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HomeMy WebLinkAboutPL08-071 - Original - Floten Investments II, LLC - Settlement Agreement Meridian Banks Rezone - 06/12/2008 SETTLEMENT AGREEMENT THIS AGREEMENT is entered into between FLOTEN INVESTMENTS II, LLC, a limited liability company in the State of Washington ("Floten"), and the CITY OF KENT, a Washington municipal corporation, ("City"). RECITALS 1. An application was filed on June 30, 2005, to rez ne approximately 6.32 acres of property located at 25840 135th Lane SE in Kent, Wa hington, from the current zoning of SR-4.5 (Single-Family Residential, 4.5 units er acre) to SR-6 (Single-Family Residential, 6 units per acre) referred to as th Meridian Banks Rezone, #RZ-2005-7. 2. On November 20, 2007, the City Council voted by otion to remand the Meridian Banks Rezone back to the hearing examiner for consi eration of certain issues that were subsequently listed in Resolution 1774 passed b the City Council on December 11, 2007. On December 10, 2007, the applicantrfiled a Land Use Petition Act Appeal Pursuant To RCW 36A.70C.070; Petition For xtraordinary Writ Relief; Complaint for Declaratory & Injunctive Relief, King Couny Superior Court, Case No. 07-2-38952-1 KNT. On December 28, 2007, the applic�nt filed a second Land Use Petition Act Appeal Pursuant To RCW 36A.70C.g70; Petition For Extraordinary Writ Relief; Complaint for Declaratory & Injunctive Relief, King County Superior Court, Case No. 07-2-41012-1 KNT. Both actions were consolidated under Case No. 07-2-38952-1 KNT, which shall be referred to herein as the "Meridian Banks Lawsuits." 3. Upon Floten's motion, the Court Issued a writ of p ohibition directing the City not to undertake any further action concerning the Merl ian Banks rezone pending further order of the Court. On February 22, 2008, the co rt entered orders amending the writ of prohibition, denying Floten's motion to enf rce the writ, and dismissing the LUPA petitions without prejudice. Floten has appealed those orders to Division I of the Court of Appeals. 4. The parties seek to reach an agreement regarding t e Meridian Banks Rezone application and to resolve all claims which the parties ma have against the SETTLEMENT AGREEMENT— Page 1 of 7 (Re: Floten Rezone — RZ-2005-7) (May 21, 2008) l other concerning and limited to the rezone application, including all claims, demands, warranties, causes of action, obligations, damages, judgments, an any liabilities of any nature whatsoever, whether or not now known, anticipat d, suspected or claimed, which arise out of, are based upon, or are in any way connected to the Meridian Banks Lawsuits regarding rezone application, RZ-2005 7; and Court of Appeals No. 61332-4-1; excluding pending matters involving th Meridian Banks Preliminary Plat (SU-2005-11) and SEPA review and appeal (AP-20 7-2). AGREEMENT 1. Relief from Stay. Floten and the City agree to pres nt to the court a motion and order in the same format as provided in the attached and incorporated Exhibit "A" modifying the stay against the enforcement of the amended writ of prohibition and allowing the Kent City Council to consider app oving the rezone without conditions as provided in the Examiner's Recommendati n of October 15, 2007 for RZ-2005-7 on the record before the Council on Novembe 20, 2007. Floten and the City agree that any action by the Council that is not a v to to approve the rezone without conditions as provided in the Examiner's Recomme dation of October 15, 2007, and the Ordinance as attached at Exhibit "B," is ull and void and without legal force and effect and shall not be included in any ecord of decision making concerning the rezone application which may thereafter be reviewed by a court. If the City Council does not approve the form of the Or inance at Exhibit "B," the stay of enforcement of the terms and conditions of the a ended writ dated February 22, 2008 shall be reinstated. In this event, the City and loten agree to file Exhibit "C" in Superior Court, which shall reinstate the stay of enforcement of the terms and conditions of the amended writ dated February 22, 200 . 2. Rezone Ordinance. The City agrees to present to its Council for consideration an ordinance regarding the Meridian Banks rezoine application as provided in the attached and incorporated Exhibit "B" approving he rezone without conditions as provided in the Examiner's Recommendation of O ober 15, 2007 for RZ-2005-7. 3. Dismissal. If adopted by the Council as provided i 12 above, Floten and the City agree to execute an Agreed Order of Dismissal of tie Meridian Banks SETTLEMENT AGREEMENT- Page 2 of 7 (Re: Floten Rezone - RZ-2005-7) (May 21, 2008) Lawsuits, including the appeal to Division I of the Court of Appea s, with prejudice and without fees or costs awarded to either party in the same for at as provided in the attached and incorporated Exhibits "D" and "E"(with regard to the actions in Superior Court and Division I respectively). This Agreement do s not affect any pending proceedings, appeals, claims, demands, warranties, auses of action, obligations, damages, judgments, and any liabilities of any nature whatsoever, whether or not now known, anticipated, suspected or claimed, which arise out of, are based upon, or are in any way connected to the Floten's plat app ication (SU-2005- 11) and SEPA appeal (AP-2007-1). 4. Mutual Release. a) Upon adoption by the Council as provided in ¶2 above and upon the expiration of the applicable Land Use Petition Act appeal periods without any appeals being filed by any entity or person, Floten and the City mutually elease and forever discharge each other, including their agents, consultants, fficers, directors, employees, attorneys, and any and all other persons or entities ho have acted on their behalf, from and against any and all claims, demands, warranties, causes of action, obligations, damages, judgments, and any liabilitre of any nature whatsoever, whether or not now known, anticipated, suspected or claimed, which arise out of, are based upon, or are in any way connected to the Meridian Banks Lawsuits regarding rezone application, RZ-2005-7; and Court of ppeals No. 61332- 4-1; excluding pending matters involving the Meridian Banks P liminary Plat (SU- 2005-11) and SEPA review and appeal (AP-2007-2). b) Upon adoption by the Council as provided in 12 above, and in the event that an appeal is filed within the Land Use Petition Act a peal period by any entity or person, if the City Is successful in defending the passa�e of the Exhibit "B" ordinance then Floten and the City mutually release and forever discharge each other, including their agents, consultants, officers, directors, erriployees, attorneys, and any and all other persons or entities who have acted on th it behalf, from and against any and all claims, demands, warranties, causes of action, obligations, damages, judgments, and any liabilities of any nature whatsoe er, whether or not now known, anticipated, suspected or claimed, which arise out o , are based upon, or are in any way connected to the Meridian Banks Lawsui regarding rezone application, RZ-2005-7; and Court of Appeals No. 61332-4-1• excluding pending SETTLEMENT AGREEMENT- Page 3 of 7 (Re: Floten Rezone - RZ-2005-7) (May 21, 2008) matters involving the Meridian Banks Preliminary Plat (SU-205-11) and SEPA review and appeal (AP-2007-2). c) The parties further understand and agree that they will not commence, maintain, or prosecute against each other or their agents, officers, directors, employees, attorneys or any and all other persons or entities ho have acted on their behalf, any court action or other legal proceeding that is ased upon any of their alleged claims, demands, causes of action, damages, liat�ilities, obligations, losses and expenses released in this section of this Agreem nt related to the Meridian Banks Rezone application and/or the Meridian Banks La suits. The parties further understand and agree that they will not execute or seek t impose, collect or recover upon or otherwise enforce any judgment, warrant or ttachment against each other or their agents, officers, directors, employees, attorneys or any and all other persons or entities who have acted on their behalf, on ac ount of or arising from any such claims, demands causes of action, damages, lia ilities, obligations, losses and expenses related to the Meridian Banks Rezone pplication and/or Meridian Banks Lawsuits, and Court of Appeals No. 61332-4-1. d) The provisions in paragraph 4 (b) and (c) do not affect any pending appeals, claims, demands, warranties, causes of action, obligations, damages, judgments, and any liabilities of any nature whatsoever, whether or not now Iglnown, anticipated, suspected or claimed, which arise out of, are based upon, o are in any way connected to the Floten's plat application (SU-2005-11) and SEPA appeal (AP-2007- 1). 5. No Admission of Fault. Neither the terms of this A reement, nor any action taken under it will constitute or be construed as an admissi n by either party of the validity of any of the claims or controversies or of any fault or wrongdoing on its part. Neither the execution of this Agreement, the proposed fo m of Ordinance at Exhibit "Ill," or the negotiations leading to its execution, nor any action taken pursuant to its terms will be offered by any party or may be dee ed admissible for any purpose in any proceeding, except a proceeding to enforce the terms of this Agreement. 6. Costs and Attorneys' Fees. It is understood and greed that each party will be responsible for the payment of its own costs, attor eys' fees, and all SETTLEMENT AGREEMENT- Page 4 of 7 (Re: Floten Rezone - RZ-2005-7) (May 21, 2008) other expenses incurred in connection with this Agreement; the Meridian Banks Lawsuits, the rezone, RZ-2005-7 and Court of Appeals No. 613 2-4-1, including the City's agreement to waive any CR 11 claims against Plaintiff nd/or his attorneys that could have been filed in this matter to date. 7. Indemnity and Attorneys' Fees. Should either party breach any of the provisions of this Agreement, the breaching party shall indemni and hold harmless the other party from and against all claims, causes of action, bligations, damages and liabilities, including court costs, consultants' fees, and att rneys' fees, arising from or in connection with the breach. In any litigation for he breach of or to enforce a provision of this Agreement, the substantially prev fling party will also recover its costs, non-statutory expenses, and attorneys' fees. 8. Governing Law. This Agreement shall be construe J by and enforced in accordance with the laws of the State of Washington. 9. Successors and Assigns. This Agreement will in re to the benefit of and be binding upon the successors and assigns of the parties together with their agents, officers, directors, employees, attorneys and any and all other persons or entities who have acted on their behalves. 10. Authority to Execute the Agreement. The pa ies represent and warrant that they have the sole right and exclusive author ty to execute this Agreement and that they have not sold, assigned, transfe red, conveyed, or otherwise disposed of any claim or demand against the other arty relating to any matter covered by this Agreement. 11. Entire Agreement. The parties agree that the ter s of this Agreement are contractual and are not mere recitals. Each party fu her declares and represents that no promise, inducement, or agreement not a pressed herein has been made by the other party to induce it to enter into thi Agreement. This Agreement constitutes the entire agreement between the parti s as to its subject matter and supersedes any and all representations, promises an understandings of any kind, whether oral or written. The parties agree that this Ag eement may not be SETTLEMENT AGREEMENT — Page 5 of 7 (Re: Floten Rezone — RZ-2005-7) (May 21, 2008) altered, amended, modified or otherwise changed except by a w iting executed by each of the parties. 12. Headings. The headings contained in this Agreemen are for purposes of convenience only and shall not be deemed to affect the meanin or interpretation of any of the provisions of this Agreement. 13. Method of Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original, but II of which shall constitute one and the same agreement. 14. Each Party Drafted. Each party declares that prior tp the execution of this Agreement, it has apprised itself of sufficient information to intelligently exercise its judgment in participating in the drafting of, deciding on thel contents of, and determining whether to execute this Agreement. Both parties epresent that the contents of this Agreement have been explained to them by thei counsel and that this Agreement is entered into freely and voluntarily, upon the a vice and with the approval of their counsel. 15. Counterparts and Facsimile. This Agreement may a executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute one agreement. Either party may execu a and deliver this agreement by telephone facsimile or electronically by a pdf or f xed file, and that signature shall have the same force and effect as if executed in on final. CITY OF KENT: FLOTEN INVES MENTS II, LLC: By: gESVZ COOKE William Floten / Dated: Da �! APPROVED AS TO FORM: KENT LAW DEPARTMENT By: -�< Dated: - `D SETTLEMENT AGREEMENT- Page 6 of 7 (Re: Floten Rezone - RZ-2005-7) (May 21, 2008) altered, amended, modified or otherwise changed except by a w sting executed by each of the parties. 12. Headings. The headings contained in this Agreement are for purposes of convenience only and shall not be deemed to affect the meanin or interpretation of any of the provisions of this Agreement. 13. Method of Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original, but If of which shall constitute one and the same agreement. 14. Each Party Drafted. Each party declares that prior t the execution of this Agreement, it has apprised itself of sufficient information to int iligently exercise Its judgment in participating in the drafting of, deciding on the contents of, and determining whether to execute this Agreement. Both parties r resent that the contents of this Agreement have been explained to them by their counsel and that this Agreement Is entered into freely and voluntarily, upon the ad ice and with the approval of their counsel. 15. Countetgarts and Faglimile. This Agreement may be executed In any number of counterparts, each of which shall constitute an original, and all of which will together constitute one agreement. Either party may execute and deliver this agreement by telephone facsimile or electronically by a pdf or fax d file, and that signature shall have the same force and effect as if executed in origi al. CITY OF KENT: FI.PTEN INVEST ENTS II, LLC: By: mail, SUZETTE COOKE William Flote Its: Mayor Dated: Dated APPROVED AS TO FORM: KENT LAW DEPARTMENT By: Dated: SETTLEMENT AGREEMENT— Page 6 of 7 (Re: Floten Rezone — RZ-2005-7) May 21, 2008) 6 d 9U L 9ZL 90Z ueloij 1118 det:ZO 8Q l l unp ATTORNEYS FOR FLOTEN INVESTMENTS II, LLC r By: BILL H. LIAMSON Dated: By: G?; Joseph A. Harrell Dated: 4'- //- Z©ok- I.\F\Flotenlnvestmentsll\Floten8\Settlement\SettlementAg reementDraft5-13-08.doc SETTLEMENT AGREEMENT - Page 7 of 7 (Re: Floten Rezone - RZ-2005-7) (May 21, 2008) EXHIBIT A 2 3 4 5 6 7 8 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 9 FLOTEN INVESTMENTS II LLC, NO. 07-2-38952-1 NT 10 and THEODORE NIXON, 11 12 Plaintiffs/Petitioners, MOTION TO MOD FY 13 V. STAY OF PROCE DINGS 14 CITY OF KENT, a municipal 15 corporation, Defendant. 16 17 18 I. RELIEF REQUESTED Plaintiffs/Petitioners, Floten Investments II LLC and T eodore Nixon and 19 20 Defendant/Respondent City of Kent move the court for an order odifying the stay of 21 proceedings for the purpose of allowing the Kent City Council t consider approving the Plaintiff's rezone request without conditions, in other words, t consider approving 22 the hearing examiner's October 15, 2007, recommendation on the Meridian Banks 23 24 Rezone Proposal under Kent City File No. RZ-2005-7/KIVA #2052281, without conditions. 25 26 MOTION TO MODIFY MONTGOMERY PURDUE B ANKINSHW&AUSTiNPLLC STAY OF PROCEEDINGS-1 AMEN ATLAw jahV 1MotenmvasUnenlslNlotenb\settlement\pldlmo0ontollttstay5 21-08.tloc 5300 COL 1A CENTER 701 FUrr AVENUE SEATTLE, A 98100-7096 (206) 70"TEL (206)6 "N FAX 1 II. STATEMENT OF FACTS 2 On February 22, 2008, this court entered an order, among others, amending the 3 writ of prohibition dated January 11, 2008. Plaintiffs/Petitioners, FI ten Investments II ' 4 LLC and Theodore Nixon have appealed this order and have provided a cash bond 5 to stay the enforcement of the order. RAP 8.1(b)(2). The matter i currently pending 6 before Division I of the Court of Appeals. 7 III. STATEMENT OF ISSUES 8 Should the court enter an order modifying the stay of p oceedings for the 9 purpose of allowing the Kent City Council to consider app ving the hearing 10 examiner's October 15, 2007 recommendation on the Meridi n Banks Rezone 11 Proposal under Kent City File No. RZ-2005-7/KIVA#2052281, w0 out conditions? 12 IV. EVIDENCE RELIED UPON 13 The pleadings and documents contained in the court file of this matter. 14 V. LEGAL ARGUMENT 15 The enforcement of this court's order amending the writ of p ohibition has been 16 stayed while the order is reviewed by the Court of Appeal . RAP 8.1(b)(2). 17 Plaintiffs/Petitioners, Floten Investments II. LLC and The dore Nixon and 18 Defendant/Respondent City of Kent wish to allow the Kent City Council the 19 opportunity to consider approving the hearing examiner's October 15, 2007 20 recommendation on the Meridian Banks Rezone Proposal under Kent City File No. 21 RZ-2005-7/KIVA#2052281, without conditions. 22 The parties request that the court enter an order modifying the stay of 23 enforcement to allow the Kent City Council to consider approving the rezone without 24 conditions. The parties have agreed that any decision other than approval without 25 conditions would be void and without legal effect and will not result in settlement. 26 MOTION TO MODIFY MONTGOIVIERY PURDUE BL SHIP&AUSTIN PLLC STAY OF PROCEEDINGS-2 ATTORNEYSATLAW tahlMoteninvestmentsulNotenbtset0ementlpldMoBontoldlstay5.21-08doe 550000L CENTER 701 FWM A UE SEATI'LE,WA 81047096 (a06)6ttt.7o S TEL (206)625- FAX 4 ' 1 DATED this day of April, 2008. 2 3 MONTGOMERY PURDUE BLANKINSHIP WILLIAMSON LA OFFICE & AUSTIN PLLC 4 5 By: By: 6 Joseph A. Hamell Bill H. Williams n WA State Bar No. 29423 WA State Bar o. 4304 7 Attorneys for Floten Investments II LLC Attorneys for FI ten and Theodore Nixon and Theodore ixon 8 9 CITY OF KENT ATTORNEY'S OFFICE KEATING, BUCK IN & MCCORMACK, INC., P.S. 10 11 By. By. Kim Adams Pratt Stephanie E. Croll 12 WA State Bar No. 19798 WA State Bar o. 18005 Attorneys for the City of Kent Attorneys for t e City of Kent 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MOTION TO MODIFY MONTGOMERY PURDUE BL SHIP&AUSTIN PLLC STAY OF PROCEEDINGS-3 ATTORNEY AT LAW jah4.,WotenmvestmentsiiAolenblset0ementlpld4nobontohttstay5-21-08_doe 550010E CENTER 701 FQ�T9 VENUE BEAT"W 98104-7096 (206)682- 90TEL (206)US 534 FAX 1 2 3 4 5 6 7 8 SUPERIOR COURT OF WASHINGTON FOR KIN COUNTY 9 10 FLOTEN INVESTMENTS 11 LLC, NO. 07-2-38952-1 NT and THEODORE NIXON, 11 12 Plaintiffs/Petitioners, 13 ORDER MODIFYING STAY OF V. PROCEEDINGS 14 CITY OF KENT, a municipal 15 corporation, Defendant. 16 17 18 This matter having come before the court on Plaintiffs Petitioners, Floten 19 Investments II LLC and Theodore Nixon, and the Defendant/ espondent City of 20 Kent's motion for an order modifying the stay of proceedings for the purpose of 21 allowing the Kent City Council to consider approving the hearing xaminer's October 15, 2007 recommendation on the Meridian Banks Rezone Prop sal under Kent City 22 File No. RZ-2005-7/KIVA#2052281, without conditions. 23 This matter was considered without oral argument. The C urt considered the 24 25 pleadings filed in this action and the following: 2s 1. Motion for an Order Modifying Stay of Proceedings; ORDER MODIFYING STAY OF PROCEEDINGS MONTGOMERY PURDUE BL NKINSHEP&AUSTIN PLLC -1 ATTORNEY ATLAW jahVNotenlnvestmentsOMotenblset8ementlpldlorderrnoddyingstey5-21-08doe 5500 COLUM A CENTER 701 FIFTH NEWE SEATTLE,W 98IW7096 (206)6SVi 190 UL (206)6ZS 7 FAX 1 2. 2 3. 3 Based on the stipulation of the parties and the evidence presented, It Is 4 Ordered: 5 The stay of proceedings in this matter is modified as foll ws: the Kent City 6 Council may consider approving the hearing examiner's ctober 15, 2007 7 recommendation on the Meridian Banks Rezone Proposal under Kent City File No. 8 RZ-2005-7/KIVA #2052281, without conditions, which granted and approved the 9 Plaintiff's rezone application without conditions. 10 DONE IN OPEN COURT this day of April, 2008. 11 12 Judge/Court Commissioner 13 Presented by: 14 MONTGOMERY PURDUE WILLIAMSON LAW O FICE BLANKINSHIP & AUSTIN PLC 15 16 By By: 17 Joseph A. Hamell Bill H. Williamson WA State Bar No. 29423 WA State Bar No. 4304 18 Attorneys for Petitioner Attorneys for Petit oner 19 20 CITY OF KENT KEATING, BUCKLIN 8. McCORMACK, INC., P.S. 21 22 By Kim Adams Pratt By: 23 WA State Bar No. 19798 Stephanie E. Croll 24 Attorneys for City of Kent WA State Bar No 18005 Attorneys for City of Kent 25 26 ORDER MODIFYING STAY OF PROCEEDINGS MONTGOMERY PURDUE BL KINSHIP&AUSTIN PLLC -2 ATTORNdY5 TLAW )aN-vwoteninvestmentsimotewseWsmentod\orderrnodlymgstay5-21-06.doc 5500 COLUM4 CENTER 701FUrMAVENUE SEAITLE,WA 8104-7096 (206)U2-70 10 TEL (206)625-9534 FAX EXHIBIT B i ORDINANCE NO. AN ORDINANCE of the City Council of t I ie City of Kent, Washington, relating to land use and oning, specifically the rezoning of approximately 6.32 cres of property located at 25840 135th Lane Southea t from SR-4.5 (Single-Family Residential, 4.5 units per cre) to SR-6 (Single-Family Residential, 6 units per acre). (Meridian Banks Rezone RZ-2005-7). RECITALS A. An application was filed on June 30, 2005, to re one approximately 6.32 acres of property located at 25840 135 h Lane Southea t (the "Property") from SR 4.5 (Single-Family Residential, 4.5 units per acre) to R 6 (Single-Family Residential, 6 units per acre). (Meridian Banks Rezone, #RZ-2005-7). A preliminary plat application was also filed for the Property (SU- 005-11). B. The City's SEPA responsible official issued a Miti ated Determination of Nonsignificance (MDNS) (#ENV-2005-57) for the proposed rezone on January 19, 2007. C. An open record hearing on the rezone was held before the hearing examiner on May 10, 2007; May 23, 2007, and August 15, 20 7. On October 15, 2007, the hearing examiner issued findings and conclusion that the Meridian Banks Rezone is consistent with the city's Comprehensive Plan; that the proposed rezone and subsequent development activity would be c mpatible with the development in the vicinity; that the proposed rezone will no unduly burden the transportation system in the vicinity of the property with significant adverse impacts that cannot be mitigated; that circumstances have changed since the establishment of the current zoning district to warrant the pr posed rezone; and that the proposed rezone will not adversely affect the health, safety, and general 1 Merl an Banks Rezone welfare of the citizens of the City of Kent. Based on t ese findings and conclusions, the hearing examiner recommended that "...the [Meridian Banks] application for a rezone from SR-4.5 to SR-6...be GRANTED with 3ut conditions." D. On November 20, 2007, the City Council voted by Motion to remand the Meridian Banks Rezone back to the hearing examiner f r consideration of certain issues that were subsequently listed in Resolution 1774 passed by the City Council on December 11, 2007. E. On December 10, 2007, the applicant filed a La d Use Petition Act Appeal Pursuant To RCW 36A.70C.070; Petition For Extrao dinary Writ Relief; Complaint for Declaratory & Injunctive Relief, King County S perior Court, Case No. 07-2-38952-1 KNT. On December 28, 2007, the applicant filed a second Land Use Petition Act Appeal Pursuant To RCW 36A.70C.070; Petition For Extraordinary Writ Relief; Complaint for Declaratory & Injunctive Relief, King County Superior Court, Case No. 07-2-41012-1 KNT. F. On , 2008, Council accepted the findings and conclusions of the hearing examiner, and adopted the hearing examiner's recommendation, attached as Attachment 1, that "...the [Meridian Banks] appli ation for a rezone from SR-4.5 to SR-6...be GRANTED without conditions." NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. - Recitals Incorporated as Findings. Th foregoing recitals, which are incorporated by this reference, constitute the coun il's findings on this matter. SECTION 2. - Rezone. The property located at 25840 135"' Lane Southeast in Kent, Washington consisting of approximately 6. 2 acres depicted in Exhibit"A" (marked "Vicinity Map"), attached and incorporat d by this reference, and legally described in Exhibit "B", attached and incorporat by this reference, 2 Merid an Banks Rezone is rezoned from SR 4.5 (Single-Family Residential, 4.5 units per acre) to SR 6 (Single-Family Residential, 6 units per acre). The City of Kent oning map shall be amended to reflect the rezone granted above. SECTION 3. - SeverabJL1&4 If any one or more sectio s, sub-sections, or sentences of this ordinance are held to be unconstitutional or Inralid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 4. - Effective Date. This ordinance shall toe effect and be In force five (5) days from and after its publication as provided by law. SUZETTE COOKE, MAYOR ATTEST: BRENDA]ACOBER, CITY CLERK APPROVED AS TO FORM: TOM BRUBAKER, CITY ATTORNEY PASSED: day of , 2008. APPROVED: day of , 2008. PUBLISHED: day of , 2008. 3 Me ri an Banks Rezone i I hereby certify that this is a true copy of Ordina ce No. passed by the City Council of the City of Kent, Washington, a d approved by the Mayor of the City of Kent as hereon indicated. (SEAL) BRENDA]ACOBER, CITY CL IRK P•\Gvll\Ordinance\Rezone-MerldlanBankcLUPA.doc 4 Merl ian Banks Rezone EXHIBIT C 1 2 3 4 5 6 7 S SUPERIOR COURT OF WASHINGTON FOR KIN COUNTY 9 FLOTEN INVESTMENTS II LLC, NO. 07-2-38952-1 KNT 10 and THEODORE NIXON, 11 12 Plaintiffs/Petitioners, 13 MOTION TO REI STATE STAY OF V. PROCEEDINGS 14 CITY OF KENT, a municipal 15 corporation, Defendant. 16 17 18 I. RELIEF REQUESTED Plaintiffs/Petitioners, Floten Investments II LLC and T eodore Nixon and 19 20 Defendant/Respondent City of Kent move the court for an ord r reinstating the stay 21 of proceedings under RAP 8.1(b). 22 II. STATEMENT OF FACTS 23 On February 22, 2008, this court entered an order, among others, amending the 24 writ of prohibition dated January 11, 2008. Plaintiffs/Petitioners Floten Investments II 25 LLC and Theodore Nixon have appealed this order and have rovided a cash bond 26 MOTION TO REINSTATE STAY OF MONTGOMERY PURDUE LANKINSHIP&AUSTIN PLLC PROCEEDINGS-1 ATTO ATLAW jahV\fl0otenmvestmentshMotenblset0emenApldvno0ontorelnstatestey6-0&OB,doc 000 COL CENTER 701 AVENUE SEA WA"104-7096 (206) 7090 M&L (206) FAX F I to stay the enforcement of the order. RAP 8.1(b)(2). The matter i currently pending 2 before Division I of the Court of Appeals. 3 On , this court entered an order modi ing the stay of 4 proceedings for the purpose of allowing the Kent City Council to onsider approving 5 the hearing examiner's October 15, 2007 recommendation on t e Meridian Banks 6 Rezone. On , the Council declined to ap rove the hearing 7 examiner's October 15, 2007 recommendation on the Meridian Ba ks Rezone. 8 III. STATEMENT OF ISSUES 9 Should the court reinstate the stay of proceedings as reque ted by the moving 10 parties? 11 IV. EVIDENCE RELIED UPON 12 The pleadings and documents contained in the court file of thi matter. 13 V. ARGUMENT 14 Plaintiffs/Petitioners, Floten Investments II LLC and Th odore Nixon and 15 Defendant/Respondent City of Kent sought to allow the Ken City Council the 16 opportunity to consider approving the hearing examiner's ctober 15, 2007 17 recommendation on the Meridian Banks Rezone Proposal unde Kent City File No. 18 RZ-2005-7/KIVA#2052281, without conditions. This court issued an order modifying 1g the stay of proceedings to allow such action. The City Co ncil subsequently 20 considered the rezone, but declined to approve it. Therefore, he moving parties 21 request that the court enter an order reinstating the stay of pro c edings under RAP 22 8.1(b), which will return the parties and the proceedings to the sta us quo. 23 24 25 26 MOTION TO REINSTATE STAY OF MONTGOMERY PURDUE B SHIP&AusTIN PLLC PROCEEDINGS-2 ATTORNEY ATLAW tahU W atemnvestmentsilNoten6\set0ement\pldlmotionloremstalestay6-0308.doe 5500 COL CENTER 701 FHTH VENUE SEATTLF,WA 96104-7096 (206): TILL (206)62S. FAX i 1 DATED this day of , 2008. 2 3 MONTGOMERY PURDUE BLANKINSHIP WILLIAMSON LA OFFICE & AUSTIN PLLC 4 5 By: By: 6 Joseph A. Hamell Bill H. William on WA State Bar No. 29423 WA State Bar No. 4304 7 Attorneys for Floten Investments II LLC Attorneys for loten and Theodore Nixon and Theodore Nixon 8 9 CITY OF KENT ATTORNEY'S OFFICE KEATING, BUCKLIN & MCCORMACK, INC., P.S. 10 11 By: By: Kim Adams Pratt Stephanie E. ro!I 12 WA State Bar No. 19798 WA State Bar No. 18005 Attorneys for the City of Kent Attorneys for he City of Kent 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MOTION TO REINSTATE STAY OF MONTGOMERY PURDUE LANMSHIP&AUSTIN PLLC PROCEEDINGS-3 Arco sATLAW jah�.\i\floteninvestmentsuVlotenblset0ementlpldvnobontoreinstalestay6-03 TER 08doe 550000L CEN 701 AVENUE SEATTLE, A M04-7096 (206) 2.7090TaL (206) 9534 FAX S � 1 2 3 4 5 6 7 8 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 9 FLOTEN INVESTMENTS II LLC, NO. 07-2-38952-1 K T 10 and THEODORE NIXON, 11 12 Plaintiffs/Petitioners, ORDER REINSTAT NG STAY OF 13 V. PROCEEDINGS 14 CITY OF KENT, a municipal 15 corporation, Defendant. 16 17 This matter came before the court on Plaintiffs/Petitioners, A ten Investments II 18 1s LLC and Theodore Nixon, and the Defendant/Respondent City o Kent's motion for 20 an order reinstating the stay of proceedings under RAP 8.1(b). 21 This matter was considered without oral argument. The C urt considered the 22 pleadings filed in this action and the following: 23 1. Motion for an Order Reinstating Stay of Proceedings; 2. 24 3. 25 26 ORDER REINSTATING STAY OF MONTGOMERY PURDUE BL NICINSHIP&AUSTIN PLLC PROCEEDINGS- 1 AITORNEYSATLAW 1ahlt 1110olenmveslmenlsrllnolenblsel0emenlWdbrdreinslateslay5-21-OB.doc SWO COLUMB CENTER 701 FIFTH VENUE SEATTLE,WA 98100-70% (206)682-7 TEL (206)625- FAX 1 Based on the argument of counsel, the evidence presented, It I Ordered: 2 The stay of proceedings in this matter is reinstated as provided in RAP 8.1(b). 3 DONE IN OPEN COURT this day of , 2008. 4 5 Judge/Court Commissione 6 Presented by: 7 MONTGOMERY PURDUE WILLIAMSON LAW OF ICE 8 BLANKINSHIP &AUSTIN PLLC 9 10 By By: Joseph A. Hamell Bill H. Williamson 11 WA State Bar No. 29423 WA State Bar No. 304 12 Attorneys for Petitioner Attorneys for Petiti ner 13 CITY OF KENT KEATING, BUCKLIN & McCORMACK, 14 INC., P.S. 15 By 16 Kim Adams Pratt WA State Bar No. 19798 By: 17 Attorneys for City of Kent Stephanie E. Croll WA State Bar No. 18005 18 Attorneys for City of Kent 19 20 21 22 23 24 25 26 ORDER REINSTATING STAY OF MONTGOMERY PURDUE BL WINSHIP&AUSTIN PLLC PROCEEDINGS-2 ATTORNEYS ATLAW tahli NfloternnvestmentsuNotenbise10emen11pkAordrainstatestayS-21-08 doe 5500 COLUNID CENTER 701 FNTH VENUE SEATTLE.WA 99104-7096 (206)60Z•7 8T9L (20062" FAX EXHIBIT D i 1 2 3 4 5 6 7 8 SUPERIOR COURT OF WASHINGTON FOR KIN COUNTY 9 10 FLOTEN INVESTMENTS II LLC, NO. 07-2-38952-1 NT and THEODORE NIXON, 11 12 Plaintiffs/Petitioners, MOTION TO DISMI S 13 V. 14 CITY OF KENT, a municipal 15 corporation, Defendant. 16 17 18 I. RELIEF REQUESTED Plaintiffs/Petitioners, Floten Investments II LLC and Th odore Nixon and 19 20 Defendant/Respondent City of Kent move the court for an or er dismissing this matter with prejudice and without an award of attorney fees or cos s to any party. 21 22 II. STATEMENT OF FACTS On February 22, 2008, this court entered an order, among o ers, amending the 23 24 writ of prohibition dated January 11, 2008. Plaintiffs/Petitioners, F oten Investments 11 25 LLC and Theodore Nixon have appealed this order and have pr vided a cash bond 26 to stay the enforcement of the order. RAP 8.1(b)(2). MOTION TO DISMISS- 1 MONTGOMERY PURDUE BL NKINSHIP&AUSTIN PLLC laM\t\Oolenmveslmentsil0otenb\seltlemenl\plAahmobonlodisniss20060603.doc ATTORNEY AT LAW 5500 COLUIVII CENTER 701 FIFTH VENUE SEATTLE,W 98104-7096 1206)682-7 90 TBL (206)62s. FAX i I On this court entered an order modi ing the stay of 2 proceedings for the purpose of allowing the Kent City Council to c nsider approving 3 the hearing examiner's October 15, 2007 recommendation on th Meridian Banks 4 Rezone. On , the Council approved the hearing a aminer's October 5 15, 2007 recommendation on the Meridian Banks Rezone. 6 Plaintiffs/Petitioners, Floten Investments II LLC and The dore Nixon and 7 Defendant/Respondent City of Kent have settled all of their claims i this proceeding. 8 III. STATEMENT OF ISSUES s Should the court dismiss this action with prejudice and wi hout an award of 10 attorney fees or costs to any party as requested by the moving pa ies? 11 IV. EVIDENCE RELIED UPON 12 The pleadings and documents contained in the court file of thi matter. 13 V. ARGUMENT 14 Plaintiffs/Petitioners, Floten Investments II LLC and Th odore Nixon and 15 Defendant/Respondent City of Kent sought to allow the Ken City Council the 16 opportunity to consider approving the hearing examiner's ctober 15, 2007 17 recommendation on the Meridian Banks Rezone Proposal unde Kent City File No. 18 RZ-2005-7/KIVA #2052281, without conditions. This court issued an order modifying 19 the stay of proceedings to allow such action. The City C uncil subsequently 20 approved the rezone. Plaintiffs/Petitioners, Floten Investments II LLC and Theodore 21 Nixon and Defendant/Respondent City of Kent have settled all o their claims in this 22 proceeding and request that the court enter an order dismissin the claims in this 23 matter with prejudice and without an award of attorney fees or co is to any party. 24 25 26 MOTION TO DISMISS-2 MONTGOMERY PURDUE B KINSHIP&AUSTIN PLLC lahV NfloteninvestmentsuVbtenbisetuemenNldyahmobonlodismiss200t30603 doc ATTO ATLAW 5500 COLUM�Lk CENTER 701 FIFtH AVENUE SEATTLE,W 99104.7096 (200437,090 TEL (206)62S FAX i 1 DATED this day of , 2008. 2 3 MONTGOMERY PURDUE BLANKINSHIP WILLIAMSON LAW FFICE &AUSTIN PLLC 4 5 By: By: 6 Joseph A. Harrell Bill H. Williamso WA State Bar No. 29423 WA State Bar N . 4304 7 Attorneys for Floten Investments II LLC Attorneys for Flo en and Theodore Nixon and Theodore Nixon 8 9 CITY OF KENT ATTORNEY'S OFFICE KEATING, BUCKLI & MCCORMACK, INC., P.S. 10 11 By: By: Kim Adams Pratt Stephanie E. Cr II 12 WA State Bar No. 19798 WA State Bar N . 18005 Attorneys for the City of Kent Attorneys for th City of Kent 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MOTION TO DISMISS-3 MONTGOMERY PURDUE BL KINSHIP&AUSTIN PLLC lah\i\t\noleninveslmentsnlHotenb\settlement\pldyahmobontod+smiss2p080603 doc ATTORNEYS TLAW SSOOCOLUMI CENTER 701 FR+T'H A I SEATTLE,WA 104-7096 (206)682-70 0 TEL (206)625- FAX 1 2 3 4 5 6 7 SUPERIOR COURT OF WASHINGTON FOR KIN COUNTY 8 FLOTEN INVESTMENTS II LLC, NO. 07-2-38952-1 KNT 9 and THEODORE NIXON, 10 Plaintiffs/Petitioners, 11 ORDER OF DISMI SAL V. 12 CITY OF KENT, a municipal 13 corporation, 14 Defendants/Respondent. 15 16 17 This matter came before the court on Plaintiffs/Petitioners, Floten Investments II 18 LLC and Theodore Nixon, and the Defendant/Respondent City of Kent's motion to 19 dismiss. 20 This matter was considered without oral argument. The C urt considered the 21 pleadings filed in this action and the following: 22 1. Motion to Dismiss; 23 2 24 3. 25 26 ORDER OF DISMISSAL- 1 MONTGOMERY PURDUE B KINSHIP&AUSTIN PLLC ATTORNEY5 AT LAW SS00 COLUMI IA CENTER 701 F 'M VENUE SEATTLE,WA 98304-7096 (206)682-890 Ta (206)625- A FAX I Based on the argument of counsel, the evidence presented, It Is Ordered: 2 THIS MATTER is dismissed with prejudice, with no award o attorney fees or 3 costs to any party. 4 DONE IN OPEN COURT this day of , 2008. 5 6 Judge/Court Commissio er Presented by: 8 MONTGOMERY PURDUE WILLIAMSON LAW OF ICE BLANKINSHIP &AUSTIN PLLc 9 10 By By Joseph A. Hamell Bill H. Williamson 11 WA State Bar No. 29423 WA State Bar No 4304 Attorneys for Petitioners Attorneys for Peti ioners 12 13 CITY OF KENT KEATING, BUCKLIN McCORMACK, INC., P.S. 14 15 By By. Kim Adams Pratt Stephanie E. Croll 16 WA State Bar No. 19798 WA State Bar No 18005 Attorneys for City of Kent Attorneys for City of Kent 17 18 19 20 21 22 23 24 25 26 ORDER OF DISMISSAL-2 MONTGOMERY PURDUE B YJNSHIP&AUSTIN PLLC ATTORN ATLAW 5500 COLU U CENTER 701 Fa+'I'H VENUE SEATTLE,W 98I00-7096 (206)682- TEL (2%) FAX EXHIBIT E e 1 2 3 4 5 6 7 8 NO. 61332-4-1 9 COURT OF APPEALS DIVISION I OF THE STATE OF WASHINGTON 10 FLOTEN INVESTMENTS II LLC, 11 and THEODORE NIXON, Appellants, 12 MOTION FOR VOLUNTARY 13 V. WITHDRAWAL OF REVIEW 14 CITY OF KENT, a municipal corporation, 15 Respondent. 16 17 Appellants Floten Investments II LLC and Theodore Nixon ar d Respondent City 18 of Kent stipulate to the voluntary withdrawal of review of this mattE r without an award 19 of fees or costs to any party. 20 DATED this day of , 2008. 21 MONTGOMERY PURDUE CITY OF KENT 22 BLANKINSHIP &AUSTIN PLLC 23 By By: Joseph A. Hamel) Kim Adams Pratt 24 WA State Bar No. 29423 WA State Bar No. 9798 25 Attorneys for Appellants Attorneys for Resp ndent 26 MOTION FOR VOLUNTARY WITHDRAWAL OF MONTGOMERY PURDUE B KINSHIP&AUSTIN PLLC REVIEW-1 ATTORNEYS TLAw SM COLUMSIA CENTER 701 FIFTH A 0jaM NOotenmvestmenlstiMotenbletemenflpldlstipmotvolwithddctapp doc SEA $2WA 9 170% 709 TEL (206)625-M FAX i REQUEST FOR MAYOR' SIGNATURE KEN T Please Fill in All Applicable Boxes WASHINGTON Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH HE LAW DEPARTMENT) Originator: Phone (Originator): U Date Sent: Date Required: Return Signed Document to: CONTRACT TERMINATION DATE: VENDOR NAME: DATE OF COUNCIL APPROVAL: Brief Explanation of Document: All Contracts Must Be Routed Through the Law Department (This Area to be Con pleted 6y the Law Department) Received: LD I I ' / I tc, Approval of Law Dept.: Law Dept. Comments: ` Date Forwarded to Mayor: Shaded Areas to Be Completed by Administration Staff Received: Recommendations & Comments: Disposition: b� Date Returned; � Iage 5870 • 31/05