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HEX 18-002 Appeal of Interpretation1 2 3 4` 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 I 2 3 4 5 6'. 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17. 18 1.9 20 21 22 23 24 25 26 27 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 G25.9515 FAX [2 GJ G82-137G 1 I►A 3 4 5 6 7 8 9'. 10 11 12 13: 14`. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5'. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25. 26 27 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 2'' 3 4 5 6 7 8 9 10 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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