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Res 09-542 RESOLUTION NO. 09-542 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, W ASIDNGTON, RECOMMENDING APPROVAL OF THE STEEL LAKE CREST PRELIMINARY PLAT, FEDERAL WAY FILE NO. 07-103897-00-SU. WHEREAS, the owners, Steel Lake Plat Group, LLC, applied to the City of Federal Way for preliminary plat approval to subdivide certain real property known as Steel Lake Crest, and consisting of 6.77 acres into twenty-eight (28) single-family residentia110ts located south of 304th Street and east of 28th Avenue South; and WHEREAS, on October 4, 2008, an Environmental Mitigated Determination of Nonsignificance (MDNS) was issued by the Director of Federal Way's Department of Community Development Services pursuant to the State Environmental Policy Act (SEP A), Chapter 43.21 C; RCW, and WHEREAS, on November 7, 2008 Senior Planner, Joanne Long-Woods, submitted a staffreport to the Federal Way Hearing Examiner with a recommendation of denial of the proposed preliminary plat; and WHEREAS, the Federal Way Hearing Examiner on November 17,2008, held a public hearing concerning Steel Lake Crest preliminary plat; and WHEREAS, the applicant requested an extension of time on the issuance of the Hearing Examiner's decision until February 17,2009; and WHEREAS, following the conclusion of said hearing, on March 3, 2009, the Federal Way Hearing Examiner issued a written Report and Recommendation containing findings and conclusions, and recommending approval of Steel Lake Crest preliminary plat subject to conditions set forth therein; and WHEREAS, the Federal Way City Council has jurisdiction and authority pursuant to Section 20- 127 of the Federal Way City Code to approve, deny, or modify a preliminary plat and/or its conditions; and WHEREAS, on March 16, 2009 the City Council Land Use and Transportation Committee considered the record and the Hearing Examiner recommendation on Steel Lake Crest preliminary plat, Resolution No. 09-542 Page 1 of 16 pursuant to Chapter 20 of Federal Way City Code, Chapter 58.17 RCW, and all other applicable City codes, and voted to forward a recommendation for APPROV AL of the proposed Steel Lake Crest preliminary plat to the full City Council, with ~ changes to the Hearing Examiner recommendation; and WHEREAS, on April 7, 2009, the City Council considered the record and the Hearing Examiner recommendation on Steel Lake Crest preliminary plat, pursuant to Chapter 20 of Federal Way City Code, Chapter 58.17 RCW, and all other applicable City codes. Now THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Adoption of Findings of Fact and Conclusions. 1. The findings of fact and conclusions of the Hearing Examiner's March 3, 2009 Report and Recommendation, attached hereto as Exhibit A and incorporated by this reference, are hereby adopted as the findings and conclusions of the Federal Way City Council. Any finding deemed to be a conclusion, and any conclusion deemed to be a finding, shall be treated as such. 2. Based on, inter alia, the analysis and conclusions in the Staff Report and Hearing Examiner's recommendation, and conditions of approval as established therein, the proposed subdivision makes appropriate provisions for the public health, safety, and general welfare, and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary waste, parks and recreation, play grounds, schools and schools grounds, and all other relevant facts as are required by City code and state law, and provides for sidewalks and other planning features to assure safe walking conditions for students who walk to and from school. 3. The public use and interest will be served by the preliminary plat approval granted herein. Section 2. Application Approval. Based upon the recommendation of the Federal Way Hearing Examiner and findings and conclusions contained therein as adopted by the City Council immediately above, Steel Lake Crest preliminary plat, Federal Way File No. 07-103897-00 SU, is hereby approved, Resolution No. 09-542 Page 2 of 16 subject to conditions as contained in the March 3, 2009 Report and Recommendation of the Federal Way Hearing Examiner (Exhibit A). Section 3. Conditions of Approval Integral. The conditions of approval of the preliminary plat are all integral to each other with respect to the City Council finding that the public use and interest will be served by the platting or subdivision of the subject property. Should any court having jurisdiction over the subject matter declare any of the conditions invalid, then, in said event, the proposed preliminary plat approval granted in this resolution shall be deemed void, and the preliminary plat shall be remanded to the City of Federal Way Hearing Examiner to review the impacts of the invalidation of any condition or conditions and conduct such additional proceedings as are necessary to assure that the proposed plat makes appropriate provisions for the public health, safety, and general welfare and other factors as required by RCW Chapter 58.17 and applicable City ordinances, rules, and regulations, and forward such recommendation to the City Council for further action. Section 4. Severability. If any section, sentence, clause, or phrase of this resolution should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this resolution. Section 5. Corrections. The City Clerk and the codifiers of this resolution are authorized to make necessary corrections to this resolution including, but not limited to, the correction of scrivener/clerical errors, references, resolution numbering, section/subsection numbers and any references thereto. Section 6. Ratification. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affirmed. Section 7. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City Council. Resolution No. 09-542 Page 3 of 16 RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, THIS 7TH DAY OF APRIL, 2009. ATTEST: CMaJ ~"fI) CITY CLERK, 0 C. . y APPROVED As To FORM: I~ii. ~ CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: 03-31-2009 PASSED By THE CITY COUNCIL: 4-7-2009 RESOLUTION No. 09-542 Resolution No. 09-542 CITY OF FEDERAL WAY Page 4 of 16 BEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY Phil Olbrechts, Heming Examiner RE: Steel Lake Plat Group Preliminary Plat 07-103897-00-SU FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION INTRODUCTION The applicant requests approval of a preliminary plat to subdivide 6.77 acres into 28 lots for establishment of a single-family residential housing development. The Examiner recommends approval of the application, subject to some potential modification of the proposed clearing and grading. ORAL TESTIMONY Isaac Coni en - Planning Manager Mr. ConIen made a short introduction of the Staff's recommendation of denial of this proposal. He stated that although this is not the normal recommendation from the Staff, due to an inability of the applicant and staff to come to a consensus regarding issues pertaining to grading and clearing, they felt that the project was not consistent with applicable Federal Way standards and policies. Joanne Long-Woods - Federal Way Senior Planner Ms. Long-Woods introduced the basics of the project for the hearing. all of which is in the Staff Report and in the Finding of Facts. She also addressed mitigation measures that have been proposed regarding noise from 1-5 being blocked from the proposed project as well as the geotechnical studies that have revealed buried debris piles. The planner also specifically addressed the issues of clearing and grading that has been proposed. The overall change in elevation is approximately 70 feet across the site, and the average slope is 9.3%; however, on 6 of the lots the slope is reaching 40%. Overall, 90% of the site will need to be graded. The grading will result in 17,000 cubic yards of fill brought onto the site and will result in significant cut areas as well. She discussed these actions in relation to Chapter 9 of the Federal Way Code, the general policy of which is that as slopes increase, development in those areas should decrease and that slopes of 40% should be retained in order to prevent erosion and stormwater problems. Finally, in response to a question from the Hearing Examiner, she stated that she did not have any outstanding concerns regarding stormwater drainage resulting from the site. Brant Schwiekel - Project Planner/Engineer for Applicant with 20 years experience in the field Mr. Schwiekel began by stating the hardships he faced while designing the internal roadway for the development due to the actions of the Staff. He also stated his disagreement with the requirement of the City to install pedestrian walkways along Military Road South, as he believes it is unsafe for motorists and oedestrians alike, but the idea was incorporated into the {PA0721500.DOC; 1/13041.150017/1 Preliminary Plat Recommendation Findings, Conclusions and Recommendation plan in order to move the project forward. In addition, he discussed the sight distance requirements for King County being met by the proposed plan and that the grading of slopes would be necessary to build the approved road. Mr. Schwiekel then began addressing the concerns raised regarding the slopes and grading that have been proposed. He stated that the slopes were not natural to the site, as they had resulted from previous grading work, and that without the mass grading proposed, there would be no collection gradient available for stormwater lUnoff. The road would be elevated and the stormwater pond would be uphill from the entire infrastructure, serving no purpose. In the proposal, the applicants will not be developing the site themselves, and because of this, it would be better to allow them to do all of the grading and clearing rather than leave it up to the multiple potential builders that could be involved. Also, he.discussed the concept that mass grading works for developments, because it is conducive to families that want a normal flat yard and a normal flat driveway, rather than sloping on their property. He also pointed out that the density proposed for this site is necessary and appropliate for Federal Way in order to create livable housing and to bring in property tax. Mr. Schwiekel also addressed his frustration with the Planning Staffs inability to give him standards to follow based on the language of applicable code sections, and he also believes that the new regulations are harsh on the development community and will significantly increase the difficulty to build in the City. He also stated a basic unwillingness to reduce the number of lots on the project in order to avoid building on the 40% slopes but did not really state a specific reason for this stance other than believing that he and the applicants have done their best to meet the requirements of the regulations. In his rebuttal, Mr. Schwiekel restated his belief that future citizens and residents want flat lots, flat backyards for their kids, and flat driveways that are more that access points to their garages, and the best way to handle this desire is to handle it now, under the guise of one entity, rather than waiting for each individual property owner to deal with it themselves. He also states that flat lots allow for contractors to install standard foundations, rather than foundations that are much more complicated and costly. In his belief, the only way this site can be developed is using the current proposal. In his closing, he showed photographs of homes on 15% slopes in other developments in Federal Way, and once again requested that the City provide him with specific criteria relating to the applicable regulations. Allen W oida - Applicant/Owner Mr. Woida basically outlined the route the project has taken in order to get to the current application proceeding. He also thinks that the plan is in the best interest of the City as well as the residents. And finally, he stated his belief that the applicable code language regarding grading and slope is not firm language, and the applicants should be granted a leniency, within reason, when interpreting the language of the applicable regulations. Margaret Raner - Neighbor living on Steel Lake Ms. Raner stated her concern over clear cutting the land and the grading procedures that would take place should the project be approved. She also stated that she believes there will be an adverse affect on the environment due to the removal of all but 19 trees and also that the proposal should not have been granted an exemption from the Shoreline Substantial Development Permit. Finally, she stated her agreement with the Staffs denial recommendation. Gloria Trinidad - Applicant/Owner {PA0721500.DOC;I/l3041.ISOOI71} Preliminary Plat Recommendation Findings, Conclusions and Recommendation Ms. Trinidad stated that she does not believe that the clearing of the trees will have an environmental impact and that the trees on site are alder trees, and as such are useless. Ms. Trinidad also discussed her belief that the neighborhood is beginning to resemble a slum, and new development is necessary to revive the neighborhood. Ken Miller - Deputy Public Works Director Mr. Miller testified that from an engineering standpoint, Mr. Schwiekel's design is standard and appropriate and that stormwater is not a concern of the Public Works Department at this stage. He also discusses the code and the intent of the code to use the existing topography of the land rather than to mass grade the property. In addressing the applicant's request for the City to provide specific standards and definitions to follow regarding the regulation, Mr. Miller states that specific criteria are difficult to give because of the uniqueness of each individual proposed lot and of the site overall. He also stated that although the applicant expressed concern over the safety of providing pedestrian walkways along Military Road, this is incorporated into the City's pedestrian facilities plans and the walkways required of the applicant will connect to future walkway construction along Military Road. EXHIBITS See list of exhibits at p. 16 of the November 7, 2008, staff report prepared by Joanne Long- Woods and also: Exhibit T: Exhibit U: Exhibit V: Exhibit W: Exhibit X: Email from David Kaplan on November 12, 2008 PowerPoint presentation by Joanne Long-Woods Site diagrams provided by Brant Schwiekel Photos of current homes on 15% slope Letter from Deb Barker FINDINGS OF FACT Procedural: 1. Applicant. The applicant is Steel Lake Plat Group, with owners Verlin & Linda Elder, Al Woida, and Mike & Gloria Trinidad. 2. Hearing. The Hearing Examiner conducted a hearing on the application at 2:00 p.m. at Federal Way City Hall on November 17, 2008. The applicant requested, and was granted, several extensions on the issuance of a recommendation by the Examiner. The last extension expired on February 17,2009. Substantive: 3. Site/Proposal Description. The applicant proposes to subdivide approximately 6.77 acres into 28 lots for establishment of a single-family residential housing development, with public streets, sewer, and water services. Transportation improvements will include half-street frontage improvements and dedication of 9 feet of additional right-of-way along 28th Avenue South, an internal loop roadway with curb, gutter, and sidewalks. Approximately 1.61 acres will be ( PA072IS00.DOC;1I13041.1S0017/} Preliminary Plat Recommendation Findings, Conclusions and Recommendation dedicated to public right-of-way and .61 acres will be allocated for storm drainage facilities, landscaping tracts along 28th Avenue South and Military Road South, and an 8-foot-wide pedesnian pathway that runs along the nOltheast edge of the plat to Military Road South. The site consists of four parcels, is rectangular in shape, and fronts onto 28th A venue South to the west and Interstate 5 right-of-way and Military Road South to the east. There are currently three single-family residences, a shed, barn, and swimming pool on the lots. All structures are planned to be demolished. The site naturally slopes from the southwest comer to the northeast comer, and there is an approximate drop of 70 feet across the site, with an average slope of 9.3%. There are a few small areas where the average slope exceeds 40%. The majority of the steep slopes are near the existing houses and are a result of prior grading activities on the site. The slopes on the south edge of the site are typically 15% or greater. The vegetation on site is primarily deciduous trees with some large evergreens located on the east side of the propelty, as well as vine maples, cedars, blackberry bushes, and nettles. There are over 200 trees on the site, and 87 have been identified as significant. There are also deer and songbirds existing on the subject property. Steel Lake is located within 200 feet of the proposed preliminary plat and would usually require the applicants to apply for a Shoreline Substantial Development Permit, but the Director of Community Development exempted the proposal from such a permit. 4. Characteristics of the Area. The property is situated in the central portion of the City in an already developed single-family residential area. The properties are located south of 308th with 28th Avenue South bordering the west side and the Interstate 5 right-of-way con'idor on the east side. Single-family residences border the property to the north, west, and south. There are many significant trees surrounding the property as well. 5. Adverse Impacts. A. Cleating and Grading. Staff have recommended denial of this project due to massive clearing and grading. However, staff have not identified any adverse impacts associated with this clearing and grading. In fact, staff tl ;tified that the clearing and grading will not create any drainage problems. There is no evidence supporting a finding for any adverse impacts associated with the proposed clearing and grading. B. Tree Retention. Neighbors and staff expressed concern for the amount of trees removed by the project. The City's tree retention requirements set the standard for acceptable levels of tree retention. As noted in the staff report, the project complies with the City's tree retention requirements. There are no other adverse impacts discern able from the record. 6. Adequacy of Infrastructure and Public Services. As mitigated by staff, adequate infrastructure will serve development as follows: . Transportation: The to-be-constructed internal roadway will be a Type w street and include 28-foot pavement width, vertical curb and gutter, four-foot planter strips, five-foot-wide sidewalks, three-foot utility strip, streetlights, and street trees. An 8- foot-wide paved pedestrian pathway will be constructed from the internal road in the northeast area of the plat that will follow the outside edge of the proposed storm (P A0721500.DOC; 1113041.150017/) Preliminary Plat Recommendation Findings, Conclusions and Recommendation drainage area and connect to Military Road. The half-street frontage improvements will allow safer pedestrian travel along 28th A venue South as there are no sidewalks along this area at this time, just a nWTOW paved area outside of a white line marked along the roadway, which is used by students traveling along the road. The City's Traffic Engineer reviewed the submitted plans and concluded that the proposed street layout of the project is consistent with the adopted codes and Comprehensive Plan. As proposed and as required by the FWCC, all internal and external roadways shall be improved to all applicable FWCC street standards, and rights-of-ways must be dedicated by Statutory Warranty Deed to the City of Federal Way. In addition, a concurrency permit is required for the development, to determine whether there is adequate roadway capacity to accommodate the development and also identifies traffic mitigation. The analysis determined 9 Transportation Improvement Plan projects that will be impacted by the increased automobile traffic coming to and from the proposed development (See project chart on page 9 of Staff Report). This impact results in $39,790 of pro-rata mitigation necessary to maintain adopted level of service standards. . Pedestrian Svstem: As proposed and required, the plat complies with the FWCC subdivision code requirements for on- and off-site pedestrian circulation, providing pedestrian pathways along 28th Avenue South as well as on the internal road as well. . Open Space: The applicant is proposing to install a pedestrian pathway and three landscaping buffer areas, for a total of 8,223 square feet of open space, leaving 36,013.5 square feet remaining in order to meet the statutory requirements. The applicant proposes to pay a "fee in lieu of" for the remainder of the required open space, for a total of $50,155.12. The proposal was circulated to and approved by the Director of the City Parks Department, and the fee will be required to be paid upon final plat stage, based on the current assessed. value of the land at that time. . Drainage: Development of the site will create additional runoff from new impervious surfaces such as streets, driveways, and rooftops. Storm drainage facilities are being designed in accordance with the requirements of Level 1 Flow control and Basic Water Quality treatment of the 1998 KCSWDM, as modified by the City. Stormwater lUnoff currently discharges towards the northeast comer of the site and enters a roadside ditch along the western edge of Military Road South, which then flows to the south, is conveyed through a series of pipes under Military Road and Interstate 5, and eventually drains into Lake Dollof, which lies at the upper reaches of the Mill Creek drainage basin. Mill Creek eventually flows into the Green River, which flows into the Puget Sound. Preliminary design of the drainage system indicates that stormwater runoff from the site will continue to dischm-ge at the current, natural location. Additionally, a narrow strip of 28th Avenue South drains into Steel Lake. Street improvements to 28th A venue South will increase the amount of impervious area that drains into Steel Lake. The increase in impervious area does not warrant additional flow control or water quality treatment facilities, but the developer's engineer has agreed to install a small water quality treatment facility in the lowest downstream catch basin, if determined to be necessary. The approved storm drainage facilities must be constlUcted per City code requirements, plior to {PA0721500.DOC;11l3041.150017/1 Preliminary Plat Recommendation Findings, Conclusions and Recommendation final plat approval and recording of the subdivision. Final review and approval of the storm drainage facilities as shown on the engineering plan will occur in conjunction with full drainage review. . Water: The applicant proposes to serve the subdivision with a public water supply and distribution system managed by the Lakehaven Utility District. The May 18, 2007, Certificate of Water Availability indicates Lakehaven's capacity to serve the proposed development through a Developer Extension Agreement (DEA). However, the applicant will need to reapply for the availability letter since the determination is only valid for one year from the date of issuance. . Sewage: The applicant proposes to serve the proposed plat by a public sewer system managed by Lakehaven Utility District. A May 2007 Certificate of Sewer Availability indicates the district's capacity to serve the proposed development through a . Developer Extension Agreement (DEA) between the applicant and the district. The applicant will be extending the sewer to the far edge of the subject site and may provide opportunities for other properties to hook up to the sewer on a latecomer basis. However, the applicant will need to reapply for the availability letter since the detelmination is only valid for one year from the date of issuance. . Schools: A May 8, 2007 (Ex. N) school access analysis submitted by the applicant indicates that the site is located in the service areas of Wildwood Elementary, Sacajawea Middle School, and Federal Way High School. Also, comments from this report indicate that the development will generate approximately 20-21 additional school aged children. School service areas are reviewed annually and may be adjusted to accommodate enrollment growth and new development. Middle and elementary school students would be required to walk to bus stops along 28th Avenue South, located at 310111 Street and 311111 Street. High school students would be required to walk to school from this development. Bus stops are subject to change, as student needs increase and roads are developed. School impact fees will be collected at the time of building permit issuance. Currently those fees amount to $3,883.00 plus a $194.00 City administrative fee per single-family housing unit. School impact fees are determined on the basis of the District's Capital Facilities Plan and are subject to annual adjustment and update. . Fire Protection: South King Fire and Rescue requires that a fire hydrant be located on the east end of the plat, that the hydrants must be spaced 600 feet or less apart, and that every building lot shall have a fire hydrant within 300 feet. All hydrants shall be in service prior to and duling constt.uction. The Celtificate of Water Availability from Lakehaven Utility District indicates that water will be available to the site in sufficient quantity to satisfy fire flow standards for the proposed development. The exact number and location of fire hydrants wi 11 be reviewed and approved by South King Fire and Rescue. CONCLUSIONS OF LAW Procedural: {PA0721500.DOC; 1/13041.1500] 7/} Preliminary Plat Recommendation Findings, Conclusions and Recommendation 1. Authority of Hearing: Examiner: FWCC 20-110 (4) and (5) provide the Examiner with the authority to conduct a hearing and make a recommendation to the City Council on preliminary plat applications. Substantive: 2. Zoning Designation: Single-Family - High Density, RS7.2. 3. Review CIiteria and Application. FWCC 20-126(c) governs the criteria for preliminary plat approval. Those criteria are quoted in italics below and applied to the application under corresponding Conclusions of Law. FWCC 20-126(c): Decisional Criteria. A Hearing Examiner shall use the following criteria in reviewing the preliminary plat and may recommend approval of the plat to the City Council if: ( 1) It is consistent with the comprehensive plan; 4. The applicant proposes a residential development in an area designated by the Federal Way Comprehensive Plan and Zoning Code for residential development, within the densities specified by the Zoning Code. Overall, the project is consistent with the Comprehensive Plan. One potential area of inconsistency concems the mass clearing and grading proposed for the site. Due to the nonmandatory language of the applicable policy and constitutional constraints in interpreting that language, the Examiner does not find an inconsistency. The comprehensive plan policy at issue is Policy NEP55, which provides as follows: "As slope increases; development intensity, site coverage, and vegetation removal should decrease, and thereby minimize drainage problems, soil erosion, siltation, and landslides. Slopes of 40 percent or more should be retained in a natural state, free of structures and other land surface modifications. " There is no clearing and grading discernable from the record of slopes of 40% or more. The issue for purposes of this application is whether development intensity. site coverage and vegetation removal has "decreased" as slopes have "increased." Page 8 of the staff report notes that "the grading plan shows significant cutting and filling in areas exceeding 15% slope." In order to abide constitutional and statutory requirements and to avoid successful legal challenge. the City should interpret its regulation in a manner that is consistent with constitutional and statutory requirements. It is fairly clear from the record that the only way the applicant can avoid the disturbance of the 15% slopes is by reducing the number of lots in those areas. Consequently, a strict application of NEP55 results in a set-aside of property. In this respect, the NEP55 and related regulations are similar to the King County open-space set-aside requirements assessed in Citizens' Alliance for Property Rights v. King County, 145 Wn. App. 649 (2008). In that case the appellate comt struck down a King County development regulation requiring portions of property to be retained in its natural state as violating RCW 82.02.020. The Comt found that RCW 82.02.020 required King County to show that its set-aside requirements were necessary to mitigate problems created by a development proposal (legally termed "nexus") {PA0721S00.DOC; 1/13041.150017f} Preliminary Plat Recommendation Findings, Conclusions and Recommendation and that the amount of property set-aside was in proportion to the magnitude of the adverse impacts created by the development (legally termed "proportionality"). The Court construed RCW 82.02.020 as placing the burden of proof on nexus and proportionality upon the government. The Court struck down King County's open-space set-aside requirements because King County failed to meet its burden. Given the King County case, the City should interpret Policy NEP55 in a manner that restricts development when to do so is necessary to avoid adverse impacts of clearing and grading steep slopes. A second constitutional issue that must be used as an interpreted tool is the "void for vagueness" doctrine, where courts will invalidate a development requirement on due process grounds when it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Anderson v. Issaquah, 70 Wn. App. 64 (1993). Consequently, in order to avoid invalidation, vague standards such as "minimize" must only be interpreted as. restricting development when it is absolutely clear that the standard has been violated. To do otherwise would simply lead to invalidation anyway. As noted in the Findings of Fact, there was no evidence presented at the hearing to show that the mass grading and clearing would create any adverse impacts. Staff even testified that the mass clearing and grading would not create any drainage problems. Federal Way also has some fairly detailed critical area regulations that would prevent any clearing/grading or development activity that would result in any geological hazards. NEP55, as is the case with most comprehensive plan policies, is also vague. It requires that clearing/grading activities "decrease" as slope increases. There is no indication of what level of development is appropriate for the steep slopes on the property. NEP55 is also not a mandatory provision; it only requires that development activity "should" decrease as slopes increase. The City's critical area regulations guide and restrict development on steep slopes. Given the absence of any evidence showing adverse impacts and the vagueness of NEP55, the Examiner concludes that the City's critical area ordinance adequately implements NEP55 for this project and no further limitation on development is required. FWCC 20-126(c)(2): It is consistent with all applicable provisions of the Chapter, including those adopted by reference from the comprehensive plan: 5. As detailed in the staff repOlt, the proposed preliminary plat is consistent with all applicable subdivision regulations and those adopted by reference from the comprehensive plan. The one point where the Examiner disagrees in the staff analysis is staff's finding that the project mass grading and clearing fails to comply with FWCC 20-179. Due to the statutory and constitutional constraints on interpretation detailed in Conclusion of Law No.5, the Examiner finds that the project is marginally consistent with FWCC 20-179, with some modification. FWCC 20-179 provides as follows: (a) All natural vegetation shall be retained on the site to be subdivided except that which will be removed for improvements or grading as shown on approved engineering plans. For zero lot line townhouse development, clearing and grading shall be allowed to accommodate the construction of the building(s). If development is to be phased, clearing and grading shall also be phased. A {P A0721500.DOC;1f13041.150017/1 Preliminary Plat Recommendationb Findings, Conclusions and Recommendation preliminary clearing and grading plan shall be submitted as patt of preliminary plat application. (b) Existing mature vegetations shall be retained to the maximum extent possible. Preservation of significant trees pursuant to FWCC 22-1568 shall apply solely to the development of each single-family lot at the time a building permit is applied for. (c) Lots created on slopes of 15 percent or greater shall minimize grading and shall not result in extensive use of retaining walls. Slopes are to be measured in their natural state. The applicant testified that the clearing and grading was necessary to provide a gradient for stormwater discharge and to allow for level lots. To the extent that the clearing and grading is necessary for stormwater discharge, the Examiner finds that the clearing/grading is necessary for improvements as contemplated in FWCC 20-179(a). To the extent that the cleating and grading is only necessary to provide for level driveways or yards, the Examiner does not find the clearing/grading consistent with FWCC 20-179(a). The project will be conditioned to allow clearing and grading only to the extent necessary for stormwater discharge and buildable lots, within the context of the proposed lot and improvement configuration. FWCC 20-179(b) is probably the most difficult standard from the developer's perspective, since it is fairly specific in requiting vegetation to be retained "to the maximum extent possible." Taken literally, this would mean no development should be allowed except for the constitutional takings minimum of one or two homes. Since vegetation covers most all developable sites in Federal Way, a literal application of FWCC 20-179(b) would severely restrict development and would prevent Federal Way from reaching its growth targets mandated by the Washington State Growth Management Act, Chapter 36.70A RCW. Going beyond the constitutional minimum, the City is again left with a vague standard because it is difficult to come to an objective conclusion on what design preserves vegetation "to the maximum extent possible." The proposed condition in the preceding paragraph allows the applicant to have the number of buildable lots he proposes while maintaining the vegetation on each of those lots to the extent consistent with stormwater control. As conditioned, the project satisfies FWCC 20-179(b). FWCC 20-179(c) is also satisfied by the condition of approval applied in the preceding paragraph. FWCC 20-179(c) does not limit the number of lots on slopes of 15% or more. It just requires the minimization of grading on those lots. That is precisely what the recommended condition of approval does. FWCC 20-126(c)(3): It is consistent with public health, safety, and welfare. 6. The proposed preliminary plat would permit development of the site consistent with the current Single-Family High Density land use classification of the Federal Way Comprehensive Plan and map. Proposed access and fire hydrant locations must meet all requirements of South King Fire and Rescue, and all future structures are required to be sprinklered. As conditioned, future development of the plat in accordance with applicable codes and regulations will ensure protection of the public health, safety, and welfare. (P A0721500.DOC; 1I13041.150017l) Preliminary Plat Recommendation Findings, Conclusions and Recommendation FWCC 20-126(c)(4): It is consistent with the design criteria listed in FWCC 20-2: 7. The proposed preliminary plat would promote the purposes identified in FWCC Section 20-2 and the standards and regulations therein, as identified in the staff report, including promotion of safe and convenient travel on streets, provision for the housing needs of the community, and preservation of a portion of the site as common open space. As proposed, the plat application complies will all provisions of the chapter. FWCC 20-2: This chapter is adopted in furtherance of the comprehensive plan of the City. It is hereby declared that the regulations contained in this chapter are necessary to: ( 1) Promote the health, safety and general welfare in accordance with the standards established by the state and the city; 8. As noted in the Washington State Growth Management Act, the Washington State Legislature has found it to be in the public interest to prevent urban sprawl and to promote the efficient use of infrastructure. The development, at the proposed densities, meets these objectives. Also, as previously discussed, the project provides adequate infrastructure to meet the needs or the new development. For these reasons, the project promotes the health, safety, and general welfare in accordance with the standards established by the state and the city. FWCC 20-2(2): Promote effective use of land by preventing the overcrowding or scattered development which would injury health, safety or the general welfare due to lack of water supplies, sanitary sewer, drainage, transportation or other public services, or excessive expenditure of public funds for such services: 9. As previously noted, the project constitutes development in an area that is already characterized and developed by residential development. In addition, the project will effectively use the land, combining high-density housing with high levels of open space and on-site infrastructure. Also as previously discussed, the project is served (or as conditioned will be served) by adequate infrastructure. For these reasons, the above criterion is satisfied. FWCC 20-2(4): Provide for adequate light and air. 10. The density of the project meets the density requirements for the RS7.2 zoning district. The applicant will have to comply with the dimensional requirements of the zoning code for any structures it builds in order to get through building permit review. The dimensional standards of the City's Zoning Code set the standard for adequacy of light and air and for these reasons the above criterion is satisfied. FWCC 20-2(5): Provide for water, sewage, drainage, parks and recreational areas, sites for schools and school grounds and other public requirements: 11. As noted in the Findings of Fact, the project is served by adequate infrastructure in order to properly serve new residents as well as to prevent degradation of current services to existing residents of the area. FWCC 20-2(6): Provide for proper ingress and egress: {PA0721500.DOC; 1/13041.1500171} Preliminary Plat Recommendation Findings, Conclusions and Recommendation 12. According to Staff, access to all lots will comply with City design standards. The improvements to 28th Avenue South and the creation of the internal roadway loop will aid in available safe access to the subject property. FWCC 20-2(7): Providefor housing and commercial needs of the community: 13. At the proposed densities, project satisfies the above criteria. FWCC 20-2(8): Require uniform monumenting of land divisions and conveyance of accurate legal descriptions: 14. FWCC 20-1 11 (b) requires that the survey of the proposed subdivision must be made by or under the supervision of a registered land surveyor who shall cettify that it is a true and correct representation of the land surveyed. This and other requirements like it help ensure that the objective of uniform monumenting of land divisions and accurate legal descriptions are satisfied. FWCC 20-2(9): Protect environmentally sensitive areas: 15. As noted previously, the project has gone through a review under the State Environmental Policy Act, which ensures that all environmentally sensitive areas are protected and mitigated. No appeal has been filed in regards to the SEPA determination, and although concerns regarding the significant trees and steep slopes have been raised, they do not qualify as environmentally sensitive areas. In addition, further review of the engineering site plan would take place prior to construction or final approval of the plat. FWCC 20-2(10): Provide for flexibility and site design to accommodate view enhancement, protection, protection of streams and wetlands, protection of steep slopes and other environmental significant or sensitive areas. 16. Any development of the site will have to comply with the City's critical areas ordinance, which ensures adequate protection of environmental resources. As conditioned, the project also minimizes disturbance of vegetation and slopes that are not protected by the critical areas ordinance. The criterion is satisfied. FWCC 20-125(c)(5): It is consistent with the development standards listed in FWCC 20-151 through 20-157, and 20-178 through 20-187. 17. As noted in the staff repOlt, the subdivision complies with all standards identified above. The staff report does not find compliance with applicable clearing and grading requirements (most notably FWCC 20-179), but as conditioned the Examiner does find compliance. RECOMMENDATION The Examiner recommends approval of the preliminary plat application, subject to the conditions of approval recommended by staff and the following: 1. Cleating and grading at the subdivision stage of development is limited to the extent {PA0721500.DOC~ 1/13041.15oo17/} Preliminary Plat Recommendation Findings, Conclusions and Recommendation necessary to ensure: (a) gravity discharge to the detention facilities proposed by the applicant; (b) that all proposed lots are buildable; and (c) that the lots and improvements can be located and configured as proposed. Buildable lots are defined as lots that can accommodate a home with at least a 2,500 square foot footplint and still comply with all applicable regulations, including critical area regulations. Dated this 3rd day of March, 2009. {BFP699241.DOC; 1113041.1500 1 OI} Preliminary Plat Recommendation <:~~~ Phil Olbrechts Hearing Examiner City of Federal Way ....--'- Findings, Conclusions and Recommendation