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BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
Administrative Appeal of Code
Interpretation No. 16-02. FINAL DECISION
SUMMARY
The appeal is denied. The Appellant appeals City of Federal Way Code Interpretation No. 16-02.
The Appellant requested the interpretation to vest a binding site plan application associated with the
former Weyerhauser corporate headquarters generally located at the northeast corner of the
intersection of Interstate 5 and SR 18. The Appellant sought vesting through two separate means: (1)
application of the City's vesting ordinance to its binding site plan application; and (2) vesting of its
proposed development through state law by a concurrently filed short subdivision application. These
two vesting strategies raised two separate code interpretation issues, namely: (1) whether binding site
plans are subject to the City's vesting ordinance, FWRC 19.15.045(4); and (2) whether binding site
plan review is the exclusive means of review for a proposed division of property classified for
commercial, business, office or industrial development. The first issue is answered in the negative,
the second in the affirmative.
On the first issue, whether binding site plans are subject to the City's vesting ordinance, it is
reasonably clear that binding site plan review is the exclusive means of reviewing the Appellant's
proposed division, largely due to very compelling legislative history. It is uncontested that the City's
vesting ordinance only applies to Process I, II, III and IV permit applications, the review procedures
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of which are governed by Title 19 FWRC. The Appellant argues that a binding site plan application
is a Process IV application, the City argues that a binding site plan application doesn't qualify as a
Process 1, II, III or IV application. The City's position is strongly supported by the plain meaning of
applicable FWRC code provisions and their legislative history. Nothing in the FWRC designates a
binding site plan as a Process I -IV application, even though numerous other permits are expressly
classified as a Process 1, II, III or IV applications. The FWRC has a self-contained binding site plan
review process in Title 18 FWRC that is separate from the review processes specified for Process I -
IV applications in Title 19 FWRC. At least one FWRC code provision designates a binding site plan
application as separate from Process I -IV review. Finally, the legislative history of the ordinance
adopting the binding site plan review process clearly identifies binding site plan review as separate
from Process I -IV review.
The second issue, whether the Appellant is barred from filing a short subdivision application to vest,
is more difficult to resolve. Application of state subdivision laws leads to the conclusion that the
City's binding site plan review is exclusive of subdivision review and, therefore, the Appellant is
barred from submitting a concurrent short subdivision application. Nothing in the FWRC expressly
prohibits the filing of both a subdivision application and a binding site plan application for a proposed
division of land. Since the City's subdivision regulations allow for the filing of a short subdivision
application for any division of land into nine or fewer lots, the Appellant argues that the plain meaning
of the City's subdivision regulations dictate that it be allowed to file a subdivision application
concurrently with its binding site plan application. However, case law requires that the plain meaning
of a regulation must be derived from construing the regulatory context as a whole. The consequences
of its proffered interpretations are also relevant. Applying these principles, it is reasonably debatable
whether the FWRC authorizes concurrent binding site plan and short subdivision applications and the
FWRC must be considered ambiguous on this point. As an ambiguous statute, it is therefore
appropriate to interpret the City's regulations in a manner that is consistent with state law. RCW
58.17.035 requires binding site plan review to be an alternative to subdivision review. Dictionary
definitions of alternative establish that an alternative is one choice to be taken from two or more
options. Since City regulations mandate binding site plan review for the Appellant, the City has
made the choice for which review process applies and this forecloses the option of short subdivision
review.
EXHIBITS
See March 10, 2017 Stipulation and Joint Witness and Exhibit List, incorporated by this reference as
if set forth in full.
FINDINGS OF FACT
Appellant. The Appellant is Federal Way Campus LLC
2. Subiect Property. This appeal involves the vested rights of the former Weyerhauser corporate
offices, generally located at the northeast corner of the intersection of Interstate 5 and SR 18. The
Appellant acquired ownership of the property in 2016. The property is subject to a pre -annexation
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zoning agreement dated August 23, 1994. The specific type of uses allowed for the property are not
identified in the record. However, it is uncontested by the parties that the property is classified as
commercial, business, office or industrial development as contemplated by FWRC 18.20.010.
3. Permit APRlications. On October 13, 2016, the Appellant filed a binding site plan application
and a short subdivision application for the division of the subject ,property. The City rejected the short
subdivision application, stating that the binding site plan application was the exclusive method for
dividing properties classified as commercial, business, office or industrial development.
4. Code Interpretation. On November 14, 2016, the Appellant submitted a request for a formal code
interpretation regarding the rejection of its short plat application and the vested rights of its binding site
plan application. The City issued the requested interpretation on December 12, 2016 as Department of
Community Development Interpretation 16-02. The Appellant filed an appeal of the code interpretation
on December 21, 2016.
5. Issues Presented. The issues presented in the Appellant's appeal of Interpretation 16-02 are
summarized as follows:
(a) Whether binding site plans are subject to the City's vesting ordinance, FWRC
19.15.045(4); and
(b) Whether binding site plan review is the exclusive means of review for a proposed
division of property classified for commercial, business, office or industrial
development.
6. Appeal Hearing. The examiner held a hearing on the subject appeal on March 17, 2017 at the
City of Federal Way City Council meeting chambers.
CONCLUSIONS OF LAW
1. Authority. FWRC 19.50.060(3) designates a code interpretation as a Process IV review. Chapter
19.70 FWRC provides that the hearing examiner shall hold a hearing and issue a final decision in a
Process IV review, subject to appeal to superior court.
2. Burden of Proof FWRC 19.70.120 requires that the hearing examiner grant "great deference"
to the City's interpretation of its development regulations. FWRC 19.70.120 further provides that the
Appellant bears the burden of demonstrating, by a preponderance of evidence, that the interpretation is
incorrect.
Appeal Issue No. 1
Whether binding site plans are subject to the City's vesting ordinance, FWRC 19.15.045(4)
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3. Appeal Issue No. 1 Denied. Appeal Issue No. 1 is denied. Binding site plan applications do not
vest under the City's vested rights ordinance, FWRC 19.15.045(4), because binding site plans do not
qualify as Process I, II, III or IV applications.
A. FWRC Doesn't Designate Bindings Site Plan Application as Process I -IV. FWRC
19.15.045(4) provides that Process I, II, III and IV permit applications vest to the zoning code
and other land use controls in effect at the time a complete application is filed. The plain
meaning of the City's development standards, their organization and the legislative history
of the City's binding site plan and subdivision regulations clearly establish that a binding site
plan application is not a Process I, II, III or IV application. Consequently, FWRC
19.15.045(4) does not confer any vested rights upon the Appellant's binding site plan
application.
As to the plain meaning, no part of the FWRC designates a binding site plan as a Process I,
II, III or IV application. The FWRC suggests that a permit qualifies as a Process 1, II, III or
IV permit through express code designation. See FWRCW 19.55.010 (Process I), FWRC
19.60.010 (Process II), FWRC 19.65.010 (Process III) and FWRC 19.70.010 (Process IV).
As noted in Footnote No. 3 to the City's Pre -Hearing Brief, the FWRC expressly designates
numerous permits as subject to specific process types, e.g. clearing/grading permits, home.
occupation permits and storage shed permits are Process III applications; variances,
manufactured home park permits and appeals of interpretations are Process IV. The examiner
also found numerous examples of expressly designated Process II permits in the FWRC. No
such express designation is made for binding site plan applications.
Another compelling point regarding the plain meaning of zoning code provisions is the use
table in FWRC 19.200.010. Under the column for "required review process" for cottage
housing development applications, the chart notes "None if processed as a formal short
subdivision, otherwise Process IV." The language clearly shows a legislative understanding
that a subdivision doesn't qualify as a Process I -IV application. Binding site plans, like
subdivisions, don't' have any express Process I -IV designation and are separately addressed
in Title 18 with their own review procedures.
As to organization, it is significant that Process I -IV applications have detailed review
procedures specified in Chapter 19.15 FWRC while binding site plans have their own review
procedures specified in Chapter 18.10 FWRC. There would be no need for the Chapter 18.10
review procedures if Chapter 19.15 FWRC applied to binding site plan applications.
Ordinances must be construed in a manner that all the language used is given effect, with no
portion rendered meaningless or superfluous. See Rapid Settlements, Ltd. V. Symetra Life Ins.
Co., 134 Wn. App. 329, 332 (2006). To retain meaning for the separate review procedures
dictated by Chapter 18.10 FWRC, binding site plan review must be construed as separate and
independent from the Process I -IV review of Chapter 19.15 FWRC.
Even if Titles 18 and 19 FWRC were regarded as ambiguous on whether a binding site plan
is a Process I -IV application, the legislative history clearly establishes that a binding site plan
is not a Process I -IV application. Federal Way Ordinance No. 90-41, which adopted the City's
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first subdivision regulations in 1990, classified binding site plan and subdivision applications
as Process III and Process I applications. See Ex. 6. In 1997, these process designations were
eliminated by Federal Way Ordinance No. 97-291 and no new Process I -IV designation was
re -assigned. See Ex. 7. The omission from Process I -IV designation was deliberate as noted
in the Planning Commission recommendation for ordinance No. 97-291, which provided that
most land use applications were designated s Process I -IV, "with the exception of land
divisions (preliminary plats, short plats, binding site plans, boundary line adjustments, and
lot line eliminations) which will be treated entirely within Chapter 20 —Subdivisions)." See
Ex. 8.
B. Title 19 Exemptions Don't Qualify Binding Site Plan Applications as Process I -IV. As
partially touched upon in prior discussion, Process I -IV review procedures are contained
within Title 19 FWRC (specifically Chapter 19.15 FWRC) and permits authorized under the
Washington's subdivision statutes, including binding site plan review, are contained in Title
18 FWRC. The Appellants argue that since subdivision permits are identified in the
exemption section of Chapter 19.15 FWRC, this establishes they are Process I -IV permits
regulated by Chapter 19.15 FWRC. A close look at these exemptions does not support this
conclusion. The first set of exemptions relied upon by the Appellant is FWRC 19.15.010(1),
which provides that a specified list of City permits are exempt "...from RCW 36.70B.060
through 36.70B.090 and 36.70B.110 through 36.70B.130.." Preliminary plats are listed as
exempt under FWRC 19.15.010(1)(k).
There area couple reasons why the inclusion of preliminary plats in FWRC 19.15.010(1) does
not mean they are Process I -IV permits. First, as previously noted, FWRC 19.15.010(1) does
not identify its listed permits as exempt from Process I -IV permitting procedures, but rather
from the permitting procedures of Chapter 36.70B RCW. Second, related to the first reason,
the exemptions are done under the mandates of Chapter 36.7013 RCW to exempt permits from
Chapter 36.70B RCW requirements. The statutes in RCW 36.7013 RCW are part of the
Regulatory Reform Act, Chapter 36.7013 RCW, which imposes the permit review procedures
that are integrated into the Chapter 19.15 FWRC Process I -IV review procedures and the Title
18 FWRC subdivision/binding site plan review procedures. The exemptions of FWRC
19.15.010(1) implements the exemption authority granted by RCW 36.7013.140, which
provides that local government may exempt designated permits ".... from RCW 36.70B.060
through 36.70B.090 and 36.74B.110 through 36.70B.130..." by ordinance, which is exactly
what the City has elected to do by adoption of FWRC 19.15.010(1). In sum, in including'
preliminary plats in FWRC 19.15.010(1), the City was simply consolidating its compliance,
with RCW 36.7013.140 into one code section, instead of doing so in two different code sections
in Title 18 and Title 19 FWRC.
The second Title 19 exemption provision relied upon by the Appellant is FWRC 19.15.020,
which provides a list of permits exempt from all review requirements for Process I -IV permits.
Unlike FWRC 19.15.010(1), FWRC 19.15.020 exempts itself directly from Process I -IV
permits as opposed to Chapter 36.7013 requirements. The Appellant asserts, therefore, that
any permit not listed as exempt from Process I -IV permit procedures are subject to it. This
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argument has merit. Under the statutory construction rule of expressio unius est exclusio
alterius, where a statute specifically lists the things upon which it operates, there is a
presumption that the legislating body intended all omissions. Blue Diamond Group, Inc. v.
KB Seattle, Inc., 163 Wn. App. 449 (2011). In short, the presumption must be that since
FWRC 19.15.020 doesn't list subdivision permits as exempt from Process I -IV procedures,
the City Council must not have intended that they be exempt.
The strong legislative history supporting the City's position is enough by itself to override the
presumption of expressio unius est exclusio alterius. The context in which FWRC 19.15.020
was adopted provides a plausible explanation as to why subdivision permits aren't included
in the FWRC 19.15.020 exempt list. Just as FWRC 19.15.010(1) was adopted by the City to
take advantage of the Chapter 36.70B RCW exemptions authorized RCW 36.70B.140(1),
FWRC 19.15.020 was adopted by the City to take advantage of the exemptions authorized by
RCW 36.70B.140(2). RCW 36.70B.140(2) authorizes an exemption from a broader range of
Chapter 36.70B RCW statutes than RCW 36.70B.140(1) (used for the exemptions adopted by
FWRC 19.15.020 for permits involving construction that is minor enough to be categorically
exempt from environmental review under Chapter 43.21C RCW. This is precisely what
FWRC 19.15.020 does by designating permits involving minor construction that is exempt
from environmental review. All permits identified in FWRC 19.15.020 are exempt from
environmental review. See Chapter 14.15 FWRC. FWRC 19.15.020 differs from FWRC
19.15.010(1) in that Title 18 permits are not identified in the exemption list to comply with
RCW 36.70B.140(2). Instead, permit applications which clearly qualify for RCW
36.70B.140(2) exemption simply aren't assigned any Chapter 36.70B permitting review
procedures in Title 18 FWRC. For example, lot line adjustments, which qualify for the RCW
36.70B.140(2) exemptions, takes advantage of this exemption via FWRC 18.15.020 which
dictates that lot line adjustment applications are reviewed administratively by public works
and that "no other review process under this title shall be required for lot line eliminations."
Beyond context is the fact that expressio unius est exclusio alterius also arguably applies to
the FWRC provisions that provide that permits that qualify as Process I -IV do so by express
code designation. Under expressio unius est exclusio alterius, this entails the ancillary
conclusion that permits that aren't expressly designated as Process I -IV don't qualify as
Process I -IV.
C. Final Conclusion. In conjunction with the strong legislative history supporting the City's
interpretation and the strong deference due the interpretation of the City's formal
interpretation, the context in which FWRC 19.15.020 was adopted establishes that it should
not be construed as qualifying binding site plan applications as Process I -IV applications.
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Appeal Issue No. 2
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Whether binding site plan review is the exclusive means of review for a proposed division
of property classified for commercial, business, office or industrial development.
4. Appeal Issue No. 2 Denied. Appeal'Issue No. 2 is denied. The FWRC is ambiguous as to whether
a binding site plan application is the exclusive means for review of a proposed division of land classified
for commercial, business, office or industrial development. That ambiguity is resolved by a state statute
that mandates that binding site plan review serve as an alternative to subdivision review. The term
alternative is construed to mean that amongst subdivision and binding site plan review, one must be
chosen over the other. If binding site plan review is mandated as in the Appellant's situation, the
opportunity for subdivision review is thereby foreclosed.
A. FWRC Construed as Mandating Binding Site Plan Review as Exclusive of Subdivision
Review. It is uncontested that FWRC 18.20.010 mandates that any nonexempt division of
the Applicant's property is subject to binding site plan review. FWRC 18.20.010 provides
that any division of land for sale or lease which is classified for commercial, business, office
or industrial development shall be required to obtain and approved binding site plan. The
Appellant does not contest that it must acquire binding site plan approval pursuant to FWRC
18.20.010 to divide its property.
The City and the Appellant disagree as to whether FWRC 18.20.010 precludes the concurrent
submission of a subdivision application for the same proposed division. The Appellant asserts
that the plain meaning of the Title 18 FWRC subdivision provisions support its position.)
There is nothing in Title 18 FWRC that prohibits such a concurrent application. Chapter 18.30
FWRC authorizes applications for short subdivisions. FWRC 18.05.010 defines a short
subdivision as the division of property into nine or fewer lots for sale, lease or transfer. )
Assuming that the Applicant intends to divide its property into nine or fewer lots (the details'
of the proposed division are unclear from the record), the Appellant is correct in its position
that nothing in Title 18 expressly prohibits it from applying for a short subdivision.
It is not correct, however, to posit that the plain meaning of Title 18 FWMC supports the
Appellant's interpretation in the absence of any express provisions to the contrary. Courts do
not limit themselves to such a literal application of ordinances, and instead take a broader look
to ascertain the legislature's intent in adopting an ordinance. The application of the plain
meaning rule in the construction of ordinances was well summarized in Udall v. T. D. Escrow
Services, Inc., 159 Wn.2d 903, 909 (2011).
A court's objective in construing a statute is to determine the legislature's intent.
If the statute's meaning is plain on its face, then the court must give effect to that
plain meaning as an expression of legislative intent. Plain meaning is discerned
from the ordinary meaning of the language at issue, the context of the statute in
which that provision is found, related provisions, and the statutory scheme as a
whole. If the statutory language remains susceptible to more than one reasonable
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interpretation, the statute is considered ambiguous, and the court may then
employ statutory construction tools, including legislative history, for assistance
in discerning legislative intent.
(internal citations and quotations omitted).
In addition to the factors outlined above in construing plain meaning, the courts also consider
relevant the consequences that would result from construing a particular statute in one way or
another. State v Kirwin, 166 Wn. App. 659, 666 (2012). In this situation, the review
procedures of Title 18 as a whole reveal no ascertainable benefit from authorizing concurrent
binding site plan and short subdivision review of the same proposed division of land. The
objectives and review procedures of both are largely the same. Authorizing a property owner
to apply for subdivision approval in addition to binding site plan approval would entail a
significant waste of permitting resources and also lead to potential conflicts in decision
making as noted in Interpretation No. 16-02. Ex. 5. There is nothing to be gained by
employing both review procedures concurrently. The Appellant has not identified any
purpose to allowing such duplicate review except as a means of vesting the proposed
development. As discussed further below, a property owner has the option of filing building
permit applications to vest their developments. If the City Council had wanted to make
vesting any easier for binding site plan applicants, it could have easily specified an alternative
vesting scheme explicitly as it did so for Process I -IV permits in FWRC 19.15.045(4).
Given that the duplicative and wasteful consequences of the Appellant's interpretation of Title
18 and the lack of any logical purpose for that position, it is concluded that Title 18 is
ambiguous as to whether binding site plan review is the exclusive means of review for
proposed divisions under FWRC 18.20.010. As previously noted from the Udall case, the
primary purpose of statutory construction is ascertaining legislative intent. As previously
noted, it is reasonable to conclude that the City Council intends its ordinances to be consistent
with state law. In this regard, RCW 58.17.035, the statute that authorizes ordinances providing
for binding site plan review, is pertinent. RCW 58.17.035 provides that a city, town or county
may adopt by ordinance procedures for the division of land via binding site plan review as an
alternative to the procedures required by Chapter 58.17 RCW for subdivision review. As
noted in the Appellant's Opening Brief, p. 12, "alternative" is not defined by the FWRC but
a Cambridge Dictionary definition is "offering a choice between two or more things." This
definition supports the City's position, in that a choice amongst options implies that the choice
is for one of the options, not both as advocated by the Appellant. Indeed, the Oxford
Dictionary defines "alternative" as "one of two or more available possibilities." (emphasis
added). In short, RCW 58.17.035 authorizes a choice of one or the other between binding site
' It is unclear from the case law whether enabling statutes such as RCW 58.17.060(l) are considered to be part of the
statutory context that is relevant to ascertaining the plain meaning of a statute, or whether it serves as an aid to
construction of an ambiguous statute. This decision takes the conservative route and applies RCW 58.17.060(1) as an
interpretive aid to ambiguous statutes. Of course, if it is properly applied as an aid to ascertaining plain meaning, the
interpretation regarding the exclusivity of binding site plan review under Title 18 would remain unchanged.
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plan and subdivision review for properties zoned for industrial or commercially zoned
property. FWRC 18.20.010 makes that choice by mandating binding site plan review for
commercially and industrially zoned properties. To be consistent with the "one or the other"
option given by RCW 58.17.035, FWRC 18.20.010 must be interpreted as mandating binding
site plan review as the exclusive form of review for ,proposed divisions of commercially and
industrially zoned properties.
B. Title 19 Exemptions Don't Qualify Binding Site Plan as Process I -IV. The Appellant's most
compelling point on the nonexclusive nature ofFWRC 18.20.010 is its argument that denying
it the opportunity to apply for subdivision review denies it the opportunity to avail itself of
the vested rights granted to it under the subdivision vesting statute, RCW 58.17.033. To
support its argument, the Appellant cites West Main Associates v. City of Bellevue, 106 Wn.2d
47 (1986) for the principle that cities cannot prevent an applicant from vesting via the filing
of a building permit by imposing several procedural obstacles before the permit can be filed.
Appellant's Opening Brief, p 12. West Main dealt with the right of permit applicants to vest
their applications under the common law with a complete building permit application. The
nature of the right was further elaborated in Erickson & Assoc. v. Seattle, 123 Wn.2d 864
(1994). In Erickson, the state supreme court declined to extend the common law vested rights
doctrine to master plan applications. One major reason for this decision was that the applicant
was free to vest his rights at any time with a building permit application. The court found
this to be significant because the applicant still had complete control over the date of vesting
by the timing of his building permit application. In this case, the Appellant has at no point
denied that they have the same ability as the Erickson applicant to vest at any time via a
complete building permit application4. 123 Wn.2d at 870. Further, since Erickson and West
Main the courts have abandoned the pursuit of creating common law vested rights for permit
applications and have instead delegated the definition of such rights to the state legislature.
See Potala Village Kirkland, LLC v. City of Kirkland, 183 Wn. App.191, 201 (2014), review
denied, 182 Wn.2d 1004 (2015). The Appellant identifies no state statute or legislative
history that suggests that the legislature intends to have binding site plan applicants have the
ability to vest their proposed divisions under RCW 58.17,035.
2 RCW 58.17.060(1) is arguably ambiguous on whether the City can make that choice in its development regulations
or whether that choice was intended to be left to the property owner. FWRC 18.20.010 unequivocally takes the choice
away from the property owner. That mandate cannot be removed by interpretation because FWRC is not ambiguous
on that point. The only way to eliminate the FWRC 18.20.010 mandate for binding site plan review of industrially
and commercially zoned properties is to invalidate the ordinance. The examiner has no jurisdiction to invalidate
ordinances.
3 This decision uses "commercially and industrially zoned properties" interchangeably with properties classified as
"commercial, business, office or industrial development." For purposes of this decision, there is no meaningful
difference between the two characterizations.
4 No prohibition on filing building permit applications for a site with multiple buildings is evidence in the FWRC. If
the Appellant finds any such provision, that would be a compelling argument for reconsideration. The issue would
still be subject to debate however even if the Appellant didn't have the opportunity to vest via building permit
application, due to statements in Potala that suggest that all vesting issues are now legislative.
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During the appeal hearing, Appellant's counsel argued that protecting vesting rights through
the ability to file building permit applications is not a sufficient substitute for the vesting
provided by RCW 58.17.035 because building permit applications would take too much time
and money to prepare for projects that early in the development process. That position is
antithetical to the reasons why the courts require complete building permit applications as a
condition of vesting in the first place. In the state's first vested rights permit decision, the
court relied upon the fact that the resource intensive endeavor of having to submit complete)
building permit applications to vest would avoid permit speculation. See Hull v. Hunt, 53
Wn.2d 125, 130 (1958). Ultimately, the Appellant in this case has the ability to secure its
vested rights with complete building permit applications at any time. That control should be
sufficient under the West Main and Erickson holdings and there is no state vesting statute that
dictates a different result.
C. Code Characterization of Binding Site Plan as Subdivision Doesn't Effect Exclusivity of
Review Process. On a final point, the Appellant also brings up the fact that the definition of
short plat includes the final drawing for binding site plans and also that the section title for
FWRC 18.20.010 is "[s/ubdivisions requiring binding site plan." The FWRC may very well
consider binding site plans to be one type of subdivision, but this definition doesn't detract
from the position that FWRC 18.20.010 makes binding site plan review the exclusive review
process for properties classified as commercial, business, office, or industrial development.
That interpretation is largely based upon the "one or the other" choice given by RCW
58.17.035 between a binding site plan and formal short or long subdivision review, which is
unaffected by whether a binding site plan is considered to qualify as a subdivision.
DECISION
The appeal is denied. Interpretation 16-02 is sustained.
ORDERED this 31 st day of March, 2017.
Hearing Examiner for Federal Way
RIGHT OF APPEAL
This decision may be appealed to superior court within 21 days of issuance as governed by the Land Use
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Petition Act, Chapter 36.70C RCW.
CHANGE IN VALUATION
Notice is given pursuant to RCW 36.7013.130 that property owners who are affected by this decision
may request a change in valuation for property tax purposes notwithstanding any program of.revaluation.
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u_F�
31919 11 Ave S, Suite 1011 Federal, Way, WA 98003 253.925.5565 1253.925.5750 (f)
Affidavit of Publication
Rudi Alcott, being first duly sworn on oath, deposes and says that he is the Publisher of The
Federal Way Mirror, a weekly newspaper. That said newspaper is published in the English
language continually as a weekly newspaper in Federal Way, King County, Washington, and is
now and during all of said time has been printed in an office maintained by the aforementioned
place of publication of said newspaper.
That the annexed is a true copy of a legal advertisement placed by
City of Federal Way - Community Development
as it was published in regular issues (and not in supplemental form) of said newspaper once
each week for a period of one consecutive week(s), commencing on the 16th day of December
2016, and ending on the 16th day of December 2016 both dates inclusive, and that such
newspaper was regularly distributed to its readers during all of said period.
That the full amount of the fee charged for the foregoing publication is the sum of 1$ 49.97,
which amount has been paid in full, or billed at the legal rate according to RCW 65.16.020.
Subscribed to and sworn before me this 12th day of January 2017.
Notary Public in and for the State of Washington,
Residing at Buckley
•�����A �A AIVD
• E (3
-•`�ytiF ��ys�oN ��A�fi��
0
NOTARY •2�
u, PUBLIC
�A o =
A
Federal way
NOTICE OF DEPARTMENT OF COMMUNITY
DEVELOPMENT INTERPRETATION #16-02
Citation of Code Provision
By fetter dated November 14. 2016, Jahn C.
MCCollough, Esq. of McCullough Hill Leary P5, on
behall of Federal Way Campus LLC {`Appilpnt"],
Way Revised Code uested a formal{"interpretation
regarding t egardingo the lowhe l
ing issues:
1. whether Process 1, II, ill, or IV appllcalions vast
developments identified In the Federal Way mning
Code and othst land use central ordinances in e1•
fact on the date the complete applications are. sub-
rnMed, and whether binding site P}ao and short
pia[ appliratlorrs vast such developments under
those processes.
2. Whether a short subdivision application (in adds
lion to a binding sits plan application) may be sub-
mitted, aCcepfed, and processed to segregate
properly that is caned for commercial, business,
attics, or indusldal development.
Summary Slatemant of Irrlerpmtatkon
Based upon the analysis set forth in the lfrferpreta-
don, the Director at Community Developmant
('0irector"] hereby Issues the following Interpmta-
bon in response to the Applicant's request:
2.1 pursuant to FWRC 19.15.0d5(4], a fully MCI-
proposalr I o r IV the
to hezo6g Cod S application s
d other kenduse
control ordinances in effect on the land at the time
the appllaatian has been submitted to the City;
however. applications for binding site plans and
short subdivisions are not designated by the City's
Code as use process epplirallons under PrnCess I.
Il, tit or IV. V"hef and to what extent applica•
lions for These categories of local land use approv
at bigger vested rights is governed oxcfuslvely by
slake law rather than by tho City's locale regulations.
2-2 A short subdivision applceation cannot he used
to segregate property roiled far commeMial, busi-
ness, affict or Industrial developmem under the
FWRC. Pursuant to FWRC 18.20.010, a binding
site p4n application is the mandalory and exlu-
slve means by which to segregate Properties Caned
for these use categories. The City' code does not
contemplate, much less expressly a¢fho ize, sep-
arate binding site plan and shalt subdl arrciau set
cations to be submined and processed
Iy for the same site.
Date of Interprotation
December 12, 2016
Availability of Official File
continued on next page
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 8th Avenue South
A�k Federal Way WA 98003
253-835-7000; Fax 253-835-2609
CITY OF
t
Federal a www.ciorfederaEwa .com
DECLARATION OF DISTRIBUTION
hereby declare, under penalty of perjury of the laws of the State of
Washington, that a:
❑ Notice of Land Use Application/Action
❑ Notice of Determination of Significance
(DS) and Scoping Notice
❑ Notice of Environmental Determination
of Nonsignificance (SEPA, DNS)
❑ Notice of Mitigated Environmental
Determination of Nonsignificance (SEPA,
MDNS)
❑ Notice of Land Use Application &
Optional DNS/MDNS
❑ FWRC Interpretatbn
Q Other
was ,mailed ❑ faxed
Q�
r� , 2017.
f-" s')
❑ Land Use Decision Letter
❑ Notice of Public Hearing before the
Hearing Examiner
❑ Notice of Planning Commission Public
Hearing
❑ Notice of LUTC/CC Public Hearing
❑ Notice of Application for Shoreline
Management Permit
❑ Shoreline Management Pemit
❑ Adoption of Existing Environmental
Document
�1
e- ailed and/or ❑ posted to or at each of the attached addresses on
d.-ad 1: s-t
Project Name Co J a- a On o14 n11
File Number(s) i� ��� s 7
Signature—!! Date —
K:\CD Administration Files\Declaration of Distribution,doc/Last printed 1 /12/2017 10:33:00 AM
CITY OF
Federal Va
NOTICE OFAGENCYDECISIONAPPEAL HEARING
Federal Way Department of Community Development Code Interpretation
#16-02 (16-105859-UP)
Notice is hereby given that the City of Federal Way Hearing Examiner will hold an agency decision
appeal hearing on Friday, March 17, 2017, at 10:00 a.m., in Federal Way City Hall Council Chambers
(33325 8th Avenue South, Federal Way).
Appellant: Federal Way Campus, LLC ("Appellant") via John C. McCullough
Application Received: November 14, 2016
Notice of Interpretation Issued: December 12, 2016
Date Appeal Received: December 21, 2016
Description of Matter Being Appealed:
1. Whether Process I, II, III, or IV applications vest developments identified in the Federal Way zoning
code and other land use control ordinances in effect on the date the complete applications are
submitted, and whether binding site plan and short plat applications vest such developments under
those processes.
2. Whether a short subdivision application (in addition to a binding site plan application) may be
submitted, accepted, and processed to segregate property that is zoned for commercial, business,
office, or industrial development.
Scope of the Appeal:
In its December 21, 2016 Appeal Letter, the Appellant alleges the City erred in issuing Code
Interpretation 16-02:
Pursuant to FWRC 19.15.045(4), a fully completed Process I, II, III, or IV application vests the
proposal to the zoning codes and other land use control ordinances in effect on the land at the
time the application has been submitted to the City; however, applications for binding site plans
and short subdivisions are not designated by the City's code as use process applications under
Process I, 11, III, or IV. Whether and to what extent applications for these categories of local land
use approvals trigger vested rights is governed exclusively by state law rather than by the City's
local regulations.
A short subdivision application cannot be used to segregate property zoned for commercial,
business, office, or industrial development under the FWRC. Pursuant to FWRC 18.20.010, a
binding site plan application is the mandatory and exclusive means by which to segregate
properties zoned for these use categories. The City's code does not contemplate, much less
expressly authorize, separate binding site plan and short subdivision applications to be submitted
and processed concurrently for the same site.
Participation in Agency Appeal Hearing:
Pursuant to the Hearing Examiner's Pre -Hearing Order, dated January 26, 2017, the Appellant and City
are the participants in the appeal. The order of presentation will be Appellant; City (including rebuttal and
closing); Appellant rebuttal and closing.
I:Vim Correspondence Hearing Notice for Code Inlerpreia lion 2,23 17 doc
Tamara Fix
From:
Jim Harris
Sent:
Thursday, March 02, 2017 1:54 PM
To:
Tamara Fix
Subject:
notice short distribution list for Agency Appeal Hearng
Email to: jack rnhseattle.com
And tmessmer industrialrealt rou .com
Also US mail to:
McCullough Hill Leary PS
John C. McCullough
701 Fifth Avenue Suite 6600
Seattle, WA 98104
And:
Federal Way Campus LLC
Tom Messmer
8847 Imperial Highway, Suite H
Downey, CA 90202
Give me a distribution certifiicate with all the above info please.
Jim Harris
Planner
33325 8th Avenue South
Federal Way, WA 98003-6325
Phone:253/835-2652 Fax: 253/835-2609
www.citvoffederalway.com
Office Hours Mon - Thur, 8:00 AM — 3:30 PM or by appointment
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY
Administrative appeal of Code Interpretation APPELLANT'S RESPONSE BRIEF
16-02
I. INTRODUCTION
In its opening brief, the City of Federal Way ("City") asserts that Code Interpretation
#16-02 ("Code Interpretation") is consistent with the "unambiguous language" of the Federal
Way Municipal Code ("City Code" or "FWMC"), legislative history and principles of statutory
interpretation. The City is incorrect. On the first question addressed in the Code Interpretation,
whether under the City Code Short Subdivision and Binding Site Plan (`BSP") applications vest
the Property to the land use laws and regulations in effect on the date a complete application is
submitted, the plain and unambiguous language of the City Code controls. These applications
vest. On the second question addressed in the Code Interpretation, whether the property
("Property") owned by the Applicant Federal Way Campus LLC ("Applicant") may be divided
by Short Subdivision, both the City Code and State law allow such a division. For these reasons,
the Appellant requests that the Hearing Examiner reverse the Code Interpretation.
APPELLANT' S RESPONSE BRIEF - Page 1 of 11
McCullough Hill. Leary, P5
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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II. AUTHORITY
A. Burden of Proof
The City asserts that the Code Interpretation is entitled to deference, relaying on authority
that describes the burden of proof in a hearing examiner appeal generally, without distinguishing
between issues of fact and purely legal issues. City's Pre -Hearing Brief ("City's Brief'), pp. 4,
17. However, this appeal is unusual in that it does not involve disputed factual issues, but solely
issues of law.' As the authority relied on by the City itself states, appellate decision makers "are
not bound by the agency's conclusions of law." City of Bellevue v. East Bellevue Comty. Mun.
Corp., 119 Wn. App. 405, 413, 81 P.3d 148 (2003).
In addition, an "administrative determination will not be accorded deference if the
agency's interpretation conflicts with the relevant statute." Budget Rent a Car Licensing, 144
Wn.2d 889, 90131 P.3d 1174 (2001); see also Cowiche Canyon Conservancy v. Bosley, 118
WN.2d 801, 815, 828 P.2d 549 (1992). Deference is not due an agency's interpretation of an
unambiguous ordinance because "[o]rdinances with plain meanings are not subject to
construction. Only ambiguous ordinances may be construed." Sleasman v. City of Lacey, 159
Wn.2d 639, 646, 151 P.3d 990 (2007).
Further, even if an ordinance is unambiguous, the agency interpretation is not accorded
deference unless it was adopted as a "matter of agency policy." Id. The City bears the burden to
show "its interpretation was a matter of preexisting policy." Id. at 647. Here, the City admits
that the City Code provisions at issue here are unambiguous. City's Brief, p. 1. Accordingly, no
deference is due the City's decision. Even if the City Code were ambiguous, which it is not, the
I The City acknowledges: "There are no disputed facts implicated in this proceeding." City's Brief, p. 2. The
Applicant agrees.
McCullough Hill Lepm PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT' S RESPONSE BRIEF - Page 2 of 11 206.812.3388
206.812.3389 fax
I City's interpretation is not entitled to deference because the City fails to show the Code
2 Interpretation is a matter of pre-existing policy.
3 In sum, in this case, the City's Code Interpretation is not subject to deference.
4
B. The Short Subdivision and BSP vest under FWMC 19.15.045(4)
5
The City argues that the Hearing Examiner should affirm the Code Interpretation
6
7 because: (1) the Short Subdivision and BSP do not vest under the plain language of the City
8 Code; (2) the legislative history supports the Code Interpretation; and (3) the Applicant's
9 interpretation is "unsupportable." City's Brief, pp. 5-11. These arguments are without merit.
10
1. The Short Subdivision and BSP vest under the plain language of the City
11 Code.
12 The City acknowledges that cities may adopt their own vesting rules and that it has done
13 so in City Code section 19.15.045(4), which provides vesting for land use process I, II,11I or IV
14
applications. City's Brief, p. 5. However, the City argues that Short Subdivisions and BSPs do
15
16 not vest because they are not Type 1, 11, III or IV decisions under the "unambiguous text" of the
17 City Code. Id., pp. 6-7. The City improperly ignores the express language of the City Code and
18 the legislative context of Section 19.15.045(4).
19 The City takes the position that decisions made under the City's subdivision regulations
20
(FWMC Title 18) are separate from the process type decisions discussed in its Zoning and
21
22 Development Code (FWMC Title 19). City's Brief, p. 6. But the plain language of the City
23 Code belies this claim. Specifically, City Code sections 19.15.010 and 19.15.020 identify
24 projects that are completely or partially exempt from the procedural requirements of Chapter
25 19.15 and the state law which it implements, RCW 36.70B. These requirements include Section
26
19.15.045 relating to completeness of applications and vesting. City Code section 19.15.010
27
exempts preliminary plats from some of these requirements and lot line eliminations and
28
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT' S RESPONSE BRIEF - Page 3 of 11 206.812.3388
206.812.3389 fax
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boundary line adjustments from others. City Code section 19.15.020 exempts some decision
types from the provisions of Process I through IV, but does not exempt Short Subdivisions or
BSPs. If the City were correct that Title 18 decisions are not subject to the processes of Title 19,
there would be no need for the exemptions of preliminary plats, lot line eliminations and
boundary line adjustments in Section 19.15.010. Also, if the City Council intended to exempt all
Title 18 decisions from the provisions of process I through IV, it could easily have included this
exemption in 19.15.020. However, short subdivisions and BSPs are not exempted under this
section. When interpreting a statute or ordinance, all words must be given meaning. "A court
must, when possible, give effect to every word, clause and sentence of a statute.... The goal is
to avoid interpreting statutes to create conflicts between different provisions so that we achieve a
harmonious statutory scheme." Am. Legion Post No. 149 v. Dep't. of Health, 164 Wn.2d 570,
585-586, 192 P.3d 306 (2008) (internal quotations and citations omitted). The City's argument
ignores the plain language of its own code and this fundamental principle of statutory
interpretation. The Hearing Examiner must reject the City's selective reading of the City Code.
In addition, "statutes relating to the same subject matter are to be considered together to
ascertain legislative policy and intent." Bennett v. Hardy, 113 Wn.2d 912, 926, 784 P.2d 1258
(1990). "Statutes relating to the same subject are construed together and, in ascertaining
legislative purpose ... are to be read together as constituting a unified whole, to the end that a
harmonious, total statutory scheme evolves." In re Estate of Black, 153 Wn.2d 152, 164, 102
P.3d 796 (2004). The City's Code Interpretation violates these principles by ignoring the State
law that Section 19.15.045 implements. Section 19.15.045(4) was adopted by the City to comply
with the requirements of RCW 36.70B, the Regulatory Reform Act. Specifically, RCW
36.70B.070 requires an agency to provide a determination of completeness, which may identify
MCCulloup-h Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT' S RESPONSE BRIEF - Page 4 of 11 206.812.3388
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the regulations that will be used for project mitigation, a preliminary determination of
consistency with applicable development regulations, and other information. City Code section
19.15.045 specifies the process for providing notice of complete application as required by RCW
36.70B.070(1) and also contains an optional additional vesting provision, as allowed by RCW
36.70B.070(3). While the City Code does not include a definition of "permit," RCW 36.7013.020
defines "project permit" as "any land use or environmental permit or license required from a
local government for a project action, including but not limited to building permits, subdivisions,
binding site plans, planned unit developments, conditional uses, shoreline substantial
development permits, site plan review, permits or approvals required by critical area ordinances,
site -specific rezones authorized by a comprehensive plan or subarea plan...." (Emphasis
added.) Consistent with the State law provision which the City Code implements, Short
Subdivisions and BSPs are subject to the requirement for notice of complete application as well
as the City's vesting provision of City Code Section 19.15.045.
2. The City improperly relies on legislative history.
The City asserts that legislative history supports its position that Titles 18 and 19 are
entirely independent from each other. City's Brief, pp. 7-9. This is not the case.
Under the City's own argument, legislative history is irrelevant. In interpreting a local
ordinance, the plain meaning is controlling. Chelan County v. Nykreim, 146 Wn.2d 904, 926, 52
P.3d 1 (2002) ("when statutory language is plain and unambiguous, the statute's meaning must
be derived from the wording of the statute itself.") Absent ambiguity, the City must apply the
ordinance as written. Diehl v. Growth Management Hearings Board, 153 Wn.2d 207, 214, 103
P.3d 193 (2004) ("Absent ambiguity, a statute's meaning must be derived from the wording of
the statute itself without judicial construction or interpretation ... When statutory language is
McCullough Hill Learv, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT'S RESPONSE BRIEF - Page 5 of 11 206.812.3388
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clear and unequivocal, courts must assume that the legislature meant exactly what it said and
apply the statute as written."). The City asserts that the language of the City Code at issue here
is "unambiguous." City's Brief, p. 4.2 Because this City Code language is unambiguous, its
provisions are not subject to construction, and any legislative history is irrelevant. Instead, the
Hearing Examiner must look to the plain language of the City Code. As previously discussed,
this language supports the Applicant's position, not the Code Interpretation.
Even if the City Code were ambiguous, which it is not, elements of legislative history
such as a staff report or successive drafts of a statute is not considered reliable in determining
legislative intent. See Louisiana-Pacific Corp. v. Asarco Inc., 131 Wn.2d 587, 599, 934 P.2d
685 (1997); Hama Hama Co. v. Shoreline Hearings Bd., 85 Wn.2d 441, 451, 536 P.2d 157
(1975).
In addition, the legislative history the City relies on does not support its case. The City
relies on Ordinance No. 97-291, which it states was adopted to segregate the subdivision process
from other land use processes. City's Brief, p. 8. However, the Ordinance itself does not state
that this is its purpose. Indeed, the Ordinance is entirely silent on the application of the current
City Code section 19.15.045 to subdivisions and binding site plans. Rather, the Ordinance states
that it was adopted to implement the Regulatory Reform Act (RCW 36.70B). Declaration of J.
Zachary Lell ("Lell Declaration"), Ex. 2, p. 1. As previously discussed, the Regulatory Reform
Act includes both subdivisions and binding site plans as "project permits" subject to its
procedural requirements. RCW 36.70B.020
2 The Appellant agrees that the City Code is unambiguous. A statute or code "is ambiguous if it can reasonably be
interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable."
Cerrillo v. Esperanza, 156 WN.2d 194, 201, 142 P.3d 155 (2006). Here, as discussed in the Applicant's opening
brief and in this response brief, the language of the City Code unambiguously supports the Applicant's position,
when all provisions are given meaning, the City Code is construed as a harmonious whole, and it is interpreted to be
consistent with State law.
McCullough Hill Learv, P5
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT' S RESPONSE BRIEF - Page 6 of 11 206.812.3388
206.812.3389 fax
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The City also relies on the Planning Commission recommendation. City's Brief, pp. 8-9.
Like the Ordinance itself, the Planning Commission recommendation states that the intent of the
Ordinance is to implement the Regulatory Reform Act. Lell Declaration, Ex. 3, p. 1. The
Planning Commission recommendation lists seven "major changes" required by Regulatory
Reform, none of which relate to vesting. Id. The Planning Commission recommendation is silent
as to the application of the current City Code section 19.15.045 to subdivisions and binding site
plans. The fact that the Planning Commission recommendation discusses the creation of a
separate Title relating to subdivisions does not mean that Section 19.15.045 does not apply.
In short, the City Code's plain language controls here. The City cannot use legislative
history to read language into the City Code that does not exist.
3. The Applicant's argument is supported by the City Code.
The City argues that the Applicant's position is "unsupportable." City's Brief, p. 9.
Nothing could be farther from the truth.
The Applicant's position is supported by the plain language of the City Code. The City's
argument, in contrast, relies on the implication of language that is not present in the City Code.
Specifically, the City claims that the process type regulations of City Code Title 19 "apply only
where a particular land use approval has been designated as such." City's Brief, p. 10 (emphasis
in original). The City goes on to quote provisions of the City Code that say no such thing. These
provisions merely state that "[v]arious places in the Code indicate that certain developments,
activities, or uses are permitted only if approved using process [I." Id. If the City Council
had intended to say that the process types apply only where a land use approval has been
designated as a particular process type, it could easily have adopted this language. Yet, it did
not.
McCullough Hill Learv,_PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT'S RESPONSE BRIEF - Page 7 of 11 206.812.3388
206.812.3389 fax
I The Hearing Examiner should reject the City's attempt to insert new language into the
2 City Code that simply does not exist.
3 C. The City Code allows a Short Subdivision of the Property.
4
The City argues that the Hearing Examiner should affirm the Code Interpretation
5
because: (1) City Code section 18.20.010 is "categorical" and unambiguous in its requirement
6
7 for a BSP; (2) other relevant provisions of the subdivision code support the Code Interpretation;
8 (3) no other provision qualifies Section 18.20.010; (4) the Code Interpretation is consistent with
9 State law .3 City's Brief, pp. 11-17. The City is incorrect.
10
1. City Code section 18.20.010 does not support the City's position.
11
The City quotes City Code section 18.20.010 but omits its title. City's Brief, p. 11. This
12
13 section states, in its entirety:
14 18.20.010 Subdivisions requiring binding site plan.
Division of any land for sale or lease which is classified for commercial, business,
15 office, or industrial development, or which is to be developed as a manufactured
home park shall be required to obtain an approved binding site plan in accordance
16 with this and other ordinances of the city.
17
Emphasis added. Directly contrary to the City's argument, this section does not discuss
18
19 subdivisions and BSPs as mutually exclusive. Rather, on its face, this section simply provides
20 that there are some subdivisions that also need a BSP approval. The Hearing Examiner must
21 reject the City's argument based on its incomplete citation to Section 18.20.010.
22 2. The other provisions relied on by the City do not support its argument.
23
The City claims that other City Code provisions support its claim. City's Brief, pp. 12-
24
13. The City is incorrect. The City cites two City Code sections: 18.05.030(3) (subdivision not
25
26 "required" when the City has approved a binding site plan for the land) and 18.05.010 (binding
27
s The City also argues that the Code Interpretation is subject to deference. City's Brief, p. 17. This argument is
28 addressed in Section II.A, supra.
McCullough Hill Leary, P5
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT' S RESPONSE BRIEF - Page 8 of 11 206.812.3388
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site plan is a division of land for commercial and industrial use; short subdivision is the division
of land into nine or fewer lots; subdivision is the division of land into 10 or more lots). Yet,
neither of these sections states that a BSP and short subdivision are mutually exclusive. The City I
creates this restriction from whole cloth. The Hearing Examiner must reject the City's attempt to
add words to the City Code.
3. The City's argument that no provision "qualifies" FWMC 18.20.010 is
irrelevant.
The City argues that no City Code section "qualifies" City Code section 18.20.010.
City's Brief, pp. 13-14. This is irrelevant, since Section 18.20.010 does not, on its face, preclude
submission of both a Short Subdivision and BSP.
The City also attempts to distinguish City Code Section 18.05.010, which defines "short
plat." This section states:
"Short plat" means a final drawing of the short subdivision and dedication
prepared for filing for record with the county auditor and containing all elements
and requirements set forth for short subdivisions in this title and as required by
state law. Short plat applies to conventional and cluster subdivisions, cottage
housing, zero lot line townhouse development, and small lot detached
development of nine or fewer lots, as well as binding site plans.
(Emphasis added.) Under the plain language of this section, a "short plat applies to ...
subdivisions ... as well as binding site plans." The two may coexist; they are not exclusive of
each other. The City argues that this definition relates to a "depiction" of property as opposed to
a "method" of division. City's Brief, p. 13. This is a distinction without a difference. On its
face, Section 18.05.010 provides that a subdivision and binding site plan may coexist in the same
drawing. This directly contradicts the City's position that the two are entirely separate.
The Hearing Examiner must reject the City's strained reading of the City Code.
APPELLANT' S RESPONSE BRIEF - Page 9 of 11
McCullough Hill LeM. P5
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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4. The Code Interpretation conflicts with State law.
The City argues that: (1) the Applicant is asking the Hearing Examiner to rule on the
validity of the City Code; and (2) the City Code is consistent with State law. City's Brief, pp.
14-16. The City is wrong on both counts.
The Applicant is not requesting that the Hearing Examiner rule on the validity of the City
Code. Instead, the Applicant is requesting only that the Hearing Examiner review the Code
Interpretation and interpret the City Code, which actions are well within the Examiner's
jurisdiction and authority. It is a well -established principle of statutory interpretation that "[i]f
possible, an enactment must be interpreted in a manner which upholds its constitutionality." City
of Tacoma v. Luvene, 118 Wn.2d 826, 841, 827 P.2d 1374 (1992). The Applicant is simply
asking the Hearing Examiner to apply this principle of interpretation to this case.
The City acknowledges the provision of state law that"[a] city, town, or county may
adopt by ordinance procedures for the divisions of land by use of a binding site plan as an
alternative to the procedures [for subdivisions] required by this chapter" for, among other things,
commercially or industrially zoned properties. City's Brief, p. 15, citing RCW 58.17.035
(emphasis added). However, as it did in the Code Interpretation, the City relies on Black's Law
Dictionary's definition of "alternative" as "[o]ne or the other of two things." City's Brief, p. 15.
The City ignores other well -respected dictionary definitions of "alternative" as "offering or
expressing a choice" (Merriam -Webster Dictionary) or "offering a choice between two or more
things" (Cambridge Dictionary)4 Further, the City's argument is contrary to all of these
definitions. The City's position leaves the applicant with no choice in the matter. According to
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snsasce-isnnld; mbri =e.c� ti 1' n a en lisp 1 n ve.
McCidlvu h Hill LeM, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPELLANT'S RESPONSE BRIEF - Page 10 of 11 206.812.3388
206.812.3389 fax
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the City, there is no "one or the other" of two things. There is only one thing: the mandatory
and exclusive BSP process. This interpretation is inconsistent with state law.
The Hearing Examiner should reverse the Code Interpretation on this basis.
III. CONCLUSION
For these reasons, the City's Code Interpretation should be reversed.
DATED this 2nd day, of March, 2017.
s/John C. McCullough, WSBA #12740
s/Courtney A. Kaylor, WSBA #27519
Attorneys for Federal Way Campus LLC
McCULLOUGH HILL LEARY PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Tel: 206-812-3388
Fax: 206-812-3389
Email: lack ,mhseattle.com
Email: courtney@mhseattle.com
APPELLANT'S RESPONSE BRIEF - Page 11 of 11
McCullough Hill Lear►, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY
Administrative appeal of Code Interpretation DECLARATION OF SERVICE
16-02
1, Laura D. Counley, declare as follows:
I am employed with McCullough Hill Leary, P.S., which represents Federal Way
Campus, Appellant. I served a copy of the APPELLANT'S RESPONSE BRIEF and this
DECLARATION OF SERVICE via electronic mail service on the following parties:
Phil Olbrechts Stephanie Courtney
Hearing Examiner Email:
Email: olbrechtslaw@gmail.com stephanie.courtney@citvoffederalwa,
Mark Orthmann Zack Lell
Email: Email: zlell(@omlaw.com
mark.orthmann @,citvoffedet-alwaY.com
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct to the best of my knowledge and belief.
DATED this 2"d day of March, 2017.
DECLARATION OF SERVICE
Page 1 of 1
s/Laura D. Counley
McCULLOUGH HILL LEARY PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Tel: 206-812-3388
Fax: 206-812-3389
Email: lauri@.mhseattle.com
McCullough M11 LeAM PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
Administrative Appeal of Code }
Interpretation No. 16-02 ) CITY'S RESPONSE BRIEF
I. INTRODUCTION
Appellant Federal Way Campus, LLC's challenge to Interpretation No. 16-02 disregards
the unambiguous language of the relevant code provisions and violates numerous rules of
statutory construction. The Community Development Director correctly interpreted the FWRC's
local vesting provision as excluding applications for binding site plans and short subdivisions,
and likewise accurately concluded that applicants must use the BSP mechanism in order to
divide commercial and industrial property under the City's code. Appellant has not satisfied its
burden of demonstrating error in the Director's presumptively correct determination. The
Hearing Examiner should accordingly deny Appellant's appeal and affirm Interpretation No. 16-
1 02.
H. ARGUMENT
2.1 Applications for Binding Site Plans and Short Subdivisions Do Not Vest as
Process I, II, III or IV Applications Under FWRC 19.15.045(4).
The City of Federal Way's local vesting provision is facially clear in both its scope and
effect:
i JZL1553276 DOCX;1113104000002/1(JZL1553276,DOCX;1/13104.000002,' OGDEN MURPHY WALLACE, Y.i.. L.C.
CITY'S RESPONSE BRIEF - 1 901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000, Fax: 206.447.0215
1 A proposed use process I- 11. III or IV application shall vest to and
be considered under the zoning code and other land use control
2 ordinances in effect on the land at the time a fully completed
3 application for use mocess I. ll. III. t71- IV has been submitted to the
city....
4
FWRC 19.15.045(4) (emphasis added).
5
6 By its terms, vesting under FWRC 19.15.045(4) is afforded only to applications for use
7 process I, II, II and IV proposals. There is no ambiguity in this ordinance provision, which must
g accordingly be construed in accordance with its plain meaning. Sleasman v. City of'Lacey, 159
9 Wn.2d 639, 643, 151 P.3d 990 (2007). The other relevant sections of the City's code are equally
10 clear: Nothing in the FWRC acknowledges, much less expressly designates; binding site or short
11
subdivision applications as "process" type proposals. See Title 19 FWRC; Title 18 FWRC. The
12
Director accordingly determined that applications for BSPs and plats are not "process" type
13
14 categories and thus do not vest under FWRC 19.15.045(4). Interpretation No. 16-02, at 3-5.
15 Appellant's contrary interpretation relies upon an unpersuasive patchwork of code and
16 statutory references that are at best peripheral to the FWRC's vesting provision. The Examiner
17 should reject Appellant's arguments.
18 2.1.1 BSP and short subdivision applications do not "qualify" as Type I
19
process approvals.
20
Unable to cite any code provision that actually designates or recognizes BSP and short
21
22 subdivision applications as "process" types (none exists), Appellant attempts to shoehorn them
23 into this category by analogy. According to Appellant, binding site plan and short subdivisions
24 "qualify" as Type I decisions because they involve a primary decision by the Director and are
25 subject to administrative appeal before the Hearing Examiner. Appellant's Opening Brief at 5.
26
(JZL.1553276 DOM111310400000211 t1ZL1553276 DOCXJ/13104,0000021
CITY' S RESPONSE BRIEF - 2 OGDEN 1vIURP11v WALLACE, F.L.L C.
901 Fiti13 Avem1e, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.441.0215
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This argument ignores the governing framework of the FWRC. The "process" type
regulations of Title 19 FWRC apply only where a particular land use category has been
specifically and affirmatively "indicated" as such. See FWRC 19.55.010; FWRC 19.60.010;
FWRC 19.65.010; FWRC 19.70.010. The City's code does not acknowledge the type of passive,
de facto classification proffered by Appellant. It is thus irrelevant that the administrative
decisional process for BSPs and short subdivisions may share some similarities with Process I
use types. Instead, the dispositive point is that no provision of the FWRC actually designates
BSPs and short subdivisions as Process I applications. Appellant has not demonstrated that the
Director's determination of this issue under interpretation No. 16-02 was incorrect on this basis.
2.1.2 FWRC 19.15.010 and FWRC 19.15.020 are irrelevant.
Appellant's attempt to reason backward from FWRC 19.15.010 and FWRC 19.15.020 is
likewise without merit. Appellant's Opening Brief at 5-8. FWRC 19.15.010 merely effectuates
a statutory option to remove particular project permits from the otherwise applicable
requirements of the Regulatory Reform Act. See RCW 36.70B.140. Pursuant to this authority,
the City in its discretion has chosen to exempt various land use proposals, including preliminary
plats and boundary lines adjustment, from these state law provisions. This unremarkable policy
choice is irrelevant to the interpretative issues implicated in the instant appeal.
Appellant's argument also finds no support in FWRC 19.15.020. That section merely
designates a few specific project categories referenced elsewhere in Title 19 FWRC that are
exempt from Process I through IV requirements. Neither FWRC 19,15.010 nor FWRC
19.15.020 affirmatively identifies binding site plans and short plats as a particular "process" type
for purposes of the City's land use code —much less purports to subject them to the vesting
IM' 1553276 DOMI(13104000002!) [1ZL1553276 DUMM3104 C-000021
CITY' S RESPONSE BRIEF - 3
OGDF.N MURYHY WALLACL, P,L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206,44T7000/Fax: 206,447,0215
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provisions of FWRC 19.15.045(4). The limited scope of the latter code section is unaffected by
FWRC 19.15.010 and FWRC 19.15.020.
2.1.3 Appellant's arguments ignore directly relevant legislative history.
Appellant's core assertion—i.e., that binding site plan and plat applications are
"process" types governed by Title 19 FWRC—is also fatally undermined by the legislative
history of the City of Federal Way's land use regulations.
The City's original development code designated BSPs and short subdivisions as
"Process I1I" and "Process I" type applications, respectively. Declaration of J. "Zachary Lell,
Exhibit 1 (Ordinance No. 90-41, Exhibit A, §16.170.10, §16.430.030).' The City subsequently
removed these designations from the code in 1997 in order to establish an independent, self-
contained regulatory framework for plat -related matters within a separate code title. Lell Dec.,
Exhibit 2 (Ordinance No. 97-291, Attachment K, §20-62(c), §20-88; Exhibit 3 (City of Federal
Way Planning Commission Recommendation, at 1-9) 2 The Planning Commission's formal
memorandum accompanying the 1997 amendments clarified that preliminary plats, short plats,
BSPs, boundary line adjustments and lot line eliminations "will be treated entirely" within the
subdivision title of the revised code. Lell Dec., Exhibit 3 (City of Federal Way Planning
Commission Recommendation, at 4. In furtherance of this objective, the amendments involved
"deleting any references to Use Processes within the Subdivision Chapter." Lell Dec., Exhibit 3
(City of Federal Way Planning Commission Recommendation, at 8 (emphasis added)).
The City's legislative intent to sharply segregate the code's plat -related regulations from
Ethe other land use procedures codified in Title 19 FWRC could hardly be clearer. In addition to
1 Attached to the City's Pre -Hearing Brief and on file with the Examiner.
2 Id.
(.ZI.1553276 DOCX; I Y13104000002/j 11ZL 1553276 DOCJCIi1310400000211 OGDEN MURPHY WALLACE, P.L,L.C,
CITY' S RESPONSE BRIEF - 4 901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206,447, 0215
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the Planning Commission's unambiguous explanatory statements above, the strike -through and
underline format of the amendments adopted under Ordinance No. 97-291 itself conclusively
demonstrates the City's deliberate intent to remove BSPs and short subdivisions from the code's
"process" type regulations. Lell Dec., Ordinance No. 97-291, Attachment K, §20-62(c), §20-88.
This legislative history further supports the Director's interpretation.
2.1.4 Appellant's proffered interpretation would render the procedures
codified in Title 18 FWRC meaningless.
Finally, Appellant's argument, if accepted, would render substantial portions of the City's
code superfluous and/or redundant in violation of applicable rules of construction. For each of
the "process" use types identified in Title 19 FWRC, the code prescribes a detailed procedural
framework governing the application process, notice requirements, decisional authority, appeal
venue, etc. See, e.g., Chapters 19.15 FWRC; Chapters 19.55 -.080 FWRC. Separately, Title 18
FWRC contains a similarly detailed procedural scheme for boundary line adjustments, binding
site plans, short subdivisions and formal subdivisions. The latter procedures would be rendered
unnecessary or at the very least duplicative if, as Appellant contends, the plat -related matters
governed by Title 18 FWRC were also redundantly subject to the provisions of Title 19. Basic
principles of interpretation forbid this approach. See, e.g., Jones v. King County, 74 Wn. App.
467, 476, 874 P.2d 853 (1994).
2.2 A Binding Site Plan Is the Exclusive Means of Dividing Commercial and
Industrial Property Under the FWRC.
2.2.1 The Director's interpretation correctly construed the relevant FWRC
provisions.
,M 1553276 DOCX;1l13104=00021 ) (MA553276 Di3CXj!13104 000002/ 1
CITY'S RESPONSE BRIEF - 5
OGD[iiN1 MURPHY WALLACE, P.L.L.C.
901 fifth Avenue, Suite 3500
seattle, Washington 98164-2008
Tel: 206.44 7.7000/Pax: 206.44 7.0215
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Effectuating the unambiguous, mandatory language of the City's code, the Director
correctly determined that commercial and industrial land can only be segregated by obtaining
approval of a BSP under the City's regulations. Interpretation No. 16-02 at 3-5.- FWRC
18.20.010 allows for no other interpretation:
Division of any land for sale or Iease which is_ classified For
eomnu;rcia1, business. off -ice, or industrial develo tnent. or 4Njhich
is Lo be devc1ol2ed as a manuiactUl-C l home park shall be re Aired
to obtain an approved binding site plan in accordance with this and
other Binding site plans are required for
condominium development only where a division of land is
required to segregate property.
FWRC 18.20.010 (emphasis added).
Appellant's contrary arguments are not credible. Appellant's Opening Brief at 9-11.
Nothing in Title 18 FWRC contemplates that a landowner should submit dual, separate BSP and
short subdivision applications to divide the same property a redundant, wasteful and counter-
intuitive approach that defies common sense. Instead, the City's regulations clarify that
subdivision review is not required for "[d]ivisions of land into lots or tracts classified for
industrial or commercial use when the City has approved a binding site plan for the use of the
land[.]" FWRC 18.05.030(3). Binding site plans are likewise identified as a distinct method of
"land division" separate from conventional subdivisions, See FWRC 18.05.010. Consistent with
the state law designation of binding site plans as an tiilLernativc to the regular subdivision process,
see RCW 58.17.035, these provisions underscore the clear import of FWRC 18.20.010: The BSP
mechanism is the exclusive, mandatory means of dividing commercial and industrial property
under the City's code.
The code's definition of "short plat" in FWRC 18.05.010 does not alter this conclusion or
otherwise undermine the Director's interpretation. The physical depiction of a proposed land
„Z1.1553276 DOCX,V13104 00000V I 1I 15.53276,DOCX;1i13104 000002/ 1
CITY'S RESPONSE BRIEF - 6
OGDEN MURPI-IY WALLACE,, P.L.L..C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447. 7000/Pax: 206A47.0215
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division (i.e., the plat) is fundamentally distinct from the regulatory mechanism by which to
process and approve the division in the first instance. Detailed standards and procedures
governing the latter are clearly set forth in the City's code. See Chapters 18.20, 18.30 and 18.35
FWRC. Appellant's argument confuses these concepts and is without merit. Appellant's
Opening Brief'at 10-11.
2.2.2 The Director's Interpretation is consistent with state law.
Appellant correctly notes that the City's local regulations should be reasonably construed
in accordance with applicable state law. Appellant's Opening Brief at 11. The Director's
construction of the relevant FWRC provisions in Interpretation No. 16-02 complied with this
requirement.
In the context of industrially and commercially zoned properties, the state subdivision
statute, Chapter 58.17 RCW, provides that a binding site plan is an alternative to otherwise -
applicable subdivision procedures:
A city, town, or county may adopt by ordinance procedures for the
divisions of land by use of a binding site plan as an alternative to
the procedures re uired b Lllis cha tamer. The ordinance shall be
limited and only apply to one or more of the folioLAj g e Luse
ol'a binding Site plan to divisions for sale or Iease of comnieraially
or industriall zoned ro ertv as rovided in RCW 58-17.040 4 ;
(2) divisions of property for lease as provided for in RCW
58.17.040(5); and (3) divisions of property as provided for in RCW
58.17.040(7). Such ordinance may Ft ply the sane or dilYerent
requirements and procedures to each vl'the three tv es ofdivisio.ns
and shall provide for the alteration or vacation of the binding site
plan, and may provide for the administrative approval of the
binding site plan.
RCW 58.17.035 (emphasis added). RCW 58.17.040(4) further clarifies that binding site plans
are exempt from the requirements of the entire subdivision statute.
(!ZL155J276.U0CX;1!13104 00000211 IJZLI553276 DQCR;II13 iO4,00De02/ 1
CITY'S RESPONSE BRIEF - 7
OLDEN MURPHY WALLACE, RL.L.C.
901 fifth Avenue; Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206A47.0215
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The local discretion conveyed by RCW 58.17.035 and RCW 58.17.020(4) is largely self-
evident. Cf. IIIS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 483, 61 P.3d 1141 (2003).
Municipalities are afforded broad latitude to develop local ordinances containing procedures for
the use of binding site plans in the context of commercially and industrially zoned property.
Contrary to Appellant's suggestion, neither Chapter 58.17 RCW itself nor any reported
Washington caselaw prohibits cities from designating the BSP mechanism as the exclusive,
mandatory procedure for dividing commercial and industrial land. In this regard, it is significant
that the authorizing statute frames the "alternative" purely in terms of the munieipaliUy's policy
choice in adopting a local BSP ordinance in the first instance. RCW 58.17.035. The statute does
not provide that "the applicant may choose its method for land division" in the manner
contended by Appellant. Appellant's Opening Brief at 12.
Arguments concerning due process and vested rights under state law, see Appellant's
Opening Brief at 12-13, are beyond the scope of the Hearing Examiner's jurisdiction.
Chausee v. Snohomish County Council, 38 Wn. App. 630, 638, 689 P.2d 1084 (1984).
Irrespective, Appellant's contentions in this regard are incorrect. The scope of Washington's
vested rights doctrine has been significantly reduced and currently encompasses only those
applications that are expressly vested by statute. See, e.g., Potala Vill. Kirkland, LLC v. City of
Kirkland, 183 Wn. App. 191, 203-04, 334 P.3d 1143, 1149 (2014). In the context of
subdivisions, the vesting provisions of Chapter 58.17 RCW are set forth at RCW 58.17.033—a
statute limited by its terms to applications for preliminary plats and short subdivisions and which
excludes BSPs. As Appellant concedes, see Appellant's Opening Brief at 11, the vesting
protections of state law do not encompass binding site plans. RCW 58.17.033; RCW
58.17.040(4).
tJZ1,155312•re D0CX;113104000002/) (JZL€ 553276,DOCX; 1/ 13104 DOON211
C.I`I'Y'S RESPONSE BRIEF - 8
OGDEN MURPHY WALLACE, P.L.L.C.
901 l"ifth Avenue, Suite3500
Seattle, Washington 98164-2008
Tol: 206.447.7000 F-ax: 206.447,0215
I.
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If the Legislature had desired to extend the statutory vested rights doctrine in this manner,
it could easily have done so. Instead, Chapter 58.17 RCW evinces the Legislature's intent for
municipalities to develop their own standards and procedures for binding site plans, subject only
to the minimal constraints imposed by that statute itself. RCW 58.17.035; RCW 58.17.020(4).
The City of Federal Way's local regulations are wholly consistent with this authority, and the
Director's determination under Interpretation No. 16-02 properly construed these provisions.
III. CONCLUSION
Appellant has not met its burden of demonstrating that the Director's determinations
under Interpretation No. 16-02 were erroneous. The Examiner should deny Appellant's appeal
and affirm the Interpretation.
DATED this 2nd day of March, 2017.
(JZL I S53276 DOCX:1/ 13104 000002/ ) IJZL 155.3276 DOCX; I / 13104,00000211
CITY'S RESPONSE BRIEF - 9
OGDEN MUR.PHY WALLACE, PLLC
By:
J. C.acht y Lell, WS A 28744
Attorney for City of Federal Way
OGDEN MURPHY WALLACE, P.L,L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206,447.0215
L,-
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DECLARATION OF SERVICE
1, Gloria J. Zak, an employee of Ogden Murphy Wallace, PLLC, make the following true
statement:
On the 2"d day of March, 2017 I provided the City's Response Brief as follows:
To the Federal Way flearinp Examiner:
Phil Olbrechts
c/o Dept of Community Development
CITY OF FEDERAL WAY
33325 8th Avenue South
Federal Way WA 98003
Mark Orthmann, City Attorney
Stephanie D. Courtney, City Clerk
CITY OF FEDERAL WAY
33325 8th Avenue South
Federal Way WA 98003
olbrechtslaw!@grnail.com
mark. orthmann@cityoffederalway. eom
Stephanie.courtney@cityoffederalway.com
Attorney for Appellant / Federal Way Campus LLC
John McCullough jack@mhseattle.com
Courtney Kaylor Courtney@mhseattle.com
McCULLOUGH HILL LEAR, PS
701 Fifth Avenue Suite 6600
Seattle WA 98104
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
EXECUTED at Seattle, Washington thi22nd y of March, 2017.
Gloria J. Zak
(1ZL1553276 DOCX;1/13104.000002/ ) (JZ..L1553276 DOCX;1/13104,000002/ ]
CITY' S RESPONSE BRIEF - 10
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.44T0215
MCCULLOUGH: HILL LEARY, PS
December 21, 2016
VIA HAND DELIVERY
Hearing Examiner
c/o Department of Community Development
City of Federal Way
33325 8th Ave. S.
Federal Way, WA 98003
Re: Letter of Appeal
Code Interpretation #16-02
Dear Hearing Examiner:
We represent Federal Way Campus LLC ("Appellant"), the owner of the former
Weyerhaeuser property ("Property"). Pursuant to Federal Way Municipal Code ("City Code" or
"FWMC") Section 18.30.140, the Appellant appeals Code Interpretation #16-02 ("Code
Interpretation") issued by the City of Federal Way ("City") Department of Community
Development ("DCD'� on December 12, 2016.
Consistent with the requirements of FWMC 18.30.140, this application includes: (1) a
statement of the decision being appealed and a copy of the decision; and (2) a statement of the
alleged errors in the decision, including identification of specific factual findings and conclusions
disputed by the person filing the appeal, (3) the Appellanes name, address, telephone number and
fax number, and any other information to facilitate communications with the Appellant; and (4)
filing fee.
1. cision Being A1212caled
The Appellant appeals the Code Interpretation. The Code Interpretation is attached as
Exhibit A and the Notice of DCD Interpretation #16-02 is attached as Exhibit B.
2. Effect on Appellant
The Appellant is affected by the Interpretation because it is the applicant for the short plat
and binding site plan approvals referenced in Section 3.a below and the effect of the Code
Interpretation is to prevent the filing of a short plat application for segregation of the Property and
to deny vested right status to the Applicant as a result of the fling of the subject applications. These
results of the Code Interpretation deny the Applicant its rights under the law and prevent the
Applicant from establishing its vested rights for the Property. In addition, the Applicant is the
701 Fifth Avenue • Suite 6600 • Seattle, Washington 981.04 - 206.812,3388 . Fax 206.812.3389 . �Nww.mhseattlexom
Hearing Examiner
December 21, 2016
Page 2 of 5
owner of the Property, and the Code Interpretation affects the Applicant's rights relating to the
Property and its future redevelopment.
3. Alleged Errors in Decision
The City erred in issuing the Code Interpretation. The Appellant assigns error to the
findings and conclusions made in Sections 2.1 (the portions of this section beginning with the word
"however" }, 2.2, 5.1 (first sentence/heading), 5.1.2, 5.2, 6.1 (the portions of this section beginning
with the word "however") and 6.2. The errors are further discussed below.
a. Factual Bac o d
On October 13, 2016, the Applicant submitted short subdivision and binding site plan
("BSP"} applications for a portion of its property ("Property").' On October 21, 2016, the City sent
two letters to the Applicant. The City rejected the short subdivision application, stating that a BSP
is the "exclusive method to divide property that is zoned for commercial, business, office or
industrial development." The City also stated that if the Applicant disagreed, then the Applicant
could "apply for a formal administrative interpretation" concerning the matter. The Applicant filed
an appeal of the rejection of the short subdivision application to the Hearing Examiner. On
November 7, 2016, the City sent a letter to the Applicant in which it responded that the rejection is
not subject to administrative appeal and that a formal code interpretation is an administrative
remedy. Accordingly, the applicant submitted a formal request for code interpretation. On
December 12, 2016, the City issued the Code Interpretation. The Applicant now appeals the Code
Interpretation.
b. The short subdivisi n and BSP vest under FWMC 19.15.045l41
The Code Interpretation erroneously concluded that short subdivision and BSP applications
do not vest under F'WMC 19.15.045(4) because they are not Type I, II, III or IV applications.
Contrary to this conclusion, the short subdivision and BSP are subject to the provisions of City
Code section 19.15.045(4). The City Code does not identify which permits are Type I, II, III or IV.
Instead of listing permits that are included within each process type, the City Code identifies permits
that are exempt from Process I through IV. Specifically, City Code sections 19.15.010 and 19.15.020
identify permits that are completely or partially exempt from the requirements of Chapter 19.15 and
the state law which it implements, RCW 36.70B? While preliminary plats and boundary line
adjustments are exempt from some requirements relating to timing and notice, respectively, no other
I The zoning and land use controls in effect on the Property are governed by the Weyerhaeuser Company Concomitant
Pre -Annexation Zoning Agreement, dated August 23,1994, and the First Amendment to Weyerhaeuser Company
Concomitant Pre -Annexation Zoning Agreement, dated April 8, 2003 (collectively "Concomitant Agreement"}.
2 As Section 19.15.010 indicates, the permit processing provisions of the City Code were adopted pursuant to RCW
36.70B. The City Code does not include a definition of "permit," but RCW 36.70B.020 defines "project permit" as "any
land use or enviroammul permit or license required from a local government for a project action, including but not
limited to building permits, sphdivisions,a , ph ned unit developments, conditional uses, shoreline
substantial development permits, site plan review, permits or approvals required by critical area ordinances, site -specific
rezones authorized by a comprehensive plan or subarea plan... "
Hearing Examiner
December 21, 2016
Page 3 of 5
action under City Code Title 18 (subdivisions) is exempt from any requirement of Chapter 19.15.
The City's argument that BSPs and subdivisions do not fall within Process I through IV ignores
these provisions of the City Code. Yet, when interpreting a statute or ordinance, all words must be
given meaning. "A court must, when possible, give effect to.every word, clause and sentence of a
statute.... The goal is to avoid interpreting statutes to create conflicts between different provisions
so that we achieve a harmonious statutory scheme." Am. Legion Post No. 149 V. Dep't. of Health, 164
Wn.2d 570, 585-586, 192 P.3d 306 (2008) (internal quotations and citations omitted).
C. The !iM Cade ❑ ws ash rt subdivision f the Pro er
i. Principles of 5tatutory construction
In interpreting a local ordinance, the plain meaning is controlling. Chelan County v. Nykreim,
146 Wn.2d 904, 926, 52 P.3d 1 (2002) ("when statutory language is plain and unambiguous, the
statute's meaning must be derived from the wording of the statute itself.") Absent ambiguity, the
City must apply the ordinance as written. Diehl v. Grmvtb Mann&emrntHeraringf hoard, 153 Wn.2d 207,
214, 103 P.3d 193 (2004) ("Absent ambiguity, a statute's meaning must be derived from the wording
of the statute itself without judicial construction or interpretation.... When statutory language is
clear and unequivocal, courts must assume that the legislature meant exactly what it said and apply
the statute as written."). To determine the plain meaning of an undefined term, courts may look to
the dictionary. HomeSireet, Inc. v. De
't of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009).
In addition,
Local jurisdictions may enact ordinances upon subjects already covered by state
legislation if their enactment does not conflict with state legislation. This court will
consider an ordinance to be constitutionally invalid on grounds of conflict if the
ordinance "'directly and irreconcilably conflicts with the statute."' If, however, the
ordinance and statute can be harmonized, no conflict will be found.
Unconstitutional conflict occurs when an ordinance permits what is forbidden by state
law or prohibits what state law permits.
HJS Dep. a Pierce County, 148 Wn.2d 451, 482, 61 P.3d 1141 (2003)
ii. City Code Provisions
City Code Title 18 governs subdivisions. Chapter 18.30 provides the process for short plat review
and approval. Chapter 1820 addresses BSPs. There are no provisions in this Title that expressly
prohibit the short platting of commercially or industrially zoned land.
City Code Section 18.20.010 provides,
18.20.010 Subdivisions requiring binding site plan.
Division of any land for sale or lease which is classified for commercial, business,
office, or industrial development, or which is to be developed as a manufactured home
Hearing Examiner
December 21, 2016
Page 4of5
park shall be required to obtain an approved binding site plan in accordance with this
and other ordinances of the city.
Emphasis added.
Additional provisions of the City Code demonstrate that short plats and binding site plans are not
mutually exclusive. City Code Section 18.05.010 defines "short plat" as follows:
"Short plat" means a final drawing of the short subdivision and dedication prepared
for filing for record with the county auditor and containing all elements and
requirements set forth for short subdivisions in this title and as required by state law.
Short plat applies to conventional and cluster subdivisions, cottage housing, zero lot
line townhouse development, and small lot detached development of nine or fewer
lots, as well as binding site plans.
(Emphasis added.) Under the plain language of this section, a "short plat applies to ... a binding
site plan." The two may coexist, they are not exclusive of each other. The City's Code
Interpretation simply ignores this City Code language. Yet, when interpreting a statute or ordinance,
all words must be given meaning. Am. Legion Port No. 149, .ntpra, 164 Wn.2d at 585-586.
Under these provisions, the plain language of the City Code allows a short subdivision of the
Property, which is zoned for commercial and industrial uses pursuant to the Concomitant
Agreement. Chapter 18.30, governing short plats, does not exclude commercial and industrially
zoned land from the short plat process. Similarly, Section 18.20.010 on its face does not prohibit
the short platting of commercial or industrial property. Indeed, at most, this section allows a
subdivision application to be submitted along with a BSP for commercial or industrial land. Finally,
the definition of "short plat" demonstrates that short plats and BSPs are not mutually exclusive.
Reading all of these provisions together and giving effect to each word, the City Code allows a short
subdivision of the Property in addition to a BSP. The Code Interpretation argues that this reading
creates an absurd result and renders the BSP regulations superfluous. This is not the case. Since a
short subdivision vests under state law, while a BSP does not, there are valid reasons why an
applicant may choose to submit both applications. The subdivision application would not be a
"waste" as the City asserts.
iii. State Law Requirements
The City Code must also be interpreted to allow short subdivision of the Property to render
it consistent with state law and preserve its constitutionality. RCW Chapter 58.17 was adopted to
regulate the subdivision of land in accordance with standards established by the state. RCW
58.17.010. This Chapter requires a local government to adopt procedures for the "summary
approval of short plats and short subdivisions." RCW 58.17.060(1). In addition, this Chapter
provides that "[a] city, town, or county may adopt by ordinance procedures for the divisions of land
by use of a binding site plan as an alternative to the procedures [for subdivisions] required by this
chapter" for, among other things, commercially or industrially zoned properties. RCW 58.17.035
(emphasis added). RCW Chapter 58.17 does not define "alternative," but the dictionary definition
Hearing Examiner
December 21, 2016
Page 5 of 5
of "alternative" is "offering or expressing a choice."' The Code Interpretation asserts that the word
"alternative" means that the processes are mutually exclusive. But, this interpretation ignores the
dictionary definition of "alternative." Contrary to the City's claim, nothing in RCW 58.17.035
authorizes a local government to require that the binding site plan process be used to the exclusion
of the subdivision process. If the City Code is interpreted to prohibit short plats on commercially or
industrially zoned properties, then it "prohibits what state law permits." This results in an unlawful
conflict with state law. HJS Deu, supra, 148 Wn.2d at 482. The City Code should be harmonized
with state law, not interpreted to create an unconstitutional conflict. City of Tacoma v. Luvene, 118
Wn.2d 826, 841, 827 P.2d 1374 (1992) ("If possible, an enactment must be interpreted in a manner
which upholds its constitutionality.").
For these reasons, the City's Code Interpretation should be reversed. The Applicant
reserves its right to submit evidence and make additional further argument during the appeal
proceedings in this matter.
4. A ellant's Contact Irtfortnati n
Appellant may be contacted through its legal counsel, John C. McCullough and Courtney
Kaylor, McCullough Hill Leary, P.S., 701 Fifth Avenue, Suite 6600, Seattle, WA 98104, (2016) 812-
3388 (telephone), (206) 812-3389(facsimile),;ack@mbsea_ttle.com, courtne mhseattle.c
5. Fee
The appeal fee of $183.50 is enclosed.
Sincerely,
a❑ C. McCullough
Enclosures
cc: Mark Orthmann
Brian Davis
Client
-! Ll� 1� iR.. It
- � CITY OF
Federal Way
DEPARTMENT OF COMMUNITY DEVELOPMENT
INTERPRETATION NO.16-02
Issuance Date: December 12, 2016
I. Request.
CITY HALL
33325 8th Avenue South
Federal Way, WA 98003-6325
(253) 835-7000
www. cityoffederalway.. com
Jim Ferrell, Mayor
By letter dated November 14, 2016, John C. McCullough, Esq. of McCullough Hill Leary PS, on
behalf of Federal Way Campus LLC ("Applicant"), requested a formal interpretation of the
Federal Way Revised Code ("FWRC") regarding the following issues:
1. Whether Process I, II, III, or IV applications vest developments identified in the Federal
Way zoning code and other land use control ordinances in effect on the date the complete
applications are submitted, and whether binding site plan and short plat applications vest
such developments under those processes.
2. Whether a short subdivision application (in addition to a binding site plan application)
may be submitted, accepted, and processed to segregate property that is zoned for
commercial, business, office, or industrial development.
II. Summary.
Based upon the analysis set forth herein, the Director of Community Development ("Director")
hereby issues the following interpretation in response to the Applicant's request:
2.1 Pursuant to FWRC 19.15.045(4), a fully completed Process I, II, III, or IV
application vests the proposal to the zoning codes and other land use control ordinances in effect
on the land at the time the application has been submitted to the City; however, applications for
binding site plans and short subdivisions are not designated by the City's code as use process
applications under Process I, II, III or IV. Whether and to what extent applications for these
categories of local land use approvals trigger vested rights is governed exclusively by state law
rather than by the City's local regulations.
1
2.2 A short subdivision application cannot be used to segregate property zoned for
commercial, business, office, or industrial development under the FWRC. Pursuant to FWRC
18.20.010, a binding site plan application is the mandatory and exclusive means by which to
segregate properties zoned for these use categories. The City's code does not contemplate, much
less expressly authorize, separate binding site plan and short subdivision applications to be
submitted and processed concurrently for the same site.
III. Authority and Scope.
FWRC 19.50.010 authorizes the Director of Community Development to interpret the
application or intent of development regulations or procedures in the FWRC.1
The scope of this interpretation is expressly limited to addressing the issues identified above, and
does not constitute a decision or determination regarding any application submitted by the
Applicant to the City. Because this interpretation is limited to interpreting the provisions of the
Federal Way Revised Code, the Director does not hereby address or otherwise render any related
determinations requested by the Applicant. Without limitation of the foregoing, the Director
expressly disclaims any attempt by the Applicant or any other party to use or construe this
interpretation for any other purpose.
IV. Criteria.
Pursuant to FWRC 19.50.040(2), this interpretation is informed by and consistent with the
following criteria for construing the relevant provisions of the City's code:
(a) The defined or the common meaning, as applicable, of the
words in the provision;
(b) The general purpose of the provision as expressed in the
provision; and
(c) The logical or likely meaning of the provision viewed in
relation to the comprehensive plan, this title, the Federal Way
Revised Code as a whole, or other plans and studies prepared or
adopted by the city.
` FWRC 19.50.010 limits interpretations of development regulations and procedures to Title 19 FWRC;
however, due to the interplay between Titles 18 and 19 FWRC, the Director issues this interpretation of both those
titles to ensure clarity of these provisions for both the Applicant and future development in the City.
V. Analysis.
5.1 Although Process I, II, III, and IV applications vest pursuant to FWRC
19.15.045, short plat and binding site plan applications do not vest under that section
because those applications are not subject to Process I, II, III or IV.
The City has adopted and codified at FWRC 19.15.045(4) a local vesting provision for specified
categories of land use applications:
Vesting. A proposed use process I II III or IV a lication shall
vest to and be considered under the zoning code and other land use
control ordinances in effect on the land at the time a full
cvm le,ted -application for use process I II III or IV has been
submitted to the city. In the event that the application is deemed
incomplete, the use process I, II, III, or IV application shall vest to
those codes in effect on the date that all requested supplemental or
specific information is submitted. A complete application shall be
defined as set forth in FWRC 19.15.040 and based on requirements
in related handouts. Vested rights shall not be waivable pursuant to
the vested rights doctrine.
FWRC 19.15.045(4) (emphasis added).
5.1.1 Process I, II, III, and IV applications vest pursuant to FWRC
19.15.045(4). With respect to the first part of the Applicant's request, the Director interprets
FWRC 19.15.045(4) as vesting process I, II, III and IV applications to the zoning code and other
land use control ordinances in effect on the subject property at the time a complete application
for a use process of these types is submitted to the City. The provisions of FWRC 19.15.045(4)
are unambiguous in this regard and must be afforded their clear intent. See, e.g., Sleasman v. City
of Lacey, 159 Wn.2d 639, 643, 151 P.3d 990 (2007) ("An unambiguous ordinance will be
applied by its plain meaning"). In sum, complete applications for process I, II, III, and IV
applications trigger local vested rights under the City's code.
5.1.2 Binding site plan and short subdivision applications do not vest
pursuant to FWRC 19.15.045(4). In answer to the second part of the Applicant's request, the
vesting afforded by FWRC 19.15.045(4) does not extend to applications for binding site plans or
short subdivisions. By its plain terms, the scope of FWRC 19.15.045(4) is expressly limited to
applications for land use processes I, II, III, and IV. Id. Short subdivision and binding site plan
applications are not subject to those review processes and therefore do not vest under FWRC
19.15.045(4).
3
The City's development code designates several categories of land use approvals as being
subject to the use process types variously identified in the FWRC. These include Chapter 19.55
FWRC (Process I, Director's Approval); Chapter 19.60 FWRC (Process II, Site Plan Review);
Chapter 19.65 FWRC (Process III, Project Approval); and Chapter 19.70 FWRC (Process IV,
Hearing Examiner). These processes are implicated only when a specific section of the FWRC
requires such use process review.
Significantly, no provision of the City's code purports to designate binding site plan applications
or short subdivision applications as Process I, II, III; or IV. To the contrary, the FWRC
establishes a distinct, specific review procedure for such applications:
The general procedure for processing an application for a
short subdivision [and binding site plan]2 consists of the following
steps:
(1) An optional preapplication conference between the proponent
and city staff to discuss land use, site design, transportation, and
environmental issues.
(2) Review of the short subdivision application to determine
whether or not the application is complete and acceptable for
filing.
(3) Review of the application by the department of community
development services, public works department, Lakehaven utility
district, city of Tacoma public works department, and county
department of public health, if septic systems are to be utilized.
(4) Approval, approval with conditions, or denial of the short
subdivision by the director of the department of community
development services.
(5) Review of engineering drawings for required public
improvements.
(6) Approval of engineering plans by public works director.
(7) Substantial completion of required improvements.
(8) Recording of short subdivision in the office of the county
division of elections and records.
FWRC 18.30.010.
2 Pursuant to FWRC 18.20.020(3) applications for binding site plans are processed the same way a short
subdivision application is processed pursuant to Chapter 18.30 FWRC.
2
FWRC 18.30.120 prescribes additional procedures for the Director to follow when processing a
short subdivision or binding site plan application—e.g., the initial decision on the short
subdivision [or binding site plan] application is based on written comments and information,
according to FWRC 18.30.110; appeals are decided by the hearing examiner after a public
hearing, pursuant to FWRC 18.30.140 et seq.; and the short subdivision application [or binding
site plan application] is processed as specified in FWRC 18.30.130 et seq. Nothing in the City's
regulations specifically governing short subdivisions (Chapter 18.30 FWRC) or binding site
plans (Chapter 18.20 FWRC) reference any particular process type, much less indicate that
applications for such segregations of land are subject to any of the processes identified in Title
19 FWRC. Because the FWRC identifies a distinct review process for short subdivision and
binding site plan applications, they are not subject to —or reviewed under —Process I, II, III, or
IV.
The vesting mandate of FWRC 19.15.045(4) applies by its terms exclusively to those categories
of land use applications that are subject to and reviewed under Process I, II, III, or IV. No other
provision of the FWRC purports to alter or otherwise supplement the vested rights framework set
forth in that subsection. Because the City's regulations governing short subdivisions and binding
site plans neither require nor contemplate review under .Process I, II, III, or IV, applications for
land segregation using those mechanisms do not vest pursuant to FWRC 19.15.045(4). A
contrary interpretation would violate basic principles of ordinance construction by effectively
reading language into the City's code that does not actually exist. Cf. Jenkins v. Bellingham
Municipal Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981).
In sum, applications for binding site plans and short subdivisions do not vest under FWRC
19.15.045(4). The extent of vested rights, if any, related to applications of this type is governed
entirely by state law rather than the City's code.
5.2 The binding site plan process is the exclusive method of segregating
commercial properties in the City, and a short subdivision application cannot be processed
concurrently with a binding site plan application for the same site under the FWRC.
The Applicant's second inquiry asks whether a short subdivision application may —concurrently
with and in addition to a binding site plan application —be submitted, accepted, and processed to
segregate property that is zoned for commercial, business, office, or industrial development. The
Director answers this question in the negative. Under the City's regulations, a binding site plan is
the exclusive means of dividing property zoned for commercial, business, office, or industrial
development under the FWRC.
Pursuant to RCW 58.17.035, the City has adopted procedures for the use of binding site plans as
an alternative to the otherwise -applicable process for subdividing land. These regulations are
5
1
codified at Chapter 18.20 FWRC. The scope and applicability of the City's binding site plan
procedures are defined at FWRC 18.20.010:
Division of any land for sale or lease which is classified for
commercial, business, office, or industrial development, or which
is to be developed as a manufactured home park shall be required
to obtain an approved binding site plan in accordance with this and
other ordinances of the city. Binding site plans are required for
condominium development only where a division of land is
required to segregate property.
FWRC 18.20.010 (emphasis added.)
By its unambiguous terms, the language of this section has categorical effect: Division of "ate"
land classified for commercial, business, office, industrial or manufactured home park
development must utilize the binding site plan mechanism. Id. For several reasons, the FWRC
does not contemplate —much less allow —the submission and processing of a short plat
application concurrently with a binding site plan application for the same underlying property.
First, and most fundamentally, the City's binding site plan regulations were adopted under the
authority of RCW 58.17.035 (a provision of the state subdivision act) and must be reasonably
construed in accordance with that statute. RCW 58.17.035 clarifies that division of land using a
binding site plan is an "alternative to the procedures required by this chapter" for industrially and
commercially zoned properties. (Emphasis added.) The statute's reference to "the procedures of
this chapter" necessarily includes both regular subdivisions and the short subdivision procedures
codified at RCW 58.17.060. The term "alternative" is undefined by Chapter 58.17 RCW, but the
relevant dictionary definition of that term is "[o]ne or the other of two things." BLACK'S LAW
DICTIONARY (1990 ed.), p. 78 (emphasis added). As such, the clear import of RCW 58.17.035
is to allow for land to be divided using the alternative binding site plan process or through the
standard subdivision method —but not by utilizing both methods simultaneously. That binding
site plans are expressly exempt from the statutory process of subdivision further underscores this
conclusion. See RCW 58.17.040(4).
Second, the City's own regulations clarify beyond doubt that the binding site plan process
codified at Chapter 18.20 FWRC is intended to be separate and exclusive from the City's
subdivision and short subdivision procedures. Tracking the state law provisions above, FWRC
18.05.030(3) emphasizes that subdivision review is not required for "[d]ivisions of land into lots
or tracts classified for industrial or commercial use when the City has approved a binding site
plan for the use of the land[.]" Binding site plans are also referenced as a distinct method of
"land division" separate from conventional subdivisions. See FWRC 18.05.010. And the City's
0
code unequivocally defines binding site plans in the first instance as "divisions of land for sale or
ground lease for commercial, industrial, and manufactured home park use, and where land is
divided as part of condominium development." FWRC 18.05.010. The Code's definitions for
"subdivisions" and "short subdivision" omit any reference to the commercial, industrial and
manufactured home uses that are expressly enumerated in the binding site plan definition, further
underscoring that the property classified for such developments may pnly be divided through the
binding site plan process under the FWRC.
Finally, basic principles of ordinance construction weigh strongly against interpreting the FWRC
to allow for the simultaneous submittal and processing of binding site plan and short subdivision
applications for the same property. The primary rule of interpreting municipal ordinances is to
effectuate local legislative intent. Choi v. City of Fife, 60 Wn. App. 458, 461, 803 P.2d 1330
(1991). The code framework above clearly reflects the City Council's intent for the binding site
plan process set forth at Chapter 18.20 FWRC to function as a mutually exclusive alternative to
the conventional subdivision process —not as a concurrent procedure. A contrary interpretation
would also invite redundancy, waste, inefficiency, and potentially contradictory land use
permitting decisions —an absurd and nonsensical result inconsistent with longstanding
interpretive standards. See Alderwood Water Dist. v. Pope and Talbot, Inc., 62 Wn.2d 319, 321,
382 P.2d 639 (1963); Tahoma Audubon Soc., 128 Wn. App. at 682; Meridian Minerals Co. v.
King County, 61 Wn. App. 195, 206, 810 P.2d 31 (1991). Likewise, if an applicant could simply
avoid the City's binding site plan procedure by filing a short subdivision application, this
interpretation would essentially render the City's binding site plan regulations superfluous rather
than giving effect, as required, to the entire ordinance framework. Jones v. King County, 74 Wn.
App. 467, 476, 874 P.2d 853 (1994). All of these fundamental rules of interpretation reject any
suggestion that a short subdivision application may be submitted concurrently with a binding site
plan application for the same property.
VI. Conclusion.
Based upon the analysis above, the Director concludes as follows:
6.1 Pursuant to FWRC 19.15.045(4), a fully completed Process I, II, III, or IV
application vests to the zoning codes and other land use control ordinances in effect on the land
at the time the application has been submitted to the City; however, applications for binding site
plans and short subdivisions are not designated by the City's code as use process applications
under Process I, II, III, or IV and accordingly they do not fall within the scope of FWRC
19.15.045(4).
6.2 A binding site plan is the exclusive method under the City's regulations for
dividing properties zoned for commercial, industrial, and manufactured home uses. Separate
7
binding site plan and short subdivision applications cannot be submitted and processed
concurrently for the same site.
VII. Appeal.
Pursuant to FWRC 19.50.060, any person who is aggrieved by this interpretation may appeal to
the City's Hearing Examiner. A written notice of appeal must be delivered to the Community
Development Services Department within 14 calendar days following issuance of the
interpretation. The notice of appeal must indicate how the interpretation affects the appellant and
must present any relevant arguments or information on the correctness of the interpretation. The
notice of appeal must be accompanied by cash or a check, payable to the City of Federal Way, in
the amount of $183.50.
Dated this 12th day of December, 2016.
Brian Davis, Community Development Director
8
CITY OF - l
Federal Way
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 8th Avenue South
Federal Way WA 98003
253-835-7000; Fax 253-835-2609
www.cityoffederQlwov.com
DECLARATION OF DISTRIBUTION
1, l 7hereby declare, under penalty of perjury of the laws of the State of
Washington, that a:
❑ Notice of Land Use Application/Action
❑ Notice of Determination of Significance
(DS) and Scoping Notice
❑ Notice of Environmental Determination
of Nonsignificance (SEPA, DNS)
❑ Notice of Mitigated Environmental
Determination of Nonsignificance (SEPA,
MDNS)
❑ Notice of Land Use Application &
Optional DNS/MDNS
JO FWRC Interpretation
❑ Other
❑ Land Use Decision Letter
❑ Notice of Public Hearing before the
Hearing Examiner
❑ Notice of Planning Commission Public
Hearing
❑ Notice of LUTC/CC Public Hearing
❑ Notice of Application for Shoreline
Management Permit
❑ Shoreline Management Pemnit
❑ Adoption of Existing Environmental
Document
was 0 mailed 0 faxed Oa e-mailed and/or ❑ posted to or at each of the attached addresses on
)"�- 1_'�> 2016.
Project Name
File Number(s)
Signature
-�zl�0, re T,
lOt—>g
Date )a-l3-Jlam
K:\CD Administration Files\Declaration of Distribution.doc/Last printed 1 /8/2015 10:07:00 AM
41k
CITY OF
Federal Way
NOTICE OF DEPARTMENT OF COMMUNITY DEVELOPMENT
INTERPRETATION #16-02
Citation of Code Provision
By letter dated November 14, 2016, John C. McCullough, Esq. of McCullough Hill Leary PS, on behalf
of Federal Way Campus LLC ("Applicant"), requested a formal interpretation of the Federal Way
Revised Code ("FWRC") regarding the following issues:
1. Whether Process I, H, III, or IV applications vest developments identified in the Federal Way
zoning code and other land use control ordinances in effect on the date the complete applications
are submitted, and whether binding site plan and short plat applications vest such developments
under those processes.
2. Whether a short subdivision application (in addition to a binding site plan application) may be
submitted, accepted, and processed to segregate property that is zoned for commercial, business,
office, or industrial development.
Summary Statement of Interpretation
Based upon the analysis set forth in the Interpretation, the Director of Community Development
("Director") hereby issues the following interpretation in response to the Applicant's request:
2.1 Pursuant to FWRC 19.15.045(4), a fully completed Process I,11,111, or IV application vests the
proposal to the zoning codes and other land use control ordinances in effect on the land at the
time the application has been submitted to the City; however, applications for binding site plans
and short subdivisions are not designated by the City's code as use process applications under
Process 1,11,111 or IV. Whether and to what extent applications for these categories of local land
use approvals trigger vested rights is governed exclusively by state law rather than by the City's
local regulations.
2.2 A short subdivision application cannot be used to segregate property zoned for commercial,
business, office, or industrial development under the FWRC. Pursuant to FWRC 18.20.010, a
binding site plan application is the mandatory and exclusive means by which to segregate
properties zoned for these use categories. The City's code does not contemplate, much less
expressly authorize, separate binding site plan and short subdivision applications to be submitted
and processed concurrently for the same site.
Date of Interpretation
December 12, 2016
Availability of Official File
The official project file (#16-105859-00-UP) is available for review at the City of Federal Way
Department of Community Development (Federal Way City Hall, 33325 8t' Avenue South, Federal Way,
WA 98063-9718), 253-835-2607, or ermiteenter cit offederalwa .corn, from 8:00 a.m. to 5:00 p.m.,
Monday through Friday.
Right to Appeal
Any person who is aggrieved by this interpretation may file a written letter of appeal to the Community
Development Director, indicating how the interpretation affects them and present any relevant arguments
or information on the correctness of the interpretation, within 14 days of the issuance of the decision. The
appellant shall include the appeal fee as established by the city. The appeal will not be accepted unless the
required fee accompanies it.
An appeal of this interpretation will be reviewed and decided upon using the process for appeals outlined
in FWRC 19.50.060 and Chapter 19.70 FWRC.
Deadline for Filing an Appeal
5:00 p.m., December 27, 2016
City Staff Contact
Jim Harris, Planner, 253-835-2652, orjim.harris@cityoffederalway.com
Published in the Federal Way Mirror on December 16, 2016.
Tamara Fix
From: Jennifer Anderson <jnderson@fedwaymirror.com>
Sent: Tuesday, December 13, 2016 9:22 AM
To: Tamara Fix
Subject: Re: Legal Notice
Got it, thanks!
Jennifer Anderson
Advertising Sales Consultant
Direct: 253-946-2890
Internal: 35602
Fax: 253-925-5750
31919 1st Ave S, Ste 101, Federal Way, WA 98003
J
Sound Publishing
Map Print Rates online Rates Media kit Sound Infra
On Tue, Dec 13, 2016 at 9:13 AM, <tamaraf cat cit} affedcl-alAg ,.comp wrote:
Please publish the attached legal notice (Interpretation 16-02, 16-105859) in Friday's (Dec. 16, 2016) issue.
Please confirm and issue an affidavit of publication. Thanks!
1
10
CITY OF f 7 '
Federal Way
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 8th Avenue South
Federal Way WA 98003
253-835-7000; Fax 253-835-2609
www.cifyoffederalwcty.com
DECLARATION OF DISTRIBUTION
hi
I, 1 IrvNirl_ ,?� hereby declare, under penalty of perjury of the laws of the State of
Washington, that a:
❑ Notice of Land Use Application/Action
❑ Notice of Determination of Significance
(DS) and Scoping Notice
❑ Notice of Environmental Determination
of Nonsignificance (SEPA, DNS)
❑ Notice of Mitigated Environmental
Determination of Nonsignificance (SEPA,
MDNS)
❑ Notice of Land Use Application &
Optional DNS/MDNS
FWRC Interpretation
❑ Other
❑ Land Use Decision Letter
❑ Notice of Public Hearing before the
Hearing Examiner
❑ Notice of Planning Commission Public
Hearing
❑ Notice of LUTC/CC Public Hearing
❑ Notice of Application for Shoreline
Management Permit
❑ Shoreline Management Pernit
❑ Adoption of Existing Environmental
Document
was X mailed ❑ faxed ❑ e-mailed and/or ❑ posted to or at each of the attached addresses on
I 0\ - ) 3 , 20146.
Project Name
File Number(s)
Signature Date - —%
K:\CD Administration Files\Declaration of Distribution.doc/Last printed 1 /8/2015 10:07:00 AM
44k
CITY OF
Federal Way
NOTICE OF DEPARTMENT OF COMMUNITY DEVELOPMENT
INTERPRETATION #16-02
Citation of Code Provision
By letter dated November 14, 2016, John C. McCullough, Esq. of McCullough Hill Leary PS, on behalf
of Federal Way Campus LLC ("Applicant"), requested a formal interpretation of the Federal Way
Revised Code ("FWRC") regarding the following issues:
1. Whether Process I, II, III, or IV applications vest developments identified in the Federal Way
zoning code and other land use control ordinances in effect on the date the complete applications
are submitted, and whether binding site plan and short plat applications vest such developments
under those processes.
2. Whether a short subdivision application (in addition to a binding site plan application) may be
submitted, accepted, and processed to segregate property that is zoned for commercial, business,
office, or industrial development.
Summary Statement of Interpretation
Based upon the analysis set forth in the Interpretation, the Director of Community Development
("Director") hereby issues the following interpretation in response to the Applicant's request:
2.1 Pursuant to FWRC 19.15.045(4), a fully completed Process I, II, III, or IV application vests the
proposal to the zoning codes and other land use control ordinances in effect on the land at the
time the application has been submitted to the City; however, applications for binding site plans
and short subdivisions are not designated by the City's code as use process applications under
Process 1, II, III or IV. Whether and to what extent applications for these categories of local land
use approvals trigger vested rights is governed exclusively by state law rather than by the City's
local regulations.
2.2 A short subdivision application cannot be used to segregate property zoned for commercial,
business, office, or industrial development under the FWRC. Pursuant to FWRC 18.20.010, a
binding site plan application is the mandatory and exclusive means by which to segregate
properties zoned for these use categories. The City's code does not contemplate, much less
expressly authorize, separate binding site plan and short subdivision applications to be submitted
and processed concurrently for the same site.
Date of Interpretation
December 12, 2016
Availability of Official File
The official project file (#16-105859-00-UP) is available for review at the City of Federal Way
Department of Community Development (Federal Way City Hall, 33325 8"' Avenue South, Federal Way,
WA 98063-9718), 253-835-2607, or permitcenteE@cityoffederalway.com, from 8:00 a.m. to 5:00 p.m.,
Monday through Friday.
Right to Appeal
Any person who is aggrieved by this interpretation may file a written letter of appeal to the Community
Development Director, indicating how the interpretation affects them and present any relevant arguments
or information on the correctness of the interpretation, within 14 days of the issuance of the decision. The
appellant shall include the appeal fee as established by the city. The appeal will not be accepted unless the
required fee accompanies it.
An appeal of this interpretation will be reviewed and decided upon using the process for appeals outlined
in FWRC 19.50.060 and Chapter 19.70 FWRC.
Deadline for Filing an Appeal
5:00 p.m., December 27, 2016
City Staff Contact
Jim Harris, Planner, 253-835-2652, orjim.harris@cityoffederalway.com
Published in the Federal Way Mirror on December 16, 2016.
1�kCITY OF
Federal Way
CITY HALL
33325 8th Avenue South
Federal Way, WA 98003-6325
Jack McCullough
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
printed on recycled paper
CITY OF
t Federal Way
CITY HALL
33325 8th Avenue South
Federal Way, WA 98003-6325
Courtney Kaylor, Attorney at Law
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
0 printed on recycled paper
FILE
4ik
CITY OF
Federal Way
NOTICE OF DEPARTMENT OF COMMUNITY DEVELOPMENT
INTERPRETATION #16-02
Citation of Code Provision
By letter dated November 14, 2016, John C. McCullough, Esq. of McCullough Hill Leary PS, on behalf
of Federal Way Campus LLC ("Applicant"), requested a formal interpretation of the Federal Way
Revised Code ("FWRC") regarding the following issues:
1. Whether Process I, II, III, or IV applications vest developments identified in the Federal Way
zoning code and other land use control ordinances in effect on the date the complete applications
are submitted, and whether binding site plan and short plat applications vest such developments
under those processes.
2. Whether a short subdivision application (in addition to a binding site plan application) may be
submitted, accepted, and processed to segregate property that is zoned for commercial, business,
office, or industrial development.
Summary Statement of Interpretation
Based upon the analysis set forth in the Interpretation, the Director of Community Development
("Director") hereby issues the following interpretation in response to the Applicant's request:
2.1 Pursuant to FWRC 19.15.045(4), a fully completed Process I, II, III, or IV application vests the
proposal to the zoning codes and other land use control ordinances in effect on the land at the
time the application has been submitted to the City; however, applications for binding site plans
and short subdivisions are not designated by the City's code as use process applications under
Process I, II, III or IV. Whether and to what extent applications for these categories of local land
use approvals trigger vested rights is governed exclusively by state law rather than by the City's
local regulations.
2.2 A short subdivision application cannot be used to segregate property zoned for commercial,
business, office, or industrial development under the FWRC. Pursuant to FWRC 18.20.010, a
binding site plan application is the mandatory and exclusive means by which to segregate
properties zoned for these use categories. The City's code does not contemplate, much less
expressly authorize, separate binding site plan and short subdivision applications to be submitted
and processed concurrently for the same site.
Date of Interpretation
December 12, 2016
Availability of Official File
The official project file (#16-105859-00-UP) is available for review at the City of Federal Way
Department of Community Development (Federal Way City Hall, 33325 8fl' Avenue South, Federal Way,
WA 98063-9718), 253-835-2607, or permitcenter@cityoffederalway.com, from 8:00 a.m. to 5:00 p.m.,
Monday through Friday.
Right to Appeal
Any person who is aggrieved by this interpretation may file a written letter of appeal to the Community
Development Director, indicating how the interpretation affects them and present any relevant arguments
or information on the correctness of the interpretation, within 14 days of the issuance of the decision. The
appellant shall include the appeal fee as established by the city. The appeal will not be accepted unless the
required fee accompanies it.
An appeal of this interpretation will be reviewed and decided upon using the process for appeals outlined
in FWRC 19.50.060 and Chapter 19.70 FWRC.
Deadline for Filing an Appeal
5:00 p.m., December 27, 2016
City Staff Contact
Jim Harris, Planner, 253-835-2652, orjim.harris@cityoffederalway.com
Published in the Federal Way Mirror on December 16, 2016.
�1
�A-
CITY OF
Federal Way
NOTICE OF DEPARTMENT OF COMMUNITY DEVELOPMENT
INTERPRETATION #16-02
Citation of Code Provision
By letter dated November 14, 2016, John C. McCullough, Esq. of McCullough Hill Leary PS, on behalf
of Federal Way Campus LLC ("Applicant"), requested a formal interpretation of the Federal Way
Revised Code ("FWRC") regarding the following issues:
Whether Process I, II, III, or IV applications vest developments identified in the Federal Way
zoning code and other land use control ordinances in effect on the date the complete applications
are submitted, and whether binding site plan and short plat applications vest such developments
under those processes.
2. Whether a short subdivision application (in addition to a binding site plan application) may be
submitted, accepted, and processed to segregate property that is zoned for commercial, business,
office, or industrial development.
Summary Statement of Interpretation
Based upon the analysis set forth in the Interpretation, the Director of Community Development
("Director") hereby issues the following interpretation in response to the Applicant's request:
2.1 Pursuant to FWRC 19.15.045(4), a fully completed Process I, II, III, or IV application vests the
proposal to the zoning codes and other land use control ordinances in effect on the land at the
time the application has been submitted to the City; however, applications for binding site plans
and short subdivisions are not designated by the City's code as use process applications under
Process I, II, III or IV. Whether and to what extent applications for these categories of local land
use approvals trigger vested rights is governed exclusively by state law rather than by the City's
local regulations.
2.2 A short subdivision application cannot be used to segregate property zoned for commercial,
business, office, or industrial development under the FWRC. Pursuant to FWRC 18.20.010, a
binding site plan application is the mandatory and exclusive means by which to segregate
properties zoned for these use categories. The City's code does not contemplate, much less
expressly authorize, separate binding site plan and short subdivision applications to be submitted
and processed concurrently for the same site.
Date of Interpretation
December 12, 2016
hA
Availability of Official File
The official project file (#16-105859-00-UP) is available for review at the City of Federal Way
Department of Community Development (Federal Way City Hall, 33325 8"' Avenue South, Federal Way,
WA 98063-9718), 253-835-2607, or permitcenter&cityoffederalway.corn, from 8:00 a.m. to 5:00 p.m.,
Monday through Friday.
Right to Appeal
Any person who is aggrieved by this interpretation may file a written letter of appeal to the Community
Development Director, indicating how the interpretation affects them and present any relevant arguments
or information on the correctness of the interpretation, within 14 days of the issuance of the decision. The
appellant shall include the appeal fee as established by the city. The appeal will not be accepted unless the
required fee accompanies it.
An appeal of this interpretation will be reviewed and decided upon using the process for appeals outlined
in FWRC 19.50.060 and Chapter 19.70 FWRC.
Deadline for Filing an Appeal
5:00 p.m., December 27, 2016
City Staff Contact
Jim Harris, Planner, 253-835-2652, orj'im.harris@cityoffederalway.com
Published in the Federal Way Mirror on December 16, 2016.
.4k
CITY
Federalo.
Way
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 8th Avenue South
Federal Way WA 98003
253-835-7000; Fax 253-835-2609
www.cityoffederalway.com
DECLARATION OF DISTRIBUTION
I Jesse Me/ 'K `� hereby declare, under penalty of perjury of the laws of the State of
Washington, that a:
❑ Notice of Land Use Application/Action ❑ Land Use Decision Letter
❑ Notice of Determination of Significance
(DS) and Scoping Notice
❑ Notice of Environmental Determination
of Nonsignificance (SEPA, DNS)
❑ Notice of Mitigated Environmental
Determination of Nonsignificance (SEPA,
MDNS)
❑ Notice of Land Use Application &
,Optional DNS/MDNS
LI FWRC Interpretation
❑ Other
❑ Notice of Public Hearing before the
Hearing Examiner
❑ Notice of Planning Commission Public
Hearing
❑ Notice of LUTC/CC Public Hearing
❑ Notice of Application for Shoreline
Management Permit
❑ Shoreline Management Permit
❑ Adoption of Existing Environmental
Document
was ❑ mailed ❑ faxed ❑ e-mailed and/or ❑ posted to or at each of the attached addresses on
, 2016.
Project Name
File Number(s)
Signature CL.- A
Date Iz Z ZoC
i
K:\CD Administration Files\Declaration of Distribution.doc/Last printed 12/18/2015 1:48:00 PM
Posted Sites:
Federal Way City Hall: 33325 8th Ave South
Federal Way Library: 34200 1 It Way South
Federal Way 320th Library: 848 S. 320th St
K:\CD Administration Files\Declaration of Distribution.doc/Last printed 12/18/2015 1:48:00 PM
41kCITY 10':tt!=P
OF
Federal Way
APPLICATION No(s)
MASTER LAND USE APPLICATION
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 81h Avenue South
Federal Way, WA 98003-6325
253-835-2607;Fax 253-835-2609
www. c i tyo f iedcra l way.cam
RECEIVED
Date NOV 14 2016
Project Name Federal Wa`= Cam us Code Inter rettaion CITY OF FEDERAL WAY
Property Address/Location 32901 Weyerhaeuser \X av South, Federal Way, WA 98001
Parcel Numbers) _ 162104-9056, 162104-9013, 162104-9030, 228500-0010
Project Description Re9uest for Code Interpretation
PLEASE PRINT
Type of Permit Required
Annexation
Binding Site Plan
Boundary Line Adjustment
Comp Plan/Rezone
Land Surface Modification
Lot Line Elimination
Preapplication Conference
X Process I (Director's Approval) a,,jyy
Process II (Site Plan Review)
Process III (Project Approval)
Process IV (Hearing Examiner's Decision)
Process V (Quasi -Judicial Rezone)
Process VI
SEPA w/Proj ect
SEPA Only
Shoreline: Variance/Conditional Use
Short Subdivision
Subdivision
Variance: Commercial/Residential
Required Information
CP-1, OP-1 Zoning Designation
Corp. Park Comprehensive Plan Designation
N/A Value of Existing Improvements
N/A Value of Proposed Improvements
International Building Code (IBC):
N/A Oocupancy Type
N/A Construction Type
Applicant
Name: Federal \Vay Campus LLC
Address: 8847 Imperial Highwav, Suite H
City/State: Dativnev, CA
Zip: 90242
Phone:310-261-4382
Fax:
Email: tmessmer21/111.4
i d strialrgalup.com
Signature: f 17
AgeUt-(tlodifferent than Applicant)
Name: John C. McCullough, McCullough Hill Leafy PS
Address: 701 Fifth Avenue, Suite 6600
City/State: Seattle, WA
Zip: 98104
Phone: 206-812-3388
Fax: 206-812-3389
Email: jack@,,tnhseattle.com
Signature: ( l , /I r /,� , o1r A
Ownei
Name: Same as Applicant
Address:
City/State:
Zip:
Phone:
Fax:
Email:
Signature:
Bulletin #003 — January 1, 2011 Page 1 of 1 k:\Handouts\Master Land Use Application
MCCULLOUGH HILL LEAKY, PS
..FI_V_FD---
NOV 1.4 2016
November 14, 2016 CITY OF FEDERAL WAY
CDS
VIA ELECTRONIC MAIL
AND HAND DELIVERY
Brian Davis
Director, Department of Community Development
City of Federal Way
33325 8th Ave. S.
Federal Way, WA 98003
Re: Request for Code Interpretation
Dear Mr. Davis:
We represent Federal Way Campus LLC ("Applicant"), the owner of the former Weyerhaeuser
property ("Property"). Pursuant to Federal Way Municipal Code ("City Code" or "FWMC")
Chapter 19.50, the Applicant seeks a Code Interpretation. Consistent with the requirements of
FWMC 19.50.030, this application includes: (1) a completed master land use application (attached);
and (2) a written description that clearly states (a) the interpretation requested, (b) the applicable City
Code sections which the applicant requests the director to interpret and (c) relevant information and
arguments which support the requested interpretation.'
I. Inte retation Requested
The Applicant seeks a determination that:
Process I, II, III or IV applications (including the binding site plan ("BSP") application and
short subdivision application submitted on October 13, 2016) submitted for the Property
vest the development identified in the applications to the zoning code and other land use
control ordinances in effect on the date the complete applications are submitted; and
■ The City Code allows a short subdivision of the Property in addition to a BSP, the short
subdivision application was properly filed, and should be accepted and processed.
II. Factual Sac round
On October 13, 2016, the Applicant submitted the short subdivision and BSP applications. On
October 21, 2016, the City sent two letters to the Applicant. The City rejected the short subdivision
I FWMC 19.50.030 also requires that the application include "the fee established by the city." The Fee Schedule does
not specify a fee for a Code Interpretation. We inquired with your Department and were informed that there is no fee
for a Code Interpretation.
701 Fifth Avenue • Suite 6600 • Seattle, Washington 98104 • 206.812.3388 • Fax 206.812.3389 • wwwmhseattle.com
Brian Davis
November 14, 2016
Page 2 of 6
application, stating that a BSP is the "exclusive method to divide property that is zoned for
commercial, business, office or industrial development." The City also stated that if the Applicant
disagreed, then the Applicant could "apply for a formal administrative interpretation" concerning
the matter. The Applicant filed an appeal of the rejection of the short subdivision application to the
Hearing Examiner. On November 7, 2016, the City sent a letter to the Applicant in which it
responded that the rejection is not subject to administrative appeal and that a formal code
interpretation is an administrative remedy. This request for Code Interpretation is submitted in
response to the City's statement in its October 21 and November 7, 2016 letters.
III. Mplicable Code Sections
The Applicant requests an interpretation of Title 18 (subdivisions), Chapter 19.05 (definitions) and
Section 19.15.045(4) (vesting) of the City Code.
IV. Relevant Information and Argpments
A. Process I, II, III and IV applications vest development to the land use control
ordinances in effect at the time complete applications are submitted.
The Applicant requests an interpretation that, under the City Code, Process I, II, III or IV
applications submitted for the Property (including the BSP and short subdivision applications) vest
the development identified in the applications to the zoning code and other land use control
ordinances in effect on the date the complete applications are submitted.'
Local governments may adopt their own vesting rules. Erickson &Assocs. v. McLerran, 123 Wn.2d
864, 873, 872 P.2d 1090 (1994) ("Within the parameters of the doctrine established by statutory and
case law, municipalities are free to develop vesting schemes best suited to the needs of a particular
locality."); see also Potala Village Kirkland, LLC v. City of Kirkland, 183 Wn. App.191, 201, 334 P.3d
1143 (2014), review denied, 182 Wn.2d 1004, 342 P.3d 326 (2015) (recognizing that a local vesting
ordinance may specify an earlier vesting date than identified in state statute). The City has adopted a
vesting provision in City Code section 19.15.045(4). This provision states:
(4) Vesting. A 12roposed use 12rocess I II III or IV application shall vest to and be
considered under the zonina code and other land use control ordinances in effect ❑n the
land at the time a fully completed application for use process Imo, III, or IV has been
submitted to the city. In the event that the application is deemed incomplete, the use
process I, II, III, or IV application shall vest to those codes in effect on the date that all
requested supplemental or specific information is submitted. A complete application
shall be defined as set forth in FWRC 19,15.040 and based on requirements in related
handouts. Vested rights shall not be waivable pursuant to the vested rights doctrine.
2 The zoning and land use controls in effect on the Property are governed by the Weyerhaeuser Company Concomitant
Pre -Annexation Zoning Agreement, dated August 23, 1994, and the First Amendment to Weyerhaeuser Company
Concomitant Pre -Annexation Zoning Agreement, dated April 8, 2003 (collectively "Concomitant Agreement").
Brian Davis
November 14, 2016
Page 3 of 6
Emphasis added.
Under this provision, Process I, II, III or IV applications submitted for the Property vest the
development identified in the applications to the zoning code and other land use control ordinances
in effect on the date the complete applications are submitted. Specifically, BSP and short
subdivision applications have been submitted for a portion of the Property.' Each of these
development applications vest the development identified in the applications to the zoning code and
other land use control ordinances in effect on the date the complete applications were submitted.
B. The City Code allows a short subdivision of the Property.
The Applicant requests an interpretation that the City Code allows the short subdivision of the
Property in addition to the BSP submitted on October 13, 2016.
1. Principles of Statutory Interpretation
In interpreting a local ordinance, the plain meaning is controlling. Chelan County v. Nykreim, 146
Wn.2d 904, 926, 52 P.3d 1 (2002) ("when statutory language is plain and unambiguous, the statute's
meaning must be derived from the wording of the statute itself.") Absent ambiguity, the City must
apply the ordinance as written. Diehl v. Growth Management Hearings Board, 153 Wn.2d 207, 214, 103
P.3d 193 (2004) ("Absent ambiguity, a statute's meaning must be derived from the wording of the
statute itself without judicial construction or interpretation ... When statutory language is clear and
unequivocal, courts must assume that the legislature meant exactly what it said and apply the statute
as written."). To determine the plain meaning of an undefined term, courts may look to the
dictionary. HomeStreet, Inc. v. Dept of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009).
Also, all words must be given meaning. "A court must, when possible, give effect to every word,
clause and sentence of a statute.... The goal is to avoid interpreting statutes to create conflicts
between different provisions so that we achieve a harmonious statutory scheme." Am. Legion Post
No. 149 P. Dept. of Health, 164 Wn.2d 570, 585-586, 192 P.3d 306 (2008) (internal quotations and
citations omitted).
In addition,
Local jurisdictions may enact ordinances upon subjects already covered by state
legislation if their enactment does not conflict with state legislation. This court will
consider an ordinance to be constitutionally invalid on grounds of conflict if the
ordinance "'directly and irreconcilably conflicts with the statute."' If, however, the
ordinance and statute can be harmonized, no conflict will be found.
3 The BSP and short subdivision are subject to the provisions of City Code section 19.15.045(4). City Code sections
19.15.010 and 19.15.020 identify complete and partial exemptions from the requirements of Chapter 19.15 and the state
law which it implements, RCW 36.70B. While preliminary plats and boundary line adjustments are exempt from some
requirements relating to timing and notice, respectively, no other action under City Code Title 18 (subdivisions) is
exempt from any requirement of Chapter 19.15.
Brian Davis
November 14, 2016
Page 4 of 6
Unconstitutional conflict occurs when an ordinance permits what is forbidden by state
law or prohibits what state law permits.
HJS Dev. v. Pierce County, 148 Wn.2d 451, 482, 61 P.3d 1141 (2003)
2. City Code Provisions
City Code Title 18 governs subdivisions. Chapter 18.30 provides the process for short plat review
and approval. Chapter 18.20 addresses BSPs. There are no provisions in this Title that expressly
prohibit the short platting of commercially or industrially zoned land.
City Code Section 18.20.010 provides,
18.20.010 Subdivisions requiring binding site plan.
Division of any land for sale or lease which is classified for commercial, business, office,
or industrial development, or which is to be developed as a manufactured home park
shall be required to obtain an approved binding site plan in accordance with this and
other ordinances of the city.
Under the plain language of this section, some land divisions — namely, those for commercial,
business, office and industrial land — require a BSP.' However, nothing in this section prohibits a
subdivision and BSP from being submitted concurrently. Such an interpretation would read
language into this provision of the City Code that simply does not exist.
Additional provisions of the City Code demonstrate that short plats and BSPs are not mutually
exclusive. City Code Section 18.05.010 defines "short plat" as follows:
"Short plat" means a final drawing of the short subdivision and dedication prepared for
filing for record with the county auditor and containing all elements and requirements
set forth for short subdivisions in this title and as required by state law. Short plat applies
to conventional and cluster subdivisions, cottage housing, zero lot line townhouse
development, and small lot detached development of nine or fewer lots, as Well as
binding sit 1ans.
(Emphasis added.) Under the plain language of this section, a "short plat applies to ... a binding
site plan." The two may coexist; they are not exclusive of each other.
Under these provisions, the plain language of the City Code allows a short subdivision of the
Property, which is zoned for commercial and industrial uses pursuant to the Concomitant
Agreement. Chapter 18.30, governing short plats, does not exclude commercial and industrially
zoned land from the short plat process. Similarly, Section 18.20.010 on its face does not prohibit
the short platting of commercial or industrial property. Indeed, at most, this section allows a
4 The fact that "shall" is mandatory is not relevant. The question presented is not whether a BSP is required, but
whether a short subdivision may also be submitted.
Brian Davis
November 14, 2016
Page 5of6
subdivision application to be submitted along with a BSP for commercial or industrial land. Finally,
the definition of "short plat" demonstrates that short plats and BSPs are not mutually exclusive.
Reading all of these provisions together and giving effect to each word, the City Code allows a short
subdivision of the Property in addition to a BSP.
3. State Law Requirements
The City Code must also be interpreted to allow short subdivision of the Property to render it
consistent with state law and preserve its constitutionality. RCW Chapter 58.17 was adopted to
regulate the subdivision of land in accordance with standards established by the state. RCW
58.17.010. This Chapter requires a local government to adopt procedures for the "summary
approval of short plats and short subdivisions." RCW 58.17.060(1). In addition, this Chapter
provides that "[a] city, town, or county may adopt by ordinance procedures for the divisions of land
by use of a binding site plan as an alternative to the procedures [for subdivisions] required by this
chapter" for, among other things, commercially or industrially zoned properties. RCW 58.17.035
(emphasis added). RCW Chapter 58.17 does not define "alternative," but the dictionary definition
of "alternative" is "offering or expressing a choice.i5 Nothing in RCW 58.17.035 authorizes a local
government to require that the binding site plan process be used to the exclusion of the subdivision
process. If the City Code is interpreted to prohibit short plats on commercially or industrially zoned
properties, then it "prohibits what state law permits." This results in an unlawful conflict with state
law. HJS Dev., supra, 148 Wn.2d at 482. The City Code should be harmonized with state law, not
interpreted to create an unconstitutional conflict. City of Tacoma v. Luvene, 118 Wn.2d 826, 841, 827
P.2d 1374 (1992) ("If possible, an enactment must be interpreted in a manner which upholds its
constitutionality.").
4. Short Subdivision
Here, the Applicant submitted a short subdivision application in addition to the BSP application.
For the reasons previously discussed, the City Code allows a short subdivision of the Property in
addition to a BSP, the short subdivision application was properly filed, and should be accepted and
processed.
V. conclusion
For these reasons, the Applicant requests determinations that:
• Process I, II, III or IV applications (including the BSP and short subdivision applications)
submitted for the Property vest the development identified in the applications to the zoning
code and other land use control ordinances in effect on the date the complete applications
are submitted
5h=//www.mevdam-
%vebster.com/dicrion-ary/-altern:ative?Lltma ai =5 u ium- a tm nl
Brian Davis
November 14, 2016
Page 6 of 6
+ The City Code allows a short subdivision of the Property in addition to a BSP, the short
subdivision application was properly filed, and should be accepted and processed.
The Applicant reserves the right to submit additional information or argument relating to this Code
Interpretation request.
Sincerely,
C. McCullough
cc: Mark Orthmann
Client
4kCITY OF 10'::tS;P
Federal Way
APPLICATION NO(S)
MASTER LAND USE APPLICATION
(o - i os4443 -cam AD
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 8"' Avenue South
Federal Way, WA 98003-6325
253-835-2607;Fax 253-835-2609
www. ciiyoftedemlway. coin
RECEIVE►
Date NOV 14 2016
CITY OF FEDERAL. WAY
Project Name Federal V%ay Campus Code Interprettaion _ me
Property Address/Location 32901 Weyerhaeuser V`ay South, Federal Wav, V'A 98001
Parcel Numbers) 162104-9056, 162104-9013, 162104-9030, 228500-001 i)
Project Description Request for Code Inte retation
PLEASE PRINT
Type of Permit Required
Annexation
Binding Site Plan
Boundary Line Adjustment
Comp Plan/Rezone
Land Surface Modification
Lot Line Elimination
Preapplication Conference
X Process I (Director's Approval)
Process H (Site Plan Review)
Process III (Project Approval)
Process IV (Hearing Examiner's Decision)
Process V (Quasi -Judicial Rezone)
Process VI
SEPA w/Proj ect
SEPA Only
Shoreline: Variance/Conditional Use
Short Subdivision
Subdivision
Variance: Commercial/Residential
Required Information
CP-I, OP-1 Zoning Designation
-Corp. Park Comprehensive Plan Designation
N/A Value of Existing Improvements
N/A Value of Proposed Improvements
International Building Code (IBC):
N/A Occupancy Type
NSA Construction Type
Applicant
Name: Federal \Vay Campus LLC
Address: 8847 Imperial Highway, Suite H
City/State: Downey, CA
Zip: 90242
Phone:310-261-4382
Fax:
Email: tmessrrier . indus altFgr up.com
Signature:
Age different than Applicant)
Name: John C. McCullough, McCullough Hill Leary PS
Address: 701 Fifth Avenue, Suite 6600
City/State: Seattle, WA
Zip: 98104
Phone:206-812-3388
Fax: 206-812-3389
Email: jack@nihseattle.corn
Signature: I f r d i /.. r) i1 9
Owner"
Name: Same as Applicant
Address:
City/State:
Zip:
Phone:
Fax:
Email:
Signature:
Bulletin #003 — January 1, 2011 Page 1 of 1 k:\Handouts\Master Land Use Application