HomeMy WebLinkAboutWoodlands Final Decision - Updated 11-03Preliminary Plat and Buffer Averaging - 1
BEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY
Phil Olbrechts, Hearing Examiner
RE: Woodlands at Redondo Creek
Preliminary Plat
19-105072-00-SU, 19-105073-00-SE
and 19-105074-00-UP
FINDINGS OF FACT, CONCLUSIONS OF
LAW AND DECISION
INTRODUCTION
The Applicant requests approval of 67-lot preliminary plat and buffer averaging of a Category II wetland
for a 21.85 project site located northwest of the intersection of South 304th Street and 20th Avenue South.
The applications are approved subject to conditions.
To dispel any confusion, the hearing held on October 7, 2020 was automatically shut down by the Zoom
application and was not intentionally cut-off by the examiner or any City staff. Fortunately, this
occurred after the close of hearing testimony so no one was deprived of an opportunity to speak.
The proposal adequately addresses all of the issues raised in the numerous comments submitted by
persons living in the area surrounding the project site. Many of the potential impacts raised by project
opponents have already been addressed by detailed regulations adopted by the City Council, such as
traffic congestion standards, wetland and stream buffers and drainage standards. This is no coincidence,
since the impacts identified by project opponents are fairly typical of project impacts that have been
raised in the Federal Way community as well as all other Washington State communities for decades.
Through corresponding decades of evolving development standards, the Federal Way City Council has
adopted comprehensive development standards that in essence set standards of acceptability for just
about every development impact typically associated with new development. The City’s subdivision
standards provide some flexibility for mitigating impacts that haven’t been anticipated in these standards,
but those circumstances are rare and none were identified in this round of development review.
A concern raised by numerous persons such as Margaret Reyhner, Laurie Ault-Sayan, Richard Kelly and
Don Chandler was traffic impacts on 304th St. In its concurrency analysis, as outlined in the findings of
this decision the City staff determined that the proposal will not violate the City’s transportation level of
service standards. These level of service standards are levels of congestion found acceptable by the City
Council. The City Council’s authority to set level of service standards is limited by Growth
Management Act requirements that the City be able to fund the level of service standards it adopts. The
federal and state constitutions prohibit cities from requiring developers to pay more than their
proportionate share of traffic impacts. The City is left with the responsibility of funding the remaining
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gap between what developers pay and what’s necessary to meet level of service standards in the City’s
capital facility plans. That is why adopted level of service standards are often less ideal than what local
residents find tolerable.
Margaret Reyhner, David Anderson and others also objected to the Applicant’s wetland buffer averaging
proposal. As outlined in the staff report and the findings of this decision, the Applicant has
demonstrated compliance with the City’s wetland buffer averaging regulations and for that reason is
legally obligated to approve it. The City’s wetland buffer averaging standards overall appear to result in
buffers that better protect wetlands than the standard buffer width requirements. The buffer averaging
standards require that the amount of buffer added to a wetland be at least as much as that removed.
Further, the buffer area added must be more sensitive and/or more functional than that removed. The
proposed buffer averaging meets both of these standards as well as all other averaging standards and for
that reason must be approved.
Margaret Reyhner, John Pearson, Anne Etter and others have also expressed concerns over impacts to
the water quality of Steel Lake. As outlined in the findings of this decision, staff have found the
preliminary stormwater design to comply with the City’s stormwater regulations and final design will be
reviewed and approved during the engineering review of the preliminary plat. As outlined in Finding of
Fact No. 6, the Applicant’s stormwater system must comply with the design and operational standards of
the 2016 King County Surface Water Design Manual and city amendments, the Comprehensive Surface
Water Management Plan, and the Stormwater System Operation and Maintenance Manual. These
regulations require that the proposal not create any off-site stormwater volumes and velocities that
exceed pre-development, forested project site conditions. The standards also require extensive design
controls to ensure that stormwater water quality is adequately treated before exiting the project site. No
evidence has been presented by anyone that these rigorously designed water quality and stormwater
control standards are insufficient to protect the water quality of Steel Lake.
Margaret Reyhner, John Pearson, Anne Etter and others have concerns over the density proposed for the
development. The density is authorized by Federal Way regulations and cannot be denied absent a
compelling reason to do so. Project opponents have not identified any reason why the density is not
appropriate for this location. Traffic and other impacts identified by project opponents are all fully
mitigated and/or meet applicable level of service and zoning code performance standards. The Growth
Management Act required the City Council to adopt urban densities for development within the City so
that urban sprawl and its associated adverse impacts to environmental resources and inefficient use of
infrastructure in more rural areas can be avoided. The density proposed by the Applicant is consistent
with this objective and the zoning densities adopted by the City Council.
Richard Kelly, Laurie Ault-Sayan and Trinity and Don Chandler noted that water pressure is too low in
the area already and were concerned that the proposal would further decrease water pressure. The
development engineering supervisor of the Lakehaven Sewer and Water District, which services the
area, stated that the proposed development will have no impact on surrounding water pressure. In the
absence of any expert testimony to the contrary, Lakehaven’s engineering testimony on this issue is
taken as a verity.
Mark Sabol and Richard Kelly felt that 20th Street was too narrow to serve as an access road. They and
others expressed concern over line of sight as well and at least one person was concerned about turning
movements of 304th. The City’s public works department has investigated line of sight from all access
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points and found it to be safe. The department has also found that the access points provide safe access
to the site. A turn lane onto 304th will reduce traffic issues related to turning movements on that road
caused by the project. The public works department’s conclusions on roadway safety are based upon
expert opinions from at least one traffic engineer. No expert testimony was provided to the contrary so
the City’s conclusion on traffic safety are taken as the most compelling evidence in the record and no
further mitigation is required.
Finally, some project opponents noted that public opinion on the proposal is unanimously opposed. That
by itself is not a valid basis for decision making on the plat. In point of fact, basing a land use permitting
decision on community sentiment as opposed to compliance with permit review standards is judicially
considered to be an improper purpose and the basis for major liability suits. See Westmark Development
Corporation v. Burien, 166 P.2d 813 (2007)(10.7-million-dollar judgment for basing permitting
decisions on political pressure); Maytown Sand and Gravel LLC v. Thurston County, 198 Wn. App. 560
(2017)(12-million-dollar judgment for basing permitting decision on political pressure). In short, project
opposition can serve as a gauge for the severity or universality of a project impact. Those impacts can
often be addressed by adopted permitting standards. However, the opposition by itself does not serve as
a legally defensible basis for making a permit decision. If a project is denied or mitigated solely because
of community opposition, the permitting decision will ultimately be reversed on judicial appeal and the
community will be forced to pay for the damages incurred by the Applicant caused by the delay. This
decision is based upon the permitting standards adopted by the City Council and is not based upon the
number of people opposed to the project. If those permitting standards are well designed, and all
indications suggest they are, the City Council would come up with the same decision if confronted with
the same application.
ORAL TESTIMONY
This summary of hearing testimony is only provided as a general overview of public testimony and
should not be construed as a part of the adopted findings and conclusions. The summary is provided
purely as a convenience to the reader for an understanding of what information was shared during the
public hearing. No assurances are made as to accuracy. Nothing in the summary should be construed
as suggesting any priority or significance of testimony. Copies of the hearing recordings are available
from the City Clerk’s Office should a more accurate accounting be desired.
City Testimony
Becky Chapin, Federal Way Senior Planner, summarized the staff report. Staff received 11 written
comments, two of which were from public agencies SEPA Determination. No changes to the
environmental determination were made in response. No appeals were filed. The Applicant has requested
a wall height modification which City staff supports. Ms. Chapin read several corrections to the Staff
Report. On Page 10, the type of street on South 304th Street was changed to a modified Type K cross
section with half street improvements consisting of 22’ of pavement, curb, 8’ sidewalk, 3’ utility strip,
streetlights and a handrail. The right of way medication letter was admitted as Ex. 5.
On Page 17, recommendation #1, the Letter of Intent (Ex. 3) has been provided by Lakehaven. Also, on
Page 17, recommendation #4 has been clarified to require the planting plan at the time of engineering
Preliminary Plat and Buffer Averaging - 4
approval. Finally, on Page 17, recommendation #7 a value conclusion amount was p rovided by CBRE
(Ex. 23) as part of the appraisal. This value will be used instead of the latest assessed value. Ms. Chapin
also noted various references in the staff report to a 40-foot ROW dedication on the Lakehaven Water
and Sewer District property. This figure is actually 45 feet.
Ms. Chapin noted the Applicant has already met recommended approval criteria number 1. In response
to the examiner, Ms. Chapin noted the retaining wall will be 14 feet tall next to the wetlands. This
exceeds City standards and is subject to modification request. The request has been administratively
approved by staff, though Ms. Chapin was unsure if the modification decision needed to be consolidated
with the other decisions by the examiner. In response to the examiner’s question regarding school access
and public comments, Ms. Chapin replied all students will be bussed and the bus stop location will be on
site to the project rather than on the existing public right of way.
Staff Testimony
Savannah Nagorski, the Applicant’s engineer stated she did not have anything to add other than the
school bus stop will be within the plat. The School District wanted to make sure the roads are accessible
by the busses, but there is no specific plan right now. With respect to the retaining wall adjacent to the
wetland, Ms. Nagorski stated this might be delegated to engineering review. They provided a letter
stating how they met the modification criteria.
Public Testimony
John Pearson stated he’s been a resident of Steele Lake for fifty years. He is opposed to the project
because of the excessive density. The density needs to be lessened. He is concerned about impacts to the
wetlands and to the lake ecosystem. The outlet is very important, which extends into this area of
proposed development. He’s concerned there will be an adverse effect to the channel maintenance and
the outlet to the lake. He is concerned about wildlife, both common and threatened species. He is
concerned wildlife will be adversely affected. He’s also concerned about traffic impacts. South 304th
Street is already heavy in the afternoons. He’s concerned the development will only harm the existing
traffic issue. He believes it’s unsafe for school children walking on 304th. He thinks the sidewalks will be
an improvement but does not feel walking to school safety has been adequately addressed. He is opposed
to the project for these reasons. Mr. Pearson asked if he could introduce local wildlife photos. The
examiner stated he would leave the record open for another day.
Anne Etter stated she agrees with Mr. Pearson’s comments. She is concerned with the development as it
is currently proposed. In the past, the Federal Way City Council has been committed to the health of
Steele Lake and were against development in this area. Similar developments a couple of decades ago
were denied. She does not see this development as being responsible for this section of the waterway.
She has three main concerns – timing, which is controversial and opposed; traffic, which is a major
concern and the health of the lake ecosystem. Also, she is a client of Van Ness Feldman in another
matter. With respect to timing, these times are unprecedented. Neighborhoods are not communicating.
The timing of the hearing itself is challenging. Her concern is that there are budgetary constraints on the
City that is driving this development. She feels people beyond the 300-foot notification radius should be
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given an opportunity to comment. She requested a six-month delay for further public comment. She’s
heard mostly opposition to the project. Traffic is a serious concerns. There is poor line of sight at 20th
and 304th. The addition of at least 60 cars will cause traffic issues, even with widening. The line of site
and roadway geometry are already dangerous. She doesn’t think the traffic study adequately addressed
this issue. With respect to the ecosystem issues, there are several areas in the plans where the regulatory
minimums are being set aside for intrusions. This is not the plat of land to make exceptions for things
that protect the lake. The landscaping plan is loosely along the streets which will in no way replace the
tall trees and vegetation that exist. She is concerned the lake’s ecology will be harmed by the project as
the climate changes. This area is not the place for this type and intensity of development.
Overdevelopment is having a detrimental effect on the local quality of life. The neighborhood has
strongly opposed development here for decades. Ms. Etter also stated 20th Avenue S needs to be walked
by the examiner. The street is very small and steep. Even with widening, the topography makes the street
very challenging. The plat layout will mean the homes will use 20th to get to SR 99 and Military Road.
She thinks this will create dangerous conditions. Ingress and egress is problematic. Also, if the sidewalks
are from 20th towards SR 99 and if bussing is the plan, that won’t be realistic. There is a lot of foot traffic
on 304th because there are multiple bus stops there. The sidewalks need to go through 304th.
Margaret Reyhner stated she wasn’t aware of the hearing except from a neighbor. She is outside of the
notification radius. She mentioned her letter to the examiner (Ex. 3). She’s lived on the lake for 47 years
and has been activity involved in the lake management district. She is concerned about the effects of the
development on the entire area. She is very concerned about traffic. S. 304th is a bypass street that is
effectively a speedway. One neighbor put up her own speed limit signs. She is concerned about the
runoff from the additional traffic into the lake. There are drains that go into the lake, but they lack
expensive oil separators. She is concerned about the timing of the traffic study. The pandemic lockdowns
reduced the level of traffic and may have made it seem like there is much less traffic than there actually
is. She is concerned about the road widening by the lake. The wetlands buffer averaging disturbs her.
The average brings part of the wetland buffer from 150 feet to 112 feet. The wetlands is delineated as a
Category III but was only a couple points shy of a Category II, which would have a much higher buffer.
Also, if a wall is supposed to be six feet tall, what will a 14-foot tall wall do right next to the stream
outlet to the lake where it runs under the road? The wetlands study showed the homeless camps have
adversely affected the wetlands and buffers. The homeless camps should be removed. The property
owner here hasn’t done a good job of stewarding the land. She is concerned how the wetlands will be
repaired. She is not confident the wetlands planting will be the correct plants. She is also concerned
about the School District’s bussing radius of one mile. Her son went to Sacajawea and he had to walk to
school along 304th. If the District hasn’t committed to picking up those kids and bussing them, she
doesn’t think you can rely on them to do so. There are too many homes being proposed. This should be
half the number of homes. This property will never be restored. Redondo Creek is impo rtant to the
environment. The City calls it a minor stream, but no one is really taking care of it. With the
environment today, the concern about ecology and restoration of the environment, this project should be
required to better protect the stream. She asked a question about a homeowners association. She wanted
to know who enforces the wetlands buffers adjacent to private property.
Richard Kelly stated he has lived on 20th Avenue for six years. The changes concern him. He is
supportive of the development of the area because he supports removing the homeless encampments. He
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is concerned about traffic. 20th is very narrow and requires people to take turns when attempting to
access 304th. The traffic light at 304th and Pacific Highway is inconsistent, and traffic backs up. Adding a
lot of homes will further exacerbate this problem. How will we address chronic issues and emergent
issues like utility quality when the water pressure is low?
Don Chandler stated he is concerned about traffic. He disagrees with the conclusions of the traffic study.
He was unsure of the methodology. He wondered where the sidewalk improvement would be and if it
went far enough along 304th. He is also concerned about water pressure with the additional housing
units. The water pressure in this area is already low. He is not too keen on the amount of proposed
development.
Mark Sabol echoed comments regarding traffic. The hill is a safety issue. The project is too big for the
site and location. With regard to traffic, he wanted to know if ingress/egress could be on 288th which is
designed for heavy traffic. He is also on the lake committee and is very concerned about the lake’s
quality. He opposes the project, especially the size and scope.
Staff Rebuttal
Sarady Long, City of Federal Way Public Works, stated the project underwent a concurrency analysis
consistent with Federal Way Municipal Code Chapter 19. In particular, the intersection of 304th and SR
99 was reviewed. Comprehensive Policy 1.3 requires standards for signalized intersections to 2021. The
project will meet the volume capacity ratios in the Comprehensive Plan and the M unicipal Code. He
described the intelligent transportation system in place at this traffic light. The traffic study was
conducted in 2018, prior to the current virus slowdown. With respect to line of sight, the traffic analysis
determined there was adequate sight distance for that access point. The entire site plan meets City
standards. The proposed street widening will improve line of sight greatly by reducing overhanding
vegetation. In response to the examiner, Mr. Long stated it was his opinion that the line of sight issue
will be safe. Also, in response to the examiner, the sidewalk will be improved to the westerly property
line but not beyond. There are no issues with using 20th Avenue S as alternative access. The City looked
at sight distance for all areas of the project. The widening of the road will meet all City standards and
provide for safe access. Mr. Long stated the traffic counts was in 2019. The LOS is met for all
interactions in the present and future conditions with a LOS B. The internal road for 20th Avenue S is a
Type U which can accommodate 250-500 cars per day.
Ann Dower, City of Federal Way Public Works, stated the stormwater system will meet all current
standards. There will be dispersion trenches to add treated water to the wetlands ar eas. They did not
include oil water separation because this is not a typical requirement for single family homes. The
system does include typical stormwater treatment. The City has a stormwater department that has
inspectors that inspect each facility annually. The detention facility will be maintained by the City after
the first two years but will provide inspections before that. The City’s water quality standards will
require basic water quality which will pick up debris and dirt and minor pollutants. She is not sure of
which studies have been done. They base their standards on King County.
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Cole Elliott stated the surface water group conducts regular studies and testing of the lake. They have
been concentrating on lakes that have less robust water quality than Steele Lake.
Ms. Chapin stated the code requires the developer to form a homeowners association creating the
responsibilities and obligations of each lot. If the HOA is not maintaining its duties, the City will
perform code enforcement.
Applicant Rebuttal
Ms. Nagorski stated that the project meets all underlying zoning standards for the lots including density,
square footage, setbacks and design guidelines. As to the overall density for the entire project site, there
are fewer homes than would be provided if there were no critical areas. Flow with relation to Steele Lake
leaves the site and flows north, not the opposite. The impacts to the lake are minimal if any. Both the
Applicant’s biologists and the City’s third-party reviewers agree the proposal follows the City code. She
stated they Applicant needed until Monday at the end of day to respond to any public comments.
Clark Kunitsugu stated the retaining wall height will reduce grading in the wetlands buffer. The lake
flows onto the site, not the other way around. There won’t be any project effect on the lake. Ms. Chapin
stated the retaining wall decision will be made by the examiner.
EXHIBITS
The October 7, 2020 staff report along with attachments 1-32 were admitted as Exhibit 1 during the
October 7, 2020 public hearing. In addition, the following exhibits were also admitted during the
hearing:
Exhibit 2: Staff PowerPoint
Exhibit 3 10/5/20 letter from Margaret Reyhner
Exhibit 4 9/30/30 letter from Lakehaven Water and Sewer District
Exhibit 5 1/24/20 Street Modification Approval
Exhibit 6 10/7/20 email from David Anderson
Exhibit 7 10/7/20 email from Don Chandler
Exhibit 8 10/7/20 email from Anne Etter
Exhibit 9 10/7/20 email from John Pearson
Exhibit 10 10/7/20 email from Margaret Reyhner
Exhibit 11 10/7/20 email from Mark Sabol
Exhibit 12 10/12/20 Nagorski response to public comments
Exhibit 13 10/12/20 Sewall response to public comments
FINDINGS OF FACT
Procedural:
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1. Applicant . John Everett/Savanna Nagorski ESM Consulting Engineers, LLC 33400 8th Avenue
South, Suite 205 Federal Way, WA 98003.
2. Hearing. The Hearing Examiner conducted a virtual hearing on the application at 9:00 am on
October 7, 2020, Zoom Meeting ID: 935 1798 3995. The record was left open through October 8, 2020
for written public comment and October 12, 2020 for Applicant response.
Substantive:
3. Site/Proposal Description. The Applicant requests approval of 67-lot preliminary plat and
buffer averaging of a Category II wetland for a 21.85 project site located northwest of the intersection of
South 304th Street and 20th Avenue South. The site is accessed from 20th Avenue South and is
currently vacant. The site topography is characterized by a moderate westward facing slope spanning the
property that descends to a natural stream area. The slope grade reaches approximately 15 percent , or
slightly greater, near the wetland buffer where the stream is located. The subject site contains a
Category II wetland, Type Ns stream, and Geologically Hazardous Area (GHA). Buffer averaging is
being proposed for the wetland buffer in accordance with FWRC 19.145.440(5). The buffer averaging
proposal involves a total encroachment of 18,974 square feet, which would reduce the buffer in that area
to a minimum of 112.5 feet, which is 75 percent of the standard 150-foot buffer. The amount of buffer
area to be added as compensation is 19,188 square feet to the northern side further downstream.
4. Characteristics of the Area. Single-family dwellings zoned RS 5.0 and 7.2 adjoin the property
to the south and east. A day care center, water tower and single-family home are located to the north and
an office building is located to the west.
5. Adverse Impacts. No significant adverse impacts are associated with the proposal. A
determination of non-significance under the Washington State Environmental Policy Act was issued on
July 3, 2020 and that determination has not been appealed. Pertinent impacts are addressed as follows:
A. Critical Areas. The project site contains four critical areas – a stream, a wetland, a shoreline
and a geologically hazardous area. Staff have found that all critical areas have been protected
as required by the City’s critical area regulations and that determination is supported by the
administrative record. For that reason, those critical areas are found to be adequately
protected. All critical areas are addressed in more detail below:
1. Stream. The on-site stream has been rated as a non-fish bearing, minor stream Type Ns
due to seasonal flow and requires a 35-foot buffer. The project avoids intrusion into the
stream buffer.
2. Wetlands. The on-site wetland has been rated as a Category II wetland with six habitat
points requiring a 150-foot buffer. Buffer averaging is proposed due to slope and grading
activities in conjunction with roadway infrastructure construction and lot development.
Wetland reports and subsequent letters prepared by Sewall Wetland Consulting, Inc.,
provide relevant information about the wetland and associated wetland buffer; wetland
function and value; development impacts; proposed mitigation; construction management;
monitoring; maintenance; and contingency for the impacted area. Sewall’s analysis was
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subject to peer review by the City’s wetland consultant, ESA. Sewall has revised it’s
analysis and recommendations per the peer review to the satisfaction of City staff.
Under the Applicant’s proposed buffer averaging, the encroachment area is a low
functioning and sensitive area of the buffer and the replacement area is a higher
functioning and more sensitive area. The area proposed to be reduced has been impacted
by homeless encampment use. The area proposed to be added is mature forest with some
encampment impacts but generally less than that in the reduction area. In addition,
enhancement of the buffer addition area is proposed where needed as a result of a
homeless encampment to include removal of trash and debris and replanting with native
vegetation is proposed.
The proposed buffer averaged area will be wholly contained within the subject property.
3. Geologically Hazardous Area. The central portion of the site contains slopes that are
inclined at 15 percent or greater and are underlain by Alderwood series (AgD) soils.
These conditions meet the criteria for erosion hazard as defined by the FWRC. There are
no buffers associated with erosion hazard areas per FWRC 19.145.240 and protection
mechanisms are related to temporary and permanent erosion control measures. The
Applicant has submitted a geotechnical report, Ex. 26, that addresses this critical area.
The report concludes that with its recommended erosion control measures, the proposed
project will not decrease slope stability on adjacent properties. The report also concludes
that its recommended erosion control measures in conjunction with conformity to the
City’s stormwater standards will ensure that the adjacent wetland/stream corridor is
adequately protected from erosion or related instability.
4. Shoreline. The on-site wetland is considered a protected shoreline under the City’s
shoreline regulations. The wetland has this status because it is considered an “associated
wetland” of Steel Lake due to its hydrologic connection via a seasonal stream that flows
under South 304th Street to the lake. Pursuant to FWRC 15.05.020, Steel Lake is
considered a shoreline of the state, with a designation as Shoreline Residential. The
shoreline jurisdiction ends at the edge of the associated wetland. No development and/or
impacts to the shoreline are proposed.
5. Steel Lake. Some neighbors were concerned about stormwater impacts to the water
quality of Steel Lake. As noted by City staff and the Applicant, the City’s stormwater
standards contain extensive and rigorous standards for treatment of stormwater quality.
Those regulations also require that post-development off-site volumes and velocities not
exceed pre-development volumes and velocities. No evidence was presented that these
standards would be insufficient to protect Steel Lake water quality.
B. Compatibility. The Exhibit 2 aerial photograph shows the proposal as similar in density and
character to the surrounding predominantly residential uses.
C. Noise. One of the neighbors expressed concern that the removal of trees at the project site
would expose neighbors to more airport and other noise. Noise from the airport and other
sources is not an impact created by the Applicant and the Applicant cannot be legally
Preliminary Plat and Buffer Averaging - 10
required to mitigate noise impacts generated from other uses. See RCW 82.02.020; Burton v.
Clark County, 91 Wn. App. 505 (1998). Further, as noted in the Applicant’s first response to
public comments, Ex. 13l, the Applicant’s tree removal and retention is in conformance with
the City’s tree retention standards. There is no valid basis to require any additional tree
retention.
D. Endangered Species. In Ex. 9, John Pearson includes pictures of species that appear to be
protected under the City’s critical areas ordinance, such as pileated woodpecker and great
blue heron. In rebuttal, Ex. 13l, the Applicant notes that the subject property was evaluated
by two professional ecologists – the project’s consultant and the City’s consultant. No
endangered species or their habitats were observed by these professionals onsite. The pictures
provided by Mr. Pearson are perhaps the most compelling evidence of concern presented by
the neighbors, but they are backed by a dearth of evidence as to where and when they were
taken. For this reason, the Applicant’s expert evaluation, subject to peer review, is found to
be more persuasive and it has to be concluded that no protected species are located at the
project site.
E. Homeless Encampments. Some neighbors express frustration over the presence of homeless
encampments at the project site. There is no basis to conclude that the proposal will make that
situation worse and one would expect that the reduction of vacant space at the project site
would make the undeveloped areas a less attractive area for the homeless. In any event, there
is no basis to conclude that the proposal will increase any homelessness impacts and,
therefore, no basis to require mitigation of that impact.
6. Adequacy of Infrastructure and Public Services. As mitigated by the conditions of approval,
adequate and appropriate infrastructure will serve development as follows:
• Drainage: Storm drainage facilities are being designed in accordance with the 2016 King
County Surface Water Design Manual and city amendments, the Comprehensive Surface
Water Management Plan, and the Stormwater System Operation and Maintenance
Manual. The Applicant's Technical Information Report (TIR) (Exhibit 22) was reviewed
by the city's Public Works Department and found to be consistent with these standards for
the purposes of preliminary plat review. Ultimately, conformance to the City’s
stormwater standards assures no adverse drainage impacts to surrounding properties,
since the standards require that off-site drainage be limited to the volumes and velocities
of pre-developed, forested conditions.
A combined detention and water quality pond is proposed to control runoff from new
pervious and impervious surfaces. Level spreaders will distribute the pond discharge to
the onsite wetland and stream. All new pervious surfaces will be amended to satisfy soil
moisture holding capacity requirements, and perforated pipe connections will be provided
for each roof downspout connection prior to entering the public conveyance system.
Additional Best Management Practices will be evaluated during engineering review.
Final approval of the storm drainage facilities as shown on the grading and utility plan
and detailed in the TIR, will occur following Public Works Department engineering
review.
Preliminary Plat and Buffer Averaging - 11
• Transportation: The proposal will be served by adequate, appropriate and safe
transportation infrastructure.
Two vehicular access points to the site will be provided via the extension of 20th Avenue
South from South 304th Street and internal Road A to 20th Avenue South. Off-site
improvements will be required on the adjacent Lakehaven Water & Sewer District
property to create the second access point, which is required because the subdivision
exceeds 25 lots. South 304th Street will be improved as well along the property frontage.
As required by FWRC 19.135, all rights-of-way must be dedicated to the city and
constructed per adopted street standards. As shown on the preliminary grading and
utilities plan, internal streets are designed in accordance with Federal Way
Comprehensive Plan roadway cross sections “U” and “W.” Roads A and C will be
constructed as a Type “U” cross section with 32 feet of pavement, 4-foot planter strip, 5-
foot sidewalk, and 3-foot utility strip, all within a 56-foot right-of-way. Road B will be
constructed as a Type “W” cross section with 28 feet of pavement, 4-foot planter strip, 5-
foot sidewalk, and 3-foot utility strip, all within a 52-foot right-of-way.
Within the off-site extension of Road A, the Type “U” cross section will be modified to
24 feet of pavement, 4-foot planter strip, 5-foot sidewalk, and 3-foot utility strip, all
within a 40-foot right-of-way. Along the property’s east frontage, 20th Avenue South will
be constructed as a Type “U” cross section, with half-street improvements consisting of
16 feet of pavement, 4-foot planter strip, 5-foot sidewalk, and 3-foot utility strip, all
within a 56-foot right-of-way. Along the property’s south frontage, South 304th Street will
be constructed as a modified Type “K” cross section with half-street improvements
consisting of 22 feet of pavement, 8-foot sidewalk, and 3-foot utility strip, street lights,
and handrail as necessary, all within a 56-foot right-of-way. The Applicant will dedicate
30 feet of frontage along 20th Avenue South and 9 feet of frontage along South 304th
Street.
Lakehaven Water & Sewer District has agreed to dedicate a 45-foot right-of-way across
its northerly property line to accommodate the second access to 20th Avenue South. Prior
to engineering review approval, the Applicant will be required to submit a signed
agreement from Lakehaven that a 45-foot strip along the north property line of parcel
042104 9168 will be dedicated to the City of Federal Way for right-of-way purposes. At
the time of final plat approval, a statutory warranty deed for the 45-foot strip must be
signed to be recorded along with the final plat.
To comply with the city’s traffic concurrency regulations, the City Traffic Engineer
conducted a concurrency test to determine if the new trips generated by the subdivision
would result in failures to the city’s level of service. The test concluded that no failures
were anticipated and a Certificate of Reserve Capacity was issued on March 16, 2020
(Exhibit 28).
Off-site traffic impacts are addressed by the City’s traffic impact fee requirement, which
will be assessed and collected by the Applicant when the building permit is issued for
each lot, using the fee schedule then in effect, this is made a conditional of preliminary
Preliminary Plat and Buffer Averaging - 12
plat approval. At the Applicant’s discretion, the impact fee payment may be deferred to
final building inspection for each individual house per standards set forth in FWRC
19.100.075.
Some neighboring property owners expressed concern over line of sight, the width and
grade of the 20th street access and turning movements on 304th. The City’s public works
department has investigated line of sight from all access points and found it to be safe.
The department has also found that the access points provide safe access to the site. A
turn lane will be added to 304th to facilitate access onto 20th. The public works
department’s conclusions on roadway safety are based upon expert opinions from at least
one traffic engineer. No expert testimony was provided to the contrary so the City’s
conclusion on traffic safety are taken as the most compelling evidence in the record and
no further mitigation is required.
• Open Space: As required by applicable regulations, the project provides adequate and
appropriate open space. The proposed plat provides a variety of conservation,
constrained, and buffer open spaces on site. FWRC Chapter 18.55, “Design Criteria,”
requires dedication of land on site for open space, or a fee in lieu payment. Per FWRC
18.55.060, a minimum of 15 percent of the gross land area shall be provided as open
space, with a minimum 10 percent gross area as usable open space. Therefore, the total
open space required for this plat is 142,753 square feet (15 percent of the 21.85-acre
parcel). The Applicant proposes a total of 306,625 square feet of open space with 27,072
qualifying as useable open space. The proposed 27,072 usable open space does not meet
the minimum required amount of 95,168 square feet, or 10 percent useable. The Applicant
has requested that the remaining 68,096 square feet of usable open space, or 7.16 percent,
be provided as a fee-in-lieu of open space. The Parks Director has approved the fee-in-
lieu of onsite open space that will be assessed and due at final plat approval.
• Sewer: The Applicant proposes to serve the proposed plat by a public sewer system
managed by the Lakehaven Water & Sewer District. A May 8, 2019, Certificate of Sewer
Availability (Exhibit 30) indicates the district’s capacity to serve the proposed
development through a Developer Extension Agreement (DEA) between the Applicant
and the district.
• Water: The Applicant proposes to serve the subdivision with a public water supply and
distribution system managed by the Lakehaven Water & Sewer District. The May 8,
2019, Water Availability Letter (Exhibit 31) establishes that Lakehaven has capacity to
serve the proposed development through a Developer Extension Agreement (DEA).
Several neighbors were concerned that the proposal would lower their water pressure,
which they stated is already too low. The development engineering supervisor of the
Lakehaven Sewer and Water District stated that the proposed development will have no
impact on surrounding water pressure. See Ex. 13l. In the absence of any expert
testimony to the contrary, Lakehaven’s engineering testimony on this issue is taken as a
verity.
Preliminary Plat and Buffer Averaging - 13
• Schools. Wildwood Elementary, Sacajawea Middle School, and Federal Way High
School will serve the proposed subdivision. The Applicant provided a school access
analysis with the preliminary plat application (Exhibit 29). A copy of the analysis was
forwarded to Federal Way Public Schools by the city. All elementary and middle school
students from this development will receive bus transportation to and from school, as
these schools are over one mile from the subject site. According to the testimony of the
Applicant’s engineer, the bus stops will be located within the plat. Since all plat streets
will have sidewalks, the elementary and middle school students will have safe walking
conditions to and from school.
Students attending Federal Way High School are within walking distance as noted in Ex.
29. Students walking to the high school will have sidewalk and paved shoulder for the
entire distance Sidewalks will be required along all internal roads and project frontage
on 20th and 304th. The remaining road from project frontage on 304th to SR 99 will have a
paved shoulder. The remaining distance from 304th and SR 99 to the high school has
sidewalks.
School service areas are reviewed annually and may be adjusted to accommodate
enrollment growth and new development. Federal Way Public Schools has indicated
school impact fees, as authorized by city ordinance, provide mitigation for the students of
this development and could add to district facilities. Some neighbors stated that the
schools serving the site do not have adequate funds for needed infrastructure. The City
Council has determined that the impact fees authorized for school service are sufficient
and that is the controlling standard used to judge adequacy of school facilities.
• Police and Fire Protection – South King Fire and Rescue and the Federal Way Police
Department currently provide services to the site. The Fire Department reviewed the
project for compliance with requirements for emergency access, hydrant locations, and
fire flow. South King Fire & Rescue requires two fire hydrants be provided for this
project in approved locations. Hydrant spacing along access roads and locations will be
approved by the Fire Marshal’s Office.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner: The requested preliminary plat and buffer averaging requests
have been consolidated into one review process where the examiner is authorized to hold a hearing on
the applications and issue a final decision. Chapter 18.35.010 FWRC authorizes the Examiner to
conduct a hearing and make a final decision on preliminary plat applications. FWRC 19.145.440 (5)
classifies wetland buffer reduction requests as Process III applications, which provides the Community
Development Director with the authority to make a final decision subject to appeal to the examiner.
FWRC 19.15.060 authorizes consolidation of multiple applications into the highest review process. The
highest review process is the preliminary plat process and the two applications have been consolidated
into that review process.
Substantive:
Preliminary Plat and Buffer Averaging - 14
2. Zoning Designation: Multi-Family Residential (RM1800), Single Family Residential (RS5.0) &
(RS7.2).
3. Review Criteria and Application. FWRC 18.35.170(3) governs the review criteria for preliminary
plat applications and FWRC 19.145.440(5) for buffer averaging. Since wetland buffer averaging requests
are usually addressed administratively and there is no error in the findings or conclusions adopted by
staff in in the staff report, the findings and conclusions of Section IVD of the staff report are adopted by
reference. All applicable permit review criteria for preliminary plat review are quoted in bold italics
below and applied to the application under corresponding Conclusions of Law.
Substantive:
FWCC 18.35.170(3): Decisional Criteria. A Hearing Examiner shall use the following criteria in
reviewing the preliminary plat and may recommend approval of the plat to the City Council if:
(a) It is consistent with the comprehensive plan;
4. The criterion is met. The application is subject to the adopted 2015 Federal Way Comprehensive
Plan (FWCP), which designates the property as Multi-Family and Single Family, High Density. The
proposed single-family land use and density is consistent with the underlying comprehensive plan
designations.
FWCC 18.35.170(3)(b): It is consistent with all applicable provisions of the title, including those
adopted by reference from the comprehensive plan:
5. The criterion is met. The city’s Community Development Review Committee (CDRC) has
reviewed the preliminary proposal and found its preliminary design to be in compliance with the
applicable requirements of Title 18 if the conditions adopted by this recommendation are implemented.
More detailed review will occur for final plat and building permit approval. Development of the site in
accordance with these requirements and the recommended conditions of approval will ensure compliance
with all applicable codes, policies, and regulations. One exception to this conclusion is retaining wall
height. As testified by staff, some of the retaining walls will exce ed the six-foot maximum height
authorized by FWRC 19.120.120. A condition of approval requires that the retaining wall conform to
the required maximum height or that the Applicant acquire approval of a height modification pursuant to
FWRC 19.120.050.
FWCC (18.35.170(3)(c): It is consistent with public health, safety, and welfare.
6. The criterion is met. The proposal provides for in-fill development as encouraged by the Growth
Management Act while also creating no significant adverse impacts and being fully served by adequate
and appropriate infrastructure as determined in Findings of Fact 5 and 6. Under these circumstances the
proposal is consistent with the public health, safety and welfare.
FWCC 18.35.170(3) (d): It is consistent with the criteria listed in FWRC 18.05.020; and
Preliminary Plat and Buffer Averaging - 15
7. The criterion is met. FWRC 18.05.020, the purpose clause for the City’s subdivision
regulations, identifies ten purposes, including establishing appropriate infrastructure, protecting
environmentally sensitive areas and promoting public health, safety and welfare. All of these objectives
are met for the reasons identified in Findings of Fact No. 5 and 6 and also due to the proposal’s
compliance with all applicable development standards as determined by the city’s Community
Development Review Committee (CDRC).
FWCC 18.35.170(3) (e): It is consistent with the development standards listed in Chapter 18.55 FWRC,
and FWRC 18.60.030 through 18.60.120.
8. The criterion is met. The CDRC has reviewed the preliminary proposal and found it to be in
compliance with all applicable codes, policies, and regulations if the conditions adopted by this
recommendation are implemented. The primary focus of these development standards is adequate and
appropriate provision of infrastructure, which as outlined in Finding of Fact No. 6 has been met for the
proposal. These regulations also focus upon compliance with zoning code standards that address lot
size, density and open space. Compliance with these zoning code standards is addressed in detail in
Section VI of the staff report.
DECISION
The preliminary plat and wetland buffer averaging request as detailed in Finding of Fact No. 3 and
depicted in Ex. 3 are approved subject to the following conditions
1. Prior to the city’s approval of engineering plans, the Applicant shall provide a signed agreement from
Lakehaven stating that a 45-foot strip along the north property line of parcel 042104 9168 will be
dedicated to the City of Federal Way for right-of-way purposes.
2. Prior to final plat approval, a statutory warranty deed for the 45-foot strip along the north property
line of parcel 042104 9168 shall be prepared and signed to be recorded along with the final plat.
3. As part of engineering review, the applicant must submit a replanting plan for approval for the
graded area adjacent to the proposed retaining wall to be composed of native shrubs and trees to help
preserve the functionality of the remaining intact wetland buffer. The replanting shall be completed
prior to final plat approval or subject to performance security as authorized by City regulations. The
graded area next to the retaining wall must also be stabilized as directed by City staff prior to final
plat approval.
4. The final plat drawing shall dedicate all usable and buffer open spaces in individual open space tracts
to be owned in common and maintained by property owners of the proposed subdivision, and shall
prohibit removal or disturbance of vegetation and landscaping within the tracts, except as necessary
for maintenance or replacement of existing plantings and as approved by the city. Additional
vegetation may be located in open space tracts to meet conditions as approved by the city. A note
shall be included on the final plat map that the open space tracts shall not be further subdivided; may
not be developed with any buildings or other structures, except as may be approved by the city for
recreational purposes only for the benefit of the homeowners; and may not be used for financial gain.
Preliminary Plat and Buffer Averaging - 16
5. The final plat drawing shall dedicate all conservation and constrained open spaces in individual open
space tracts to be owned in common and maintained by property owners of the proposed subdivision,
and shall prohibit removal or disturbance of vegetation and landscaping within the tracts, unless
otherwise approved by the city because the vegetation is dead, dying, dangerous, or other valid
reason. Additional vegetation may be located in open space tracts to meet conditions as approved by
the city. A note shall be included on the final plat map that the open space tracts shall not be further
subdivided; may not be developed with any buildings or other structures; and may not be used for
financial gain.
6. Prior to recording, the Applicant shall provide the city’s Parks Department a fee-in-lieu payment for
open space in the amount of 7.16 percent of the Ex. 23 CRBE appraised value of the subject
property, and provide a voluntary letter authorizing the city to use the open space fee-in-lieu in any
of the Parks Planning Areas of the city per FWRC 18.55.060(2).
7. The Applicant is required to pay a transportation impact fee (TIF) for each lot. The fee will be
assessed and collected from the Applicant when the building permit is issued, using the fee schedule
then in effect.
8. The Applicant is required to pay a school impact fee for each lot. The school impact fee is due at the
time of the building permit issuance for the new dwelling units. This fee amount is subject to change
as determined annually by the Federal Way School District and the City of Federal Way.
9. The Applicant shall bring all proposed retaining wall heights into conformance with FWRC
19.120.120 or acquire a modification to the required heights as authorized by FWRC 19.120.050.
10. The proposal shall conform to the recommendations of the geotechnical report, Ex. 26.
DATED this 29th day of October 20201.
Hearing Examiner for Federal Way
1 The signature date was revised on November 2, 2020 from October 24, 2019 to October 29, 2020. On November 3, 2020 a
few minor corrections were made to reflect corrections to the staff report made by staff during the hear ing: (1) Condition of
approval No. 3 was revised to require replanting to be done prior to final plat approval as opposed to prior to engineering
review; (2) Condition No. 6 was revised to base the park impact fee on the Ex. 23 assessed value of the project as opposed to
its assessed value; (3) references to a 40 foot dedication from Lakehaven throughout the Decision have been changed to 45
feet; and (5) minor modifications were made to the required cross-section for 304th street identified in Finding of Fact No. 6,
most notably the planter strip requirement has been eliminated and the sidewalk w idth was increased from five feet to eight
feet.
Preliminary Plat and Buffer Averaging - 17
RIGHT OF APPEAL
This decision may be appealed to superior court within 21 days of issuance as governed by the Land Use
Petition Act, Chapter 36.70C RCW.
CHANGE IN VALUATION
Notice is given pursuant to RCW 36.70B.130 that property owners who are affected by this decision may
request a change in valuation for property tax purposes notwithstanding any program of revaluation.
Preliminary Plat, Rezone, Wetland
Buffer Reduction Recommendation p. 1 Findings, Conclusions and Recommendation
