HEX 18-002 Motion for Summary Dismissal9
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY, WASHINGTON
TIT: -
Appeal of Interpretation 18-01
by Save Weyerhaeuser Campus
in relation to the application for the
Greenline Business Park (file 17-105491)
1 I. MOTION.
No. 18-01
MOTION FOR SUMMARY
DISMISSAL OF
INTERPRETATION
Appellant Save Weyerhaeuser Campus (SWC) moves the Federal Way Hearing
Examiner for an order dismissing the current interpretation and remanding the
interpretation request to the 'Department of Community Development for :incorporation
into the Director's decision on the application for the Greenline Business Park, as
required by FWRC 19.50.050(1). SWC requests that the Hearing Examiner decide this
motion as a prehearing matter to avoid the time and expense of a full evidentiary
hearing.
II. BACKGROUND AND STATEMENT OF FACTS.
On September 12, 2018, Federal Way Campus LLC (the "Applicant") submitted
a letter to the City Department of Community Development (DCD) requesting
interpretations of the 'Federal Way Revised Code (FWRC). See Attachment A hereto.
RAW OFFICES OF
MOTION FOR SUMMARY J. 7203"RARAMBURUb PLLC
72fl nAVE., SUITE 2pgp
SEATTLE 98104
DISMISSAL. OF INTERPRETATION - 1 FAr20(NE625-915
) 6B2J1376
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In its letter, the Applicant indicated it is the developer of a project known as the
Greenline Business Park ("the Project") and that it has submitted a complete application
j for that project.
The September 12 request goes on to say that issues regarding the meaning of
the Weyerhaeuser Concomitant Pre -Annexation Agreement arose during a Pre -
Application Conference with city staff, with the city issuing a Pre -Application Conference
Summary on November 3, 2017, more than a year ago. The application for the
Greenline Business Park was determined to be complete by DCD on May 14, 2018,
and a comment period for the proposal was advertised. SWC filed extensive written
comments on the application. See Attachment B hereto. There was no mention of the
current interpretation request in the notice of the complete application, though the City
position on the interpretation issue was set forth in the Summary issued six months
before, on November 3, 2017.
The applicant filed its request for interpretation on September 10, 2018, just after
the close of comments on the Greenline Business Park application. There was no
public notice of the Applicant's interpretation request, nor was SWC, or others that
commented on that application or had provided comment on the Greenline Business
Park application, given notice of the interpretation request and the opportunity to
comment.
On November 8, 2018, the City issued Interpretation 18-01 in response to the
Applicant's request. SWC filed a timely appeal of Interpretation 18-01 on November
27, 2018, The office of the Hearing Examiner has scheduled a Pre -hearing Conference
on the Appeal for January 9, 2019.
Ill. LEGAL AUTHORITY AND ARGUMENT.
As stated in SWC's appeal statement at Paragraph 4.2, FWRC 19.50.050(1)
provides that interpretations which "are related to a land use or subdivision application
shall be incorporated into the director's decision on the application...." This code
MOTION FOR SUMMARY
DISMISSAL OF INTERPRETATION - 2
LAW OFFICES OF
J. RICHARD ARAMBURU PLLC
7.20 3"' AVE., SUITE 2B00
SEAT)TLE98104
F AIX {2N) 682-1376
fit
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section also specifically provides that the interpretation request "be subject to the
applicable notice provisions for the decision." This requires that the notice for the land
use application disclose that an interpretation has been requested and allow the public
an opportunity to comment on it. The obvious purpose of the code is to allow interested
residents to incorporate the issues raised by the interpretation request into comment on
the development proposal,
The applicant's interpretation request stated that it was related to application for
the Greenline Business Park (GBP) (File Nos. 17-105489-00-UP and 17-105490-00-
SE). The interpretation request specially references the pre -application summary for
that application issued on November 17, 2017.
The Federal Way City Council has specially limited the authority of the Director
to issue interpretations when that interpretation is related to a land use application. The
Applicant itself admits the interpretation request arose from the pre -application
conference on its business park proposal.
The mandatory terms of FWRC 19.50.050(1) require that the interpretation
request be remanded for consideration as a part of the review of the Business Park
application and be subject to applicable notice provisions. Because of the mandatory
terms of the ordinance, the interpretation at issue should be reviewed and resolved as a
preliminary matter to avoid the time and expense of a full hearing on the merits of the
interpretation decision.
IV. CONCLUSION AND RELIEF REQUESTED.
Interpretation 18-01 has been prematurely issued. Under applicable code
provisions, it must be incorporated into the Director's decision on the underlying
application and be subject to notice provisions for the land use application. The
Hearing Examiner should remand the interpretation to the Director for compliance with
the code provisions.
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28 LAW OFFICES OF
MOTION FOR SUMMARY J. 720 HARD ARAMUITR2 PLLC
720 3"oAVE„ SSUITE2000
DISMISSAL OF INTERPRETATION - 3 SEATTLE-95 5
(206 G
FAX (2 6) 26682.2.71376
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Respectfully submitted this 2nd day of January, 2019.
Law Offices of J. Richard Aramburu, PLLC
Q
J. Richard Arambur , WSBA #466
Attorney for Save Weyerhaeuser Campus
MOTION FOR SUMMARY
DISMISSAL OF INTERPRETATION - 4
LAW OFFICES OF
J. RICHARD ARAMBURU, PLLC
720.310AVE., SUITE 2t100
SEAT)TLE98104
FA(X (206) 082- 376
Attachment A
Attachment A
DECEIVED REQUEST FOR ADMINISTRATIVE DECISION
CITY 4F COMMUNITY DEVELOPMENT DEPARTMENT
2016 BtAvenue Federal Way SEP 12 Federal Way,WA 9800
CITY OF FEDERAL. WAY 253-835-2607; Fax 253-835-2609
COMMUNITY DEVELOPMENT �� �v�v.cilyof'1'cderah�'g�.utim
t O .-L (/
FILE NUMBER - 4�-Date
Applicant
NAME
PRIMARY PHONE
Dana Ostenson
310-722-8972
BUSINESS/ORGANIZATION
ALTERNATE PHONE
Federal Way Campus LLC c/o Industrial Realty Group LLC
MAILING ADDRESS
E-MAIL
11100 Santa Monica Blvd., Ste. 850
dostenson@industrialrealtygroup.corr
CITY
STATE
ZIP
FAX
Santa Monica
I CA
90025
Property Address/Location Greenlone Business Park. See attached legal description
Description of Request
List/Describe Attachments See attached letter reguestinq code interpretation.
For Staff Use
❑ Code Interpretation/Clarification
❑ Critical Areas Letter/Analysis/Peer Review
❑ Request for Extension (Land Use/Plat Approval)
❑ Revisions to Approved Permit
❑ Tree Removal
❑ Zoning Compliance Letter
El
- No Fee
- No Fee (Actual Cost if Applicable)
- Check Current Fee Schedule
- Check Current Fee Schedule
- No Fee
- Check Current Fee Schedule
Bulletin #079 — January 4, 2016 Page 1 of 1 k:\Handouts\Request for Administrative Decision
MCCULLOUGH HILL LEAKY, Ps
September 10, 2018
VIA ELECTRONIC MAIL
Brian Davis
Director, Department of Community Development
City of Federal Way
33325 8th Ave. S.
Federal Way, WA 98003
Re: Request for Interpretation
Dear Mr. Davis:
We represent Federal Way Campus LLC ("Applicant"), the developer of the project known as the
Greenline Business Park ("Project") and owner of the property on which the Project is located
("Property"). Pursuant to Federal Way Municipal Code ("City Code" or "FWMC") Chapter 19.50,
the Applicant seeks an 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. Intetpr t6gn Requested
The Applicant seeks a determination that:
■ The Managed Forest Buffer on the northern boundary of the Property between I-5 and
Weyerhaeuser Way has a depth of zero feet; and
■ If the Applicant dedicates land including the Managed Forest Buffer to the City of Federal
Way ("City") for the future extension of S. 324`h Street, then the Managed Forest Buffer
remains on the land acquired by the City and does not relocate to the propertyretained by
the Applicant.
II. Factual Backno
The Applicant has submitted a complete application for the Project (File Nos. 17-105489-00-UP &
17-105490-00-SE). Prior to submission of this application, the Applicant and City held a Pre-
FWAIC 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 previously 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 • www.mhseattle.com
Brian Davis
September 10, 2018
Page 2 of 5
Application Conference. Following that conference, the City issued a Pre -Application Conference
Summary ("Pre -Application Summary"), dated November 3, 2017. In the Pre -Application
Summary, the City stated: `Because the northern property line abuts the OP-1 zoning district, and
RS zoning district, Section III.B.3 of the Concomitant Agreement requires a 50-foot Managed
Forest Buffer along the north property line. A 100-foot Managed Forest Buffer is required by the
CZA adjacent to Interstate-5."
Yet, 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") provide for a 50-
foot Managed Forest Buffer only abutting a city or county roadway or an incompatible use.
Concomitant Agreement, Ex. C, Section III.B.2, 3. Here, the northern boundary of the Property
between I-5 and Weyerhaeuser Way does not abut a road or incompatible use. Instead, to the north
of the Property is Office Park ("OP-1") zoned property developed with office buildings and
proposed for redevelopment for the DaVita corporate offices. The uses allowed in the OP-1 zone
are not uses "incompatible" with uses allowed in the CP-1 Zone, since office uses are allowed in
both zones. Therefore, the Concomitant Agreement provides no Managed Forest Buffer depth
under these circumstances.
Accordingly, the Applicant now seeks an Interpretation to recognize the plain language of the
Concomitant Agreement regarding the Managed Forest Buffer in this location.
III. Anplieable Code Sections
City Code Chapter 19.50 provides for Interpretations. Section 19.50.010 provides: "The
interpretation of the provisions of a concomitant agreement will be treated as an interpretation of
this title." Accordingly, the Applicant requests an Interpretation of the Concomitant Agreement,
Exhibit C, Section III.B, relating to the Managed Forest Buffer.
IV. Relevant Information and Arguments
A. The Managed Forest Buffer depth between compatible uses is zero feet.
The Applicant requests an interpretation that the Managed Forest Buffer on the northern boundary
of the Property between I-5 and Weyerhaeuser Way has a depth of zero feet.
In interpreting a development agreement, the Citymust "discern the intent of the parties to the
development agreement" utilizing "principles of contract construction." City of Union Gap v. Printing
Press Props., LLC, 2 Wn. App. 2d 201, 224-225, 409 P.3d 239 (2018). The same principles of
interpretation apply by analogy to concomitant agreements, the predecessors of development
agreements. See RCW 36.70B.170(1). Under the "context rule" applicable to contract interpretation,
Determination of the intent of the contracting parties is to be accomplished by viewing the
contract as a whole, the subject matter and objective of the contract, all the circumstances
Brian Davis
September 10, 2018
Page 3 of 5
surrounding the making of the contract, the subsequent acts and conduct of the parties to
the contract, and the reasonableness of respective interpretations advocated by the parties.
Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990). However, interpretation may not add
to, modify or contradict the terms of a written contract. Id. at 669.
Exhibit C, Section III, of the Concomitant Agreement provides, in pertinent part:
B. Development Setback. A continuous Managed Forest Buffer shall be provided
around the entire perimeter of the CP-1 property. The required depth of the setback, except
as otherwise provided herein, shall be as follows:
1. Where abutting a state or federal highway, 100 feet, measured from the
nearest line of the right-of-way toward the interior of any abutting portion of the lot.
2. Where abutting a city or county roadway, 50 feet, measured from the nearest
line of the right-of-way toward the interior of any abutting portion of the lot.
3. Where abutting an incompatible use, 50 feet, measured from the nearest
common property line, toward the interior of any abutting portion of the lot.
No Managed Forest Buffer depth is specified when neither B.1, B.2 or B.3 applies.
Here, Section III.B.1, 2 and 3 do not apply. I-5 does not border the Property on the north. A city
or county roadway does not border the Property on the north. The Property does not abut an
incompatible land use. The property immediately adjacent to the north is zoned OP-1. Under the
Concomitant Agreement, one of the purposes of the OP-1 zone is "[t]o encourage development of a
wide variety of business uses that are com atible with adjacent uses and the uses allowed in the
Co orate Park zone." Concomitant Agreement, Ex. D, Section LA (emphasis added). These uses
include office; medical facilities; research, development and testing; production and light assembly of
goods; and conference center, among other uses. Id. at Section III.A. The property is developed
with office buildings and accessory parking and is proposed for redevelopment with the DaVita
corporate offices. The Project is compatible with these zoned, existing and proposed uses.
Based on this analysis, it appears that the parties did not intend to provide any buffer in the case of
adjacent compatible land uses. This is a reasonable interpretation because no buffer depth is
provided for this situation. This interpretation is also be reasonable in light of the meaning of the
term "buffer." While no definition of "buffer" was provided in the Concomitant Agreement or the
City Code in effect at the time of the Concomitant Agreement, the dictionary defines "buffer" as
"something that serves as a protective barrier."' There is no need to protect compatible uses from
each other, and therefore no need for a specific buffer depth between them.
RECEIVED
2 hrips://www.merriam-webster.comldictiona.rylbuffer?src=search-diet-lied SEP 12 2018
OOrry D�i.OPMEN7
Brian Davis
September 10, 2018
Page 4 of 5
Accordingly, the Applicant requests an interpretation that the Managed Forest Buffer on the
northern boundary of the Property between I-5 and Weyerhaeuser Way has a depth of zero feet.
B. The Managed Forest Buffer does not move if property is dedicated for public
right of way.
The Applicant requests an interpretation that, if the Applicant dedicates land including the Managed
Forest Buffer to the City for the future extension of S. 324" Street, then the Managed Forest Buffer
remains on the land acquired by the City and does not relocate to the property retained by the
Applicant.
Exhibit C, Section III, of the Concomitant Agreement provides, in pertinent part:
B. Development Setback. A continuous Managed Forest Buffer shall be provided
around the entire perimeter of the CP-1 property. The required depth of the setback, except
as otherwise provided herein, shall be as follows:
Emma
4. Widening the public rights -of -way subsequent to approval of a CP-1
classification shall not require relocation of any boundaries of the required Buffer for
developed lots.
The Concomitant Agreement does not directly address the situation in which new public rights -of -
way are created along the CP-1 zoning boundary. However, the provision quoted above that road
widening does not cause relocation of the Managed Forest Buffer evidences an intent that the
Managed Forest Buffer remain in its original location and not relocate based on changed right-of-
way. In order to effectuate this intent, the Applicant requests an interpretation that, if the Applicant
dedicates land including the Managed Forest Buffer to the City for the future extension of S. 324t"
Street, then the Managed Forest Buffer remains on the land acquired by the City and does not
relocate to the property retained by the Applicant.
V. Conclusion
For these reasons, the Applicant requests determinations that:
The Managed Forest Buffer, where it is applicable on the northern boundary of the
Property, has a depth of zero feet; and
• If the Applicant dedicates land including the Managed Forest Buffer to the City of Federal
Way ("City") for the future extension of S. 324" Street, then the Managed Forest Buffer
remains on the land acquired by the City and there is no Managed Forest BuVMVED
property retained by the Applicant.
SEP 12 2018
CO' N'TY D)EV&L pMEM'
Brian Davis
September 10, 2018
Page 5of5
The Applicant reserves the right to submit additional information or argument relating to this Code
Interpretation request.
Sincerely,
<-"-, a& ' 0
ohn C. McCullough
cc: Mark Orthmann
Client
RECEIVED
SEP 12 2018
Crry OF COMMINTY t)� �Em
Attachment B
Attachment B
Attorneys at Law
J. Richard Aranburu 720 Third Avenue, Suite 2000
rick@aramburu-eustis.com Seattle, WA 98104
Jeffrey M. Eustis Tel 206.625.9515
eustis@aramburu.eustis.com Fax 206.682.1376
May 29, 2018
City of Federal Way
33325 8th Ave. S.
Federal Way, WA 98003
Attn: Brian Davis, Director
Department of Community Development
And Jim Harris
Planner
www.aramburu,eustis.com
Via Email:
Brian.Davis@cityoffederalway.com
Jim.Hards@cityoffederalway,com
Re: Greenline Business Park Application (File #17-105491);
Proposals for Warehouse A (#16-102947-00-UP, 16-102948-00-SE) and
Warehouse B (#17-104236-UP, 17-104237-SE).
Dear City of Federal Way:
This office represents Save Weyerhaeuser Campus, a Washington nonprofit
corporation organized and existing to protect and preserve the community and natural
values of the Weyerhaeuser Campus.
On May 14, 2018, the City of Federal Way determined that the application for the
Greenline Business Park (GBP) was complete. That proposal, made by Industrial
Realty Group of Los Angeles (IRG), includes the construction of three buildings totaling
approximately 1,068,000 square feet on a parcel of 146 acres and revisions to an
existing parking lot adding 806 parking stalls, which will involve, among other activities,
filling wetland and improving existing roads in the vicinity. On May 18, 2018, the City
issued a Notice of Master Land Use Application, initiating a fourteen day comment
period, The Notice indicates that the proposal will be reviewed under the
"Weyerhaeuser Company Pre -Annexation Concomitant and Zoning Agreement" (CA),
which places the property in the CP-1 zone created by the CA.
Previously, IRG submitted complete applications for two other construction projects also
located in the CP-1, Warehouses A and B. Warehouse A is a 225,950 square foot
warehouse building on 13.7 acres with 245 parking stalls; Warehouse B is a 217,300
June 4, 2018
Page 2
square foot warehouse building with 244 parking spaces immediately adjacent to
Warehouse A. The Warehouse A/B proposals will use a common access road and the
same stormwater detention pond. These two projects are owned by the same applicant
as for the Greenline Business Park. The City has not issued a threshold determination
under SEPA for either of IRG's Warehouse proposals.
In this letter, SWC provides comment on the rules, regulations and standards applicable
to the pending permit applications. First, any review of the business park proposal under
both current zoning and the State Environmental Policy Act (SEPA) must consider the
consolidated and cumulative impacts of all three pending proposals and cannot proceed
with separate, individual, fragmented review. Second, the existing rules and
regulations, including the CA, cannot be read to vest applications to rules and standards
adopted twenty-four years ago. In several specific areas, the City should apply current
standards and regulations adopted after Ordinance 94-219 (including the CA and its
zoning) was adopted in 1994. These issues will be addressed below.
1. THE CITY MUST CONDUCT COMBINED AND CONSOLIDATED REVIEW OF THE
THREE PENDING PROPOSALS.
1.1. SEPA REVIEW. Because of the background of this proposal, the City is
required to conduct consolidated land use and environmental review of the pending
applications, not segmenting or bifurcating review. This is based on the following.
A. ONE OWNER. The entire 426-acre Weyerhaeuser Campus was purchased
in 2016 by IRG, a California developer of warehouses and business parks.
B. THREE CURRENTLY PENDING APPLICATIONS. IRG has filed applications
for use of significant portions of the Weyerhaeuser Campus, including the GBPark,
Warehouse A and Warehouse B, which have all been deemed complete by the City.
These three applications will be referenced herein as the "IRG Applications." Each of
the applications is currently pending and no threshold determination has been issued for
any of them. Comments on the GBP are due on June 4, 2018.
C. SAME ZONE FOR ALL PARCELS. The IRG Applications are all in the CP-1
zone. That zone is ono applicable to the Weyerhaeuser Campus parcels and not to
any other properties in the city.
D. UNDER SEPA, THE THREE PENDING APPLICATIONS MUST BE
CONSIDERED IN A SINGLE ENVIRONMENTAL DOCUMENT.
The City of Federal Way has adopted by reference most of the Washington State
SEPA Rules, WAC Chapter 197-11, into Federal Way's code in FWC 14.05.020.
June 4, 2018
Page 3
Included in this adoption is WAC 197-11-060, including Subsection (b). This section
provides as follows-
(b) Proposals or parts of proposals that are related to each other closely enough
to be, in effect, a single course of action shall be evaluated in the same
environmental document. (Phased review is allowed under subsection (5).)
Proposals or parts of proposals are closely related, and they shall be discussed
in the same environmental document, if they:
(i) Cannot or will not proceed unless the other proposals (or parts of
proposals) are implemented simultaneously with them; or
(ii) Are interdependent parts of a larger proposal and depend on the larger
proposal as their justification or for their implementation.
In addition, WAC 197-11-060(c) provides as follows:
(c) (Optional) Agencies may wish to analyze "similar actions" in a single
environmental document.
(i) Proposals are similar if, when viewed with other reasonably foreseeable
actions, they have common aspects that provide a basis for evaluating their
environmental consequences together, such as common timing, types of
impacts, alternatives, or geography. This section does not require agencies or
applicants to analyze similar actions in a single environmental document or
require applicants to prepare environmental documents on proposals other than
their own.
(ii) When preparing environmental documents on similar actions, agencies
may find it useful to define the proposals in one of the following ways: (A)
Geographically, which may include actions occurring in the same general
location, such as a body of water, region, or metropolitan area; or (B) generically,
which may include actions which have relevant similarities, such as common
timing, impacts, alternatives, methods of implementation, environmental media,
or subject matter.
These provisions were considered in Indian Trail Property Owner's Ass'n v. City of
Spokane, 76 Wn.App. 430, 886 P.2d 209 (1994). There a shopping center
redevelopment and expansion were under review, including a large grocery store and
other features. However, two parts of the overall proposal were not included in the
original environmental checklist and threshold determination, a car wash and large
underground storage tanks, and were proposed for later environmental review. On a
challenge to this segmented environmental review, the Court of Appeals said as follows:
Cumulative Effects. We note at the onset that the responsible official's initial
evaluation of the underground fuel storage tanks separate from other phases of
the proposal was in error. Parts of proposals which are "related to each other
June 4, 2018
Page 4
closely enough to be, in effect, a single course of action shall be evaluated in the
same environmental document." WAC 197-11-060(3)(b). Here, a phased review
of the project was clearly inappropriate because it would serve only to avoid
discussion of cumulative impacts. WAC 197-11-060(5)(d)(ii). See also WAC 197-
11-060(3)(b). However, the error was cured when the original MDNS and DNS
were withdrawn, and the cumulative effects of the entire project considered
before a new MDNS was issued.
Redevelopment of the shopping district also included plans for a car wash. In 131
zones, a car wash requires a special permit. When addressing neighborhood
concerns about the noise impacts from the car wash, the hearing examiner
responded "there is no car wash in this application and a special permit must be
applied for before a car wash can be built in conjunction with this use". To the
extent the hearing examiner was approving separate SEPA review for the car
wash, he was in error. WAC 197-11-060(3)(b). However, the error was harmless
because the responsible official considered the impact of the car wash when
making the threshold determination and required mitigation measures for it.
76 Wn.App. at 443.
As noted above, the IRG Applications have a common owner (IRG), common
timing (all have complete pending applications), common geography (all on the
Weyerhaeuser Campus), common impacts and common zoning (CP-1, applicable only
to this property). The most significant impacts of the combined proposals affect traffic
and transportation, with significant impacts to off -site city roads and state highways
including 1-5 and SR 18. Complete and accurate traffic and transportation analysis
should include not only the three current proposals, but an accurate analysis for the
future use of the Weyerhaeuser Headquarters building (more than 300,000 square feet),
which is currently offered for lease by IRG to a single tenant. Currently, the traffic report
for Warehouse A, for example, does not include potential traffic from Warehouse B, the
GBP, or the Weyerhaeuser headquarters building. The projects, individually and
cumulatively, will also impact downstream water resources, including the Hylebos
stream, Milton's East Hylebos Ravine, Fife's Lower Hylebos Nature Park and associated
wetlands and habitat. The GBP proposal alone will total 1,441,000 square feet of
impervious surface.
Under the applicable regulations and caselaw, it would be error for the City to
conduct separate environmental review for IRG's proposals. The City should require
IRG to submit an environmental checklist that includes the cumulative impact of all three
projects. There appears to be little question that a proposal with more than 2,000,000
square feet of structure and other impervious surfaces will have a significant impact on
the environment and accordingly requires an environmental impact statement (EIS).
June 4, 2018
Page 5
1.2. LAND USE REVIEW. In addition, the three development proposals are
included within the "Corporate Park 1 " or "CP-1 " zone, which was adopted by the City in
Ordinance 94-219 as a part of the annexation of this and other nearby property in 1994.
The CP-1 zone only applies to the former Weyerhaeuser Campus. Ordinance 94-219
also reached certain "Conclusions of Law," beginning at page 4; these Conclusions
applied to the entire annexation area, including the property where the three pending
proposals are located. Conclusion B states that the property, as a whole, has "unusual
environmental features" and that the ordinance is the "means to preserve and protect
these natural features," again referencing the entire annexation area. Conclusion C
states that "any development in the corporate headquarters area is low density
characterized by large expanses of open space." The applicant contends that the 1994
CA controls development on the Weyerhaeuser Campus. While that is not entirely
correct, as pointed out below, it is apparent that the CA requires that the entire site be
considered when development proposals are made. For example, under Paragraph
14.2 of the CA, existing streets had "been constructed to meet capacity needs for on -
site development up to an additional 300,000 square feet of Corporate Office Park
development;" this provision regarding street capacity is applicable to the entire site.
The CP-1 zone found at Exhibit C to the CA also stresses that the entire site is to
be considered together in review and analysis. The CP-1 zone states its Purpose and
Objectives, saying that the properties in the zone:
...are characterized by large contiguous sites with landscape, open space
amenities, and buildings of superior quality. The property appropriate for such
uses is unique, and demands for such uses are rare. Consequently special land
use and site regulations are appropriate for such properties.
CP-1 Zone, page C-1. Subsection A states "This property is subject to its own unique
standards of review processes as set forth in the Agreement." Id. The same is true of
provisions for "Off -Street Parking" found in Exhibit C, in Section XIII at page C-18, that
although new development shall require compliance with applicable off-street parking
requirements:
the aggregate of all proposed and existing uses on the property may, subject to
the approval of the Director, be considered as a whole in establishing the
minimum number of vehicles spaces required, .. .
It is wholly inconsistent with the CP-1 zoning, and the background of the CA and
Ordinance 94-219, to separately consider individual projects when the City recognizes
that the proposals are located on a unique property. This is especially true when IRG,
the property owner, has three complete and pending applications to use substantially all
of the CP-1 zoned area. Based on the foregoing, it is apparent that since 1994 the City
has considered the Weyerhaeuser Campus unique and has adopted unique standards
June 4, 2018
Page 6
of review applicable to the entire site. Site development, by a common property owner,
must be considered as a consolidated whole for permitting purposes.
2. THE CITY IS REQUIRED TO APPLY CURRENT CODES AND STANDARDS, NOT
THOSE IN EFFECT IN 1994.
As noted above, Ordinance 94-219 is now twenty-four years old, but the
applicant for the three pending projects claims that the ordinance, and the CA, vest
these new proposals to rules, regulations and standards in effect when the ordinance
was adopted. The City should reject that proposition and apply current adopted
standards.'
The applicant seeks to apply certain provisions of the CA to its current land use
applications. Among others, the applicant asks the City to follow certain criteria in
review of its proposals, including the following provisions of the development agreement
that are contrary to codes.
1) The agreement "not to require any dedication or conveyance of the Property or
any portions thereof for public purposes ....
Paragraph 12, page 10.
2) Agreement to consider roads adequate for the addition of 300,000 square feet
of new Corporate Office Park development that might be located anywhere on
the site.
Paragraph 14.2, page 11.
3) Agreement that the property owners "shall be vested for purposes of roadway
capacity requirements and any concurrency requirements and Weyerhaeuser
shall not be required for pay for any new public streets within the Property area
or traffic mitigation fees for these streets in connection with the Additional
Development.
Paragraph 14.2, page 11, Paragraph 15, page 13.
4) Agreement that areas of the Property which are "classified as environmentally
sensitive" shall comply with the critical areas ordinance in effect in 1994, except
for special provisions found at pages C-12 to C-18.
Exhibit C to Ordinance 94-219, Section XII.
Washington law is clear that no city may establish fixed land use and
development regulations that cannot be ever modified or changed.
As described above the City should consider IRG's three pending proposals together as a single
application following evaluation of the whole proposal under SEPA.
June 4, 2018
Page 7
A) Washington Law Prohibits One Legislative Body from Binding Future
Councils.
The effect of the CA as interpreted by the applicant is that no later rules,
regulations, legislation or council action can modify the agreement; it is permanent and
never capable of modification. This concept is not consistent with Washington law for
the following reasons.
Under settled Washington law, a municipality "cannot enter into contracts binding
on future boards of commissioners." See State ex. rel. Schlarb v. Smith, 19 Wn.2d 109,
112, 141 P.2d 651 (1943). See also Miller v. City of Port Angeles, 38 Wn.App. 904
(1984) where it is recognized that a local government cannot contract away its police
power. It is recognized that this rule must be construed in the context of whether the
contract involves its legislature function or its administrative/proprietary function. This
issue was considered in some detail in AGO 2012, No. 4, which concluded as follows:
If a contract impairs the "core" legislative discretion, eliminating or substantially
reducing the discretion future bodies might exercise, the courts are likely to find
that the contract has improperly impaired the legislative authority of future
commissioners."
Moreover, the CA permits deviations from the current city standards. For example, at
Paragraphs 14.2 and 15, the CA prohibits the city from collecting impact fees for an
additional 300,000 square feet of corporate office development, an indulgence not
permitted under existing codes. Similarly, Section XII of the CP-1 zoning allowed
deviations from even the then -existing sensitive area ordinances, making it inconsistent
with those codes. Indeed, Paragraph 4.1 of the CA (page 5) specifically provides that
"to the extent Federal Way policies impose development standards conflicting with this
Agreement, this Agreement shall control." Accordingly, the CA, which is claimed to bind
all Federal Way councils forever, is ultra vires.
It is also important to note that the CA in question is different from contract
rezones or other similar legislative actions. These agreements ordinarily set forth what
will, or will not, be done on a property as a part of a rezone; in such cases, the work will
be completed as a part of the contract rezone. The CA here is not related to any project
proposed when it was executed; its sole intention is to limit the authority of the City to
take actions in the future and to allow undefined future development.
B) Washington Law Regulating Annexation Zoning Ordinances Does Not Permit
Ordinances That Last Forever.
As a city formed under the Optional Municipal Code (OMC), RCW Title 35,
Federal Way must comply with the terms of chapter 35.14 when annexing new territory.
June 4, 2018
Page 8
In particular, RCW 35A.14.330 allows an OMC city to prepare a zoning regulation to
become effective in an area to be annexed. Subsections (1) and (2) define the scope of
a potential pre -annexation zoning, while subsection (4) provides as follows:
(4) The time interval following an annexation during which the ordinance or
resolution adopting any such proposed regulation, or any part thereof, must
remain in effect before it may be amended, supplemented or modified by
subsequent ordinance or resolution adopted by the annexing city or town.
As described, this legislation allows an OMC city to establish only a "time interval"
during which the pre -annexation zoning regulation "must remain in effect." Without such
a "time interval," a local legislative authority could amend the interim zoning ordinance
at any time, as described above.
RCW 35A.14.330(4) plainly requires zoning have a "time interval" during which
the pre -annexation zoning will be binding before it may be amended or modified.
Nothing in this statute allows the local government to make permanent pre -annexation
zoning, any more than zoning adopted pursuant to the planning and zoning chapter of
the OMC, chapter 35A.63, could be made permanent.
The statute is supported by Washington caselaw regarding the permanency of
zoning, as discussed in Bishop v. Town of Houghton, 69 Wn.2d 786, 792, 420 P.2d 368
(1966):
We have no quarrel with respondents' basic theme to the effect that while zoning
implies a degree of permanency, it is not static and zoning authorities cannot
blind themselves to changing conditions. Thus, when conditions surrounding or in
relation to a zoned area have so clearly changed as to emphatically call for
revisions in zoning, the appropriate zoning authorities are under a duty to initiate
proceedings and consider the necessity of pertinent modifications of their zoning
ordinances. Otherwise, outmoded zoning regulations can become unreasonable,
and the zoning authorities' failure to suitably amend or modify their ordinances
can become arbitrary, in which event courts can and should grant appropriate
relief. 2 Metzenbaum, Zoning, 1125 (2d ed. 1955).
Land use regulations cannot be frozen in time nor be immune to new priorities,
changed circumstances, scientific study or community needs.
A zoning ordinance that can never be modified is inconsistent with the authority
granted to the City of Federal Way and is thus void.
June 4, 2018
Page 9
C) The GMA Requires Updating of Development Regulations on a Periodic
Basis; The CA Cannot be Immune from the Obligation of Continuing Review.
Federal Way is not only subject to the rules established by the OMC, but also to
the Growth Management Act, RCW chapter 36.70A (GMA). One of the obligations
imposed by the GMA under RCW 36.70A.130 is for continuing review on a periodic
basis. Under this statute each local Comprehensive Plan and the local development
regulations:
shall be subject to continuing review and evaluation by the county or city that
adopted them. Except as otherwise provided, a county or city shall take
legislative action to review and, if needed, revise its comprehensive land use
plan and development regulations to ensure the plan and regulations comply with
the requirements of this chapter according to the deadlines in subsections (4)
and (5) of this section.
(Emphasis supplied.)2 Subsection (1)(c) further states: "(c) The review and evaluation
required by this subsection shall include, but is not limited to, consideration of critical
area ordinances...." These sections requiring periodic review were imposed by the
legislature after the adoption of Federal Way's Ordinance 94-219 in 1994. The
provisions are to assure that local government regulations remain current with scientific
advancements and needs of the community. In addition, when considering amendment
of a comprehensive plan or development regulations, the City is obligated to "establish
and broadly disseminate to the public a public participation program identifying
procedures providing for early and continuous public participation in the development
and amendment of comprehensive land use plans and development regulations
implementing such plans." RCW 36.70A.140.
As it relates to critical areas, since the adoption of Ordinance 94-219 by the City,
new legislation has modified the content of critical area rules. In 1995, the Legislature
adopted RCW 36.70A.172, which requires as follows:
(1) In designating and protecting critical areas under this chapter, counties and
cities shall include the best available science in developing policies and
development regulations to protect the functions and values of critical areas. In
2 Use of the word "shall" by the legislature has a distinct meaning in Washington jurisprudence:
Moreover, "shall" when used in a statute, is presumptively imperative and creates a mandatory
duty unless a contrary legislative intent is shown. Phil. 11 v. Gregoire, 128 Wash.2d 707, 713, 911
P.2d 389 (1996); State v. Krall, 125 Wash.2d 146, 148, 881 P.2d 1040 (1994).
Goldmark v. McKenna, 172 Wn.2d 568, 575, 259 P.3d 1095, (2011).
June 4, 2018
Page 10
addition, counties and cities shall give special consideration to conservation or
protection measures necessary to preserve or enhance anadromous fisheries.
This section mandated that local governments take account of best available
information in adopting critical area regulations, including publications such as
"Wetlands in Washington State - Volume 2: Guidance for Protecting and Managing
Wetlands." See https:Hfortress.wa.gov/ecy/publications/summarypages/0506008.html.
As noted above, the applicant seeks to opt out of these provisions by reliance on
Ordinance 94-219. However, the City has recently adopted Ordinance 15-797, codified
as Chapter 19.145 of the Federal Way Code, which regulates Environmentally Critical
Areas (ECA) in the City. The purpose of this ordinance is as follows:
The purpose of this chapter is to protect the environment, human life, and
property from harm and degradation. This is to be achieved by precluding or
limiting development in areas where development poses serious or special
hazards; by preserving and protecting the quality of drinking water; and by
preserving important ecological areas such as steep slopes, streams, lakes and
wetlands. The public purposes to be achieved by this chapter include protection
of water quality, groundwater recharge, stream flow maintenance, stability of
slope areas, wildlife and fisheries habitat maintenance, protection of human life
and property and maintenance of natural stormwater storage and filter systems.
FWC 19.145.010. FWC 19.145.015 provides as follows: "Except as otherwise
established in this chapter, if a proposed development activity requires city approval,
this chapter will be implemented and enforced as part of that process." FWC
19.145.020 clarifies its application: "The provisions of this division apply throughout the
city and must be complied with regardless of any other conflicting
provisions of this
title." The provisions of this title that do not conflict with the provisions of this division
apply to the subject property. Conflicts with the CP-1 zoning are resolved in favor of the
adopted critical area ordinances.
Accordingly, the property in the CP-1 zone must be consistent with the revised
ECA ordinance; no provision of the current code exempts the CP-1 zone from its
application or allows a completely out of date code to be applied in the city.
D) The Attempt in the CA to Vest to Future Permit Activity is Inconsistent with
Washinaton Law.
In 1987, the Washington Legislature established the rules for vesting of
development applications in RCW 19.27.095 and 58.17.033. In this legislation, either a
building permit or a plat would vest when a "fully complete application" was made. As
noted in Snohomish County v. Pollution Control Hearings Board, 386 P. 3d 1064, 187
June 4, 2018
Page 11
Wash. 2d 346, 105 Wash.2d 778, 789, 719 P.2d 531 (2016): "Washington's vested
rights doctrine originated at common law, but is now statutory", citing Town of Woodway
v. Snohomish County, 180 Wn.2d 165, 173 (2014) (emphasis supplied).
The applicant here claims that it is vested to 1994 standards by virtue of the CA,
but the terms of Washington law do not allow vesting in advance of the filing of a
complete building permit or plat application. There was no complete building permit or
plat application filed when the CA was agreed to in 1994. Our courts have held that the
statutory vesting doctrine only applies when an applicant files "a completed application
for a building permit." Potala Village Kirkland, LLC v. City of Kirkland, 183 Wn.App. 191,
334 P.3d 1143 (2014). In Potala, the Court rejected the proposition that an application
for a substantial development permit would vest rights against zoning changes.
In the present case, the applicant claims the Pre -Annexation Zoning Agreement
and the CP-1 Zoning in the CA vest it to development regulations in effect at the time,
some twenty-four years ago. But, nowhere has the legislature adopted a rule that
allows pre -annexation zoning under RCW 35A.14.330 to vest development rights. The
rules established in 1987 codified the vested rights doctrine and limited its application to
building permits, plats and later (1995) development agreements. Attempts to vest
rights based on this pre -annexation zoning are not effective and any review of the
current applications should be consistent with existing land use regulations and
controls.
3. CONCLUSION.
The applicant's proposals violate basic standards for review.
First, with three complete applications on the CP-1 zoned property, Washington
law and local ordinances require that project review be consolidated. This applies not
only to review for consistency with the city codes, but also SEPA review and analysis.
An environmental checklist should be prepared that identifies and reviews the entirety of
the three pending applications. This does not present a hardship to the applicant
because it has already assembled data for its projects, all that is required is the
consolidation of this information.
Second, the city should apply current zoning, environmental and critical area
ordinances to the three applications. Consideration of the pending applications under
twenty-four year old ordinances is completely inconsistent with Washington law that
prohibits ordinances that would bind local governments forever, especially in light of the
statutory requirement to continually assure that zoning and environmental regulations
are updated to take account of the latest standards and considerations.
June 4, 2018
Page 12
Thank you for consideration of SWC's views. Please do not hesitate to contact me if
you have any questions.
Sincerely,
PA . 7
uRu EuSTi , LLP
J. Richard Arambur Uv
JRA:cc
cc: Save Weyerhaeuser Campus