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}
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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
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Findings, Conclusions and Recommendation