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HomeMy WebLinkAboutPermit L04-026 - CITY OF TUKWILA - BECKER CODE DETERMINATION This record contains information which is exempt from public disclosure pursuant to the Washington State Public Records Act, Chapter 42.56 RCW as identified on the Digital Records Exemption Log shown below. L04-026 CITY OF TUKWILA BECKER 12633 EAST MARGINAL WAY SOUTH DIGITAL RECORDS (DR) EXEMPTION LOG THE ABOVE MENTIONED PERMIT FILE INCLUDES THE FOLLOWING REDACTED INFORMATION Page # Code Exemption Brief Explanatory Description Statute/Rul e The Privacy Act of 1974 evinces Congress' intent that social security numbers are a private concern. As such, individuals’ social security Personal Information – numbers are redacted to protect those individuals’ Social Security Numbers 5 U.S.C. sec. privacy pursuant to 5 U.S.C. sec. 552(a), and are DR1 Generally – 552(a); RCW also exempt from disclosure under section 42.56.070(1) 5 U.S.C. sec. 552(a); 42.56.070(1) of the Washington State Public RCW 42.56.070(1) Records Act, which exempts under the PRA records or information exempt or prohibited from disclosure under any other statute. Redactions contain Credit card numbers, debit card numbers, electronic check numbers, credit Personal Information – expiration dates, or bank or other financial RCW DR2 Financial Information – account numbers, which are exempt from 42.56.230(5) disclosure pursuant to RCW 42.56.230(5) except RCW 42.56.230(4 5) , when disclosure is expressly required by or governed by other law. Redactions contain information used to prove Personal Information – RCW identity, age, residential address, social security DR3 Driver’s License. – 42.56.230 number or other personal information required to (7a & c) RCW 42.56.230 (7a & c) apply for a driver’s license or identicard. Redacted content contains a communication between client and attorney for the purpose of 397, 398, 399 obtaining or providing legal advice exempt from RCW Attorney-Client Privilege – disclosure pursuant to RCW 5.60.060(2)(a), 5.60.060(2) DR4 RCW 5.60.060(2)(a); *Staff Note: An unredacted which protects attorney-client privileged (a); RCW RCW 42.56.070(1) copy of these pages from the communications, and RCW 42.56.070(1), which 42.56.070(1) record is available in the protects, under the PRA, information exempt or Staff-only portal.* prohibited from disclosure under another statute. CITYOF TUKWILA BRANDON J. MILES Re: Becker 12633 EAST MARGINAL WY S L04 -026 Any part of this ale must be reviewed by City Attorney prior to release a is Hearing exam If Out % sequence aer DCD dr\ � > / % � at �%� � . � To \ filme IN « � BACKGROUND DIRECTOR'S FINDINGS City of Tukwila NOTICE OF DECISION Department of Community Development Steve Lancaster, Director FILE NUMBER: L04 -026 APPLICATION: Code Determination by the Director of Community Development SITE ADDRESS: 12677 East Marginal Way S PROPERTY OWNER: Becker Family Revocable Living Trust APPLICANT: Robbie Russell, Attorney for Becker Family Revocable Living Trust DATE: January 28, 2005 ATTACI- IMENTS: A: Photo of the site taken in June of 2002 with Zoning Overlay B: Aerial photo of the site taken June of 1999 C: Aerial photo of the site taken October of 2000 D: Aerial photo of the site taken September of 2002 On September 14, 2004 the Department of Community Development for the City of Tukwila received a request from Robbie Russell that a formal Code Interpretation be issued by the Director of Community Development pursuant to TMC 18.96.020. The request for a Code Interpretation is for the property located at 12677 East Marginal Way South, Tukwila, Washington. Mr. Russell has requested that the Code Interpretation address whether there are any non - conforming rights related to the subject property. 1. The property in question is located at 12677 East Marginal Way South, Tukwila, King County, Washington. King County Parcel number 734560 -0685. 2. The subject parcel was annexed into the City of Tukwila in 1989 as part of the Riverton Annexation. Prior to annexation the parcel was located in unincorporated King County and subject to King County's zoning regulations. 3. The property currently is zoned both Commercial/ Light Industrial (C/LI) and Low Density Residential (I.DR) (See Attachment A). The C/LI zoning is located on the eastern half of the property and the LDR zoning is located on the western side of the property. 4. Becker Trucking Incorporated (Becker Trucking) occupied the site until April 17, 2002 when the business was relocated to 6350 S. 143 St., Tukwila, Washington. 5. Aerial photos of the site. oaken in June of 1999 and October of 2000 show the historical use of the property (See Attachment 13). The portion of the property zoned r • Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 Notice of Decision „Beskef Property, L04 -026 LDR was used to park semi - trucks and semi -truck trailers in association with the active truck terminal on the C/LI portion of the property. 6. Aerial photos of the site, taken in June and September of 2002 indicate that the site was not being used (See Attachments A and D) 7. Water records from Water District 125 show a significant reduction in water use on the property from May 15, 2002 to January 15, 2003. 8. Becker Trucking would be classified within the City's Zoning Code as a Truck Terminal. Truck Terminals are a permitted use in the C/LI District. Truck Terminals are not a permitted use in the LDR District. However, the property was legally non - conforming and Becker Trucking was permitted to operate on the site zoned LDR. 9. TMC 18.70.040 (3) states, "If any non - conforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, whichever occurs first, any subsequent use shall conform to the regulations specified by this title for the district in which such use is located ". 10. On December 31, 2002, Becker Trucking submitted a business license application to operate an unmanned truck terminal at the property in question. This business license application was submitted to the City Clerk's Office eight months after Becker Trucking relocated their business operation to 6350 S. 143 Street. Fees for business license applications are based upon the number of employees at the site, since the site at 12677 E. Marginal Way S would be unmanned, the City Clerk's Office did not require a fee. 11. On March 3, 2003, the City of Tukwila sent a letter to Roland Becker of Becker Trucking seeking clarification on the use of the property during the time period between when Becker Trucking moved from the 12677 E. Marginal Way S to their new site at 6350 S. 14r Street. There was no response to this letter. 12. The City sent another letter to Rolan Becker on July 14, 2003. The City again noted the lapse in business license activity for the property and noted the proposed use, the proposed use, an "unmanned truck terminal" was not what was grandfathered for the property. Again, the City asked for any information that indicated that the property was used as a truck terminal after Becker Trucking moved from the site. Rolan Becker never responded to the letter. 13. On October 29, 2003, the City sent another letter to Rolan Becker seeking information regarding the use of the property after Becker Trucking moved to S. 143 Street. Again, Rolan Becker did not respond to the City's letter. 14. On December 15, 2003, the City Clerk's Office denied the business license application for Becker Trucking to operate an "unmanned trucking terminal" at 12677 East Marginal Way South. An appeal period was established and no appeal was filed with the City's Clerk's Office. 15. In April of 2004, the City received complaints from neighbors of excessive noise coming from the subject property. On April 26, 2004, Brandon Miles, Assistant Planner and Kathy Stetson, Code Enforcement Officer visited the subject site and met with the operators of an apparent trucking operation. Mr. Miles asked to see a City of Tukwila business license and the operators could not produce a license from the City of Tukwila, but instead produced one issued from the City of Seattle. 16. A business license application was submitted by Edgmon and Son Trucking (Edgmon and Son) LLeioifSpril 28, 2004. The description of the business listed on the application was "trucking" the application noted that Edgmon and Son had been 2 Notice of Decision ,-8: ke Property, L04 -026 operating at the site since January 1, 2004. The application also noted that Edgmon and Son did not have a 2003 business license from the City of Tukwila. 17. The Department of Community Development sent a letter to the applicant dated May 24, 2004 seeking clarification regarding the proposed use of the property. 18. On June 10, 2004. The Department of Community Development sent a certified letter to both the applicant and the property owner (Becker Family Revocable Living Trust) regarding the business license application. The City noted that according to City records the non - conforming use right for the property had expired. The City asked for documentation indicating that the non - conforming rights had not been abandoned and that such documents be provided to the City within 14 -days from the date of the letter. 19. A letter was submitted to the City by Robbie Russell dated July 19, 2004. The letter did not provide any documentation regarding the use of the property. 20. On August 2, 2004, Bob Edgmon, of Edgmon and Son Trucking sent a fax to the City. The fax was a "Statement of Trucking Use ". According to Bob Edgmon this "Statement of Trucking Use" was delivered to him by Ed Becker. The Statement of Trucking Use provided dates that the property in question was used as trucking terminal. Pat Becker, President of Becker Transfer provided the following handwritten comment "I parked a number of trailer along the west end of property, as well as other parts of the property (sic) ". The City never received the original Statement of Trucking Use from the Edwin Becker. 21. On August 3, 2004, the City Attorney's Office responded to Mr. Russell's letter and again the City established a period to provide documentation that would show that the City's time period for the property is incorrect. The requested documentation was never provided. 22. On August 30, 2004, the City Clerk's Office denied the business license application for Edgmon and Son Trucking. The business license denial was based on two main issues: 1) Business license records indicate a gap in use of the property as truck terminal from April 17, 2002 to January 1, 2004; 2) Failure of the property owners to provide documentation regarding the use of the property from April 17, 2002 to January 1, 2004. An appeal period was established and no appeal was filed. 23. On October 1, 2004, Edgmon and Son Trucking relocated their trucking business to 2550 S. 102n Street. 24. A letter requesting a Code Interpretation for the property was received by the City on September 14, 2004. The letter was from Robbie Russell, Attorney for Becker Living Trust. 25. On October 22, 2004, Jack Pace Deputy Director with the Department of Community Development sent a letter to Mr. Russell noting that according to the information available to the City it appeared that the non - conforming right for the property had expired. Mr. Pace gave Mr. Russell 14 -days to submit additional information for the City to review if they wished to rebut this information. No additional information was submitted to the City within the 14 -day period established by Mr. Pace's letter. 26. On December 1, 2004, additional information was submitted to the City from Robbie Russell. The following items were submitted: A. A Declaration from Clayton M. Betz who is the accountant for Becker Living Trust. The Declaration notes that Edwin J. Becker purchased the site in 1974 for the purpose of developing and operating a truck terminal. The Declaration notes that Becker Trucking had leased the site from April 1, 3 ,Notice of Decision ,,B=kex Property, L04 -026 1997 through October of 2002. It was also noted that Becker Transfer also used the terminal for the transfer and storage of freight and equipment from October of 2002 through January of 2003. It was further noted that Edgmon and Son Trucking leased the property starting on January 23, 2003 and that Edgmon and Son took possession of the site on February 1, 2003. (As previously noted, Edgmon and Son operated a Trucking Operation). B. Excerpts of a contract between Edwin J. Becker and Rolan Becker. A complete contract was not provided and only Edwin J. Becker had signed the contract. C. Excerpts of a contract between Edgmon and Son Trucking and Edwin J. Becker. 27. On December 2, 2004, Jack Pace Deputy Director of Community Development sent a letter requesting that the complete, signed contract between Edwin Becker and Becker Trucking be provided to the City. 28. On December 13, 2004, Jack Pace Deputy Director of Community Development faxed and mailed (certified and regular) another letter requesting that the complete signed contract between Edwin Becker and Becker Trucking be provided to the City. 29. On December 23, 2004, the City received the complete signed contract between Edwin Becker and Becker Trucking. 30. On December 23, 2004, A Declaration from Rolan Becker was also provided to the City. The Declaration noted that Becker Trucking had used the property in question through January of 2003 until the site was leased to Edgmon and Son Trucking. Rolan Becker's Declaration also noted the following, "The nature of our operations at the Marginal Way Terminal during the transition period involved all aspects of freight terminal operations including dispatching, loading, and unloading of freight, use of the dock and warehouse for freight storage and transfer, parking, and storage of trailers and rolling stock, and other uses associated with truck terminal operations." 31. On January 21, 2005 a Declaration from Patrick Becker was submitted to the City. The Declaration noted that Patrick Becker operated Becker Transfer Company at the site from October of 2002 through January of 2003. DIRECTOR'S DETERMINATION Historical Use Based on information available to the City, the LDR portion of the property was used to park semi - trucks and semi -truck trailers. The LDR portion of the property was not used as a truck terminal and was limited to only the parking of semi - trucks and semi -truck trailers. This area of the property was used in conjunction with the main building on the property, which is zoned C/LI. When the City annexed this area in 1989 and later adopted its current zoning regulations, a portion of the property was zoned LDR. Since the LDR portion of the property was historically used to park semi - trucks and semi -truck trailers it was vested non - conforming and the LDR portion of the property was allowed to be used for semi -truck and semi -truck trailer parking. 4 ,Notice of Decision"'' .Becket Property, L04 -026 Non - Conforming Rights of property City records clearly show that Becker Trucking relocated their business to S. 143` Street in April of 2002 (Finding 4). Becker Trucking and Becker Transfer submitted business license applications to operate on the property in question. However, neither of the applicants responded to repeated requests by the City to provide additional information regarding the use of the property. Based upon the Declarations provided to the City by Mr. Russell, it has become apparent that Becker Trucking and Becker Transfer were operating at the site without a business license. Additionally, according to the Declarations provided by Mr. Russell, Edgmon and Son Trucking also operated a business in violation of City Code at the site by failing to obtain a business license from the City of Tukwila. In fact Edgmon and Son Trucking only submitted for the license after City employees discovered they were operating at the site (Finding 16). As part of the review of the Edgmon and Son business license application, the City requested that information be provided regarding the non - conforming status of the property. The requested information was never submitted to the City. The City denied the business license application on August 30, 2004; 81 days after the City requested that the property owner produce documents regarding the non - conforming rights for the property. While Becker Trucking, Becker Transfer, and Edgmon and Son Trucking were operating at the site without a business license, based upon the Declarations provided to the City, the signed contract between Edwin J. Becker and Becker Trucking Incorporated it is established that they were in fact operating a truck terminal on the C/LI portion of the site and were using the LDR portion for the parking of semi - trucks and semi -truck trailers and thus the non - conforming rights for the LDR portion of the property have not been abandoned. Any future uses of the LDR portion of the property must either be allowed in the underlying zoning or be permitted as a non - conforming right. The non - conforming rights are as follows: Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal. The non - conforming rights for the property must be used in a manner consistent with TMC 18.70.040 (3). TMC 18.70.040 (3) notes, "If any non - conforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, whichever occurs fist, any subsequent use shall conform to the regulations specified by this title for the district in which such use is located ". It should be noted that, according to Edgmon and Son Trucking they vacated the property on October 1, 2004. Thus, the six -month period began on October 2, 2004. 5 , Notice of Decision Becket Property, L04 -026 Please note that merely parking a semi -truck or semi -truck trailer on the property will not preserve the non - conforming right. The LDR portion of the property must be used in conjunction with the building on the property. APPEALS This Code Interpretation by the Director may be appealed to the Hearing Examiner. The appeal shall be a Type Two decision and shall be processed pursuant to TMC 18.108.020 and TMC 18.116. All appeals shall be filed with the Department within 14 -days from the date of this letter. The Notice of Appeal must include the following (TMC 18.116.030): 1. The name of the appealing party. 2. The address and phone number of the appealing party; and if the appealing party is a corporation, association or other group, the address and phone number of a contact person authorized to receive notices on the appealing party's behalf. A statement identifying the decision being appealed and the alleged errors in that decision. The Notice of Appeal shall state specific errors of fact or errors in application of the decision being appealed; the harm suffered or anticipated by the appellant; and the relief south. The scope of the appeal shall be limited to matters or issues raised in the Notice of Appeal. Pace, Deputy Director 4 4 40 ate: 6 =":+' • fl","1'..77-77,777 7"7".77.7.77+,mz, • . , - Legend Property Lines Zoning Lines ate LL4.7. Zoning Designations ATTACHMENT A d- • A1/ POW kl UL. _.i N.) 1. Article Addressed to: 0 ru rr m Postag • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the maliplece, , or on the front If space permits. U.S. Postal Servicerm _ CERTIFIED MAIL. RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) For delivery information visit our websiteSt tivww.usps.coms, , Certified Fee 0 0 Return Redept Fee (Endorsement Required) ReStrldad WIWI/ Fee ..O (Endorsement Required) ru ru Total postage & Fees ci Robie Russell P- 316;i4 ''''''''' 76 Main St. or PO Box No. -61IS State Z/F" Seattle, WA 98104-2514 , . See Reverse for Instruction RECEIVE Robie Runge 11 Attorney at Law 76 Main St. Seattle, WA 98104.-q.14 DEVELopmen 2. Article Number (flansfer from service lobe() PS Form 3811. August 2001 FEB (I 1 200 commuNny SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON LIVERY B r d ived (Print ame) 0 Agent O Addressee Lrr °Wry Domestic Return Receipt D. Is delivery address different from item 1 0 Yes If YES, enter delivery address below: 0 No SrvI Type % Certlfied Mall Registered d Insured Mail Postmark Here 4. Restricted Delivery? (Extra Fee)' 0 Express Mall o Retum Receipt for Merchandise 0 C.O.D. 7003 2260 0006 4392 8570 0 Yes 102595-02-M-1540 Transmittal Letter via US Regular Mail TO: Ms. Anne Watanabe Office of the Hearing Examiner City of Seattle PO Box 94729 Seattle, WA 98124 -4729 Mr. William John Crittenden Attorney at Law 927 North Northlake Way, Suite 301 Mr. Robbie G. Russell Attorney at Law 76 South Main St. Seattle, WA 98104 -2514 Attached please find the DCD staff report regarding the Becker Appeal. Transmitted July , 2005 Cizy of Tukwila Department of Community Development Steve Lancaster, Director Bran on J. Miles, Assistant Planner Steven M Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 City of Tukwila Department of Community Development Steve Lancaster, Director STAFF REPORT TO HEARING EXAMINER Prepared July 12, 2005 FILE NUMBER: L04 -026 APPLICATION: Appeal of Code Interpretation issued by the Director on February 28, 2005. SITE ADDRESS: 12633 and 12677 East Marginal Way S, King County Parcel Numbers 734560 -0685 and 7345600766. PROPERTY OWNER: Becker Family Revocable Living Trust ZONING: The property contains split zoning and is zoned both Commercial/Light Industrial (C/LI) and Low Density Residential (LDR). NOTIFICATION: There is no notification requirement for an appeal of a Code Interpretation. PREPARED BY: Planning Staff ATTACHMENTS: A. King County Rezone Application submitted by Edwin Becker B. Report and Recommendation to the King County Council from the Office of the Zoning and Subdivision Examiner, including site map C. Motion 4301 King County Council D. Public Comment Letters from County Rezone Application E. Environment Assessment prepared by King County Department of Planning and Community Development F. King County Ordinance 7121 G. GIS MAP with zoning overlay H. Aerial Photo, May 5, 1980 I. Aerial Photo, July 10, 1990 J. Aerial Photo, September 22, 1995 K. Aerial Photo, June 23, 1999 L. Aerial Photo, October 6, 2000 M. Aerial Photo, September 22, 2002 N. Staff Photos of Site, May 13, 2003 O. Declaration from Troy Wallin, Neighbor of the property P. Declaration from Brie Campbell, Neighbor of the property Q. Declaration of Aaron Hundtofte, Neighbor of the property R. Business License Application submitted by Becker Trucking on December 31, 2002 S. Letter from Rolan Becker, faxed to the City on February 18, 2003 T. Business License Application submitted by Edgmon and Son Trucking U. Statement of Trucking Use Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 Staff Report Becker Appeal, L04 -026 BACKGROUND On September 14, 2004 the Department of Community Development for the City of Tukwila received a request from Robbie Russell that a formal Code Interpretation be issued by the Director of Community Development pursuant to TMC 18.96.020. The request for a Code Interpretation is for the property located at 12633 and 12677 East Marginal Way South, Tukwila, Washington. Mr. Russell requested that the Code Interpretation address whether there are any non - conforming rights related to the subject property. On January 28, 2005, the Department of Community Development issued a Notice of Decision in response to Mr. Russell's request. The City made the following decision regarding the non- conforming rights on the LDR portion of the property: Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal. The City concluded that there are no non - conforming rights for the C/LI portion of the property. The City is now amending its decision to state that the non - conforming use in the LDR zone is accessory parking to the building on the C/LI portion of the property. The Notice of Decision set forth appeal procedures and an appeal period. On February 10, 2005 a timely appeal was filed with the Department of Community Development. Under Tukwila Municipal Code (TMC) 18.116 the appeal filed by the appellant is limited only to those issues raised in the Notice of Appeal submitted to the City on February 10, 2005. The applicant is not asking the Hearing Examiner to provide any specific remedy. The City seeks the following: SCOPE OF HEARING 1. The Appeal should be dismissed. The appellant did not meet the appeal procedures laid out in TMC 18.116.030, which was also included in the City's Notice of Decision. The appellant has never demonstrated how the Director's Code Interpretation issued by the City on January 28, 2005 harms Edwin Becker or the Becker Family Revocable Living Trust. TMC 18.116.030 (3) specifically requires that the appellant note the actual harm suffered or anticipated harm. Additionally, Edwin Becker and the Becker Family Revocable Living Trust no longer own the property in question. 2. Affirm the City's conclusion that the non - conforming rights associated with the LDR portion of the property is limited to accessory parking. Such a conclusion is consistent with the City's non - conforming regulations and Washington State Law. 2 Staff Report Becker Appeal, L04 -026 FINDINGS OF FACT 1. The property in question is located at 12633 and 12677 East Marginal Way South, Tukwila, King County, Washington. King County Parcel Numbers 734560 -0685 and 7345600766. The abbreviated legal description of the property is 9 Riverton Addition Lots 18 through 25. 2. On January 23, 1979, Edwin J. Becker, the property owner, submitted an application for a zone reclassification at the subject site (See Attachment A: King County Rezone Application). The rezone application was to change the zoning from MLPUD to MLP. Item number 11 of the Rezone application asked the applicant to note the existing development on the subject property. Mr. Becker provided the following response, "Office space, truck terminal and vehicle parking." 3. On May 18, 1979, the Hearing Examiner for King County made a recommendation to the King County Council approving the rezone application with conditions (See Attachment B: Report and Recommendation to the King County Council from the Office of the Zoning and Subdivision Examiner, including a site map.). On June 11, 1979, the King County Council adopted Motion 4301. Motion 4301 adopted and incorporated the Hearing Examiner's findings and conclusions as the Council own findings and conclusions (Attachment C). The Findings of the Hearing Examiner, later adopted by King County Council, provide a historical record of the use of the property. Finding Number seven notes, "The site plan submitted by the applicant shows the proposed building expansion (40'x 69.6') and parking for 34 vans and 31 semi - trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition of the building (See Attachment B: Report and Recommendation to the King County Council from the Office of the Zoning and Subdivision Examiner, with Site Map ) ". Mr. Becker constructed the new addition and added the new entrance to the site. One of the conditions placed on the rezone application by the Hearing Examiner was as follows: "The truck fleet on the site is to be limited to a combination of 96 units -a unit being defined as a van, a tractor, or a trailer (a combination tractor and trailer equals two units) ". 4. As part of the rezone application, the County engaged in significant amount of public notification and received a significant number of public comment letters. The public comment letters provide further background as to the historic use of the property (See Attachment D: Public Comment Letters from County Rezone Application). The letters provided reference Mr. Becker's Trucking Fleet. 5. King County also did an environmental assessment of the proposed rezone. As part of the analysis, staff noted the following: "The site plan submitted by the applicant shows the proposed building expansion (40' x 69.6') and parking for 34 vans and 31 semi -truck trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition to the building" (Attachment E: Environment Assessment prepared by King County Department of Planning and Community Development). 6. On February 25, 1985, the King County Council passed Ordinance 7121 which formally changed the zoning on the subject property from MLPUD to MLP (Attachment F). 7. The subject property was annexed into the City of Tukwila as part of the Riverton Annexation in 1989. Prior to annexation the parcel was located in unincorporated King County and subject to King County's zoning regulations. At the time of annexation the property was zoned MLP by King County. The MLP zoning was enacted by King County Ordinance 7121 (Attachment F). At the time of annexation Becker Trucking was operating at the subject site. Becker Trucking would have been operating under Ordinance 7121 and any conditions that were placed on the operation by the County. 8. The property is currently zoned both Commercial/Light Industrial (C/LI) and Low Density Residential (LDR). (See Attachment G: GIS MAP with zoning overlay). The C/LI zoning 3 Staff Report Becker Appeal, L04 -026 is located on the eastern half of the property and the LDR zoning is located on the Western side of the property. The LDR portion of the property makes up lots 18, 19, and 20 of Block 9 of the Riverton Addition. Located on the C/LI portion of the property is a building, which has previously been used has a truck terminal (The appellant has stated this fact in the Notice of Appeal). Additionally, the northern portion of the property was used to park trucks and trailers (See Attachments A -G, Attachment H: Aerial Photo of site taken May 5, 1980, Attachment I: Aerial Photo of the site taken July 19, 1990, Attachment J: Aerial photo of the site taken September 22, 1995, Attachment K: Aerial photo of the site taken June 23, 1999, Attachment L: Aerial photo of the site taken October 6, 2000, Attachment M: Aerial photo of the site taken September 22, 2002, and Attachment N: Staff photos of the site taken May 13, 2003). The LDR portion of the property is gravel and contains no structures (See Attachment G -O). The LDR portion of the property was used to park semi trucks and trailers (See Attachments A, B, D, E, G -O, Attachment 0: Declaration from Troy Wallin, Neighbor of the property, Attachment P: Declaration from Brie Campbell, Neighbor of the property and Attachment Q: Declaration from Aaron Hundtofte, Neighbor of the property). According to the site plan that was approved by King County a total of 20 parking spaces were permitted on the portion of the property now zoned LDR (Attachment B). 9. TMC 18.10 governs permitted, accessory, and conditional uses in the LDR zone. 10. Becker Trucking operated a Truck Terminal on the C/LI portion of the property (the appellant has stated this fact in the Notice of Appeal). TMC 18.30 permits truck terminals in the C/LI zone. Becker Trucking's accessory parking was considered a non - conforming use on the LDR portion of the property. TMC 18.06.590 defmes a non - conforming use as the use of land, which does not conform to the use regulations of the district in which the use exists. 11. Webster's Third New International Edition Dictionary defmes a Truck Terminal as, "Either end of a carrier line (as a railroad, trucking or shipping line, or airline) with classifying yards, dock and lighterage facilities, management offices, storage yards, and freight and passenger stations." 12. Becker Trucking Incorporated (Becker Trucking) occupied the site until April 17, 2002 when the business relocated to 6350 S. 143r St., Tukwila, Washington. Becker Trucking operated a truck terminal in the main building and parked semi trucks and semi truck trailers on the remaining property area. The parking area was also used for employee parking. 13. TMC 18.70.040 provides restrictions on the expansion and continuation of non - conforming uses. There are six specific requirements: 1. No such non - conforming use shall be enlarged, intensified, increased or extended to occupy a greater use of land, structure, or combination of the two, than was occupied at the effective date of adoption of this title; 2. No non - conforming use shall be moved or extended in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this title; 3. If any such non - conforming use ceases for any reasons for a period of more than six consecutive months, or a total of 365 days in a three -year time period, whichever occurs first, any subsequent use shall conform to the regulations specified by this title for the district in which the use is located; 4. No existing structure devoted to a use not permitted by this title in the zone in which it is located shall be structurally altered, expect in changing the of a structure to use permitted in the zone in which it is located; except where minor alterations are made, pursuant to TMC 18.70.050 (1), TMC 18.70.060, or any other pertinent section, herein; 4 Staff Report Becker Appeal, L04 -026 5. If the change of use is proposed to a use determined to be a non - conforming use by application of provisions in this title, the proposed new use must be a permitted use in its zone or a use approved under a Conditional Use or Unclassified Use Permit process, subject to review and approval by the Planning Commission and/or City Council. For purposes of implementing this section, a change in use constitutes a change from one Permitted, Conditional, or Unclassified Use category to another such use category as listed within the zoning code. 6. Any structure, or structure and land in combination, in or which a non - conforming use is superceded by a permitted use, shall thereafter conform to the regulations for the zone in which such structure is located, and the non - conforming may not thereafter be resumed. 14. On December 31, 2002, Becker Trucking submitted a business license application to operate an unmanned truck terminal at the property in question. The business license application was submitted to the City Clerk's Office eight months after Becker Trucking relocated their business operation to 6350 S. 143 Street. Fees for business license applications are based upon the number of employees at the site. Since the site at 12677 East Marginal Way South would be unmanned, the City Clerk's Office did not require a fee (See Attachment R: Business License Application, submitted by Rolan Becker). After repeated requests by the City for the applicant to provide clarification on the "unmanned truck terminal" operation, the City denied the business license application. An appeal of the business license denial was never filed. 15. On February 18, 2003, Rolan Becker faxed a letter to the City of Tukwila regarding the use of the property at 12677 East Marginal Way South (Included as Attachment S). In the letter Rolan Becker notes: "I am writing to verify that the Becker Trucking has used this property since April 2002 to park semi -truck and trailers. It has always been our intent to continue to use this property for commercial parking of semi - tractors, trailers, and employee vehicle parking ". 16. On April 28, 2004, a business license application was submitted by Edgmon and Son Trucking (Edgmon and Son) LLC. The description of the business listed on the application was "trucking" the application noted that Edgmon and Son had been operating on the site since January 1, 2004. The application also noted that Edgmon and Son did not have a 2003 business license from the City of Tukwila. 17. According to City staff conversations with the operators, Edgmon and Son Trucking is a trucking company and only utilizes semi - trucks. 18. Bob Edgmon noted to City staff that he first viewed the property in December of 2002. When Mr. Edgmon walked the site he noticed that there was a truck trailer parked on the gravel area along the western property line (this is the portion of the property zoned LDR). Mr. Edgmon also noted that he was specifically informed when he leased the property to keep vehicles parked on the LDR portion of the property to preserve the non - conforming rights. 19. On June 10, 2004, the Department of Community Development sent a certified letter to both the applicant and the property owner (Becker Family Revocable Living Trust) regarding the business license application. The City noted that according to City records the non- conforming use of the property had expired. The City asked for documentation indicating that the non - conforming rights had not been abandoned and that such document be provided to the City within 14 -days from the date of the letter. 5 DISCUSSION Staff Report Becker Appeal, L04 -026 20. On August 2, 2004, Bob Edgmon, of Edgmon and Son Trucking sent a fax to the City. The fax was a "Statement of Trucking Use ". In the Statement, Patrick Becker handwrote the following: "I parked a number of trailer along the west end of the property as well as other parts of property (sic) ". The west end of the property is the portion of the property zoned LDR (Attachment (U). 21. Site visits by planning staff indicated that Edgmon and Son Trucking used the western gravel area from January of 2004 to October of 2004 to park semi - trucks and semi -truck trailers. 22. The City also conducted interviews with surrounding neighbors regarding the historical use of the subject property. Aaron Hundtofte, Brie Campbell, and Troy Wallin all noted to City staff that the western portion (the LDR zone) of the property had historically been used to park semi - trucks and semi - trailers (Attachments 0, P and Q). In order to determine if there are any non - conforming rights associated with any piece of property the City must answer the following questions: 1) What is the zoning of the property? 2) What are the permitted uses in that zone? 3) What is the non - conforming use that may be occurring on the property? Is the non- conforming use listed as a use category in the zoning code? 4) Was the alleged non - conforming use legally established? 5) At any point did the non - conforming use cease operations for a period of six months or 365 days in a three -year period? 1. What is the zoning of the property? As the findings show the property contains split zoning. Lots 18, 19, and 20 of the Riverton Additional are zoned LDR. The remaining portion of the property is zoned C/LI. 2. What are the permitted uses in the zone? The LDR zoning permits single - family residential dwellings as well as those uses that incidental or accessory to residential uses (TMC 18.10). Commercial and Industrial uses are not listed as permitted uses m the LDR zone. TMC 18.30 permits a wide range of uses in the Commercial/Light Industrial zone. Some of these uses include, automotive services, heavy equipment repair and savage, motels, offices, and light industrial operations. 3. What is the non - conforming use that may be occurring on the property? Is the non- conforming use listed as a use category in the zoning code? As the City's findings clearly demonstrate, the historic use of the property has been as a truck terminal and associated parking. As noted the property contains duel zoning. There are no non - conforming rights for lots 21, 22, 23, 24, and 25 of the Riverton Addition. These lots are zoned C/LI and a truck terminal would be permitted in the zone. As previously noted a truck terminal is defined as, "Either end of a carrier line (as a railroad, trucking or shipping line, or airline) with classifying yards, dock and 6 Staff Report Becker Appeal, L04 -026 lighterage facilities, management offices, storage yards, and freight and passenger stations (Webster International Dictionary Third Edition) ". Indeed many of these functions were occurring in the C/LI portion of the property. The building includes a place to transfer cargo, offices for employees, a warehouse areas, and parking for trucks and private passenger vehicles. TMC 18.30.010 (61) lists a Truck Terminal as a permitted use in the C/LI zone. There are no non - conforming rights for the C/LI portion of the property. All uses in that zone are outright permitted under the City's zoning code. A use cannot be non - conforming if it is outright permitted. The question now arises as to what use is occurring on the portion of the property zoned LDR, which are lots 18, 19, and 20 of Riverton Addition. There are no structures on these lots, only gravel. A review of old King County land use files, aerial photos, and interviews with neighbors reveal that the property has been used to park trucks and other vehicles associated with the building on the C/LI zone. However, there is no evidence that a truck terminal is currently occupying the LDR portion of the property. There are no offices, there are not loading docks, or warehouse facilities. The use on the LDR portion of the property is providing accessory parking for the building that is located on C/LI portion of the property. TMC 18.06.615 provides a definition of parking space, "Means an off -street parking space which is maintained and used for sole purpose of accommodating a temporary parked motor vehicle and which has access to a street or alley." The use that is occurring on the LDR portion of the property clearly falls into this defmition. Parking is listed as a specific use category in the City's zoning code. Its is allowed as a permitted accessory use in all commercial and industrial zones. However, it is not listed as a permitted use in the LDR zone (TMC 18.10.020). TMC 18.06.590 notes that any use of land which does not conform to the use regulations of the district in which the use exists is considered a non - conforming use. Thus, the accessory parking area in the LDR zone is the non - conforming use. 4. Was the alleged non - conforming use legally established? The parking use on the LDR zone can only be non - conforming if the use was legally established either in the City of Tukwila prior to a zone change or in King County prior to annexation by the City. The findings clearly show that accessory parking area was legally established. The site map provided and aerial photos clearly shows that the western portion of the property, which is now zoned LDR, was used to park semi - trucks and trailers. 5. At any point did the non - conforming use cease operations for a period of six months or 365 days in a three -year period? 7 Staff Report Becker Appeal, L04 -026 While there is a gap in the business license records for the building located on the C/LI portion of the property, the gap is irrelevant since there are no non - conforming rights on the C/LI portion of the property. The provisions of TMC 18.70.040 (3) do not apply to this portion of the property. The trucking operation could cease for a period greater than six months and could still reestablish on the C/LI portion of the property. The question arises as to the use of the parking area in the LDR zone. In the Statement of Trucking Use for the property, Patrick Becker clearly states that he parked trucks on the LDR portion of the property. Since the City has no way to dispute this claim it must conclude at no point did the LDR portion of the property meet the time limits set forth in TMC 18.70.040 (3). The non - conforming parking use is still vested and may continue to operate. The Beckers clearly understood what actions on their part would preserve the non - conforming rights for the LDR zone. This fact if evident by referring to Attachment S and Attachment U in which the Beckers provide statements regarding parking on the site and their intent not to abandon the use. Additionally, the Beckers were sure to always keep some vehicle parked on the LDR zone, even when the truck terminal on the C/LI site was unoccupied. RESPONSE TO APPELANT'S NOTICE OF APPEAL The appellant has noted in their Notice of Appeal that the City has conceded that the property was being used as a Truck Terminal. The appellant is correct in this statement. The City does concede that the portion of the property zoned C/LI was in fact used as a truck terminal. However, as has been demonstrated the use of this portion of the property as a truck terminal is outright permitted. The City has never conceded that the portion of the property zoned LDR has been used as an actual truck terminal. The appellant, on page four (4) of the Notice of Appeal notes, "The LDR portion of the property is a part of a larger truck terminal and is a valid nonconforming use as a truck terminal ". The appellant provides no documents or evidence to show that the LDR portion of the property was used as a truck terminal. The appellant's argument that the gravel, underdeveloped portion of the property zoned LDR should be considered a truck terminal is a propitious argument that is not supported by any facts, nor is such an argument consent with the historical use of the property. Webster Third New International Dictionary provides the following defmition of terminal: "Either end of a carrier lines (as a railroad, trucking, or shipping line or airline) with classifying yards, dock and ligtherage facilities, management offices, storage sheds, and freight and passenger stations ". To even begin to consider the LDR portion of the property as a truck terminal, a majority of these activities would have to be taking place in the LDR portion of the property. There would have to be at least a building in the LDR zone. The only activity that is taking place on the property and which has historically taken place on the property is accessory parking. The record that the City has provided clearly shows that the LDR portion of the property does not contain any of the following: • Docks, • Ligtherhage facilities, • Offices, 8 Staff Report Becker Appeal, L04 -026 • Storage Sheds, • Freight Station; or • A building of any type The appellant's argument that the LDR portion of the property should be considered a truck terminal would carry more validity if a portion of the existing building extended into the LDR zone. An interpretation that the LDR zone is a truck terminal would allow the existing truck terminal building on the C/LI portion of the property to expand onto the LDR zone. It would also allow the existing building to be demolished and relocated on the LDR zone. The appellant also notes that the City should have limited its inquiry to whether the time limits set forth in TMC 18.70.040 had expired and thus expiring the non - conforming rights. The appellant notes, "The City's attempt to restrict the use of the property is beyond the scope of the requested interpretation, which was directed at the question of whether the non - conforming use was abandoned or terminated (4)." In order to determine if the non - conforming rights have been abandoned or terminated the City must first determine what the actual non - conforming rights are. If the City does not know what the non- conforming use is, how then can the City say that the non - conforming right has not stopped operating for a period of six consecutive months or 365 days in a three year period? The City's interpretation that the non - conforming use on the LDR portion of the property is limited to only parking does not interfere with the use of the building on the C/LI portion of the property as a truck terminal. In fact, no where in the appellant's Notice of Appeal is it noted how such an interpretation would harm Edwin Becker or the Becker Family Revocable Living Trust. The City interpretation actually allows for more flexibility for the property. Accessory parking could be for any use on the C/LI portion of the property, not just parking in association with a truck terminal. For example if a restaurant wanted to locate on the C/LI portion of the property, required parking could be located in the LDR zone. CONCLUSION The LDR portion of the property is vested non - conforming for accessory parking. Parking is a use category in the City's zoning code. The parking use was legally established in King County prior to annexation of the property by the City of Tukwila. The non - conforming use has never ceased operating a period longer than six months or 365 days in a three -year period. There are no non - conforming rights for the property that contains the truck terminal. A truck terminal is an outright permitted use in the C/LI zone and thus cannot be non - conforming if it is permitted. The parking that is occurring on the C/LI portion of the property is also a permitted use. 9 AM PM 71819110111112 AREA Location ***** * * * * * * * * ** * * * * * * * * * * *'' * *DO NOT WRITE ABOVE THIS LINE * * * * * * **** * * * * * * * * * * * * * * * * * * * ** I (WE) THE UNDERSIGNED OWNER(S) OF PROPERTY NUMBERED OPPOSITE MY (OUR) NAMES) HEREBY PETITION FOR A ZONE RECLASSIFICATION OF PROPERTY DESCRIBED HEREIN FROM , 1 D TO ' NL P STATE OF WASHINGTON SS: COUNTY OF KING I, Edwin J. Becker 0 BEING DULY SWORN, DEPOSE AND SAY THAT I AMA PROPERTY OWNER OR OFFICER OF THE CORPORATION OWNING PROPERTY SHOWN ON PARCEL #1 ON ASSESSOR'S MAP AND THAT I HAVE FAMILIARIZED MYSELF WITH THE RULES AND REGULATIONS OF THE BUILDING & LAND DEVELOPMENT DIVISION WITH RESPECT TO PREPARING AND FILING THIS APPLICATION AND THAT THE FOLLOWING STATEMENTS, ANSWERS AND INFORMATION SUBMITTED PRESENTS THE ARGUMENT IN BEHALF OF THIS APPLICATION AND ARE IN ALL RESPECTS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. Address Date JAN 2 3 1979 12677 E. Marginal Way South APPLIL,ION FOR ZONE RECLASSIFICA". JN KING COUNTY, WASHINGTON Application Number Application Name Schd.•Hearing STR OU 0-z3- Kroll & Book No. 3/3 - .3 Acreage /,9/ 228 79 R Ref. File No. City /State Seattle, Washington Signature g Zip 98168 Phone 246 -9500 For V Parcel Name 2 2achiblt Ito .rr.wL...... rs 1 tem No 1-79 . fl ( �c r \ 1.9 C Received( /L,� S ti l �R Q NOTARY SE Ain C ount Uri* e nwe�s.,yotary Pu bZie in or the State of U_}0,_ B Y • YUP OTHER PROPERTY OWNERS INCLUDED IN TIiIS APPLICATION MUST BE LISTED BELOW OPPOSITE A "PARCEL" NUMBER WHICH IS ALSO SHOWN ON THE ASSESSOR'S MAP AND INDICATES THE PROPERTY OWNED BY EACH APPLICANT. Address Parcel Name 3 Address Parcel Name 4 Address Examiner at ****************************** 4********************* 4************ * * * ** * * * * ** * * * * * ** * * ** * * * * * * ** State below the name, contacted for further Name Edwin J. Becker Signature City /State Signature City /State Signature City /State Address 12677 E. Marginal Way sel City /State Seattle, Washi ngtnn Zip 9R148 Phone F -152 11/78 7/0 A:ette:r-t Zone Exist Zone Request 14 Zone Granted Ordinance # Receipt No. In$14wi's 3 7166 1 1/23/71 ±W „,L 246 -9500 6214.- (Give corporation or company name) SUBSCRIBED AND SWORN TO ME THIS jr,brKA DAY OF ATTACHMENT A Zip Phone address and phone number of person or persons to be details on this application. F -152 11/78 ZONE RECLASSIFICATION 1. Existing Zone: M L P U D 2. Requested Zone: 3. Acreage: 2 Acreas 6. Sec. -Twp. - Range: W 10 - 23 - & W 15 - 23 - 4. Water District: # 125 7. Sewer District: Val Vue 1 5. Fire District: # 18 M LP ATTACHMENT "C" ...22S 79 R 8. School District: So. Central # 406 9. Has an environmental assessment or environmental impact statement been prepared for the proposed development? If yes, submit with this environmental evaluation form. (X ) Yes ( ) No 10. Do you believe an Environmental Impact Statement should be prepared on this proposal? NO 11. Development existing on subject property:Office space, truck terminal and vehicle parking 12. Development on adjoining properties: parking lot south side and empty lot north side 13. Neighborhood land use characteristics: ML - CG - MH - & Residential 14. Public roads which provide access to the site: So. 128th. Street and East Marginal Way South 15. Have you made this request, or your planned development, known to interested community groups or neighboring property owners? ( ) Yes (X ) No. If yes, who have you notified and what were their reactions? F -152 11/78 16. What effect will the proposed zoning and contemplated use of the subject property have on adjoining or neighboring properties? None 17. How can the uses permitted within the proposed zone be made compatible with uses permitted on abutting property of dissimilar zoning? Same buffer zone as before 18. To the best of your knowlege , was any reclassification request on this property made at the time of the last area zoning? Have any previous reclassification requests for this property been made in years past? part (1) - Yes part (2) - Yes 19. Since the last previous area zoning of the subject property , have authorized public improvements , private development or other circum- stances materially or significantly affected the property? (x ) Yes ( ) No. If "yes", what are the changed circumstances, and how have they affected the property? I have installed street sipwalks and curs in co ormance w reg. 20. Is this logical expansion of any existing adjacent zone? Yes 21. What King County Comprehensive Plan principles and policies regard- ing arterials; business, residential, etc. , support this request? NONE 22. Is the water district or distributor capable of serving the property adequately to meet County fire protection standards and to meet the demand created by the use intensity that could be created by the zoning reclassification requested. YES 23. You may submit any additional information (sketches, engineering reports , petitions , photographs , etc.) which you believe will justify, clarify , or will assist in the granting of your requested zone reclassifi- cation. Further , the Building & Land Develtpment Division or the Zoning & Subdivision Examiner may at any time request further Infor- mation or studies for these purposes. Other evidence which supports this application: Yes - site plan for addition SUBJECT: SUMMARY OF RECOMMENDATIONS: Division's preliminary: Division's final: Examiner: PRELIMINARY REPORT1 PUBLIC HEARING: Exhibit No. 1: Exhibit No. 2: Exhibit No. 3: Exhibit No. 4: Exhibit No. 5: Exhibit No. 6: May 18, 1979 OFFICE OF THE ZONING AND SUBDIVISION EXAMINER KING COUNTY., WASHINGTON REPORT AND RECOMMENDATION TO THE KING COUNTY COUNCIL. Building and Land Development File No. Proposed Ordinance No. 79 -240 EDWIN J. BECKER ML (PUD) to ML -P 228 -79 -R 2.1 acres lying at the southwest corner of East Marginal Way South and South 128th Street. Approve ML -P, in lieu tions. Approve ML -P, in lieu of ML, tions (modified) . Approve ML -P, in lieu of ML, tions-(modified). of ML, subject to condi- subject to condi- subject to condi- The Building and Land Development preliminary report on Item 228 -79 -R was received by the Examiner on March 15, and May 1, 1979. After reviewing the Building and Land Development report, examining available information on file with the application and visiting the property and surrounding area, the Examiner conducted a public hearing on the subject as follows: The hearing on Item 228 -79 -R was opened by the Deputy Examiner at 2:40 P.M., March 22, 1979. Ms. Powers, Building and Land Development, offered the following exhibit: Application dated January 23, 1979. Environmental Checklist dated January 23, 1979. Declaration of Non - Significance dated February 21, 1979. Building and Land Development's preliminary report dated March 22, 1979. Assessor map of the SA of Section 10 -23 -4 showing subject property outlined in red. Two Land Use Sheets marked: 6 -1: 315W 6 -2: 324W (to be retained in the Division's permanent working files). Correspondence contained in the Division's final but not referenced in their preliminary report was as follows: Page 2, Item D -14, Washington State Department of Transportation: Response dated March 7, 1979 stating "no comment ". FRE C y ATTACHMENT B Page 2, Item D -8, City of Tukwila Planning Department: Response dated March 8, 1979. Page 1, Item D -1, King County Division of Traffic and Planning: Response dated March 13, 1979 stating "no comment ". Page 1, Item D -7, King County Division of Planning: Response dated March 14, 1979. Letter dated March 10, 1979 from Mrs. Donald Nicholson stating opposi- tion. Letter dated March 17, 1979 from G. S. Delihunt stating opposition. Letter dated March 19, 1979 from Mrs. Douglas Perrine stating opposition. Letter dated March 20, 1979 from Mr. and Mrs. Richard B. Barnhard stating opposition. The Examiner made comments for the benefit of the participants. All parties wishing to testify were affirmed by the Examiner. Speaking in support was: EDWIN J. BECKER, applicant 12677 East Marginal. Way South Seattle, Washington 98168 The Examiner directed questions to Mr. Becker. Mr. Marbett, Building and Land Development, made comments at this time. Mr. Becker continued with his presentation.' Mr. Becker offered the following exhibit: Exhibit No. 7: Set of building plans proposed for subject property. Discussion took place among Mr. Becker, the Examiner and Mr. Marbett. Also speaking in support were: PHILLIP HEMENWAY 4036 South 128th Seattle, Washington 98168 RAY CATRON 3717 South 128th Seattle, Washington 98168 Speaking in opposition was: SHARON BERNHARDT 3418 South 126th Seattle, Washington 98168 228 -79 -R Page 2 Ms. Bernhardt offered the following exhibits: Exhibit No. 8: Set of five photographs. Exhibit No. 9: Set of 24 letters of opposition from residents of subject property. Ms. Bernhardt continued with her presentation. Also speaking in opposition were: BEVERLY NICHOLSON 3810 South 130th Seattle, Washington 98168 Mr. BRIAN KENNEDY 12802 - 37th Avenue South Seattle, Washington 98168 SHARON:MANN 3404 South 126th Seattle, Washington 98168 RUTH BERNHARDT 12527 —35th Avenue South Seattle, Washington 98168 All proponents and opponents having given their presentations, the participants responded with cross - examination and rebuttal. A continuance date was discussed by the participants. Cross - examination and rebuttal continued. At 4:20 P.M., March 22, 1979 this matter was continued by the Deputy Examiner to 9:00 A.M., May 8, 1979 in Room 854 of the King County Administration Buidling. The hearing on Item 228 -79 -R was reopened by the Deputy Examiner at 9:15 A.M. May 8, 1979. Ms. Powers, Building and Land Development, offered the following exhibits: Addendum Building and Land Development report dated May 8, 1979. Site plan submitted April 9, 1979 by the applicant. Mr. Marbett, Building and Land Development, summarized the background of this application. • Speaking in support was: Exhibit No. 10: Exhibit No. 11: EDWIN J. BECKER, applicant 12677 East Marginal Way South Seattle, Washington 98168 Mr. Marbett and Mr. Becker held discussion at this time. Becker continued. 228 -79 -R Page 3 Speaking in opposition were: SHARON BERNHARDT RUTH BERNHARDT Mr. Marbett and the Examiner addressed questions to Mrs. Ruth Bernhardt. All proponents and opponents having given their presentations, the participants responded with . cross :.and_rebuttal. Discussion continued among the participants. Mr. Marbett modified the addendum Building and Land Development report dated May 8, 1979 (Exhibit No. 10) as follows: Pre - ordinance. Condition on Page 3 to read as follows: "The applicant shall fulfill the necessary requirements to receive site plan approval on the property to the south (File No. 261 -78 -R) or submit a cash bond of $5000 with the stipulation that the post ordinance condition be satisfied within six months of Council approval of File No. 228- 79 -R." Mr. Marbett stated that his final recommendation was to approve as stated in their addendum preliminary report dated May 8, 1979 with the following additional conditions and the modifications stated above: FINDINGS: Condition No. 5: "The truck fleet shall be limited toa combination of 96 vehicles that would include vans or trucks, tractors and trailers." Condition No. 6: 228 -79 -R Page 4 "Repair of any vehicles on the premises not to be after 10:00 P.M. or to be contained within an entirely enclosed building." The hearing on Item 228 -79 -R was closed by the Deputy Examiner at 10:25 A.M., May 8, 1979. FINDINGS, CONCLUSIONS AND RECOMMENDATION: Having reviewed the record in this matter, the Examiner now makes and enters the following: 1. General Information: Location: Lying on the northwest corner of East Marginal Way South & South 128th Street. Existing Zone: ML (PUD) Requested Zone: ML -P STR: W10 -23 -4 Size: 2.1 acres Water District: #125 Sewer District: Val Vue Fire District: #18 School District: South Central 2. Approval of this application will constitute a "major action" under the provisions of R.C.W. 43.21C and W.A.C. 197 -10. The applicant submitted an environmental checklist with the application. After reviewing the environmental checklist, the Manager of the Building and Land Development Division made a threshold determination that approval of this application will not have a significant adverse impact upon the quality of the environment and that an environmental impact statement is not required. The Building and Land Development Division transmitted a proposed declaration of non - significance to other agencies with jurisdiction on February 21, 1979. After the elapse of fifteen days following the transmittal and after reviewing comments submitted by agencies with . jurisdiction and by other parties, the Manager of the Building and Land Development Division adopted the proposed declaration as a final declaration of non- significance. At the public hearing on this application a representative of the Building and Land Development Division reported that having considered the comments and testimony by agencies with jurisdiction and by other parties, having visited the subject property, and having evaluated the natural, physical and social systems related to this application, the Building and Land Development Division reaffirms its determination that approval of this application will not have a significant adverse impact on the quality of the environment and an environmental impact statement is not required. 3. The subject property was zoned ML subject to.a planned unit development (File No. 200 -74 -R) in 1974. Final planned unit development approval was given in 1975 (File No. 249 -74 -P) and later revised in 1977. This request would change the zone classification of the subject property from ML (PUD) to ML -P in order to expand a building beyond the limitations placed on the subject property through the Planned Unit Development procedure. 228 -79 -R Page 5 4. The Highline Community Plan, adopted by the King County Council in December 1977 shows the subject property as "industry" and prescribes specific landscaping standards for industrial property. 5. The property to the south (File No. 261 -78 -R /Ray Catron) was approved to CG -P subject to site plan approval. The applicant is currently using this property for employee parking but has not yet received site plan approval. 6. The public hearing on this matter had been continued in order to allow time for the applicant to prepare a site plan and for the Traffic Division to complete a traffic study relating to the capacity of East Marginal Way in the vicinity of the site. 7. The site plan submitted by the applicant shows the proposed building expansion (40'x69.6') and parking. for 34 vans and 31 semi- trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition to the building. 8. The Traffic Division concluded that: "...the subject route is capable of handling the existing traffic and any future traffic volumes using this arterial. We recommend against any restriction to use of this route going south from the light industrial area. A restriction of this type could cause undue congestion at the intersection of East Marginal Way and Interurban Avenue South." 9. Representatives of the Riverton community attended the hearings and requested that the County place conditions on the site plan and operation of the facility that will protect existing residential areas and provide a workable boundary between residences and industrial expansion in the area. 10. The Building and Land Development Division proposed specific limita- tions on the number of vehicles to be utilized at the site and the hours of outdoor maintenance and repair work. The applicant advised that his present business operation depends on all - night truck maintenance work on the site. The additional facility is designed to support off - loading and transfer of goods from long -haul to short -haul vehicles. CONCLUSIONS: 1. Based upon the whole record, and according substantial weight to the determination of environmental significance made by the Division of Building and Land Development, it is concluded that approval of the subject action as recommended below, would not constitute a major action significantly affecting the quality of the environment. All evidence of environmental impact relating to the proposed action and reasonable alternatives to the proposed action have been included in the review and consideration of the subject action. 2. Industrial use of the property is supported by the Highline Community Plan, which also provides for adequate screening and landscaping. 3. The location of the property at the boundary of industrial and residential areas requires conditions of approval which go beyond typical industrial property requirements. RECOMMENDATION: l d0A Approve ML -P in lieu of ML subject to the following conditions: vp Pre - ordinance condition: O \ The applicant shall fulfill the necessary requirements to receive � site plan approval on the property to the south (File No. 261 - 78 - R) or shall submit a cash bond of $5000 to insure that post - ordinance Post - ordinance conditions: ORDERED THIS 18th day of May, 1979. Edwin J. Becker Phillip Hemenway Ray Catron Sharon Bernardt Beverly Nicholson Brian Kennedy Sharon Mann Ruth Bernhardt Luci Reimann James L. Stretch Brudette & Coleen Anderson Shirley M. Robinson Bernice Ross Rhoada E. Cook Mrs. Harriet Norman conditions of File No. 261 -78 -R are satisfied within six (6) months of the approval of this case (File No. 228- 79 -R). 1. The applicant shall supplement the existing landscaping to meet the requirements of the Highline Plan. a. Type II landscaping along the south property line as far west as the proposed entrance. b. Type III landsacping for the remainder of the south property line and the north and west property lines. c. Planting along the east is sufficient but shall not be decreased. 2. Expansion of the building shall be limited to the proposed expansion (40'X69.6'). 3. No additional building(s) shall be allowed on the site. 4. A cash bond may be required at the time of the building permit for insurance of landscaping. 5. The truck fleet on the site to be limited to a combination of 96 units - a unit being defined as a van, a tractor or a trailer (a combination tractor and trailer equals two units). 6. The noise levels emanating from maintenance and repair of vehicles between the hours of 10:00 P.M. and 7 :00 A.M. shall be limited as set forth in Section 12.88 of the King County Code. A violation of the provisions of that section shall be considered a violation of the conditions of approval of this application. Exemptions allowed by Section 12.94 for industrial districts shall not apply to the subject property while operating under the conditions of this reclassification approval. 228 -79 -R Page 6 Robert A. Eveleigh DEPUTY ZONING & SUBDIVISION EXAMINER TRANSMITTED this 18th day of May, 1979 by certified mail to the parties of record: Lillian Woolbert Louveln L. Lautenschlager Mr. & Mrs. Laurel L. Land and Mr. Steven M. Lang Mae E. Sharp Curtis W. Robinson Edward Lucero Mr. & Mrs. John B. Stetson III Mr. & Mrs. Richard Barnhart Mrs. Mary Siccardi John A. and Linda Kurtti E. J. and Deborah Ness John J. Romero Mrs. Marie Francis Ruth M. Breed G: - . S..•Delahunt Mrs. Douglas Perrine Donna Meagher TRANSMITTED this 18th day of May, 1979 to the following: King County Building and Land Development Division King County Department of Public Works King County Department of Health Washington. State Highway Department, District No. 1 City of Tukwila, Edgar D. Bauch and Fred Satterstrom King County Water District No. 125 King County Division of Planning, Karen Rahm 228 -79 -R Page 7 Pursuant to Chapter 20.24.170 and 20.24.190 of the King County Code, request for reconsideration or notice of appeal must be filed in writing on or before June 1, 1979. "If a notice of appeal is filed on or before June 1, 1979, the appellant will have until June 8, 1979 to file written appeal arguments. The original and 15 copies of said written appeal arguments shall be filed with the Clerk of the King County Council. Pursuant to Chapter 20.24.210 of the King County Code: "Action of the Council Final. The action of the Council approving or rejecting a decision of the Examiner shall be final and conclusive unless within twenty (20) days from the date of the action an aggrieved party or person obtains a writ of certiorari from the Superior Court in and for the County of King, State of Washington, for the purpose of review of the action taken." :G P 4* tff Applicant: EDWIN J. BECKER -Zone Change: M -L (PUD) to M -L -P STR: W 10 -23 -4 // r 1 - MS Tw Proposed Reclassification 0 S -R S S -R S -R ts. S-a RS 7200 S -R W Q W /� _N `M -H S -.R S -R S -R S -R E -N S -R IA w x 1- y 9� S -R 1M -H 124t -_ S -R 1M -lf' S -R M -H • ' M -H •17- TO S-R 126tth S -R S -R S -R S-R V/ rn 411:1i• N M-H S -R S.R M -L -P S -R C- Z_ W r o M-L TN 130 TN RM -900 L sT. 8 -N S 14 d O COI ISM -900 MILIMMEMWMUA S -R S -R S -R S -R S -R t0 S-R - 4•kLSiIMMIWWr - i — 9L F S-R 133 S -R so 5T• 3 S -R W a S -R W S -R S -R S. I33R° cc ST ST. M -P :s0 - n UNCLASSIFIED • USE PERMIT Ho -7. FILE 228 - 79 - R S -R APPENDIX B 0' S-R 400' Ni S- R a) S. 122n0 ST 4• S. 124 th ST. S -R S S -R 6 -4 -79 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 28 29 30 31 32 33 BE IT MOVED by the Council of King.County: This Motion does hereby adopt and incorporate herein as its own findings and conclusions the findings and conclusions contained in the report of the Zoning and Subdivision Examiner dated MOTION NO. A MOTION concurring with the recommendation of the Zoning and Subdivision Examiner to approve ML -P in lieu of M -L subject to conditions the application for reclassification petitioned by EDWIN J. BECKER and designated File No. 228 -79 -R May ]8 Clerk of the Council on June 4 the application for reclassification petitioned by EDWIN J. BECKER 228 -79 -R TTEST: EPUIY Clerk of the Council Introduced by: Councilman Grant 4�s� j. , 19 79 which was filed with the to approve ML -P in lieu of M -L subject to conditions designated by the Building and Land Development Division, epartment of Planning and Community Development File No. and the Council does concur with the ecommendations contained in said report. PASSED at a regular meeting of the King County Council his day of ( " 7 ; � � 19 KING COUNTY COUNCIL KING COUNTY, WASHINGTON airman ATTACHMENT C , 19 _79 • BRIAN KENNEDY 12802 - 37th Avenue South Seattle, Washington 98168 SHARON MANN 3404 South 126th Seattle, Washington 98168 RUTH BERNHARDT 12527 - 35th Avenue South Seattle, Washington 98168 All proponents and opponents having given their presentations, the participants responded with cross - examination and rebuttal. A continuance date was discussed by the participants. Cross - examination and rebuttal continued. At 4:20 P.M., March 22, 1979 this matter was continued by the Deputy Examiner to 9:00 A.M., May 8, 1979 in Room 854 of the King County Administration Buidling. * * * * * * * * * * * 228 -79 -R • Page 3 The hearing on Item 228 -79 -R was reopened by the Deputy Examiner at 9:15 A.M. May 8, 1979. Ms. Powers, Building and Land Development, offered the following exhibits: Exhibit No. 10: Addendum Building and Land Development report dated May,8, 1979. Exhibit No. 11: Site plan submitted April 9, 1979 by the applicant. Mr. Marbett, Building and Land Development, summarized the background of this application. • Speaking in support was: EDWIN J. BECKER, applicant 12677 East Marginal Way South Seattle, Washington 98168 Mr. Marbett and Mr. Becker held discussion at this time. Mr. Becker continued. Speaking in opposition were: SHARON BERNHARDT RUTH BERNHARDT Mr. Marbett and the Examiner addressed questions to Mrs. Ruth Bernhardt. All proponents and opponents having given their presentations, the participants responded with cross - examination and rebuttal. Discussion continued among the participants. X Mr. Marbett modified the addendum Building and Land Development report dated May 8, 1979 (Exhibit No. 10) as follows: Pre - ordinance Condition on Page 3 to read as follows: "The applicant shall fulfill the necessary requirements to receive site plan approval on the property to the south (File No. 261 -78 -R) or submit a cash bond of $5000 with the stipulation that the post ordinance condition be satisfied within six months of Council approval of File No. 228- 79 -R." Mr. Marbett stated that his final recommendation was to approve as stated in their addendum preliminary report dated May 8, 1979 with the following additional conditions and the modifications stated above: FINDINGS: Condition No. 5: "The truck fleet shall be limited. to a combination of 96 vehicles that would include vans or trucks, tractors and trailers." Condition No. 6: "Repair of any vehicles on the premises not to be after 10:00 P.M. or to be contained within an entirely enclosed building." The hearing on Item 228 -79 -R was closed by the Deputy Examiner at 10:25 A.M., May 8, 1979. FINDINGS, CONCLUSIONS AND RECOMMENDATION: Having reviewed the record in this matter, the Examiner now makes and enters the following: 1. General Information: Location: Existing Zone: Requested Zone: STR: Size: Water District: Sewer District: Fire District: School District: 2. Approval of this application will constitute a "major action" under the provisions of R.C.W. 43.21C and W.A.C. 197 -10. The applicant submitted an environmental checklist with the application. After reviewing the environmental checklist, the Manager of the Building and Land Development Division made a threshold determination that approval of this application will not have a significant adverse impact upon the quality of the environment and that an environmental impact statement is not required. The Building and Land Development Division transmitted a proposed declaration of non - significance to other agencies with jurisdiction on February 21, 1979. After the elapse of fifteen days following the transmittal and after reviewing comments submitted by agencies with jurisdiction and by other parties, the Manager of the Building and Land Development Division adopted the proposed declaration as a - final declaration of non - significance. At the public hearing on this application a representative of the Building and Land Development Division reported that having considered the comments and testimony by agencies with jurisdiction and by other parties, having visited the subject property, and having evaluated the natural, physical and social systems related to this application, the Building and Land Development Division reaffirms its determination that approval of this application will not have a significant adverse impact on the quality of the environment and an environmental impact statement is not required. 3. The subject property was zoned ML subject to a planned unit development (File No. 200 -74 -R) in 1974. Final planned unit development approval was given in 1975 (File No. 249 - 74 - P) and later revised in 1977. This request would change the zone classification of the subject property from ML (PUD) to ML - P in order to expand a building beyond the limitations placed on the subject property through the Planned Unit Development procedure. 228-79-R Page 4 Lying on the northwest corner of East Marginal Way South & South 128th Street. ML (PUD) ML -P W10 -23 -4 2.1 acres #125 Val Vue #18 South Central • 228 -79 -R Page 5 4. The Highline Community Plan, adopted by the King County Council in December 1977 shows the subject property as "industry" and prescribes specific landscaping standards for industrial property. 5. The property to the south (File No. 261 -78 -R /Ray Catron) was approved to CG -P subject to site plan approval. The applicant is currently using this property for employee parking but has not yet received site plan approval. 6. The public hearing on this matter had been continued in order to allow time for the applicant to prepare a site plan and for the Traffic Division to complete a traffic study relating to the capacity of East Marginal Way in the vicinity of the site. 7. The site plan submitted by the applicant shows the proposed building expansion (40')C69.6') and parking for 34 vans and 31 semi- trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition to the building. 8. The Traffic Division concluded that: "...the subject route is capable of handling the existing traffic and any future traffic volumes using this arterial. We recommend against any restriction to use of this route going south from the light industrial area. A restriction of this type could cause undue congestion at the intersection of East Marginal Way and Interurban Avenue South." 9. Representatives of the Riverton community attended the hearings and requested that the County place conditions on the site plan and operation of the facility that will protect existing residential areas and provide a workable boundary between residences and industrial expansion in the area. 10. The Building and Land Development Division proposed specific limita- tions on the number of vehicles to be utilized at the site and the hours of outdoor maintenance and repair work. The applicant advised that his present business operation depends on all -night truck maintenance work on the site. The additional facility is designed to support off- loading and transfer of goods from long -haul to short -haul vehicles. )� CONCLUSIONS: 1. Based upon the whole record, and according substantial weight to the determination of environmental significance made by the Division of Building and Land Development, it is concluded that approval of the subject action as recommended below, would not constitute a major action significantly affecting the quality of the environment. All evidence of environmental impact relating to the proposed action and reasonable alternatives to the proposed action have been included in the review and consideration of the subject action. 2. Industrial use of the property is supported by the Highline Community Plan, which also provides for adequate screening and landscaping. 3. The location of the property at the boundary of industrial and residential areas requires conditions of approval which go beyond typical industrial property requirements. '$. RECOMMENDATION: Approve ML -P in lieu of ML subject to the following conditions: Pre - ordinance condition: The applicant shall fulfill the necessary requirements t� receive site plan approval on the property to the south (File No. 261 -78 -R) or shall submit a cash bond of $5000 to insure that post- ordinance 228 -79 -R Page 6 ( conditions of File No. 261 -78 -R are satisfied within six (6) months of the approval of this case (File No. 228- 79 -R). Post - ordinance conditions: 1. The applicant shall supplement the existing landscaping to meet the requirements of the Highline Plan. a. Type II landscaping along the south property line as far west as the proposed entrance. b. Type III landsacping for the remainder of the south property line and the north and west property lines. c. Planting along the east is sufficient but shall not be decreased. 2. Expansion of the building shall be limited to the proposed expansion (40'X69.6'). 3. No additional building(s) shall be allowed on the site. 4. A cash bond may be required at the time of the building permit for insurance of landscaping. 5. The truck fleet on the site to be limited to a combination of 96 units - a unit being defined as a van, a tractor or a trailer (a combination tractor and trailer equals two units). 6. The noise levels emanating from maintenance and repair of vehicles between the hours of 10:00 P.M. and 7 :00 A.M. shall be limited as set forth in Section 12.88 of the King County Code. A violation of the provisions of that section shall be considered a violation of the conditions of approval of this application. Exemptions allowed by Section 12.94 for industrial districts shall not apply to the subject property while operating under the conditions of this reclassification approval. ORDERED THIS 18th day of May, 1979. TRANSMITTED this 18th day of May, 1979 by certified mail to the parties of record: Edwin J. Becker Phillip Hemenway Ray Catron Sharon Bernardt Beverly Nicholson Brian Kennedy Sharon Mann Ruth Bernhardt Luci Reimann James L. Stretch Brudette & Coleen Anderson Shirley M. Robinson Bernice Ross Rhoada E. Cook Mrs. Harriet Norman Robert A. Eveleigh DEPUTY ZONING & SUBDIVISION EXAMINER - Zoning 'and Subdision Examiner Building and Land Development Division King County Courthouse Seattle, Washington Dear Sir: Re: Applicant Edwin J. Becker, File 228 -79 -R It is our understanding that this request is being made because Mr. Becker wishes to build additional warehouse space at his present location. Mr. Becker testified at a hearin g on that he was at that time seeking additional parking because his present parking area was fully occupied. If additional warehouse space is allowed, it will be necessary for Mr. Becker to find some place to park some of his trucks. There is no place in the immediate area for him to do so. parked on the street at any time. We do not want his trucks hazardous as it is. In order to go anywhere t from e our t area, we must enter E. Marginal Way S. at So. 126th, So. 128th or So. 130th. Because there are so many large trucks parked at the northwest corner of So. 126th and E. Marginal Way S. much of the time, it is impossible to see if traffic is coming south along E. Marginal Way S. The situation at So. 128th is already because of the curve in E. Marginal Way height ofztthhdous berm containing Mr. Becker's planting stri a the s ato allowed to e extensive filling at the site when he moved� e hisbusinessherein 1974. There are community businesses at So. parkin; on the street and therefore that intersection also hazard in that it is difficult to see if traffic i E. Marginal Way S. when you enter the intersections coming along Mr. Becker stated at a hearing on February 22, 1979, BALD files 279 -78 -U and 276 -?7 -R, that the residents in the area did not need to use E. Marginal Way S.- -that we could use back streets. E The only way to the freeway is on E. Marginal Wa S. E Marg. Pacific Highway South provide the only way y and et y in or out o,. the arreaea Way S. . We objected to Mr. Becker's request to rezone this site to ML in 1974. Now he claims his business has experienced considerable growth (testimony in BALD file 261- 78 -R). There is no room for his business to grow at this location. tried and the County that this was not a proper e location o for lsuch . aL 'ecker business in 19 74. Mr. Becker was extremely short - sighted not to realize that there would be no room for growth here. We request that you deny any request by hr. Becker to expand his building at this site. Exhibit No Ito. Ito. Reoeived King County Son i S Subdivision Examiner et larch 20, 19 79 a,,,„,A„ Mr. & Mrs. H. H. Bernhardt 12527 - 35th Avenue South Seattle, Wa. 98168 ' ATTACHMENT D f t d N 4 .rs L,.• 5-r ee Zg2 3 r So A .vc �� IN`s. EcKE• S IeE Q uesti' g ', - T 6 C PeNGC FA o P\L (q0) - ML- P 2 SASo to S •. µ is C lm% e A J s l� .p, .EStpetu r kt. p `� 1 E 1G4t Oot tWoo Aa'Jo A1J•� c Lt tted_ EX PANS cre&L, o►� rh Al«S tT wk.eR.E bAtVG ,o •Pcti L TKO Ct}tt..o4LE I'3 - rtke (Sit , Z) µ t s Lori tS I t w / g liaCUACS i So 1C - CXPANOS - r �F . w AR a 1t64.43' v- 4101LE i e-E "-RE " ,"(zuckcs tBoc Nrc- PAt 3) 4 I S 1 V R.E14n rvtA IcG"S 'V vku c,� ho 1S E -� e x PAN0 w4.o o�t*� *tI t tG-E t'1•` t�K pc? � G t-t w DR-IS E. q, `C elte" 15 Ot.L etk et v) Tb Air GZ - ONE eo vo$ TttE R 2 )4044/14e6( March 20, 1979 To: King County Zoning & Subdivision Examiner Re: Edwin J. Becker, File No. 228 -79 -R What is the use of a P. U. D. zoning if it can just be changed a very few years later There has been too much industrial intrusion into our residential neighborhood already. I certainly don't condone any more zone upgrading (in my opinion, downgrading). The Becker trucks are a real hazard to our neighborhood. Becker has tried to have the property across 128th Street rezoned so he could park his excess trucks there. Obviously, he needs more room for his trucks and there's not going to be more room for trucks if the building is expanded. Where is he going to put the trucks he already needs more room for? If this rezone is granted, does it mean that we'll soon be facing another rezone request on the property now being used for Becker's employee parking: Or, will there be large trucks parked in the streets surrounding Becker ? In my opinion, there is no more room for Becker to expand his business in our residential neighborhood. I see that as his problem, not ours. I'm glad to see that the environmental assessment tells what the present land use is like (F.6). I couldn't agree with the statement more. The surrounding streets are not wide enough to allow Becker's trucks to enter or leave his yard without taking up both lanes. This can be very hazardous, especially during rush hours. Seems like the already existing problems should be remedied before Becker is allowed to add more problems to the area. Expanding his building is just going to cause more trouble in our residential neighborhood. Thank you for reading this. ‘ze-erzege-y= e Ica° C , 4a Burdette-E. and Coleen D. Anderson 12630 34th Ave. S. Seattle, Washington 98168 Building & land Development Division 450 King County Administration Bldg. Seattle, Washington 98104 File f 228 -79 -R Dear Sir: 13422 40th Avenue South Seattle, Washington 98168 March 20, 1979 Mr. Becker's request to change the zone classification on his property from MI (PUD) to MI - P in order to expand his warehouse facilities should be denied. Mr. Becker's business has always been a nuisance in our residen- tial community and is increasing to hazzardous proportions. The number of trucks operating in and out of the premises is alarming. They constitute a menace to our children, pets, and neighborhood traffic. large trucks often block visibility at the intersections of 128th St. and E. Marginal Way and 126th St. and. 2. Marginal day. These trucks may be there night and /or day. With more off - street parking used for warehouse purposes, it seems likely that more trucks will be parked on the two -lane street. Material contained in File Number 261 -78 -R is pertinent to the shortage of truck parking space on the property presently used for warehousing and parking of trucks. Since the amount of property for these purposes has not been increased, it is puzzling that Mr. Becker should suddenly find room for a larger building. It is hoped that hours of operation of the business will not be extended as loading . and unloading of trucks already continues into the late night hours- -not a compatible situation in a residential com- munity. Another hazzard of tremendous concern is the nature of cargoes carried by Mr. Becker's trucks. The chemical spill that closed Tyee High School for half a day last year was from one of Mr. Becker's trucks. We never know what chemicals or inflammable materials may be carried through our community or stored on his property. The impassable condition of S. 128th Street between E. Marginal Way S. and 37th ;n.ve. S. because of flooding during heavy rains is another concern directly tied to Mr. Becker's haphazzard planning. Finally, no amount of screening can successfully hide the presence of a thriving trucking business in a residential community. Cbvioucly, no one can force Mr. Becker to move, but he chose to accept the restric- tions in the first place. If his choice turned out to be a bad one, it is Iu:r. Becker, not the many residents of this community, who must accept the penalties. Sincerely yours, t...ity4. a vwin *e /3t,c4eA J— J 0 -- „Z,4 ,-acZee,A,e.kj e) 97i A 1, f7 a2 / A-4 dui) ( dia: - Oka7ti 444),N 614/11Zie/t tal-t7 (OW Aen &A 41te se, iari a1 -./zek /-7,(71)allea-4- of dazd+i)4,,fe,? p1 ,7; /f7 Mr. & Mrs. John B. Stetson 111 13258 40th Avenue South Seattle, WA 98168 (206) 243 -7504 March 21, 1979 Building and Land Development Room 450 King County Administration Building Seattle, WA 98104 Ref: Mr. Edwin J. Becker File # 228 -79 -R Dear Sir /Madam, We wish to protest the expansion request of Mr. Becker, as we feel it would cause unnecessary disruption of this primarily residential neighborhood, due to heavy truck and equipment traffic, noise pollution, etc. Sincerely, Kathryn A. Stetson John B. Stetson 111 Sincerely, King County Council Clerk 402 King County Courthouse Seattle, Washington 98104 Subject: 228 -79 -R Dear Sir: We are opposed to the rezoning request of Edwin J. Becker. This is a residential area. This rezoning will allow further intrusion of business and industry into our residential area. It will further isolate our small community. If Mr. Becker expands his building to enclose what is stored . outside now, what change will that make in his truck parking area? If he is talking about less place to park his trucks, where does he plan to park them? We do not want any expan- sion of M -L zoning into our residential area. We do not want his trucks parked on the street. for March 20, 1979 We have children who walk along East Marginal Way South and South 128th to catch the school bus, to visit their friends' homes, and to run errands. We are concerned with their safety if there is any further expansion in this trucking business. 7itt //,: Mr. & Mrs, Richard B. Barnhart 3704 South 126th Seattle, Washington 98168 DEPARTMENT OF PLANNING & COMMUNITY DEVELOPMENT BUILDING AND LAND DEVELOPMENT DIVISION ENVIRONMENTAL ASSESSMENT AND PRELIMINARY REPORT TO THE ZONING & SUBDIVISION EXAMINER March 22, 1979 - PUBLIC HEARING APPLICANT: Edwin J. Becker FILE: 228 -79 -R ENVIRONMENTAL ASSESSMENT A. SUMMARY OF PROPOSED ACTION: This is a request to change the zone classification of the subject property from ML (PUD) to ML -P in order to expand a building beyond the limitations placed on the subject property through the Planned Unit Development procedure. B. GENERAL INFORMATION: Owner /Agent: Location: Existing Zone: Requested Zone: STR: Size: Water District: Sewer District: Fire District: School District: C. HISTORY /BACKGROUND: D. AGENCIES CONTACTED: ATTACHMENT E Edwin J. Becker 12677 E. Marginal Way South Seattle, Washington 98168 Phone: 246 -9500 Lying on the northwest corner of East Marginal Way South and South 128th Street. ML (PUD) ML -P W 10 -23 -4 Exhibit No 1.91 acres #125 Val Vue Received #18 South Central Item No. FILE C King County ZoniT & Subdiv aion Examiner at C7 7 am pm 1. Pursuant to the State Environmental Policy Act of 1971 (SEPA) Chapter 43 -21c and W.A.C. 197 -10 -300, and upon review of the applicant's environmental checklist, the Manager of the Building and Land Development Division prepared a proposed declaration of non- significance on February 21, 1979, stating that the proposed development would not constitute a major action significantly affecting the quality of the environment. Therefore, an environmental impact statement was not required prior to the scheduled public hearing. 2. The subject property was zoned ML subject to a Planned Unit Development (File 200 -74 -R) in 1974. Final PUD approval was given in 1975 (File 249 -74 -P) and later revised in 1977. 3. Prior to that time the zoning on the subject property was R7.2 (Residential Single Family District). 1. King County Division of Traffic & Planning: No response. 2. King County Division of Hydraulics: No response. 3. King County Division of Operations: No response. 4. King County Division of Health: No response. 5. King County Division of Parks: No response. 6. King County Water District #125: "We dispute B 16, Item C, (on the applicant's Environ- mental Checklist.) on page six (6). Answer should be yes due to the fact there is only a 4" ,main which is for residential use only." 7. King County Division of Planning: Comments by the Division are included in this report. r Y EP - FILE 228 -79 -R 8. Tukwila Planning Department: No response. 9. Val Vue Sewer District: No response. 10. South Central School District: No response. 11. Washington State Department of Fisheries: No response. 12. Washington State Department of Game: No response. 13. Washington State Department of Ecology: No response. 14. Washington State Department of Transportation: No response. E. PURPOSE OF ML ZONE CLASSIFICATION AND PRINCIPLE USES PERMITTED: 1. 21.32.010 Purpose: The purpose of the ML zone classification is to provide for the location grouping of industrial activities and disting- uished from major fabrication. A further purpose is to apply zoning protection to the industries so located, by prohibiting the intrusion of residential and institutional uses. 2. 21.32.020 Principle Uses: Service stations, boat building and repairing, hotels - motels, machine shops, fuel storage, warehousing. F. PHYSICAL LAND CHARACTERISTICS: 1. Topography: The subject property is basically level. 2. Soils: AgC, Alderwood gravelly sandy loam, 6 -15% slopes. Permeability is mildly rapid in the surface layer and subsoil and .very slow in the substratum. Water moves on top of the substratum in winter. Available water capacity is low. Runoff is slow to medium and the hazard of erosion is moderate. 3. Vegetation: The vegetation on the subject property meets the requirements set down under the Planned Unit Development (249 74 - P). 4. Wildlife: None. 5. Water: There is a small stream near the western edge of the subject property. 6. Land Use: The subject property is developed with a truck storage area, warehousing building and office. Mr. Becker has allowed truck storage spaces on the north and east sides of his property to be used for outdoor storage, resulting in an unsightly condition when viewed from the street. Also, the fence line has been moved a few feet further south, on the south soide of his property. Much of his parking area is in dirt, resulting in a muddy condition during theh heavy rains, thus, tracing mud onto County roads. G. ACCESS: Access to the subject property can be obtained from either East Marginal Way South which is designated as a collector arterial or from South 128th Street, a local access street. The applicant uses both roadways for access to the present operation. H. NEIGHBORHOOD CHARACTERISTICS: 1. Zoning: The properties to the west and east are zoned SR (Suburban Residential). The property to the north is zoned CG and SR ( CG), and the land to the south is zoned CG -P (File #261- 78 -R). 2. Land Use: The property to the north is developed with a commer- cial business. The properties to the west, northwest and southwest are developed with single family residences. The land to the south has been rezoned to allow for employee parking for the facility on the subject property. I. PUBLIC SERVICES: 1. Water & Sewer: The subject property is located within a local service area (LSA) designated by the Sewerage General Plan and adopted as a supplement to the King County Comprehensive Plan by Ordinance #4035; therefore sewer service is permissible. The site is located within a sewer district that has an approved Comprehensive Plan adopted by the King County Council. Water District #125 does not have an approved Comprehensive Plan. Correspondence from the water district indicates that only enough water for residential properties is available to the subject property. 2. Fire Protection: The Washington Surveying and Rating Bureau designates this area as a Class 7 Fire Protection rating on a scale of 1 to 10 with 1 being high and 10 low. Any development of the site will require that King County Ordinance #3087 (Fire Hydrants and Water Pressure Standards) be met. The applicant will be required to submit a letter from the King County Fire Marshall stating that sufficient water is available to meet the above standards. 3. Transit: Metro Transit Route #130 provides service to the area along East Marginal Way adjacent to the subject property. 4. Schools: The subject property is located in the South Central School District #406. 5. Capital Improvements: There are no capital improvements in the area that will affect the subject property. J. APPLICABLE COMPREHENSIVE PLAN PRINCIPLES AND POLICIES: 1. Policy C -3: "In order that residential areas may industrial traffic, industrial areas located with access provided only to portation routes which include major routes, expressways, freeways, major and navigable bodies of water." 2. Policy C -5: FILE 228 -79 -R be free from shall be major trans- arterial truck railroad lines, COMMENT: The subject property abuts East Marginal Way South, a secondary arterial. Traffic generated as a result of this request would utilize South 128th Street, which is a residential street. The .subject property is located at a five -way intersection, which increases the possibility of congestion and hazards normally associated with truck traffic found in an ML zone. However, this application represents an existing use and it is not known how much additional traffic would be generated when the existing building is enlarged. "Planned use types of other industrial or industry related uses should be discouraged from industrial areas, with the exception of such convenience uses as banks, posts offices, and restaurants." 3. Policy C - 6: "Certain industrial uses generate heavy traffic, noise, smoke and other nuisances and should be located where it is feasible to provide an adequate transition, such as light industrial areas, commercial areas, or open space, to adjoining land use types." COMMENT: At present no natural transition exists between the exist- ing residential uses to the west, and the industrial use on the subject property. 4. The Highline Community Plan, adopted by the King County Council in December 1977 shows the subject property as "industry" which reflects the current use of the subject property. -3- K. OTHER CONSIDERATIONS: 1. The applicant is requesting a change in zoning to ML -P in an effort to remove the restrictions of the Planned Unit Development. Under the current Planned Unit Development application the applicant is not allow to enlarge, modify or in any way change the subject property. 2. The adopted Highline Plan requires a 20', type III planting strip adjacent to "RS" or "S" zoning (page 35 Highline Plan). 3. The property to the south (File #261 -78 -R /Ray Catron) was approved to CG -P subject to site plan approval. Mr. Becker is currently using this property for employee parking but has not yet applied for site plan approval. 4. As a result of the Inco Express, Inc., hearing (File #418 -78 -R) to the north, the Division of Traffic and Planning is preparing a report on the effects of additional traffic on East Marginal Way South and whether traffic should be restricted from traveling south through the residential neighborhood. 5. Ordinance #3747, passed by the Council on June 13, 1978, states that where a conflict exists between the Comprehensive Plan and the High - line or Northshore Community Plan, the community plan shall govern. COMMENT: In this case no conflict exists. FILE 228 - 79 - R 6. The applicant hasrequested ML -P, which includes the "P" suffix or site plan approval. "21.46.170 Site plan approval - Purpose. The requirement for site plan approval is based upon a recognition that development on the designated property may require special conditions to protect the public interest, such as dedication of right -of -way, street improvements, screening between land uses, signing controls, height regulations, permitted uses, performance standards, or other requirements or limitations to assure its compatibility with adjacent land uses as well as the community." L. IMPACT ON NATURAL SYSTEMS: 1. Air and Noise: A minor increase in air and noise pollution may occur, primarily from increased movement of trucks on and off the site. 2. Water: No significant surface water or runoff problems should result if the applicant abides by the conditions of King County Ordinance #2281, as amended. 3. Vegetation and Wildlife: No significant vegetation or wildlife habitats will be affected by this development. M. IMPACT ON NATURAL SYSTEMS: Inasmuch as the subject property is currently developed with indus- trial uses, the environmental impact may be minimal. The applicant would be obliged to meet the requirements of all pertinent county ordinances at the time of application for a building permit for expansion. A. CONCLUSIONS: CONCLUSIONS AND RECOMMENDATION 1. Environmental Significance: Pursuant to the State Environmental Policy Act of 1971 and the SEPA Guidelines adopted December 12, 1975, the Manager of the Building and Land Development Division adopted the proposed declaration of non - significance as a final declaration after being circula- ted for 15 days and reviewed by all agencies of jurisdiction. Based upon the responses of the agencies of jurisdiction and all other reviewing agencies, a site inspection of the project, information submitted by the applicant, and an evaluation of the affected natural, physical and social systems as outlined in this report, the Manager of the Building and Land Development Division reconfirms this final determination and does not require an environmental impact statement. 2. The subject request complies with the Highline Communities Plan which shows the subject property as "industry ". This land use designation was placed on the property in recognition of the present use of the site. 3. The request meets the policies of the 1964 Comprehensive Plan regarding the location of industrial uses. Adequate fire flow to meet the requirements of Ordinance #3087 may be deficient but this requirement can be met through the "P" suffix procedure. 4. While the subject request meets the policies of the Highline Community Plan and the Comprehensive Plan and has merit, this Division is reluctant to recommend approval without seeing any site plans. When this request was first heard in 1970, the issue of utmost importance was the impact the development would have on surrounding residential uses and the traffic. This concern is still valid, as witnessed by the concerns raised by neighbors on the case to the south (File #261 -78 -R /Ray Catron). 5. Approval of the subject request should be made subject to con- ditions and without seeing a site plan showing what the applicant intends to do with the subject property, this Division is not in a position to formulate conditions. Also at issue is the traffic on East Marginal Way South and within a short time the Division of Traffic and Planning will have completed their study of this roadway. The outcome of this study may affect the subject property. 6. ML -P zoning should not be granted until it can be demonstrated that some of the unsightly conditions would be corrected and how the property would be fully utilized. B. RECOMMENDATION: EBS:59:ss 3/14/79 FILE 228 -79 -R Place the file on -call until the applicant can submit a site plan showing how the property wll be developed and how much additional traffic will be generated as a result of expansion. Another .public hearing would be scheduled when this information becomes available. TRANSMITTED to parties listed hereafter: j� S'f79 Edwin J. Becker, 12677 E. Marginal Way South, Seattle, WA 98168 * * * * * ** RS-7,200 1240 i M -H S -R. 126th. - RM -90 M-H 417 -70 ST. 200 -74 130 S. 124th ST. B-N t M - H ; • Applicant; EDWIN J. BECKER .Zone Change: M -L (PUD) to M -L -P STR: W 10 -23 -4 k / / //) r♦ ♦ ♦ ♦ RS 7200 M -H S -R as • Proposed Reclassification S -R S. MX T14 CT 133RD ST. uJ a z M 8 =m M -P 220 -74 UNCLASSIFIED •USE •PERMIT 260 -76 FILE 228 - 79 - R S -R APPENDIX B S- R 400' S- R S. 122nd S -R 11, W M S -R / ST. S -R S-F*Nj 26 27 28 29 30 31 32 33 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 reuruary 1, 1vuo 1NIKUDUCED BY UNIT GKA J Ls :,!_0:1.!, FM 910111121 ` t'» . • r% ORDINANCE NO. PROP0 0 ORDINANCE NO. 79 -240 AN ORDINANCE amending King County Title 21, as amended, by amending the Zoning Map, thereof reclassifying certain property thereon at the request of Edwin J. Becker, Building and Land Development Division File No. 228 -79 -R BE IT ORDAINED BY THE COUNCIL OF KING COUNTY: SECTION 1. Edwin J. Becker petitioned on January 23, 1979, the the property described in section 3 below be reclassified from M -L (PUD) to ML -P, and this application was assigned building and land development division file no. 228 -79 -R. SECTION 2 The report and recommendation of the building and land development division was transmitted to the zoning and subdivision examiner on March 15, 1979 and May 1, 1979, and hearing was held by the examiner on March 22, 1979 and May 8, 1979. The report of the examiner was filed with the clerk of the King County council on June 4, 1979, and the council approved the reclassification by Motion no. 4301 on June 11, 1979, subject to conditions which have now been satisfied. SECTION 3. The legal description of the property to be reclassified is attached as Appendix A, and is hereby made a part of this ordinance. The above described property is shown on the attached map, which is designated Appendix B, and is hereby made a part of this ordinance. SECTION 4. The King County council does hereby amend King County Council Title 21, as amended, by reclassifying that property described and shown in section 3, Appendices A and B above, to ML -P, and directs the area map W 10 -23 -4 be modified to so designate. SECTION 5. This reclassification is granted subject to conditions adopted in Motion no. 4301, and said conditions ATTACHMENT F 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 1 2 3 4 5 6 7 8 are incorporated herein as though fully set forth herein. INTRODUCED AND READ for the first time this 2 day 197'. 1/41k, day ATTEST: PASSED this �e \ t tie vOSN 9t.er.tic'ti` KING COUNTY COUNCIL KING COUNTY, WASHINGTON 1985. APPROVED this ZS d day of ,ele iae 1985. tive LEGAL DESCRIPTION: Lot 4 and Lots 18 through 25, inclusive, Block 9, Riverton Add., recorded in Volume 13 of plats, page 36, in King County, Washingtbn, EXCEPT COUNTY ROADS. F. No. 228 -79 -R APPENDIX A APPLICANT: EDWIN J. BECKER REQUEST: M -L (P.U.D.) to M -L -P STR: W 10 -23 -4 and W 15 -23 -4 Proposed Reclassification "SEE ATTACHED MAPS" PAGE 1 of 3 ILE 228 - 79 - R APPENDIX B 210' M -H-P . ' 417 -70 M-H-P 1 ..1.. 1 239 80 P. 1 co I L M -H M , - S -R M -L ) S -R (15,000) S -R (15,000) ST. S- R t M -H ST. S -R (15,000) M-P 220 -74 UNCLASSIFIED USE PERMIT 260 -76 SCALE: I 200 SEC. ■%2 10 -23 -4 FILE NO 228 -79 -R PAGE 2 ov 3 M-L-P tS� 9 S -R (15,000) S'R S -R 15,000) CC 0 0 S -R :15,000) N cc 0 cc RS -7,200 .S -R (15,000) I C, SCALE: 1 "= 200' (6.i SEC. W%2 15 -23- 4 FILE Ng 228 —T9 -R PAGE 3 of 3 130 S - R iC:4 C -G - P 261-78 B -N ST. • .•..... •-r- • --- • -... ...,._. MEM S -R (I5OOO) I s_ S -R (15,000) T�{ TUKW1 L A ORD. 1283 12-16-82 S 7.),c!VILA MAR 1 3 allP SEATTLE :(168 4p 1 44 4,,g-tive Number Gate Photographer! Approx. Scale of ?lint 441:41 G Wi-:WiER. AND ASSOCIATES PHOTOGkA AN) GIS SERVICES 12652 INTERURBAN AVE. S. SEATTLE, WA 98168 Negative Number / G� Date Photographed ` Approx. Scale of Print / Other Identification 1 COPYRIGHT 2000 RECEltr_7 OF 7 UK6 MAR 1 3 2000 `;' `3&'3 j.4,13. 4 . Negative Number Date Photographed Approx. Scale of Print Other Identification RECEIVEJ CITY Or i "t1'Vu1 MAR 1 3 2000 WALKER .AND ASSOCIATES PHOTOGRAMMETRIC AND GIS SERVICES 12652 INTERURBAN AVE. S. SEATTLE, WA 98168 uye ,23F3 COPYRIGHT 2000 Negative Number 0, WALKER AND ASSOCATF:S T Cr, 7 :• .N 601;TH SE.'.; 1.E, 9..;■63 • (2w) 24'4-2300 (COO) 9i0-099 • www.waikermap.com WALKER /%1-4i) PHOTOGkAMMETRIC AND GIS SERVICE, 12652 INTERURSAN AVE S. SEATTLE, WA 9S16S 7 1-6-9‘7 --( 7 Dee Fladogratlea 6s- 2- 3 ppvc.. Scr:is a other iiertiicre=. 3/ 7 ST Dote rho`ogrcpbed Approx. Stole d Other )dent +.ca2,or. ■ :.. J 1 - • 3 - 2.31.• J • ::,:.. r.:, 9... (G - - 616 • ATTACHMENT M @ WALKER AND ASSOCIATES THIS PHOTO CANNOT BE CO:! SCANNED OR :''"R DUCED IN ANY FORM ` ; ' J 1:'' WRITTEN PER' : : C. : Date Photographed._ Approx. Scale of Print Other Identificatior WALKER AND ASSOCIA` ES 12652 INTERURBAN AVENUE SOUTH SEATTLE, WA 98168 • (206) 244 -2300 (888) 970-0599 • www.walkermap.com WALKER AND ASSOCIAl tS PHOTOGRAMMETRIC AND GIS SERVICES 12652 INTERURBAN AVE. & SEATTLE, WA 98168 Negative Number `— ("I = l 5 /) The above photo is of the LDR portion of the property. Notice that there are no buildings, the area is gravel, and that semi truck trailers are parked in the area. Becker Trucking Facility East Marginal Way S Photo taken 5/13/03 by Kathy Stetson, Code Enforcement Officer ATTACHMENT N BEFORE THE HEARING EXAMINER FOR THE CITY OF TUKWILA BECKER FAMILY REVOCABLE LIVING TRUST, vs. CITY OF TUKWILA, a municipal corporation, ATTACHMENT 0 Plaintiff, Defendant. DECLARATION OF TROY WALLIN - 1 C: \DOCUME- I\BRANDO- 1\LOCALS -1 \Temp\PLD003- 3.DOCB /07/14/05 NO. L04 -026 DECLARATION OF TROY WALLIN I, Troy Wallin, declare and state: 1. I have lived at 12607 East Marginal Way South since 1999. 2. My property is located north of the Becker Trucking site. 3. Since I have lived north of the Becker Trucking site, the west portion of the site has been used to park semi - trucks and semi -truck trailers. This parking occurs 50% of the time. The other 50% of the time the area is vacant. Sometimes trucks are washed in this area as well. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM I I FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 DATED this /'day of July, 2005 at Tukwila, Washington. DECLARATION OF TROY WALLIN - 2 C: \DOCUME- I \B RANDO- I \LOCAL S -1 \Temp\PLD003 -3. DOCB /07/ 14/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 BEFORE THE HEARING EXAMINER FOR THE CITY OF TUKWILA BECKER FAMILY REVOCABLE LIVING TRUST, vs. CITY OF TUKWILA, a municipal corporation, ATTACHMENT P Plaintiff, Defendant. the foregoing is true and correct. ill DATED this I �'day of July, 2005 at Tukwila, W DECLARATION OF BRIE CAMPBELL - 1 C: \DOCUME— I \BRAND(} -1 \LOCALS -- I \Temp\PLD003- 2.DOCB /07/ 14/05 NO. L04 -026 DECLARATION OF BRIE CAMPBELL I, Brie Campbell, declare and state: 1. I have lived at 3827 South 126th Street since 2004. 2. My property is located adjacent to the Becker Trucking site. 3. Since I have lived adjacent to the Becker Trucking site, the west portion of the site has been used to park semi - trucks and semi -truck trailers. I declare under penalty of perjury under the laws of the state of Washington that amp KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 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 TUKWILA BECKER FAMILY REVOCABLE LIVING TRUST, vs. CITY OF TUKWILA, a municipal corporation, ATTACHMENT Q Plaintiff, Defendant. DECLARATION OF AARON HUNDTOFTE - 1 C: \DOCUME-1 \BRANDO -1 \LOCALS — I \Temp\PLD003— I .DOCK /07/ 14/05 NO. L04 -026 DECLARATION OF AARON HUNDTOFTE I, Aaron Hundtofte, declare and state: 1. I have lived at 3827 South 126th Street since 2004. 2. My property is located adjacent to the Becker Trucking site. 3. Since I have lived adjacent to the Becker Trucking site, the west portion of the site has been used to park semi - trucks and semi -truck trailers. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this (ti day of July, 2005 at Tukwila, Washington. KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 I I Business License: QRENEWAL O NEW Application Date: Business Name , G.t� IN ` -t��N i./4---/ �, ` 421 Corporate tZ. L'Z.I�ee_ 3 Sb Address, if different from local: .t" C.C..r nr C7 , L s. / �{ 3 S j IL-A wA 7gl4.9 - %`z/ �G. [� — `ZcJ Local Street G . Address (aa sure to coder o ova n) S i'72 -c>' 1 wl Local PO box & zip, if applicable iv Business Phone (Include area code) ? yC -�(.0 . -c 0 _ Corper 1e Phone: Local manager (Include name and home phone): 'F amine Indicate ownership Status: 0 Individual 0 Partnership p Cott Phcne ( No p ats d Birth List owners/partners/ officers: Title b your Dooptoodoor evlldtation/paddler? N O Yes business: Telephone solicitation? 51 No 0 Yes abased outside t lt? iii{ No fl Yes If "Yu", show/obalte addnaec In space below . 1 Operated from your Tukwflaa residence? o[ No L3 Yes X 'Tax- road bionnation on reverse side mid sign Any gurgling DI wras and/or gambling devices No 0 Yes cat devices on prey? No O Yes If `Yes; 8lzo d floor spat. used: a i I on premises? number of devices: O op d business , �[ ` /44 Description . ^r^ - ., - • 7. . - • . , • -.. ..., .: ... oratory* ---� / _ t f v C. e a r r c. f Gesura.1 tYe cS�-l- IP rotas ales be conductor!? f]Yes ISINo Mai employees at Tukwila location, Ir rdudirlg owners and managers: ci yy�� Full-limo: rert(mme: N slber d employees In each Wholesale: Lla fEmergency type of employmere Oldca: Retail: War.houeinp; Other: Contacts: Phase - you. use atom /discharge flammable, h azardoue, or b ohazardous materials? jia,No 0 Yes If 'Yes", elate type and quantity - Are you PRESEM!J.Y doing any c orucSos or remodeling? r4 MA os Inst Elation of cocnmercfal storage rad2? Installation of new &gnage or changes in existing slgca n VA,' 41 l t -1 es= noes tire alarm Appropriate bu fling penes M..,r. nrutrucdon MUST be obtained prior to or rack Ins1 Harlot. required Copies of the firml accompany this application. -4 !emits is MUST 11 Re„ ,-a Show 20o2 Coy ot Tukwila cosines, ATTACHMENT C, L -LI 2,-J R year, ist former name w your business use diftered than Ow /Mew Business. lhobtrldahplSpaCe? 0 Ye_ _ hided+ anoncn Installation provisions f■/4 reverse aids on reverse side If you at a now building owner or planning to sells building 12/16/02 12:58 FAX 206 )1833 CITY City of Tukwila 6200 Southcenter Boulevard 1Lkwlla, Washington 98188-2599 2064334800 TUKWILA Application for 2003 City Business License is 002/00., e.t F!LL'OtIT THIS FORM IN ITS ENTIRE f I■COMPUTE- %IPPLICATIONS. WILL NOT (3E. ACCEPiED This Is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31 WA State Sales Tax N or ( 103 D� .� Date: ` � 2. Received by by: � � UBI number 9 digits): I the information contained herein is correct Paid 0 Cash e NE? ' �� C n � gipscNo s v c c I understand any untrue tatement is cause / V �/ J \ �i . . of license. Signature / ; / K ier 1l BWIding: 0 Bullding/sign permit attached Police: Date issued: 1 2003 License No.: Planning Zoning designation: Are: Print Name: Tide/Oftica. LICENSE FEE (based an number of employees) CHECK ONE m+ w Please reiurneatmpleted appficatlon fee t Tukwila City Hall at address she above, Attentl n: City Clerk's Office \J t 0_ . c, - f 1,�5 2.. 5 t�o c Y ct u �5 � e - C - e 1 , , G. . , 10A ., : f (4 ? 2/18/2003 5:04 PM FROM: Fax Becker Trucking Inc. TO: 425-455-9138 PAGE: 002 OF 002 Steve Lancaster Director of Community Development City of Tukwila 6300 Southcenter Blvd. Suite 100 Tukwila, WA 98188 Dear Mr. Lancaster, Sincerel ;;; // Rolan Becker President COMMITTED TO EXCELLENCE ATTACHMENT 5 RECEIVED FEB 2 0 2003 COMMUNITY DEVELOPMENT The following information concerns Becker Trucking, and its use as a truck terminal located 12677 E. Marginal Way S. and the fenced, paved commercial parking lot located across the street at 3800 S. 128th St in Tukwila, WA. I am writing to verify that the Becker Trucking has used this property since April 2002 to park semi -truck and trailers. It has always been our intent to continue to use this property for the commercial parking of semi - tractors, trailers and employee vehicle parking. Date: Paid: Buildin •U4 /LO /U4 0 Building/sign permit attached Police: Date issued: 2004 License 10:10 t' AA LUO A " S 1044 City of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188 -2599 206.433 -1800 This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31E1 OFFICE USE ONLY :I I Cash o a. Check No.: [b�a � Received by: —� _ ° 3 . Lie E13T in a pr ovisions on reverse side Receipt No.: 0 j r Planning: c)FANIS0. Zoning designation: 64)1,t_c I% ATTACHMENT T V111 1UAIt1LA FILL OUT THIS FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED WA State Sates Tax # or UBi number (9 digits): -:=" 6 I certify the information contained herein is correct. 1 understand that any untrue statement Is cause for revocation of my license. Si , nature: Application for 2004 City Business License Print bi c∎i r /Min/ 7 Title /Offs ( /770 7 t(/J UUS/ UU4 LICENSE FEE (based on T • . $b number of employees) 6 to 100.. 10 . . CHECK ONE m► _ 101 and above $200.0 Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office Business License: 0 RENEWAL NEW j APPIicatjon 1 Date: f/— ,::: )Z, —& y / Business Name Ed rno And- s - rc„ µ L 1 Local Street Apt, , / E ¢ /T$✓5 it/ go Address . /� �j (Be sure to Include zip ✓ �" °� i Loci y� �+ code+ 4 -dlgtt extension) Local PO box & zip, if applicable Corporate Address, if different from local: �r c � Business Phone (incl. area coder ( c 9( o ) 4oJ _/D 5'7 Lora manager Corporate Phone: (include home phone): '' Er r T e 7710h,° / mid { 167 s t owners/partners/ Indicate ownership spills: ;. Individual i Pannershfp LLC _. ICorporation :_:Non -profit office a so Address dbb� .o r mG» nom n r /6s T A Cityistate2ip Phase Date of Birth _ tqt' r ,, 533/.82 k4. �`y/5 is your Door -to -door solicitation/peddler? _ o -i Yes business: Telephone solicitation? - No 5 Yes Contractor based outside City? _ No • . Yes !f Wes ", showlobsite address In space below Operated from your Tukwila resJdertos? o - Yes if "Yes ", read Information on reverse side and al n Description business Any gambling and/or gambling devices on premises? (No 7. Yes My am Sa ment devices on premises? No F; Yes If - Yes ", number of devices: of (give details also, list types of products sold or stored): Ll d es r19 Wilt retail sales be conducted? El Yes .N. Total Size of floor space used: /Z:50-6° sq. ft. Original opening date of business in Tukwila: /— /— 2 if / employees at Tukwila location, including owners and managers: Full - time: ( ../ ‘ _q Part -time: Do use/store/discharge Number of employees in each type of employment: Office: Retail: Wholesale: ' Man ufacturin 9 : .E� � � n Wa rehousinq;� Other. flammable, flamabie, hazardous, or biohazardous materials? o fl Yes If "Yes ", state type and quantity: Are PRESENTLY Local ,lrmer rlc cis: 1. S "+ I - c mein ) yL7 2 CYY1Cr+� �S3 6, �� " �(� you doing any: construction or remodeling? o :: ; Yes installation of corrvnercfal storage racks? �o Yes Installation nsl tio of new sl or c 9nage hanges In existing signage? No L I Yes If Yes ... Appropriate building permits M ST be obtained prior to start of construction or rack installation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. if Renewal*. Show 2003 Tukwila Business License # A N L If business name has changed in past year, list former name: A is Is your business use different than the previous use of if New Business 4 this building/space? X Yes 0 No If No. of CTR 'affected employees" at the site for a which this business license application is filed: ,!if (Read CTR information on reverse side) you are a new bulldino owner or nlanninn fn *pH C ti,ar,fi..a i ce i , •. Date: Paid: Buildin •U4 /LO /U4 0 Building/sign permit attached Police: Date issued: 2004 License 10:10 t' AA LUO A " S 1044 City of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188 -2599 206.433 -1800 This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31E1 OFFICE USE ONLY :I I Cash o a. Check No.: [b�a � Received by: —� _ ° 3 . Lie E13T in a pr ovisions on reverse side Receipt No.: 0 j r Planning: c)FANIS0. Zoning designation: 64)1,t_c I% ATTACHMENT T V111 1UAIt1LA FILL OUT THIS FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED WA State Sates Tax # or UBi number (9 digits): -:=" 6 I certify the information contained herein is correct. 1 understand that any untrue statement Is cause for revocation of my license. Si , nature: Application for 2004 City Business License Print bi c∎i r /Min/ 7 Title /Offs ( /770 7 t(/J UUS/ UU4 LICENSE FEE (based on T • . $b number of employees) 6 to 100.. 10 . . CHECK ONE m► _ 101 and above $200.0 Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office U4 /LO /U4 10:10 rAA LUO "4 1044 Date AUTOMATIC FIRE ALARM INSTALLATION NOTICE CTR INFORMATION SAFETY IN OVERNIGHT LODGING "of Signature �i m6gl 7 md7 Print Name Own ✓ 'Title /Position U111 TUl\R1LA (for new building owners or those planning to sell a building in Tukwila) As required by Tukwila Municipal Code (TMC) 16,40.100(5): when sold, existing commercial, industrial and multi-family dwellings which are not fully protected by an automatic sprinkler system shall have an Automatic Fire Alarm system installed. If not installed by the property owner, upon sale of the property It will be the responsibility of the seller to advise the buyer of this requirement. Multi- family dwellings which are sold and protected by an automatic sprinkler system shall install a fire alarm system complying with TMC 16.40.110B. ("Commute Trip Reduction" Program) In 1991, Washington State passed a law (RCW 70.94.21.551) directing city and county governments to institute programs which require their major employers (with 100 or more affected employees - including owners and managers - at a single worksite) to take measures to reduce the number of single- occupancy vehicle commute trips per week per employee. "Affected employees" are those full -time employees who are scheduled to begin their regular work day between 6:00 -9:00 AM, on at least two weekdays per week, 12 months of the year. (For purposes of this law, 35 hours per week is considered full - time.) Please indicate the number of your affected employees in the space provided on the front of this application. If you need more information about Tukwila's Commute Trip Reduction Program, please contact the Commute Trip Reduction Coordinator at 206 - 431.3670. (for Tukwila hotels /motels) IJ UU4/ UU4 Businesses engaged in providing overnight lodging (hotels /motels) are required to participate in the SAFETY IN OVERNIGHT LODGING PROGRAM per TMC 5.60. Coples of the governing ordinance and program description can be obtained from the Tukwila Police Department Crime Prevention Unit. THIS AREA IS TO BE COMP .ETED ONLY" BY APPLICANTS WITH HOME OCCUPATION HOME OCCUPATION (business operated out of your Tukwila residence) Conditions for Issuance of Business License Pursuant to Tukwila Municipal Code Section 18.06.430 and City policy, home occupations (businesses conducted in and out of a residence or apartment) are deffr.ed and must comply with certain conditions, as follow: 18.06.430 Home occupation. "Home occupation" means an occupation or profession which is customarily incident to or carried on in a dwelling place, and not one in which the use of the premises as a dwelling.place is largely incidental to the occupation carried on by a member of the family residing within the dwelling place; provided, that: 1. There shall be no change in the outside appearance of the surrounding residential development; 2. No home occupation shall be conducted in any accessory building; 3. Traffic generated by such home occupations shall not create a nuisance; 4. No equipment or process shall be used in such home occupation which creates noise, vibration, glare, fumes, odor, or electrical interference detectable to the normal senses off the lot; 5. The business involves no more than one person who is not a resident of the dwelling; and 6. An off- street parking space shall be made available for any non-resident employee. The above conditions are interpreted to mean at a.minimum that: • Employees do not come to the property or. a daily or weekly basis. • No more than one work car will be parked on or near the property at any one time. • Outside storage of materials will not occur. • Customers do not come to the premise (with the exception of daycares). The business operator visits customers at their location. • The interior of the premises appears primarily to be a residence. r— As the operator o the home -based business it is necessary p f for you to sign below, thereby attesting that you have read the above and agree to these conditions throughout the 1 fetime of the business conducted at the specified address. Business Name and Address: U i'I'IDn d ✓;ackr L i L'. `6 / 77 �� t / rl 41 tJ7 So • < 16)i l4 Co /g8' HU6. c. LUU4 L:isrm No•41'LZ N. Z/Z • To Whom It May Concern Re: Continuous Trucking Use Of Property At 12677 East Marginal Way South, Tukwila, Washington Edwin J. Becker is the owner of this property. Becker Trucking, Inc. paid rent for use of this property thru September, 2002, and for one day In October, 2002. Becker Transfer, Inc. paid rent for use of this property September, 2002 thru January, 2003. Edgmon and Son Trucking paid rent for use of this property February, 2003 thru July, 2004. Clayton M. Betz, Accountant For Edwin J. Becker 253-945-2053 Date /�� Becker Trucking, Inc. used this property as part of their trucking busiy f-. r the time • : riod above. %:/ Sa � �r 49003 c l acctg 8 tax tie* t ed backer 1 eb ebnt of bucking use - 7 04.ids STATEMENT OF TRUCKING USE plan Becker, President, Becker Trucking. nc. Date Becker T nsfer, Inc. used this props as part of their trucking b for a period a e, pk v k ot- )10) r (cry ti /04 �"h e - s t " e� i 9ra pe 4' Pat Becker, President, Becker Transfer, Inc. a S c-'" e< S Q4 er- pcc r Date /-c)?' y r- op cJr' f ATTACHMENT V Any part of this file must be reviewed by City Attorney prior to release 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 1 1 1;* C & D WELLS, LLC, a Washington limited liability company, and WELLS TRUCKING & LEASING, INC., a Washington corporation, Petitioners, v. CITY OF TUKWILA, Respondent. specifically includes: ORDER ON LAND USE PETITION - 1 ORIGINAL SUPERIOR COURT OF WASHINGTON FOR KING COUNTY NO. 05- 2- 31875 -9 KNT Hon. Brian Gain ORDER ON LAND USE PETITION • THIS MATTER came before the Court on the land use petition filed by petitioners C & D Wells, LLC, and Wells Trucking & Leasing, Inc. The Court considered the certified record, the Brief of Petitioner, the Respondent City of Tukwila's Hearing Brief and the Reply Brief of Petitioners, and the arguments of counsel. IT IS HEREBY ORDERED THAT the land use petition is GRANTED, and that (1) Those portions of the respondent's Notice of Decision dated January 28, 2005 that purport to restrict the use of the Property at issue in this case (located at 12677 East Marginal Way South, Tukwila, King County), and/or that purport to define the scope of the petitioners' valid nonconforming use of the Property are STRICKEN. The stricken text ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 (a) all text on page 4 of the Notice of Decision after the heading "DIRECTOR'S INTERPRETATION," (b) all text on page 5 of the Notice of Decision except the statement "[T]he nonconforming rights for the LDR portion of the property have not been abandoned" in the fourth paragraph on that page; and (c) the first two sentences on page 6 of the Notice of Decision. (2) • The status of the Propertyyis determined by the use of the Property at the time of annexation. • (3) Petitioners are the prevailing party, and shall be awarded costs in the amount of $673.32. DATED this 2 5i day of May, 2006. Approved as to Form: Wil ' J. Crittenden, WSBA No. 22 03 on ehalf of Robie G. Russell, WSBA No. 20579 Attorney for Petitioners Shelley M. W BA No. 21820 Lacey L. Madche, WSBA No..34876 Attorneys for Respondent ORDER ON LAND USE PETITION - 2 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621-2104 Brandon Miles - Re: Becker Page 1 r From: Shelley Kerslake <smkkd @comcast.net> To: "Brandon Miles" <bmiles©ci.tukwila.wa.us> Date: 4/5/06 9:40AM Subject: Re: Becker Brandon - I did and was planning to attend - however, I am still sick and am at home today. So here is where we are thi.cOiireCciftref to stnke_the 9astpvrttan_of,tie Dfrdcto ?s "d"ecisioi ' pgaiii5gyltl'(Ti par' y The remainder of the opinion will stand This ruling doesn't have a real significance to the current use of the property. If they want to change what they are doing on the property, they will have to get permits and the fight can start all over again. Since the Judge seemed to key in on the King County rezone we could it lude fn.the ostler that ` I Becker will not agree with this and it will necessitate another hearing. .rigid`�t cpnc�itior.s,�P.� y g 9• Given the Judge's bias against cities (I got some more info on this judge - it isn't just Tukwila -he has done this to other cities as well) vil11"keTy':not;5 `evail = "but we are willing to try if it is something the City wants to pursue. Other options: (1)We could appeal the courts decision. As we discussed Friday the Judge was just flat wrong and we would have a good chance with the court of appeals. This is not an inexpensive proposition. An appeal will likely cost the City $5,000.00 - $7,000 in attorney's fees on our part and should Becker prevail we would be on the hook for all of their attorney's fees as well. (it would pain me to have to give them any money) I can not enthusiastically endorse an appeal - since it really doesn't gain the city much and it isn't without risk. (2) We could clt 0>e'fi ;ck erminal,u our code to make our point abundantly clear, as the judge suggested. ..._,. <., .:,. We could (3 ) I�unset non- conformining uses that abut residential zones. The only thing I need an answer on today is whether you would like us to attempt to get the conditions to attach to the property. The other items we can discuss next week. We have 30 days to appeal the courts order once it is entered. So if you could please discuss this with Steve and give us the direction you would like to go it would be appreciated. I will be in the office tomorrow moming and we can talk more then if you have time and I will be checking my e-mail today, if you have any questions. Shelley M. Kerslake Kenyon Disend, PLLC. 11 Front Street S. Issaquah, WA 98027 425.392.7090 Original message From: "Brandon Miles" <bmiles @ci.tukwila.wa.us> > Did you get my appointment request for today at 2pm? > Brandon J. Miles > Assistant Planner > Department of Community Development > City of Tukwila > tel (206) 431 -3684 > fax (206) 431 -3665 > bmiles@ci.tukwila.wa.us 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 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY C & D Wells, LLC, a Washington limited liability company and WELLS TRUCKING & LEASING, INC., a Washington corporation, v s. CITY OF TUKWILA, Petitioner, Res • ondent. The Honorable Brian Gain LUPA Hearing Date: March 6, 2006 9:00 a.m. NO. 05 -2- 31875 -9KNT RESPONDENT CITY OF TUKWILA'S HEARING BRIEF I. RELIEF REQUESTED COMES NOW the Respondent, City of Tukwila ( "City"), a municipal corporation, by and through its attorneys, Shelley M. Kerslake, Lacey L. Madche, and Kenyon Disend, PLLC, and requests dismissal of Petitioners, C & D Wells, LLC and Wells Trucking & Leasing, Inc., ( "Wells "), Land Use Petition, and submits this Hearing Brief in support thereof. II. INTRODUCTION This case involves a dispute over a code interpretation issued by the City regarding whether a nonconforming use (i.e., parking) located on a portion of Wells' KENYON DISEND, PLLC RESPONDENT CITY OF TUKWILA'�"PiRtr1 T 1 FA L THE AI ONTST STREET SOUTH �vJ `` ��vv 11 FRONTSTREETS 1 1ssAQUAH, WASHINGTON 9802B02 7 -3820 F:MPPS\CIV\TUKWILA \WeHIs1PLD LUPA Response Brie12.doc/KIP /02/2I/06 (425) 392 -7090 FAX (425) 392 -7071 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 property had been abandoned or otherwise terminated from months of nonuse. Wells, as well as predecessor owners, have operated a truck terminal on a portion of the subject property for several years. The remaining portion of the property has been used solely for parking semi -trucks and trailers ancillary to the operation of the truck terminal since the property was annexed into the City of Tukwila. In favor of the Wells, the City's code interpretation concluded that the nonconforming use had not been abandoned or otherwise terminated. Wells appealed the City's code interpretation to the Hearing Examiner alleging the City erroneously defined the scope of the nonconforming use when determining whether the use had been terminated. The Hearing Examiner affirmed the City's code interpretation and this LUPA appeal followed. M. STATEMENT OF FACTS The property at issue is Located at 12677 East Marginal Way South, Tukwila, King County, Washington ( "Property"). AR 8 at 0123. The City annexed the Property in 1989 as part of the Riverton Annexation. AR 8 at 0113. King County's zoning of this Property at the time of annexation was Light Manufacturing with Conditions ( "MLP "). AR 8 at 0118. Upon annexation, the Property was then zoned consistent with the Tukwila Municipal Code ( "TMC "). Subsequent to an annexation, all previous legal uses existing on an annexed property not permitted under the annexing City's zoning code become legal nonconforming uses. See e.g., TMC § 18.06.560. Under the City's zoning code, the eastern portion of the Property is zoned Commercial/Light Industrial ( "C/LI ") and the western portion is zoned Low Density RESPONDENT CITY OF TUKWILA'S HEARING BRIEF - 2 F:IAPPSTIV1TU1:W1LA1Wells1PLD LUPA Response Briel2.doc/ICIP /0111106 KENYON DISEND, PLLC THE AIurndu'AL Lon FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98037 -3820 (425) 392 -7090 FAX (425) 392 -7071 Residential ( " LDR "). AR 8 at 0097. Prior to annexation and thereafter, Becker Trucking used the eastern portion of the Property, zoned C/LI, to manage and operate a truck terminal. AR 8 at 0123 - 126, 175 -178. A truck terminal is an outright permitted use in a C/LI zone. TMC § 18.30.020; AR 8 at 0124. The truck terminal, however, does not extend to the LDR portion of the Property. AR 8 at 0123 -124, 167. Historically and presently the LDR portion of the Property was used to park semi - trucks and trailers in association with the truck terminal AR 8 at 123 -27, 130 -141. Neither parking semi - trucks and trailers nor the operation of a truck terminal are permitted uses in a LDR zone. Prior to annexation, however, Becker Trucking and other predecessor owners used the LDR portion of the Property to park semi- trucks and trailers. Accordingly, under TMC § 18.06.560 parking on the LDR portion of the Property is considered a legal nonconforming use. After months of non -use of the truck terminal, on September 14, 2004, Becker Trust requested the City issue a formal code interpretation pursuant to TMC § 18.96.020 regarding whether the nonconforming rights existed on the LDR portion of the Property. AR 4 at 0055 -56; AR 8 at 0185 -186. The City issued a code interpretation on January 28, 2005 concluding that the nonconforming uses on the LDR portion of the Property had not been terminated and that the non - conforming rights are as follows: "Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal." AR 4 at 0025; AR 8 at I TMC§ §18.10,1830. 2 On April 29, 2005, the Becker Family Revocable Living Trust ("Becker Trust") sold the Property to Wells Trucking ("WelIs ") AR 8 at 0111. Wells was substituted for Becker Trust, owner of Becker Trucking, as the appellants during the administrative appeal before the Hearing Examiner and accordingly is the Petitioner in these proceedings. AR 2 at 0008; AR 7 at 0090 -93. KENYON DISEND, PLLC RESPONDENT CITY OF TUKWILA'S HEARING BRIEF- THEMUMCSPAL L NFUMI 11 Fawn 3 IssAQUAH, WASHINGTON S 980_ 2 7 - 3820 F:IAPPSICIVITUKWILA \WeIIs1PLD LUPA Response Brie12.doc/1 IP/02/21/06 (425) 392 -7090 FAX (425) 392 -7071 0097. Specifically, the City in its code interpretation concluded that: The LDR portion of the property was used to park semi - trucks and semi - truck trailers. The LDR portion of the property was not used as a truck terminal and was limited to only the parking of semi - trucks and semi -truck trailers. (Emphasis added); AR 4 at 0024, 25. In other words, historically, the LDR portion of the Property was used solely for parking — a use associated with but nonetheless distinct from the truck terminal operating on the C/LI portion of the Property. AR 4 at 0025; AR 8 at 0097. Upholding the City's code interpretation, the Hearing Examiner similarly concluded that: The City correctly points out that the historical records, which are not disputed, do not show such activities at the site at the time of annexation, but instead show parking of vehicles associated with the truck terminal activities occurring on the C/LI portion of the property. (Emphasis added); AR 1 at 0005. As the Hearing Examiner properly noted, the historical records submitted by the City are not disputed and these records are dispositive of the issue before the court. These records include the following: (a) a detailed staff report prepared on July 12, 2005 (AR 8 at 0121 -29); (b) a map illustrating the portion of the Property used for parking, pre - dating annexation (AR 8 at 0141); (c) aerial photographs taken of the Property (AR 8 at 0167 -74); (d) declarations of residents abutting the Property (AR 8 at 0175 -178); (e) Historical records from King County, pre - dating annexation, wherein the owner indicated the LDR portion of the Property was used for parking. (AR 8 at 130 -140); (f) a letter from a predecessor owner, Rolan Becker, to the City explicitly stating that he "has used this property since April 2000 to park semi -truck trailers. It has always been our intent to continue to use this property for the commercial parking of semi- tractors, KENYON DISEND, PLLC RESPONDENT CITY OF TUKWILA'S HEARING BRIEF 11 FRO L1Ir 11 ROwsSii TR i Soum 4 IssaQuAR, WASHINGTON 98027 -3820 F:1APP51CIV1TUKWILAAWelLAPLD LUPA Response Brfeadac/K1P/02/2I/06 (425) 393 -7090 FAX (425) 392 -7071 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 trailers and employee vehicle parking." (AR 8 at 0180); and (g) a statement of trucking use attached to an Application for 2004 City Business License (AR 8 at 0183). The Tukwila Municipal Code does not define "truck terminal." Consistent with rules of statutory construction, the City interpreted "truck terminal" based on the ordinary dictionary definition which defines a truck terminal "as either end of a carrier line with classifying yards, docks and lighterage facilities, management offices, storage yards and freight and passenger stations." See Webster's Third International Edition Dictionary. AR 1 at 0005. With regard to the definition of "truck terminal," the Hearing Examiner properly concluded that: The appellant [Wells] has submitted definitions from out -of -state codes in support of its argument that the parking areas should also be defined as "truck terminal." But the use of such definitions is not supported by any cited rules of statutory construction. (Emphasis added); AR 1 at 0005. Wells alleges in this appeal that because the City's code interpretation erroneously defined "truck terminal" the City improperly limited the scope of the nonconforming use existing. on the LDR portion of the Property. Brief of Petitioner's at p. 4 at i¶ 1 -10; p. 6 at ¶¶ 7 -11. On February 10, 2005, Wells appealed the City's code interpretation to the City Hearing Examiner challenging the City's authority to define the scope of the existing nonconforming right. The City moved for Summary Judgment. After considering the related briefing and oral argument, on September 8, 2005, the Hearing Examiner issued an Order granting the City's Motion for Summary Judgment and affirmed the City's code interpretation. AR 1 at 0001 -0006. Specifically, the Hearing Examiner held the following: KENYON DISEND, PLLC THE RESPONDENT CITY OF TUKWILA'S HEARING BRIEF- FR UNICIPAL AWFl Flail 11 11 NowSmarr Soum 5 ISSAQUAH, WASHINGTON 98027 -3820 F:IAPPS\CIV1TUKW1LA1We11s1PLD LUPA Response Brlet2,doe/KIP/02/21/06 (425) 392 -7090 FAX (425) 392 -7071 [i]n order to determine whether a nonconforming use at the LDR -zoned portion of the site had been abandoned, the Director had to determine what use or category of uses had been established on the LDR -zoned property at the time of annexation, and whether that use had continued. It would be unreasonable for the Director to confirm the continued ... existence of a nonconforming use without determining what that use was.... The Director's interpretation did not place restrictions on the Property. The Director's interpretation ... identified the use that the Director had determined to be the legally nonconforming use at the LDR site. ... The interpretation does not contain conditions ..., does not on its face purport to be a permit or an enforcement order, and no Code provisions have been citied that identify the Director's interpretation as a permit, enforcement order, or other action that restricts use of the property. The City correctly points out that the historical records, which are not disputed, do not show such activities at the site at the time of annexation, but instead show parking of vehicles associated with the truck terminal activities occurring on the C/LI portion of the property. The appellant has submitted definitions from out-of-state codes in support of its argument ... [b]ut the use of such definitions is not supported by any cited rules of statutory construction. (Emphasis added); AR 1 at 0004 -5. IV. QUESTION PRESENTED Whether the Hearing Examiner's affirmation of the City's code interpretation is an erroneous application of law? V. LEGAL ANALYSIS A. Land Use Petition Act. The Land Use Petition Act ( "LUPA "), Chapter 36.70C RCW, governs review of land use decisions. Wenatchee Sportsmen Ass 'n v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000). LUPA replaced the writ of certiorari procedure, creating the exclusive avenue for judicial review of land use decisions. RCW 36.70C.030. Its stated Shoreline Community College v. Employment Security, 120 Wn.2d 394, 842 P.2d 938 (1992), KENYON D1SEND, PLLC RESPONDENT CITY OF TUKWILA'S HEARING BRIEF- THE MUNICIPAL LAW RIM 11 Ron STREET Sourx 6 ISSAQUAH, WASHINGTON 98027 -3820 F:NPPSICIV1TUKWILA \We11s1PLD LUPA Response Hrie0.doe/K1P/0121/06 (425) 392 -7090 FAX (425) 392 -7071 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 purpose is "to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review." RCW 36.70C.010. RCW 36.70C.020(1) defines a "land use decision" as a "final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals." LUPA applies equally to ministerial and quasi-judicial land use decisions. Chelan County v. Nykrein7, 146 Wn.2d 904, 940, 53 P.3d 1 (2002). Appeals such as this are limited to review of the administrative record created by the Hearing Examiner. RCW 36.70C.120(1). Review of the administrative record is conducted de novo. Thornton Creek Legal Def. Fund v. City of Seattle, 113 Wn.App. 34, 47, 52 P.3d .522 (2002). The party seeking relief from the land use decision bears the burden of meeting one of the six standards set forth below: (a) (b) (c) (d) (e) (f) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; The land use decision is a clearly erroneous application of the law to the facts; The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or The land use decision violates the constitutional rights of the party seeking relief. (Emphasis added); RCW 36.70C.130(1); Isla Verde Intl Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751, 49 P.3d 867 (2002). RCW 36.70C.130(1) "reflects a clear RESPONDENT CITY OF TUKWILA'S HEARING BRIEF - 7 F:IAPPSICIVITUKWILAIWelIs1PLD LUPA Response Briel2.dac/KIP/02/21 /06 KENYON DISEND, PLLC THE MUNICIPAL Lam FIRAI 1 1 FRoNr STREET Soum ISSAQUAH, WASHINGTON 98027 -31120 (425)392 -7090 FAX (425)392 -7071 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 legislative intention that this court give substantial deference to both legal and factual determinations of local jurisdictions with expertise in land use regulation." Timberlake Christian Fellowship v. King County, 114 Wn.App. 174, 180, 61 P.3d 332 (2002), review denied, sub nom. Citizens for a Responsible Rural Area Dev. v. King County, 149 Wn.2d 1013, 69 P.3d 874 (2003). In the present case, Wells alleges that the Hearing Examiner erroneously interpreted the law by affirming the City's code interpretation because it "attempted to restrict the use of the Property and/or define the scope of the valid nonconforming use," and that such restrictions are beyond the scope of the code interpretation requested. Brief of Petitioners at p. 1 ¶¶ 22 -25; p. 2 IN 1 -3; RCW 36.70.130(1)(b). Wells further alleges that the City's determination that the use of the outdoor areas surrounding the Property is limited to "parking" was erroneous as a matter law. RCW 36.70.130(1)(b). Accordingly, the present case should be considered under the standard of relief set forth in RCW 36.70C.130(1)(b) requiring Wells to prove that the land use decision is an erroneous interpretation of the law in light of the substantial deference afforded to the City. B. The City's Code Interpretation is Not an Erroneous Interpretation of the Law. When reviewing an alleged error under RCW 36.70C.130(1)(b), courts afford local jurisdictions deference with regard to construction of land use ordinances. Pinecrest Homeowners Ass'n v. Glen A. Cloninger & Assocs, 151 Wn.2d 279, 290, 87 P.3d 1176 (2004). Accordingly, pursuant to RCW 36.70C.120(1)(b), this Court must give deference to the City's code interpretation and the Hearing Examiner's affirmation of such. With or without this statutory grant of deference, however, the City's code interpretation and the Hearing Examiner's Order affirming it is not an erroneous KENYON DISEND, PLLC RESPONDENT CITY OF TUKWILA'S HEARING BRIEF- THE AIUMCIPAL ,iwFlat 11 FRONT STREET SOUTH 8 IssAQUAH, WASHINGTON 98027 -3820 F:IAPPSICIVUUKWILA1We ls1PLD LUPA Response Bricl2.doc/KIP/02/21 /06 (425) 392 -7090 FAX (425) 392 -7071 application of law. Wells fails to prove otherwise and therefore cannot meet its required burden under RCW 36.70C.120(1)(b). This case initially involved a review by the City as to whether the nonconforming use on the LDR portion of the Property had been terminated or otherwise abandoned from months of nonuse. A code interpretation is a question of law. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). To begin, TMC § 18.06.590 defines a nonconforming use as the use of land which does not conform to the use regulations of the district in which the use exists. Under TMC § 18.70.040 a nonconforming use is permitted to continue to operate provided the use remains lawful and is subject to the restrictions set forth in TMC § 18.70.040. Similarly, Washington case law defines a nonconforming use as a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. Andrew v. King County, 21 Wn. App. 566, 568 P.2d 509 (1978). Nonconforming uses are typically not favored in law, and it is only to avoid injustice that zoning laws accept them. Id. at 570. To qualify as a nonconforming use the use in issue must lawfully exist on the date specified in the zoning code. Anderson v. Island County, 81 Wn.2d 312, 321, 501 P.2d 594 (1972). If the nonconforming use is subsequently abandoned or discontinued, the right to continue it as a nonconforming use ends. Andrew, supra at 571. In this case, the City found the nonconforming use on the LDR portion of the Property had not been terminated or otherwise abandoned. In order to determine whether KENYON DISEND, PLLC RESPONDENT CITY OF TUKWILA'S HEARING BRIEF- THE MUNICIPAL LAW FIRA1 9 ISSAQ WAS SOUTH 3820 F:1APP5ICIVITUI:WILAIWellsIPLD LUPA Response Briendac/KIP/02/21/06 (425) 3927090 FAX (425) 392-7071 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 non - conforming right has been abandoned, the City must first determine what is allowed outright in the zone as well as what nonconforming rights were granted to the Property when annexation occurred. AR 1 at 0004. A nonconforming use is defined in terms of the property's lawful use established and maintained at the time the zoning was imposed. Meridian Minerals Co. v. King County, 61 Wn. App. 195, 207, 810 P.2d 31 (1991). In other words, to determine whether a nonconforming use has been terminated or otherwise abandoned the City must logically first define the scope of the use in question. Wells' allegation that defining the scope of the nonconforming use located on the LDR portion of the Property is erroneous as a matter law is unsupported and fails to overcome the burden set forth in RCW 36.70C.130(1)(b). Furthermore, the record is clear that a truck terminal is located on the C/LI portion of the Property and parking associated with the truck terminal is found on the LDR portion of the Property. AR 1 at 0003 -4; AR 8 at 0108 -183. Wells Trucking, nonetheless, urges the Court to consider the entire site to have nonconforming rights for a "truck terminal." Doing so is not appropriate given the facts of this case. As previously stated, a truck terminal occupies the C/LI portion of the Property. Wells would have the City extend this use to the LDR portion of the Property, which does not contain any structure. The Tukwila Municipal Code ( "TMC ") does not define "truck terminal." In the absence of a statutory definition, the rules of statutory construction dictate that the Court give words their ordinary dictionary definition. Shoreline Community College v. Employment Security, 120 Wn.2d 394, 842 P.2d 938 (1992). Webster's Third International Edition Dictionary defines a truck terminal "as RESPONDENT CITY OF TUKWILA'S HEARING BRIEF - 10 F:IAPPSICIVITUKWILA1WcI1s\PLD LUPA Response Bde12.doc/KIP/02/21/06 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX(425)392 -7071 either end of a carrier line with classifying yards, docks and lighterage facilities, management offices, storage yards and freight and passenger stations." It is undisputed that the LDR potion of the Property was not historically used for any of these indicia of truck terminal usage. AR 1 at 0005. The record is clear - the Property was historically used for parking accessory to the building on the C/LI portion of the Property. AR 1 at 0003 -6; AR 8 at 0130 -166, 175 -180. The Hearing Examiner properly concluded that Wells' submittal of out -of -state definitions relating to "truck terminal" are without weight and are not supported by any cited rules of statutory construction. AR 1 at 0005. Reference to self - serving declarations and a letter from the City's Code Enforcement officer neither negate nor otherwise substantiate Wells' allegations. Given that the LDR portion of the Property was never used for a "truck terminal" at the time the zoning was imposed, it would be impermissible to expand the nonconforming use in that manner The record is also clear that prior to annexation by the City, the LDR portion of the Property was used solely for parking vehicles associated with the outright permitted use on the C/LI portion of the Property. AR 1 at 0003 -4. The use of that portion of the Property has continued to the present time. The City correctly concluded and the Hearing Examiner properly affirmed that although there was a break in use of the truck terminal on the C/LI portion of the Property, the owner continued to park vehicles on the LDR Property, thus the nonconforming right did not extinguish. To reach the result submitted by Wells would be erroneous and render results inconsistent with the Tukwila Municipal Code. For example, if the LDR portion of the Property were considered to have nonconforming rights for a truck terminal, it would RESPONDENT CITY OF TUKWILA'S HEARING BRIEF - 11 FAAPPSICIVITUKWILA\Wc11sWLD LUPA Response Briel2.docIK1P/0221/06 KENYON DISEND, PLLC THrMunncrra . Law FIRM 11 Faorrr STREET Souni ISSAQUAH, WASHINGTON 911027 -3820 (425)392-7090 FAX (425) 392 -7071 allow the existing truck terminal building on the C/LI portion of the Property to expand to the LDR portion of the Property. TMC § 18.70.040. It would also allow the existing truck terminal to be demolished and relocated on the LDR portion of the Property. Id. Both propositions would change the nature of the nonconforming use and clearly expand such rights contrary to well- established law. Meridian Minerals Co. v. King County, 61 Wn. App. 195, 810 P.2d 31 (1991). The Tukwila Municipal Code specifies permitted uses for all zoning designations. Without doing so, zoning designations become superfluous. Just as the City may specify uses permitted for properties zoned Single Family Residential ( "SFR "), the City may, as well, specify uses permitted in C/LI and LDR zoned areas. In this instance, the City properly interpreted the Tukwila Municipal Code and its interpretation is afforded deference. RCW 36.70C.130(1)(b). The City has not denied Wells use of Property. AR 1 at 0005. Rather, the City confirmed existence of a nonconforming use in favor of Wells and authorized use of the LDR zoned parcel consistent with its existing nonconforming rights and, more importantly, consistent with the historical use of that portion of the Property. These nonconforming rights include parking in association with use of the truck terminal located on the C/LI zoned parcels. Wells would have this Court believe that the City's code interpretation erroneously restricts the use of the Property. Just as the City does not restrict uses associated with parking in a residential driveway (i.e., cleaning a vehicle, ° Nonconforming use in existence when a zoning ordinance is enacted cannot be changed into some other kind of a nonconforming use. Coleman v. City of Walla Walla, 44 Wn.2d 296, 300 -01, 266 P.2d 1034 (1954) (nonconforming rooming house cannot be changed to fraternity house). See, also, Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 150- 51, 995 P.2d 33 (2000) (legal nonconforming use as church could not be resumed after intervening years as art school); Shields v. Spokane Sch. Dist. No. 81, 31 Wn.2d 247, 255, 196 P.2d 352 (1948) (nonconforming elementary school cannot change to trade school). RESPONDENT CITY OF TUKWILA'S HEARING BRIEF - 12 FAAPP51CIV1TUKWILA1WelIsWLD LUPA Response Brief2.doc/KIP/02/21/06 KENYON DISEND, PLLC THE MUNICIPAL I.irrFii i 11 ARONT STST Scurx ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX(425)392-7071 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 repairing a flat tire, etc.) the City's code interpretation neither restricts nor narrowly defines associated uses with parking on the LDR portion of the Property. Should Wells Trucking seek to use the LDR zoned parcel contrary to or in addition to the existing nonconforming use, such use must comport with those permitted in a LDR zone. The City need not, nor should not, address hypothetical uses associated with the expansion or modification of a nonconforming right. Maintaining this appeal renders the City to speculate what further uses Wells Trucking contemplates in addition to the existing nonconforming rights This speculation is, indeed, not an appropriate use of the appellate process. Should Wells Trucking contemplate a use for the LDR portion of the Property, at that point, a code interpretation would be in order to address that new use to determine if the proposal is within the nonconforming use rights. VI. CONCLUSION The City issued a code interpretation consistent with that requested by Wells. Wells' allegation that issuing a code interpretation regarding whether the nonconforming use has been terminated or otherwise abandoned without first defining the scope of the nonconforming use is illogical at best. Furthermore, Wells' reliance on self - serving declarations and a letter from the City's code enforcement officer relating to noise violations in no manner comports to overcome the substantial deference afforded to the City pursuant to RCW 36.70C.130(1)(b). Accordingly, the City respectfully requests this Court dismiss Wells' Land Use Petition. DATED this Z v day of February, 2006. KENYON DISEND, PLLC RESPONDENT CITY OF TUKWILA'S HEARING BRIEF- THE MUNICIPAL L tirFiear 11 FRONT STREET SOUTH 13 ISSAQUAH, WASHINGTON 98027 - 3820 FAAPPS \CMTUKWILA \Wells\PLD LUPA Response Bdet2.doc/KDLF/02 22/06 (425) 392 -7090 FAX (425) 392 -7071 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENYON DISEND, PLLC By1t 1 - - c . Shelley M. Kerslake WSBA No. 21820 Lacey L. Madche WSBA No. 34876 Attorneys for City of Tukwila KENYON DISLND, PLLC HEARING BRIEF- THE MUN/cJPAL RESPONDENT CITY OF TUKWILA'S 11 FRow Sneer Salmi 14 ISSAQUAH, WASHINGTON 98027 - 3820 FAAPPS1CIVlTUKWILA Welts1FLD LUPA Response Brie12.dodKDLF /02/21/06 (425) 392 -7090 FAX (425) 392 -7071 Roble G. Russell 76 S. Main St. Seattle, WA 98104 Fax: 206 -621 -2104 154 First Class, U.S. Mail, Postage Prepaid ❑ Legal Messenger 0 Overnight Delivery ❑ Facsimile y E -Mail William J. Crittenden 927 North Northlake Way Ste. 301 Seattle, WA 98103 William J. Crittenden 927 North Northlake Way Ste. 301 Seattle, WA 98103 First Class, U.S. Mail, Postage Prepaid U Legal Messenger ❑ Overnight Delivery ❑ Facsimile E -Mail 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DECLARATION OF SERVICE I, Kathy I. Putt, declare and state: 1. I am a citizen of the State of Washington, over the age of eighteen years, not a party to this action, and competent to be a witness herein. 2. On the 21st day of February, 2006, I served a true copy of the foregoing Respondent City of Tukwila's Hearing Brief on the following counsel of record using the method of service indicated below: I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 24 day of February, 2006, at Issaquah, Washington. RESPONDENT CITY OF TUKWILA'S HEARING BRIEF - 15 FMPPS\C1V17UI:WILA1We1Is1PLD LUPA Response 6rlcRdoc/KIP/02/21/06 tt QP. ' Kathy I. KENYON DISEND, PLLC THE.AlumaPAL LA0'Futu 11 FRONT STREET SOUR IssAQUAH, WASHINGTON 98027-3320 (425) 392 -7090 FAX (425) 392 -7071 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 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY C & D WELLS, LLC, a Washington limited liability company, and WELLS TRUCKING & LEASING, INC., a Washington corporation, v. CITY OF TUKWILA, BRIEF OF PETITIONERS - 1 Petitioners, Respondent. NO. 05 -2- 31875 -9 KNT Honorable Brian Gain BRIEF OF PETITIONERS Petitioners C & D Wells, LLC, and Wells Trucking & Leasing, Inc. ( "Wells "), by and through their attorney of record, Robie G. Russell, submit this memorandum in support of their appeal of a decision of the Tukwila Hearing Examiner pursuant to the Land Use Petition Act, RCW Chapter 36.70C ( "LUPA'). Wells respectfully requests that the Court reverse an Order of the Hearing Examiner that upheld a Notice of Decision issued by the City of Tukwila that imposed certain conditions and restrictions on the use of Property owned by Wells. A copy of the Hearing Examiner's Order is attached as Appendix F. Specifically, Wells requests that the Court vacate those portions of both the Order and Notice of Decision that attempt to restrict the use of the Property and/or define the scope of the valid nonconforming use of the Property. Such restrictions are beyond the scope of the ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 code interpretation requested by the former owner, which was directed at the question of whether the non - conforming use of a truck terminal was abandoned. Furthermore, the City's determination that the use of the outdoor areas of the Property is limited to "parking" was erroneous as a matter of law. I. STATEMENT OF THE CASE A. The Property The Property is a truck terminal located at 12677 East Marginal Way South, Tukwila, King County. The Property consists of two sets of contiguous lots. The first set of lots, facing East Marginal Way, is currently zoned "Commercial/Light Industrial" ( "C/LI "). See Tukwila Municipal Code ( "TMC ") Chap. 18.30. The second set, facing South 128th Street, is currently zoned "Low Density Residential" (LDR). See TMC Chap. 18.10. See Certified Record ( "CR ") 167. BRIEF OF PETITIONERS - 2 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104-2514 (206) 621 -2104 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 Prior to April 29, 2005, the Property was owned by Becker Family Revocable Living Trust ( "Trust "). While the administrative appeal was pending the Property was sold to Petitioner Wells. Wells is continuing the appeal originally filed by the Trust. B. Applicable Zoning The use of the Property as a truck terminal predates the annexation of the Property by the City of Tukwila in 1989. Prior to that date, the entire Property was zoned "M -L -P" by King County. The truck terminal was a permitted use in that zone. CR 123. The line that separates the LDR portion of the property from the C/LI portion was arbitrarily drawn by the City of Tukwila when it zoned the area. That line bears no relationship to the physical characteristics or use of the property other than the fact that the terminal building is on the C/LI portion. (See diagram). Since annexation the Property has been used by various tenants as a truck terminal. It is undisputed that this use of the Property is classified as a "Truck Terminal" under the Tukwila zoning code. CR 22. "Truck Terminal" is a permitted uses in the C/LI, "Light Industrial," "Heavy Industrial," "Manufacturing Industrial Center /Light," "Manufacturing Industrial Center/Heavy," and "Tukwila Valley South" zones. See TMC 18.30.030(61); 18.32.020(59); 18.34.020(62); 18.36.020(39); 18.38.020(45); 18.40.020(62). It is undisputed that the use of the C/LI portion of the Property at a truck terminal is a permitted use. CR 22. It is also undisputed that the use of the LDR portion of the Property as a truck terminal is a valid nonconforming use. Id. BRIEF OF PETITIONERS - 3 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 C. Use of Property by Tenants The Property has been used as a truck terminal for many years. The Property was leased to Becker Trucking, Inc. in 1997. CR 28 -31. Becker Trucking used the Property as a truck terminal. The Lease expired in March of 2002, at which time Becker Trucking began to move some of its operations to a new location. But Becker Trucking continued to use the Property as a terminal through January 2003. CR 33 -34. The Property was also used by other trucking companies, including Becker Transfer Company, from October 2002 through January 2003. CR 36. The Property was leased to another trucking company — Edgmon & Son Trucking — on January 23, 2003. Edgmon began using the Property on February 2003. CR 42-43. D. Dispute Over Nonconforming Use In 2003, the City of Tukwila began to question whether the nonconforming use of the Property as a truck terminal had been abandoned for purposes of TMC 18.70.040(3). This issue initially arose in the context of disputes between the City and various tenants over the requirement of a business license to operate the truck terminal. The Trust, as the actual owner of the Property, was not a party to these licensing disputes. Based on business license records, the City erroneously concluded that the use of the Property had terminated in April 2002 when the current tenant, Becker Trucking, moved its headquarters to another location. The site was in fact still being used, although the City asserted that the tenants lacked a proper business license. CR 22 -23. A new tenant, Edgmon & Son Trucking, took possession of the Property in February of 2003. On August 30, 2004, the City denied Edgmon's application for a business license. BRIEF OF PETITIONERS - 4 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 - 2514 (206) 621 -2104 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 The City asserted that business license records indicated a gap in the use of the Property as a truck terminal from April 17, 2002 to January 1, 2004. Edgmon did not appeal the license denial, and vacated the Property on October 1, 2004. CR 23 -24. E. Director's Interpretation Edgmon's failure to appeal was not binding on the Trust, and did not establish that the nonconforming use of the Property had been abandoned. By letter dated August 27, 2004, the City suggested using a formal code interpretation to resolve the dispute. The City wrote to the Trust's attorney: If your client disagrees with the determination of the Department of Community Development that his non - conforming rights have been abandoned, I suggest the following process to conclusively resolve the issue: Within 14 days of receipt of this letter your client will file a letter with the City requesting a code interpretation, pursuant to SMC 18.96.020. Pursuant to the Code, the Director of DCD will render a decision on the land use issue and that issue is appealable to the hearing examiner pursuant to TMC 1.8.90 -010. CR 51. A copy of this letter is attached as Appendix A. By letter dated September 13, 2004, the Trust implemented the City's suggestion by requesting a code interpretation. The letter stated: This letter constitutes our formal request for a code interpretation on your assertion that the valid non - conforming use of the Becker property has been abandoned or terminated. CR 55. A copy of this letter is attached as Appendix B. Although the Trust did not have the burden of proof, the Trust provided the City with declarations and documents showing that the Property had been continuously used as a truck terminal. CR 33-49. On January 28, 2005, the City issued its Notice of Decision, which clearly stated that the nonconforming use of the Property has not been abandoned: BRIEF OF PETITIONERS - 5 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621-2104 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 While Becker Trucking, Becker Transfer, and Edgmon and Son Trucking were operating at the site without a business license, based upon the Declarations provided to the City, the signed contract between Edwin J. Becker and Becker Trucking Incorporated it is established that they were in fact operating a truck terminal on the C/LI portion of the site and were using the LDR portion for the parking of semi - trucks and semi -truck trailers and thus the non - conforming rights for the LDR portion of the property have not been abandoned. CR 25. A copy of the Notice of Decision is attached as Appendix C. F. Director's Improper Additional Conditions The paragraph quoted above resolved the only issue on which a code interpretation had been requested by the Trust: whether the nonconforming use of the Property had been abandoned. Unfortunately, the City attempted to narrowly define the scope of the nonconforming use, and improperly imposed conditions on maintaining that use. The Notice of Decision states: The non - conforming rights are as follows: Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal.... Please note that merely parking a semi -truck or semi -truck trailer on the property will not preserve the non - conforming right. The LDR portion of the property must be used in conjunction with the building on the property. CR 25 - 26; Appendix C at 5 -6. G. Appeal to the Tukwila Hearing Examiner The Trust filed a timely administrative appeal to the Tukwila Hearing Examiner. On or about April 29, 2005, while the appeal was pending, Wells purchased the Property from the Trust. Wells moved to substitute for the Trust as the appellant. The City did not object to substitution, and the motion was granted. CR 2; Appendix F at 2. Wells continues to prosecute this appeal as the new owner of the Property. BRIEF OF PETITIONERS - 6 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 - 2514 (206) 621 -2104 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 No evidentiary hearing was held, no witnesses were called, and no findings of fact were made. Instead, over Wells' objections, the Hearing Examiner considered the merits of the appeal on cross - motions for summary judgment. CR 2; Appendix F at 2. The Hearing Examiner held oral argument on the motions on August 30, 2005. CR 1; Appendix F at 1. One of the critical issues before the Hearing Examiner was the meaning of the term "truck terminal." Although a "truck terminal" is specifically listed as a permitted land use in certain zones, including the C/LI zone, the term "truck terminal" is not defined in the Tukwila zoning code. See TMC 18.30.030(61) ( "truck terminals" are permitted in C/LI zone). In its briefing the City erroneously assumed that the "truck terminal" use was limited to the truck terminal building. CR 105. But every definition of "truck terminal" presented — including the dictionary definition offered by the City — recognized that a truck terminal includes outdoor areas: Webster's Third International Edition Dictionary defines truck terminal "as either end of a carrier line with classifying yards, docks and lighterage facilities, management offices, storage yards, and freight and passenger stations." (Emphasis added). CR 105. Defmitions of "truck terminal" from municipalities across the United States confirm that the term "truck terminal" includes outdoor areas. CR 74. To further prove that the City's definition was wrong, Wells submitted a declaration from Rolan Becker, the former operator of the truck terminal. Becker explained: 3. The truck terminal includes both a terminal building and large outdoor areas around the building. The outdoor areas of the truck terminal are not merely used for "parking." BRIEF OF PETITIONERS - 7 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 4. The outdoor areas are used for many different trucking operations including, but not limited to, (i) moving and backing trucks and semi - trailers, (ii) loading freight from one trailer to another, (iii) staging trucks that are waiting for drivers, (iv) storing freight, trucks, trailers, and containers, (iv) washing trucks, (v) performing maintenance on trucks and trailers, (vi) moving tires from trailer to trailer, and (vii) warming up truck engines in the during the winter months. CR 16 -17. A copy of the Second Declaration ofRolan Becker is attached as Appendix D. After the parties summary judgment materials were submitted, Wells received a letter from a Tukwila code enforcement officer, Kathryn Stetson. The letter stated that the City had received complaints from neighbors "concerning excessive noise coming from your truck terminal operation." CR 2. A copy of this letter is attached as Appendix E. This letter demonstrated that the City's own enforcement staff understood that the term "truck terminal" includes "operations" in the outdoor areas of the Property — directly contrary to the untenably narrow defmition suggested by the City's memoranda. The Hearing Examiner chose to ignore the discrepancy, holding that the letter was inadmissible for lack of "probative value." CR 2; Appendix F at 2. On September 8, 2005, the Hearing Examiner issued its Order upholding the Director's decision as a matter of law: Conclusion 19. The undisputed facts in this matter show that the Director's interpretation was correct. At the time the subject property was designated LDR, that property was used for parking accessory to the use occurring on the C/LI property. The Director also had authority to issue this interpretation, and as a matter of law, the interpretation should be affirmed. CR 6; Appendix F at 6. This LUPA action followed. BRIEF OF PETITIONERS - 8 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104-2514 (206) 621 -2104 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 BRIEF OF PETITIONERS - 9 II. ISSUES PRESENTED A. Whether the City lacks the authority to restrict the legal use of the Property and/or define the scope of the valid nonconforming use of the Property where it is undisputed that the non - conforming use was not abandoned or terminated for purposes of TMC 18.70.040(3). B. Whether the Hearing Examiner erred in concluding that the use classification for the LDR portion is "parking" of semi- trailers where no such classification exists in the Tukwila zoning code, and the LDR portion is part of the larger "truck terminal" use. III. STANDARD OF REVIEW All of the issues presented in this LUPA appeal are legal issues reviewed de novo by this Court. RCW 36.70C.130(1)(b); see Van Noy v. State Farm Automobile Ins. Co., 142 Wn.2d 784, 791, 16 P.3d 574 (2001) (summary judgment is reviewed de novo). IV. ARGUMENT The issue on which the property owner requested a code interpretation was whether the nonconforming use of the truck terminal had been abandoned by a period of nonuse. CR 55; Appendix B at 2.; see TMC 18.70040(3). Having conceded that the nonconforming use was not abandoned, the City should have stopped there. If the City had limited its decision to the issue on which a code interpretation was requested, the appeal to the Hearing Examiner and to this Court would have been unnecessary. Unable to establish that the truck terminal use had been abandoned, the City has attempted to restrict the use of the LDR portion of the Property to just "parking." The City's arguments are based on the erroneous assumption that the "truck terminal" use is limited to ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 the truck terminal building, and that the outdoor areas of the Property are merely "parking." By limiting the truck terminal use to the terminal building, the City seeks to restrict the use of the outdoor areas of the Property. The distinction between a "truck terminal" use and a truck terminal building is subtle but critical. A truck terminal is a dynamic land use requiring large amounts of flat outdoor space for the movement of trucks and freight. Contrary to the City's analysis, the entire Property — both the C/LI and LDR portions — is a "truck terminal" and may be used for any lawful purpose consistent with that use classification. A. The City had no authority to place specific restrictions on the future use of the Property where the Director was only asked to determine whether the use had been abandoned. The issue on which the Trust originally requested a code interpretation was chronological – whether or not the use of the terminal had been abandoned for a period of six months between April 2002 and January 2004. The nature or scope of the use of the LDR portion of the Property was not the issue. The Director was not asked to decide that issue. The Trust never agreed to have that issue determined in a formal code interpretation. Nevertheless, after resolving the termination issue in favor of the owner (Trust), the Director went beyond the scope of the requested interpretation. The Director erroneously concluded that the nonconforming use of the LDR portion of the Property was limited to "parking of semi - trucks and semi - trailers" and imposed that narrow definition on the future use of the Property. The Director also specified the level of use that must be maintained in order to preserve the nonconforming use. CR 25 -26; Appendix C at 5 -6. Because these rulings were made part of the Director's interpretation, the Trust had no choice but to appeal BRIEF OF PETITIONERS - 10 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 those rulings. On appeal to the Hearing Examiner, Wells explained that the only issue submitted to the Director was whether the nonconforming use had been abandoned, and that the Director had ruled in favor of Wells on that issue. Wells explained that nothing in TMC Chapter 18.70 gave the Director the authority to go beyond the issue presented by defining or restricting the scope of the existing nonconforming uses. CR 67 -68. Neither the City nor the Hearing Examiner disputed the basic legal proposition that the Director had no authority to place restrictions on the Property where that issue was not presented. Rather, the City made two arguments: • that the Director did not place "restrictions" on the use of the Property, and • that it was necessary define the non - conforming use before making a determination of whether that use had been abandoned. The Hearing Examiner accepted both arguments. CR 4; Appendix F at 4. Both arguments are erroneous. The City's first argument — that the Director did not place any restrictions on the Property — is circular. The City simply assumes that the Director's determination of the nature and scope was correct. Therefore, the City reasons, the Director did not "restrict" the nonconforming use; he merely defined it. In addition to being circular, this argument ignores the underlying issue. The Trust never requested a code interpretation to define the scope of the nonconforming use. 1 Before the Hearing Examiner, the City stretched this frivolous argument so far as to argue that Wells lacked standing to challenge the Director's interpretation. CR 103 -04. The Hearing Examiner rejected the City's standing argument. CR 2; Appendix F at 2. BRIEF OF PETITIONERS - 11 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104-2514 (206) 621.2104 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 Consequently, the Director has no authority to issue a formal code interpretation on that issue. The City's second argument — that it was necessary to define the non - conforming use before making a determination of whether that use had been abandoned — is simply wrong. Prior to the Director's decision, the City's position was that the Property was totally unused (abandoned) for a period of time. If true, any nonconforming use of the LDR portion of the Property would have been extinguished under TMC 18.70.040. On the other hand, if the Property was being used during that time, as Wells maintained, then the non - conforming use was not extinguished. Either way, it was not necessary to determine the precise nature or scope of the actual use of the LDR portion of the Property between April 2002 and January 2004. It was not necessary for the Director to go beyond the issue presented. It was not necessary for the Director to rule that the nonconforming use was limited to "parking of semi - trucks and semi - trailers." CR 25; Appendix C at 5. Nor was it necessary for the Director to specify conditions for maintaining the nonconforming use in the future. CR 26; Appendix C at 6. Whether one characterizes these rulings as "restrictions" or merely "definition," these rulings were not relevant to the issue presented. The Director had no authority to gratuitously rule on issues that the property owner did not submit for his consideration. The Court must vacate those portions of the Director's interpretation and the Hearing Examiner's Order that attempt to restrict the use of the Property and/or define the scope of the valid nonconforming use of the property. Such restrictions are beyond the scope of the requested code interpretation, which was directed at the question of whether the non- BRIEF OF PETITIONERS - 12 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104-2514 (206) 621 -2104 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 conforming use was abandoned or terminated. An order vacating those provisions makes it unnecessary for the Court to address the remaining issues in this case. B. The LDR portion of the Property is part of the larger "truck terminal" use. The City's argument is entirely based on the erroneous assumption that the "truck terminal" use classification is limited to the truck terminal building, and that the remainder of the Property is simply a "parking" area. The City fails to grasp that a truck terminal is a dynamic use that occurs both inside and outside of the building on the C/LI portion of the property. Contrary to the City's assumptions, the outdoor areas of the Property are not merely "parking" areas. Although not defined in the Tukwila code, a "truck terminal" is generally defined in zoning codes to include outdoor areas where trucks are stored, staged, moved and serviced, and where freight is stored or transferred. See CR 74. Even the dictionary definition of truck terminal suggested by the City includes outdoor areas such as "classifying yards" and "storage yards." CR 105. The outdoor areas of the Property are part of the truck terminal use. Those areas are used for many different trucking operations including, but not limited to, (i) moving and backing trucks and semi- trailers, (ii) loading freight from one trailer to another, (iii) staging trucks that are waiting for drivers, (iv) storing freight, trucks, trailers, and containers, (iv) washing trucks, (v) performing maintenance on trucks and trailers, (vi) moving tires from trailer to trailer, and (vii) warming up truck engines during the winter months. These activities would constitute a "truck terminal" even if there were no buildings on any portion of the Property. BRIEF OF PETITIONERS - 13 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 The Hearing Examiner upheld the City's determination that the LDR portion of the Property is only a parking area for the terminal building on the C /LI potion. That determination was based on two assumptions: • that the LDR portion has only been used for parking; and • that the applicable land use classification under the Tukwila zoning code is not "truck terminal" but "accessory parking." These assumptions are both legally and factually erroneous. 1. The undisputed facts show that the LDR portion was used for more than mere "parking." The City's argues that the LDR portion of the property has only been used for parking. Although the City repeatedly asserts that this is an undisputed fact, the City is simply wrong. As the Second Declaration of Rolan Becker states, the truck terminal includes both the terminal building and the large outdoor areas around the building. The outdoor areas of the truck terminal are not merely used for "parking." The outdoor areas are used for many different trucking operations including, but not limited to, (i) moving and backing trucks and semi - trailers, (ii) loading freight from one trailer to another, (iii) staging trucks that are waiting for drivers, (iv) storing freight, trucks, trailers, and containers, (iv) washing trucks, (v) performing maintenance on trucks and trailers, (vi) moving tires from trailer to trailer, and (vii) warming up truck engines in the during the winter months. CR 16 -17; Appendix D at 1 -2. 2 Furthermore, the City bears the burden of proofto show that a nonconforming use has been abandoned. Van Sant v. City of Everett, 69 Wn. App. 641, 648, 849 P.2d 1276 (1993). The City cannot meet that burden, and in fact, its Decision has already confirmed that the nonconforming use has not been abandoned. BRIEF OF PETITIONERS - 14 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 The City has no evidence to the contrary. The City's evidence consists of (i) aerial photos, (ii) a single photo taken by staff, and (iii) three short declarations from neighbors. None of this evidence contradicts Mr. Becker or proves that the activities described by Becker did not occur. The aerial photos and the ground photo taken by staff show only a few moments in time. See CR 168 -174. Photos do not show what may have happened on the property five minutes before or after the photo was taken. Photos can only prove the absence of permanent structures. But the factual issue in this case is the use of the outdoor areas, and photos shed no light on that issue. Nor do the City's declarations support the City. These declarations all state that the LDR portion was used for parking. But these declarations do not state that other activities did not occur. See CR 175 -78. In fact, one of the City's declarations contradicts the City, stating that the LDR portion has been used for washing trucks. CR 175. Lacking any competent evidence, the City asserts that Mr. Becker's affidavit is "self - serving." This assertion is neither evidence nor proper argument. Mr. Becker has greater personal knowledge of the underlying facts than any other witness, and he has no personal interest in the Property or the outcome of this case. The facts testified to by Mr. Becker must be taken as undisputed unless the City has admissible evidence to the contrary. The City's groundless attack on the credibility of Mr. Becker is a tacit admission that Mr. Becker's testimony is not contradicted by any witness or evidence. 3 The Hearing Examiner did not attempt to resolve the factual dispute. Instead, the Hearing Examiner observed that Mr. Becker's declaration "describes activities (e.g., moving and backing trucks and semi - trailers, staging trucks,) that by and large appear to be consistent with the Director's interpretation and categorization of the use." CR 5; Appendix F at 5. In any ROBIE G. RUSSELL BRIEF OF PETITIONERS - 15 ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104-2514 (206) 621 -2104 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 Contrary to the City's arguments, it is undisputed that the LDR portion was not merely used for parking. The LDR portion is a part of the larger truck terminal, and it has been used for all the various functions testified to by Mr. Becker. 2. The LDR portion is not a "parking" use or "accessory use." Under the City's zoning code, the Property is classified as a "truck terminal." Even if portions of the Property were only used to park semi - trailers, nothing in the zoning code permits the City to reclassify such portions as a use other than "truck terminal." The Tukwila zoning code does not recognize "parking of semi - trucks and semi -truck trailers" as a separate use classification!' The term "semi truck" is never used in the zoning code. The Hearing Examiner agreed with Wells that "the `parking of semi - trucks and semi -truck trailers' originally listed in the interpretation is not a use category found in the Code." CR 4; Appendix F at 4. Order at 4 (Exhibit A-4). The Director's interpretation clearly stated that the use applicable use classification for the entire Property was "truck terminal." 8. Becker Trucking would be classified within the City's Zoning Code as a Truck Terminal. Truck Terminals are a permitted use in the C/LI District. Truck Terminals are not a permitted use in the LDR District. However, the property was legally non - conforming and Becker Trucking was permitted to operate on the site zoned LDR. event, the Hearing Examiner's interpretation of the evidence is irrelevant. The Hearing Examiner did not make findings of fact, and this Court's review of the record is de novo. 4 There is a defined use classification for "Commercial Parking," but that use classification is not applicable to the Property. See TMC 18.06.613 (defining "Commercial Parking" as a commercial enterprise where hourly, daily or weekly parking fees are charged). BRIEF OF PETITIONERS - 16 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 CR 25; Appendix C at 5. But on appeal to the Hearing Examiner, the City revised its interpretation of the zoning code. City staff suggested that the use classification of the LDR portion of the Property was an "accessory use" (parking). CR 127. "Parking areas" are permitted as accessory uses in both the LDR and C/LI zones. See TMC 18.10.030; TMC 18.30.030. The Hearing Examiner agreed with the City that the use of the LDR portion of the Property was an accessory use for the C/LI portion. CR 4; Appendix F at 4. This was clear error. The City's new "accessory use" theory contradicts the plain language of the Tukwila zoning code:, which defines "accessory use" as follows: "Accessory use" means a use incidental and subordinate to the principal use and located on the same lot or in the same building as the principal use. (Emphasis added). TMC 18.06.870. The Property consists of nine (9) separate lots, only three of which are in the LDR zone. CR 167.. Any accessory use of the LDR lots must be incidental to a principal use on the same lot. TMC 18.06.870. Contrary to the City's tortured interpretation of its own code, the use classification of the LDR lots cannot be an accessory use related to other lots in a different zone. Contrary to the City's arguments, the only applicable land use classification under the Tukwila code is "Truck Terminal" use. That use includes both terminal buildings and outdoor trucking operations. The Hearing Examiner erred in holding otherwise. Consequently, the City's attempt to define and limit the LDR portion of the Property to "parking of semi - trucks and semi -truck trailers" has no basis in fact or law. Those provisions of the Decision must be vacated. BRIEF OF PETITIONERS - 17 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seanle, Washington 98104-2514 (206) 621 -2104 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 C. The Hearing Examiner's determination that the Stetson letter lacked probative value was erroneous. The August 19, 2005 letter from the City's code enforcement officer, Kathryn Stetson, concerning noise from the "truck terminal operation" was additional evidence that the City's narrow definition of "truck terminal" was wrong. The Hearing Examiner found that the letter lacked probative value because the letter did not refer to any specific portion of the Property. CR 2; Appendix F at 2. The Hearing failed to grasp why the letter was probative. The allegation of excessive noise and the precise location of such noise are not relevant. But the letter shows that the City's own staff understands what "truck terminal" means. The Stetson letter is only one of several items in the record which show that the City's definition is wrong, and thus, it is not necessary to rely on Ms. Stetson's use of the term "truck terminal" to supply a definition of that term. However, the Hearing Examiner's ruling that the letter was inadmissible was error. V. CONCLUSION For all these reasons, the Court should reverse the Hearing Examiner's decision, and vacate those portions of the Director's interpretation that restrict the use of the Property and/or define the scope of the valid nonconforming use of the Property. /1/ /// s This • issue is not diapositive. Wells assigns error to the Hearing Examiner's ruling to enable the Court to consider the letter in its de novo review of the Hearing Examiner's decision. ROBIE G. RUSSELL BRIEF OF PETITIONERS - 18 ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 RESPECTFULLY SUBMITTED this 30th day of January, 2006. BRIEF OF PETITIONERS -19 ROB R ► SELL WSBA No. 20579 Attorney for Petitioners RoBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104-2514 (206) 621.2104 09/10/2004 11:23 &VJICHAEL R. KENYON Ewa L.131sr:se SANDRA S. MM.ADowc .oFT SHELLEY M. KERSLAKE STKMIKN i>.. K1.1•41.; HEIDI L. Btt.ostus Mr. Roble Russell 315 Second Avenue Seattle, Washington 98104 Dear Mr. Russell: Enclosure 2066212104 LAW OFFICES KENYON DISEND, PLLC THE MUNICrPAL LAW FIRM 11 FRONT STREET Soum ItSAQUAH, WASHINGTON 98027-3820 (425) 392 7090 (206) 628 -9059 FAX (425) 392 -7071 August 27, 2004 Re: 12677 E. Marginal Way South, Tukwila, Washington \\ FSINSYSIAPPS1civ \tukwilo \Lettec\LTROO147 - Rttsatl - Business license dvnial.doc/M5/08/27/04 Enclosed please find thc notification of business license denial for the tenant on your client's property, issued by the City of Tukwila today. This case presents a unique circutrxstauce in that the business license applicant is not the owner of the property — thus, an. appeal of thc business: license denial does not address the underlying land use issue regarding the extinguishment of your client's non conforming use rights for the. property lislyd AbnVr.. If your client disagrees with the determination of the Department of Community Development that his non - conforming rights have been abandoned, I suggest the following process to conclusively resolve the issue: Within 14 days of receipt of this letter your client will file a letter with the City requesting a code interpretation, pursuant to TMC 18.96.020. Pursuant to the Code, the Director of DCD will render a decision on the land use issue and that issue is appealable to the hearing examiner pursuant to TMC 18.90.010. We believe that this approach puts, this issue in the proper procedural posture for conclusive resolution. If you have any questions, please do not hesitate to contact me at 425- 392 - 7090. Thank you. Very truly yours, K She - M. Kerslake W AS I G Appendix A rON (ATMs � ttacE 1993 i PAGE 01 IEEEIVgn 'SEP 1020 RoBTE G. RUSSELL XERAI A. BERL}LAND Mix'ttn A. ROSIAMI SIAANNO.t L. Geavu4 KEVIN KAY LACEr L. MARTIN PETER B. BECKWITH 02/08/2005 12:20 2066212104 r.inrq:44 in WauhiMQtan and who VIA FACSIMILE AND US MAIL (425) 392 -7071 (206) 433 -1.833 Shelley M Kerslake Kenyon Disend PLLC 11 Front Street South Issaquah, WA. 98027 -3820 Steve Lancaster Director of DCD City of Tukwila 6300 Southcenter Blvd., Ste. 100 Tukwila, WA 98188 -8548 Dear Ms Kerslake and Mr. Lancaster: ‘9810NODI 1 ukwpa 1r Sopismha+ 13.2004 LAW OFFICES PAGE 01 ROBIE G. RUSSELL ATTORNEY Al LAW 76 South Main Street Seattle, Washington 98104 -2514 1 (206) 621 -2 t04 (206) 621 -2102 September 13, 2004 Re: Thick Terminal —: 12677 East Mar k a1 Wav South. Tukwila, WA Rcq lest for Code Interpretation I have received Ms. Kerstake's letter dated August 27, 2004. ATPase note that my address is 76 South Main Street, not 315 Second Avenue South. As 1 indicated in my letter on Friday, 1 did not receive Ms. Kerslake's letter until September 10, 2004. We agree with your request that we put this matter at issue by requesting a code interpretation from the Director. This letter constitutes our formal request for a code interpretation on your assertion that the valid non-conforming use of the Becker property has been abandoned or terminated, However, we have a few additional concerns that need to be addressed, First, as you may know, we have an outstanding request for public records relating to this Appendix B - 1 Our Roforence No. 98I Woof 1 02/08/2005 12:20 2066212104 City of Tukwila September 13, 2004 Page 2 matter. We reasonably expected to be able to examine the records prior to having to take any action on this matter. Mr. Crittenden made his request on August 12, 2004. On August 1 the City indicated that the records would be ready by September 21s1. That did not happen, and the City is already arguably in violation of RCW Chapter 42.17. As of the date of this letter, Mr. Crittenden still has not received a substantive response to his request. We must insist that the City take no furthcl action on this matter, including issuing a code interpretation, until Mr. Crittenden's request for public records is fully resolved. Second, because it is undisputed that the property was used as a truck terminal prior to April 2002, the City has the burden to prove that such use was abandoned or discontinued. We have the right to submit information or argument for the Director's consideration, but we are not required to do so. However, we may submit additional inanimation and intend to do so in the near future. We also have the right to wait fbr the Director's decision and submit responsive information and argument to the hearing examiner. Third, pursuant to TMC 18.96.020 we request that the code interpretation he in writing and that an orderly retrievable record be kept. Fourth, having reviewed TMC Chapter 18.104 it appears that there are no further administrative appeals from a decision of the hearing examiner. Therefore, any decision of the hearing examiner would be appealable to superior court under LUPA (RCW Chap. 3b.70(:). Please confirm that this is your understanding as well. RCR/mj 19B10‘40111tukwile.itr Bept 1S. 20 Thank you for your continued cooperation. rr.: Edwin J. Becker William John Crittenden LAW OFFICES PAGE 02 Appendix B _ - 2 uti ctsi znno 14:2d 2066212104 JAN 28 '05 03:11PM TUKWILA DCD/PW BACKGROUND DIRECTOR'S FINDINGS LAW OFFICES PROPERTY .OWNER: Becker Family Revocable Living r Trust APPLICANT: Robbie Russell, Attorney for Becker family Revocable Living Trust DATE: January 28, 2005 ATTACHMENTS; MENTS; A: Photo ofee site taken in June of 2002 with Zoning Overlay B: Atrial photo ofthe site taken June of 1999 C: Aerial photo of the site taken October of 2000 D; Aerial photo ofthe site taken September of 2002 On September 14, 2004 the Department of Community Devclopmcnt.for the City of Tukwila received a request earn Robbie Russell that a formal Code Interpretation be issued by the Director of Community Development pursuant try TMC 18.96.020. The request for R Code Interpretation is for the property lor.,ated at 12677 East Marginal Way South, Tukwila, Washington. Mr. Russell has requested that the Code Interpretation address whether there are any non - conforming rights related to the subject property. 1, The property in question is located 61 12677 East Marginal Way South, 'Tukwila, King County, Washington. King County Parcel number 734 -0685. 2, The subject parcel was annexed into the City of Tukwila in 1959 as part of the Riverton Annexation. Prior to annexation the parcel was located in unincorporated King County and subject to King County's zoning regulations. 3. The property currently is roned barb Commercial/ Light Industrial (C1LI) and Low Density Residential (LDR) (Sec Attadhment A). The CU zoning is located on the eastern half of the property and the LDR zoning is located on the western side of the • proms. 4. Becker Trucking Incorporated (Becker Tucking) occupied the site until April 17, 2002 when the business was relocated to 6350 S. 143' 5t., Tukwila, Washington. S. Aerial photos of the site taken in June of 1999 and October of 2000 show the historical use of the property (Sec Attaeb sera B). The portion of 1'F,e property zoned PAGE 02 P. My of Tukwila Steven M. muItet, mayor Department ot`CommuntcyDevelopment Steve Ltn ster, Director 'NOTICE OF DECISION FILE NUMBER: L04 -426 , APPLICATION: Code Determination by the Director of Community Development SITE ADDRESS: 12677 East Margpai Way S 6300 Sauthccr ter Boulevard, Suits #I00 • TkWUa, Washington 98188 • Phone, 206-431-3670 • Fax: 3019- 4.31 -3665 Appendix C - 1 LAW OFFICES g1/'Ltwa= 14:23 2066212104 SAN 28 '05 03:11PM Tl1KWILA DCD/PW Notice of Decision Becker Property, L04 -026 LDR was used to park semi- trucks and semi -truck trailers In association vviththe active truck terminal on the CU portion of the property. 6. Aerial photos of the site, taken 1±,..lune and September of 2002 indicate that the site was not being used (Sec Attachments A and D) 7, Water records froze Water District 125 show a significant reduction in water use on the property from May 15, 2002 to. January 15, 2003. 8. Becker Trucking would be classified within the City's Zoning Code as a Truck Terminal. Truck Terminals are a permitted use in the C/LI Maria. Truck Terminals are not a permitted use In the LDR District However, the property was legally non - conforming and Becker Tru4 bg was permitted to operate on the lite zoned LDR. 9. TMC 18.70.040 (3) states, "Nally non-conforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year tittle period, whichever occurs first, any subsequent tree shall cant= to the regulations specified by this title for the district in which swell use is located". 1.0. On December 31, 2002, Becker Trucldng submitted a business license application to operate an unmanned tuck terminal at the property in question. This business license application was submitted to the City Clerk's Office eight months after Becker Trucking relocated their business operation to 6350 5.143` Street. Pees for business license applications are based upon the number of employees at the site, since the site at 12677 B. Marginal Way S would be unmanned, the City Clerk's Otf'rce did not require a the. 11. On March 3, 2003, the City of Tukwila sent a letter to Roland Becker of Becker Trucking seeking clarification on the use of the property during the time period between when Becker Tracing moved from the 12677 E. Marginal Way S to their new site at 6350 S. 143° Street. There was no response to this letter, 12. The City sent another letter to Rolan Becker on July 14, 2003. The City again noted the lapse in business license activity fbr the property and noted the proposed use, the proposed use, an "unmanned truck terminal" wag not what was grandfathcred for the property. Again, the City asked for any imformation that indicted that the property was used as a truck terminal after Becker Trucking moved from the site. Rolan Becker never responded to the letter. 13. On October 29, 2043, the City sent another letter to Rohn Becker seeking Information regarding the uue.of the property after Recker'Trueldng moved to S. 143 Street, Again, Rola3.n Becker did not respond to the City's letter. 14. On December 15, 2003, the City Clerk's Office denied the business lie +nee application for Becker Trucldng to operate an "uism armed trucking terminal" at 12671 East Marginal Way South. An appeal period was established and no appeal was filed with the City's Clerk's Oracle. 15. In April of 2004, the City received complaints from neighbors of excessive noise coming from the subject property. On ApdI 26, 2004, Brandon Mies, Assistant Planner and Kathy Stetson, Code Enforcement Officer visited the subject site and met with the operators of an apparent trucking operation. Mr. Miles asked to see a City of mikwlla business U ense and the operators could oat produce a Keens° from the City of Tukwila, but instead produced one issued from the City of Seattle. 16. A business license application was submitted by Edgnort and Son Trucking (Edgmon rand Son) LLC on Apn129, 2004. The description of the business listed on the application wU "lruckine" the application noted that Bdgnaon and son had been Appendix C - 2 PAGE 03 P.3 2 01/28/2005 14:23 2066212104 LAW OFFICES PAGE 04 JAN 28 '05 03:12PM TU4WILA DCD /PW P.4 Notice of Decision Becker Property, L04 -026 • operating at the site since January 1, 2004. The application also noted that Edgmon and Son did not have a 2003 business license ftum the City of Tukwila, 17. The Department of Community Development sent at letter to the applicant dated May 24, 2004 seeking clarification regarding the proposed use of the property, 18. O ;1 June 10, 2004. The Depuranvnt of Community Development sent a certified letter to both the applicant and the property owner Meeker Family Revocable Living Trust) regarding the business license application. The City noted that according to City records the non conforming use right for the property had expired. 'lie City asked for doeumentatim indicating that the non - conforming rights had not been abandoned and that such documents be provided to the City within 14 -days front the date of the letter. 19. A letter was submitted b the City by Robbie Russell dated July 19, 2004. The letter did not provide any documentation regarding the use of the property. 20. On August 2, 2004, Bob Edgmon, of Bdgmon and Son Trusting sent a fax to the City. The lax was a'Sratement of Trucking Use", According to Bob Edgmon this "Statement of Trucking Use" was delivered to him by Ed Becker. The Statement of Trucking Use provided dates that the property in question was used as trucking terminal. Pat Becker, President of Becker Transfer provided the following handwritten comment 1 parked a number of trailer along the west end of property, u well as other parts of the property (zte) ". The City never received the ariginul Statement of Trucking Use from the Edwin Becher. 21. On August 3, 2004, the City Attorney's Office responded to Mr. Russell's letter and again the City established a period to provide docttmcntaticn that would show that the City's time period for the property is incorrect. The requested docunnontatiorn was never provided. 22, On August 30, 2004, the City Clerk's Office deemed the business license application for Edgmon and Son True. dng. The buaincss lierasa denial was based on two main issues: 1) Business license records indicate a gap in use of the property as truck terminal fmm April 17, 2002 to January 1, 2004; 2) Faihrre ofthe property owners to provide documentation regarding the use of the property from April 17, 2002 to January 1, 2004. An appeal period was established and no appeal was filed. 23. On October 1, 2004, Bdgmen and Son Trucking relocated their trucking business to 2550 S. 102 °d Street. 24, A letter regtreeting a Coda Interpretation for the property was received by the City on September 14, 2004. The letter was front Robbie Russell, Attorney for Becker Living Trust. 25. On October 22, 2004, JackPace Deputy Director with the Department of Community Development sent a letter to Mr. Russell noting that according to the inlomhat ion available to the City it appeared that the non.ecu:fo ruing right for the property had expired. Mr. Pace gave Mr, Russell 14 -days to admit additional information for the City to review If they wished to rebut this information. No additional information was submitted to the City within the 14 period established by Mr. Pace's letter. 26. On December 1, 2004, additional information was submitted to the City from Robbie Russell. The following items were submitted; A. A Declaration from Clayton M. Betz who Is the accountant for Becker Living Trust, The Declaration notes that Edwin J. Becker purchased the site in 1974 for the purpose of developing and operating a truck terminal. The Declaration motes th&. Pea= Trucking had leased the she fraTtl.April 1, Appendix C - 3 3 e,i i zest znnn 14:2:1 2066212104 LAW OFFICES PAGE 05 JAN 29 '05 03:U2PM TUKWILA DCD'PW P .5 Notice of Decision Becker Property, L04-026 1997 through October of 2002, It was also noted that Becker Tunes also used the tcnninal for the transfer owl storage of freight and equiptneiit from October 01'2002 through January of 2003, It was Ember noted that Edgmon and Son Truckng leased the property starting on Jarntsry 23, 2003 and that Edgmon and Son took possession c+f the site on February 1, 2003. (As previously noted, Edgmon and Son operated a Tracidng Operation). B. Excerpts of a contract between Edwin J. Becker and Rolan Becker. A complete contract was not provided and only Edwin J. Becker had signed the contract. C. Exeotpts of a contract between F_dgm= and Son Trucking and Edwin J. Becker. 27. On December 2, 2004, Jack Pane Deputy Director of Comrruuaity Development sent a letter requesting that the complete, signed contract between Edwin Becker and Becker Trucking be provided to the City. 28. On December 13;2004, Jack Pace Deputy Director of Community Develop ment faxed and mailed (certified and regular) another letter requesting that the complete signed contract between Edwin Becker and Backer Rucking be provided to the City. 29, On December 23, 2004, the City received the complete signed contract between Fidwin Becker and Becker Trucldng. 30. On December 23, 2004, A Declaration from Bolan Becker was also provided to the City. The Declaration noted that Becker Trucking had used the property in question through January of 2003 until the site was leased to Edgmon and Son Trucking, RLolan Eecker's Declaration also noted the following, "The nature of our operations at the Marginal Way Terminal during the transition period involved all aspects of freight terminal operations including dispatching, loading, and unloading of freight, use of the dock and warehouse for freight storage and trorecr, parking, and storage of trailers and rolling stock, and other uses associated with truck terminal operations." 31. On January 21, 2005 a Declaration from Patrick Becker was submitted to the City. The Declaration noted that Patrick Becker operated Becker Trhsfer Company at the talc from October of 2002 through January of 2003. DIRECTOR'S DETERMINATION ilistoticei Use Based on information available to the City, the LDR portion of the property was used to park norm truccks and semi - truck trailers. The LDR portion of the property was not used in a trunk terminal and was limited to only tha parlcing of semi - trucks and semi -truck Wars. This area of property was used is conjunction with the main building one= property, which is zoned Wlrcn the City annexed this area in 1989 and later adopted its caerent zoning regulations, a portion of the property was zoned LDR. Since the f.DFR portion of the property was historically used to park semi•txucks and semi-truck trailers It was vested non- conforming and the LDR portion of the property was allowed to be used for semi truck and semi truck trailer parldng. Appendix C - 4 nli28/At105 14:23 2066212104 JAN 28 '05 03113PM TUKWILA DCD/PW LAW OFFICES Notice of Decision Becker Property, L04.026 Nct City rmoor& clearly show that Becker Trucking relocated their business to S. 143' Street in April of 2002 (Finding 4). Becker Trucking and Becker Transfer submitted business license applications to operate ante property in question, However, neither of the applicant* responded to repeated requests by the City to provide additional information regarding the use of the property. Based upon the Declarations provided to the City by Mr. Bissell, it has become apparent that Becker Trucking and Becker Transfer were operating at the site without a business license. Additionally, according to the Declarations provided by Mr. Russell, Edgmon and Sort Trucldng also oporared a witness in violation of City Code at the site by tailing to obtain a business license from the City of Tukwila. In fact Upton and Son Trucking only submitted for the license after City employees discovered they were operating at the site (Finding 16). As part of the review of the Edgmon and Son business license application, the City requested that information be provided regarding the non - conforming status of the property, The requested information was never submitted to the City. he City denied the business license application on August 30. 2004; 81 days after the City requested that the property owner produce documents regarding the nonrconforming rights for the property. While Becker Trucking, Becker Transfer, and Edgmon sad Son Trucking were operating at the site without a business License, based upon the Den lsrations provided to the City, the signed contract between Edwin 1 Becker and Becker Tracking xcldng Incorporated it is established that they were in fact operating a truck terminal on the CfLI portion of the site and were using the I,DR portion for the parkring of semi -truth and send -truck trailers and thus the aoa- conforming rights for the LDR portion of the property have not been abandoned. Any fixture rises of the LDR portion of the property must either be allowed in the underlying zoning or be permitted as a non - conforming right. The non - conforming rights are as follows: Parking of see ti- trnelts and semPtruck trailers In association with the use of the building as a track terminal. The non- conforming rights for the property must be used in a manner consistent with 1MC 18.70.040 (3). TMC 18.70.040 (3) notes, "If Any non- conforming use reeler, for m>y reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, whichever occurs fist, any subsequent use shall conform to the regulations specified by this title for the district in which such use b located'. It should be noted then, according to Edgmon and Son Trucking they vacated the property on October 1, 2004. Thus, the six -month period began on October 2, 2044. Appendix C - 5 PAGE 06 P.6 5 oilzufznno 14:23 2066212104 PAGE 07 JAN 28 '05 03:12PM TUKWILA DCD/PW P.7 Notice of Decision Becky Property, 1.04 -026 Please note that merely parldng a semi -truck or semi-truck nailer on the proparty will not preserve the non cOrtfonning right The Ia3R portion of the property must be used in conjunction with the building on the property. APPEALS This Code Interpretation by the Director may be appealed to the Hearing Examiner. The appeal shall be a Type Two decision and shall be processed pursuant to TMC 18.108,020 and TMC 18,116. All appeals shall be filed with the Department within 14-days from the date of this letter. The Notice cf Appeal mitt include the following (TMC 18.116,030): 1. The name of the appealing party. 2. The address and phone number of the appealing party; and 1 tic appalling patty is a the association or other group, lie address and phone number of a contact parson authorized to receive notices on the appealing party's behalf. A statement identifying the decision being appealed and the alleged errors in that decision. The Notice of Appeal shall stale specific errors of acct or errors in application ofthe decision being appealed; the harm suffered or anticipated by the appellant; and the relief south. The scope of the appeal shall be limited to matters or issues raised in the Notice of Appeal. LAW OFFICES Appendix C - 6 4 „,„,„ .; 6 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 In re CODE INTERPRETATION by the CITY OF TUKWILA, DIRECTOR OF COMMUNITY DEVELOPMENT for Property Located at 12677 EAST MARGINAL WAY SOUTH TUKWILA, WASHINGTON SECOND DECLARATION OF ROLAN BECKER RE: USE OF TRUCK TERMINAL -1 BEFORE THE HEARING EXAMINER OF THE CITY OF TUKWILA Appendix D - 1 NO. L04 -026 SECOND DECLARATION OF ROLAN BECKER RE: USE OF TRUCK TERMINAL ROLAN BECKER hereby declares as follows: 1. I am over the age of 18 years, competent to testify, and .1 have personal knowledge of the facts stated herein. 2. The Property located at 12677 East Marginal Way South Tukwila, WA, has been used as a truck terminal for many years. 3. The truck terminal includes both a building and large outdoor areas around the building. The outdoor areas of the truck terminal are not merely used for "parking." 4. The outdoor areas are used for many different trucking operations including, but not limited to, (i) moving and backing trucks and semi- trailers, (ii) loading freight from one trail er to another, (iii) staging trucks that are waiting for drivers, (iv) storing freight, trucks, • ROele G. RUSSELL ATTORNEY AT LAW 76 Sank Main Stud Seattle, Washington 92104.8S14 006)621 -2104 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 2 3 4 5 6 7 8 9 10 11 12 trailers, and containers, (iv) washing trucks, (v) performing maintenance on trucks and trailers, (vi) warning up truck engines during the winter months, and (vii) many other uses commonly associated with truck terminals. Signed this / / of August, 2005, at Seattle, King County, Washington. At SECOND DECLARATION OF ROLAN BECKER RE: USE OF TRUCK TERMINAL - 2 ROLAN BECKER Appendix D - 2 Roa1E O. RUSSELL ATTORNEYATLAW '6 Sarah M.tn aired S.atd.. Wa.hinsmn 9iI042SI4 Cm6) 621.2101 08/23/05 TUE 09;14 FAX 2067625268 CannonFax 10 39Cd ugust 19, 2405 Christie Wells, Owner Wells Trucking & /dewing, lue. 12677 East 1ldarginal Way S Tukwila, WA 98165 Dear Ms. Wells: Sincerely, City of Takvvila bepartmertt of Commitniy Development We l,uvc teedived owing complaints from neighboring residences concerning excessive noise coming from your truck terminal operation. In Jug 2005, several of the neighbors hid a noise consultant to conduct a noise study. The conclusion reached allows that sound levels associated with activity from the trucking activity at Wells exceed perraissib1e maximum sound levels as outlined by Tukwila Municipal Code (8.22). 1 bave enclosed a copy of this report for your review. Tha purpose of this letter is to request a meeting with you to discuss measures you can take to eliminate this code violation. We would like to schedule this meeting within the next few weeks (before September g if possible). Please let me know some dates and times that you would be available, so that I can coordinate my schedule as well as that of the Deputy Director of the Department of Community Development and the City Attorney. I appreciate your prompt response. I can be reached at 206/431 -3682 Of via snail at kkste2ion@ei.tukwj1R.wa.us. Kccvo Q. ) Kathryn A. Stetson Code Enforcement Officer • Cc: Jack Pace Shelley Kerslake Lacey Madche enclosure &as r,i o01 Steven M Mullet, Mayor Steve Lancaster, Director 6300 SoUthoenter Boulevard, Suite 100 • TU ipF 1 1 tt5q E88 • Phone: 206-431.3670 • Fax: 206- 431 -3665 S30Iid0 MUU1 , 001ZIZ990Z 80 :II S00Z /EZ /80 In the Matter of the Appeal of C &D WELLS, LLC dba Wells Trucking and Leasing BEFORE THE HEARING EXAMINER FOR THE CITY OF TUKWILA from a Code Interpretation by the Director of the Department of Community Development, concerning property addressed as 12677 East Marginal Way South Introduction Appendix F - 1 File Number: L- 04-026 Order on City's Motion for Summary Judgment and Appellant's Motion to Substitute and Cross - Motion for Summary Judgment 1. This appeal is from a Director's Code Interpretation, issued on January 28, 2005, and amended by a July 12, 2005 staff report, concerning property addressed as 12677 East Marginal Way. The previous property owner, Becker Family Revocable Living Trust, had requested a code interpretation pursuant to TMC 18.96.020. Part of the property at this address is zoned Lowrise Residential (LDR), and part of it is zoned Commercial/Light Industrial (C/LI). The City moved for summary judgment on the grounds that: (1) the appellant lacked standing because the party filing the appeal, the Becker Family Revocable Living Trust, did not own the property and was not a real party in interest; and (2) the appellant had not asserted or demonstrated any harm suffered, as required by TMC 18.116.030; and (3) as a matter of law, the City's interpretation was correct and should be affirmed. The appellant filed a response and cross - motion for summary judgment, and requested that certain portions of the interpretation be vacated. Oral argument was heard by the undersigned Hearing Examiner on August 30, 2005. Represented at the oral argument were the appellant, C & D Wells, LLC, by William J. Crittenden, attorney at law; and the City, Department of Community Development, by Shelley Kerslake, City Attorney. The appellant was also represented in this matter by Robie Russell, attorney at law. 2. The following materials were submitted by the parties and considered by the undersigned on these motions: a. City's Motion for Summary Judgment and attached Exhibits 1, 2, 3 and 4 b. Appellant's Motion for Continuance/Motion for Briefing Schedule and attachments L04 -026 Order Page 2 of 6 c. City's response to Appellant's motion for continuance d. Appellant's Response to Motion for Summary Judgment and Appellant's Cross - motion for Summary Judgment with Appendix A and B e. Declaration of Robie Russell and attached Exhibits A through G. f. Second Declaration of Rolan Becker g. Property Owner's Reply on Cross Motion for Summary Judgment 3. At oral argument, the appellant offered a copy of a letter dated August 19, 2005, from Kathryn A. Stetson, City Code Enforcement Officer, to Christie Wells, Wells Trucking & Leasing, Inc., as being a statement against the City's position. The City objected to its admission. The letter refers to "excessive noise from your truck terminal operation." The letter did not refer to any specific area of the property and does not indicate what, if any, authority Ms. Stetson would have with regard to making a Director's interpretation. The letter was not admitted because of its lack of probative value. 4. As a preliminary matter, the appellant argued that the City's rules should not be interpreted to allow the City to move for summary judgment in an appeal proceeding of this nature. Although the Rules and the Code do not specifically provide for summary judgment, it is consistent with the authority provided the Hearing Examiner by the Code and Rules, which grant the Examiner the authority to rule on dispositive motions. Tukwila Hearing Examiner Rule 1.02(b) also provides that the Examiner may look to the current Civil Rules of Superior Court for guidance in determining practice or procedure. The Hearing Examiner may rule on a motion for summary judgment. 5. Subsequent to the City's motion, the appellant moved to substitute C &D Wells, LLC, the current property owner, as the appellant. The City did not object, and withdrew its argument that the appellant was not a party in interest. The appellant's motion to substitute is therefore granted. 6. The City's related argument was that the appellant lacked standing because the appellant has not demonstrated injury or harm, in accordance with TMC 18.90.010 and 18.116.030. The City contends that the code interpretation does not prejudice nor is it likely to prejudice the appellant, and does not place restrictions on the property. As noted below, the Examiner agrees with the City that the Director's interpretation does not place restrictions on the use of the property. However, viewing the facts in the light most favorable to the appellant, it cannot be concluded as matter of law that the appellant is not aggrieved within the meaning of TMC 18.90.010 or that the appeal statements fail to state harm suffered. The remainder of this order considers the other issues raised by the City and the appellant in their respective motions for summary judgment. Appendix F - 2 Issues 7. The following issues are presented in these motions: Analysis L04 -026 Order Page 3 of 6 Whether the appeal should be dismissed because the appellant has not asserted or demonstrated any harm suffered under TMC 18.116.030(3) Whether the Director's interpretation should be affirmed as a matter of law. Whether the interpretation should vacated in part, because: (a) the City had no authority to place specific restrictions on the future use of the property; or (b) the LDR- portion of the property should have been considered to be in truck terminal use. 8. Summary judgment (or at the administrative level, summary disposition) is proper when the pleadings and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. City of Lakewood v. Pierce County, 144 Wn.2d 118, 125, 30 P.2d 446 (2001). A material fact is one affecting the outcome of litigation. Anica V. Wal -Mart Stores, Inc., 120 Wn.App.481, 487, 84 P.3d 1213 (2004). In reviewing a motion for summary judgment, the Examiner must consider the facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Id. But the nonmoving party must set forth specific facts to defeat a motion for summary judgment, rather than relying on bare allegations. Id. at 487 - 88. 9. Under TMC 18.06.560, a nonconforming use is "the use of land which does not conform to the use regulations of the district in which the use exists." TMC 18.70.040 provides that "Any preexisting lawful use of land made nonconforming under the terms of this title may be continued as a nonconforming use" but may not be "enlarged, increased or extended" A legally nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. Rhod -A -Zalea v. Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 (1998). A protected nonconforming status generally grants the right to continue the existing use but will not grant the right to significantly change, alter, extend, or enlarge the existing use; local governments are free to preserve, limit or terminate nonconforming uses subject only to the broad limits of applicable enabling acts and the constitution. Id. at 7 (citations omitted). 10. It is not disputed that the operation of a truck terminal is an outright permitted use in the C/LI zone, and would not be nonconforming under the Code. Thus, the issue of nonconforming status applies only to the alleged truck terminal use or accessory parking for that use on the LDR -zoned portion of the site in this case. The use on the LDR -zoned Appendix F - 3 L04 -026 Order Page 4 of 6 portion of' the property would be legally nonconforming if it were legally established at the time of annexation, when the City's zoning code became applicable to the property. 11. The appellant argues that the Director's interpretation exceeded the scope of the question presented to him, i.e., whether the nonconforming use had ceased for six months so as to be abandoned. However, in order to determine whether a nonconforming use at the LDR -zoned portion of the site had been abandoned, the Director had to determine which nonconforming use had been established. Thus, the Director had to determine what use or category of uses had been established on the LDR -zoned property at the time of annexation, and whether that use had continued (with no break of six months or more) after annexation. It would be unreasonable for the Director to confirm the continued existence of a nonconforming use without determining what that use was. In this case, the Director determined that the use was parking that was accessory to the use of the building on the C/LI zoned portion of the property. 12. The appellant argues that the Director was without authority to place "restrictions" on the future use of the property, and that the Director was only authorized to address whether the nonconforming use had ceased for a period of six months or longer. No Code provision has been cited that supports this argument, although the appellant cites Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002). 13. The Director's interpretation did not place restrictions on the property. The Director's interpretation (as amended by. the July 12, 2005 staff report) identified the use that the Director had determined to be the legally nonconforming use at the LDR site. As noted above, the identification of that use was necessary in order for the Director to determine whether the use had been abandoned. The interpretation . does not contain conditions (e.g., specifying hours of operations,' air quality control measures, etc.), does not on its face purport to be a permit or an enforcement order, and no Code provisions have been cited that identify the Director's interpretation as a permit, enforcement order, or other action that restricts use of the property. 14. In Nykreim, the court determined that the Land Use Petition Act applied to both ministerial and quasi-judicial land use decisions, and that Chelan County was therefore time - barred by LUPA from challenging a boundary line adjustment decision issued by the County Planning Department. The appellant argues that the interpretation controls what is permitted at the site in the future, that the matter is not ripe for such a determination, and therefore the Director is not authorized to make such a determination. But to the extent Nykreim applies to a Director's code interpretation, it does not apply to this case, where the interpretation placed no restrictions on the property but instead confirmed the legally existing nonconforming use at the site. 15. The appeal also argues that the nonconforming use at the LDR -zoned site is a truck terminal, not parking. In this regard, the appellant correctly notes that "parking of semi- trucks and semi -truck trailers" originally listed in the interpretation is not a use category found in the Code. However, this phrase was amended by the City in its July Appendix F - 4 L04 -026 Order Page 5 of 6 12, 2005 staff report, which clarifies that the use at issue is categorized as parking accessory to the building on the C/LI portion of the property. This description is consistent with the list of accessory uses found in TMC 18.10.030, and the Director's interpretation is not in error for failing to identify a use that is included in the Code. 16. The appellant also argues that the City has wrongly classified the LDR -zoned site as a different use from the C /LI site, because both sites, according to the appellant, have been operated as a truck terminal. Further, the appellant argues that the zoning line is an "imaginary" line that should not be considered in determining the use at the site. The appellant cites City of University Place v. McGuire, 144 Wn.2d 640, 30 P.3d 453 (2001) for the proposition that the truck terminal's fluctuating use of various portions of the site at various times requires that the entire property be deemed in "truck terminal use." But the University Place decision turned on the application of the diminishing asset doctrine. The court applied that doctrine to the mining operations in question, noting that the "proper scope of a lawful nonconforming use in an exhaustible resource is the whole parcel of land owned and intended to be used;" 144 Wn.2d at 751 (emphasis added). No exhaustible resource is present in this case, and University Place does not compel the outcome urged by the appellant. Further, the zoning designation on the property cannot be disregarded by the City as "imaginary," because it is only the use of the LDR -zoned property that is nonconforming and therefore the subject of the interpretation. 17. The Code does not define "truck terminal" but the City cites the dictionary definition of "truck terminal ": "either end of a carrier line with classifying yards, docks and lighterage facilities, management offices, storage yards and freight and passenger stations." (Websters Third International Dictionary). The City correctly points out that the historical records, which are not disputed, do not show such activities at the site at the time of annexation, but instead show parking of vehicles associated with the truck terminal activities occurring on the C/LI portion of the property. The appellant has submitted definitions from out -of -state codes in support of its argument that the parking area should also be defined as "truck terminal." But the use of such definitions is not supported by any cited rules of statutory construction. 18. It should be noted that the appellant also submitted a declaration of Rolan Becker that describes the use of the "outdoor areas" of the property, but the declaration does not dispute the salient facts. The declaration does not identify a specific time period, i.e., that the described activities were occurring at the time of annexation, or that the activities occurred in the LDR -zoned "outdoor area" of the property. Further, the declaration describes activities (e.g., moving and backing trucks and semi - trailers, staging trucks,) that by and large appear to be consistent with the Director's interpretation and categorization of the use. The material facts as to the use of the LDR -zoned property at the time of annexation are undisputed and show that the Director's interpretation was correct. Appendix F - 5 L04 -026 Order Page 6 of 6 Conclusion 19. The undisputed facts in this matter show that the Director's interpretation was correct. At the time the subject property was designated LDR, that property was used for parking accessory to the use occurring on the C/LI property. The Director also had authority to issue this interpretation, and as a matter of law, the interpretation should be affirmed. Order The City's Motion for Summary Judgment is hereby granted. The appellant's cross - motion for summary judgment is denied. The Director's interpretation is hereby AFFIRMED. Entered this 8th day of September, 2005. Appendix F - 6 Anne Watanabe Hearing Examiner Pro Tem City of Tukwila 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 C & D WELLS, LLC, a Washington limited liability company, and WELLS TRUCKING & LEASING, INC., a Washington corporation, Petitioners, v. CITY OF TUKWILA, Respondent. c : for, cA, -- t cIA SUPERIOR COURT OF WASHINGTON FOR KING COUNTY NO. SUMMONS {20 Day} RECEIVED SEP 292005✓ ,3 CITY OF TUKWI 1\ WoRi E D SEP 2 9 2005 COMMUNITY DEVELOPMENT TO THE RESPONDENT: A lawsuit has been commenced against you in the above - entitled Court by C & D Wells, LLC, and Wells Trucking & Leasing, Inc., petitioners. Petitioners' claim is stated in the written Land Use Petition, a copy of which is served upon you with this Summons. In order to defend against this lawsuit, you must respond to the Land Use Petition by stating your defense in writing, and serve a copy upon the undersigned attorney for the Petitioners within twenty (20) days after the service of this Summons, excluding the day of service, or a default judgment may be entered against you without notice. A default judgment is one where Petitioners are entitled to what they ask for because you have not responded. If you serve a Notice of Appearance on the undersigned attorney, you are entitled to notice before a default judgment may be entered. SUMMONS - 1 ROBLE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle. Washington 98104 -2514 (206) 621-2104 23 24 25 26 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 You may demand that the Petitioners file this lawsuit with the court. If you do so, the demand must be in writing and must be served upon the Petitioners. Within 14 days after you serve the demand, the Petitioners must file this lawsuit with the court or the service on you of this Summons and Land Use Petition will be void. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time. This summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State of Washington. DATED this . 2 , 9 day of September, 2005. ROBIE G. ' . SSELL SUMMONS - 2 WSBA No. 20579 Attorney for Petitioners ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle. Washington 98104 (206) 621 -2104 a. 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 C & D WELLS, LLC, a Washington limited liability company, and WELLS TRUCKING & LEASING, INC., a Washington corporation, Petitioners, v. CITY OF TUKWILA, Respondent. SUPERIOR COURT OF WASHINGTON FOR KING COUNTY Petitioners C & D Wells, LLC, and Wells Trucking & Leasing, Inc. ( "Wells "), by and through their attorney of record, Robie G. Russell, hereby set forth their allegations in this Land Use Petition. Petitioners seek review of a final decision of the Hearing Examiner for the City of Tukwila in case number L -04 -026 ( "Decision "). A true and correct copy of the Decision is attached hereto as Exhibit A. I. PARTIES 1.1 Petitioner C & D Wells, LLC is the owner of the property located at 12677 East Marginal Way South, Tukwila, King County, Washington (hereafter "Property "). 1.2 Petitioner Wells Trucking & Leasing, Inc. is the current occupant of the Property, and currently uses the Property as a truck terminal. LAND USE PETITION (RCW 36.70C) - 1 C ip CA, Dry, VIICJA NO. By SEP 3 0 2005 LAND USE PETITION (RCW 36.70C) ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621-2104 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 1.3 Petitioners are the successors in interest to the party that originally sought the code interpretation that was appealed to the Hearing Examiner, and became parties to the proceedings before the Hearing Examiner upon a motion to substitute for the previous owner of the property at issue. The mailing address for petitioners is: Robie G. Russell Attorney at Law 76 South Main Street Seattle, Washington 98104 -2514 1.4 Petitioners' attorney is Robie G. Russell, Attorney at Law, 76 South Main Street, Seattle, Washington 98104 -2514. 1.5 The local jurisdiction whose land use decision is at issue is the City of Tukwila, 6300 Southcenter Blvd, Suite 100, Tukwila, Washington, 98188. II. IDENTITY OF DECISION - MAKING BODY 2.1 The decision making body is the Hearing Examiner for the City of Tukwila. III. JURISDICTION AND STANDING 3.1 This Court has jurisdiction to review the decision of the Hearing Examiner under the Land Use Petition Act, RCW 36.70C.030 ( "LUPA "). 3.2 Petitioners have standing to seek judicial review because they are the owners and occupants of the Property at issue, are parties that would have benefited from a favorable decision of the Hearing Examiner, and were parties to the proceeding before the Hearing Examiner that is the subject of this action. nr. EXHAUSTION OF ADMINISTRATIVE REMEDIES 4.1 Petitioners have exhausted all administrative remedies. There are no further administrative appeals from the final decision of the Hearing Examiner. LAND USE PETITION (RCW 36.70C) - 2 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104.2514 (206) 621-2104 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 LAND USE PETITION (RCW 36.70C) - 3 V. STATEMENT OF FACTS 5.1 On or about September 13, 2004, the previous owner of the Property requested a code interpretation for the Property on the issue of whether the valid nonconforming use of the Property as a Truck Terminal had been abandoned or terminated. 5.2 On or about January 28, 2005, the City issued a code interpretation which correctly concluded that the nonconforming use had not been abandoned. 5.3 However, the code interpretation also included numerous irrelevant and /erroneous findings of fact and conclusions of law. The City's code interpretation also attempted to place restrictions on the use of the Property beyond the scope of the requested code interpretation. 5.4 The assertion in the code interpretation that a certain "LDR" portion of the Property "was not used as a truck terminal and was limited only to the parking of semi - trucks and semi -truck trailers" was neither factually accurate nor legally relevant. The City's attempt to distinguish between the parking of trucks and truck terminal operations had no basis under the either the Tukwila Municipal Code ( "TMC ") or the general law of zoning and non - conforming uses. The LDR portion of the Property is part of the larger truck terminal and is a valid nonconforming use as a truck terminal. 5.5 On or about February 9, 2005, the previous owner of the Property timely appealed to the Hearing Examiner. The City did not appeal the code interpretation. 5.6 After considering the parties' written submissions and the arguments of counsel the Hearing Examiner issued the Decision on or about September 8, 2005. The Decision affirmed the code interpretation issued by the City. ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621.2104 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 5.7 This LUPA action followed. VI. ASSIGNMENTS OF ERROR 6.1 The Decision, specifically including but not limited to paragraph 3, is erroneous as a matter of law to the extent that the Hearing Examiner declined to admit the letter dated August 19, 2005 into evidence. The letter is relevant because it shows that the City understands that the term "truck terminal" includes outdoor areas of the Property. 6.2 The Hearing Examiner's procedural rulings in paragraphs 4 and 8 of the Decision are erroneous as a matter of law but such errors are likely to be harmless. Petitioners reserve the right to assert that such errors are not harmless if necessary to respond to any arguments by the respondent that such rulings limit the petitioners' ability to raise any issue of fact or law in this proceeding. 6.3 The Decision, specifically including but not limited to paragraph 11, is erroneous as a matter of law. Nothing in the TMC requires the City to precisely define and limit a nonconforming use, or to place restrictions on such use, in order to determine whether an existing nonconforming use has been abandoned or terminated. 6.4 The Decision, specifically including but not limited to paragraphs 12 -14, is erroneous as a matter of law to the extent it concludes that the City had authority to place restrictions on the Property in a code interpretation proceeding in which the only issue was whether the nonconforming use had been abandoned or terminated. Neither the City nor the Hearing Examiner have cited any code provision that gives the City such authority except to assert that no restrictions were placed on the Property. LAND USE PETITION (RCW 36.70C) - 4 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621-2104 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 6.5 The Decision, specifically including but not limited to paragraph 15, is erroneous as a matter of law to the extent it concludes that the existing nonconforming use of the LDR portion of the Property is not a "truck terminal" but merely "parking accessory to" the terminal building on the other portion of the Property. 6.6 The Decision, specifically including but not limited to paragraphs 16 -17, is erroneous as a matter of law to the extent it concludes that the land use classification "truck terminal" does not include outdoor truck terminal operations. Even though every proposed definition of "truck terminal" submitted to the Hearing Examiner confirms that truck terminals include outdoor areas and operations, the City and the Hearing Examiner erroneously concluded that only the building constitutes a "truck terminal." 6.7 The Decision, specifically including but not limited to paragraphs 16 -17, is erroneous as a matter of law and /or is not supported by evidence that is substantial when viewed in light of the whole record before the court and /or is a clearly erroneous application of the law to the facts to the extent it finds or concludes that the outdoor areas of the LDR portion of the Property are not part of the larger "truck terminal" use and /or may be separately classified as an "accessory" use, "parking" use or some other use. 6.8 The Decision, specifically including but not limited to paragraph 18, is erroneous as a matter of law and/or is not supported by evidence that is substantial when viewed in Light of the whole record before the court and /or is a clearly erroneous application of the law to the facts to the extent it holds that the "undisputed facts" show that the City's interpretation is correct. The materials submitted by the petitioner clearly show that the outdoor areas of the LDR portion of the Property are part of the "truck terminal" use and LAND USE PETITION (RCW 36.70C) - 5 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2104 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 have not been used only for "parking." The City submitted absolutely no evidence, admissible or otherwise, to contradict the testimony of Rolan Becker as to the variety of outdoor truck terminal uses of the LDR portion of the Property. The fact that the City's evidence shows that the LDR Portion was used for parking does not create any issue of fact as to whether, as testified to by Becker, the LDR Portion was put to other truck terminal uses as well. 6.9 The Decision, specifically including but not limited to paragraph 19 and the "Order" affirming the City's code interpretation, is erroneous as a matter of law and/or is not supported by evidence that is substantial when viewed in light of the whole record before the court and/or is a clearly erroneous application of the law to the facts for the reasons set forth in the assignments of error above. VII. REQUEST FOR RELIEF 7.1 Petitioners request that the Court reverse the decision of the Hearing Examiner and remand this matter to the City with directions to vacate those portions of the code interpretation that attempt to restrict the use of the Property and/or define the scope of the valid nonconforming use of the property. DATED this ' day of September, 2005. LAND USE PETITION (RCW 36.70C) - 6 ROBIE G. RUSSELL Z�. WSB • No. 20579 Attorney for Petitioners ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621.2104 In the Matter of the Appeal of C &D WELLS, LLC dba Wells Trucking and Leasing BEFORE THE HEARING EXAMINER FOR THE CITY OF TUKWILA from a Code Interpretation by the Director of the Department of Community Development, concerning property addressed as 12677 East Marginal Way South File Number: L -04 -026 Order on City's Motion for Summary Judgment and Appellant's Motion to Substitute and Cross - Motion for Summary Judgment Introduction 1. This appeal is from a Director's Code Interpretation, issued on January 28, 2005, and amended by a July 12, 2005 staff report, concerning property addressed as 12677 East Marginal Way. The previous property owner, Becker Family Revocable Living Trust, had requested a code interpretation pursuant to TMC 18.96.020. Part of the property at this address is zoned Lowrise Residential (LDR), and part of it is zoned Commercial/Light Industrial (C/LI). The City moved for summary judgment on the grounds that: (1) the appellant lacked standing because the party filing the appeal, the Becker Family Revocable Living Trust, did not own the property and was not a real party in interest; and (2) the appellant had not asserted or demonstrated any harm suffered, as required by TMC 18.116.030; and (3) as a matter of law, the City's interpretation was correct and should be affirmed. The appellant filed a response and cross - motion for summary judgment, and requested that certain portions of the interpretation be vacated. Oral argument was heard by the undersigned Hearing Examiner on August 30, 2005. Represented at the oral argument were the appellant, C & D Wells, LLC, by William J. Crittenden, attorney at law; and the City, Department of Community Development, by Shelley Kerslake, City Attorney. The appellant was also represented in this matter by Robie Russell, attorney at law. 2. The following materials were submitted by the parties and considered by the undersigned on these motions: a. City's Motion for Summary Judgment and attached Exhibits 1, 2, 3 and 4 b. Appellant's Motion for Continuance/Motion for Briefing Schedule and attachments L04 -026 Order Page 2 of 6 c. City's response to Appellant's motion for continuance d. Appellant's Response to Motion for Summary Judgment and Appellant's Cross - motion for Summary Judgment with Appendix A and B e. Declaration of Robie Russell and attached Exhibits A through G. f. Second Declaration of Rolan Becker g. Property Owner's Reply on Cross Motion for Summary Judgment 3. At oral argument, the appellant offered a copy of a letter dated August 19, 2005, from Kathryn A. Stetson, City Code Enforcement Officer, to Christie Wells, Wells Trucking & Leasing, Inc., as being a statement against the City's position. The City objected to its admission. The letter refers to "excessive noise from your truck terminal operation." The letter did not refer to any specific area of the property and does not indicate what, if any, authority Ms. Stetson would have with regard to making a Director's interpretation. The letter was not admitted because of its lack of probative value. 4. As a preliminary matter, the appellant argued that the City's rules should not be interpreted to allow the City to move for summary judgment in an appeal proceeding of this nature. Although the Rules and the Code do not specifically provide for summary judgment, it is consistent with the authority provided the Hearing Examiner by the Code and Rules, which grant the Examiner the authority to rule on dispositive motions. Tukwila Hearing Examiner Rule 1.02(b) also provides that the Examiner may look to the Current Civil Rules of Superior Court guidance in determining practice or procedure. The Hearing Examiner may rule on a motion for summary judgment. 5. Subsequent to the City's motion, the appellant moved to substitute C &D Wells, LLC, the current property owner, as the appellant. The City did not object, and withdrew its argument that the appellant was not a party in interest. The appellant's motion to substitute is therefore granted. 6. The City's related argument was that the appellant lacked standing because the appellant has not demonstrated injury or harm, in accordance with TMC 18.90.010 and 18.116.030. The City contends that the code interpretation does not prejudice nor is it likely to prejudice the appellant, and does not place restrictions on the property. As noted below, the Examiner agrees with the City that the Director's interpretation does not place restrictions on the use of the property. However, viewing the facts in the light most favorable to the appellant, it cannot be concluded as matter of law that the appellant is not aggrieved within the meaning of TMC 18.90.010 or that the appeal statements fail to state harm suffered. The remainder of this order considers the other issues raised by the City and the appellant in their respective motions for summary judgment. L04 -026 Order Page 3 of 6 Issues 7. The following issues are presented in these motions: Whether the appeal should be dismissed because the appellant has not asserted or demonstrated any harm suffered under TMC 18.116.030(3) Whether the Director's interpretation should be affirmed as a matter of law. Whether the interpretation should vacated in part, because: (a) the City had no authority to place specific restrictions on the future use of the property; or (b) the LDR- portion of the property should have been considered to be in truck terminal use. Analysis 8. Summary judgment (or at the administrative level, summary disposition) is proper when the pleadings and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. City of Lakewood v. Pierce County, 144 Wn.2d 118, 125, 30 P.2d 446 (2001). A material fact is one affecting the outcome of litigation. Anica V. Wal -Mart Stores, Inc., 120 Wn.App.481, 487, 84 P.3d 1213 (2004). In reviewing a motion for summary judgment, the Examiner must consider the facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Id. But the nonmoving party must set forth specific facts to defeat a motion for summary judgment, rather than relying on bare allegations. Id. at 487 -88. 9. Under TMC 18.06.560, a nonconforming use is "the use of land which does not conform to the use regulations of the district in which the use exists. " TMC 18.70.040 provides that "Any preexisting lawful use of land made nonconforming under the terms of this title may be continued as a nonconforming use" but may not be "enlarged, increased or extended. " A legally nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. Rhod -A -Zalea v. Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 (1998). A protected nonconforming status generally grants the right to continue the existing use but will not grant the right to significantly change, alter, extend, or enlarge the existing use; local governments are free to preserve, limit or terminate nonconforming uses subject only to the broad limits of applicable enabling acts and the constitution. Id. at 7 (citations omitted). 10. It is not disputed that the operation of a truck terminal is an outright permitted use in the C/LI zone, and would not be nonconforming under the Code. Thus, the issue of nonconforming status applies only to the alleged truck terminal use or accessory parking for that use on the LDR -zoned portion of the site in this case. The use on the LDR -zoned L04 -026 Order Page 4 of 6 Seri portion of the property would be legally nonconforming if it were legally established at the time of annexation, when the City's zoning code became applicable to the property. 11. The appellant argues that the Director's interpretation exceeded the scope of the question presented to him, i.e., whether the nonconforming use had ceased for six months so as to be abandoned. However, in order to determine whether a nonconforming use at the LDR-zoned portion of the site had been abandoned, the Director had to determine which nonconforming use had been established. Thus, the Director had to determine what use or category of uses had been established on the LDR -zoned property at the time of annexation, and whether that use had continued (with no break of six months or more) after annexation. It would be unreasonable for the Director to confirm the continued existence of a nonconforming use without determining what that use was. In this case, the Director determined that the use was parking that was accessory to the use of the building on the C/LI zoned portion of the property. 12. The appellant argues that the Director was without authority to place "restrictions" on the future use of the property, and that the Director was only authorized to address whether the nonconforming use had ceased for a period of six months or longer. No Code provision has been cited that supports this argument, although the appellant cites Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002). 13. The Director's interpretation did not place restrictions on the property. The Director's interpretation (as amended by the July 12, 2005 staff report) identified the use that the Director had determined to be the legally nonconforming use at the LDR site. As noted above, the identification of that use was necessary in order for the Director to determine whether the use had been abandoned. The interpretation does not contain conditions (e.g., specifying hours of operations, air quality control measures, etc.), does not on its face purport to be a permit or an enforcement order, and no Code provisions have been cited that identify the Director's interpretation as a permit, enforcement order, or other action that restricts use of the property. 14. In Nykreim, the court determined that the Land Use Petition Act applied to both ministerial and quasi-judicial land use decisions, and that Chelan County was therefore time- barred by LUPA from challenging a boundary line adjustment decision issued by the County Planning Department. The appellant argues that the interpretation controls what is permitted at the site in the future, that the matter is not ripe for such a determination, and therefore the Director is not authorized to make such a determination. But to the extent Nykreim applies to a Director's code interpretation, it does not apply to this case, where the interpretation placed no restrictions on the property but instead confirmed the legally existing nonconforming use at the site. 15. The appeal also argues that the nonconforming use at the LDR -zoned site is a truck terminal, not parking. In this regard, the appellant correctly notes that "parking of semi- trucks and semi -truck trailers" originally listed in the interpretation is not a use category found in the Code. However, this phrase was amended by the City in its July L04 -026 Order Page 5 of 6 12, 2005 staff report, which clarifies that the use at issue is categorized as parking accessory to the building on the C/LI portion of the property. This description is consistent with the list of accessory uses found in TMC 18.10.030, and the Director's interpretation is not in error for failing to identify a use that is included in the Code. 16. The appellant also argues that the City has wrongly classified the LDR -zoned site as a different use from the C/LI site, because both sites, according to the appellant, have been operated as a truck terminal. Further, the appellant argues that the zoning line is an "imaginary" line that should not be considered in determining the use at the site. The appellant cites City of University Place v. McGuire, 144 Wn.2d 640, 30 P.3d 453 (2001) for the proposition that the truck terminal's fluctuating use of various portions of the site at various times requires that the entire property be deemed in "truck terminal use." But the University Place decision turned on the application of the diminishing asset doctrine. The court applied that doctrine to the mining operations in question, noting that the "proper scope of a lawful nonconforming use in an exhaustible resource is the whole parcel of land owned and intended to be used;" 144 Wn.2d at 751 (emphasis added). No exhaustible resource is present in this case, and University Place does not compel the outcome urged by the appellant. Further, the zoning designation on the property cannot be disregarded by the City as "imaginary," because it is only the use of the LDR -zoned property that is nonconforming and therefore the subject of the interpretation. 17. The Code does not define "truck terminal" but the City cites the dictionary definition of "truck terminal ": "either end of a carrier line with classifying yards, docks and lighterage facilities, management offices, storage yards and freight and passenger stations." (Websters Third International Dictionary). The City correctly points out that the historical records, which are not disputed, do not show such activities at the site at the time of annexation, but instead show parking of vehicles associated with the truck terminal activities occurring on the C/LI portion of the property. The appellant has submitted definitions from out -of -state codes in support of its argument that the parking area should also be defined as "truck terminal." But the use of such definitions is not supported by any cited rules of statutory construction. 18: It should be noted that the appellant also submitted a declaration of Rolan Becker that describes the use of the "outdoor areas" of the property, but the declaration does not dispute the salient facts. The declaration does not identify a specific time period, i.e., that the described activities were occurring at the time of annexation, or that the activities occurred in the LDR -zoned "outdoor area" of the property. Further, the declaration describes activities (e.g., moving and backing trucks and semi - trailers, staging trucks,) that by and large appear to be consistent with the Director's interpretation and categorization of the use. The material facts as to the use of the LDR -zoned property at the time of annexation are undisputed and show that the Director's interpretation was correct. L04 -026 Order Page 6 of 6 Conclusion 19. The undisputed facts in this matter show that the Director's interpretation was correct. At the time the subject property was designated LDR, that property was used for parking accessory to the use occurring on the C/LI property. The Director also had authority to issue this interpretation, and as a matter of law, the interpretation should be affirmed. Order The City's Motion for Summary Judgment is hereby granted. The appellant's cross - motion for summary judgment is denied. The Director's interpretation is hereby AFFIRMED. Entered this 8th day of September, 2005. Anne Watanabe Hearing Examiner Pro Tem City of Tukwila MICHAEL R. KENYON BRUCE L. DISEND SANDRA S. MEADOWCROFr SHELLEY M. KERSLAKE HEIDI L. BRosrus KERRI A. BERGLAND MrNDY A. RosTAMI Anne Watanabe Hearing Examiner City of Tukwila 700 Fifth Avenue, Suite 4000 Seattle, WA 98104 VIA FACSIMILE AND LEGAL MESSENGER Re: Becker Family Revocable Living Trust v. City of Tukwila No. L04 -026 Dear Ms. Watanabe: The City of Tukwila is in receipt of your memorandum of August 16, 2005. The City would like to rely on its written submissions to resolve this matter and does not believe a hearing is necessary. If you have any questions or concerns, do not hesitate to contact me. Very truly yours, KENYON DISEND, PLLC cc: Robie G. Russell Jack Pace J Brandon Miles FAAPPS \CI V \TUKWII.A\B ecker\Ltr-W atanabe.81705.DOC/MF /08/ 17/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 W W W . KENYOND I SEND. COM (425) 392 -7090 • (206) 628 -9059 FAX (425) 392 -7071 August 17, 2005 43-‘ Shelley M. Kerslake SERVING WASHINGTON CITIES SINCE 1993 RECEIVED AUG 1 8 2005 COMMUNITY DEVELOPMENT LACEY L. MADCHE PETER B. BEcKwrm JosEPx P. LOUGHLIN THOMAS J. GuILFOIL RENPE G. WALLS ROMAN S. DIXON JOSEPH B.LEVAN AUG.16.2005 4 :29PM HEARING EXAMINER City of Seattle Gregory J. Niokcla. Mawr Gregory J. Nickels, Mayor Office of Hearing Examiner Sue A. Tanner, Hearing Examiner Anne Watanabe, Deputy Hearing Examiner August 16, 2005 TO: Shelley Kerslake, City Attorney Robie G. Russell, Attorney at Law FROM: Anne Watanabe, Hearing Examiner pro tem SUBJECT: L-04 -026, Code Interpretation Appeal (12677 East Marginal Way South) Order on written submissions At this time, the parties have submitted briefs and supporting affidavits on their motions and cross- motions for summary judgment. Since it appears that both parties wish to rely on their written submissions, I intend to issue a written ruling on all motions without further briefing or oral argument by the parties, If in fact the parties wish to have a hearing on this matter, please advise my office of this fact by August 21.2005, so that the matter may be calendared for hearing, Thank you for your attention to this. cc: Brandon Miles, DCD siee Mailing: PO Box 94729, Seattle, WA 98124-4729 Seattle Municipal Tower, 700 Fifth Avenue, Suite 4000, Seattle, WA 98104 206- 684 -0521 Fax 206 -684 -0536 www.ciryofseattle.gov /examiner An equal employment opportunity employer. Reasonable accommodations upon request. NO.187 P.2 /2 I�- Rug 15 05 03:21p Kenyon Disend I8 19 20 25 5 6 7 8 9 10 11 12 13 14 15 16 17 1 2 3 4 In re CODE INTERPRETATION by the CITY OF TUKWILA, DIRECTOR OF COMMUNITY DEVELOPMENT for Property Located at 12677 EAST MARGINAL WAY SOUTH TUKWILA, WASHINGTON PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT -1 `r BEFORE THE HEARING EXAMINER OF THE CITY OF TUKWILA 425 -392 -7071 NO. L04 -026 PROPERTY OWNER'S REPLY ON CROSS - MOTION FOR SUMMARY JUDGMENT The Becker Family Revocable Living Trust ( "Trust "), former owner of the truck terminal located at 12677 East Marginal Way South, Tukwila, Washington ( "Property"), and the new owner of the Property, C &D Wells, LLC, d/b /a Wells Trucking & Leasing ( "Wells ") submit the following reply in support of their cross - motion for summary judgment. I. REPLY ARGUMENT ON PROCEDURAL ISSUES The City has no objection to the substitution of the current owner (Wells) as the 21 22 appellant in this case. Ciry's Reply at 1. Therefore the Hearing Examiner must accept such 23 substitution, and no further argument on the property owners' motion to substitute Wells is 24 necessary. ROBIE G. RUSSELL ATTORNEY AT LAW 76 soave Mein met Seattle. Washington 981042514 (206) 621 -4104 p.1 Rub 15 05 03:21p 'Kenyon Disend 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 1 2 3 4 5 6 7 8 9 425 -392 -7071 p.2 A. The City is not permitted to file a "motion for summary judgment" in an administrative appeal proceeding. The dispute over whether the City is permitted to move for summary judgment in an administrative appeal is now largely academic. The appellant property owners challenged the City's use of this procedure in order to preserve the appellants' rights to (i) file this reply memorandum, and (ii) have oral argument on the merits of these motions. Property Owners' Response at 8. The City has not submitted any argument on these issues. Instead, the City asserts that an evidentiary hearing is not necessary. City's Reply at 2. The property owner has requested oral argument, not an evidentiary hearing. Such oral argument should be scheduled as provided by the Hearing Examiner's previous order. Nevertheless, the City's interpretation of its own administrative procedural rules is unreasonable and should be rejected by the Hearing Examiner in this case and any future cases. Interpreting Rule 2.11 to allow a respondent to move for summary judgment places an appellant under unreasonable time constraints and prevents the appellant from responding to the City's arguments. The issue presented is whether the City's own rules should be interpreted to allow the City to move for summary judgment in an appeal proceeding. The appellants have not argued that a summary judgment procedure would violate Washington law if the City's rules allowed such motions. Consequently, the City's reliance on Eastlake Community Council v. Seattle, 64 Wn. App. 273, 823 P.2d 1132 (1992), and Asarco v. Air Quality Coalition, 92 Wn.2d 685, 601 P.2d 501 (1979), is misplaced. Those cases hold that administrative agencies may use summary judgment procedures, but they shed no light on how the City's own rules should be interpreted. PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT - 2 ROBIE 0. RUSSELL ATTORNEY AT LAW 96 South Main Sheet Wok, (206) 621 -2104 Aug 15 05 03:21p Kenyon Disend 425-332 -7071 pea 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 1 2 3 4 5 6 7 The City's assertion that the property owners' argument regarding the correctness of a summary judgment in an appellate proceeding "is not supported by citation to a single authority" is simply false. City's Reply at 2. The appellant property owners' argument is based on the language of TMC 18.90.010; TMC 18.104.010(C); and Rules 2.02(b), 2.11 and 3.11, and the owners have cited statutes, court rules and cases as analogous authority. Property Owners' Response at 7 -8. The City has not submitted any argument on the issue of how the City's rules should be interpreted. Therefore, the Hearing Examiner should reject the City's unreasonable interpretation of Rule 2.11, and hold that the Rules do not permit the respondent City to file a motion for summary judgment in an appellate proceeding. B. The property owner has been harmed by the City's Decision and has standing to challenge that Decision. The City challenges the property owner's standing based on both (i) a lack of actual harm, and (ii) an alleged failure to comply with TMC 18.116.030(3). City's Reply at 2. The City has not explained why the appellant's alleged violation of TMC 18.116.030(3), if any, is not harmless error. Therefore, the suggestion that the City would be entitled to any relief for such error is frivolous. The City's arguments about whether the property owner has demonstrated actual harm for purposes of standing are circular and incoherent As explained in the property owners' cross motion, a property owner always has standing to challenge restrictions on the use of property. Property Owners' Response at 9. The City simply ignores the authorities cited by PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT - 3 ROBIS: G. RUSSELI, ATTORNEY AT LAW 76 South Hain Street Seattle, Washington 98104 -2514 (206) 621 -2104 Rug 15 05 03:21p Kenyon Disend 13 15 16 17 18 19 20 21 22 25 4 5 6 7 8 9 10 11 12 14 1 2 3 425- 392 -7071 p.4 the property owners. The City cites no contrary authority because none exists.' Instead, the City argues that the owner lacks standing because (i) the City has not placed any restrictions on the property or, alternatively, (ii) that those restrictions do not actually restrict anything. City's Reply at 2. However, the director's interpretation states that: The non - conforming rights are as follows: Parking of semi- trucks and semi -truck trailers in association with the use of the building as a truck terminal.... Please note that merely parking a semi -truck or semi -truck trailer on the property will not preserve the non - conforming right. The LDR portion of the property must be used in conjunction with the building on the property. Notice of Decision at 5 These provisions are clear restrictions on the use of the Property for purposes of the property owner's standing. Any discussion of whether these restrictions are wrongful or were imposed without lawful authority go to the merits of this appeal The City cannot challenge the property owner's standing by simply asserting that these restrictions are not harmful to the property owner. Obviously the property owner disagrees with the City, and that is good enough for owners' standing. The sole purpose of this appeal is to vacate these provisions of the director's interpretation. That is the only relief requested in this case. There is no permit application at issue, and there is no enforcement action pending. if as the City suggests, these provisions do not actually restrict the use of the Property, then the Hearing Examiner should ask: U.S v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 669, 93 S.Ct. 2405, 37 23 L.Ed. 254 (1973), cited by the City in both its motion and reply, involved a challenge by environmental groups to ICC orders allowing certain railroad freight surcharges. SCRAP does not address, much less support, the City's 24 argument that a property owner lacks standing to challenge land use controls affecting the property. PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT - 4 ROSIE G. RUSSELL ATTORNEY AT LAW 76 South M,in Street Sea . Wuhington 98104 -2314 (206) 621 -2104 Aug 15 05 03:22p Kenyon Disend 21 22 23 24 25 10 11 12 13 14 15 16 17 18 19 20 3 4 5 6 7 8 9 1 2 425- 392 -7071 p. PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT -5 Why did the City put such meaningless provisions in its decision? 1 Why is the property owner willing to incur significant legal expenses to challenge those provisions? Why is the City spending the taxpayers' money to hire lawyers to defend those provisions in this appeal? The City cannot answer these questions. If the City honestly believes that the director's interpretation does not restrict the use of the Property then the City should simply consent to the relief requested by the appellant owners and remove the unlawful restrictions. If on the other hand, the City understands that these restrictions are harmful to the owner then the City should limit its arguments to the merits. Either way, the City advance frivolous arguments about standing. 11. REPLY ARGUMENT ON THE MERITS The City's arguments are based on the assumption that the LDR portion of the property has only been used for parking. Although the City repeatedly asserts that this is an undisputed fact, the City is simply wrong. As the Second Declaration of Rolan Becker states, the truck terminal includes both the terminal building and the Large outdoor areas around the building. The outdoor areas of the' truck terminal are not merely used for "parking." The outdoor areas are used for many different trucking operations including, but not limited to, (i) moving and backing trucks and semi - trailers, (ii) loading freight from one trailer to another, (iii) staging trucks that are waiting for drivers, (iv) storing freight, trucks, trailers, and containers, (iv) washing trucks, (v) performing maintenance on trucks and trailers, (vi) moving tires from trailer to trailer, and (vii) warming up truck engines in the during the winter months. S and Declaration of Rokm Becker, ¶ 4. RoaIB G. RUSSELL ATTORNEY AT LAW 76 South Main Saes SeatVa, Washington N104-2514 (206) 621 -2104 Rue 15 05 03:22p r� I1 25 Kenyon Disend PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT -6 425 - 392 -7071 p.6 1 The City has no evidence to the contrary. The City's declarations and aerial photos do 2 not contradict Mr. Becker's declaration. Furthermore, the City bears the burden ofproof to 3 show that a nonconforming use has been abandoned. Van Sant v. City of Everett, 69 Wn. 4 I� App. 641, 648, 849 P.2d 1276 (1993). The City cannot meet that burden, and in fact, its 5 __ Decision has already confirmed that the nonconforming use has not been abandoned. 6 7 The City's assertion that Mr. Becker's affidavit is "self - serving" is neither evidence nor 8 proper argument. City Reply at 2. Mr. Becker has greater personal knowledge of the 9 underlying facts than any other witness, and he has no personal interest in the Property or 10 the outcome of this case. The City's groundless attack on the credibility of Mr. Becker is a 11 tacit admission that Mr. Becker's testimony is not contradicted by any witness or evidence. 12 Consequently, it is undisputed that the LDR portion was not merely used for parking. 13 The LDR portion is a part of the larger truck terminal, and it has been used for all the 14 various functions testified to by Mr. Becker. 15 A. The City had no authority to place specific restrictions on the future use of the 16 Property. 17 As explained in the property owners' cross motion, the issue on which an interpretation 18 was requested was whether the nonconforming use was abandoned. Property Owners' 19 Response at 11. The City admits that the use has not been abandoned. Therefore, the 20 question becomes "what provision of the Tukwila code gives the City the authority to 21 restrict a nonconforming use when the City was not asked to do that ?" The City has no 22 answer, except to assert that it has not actually placed restrictions on the Property. Once 23 again, the City's procedural arguments are based on assumptions that go to the merits of the 24 case. ROBTR G. RUSSELL ATTORNEY AT LAW 76 South Main Street Saffic, Washington 96104.2314 (206) 621 -2104 Rug 1505 03:22p • 15 16 17 18 19 20 2I 22 23 24 25 13 14 6 7 8 9 10 11 12 5 1 2 3 4 Kenyon Disend PROPERTY OWNER'S REPLY ON 26 CROSS - MOTION FOR SUMMARY JUDGMENT-7 425 - 392 -7071 p.7 B. The LDR portion of the Property is part of the larger "truck terminal" use. The City has erroneously assumed that the truck terminal use is limited to the truck terminal building. The City quarrels over the meaning of the term "local," City's Reply at 6, but ignores the actual issue presented. Every definition of "truck terminal" suggested in this case — including the definition suggested by the City — includes outdoor areas. City's Motion at 10. A truck terminal is a dynamic use that occurs both inside and outside of the building on the CU portion of the property. Contrary to the City's assumptions, the outdoor areas of the Property are not merely "parking" areas. The City offers no argument or authority to the contrary. Furthermore, the Tukwila zoning code does not recognize "parking of semi - trucks and semi -truck trailers" as a use classification separate and apart from "Truck Terminal" use. Again, the City offers no argument or authority to the contrary. C. Whether new terminal buildings might be constructed on the LDR portion of the Property is speculative at best and is completely irrelevant to this case. In its motion, the City asserted that the existing truck terminal building might be expanded if the LDR portion of the property were considered part of the truck terminal. City's Motion at 11. The owner pointed out that the City was either attempting to mislead the Hearing Examiner or simply failed to read its own zoning code. The City' reply does not address this issue at all. The City's silence is an admission that the City's earlier statements about buildings on the LDR portion are wrong. ROBIE G. RUSSELL ATTORNEY AT LAW 76 south M.in throe Seattle. Washington 981042514 (206) 621 -2104 Rug 15 05 03:22p Ken Disend 25 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4 5 6 7 8 9 10 1 2 3 PROPERTY OWNER'S REPLY ON 26 CROSS- MOTION FOR SUMMARY JUDGMENT -8 WSBA No. 20579 Attorney for Property Owner 425 - 392 -7071 IIL CONCLUSION For all these reasons, the Hearing Examiner should deny the City's motion for summary judgment, and vacate those portions of the Decision that attempt to restrict the use of the Property and/or define the scope of the valid nonconforming use of the property. RESPECTFULLY SUBMITTED this f 2' Irtiy of August, 2005. LL Roars G. RUSSELL ATTORNEY AT LAW 74 South Moth Street buck. Washington 981944514 (206) 621 -2104 p. 8 Hug 02 05 05:03p Kerl D i send 58/62/2565 15:20 2066212104 DATE: 8- 02605• TO: Shelley M. Ker FAX NUMBER: (425) FROM: Robie G. Russell LAW OFFICES ROB.IE 0. RUSSELL ATTORNEY AT LAW 76 South Main Street Scattic. Wastungtott 98104 -25.14 Fucci,ntle (206) 621.2104 (106)62i-2)02 425 - - '12 -7071 FA€S MILE CODER - PAGE PAGE 61 Licen.ed in Wa irinynon un4 Idaho Chi: itac cnce Nu. PHONE NUMBER: (2176) •62I -2102? COMMENT: ";ruck Terminal -- 12677 East Marginal Way South, Thkwil WA' -- File No. L - - 026:. Response and Cross Motion with Appendices; 2d Declaration of Rolan Becker; Declaration of • Robie G. Russell with Exhibits jduc to volume, exhibits were :Hate. However, they can he faxed if you so desire.) NOTICE; THIS FACSIMILE MESSAGE IS A .PRIVILEGED AND CONFIDENTIAL COMMUNICATION AND IS TRANSMITTED FOR THE EXCLUSIVE USE OF THE: ADDRESSEE. THIS COMMUN.ICA.L'ION MAY Nt1T_.EE..COPIED OR DISSEMINATED EXCEPT AS DIRECTED BY THE ADDRESSEE. IF YOU RECENT THIS COMMUNICATION TIN =EIIRQR, PL *F- NOTIFY US.1MM. IATELY-BY TELEPHONE . AND MAID. THE COMMUNICATION TO US AT THE ABOVE ADDRESS. THANK YOU. p.1 Hub 02 05 05:03p y a. 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I8 19 20 21 22 23 24 25 26 Keen Disend In re CODE INTERPRETATION by the CITY OF TUKWILA, DIRECTOR OF COMMUNITY DEVELOPMENT for Property Located at 12677 EAST MAKt.IINAL WAY SOUTH TUKWILA, WASHINGTON BEFORE THE HEARING EXAMINER OF THE CITY OF TUKWILA L RELIEF REQUESTED The Becker Family Revocable Living Trust ( "Trust"), former owner of the track terminal located at 12677 East .Marginal Way South, Tukwila, Washington ('Property ~), and the new owner of the Property, ,C&D Ws�1s, . LLC, dlb /a Wells Trucking & Leasing ("Wells ") appeal froth City's Notice of Deciaiau ieelwd Tannary 2$„_20 ("Decision"). Appellant property owncra- submit this memorandumin pasitier=to,tliCiPtS "Mation.far, , Summary Judgment," and ova cross - motion got-sunmads judgment: The property owner respectfully requests that ttk a reify 'Ezs miner (1) deny the City's .motion for summary judgment, and (ii) vacate those portions of Decision that attempt to. restrict the use of the Property and/or define the scope orttfe vaifd'itonconforming use of the R - o - N 4 C G. R u S SE L t. PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION FOR SUMMARY JUDGMENT GROSS - MOUON FOR S AR- JUDGMENr - t NO. L04 425 PROPERTY OWNER'S RESPONSE T EE i'S MOTION FOR :.._ .. SUMMARY JUDGMENT "; CROSS -: BuYTIONTORIUMMARY JUDGMENT ATrORNtY AT LAW 7f T111R MYe 30ttt s (=06) 621.2194 p.2 Aug 02 05 05:04p Keen Disend 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 425 -''92 -7071 property. Such restrictions are beyond the scope of the requested code interpretation, which was directed at the question of whether the non - conforming use was abandoned or terminated. Having . conceded that the non-conforming use was not abandoned or terminated the City has no authority to place any restrictions on the Property.. II. FACTS A. The Property The Property at issue ix- a=.truck terminal located: at ,1.26V .East Marginal Way South . Tukwila. WA. The Property consists of two • sets - of • t enligitous - lots. See Diagram (Appendix A). The tint set, Eating Fast consists of lots 4, 22, 23, 24, and • 23. Those lots are currently zoned "CommerciralVLiglct Industrial" (C/LI). Sec ?MC Chap. 18.30. The second set, facing South 128th Street, consists o€Iots IS, I9, 20,..and 21. Those lots are currently zoned "Low Density Residential" (MR). See TMC Chan 18.10. When this appeal was filed, the Property was owned by Becker Family Revocable Living Trust ( "Trust "). On or about April 29, 2005, the Trust sold the Property to C&D Wells, LLC ( "Wells "). Wells is continuing the appeal originally filed by the Trust. See Motion To Substitute C &D JVeIIs LLC acAppellant... - B. Applicable Zonings The use of the Property a antck terminal predates:the:annexation of the Property by the City of Tukwila in- I989'. • friar to' that date, the 'e tire'Presperty was zoned "M -L -P" by King County The tntck terminal 'was- a peritiitied• use in dim zone: Kerslake Declaration, Ex.3. The line that separates the PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION FOR SUMMARY JUDGMENT': CROSS- MQT[ON FOR SUMMARY JVDOMENIT - 2 LDR portion of the property from the C/LI portion was Rasta G.RUs axi.l. ATTORNEY AT LAW KSsWhe.,„ geMtle, WnabxM 9INr43N (led) e21.210 p.3 24 Hug U2 05 05 _04p Kean D i send 17 18 19 20 21 22 23 24 25 26 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 425 - ''92 -7071 PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION rug SUMMARY JUDGMENT"; CROSS -1 OTLONIDR.SLIMMARY Jtmr,M1?NT -3 arbitrarily drawn by the City of Tukwila when it zoned the arcu. That line bears no relationship to the physical characteristics or use of the property other than the fact that the terminal building is on the C/LI portion. Since annexation the Property has been used by various tenants as .a truck terminal. It is undisputed that this use..of..thc . Propetty. is :classified Ais :.. "..Tiucic, Terrain ai"- -uadu -#he Tukwila zoning code.• •1 1w,tice -ef Decision; 'Finding No S; fled ton- ofRobie -G.- rssetl:: ('Russell Dec.'), EX..' A: • "Truck Terminal' is . a permitted uses in the C/1.3;" "Light 'Industrial," "Heavy- - Industrial," "Marrutacturing Industrial Center/Light,' - Manutlicturing Industrial - ' • Center/Heavy," and ''Tukwila Valtey South" zonca. Sae TMC 18.30,030(61); 11% .12 020(59); TR .34.020(62); 18.36.020(39); 18.38.020(45); 18,40.020(62). It is undisputed that the use of the CAI portion of the Property is a pernnitted use. - See Notice of Decision, Finding No. CI . t is also undisputed that the use of the UDR portion of the Property as a truck tertninal.is a valid nonconforming sue. Id. C. Use of Prop rty,by,Tenants -. . The entire Property : was,leased to.Becker_Ttucking Itic_.in..1997.. - Russell Dec., Ex. B. Becker Trucking used- therProperty'z a- truck terMinsl.;• The - Lease expired in March- of:.:. 2002, at wheh time.13 deicer •Tiuc1dnb liegari 'tti ifs . operations to - 2r ncvr location. But Becker Tiliclitig continued to use the Frhpi rty - th'ringh - .TRnuary 2003. Russell" • Dec., Ex. C. The Property was also used by other Iiuckitig companies, including Becker Transfer Company, from October 2002 through tanua y 2003.. Russell Dec., Ex- D. The Property was leased to Edgmon & Son Trucking on Jautaary 23-, ^003. Edgmon took RoaIE G. RUSSELL A'TIORNRY , T LAW 76 snob has Arta W.d.iypn 1 /0 .,s i. (30R) 611.2104 •.4L V . p.4 Hug U2 05 05:04p 1 3 4 5 6 7 8 9 10 1.1 12 13 14 15 16 17 18 19 20 21 22 23 2'l 25 26 Ke, Disend 425 -' -7071 possession and began using the Prove( uu Felimacy 2003. Russell Dec., Ex. E. The Csty erroneously asserts that the outdoor portions of the Property have only been used for parking semi- trucks and trailers. City's Motion at 2. The truck terminal includes both the terminal building the large outdoor areas around the building. The outdoor areas of the.teuck-teminaLereAtot merely used for ' .`parking. ".,The ontdonr-a eas_.are used for many different -trucking 'operations including, but •net:=li[nitad•.t , : .(i). tt oving -and backing : ; trucks and •seriiiitfailePr; (10 loading fight from oneirailer'to:anothter; staging trucks PROPERTY OWNER'S RESPONSE TO CITY'S " FOR SUMMARY JUDGMENT;' ; CROSS- MaTION FOR SUNIMAkY JUDGMENT - 4 that are waiting flu dfivcrs; (Iv) storing freight,' Wield; t►ailefs, and' i-ontk hers, (iv) washing trucks, (v)- performing maintenance on trucks and trailert; (v — moving tires from trailer to trailer, and (vii) weaning up engines in the during the winter months. Second Declaration of Rolan Becks; ¶ 4. D. Dispute Over Nonconforming Use to 2003, the City of Tukwila began to question whether the nonconforming use of the Property as a truck terminal had been abandoned for purposes of TMC 18.70.040(3). This issue initially arose in the context of disputes between the City and various tenants over the requirement of a business: liesnse,-to- operate. the.tnttck retinal. _ The Trust, as the actual owner of the Properlyr.was ;not a party to these licensing: disputes.: The City concedes that the tenants' cotnptiaatne•with the City's 'business lit:twin Tuley is irrelevant to thc qucation Notice of Decision at 5. of whether thc Property contint:ed to be used as a tr'uCk teimiit F. niree:tnes Interpretation In the Fall of 2004, the City and the Trust "agreed to use the code interpretation procedure in TMC I S.96.020 to obtain an appealable decision on the question of whether the Roux G.RusSkLL ArrrmxsrATY nw '6 Seam Maio Feed JPJ41e. }111WWIt,w. 6ti(U•2:t4 0.1) {21.210+ P.5 Rub 02 05 OS:O5p Ke n Disend 5 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 425 - ° '92 - 7071 va d nonconforming as a truck terminal had been abandoned. Russel/Dec., Exs. F, 0. Although the Trust did not have the burden of proof, the Trust provided the City with eciaratinna and.documentsshawing_that the Property had been continuously used as a truck terminal. Russell On Jemmy 2 &,•:20 Tithe City issued its Notice of:Decision, which clearly stated that the nonconforining-iise of the Propeny°has not been abandoned_ While Becker Tiucking, Transfer, and Edgmoir and Sdn Trucking were operating ar the. site without a business license, based upon the Declarations provided to the City, the signed contract between Ed"vrin T' Wecker and Becker —Thicking-Incorporated it is established_thet they.wern in fact operating a2tuck tcz a in t on the CAI portion of the site and were using theLDR.pottion for the parking of semi-truekir and:senmi-t ucktrailerA -astd £bus-tbe non c ins _.. di' rights for the LDR portion of the property ham nut Weir abandoned -. A Notice of Decision at 5. V F. Director's Improper Additional Conditions The paragraph quoted above resolved the only issue on which a code interpretation had been requested: whether the nonconforming use of the Property had been abandoned. Unfortunately, the City attempted to uarrowly_define the scope of the nonconforming use and improperly in posed eonditions,onsnaintaiaing lice. The non - conforming rights are as follows: Parking of semi trooks ,cmi -truck trailers itttissaciation: with the use of the building as a truck terminal.... Please note that merely parking a semi- truck or semi -truck trailer on the property will not preserve the nor- conformiiieright_' TfieLDR`portion of the property must be used in conjunction with the building on the property. Notice of Decision at 5 -6. PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION FOR SUMMARY JLIDGMErxr_;:�oSS:MOTION summARY . JODCMEi rr.. 5 Rosa G. RussELi. ATTORNEY AT LAW M t.ah Min $7a* �avc w«46“s vn ,y,µaim (206) M. M p. 6 FiuC 02 05 05:05p Ke„, on D i send 9 10 11 12 13 .1.4 15 16 17 18 19 20 21 22 23 25 8 1 2 3 5 6 425 ' - 7071 p 7 The Trust appeals tom the impusit.iuu of ere conditions. t UL ISSUES PRESENTED A. Whether the respondent Citv is permitted to file a "motion for summary judgment" in an administrative appeal proceeding. ... 13. W hether>: the . property owner has standing,, to : chalk:tee the City's attempt_ to. ; place restrictions on use oFthe Property. C. Whether the - new owner should be - sutrstittited = for. the former owner as the appellant in this case. D. Whether the City lacks the authority to- restrict the Legal use of the Property and/or define the mope of the valid noncon r:Wag use of the Property where it it undisputed that the non-confirming use was not abandoned or terminated for purposes- of TMVIC 18.70.040(3). IV. EVIDENCE RELIED ON This memorandum is based on the administrative record created by the City, the Declaration of Roble ( Russell re: Use of Truck T :the ecand Declara(ion of Roinn Becker re: Use of Truck_Terminal,..and the pleadingsStled-lereine, V. ARGUMENT ON PROCEDURAL IBSUES = - The City's "motion for.sutnmary judgmenrpresenis`sevtral•procedurat issues that siti:st • be addressed before reaching, the merits of this appeal: I The Director also made ttan enema finding, of faet many of which - are either iacnrroat or iaetevamt or both. The 24 Tract has specifically lissigned error to these f opines in its Notice of.ApnnaI datedFetaruary 9, 2005, and will trot repeat those assignments of error here. PROPERTY OWNER'S RESPONSE TO CTtY's "MO'rIONF02 26 SUMMARY JUDGMENT". C OSS- MOTIOId_FORSIJ.M FARY JUDGMENT - 6 R081E G. R USSELL ArrosNEY AT t AW 70 Soon Main Sind _l.. 'MUlllne o• WO* 0.a • I HI•Z1M Rug 02 05 05:05p 1 4 5 6 7 R 9 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 26 A. The City is not permitted to file a "motion fur HUMPS/try judgment" in an administrative appeal proceeding. The City lta s ftleti iso- Called "motion for strmmaryT judgment. Allowing the City: to present the merits in this posture is - contrary to established practice. This :.. procedure untairiy reverses the normal briefing schedule; planes' the appellant property' - - uwuei under unreasonable time restraints_ and prevents the appellant from adequately responding to the City's argttrnents The City of Tukwila has recently promulgated certain "Hearing Examiner Rules of Practice and Procedure" (hereafter, "Rules "). This proceeding is clearly an "appeal" for purposes of those Rules. TM:C 18.90.010; TMC :104.010(C), Rule 2.02(b). The property owner is clearly an appellant. Although Rule 2.11 .allows parties :to file ( :'motione, thet- Rule - should -not he interpreted . to allow the City to fElcra. "motion for summary judgmentir:in -an :appellate proceeding:ia- :...: hi addition, Rule 2.11 gives a party only seven days to respond to a motion. This short time period may be appropriate for procedural motions, but it is much too short for briefs • that address the merits ilia party's case.. . Furthermore, motions are normally beard withuut,wal,argrucm.. In contrast, the appeal ROSIF 0. 1Zus57t.1. D i send 425 -''92 -7071 which the City is the respandent. Summary jtidgiiient-trajtklita are used in courts of original • - • jurisdiction to establish thc abscacc of rnatetiariseue. ofdisputed'fdct. See CR 56, Stich" • motions are not used in appellate courts. See:geicarally.. Wasliiagton Rules of Appellate' Procedure. Nor are such motions- contemplated under the land. Use Petition Act, Chap. 36.70C ( "LIIPA "), which provides for procedural motions, but requires a briefing schedule for the disposition of the merits. See RCW 36.70008a. PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION FOR SUMMARY JUDGMENT ": CROSS- MOTION FOR SUMMARY JUDGMENT .7 Au L/ YATYAW 76 Witt Align Witt Stalk. wok:W....}efea. :L cop)%tt-It0.1 p.8 rruc uz u5 Ub: U5p Ker , ,n Disend 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 �tg 19 425 - 392 -7071 rules require an actual bearing( See Rule 3.11. of surprisingly, the City iias requested that it's motion be heard witfwut orarargurn • This request is a transparent attempt by the City to prevent the appellant from n .spnnding to whatever arguments the City may make in its next brief The City's:Rules.were: recently .adapted, and this. case presents a question of _first impression as.to4ara those rules should be interpreted. The City;is obviously trying to, play hardball, a trar~iiftg' every pvssibfe procedural- -advantage: under - - its ; own now Rules. - To; ........ ensure a fair proceeding for the appellant in tliis' ease and'nr - a1i`fiitiire cases under these Rules, the Hearing F,r emin,'r must reject the City's unreasonable tntc, itatio z Di 2. i The Hearing Examiner must hold that the Rules do liar permit. the respondent City to cite a ",emotion for suimiary judgment" m art appellate-proceeding. The appellant has no objrrfinn to the City's existing "motion for summary judgment" being accepted as a brief. But the appellant requests a reasonable briefing schedule and a hearing with oral ar In the alternativc,...and :.without .waiving., its_ arguments_ an i objections above, the appellant hereby cross ,taoves r,t`sumrnaty jtnigmenr nri the as set forth in section V of this memtlttnt: ; .Appel►atst reserves its right to file :a reply 3nemorandum in support of its cross iiiotiotraft rili&Cifyfirei ib fast brief ort he'rneritsf . 20 B. Tile property owner has bee La iuvii ua i a a.iai's v••■••• ■. MU. . 21 challenge..#hat n..� ci can._ . 22 In its. motion._ the_.City _argues that .the property owner "has not asserted or 23 dernonstrated " any: harm .:as :required by TMC _1$.316.030(3) , City's Motion at G is 24 unclear whether -the City: contends that the property ownerJtu.rut actually been harmed by 25 RohiE G. aussztt L DT? nnvwry OWNER'S RESPONSE TO CITY'S "MOTION FOR ATirntrte Y AT LAW 26 SUMMARY JUDGMENT; CROSS. MOT1ON.1QR SUMMARY JUDGMENT - 8 saanw**Thief Sane. p/.s,iirce "1WO t* t 0141114 p. 9 hug ue uo ub:Utip Keen Disend 2 4 5 6 7 8• 9 10 11 12 4 is 16 17 18 19 20 21 22 23 24 25 26 the Decision or whether the City mcicly aigucs that the propetty owner has not complied with the procedural requirements of TMC 1/1.116.030(3). 1 ne harm to the property owner is clearly stated in the Notice °MAppeal — the City has "attempt[ed) .to:restrict.the. use. of - the- .ropety7. beyond_ xhe_scop.e ; of the issue presented in the requested- oadefirrt retatioer :Notice *sf Appeal at:4.:• - Aaty, restriction_ on - the use of :.. property constitutes 1 Iarar to the property owner: Thera ismo requirement that -tine- property:. owner disclose specific ftstuit'pleits fetthe use' of property would be prevented by the .; = _ h�is...•r• City's restrictions in order to challenge those restriction's. , - ui::i::rt•:: re, aril deticicnc� the Notice of Appeal is a. harmless procedural error that IS not grounds tuF Heating Exantrner Rule-1%02(0 only provides for n+sou1 wee the Searing Examiner lacks jurisdiction or where the appeal is frivolous on its face. --S a also RCW 36. 70C.130(1)(a) (courts will not gram relief for harmless procedural errors). ' 1 nc� vuQ�e_4ctr!n sne property owner iacks stwidingto challenge restrictions on the use of the property is abst tl. Chelan Ctaunty._u. lvykrei Wn.2d 904, 52 P.3d 1 (2002), cited by the City states: Under LL1RAtstandingto bring a land-usepetitioer:is-li:nited to the applicant or properly Owner to whom the land use decision is directed or a person agg riinevedtf the tasterusettecis'ror:: • Chelan County, 146Nirti :2cf it 933'(ciffrig RCW 36:70C:06oyc••Under LUPA (and the black letter law of standirei property owner always has•starrling. • The p&tic is Chelan Court; that lacked standing, under LUPA. were no the owners oi the plvuv y let to -uc. i.r "rc: ire ac iNtrfir"Nr OWNFR'S RESPONSE. TO CITY'S '•Mt:if ION FOR SUMMARY JUDGME JT':.CROSS:MOTION.7.0 . SUMMARY TT lDGMENT - 9 425 - 392 -7071 R OBLE G. R US7EW.A- ATTORNEY AT LAW 74 fowl, ihin suex 3..114. WiAkil mt7610• 11 +• p. 10 3 nub ue Ub U5:Ubp Ke; )r Disend 425 -392 -7071 91 10 1 11 12 13 14 15 I6 17 18 19 20 21 22 23 24 25 26 7 8 S 11 Cyrano.., 146 Wn.2d ::t 9.15 . Finally, to the extent the City's argument is based on the fact that tiro Pzoperty has been sold to C &D Wells, LLC, that matter has been addressed in the property owner's Motion to Substitute Cdcl) Welts, LL(, as Appellant. See section (B) (below). The new owner (Wells) clearly has standing to challenge any restrictions on the_use.oLthe_ptoperty. C. The current owner (wells) should be st b m:m. b: appeeU nt. In its motion the City_ also _argues that 1hitberp ..rld:be- dismissed because the Trust Oft longer owns the property. CIO Motio '•ar-8: °'Assexpla cd :in the property owner's Affix/cm la Substitute C z7 Welte, LLC as )ti4 a flint' therliiew 'owner (Wells) wishes to substitute for the Trust and to continue to prosecute t1iis'appeal: " VL ARGUMENT ON THE MERITS The is.W4 on which the property owner requested an interpretation is whether th nonconforming use of the tack ter minal had been abandoned. Having conceded that t ;e nonconforming use was nor abandoned, the City should have stopped thero. Instead, in a misguided effort to prevent future expansion of the truck terminal building. the City has attempted to restrict the use of the LDR portion of the Property to just "parking." The restrictions imposed in the City•.&D ion. -ar haseLLon two fundamental errors in the City's analysis of nonconforming uses:; < • First, the City uses an incorrect definitioir =of"tfttieletcrrninal" that includes only the terminal building, and excludes the outddor areas orite Property. ' On page 7 of its motion, the City garbles two cases into a single erroneous citation. Neither case establishes that an owner lacks standing. MPS v. Jfor/re/J. 89 Wn.2d 8G2, 576 P.2d 401(1970, involved an etw:reantc t 1 group that was dcttxmincd to have standing. Treponier v. Everett, 64 Wn. App. 380, 824 P.2d 524. review decried 119 PROPERTY OWNER'S RESPONSE TO "MOTION FOR SUMMARY JUDGMENT'; CROSS. MOTION FOR SUMMARY JUDGMENT • 10 Roars G.Russitu. .. J.:TO 2.t:Y AT i,A 7C xae6 Men Seer. Snide WWwermonn&yu (20.) KV 4104 p. 1 Mu6 ue u5 ub:U'/p K pn Disend 425 - 392 -7071 p.12 24 25 26 1 1 3 4I 5 6 7 8 • Second, the City erroneously asserts that ciasai& ativsi of the outdoor areas as a "inlet terminal" would allow new hiiildings to he constructed on the LDR portion of the Property. Contrary to the City's analysis, the entire .Property — both the CILI and LDR portions — is a "truck terminal" and may be used for any lawful purpose consistent with that use classification. A. The City had no •ittarity to place specific- rest<s4tlanv on the future use of the Property. IPA 1 0 restrict the use of the Property and/or define the scope of the valid nonconforming use of the 11 11 property. Such restrictions are beyond the scope of the rettuestc ode. interpretation, which . The Hearing Examiner must vacate those portions of the Decision that attempt to 1G was directed at the gunstion , of whether- the :non - conforming use was abandoned .or 13 terminated. -issuraised-- in the requested; inte tatice as whether the 14 imsu.unfut suiing siae-carrared - Irae 'or a.A. nivntbe.. T.i47C 1E70.040. Bvn:auaoc it is 15 undisputed that t rem a riethe as a trick terminal has not ceased for purposes of this 16 17 11 provision, the use remains Iawful. 18 Having conceded that the non - conforming use was not abandoned or terminated the t9 City has no authority to place any restrictions on the Property. The Director c*: °s not asked 20 to decide such issues, and the property owner did not agree to have such issues adjudicated Z1 using the code interpretation mechanism. TStc City has never suggested that the 22 I� nonconforming use of the Property has been improperly expanded, TM 18.70.040(I), i 8 P y s . c or 23 1 Wn.2d 1012 (1992). im'otved a land use consultant who attempted to challenge a new zoning code without alleging any spcctikc impact on 1pLr.Isdr. k'1ccii Y OWNER'S RESFONSE TO CITY'S "MOTION FOR SUMMARY JUDGMENT'; CROSS- MOTION FOR SUMMARY _ JUDGMENT • 11 . Roam G. RussBLI. TOA..... „.».4w M!«Ah M.. Stmt g..*.. W..18.41uw ffta•L t. RD41021.7tu pus ue u5 u5: u /p 9 10 17 I8 19 20 I 21= 22 7 24 11 Keen Disend 425 - 392 -7071 moved, TMC 18.70.040(2). Notting in :MC Chapter 13.70 gives the City the authority to rc..trict the scnpr. of existing nonconforming uses, in sum, the City had no authority to place specific restrictions on the future use of the Property. The Hearing Examiner must vacate those portions_o£ the Decision that attempt to. restrict tba.use of the Property and/or define the scope - of thc valid nonconforming use of the Property. B. The .GDR p.;rtiorr.a. ne Property is part of thi ttirger "Prick terminal" use. The City's argument 13 'entirely' Weser ' un w the 'viit: ieous assumption that the truck lermitrai u..e is limited to truck terminal building,' iirid itiat the remainder of the Property is simply a parking Tot: Tie City faiIs to grasp that a truck terminal i5..11. dynamic use that occurs both inside and outside of the building on the CAA' portion of the property. Comrary to the City's assumptions, the outdoor areas of the Property are not merely "parking" arms. Although not defined in the Tukwila code, a "truck terminal" is generally defined in zoning codes to include outdoor areas where trucks arc stored, staged, moved and serviced, and where freight is stored or transferred. See Appendix B. Even the dictionary definition of truck terminal suggested by the City includes outdoor.arees_for "classifying yards" and "storage yards." City 'S AMotinrr at 10. The outdoor areas ca tbe D: operty a e part- of ti c tie k; terminal usc:. 'Muse a: eai art; 25 I 1 .trRU1'.h7tt'Y OWNtIt'S RbSYUNSh TO CITY'S "MOTION FUii 26 I SUMMARY JUDGMENT"; CROSS - MOTION FOR SUMMARY 1 3'JDGMENT -12 used for many different ?rnrlcieg operations including biif iint'iirnited to, (i) moving and backing trucks and semi- trailers, (ii) loading freight fom one trailer to another, (iii) staging trucks that are waiting for drivers, (iv) storing freight, trucks, trailers, and containers. (iv) washing trucks. (v) performing maintenance on trucks and trailers, (vi) unovin5 tires from RoarE G. RUSSELL ATTORNEY AT I,AW Sows t a l k S u m . p . 1 rtug u2 Ub 05:07p Kon Disend .1 1 12 13 14 l5 16 2S 26 1 3 8 9 10 2 f 17 18 19 20 21 22 I 23 I 2� 4 5 6 7 I i 425- 392 -7071 trailer to- trailer, and (vii) warming up *_ruck engines during the winter months. Second Declaration of Rolan Becker, 114 These acti vities a-0121d constitute a "truck terminal" oven if there were no hnlldings on any portion of the Property. The presence or absence of a building is irrelevant to the question of whether these activities are part of the larger truck terminal use. The .entire Property, including the outdoor_ . areas of both the LDR and C/I1 portions of the. Property Aurrently used as truck terr.±ir_al. The question of whether the property owner may platy., ,r srac r es on tire LDR portion F : of the Property is not presented in NI appeal. -gee set tloo t'C) below, Even if portions of the terminal property were only used to park trailers, nothing in the zoning code permits the City to reclassify such portions as a use other than "truck terminal." The Tukwila zoning code does not recognize "parking of semi - tracks find- searti- trick trailers" as a use classif cation separate an.4 arirlrt ft-err "Trriek Trrreina*z ttM! The ter-n "semi - track" is never used in the zoning code, and the defiled use classification for "Commercial Parking" is not applicable to the Property: 18.06.613 Parking, Commercial "Commercial parking" is a use of Land or structure for the parking of motor • vehicles as a comm.crcial enterprise for which hourly, daily or weekly fees are charged. TMC 18.06.613. Even if there were a aopara?e uac classification for "pocking of 3cmi- trucks and semi truck trailers" the City may nut 'classify a,'small portion ofNthe Property as a different use from the main truck" termiriat.' 'This case" is anatokous to City of University Place v. McGuire, 144 Wn.2W640;'30 P. 4S3: (2001). Id that case, a developer sought to_grade a PROPERTY OWNER'S RESPONSE TO SUMMARY JUDGMENT'; CROSS- MOTION 1OR SUMMARY JUDGMENT . 13 Ro!IE 0. RtlssE►,i, ATr.^.r.2.'sr AT LAW 7d Saudi M.n+ Revd Smiths q"..IiinAO la 1206)611.41 p. 14 Hug U2 U5 05:O8p Disend l 2 3 4 5 7 8 9 10 It 12 13 14 I5 16 17 18 19 20 21 23 24 25 26 425 392 - 7071 _ - portion of a larger parcel historically used to mine and and gravel. The .mine was a nonconforming use and the portion at issue had not previously been mined. 144 Wn.2d at 645, The City argued, utter alto, that the grading would be an impermissible expansion of the nonconforming use. The Supreme Court disagreed, holding that the entire parcel was a nonconforming use based on the diminishing assetdoctrine:_ . .. We think that in cases of a diminishing asset.tJie enterprise is "using" all that land which contains the particular asset and which constitutes an' integral part of the operation, notwithstanding the fact thara'partiettlaar.pottitai inay not yet be under actual excavation. It is in the very nature of such business that reserve areas be maintained le#t=vacant'or'dezvoted'tti ittcidehtal uses until they are needed. University Place, 144 Wn.2d at 650-51 (quoting_ Du Page .County. v. Elmhurst Chtcago Store' Co., 18 I11.2d 479, 484, 165 N.E.2d 310, 313 (1964)). . Like the mining use in University Place, the_use. of:a Amick. terminal fluctuates, and portions ofthe Propertymay be put to different uses -or even vacant for periods of time. But entire Property remains psrt of the 'larger' roi7dorifettniitg - 'us& it:t foiig at that usc is not abandoned. The imaginary line that separates the LDR "portion orthe Property 5rora the terminal building does not allow the City to treat the LDR portion as a separate land use. That line was arbitrarily drawn by the City after the Property became a truck terminal, Unless and until the usc of the entire Property is abandoned, the LDR portion ofthe Property is simply a part of the larger "truck terminal" use. In sum, the City's attempt to define and limit the LDR portion of the Property to "parking of semi trucks and senu truck trailers" .ltas nu_ basis in fact ur law. Those provisions of the Decision must be vacated, PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION FOR SUMMARY JUDGMENT'; CROSS- MOTION FOR SUMMARY JUDGMENT -14 Roots G. RUSSELL A2TORNBY AT LAM sm. 'Min :bad ?++Nk. %Wineles P'04 :11+ (7N' 611.110+ p. 15 Rug 02 05 05:08p Ketn Disend 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 II 425 392 - 7071 C. Whether new terminal buildings might be constructed on the LDit portion of the Property is speculative at best and is completely in- eIcvant to this case. The City's attempt- to= tzstricr the —rise= of = ttier t1 portion - of the Property to just "picking" is based mr•arr erroneous ittterpretttioir•ot the • Cady' §' zoning code. The City asset ts: [I]f the LD.R portion of the property were considered to have nonconforming rights for a truck terminal, it would allow the.existine truck.terminal building on the C/LI portion of the property to expand to the LDR portion of the property It would also allow the existing truck terminal t8:b vict:rolished; and relocated on the LDR portion of the property. r City's Mot1on at 11. The City cites iTMC' 18.70.040 as support for this assertion, but TMC 18.70.040(1) prohibits expansion of a nonconforming use, which includes any new structures. Existing nonconforming structures cannot be enlarged. TMC 18.70.050(1). Nonconforming structures that are destroyed_ cannot. be_ _rebuilt TMC 18.70.050(2). Nonconforming structures cannot be moved. :TG.: :18_-79 0(3): ;It is unclear whether the PROPERTY OWNER'S RESPONSE TO CITY'S "MOTION FOR SUMMARY JUDGMENT'; CROSS - MOTION FOR SUMMARY JUDGMENT -15 City is attempting to mislead -the nearing Examieer;orwhetherid�City simply failed to mail its own zoning code. Either way; the City is'simp1q viwrtm Furthermore; the question of whether' new Strlrctures be placed on the LDR portion is speculative and irrelevant. The property owner Ras never argued that it has the right to place new structures on the LDR portion. The owner has never requested a director's interpretation on that issue. The owner has never applied for a building permit for a new building on the LDR portion. In sum, the City's speculative and erroneous assumptions about new construction on the LDR portion do not justify the City's attempt to restrict the use of that portion of the :Property to just "parking." . Those restrictions must_he vacated. Roam G. Russo .x. ATTC '4). Y AT t,AW &Ne t win teed Senn*. Waiting/In 91100314 MC) 62 I.2i 0.i p. 16 Hub ue Ub Ub:09p KeLin Disend 1 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 VII. CONCLUSION ROBIE G. ' WT. .T . . PROPERTY OWNER'S RESPONSE'TO CITY'S "MOTION FOR- SUMMARY JUDGMENT"; CROSS - MOTION FOR SUMMARY JUDGMENT - 36 WSB No. 20579 Attorney for Prpetty'O flier 425 - 392 - 7071 For all these reasons, the Hearing Examiner should dany the City's motion for summary judgment, and vacate those portions of the Decision that attempt to restrict the use of the Property and/or define the scope of the valid nonconforming use of the property. ? l'4. RESPECTFULLY SUBMITTED this l� `day_of August, 2005. Roam G. Russstz. ATTORN 3 ATI,AW 71i LAIth M &.$4. Vu EIOAORIn1 -13 (BA)61.1-2A04 p. 17 Hug ue Ud 05:09p Ker Disend %NS PACIFIC ISI TITLE CI'3inpanynEWashidgtari, APPENDIX Ordcrlek484560 425-392-7071 Rivertonitn:td Tr. • • • - V�luuie ITN& 36 WORTANT: lsyKJtrFlf&f50y It rs Eliiiished coma:kite to locate the land indicated lirreon with reference to streets and other land. No liability is =sinned by reason of feirshee hereon. P. 18 hu Ub:09p Ke an Disend 18.08.585 Truck terminal. 425 - 392 -7071 Definition of ii Terminal' focal codes. Truck Teriniiial: Ally strticiurc land devotedprutcipatly to the - servicing, ft :cling, repair, storage, sales and/or leasing of two or inore large trucks or similar heavy equipment such as tractor - trains or tandem . ortri axle dump trucks or gcading_egyipcnent; or_any_structure or land devoted principnlljy"to any activity invvlvuug x sub tantial and routine traffic consisting of trucks or passenger buses, such as a gasoline or fuel oil distributor; cfretght of shipping business; a biva dot, a movirig•�_ business, or similar activities, but not including other principal uses specified' in a zoning dittrict where a truck ti:titiiiiar is pettt►itted. Montgomery County, Virginia Zoning Ordinances, Chapter 10, Article VI, "Definitions" Truck To minat:AAtt area or structure where trueki lbad andunload goods„ products, cargo, materials and/or freight and where the same may be broken down or . aggregated lute smalleir or xarger loads r'tiriransfer to, other motor vehicles or modes of transportation or to otber points or junctions: T6c ddfuiition incrud d"tstiibution and'vvarehdusing facilities. South Middfeicin aWtis"lrtabmng e m : A "truck "shalliiictude the follbwuig A. A facility used by trucks which provides for the storage, maintenance, and/or service of said nick's ;or B. A freight transfer station whereby.gQods and products are transferred, often directly, from. one vehicle to another without the storage of such foods and gtt vtra icrm$asis within a warehoivae'biuildijg. Union City, Csdifouttist Zoning_Detinitiona 12.35 Truck Terminal: A building or area in *Ercli fleightbrought by truck is assembled and/or stored for routing and reshipment or in which semi- trailers, including tractor and/or trailef uniis, and other trucks are parked or stored. Amherst, Mass. Zoning Bj,raws, Article 12. Defiiitions -APPEND: .. p. 19 Hug ue U5 Ub:10p 12 14 15 16 17 18 1 I9 I 20 21 I 22 J 23 7.4 25 26 II 1 I 21 3 4 5 II 6 71 8 1I „II I � Ke an Disend In re CODE INTERPRETATION by the CITY OF TUKWILA, DIRFt'TOR nF COMMUNTTY DEVELOPMENT - SECOND DECLARATION OY ROLAN BEGtMR RE: USE OP TRUCK TERMINAL • BEFORE THE BEARING EXAMINER OF THE CITY OF TUKWILA for Property Located At 12677 EAST MARG AL..WAY SOUTH TUKWILA, WASHINGTON . NO_ L04-o26. -- . 425 - 392 -7071 _. _ . er, � OF ROLAN BECKER RE: USE OF 7, K- TtPilNAL ROLAN BECKERihereby declares as follows: 1. I nrn over the age of 18 years, competent to testify. and .1 have personal knowledge of the it cts stated herein. 2. The Property located at 12677 East Marginal Way South Tukwila, WA, has been used as a truck terminal for many years. 3. The truck terminal includes both a building and lards: outdoor.area.Q around the building. The outdoor areas of the truck tetnttnal _ruerehe traad.for "parking." 4. The outdoor areas amused for many_diffrrPnr trucking operations including, but not limited to, (i) m6vinp,. baeldng,trucks and. semi -mil ( ng freight from one trailer to another, ( iii) sta$ipa trucks *stare -w ng#ar_->itivgrs {is=) storing freight, tracks, malt AITORNeV ATUW 3001141.41 SUM , k *' dtIcxeEwa, f 0$MJ7I4 (74 sSIS10t . 1 t r : 1 p. 20 Hug U2 05 05:1Op Ke• :n Disend 1 2 3 4 5 6 7 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SECOND DECLARATION OF ROLAN RECKER RE: USE OF TRUCK TERMINAL - 425 -392 -7071 trailers, and containers, (iv) washing trucks, (v) performing maintenance on trucks and trailers, (vi) warming up trunk during the 'winter months, and (vii) many outer uses commonly associated with truck terminals. Signed this f d y of August, 2005, at Seattle, King County, Washington. ROLAN BEOKER ' .. Room O. 1 U335L.1. ATTORNEY AT LAM IS Seal. 111+4 One T....% .1114..... ann..st. p.21 Hug U2 U5 05:lop 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 Ke• Disend Tn rr COT)F.1N'TERPARTA.2'JOl by the CITY OFTUIMEX D1REMTOR OF COMMUNITY DEVELOPMENT for Property Located at 12677 EAST MARGINAL WAY SOUTH TUKWILA, WASIDNOTON. .... v 4\ 1139 BEFORE THE HEARING EXAMINER OF THE.CITY OF TUKWILA NO LO4-026' 425 - 392 -7071 DECLARATION CIF WORT G: RUSSELL RE: USE OF TRUCK TERMINAL ROBtE G. RUSSELL hereby-declares as follows: 1. I am over ttte 18 "years, competent' to testify, and I have personal' - knowlcdgc of the facts stated - herein. 2. I am counsel of record .for the appellants, both the former property owner, the Becker Family Revocable- Living Trust ( "Trust'-'); and the new owner, C &D Welts, LLC d/b /a Wells Trucking & Leasing. 3. A true and correct copy of the Notice of Decision dated January 28, 2005, is attached hereto as Exhibit A. 4. A tnie and correct copy of the lease to Becker Trucking. dated April 1, 1997, is attached hereto as Exhibit B. L. .. DECLARATION OF RO811< G US$SS$ ;3: s RE: USE OP TRUCK TERMINAL - L Ro>wlz t3_fuss!LL ATTORNEY AT LAW 70 Sores Mitt Snag Tactic. WmAlifi6n teed) p. 22 Hug U2 U5 05:1lp Ke' on Disend i 2 3 4 5 6 7 8 9 10 11 12 13- 14 13 16 17 18 19 20 21 22 23 24 25 5. A true and correct copy of the Declaration of Rolan Becker dated December 21, 2004, is attached hereto as Exhibit C. 6. A true and correct copy of the Declaration of Patrick Becker dated January 18, 2005, is attached hereto as Exhibit D. 7. A. true and correct copy Of the Declaration of Clayton Betz dated November 29, 2004, is attached hereto as Exhibit E. S. A true and eorrect_capy. of n..tettcr from..thc Cites Auwl,cy to my office dated August 27, 2004 is attaehed_bereto asExhibitF. = : . . 9. A true atc:coircct'wpy vfalemrfrom t ffr toile City Attorney dated ' September 13, 2004 It f Witt as G. • • ... Signed this -k d1<yofAligust; 2U01Tat Seattle. K .: Cfluinty, Washington, DECLARATION OF ROME-G. R SSBLI.. 26 RE: USE OF TRUCK TERMINAL - —ROBE .....ROBE G RUSSELL • 425 - 392 -7071 p.23 Roatr G ROSSRLL ATTOANSY AT LAW 7t so,italn Seca swat. w..eo!ia•ssu 4 4 0_ 114) Ptc \)„,v(Akr-(\ \i DNA Off ( JUL.28.2005 8 :44AM HEARING EXAMINER NO.155 P.1 /2 COPY ALSO MAILED: FACSIMILE COVER PAGE DATE: July 28, 2005 SENT FROM FAX NUMBER 684 -0536 TO: SHELLEY M. KERSLAKE BRANDON MILES ROBIE RUSSELL 425 392 -7071 206 431.3665 206 621-2104 REGARDING; L-04 -026 A total of "pages (including this page) have been transmitted. If you do not receive all pages, please contact us by telephone at 684 -0521. Sent by ,Mvia Williams Message; JUL.28.2005 8 :44AM HEARING EXAMINER NO.155 P.2 /2 In the Matter of the Notice of Appeal of BECKER FAMILY REVOCABLE LIVING TRUST BEFORE TEE HEARING EXAMINER CITY OF TUKWILA from a Code Determination by the Director of the Department of Community Development, concerning property addressed as 12677 East Marginal Way South File Number: L- 04-026 ORDER The Department filed a motion for summary judgment on this matter on July 19, 2005. The Hearing Examiner issued an order that was faxed to the parties on July 21, 2005, confirming that under HER 2.11, the appellant had seven days (until July 26, 2005) to respond to the motion, and that the Department would be permitted to file a reply to the response by August 2, 2005. The appellant requests additional time to file its response, since it was not aware of the Rules, and requests a briefing schedule to allow it to respond to the Department's reply. The Department opposes the requests for a continuance and briefing schedule. The appellant has also filed a motion to substitute C&D Wells, LLC as appellant. The appellant is hereby granted until August 2, 2005, to file its response to the motion. The Department shall have until August 9, 2005, to file a reply to the response and to file a response to appellant's motion to substitute. Any reply by the appellant to the Department's response on the motion to substitute should be filed by August 16, 2005. The matter will in the meantime be rescheduled for hearing in late August, by separate order to follow. Entered this day of July, 2005. Anne Watanabe, Hearing Examiner Pro Tem City of Tukwila P.O. Box 94729 Seattle, WA 98124 -4729 (206) 684 -0521 FAX: (206) 684 -0536 In the Matter of the Notice of Appeal of BECKER FAMILY REVOCABLE LIVING TRUST from a Code Determination by the Director of the Department of Community Development, concerning property addressed as 12677 East Marginal Way South BEFORE THE HEARING EXAMINER CITY OF TUKWILA File Number: L- 04-026 The Department has moved for summary judgment and requests that this be considered without oral argument. Under Hearing Rule 2.11, the appellant has until July 26. 2005, to file a response. If the Department wishes to file a reply to the response, it should be submitted by August 2, 2005. An order will be issued shortly after that date. The hearing on this matter is currently scheduled for July 29, 2005; that hearing is stricken to permit time for issuance of the order on the motion. If the Department's motion is not granted, the hearing will be rescheduled to a date in August (after consulting with the parties as to availability) (144".1 Anne Watanabe, Hearing Examiner Pro Tem City of Tukwila P.O. Box 94729 Seattle, WA 98124 -4729 (206) 684 -0521 FAX: (206) 684 -0536 MICHAEL R. KENYON BRUCE L. DISEND SANDRA S. MEADOWCROFr SHELLEY M. KERSLAKE HEIDI L. BROSIUS KERRI A. BERGLAND MINDY A. RoSTAMI Anne Watanabe Hearing Examiner Pro Tem City of Tukwila 700 Fifth Avenue, Suite 4000 Seattle, WA 98104 VIA LEGAL MESSENGER Re: Dear Ms. Watanabe: Enclosures cc: Robie Russell William Crittendo} Brandon Miles ✓ _�ENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 (206) 628 -9059 FAX (425) 392 -7071 July 19, 2005 Becker Family Revocable Living Trust v. City of Tukwila No. L04 -026 Hearing Date: July 29, 2005 Enclosed please find the City of Tukwila's Motion for Summary Judgment and supporting declaration. The City requests that this motion be considered without oral argument. If you have any questions or concerns do not hesitate to contact me at 206 - 433 -1846 or 425 -392- 7090. G:\APPS \CIV\TUKWILA\Becker\LTR - HE - summary judgment motion.doc/SAIJ07 /19/05 Very truly yours, Shelley Ker SERVING WASHINGTON CITIES SINCE 1993 LC ReCeve VU 0 2005' ariP M�AIT LACEY L. MARTIN PETER B. BECKWITH JOSEPH P. LOUGHLIN THOMAS J. GUILFOIL RENEE G. WALLS ROMAN S. DIXON Any part of this ale must be reviewed by City Attorney prior to release 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 TUKWILA BECKER FAMILY REVOCABLE LIVING TRUST, vs. CITY OF TUKWILA, a municipal corporation, yew mor Plaintiff, Defendant. I. RELIEF REQUESTED COMES NOW the Defendant, City of Tukwila ( "Cit)' ), a municipal corporation, by and through its attorneys, Shelley Kerslake and Kenyon Disend, PLLC, and requests dismissal of Plaintiff, the Becker Family Revocable Living Trust's ( "Becker Trust' ), administrative appeal, and submits this memorandum in support thereof. II. STATEMENT OF FACTS The Becker Trust previously owned property located at 12677 East Marginal Way South, Tukwila, Washington ( "Subject Property." ). The property was sold on April 29, 2005. See Exhibit 1 to Declaration of Shelley Kerslake. The City annexed the Subject Property in 1989 as part of the Riverton Annexation. Kerslake Declaration, Ex. 2. King CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 1 G:IAPPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAL07 /19/05 NO. L04 -026 CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT KENYON DISEND, PLLC THE MCNICIPPLLAwFIRm 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 County's zoning of this property at the time of annexation was Light Manufacturing with Conditions ( "MLP' ). Kerslake Declaration, Ex. 3 at Attachment F. Under the City's zoning code, the eastern portion of the Subject Property is zoned Commercial/Light Industrial ( "C/LI') and the western portion is zoned Low Density Residential ( "LDR' ). Prior to annexation and thereafter, Becker Trucking used the eastern portion of the Subject Property, zoned C/LI, to manage and operate the truck terminal. Becker Trucking, as well, used the LDR zoned portion of the Subject Property to park semi - trucks and trailers in association with the truck terminal. Pursuant to the City's zoning code, operation of a truck terminal within a C/LI zone is an outright permitted use. The truck terminal, however, did not extend to the LDR portion of the property. Historically the LDR portion of the property was used only for parking associated with the use on the CL/I portion of the property. Kerslake Declaration, Ex. 3. Thus, for purposes of determining the scope of the nonconforming rights the City considered the parking on the LDR portion of the property the nonconforming use to which rights had vested. On or about April 17, 2002, Becker Trucking relocated its truck terminal to 6350 South 143rd Street, Tukwila, Washington. Shortly thereafter, on December 31, 2002, Becker Trucking sought to again relocate its truck terminal back to the Subject Property. In seeking to do so, it applied for a business license to operate an "unmanned truck termina!' at the Subject Property. Because the Subject Property remained vacant for several months, the City spent ample time researching whether the nonconforming rights on the LDR parcels had terminated. Unsuccessful in gathering information regarding previous and now contemplated uses of the LDR zoned parcels from Becker Trust and its I TMC§ §18.10,18.30. CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 2 G:\APPS \CN\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAL/07 /19/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 tenant, Becker Trucking, the City denied the application. Specifically, the City concluded that absent proof to the contrary, use of the LDR zoned parcels for parking constituted a nonconforming use that ceased when Becker Trucking relocated to 6350 South 143rd Street, Tukwila, Washington as the use had ceased to exist a period of more than six consecutive months. On September 14, 2004, Becker Trust requested the City issue a formal code interpretation pursuant to TMC § 18.96.020 regarding permitted uses on the Subject Property. Specifically, Becker Trust requested that the City's code interpretation address whether a nonconforming right existed on the Subject Property with respect to the parcels zoned LDR. Kerslake Declaration, Ex. 4. Having finally obtained information from Becker Trust and its tenants regarding previous uses on the LDR zoned parcels, on January 28, 2005, the City's Department of Community Development issued a code determination concluding that a nonconforming right, indeed, existed on the LDR zoned portion of the property. The City likewise concluded that the nonconforming use did not cease or otherwise terminate when Becker Trucking relocated its business to 6350 South 143rd Street, Tukwila, Washington as, after repeated requests, Becker had produced evidence demonstrating continued use of that portion of the property for parking, even though the trucking operations had moved elsewhere. On February 10, 2005 Becker Trust appealed the City's code determination to the City Hearing Examiner challenging the City's authority to define the scope of an existing 2 TMC § 18.06.590 defines a nonconforming use as the use of land which does not conform to the use regulations of the district in which the use exists. Under TMC 18.70.040 a nonconforming use is permitted to continue to operate provided the use remains lawful and is subject to the restrictions set forth in TMC 18.70.040. CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 3 GAFFS \CIV\TUKWILA\ Becker \PLD - Becker - Summary Judgment Motion.doc/SAL/07 /19/05 KENYON DISEND, PLLC THEMUMC/PAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 4 G:IAPPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAL/07 /19/05 nonconforming right. On April 19, 2005, the City received notice that Becker Trust sold the Subject Property. Despite no longer owning the property, Becker Trust nonetheless maintains this appeal. III. QUESTIONS PRESENTED A. Whether this appeal should be dismissed when appellant has not asserted or demonstrated any harm suffered, as required by TMC 18.116.030(3)? B. Whether this appeal should be dismissed when the Becker Family Revocable Living Trust no longer owns the Subject Property, is not a real party in interest and therefore lacks standing to bring this appeal? C. Whether the decision of the Department of Community Development should be upheld when the property that is the subject of this appeal is divided into two zoning designations (C/LI and LDR) and the LDR portion of the property does not contain a truck terminal and that portion of the property has historically been used for parking? IV. STANDARD ON MOTION FOR SUMMARY JUDGMENT Summary judgment is to be granted when there is no genuine issue as to any material fact, and the moving party is entitled to summary judgment as a matter of law. CR 56(c); Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). If the court, after considering the evidence in the light most favorable to the nonmoving party, is satisfied that the pleadings, affidavits, and depositions on file demonstrate that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Camer v. Seattle Post Intelligencer, 45 Wn. App. 29, 35, 723 P.2d 1195 (1986). While a material fact is one upon which the outcome of the litigation depends, Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 737, KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 844 P.2d 1006 (1993), the trial court may decide such factual issues as a matter of law and a motion for summary judgment if there is only one conclusion reasonable minds can reach. Michelsen v. Boeing Company, 63 Wn. App. 917, 920, 826 P.2d 214 (1991). Once the moving party has shown that there are no material facts for a jury or judge to decide, the party opposing the motion for summary judgment must respond with more than conclusory allegations, speculation or argumentative assertions of the existence of unresolved factual issues. Id. at 920 (citing Baldwin v. Sisters of Providence in Washington, Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989)). V. LEGAL ANALYSIS A. Becker Trust's Appeal Should Be Dismissed Because Its. Appeal Does Not Articulate the Harm Suffered By the Code Interpretation As Required By TMC 18.116.030(3). TMC § 18.96.020 governs code interpretations and TMC § 18.90.010 provides an appeal process for such interpretations. Specifically TMC § 18.90.010 states that "[a]ny person aggrieved by any interpretation of this title by the Director may appeal the Director's interpretation to the Hearing Examiner!' Emphasis added. Similarly, TMC § 18.116.030(3) provides that every notice of appeal shall state "specific errors of fact or errors in application of the law in the decision being appealed; the harm suffered or anticipated by the appellant, and the relief sought!' Emphasis added. In this case, Becker Trust requested that the City provide a code interpretation regarding whether a nonconforming right existed on the LDR zoned parcels and whether this right terminated. The City concluded a nonconforming right, in fact, existed on the 3 "All interpretations of this title shall be made by the Director or his delegate. If requested, interpretations shall be reduced to writing and an orderly retrievable record shall be kept" TMC 18.90.010. CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 5 G:\APPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAU07 /19/05 KENYON DISEND, PLLC Ti THE MUNICIPAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 LDR zoned parcels and that this right had not terminated. Oddly, Becker Trust now appeals the City's favorable determination. Becker Trust is neither the current owner of the Subject Property nor an aggrieved party as required under TMC § 18.96.020. The Tukwila Municipal Code does not define "aggrieved persod' thus we turn to the dictionary definition and Washington case law for guidance. Shoreline Community College v. Employment Security, 120 Wn.2d 394, 842 P.2d 938 (1992). Black's Law Dictionary defmes a person "aggrieved' as: "a party whose personal, pecuniary, or property rights have been adversely affected by another person's actions :' Black's Law Dictionary, Seventh Edition, pg. 1146. Because a local jurisdiction's interpretation of its ordinances is encompassed by the Land Use Petition Act ( "LUPA' ), LUPA's standing requirements are likewise instructive. Chelan County v. Nykreim, 146 Wn.2d 904, 929, 52 P.3d 1 (2002). LUPA, codified in Chapter 36.70C RCW, defmes an "aggrieved party' as: A person is aggrieved or adversely affected only when all of the following conditions are present: (a) The land use decision has prejudiced or is likely to prejudice that person; (b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision; (c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and (d) The petitioner has exhausted his or her administrative remedies to the extent required by law. RCW 36.70C.060(2). In other words, to satisfy the standing requirements under LUPA of being "aggrieved or adversely affected by the land use decision," objectors must allege facts showing that they would suffer an "injury-in -fact' as a result of the land use decision; i.e., objectors must show they personally will be specifically and perceptibly CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 6 G:\APPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAU07 /19/05 KENYON DISEND, PLLC THE MUNICIPAL Law FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 harmed by the proposed action. RCW 36.70C.060(2); Save a Valuable Env 't v. Bothell, 89 Wn.2d 862, 866, 576 P.2d 401 (1978), review denied, 119 Wn.2d 1012, 833 P.2d 386 (1992). The City's code interpretation neither prejudices nor is likely to prejudice Becker Trust since it has not been denied use of the Subject Property and, thus, is unable to demonstrate any harm suffered. In this case, the City acquiesced that a nonconforming right exists on the LDR zoned parcels and that such right had not been terminated. The plaintiff's dispute as to the scope of the nonconforming right does not demonstrate injury because the City has not denied Becker Trust use of the Subject Property. Rather, the City's code interpretation clearly authorizes Becker Trust to use or lease the LDR zoned parcels consistent with its existing nonconforming rights and, more importantly, consistent with the historical use of that portion of the property. These nonconforming rights include parking in association with use of the truck terminal located on the CUL zoned parcels. The City need not, nor should not address hypothetical uses associated with the expansion or modification of a nonconforming right. Maintaining this appeal renders the City speculating as to what uses Becker Trust contemplates in addition to the existing nonconforming rights; that is not an appropriate use of the appellate process. Should the property owner have a contemplated use for the LDR portion of the property, at that point, a code interpretation would be in order to address that new use to determine if the proposal is within the nonconforming use rights. The City defined the scope of the nonconforming rights consistent with the previous use of the LDR zoned parcels as presented by Becker Trust and its tenants. The CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 7 G:WPPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAU07 /19/05 KENYON DISEND, PLLC THE MuNiczPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 8 G:\APPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAL/07 /19/05 City has neither denied Becker Trust nor the property's current fee owner use of the Subject Property. Rather, the City confirmed existence of a nonconforming use in favor of Becker Trust. Should Becker Trust seek to use the LDR zoned parcel contrary or in addition to the existing nonconforming use, such uses must comport with those permitted in a LDR zone. Thus, Becker Trust has neither applied for nor been denied a request to use the LDR zoned parcels in a manner inconsistent with the existing nonconforming rights. Accordingly, Becker Trust has no redressable injury. Having neither a redressable injury nor sustained prejudice, Becker Trust does not constitute an aggrieved party as required by TMC § 18.90.010 and has not suffered harm as mandated by TMC 18.116.030(3). B. Becker Trust's Appeal Should Be Dismissed Because It Lacks Standing To Prosecute This Appeal. Becker Trust no longer owns the Subject Property. Kerslake Declaration, Ex. 1. No longer owning the Subject Property, Becker Trust neither does, nor could in the future demonstrate injury or prejudice. If injury is merely conjectural or hypothetical, there can be no standing. United States v. Students Challenging Regulatory Agency Procedures (SCRAP) 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). Having sold the Subject Property, Becker Trust fundamentally lacks standing to challenge a code determination regarding property it no longer owns. Id. at 687 (Standing is a constitutional doctrine designed to assure that the plaintiff has a direct stake in the controversy.) See also, Trepanier v. City of Everett, 64 Wn. App. 380, 824 P.2d 524 (1992). Having neither a 4 A nonconforming use in existence when a zoning ordinance is enacted cannot be changed into some other kind of a nonconforming use. Coleman v. City of Walla Walla, 44 Wn.2d 296, 300 -01, 266 P.2d 1034 (1954) (nonconforming rooming house cannot be changed to fraternity house); Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 150- 51, 995 P.2d 33 (2000) (legal nonconforming use as a church could KENYON DISEND, PLLC TIE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 redressable injury nor sustained prejudice, Becker Trust does not constitute an aggrieved party as required by TMC § 18.90.010. Thus, dismissal is appropriate. C. Should the Examiner Find That the Appeal May Proceed, the Decision of the Department of Community Development Should Be Upheld. To begin, a nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. Andrew v. King County, 21 Wn. App. 566, 568 P.2d 509 (1978). Nonconforming uses are not favored in law, and it is only to avoid injustice that zoning laws accept them. Id. at 570. To qualify as a nonconforming use in the first instance, the use in issue must lawfully exist on the date specified in the zoning code. Anderson v. Island County, 81 Wn.2d 312, 321, 501 P.2d 594 (1972). If the nonconforming use is subsequently abandoned or discontinued, the right to continue it as a nonconforming use comes to an end. Andrew, supra at 571. This case began as a request for a code interpretation regarding whether or not the nonconforming rights on the subject property had been abandoned. A code interpretation is a matter of law. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). In this case, the material facts are not in dispute, and Summary Judgment is appropriate for disposition of this matter. Preliminarily, in order to determine whether a nonconforming right has been abandoned, the scope of the nonconforming right must first be determined. The record is clear that there is a truck terminal on the C/LI portion of the property and parking on the LDR portion of the property. Kerslake Declaration, Ex. 3 and attachments not be resumed after intervening years as art school); Shields v. Spokane Sch. Dist. No. 81, 31 Wn.2d 247, 255, 196 P.2d 352 (1948) (nonconforming elementary school cannot change to trade school). CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 9 G:\APPS \CIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAU07 /19/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 10 G:WPPS \CIV\TUKWILA1Becker\PLD - Becker - Summary Judgment Motion.doc/SAL/07 /19/05 referenced therein. Becker Trust urges the Examiner to consider the entire site to have nonconforming rights for a "truck terminal" This is simply not appropriate given the facts of this case. To begin, in order to adequately address the issue of nonconformity the City must determine what is allowed outright in the zone as well as what nonconforming rights were granted to the property when annexation occurred. As previously stated, a truck terminal occupies the C/LI portion of the property. Becker Trust would have the City extend that use to the LDR portion of the property, which does not contain any structure. The Tukwila Municipal Code does not define truck terminal. In the absence of a statutory definition, the rules of statutory construction dictate that we give words their ordinary dictionary definition. Shoreline Community College v. Employment Security, 120 Wn.2d 394, 842 P.2d 938 (1992). Webster's Third International Edition Dictionary defines truck terminal "as either end of a carrier line with classifying yards, docks and lighterage facilities, management offices, storage yards and freight and passenger stations" The LDR potion of this site was not historically used for any of these indicia of truck terminal usage. The record is clear; the property was historically used for parking accessory to the building on the C/LI portion of the property. TMC § 18.06.560 defines a nonconforming use as the use of land which does not conform to the use regulations of the district in which the use exists. Under TMC § 18.70.040 a nonconforming use is permitted to continue to operate provided the use remains lawful and is subject to the restrictions set forth in TMC § 18.70.040. A nonconforming use is defined in terms of the property's lawful use established and maintained at the time the zoning was imposed. Meridian Minerals Co. v. King KENYON DISEND, PLLC THEMUNICIPAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 County, 61 Wn. App. 195, 207, 810 P.2d 31 (1991). Nonconforming use in existence when a zoning ordinance is enacted cannot be changed into some other kind of a nonconforming use. Coleman v. City of Walla Walla, 44 Wn.2d 296; 300 -01, 266 P.2d 1034 (1954) (nonconforming rooming house cannot be changed to fraternity house). See, also, Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 150- 51, 995 P.2d 33 (2000) (legal nonconforming use as church could not be resumed after intervening years as art school); Shields v. Spokane Sch. Dist. No. 81, 31 Wn.2d 247, 255, 196 P.2d 352 (1948) (nonconforming elementary school cannot change to trade school). Given that the LDR portion of the Subject Property was never used for a "truck termina!' at the time the zoning was imposed, it would be impermissible to expand the nonconforming use in that manner. The record is clear that prior to annexation by the City of Tukwila, the LDR portion of the property was used solely for parking vehicles associated with the outright permitted use on the C/LI portion of the property. The use of that property has continued to the present time. The City correctly concluded that although there was a break in use of the truck terminal on the C/LI portion of the property, the owner continued to park vehicles on the LDR property, thus the nonconforming right did not extinguish. To reach the result submitted by Becker Trust would lead to results inconsistent with the Tukwila Municipal Code. For example, if the LDR portion of the property were considered to have nonconforming rights for a truck terminal, it would allow the existing truck terminal building on the C/LI portion of the property to expand to the LDR portion of the property. TMC 18.70.040. It would also allow the existing truck terminal to be demolished and relocated on the LDR portion of the property. Id This would clearly be CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 11 G :\APPS \CIV\TUKWILA\Becker\PLD - Becker Summary Judgment Motion.doc/SAL07 /19/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 an expansion of a nonconforming right and contrary to well established law in this area. Meridian Minerals Co. v. King County, 61 Wn. App. 195, 810 P.2d 31 (1991). V. CONCLUSION The City issued a code interpretation consistent with that requested by the Becker Trust. Becker Trust neither currently owns the Subject Property nor has been denied use of its previously owned property. Becker Trust fails to show the City's determination caused it redressable injury or prejudice. Having failed to do so, Becker Trust is not an aggrieved person and consequently has no standing to appeal the City's determination. Accordingly, the City respectfully requests dismissal of Becker Trust's appeal. In the alternative, the City requests that its decision be affirmed. DATED this day of July, 2005. CITY OF TUKWILA'S MOTION FOR SUMMARY JUDGMENT- 12 G:UIPPSICIV\TUKWILA\Becker\PLD - Becker - Summary Judgment Motion.doc/SAL07 /19/05 KENYON DISEND, PLLC By ey - !slake WSBA No. 21820 Attorneys for City of Tukwila KENYON DISEND, PLLC Tiw MUNICIPAL LAwFIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 BEFORE THE HEARING EXAMINER FOR THE CITY OF TUKWILA BECKER FAMILY REVOCABLE NO. L04 -026 LIVING TRUST, CITY OF TUKWILA, a municipal corporation, matter. vir vs. Plaintiff, Defendant. DECLARATION OF SHELLEY KERSLAKE I, Shelley Kerslake, declare and state: 1. I am the City Attorney for the City of Tukwila and attorney of record in this 2. Attached hereto are true and correct copies of the following documents: Exhibit 1: Letter from William John Crittendon to Shelley Kerslake and Brandon Miles dated April 19, 2005. Exhibit 2: City of Tukwila Ordinance No. 1508 approved March 27, 1989. Exhibit 3: Staff Report to Hearing Examiner Prepared July 12, 2005. Exhibit 4: Letter from Robie G. Russell to Shelley Kerslake and Steve Lancaster dated September 13, 2004 regarding Request for Code Interpretation. DECLARATION OF SHELLEY KERSLAKE - 1 G:WPPSICI V\TUKWILA\Becker\PLD -Becker - Kerslake Declaration.doc/SAU07 /19/0 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this 14 day of July, 2005 at Issaquah, Washington. DECLARATION OF SHELLEY KERSLAKE - 2 G:\APPS \CIV\TUKWILA\Becker\PLD - Becker - Kerslake Declaration.doc/SAU07 /19/05 KENYON DISEND, PLLC THE MUNICIPAL Law FIRM 11 FRONT STREET SOUTH IssAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 EXHIBIT 1 04/19/2005 11:12 206361597q WILLIAM J CRITTENDEN PAGE 01/01 VIA FACSIMILE (425) 392 -7071 Shelley M Kerslake Kenyon Discnd PLLC 11 Front St Issaquah WA 98027 -3820 VIA FACSIMILE 206 - 431 -3665 Brandon Miles City of Tukwila, DCD 6300 Southcenterlilvd Ste 100 Tukwila WA 98188 -8548 cc: Robie Russell Edwin J. Becker W LLIA M JOh N CRITTENDEN • ATTORNEY AT LAW 927 NORTH NORTHLAICE WAY; SUITE 301 SEATTLE WASHINGTON 98103 (206) 361 -5972 FAX: (206) 361 -5973 Wjatttenden @mmcastnet April 19, 2005 Re; Property located at 12677 B. Marginal Way; Hearing Scheduled for April 19, 2005 Sale of Property to C& D Wells, LLC Dear Ms. Kerslake and Mr. Miles: For your information, the property at 12677 E. Marginal Way has been sold to C& D Wells, LLC, and the sale is expected 1.0 close by April 29, 2005. Mr. Russell and myself will continue to prosecute the appeal of the director's interpretation. No action is necessary on your part ery truly yours, Will John Crittenden EXHIBIT 2 8903300381 WASHINGTON ORDINANCE NO. / AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, ANNEXING CERTAIN REAL PROPERTY COMMONLY KNOWN AS THE RIVERTON ANNEXATION AREA, ADOPTING ZONING AND LAND USE REGULATIONS FOR THE ANNEXED AREA, PROVIDING THAT SAID ANNEXED AREA SHALL NOT BE REQUIRED TO ASSUME ANY SHARE OF THE CITY'S EXISTING INDEBTEDNESS, AND ESTABLISHING AN EFFECTIVE DATE. c0 M O O o WHEREAS, the City Council of the City of Tukwila received a petition certified as sufficient by the King County Prosecuting Attorney, calling for an election to vote CP c0 upon annexation of certain unincorporated territory contiguous to the City, and WHEREAS, the City Clerk of the City of Tukwila determined that the signa- tures on the petition were suffident and filed the Certificate of Sufficiency with the City Council, and WHEREAS, the City Council by Resolution. 1080, passed July 18, 1988, approved the proposed Riverton annexation area election- method annexation, and WHEREAS, the SEPA responsible official for the City issued a Declaration of Non - Significance, and WHEREAS, pursuant to the provisions of RCW 35A.14.330 and 35A.14.340, the City Council adopted Ordinance Nos. 1479,1480 and 1481, providing for zoning and land use regulations for the area to become effective upon annexation, and WHEREAS, the King County Boundary Review Board approved the annexa- tion in File No. 1537, dated December 8, 1988, and WHEREAS, the City Council in Resolution 1095, passed December 12, 1988, approved the proposed Riverton annexation area election method and requested an election date, and WHEREAS. pursuant to King County Council Ordinance No. 8818, an election was held in the area proposed for annexation on March 14, 1989, with the results of said election being that the voters approved annexation together with the proposed zoning and land use regulations and rejected assumption of the City's outstanding indebtedness. and WHEREAS, the County Canvassing Board will submit the Statement of Canvass to the King County Council, and the King County Council will enter its finding with regard thereto, and a certified copy of the minutes reflecting such entry will be transmitted, along with the certified abstract of the vote, to the City Clerk, WHEREAS, the City Council has determined to annex the area proposed for annexation without requiring it to assume any portion of the City's existing indebt- edness, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Annexation. The real property known as the Riverton Anmexation Area, more particularly described on Exhibit A attached hereto, and shown on Exhibit B attached hereto, both of which are incorporated herein by this reference as if set forth in full, should be and hereby is annexed to and made a part of the City of Tukwila as of S' 1989, and shall thereafter be subject to the zoning and land use re ations as adopted in City of Tukwila Ordinance Nos. 1479, 1480 and 1481. bectlon 2. Assumption of Indebtedness. Pursuant to the results of the annexa- tion election, the property within the territory annexed hereby shall not be required to assume through assessment or taxes, any indebtedness, bonded or otherwise, contracted prior to or existing as of the effective date of the annexation. Said prop- erty shall be assessed and taxed at the same rate and on the same basis as property within the City to pay for any bonds issued or other debts contracted subsequent to the date of annexation. c Section 3. Effective Date. This ordinance shall be in force and effect five days 0 after publication of the attached Summary which is hereby approved. ch PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASH- c0 INGTON, at a special meeting thereof this 02 70 day of -astrl 1989. Filed with the City Clerk: .5-47- ?? Passed by the City Council: $ - 7 - r7 Published Valley Daily News: 3 -JP' !<'Y Effective Date: 'Sr - 6- P Ordinance Number /3 8 RIVERTON ANNEXATION ORDINANCE Page 2 APPROVED: G. L. Van Dusen, Mayor ATTEST/AUTHENTICATED: Maxln Anderson, City Clerk lrr • EXHIBIT Q RIYERTON PROPOSED ANNEXATION 12 AUG 88 REV. Beginning at the intersection of the east margin of East Marginal Way South and the north line of the Cyrus C. Lewis Donation Claim No. 37 In the southwest 1/4 of Section 10, T23N, R4E, W.M.; thence southeasterly along said east margin of East Marginal Way, 442.30 feet to the south line of Tract 22, Riverside Interurban Tracts as recorded In Volume 10, Page 74 of Plats, Records of King County, WA, and the TRUE POINT OF BEGINNING; thence easterly along said south line of Tract 22 and the easterly prolongation thereof to the west line of the Puget Sound Electric Railway right -of -way; thence southerly along the west line of said right -of -way, 850 feet more or less to a point opposite the south line of Tract 33 of said Riverside Interurban Tracts; thence east along the easterly prolongation of the south line of said Tract 33 to the thread of the Duwamish River; thence along said thread to the east margin of 42nd Avenue South; thence southwesterly along said east margin and the southerly extension thereof 460 feet more or less to the southwest margin of Interurban Avenue South; thence northwesterly along seld southwest margin to an intersection aD with the southerly extension of the west margin of 42nd Avenue co South; CD thence southerly along said west margin of 42nd Avenue South CD contiguous with the Tukwila City Limits as set forth under King cr) County Commissioner's Resolution No. 23309 dated 10 -11 -61 (Tukwila CD Ordinance 276), to the south margin of South 131st Street; aD thence westerly along said south margin and continuing westerly along the north line of Tract 58 of said Riverside Interurban Tracts to the east margin of South 131st Place (East Marginal Way South); thence southeasterly along said east margin and easterly along the north margin of South 133rd Street,respectively, to the west margin of 42nd Avenue South; thence southerly along the southerly extension of said west margin to the south margin of South 133rd Street; thence easterly along the easterly extension of said south margin of South 133rd Street to the east margin of 42nd Avenue South; thence southerly and continuing In a southeasterly direction along the northerly margin of South 135th Street to the northwesterly line of the southeasterly 1.86 acres of Tract 14, in Fostoria Garden Tracts as recorded in Volume 9 of Plats, page 95, records of King County, WAa thence north 40 17' east along said north line 220.32 feet; thence south 49 east, 91.43 feet to the northwesterly line of the southeasterly 0.86 acres of sold Tract 14; 'thence north 40'17 east, a distance of 132.89 feet; thence south 49 ° 43' east, 10 feet; thence north 40 ° 17' east, 119.11 feet ; 1r■p1 41%v -2- . thence southeasterly along the southwest margin of South 134th Street 150 feet more or less to the southwesterly extension of the southeast margin of 47th Avenue South (formerly Adams Avenue); thence northeasterly along said southwesterly extension and southeast margin, respectively, to the west line of Primary State Highway No. 1 condemned under Superior Court Cause No. 618283 records of King County; thence southerly along sald west line to an intersection with the easterly extension of the south line of the Cyrus C. Lewis Donation Claim No. 37; thence westerly along said easterly extension and along said south line, .respectively, to the west margin of Macadam Road South (46th Avenue South); thence southerly along said west margin and continuing south along the west margin of 46th Avenue South to the north margin of South 139th Street (formerly Hill Avenue); thence westerly along said north margin'to the west line of Lot 23 of Block 3 In Riverton Macadam road Tracts, recorded in Volume 15, Page 53 of Plats, Records of King County, WA; thence northerly along said west line to the easterly prolongation of the north margin of South 139th Street; thence westerly along said easterly prolongation and said north line to the east margin of Pacific Highway South (Highway 99); CD thence northerly along said east margin to the thread of the Duwamish River; thence easterly along said thread of the Duwamish River to the west CD I1ne of Section 10, T23N, R4E; C thence southerly along sald west line to the south line of the cD north 1168.66 feet of said Section 10; thence easterly along said south line to the west margin of East Marginal Way South; thence southerly along said west margin to its intersection with the north line of Lot 1 of ,King County Short Plat No. 785018 as recorded under King County Recording No. 8603240930; thence westerly along said north line of Lot 1 and its extension to the Northwest corner of said Short Plat; thence southerly along the west line thereof to the Southwest corner of said Short Plat; thence easterly along the south Ilne of Lot 4 In said Short Plat to the extended east line of Lot 16, Block 4 of Riverton Addition as recorded in Vol. 13 of Plats, Page 36, records of King County, WA; thence southerly along said extension and east line, and the east line of Lot 9 to the north margin of South 124th Street; thence easterly along said north margin and along the easterly prolongation thereof to the east margin of East Marginal Way South; thence southerly along said east margin to the TRUE POINT OF BEGINNING. SUMMARY OF ORDINANCE NO. 1508 AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, ANNEXING CERTAIN REAL PROPERTY COMMONLY KNOWN AS THE RIVERTON ANNEXATION AREA, ADOPTING ZONING AND LAND USE REGULATIONS FOR THE ANNEXED AREA, PROVIDING THAT SAID ANNEXED AREA SHALL NOT BE REQUIRED TO ASSUME ANY SHARE OF THE CITY'S EXISTING INDEBTEDNESS, AND ESTABLISHING AN EFFECTIVE DATE. On March 27 1989 , the City Council of the City of Tukwila, passed Ordinance No. 1508 , which provides as follows: Annexes to the City of Tukwila the area described therein, known as the Riverton Annexation area, effective April 15, 1989, provides zoning and land use regulations for such area, provides that said area shall not be subject to prior City indebtedness, and establishes an effective date. The full text of this ordinance will be mailed without charge to anyone who submits a written request to the City Clerk of the City of Tukwila for a copy of the text. Approved by the City Council at its meeting of March 27, 1989. PUBLISH: Valley Daily News DATE: March 31, 1989 SENT: March 29 1989C' TO: FAX NUMBER - 854 -1006 FROM: CITY OF TUKWILA 6200 Southcenter Blvd. Tukwila, WA 98188 BY: Maxine Anderson, City Clerk 433 -1800 Maxinee n a son, City erk RIVERTON ZONING latm R -1 SINGLE FAMILY RESIDENCE 7200 R -1 SINGLE FAMILY RESIDENCE 12,000 R -4 LOW APARTMENTS RMH MULTIPLE RESIDENCE HIGH DENSITY C -1 COMMUNITY RETAIL BUSINESS C -2 REGIONAL RETAIL BUSINESS C -M INDUSTRIAL PARK P -O OFFICE -• M -1 LIGHT INDUSTRY M -2 HEAVY INDUSTRY ADOPTED BY ORD. 1480.1 SUMMARY OF ORDINANCE NO. 1508 AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, ANNEXING CERTAIN REAL PROPERTY COMMONLY KNOWN AS THE RIVERTON ANNEXATION AREA, ADOPTING ZONING AND LAND USE REGULATIONS FOR THE ANNEXED AREA, PROVIDING THAT SAID ANNEXED AREA SHALL NOT BE REQUIRED TO ASSUME ANY SHARE OF THE CITY'S EXISTING INDEBTEDNESS, AND ESTABLISHING AN EFFECTIVE DATE. On March 27 1989 , the City Council of the City of Tukwila, passed Ordinance No. 1 508 , which provides as follows: Annexes to the City of Tukwila the area described therein, known as the Riverton Annexation area, effective April 15, 1989, provides zoning and land use regulations for such area, provides that said area shall not be subject to prior City indebtedness, and establishes an effective date. The full text of this ordinance will be mailed without charge to anyone who submits a written request to the City Clerk of the City of Tukwila for a copy of the text. Approved by the City Council at its meeting of March 27, 1989. PUBLISH: Valley Daily News DATE: March 31, 1989 SENT: March 29, 1989C. TO: FAX NUMBER - 854 -1006 FROM: CITY OF TUKWILA 6200 Southcenter Blvd. Tukwila, WA 98188 BY: Maxine Anderson, City Clerk 433 -1800 Q,a�iycc� axine Anderson, City lerc EXHIBIT 3 City/ of Tukwila Department of Community Development Steve Lancaster, Director STAFF REPORT TO HEARING EXAMINER Prepared July 12, 2005 FILE NUMBER: L04 -026 APPLICATION: Appeal of Code Interpretation issued by the Director on February 28, 2005. SITE ADDRESS: 12633 and 12677 East Marginal Way S, King County Parcel Numbers 734560 -0685 and 7345600766. PROPERTY OWNER: Becker Family Revocable Living Trust ZONING: The property contains split zoning and is zoned both Commercial/Light Industrial (C/LI) and Low Density Residential (LDR). NO There is no notification requirement for an appeal of a Code Interpretation. PREPARED BY: Planning Staff ATTACHMENTS: A. King County Rezone Application submitted by Edwin Becker B. Report and Recommendation to the King County Council from the Office of the Zoning and Subdivision Examiner, including site map C. Motion 4301 King County Council D. Public Comment Letters from County Rezone Application E. Environment Assessment prepared by King County Department of Planning and Community Development F. King County Ordinance 7121 G. GIS MAP with zoning overlay H. Aerial Photo, May 5, 1980 I. Aerial Photo, July 10, 1990 J. Aerial Photo, September 22, 1995 K. Aerial Photo, June 23, 1999 L. Aerial Photo, October 6, 2000 M. Aerial Photo, September 22, 2002 N. Staff Photos of Site, May 13, 2003 O. Declaration from Troy Wallin, Neighbor of the property P. Declaration from Brie Campbell, Neighbor of the property Q. Declaration of Aaron Hundtofte, Neighbor of the property R Business License Application submitted by Becker Trucking on December 31, 2002 S. Letter from Rolan Becker, faxed to the City on February 18, 2003 T. Business License Application submitted by Edgmon and Son Trucking U. Statement of Trucking Use Steven M. Mullet, Mayor 6300 .Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone:.206 431 - 3670 • Fax: 206 - 431 - 3665 BACKGROUND Staff Report Becker Appeal, L04 -026 On September 14, 2004 the Department of Community Development for the City of Tukwila received a request from Robbie Russell that a formal Code Interpretation be issued by the Director of Community Development pursuant to TMC 18.96.020. The request for a Code Interpretation is for the property located at 12633 and 12677 East Marginal Way South, Tukwila, Washington. Mr. Russell requested that the Code Interpretation address whether there are any non - conforming rights related to the subject property. On January 28, 2005, the Department of Community Development issued a Notice of Decision in response to Mr. Russell's request. The City made the following decision regarding the non- conforming rights on the LDR portion of the property: Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal. The City concluded that there are no non - conforming rights for the C/LI portion of the property. The City is now amending its decision to state that the non - conforming use in the LDR zone is accessory parking to the building on the C/LI portion of the property. The Notice of Decision set forth appeal procedures and an appeal period. On February 10, 2005 a timely appeal was filed with the Department of Community Development. SCOPE OF HEARING Under Tukwila Municipal Code (TMC) 18.116 the appeal fled by the appellant is limited only to those issues raised in the Notice of Appeal submitted to the City on February 10, 2005. The applicant is not asking the Hearing Examiner to provide any specific remedy. The City seeks the following: 1. The Appeal should be dismissed. The appellant did not meet the appeal procedures laid out in TMC 18.116.030, which was also included in the City's Notice of Decision. The appellant has never demonstrated how the Director's Code Interpretation issued by the City on January 28, 2005 harms Edwin Becker or the Becker Family Revocable Living Trust. TMC 18.116.030 (3) specifically requires that the appellant note the actual harm suffered or anticipated harm. Additionally, Edwin Becker and the Becker Family Revocable Living Trust no longer own the property in question. 2. Affirm the City's conclusion that the non - conforming rights associated with the LDR portion of the property is limited to accessory parking. Such a conclusion is consistent with the City's non - conforming regulations and Washington State Law. 2 Staff Report Becker Appeal, L04-026 FINDINGS OF FACT 1. The property in question is located at 12633 and 12677 East Marginal Way South, Tukwila, King County, Washington. King County Parcel Numbers 734560 -0685 and 7345600766. The abbreviated legal description of the property is 9 Riverton Addition Lots 18 through 25. 2. On January 23, 1979, Edwin J. Becker, the property owner, submitted an application for a zone reclassification at the subject site (See Attachment A: King County Rezone Application). The rezone application was to change the zoning from MLPUD to MLP. Item number 11 of the Rezone application asked the applicant to note the existing development on the subject property. Mr. Becker provided the following response, "Office space, truck terminal and vehicle parking." 3. On May 18, 1979, the Hearing Examiner for King County made a recommendation to the King County Council approving the rezone application with conditions (See Attachment B: Report and Recommendation to the King County Council from the Office of the Zoning and Subdivision Examiner, including a site map.). On June 11, 1979, the King County Council adopted Motion 4301. Motion 4301 adopted and incorporated the Hearing Examiner's findings and conclusions as the Council own findings and conclusions (Attachment C). The Findings of the Hearing Examiner, later adopted by King County Council, provide a historical record of the use of the property. Finding Number seven notes, "The site plan submitted by the applicant shows the proposed building expansion (40'x 69.6') and parking for 34 vans and 31 semi - trailers. The plan also shows a new entrance near the southwest comer to accommodate the addition of the building (See Attachment B: Report and Recommendation to the King County Council from the Office of the Zoning and Subdivision Examiner, with Site Map ) ". Mr. Becker constructed the new addition and added the new entrance to the site. One of the conditions placed on the rezone application by the Hearing Examiner was as follows: "The truck fleet on the site is to be limited to a • combination of 96 units -a unit being defined as a van, a tractor, or a trailer (a combination tractor and trailer equals two units) ". 4. As part of the rezone application, the County engaged in significant amount of public notification and received a significant number of public comment letters. The public comment letters provide further background as to the historic use of the property (See Attachment D: Public Comment Letters from County Rezone Application). The letters provided reference Mr. Becker's Trucking Fleet 5. King County also did an environmental assessment of the proposed rezone. As part of the analysis, staff noted the following: "The site plan submitted by the applicant shows the proposed building expansion (40' x 69.6') and parking for 34 vans and 31 semi -truck trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition to the building" (Attachment E: Environment Assessment prepared by King County Department of Planning and Community Development). 6. On February 25, 1985, the King County Council passed Ordinance 7121 which formally changed the zoning on the subject property from MLPUD to MLP (Attachment F). 7. The subject property was annexed into the City of Tukwila as part of the Riverton Annexation in 1989. Prior to annexation the parcel was located in unincorporated King County and subject to King County's zoning regulations. At the time of annexation the property was zoned MLP by King County. The MLP zoning was enacted by King County Ordinance 7121 (Attachment F). At the time of annexation Becker Trucking was operating at the subject site. Becker Trucking would have been operating under Ordinance 7121 and any conditions that were placed on the operation by the County. 8. The property is currently zoned both Commercial/Light Industrial (C/LI) and Low Density Residential (LDR). (See Attachment G: GIS MAP with zoning overlay). The C/LI zoning 3 Staff Report Becker Appeal, L04 -026 is located on the eastern half of the property and the LDR zoning is located on the Western side of the property. The LDR portion of the property makes up lots 18, 19, and 20 of Block 9 of the Riverton Addition. Located on the C/LI portion of the property is a building, which has previously been used has a truck terminal (The appellant has stated this fact in the Notice of Appeal). Additionally, the northern portion of the property was used to park trucks and trailers (See Attachments A -G, Attachment H: Aerial Photo of site taken May 5, 1980, Attachment I: Aerial Photo of the site taken July 19, 1990, Attachment J: Aerial photo of the site taken September 22, 1995, Attachment K. Aerial photo of the site taken June 23, 1999, Attachment L: Aerial photo of the site taken October 6, 2000, Attachment M: Aerial photo of the site taken September 22, 2002, and Attachment N: Staff photos of the site taken May 13, 2003). The LDR portion of the property is gravel and contains no structures (See Attachment G -O). The LDR portion of the property was used to park semi trucks and trailers (See Attachments A, B, D, E, G -O, Attachment 0: Declaration from Troy Wallin, Neighbor of the property, Attachment P: Declaration from Brie Campbell, Neighbor of the property and Attachment Q: Declaration from Aaron Hundtofie, Neighbor of the property). According to the site plan that was approved by King County a total of 20 parking spaces were permitted on the portion of the property now zoned LDR (Attachment B). 9. TMC 18.10 governs permitted, accessory, and conditional uses in the LDR zone. 10. Becker Trucking operated a Truck Terminal on the C/LI portion of the property (the appellant has stated this fact in the Notice of Appeal). TMC 18.30 permits truck terminals in the C/LI zone. Becker Trucking's accessory parking was considered a non - conforming use on the LDR portion of the property. TMC 18.06.590 defines a non - conforming use as the use of land, which does not conform to the use regulations of the district in which the use exists. 11. Webster's Third New International Edition Dictionary defines a Truck Terminal as, `Either end of a carrier line (as a railroad, trucking or shipping line, or airline) with classifying yards, dock and lighterage facilities, management offices, storage yards, and freight and passenger stations." 12. Becker Trucking Incorporated (Becker Trucking) occupied the site until April 17, 2002 when the business relocated to 6350 S. 143 St., Tukwila, Washington. Becker Trucking operated a truck terminal in the main building and parked semi trucks and semi truck trailers on the remaining property area. The parking area was also used for employee parking. 13. TMC 18.70.040 provides restrictions on the expansion and continuation of non - conforming uses. There are six specific requirements: 1. No such non - conforming use shall be enlarged, intensified, increased or extended to occupy a greater use of land, structure, or combination of the two, than was occupied at the effective date of adoption of this title; 2. No non - conforming use shall be moved or extended in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this title; 3. If any such non - conforming use ceases for any reasons for a period of more than six consecutive months, or a total of 365 days in a three -year time period, whichever occurs first, any subsequent use shall conform to the regulations specified by this title for the district in which the use is located; 4. No existing structure devoted to a use not permitted by this title in the zone in which it is located shall be structurally altered, expect in changing the of a structure to use permitted in the zone in which it is located; except where minor alterations are made, pursuant to TMC 18.70.050 (1), TMC 18.70.060, or any other pertinent section, herein; 4 StafFReport Becker Appeal, L04 -026 5. If the change of use is proposed to a use determined to be a non - conforming use by application of provisions in this title, the proposed new use must be a permitted use in its zone or a use approved under a Conditional Use or Unclassified Use Permit process, subject to review and approval by the Planning Commission and/or City Council. For purposes of implementing this section, a change in use constitutes a change from one Permitted, Conditional, or Unclassified Use category to another such use category as listed within the zoning code. 6. Any structure, or structure and land in combination, in or which a non - conforming use is superceded by a permitted use, shall thereafter conform to the regulations for the zone in which such structure is located, and the non - conforming may not thereafter be resumed. 14. On December 31, 2002, Becker Trucking submitted a business license application to operate an unmanned truck terminal at the property in question. The business license application was submitted to the City Clerk's Office eight months after Becker Trucking relocated their business operation to 6350 S. 143 Street. Fees for business license applications are based upon the number of employees at the site. Since the site at 12677 East Marginal Way South would be unmanned, the City Clerk's Office did not require a fee (See Attachment R Business License Application, submitted by Rolan Becker). After repeated requests by the City for the applicant to provide clarification on the ` truck terminal" operation, the City denied the business license application. An appeal of the business license denial was never filed. 15. On February 18, 2003, Rolan Becker faxed a letter to the City of Tukwila regarding the use of the property at 12677 East Marginal Way South (Included as Attachment S). In the letter Rolan Becker notes: "I am writing to verify that the Becker Trucking has used this property since April 2002 to park semi -truck and trailers. It has always been our intent to continue to use this property for commercial parking of semi - tractors, trailers, and employee vehicle parking ". 16. On April 28, 2004, a business license application was submitted by Edgmon and Son Trucking (Edgmon and Son) LLC. The description of the business listed on the application was "trucking" the application noted that Edgmon and Son had been operating on the site since January 1, 2004. The application also noted that Edgmon and Son did not have a 2003 business license from the City of Tukwila. 17. According to City staff conversations with the operators, Edgmon and Son Trucking is a trucking company and only utilizes semi - trucks. 18. Bob Edgmon noted to City staff that he first viewed the property in December of 2002. When Mr. Edgmon walked the site he noticed that there was a truck trailer parked on the gravel area along the western property line (this is the portion of the property zoned LDR). Mr. Edgmon also noted that he was specifically informed when he leased the property to keep vehicles parked on the LDR portion of the property to preserve the non - conforming rights. 19. On June 10, 2004, the Department of Community Development sent a certified letter to both the applicant and the property owner (Becker Family Revocable Living Trust) regarding the business license application. The City noted that according to City records the non- conforming use of the property had expired. The City asked for documentation indicating that the non - conforming rights had not been abandoned and that such document be provided to the City within 14 - days from the date of the letter. 5 DISCUSSION 1. What is the zoning of the property? Staff Report Becker Appeal, L04 -026 20. On August 2, 2004, Bob Edgmon, of Edgmon and Son Trucking sent a fax to the City. The fax was a "Statement of Trucking Use ". In the Statement, Patrick Becker handwrote the following: "I parked a number of trailer along the west end of the property as well as other parts of property (sic) ". The west end of the property is the portion of the property zoned LDR (Attachment (tJ). 21. Site visits by planning staff indicated that Edgmon and Son Trucking used the westem gravel area from January of 2004 to October of 2004 to park semi - trucks and semi -truck trailers. 22. The City also conducted interviews with surrounding neighbors regarding the historical use of the subject property. Aaron Hundtofte, Brie Campbell, and Troy Wallin all noted to City staff that the western portion (the LDR zone) of the property had historically been used to park semi - trucks and semi - trailers (Attachments 0, P and OJ. In order to determine if there are any non - conforming rights associated with any piece of property the City must answer the following questions: 1) What is the zoning of the property? 2) What are the permitted uses in that zone? 3) What is the non - conforming use that may be occurring on the property? Is the non- conforming use listed as a use category in the zoning code? 4) Was the alleged non - conforming use legally established? 5) At any point did the non - conforming use cease operations for a period of six months or 365 days in a three -year period? As the findings show the property contains split zoning. Lots 18, 19, and 20 of the Riverton Additional are zoned LDR The remaining portion of the property is zoned C/LI. 2. What are the permitted uses in the zone? The LDR zoning permits single - family residential dwellings as well as those uses that incidental or accessory to residential uses (TMC 18.10). Commercial and Industrial uses are not listed as permitted uses in the LDR zone. TMC 18.30 permits a wide range of uses in the Commercia]Light Industrial zone. Some of these uses include, automotive services, heavy equipment repair and savage, motels, offices, and light industrial operations. 3. What is the non - conforming use that may be occurring on the property? Is the non- conforming use listed as a use category in the zoning code? As the City's findings clearly demonstrate, the historic use of the property has been as a truck terminal and associated parking. As noted the property contains duel zoning. There are no non - conforming rights for lots 21, 22, 23, 24, and 25 of the Riverton Addition. These lots are zoned C/LI and a truck terminal would be permitted in the zone. As previously noted a truck terminal is defined as, "Either end of a carrier line (as a railroad, trucking or shipping line, or airline) with classifying yards, dock and 6 Staff Report Becker Appeal, L04-026 lighterage facilities, management offices, storage yards, and freight and passenger stations (Webster International Dictionary Third Edition) ". Indeed many of these functions were occurring in the C/LI portion of the property. The building includes a place to transfer cargo, offices for employees, a warehouse areas, and parking for trucks and private passenger vehicles. TMC 18.30.010 (61) lists a Truck Terminal as a permitted use in the C/LI zone. There are no non - conforming rights for the C/LI portion of the property. All uses in that zone are outright permitted under the City's zoning code. A use cannot be non - conforming if it is outrightpernitted. The question now arises as to what use is occurring on the portion of the property zoned LDR, which are lots 18, 19, and 20 of Riverton Addition. There are no structures on these lots, only gravel. A review of old King County land use files, aerial photos, and interviews with neighbors reveal that the property has been used to park trucks and other vehicles associated with the building on the C/LI zone. However, there is no evidence that a truck terminal is currently occupying the LDR portion of the property. There are no offices, there are not loading docks, or warehouse facilities. The use on the LDR portion of the property is providing accessory parking for the building that is located on C/LI portion of the property. TMC 18.06.615 provides a definition of parking space, "Means an off-street parking space which is maintained and used for sole purpose of accommodating a temporary parked motor vehicle and which has access to a street or alley." The use that is occurring on the LDR portion of the property clearly falls into this definition. Parking is listed as a specific use category in the City's zoning code. Its is allowed as a permitted accessory use in all commercial and industrial zones. However, it is not listed as a permitted use in the LDR zone (TMC 18.10.020). TMC 18.06.590 notes that any use of land which does not conform to the use regulations of the district in which the use exists is considered a non - conforming use. Thus, the accessory parting area in the LDR zone is the non - conforming use. 4. Was the alleged non - conforming use legally established? The parking use on the LDR zone can only be non - conforming if the use was legally established either in the City of Tukwila prior to a zone change or in King County prior to annexation by the City. The findings clearly show that accessory parking area was legally established. The site map provided and aerial photos clearly shows that the western portion of the property, which is now zoned LDR, was used to park semi - trucks and trailers. 5. At any point did the non - conforming use cease operations for a period of six months or 365 days in a three -year period? 7 Staff Report Becker Appeal, L04 -026 RESPONSE TO APPELANT'S NOTICE OF APPEAL While there is a gap in the business license records for the building located on the C/LI portion of the property, the gap is irrelevant since there are no non - conforming rights on the C/LI portion of the property. The provisions of TMC 18.70.040 (3) do not apply to this portion of the property. The trucking operation could cease for a period greater than six months and could still reestablish on the C/LI portion of the property. The question arises as to the use of the parking area in the LDR zone. In the Statement of Trucking Use for the property, Patrick Becker clearly states that he parked trucks on the LDR portion of the property. Since the City has no way to dispute this claim it must conclude at no point did the LDR portion of the property meet the time limits set forth in TMC 18.70.040 (3). The non - conforming parking use is still vested and may continue to operate. The Beckers clearly understood what actions on their part would preserve the non - conforming rights for the LDR zone. This fact if evident by referring to Attachment S and Attachment U in which the Beckers provide statements regarding parking on the site and their intent not to abandon the use. Additionally, the Beckers were sure to always keep some vehicle parked on the LDR zone, even when the truck terminal on the C/LI site was unoccupied. The appellant has noted in their Notice of Appeal that the City has conceded that the property was being used as a Truck Terminal. The appellant is correct in this statement. The City does concede that the portion of the property zoned C/LI. was in fact used as a truck terminal. However, as has been demonstrated the use of this portion of the property as a truck terminal is outright permitted. The City has never conceded that the portion of the property zoned LDR has been used as an actual truck terminal. The appellant, on page four (4) of the Notice of Appeal notes, "The LDR portion of the property is a part of a larger truck terminal and is a valid nonconforming use as a truck terminal ". The appellant provides no documents or evidence to show that the LDR portion of the property was used as a truck terminal The appellant's argument that the gravel, underdeveloped portion of the property zoned LDR should be considered a truck terminal is a propitious argument that is not supported by any facts, nor is such an argument consent with the historical use of the property. Webster Third New International Dictionary provides the following definition of terminal: "Either end of a carrier lines (as a railroad, trucking, or shipping line or airline) with classifying yards. dock and ligtherage facilities, management offices, storage sheds, and freight and passenger stations". To even begin to consider the LDR portion of the property as a truck terminal, a majority of these activities would have to be taking place in the LDR portion of the property. There would have to be at least a building in the LDR zone. The only activity that is taking place on the property and which has historically taken place on the property is accessory parking. The record that the City has provided clearly shows that the LDR portion of the property does not contain any of the following: • Docks, • Ligtherhage facilities, • Offices, 8 Staff Report Becker Appeal, L04 -026 • Storage Sheds, • Freight Station; or • A building of any type The appellant's argument that the LDR portion of the property should be considered a truck terminal would carry more validity if a portion of the existing building extended into the LDR zone. An interpretation that the LDR zone is a truck terminal would allow the existing truck terminal building on the C/LI portion of the property to expand onto the LDR zone. It would also allow the existing building to be demolished and relocated on the LDR zone. The appellant also notes that the City should have limited its inquiry to whether the time limits set forth in TMC 18.70.040 had expired and thus expiring the non - conforming rights. The appellant notes, "The City's attempt to restrict the use of the property is beyond the scope of the requested interpretation, which was directed at the question of whether the non - conforming use was abandoned or terminated (4)." In order to determine if the non - conforming rights have been abandoned or terminated the City must first determine what the actual non - conforming rights are. If the City does not know what the non- conforming use is, how then can the City say that the non - conforming right has not stopped operating for a period of six consecutive months or 365 days in a three year period? The City's interpretation that the non - conforming use on the LDR portion of the property is limited to only parking does not interfere with the use of the building on the C/LI portion of the property as a truck terminal. In fact, no where in the appellant's Notice of Appeal is it noted how such an interpretation would harm Edwin Becker or the Becker Family Revocable Living Trust. The City interpretation actually allows for more flexibility for the property. Accessory parking could be for any use on the C/LI portion of the property, not just parking in association with a truck terminal. For example if a restaurant wanted to locate on the C/LI portion of the property, required parking could be located in the LDR zone. CONCLUSION The LDR portion of the property is vested non - conforming for accessory parking. Parking is a use category in the City's zoning code. The parking use was legally established in King County prior to annexation of the property by the City of Tukwila. The non - conforming use has never ceased operating a period longer than six months or 365 days in a three -year period. There are no non-conforming rights for the property that contains the truck terminal A truck terminal is an outright permitted use in the C/LI zone and thus cannot be non - conforming if it is permitted. The parking that is occurring on the C/LI portion of the property is also a permitted use. 9 AREA .Location Application Number Application Name Schd.• Hearing /�, �l` - Zone ist Date STR fAl /0 - ,23- Zone Request ,44 'Kroll & Book No. .34s 3. Zone Granted JAN 2 3 197 Acreage . /, 9 / Ordinance # AM 7 t 8 t 9 t 10 t 11 ,12t1t2t3,4 t 5 i 6 City /State Seattle, Washinkton r. Zip 98168 Phone 246 -9500 For v : APPLIL.,, ION •FOR ZONE RECL SIFICA"; )N KING COUNTY, WASHINGTON ..Name Edwin J. Becker Address 12677E. MarEi na1 WRy R,i 228 79 R Ref. File No. Signature Z • G�.Gei� is Receipt No. • 3 7166 I • 1/23/79 2 295.0': *3 ** * *** ** ** ** * ** * * * * *,i4* ****4. i *DO NOT WRITE ABOVE THIS LINEt * * *A* *** * *s ** ****,r0***, I (WE) THE UNDERSIGNED OWNER (3) OF PROPERTY' NUMBERED OPPOSITE MY (OUR) NAME(S) HEREBY PETITION FOR A ZONE• RECLASSIFICATION .07 PROPERTY DESCRIBED HEREIN FROM • Al A_ 14.D • 2'O N1 P STATE OF WASHINGTON. SS: COUNTY OF KING • I, Edwin J. Becker ., BEING DULY SWORN, DEPOSE. AND SAY THAT. I AMA PROPERTY OWNER OR OFFICER OF THE CORPORATION OWNIRG PROPERTY SHOWN .ON PARCEL #1.ON ASSESSOR'S-MAP AND THAT I HAVE FAMILIARIZED MYSELF WITH THE RULES AND REGULATIONS OF THE BUILDING & LAND DEVELOPMENT DIVISION WITH RESPECT TO PREPARING AND FILING THIS APPLICATIGN.AND THAT THE. FOLLOWING STATEMENTS,. ANSWERS AND INFORMATION Sr PRESENTS THE•ARGUMENT IN BEHALF OF THIS APPLICATION AND ARE IN ALL RESPECTS TRUE AND CORRECT TO THE BEST OF MY.XNOWLEDGE AND BELIEF. Address 12677 E. NArginal Way Soiuth (Give.00rporation or .company name) • SUBSCRIBED AND SWORN TO ME THIS_D9jaciDAY OF VIf 1J...�fo(l 19 rachibit ten Ilo �� Z 110 hC�i .G�.�... Received �� t St the SFwgF L o ue in or e ae o f a1ng Cotatty Soning ubdiritl f o� �"b yD i Public So n - 0 D (► 1 ea C iR AO Ex.mSner a0 �� rem-tang at . OTHER PROPERTY OWNERS INCLUDED IN TRIS APPLICATION MUST BE LISTED BELOW OPPOSITE A "PARCEL" NUMBER WHICH I8 ALSO SHOWN-ON THE ASSESSOR'S MAP AND INDICATES THE PROPERTY OWNED BY EACH APPLICANT'. " Parcel Name Signature 2 Address City /State. Parcel .Name Signature ATTACHMENT A 3 Address City /State.. Parcel Name Signature 4 Address City /State -Zip Phone ********s ******i* * ********. A** ***** **** ** tits*****i**** *i **** ****** ******** **** *aa **** ** * * * * **** State below the name, address and phone number of person or persons to be contacted for further-details on this application. City /State Seattle. WR4►+ing+An Zip 99148 Phone 246 -9500 F -152 . 11/78. . . . F -152 11/78 ZONE RECLASi}IFICATION ATTACHMENT "C" R 1. Existing Zone: M L P U D 2. Requested Zone: 14 L P 3. Acreage: 2 Acreas 6. - Sec. -Twp. - Range: W 10 - 23 - & W 15 -23 - 4. Water District: # 125 _ 7. Sewer District: . Val. Vue 5. Fire District: # 18 ' 8. School District: So. Central #406 9. Has an environmental assessment or environmental impact' statement been prepared for the proposed development? If yes; submit with this environmental evaluation form. (X) Yes ( ) No 10. Do you believe an Environmental Impact Statement should be prepared on this proposal? No 11. Development existing on subject property:Office space, truck terminal and vehicle' "parking 12. Development on adjoining properties: parking lot south side and empty lot north side 13. Neighborhood land use characteristics: ML - CG - 111 - & Residential 14. Public roads which provide access to the site: So. 128th. Street and East Marginal Way South 15. Have you made this request, or your planned development,. known to interested community groups or neighboring property owners? ( ) Yes (X ) No. If yea, who have you notified and what were their reactions? F -152 11/78 16. What effect will the proposed zoning and conteinplated use of the subject property have on adjoining or neighboring properties? None 17. How can the uses permitted within the proposed zone be made compatible with uses permitted' on abutting property of dissimilar.zoning? Same buffer sone as before • 181. To the best of your knowlege, was any reclassification request on this property made at the time of•the last area zoning? Have any previous reclassification requests for this property been made in years past? part {1) - Yes part (2) - Yes 19. ' Since the last previous area zoning of the subject property , have authorized public improvements, private development or other circum- stances materially or significantly affected the property? (x ) Yes • ( ) No. If "yes", what are the changed. circumstances , and how have they affected the property? I hgve i nsta led stree ik are Vi and Cur DS in C orIDaIICe.N 20. Is this logical expansion of any existing adjacent zone? Yes 21. What King County Comprehensive Plan principles and policies regard- ing arterials; business, residential, etc. , support this request? NONE 22. Is the water district or distributor capable of serving the property adequately to meet County fire protection standards and.to meet the demand created by the use intensity that could be created by the zoning reclassification requested. YES 23. You may. submit any additional information (sketches , engineering reports , petitions. photographs , etc.) which you believe will justify , clarify, or will assist in the granting of your requested zone reclassifi- • cation. Further. the Building t Land Development Division or the Zoning & Subdivision Examiner may at anytime request further infor- • oration or studies for these purposes : Other evidence which supports this application: Yes - site plan for addition SUBJECT: SUMMARY OF RECOMMENDATIONS: Division's Division's Examiner: PRELIMINARY REPORTS: PUBLIC HEARING:- Exhibit No. 1: Exhibit No. 2: Exhibit No. 3: Exhibit 'No. 4: Exhibit No. 5: Exhibit No 6: EDWIN J. BECKER ML(PUD) to ML -P FILE c REPORT AND. RECOMMENDATION TO THE RING COUNTY COUNCIL. preliminary: .Approve ML -P, in .lieu of ML, tions. final: Approve ML -P, in lieu of ML, tions (modified). Approve ML -P, in lieu of ML, tions.(modified). .:May 18, 1979 OFFICE OF THE ZONING AND SUBDIVISION EXAMINER • ICING COUNTY.,: WASHINGTON Building'and•LandDevelopment File No. 228 -79 -R Proposed Ordinance No. 79 -240 2.1 acres lying at the southwest corner of Marginal•Way.South and.South 128th Street. subject to condi - subject to condi- subject to condi- The Building and Land Development preliminary report on Item 228 - -R was received by the Examiner on march 15, and May 1, 1979. After reviewing the Building and Land. Development report, examining available information on file with the application and visiting the property and Surrounding area, the Examiner conducted a : hearing on the subject as follows: The hearing on Item 228 -79 -R was opened by the Deputy Examiner at 2:40 P.M., March 22, 1979 Ms. Powers, Building and Land Development, offered the following exhibit: Application dated January 23., 1979. Environmental Checklist dated January 23, 1979. Declaration of Non-Significance dated February 21, 1979. . Building and Land Development's preliminary report dated March 22, 1979. Assessor•map of the SW, of Section 10 -23 -4 showing subject property. outlined. in red. Two Land Use Sheets marked: 6 -1: 315W 6 -2: 324W . (to be retained :in the Division's permanent working files). Correspondence•contained.in the Division's final but. not referenced in their preliminary report was as follows: Page 2, Item D -14, Wa.shington.State Department of Transportation:: . Response dated March 7, 1979 stating "no comment ". ATTACHMENT B East Page '2, ItemD-8, 'City of Tukwila Planning Department: .Response. dated March 8, 1979. Page 1, Item D -1, King County Division of Traffic and Planning: Response dated March 13, 1979 stating "no comment Pagel, Item D -7, King County Division of Planning: Response dated March 14, 1979. Letter dated March 10, 1979•fronr Mrs. Donald Nicholson stating opposi- tion. Letter dated.March 17, 1979 from G. S. Delihunt stating opposition. Letter dated March 19, 1979 from Mrs. Douglas Perrine stating opposition. Letter dated Match '20,- from Mr.. and Mrs. Richard B. Barnhard stating opposition. The Examiner•made comments for the benefit �f the participants. All parties wishing to testify were affirmed by the Examiner. Speaking in support was: • . EDWIN • 3 : BECKER., • applicant 12677 East Marginai.Way South Seattle, Washington 98168 ' • The Examiner directed questions to Mr. Becker. . Mr. Marbett, Building and. Land Development, made comments at this time. Mr. Becker - continued . with his presentation. ' Mr. Becker offered the following exhibit: Exhibit No. Set of building.plans proposed for subject property. Discussion took place among•Mr. Becker, the Examiner and Mr. Marbett. Also speaking. in support were: PHILLIP HEMENWAY 4036 South 128th Seattle, Washington 98168 RAY CATRON .3717 South 128th .Seattle, Washington 98168 Speaking in opposition was: SHARON BERNHARDT 3418 South 126th Seattle,.'Washington 98168 .228 - 79 - R Page 2 BEVERLY NICHOLSON 3810 South 130th Seattle, Washington 98168 Ms. Bernhardt offered the following .exhibits: Exhibit No. 8: Set of •five photographs. ExhibitNo. 9 Set -of 24 letters of opposition from residents of subject property. Ms. Bernhardt continued with her presentation Also speaking in opposition. were: BRIAN KENNEDY .12802 -. 37th Avenue South ' - Seattle, Washington 98168 SHARON:MANN 3404 South 126th .Seattle, Washington 98168 Mr. Becker continued. Speaking in opposition were: RUTH BERNHARDT 12527. - 35th Avenue South Seattle,•Washington 98168 • .A11: proponents and opponents having given their presentations, the • participants responded with cross-examination-and A• continuance.date•was discussed by the participants. : Cross - examination and.•rebuttal continued. At.4:20 P.M., March 22, 1979 this•matter was continued by the Deputy Examiner to 9:00 A.M., May 8, 1979 in Room 8 of the King County. Administration Euidling. * * *• * * •* .* * * * * The hearing on Item 228 -79 -R was reopened by the Deputy Examiner at 9:15 A.M. May 8, 1979. Ms. Powers, Building and Land Development, offered the following exhibits: Exhibit No. 10: Addendum Building and Land Development report dated May 8, 19 Exhibit No. 11: Site plan submitted April 9, 1979 by the applicant. Mr. Marbett, Building and Land. Development, summarized the background of this application. Speaking in support was: EDWIN J. BECKER, applicant 12677 East Marginal Way South Seattle, Washington 98168 Mr. Marbett and Mr. Becker held discussion at this time. 228 -79 -R Page 3 SHARON BERNHARDT RUTH BERNHARDT Mr. Marbett and the Examiner addressed questions to Mrs. Ruth Bernhardt. All proponents and opponents having given. their.presentations, the • participants responded. with: cross- examination_and DiEcussion continued among the participants. Mr. Marbett modified the addendum Building and Land Development report dated May 8, 1979 (Exhibit No. 10) as follows: Pre-ordinance .Condition on Page 3 to read as follows: "The applicant sha11'fulfi•11 the necessary requirements to receive site plan approval-on the property to the south (Pile No. 261 -78 -R) or submit a cash bond of $5000 with the stipulation that the post ordinance condition be satisfied within six months of Council approval of File No. 228- 79 -R." • 228 -79 = R Page 4 Mr. Marbett stated. that his final recommendation was. to approve.as stated in their addendum preliminary report.dated.-May 8, 1979. with the following additional conditions and the modifications stated above: . Condition No.* 5: • "The truck fleet shall be limited ~to a combination of 96 vehicles that would include vans or trucks, tractors and trailers:" Condition No. 6: "Repair of any vehicles on the premises not to be after 10:00 P.M. or to be contained within an entirely enclosed building." The hearing on Item 228 -79 -R was closed by the Deputy Examiner at. 10:25 A.M., May 8, 1979. FINDINGS, CONCLUSIONS AND RECOMMENDATION: Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: 1. General Information: Location: Lying the northwest corner of East Marginal Way South & South 128th Street. :Existing Zone: ML (PUD) Requested Zone: ML -P • STR: W10 -23 -4 Size: 2.1 acres Water•District: #125. • Sewer District: Val•Vue Fire District: #18 School District: :South 2. .Approval, of this application will constitute'a "major action" under the provisions of R.C.W. 43.21C and W.A.C. 197 -10. The .applicant submitted•an•environmental checklist with the application... After reviewing the environmental checklist, the Manager of the Building and Land Development Division made a threshold determination that.approval of.this application will not have a significant adverse impact upon the quality of the environment and that an environmental impact statement is not required. The Building and Land Development Division transmitted a proposed declaration of non - significance to. other agencies with jurisdiction on February 21, 1979. After the of fifteen days following the transmittal and after reviewing comments submitted by agencies with jurisdiction and by other parties, the Manager.of the Building and Land Development Division adopted the proposed declaration a final declaration of•iaon- significance. At the public hearing on this application a representative of •the•Building and Land Development Division reported that having considered the comments and testimony by agencies with jurisdiction and by other parties, having visited the subject property, and having evaluated the natural, physical and social systems related to this application, the and Land Development Division reaffirms its determination that approval of. this application .will not have a significant adverse impact on the quality of..the environment and an environmental impact statement is.not required. 3 The, subject property was zoned ML "subject to.a planned.unit development (File No. 200 -74 -R) in 1974. Final planned unit development approval was given in 1975.(File No. 249-74-P) and later revised in 1977. • This request. would change zone classification of the subject property from ML (PUD) to ML-P in order to expand a building beyond the limitations placed on the subject property through the Planned Unit Development procedure; 228 -79 -R: Page 5 :The Highline Community•Plan,'adopted by the King County Council in December 1977 shows the•subject.property as "industry , and prescribes specific landscaping standards for industrial property. 5. The property to the south (File 261 -78 -R /Ray Catron) was . approved tor CG-P subject to site plan approval. The applicant is currently using this property for employee parking but has not •yet'received. site plan approval. . The•.public hearing.on.this matter had been continued in order to allow time :.for the applicant to prepare a site 'plan and for the Traffic Division to complete a traffic study relating to. the capacity East:Marginal Way'in'the vicinity of the site. 7. The site plan submitted by the applicant shows the proposed building expansion (40'X69.6').and parking. for 34 vans. and 31'semi • trailers. The plan also shows a new entrance near the southwest corner. to accommodate the addition the building.' 8. The Traffic concluded. that: "....the subject route is.' . capable.of the existing :traffic and.any future traffic volumes using this arterial. We recommend - against any restriction to use of•this: route going south the light industrial area. A restriction of this type could cause. undue• congestion at the intersection of.East Marginal Way and Interurban Avenue.South." 9. Representatives of the Riverton community attended the hearings and requested that•the County place conditions on'the site plan and operation of the facility that will protect existing residential areas and provide a workable boundary between residences and industrial' in the area. .- 10'. The Building and Land Development Divisionproposed specific limita- tions on.the - number of vehicles to be utilized'at the site and the hours of. outdoor maintenance and repair work. .. The applicant advised that his present business operation. depends • on a].1 truck maintenance.work on the-site. The additional facility is designed to support off- loading transfer of goods. from long -haul to short -haul vehicles. •CONCLUSIONS: 1 Based upon the - whole record, and according substantial weight to •the determination of environmental significance'made by the Division of Building and Land Development, it is concluded that - approval 'of the subject action as recommended below, would not constitute & major action significantly affecting the quality of the environment. All evidence of environmental impact • • relating to the proposed and reasonabie'alternatives.to the proposed•action have:•been'included in the review and Consideration' of the subject action. 2. Industr..ial use'of the property is supported by thelHighline Community Plan,•which also provides for adequate screening and landscaping. 3. The location of the property at industrial and residential areas requires conditions of approval which go beyond typical industrial property.. requirements: RECOMMENDATION: . Approve ML -P in lieu of ML subject to the following conditions: * Pre - ordinance condition: 1A p`�^Ihe .ap shall fulfill the .necessary requirements to receive site plan approval on the property to t he sou (File No. '261 - 78 - R) or shall submit. acash'bond of $5000 to insure that post- ordinance ORDERED THIS 18th day of May, 1979. 228 -79 -R Page 6 conditions of Pile No. 261 -78 -R are satisfied within six (6) months of the approval of this case (File No. 228-79-R). Post- ordinance - conditions: 1. ._. The . applicant shall supplement the existing landscaping-to meet the requirements of• the 'Highiine Plan. a. •.Type II landscaping along the south property line as far west as the proposed- entrance. b. ;Type III landsacping for the remainder of the south property line and the north and west property lines. c. Planting along the east is sufficient but .shall`not be decreased. 2. Expansion of the.bdilding.shall limited to the proposed expansion (40'X69..6') 3. No- additional building(s)' shall be allowed on the site. 4. A - cash bond may be required at the time of the building permit for insurance of landscaping. 5. The truck .fleet• on the site to be limited to S. combination of 96 units - a unit being.defined as.a van,.a'tractor.or a trailer (a combination tractor and trailer equals two units). 6. The noise levels emanating from maintenance and repair of vehicles between the hours of 10:00 P.M. and -7:00 A.M..shall be limited as set forth in Section 12.88 of the King County Code. A violation of•the provisions of that section shall be considered a violation of the conditions of approval of this application. Exemptions allowed by Section 12:94 for industrial districts shall not apply to the subject'property while operating under.the conditions of this reclassification approval. Robert A. Eveleigh DEPUTY ZONING.& SUBDIVISION EXAMINER TRANSMITTED this 18th day of May, 1979 by certified mail to the parties of record: Edwin J. Becker Phillip Hemenway Ray Catron Sharon Bernardt Beverly Nicholson Brian: Kennedy Sharon Mann Ruth. Bernhardt Luci Reimann James L. Stretch Brudette & Coleen Anderson Shirley M. Robinson Bernice Ross Rhoada E. Cook Mrs. Harriet Norman Lillian:Woolbert Louveln L.•Lautenschlager Mr. & Mrs. Laurel L. Land and Mr. Steven M. Lang Mae E. Sharp Curtis W. Robinson • Edward Lucero Mr. & Mrs. John B. Stetson /II Mr. & Mrs. Richard. Barnhart Mrs. Mary.. Siccardi John A. and Linda Kurtti E. J. and Deborah Ness John J. Romero Mrs. Marie Francis Ruth M. Breed G.. • Mrs... Douglas Perrine Donna Meagher •TRANSMITTED this 18th day of May, 1979 to the following: Ring County Building and. Land Development Division Ring County Department of.Public Works Ring County Department of•Eealth Washington . State. Highway Department, District-No. 1 City. of 'TakWila, Edgar-D. Bauch. and Fred Satterstrom Ring County. Water District' No. 125 King County Division of Planning, Karen Rahm 226 -79 -R Page 7 Pursuant:to Chapter 20.2.4.170 and "20.24.190 of the Ring County Code, request for.reconsideration or notice.Of appeal must be•filed in writing on or before June 1, 1979. If a notice of- appeal is filed on or before June 1,.1979, the appellant .will have-until June 8, 1979 to file written 'appeal arguments. .The original copies of said written appeal arguments' shall be filed with the Clerk of the King County Council. • Pursuant to Chapter 20.24.210 of the'Ring County Code: "Action of the Council Final. The action of the .Council approving or rejecting a decision of the Examiner shall be final and conclusive unless within twenty (20) days from the date of the action an aggrieved :party or person obtains a writ of certiorari from the Superior•Court in and for the County of King, State of Washington, for the purpose of review of the action taken." Applicant: .Z.o.ne Change :• M -L . (PUD) • to ii-L -P STR: I/ - / /. / / i ) EDNIY "J: BECKER N 10 -23 -4 Proposed Reclassification S -R FILE 228 - 79 R APPENDIX B r 6 -4 -79 1 2 3 4 8 9 10 11 12 13 14 15 16 17 18 19 .20 21 22 23 24 25 26 27 28 ..29 30 31 32 5 6 33 dated Clerk of. the petitioned designated D epartment 22R -79 -R TTEST: MOTION NO. to approve ML -P in lieu the application for by EDWIN J. BECKER // •C %,.fin:. EPVT.Clerk of the Council Introduced by: 4301 A MOTION concurring with the recommendation' of the Zoning and Subdivision Examiner to approve. ML -P in lieu of M -L subiect to conditions the application for reclassification petitioned by EDWIN J.•BFC:KF,R and designated File No. 22R -79-R • BE IT MOVED by the Council of King.County: This Motion does hereby adopt and incorporate herein as its own findings and conclusions the findings and conclusions contained in the report of the Zoning and Subdivision Examiner May 18. Council on . June 4 . '79 , 19 79 which was filed with the of M -L subiect to conditions reclassification by the Building and Land Development Division, of Planning and ComMunity Development File No. ,'and the Council does concur with the Councilman Grant 5 ecommendations contained in said report. PASSED at a regular meeting of the King County Council his 0 4 day of / 19. KING COUNTY COUNCIL KING CO[JNTY, WASHINGTON airman ATTACHMENT C BRIAN KENNEDY 12802 — 37th Avenue South Seattle, Washington 98168 SHARON MANN 3404 South 126th Seattle, Washington 98168 228 -79 -R • Page 3 RUTH BERNHARDT 12527 - 35th Avenue South Seattle, Washington 98168 All proponents and opponents having their presentations, the participants responded with cross - examination and rebuttal. A continuance date was discussed by the participants. Cross - examination and rebuttal continued. At 4:20 P.M., March 22, 1979 this matter was continued by. the Deputy Examiner to 9:00 A.M., May 8, 1979 in Room 854 of the King County Administration Buidling. The hearing on Item 228 -79 -R was reopened by the Deputy Examiner at 9:15 A.M. May 8, 1979. Ms. Powers, Building Exhibit No. 10: Exhibit .No. .11: and Land Development, offered the following exhibits: Addendum Building and Land Development report dated May,8, 1979. Site plan submitted April 9, 1979 by the applican Mr. Marbett, Building. and Land Development, summarized the this application. Speaking in support was: EDWIN J. BECKER, applicant 12677 East Marginal Way South Seattle, Washington 98168 Mr. Marbett and-Mr. Becker held discussion at this time. Mr. Becker continued. Speaking in opposition were: SHARON BERNHARDT RUTH BERNHARDT Mr. Marbett and the• Examiner addressed questions to Mrs: Ruth Bernhardt. All proponents and opponents having given their presentations, .the participants responded with cross - examination and..rebuttal.. Discussion continued among the participants. background of X Mr. Marbett modified the addendum Building and Land Development report dated May 8, 1979 (Exhibit No. 10) as follows: Pre - ordinance Condition on Page 3 to read as follows: "The applicant shall fulfill the necessary requirements to receive site plan approval on the.property to the south (File No. 261 -78 -R) or submit a cash bond of $5000 with the stipulation that the post ordinance condition be satisfied within six months of Council approval of File No. 228- 79 -R." 228 -79 -R, Page 4 Mr. Marbett stated that his final recommendation was to approve as stated in their addendum preliminary report dated May 8, 1979 with the following additional conditions and the modifications stated above: Condition No. 5: "The truck fleet shall be limited. to a combination of 96 vehicles that would include vans or trucks, tractors and trailers. " Condition No. 6: "Repair of any vehicles on the premises not to be after 10:00 P.M. or to be contained within an entirely enclosed building." The hearing on Item 228 -79 -R was closed by the Deputy Examiner at 10:25 A.M., May'8, 1979. • FINDINGS, CONCLUSIONS AND RECOMMENDATION: Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: 1. General Information: Location: Existing Zone: Requested Zone: STR: Size: Water District: Sewer District: Fire District:• School District: Lying on the northwest corner of East Marginal Way South & South 128th Street. ML (PUD) ML -P W10 -23 -4 2.1 acres #125 Val Vue #18 South Central 2. Approval of this application will constitute a "major action" under the provisions of R.C.W. 43.21C and W.A.C.. 197 -10. The applicant. submitted an environmental checklist with the . application. After reviewing the environmental checklist, the Manager of the Building and Land Development Division made,a threshold determination that approval of this application will not have a significant adverse impact upon the quality of the significant adverse and that an environmental impact statement is not required. The Building and•Land Development Division transmitted a proposed declaration of non - significance to other agencies with jurisdiction on February 21, 1979. After the elapse of fifteen days following the transmittal and after reviewing comments submitted by agencies with jurisdiction and by other parties, the Manager of the Building and Land Development • Division.adopted the proposed declaration.as a•final declaration of non — significance. At the public hearing on this application a representative of the Building and Land Development Division reported that having considered the comments and .testimony by agencies with jurisdiction and by other parties, having visited • the subject pro and having evaluated the natural,. physical and social systems related to this application, the Building and Land Development Division reaffirms its determination that approval of this application will not have a significant adverse impact on the quality of the environment and an environmental impact statement is not required. 3. The subject property was .zoned ML subject to a planned unit development (File No. 200 -74 -R) in 1974. Final planned unit development approval was given in 1975 (File No. 249 -74 -P) and later revised.in 1977. This request would change the zone classification of the'subject property from ML (PUD) to ML - in order to expand a building • beyond the limitations placed on the subject property through the Planned Unit Development, procedure. k 5. 228 -79 -R 'Page 5 4. The Highline Community Plan,-adopted by the King County Council in December 1977 shows the subject property as "industry" and 'prescribes specific landscaping standards for industrial property. The property to the south (File No. 261 -78 -11/Ray Catron) was approved to CG -P subject to site plan approval. The applicant is currently using this property for employee parking but has not-yet received site plan approval. . 6. The public hearing on this matter had been "continued in order to .allow time.for the applicant to prepare a site plan and for the Traffic Division to complete a traffic study relating to the capacity of East Marginal Way in the vicinity of the site. 7. The site plan submitted by the applicant shows'the proposed building expansion (40'x69.6') and parking for 34 vans and 31 semi- trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition to the building. 8. The Traffic Division concluded that: "...the subject route is capable of handling the existing traffic and any future traffic volumes using this arterial. We recommend against any restriction" to use of this route going south from the light industrial area. A restriction of this type could cause undue congestion at the intersection'of Marginal-Way and Interurban Avenue South." 9. Representatives of the Riverton community attended the hearings and requested that the County place conditions on the site plan and operation of the facility that will protect existing residential areas and provide a. workable boundary between, residences and industrial expansion in the area. 10. The Building and Land Development Division proposed specific limita- tions on the. number of•vehicles to be utilized at the site and the hours of outdoor maintenance and repair work. The applicant advised that his present business operation depends on all -night truck maintenance -work on the site. The additional facility is designed to support off- loading and transfer of goods from long -haul to short -haul vehicles. )t CONCLUSIONS: 1. Based upon the whole record, and according substantial weight to the determination of environmental significance made by the Division of Building and Land Development, it is concluded that approval of the subject action as recommended below, would not constitute a major action significantly affecting the quality of the environment. All evidence of environmental impact relating to the proposed action and reasonable alternatives to the proposed action have been included in the review and Consideration of the subject action. 2. Industrial use of the property is supported by.the Highline Community Plan, which also provides for adequate screening and landscaping. 3. The location of the property at• the boundary of industrial and residential areas.requires conditions of.approval which go beyond typical industrial property requirements. $ RECOMMENDATION: Approve ML -P in lieu of ML subject to the following.conditions: Pre - ordinance condition: ' The applicant shall fulfill the necessary requirements t� receive site plan approval on the property to the south (File No. 261 -78 -R) • or shall submit a cash bond of $5000 to insure that post - ordinance Post - ordinance conditions: 228 -79 -R Page 6 ( conditions of File No. 261 -78 -R are satisfied within six Months of the approval of this case (File No. 228- 79 -R). 1. The applicant shall supplement the existing landscaping to meet the requirements of the Highline Plan. a. Type II landscaping along the south property line as far west as the proposed entrance. b. Type III landsacping for the remainder of the south property line and the north and west property lines. c. Planting along the east is sufficient but shall not be decreased. 2. Expansion of the building shall be limited to the proposed expansion (40'X69.6'). 3. No additional building(s) shall be allowed on the site. 4.. A cash bond may be required at the time of the building permit for insurance of landscaping. 5. The truck fleet on the site to be limited to a combination of 96 units = a unit being defined as a van, a tractor or a trailer (a combination tractor and trailer equals two units). 6. The noise levels emanating from maintenance and repair of vehicles between the hours of 10 :00 P.M. and 7 :00 A.M. shall:be limited as set forth in Section 12.88 of the King County.Code. A violation of the provisions of that section'shall be considered a violation of the conditions of approval of this application. Exemptions allowed by Section 12.94 for industrial districts shall not apply' to the subject property while operating under the conditions of this reclassification approval. ORDERED THIS 18th day of May, 1979 Robert A. Eveleigh DEPUTY ZONING & SUBDIVISION EXAMINER TRANSMITTED this 18th day of May, 1979 by certified mail to the parties of record: Edwin J. Becker Phillip Hemenway Ray Catron Sharon Bernardt . Beverly Nicholson Brian Kennedy Sharon Mann Ruth Bernhardt Luci Reimann James L. Stretch Brudette & Coleen Anderson Shirley M. Robinson Bernice Ross Rhoada E. Cook Mrs. Harriet Norman :. Zoniti ' g" and. Subdisi on Examiner Building and Land: Development Division King County Courthouse • Seattle, Washington Dear Sir: Re: Applicant Edwin J. Becker,. File 228 79 -R It is our understanding that this request'is being made because Mr. Becker wishes to build additional warehouse space at his . present location. . he *r . tot . a- . a h earing on 7 ' -.78, . tD .:r Ile .: 261 -78� R. that - he was Hm .seeking �....additional bearlse 'his present parking area was fully ciocupid ' edsusgiel warehaiase- space :is allawed,, It will-Jae:necessary for Backer - to find%e pl t varlt - some of his' truaks. There is no place in the immediate area for him to do so. We do not want his trucks parked on the street at any time. Our streets are extremely hazardous as it is. In order to go anywhere from our area, we must enter E. Marginal Way S. at So. 126th, So. 128th or So. 130th. - E4otoblee Because there are so many large trucks parked at the northwest corner of So. 126th and E. Marginal Way S. much of the time, it is impossible to see if traffic is coming south along E. Marginal Way S. The situation at So. 128th is already hazardous because of the curve in E. Marginal Way S. and the height of the berm containing Mr. Becker's planting strip. He was allowed to do 1974 extensive filling at the site when he moved his business here in . There are community businesses at So. 130th which allow parking on the street and therefore that intersection is also a hazard in that it is difficult to see if traffic is coming along E. Marginal Way S. when you enter the intersection. Mr. Becker stated at a hearing on February 22, 1979, BALD files 279-78-u and 276 that the residents in the area did not need to use E. Marginal Way S.--that we could use back streets. The only way to the freeway is on E. Marginal Way S. andtlyand >E1.44arS!' Pacific Highwsy South provide the only way in or out of the area. We objected to Mr. Beckerfs request to rezone this site to ML in 1974. Now he claims his business has experienced considerable growth (testimony in BALD file 261-78-R). There is no room for his business to grow at this location. We tried to tell Mr. Pecker and the County that this was not a proper location for such a business in 1974. Mr. Becker was extremely short-sighted not to realize that there would be no room for growth here. We request that you deny any request by Mr. Becker to expand his building at this site. Exhibit $o Itea Na. Reasitrid King Co aty liotli W aubdirieion Examiner at ,/ - 214 7./ Mr. & Mrs. H. H. Bernhardt 12527 - 35th Avenue South Seattle, Oda. 98168 ATTACHMENT b C...')1 4 t1141 ..351-do 'W 1, iUI' .3 144144 G►-„Vv 0"1M1 et-e ArvVd X a CI LL • .351 oU tr r t, aziNtair1V CMNad o S i t c d *4 .. .. 6 avArviA - S7Trti C VG ^ sc cxx • - i.va ti Or4y (.000V+200tit /13 ', w o S Zi d - W cit_. (0 »QIl w -_•I %• o v. 3•9N'd h 7 9 - --k3a 49 3l S . » 9 1 N yyt Ai sr I lAk rinia:LS '"1 a V v wv'2J March 20, 1979 To: King County Zoning & Subdivision Examiner Re: Edwin J. Becker • Fite No. 228-79-R What is the use of a P. U. D. zoning if it can just be changed a very few years later!? There has been too much industrial intrusion into our residential neighborhood already. I certainly don't condone any more zone upgrading (in my opinion, downgrading). The Becker trucks are a real hazard to our neighborhood. Becker has tried to faire the : property amass:, 128th Street rezoned so he could park his p e ss trunks there, fll v vus ly, he needs more roam for hit; ti licks andd: there's :n t going 46 be snore room for truckss if th building is expanded. Where Is le going to put the-trircks'he alreadyneeds more room for If this rezone is granted, does it mean that we'll sooq:be facing another rezone request on the property now being used for Becker's employee parking: Or, will there be large trucks parked in the streets surrounding Becker ? In my opinion, there is no more room for Becker to expand his business in our residential neighborhood. I see that as his problem, not ours. I'm glad to see that the environmental assessment tells what the present land use is like (F.6). I couldn't agree with the statement more. The surrounding streets are not wide enough to allow Becker's trucks to enter or leave his yard without taking up both lanes. This can be very hazardous, especially during rush hours. Seems like the already existing problems should be remedied before Becker is allowed to add more problems to the area. Expanding his building is just going to cause more trouble in our residential neighborhood. Thank you for reading this. £ Burdette r E. and Coleen D. Anderson 12630 34th Ave. S. Seattle, Washington 98168 Building & land Development Division 450 ging County Administration Bldg. Seattle, Washington 98104 File # 228-'79-R Dear Sir: 13422 40th Avenue South Seattle, Washington 98168 March 20, 1979 Mr. Beaker's request to change the zone classification on his property from MI (PUD) to MI - P in order to expand his warehouse facilities should. be denied. Mr. Becker's business has always been a nuisance in our residen- tial community and ; , is „increasing to hazzardous proportions. e num r. a .: rh s op.e.r tin ` n`an'd out of the.: prerr ises is :-alarming; They constitute a menace to our children, pets, and neighborhood traffic. large trucks often block visibility at the intersections of 128th St. and E. Virginal Way and. 126th St. and E. Marginal flay. s ,tr ucks :;may 'b t eh .e nignd. or.. db*lr.. With more off- street parking used for warehouse p urposes, it seems likely that more trucks will be parked on the two -lane street. Material contained in File Number 26.1 '78 R to ; p e rtinent, to the _shortage 'of - track :parking space on..: th.e ,.property: "pre nt heed. for warehousing parking of trucks, Sin.oe the amount of property for these purposes has not been increased, it is puzzling that Mr. Becker should suddenly find room for a larger building.; It is hoped that hours of operation of the business will not be extended as loading. and unloading of trucks already continues into the late night hours - -not a compatible situation in a residentiLl com- munity. Another hazzard of tremendous concern is the nature of cargoes carried. by Mr. Becker's trucks. The chemical spill that closed. Tyee High School for half a day last year was from one of Mr. Beaker's trucks. We never know what chemicals or inflammable materials may be carried through our community or stored on his property. The impassable condition of S. 128th Street between E. Marginal Way S. and 37th 4.ve. S. because of flooding during heavy rains is another concern directly tied to Mr. Beaker's haphazzard planning. Finally, no amount: of. Screening ,can succ essfully hide.th.e:presene.e of a. tt rit~ing •trucking obviously, no one can force Mr. Becker to move, but he chose . to accept the restric- tions in the first place. If his choice turned out to be a bad one, it is 1VIr. Becker, not the many residents of this community, who must accept the penalties. Sincerely yours, W" Y � f le-- -444147,, C/. CL- , /g 61- " .3 en_e, Tae- • rifv .2- 72 Mr. & Mrs. John B. Stetson III 13258 40th Avenue South Seattle, WA 98168 (206) 243 - 7504 March 21, 1979 Building and Land Development Room 450 King County Administration Building Seattle, WA 98104 Ref: Mr. Edwin J. Becker File # 228 -79 -R Dear Sir /Madam, We wish to protest the expansion request of Mr. Becker, as we feel it would cause unnecessary disruption of this Rr rmar. i iy residential : neighborhood„ : `due to heavy °t ruck and equipment traffic, noise poilution " -> etc. Kathryn A. Stetson John B. Stetson III King County Council Clerk 402 King County Courthouse Seattle, Washington. 98104 Subject: 228 -79 -R Dear Sir: for Sincerely, March 20, 1979 We are opposed to the rezoning request of Edwin J. Becker. This is a residential area. This rezoning will allow further intrusion of business and industry into our residential area. It w i l l further. isolate-our small community. J f 1r .Becker- .expands his buildi ng.to:enclose: what :.:is stored. • outside now, fief~ chan i l l hat inafce in h i s truck parking area tf he about " :less pi ace :`to park his trucks where: does he . plan, to `:park : them?, We do not want any expan, sion of M -L zoning into our residential area. We do not want his trucks parked on the street. We have children who walk along .East Marginal Way South and South 128th to catch the school bus, to visit their friends' homes, and to run errands. We are concerned with their safety if there is any further in this trucking business. Mr. & Mrs.. Richard"B. Barnhart 3704 South 126th - Seattle, Washington 98168 DEPARTMENT OF PLANNING & COMMUNITY DEVELOPMENT BUILDING AND LAND' DEVELOPMENT DIVISION ENVIRONMENTAL ASSESSMENT AND . PRELIMINARY REPORT TO THE ZONING & SUBDIVISION'EXAMINER March 22," 1979 - PUBLIC BEARING APPLICANT: Edwin J. Becker ENVIRONMENTAL ASSESSMENT A. SUMMARY OF PROPOSED ACTION: This is a request to change the zone classification of the subject property from ML (PUD) to ML -P in order to expand a building beyond the limitations placed on the subject property through the Planned Unit Development procedure. B. GENERAL INFORMATION: Owner /Agent: Edwin J. Becker 12677 E. Marginal Way South Seattle, Washington 98168 Phone: 246 -9500 Location: Lying on the northwest corner of East Marginal Way" South and South 128th Street. Existing Zone: ML (PUD) Requested Zone: ML -P STR: ' W 10 -23 -4 Size: 1.91 acres Water District: #125 item No. Sewer District: Val Vue Received Fire District: #18 School District:. South Central C. HISTORY /BACKGROUND: Exhibit No 1. Pursuant to the State" Environmental Policy Act of 1971 (SEPA) Chapter 43 -21c and W.A:C. 197 -10 -300, and upon review of the applicant's environmental. checklist, the Manager of the Building and Land Development Division prepared a• proposed of non - significance on February 21, 1979, stating that the proposed development would not .constitute a major action significantly affecting the 'quality of the environment. Therefore, an environmental impact statement was not required prior to the: scheduled .public hearing. • 2. The subject property was zoned ML subject to a Planned Unit Development (File 200 -74 -R) in 1974. Final PUD approval was given in 1975 (File 249 - 74 - P) and later revised in 1977. 3. Prior to that time the zoning on the subject property was R7.2 . (Residential Single Family Distr.ict) . D. AGENCIES CONTACTED: 1. King County Division of Traffic & Planning: No response. 2. King County Division of Hydraulics: No response. 3. King County Division of Operations: No response. 4. Ring County Division of Health:' No response. 5. King County Division of Parks:• No response. 6. King County Water District #125: "We .dispute B•16, Item C, (on the applicant's.Envviron- mental Checklist.). on page six (6): Answer. .should be yes' due to the fact there is only a 4" main which' is for residential use only." 7. King County Division of-Planning: Comments by the Division are .included in this report. ATTACHMENT E FILE C FILE: 228 =79 -R King County Zonni doSubdivissiion Examiner at `�^ AM ID 8. Tukwila Planning' Department: No response. 9. Val Vue Sewer District: No response. 10. South Central School District: No response. 11. Washington State Department of Fisheries: •No response. 12. Washington State Department of Game: No response. 13. Washington State Department. of Ecology: No response. 14. Washington State•Department.of Transportation: No response. E. PURPOSE OF ML ZONE CLASSIFICATION AND PRINCIPLE USES PERMITTED: 1. 21.32.010 Purpose: The purpose of the. zone classification is to provide for the location grouping of industrial activities and disting- uished from major fabrication. A further purpose is to apply zoning protection to the industries so located, by prohibiting the intrusion of residential and institutional uses. • 2. 21.32.020. Principle Uses: Service stations,.boat.building and repairing, hotels- motels, machine shops,'fuel storage, warehousing. F. PHYSICAL LAND CHARACTERISTICS: 1. Topography: The subject property is basically. level. . 2. Soils: AgC,.Alderwood gravelly sandy loam, .6 -15% slopes. Permeability is.mildly rapid in the surface layer and subsoil arid very slow in'the substratum. Water moves on top of the substratum winter. Available water capacity is low.- Runoff is slow.to medium and the hazard of erosion is moderate. • 3. Vegetation: .The.vegetation on the subj.ect.property. meets the requirements set down under the Planned Unit Deveiopment:(249- 74 -1). 5. Water: There is a small stream near the western edge of the subject property. 6. Land Use: The subj.ect is developed with a .truck..storage area, warehousing building and office. Mr. Becker has allowed truck storage spaces on the north and. east sides of his property to be: used for .outdoor storage, resulting in an unsightly condition when viewed fxom the street. Also, the • fence line has been moved a.few feet further south, on the south soide of his property. Much of his•parking area. is in .dirt, resulting in a muddy condition during theh heavy rains, thus, :tracing• mud onto County roads. G. ACCESS: 4. Wildlife: None. Access to the subject property can be obtained from either East Marginal Way South which is designated as a collector arterial or from South 128th Street, a local access. street." The applicant uses both roadways for access to the present operation. H. NEIGHBORHOOD CHARACTERISTICS: 1. Zoning: The properties to the west and east are :zoned' SR (Suburban Residential). The property to the north is zoned CG and SR (Potential CG), and the land to the south is zoned CG -P (File #261-78-R). 2. Land Use: The property to the north deVeloped. with a commer- cial business. The properties to the west, northwest and.southwest are .developed with single family residences. The land to the :south has been rezoned to allow for employee parking for the facility on the :subject property. I. PUBLIC SERVICES: 1. Water & Sewer: The subject property is located within a.local service area (LSA) designated by the Sewerage General Plan and . adopted as a supplement to the King County Comprehensive Plan by.. Ordinance . #4035; FILE 228 -79 -R therefore sewer service is permissible. The site is located within a sewer district that has an approved. Comprehensive Plan adopted by the King County Council. Water District 1125 does not have an approved Comprehensive Plan. Correspondence from the water district indicates that only enough water for residential properties is available to the subject property. 2. Fire Protection: The. Washington Surveying and.Rating Bureau designates this area as a Class.7 Fire'Protection rating .on: a scale of 1 to 10 with 1 being high and 10 low. Any development of the site will require that King County Ordinance 43087 (Fire Hydrants and.Water Pressure Standards) be. met. • The applicant will be required .o submit a .letter from the King County Fire Marshall stating that sufficient water-is available to meet the above standards. 3. Transit: Metro Transit•Route 1130 provides service to the area along East Marginal Way adjacent to the .subject property. 4. Schools: The subject property is located in the South Central School District #406. 5. Capital Improvements:. There are no..capital.'improvements in the area that will affect the subject property. J. APPLICABLE COMPREHENSIVE PLAN PRINCIPLES AND POLICIES: 1. Policy C -3: "In order that. residential areas'. may . industrial traffic, industrial areas located'with access provided.only..to. 'portation routes which. include•' major • routes, expressways, freeways, major. and navigable bodies of water." COMMENT:•.The subject property abuts. East. Marginal Way South, a . secondary arterial. Traffic .generated. as a result of this request .would utilize South 128th Street, which•is a residential .street. The..sublect property is located at a five -way intersection, which' increases the possibility of congestion. and hazards normally associated. with truck traffic found in an ML zone. However, this application' represents an existing use and it is not known how much additional traffic would be generated when the existing building is enlarged. 2. Policy C -5: "Planned use types'of other industrial or industry. related uses should be discouraged from industrial areas, with. the exception of such eonvenience-uses. as banks., posts. offices, and restaurants." 3. Policy C -6: "Certain industrial uses generate.. heavy traffic, noise, smoke and other nuisances and should be located. where it is feasible to provide an adequate. transition, ;such .as light industrial areas, commercial areas, or open space, to adjoining land use types." . COMMENT: At present no natural transition exists .. between the exist- ing residential uses to the west, and the industrial use .on.the .subject property. 4. The Highline Community Plan, adopted by the King .County Council in December 1977 shows the subject property as "industry" which 'reflects the current use of the subject property. FILE 228 -79 -R be free from shall be.. major trans - arterial truck railroad lines, K. OTHER CONSIDERATIONS: 1. The applicant is requesting a change in. zoning to ML -P in an effort to remove the restrictions of the Planned Unit Development. .Under the current Planned Unit Development. application the applicant is not allow to enlarge, modify or in any way change.the subject property. 2. The adopted Highline Plan requires a 20', type III planting•strip adjacent to "RS" or "S" zoning (page 35 Highline Plan). 3. The property to the south (File #261- 78- R /Ray.Catron) was approved to CG - subject.to site plan approval. Mr. Becker.is .currently using this property for employee parking but has not .yet applied for site plan approval. .4. As a result of the Inco Express; Inc., hearing (File. #418 -78 -R) to the north, the Division of Traffic and Planning iS preparing a report on the effects of additional traffic on East Marginal Way South and whether traffic. should be restricted from traveling south.through the residential neighborhood. 5. Ordinance #3747, .passed by. theCouncil .on.�J.une 13, 1978, .states that where a conflict exists between the Comprehensive Plan and the High - line or Northshore•Community.Plan, the community plan shall govern. COMMENT: In this case no conflict exists. 6. The applicant.hasrequested ML -P, which includes the "E" suffix . or site plan approval. . "21.46.170 Site plan approval - .Purpose. Th.e.requirement for site plan approval.. is based upon a.rec.ognition that development on the designated property - nay . .reguire special conditions to protect the public interest, such as of right- of- way,.street improvements ;:screening land uses, signing controls, height regulations, permitted uses, performance standards; or other reguir or limitations to assure Its compatibility with adjacent land.uses'as well as the community." L. IMPACT ON NATURAL SYSTEMS: 1. Air and Noise: A minor increase in air and noise pollution may occur, primarily from increased movement of trucks on and off the site. 2. Water: No significant surface water or runoff problems should result if the applicant abides by the conditions of King County. Ordinance #2281, as amended. 3. Vegetation.and Wildlife: No significant vegetation or wildlife habitats will be affected by this development. M. IMPACT ON NATURAL SYSTEMS: Inasmuch as the subject property is currently. .developed with Indus-- trial uses, the environmental impact may be.minimal-.. The applicant would be obliged to meet the requirements of all pertinent .ccninty ordinances at the time of application for. a building permit for: expansion. A. CONCLUSIONS: CONCLUSIONS' AND RECOMMENDATION . 1. Environmental Significance: Pursuant .to the :State Environmental Policy Act of 1971 and .the SEPA. Guidelines adopted D.edember 12., 1975, the Manager of the Building: and Land D.evelopment Division adopted the proposed declaration of non - significance. as a. final. declaration after being circula- ted for 15 days and reviewed by all agencies of .jurisdiction. Based upon -4- FILE 228 -79 -R B. RECOMMENDATION: EBS:59:ss 3/14/79 .FILE 228 -79 -R the responses of the agencies of jurisdiction and all other reviewing agencies, a site inspection of the project, information submitted by the applicant, and an evaluation of the affected natural, physical and social systems as .outlined in this report, the Manager of the Building and Land .Development reconfirms this final determination'.and does not require an environmental impact :statement. 2. The subject request complies with the Highline. Communities Plan which shows the subject property as "industry "•.. This land use designation was placed on the property in recognition of the•present use of the site. 3. The request meets the 'policies of the 1964 Comprehensive Plan regarding the location of industrial uses.. .Adequate fire flow to meet the requirements of Ordinance #3087 may be.deficientH but this requirement can' be met through the "P" suffix procedure. 4. While the subject request-meets the 'policies of the•Highline Community Plan and the Comprehensive Plan and has..merit, this Division is reluctant to recommend approval without seeing any.site plans. When this request was first•heard in 1970, the issue of utmost importance was the impact the development would have on surrounding residentiai.•uses and the traffic. This concern is still valid, as witness.ed the concerns raised by neighbors on the case to the south (File #261 -78 -R /Ray Catron). 5. Approval of the subject request should be made subject to. con— ditions and without seeing a site•plan showing what the applicant intends to do with the subject property, this Division.is not in a ..pos:ition to formulate conditions. Also at issue. is the traffic on East Marginal Way South and within a short time the Division of Traffic and Planning will have completed their study of this roadway. :The outcome of this may affect the subject property. • 6. •ML -P zoning should not be granted until it can be. .denionstrated that some of the unsightly conditions would-be corrected and how the' property would be fully utilized. Place the•file on- call.. until the applicant'can,submit plan. showing how the property wil be developed and.how.much additional traffic will be generated as a result of expansion.' Another public hearing would be scheduled when this information becomes available. TRANSMITTED to-Parties •listed.hereafter: a/f/riA79 Edwin J. Becker, 12677 E. Marginal Way. South, Seattle, WA 913166 • * * * * * ** M -H RS 7200 S -R RS -7,200 Applicant; EDWIN J. BECKER -Zone Change: M -L (PUD) to M -L -P STR: •W 10 -23 -4 1 ' / /A S-R S- 3 S -S S-R A B -N S -R 1- M M-H S -R r M =Hi - RT S -R S -R . S -R C S -R RM-90 m S =R ( M'H■ We +via S -R EMI S-R � • S -. R . • '. . • 4 IBEX S -R S-R S -R C - s 130T" RM -900' M -L. ag0 ST. 8 +N 1 m O . 0 tD c0 �G 1 • S-R •9 21. S -R y1 ftesc-x;„ ;t IMMEkLSli IIINW# aei S -R S -R s S-R S. 124 5 ST S -R YV 8 -N Y1 t S -R a lac Til Propgaed Reclassification S -R 5. ar 133"D ST. • FILE . 228 - 79 - R S-R APPENDIX B I 400' M -P s-a • 000.74 - j. M-Hl r S-R . a UNCLASSIFIED O • USE • PERMIT . a M ..0.74 $ > a S -R S -R S. 122nd ST. S -R r S- 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 28 29 30 31 32 33 1 reuruary 1, ivuo - ORDINANCE NO. • AL ,1 . 1NIK000CED BY: WIT LiM! PROPOF °') ORDINANCE NO. 79 -240 AN ORDINANCE amending King County Title 21, as amended, by amending the Zoning Map, thereof reclassifying certain property 'thereon at the request. of Edwin J. Becker, Building and Land Development Division File No. 228 -79 -R BE IT ORDAINED BY THE COUNCIL OF KING COUNTY: SECTION 1. Edwin J. Becker petitioned on January 23, 1979, the the property described in section 3be'low be reclassified from M -L (PUD) to ML -P, and this application was assigned building and land development division file no. 228 -79 -R. SECTION 2 The report and recommendation of the building and land development division was transmitted to the zoning and subdivision examiner on March 15, 1979 and May 1, 197.9, and hearing was held by the examiner on-March'22, 1979 and May 8,'1979. The report of the examiner was filed with the clerk of the King County council on June 4, 1979, and the council approved the reclassification by Motion no.•.4301.on June 11, 19 to conditions which have now been satisfied. SECTION 3. The.legal description of the property to be reclassified is attached as Appendix A, and is hereby made a part of this.ordinance. The above described property.is shown on the attached map, which is designated Appendix B, and is hereby made a part of.this ordinance. SECTION 4. The King County council does hereby amend King County Council Title 21, as amended, by reclassifying that property described and shown in section'3, Appendices A and B'above, to ML - and directs the area map W 10 -23 -4 be modified to so designate. SECTION 5. This reclassification is granted subject to conditions adopted in Motion no. 430I, and .said conditions ATTACHMENT F 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 28 29 30 31 32 33 are incorporated herein as though fully set forth herein. INTRODUCED AND READ for the first time this �i.. day 197. day 9e,Gn.Gc4(44. KING COUNTY COUNCIL KING COUNTY, WASHINGTON ATTEST: PASSED this . rk of frZOilncil APPROVED this ZS d day of /�Or oG 1985. 1985' LEGAL DESCRIPTION: Lot 4 and Lots 18 through 25, inclusive, Block 9, Riverton Add., recorded in Volume 13 of plats, page 36, in King County, Washingtabn, EXCEPT COUNTY ROADS. F: No. 228 -79 -R • APPENDIX A APPLICANT: EDWIN J. BECKER REQUEST: M -L (P.U.D.) to M -L -P STR: 1! / /A W 10 -23 -4 and W 15 -23 -4 Proposed Reclassification ILE 228 -79 -R APPENDIX B 0 1 200' "SEE ATTACHED MAPS" PAGE 1 of 3 M -H -P i 417 -70 I r M H -P o I 1 239-!0 1 I o , L___, S -R L) M -H M -H S —R (15,000) S —R (15,000) ST. S -R IM-H) ST. S —R (15,000) UNCLASSIFIED USE PERMIT SCALE: .I"= 200' • SEC. W%2 10 -23 -4 FILE Nl° 228 -79-R PAGE . 2.oc 3 M - L- M -P 220 -74 260 -76 S -R S —R (15,000) CC 0 0 0 N RS-7,200 TUKWILA ORD. 1283 12-16 82 1 47 . x '140' . , § ' i^.'�4Fi➢ . The above photo is of the LDR portion of the property. Notice that there are no buildings, the area is gravel, and that semi truck trailers are parked in the area. Becker Trucking Facility East Marginal Way S Photo taken 5/13/03 by Kathy Stetson, Code Enforcement Officer ATTACHMENT N 15 16 17 18 19 20 21 22 23 24 25 13 14 5 6 7 8 9 10 11 12 1 2 3 4 BEFORE THE HEARING EXAMINER FOR THE CITY OF TUKWILA BECKER FAMILY REVOCABLE NO. L04 -026 LIVING TRUST, VS. CITY OF TUKWILA, a municipal corporation, I, Troy Wallin, declare and state: 1. I have lived at 12607 East Marginal Way South since 1999. 2. My property is located north of the Becker Trucking site. 3. Since I have lived north of the Becker Trucking site, the west portion of the site has been used to park semi - trucks and semi -truck trailers. This parking occurs 50% of the time. The other 50% of the time the area is vacant. Sometimes trucks are washed in this area as well. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. ATTACHMENT 0 Plaintiff, Defendant. DECLARATION OF TROY WALLIN KENYON DISEND, PLLC THE MUNICIPAL LAWFix,u DECLARATION OF TROY WALLIN - 1 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 CADOCUME-MRANDO-1 \LOCALS-1 \TempTLD003- 3.DOC/B/07/14/05 (425) 392 -7090 FAX (425) 392 -7071 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 3 5 6 7 8 9 10 DATED this J 'day of July, 2005 at Tukwila, Washington. DECLARATION OF TROY WALLIN - 2 CA DOCUME- 11BRANDO- 11LOCALS- 11TempVID003- 3.DOC/B/07/14/05 KENYON DISEND, PLLC THE MUNICIPAL LAwF!@M 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 2 3 4 7 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 TUKWILA BECKER FAMILY REVOCABLE LIVING TRUST, vs. CITY OF TUKWILA, a municipal corporation, Plaintiff, Defendant. DECLARATION OF BRIE CAMPBELL - 1 C: \DOCUME— l\BRANDO -1 \LOCALS — I \Temp\PLD003- 2.DOC/B/07/ 14/05 NO. L04-026 DECLARATION OF BRIE CAMPBELL I, Brie Campbell, declare and state: 1. I have lived at 3827 South 126th Street since 2004. 2. My property is located adjacent to the Becker Trucking site. 3. Since I have lived adjacent to the Becker Trucking site, the west portion of the site has been used to park semi- trucks and semi -truck trailers. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. D A T E D this 1 7 ' d a y of July, 2005 a t Tukwila, Wa • ' . gt • ATTACHMENT P �, " , .Aa , 1� KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 3 5 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 TUKWILA BECKER FAMILY REVOCABLE LIVING TRUST, vs. CITY OF TUKWILA, a municipal corporation, ATTACHMENT Q Plaintiff, Defendant. I, Aaron Hundtofte, declare and state: 1. I have lived at 3827 South 126th Street since 2004. 2. My property is located adjacent to the Becker Trucking site. 3. Since I have lived adjacent to the Becker Trucking site, the west portion of the site has been used to park semi - trucks and semi -truck trailers. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this ( day of July, 2005 at Tukwila, Washington. DECLARATION OF AARON HUNDTOFTE -1 C: \DOCUME— i\BRANDO -11 LOCAL S-- 1 \Temp\PLD003- 1.DOC/B/07 /14/05 NO. L04 -026 DECLARATION OF AARON HUNDTOFTE Aaron Hun • ' ofte KENYON DISEND, PLLC THE MUNICIPAL L4wFJRN 11 FRONT SnsEEr Soun1 ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 12/16/02 : 12:58 FAX .208 ' 1833 Business License: List owners/ /psumera/ divers: 'New Business Paid: D Cash R rs Building: • , Building/sign permit attached Police: Date issued: Please I.efum • Title .. • 6200 Southcenter.Boulevard Tukwila, Washington : 98188 -2599 2064331800 ; - . '. This Is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain . a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31= pP ENEWAL :O NEW Business Name Local6iseet e Kc�'"i�j c)f..CIN , lv =t ug � trade . e n SL�a 77LG. 1 . wA. ' 9c'/ ('2 Loom PO box & zip, if apolicabie Business Phone (brads wee code):. - 2/7C- - Vito - -95 Locoi manager (Include name and hone . CITY TUKWILA !spur Door- to-door adicttation paddletT • 6iNa bush ex Telephone sc dtaton? " : Ai No • • • . 0=eractor toad abide S' ., : . iNo - ' d ; show/abaft ad / n epaax bal 6 balm • twits; nod Information m rev "Ida ante= t9l O escrloon =wetness (give / also, li r>y+pes cold c�ratore0t r vi ce.t �6 • . i e j ,"rfc<) 4 • . g Mai silos be canduxmdT MINI gib Iota) employoos at Tukerllaloc Lion, d erresloysu h sub type at enploymont . .. ownets and ra+ V". wt .FILL OUT THIS FORM IN ITS ENTIRE fY INCOtl9P .ET- 6.:APPLICATiarl,. WILL NOT DE ACCEPTED f] Yes DYes: C1 Yaa L] Yes 1. N � ° � ; �u�a a hazardous, or Na . C Yec It•ee, aisle type seequengly: you PRESEMa any; construction or remodeling? ■ stslhacn of commercial storage racke hate latian new signings =changes i'n (meting Show 2002 City of Tukwila M Renewat - P laruung. . . Zoning desIgnaffort Fue U VINO. VI. z Ice n Yea . -1 youse Brant it>o buHdnacr Yew — Application Date: Application for 2003 .: ity Business License Corporate Address, if different from local: - L� etCEL Cr.I ntG , L G 3Sr+ s.. i c e l e24 78/4 qG z . Indicate cemerslip status: D Individual . D LtA Coraoration • tY Y ATTACHMENT R Signature: Pint Name' Title/OitM:a. My ganging o D and/ Qarnblinp devices on premises? &! N D Pere ershtp ❑ Nor profit Data at Birth My amussunt do vIc ar No D Yes Y Yes', number of claims: V�� I Sim =icorapace used: sit OM= Appropriate building permits MUST be obtained prior to • -h senstrurfon or rack W,. /emits mg:rlrrd Copies of the'fiital is MUST accompany thti appllcaEton. year, Latta:mart:maw tu3nee38 a Retail . Other: Os Sect : ._ (J/ alien an reverse *kW V you ern a now n r amnions isms se a n p —p not. Ilrs alarm iinaaelaetlon provisions en river= sld. WA State Sales Tax N cr late: ` A Received by. UBl number 9 di �-- 1 m..rdW the Information contained herein is correct I understand any untrue tatement le Cause an esf� license. b °ta3o3V .00 0 ..6 : $100.08 101 and above- rrrpleted application fee tp Tukwila City Hall at address showq above, Aitentign: City Clerk`s Office • r, _ 2/18/2003 5:04 PM FP Becker Tracking Inc. TO: 425 -955 -c PAGE: 002. OF 002 R FEB 2 0. DEVELOPMENT Steve Lancaster Director of Community Development City of Tukwila 6300 Southcenter Blvd. Suite 100 Tukwila, WA 98188 Dear Mr. Lancaster, The following information concerns Becker Trucking, and its use as a truck terminal located 12677 E. Marginal Way S. and the fenced, paved commercial parking lot located across the street at 3800 S. 128th St in Tukwila., WA. I am writing to verify that the Becker Trucking has used this property since April 2002 to park semi -truck and trailers. It has always been our intent to continue to use this property for the commercial parking of semi - tractors, trailers and employee vehicle parking. Sincerel Rolan Becker President COMMITTED 10 EXCELLENCE ATTACHMENT 5 Date: Paid: Cash b i Check No.: tbL(.7 Buildin : C Building/sign permit attached Police: Date issued: 2004 License .u,: ri . ZUb. 4- 1644 City of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188-2S99 200.433 -1800 Receipt No.: a f 1 c Zoning designation: t t _c ATTACHMENT T 4 ui•rz 't'unn Planning: Qv Ea e_ Sionature: Application for 2004 City Business .License FiLL OUT THIS - FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31 Business License:. G RENEWAL Business Nama. ,�+r^- Gt9 mod_ RNd- Son r Lc/ci1 t i e Local Street / 7' Ep /97A-17 w f La sa Address (Be sure to brckrde zip ' +r '-T7' �'� 144) ! Lit Ll^ �f X� code+ 4 -dIgit extension) ._ Local PO box & zip, if applicable Business Phone (incL area code+ ( ) es --/9 57 home phone): rrwn GEone ;/ :.. The moil ,C t7 Loclal manager (Irxyude x16 l '� Zs r � owners/partners) office Sdb b,� .o. o !) S' /de 12 ,5'e - Ls =f your Yes Yes a Yes Yes Door -to -door solicitation/peddler? business Telephone solidtation? Contractor based outside City? if "Yes", showlobstte address in apace below Operated from your Tukwila widence? it 1r:formation on reverse side and s ri Description of business (gyve details, also, list types of products sold orstored): uc Will retell sales be conducted? El Yes trilmo Total employees at Tukwila location, inducing owners and Full- me: r .q,q Part-time: E: Yes Yes IJ Yes Application Date: ma c/ — y orporate Address, 11 diffeerent from local : Number of employees in each type of employment Wholesale:.er- grin i use/store/discharge flammable, hazardous, or biohazardous materials? Local .Fme ray If •Yes' state type acid qt/Bratty: Are you PRESENTLY doing any: construction or remodeling? `o installation of comma rclarst rage racks? o Installation of new signage or changes In ezisIIng signage? to ff Renewal �► Show 2003 City of Tukwila. Business License # Corporate Phone: 4447 4 Indi ate ownership. .- k._■■ • if Yes Individual i eannership LI Co • oration _ : Non -• rofit of Birth 7L 4 6.7 2f6 Vy! Any gambling and/or gambling devices on premises? PA 7.7 Yes • Any meat devices on premises? No Yes If "Yes•, number of devices: Size at Door space Original opening date of business In Tukwila. sq.1t � a� .. rtr Office: Retail: Warehousin Other ruclr m aS3 63/ -3,2 91- Appropriate building permits M ST be obtained prior to start of construction or rack installaation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. If business name has changed in past year list former name: • /V k o. • R "affactad empl _ . ' at the sae • which this business license application is feed: (Read CTR information on reverse side) ff you area new building owner or planning to sell a build na— please note firs alarm installation provisions an reverse side WA State Sales Tax # or UBI number (9 digits) :. Q3 -J17//- 6 c� l certif the Information contained herein is correct. I understand that any untrue statement Is cause for revocation of my license. Print) pe: Title /Off 17. LICENSE FEE (based on number of employees) CHECK ONE Ns 101 and above Lel Uus/ Vu4 Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office U4 /L11 /U4;'' '10:1b t'AA LUO ' 1.i loss (for new building owners or those planning to-sell a building in Tukwila) As required by Tukwila Municipal Code (TMC) 16,40.100(5 }: when sold, existing commercial, .industrial and multi- family dwellings which are not fully protected by an automatic sprinkler system shall have an Automatic Fire Alarm system installed. If not installed by the property owner, upon sale of the property it will be the responsibility of the seller to advise the buyer of this requirement. Multi family dwellings which are sold and protected by an automatic' sprinkler system shall install a fire alarm system complying with TMC 16.40.110B. AUTOMATIC FIRE. ALARM INSTALLATION NOT.ICE • =C Tip= INFO ION ( "Commute Trip Reduction" Program) In 1991, Washington State passed a law (RCW 70.94.!21-551) directing city and county governments to institute programs which require their major employers (with 100 or more affected employees - including owners and managers - at a single workslte) to take measures to reduce the number of single- occupancy vehicle commute trips per week per employee. "Affected employees" are those full -time employees who are scheduled to begin their regular work day between 6:00 -9:00 AM, on at least two weekdays per week., 12 months of the year. (For purposes of this law, 35 hours per week Is considered full - time.) Please indicate the number of your affected employees in the space .provided on the front of this application. If you need more information about Tukwila's Commute Trip Reduction Program, please contact the Commute Trip Reduction Coordinator at 206 - 431.3670: . ,(for hotels /motels) Businesses engaged in ' providing' overmgtit lodging (hotels /motels) are required to participate in the SAFETY IN OVERNIGHT LODGING PROGRAM per TMC 5.60 Copies of the governing ordinance and program description can be obtained from the. Tukwila Police Department Crime Prevention Unit. THIS AREA IS TO :BE_COMP .ETED -, ONLh BY -APPLICANTS_ WITH-HOME OCCUPATION HOME OCCUPATION (business operated out of your Tukwila residence) Conditions for Issuance of Business License Pursuant to Tukwila Municipal Code Section 18.06.430 and City policy, home occupations (businesses conducted in .and out of a residence or apartment). are defined and must comply with certain conditions, as follow: - 18.06.430 Home occupation. "Home occupation" means an occupation or profession which is customarily incident to or carried on in a dwelling place, and not one in which the use of the premises as a dwelling.place is largely incidental to the occupation carried on by a member of the family residing within the dwelling place; provided, that: 1. There shall be no change in the.outside appearance of the surrounding residential development; 2. No home occupation shall be conducted in any accessory building; 3. Traffic generated by such home occupations shall ' not create a nuisance; 4. No equipment or process shall be used in such home occupation which creates noise, vibration, glare, fumes, odor, or electrical interference detectable to the normal senses off the lot; 5. The business involves no more than one person who is not a resident of the dwelling; and 6. An off- street parking space . shall be made available for any non - resident employee. The above conditions are interpreted to mean at a. minimum that • Employees do not come to the property or. a daily or weekly basis.. • No more than one work car will be parked on or near the property at any one time. • Outside storage of materials will not occur. • Customers do not come to the premise (with the exception of daycares). The business operator visits customers at their location. The interlor of the premises appears primarily to be a residence. As the operator of the home -based business it is necessary for you to sign below, thereby attesting that you have read the above and agree to these conditions throughout the )Mime of the business conducted at the speci>red address. Date Y' Cszc� Signature rn�»1 7 tect7 me? Print Name Ow 17 .e v 7111e /Position AA TI 'i UA1111.A I¢l UU4/ UU4 Busin ess Name and Address: h E / 9 moon And r7 uc iy L 477 IW Z vy,rl #4. zvity So ✓ u 1 44.) Cz/o / g 8 nua. c. c uu4 c. i arm To Whom It May Concern Becker. Trucking, Inc. used this property as part of their trucking busi 4 6-:/ ,spa ,,�. ., Qtvio oft accts & taxtfle41 ed backer f eb stint or trucking use - 7-30.04ads STATEMENT OF TRUCKING USE Date Re: Continuous Trucking Use Of Property At 12677 East Marginal Way South, Tukwila, Washington Edwin J. Becker is the owner of this property.. Becker Trucking, Inc. paid rent fur use of this property thru September, 2002, and for one day in October 2002. Becker Transfer, Inc. paid rent for use of this property September, 2002 thru January, 2003. Edgmon and Son Trucking paid rent for use of this property February, 2003 thru July, 2004. Clayton. M. Betz, Accountant For Edwin J. Becker 253 -945 -2053 Date - -"30 --,oir lan Becker. President Becker Trucking, no. Becker T nsfer, Inc. used this propeV as part of their trucking bs for /047 1h e L S .0 e pro per ' ker, Presidennt, � Pat Becker, Becker Transfer, inc. z. wt./ t cc C 57 p- d t pu"6pdr� , O y Date ATTACHMENT U period a• • e, EXHIBIT 4 Jul 19 05 11:33a Lic4nsedin Wallington and Idaho VIA FACSIMILE AND US MAIL (425) 392-7071 (206) 433 - 1833 Shelley M Kerslake Kenyon Disend PLEC 11 Front Street South Issaquah, WA 98027 -3 820' IT De °artment Steve Lancaster Director ofDCD City of Tukwila 6300 Southccnter Blvd; Ste: 100 Tukwila, WA 98188 -8548 ROBIE G. RUSSELL ATTORNEY AT MW 76 South. Main Sired Seattle, Washington 98104 -2514 0cstt ki20602.14104 (206) 621 -2102 September 13, 2004 206 - 433 - 7154 Re: Truck Teiiriiiiar= -17b'lfi East Marginal Wav South Tukwila, WA Request for Code_Interpr Dear Ms. Kerslake and Mr. Lancaster: Sip 1 4 7UQ • { cyr 98fO/OOt1 1 have received Mi "1Cerslake's letter dated August 27, 2004. Please note that my address is 761 South Main Street, not 315 Second Avenue South. As l.. indicated. in mylletter on Friday, 1 did;pot receive Ms. Kerslake's letterzintitSeptbef ID; 2004. We agree With request that we put this.matter at issue by requesting a code interpretation; from the Director. This Letter constitutes =formal req forrarcode- irttc-pretation nor your assertion, that the valid non - conforming use of the Becker property has been abandoned or tertninated :' However, we have'a feW Additi6iral'concerns that need to be addressedd. First, as you may know, we have an outstanding ,.request: for: public ,records- relating to 'this, +m1l J 11 tdmit ltr sepr »brr.O. 3( 4 p.2 Jul 19 05 11:33a City of Tukwila September 13, 2004 Page 2 IT De' - 'rtment 206- 433 -7154 P.3 matter. We reason ably expected to be able to examine the records prior to having to take any action on this matter. Mr. Crittenden made his request on August. 12 On August 16th, -the .City indicated_ that the records would be ready by.September 2nd_ That did not happen, - and - the City is already arguably in viol Lion, of RCW Chapter 42,17. = As of the date -of this letter, Mr. stg has not.received a substantive response to his request. We must insist that the City Talce further action ora4his matter, inckrdinrissui:rg a cod aPretatiot,' until1VIf _it(ivlen's re-gait. for publib records is fully resolved: Second, because it is undisputed that the property was used as a truck terminal prior to April' 2002, the City has the Aden t r pfove that such use war abandoned 'tit continued. We ha . tf right to submit information or argument for theDirector's consideration, but we are not required to do so. However, we may-submit additional information and intend to do so in the .r. fiiture... We also i have the right to wait for the Director's decision and submit responsuce.infora ation and: argurnentt to the hearing examiner. Third, pursuant to TMC 18.96.020we_regaest_that the code interpretation be in writing;,d that an orderly retrievable record.h kept. Fourth, Craving t eviewe(TMC' Chapt . .18.,104 k appears that there are no further administrative appeals from a decision of the hearing PX9miner Therefore any decision of the hearing examiner would be appealable to superior court under LUPA (RCW Chap. 36.20C) - Please confirm that this is your underst cn as RGR/mj 1981 01001 ib.ukwita.ler sep:netk. 13. 20i1.4 Thank you fbryour coirtiiiued' c9operation. cc: Edwiri T. Becker William John Crittenden Jun 30 05 03:17p Kenyon Disend Litenscd in Washington and Idaho Our Reference No. 9610/0011 Shelley M. Kerslake Kenyon Disend, PLLC 11 Front Street South Issaquah, WA 98027 -3820 Dear Ms. Kerslake: You will find enclosed a Stipulation and Order in the foregoing matter which sets out our understanding of the matters discussed at the prehearing conference on June 7, 2005. i have signed the document on behalf of the Trust. if you find it acceptable, pleased sign and forward it to Ms. Watanabe for execution and entry and return a copy to me. RGR /mj 98101001 lltuku ile.ly June 29, 2005 Re: City of Tukwila -- 12677 E. Marginal Way -- L04 -026 Please call with any questions. cc: Edwin J. Becker ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 - 2514 Facsimile (206) 621 -2104 (206) 621-2102 June 29, 2005 Sincere! bie G. ' ussell 425 - 392 -7071 p•1 Jun 30 05 03:1Bp 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1 8 19 20 21 22 23 24 25 26 KenBon Disend in re CODE INTERPRETATION by the CITY OF TUKWILA, DIRECTOR OF COMMUNITY DEVELOPMENT for Property Located at 12677 EAST MARGINAL WAY SOUTH TUKWILA, WASHINGTON Roble G. Russell, WSBA No. 22033 Attorney for Appellant Shelley M. Kerslake, WSBA No. 21820 Attorney for City of Tukwila STIPULATION AND ORDER - 1 BEFORE THE HEARING EXAMINER OF THE CITY OF TUKWILA 425 - 392 -7071 NO. L04 -026 STIPULATION AND ORDER I. STIPULATION Appellant Becker Family Revocable Living Trust ( "Trust "), by and through its attorney, Roble G. Russell, and the City of Tukwila, by and through its attorney, Shelley M. Kerslake, h ereby stipulate to the entry of the f7ilowing order. Rolm 0. RusSELL ATTORNEY AT LAW 10Sr thM5in i su10a W..hi.po.9Rla -2110 (205) 021.2114 p•2 Jun 30 05 03:18p Kenyon Disend II. ORDER Based on the foregoing stipulation of the parties, it is hereby ORDERED THAT: (1) The findings and conclusions in the code determination issued by the City of Tukwila on or about January 28, 2005, are vacated and the following stipulations are substituted for those findings and conclusions. (2) The property located at 12677 East Marginal Way South in Tukwila, Washington ( "Property "), including that portion of the property zoned Low Density Residential ( "LDR "), is currently used as a "truck terminal" as that term is used in the Tukwila zoning code. (3) As of the date of this Order, the use of that portion of the Property zoned Commercial/Light Industrial ("C/L1 ") as a truck terminal is a permitted use under TMC 18.30.020(61). (4) As of the date of this Order, the use of that portion of the Property zoned LDR as a truck terminal is a valid nonconforming use under TMC 18.70.040. (5) As of the date of this Order, the valid nonconforming use of that portion of the Property zoned LDR as a truck terminal has not been abandoned or terminated for purposes of TMC 18.70.040(3). (6) The existing valid nonconforming use of that portion of the Property zoned LDR as a truck terminal may not be expanded except as permitted in TMC Chapter 18.70. (7) The issue of whether any new construction activity, including repairs or replacement of existing structures and /or new construction, on that portion of the Property zoned LDR will be permissible under TMC Chapter 18.70 is premature, and will not be STIPULATION AND ORDER - 2 425- 392 -7071 ROBIE G. RUSSELL ATTORNEY AT LAW 76 Saab Main Sreat Sena¢,Wa4U Ian 96107 - 7314 (706)671 -7100 P.3 ti Jun 30 05 03:18p Kenyon Disend 1 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 detennined in this case or by this Order. The City of Tukwila and/or the current owner of the Property may address that issue if and when the current owner of the Property applies for any required permit(s). DATED THIS day of , 2005, STIPULATION AND ORDER - 3 Anne Watanabe Hearing Examiner Pro Tem City of Tukwila 425- 392 -7071 p.4 Roam G. RUSSELL ATrOKNGY AT LAW 74 soak Mai. Sur, Scauk. Wallington961014514 (206) 621.11M In the Matter of the Notice of Appeal of BECKER FAMILY REVOCABLE LIVING TRUST BEFORE THE HEARING EXAMINER CITY OF TUKWILA from a Code Determination by the Director of the Department of Community Development, concerning property addressed as 12677 East Marginal Way South File Number: L -04 -026 ORDER OF CONTINUANCE At a prehearing conference held on June 7, 2005, the parties agreed that the hearing on this matter should be continued to allow for possible settlement negotiations and/or filing of dispositive motions and responses. The hearing is hereby continued to July 29, 2005, commencing at 9 a.m. in Tukwila City Council Chambers. Please contact this office at (206) 684 -0521 if you have any questions. Entered this 14 day of June, 2005. d A 444 -e- Anne Watanabe, Hearing Examiner Pro Tem City of Tukwila REceivE 5 Z005 JUN 1 oEVE OPM NT In the Matter of the Notice of Appeal of BECKER FAMILY REVOCABLE LIVING TRUST ` '**119 RECEIVED BEFORE THE HEARING EXAMINER MAY 13 2005 CITY OF TUKWILA COMMUNITY DEVELOPMENT from a Code Determination by the Director of the Department of Community Development, concerning property addressed as 12677 East Marginal Way South Entered this 12 day of May, 2005. File Number: L -04 -026 NOTICE OF PREHEARING CONFERENCE This hearing on this appeal is scheduled to be heard on June 24, 2005. A prehearing conference on this matter is hereby scheduled for 2 p.m. on June 7, 2005, in Conference Room 2 in the office of the Department of Community Development, Suite 100, 6300 Southcenter Boulevard, Tukwila, WA 98188. The conference shall be held for the purpose of clarifying the issues on appeal, and to consider any other matters deemed appropriate for the expeditious and orderly disposition of the proceedings. Anne Watanabe, Hearing Examiner Pro Tem City of Tukwila MICHAEL R. KENYON BRUCE L. DISEND SANDRA S. MEADOWCROFr SHELLEY M. KERSLAKE STEPHEN R. KING HEIDI L. BROSIUS Ms. Anne Watanabe Office of the Hearing Examiner City of Seattle 618 Second Avenue, Room 1320 Seattle, WA 98104 Re: City of Tukwila - Becker Appeal, File No. L04 -026 Hearing Date: June 24, 2005 Dear Ms. Watanabe: cc: William John Crittendon Robie G. Russell Brandon Miles ✓ Jack Pace L KENYON DISEND, PLLC L ° ' THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH May 9, 2005 Very truly yours, KENYON DI —401110 lley lrslake G:\ APPS \CIV\TUKWILA\Letter\LTR00193 - Becker - HE request prehrg conf.doc/SAI/05 /09/05 SERVING WASHINGTON CITIES SINCE 1993 RECEIVED MAY 11 2005' COMMUNITY DEVELOPMENT LLC KERRI A. BERGLAND ISSAQUAH, WASHINGTON 98027 -3820 MINDY A. ROSTAMI (425) 392 -7090 LACEY L. MARTIN (206) 628 -9059 PETER B. BECKWITH FAX (425) 392 -7071 JOSEPH P. LOUGHLIN THOMAS J. GUILFOIL JULIE C. WALTERs The City of Tukwila requests a prehearing conference in the above matter to discuss narrowing issues on appeal. I will be out of town from May 10th through May 24th. Thus, I respectfully request that if the Hearing Examiner grants our request that the prehearing conference be held after May 25th. May 4, 2005 Ms. Anne Watanabe Office of the Hearing Examiner City of Seattle 618 2 Ave, Room 1320 Seattle, WA 98104 RE: Becker Appeal, L04 -026 Hearing Date June 24, 2005 Dear Ms. Watanabe: Enclosed you will find the Notice of Appeal of the Director's Determination regarding the non - conforming rights for the Becker Property, located at 12677 East Marginal Way South. The Department has assigned the following file number to the appeal, L04 -026. The hearing has been scheduled for June 24, 2005 at 9am. The Hearing will be conducted in the Council Chambers at 6200 Southcenter Blvd, Tukwila, Washington 98188. If you need assistance or have any questions feel free to call me at (206) 431 -3684 or send an email to bmiles@ci.tukwila.wa.us. Sincerely, r(ndon J. Miles Assistant Planner City of Tukwila Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director cc. Shelley Kerslake, ttorney File (L04 -026) 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 VIA FACSIMILE (425) 392 -7071 Shelley M Kerslake Kenyon Disend PLLC 11 Front St S Issaquah WA 98027 -3820 VIA FACSIMILE 206 - 431 -3665 Brandon Miles City of Tukwila, DCD 6300 Southcenter Blvd Ste 100 Tukwila WA 98188 -8548 Re: Dear Ms. Kerslake and Mr. Miles: cc: Robie Russell Edwin J. Becker WILLIAM JOHN CRITTENDEN ATTORNEY AT LAW 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASHINGTON 98103 (206) 361 -5972 FAX: (206) 361 -5973 wjcrittenden ©comcast. net April 19, 2005 Property located at 12677 E. Marginal Way; Hearing Scheduled for April 19, 2005 Sale of Property to C& D Wells, LLC Very truly yours, Will am John Crittenden For your information, the property at 12677 E. Marginal Way has been sold to C& D Wells, LLC, and the sale is expected to close by April 29, 2005. Mr. Russell and myself will continue to prosecute the appeal of the director's interpretation. No action is necessary on your part. APR 2 005 DE E p p N1T Y M ENT April 14, 2005 City of Tukwila Steven M Mullet, Mayor Department of Community Development Steve Lancaster, Director Mr. William John Crittenden 927 North Northlake Way, Suite 301 Seattle, WA 98103 RE: Your Letter Dated March 31, 2005 Date Change for Hearing Dear Mr. Crittenden: The hearing has been rescheduled for 9am on June 24, 2005. The hearing will be conducted in the Council Chambers at the Tukwila City Hall. Be advised that effective April 13, 2005 the City of Tukwila has retained a new Hearing Examiner. The City of Seattle will now be providing Hearing Examiner duties for the City of Tukwila. A staff report will be generated and a copy will be sent to your office at the same time it is sent to the Hearing Examiner. If you have any questions, please call (206) 431 -3684 or send an email to bmiles@ci.tukwila.wa.us. Sincerely t�4 Brandon J. Miles Assistant Planner cc. Shelle J stake, City Attorney File 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206- 431 -3665 April 8, 2005 Ms. Christie Wells Wells Trucking and Leasing Inc 7265 2nd Ave South Seattle, WA. 98108 RE: Letter mailed to you on March 10, 2005 Dear Ms. Wells: Attached to this letter you will find a letter that the City mailed to you on March 10, 2005. The letter was mailed to the address listed on your Tukwila Business License Application. However, it appears that you do not receive mail at the Tukwila location and the letter was sent back to the City. Sincerely, on J. Mi es Assistant Planner C ity of Tukwila Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director cc. File (L04 -026) 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 03/31/2005 11:10 2063615973 VL4 FACSIMILE (425) 392 -7071 Shelley M Kerslake Kenyon Disend PLLC 11 Front St S Issaquah WA 98027 -3820 VIA FACSIMILE 206-431-3665 13Wandon Miles City of Tukwila, DCD 6300 Southcenter Blvd Ste 100 Tukwila WA 98188 -8548 Dear Ms. Kerslake and Mr. Miles: WILLIAM JOHN CRITTENDEN ATTORNEY AT LAW 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASNINGTiON 98103 (206) 361 -5972 FAX: (206) 361 -5973 wjaittendenecorncastnet March 31, 2005 Re: Property located at 12677 B. Marginal Way; Request for Report by Department (TMC 18.112.020); Request for public records (RCW Chap. 42.17) Heating Scheduled for April 19, 2005 As you know, a hearing in this matter is currently set for April 19, 2005. WILLIAM J CRITTENDEN PAGE 01/02 One of our kcy witnesses, Rolan Becker, is not available on that date. Mr. Becker will be out of the country on a previously scheduled trip from April 8th until April 25th. We will need to reschedule the hearing until some date after the 25th. I spoke with the hearing examiner's office today. They indicated that the City needs to make arrangements to reschedule the hearing. Please let me know what other dates are available. In addition, I have requested a copy of the staff report contemplated by TMC l g.112.02ff(A). Your letter dated March 25, 2005 indicates that no such report exists at this time. That's fine. But I need to know whether the City intends to prepare such a WILLIAM J CRITTENDEN PAGE 02/02 Page 2 of 2 report before the hearing and, if so, when we can expect to receive it. Please get back to me about that as well. 03/31/2005 11:10 2063615973 Thank you for your prompt attention to these matters. Very truly yours, cc: Roble Russell Edwin J. Becker William John Crittenden March 25, 2005 •ke Cizy of Tukwila Department of Community Development Steve Lancaster, Director William John Crittenden Attorney at Law 927 N. Northlake Way, Suite 301 Seattle, WA 98103 RE: Your letter dated March 16, 2005 Dear Mr. Crittenden: The City has received your public disclosure request of March 16, 2005. You have asked that the City provide you with a copy of the staff report that will be going to the Hearing Examiner. At this time, the City has no such staff report that satisfies your request. You also asked that the City provide you with any procedures, policies, rules, forms or other information relating to the conduct of hearings before the City Hearing Examiner. The City has no such documents satisfying your request. Sincerely, Brandon J. Miles Assistant Planner cc. Shelley Kerslake, City Attorney Jack Pace, Deputy erector File(04 -026) New Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 VIA FACSIMILE 206 - 431 -3665 Brandon Miles City of Tukwila, DCD 6300 Southcenter Blvd Ste 100 Tukwila WA 98188 -8548 Dear Mr. Miles: WILLIAM JOHN CRITTENDEN ATTORNEY AT LAW 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASHINGTON 98103 (206) 361-5972 FAX: (206) 361 -5973 wjcrittenden ©comcast.net March 16, 2005 Re: Property located at 12677 E. Marginal Way; Request for Report by Department (TMC 18.112.020); Request for public records (RCW Chap. 42.17) I have received your letter to Mr. Russell dated March 7, 2005. I1,aD MAR 1 2005 OtvELOPm NT TMC 18.112.020(A) provides that when a Type 2 decision has been set for an open record hearing the department shall prepare a report. Please send me a copy of that report including any appendices or attachments. I have reviewed TMC Chapter 2.76 (Hearing Examiner); TMC Chapter 18.104 (Permit Applications); TMC Chapter 18.108 (Decision Processes); TMC Chapter 18.112 (Public Hearing Processes); and TMC 18.116 (Appeal Processes). I have not found any information on how hearings before the hearing examiner are actually conducted. Please provide me with copies of any procedures, policies, rules, forms or other information relating to the conduct of hearings before the hearing examiner. Thank you for your prompt attention to this matter. cc: Robie Russell Edwin J. Becker Shelley Kerslake Very truly u s, Will F' John Crittenden March 10, 2005 Ms. Christie Wells Wells Trucking and Leasing Inc 12677 East Marginal Way S Tukwila, WA 98168 city of Tukwila Department of Community Development Steve Lancaster, Director RE: Business License Application Dear Ms. Wells: The Planning Division of the Department of Community Development has been routed a copy of your business license application. The Planning Division has signed off on your business license application. However, please be advised of the special circumstances related to the site you have located. The property is currently zoned Commercial Light Industrial (C/LI) and Low Density Residential (LDR). Enclosed you will find an aerial photo of the property with a zoning overlay which shows the particular zoning areas on the property. A truck terminal operation is an outright permitted use in the C/LI portion of the property. However, such an operation would not be permitted in the LDR portion of the property. Earlier this year the City was requested by the property owner to make a Code Interpretation regarding the LDR portion of the property. The City concluded that the LDR portion of the property does have non - conforming rights. Based on a review of aerial photos, conversations with other City staff, and comments by previous users of the property, the City determined that the LDR portion of the property does have the following non- conforming right: Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal The property owner has filed an appeal of the City's Notice of Decision. The appeal will be going before the City's Hearing Examiner at a future date. Additionally, TMC 8.22 regulates noise within the City of Tukwila. Please note that there are no non - conforming rights regarding noise emissions. TMC 8.22.030 notes: "It is unlawful for any person to cause sound, or for any person in possession of property to permit sound originating from such property to intrude into the real property of another person, whenever such sound exceeds the maximum permissible sound levels established by this chapter." Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 The subject property is considered industrial with regards to the City's noise regulations. The subject property is also considered to be a sound source. Adjacent properties that may hear sounds originating from the subject property are considered to be receiving properties. Some of the adjacent receiving properties are residential and thus the permissible sound generated by your operation at these receiving properties is 60 dB(A). TMC 8.22.110 notes: "In addition to sounds that exceed the maximum permissible sound levels described in this chapter, it is unlawful for any person to cause, or for any person to allow to be emitted, or for any person in possession of property to allow to originate from the property, a sound that unreasonably disturbs or interferes with the peace, comfort, and repose of owners or possessors of real property without regard to sound level measurement. Such noises are determined to be public disturbance noises." The section goes on to list the following examples of public disturbance noises: 1. Frequent, repetitive or continuous sounding of any hom or siren attached to a motor vehicle expect as a warning of danger or as specifically permitted or required by law 2. Frequent, repetitive or continuous sounds in connection with the starting, operation, repair, rebuilding or testing of any motor vehicle, motorcycle, off highway vehicle, watercraft, powered model vehicle, or internal combustion engine so as to unreasonably disturb or interfere with the peace, comfort and repose of owners or possessors of real property. Wells Trucking must be able to meet the City's noise regulations. Failure to meet these noise requirements may subject drivers and other individuals operating on the site to criminal citations. You may also want to consider seeking a variance from the City of Tukwila with regards to the permissible noise levels. Please find enclosed the complete section of TMC 8.22 "Noise ". If you have any questions regarding the comments of the letter please feel free to call me at (206) 431 -3684 or send an email to bmiles@ci.tukwila.wa.us. Sincerely, don J. Miles Assistant Planner cc. Shelley Kerslake, City ttorney Jane Cantu, City C File (L04 -026) AARON HUNDTOFTE & BRIE CAMPBELL 3727 South 126 " Street Tukwila, WA 98168 206- 244 -5118 206 - 850 -5535 March 10, 2005 12677 East Marginal Way Tukwila, WA 98168 Attn: Christie Wells Dear Neighbor, Sincerely, Aaron Hundtofte & Brie Campbell Cc. B. Miles Assistant Planner Department of Community Development 6300 Southcenter Blvd., Ste. 100 Tukwila, WA 98188 R CEI ,,ED MAR 11 2005 We are the two blue houses located northwest of your yard and north of where the goats live. Earlier this week on Wednesday around 5.30 a.m. the noise was unreasonably loud. Engines operating prior to 7 a.m. in the morning are always going to be disruptive given the residential neighborhood. There are a number of separate households here on this property and I am writing to voice their concerns also. We made allowances for early morning noise over the weekend given you were in the process of moving in. However, much as you need to carry on your business, so too do the residents around you. March 7, 2005 Mr. Robie G. Russell Attorney at Law 76 South Main St Seattle, WA 98104 -2514 RE: Hearing Date for Notice of Appeal Dear Mr. Russell: The Department of Community Development received your Notice Appeal on February 10, 2005. The appeal hearing will take placed on Tuesday, April 19, 2005 at 1:30 PM. The hearing will take place at the City of Renton, City Council Chambers, 1055 S. Grady Way, Renton, WA 98055. Council chambers is on the seventh floor. If unable to be present at the hearing, please notify the Office of the Hearing Examiner at (425) 430 -6515. Sincerely, Brandon J. Miles Assistant Planner City of Tukwila Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director cc. Steve Lancaster, Director Shelley Kerslake, City Attorney Jack Pace, Deputy Director Carol Lumb, Senior P ner Office of the He g Examiner File (L04 -026) 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 BEFORE THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON In Re: Appeal of Design Review Approval for a Project Located at 17401 Southcenter Parkway I. PROCEDURAL BACKGROUND This action is on appeal to the City Council from the Board of Architectural Review ( "BAR ") pursuant to Tukwila Municipal Code ( "TMC ") 18.104.010(E) for Type 4 decisions. On November 18, 2004, the BAR, by way of an oral vote, accepted the findings and conclusions contained in the staff report and granted design approval to applicant Brad Decker for a strip retail building on the site of the existing Winners Restaurant. A public hearing before the BAR was first held on September 16, 2004. At that time, the BAR concluded that the proposal lacked sufficient information and continued the hearing to October 14, 2004. On October 14, the BAR again concluded that it had insufficient information to take a vote and continued the hearing until November 18, 2004. On November 18, the BAR concluded that it had sufficient information to take a vote and the proposal was approved. Staff then issued a Notice of CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 1 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/T/03/02/05 NO. L04 -036 CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 Decision on November 19, 2004, stating the BAR's findings and conclusions along with information pertaining to how the BAR's decision could be appealed. In accordance with the appeals procedure, two Notices of Appeal were filed within the appeal period, one by Jo -Ann Stores, Inc. and the other by CLPF - Tukwila, L.P. (owner of Park Place Shopping Center). The City then mailed a Notice of Appeal Hearing on January 19, 2005, and published and posted the Notice of Appeal Hearing on January 21, 2005. The attorney for Jo - Ann Stores then notified the City that although he was a party of record he had not received notice of the February 7, 2005, appeals hearing. In order to notify properly all parties of record, the City then postponed the appeal hearing until March 7, 2005. 11. STANDARD OF REVIEW An appeal to the Council from a BAR decision is limited to those issues raised by the appellant in its Notice of Appeal. TMC 18.116.030(A)(3). The appellants carry the burden of proof on appeal. Id. Type 4 decisions are quasi-judicial decisions made by the BAR or the Planning Commission, following an open record hearing. TMC 18.104.010(E). Type 4 decisions may be appealed to the City Council which will hold a closed record appeal hearing based on the record established by the BAR or Planning Commission. A. Closed Record Appeal. TMC 18.06.152 defines closed record appeal as: a quasi-judicial appeal to a hearing body designated by this chapter from a decision regarding a project permit application that was made after an open record hearing. Testimony and submission of relevant evidence and information shall not be permitted at a hearing on such an appeal. The CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 2 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/T /03/02/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FROM STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 hearing on such an appeal shall be limited to argument based on testimony, evidence and documents submitted at the open record hearing conducted on the project permit application. Thus, this appeal proceeding is not a new hearing, to take additional evidence, it is simply a review of a previous administrative action. See Berger Engineering Co. v. Hopkins, 54 Wn.2d 300, 308, 340 P.2d 777 (1959) (an appellate court "is not a fact - finding branch of the judicial system of this state." A tribunal with only appellate jurisdiction is not permitted to make its own findings). Unlike an "open record hearing" where oral testimony and submission of relevant evidence and documents is permissible to create an official record, TMC 18.06.594, on a "closed record appeal," testimony and submission of relevant evidence and information is not permitted, TMC 18.06.152. Instead, the review is limited to argument based on the testimony, evidence and documents submitted at the "open record hearing" conducted by the BAR. TMC 18.06.152. Additional testimony not part of the BAR's official record, is impermissible and a direct violation of the procedural requirements of the TMC. Failure to abide by the restraints of a closed record appeal may result in a review by the Superior Court of the Council's decision. If the Council determines, during its review, that it lacks adequate. information on which to make findings of fact necessary to its decision, the Council must remand the action back to the BAR with instructions to re -open the public hearing to take additional testimony. TMC 18.112.050(C). B. Review on Appeal. The Council must review the challenged factual findings of the BAR to determine if the Bar's factual findings were supported by substantial evidence. North/South KENYON DISEND, PLLC CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - THE MU !CIPALLAWFIRM 3 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.dod1703/02/05 (425) 392 -7090 FAX (425) 392 -7071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 Airpark Association v. Hagen, 87 Wn. App. 765, 942 P.2d 1068 (1997); State v. Pierce County, 65 Wn. App. 614, 829 P.2d 217 (1992). Substantial evidence exists when there is a sufficient quantity of evidence in the record to persuade a fair minded, rational person of the truth of the finding. Hilltop Terrace Homeowners Association v. Island Co., 126 Wn.2d 22, 891 P.2d 29 (1997); Freeburg v. City of Seattle, 71 Wn. App. 367, 859 P.2d 610 (1993) (substantial evidence for variance approval found when, after testimony heard, the hearing examiner found all the conditions required to grant a variance were present). Thus, as long as there is a sufficient quantity of evidence for a fair - minded person to conclude that BAR's factual findings were reasonable, the findings should be affirmed. The remaining procedural issue is what legal standard should be applied to the BAR's conclusion? The TMC states that the applicant must demonstrate "clear demonstration of compliance with all of the guidelines of this chapter." TMC 18.60.030(B). Unfortunately, there is no definition in the TMC as to what satisfies a "clear demonstration of compliance." However, the TMC does provide that, "Except where specifically defined in this chapter, all words used in this title shall carry their customary meaning." TMC 18.06.005. Thus, the Council is left with using the customary meaning of the words. TMC 18.06.005. Cambridge Dictionary defines "clear" as "easy to understand, hear, read or see "; in other words, it is plain or evident to the reviewer. Washington law sets forth several standards of review that may shed some light on what is meant by "clear demonstration of compliance." The minimum standard routinely applied to such administrative inquiries is a preponderance of the evidence standard. A preponderance means that the evidence KENYON DISEND, PLLC CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - THE MUNICIPAL LAW FIRM 4 11 FRONT STREET SOUTH 1SSAQUAH, WASHINGTON 98027 - 3820 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/T /03/02/05 (425) 392 -7090 FAX (425) 392 -7071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 establishes that the proposition at issue is more probably true than not true. In re Welfare of Sego, 82 Wn.2d 736, 739 n.2, 513 P.2d 831 (1973). The TMC certainly requires more than that minimum quantum of proof. One of the more stringent burdens of proof is the clear, cogent and convincing standard. To sustain an order premised upon clear, cogent and convincing evidence, the ultimate fact in issue must be shown by evidence to be "highly probable." In re Estate of Pflegher, 35 Wn. App. 844, 847, 670 P.2d 677 (1983). Given this range of legal standards of review, it appears that the TMC contemplates something less than "clear, cogent and convincing," yet something more than a preponderance. Thus, the City contends that the standard of review for the BAR's legal conclusion is more than "more probable than not" and less than "highly probable" and requires that the Council apply a standard which requires compliance to be evident or easily understood from the evidence. Thus, the ultimate question for the Council to consider in this appeal is whether the appellants have met their burden to demonstrate that there is not substantial evidence in the record to support the conclusion that the applicant met the clear demonstration of compliance standard III. ISSUES ON APPEAL On appeal, the appellants contend that the BAR: 1) applied the wrong standard of review to the proposal; 2) improperly shifted the burden of proof; 3) failed to issue written findings of fact and conclusions of law separate from the Notice of Decision; and 4) improperly found that the applicant met the City's design criteria. As the appealing party, the burden of proof is on the appellants to show that the BAR's ruling is in error. CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 5 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/7/03/02/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 A. Standard of Review. The appellants challenge the standard of review used by the BAR in making its decision. The standard of review that applies to the BAR's decision is that the applicant must show a "clear demonstration of compliance" with the guidelines of TMC 18.60. TMC 18.60.030(B). The appellants contend that the BAR lowered its standard by allowing the applicant to barely "eek" past the City's approval criteria. Exhibit 1, pg. 3 and Exhibit 2, pg 4. On appeal, the appellants must demonstrate that there is not substantial evidence in the record to conclude that the applicant showed a "clear demonstration of compliance." B. Burden of Proof. Before the BAR, the burden of proof is born by the applicant to show that the proposed development plans satisfy all of the criteria of TMC 18.60. TMC 18.60.050(A). However, the BAR may modify a literal interpretation of the criteria if, in their judgment, such modifications better implement the Comprehensive Plan's goals and policies. Id. Both appellants contend that this burden of proof was not met. Exhibit 1, pg. 3 -4 and Exhibit 2, pg. 4. Appellant Jo - Ann Stores asserts that this burden was not met by the applicant refusing to incorporate suggested changes, and refusing to redesign the proposal consistent with the City's independent design consultant's recommendations. Exhibit 1, pg. 3 -4. Appellant CLPF - Tukwila, L.P. gives no reason why the burden of proof was not met other than stating so. Exhibit 2, pg. 4. In the staff report, staff found that the applicant had modified his proposal and; therefore, recommended approval of the proposal. Exhibit 3, pg. 10. By adopting the staff report, the BAR asserted that the KENYON DISEND, PLLC CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - THE MUNICIPAL LAW FIRM 6 11 FRONT STREET SOUTH IssAQuaH, WASHINGTON 98027 -3820 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/r /03/02/05 (425) 392 -7090 FAX (425) 392 -7071 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 applicant had met his burden of proof. On appeal, the appellants must show that the applicant failed to meet his initial burden of proof. C. Failure to Issue a Written Decision. Following a hearing, the BAR must render a written decision including its finding of facts and conclusions. TMC 18.108.040(C). Pursuant to TMC 18.112.050(B), "Any hearing body may adopt as its own, findings and conclusions recommended by the Department." The Department must then promptly issue a Notice of Decision. Id. In this case, the BAR issued an oral ruling at the hearing on November 18, 2004. Exhibit 4, pg. 9. Staff then issued a written Notice of Decision that contained the BAR's ruling. Exhibit 1, attachment. Appellants contend that the BAR failed to render a written decision containing the BAR's findings of fact and conclusions. At the November 18, 2004 hearing, the BAR orally adopted staff's findings of fact and conclusions. BAR Commissioner Malina entertained a motion on the application. Exhibit 4, pg. 9. Commissioner Meryhew made the motion stating: I'll make a motion that item L04 -036, the um, retail building, demolition of the Winners Restaurant and development of the new building there at 17401 Park, Southcenter Parkway, be uh be approved with staff's findings and conclusions and uh, the recommendation caught [sic] . out in the staff report. Id. Commissioner Ekberg seconded this motion. Id. A vote was taken and only Commissioner Marvin opposed the approval of the application. Id. By approving staff's findings and conclusions the BAR utilized TMC 18.112.050(B), which allows any hearing body to adopt staff's recommendations. Therefore, the appellants must demonstrate that the BAR's actions failed to comply with TMC 18.108.040(C) for rendering a written decision. CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 7 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/I703 /02/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 Sew D. Design Review Criteria. Whether or not an applicant meets the design review criteria of TMC 18.60 is left to the discretion of the BAR. TMC 18.60.030(B). However, the BAR may modify a literal interpretation of the criteria if, in their judgment, such modifications better implement the Comprehensive Plan's goals and policies. TMC 18.60.050(A). Appellant Jo -Ann Stores contends that the proposal: 1) does not provide adequate pedestrian movement; 2) fails to moderate the visual impact of the parking and service areas; 3) fails to provide adequate landscaping transitions; 4) fails to ensure the proposal is consistent with established neighborhood character; 5) fails to ensure compatibility of vehicular and pedestrian circulation patterns; 6) fails to provide adequate screening of service yards and loading facilities; 7) fails to provide adequate screening of lighting; 8) fails to ensure appropriate scale and harmony with existing neighboring development; and 9) fails to ensure an appropriate relationship to adjacent site by blocking views. Appellant CLPF - Tukwila, L.P. contends that the proposal: 1) fails to consider alternative site layouts; 2) fails to require a harmonious relationship with adjacent businesses; and 3) blocks the visibility of Jo -Ann's from the Southcenter Parkway. The appellants must demonstrate that there was not substantial evidence for the BAR to conclude that the applicant had met the design review criteria of TMC 18.60 pertaining to these issues. IV. COUNCIL ACTION Following the appeal hearing, the Council must render a written decision, including findings of fact and conclusions, and staff must promptly issue a Revised Notice of Decision pursuant to TMC 18.108.040(F). The Council's decision is final but may be appealed to the Superior Court pursuant to RCW 36.70C. TMC 18.108.040(G). CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 8 C: \WINDOWS\TEMP\PLD00333 - Brief- Decker BAR Appeai.doc/1/03/02/05 KENYON DISEND, PLLC THE MUNICIPAL LAwFJRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 FAX (425) 392 -7071 17 18 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 19 20 There are several courses of action Council may take in this appeal. After reviewing the record and considering the argument of Counsel, the Council may accept, modify or reject the Board's decision or any finding or conclusion therein, or may remand to the BAR for further hearing on any issue raised in the appeal. DATED this .2 day of March, 2005. KENYON DISEND, PLLC B CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 9 C: \WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/f /03/02/05 Shelley / ' ers WSBA o.21820 Attorneys for City of Tukwila KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 1 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 - 3820 (425) 392 -7090 FAX (425) 392 -7071 City of Tukwila Department of Community Development Steve Lancaster, Director Memo TO: Shelley Kerslake, City Attorney FROM Brandon Miles, Assistant Planner RE: Becker, Interview with Troy Wallin DATE: February 24, 2005 At 1:30 PM on February 24, 2005, Carol Lumb and I met with Troy Wallin at City Hall. Mr. Wallin lives at 12607 East Marginal Way South, north of the Becker Trucking Site. Mr. Wallin has lived at the location for approximately six years. Mr. Wallin noted that the primary use of the parking area to the west, which is zoned LDR, was to park semi - trucks and semi -truck trailers. He noted that this occurred nearly 50 percent of the time. He also noted that often times the trucking companies that occupied the site would wash and do some mechanical work on the trucks parked in the gravel area. (Note: I would consider washing and maintenance of the vehicles to be incidental to the parking of semi trucks and semi - trailers. Mr. Wallin is willing to testify at the upcoming hearing. Troy Wallin 12607 East Marginal Way S Tukwila, WA 98188 (206) 248-0521 Steven M Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206- 431 -3670 • Fax: 206 - 431 -3665 9- Memo TO: Shelley Kerslake, City Attorney FROM Brandon Miles, Assistant Planner RE: Becker, Interview with Bob Edgmon DATE: February 24, 2005 At 9am on February 24, 2005, Carol Lumb and I met with Bob Edgmon of Edgmon and Son Trucking (Edgmon). Edgmon operated at the Becker facility on East Marginal Way from January of 2003 to October of 2004. Edgmon is a trucking company and only utilizes semi - trucks. They do not operate any vans or delivery trucks. According to Mr. Edgmon, he first looked at the Becker site in December of 2002. He noted that at the time Peter Becker was operating a flat bed trucking operation at the site. When Mr. Edgmon walked the site he noticed that there was a truck trailer parked on the gravel area along the western property line. This is the area of the property that is zoned LDR. Mr. Edgmon had numerous conversations with Puget Sound Reality (PSR) who was the realtor for the Becker Trust. PSR noted to Mr. Edgmon that there were not restrictions on the property, that the entire property was commercial and vested to have a truck terminal. According to Mr. Edgmon, PSR was aware of the non - conforming issues related to the LDR portion of the property. Mr. Edgmon was informed by PSR that he needed to keep vehicles and equipment parked on the western gravel area or the non - conforming rights would be extinguished. Mr. Edgmon used the westem gravel area from January of 2003 to October of 2004 to park semi - trucks and semi - trailers. Mr. Edgmon also mentioned that when Becker Trucking operated on the site that they also stored trucks on the property. Prior to purchasing the site Mr. Edgmon asked for a good faith letter from Becker regarding the soil contamination on the site. Mr. Edgmon also asked that the zoning issues be resolved prior to him purchasing the site. Mr. Edgmon later learned that there was contamination still present on the site. He noted that his bank had concerns with contamination and would not provide financing (It was just not the zoning issues that made him back out of the deal). • Mr. Edgmon met with Edwin Becker on numerous occasions. Mr. Becker would often give Mr. Edgmon advice on how to deal with the City regarding the non - conforming status of his property. Mr. Becker told Mr. Edgmon that the City does this every so many years and that to just tell them you are going to sue and get the lawyers involved and they will back off. Mr. Edgmon would be willing to testify at the upcoming hearing. Bob Edgmon Edgmon and Son Trucking 2550 S. 102n St. Tukwila, WA 98168 (206) 658 -1057 February 15, 2005 City of Tukwila Mr. Matthew Plewe PGP Valuation Inc 1325 4 Ave South. Suite 500 Seattle, WA 98101 -2525 RE: Property at 12677 East Marginal Way S Dear Mr. Plewe: Department of Community Development Steve Lancaster, Director Please find enclosed the Notice of Decision for the property at 12677 East Marginal Way South in Tukwila. The Notice of Decision was issued January 28, 2005. Please note that the decision has been appealed to the City's Hearing Examiner and is currently pending. I have also included the zoning chapters for the Low Density Residential Zone and the CommerciallLight Industrial Zone. If you have any questions, please call (206) 431 - 3684 or send an email to bmiles@ci.tukwila.wa.us. Sincerely, lhr tfdon J. Mile Assistant Planner cc. Shelley Kerslake, /ity Attorney File (L04 -026) Steven M Mullet, Mayor 6300 Southcenter Boulevard, Suite #10 • Tukwila, Washington 98188 • Phone: 206-431 -3670 • Fax: 206 -431 -3665 Brandon Miles - Truck Terminal at 12677 E Marginal Way S Page 1 From: Matthew Plewe <mplewe @pgpinc.com> To: "'tukplan @ci.tukwila.wa.us "' <tukplan @ci.tukwila.wa.us> Date: 2/14/05 3:09PM Subject: Truck Terminal at 12677 E Marginal Way S I am appraising the property at 12677 E Marginal Way S, APN #s: 734560 -0766, 0685, with the existing improvements being a vacant truck terminal. The property is pending a sale, we have been hired by Key Bank, financing the buyer, to do the appraisal for the market value of the property. In the course of my due diligence, I called your department and was directed to request information on the status and zoning of this property in writing because there was pending litigation related to the property. I would like to know the status of this property as it relates to the zoning and use of the property. This information is a necessary piece of the appraisal and I graciously request a timely reply. Thank you for your time. My contact information is included below if you need to reach me for any reason. Regards, Matthew Plewe PGP VALUATION INC 1325 Fourth Avenue . Suite 500 Seattle WA 98101.2525 206.343.7477 (voice) 206.682.7207 (fax) 206.200.4300 (cell) mplewe @pgpinc.com Any part of this file must be reviewed by City Attorney prior to release VIA LEGAL MESSENGER Steve Lancaster, Director Department of Community Development City of Tukwila 6300 Southcenter Blvd., Ste. 100 Tukwila, WA 98188 -8548 Dear Mr. Lancaster: Errors of Fact ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 Facsimile (206) 621 -2104 (206) 621 -2102 February 9, 2005 Re: NOTICE OF APPEAL OF CODE INTERPRETATION Truck Terminal -- 12677 East Marginal Way South, Tukwila, WA The "Director's Findings" are erroneous and/or irrelevant for the reasons that follow: RECEIVED FEB 10 2005' COMMUNITY DEVELOPMENT Licensed in Washington and Idaho Our Reference No. 9810/0011 Pursuant to TMC 18.108.020 and TMC Chapter 18.116, the Becker Family Revocable Living Trust ( "Trust "), owner of the truck terminal located at 12677 East Marginal Way South, Tukwila, Washington ( "Property"), by and through undersigned counsel, hereby appeals the department's Code Determination and Notice of Decision dated January 28, 2005 and received here January 31, 2005. This office is authorized to receive all notices in this matter on behalf of the Trust. No. 4. Becker Trucking continued to pay rent on the Property until October 2002, and continued to use the Property through January 2003. No. 5. The aerial photos show only particular moments in the dynamic use of the property as a trucking terminal. No. 6. The aerial photos show only particular moments in the dynamic use of the property as a trucking terminal. The photos are misleading and irrelevant to the extent that they appear to show that the Property was not being used a truck terminal. \9810\0001 \tukwi 1 a. ltr February 9, 2005 February 9, 2005 Page 2 No. 7. The change in water use reflects the fact that administrative operations were moved to the South 143rd Street site, but do not establish that the Property was not being used a truck terminal. Nos. 8 and 9. The Tukwila zoning code speaks for itself No. 10. Becker Trucking was informed that it did not need a separate license for its operations on the Property after moving its administrative operations to the South 143rd Street site. No.11. The letter speaks for itself. The suggestion that Mr. Rolan Becker did not respond is not relevant or accurate. In fact, Mr. Becker and/or his attorney called the City in response to the letter. No. 14. The suggestion that a business license was denied is misleading and irrelevant. Mr. Rolan Becker was told he did not need a separate business license. No appealable decision was issued. There was nothing for Becker Trucking to appeal because the Property was occupied by tenant Edgmon & Son Trucking ( "Edgmon "). No. 15. The Trust denies that the use of the Property was generating "excessive noise." The Trust has no knowledge of the investigations by City staff. The trucking operation was "apparent" because the Property was in fact used as a trucking terminal and has been for thirty years. Furthermore, the status of the tenant's business license is irrelevant. Any lack of a business license was due to confusion, caused in part by the City, over whether a license was required. The lack of any business license at any point in time does not establish that the Property was not being used a truck terminal. No. 16. The efforts of Edgmon to obtain a business license are irrelevant. The lack of any business license at any point in time does not establish that the Property was not being used a truck terminal. No. 17. The alleged letter speaks for itself The Trust was not the applicant, and the Trust has no knowledge of the irrelevant content of this letter. No. 18. The letter speaks for itself The Trust denies that the content of the letter is either relevant or accurate. \9810 \0001 \tukwila.ltr February 9, 2005 Nos . 12 and 13. See no. 11 (above). No. 19. The letter speaks for itself. The suggestion that the letter provided no February 9, 2005 Page 3 "documentation" is misleading and irrelevant because the body of the letter provided the necessary information. No. 20. The documents speak for themselves. No. 21. The documents speak for themselves. The suggestion that the letter provided no "documentation" is misleading and irrelevant because the City was in fact provided with declarations and the copies of the leases. No. 22. The City's findings and decision on the Edgmon application are incorrect and not binding upon the Trust. The denial of a business license to Edgmon is irrelevant and not binding upon the Trust. Edgmon's alleged failure to appeal is irrelevant and not binding upon the Trust. The lack of any business license at any point in time does not establish that the Property was not being used a truck terminal. On information and belief, Edgmon originally applied for a business license in February of 2003 but was told that it did not need such a license. No. 23. Edgmon vacated the Property on or about October 1, 2004. The exact date on which Edgmon vacated the premises is unclear and irrelevant. No. 24. The Trust agrees that it made a timely request for a code interpretation. The City had previously agreed in writing that the code interpretation procedure would be used to resolve the issues in this matter. No. 25. The letter speaks for itself There was no legal basis for the City imposing a 14 -day limit on the Trust. No. 26. The documents speak for themselves. No. 26(c) is incorrect. The City was provided with the entire lease. \9810\0001 \tukwi la. February 9, 2005 No. 27 and 28. The documents speak for themselves. No. 29. The suggestion that the City received a "complete" copy on December 23rd is misleading in that the City was previously provided with those portions of the lease that were relevant to the issue of whether the Property was being used a truck terminal. No.30. The declaration speaks for itself. No. 31. The declaration speaks for itself. February 9, 2005 Page 4 Errors of Law * A. The suggestion that the LDR portion of the Property "was not used as a truck terminal and was limited only to the parking of semi - trucks and semi -truck trailers" is neither factually accurate nor legally relevant. The City's attempt to distinguish between the parking of trucks and truck terminal operations has no basis under the TMC or the general law of zoning and non - conforming uses. The LDR portion of the Property is part of the larger truck terminal and is a valid nonconforming use as a truck terminal. B. The City's complaints about business licenses are irrelevant. Much of the confusion about the need for business licenses was caused by the City itself. The City cannot prove any actual harm that may have befallen the City or anyone else do to any confusion over business licenses. The lack of any business license at any point in time does not establish that the Property was not actually being used a truck terminal. The City concedes, as it must, that the Property was being used as a truck terminal. C. The City's interpretation that (i) "[t]he non - conforming rights" are limited to "[p]arking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal," and (u) that "merely parking" trucks will not preserve non - conforming rights are legally erroneous and superfluous. The LDR portion of the Property is part of the larger truck terminal and is a valid nonconforming use as a truck terminal. D. The City's attempt to restrict the use of the Property is beyond the scope of the requested interpretation, which was directed at the question of whether the non - conforming use was abandoned or terminated. Having conceded that the non - conforming use was not abandoned or terminated the City has no authority under law to place restrictions on the Property. A copy of the Department's Notice of Decision dated January 28, 2005 and received January 31, 2004 is attached hereto. RGR/mj cc: Edwin J. Becker William John Crittenden attachment: \9810\0001 \tukwila.ltr February 9.2005 obie G. Russell MEMO TO: FROM: RE: DATE: Nora Alice Kathryn Carol Minnie Brandon January 31, 2005 pi\ Becker Notice of Decision On Friday the City issued a Notice of Decision for the Becker site located at 12677 East Marginal Way with regards to the non - conforming status of the property. The property is zoned both commercial/light industrial and Low Density Residential. Becker Trucking had operated at the site for a considerable amount of time. However, in 2002 they moved their business to a new location in Tukwila. Subsequent trucking operations at the site failed to obtain a City of Tukwila business license. Under City code, if a non - conforming use ceases operations for more than six months any subsequent uses on the property must comply with the applicable zoning regulations on the property. The only portion of the Becker property that contains non - conforming rights is the portion zoned LDR. The LDR portion of the property has the following non - conforming right: Parking of semi - trucks and semi -truck trailers in association with the use of the building as a truck terminal Non - Conforming rights are very specific. For example using the LDR portion of the property to park UPS trucks would not be permitted nor would using this portion of the property to park private automobiles. If someone proposes a change in use to the LDR portion of the property it must be permitted in the LDR zone. Additionally, the non - conforming right runs with the property. So if the property is sold the non- conforming use remains on the property. Just a little FYI if you are working on a non - conforming issue regarding any property, we need to be working with the property owner. For example if someone submits a business license on a property that contains non - conforming rights, however the applicant is not the property owner, the City needs to be sending any letters regarding non- conforming rights to the property owner. VIA FACSIMILE (206) 433 -1833 9810 \001 I \tukw ila.ltr January 20, 2005 Jack Pace, Deputy Director Department of Community Development City of Tukwila 6300 Southcenter Boulevard, Ste. 100 Tukwila, WA 98188 RGR/mj Attachment cc: Shelley M. Kerslake, City Attorney ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 Facsimile (206) 621 -2104 (206) 621 -2102 Licensed in Washington and Idaho Our Reference No. 9810/0011 January 20, 2005 Robie G. Russell Please advise as to what further assistance we may provide. RECEIVED 13M4 21 2005' COMMUNITY DEVELOPMENT Re: Truck Terminal -- 12677 East Marginal Way South, Tukwila, WA Dear Mr. Pace: Please find attached the Declaration of Patrick Becker. Mr. Becker operates a transportation company denoted as Becker Transfer Company. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 IN RE: 12677 EAST MARGINAL WAY SOUTH, TUKWILA, WASHINGTON DECLARATION OF PATRICK BECKER - 1 BEFORE THE CITY OF TUKWILA DEPARTMENT OF COMMUNITY DEVELOPMENT NO. DECLARATION OF PATRICK BECKER COMES NOW Patrick Becker and declares the following to be true under penalty of perjury pursuant to the laws of the State of Washington: 1. I own and operate a trucking company known as "Becker Transfer Company." 2. We used the truck terminal located at 12677 E. Marginal Way South, Tukwila, Washington from October, 2002, through January, 2003, when it was taken over by Edgmon and Son Trucking. During that time, it was also used by other trucking companies. 3. I paid rent for the use of the truck terminal to Edwin J. Becker c% Clayton Betz. Copies of my checking records evidencing rental payments are attached hereto as Exhibit "A." DATED this JS day of January, 2005, Seattle Washington. atrick Becker ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621 -2102 CHECKING - SEAFIRST EDWIN J BECKER EDWIN J BECKER C/O CLAYTON BETZ 32820 20th Ave So. #53 Federal Way, Wa 98003 November Rent CHECKING - SEAFIRST November Rent tsiu A 11!14 / ?^^^ * *450.00 Four Hundred Fifty and 00/ 100******************************************:***************** * * * * * * * * * *s** * *** * * * * * * * * * * * * ** EDWIN J BECKER 11/14/ November Rent 450.00 November Rent 450.00 EDWIN J BECKER 11/14/2002 November Rent 450.00 450.00 EDWIN J BECKER Four Hundred Fifty and 00/ 100 * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Rent EDWIN J BECKER C/O CLAYTON BETZ 32820 20th Ave So. #53 Federal Way, Wa 98003 EDWIN J BECKER CHECKING - SEAFIRST Rent EDWIN J BECKER December Rent December Rent I 12/3/2002 12/3/2002 12/3/2002 * *450.00 450.00 450.00 450.00 CHECKING - SEAFIRST Rent 450.00 EDWIN J BECKER Four Hundred Fifty and 00,' 100* ` * * * * ** * * * * * * * * * * * * * * *r * * *' ****** r* s** s**"****** s********** * * * ** * * * ** * * * * * * *** *sr * * *r:* * ** EDWIN J BECKER C/O CLAYTON BETZ 32820 20th Ave So. #53 Federal Way, Wa 98003 January 2003 EDWIN J BECKER 1/3/2003 CHECKING- SEAFIRST January 2003 EDWIN .1 BECKER 1/3%2003 CHECKING- SEAFTRST January 2003 I /3/2003 * *450.00 450.00 450.00 450.00 450.00 EDWIN J BECKER EDWIN J BECKER C/O CLAYTON BETZ 32820 20th Ave So. #53 Federai Way. Wa 98003 Warehouse Rent December EDWIN J BECKER CHECKING - SEAFIRST CHECKING - SEAFIRST Warehouse Rent December l 3 i t 1/14/2003 EDWIN J BECKER 1 /14i2u,,.: 1/14/2003 "1.500.00 One Thousand Five Hundred and 00/ 100****************************************************** * * * * * * ** * * * * * * * * * * * ** * *** *a 1,500.00 Warehouse Rent December 1.500.00 1,500.00 1,500.00 Licensed in Washington and Idaho Our Reference No. 9810/0011 VIA FACSIMILE (206) 433 -1833 Jack Pace, Deputy Director Department of Community Development City of Tukwila 6300 Southcenter Boulevard, Ste. 100 Tukwila, WA 98188 RGR/mj Attachment cc: Shelley M. Kerslake, City Attorney 9810\0011 ltukw ila.ltr December 22, 2004 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 Facsimile (206) 621 -2104 (206) 621 -2102 December 22, 2004 Re: Truck Terminal -- 12677 East Marginal Way South, Tukwila, WA Dear Mr. Pace: Please find attached the Declaration of Rolan Becker. As you may know, Mr. Becker is the president of Becker Trucking, Inc. Please advise as to what further assistance we may provide. IN RE: DECLARATION OF ROLAN BECKER - 1 BEFORE THE CITY OF TUKWILA DEPARTMENT OF COMMUNITY DEVELOPMENT 12677 EAST MARGINAL WAY SOUTH, TUKWILA, WASHINGTON NO. DECLARATION OF ROLAN BECKER COMES NOW Rolan Becker and declares the following to be true under penalty of perjury pursuant to the laws of the State of Washington: 1. I am the president of Becker Trucking, Inc. 2. Becker Trucking, Inc. leased a truck terminal located at 12677 E. Marginal Way South, Tukwila, Washington ( "Marginal Way Terminal") from the owner of the property, the Becker Family Revocable Living Trust ( "Trust "), pursuant to a Lease dated April 1, 1997. 3. Because we were unable to come to favorable terms for the renewal of the Lease which expired March 31, 2002, we began looking for an alternate location, finally settling on a truck terminal located at 6350 South 143rd Street, Tukwila, Washington. ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 - 2514 (206) 621-2104 4. Even though we began transferring some of our operations to the new terminal after the Lease expired, we continued to operate out of the Marginal Way Terminal on a month to month basis through January, 2003, when it was leased to Edgmon and Son Trucking. 5. We paid rent on the Marginal Way Terminal through October, 2002. However, because the Trust was attempting to sell the Terminal, it had not sought to lease it to another tenant. As a result, we were allowed to continue to use the Marginal Way Terminal for our airport related freight through the end of January, 2003. After the Marginal Way Terminal was leased, we transferred our Marginal Way operations to a second terminal we secured at the airport. 6. The nature of our operations at the Marginal Way Terminal during the transition period involved all aspects of freight terminal operations including dispatching, loading and unloading of freight, use of the dock and warehouse for freight storage and transfer, parking and storage of trailers and rolling stock, and other uses associated with truck terminal operations. DATED this I/ day of December, 2004, at Seattle Washington, DECLARATION OF ROLAN BECKER - 2 olan Becker, President Becker Trucking, Inc. ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 (206) 621-2104 VIA FACSIMILE (206) 433 -1833 Dear Mr. Pace: Jack Pace, Deputy Director Department of Community Development City of Tukwila 6300 Southcenter Boulevard, Ste. 100 Tukwila, WA 98188 RGR/mj Attachment cc: Shelley M. Kerslake, City Attorney 9810\001 1 \tukw ila.ltr December 16, 2004 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 Facsimile (206) 621 -2104 (206) 621 -2102 Licensed in Washington and Idaho Our Reference No. 9810/0011 December 16, 2004 Re: Truck Terminal -- 12677 East Marginal Way South. Tukwila, WA in regard to your letter of December 2, 2004, which was received here on December 6, 2004, we did not believe it necessary to provide the full lease document since it was included only to show that there was a lease in effect. However, since you have requested the whole document, we are happy to provide it. Please advise as to what further assistance we may provide. RECEIVED DEC 171004 1 COMMUNITY DEVELOPMENT LEASE AGREEMENT THIS LEASE is made effective the 1st day of April, 1997, by and between EDWIN J. BECKER (hereinafter referred to as "Landlord "), and BECKER TRUCKING, INC. (hereinafter referred to as 'Tenant "). WITNESSETH: 1. DESCRIPTION OF PREMISES. Landlord hereby leases to Tenant and Tenant takes from Landlord, for the term and according to the covenants and conditions contained herein, all that certain land together with the improvements thereon at 12677 East Marginal Way South, Seattle, Washington, 98168 as more particularly described in Exhibit "A" (the "Premises "). 2. PRIMARY TERM. The primary term of this Lease shall be five (5) years, commencing on April 1, 1997 and terminating March 31, 2002; provided, however, that Tenant may terminate this Lease at any time during the term hereof, as the same may be extended, upon 120 days' written notice to Landlord, and this Lease shall terminate on the 120th day following Tenant's notice as if such date were originally set forth as the termination date herein. 3. OPTION TO RENEW. Provided that Tenant is not in default hereunder beyond any applicable cure period, either at the time of exercising an option to renew or on the commencement date of the renewal term, Tenant shall have the option to renew this Lease for two (2) additional terms of five (5) years each ( "Renewal Terms ") on the same terms and conditions as are provided for in this Lease, except for term, which shall be extended for the period of the renewal term, and for monthly rent, which shall be determined by using the method set forth in paragraph 4 below. In no event shall the monthly rent during any Renewal Term be less than that last in effect under the Lease prior to the renewal. Each Renewal Term shall begin upon the expiration of the primary term, or prior Renewal Term, as the case may be. The Renewal Terms shall not be severable or separately assignable from this Lease. Tenant shall exercise a renewal option by delivering to Landlord written notice of its election to renew no later than one hundred twenty (120) days prior to the expiration of the primary term, or prior Renewal Term, as the case may be. LEASE AGREEMENT - 1 4. RENT. a. MINIMUM MONTHLY RENT. Tenant covenants and agrees to pay to Landlord the minimum monthly rent set forth herein in advance, on or before the first day of each calendar month during the term hereof, without offset or deduction of any kind. The minimum monthly rent payable during the primary term of this Lease shall be the sum of FOUR THOUSAND DOLLARS ($4,000.00). b. COST OF LIVING. In the event Tenant exercises its option to renew its first Renewal Term as provided for herein, then commencing on the first day of the first Renewal Term, the minimum monthly rent specified in paragraph 4.a. above shall be increased for the first Renewal Term to reflect any increases in the Cost of Living as follows: (i) LEASE AGREEMENT - 2 As used herein, the term "Price Index" means the "Revised Consumer Price Index for Urban Wage Earners and Clerical Workers, All Items" (or, if that Index is no longer published or is revised, a successor or substitute index appropriately ad- justed), published by the Bureau of Labor Statistics of the United States Department of Labor, U.S. City Average. (ii) As used herein, the term "Base Index" means the Price Index for the month immediately preceding the commencement of the sixty -three (63) month period prior to the period for which rent is being determined (or, if there be no Index for such month, then for the month having the next preceding published Price Index). (iii) In the event that the Price Index for the sixtieth month succeeding the Base Index month referred to in 4.b.(ii) above (or, if there be none, then for the month having the next succeeding published Price Index) shall be greater than the Base Index, then the monthly installments of rent payable during such renewal period shall each be increased to an amount which is equal to (x) the amount of each monthly installment of rent payable as of the adjustment date multiplied by (y) a fraction, the numerator of which is the Price Index for the month referred to above in this Subsection 4.b.(iii) and the denominator of which is the Base Index. In no event, however, shall the minimum monthly rent for any period be less than the minimum monthly rent payable for the month immediately preceding the adjustment. c. MUTUAL AGREEMENT; ARBITRATION. In the event Tenant exercises its option to renew for the second Renewal Term, as provided for herein, then commencing on the first day of the second Renewal Term, the minimum monthly rent specified in paragraph 4.a (as modified in paragraph 4.b if applicable) shall be increased for the second Renewal Term as follows: (i) LEASE AGREEMENT - 3 Minimum rent during the second Renewal Term shall be eighty percent (80 %) of the fair market rental value of the Premises as of the commencement of the second Renewal Term, as determined by mutual agreement of the parties; in no event, however, shall minimum rent during the second Renewal Term be less than that last in effect during the primary:term of the Lease (or prior Renewal Term, as the case may be). (ii) In the event that the parties are unable to agree upon the minimum rent for the second Renewal Term within thirty (30) days after Tenant's notice of exercise of its right to extend the Lease term, then rent during the second Renewal Term shall be determined by arbitration, as follows: (iii) Arbitration shall be before one (1) disinterested arbitrator if one can be agreed upon between the parties within fifteen (15) days after the expiration of the 30 -day period set forth above. If the parties are unable to agree upon a disinterested arbitrator within such fifteen (15) days, then the arbitrator shall be appointed by the then presiding judge of the King County Superior Court upon the motion of either party. For purposes hereof, a "disinterested arbitrator" shall be a commercial realtor doing business in King County and having at least five (5) years' experience in matters involving the leasing of commercial real estate. The arbitrator shall determine the minimum rent in accordance with the fair market rental value of the Premises for the second Renewal Term, but in no event less than the minimum rent last in effect during the primary term of the Lease (or prior Renewal Term, as the case may be). It is 80% of this fair market rental value that shall be the new minimum rent during this second Renewal Term. The arbitrator shall conduct the proceedings in accordance with the laws of the State of Washington and the Uniform Arbitration.Act. All arbitration proceedings hereunder shall be conducted in King County, Washington. The decision of the arbitrator shall be rendered within thirty (30) days after his or her appointment, and such decision shall be in writing and in duplicate, one counterpart thereof to be delivered to each of the parties hereto. The decision of the arbitrator shall be binding, final, and conclusive on the parties. Fees of the arbitrator and expenses incident to arbitration shall be borne equally between the parties. Fees of the respective counsel of the parties, if any, and expert witness fees or fees of other witnesses engaged by the parties shall be borne by the respective party engaging counsel or calling such witness. (iv) In the event the arbitrator's decision shall not have been rendered prior to the commencement date of the second Renewal Term, Tenant shall continue to pay timely the minimum rent last in effect under the Lease until the arbitrator's decision shall have been rendered, and within fifteen (15) days following the arbitrator's decision, Tenant shall pay to Landlord the accrued difference, if any, between the minimum rent amounts so paid by Tenant during the second Renewal Term and the fair market rental rate applicable to the second Renewal Term, as determined by the arbitrator. d. RENT ACCRUAL. Although the day upon which minimum monthly rent becomes payable is other than the first date of any calendar month, the minimum monthly rent for each month shall accrue from the first day of each calendar month. 5. USE OF PREMISES. Tenant may occupy and use the Premises for the purpose of operating a trucking business, for incidental purposes related thereto, or for any lawful complementary activities, and for no other use without the prior written consent of Landlord, which consent shall not unreasonably be withheld or delayed. Tenant shall not use the Premises in any manner that would violate any applicable law, rule, ordinance, or any regulation of any governmental body. 6. CONDITION OF PREMISES. Landlord makes no warranties or representations of any kind concerning the leased Premises. Tenant accepts all real and personal property, if any, leased herein "AS IS," in its present condition without any warranty of Landlord whatsoever, express or implied, in fact or by law. 7. TAXES, ASSESSMENTS, UTILITIES AND INSURANCE. It is expressly understood and agreed that this is a triple net lease, and Tenant shall pay or be liable for the following amounts as additional rent: a. TAXES. Tenant, at Tenant's sole cost, shall timely pay, directly to the taxing authority, all property taxes, assessments, and governmental charges, on both real and personal property, during the entire term hereof. This shall include any taxes accrued during the term hereof, even though they are not billed until after the expiration of this Lease. Upon Landlord's request, Tenant shall provide Landlord with reasonable evidence of Tenant's payment of such taxes. For purposes of this section, "property taxes" shall mean real property taxes, personal property taxes, occupancy taxes, assessments upon the LEASE AGREEMENT - 4 LEASE AGREEMENT - 5 For purposes of this section, "property taxes" shall mean real property taxes, personal property taxes, occupancy taxes, assessments upon the property and the improvements which may be imposed by any governmental authority or agency, and any tax on or measured by the rentals imposed wholly or partly in lieu thereof, but shall not include any net income, estate or inheritance taxes of the Landlord. If, at any time during the term of this Lease, the method of taxation in effect on the date of this Lease shall be so changed that the whole or any part of the ad valorem real property taxes now imposed, assessed or levied shall be replaced, in whole or in part, as revenue sources by one or more replace- ment taxes which are measured or calculated by or based, in whole or in part, upon the land, the improvements or on the rents derived therefrom and imposed upon Landlord, then Tenant shall be liable therefor. Tenant reserves the right to contest in good faith any such taxes, assessments or charges and in such event shall indemnify and hold Landlord harmless from any cost, expense or penalties in connection therewith; provided, however, that the foregoing shall not excuse Tenant from timely payment of all taxes required to be paid hereunder. b. UTILITIES. Tenant shall pay directly to the applicable company the cost of all utilities consumed on the Premises, including but not limited to power, electricity, gas, water, garbage disposal, sewer services, and telephone. c. INSURANCE. Tenant, at its sole cost, agrees that it will procure and keep in full force throughout the term hereof, at a minimum, the following types and amounts of insurance: Public Liability: personal injury in the amount of $500,000 per person, and $1,000,000 per occurrence; property damage in the amount of $50,000 per occurrence. ii. Casualty: fire and extended coverage for 100% of replacement cost of the building, leasehold improvements and Tenant's furnishings, fixtures and equipment; provided, however, that the casualty insurance policy as to the • building shall name Landlord as an additional insured and loss payee. Tenant appoints Landlord as the sole party to adjust any claim under such policy for the im- provements on the Premises and assigns to Landlord any rights Tenant might have to be paid the proceeds of such policy directly by the insurance carrier. All proceeds therefrom shall be payable solely to the Landlord. All such insurance shall be procured from a financially responsible insurance company authorized to do business in the State of Washington and approved in writing by Landlord; shall provide primary and not excess coverage; as to Tenant's public liability insurance, shall name Landlord as an additional insured and loss payee and provide that Landlord, although an additional insured, shall nevertheless be entitled to recovery thereunder for any loss or injury occasioned by the negligence or willful misconduct of Tenant or its agents, employees, or contractors; shall waive subrogation rights, if any, which the insurer may have against Landlord; shall have deductible amounts reasonably approved by Landlord; and shall require that Landlord be given at least twenty (20) days' prior written notice before any such insurance may be cancelled or changed with respect to the par- ties, coverage, limits of liability or costs of insurance. Tenant may, at its option, bring its obligations to insure under this section within the coverage of any so- called blanket policy or policies of insurance which it may now or hereafter carry, by appropriate amendment, rider, endorsement, or otherwise; provided, however, that the interest of Landlord shall thereby be as fully protected as it would be otherwise if this option to Tenant to use blanket policies were not permitted. Tenant shall, prior to the commencement of the term hereof, deliver to Landlord a copy of such policy or policies, or certificate of insurance in the case of blanket coverage, together with satisfactory evidence that the policy is in full force and effect on the commencement date of this Lease. In the event that Tenant fails to maintain any of the above - required insurance coverages, the Landlord may, upon giving to Tenant ten (10) days' notice, procure any or all of said insurance coverage, as Tenant's agent, and pay the premium therefor, and Tenant shall be liable. to pay such premiums to Landlord immediately upon notice of payment thereof and failure to pay same shall be deemed a breach of the Tenant's covenant to pay rent hereunder. 8. DAMAGE OR DESTRUCTION. If the building on the Premises shall be damaged or rendered untenantable by fire or other casualty, Landlord shall repair or rebuild the same to the extent of available insurance proceeds, unless (a) the building shall be damaged or destroyed to the extent of 40% or more of its full replacement cost, (b) the damage or destruction shall occur during the last year of the lease term, unless Tenant shall exercise any available option to renew, or (c) the insurance proceeds shall be insufficient to repair or restore the building or shall for any reason be unavailable, then in any of such events Landlord may, at its option, terminate this Lease on ten (10) days' written notice given to Tenant within forty -five (45) days following the date of the damage or destruction, and this Lease shall terminate on the 10th day following Landlord's notice as if such date were originally set forth as the termination date herein. LEASE AGREEMENT - 6 11. MAINTENANCE. LEASE AGREEMENT - 7 9. ACCIDENTS. Landlord shall not be liable for any damage, either to person or property, sustained by Tenant or by others, resulting from any defects now existing or hereafter arising in the Premises,: or caused by or resulting from fire, steam, electricity, gas, water or rain which may leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or other defects in pipes, wire, appliances, plumbing or lighting fixtures in the Premises. Tenant shall indemnify and hold Landlord harmless from any and all such claims and from all costs, damages, attorney's fees and liabilities incurred in defense of any such claims or any action or proceeding brought thereon. 10. ALTERATIONS AND IMPROVEMENTS. Any structural alterations or improvements to the leased Premises shall require the prior written approval of the Landlord, such approval not to be unreasonably withheld or delayed. Tenant agrees that any and all alterations or additions shall be made in compliance with the building codes and ordinances, laws and regulations 'applicable to the Premises. Should a building or other permit or permits be required by Tenant to accomplish said improvements, Landlord agrees to execute all documents required to obtain said permits including dedication documents if such are required to obtain said permits. In addition, Tenant further agrees to provide Landlord with ten (10) days' advance written notice of its intention to perform any work on the leased Premises which may give rise to any mechanic's lien, which notice will include the names and addresses of the contractor(s) who will perform said work. Upon completion of said work, Tenant will record a notice of completion in accordance with the laws of this state and provide Landlord with a copy of same within ten (10) days after recordation. a. Tenant shall keep the interior and exterior of the buildings and appurtenances, including the parking areas, the roof, and all building systems, including, but not limited to, plumbing, electrical, heating and cooling systems, which are a part of the demised Premises, in good working order, repair and condition at Tenant's sole cost and expense throughout the term of this Lease. b. Tenant shall further, at its sole cost, perform all necessary repairs and maintenance required hereunder, and /or which are made necessary by the use or misuse of the leased Premises by Tenant. 12. ASSIGNMENT. Tenant may not assign this Lease in whole or in part, or sublet the Premises, without first obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. If there shall be a cumulative transfer of over fifty percent (50 %) ' of equity interest in the Tenant corporation, such LEASE AGREEMENT - 8 transfer or change of control shall constitute an assignment as set out hereinabove. 13. CONDEMNATION. If any part of the Premises shall be taken or condemned for a public or quasi - public use, and a part thereof remains which is reasonably suitable for the use of the Premises permitted to be made by Tenant immediately prior to such condemnation, this Lease shall, as to the part so taken, terminate as of the date that possession shall vest in the condemnor and the rent payable hereunder shall be adjusted so that the Tenant shall be required to pay for the remainder of the term only such portion of such rent as the value of the part remaining after the condemnation bears to the value of the entire Premises at the date of condemnation. If all of the Premises are taken or condemned, or if so much of the Premises is taken or condemned that, in the reasonable judgment of Tenant, the aforesaid use by Tenant shall be substantially impaired, this Lease shall, at Tenant's option, terminate upon twenty (20) days' written notice to Landlord, in which event this Lease shall terminate on the 20th day following Tenant's notice as if such date were originally set forth as the termination date herein. In the event of a dispute between Landlord and Tenant under this clause, the matter shall be submitted to arbitration in accordance with the rules of the American Arbitration Association. Landlord shall be entitled to any and all compensation, damage, income, rent, awards and any other interest therein whatsoever which may be paid or made in connection therewith, and Tenant shall have no claim whatsoever against Landlord for the value of the unexpired term or otherwise; provided, however, that Tenant shall be entitled to any portion of the award made for the unamortized portion of any and all improvement costs of Tenant and for Tenant's moving expenses and /or loss of business. 14. DEFAULT. The following occurrences shall each be deemed an Event of Default by Tenant: a. FAILURE TO PAY. Tenant fails to pay any sum, including Rent, due under this Lease following five (5) days written notice from Landlord of the failure to pay. b. VACATION /ABANDONMENT. Tenant vacates the Premises (defined as an absence for at least 15 consecutive days without prior notice to Landlord), or Tenant abandons the Premises (defined as an absence of five (5) days or more while Tenant is in breach of some other term of this Lease). Tenant's vacation or abandonment of the Premises shall not be subject to any notice or right to cure. c. INSOLVENCY. Tenant becomes insolvent, voluntarily or involuntarily bankrupt, or a receiver, assignee or other liquidating officer is appointed for Tenant's business, provided that in the event of any involuntary bankruptcy or other insolvency proceeding, the , existence of such proceeding shall 15. REMEDIES LEASE AGREEMENT - 9 constitute an Event of Default only if such proceeding is not dismissed or vacated within 60 days after its institution or commencement. d. LEVY OR EXECUTION. Tenant's interest in this Lease or the Premises, or any part thereof, is taken by execution or other process of law directed against Tenant, or is taken upon or subjected to any attachment by any creditor of Tenant, if such attachment is not discharged within 15 days after being levied. e. OTHER NON - MONETARY DEFAULTS. Tenant breaches any agreement, term or covenant �f this Lease other than one requiring the payment of money and not otherwise enumerated in this Section, and the breach continues for a period of 30 days after notice by Landlord to Tenant of the breach; provided, however, that if the nature of the breach is such that more than thirty (30) days are required for Tenant to cure the same, Tenant shall not be deemed in default hereunder so long as Tenant commences cure of the breach within the 30 -day period and thereafter diligently prosecutes such cure to completion. Landlord shall have the following remedies upon an Event of Default. Landlord's rights and remedies under this Lease shall be cumulative, and none shall exclude any other right or remedy allowed by law. a. TERMINATION OF LEASE. Landlord may terminate Tenant's interest under the Lease, but no act by Landlord other than written notice from Landlord to Tenant of termination shall terminate this Lease. The Lease shall terminate on the date specified in the notice of termination. Upon termination of this Lease, Tenant will remain liable to Landlord for damages in an amount equal to the rent and other sums that would have been owing by Tenant under this Lease for the balance of the Lease term, less the net proceeds, if any, of any reletting of the Premises by Landlord subsequent to the termination, after deducting all Landlord's Reletting Expenses (as defined below). Landlord shall be entitled to either collect damages from Tenant monthly on the days on which rent or other amounts would have been payable under the Lease, or alternatively, Landlord may accelerate Tenant's obligations under the Lease and recover from Tenant: (i) unpaid rent which had been earned at the time of termination; (ii) the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of rent loss that Tenant proves could reasonably have been avoided; (iii) the amount by which the unpaid rent for the balance of the term of the Lease after the time of award exceeds the amount of rent loss that Tenant proves could reasonably be avoided (discounting such amount by the discount rate of the Federal LEASE AGREEMENT - 10 Reserve Bank of San Francisco at the time of the award, plus 1%); and (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the Lease, or which in the ordinary course would be likely to result from the Event of Default, including without limitation Reletting Expenses described in Section 15b. b. RE -ENTRY AND RELETTING. Landlord may continue this Lease in full force and effect, and in accordance with applicable law, re -enter and take possession of the Premises or any part thereof, expel the Tenant from the Premises and anyone claiming through or under the Tenant, and remove the personal property of either. Landlord may relet the Premises, or any part of them, in Landlord's or Tenant's name for the account of Tenant, for such period of time and at such other terms and conditions, as Landlord, in its discretion, may determine. Landlord may collect and receive the rents for the Premises. Re -entry or taking possession of the Premises by Landlord under this Section shall not be construed as an election on Landlord's part to terminate this Lease, unless a written notice of termination is given to Tenant. Landlord reserves the right following any re -entry or reletting, or both, under this Section to exercise its right to terminate the Lease. During the Event of Default, Tenant will pay Landlord the rent and other sums which would be payable under this Lease if repossession had not occurred, plus the net proceeds, if any, after reletting the Premises, after deducting Landlord's Reletting Expenses. "Reletting Expenses" is defined to include all expenses incurred by Landlord in connection with reletting the Premises, including without limitation, all repossession costs, brokerage commissions, attorneys' fees, remodeling and repair costs, costs for removing and storing Tenant's property and equipment, and rent concessions granted by Landlord to any new Tenant, prorated over the life of the new lease. c. NONPAYMENT OF ADDITIONAL RENT. All costs which Tenant agrees to pay to Landlord pursuant.to this Lease shall in the event of nonpayment be treated as if they were payments of Rent, and Landlord shall have all the rights herein provided for in case of nonpayment of Rent. d. FAILURE TO REMOVE PROPERTY. If Tenant fails to remove any of its property from the Premises at Landlord's request following an uncured Event of Default, Landlord may, at its option, remove and store the property at Tenant's expense and risk. If Tenant does not pay the storage cost within five (5) days of Landlord's request, Landlord may, at its option, have any or all of such property sold at public or private sale (and Landlord may become a purchaser at such sale), in such manner as Landlord deems proper, without notice to Tenant. Landlord shall apply the proceeds of such sale: (i) to the expense of such sate, including reasonable attorneys' fees actually incurred; (ii) to the payment of the costs or charges for storing such property; (iii) to the payment of any other sums of money which may then be or thereafter become due Landlord from Tenant under any of the terms hereof; and (iv) the balance, .if any, to Tenant. Nothing in this Section shall limit Landlord's right to sell Tenant's personal property as permitted by law to foreclose Landlord's lien for unpaid rent. Notwithstanding any other term or provision hereof, Landlord agrees to use reasonable efforts to mitigate its damages in the event of Tenant's default under this Lease. 16. LIENS. Tenant shall keep the Premises free from any liens created by or through Tenant. Tenant shall indemnify and hold Landlord harmless from liability from any such liens including, without limitation, liens arising from any Alterations. If a lien is filed against the Premises by any person claiming by, through or under Tenant, Tenant shall, upon request of Landlord, at Tenant's expense, immediately furnish to Landlord a bond in form and amount and issued by a surety reasonably satisfactory to Landlord, indemnifying Landlord and the Premises against all liabilities, costs and expenses, including attorneys' fees, which Landlord could reasonably incur as a result of such lien(s). 17. ACCESS. After reasonable notice from Landlord (except in cases of emergency, where no notice is required), Tenant shall permit Landlord and its agents and employees to enter the Premises at all reasonable times for the purposes of repair or inspection. This Section shall not impose any repair or other obligation upon Landlord not expressly stated elsewhere in this Lease. After reasonable notice to Tenant, Landlord shall have the right to enter the Premises for the purpose of showing the Premises to prospective purchasers or lenders at any time, and to prospective tenants within 180 days prior to the expiration or sooner termination of the Lease term. 18. SIGNS. Subject to all applicable, laws and ordinances, Tenant may affix, erect and maintain on the Premises such signs or advertisements as Tenant shall deem reasonably necessary to the conduct of its business; provided, however, that the cost of erection and maintenance of any such sign or advertisement shall be the responsibility of Tenant. At the expiration of this Lease, Tenant may, at its option, remove all such signs. 19. COVENANT OF QUIET ENJOYMENT. Subject to the remaining provisions of this Lease, Landlord covenants and agrees to and with Tenant that so long as Tenant is not in default under this Lease, Tenant shall have the quiet and peaceable enjoyment of the Premises. LEASE AGREEMENT - 11 LEASE AGREEMENT - 12 20. TIME OF ESSENCE. Time is hereby expressly declared to be of the essence of this Lease and all covenants, agreements, conditions and obligations herein contained. 21. SURRENDER. At the expiration of the term or any extension of the term of this Lease, Tenant agrees to quit and surrender the possession of the Premises to Landlord in as good condition as at the commencement hereof, excepting reason- able wear and tear, and damage by the perils covered by insurance or required hereunder to be covered by Tenant's standard form fire insurance policy with extended coverage. 22. HOLDING OVER. Any holding over by Tenant after expiration of the term hereof or any extension thereof, shall be construed as a tenancy from month to month, with Landlord's consent, subject to all the conditions of this Lease and at the rental rate effective as of the last month of the term expired. Either party may terminate such month -to -month tenancy by giving to the other thirty (30) days' written notice of its intention to terminate. In the event Tenant holds over in the Premises without having first obtained Landlord's prior written consent, Landlord shall have all rights of re -entry and other remedies set forth herein or as otherwise may be provided by law. 23. RIGHTS OF PARTIES. Subject to the remaining terms and conditions hereof, either Landlord or Tenant may from time to time at its option exercise all rights or remedies which either may have at law or in equity and nothing herein contained shall be construed as in any way abridging of waiving such rights or remedies; and any consent, waiver, compromise or indulgence by one party hereto of or under any of the provisions of this Lease, or as to any breach or default hereunder by the other party hereof,. shall not constitute or be construed as a waiver of the former party's right to enforce performance of the conditions and terms hereof at all other times. 24. LANDLORD -- RELEASE. The term "Landlord" as used herein regarding covenants or obligations of the Landlord, shall be limited to and mean only the owner at the time in question of the Premises, and in the event of any transfer of title in the Premises, the Landlord named herein shall automatically be freed from and after the date of such transfer of all liability for the performance of any covenants or obligations to be performed by Landlord and arising thereafter. In the event Tenant shall obtain a money judgment against Landlord hereunder, such judgment shall be satisfied solely out of the proceeds of sale received from execution of such judgment against Landlord's right, title and interest in the property, but Landlord shall not be personally liable for any deficiency. 25. SUBORDINATION. Tenant agrees upon request of Landlord to subordinate this Lease and its rights hereunder to the lien of any mortgage, deed of trust or other voluntary hypothecation charged against the Premises or any land, building or LEASE AGREEMENT - 13 improvements included therein, or of which the Premises are a part, or any portion or portions thereof, which mortgage, deed of trust or other voluntary hypothecation is to be recorded. Tenant further agrees to execute at any time and from time to time such documents as may be required to effectuate such subordination; provided, however, that Tenant shall not be required to effectuate such subordination or other consents hypothecating any interest in the Premises unless the mortgagee, beneficiary or hypothecary creditor named in such mortgage or deed of trust shall first agree in writing that so long as Tenant is not in default of any of the terms, covenants or conditions of this Lease, neither this Lease nor any of the rights of Tenant hereunder shall be terminated or modified or be subject to termination or modification` by virtue of any provision of such mortgage, deed of trust or other hypothecation, or any sale of the Premises upon foreclosure or other exercise of remedies by such mortgagee, beneficiary or hypothecary creditor. 26. RECORDING. This Lease shall not be recorded. At the request of either party, the parties shall execute a short form "Memorandum of Lease" for recording purposes. In the event that Landlord or Tenant shall terminate and cancel this Lease pursuant to the provisions contained herein, Tenant shall prepare and execute, in recordable form, and deliver to Landlord, a release and cancellation of this Lease. 27. NOTICES. All notices under this Lease shall be in writing and effective (i) when delivered in person, (ii) three (3) days after being sent by registered or certified mail to Landlord or Tenant, as the case may be; at the Notice Addresses set forth next to the parties' respective signatures below, or (iii) upon confirmed transmission by facsimile to such persons at'the facsimile numbers set forth next to the parties' respective signatures below or such other addresses /facsimile numbers as may from time to time be designated by such parties in writing. 28. BINDING FUTURE PARTIES. Subject to the limitations set forth elsewhere herein regarding assignment and subletting by Tenant, each and all of the terms and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal and legal representatives, successors and assigns. 29. CONSTRUCTION OF WORDS. Wherever the singular number is used herein, the same may include the plural if the context so requires, and any gender used herein may likewise include the other gender. 30. PARAGRAPH AND SECTION HEADINGS. Paragraph and section headings contained herein are for convenience only and shall in no way limit or restrict the interpretation to be placed upon any word or phrase following each heading. 31. NO ORAL MODIFICATION. This instrument contains the entire agreement made between the parties and may not be modified orally or in any manner other than by an agreement in writing signed by all the parties hereto or their respective successors in interest. 32. BROKERAGE. Landlord and Tenant each represent and warrant to the other that neither of them have entered into any agreement with any person, firm or corporation, or become indirectly a party to any such agreement, and that neither of them has taken any other action or is aware of any facts that could result in the assertion of any claim against the other party for the payment of any commission or brokerage or finder's fee in connection with the execution of this Lease. 33. ATTORNEYS' FEES. In the event that either party retains counsel to enforce this Lease, the defaulting party shall pay to the enforcing party its costs and expenses including reasonable attorneys' fees incurred, whether or not suit is filed. 34. INTEREST. In the event Landlord is required or permitted to advance monies on behalf of Tenant, or in the event that Tenant shall fail to pay the rent, additional rent or other sums hereunder, the monies :so advanced and the sums which Tenant shall have failed to pay shall bear simple interest at the rate of ten percent (10 %) per annum or the maximum rate of interest permitted under the laws of this state, if said maximum rate is Tess than ten percent (10 %) per annum from the date of such advance or the date upon which such sums were due, as the case may be. 35. COUNTERPARTS; FACSIMILE SIGNATURES. This Lease may be executed in any number of counterparts which, when taken together, shall be deemed to be an original. Facsimile transmission of any signed original document, or re- transmission of any signed facsimile transmission, shall be the same as delivery of an original. At the request of either party, the parties will confirm facsimile transmitted signatures by signing an original document. 36. LEASE NOT BINDING. This Lease shall not be deemed binding or in effect until fully executed by both Tenant and Landlord. 37. GOVERNING LAW. All matters pertaining to this agreement (including its interpretation, application, validity, performance and breach), shall be governed by, construed and enforced in accordance with the laws of the State of Wash- ington. Venue in any such action shall be King County, Washington. In the event that litigation results from or arises out of this agreement or the performance thereof, the parties agree to reimburse the prevailing party's reasonable attorney's fees, court costs, and all other expenses, in addition to any other relief to which the prevailing party may be entitled. LEASE AGREEMENT - 14 • IN WITNESS WHEREOF, the parties have duly executed this Lease the day and year first above written. Individuals signing on behalf of a principal warrant that they have the authority to bind their principals. LANDLORD: TENANT: EDWIN J. BEC R LEASE AGREEMENT - 15 BECKER TRUCKING, INC. By 'ROLAN"BECKER� Its President Landlord Notary: STATE OF WASHINGTON County of KING DATED: LEASE AGREEMENT - 16 ) ss. I CERTIFY that I know or have satisfactory evidence that EDWIN J. BECKER is the person who appeared before me, and said person acknowledged that he signed this instrument and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. DATED: Z V Ji)L'1 , 1997. L tAxEl° D40,,, _ [print name] NOTARY PUBLIC in and for the State of Washington, residing at sen 1. Jh. My appointment expires z 3 QJGosr 2C/U1) Tenant Notary: STATE OF WASHINGTON ) ) ss. CountyofKlNG ) I CERTIFY that I know or have satisfactory evidence that ROLAN BECKER is the person who appeared before me, and acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the president of BECKER TRUCKING, INC., to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. - rOL '1 , 1997. NOT `'Y PUBLIC in j d for the State of Washington, residing at scvtZ E AJA. My appointment expires 2 3 AJC 74.7c6 EXHIBIT A The Premises LOT 4 AND LOTS 18 THROUGH 25, INCLUSIVE, BLOCK 9, "RIVERTON," A REPLAT OF PART OF RIVERSIDE INTERURBAN TRACTS, ACCORDING TO THE PLAT RECORDED IN VOLUMES 13 OF PLATS, PAGE 36, IN KING COUNTY, WASHINGTON, EXCEPT THAT PORTION OF SAID LOTS 4, 22, 23, 24 AND 25 HERETOFORE CONVEYED TO KING COUNTY BY DEED RECORDED UNDER AUDITOR'S FILE NO. 1004994, RECORDS OF SAID COUNTY, FOR ROAD PURPOSES. AND EXCEPT THE EASTERLY 12 FEET OF LOTS 4, 22, 23, 24 AND 25; AND THE SOUTHERLY 12 FEET OF LOTS 18, 19, 20, 21 AND 25, ALL IN BLOCK 9 OF "RIVERTON." A REPLAT OF PART OF RIVERSIDE INTERURBAN TRACTS, AS PER PLAT RECORDED IN VOLUME 13 OF PLATS, PAGE 36, RECORDS OF KING COUNTY, STATE OF WASHINGTON; ALL AS SITUATE IN THE COUNTY OF KING, STATE OF WASHINGTON. December 13, 2004 Via Fax, Regular and Certified US Mail Mr. Robie G. Russell Attorney at Law 76 S. Main St. Seattle, WA 98104 -2514 RE: Declaration of Clayton M. Betz Dear Mr. Russell: incerely, Jack Pace Deputy Director cc. Shelley Kerslake, ity Attorney File (L04 -026) COMPLETE THIS SECTION ON DELIVERY 4. Restricted Deliveryl Fee) 0 Yes SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete • item 4 if Restricted Delivery is desired. C t 4 ■ Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailptece, Departni or on the front if space permits- 1. Article Addressed to: r' crri Mr. Robie G. Russell Attorney at Law 76 S. Main St. Seattle, WA 98104 -2514 2. Article Number (Transfer from service label) PS Form 3811, August 2001 N If you have any questions, please call (206) 431 -3 E- ru tr- m ti (Endo rs em melR�ui) red ru Teel Postage & Fees rn 0 Return Redept Fee (Endo rsement Required) 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • D. Is delivery address different from item ? 0 Yes u YES, enter delivery address below 0 No r' KW1LA r, 2004 - /C iservtce type g Certified Mail 0 Express Mail Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 7003 2260 0006 4392 8457 Domestic Return Receipt On December 2, 2004, the City wrote you a letter asking for the complete signed contract between Edwin J. Becker and Becker Trucking, Incorporated, which you submitted as part of the Clayton M. Betz Declaration. The City noted in its December 2, 2004 letter the contract that was provided only included pages 1, 15, and 16 and was not signed by Becker Trucking. Provide the complete, signed contract by 5:00pm, Friday, December 17, 2004. If the contract is not submitted by the December 17, 2004 deadline the City will not be able to consider it when issuing its Code Interpretation. U.S Postal Service,. CERTIFIED MAIL` (Doii esticMauo n i -; TM RECEIPT Y, No InsiiranceCoverage Provided) :livery information visit oar `website`at IA www.sps cogrb a SE Postage , Certified Fee Mr. Roble G. Russell ° PO Box No. Attorney y at Law i --- - - -- - - -• 76 S. Main St. PS Form 3800,,I00e OOZ Seattle, WA 98104 -2514 edwevell Postmark Here 102595-02-M •3665 December 2, 2004 Via Fax and US Mail Mr. Robie G. Russell Attorney at Law 76 S. Main St. Seattle, WA 98104 -2514 RE: Declaration of Clayton M. Betz Dear Mr. Russell: Thank you for providing the declaration of Clayton M. Betz received by the City on December 1, 2004. One of the attachments provided is the contract between Edwin J. Becker and Becker Trucking, Inc. The City did not receive the complete contract document. The City only received pages 1, 15, and 16. Additionally, the contract is not signed by Rolan Becker. Please provide the complete signed contract to the City. If you have any questions, please call (206) 431 -3670. ck Pace Deputy Director Cizy of Tukwlla Department of Community Development Steve Lancaster, Director cc. Shelley Kerslake, City Attorney t em 04 -026) 7 Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 VIA FACSIMILE (206) 433 -1833 Jack Pace, Deputy Director Department of Community Development City of Tukwila 6300 Southcenter Boulevard, Ste. 100 Tukwila, WA 98188 Dear Mr. Pace: 9810 \001 I \tukw ila.ltr November 30, 2004 ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 Facsimile (206) 621 -2104 (206) 621-2102 Licensed in Washington and Idaho Our Reference No. 9810/0011 November 30, 2004 Re: Truck Terminal -- 12677 East Marginal Way South, Tukwila, WA ReCE De/ 01 , 2004 vaT I represent the Becker Family Revocable Living Trust ( "Trust "), owner of the truck terminal located at 12677 East Marginal Way South, Tukwila, Washington ( "Terminal "). I write in answer to your letter of October 22, 2004, and received here October 27, 2004. Your letter was provided in response to our letter of September 13, 2004, which asked for a code interpretation and a response to our August 12th request for production of public records related to this matter. Although your letter mentions certain sections of the Tukwila Municipal Code, it does not provide a code interpretation. Rather, it appears to be a request for additional information to aid you in making such a determination. Specifically, you have asked us to provide you with relevant information pertaining to leases, utility records, licenses, and other material which may shed some light on the use of the Terminal. Jack Pace, Deputy Director November 30, 2004 Page 2 Background Requested Information Conclusion 9810 \0011 \tukw ila.ltr November 30, 2004 The Terminal has been owned by Edwin J. Becker since the mid -70s, and has been continuously operated as a truck terminal during his ownership. Mr. Becker subsequently caused the transfer of title to the Terminal to be made to the Trust for estate planning purposes. However, that transfer did not affect the Terminal's use. Mr. Becker operated his trucking company at the Terminal until the mid -80s, when he leased the Terminal to several other trucking firms, including Becker Trucking, Inc., a trucking company owned and operated by his sons, Rolan Becker and Pat Becker. In 1999, Pat Becker terminated his relationship with Becker Trucking, Inc., and started a new trucking company known as Becker Transfer. In August, 2002, Becker Trucking leased an additional truck terminal facility at 6350 South 143rd Street, Tukwila, Washington, and transferred its administrative operations to that facility. However, it continued to use the Terminal for the transfer of freight and other trucking related activities, including the parking of semi - trucks and trailers through the end of the year. In addition, Becker Transfer, Seattle Air Cargo, and other trucking companies have used the during the sane time period. The Terminal subsequently was leased to Edgmon & Son Trucking in January, 2003. Please find attached hereto the Declaration of Clayton Betz with attachments. Mr. Betz is the Trust's accountant and handles its day to day business affairs. Mr. Betz is familiar with all matters pertinent hereto and will be called as a witness should this matter proceed further. According to Mr. Betz's Declaration, Becker Trucking, Inc. continued to pay rent and use the Terminal through October, 2002. In addition, Becker Transfer and Seattle Air Cargo also used the Terminal in the fall of 2002. In January, 2003, Edgmon & Son Trucking leased the Terminal and has been in continuous operation there since. Based upon the information provided by Mr. Betz, it is obvious that the Terminal has been in continuous use. In closing, let me again reiterate that the owner of the Terminal, the Trust, has never expressed any intent to abandon the existing use of the Terminal, nor has it done so. Even if, for the sake of argument, the Trust were to agree that the Terminal was not used from the time Becker Trucking, Inc. began its additional operations elsewhere in Tukwila, and the subsequent Jack Pace, Deputy Director November 30, 2004 Page 3 RGR/mj Attachment 9810\0011 \tukw ila.Itr November 30, 2004 lease of the Terminal to Edgmon and Son Trucking, that would only amount to a period of four months, several months short of the city's arbitrary time limitations. Furthermore, as the case law cited in our earlier correspondence unequivocally states, while time is one factor that may be considered, it is not determinative, particularly where, as here, there is no intent to abandon. cc: Edwin J. Becker Shelley M. Kerslake, City Attorney NUV G7 G✓JYJ4 .L • J. r WJL r 1IYt-IIY.G 1 4 5 6 7 g 9 10 11 12 13 14 15 16 17 18 19 2U 21 22 23 24 IN RE: 12677 EAST MARGINAL WAY SOUTH TUKWILA, WASHINGTON COMES NOW Clayton M. Betz and declares the following to be true under penalty of perjury pursuant to the taws of the State of Washington: 1. I am the accountant and business manager for the Becker Family Revocable Living Trust ( "Trust "), a trust formed under the laws of the State of Washington. 2. The Trust is the owner of a truck terminal ( "Terminal ") located at 12677 E. Marginal Way South, Tukwila, Washington. The Terminal was owned by Edwin S. Becker prior to its transfer into the Trust, Mr. Becker purchased the real property in 1974 for the purpose of developing and operating a truck terminal, a use that has been continuous since that time. 3. The Terminal was leased to Becker Trucking, Inc. pursuant to a. Lease dated April 1, 1997, and attached hereto ac F.xhihit A, Although the primary term ended on March 31, 2002, DECLARATION OF CLAYTON 13ETZ - 1 ' BEFORE TIM CITY OF TUKWILA DEPARTMENT OF COMMUNITY DEVELOPMENT NO, DECLARATION OF CLAYTON M. BETZ 1 A4 92% GJJ 741 Cl44G r. YJl /IJC ROBES 0. P.U5S$LL ATTQA768Y AT LAW 76 South Man $trop Leettl,. WiahfoEtcn NUM•151 (06) 6714101 P_02 NOV -29 - 2004 16:11 1 2 3 4 5 6 7 S 9 10 11 12 13 1.4 15 16 17 18 19 20 21 22 23 24 1 FINANCE 2b.5 '341 U442 N . b2 /02 Becker Trucking continued to use and pay rent on the Terminal pursuant to the holdover provision of the Lease through October, 2002, 4. From October, 2002, through January, 2003, Becker Transfer also used the Termin for the transfer and storage of freight and equipment. 5. The Terminal was subsequently leased to Edgmon & Son Trucking pursuant to a Lease dated January 23, 2003, and attached hereto as Exhibit B. Edgmon took possession of the Terminal and began operations on February 1, 2003. 6. The Trust never received any notice or communication from the City of Tukwila until a certified letter was delivered to me on or about June 12, 2004. I was quite surprised by the content of the letter since I knew the Terminal had been in continuous use as a truck terminal since the 1970s, // DATED this o�f /J7day of November, 2004, at Seattle Washington, DECLARATION OF CLAYTON k3ETZ - Clayton M. Betz ROBIE G. RVRAPLL ATTORNSY AT LAW 7L San/6 Main Simi, a.aat.. w. Oiimeioa ?810 Mg) e114em TOTAL P.02 " LEASE AGREEMENT tyWeit A THIS LEASE is made effective the 1st day of April, 1997, by and between EDWIN J. BECKER (hereinafter referred to as "Landlord "), and BECKER TRUCKING, INC. (hereinafter referred to as "Tenant "). 2. PRIMARY TERM. The primary term of this Lease shall be five (5) years, commencing on April 1, 1997 and terminating March 31, 2002; provided, however, that Tenant may terminate this Lease at any time during the term hereof, as the same may be extended, upon 120 days' written notice to Landlord, and this Lease shall terminate on the 120th day following Tenant's notice as if such date were originally set forth as the termination date herein. WITNESSETH: 1. DESCRIPTION OF PREMISES. Landlord hereby leases to Tenant and Tenant takes from Landlord, for the term and according to the covenants and conditions contained herein, all that certain land together with the improvements thereon at 12677 East Marginal Way South, Seattle, Washington, 98168 as more particularly described in Exhibit "A" (the "Premises "). 3. OPTION TO RENEW. Provided that Tenant is not in default hereunder beyond any applicable cure period, either at the time of exercising an option to renew or on the commencement date of the renewal term, Tenant shall have the option to renew this Lease for two (2) additional terms of five (5) years each ( "Renewal Terms ") on the same terms and conditions as are provided for in this Lease, except for term, which shall be extended for the period of the renewal term, and for monthly rent, which shall be determined by using the method set forth in paragraph 4 below. In no event shall the monthly rent during any Renewal Term be less than that last in effect under the Lease prior to the renewal. Each Renewal Term shall begin upon the expiration of the primary term, or prior Renewal Term, as the case may be. The Renewal Terms shall not be severable or separately assignable from this Lease. Tenant shall exercise a renewal option by delivering to Landlord written notice of its election to renew no later than one - hundred twenty (120) days prior to the expiration of the primary term, or prior Renewal Term, as the case may be. LEASE AGREEMENT - 1 EDWIN J. BEC R LEASE AGREEMENT - 15 IN WITNESS WHEREOF, the parties have duly executed this Lease the day and year first above written. Individuals signing on behalf of a principal warrant that they have the authority to bind their. principals. LANDLORD: TENANT: BECKER TRUCKING, INC. By 'ROLAN BECKER Its President Landlord Notary: STATE OF WASHINGTON County of KING I CERTIFY that I know or have satisfactory evidence that EDWIN J. BECKER is the person who appeared before me, and said person acknowledged that he signed this instrument and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. DATED: 2'7/ Tenant Notary: STATE OF WASHINGTON ) ss. County of KING DATED: LEASE AGREEMENT - 16 ss. , 1997. , 1997. Auto [print name] NOTARY PUBLIC in and for the State of Washington, residing at sfl My appointment expires 2 3 iLJ isr 2U7/ I CERTIFY that I know or have satisfactory evidence that ROLAN BECKER is the person who appeared before me, and acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the president of BECKER TRUCKING, INC., to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. NOT Y PUBLIC in j d for the State of Washington, residing at 5 E IJA. My appointment expires 25 A-LIC -Osr & ez) NOV-29-2004 10 45 • FWSD FINANCE 25.5 l41 l442 t'M1 /0 y e$444,;a ORIGINAL ID Copyright 199 cav e' Commercial Brokers Associatio All Rights Reserve CBA Form ST-I. LEASE AGREEMENT Single Tenant Lease Agreernen MO (Single Tenant For Entire Parcel -- Triple Net) P Rev. c, Page 7 of 1 THIS LEASE AGREEMENT (the "Lease ") is entered into this 23rd day of January, 2003 between Mr. Ed Becker ( "Landlord "), and Edamon & Son Trucking ("Tenant "). Landlord and Tenant agree as follows: 1. LEASE SUMMARY. a. Leased Premises. The leased commercial real estate (the "Premises ") consist of the real property legally described on attached Exhibit A, and all improvements thereon. b. Lease Commencement Date. The Lease shall commence on February 1, 2003, or such earlier or later.date as provided in Section 3 (the "Commencement Date "). c. Lease Termination Date. The Lease shall terminate at midnight on November 30, 2003 , or such earlier or later date as provided in Section 3 (the "Termination Date "). d. Base Rent. The base monthly rent shall be (check one): 0 $ 6.000.00, or ❑ according to the Rent Rider attached hereto. Rent shall be payable at Landlord's address shown in Section 1(h) below, or such other place designated in writing by Landlord. e. Prepaid Rent. Upon execution of this Lease, Tenant shall deliver to Landlord the sum of $ 6,0.00.00 as prepaid rent, to be applied to the Rent due for the first month(s) of the Lease. f. Security Deposit. The amount of the security deposit is $ 6,000.00. g. Permitted Use. The Premises shall be used only for administrative, storage and trucking and for no other purpose without the prior written consent of Landlord. It Notice and Payment Addresses: Landlord: 2726 SW 327 Federal Wav, WA 98053 Fax No.: 253 - 941 - 0442 Tenant: 12677 E. Marginal Way, Tukwila, WA 98168 Fax No.: 206 - 658 -1058 _P. REMISES.__Landlordtleases.t oTenaat,- andIenantleasesfom .Landlord The .Premises upon the .___..__ —. terms specified in this Lease. 3. TERM. a. Commencement Date. The Lease shall commence on the date specified in Section 1(b), or on such earlier or later date as may be specified by written notice delivered by Landlord to Tenant advising Tenant that the Premises are ready for possession and specifying the Commencement Date, which shall not be less than days (30 if not filled in) days following the date of such notice. If Tenant occupies the Premises before the Commencement Date specified in Section 1(b), then the Commencement Date shall be the date of occupancy. If Landlord acts diligently to make the Premises available to Tenant, neither Landlord nor any agent or employee of Landlord shall be liable for any damage or loss due to Landlord's inability or failure to deliver possession of the Premises to Tenant as provided in this Lease. The Termination Date shall be modified upon any change in the Commencement Date so that the length of the Lease term is not changed. If Landlord does not deliver possession of the Premises to Tenant within days (60 if not filled in) after the date specified in Section 1(b), Tenant may elect to cancel this Lease by giving written notice to Landlord within 10 days after such time period ends. If Tenant gives such notice, the Lease shall be cancelled, all prepaid rent and security deposits shall be refunded to tenant, and neither Landlord nor Tenant shall have any further obligations to the other. The first "Lease Year" shall commence on the Commencement Date and shall end on the date which is twelve (12) months from the end of the month in which the Commencement Date occurs. Each successive NOV -29 -2004 10 :46 FWSD FINANCE Ed Becker Owner BY: ITS: @ Copyright 199 Commercial Brokers Assoc+atio MI Rights Reserve CBA Form ST-L LEASE AGREEMENT Single Tenant Lease Agreemen Rev, 08/0 (Single Tenant For Entire Parcel — Triple Net) page 15 yr 1 (Continued) ...... IN WITNESS WHEREOF t - Lease has been executed the date an year first a BY: ITS: 25.5 541 0442 H.162/09 cak/ NUV — dy - 216164 '1 b ; 4b r W5ll I NHNI.t STATE OF WASHINGTON ss. COUNTY OF A ) LEASE AGREEMENT (Single Tenant For Entire Parcel — Triple Net) (Continued) I certify that I know or ha satisfactory evidence that Sj L 4P ct I a/141 _ 77oa A2/ the person who appeared before me and said person acknowledged that 1 .1. - signed this instrument, on oath stated that was authorized to execute the instrument and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: (Seal or stamp) STATE OF WASHINGTON COUNTY OF Pe:4/W1/1 (Seal or stamp) PATRICIA S. BELL NOTARY PUBLIC STATE OF WASHINGTON COMMIssrt?r y EXPIRES SF.:PTF- _ '' ?S, ' .2003 ) ss. DATED: A05 , A . .e• .iG /;!L tiII Printed Name: NOTARY PUBLIC in and for the State of Washington, residing at My Commission expires: D2 //•7 I certify that I know or have satisfactory evidence that �//t)./N A.P who appeared before me and said person acknowledged that signed this instrument, on oath stated that authorized to execute the ins ument agd acknowledged it as the mentioned in the instrument. dDi J41 16444 t'. b.5 /1ffy @ Copyright 199 Commercial Brokers Assotiatio Air Rights Reserve CSA Form ST -L Single Tenant lease Agreemen Rev. 0810 Page Iii of 1 o Is the person was of to be the free and voluntary act of such party for the uses and purposes Printed Name: of Washington, residing at My Commission expires: NOTARY PUBLIC in and for the State D01) //th /L-L- q��rs /o,3 October 22, 2004 Mr. Robie G. Russell Attorney at Law 76 South Main St. Seattle, WA 98104 -2514 Department of Community Development Steve Lancaster, Director RE: Request for Code Interpretation received by the City on September 14, 2004 Dear Mr. Russell: Code Interpretation The Department of Community Development has received your letter dated September 13, 2004. The letter requests that a code interpretation be made regarding the old Becker Truck Terminal site at 12677 East Marginal Way South, Tukwila, Washington. Background The property in question is located on the northwest comer of the intersection of East Marginal Way and South 128 Street. The following parcel numbers have been assigned to the property 734560- 0685 and 7345600766. Parcel 734560 -0685 is zoned Commercial/Light Industrial (C/LI), parcel 734560 - 0766 is zoned Commercial/Light Industrial and Low Density Residential (LDR). The subject parcels were annexed into the City of Tukwila in 1989 as part of the Riverton annexation. Becker Trucking Incorporated occupied and used the site as a manned truck terminal up until April 17, 2002 when they relocated their business to 6350 S. 143r Street. Eight months after Becker relocated their business to 6350 S. 143` Street, they submitted a business license application to operate an "unmanned truck terminal ". The City Clerk did not charge any fees for the business license application since the site would be unmanned. As part of the review process for the business license application, the Planning Department sent three letters to the applicant to obtain information regarding the lapse time since Becker moved to S. 143` site on April 17, 2002 until the new license application was submitted on December 31, 2002. There was no response from the applicant in regards to the City's letters. The business license application for an "unmanned terminal" was denied on December 15, 2003 and no appeal of the City's decision was filed. Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 Aerial photos of the site taken in June and September of 2002 indicate that the site was not being used. Water records from Water District 125 show a significant reduction in use from May 15, 2002 to January 15, 2003 In April of 2004, City staff received complaints of noise from the subject property. The City had no record of a business operating on the site. On April 26, 2004, Brandon Miles, Assistant Planner and Kathy Stetson, Code Enforcement Officer visited the site and met with the operators of the business. The business operators did not have a business license issued by the City of Tukwila. The City Clerk's Office sent the business operators a business license application. The application was submitted to the City on April 26, 2004. The business name was "Edgmon and Son Trucking, LLC" and the description of the business given was for "trucking ". It was noted on the business license application that Edgmon and Son Trucking began operating at the site on January 1, 2004. Applicable Code Provisions The following sections of the Tukwila Municipal Code (TMC) are relevant to your Code Interpretation request: TMC 18.10 -Low Density Residential (LDR) TMC 18.30- Commercial/Light Industrial (C/LI) TMC 18.70- Non - conforming Lots, Structures, and Uses Discussion Truck terminals are a permitted use in the C/LI zoning district (TMC 18.30.020 (58)). Yet, they are not a permitted use within the LDR zoning classification (TMC 18.10.010). As previously noted, parcel 734560 -0766 is zoned C/LI and LDR. City Business License records show that Becker Trucking Incorporated operated at the above site until April 17, 2002. Becker Trucking Incorporated was allowed to operate within the C/LI zone as an outright permitted use (TMC 18.30.020 (58)) and Becker Trucking Incorporated was permitted to operate on the LDR portion of the property as a non - conforming use. TMC 18.06.560 defines a nonconforming use as the use of land which does not conform to the use regulations of the district in which the use exists. Under TMC 18.70.040 a nonconforming use is permitted to continue to operate provide the use remains lawful and is subject to the restrictions laid out in TMC 18.70.040. The following restrictions are relevant in this'matter. If a non - conforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, whichever occurs first, any subsequent use shall conform to the regulations specified by this title for the district in which such use is locate (TMC 18.70.040 (3)). If a change of use is proposed to a use determined to be nonconforming by application provisions in this title, the proposed new use must be a permitted use in it zone or a use approved under a Conditional Use or Unclassified Use Permit process subject to review and approval by the Planning Commission and/or the City Council For the purposes of implementing this section, a change of use constitutes a change from one Permitted, Conditional or Unclassified Use category to another such use category as listed within the zoning code (TMC 18.70.040 (5)). Information available to the City appears to show a cessation in use of the property as a truck terminal. The City's information is as follows: 1. Becker Trucking Incorporated moved their manned truck terminal site on April 17, 2002. 2. Aerial photos of the site taken in June and September of 2002 show a significant change in the use of the property when compared to photos during time period when Becker was known to occupy the site. 3. Water records from Water District 125 show a significant reduction in water from May 15, 2002 to January 15, 2003 4. There was no business operating on the site Clarification The City would like additional information prior to making a fmal decision on the non - conforming rights for the subject property. The City would request that the following be submitted: 1. Copies of the lease agreement between the property owner and all tenants who operated at the site since January of 2002. 2. Utility records from Seattle City Light from January 2002 through January 2004. 3. Copies of license from any Federal, State, or Local government entity for Becker Trucking Incorporated, Becker Transfer, Incorporated, and Edgmon and Son Trucking. 4. Any other information that shows the property was used as a truck terminal between April of 2002 and January of 2004. Please provide the above information within 14 -days from the date of this letter. If additional information cannot be produced the fmal Code Interpretation will be made on the information available to the City. If you have any questions, please call (206) 431 -3670. Sincerely, Jac Pace Deputy Director cc. Shelley lake, City Attorney File Licensed in Washington and Idaho Our Reference No. 9810/0011 VIA FACSIMILE AND US MAIL (425) 392 -7071 (206) 433 -1833 Shelley M Kerslake Kenyon Disend PLLC 11 Front Street South Issaquah, WA 98027 -3820 Steve Lancaster Director of DCD City of Tukwila 6300 Southcenter Blvd., Ste. 100 Tukwila, WA 98188 -8548 Re: Truck Terminal -- 12677 East Marginal Way South, Tukwila, WA Request for Code Interpretation Dear Ms. Kerslake and Mr. Lancaster: ROBIE G. RUSSELL ATTORNEY AT LAW 76 South Main Street Seattle, Washington 98104 -2514 Facsimile (206) 621 -2104 (206) 621 -2102 September 13, 2004 RECEIV $EP 14 2004 COmm OPmE I have received Ms. Kerslake's letter dated August 27, 2004. Please note that my address is 76 South Main Street, not 315 Second Avenue South. As I indicated in my letter on Friday, I did not receive Ms. Kerslake's letter until September 10, 2004. We agree with your request that we put this matter at issue by requesting a code interpretation from the Director. This letter constitutes our formal request for a code interpretation on your assertion that the valid non - conforming use of the Becker property has been abandoned or terminated. However, we have a few additional concerns that need to be addressed. \9810\0011 \\tukwi la.ltr September 13, 2004 First, as you may know, we have an outstanding request for public records relating to this City of Tukwila September 13, 2004 Page 2 matter. We reasonably expected to be able to examine the records prior to having to take any action on this matter. Mr. Crittenden made his request on August 12, 2004. On August 16th, the City indicated that the records would be ready by September 2nd. That did not happen, and the City is already arguably in violation of RCW Chapter 42.17. As of the date of this letter, Mr. Crittenden still has not received a substantive response to his request. We must insist that the City take no further action on this matter, including issuing a code interpretation, until Mr. Crittenden's request for public records is fully resolved. Second, because it is undisputed that the property was used as a truck terminal prior to April 2002, the City has the burden to prove that such use was abandoned or discontinued. We have the right to submit information or argument for the Director's consideration, but we are not required to do so. However, we may submit additional information and intend to do so in the near future. We also have the right to wait for the Director's decision and submit responsive information and argument to the hearing examiner. Third, pursuant to TMC 18.96.020 we request that the code interpretation be in writing and that an orderly retrievable record be kept. Fourth, having reviewed TMC Chapter 18.104 it appears that there are no further administrative appeals from a decision of the hearing examiner. Therefore, any decision of the hearing examiner would be appealable to superior court under LUPA (RCW Chap. 36.70C). Please confirm that this is your understanding as well. RGR/mj cc: Edwin J. Becker William John Crittenden \9810 \00l I \tukwila.ltr September 13, 20C14 Thank you for your continued cooperation. August 30, 2004 Edgmon and Son Trucking LLC 12677 East Marginal Way South Tukwila, WA 98168 City of Tukwila Re: NOTICE OF DENIAL — 2004 Business License Location —12677 East Marginal Way South Dear Edgmon and Son Trucking LLC: The following findings have been made: 6200 Southcenter Boulevard • Tukwila, Washington 98188 This letter will serve as a Notice of Denial that your application for a 2004 Tukwila Business License has been denied. Pursuant to a review of your application by appropriate City staff, the license is denied under Tukwila Municipal Code (TMC) 5.04.110 Denial - Revocation; A.2. — The building, structure, equipment, operation or location of the business for which the license is not in compliance with the requirements of the TMC. 1. The property at 12677 East Marginal Way is zoned both Commercial Light/Industrial (C /LI) and Low Density Residential (LDR). 2. Truck terminals are a permitted use within the C/LI zoning classification (TMC 18.30). However, truck terminals are not a permitted use in the LDR zoning classification (TMC 18.10). 3. In the past, the portion of the property that was zoned LDR was vested non - conforming to operate as a truck terminal. City business license records show that the last business that was issued a business license to operate on the premise was Becker Trucking, Inc. However, Becker Trucking moved its Truck Terminal operation on April 17, 2002 to 6350 S. 143rd Street, Tukwila, Washington. 4. On April 26, 2004 Edgmon and Son Trucking, LLC submitted a business license application to operate a trucking operation at the subject address. The business license application noted that Edgmon and Son Trucking had been operating on the site since January 1, 2004. 5. The business license activity indicates that there was a gap in use of the subject property from April 17, 2002 to January 1, 2004. 6. Aerial photos of the site taken June of 2002 and September of 2002, clearly show that the property is not be used as a truck terminal. 7. TMC 18.70.040 notes, "If any such non - conforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, which ever occurs first, any subsequent use shall conform to the regulations specified by this title for the district in which such use is located." 8. In a letter dated, June 10, 2004, the City raised the issue regarding cessation of the non- conforming rights of the LDR portion of the property. The letter was sent to the applicant of the business license application and the owner of the property. Said letter asked for any documentation showing that the property has not lost its non - conforming rights. Phone: 206 - 433 -1800 • City Hall Fax: 206 - 433 -1833 • www.ci.tukwila.wa.us Steven M. Mullet, Mayor VIA CERTIFIED MAIL — Edgmon & Son Trucking LLC 7002 2410 0004 6341 4561 RETURN RECEIPT REQUESTSED VIA CERTIFIED MAIL — Becker Family Revocable Living Trust 7002 2410 0004 6341 4578 RETURN RECEIPT REQUESTSED 9. A response letter to the City's June 10, 2004 letter was received July 21, 2004. The letter failed to provide any documentation regarding use of the property. 10. On August 3, 2004, the City Attorney sent another letter asking for documentation to be provided regarding the non - conforming status of the property. The letter required that the information be provided ten days from the date of the letter. 11. As of 5:00PM, August 13, 2004 no documentation was provided. For the reasons stated above, your application for a 2004 City of Tukwila Business License is hereby denied. You are hereby advised that it is illegal to conduct business in the City of Tukwila without a current business license. You may appeal this Notice of Denial to the Hearing Examiner, provided the appeal is made in writing and filed with the City Clerk within ten (10) days from the date of receipt of the Notice of Denial. The appeal must specify that particular reason(s) upon which it is based. Failure to appeal within the specified time frame given shall constitute a waiver of all rights to any additional administrative hearing or determination on the matter (Tukwila Municipal Code 5.04.1109(B). Sincerely, bick. Jane E. Cantu, CMC City Clerk 14. Piale.s.A._ cc: 13. Miles, DCD 4 S. Kerslake — City Attorney K. Stetson — Code Enforcement Officer Roble G. Russell 315 Second Ave. So. — Suite 300 Seattle, WA 98104 Becker Family Revocable Living Trust — Certified 32820 — 20 Avenue South Federal Way, WA 98003 MICHAEL R. KENYON BRUCE L. DISEND SANDRA S. MEADOWCROFF SHELLEY M. KERSLAKE STEPHEN R. KING HEIDI L. BROSIUS Mr. Robie Russell 315 Second Avenue Seattle, Washington 98104 Re: 12677 E. Marginal Way South, Tukwila, Washington Dear Mr. Russell: Enclosed please find the notification of business license denial for the tenant on your client's property, issued by the City of Tukwila today. This case presents a unique circumstance in that the business license applicant is not the owner of the property — thus, an appeal of the business license denial does not address the underlying land use issue regarding the extinguishment of your client's non - conforming use rights for the property listed above. If your client disagrees with the determination of the Department of Community Development that his non - conforming rights have been abandoned, I suggest the following process to conclusively resolve the issue: Within 14 days of receipt of this letter your client will file a letter with the City requesting a code interpretation, pursuant to TMC 18.96.020. Pursuant to the Code, the Director of DCD will render a decision on the land use issue and that issue is appealable to the hearing examiner pursuant to TMC 18.90.010. We believe that this approach puts this issue in the proper procedural posture for conclusive resolution. If you have any questions, please do not hesitate to contact me at 425- 392- 7090. Thank you. Enclosure ENYON DISEND, PLLC MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027-3820 (425) 392 -7090 (206) 628-9059 FAX (425) 392 -7071 August 27, 2004 Very truly yours, \\FS I \ SYS\ APPS \civ \tukwila\Letter\LTR00147 - Russell - Business license denial.doc/MS/0827/04 SERVING WASHINGTON CITIES SINCE 1993 KERRI A. BERGLAND MINDY A. ROSrAMI SHANNON L. GARVIN KEVIN J. KAY LACEY L. MARTIN PETER B. BECKWITH August 9, 2004 Mr. Trey Henson The Henson Company, Inc 127 N 35 Street Seattle, WA 98103 RE: Your letter dated August 3, 2004 Dear Mr. Henson: City of Tukwila Department of Community Development Steve Lancaster, Director The City has reviewed your letter regarding use of the old Becker site at 12677 E. Marginal Way South in Tukwila, Washington. Your letter noted that the Henson Company is a masonry contractor who specializes in mid to large size commercial buildings. The Henson Company would use the property at 12677 E. Marginal Way as an office and storage yard. Items stored outside would include, scaffolding, wood, plank, mortar mixers, saws, pumps, forklifts and a few trucks. The property in question is zoned both Low Density Residential (LDR) and Commercial/Light Industrial (C/LI). Please see the enclosed photo that includes a zoning overlay showing the zoning locations. In the past, the portion of the property that is zoned LDR had a use on it that was vested legally non - conforming as a truck terminal. Tukwila Municipal Code (TMC) 18.06.590 defines a non - conforming use as, "...the use of land which does not conform to the use regulations of the district in which the use exists." Truck terminals are not a permitted use in the LDR zone. The truck terminal was allowed to operate on the portion zoned LDR provided it complied with the limitations set forth in TMC 18.70. The City is trying to resolve with the current tenant and the property owner if the non- conforming rights for the LDR portion of the property are still valid. Your proposed use of the property would not be the same as the historical use of the property as a truck terminal. While you do have trucks as part of your business, the trucks are incidental to your business and Henson Company is not engaged in "trucking operations ". Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 TMC 18.70.040 (5) notes: "If a change of use is proposed to a use determined to be nonconforming by application of provisions this title, the proposed new use must be a permitted use in its zone (m this case LDR) or a use approved under a Conditional Use or Unclassified Use Permit process...For purposes of implementing this section, a change of use constitutes a change from one Permitted, Conditional, or Unclassified Use category to another such use category as listed within the zoning code." A contractor storage yard is not a permitted use in the LDR zoning classification. Thus, Henson Company would not be permitted to use the portion of the property zoned LDR. A contractor storage yard would be a permitted use within the C/LI zoning district. Thus, your business, as outlined in your August 3, 2004 letter, would be permitted to operate in that portion zoned C/LI. A majority of the property is zoned C/LI and your business could still have sufficient space for storage of materials, while avoiding the portion of the property zoned LDR. If your business does choose to locate at the subject property the City would require that the LDR portion of the property be fenced off. If you have any questions regarding this letter, please call (206) 431 -3684 or send an email to bmiles ' ci.tukw Sincerely, ( Brandon J. Miles Assistant Planner cc. Jack Pace, Depu 'rector Shelley Kersl , City Attorney File (L04 -026, August Correspondence) Jack Pace City of Tukwila, Dept Community Development 6200 Southcenter Blvd Tukwila WA 98188 -2544 Jane E Cantu City of Tukwila, City Clerk 6200 Southcenter Blvd Tukwila WA 98188 -2544 Kathryn Stetson City of Tukwila, Office of Code Enforcement 6200 Southcenter Blvd Tukwila WA 98188 -2544 Re: Request for Public Records Property located at 12677 E. Marginal Way Dear Mr. Pace, Ms. Cantu and Ms. Stetson: WILLIAM JOHN CRITTEN N ATTORNEY AT LAW 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASHINGTON 98103 (206) 361 -5972 FAX: (206) 361 -5973 wjcrittenden @comcast.net August 9, 2004 This is a request for public records pursuant to RCW Chapter 42.17. Please provide my office with true and correct copies of the following public records in the possession of any or all of your agencies relating to the property located at 12677 E. Marginal Way in Tukwila (hereafter, the "Property "): (i) All records relating to any complaint, inquiry or other correspondence to or from any person in the last 10 years regarding the condition or use of the Property; (ii) All records relating to any investigation or code enforcement action in the last 10 years with respect to the Property; (iii) All records relating to the question of the applicable zoning of the property and whether there were or are nonconforming uses on the Property in the last 10 years; and (iv) All records relating to applications for, issuance of, or denials of business licenses relating to the Property in the last 10 years. For purposes of this request, "public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. RCW 42.17.020(36). For each record that you contend is exempt from public disclosure, please specifically identify the record by subject, title, author, custodian and date, and specifically state how the specific statutory exemption applies to the record as required by RCW 42.17.310(4). For each record that is only partially exempt from public disclosure, please provide a redacted copy of that record. Failure to comply with this request for public records may require you to pay attorney fees as well as mandatory penalties under RCW 42.17.340(4). See King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002). Please let me know if the cost of copying these records will exceed $100.00. You have five (5) days to respond to this request as required by RCW 42.17.320. Thank you for your attention to this matter. Very truly yours, Willem John Crittenden Page 2 of 2 MICHAEL R. KENYON BRUCE L. DISEND SANDRA S. MEADOWCROFr SHELLEY M. KERSLAKE STEPHEN R. KING HEIDI L. BROSIUS Robie G. Russell 315 Second Avenue S., Suite 300 Seattle, WA 98104 ENYON DISEND, PLLC THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027-3820 (425) 392 -7090 (206) 628 -9059 FAX (425) 392 -7071 August 3, 2004 RECEIVED COMMUNITY DEVELOPMENT KERRI A. BERGLAND MINDY A. RosrAMI SHANNON L. GARVIN KEVIN J. KAY LACEY L. MARTIN PETER B. BECKWITH Re: 12677 East Marginal Way South, Tukwila, Washington Dear Mr. Russell: I have been asked to respond to your July 19, 2004 correspondence as it relates to your client's use of the above - referenced property. As you know, the initial burden of proving the existence of a non - conforming use is on the land user making the assertion. 8A E. McQuillin, Municipal Corporations Section 25.188a (3 Edition 1986). However, once a non - conforming use is established, the burden shifts to the party claiming abandonment or discontinuance of the non - conforming use to provide such. The abandonment of a non - conforming use ordinarily depends upon a concurrence of two factors: (a) An intention to abandon; and (b) an overt act which carries the implication that the owner does not claim or retain any interest in the right to the non - conforming use. Van Sant v. City of Everett, 69 Wn. App. 641 (1993). When an ordinance establishes a set time beyond which a non - conforming use cannot remain unused without being forfeited, the burden shifts back to the owner to prove lack of intent to abandon. "If the ordinance references a time frame ... a rebuttable presumption arises that the land occupier has intended to abandon the non - conforming use" Miller v. City of Bainbridge Island, 111 Wn. App. 152 (2002) citing Skamania County v. Woodall, 104 Wn. App. 525, 540- 41 (2001); Andrew v. King County, 21 Wn. App. 566, 572 (1978) (the cessation of a use of the period prescribed by the zoning code is prima facie evidence of an intent to abandon the non- conforming use). Further, an area that the courts hold the property owner to very strict standards is in the area of change of use. See e.g. Miller v. City of Bainbridge Island, 111 Wn. App. 152 (2002). Non - conforming use rights are very specific and cannot be changed based on generalizations. For example, one who owns a concrete business cannot say that his use is "commercial' and thus any commercial business on the site is within the non - conforming right. Similarly, courts have G:I APPS ICIV\Tukwila\Letter\LTR00136 - Russell.doc/SAU08/03 /04 SERVING WASHINGTON CITIES SINCE 1993 Robie G. Russell August 3, 2004 Page 2 held that a non - conforming rooming house cannot be changed to a fraternity house. Further, a non - conforming elementary school cannot be changed to a trade school and retain its non- conforming status. Thus, when looking at changes in a non - conforming use it is important that the new use be specifically similar so as not to extinguish those rights. With this legal framework in mind, the facts available to the City upon which it is basing its determination are as follows: (1) City records indicate that Becker Transportation moved their truck terminal operation on April 17, 2002. (2) On April 26, 2004 the City received complaints from residents who called and provided comment to the City Council indicating that trucking operations at the site had begun again. A site visit by City staff found that Edgmon Trucking did not have a Tukwila business license; therefore, they were required to obtain one. (3) The City received a business license application from Edgmon Trucking on April 28, 2004. That application indicated that they had been operating at the site since January 1, 2004. (4) On June 10, 2004 both the applicant and the property owner were sent a letter regarding the City's preliminary determination that the property's non - conforming rights had been extinguished due to a lapse in operation as a truck terminal for more than six months. I understand that Mr. Miles has asked both you and representatives from Edgmon Trucking to provide any documentation that exists demonstrating that the timeline that the City has is in error. To date, no such documentation has been received. The City is certainly willing to review any evidence that you have indicating that the property's non - conforming rights have not been extinguished. However, it appears from the evidence that the City currently has that a rebuttable presumption has been established, demonstrating that your client's rights have been lost. If your client or your client's tenant wishes to submit any evidence rebutting that presumption, or if the tenant wishes to amend its application to not include that portion of the property not located in the LDR zone, please do so within ten days, after which time the City will issue its determination as to the business license for that property, now pending. Of course, there is an appeal of that decision to the City's hearing examiner, so that your client will be given all the due process that is required. The City looks forward to receiving any information that you may have regarding this issue. G:\ APPS \CIV\Tukwila\Letter\L,TR00136 - Russell.docISAL /08 /03/04 Robie G. Russell August 3, 2004 Page 3 cc: Jack Pace/ Brandon Miles Edgmon and Son Trucking G:\ APPS \CIV\Tukwila\Letter\LTR00136 - Russell.doc/SAU08 /03/04 Shelley M. K lake Very truly yours, KENYON DISEND, PLLC 08/03/2004 16:09 206 - 632 - 5725 The HENSON all Company, Inc. c ommercial masonry contractor August 3, 2004 City of Tukwila 6300 Southcenter Blvd. Suite 100 em "Tukwila, WA 98188 -2544 N ea Attn: Brandon Miles ,. Re: 12677 B. Marginal Way S., Tukwila, WA 98168 o Subject: The Henson Company N HENSON PAGE 01 Via fax (206) 431 -3665 Brandon, 0 r O. Per our conversation this morning, am interested in purchasing the above referenced property. You have requested a brief description of my company and what my intention is for the use of the property. m The name of my company is The Henson Company, Inc. We are masonry ° contractors who specialize primarily in mid to large sized commercial buildings. We are currently located at 127 North 35 Street in the Fremont District of Seattle. Our business has been in this location for over 50 years, but due to th.e increased density of Fremont as well as our company growth, we are unable to stay in our current location and are looking to relocate to a larger piece of property. ea vs There is currently an option on my property to purchase. The buyer had • extensive studies on our land prior to entering the option. After fifty years of running our business at the same location, our ground came up clean. We own a considerable amount of equipment such as scaffolding, wood plank, mortar mixers, saws, pumps, a few forklifts and a few trucks. Our = intent for the referenced property is to move our office and our storage yard to that location. The bulk of the land use would be for storage of scaffolding which takes up most of our yard space. N r 08/03/2004 16:09 206 - 632 -5725 HENSON Should you have any further question or comments please don't hesitate to call me (206) 632-5720. if you would like to pay a visit to our current office and yard I would be happy to meet you at anytime and show you around. Very Truly Yours, rey Henson cc: Michael Swanson — via fax (253) 838 -0760 PAGE 02 Aug. 2. 2004 2 :13PM No.4122 P. 1/2' To:ge`ndu07 Moe FROM: h 7 # OF PAGES 2- FAX COVER SHEET EbGMON & SON TRUCKING, LLC 12677 EAST MARGINAL WAY, SO. 7UKWILA, WA 98168 PHONE (706) 658 -1057 FAX (206) 658 -1058 C OMMENT S : , THANK YOU. Aug. 2. 2004 2:13PM No.4122 P. 2/2 To Whom It May Concern Edwin J. Becker is the owner of this property. STATEMENT OF TRUCKING USE Re: Continuous Trucking Use Of Property At 12677 East Marginal Way South, Tukwila, Washington Becker Trucking, inc. paid rent for use of this property thru September, 2002, and for one day in October, 2002. Becker Transfer, Inc. paid rent for use of this property September, 2002 thru January, 2003. Edgmon and Son Trucking paid rent for use of this property February, 2003 thru July, 2004, c:\ ac tg & tax tiles 1 ed becker 1 eb strut or tricking use - 7- 30.04.E is Clayton M. Betz, Accountant For Edwin J. Becker 253- 945 -2053 Date � D -- oir Becker r Trucking, Inc, used this j property as part of their trucking busi�; f r the time • = riod above. clan Becker, President Becker Trucking, Jnc. Date Becker T nsfer, Inc. used this props a s part of their trucking bu for e period a e, /oi fin tic' -. S i'd e {,Pr5 per Pat Becker, President, Becker Transfer, Inc. a S C r.. / e4 S pi-4W— pcc y 4 d 76 Date 7 / 9 ? y ) Licensed in Washington and Idaho Our Reference No. 9810/0001 VIA FACSIMILE (206) 433 -1833 Brandon J. Miles, Asst. Planner City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 Dear Mr. Miles: \9810 \0001 \tukwila.ltr July 19, 2004 ROBIE G. RUSSELL ATTORNEY AT LAW 315 Second Avenue South, Suite 300 Seattle, Washington 98104 Facsimile (206) 622 -5520 (206) 622-7050 July 19, 2004 Re: Truck Terminal -- 12677 East Marginal Way South, Tukwila, WA I represent the Becker Family Revocalble Living Trust ( "Trust "), owner of the truck terminal located at 12677 East Marginal Way South, Tukwila, Washington ("Property"). I have been asked to respond to your letter of June 10, 2004 in which you assert that the use of the Property as a truck terminal, a use which has been existent and continuous for thirty (30) years, has somehow been extinguished. It is quite apparent that the City of Tukwila ( "City ") is reacting to the continued and well - orchestrated "complaints" of several vocal neighbors who moved to an industrial area and now wish to change it by driving away all the businesses that have lawfully operated there for many years. It is also quite apparent that the City has failed to provide notice to the owner of the Property or afford them any due process in regard to this matter. Finally, it is apparent from the content of your letter and our subsequent telephone conversation that the City has made up its mind on this matter, albeit without notice, hearing, or any other form of due process. My first letter to the City regarding the Property, dated January 13, 2000, was written in response to "anonymous" complaints received by the City regarding business operations in the Brandon J. Miles, Asst. Planner July 19, 2004 Page 2 general Marginal Way area, specifically noise and truck parking. As I informed the City Administrator at the time, the operation of the truck terminal was in full compliance with "all applicable rules, regulations, and ordinances which apply to its operations." I invited further inquiry regarding the matter but none was forthcoming. The next letter from the City that I am aware of, was dated July 17, 2003, and dealt with the renewal of Becker Truckinb s business license for the Property. The letter alleged that the Property was no longer being used as a truck terminal since Becker Trucking had leased an additional facility at 6350 South 143rd Street, Tukwila, Washington, in August, 2002. Oddly, the letter was dated some four and one -half months after the City had been notified that the Property was being operated as a truck terminal by Edgmon and Son Trucking. Becker Trucking informed the City that it continued to operate a trucking business at the Property. Furthermore, another trucking business, Becker Transfer (nonaffiliated) also operated from the Property during that time period. Early in 2003, the Property was leased to Edgmon and Son Trucking, and they have continued the trucking terminal operations at the Property to the present day. The next letter from the City was dated December 15, 2003, and sought to deny Becker Trucking a business license to operate at the Property. It purported to make findings and conclusions, but unfortunately did not afford the owner of the Property any due process since the owner had never been notified of the City's efforts, nor had any hearing ever been held. I spoke with Shelley M. Kerslake regarding these matters on January 5, 2004, and she informed the City Department of Community Development of these facts via letter dated January 9, 2004. Then, came your letter of June 10, 2004, addressed to Edgmon and Son Trucking, with a copy to the Becker Family Revocable Living Trust, the owner of the Property. Your letter again alleges that Becker Trucking no longer operates on the Property and as a result, Edgmon and Sons Trucking could not have a 2004 business license (although they have been in operation on the Property since the beginning of 2003). After my conversation with you of July 6, 2004, it became quite evident to me that you had become an advocate for the same people who had been making noise complaints about the area since 2000. I direct your attention to the case of Van Sant v. Everett, 69 Wn. App. 641, 849 P.2d 1276 (1993), which provides a good discussion of the issues associated with this type of case and the applicable law. There, the City of Everett attempted to extinguish a nonconforming use of residential property through the hearing process (an important aspect of due process which is clearly absent here). In remanding the case for reconsideration the court stated that: \98 10 \0001 \tukw ila.ltr July 19, 2004 Brandon J. Miles, Asst. Planner July 19, 2004 Page 3 Because Van Sant had established the prior existence of a nonconforming commercial use, the burden shifted to the City to prove abandonment or discontinuance of that nonconforming use. The City should have been required to show (1) intent and (2) an overt act or failure to act which demonstrates that the owner does not claim or retain an interest in the right to the nonconforming use. The hearing examiner's requirement that Van Sant prove that the nonconforming commercial use had continued and had not been abandoned indicates that this burden was improperly placed on the owner of the vested property interest. The owner of the "vested property interest" is the family trust of Edwin L. Becker. He has no ownership interest in Becker Trucking, Becker Transfer, or Edgmon and Son Trucking. Thus, the first notice the Trust received regarding this matter was your letter of June 10, 2004. In regard to the alleged "abandonment," the Trust has no intention of abandoning the use, nor has it ever evidenced any such intent. Furthermore, the Property has been operated continuously as a truck terminal for approximately thirty (30) years with little or no interruption. Your mistaken reliance on the failure of the City to issue a business license is not only contrary to established law, Van Sant v. Everett, supra, it is also contrary to the facts. Edgmon and Son Trucking applied for a business license from the City when they occupied the Property in February, 2003. However, for unknown reasons, they were told to continue operating under their existing 2003 license and to apply for a license at the Property in 2004, which they have done. Becker Trucking operated continuously at the Property, and at its other facilities, until Edgmon and Sons took over. Thus, there has been no interruption in use. In closing, let me again reiterate that the owner of the Property, The Becker Family Trust, has never expressed any intent to abandon the existing use of the Property, nor has it done so. If the one or two residents of the industrial area want to extinguish the existing use, the can easily do so by purchasing the Property. RGR/mj \98 10 \0001 \tukw ila.ltr July 19, 2004 Please feel free to call if we may answer any questions. June 10, 2004 City of Tukwila 6200 Southcenter Boulevard • Tukwila, Washington 98188 Via US Mail. Standard and Certified Mr. Simael T. Edgmon CC. Becker Family Revocable Living Trust Edgmon and Son Trucking, LLC 32820 20 Avenue S. 12677 East Marginal Way S Federal Way, WA 98003 Tukwila, WA 98168 Dear Mr. Edgmon: The City of Tukwila's Department of Community Development has reviewed your 2004 business license application to operate a trucking operation at 12677 East Marginal Way South. The site in question is zoned Commercial/Light Industrial and Low Density Residential. A truck terminal is a permitted use in the Commercial/Light Industrial zone, but is not permitted in the Low Density Residential. Please see the attached aerial photo which shows the applicable zoning categories the exist on the property. The previous trucking operation at the site, Becker Transportation, was permitted to operate on the site as a non - conforming use. A non - conforming use means the use of land which does not conform to the use regulations of the district in which the use exists (Tukwila Municipal Code (TMC) 18.06.590). TMC 18.70.040 (3) notes, "If any such non - conforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three -year period time period, whichever occurs first, any subsequent use shall conform to the regulations specified by this title for the district in which such use is located ". According to City records, Becker moved their operation to 6350 South 143` Street and stopped using the East Marginal Site as a truck terminal on April 17, 2002. On your business license application it was noted that your company began operating at the site on January 1, 2004, 21 months after Becker ceased operating at the site. Based upon the known facts it appears that non - conforming rights for the property hav been lost. Thus, your company is not permitted to operate a truck terminal on the section of the property that is zoned LDR. • • Phone: (206) 433 -1800 • City Hall Fay (206) 433 -1833 Steven M Mullet, Mayor If you can, please provide any documentation that the property has not lost its non- conforming rights. Any documentation regarding the non - conforming status needs to be submitted to the City 14 -days from the date of this letter. If you cannot produce any documents showing that property remains vested non- conforming, the pending business license application will have to be denied. Thus you will either have to vacate the entire site or submit a new business license application to operate on that portion of the property that is zoned C/LI If you have any questions, please call (206) 431 -3684 or send an email to bmiles ci.tukwil. wa.us. Sincerely, Br don J. Miles Assistant Planner cc. Jack Pace, Deputy Director, DCD Shelley Kerslake, City Attorney Jane Cantu, City Clerk Kathy Stetson, Code Enforcement Officer File (L04 -026) ■ ■ NDER: COMPLETE THIS SECTION Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. Article Addressed to: Becker Family Revocable Trust 32820 20 Ave. So. Federal Way, WA 98003 . Article Number (Transfer from service label) 'S Form 3811, August 2001 PS' Postal Serv(cev. _ CERTIFIED`MAILrr RECEIP (Domestic Mail Only; No Insurance Coverage Provided) ',For delivery information visit our website at www.usps.coM' - t USE r 3 3 Return Reclept Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) PS Form 380 Postage Certified Fee C A ✓ u �I U Total Postage &Fees $ 1. A. Li,v iON 14 2004' COMMUNi DEVELO rvice Type Certified Mail J ❑ Registered ❑ Insured Mail Domestic Return Receipt postmark Here • serr ° Becker Fart_ily Revocable Living street. Awt: NC Trust orpoBox Na 32820 20 Ave. So. city, state, Federal Way, WA 98003 COMPLETE THIS SECTION ON DELIVERY Agent ❑ Addressee Receve id by ( Printed Name C. Date of Delivery 4y 4/ f /`g tp. Is del very address different from item 1? ❑ Yes R E C E IV E fD'Es, enter delivery address below: No 4. Restricted Delivery? (Extra Fee) 7002 2410 0004 6341 3359 ❑ Express Mail ❑ Return Receipt for Merchandise ❑ C.O.D. ❑ Yes SENDER: COMPLETE THIS SECTION • Compete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Mr. Simael T. Edgmon Edgmon and Son Trucking LLC 12677 East Marginal Way So. Tukwila, WA 98168 2. Article Number (Transfer from service label) 102595-02-M-1035 PS Form 3811, August 2001 -u m m a m 0 0 a ru ru O N Postage CeNried Fee (Endorsement ` tt Fee Restricted Delivery Fee (Endorsement Required) RE t 'JUN Domestic Retum Receipt Total Postage & Fees Mr Simael T. Edgmon � tree4, No. • Edgmon and Son Trucking LLC or PO Box No. 12677 East Marginal Way So. ci ` Y ' "mow' ZIP" Tukwila, WA 98168 COMPLETE THIS SECTION ON DELIVERY 7 A. =1gn- , �., ❑ Agent G 4 / :%j e:.p-" ❑ Add,- ee B. received by D. Is delivery address different from Emu delivery address 15 100 E . T ype `Certified Mail ❑� Registered • ❑ insured Mail 4. Restricted Delivery? (Extra Fee) U.S.. Postal Service ,CERTIFIED MAILTM ; RECEIPT ' (Domestic Mail Only; No Insura Covera Pro vided Name) C. Date 7002 2410 0004 6341 3366 'For `delivery : information visit our.website at www.usps corns FiC 4L USE. ❑Y4 livery ❑ Express Mail ❑ Return Receipt for Merchandise ❑ C.O.D. ❑ Yes 102595.02 -M -10S Service ID Account No. Name 05/25/2004 04:05:36 PM King County Water District #125 Usage Report For 10110 -1 Service Address Route Service Tran Date Measure Actual Usage Adj Usage Billed Usage Charges 10110 10110 - EDWIN BECKER 12677 E MARGINAL WAYS 055 5/8" METER WATER 05/16/2001 Cubic 13. 0. 13. 0.00 5/8" METER WATER 07/19/2001 Cubic 14. 0. 14. 0.00 5/8" METER WATER 09/19/2001 Cubic 17. 0. 17. 0.00 5/8" METER WATER 11/16/2001 Cubic 8. 0. 8. 0.00 5/8" METER WATER 01/16/2002 Cubic 10. 0. 10. 0.00 5/8" METER WATER 03/19/2002 Cubic I I. 0. 11. 0.00 5/8" METER WATER 05/15/2002 Cubic 6. 0. 6. 0.00 5/8" METER WATER 07/17/2002 Cubic 3. 0. 3. 0.00 5/8" METER WATER 09/18/2002 Cubic 1. 0. 1. 0.00 5/8" METER WATER 11/19/2002 Cubic 0. 0. 0. 0.00 5/8" METER WATER 01/15/2003 Cubic 0. 0. 0. 0.00 5/8" METER WATER 03/17/2003 Cubic 14. 0. 14. 0.00 1" METER WATER 05/13/2003 Cubic 15. 0. 15. 51.25 I" METER WATER 07/18/2003 Cubic 15. 0. 15. 56.50 1" METER WATER 09/15/2003 Cubic 18. 0. 18. 62.80 1" METER WATER 11/19/2003 Cubic 9. 0. 9. 40.75 1" METER WATER 01/20/2004 Cubic 17. 0. 17. 54.75 1" METER WATER 03/20/2004 Cubic 17. 0. 17. 54.75 1" METER WATER 05/20/2004 Cubic 20. 0. 20. 60.00 NO SIZE OCCUPANT 05/13/2003 Cubic 0. 0. 0. 1.00 NO SIZE OCCUPANT 07/18/2003 Cubic 0. 0. 0. 1.00 NO SIZE OCCUPANT 09/15/2003 Cubic 0. 0. 0. 1.00 NO SIZE OCCUPANT 11/19/2003 Cubic 0. 0. 0. 1.00 NO SIZE OCCUPANT 01/20/2004 Cubic 0. 0. 0. 1.00 NO SIZE OCCUPANT 03/20/2004 Cubic 0. 0. 0. 1.00 NO SIZE OCCUPANT 05/20/2004 Cubic 0 0. 0. 1.00 Page Number: 1 Service ID Account No. 10100 10 1 1/2" METER 1 1/2" METER 1 1/2" METER 1 1/2" METER 1 1/2" METER 1 1/2" METER 1 1/2" METER 5/8" METER 5/8" METER 5/8" METER 5/8" METER 5/8" METER 5/8" METER 5/8" METER 100 -1 05/25/2004 04:04:52 PM Service WATER WATER WATER WATER WATER WATER WATER OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT OCCUPANT Name Tran Date EDWIN BECKER 05/13/2003 07/18/2003 09/15/2003 11/19/2003 01/20/2004 03/20/2004 05/20/2004 05/13 /2003 07/18 /2003 09/15/2003 11/19 /2003 01/20/2004 03/20 /2004 05 /20/2004 King County Water District #125 Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic Cubic For 10100 -1 0. 1. 2. 2. 0. 0. 0. 0. 0. 0. 0. Usage Report Service Address Measure Actual Usage Adj Usage 12677 E MARGINAL WAY S 0. 0. 0. 0. 0. 0. 0. 0. 0. o. 0. 0. 0. 0. 0. 0. o. s" 0 $ 1.2 Ili Gn Z Ike a 10 Billed Usage Charges 055 0. 0. 0. 0. 2. 2. 0. 0. 0. 0. 0. 0. 0. 37.00 37.00 37.00 37.00 38.75 40.50 40.50 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Page Number: 1 Slow toor (1) Service Information BECKER, EDWIN - 12677 E MARGINAL WAY S SEATTLE WA 9816 010100 1 - 05508550 38.00 Suffix (73) WAY S (74) .4 i a ®c i,. : ; ` (75) Lot Numb: HIS (76) Tract No: Meter Information (1- 4)House No Pre Street Name Addr 12677 E MARGINAL ' -' Apart# : ,Zip +4,CR: SEATTLE WA 98168 (9) Service Type: S 11) Dwell Units : 1 (12) Sub Read Dt Meter One Meter Two Cur 18: 01/15/03 23: 11/19/02 28: 09/18/02 33: 07/17/02 38: 05/15/02 43: 05/15/02 48: 03/19/02 53: 01/16/02 58: 11/16/01 63: 09/19/01 68: 07/19/01 13: 05/16/01 18: 12/10/00 23: 01/16/01 28: 11/13/00 : 09/18/00 30: 07/14/00 43: 05/17/00 48: 03/14/00 53: 01/18/00 58: 11/17/99 63: 09/17/99 68: 07/16/99 843 843 843 843 843 843 843 843 843 843 843 (1) Service Information BECKER, 010100 (1- 4)House No Pre Street Name Addr 12677 E MARGINAL (5) Apart# : ; Zip +4,CR: SEATTLE WA 98168 ti) Service Type: S SPRINKLERS : 000 (77)Numb: : S (80) Conv-r. n: (81) O (82) Make 0 (83) Location: 0 (84) Comments: O (85) Digits (86) 2nd: O f (87)Installed: 0 (88) Pr Numb : 0 (89) Pr Cons : O (90)Pull Date: 0 (91)Area: T TUKWILA 0 (93)Area: 0 (95)Share: Vote: Consumptn Est (79) Type EDWIN - 12677 E MARGINAL WAY S SEATTLE WA. 9816 1 - 05508550 38.00 Suffix (73) Route : 055 WAY S (74) Sequence: 08550 (75) Lot Numb: HIS (76) Tract No: Meter Information 11) Dwell Units : 1 (12) Sub: 000 (77)Numb: Read Dt Meter One Meter Two Consumptn Est (79) Type : S Cur (80) Conversn: 1 843 0 (81) Size : 1.5 843 0 (82) Make . 843 0 (83) Location: 843 0 (84) Comments: 843 3 (85) Digits . 840 0 (87)Installed: 840 0 (88) Pr Numb .: 840 0 (89) Pr Cons : 840 0 (90)Pull Date: 840 7 (91)Area: T TUKWILA 833 2 (93)Area: 831 1 (95)Share: Vote: (86) 2nd: (1) Service Information .. CKER, EDWIN - 12677 E MARL,, JAL WAY S SEATTLE, WA 981 010110 1 - 05508600 5 +50 (1- 4)House No Pre Addr 12677 /c1 Apart# : Zip +4,CR: SEATTLE, (9) Service Type: C 11) Dwell Units : Read Dt Meter One Meter Cur 18: 23: 28: 33: 38: 43: 48: 53: 58: 63: 68: 01 15 03 11/19/02 09/18/02 07/17/02 05/15/02 03/19/02 01/16/02 11/16/01 09/19/01 07/19/01 05/16/01 (1) Service Information (1- 4)House No Pre Street Name Addr 12677 E MARGINAL (5) Apart# : )Zip +4,CR: SEATTLE, WA 98188 %.) Service Type: C COMMERCIAL 11) Dwell Units : 1 (12) Sub: 000 Read Dt Meter One Meter Two Cons Cur 13: 12/10/00 18: 01/16/01 23: 11/13/00 28: 09/18/00 07/14/00 3o: 05/17/00 43: 03/14/00 48: 01/18/00 53: 11/17/99 58: 09/17/99 63: 07/16/99 68: 05/18/99 Street Name Suffix E MARGINAL WAY S 6674 6674 6674 6673 6670 6664 6653 6643 6635 6618 6604 6591 6576 6564 6553 6539 6523 6507 6493 6478 6459 6438 6409 WA 98188 (73) (74) (75) of Numb: (76) Tract No: Meter Information 00 (77)Numb: Two Consumptn Est (79) Type : S (80) Conversn: 1 (81) (82) Make 0 (83) Location: NEXT HYD ON 128 1 (84) Comments: 3 (85) Digits (86) 2nd: 6 (87)Installed: 11 (88) Pr Numb : 10 (89) Pr Cons : 8 (90)Pull Date: 17 (91)Area: T TUKWILA 14 (93)Area: 13 (95)Share: Vote: BECKER, EDWIN - 12677 E MARGINAL WAY S SEATTLE, WA 981 010110 1 - 05508600 50.50 Suffix (73) Route : 055 WAY S (74) Sequence: 08600 (75) Lot Numb: HIS (76) Tract No: Meter Information (77)Numb: umptn Est (79) Type (80) Conversn: S HIS 1 15 (81) Size : 1 12 (82) Make 11 (83) Location: NEXT HYD ON 128 14 (84) Comments: 16 (85) Digits 16 (87)Installed. 14 (88) Pr Numb : 15 (89) Pr Cons : 1 9 (90)Pull Date: 21 (91)Area: T TUKWILA 29 (93)Area: 25 (95)Share: (86) 2nd: Vote: May 24, 2004 Brandon J. Miles Assistant Planner Cizy of Tukwila Simeai T. Edgmon Edgmon and Son Trucking LLC 12677 East Marginal Way S. Tukwila, WA 98168 RE: Business License Application Please respond to these questions in writing by June 1, 2004. Failure to respond will likely result in denial of your business license application. If you have any questions, please call (206) 431 -3684 or send an email to bmiles@ci.tukwila.wa.us. cc. City Clerk's Office File L04 -026 RECEIV 'JUL 2 6 ?004 IX TY Steven /Vl. Mullet, Mayor Department of Community Development Steve Lancaster, Director The Department of Community Development is currently reviewing your 2004 City of Tukwila Business License Application. The Department requires that you submit additional information regarding the proposed use. 1. The business license application asked if there are any flammable, hazardous, or biohazardous materials on site. You have answered that none will be on site. Concerned residents in the area have called the City reporting that large amounts of Ammonium Nitrate are brought and are temporary stored on the site. Is this correct? 2. On the business license application you noted that your business is different from the previous use on the property. Please clarify how your business is different from the previous use on the property? 630a Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 If you can, please provide any documentation that the property has not lost its non- conforming rights. Any documentation regarding the non - conforming status needs to be submitted to the City 14 -days from the date of this letter. If you cannot produce any documents showing that property remains vested non- conforming, the pending business license application will have to be denied. Thus you will either have to vacate the entire site or submit a new business license application to operate on that portion of the property that is zoned C/LI If you have any questions, please call (206) 431 -3684 or send an email to bmiles@ci.tukwila.wa.us. Sincerely, Brandon J. Miles Assistant Planner cc. Jack Pace, Deputy Director, DCD Shelley Kerslake, city Jane Cantu, City Cl Kathy Stetson, C Enforcement Officer File (L04 -026) May 21, 2004 City of Tukwila File #L04 -026 Att: Brandon J. Miles Assistant Planner Edgmon & Son Trucking, LLC 12677 East Marginal Way South Tukwila, WA 98168 -2562 (206) 658 -1057 RE: Response to Business License Application Sincerely, Simeal T Edgmon Owner Xi/ Bobby Own Edgmon and Son Trucking moves one container a month from Deer Park, WA to T -18 Seattle, containing 1.5 Blasting Power. If the driver arrives late in the night, the driver will park in Edgmon and Son Trucking's yard, and turns the container in the following day. When such a container is parked in the yard, the Tukwila Fire Department is contacted and made aware of the container immediately. We are a company that transports containers from T -5, T -18, T-46 and to their customers. Our company is a trucking company, the previous owner's were the same type of business, but it is not known what type of containers they transported or to what customers. May 18, 2004 Simeai T. Edgmon Ps Form 3811, August 2001 Edgmon and Son Truckin ...... 12677 East Marginal Way S. Tukwila, WA 98168 RE: Business License Application The Department of Community Development is currently reviewing your 2004 City of Tukwila Business License Application. The Department requires that you submit additional information regarding the proposed use. Sincerely, Brandon J. Miles Assistant Planner cc. City Clerk's Office File L04 -026 SQ SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. C 0 ■ Print your name and address on the reverse so that we can return the card to you. e Attach this card to the back of the mailpiece, Dr on the front if space permits. Departme Article Addressed to: Simeai T. Edgmon Edgmon and Son Trucking, LLC 12677 East Marginal Way So. Tukwila, WA 98168 2. Article Number (Transfer from service label) COMPLETE THIS SECTION ON DELIVERY ature D Is delivery add ❑ Agent ❑ Addressee C. Date eiivery VGt MAY 2 8 2004 nnMMI NITY VeMANT Domestic Return Receipt Certified Mail ❑ Registered ❑ Insured Mail different from i D ry address 4. Restricted Delivery? (Extra Fee) 7002 2410 0004 6341 3342 1. The business license application asked if there are any flammable, hazardous, or biohazardous materials on site. You have answered that none will be on site. Concerned residents in the area have called the City reporting that large amounts of Ammonium Nitrate are brought and are temporary stored on the site. Is this correct? 2. On the business license application you noted that your business is different from the previous use on the property. Please clarify how your business is different from the previous use on the property? Please respond to these questions in writing by May 27, 2004. If you have any questions, please call (206) 431 -3684 or send an email to bmiles@ci.tukwila.wa.us. Yes ❑ No ❑ Express Mail ❑ Return Receipt for Merchandise ❑ C.O.D. ❑ Yes 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 102595 -02 -M -102 CONFIDENTIAL ATTORNEY CLIENT PRIVILEGED CITY OF TUKWILA MEMORANDUM 1D: Jack Pace, Deputy Director, Department Of Community Development FROM: Shelley M. Kerslake, City Attorney DATE: May 12, 2004 RE: Abandonment of Nonconforming Rights C: \WINDOWS\TEMP\ME000047 - Nonconforming Use.docfr /05/12/04 C: \WINDOWSTEMP\ME000047 - Nonconforming Use.doclr /05/12/04 -2- C: \WINDOWS\TEMP\ME000047 - Nonconforming Use.doc/T /05/12/04 -3- May 10, 2004 Mr. Russ Austin Water District #125 2849 S. 150 St. SeaTac, WA•98188 RE: Request for Information Dear Mr. Austin: The Department of Community Development is researching the use history of 12677 E. Marginal Way South, Tukwila, Washington 98168 -2562. A portion of the property is currently zoned Low Density Residential and the Department is attempting to determine if the property has any non - conforming rights. An important element of non - conforming rights is whether the property was actually being used during a specific period of time. Utility records have proven very useful in determining if a property was actually being occupied. If your agency could provide monthly water usage from January 2001 to April 2004 it would prove very useful in the Department's research. If you have any questions, please feel free to contact me at (206) 431 -3684 or send an email to bmiles ' ci.tukwila.wa.us. Sincerely, tr::;n J. iles Assistant Planner cc. File (L04 -026) City of Tukwila Department of Community Development Steve Lancaster, Director Steven M. Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 April 26, 2004 City of Tukwila 6200 Southcenter Boulevard • Tukwila, Washington 98188 Steven M. Mullet, Mayor Dear Business Operator: As per your conversation with staff from the City's Planning Department today, we are forwarding an application for a City of Tukwila business license for your location at 12677 E. Marginal Way S. The Tukwila Municipal Code requires that you apply to the City for a license to conduct business prior to the opening date. The Code also provides that a late fee be charged for failure to acquire a license within thirty days of commencing business. Enclosed is a business license application. Please complete it and send it back to us with the appropriate fee. Your application is due in our office by May 21, 2004 to avoid the penalty. We would appreciate your prompt attention to this matter. Sincerely yours, Barbara J. Saxton City Clerk's Office cc: Brandon Miles, Assistant Planner Kathy Stetson, Code Enforcement Officer Enclosure Phone: 206 - 433 -1800 • City Hall Fax: 206 - 433 -1833 • www.ci.tukwila.wa.us 04/30/2004 Customer Information ACCT. NO : 163154 13ECKER EDWIN I 32820 20TH AVE S STE 53 FEDERAL WAY, WA 98003 -9475 Date Type 08/27/1998 Payment 09/22/1998 Payment 10/30/1998 Payment 11/30/1998 Adjustment 11/30/1998 Payment 12/01 /1998 Charge 12/31/1998 Payment 01/04/1999 Charge 01/14 /1999 Payment 02/01/1999 Adjustment 02/02/1999 Charge 02/03/1999 Penalty 02/2211999 Paymcal 02128/1999 Adjustment 02/28/1999 Payment 03/01/1999 Charge 03/31/1999 Payment 04/01/1999 Charge 04/09/1999 Payment 05/03/1999 Charge 05/10/1999 Payment 06/01/1999 Charge 06/16/1999 Payment 07/01/1999 Charge 07/12/1999 Payment 08/02/1999 Charge 08/23/1999 Payment 09/01/1999 Charge 0924/1999 Payment 10/01/1999 Charge 10/25/1999 Payment 11/01/1999 Charge 11/24/1999 Payment 12/01 /1999 Charge 12/22/1999 Payment 01/03/2000 Charge 01/25/2000 Payment 02/94/2000 Charge 02/25/2000 Payment 03/02/2000 Charge 03/27/2000 Payment 04/04/2000 Charge 04/2712000 Payment 05/02/2000 Charge 05/19/2000 Payment 04/30/2004 01:58:10 13:00 URL WE SEWER DISTRICT 4 4313665 Read Date 12/01/1998 01/04/1999 02/02/1999 03/01/1999 04/01/1999 05/03/1999 06/01/1999 07/01/1999 08/02/1999 09101/1999 10/01/1999 11/01/1999 12/01/1999 01/03/2000 01/31/2(100 03/01 /2000 04/04/2000 05/01/2000 F = First 13i11 1.. = Final Bill Val Vue Sewer District Customer Transaction Summary Rending Location information SERVICE IP : 163154 12677 F. MARGINAL. WAY S SEATTLE. WA 98168 -2362 Transaction I (sage Prior Balance Amount Balance 0.00 -52.91 -52.91 -52.91 -52.91 - 105.82 - 105.82 -52.91 - 158.73 - 158.73 211.64 52.91 52.91 -52.91 0.00 2400 0.00 52.91 52.91 52.9) -52.91 0.00 2400 0.00 52.91 52.91 52.91 -52.91 0.00 0.00 78.72 78.72 2400 78.72 78.72 157.44 157.44 7.87 165.31 165.31 -78.72 86.59 86.59 -78.72 7.87 7.87 -7.87 0.00 2400 0.00 78.72 78.72 78.72 -78,72 0.00 2400 0.00 78.72 78.72 78.72 -78.72 0.00 2400 0.00 78.72 78.72 78.72 -78.72 0.00 2400 0.00 78.72 78.72 76.72 -78.72 0.00 2400 0.00 78,71 78.72 78.72 -78.72 0.00 2400 0.00 78.72 78.72 78.72 -78.72 0.00 2400 0.00 78.72 78.72 78.72 -78.72 0.00 2400 0.00 78.72 78.72 78.72 - 78.72 0.00 2400 0.00 78.72 78.72 78.72 -78.72 0.00 2400 0.00 78.72 78.72 78.72 -78.72 0.9 2400 0.00 78.72 78.72 :2.72 - 78.72 0.00 12 1200 0.00 40.80 40.80 40.80 -40.80 0.00 12 1200 0.00 40.80 40.80 40.80 -40.80 0.00 12 1200 0.00 40.80 40.80 40.80 -40.80 0.00 12 1200 0,00 40.80 40.80 40.80 - 40.60 0.00 NO 1 +n r P01 t (zc ( 4.) `13 -3( Q U • Unpeelea Transaction Page 1 04/30/2004 13:00 UAL UUE 'JER DISTRICT 4 4313665 Customer Information ACCT. NO : 163154 RECKER EDWIN 1 32820 20Th AVE S STE 53 FEDERAL. WAY, WA 98003-9475 Date 06/02/2000 06/2612000 07/02/2000 07/25/2000 08/0212000 08/21/2000 09/02/2000 09/26/2000 10/02/2000 1 0/308000 1 1/02/2000 11/27/2000 12/022000 12/27/2000 01/022001 01/24 /2001 02/02/2001 02/232001 03/021200) 04/01 /2001 04/02/2001 04/00/200) 04 /27/2001 05/02/2001 06/01/2001 06/02/2001 06 /08/2001 06/11/2001 07/0212001 08/022001 0$!02!200 08/03/2001 08/28/2001 09102/2001 09/21/2001 10/02/2001 10/29/2001 11/02/2001 1112112001 12/02/2001 12/31/2001 01/02/2002 01 /23/2002 02/02/2002 02/25/2007 Type Read Date Charge 06/01/2000 Payment Charge 07/01/7000 payment Charge 08/01/2000 Payment Charge 094012000 Payment Charge 10/01/2000 Payment Charge 11/01/2000 Payment Charge 12!01/2000 Payment Charge 01/01 /2001 Payment Charge 02/012001 Paymem Charge 03/01/2001 Penalty Charge 04/01/2001 Payment Payment Charge 05/02/2001 Penalty Charge 06/01/2001 Payment Payment Charge 07/01/2001 Charge 08/01/2001 Penalty Payment Payment Charge Payment Charge Payment Charge Payment Charge Payment Charge Payment Cltorgc Payment 09/01 /2001 10/01 /2001 11/012001 12/01/2001 01/012002 02/01/2002 04/30/2004 01:58:10 F = First Bill L = Final Bill Val Vue Sewer District Customer Transaction Summary Reading 12 Location Information SERVICE ID : 163154 12677 E MARGINAL- WAY S SEATTLE, WA 98168 -2562 Usage Prior Balance 12 1200 0.00 40.80 12 1200 0.00 40.80 12 1200 0.00 40.80 12 1200 0,00 40.80 12 1200 0.00 40.80 12 1200 0.00 40.80 1200 0.00 40.80 12 1200 0.00 40,80 7 750 0.00 25.75 ? 750 0.00 25.75 7 750 29.33 54.08 28.33 7 750 0.00 25.75 7 750 28.33 54.08 28.33 7 750 2.58 7 750 28.33 54.08 56.66 28.33 7 750 0.00 25.75 7 750 0.00 25.75 7 750 0.00 25.75 7 750 0.00 25.75 7 730 0.00 25.75 7 750 0.00 29.40 Transaction Amount 40.80 . 40.80 40.80 -40.80 4010 -40.80 40.80 - 40.80 40.90 -40.80 40.80 -40.80 40.80 - 40.80 40.80 -40.80 25.75 -25.75 25.75 2.58 25.75 - 25.75 -28.33 25.75 2.58 25.75 -25.75 -25.75 25.75 25.75 2.58 -28.33 -28.33 25.75 -25.75 25.75 -25.75 25.75 -25.75 25.75 -25.75 25.75 -25.75 29.40 -29.40 NO.475 P02 Balance 40.80 0.00 40.80 0.00 40.80 0.00 40.80 0.00 40.80 0.00 40.90 0.00 40.80 0.00 40.80 0.00 25.75 0.00 25.75 24.33 54.08 2833 0.00 25.75 28.33 54.08 28.33 2.58 28.33 54,08 56.66 29.33 0.00 25.75 0.00 25.75 0.00 25.73 0.00 25.75 0.00 25.75 0.00 29.40 0.00 U = Unposted Transaction Page 2 04/30/2004 Customer 10rorMalian ACCT. NO : 163154 BECKER EDWIN 1 32820 20TH AVE S STE 53 FEDERAL WAY. WA 98003 -9475 13:00 VAL UUE JER DISTRICT 4 4313665 Date Type Read Date Reading 03/02/2002 Charge 03/01/2002 7 03/25/2002 Payment 04/01 /2002 Charge 04 /01/2002 7 04/30/2002 Payment 05/02/2002 Charge 05/02/2002 06/02/2002 Charge 06/01/2002 06/12/2002 Payment 06/14/2002 Payment 07/02F2002 Charge 07 /01/2002 7 07/22/2002 Payment 08/02/2002 Charge 08/01/2002 08/09/2002 Payment 09/02/2002 Charge 09/01/2002 09/I8/2002 Payment 10/03/2002 Charge 10/01/2002 10/17 /2002 Payment 11/02/2002 Charge 11/01/2002 11/12/2002 Payment 12/02/2002 Charge 12/01/2002 12/16/2002 Payment 01/02/2003 Charge 01/01/2003 01/30/2003 Payment 02/02/2003 Charge 02/01/2003 02/13/2003 Payment 03/02/2003 Charge 03/01/2003 03 /21/2003 Payment 04/02/2003 Charge 04/01 /2003" 04/30/2003 Payment 05/02/2003 Charge 05/01/2003 05/30/2003 Payment 0610212003 Charge 06/01 /2003 06/06/2003 Payment 07/02/2003 Charge 07/01/2003 08/012003 Penalty 08/02/2003 Charge 08/01/2003 08/05/2003 Payment 08/28/2003 Payment 09/02/2003 Charge 09/01/2003 10/02/2003 Charge 10/01/20113 10/31/2003 Payment 11/03/2003 Charge 11/01/2003 7 11/28/2003 Payment 12/0 Charge 12/01/2003 7 12/30/2003 Payment 01/02/2004 Charge 01/01/2004 7 04/30 /2004 01:38:10 f = First Bill L = Final Bill Val Vue Sewer District Customer Transaction Summary 7 7 7 7 7 7 7 7 7 7 7 7 7 7 7 7 7 Location Information SERVICE ID: 163154 12677 F MARGINAL WAY S SEA'l WA 98168.2562 Usage Prior Balance 750 0.00 29,40 750 0.00 29,40 750 0.00 750 29.40 58.80 44.10 750 -15.70 13.70 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 32.34 61.74 32.34 750 -29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 29.40 750 0.00 U = Unposte4 Transaction( NO.475 003 Transaction Amount Balance 29,40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 29.40 58.80 - 14.70 44.10 -59.80 -15.70 29.40 13.70 -1170 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29:40 29.40 - 29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29,40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 2.94 32.34 29.40 61.74 -29.40 32.34 -61.74 -29.40 29.40 0.00 29.40 29.40 -29.40 0.00 29.40 29.40 -20.40 0.00 29.40 20.40 -29.40 0.00 29.40 29.40 Page 3 04/30/2004 Customer information ACCT. NO : 163154 BECKER EDWIN 32920 20TH AVE S STE 53 FEDERAL WAY. WA 98003 - 9475 Date TYPr 02/01/2004 Penalty 02/0212004 Charge 02/102004 Payment 03/02/2004 Charge 03/312004 Payment 04102/2004 Charge 04(2812004 Parma 13:00 UAL WE JER DISTRICT 9 4313665 ' Val Vue Sewer District Customer Transaction Summary Read Date 02/01/2004 03/01/2004 04/01/2004 04/30/2004 01:52:10 F _ FIrs111i11 L - Final Bill Reading 7 7 7 Location Information SERVICE ID: 163154 12677 E MARGINAL WAY S SEATi'I.F.1 WA 98168 -2562 Usage Prior Balance 29.40 750 32.34 61.74 750 0.00 29.40 750 0.00 29.40 Transaction Amount 2.94 29.40 -61.74 29.40 -29.40 29.40 - 29.40 VAL. � i TA�F kR O A, D SOUTH 141316 P.O. BOX 69550 :;EA'ITLE WASHINGTON 8 68168 t U a Unpostcll Transaction Page NO.475 D04 Balance 32.34 61.74 0.00 29.40 0.00 29.40 0.00 4 Missing Page 1 Letter to Becker Trucking Re Business License Renewal, October 23, 2003 Not found in file Becker Trucking Business License Renewal October 23, 2003 TMC 18.70.040, Nonconforming Uses states that if any nonconforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three -year time period, whichever occurs first, any subsequent use shall conform to the regulations of the Zoning Code. After a review of the facts about the site, we believe the site is no longer operating as a truck terminal but rather is being used only for truck and trailer storage. Of the elements of a truck terminal operation (dispatch, transfer of freight, parking of semi - trucks and trailers), the on -site dispatch function ceased for six consecutive months and therefore the nonconforming truck terminal use on the LDR zoned portions of the site ceased. We wrote to Mr. Becker on July 14, 2003 (Attachment 5) stating our view that the nonconforming status of the site for use as a truck terminal had expired and that we were prepared to deny the business license unless Mr. Becker provided information that the truck terminal use had continued. We have not received any written information from Mr. Becker that shows the truck terminal use has remained continuous since the business moved to its new location. We would appreciate the opportunity to meet with you to discuss this business license and whether there are grounds to deny its renewal. I will check your calendar to schedule a time early the week of October 27, 2003. Please let me know if you have any questions. I can be reached at 431 -3661. Enclosures cc: Jack Pace, Deputy Director Nora Gierloff, Planning Manager c: \General\Becker Trucking- License2.doc 2 October 29, 2003 City of Tukwila Department of Community Development Mr. Rolan Becker Becker Trucking 6350 South 143`d St. Tukwila, WA 98168 -4624 RE: Becker Trucking Renewal of Business License Dear Mr. Becker: On July 14, 2003 I wrote to you about the application to renew the business license for the Becker Trucking business at its former location at 12677 East Marginal Way South. In that letter, I notified you that the City believes that the nonconforming status of this site has lapsed and that it can no longer be used as a truck terminal. You contacted me by telephone and stated you would provide information that shows the truck terminal use has continued on the East Marginal Way site since the operation moved to the new location on South 143'" St. As of this date, I have not received any supporting information from you. You must provide the information for our review that indicates that the truck terminal use has continued since the business moved to its new location by November 12, 2003. If we do not receive information that confirms the continued use of the site for truck terminal use by November 12, 2003, the application to renew the business license at the East Steven M. Mullet, Mayor Steve Lancaster, Director 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206- 431 -3670 • Fax: 206 - 431 -3665 Missing Page 2 Letter to Rolan Becker, October 29, 2003 Not found in file December 15, 2003 6200 Southcenter Boulevard • Tukwila, Washington 98188 Steven M. Mullet, Mayor Mr. Rolan Becker Becker Trucking, Inc. 6350 S. 143" St. Tukwila, WA 98168 -4624 VIA CERTIFIED MAIL 7002 2410 0004 6341 2772 Return Receipt Requested RE: NOTICE OF DENIAL - 2003 TUKWILA BUSINESS LICENSE Dear Mr. Becker: This letter will serve as a Notice of Denial that your application for a 2003 Tukwila Business License for your business located at 12677 E. Marginal Way S., Seattle, WA 98168 has been denied under Tukwila Municipal Code 5.04.110 Denial — Revocation: A.2. — The building, structure, equipment, operation or location of the business for which the license was issued does not comply with the requirements or standards of the Tukwila Municipal Code. The Department of Community Development viewed your application and found that the nonconforming status of this site has lapsed and it can no longer be used as a truck terminal. Letters from Jack Pace, DCD Deputy Director, dated July 14, 2003 and October 29, 2003 were sent to you requesting documentation you said you would provide showing the truck terminal use has continued on the East Marginal Way site since the operation moved to the new location on S. 143` St. To date we have not received any information from you that disputes the City's conclusion that the legal nonconforming use has ceased at the East Marginal Way site. You are hereby advised it is illegal to conduct business in the City of Tukwila without a current business license. You may appeal this Notice of Denial to the Hearing Officer, provided that the appeal is made in writing and filed with the City Clerk within ten (10) days from the date of receipt of the Notice of Denial. The appeal must specify the particular reason(s) upon which the appeal is based. Failure to appeal within this time period shall constitute a waiver of all rights to any additional administrative hearing or determination on the matter (Tukwila Municipal Code 5.04.110(B)). Phone: 206 433 - 1800 • City Hall Far 206 - 433 -1833 • www.ci.tukwila.wa.us Rolan Becker Becker Trucking December 15, 2003 Page 2 Should you have questions regarding the reason for denial, please contact Deputy Director Jack Pace at (206) 431 -3686. For questions regarding the business license application, contact the City Clerk's office at (206) 433 -1800. cerely, 4 / x_t. ity Clerk C: e E. Cantu, CMC S. Kerslake, City Attorney J. Pace, DCD Deputy Director K. Stetson, Code Enforcement ,`SENDER COMPLETE THIS SECTION City, State, ZI PS'Form.3804fJlnet200 ee Reverse'tar Instructign ice Type edified Mail ❑ Registered ❑ Insured Mail COMPLETETHIS SECTION ON DELIVERY ❑ Express Mail ❑ Return Receipt for Merchandise ❑ C.O.D. r„ ru rn —o t7 ru ru • Complete Items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 6 Gk�� 5o S. (4 3 ra4 S{-- a w q8168 -46a4- Postage Certified Fee Return Reclept Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees 2. Article Number (Transfer from service label) ? © 0 a � 1, 1 0 • PS Form 3811, August 2001 Domestic Return Receipt S°PcslaCS CERTIFIED1IIQIC.T RE � . Domestic MatI OnIy„No tnsurance,CoverageProvided} :;For delivery Inforinatiartvlsit; odrvirebsite .atvlrww`usps:cort>air $ . 3 - 7 a2 3o $ �. Pied by (Pri Postmark Here t,P-- 1 Z1 � dre l+ Addressee • arne DO l eU D. Is delivery address different from item 1? ❑ Yes If YES, enter delivery address below: ❑ No 4. Restricted Delivery? (Extra Fee) ❑ Yes o004-63q 102595 -02 -M -1035 Na D v e. ; - n g- , 2003 City of Tukwila Department of Community Development Steve Lancaster, Director TO: Jane Cantu, City Clerk FM: Jack Pace, Deputy Director RE: Renewal of Becker Trucking Business License c: \mydocs \General\Becker - Businesss License 3.doc MEMORANDUM cc: Shelley Kerslake, City Attorney Nora Gierloff, Planning Manager Carol Lumb, Senior Planner If you have any questions, please call me at 206 -431 -3686 or Carol Lumb at 431 -3661. Steven M. Mullet, Mayor Attached please find the application to renew the business license for Becker Trucking at 12677 East Marginal Way South. The Department of Community Development has determined that the renewal should be denied, based on the information we have about the site. I am attaching copies of two letters we have written to Mr. Rolan Becker requesting additional information about the aspects of the business conducted at the East Marginal Way site. We have not received any information to -date from Mr. Becker that disputes our conclusion that the legal nonconforming use - the truck terminal - has ceased at that location. As a result, we recommend denying the renewal of that business license. 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 EXPIRATION DATE 12 -31 -2002 DATE ISSUED 08/01/2002 LICENSE NUMBER 02 -424 FEE PAID $100.00 SALES TAX CODE No.1729 TD CITY CLERK EXPIRATION DATE 12 -31 -2002 i 0'ATE IS8Ut5 ' 12/29/2001 - LICENSE NUMBER AID SALES TAX CODE No. 1729 $100.00 CITY CLERK 7/21/2003 10:54 - FROM: Fax Becker Trucking_Inc. TO: 433- 183° `AGE: 002 OF 002 City of Tukwila, Washington BUSDNESS LICENSE 246 -9500 Trucking, General Freight TELEPHONE NATURE OF BUSINESS LICENSEE AGREES TO COMPLY WITH ALL THE REOUIREMENTS OF CITY ORDI- NANCES AND STATE LAWS APPLICABLE TO THE BUSINESS ACTIVITY LICENSED HEREUNDER. Becker Trucking, Inc. 12677 8 MARGINAL'WY S TUKWILA WA 98168 -2562 This license is to bo displayed conspicuously at the location of business and is not transferable or assignable. City of Tukwila, Washington BUSINESS LOCENSE 246 -9500 Trucking, General Freight TELEPHONE — — NATURE OF BUSINESS LICENSEE AGREES TO COMPLY WITH ALL THE REQUIREMENTS OF CITY OR0I NAI4CES AND STATE LAWS APPLICABLE TO THE BUSINESS ACTIVITY LICENSED HEREUNDER. Becker Trucking, Inc. 6350 S 143RD ST TUKWILA WA 98168 -4624 This license Is to be displayed conspicuously at the location of business and is not transferable or assignable. 246 -9500 City of f�� 'lukwill ' a, ((�� Washii � n (( gtto ����' O USOU ESE Ll©L'�UVCJ'L_-, TELEPHONE NATURE OF BUSINESS LICENSEE AGREES TO COMPLY WITH ALL THE REQUIREMENTS OF CITY ORDI- NANCES AND STATE LAWS APPLICABLE TO THE BUSINESS ACTIVITY LICENSED HEREUNDER. Becker Trucking, Inc. 6350 S 143RD ST TUKWILA WA 98168 -4624 Trucking, General Freight DATE ISSUED 01/16/2003 FEE PAID $100.00 EXPIRATION DATE 12 -31 -2003 LICENSE NUMBER 03 -745 SALES TAX CODE No. 1729 This license is to be displayed conspicuously at the location of business and is not transferable or assignable. July 14, 2003 Dear Mr. Becker: City of Tukwila RE: Becker Trucking Renewal of Business License Mr. Rolan Becker Becker Trucking 6350 South 143' St. Tukwila, WA 98168 -4624 Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director You have applied for a renewal of the business license of a trucking and general freight business, Becker Trucking, at its former location at 12677 East Marginal Way South. As you know, this site was annexed to the City of Tukwila in 1989 and at the time of annexation was developed and used as a truck terminal. The properties that comprise Becker Trucking are zoned a mix of Commercial/Light Industrial (C/LI), Low Density Residential (LDR), and Neighborhood Commercial Center (NCC). The use as a truck terminal is a legal nonconforming use on the portions of the site zoned NCC and LDR and a permitted use in the C/LI district. The use of the NCC zoned portion of the site was the subject of a conditional use permit approved in 1994 that established conditions for the use of this parcel for parking of employee vehicles and trailers and semi - trucks. On April 17, 2002, the Becker truck terminal operation moved to a new site, 6350 S. 143' Street in Tukwila. Based on the information you provided in your business license renewal application as well as site visits, it appears that the site is used to park semi - trucks and trailers. The business license application indicates that the site is not staffed although the loading dock is used to transfer freight between trucks. TMC 18.70.040, Nonconforming Uses (copy attached) states that if any nonconforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three -year time period, whichever occurs first, any subsequent use shall conform to the regulations of the Zoning Code. After a review of the facts provided about the site, I believe the site is no longer operating as a truck terminal but rather is being used only for truck and trailer storage. All the elements of a truck terminal (dispatch, transfer of freight, parking of semi - trucks and 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 Mr. Rolan Becker Becker Trucking July 14, 2003 Sincerely, et-eA Jack Pace Deputy Director Enclosure trailers) ceased for six consecutive months and therefore the nonconforming truck terminal use on the NCC and LDR zoned portions of the site ceased. . If you have information that indicates that the truck terminal use has continued since the business moved to its new location, please provide that within 2 weeks, or by July 28, 2003 for our review. If we do not receive information that confirms the continued use of the site for truck terminal use by July 28, 2003, the business license renewal application will be denied. If you have any questions, I can be reached at 431 -3686. cc: Steve Lancaster, Director, Department of Community Development Bruce Disend, City Attorney Jane Cantu, City Clerk Barbara Saxton, City Clerk's Office Carol Lumb, Senior Planner c:\mydocs \General\Becker- Business License.doc 2 March 3, 2003 Mr. Roland Becker Becker Trucking 6350 South 143 Street Tukwila, WA 98168 " BY CERTIFIED MAIL RE: Property at 12633 East Marginal Way South Dear Mr. Becker: I am writing about property you own at 12633 East Marginal Way South, in Tukwila. This property is comprised of parcels with the following tax account numbers: 734560 -0685: zoned Commercial/Light Industrial; 734560 -0766: zoned Commercial/Light Industrial and Low Density Residential, developed with the truck terminal buildings; 238420 -0010: zoned Neighborhood Commercial Center, developed as a parking lot for employees and truck/trailers. A map is attached that indicates the location of these parcels. Parcel 238420 -0010 was the subject of a conditional use permit that was approved in 1994 (L93- 0058). Through the conditional use permit, conditions were applied to the design and construction of the parking lot and activities that may or may not take place on this parcel. A copy of those conditions is attached. Our records indicate that you vacated the site on East Marginal Way South by close of business on April 16, 2002 and relocated the truck terminal business to 6350 South 143 Street. We are interested in knowing your intentions on the use of the East Marginal Way property. Have you continued to use these parcels as a truck terminal? If you have, can you please document when that use was resumed and on which parcels. Our interest in the status of these parcels stems from the nonconforming status of the truck terminal use on portions of the parcels. Under Tukwila's zoning code, if a legal nonconforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, whichever comes first, any subsequent use must conform with the zoning code regulations. A copy of TMC 18.70.040, "Nonconforming Uses" is attached for your review. Mr. Roland Becker Becker Trucking March 3, 2003 Sincerely, c: \mydocs \General \Becker Trucking On a related matter, it appears that the NCC -zoned parcel is out of compliance with the conditional use permit condition that restricts the number of parking spaces to 43 for employee parking and 17 parking spaces for trucks, trailers and tractors. A recent drive by the site showed the entire parking lot being used by tractor trailers. I look forward to hearing from you. If you have any questions, please call me at 206 -431 -3670. Steve Lancaster Director, Department of Community Development cc: Jack Pace, Deputy Director Nora Gierloff, Planning Supervisor Carol Lumb, Senior Planner 2 Biz is App is -Beck ruc ing Barbara Saxton Re: From: Carol Lumb To: Barbara Saxton Date: 2/19/03 5:13PM Subject: Re: Biz Lic Applic- Becker Trucking Yes, the business license for the original Becker Trucking site on East Marginal is still pending. A letter has been drafted to send Becker requesting information about their intentions for the use of this site. I don't believe the letter has gone out yet. »> Barbara Saxton 02/19/03 01:56PM »> Is this still pending? Thanks. »> Carol Lumb 01/28/03 08:59AM >» Hi Barbara: I have the renewal for this site of Becker Trucking. We are holding onto it for the time being as we're determining whether the use is still ok (most of the truck operation there operated under legal nonconforming status - when they moved to the Interurban site, we started monitoring the site to see if the nonconforming status was going to lapse.) I'll ask Steve /Jack about signing off on the business license. Carol »> Barbara Saxton 01/27/03 10:04AM »> Just checking on the status of this one as it has been out for quite a while: Becker Trucking 12677 E. marginal Way (unmanned freight dock space) If you don't have it, pls let me know so I can route a copy over to you. THX. CC: Jack Pace; Nora Gierloff; Steve Lancaster Page 1 fN-1 P rl�<r June 11, 2002 Mr. Michael Metcalf Mike Conrotto Trucking P. 0. Box 20638 Gilroy, CA 95021 -0638 RE: Becker Trucking Property Dear Mr. Metcalf: Thank you for your letter to Carol Lumb, senior planner with the Department. I understand that your company is considering the purchase of two parcels from Becker Trucking: This letter is in response to your request for a determination on whether your company, a refrigerated trucking company, is the same use as the Becker Trucking truck terminal use. First, I would like to clarify the parcels that comprise the Becker Trucking facility as your letter did not include all of the parcels: 734560 -0685: zoned Commercial/Light Industrial; 734560 -0766: zoned Commercial/Light Industrial and Low Density Residential, developed with the truck terminal buildings; 238420 -0010: zoned Neighborhood Commercial Center, developed as a parking lot for employees and truck/trailers. A map is attached that indicates the location of these parcels. Parcel 238420 -0010 was the subject of a conditional use permit that was approved in 1994. Through the conditional use permit, conditions were applied to the construction of the parking lot and several conditions that apply to activities that take place on this parcel. Specifically, hours of operation are limited to 6:00 a.m. to 10:00 p.m., which conflicts with your planned 24 hour /day operation. A copy of these conditions is attached. Truck terminals are a permitted use only in the Commercial/Light Industrial district; they are not permitted in the Low Density Residential district or the Neighborhood Commercial Center district. The Becker Trucking truck terminal use is a legal nonconforming use in those two districts, as it was established prior to those zones being applied after the area was annexed from unincorporated King County. If the legal nonconforming use ceases for any reason for a period of more than six consecutive months, or a total of 365 days in a three year time period, whichever comes first, any subsequent use must conform with the zoning code regulations. Mr. Michael Metcalf Mike Conrotto Trucking June 11, 2002 Your letter notes that your business operates 24 hours per day, 7 days a week. The City's Noise Ordinance (TMC 8.22) establishes limits on the ambient sound levels permitted during the day and from 10:00 p.m. to 7:00 a.m. Any use established on these parcels would be subject to these regulations. We will require documentation prior to issuance of a business license that the noise levels can be met. I have reviewed the information available in this office on the Becker Trucking operation and find no references to refrigerated trucks being among the type of trucks that were serviced either on a regular or infrequent basis at the Becker Trucking facility. As a result, the introduction of a truck terminal facility comprised solely of refrigerated trucks on the Becker Trucking site would be an expansion of the nonconforming aspects of the truck terminal use located in the Low Density Residential and Neighborhood Commercial Center districts and therefore not permitted in those two zones. If you have any questions, please contact Carol Lumb at 206 -431 -3661 or me at 206 -431 -3686. Sincerely, Jack Pace, Deputy Director Department of Community Development % ' Attachments: Assessor Maps identifying Becker Trucking parcels L94 -0018 Conditional Use Permit Conditions cc: Mr. John Jewett, Insignia Kidder Mathews Nora Gierloff, Planning Supervisor Carol Lumb, Senior Planner c: \mydocs \General\Becker Trucking - Metcalfdoc 2 Parcel Map and Data 7:�y!_ 734 56.00680 J 5600565 /34060054o 144 t ''XL..) 4154041 a 126TH III / -- $_126TH_aT _ gn 4J q = r /W V:0361 361 734 05 • 734 '0/20 +1rFi }�:_r i 5 1 r'.!' ItaY.)7 731 , y 734 ,s::ty.:a5 Z 7345600764 7 7341 y"*:: ' O N /3ISE4fi7 0 7 +.1 &97+ 734'_•r :x 1 \ 7 2,,vezir..F i a 128TH aT 1&1')50( 782 :t'S..:.) /a' z3_112' --:r'! 23.2420.::0" C' 72 / 73X.:.0: 044C"1flP 7i.1 ' 1r.• /Y/76i 0/1Y 71 2'2842M:07 34CF1 -_.12}.:v55 2.11 ,. ::e97ti 1 , Parcel Number 7345600766 Address 12633 EAST MARGINAL WY S Zipcode Taxpayer BECKER FAMILY REVOCABLE LIVING TRUST THE The information included on this map has been compiled by King County staff from a variety of sources and is subject to change without notice. King County makes no representations or warranties, express or implied, as to accuracy, completeness, timeliness, or rights to the use of such information. King County shall not be liable for any general, special, indirect, incidental, or consequential damages including, but not limited to, lost revenues or lost profits resulting from the use or misuse of the information contained on this map. Any sale of this map or information on this map is prohibited except by written permission of King County." Print Map Page Page 1 of 1 King County '-: t.( x t rr ;`r' I King County I GIS Center I News I Services I Comments I Search By visiting this and other King County web pages, you expressly agree to be bound by terms and conditions of the site. The details. http: / /www5. metrokc. gov /parcelviewer/Print Process.asp 04/26/2004 OTHER DEPARTMENT OF COMMUNITY DEVELOPMENT EXECUTIVE SUMMARY January 212002 - January 24, 2002 Becker Trucking Site - The Tukwila School District has made a contingent purchase offer on the portion of the former Becker Trucking site located south of South 128th Street and west of East Marginal Way South. They propose to use the property to park their 12 school buses. It is likely this will be determined consistent with an existing "grandfathered" CUP covering the site (we need to confirm that the CUP has not been "abandoned" by the current property owner. Dr. Silver has indicated that he will contact residents in the vicinity to understand any concerns they might have. Westfield Shoppingtowne at Southcenter - I met with John Goodwynn and his land use attorneys to discuss next steps in the expansion project. We are targeting the end of next week to have a detailed project description from Westfield, and to have made our preliminary EIS consultant selection. We hope to have a consultant team "kick -off' meeting in February. Commute Trip Reduction Program - Group Health located in Tukwila, received a Diamond Award on January 22 for outstanding achievements in the parking management category in support of commute trip reduction efforts. Mayor Mullet and Rhonda Berry attended the ceremony at the Harbor Club with GHC employee transportation coordinators, Andrea Coonrad and Cicely Buehler and Bill Biggs, Director of Administrative Services. CTR Coordinator, Maggi Lubov, chaired the event committee. Diamond Awards are sponsored by Commuter Challenge and partners including the City of Tukwila. Code Enforcement - Kathy Stetson is temporarily helping out in the Code Enforcement position half -time from 8:30 to 12:00, until the position is filled. Steve Lancaster, Director, Department of Community Development Testing for the Compliance of Becker Trucking with the City of Tukwila's Noise Ordinance Performed for the City of Tukwila Performed By: Environalysis- Seattle WA. June, 2001 No. Date Time dBA Activity Measured M -1 6 -13 -01 6:31 AM 56.6 Forklift loading trailer M -2 6 -13 -01 6:35 AM 57.5 Forklift loading trailer M -3 6 -13 -01 6:47 AM 50.3 Moving trailers in south lot M -4 6 -13 -01 6:50 AM 58.7 Moving trailer across 128 to north lot M -5 6 -13 -01 6:55 AM 59.9 Tractor hooking up to trailer and moving it M -6 6 -13 -01 7:02 AM 58.1 Tractor moving trailer on north lot M -7 6 -26 -01 6:02 AM 54.1 No activity at Becker Trucker M -8 6 -26 -01 6:05 AM 67.3 Moving trailer across 128 to north lot M -9 6 -26 -01 6:06 AM 62.4 Tractor moving in north yard M -10 6 -26 -01 6:13 AM 61.4 Trucks (2) idling in north yard M -11 6 -26 -01 6:18 AM 56.9 Trucks (2) idling in north yard Summary Environalysis was asked by the City of Tukwila to determine if Becker Trucking complies with the city's noise ordinance. We took several noise measurements on two separate occasions and, after analysis, concluded that Becker Trucking does comply with the City of Tukwila's noise ordinance —when the Noise Code's exemptions for short- term exceedances are taken into account. We recommend however, that Becker Trucking restrict their operating hours to 7AM -10 PM weekdays and 9 AM -10PM weekends. Methodology. Becker Trucking operates a warehouse facility in Tukwila on East Marginal Way South and South 128 The warehouse, loading docks and offices are on the north side of 128 and a trailer storage lot is on the south side of 128 The closest residences are also on • the south side of 128`". There are three homes, one of which adjoins the trailer storage yard. In order to answer whether or not the Becker Trucking was in compliance with the City's noise ordinance, we took a number of noise measurements on two separate days. The measurements record background noise (when Becker was not operating) and sound levels from a variety of activities at the Becker facility. Figure 1 illustrates background noise levels recorded before operations began. Sound levels from the moving and loading of trucks on the Becker property are summarized in Table 1. Table 1. Measured Noise Levels The relevant noise ordinance is that of the City of Tukwila's Municipal Code which adopts Washington State noise regulation (WAC 173 - 060) and has a "Maximum Permissible Sound Level" of a commercial source upon a residential receiver of 57 dBA during daytime hours (7AM -10 PM weekdays and 9AM -10 PM weekends) and 47 dBA during night hours. 70 68 66 64 62 60 58 _ 56 54 52 50 48 46 44 42 40 06:36 AM Maximum permissible nighttime noise impact 06:39 AM Figure 1. Background Noise Levels Measured at 3807 South 128th 06:42 AM 06:45 AM 06:48 AM 06:51 AM 06:54 AM 06:57 AM — VIM - Ml- Forklift loading trailer -- - M2- Forklift loading trailer M3- Tractor moving trailers south lot - MS-Tractor hooking up to trailer M6- Tractor moving trailer north lot ® M9- Tractor moving in north lot S E M10- Trucks idling in north lot M11 -Truck idling in north lot 65 63 61 59 57 55 53 51 49 47 45 43 41 39 37 35 Si ES ES -MS -- $ In - - S E IEF Figure 2. Noise Levels from Becker Trucking Operations in dBA LEQ s au c e an $ ®.. c E w c ES Ea ME IMF _SE • illi iii - — OM N M lir Er -OE MS- 06:36 AM 06:38 AM 06:40 AM 06:42 AM 06:44 AM 06:46 AM 06:48 AM 06:50 AM 06:52 AM 06:54 AM 06:56 AM 06:58 AM Traffic from Becker Trucking is exempt from these regulations when using public roads (such as South 128 Street). This fact complicates noise measurements because one of Becker's noisiest activities for the nearby homes is when tractors are moving trailers from the south parking lot across 128 to the north lot —after which they are loaded from the warehouse and hauled away. Noise sources are allowed to exceed the City and State's noise standards by 15 dBA for no more than 1.5 minutes per hour, by 10 dBA for 5 minutes and hour and by 5 dBA for 15 minutes an hour. The project's actual noise is the result of a subtraction between the sound levels measured when the project is inactive (as shown in Figure 1.) and when it is operating (shown in Table 1). The calculation of a project's noise impacts can be complex when both the project and the background noise vary from moment -to- moment (as is often the case with trucking operations). In order to understand this dynamic situation, we analyzed project impacts by subtracting the measured background noise levels from the noise levels measured which Becker Trucking was operating. This methodology assumes that project noise levels would remain fairly steady compared to a varying background noise environment. This actually is a conservative approach (one which may tend to overestimate project impacts), because project noise levels (from accelerating trucks and banging noises as trucks are loaded) vary greatly from moment to moment. Figure 2 illustrates the noise impacts of different aspects of this facility's operations. By visual inspection of Figure 2 it is clear that all aspects of the operation of Becker Trucking would exceed the nighttime noise standard of 47 dBA. The situation about adhering to the daytime noise standard of 57 dBA is more complicated — several of the operations we measured would exceed that standard (e.g. M -5, M -9 and M -10) and several would meet it (e.g. M -1, M -2, M -6). However, when we more closely examine those operational tasks that apparently (by visual inspection of Figure 2) exceed the noise standard, we see that those operations do not exceed the allowed short-term exceedances of the noise standards i.e. 15 dBA exceedances for 1.5 minute/hour, 10 dBA exceedances for 5 minutes/hour and 5 dBA exceedances for 15 minutes/hour. Conclusion The Becker Trucking operation is located in an area with high background noise levels characterized by large variations in noise levels. The dominant background noise sources are airplanes taking off from Sea -Tac airport and local vehicle traffic on East Marginal Way. Clearly, if Becker Trucking operates before 7 AM on weekdays and 9 AM on weekend and legal holidays the noise it generates will be in exceedance of the City's Noise Ordinance. However, if Becker Trucking begins operations after those hours it will be in compliance with the City's noise regulations. The City should be aware that noise from a source like Becker Trucking is extremely difficult to mitigate for many reasons; noise barrier walls would be ineffective due to the openings needed for vehicle access and egress, the existing background noise is high and varies greatly due to airplane takeoffs and the Becker facility is a combination of a noise sources which can be regulated by the City (on -site noises) and noise sources which cannot be regulated (Becker's trucks moving across public streets and roads). Our recommendation is that the City requires Becker Trucking to minimize truck and trailer movement before 7AM on weekdays and 9 AM weekends. My personal feeling is that there needs to be a new zoning classification for residences newly built adjacent to existing commercial or industrial uses. The higher noise levels prevalent in these areas are (to some extent) accounted for in the lower valuations of these residential properties and must be accepted by the owners as a reason for the lower purchase prices they paid for these homes. Photo No.: 5 8 f Ole- il8_ Date/Time Flown: 7 Scale of Print: 1 1 Beall US ARM CORPS OkNGINEERS SEATTLE DISTRICT 4735 E. Marginal Way S. Seattle, WA 98134 -2385 (206) 764 -3552 11 ,r = Zo US ARMY CORPS OF ENGINEERS SEATTLE DISTRICT 4735 E. Marginal Way S. Seattle, WA 98134 -2385 (206) 764 -3552 Photo No.: a 0/ 0 ' III -9 Date/Time Flown: 7-44 • g 8 Scale of Print: / K d �30 Becker Trucking Facility East Marginal Way S Photos taken 5/13/03 Becker Trucking Facility East Marginal Way S Photos taken 5/13/03 Becker Trucking Facility East Marginal Way S Photos taken 5/13/03 Legend Property Lines Zoning Lines Lon Zoning Designations 12677 East Marginal Way S 12677 East Marginal Way S Parcels • Streets • All Watercourses 1 l iusiness License: CI RENEWAL Eby application pate: Busirlesa Name L(}A `% A:' 3 Local Street /s24> t79 .r. 7yie ..crgG 40.4-y Sin, u4 Address (' , ; 4- 4 , !Be cure to Include �P / � 10 y � l�o�. -- , code* 4.1t . w ion) Local PO box it zip, if apphcabie Corporate Address,, If different from local: , Business Phone *EL eras axb,E t,g64, ) Ve0 -5"g3el Corporate Phone: ) / r-7 ye6 /r,;. ' '2 3 It business Warne has changed in past rear. Sgt former name: hides* ownership stags: 0 Individuai 0 Pannerrtlp 0 u.0 ,snort 0 Nen•profit� Original opening date of business ln Tukwila: y .. -6 _ Local . , (bream - : wad home pk .15 -- ('c_ 95' ---7.---7.166a- 6 Ust owners/pa ars/ofticers: Title Home Address City/Slate/bp ga Phan Date of Birth / / / // y��l -ed3 24.).s /ice Je.-.,= s ©GV A/21... 9.I d iJ /0.20 P. - 9 Ce' 6 ),4 2t ^1' Ib your Door-to -door soBatatioNpoddier'1 •' 0 • 0 Yes business: Contractor based outside City? 0 yes a "Yee , show Idaho address In sp as below Operated from your Tukwila residence? Pb 0 Yes If "Yu', teed hifonnsflon on mesa ilia and My g t snits gambling devices on premises? b 0 Yee MY nt devices on premises? . 0 Yes if "Yes'. number of devices: Desctpdon of business (gtva detdia; ciao. Not bpos ofprodiucts said orsmned): 1/11 1/11 wl— &.9 8N /fll - t/e72, - /g 14o Will retail &ales be conduct O Yee Size of floor space used: s9- }t• l� Number of evadable parking ' 71Wc' / Total ainpioyees atTt&Mta locator', including owners end managers: Ftdl -lino: 6 Part=drna: AS Number of employees dt ems. type of employment Mee: c ., Retail: , Wholesale: Manufacturing: Warehousing: Other: olc Do �yo°�u+� .usefeiaa/discharge liammnble, hazardous. or bioltatardoue foreeltths? ll3 i�b 0 Yes it'Yss' ; state type and Quantity- Locaf�sr Contacts: Phone 1_ i � i C d / .ed2, de e -- 95s -5 -.er L OA si 9v t , - .o. - . oG2 ' 917 - 7 / _ Is your business ac:Mty - or any portions of your buldrnp - different than the previous use of Ms building /space? O Yes If YES. please provide description (use separate sheet if necessary) Are you PRESENTLY dab** (or PLANNING to do) any ConStruexton. remodeling, or instaiation of commercial storage racks? 0 we installation of new algnage or dianges In eodsttng aignager? O Yes if Yes 4 PRESENTLY' DOING Ust Pemdt #(s): PLANNING TO DA Contact the City of Tvicvelais Pe enk Center regarding peens t rag ine:tents PRIOR TO STARIING. B Show 2004 Qty of Tukwila Business License a New a Renewal Busb s: (Read Cf'R Irdoanab �n on nwersrsr del No. of GTB 'affected empb}reeis' at the site for which Otis business license application le flied: If area now butlang owner orpllennbg to sefl • bultdtng r P'leaoe nose Aar alarm kreteestian provisions on rammer o/d. ' : w ' ca, r i r E U Date. . (J 3 — S E: CV L. Y. r ` ,.. ' Received by i WA State Sales Tax* / .. or Uei number (g its): j 0.. y �3 1 herein s comet, certify the aflon contained 1 understand that any untrue statement Is cause t• • r- flan of at nee, Pali: 0 Casts ft 10 0 r Check No.: 5 f Receipt No.: O 7 `� On Signaturee eo,p,w'wjyAro-- . Build's g: 0 Build' w permit attached Planning: . ^ LA �-� �Z Zoning designation: IA Nam . S , 3► Police: L �: �L Fine: Ti tle /Office: (� , �L , .,,, Date issued: 3 e'] _ O_5— ; LICENSE F on * 0 to 5 rG.$5O OQ number of employees) e to 100 $100.00 ZOOS License No.: S — ( (� � t:HPC1iC ONE e'► D 101 and alaov® 1 — - - - tee. o. 'i/ =005 15:32 FAX 206 433 1E33 , City of Tukwila City of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188-2544 2064 31800 Application for 2005 City Business License ,,,FILL: our :T its FOFi'iv:iN t s E°lttttFiL INconsiipLETE`AOPLioATIoNs` Vitti.,r4offEE ACCEPTED This Is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business, ALL LICENSES EXPIRE DECEMBER 31 Please return completed application with fee to Tukwila City Hal at the address shown above, Attettion City aeries Office R ICJ 00S/004 ` /LO /U4 Business License: 0 RENEWAL NEW --J} Business Name /fi ed m R,ld- eon ,.."71-ctd i, L 4 Local Street Address /406. � motif. 7 /W � E}s¢' f}+'7'n�L�'t (Be sure to include zip ✓ "` "� 1 W`� � f 1�c3 code+ 4 -digit artenslon) Local PO box & zip, if applicable Business Phone ( r u n t a r e a c o d e r ( t o ) 4 , 0 8 - - / e 5 ' 7 Lora! manager (include rn. •» t Ir st Sealy 0 Is your business: era/ o ftke Door - to -door solicitation/paddler? Telephone solicitation? Contractor based outside City? f "Yes", sha il:41 to address in space below Operated from your Tukwila residence? if " Yes" read information on reverse side and al mess e If Renewal"* Date: Paid: Buiidin kruvr3 issued: 2004 License No.: 17:10 rAA Zuo 4.1t City of Tukwila s; Cash Check No.: [1::1`(7o O Building/sign permit attached Fire: 6200 Southcenter Boulevard Tukwila, Washington 98188-2549 206433 -1800 This Is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31' ! home phone) mon e9lv Mort , C20O• 04. types op Received by: Planning: Zoning designation: Show 2003 City of Tukwila Business License # /tlON Corporate Phone: yrwne Aaare '11) e orstore n coo i to No Is If New Business or tttls business Moroni than the previous use of gYes 0 No OFFICE ONLY II 7 Receipt No.: 0 t;l'1'Y TUDRILA :,4 ng. Will retail sales be conducted? El Yes kie Total employees at Tukwila location, including Number of employees in each type employment owners and managers: Full-time: Part-time: Wholesale: 45r- Manufacturing: Do use std scharge e, hazardous, or biohazardous materials? LocalEme n 0 Yes if 'Yes", state type and quantity: 1. S r 2 Are you PRESENTLY doing any: construction or remodeling? installation of comrnerdalatorage racks? Installation of new al or w o g� changes in e:dsGng signa9e? 1KNo Application for 2004 City Business License F t- QU ` EoRm 1110 ETAENTIREF IN coroPLETE.'APPLfCAT10N§ Wtl!:zNt1T` S AcCEpTEn Application Date: V'r ^ a Corporate Address, If different from local: Indicate ownership � s�pa� pSILLC City te/Z p M Yes Ei Yes MYes Yes Any gambling and/or gambling devices on premises? jNo :-Yes Any am emend devices on premises? No ; Yes If "Yes ", number of devices: t: Yes Ap'rapists building comfits M ST be obtained prior to Yes start of constriction or rack Installation. L] Yes Separate sign permits required. Copies of the final approved ermits MUST accompany this application. If business name has changed past year, fist former name: Si, ature: If Yes = • space /t✓� sq. ft. Office: Print me: /77699f 7 Title /Off .5 . 4.1^ Individual Xeartnership '_ICorporatton Non -profit p rage Date of Birth .0,U)b3/-$21b y!s> us ain e Tukkw il ° Tukwila: /- /- e tf Retail: Warehousin Oyer 1^UC14 yt • man ,c1Z) 4 147 - 4 S3 411 ri4 No. of CTR "affected employees' at the site for xJ which this business license application is fUed: (Read CTR Information on reverse side) If you are a new building owner or planning to sell a builabng .pinote fire alarm installation provisions on reverse side WA State Sales Tax # or UBI number (9 digits): & c3.6 7 1 certify the ntormation contained herein is correct. 1 understand that any untrue statement Is cause for revocation of my license. lej UUJ /UU4 LICENSE FEE (based on number of employees) 6 to 100.. 100: CHECK ONE sw• _ 101 and above $200.0 $50 0Q Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office Business License: ❑ RENEWAL ❑ NEW Application Date: /Z -ea _02.- Business Name Local Street TW Express /Vitran + 2 677 MAI CTTTAL S Corporate Address, if different from local: 7../ / 6!/{ J �� 4 V(.1C0.1EIZ). LW' 2!..5 E R S Address 4 b (Be sure to include zip cSEATTLE WA 98168 - 2'5'62 1 code+ 4 -digit extension) G3� ,S: <9,0 fg -T Local PO box & zip, if applicable Business Phone (include area coder 264 - 244 -1905 Corporate Phone: , / /‘_ 7C9 49 5 Local manager (include name and home phone): Zy/V 4 AJc ., 0- .36d- 15 .3' ,10 Indicate ownership status: ❑ Individual ❑ Partnership ❑ LLC Corporation ❑ Non - profit Lis wners/partners/ officers: Title Home Address City /State/Zip Phone Date of Birth Is your Door -to -door solicitation /peddler? , ( No A'Yes business: Telephone solicitation? ) No *Yes Contractor based outside City? J No ❑ Yes Any gambling and/or gambling devices on premises? No ❑ Yes Any amusement devices on premises? No ❑ Yes If "Yes ", number of devices: If "Yes'; show jobsite address in space below No Yes Operated from your Tukwila residence? El ,- If "Yes'; read Information on reverse side and si Description of business (give details; also, list types of products sold or stor: di. .... 'ID Office for Trucking /Whse Will retail sales be conducted? ❑ Yes ,kAo Size of floor space used: sq• ft- Original opening date of busmessinTukwila: 11/20/95 Total employees at Tukwila location, including owners and managers: Full -time: c° Part-time: J Number of employees in each type of employment Office: 7 Retail: Wholesale: Manufacturing: Warehousing: Other: Do you use/store/discharge flammable, hazardous, or biohazardous materials? ONo ❑ Yes If "Yes ", state type and quantity: Local Emergency Contacts: Phone 2. fG 4I6%N'OT Z6Z . feel/ Are you PRESENTLY doing any: construction or remodeling? N'No ❑ Yes installation of commercial storage racks? i' No ❑ Yes installation of new signage or changes in existing signage? J No ❑ Yes If Yes m* Appropriate building permits MUST be obtained prior to start of construction or rack installation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. Show 2002 City of Tukwila Business License # If Renewal -► 02-1315 If business name has changed in past year, list former name: - Is your business use different than the previous use of If New Business this building/space? � ?Yes ❑ No No. of CTR "affected employees" at the site for which this business license application is filed: (Read CTR information on reverse side) N you are a new building owner or planning to sell a building — please note fire alarm installation provisions on reverse side r#; Apptic' tion for 2003 City Business License City of T'urty lifiovED §"' 6200 Southcenter BoulevaroDEC 2 6 200 Tukwila, Washington 98188 -2599 206 -433 -1800 � g Ev COMMUNITY e 5 A ALL` rT his is an AP LIC / N ONLY, an NO; license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31 WA State Sales Tax N or UBI number (9 digits): 578031221 FlCEIIS>r t ?NE Date: _ Paid: !� Cash t o Or ' ;- Check No.: o Buildin ": S I2 - 3l - oZ ❑ Building/sign p-rmtt attached Planning: Wa Zoning designation: V Police: 1 Fire: Date issued: 2003 License No.: -1 _ Received by: 5 Receipt No.: 3 1 Signature: I certify the information contained herein is correct. I understand that any e statement is cause for rev • - tion of y license. Print Nam Title /Office: c�y /)?9,2_, LICENSE FEE (based on number of employees) CHECK ONE 0 to 5 $50.00 0 100' $100.00/ 101 and above $200.0,. 1 J Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office I Business License: gRENEWAL ❑ NEW Received by: 5 Application Date: i2-/7 -e f Business Name TW Express . V ?�/¢J/ Local Street 12677 E GINAL WY 5 Address SEATTLE WA 98168 -2562 (Be sure to Include zip code+ 4-dlgk urtens/on) Local PO box & zip, if applicable CHECK ONE 110 101 and above .... $200.00 Corporate Address: , �pR��i PO-41 • ' � 10 ,ea. ',1<6.62.6. c is d€ 6; 1 A • Business Phone (Include area code): 2 44 -19 0 5 WA State Sales Tax No. or 578031221 UBI number (9 digits): Corporate Phone: g/4 - if i/Z Local manager (include name and home phone): •I YAW /t/C /J�' 9X • ' -`�9� O Indicate ownership status: ❑ Individual ❑ Partnership Corporation • ❑ Non -profit OFFICEUSEONLY Date: '- - l — -& Received by: 5 LICENSE FEE (based on • 0 to 5 $50.00 number of employees) ,( 6 to 100 Ci1 CHECK ONE 110 101 and above .... $200.00 Paid: Cash Check No.: 1 00 7 Rec t No.: 5 j 302.3 WA State Sales Tax No. or 578031221 UBI number (9 digits): Buildin : Planning: Zoning designation: 1 certify the information contained herein is correct. 1 understand that any untrue statement is cause for revocatl. - - my license. • Building/sign permit attached Police: Fire: Signature: 40 LL %/ d Date issued: ---).--j. Print Nam -. / 2002 License No.: l s _ Title /Office: = /r y h4#. �C City of Tt wila 6200 Southcenter Boulevard Tukwila, Washington 98188 -2599 206 - 433 -1800 Appli for 2002 City Bu License Fly4,9u: tali fPfi'M INCiNIPLETE. _WILL N or, BE' ACCEPTED . This Is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31s ers/partners/ officers: - T itia Home Addre Is your business: Door -to -door solicitation/peddler? ❑ No ❑ Yes Telephone solicitation? ❑ No ❑ Yes Contractor based outside City? ❑ No ❑ Yes If "Yes ", show jobsite address in space below Operated from your Tukwila residence? pNo J (es if "Yes ", read information on revers nd sl n (give details; also, list types of products stored): of business Office for Trucking /Whse Will retail sales be conducted? ❑ Yes ❑ No • Total employees at Tukwila location, includ. management Full -time: 7 Part-lime: / Do you use/store/discharge flammable, hazardous, or biohazardous materials? ❑ No ❑ Yes If "Yes", state type and quantity: Are you PRESENTLY doing any: constriction or remodeling? At No installation of commercial storage racks? IgNo Installation of new signage or changes in existing signage? ki No ❑ Yes Yes Yes Renewal '* Show 2001 City of Tukwila Business License # 01 - 755 New business Imo' Is your business use different than the previous use of this building/space? ❑Yes dNo tate/Zip at e o f B Any gambling and/or gambling devices on premises? , No ❑ Yes Any amusement devices on premises? i5(No ❑ Yes No. of devices: A 445 If Yes Size of floor space use& sq.R Original opening date of business in Tukwila: 11/20/95 Number of employees in each type ' employment Wholesale: Manufacturing: Office: 7 Warehousing: Retail: Other. / In case of emergency, 1. 2. notify: Appropriate building permits MUST be obtained prior to start of construction or rack installation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. If business name has changed in past year, list former name: No. of CTR "affected employees" at the site for which this business license application is filed: (Read CTR information on reverse side) If you are a new building owner or planning to sell a building — please note fire alarm installation provisions on reverse side Please return completed application with fee to Tukwila City Hall at address shown above, Attentidn: City Clerk's Office I I Business • License: RENEWAL • NEW (� Application Date: Business Name TW Express Local Street 12677 E MARGINAL WY S Address SEATTLE WA 98168 -2562 (Be sure t0 .xlo zip code+ 4 extension) Local PO box & zip, if applicable Corporate Address: / � J"• / '1 �r �� ! � y ' t , © . 2I4 i /62 Business Phone (include area code). 244-1905 Corporate Phone: 6 Local ger (mind name and home phone): Ar f /40 -- 3 ) 3 - 041 lndl ate ownership status: ❑ Individual ❑ Partnership Corporation 0 Non -profit List rs/partne officers: Title Home Address GtylSlate/ ip : Phone Date of Birth Is your Door -to -door solicitation/peddler? , No ❑ Yes business: Telephone solicitation? $ No ❑ Yes Contractor based outside City? No ❑ Yes If "Yes", show jobsite address bt space below Operated from your Tukwila residence? ❑ No e XYes If "Yes", read k formation on reverse side and sign Any garali and/or gambling devices on premises? No ❑ Yes An amusement devices on premises? ;KNo D Yes No. of devices: Description of business (give details also, list types of products sold or stored): Office for e Trucking /Whe Will retail sales be conducted? ❑ Yes ❑ No Size of floor space used s q . f bOrigmai date business T of 11/2Q/95 Total employees at Tukwila location, includ. management Full -time: 9 Part o p Number of employees in each type of employment ce: O Retail Wholesale: Manufacturing: Warehousing: Other. Do use/ store /discharge flammable, hazardous, or biohazardous materials? �AVo ❑ Yes If "Yes ", state type and quantity: In of erne 2 m g 2 9 Are you PRESENTLY doing any: construction or remodeling? %No ❑ Yes installation of commercial storage racks? , No ❑ Yes installation of new signage or changes in existing signage? fiij'No ❑ Yes if Yes y Appropriate building emits M ST be obtained prior to start of construction or rack installation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. Show 2000 City of Tukwila Business License # Renewal* 00 - 556 If business name has changed in past year, list former name: Is your business use different than the previous use of New business a+ this building/space? ❑ Yes No No. of CTR °affected employees" at the site for which this business license application Is filed: (Read CTR Information on reverse side) If you are a new building owner or planning to sell a building - please note fire al arm installation provisions on reverse side OFFICE USE ONLY D = e: Rece , • by: , LICENSE FEE (based on ❑ 0 to 5 $50.00 number of employees) , S to 100 ,..,........ $t 00.00 CHECK ONE .o■ ❑ 101 and above .... $200.00 Paid: ❑ Cash q 1015-- 0 D eck No.: 1 o 0252.. Receipt No.: D 1 V WA State Sales Tax No. or UBI number (9 digits): 578031221 Building: • Building/sign permit attached Planning: Zoning designation: 1 certify the information contained herein Is correct. 1 understand that any untrue statement Is cause for revocat • . • y license. Police: Fire: v Signature / / Date issued: /AN 1 s Print Name: / - r . oo1 2001 License No.: /!, 1 �t� � V t C Ti tle /Office: r a s'�� City of T zwila 6200 Southcenter Boulevard Tukwila, Washington 98188 -2599 206-433-1800 FILL OUT THIS FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31 Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office Business 'License:, .. RENEWAL ❑ NEW 1 Application Date: /2• .— 9? - Business Name TW Express Local Street 12677 E MARGINAL WY s Address SEATTLE WA 98168 -2562 sure l include si p code. s4rgrt extension) Local PO box & zip, if applicable' Corporate Address: (0 ae, lee414--. �pp�� "ep. E dW dW (/�//W›, -- , -1 0'.4 2 Business Phone (Include area coder 244 - 1905 C orporate Phone:. l �` / / 1 9 �- 0 � Locat manager (include name and homophone): t4 Arcif C/60)4537"3990 �iduat Indicate ownersMp 0 Ind ❑ Partnership torpolBuon ❑ Non-profit fist ofcers: Title Home Address City/State/7.c Ptnne , Date of Birth x19 4 sr cr7e4re.em cry s 4,6wr er c•hvAwi mstd d t r cI/ onto Is your Door - to-door sdidtatbn4 eddler? ❑ No ❑ Yes business: " : Telephone soGdfation ?. ❑ No 0 Yes Contractor based outside City? ❑ No ❑ Yes if "Yes", showlobsne address if! apace below . Operated from your Tukwila residence? ❑ No f'Yes 11 "Yes , readbtfonnatlon on reverse side and sign MY gambling ardlor devices on prertdsea? No Yes Any amusement devices on premises? %No ❑ Yes No. of devices: Description of business (give details also, list types of products sold orsfr ed): Office for Trucking /Wise Wiii retail sales be conducted? ❑ Yes Size of floor space used . . s4• ft. , Original date of business in 11/20/9s ' ` Total employees at Tukwila location, inctud. Full Part -time: — Number d employees In each type of employment Office: 7 Retail: • Wholesale: Manufadudng: Warehousing: Other. Do use/ store/discharge flammable, hazardous, or btohazardous materials? No ❑ Yes If "Yes; state type and quantity: In cease ncy, r bW-05790 1. h�.ewt'.s %� 2 iir4 air / )fire - /xx9 Are you PRESENTLY doing any: construction or remodeling? , %No ❑ Yes hutallatioon of Commercial storage racks? ` ,No ❑ Yes change of signage? �No ❑ Yes If Yes .■ Appropriate buing permits start of construction Separate sign permits approved permits MUST MUST be obtained prior to or rack installation. required. Copies of the final accompany this application. Show 1999 City of Tukwila Business License 1 If business name has changed in past year, Iist former name: Renewal•► 99 -1014 Is your business use different than the previous use of No. of CTR "affected employees" at the site New business 0 this bu ng/space? which this business lcense application is filed: t J Yes ❑ No (Read CT R infomraban.on for - ,. 0 reverse side) If you are a new bulid /np owner or p/annlng to sell a building - please note fire alarm installation provisions on reverse side OFFICE USE Date: 12s 20 ONLY Received by: LICENSE FEE (based on ❑ 0 to 5 $50. number employees) 6 to 100. $100.0 `` CHECK ONE ■► • 101 and above .00 Paid: ❑ Cash Cr i o0 heck No.:Cc7 Receipt No 1 (g) WA State Sales Tax No. or UBI number (9 digits): 578031221 Budding: Planning: Zoning designation: 1 certify the information contained herein. Is correct. 1 understand that any untrue statement Is cause for vocation of my Ilcens°. ' • Building/sign permit attached Police: , ` Are: Signature: Date issued: n ,, t, 4 - ,,IAN, 1 1 2enn Print Name: / vr ,./ / <ifi✓ !' 2000 License No.: 00 (-- Title /Office: V r y ,vM„ AppU ration for 2000 City Business Licen City of ;Ti.,lwvila 6200 Southcenter Boulevard Tukwila, Washington 98188-2S99 206 -433 -1800 This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31 FILL OUT THIS FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED Please return completed application with fee Tukwila City Hall at address shown above, Attention: City Clerk's Office Business License: JRENEWAL • NEW / Application Date: 41_yi Corporate Address: jiwyY C 4 Business Name TW Express Local Street 12677 E MARGINAL WY 8 Address SEATTLE WA 98168 -2562 (Be sure to Include zip code+ 4 -digit sxtens ion) Local PO box & zip, if applicable Afg&a 2 OeBJ. dOr OGIA/COM Cle4 Z-fIX/hZ Business Phone (Include area code): 244-1905 q '/ Corporate Phone: ( 4 ) 7/ %� , g96 Local manager include name and a phone): v L i ' /7 0/0 (360) 6-$3 - 5996 indicate ownership sta s: ❑ Individual ❑ Partnership f orporation ❑ Non-profit Lis ners, partners or officers: Title Residence Address City /State/Zip Phone Is your Door -to -door solicitation? %No ❑ Yes business: Telephone solicitation? ,�No ❑Yes Contractor based outside City? JNo ❑ Yes if "Yes ", show jobsite address In spacd below Operated from your Tukwila residence? ❑ No ❑ Yes If "Yes ", read information on reverse side and sign Any gamblnng and/or gambling devices on premises? �No "❑ Yes Any cement devices on premises? No ❑Yes No. of devices: Description of business (give details; also, list types of products sold or stored): Office for Trucking /Whse Will retail sales be conducted? ❑ Yes Flo Size of floor space used: .� sq. ft Original opening date of business In Tukwila: 11/20/95 Total employees at Tukwila location, in lud. management: Full -time: 7 Part-time: / Number of employees in each type of employmen : Office: 7 Retail: Wholesale: Manufacturing: Warehousing: Other: ti/ . — 1 Do use/store /discharge flammable, hazardous, or biohazardous materials? No ❑ Yes If "Yes ", state type and quantity: In case of emer envy, notify: Phone 1 • 4y,40/ / 9 34126✓lT - - ,,,o 2 . .7lhl /I'VE ZS- - )0,7-027 Are you PRESENTLY doing any: construction or remodeling? No ❑ Yes Installation of commercial storage racks? / ItrNo ❑ Yes change of signage ?lo ❑ Yes If Yes .► Appropriate building permits M obtained prior t start of construction or rack installation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. Show 1998 City of Tukwila Business License # Renewal w* 98 -576 If business name has changed in past year, list former name: /YD Is your business use different than the previous use New business I+ of this building/space? ❑ Yes j to No. of CTR 'affected employees" at the site for which this business license application is filed: "-- (Read CTR Information on reverse side) tf veil are a new bulldlna owner or clannina to sell a building - please note fire alarm installation provisions on reverse side OFFICE USE Date: 1 -- t 3-51.9) ONLY Received by: J - -� LICENSE FEE (based on ❑ 0 to 5 $50.00 number of employees) ,' 6 to 100 4100 CHECK ONE 1 0 101 and above .... $200.00 Paid: ❑ Cash CA No.:3 ° Receipt No.: ? J' 9 ' WA State Sales Tax No. or UBI number (9 digits): L(6Z "57803722'/ Building: ❑ Building/sign permit attached Planning: Zoning designation: I certify the information contained herein is correct. 1 understand that any untru - - tement Is cause for revocation • my !cense. Police: Fire: Signature: Date issued: Print Na , 1999 License No.: X 1 ° 1 - 1� 1 Title /Office: / r:,'. . /r.:-■ City of Tui wila 6200 Southcenter Boulevard Tukwila, Washington 98188 -2599 (206) 433 -1800 This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 3111 Appii3tion for 1999 City Business License FILL OUT THIS FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED Please return completed application with fee to Tukwila City Hall at address shown above, Attention: City Clerk's Office Business License: RENEWAL ❑NEW Application Date: lZ 45 - 9 Business Name Express/Sim Express /Si : Local. Street 12 677 E MARGINAL WY S Address . SEATTLE WA 98168 -2562 (B to sure Include zip code+ 44 /glt extns Ion) Local PO box & zip, if applicable Corporate Address: �`� d i / RniVa '�rrR a e 0,P s >Cer, / L z Business Phone (Include area code): 244-1905 Corporate Phone: Local manager (include name and hone -Phone): Z / 4/e/5 / ) a5 5- 3p"�� Indicate ownership status: ❑ Individual ❑ Partnership ❑Non-pro fit Ust wners, partners or officers: �— J Title Residence Address City/State/hp Phone Is your Door -to -door solicitation? ;lo ❑ Yes business: Telephone solicitation ?, 181No 0 Yes Contractor based outside City? yNo ❑ Yes if "Yes ", show Jobsite address In space below Operated from your Tukwila residence? ,No ❑ Yes If "Yes ", read Information on reverse side and sign Any gambling and/or gambling devices on premises? Jk'No , Yes Any amusement devices on premises? )10f Yes No. of devices: Description of business (give details; also, list types of products sold or stored): Office for Tru /Whse Will retail sales be conducted? D Yes No Size of floor space used: 9 s Original opening date of business In Tukwila: 11/20/95 Total employees at Tukwila location, includ. management: ? Full -time: / Part -time: Number of employees in each type of employment: Office: 5 Retail: � / /!//C/ Wholesale: Manufacturing: Warehousing: Other: 2 .�� " Do you use /store /discharge flammable, hazardous, or biohazardous materials? Flo 0 Yes If "Yes ", state type and quantity: In case of emer ency, notify: hone 1 • ` 4.r. � a 4 7.71 �" Lr ' 2. fi t; %may / 7Xek,KAtm9 ( J Are you PRESENTLY doing any: construction or remodeling? fo ❑ Yes installation of commercial storage racks? )1414o ❑ Yes change of signage? %No ❑ Yes If Yes .■ Appropriate building permits MUST be obtained prior to start of construction or rack installation. Separate sign permits required. Copies of the final approved permits MUST accompany this application. Show 1997 City of Tukwila Business Ucense it Renewal Imo 97 - 1196 If business name has changed in past year, list former name: Is your business use different than the previous use New business - of this building/space? ❑ Y No. of CTR 'affected employees" at the site for which this business license application is filed: (Read CTR information on reverse side) N vn„ am D raw hulldinn owner or alannlna to " ell a build/no - please note fire alarm Installation provisions on reverse side OFFICE USE Date: _ z / i ONLY Received by: LICENSE FEE (based on ❑ 0 to 5 0 number of employees) i 6 to 100 $100.00 CHECK ONE 11 ► • 101 and above .00 Paid: ❑ Cash TL Check No.: 3 2'7 - Receipt No.: VV 706b WA State Sales Tax No. or /a6'.f' UBI number (9 digits): %�.t ? Building: Planning: Zoning designation: I certify the Information contained herein Is correct. I understand that any untrue statement Is cause for revocation - • license. • Building/sign permit attached Police: Fire: Signature: ' , /Ilk ��- - �_ Date issued: 1, 7 q g Print Named � WA atfcCh 1998 License No.: t 5-7/ Title /Office: 45e-r Cary of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188 -2599 (206) 433 -1800 Appli_4ition for 1998 City Business License FILL OUT THIS FORM IN ITS ENTIRETY INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED This is an APPLICATION ONLY, and NOT a license to conduct business. You must obtain a business license PRIOR to conducting business. ALL LICENSES EXPIRE DECEMBER 31 Plaacc+ rptrrrn - mmniated anolication with fee to Tukwila City Hall at address shown above, Attention: ty Clerk's D ice 6 -4 -79 1 MOTION NO. 2 I A MOTION concurring with the recommendation of the Zoning and Subdivision Examiner 4301 Introduced by: Councilman Grant 5 3 1 to approve ML -P in lieu of M -L subject to conditions the application for reclassification 4 I petitioned by EDWIN J. BECKPR 5 and designated File No. 278 -79 -R 6 BE IT MOVED by the Council of King County: 7 1 This Motion does hereby adopt and incorporate herein as 8 its own findings and conclusions the findings and conclusions 9 contained in the report of the Zoning and Subdivision Examiner 10 dated May 18 , 19 7g which was filed with the 11 Clerk of the Council on June 4 , 19 79 12 to approve ML-P in lieu of M-L subject to conditions 13 the application for reclassification 14 petitioned by EDWIN J. BECKER 15 designated by the Building and Land Development Division, 16 epartment of Planning and Community Development File No. 17 228-79-R , and the Council does concur with the 18 ecommendations contained in said report. 19 PASSED at a regular meeting of the King County Council 20 his 10day of 21 KING COUNTY COUNCIL 22 KING COUNTY, WASHINGTON 23 24 25 '• TTEST : 26 Epu ..2lIrk of the Council 28 29 30 31 32 33 19 airman BILL REAMS, Dist. No. 3 •v BERNICE STERN, Dist. No. 4 RUBY CHOW, Dist. No. 5 MIKE LOWRY, Dist. No. 6 PAUL BARDEN, Dist. No. 7 BOB GREIVE, Dist. No. 8 GARY GRANT, Dist. No. 9 NOTICE OF ACTION BY THE. KING COUNTY COUNCIL ON RECOMMENDATIONS OF THE ZONING AND SUBDIVISION EXAMINER Bruce C. Laing & Subdivisivu Examiner Room E -189, King County Courthouse Seattle, Washington 98104 344 -3460 June 20, 1979 RE: Building and Land Development File No. 228. -79 -R Proposed Ordinance No. 79 -240 EDWIN J. BECKER; ML (PUDj to ML —P On , 19 the Council passed Motion No. approving the above referenced application. On 19 the Council passed Motion No. denying the above referenced application. On June 11 , 19 79 the Council passed Motion No. 4301 concurring in the recommendations of the Zoning and Subdivision Examiner on the above referenced item. The Council will not take final action on the ordinance until the applicant has presented to the Building and Land Development Division, Room 450 King County Administration Building, evidence showing satisfaction of the conditions contained in the Examiner's report, which was previously transmitted to parties of record. If the conditions have not been satisfied by December. 11 , 19 79 , the Building and Land Development Division will taken action to close the file on the application. BCL : cmp cc: Parties of Record Building and Land Development Division Transmitted to; Edwin J. Becker James L. Stretch Luci Reimann Ruth Bernhardt Sharon Mann Brian Kennedy Beverly Nicholson Sharon Bernhardt Ray Catron Phillip Hemenway Mae E. Sharp M/M Laurel L. Lang and Steven M. Louveln L. Lautenschlager Lillian Woolbert Mrs. Harriet Norman Rhoada E. Cook Bernice Ross Shirley M. Robinson Burdette & Coleen Anderson City of Tukwila, Edgar Bauch and Ruth M. Breed Mrs. Marie Francis John J. Romero E. J. & Deborah Ness John A & Linda Kurtti Lang Fred Satterstrom J3ruce C. Laing ZONING AND SUBDIVISION EXAMYNER Mrs. Mary M/M Richard Barnhart • M/M John B. Stetson Iii Edward Lucero G. - S. Delahunt Mrs. Douglas Perrine Donna Meagher Water District No. 125 K. C. Planning Division, Karen Rahm Curtis Robinson King County Executive Randy Revelle Department of Planning and Community Development Holly Miller, Director Mr. Edwin J. Becker 12677 East Marginal Way South Seattle, WA 98168 RE: 228 -79 -R - EDWIN J. BECKER Ordinance No. 7121 Dear Mr. Becker: March 13, 1985 The King County Council has enacted the attached ordinance granting a change of zoning from M -L (PUD) to M -L -P. Ordinance No. 7121 was effective February 25, 1985. GWM:tss Attachment Sincerely, ,4. • GERALD W. MARBETT Supervisor DEVELOPMENT CONTROLS Building & Land Development Division 450 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) 344-7900 !January 11, 1979 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 28 29 30 31 1 r r ,, 5 A 5 9 D Introduced by: <<LU %.."':i Proposed Ordinan ORDINANCE NO. 4Oiq AN 'ORDINANCE amending King County Zoning Resolution No. 25789, as amended, by amending the Zoning Map thereof reclassifying certain property thereof at the request of J. R. Catron, Building and Land Development Division File No. 261 -78 -R. BE IT OFDAINED BY THE COUNCIL OF KING COUNTY: SECTION 1. J. R. Catron petitioned on March 23, 1978, that the property described in Section 3 below be reclassified from SR and SR (Potential CG) to ML and this application was assigned Building and Land Development Division File No. 261 -78 -R. SECTION 2. The report and recommendation of the Building and Land Development Division was transmitted to the Zoning and Sub- division Examiner on July 20, 1978, and hearing was held by the Examiner on the matter July 27, 1978. The report of the Examiner was filed with the Clerk of the King County Council on August 25, 1978, and the Council approved the reclassification by Motion No. 03796 on October 23, 1978, subject to conditions which will be satisfied per the "P" suffix. SECTION 3. The legal description of the property to be re classified is attached as Appendix A and is hereby made a part of this ordinance. The above described property is shown on the at- tached map which is designated Appendix B and is hereby made a part of this ordinance. SECTION 4. The King County Council does hereby amend King County Zoning Code, Resolution No. 25789, as amended, by reclassi- fying that property described and shown in Section 3, Appendices A -1- i 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 28 29 30 31 and B above, to CG -P and directs fied to so designate. 4. SECTION 5. This reclassification is granted subject to condi- tions adopted in Motion No. 03796 and said conditions are incor- porated herein as though fully set forth herein. INTRODUCED AND READ for the first time this 4(1 day of 4.,7k_e_/ , 19 PASSED this ... 6- day of v -;':241,1CC.e,r� , 19 i . KING COUNTY COUNCIL KING COUNTY, WASHINGTON ATTEST: 1 DEPUTY Clerk p the Council APPROVED this day of that Area Map W 15 -23 -4 be modi- -2- KING COUNTY EXECUTIVE DEEMED EPIACTE+D \+!ITHOUT COUNTY EXECUTIVE'S SIGNATURE. DATED: 212 OVERALL LEGAL DESCRIPTION: FILE NO. 261 -78 -R APPENDIX A The east 264 feet± of the following described: Tracts 1 to 10 inclusive, except the west 20 feet of Tracts 3 and 4, and Tracts 14 to 24 inclusive, vacated Essico Addition to Riverton, according to plat recorded in Volume 33 of Plats, Page 49, in King County, Washington; TOGETHER with the vacated 30 foot street between lots 1 and 22 lying south of the south margin of South 128th Street, EXCEPT that portion of the south half of vacated Riverton Place abutting and adjoining vacated lots 11 and 13 of said plat. Less County roads. 41)1x6 • Members of the i:ir , ;ounty Council Tracy J. Owen :,coat Blair B i.11 Reams Lois North Ruby Chow Bruce Lain. Paul Barden R. R. Bob Ureive Gary Grant Re: Duilding and Land Levelopreent Files N Ldwi.r J. Becker Thank you for your prompt attention. 13422 40th Avenue South Seattle, Washington 98168 October 27, 1980 r Troia is to notify you that the conditions set forth by the County in approving the reclassifications in the above numbered files Have not been satisfied. The time period specified has elapsed by almost a year. There are flagrant violations which are detrimental to the surrounding SR zoned community. It is respect- fully requested that the council take action to close the above numbered files and deny the reclassifications. The attached excerpts from King County files highlight previous action in this matter. Further investigation by the Council should .include the new code enforcement file, number 80 - 781. Please inform us of the action taken. cc Edward B. Nand, Manager, BALD [/ rYir. i'+ arbe tt, BALD Norm Peterson, Code Enforcement John P. Lynch, hept. Of Planning & Community Development Z12.1c1-1., /• - 2.2 / 4 a. ,r2, `, Cr ) ) 44:y /// k.\A\ ( fjcLu. 130 _32LO ) / 11e/ J. ,eff2__z 9 . • / z L4- Y-\\\ (\ .k GIN - /7- „( . I 3 3 19 - -2 , /133/ 3 -/ 2, i&v 7 (La A. - ss Sc, /„ ;-;-- /2 45 • (as __5:81 Pe -4 e7e.-a Se le 9 Ts 1 (Is 5 96 -;4 2 7 1 /3-3 A 150 4t4t12 S 1 ( c9 4. - 9P/ t3c, , )a C ` /l .A, / c - cie.c4). iJ-:;e64/; 2* ?/ d s ?S' d 2 . /30 " C 21..E ICJ . J .-(2‘ „7„ se-, - _c• T; s SE:97 __ - X16 I 1 s r lu.► --) ;S. dcAra(L} 9'iJ 1( : ,,Iir L - - 3 (%) -/ / - q 11/‘ e-fizI/ 6; ,c;e42ier C n/ 2 • , A ; 4/7,e . . 7F/Z- 4- e-: c- 5- t, ( /t1 A - 3 e,e Cc?o,, _7d1 to /go E ons C - ' per -y F . / - 75' M-H S -R no S -R RS -7200 Applicant: EDWIN J. BECK.ER •Zone Change: M - L (PUD) to M - L - P STR: W 10 -23 -4 1'I / / / i / / l i� Proposed Reclassification CG S -R s - e N RS -7 LCD s. S -R S-.R S -R S -R S -R OL W I) ti s- � 12 441) M -H S-R 1 M•l S -R 1 srh. S -R S -R M -H S -R S -R S -R 411 • ft) W ce 1 W M -H S-R S-R S -R C- , o 2 ec ST M -L 130T" RM -900 C -G S -R ST. B -N S -R • EMI S-R 0 1• ui S -R S -R S -R I3 3" 5- 0•4•!00 116 -imemm imsal S-R ST- S -R S -R W S -R cx s Tw . ST 133RD S N L.; > 8 H OL ID M -P 5 - �v 220.74 M-H • UNCLASSIFIED M H USE PERMIT 4117.70 :60•7. ST FILE 228 - 79 - R S - R APPENDIX B P' 400' S-R S -R ta$NICE STERN. Ow. No. 4 ' RUOY CHOW Oist. No. r ?AWE LOWRY, Ow. No. 6 PAUL CARDEN, O st. No. 7 0013 GR Dist. No. 8 GARY GRANT, Oist. No. 9 RE: Building and Land Development File No. 22£1-79 -R Proposed Ordinance No. 79 -240 EDWIN J. BECKER; ML (PUb) — to ML -P On 19 the Council passed. Motion No. approving the above referenced application. On 19 the Council passed Motion No. denying the above referenced application, On June 11 , 19 79 the Council passed Motion No. 4301 concurring in the recommendations of the Zoning and Subdivision Examiner on the above referenced item. The Council will not take final action on the ordinance until the applicant has presented to the Building and Land Development Division, Room 450 King County Administration Building, evidence showing satisfaction of the conditions contained in the Examiner's report, which was previously transmitted to parties of record. If the conditions have not been satisfied by December 11 19 79 Land Development Division will t}:en o act t on o the Buildi application. BCL : cmp Transmitted to: Edwin J. Becker James L. Stretch Luci Reimann Ruth Bernhardt Sharon Mann Brian Kennedy Beverly Nicholson Sharon Bernhardt Ray Catron Phillip Hemenway Mae E. Sharp M/M Laurel L. Lang and Steven M. Louveln L. Lautenschlager Lillian Woolbert Mrs. Harriet Norman Rhoada E. Cook Bernice Ross Shirley M. Robinson Burdette & Coleen Anderson City of Tukwila, Edgar Bauch and Ruth M. Breed Mrs. Marie Francis John J. Romero E. J. & Deborah Ness John A. & Linda Kurtti NOTICE OF ACTION BY TILE. KING COUNTY COUNCIL ON RI COI.NENDATIONS O1' THE ZONING AND SUBDIVISION EXAMINER cc: Parties of Record Building and Land Development Division I3ruce C. Laing ZONING AND SUI3D1VISION EXAM NER Lang Fred • .) Iloonl E-180, Kind County Courinouse Seattle, l'IJ.aitIJton 08104 344.3460 June 20, 1979 Satterstrom I '.; ::Jt�r/(lt 1 'l' , /It LAG ltt zner Mrs. Mary Siccardi M/M Richard Barnhart M/M John B. Stetson III Edward Lucero G. S. Delahunt Mrs. Douglas Perrine Donna Meagher Water District No. 125 K. C. Planning Division, Karen Rah Curtis Robinson y1 . -7 (0 • APPLICANT: Edwin J. Becker FILE: 228 -79 -R ENVIRONMENTAL ASSESSMENT A. SUMMARY OF PROPOSED ACTION: This is a request to change the zone classification of the subject property from ML (PUD) to ML -P in order to expand a building beyond the limitations placed on the subject property through the Planned Unit Development procedure. B. GENERAL INFORMATION: Owner /Agent: Location: DEPARTMENT OF PLANNING & COMMUNITY DEVELOPMENT BUILDING AND LAND DEVELOPMENT DIVISION ENVIRONMENTAL ASSESSMENT AND ADDENDUM REPORT TO THE ZONING & SUBDIVISION EXAMINER MAY 8, 1979 - PUBLIC HEARING Existing Zone: Requested Zone: STR: Size: Water District: Sewer District: Fire District: School District: C. HISTORY: D. ANALYSIS: Edwin J. Becker 12677 E. Marginal Way South Seattle, WA 98168 Phone: 246 -9500 Lying on the northwest corner of East Marginal Way South and South 128th Street. ML (PUD) ML -P W 10 -23 -4 1.91 acres #125 Val Vue #18 South Central 0 Oda Item . p - 79 King Canty 1 Examiner • t 1. The hearing on this matter was continued on March 22, 1979, in order to allow the applicant to prepare a more detailed site plan and for the King County Traffic Division to complete a traffic study relating to East Marginal Way. 2. The applicant submitted a site plan on April 9, 1979, and a memo from John J. Logan regarding traffic was received on April 10 1979. 1. In reference to the traffic study that was done for East Marginal Way S., Jerry Marbett of this Division received a memo from John J. Logan, Acting Traffic and Planning Engineer on April 10, 1979, that states the following: "The above - mentioned portion of East Marginal way within King County was reconstructed during the early 1979's under a Urban Arterial Board funded project. It was constructed as a community arterial 1 classification which allowed for a forty four (44) foot section of road surface with curb, gutter and sidewalks. "The road was marked and remains today as two (2), twelve (12) foot lanes with ten (10) foot parking lanes except abutting the Metro South. Operating Base and Rainier Service Center where a two -way lane was provided. The portion of the subject route in the City of Tukwila (S 133rd Street) from approximately 42nd Avenue S. overcrossing easterly to Interurban Avenue S. (State Route 181) has been widened to two (2 twelve (12) foot lanes with no parking lane or sidewalks. ILF FILE: 228 -79 -R "The function of this route is to collect and distribute traffic from higher type arterial highways to less im- portant streets or directly to traffic destinations; to serve traffic from neighborhood to neighborhood within a community; commercial to industrial areas; and to serve secondary traffic generators such as a neighborhood shopping area or schools. "Existing traffic volumes are lower than the design is capable of handling. The latest counts taken by the County in December 1978 show an average of about 3800 vehicles from Interurban Avenue intersection on the north to S. 130th Street and 40th Avenue S. At this location the traffic almost splits 50 -50 with 50% going toward State Route 181 interchange area and the remain- ing 50% going southerly on 40th Avenue S. "This distribution confirms that functional usage is to direct traffic destinations. Directly north of the Interurban Bridge at S. 115th Street the traffic volume is 11,568 with 9,160 vehicles going southerly across the bridge with a split of 3800 vehicles to East Marginal Way and 7,330 vehicles to Interurban Avenue S. "The highest accident frequency occurred at the inter- section of East Marginal Way and Interurban Avenue S. In a three year period there were thirteen (13) recorded accidents. Since the redesign and signalization of this intersection, this frequency has declined. "The second highest accident frequency occurred at the intersection of East Marginal Way and S. 130th Street. There were nine(9) recorded accidents in the same period. This intersection has been changed to four -way stop due to the high frequency of right angle accidents. "The intersection of East Marginal Way and Interurban Avenue S. was reconstructed, channelized and signalized during the construction of the Metro South Operating Base. The channelization does cause some restriction with turning movements of large truck - trailer rigs. "In summary the subject route is capable of handling the existing traffic and any future traffic volumes using this arterial. We recommend against any restriction to use of this route going south from the light in- dustrial area. A restriction of this type could cause undue congestion at the intersection of East Marginal Way and Interurban Avenue S." 2. The site plan submitted by the applicant shows the pro- posed building expansion (40'x69.6') and parking for 34 vans and 31 semi- trailers. The plan also shows a new entrance near the southwest corner to accommodate the addition to the building. 3. The Highline Community Plan, adopted by the King County Council in December, 1977, contains the following landscaping guidelines for industrial property (page 35, HCP). "(f) Industrial developing adjacent to business or commercial: Type II planting strip, 10 feet in width; "Type II Mixed trees, shrubs and low plantings. "This planting strip should be designed with a mix of evergreen shrubs and trees, with trees spaced a maximum of 5 feet on center and with minimum height of 4 feet. The mixture of plantings and bark or decorative rock should provide a total ground cover within 2 years. "(g) Industrial developing adjacent to 'R' or 'S': Type III planting strip, 20 feet in width; -2- A. CONCLUSIONS: B. RECOMMENDATION: "Type III Wall of Trees. "The living wall should be composed of conifer trees with such maturity and spacing to form an effective visual barrier within 2 years. The trees should cover the full depth of the planting area. Minimum tree height is 6 feet." CONCLUSIONS & RECOMMENDATIONS FILE: 228 -79 -R 1. Environmental Significance: Pursuant to the State En- vironmental Policy Act of 1971 and the SEPA Guidelines as revised January 21, 1978, the Manager of the Building and Land Development Division adopted the proposed declaration of non - significance as a final declaration, after being circulated for 15 days and reviewed by all agencies of jurisdiction. Based upon the responses of the agencies of jurisdiction and all other reviewing agencies, a site inspection of the project, information submitted by the applicant, and an evaluation of the affected natural, physical and social systems as outlined in this report, the Manager of the Building and Land Development Division reconfirms this final determination and does not require an environmental impact statement. 2. The subject request meets the policies of both the Com- prehensive Plan and the Highline Community Plan with respect to the location of industrial uses. When the original zoning on the site was granted in 1970 it was done so subject to certain land- scaping and buffering requirements to lessen the impact of an industrial use in a single family area. Although these requirements have been modified (May 6, 1978, Ordinance. 3966) it is still appro- priate to specify landscaping guidelines for the property. 3. Since the approval of this case in 1970, the area surround- ing the subject property, especially to the north, has been devel- oped with more industrial uses. The Highline Community Plan reflects and re- enforces this increased amount of manufacturing uses. The key is to provide a transition from this type of land use and the single family areas adjacent. 4. The memo from the Traffic Division indicates that East Marginal Way S. is sufficient to handle the present and anticipated traffic load on the roadway. Therefore, this Division would not recommend any changes in the traffic pattern with respect to the applicant's property. 5. One of the main issues with the subject request is the expansion of the applicant's operation. The operation has ex- panded since the original reclassification and PUD. request which precipitated a request for C -G zoning to the south to allow for employee parking. Mr. Becker stated at the last hearing that the expansion of the building was necessary due to a change rather than an increase in his operation. It is the opinion of this Division that if the applicant anticipates additional expansion beyond the current proposal he should consider relocation. (Note: The land south of the subject property is restricted to use as an employee parking area. Truck parking is prohibited.) Approve ML -P in lieu of ML subject to the following conditions: Pre- ordinance condition: The applicant shall fulfill the necessary requirements to receive site plan approval on the prop- erty to the south (File 261 -78 -R) Post - ordinance conditions: 1. The applicant shall supplement the existing landscaping to meet the requirements of the Highline Plan. -3- a. Type II landscaping along the south property line as far west as the proposed entrance. b. Type III landscaping for the remainder of the south property line and the north and west property lines. c. Planting along the east is sufficient but shall not be decreased. (See D -3 above as to character of planting required under Type II & III.) 2. Expansion of the building shall be limited to the proposed expansion (40'x69.6') 3. No additional building(s) shall be allowed on the site. 4. A cash bond may be required at the time of the building permit for insurance of landscaping. TRANSMITTED to parties listed hereafter: fj/- 25 - 7y A( Edwin J. Becker 12677 E. Marginal Way S. Seattle, WA 98168 Phillip Hemenway 4036 S. 128th Seattle, WA 98168 Burdette & Coleen Anderson 12630 - 34th Ave. S. Seattle, WA 98168 Edward Lucero 13219 E. Marginal Way S. Seattle, WA 98168 Shirley M. Robinson 13422 - 40th Ave. S. Seattle, WA 98168 Mr. & Mrs. John B. Stetson, III 13258 - 40th Ave. S. Seattle, WA 98168 Ray Catron 3717 S. 128th Seattle, WA 98168 Bernice Ross 13025 - 38th Ave. S. Seattle, WA 98168 Mr. & Mrs. Richard Barnhart 3704 S. 126th Seattle, WA 98168 Sharon Bernhardt 3418 S. 126th Seattle, WA 98168 Rhoada E. Cook 13038 - 38th Ave. S. Seattle, WA 98168 Mrs. Mary Siccardi 3535 S. 126th St. Seattle, WA 98168 Beverly Nicholson 3810 S. 130th Seattle, WA 98168 - Mrs. Harriet Norman 4123 S. 130th St. Seattle, WA 98168 John A. & Linda Kurtti 12615 - 37th S. Seattle, WA 98168 Brian Kennedy 12802 - 37th S. Seattle, WA 98168 Lillian Woolbert 12800 E. Marginal Way S. Seattle, WA 98168 E. J. & Deborah Ness 3528 S. 130th Seattle, WA 98168 Sharon Mann 3404 S. 126th Seattle, WA 98168 John J. Romero 13308 - 42nd S. Seattle, WA 98168 FILE: 228 -79 -R Louveln L. Lautenschlager 13243 - 40th Ave. S. Seattle, WA 98168 Ruth Bernhardt 12527 — 35th Ave. S. Seattle, WA 98168 Mr. & Mrs. Laurel L. Lang Mr. Steven M. Lang 12801 - 35th S. Seattle, WA 98168 Mrs. Marie Francis 4049 S. 128th St. Seattle, WA 98168 Luci Reimann 13212 - 38th Ave. Seattle, WA 98168 261 -78 -R Page 4 2. Approval of this application will constitute a "major action" under the provisions of R.C.W. 43.21C and W.A.C. 197 -10. The applicant submitted an environmental © hecklist with the application. After reviewing the environmental checklist, the Manager of the Building and Land Development Division made a threshold determination that approval of this application will not have a significant adverse impact upon the quality of the environment and that an environmental impact statement is not required. The Building and Land Development Division transmitted a proposed declaration of non - significance to other agencies with jurisdiction on June 16, 1978. After theelapse of fifteen days following the transmittal and after reviewing comments submitted by agencies with jurisdiction and by other parties, the Manager of the Building and Land Development Division adopted the proposed declaration as a final declaration of non - significance. At the public hearing on this application a representative of the Building and Land Development Division reported that having considered the comments and testimony by agencies with jurisdiction and by other parties, having visited the subject property, and having evaluated the natural and social systems related to this.,application, the Building Land Development Division reaffirms its determination that approval of this application will not have a significant adverse impact on the quality of the environment and an environmental impact statement is not required. 3. The purpose of the request is to allow parking for employees of the adjacent transfer and storage company in the easterly one -third of the property and parking for transfer trucks and trailers in the central portion. The most westerly portion is intended to be leased or sold for other light manufacturing purposes. 4. The subject property was zoned SR and SR (Potential CG) at the time of the Highline Area Zoning Study, adopted by Resolution No. 34529 on December 11, 1967. Prior to that time the zoning on the subject property was R7.2 (Residential Single Family District). There is no indication in the record that a more intensive zoning classification than the above was requested or considered during the 1965 area zoning. 5. The property directly north, across 128th Street from the westerly 400 feet of the property, was reclassified ML subject to screening conditions in 1977 (249- 74 -P). This property, which is occupied by the intended lessee or purchaser of portions of the subject property (the Becker Transfer Co.), has placed about 510 trees and shrubs in the required peripheral screening of that site. The owner of this firm advised that the company has experienced considerable growth the past years and is seeking additional employee and truck parking space. The present parking area is fully occupied by both, and employees are parking.on the surrounding streets. 4. ML permits both types of but CG would limit the expansion to employee o parking, parking lots. 6. The applicant asserted that industrial expansion in the immediate area is inevitable because of the proximity of industry to the north and the ready access to new freeway and industrial expressway routes. 7. Opponents who filed letters or testified at the hearing are seeking to preserve an existing residential area to the south and west of the site. Testimony indicated that many young families with elementary age children live in the area and attend a nearby school. They are concerned about the truck traffic and the gradual erosion of the line of demarcation between residence and industry. 261 -78 -R Page, 5 8. The Highline Communities Plan indicates general commercial for the easterly 370 feet more or less of the property and residential for the westerly 160 feet more or less. This designation corresponds with the existing potential zoning on the property. Ordinance 3747 requires, during the interval between Community Plan adoption and Area Zoning adoptions that reclassification requests in the Highline Area be judged by the Community Plan. The Highline Area Zoning has not been adopted as yet. 9. The application for ML is opposed by the Cities of Seattle and Tukwila CONCLUSIONS: 1. Based upon the whole record and according substantial weight to the determination of environmental significance made by the Division of Building and Land Development, it is concluded that approval of the subject action as recommended below, would not significantly affect the quality of the environment. All evidence of environmental impact relating to the proposed action and reasonable alternatives to the proposed action have been included in the review and consideration of the subject action. 2. The request for ML is inconsistent with the Highline Communities Plan and would have an unreasonable impact on an existing residential community. .} 3. The reclassification to CG -P with certain limitations and conditions would carry out the Highline Communities Plan and would be consistent with the intent of the 1965 area zoning. 16.' 4. Screening, landscaping and restoration of graded land outside of the potential CG property is essential in order to establish a more definite and defensible line of demarcation between residential and non - residential uses. RECOMMENDATION: 4 Approve CG -P in lieu of ML for the eastern 264' of the subject property subject to the following post- ordinance conditions: 1. A plot plan to be approved by the Division of Building and Land Development showing circulation, access and.parking layout. 2. A landscape plan showing a minimum landscape strip of 20' along the west and south property lines and 10' along South 128th Street • as required by the adopted Highline Plan (page 35)(e). 3. A bond, the amount to be determined at the time of the plat plan submittal to insure the installation of the approved landscaping. 4. A plan for the restoration of ground cover in the westerly third of the subject property and, where feasible, on .the cut slopes of the south and west boundaries of the applicant's ownership. ORDERED THIS 10th day of August, 1978. Robert A. Eveleigh DEPUTY ZONING AND SUBDIVISION EXAMINER 8 -25 -78 31 32 33 6 7 8 9 10 13 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 1 2 3 4 5 uci Jj ATTEST: 76 NOV 8 P 3: 30 EVELOp MOTION NO. 03796 Introduced by: Councilman Dunn (7C A MOTION concurring with the recommendation of the Zoning and Subdivision Examiner on the application for reclassification petitioned by J. R. CATRON and designated File No. 261 -78 -R • BE IT MOVED b the Council of King County: This Motion does hereby adopt and incorporate herein as its own findings and conclusions the findings and conclusions contained in the report of the Zoning and Subdivision Examiner dated August 10 , 19. 78 which was filed with the Clerk of the Council on August 25 , 19 78 , regarding the application for petitioned by J. R. CATRON designated by the Building and Land Development Division, Department of Planning and Community Development File No. 261 - 78 - R , and the Council does concur with the recommendations contained in said report. PASSED at a regular meeting of the King County Council this .Z3 /Z'` ' day of 19 7(r. KING COUNTY COUNCIL KING COUNTY, WASHINGTON (,„ erk of the Council 11 I reclassification Chairman 1 - -t'ILE 261 -78 -R 4., Soils: Site preparation has been accomplished under grading permit #1936. M. SOCIAL IMPACTS: The approval of this request will further expand the industrial uses into an area that is presently zoned for single family residential density. A. CONCLUSIONS: REPORT AND RECOMMENDATION 1. Environmental Significance: Pursuant to the State Environ- mental Policy Act of 1971 and the SEPA Guidelines adopted December 12, 1975, the Manager of the Building and Land Development'Division adopted the proposed declaration of non - significance as a final declaration after being circulated for 15 days and reviewed by all agencies of jurisdiction. Based upon the responses of the agencies of jurisdiction and all other reviewing agencies, a site inspection of the project, information submitted by the applicant, and an evaluation of the affected natural, physical and social systems as outlined in this report, the Manager of the Building and Land Development Division reconfirms this final determination and does not require an environmental impact statement. 2. The subject request does not meet Comprehensive Plan Policy C -3 as the closest major arterial is located 1 -1/4 miles north of the subject property with existing access to a secondary arterial and a local access street. 3. This request does not satisfy Comprehensive Plan Policy C -5 and C -6 in that industrial uses would be incompatable with the existing single family residences to the west and south. 4. The CG zoning as shown on the adopted Highline Plan would provide for parking of employees automobiles but would not allow truck or trailer storage. 5. At the time of the adoption of the Highline Plan by the King County Council the subject was shown at a general commercial zone classification although the property to the north had been approved for ML zoning by the Council in 1975. B. RECOMMENDATION: Approve CG -P in lieu of ML for the eastern 264' of the subject property subject to the following post - ordinance conditions: 1. A plot plan to be approved by the Division of Building and Land Development showing circulation, access and parking layout. 2. A landscape plan showing a minimum landscape strip of 20' along the west and south property lines as required by the adopted Highline Plan (page 35)(e). 3. A bond, the amount to be determined at the time of the plot plan submittal to insure the installation of the approved landscaping. 4. Deny the remainder of said request. TRANSMITTED to parties listed hereafter: 7-19-7 ' J. Ray Catron, 3717 South 128th, Seattle, WA 98168 Edwin J. Becker, 16828 S.E. 28th, Bellevue, WA 98008 * * * * ** EBS:09:ss 7/17/78 This portion was marked "City Attorney Documents" Brandon Miles - Becker From: "Shelley Kerslake" <tukatty @ci.tukwila.wa.us> To: <bmiles @ci.tukwila.wa.us> Date: 5/3/0411:59AM Subject: Becker Trucking Brandon - when you talk to the neighbors of Becker trucking it will be important to find out the following information: How long they have lived at their property? Whether they are home all day or leave for extended periods of time? How clearly they can see the operation at the subject property from their residence? What type of activity they have seen on the property in the last year? Whether they kept notes or a journal contemporaneously with watching the property. ( how are they certain as to the time frames of lack of operation ?) When did the operation cease and how did they know that? What type of noise or activity was associated with the prior operation ?(how did they know the business was operating there) Whether they would be willing to testify in this matter. From this information we can put together affidavits for them to sign, attesting to what they told you. If you have any questions let me know. Shelley Kerslake Kenyon Disend, PLLC 11 Front Street South Issaquah, WA 98027 425 - 392 -7090 6 4 1 7 Mc21c Vole --- a.J( -)43- 0 5 a - 4. Acij14,1 r4)Vt4) Jt.toc_ ecker 417 uyo( (eh t Ov) 5w/city GPI Ir't 5 ,klovwl, _ j c c ,t Y 1 O(J4 14,j) POI 01 — ALAnIs it Y4 tit 5iF wriim Casl ( el r,ts5►,q. From: Shelley Kerslake To: Lumb, Carol Date: 11/21/03 12:55PM Subject: Re: Becker Trucking Carol - I think the memo is fine, if you attach the letters that explain the situation. I am still working on a memo for Jack regarding the abandonment of non - conforming use rights ( If I could ever have a day where something wasn't on fire - I might be able to finish it.) :) Anyway, the recent cases seem to indicate that where the local ordinance provides for a time frame to establish abandonment, if that time frame is established, that is prima facie evidence of intent to abandon the non - conforming use. The burden then shifts back to the property owner to demonstrate that the intent was not present. I think the process you have used in making your determination follows this idea. »> Carol Lumb 11/21/03 12:02PM >» Hi Shelley. I'm attaching a draft memo I'd like to send to Jane denying the business license renewal for Becker Trucking. Rather than go into all the history of the site, I was going to attach the two letters we've sent to Rolan Becker to provide the explanation of why we're denying the license. I'd appreciate your review of the memo. Do you think I should provide more detail in the memo to Jane? I would expect that Mr. Becker will appeal our denial of the business license so rd like to have a paper trail that supports the decision. Thanks much! Carol 01,L r _ ,\) 641irmiV (WA/ `t�.� wry tize/o-iA . October 23, 2003 MEMORANDUM TO: Shelly Kerslake, City Attorney FM: Carol Lumb, Senior Planner RE: Becker Trucking Business License Renewal Becker Trucking is a truck terminal business located in Tukwila. The business originally was located at 12677 East Marginal Way South in an area that was annexed to the City in 1989. The business moved to 6350 South 143 Street on April 17, 2002, a site zoned Commercial/Light Industrial (C/LI). Truck terminals are a use permitted outright in the C/LI district. On December 31, 2002, Mr. Roland Becker, the owner of Becker Trucking, applied for a renewal of the business license at the East Marginal Way location as well as a business license for the new location on South 143 Street. We would like guidance on whether we can deny the business license renewal at the East Marginal Way South location, based on the facts below and in the attachments provided. The properties that comprise the Becker Trucking site on East Marginal Way are zoned a mix of Commercial/Light Industrial (C/LI), Low Density Residential (LDR), and Neighborhood Commercial Center (NCC). A map is attached that illustrates the zoning (Attachment 1). The use as a truck terminal is a legal nonconforming use on the portions of the site zoned NCC and LDR and a permitted use in the C/LI district. The use of the NCC zoned portion of the site was the subject of a conditional use permit approved in 1994 that established conditions for the use of this parcel for parking of employee vehicles and trailers and semi - trucks. A copy of the Notice of Decision for the conditional use permit is attached (Attachment 2 A). The NCC zoned parcels were sold earlier this year to the Tukwila School District for their school buses (Attachment 2 B). On the business license renewal application (Attachment 3), the owner states that the site is not staffed but a loading dock is used to transfer freight between trucks and notes the main location of the business is on South 143 Street. Site visits indicate that the site is used to park semi - trucks and trailers. Photos of the site taken May 13, 2003 (Attachment 4) illustrate the use as of that date. Mr. Roland Becker Becker Trucking March 3, 2003 A truck terminal was operated on that site until April 16, 2002 at which time the truck terminal moved to its present location at 6350 South 143` Street. Truck terminals are a permitted use only in the Commercial/Light Industrial district; they are not permitted in the Low Density Residential district or the Neighborhood Commercial Center district. Until recently, the Becker Trucking truck terminal was a legal nonconforming use in those two districts, as it was established prior to those zones being applied after the area was annexed from unincorporated King County. For the purposes of determining when the "clock" started running on the cessation of the legal nonconforming uses on the East Marginal Way South site, the six month period began on April 17, 2002 and ended on October 17, 2002. During that time period we are not aware of business activity related to the truck terminal use taking place at the East Marginal Way South site. c: \mydocs \General \Becker Trucking 3 • WILLIAM JOHN CRITTENDEN ATTORNEY AT LAW Jack Pace City of Tukwila, Dept Community Development 6200 Southcenter Blvd Tukwila WA 98188 -2544 Jane E Cantu City of Tukwila, City Clerk 6200 Southcenter Blvd Tukwila WA 98188 -2544 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASHINGTON 98103 (206) 361 -5972 FAX: (206) 361 -5973 wjcrittenden@comcast.net August 9, 2004 Kathryn Stetson City of Tukwila, Office of Code Enforcement 6200 Southcenter Blvd Tukwila WA 98188 -2544 Re: Request for Public Records Property located at 12677 E. Marginal Way RECEIVED ED AUG 1 1 2004 CITY OF TUKWILA CITY CLERK Dear Mr. Pace, Ms. Cantu and Ms. Stetson: This is a request for public records pursuant to RCW Chapter 42.17. Please provide my office with true and correct copies of the following public records in the possession of any or all of your agencies relating to the property located at 12677 E. Marginal Way in Tukwila (hereafter, the "Property"): (i) All records relating to any complaint, inquiry or other correspondence to or from any person in the last 10 years regarding the condition or use of the Property; (ii) All records relating to any investigation or code enforcement action in the last 10 years with respect to the Property; (iii) All records relating to the question of the applicable zoning of the property and whether there were or are nonconforming uses on the Property in the last 10 years; and (iv) All records relating to applications for, issuance of, or denials of business licenses relating to the Property in the last 10 years. For purposes of this request, "public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. .RCW 42.17.020(36). For each record that you contend is exempt from public disclosure, please specifically identify the record by subject, title, author, custodian and date, and specifically state how the specific statutory exemption applies to the record as required by RCW 42.17.310(4). For each record that is only partially exempt from public disclosure, please provide a redacted copy of that record. Failure to comply with this request for public records may require you to pay attorney fees as well as mandatory penalties under RCW 42.17.340(4). See King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002). Please let me know if the cost of copying these records will exceed $100.00. You have five (5) days to respond to this request as required by RCW 42.17.320. Thank you for your attention to this matter. Very truly yours, Willim John Crittenden Page 2 of 2 August 12, 2004 Notes from Code Enforcement Dept. re: Edgmon & Son Trucking Records Request RFA04 -110 file attached Comments from 9 previous case files (1993 — 1999) attached. Files were destroyed per Records Retention Schedule. However, notes show a pattern of complaints regarding noise and other issues at the site. City Attorney can determine whether or not to provide copies of "comment" pages from Permits Plus for older files. September 1, 2004 City of Tukwila Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director William John Crittenden 927 North Northlake Way, Suite 301 Seattle, WA 98103 Re: Request for Public Record Dear Mr. Crittenden: The Department of Community Development is currently in the process of gathering the documentation you requested on August 12, 2004. In my letter to you, August 16, 2004, I indicated we anticipated having the documents ready for your review September 2, 2004. However, we are going to need additional time to gather the information you requested. We will continue working diligently to complete your request, as quickly as possible. We anticipate having the documents ready for your review or response, on or before September 15, 2004. We will call you as soon as the records are available. Your time and patience are appreciated as we work to fulfill your request. Sincerely, 2 4frgezi/L 6,4,0c1c__ Susan Brock Department of Community Development cc: iromfail Bob Baker 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 ittio 1906 • ,,,,,, �ugust 16, 2004 City of Tukwila ila Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director William John Crittenden 927 North Northlake Way, Suite 301 Seattle, WA 98103 Dear Mr.Crittenden: Re: Request for Public Record The Department of Community Development is in receipt of your request for public record/documents dated August 12, 2004. The Revised Code of Washington (RCW) requires prompt responses to requests for public record. The City has five (5) business days in which to respond by: • Providing for inspection and/or copying of the record(s); • Acknowledging receipt of the request and providing a reasonable estimate of the time necessary to respond; or • Denying the request. If a request is denied, a written statement must accompany the denial setting out the specific reasons therefore. Your request has been copied and distributed to affected departments for the gathering of necessary documents. Once gathered, the documents will be forwarded to the City Attorney's Office for review to ensure no portion of the documents are exempt from the public records statute. Therefore, we anticipate having the documents ready for your review or a response from the City Attorney's. Office on or by September 2, 2004. We will call you as soon as the records are available. Your time and patience are appreciated as we work to fulfill your request. Sincerely, C f Susan Brock Department of Community Development cc: Bob Baker Wynetta Bivens 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 -431 -3670 • Fax: 206 - 431 -3665 Jane E Cantu City of Tukwila, City Clerk 6200 Southcenter Blvd Tukwila WA 98188 -2544 Kathryn Stetson City of Tukwila, Office of Code Enfol 6200 Southcenter Blvd Tukwila WA 98188 -2544 Re: Request for Public Re Property located at 12 Dear Mr. Pace, Ms. Cantu and Ms. Ste This is a request for public records pt office with true and correct copies of any or all of your agencies relating to Tukwila (hereafter, the "Property"): WILLIAM JOHN CRITTENDEN ATTORNEY AT LAW 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASHINGTON 98103 (206) 361-5972 FAX: (206) 361 -5973 wjcrittenden @comcast.net August 9, 2004 Jack Pace City of Tukwila, Dept Community Development 6200 Southcenter Blvd Tukwila WA 98188 -2544 (i) All records relating to any complaint, inquiry or other correspondence to or from any person in the last 10 years regarding the condition or use of the Property; (ii) All records relating to any investigation or code enforcement action in the last 10 years with respect to the Property; (iii) All records relating to th.que„stioll of the applicabtc,zoningof the pro and w n :trier -there 1;or-are . rionconfo ing -u y ;s9`on °the Property. n t and AUG 1 2 2004 D CVE�M T S D ide my lion of Way in ) • . rte rds rel applicatigns_rfot ssuance„o f,..or denial ;yof bus ess ses relating the Propey1ie last 10 year For purposes of this request, "public record" includes any writing containing information Jack Pace City of Tukwila, Dept Community Development 6200 Southcenter Blvd Tukwila WA 98188 -2544 Jane E Cantu City of Tukwila, City Clerk 6200 Southcenter Blvd Tukwila WA 98188 -2544 Kathryn Stetson City of Tukwila, Office of Code Enforcement 6200 Southcenter Blvd Tukwila WA 98188 -2544 Re: Request for Public Records Property located at 12677 E. Marginal Way Dear Mr. Pace, Ms. Cantu and Ms. Stetson: This is a request for public records pursuant to RCW Chapter 42.17. Please provide my office with true and correct copies of the following public records in the possession of any or all of your agencies relating to the property located at 12677 E. Marginal Way in Tukwila (hereafter, the "Property"): (i) All records relating to any complaint, inquiry or other correspondence to or from any person in the last 10 years regarding the condition or use of the Property; (ii) All records relating to any investigation or code enforcement action in the last 10 years with respect to the Property; (iii) All records relating to the,quegforp of the applicab .zoning of the pro erty and w e er -thet& :Eare nonconfor ing s -on =the Property ftie=last VZ an WILLIAM JOHN CRITTENDEN ATTORNEY AT LAW 927 NORTH NORTHLAKE WAY, SUITE 301 SEATTLE WASHINGTON 98103 (206) 361-5972 FAX: (206) 361 -5973 wjcrittenden @comcastnet August 9, 2004 ) rree rds rel t g applications -for issuance vf,.or denials of business ses rela the Prope t 1ig last 10 year ' For purposes of this request, "public record" includes any writing containing information Page 2 of 2 relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. RCW 42.17.020(36). For each record that you contend is exempt from public disclosure, please specifically identify the record by subject, title, author, custodian and date, and specifically state how the specific statutory exemption applies to the record as required by RCW 42.17.310(4). For each record that is only partially exempt from public disclosure, please provide a redacted copy of that record. Failure to comply with this request for public records may require you to pay attorney fees as well as mandatory penalties under RCW 42.17.340(4). See King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002). Please let me know if the cost of copying these records will exceed $100.00. You have five (5) days to respond to this request as required by RCW 42.17.320. Thank you for your attention to this matter. Very truly yours, Wil m John Crittenden City of Tukwila Department of Community Development Steve Lancaster, Director Memo TO: Shelley Kerslake, City Attorney FROM Brandon Miles, Assistant Planner NA RE: Becker, Interview with Bob Edgmon DATE: February 24, 2005 At 9am on February 24, 2005, Carol Lumb and I met with Bob Edgmon of Edgmon and Son Trucking (Edgmon). Edgmon operated at the Becker facility on East Marginal Way from January of 2003 to October of 2004. Edgmon is a trucking company and only utilizes semi - trucks. They do not operate any vans or delivery trucks. According to Mr. Edgmon, he first looked at the Becker site in December of 2002. He noted that at the time Peter Becker was operating a flat bed trucking operation at the site. When Mr. Edgmon walked the site he noticed that there was a truck trailer parked on the gravel area along the western property line. This is the area of the property that is zoned LDR. Mr. Edgmon had numerous conversations with Puget Sound Reality (PSR) who was the realtor for the Becker Trust. PSR noted to Mr. Edgmon that there were not restrictions on the property, that the entire property was commercial and vested to have a truck terminal. According to Mr. Edgmon, PSR was aware of the non - conforming issues related to the LDR portion of the property. Mr. Edgmon was informed by PSR that he needed to keep vehicles and equipment parked on the western gravel area or the non - conforming rights would be extinguished. Mr. Edgmon used the western gravel area from January of 2003 to October of 2004 to park semi - trucks and semi - trailers. Mr. Edgmon also mentioned that when Becker Trucking operated on the site that they also stored trucks on the property. Prior to purchasing the site Mr. Edgmon asked for a good faith letter from Becker regarding the soil contamination on the site. Mr. Edgmon also asked that the zoning issues be resolved prior to him purchasing the site. Mr. Edgmon later learned that there was contamination still present on the site. He noted that his bank had concerns with contamination and would not provide financing (It was just not the zoning issues that made him back out of the deal). Steven M Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 Mr. Edgmon met with Edwin Becker on numerous occasions. Mr. Becker would often give Mr. Edgmon advice on how to deal with the City regarding the non - conforming status of his property. Mr. Becker told Mr. Edgmon that the City does this every so many years and that to just tell them you are going to sue and get the lawyers involved and they will back off. Mr. Edgmon would be willing to testify at the upcoming hearing. Bob Edgmon Edgmon and Son Trucking 2550 S. 102 St. Tukwila, WA 98168 (206) 658-1057 Department of Community Development Steve Lancaster, Director Memo TO: Shelley Kerslake, City Attorney FROM Brandon Miles, Assistant Planner ( RE: Becker, Interview with Troy Wallin DATE: February 24, 2005 At 1:30 PM on February 24, 2005, Carol Lumb and I met with Troy Wallin at City Hall. Mr. Wallin lives at 12607 East Marginal Way South, north of the Becker Trucking Site. Mr. Wallin has lived at the location for approximately six years. Mr. Wallin noted that the primary use of the parking area to the west, which is zoned LDR, was to park semi - trucks and semi -truck trailers. He noted that this occurred nearly 50 percent of the time. He also noted that often times the trucking companies that occupied the site would wash and do some mechanical work on the trucks parked in the gravel area. (Note: I would consider washing and maintenance of the vehicles to be incidental to the parking of semi trucks and semi - trailers. Mr. Wallin is willing to testify at the upcoming hearing. Troy Wallin 12607 East Marginal Way S Tukwila, WA 98188 (206) 248-0521 Steven M Mullet, Mayor 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665