01-102996-00CITY OF/'jr.-
CITY HALL
33530 1 st Way South
PO Box 9718
August 2, 2001
(253) 661-4000
Federal Way, WA 98063-9718
Mr. Jay Gorham F 1 L
1939 South 375t' Street
Federal Way, WA 98003
Re: File No. 01-102996-000-00-AD; BUILDING FEASIBILITY ASSESSMENT
Tract C, Plat of Village Green No. 1
Dear Mr. Gorham:
This letter is in response to your request for a building feasibility assessment regarding Tract C,
Plat of Village Green Number 1. In December of 1997, the City of Federal Way received an
identical inquiry for the same tract. For your review, I have enclosed the City's response to the
previous inquiry that will provide you with a building feasibility assessment of Tract C, Plat of
Village Green Number 1.
If you have any questions regarding this letter or enclosure, please contact me at 253-661-4082
or rox.burhans ei.federal-wa .wa.us.
Sincerely,
Rox Burhans
Associate Planner
enc: December 9, 1997, Letter Regarding Tract C, Plat of Village Green No. 1
Doc. LD. 15792
JCITYOFr�
fq 000�33530 1 ST WAY SOUTH
December 9, 1997
Ray and Kathleen Erickson
3700 Codiss Avenue North
Seattle WA 98103
(253) 661-4000
FEDERAL WAY, WA 98003-6210
Re: Tract `C', plat of Village Green; Vol. 82 of Plats, pages 4-5, King County, WA
Dear Mr and Ms Erickson:
Please accept my apologies for the delay in getting back to you in response to your
question concerning the "buildability" of Tract C of the above -referenced- subdivision. In order
to determine the City's position, it was necessary to delve into the records of Kid; County, which
took longer than we had hoped, and review the matter with the City's legal department.
Having reviewed the plat and the records available form King County, the City has
determined that Tract C is not a buildable lot but is reserved under the terms of the recorded
subdivision as open space / greenbelt. The reasons for this conclusion are explained below.
As you probably know, the preliminary plat of Village Green was approved by the King
County Planning Commission on September 13, 1966. The four conditions of approval were that
the final plat comply with Resolution 11048 (subdivision regulations); that all lots meet the
minimum requirements of the RS 7200 lot size for SR areas; that only division 1 was approved at
that time; and that the three areas labeled Tract `A' were to be "held in undivided ownership of all
lots within the plat." The requirement that the three `A' tracts be held in undivided ownership of
all lots within the plat arose out of Section II.A4 of Resolution 11048, which provided that "If
required by the County Planning Commission, all plats must provide by dedication, areas for park,
playground, or open public spaces to the extent determined as required on the basis of density of
population. It also arose out of Section II.B.10.a, which required the Planning Commission to
"specify to the extent required, the allocation of playfields, parks and other open public spaces
that may be essential to a proper development of the areas or neighborhood." The Planning
Commission apparently imposed the requirement for open space because the plat of Village Green
was developed under the terms of the federal Fair Housing Administration regulations. See Quit
Claim Deed dated November 24, 1967. According to the subdivision applicant, the FHA
regulations required that the plat be developed with smaller lots, and therefore at a higher density
than he (the developer) would have otherwise proposed, given the zoning requirements at the
time. The higher density apparently prompted the Planning Commission to exercise its authority
under Section II.A.4 (which specifically refers to density) and Section II.B.10.a.
Between preliminary approval and final approval on May 1, 1967, the three areas were
given separate letter designations, with your property being designated Tract `C', and the plat
received final approval on May 1, 1967. Under the terms of the final plat, Tract C was dedicated
to the Village Green Homeowners Association, Inc., and was made subject to a greenbelt
easement reserved over it and over the rear of the lots within the plat.
In addition, a Declaration of Covenants, Conditions and Restrictions ("CC&Rs") was
recorded against all property within the plat, in King County Auditor's File No. 6172991. The
CC&Rs define Tracts A, B, and C and the Greenbelt Easement as "Common Properties"and grant
each property owner in the subdivision "a right and easement of enjoyment in and to the common
properties and such easement shall be appurtenant to and shall pass with the title to, or contract
purchaser's interest in, every assessed lot ...." CC&Rs at 1, Article L Section 5 (definition of
"Common Properties"); at 2-3, Article VI, Section 1. This easement was made subject to number
of other rights, including the right of the Homeowner's Association to limit the number of guests
using the Common Properties, to construct recreational facilities thereon and to charge admission
for their use. Id at 3, Article VI, Section 1 (a) - (g).
Although unnecessary in light of the dedication and reservation of easement in the Plat
itself, Tract C and the greenbelt easements were also separately deeded to the Homeowners
Association on November 24, 1967. The Association eventually defaultedYn tax payments, even
though the tract had an assessed value of only $6,000, with an annual tax dAbligation of $91.32.
You subsequently purchased Tract C through tax foreclosure.
Based on the plat itsel& Tract `C' is not a building lot, but is instead common, open or
recreational space for the residents of the plat. Its octopus -like shape, including several narrow,
20-foot-wide portions, is unlike the configuration of any other lot in the plat and appears to be a
common area with narrow strips providing access to it. Tract C is also designated as a "tract" (as
opposed to a "lot") and has a letter rather than number, was designated into common ownership,
and is subject to a greenbelt easement. Under Washington law, the city must consider all of these
facts which confirm that the Plat of Village Green No. 1 limits the use of Tract C to common,
open space. See, e.g., Albee v. Yarrow Point, 74 Wn.2d 453, 445 P.2d 340 (1968) (facts
surrounding dedication of road held to demonstrate intent of plattors to extend dedicated road to
provide access to lake for upland owners); Nelson v. Pacific County, 36 Wn. App. 17, 20-22, 671
P.2d 785 (Div. II 1983) (intent to dedicate strip of land as road inferred from notations on plat
and from location of strip between platted property and Willapa Bay). The assessed value of the
lot at the time of your purchase, $6,000, confirms this conclusion. That value was apparently
based on Tract C's reservation for open space'use; a similarly -sized (1.5 acre) buildable lot in the
same area would be expected to be valued at several times this amount.
The conclusion that the plat limited the use of Tract "C" to open space/greenbelt use is
also firmly supported by the CC&Rs. They expressly provide that Tract C is part of the
"Common Properties" over which all property owners in the plat have an easement for
recreational use and enjoyment. In addition, the CC&Rs expressly state that a "lot" is "any plot
of land shown upon any recorded subdivision map of the properties with the i n f h
cminQn properties." CC&Rs at 1, Article I, Section 6 (Definition of "Lot") (emphasis
added).
This conclusion is also supported by the zoning and platting requirements in effect at the
time, which govern how the plat's restrictions may be interpreted. Under King County Resolution
25789, the minimum lot size in the SR (suburban residential) areas was 5 acres, unless a
subdivision was approved. 7,200 square foot lots were allowed in subdivisions, but only when
public sewers, water, paved streets and underground storm water drainage were also provided.
Under Platting Resolution No. 11048, "lot" was defined as "a portion of a subdivision, or other
parcel of land ' l n ." Under Section
H.B.9, Each "lot" was required to have a minimum lot width of 60 feet, and have its side lines
"approximately at right angles or radial to the street line." Tract `C' Is not a "lot" but a `tract," has a minimum lot width of20 feet, and its "side" lines are not at right angles but instead traverse``_-
in several directions. In addition, Under Section IV.A.3.c, a platter was required to show the .
"layout, numbers and dimensions of I=" along with "tea of land intended to be dedicated or
temporarily reserved for public use or �et aside fir use of pmpe yawners in the subdivision."
(Emphasis added). As noted above, Tract C does not have a number designation because it is not
a lot; instead, it is a parcel set aside for use of property owners in the subdivisioni.
When this is taken into account, it is clear that Tract `C' was approved not as a building
lot but as open space/greenbelt only. Under Washington law recorded plats ar restrictive
covenants which limit the use of property to green belt or open space use are not extinguished by
transfer of property via a tax foreclosure deed. City of Olympia v. Palzer, 107 Wn.2d 225, 230-
31, 728 P.2d 135 (1986)(restrictive covenant limiting use of four tracts to greenbelt use for
benefit of PUD lot owners survived sale of tract through tax foreclosure); cf. Lake Arrowhead
Community Club, Inc. v. Looney, 112 Wn.2d 288, 770 P.2d 1046 (1989) (covenant requiring
payment of assessments to maintain community beach, pavilion, and roads survived tax
foreclosure sale). We must therefore conclude that Tract `C' it is not a building lot.
Application of the current, Federal Way City Code ("FWCC") also supports the
conclusion that Tract C is not a buildable lot. For example, FWCC 20-1 defines a "tract" as
follows:
A fractional part of subdivided lands having fixed boundaries, which is dQd ira,t!d o
manmant or plat Eutrictionbr puEposfa of ingress, egress, utility
access, men Space, drainage or other purpose necessary to the public welfare.
(Emphasis added). Further, under FWCC 20-155(b), all residential subdivisions are required to
provide open space in the amount of 15 percent of the gross land area of the subdivision site.
Village Green No. 1, as platted, has approximately 11.2% of open space (including Tracts A, B,
and C), and is thus nonconforming with respect to open space. Were the City to determine that
these tracts were buildable lots, the nonconformance would be increased, contrary to the
command of FWCC 22-341 ("no nonconformance may, in any way, be enlarged, expanded,
increased ... or in any other way made greater....").
You indicated that you believe that the plat has been invalidated by the fencing of the
individual lots, and presumably by the actions of the homeowners association in allowing the tract
to pass out of common ownership. The City is not aware of any applicable law or court case
which would support this contention. There is no provision in state law for the automatic
invalidation of an approved plat by violation of the conditions of approval. RCW 58.17.320
provides that the county prosecutor or the attorney general may enforce the conditions of
approval by appropriate court action, but does not authorize invalidation of a plat. RCW
58.17.212 and FWCC 20-140 - 20-150 govern the procedures (including a public hearing) for
altering an approved plat.
In light of the facts and law detailed above, the City must conclude that Tract C is not a
buildable lot. If you are aware of any facts or legal authority to the contrary, please let us know.
In the meantime, please also be aware that the FWCC Section 22-093(9) prohibits the removal of
any tree without a valid development permit, which can be granted only for removal of diseased,
dead or dangerous -trees.
If you have any questions concerning the foregoing, please call.
Sincerely,
GregMrt7nint
,e, Director, AICP
DepaCommunityDevelopment Services
cc: Ed
Swan, Neighborhood Development Specialist
oSterbank, Assistant City Attorney
Greg Fewins, Principal Planner
kAIetter\vilgmmdoc
07/30/01 08:45 FAX 206 296 2875
KING CO.DIST CRT
PROB
0 002
O I-
I D S
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(,,- oo -A
D
July 30, 2001
City of Federal Way (Planning Depatl3nent)
Attn: Mr. Greg Fewins
Re: Parcel #8944300850
Dear Mr. la ewins,
M
The purpose of this letter is to request the City of Federal Way research building feasibility with regards to the
above noted lot (see attached)_ I also need to know if I could access the lot from SW 3320' Ct_
Thank you for your assistance in this matter. If you have any questions, please call me at (253) 874-2420 or, (206)
205-5373 ork).
sine cl
Ja.y . Go ham
19' J So_ 375h St.
F rral Way, WA 99003
( 3)874-2420
(206) 205-5373
COMMUNITY DEVEi OPMENii DEP00W
JUL 3 0 2001