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The Woodlands Hearing Examiner DecisionPreliminary Plat and Buffer Averaging - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY Phil Olbrechts, Hearing Examiner RE: Woodlands at Redondo Creek Preliminary Plat 19-105072-00-SU, 19-105073-00-SE and 19-105074-00-UP FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION INTRODUCTION The Applicant requests approval of 67-lot preliminary plat and buffer averaging of a Category II wetland for a 21.85 project site located northwest of the intersection of South 304th Street and 20th Avenue South. The applications are approved subject to conditions. To dispel any confusion, the hearing held on October 7, 2020 was automatically shut down by the Zoom application and was not intentionally cut-off by the examiner or any City staff. Fortunately, this occurred after the close of hearing testimony so no one was deprived of an opportunity to speak. The proposal adequately addresses all of the issues raised in the numerous comments submitted by persons living in the area surrounding the project site. Many of the potential impacts raised by project opponents have already been addressed by detailed regulations adopted by the City Council, such as traffic congestion standards, wetland and stream buffers and drainage standards. This is no coincidence, since the impacts identified by project opponents are fairly typical of project impacts that have been raised in the Federal Way community as well as all other Washington State communities for decades. Through corresponding decades of evolving development standards, the Federal Way City Council has adopted comprehensive development standards that in essence set standards of acceptability for just about every development impact typically associated with new development. The City’s subdivision standards provide some flexibility for mitigating impacts that haven’t been anticipated in these standards, but those circumstances are rare and none were identified in this round of development review. A concern raised by numerous persons such as Margaret Reyhner, Laurie Ault-Sayan, Richard Kelly and Don Chandler was traffic impacts on 304th St. In its concurrency analysis, as outlined in the findings of this decision the City staff determined that the proposal will not violate the City’s transportation level of service standards. These level of service standards are levels of congestion found acceptable by the City Council. The City Council’s authority to set level of service standards is limited by Growth Management Act requirements that the City be able to fund the level of service standards it adopts. The federal and state constitutions prohibit cities from requiring developers to pay more than their proportionate share of traffic impacts. The City is left with the responsibility of funding the remaining Preliminary Plat and Buffer Averaging - 2 gap between what developers pay and what’s necessary to meet level of service standards in the City’s capital facility plans. That is why adopted level of service standards are often less ideal than what local residents find tolerable. Margaret Reyhner, David Anderson and others also objected to the Applicant’s wetland buffer averaging proposal. As outlined in the staff report and the findings of this decision, the Applicant has demonstrated compliance with the City’s wetland buffer averaging regulations and for that reason is legally obligated to approve it. The City’s wetland buffer averaging standards overall appear to result in buffers that better protect wetlands than the standard buffer width requirements. The buffer averaging standards require that the amount of buffer added to a wetland be at least as much as that removed. Further, the buffer area added must be more sensitive and/or more functional than that removed. The proposed buffer averaging meets both of these standards as well as all other averaging standards and for that reason must be approved. Margaret Reyhner, John Pearson, Anne Etter and others have also expressed concerns over impacts to the water quality of Steel Lake. As outlined in the findings of this decision, staff have found the preliminary stormwater design to comply with the City’s stormwater regulations and final design will be reviewed and approved during the engineering review of the preliminary plat. As outlined in Finding of Fact No. 6, the Applicant’s stormwater system must comply with the design and operational standards of the 2016 King County Surface Water Design Manual and city amendments, the Comprehensive Surface Water Management Plan, and the Stormwater System Operation and Maintenance Manual. These regulations require that the proposal not create any off-site stormwater volumes and velocities that exceed pre-development, forested project site conditions. The standards also require extensive design controls to ensure that stormwater water quality is adequately treated before exiting the project site. No evidence has been presented by anyone that these rigorously designed water quality and stormwater control standards are insufficient to protect the water quality of Steel Lake. Margaret Reyhner, John Pearson, Anne Etter and others have concerns over the density proposed for the development. The density is authorized by Federal Way regulations and cannot be denied absent a compelling reason to do so. Project opponents have not identified any reason why the density is not appropriate for this location. Traffic and other impacts identified by project opponents are all fully mitigated and/or meet applicable level of service and zoning code performance standards. The Growth Management Act required the City Council to adopt urban densities for development within the City so that urban sprawl and its associated adverse impacts to environmental resources and inefficient use of infrastructure in more rural areas can be avoided. The density proposed by the Applicant is consistent with this objective and the zoning densities adopted by the City Council. Richard Kelly, Laurie Ault-Sayan and Trinity and Don Chandler noted that water pressure is too low in the area already and were concerned that the proposal would further decrease water pressure. The development engineering supervisor of the Lakehaven Sewer and Water District, which services the area, stated that the proposed development will have no impact on surrounding water pressure. In the absence of any expert testimony to the contrary, Lakehaven’s engineering testimony on this issue is taken as a verity. Mark Sabol and Richard Kelly felt that 20th Street was too narrow to serve as an access road. They and others expressed concern over line of sight as well and at least one person was concerned about turning movements of 304th. The City’s public works department has investigated line of sight from all access Preliminary Plat and Buffer Averaging - 3 points and found it to be safe. The department has also found that the access points provide safe access to the site. A turn lane onto 304th will reduce traffic issues related to turning movements on that road caused by the project. The public works department’s conclusions on roadway safety are based upon expert opinions from at least one traffic engineer. No expert testimony was provided to the contrary so the City’s conclusion on traffic safety are taken as the most compelling evidence in the record and no further mitigation is required. Finally, some project opponents noted that public opinion on the proposal is unanimously opposed. That by itself is not a valid basis for decision making on the plat. In point of fact, basing a land use permitting decision on community sentiment as opposed to compliance with permit review standards is judicially considered to be an improper purpose and the basis for major liability suits. See Westmark Development Corporation v. Burien, 166 P.2d 813 (2007)(10.7-million-dollar judgment for basing permitting decisions on political pressure); Maytown Sand and Gravel LLC v. Thurston County, 198 Wn. App. 560 (2017)(12-million-dollar judgment for basing permitting decision on political pressure). In short, project opposition can serve as a gauge for the severity or universality of a project impact. Those impacts can often be addressed by adopted permitting standards. However, the opposition by itself does not serve as a legally defensible basis for making a permit decision. If a project is denied or mitigated solely because of community opposition, the permitting decision will ultimately be reversed on judicial appeal and the community will be forced to pay for the damages incurred by the Applicant caused by the delay. This decision is based upon the permitting standards adopted by the City Council and is not based upon the number of people opposed to the project. If those permitting standards are well designed, and all indications suggest they are, the City Council would come up with the same decision if confronted with the same application. ORAL TESTIMONY This summary of hearing testimony is only provided as a general overview of public testimony and should not be construed as a part of the adopted findings and conclusions. The summary is provided purely as a convenience to the reader for an understanding of what information was shared during the public hearing. No assurances are made as to accuracy. Nothing in the summary should be construed as suggesting any priority or significance of testimony. Copies of the hearing recordings are available from the City Clerk’s Office should a more accurate accounting be desired. City Testimony Becky Chapin, Federal Way Senior Planner, summarized the staff report. Staff received 11 written comments, two of which were from public agencies SEPA Determination. No changes to the environmental determination were made in response. No appeals were filed. The Applicant has requested a wall height modification which City staff supports. Ms. Chapin read several corrections to the Staff Report. On Page 10, the type of street on South 304th Street was changed to a modified Type K cross section with half street improvements consisting of 22’ of pavement, curb, 8’ sidewalk, 3’ utility strip, streetlights and a handrail. The right of way medication letter was admitted as Ex. 5. On Page 17, recommendation #1, the Letter of Intent (Ex. 3) has been provided by Lakehaven. Also, on Page 17, recommendation #4 has been clarified to require the planting plan at the time of engineering Preliminary Plat and Buffer Averaging - 4 approval. Finally, on Page 17, recommendation #7 a value conclusion amount was p rovided by CBRE (Ex. 23) as part of the appraisal. This value will be used instead of the latest assessed value. Ms. Chapin also noted various references in the staff report to a 40-foot ROW dedication on the Lakehaven Water and Sewer District property. This figure is actually 45 feet. Ms. Chapin noted the Applicant has already met recommended approval criteria number 1. In response to the examiner, Ms. Chapin noted the retaining wall will be 14 feet tall next to the wetlands. This exceeds City standards and is subject to modification request. The request has been administratively approved by staff, though Ms. Chapin was unsure if the modification decision needed to be consolidated with the other decisions by the examiner. In response to the examiner’s question regarding school access and public comments, Ms. Chapin replied all students will be bussed and the bus stop location will be on site to the project rather than on the existing public right of way. Staff Testimony Savannah Nagorski, the Applicant’s engineer stated she did not have anything to add other than the school bus stop will be within the plat. The School District wanted to make sure the roads are accessible by the busses, but there is no specific plan right now. With respect to the retaining wall adjacent to the wetland, Ms. Nagorski stated this might be delegated to engineering review. They provided a letter stating how they met the modification criteria. Public Testimony John Pearson stated he’s been a resident of Steele Lake for fifty years. He is opposed to the project because of the excessive density. The density needs to be lessened. He is concerned about impacts to the wetlands and to the lake ecosystem. The outlet is very important, which extends into this area of proposed development. He’s concerned there will be an adverse effect to the channel maintenance and the outlet to the lake. He is concerned about wildlife, both common and threatened species. He is concerned wildlife will be adversely affected. He’s also concerned about traffic impacts. South 304th Street is already heavy in the afternoons. He’s concerned the development will only harm the existing traffic issue. He believes it’s unsafe for school children walking on 304th. He thinks the sidewalks will be an improvement but does not feel walking to school safety has been adequately addressed. He is opposed to the project for these reasons. Mr. Pearson asked if he could introduce local wildlife photos. The examiner stated he would leave the record open for another day. Anne Etter stated she agrees with Mr. Pearson’s comments. She is concerned with the development as it is currently proposed. In the past, the Federal Way City Council has been committed to the health of Steele Lake and were against development in this area. Similar developments a couple of decades ago were denied. She does not see this development as being responsible for this section of the waterway. She has three main concerns – timing, which is controversial and opposed; traffic, which is a major concern and the health of the lake ecosystem. Also, she is a client of Van Ness Feldman in another matter. With respect to timing, these times are unprecedented. Neighborhoods are not communicating. The timing of the hearing itself is challenging. Her concern is that there are budgetary constraints on the City that is driving this development. She feels people beyond the 300-foot notification radius should be Preliminary Plat and Buffer Averaging - 5 given an opportunity to comment. She requested a six-month delay for further public comment. She’s heard mostly opposition to the project. Traffic is a serious concerns. There is poor line of sight at 20th and 304th. The addition of at least 60 cars will cause traffic issues, even with widening. The line of site and roadway geometry are already dangerous. She doesn’t think the traffic study adequately addressed this issue. With respect to the ecosystem issues, there are several areas in the plans where the regulatory minimums are being set aside for intrusions. This is not the plat of land to make exceptions for things that protect the lake. The landscaping plan is loosely along the streets which will in no way replace the tall trees and vegetation that exist. She is concerned the lake’s ecology will be harmed by the project as the climate changes. This area is not the place for this type and intensity of development. Overdevelopment is having a detrimental effect on the local quality of life. The neighborhood has strongly opposed development here for decades. Ms. Etter also stated 20th Avenue S needs to be walked by the examiner. The street is very small and steep. Even with widening, the topography makes the street very challenging. The plat layout will mean the homes will use 20th to get to SR 99 and Military Road. She thinks this will create dangerous conditions. Ingress and egress is problematic. Also, if the sidewalks are from 20th towards SR 99 and if bussing is the plan, that won’t be realistic. There is a lot of foot traffic on 304th because there are multiple bus stops there. The sidewalks need to go through 304th. Margaret Reyhner stated she wasn’t aware of the hearing except from a neighbor. She is outside of the notification radius. She mentioned her letter to the examiner (Ex. 3). She’s lived on the lake for 47 years and has been activity involved in the lake management district. She is concerned about the effects of the development on the entire area. She is very concerned about traffic. S. 304th is a bypass street that is effectively a speedway. One neighbor put up her own speed limit signs. She is concerned about the runoff from the additional traffic into the lake. There are drains that go into the lake, but they lack expensive oil separators. She is concerned about the timing of the traffic study. The pandemic lockdowns reduced the level of traffic and may have made it seem like there is much less traffic than there actually is. She is concerned about the road widening by the lake. The wetlands buffer averaging disturbs her. The average brings part of the wetland buffer from 150 feet to 112 feet. The wetlands is delineated as a Category III but was only a couple points shy of a Category II, which would have a much higher buffer. Also, if a wall is supposed to be six feet tall, what will a 14-foot tall wall do right next to the stream outlet to the lake where it runs under the road? The wetlands study showed the homeless camps have adversely affected the wetlands and buffers. The homeless camps should be removed. The property owner here hasn’t done a good job of stewarding the land. She is concerned how the wetlands will be repaired. She is not confident the wetlands planting will be the correct plants. She is also concerned about the School District’s bussing radius of one mile. Her son went to Sacajawea and he had to walk to school along 304th. If the District hasn’t committed to picking up those kids and bussing them, she doesn’t think you can rely on them to do so. There are too many homes being proposed. This should be half the number of homes. This property will never be restored. Redondo Creek is impo rtant to the environment. The City calls it a minor stream, but no one is really taking care of it. With the environment today, the concern about ecology and restoration of the environment, this project should be required to better protect the stream. She asked a question about a homeowners association. She wanted to know who enforces the wetlands buffers adjacent to private property. Richard Kelly stated he has lived on 20th Avenue for six years. The changes concern him. He is supportive of the development of the area because he supports removing the homeless encampments. He Preliminary Plat and Buffer Averaging - 6 is concerned about traffic. 20th is very narrow and requires people to take turns when attempting to access 304th. The traffic light at 304th and Pacific Highway is inconsistent, and traffic backs up. Adding a lot of homes will further exacerbate this problem. How will we address chronic issues and emergent issues like utility quality when the water pressure is low? Don Chandler stated he is concerned about traffic. He disagrees with the conclusions of the traffic study. He was unsure of the methodology. He wondered where the sidewalk improvement would be and if it went far enough along 304th. He is also concerned about water pressure with the additional housing units. The water pressure in this area is already low. He is not too keen on the amount of proposed development. Mark Sabol echoed comments regarding traffic. The hill is a safety issue. The project is too big for the site and location. With regard to traffic, he wanted to know if ingress/egress could be on 288th which is designed for heavy traffic. He is also on the lake committee and is very concerned about the lake’s quality. He opposes the project, especially the size and scope. Staff Rebuttal Sarady Long, City of Federal Way Public Works, stated the project underwent a concurrency analysis consistent with Federal Way Municipal Code Chapter 19. In particular, the intersection of 304th and SR 99 was reviewed. Comprehensive Policy 1.3 requires standards for signalized intersections to 2021. The project will meet the volume capacity ratios in the Comprehensive Plan and the M unicipal Code. He described the intelligent transportation system in place at this traffic light. The traffic study was conducted in 2018, prior to the current virus slowdown. With respect to line of sight, the traffic analysis determined there was adequate sight distance for that access point. The entire site plan meets City standards. The proposed street widening will improve line of sight greatly by reducing overhanding vegetation. In response to the examiner, Mr. Long stated it was his opinion that the line of sight issue will be safe. Also, in response to the examiner, the sidewalk will be improved to the westerly property line but not beyond. There are no issues with using 20th Avenue S as alternative access. The City looked at sight distance for all areas of the project. The widening of the road will meet all City standards and provide for safe access. Mr. Long stated the traffic counts was in 2019. The LOS is met for all interactions in the present and future conditions with a LOS B. The internal road for 20th Avenue S is a Type U which can accommodate 250-500 cars per day. Ann Dower, City of Federal Way Public Works, stated the stormwater system will meet all current standards. There will be dispersion trenches to add treated water to the wetlands ar eas. They did not include oil water separation because this is not a typical requirement for single family homes. The system does include typical stormwater treatment. The City has a stormwater department that has inspectors that inspect each facility annually. The detention facility will be maintained by the City after the first two years but will provide inspections before that. The City’s water quality standards will require basic water quality which will pick up debris and dirt and minor pollutants. She is not sure of which studies have been done. They base their standards on King County. Preliminary Plat and Buffer Averaging - 7 Cole Elliott stated the surface water group conducts regular studies and testing of the lake. They have been concentrating on lakes that have less robust water quality than Steele Lake. Ms. Chapin stated the code requires the developer to form a homeowners association creating the responsibilities and obligations of each lot. If the HOA is not maintaining its duties, the City will perform code enforcement. Applicant Rebuttal Ms. Nagorski stated that the project meets all underlying zoning standards for the lots including density, square footage, setbacks and design guidelines. As to the overall density for the entire project site, there are fewer homes than would be provided if there were no critical areas. Flow with relation to Steele Lake leaves the site and flows north, not the opposite. The impacts to the lake are minimal if any. Both the Applicant’s biologists and the City’s third-party reviewers agree the proposal follows the City code. She stated they Applicant needed until Monday at the end of day to respond to any public comments. Clark Kunitsugu stated the retaining wall height will reduce grading in the wetlands buffer. The lake flows onto the site, not the other way around. There won’t be any project effect on the lake. Ms. Chapin stated the retaining wall decision will be made by the examiner. EXHIBITS The October 7, 2020 staff report along with attachments 1-32 were admitted as Exhibit 1 during the October 7, 2020 public hearing. In addition, the following exhibits were also admitted during the hearing: Exhibit 2: Staff PowerPoint Exhibit 3 10/5/20 letter from Margaret Reyhner Exhibit 4 9/30/30 letter from Lakehaven Water and Sewer District Exhibit 5 1/24/20 Street Modification Approval Exhibit 6 10/7/20 email from David Anderson Exhibit 7 10/7/20 email from Don Chandler Exhibit 8 10/7/20 email from Anne Etter Exhibit 9 10/7/20 email from John Pearson Exhibit 10 10/7/20 email from Margaret Reyhner Exhibit 11 10/7/20 email from Mark Sabol Exhibit 12 10/12/20 Nagorski response to public comments Exhibit 13 10/12/20 Sewall response to public comments FINDINGS OF FACT Procedural: Preliminary Plat and Buffer Averaging - 8 1. Applicant . John Everett/Savanna Nagorski ESM Consulting Engineers, LLC 33400 8th Avenue South, Suite 205 Federal Way, WA 98003. 2. Hearing. The Hearing Examiner conducted a virtual hearing on the application at 9:00 am on October 7, 2020, Zoom Meeting ID: 935 1798 3995. The record was left open through October 8, 2020 for written public comment and October 12, 2020 for Applicant response. Substantive: 3. Site/Proposal Description. The Applicant requests approval of 67-lot preliminary plat and buffer averaging of a Category II wetland for a 21.85 project site located northwest of the intersection of South 304th Street and 20th Avenue South. The site is accessed from 20th Avenue South and is currently vacant. The site topography is characterized by a moderate westward facing slope spanning the property that descends to a natural stream area. The slope grade reaches approximately 15 percent , or slightly greater, near the wetland buffer where the stream is located. The subject site contains a Category II wetland, Type Ns stream, and Geologically Hazardous Area (GHA). Buffer averaging is being proposed for the wetland buffer in accordance with FWRC 19.145.440(5). The buffer averaging proposal involves a total encroachment of 18,974 square feet, which would reduce the buffer in that area to a minimum of 112.5 feet, which is 75 percent of the standard 150-foot buffer. The amount of buffer area to be added as compensation is 19,188 square feet to the northern side further downstream. 4. Characteristics of the Area. Single-family dwellings zoned RS 5.0 and 7.2 adjoin the property to the south and east. A day care center, water tower and single-family home are located to the north and an office building is located to the west. 5. Adverse Impacts. No significant adverse impacts are associated with the proposal. A determination of non-significance under the Washington State Environmental Policy Act was issued on July 3, 2020 and that determination has not been appealed. Pertinent impacts are addressed as follows: A. Critical Areas. The project site contains four critical areas – a stream, a wetland, a shoreline and a geologically hazardous area. Staff have found that all critical areas have been protected as required by the City’s critical area regulations and that determination is supported by the administrative record. For that reason, those critical areas are found to be adequately protected. All critical areas are addressed in more detail below: 1. Stream. The on-site stream has been rated as a non-fish bearing, minor stream Type Ns due to seasonal flow and requires a 35-foot buffer. The project avoids intrusion into the stream buffer. 2. Wetlands. The on-site wetland has been rated as a Category II wetland with six habitat points requiring a 150-foot buffer. Buffer averaging is proposed due to slope and grading activities in conjunction with roadway infrastructure construction and lot development. Wetland reports and subsequent letters prepared by Sewall Wetland Consulting, Inc., provide relevant information about the wetland and associated wetland buffer; wetland function and value; development impacts; proposed mitigation; construction management; monitoring; maintenance; and contingency for the impacted area. Sewall’s analysis was Preliminary Plat and Buffer Averaging - 9 subject to peer review by the City’s wetland consultant, ESA. Sewall has revised it’s analysis and recommendations per the peer review to the satisfaction of City staff. Under the Applicant’s proposed buffer averaging, the encroachment area is a low functioning and sensitive area of the buffer and the replacement area is a higher functioning and more sensitive area. The area proposed to be reduced has been impacted by homeless encampment use. The area proposed to be added is mature forest with some encampment impacts but generally less than that in the reduction area. In addition, enhancement of the buffer addition area is proposed where needed as a result of a homeless encampment to include removal of trash and debris and replanting with native vegetation is proposed. The proposed buffer averaged area will be wholly contained within the subject property. 3. Geologically Hazardous Area. The central portion of the site contains slopes that are inclined at 15 percent or greater and are underlain by Alderwood series (AgD) soils. These conditions meet the criteria for erosion hazard as defined by the FWRC. There are no buffers associated with erosion hazard areas per FWRC 19.145.240 and protection mechanisms are related to temporary and permanent erosion control measures. The Applicant has submitted a geotechnical report, Ex. 26, that addresses this critical area. The report concludes that with its recommended erosion control measures, the proposed project will not decrease slope stability on adjacent properties. The report also concludes that its recommended erosion control measures in conjunction with conformity to the City’s stormwater standards will ensure that the adjacent wetland/stream corridor is adequately protected from erosion or related instability. 4. Shoreline. The on-site wetland is considered a protected shoreline under the City’s shoreline regulations. The wetland has this status because it is considered an “associated wetland” of Steel Lake due to its hydrologic connection via a seasonal stream that flows under South 304th Street to the lake. Pursuant to FWRC 15.05.020, Steel Lake is considered a shoreline of the state, with a designation as Shoreline Residential. The shoreline jurisdiction ends at the edge of the associated wetland. No development and/or impacts to the shoreline are proposed. 5. Steel Lake. Some neighbors were concerned about stormwater impacts to the water quality of Steel Lake. As noted by City staff and the Applicant, the City’s stormwater standards contain extensive and rigorous standards for treatment of stormwater quality. Those regulations also require that post-development off-site volumes and velocities not exceed pre-development volumes and velocities. No evidence was presented that these standards would be insufficient to protect Steel Lake water quality. B. Compatibility. The Exhibit 2 aerial photograph shows the proposal as similar in density and character to the surrounding predominantly residential uses. C. Noise. One of the neighbors expressed concern that the removal of trees at the project site would expose neighbors to more airport and other noise. Noise from the airport and other sources is not an impact created by the Applicant and the Applicant cannot be legally Preliminary Plat and Buffer Averaging - 10 required to mitigate noise impacts generated from other uses. See RCW 82.02.020; Burton v. Clark County, 91 Wn. App. 505 (1998). Further, as noted in the Applicant’s first response to public comments, Ex. 13l, the Applicant’s tree removal and retention is in conformance with the City’s tree retention standards. There is no valid basis to require any additional tree retention. D. Endangered Species. In Ex. 9, John Pearson includes pictures of species that appear to be protected under the City’s critical areas ordinance, such as pileated woodpecker and great blue heron. In rebuttal, Ex. 13l, the Applicant notes that the subject property was evaluated by two professional ecologists – the project’s consultant and the City’s consultant. No endangered species or their habitats were observed by these professionals onsite. The pictures provided by Mr. Pearson are perhaps the most compelling evidence of concern presented by the neighbors, but they are backed by a dearth of evidence as to where and when they were taken. For this reason, the Applicant’s expert evaluation, subject to peer review, is found to be more persuasive and it has to be concluded that no protected species are located at the project site. E. Homeless Encampments. Some neighbors express frustration over the presence of homeless encampments at the project site. There is no basis to conclude that the proposal will make that situation worse and one would expect that the reduction of vacant space at the project site would make the undeveloped areas a less attractive area for the homeless. In any event, there is no basis to conclude that the proposal will increase any homelessness impacts and, therefore, no basis to require mitigation of that impact. 6. Adequacy of Infrastructure and Public Services. As mitigated by the conditions of approval, adequate and appropriate infrastructure will serve development as follows: • Drainage: Storm drainage facilities are being designed in accordance with the 2016 King County Surface Water Design Manual and city amendments, the Comprehensive Surface Water Management Plan, and the Stormwater System Operation and Maintenance Manual. The Applicant's Technical Information Report (TIR) (Exhibit 22) was reviewed by the city's Public Works Department and found to be consistent with these standards for the purposes of preliminary plat review. Ultimately, conformance to the City’s stormwater standards assures no adverse drainage impacts to surrounding properties, since the standards require that off-site drainage be limited to the volumes and velocities of pre-developed, forested conditions. A combined detention and water quality pond is proposed to control runoff from new pervious and impervious surfaces. Level spreaders will distribute the pond discharge to the onsite wetland and stream. All new pervious surfaces will be amended to satisfy soil moisture holding capacity requirements, and perforated pipe connections will be provided for each roof downspout connection prior to entering the public conveyance system. Additional Best Management Practices will be evaluated during engineering review. Final approval of the storm drainage facilities as shown on the grading and utility plan and detailed in the TIR, will occur following Public Works Department engineering review. Preliminary Plat and Buffer Averaging - 11 • Transportation: The proposal will be served by adequate, appropriate and safe transportation infrastructure. Two vehicular access points to the site will be provided via the extension of 20th Avenue South from South 304th Street and internal Road A to 20th Avenue South. Off-site improvements will be required on the adjacent Lakehaven Water & Sewer District property to create the second access point, which is required because the subdivision exceeds 25 lots. South 304th Street will be improved as well along the property frontage. As required by FWRC 19.135, all rights-of-way must be dedicated to the city and constructed per adopted street standards. As shown on the preliminary grading and utilities plan, internal streets are designed in accordance with Federal Way Comprehensive Plan roadway cross sections “U” and “W.” Roads A and C will be constructed as a Type “U” cross section with 32 feet of pavement, 4-foot planter strip, 5- foot sidewalk, and 3-foot utility strip, all within a 56-foot right-of-way. Road B will be constructed as a Type “W” cross section with 28 feet of pavement, 4-foot planter strip, 5- foot sidewalk, and 3-foot utility strip, all within a 52-foot right-of-way. Within the off-site extension of Road A, the Type “U” cross section will be modified to 24 feet of pavement, 4-foot planter strip, 5-foot sidewalk, and 3-foot utility strip, all within a 40-foot right-of-way. Along the property’s east frontage, 20th Avenue South will be constructed as a Type “U” cross section, with half-street improvements consisting of 16 feet of pavement, 4-foot planter strip, 5-foot sidewalk, and 3-foot utility strip, all within a 56-foot right-of-way. Along the property’s south frontage, South 304th Street will be constructed as a Type “K” cross section with half-street improvements consisting of 22 feet of pavement, 4-foot planter strip, 5-foot sidewalk, and 3-foot utility strip, all within a 56-foot right-of-way. The Applicant will dedicate 30 feet of frontage along 20th Avenue South and 9 feet of frontage along South 304th Street. Lakehaven Water & Sewer District has agreed to dedicate a 40-foot right-of-way across its northerly property line to accommodate the second access to 20th Avenue South. Prior to engineering review approval, the Applicant will be required to submit a signed agreement from Lakehaven that a 40-foot strip along the north property line of parcel 042104 9168 will be dedicated to the City of Federal Way for right-of-way purposes. At the time of final plat approval, a statutory warranty deed for the 40-foot strip must be signed to be recorded along with the final plat. To comply with the city’s traffic concurrency regulations, the City Traffic Engineer conducted a concurrency test to determine if the new trips generated by the subdivision would result in failures to the city’s level of service. The test concluded that no failures were anticipated and a Certificate of Reserve Capacity was issued on March 16, 2020 (Exhibit 28). Off-site traffic impacts are addressed by the City’s traffic impact fee requirement, which will be assessed and collected by the Applicant when the building permit is issued for each lot, using the fee schedule then in effect, this is made a conditional of preliminary plat approval. At the Applicant’s discretion, the impact fee payment may be deferred to Preliminary Plat and Buffer Averaging - 12 final building inspection for each individual house per standards set forth in FWRC 19.100.075. Some neighboring property owners expressed concern over line of sight, the width and grade of the 20th street access and turning movements on 304th. The City’s public works department has investigated line of sight from all access points and found it to be safe. The department has also found that the access points provide safe access to the site. A turn lane will be added to 304th to facilitate access onto 20th. The public works department’s conclusions on roadway safety are based upon expert opinions from at least one traffic engineer. No expert testimony was provided to the contrary so the City’s conclusion on traffic safety are taken as the most compelling evidence in the record and no further mitigation is required. • Open Space: As required by applicable regulations, the project provides adequate and appropriate open space. The proposed plat provides a variety of conservation, constrained, and buffer open spaces on site. FWRC Chapter 18.55, “Design Criteria,” requires dedication of land on site for open space, or a fee in lieu payment. Per FWRC 18.55.060, a minimum of 15 percent of the gross land area shall be provided as open space, with a minimum 10 percent gross area as usable open space. Therefore, the total open space required for this plat is 142,753 square feet (15 percent of the 21.85-acre parcel). The Applicant proposes a total of 306,625 square feet of open space with 27,072 qualifying as useable open space. The proposed 27,072 usable open space does not meet the minimum required amount of 95,168 square feet, or 10 percent useable. The Applicant has requested that the remaining 68,096 square feet of usable open space, or 7.16 percent, be provided as a fee-in-lieu of open space. The Parks Director has approved the fee-in- lieu of onsite open space that will be assessed and due at final plat approval. • Sewer: The Applicant proposes to serve the proposed plat by a public sewer system managed by the Lakehaven Water & Sewer District. A May 8, 2019, Certificate of Sewer Availability (Exhibit 30) indicates the district’s capacity to serve the proposed development through a Developer Extension Agreement (DEA) between the Applicant and the district. • Water: The Applicant proposes to serve the subdivision with a public water supply and distribution system managed by the Lakehaven Water & Sewer District. The May 8, 2019, Water Availability Letter (Exhibit 31) establishes that Lakehaven has capacity to serve the proposed development through a Developer Extension Agreement (DEA). Several neighbors were concerned that the proposal would lower their water pressure, which they stated is already too low. The development engineering supervisor of the Lakehaven Sewer and Water District stated that the proposed development will have no impact on surrounding water pressure. See Ex. 13l. In the absence of any expert testimony to the contrary, Lakehaven’s engineering testimony on this issue is taken as a verity. Preliminary Plat and Buffer Averaging - 13 • Schools. Wildwood Elementary, Sacajawea Middle School, and Federal Way High School will serve the proposed subdivision. The Applicant provided a school access analysis with the preliminary plat application (Exhibit 29). A copy of the analysis was forwarded to Federal Way Public Schools by the city. All elementary and middle school students from this development will receive bus transportation to and from school, as these schools are over one mile from the subject site. According to the testimony of the Applicant’s engineer, the bus stops will be located within the plat. Since all plat streets will have sidewalks, the elementary and middle school students will have safe walking conditions to and from school. Students attending Federal Way High School are within walking distance as noted in Ex. 29. Students walking to the high school will have sidewalk and paved shoulder for the entire distance Sidewalks will be required along all internal roads and project frontage on 20th and 304th. The remaining road from project frontage on 304th to SR 99 will have a paved shoulder. The remaining distance from 304th and SR 99 to the high school has sidewalks. School service areas are reviewed annually and may be adjusted to accommodate enrollment growth and new development. Federal Way Public Schools has indicated school impact fees, as authorized by city ordinance, provide mitigation for the students of this development and could add to district facilities. Some neighbors stated that the schools serving the site do not have adequate funds for needed infrastructure. The City Council has determined that the impact fees authorized for school service are sufficient and that is the controlling standard used to judge adequacy of school facilities. • Police and Fire Protection – South King Fire and Rescue and the Federal Way Police Department currently provide services to the site. The Fire Department reviewed the project for compliance with requirements for emergency access, hydrant locations, and fire flow. South King Fire & Rescue requires two fire hydrants be provided for this project in approved locations. Hydrant spacing along access roads and locations will be approved by the Fire Marshal’s Office. CONCLUSIONS OF LAW Procedural: 1. Authority of Hearing Examiner: The requested preliminary plat and buffer averaging requests have been consolidated into one review process where the examiner is authorized to hold a hearing on the applications and issue a final decision. Chapter 18.35.010 FWRC authorizes the Examiner to conduct a hearing and make a final decision on preliminary plat applications. FWRC 19.145.440 (5) classifies wetland buffer reduction requests as Process III applications, which provides the Community Development Director with the authority to make a final decision subject to appeal to the examiner. FWRC 19.15.060 authorizes consolidation of multiple applications into the highest review process. The highest review process is the preliminary plat process and the two applications have been consolidated into that review process. Substantive: Preliminary Plat and Buffer Averaging - 14 2. Zoning Designation: Multi-Family Residential (RM1800), Single Family Residential (RS5.0) & (RS7.2). 3. Review Criteria and Application. FWRC 18.35.170(3) governs the review criteria for preliminary plat applications and FWRC 19.145.440(5) for buffer averaging. Since wetland buffer averaging requests are usually addressed administratively and there is no error in the findings or conclusions adopted by staff in in the staff report, the findings and conclusions of Section IVD of the staff report are adopted by reference. All applicable permit review criteria for preliminary plat review are quoted in bold italics below and applied to the application under corresponding Conclusions of Law. Substantive: FWCC 18.35.170(3): 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: (a) It is consistent with the comprehensive plan; 4. The criterion is met. The application is subject to the adopted 2015 Federal Way Comprehensive Plan (FWCP), which designates the property as Multi-Family and Single Family, High Density. The proposed single-family land use and density is consistent with the underlying comprehensive plan designations. FWCC 18.35.170(3)(b): It is consistent with all applicable provisions of the title, including those adopted by reference from the comprehensive plan: 5. The criterion is met. The city’s Community Development Review Committee (CDRC) has reviewed the preliminary proposal and found its preliminary design to be in compliance with the applicable requirements of Title 18 if the conditions adopted by this recommendation are implemented. More detailed review will occur for final plat and building permit approval. Development of the site in accordance with these requirements and the recommended conditions of approval will ensure compliance with all applicable codes, policies, and regulations. One exception to this conclusion is retaining wall height. As testified by staff, some of the retaining walls will exce ed the six-foot maximum height authorized by FWRC 19.120.120. A condition of approval requires that the retaining wall conform to the required maximum height or that the Applicant acquire approval of a height modification pursuant to FWRC 19.120.050. FWCC (18.35.170(3)(c): It is consistent with public health, safety, and welfare. 6. The criterion is met. The proposal provides for in-fill development as encouraged by the Growth Management Act while also creating no significant adverse impacts and being fully served by adequate and appropriate infrastructure as determined in Findings of Fact 5 and 6. Under these circumstances the proposal is consistent with the public health, safety and welfare. FWCC 18.35.170(3) (d): It is consistent with the criteria listed in FWRC 18.05.020; and Preliminary Plat and Buffer Averaging - 15 7. The criterion is met. FWRC 18.05.020, the purpose clause for the City’s subdivision regulations, identifies ten purposes, including establishing appropriate infrastructure, protecting environmentally sensitive areas and promoting public health, safety and welfare. All of these objectives are met for the reasons identified in Findings of Fact No. 5 and 6 and also due to the proposal’s compliance with all applicable development standards as determined by the city’s Community Development Review Committee (CDRC). FWCC 18.35.170(3) (e): It is consistent with the development standards listed in Chapter 18.55 FWRC, and FWRC 18.60.030 through 18.60.120. 8. The criterion is met. The CDRC has reviewed the preliminary proposal and found it to be in compliance with all applicable codes, policies, and regulations if the conditions adopted by this recommendation are implemented. The primary focus of these development standards is adequate and appropriate provision of infrastructure, which as outlined in Finding of Fact No. 6 has been met for the proposal. These regulations also focus upon compliance with zoning code standards that address lot size, density and open space. Compliance with these zoning code standards is addressed in detail in Section VI of the staff report. DECISION The preliminary plat and wetland buffer averaging request as detailed in Finding of Fact No. 3 and depicted in Ex. 3 are approved subject to the following conditions 1. Prior to the city’s approval of engineering plans, the Applicant shall provide a signed agreement from Lakehaven stating that a 40-foot strip along the north property line of parcel 042104 9168 will be dedicated to the City of Federal Way for right-of-way purposes. 2. Prior to final plat approval, a statutory warranty deed for the 40-foot strip along the north property line of parcel 042104 9168 shall be prepared and signed to be recorded along with the final plat. 3. Prior to the city’s approval of engineering plans, the graded area adjacent to the proposed retaining wall must be stabilized and replanted with native shrubs and trees to help preserve the functionality of the remaining intact wetland buffer. A replanting plan of this area must be included with the plans submitted for engineering review. 4. The final plat drawing shall dedicate all usable and buffer open spaces in individual open space tracts to be owned in common and maintained by property owners of the proposed subdivision, and shall prohibit removal or disturbance of vegetation and landscaping within the tracts, except as necessary for maintenance or replacement of existing plantings and as approved by the city. Additional vegetation may be located in open space tracts to meet conditions as approved by the city. A note shall be included on the final plat map that the open space tracts shall not be further subdivided; may not be developed with any buildings or other structures, except as may be approved by the city for recreational purposes only for the benefit of the homeowners; and may not be used for financial gain. 5. The final plat drawing shall dedicate all conservation and constrained open spaces in individual open space tracts to be owned in common and maintained by property owners of the proposed subdivision, Preliminary Plat and Buffer Averaging - 16 and shall prohibit removal or disturbance of vegetation and landscaping within the tracts, unless otherwise approved by the city because the vegetation is dead, dying, dangerous, or other valid reason. Additional vegetation may be located in open space tracts to meet conditions as approved by the city. A note shall be included on the final plat map that the open space tracts shall not be further subdivided; may not be developed with any buildings or other structures; and may not be used for financial gain. 6. Prior to recording, the Applicant shall provide the city’s Parks Department a fee-in-lieu payment for open space in the amount of 7.16 percent of the most recent assessed land value of the subject property, and provide a voluntary letter authorizing the city to use the open space fee-in-lieu in any of the Parks Planning Areas of the city per FWRC 18.55.060(2). 7. The Applicant is required to pay a transportation impact fee (TIF) for each lot. The fee will be assessed and collected from the Applicant when the building permit is issued, using the fee schedule then in effect. 8. The Applicant is required to pay a school impact fee for each lot. The school impact fee is due at the time of the building permit issuance for the new dwelling units. This fee amount is subject to change as determined annually by the Federal Way School District and the City of Federal Way. 9. The Applicant shall bring all proposed retaining wall heights into conformance with FWRC 19.120.120 or acquire a modification to the required heights as authorized by FWRC 19.120.050. 10. The proposal shall conform to the recommendations of the geotechnical report, Ex. 26. DATED this 29th day of October 2020. Hearing Examiner for Federal Way RIGHT OF APPEAL This decision may be appealed to superior court within 21 days of issuance as governed by the Land Use Petition Act, Chapter 36.70C RCW. CHANGE IN VALUATION Notice is given pursuant to RCW 36.70B.130 that property owners who are affected by this decision may Preliminary Plat and Buffer Averaging - 17 request a change in valuation for property tax purposes notwithstanding any program of revaluation. Preliminary Plat, Rezone, Wetland Buffer Reduction Recommendation p. 1 Findings, Conclusions and Recommendation