HEX 18-002 Appeal of Interpretation1
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Examiner Phil Olbrechts
Motion Hearing:
January 16, 2019
BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY, WASHINGTON
In Re:
Appeal of Interpretation 18-01
by Save Weyerhaeuser Campus
in relation to the application for the
Greenline Business Park (file 17-105491)
I. INTRODUCTION.
No. 18-01
REPLY TO OPPOSITION OF THE
CITY OF FEDERAL WAY AND
FEDERAL WAY CAMPUS LLC
TO MOTION FOR DISMISSAL OF
INTERPRETATION
On November 27, 2018, Save Weyerhaeuser Campus (SWC) filed an appeal of
Interpretation No. 18-01 issued by the Federal Way Department of Community
Development ("DCD") on November 8, 2018. At Paragraph 4.2 of its appeal, SWC
asserted that the issuance of Interpretation 18-01 on November 8, 2018, was in error
� because FWRC 19.50.050(1) requires that such interpretation "shall be incorporated
into the director's decision on the application and be subject to the applicable notice
provisions for the decision."
On January 2, 2019, SWC moved for summary dismissal of Interpretation 18-01
based on the terms of Paragraph 4.2. The Hearing Examiner in his Prehearing Order
dated January 11, 2018, allowed Applicant Federal Way Campus LLC ("Applicant") and
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 1
LAW OFFICES OF
J. RICHARO ARAM9URU, PLLC
72031i0AVE., SUITE 2000
SEATTLE98104
{20 61625.9515
FAx(2006)682-1376
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the department that issued the interpretation, the Federal Way Department of
Community Development ("DCD") (collectively "Respondents") to file any opposition to
SWC's motion and SWC to file a reply by January 15, 2019.
This reply provides SWC's reply to the submissions of the Respondents. As will
be described herein, DCD prematurely issued its interpretation (thus requiring appeal
thereof) on the Applicant's request for interpretation instead of incorporating it in the
decision on the underlying land use proposal. The Examiner should dismiss the
interpretation without ;prejudice to allow its incorporation into the pending decision by
DCD on the land use application for the Greenline Business Park.
ll. STATEMENT OF FACTS.
The following are substantially uncontested facts regarding the issues presented
in this appeal.
In the fall of 2017, the Applicant and DCD conducted a preapplication
conference as required by Federal Way Revised Code (FWRC). See Attachment A to
SWC's Motion, a letter from the Applicant to the Director of the DCD.
On November 3, 2017, the City issued its "Preapplication Conference Summary",
which indicated that the Applicant was required to provide a fifty foot Managed Forest
Buffer ("MFB") at the north boundary of the Greenline Business Park. Attachment A at
page 2.
Subsequently, the applicant fled an application for the Greenline Business Park
under Federal Way File nos. 17-105489-00-UP & 17-105490-SE. Attachment A at
page 1. On May 18, 2018, the City determined that the Greenline Business Park
application was complete. Id. Also on May 18, 2018, the City issued a "Notice of
Master Land Use Application" which initiated a fourteen day comment period. The Site
Plan, Clearing and Grading Plans, Landscape Plan and Tree Retention plan submitted
with the complete application included a fifty foot MFB along the north property line,
consistent with the Preapplication Conference Summary. See Attachment 1 to
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 2
LAW OFFICES OF
J. RICHARD ARAMBURV PLLC
72a VDAVE., SMITE 2040
SEAT)TLE 90104
FAUX j206) 6B2-1376
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Aramburu Decl. SWC provided comment on the Greenline Business Park application,
which included the fifty foot MFB on the north side of the proposal. See Attachment 8
I to Motion.
On September 10, 2019, the Applicant filed a request for code interpretation with
DCD. Attachment A to Motion. That code interpretation request took issue with the
Preapplication Conference Summary's conclusion that the fifty foot MFB must be
included on the north side of the Greenline Business Park property, though the
complete application for the proposal already showed a fifty foot MFB in that location.
See Site 'Plan at Attachment 1 to Ararrmburu Decl. The request also sought an
interpretation concerning the potential extension of S. 3241h in the area.
Interpretation 18-01 was issued on November 8, 2018, responding to the
Applicant's interpretation request and specifying that an appeal of the decision must be
filed within fourteen days of November 8. A timely appeal was filed by SWC.
III. A MOTION FOR SUMMARY DISMISSAL OF THE INTERPRETATION IS
APPROPRIATE.
The Federal Way DCD contends that the Federal Way Hearing Examiner lacks
authority to issue a summary disposition of an appeal. This is incorrect.
The Hearing Examiner rules make clear that the Examiner has authority to
"consider and rule upon procedural and other motions appropriate to the proceedings."
Rule 4(b)(5). Washington case law establishes that administrative agencies have the
authority to issue summary determinations of an appeal.
However, the Washington Supreme Court has held "that a legislatively created
agency or board, when acting in a quasi-judicial capacity may employ summary
procedure if there is no genuine issue of material fact." Asarco v. Air Quality
Coalition, 92 Wash.2d 685, 697, 601 P.2d 501 (1979).
Eastlake Community Council v City of Seattle, 64 Wn.App. 273, 276, 823 P.2d 1132,
(1992). Such summary disposition provides judicial and administrative efficiency, and
saves the parties and the City time and expense. In the present case, the issue before
the Examiner is procedural, relating to the timing and review of interpretations, not the
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 3
LAW OFFICES OF
J. R]CNARO ARAMBURU, PL:LC
720 VDAVE., SUITE 2000
SEATTLE 98104
R206 625-9515
FAX(2 6) 882-5376
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substance of the interpretation request.
The Applicant contends that standards for summary judgment should apply, but
fails to allege any facts that are in dispute. The declaration from Ms. Kaylor does not
provide contested facts, supplying only existing documents there is no declaration
regarding facts from the City. Mere opinions or conclusions, without factual support, are
insufficient to support a motion for summary judgment. Roger Crane and Associates
Inc. v. Felice, 74 Wn.App. 769 (1994). While there certainly may be issues concerning
the merits of the interpretation itself, there are none regarding the limited issue of the
procedure to be applied. Those substantive issues may be resolved when they are
"incorporated into the director's decision on the application" under FWRC 19.50.050(1).
As described herein, the text of the interpretation request by the applicant establishes
the basic underlying facts and the relationship of that request to the underlying permit
application, consistent with the terms of FWRC 19.50.050. There are no contested
issues to be resolved.
IV. THE INTERPRETATION REQUEST IS RELATED TO LAND USE
APPLICATION File no. 17-105489-00-UP & 17-105490-SE.
Both DCD and the Applicant make much of the term "related to" as found in
FWRC 19.50.050(1). They claim that the code interpretation is not related to their
permit application for the Greenline Business Park. This is disputed by the applicant's
own interpretation request and the plans submitted to DCD.
First, the request for interpretation filed by the Applicant on September 10, 2018,
makes the relationship clear. In the very first sentence, the Applicant describes itself as
"the developer of the project known as the Greenline Business Park ("Project")." See
Attachment A to Motion. At the bottom of the first page, the Applicant states:
The Applicant has submitted a complete application for the Project (File
Nos. 17-105489-00-UP and 17-105490-00=SE).
Id. On the next page, the Applicant describes the Pre -Application Conference that was
held on the Project (November 3, 2017) and the Summary of that conference. The
28 LAW OFFICES OF
REPLY TO OPPOSITION TO MOTION J.77RICHARD 2G 3^OAVER SUITE2b00
FOR DISMISSAL OF INTERPRETATION - 4 { G(N6) 2-13
zos 13104
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applicant's own material confirms the relationship 'between the interpretation and the
Applicant's "Project."
Second, the Applicant's permit drawings, which include all elements of the
project including the Site Plan, Clearing and Grading Plans, Landscaping and other
plans, clearly show a fifty foot MFB along the entire north side of the project. See
Attachment 1 to the Aramburu Decl. Nowhere in the submitted plans is it indicated that
the fifty foot MFB might be deleted or that there was an alternate plan that eliminated
the north side MFB.
Third, the use of the phrase "related to" is a broader term than "included in" or
"part of that might have be used. Dictionary.com defines "related" as "associated;
connected." There is little question that the interpretation regarding the extent of the
Managed Forest Buffer is related to the application for a land use permit that includes
such a buffer area.
Fourth, the Respondents contend that the requirements for timing found in
FWRC 19.50.040 should control. However, the requirement to incorporate the
interpretation into the related land use decision makes review subject to the underlying
code provisions. The terms of FWRC 19.50.040 still apply to interpretations unrelated
to a project application.
Fifth, the context is important here. The Applicant seeks interpretation of a 1994
Preannexation Zoning Agreement applicable just to the Applicant's property, which
applies site specific provisions such as the MFB. See Attachment 1 to Aramburu Decl.,
page 2. This differs from an interpretation of a community wide code provision, such as
building height. Indeed, the DCD interpretation itself states that; "The CZA reflects a
unique zoning agreement for a unique site" and cites to the Federal Way
Comprehensive Plan for the proposition that: "The City will work with the seller, future
owners and the surrounding community to realize the property's potential, while
maintaining compatibility with the surrounding uses." Page 3, Subsection (c).
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 5
LAW OFFICES OF
J. RICMARO ARAM9URU., PLLC
720 3"nAVE„ SUITE 2000
SEAT)TLE 98104
FA(?2( {2a81682$137G
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Consideration of the interpretation and of the specifics of the Preannexation Zoning
Agreement is much better done in the context of review of a specific proposal rather
than in the narrow isolation of an abstract term.
In interpreting a local ordinance, the plain meaning is controlling. Chelan County
v. Nykreim 146 Wn.2d 904, 926, (2002). In addition, "A court must, when possible, give
effect to every word, clause or 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. Dept. of Health, 164 Wn.2d
570, 585, 5858-586 (2008).. The Federal Way City Council has clearly stated that
interpretations that relate to a land use applications will be "incorporated into the
director's decision on the application." There is nothing confusing, complicated or
difficult about this very simple concept, especially where it allows all contested issues
regarding the land use matter to be resolved at one time, in one hearing.
It is urged by Respondents that the DCD director be given considerable
discretion in deciding whether to incorporate the interpretation into the decision on the
underlying land use application. However, the argument fails at the very start because
the DCD Director never stated in his interpretation decision why he was not following
the terms of the city's ordinance; indeed, it appears that the Director never even
thought about whether to incorporate the decision or not. He certainly did not establish
that his decision was "a matter of policy, by its history enforcing the ordinance" as
required by Sleasman v. City of Lacey, 159 Wn.2d 639, 646 (2007) before granting
discretion. Rather, the position stated in the briefing is simply a "by-product of the
current' litigation," which cannot be used to boot -strap the Director's decision. Id.
Indeed Washington courts have held that
°`agency action cannot be sustained on post 'hoc rationalizations supplied during
judicial review." Tabor v. Joint Bd. for Enrollment of Actuaries, 566 F.2d 705,
710 (D.C.Cir.1977).
Somer v. Woodhouse, 28 Wn.App. 262, 272, 623 P.2d 1164, (Div. 2, 1981).
28 LAW OFFICES OF
REPLY TO OPPOSITION TO MOTION J. 7 PO HARD ARAM 97Rll, Pi LC
720 3"QAV�., SLIIT� 20fl❑
90104
FOR DISMISSAL OF INTERPRETATION - 6 S 06T 6 E-9515
F A�X (206) 662-1376
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1n addition, our Supreme Court has stated:
We have held that:
The acts of administering a zoning ordinance do not go back to the
questions of policy and discretion which were settled at the time of the
adoption of the ordinance. Administrative authorities are properly
concerned with questions of compliance with the ordinance, not with its
wisdom. (italics ours.)
State ex rel. Ogden v. Bellevue, 45 Wn.2d 492, 495, 275 P.2d 899 (1954). This
rule is of equal force in the administration of a building code. To permit another
course of administrative behavior, thereby inviting discretion, may well result in
violations of the equal protection of the laws. The code is positive in its
requirements and contains no exceptional procedures like those employed here;
hence, no city officer was authorized to permit its violation. The duty of those
empowered to enforce the codes and ordinances of the city is to insure
compliance therewith and not to devise anonymous procedures available to the
citizenry in an arbitrary and uncertain fashion.
Eastlake Community Council. v. Roanoke Associates Inc. 82 Wn.2d 475, 483, 513 P.2d
36 (1973). Here, the Director was required to follow the established code and
incorporate the decision into the underlying review of the application itself, no matter
what he might have thought about the wisdom of that action. His failure to do so
requires summary dismissal.
V. THE REQUIREMENT FOR INCORPORATION WITH THE LAND USE
APPLICATION IS CONSISTENT WITH LOCAL AND STATE LAW.
The Interpretation provisions of the Federal Way code make a distinction
between interpretation requests that are related to a "land use application" and those
that are not. FWRC 19.50.050(1) makes it clear that projects that.are related to land
use permits will be "incorporated into the directors's decision on the application and be
subject to applicable notice provisions for the decision." For these project applications,
the rest of that code section does not apply, including Subsection (2) regarding notice
of the interpretation and Subsection (3) regarding distribution. These provisions are the
ones that indicate a right to appeal and the deadline therefore.
DCD devotes a section of its brief at Paragraph 4.2(b) to an argument that
"SWC's argument disregards the content and section heading of FWRC 19.50.050 and
FWRC 19.50.040." See page 7. It contends that its reading of FWRC 19.50.050(l) is
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 7
LAW OFFICES OF
J. RICRARO ARAMOURif, PLLC
720 3naAVE„ SUITE 2a00
SEAT}TLE 98104
FAUX (j2061 682-1376
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correct because:
both the section heading for FWRC 19,50.050 ("Notice") and the substantive
provisions of that section are facially limited to a single subject: The required
public notice for interpretations.
Brief at 7, lines 8-9. However, headings and captions are expressly not a part of the
Federal Way Revised Code:
(2) Captions. Captions, catchlines, and headings used in the Code are not any
partof the law, unless expressly so provided.
FWC 1.05.030 (emphasis supplied). This argument fails.
DCD also argues that the "incorporation" provision of FWRC 19.50.050(1)
means that the "interpretation must subseguently be incorporated into the final
decision on that application." Brief at 8, lines 14-16 (emphasis in original). But the
Interpretation already "will be enforced as if it is part of this title" under FWRC
19.50.040(4); its incorporation into the final decision is an unnecessary step. The
incorporation language cannot be construed to achieve something that is already part
of the code.
Next, at pages 8-10 of its brief, DCD contends that its reading of the code
effectuates "the underlying policy of promoting efficiency in land use permit processing."
Page 8, lines 18-19. DCD cites sections of the Local Project statute that require
interpretations (RCW 36.70B.110(11)) to argue that such interpretation decisions
should precede permit review. However, the cited statute says nothing about the timing
of interpretations, leaving the subject to local legislation.
In fulfilling its obligation under RCW 36.70B.110(11), the Federal Way City
Council has decided that interpretations concerning land use applications should be
incorporated into the permit proceedings. While the Council's adoption of the
incorporation provision could have been challenged at the time of adoption, it was not,
and must be accepted as an accurate interpretation of RCW 36.70B.110(11).
Washington caselaw provides:
LAW OFFICES OF
REPLY TO OPPOSITION TO MOTION
" P`�`
7za 3A�AVE., suir� za6o
720 A E.. SUITE 2
FOR DISMISSAL OF INTERPRETATION - 8
�2�s) )662- 5
FAX �2a6}66R•75
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On the contrary, our Supreme Court has held that courts must read an
unambiguous statute for its plain meaning, "even if it believes the Legislature
intended something else but did not adequately express it."[111 Cerrillo, 158
Wn.2d at 201, 142 P.3d 155 (quoting Kilian, 147 Wn.2d at 20, 50 P.3d 638).
Cascade Floral Products, Inc. v. Department of Labor & Industries, 142 Wn.App. 613,
621, 177 P.3d 124 (Div. 2, 2008). Footnote 11 to the opinion states:
[11] More specifically, courts must interpret statutes as written "and [may] not
add or move language, even if we believe the legislature intended a different
result." Cerrillo, 158 Wn.2d at 204, 142 P.3d 155 (citing Kilian, 147 Wn.2d at 20,
50 P.3d 638).
What the Federal Way Council intended by the adoption of the first sentence of 'FWRC
19.50.050(1) must be discerned from the language adopted, not what staff thought
should be done.
The City also argues that incorporation is not allowed because the Applicant has
not opted for a "consolidated permit process" under RCW 36.7013.060. See Footnote 2,
page 10. But this consolidated process applies "where this title rewires more than one
application for a given project, all applications required for the project may be submitted
at the same time." FWRC 19.15.060. However, an interpretation request is not required
for applicant's Greenline Business Park project. It is the applicant that chose to seek an
interpretation in advance of the DCD's decision on its application for the Greenline
Business Park (though without disclosing that intention in the "complete application" for
that project). But this argument ignores the provisions of RCW 36.70B.050, which
provides:
Not later than March 31, 1996, each local government shall provide by ordinance
or resolution for review of project permit applications to achieve the following
objectives:
(1) Combine the environmental review process, both procedural and
substantive, with the procedure for review of project permits; and
(2) Except for the appeal of a determination of significance as provided in
RCW 43.21 C.075, provide for no more than one open record hearing and
one closed record appeal.
In DCD's telling, in addition to the open record hearing that DCD contends is
necessary for the appeal of its interpretation, there will also be an open record hearing
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 9
LAW OFFICES OF
J. RICHARO ARAMOURU, PLLO
7203ROAVE., SWTE 2000
SEATIITLE 96104
F Ai% (2p6) E 251376
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0x�
on the underlying application under FWRC 19.70.100. DCD's reading is that there may
be two open record hearings, one on their interpretation and the second on the
underlying land use application. The Council acted consistently with the statutory
mandate by assuring there will not be two hearings when an interpretation is requested
for a proposal "related to" a land use application requiring its own hearing. Certainly the
public interested in projects such as the Greenline Business Park should only have to
participate in a single hearing, not be worn out by required attendance at several
hearings. In addition, the incorporation of the Interpretation allows decision makers to
consider whether the interpretation is consistent with the criteria for approval of the
underlying proposal.
The incorporation of the interpretation into the land use review of the underlying
project is completely consistent with state and local law.
VI. CONCLUSION.
The DCD Director committed procedural error by not incorporating the
Interpretation into the decision on the underlying permit application on the Greenline
Business Park. The Director's decision should be reversed and the interpretation
request incorporated into land use /revieyv, for the Greenline' Business Park.
Respectfully submitted this I day of January, 2019.
Law Offices of J. Richard Aramburu, PLLC
J. Richard Aramburu, WSBA #466
Attorney for Save Weyerhaeuser Campus
28 Law OFFICES OF
REPLY TO OPPOSITION TO MOTION J. 720 V A E SUITE U, FLLC
72fl 3"°AVE., SUITE 2000
SEATTLE98104
FOR DISMISSAL OF INTERPRETATION - 10 FA(X(2�6259951376
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DECLARATION OF SERVICE
I am an employee in the law offices of ARAMBURu & EuSTIS, LLP, over eighteen
years of age and competent to be a witness herein. On the date below written I served
I the foregoing document to counsel or parties of record by email:
To the Hearing Examiner:
Phil Olbrechts
olbrechtslaw@gmail.com
For the Applicant:
Courtney Kaylor
MCCULLOUGH HILL LEARY, PS
courtneyC@mhseattle.com
Jack McCullough
MCCULLOUGH HILL LEARY, PS
Jack@mhseattle.com
For the City of Federal Way:
Zach Lei
Ogden Murphy Wallace P.L.L.C.
zlell omwlaw.com
Gloria J. Zak azak@omwlaw.com
Mark Orthmann
Deputy City Attorney
mark.orthmann@—ciWoffederalway.com
Stephanie Courtney
City Clerk
step hanie,courtney(a)cityoffederalway.com
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 15' day of January, 2019.
e4twedl_�
Carol Cohoe
REPLY TO OPPOSITION TO MOTION
FOR DISMISSAL OF INTERPRETATION - 11
LAW OFFICES 61
J. RICRARU ARAMB�IRU. PLI-C
720 3R'AVE. , SUITE 2600
SEAT))TLE 98104
F A�X (206) 662-1375