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
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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.