HomeMy WebLinkAbout1655RESOLUTION NO. I to$
A RESOLUTION of the city counctl of the city of
Kent, Washington, adoptmg findmgs of fact, conclusions of
law, and a decision regarding the quasi-judicial, closed record
appeal of the Qwest ConditiOnal Use Permit, File No. CE-
2001-3.
WHEREAS, on September 2, 2003, the Kent City Counctl sitting as a quasi-
judicial body heard a closed record appeal brought by Paul Morford m his individual
capacity; and
WHEREAS, the Council voted 5-1 to deny the closed record appeal and
instructed that written finding of facts, conclusions of law, and a decision be drafted for
adoption by Counctl; and
WHEREAS, findings of facts, conclusions oflaw, and a dectsion have been
drafted in accord with the Counctl's dectsion and are attached as Exhtbtt A to thts
Resolution; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. -Adoption. The Kent Ctty Council hereby adopts the attached
Exhibit A as its findings of fact, conclusions oflaw and decision in the closed record appeal
of the Qwest Conditional Use Permit, Ftle No. CE-2001-3.
Qwest Conditional Use Permit Appeal
Findings, Conclusions, and Decision
SECTION 2. -Effective Date. This resolution shall take effect and be m
force immedmtely upon 1ts passage.
PAS SED at a regular meeting of the city counctl of the City ofKent, Washington this
____2._ day of October, 2003.
CONCURRED in by the mayor of the City ofKent, this _1_ day of October, 2003.
ATTEST:
z:1_._.. ,1. / ~L~
BRENDA JACOBER, ITY CLERK
APPROVED AS TO FORM:
~fM!.~ T M BRUBAKER, CITY ATTORNEY
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I hereby certify that this is a true and correct copy of Resolution No./655, passed
by the city council of the City of Kent, Washington, the _2_ day of October, 2003.
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2 Qwest Conditional Use Permit Appeal
Findings, Conclusions, and Decision
BEFORE THE CITY COUNCIL
OF THE CITY OF KENT
INRE:
The appeal ofQwest's application for a C.U.P.
for the second floor expansion of a
telecommunications building located at 206 S.
State Street, Kent, W A.
PAUL MORFORD,
Appellant,
v.
K.D.W. ARCHITECTS, P.S., U.S. WEST/
QWEST (APPLICANT); AND CITY OF
KENT,
Respondents.
No. CE-2001-3
KIV No. 2011743
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND DECISION
INTRODUCTION
THIS MATTER carne before the Kent City Council on September 2, 2003, on a quasi-
judicial, closed-record appeal brought by Paul Morford, an individual, challenging the Hearing
Examiner's May 10, 2002 ("Decision after Remand") approval of a Conditional Use Permit
("CUP") to Qwest to allow the construction of a second-floor addition to an existing
telecommunication facility in the City's DCE zone. The following is a summary of the subject
property, the land use applications and the appeal filed by Paul Morford.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -1
(Morford v. Quest-CUP, 206 S State Street)
' .
l File Nos.: Qwest-Kent Ulrich, file Nos. CE-2001-3, and KIVA No.
2011743.
Al!l!licant: KDW Architects, P.S., U.S. West Communications, Qwest
(hereinafter collectively "Qwest").
Prooertv Owner: Qwest
Location: The subject property is located at the southeast corner of
South State Street and East Gowe Street. Located in the
northeast corner of Section 24, Township 22 North, Range
4 East, Willamette Meridian, in King County, W A. King
County tax parcel No.: 917960-0451. Street address: 206
South State Street.
Project ProJ:!osal: Request for a conditional use permit (CUP) to allow the
construction of a second floor on an existing
telecommunication facility in the DCE (Downtown
Commercial Enterprise) zone. The application requests a
17,000 square-foot second floor addition to the existing
17,000 square-foot single story structure.
Application Filed: May 24, 2001.
SEP A Determination/Date: DNS. Issued August 9, 2001.
Staff Reoort: September 19, 2001.
1. Hearing Examiner [first] September 19, 2001.
Open Record Hearin2:
2. Hearing Examiner [first] October 3, 2001.
Decision:
3. AJ:!J:!eal of Hearing October 12, 2001.
Examiner's [first]
Decision:
4. Citt Counsel [first] Closed November 20, 2001.
Record Al!J:!eal
Hearini!!Decision:
5. AJ:!J:!eal of Hearing May 24, 2002.
Examiner [second]
Decision:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -2
(Morford v Quest-CUP, 206 S. State Street)
' .
6. Hearing Examiner May I, 2002.
[second] O~en Record
Hearin2::
7. Hearing Examiner May I 0, 2002.
rsecondl Decision:
8. Hearing Examiner May 31,2002 and June 13,2002.
Decision re: 5/24/02
Aooeal:
Citt Counsel [Second] Closed September 2, 2003.
Record Hearing/Decision:
1) Closed-record appealed by Paul Morford-denied;
2) Hearing Examiner's May lOth, 2002 decision on
9/02/03 C.C. Hearing remand-affirmed.
Anrument Presented by: 1) For Appellant, Paul Morford-Paul Morford and
Michael M. Hanis, Esq.
(ofHanis, Greaney, Zoro, PLLC);
2) For Applicant and Respondent, Qwest-Michael P.
Witek, Esq. (ofHelsell Fetterman, LLP);
3) For Respondent City of Kent--Kim Adams Pratt, Esq.
(Kent Assistant City Attorney)
A~~eal Exhibits: 1) May 24, 2001 conditional use permit application
(and submittals A-G, and site plans) (AR-00073-
00083);
2) August 31,2001 Kent Planning Services
"application deadline dates" (AR-00072);
3) May 25, 2001 routing slip and attached comments
(AR-00085-00089);
4) 2-page letter from Paul Morford (July 12, 2001) to
Kent Planning Department (AR-00088-00089);
5) Notices of Application (July 2, 2001) and attached
comments (AR-00091-00096);
6) June 19,2001 Notice of Completeness (AR-00098);
7) Public Notices and evidence of mailing (generally
dated August 31, 200l)(AR-00100-00105);
8) Notice of Public Hearing and evidence regarding
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -3
(Morford v Quest-CUP, 206 S. State Street)
..
posting of site (August 31, 2001) (AR-00107-
00108);
9) Notice of Public Hearing (August 31, 2001) (AR-
00110-00112);
10) August 9, 2001 SEPA determination ofnon-
significance (DNS), and environmental check list
application form (AR-00114-00126);
II) Vicinity Site Plans and landscape maps (AR-00128-
00139);
12) September 19, 200lletter from Paul Morford/CAP
Properties to Theodore P. Hunter (including
attachments) (AR-00140-00146);
13) November 20,2001 Kent City Council Meeting
"summary agenda" (AR-00148-00149);
14) November 20, 2001 Kent City Council Minutes
(AR-00151-00154);
15) December 12, 2001letter from attorney Michael P.
Witek to Theodore P. Hunter (AR-00156-00158);
16.) December 18, 2001 "Hearing Date and Procedures"
from Hearing Examiner (AR-00160-00161);
17) January 9, 2002 letter from Paul Morford to
Theodore P. Hunter (AR-00163);
18) January 10, 2002 letter from Damian Hooper to Paul
Morford and Michael Witek (AR-00165-00174);
19) January 11, 2002 letter from Michael Witek to
Theodore P. Hunter (AR-00176-00178);
20) January 17, 2002 "continuation of hearing date"
notice from Hearing Examiner (AR-00180-00181);
21) January 15, 2002letter from Dan Smith to Paul
Morford (AR-00183);
22) February 22, 2002 letter from Michael Witek to
Theodore P. Hunter (AR-00185-00186);
23) February 27, 2002letter from Kim Adams-Pratt to
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-4
(Morford v. Quest-CUP, 206 S. State Street)
Ted Hunter(AR-00188);
24) February 28, 2002 "continuance" notice from
Hearing Examiner (AR-00190-00191);
25) April10, 2002letter from Michael Witek to Ted
Hunter (AR-00193-00195);
26) May 1, 2002 memorandum on remand from Qwest
(including attachments A-D) (AR-00197-00256);
27) May 15, 2002 "Findings, Conclusions and Decision
on Remand" by Hearing Examiner (AR-00258-
00270);
28) Series of 10 large maps and site plans (AR-00273-
00282);
29) Building addition log (map) dated 11/20/01 (AR-
00284);
30) Two-color photographs of Titus Mansion
Apartments (AR-00286-00288);
31) Series of 6 color photographs and partial site plan
(AR-00290);
32) Series of 5 color photographs and partial landscape
plans (AR-00292);
33) Photograph from Qwest property (AR-00294);
34) Photograph of Qwest property with graphic
projection (AR-00296);
35) Color photo/dimensional model of site (AR-00298);
36) Color dimensional model with existing trees (AR-
00300);
37) Color photograph oflift at apartments (AR-00302);
38) Vantage point of photographs from lift (AR-00304);
39) Vantage points of3-D model (AR-00306);
40) Series of 9 color photographs with site plan (AR-
00308);
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-5
(Morford v. Quest-CUP, 206 S. State Street)
41) Color rendition, deck A (AR-00310);
42) Deck B, third floor (AR-00312);
43) Deck C, third floor (AR-00314);
44) Deck A, second floor (AR-00316);
45) Deck B, second floor (AR-00318);
46) Deck C, second floor (AR-00320);
47) Deck A, first floor (AR-00322);
48) Deck B, first floor (AR-00324);
49) Deck C, first floor (AR-00326);
50) Site section of proposed retaining wall (AR-00328);
51) Building additions log (AR-00330);
52) Declaration of Brenda M. Ross (AR-00332-00342);
53) Metro scan property profile (AR-00344-00345);
54) Landscape plan (AR-00347);
55) April 29, 2002 economic impact of Qwest second
floor addition by Allen M. Safer, MAl (AR-00349-
00360);
56) Ordinance No. 3050 (AR-00362-00382);
57) Ordinance No. 3051 (AR-00384-00387);
58) May 24, 2002 letter from Paul Morford to City of
Kent (AR-00389-00390);
59) May 31,2002 "denial ofRequest for
Reconsideration" by Hearing Examiner (AR-00392-
00393);
60) June 13, 2002 "explanation of denial of Request for
Reconsideration" by Hearing Examiner (AR-00395-
00397);
61) September 11, 200 I "staff report" for Hearing
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -6
(Morford v Quest-CUP, 206 S State Street)
Examiner (AR-00056-00070);
62) October 3, 2001 "Findings, Conclusions and
Decision" of the Hearing Examiner (AR-00043-
00053);
63) October 12, 2001 letter from Paul Morford to City of
Kent, including appeal notice and receipt (AR-
00040-00042);
64) September 19, 2001 "verbatim minutes" of Hearing
Examiner hearing (AR-00011-00038);
65) Resolution No. 896 (AR-00006-00009);
66) November 8, 2001 "statement of hearing officer"
(AR-00004);
67) Index to Hearing Examiner's record (AR-00002);
68) Memorandum from Roger A. Lubovich re:
procedure on closed record Appeal Hearing (AR-
00001);
69) August 18, 2003 "brief of Paul Morford on appeal of
conditional use permit to U.S. West/Qwest" (8
pages);
70) August 18, 2003 "Qwest's memorandum in
opposition to appeal of Paul Morford" (and
attachments)(15 pages, and exhibits A-B);
71) August 7, 2003 letter from Michael Walter to
attorneys Hanis, Witek and Adams Pratt (3 pages);
72) Kent City Council meeting, September 2, 2003
minutes (4 pages).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -7
(Morford v. Quest-CUP, 206 S. State Street)
FINDINGS OF FACT
1. On May 24, 200I, KDW Architects, P.S., submitted an application for a conditional use
permit for a second floor addition to the existing Qwest telecommunications equipment
building, known as Qwest's Kent Ulrich Station, located at 206 South State Avenue,
Kent, Washington. The application was assigned No. CE-200I-3 and No. KIVA No.
20II743. The property owner was identified as Qwest, which has owned the existmg
I7,000 square foot structure since approximately I955. CUP Application (AR-00072-
00083)
2. Qwest's application sought to construct a full second story, I7,000 square-foot addition
to its existing building located on the comer of State Street and Gowe in Kent. The
addition was designed solely for telecommunications switch equipment, and all the
necessary support equipment to provide uninterrupted telephone service to the
community in the event of power outages. The existing I7,000 square foot structure
owned and operated by Qwest and its predecessors (U.S. West and Pacific Northwest
Bell) since I955 has always functioned solely as a telecommunications facility. It has
significant underground cable infrastructure which provides telephone service throughout
the City of Kent. The building enables telephone services throughout the entire City,
including local, state and long distance calls, 9II emergency calls, wireless and all
internet services that operate through a modem. Without this building, these critical
services would not be available. The existing building and existing equipment require
expansion. The need for expanded capacity has quadrupled in the last five years. Id
(AR-00074-00081), Hearing Examiner October 3, 200I decision, findings I, 4-6 (AR-
00044-00045); Hearing Examiner May IO, 2002 decision, findings I, 4, 6-8 (AR-0026I-
00263).
3. On August 9, 200I, the City issued a SEPA determination of non-significance (DNS)
(No. ENV-200I-24), which found that there were no significant adverse environmental
impacts associated with the Qwest CUP application. The DNS was not appealed. The
City of Kent is designated as lead agency for review of environmental impacts under the
State Environmental Policy Act (SEPA). SEPA DNS (AR-00114-00126), October 3,
2001 Hearing Examiner Decision, Finding No. 9 (AR-00046), May 10, 2002 Hearing
Examiner Decision on Remand Finding No 10 (AR-00263)
4. On September I8, 200I, the Kent City Council passed Ordinance No. 3574. This
Ordinance changed the Kent City Code regarding closed-record appeals of certain quasi-
judicial decisions of the Hearing Examiner. Ordinance No. 3574 eliminated a prior
provision of the Kent City Code that directed appeals of hearing examiner decisions to
the City Council, replacing it with a new provision directing that appeals of the Hearing
Examiner's Decision go to Superior Court through a Land Use Petition Act petition
pursuant to Chapter 36.70C RCW. Ordinance No. 3574.
5. On September I9, 200I, the Hearing Examiner conducted an open-record hearing on
Qwest's application for a CUP for its Kent Ulrich Station. At that open-record hearing,
the public, including Appellant Paul Morford, provided testimony and comment on
Qwest's CUP application. All parties received timely, full and fair notice of this May I,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-8
(Morford v. Quest-CUP, 206 S. State Street)
2002 open-record hearing. No party challenged the timeliness or notice for this hearing.
Verbatim Minutes of Open-Record Hearmg (AR-00011-00038).
6. On October 3, 2001, the Hearing Examiner issued "Findings, Conclusions and Decision"
on Qwest's CUP application for the Qwest-Kent Ulrich Station. The Decision was to
approve the CUP with conditions. October 3, 2001 Hearing Examiner Decision (AR-
00043-00053).
7. On October 12, 2001, Paul Morford filed an administrative appeal of the Hearing
Examiner's October 3, 2001 decision ("first appeal"). Mr. Morford's appeal challenged
the Hearing Examiner's approval of the Qwest CUP on the basis that the proposed
building expansion would block views and result in devaluation of the Titus Mansion
Apartments, which Mr. Morford owns, located on property adjacent to and to the south of
the proposed Qwest building expansion. Specifically, the appeal challenged the Hearing
Examiner's approval ofthe CUP predicated on the first criteria of Kent City Code (KCC)
15.09.030(D), which provides that "the proposed use and the proposed location will not
be detrimental to other uses legally existing or permitted outright in the zoning district."
October 12, 2001, letter from Paul Morford to City of Kent (AR-00040-00042)
8. On October 18, 2001, Ordinance No. 3574 (which changed the appeal procedures from a
Hearing Examiner decision on certain quasi-judicial permits) became effective.
Ordmance No. 3574.
9. On November 20, 2001, the Kent City Council held a closed-record appeal of the Hearing
Examiner's October 3, 2001, decision, pursuant to the October 12, 2001, administrative
appeal filed by Paul Morford ("City Council first hearing"). This closed-record, quasi-
judicial appeal carne before the City Council at its regularly scheduled meeting and upon
proper and timely notice to all parties. The Appellant Paul Morford, was present and
provided argument at the closed-record appeal. The City Attorney explained the appeal
process and the options available to the Council, as well as the issue on the appeal. After
reviewing the record and hearing argument by the parties, the City Council approved a
motion to remand to case to the Hearing Examiner to obtain "additional evidence, facts,
or information for its reconsideration." The City Council identified four questions of
issues for consideration by the Hearing Examiner on remand:
A. When were the Titus Apartments built?
B. What is the actual view blockage?
C. Does the Qwest building being there first matter?
D. Is the proposed building detrimental to the Titus
Apartments if views are not protected?
11-20-01 City Council agenda (AR-00148-00149); 11-20-01 Czty Council minutes (AR-
00151-00154).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-9
(Morford v Quest-CUP, 206 S. State Street)
10. On May 1, 2002, the Hearing Examiner held a second open-record hearing on Qwest's
CUP application. This was the hearing "on remand" from the Kent City Council. At this
hearing, the parties provided argument, witnesses testified, and additional documents
were received as evidence. All parties received timely, full and fair notice of this May 1,
2002 open-record hearing. No party challenged the timeliness or notice for this hearing.
Order Re: Continuance (AR-00190-00191), May 1, 2002, Memorandum on Remand from
Qwest (AR-00197-00256).
11. On May 10, 2002, the Hearing Examiner issued "Findings, Conclusions and Decision on
Remand" pursuant to the City Council's November 20, 2001, request to remand to the
Hearing Examiner to consider the above referenced four items. The Hearing Examiner
approved Qwest's CUP application, with conditions, and addressed and resolved the four
issues presented by the City Council in its November 20, 2001, remand directive. May
10, 2002 Hearing Examiner Decision on Remand (AR-00258-00270).
12. On May 24, 2002, Paul Morford filed a second administrative appeal to the City Council.
This appeal appealed the Hearing Examiner's May 10, 2002, decision on remand. In
this second appeal, Mr. Morford contended that the second story construction of the
Qwest building adjacent to the Titus Mansion Apartments "will greatly restrict light and
provide a claustrophobic feel to the residents that they do not have at this time" and, he
contended that this would be a detriment to residents, and that this detriment "clearly
violates the first criteria" of the City's CUP criteria. His appeal also challenged the
Hearing Examiner's "narrow definition of 'detriment'." Finally, the appeal challenged
the sufficiency of parking for the Qwest CUP proposal, claiming that it did not meet City
code requirements for a sufficient number of parking stalls. May 24, 2002, letter from
Paul Morford to City of Kent (AR-00389-00390)
13. On May 31, 2002, the Hearing Examiner issued a decision entitled "denial of request for
reconsideration." The Hearing Examiner concluded that Mr. Morford's May 24, 2002,
letter, denominated an "appeal," was in fact a request for reconsideration. The Hearing
Examiner further denied the request for appeal/reconsideration, without prejudice, and
stated that Mr. Morford could appeal the final decision to Superior Court within 21 days
of the date of the Hearing Examiner's Order, as provided in KCC 12.01.200. Hearing
Examiner Denial of Request for Reconsideration, May 31, 2002 (AR-00392-00393)
14. On June 13, 2002, the Hearing Examiner issued a decision entitled "explanation of denial
of request for reconsideration." In this explanation, the Hearing Examiner found that the
vested rights doctrine did not apply to protect an appellant from changes in procedures,
and further explained why the Hearing Examiner interpreted Mr. Morford's May 24,
2002, "appeal" as a request for reconsideration. Hearing Examiner Explanation, June 13,
2002 (AR-00395-00397).
15. On June 21, 2002, Paul Morford filed in King County Superior Court a "Petition for
Issuance of Writ of Mandamus, or Alternatively, Appeal of Land Use Decision," under
King County Cause No. 02-2-13454-3 KNT. On March 31, 2003, the Honorable Dean
Lum of the King County Superior Court issued a "Final Order Granting Writ of
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -10
(Morford v. Quest-CUP, 206 S. State Street)
Mandamus and Dismissing Land Use Petition" which found, in part, that Mr. Morford
should be permitted to exhaust the appeal process he began with his closed-record appeal
to the City Council of the Hearing Examiner's Decision on Remand. Judge Lum's final
order dismissed Mr. Morford's Land Use Petition, and ordered:
The City of Kent City Council shall, within 30 (60) [sic] days from
receiving this Writ, conduct a hearing of the appeal of the Hearing
Examiner's decision after remand dated May 10, 2002 as required
by former Kent City Code 12.01.040 and pursuant to City
Resolution No. 896, at a regularly scheduled City Council meeting.
The City Council has taken judicial notice of the pleadings and other documents on file
with the Court in this Writ and LUP A action, and has been advised of and is generally
familiar with the issues, arguments and decisions in this court action. Pleadings under
King County Cause No. 02-2-13465-3 KNT, generally.
16. In August 2003, the City scheduled a closed-record appeal hearing before the Kent City
Council on Mr. Morford's administrative appeal of the Hearing Examiner's May 10,
2002, decision on remand. The parties were given timely and proper notice of this
closed-record appeal hearing.
17. On August 7, 2003, Michael C. Walter, a legal advisor to the City Council, advised all
parties to the appeal (Paul Morford, Qwest and the City of Kent) of the September 2,
2003 closed-record appeal hearing and the procedures and time limits applicable to the
appeal hearing. August 7, 2003, letter from Michael C Walter to parties of record
(through attorneys).
18. No party submitted or asked to submit any supplemental or new evidence for the City
Council's review. Therefore, the record before the Kent City Council on the September
2, 2003, closed-record appeal hearing was limited strictly to the briefs by the parties and
the record before the Hearing Examiner at the prior Hearing Examiner hearings. Record,
generally.
19. This closed-record, quasi-judicial appeal by Paul Morford [the second closed-record
appeal] came before the Kent City Council at its regularly scheduled meeting on
September 2, 2003, upon proper and timely notice of all parties. Appellant Paul Morford
was represented by and through his attorney, Michael M. Hanis of the law firm of Hanis,
Greaney, Zarro, PLLC (Kent). The respondent (and the Kent-Ulrich applicant), Qwest,
was represented by and through its attorney of record, Michael P. Witek, of the Helsell,
Fetterman law firm (Seattle). The respondent, City of Kent, was represented by and
through attorney Kim Adams Pratt, Kent Assistant City Attorney. All representatives
were given an opportunity to present argument, and all did so. September 2, 2003, City
Council Closed-Record Appeal Hearing.
20. At the September 2, 2003, closed-record appeal hearing, Mayor White noted that the
Hearing Examiner's decision on remand was issued on May 10, 2002, and described the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-11
(Morford v Quest-CUP, 206 S. State Street)
nature of the closed-record appeal of that decision. City Attorney Tom Brubaker
explained that this was a quasi-judicial hearing and that there was a potential conflict of
interest for the City of Kent and the City Attorney's office, and that Michael C. Walter of
Keating, Bucklin & McCormack, Inc., P.S., would represent and advise the City Council.
The City Council then adjourned to an executive session of approximately 15 minutes to
discuss legal matters, and the closed-record appeal hearing reconvened at 8:14 p.m.
Mayor White turned chairmanship of the hearing over to Council President Woods. Mr.
Walter then read into the record an appearance of fairness disclosure statement advising
the public and the parties of the quasi-judicial nature of the closed-record appeal hearing,
the state of Washington appearance of fairness doctrine and the process of making
objection to City Council decision-makers based on the appearance of fairness doctrine.
All City Council members were questioned on appearance of fairness issues. Several
members made disclosures indicating that they had driven by the subject property site or
that they had had phone service provided by the applicant, Qwest. Council member
Epperly indicated that she was a friend of Paul Morford and that on a prior occasion she
had been in one of the Titus Mansion Apartment units owned by Mr. Morford. There
were no objections to any of the City Council members. No person requested that any of
the Council members recuse themselves or alleged that any of the Council member had
an appearance of fairness violation. September 2, 2003, Kent City Council Minutes and
hearing
21. At the September 2, 2003, closed-record appeal hearing, Mr. Morford described and
discussed the two issues he was bringing before the Council on his appeal of the May I 0,
2002 Hearing Examiner decision. Those two issues were parking and view impairment.
Mr. Morford stated that the Hearing Examiner had ruled on parking issues and had
determined the Qwest facility to be a "warehouse"; however, Mr. Morford noted that a
warehouse would not be permitted as a conditionally permitted use in the DCE zone. Mr.
Morford also addressed view issues, and identified documents in the record that two real
estate brokers had noted very serious detriment to the property (his Titus Mansion
Apartment property) resulting from the proposed expansion of the Qwest facility. Mr.
Morford stated that he did not question Qwest's need for the expansion, he admitted it
was necessary. He stated the tenants of his Titus Mansion Apartments were "very upset"
about this, and that there would be detriment to his property. He provided copies of
pictures of the site, which were already in the record. September 2, 2003, City Counczl
hearing
22. At the September 2, 2003, closed-hearing appeal hearing, Mr. Morford's attorney,
Michael Ranis, explained in more detail Mr. Morford's position regarding the parking
and view impairment, and stated that the Hearing Examiner made an error of law. He
stated that construction of a brick wall (the second floor expansion of the Qwest facility)
clearly is a detriment to Mr. Morford's property and his tenants. He described his
interpretation of the City's policy for the area, which he described as a "gem," pedestrian
friendly and unique. He discussed the case of Hansen v. Chelan County, 81 Wn. App
1233, 913 P.2d 409 (1996), and offered his interpretation of how it was distinguishable
from the facts before the City Council. September 2, 2003 City Council hearing
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-12
(Morford v. Quest-CUP, 206 S. State Street)
23. At the September 2, 2003, closed-record appeal hearing, Michael Witek, attorney for
Qwest, explained Qwest's position and said that Mr. Morford could not show that the
Qwest second floor addition would damage or injure Mr. Morford's property in any way
that a permitted use would not. He relied upon the case of Hansen v. Chelan County and
argued that the case and its holding is directly applicable to the facts of this case. He
discussed the history ofthe Qwest facility, which was built in 1955 and was upgraded in
1984 and which now needs to be upgraded again. He indicated that Qwest could build
many other types of structures in the DCE zone that would have far more view blockage
than the Qwest second floor expansion proposed in the CUP application. He noted that
this is the fifth hearing on this matter and that the City Council should focus on the
standards for appeal of the Hearing Examiner's decision as set forth in Resolution No.
896. He also noted that while the City does have a view protection ordinance applicable
to other zones, that ordinance is not applicable to either the Qwest or the Morford's
properties or to any property within the DCE zone, including the Qwest and Morford
properties. He also referenced appraisal reports indicating no loss in value due to the
increase in height of the Qwest facility. He addressed the parking issues raised by Mr.
Morford and argued that the closest type of facility to the Qwest building was a
"warehouse" or a "storage" facility, and that the Hearing Examiner properly found that
parking should be predicated on warehouse and storage parking standards. September 2,
2003, City Council hearing
24. At the September 2, 2003, closed-record appeal hearing, Kim Adams Pratt, Assistant City
Attorney, explained the City's position, noting that staff still supports the
recommendation made to the Hearing Examiner in 2001. Staff still believes that the
Qwest CUP application is in compliance with the comprehensive plan, City zoning and
the CUP standards. She noted that the City's comprehensive plan promotes expansion of
telecommunications facilities and encourages co-location of such facilities. She
addressed the standards for granting a CUP as set forth in KCC 15-09-030(0) and noted
that Mr. Morford wants the City Council to treat two identical three-story walls -one
permitted as an allowed use and the other permitted as a conditional use -differently.
She also cited to and relied upon the case of Hansen v Chelan County. September 2,
2003, City Counczl hearing.
25. In rebuttal, attorney Hanis (on behalf of Mr. Morford) disagreed with some of Ms. Pratt's
comments, and said that the City Council does not have enough information to make a
reasoned decision. He argued that the Hansen case was distinguishable, that Mr. Morford
was not basing any of his arguments on the City's comprehensive plan, and that this was
a "pure zoning" issue. He stated, again, that common sense says that the expansion of the
Qwest facility was a "detriment" to surrounding properties, especially Mr. Morford's
apartment building. September 2, 2003, City Council hearmg.
26. After a 30-minute executive session, the City Council decided Mr. Morford's closed-
record appeal. Council member Orr moved to affirm the Hearing Examiner's decision to
deny the appeal of the Hearing Examiner's May 10, 2002, decision and to affirm that
decision. The Council voted 5-1 to deny the appeal and to affirm the Hearing Examiner's
decision. September 2, 2003, City Council hearing.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-13
(Morford v. Quest-CUP, 206 S. State Street)
27. Paul Morford's October 12,2001, and May 24,2002, notices of appeal were timely filed
and perfected, pursuant to Resolution No., 896 (June 16, 1980), Kent City Code
12.01.040 and 12.01.095.
28. Paul Morford has standing to pursue both the October 12, 2001 and May 24, 2002,
appeals.
29. The subject property is zoned DCE, "Downtown Commercial Enterprise", as are all
surrounding properties to the north, south, east and west. This zoning was adopted in
1992 pursuant to Ordinance No. 3051. Testimony of Damien Hooper (Verbatim Mmutes
AR-00011-00038); Staff Report, pp 1-7 (AR-00056-00062).
30. The proposed use is a telecommunication facility and is permitted as general conditional
use in the DCE zone under KCC 15.08.030(B)(l). There are no setback requirements in
the DCE zone or otherwise applicable to the Qwest CUP application. Id
31. The maximum allowable site coverage for this property is 100% in the DCE zone. !d.
32. There are no height limitations on buildings in the DCE zone, or otherwise imposed
through City Code. Testimony of Damien Hooper; Staff Report, p. 8 (AR-00063);
Hearing Examiner remand decision, at finding 4 (AR-000261)
33. The existing Qwest building is one story and approximately 17,000 square feet, and it sits
upon a lot slightly larger than% of an acre. The existing building is 16 feet in height, and
the proposed addition would add approximately 18 feet, 5 ~ inches, for a total height
after construction of 34 feet, 5 ~ inches. Staff Report, p 3 (AR-00058); Drawing, CUP-
9, Site Section B (AR-00281)
34. The proposed expansion of the Qwest facility will not have any adverse impacts on any
of the surrounding properties. The expanded facility will "quietly" perform its function
with little impact on surrounding properties. Staff Report, p. 7 (AR-00062)
35. The use of the Qwest property as a telecommunications facility is not a change from the
use as it presently exists. The only exception will be the addition of the second floor
addition, raising the height of the building. No new, expanded or different uses will
occur as a result of the expansion. Staff Report, p. 8 (AR-00063)
36. The size of the site is more than adequate for the proposed expansion of the Qwest
building. Only a small portion of the site will be used for new entry stairs and exit ramp
to meet new building codes. The second story addition is an optimum use for the existing
site. Id
37. Traffic generated by the proposed expansion will not unduly burden traffic circulation
systems in the vicinity, and will not appreciably add to any traffic in the area. There
should be no noticeable change to the existing traffic patterns. May 24, 2001, application
(AR-00073-00083); staff report, P8 (AR-00063); October 3, 2001 Hearing Examiner
decision, finding No. 5-6 (AR-00045), May 10, 2002, Hearing Exammer deciszon,
findings No. 7-8, 12 and conclusions No. 1-10 (AR-00262-00268)
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -14
(Morford v. Quest-CUP, 206 S. State Street)
38. The number of full time employees of the site is not expected to change as a result of the
expansion of the building. The expansion is not anticipated to create any additional
demand for parking or for vehicle access. !d.
39. The performance characteristics of the proposed Qwest telecommunications expansion
are compatible with those of other uses in the neighborhood and vicinity. The existing
telecommunications facility has operated in the City since 1939 with little or no impact
on the neighborhood. The building operates quietly with few full time employees. Most
employees checking in and out of the facility do so during normal business hours with
little impact on any surrounding properties. There is little to no activity to affect
residences in the evenings. With the exception of the facility's HVAC equipment
occasionally operating and periodic testing of the backup power diesel generator, the
Qwest site performs its function as a telecommunications switching station without
disruption to surrounding land uses. The addition of the second floor addition will not
appreciably change these characteristics. Staff Report, p 9 (AR-00064), Id.
40. The existing property is already well landscaped. After construction of the second story
addition, damaged landscaping will be replaced with new street trees planted along East
Gowe Street. The existing landscape buffer to the south of the building will be protected
during construction and will be enhanced at the completion of the addition. The site will
be landscaped according to Kent City Code, and, if required, enhanced through the
Downtown Design Review Program. Additionally, the Downtown Design Review
Program will require Qwest to incorporate various architectural and design features into
the building. This process specifies requirements for pedestrian amenities, human scale,
architectural scale, building detail and elements, and a variety of other guidelines to
ensure the development will be both aesthetically pleasing and in conformance with the
objectives of the downtown plan and downtown design guidelines. Staff Report, pp. 9-10
(AR-00064-00065); May 10, 2002, Hearing Examiner decision, findings No. 8-9, 12 and
conclusions No 1-2, 5-7, 10, and decision (AR-00260-00269)
41. All mechanical equipment and operations, with the exception of some HV AC equipment
and a diesel generator, are contained within the building, and building operations should
not create any adverse noise impacts to surrounding properties. Staff Report, pp. 7-12
(AR-00062-00067).
42. The City of Kent does not have a view protection ordinance or any view protection or
view preservation requirements applicable to the DCE zone. Neither the Qwest property
nor any surrounding properties within the DCE zone are part of a "view corridor" or have
been identified by the City as an area subject to view preservation of any kind. The top
of the Qwest second floor addition will not impact any views of properties located in
either a single family or multi-family zone within the City. Staff Report, p 12 (AR-
00067); October 3, 2001 Hearing Examiner Decision, Finding 7 (AR-00046), May 10,
2002, Hearing Examiner Decision (on remand), Fmding 3 (AR-00260-00261)
43. Section 15.08.060 of the Kent City Code does provide view corridor protection to
properties within the MR-H zone. No view corridor protection is provided in the DCE
zone. Paul Morford's Titus Manor Apartments were constructed in 1981. At that time,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-15
(Morford v. Quest-CUP, 206 S State Street)
because Mr. Morford's Titus Manor Apartments were within the MR-H zone, the view
protection ordinance applied to the Titus Manor Apartment property. However, the view
protection provided in the ordinance was removed by the Kent City Council with the
rezone of the area from MR-H to DCE in 1992. Thus, there is no view protection for the
Titus Manor Apartment property. Declaration of Brenda Ross, May 10, 2002, Hearing
Examiner Decision on Remand, Finding 3; KCC 15.08 060, City of Kent Ordinances No.
3050 and No 3051.
44. The City of Kent Comprehensive Plan designates the Qwest property as "City Center."
The Comprehensive goals and policies applicable to the Qwest CUP proposal include:
Goal UT -7, to promote the expansion of telecommunication
services to all locations within the Potential Annexation Area and
to provide access by future development to a variety of
telecommunication choices;
Goal UT -8, to review the location of new telecommunication
facilities to ensure that proposed locations promote the efficient
distribution of services and minimize impacts on adjacent land
uses and of the environment; and
Policy UT-8.1, to promote, where possible, the collection of
telecommunications facilities on existing structures or in existing
corridors without causing an undue burden on any single utility
provider.
The Qwest CUP application supports these comprehensive plan goals and policies. City
of Kent Comprehensive Plan, Staff Report, p. 6 (AR-00061), May 10, 2002, Hearing
Examiner Decision on Remand, Finding 5 (AR-00261).
45. The proposed use by Qwest qualifies as "warehouse and storage" under KCC 15.05.040,
because the building would be used to store batteries and telecommunication networking
devices. Parking requirements for this type of use are one parking space for every 2,000
square feet, or a total of 17 parking spaces. KCC 15 05 030 There is an existing 17 -stall
parking lot owned by Qwest located to the north of the existing building, across East
Gowe Street. This parking lot is seldom used and is rarely fulL Visitors to the subject
property find it more convenient to park along the public streets rather than to use the
parking lot. It is not a hardship to use the parking lot when visiting the Qwest building,
unless the visitor was handicapped. Testimony of Damien Hooper, Paul Morford and
Brenda Ross (Verbatim Minutes AR-00011-00038); October 3, 2001, Hearing Examiner
Decision, Finding 6 (AR-00045), May 10, 2002, Hearing Examiner Deczsion on Remand,
Finding 8 (AR-00262).
46. There is no testimony or evidence in the record that Mr. Morford, the property owner, or
any of the tenants or residents of the Titus Mansion Apartments will not be able to "use"
the building, the apartments or any specific apartment unit after construction of the
second floor addition to the Qwest facility. There is no testimony or evidence in the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -16
(Morford v. Quest-CUP, 206 S. State Street)
record that any tenant of the Titus Mansion Apartments will not be able to use their unit
for its intended purpose. There is no testimony or evidence in the record that the Titus
Mansion Apartments will not be able to be used for their intended purpose as apartments.
There is no testimony or evidence in the record that any of the present tenants of the Titus
Mansion Apartments will be displaced or will be forced to leave their unit as a result of
the Qwest second floor addition. There is no testimony or evidence in the record that
Qwest' s second floor addition or the increased level of use of that property will preclude
or in any way detrimentally impact the use of Mr. Morford's Titus Mansion Apartments.
Record, generally; Staff Report, pp. 6-13 (AR-00061-00068), 10-3-01 Hearmg Examiner
Decision, Fmdings 5-8 and Conclusions 1-8 (AR-00045-00049), May 10, 2002, Hearmg
Examiner Decision on Remand, Findings 7-10, 12 and Conclusions 1-10 (AR-00261-
00269).
47. Impacts to the value of the Titus Mansion Apartment property are not the same as
impacts to the use of that property. The evidence and argument presented by Mr.
Morford in his appeals goes only to the issue of detrimental impacts to the value of his
property and does not go to or establish any detrimental impact to the use of that
property. The City's CUP criteria upon which Mr. Morford's appeals are predicated
relates to detriments to "uses, legally existing or permitted outright in the zoning
district." KCC 15.09.030(D)(l). While construction of the second floor addition to the
Qwest facility might have an impact on the value of Mr. Morford's Titus Mansion
Apartments, it will not be detrimental to the actual use of that property. There is nothing
about the Qwest CUP permit or building expansion which is or will be detrimental to
uses of his property or any other properties legally existing or permitted outright in the
DCE zoning district. Id
48. The City Council finds that Mr. Morford's appeal addresses only the first CUP criterion
in KCC 15.09.030(D), which requires that: "the proposed use in the proposed location
will not be detrimental to other uses legally existing or permitted outright in the zoning
district." KCC 15.09.030(D)(l). The City Council finds that Mr. Morford's appeal does
not address, and is not based upon any of the other criterion for approval of a CUP as set
forth in KCC 15.09.030(D).
49. Mr. Morford's appeal does not address, discuss or apply Section 7(b) of Resolution No.
896, that proceedings were materially affected by irregularities and procedure. The City
Council finds that Paul Morford did not produce any evidence or offer any argument to
establish or infer that the proceedings were materially affected by irregularities in
procedure at any of the prior Hearing Examiner hearings, pursuant to Resolution No. 896,
Section 7(b ).
50. Mr. Morford's appeal does not address, discuss or apply Section 7(d) of Resolution No.
896, that the Hearing Examiner's decision is in conflict with the City's Comprehensive
Plan. The City Council finds that Paul Morford did not produce any evidence or offer
any argument to establish or imply that any of the Hearing Examiner decisions were in
conflict with the City's Comprehensive Plan, as set forth in Resolution No. 896, Section
7(d).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-17
(Morford v Quest-CUP, 206 S State Street)
51. The City Council finds that Paul Morford, the appellant, did not meet his burden of
proving any one of the standards for reversal or remand as set forth in Section 7 of
Resolution No. 896 which would support a decision to reverse, remand or modify the
Hearing Examiner's May 10, 2002, decision on remand.
52. The City Council has reviewed or is familiar with the records before the Hearing
Examiner as part of the Hearing Examiner's October 3, 2001, and May 10, 2002,
decisions, and finds that the Hearing Examiner committed no error, either procedural or
substantive, and that there is no basis for Paul Morford's appeal. The City Council
expressly finds that the findings of fact, conclusions of law and decision by the Hearing
Examiner in his October 3, 2001, and May 10, 2002, decisions are supported by the
record and by substantial evidence. All findings of fact set forth in the Hearing
Examiner's October 3, 2001, and May 10, 2002, decisions are incorporated herein by this
reference, and are made a part of this decision as though fully set forth herein. Hearing
Examiner record, generally.
CONCLUSIONS OF LAW
1. The Kent City Council has jurisdiction to hear and decide this appeal pursuant to Chapter
36.70B RCW, Resolution No. 896, KCC 12.01.040 (prior to Ordinance No. 3574) and
12.01.195.
2. This appeal by Paul Morford was timely filed, served and perfected pursuant to Chapter
36.70B RCW, Resolution No. 896, KCC 12.01.040 (prior to Ordinance No. 3574) and
12.01.195.
3. The City of Kent planning staff is a proper and necessary party to this appeal, per KCC
2.32.170.
4. This is a closed-record, quasi-judicial appeal, authorized by Chapter 36.70B RCW,
Resolution No. 896, KCC 12.01.040 (prior to Ordinance No. 3574) and 12.01.195.
5. All parties to this appeal were given timely and proper notice of the September 2, 2003,
appeal hearing date, the appeal hearing rules and all applicable closed-record appeal
procedures. No party objected to either the timing, the notices or the procedures
regarding the September 2, 2003, closed-record appeal hearing.
6. The City provided an appearance of fairness statement at the beginning of the September
2, 2003, closed-record appeal hearing, and there were no objections from any member of
the public nor any requests for any of the City Council decision makers to recuse
themselves for any reason. Accordingly, the City Council concludes that there was no
appearance of fairness violation, and any such claim is no longer timely and has been
waived.
7. The Mayor has authority to attend and consider this appeal and to review documents and
hear argument, but cannot vote on the appeal except in case of a tie. RCW 35A.l2.100.
In this appeal, however, the Mayor did not vote or participate in any decision making
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-18
(Morford v. Quest-CUP, 206 S State Street)
since the there was no tie (the vote was 5-1 to deny the Appeal and Affirm the Hearing
Examiner).
8. This appeal is limited solely to the issue of whether the Hearing Examiner, in his May 10,
2002, decision, committed error sufficient to meet one of the five criteria in Resolution
No. 896, §7 in evaluating and deciding the first criterion for a CUP, as set forth in KCC
15.09.030(D)(l).
9. There is no basis for any appeal of or challenge to any SEP A threshold determination or
other SEP A or environmental decision by the City of Kent, and no such appeal is
properly before the City Council.
10. There is no basis for an appeal of or challenge to any comprehensive plan or plan
amendment decision by the City of Kent, and no such appeal is before the City Council.
11. All conclusions of law set forth in the Hearing Examiner's October 3, 200 I, "Findings,
Conclusions and Decision," and his May 10, 2002, "Findings, Conclusions and Decision
on remand are incorporated herein by this reference and are hereby made a part of this
decision as if fully set forth herein.
12. Pursuant to the August 7, 2003, letter from Michael Walter to counsel for the parties, the
parties were advised that they could submit new or additional evidence if it was
"information that could not have been placed on the record previously", pursuant to KCC
§ 12.01.195 (A). No party submitted new or additional evidence prior to the September
2, 2003, closed record appeal hearing. No party sought to supplement the record through
any letter, motion or other request. Accordingly, the record consisted of those documents
and exhibits identified in the introduction section of this decision.
13. Pursuant to the August 7, 2003, letter from Michael Walter to counsel for the parties, and
following a request by counsel for Qwest, the parties were permitted to provide to the
City Council with written briefs prior to the closed record appeal hearing. Appellant Paul
Morford, through his counsel of record, submitted a brief on or about August 18, 2003,
entitled "Brief of Paul Morford on Appeal of Conditional Use Permit to West/Qwest."
On or about August 18, 2003, counsel for Qwest submitted a brief entitled "Qwest's
Memorandum in Opposition to Appeal of Paul Morford." The City Council reviewed
and considered both briefs prior to, and as part of its decision on this appeal.
14. Notice of the open record hearings before the Hearing Examiner was properly posted,
properly published and properly mailed to the public and parties of interest in accordance
with Kent City Ordinances. No party challenged the notices or procedures for the open
record hearings before the Hearing Examiner and, therefore, notice is presumed proper
and valid, and any claims of defective notice are waived.
15. The City of Kent is the designated lead agency for review of environmental impacts
under SEPA relating to the CUP proposal by Qwest. The City's SEPA official issued a
determination of non-significance (DNS) on or about August 9, 2001, which concluded
that there were no significant adverse environmental impacts associated with Qwest's
proposal. The DNS was not appealed and, therefore, is final and binding.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-19
(Morford v. Quest-CUP, 206 S. State Street)
------------------------~---
16. The City Council has taken judicial notice of the pleadings and other documents on file
with the King County Superior Court, Cause No. 02-2-13465-3 KNT, in the Wnt and
LUP A action Paul Morford v. KDW, Inc, et a/., and is generally familiar with the issues
and decisions in that case.
17. The Appellant, Paul Morford, has the burden of proof on this appeal.
18. Resolution No. 896, §7 sets forth five alternative criteria to overturn or reverse a decision
by the Hearing Examiner on a closed-record appeal. The C1ty Council can grant the
appeal and modify or reject the Hearing Examiner's decision only if the Appellant Paul
Morford meets his burden of proving one or more of the following critena:
a) There has been substantial error; or
b) The proceedings [before the Hearing Examiner] were materially affected
by irregularities in procedure; or
c) The decision of the Hearing Examiner was unsupported by material and
substantial evidence in view of the entire record as submitted; or
d) The decision of the Hearing Examiner is in conflict with the City's
Comprehensive Plan; or
e) There was insufficient evidence presented as to the impact on the
surrounding area.
Resolution No 896, §7
19. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that there was no substantial error by
the Hearing Examiner in approving Qwest's application for a CUP in his May 10, 2002,
decision. Therefore, the Appellant Paul Morford has not satisfied his burden of proof to
reverse or reject the Hearing Examiner's, May 10, 2002, decision, pursuant to §7 (a)
Resolution No. 896.
20. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that there is no evidence or inference
from the evidence that the proceedings before the Hearing Examiner, at any of the
Hearing Examiner hearings, was materially effected by irregularities in procedure.
Therefore, the Appellant Paul Morford has not satisfied his burden of proof to reverse or
reject the Hearing Examiner's, May 10, 2002, decision, pursuant to §7 (b) Resolution No.
896.
21. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that the May 10, 2002, decision by the
Hearing Examiner on Qwest's application for conditional use permit was clearly
supported by material and substantial evidence in view of the entire record as submitted.
Therefore, the Appellant Paul Morford has not satisfied his burden of proof to reverse or
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -20
(Morford v. Quest-CUP, 206 S. State Street)
reject the Hearing Examiner's May 10, 2002, decision, pursuant to §7 (c) Resolution No.
896.
22. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that the Hearing Examiner's May 10,
2002, decision is fully consistent with the City's comprehensive plan and current plan
amendments, and the decision does not conflict with the comprehensive plan or any plan
amendments. Therefore, the Appellant Paul Morford has not satisfied his burden of proof
to reverse or reject the Hearing Examiner's May 10, 2002, decision, pursuant to §7 (d)
Resolution No. 896.
23. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that there was sufficient evidence
presented to the Hearing Examiner regarding the impact of the approval of the
conditional use permit and the expansion (adding a second level) to the Qwest
telecommunications facility on surrounding areas, and that such evidence was duly and
fully considered by the Hearing Examiner and was taken into account in his May 10,
2002, decision. Therefore, the Appellant Paul Morford has not satisfied his burden of
proof to reverse or reject the Hearing Examiner's May 10, 2002, decision, pursuant to §7
(e) Resolution No. 896.
24. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes the Hearing Examiner properly and
fully concluded that the alleged view blockage claimed by Appellant Morford was not a
legally sufficient basis for denial of Qwest's application for a CUP in the DCE zone, a
zoning district with no set back requirements, no height limit and no view protection
ordinance. Therefore, the Appellant Paul Morford has not satisfied his burden of proof to
reverse or reject the Hearing Examiner's May 10, 2002, decision.
25. The City Council concludes that the DCE zone has no height limitation on buildings and
no view protection or view regulation ordinance. Thus, the City Council concludes that
the DCE zone is best used for business development that is relatively unfettered by
regulations of buildings such as setbacks, height restrictions and view protections.
26. The City Council finds that the case of Hansen v Chelan County, 81 Wn. App. 133
(1996) is applicable to the facts of this case and that the rule of law announced in that
case governs, in part, the Council's determination of Mr. Morford's appeal. The City
Council concludes that the effect of a proposed use on its neighbors will not support a
denial of a conditional use permit unless the effect is greater than that of uses permitted
without a conditional use permit. The Council concludes that Qwest's proposed second-
story addition has fewer land use impacts, and less potential for view blockage, than uses
that are permitted outright in the DCE zone without a CUP.
27. The Land Use Tables in KCC 15.04 indicate that the uses permitted outright in the DCE
zone include uses such as multi-family townhouse units, multi-family dwellings, multi-
family dwellings for senior citizens, group homes, public facilities, fire houses, police
stations, libraries, primary and secondary schools, general merchandise, dry goods,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-21
(Morford v Quest-CUP, 206 S. State Street)
variety and department stores, professional service buildings, administrative and
professional offices, general municipal use and buildings, performing and cultural art
uses, auditoriums, exhibition halls, bowling alleys, skate rinks, community clubs, athletic
clubs, recreation centers and the like. The City Council concludes that the subject
property owned by Qwest is over % acre and could easily accommodate many of these
permitted uses. Many of these structures could be built higher than Qwest's
telecommunications facility with the second-story added on. Therefore, Qwest's CUP
application for a second-floor addition to its Kent-Ulrich facility would create no land use
impacts greater than the impacts which could be expected from many of the
aforementioned (and other) permitted uses.
28. The basis for requiring a conditional use permit for the Kent-Ulrich facility was the
classification of the facility as a "utility" under KCC l5.08.030(b)(1). Even thought the
facility is technically classified as a ''utility," Qwest's proposal is different from other
utility type facilities such as electrical substations, pumping or regulating devices, gas,
steam and other facilities because all of the utility equipment will be stored inside or
underground, and not even be visible from outside of the building.
29. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that Qwest's proposed conditional use
permit would not have any land use impacts beyond those of other uses permitted
outright within the DCE zone without a conditional use permit. Appellant Paul Morford
did not present any evidence that the effect of the proposed use by Qwest of its facility
with the additional floor on neighboring properties would have an effect greater on those
properties than uses permitted in this zone without a conditional use permit. Therefore,
Appellant Paul Morford has not satisfied his burden of proof to reverse or reject the
Hearing Examiner's May 10, 2002, decision.
30. Although the Qwest CUP proposal may have some potential negative impact on Mr.
Morford's Titus Mansion Apartments, there is no evidence in the record that such impact
effects the actual use of his apartments or the tenants' use of individual units. According
to the American Heritage Dictwnary of the English Language (Third Edition), "use"
means "to put into service or apply for a purpose; employ", or "to avail oneself of;
practice, use." According to Black's Law Dictionary (Sixth Edition, 1990), "use" means
''to make use of; to convert to one's service; to employ; to avail one's self of; to utilize; to
carry out a purpose or action by means of; to put into action or service, especially to
obtain an end." In the land use context, Black's Law Dictionary defines use of property
as "its employment, occupation, exercise or practice." Here, there is absolutely no
evidence in the record, nor is there any testimony or argument that Mr. Morford will not
be able to use his Titus Mansion Apartments; nor is there any evidence, testimony or
argument that any of the tenants in those apartments cannot "occupy" or otherwise make
use of those units as a result of adding a second floor to the Qwest telecommunications
facility.
31. While Mr. Morford argues that the second story addition will cause some financial or
value detriment to his apartment building, import to the value or profit from the building
is not synonymous with detrimental impacts to the actual use of the property. The City
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-22
(Morford v Quest-CUP, 206 S. State Street)
Council expressly finds that Mr. Morford's property can still be used for its intended
purposes with the Qwest CUP approval.
32. Furthermore, not withstanding the preceding conclusions that the Qwest second-story
addition will not in any way detrimentally impact the"~" of Mr. Morford's property.
the City Council concludes that while the Qwest proposed second story may have some
negative impact on the Titus Mansion Apartments, it cannot be concluded that the impact
is "detrimental" such that the CUP application should be denied. The City Council
concludes that even if there is some loss of light or view caused by a second story
addition of the Qwest facility which may result in some reduction of the enjoyment of
Mr. Morford's apartments (but not use), such reduction does not cause any "injury" to
any person or thing or any damage as commonly understood because existing zoning
would have permitted the same or greater impacts under allowed uses.
33. The City Council concludes that with the conditions approved by the Hearing Examiner,
traffic generated by the proposed (increased) use will not unduly burden in his decisions,
the traffic circulation system in the vicinity of the Qwest facility.
34. The City Council concludes that with the conditions of approval as set forth in the
Hearing Examiner's May 10, 2002, decision, any potential impacts from the Qwest CUP
approval can be mitigated by conditions proposed by the staff and adopted by the Hearing
Examiner.
35. The Qwest proposal qualifies as "warehouse and storage" under KCC 15.05.040 because
the building would be used to store batteries and telecommunication networking devices.
Parking requirements for this type of use are one parking space for every 2000 square
feet, or 17 spaces total. KCC 15.05.030. The proposed addition of 17,000 square feet,
coupled with the existing building of 17,000 square feet, will require a total of 17 parking
spaces to meet the City Code. The proposed use of this facility is most closely associated
with warehousing and storage, not manufacturing, research, testing or other uses as
argued by Mr. Morford. The City Council concludes that the Qwest CUP proposal
complies with the parking requirements and will not cause any parking or traffic impacts.
36. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that Qwest's proposed CUP will not
require any additional employees at the facility, and will not create any new demand or
parking at the facility. The City Council concludes that Qwest's proposed CUP complies
with parking requirements established by Kent City Code, and that the Examiner's
findings that the proposed CUP complies with parking requirements is supported by
substantial evidence in the record. Therefore, the Appellant Paul Morford has not
satisfied his burden of proof to reverse or reject the Hearing Examiner's May 10, 2002,
decision pursuant to § 7 of Resolution No. 896.
37. Based on the record as a whole, the briefs of counsel for the parties, and argument by the
parties to this appeal, the City Council concludes that Appellant Paul Morford has not
satisfied his burden of proof under Resolution No. 896 and KCC 12.01.195 on this
appeal, and that the appeal must be denied.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION-23
(Morford v Quest-CUP, 206 S. State Street)
38. The City Council concludes that the Hearing Examiner did not err in his May 10, 2002,
decision, and that the Conditional Use Permit for the Kent-Ulrich facility as submitted
and approved by the Hearing Examiner on May 10, 2002, should be affirmed.
BASED UPON THE FOREGOING Findings of Fact and Conclusions of Law, the Kent
City Council makes the following:
DECISION
1. Appellant Paul Morford's closed-record appeal is hereby DENIED.
2. The Hearing Examiner's May 10, 2002, as well as his prior (October 3, 2001), decision is
hereby AFFIRMED.
3. The CUP proposal by Qwest as submitted to and decided by the Hearing Examiner on
October 3, 2001, and later affirmed in his May 10, 2002, decision is hereby APPROVED.
DECIDED this _2_ day of October, 2003.
ATTEST:
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P ICIVll\FlLES\OpenFIIes\0614\FmalFmdmgFactsConclusiOns..CLEAN doc
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION -24
(Morford v. Quest-CUP, 206 S. State Street)
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