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HomeMy WebLinkAboutReg 2005-03-07 COMPLETE AGENDA PACKET 1 7 Tukwila City Council Agenda REGULAR MEETING J.., \kepf 1/1 JO Steven M. Mullet Mayor Councilmembers: Joe Duffie Joan Hernandez Rhonda Berry, City Administrator Pam Carter Jim Haggerton 7908 Pamela Linder, Council President Dennis Robertson Dave Fenton EXECUTIVE SESSION: 6:30 PM; Pending Litigation; pursuant to RCW 42.30.110(1)(i); (30 minutes) Monday, March 7, 2005; 7 PM Ord #2083 Res #1571 1. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL 2. SPECIAL a. Swearing in of new Tukwila Police Officers: PRESENTATIONS Zachary Anderson and Kyle Isaac. b. Update on Southcenter Mall expansion: Larry Green, Vice President, Westfield Corporation, and David Kautz, Development Director, Westfield Corporation. 3. CITIZEN At this time, you are invited to comment on items not included on COMMENT this agenda. To comment on an item listed on this agenda, please save your comments until the issue is presented for discussion. 4. CONSENT a. Approval of Minutes: 1 -18 -05 Regular; and 2 -22 -05 Regular AGENDA b. Approval of Vouchers. 5. PUBLIC Appeal of the Board of Architectural Review's decision approving Pg .3 HEARINGS the SC -3 Retail Project located at 17401 Southcenter Parkway. (This is a closed record, quasi-judicial public hearing, which will consolidate two separate appeals to the project. Only the information in the record may be considered. No new information may be introduced.) Please bring both of your black binders (distributed separately on 1/28/05 and 3/4/05). Q 6. UNFINISHED a. An ordinance amending the provisions of Ordinance No. 2053 Pg 21 BUSINESS regarding high -rise buildings. b. A motion approving a budget transfer of $80,000 from the Pg 25 Cascade View Phase 2 line item to the Macadam Winter Garden budget (refer to 2/28/05 COW packet). 7. NEW BUSINESS 8. REPORTS a. Mayor c. Staff e. Intergovernmental b. City Council d. City Attorney 9. MISCELLANEOUS 10. EXECUTIVE SESSION 11. ADJOURNMENT Tukwila City Hall is wheelchair accessible. Reasonable accommodations are available at public hearings with advance notice to the City Clerk's Office 206 433- 1800/TDD 206 248 -2933. This notice is available at www.ci.tukwila.wa.us and in alternate formats with advance notice for those with disabilities. Tukwila Council meetings are audio taped. Co UNCIL AGENDA SiwosIs o ITEM No. i I n i t i a l s Q v t 7 Meeting Date 1 Prepared by,,-) Mayor's review C'r, ncil review 03/07/05 1 SL �1 v V' 1 a S L 1998 I 1 5 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 4 5 6 7 BEFORE THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON 8 In Re: Appeal of Design Review Approval for a Proj ect Located at 17401 Southcenter Parkway NO. L04-036 9 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 25 CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 1 C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.docIT/03/02/05 KENYON DISEND, PLLC THE MUNICIPAL LAW FIR,\-! I 1 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027-3820 (425) 392-7090 FAX (425) 392-7071 10 11 12 13 14 15 16 Decision on November 19, 2004, stating the BAR's findings and conclusions along with 2 information pertaining to how the BAR's decision could be appealed. 3 In accordance with the appeals procedure, two Notices of Appeal were filed 4 within the _appeal period, one by Jo-Ann Stores, Inc. and the other by CLPF-Tukwila, 5 L.P . (owner of Park Place Shopping Center). The City then mailed a Notice of Appeal 6 Hearing on January 19, 2005, and published and posted the Notice of Appeal Hearing on 7 January 21, 2005. 8 The attorney for Jo-Ann Stores then notified the City that although he was a party 9 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 18 19 20 21 22 23 24 25 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 - 2 C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.docff/03/02l05 KENYON DISEND, PLLC THE MUNICIPAL LA W 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 I 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. 2 3 Thus, this appeal proceeding is not a new hearing, to take additional evidence, it is simply 4 a review of a previous administrative action. See Berger Engineering Co. v. Hopkins. 54 5 Wn.2d 300, 308, 340 P.2d 777 (1959) (an appellate court "is not a fact-finding branch of 6 the judicial system of this state." A tribunal with only appellate jurisdiction is not 7 pennitted to make its own findings). 8 Unlike an "open record hearing" where oral testimony and submission of relevant 9 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 CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 3 C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.docIT/03/02/0S KENYON DISEND, PLLC THE MUNICIPAL LA W FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027-3820 (425) 392-7090 FAX (425) 392-7071 10 11 12 13 14 15 16 17 1 Airpark Association v. Hagen, 87 Wn. App. 765, 942 P.2d 1068 (1997); State v. Pierce 2 County, 65 Wn. App. 614, 829 P.2d 217 (1992). Substantial evidence exists when there 3 is a sufficient quantity of evidence in the record to persuade a fair minded, rational person 4 of the truth of the finding. Hilltop Terrace Homeowners Association v. Island Co.. 126 5 Wn.2d 22, 891 P.2d 29 (1997); Freeburg v. City of Seattle. 71 Wn. App. 367, 859 P.2d 6 610 (1993) (substantial evidence for variance approval found when, after testimony 7 heard, the hearing examiner found all the conditions required to grant a variance were 8 present). Thus, as long as there is a sufficient quantity of evidence for a fair-minded 9 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 20 21 22 23 24 25 "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 CITY OF TUKWILA1S BRIEF TO THE CITY COUNCIL - 4 C:\WINDOWS\TEMP\PLD00333 - Brief - Decker BAR Appeal.doc/T/03/02/0S KENYON DISEND, PLLC THE M UNIClPAL LA W 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 establishes that the proposition at issue is more probably true than not true. In re Welfare 2 of Sego, 82 Wn.2d 736, 739 n.2, 513 P.2d 831 (1973). The TMC certainly requires more 3 than that minimum quantum of proof. One of the more stringent burdens of proof is the 4 clear, cogent and convincing standard. To sustain an order premised upon clear, cogent 5 and convincing evidence, the ultimate fact in issue must be shown by evidence to be 6 "highly probable." In re Estate ofPflegher, 35 Wn. App. 844, 847, 670 P.2d 677 (1983). 7 Given this range of legal standards of review, it appears that the TMC contemplates 8 something less than "clear, cogent and convincing," yet something more than a 9 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 - 5 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Standard of Review. 1 2 The appellants challenge the standard of review used by the BAR in making its 3 decision. The standard of review that applies to the BAR's decision is that the applicant 4 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 7 and Exhibit 2, pg 4. On appeal, the appellants must demonstrate that there is not 8 substantial evidence in the record to conclude that the applicant showed a "clear 9 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 - 6 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 10 11 12 13 14 15 16 17 18 1 applicant had met his burden of proof. On appeal, the appellants must show that the 2 applicant failed to meet his initial burden of proof. 3 C. Failure to Issue a Written Decision. 4 Following a hearing, the BAR must render a written decision including its finding 5 of facts and conclusions. TMC 18.108.040(C). Pursuant to TMC 18.112.050(B), "Any 6 hearing body may adopt as its own, findings and conclusions recommended by the 7 Department." The Department must then promptly issue a Notice of Decision. Id. In 8 this case, the BAR issued an oral ruling at the hearing on November 18, 2004. Exhibit 4, 9 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 20 21 22 23 24 25 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 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 D. Design Review Criteria. 2 Whether or not an applicant meets the design review criteria ofTMC 18.60 is left 3 to the discretion of the BAR. TMC 18.60.030(B). However, the BAR may modify a 4 literal interpretation of the criteria if, in their judgment, such modifications better 5 implement the Comprehensive Plan's goals and policies. TMC 18.60.050(A). Appellant 6 Jo-Ann Stores contends that the proposal: 7 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. 8 9 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 - 8 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 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, 2 3 modify or rej ect the Board's decision or any finding or conclusion therein, or may 4 remand to the BAR for further hearing on any issue raised in the appeal. 5 DATED this L day of March, 2005. 6 7 8 9 CITY OF TUKWILA'S BRIEF TO THE CITY COUNCIL - 9 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 COUNCIL AGEND A SYNOPSIS kl y S Initials ITEM ND. j i �i Meeting Date 1 Prepared by Mayor's review 1 ,Council review N OM' 02/28/05 1 Ch. Olivas 03/ 07/05 1 1 IUW�. rsoa 1 1 1 i 1 I 1 ITEM INFORMATION CAS NUMBER: 05-030 ORIGINAL AGENDA DA 1'E: 2/ 28/05 AGENDA ITEM TITLE Highrise ordinance amendment CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other Mtg Date Mtg Date Mtg Date Mtg Date 2/28/05 Mtg Date Mtg Date Mtg Date SPONSOR Council Mayor Adm Svcs p DCD Finance Fire Legal P&R Police PW SPONSOR'S Ordinance 2053, passed June 28, 2004 needs to be amended to include an exception SUMMARY clause; this feature is standard in all of our department ordinances. REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: 2/22/05 RECOMMENDATIONS: SPONSOR /ADMIN. Amend ordinance to include an exception clause. COMMTl"1'EE Move to COW with recommendation to approve amendment. COST IMPACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $0 So Fund Source: N/A Comments: Administartive change needed to give department flexibility. MTG. DATE RECORD OF ACTION 2/28/05 I Discussed at COW; forwarded to Reg. Mtg. for adoption. I MTG. DATE =ATTACHMENTS 2/28/05 Memo from B.C. Tomaso dated 2/17/05 (w/ copy fo current Ord. No. 2053) Draft (proposed) Ordinance F &S meeting minutes dated 2/22/05 3/7/05 1 Ordinance in final form. ...! ~,,''f.~'~'~''''~.d .' 'LV" 10."- .."7.n ff ;.......~,,~ ;;. .....~~ 'i. 1t!JI L.t~ \~ ~ YJ. '~';'o&'" ,.....J ;."-1: .'.. ~\. :'",," ~~\!' . Jd~ ~ij cj') \..... '.~ , ....../,~ /! ~ City of Tukwila Washington Ordinance No. AN ORDINANCE OF THE OTY COUNCIL OF THE OTY OF TUKWILA, WASHINGTON, AMENDING ORDINANCE NO. 2053 AND TUKWILA MUNICIPAL CODE CHAPTER 16.48, "FIRE PROTECTION IN HIGH-RISE BUILDINGS," PROVIDING FOR THE GRANTING OF EXCEPTIONS TO TUKWILA'S CODES; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of Tukwila is concerned about the health, welfare and safety of persons working or residing in high-rise buildings; and WHEREAS, whenever there are practical difficulties involved in carrying out the provisions of the International Building or Fire Codes, the City wishes to have the authority to grant modifications for individual cases; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Regulations Amended. Ordinance No. 2053 and TMC Chapter 16.48, "Fire Protection in High-Rise Buildings," are hereby amended by the addition of a new section, as follows: . 16.48.150 Exceptions Any exceptions to the items covered by this chapter shall be granted by the Chief of the Fire Department or by the Fire Marshal. Requests for exception must be made in writing; exceptions granted or denied shall be in writing. Section 2. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a courtJ)f competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 3. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of ' 2005. ATTEST / A UTHENTICA TED: Steven M. Mullet, Mayor Jane E. Cantu, CMC, City Oerk Office of the City Attorney Filed with the City Oerk: Passed by the City Council: Published: Effective Date: Ordinance Number: APPROVED AS TO FORM BY: High Rise Amend 3/4/05 Page 1 of 1 A GENDA SYN0PsIs GC�UNCIL 4. Ai s_y'''�, Initial r ITEM No. o Ni {�0 Meeting Date 1 Prepared by 1 Mayor's review 1 Council review 1 f z 2/28/05 BF t. 1 /7 /n c 1 swirl 1 fS i 7908 1 1 b 1 1 ITEM INFORMATION CAS NUMBER: 05-029 ORIGINAL AGENDA DATE: 2/28/05 AGENDA ITEM TITLE Macadam Winter Garden Budget Request CA l'EGORY E Discussion Motion Resolution Ordinance Bid Award Public Hearing Other Mtg Date Mtg Date Mtg Date 11'Itg Date Mtg Date Mtg Date Mtg Date 712R/ns SPONSOR Council Mayor El Adm Svcs DCD El Finance Fire Legal 1 P&R Police PIS SPONSOR'S The Parks Department is requesting a fund tranfer that would fund the estimated SUMMARY construction and design costs of the Macadam Winter Garden project REVIEWED BY COW Mtg. Q CA &P Cmte E F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. El Planning Comm. DATE: 2/15/05 RECOMMENDATIONS: SPONSOR /ADMIN. Transfer $80,000 to the Macadam Winter Garden project. COIvI1MI TEE Forward to COW for discussion COST IMPACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $240,000 $160,000 $80,000 Fund Source: 301 Fund (page 8, 2005 CIP) Comments: Tranfer from Cascade View Community Park phase II to Macadam Winter Garden. MTG. DATE RECORD OF COUNCIL ACTION 2/15/05 CAP recommended to COW 3/7/05 Discussed at COW; forwarded to 3/7 Reg. Mtg. for final- action. MTG. DATE ATTACHMENTS 2/28/05 Memo from Bruce Fletcher dated 2/22/05 2/28/05 Communty Affairs and Parks Committee meeting minutes from 2/15/05 3/7/05 No attachments Tentative Agenda Schedule a"...li__.!ftra.. March 7 14 21 28 April May 30th - Memorial Day (City offices closed) SEE AGENDA PACKET FOR THIS WEEK'S AGENDA 4 Public Hearings: Request for seven street vacations for Sound Transit Link Light Rail project 2 Spedal Presentation: Proclamation declaring 3/17/05 "Absolutely Incredible Kid Day" Spedal Issues: a) COill1ectivity b) Tukwila International Blvd. Phase 3 design contract 11 18 9 16 Public Hearing: Street vacation for 43rd Av. S., running southwesterly from SR599 to Squire St. and Squire St. running south from 43rd A v. S. to S. 131st PI. (Please note spedal start time of 6:30 PM) Appointment: Equity & Diversity Commission, Emma Mercado, Pos. #6, term expires 7/31/06 Consent Agenda: Authorize Mayor to sign an Interloca1 Agreement with Tukwila School District regarding Human Services Spedal Presentation: Tukwila Rotary presentation of gifted funds for play equipment Public Hearings: a) Zoning code amendment (Tukwila station) b) Development agreement (Tukwila station) 25 23 COW Meeting to be followed by a Spedal Meeting to approve vouchers 30 5TH MONDAY OF THE MONTH; No Council Meeting Scheduled Weekly Meeting /Community Events Calendar March 2005 7 Monday 8 Tuesday 9 Wednesday 10 Thursday 11 Fri 12 Sat Finance Utilities, 5 PM Sister Cities, Human Services Safety, 5 PM ➢Hwy 99 Action, 7 PM, in Advisory City Council 7 PM Council Board, 10 AM Regular, 7 PM Chambers Library Advisory Board, 7 PM, TCC (PLEASE NOTE ONE -TIME LOCATION CHANGE) 14 Monday 15 Tuesday 16 Wednesday 17 Thursday 18 Fri 19 Sat Transportation, Community Crime Hot Apt. Mgrs' Human Services Chipper Day 5 PM Affairs Parks, Spots Task Networking Providers, Civil Srvc 5 PM Force, 10 Awl Lunch, NOON 11 AM Historical presentation Cmsn, 5 PM Parks Domestic by the Maple Family Commission, Violence honoring the Duwamish City Council 5:30 PM Task Force, Tribal Longhouse COW, 7 PM NOON Cultural Center project, 1 PM at TCC. Call Louise Jones -Brown 206 824 -5825 for more information. Court notations are made to alert City of Tukwila employees /citizens of potential parking difficulty only. Apartment Managers' Networking Lunch (3rd Thurs), NOON, (bring own lunch), TCC, contact Robbie Burns 206 242 -8084. Arts Commission (1st Tues), 5 PM, TCC, contact Kimberly Matej 206 767 -2342. Chipper Days, sponsored by the Washington State Dept. of Agriculture, (3rd Sat), 10 AM, Foster HS Main Parking Lot. Dispose of prunings /plant materials from the Longhorned Beetle quarantine area. Drive your truckload of materials to the parking lot and we'll help unload, chip, and dispose of materials free of charge. Be sure to bring ID w /quarantine area address. City Council Committee of Whole (COW) Meeting (2nd 4th Mon), 7 PM, Council Chambers. City Council Regular Meeting (1st 3rd Mon), 7 PM, Council Chambers. Civil Service Commission (2nd Mon), 5 PM, Conf Rm #3, contact Bev Willison 206 433 -1844. Community Affairs Parks Committee (2nd 4th Tues), 5 PM, Conf Rm #3. Community Oriented Policing Citizens Adv. Brd. (COPCAB) (4th Wed), 6:30 PM, Conf Rm #5, Marja Murray 206 433 -7175. Crime Hot Spots Task Force (3rd Wed), 10 AM, Conf Rm #5, Marja Murray 206 433 -7175. Domestic Violence Task Force (3rd Th), Noon -1:30 PM, Conf Rm #5, Evie Boykan 206 433 -7180 or Stacy Hansen 206 433 -7181. Equity Diversity Commission (1st Th), 5:15 PM, Showalter Middle School Library, call Lucy Lauterbach 206 433 -1834. Finance Safety Committee (1st 3rd Mon), 5 PM, Conf Rm #3; 3/7 Mtg.: a) Request for business to install above ground tanks at their facility (discussed at 2/7 meeting); b) Haz -mat presentation; c) TCSC additional funding; d) Tukwila Valley South; e) Financial policies continued review; f) Animal control. >Highway 99 Action Committee (2nd Tues), 7 PM, TCC, contact Dave Haynes 206 433 -1812. >Human Services Advisory Board (2nd Fri of odd months only), 10 AM, Human Srvcs Conf Rm, call Evie Boykan 206 433 -7180. Human Services Providers, 11:30 AM, TCC, (tentative schedule: 3/18, 6/17, 9/16, 12/2), call Stacy Hansen 206 -433 -7181. Library Advisory Board (2nd Tues), 7 PM, Foster Library, call Bruce Fletcher 206 767 -2343 (Steven Schneider, Board President). Parks Commission (3rd Wed), 5:30 PM, TCC Sr. Game Rm, contact Kimberly Matej 206 767 -2342. Planning Commission /Board of Architectural Review (Public Hrg on 4th Th; Nov Dec 2nd Th), 7 PM, Council Chambers, contact Wynetta Bivens 206 -431 -3670. Sister City Committee (as needed), Conf Rm #3, contact Lucy Lauterbach 206 433 -1834. Transportation Committee (2nd 4th Mon), 5 PM, 6300 Southcenter Blvd, Conf Rm #1. Tukwila Government Affairs (SWKCC) (1st Tues), Noon, Chamber Offices, contact Nancy Damon 206 -575 -1633. Tukwila Citizen Patrol (4th Mon), 7 PM, TCC, Everett Parr 206 762- 9219/Roy Steinauer 206 -243 -9191, Tukcp @hotmail.com. Utilities Committee (1st 3rd Tues), 5 PM, 6300 Southcenter Blvd, Conf Rm #1; 3/8 Mtg.: a) Fifty foot arterial lift truck bid award, b) Solid waste rates.