HomeMy WebLinkAboutReg 2005-03-07 Item 5 - Public Hearing - Appeal of Board of Architectural Review Decision on SC-3 Retail Project Co UNCIL AGENDA SiwosIs
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03/07/05 1 SL �1 v V' 1 a S L
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ITEM INFORMATION
CAS NUMBER: 05-035 ORIGINAL AGENDA DATE: 3/7/05
AGENDA I"IEMTITLE Appeal of the Board of Architectural Review decision approving the SC -3 Retail
Project
CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other
Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date 3/7/05 Mtg Date
SPONSOR Council Mayor Adm Svcs DCD Finance Fire Legal P &R Police PIS
SPONSOR'S A property owner and a tenant adjacent to 17401 Southcenter Parkway have filed
SUMMARY quasijudicial appeals of the BAR decision in case L04 -036. The Board approved the design
of a strip retail development that would replace the existing Winners Restaurant. The City
Council must hold a closed record appeal hearing and either affirm the BAR decision or
send the project back to the BAR for modifications.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DA'Z'E:
RECOMMENDATIONS:
SPONSOR /ADMIN. Affirm the decision of the BAR
CoMMriTEE NA
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
Fund Source: NA
Comments:
MTG. DATE RECORD OF COUNCIL ACTION
3/7/05
MTG. DATE ATTACHMENTS
3/7/05 1 Staff Memo dated 3/2/05
Exhibits to the Memo are contained in the Binder distributed 1/28/05
Brief from Tukwila City Attorney Shelley Kerslake
Memorandum from Applicant's Attorney Henry Jameson
Brief from Appellant CPLF's Attorney Melody McCutcheon
Brief from Appellant JoAnn's Attorney Joshua Brower
These were distributed directly to Council on 3/4/05, please bring to hearing
MEMORANDUM
To: Mayor Mullet and Members of the City Council
From: Steve Lancaster, Director of Community Development~
Subject: Staff Response to Appeals of Board of Architectural Review Decision on L04-036
the SC-3 Retail Building
Date: March 2, 2005
Applicant:
Appellants'
Request:
March 7,2005
L04-082 Jo-Ann Stores Appeal
L04-083 INO Appeal
Brad Decker, DDCI
Hearing Date:
File Numbers:
Staff:
Remand the project back to the BAR for further consideration of alternative
layouts.
17401 Southcenter Parkway
Nora Oierloff, Planning Supervisor
Location:
FINDINGS
Backg:round
On November 18,2004 the Board of Architectural Review (BAR) granted design approval for a
strip retail building on the site of the existing Winners Restaurant at 17401 Southcenter Parkway.
The original proposal for a single story retail building with accessory parking, landscaping,
loading, and trash/recycling was revised at the 9/16/04 hearing and again at the continued
10/14/04 hearing before being approved. The approved design is shown at Attachment B to the
second supplemental staff report at Exhibit 3. The BAR based its decision on the criteria given
at TMC 18.60 and on the findings and conclusions contained in the staff reports, see Exhibits 3,
7 and 13.
Two notices of appeal of the BAR's decision were filed within the 21 day appeal period by
attorneys representing JoAnn Stores and INO Real Estate. These are attached as Exhibits 1 and
2. These notices were mailed to parties of record, the BAR and the City Council on December
15,2004. Notice of the appeal hearing was mailed on January 19 and published and posted on
January 21 st.
Note: Exhibits referenced in this memo are in the binders distributed to Council on 1/28/05.
Staff Memo: Appeal of L04-036 SC-3 Design Review
Page 2
Because one of the appellants was inadvertently missed on the mailed hearing notice the hearing
was postponed until March ih to allow for renoticing. Notice of the rescheduled hearing was
mailed on February 1 st and mailed and posted on February 18th.
Under the Zoning Code only one open record public hearing on a permit is allowed. This was
the BAR hearing (which was kept open and continued twice) so the appeal hearing to the City
Council is required to be closed record. This means that no new evidence or testimony may be
presented, all argUments must be based on the hearing record, and only parties to the appeal may
address the Council (appellants, the applicant, and staff). The scope of the appeal is limited to
issues raised in the notices of appeal.
The City Council's role is to decide if the BAR made a proper decision to approve the design
based on the information in the hearing record including the staff report and attachments, items
presented at the meeting and testimony by staff, the applicant and the public. The City Council
may adopt as its own, all or portions of the BAR fmdings and conclusions. In the event the City
Council determines that it lacks adequate information on which to make findings of fact
necessary to its decision, the City Council may remand the project back to the BAR with
instructions to reopen the public hearing to take additional testimony and provide the BAR
fmdings on the factual issues identified by the City Council as requiring such additional
information (TMC 18.112.050).
Following are condensed restatements of the issues raised by the appellants, followed by Staffs
respon~e. Since the issues raised in the Io-Ann and ING appeals are so similar the issues and
responses have been combined. For the full text of the appeals see Exhibits 1 and 2.
Analvsis
Appeal Issue #1: The BAR applied the wrong standard to the proposal. They should have
required a clear demonstration of compliance with the guidelines rather
than the lower standard of meeting the minimum criteria.
Members of the BAR stated that they thought that the proposal met the minimum standards in the
design review criteria. Whether the applicant clearly demonstrated compliance (TMC
18.60.030 B) has to do with the completeness and consistency of the drawings that formed the
basis of the application. The drawing set attached to the final staffreport (Exhibit 3 B) clearly
describes the proposed building and site improvements.
Appeal Issue #2: The BAR improperly shifted the burden of proof.
The appellants contend that the BAR approved the project because they were "worn down by the
Applicant's refusal to redesign the Proposal consistent with the City's independent design
consultant's recommendations." See page 4 of Exhibit 1. In fact, the BAR did not require the
applicant to redesign the site in the way recommended by Staff and suggested by the City's
design review consultant because that layout required an additional access point outside of the
common access drive easement, see Exhibit 13 E for the extent of the common easement. See the
Note: Exhibits referenced in this memo are in the binders distributed to Council on 1/28/05.
Staff Memo: Appeal of L04-036 SC-3 Design Review
Page 3
FTB diagram at Exhibit 13 F (reproduced below with emphasis added) showing the cut through
the landscape island necessary to access the aisle of parking adjacent to Southcenter Parkway
from the south.
At the 9/16/04 hearing Chuck Wigman speaking on behalf of the surrounding property owners
stated that "frankly we can't really. .. work in conjunction with something that's going to put a
building in an area on the leases that would have shown as a 'no-build' clause." See page 17 of
Exhibit 14. The BAR decided not to pursue a change in the site plan shifting the building toward
the street because the redesign was based on an action from IN G that was beyond the Board's
ability to require. At the 10/14/04 hearing Boardmember Meryhew stated "I'm not sure that you
can get the applicant and the other owners to agree. I think that's a major problem and therefore
I think we ought to proceed without that agreement, but make sure that the safety issues are
covered, without necessarily getting an agreement between any of the parties. Because it looks to
me like that, ING and Borders and Jo-Ann's can effectively stop this thing by just, by just not
agreeing. . ." See page 3 9 of Exhibit 8. Given the site layout, the BAR approved the proj ect once
they determined that the building design, landscaping and safety issues had been resolved.
Appeal Issue #3: The BAR erred by failing to issue written Findings of Fact and Conclusions
of Law separate from the Notice of Decision.
The BAR adopted the [mdings and conclusions contained in the staff report and this is noted in
the Notice of Decision. They are not required to issue a separate document by the Tukwila
Zoning Code. The City Attorney has reviewed this issue and finds that the BAR's action
complied with the TMC requirements.
Appeal Issue #4: The Applicant did not meet the City's design review criteria because the
proposal does not:
Note: Exhibits referenced in this memo are in the binders distributed to Council on 1/28/05.
Staff Memo: Appeal of L04-036 SC-3 Design Review
Page 4
1) moderate the visual impact of the parking, loading and service areas due to placement
of the service area directly infront of Jo-Ann Stores without any screening
The garbage and recycling collection area for the SC-3 building is proposed at the rear of the
building, approximately 180 feet north of the entrance to the lo-Ann Store and across from a
parking area. It will be screened by a concrete wall and metal gate painted to match the
building color. The loading spaces are at the northwest comer of the building, past the
dumpster enclosure, see Sheet A1.0 of Exhibit 3 B.
2) provide adequate landscape transition to existing businesses including Jo-Ann Stores
Below is a picture of the common access drive between the Winners Restaurant and the Park
Place building, the picture is from staff's powerpoint presentation at 9/16/04 hearing. The
width of the driveway will be maintained, however there will be a row of parking on the left
starting at approximately the curb line and then 20 feet back will be the SC-3 building wall.
The applicant has proposed to provide 614 square feet of landscaping in six landscape islands
of various sizes along the rear of the building. The landscape architect has specified some
plants such as heavenly bamboo, katsura trees and vibernum that are also used in the
landscape areas around the Park Place Shopping Center, see the landscape plan in Exhibit 3 B
and narrative at Exhibit 3 p. 5.
3) ensure consistency with neighborhood character by being too close to existing
structures and blocking views of the Jo-Ann store from Southcenter Parkway
No point of the SC-3 building will be within 60 feet of any structure, including the lo-Ann
Store due to a no-build easement, see dashed line on grading plan set in Exhibit 3 B. The
existing Winners Restaurant is between the lo-Ann Store and Southcenter Parkway, with the
southern edge of the restaurant approximately even with the northern edge of the lo-Ann
Store, see aerial photo at Exhibit 16. The SC-3 building would extend about 90 feet further
south than Winners while the conceptual site plan suggested by FTB, the City's design
consultant would have the building extend about 30 feet further than Winners, see Exhibit 13
F. However, the site concept suggested by FTB is just at the sketch stage and it does not give
building square footage or parking calculations. Design development of this concept might
well result in building dimensions different than those suggested. Under either of the site
designs visibility of the lo-Ann store by southbound drivers on Southcenter Parkway would
be less than what currently exists with the Winners building.
Below is a picture of the view of the site by southbound traffic on Southcenter Parkway, the
picture is from staff's powerpoint presentation at 9/16/04 hearing. The SC-3 proposal would
Note: Exhibits referenced in this memo are in the binders distributed to Council on 1/28/05.
Staff Memo: Appeal ofL04-036 SC-3 Design Review
Page 5
lower the site to be closer to the road elevation by removing approximately 3,000 cubic yards
of fill, see Exhibit 3 B Grading Plan.
4) ensure compatibility of vehicular and pedestrian circulation patterns by eliminating
existing parking used by adjacent businesses and forcing pedestrians to cross a
common access drive to reach the Jo-Ann Stores
A parking area consisting of one double loaded and one single loaded aisle directly in front of
the Jo-Ann Store and adjacent to the main Winners entrance would be displaced by the SC-3
building, see Exhibit 10. Jo-Ann customers who currently use this parking must cross the
corrimon access drive to reach the store entrance. Another, larger parking area north of the
Jo-Ann store provides access to the store entrance without requiring pedestrians to cross the
driveway and will not be affected by the SC-3 proposal, see approved site plan in Exhibit 3
B.
5) provide adequate screening of lighting by placing the back of the structure too close to
Jo-Ann Stores
It is unclear what lighting the appellant is asking to be screened. The applicant provided a
lighting diagram in Exhibit 13 I and fixture cut sheets as Exhibit 7 C and D.
6) ensure appropriate scale and harmony by being too close to Jo-Ann Stores
As noted above, the SC-3 building will be between 60 and 75 feet east of the Jo-Ann building
for approximately 90 feet, Exhibit 3 B. The conceptual site plan that the appellants have
requested that the BAR reconsider would not move the SC-3 building further away from Jo-
Ann, but would reduce the length by approximately 60 feet, Exhibit 13 F.
At approximately 18,700 square feet the SC-3 building would be larger than the Winners
Restaurant, but significantly smaller than the main portion of the Park Place Shopping
Center. It will be one story and the tops of the parapets will vary between 33 and 43 feet
above the adjusted grade, Exhibit 3 B.
Note: Exhibits referenced in this memo are in the binders distributed to Council on 1/28/05.
Staff Memo: Appeal ofL04-036 SC-3 Design Review
Page 6
Conclusions
Appeal Issue #1: The BAR concluded that the SC-3 proposal met the design review criteria.
The final drawing set clearly describes the proposed building and site improvements.
Appeal Issue #2: The BAR required that the project be redesigned to meet the design review
criteria to the extent of its authority. The Board concluded that reconfiguring the building as
recommended by staff required the cooperation of the surrounding property owner and tenants
which was beyond their ability to compel.
Appeal Issue #3: The BAR properly made a motion to adopt the findings and conclusions in the
final staffreport, which references the earlier analysis. See Exhibit 3 p. 9.
Appeal Issue #4:
1) The SC-3 dumpster area will be screened and located away from the Jo-Ann Store
entrance.
2) The proposed site plan exceeds landscape code requirements. The proposed plant palatte
includes plants used on the Park Place property.
3) The alternate site plan suggested by FTB would not move the building further away from
the Jo-Ann Store and would still block views by southbound traffic on Southcenter
Parkway.
4) While the SC-3 project will displace parking that is convenient to the Jo-Ann Store,
.competition for that parking by Winners customers is high. Patrons will still have the
option of using the northern parking area that does not require crossing the common
driveway.
5) It is unclear what aspect of the lighting the appellant is objecting to and how the alternate
site plan would remedy the issue.
6) While the SC-3 building is larger than the Winners Restaurant it replaces it is smaller
than many nearby buildings.
Staff Recommendation
Staff recommends that the City Council uphold the decision of the Tukwila BAR in case L04-
036 to approve the design of the SC-3 Retail Building and site. The redesign of the site plan that
the appellants are requesting is only feasible ifING grants an additional access point to the lot,
something that the BAR cannot require. There is no point to sending the project back to the
BAR to modify the site plan if the applicant does not have the authority to implement the
reVISIon.
Staff suggests that the Council direct staff to prepare a new consolidated Notice of Decision due
to possible confusion about the BAR's findings and conclusions being contained in three staff
reports.
Note: Exhibits referenced in this memo are in the binders distributed to Council on 1/28/05.
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BEFORE THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON
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In Re: Appeal of Design Review Approval
for a Proj ect Located at 17401 Southcenter
Parkway
NO. L04-036
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CITY OF TUKWILA'S BRIEF TO
THE CITY COUNCIL
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 infolIDation to take a vote and continued the hearing until
23 November 18, 2004. On November 18, the BAR concluded that it had sufficient
24 information to take a vote and the proposal was approved. Staff then issued a Notice of
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CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL -
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KENYON DISEND, PLLC
THE MUNICIPAL LAW FIR,\-!
I 1 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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Decision on November 19, 2004, stating the BAR's findings and conclusions along with
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information pertaining to how the BAR's decision could be appealed.
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In accordance with the appeals procedure, two Notices of Appeal were filed
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within the _appeal period, one by Jo-Ann Stores, Inc. and the other by CLPF-Tukwila,
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L.P . (owner of Park Place Shopping Center). The City then mailed a Notice of Appeal
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Hearing on January 19, 2005, and published and posted the Notice of Appeal Hearing on
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January 21, 2005.
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The attorney for Jo-Ann Stores then notified the City that although he was a party
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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.
II. 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
17 BAR or the Planning Commission, following an open record hearing. TMC
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18.104.01 G(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 proj ect 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 -
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KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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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 pennit application.
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Thus, this appeal proceeding is not a new hearing, to take additional evidence, it is simply
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a review of a previous administrative action. See Berger Engineering Co. v. Hopkins. 54
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Wn.2d 300, 308, 340 P.2d 777 (1959) (an appellate court "is not a fact-finding branch of
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the judicial system of this state." A tribunal with only appellate jurisdiction is not
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pennitted to make its own findings).
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Unlike an "open record hearing" where oral testimony and submission of relevant
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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 fmdings of the BAR to determine
if the Bar's factual findings were supported by substantial evidence. North/South
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KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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Airpark Association v. Hagen, 87 Wn. App. 765, 942 P.2d 1068 (1997); State v. Pierce
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County, 65 Wn. App. 614, 829 P.2d 217 (1992). Substantial evidence exists when there
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is a sufficient quantity of evidence in the record to persuade a fair minded, rational person
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of the truth of the finding. Hilltop Terrace Homeowners Association v. Island Co.. 126
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Wn.2d 22, 891 P.2d 29 (1997); Freeburg v. City of Seattle. 71 Wn. App. 367, 859 P.2d
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610 (1993) (substantial evidence for variance approval found when, after testimony
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heard, the hearing examiner found all the conditions required to grant a variance were
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present). Thus, as long as there is a sufficient quantity of evidence for a fair-minded
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person to conclude that BAR's factual fmdings were reasonable, the findings should be
affrrmed.
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
18 customary meaning." TMC 18.06.005. Thus, the Council is left with using the
19 customary meaning of the words. TMC 18.06.005. Cambridge Dictionary defines
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"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
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KENYON DISEND, PLLC
THE M UNIClPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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establishes that the proposition at issue is more probably true than not true. In re Welfare
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of Sego, 82 Wn.2d 736, 739 n.2, 513 P.2d 831 (1973). The TMC certainly requires more
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than that minimum quantum of proof. One of the more stringent burdens of proof is the
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clear, cogent and convincing standard. To sustain an order premised upon clear, cogent
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and convincing evidence, the ultimate fact in issue must be shown by evidence to be
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"highly probable." In re Estate ofPflegher, 35 Wn. App. 844, 847, 670 P.2d 677 (1983).
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Given this range of legal standards of review, it appears that the TMC contemplates
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something less than "clear, cogent and convincing," yet something more than a
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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
e,asily 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.
ill. 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 -
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C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/T/03/02/05
KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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A. Standard of Review.
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The appellants challenge the standard of review used by the BAR in making its
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decision. The standard of review that applies to the BAR's decision is that the applicant
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must show_ a "clear demonstration of compliance" with the guidelines of T:rvrC 18.60.
5 TMC 18.60.030(B). The appellants contend that the BAR lowered its standard by
6 allowing the applicant to barely "eek" past the City's approval criteria. Exhibit 1, pg. 3
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and Exhibit 2, pg 4. On appeal, the appellants must demonstrate that there is not
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substantial evidence in the record to conclude that the applicant showed a "clear
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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 ofTMC 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. ld.
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
CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL -
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C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR AppeaJ.docIT/03/02/05
KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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applicant had met his burden of proof. On appeal, the appellants must show that the
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applicant failed to meet his initial burden of proof.
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C. Failure to Issue a Written Decision.
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Following a hearing, the BAR must render a written decision including its finding
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of facts and conclusions. TMC 18.108.040(C). Pursuant to TMC 18.112.050(B), "Any
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hearing body may adopt as its own, findings and conclusions recommended by the
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Department." The Department must then promptly issue a Notice of Decision. Id. In
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this case, the BAR issued an oral ruling at the hearing on November 18, 2004. Exhibit 4,
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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 staffs 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.
19 Commissioner Ekberg seconded this motion. Id. A vote was taken and only
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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 -
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C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR AppeaI.docff/03/02/05
KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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D. Design Review Criteria.
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Whether or not an applicant meets the design review criteria ofTMC 18.60 is left
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to the discretion of the BAR. TMC 18.60.030(B). However, the BAR may modify a
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literal interpretation of the criteria if, in their judgment, such modifications better
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implement the Comprehensive Plan's goals and policies. TMC 18.60.050(A). Appellant
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Jo-Ann Stores contends that the proposal:
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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 hannony with existing neighboring
development; and
9) fails to ensure an appropriate relationship to adjacent site by blocking views.
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Appellant CLPF-Tukwila, L.P. contends that the proposal:
1) fails to consider alternative site layouts;
2) fails to require a hannonious relationship with adj acent 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 ofTMC 18.60 pertaining to
these issues.
N. 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 -
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C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR AppeaJ.doClT/03/02/05
KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071
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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,
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modify or rej ect the Board's decision or any finding or conclusion therein, or may
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remand to the BAR for further hearing on any issue raised in the appeal.
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DATED this L day of March, 2005.
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CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL -
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C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.docITl03/02l05
KENYON DISEND, PLLC
B~
WSBA No. 21820
Attorneys for City of Tukwila
KENYON DISEND, PLLC
THE MUNICIPAL LA W FIRM
11 FRONT STREET SOUTH
ISSAQUAH, WASHINGTON 98027-3820
(425) 392-7090 FAX (425) 392-7071