HEX 20-004 Plant 2 LLC - Decision2
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BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
Plant 2 LLC
Administrative Appeal of Notice of
Violation
HEX 20-004
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND FINAL DECISION
SUMMARY
Plant 2 LLC (Appellant) has appealed a Notice of Development Code and water Quality
Violation (NOV) issued by the City of Federal Way (City) on December 18, 2020. The Appeal is
granted in small part. The Appellant is authorized to remove its paving if it is able to implement
alternative corrective actions that remedy the violations identified in the City's January 6, 2020 Notice
of Water Quality Violation Warning (Warning Letter). If the Appellant elects to retain the pavement,
it must comply with the correction actions specified in the NOV.
As background, the NOV alleged that the Appellant had installed paving at its concrete batch
plant site in the City of Federal Way without required permits and approvals. As corrective action, the
NOV required the filing of a land use permit and the preparation of site and stormwater plans to mitigate
the unauthorized paving. The Appellant asserts that stormwater improvement requirements triggered
by the corrective action would cost it two million dollars. The Appellant further asserts that it had
installed the paving to prevent the tracking of batch operation products from its site to the surrounding
road network. It is this tracking that led to the Warning Letter, on the basis that the tracked products
were resulting in water quality violations. One of the corrective actions suggested in the Warning
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Letter was to pave portions of the gravel operation site. The Appellant paved the gravel site without
seeking permitting approval from the City. Once it had paved the site, the City then issued a letter on
March 3, 2020 (Close Out Letter), advising the Appellant that staff had 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."
The Warning Letter and Close Out Letter did not identify that the Appellant would have to
apply for a land use permit or other approvals for the paving. The letters did not identify that the paving
would result in requirements for stormwater upgrades. A partial summary judgment ruling issued by
the Examiner limits the issues that can be considered by the Examiner to (1) whether the letters qualify
as final land use decisions; (2) if the letters do qualify as final land use decisions, whether requiring
stormwater permits and approvals for the paving constitutes an impermissible collateral attack on those
decisions; and (3) if stormwater permits/approvals are required, whether the Appellant can remove the
paving and implement alternative corrective actions authorized by the Warning Letter.
Two appellate court opinions addressing finality of code enforcement decisions have been
found to resolve the first two issues raised by this appeal, specifically Durland v. San Juan Cmy., 298
P.3d 757 (2013) and Chumbley v. Snohomish Cmy., 386 P.3d 306 (2016). Durland dictates that the
Warning Letter is not a final land use decision. The Durland court ruled that the code compliance
agreements under its review did not constitute final land use decisions because they did not require any
specific corrective action. The Warning Letter also does not require any specific corrective action.
Chumbley arguably dictates that the Close Out Letter does qualify as a final land use decision.
Chumbley ruled that a notation in a code enforcement activity log that closed a code enforcement action
constituted a final land use decision. The Close Out Letter similarly closed out the City's enforcement
action.
Whether or not a decision qualifies as a final land use decision is important to the Appellant
because final land use decisions cannot be collaterally attacked in subsequent land use decisions, such
as the NOV under appeal. In this regard, the Close Out Letter is vulnerable to the Appellant's position
because it arguably qualifies as a final land use decision under Chumbley. However, Chumbley also
stands for the principle that final land use decisions are only immune from collateral attack of issues
resolved within the scope of the decision. The Chumbley court found that issuance of a building permit
for a single family home did not immunize the development from separate permitting requirements for
a critical areas permit and a land use disturbance permit for the development of septic drain fields for
the home on separate lots. The Chumbley court also found that a septic permit issued by the health
district did not preclude requiring the critical area/land disturbance permits because the health district
was a separate agency enforcing different regulations under a different regulatory mission.
Parallel scoping considerations attach to both the Warning and Close Out Letters — the letters
applied standards that address illicit water quality discharges. The letters did not mention or apply any
development standards the regulate the permitting and approvals required for installation of pavement.
The letters were authored by City personnel whose responsibilities and expertise were limited to illicit
discharge issues. Those personnel testified they had no experience addressing the permitting/approval
issues. Those issues are handled by a separate City department. Overall, it is also fairly absurd to
conclude that the City would waive permitting requirements for three acres of concrete for no
discernable reason simply by failing to mention it in the letters. For all these reasons, the City's NOV
requirement for paving permits and approvals does not qualify as an impermissible collateral attack on
the Warning and Close Out Letters under principles of finality.
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The Appellant has requested the option of removing the pavement if it is not excused from the
permits and approvals required for installation. The Appellant is entitled to that option. The City has
maintained throughout the appeal proceeding that the Appellant was not limited to any single best
management practice listed in the Warning Letter to correct the water quality violations. Paving was
listed as one of the best management practices the Appellant could choose to implement to correct the
violation. City staff testified that the City intentionally leaves the selection of corrective measures to
the Appellant so that the City is not held responsible should a corrective action not work. Given this
background, paving the project site and the associated permits/approvals that comes with it is not
necessary if alternative effective corrective measures are available. The Appellant should be given the
option to implement less costly measures if they are in fact available.
TESTIMONY
A computer generated transcript has been prepared for the hearing to provide an overview of the
hearing testimony. The transcript is provided for informational purposes only as Appendix A.
EXHIBITS AND CITATION NOMENCLATURE
All the exhibits identified in the February 4, 2021 Witness and Exhibit Lists of both Appellant and City
were admitted into the record during the February 8, 2021 appeal hearing. The Appellant's Prehearing
Brief dated February 8, 2021, along with the City's Post -Hearing Brief dated February 16, 2021 and
the Appellant's Post -Hearing Brief dated February 23, 2021 were also admitted into the record. At the
February 8, 2021 hearing the parties also agreed to admission of all emails between the examiner and
appeal parties regarding the appeal.
References in this Decision to the Appendix A transcript are made by "Tr" followed by page number.
City exhibits are identified as "Ex. C" followed by City exhibit number. Appellant exhibits are
identified as "Ex. A" followed by Appellant exhibit number.
FINDINGS OF FACT
Procedural:
AAppellant. Plant 2 LLC, 3106-A Sumner Tapps Highway E., Lake Tapps, WA 98391.
2. Appeal/Appeal Issues. The Appellant filed its appeal on December 29, 2020. The Appellant
is appealing the NOV. The NOV asserts that the Appellant has installed pavement without required
City permits and approvals. The Appellant asserts that no such permits or approvals are required. The
property at issue is located at 35053 16ffi Ave. S. in Federal Way. The Appellant operates a batch plant
at this location. The Appellant installed paving at this location at least in part to remedy water quality
violations asserted by the City. The appeal forwards numerous arguments as the basis for concluding
that no permits/approvals are required for the paving. These appeals issues were narrowed down as a
result of a partial summary judgment ruling issued by the Examiner in February 2021 and a ruling in
the Examiner's prehearing order issued on January 16, 2021. The remaining appeal issues are identified
in Conclusion of Law No. 4.
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3. Hearings. The hearing on the appeal was held virtually via Zoom on February 8, 2021. The
hearing was left open through February 23, 2021 for post -hearing briefing.
Substantive:
4. Warning Letter Issuance and Contents. The Warning Letter was issued in response to a citizen
complaint made in December 2019 regarding "track out" from the site. Ex. C4a. As testified by Leah
Myhre and Logan Davidson, "track out" refers to the deposit by automotive vehicles of visible material
onto the public right of way. The material can include seal dirt, clay, gravel and sand. Tr. 6. Ex. C4b
is composed of photographs depicting track out from the subject property. The Warning Letter
identifies code provisions violated by the track out, suggested corrective measures that include paving,
and a compliance deadline. Ex. 4c. The Warning Letter does not identify any right to appeal and does
not impose any fines. It provides that if corrective actions are not commenced within 15 days or
completed by January 27, 2021 that the City "may bring a civil enforcement action, criminal sanctions,
and/or monetary penalties to abate, discontinue, correct, and discourage the prohibited discharge(s)
pursuant to Chapter 1.1 S FWRC." Id.
5. Warning Letter Gives Multiple Options for Corrective Action. The Warning Letter provided
multiple options for corrective action. Under Section II of the letter, "Corrective Actions," the letter
requires in the first two punch list items that the Appellant clean out specified catch basins and that it
immediately clean up the track out on right of way. These two punch list items are specific and do not
provide much flexibility for compliance. However, Item 3 broadly directs that the Appellant
"implement both short- and long-term BMPs [best management practices] to prevent future discharge
of silt, sediment, or gravel offsite..." The letter notes that for the Appellant's convenience, examples
of BMPs used by King County are enclosed for reference. As testified by Ms. Myhre, who wrote the
letter, it is City policy to "never give any prescriptive corrective actions, because it could be a liability
for us in case we tell them to clean it up in a certain way and it doesn't get cleaned up correctly." Tr.
57.
6. Warning Letter Doesn't Address Paving Requirements. The Warning Letter doesn't require or
address City approvals and permits for paving as a corrective action. The Warning Letter was signed
by Leah Myhre, the SWM Division water quality coordinator and was prepared along with Kevin Du,
the SWM Division water quality specialist. Ms. Myhre's job is limited to regulating and enforcing
regulatory standards that apply to discharges into the City's waterways. Tr. p. 45, 54 and 62. Ms.
Myhre testified that she has "never touched a permit" in her entire tenure with the City. Tr. 62. Mr.
Du's job is limiting to working on the City's water quality program, more specifically the part of the
program that looks at discharge detection and elimination as well as water quality monitoring. Tr. 93.
7. Close Out Letter. Following a site inspection on March 2, 2020, the SWM Division sent the
Appellant its Close Out Letter on March 3, 2020 acknowledging the corrective actions Corliss had
taken to address the Warning Letter. The letter concluded 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." Ex. C4i. Nothing in the letter
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addressed or waived any permits or approvals required by City code to install the paving. The Close
Out Letter was signed by Ms. Myhre and prepared with Mr. Du.
8. Batch Plant Land Use Permit. In June 2020, the Appellant applied to the City's Community
Development Department for a Process I Master Land Use permit to install a temporary mobile central
mix concrete plant (batch plant)on the Corliss property. Ex. C7c. The paving for the batch plant was
limited to 1,500 square feet. Ex. 7c and 7d. Corliss' land use permit application included a proposal
to pave approximately three acres of the site, an amount of paving the triggered a full drainage review
pursuant to the 2016 King County Surface Water Design Manual (KCSWDM), as adopted by the City.
Id. The three acres apparently included the paving that the Appellant had done as corrective measures
for the Warning Letter. Id. The Community Development Director issued a decision approving the
Land Use permit on July 15, 2020. The Land Use decision noted that an underground detention vault
and a water quality vault had been proposed in order to meet the Drainage Review requirement, and
included a condition that the stormwater facilities for the project would be reviewed during the building
permit application stage. The Land Use decision was not timely appealed. Tr. 104.
9. Batch Plant Building Permit. The Appellant also filed a building permit application for its batch
plant. Ex. 7c. During its review of the building permit application, City staff identified significant
discrepancies in relation to the stormwater plan associated with the previously approved Land Use
permit. Testimony of Elliot and Peterson. The City notified Appellant of this concern by letter on
October 7, 2020. The City's October 7th letter directed Corliss to supplement its building permit
application to incorporate the paving and drainage systems that had been proposed in the Appellant's
previous Land Use permit application, and to submit engineering plans for these improvements. Ex.
7d. The Appellant objected to this requirement, and review of the building permit application has
stalled as a result of the parties' disagreement. Ex. 7d-k, Tr 30.
10. NOV Issuance. The NOV was issued on December 18, 2020. It asserts that the batch plant
paving in conjunction with the prior unauthorized paving triggered stormwater improvements. The
Appellant's engineering consult estimates these improvements will cost 2.4 million dollars, although
Logan Davidson, who works for Appellant, acknowledged the estimate may be a little high and could
be 1.8 million. See Tr. 18.
11. Permitting/Approval Requirements Never Disclosed through issuance of Close Out. According
to Logan Davidson, the Appellant's Environmental and Land Resource Manager, the City never
advised him of the need for any permits or approvals for installation of the pavement prior to issuance
of the Warning Letter. Tr. 17. The City was aware of the Appellant's plans to pave its site as early as
2018, when the Department of Ecology issued the Appellant a Notice of Violation for the same type of
track out problem addressed in the City's Warning Letter. As a response to Ecology's violation notice,
the Appellant sent an email to DOE, with the City as a party, identifying that it would pave its site. Ex.
A1. The City responded by email that it wished to be kept apprised of "any updates you have on the
proposed paving for your main exit area, and will keep you apprised of any issues we note as well."
Ex. A2.
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CONCLUSIONS OF LAW
1. Authority of Examiner. The NOV under appeal is a Notice of Violation and Order to Correct
issued by City staff as authorized by FWRC 1.15.040. As a Notice of Violation and Order to Correct,
FWRC 1.15.060 authorizes the Hearing Examiner to hold a hearing and issue a final decision on
appeals of the NOV. FWRC 1.15.060(4) authorizes the Hearing Examiner to vacate, modify or affirm
the NOV.
2. Review Criteria/Burden of Proof. FWRC 1. 1 5.060(3)(e) provides that in the appeal of a Notice
of Violation and Order to Correct the appellant has the burden of proof by a preponderance of the
evidence that a violation has not occurred or that the corrective action ordered is unnecessary to cure
the violation.
3. Final Land Use Decisions Are Not Subject to Collateral Attack in Subsequently issued Code
Enforcement Actions. It is uncontested by both Appellant and City that decisions that qualify as final
land used decisions under the Land Use Petition Act, Chapter 36.70C RCW (LUPA), cannot be
collaterally attacked after expiration of their appeal period in subsequent code enforcement actions.
This principle, identified as finality in case law, has been reiterated in a long line of LUPA cases and
has been extended to the concept that even if a decision is illegal, it cannot be challenged once its
appeal period has expired. See, e.g., See Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11
(2005). This finality principle is statutorily derived from LUPA, which provides that appeals of final
land use decisions are barred if not filed within 21 days of issuance. See Chelan County v. Nykreim,
146 Wn. 2d 904 (2002); RCW 36.70C.040.
4. Questions Presented. The questions presented within the Examiner's jurisdiction are as
follows: (1) do the Warning and Close Out letters qualify as final land use decisions; (2) if so, do the
permitting/approval requirements of the NOV constitute an impermissible collateral attack of the
Warning and Close Out letters; and (3) if the City is still authorized to require permits/approvals for
the paving, can the Appellant remove the paving and implement alternative effective corrective
actions?
In summary answer to the questions presented: The Close Out Letter is arguably a final land use
decision and the Warning Letter is not. The NOV corrective actions are not impermissible collateral
attacks on the Warning and Close Out letters because the corrective actions address issues that are
beyond the scope of those letters. The Appellant may remove the paving if it instead implements
alternative corrective actions that adequately mitigate the Warning Letter violations.
5. Warning Letter Not a Final Land Use Decision. The Warning Letter does not qualify as a final
land use decision. The Appellant attempts to analogize the LUPA 21 day appeal period that underlies
the finality doctrine for LUPA cases with FWRC 1.15.060, which sets a 14 day period for the City to
modify a prior code enforcement order. Specifically, FWRC 1.15.060(1) provides that the City "may
request a hearing before the hearing examiner to assess costs, modify previous orders, or to enter other
orders as needed." FWRC 1.15.060(1) also sets a 14 day deadline for filing appeals of "an order to
cease activity or notice and order." The Appellant argues that requiring permits/approvals for the
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paving constitutes a modification to the Warning Letter under FWRC 1.15.060(1) and that any such
modification should have been fled within 14 days of issuance of the Warning Letter.
The Appellant's position is not found compelling for several reasons. First, the provision in FWRC
1.15.060(1) regarding modifications of orders, only applies to "orders." Chapter 1.15 FWRC only
regulates two types of orders: Orders to Cease Activity (FWRC 1.15.030) and Notices of Violation and
Orders to Correct (FWRC 1.15.040). This limitation is reiterated in the first sentence of the FWRC
1.15.060 paragraph authorizing modifications to orders: "[a] person may appeal an order to cease
activity or notice and order to the hearing examiner by filing a written notice of appeal with the city
clerk within 14 calendar days from the date of service of the order..." (emphasis added).
The Warning Letter is not an Order to Cease Activity or a Notice and Order. As testified by staff at
the appeal hearing, the Warning Letter isn't based upon any FWRC code enforcement tool. It is simply
a warning that if corrective actions are not taken that the City may initiate code enforcement processes
authorized by Chapter 1.15 FWRC. As outlined in FWRC 1. 15.03 0(4), failure to cease activity as
directed in an Order to Cease Activity is unlawful subject to criminal prosecution. The Warning Letter
does not require the cessation of any activity. It requires corrective actions to be taken. As such, it
does not qualify as an Order to Cease Activity governed by FWRC 1. 15.03 0(4). As outlined in FWRC
1.15.040(2)(e), a Notice and Order must give a violator the option of compliance, appeal or a voluntary
correction agreement. FWRC 1.15.040(2)(f) further provides that the notice and order must state that
monetary penalties will apply if the Notice and Order is not resolved. The Warning Letter doesn't
contain any of these statements and identifies no right of appeal. The reason, of course, is that the
Warning Letter is just a warning and is not binding, so there is no need for appeal.
Even if the Warning Letter were governed by FWRC 1.15.060, it still wouldn't qualify as a final land
use decision under the principles of finality outlined in LUPA case law. The most directly applicable
case is Durland v. San Juan Cnty., 298 P.3d 757 (2013). Durland addressed the issue of whether
zoning code interpretations made in code enforcement compliance plans constituted part of a final land
use decision. Durland involved a code enforcement action where San Juan County issued a Notice
of Correction for failure to acquire required permits for construction of an accessory dwelling unit
(ADU). As a result of the correction notice, the property owner and County entered into a compliance
plan and subsequent supplemental compliance plan that specified the correction actions necessary to
bring the ADU into compliance. The property owner subsequently obtained approval of a building
permit to implement the corrective actions specified in the compliance plans. A neighbor appealed the
building permit approval on the basis that the corrective actions identified in the compliance plans were
not consistent with the County's development standards.
In the administrative appeal of the building permit approval, the County's hearing examiner ruled that
the compliance plans constituted a final land use permit and the determinations in those plans
constituted final determinations as to what qualified as compliance with the County's development
standards. The Durland court held to the contrary. The Court noted the oft repeated judicial principle
that a land use decision is considered final for purposes of LUPA review when "it leaves nothing open
to further dispute" and "sets at rest [the] cause of action between the parties." 298 P.3d at 763. The
Court noted that a final land use decision concludes the action by resolving the plaintiff's entitlement
to the requested relief. The Court further noted that, in contrast, an interlocutory decision intervenes
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between the commencement and the end of a suit and decides some point or matter, but is not a final
decision of the whole controversy. Id.
The Court found that the compliance plans failed to meet the criteria for a final land use decision
because the compliance plans gave the property owner multiple options for implementing corrective
actions, some of which required permit approval. 298 P.3d at 764-765. In this regard, the compliance
plans did not put the cause of action between the parties at rest. The Court also found that the plans
did not leave "nothing open to further dispute," as evidenced by the fact that the property owner was
able to negotiate a supplemental compliance plan after the appeal period had expired on the original
plan. Id. at 765.
Under the Durland reasoning, the Warning Letter also does not qualify as a final land use decision for
purposes of LUPA. As in Durland, the City's code enforcement action was not yet put to rest and
matters were still open to further dispute since the type and adequacy of corrective actions had not yet
been resolved. Like the Durland compliance plans, the Warning Letter presented the Appellant with
multiple options for compliance. The Warning Letter expressly provided that the City would pursue
further code enforcement action if the Appellant did not commence and complete the corrective actions
by specified deadlines. This course of action necessarily would involve additional City decisions as to
whether corrective action had in fact been commenced and whether they were adequate to remedy the
violations. For these reasons, the Warning Letter does not qualify as a final land use decision for
purposes of LUPA, and by analogy, for purposes of FWRC 1.15.060.
6. Close Out Letter Likely a Final Land Use Decision. The Close Out Letter likely does qualify
as a final land use decision under LUPA case law. It put the code enforcement action instituted by the
Warning Letter to rest and left nothing open to further dispute.
The finality of the Close Out Letter is most directly addressed by Chumbley v. Snohomish Cnty., 386
P.3d 306 (Wash. Ct. App. 2016). In Chumbley, the Court of Appeals held that a notation in a case
activity log terminating a code enforcement action constituted a final land use decision. In that case,
Snohomish County issued a Notice of Violation for some unauthorized land disturbing activity
associated with a building permit approved for construction of a single-family home. The applicant
had engaged in some land disturbance on lots containing steep slopes separate from the lot upon which
the residence was constructed. The land disturbing work was for the installation of septic drain fields
designed to serve the single-family home. The applicant had acquired a land disturbance permit for
the single-family home lot, but not for the lots affected by the drain field improvements. The County
initiated its code enforcement action against the building permit applicant by issuing a Notice of
Violation with suggested corrective actions, which included obtaining a land disturbance activity and
critical areas permit. 386 P.3d at 310. The building permit applicant subsequently remedied the land
disturbance violation to the satisfaction of the County without a land disturbance permit. In response,
the County wrote in its code enforcement case activity log that no permit would be required and that
the land disturbance activity had been corrected. Id. at 311.
Neighbors and the BNSF Railway Company, Inc. were not happy with the County's close out of the
code enforcement action and filed a judicial appeal under LUPA. The County and building code
applicant sought to have the appeal dismissed on grounds it was untimely, arguing that the building
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permit and septic permits for the single-family home was the final land use decisions. The Court of
Appeals disagreed. The Court found the challenge timely because it was filed within the requisite 21
day LUPA appeal deadline from the date that the County entered its close out in its case activity log.
The Court also found it significant that the appeal had been filed within 21 days of issuance of the
certificate of occupancy for the single family home.
In reaching the conclusion that the appeal was timely filed, the Court applied the Durland
finality principle that "[a] final determination is one which leaves nothing open to further dispute and
which sets at rest the cause of action between parties." Id. at 315. The Court reasoned as follows:
County Planning closed its enforcement file on September 9, 2015, with the decision that "no
permit will be required. " County Planning certified the building for occupancy on September
22, 2015. These were County Planning's final determinations that the county was finished
with enforcement of land disturbing activity and critical area ordinances on lots 60 and 61.
Until these decisions were made, it was open to further dispute whether County Planning
would require Begis to apply for a permit and submit to a rigorous geotechnical review such
as County Planning conducted for lot 36.
386 P.3d at 315.
Arguably, if a notation in a case activity log can serve as a final land use decision on a code enforcement
case, then the Close Out Letter should qualify as well. Both actions meet the broad -based judicial
criteria for a final land use decision — they both leave nothing open to further dispute and they both set
at rest the cause of action between the parties.
Chumbley is arguably distinguishable for two reasons. First, the Chumbley code enforcement case was
likely initiated by a formal code enforcement process governed by Snohomish County regulation. The
Chumbley opinion noted that Snohomish County had issued a "Notice of Violation" for the
unauthorized land disturbance but didn't identify whether the "Notice of Violation" was part of a formal
code enforcement process regulated County regulations. The Chumbley decision was also
distinguishable in that it was unclear if the case activity notation alone constituted a final land use
decision. As shown in the quoted language above, the Court construed the case activity notation and
the certificate of occupancy as the County's "final determinations" that the code enforcement case was
closed. The Court did not clarify if either alone would qualify. It didn't need to because the appeals
were filed within 21 days of both decisions.
It is recognized that the City's code enforcement case was entirely informal compared to that of
Chumbley. The City initiated its action with just a Warning Letter that had no regulatory or binding
affect and terminated it with what it asserts is a similarly informal Close Out Letter 6. However, as
6 The informality of the City's code enforcement process initiated by the Warning Letter implicates the City's post -
hearing brief arguments that the Close Out Letter doesn't have the formal attributes of a final decision as outlined in
WCHS, Inc. v. City of Lynnwood, 120 Wn. App. 668, 679 (2009). As noted at page 15 of the City's brief, WCHS held
that where an agency's letter doesn't use the word "decision", "final" or "appealable," the letter is not a final,
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recognized by City witnesses themselves during the hearing, one of the purposes of the Close Out
Letters is to provide assurance to alleged violators that their case is closed. Informal or not, the Close
Out Letter puts the City's code enforcement case to rest and is designed in part to assure the alleged
violator that nothing is left to further dispute. It is also noteworthy that doubts about the finality of
decisions must be resolved in favor of the citizen. See WCHS, Inc. v. City of Lynnwood, 120 Wn. App.
668, 679 (2009). In this regard the broad based judicial standard (case at rest, no further dispute) for
qualifying as a final land use decision in both Chumbley and Durland is squarely met and the Close
Out Letter for that reason should be construed as a final land use decision.
7. Stormwater Permits/Approvals Outside Scope of Warning and Close Out Letters. Even if both
the Warning and Close Out Letters were to qualify as final land use decisions for purposes of LUPA,
they both did not impliedly or expressly determine that no stormwater permits and/or approvals were
necessary for installation of the pavement. The requirement for such permits/approvals was outside
the scope of the letters. Consequently, the NOV requirements for stormwater permit/approvals are not
barred as a collateral attack of the decisions made in the Warning and Close Out letters.
The concept that final land use decisions are limited in scope is well highlighted in the Chumbley case,
initially addressed in Conclusion of Law No. 6 supra. As previously noted, Chumbley involved the
failure of a developer of a single-family home to acquire a critical areas permit and land disturbance
permit for septic improvements designed to serve a single family home. The developer had acquired a
building permit for the home in question, but the applicant intended to place the drain fields on separate
lots. The building permit application didn't identify that the drain fields would be placed upon separate
lots. 386 P.3d at 309. The building permit approval also didn't mention the proposed drain fields on
separate lots. Id. The County issued approval for the building permit application the day after the
County's Health District approved the septic system design. Id. As previously discussed in
Conclusions of Law No. 6, after issuing the building permit the County issued an NOV requiring the
applicant to acquire a critical areas permit and land disturbance permit for the drain field lots and then
the County subsequently abandoned that code enforcement action.
Pertinent to this conclusion of law, the Chumbley court rejected application of finality to the building
permit and an associated septic permit because the land disturbance and critical area issues the applicant
was trying to subject to finality were beyond the scope of the building and septic permits. Of central
importance to the Court's reasoning was that issuance of the building permit did not necessarily require
the County's planning department to make a preliminary decision approving grading for the drain fields
on the drain field lots. Id. at 313-314. The Court also found it determinative that although health
department approval was required as a pre -requisite for building permit approval, the prior health
department approval did not preclude the County planning department from its responsibility to enforce
critical area and land disturbance regulations for the separate drainage field lots:
appealable order. However, the term "close out" denotes the same level of finality as any of these specified terms.
Further, the case activity notations in Chumbley didn't contain any of these terms and presumably the certificate of
occupancy did not either. Similarly, the City's brief quotes from WCHS that whether a decision is distributed
according to regulatory distribution requirements is also indicative of finality. However, as acknowledged in the
City's brief, the distribution protocol is only a factor used to assess whether a letter is a final land use decision. The
case activity notation in Chumbley likely did not follow any legislatively adopted distribution protocol as well.
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The Health District's approval of the onsite sewage system is not a substitute for County
Planning's ongoing duty to enforce the critical areas ordinances when a sewage system is
installed in a landslide hazard area. Unlike in Samuel's Furniture, the two regulatory
agencies —County Planning and the Health District —did not have the same decision to make
and did not have regulatory authority over the same activities. They operate under different
governing statutes with different purposes. As the Health District describes its mission, the
focus "is directed to effective treatment of sewage effluent from a public health perspective. "
The Health District's review of the design and location of an onsite sewage system is
concerned to some degree with the potential for erosion, WA 246-272A-0220. But the
Health District is not charged with deciding whether grading a hillside for a drain field is
permitted under the Snohomish County Code. The Health District does not enforce the county
code provisions designed to prevent landslides.
386 P.3d at 314.
Similar to the Chumbley situation, the need for stormwater permits and approvals was outside the scope
of the Warning and Close Out Letters. The letters do not apply any regulations that govern the
installation of pavement and they do not determine that such regulations should be waived for the site.
Indeed, the Appellant has not identified any code based reason why such requirements would be
waived. The letters were clearly code enforcement decisions, not land use paving decisions. As
outlined in Findings of Fact 6 and 7, the authors of the letters were solely addressing the water quality
violations associated with track out. Their training, expertise and job responsibilities were limited to
that issue. The focus of their mission was reflected in the focus of their letters.
It is acknowledged that while Chumbley found it significant that separate permitting decisions were
made by separate permitting agencies, in this appeal the issue of scope is being defined by separate
City departments operating under the same letterhead. As previously noted, issues of finality should
be resolved in favor of the citizen. However, it is patently unreasonable for the Appellant to conclude
that something as significant as waiving regulatory requirements for three acres of concrete is impliedly
waived in an informal code enforcement letter simply because the issue wasn't addressed. People are
presumed to know the law. Deegan v. Windermere Real Estate/Center-Isle, Inc., 197 Wn. App. 875,
893 (2017). It is particularly difficult to believe that an experienced developer such as the Appellant,
who has been through other development projects in the City, see Tr. 22, could reasonably conclude
that the large menu of corrections actions identified in the Warning Letter could all be implemented
without regulatory review and approval.
In asserting that the letters serve as waivers of permitting requirements for the paving, the Appellant
has repeatedly analogized to preliminary plat review. That analogy does not serve it well. The
Appellant asserts that once preliminary plat is approved that the City could not require stormwater and
street improvements that are not identified in the approved preliminary plat design. The Appellant's
position that the Warning Letter serves as a free pass from separate permitting requirements is
tantamount to asserting that preliminary plat approval precludes the need for final engineering review,
final plat review and building permit review. It is tantamount to asserting that approval of a building
height variance eliminates the need for a building permit. Of course, that is not the case. Preliminary
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plat review is final as it applies to the development and engineering standards applied at the conceptual
level of preliminary plat review. Preliminary plat approval likely does preclude any subsequent
permitting requirements that conflict with the approved conceptual preliminary plat design. However,
such approval does not preclude the City from requiring engineering and building permits to address
the more detailed levels of subsequent land use review. Similarly, if the Warning and Close Out Letters
qualify as final land use decisions, they do so only for designating what codes have been violated and
what range of actions are necessary to correct them. The Warning and Close Out Letters do not
preclude the City from requiring the permits and approvals necessary to implement those corrective
actions.
8. Paving Can Be Removed. The Appellant has requested the option of removing the pavement
if it is not excused from the permits and approvals required for installation. The Appellant is entitled
to that option.
The City opposes this option, arguing that the Examiner only has the authority to waive corrective
actions that are ordered if they are found to be unnecessary under FWRC 1.15.060(4)(c). Ultimately,
complying with the City's permitting and approval requirements for the pavement is unnecessary if
alternative means of correcting the Warning Letter violations are available. As repeatedly emphasized
by the City throughout this appeal proceeding, the Appellant was given a menu of corrective actions
and no specific corrective action was directed by the City. If it's possible to correct the violations
identified in the Warning Letter without paving, the paving is unnecessary and along with it the
associated required permits and approvals. The Appellant should be given the option of removing the
pavement if it is able to abate the Warning Letter violations through alternative means.
DECISION
The Appeal is granted in part. The Appellant is authorized to remove its paving if it is able to
implement alternative corrective actions that remedy the applicable violations identified in the City's
January 6, 2020 Notice of Water Quality Violation Warning. If the Appellant elects to retain the
pavement, it must comply with the corrective actions identified in the December 18, 2020 Notice of
Development Code and water Quality Violation (NOV), which includes any upgrades to the City's
stormwater system. If the paving is retained, all NOV required plans, applications and supporting
documentation shall be submitted to the City within 30 days of this decision. If the Appellant elects
to remove the pavement, it shall submit a corrective action plan to the City within 30 days of this
decision.
The removal of the pavement and the implementation of any other correction actions
shall be fully subject to all City permitting and approval requirements. Further, the adequacy
of any alternative and/or additional corrective action is still an open issue — the City will still
have the authority to issue code enforcement orders and take any other action authorized by
state or local law to enforce its regulations should it find that the alternative/new correction
actions do not remedy the Warning Letter violations.
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DECISION issued this 91h day of March 2021.
--
Hearing Examiner for Federal Way
Appeal
As outlined in FWRC 1.15.060(6), this Decision is a final decision of the City of Federal Way subject
to judicial review under the Land Use Petition Act, Chapter 36.70C RCW.
NOV Appeal - 13
Appendix A
February 8, 2021 Hearing Transcript
Plant 2 LLC Appeal — HEX 20-004
Note: This is a computer generated transcript generated by Rev.com, which claims 99% accuracy. This is
not an official court transcript. A recording of the hearing is available from Seattle Public School for those
that need to generate an official transcription.
Phil Olbrechts:
All right, perfect. Okay. For the record, it's February 8th, 2021. I'm Phil Olbrecht's, Hearing Examiner for
the City of Federal Way. We have an appeal of a notice of violations this morning. Let's start off real quick
by introductions. And also if you could spell your name for the record, I have these hearings electronically
transcribed, so they need the spelLynng. My last name is O-L-B-R-E-C-H-T-S. And Mr.Lynn, let's start with
you.
William Lynn:
[crosstalk 00:02:47] William Lynn, L-Y-N-N, for the appellant.
Phil Olbrechts:
Okay, Mr. Lell?
Zack Lell:
Thank you and good morning, Mr. Examiner. Zack Lell, L-E-L-L, representing the City of Federal Way.
Phil Olbrechts:
Okay. All right, and then Mr. Rhoades.
Eric Rhoades:
Eric Rhoades, for the City of Federal Way. My name is spelled R-H-O-A-D-E-S.
Phil Olbrechts:
Okay. And I mean, can you tell from the participant list if we have any members of the public that have
joined us yet at this point or not? It doesn't... Looks like those are all city or appellant people, is that
correct?
Phil Olbrechts:
I see counsel wagging their heads, so it looks like we're okay so far. There will be an opportunity for public
comment as we discussed in the pre -hearing emails, once we get to that part of the hearing. The format
for today will be as laid out in the pre -hearing order, which is, we'll start off with the appellant make their
witnesses that are to... Have their witnesses present testimony, then the city, then we'll get into public
comments. If the public joins us, then there's a city appellant rebuttal, and then a closing argument in
order of city and appellants. Well, I guess the major issue still outstanding is we had discussed possibly
addressing laches and equitable estoppel, acknowledging I didn't have jurisdiction to resolve those claims,
but the city had said it wanted to present evidence on them. And I had mentioned in emails, if there was
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an agreement between the parties, we could do that. Mr. Lynn, what's the appellant's position on that
issue at this point?
William Lynn:
The appellant did not agree to do that. It didn't seem that valuable to us to present evidence on something
that the examiner can't decide.
Phil Olbrechts:
Okay. Mr. Lell, any comment on that or...
Zack Lell:
No, Mr. Lynn accurately summarized the parties' discussion.
Phil Olbrechts:
All right. Okay, so we won't get into that. Let's get into entry of the exhibits for this hearing then. Let me
pull up my list that I have. [crosstalk 00:04:51]
William Lynn:
As a preliminary matter, I've seen that there were several people from the appellant's team that were
going to join and are not on, including one who's a witness. So I'm wondering whether the other... I know
there was a circulation of a direct invitation to [Mr. Schutz 00:05:12] and me, but I'm not sure that the
others actually got an invitation that allows them to participate, or at least I don't see anybody here. I'm
just raising the question so that we don't stall out when it gets to the testimony.
Rebecca:
I am able to promote people to panelists.
William Lynn:
Okay. So can you identify, maybe we can just do it later, but Mr. Davidson, Logan Davidson is going to be
a witness shortly, so if we could issue his promotion soon it would be helpful.
Phil Olbrechts:
Yeah, I don't see him on either the panelist or attendee list. Does this mean that he hasn't been able to
Lynnk in yet or...
William Lynn:
I don't know, I haven't asked [crosstalk 00:06:03]. Maybe Mr. Schutz could try to contact him and figure
out... Oh, there, I now see him as... There he is. Apparently regained status.
Phil Olbrechts:
All right. Okay, so we have everybody we need right now. Okay. Well, like I said, let's jump in then to the
exhibits. I have an appellant exhibit list. Does the city have any objection to any of the documents listed
in the appellant's exhibit list?
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Zack Lell:
No objection, Mr. Examiner.
Phil Olbrechts:
Okay, and then Mr. Lynn, any objections over the exhibits in the city's exhibit list?
William Lynn:
No objections.
Phil Olbrechts:
Okay, so the exhibits for both those lists will be admitted. And then when you were referring to them
during the hearing, just to label them as appellant's exhibit, whatever number it is. What about... Should
we get in the pre -hearing briefing as exhibits? Sometimes counsel have objections to that, any objections
to having all the pre -hearing briefing with their attachments?
Zack Lell:
Mr. Examiner, the city doesn't have any objection to the briefing that was conducted in and submitted in
accordance with the examiner's pre -hearing order. We do have some concerns regarding the document
that was just served on the city this morning, an hour before the hearing.
Phil Olbrechts:
Okay. All right. Yeah, and Mr. Lynn, what about that? That wasn't put on... I don't think it was in the
appellant's exhibit list, so it arguably was not timely.
William Lynn:
I didn't consider a legal brief to be an exhibit. There wasn't a time specified for that that we could do post -
hearing briefs, but I assumed there would be some opportunity for briefing and it seemed appropriate to
do it at the time we did.
Phil Olbrechts:
Yeah. I mean, if I were to exclude it, you could just read it into the record and I don't want to have to go
through that, so that's the kind of argument Bricklen always uses on me. So let's... What I'll say, Mr. Lell,
is I'll give the city an opportunity to submit a response brief after the hearing is closed. Would that suffice?
Zack Lell:
Yes, that's acceptable. Thank you Mr. Examiner.
Phil Olbrechts:
Okay, and then the appellants can submit a reply then to that as well, so we'll set it up that way. So, okay.
I'll admit then the pre -hearing briefing and the post -hearing brief as well. And then finally, that email
correspondence between the parties, any objections about those coming in? That would be any
correspondence between myself and the parties. Okay, then those documents will be admitted as well.
Anything else before we jump into it this morning? Okay, then. All right. So let's start off, appellants, as I
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said get to go first here. So Mr. Lynn, do you want to make any opening comments or just jump straight
to witness testing?
William Lynn:
Well, I would like to make just a few opening comments. As you've noted, and as our pre -hearing motions
have made clear, this case is primarily about finality. Specifically the argument at the January 2020 NOV
process, which came to a final conclusion, was a final process and not a subject to further debate and
discussion. The importance of that is that, paving the site was in play as a discussion point before that
process started. It had been something, a step identified by the city and the applicant prior to that January
NOV process. When the city issued the January NOV, it attached a document, a document listing best
management practices that specifically identified paving as one of the BMPs. The applicant received the
notice, carried out the paving that had been discussed previously and was discussed in the attachment,
received, notified the city of that. There was a site inspection. The city knew that not only was there some
paving that had been completed, but a little more was to follow.
William Lynn:
At the site of inspection, the city was able to see the paving that had been completed and expressed not
only satisfaction, but gratitude to the applicant and then issued a final close out letter that brought that
whole enforcement action to a conclusion. At no point in that process, either before or after the January
2020 NOV, was there any discussion of additional permit requirements. And there certainly was no
discussion of any necessity that the city now claims, to bring the entire site storm drainage system up to
current standards. And frankly, that highlights the importance of finality in this context, because had the
applicant been advised of that, the paving solution would never have been adopted. It's completely
wasteful of resources and terribly expensive to upgrade the entire storm drainage system, particularly
because the evidence will show that the Sound Transit has identified this site as the likely site of a future
Federal Way Light Rail Station, meaning that any improvements to the site will be wasted.
William Lynn:
And certainly the applicant would have no reason to invest millions of dollars in upgrading a storm
drainage system, for a facility that it was going to only be able to use in all likelihood for a very short period
of time. So the outcome would have been totally different had the city taken a different course, and
advised the applicant of what it now claims the applicant needed to do. What that means is that finality
is particularly important here. This is a little than other finality cases. Although I think it's frankly a lot like
the Nykreim case, where the city came in a year later and tried to impose a different requirement on a
boundary Lynne adjustment already approved.
William Lynn:
I think an analogy might be a plat, where a preliminary plat included a requirement for offsite
improvements. The improvements are made, the city signs off on the final plat, and then a year later
comes in and says, "You know that offsite improvement you made, we should have required a different
right of way work approval or permit from you. And by the way, we should have required you to upgrade
the storm drainage system associated with that. So we're going to reopen the matter and impose this new
requirement." That's what's happened here, and that's what we don't think is permitted by the finality
doctrine, both because of the provisions of the city code and because the city failed to appeal the final
close out of the NOV matter in January of 2020. That's all I have by way of opening, and I only have one
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witness this morning. There may be another called as a rebuttal witness, but my only witness this morning
is Mr. Davidson.
Phil Olbrechts:
Okay. Mr. Davidson, you there?
Mr. Davidson:
Yep.
Phil Olbrechts:
Okay, I need to swear you in. Mr. Davidson, do you
nothing but the truth in this proceeding?
Mr. Davidson:
Yes.
Raise your right hand. Do you swear to tell the truth,
Phil Olbrechts:
All right, and your last name is spelled D-A-V-1-D-S-0-N. Is that correct?
Mr. Davidson:
Yep, that's correct.
Phil Olbrechts:
Okay. All right, go ahead.
William Lynn:
And Mr. Davidson, what is your employment?
Mr. Davidson:
I work for [Corliss Resources 00:13:43] as the Environmental and Land Resource Manager.
William Lynn:
Okay, and is Corliss Resources the operator of the plant to facility in Federal Way?
Mr. Davidson:
Yes.
William Lynn:
Okay, so they're affiliated organizations?
Mr. Davidson:
Yep.
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William Lynn:
But your actual employment is with Corliss Resources?
Mr. Davidson:
That's correct.
William Lynn:
Okay, and what are the duties that you have in your position with Corliss Resources?
Mr. Davidson:
Everything from managing existing permits, to acquiring new or helping with the project management of
acquiring new permits. I'm kind of the in-house geologist. I manage the GIS data, collect drone data, and
the list goes on and on, but...
William Lynn:
What's PIS data?
Mr. Davidson:
Oh, GIS. Geographic Information Systems.
William Lynn:
Okay. So does the compliance with environmental regulations at the Federal Way facility fall within your
job description?
Mr. Davidson:
Yes.
William Lynn:
And were you involved in the code compliance issues that are part of this appeal?
Mr. Davidson:
Yes.
William Lynn:
Okay. Mr. Examiner, should wejust refer to the exhibits in our... As appellant's number one, two, et cetera.
Phil Olbrechts:
Yeah, that'll work. Yes, thank you.
William Lynn:
Okay, thank you. When did you start working on the... Well, first of all, could you explain to all of us what
track out is, in the context of an operation like plant two?
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Mr. Davidson:
Yeah. Track out is simply seal dirt, clay, whatever you want to call it. Sand, small... Even up to gravel size
material, leaving the site via our trucks, almost always.
William Lynn:
Okay, so the trucks track out or have the potential to track out material onto adjacent roadways?
Mr. Davidson:
Yep.
William Lynn:
And what's the problem with that aside from just the aesthetic part of it?
Mr. Davidson:
Well, one of the biggest issues is causing turbidity and turbid discharges into, aka dirty water, going into
the city's storm facilities which can eventually make its way to streams or wetlands or whatever.
William Lynn:
Okay, so is this a sort of a perennial problem with sand and gravel facilities?
Mr. Davidson:
Yeah. Depends on the facility, but yeah. It's an issue. Yeah.
William Lynn:
Okay, and had you worked on track out issues at plant two prior to January of 2020?
Mr. Davidson:
Yes.
William Lynn:
Okay, and could you tell the hearing examiner how those complaints or how the issue come about. Maybe
looking at appellant's exhibit one, which is an email exchange, I think between you and the City of Federal
Way, and I thinkthe Department of Ecology was involved in that too. Could you maybejust look at exhibits
one and two, appellant's one and two and then tell the examiner what went on there?
Mr. Davidson:
Let's see. So we had received a notice of violation from the Department of Ecology for track out, and so
we responded with a letter talking about what we would do. That's pretty... I mean, anytime we get a
notice of violation, that's what we do. We attempt to address it. So, how we addressed it and how we
responded to that notice of violation was, we talked about bringing out a street sweeper to, let's see. I
say, "Make visits at least three times a week. On top of this, the plant workers have been and will continue
to hand sweep the entrances as necessary. We're going to keep doing inspections." And then we... So
those were kind of our short-term immediate responses. Our long-term response was, as I said in the
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letter, "In response, we're making plans to pave the area on our property before the exit. The area... We'll
add a minimum extend 100 feet in from the exit."
William Lynn:
And I hear reading from appellant's exhibit two, that your letter to Ms. McCray who's with the Department
of Ecology.
Mr. Davidson:
Yep, and the city was included on that communication.
William Lynn:
Okay. And turning back to appellant's exhibit one, could you tell the examiner what the communication
was from the city, if there was one regarding the pavement proposal?
Mr. Davidson:
Yeah, Leah from the city responded. You don't want me to... Do you want me to read the whole thing?
William Lynn:
Well, just if you could identify where on exhibit one that is. Is that the... Just tell us where we find that?
Mr. Davidson:
Yeah, in her response she says, "We would also appreciate any updates that you have on the proposed
pavement for your main exit area, and we'll keep you apprised of any issues we note as well."
William Lynn:
And Ms. Meyer is with the City of Federal Way in the storm water area?
Mr. Davidson:
Yes.
William Lynn:
Okay, and was she the person who subsequently was involved with the January issue?
Mr. Davidson:
I think I had most of our communications... I think she was involved with that for sure, but a lot of
communication was with Kevin too as well. I'd have to refer to each of the emails, but I think both of them
were involved.
William Lynn:
Okay. Could you explain how the Department of Ecology is involved in permitting issues regarding your
facility in Federal Way?
Mr. Davidson:
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Yeah. So we have a Sand and Gravel General Permit, which is a NPDES permit, stormwater permit issued
by the state. Basically, any concrete producer, asphalt plant concrete or asphalt recycLynng, sand and
gravel, mining, quarries, et cetera. All those types of uses are required to have a Sand and Gravel General
Permit. So DOE is... They inspect us and they have permit requirements related to storm water. Yeah.
William Lynn:
So they have storm water permit issues or permit jurisdiction, and the city has some overlapping
jurisdiction with the Department of Ecology?
Mr. Davidson:
Yeah.
William Lynn:
Okay, so you have dealt with both on the complaint and remedy side?
Mr. Davidson:
Yes.
William Lynn:
Okay, was this Department of Ecology compliance issue resolved then by a notice and a series of actions?
And then this letter from you, did that bring that to a conclusion?
Mr. Davidson:
Yeah.
William Lynn:
Could you then look at appellant's exhibit three and tell the examiner what was going on at that point?
That was in December of 2018, so a few months after August.
Mr. Davidson:
Let's see. I might not have that one. Oh, let's see, December 18. December 2018?
William Lynn:
Yeah, it actually starts at... If you go back to the end of it chronologically, it looks like it starts December
6th in an email from Leah Meyer to you.
Mr. Davidson:
I don't have that document in front of me.
William Lynn:
Okay, so let me just.... It indicates that she had made some site inspections and notice track out, and then
you respond to her with some correspondence about sweeper problems. Do you recall that then?
Mr. Davidson:
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Yeah.
William Lynn:
Okay. And then at the top of the page, which is your December 10th email, you say, "I appreciate your
patience with us. We are trying our best. We are still working to get resources allocated to pave the
entrance. It's taking much longer than I hoped it would take." So was paving still under discussion both
internally at Corliss Resources, and also externally with the city?
Mr. Davidson:
Yes, definitely.
William Lynn:
Okay, and do you recall what the reason was for some hangup in wilLynngness to pave the site by Corliss?
Mr. Davidson:
I mean, it really came down to resources. Financial as well as personnel resources.
William Lynn:
Okay, at what point did Corliss become aware of interest in acquiring the property for another use?
Mr. Davidson:
Are you referring to using an acre or so for putting a carwash on it?
William Lynn:
Well that, yeah. I guess we can talk about that, but I was really referring to Sound Transit. When did you
become aware of any interest in the property by Sound Transit?
Mr. Davidson:
I can't remember an exact date, but we've been talking about that for more than a year, for sure. We've
been aware of that for quite some time and have been talking about, "What's the business implication to
us potentially losing our concrete batch plant," which would be significant.
William Lynn:
Okay, and would that impact decisions made by Corliss as to investment in the site for... To support the
concrete batch plant?
Mr. Davidson:
Yeah, absolutely. Yeah, it's huge.
William Lynn:
So at some point, not long after that in January, you received a formal notification by the city. Do you have
appellant's exhibit four, January 6th, 2020, notice of water quality violation?
Mr. Davidson:
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Yep, I've got that.
William Lynn:
Okay, and what was your response? What was Corliss' response to that notice?
Mr. Davidson:
Well, pretty quickly after getting that we went to work on... Well, we talked about it internally and in the
end decided we needed to pave the entrance and exit because we've had a history of these track out
issues and everything we were doing clearly wasn't... These kind of short-term solutions were not working
as well as they should. So we ended up paving.
William Lynn:
And is paving something that's referred to as a long-term best management practice or BMP?
Mr. Davidson:
Yeah, I would say so for sure.
William Lynn:
Okay, so do you have the January notice in front of you? January the exhibit four.
Mr. Davidson:
That's the notice of water quality violation, January 6th. Is that what you said?
William Lynn:
Yes. And did that come with the attachments that are on your copy of this, including different publications
by the King County Department of Water Quality?
Mr. Davidson:
Yeah.
William Lynn:
Okay, and do you know the significance of the King County publication in Federal Way?
Mr. Davidson:
If I'm correct, the City of Federal Way adopts the King County stormwater code. [crosstalk 00:26:57]
William Lynn:
They adopt the manual. They use the same manual.
Mr. Davidson:
Yeah. Okay.
William Lynn:
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But in any event, Federal Way attached these documents to the notice of violation. What do you take
from that? What did you read from that?
Mr. Davidson:
From the BMPs?
William Lynn:
Mm-hmm (affirmative).
Mr. Davidson:
Well...
William Lynn:
Before you do that, why don't you look at the top of the second page of the end of the notice of violation,
paragraph three. You have that in front of you?
Mr. Davidson:
Page two, paragraph three on the notice of violation?
William Lynn:
Right, at the top of the page.
Mr. Davidson:
Oh, at the top of the page. [crosstalk 00:27:50]
William Lynn:
It says, "Please, implement both short and long-term BMPs."
Mr. Davidson:
Yes.
William Lynn:
And then it goes on to refer to the attachments, and those are the excerpts from the storm manual or the
storm... Yeah, I guess from the storm manual of King County?
Mr. Davidson:
Yeah.
William Lynn:
And could you look at A19, which has page number 49. It's one of the attachments to the NOV, and look
at supplemental BMPs. Just read the second one if you would.
Mr. Davidson:
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Mm-hmm (affirmative). Pave the mixing, production and or pouring areas with a slope that drains to a
central collection area.
William Lynn:
Is that the step that Corliss took in response to the NOV?
Mr. Davidson:
Yeah.
William Lynn:
Okay. I noticed that a number of the other BMPs, for example, under required routine maintenance says,
"Vacuum paved areas." Does paving facilitate other short-term BMPs? Does it make it easierto accomplish
short-term BMPs?
Mr. Davidson:
Yeah, definitely. If you've got gravel, you can't... Street uses a sweeper truck on gravel. He'd just [crosstalk
00:29:18] gravel endlessly.
William Lynn:
Okay. So if it's just compacted gravel, you can't sweep it effectively, whereas if it's paved, you can hose it
off, you can sweep it, you can vacuum it and et cetera?
Mr. Davidson:
Yep.
William Lynn:
So what was the response of the city to your paving the site? The areas of the site. Maybe before we go
on, could we turn to the aerial photographs that are exhibits nine and 10? Do you have those?
Mr. Davidson:
I don't have those printed out in front of me, but I'm familiar with them.
William Lynn:
Okay. So, does one of those, I think it's nine, represent the before condition, and then 10 represent the
after condition after the paving?
Mr. Davidson:
Yeah, there's before.
William Lynn:
Okay. And so, maybe if you could orient us to the adjacent streets, first of all, is this oriented to the north
and the south? Is the south the bottom?
Mr. Davidson:
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Yep.
William Lynn:
Okay, so it looks like there are a couple of entry entrances there, and this was the before conditions. So
those areas were previously paved?
Mr. Davidson:
Yeah.
William Lynn:
Okay, what street is that? The one that runs length was along the bottom of the rectangle.
Mr. Davidson:
That's 352nd.
William Lynn:
Okay. And then to the right, the street that runs north and south is what?
Mr. Davidson:
Enchanted Parkway.
William Lynn:
Okay. So if we could look then at exhibit 10, could you tell us... Could you show us what additional areas
were paved?
Phil Olbrechts:
Hold on. I'm going to try to get that up. Let's see. Exhibit 10, did you say Mr. Lynn?
William Lynn:
Yes. Thank you.
Phil Olbrechts:
Okay, there we go.
William Lynn:
So same orientation of the photograph.
Mr. Davidson:
Mm-hmm (affirmative).
William Lynn:
And could you tell the examiner where the additional paving was accomplished?
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Mr. Davidson:
Yeah. So that western most entrance. Oh, sorry. Yeah, western most. Basically, from where his pointer is
to the north. All the way to the northern end of the property and then to the east, that's the... Yeah, right
there.
Phil Olbrechts:
Okay.
William Lynn:
So basically the trucks could drive, get loaded, and come out entirely on paved surfaces.
Mr. Davidson:
Mostly. There's some trucks that will end up going on on gravel, but they can wash off their wheels which
they'd normally do. And then, having any pavement is better than nothing for sure.
William Lynn:
Okay, so we were talking about the city's reaction to the paving. Could you look at appellant's exhibit...
PART 1 OF 5 ENDS [00:33:04]
William Lynn:
Who to the paving... could you look at appellant's exhibit five, please. Tell the examiner what that is.
Mr. Davidson:
So is that my... I'm not looking at the list of...
William Lynn:
That's the letter from you to Leah Meyer dated January 20th.
Mr. Davidson:
Okay. Just give me a second. All right so that's... I wrote this. This was a response to that notice of violation.
Just keeping the city informed on what we were doing and what we would be doing.
William Lynn:
And it looks like from number two, and number three, you had paved two entrances at that point and you
were planning additional paving.
Mr. Davidson:
Yes.
William Lynn:
And?
Mr. Davidson:
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And I think all of that's shown in that I think that's the March aerial photos.
William Lynn:
Okay. So the after photo exhibit 10 shows all of the work but only a portion had been completed as of
January 20th.
Mr. Davidson:
That's correct.
William Lynn:
Okay. And then could you look at exhibit six which is a few days later. It's an email exchange between you
and Leah Meyer with Kevin Duke included as receiving a copy. Starts with January 21st, the mail from you
to Leah Meyer indicating and attaching your response. So would that have been the January 20th letter
that was sent to her via this email?
Mr. Davidson:
Yeah.
William Lynn:
And then her response was January 21st, the same days thanking you for sending the letter and then
taking you up on the opportunity or the invitation for a site visit?
Mr. Davidson:
Yep.
William Lynn:
Okay. And was there subsequently a site visit?
Mr. Davidson:
Yeah, just Kevin Duke came out. I think that was just within the next few days if I remember. Oh yeah. So
I said. "Thursday at 2:00 PM works great."
William Lynn:
And so Mr. Duke came out and visited the site at that point?
Mr. Davidson:
Yep.
William Lynn:
And do you recall the reaction to the paving that had been completed by plant two owners at that time?
Mr. Davidson:
Yeah. I think Kevin was happy with everything that we had done so far.
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William Lynn:
Okay. And then could you look at the March 3rd, 2020 letter which is appellant's Exhibit seven.
Mr. Davidson:
Okay.
William Lynn:
And what is that, how does that fit in here?
Mr. Davidson:
So that's the close-out notice Water Quality Violation.
William Lynn:
Okay. So is that standard procedure for what happens at the end of a violation process?
Mr. Davidson:
Yep. If the issue is resolved, then a close-out letter gets sent out.
William Lynn:
And that specifically refers in the second paragraph to the paving that had been completed.
Mr. Davidson:
Yeah.
William Lynn:
And then it also attaches again those VMP documents including A19 which was the one that mentioned
paving.
Mr. Davidson:
Yeah.
William Lynn:
Do you know the reason for providing those again to you?
Mr. Davidson:
I think they... in relation to these kind of ongoing short-term BMPs, I am assuming that they want us to
continue to not have issues. So as you'd kind of noted, paving is kind of one step but even with paving you
need to implement some BMPs. So, which great one is having a street sweeper come out multiple times
a week or as needed to clean up on within our sites so that track out doesn't leave our site.
William Lynn:
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So you had been talking with the city about paving for some time even before the January NOV. In those
periods leading up to the January NOV when you were talking with the city, was there ever any discussion
about permit requirements that would be needed if you elected to pave the property?
Mr. Davidson:
No. Never.
William Lynn:
Any discussion that that would trigger updating the stormwater system for the entire property?
Mr. Davidson:
No, definitely not.
William Lynn:
Okay. And then when you got the NOV in January of 2020, was there any discussion about either a permit
processed or upgrading the storm requirements?
Mr. Davidson:
Say that again. Sorry.
William Lynn:
After you got the January NOV, was there ever any discussion by the city that you would have to meet
permit requirements associated with the paving or that if you paved you would be required to upgrade
the stormwater system for the whole property?
Mr. Davidson:
No, not until much later. I think that was this December. Nine months later at least.
William Lynn:
So, you know that one of the consequences of paving now that the city is asserting is that you'd have to
upgrade the stormwater system. Has Corliss obtained any estimates as to what it would cost to upgrade
the entire storm system for the site?
Mr. Davidson:
Yeah. So Apex, our engineers put together an estimate for to 2.4 million. Obviously it's an estimate, so I'd
probably high ball but I look through it and kind of double-check some of the numbers. So, I mean, you
call it two or 1.8 million and it's still probably pretty accurate.
William Lynn:
So based on your knowledge of the property and the interest in the property by Sound Transit, do you
know whether or not Corliss would have undertaken the paving that it did in January of 2020, had it known
that the city was going to contend that required upgrading the stormwater system?
Mr. Davidson:
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I don't know. Say that again. Sorry.
William Lynn:
Absolutely. So given that the stormwater upgrade would require something in the neighborhood of $2
million, would Corliss have paved the site in January of 2020 if it had known that was going to be the
consequences?
Mr. Davidson:
Well. I mean, if we knew that we were going to have to tear out that concrete and then repave that and
do a whole new stormwater system then no. Because the paving that we did was cost $38,000. And that's
not including the cost of the concrete that we produce there onsite.
William Lynn:
Would the paving have been different if you were doing it in conjunction with an upgrade of the
stormwater system for the whole property?
Mr. Davidson:
Maybe a little bit. That's a question for probably a civil engineer. I can't imagine it would be that much
different but I could be wrong.
William Lynn:
I think that's all I have for Mr. Davidson. Thank you,
Phil Olbrechts:
Mr. Lell, any cross?
Mr. Lell:
Yes. Thank you, Mr. Examiner. Good morning, Mr. Davidson.
Mr. Davidson:
How's it going?
Mr. Lell:
Good. How are you today?
Mr. Davidson:
Pretty good.
Mr. Lell:
I have just a few questions for you on cross examination if I could. First of all, could I please ask that the
January 6th, 2020 Notice of Violation be put back on the screen by whoever's managing of that function.
It's both a city exhibit but I think it was previously put up as an appellate exhibit. Thank you. Could you
please expand on that. Thank you very much. And Mr. Davidson, going back to your testimony regarding
this document, which I assume that you're familiar with, is it your position that the city required paving
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of the Corliss site as a specific correctional or remedial measure under this document, this January 6th,
2020 NOV?
Mr. Davidson:
No, but they required long-term BMPs. And in my opinion, that paving is one of the only long-term BMPs
that would result in I think the outcome that we both want, which is no discharge to the city's stormwater
system.
Mr. Lell:
But if I understand your testimony correctly, you concur, do you not that this January 6th, 2020 Notice of
Violation does not specify paving by its terms. Correct?
Mr. Davidson:
I mean, the BMPs included do include some reference to paving. So I don't... if it's specifically that letter
then. Yes.
Mr. Lell:
Could you please clarify yes meaning what?
Mr. Davidson:
Yes, there is no... sorry what was the question again?
Mr. Lell:
I'm sorry [crosstalk 00:44:40].
Mr. Davidson:
[crosstalk 00:44:401 I'm answering it correctly.
Mr. Lell:
Do you concur that this January 6th, 2020 Notice of Violation did not specifically direct Corliss to install
paving?
Mr. Davidson:
Yes, but I stand with what I said before. It does require long-term BMPs and the best long-term BMP is
paving.
Mr. Lell:
Thank you. Did any staff member to your knowledge of the City of Federal Way specifically direct you
and/or Corliss to install paving in response to the January 6th, 2020 NOV?
Mr. Davidson:
Not that I'm aware of, but as we've kind of gone over we had told the city about it and never wants to the
city say, "Hey, that's not okay. You need to go get a permit."
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Mr. Lell:
Okay. Thank you. Prior to the January 6th, 2020 Notice of Violation, did Corliss ever inform any
governmental agency that Corliss was planning to pave part of the Corliss site in Federal Way?
Mr. Davidson:
Prior to what date?
Mr. Lell:
Prior to the January 6th, 2020 Noticed a Violation.
Mr. Davidson:
Yes. And as we had gone over before in 2018, we had notified the city and I believe DOE was also a part
of that communication.
Mr. Lell:
Thank you. And following that train of thought, can I please ask that appellant's exhibit two be shared on
the screen. And could I please ask that the text on that page be expanded to a much more readable size
if I could. Thank you. So could you please, Mr. Davidson refer to the second paragraph that's shown on
the screen right now and read that aloud for the record beginning with we recognize.
Mr. Davidson:
We recognize that our BMPs are helping but not solving the problem. In response, we are making plans
to pave the area on our property before the exit. The area will at a minimum extend 100 feet in from the
exit. We were planning on having the work done very soon. This should significantly decrease track out
by providing more cleanable surface on our property. We're working on the design and getting quotes to
have it paved. I will keep you updated as the plans come together and we nailed down the details.
Mr. Lell:
Thank you. So again, building on your prior direct examination testimony, Corliss was planning to perform
paving on the site well in advance of the January 6th, 2020, Notice of Violation. Correct?
Mr. Davidson:
Say that again. Sorry.
Mr. Lell:
Based on this 2018 document, this letter to Ms. McCray that we have on the screen right now. Do you
concur, do you agree that Corliss was planning to pave the site as of that date?
Mr. Davidson:
Yes.
Mr. Lell:
Thank you. Mr. Davidson, have you handled other permitting or regulatory matters on behalf of Corliss
within the City of Federal Way, apart from the matter that's at issue today?
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Mr. Davidson:
And what do you mean by that, what kind of permitting?
Mr. Lell:
[inaudible 00:48:55] Corliss ever gone through a land use or building or other regulatory permitting
process in the Federal Way prior to the matter that said issue here today?
Mr. Davidson:
Yes. The Corliss have. Have I been a project manager on that? No.
Mr. Lell:
But you're aware of other permitting matters, other regulatory permitting matters that Corliss has been
involved with in the city?
Mr. Davidson:
Sure. Yeah.
Mr. Lell:
Could you describe some of those please?
Mr. Davidson:
Well, let's see. We just had a pre -application meeting on a different piece of property with the city.
Actually we've had two in the last couple of years and then the real estate group I'm less than significantly
less involved, but they were working on permits for a carwash on the site.
Mr. Lell:
So is it safe to say that Corliss is familiar with the city's regulatory process generally as a result of those
prior permitting matters?
Mr. Davidson:
Yes, but we always rely on the city to tell us what we should or shouldn't be doing. And that...
Mr. Lell:
Thank you. Could you please turn or could I please have the screen share function depict the March 3rd,
2020 close-out letter. This is City's Exhibit Attachment four subsection or little I please. There's also a
document submitted by the appellant. Mr. Davidson, do you recall your testimony regarding this
document?
Mr. Davidson:
I don't remember exactly what I said. And I think I just said that this was a close-out letter and it's normal
for there to be a closeout letter after a notice of violation has been resolved. That's what I remember.
Mr. Lell:
Thank you. Are you familiar with this document though?
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Mr. Davidson:
Yes.
Mr. Lell:
Taking a look at the document now for the record, is there anything in this letter that specifically states
that Corliss can avoid permitting requirements for the paving that was installed in early 2020?
Mr. Davidson:
No, I don't think so.
Mr. Lell:
Thank you. And could I ask that the screen share move the document forward to the attachments that
were included with that please. And scroll down to the heading entitled Supplemental BMPs. Right there.
Perfect, thank you. Then Mr. Davidson, are you familiar with this aspect of the city's correspondence on
March 3rd, 2020?
Mr. Davidson:
Yeah.
Mr. Lell:
And when you previously referred in your direct examination testimony that the best management
practices acknowledged by the March 3rd close-out letter included paving, were you referring to these
Supplemental BMPs listed or depicted on the screen right now?
Mr. Davidson:
Those in and some others. In A4 it says, sweeped pave surfaces to collect all the materials. I mean, all of
these kinds of throughout are referring to actions that can only be done if there's pavement on the crown.
Mr. Lell:
Thank you for that clarification. Could you please read aloud the second bullet point under the
Supplemental BMPs heading.
Mr. Davidson:
Pave the mixing, production and/or pouring areas with the slope that drains to a central collection area.
Mr. Lell:
Is it your position that the paving that was installed in early 2020 was compliant with this Supplemental
BM P?
Mr. Davidson:
Yeah.
Mr. Lell:
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And specifically the reference to a "Slope that drains to a central collection area." Paving that was installed
on the Corliss property in early 2020 drain to a central collection area or facility?
Mr. Davidson:
Yeah, it does.
Mr. Lell:
Could you described that please.
Mr. Davidson:
Yeah. We've got a catch basins that collect the water off of that concrete and they go into our existing
stormwater volts. That's the very brief description of them.
Mr. Lell:
And do you recall during your communications or Corliss's communications with the city regarding the
January 6th, 2020 Notice of Violation, did Corliss ever inquire about the permitting requirements or
procedures with respect to paving of the site?
Mr. Davidson:
No, not that I'm aware of.
Mr. Lell:
And then finally, Mr. Davidson. Why is it that Corliss did not seek permits for this pavement that occurred
in early 2020?
Mr. Davidson:
Well, this track out issue was a long running issue and we had been talking about paving for a while but
this January 6th, 2020 Notice of Violation kind of just tipped the scales and ownership just finally decided,
"We need to spend some money to correct this issue, it's gone on too long and it's gotten bad."
Mr. Lell:
Okay. Thank you. No further questions.
Phil Olbrechts:
Okay. Any redirect Mr. Warren?
Mr. Warren:
No.
Phil Olbrechts:
Okay. And Mr. Lynn, you said that was your sole witness, is that correct?
Mr. Lynn:
That's it.
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Phil Olbrechts:
Okay. So that concludes the appellant's presentation of evidence at this point. Is that correct as well?
Mr. Lynn:
Yes.
Phil Olbrechts:
All right. Okay, Mr.Lellyour turn.
Mr.Lell
Thank you, Mr. Examiner, is it your request in preference that the city have provided an opening
statement at this point similar to witness.
Phil Olbrechts:
Okay, thank you. Go ahead.
Mr.Lell
I'll be very brief. This is a rather unusual appeal in that the parties apparently do not dispute that the
underlying condition or violation occurred in the first instance. So for purposes of the examiner's fact-
finding, I would assume that today's hearing and the aftermath of it will be a relatively simple affair
because that core aspect of the city's enforcement case, i.e that the pavement was installed without a
permit is essentially an undisputed by the parties. As the examiner is aware the point of contention
concerns whether or not the city is essentially prohibited from proceeding with its enforcement and
specificallythe December 18, 2020 Notice of Violation that's being challenged in this proceeding, byvirtue
of some prior action or inaction of the city that took place essentially a year ago in the context of a
separate violation.
Mr.Lell
And the city's position on that is emphatically that it is not prohibited. That is not somehow stopped or
prevented from exercising its defined regulatory function under the Federal Way revised code by anything
that has transpired before. As the examiner is aware the two main legal theories that have been advanced
here by Corliss as the appellant, are first that the city's current enforcement efforts are prevented by
FWRC 1.15.06.01, because it did not appeal or otherwise challenge or request a hearing to specifically
require the landowner to go through the permitting process for instalLynng the concrete back in 2020.
And there are several problems with that. And the first is the plain language of that code section, which
by its terms only requires an appeal for notices and orders which have each a defined term of art under
the city's enforcement framework.
Mr.Lell
There is no requirement that the city call out any particular type of corrective measure. In the first instance
under the code, there is no requirement that the city has to appeal on an informational document like a
close-out letter in the first instance. And there are certainly nothing in the municipal code or in state law
that would allow a landowner to circumvent an otherwise applicable code requirement simply because
of an informational document that the city issues is silent on the point. On that we believe the law's very
clear on that point. It would be a different issue and I think a very different posture and probably lead to
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a different outcome, if the city had issued a final formal appealable determination in March of last year
that specifically informed the appellant that it did not need to undergo the permitting process. But that's
not the situation that we have here today.
Mr.Lell
You will receive testimony from multiple city witnesses that explains in detail that a close-out letter is not
directive, it's not mandatory, it doesn't have any independent binding, controlLynng, legal effect
whatsoever. It's essentially a reference document that is prepared for the city's own file close-out
purposes. And just to essentially put a punctuation mark at the end of an enforcement procedure. It does
not have any regulatory effect in its own regard. So it falls clearly outside the bounds of FWRC 1.15.06.01
in the first instance. The second point that the appellant has made is that the city has proved prohibited
from enforcing under the December 18th, 2020 Notice of Violation being challenged here under principles
of LUPA Finality. And here I think that the issue is even more strongly in favor of the city under well -
established state law. LUPA Finality applies only to a Land Use Decision. Which is a defined term of art as
the examiner knows under the Land Use Petition Act RCW 36.70C.020.
Mr.Lell
It is the city's position that the March 3rd, 2020 close-out letter does not begin to satisfy the state law
definition of a land use decision. And there are several Washington cases that we'll be happy to cite in the
city's post hearing briefing that make that very clear but I'll list three of them here for the record. And I'm
sure the examiner is familiar with them and the precedent that they establish. All of them essentially
provide that a municipalities or agencies letter does not rise to the level of a Land Use Decision under the
Land Use Petition Act unless and until it uses words like decision and appeal and final. And there is nothing
like that in the March 3rd, 2020 close-out letter. I'll respectfully directly examiners attention to the
Harrington versus Spokane County Case, the Stientjie's Trust versus Thurston County and then I think most
specifically the WCHS Incorporated vs City of Lynnwood case.
Mr.Lell
All of those are binding controlLynng precedent that specifically addresses the question of whether an
agency's letter can rise to the level of a Land Use Decision under LUPA. They established the analytical
framework for this question and reviewed under that framework the city's March 3rd letter does not
constitute a Land Use Decision. More perspective, these are fairly straight forward issues of law and that
should be essentially resolved by reference to the plain language of the documents that have been
submitted into evidence today, and they're really only a few of them that are directly relevant, but we will
nevertheless proceed to provide testimony by various city witnesses that further provide context for the
various documents that have been introduced. And with that, I would like to call the city's first witness,
which is Cole Elliott.
Phil Olbrechts:
Mr. Elliot, are you there?
Elliott:
Yes, sir. I'm here.
Phil Olbrechts:
Raise your right hand. Do you swear or affirm to tell the truth, nothing but the truth in this proceeding?
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Elliott:
I do.
Phil Olbrechts:
Okay. And how do you spell your last name?
Elliott:
E-L-L-1-0-T-T.
Phil Olbrechts:
Perfect. Okay. All right, go ahead, Mr. Lell.
Mr. Lell:
Thank you. Good morning, Mr. Elliott.
Elliott:
Good morning, Zach.
Mr. Lell:
Could you please provide your job title, your official job title for the record.
Elliott:
I am the Development Services Manager.
Mr. Lell:
And how long have you held that position?
Elliott:
It will be five years in July.
Mr. Lell:
And what are your job duties as the manager?
Elliott:
My department is in charge of all private development, all stormwater enforcement during construction.
I also have the charge of all right away inspection. And right now I'm wearing a third hat as in charge of
the construction on Sound Transit.
Mr. Lell:
And how long have you been employed with the City of Federal Way?
Elliott:
It'll be five years in July.
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Mr. Lell:
And you have personal knowledge regarding the Corliss matter at issue today?
Elliott:
Yes, I do. On both sides.
Mr. Lell:
Could you describe the nature and extent of your involvement with the Corliss matter?
Elliott:
Initially, we received the land use permit for the wet plant that they wanted to install, which is reviewed
under the Development Services wing. So I have overall supervisory responsibility for the review and
comment.
Mr. Lell:
Are you personally familiar with the city exhibits that have been entered into evidence for today's
proceeding?
Elliott:
Yes, sir. I am.
Mr. Lell:
Mr. Elliott, could you please provide a general overview of the city's stormwater regulations both with
respect to their purpose and to their constituent parts?
Elliott:
Sure. The city's chapter 16 basically has two major components. There's the Surface Water Management
portion and then there's the Water Quality Management portion of it. As part of the overall, it provides
us the inspection standards to be used. It empowers public works to set up and enforce a stormwater
standard. It gives a minimum level of compliance and then it guides and advises for inspection and
maintenance for the private side. And then...
PART 2 OF 5 ENDS [01:06:04]
Mr. Elliot :
... and maintenance for the private side. And then the last thing is, it's supposed to prevent harmful spills
and discharges.
Mr. Lell:
Thank you. Are you familiar with the enforcement framework that the city of Federal Way has adopted
for purposes of administering and enforcing its stormwater regulations?
Mr. Elliot :
Yes, sir. I've become more aware of it, especially with this one.
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Mr. Lell:
Can you please provide a brief summary of that framework?
Mr. Elliot:
Basically, there's two main components that I see within the Federal Way code. There's the infractions,
which the construction side uses probably a little bit more, and that's under what, Federal Way, 1.15. And
then there is the notice of violation and correction, which is codified in another section of it.
Mr. Lell:
Great. Thank you. Is there a difference in your understanding, Mr. Elliot, between notices of violation and
orders on one hand versus a letter on the other hand?
Mr. Elliot :
Yes. Especially the closeout letter, the notice of violation is completely codifide as to how it has to be
assembled, and the process that you have to follow. The close-out letter is basically customer service, for
lack of a better term. [inaudible], used to get follow up questions from the private citizens. Are we done?
And so they created just a letter to say, okay, you've addressed this problem.
Mr. Lell:
Thank you. Turning now to the Corliss Property. Could you please describe that property as you
understand it? First of all, are you familiar with that property?
Mr. Elliot :
Yes, sir. I am.
Mr. Lell:
Could you please just briefly touch on the location, topography, physical condition and the improvements
on that site?
Mr. Elliot :
Sure. As far as location, it's pretty much at the north-west corner of three 52nd and Enchanted Parkway.
As far as topography, it is a relatively flat site. It does have a high ridge in the middle, which breaks the
stormwater runoff into two directions, more or less one third flows to the East from this high point. And
two thirds of the site seems to flow to the West. As far as actual site, it's mainly what we, when started
the review, understood the site to be was mainly gravel with some vegetation around the outside edge.
What we found later on was that it had been paved unbeknownst to us.
Mr. Lell:
And what's the current development state and or use of the Corliss property to your understanding.
Mr. Elliot :
Currently it is being used as a batch plant for dry mix concrete. It's mixed in the mixers as they leave.
Mr. Lell:
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Thank you. Are you aware of any current permit applications that are pending or recently approved for
the Corliss property?
Mr. Elliot :
Yeah, we have a land use that was granted in July for the installation of the wet mixed process. And then
we have a current building permit under review, which has stalled.
Mr. Lell:
And what was the nature of the land use permit?
Mr. Elliot :
The nature of the land use was for the installation of the wet mix plant, and based upon what they
submitted to us, both as plans and within their tier, we put in a condition as public works that the
stormwater system be installed.
Mr. Lell:
And when was that land use permit issued?
Mr. Elliot :
I believe it was July.
Mr. Lell:
And was there a timely appeal filed of that decision?
Mr. Elliot :
Yes. There's an appeal for the land use, which goes for 30 days after. So it went until sometime in August.
Mr. Lell:
Did any party actually appeal the city's land use decision when it was issued last year?
Mr. Elliot
No, sir.
Mr. Lell:
And I believe that you testified that the status of the building permit application is stalled, is that correct?
Mr. Elliot
Correct.
Mr. Lell:
And could you explain, for the record, why it is stalled?
Mr. Elliot:
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Basically our comments always involve, well, you have to install the stormwater system, because it was a
condition of the land use. The contention of apex was we're not putting in enough impervious surface
with this temporary plant to warrant the installation of a stormwater system.
Mr. Lell:
And building on that testimony, Mr. Elliott, could you please briefly describe the stormwater related
features and/or information that are relevant to both the land use permit and the building permit?
Mr. Elliot :
As I said before, yeah. There was a plan that was submitted under land use that showed a stormwater
vault, and within the tier there was discussion of the wet use plant, but the installation of a modular
wetland system and the underground vault.
Mr. Lell:
Thank you. Now, could I please ask that the screen share bring up again the December 18th, 2020, notice
of violation that is at issue in this proceeding. Thank you. Mr. Elliott, are you familiar with this document?
Mr. Elliot :
Yes, sir. I prepared it.
Mr. Lell:
And did you sign this document?
Mr. Elliot
Yes, I did.
Mr. Lell:
Could you please describe the circumstances leading up to the issuance of this document?
Mr. Elliot :
My senior engineering reviewer was going into city hall in early November and had swung by the site to
take a look and just continue to familiarize himself with the site. At which point he noticed that there was
a significant amount of paving that is not included on any of the plans that we had shown or ever called
out and appear to be new. So he went into the office and pulled up Google Earth and took a look at it.
And he could definitively state that it had been done after May of 2019, because that was the last fly over
that we had available under Google. And priorto him seeing it in November. Other than that, development
services had no idea that it was ever going to happen or had happened.
Mr. Lell:
And who was the individual, your reviewer that performed this initial investigative work and uncovered
the issue?
Mr. Elliot :
Kevin Peterson.
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Mr. Lell:
And did you have discussions with Mr. Peterson regarding this matter?
Mr. Elliot :
Yes, we did. We started, and matter of fact, he produced a letter back to Apex. At which point we called
out that they had done some increase in impervious surface without any notification. I believe it was mid
November that it went out. And then subsequent to that, we started a discussion with the internal legal,
Eric, about the issue.
Mr. Lell:
And going back to your discussions or communications with Corliss, following the city's determination that
this area had been paved. Could you describe those and both with respect to the content of those
communications, who was involved and then what was the result of those discussions or
communications?
Mr. Elliot :
Basically the reviews were headed towards issuance of the building permit. So we always try to resolve
what outstanding issues that we see. The main correspondence was with Apex Engineering and their
senior engineer over there. There is, I believe, copies always issued to Corliss also, that are sent out.
Mr. Lell:
Thank you. Now, turning to the preparation and issuance of the December 18th NOV, which staff
members participated along with you, if any, in preparing this document?
Mr. Elliot :
Theresa Thurlow, I leaned upon her. She had way more experience with the issuance of a notice of
violations. Scott Sprawl, the building official. He helped with some of the process, Eric, he of course always
provided review of everything. Kevin Peterson, as the senior reviewer. And then I always turn the letters
over to EJ Walsh to keep him in the loop and for his input.
Mr. Lell:
And what does EJ Walsh's title or position with the city?
Mr. Elliot :
Sorry. Public Works Director.
Mr. Lell:
And could you describe briefly how the December 18th NOV was issued or otherwise provided to Corliss?
Mr. Elliot :
It was sent electronically to Mr. Lamb. We also sent by certified mail to the plant to LLC address and to
Mr. Land's office. We posted it on site as the requirements.
Mr. Lell:
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And could you explain why the city exercised the formality of posting the notice on the Corliss Property
and sending it to Corliss via certified mail?
Mr. Elliot :
The posting on the property is a requirement under the code, the sending via email. Well, especially to
Mr. Lynn is more of a courtesy. We are required to mail to the owner, which would have been the plant
to LLC as it's listed under the assessors files.
Mr. Lell:
Thank you. And then by reference to this document, this December 18th, 2020, notice of violation that's
up on the screen, could you please explain that document to the city or to the hearing examiner? What
are the substantive code basis of violation that were cited in the document and why they were cited?
Mr. Elliot :
Certainly initially failure to meet the stormwater code, which is chapter 16. Failure to meet our adopted
standard. Then failure to meet the non -conforming stormwater code. Which is when you disturb a certain
amount of area, you make an improvement. And then I, erroneously, put in the development standards
for just right of away. And that should have actually been referred to as just Federal Way codes, because
it's on the private side. And those are basically failure to meet the land use requirements and then failure
to meet a building permit.
Mr. Lell:
And did your December 18th NOV designate any specific corrective measures that Corliss was required to
complete in response to the document?
Mr. Elliot :
They had, I believe it's 30 days under the code to either correct the measure, come in and sign an
agreement to correct the measures in a certain amount of time, or they could appeal this to the hearings
examiner.
Mr. Lell:
Thank you, Mr. Examiner. I have a few additional questions for Mr. Elliott, but they fall more in the nature
of rebuttal. If the examiner would agree, I'd be happy to ask those questions now rather than later, and it
might expedite the remainder of the hearing.
Mr. Examiner:
Sure. Unless Mr. Lynn objects, go ahead.
William Lynn:
No objection.
Mr. Examiner:
No objection. Okay.
Mr. Lell:
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Mr. Elliott, in your understanding, is the December 18th, 2020 notice of violation generally consistent in
how the city has enforced its stormwater regulations in the context of other violations and other
properties?
Mr. Elliot :
Yes, sir, it is
Mr. Lell:
As a general rule, does the city inform or direct code violators to perform specific remedial measures in
response to an NOV?
Mr. Elliot
No, sir.
Mr. Lell:
Why is that?
Mr. Elliot :
We just generally cannot do that. What we do is ultimately our responsibility is to stop the issue, how they
do it is immaterial to us so long as it meets the law.
Mr. Lell:
Did you listen to Mr. Davidson's testimony this morning earlier in the hearing?
Mr. Elliot
Yes, sir.
Mr. Lell:
I'd like to ask you a few questions about his testimony and hopefully get your response to it. First of all,
there was an assertion regarding the likely cost estimate of complying with the city's December 18th, 2020
notice of violation. Do you recall that testimony?
Mr. Elliot :
Yes, sir. I do.
Mr. Lell:
Do you agree with the testimony?
Mr. Elliot :
No, sir. I really don't.
Mr. Lell:
And why is that?
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Mr. Elliot:
Well, typically at this point, the consulting engineer will give you a high estimate to begin with. The
quickest way to get fired from a job is to low ball anything. That's from my experience in the consulting
world. Two, there are other means by which you can meet the code that weren't considered, which should
be significantly less expensive.
Mr. Lell:
And what would those other means potentially be?
Mr. Elliot :
One of them, and probably the least expensive of all the options is an open air pond. You can achieve both
water quality and detention if it's a wet pond. But that's their choice. Another option would be in lieu of
a vault installed chambers. You impact a greater area, but the cost of them is significantly less than a vault.
Mr. Lell:
And can I please askthat the screen share function redisplay a copy ofthe March 3rd, 2020 closeout letter.
Thank you. Mr. Elliott, are you familiar with this document?
Mr. Elliot :
Yes, sir.
Mr. Lell:
Could I please ask the screen share to scroll down to the attached list of BMPs and specifically the heading
entitled Supplemental BMPs, and specifically the second bullet point beginning with pave the mixing? Mr.
Elliott, are you familiar with this reference?
Mr. Elliot :
Yes, sir. I am.
Mr. Lell:
Did you listen to Mr. Davidson's testimony regarding this particular provision of the March 3rd letter?
Mr. Elliot :
Yes, sir. I did.
Mr. Lell:
And specifically, do you recall Mr. Davidson's testimony regarding whether the 2020 pavement that was
installed or concrete that was installed on the Corliss site drains to a central collection area? Do you recall
that testimony?
Mr. Elliot :
Yes, sir. I do.
Mr. Lell:
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Do you agree with Mr. Davidson's statement?
Mr. Elliot :
I can't say because he asserted that they have an onsite vault that I'm unaware of. If they've made any
connections to that vault, or actually have a vault, that's news to the city, or at least development services.
Let me say that. Swim may be aware of it.
Mr. Lell:
Thank you. In your time at the City of Federal Way, have you been aware of other permitting matters
involving Corliss?
Mr. Elliot :
Yes, sir. I've been involved in three.
Mr. Lell:
Could you please summarize those? And, just for the record, are those in addition to the land use permit
application that was issued that you testified about from the summer of -
Mr. Elliot :
No. There's two in addition to the current one.
Mr. Lell:
Could you please -
Mr. Elliot :
One was the submission for the carwash on this exact same site. We went through the pre-ap for it, and
they've held it in reserve. And then the other one was a pre -application for moving of this entire, no...
There's been three. I stand corrected. This entire site over near St. Francis hospital. And then most recently
a pre-ap for location of this concrete plant along PAC Highway at the other end of 352nd, essentially.
Mr. Lell:
And in the permitting situations that you just described, did Corliss reach out to the city to initiate those
proceedings?
Mr. Elliot :
Yes, sir. Always.
Mr. Lell:
So, to your understanding is Corliss generally familiar with the city's permitting requirements?
Mr. Elliot :
I believe so.
Mr. Lell:
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Good. Thank you. I have no further questions. Thank you, Mr. Elliot.
Mr. Examiner:
Well, [inaudible 01:26:46] generally should take a break every 90 minutes for about 10 minutes or so.
Does that work at this point for you all? Okay. Let's take a break till 10:45. We'll see you back at that time.
(silence)
Mr. Examiner:
Okay. Let's get back on record. It's 10:45 AM, February of 2021. We're in the Corliss Plant 2 appeal File
#20-004 for the City of Federal Way. Zach Lell just finished doing direct examination of Mr. Elliott from
the City of Federal Way, and now we go on to cross from Mr. Lynn.
William Lynn:
Thank you. Good morning, Mr. Elliott, who is Mr. EJ Walsh? What's his job at the city.
Mr. Elliot :
He is the public works director.
William Lynn:
And what's your relationship to him and the organization of the city?
Mr. Elliot :
Essentially, he's my boss.
William Lynn:
And then Theresa Thurlow, she's Head of Surface Water Management?
Mr. Elliot :
Correct.
William Lynn:
And what would be the relationship between either of them and Leah Meyer, who was the author of the
January NOV?
Mr. Elliot :
Theresa Thurlow would be Leah's direct manager, and EJ would be Theresa's manager.
William Lynn:
Awesome. That's good. Thank you. So, you identified exhibit seven, the closeout letter as a courtesy,
something you do to provide the applicant, make sure they know that the matter has come to a conclusion
and they shouldn't expect to hear from the city. Is that accurate?
Mr. Elliot :
Yes, sir.
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William Lynn:
And it is identified as a closeout letter that does sound kind of final to the applicant, isn't it? It sounds like
the end of the process.
Mr. Elliot :
It could. I don't know.
William Lynn:
Well, isn't it intended to. Isn't it intended to assure the applicant that this process has come to an end?
Mr. Elliot :
Actually, best person to ask would be Theresa. She created it.
William Lynn:
The closeout here letter specifically referred to the paving that has been completed. Does it not? This is
exhibit seven of... If it would be helpful to look at it. It says the driveway was paved as a long-term solution.
And then they talk about the inspection and that the staff confirmed that the paved driveway was
completed and that appropriate measures have been implemented. It's your understanding that the city
was aware of the paving when it issued the closeout letter? Correct?
Mr. Elliot :
Surface Water Management Department was yes. And their sole responsibility is the water quality and
Storm Water.
William Lynn:
And could you look at exhibit four, which was the end of the January NOV. You have that handy?
Mr. Examiner:
If I could interject briefly, the City can screen share that for Mr. Lynn's benefit just like the screenshot
worked for us.
William Lynn:
That's great. Could you just go to the end of that, the last page and look at the list of people who were
copied in that noticed. That includes Theresa Thurlow, correct? I think you indicated that it was Ms.
Meyer's boss.
Mr. Elliot :
Correct.
William Lynn:
And it also indicates that Mr. Walsh, your boss, and her boss received a copy, correct?
Mr. Elliot :
Correct.
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William Lynn:
Would you also, if we can, put up exhibit seven, which is the closeout letter, and look at the copies there.
Do those include the same people?
Mr. Elliot :
Yes, it does.
William Lynn:
So, when you say The City was not aware of the paving, that means you were not aware, but your boss
and the head of Surface Water Management were both aware. Were they not?
Mr. Elliot :
I would have to agree with that.
William Lynn:
And similarly, you indicated that The City was aware in January that Corliss was planning to pave the
property, but in fact, at least Ms. Meyer knew well before that, that paving was on the horizon for this
property, correct?
Mr. Elliot :
I would assume so. But then again, she doesn't have a permitting responsibility.
William Lynn:
But she's a City employee in the Surface Water Management Department, and she not only knew paving
was planned, but encouraged it, correct?
Mr. Elliot :
She submitted long-term BnBs, but didn't specifically say, "Pave it."
William Lynn:
But did you see the emails that were exhibits one and two, going back to 2018, where the city was advised
by Mr. Davidson, that paving was planned and she said, "Keep us posted." Isn't that indicate that she knew
about that and encouraged paving as a remedy here?
Mr. Elliot :
A remedy for the water quality? Yes. I'd have to agree.
William Lynn:
The carwash proposal came up a couple of times this morning. So the carwash is a new development plan
for a portion of the Corliss Property, correct?
Mr. Elliot :
This property? Correct.
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William Lynn:
And it's been submitted for a couple of years, right?
Mr. Elliot :
Yeah.
William Lynn:
And do you know it to be on hold because of the sound transit interest in acquiring the property? Have
you heard that?
Mr. Elliot :
I heard them state that, I don't know why they put it on hold.
William Lynn:
Are you familiar with the fact that Sound Transit has identified this site as one of the potential locations
for its sound transit light rail station?
Mr. Elliot :
Yes, but that hasn't been made.
William Lynn:
I'm sorry?
Mr. Elliot :
I said yes, but that decision hasn't been made.
William Lynn:
Has it been identified as a preferred location for the Sound Transit Station?
Mr. Elliot :
That I do not know. I've heard Corliss expand upon that, but I haven't heard that from Sound Transit or
any of the officials on the Sound Transit side.
William Lynn:
And you indicated that this land use decision that was made would have required a stormwater
improvements to the entire site?
Mr. Elliot :
No. What I said was they submitted a stormwater system and we made it a condition of the land use
because it was there.
William Lynn:
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And there was a land use approval for the carwash proposal together with the batch plan proposal,
correct?
Mr. Elliot :
No, sir. That was for the batch plant only.
William Lynn:
Didn't the city require that the plan be submitted, be the same one that incorporated the Storm Water
Management or at the Storm Water upgrades that were proposed for the carwash?
Mr. Elliot :
I've heard them state that, but it wasn't something that was required by development services.
William Lynn:
So it's not development services. Is it development services position that the batch plant change by itself
would require Storm Water upgrades?
Mr. Elliot :
No. What we're stating is because it was in the land use, it has to be required.
William Lynn:
So it's only because the applicant included it, not because it's a city requirement?
►X=Irem
At this point, correct?
William Lynn:
You indicated that Corliss knows how to get City input on permit requirements and you cited an example
of a couple of pre -application meetings that were held in regard to a relocation of the Corliss facility that
we're talking about here today.
Mr. Elliot :
Mm-hmm (affirmative).
William Lynn:
Now, those relocations are to address the potential that the site would be necessarily relocated because
of the acquisition by Sound Transit, correct?
Mr. Elliot :
I would be presuming to say that, but I [crosstalk 01:37:40] that.
William Lynn:
Yeah, you've been told that by Corliss.
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Mr. Elliot:
They've made that statement. Yes.
William Lynn:
Well, and you have any reason to disbelieve that?
Mr. Elliot
No.
William Lynn:
So, those circumstances are not like what was present in January of 2020 though, where Corliss was
actually already engaged with the City in a process where paving had been discussed previously and was
a known remedy for the problem that the City was raising. That's different from coming in with a brand
new application on a pre-ap, isn't it?
►71M1wow
Not according to the code.
William Lynn:
Well, you don't think that Corliss might have expected to be told about a permit requirement if the City is
faced with the pavement of the site through the enforcement process?
Mr. Elliot :
That would presume that Leah or Kevin, or even Theresa knew the requirement for the permitting.
William Lynn:
Well, wouldn't Mr. Walsh know the requirement for the permitting? He's your boss, right?
Mr. Elliot
Correct.
William Lynn:
And so when he got the NOV and the closeout letter...
PART 3 OF 5 ENDS [01:39:04]
Speaker 2:
NOV and the closeout letter advising that the paving had been completed, wouldn't that be some kind of
a trigger to alert everybody at the city to the need for permits and upgrades resulting from that?
Mr. Elliot :
Not necessarily by Mr. Walsh, he's given it as a courtesy copy just to keep him informed at the 10,000-
foot level of what's going on.
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Speaker 2:
So is this a process you would revise going forward to make sure applicants are aware that the remedy
that's been pointed out to them by the city might entail other requirements that could dramatically alter
the way to solve the problem?
Mr. Elliot :
I think that it will be a discussion in the future.
Speaker 2:
Yes, that's all I have. Thank you.
Phil Olbrechts:
Any redirect, Mr. Lell?
Mr. Lell:
Yes, very briefly Mr. Examiner. Thank you. Mr. Elliott, going back to your cross examination questioning
from Mr. Lynn, there was some discussion concerning the interplay between the Stormwater
Management division and the development services divisions at the city in relation to stormwater issues.
Do you recall that testimony?
Mr. Elliot :
Yes, sir.
Mr. Lell:
In your own words, could you please describe that interplay? How do those two departments typically
coordinate if at all in the context of enforcement and permitting?
Mr. Elliot :
With regard to enforcement now on the construction side of this, as we're having infrastructure built and
we coordinate much more as far as with their day to day responsibility for inspection and enforcement,
that's an area that until recently we weren't really involved in at all. We're busy enough trying to keep on
top of the new proposals without time to really look at what's existing around there.
Mr. Lell:
To your knowledge, Mr. Elliot, given that you've testified about your familiarity with the city's regulations
and its stormwater enforcement and permitting framework, is there a requirement to your knowledge
that would mandate that type of coordination?
Mr. Elliot :
No, sir. Thank you. The only coordination we have is during the handoff of new construction to the
stormwater group.
Mr. Lell:
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And again, going back to your familiarity with the city's regulations and storm water management and
enforcement framework, to your understanding who is ultimately responsible for ensuring compliance?
Is that the landowner or the city?
Mr. Elliot :
The land owner, sir.
Mr. Lell:
Thank you. And why would that be in your view?
Mr. Elliot :
Well, ultimately they have the responsibility for their own land, the city has the responsibility for the right
of way.
Mr. Lell:
Okay. Thank you. Is it possible to do a share with the city's code?
Phil Olbrechts:
Yeah. Let me see if I can pull that up.
Mr. Lell:
Thank you. Can I ask that FWRC 11501 be put on the screen? Thank you. Mr. Elliott, could you please read
aloud the third paragraph of that section?
Mr. Elliot :
It is also the expressed and specific purpose and intent of this chapter that no provisions nor any term
used in this chapter. I'm sorry. The rest of that Lynne is behind my people. So hang on. Oh, there we go.
Sorry, this chapter is not intended to impose any duty whatsoever upon the city or any of its officers or
employees.
Mr. Lell:
Mr. Elliot, does this statement that you just read bear at all on the testimony you just gave regarding the
ultimate responsibility for ensuring compliance under the city's code?
Mr. Elliot :
Yes, sir. That's the code of [inaudible 01:43:56].
Mr. Lell:
And how do you construe that interrelation?
Mr. Elliot :
That basically it is the land owner's responsibility to cover all required provisions of our law.
Mr. Lell:
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Thank you very much. I have no further questions for Mr. Elliott.
Phil Olbrechts:
Okay. Thank you, Mr. Elliot. Appreciate your testimony. All right, Mr. Lowell, next witness?
Mr. Lell:
Thank you. Our next witness is Leah Myhre.
Phil Olbrechts:
Okay. Ms. Myhre, is that M-Y-H-R-E, how do you spell your last name?
Leah Myhre:
Yes, that's correct.
Phil Olbrechts:
Okay. Needs to swear you in at this point. Raise your right hand. Do you swear or affirm to tell the truth?
Nothing but the truth in this proceeding?
Leah Myhre:
I do. Thank you. Excellent. All right, go ahead, Mr. Lowell.
Mr. Lell:
Thank you. Ms. Myhre, what's your official title with the city?
Leah Myhre:
Yes, my official title is NPDES permit program permit and water quality program coordinator, it's a
mouthful.
Mr. Lell:
And could you please describe your official job duties?
Leah Myhre:
Sure, absolutely. So in addition to the department of ecology issued a national pollutant discharge and
elimination system permit that I coordinate all the activities under, a large portion of my position is the
water quality program coordinator. And within the NPDES permit, we are required by the state to basically
have these code sections surrounding various discharges into the waterways. The entire job is about
protecting the watershed of the City of Federal Way in a variety of different mechanisms from operations
and maintenance of our public infrastructure to ensuring that private citizens do not discharge anything
into the storm water system. Our motto is only rain down the drain.
Mr. Lell:
Thank you. And how long have you held your current position with the City of Federal Way? Ms. Myhre,
can you hear me?
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Leah Myhre:
Yes.
Mr. Lell:
I think your screen may have frozen at least on my end. How long have you held your current position
with the city?
Leah Myhre:
Yes, my apologies, it looks like my internet is a little unstable. But yes. So my current position as the water
quality program coordinator, I have held since late November of 2018 as a water quality specialist.
Mr. Lell:
Okay.
Leah Myhre:
Sorry. Is that coming through?
Mr. Lell:
It is.
Phil Olbrechts:
Yeah, we didn't catch it at the response to the last question, your screen froze at that point Ms. Myhre,
so I think maybe you need to answer it again.
Leah Myhre:
Okay. Shoot. I apologize. I restarted my router this morning, but darn apartment buildings. Okay. So, all
right. So in my current position, I began in November of 2018 as the water quality program coordinator.
Prior to that, I held the position of water quality specialist, which is now held by Kevin Du since summer
of 2017.
Mr. Lell:
Thank you. And do you have personal knowledge regarding the Corliss matter that is at issue in this
appeal?
Leah Myhre:
I do.
Mr. Lell:
Okay. And are you familiar with the documents that have been entered into evidence in this proceeding?
Leah Myhre:
I am.
Mr. Lell:
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Okay. And did you listen to the testimony of Mr. Elliott?
Leah Myhre:
I did.
Mr. Lell:
And do you agree or disagree with Mr. Elliot's testimony?
Leah Myhre:
I agree, for the most part, I think there could be some further clarification on certain points, but yes, I do
agree.
Mr. Lell:
Thank you. Ms. Myhre, could you please provide a summary overview of the city's storm water regulations
as you understand them?
Leah Myhre:
Sure. So the city storm water regulations as Mr. Elliott put it so nicely is basically that we have chapter 16
of the Federal Way revised code that kind of on its face is all about our programs and activities,
enforcement, inspections, minimal requirements for property owners and business owners within the City
of Federal Way for ensuring that nothing enters our stormwater system and impacts negatively our
watershed.
Mr. Lell:
And did you recall the testimony provided by Mr. Elliott concerning the city's stormwater regulatory
enforcement framework?
Leah Myhre:
I do.
Mr. Lell:
And do you generally agree with that testimony?
Leah Myhre:
I do.
Mr. Lell:
Okay. And specifically with respect to Mr. Elliot's description regarding the difference in his view between
formal notices of violation and formal orders on one hand versus letters on the other hand, do you recall
that testimony?
Leah Myhre:
I do recall.
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Mr. Lell:
Okay. And do you agree with his statements?
Leah Myhre:
I absolutely agree.
Mr. Lell:
Is that one of the points that you would have liked to clarify further? Or do you believe that?
Leah Myhre:
Yeah, I agree with that, yes. Where as our notice of violation and notice in order to correct are within the
city code Chapter 1.15, the closeout letter, Theresa Thurlow and I, as my manager within the past few
years of my tenure at the City of Federal Way have been continuously working on our enforcement
program. And as Mr. Elliott noted, the closeout letter has been developed as a customer service piece of
and for our own record keeping for a single water quality violation, the one called out in the letter, just
the water quality violation that was at hand is closed out.
Mr. Lell:
So just so I understand your testimony, is it your position that the closeout letter isn't rooted in the code?
Did I understand you correctly?
Leah Myhre:
That's correct.
Mr. Lell:
Okay. And did I also understand you correctly in testifying that you and Ms. Thurlow essentially developed
a template for this closeout letter within the last few years? Is that correct?
Phil Olbrechts:
It's like we lost her again for a little bit. Let's give her a chance to come back out. Ms. Myhre We lost you
again if you could ask the question again?
Leah Myhre:
Yes. The answer to that question is yes.
Mr. Lell:
Okay. Thank you. And because I think I missed the part of the response. Could you please, again, answer
the question regarding your efforts in those of Ms. Thurlow in developing that template?
Leah Myhre:
Yes, absolutely. My apologies for my internet. And so, yes, over the past few years, my manager Theresa
Thurlow and I have worked to develop this closeout letter that began in late 2017 being a hallmark of our
program as a customer service kind of cap on the end of a water quality violation fees.
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Mr. Lell:
And is it your intent or understanding that a closeout letter would be independently appealable?
Leah Myhre:
It is my opinion that it is not independently appealable.
Phil Olbrechts:
And was the purpose of developing this closeout letter template to provide some type of formal direction
or mandate to the violator or the landowner or was it more informational?
Leah Myhre:
No, the letter is purely informational.
Mr. Lell:
In your time at federal way since this closeout letter template was apparently formulated back in 2017,
has any landowner ever attempted to appeal a closeout letter.
Leah Myhre:
No.
Mr. Lell:
Like to turn briefly to the Corliss property itself and ask you, is there any history that you're aware of
regarding prior stormwater violations or enforcement actions before the city's January 6, 2020 NOV?
Leah Myhre:
Yes.
Mr. Lell:
Can you write that history?
Leah Myhre:
Sure, absolutely. So when I came on board with the city and summer of 2017, 1 spent my first few months
really diving into our elicit discharge and detection and elimination program, so IDDE for short. And that's
specifically, I was a familiarizing my...
Phil Olbrechts:
Okay. It looks like we lost her again, just a little bit. Oh, we lost you again there, Ms. Myhre, start over.
Leah Myhre:
All right. My apologies. Thank you. Next break I will redo my router again. Do you have me?
Mr. Lell:
Yes.
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Leah Myhre:
Thank you. Okay, great. Sorry. I thought it might've froze again. Okay. So, yes. So beginning back in
summer of 2017, when I began with the city, I began familiarizing myself with illicit discharge sites that
had water quality violations in the past. Corliss was one of those sites that I familiarized with. And on
learning from my predecessor...
Phil Olbrechts:
Oh, we lost her again for the record.
Mr. Lell:
I'm wondering, and this is probably more of a question for some of them were a technologically adept
folks, but would it be possible for Ms. Myhre to simply dial in by her phone or use some sort of an
alternative mechanism just until she's able to reset her router during the next break?
Leah Myhre:
I should be able to call in. Let me try to fix my audio, I can do my audio differently. Give me one second, I
got to grab my work phone. All right. I will try that. Sorry. If you would give me a moment to do that.
Thank you.
Phil Olbrechts:
Yeah, go ahead. (silence)
Speaker 4:
Welcome. Enter your meeting ID followed by pound. You entered 25 [inaudible 01:55:58] please re-enter
your meeting [inaudible 01:56:03].
Leah Myhre:
Okay. So it shows that I'm on my...
Phil Olbrechts:
I can't hear anything right now. Your audio is not coming through.
Mr. Lell:
Ms. Myhre, Ms. Thurlow had I think possibly a helpful suggestion and I'll defer to some of the other people
that might have been a better expertise in the technological side of things. But apparently if the video
function is turned off at apparently consumes less bandwidth and your signal might be stronger. So if the
parties are agreeable, no objection by the city if Ms. Myhre simply testifies via audio?
Phil Olbrechts:
Mr. [inaudible 01:57:15] any problem with that?
Speaker 5:
No.
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Leah Myhre:
Okay, perfect. My apologies. Perhaps this is my formal petition to have the city give us that city subsidized
nicer internet now for work remote, you can keep that on the record now. All right. I will stop my video
and continue my testimony. Thank you.
Mr. Lell:
Thank you. Can you hear me [inaudible 01:57:33].
Leah Myhre:
Yes, I can. Can you hear me?
Mr. Lell:
Yeah. So the question again was just about a summary of the three January, 2020 storm water related
enforcement and or violation history of the Corliss property.
Leah Myhre:
Yes. So when I came on board in the summer of 2017, the Corliss site was one that was on a list from my
predecessors in the water quality section, which is just two of us as a site that had had previous water
quality violations. And just a couple of years, it was often cited for track out and myself and my
predecessor would had various a couple of notices of violations within 2017, 2018 and 2019 and 2020. So
it is an ongoing issue for track out at Corliss. So yes, I'm well aware of the site and the previous discharges
that it has had.
Mr. Lell:
And Ms. Myhre, going back to the definition of the term track out that was provided by Mr. Davidson
during his original testimony, do you recall that description? Is that an accurate description from your
perspective?
Leah Myhre:
Yes.
Mr. Lell:
Thank you. So I'd like to shift gears and turn now to the circumstances leading up to the city's issuance of
the January 6, 2020 notice of violation. First of all, how did the city become aware of the violation that led
to the issuance of that document?
Leah Myhre:
Yes, specifically. Let me go ahead and check my notes here. I believe this one, let's see. So in December
of 2019, we had some internal notice of track out, which just basically means there are other staff
members within the public works department or within the city that have undergone our elicit discharge
training and then notify water quality that they see track out on the road. And then if you'd like me to
continue to the point of noticing of violation, let me know?
Mr. Lell:
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Please. Thank you.
Leah Myhre:
Sure. Absolutely. So then upon receiving that notice of track out, of course, for water quality, we want to
act with on these things. So it doesn't impair our waterways. So that same day surface water staff
inspected Corliss and observed massive track out causing discharges of turbid water into our storm water
system. Samples were grabbed for turbidity, which were way above the threshold for what should be
leaving the property, that is when surface water staff notified ecology and issued the notice of violation.
Mr. Lell:
Thank you. And Ms. Myhre, I'll turn your attention to the photographs set forth in attachment 4 sub
section B of the city's exhibit list. I don't believe there is a need to screen share those, but I'd like to just
refer you to those. Are those photographic depictions provided at that exhibit reference? Do they depict
the track out and the other storm water investigation evidence that the city compiled in regard to the
violation of the time?
Leah Myhre:
Yes.
Mr. Lell:
Okay. Could you briefly describe the photographs just for the record and what they depict?
Leah Myhre:
Sure. I do not have the exhibit in front of me, isn't it? I've got a couple of windows open. I don't have it in
front of me, but let's see. Ah, here we go. Okay, great. Why is this so tiny? Okay, there we go. And that
mean all the technical difficulties today? Yes. So the image that was just pulled up on the screen. Yes.
These images are of track out. If you notice by the entry exit area you'll see all of the light colored area. I
mean, that represents track out right there. And then there are additional photos as well displaying the
track out and turbid discharges.
Mr. Lell:
And then the next photograph that's being displayed here is essentially this thing, it looks like the same
one. Is it possible to fast forward to the next document or the next photograph? Okay. Is that more of
same?
Leah Myhre:
That's more of the same track out. You can kind of faintly see, it's tough to capture in a picture with the
right lighting, but you can see the fines of the sediment and track out that have gone into the right of way.
Mr. Lell:
And the next photograph, please?
Leah Myhre:
And again, this is another view of those fines, the track out into the public right of way.
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Mr. Lell:
Next photograph. Is that more track out?
Leah Myhre:
Oh, that's more track out.
Mr. Lell:
And next, please. And is that more track out?
Leah Myhre:
That's more track out yes. Yes. And some of these kind of shots are showing perspective for the distance
that the track out.
Mr. Lell:
Okay. And then the final. Thank you. So with respect to your investigative efforts that culminated in the
issuance of the January 6th, 2020 NOV, could you describe the communications if any, that occurred
between city staff and Corliss leading up to the issuance of that enforcement document?
Leah Myhre:
Sure. Do you mean historically or with respect to that specific incident?
Mr. Lell:
With respect to that specific incident?
Leah Myhre:
Sure. Great. So once we received it, it was all on the same day that we received the internal staff notice
about the track out and then went out that same day to inspect. Let's see. Sorry, I'm going to take a pause
really quick as I review my notes. Okay. So that same day we did notify Corliss of our inspection
observations, that was December 4th, 2019. When we did receive that notice, did the inspection onsite,
took those photographs and then left a voicemail. And that I am suspecting because our water quality
specialists, Kevin Du handles the majority of our IDD-related communications and coordination that he
I'm assuming left a voicemail for Logan Davidson as he is our primary contact for these issues.
Mr. Lell:
Great. Thank you. Now, turning to the preparation and issuance of the January 6, 2020 NOV itself, which
staff members participated in the preparation of that document?
Leah Myhre:
Yes. That would be Kevin Du and I review those letters and then sign them.
Mr. Lell:
Okay. Did any other staff members participate in drafting that document?
Leah Myhre:
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Not in drafting, no.
Mr. Lell:
Okay. Could I ask that a copy of the January 6th, 2020 NOV be screen shared? This is again to attachment
4C of the city's exhibits? Thank you, Ms. Myhre, could you please briefly summarize and for the benefit of
the record walk everyone through this document?
Leah Myhre:
Sure, absolutely. So this is common practice for us when we have identified and done an inspection on a
site that has an illicit discharge or illicit connection which does constitute a water quality violation. We
begin with what's called a notice of water quality violation warning letter, this is the template you see in
front of you. Basically it calls out all of the specific information of the, when, where, why, who, how and
what of the discharge when it occurred? Where it occurred? What our surface water staff identified during
their inspection? And as you can see, delineated in under paragraph two, the one, two and three, those
are the observations by SWM staff based on that inspection. The next section basically goes further into
the violation by citing the relevant code sections, in this case, it would be the silt, sediment or gravel that
is not allowed to enter our public stormwater system.
Leah Myhre:
And then it follows up with corrective actions. And these again are basically letting them know that they
need to clean up the discharges that they have created in violation of our code, which is number one
immediately clean and remove sediment from the impacted catch basins, which are the storm drains in
the right of way to clean up the track out in the right of way. And then this is a customary piece at the end
is to implement both short and long-term BMPs, and that is something we include in all of our notice of
violation, warning letters as giving the violator a menu of options for the future so that we don't have to
deal with each other again, hopefully at least in a violation sense. And then it kind of goes through all of
the language that references our city code about this document and about our civil enforcement
procedures, and then basically signs it off if they have any further questions and gives a lot of contact
information.
Mr. Lell:
And Ms. Myhre in your experience with the city is the January 6th, 2020 NOV consistent in its content and
the procedure by which it was issued with other notices of violation that had been served to other
property owners in regard to other violations?
Leah Myhre:
Yes, absolutely.
Mr. Lell:
So could you please explain or describe what happened after issuance of this notice? What a
communications may have occurred between city staff and the landowner and its representatives?
Leah Myhre:
Yes, absolutely. So the issuance of the violation letter, we kind of continued doing drive-bys for staff and
noticing track out in mid January and just doing drive by inspections and but no formal communication
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from Corliss until January 20th. When we received the letter previously shown in this hearing the Corliss
response to the notice of water quality violation that we received on January 20th.
Mr. Lell:
Thank you.
Leah Myhre:
Oh, sorry. Go ahead.
Mr. Lell:
No, please.
Leah Myhre:
For sure. And in that letter they told us, or Logan told us, let me grab that on my screen here. So it was
basically acknowledging the receipt of the water quality violation warning letter, and said, since they
received the letter, they've been addressing the corrective actions, including cleaning up track out in the
right of way and paving a couple portions of their property already before they sent this letter. And then
they added a to be done is to continue street sweeping, clean out the impacted catch basins and pave an
additional section on there.
Mr. Lell:
Okay. Thank you. Now, could I please ask to have this screen share function depict the March 3rd, 2020
closeout letter, and that's a city exhibit attachment 41? Thank you. Ms. Myhre, are you familiar with this
document?
Leah Myhre:
I am.
Mr. Lell:
And which city staff members, if any, beside yourself participated in the preparation of this document?
Leah Myhre:
That would be our water quality specialist, Kevin Du.
Mr. Lell:
And is there any specific FWRC code authority cited in regard to this letter or in the letter?
Leah Myhre:
Not about the specific nature of this letter? No. Unlike in the notice of water policy violation, a warning
letter that we just saw previously that...
PART 4 OF 5 ENDS [02:12:04]
Leah Myhre:
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... deletion a warning letter that we just saw previously that cited chapter 1.15 of the federal waiver vice
code for the document's creation. This document is an informational letter.
Mr. Lell:
Okay. How was this letter distributed or circulated or sent? Was it posted on the cordless property?
Leah Myhre:
No. Closed out letters are customarily emailed and if we do not have an email for a responsible party or a
violator, we generally will send a hard copy in the mail, but nothing fancy. In generally it's just an email.
Mr. Lell:
Just to clarify, is it your testimony that this March 3rd closeout letter was not posted on the site and was
not sent by certified mail?
Leah Myhre:
That is correct.
Mr. Lell:
Thank you. Then turning back to the January 6th interview, and there's no need to screen -share that, but
did that document to your understanding direct Corliss to install pavement in order to correct a violation
that had been identified?
Leah Myhre:
to give prescriptive measures for our best management practices.
Mr. Lell:
I'm sorry. Ms. Marie. I believe that you cut out just a little bit in your response. Could you please restate
your answer?
Leah Myhre:
Sure. My apologies. So no, the notice of violation warning letter from January 6th did not specifically
instruct Corliss to implement any paving on their property.
Mr. Lell:
To your knowledge. Did any other written or verbal communication from the city ever direct Corliss to
install pavement?
Leah Myhre:
Never.
Mr. Lell:
Did the NOV of direct Corliss to install or otherwise implement any particular measures in order to correct
the violation?
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Leah Myhre:
No, we said clean it up and prevent it and however they choose to do that is up to them.
Mr. Lell:
And did any other written or verbal communication from the city to your knowledge ever direct Corliss to
install or otherwise implement any specific measures in order to address any condition on the property?
Leah Myhre:
No.
Mr. Lell:
As a matter of policy and practice, does the city typically direct landowners to install or otherwise
implement any specific measures in order to correct a violation?
Leah Myhre:
No. Quite the contrary, we make sure we never give any specific or prescriptive corrective actions,
because it could be a liability for us in case we tell them to clean it up a certain way and it doesn't get
cleaned up correctly, then they could say the city told us to do it this way and it could be a mess. So
basically as Mr. Elliot mentioned earlier, there's a violation, we tell them to correct it and how they do
that is up to them.
Mr. Lell:
Are you familiar with the notice of appeal that was filed in this case by Corliss?
Leah Myhre:
Yes, I am familiar.
Mr. Lell:
Can I ask that you screen -share briefly please.
Phil Olbrechts:
Is that a city exhibit? Is there a number for it or?
Mr. Lell:
I believe that this was the one of the first exhibits of the talent and I believe it was also in the... with one
of the core documents that was originally sent to the examiner. I'm happy to provide a reference if you'd
like. [crosstalk 02:16:02] 1C. Okay, great. Let get that up. All right. There we go.
Mr. Lell:
Thank you. Could I ask that the screen -share move forward to page four of the letter and specifically the
reference in attachment, or excuse me, exhibit A in paragraph number 12, maybe expand it. Thank you,
Ms. Marie, do you agree with this statement as it's quoted in paragraph 12 of the appellant's notice of
appeal, quote, the earlier paving was performed by the appellant solely to address the city's complaint
regarding track out material, end quote.
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Leah Myhre:
I do not agree with that.
Mr. Lell:
And why do you disagree with that?
Leah Myhre:
Well, I disagree with that. First off, because as we have heard testimony earlier this morning, the idea of
paving came from Corliss as historically as summer of 2018 in their letter to the department of ecology
about track out that it occurred in 2018. Instead, they were considering paving as a long-term solution at
the site and so solely to address the city's complaints. I disagree with that. It would be the city and ecology,
and not only this particular event, but from years prior.
Mr. Lell:
Thank you. And did you listen to Mr. Davidson testimony on this point earlier this morning during this
hearing?
Leah Myhre:
I did.
Mr. Lell:
And do you concur with Mr. Davidson's testimony and his explanation of why Corliss installed the paving?
Leah Myhre:
I do not agree with all points of it. I do understand that they installed the paving, as I believe he mentioned
that it was something that they were thinking of since 2018 and trying to figure out resources to be
allocated towards that and that they did it because I believe in his testimony, he mentioned that the
paving was in response to a perennial issue with water quality issues with both the city and department
of ecology.
Mr. Lell:
Thank you. Did the city's January 6th, 2020 Nov inform Corliss that Corliss could avoid city permitting
requirements in implementing its selected measures to correct the violation?
Leah Myhre:
Absolutely not.
Mr. Lell:
Did the city's January 6th, 2020 Nov address the issue of permitting at all?
Leah Myhre:
No. And that is not within the purview of the surface water management division.
Mr. Lell:
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Did the city's March 3rd, 2020 closeout letter inform Corliss that Corliss could avoid city permitting
requirements in implementing it's selected measures to correct the violation?
Leah Myhre:
Absolutely not.
Mr. Lell:
Did the city's March 3rd, 2020 closeout letter addressed the issue of permitting at all?
Leah Myhre:
No, it did not. As again, that is not within our purview.
Mr. Lell:
And to your knowledge, Ms. Marie did any other written or verbal communication from the city ever
inform Corliss that Corliss could avoid permitting requirements in implementing it's selected measures to
correct the violation?
Leah Myhre:
No.
Mr. Lell:
Are you the only city staff member with authority to issue in NOV's and to prepare close out letters?
Leah Myhre:
I am not.
Mr. Lell:
Who else is authorized to take those functions?
Leah Myhre:
Well, that could depend, depending on the division or the department in which you are speaking as a
chapter 1.15 of the city covers any department, however, within the surface water management division,
preparing and signing off on the documents, reviewing them would be myself or my manager, Theresa
TurLell.
Mr. Lell:
And is Ms. TurLell higher than you in the city's organizational structure?
Leah Myhre:
Yes.
Mr. Lell:
Okay. And could you please describe her relationship to you with respect to your respective of job titles
and functions?
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Leah Myhre:
Sure, absolutely.
Mr. Lell:
[crosstalk 02:20:57] lost you Ms. Marie. Do you think you can say that again, sorry.
Leah Myhre:
Sure. No worries. I apologize. So, Theresa TurLell is my direct manager and she is the manager of the
surface water management division. So I directly report to her.
Mr. Lell:
Thank you. And then a final couple of questions. If I could ask the screen -share function to show FWRC 1-
15-060, again, please.
Phil Olbrechts:
06, so you say.
Mr. Lell:
1-15-06, oh yes. Thank you.
Phil Olbrechts:
There you go.
Mr. Lell:
Thank you. Ms. Marie, I would draw your attention please to subsection 1 of FWRC 1-15-06-0. Are you
familiar with this provision of a city's code?
Leah Myhre:
Yes.
Mr. Lell:
In your understanding, Ms. Marie, is the city's March 3rd, 2020 closeout letter, A. Order to cease activity?
Leah Myhre:
No.
Mr. Lell:
Is it a notice and order?
Leah Myhre:
No.
Mr. Lell:
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Okay. Could you please turn to the third sentence of FWRC 1-15-060. Beginning with the city may also
request.
Leah Myhre:
Yes. Would you like me to read that?
Mr. Lell:
Yes please.
Leah Myhre:
Okay. The city may also request a hearing before the hearing examiner to assess costs, modify previous
orders or to enter other orders as needed. Would you like me to continue?
Mr. Lell:
No. Thank you, that's sufficient. In your understanding was any other order needed from the hearing
examiner in order to close out the March 3rd, 2020, or in order to issue the March 3rd, 2020 closeout
letter?
Leah Myhre:
No.
Mr. Lell:
As a matter of practice and policy, does the city staff request a hearing before the hearing examiner in
order to inform code violators that they need to satisfy applicable permitting requirements?
Leah Myhre:
No. And on the basis that would be extremely time consuming and outside of the... database.
Mr. Lell:
I'm sorry. I think you cut out there again. Could you please restate that last answer?
Leah Myhre:
Sure. So the answer is no, it is not necessary to go before a hearing examiner for any of those
aforementioned examples in your question as that is just... it would not pass the reasonable person test
down on the scale of a professional organization, such as the city.
Mr. Lell:
Okay. Final question in your familiarity and understanding of the city's enforcement framework, is it
common practice for the surface water management division to ensure that business owners obtain a
permit prior to modifying their property?
Leah Myhre:
No.
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Mr. Lell:
Why is that?
Leah Myhre:
It's a completely different division. I have never touched a permit in my entire tenure with the city, and
it's not my burden to ensure that they have permits to do the work on their property. Is that is their
burden to ensure that they are following civil codes. I nearly and the water quality coordinator. I care if
there is a discharge and if they've cleaned it up.
Mr. Lell:
Thank you. No further questions for Ms. Marie.
Phil Olbrechts:
Okay, Mr. Lynn.
William Lynn:
Good morning. I think we're still in the morning.
Leah Myhre:
Good morning, yes for a little while.
William Lynn:
So you talked about different departments of the city and who issues permits and who doesn't. All of
these publications, the orders, the permit requirements, et cetera, come out on the same letterhead don't
they? City of federal way letterhead.
Leah Myhre:
Sure. As does a variety of publications from the city ranging from any number of things.
William Lynn:
And they don't come out with a organizational chart explaining who does what or what the limits are, do
they?
Leah Myhre:
No.
William Lynn:
I'm going to talk about the section that Mr. Lell, just ask you some questions about 1.15.06.1. The sentence
that says the city may also request a hearing before the hearing examiner to assess costs, modify previous
orders or to enter into... I'm sorry, or to enter other orders as needed. You said that the city does not do
that as a practice and it wouldn't be a reasonable to expect them to do that. Correct?
Leah Myhre:
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Well, this isn't where I might've cut out. So it's not a reasonable practice to consider that we would do
this for every single water quality violation that comes across my table. We would not have a hearing
before the hearing examiner before every violation, that would be 15 a year.
William Lynn:
Okay. The city could do it under this authority though.
Leah Myhre:
I don't think it would fit for closeout letters, which is I believe Mr. Lell was specifically asking me about.
William Lynn:
I was going to ask you about NOVs. Could the city ask for a further order relating to an NOV?
Leah Myhre:
Sure. Under this, yes
William Lynn:
Okay. And so for example, if -
Leah Myhre:
Oh, no. I apologize, actually, so it would have to be a notice in order to correct, which is a layer above the
notice of violation warning letter.
William Lynn:
So you're saying this sentence that Mr.Lell asked you about just doesn't apply at all.
Leah Myhre:
It doesn't apply.
William Lynn:
Okay. What happens if an applicant says, "Okay, I'm going to tear out a wetland and building a new settling
pond there for my siltation." What would you do?
Leah Myhre:
Well, that would be an issue if there was no discharge that had happened and no work within the wetland,
that's not within my purview. My purview is actual discharges to the stormwater system or watch wetland
areas. So, that would be something, if I heard about someone who was going to tear out a wetland, I
would give that over to development services.
William Lynn:
Okay. You'd notify somebody in the city to make sure that the person complied with other applicable city
requirements, correct?
Leah Myhre:
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Well, as far as enforcement measures, I would hand it over to code compliance and development services.
William Lynn:
But you would take some step, whether it was in guiding the applicant or in guiding the city, you would
take some steps to make sure that the city's rules were met. Correct?
Leah Myhre:
Sure. As far as forwarding an email. Sure.
William Lynn:
Okay. Now, in this case, do you agree whether or not you encouraged or didn't encourage, do you agree
that paving the site is an appropriate long-term mid BMP for this facility?
Leah Myhre:
I do, but it was never explicitly.
William Lynn:
I'm not asking you or anything else you just have to listen to the questions. And I know you might like to
say more, but my question was simple. Is it a recognized long-term BMP for this site?
Leah Myhre:
For this type of site? Yes.
William Lynn:
Yes. And it's not only is it a BMP in and of itself, doesn't it also facilitate the utilization of other standard
BM Ps?
Leah Myhre:
I'm not sure what you're asking.
William Lynn:
Doesn't it facilitate cleaning, vacuuming, street sweeping isn't all of those easier or possible if there's a
paved site versus an unpaved site?
Leah Myhre:
According to the King County best management practices, I would assume so. However, I have no
knowledge or contractor on an industrial site such as that.
William Lynn:
Well, is it your experience and enforcing the city's codes that you can vacuum or street sweep a gravel
site?
Leah Myhre:
No, it would be easier on paved surfaces than gravel.
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William Lynn:
That was the question. So, and you were aware going back to at least 2018, that whoever it was trying to
satisfy Corliss was planning to pave this site, correct?
Leah Myhre:
Sure. It could have been in five years, 10 years or 20 years, but in that I knew they had a future plan.
William Lynn:
Okay. And do you encourage that? Did you not?
Leah Myhre:
I wouldn't use the word encouraged. I would say reflected back to them that, that was their plan through
confirming an acknowledgement.
William Lynn:
And asked to be kept apprised of their progress?
Leah Myhre:
Of course, since they're a constant violator to us, I wanted to know if they had done anything that could
potentially address future water quality violations, since we deal with them several times a year.
William Lynn:
And you thought it would be helpful?
Leah Myhre:
Well, that's subjective. In my personal opinion or my professional?
William Lynn:
Well, did you or didn't you? Didn't you think it would be helpful if they paved the site?
Leah Myhre:
Sure. As an water quality professional, sure. It was one of the many of options.
William Lynn:
Okay. Well, what other long-term options are there that are as effective as paving the site?
Leah Myhre:
I'm not an infrastructure or planning professional. So I could not speak to that specifically.
William Lynn:
And your experience doesn't allow you to draw a conclusion and give an answer to that question?
Leah Myhre:
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It does not.
William Lynn:
Okay. Nonetheless, when they did pave the site, the city thanked them on several occasions, correct?
Leah Myhre:
Is that they had already told us in the January 20th response letter that they had undertaken, yes. It was
obviously not to my knowledge that they had done it, unpermitted.
William Lynn:
I'm not asking you what you knew about ahead of time. All I'm asking is once Mr. Du, went out and
inspected the property, and once you were aware that they had paved the property, you thank them. You
didn't just draw this to a close you thank them.
Leah Myhre:
Well, I did not thank them specifically for paving. I thanked them for complying with corrective short and
long-term best management practices on their site.
William Lynn:
Okay. We can go back and look at what the paperwork's said (silent). And you provided copies of your
letters to Mr. Walsh?
Leah Myhre:
Yes. That's customary with every single enforcement document.
William Lynn:
Well, isn't the point of that to make sure people are broadly aware of what's going on in the city so that
he as the manager, a department head can ensure that activities are on the up and up and following city
requirements?
Leah Myhre:
Sure. Broadly aware, I would say as a very tangential awareness.
William Lynn:
Okay. So let's talk about the close out of letter that you said was a development that you and Ms. TurLell
came up with, was the purpose of that to inform an applicant so that it knew the matter had been brought
to a conclusion as far as you were concerned?
Leah Myhre:
So I'm going to reject the term applicant. In this case, we would say responsible party or violator as this
would be a closeout for a specific water quality violation case. So yes, just an informational letter to give
a cap on the case and say, you don't have to call us anymore worrying if you have an outstanding case,
which we were getting a lot of calls from previous violators asking us whether or not that had occurred.
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And so we instituted this as a formal customer service mechanism for both our internal records, but more
so for past violators to ensure.
William Lynn:
So the applicant is basicallytold you can rest assured this one's done, right? Isn't that a fair way to describe
it?
Leah Myhre:
With regards to the water quality violation, yes. We need the water quality violation.
William Lynn:
Yeah. But in this case, the water quality violation that you're notifying the applicant about and saying it
had been brought to a conclusion was brought to a conclusion because of the paving, correct?
Leah Myhre:
No, it was brought to a conclusion -
William Lynn:
[crosstalk 02:34:53] read you the letter or maybe we could -
Leah Myhre:
May I provide some clarification please? Sure, so the letter is recognizing that the corrective actions of
cleaning the impacted storm drains the catch basins, cleaning the right of way and implementing long-
term BMPs. It is affirming that Corliss themselves said that they completed those and we are reflecting
that affirmation back to them.
William Lynn:
Well, and the city didn't just take Corlisses word and went out there and inspected, correct?
Leah Myhre:
Yes. Our water quality surface water staff member inspected.
William Lynn:
Well, that's your letter, that your signature there that's at the bottom of the letter, right?
Leah Myhre:
Yes.
William Lynn:
And you're saying that the site was paved 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 onsite storm water conveyance system. My question is just doesn't the applicant read that to me,
that it did the right thing and resolve the problem to the city's satisfaction?
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Leah Myhre:
With regards to the water quality of violation of track out, yes. On December 4th, 2020.
William Lynn:
And while you said you would notify the city permitting authorities, if there had been a violation of the
wetland code, or you apparently didn't think it was necessary to advise the city permitting authorities,
that there was something that would have triggered the need for a city permit and a stormwater system
upgrade.
Leah Myhre:
No, that's not under my purview. I have no knowledge of any of the plan review codes or development
services codes. That's not within my purview and in my own position, I do not check up with everyone
who has told me that they've done work on their property, that they actually did it. That would not pass
a reasonable person test for my position.
William Lynn:
But you were satisfied that the work was done. That's not in dispute, is there? There's no dispute here
that the work was done to the city's satisfaction is there?
Leah Myhre:
To the water quality sections satisfaction, within the surface water management division.
William Lynn:
The letter, doesn't say that does it? It doesn't say I'm happy, but nobody else at the city is happy and it
might be other permit requirements. There might be other things you have to do. I'm happy though. It
doesn't say that does it?
Leah Myhre:
I'm not in charge of ensuring that they follow every city code. We have a lot of departments in the city to
ensure all of those are taken care of.
William Lynn:
I think that's all I have. Thank you.
Leah Myhre:
Thank you.
Phil Olbrechts:
Okay. Mr. Lell, redirect.
Mr. Lell:
Very briefly, Mr. Examiner. Thank you. Ms. Marie, you testified that the city in its communications never
informed Corliss that the pavement could be installed without compliance with applicable permitting
requirements, correct?
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Leah Myhre:
That's correct.
Mr. Lell:
Are you aware of any provision of the city's regulations that would excuse permitting requirements under
these circumstances?
William Lynn:
I'm going to object to the question she's just testifying. She hardly knows anything about permitting. So I
don't think she should be asked or allowed to answer this question.
Phil Olbrechts:
Repeat the question, Mr. Lell.
Mr. Lell:
I'm asking if Ms. Marie is aware of any provision of the city's regulations that would excuse permitting
requirements or compliance with permitting requirements under the circumstances of this case?
Leah Myhre:
There are none.
Phil Olbrechts:
Yeah. I'll overrule, I think... Yeah. Because it's a question pertaining to the NOV, so. Okay. Yeah.
Mr. Lell:
And then finally, could you please screen -share FWRC 1-15-060 again.
Phil Olbrechts:
Okay. (silence) Let's see. I'm trying to find it here. Oh, here it is. Okay. (silence)
Mr. Lell:
Ms. Marie, I draw your attention again, please. To the third sentence of subsection one of this code
provision beginning with the city may also request a hearing. Do you see that text?
Leah Myhre:
I do.
Mr. Lell:
Okay. In your view, was there a need for a hearing in order to assess costs when the city issued it's March
3rd, 2020, closeout letter?
Leah Myhre:
No, there was absolutely no need for that.
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Mr. Lell:
And in your view, at that point when the city issued its March 3rd, 2020, closeout letter, was there a need
to modify any previous order?
Leah Myhre:
No.
Mr. Lell:
And I believe that you've touched on this, but once more for the record, at the time the city issued its
March 3rd, 2020, closeout letter, was there a need in your opinion to enter any other order or have the
hearing examiner enter any other order at that point?
Leah Myhre:
No.
Mr. Lell:
Thank you. No further questions.
Leah Myhre:
Thank you.
Phil Olbrechts:
Thank you, Ms. Marie. Were very helpful testimony at this point let's figure out whether we should take
a lunch break or barrel through. How much more time do you think Mr. Lell, you need to complete your
presentation?
Mr. Lell:
I would estimate approximately 45 minutes to an hour. I would assume that after Ms. TurLell, the volume
of direct testimony at least from the city of witnesses will be significantly less than what you've heard
before.
Phil Olbrechts:
Okay. All right. And Mr. Lynn, did you have any rebuttal witnesses you planned on presenting or?
William Lynn:
Not so far.
Phil Olbrechts:
Okay. And then I'm closing comments and we talked about briefing. Did the parties would make closing
verbal comments today as well, or?
Mr. Lell:
That would be my preference, Mr. Examiner.
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Phil Olbrechts:
Okay. So what do you think, should we take that an hour lunch break then and come back and finish up?
It sounds like we still have a bit further [inaudible 02:41:36], Mr. Lynn are you okay with that?
William Lynn:
That's fine.
Mr. Lell:
Sure.
Phil Olbrechts:
Okay. Let's take a break adjourn then until 1:00 PM today. We'll see you then.
Mr. Lell:
Thank you.
Phil Olbrechts:
All right. See you soon.
Leah Myhre:
The question. Do we log out and then log back in?
Phil Olbrechts:
That's what I normally do. Let me see is someone from the host. Can the host tell us and answer to that
question. Ms. Covar. Yeah, I would just, yeah, I think that works. It's worked for me in the past and just go
back to your Lynnk and we can get right back in.
Leah Myhre:
Thank you.
Phil Olbrechts:
All right...
PART 5 OF 5 ENDS [02:42:53]
Phil Olbrechts:
All right.
Female:
And I need [inaudible 00:00:03].
Phil Olbrechts:
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Back on the record. It's 1:00 PM, February of 2021. I'm Phil Olbrechts, hearing examiner. We are still in
the Corliss Plant to appeal notice of violation X-20-004. The city is still presenting its side of the case, and
they're ready to present another witness, I believe, Mr. [Lal 00:00:23]?
Mr. Lell:
Thank you, Mr. Examiner. The city's next witness will be Theresa Thurlow.
Phil Olbrechts:
Okay. Miss Thurlow, are you there? All right.
Theresa Thurlow
I am.
Phil Olbrechts:
And that is T-H-U-R-L-O-W?
Theresa Thurlow :
Yes. T-H-U-R-L-O-W.
Phil Olbrechts:
Okay, let me swear you in. Do you swear or affirm to tell the truth, nothing but the truth in this
proceeding?
Theresa Thurlow
Yes.
Phil Olbrechts:
Okay, great. All right, Mr. [Lal 00:00:481, go ahead.
Mr. Lell:
Thank you. Miss Thurlow, what's your official title with the City of Federal Way?
Theresa Thurlow :
Surface water division manager.
Mr. Lell:
How long have you held that position?
Theresa Thurlow :
Just shy of six years.
Mr. Lell:
How long have you been employed by the city?
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Theresa Thurlow :
Just shy of six years.
Mr. Lell:
Could you please describe your job duties for the city?
Theresa Thurlow :
I have overall responsibility for the surface water management program, and that is the NPDES permit
compliance, asset management, including operation and maintenance, flood reduction and prevention,
water quality protection and improvement, and habitat conservation.
Mr. Lell:
Is Miss Myhre one of your direct reports?
Theresa Thurlow
Yes.
Mr. Lell:
Do you have a personal knowledge of the Corliss enforcement matter that's an issue in this proceeding?
Theresa Thurlow
Yes.
Mr. Lell:
And do you have personal familiarity with the documents that have been entered into the record for this
proceeding?
Theresa Thurlow
Yes.
Mr. Lell:
Did you listen to the testimony of Miss Myhre and Mister Elliott?
Theresa Thurlow
Yes.
Mr. Lell:
Is there any aspect of the testimony of those two individuals with which you disagree?
Theresa Thurlow:
No.
Mr. Lell:
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Thank you. Could you, please, provide a brief overview of the enforcement framework for the city of
stormwater regulations, and feel free to just chime in if you think it would be more expedient to bootstrap
off of what Miss Myhre testified to.
Theresa Thurlow:
Sure. Under our NPDES permit, we are required to have enforcement code as part of our, keeping the
water clean, only rain down the drain. And so, we have this IDDE Investigation and Enforcement Program.
And under that program, we have escalating enforcement. The first would be somebody reports violation.
We go out and investigate. We say, yes, there's a water quality violation. Who's the responsible party?
We identify the responsible party. We send them a water quality violation warning letter. And this letter
says, basically, "Hey, you're polluting the water. This is what happened. And this is what you need to do
to correct it." And then, they have, I think, it's 15 days, off the top of my head, it seems like it's 15 days,
to correct that. If they don't correct it within that timeframe, then, our enforcement action escalates, and
it becomes a water quality violation in order to correct.
Theresa Thurlow:
And at that time, they have a certain amount of time to correct the water quality violations. And if they
don't, we will start assessing fines on them for not correcting this issue. So, our approach as a city is
education. That's why our first one is a warning letter saying, "Hey, this happened. We need you to correct
it," and then, as I said, escalating from there.
Mr. Lell:
Okay. Thank you. Is there a difference in your understanding of the city's enforcement structure between
NOVs and orders on one hand, versus letters on the other hand?
Theresa Thurlow:
Yes. Our closeout letter, for instance, isn't required by any of our code. It came about because we were
all relatively new to the city. Leah's predecessor, myself, Kevin, and we would look at historic notice of
violations for water quality and the question of whether it was taken care of, and the case closed out was
left unanswered. We had no documents, nothing to tell us what had been done on this particular site. So,
we decided that we needed a mechanism for those people who come after us to understand what was
done on the site, and that we closed that particular water quality violation. And I also thought it would be
a courtesy to let the responsible party know that we had closed out that particular case.
Mr. Lell:
Just so I'm clear, Miss Thurlow, if I understood your testimony correctly, the closeout letter template is
more for the city's own reference, is that an accurate statement, or characterization...
Theresa Thurlow:
Yes.
Mr. Lell:
of your testimony?
Theresa Thurlow:
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Yes.
Mr. Lell:
Okay. Thank you. Do you recall Miss Myhre's testimony concerning the water quality enforcement history
of the Corliss site?
Theresa Thurlow:
Yes.
Mr. Lell:
Do you agree with that testimony?
Theresa Thurlow:
I would just add, she started at 2018, but actually, my recollection is we began noticing enough track -out
to assess a water quality violation early in 2016, and that's a year after I came on board. So, it didn't all
start for track -out in 2018. It went further back.
Mr. Lell:
So, there's a history of stormwater violations on the Corliss site dating back, at least, to 2016, is that
correct?
Theresa Thurlow:
Yes.
Mr. Lell:
Thank you. And do you recall Miss Myhre's testimony regarding the circumstances leading up to the city's
issuance of the January 6th, 2020 NOV?
Theresa Thurlow:
Yes.
Mr. Lell:
Do you agree with that testimony?
Theresa Thurlow:
Yes.
Mr. Lell:
Is there any aspect of that testimony that you disagree with?
Theresa Thurlow:
No.
Mr. Lell:
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Anything that you would like to add or supplement Miss Myhre's comments with?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Now, turning to the March 3rd, 2020 closeout letter, could you, please, summarize the city's
investigative and/or inspection efforts that led up to the sending of that document?
Theresa Thurlow:
I'm sorry, could you restate the question? I'm not sure what you're asking me.
Mr. Lell:
Certainly. Turning your attention to the March 3rd, 2020 closeout letter...
Theresa Thurlow:
Okay.
Mr. Lell:
... could you please describe, in your own words, whatever investigative and/or inspection efforts that the
city may have undertaken leading up to the appending and preparation of that letter?
Theresa Thurlow:
Sure. I'm not sure exactly off the top of my head where we got the report that there had been track -out,
but we received a report there was track -out. Kevin went out to investigate the... Yes, there was track -
out. Our procedure... We have a flowchart, actually, that says do X, Y, Z at each point. Our procedure at
that point is to take pictures, which he did, and identify responsible party, fairly obvious, and then, come
back to the office and pull up our template and fill the letter out. Inform Leah and myself on what was
happening. Open up a case in [Vieworks 00:08:15] if one hadn't already been opened. And then, once
Leah confirmed that the circumstances in the letter was accurate, she'd sign it and we would send it. Or
we did send it, actually, I should say.
Mr. Lell:
Thank you. And...
Theresa Thurlow:
And... Oh...
Mr. Lell:
... were you involved at all in the drafting of that document?
Theresa Thurlow:
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Only in reviewing the letter. I did know that we had frequent track -out problems, and I'm pretty sure I
would have asked, and I'm pretty sure I did ask, at this point, if she had notified Ecology, because we were
trying to get Ecology to participate, and also, help us with this continual problem.
Mr. Lell:
Okay. Following the issuance of that document, what were the next steps? What happened, in your
recollection?
Theresa Thurlow:
As far as I remember, Kevin came to me and said, "Hey, they paved the site. They cleaned out the catch
basins, and they swept the street." I would've said that's great, and closed out. And then, I would have
asked him if he had the closeout letter ready.
Mr. Lell:
Okay. Did you participate in the preparation of the March 3rd closeout letter itself?
Theresa Thurlow:
I would have reviewed it.
Mr. Lell:
Okay. Do you agree with Miss Myhre's summary or characterization of how that March 3rd, 2020 letter
was issued, was sent?
Theresa Thurlow:
Yes, that's correct. We only send by certified mail the actual notice of violation because we have to make
sure that the responsible party is aware of the violation.
Mr. Lell:
Okay. Did the January 6th 2020 NOV direct Corliss to install pavement in order to correct the violation on
its property?
Theresa Thurlow:
No.
Mr. Lell:
Okay. To your knowledge, did any other written or verbal communication from the city ever direct Corliss
to install pavement?
Theresa Thurlow:
fo
Mr. Lell:
Did the city's NOV ever direct Corliss to install, or otherwise, implement any particular specific measures
in order to correct the violation?
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Theresa Thurlow:
No particular measures. No.
Mr. Lell:
To your knowledge, did any other written or verbal communications from the city ever direct Corliss to
install, or otherwise, implement any specific measures in order to correct the violation?
Theresa Thurlow:
No. We're very careful not to direct the corrective BMP.
Mr. Lell:
Okay. And can I ask why that is? Why is the city so careful not to direct the particular BMP?
Theresa Thurlow:
That makes us liable for the results of the BMP. And if it doesn't work, then, we would be on the hook for,
basically, probably the next measures. It's also, we have no idea what their resources are. So obviously,
we would not want to tell them do this, and it's beyond their resources. And they, as a property owner,
are basically, in the end, responsible for everything that happens on their property.
Mr. Lell:
Okay. Thank you. And is the approach taken in the January 6th, 2020 NOV with this non-specific directive
not telling the land owner what particular BMPs to select, is that consistent with the city's enforcement
approach generally?
Theresa Thurlow:
Yes. We always approach our original notice of violations as an educational opportunity, and we include
these pollution prevention measures that are publications from King County on, these are some BMPs
that have been shown to work, and they're included for your reference. In fact, I think we say that in the
letter, these are included for your reference and convenience.
Mr. Lell:
Thank you. Do you recall the testimony by Mr. Davidson to the effect that Corliss installed the pavement
in 2020 in response to the city's January 6th, 2020 NOV?
Theresa Thurlow:
Yes.
Mr. Lell:
Do you agree with that testimony?
Theresa Thurlow:
fm
Mr. Lell:
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Why not?
Theresa Thurlow:
It seemed to me that... My recollection is that paving wasn't response to Ecology's notice of violation.
They had notified us a few years before that, at some point in the future, they were looking at paving as
a measure, a long-term BMP. That's the difference between a preventative measure, so this doesn't ever
happen again, and a reactive measure, oops, we did this track -out and now, we have to fix it.
Mr. Lell:
Okay. Did the city's January 6th, 2020 NOV inform Corliss that Corliss could avoid city permitting
requirements and implementing its selected corrective measures?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Did the city's January 6th, 2020 NOV address the issue of permitting at all?
Theresa Thurlow:
No.
Mr. Lell:
Did the city's March 3rd, 2020 closeout letter inform Corliss that Corliss could avoid city permitting
requirements?
Theresa Thurlow:
No.
Mr. Lell:
Did the city's March 3rd, 2020 closeout letter address the issue of permitting at all?
Theresa Thurlow:
No.
Mr. Lell:
To your knowledge, did any other written or verbal communication from the city ever inform Corliss that
Corliss could avoid city permitting requirements in implementing its selected corrective measures?
Theresa Thurlow:
No.
Mr. Lell:
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Okay. Do you recall, during Miss Myhre's testimony, the question... I think it was a hypothetical question
posed by appellant counsel, Mr. [Lynn 00:14:36], regarding a theoretical inquiry about filling a wetland
and what the city would do, and faced with an inquiry to that effect?
Theresa Thurlow:
Yes.
Mr. Lell:
Okay. Do you recall Miss Myhre's response to that?
Theresa Thurlow:
She did say that if she was informed that somebody was filling in a wetland, that she would let
Development Services and Code Compliance know.
Mr. Lell:
What would your response to Mr. Lynn's question be?
Theresa Thurlow:
My response would have been, yes, I would notify Development Services and Planning and Code
Compliance about a wetland violation if somebody informed me that they were going to fill in the wetland.
The same as if I was informed that somebody was going to install a permanent infrastructure on their
property without a permit, I would notify Development Services and Permitting that this person was
planning on doing that.
Mr. Lell:
Did you know, at the time, that the March 3rd, 2020 closeout letter was prepared and sent, that Corliss
had not obtained permits for the paving that it had recently installed on its property?
Theresa Thurlow:
No. I was actually astonished when I heard that.
Mr. Lell:
When did you first become aware of that Corliss did not obtain permits?
Theresa Thurlow:
It was in the fall of 2020 when Development Services asked me if we had directed them to put in concrete,
or what our water quality procedures were.
Mr. Lell:
Okay. Is Miss Myhre the only staff member with authority to issue NOVs and to prepare a closeout?
Theresa Thurlow:
Me
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Mr. Lell:
Okay. Who else at the City, to your knowledge, is authorized to issue NOVs and to send closeout letters?
Theresa Thurlow:
Code Compliance can issue NOVs, Public Works. So, this is department level. So divisions within Planning,
with code compliance can issue in NOVs, divisions within Public Works, SWIM Development Services. I'm
not sure about solid waste, but there are other departments that do issue NOVs.
Mr. Lell:
Would you have the authority to issue an NOV?
Theresa Thurlow:
Water quality NOV, yes.
Mr. Lell:
Thank you. And then, finally, did you hear Miss Myhre's testimony concerning the interpretation of FWRC
1-15-060...
Theresa Thurlow:
Yes.
Mr. Lell:
... section one?
Theresa Thurlow:
Yes.
Mr. Lell:
And do you agree with that testimony?
Theresa Thurlow:
Yes.
Mr. Lell:
Specifically, the references in that code section 2, in the first sentence too, an order to cease activity or
notice and order. Are you familiar with that reference, or those references?
Theresa Thurlow:
Yes. I'm familiar with them.
Mr. Lell:
Is the city's March 3rd, 2020 closeout letter an order to cease activity?
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Theresa Thurlow:
No.
Mr. Lell:
Is the city's March 3rd, 2020 closeout letter a notice and order?
Theresa Thurlow:
No.
Mr. Lell:
Okay. And with respect to the third sentence of FWRC 1-15060 sub one, the provision that reads, "The
city may also request a hearing before the hearing examiner to assess costs, modify previous orders, or
to enter other orders as needed." Are you familiar with that provision?
Theresa Thurlow :
I'm familiar with it, yes.
Mr. Lell:
Okay. Do you think that that provision applies in relation to the city's March 3rd, 2020 closeout letter?
Theresa Thurlow
No.
Mr. Lell:
Why not?
Theresa Thurlow:
First of all, it's an information letter. There is no code reference. There is no action required, so there's no
order to correct. There's no notice of violation. So, none of that applies.
Mr. Lell:
Okay. So, the reference there on the third sentence of FWRC 1-15060 sub 1, to, the city's ability to request
a hearing in order to "assess costs", was there a need in your view to assess costs against Corliss?
Theresa Thurlow:
No.
Mr. Lell:
Was there a need to modify a previous order in relation to Corliss?
Theresa Thurlow:
No.
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Mr. Lell:
Okay. Was there a need to enter other orders?
Theresa Thurlow:
No. In fact, we didn't even enter into an order to correct. They basically fixed their water quality violation
before we got to the level of order to correct.
Mr. Lell:
Great. Thank you very much. No further questions.
Phil Olbrechts:
Okay. Mr. Lynn.
Mr. Lynn:
Good afternoon. Let's go back to what you knew about paving, and you were very clear that the city never
advised Corliss to pave. You were copied on the emails exhibits one and two where the applicant advised
of its plan to pave the property back in 2018, correct?
Theresa Thurlow :
Yes.
Mr. Lynn:
Okay. So, you knew, at that time, that that was a plan that Corliss had?
Theresa Thurlow:
Not a plan. I knew it was an intention.
Mr. Lynn:
Well, let me read what it says here. This is Miss Myhre's email, part of exhibit one. It says, "We would also
appreciate any updates you have on the proposed pavement for your main exit area, and we'll keep you
apprised of any issues we note as well." Other than the distinction between plan and proposal, doesn't
that pretty clearly indicate their intention to pave the property?
Theresa Thurlow:
Intention, yes.
Mr. Lynn:
Okay. And similarly, you received a copy of the January NOV which attached a series of documents,
including a BMP that suggested paving, correct?
Theresa Thurlow:
One of the supplemental BMPs listed in the pollution prevention publications by King County is paving,
yeah.
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Mr. Lynn:
And you received a copy of a letter from the city at the conclusion of the process acknowledging CRS or
Corliss's pavement of the property, and the fact that that was considered to resolve the notice of violation,
correct?
Theresa Thurlow:
No. I recall that we sent out a closeout letter saying the water quality violation had been closed out.
Mr. Lynn:
So, wasn't that the violation we were talking about, the viola -
Theresa Thurlow:
Well, the water quality violation was track -out.
Mr. Lynn:
Okay. And wasn't that resolved by paving the property?
Theresa Thurlow:
That was one of the measures they took to resolve the -
Mr. Lynn:
But far and away, the most significant though, correct?
Theresa Thurlow:
Yes.
Mr. Lynn:
Sorry?
Theresa Thurlow:
Yes.
Mr. Lynn:
Okay. Thank you. Let's talk about the form of this order. Mr. Lell has asked several witnesses now
questions about these two different types of orders the city can issue. One being a order to cease, and
the other one being a notice of violation and order to correct?
Theresa Thurlow:
Yes.
Mr. Lynn:
Now, apparently, this letter falls... the letter that was issued on January 6th, 2020 is something else
besides one of those two?
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Theresa Thurlow:
That's correct. It's our first effort in notifying a property owner that they have committed a water quality
violation, and we provide them -
Mr. Lynn:
And it notifies them... Oh, sorry. I didn't mean to interrupt.
Theresa Thurlow:
And we provide them with education on how to correct that.
Mr. Lynn:
It's a little more than an educational piece though. Doesn't it notify them that they're in violation of the
law?
Theresa Thurlow:
It notifies them that they are in violation of the code, and we may take steps if they don't correct it.
Mr. Lynn:
Does it advise them specifically what steps they are to take, immediately clean up this, immediately clean
up that, and please, implement these BMPs. I mean, that directs, to some extent, the actions they're
supposed to take, does it not? And order them to do that?
Theresa Thurlow:
The cleanup of the catch basins is a mitigation measure. So, basically, they are polluting the water at that
point...
Mr. Lynn:
Right.
Theresa Thurlow:
.. and they need to clean that out. The only physical...
Mr. Lynn:
And they're ordered -
Theresa Thurlow:
way to clean it out is to vector it out.
Mr. Lynn:
Aren't they ordered to do that in the notice?
Theresa Thurlow:
Yes, they are told to do that.
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Mr. Lynn:
Aren't they advised of what the consequence is if they don't do that, specifically potential criminal and
civil sanctions and monetary penalties, as well as the cost of cleanup?
Theresa Thurlow:
Mr. Lynn:
This is more than just an educational piece. Isn't it? Isn't it a notice, an order to correct with a statement...
Theresa Thurlow:
No.
Mr. Lynn:
.... as to what the consequences are. Don't shake your head before you've heard the question, please.
Theresa Thurlow:
Yes, that's true.
Mr. Lynn:
Aren't they advised of a violation, notified of the consequences, ordered to take corrective actions and
then, advised what the consequences will be if those matters or these actions are not taken, doesn't it do
all of those things?
Theresa Thurlow:
Could you say that again?
Mr. Lynn:
Doesn't the letter advise them of a violation, tell them what they must do to correct the violation and
advise them of the consequences if they don't, which could include criminal and civil penalties?
Theresa Thurlow:
Yes.
Mr. Lynn:
Okay. I think I want to talk about the... No, I better come back to that. You indicated in response to a
question by Mr. Lell, that you disagreed with Mr. Davidson's testimony in which he said Corliss paved the
property in response to the January NOV. And as I understood that, you said that the reason you disagreed
is that Ecology had also gotten a promise of the same remedy. Correct?
Theresa Thurlow:
Yes.
Mr. Lynn:
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So, you're saying they weren't responding to the city, they were responding to -
PART 1 OF 4 ENDS [00:26:04]
Mr. Lynn:
So you're saying they weren't responding to the city they were responding to ecology.
Theresa Thurlow:
No.
Mr. Lynn:
That's not what you said? Well, maybe you could that.
Theresa Thurlow:
I said they were responding to ecology, not to both of us.
Mr. Lynn:
Okay. Well, in fact, ecology's demand had been made two years before and resolved, was it not?
Theresa Thurlow:
I think if you look at the timeline, there were two instances where ecology was involved. Can we pull up
the timeline for the water quality violations?
Phil Olbrechts:
Which city exhibit is that, Mr. [tell 00:26:43], do you know?
Theresa Thurlow:
Ah, here we go. 2017, ecology did an inspection. They issued the water quality violation. Then... Could you
scroll down please?
Theresa Thurlow:
Let's see. So then in response to that in 2018, they said they were going to sweep more frequently and
implement BMPs. And then in '18 they did issue a notice of violation again and in '18, looks like ecology
closed it out. And can you scroll down again? Can you scroll down again please? It was closed out... Okay,
stop please. Okay. So it looks like you were correct. Their proposal for paving was in response to the 2018
ecology letter.
Mr. Lynn:
My question is, if the ecology complaint was closed out in 2018, you issue a notice of violation on the 6th
of January, Mr. Davidson reports to you on the 20th of January, that the paving was done to resolve your
complaint. And then you issue a closeout letter a few weeks or months later telling him that the paving
was part of the solution. Isn't it fair to say under those circumstances that the paving was done to address
the city's water quality complaint?
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Theresa Thurlow:
Yes.
Mr. Lynn:
You said that you were astonished to find out that [Corliss 00:29:32] had not obtained permits for the
paving when you found out in the fall of 2020. But you knew that the site wasn't paved on January 6th,
2020, and you knew it was paved on January 20th, 2020, within 14 days. Wouldn't it be impossible to
obtain permits from the city for anything in 14 days?
Theresa Thurlow:
I don't know.
Mr. Lynn:
Wouldn't it be your experience? I mean, you know something about permitting, having worked at the city
for six years. Wouldn't it have been your experience that any permitting in the city would take more than
14 days?
Theresa Thurlow:
I don't know. Honestly, it's not my area of expertise. I don't deal with land use permits at all.
Phil Olbrechts:
Mr. Lell, sorry. Mr. Lell had an objection. Let's hear that first.
Mr. Lell:
I'm sorry, very briefly. I, as a general rule, don't object much in these proceedings because the rules of
evidence don't strictly apply, but this is a question that's been asked and answered repeatedly, and I would
just object on that basis.
Phil Olbrechts:
Okay. Mr. [Lynn 00:36:20], are done with that line of questioning?
Mr. Lynn:
I am, but I think it's the first time I've asked the question about how long it takes to get a permit in the
city. So I don't know how it could have been answered if it wasn't answered by this witness.
Phil Olbrechts:
Okay. All right. Let's move on.
Mr. Lynn:
Finally, you said that you agreed with the testimony of Ms. [Myhre 00:31:13] and Mr. Elliot. One of the
things they both testified was that one of the purposes of the city closeout letter, wasn't just to allow the
city to put something at the end of its file, but also to advise the applicant that the matter was wrapped
up and they could, in my words, sleep at night. Is that not also one of the purposes of the closeout letter?
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Theresa Thurlow:
No. The purpose of the closeout letter is for our files. I just thought it was polite and a courtesy to send it
to the property owner, to let them know that we were closing it out.
Mr. Lynn:
Did you hear the testimony earlier that prior to that time, property owners would call up the city and ask
about the status, and this was a way of putting them at ease and stopping the calls to the city.
Theresa Thurlow:
It did provide information to whoever had the NOV that the water quality case had been closed. It did
provide that information.
Mr. Lynn:
That's all. Thank you.
Phil Olbrechts:
Okay, Mr. Lell, any redirect?
Mr. Lell:
Yes, very briefly. Ms. [Thurlow 00:32:25], can I ask you to turn your attention to the list of BMPs that are
appended to the city's March 3rd 2020 closeout letter?
Theresa Thurlow:
Can we pull those up please? I'm not sure which exhibit they are.
Phil Olbrechts:
Okay. I'll get that up.
Theresa Thurlow:
Attachment 4-1.
Phil Olbrechts:
Okay. Give me a second here. Oh, I'm disabled from screen -sharing right now.
Theresa Thurlow:
Oops.
Mr. Lell:
I can ask the question without reference to it.
Theresa Thurlow:
Okay.
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Phil Olbrechts:
Okay.
Mr. Lell:
That's fine. If we need you we can find an alternative means.
Theresa Thurlow:
I can also pull it up if I need to.
Mr. Lell:
Do you recall Ms. Thurlow that the March 3rd 2020 closeout letter had, as an attachment, a list of best
management practices?
Theresa Thurlow:
Oh, the pollution prevention BMPs, yes.
Mr. Lell:
Yes. And, can you please describe the origin of that document, that attachment, that was appended to
the city's March 3rd close-out letter.
Theresa Thurlow:
Yeah. We provide technical assistance and we provide information and reference, and the BMP sheets
are publications put out by King County stormwater division. And it's exactly what it says. It's pollution
prevention, best management practices. And these are the kinds of things that you can do to prevent an
occurrence or to mitigate an occurrence. And we attach it as reference and information for them, so they
don't have to go looking for it.
Mr. Lell:
And to your understanding, Ms. Thurlow, are these BMP sheets themselves part of the adopted King
County Stormwater Design Manual?
Theresa Thurlow:
No. These particular sheets are publications that are provided separate. The King County Stormwater
Design Manual actually has guidelines on how to design your BMPs. How many catch basins, how big your
pond, if you're going to have this type of business, what do you do for water quality measures or water
quantity measures?
Mr. Lell:
Would you characterize them as exemplary or example -oriented in nature or would you characterize them
as directive?
Theresa Thurlow:
Oh, they're examples. This is not a comprehensive list of what could be done.
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Mr. Lell:
Turning back to the reference in, I believe it was the appellant's January 20, 2020 letter to Ms. Myhre from
Mr. Davidson. The reference in there to the paving of the entrance to the Corliss site. Do you recall that
reference and questioning concerning that?
Theresa Thurlow:
Yes.
Mr. Lell:
Is there a difference in your understanding between paving an entrance of the Corliss site, as opposed to
what the extent of paving actually was by Corliss in early 2020?
Theresa Thurlow:
Yes. If you tell me you're going to pave an entrance, I would expect it to be concrete at the entrance. I
would not expect it to go around the boundary of the property.
Mr. Lell:
Thank you. And then finally, do you recall your questioning on cross examination from Mr. Lynn in regards
to Corliss's stated intent to pave the property in response to the DOE notice that was sent previously? Do
you recall that?
Theresa Thurlow:
Yes.
Mr. Lell:
And revisiting your original testimony and Ms. Myhre's testimony regarding whether and to what extent
you believe that Corliss installed the paving in early 2020 in response to DOE's directive, as opposed to
the cities. Do you recall that?
Theresa Thurlow:
I thought it was in response to DOE's notice of violation, because that's the first time we heard about
paving.
Mr. Lell:
Okay. And do you still believe that?
Theresa Thurlow:
I believe that they put it in as the long-term measure that would meet their permit requirements for
ecology and get us off their back.
Mr. Lell:
Thank you. No further questions.
Phil Olbrechts:
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Okay. Thank you, Ms. Thurlow. Appreciate your testimony. Mr. Lell, any other witnesses?
Mr. Lell:
Yes. The next witness Mr. Examiner, is Kevin Du.
Phil Olbrechts:
Okay. Mr. Du, go ahead and unmute yourself there and a need to swear you in. Do you swear or affirm to
tell the truth, nothing but the truth, in this proceeding?
Kevin Du:
Yes, I do.
Phil Olbrechts:
And your last name is spelled D-U, is that correct?
Kevin Du:
Correct.
Phil Olbrechts:
Okay. All right Mr Lell, go ahead.
Mr. Lell:
Thank you, Mr. Du, could you please state your official job title for the city?
Kevin Du:
I'm the water quality specialist for the city.
Mr. Lell:
And how long have you held that position?
Kevin Du:
Just a little bit over two years.
Mr. Lell:
How long have you been employed at the City of Federal Way?
Kevin Du:
I started at the end of 2018 as an intern and I became water quality specialist beginning of 2020.
Mr. Lell:
And what are your job duties.
Kevin Du:
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I help do the water quality program, the IDE part of the program that looks at discharge detection
elimination. I also did water quality monitoring at various sites throughout the city for analysis and
assessment. And then I also help out with the education outreach part of our permit.
Mr. Lell:
What is the nature and extent of your involvement with the Corliss matter?
Kevin Du:
I was the one who responded to the complaint. I did the inspection, I drafted the letters and, yeah.
Mr. Lell:
Thank you. And do you have personal knowledge regarding the Corliss matter?
Kevin Du:
Yes.
Mr. Lell:
And are you familiar with the documents that have been entered into evidence with this proceeding.
Kevin Du:
Yes, I am.
Mr. Lell:
And did you listen to the testimony of the other city witnesses today?
Kevin Du:
Yes.
Mr. Lell:
And are you in agreement with the testimony that the other city witnesses provided?
Kevin Du:
Yes. I agree.
Mr. Lell:
And is there any aspect of the testimony of the other city of witnesses with which you disagree?
Kevin Du:
I don't believe so.
Mr. Lell:
Do you recall the testimony concerning the difference between formal notices of violation and formal
orders on one hand versus letters on the other hand that was described by Ms. Thurlow and Ms. Myhre?
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Kevin Du:
Yes.
Mr. Lell:
And do you concur in that characterization that both of those witnesses provided.
Kevin Du:
I concur.
Mr. Lell:
Okay. Do you have anything else to offer or provide informationally concerning the history of water quality
enforcement at the Corliss property, beyond what Ms. Myhre and Ms. Thurlow already testified to?
Kevin Du:
No, I believe they reflected most of the... All of them.
Mr. Lell:
Okay. Could you please briefly describe the circumstances as you understand them leading up to the
January 6th 2020 NOV?
Kevin Du:
Yes. So we received internal notice of turba discharges into the city stormwater system. I responded by
going onsite. I took some samples, I took pictures, I did a walkthrough, and once I got my documentation,
I went back to the office, notified Lea and Theresa and ecology and Logan. And then I also drafted the
letter for them because we had turba discharges going into our MS4. That's not allowed. And that's what
led us to the NOV.
Mr. Lell:
Okay. Did you personally have any communications with Corliss and Corliss's representatives prior to
issuance of the NOV?
Kevin Du:
Yes. I've spoken to Logan before regarding previous track out?
Mr. Lell:
Okay. And what was the substance of that communication or those communications?
Kevin Du:
It would be, "Hey Logan. I was onsite today. We saw track out. Could you please take care of it? Let me
know if there's anything else I can do."
Mr. Lell:
And were you involved at all, Mr. Du, in the preparation of the March 30 2020 closeout letter?
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Kevin Du:
Yes. Yes, I drafted.
Mr. Lell:
And what investigative or inspection efforts occurred if any, prior to the preparation of that letter?
Kevin Du:
Oh yeah. So I went onsite after receiving notice of turbid discharges, took photo documentation, I took
measurements to measure the NTUs, which is how you measure turbidity in water quality. Because, on
our code, it's supposed to be below a certain level.
Kevin Du:
I took background samples for how the water quality of the stormwater is before, without the turbid
discharge, what it looks like without it. And took documentation, and that's my investigative work. But we
also went on the site and took photos for four separate days because the turbid discharge was ongoing.
It happened at multiple times.
Mr. Lell:
Okay. Thank you. Do you agree with the testimony of the other staff members or other witnesses today
concerning the methods by which the city distributed the March 3rd 2020 closeout letter?
Kevin Du:
Sorry. Could you repeat that?
Mr. Lell:
I'll rephrase it? How was the March 3rd 2020 closeout letter sent to the landowner?
Kevin Du:
We sent it via email or via physical mail if we do not have the email.
Mr. Lell:
So, to your understanding that the letter was not posted onsite?
Kevin Du:
Yes. It was not posted.
Mr. Lell:
To your understanding, it was not sent by certified mail at all.
Kevin Du:
fo
Mr. Lell:
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Do you agree with Ms. Myhre's testimony and Ms. Thurlow's testimony concerning the purpose and effect
of closeout letters generally in the larger scheme of the city's enforcement framework?
Kevin Du:
Yes, I do.
Mr. Lell:
To your knowledge, has any landowner ever attempted to appeal a closeout letter?
Kevin Du:
No, they have not.
Mr. Lell:
Are you aware of any written or verbal communication from the city that ever directed Corliss to install
pavement?
Kevin Du:
No.
Mr. Lell:
Are you aware of any written or verbal communication from the city that ever directed Corliss to select
or otherwise implement any particular corrective measure?
Kevin Du:
No.
Mr. Lell:
And do you agree with the statement by the previous city witnesses that as a matter of policy and practice
that the city typically does not direct landowners to install or otherwise implement a specific measure in
order to correct a violation?
Kevin Du:
Yes. I agree with it.
Mr. Lell:
Are you aware of any written or verbal communication from the city that ever informed Corliss that Corliss
could avoid city permitting requirements and implementing its selected measures to correct the violation?
Kevin Du:
No.
Mr. Lell:
Thank you. No further questions for Mr. Du.
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Phil Olbrechts:
Okay. Mr. Lynn? Oh, Mr. Lynn, you're muted still. Need to unmute yourself.
Mr. Lynn:
Yeah. Thank you. That was my way of reminding myself not to ask too many questions. Good afternoon,
Mr. Du. Are you familiar with the city permitting processes to the extent that you'd know whether 14 days
would be too short a time to apply for and have the city process and issue a permit and then complete
work?
Kevin Du:
I am not familiar.
Mr. Lynn:
Okay. You have just no idea how long that would take?
Kevin Du:
No sir.
Mr. Lynn:
That never comes into play in talking with applicants about what the appropriate remedy might be, to fix
a water quality violations.
Kevin Du:
I'm sorry. Can you repeat that?
Mr. Lynn:
I'll withdraw the question, nevermind. You were asked some questions to distinguish this letter that
Corliss received on January 6th, from a notice of violation and order to correct. Was that your testimony?
Kevin Du:
No, it's a violation warning letter.
Mr. Lynn:
Yes.
Kevin Du:
Yep.
Mr. Lynn:
Your testimony was that, that's something different than a notice of violation and order to correct?
Kevin Du:
Yes. Warning is different from order. Yes.
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Mr. Lynn:
Is there any code provision you can site us to, that would tell us where a warning letter like this would be
defined or provided for in the code?
Kevin Du:
Not to my knowledge.
Mr. Lynn:
It certainly advised Corliss that there was an alleged violation of its property, right?
Kevin Du:
Of the warning letter? The...
Mr. Lynn:
Yes. And that it required action. It didn't just say, "You might want to think about this." It said, "Do this."
Correct?
Kevin Du:
Well, we advised them to take action and if they didn't, then we would have gone to an order to correct.
Mr. Lynn:
Well, it doesn't say that in the code though, does it? In the letter, the letter says, "If you don't do this, we
can bring a civil enforcement action, criminal sanctions and our monetary penalties." That what would
happen if you didn't take the required actions within the established period of time. Isn't that how you
understood your letter?
Kevin Du:
Right. In civil action, I believe an order to correct is one of those. I might be wrong.
Mr. Lynn:
Well, didn't you intend for Corliss to take this seriously and to advise them that there would be serious
consequences if they didn't?
Kevin Du:
I believe so. In the letter it says so.
Mr. Lynn:
Okay. I'm looking at an email that you used to send the closeout letter to Mr. Davidson and you copied
Mr. Walsh and Ms. Thurlow and others. It's dated March 3rd 2020, and it's city Exhibit 4E-28.5, I believe.
And it's subject is 'Closeout of Notice of Violation and Order to Correct.' Isn't that what the closeout letter
was? It was closing out a notice of violation and order to correct?
Kevin Du:
I'm sorry. Could I see the email?
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Mr. Lynn:
I don't have access to it, but somebody else, Mr. Lell I'm sure could share it with you.
Phil Olbrechts:
Yeah. Actually I can, what's the exhibit number?
Mr. Lynn:
4E-28.5.
Phil Olbrechts:
Oh, that's under the city exhibits?
Mr. Lynn:
Yes, sorry.
Phil Olbrechts:
Okay. 4E-28.5. All right, here we go. Oh, okay. Someone else is putting it up. All right, go ahead.
Mr. Lynn:
Okay. I'm looking at the language that's right under your name, which is the subject matter. And I'm just
asking -
Kevin Du:
Correct. Yes. I'm may have done a typo in my subject of my email.
Mr. Lynn:
Okay. So you think that's just a mistake on your part. At the time, it's not what you were intending to call
it?
Kevin Du:
Right. Yeah. I was referring to the notice of violation warning letter.
Mr. Lynn:
But you do agree that one of the purposes of the closeout letter is to advise the applicant that the matter
has been put to rest? Is that correct?
Kevin Du:
In concern to a water quality violation, yes.
Mr. Lynn:
Yip. That's all I have. Thank you.
Phil Olbrechts:
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Okay. Mr. Lell, any redirect?
Mr. Lell:
Yes, very briefly. Mr. Du, there's been a lot of talk obviously about the paving that occurred on the Corliss
property in early 2020. And I think that there has been, if I understand it, some sort of a premise that
there was no paving done on the site before that time. Do you know or does the city know, is the city
aware, of when the city actually knew that the pavement was being installed, what the timeframe was of
the city's knowledge and when that paving actually occurred? Are we able to definitively identify that time
period?
Kevin Du:
I wouldn't be able to recall other than the follow-up inspection that Logan scheduled with me, to show
me the incomplete paving and their plans.
Mr. Lell:
When was that? When were you aware of that? When did Logan provide that information to you?
Kevin Du:
I believe... I want to go back to the closeout letter. It states in there, I believe it was around February or
January, around there. February.
Mr. Lell:
Of 2020?
Kevin Du:
I believe so.
Mr. Lell:
Okay. Thank you. No further questions.
Phil Olbrechts:
Great. Thank you, Mr. Du, appreciate your testimony. Mr. Lell, any other witnesses?
Mr. Lell:
Yes. Our next witness is Kevin Peterson.
PART 2 OF 4 ENDS [00:52:04]
Phil Olbrechts:
Are any other witnesses?
Mr. Lell:
Yes. Our next witness is Kevin Peterson.
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Phil Olbrechts:
All right. Mr. Peterson, you need to unmute yourself. Swearing -in first, you swear or affirm to tell the
truth, nothing but the truth in this proceeding?
Kevin Peterson:
I do.
Phil Olbrechts:
All right. And that's P-E-T-E-R-S-O-N, is that correct?
Kevin Peterson:
That's correct.
Phil Olbrechts:
All right. Okay, go ahead, Mr.Lell.
Mr. Lell:
Thank you. Mr. Peterson, what is your official job title with the City of Federal Way?
Kevin Peterson:
I'm senior engineering plant reviewer.
Mr. Lell:
Okay. And how long have you held that position?
Kevin Peterson:
That particular position, maybe a year and a half, but I've been a plan reviewer for close to 20 years.
Mr. Lell:
All with the City of Federal Way?
Kevin Peterson:
Yes.
Mr. Lell:
And what are your current job duties?
Kevin Peterson:
I review permit applications, either through the pre -application process, the land use process, and the
actual permitting process.
Mr. Lell:
And do you have personal knowledge about the Corliss matter at issue in this proceeding?
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Kevin Peterson:
Yes.
Mr. Lell:
What is the nature and extent of your involvement with the Corliss matter?
Kevin Peterson:
My extent of the Corliss matter is in the permit that they applied for. Well, actually originally the land use
permit they applied for, for a temporary batch plant on their site in... I believe that application came in in
May or June of 2020. 1 reviewed their land use application and then I believe in July they came in with an
actual building permit.
Mr. Lell:
Okay. And are you familiar with the various exhibits that have been presented into evidence for this
proceeding?
Kevin Peterson:
Most of them I'm not completely familiar with all of the previous water quality violation exhibits.
Mr. Lell:
Have you listened to the testimony of the other city witnesses during today's proceeding?
Kevin Peterson:
Yes. In general, yes.
Mr. Lell:
And are you in agreement with the testimony of those other city witnesses?
Kevin Peterson:
Yes.
Mr. Lell:
Is there any aspect of the testimony the other city witnesses that you disagree with?
Kevin Peterson:
No.
Mr. Lell:
Okay. Are you familiar with the city's stormwater regulations?
Kevin Peterson:
Yes, sir.
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Mr. Lell:
Okay. Could you please provide, in your own words, kind of a general summary of those regulations?
Kevin Peterson:
Well, anybody that's proposing to develop a piece of property, there are certain thresholds in our
stormwater water regulations that require permits. That's specified in section 16.15.010 regulated
activities. And also under our stormwater management design manual, the King County service water
design manual also regulates and requires when a review is required.
Mr. Lell:
Okay. And are you familiar with the city's enforcement framework for those stormwater regulations?
Kevin Peterson:
I am not as familiar with the enforcement side of that.
Mr. Lell:
Okay. So if I understand your testimony, your role is more geared toward the review and permitting side
than it is the enforcement side. Is that correct?
Kevin Peterson:
That's correct.
Mr. Lell:
Okay. Did you hear Mr. Elliott discuss the location and topography and physical condition of the Corliss
site in his testimony?
Kevin Peterson:
Yes.
Mr. Lell:
Is there anything that you would add to Mr. Elliot's testimony regarding that?
Kevin Peterson:
No, that was quite accurate.
Mr. Lell:
Okay. And going back to the permit applications that you briefly touched on in your introductory
statement for the Corliss property, could you please describe those in more detail, specifically as they
relate to stormwater issues?
Kevin Peterson:
So their land use application came in and the permit or the application materials included site plans and
a technical information report, which is specific to stormwater, and there was plans. One of their plan
sheets showed a fairly large detention vault, water quality vault, and stormwater collection in conveyance
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system. The technical information report, which I believe is one of the exhibits, specifically stated that as
part of their development of this temporary batch plant, a large portion of their site was to be paved and
a stormwater system was to be installed that met the city's standards for detention and water quality.
Mr. Lell:
Okay. Thank you. Anything else to add with specific respect to the building permit application?
Kevin Peterson:
And the building permit application came in and none of the aforementioned materials as far as paving or
stormwater system collection conveyance detention was presented any of those materials. And that
caused us to write a series of review letters that requested those items be shown on the plan so that we
can continue and complete our review of their permit.
Mr. Lell:
And with respect to Mr. Elliot's testimony that the land use permit was issued earlier in 2020 and was not
timely appealed, is that your understanding as well?
Kevin Peterson:
Yes, that's correct.
Mr. Lell:
And Mr. Elliot's testimony that the building permit, I think in his words was stalled or is on hold, is that an
accurate statement to your understanding?
Kevin Peterson:
Yes, that's correct.
Mr. Lell:
Could you please describe the circumstances leading up to the December 18th, 2020 notice of violation,
and particularly how the city became aware of the violation that resulted in that directive?
Kevin Peterson:
Yes. So I had gone into the office. I believe I had a meeting with another applicant. So I had gone in to
meet with that applicant, hold that meeting. When I left that meeting, on my way home I drove past the
Corliss site, just as a general... See what's going on here, see if there's anything new as far as if there's
been a movement on their permit, which shouldn't have been because the permit hadn't been issued. But
I did notice that a section of their site had been paved that didn't look new.
Kevin Peterson:
And so I stopped, got out, took a little closer look and sure enough, when I... I Think Mr. Elliott even
indicated I got home, I checked the Google earth map view or satellite view and noticed that what I had
seen had been paved wasn't paved in May of 2019.
Mr. Lell:
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Mr. Peterson, did you have any communications directly with the Corliss or its representatives following
your discovery of that paving?
Kevin Peterson:
I had sent a letter to Apex Engineering. Apex Engineering is their contract engineering firm. They are listed
as the applicant on the permit. I sent a letter stating that I had noticed this paving had been noticed, and
besides what we've been trying to enforce through other previous letters on this permit, they would be
required to upgrade their entire site to meet our nonconforming water quality code, which requires if you
pave or are adding pervious surfaces over a certain amount, then your entire site needs to be upgraded
to meet our water quality code section.
Mr. Lell:
Any other communications that you can recall?
Kevin Peterson:
I don't recall any after that letter.
Mr. Lell:
Okay.
Kevin Peterson:
My last letter to them was December 14th, I believe.
Mr. Lell:
Thank you. No further questions.
Phil Olbrechts:
Okay. Mr. Lynn.
Mr. Lynn:
Yes. Thank you. So with respect to these land use applications that were pending before the city, there
was a proposal to build a car wash on the property.
Kevin Peterson:
Yes, that's correct. That did come in a couple of years ago and I did review that as well. Yes.
Mr. Lynn:
Okay. And that did involve substantial paving of the site and proposed an upgrade to the water treatment
system?
Kevin Peterson:
Yes. The car wash itself was proposing to improve and pave and have their car wash in the Southeast
corner of their site. However, with what they were adding for impervious, that project is of itself also
triggered our nonconforming water quality code.
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Mr. Lynn:
Right. So had that project gone forward, it would have been required to upgrade the entire storm system?
Kevin Peterson:
They would have been required to upgrade to the non... So they were meeting our water quality
treatment for their site.
Mr. Lynn:
And that plan had the vaults that you mentioned earlier, the water quality vault and so forth, correct?
Kevin Peterson:
That plan had... Yes, it had separate detention and water quality vaults proposed, but also the land use
application that they submitted with the temporary batch plant showed a separate system to the West of
that site.
Mr. Lynn:
Okay. And that application was put on hold, correct? The city really hasn't taken any action on that in
some time, has it?
Kevin Peterson:
You're talking about the car wash site? Yes, that's correct.
Mr. Lynn:
Okay. And so when the applicant came in with a different plan, just to change the batch plants and
indicated it only intended to pave a small amount of square footage... Well, first of all, you agree that only
a small amount of square footage would be needed to accommodate the change in the batch plants?
Kevin Peterson:
My understanding is they needed to install a footing or a foundation for the temporary batch plant.
However, as I stated before, their land use application showed much more than that.
Mr. Lynn:
Right. Are you aware that the city required Corliss to basically combine its small plan for the batch plant
paving with its large plan for the car wash proposal, even though the car wash proposal was not then
going to go forward?
Kevin Peterson:
I reviewed these as separate applications. I didn't necessarily believe that this application for the batch
plant had anything to do with the car wash plans.
Mr. Lynn:
So if someone at the city required that they be combined, would that have been somebody in a land use
area and not in the engineering side of things?
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Kevin Peterson:
I honestly couldn't answer that question because I don't know the answer to it.
Mr. Lynn:
Okay. But at least as you see the batch plant proposal by itself, if none of this other additional paving was
proposed, would not require an upgrade to the storm system.
Kevin Peterson:
Our requirement, besides what we saw in the land use application, which provided plans which were
proposed, also requires that we have a code section that requires all the circulation and parking and access
areas of a site be paved to a material superior or equal to that of the right of way that they get access
from.
Mr. Lynn:
Okay. So your contention is that no matter what the applicant would, if it changed anything about the
site, be required to upgrade the water to the storm drainage treatment system?
Kevin Peterson:
Essentially, yes.
Mr. Lynn:
Okay. You are familiar with the permit process that would be required for a site development permit in
the city?
Kevin Peterson:
Yes.
Mr. Lynn:
And how long would that take?
Kevin Peterson:
I couldn't give you an accurate answer, it all depends on the project itself and the complexity of the
project. Some are fairly quick and some are drawn out over years.
Mr. Lynn:
Isn't it fair to say that even a fairly quick one would likely take at least a couple of months?
Kevin Peterson:
I think that's fair, yes.
Mr. Lynn:
Okay. That's all I have. Thank you.
Phil Olbrechts:
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Okay, Mr. Lell, any redirect?
Mr. Lell:
No redirect. Thank you, Mr. Tim.
Phil Olbrechts:
Okay. Thank you, Mr. Peterson. All right, Mr.Lell, any other witnesses?
Mr. Lell:
Yes. One final witness and that's EJ Walsh.
Phil Olbrechts:
Okay. Mr. Walsh, I need you to unmute yourself. We need to swear you in. Do you swear or affirm to tell
the truth, nothing but the truth in this proceeding?
EJ Walsh:
I do.
Phil Olbrechts:
All right. And that's W-A-L-S-H. Is that correct?
EJ Walsh:
It is.
Phil Olbrechts:
Okay. Great. All right, Mr.Lell, go ahead.
Mr. Lell:
Thank you. Mr. Walsh, what's your formal job title with the city?
EJ Walsh:
Public works director.
Mr. Lell:
And how long have you been employed with the city?
EJ Walsh:
I've been employed since 2015.
Mr. Lell:
And have you always had that job title during your time at the city?
EJ Walsh:
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No. I was confirmed as the public works director April 3rd, 2018, before City Council.
Mr. Lell:
And as director, what are your job duties?
EJ Walsh:
I oversee all of public works and report to the mayor and City Council.
Mr. Lell:
And do you have personal knowledge regarding the Corliss matter that's at issue in this appeal?
EJ Walsh:
I do.
Mr. Lell:
And what's the nature and extent of your involvement with the Corliss matter?
EJ Walsh:
As I said, I oversee all public works, so as many of the letters I get CC'd on them. I've also been involved
through staff briefings where they're briefing me throughout the entire process.
Mr. Lell:
Are you generally familiar with the city documents that have been entered into the record as evidence in
this proceeding?
EJ Walsh:
I am.
Mr. Lell:
And have you listened to the testimony of the other city witnesses who testified today?
EJ Walsh:
I have.
Mr. Lell:
And do you disagree with any of the testimony that they've provided?
EJ Walsh:
No.
Mr. Lell:
Okay. I'd like to turn your attention to the provision of the city's code that was cited in the notice of appeal
by the appellant. And if I could get that up on the screen one more time, please. It's FWRC 115060.
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Phil Olbrechts:
Okay. That up.
Mr. Lell:
And while that's coming up on the screen, I would just like to ask, Mr. Walsh, as part of your position as
director, are you the official at the City of Federal Way, the highest official that has an interpretive
authority over the various public works regulations that the city has adopted?
EJ Walsh:
I am.
Mr. Lell:
Okay. So could you please look at subsection one of FWRC 115060?
EJ Walsh:
Yes.
Mr. Lell:
And in the first sentence there, there's a reference to order to cease activity and notice and order. In your
understanding as director and your familiarity with the code, is the city's March 3rd, 2020 close-out letter
a notice and order, or an order to cease activity?
EJ Walsh:
And it is not.
Mr. Lell:
Okay. In your understanding as the director and your familiarity with the city's regulations, is a close-out
letter appealable?
EJ Walsh:
No.
Mr. Lell:
Okay. To your knowledge, has a close-out letter ever been appealed in the City of Federal Way?
EJ Walsh:
No.
Mr. Lell:
Okay. Do you agree with the testimony of Ms. Myree, Mr. Du and Ms. Perlo concerning the history of
close-out letters in the city and how that particular document template was created?
EJ Walsh:
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Mr. Lell:
Looking at the third sentence then of FWRC 115060, and the references there to the city's ability to
request a hearing before the hearing examiner, to assess costs, modify previous orders, or to enter other
orders as needed, in your understanding, Mr. Walsh, is this provision of the code applicable to the city's
March 3rd, 2020 close-out letter?
EJ Walsh:
It is not.
Mr. Lell:
Okay. And could you explain in your view why that it is not?
EJ Walsh:
Well following under subsection one, this is not something that follows that process. So the subsequent
sections are not applicable. But even further than that, the letter is an informal document, frankly, for our
files more than anything, but we are not seeking to impose a daily monetary penalty on the party as part
of this, and we're not seeking to modify an order. So there's no need to go to the hearing examiner since
we're not seeking to do either of those.
Mr. Lell:
Okay. Thank you. Are you familiar with previous permitting requests by Corliss in the City of Federal Way?
EJ Walsh:
I am.
Mr. Lell:
Has Corliss gone through the city's pre -application process for other matters besides the ones that are
issued in today's proceeding?
EJ Walsh:
Multiple times?
Mr. Lell:
Could you describe that to the best you can?
EJ Walsh:
Yes. So, as it has been mentioned several times, they went through a formal pre -application process for
the car wash sites some years ago. They have also been through it more recently for another site they are
contemplating acquiring is my understanding. I do not know if they've actually acquired that or not, but
they have gone through that process multiple times.
EJ Walsh:
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As part of that process, we go through a pre -application, they submit materials. So your staff reviews them
as does Lake Haven, sewer and water authority, and other outside agencies, South King Fire is another
one. And then we do a conference with the applicant and go item by item, division by division, and
highlight all of the key things that are needed for a complete application.
EJ Walsh:
It's been our experience that this helps the applicant as they move through the process when they submit
a formal permit, because they have an understanding of what the city's requirements are. So they did
complete that process multiple times historically.
Mr. Lell:
And on the continuum of sophistication with a very uninformed mom and pop style applicant on one
extreme end and a large multinational company on the other, where would Corliss fall on that spectrum
in terms of its general sophistication related to permitting matters generally?
EJ Walsh:
As far as permitting goes, I will say Corliss is probably one of the more sophisticated entities we work with
within the city. If it's okay, I'll keep my answer in terms of the applicants we deal with internal to the city.
But I would put them at the top of the sophistication level of applicants we deal with that are submitting
applications to the city.
Mr. Lell:
Do you have any reason to believe that Corliss would not be familiar with the city's permitting
requirements within the City of Federal Way?
EJ Walsh:
I do not. They've hired a well -regarded engineering firm to assist them with that. So my belief would be
they're completely familiar.
Mr. Lell:
Okay. Are you aware of anything in the city's regulations that would enable a code violator facing a notice
of violation to avoid permitting requirements in relation to whatever corrective measures are ultimately
implemented to correct the violation?
EJ Walsh:
No.
Mr. Lell:
Okay. Thank you. I have no further questions.
Phil Olbrechts:
Okay, Mr. Lynn.
Mr. Lynn:
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Yeah, just a minute, please. Sorry. Battling a non-COVID cold.
Phil Olbrechts:
I hope you feel better.
Mr. Lynn:
Thanks. Have there been any steps taken since this matter came up to improve communications between
the violation notice side and the permitting side?
EJ Walsh:
Are you asking internal to the city or, I guess, in what context are you asking that?
Mr. Lynn:
Yeah. I'm asking about the city processes.
EJ Walsh:
No.
Mr. Lynn:
Okay. How long would it take to process a site development permit for this property?
EJ Walsh:
I would say that would depend on the level of completeness on the application we receive from the
applicant.
Mr. Lynn:
Okay. You were arguing or testifying that there was something different between what was issued to the
Corliss companies on January 6th and a notice of violation in order to correct. The first sentence describes
a notice and order as a notice of violation and an order to correct. Didn't the January 6th notice give Corliss
notice of a violation, an alleged violation?
EJ Walsh:
I'm not sure I'm following your question.
Mr. Lynn:
Are you familiar with the January 6th NOV?
EJ Walsh:
Yes I am.
Mr. Lynn:
Okay. And we call it an NOV, which is a Notice of Violation. That's what it is, isn't it?
EJ Walsh:
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We call it an NOV, yes. In short.
Mr. Lynn:
And that's what the title says. It says notice of water quality violation, and then it adds the word warning.
EJ Walsh:
Correct.
Mr. Lynn:
But it gives notice of a violation. I mean, the premise of this is that someone has violated the code, correct?
EJ Walsh:
The premise is someone has violated the code. That is correct. It is a warning, as you said, a Notice of
Violation is step two, this is step one.
Mr. Lynn:
Well, okay. I understand you want to characterize it today as a warning, but let's just read what it says
that notifies of the violation. And then it says corrective actions, number one, immediately clean and
remove sediment from catch basins. Number two, immediately clean up the track out and the right of
way. And then it goes on number three, please... I guess the word pleases is kind of nice, but, implement
both short and longterm BMPs. So isn't that more than just a suggestion? It's asking the applicant to do
something. Is it not?
EJ Walsh:
It is asking them to clean the public right of way. Yes.
Mr. Lynn:
Okay.
EJ Walsh:
And then there's a separate [crosstalk 01:17:29]
Mr. Lynn:
I'm not saying whether it's something they should do or shouldn't do, I'm just saying it tells them a
violation and it tells them what to do about it. It gives them an order to do something.
EJ Walsh:
That is correct.
Mr. Lynn:
Okay. And then it goes on to say, "To impose a time limit, if the corrective actions are not commenced
within 15 days of the date listed above or completed by January 27th, the city may bring in a civil
enforcement action, criminal sanctions and or monetary penalties to abate, discontinue and so forth."
And then it goes on to say, the next part -
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Mr. Lynn:
Then it goes on to say the next paragraph, if you wish to avoid penalties, then you have to do certain
things. So my question is, isn't that an order, a notice of a violation and an order to do something with a
specification of what the consequences will be, if you don't timely remedy the problem?
EJ Walsh:
So, most of what you outlined is the step two of the process, the formal violation letter, which imposes
the start of penalties and all of that. So the warning is step one, the formal violation letter is step two,
failure to comply with the warning leads to the violation. Yes. If I'm summarizing what you're asking
correctly, that is correct.
Mr. Lynn:
So this is issued by certified mail, it's a formal letter from the city. Doesn't say anything about this just
being a warning, if you decide not to do anything about it, we won't really do anything until we send some
other kind of a letter to you. Doesn't it tell you by certified mail, this is an order and you better comply
with it, or these penalties will befall you?
EJ Walsh:
It tells you to comply with it, or it will escalate. Yes.
Mr. Lynn:
Mr. Lell, asked you some questions about section 1.15.060, regarding the appeal to the hearing examiner.
And has some things that the person receiving the notice can do. They can appeal, but it also says the city
may also request a hearing before the hearing examiner to assess costs, modify previous orders or enter
other orders as needed.
Mr. Lynn:
And he asked you a couple of questions about that, and I think you said, there would be no reason to do
that in this circumstance. Couldn't the city knowing that the applicant had paved the property, in fact,
citing the applicant and thanking the applicant for doing that, I guess I shouldn't call them applicant, it's
an owner, I guess.
Mr. Lynn:
Couldn't the city knowing that and knowing it wasn't permitting, it's just a matter of public record issued
a subsequent order within that time period, directing the applicant to comply with city codes regarding
the paving. Wouldn't that be a good example of an additional order that the city could have entered as
needed?
EJ Walsh:
I think that's probably not an accurate characterization. I think the intent of that is more had the city gone
out and vactored out the inlets, more or less on behalf of the property owner, that gives us the ability to
go to the hearing examiner and request to recoup the costs incurred by the public to clean up that public
infrastructure.
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EJ Walsh:
I think that there is certainly the ability to append a hearing through the process you've outlined. But the
intent of that to my understanding is more to recoup costs associated with actions, the city has to take
due to remediate.
Mr. Lynn:
Well, the first example is to assess costs. So that's what you're talking about, but then it goes on to say,
modify previous orders. You could certainly modify the previous order to require permit compliance. And
then it says, or to enter other orders as needed, which is very broad authority. So, isn't it fair to say that
that authority is considerably broader than just assessing costs?
EJ Walsh:
It is broader, but this is a water quality violation that we're talking about, not a violation of the
development services code. So specific to -
Mr. Lynn:
Go ahead.
EJ Walsh:
So, specific to a water quality violation. The standard for the city is to fix up and to control it onsite by the
property owner. So, that's a pass fail requirement. So -
Mr. Lynn:
And so, even though you're involved in this and copied on all the emails before, during and after, and the
letters that started this and the letter that closed it out, and even though you know, that a permit is
required and was not issued in this case, you don't think this authority is one that the city could have
exercised here?
EJ Walsh:
So at the time I did not know a permit was not issued. So to be very clear, I received these for all of the
NOV issued citywide, not just specific ones. So, unfortunately that's a fair amount of mail. We do not do
a file review every time, or I do not do a file review every time I receive one, to cross-reference to make
sure a property owner has secured the proper permits.
EJ Walsh:
So when I see a closeout letter, that such as you're referencing my take on it again, I do not sit there and
do a file review to confirm that they've done every proper step, is the property owner has done what they
are required to do to rectify it, in this case, that also includes permitting the improvements they may have.
Mr. Lynn:
And then that was the reason I asked the question at the beginning about whether or not there were any
systemic changes.
EJ Walsh:
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And my answer is no. So in my history with the city, this is the first time that I am aware that a property
owner has not gone through the process that they should to obtain permits.
Mr. Lynn:
How often in the course of a week does something unique happen to you as the public works director in
the City of Federal Way?
EJ Walsh:
Everyday.
Mr. Lynn:
That's a rhetorical question, I'll withdraw it. That's all I have. Thank you.
EJ Walsh:
My answers every day for you.
Mr. Examiner:
All right. Mr.Lell.
Mr. Lell:
Very briefly. Thank you. Mr. Walsh, I think you touched on something in your response comments to Mr.
Lynn that I think is critical to this larger dispute, and that is the distinction between an enforcement action
based on stormwater quality versus an enforcement action that's based on failure to achieve permitting
compliance. In regards to the January 6th, 2020 NOV, that the city issued against the Corliss property, was
that based on failure to attain storm water compliance or quality, or was it based on lack of permitting?
EJ Walsh:
So there's two NOVs, without seeing them on my screen, I'm not... There's a December one and a January
one. I'm not-
Mr.Lell:
Sorry, I'm referring specifically to the January 6th, 2020 NOV, that ultimately led to the March 3rd, 2020
closeout letter. Was that notice that January 6, 2020 NOV, based on stormwater quality issues, or was it
based on the land owner's failure to obtain a proper permit?
EJ Walsh:
That was based on stormwater violations.
Mr.Lell:
And was the city's March 3rd, 2020 closeout letter based on stormwater quality issues or was it based on
permitting issues?
EJ Walsh:
Stormwater.
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Mr.Lell:
Thank you. No further questions.
Mr. Examiner:
Thank you. Well, sorry, Mr. Lynn -
Mr. Lynn:
No.
Mr. Examiner:
Okay. All right. Thank you, Mr. Walsh, I appreciate your testimony. All right. And Mr.Lell, I think you said
that was your final witness, is there anything else you wanted to say before we move on to a rebuttal
from the felon, if any?
Mr.Lell:
Nothing from the city, Mr. Examiner.
Mr. Examiner:
Okay. All right. Mr. Lynn, did you have any rebuttal evidence you wanted to present?
Mr. Lynn:
I'm suspecting not, but I'm wondering if we could take our 90 minute,
Mr. Examiner:
Sure.
Mr. Lynn:
It's been 90 minutes, I think. If we take a break, then I can have a quick recognizer and make sure.
Mr. Examiner:
Okay. All right. Well, I'll be back in session at 2:40 then. We'll see you then.
Mr.Lell:
And then Mr. Examiner, I'll do the same. Thank you.
Mr. Examiner:
Okay. (silence). All right. Let's just wait for Mr.Lell to join us and then we'll get back into it. There he is.
Okay. Back on the records, 2:40 PM, February 8th, 2021. We're back from a 10 minute break on the
correspondent to NOV appeal, index 20-004. We're now at the rebuttal stage, if any of the appellants, Mr.
Lynn, did you have anything you wanted to present?
Mr. Lynn:
No.
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Mr. Examiner:
Okay. All right. So, we talked about at the beginning about having a little written briefing, the city wanted
a chance to file a written response to the accounts per hearing brief. And I think that would also then
trigger a right of reply brief from the appellants if they wanted one. And we can schedule that, depending
on how much time the parties need. The parties also indicated they wanted to make a few verbal
comments. Is that still the case, Mr. Lynn, did you want to make some comments before we wrap it up
today?
Mr. Lynn:
Well, I started with a little opening argument, so I don't feel the need to do that. I guess if Mr.Lell wants
to do it, then we can certainly both jump in here.
Mr. Examiner:
Okay. Mr.Lell, did you want to say anything or just save your comments for your written?
Mr.Lell:
Very briefly, Mr. Examiner? I will say most of my comments, particularly the detailed one for our written
post -hearing briefing. I think the note for the record, that in the city's view of the appellant who carries
the exclusive burden of proof and persuasion in this proceeding has not met that burden. We have
essentially undisputed testimony regarding the occurrence of the violation.
Mr.Lell:
There's no real credible argument or question that the property was paved, that the city's code would
require a permit compliance with that action, and that a permit was not obtained. Really, what Corliss is
arguing in this appeal, is that the city has somehow waived its ability to enforce that permitting
requirement by virtue of the city.
Mr.Lell:
So in March 3rd, 2020 closeout letter, and very briefly to reiterate my opening comments in the city's view
that, that argument is without merit. The March 3rd, 2020 closeout letter, by its terms and by its context
and effect, is a purely informational document. It does not have independent and binding regulatory
authority, it was created as a template simply to essentially prepare the file and provide some note to the
property owner that the specific corrective action that had been provided for.
Mr.Lell:
But it doesn't purport by its terms to excuse any permitting compliance that would otherwise be imposed
by the code. And that again is a point that was raised or testified to, about multiple city witnesses,
including the city's highest court official in this context, Mr. Walsh. With respect to FWRC 115060, that
provision is inapplicable to this situation on its face.
Mr.Lell:
The references in that code section two, notices, an orders and formal orders to correct, are inapplicable
here. Those are not by their terms, they're equivalent to the March 3rd, 2020 letter, and the city was not
required to run back to the hearing examiner and request a hearing for the purpose of enforcing a
permitting requirement that's very clearly established elsewhere in its regulations.
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Mr.Lell:
By the same token, the March 3rd letter is not and cannot be a final land use decision under the Land Use
Petition Act both under the plain language of RCW 36700O20, and the three precedential cases that the
city cited in its opening statement today, the Harrington case, the WCHS case and the Stengel's family
trust case. Finally, there wasn't much testimony concerning this point.
Mr.Lell:
But since it was at least briefly touched on by Mr. Davidson in his testimony, and also raised at least
peripherally in the appellant's notice of appeal, the issue of the estimated cost of compliance in this
context is something that I will very briefly respond to. First of all, that's not an issue that's really properly
before the examiner. The city has not required any particular corrective measure in its original January 6,
2020 NOV.
Mr.Lell:
It hasn't required any specific measure in the NOV, that's at issue in this appeal, which is the December
18th, 2021. So it's premature to talk about the expense of particular avenues for compliance, when those
really haven't been identified or were never really mandated by the city, in the first instance. Second, and
in a related point, you heard Mr. Elliott refute, the contention of a million dollar or otherwise
disproportionately excessive cost of compliance that Mr. Davidson had referred to.
Mr.Lell:
And Mr. Elliott did indicate that whatever remedial measure would be appropriate here could be
presumably accomplished for a much lesser price point, whether using some type of modular wetland
approach and, or through a simple retention pond. So we'll be happy to explain those points further in a
post -hearing brief, but in the city's view, in summary, we do not believe that the appellant has met its
appellate burden in this proceeding, and we feel that the appeal should be denied.
Mr. Examiner:
Okay. Thank you, Mr.Lell. Mr. Lynn, did you want to make any comments in a wrap?
Mr. Lynn:
Yes. I will likewise limit. I think this case shows exactly why finality is so important. Basically what
happened in this case was that the city had expected this property to be paved. It did everything he could
to bless it prior to this event. Finally, the event triggered it. It was the catalyst for paving, but that was
something the city expected and actually wanted. I think if it we're candid about it.
Mr. Lynn:
So, Corliss paved the property, in short order and as a quick response to the city's directive. And now the
city is advising that there were very significant constant consequences to that. Not only would Corliss have
saved the cost of paving, but it could have avoided what in any event will be a significant remedy here. If
they have to tear out that pavement, that will be significant.
Mr. Lynn:
If they have to upgrade, that will be significant. Maybe the $2 million price tag isn't the solution that will
be sought, but under the one that Mr. Elliott suggested, there would be an aboveground pond that would
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use up land making it unavailable. So you have to take into account the price of that land too. The
important thing though, is that, the die was cast, consequences resulted from that, and that's why actions
like that have to be fined.
Mr. Lynn:
So quickly on the code, it's interesting that the city has some hybrid here where this is supposedly under
a warning, but put yourself in the position of the Corliss' or as their lawyer, you get a certified mail letter
from the city, which by the way, uses the same stationary, whether they're sending in a permit issue or a
water quality issue, the letter says, you're in violation of the code, you've got this amount of time to come
into compliance, you've got to take these steps, and if you don't, these are the consequences that befall
you.
Mr. Lynn:
That is a notice, an order to correct, that city may have semantically not posted the property or done
something else. But I know that had the Corliss' has come to me and said, "Is this an appealable order?"
I'd say, "Heck yes, we'd better assume that this is an appealable order." It was very formal, it looks to me
like a notice, an order to correct.
Mr. Lynn:
And I think that triggers a variety of consequences which you're going to ultimately have to deal with. But
LUPA is also applicable that paragraph C of 36700020, two, says one of the things that's a land use decision
is the enforcement by a local jurisdiction of ordinances, regulating the improvement, development,
modification, maintenance, or use of real property.
Mr. Lynn:
That's exactly what we have here, and this was a land use decision that was appealable under LUPA,
nobody appealed it, and we contend that the outcome here, the approval by the city of the paving was
the final action, no longer subject to challenge. That's all.
Mr. Examiner:
Okay. Thank you, Mr. Lynn. Thank you Mr.Lell, and everyone else who participated today, I have a lot of
information to go through. I look forward to the final briefing, I find these issues very interesting. I don't
know if there are many people in the State of Washington that do, but fortunately I do, and I'm happy to
go through the several hours of testimony today to sort all that out.
Mr. Examiner:
So again, thank you for participating and I will have a decision out in the next couple of weeks. Let's set
the deadlines, the... Mr.Lell, how much time do you need for your response brief? And you're on mute,
Mr.Lell, still. You need to unmute yourself. There you go.
Mr.Lell:
I would request a week and I believe that a week from today is actually a State holiday -
Mr. Examiner:
Right. President's day.
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Mr.Lell:
So, week from tomorrow.
Mr. Examiner:
Yeah. That's okay. Mr. Lynn, any problem with that?
Mr. Lynn:
Nope, that's fine and -
Mr. Examiner:
Okay. And for your reply brief, how much time do you want?
Mr. Lynn:
The same, if we could.
Mr. Examiner:
Another week. Okay. And Mr.Lell, any problem with that?
Mr.Lell:
No objection.
Mr. Examiner:
Okay. So the Mr.Lell's brief for the city then will be due on February 16th and Mr. Lynn's reply brief will
be due on the February 23rd. And I take it, no new evidence allowed. This is just argument, right?
Mr. Lynn:
Right.
Mr. Examiner:
That's our understanding?
Mr. Lynn:
Yes.
Mr.Lell:
Yes. Okay.
Mr. Examiner:
So, we'll keep it that way, no new documents or declarations or anything, just stick to the record that you
have before you. Also, I've just started experimenting a little bit, but I found an online transcription service
that gets out a transcript within a couple of days and I'll email that to the parties, if that helps them in
their briefing and all. So.
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Mr.Lell:
Thank you.
Mr. Examiner:
All right. Great. Again, thank you for your participation and we are adjourned for this afternoon.
Mr.Lell:
Thank you.
Mr. Lynn:
Thank you.
PART 4 OF 4 ENDS [01:41:46]
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