HomeMy WebLinkAbout1652RESOLUTION NO / b 5).....
A RESOLUTION of the city council of the city of
Kent, Washmgton, adoptmg findmgs of fact, concluswns of
law, and a declSlon regardmg the quasi-JUdicial, closed record
appeal of the Kent Statwn prehmmary plat file no SU-2002-
9
WHEREAS, on July 15, 2003 the Kent City Council siltmg as a quasi-Judicial
body heard a closed record appeal brought by Don Shaffer m h1s mdlVldual capacity, Don
Shaffer as a representalive of Kent C.A RES, and Don Shaffer as president of Northwest
Alliance, Inc., and
WHEREAS, the Council voted unammously to deny the closed record appeal
and mstructed that wntten findmg of fact, concluswns oflaw, and a decisiOn be drafted for
adoptiOn by Council, and
WHEREAS, findmgs of fact, conclusiOns of law, and a deciSion have been
drafted m accord With the Council's decisiOn and are attached as Exh1b11 A to this
Resolutwn; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES
HEREBY RESOLVE AS FOLLOWS
SECTION 1. AdoptiOn The Kent City Council hereby adopts the attached
Exhibit A as Its findmg of fact, concluswns of law and decisiOn m the closed record appeal
Kent Station Preliminary Plat
Appeal Findings and Ct?nclusions
of Kent StatiOn prehmmary plat file No SU-2002-9
SECTION 2. Effec!ive Date This resolutiOn shall take effect and be m force
Immediately upon Its passage.
PASSED at a regular meetmg of the city council of the City ofKent, Washmgton this
j_:l__ day of August, 2003
CONCURRED m by the mayor ofthe City of Kent, this 1'1 day of August, 2003
ATTEST:
~i!t~ .BRENDA JACOBE CITY CLERK
APPROVED AS TO FORM·
AtAAA-~leL
TOM BRUBAKER, CITY ATTORNEY
I hereby certi1y that this IS a true and correct copyofResolutwn No /b5d-, passed
by the city council ofthe City of Kent, Washmgton, the 11 day of J!me, 2003. -tl<j~
P \Ctvtl\ResolutJOn\KentStatJonFmdmgsConclustonsDectsJOn doc
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2 Kent Station Preltminary Plat
Appeal Findings and Conclusions
INRE
EXHIBIT A
BEFORE THE CITY COUNCIL
OF THE CITY OF KENT
No SU-2002-9
THE APPEAL OF THE PRELIMINARY
PLAT OF KENT STATION MASTER PLAN
KIV No. RPP3-2023555
KENT C.A.R E.S. c/o DON SHAFFER AND
NORTHWEST ALLIANCE, INC , FINDINGS OF FACT, CONCLUSIONS
OF LAW AND DECISION
Appellants,
v.
KENT STATION, LLC, (APPLICANT); AND
CITY OF KENT (OWNER),
Respondents
INTRODUCTION
THIS MATTER came on before the Kent City Council on a quasi-JUdicial, closed-record
appeal brought by Kent CARE S , c/o Don Shaffer, Don Shaffer as an mdlVldual, and
Northwest Alliance, Inc. (collectively "Kent C A RES"), on July 15, 2003 The followmg IS a
summary of mformatwn regardmg the subject property, land use applicatiOns and the appeal
filed by Kent C A R E S
File No.: Kent StatiOn Master Plan Development ("MPD") No. KIVA
RPP 3-2023555 and Prehmmary Plat File No SU-2002-9
Annlicant: Kent Statwn, LLC
Pronertv Owner: City of Kent
EXHIBrT A -'""
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-I
Location: The s1te IS bounded by James Street to the North, Fourth
Avenue South on the West, F1rst Avenue South on the East,
and Temperance Street on the South
Pro i ect ProJ!osal: To develop approximately 18 2 acres mto a comrnercJal,
res1dentJal and public serv1ce facilities through a master plan
development cons1stmg of a planned umt development
("PUD") and a prehmmary and final plat The plat portiOn of
the MPD IS to subdlVlde approximately 18 2 acres mto 20
commercJallots
@plication Filed: November 13,2002
Open Record Hearinl!: Date: January 16, 2003
Hearin~:; Examiner {OJ!en January 30, 2003
Record) Decision Date:
HearinK Examiner {OJ!en PUD -APPROVED, w1th conditiOns,
Record) Decision: Prehmmary Plat-APPROVED, with conditions
Reguests for Reconsideration
{bl: Kent C.A.R.E.S. and Kent
Station LLC): February 5, 2003
HearinK Examiner Decision on Kent Statwn, LLC request-DENIED (February 13, 2003),
Reguests for Reconsideration: Kent C A R.E S. 's request-DENIED (February 13, 2003)
Closed-Record Appeal filed: February 20, 2003
Closed Record AJ!J!eal July 15, 2003
HeariRI! and Decision Date:
Closed Record AJ!J!eal I) Mo!lons to Stnke New (Supplemental) Evidence by Kent
Decision: CARES -GRANTED,
2) Motwn by the City of Kent to supplement the record w1th
new evidence --GRANTED;
2) Closed Record Appeal by Kent C.A RES -DENIED,
3) Heanng Exammer's January 30 and FebnJary 13, 2003
DecJsJOns -AFFIRMED.
Argument Presented B1:: For Property Owner and Respondent C1ty of Kent
Ms. K1m Adams Pratt, Ass1stant C1ty Attorney
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -2
For Apphcant and Respondent Kent StatiOn, LLC:
Mr Donald E Marcy, Cairncross & Hemppleman
Attorney for Kent StatiOn, LLC
For Appellant Kent C A.R E S, Don Shaffer, and Northwest
Alliance Inc.. Mr. Don Shaffer
Appeal Exhibits: Considered by the City Counc!l
I) Heanng Exammer's Dec!Slon of January 30, 2003,
mcludmg Exh1b1ts 1-8 and attachments to each Exhibit,
2) Kent C.A.R.E.S. 's "Request for Reconsideration"
(February 5, 2003);
3) Heanng Exammer's "Demal of Requests for
Recons1deratwn" (February 13, 2003),
4) Kent CARES 's "Not1ce of Appeal Before Kent C1ty
Counc!l," dated February 19,2003 (filed on February 20,
2003), mcludmg Exhibits A-D and attachments to those
Exhibits,
5) Kent C.A R E.S.'s "Order for Transcnpt" and
attachments thereto (February 20, 2003),
6) "Verbatim Mmutes" of the Heanng Exammer heanng
held on January 16, 2003 (56 pages),
7) ResolutiOn No 896 (June 16, 1980);
8) "Statement of Heanng Officer" dated Apnl 2, 2003;
9) May 20, 2003 letter from MIChael C Walter to Kent
C A.R.E.S , c/o Don Shaffer;
10) City of Kent "Not1ce of a Closed-Record Appeal
Heanng" dated June 6, 2003,
II) June 13, 2003 letter from Kim Adams Pratt, Assistant
C1ty Attorney, to Michael C. Walter re. C1ty's Motion to
Supplement and supplemental ev1dence, and obJection to
Kent C A R.E S. 's supplemental ev1dence, and
attachments thereto;
12) June 13, 2003 letter from Donald E Marcy, Attorney for
Kent Statwn, LLC, to Michael C. Walter, objectmg to
Kent C.A.R.E S 's supplemental evidence,
13) June 16, 2003 letter from Don Shaffer to Kent StatiOn,
LLC, and C1ty of Kent;
14) June 13, 2003 letter from Don Shaffer to Michael C.
Walter With 3 pages of attachments,
15) June 16, 2003 letter from Kim Adams Pratt, Assistant
City Attorney, to Michael C Walter, respondmg to Don
Shaffer's June 16, 2003 letter, and 4 pages of
attachments;
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -3
16) June 12, 2003 Memorandum from Tom Brubaker, C1ty
Attorney, to Kent C1ty Counc1lmembers (and others);
17) June 13, 2003 letter from Tern Hansen, Legal Ass1stant
to M1chael Walter, to Kent CARES and Kent Statton,
LLC (attachmg June 12, 2003 Memorandum from Tom
Brubaker to C1ty Counc!lmembers),
18) June 16, 2003 letter from M1chael C Walter to Kent
C.A R.E S., w1th coptes to Kent Statton, LLC and others,
attachmg Donald Marcy's June 13, 2003 letter,
19) June 17, 2003 letter from Mtchael C. Walter to Kent
C.A.R E.S., Kent Statton, LLC, and C1ty of Kent, re:
poss1ble contmuance of closed record appeal hearmg;
20) June 17, 2003 letter from Don Shaffer to M1chael C
Walter re: response to C1ty's Memorandum (3 pages),
21) June 20, 2003 letter from M1chael C Walter to Kent
C.A.R.E.S., Kent Statton, LLC, and C1ty of Kent re·
contmuance ofthe closed record appeal heanng (and 7
pages of attachments);
22) July 14, 2003 letter from Michael C Walter to Kent
C.A R.E.S , Kent Statton, LLC, and C1ty of Kent re time
allotment for appeal anrument
Offered but not considered by the C1ty Counc1l
1) May 31, 2003 letter (2 pages) from Don Shaffer to
M1chael C Walter re. proposed evidenced to supplement
record, and Exhibits A-C, and attachments thereto
FINDINGS OF FACT
1. On February 20, 2003, Mr Don Shaffer, as an mdivtdual, as Prestdent of Northwest
Alhance, Inc., and as a representative of Kent C A.R E S., timely filed wtth the Ctty a
Notice of Appeal to the Kent C1ty Counc1l of planned umt development (PUD) and
prehmmary plat dec1s10ns by the Ctty's Heanng Exammer of the Kent Statton Master
Plan. Kent C A.R.E S. IS a cttizen actwn organ1zatwn based in the C1ty of Kent 2-20-03
"Notzce of Appeal before Kent Clty Counczl"
2 Kent C.A.R.E.S.'s appeal challenged, on var1ous grounds, two deciSions of the C1ty's
Heanng Exammer, both dated January 30, 2003 The first was the Heanng Exammer's
approval of the prehmmary plat, w1th condtttons, wh1ch approved a 20-lot d1v1s1on of
approximately 18 2 acres of the subject property. The second challenged dec1s10n was
approval of the PUD, with conditions, which authonzed a mixed-use development on the
subject property, mcludmg retatl, office, commumty college satelhte, cmema, grocery
store, restaurants, multi-family residential, open space and surface parkmg "Notzce of
Appeal before Kent Czty Counczl" (February 20, 2003)
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-4
3 Kent C.A.R.E.S. 's Not1ce of Appeal was timely filed and perfected, pursuant to
ResolutiOn No 896 (June 16, 1980), Kent C1ty Code ("KCC") 12.01.040 and 12 01.095.
4 On May I, 2003, the Kent C1ty Clerk sent correspondence to Don Shaffer mformmg h1m
that the closed record appeal of the Kent StatiOn Prelimmary Plat had been scheduled for
June 3, 2003, at the Kent C1ty Council meetmg May 1, 2003 Notzce
5 On May 20, 2003, Michael C. Walter, a legal adv1sor to the C1ty Council, adv1sed all
part1es to the appeal (Kent C A.R E S , Kent Statwn, LLC, and The City of Kent) of the
new date for the closed-record appeal heanng and the procedures and time limits
applicable to the appeal heanng Th1s letter-notice advised the part1es that the appeal
heanng had been rescheduled for June 17, 2003, at 7:00p.m., that the appeal heanng was
lim1ted to the ex1st1ng record before the heanng exammer, that no new ev1dence could be
presented unless the ev1dence was lim1ted to mformatlon that could not have been placed
on the record prevwusly, that only "argument" of the part1es' representatives would be
permitted, that each s1de would have 30 mmutes to present oral argument, that Kent
C.A R.E S.'s supplemental evidence, 1f any, was due to the C1ty Clerk's office no later
than June 4, 2003 at 4 30 p.m , and that any supplemental ev1dence by Kent Statwn,
LLC, or the C1ty of Kent, was due delivered to the City Clerk's office no later than June
13, 2003 at 4 30 p m May 20, 2003 letter from Mzchael C. Walter to Kent C A R.E S
6 On June 6, 2003, the Kent C1ty Clerk 1ssued to all part1es a "Notice of a Closed-Record
Appeal Heanng" for Kent C.A RES's appeal The Notice set the closed-record appeal
heanng for Tuesday, June 17, 2003, at 7·00 p m Notzce of a Closed-Record Appeal
Hearmg (June 6, 2003).
7. On June 4, 2003, Kent C A R.E.S , through Its representative Don Shaffer, timely
subm1tted to the Kent City Clerk Kent C.A RES 's proposed evidence to supplement the
record The supplemental evidence was attached to a May 31, 2003 two-page letter from
Mr. Shaffer as Exhibits A, B and C. Exh1b1t A IS a comp1lat10n of mformatwn from the
Department of Ecology's Hazardous Matenals S1tes L1st, published by the State of
Washmgton bi-annually m February and m August Exh1b1t B IS a page of text and a s1te
map from the C1ty's Phase II Environmental S1te Assessment Report for property south
of the Borden property, dated July of 2001 Exh1b1t Care 12 pages of excerpts from the
final supplemental Envuonrnental Impact Statement for the City's Downtown Strateg1c
Actwn Plan, dated Apnl 7, 1998 May 31, 2003 "Proposed Evzdence to Supplement
Record"
8 The supplemental ev1dence submitted by Kent CARE S 1s not "new mformatwn"
wh1ch could not have been placed m the record as of the January 16, 2003 Heanng
Exammer heanng The Council finds that all of the purportedly new mformatwn
submitted by Kent C A.R E S. was either created or generated pnor to the January 16,
2003 Heanng Exammer heanng, or was ava1lable and could have been put mto the record
as of January 16, 2003. Exh1b1t A of Kent C.A R E.S.'s supplemental evidence 1s a
document published by the State of Washmgton Department of Ecology b1-annually m
February and m August The mformatwn contamed on the DOE website was available m
January when the Hearmg Exammer held the open-record heanng m th1s matter.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-5
Furthermore, tlus evidence, Exhibit A, IS not relevant to any of the cntena for which a
subdlVISIOn IS to be evaluated. The Council also fmds that Exhibit A IS not relevant
because the rankmg for the Borden Chemical Plant site remams unchanged from the
August 2002 hst to the February 2003 list subnutted by Kent C.A.R.E S. as part of Its
supplemental evidence Id, June 13, 2003 letter from Kzm Adams Pratt to Mzchael C
Walter, June 13, 2003 letter from Donald E Marcy to Mzchael C Walter
9 Exh1b1t B of Kent C A.R.E.S.'s supplemental evidence IS mformation or documents
which were contamed m the C1ty's Phase II Environmental Site Assessment Report dated
July, 200 l. The City Council finds that all of this mformatwn, Exh1b1t B, IS not "new"
nor IS 1t evidence which could not have been placed on the record before the Heanng
Exammer at or as of January 16, 2003 open record heanng. Id
10 Exh1b1t C of Kent CAR E.S.'s supplemental evidence, compnsed of portwns of the
Fmal Supplemental Environmental Impact Statement for the City's Downtown Strategic
Actwn Plan, dated Apnl 7, 1998, was available to be submitted at or pnor to the January
16, 2003 Heanng Exammer open record heanng This evidence IS neither "new" nor was
It unavailable to be placed m the record as of January 16, 2003 Id
11 On June 13, 2003, the City of Kent, through Assistant City Attorney Kim Adams Pratt,
submitted the C1ty's supplemental evidence for the closed-record appeal heanng The
City Council finds that th1s supplemental evidence was timely submitted to both the City
Clerk's Office and Kent Station, LLC, and Kent C A.R.E S June 13, 2003 letter from
Kzm Adams Pratt to Mzchael C Walter
12. The two documents bemg submitted by the C1ty of Kent as part of Its supplemental
evidence-a March 12, 2003 letter from URS CorporatiOn to DOE, and a March 18, 2003
letter from DOE to URS CorporatiOn -constitute new mformatwn which could not have
been placed on the record as part of the heanng exammer open-record hearmg on January
16, 2003. Both documents and attachments were generated after the January 16, 2003
heanng and, therefore, constitute new mformatwn that could not have been placed on the
record prevwusly. Id.
13. The City Council finds that Kent C.A.R.E.S. received timely and actual notice of the
wntten obJections by the City of Kent and Kent Statwn, LLC, to Kent CARES 's
proposed supplemental evidence. The City Council finds that the City of Kent timely and
properly served -or attempted good service -on Mr Shaffer at his residence and the
designated place of busmess for Kent C.A.R.E.S, 2070-78'h Street North, Seattle, WA
98103, on June 13, 2003 at approximately 3·58 p.m Id, June 16, 2003 letter from Kzm
Adams Pratt to Mzchael C Walter
14. As a result of Kent C.A.R.E.S 's objection to the timeliness of service of documents
subnutted by the City and Kent Statwn, LLC, and to avmd any preJUdice to Kent
C.A R E.S., the City Council, on June 17, 2003, made a motwn, which was approved
unammously, to contmue Kent C.A.R.E S 's closed-record appeal heanng to July 15,
2003. All parties to the appeal were advised, pnor to the June 17, 2003 City Council
meetmg, of the possibility of a contmuance of the heanng to avoid preJUdice to Kent
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -6
C A.R.E.S. Id, June 17, 2003letter from Don Shaffer to M1chael C Walter, June 17,
2003 letter from M1chael C Walter to all parttes
15 All parties to the appeal were timely and properly advised of the new closed-record
appeal heanng date, July 15, 2003, on or about June 20, 2003 All parties to the appeal
were also advised both at the June 17, 2003 Council meetmg and agam on June 20, 2003
by letter, of a potential conflict of mterest by the Kent City Council m adjudJcatmg Kent
CAR E.S.'s appeal and that the "rule of necessity" as codified at RCW 42.36.090
permitted all City Counc1lmembers to fully partiCipate and vote m the closed-record
appeal proceedmg !d., June 17, 2003 regular City Counc1l Meetzng
16. On June 13, 2003, the parties to appeal were provided w1th a copy of a June 12, 2003
Memorandum from Kent City Attorney Tom Brubaker to the Kent City Councilmembers,
adviSing them of the closed-record appeal by Kent C A.R.E S., and suggestmg a
framework to conduct the appeal heanng June 12, 2003 letter from Tom Brubaker to
Cily Counctlmembers, June 13, 2003 letter from Tern Hansen to all part1es
17. Due to obJectwns raised by Kent CARES. (June 17, 2003 letter from Don Shaffer to
Michael C Walter), the parties to the appeal were advised that each s1de to the appeal
would have a total of 30 mmutes per s1de to present the1r argument at the closed-record
appeal heanng on July 15, 2003. The parties were advised that Kent C.A.R.E.S would
have a total of 30 mmutes for 1ts argument and that Kent StatiOn, LLC, and the C1ty of
Kent together would share a total of 30 mmutes for the1r argument Kent Station, LLC,
and the C1ty of Kent agreed to share 30 mmutes -desp1te language m §6 of ResolutiOn
No. 896 that authonzes appellants and opponents to an appeal to each have 30 mmutes to
present oral argument -m order to avmd any claim of preJUdice, unfairness, or meqmty
to Kent C ARE S June 16, 2003 letter from Don Shaffer to M1chael C Walter, June
17, 2003 letter from Don Shaffer to Mtchael C Walter, July 14, 2003 letter from Michael
C Walter to all part1es
18. Th1s closed-record, quasi-JUdicial appeal by Kent C A R E.S. came before the C1ty
Council at 1ts regularly scheduled meetmg on July 15, 2003, upon proper and trmely
notice to all parties. The Appellant, Kent C.A.R.E.S., was represented by and through 1ts
representative, Don Shaffer The Respondent (and the Kent StatiOn applicant), Kent
StatiOn, LLC, was represented by and through 1ts attorney, Donald E Marcy of the law
firm of Ca1rncross and Hemplemann, P S. The Respondent (and property owner) City of
Kent, was represented by and through Assistant C1ty Attorney, K1m Adams Pratt All
representatives were g1ven an opport1m1ty to present argument, and all d1d so July 15,
2003 closed-record appeal hearzng
19 The C1ty Council has reviewed or IS fam1har w1th the record before the Hearmg
Exammer as part of the Heanng Exammer's January 30, 2003 decJswn, and finds that the
Heanng Exammer committed no error, either procedural or substantive, and that there IS
no basis for Kent C A R E S 's appeal. The C1ty Council expressly finds that the
Fmdmgs of Fact, Concluswns of Law, and deciSion by the Heanng Exammer are
supported by the record All findmgs of fact set forth m the Heanng Exammer's January
30, 2003 "Fmdmgs, ConclusiOns and DeciSion," and the Heanng Exammer's February
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION . 7
12, 2003 "Demal of Requests for Recons1deratwn" are mcorporated herem by th1s
reference and are made a part of this declSlon as 1f fully set forth herem Hearmg
Exammer record, generally
20. At the July 15, 2003 closed-record appeal heanng, Mr Shaffer presented argument for 30
mmutes on Kent C.A.R E S. 's appeal. Mr Shaffer expressed h1s concerns about the 25
acres of property mcludmg the Kent StatiOn proJect s1te, he complamed that the C1ty
Council would not hear h1s appeal of the PUD deciSIOn by the Hearmg Exammer, he
stated that the appeal had cost h1m $50,000, he expressed h1s dissatisfactiOn with the City
Council excludmg h1s supplemental ev1dence from the record, and he discussed h1s
concerns of poss1ble contammants m the s01l and h1s concerns of arsemc and benzme on
the s1te. He offered slides and other exhibits. Id
21 K1m Adams Pratt, on behalf of the City of Kent, argued that the argument presented by
Don Shaffer on behalf of Kent C.A.R.E S did not pertam to the narrow 1ssue before the
C1ty Council, namely the propnety of the Heanng Exarmner's declSlon regardmg the
prelimmary plat approval for the Kent Statwn proJect She argued that all of the
comments made by Mr Shaffer were directed to e1ther the PUD or SEP A declSlons,
neither of wh1ch are properly before the C1ty Council on th1s closed-record appeal.
Ms Pratt also referenced ev1dence that the soil on the Kent Station s1te IS not
contammated, that no persons would be usmg any of the water from the Kent StatiOn s1te
for dnnkmg water, that the supplemental evidence submitted by the C1ty regardmg
arsemc on the s1te establishes that there IS no public health or safety nsk to e1ther
constructiOn workers or the public generally Ms. Pratt also stated that ne1ther the
prelimmary plat nor the PUD changed the use of the property, and that all of the uses of
the Kent StatiOn s1te were previously authonzed She also argued that Kent C.A R E S
failed to appeal the PUD declSlon and that 1t cannot be challenged at th1s date. Ms. Pratt
also responded to Mr. Shaffer's clauns that the public was not g1ven notice of vanous
decJswns made by the C1ty regardmg the Kent StatiOn proJect, and stated that proper and
timely notice was prov1ded to res1dents north of James Street and m the areas surroundmg
the subject property, that there was an extens1ve public process for public part!C!patwn,
and that the public did m fact fully and properly participate m all aspects of the Kent
StatiOn proJect Id
22 Mr. Marcy, on behalf of Kent Statwn, LLC, JOmed m w1th the arguments and the
supplemental ev1dence presented by the City of Kent. Mr. Marcy also noted that Mr
Shaffer fa1led to address standards (a)-( d) of §7 of ResolutiOn No 896, and that the C1ty
Council should reJect any bas1s for an appeal for any of those standards. Mr. Marcy
acknowledged that Mr Shaffer's argument could be construed as addressmg subsectiOn
(e) of §7 of ResolutiOn No 896, relatmg to msuffic1ent evidence as to the 1mpact on
surroundmg properties, but that Mr. Shaffer did not present any evidence to support that
argument Mr. Marcy also stated that momtonng IS bemg done on the Kent Statwn site,
that the s1te will be capped w1th asphalt and that no contammants m the s01l w1ll be
released or will harm either constructiOn workers or the public He also argued that Mr.
Shaffer had not addressed any plat approval cntena as part of the appeal and that, for that
additional reason, the appeal should be reJected Id
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-8
23. Mr. Shaffer's argument at the July 15, 2003 appeal heanng did not address, discuss or
apply any of the five standards for reversmg, remanding or mod1fymg the Heanng
Exammer's January 30, 2003 deciSion, as reqmred by ResolutiOn No 896, §7 Mr.
Shaffer's argument at the July 15, 2003 appeal heanng did not address, discuss or apply
§7(a) of ResolutiOn No 896. The City Council finds that Kent C.A RES. d1d not
produce any evidence or offer any argument to establish or mfer that the Heanng
Exanuner committed "substantial error" at the June 16, 2003 open-record or as part of the
Hearmg Exammer's decision-makmg process, pursuant to ResolutiOn No. 896, §7(a) Id
24. Mr Shaffer's argument at the July 15, 2003 appeal heanng did not address, discuss or
apply §7(b) of ResolutiOn No. 896 The City Council finds that Kent C.A.R E.S d1d not
produce any evidence nor offer any argument to establish or mfer that the proceedmgs
were matenally affected by IITegulanties m procedure at the June 16, 2003 open-record
heanng before the Heanng Exanuner, pursuant to ResolutiOn No. 896, §7(b) Id
25. Mr Shaffer's argument at the July 15, 2003 appeal heanng did not address, discuss or
apply §7(c) of ResolutiOn No. 896. The C1ty Council finds that Kent CAR E.S. did not
produce any evidence nor offer any argument to establish or mfer that the January 30,
2003 deciSIOn of the Heanng Exammer was unsupported by matenal and substantial
evidence m view of the entire record as submitted, as set forth m ResolutiOn No. 896,
§7(c). Id
26 Mr. Shaffer's argument at the July 15, 2003 appeal heanng did not address, discuss or
apply §7( d) of ResolutiOn No. 896. The City Council finds that Kent C A.R.E.S did not
produce any evidence nor offer any argument to establish or mfer that the Heanng
Exammer's January 30, 2003 decision IS m conflict with the City's comprehensive plan,
as set forth m ResolutiOn No. 896, §7( d). Id
27 Mr. Shaffer's argument at the July 15, 2003 appeal hearmg did not address, discuss or
apply §7( e) of ResolutiOn No 896. The City Council finds that Kent C A.R E S d1d not
produce any evidence nor offer any argument to establish or mfer that there was
msuffic1ent evidence presented to the Heanng Exammer as of January 16, 2003 as to the
Impact or Impacts on the surroundmg area, as set forth m Resolutlon No. 896, §7(e) Id
28 The City Council expressly finds that Kent C A R.E.S., the Appellant, d1d not meet Its
burden of provmg any one of the standards set forth m §7 of ResolutiOn No 896 which
would support a decision to reverse, remand or modify the Heanng Exammer's January
30, 2003 decision !d.
CONCLUSIONS OF LAW
1 The Kent City Council has JUriSdiction to hear and decide this appeal pursuant to
RCW 36.70B, ResolutiOn No. 896, KCC 12 01.190, 12.01 195 and 12 04.695
2 This appeal by Kent C.A R.E.S was timely filed, served and perfected pursuant to
RCW 36.70B, ResolutiOn No. 896, KCC 12 01.190, 12.01.195 and 12 04 695.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -9
3 The Ctty of Kent plannmg staff ts a proper and necessary party to thts appeal, per KCC
2.32.170
4. Thts ts a closed-record, quasi-Judtctal appeal, authonzed by RCW 36.708, ResolutiOn
No 896, KCC 12.01.190, 12 01 195 and 12 04 695.
5 The Mayor has authonty to attend and constder thts appeal and to revtew documents and
hear argument, but cannot vote on the appeal except m case of a lte. RCW 35A 12 100
In thts appeal, however, the Mayor dtd not vote or parttctpate m any dectswn makmg
smce the Ctty Counctl's dectswn was unammous.
6. This appealts hmtted solely to the tssue of whether the Heanng Exammer, m tis January
30, 2003 open record dectswn and m tts February 12, 2003 reconstderatwn dectswn,
commttted error suffictent to meet one of the five cntena m ResolutiOn No. 896, §7
regardmg only the prehmmary plat apphcatwn and condtttons thereto for the Kent StattOn
proJect, as set forth m the Heanng Exammer's January 30, 2003 dectstOn
7. There ts no basts for any appeal of or challenge to any SEP A threshold deterrmnalton or
other SEPA or envtromnental dectston by the Ctty of Kent, and no such appeal ts
properly before the Ctty Counctl.
8. There ts no basts for an appeal of or challenge to the PUD approved by the Heanng
Exarmner on January 30, 2003, and no such appealts before the Ctty Counctl.
9. There ts no basts for an appeal of or challenge to any comprehenstve plan or plan
amendment dectswn by the Ctty of Kent concemmg the Kent StattOn proJect, and no such
appealts before the Ctty Counctl
10 All conclustons of law set forth m the Heanng Examiner's January 30, 2003 "Fmdmgs,
Concluswns and Dectston" and the Heanng Exammer's February 12, 2003 "Demal of
Requests for Reconstderatwn" are mcorporated herem by thts reference and are hereby
made a part of thts dectstOn as tf fully set forth herem.
11 The Appellant, Kent C A R E.S., and all other parttes to thts appeal were gtven timely
and proper notice of the appeal hearmg date, the appeal heanng rules, and all apphcable
closed-record appeal procedures.
12 Only the Ctty Counctlts authonzed to hear thts closed-record appeal. Because the Ctty
of Kent owns the property whtch ts the subJect of the Kent StattOn MPD proJect, and
because the Ctty Counctlts the dectswn makmg body for thts closed record appeal and ts
also the govemmg body for the Ctty whtch owns the property, a potenttal confltct of
mterest extsts. The "rule of necesstty," as set forth m RCW 42 36 090, permtts all Ctty
Counctl members to fully parttctpate and vote m thts quast-Judtctal, closed-record appeal.
There ts no appearance of fairness vwlatwn
13 The supplemental evtdence subnutted by Kent C.A R.E.S. wtth tts May 31, 2003 letter
and dehvered to the Ctty and parttes on June 4, 2003 was ltmely and properly served on
all parttes.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -10
14 The supplemental evidence submitted by Kent C.A.R E.S on or about June 4, 2003,
cons1stmg of Exhibits A-D (and attachments thereto) do not meet the reqUirements for
supplementmg the record pursuant to RCW 36 70B, ResolutiOn No. 896, or
KCC 12.01.195 The supplemental eVIdence submitted by Kent C A.R.E S IS not "new"
mformatwn that could not have been placed on the record previOusly. All of the
mformatwn submitted by Kent C.A.R E.S was available or could have been placed on
the record at the time of the January 16, 2003 Heanng Exammer heanng or pnor to the
January 30, 2003 Heanng Exammer decisiOn.
15 The supplemental evidence submitted by Kent C.A.R.E.S. on or about June 4, 2003 is
also not relevant to any of the prehmmary plat appeal Issues which are the only Issues
which are the subject of this appeal. The proffered supplemental evidence addresses
general pohcy Issues, SEPA Issues, PUD Issues, and comprehensive plan Issues which
are not the subject of this appeal. Accordmgly, the wntten objectiOns by the City of Kent
dated June 13, 2003 and Kent Station, LLC, dated June 13, 2003 are well-taken Those
parties' requests to stnke Kent C A R.E S. 's supplemental evidence from the record IS
granted
16. The MotiOn to Supplement the Record and the supplemental evidence submitted by the
City of Kent or about June 13, 2003 was timely and properly served on all parties.
17. The supplemental evidence subrrutted by the City of Kent or about June 13, 2003,
consistmg of two letters and attachments thereto, meet the reqUirements for
supplementmg the record pursuant to RCW 36.70B, Resolution No. 896, and
KCC 12.01 195. The supplemental evidence submitted by the City of Kent IS clearly
"new" mformatwn that could not have been placed on the record previOusly. All of this
supplemental evidence was not available and could not have been placed on the record at
the time of the January 16, 2003 hearmg or pnor to the Heanng Exammer's January 30,
2003 decision All of this evidence also was not available at or pnor to the Heanng
Exammer's February 12,2003 DecisiOn on ReconsideratiOn.
18. The Appellant, Kent C A.R E.S., has the burden of proof on this appeal.
19 ResolutiOn No 896, §7 sets forth five alternative cntena to overturn or reverse a deciSIOn
by the Hearmg Exammer on a closed-record appeal. The City Council can grant the
appeal and overturn or reject the Heanng Exammer's decisiOn only If the Appellant Kent
CAR E.S meets Its burden ofprovmg one or more ofthe followmg cntena
a) There has been substantial error; or
b) the proceedmgs were matenally affected by megulan!Ies m procedure, or
c) the decisiOn of the Heanng Exammer was unsupported by matenal and
substantial evidence m view of the entire record as submitted, or
d) the dectston of the Heanng Exammer ts m confhct wtth the City's
Comprehensive Plan; or
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -11
e) there was msuffic1ent evidence presented as to the Impact on the
surroundmg area
ResolutiOn No. 896, §7.
20 Based on the record as a whole, the admitted supplemental evidence by the City of Kent
and argument by the parties to this appeal, the City Council concludes that there was no
substantial error by the Heanng Exammer m approvmg the prehmmary plat or m the
Hearmg Exammer's January 30, 2003 or February 12, 2003 deciSIOns. Therefore, the
Appellant Kent C.A R.E.S. has not satisfied Its burden of proof to reverse or reject the
Heanng Exammer's January 30, 2003 or February 12, 2003 deciSions pursuant to §7(a)
of ResolutiOn No 896.
21 Based on the record as a whole, the admitted supplemental evidence by the City of Kent
and argument by the parties to this appeal, the City Council concludes that there IS no
evidence or mference from the evidence that the proceedmgs before the Heanng
Exammer were matenally affected by megulanties m procedure. Therefore, Appellant
Kent C A R.E.S. has not satisfied Its burden of proof to reverse the Heanng Exammer's
January 30, 2003 or February 12, 2003 dectswns pursuant to §7(b) of Resolutton No.
896.
22. Based on the record as a whole, the admitted supplemental evtdence by the City of Kent
and argument by the parties to this appeal, the City Council concludes that the decisiOn
by the Hearmg Exammer on the Kent StatiOn preliminary plat was clearly supported by
matenal and substantial evidence m view of the entire record as submttted Therefore,
Appellant Kent C.A.R.E S has not satisfied its burden of proof m reversmg or reJecting
the Heanng Exammer's January 30, 2003 or February 12, 2003 dectstons pursuant to
§7(c) of ResolutiOn No. 896
23 Based on the record as a whole, the admitted supplemental evtdence by the City of Kent
and argument by the parties to this appeal, the C1ty Council concludes that the Heanng
Exammer's January 30, 2003 and February 12, 2003 dectswns are fully consistent with
the City's comprehensiVe plan and current Plan amendments, and these decisiOns do not
conflict with the Plan or any Plan amendments. Therefore, Appellant Kent C.A R E.S.
has not satisfied Its burden of proof m reversmg or reJectmg the Heanng Exammer's
January 30, 2003 or February 12, 2003 deciSions pursuant to §7(d) of Resolution No
896.
24. Based on the record as a whole, the admitted supplemental evidence by the City of Kent
and argument by the parties to this appeal, the City Council concludes that there was
sufficient evidence presented to the Heanng Exammer regardmg the Impact of the
prehmmary plat deciSion on surroundmg areas, and that such evidence was duly
considered by the Heanng Exammer and was taken mto account m Its January 30, 2003
and February 12, 2003 deciSions. Therefore, Appellant Kent C A.R E.S has not satisfied
Its burden ofproofm reversmg or reJectmg the Hearmg Exammer's January 30, 2003 or
February 12,2003 deciSions pursuant to §7(e) of ResolutiOn No. 896.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-12
25. Based on the record as a whole, the admitted supplemental evidence by the City of Kent
and argument by the parties to this appeal, the City Council concludes that Appellant
Kent C A.R.E S has not satisfied Its burden of proof under ResolutiOn No. 896 and
KCC 12.01.195 on this appeal, and that the appeal must be demed.
26. The City Council concludes that the Heanng Exammer did not err m either his January
30, 2003 or his February 12, 2003 decisions, and that the proposal for the Kent StatiOn
project as submitted and approved by the Heanng Exammer should be affirmed.
BASED UPON THE FOREGOING Fmdmgs of Fact and ConclusiOns of Law, the Kent
C1ty Council makes the followmg·
DECISION
I. The June 13, 2003 requests of the City of Kent (Kim Adams Pratt) and Kent StatiOn, LLC
(Donald E Marcy) to stnke the supplemental evidence submitted by Kent C A R.E.S ,
are hereby GRANTED. The City Council did not consider Kent C A.R.E.S.'s
supplemental evidence as part of this appeal.
2 Respondent City of Kent's supplemental evidence IS hereby ADMITTED. The City
Council considered the City of Kent's supplemental evidence as part ofth1s appeal.
3. That portion of Kent C.A.R.E S 's appeal relatmg to the Heanng Exammer's January 30,
2003 decisiOn on the PUD portiOn of the Kent StatiOn project IS hereby DENIED.
4. Appellant Kent C A.R.E.S. 's closed-record appeal Is hereby DENIED.
5 The Heanng Exammer's January 30, 2003 "Fmdmgs, ConclusiOns and Decision" and the
Heanng Exammer's February 12, 2003 "Demal of Requests for ReconsideratiOn" are
hereby AFFIRMED.
6. The proposal by Kent Station, LLC, as submitted to and decided by the Heanng
Exammer on January 30, 2003 IS hereby APPROVED
DECIDED this _f_J_ day of August, 2003
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-13
JUDY WOODS, PRESIDENT
CIL
Attest
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-14