ORD 23-972 - Amending FWRC Regarding Development AgreementsORDINANCE NO.23-972
AN ORDINANCE of the City of Federal Way, Washington, relating to
amendments to Chapter 19.85 FWRC, Development Agreements;
amending FWRC 19.85.010,19.85.020,19.85.030,19.85.050; 19.85.060;
19.85.070; 19.85.080; 19.85.090; 19.85.110; 19.85.120; 19.85.130;
19.85.140; 19.85.150; 19.85.160; 19.85.180; 19.85.190; 19.85.200; and
19.85.210 (Amending Ordinance Nos. 02-426 and 09-594).
WHEREAS, the City of Federal Way ("City") recognizes the need to periodically modify
Title 19 of the Federal Way Revised Code ("FWRC"), "Zoning and Development Code," in order
to conform to state and federal law, codify administrative practices, clarify and update land use
and zoning regulations as deemed necessary, and improve the efficiency of the regulations and the
development review process; and
WHEREAS, the Washington Growth Management Act requires that development
regulations be subject to continuing evaluation and review; and
WHEREAS, the City has initiated code amendments to Chapter 19.85 FWRC,
Development Agreements, intended to clarify the permissible scope of development agreements
in the City; and
WHEREAS, State agencies received 60-day notice of the proposed amendments on July
28, 2023 (2023-S-6290); and
WHEREAS, this ordinance, containing amendments to development regulations and the
text of Title 19 FWRC, has complied with Process VI review, Chapter 19.80 FWRC, pursuant to
Chapter 19.35 FWRC; and
WHEREAS, an Environmental Determination of Nonsignificance ("DNS") was properly
issued for the proposed code amendments on August 4, 2023, no comments were received and the
Ordinance No. 23-972 Page I of 18
DNS was finalized on August 18, 2023, and no appeals were filed and the appeal period has
expired; and
WHEREAS, the Planning Commission properly conducted a duly noticed public hearing
on these code amendments on September 20, 2023, and forwarded a recommendation of approval
with minor modifications to the City Council; and
WHEREAS, the Land Use & Transportation Committee of the Federal Way City Council
considered these code amendments on October 2, 2023, and recommended adoption of the text
amendments.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Findings. The City Council of the City of Federal Way makes the following
findings with respect to the proposed amendments.
(a) The recitals set forth above are hereby adopted and restated as findings of fact.
(b) These code amendments are in the best interest of the residents of the City and will
benefit the City as a whole by providing clearer code provisions.
(c) These code amendments comply with Chapter 36.70A RCW, Growth Management.
(d) These code amendments are consistent with the intent and purpose of its title under
FWRC and will implement and is consistent with the applicable provisions of the Federal Way
Comprehensive Plan.
(e) These code amendments bear a substantial relationship to, and will protect and not
adversely affect, the public health, safety, and welfare.
(f) These code amendments have followed the proper procedures required under the
FWRC.
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Section 2. Conclusions. Pursuant to Chapter 19.80 FWRC and Chapter 19.35 FWRC, and
based upon the recitals and the findings set forth in Section 1, the Federal Way City Council makes
the following Conclusions of Law with respect to the decisional criteria necessary for the adoption
of the proposed amendments:
(a) The proposed FWRC amendments are consistent with, and substantially
implement, the following Federal Way Comprehensive Plan goals and policies:
LUG2 Develop an efficient and timely development review process based on a
public/private partnership.
LUN Maximize efficiency of the development review process.
LUP6 Conduct regular reviews of development regulations to determine how to
improve upon the permit review process.
EDP10 Continue to implement a streamlined permitting process consistent with state
and federal regulations to reduce the upfront costs of locating businesses or redeveloping
businesses in the City.
(b) The proposed FWRC amendments bear a substantial relationship to the public
health, safety, and welfare as they are intended to improve and clarify the use of development
agreements within the City. Development agreements are authorized under state law because the
lack of certainty in the approval of development projects can result in wasting of public and private
resources, escalation of housing costs for consumers, discouraging the commitment to
comprehensive planning, and failing to maximize efficient use of resources at the least economic
cost to the public. These amendments help to provide assurance to a development project applicant
that upon government approval the project may proceed in accordance with existing policies and
regulations as set forth in the city's development code and in the development agreement. As a
Ordinance No. 23-972 Page 3 of 18
result, these amendments will strengthen the public planning process, encourage private
participation and comprehensive planning, and reduce the economic costs of development.
(c) The proposed amendments are in the best interest of the public and the residents of
the City of Federal Way because they streamline permitting efficiency, reduce staffing costs for
permitting activities, and provide clarity to currently -ambiguous code sections thereby reducing the
need for director interpretations and the potential for appeals and/or litigation.
Section 3. FWRC 19.85.010 is hereby amended to read as follows:
19.85.010 Purpose.
Development agreements
age may be used at the city's Tdiscretion. Development agreements afete-may be used
where the project is larger in scope and/or has potentially larger impacts than normal, or where the
city eoufleil-may desire to place certain restrictions or permissions on the proposal, or in other
circumstances the city deems a ro riate. The intent of a development agreement is not to waive
requirements normally associated with a proposed use, rather to provide greater flexibility and
predictability to the applicant while providing a benefit to the city of equal or greater value relative
to any departure provided.
Section 4. FWRC 19.85.020 is hereby amended to read as follows:
19.85.020 Authority _ Scope — Consistency.
(1) Authorit. Pursuant to RCW 36.7013.170, the city may enter into a development agreement
with a person having ownership or control of real property within its jurisdiction as paA of .,
. The execution of a development
agreement is a proper exercise of city police power and contract authority. A development
agreement may obligate a party to fund or provide services, infrastructure, or other facilities. A
Ordinance No. 23-972 Page 4 of 18
development agreement shall reserve authority to impose new or different regulations to the extent
required by serious threat to public health and safety.
(2) Scope. Development agreements shall not be allowed for proposals that are smaller than 5
acres, or where the majority of the properties subject to the proposal are single-family residential
in use.
M Consistency with comprehensive plan. Development agreements shall be consistent with the
city comprehensive plan. If a comprehensive plan amendment is needed in order to make a
proposed development agreement consistent with Chapter 3 (Transportationj (Transportationof the comprehensive
plan, such comprehensive plan amendment must be considered and approved by the city council
at a city council meeting rior to the city council meeting at which final action is taken on the
development agreement.
Section 5. FWRC 19.85.030 is hereby amended to read as follows:
19.85.030 Content of development agreement.
(1) A development agreement must set forth the development standards and other provisions that
apply to and govern and vest the development, use, and mitigation of the development of the real
property for the duration specified in the agreement.
(2) A development agreement shall be consistent with all applicable city development regulations
except where modified by, or in conflict with, the development standards specified in the
development gUeement. In the case of such a modification or conflict, the development standards
specified in the development Weement shall control._ Modifications to, or departures from,
otherwise -applicable city development regulations in the development agreement shall, in the
Ordinance No. 23-972 Page 5 of 18
judgment of the city, be off set by providing a benefit to the city of equal or greater value relative
to the departure provided.
(3) A development agreement shall not modify or waive the provisions of Chapter 19.91 FWRC,
Trans nation Impact Fees and/or vest to traffic impact fee exce t a development agreement rna
provide for vesting to the traffic impact fee in effect at the time of a roval of the development
agreement for a period of up to ten years. For each year after the first, the amount of the vested
traffic im act fee shall be ad'usted by the annual change in the June Consumer Price Index(CPI)
for the Seattle area.
(4) A development agreement shall not modify or waive the provisions of Chapter 19.90 FWRC,
Transportation Concurrency Management.
(5) A development agreement shall not modify, waive, or vest to building, plug, fire, or other
construction codes adopted pursuant to RCW Ch. 19.27 or 19.27A.
(6) A development agreement shall not modify, waive, or vest to development regulations or other
enacted re uirements adopted pursuant to state or federal mandates such as the cit 's NPDES
municipal stormwater permit.
27 For the purpose of this section, "development standards" may include, but is not limited to:
(a) Project elements such as permitted uses, residential densities, and nonresidential
densities and intensities or building sizes;
(b) The amount and payment of impact fees imposed or agreed to in accordance with any
applicable provisions of state law, any reimbursement provisions, other financial
contributions by the property owner, inspections fees, or dedications;
Ordinance No. 23-972 Page 6 of 18
(c) Mitigation measures, development conditions, and other requirements under Chapter
43.21 C RCW. Design standards such as maximum heights, setbacks, drainage, and water
quality requirements, landscaping, and other development features;
(d) Affordable housing;
(e) Parks and open space preservation;
(f) Phasing;
(g) Review procedures and standards for implementing decisions;
(h) A build -out or vesting period for applicable standards; and
(i) Any other appropriate development requirement or procedure.
Section 6. FWRC 19.85.050 is hereby amended to read as follows:
19.85.050 Preparation of development agreement.
(1) Based on council direction, and ,
after consultation with the applicant, the city shall determine the parameters of the development
agreement in accordance with FWRC 19.85.030, Content of development agreement.
(2) If a development plan under FWRC_ 19.85.100 is required by the _city_or provided by the
applicant, it shall accompany the development agreement for review and action by the city council.
The applicant shall prepares any such development plan, which must be4is consistent with the
parameters of the development agreement. The development plan may vary in the amount of detail
to be included,
Section 7. FWRC 19.85.060 is hereby amended to read as follows:
19.85.060 Applications.
Ordinance No. 23-972 Page 7 of 18
(1) Who may apply. Any person may, personally or through an agent, apply for a decision regarding
property he or she owns.
(2) How to apply. The applicant shall file the following information with the department of
community development—,en4ees:
(a) A completed application, with supporting affidavits, on forms provided by the
department of community developments;
(b) Two sets of stamped envelopes, and a list of the same, labeled with the name and
address of all current owners of real property, as shown in the records of the county assessor
for the subject property, within 300 feet of each boundary of the subject property;
(c) A copy of the county assessor's map identifying the properties specified in subsection
(2)(b) of this section;
(d) A vicinity map showing the subject property with enough information to locate the
property within the larger area;
(e) Any information or material that is specified in the provision of this title that describes
the applied -for decision;
(f) All information specified in FWRC 19.15.040. The detail to be included in the
development plan is '
shall be related to the nature and scope of the project and its potential impacts; and
(g) Any additional information or material that the director of community development
setwices determines is reasonably necessary for a decision on the matter.
(3) Fee. With the application the applicant shall submit the fee established by the city. The
application will not be accepted unless it is accompanied by the required fee and meets the
Ordinance No. 23-972 Page 8 of 18
requirements of FWRC 19.15.040 and this section relating to what constitutes a complete
application.
Section 8. FWRC 19.85.070 is hereby amended to read as follows:
19.85.070 Official file.
(1) Contents. The city shall compile an official file on the application containing the following:
(a) All application materials submitted by the applicant.
(b) The staff report.
(c) All written comments received on the matter.
(d) The electronic recording of the city council on the matter.
(e) The decision on the development agreement by the city council.
(f) Any other information relevant to the matter.
(2) Availability. The official file is a public record. It is available for inspection and copying in the
department of community development series during regular business hours.
Section 9. FWRC 19.85.080 is hereby amended to read as follows:
19.85.080 Preapplications required.
All applicants seeking approval of a development agreement ,-ela4ed to an amendment to
must apply for a preapplication conference with the city's development review committee
(EDRC).
Section 10. FWRC 19.85.090 is hereby amended to read as follows:
19.85.090 Compliance with State Environmental Policy Act.
The State Environmental Policy Act applies to some of the decisions that will be made using this
chapter. The director of community development services shall evaluate each proposal and, where
Ordinance No. 23-972 Page 9 of 18
applicable, comply with the State Environmental Policy Act and with state regulations and city
ordinances issued under authority of the State Environmental Policy Act. Any appeal of the
threshold determination must be consolidated with any appeal of the administrative decision on
community design guidelines and with any hearing on an application for process IV approval.
Section 11. FWRC 19.85.110 is hereby amended to read as follows:
19.85.110 Timing of public hearings.
Any requests associated with the „ ems..,+-c,. ee development plan requiring a public hearing by
the hearing examiner shall be heard by the hearing examiner prior to the public hearing by the city
council on the development agreement and development plan. The hearing examiner's review shall
follow the provisions of Chapter 19.70 FWRC, Process IV — Hearing Examiner, and shall be
limited to that particular aspect under his or her purview and shall not extend to either the
development agreement or development plan.
Section 12. FWRC 19.85.120 is hereby amended to read as follows:
19.85.120 Factors to be considered in review of a development agreement.
The city may consider, but is not limited to, the following factors when considering a development
agreement:
(1) Compatibility with and impact on adjacent land uses and surrounding neighborhoods;
(2) Adequacy of and impact on community facilities including utilities, roads, public
transportation, parks, recreation, and schools;
(3) Potential benefits of the proposal to the community; and
(4) Effect upon ether aspeet the comprehensive plan.
Section 13. FWRC 19.85.130 is hereby amended to read as follows:
19.85.130 Notice.
Ordinance No. 23-972 Page 10 of 18
Notice provisions under this section shall be followed for the public hearing held by the city
council.
(1) Contents. The director of community development services -shall prepare a notice of the
proposal, for which a public hearing will be held, containing the following information:
(a) Description of purpose of hearing.
(b) The name of the applicant and the project name (if applicable).
(c) A statement of what comprehensive plan and zoning designation will be directly
affected or changed by the proposal.
(d) The street address of the subject property or, if this is not available, a description of the
location of the proposal in nonlegal language. Except for notice published in the newspaper
of general circulation in the city, the notice must also include a vicinity map that identifies
the subject property.
(e) The date, time, and place of the public hearing.
(f) A statement of the availability of the official file.
(g) A statement of the right of any person to submit written comments to the council and
to appear at the public hearing of the council to give comments orally.
(h) A statement that only persons who previously submitted comments to the planning
commission or city council during the comprehensive plan amendment process or at this
time, participates in the public hearing on the development agreement by submitting
written comments to the city council or by participating in the public hearing or specifically
requested a copy of the city council's decision on the development agreement and plan
may appeal the city council's decision.
Ordinance No. 23-972 Page 11 of 18
(i) The identification of existing environmental documents that evaluate the proposed
project and the location where the application and any studies can be reviewed.
(2) Distribution. The director of community development serviees shall distribute this notice at
least 14 calendar days before the public hearing as follows:
(a) A copy will be sent to the persons receiving the property tax statements for all property
within 300 feet of each boundary of the subject property.
(b) A copy will be published in the newspaper of general circulation in the city.
(c) A copy will be posted on each-4-the official notification boards of the city.
(3) Public notification sign -The applicant shall erect at least one public notification sign, which
complies with standards developed by the department of community developments. This
sign shall be located on or near the subject property facing the right-of-way or vehicle access
easement or tract providing direct vehicle access to the subject property. The director of
community development series -may require the placement of additional public notice signs on
or near the subject property if he or she determines that this is appropriate to provide notice to the
public.
(a) Timing. The applicant shall be responsible for installing the public notification sign or
signs at least 10 calendar days before the public hearing and removing them within seven
calendar days after the final decision of the city on the matter.
Section 14. FWRC 19.85.140 is hereby amended to read as follows:
19.85.140 Staff report.
(1) Contents. The director of community development ser-viees shall prepare a staff report for the
public hearing by the city council containing the following information:
(a) All pertinent application materials.
Ordinance No. 23-972 Page 12 of 18
(b) All comments regarding the matter received by the department of community
development sefviees-prior to distribution of the staff report.
(c) An analysis of the application under the relevant provisions of this title and the
comprehensive plan.
(d) A statement of the facts found by the director of community development sus -and
the conclusions drawn from those facts.
(e) A recommendation on the matter.
(2) Distribution. At least seven calendar days before the hearing, the director of community
development sen4ees-shall distribute the staff report as follows:
(a) A copy will be sent to the members of the city council.
(b) A copy will be sent to the applicant.
(c) A copy will be sent to each person who has specifically requested it.
Section 15. FWRC 19.85.150 is hereby amended to read as follows:
19.85.150 Public hearing and city council action.
(1) Generally. The city council shall consider the application for approval of the development
agreement and any associated development plan in a public hearing. If there are any appeals of a
hearing examiner's decision of an appeal of a threshold determination, an appeal of a community
design guidelines decision, or a process IV request, these appeals shall be heard in a closed record
appeal hearing, as defined in RCW 36.70B.020(1) at the same time as the public hearing on the
development agreement and any associated_ development plan.
(2) City council decision on appeals. In making a decision on the appeals, the council shall follow
Ai-t augh 19.70.250.
the procedures in process IV,^txt�nnC 1n��-7n.�210
Ordinance No. 23-972 Page 13 of 18
(3) Scope of review of development agreement and development plans. The city council shall
consider the request for approval of the development agreement and any associated development
plan based on the decisional criteria of this title describing the proposal.
(4) City council action. After consideration of the entire matter and upon approval by a majority
of the total membership, the city council shall take one of the following actions:
(a) The city council has the option to:
(i) Grant the application as proposed, or modify and grant the application. In either
case, it shall give effect to this decision by adopting an ordinance,
(ii) Deny the application. The city council shall give effect to a denial by adopting
a resolution.
(iii) Findings of fact and conclusions. The city council shall include in the ordinance
or resolution:
(A) A statement of the facts that support the decision, including any
conditions and restrictions that are imposed; and
(B) The city council's conclusions based on those facts.
(5) Effect. The decision of city council
is
the final decision of the city.
Section 16. FWRC 19.85.160 is hereby amended to read as follows:
19.85.160 Notice of final decision.
Ordinance No. 23-972 Page 14 of 18
(1) General. Following the final decision by the city council, the director of community
development serviees shall prepare a notice of the city's final decision on the application.
(2) Distribution. After the city council's decision is made, the director of community development
serviees shall distribute a copy of the notice of the final decision as follows:
(a) A copy will be mailed to the applicant.
(b) A copy will be mailed to any person who submitted written or oral comments to the
city council.
(c) A copy will be mailed to each person who has specifically requested it.
(d) A copy will be mailed to the King County assessor.
Section 17. FWRC 19.85.180 is hereby amended to read as follows:
19.85.180 Term of agreement.
Unless amended or terminated, a development agreement is enforceable during its term by a party
to the agreement. A development agreement and the development standards in the agreement
govern during the term of the agreement, or for all or part of build out period specified in the
agreement, and may not be subject to an amendment to a zoning ordinance or development
standard or regulation adopted after the effective date of the agreement unless specifically orovided
for in the a eement. A permit or approval issued by the city after the execution of the development
agreement must be consistent with the development agreement.
Section 18. FWRC 19.85.190 is hereby amended to read as follows:
19.85.190 Recording.
A development agreement shall be recorded within 90 days of the final decision by the ci council
with the King County department of records. During the term of the development agreement, the
agreement is binding on the parties and their successors.
Ordinance No. 23-972 Page 15 of 18
Section 19. FWRC 19.85.200 is hereby amended to read as follows:
19.85.200 Amendment of development agreement.
Amendments to the terms of the development agreement shall be done only by a written instrument
executed by all parties pursuant to the procedures of this chapter, or as may be amended, or as
otherwise provided for in the agreement. The city will process and decide upon an application for
an amendment as if it were an application for a new development agreement. unless otherwise
provided for in the agreement.
Section 20. FWRC 19.85.210 is hereby amended to read as follows:
19.85.210 Minor modification of development plan.
The director of community development semis —may approve minor modifications to the
development plan on a case -by -case basis using process III described in Chapter 19.65 FWRC.
Criteria for approving minor modifications include but are not limited to the following guidelines:
(1) Modifications shall conform to the terms of the development agreement;
(2) The change will not result in reducing the total landscaped area, buffer areas, or the amount of
open space on the project;
(3) The change will not result in increasing the residential density or gross floor area of the project;
(4) The change will not reduce any required yard;
(5) The change will not result in any increase in height of any structure;
(6) The change will not result in a change in the location of any access point to the project;
(7) The change will not increase any adverse impacts or undesirable effects of the project; and
(8) The change in no way significantly alters the project.
Any modification to the development plan not deemed to be minor shall be considered major and
shall be decided upon as if it were an application for a new development agreement.
Ordinance No. 23-972 Page 16 of 18
Section 21. Severability. The provisions of this ordinance are declared separate and
severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this
ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect
the validity of the remainder of the ordinance, or the validity of its application to any other persons
or circumstances.
Section 22. Corrections. The City Clerk and the codifiers of this ordinance are authorized
to make necessary corrections to this ordinance including, but not limited to, the correction of
scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any
references thereto.
Section 23. Ratification. Any act consistent with the authority and prior to the effective
date of this ordinance is hereby ratified and affirmed.
Section 24. Effective Date. This ordinance shall be effective five (5) days after passage and
publication as provided by law.
PASSED by the City Council of the City of Federal Way this 8th day of November, 2023.
[signatures to follow]
Ordinance No. 23-972 Page 17 of 18
ATTEST:
APPROVED AS TO FORM:
J. RYAN CALL, CITY ATTORNEY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
CITY OF FEDERAL WAY:
10/ 11 /2023
11/08/2023
11 / 17/2023
11 /22/2023
23-972
Ordinance No. 23-972 Page 18 of 18