HEX 20-004 Staff ReportC:\Users\CElliott\Desktop\Staff Report Plant 2 LLC.doc 1
ATTACHMENT 3
STAFF REPORT TO THE FEDERAL WAY
HEARINGS EXAMINER
APPEAL OF NOTICE AND ORDER
File Number: 20-104877-VO
Issue: Appeal of Notice of Development Code and Water Quality
Violation – Order to Correct Violation.
(“Notice and Order”)
Location of Violation: 35053 16th Avenue, Federal Way, WA
(“Property”) Tax Parcel No. 2021049116
Property Owner: Plant 2 LLC
3106-A Sumner Tapps Highway E.
Lake Tapps, WA 98391.
Notification: Electronic service on 12/18/2020 to:
Gordon Thomas Honeywell LLP
Attn: William T. Lynn
Process Required: Federal Way Revised Code (“FWRC”) Section 1.15.060 “Appeal
to Hearing Examiner”.
Code Violations: Federal Way Revised Code (“FWRC”) Section 16.15.010
“Regulated Activities”; Section 16.20.010 “Manuals and
addendum adopted”; Section 19.30.120 “Nonconforming water
quality improvements”; Public Works Department Development
Standards Section 1.4.4 “Land Use Permits”; Section 1.4.5
“Excavation and Grading Permits”.
Date, Time, and January 25, 2021, 11:30 a.m.: February 8, 2021, 9:00 a.m.
Place of Hearing: Zoom Meeting Virtual Hearing
connect to the meeting via telephone at (253)215-8782 or
(877) 853-5247 using webinar code: 948 1617 1340 and passcode:
331832
Staff Representative: Cole Elliott, P.E.
Development Services Manager
Public Works Development Services Department
33325 8th Ave South, Federal Way, WA 98003
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Exhibits:
Attachment 1a. Notice of Development Code and Water Quality Violation
Attachment 7a. Preliminary Utility Plan Sheet 2 of 3
Attachment 7b. Preliminary Technical Information Report
Attachment 7c. Directors Approval letter for UP1
Attachment 7d. October 7, 2020 Public Works comment letter
Attachment 7e. November 2, 2020 Apex response letter
Attachment 7f. November 16, 2020 Public Works comment letter
Attachment 7g. November 18, 2020 Apex response letter
Attachment 7h. December 14, 2020 Third Public Works comment letter
Attachment 1c. December 29, 2020 Notice of Appeal to Notice of Development Code and
Water Quality Violation
Attachment 2. Timeline summary
Attachment 1b. December 22, 2020 Acknowledgement of electronic service
Attachment 1d. Corliss Plant 2 Notice of Appeal
Attachment 1f. Posted Notice of Appeal
Attachment 1e. Signed Declaration of Posting
I. BACKGROUND
On June 9, 2020 the City received a Land Use permit application for a second batch plant at
35053 16th Avenue, Federal Way. Records indicate the Owner as Plant 2 LLC whose mailing
address is 3106-A Sumner Tapps Highway E., Lake Tapps, WA 98391. On July 17, 2020 Land
Use decision was issued with a Public Works condition, see Attachment “7c” Director’s
Approval letter.
On July 1, 2020 a Building Permit application was received for the subject site. Subsequently
review comments and response letters were exchanged between the City’s Senior Engineering
Plans Reviewer Kevin Peterson and the applicant’s civil engineer designer Apex (Attachments
7d, 7e, 7f, 7g, 7h).
On November 4, 2020 while traveling through the City to City Hall, Kevin Peterson noticed a
large area in the northern and western area of the site had been paved. A review of Amanda (the
City’s permit system indicated no permits had been obtained for the work). A review of Google
Earth indicated that the work had been done after May 2019.
After consultation with the City’s Legal Department, on December 18, 2020, the Development
Services Department issue the Notice of Development Code and Water Quality Violation
(Attachment 1a, 1b) electronically to the Owner’s attorney, Gordon Thomas Honeywell.
II. AUTHORITY
FWRC 1.15.020 provides “Civil enforcement of the provisions of this Code or the terms
and conditions of any permit or approval issued pursuant to this Code shall be governed by this
chapter unless other more specific provisions apply. This chapter may be used to address or
enforce the code against any violation. Each day or portion of a day during which a violation
occurs or exists is a separate violation. Aiding or abetting a violation of another is also a
violation. Notwithstanding any provision to the contrary, any civil enforcement of the provisions
of this Code or the terms and conditions of any permit or approval issued pursuant to this Code is
in addition to, and does not preclude or limit, any other forms of enforcement available to the
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City including, but not limited to, criminal proceedings or sanctions, nuisance and injunction
actions, or other civil or equitable actions to abate, discontinue, correct, or discourage unlawful
acts in violation of this chapter. Code enforcement officers are authorized to enforce the Code
using the provisions and procedures of this chapter.”
FWRC 1.15.110 provides “(1) Enforcement officers and officials are authorized to issue civil
infractions to enforce the provisions of the Federal Way Revised Code except those provisions
that are either specifically designated as crimes, specifically indicated as not being infractions, or
designated as traffic infractions.”
FWRC 1.15.030 states “Issuance. Whenever the enforcement officer determines a violation
exists, he or she may issue an order to cease activity directing any person causing, allowing, or
participating in the offending conduct to cease such activity or conduct immediately.”
FWRC 1.15.060, outlines the process for hearing appeals of enforcement actions.
III. VIOLATIONS
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;
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, “redevelop” or “redevelopment” 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;
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(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 (FWRC 19.15.030 and 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 (FWRC 19.120.020 and 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.
FWRC 19.
IV. BURDEN OF PROOF
FWCC Section 1-19(e) (1-3) establishes the required burden of proof for the vacation,
affirmance, or modification of the appeal. It is the responsibility of the appellant to prove by a
preponderance of the evidence that no violation as substantially stated in the Notice and Order
occurred.
V. REQUESTED ACTION
1. Property Owner shall apply for a Land Use permit indicating the full impact of the
impervious surfacing previously installed without a permit with proposed corrective action in
accordance with King County Surface Water Design Manual (KCSWDM).
2. The Owner shall prepare site plans, stormwater plans and support documentation to mitigate
the impervious surfacing previously installed without a permit.
Submitted by:
I certify under penalty of perjury under the laws of the State of Washington that all statements
made herein are true and accurate.
______________________________________ _____________
Cole Elliott, P.E., Development Services Manager Date
02/03/2021