HEX 20-004 20201229 Corliss-Plant 2 Appeal
Efd3:3131
William T. Lynn
Direct: (253) 620-6416
E-mail: blynn@gth-law.com
December 29, 2020
Stephanie Courtney
City Clerk
City of Federal Way
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33325 8Ave S.
Federal Way, WA 98003
RE:Notice of Development Code and Water Quality Violation 20-104877-VO
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35053 16 Ave. Federal Way, WA 98003
Parcel No. 2021049116
This letter shall serve as the Appeal by Plant 2 LLC of the City of Federal Way Development
Services Department Notice of Development Code and Water Quality Violation dated
December 18, 2020. A copy of the Notice is attached as Exhibit B. This appeal is made
pursuant to Federal Way Revised Code (FWRC) 1.15.060.
A. Appellant and Appellant’s Representative:
Appellant:
Plant 2 LLC
3106-A Sumner Tapps HighwayE.
Lake Tapps, WA 98391
The Appellant’s Attorneys are:
William T. Lynn
Reuben Schutz
Gordon Thomas Honeywell LLP
1201 Pacific Avenue, Suite 2100
Tacoma, Washington 98402.
253-620-6500
blynn@gth-law.com
rschutz@gth-law.com
Reply to:
Tacoma Office Seattle Office
1201 Pacific Ave., Suite 2100 (253) 620-6500 600 University, Suite 2100 (206) 676-7500
Tacoma, WA 98402 (253) 620-6565 (fax)Seattle, WA 98101(206) 676-7575 (fax)
\[4826-9598-9205\]
Law Offices | www.gth-law.com
Gordon Thomas Honeywell LLP
December 29, 2020
Page 2
B. Appellant’s Standing to Appeal.
Appellant has standing in this matter because it is the owner of the property that is the subject
of the alleged violations at issue.
C.DecisionThatistheSubjectoftheAppeal:
City of Federal Way Notice of Development Code and Water Quality Violation 20-104877-VO,
dated December 18, 2020.
D.Appellant’sBasesforAppeal:
See Exhibit A
We submit this appeal with a filing fee in the amount of $1,152.00. If anything further is
necessary to perfect this appeal please notify me immediately.
Sincerely,
William T. Lynn
Enclosures
cc:Client
\[4826-9598-9205\]
EXHIBIT A
BASES FOR APPEAL
This appeal is based upon the following grounds:
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1.Plant 2 LLC (Appellant) owns property located at 35053 16
Avenue South in
Federal Way. The Appellant operates a concrete batch plant on the property. The batch plant
is a permitted use within the Commercial Enterprise (CE) zone.
2.On January 6, 2020, the City of Federal Way’s Water Quality Coordinator sent
the Appellant a Notice of Water Quality Violation (WQ Notice). The basis for the WQ Notice was
that “track out” from the Appellant’s property had caused storm water discharges of turbid
water in violation of Federal Way Revised Code (FWRC) Ch. 16.50.
3. The WQ Notice set a compliance deadline of January 27, 2020. In addition to
cleaning sediment from a number of catch basins and cleaning tracked-out material from the
right-of-way, the WQ Notice required short- and long-term best management practices (BMPs)
to prevent further discharges of silt, sediment, or gravel offsite. The City recommended BMPs
and several contemplate paving.
4.In response to the WQ Notice, the Appellant cleaned the tracked-out material
in the right-of-way and contracted with Pro-Vac to clean the impacted storm water system. In
addition, the Appellant paved the property’s primary entry/exit driveway as a long-term
solution to prevent track out. The City was aware of this action and supported it as a long-term
solution.
5.At no time did City staff ever state that City review or a permit would be required
to take this corrective action or that the action could or would trigger the requirement for
additional storm water improvements on the property.
6. In a March 3, 2020 letter entitled “Close out of Notice of Water Quality Violation
Warning” the City explicitly stated that:
Thank you for taking corrective action to address the water quality violations….
Pursuant to a follow-up site inspection on March 2, 2020, \[Storm Water
Management\] staff confirmed that the paved driveway was completed and that
appropriate measures have been implemented to clean up past discharges and
prevent future prohibited discharges to the on-site stormwater conveyance
system.…
Reply to:
Tacoma Office Seattle Office
1201 Pacific Ave., Suite 2100 (253) 620-6500 520 Pike St, Suite 2350 (206) 676-7500
Tacoma, WA 98402 (253) 620-6565 (fax)Seattle, WA 98101 (206) 676-7575 (fax)
\[4826-9598-9205\]
Law Offices | www.gth-law.com
Gordon Thomas Honeywell LLP
December 29, 2020
Page 4
Thank you for your cooperation and the immediate attention that was directed
to this issue.
7.The March 3, 2020 “close out” letter from the Citywas a final action that
resolved all issues between the City and the Appellant as to the WQ Notice.
8.In June 2020, the Appellant applied for a permit to install a temporary mobile
concrete plant on the property. In practical terms, this amounted to simply an equipment
change, as it did not add any production capacity. The only paving the Appellant proposed for
this equipment change is a single 1,500 square foot pad.
9.Under the City’s code, the addition of a 1,500 square foot pad does not exceed
any thresholds that would require storm water improvements on the site. Nevertheless, the
City initially conditioned the permit for the temporary mobile plant on the Appellant building
additional storm water improvements that would cost in excess of $1 million based on the
proposed 1,500 square foot pad.
10. The City later shifted the basis for its claim that the Appellant would be required
to construct over $1 million in storm water improvements. In a November 16, 2020 letter, the
City acknowledged that the minor paving work associated with the equipment change did not
trigger the requirement to upgrade the property’s storm water system but asserted that the
previous paving of the property’s primary entry/exist driveway in January 2020 did trigger that
requirement.
11. On December 18, 2020, the City issued a Notice of Development Code and
Water Quality Violation (December 18 Notice), again claiming that the January 2020 paving
to mitigate the track out issue triggered the requirement to upgrade the property’s entire
storm water system.
12. The earlier paving was performed by the Appellant solely to address the City’s
complaint regarding tracked-out material. The work was supported by the City and was
explicitly accepted by the City with a sign-off at the end of the process. The City closed out that
matter and thanked the Appellant for its prompt and responsive corrective efforts. The Storm
Water Management Staff, including the City’s Water Quality Coordinator, never stated or
indicated that the work done to mitigate tracked-out material required a permit or triggered
the requirement for additional stormwater improvements on the property.
13. The City’s December 18 Notice is wholly inconsistent with the City’s prior
actions. The Appellant relied on the City’s prior actions, as it would not have paved the
driveway in January 2020 (or would have removed the paving) had it known the City would
require over $1 million in stormwater improvements as a result. Instead, the Appellant would
\[4826-9598-9205\]
Law Offices | www.gth-law.com
Gordon Thomas Honeywell LLP
December 29, 2020
Page 5
have used other BMPs to comply with the WQ Notice. The City is estopped from claiming the
storm water upgrade requirement now.
14. The close out of the WQ Notice was a final determination as to that enforcement
action. That completed action is no longer subject to challenge or modification. The December
18 Notice violates the substantive and procedural requirements of the Land Use Petition Act
(LUPA). Alternatively, the City’s notice is time-barred because of the City’s failure to otherwise
challenge the January 2020 paving.
15. The City was aware of the earlier paving work to address the City’s complaint
regarding track out. The City’s unreasonable delay in claiming that the paving work performed
in January 2020 triggered a requirement to install additional storm water improvements has
resulted in damages to the Appellant and is barred by the doctrine of laches.
16. The December 18 Notice is contrary to the Federal Way Revised Code and other
provisions of state law and federal law.
17. The December 18 Notice is not supported by the applicable facts.
18. If enforced, the December 18 Notice will require the Appellant to tear out the
January 2020 paving, resulting in additional damages. If the violation is upheld, the Appellant
should be permitted time to meet alternative conditions to satisfy the City’s water quality
requirements. Under no circumstances should any substantial upgrades to the storm drainage
system be required
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Submitted this 29 day of December, 2020
_________________________________ _December 29, 2020_________________
William T. LynnDate
Reuben Schutz
\[4826-9598-9205\]
Law Offices | www.gth-law.com
Gordon Thomas Honeywell LLP
December 29, 2020
Page 6
EXHIBIT B
\[4826-9598-9205\]
Law Offices | www.gth-law.com
December 18, 2020
Plant 2 LLC
35053 16th Avenue S.
Federal Way, WA 98003
Re: Notice of Development Code and Water Quality Violation 20-104877-VO
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35053 16 Ave. S., Federal Way, WA 98003
Parcel Number: 2021049116
Dear Property Owner:
This letter serves as a formal warning that the above-referenced parcel is in violation of the Federal Way
Revised Code (FWRC) Title 16, Surface Water Management; Title 19, Zoning and Development Code and
Public Works Development Standards 1.4.4 and 1.4.5.
During a commercial plan review site inspection at your site (2021049116) on November 4, 2020, City of
Federal Way Development Services staff identified the following Development Code and Water Quality
violations:
1. Failure to comply with regulated activities code (FWRC 16.15.010)
2. Failure to comply with the King County Stormwater Design Manual (FWRC 16.20.010).
3. Failure to meet non-conforming stormwater code (FWRC 19.30.120).
4. Failure to comply with City of Federal Way Public Works Department Development Standards
(Section 1.4.4) by installing approximately 15,000 square feet of impervious surfacing without a land
use permit.
5. Failure to comply with City of Federal Way Public Works Department Development Standards
(Section 1.4.5) by installing approximately 15,000 square feet of impervious surfacing without an
Engineering permit.
In accordance with City policy before any proposed permits (20-102592-CO) can be issued this site must be
brought into compliance through the Land Use and Engineering permit process. If such corrective action is
not taken, the City may pursue further civil and criminal enforcement actions to bring this parcel into
compliance with the FWRC.
I. Violations
The following violations have been found to exist on the parcel identified above:
1. Violation (FWRC 16.15.010 Regulated activities).
(2) Projects that add 2,000 square feet or more of new impervious surface, replaced impervious surface,
or new plus replaced impervious surface; or
(3) Projects that propose 7,000 square feet or more of land disturbing activity;
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2. Violation (FWRC 16.20.010 Manuals and addendum adopted)
The 2016 King County, Washington Surface Water Design Manual (KCSWDM), the 2016 Federal Way
Addendum to the King County, Washington Surface Water Design Manual, the King County Stormwater
Pollution Prevention Manual, and the latest edition of the LID Technical Guidance Manual for Puget
Sound, as they exist on the effective date of the ordinance codified in this chapter or as hereafter
amended, are hereby adopted by this reference. They are referred to in this title respectively as the
KCSWDM, Federal Way Addendum, the KCSPPM and LID Manual.
3. Violation (FWRC 19.30.120 Nonconforming water quality improvements)
(1) Redevelopment. For the purposes of this section, or means a project that
proposes to add, replace, or modify impervious surface (for purposes other than a residential subdivision or
maintenance) on a site that is already substantially developed in a manner consistent with its current zoning,
or with a legal nonconforming use, or has an existing impervious surface coverage of 35 percent or more.
Water quality for the entire subject property must be brought into compliance with FWRC Title 16, where the
proposed redevelopment meets or exceeds the thresholds set forth below pursuant to this chapter, and shall
be done in accordance with the approved King County Surface Water Design Manual or equivalent, as
amended.
(a) Redevelopment which involves the creation or addition of impervious surfaces having an area of
5,000 square feet or more;
(b) Redevelopment which involves the construction or replacement of a building footprint or other
structure having a surface area of 5,000 square feet or more, or which involves the expansion of a
building footprint or other structure by 5,000 square feet of surface area or more;
(c) Redevelopment which involves the repair or replacement of 5,000 square feet or more of an
impervious surface, when such redevelopment is not part of a routine maintenance activity;
(d) Redevelopment which involves the collection and/or concentration of surface and/or stormwater
runoff from a drainage area of 5,000 square feet or more;
4. Violation (Development Standards Section 1.4.4 Land Use Permits)
The City of Federal Way Zoning Code requires that a Land Use Approval shall be issued for all
excavating and grading permits; building permits for new construction, alteration, repair, or house
moves; and for use of vacant lands or land use changes within any zoning district.
5. Violation (Development Standards Section 1.4.5 Excavation and Grading Permits)
An Engineering (EN) Approval is required for clearing, excavation and filling in the ROW, grading, and
temporary erosion control construction. The Public Works Department shall administer the approval.
An Engineering Permit will not be issued prior to plan approval of engineering or building plans related
to the entire project. Excavation and filling activities on future lots requires a separate review and
permit from the building department.
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II. Corrective Actions
1. Apply for a Land Use permit indicating the full impact of the impervious surfacing
previously installed without permit along with proposed corrective action in accordance with the
KCSWDM.
2. Prepare site plans, stormwater plans and support documentation to mitigate the impervious
surfacing previously installed without permit.
You are ordered to complete one of the three actions listed below:
1. Correct the violations of the FWRC by January 14, 2021, or
2. Enter a voluntary correction agreement with the City before the date correction is required above and
comply with the terms of that agreement, or
3. Appeal this Notice and Order as described in Section V.
III. Voluntary Correction Agreement
If you wish to avoid penalties, but desire additional time for compliance, you may enter into a voluntary
correction agreement with the City. Please submit your request for a Voluntary Correction Agreement in
writing to the City of Federal Way Public Works Department, at the address on this letterhead, prior to the
ordered date of compliance.
IV. Right to Appeal
In accordance with FWRC 1.15.060, you have the right to appeal this Notice and Order. All appeals must be
filed in person before 5:00 p.m., or received
second floor of the Federal Way City Hall, 33325 8th Avenue South, Federal Way, WA 98003.
V. Penalties and Abatement
If you do not complete any of the two actions described in Section II above, or a hearing examiner so orders
(or you do not comply with a hearing examin
abatement.
A monetary penalty for each violation shall accrue against you for each day, or portion of a day, on which
the violation continues following the date set for correction. The maximum penalty and the default amount
shall be $100.00 for the first violation, $200.00 for a second violation of the same nature or a continuing
violation, $300.00 for a third violation of the same nature or a continuing violation, and $500.00 for each
additional violation of the same nature or a continuing violation in excess of three not including fees, costs,
and assessments.
The City may perform the abatement required to bring the property into compliance. The city shall bill its
costs, including incidental expenses, of abating the violation to the person obligated to perform the work
costs shall become due and payable 30 days after the date of the bill. Unpaid abatement costs may result in a
lien against the property.
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The City of Federal Way Development Services division will provide, upon submission of plans, support
documentation and application of appropriate permits, additional technical review and comment, to persons
required to comply with FWRC. Please contact our Senior Engineering Plans Reviewer via email at
kevin.peterson@cityoffederalway.com or by phone at 253 835-2734 (office); 253 293-6577 (cell) if you have
any questions or concerns.
Sincerely,
Cole Elliott, PE
Development Services Manager
CE:ss
cc:EJ Walsh, Public Works Director
Theresa Thurlow, Surface Water Manager
Kevin Peterson, Development Services
Jay Fennell, Ecology (jfen461@ecy.wa.gov)
Jerry Shervey, Ecology (jerry.shervey@ecy.wa.gov)
Day File
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