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12-102044CITY O Federal Way DEPARTMENT OF COMMUNITY DEVELOPMENT SERVICES 33325 8th Avenue South Federal Way WA 98003 253-835-7000;Fax 253-835-2609 www.cityoffederalway.com DECLARATION OF DISTRIBUTION I, hereby declare, under penalty of perjury of the laws of the State of Washington, that a: ❑ Notice of Land Use Application/Action ❑ Notice of Determination of Significance (DS) and Scoping Notice ❑ Notice of Environmental Determination of Nonsignificance (SEPA, DNS) ❑ Notice of Mitigated Environmental Determination of Nonsignificance (SEPA, MDNS) ❑ Notice of Land Use Application & Optional DNS/MDNS ❑ FWRC Interpretation 0 Other ❑ Land Use Decision Letter ❑ Notice of Public Hearing -before the Hearing Examiner ❑ Notice of Planning Commission- Public Hearing ❑ Notice'of LUTC/CC Public Hearing ❑ Notice of Application for Shoreline Management Permit ❑ Shoreline Management Pemnit ❑ Adoption of Existing Environmental Document was ❑ mailed ❑ faxedl e-mailed and/or ❑ posted to or at each of the attached addresses on 2012. Project Name .c Tt G File Number(s) L2 -- L - N? Signature, t 1./_ Date L K:\CD Administration Files\Declaration of ❑istriWtion.docAwl printed 5/24/2012 4:20:00 PM Tina Piety From: Rudi Alcott <ralcott@fedwaymirror.com> Sent: Thursday, May 24, 2012 11:31 AM To: Tina Piety Subject: Re: Legal Notice No problem. W will get this in for you. Take care, -------------------- Rudi Alcott Publisher Federal Way Mirror p: 253.925.5565 x-1050 c: 253.336.5359 t: 206.390.5925 On Thu, May 24, 2012 at 10:46 AM, Tina Piety <Tina.Pie ci offederalwg .corn wrote: Hello, Please publish the attached legal notice (SEPA Interpretation, 12-102044-00-UP) in Friday's (5/25/12) issue. Please furnish an affidavit of publication. Thank you, Tina Piety, Administrative Assistant II Department of Community and Economic Development City of Federal Way 33325 8th Avenue South Federal Way, WA 98003-6325 253-835-26o1, Fax 253-835-2609 1 ,�k CITY of Federal Way NOTICE OF SEPA INTERPRETATION #12-01 (City Project File #12-102044-UP) Citation of Code Provision This interpretation is intended to clarify Federal Way Revised Code (FWRC) 14.15.020 (which adopts by reference Washington Administrative Code [WAC] 197-11-800[3] and WAC 197-11-800[2][e]), which are the two specific exemption provisions that require interpretation. The subjects of the interpretations are: (1) under what circumstances a Change of Use (COU) triggers SEPA; and (2) under what circumstances an addition to an existing building or facility triggers SEPA. Statement of Interpretation Interpretation 1 WAC 197-11-800(3), "Repair, Remodeling, and Maintenance Activities," exempts developments otherwise exempt when an "immaterial' COU occurs. If a "material" COU occurs, that may cause a project to lose its SEPA exempt status. COUs associated with buildings exempted by WAC 197-11-800(1) and (2), however, are exempt regardless of the nature of the COU. For the purpose of administering this SEPA provision, the following "material' categories of use are established: commercial; industrial/ manufacturing; single-family residential; multi -family residential; and institutional. COUs that occur within the categories will not affect the exempt status of a project. COUs from one category to another may cause projects to lose exempt status. Uses within each of the "material' categories are listed below. Where a use is not listed, the director shall determine which category it fits into. - Commercial: Retail, restaurants and taverns, services, professional office, medical offices, government offices, doctor/dentist offices and clinics, mixed -use developments (housing w/ office/retail/etc. in same structure), entertainment and recreational uses, parks, day cares, self- service storage, funeral homes and mortuaries, retail -auto repair, animal kennels, veterinary offices, hotels and motels, parking garages, gas stations, and similar uses. - Industrial/Manufacturing/Warehouse: Manufacturing, tow and impound lots, auto wrecking, warehouses, truck stops, hazardous waste treatment and storage, industrial laundry facilities, transfer stations, gravel batch plants, sewage treatment plants, heavy equipment storage, and similar uses. - Single -Family Residential: Single-family residences, duplexes, townhouses, cottage housing, accessory dwelling units, and similar uses. - Multi -Family Residential: Multi -family residential uses, senior housing, assisted living facilities, nursing homes and convalescent centers, social services transitional housing, mobile home parks, and similar uses. - Institutional: Churches and places of worship, schools and colleges, hospitals, group homes, correctional facilities, utilities, cemeteries, government facilities (not offices), and similar uses. - Adult Entertainment: Any use that changes to an adult entertainment use shall be considered a COU. An adult use that changes to a non -adult use shall not be considered a COU (for the purpose of triggering SEPA review). File 412-102044-00-UP Doc ID 61197 Interpretation 2 WAC 197-11-800(2)(e), "Additions or Modifications," exempts additions to buildings and facilities when such additions are equal to or less than the size of exemptions listed in section 197-11-800(1), except not when such addition causes the building/facility to go from an exempted size to a non-exempt size. Date of Interpretation May 25, 2012 Availability of Official File The official project file is available for review at the City of Federal Way Department of Community and Economic Development (Federal Way City Hall, 33325 8'1` Avenue South, Federal Way, WA 98003), 253-835-2607, from 8 a.m. to 5 p.m., Monday through Friday. City Staff Contact Planning Manager Isaac Conlen, 253-835-2643 Published in the Federal Way Mirror on May 25, 2012. Notice of SEPA Interpretation — Change of Use & Size of Addition Exemptions Page 2 File N12-102044-00-UP Doc l.D 61197 Federal Way NOTICE OF SEPA INTERPRETATION #12-01 (City Project File #12-102044-UP) Citation of Code Provision This interpretation is intended to ciarifyFederal Way Revised Code (FWRC) 14.15.020 (which adopts by reference Washington Administrative Code [WAC] 197-11-800[3] and WAC 197-11-800[21[e]), which arethetwo specific exemption provisions that require interpretation. The sabjacts of the interpmtationsare: (1) under what circumstances a Change of Use (COU) triggers SEPA; and (2) under what circumstances an addition to an existing building or facility triggers SEPA. Statement of Interpretation Interpretation 1 WAC 197-11-800(3), "Repair, Remodeling, and Maintenance Activities," exempts developments otherwise exemptwhen an "immaterial" COU occurs. If a "material' COU occurs, that may cause a project to lose its SEPA exempt status. COUs associated with buildings exempted by WAC 197-11-800(1) and (2), however, are exempt regardless of the nature of the COU. For the purpose of administering this SEPA provision, the following "material" categories of use are established: commercial; industrial/ manufacturing; single-family residential; multi- family residential; and institutional. COUs that occur within the categories will notaffectthe exempt status of a project. COUs from one category to another may cause -projects toloseexemptstatus. Uses within each of the "material' categories.are listed below. Where a use is not listed, the director shall determine which category it fits into. - Commercial: Retail, restaurants and taverns, services, professional office, medical offices, government offices, doctor/dentist offices and clinics, mixed -use developments (housing w/ office/ retail/etc. in same structure), entertainment and recreational uses, parks, day cares, self-service storage, funeral homes and mortuaries, retail -auto repair, animal kennels, veterinary offices, hotels :and motels, parking garages. gas stations, and similar uses. - Industrial/Manufacturing/Warehouse: Manufacturing, towand impound lots, auto wrecking, warehouses, truck stops, hazardous waste treatment and storage, industrial laundry facilities, transfer stations, gravel batch plants, sewage treatment plants, heavy equipment storage, and.similar uses. -Single-Family Residential: Single-family residences, duplexes, townhouses, cottage housing, accessory dwelling units, and similar uses. - Multi -Family Residential: Multi -family residential uses, senior housing, assisted living facilities, nursing homes and convalescent centers, social services transitional housing, mobile horse parks, and similar uses. - Institutional: Churches and places of worship, schools and colleges, hospitals, group homes, correctional facilities, utilities, cemeteries, government facilities (not offices), and similar uses. - Adult Entertainment: Any use that changes to an adult entertainment use shall be considered a COU. An adult use that changes to a non -adult use shall not be considered a COU (for the purpose of triggeri SEPA review). Interpretation 2 WAG 197-11-800(2)(e)."AdditionsorModifications," exempts additions to buildings and facilities when such additions are equal to or less than [he size of exemptions listed in section 197-11-800(1), except not when such addition causes the building/facilityto go from an exempted size to a non-exempt size. Date of Interpretation May 25, 2012 Availability of Official File The official project file is available for review at the 04 of Federal Way Depariment of Community an 1. Economic Development (Federal Way City Hal 1,33325• 8th Avenue South, Federal Way, WA 98003), 253- 835-2607, from 8 a.m. to 5 p.m., Monday through Friday. City Staff Contact Planning Manager Isaac Conlon, 253-835-2643 Published in the Federal Way Mirror on May 25, 2012. FWM 1897 FWM 1gg7 Y Y 31919 1 S, Ave S, Suite 101 1 Federal, Way, WA 98003 1253.925.5565 1253.925.5750 (f) Affidavit of Publication Rudi Alcott, being first duly sworn on oath, deposes and says that he is the Publisher of The Federal Way Mirror, a weekly newspaper. That said newspaper is published in the English language continually as a weekly newspaper in Federal Way, King County, Washington, and is now and during all of said time has been printed in an office maintained by the aforementioned place of publication of said newspaper. That the annexed is a true copy of a legal advertisement placed by City of Federal Way - Economic Development as it was published in regular issues (and not in supplemental form) of said newspaper once each week for a period of one consecutive weeks(s), commencing on the 25th day of May 2012, and ending on the 25th day of May 2012, both dates inclusive, and that such newspaper was regularly distributed to its readers during all of said period. That the full amount of the fee charged for the foregoing publication is the sum of $162.95, which amount has been paid in full, or billed at the legal rate according to RCW 65.16.090. Subscribed to and sworn before me this 1 st day of June 2012. Notary Public in and for the State of Washington, ��lCRep lllllll� �5� SsioH'• f 4�i (VOTARY � i PUBLIC �. ,i �� � WAS ; �;��`� 111 Residing at Federal Way (CITY OF 1 Department of Community and Economic Development SEPA Interpretation #12-01 SUBJECT Categorical exemptions for projects that involve a change of use (COU) and categorical exemptions for additions to buildings/facilities when such buildings/facilities already exceed categorical exemption levels. This interpretation is intended to clarify Federal Way Revised Code (FWRC) 14.15.020 (which adopts by reference Washington Administrative Code [WAC] 197-11-800[3] and WAC 197-11-800[2][e]), which are the two specific exemption provisions that require interpretation. The remainder of this document will refer to the WAC provisions for clarity. Each interpreted provision is listed below (in relevant part) followed by the city's interpretation. WAC 197-11-800(3) — COU "(3) Repair, remodeling and maintenance activities. The following activities shall be categorically exempt: The repair, remodeling, maintenance, or minor alteration of existing private or public structures, facilities or equipment, including utilities, involving no material expansions or changes in use beyond that previously existing" Interpretation 1 WAC 197-11-800(3), "Repair, Remodeling, and Maintenance Activities," exempts developments otherwise exempt when an "immaterial" COU occurs. If a "material" COU occurs, that may cause a project to lose its SEPA exempt status. COUs associated with buildings exempted by WAC 197-11-800(1) and (2), however, are exempt regardless of the nature of the COU. For the purpose of administering this SEPA provision, the following "material" categories of use are established: commercial; industrial/manufacturing; single-family residential; multi -family residential; and institutional. COUs that occur within the categories will not affect the exempt status of a project. COUs from one category to another may cause projects to lose exempt status. Uses within each of the "material" categories are listed below. Where a use is not Iisted, the director shall determine which category it fits into. Commercial: Retail, restaurants and taverns, services, professional office, medical offices, government offices, doctor/dentist offices and clinics, mixed -use developments (housing with office/retail/etc. in same structure), entertainment and recreational uses, parks, day cares, self-service storage, funeral homes and mortuaries, retail -auto repair, animal kennels, veterinary offices, hotels and motels, parking garages, gas stations, and similar uses. I`rdustrial/Manufacturifigl'Wureliouse: Manufacturing, tow and impound lots, auto wrecking, warehouses, truck stops. hazardous waste treatment and storage, industrial laundry facilities, transfer stations, gravel batch plants, sewage treatment plants, heavy equipment storage, and similar uses. Single -Family Residential. Single-family residences, duplexes, townhouses, cottage housing, accessory dwelling, units, and similar uses. SEPA Interpretation 912-01 Page 1 riieu12-102044-00-uNruoo, i u p1 us Multi -Family Residential: Multi -family residential uses, senior housing, assisted living facilities, nursing homes and convalescent centers, social services transitional housing, mobile home parks, and similar uses. - Institutional: Churches and places of worship, schools and colleges, hospitals, group homes, correctional facilities, utilities, cemeteries, government facilities (not offices), and similar uses. Adult Entertainment: Any use, which changes to an adult entertainment use shall be considered a COU. An adult use that changes to a non -adult use shall not be considered a COU (for the purpose of triggering SEPA review). WAC 197-11-800(2)(e) —Additions "(e) Additions or modifications to or replacement of any building or facility exempted by subsections (1) and (2) of this section when such addition, modification or replacement will not change the character of the building or facility in a way that would remove it from an exempt class." Interpretation 2 WAC 197-11-800(2)(e), "Additions or Modifications," exempts additions to buildings and facilities when such additions are equal to or less than the size of exemptions listed in section 197-11-800(1), except not when such addition causes the building/facility to go from an exempted size to a non- exempt size. DISCUSSION Interpretation 1 WAC 197-11-800(3), "Repair, Remodeling, and Maintenance Activities" The above -referenced provision states that repair, remodeling, maintenance, and minor alterations of existing structures/facilities involving no material expansions or changes in use beyond that previously existing are exempt. The word "material" qualifies the term "change of use." The provision is unclear; however, as the term "material" is not defined.' For this reason, an interpretation is necessary. Notice that the discussion of COU is only relevant if the building is over the standard exemption size of WAC 197-11- 800(1) and (2). COUs in smaller buildings do not trigger SEPA under any circumstances. COUs that have little to no externalized impact should be considered "immaterial" and should not trigger SEPA. "Material" COUs should be limited to those that may have negative impacts on surrounding properties or the city at large. Therefore, it is necessary to determine which COUs are material and which are not. One way to do this would be to evaluate each COU on a case -by -case basis to try to detennine the extent of potential externalized impacts and thus, whether a COU is material or not. Such a method is subjective as it relies on individual judgment of impacts. This can be difficult given the wide variety of circumstances encountered between different projects. The outcomes of such subjective evaluations are likely to be inconsistent. This method is also resource intensive and time consuming. Alternatively, the city's interpretation clarifies an objective standard to determine when a COU is "material." Uses are grouped into broad defined -categories with similar characteristics. When a use changes 1 The Merriam -Webster dictionary dc11nes material as, --... having real importance or great consequences." SEPA Interpretation 912-01 Page 2 File 4i2-J02u4.4-0.1-LN Doc 1 13 61108 to another use within the same broad category, by definition, it is considered to be immaterial and thus does not trigger SEPA. Conversely, if a COU occurs from one broad category to the next, by definition, a material COU has occurred and SEPA may be triggered. The interpretation clarifies an unclear provision of the WAC. The interpretation makes sense and is in keeping with the intent of SEPA. Potentially significant projects must undergo a threshold determination and insignificant/immaterial projects are exempted? Internretation 2 WAC 197-11-800(2)(e), "Other Minor Construction The above -referenced provision exempts, "Additions or modifications to or replacement of any building or facility exempted by subsections (1) and (2) of this section when such addition, modification or replacement will not change the character of the building or facility in a way that would remove it from an exempt class." There are two ways this language can be read. Option one is to interpret that the phrase "...exempted by subsections (1) and (2)..." is intended to apply to the term "building or facility," which to be clear, means the existing building or facility. Under this.interpretation, it is implied that additions of any size to existing buildings/facilities, which existing building or facility already exceeds the size thresholds of subsection (1) and (2), would trigger SEPA. For example, an addition of as little as one square foot to a building that already exceeds the SEPA exemption level would trigger SEPA review and a threshold determination. The only type of additions that would be exempt would be additions to existing buildings/facilities where the resulting building/facility after the addition remains under the standard exemption level. Is this a reasonable interpretation? No, it is not a reasonable interpretation for the following three reasons. First, taking the one -square foot example, the result (that SEPA would be triggered) is ludicrous on its face. No reasonable person would suggest that a one -square foot addition or other small addition of that nature is an appropriate trigger for significant impact evaluation. Secondly, if the provision IS interpreted as described above, it adds nothing to the discussion. Basically it is telling you that if you have a building under the exempted size and do an addition to it, and after the addition the building remains under the exempted size, the building is exempt. This is stating the obvious. Of course any number of additions that add up to a total square footage under the standard exempt level would be exempt. Third, it is illogical to trigger SEPA review for very small additions, while at the same time allowing large square footage exemptions for new improvements. Why would a 12,000 square foot (the city's standard exemption level) addition to an existing commercial building have more likelihood of significant impact than a new 12,000 square foot building? (In fact; it would likely have less impact because the site of the addition is already disturbed, while the site of the new building is much more likely to be undisturbed.) The second option (the interpretation that the city is making) is to interpret that the phrase "...exempted by subsections (1) and (2)..." is intended to apply to the term "additions." Under this interpretation, an addition to an existing building, which existing building exceeds the size threshold of subsection (1) and (2), would be exempt from S EPA, provided the add it.ion is less than or equal to the size threshold of subsection (1) and (2) 3 '- In some instances a COU between uses in different broad categories might have very little likelihood of causing externalized impacts based on the particular characteristics of the case —yet SEPA will be triggered. Conversely_ on occasion uses within the same broad category may appear to result in externalized impacts. again based on the particular characteristics of the case —yet SEPA will not be triggered. These circumstances are expected to be infrequent and are accepted as a trade-off for the predictability and objectivity that come with the defined -category method. ' Section 2.3.3.5, "Tips_" ofthe SEPA Handbook, published by the Washington State Department of Ecology (Ecology) states that. "SEPA is required for any addition when the total square footage of the building (old plus new) exceeds the threshold adopted by the local jurisdiction. if a building is not exempt at the time of construction. neither \\ ould anv additions to the building be exempt." I'his guidance is clearly at odds with the city's above interpretation. For the reasons cited above, we feel our interpretation is correct. SEPA Interpretation#12-01 Page hiat12-102044-00-UP/Doc, ID 61109 This interpretation makes sense and is in keeping with the intent of SEPA. It results in a logical outcome. Additions are held to the same threshold as new buildings/facilities. Note, this interpretation does not exempt additions to existing buildings where the result of the addition is that an exempt building/facility increases in size and crosses the SEPA threshold as a result of the addition. That circumstance would trigger SEPA under the interpretation. INTERPRETATION AUTHORITY WAC 197-11-904, "Agency SEPA Procedures," authorizes cities to adopt administrative rules and procedures to implement SEPA. CONCLUSION The above interpretations are necessary to clarify ambiguous provisions of the WAC related to SEPA exemptions. Patrick Doherty, Community and Economic Development Director / Date 1 SE PA I nterpretation # 12-01 PaV4 File #12-102044-00-1P Doc I D o I 1N Isaac Conlen From: Peter Beckwith Sent: Friday, April 27, 2012 9:03 AM To: Isaac Conlen Subject: RE: SEPA Interpretations Good Morning Isaac, don't know if the notice issue has been discussed before. WAC 197-11-904(3) contemplates a public notice/comment but gives the City the discretion in whether it's by rule, ordinance or resolution. Since 14.10.010(3) gives the director authority to adopt rules there is some flexibility in how it's done - provided there is public notice and comment. 19.50 gives some process for interpretations but misses the commenting requirement. One option might be to follow the notice/comment process for a DNS. Pb Agency filings affecting this section WAC Agency SEPA procedures. (1) Each agency is required by the act and this section to adopt its own rules and procedures for implementing SEPA. (RCW 43.21 C.120.) Agencies may revise or add to their SEPA procedures at any time. Agencies may adopt these rules (chapter 197-11 WAC) by reference, and shall meet the requirements of WAC 197-11-906 concerning the content of their procedures. State and local rules for carrying out SEPA procedures are called "agency SEPA procedures." (2) State agencies shall adopt or amend their procedures within one hundred eighty days of the effective date of this chapter or subsequent revisions, or within one hundred eighty days of the establishment of an agency, whichever shall occur later. State agencies shall adopt their procedures by rule making under the state Administrative Procedure Act, chapter 34.05 RCW. If a state agency does not have rule making authority under chapter 34.05 RCW, the agency shall adopt procedures under whatever authority it has, and public notice and opportunity for public comment shall be provided. Adoption shall be deemed to have taken place at the time the transmittal of adopted rules is filed with the code reviser. (3) Local agencies shall adopt or amend their procedures within one hundred eighty days of the effective date of this chapter or subsequent revisions, or within one hundred eighty days of the establishment of the local governmental entity, whichever shall occur later. Local agencies shall adopt their procedures by rule, ordinance, or resolution, whichever is appropriate, to ensure that the procedures have the full force and effect of law. Public notice and opportunity for public comment shall be provided as part of the agency's process for adopting its SEPA procedures. (4) Any agency determining that all actions it is authorized to take are exempt under Part Nine of these rules may adopt a statement to the effect that it has reviewed its authorized activities and found them all to be exempt under this chapter. Adoption of such a statement under the procedures in subsections (2) and (3) shall be deemed to be in compliance with the requirement that the agency adopt procedures under this chapter. (5) The adoption of agency procedures is procedural and shall be categorically exempt under this chapter (WAC 197-11-800(19)) 14.10.010 Designation of responsible official. (1) For those proposals for which the city is a lead agency, the responsible official shall be the director of the department of community development. The responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement, and perform any other functions assigned to the lead agency or responsible official by the State Environmental Policy Act rules. (2) The responsible official shall be responsible for the city's compliance with Chapter 197-11 WAC whenever the city is a consulted agency, and is authorized to develop operating procedures that will ensure that responses to consu;,ation requests are prepared in a time.y fashion and include data from all appropriate departments of the city. (3) The director of the department of community development has the authority to adopt rules and regulations to carry out the provisions of this title and has the authority to administer and enforce this title and any such rules and regulations. It is unlawful to violate or fail to comply with any provision of this title or any such rule or regulation. From: Isaac Conlen Sent: Thursday, April 26, 2012 5:03 PM To: Peter Beckwith Subject: SEPA Interpretations Hi Peter. You and Patrick had some back and forth about the SEPA interpretations we want to make in connection with the c-o-u code amendment. You had suggested we amend the code rather than do interpretations. We looked at that, but do tc the way it's structured (heavily reliant on references) that would be difficult at this time (I'd like to do it in the future). Back to the interpretations — do you know what we need to do in terms of providing notice? I thought we got into that, but can't find that discussion in any old emails. Thanks.