sac-Ewan av:- - more as 2:BEFORE THE HEARING EXAMINER CITY OF SEATTLE In the Matter of the Appeal of YORK WONG, et al., SAVE OUR SQUARE, et 2.1., And JESSICA LUCIO From a decision issued by the Director, Department of Flaming and Development and a Certi?cate of Approval by the Department of Neighborhoods Hearing Examiner File: MUP 15?01 9 (CONSOLIDATED) Department References: 324K15 CITY OF AND JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL JUDGMENT ON THE CERTIFICATE OF APPROVAL CLAIMS 1. INTRODUCTION (?Applicant?) proposes to demolish an existing parking garage and construct an approximately ZOO-unit residential development at 316 Alaskan Way (?Project?) in the City of Seattle?s (?City?s?) Pioneer Square neighborhood. Due to its location in the Pioneer Square Preservation District, the Project required a Department of Flaming Development Master Use Permit and Department of Neighborhoods Certi?cate of Approval. Jessica Lucio (?Lucio?) and Save Our Square, an unincorporated collection of JOINT MOTION FOR PARTLAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 1 of 13 MCCULLOUGH HILL LEARY, PS. 701 Fifth Avenue, Suite 6600 Seattle, W721 98104 206.812.3388 206.812.3389 fax individuals interested in Pioneer Square preservation, (collectively, appealed the Certi?cate of Approval issued on October 22, 2015 (?Certi?cate of Approval Decision?). Appellants raise claims to which the Hearing Examiner lacks jurisdiction under the Seattle Municipal Code (?Code?) and the Hearing Examiner?s Rules of Practice and Procedure (?Rules?) 3 .O2(a) or where the claim presents no genuine issue of material fact. Thus, the City and Applicant (collectively, ?Respondents?) respectfully request that the Hearing Examiner: 0 Grant summary judgment on Save Our Square?s Issue 1 relative to materials because, as a matter of law, the Project?s materials are consistent with the Code; 0 Grant summary judgment on Save Our Square?s Issue 10 relative to street?level uses because, as a matter of law, the Code exempts the Project from such uses; 0 Grant summary judgment on Lucio?s height related claims because, as a matter of law, the Project is consistent with the relevant Code provisions governing height; 0 Dismiss Appellants? untimely raised State Environmental Policy Act claims because the Examiner lacks jurisdiction under SMC 23.66 and 23.76; and Dismiss Appellant?s demolition claim because the Examiner lacks jurisdiction. The Respondents request that the Hearing Examiner grant its Motion for Partial Dismissal and Partial Summary Judgment (?Motion?) on the Certi?cate of Approval appeals. ll. FACTS As noted above, the Project is for an approximately 200 unit mixed?use residential development located at 316 Alaskan Way. The Project site is located Within the City?s Pioneer Square Preservation District (?District?). Second Declaration of Ian Morrison (?Second Morrison Ex. A Decision?), pg. 2 (on ?le with the Hearing Examiner). The Project is zoned Pioneer Square Mixed with a maximum 120 ft. height 100/100?120?) for mixed?use residential projects using the incentive bonus. Id; SMC 23.49.178. 1 The Hearing Examiner consolidated the Appellants? appeals of the Project?s Certi?cate of Approval with the York Wong (?Wong?) appeal of the Project?s MUP. See Order Consolidating Hearing, November 9, 2015. The Save Our Square appellants coincide, in part, with the Wong appellants. Compare Wong Appeal, pg. 22 with Save Our Square Appeal, pg. 1. Ms. Lucio is also an additional appellant to the Wong appeal. Wong Appeal, pg. 22. MCCULLOUGH HILL LEARY. RS. 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGIVIENT - Page 2 of 13 June 11, 2015, DPD published the MUP decision for the Project, which consisted of a Determination of Nonsigni?cance with conditions. Wong timely appealed the DNS. On July 30, 2015, the DON Director (?Director?) issued a Certi?cate of Approval approving the Project. Save Our Square and Lucio appealed this Certi?cate of Approval. On September 9, 2015, the Hearing Examiner remanded the July Certi?cate of Approval to DON to obtain the Pioneer Square Preservation Board?s (?Board?s?) written recommendation. On October 7, 2015 the Board formally approved and issued its written recommendation to the Director. Third Declaration of Ian S. Morrison (?Third Morrison Ex. A. On October 22, 2015, the Director issued the Certi?cate of Approval Decision at issue in this appeal a?er consideration of the Board?s written recommendation, SMC Ch. 23.66, District Rules, Secretary of Interior standards, application materials and public comments. Third Morrison Decl., Ex. B. In particular, the Certi?cate of Approval Decision authorized the: (1) demolition of the existing parking garage because the Director found it lacked architectural or historical signi?cance to the District; and (2) the exterior building design and construction as a 120 it. mixed?use residential structure with an enclosed rooftop amenity space. Id, pgs. 7-9. On November 4, 2015, Lucio appealed the Certi?cate of Approval Decision. On November 5, 2015, Save Our Square separately appealed the Certi?cate of Approval Decision. The Hearing Examiner consolidated these appeals with the Wong Appeal of the Project?s DNS. ISSUES The issues raised by this motion are as follows: 1. Should the Hearing Examiner grant summary to Respondents on Save Our Square?s Issue 1 because the Project?s materials comply with SMC 2. Should the Hearing Examiner grant summary judgment to Respondents on Save Our Square?s Issue 10 because the Project is not subject to street?level uses? MCCULLOUGH HILL LEARY, RS. 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax JOINT MOTION OR PARTIAL SAL AND PARTIAL SUIVIMARY JUDGMENT - Page 3 of 13 Should the Hearing Examiner grant summary judgment to Respondents on Lucio?s height claim as the Project complies with the Code?s height provisions? 4. Should the Hearing Examiner dismiss Appellants? SEPA claims when they are untimely raised in the Certi?cate of Approval appeal and she lacks jurisdiction? 5. Should the Hearing Examiner dismiss Appellant?s demolition claims which fall outside the Hearing Examiner?s jurisdiction pursuant to SMC 2366.1 IV. EVIDENCE RELIED UPON This motion relies on the pleadings and papers on ?le in this matter, including the Third Declaration of Ian S. Morrison (?Third Morrison Decl.?) ?led in support of this Motion. V. ARGUMENT A. Certi?cate of Approval Decisional Appeal Standard of Review. The Appellants challenge the Director?s Certi?cate of Approval Decision. In any challenge to the Director?s decision on a Certi?cate of Approval issued for a project in the Pioneer Square Preservation District, the Hearing Examiner may reverse or modify the Director?s decision ?only if the Hearing Examiner ?nds that [the Director?s] decision was arbitrary and capricious.? SMC see also HER 3.17(a) (Examiner must follow the standard provided by ordinance). This is a signi?cant burden for Appellants to surmount: [A]gency action is arbitrary and capricious if it is willful and unreasoning and taken without regard to the attending facts and circumstances. ?[W]here there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous. Washington Indep. Tel Ass ?72 v. Washington Utfls. Tramp. Comm 148 Wn.2d 887, 905? 906, 64 P.3d 606 (2003) (citations omitted). ?An appeal may be dismissed without a hearing if the Hearing Examiner determines that it fails to state a claim for which the Hearing Examiner has jurisdiction to grant relief or is MCCULLOUGH HILL LEARY. RS. 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 4 of 13 without merit on its face, frivolous, or brought merely to secure delay.? HER ?Any party may request dismissal of all or part of an appeal by motion.? Id. (emphasis added). In addition, Respondents are entitled to summary judgment if there is no genuine issue of material fact, and, as matter of law, Appellants? claim fails to establish that the Certi?cate of Approval Decision was willful and unreasoning and taken without regard to the attending facts and circumstances. In re Seat?e Chinese Chamber of Commerce, HE File No. (Order on Motions), August 20, 2004, pg. 1; see also CR 56; Washington Indep. Tel. Ass ?11, 148 Wn.2d at 905-906, Magula v. Benton County Title Co., Inc, 131 Wn.2d 171, 182, 930 P.2d 307 (1997). A party moving for summary judgment may meet its burden to show there are no genuine issues of material fact by pointing out to the Hearing Examiner that there is an absence of evidence to support the nonmoving party?s case. Celotex Corp. v. Catrett, 477 US. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Young v. Key Pharmaceuticals, Inc, 112 Wn.2d 216, 225, 770 P.2d 182, 187 (1989), rev in part on other grounds, 130 Wn.2d 160, 179 (1996). Once the moving party has made this prima facie showing, the burden shi?s to the non- moving party to show that a genuine issue of material fact exists. Briggs v. Nova Servs., 166 Wn.2d 794, 811, 213 P.3d 910 (2009). Appellants ?may not. . .rely on speculation, argumentative assertions that unresolved factual issues remains, or having its af?davits considered at face value.? Dombosky v. Farmers Ins. Co., 84 Wn. App. 245, 253, 928 P.2d 1 127 (1996). The Hearing Examiner should grant a motion for summary judgment ?only if, from all the evidence, reasonable persons could reach by one conclusion.? 1d. (citations omitted). B. Director?s Decision is Consistent with SMC 23.66.180.A on Materials. Save Our Square alleges that the Director?s Certi?cate of Approval Decision erred MCCULLOUGH HILL LEARY. P.S. rm Fifth Avenue, Suite 6600 semis, WA 93104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 5 of 13 because the ?materials do not meet the requirements? of SMC 23.66.180.A. Save Our Square?s claim is without merit. As a matter of law, the Project?s materials do not con?ict with the applicable Code subsection regarding materials. Thus, Respondents respectfully request that the Hearing Examiner grant partial summary judgement in its favor on Save Our Square?s Issue 1. SMC 23.66.180.A regarding ?Materials? in the District provides, in pertinent part: Unless an alternative material is approved by the Director following Board review and recommendation, exterior building facades shall be brick, concrete tinted a subdued or earthen color, sandstone or similar stone facing material commonly used in the District. Aluminum, painted metal, wood and other materials may be used for signs, window and door sashes and trim, and for similar purposes when approved by the Director as compatible with adjacent or original uses, following Board review and recommendation. (emphasis added). The Director, following the Board?s written recommendation, approved the Project?s materials palette of ?brick, aluminum and wood with a glass system on the top.? Third Morrison Decl., Ex. B, pg. 8. The Project?s Certi?cate of Approval Decision elevation is shown below. MCCULLOUGH HILL LEARY, P.S. 701 Fifth Avenue, Suite 6600 Seattle, 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT Page 6 of 13 There is nothing in the Proj ect?s approved materials palette that is incompatible with SMC 23.66.180.A. The Project?s exterior facade is primarily brick with aluminum and wood used in windows, door sashes and trim. The Director-approved upper level glass system was a design change adopted in response to the Board?s suggestion to use materiality to help the Project ?appear lighter and reduce the perception of scale.? Third Morrison Decl., Ex. B, pg. 8. While Save Our Square may have alternative aesthetic ideas, as a matter of law, the Director approved Project materials of brick, aluminum, wood and glass cannot be seen as incompatible with the Code?s direction to use these materials set forth in SMC 23.66.180.A. For these reasons, Respondents respectfully request that the Hearing Examiner grant partial summary judgement in its favor on Save Our Square?s Issue 1 regarding materials. C. Director?s Decision is Consistent with SMC 23.66 Development Standards. Both Save Our Square and Lucio raise alleged zoning compliance issues related to street level uses and height under SMC 23.66. But, as a matter of law, there is no genuine issue of material fact on either claim. Respondents, therefore, are entitled to summary judgment on both. i. Director?s Decision is Consistent with the Street?Level Use Map B. Save Our Square?s Issue 10 claims that the Certi?cate of Approval Decision approved ?discouraged street-level uses without a determination that they are compatible with the uses preferred at street level? pursuant to SMC 23.66.1300 Save Our Square misreads the District?s zoning map governing street?level uses. As a matter of law, SMC 23.66.130 Map does not require street-level uses at the Project site. There is no genuine issue of material fact regarding the street-level use claim and the Respondents are entitled to judgment as a matter of law. The Code de?nes preferred and disCouraged areas for street-level uses in relation to . .the area designated on Map for 2366130.? As Map indicates, the bolder lines shown in MCCULLOUGH HILL LEARY. RS. 701 Fifth Avenue, Suite 6600 Seattle, W21 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTLAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 7 of 13 the Map key establish the applicable street frontages subject to the street-level use standards. Declaration of Genna Nashem, Ex. (?Nashem Decl.?) (on ?le with Hearing Examiner). The applicable street-level uses are required only for ?lots with frontage on designated streets and alleys? indicated by the bolded lines re?ected in the Map key. SMC 23.66.130, Map see also Nashem Decl., 12 policy is to apply the Map consistent with this standard). The Hearing Examiner must grant deference to interpretation of SMC 23.66.130. Citizens for Safe Neigh. v. City ofSeattIe, 67 Wn. App. 436, 440, 836 P.2d 235 (1992) (?It is a well?established rule of statutory construction that considerable judicial deference should be given to the construction of an ordinance by those of?cials charged with its enforcement?). The Project abuts Alaskan Way and South Jackson Street. Second Morrison Decl., Ex. A. However, as Map demonstrates, the bolded lines along Alaskan Way start north of Main Street and the bolded lines along Jackson Street stop at the mid-block east of 1St Avenue. Id. Lastly, the bolded lines do not include the alley between Alaskan Way and 1St Avenue. Id. Therefore, as a matter of law, there are no designated frontages requiring street-level uses abutting the Project?s lot streets or alleys. SMC 23.66.130, Map see also Nashem Dec]., 11 12. Notwithstanding Save Our Square?s unfounded assertion to the contrary, Map on its face reveals that the designated street?level use frontages do not include streets or alleys abutting the Project. Accordingly, there is no genuine issue of material fact in relation to street-level uses. Respondents, therefore, are entitled to summary judgment as a matter of law on Issue 10. ii. Director?s Decision is Consistent with the Code?s Height Provisions. Lucio alleges that the PSM 100/100-120 zone heights are not applicable for the Project because it would ?result in the demolition of a historic structure.? Lucio Appeal, pg. 4. Lucio cites Ordinance No. 123034 and the District?s (superseded) Rules in support. Id, pg. 4?5. As a MCCULLOUGH HILL LEARY. RS. 701 Fifth Avenue, Suite 6600 888888, 98104 206.812.33 88 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUNIMARY JUDGMENT - Page 8 of 13 matter of law, Respondents are entitled to summary judgment because neither Ordinance No. 123034 nor the District?s Rules allow the Director to deny a Certi?cate of Approval that is consistent with SMC 23.49.178 and SMC 23.66.140 standards for height in the PSM zone. As an initial matter, Lucio argues that Ordinance No. 123034 somehow prevents PSM 100/100-120 maximum heights. This is incorrect. Ordinance No. 123034 is of no import to the applicable PSM 1002? 100-120 governing the Project site because that citation involves a distinct PSM 85/ 120 zone. Second Morrison Decl., Ex. (on ?le with the Hearing Examiner). The PSM zone at issue was created with Ordinance No. 123589 adopted in April 2011. Third Morrison Dec1., Ex. (Ordinance No. 123589 excerpt regarding PSM 100/100-120 zone). The Project?s heights are governed by SMC 23.49.178 and SMC 23.66.140. Lucio cites no valid authority contradicting the PSM 100/100?120 zone height provisions.2 Nothing in SMC Ch. 23 .66 authorizes the Director to reject a Certi?cate of Approval application that is consistent with the Code height standards. In fact, only the Director?s rejection under Lucio?s purported theory would be arbitrary and capricious. Washington Indep. Tet. Ass ?12, 148 Wn.2d at 905?906. As a matter of law, the Director?s Certi?cate of. Approval Decision to approve the height, notwithstanding Lucio?s subjective opposition, cannot be deemed arbitrary and capricious. Secondly, Lucio?s purported reliance on the District?s Rules is also misplaced. The Code provides that the District?s Rules are to ?clarify the use and development standards.? SMC 23.66.] 10.D. The Board adopted the District?s Rules on height in 1999. Third Morrison Decl., Ex. D. At the time, the District?s Rules helped ?clarify? the then applicable Code height 2 Lucio cites the Seattle Design Review Guidelines in support of her argument regarding alleged height noncompliance. Lucio Appeal, pg. 5. However, the Code exempts projects within special review districts, including the District, from design review. SMC 23.41.004.C.1 (?New structures located in special review districts, regulated by Chapter 23 .66. . Accordingly, the Project is not subject to the SMC 23 .41 design review process. MCCULLOUGH HILL LEARY, PS. 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 9 of 13 standards in the Distract. 1611, pg. 18. However, the City Council later adopted a new PSM 100/100-120 zoning development standard. Third Morrison Decl., Ex. C. As the Director noted, the Board?s Rules do not control the use and development of standards for the District. Id, Ex. B, pg. 7. Where there is a con?ict between the Code development standards and the District?s Rules, Washington courts have long held that it is the Code that governs the review of a project application. Viking Props, Inc. v. Helm, 155 Wn. 2d 112, 126, 118 P.3d 322 (2005). As a matter of law, there is no genuine issue of material fact regarding the Director?s Certi?cate of Approval Decision ?nding the Project was consistent with the applicable PSM 100/100?120 zone heights. Accordingly, Respondents are entitled to summary judgment as L-ucio?s height claim. Lastly, to the extent Lucio is challenging the adoption of the PSM 100/100-120 zoning regulating the heights at the Project site, her challenge is time?barred. Under state law, the Hearing Examiner lacks jurisdiction over appeals of land use planning actions, including new development regulations. Instead, such challenges must be brought before the Growth Management Hearings Board. RCW 36.70A.280. However, any such challenge to the PSM 100/100?120 rezoning adopted by the City in 2011 would be time?barred now. See RCW 36.70A.280 (60 day appeal period to the Growth Management Hearing Board for new development regulations); SMC 23.76.022 (14 day appeal period to the Hearing Examiner). For these reasons, Lucio?s claims regarding height?related zoning compliance must be dismissed. D. Hearing Examiner Must Dismiss the Untimely Certi?cate of Approval Claims Regarding SEPA as Outside the Hearing Examiner?s Jurisdiction. In their Certi?cate of Approval Decision appeals, Appellants attempt to raise new SEPA claims. Save Our Square Appeal, pg. 8 (Issues 12 (alleging an Environmental Impact Statement is required), 13 (challenging the adequacy of the SEPA archaeological review) and 14 MCCULLOUGH HILL LEARY RS. .701 Fifth Avenue, Suite 6600 Seattle, 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 10 of 13 (challenging the adequacy of the SEPA construction?related review)); Lucio Appeal, gs. 8?10 (challenging the alleged adequacy of the SEPA height, bulk and scale review). This is a very belated collateral attack on the Project?s DNS to which the Hearing Examiner lacks jurisdiction. The Hearing Examiner is limited to ?only the authority granted. . .by statute or ordinance.? HJS Development, 148 Wn.2d at 471. In the context of the Certi?cate of Approval appeals at issue, the Hearing Examiner?s jurisdiction is limited on review of Certi?cate of Approval for ?compliance with the [Special Review District SMC Ch. 23.66 provisions], the district use and development standards, and the purposes of creating the district.? SMC 23.66.030.D.2.c; see Seattle Chinese Chamber of Commerce, supra, pg. 1 (reviewing appeal under SMC 23.66.030.D.2.c standard). The Code does not contemplate a SEPA challenge governed under SMC Ch. 23.76 through a Certi?cate of Approval appeal. Id. The Hearing Examiner is without authority to hear Appellants? ill-fated attempt to graft SEPA onto a SMC 23.66 appeal. Respondents respectfully request dismissal of Appellant?s wayward SEPA claims. Further compounding the lack of jurisdiction, these SEPA-related claims are untimely. The Project?s DNS is a Type II MUP decision. SMC SMC 23.76.006. The Code provides that the Hearing Examiner?s jurisdiction to review Type II MUP decisions is limited to: The Hearing Examiner shall entertain issues cited in the appeal that relate to compliance with the procedures for Type II decisions as required in this Chapter 23.76, compliance with substantive criteria, determinations of nonsigni?cance (DNSs), adequacy of an EIS upon which the decision was made, or failure to properly approve, condition, or deny a permit based on disclosed adverse environmental impacts, and any requests for an interpretation included in the appeal or consolidated appeal pursuant to Section 23.88.020.03. SMC 23.76.022.06. In order to invoke the Hearing Examiner?s jurisdiction under SMC Ch. 23.76, an appellant must ?le an appeal ?with the Hearing Examiner by 5 pm. on the fourteenth calendar MCCULLOUGH HILL LEARY. RS. 701 Fifth Avenue, Suite 6600 Seattle, 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL JUDGMENT Page 11 of 13 day following publication of a notice of decision. . SMC 23.76.022.C.3. The Project?s DNS was issued on June 11, 2015. Morrison Decl., Ex. A. Appellants (acting as ?additional appellants? on the Wong Appeal) already challenged 11 elements of the Project?s MUP Decision. Wong Appeal, pg. 22. However, Appellants? failed to timely raise any issue of height, bulk or scale, archeological andz?or demolition related environmental impacts. Id. The Project?s DNS appeal window closed on June 25, 2015. The Appellants? (belated) claims now raised in the Certi?cate of Approval Decision appeals fall months outside the SEPA appeal window.3 The tardiness of the Appellant?s SEPA?related claims in this context prove fatal. This is a separate basis for dismissing those claims raised upon the Certi?cate of Approval appeals. Therefore, Respondents respectfully request dismissal of Appellant?s wayward SEPA claims. E. Hearing Examiner Must Dismiss Demolition Claims for Lack of Jurisdiction. Lucio and Save Our Square both raise issues related to demolition approval. Lucio Appeal, pg. 5 (alleging existing garage ?cannot be demolished?); Save Our Square Appeal, pg. 8 (Issues 14 claiming Certi?cate of Approval was issued ?without assessing the physical impacts of The Hearing Examiner lacks jurisdiction and these claims must be dismissed. Under SMC 23.66.115.D, the Code expressly prohibits administrative appeals of the DON Director?s decision on demolition approval. Instead, the Code is clear the DON Director?s decision ?shall be ?nal. Any judicial review must be commenced as provided by state law.? Id. As a quasi?judicial of?cial, the Hearing Examiner ?has only the authority granted it by statute and ordinance.? HJS Development, Inc. v. Pierce County, 148 Wn.2d 451, 471, 61 P.3d 3 As additional appellants to the Wong Appeal, Appellants have already unsuccess?illy attempted to interject untimely SEPA claim on height, bulk and scale. The Hearing Examiner?s Order dated July 28, 2015 denied the prior attempt to amend the SEPA issues. The Hearing Examiner should deny this newest end rim around the Rules. 4 For the reasons discussed in?a, Save Our Square?s attempts to raise demolition under the guise of SEPA also fail. MCCULLOUGH HILL LEARY, RS. 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax JOINT MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT - Page 12 of 13 1141 (2003); HER 2.03. Here, the Code expressly precludes the Hearing Examiner?s review of the DON Director?s demolition approval. This is the end of the inquiry. The Hearing Examiner should decline the Appellant?s invitation to exceed the bounds of her jurisdiction. HER The Respondents, respectfully request that the Hearing Examiner dismiss the Appellant?s demolition related claims set forth Save Our Square Issue?s 14 and the Lucio Appeal statement. VI. CONCLUSION For the reasons stated above, the Respondents request that the Hearing Examiner grant its Motion for Partial Dismissal and Partial Summary Judgment on the Certi?cate of Approval. Respectfully submitted this 11?h day of December, 2015. PETER S. HOLMES CITY OF SEATTLE ?btricl? blowns, WSBA #25276. 44 ssistant City Attorney Mh? ?~1sz ?n?h Attorney for Department of Neighborhoods By: HILL LEARY, P.S. By: 2? Joim c. M?duuough, WSBA #12740 Ian S. Morrison, WSBA #453 84 Attorneys for Applicant HILL LEARY. RS. 701 Fifth Avenue, Suite 6600 Seattle, 98104 206.812.33 88 206.812.3389 fax JOINT MOTION FOR PARTLAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT Page 13 of 13