20201112 SWC MDNS Att. 1 - 20201023 CommentAttachment 1
Attachment 1
LAW OFFICES OF Jo RIC111 ARD ARAMB,lJR,IJ PLLC
705 Second Avenue, Swine 1300
Seattle, WA 98104-1797
Telephone 206.625.9515
Facsimile 206.682.1376
October 23, 2020
Stacey Welsh
Federal Way City Hall
33325 8t" Avenue South
Federal Way, Washington 98003
www.aramburulaw.com
www.aramburu,eustis.com
Via Email:
Stacey.Welsh@
cityoffederalway.com
Re: MDNS for Woodbridge Warehouse "B" Development (File No. 17-104237-SE)
Dear Ms. Welsh:
This office represents Save Weyerhaeuser Campus (SWC), a Washington nonprofit
corporation organized and existing to protect and preserve the community and natural
values of the former Weyerhaeuser Campus and adjacent areas. SWC has been active
over the past several years in providing comment on proposals by Industrial Realty
Group (IRG) to develop three projects on the former Weyerhaeuser Campus.
On October 9, 2020, the Federal Way SEPA Responsible Official issued a Mitigated
Determination of Nonsignificance (MDNS) for the proposed Woodbridge Warehouse
"B," a 214,050 square foot general commodity warehouse with 245 parking spaces on a
16.85 acre site (hereinafter Warehouse B). The proponent is Federal Way Campus
LLC. The comment period for this proposal ends on October 23, 2020.
This letter constitutes SWC's comments on the Warehouse B proposal. In summary,
the MDNS was issued in error for two reasons. First, the City did not adequately
consider the impacts of the entirety of the IRG proposals on the former Weyerhaeuser
Campus, including Greenline Warehouse "A" (File No. 16-102948-SE) and the
Woodbridge (formerly Greenline) Business Park (File No. 17-105491) as well as
Warehouse B. These overall proposals clearly would have significant adverse impacts.
Secondly, the impacts of Warehouse B alone create a reasonable likelihood of more
than a moderate adverse impact on environmental quality. In either case, the currently
issued MDNS should be withdrawn and scoping should begin for preparation of a full
environmental impact statement.
This comment letter incorporates the comments provided by SWC on the Greenline
Business Park proposal by letter dated May 29, 2018, attached hereto (see Attachment
A) and incorporated by this reference. In that letter, SWC indicated that the Greenline
Business Park and Warehouses A and B should be consolidated for land use and
October 23, 2020
Page 2
environmental review.' The cumulative impacts of these three projects should be
considered.
STANDARDS FOR ISSUANCE OF A THRESHOLD DETERMINATION.
Under the SEPA rules the City must determine whether a proposal "is likely to have a
probable significant adverse environmental impact." WAC 197-11- 330(1)(b). A single
significant impact is enough to warrant an EIS, but also "(c) Several marginal impacts
when considered together may result in a significant adverse impact" Id. at
330(3)(c). Here there are several impacts that must be considered, including impacts on
historic resources, as outlined by letters from King County, the State of Washington
Department of Archaeology & Historic Preservation (DAHP), the Cultural Landscape
Foundation and other agencies and individuals that submitted comments to the City
regarding the Weyerhaeuser Campus. SWC has read these letters, agrees with them
and incorporates them by reference herein.
PROJECT PROPOSAL.
The application, according to the MDNS, is for a "general commodity warehouse." This
use sets a number of environmental parameters, trip generation parameters, standards
regarding release of air pollution, the need for limitation of impervious surfaces, etc. to
address expected environmental impacts. For reasons stated herein, SWC believes
that the MDNS has been issued in error.
IRG has represented, however, in its filings before the U.S. Army Corps of Engineers
(USACE) other possible uses for Warehouse B (and Warehouse A). Accordingly, the
City's decision should explicitly provide that the MDNS is issued solely for the "general
commodity warehouse" and will become null and void if there is any change in use for
the proposal. If the use of the site, or use of the building, changes from the explicit
application before the City, the permit and development process, including SEPA,
should start over with the new project information.
CUMULATIVE IMPACTS.
As noted in our May 29, 2018 letter and reinforced by Hearing Examiner and court
decisions, the environmental impacts of Warehouse A and B and Greenline Business
Park projects must be reviewed cumulatively. Comments herein supplement our 2018
letter.
The Greenline Business Park has also been under consideration for several years, in
'IRG has rebranded its projects on the former Weyerhaeuser site as the "Woodbridge" proposals.
Because SWC's prior communications and City decisions reference the "Greenline" proposal we continue
that reference.
October 23, 2020
Page 3
parallel with Warehouses A and B. Like Warehouse A, the City has had multiple and
detailed documents before it as part of the Greenline Business Park application.
In the Warehouse A MDNS the City contended that Warehouse B and the Greenline
Business Park are complex projects that may take additional time for review, thus
environmental review under SEPA could not take place at the time of the Warehouse A
application. The City's position reflects a fundamental misunderstanding of the law.
Under WAC 197-11-055, two obligations are created for local government. First, under
Subsection 1:
The SEPA process shall be integrated with agency activities at the earliest
possible time to ensure that planning and decisions reflect environmental values,
to avoid delays later in the process, and to seek to resolve potential problems.
(Emphasis supplied.) This obligates the local government to assure that SEPA
becomes a part of local decision making. Second, under Subsection 2:
(2) Timing of review of proposals. The lead agency shall prepare its threshold
determination and environmental impact statement (EIS), if required, at the
earliest possible point in the planning and decision -making process, when the
principal features of a proposal and its environmental impacts can be reasonably
identified.
(a) A proposal exists when an agency is presented with an application or
has a goal and is actively preparing to make a decision on one or more
alternative means of accomplishing that goal and the environmental
effects can be meaningfully evaluated.
(Emphasis supplied.) Under WAC 197-11-310(2):
(2) The responsible official of the lead agency shall make the threshold
determination, which shall be made as close as possible to the time an agency
has developed or is presented with a proposal (WAC 197-11-784). If the lead
agency is a GMA county/city, that agency must meet the timing requirements in
subsection (6) of this section.
(Emphasis supplied.) WAC 197-11-784 provides that: "A proposal exists at that stage in
the development of an action when an agency is presented with an application ... "
Note that with the use of the word "shall" in WAC 197-11-310(2) the requirement is
mandatory, but the City has not issued a threshold determination for the Greenline
Business Park, despite having detailed project plans and environmental reports for
more than three years. The City's failure to act violates its obligation to issue a
threshold determination "as close in time as possible to the time an agency ... is
presented with a proposal."
October 23, 2020
Page 4
The time for the City to issue a threshold determination for the Greenline Business Park
project has long since passed. The applicant long ago submitted environmental
documents and abundant detail is available for review. SEPA requires review of the
cumulative impacts of the Greenline Business Park and Warehouse A along with those
of Warehouse B. These impacts are significant, and an environmental impact statement
is required. The MDNS should be withdrawn.
TRAFFIC IMPACTS.
The City's decision relies on a traffic study prepared by TENW on March 6, 2018, IRG
Greenline Buildings A and B Federal Way, WA Transportation Impact Study, TENW
Transportation Engineering NorthWest (March 6, 2018). The court has clearly directed
the City, however, to consider the traffic impacts of the Greenline Business Park and
Warehouse A, along with other traffic impacts, in evaluating the traffic impacts of
Warehouse B. Rather than conduct the necessary analysis, however, the City imposes
a vague condition, in Mitigation Measure #11, that "cumulative traffic impacts" from
Warehouse A, Warehouse B and the Greenline Business Park on the S.R. 18
westbound ramp intersection with Weyerhaeuser Way "shall be evaluated and
mitigated" in SEPA documents. SWC believes this and other traffic -related conditions
are incomplete and inadequate, for several reasons.
1. The City has in hand, for Warehouse A, an updated traffic study showing a
continued loss of service (LOS) failure and a conflicting conclusion of no LOS failure.
Both are relevant to and need to be evaluated for Warehouse B, and the differences
reconciled in the public record, allowing for meaningful public review and comment.
The LOS failure is documented in the updated Traffic Impact Analysis for Warehouse
A, dated March 24, 2020. It concluded that the cumulative impacts of Warehouses A
and B and the Greenline Business Park will continue to cause a LOS failure (level E, in
violation of WSDOT standards) at the intersection of Weyerhaeuser Way S and SR-18.
On April 6, 2020, TENW followed up with an analysis of how the costs of mitigating the
increased traffic levels should be allocated among IRG's projects. These costs would
be minimal, though, because TENW had recommended shifting IRG's mitigation
responsibility to the driving public: it suggested that WSDOT merely re -time the traffic
signal to bring impacts below the LOS threshold.
WSDOT, on reviewing the TIA, declined to commit to changing the SR-18 light timing
and took issue with TENW's characterization of any such action as mitigation. Swires,
Mike & Maan, Sidhu, Memorandum to Ramin Pazooki & Duffy McColloch re
Woodbridge Business Park —Updated Traffic Impact Analysis, p. 2, Washington State
Department of Transportation (June 18, 2020). WSDOT said it was not requesting any
additional mitigation at this time. This leaves the LOS failure —a significant
environmental impact —unmitigated. The City should as a result be requiring an EIS for
Warehouse A.
October 23, 2020
Page 5
For reasons that are not clear in the record, however, on July 22, 2020, TENW
submitted a short "SEPA analysis addendum" to the City referring to a new, July 17,
2020 updated TIA for the three projects. In contrast to the March 24 TIA (and the
previous TIA presented to the Hearing Examiner), the "addendum" said the new TIA
concluded there would be no LOS failure at the SR-18 intersection. Remarkably, it said
the delays at the intersection after all three projects are built (47.5 seconds) will be
lower than the delays without any of the projects (53.1 seconds, as reported in previous
studies).
The new TIA obviously raises questions about its methodology and assumptions. To
our knowledge, however, it is not included in the record for Warehouse A or Warehouse
B. We do not know whether it was presented to WSDOT for review, nor whether its
assumptions are realistic, and whether it otherwise protects the State's interests.
Consideration of these impacts is required not only by SEPA, but by FWCC
19.90.120(2), which requires:
...consideration of the cumulative impacts of all development permit applications
for contiguous properties that are owned or under the control of the same
owner...
Instead of disclosing the more current (and conflicting) information, however, and
allowing meaningful public review and comment, the City relies on a 2018
transportation impact study that is now more than two and one-half years old for SEPA
analysis in an October, 2020 MDNS.
This lack of disclosure is inconsistent with SEPA and denies the public the information
needed to make meaningful comments on a project. Mitigation Measure 11 indicates
that cumulative traffic analysis could be included in the future, in a SEPA analysis
addendum or a revision to the Warehouse A and B TIA. It does not disclose or explain
the existence of conflicting and confusing studies covering the same property. The City
should withdraw the Warehouse B MDNS for this reason alone until the record is
complete and the public has had the chance to evaluate it.
2. Mitigation Measure 8 also discussed traffic volumes and impacts for travel to
and from the site, including origins or destinations north of the site. Because of the
impact of such traffic on residential and commercial areas north of the site, and
continuing congestion concerns at South 3201", including impacts from 1-5 off and on
ramps, the City should require that the applicant prohibit all trucks using the facility from
using Weyerhaeuser Way north of the site and require installation of traffic control
measures to enforce that requirement. This would include contract provisions with
customers and users of Warehouse B, prohibiting access from the north.
October 23, 2020
Page 6
The reports conducted on the campus's historic values, discussed below, find that the
curving, tree -lined roads are an important aspect of the environmental and historical
value of the campus. Mitigation Measure 8 would allow IRG to eliminate those curving
roads with ease, and with little further review of the impacts. The City believes that IRG
will balk at the costs of rebuilding these roads, but that is an untested assumption. One
can easily envision the opposite outcome: that a wide, straight thoroughfare allowing
industrial trucks to run parallel to a crowded I-5 would be well worth the cost for IRG.
Without real legal and contractual restrictions, the City is relying on an untested belief
as its only mechanism to avoid serious, adverse impacts to the quality of the
neighborhoods and the historic nature of the campus. We object strongly to the gamble
the City is engaged in, essentially pre -approving a new industrial truck route without
even a minimal evaluation of its environmental and other consequences.
3. The cumulative impacts discussed in Mitigation Measure #8 should not be
limited to impacts to S.R. 18, but consider all impacted intersections and roadways in
the City of Federal Way or other impacted areas.
IMPACTS ON HISTORIC RESOURCES.
The impacts to historic resources of the current proposal, taken individually and
cumulatively with Warehouse A and the Greenline Business Park, are significant and
require either the preparation of an environmental impact statement or significant
mitigation. The City's analysis of these impacts for Warehouse B relies on incomplete
and outdated information. The MDNS is not supported and should be withdrawn.
The historical importance of the former Weyerhaeuser corporate campus is
exceptional. This is evidenced by IRG's own consultant, Cardno, Inc., in identifying it as
a historic district eligible for listing in the National Register of Historic Places. Cardno
prepared a Built Environment Survey, a report submitted to the U.S. Army Corps of
Engineers (USACE) and the Washington Department of Archaeology and Historic
Preservation (DAHP)2. According to the Built Environment Survey, p. 6-3:
The former Weyerhaeuser Corporate Headquarters campus is an exceptional
example of built heritage that responds to its Northwest context by integrating
buildings and landscape into a synergistic whole while using materials, design,
and workmanship to reflect the corporate identity projected by the Weyerhaeuser
Company at this time in its history. The campus is also an outstanding example
of the work of landscape architect Peter Walker (SWA) and architect Edward
Charles Bassett (SOM). The former Weyerhaeuser Corporate Headquarters
campus is recommended eligible for listing in the NRHP as a historic district ...;
2 Michelle Sadlier et al., Built Environment Survey of the Former Weyerhaeuser Corporate Headquarters
Campus, Federal Way, Washington, Cardno, Inc. (July 29, 2020).
October 23, 2020
Page 7
The former Weyerhaeuser Corporate Headquarters campus, as defined below,
is a historic property so exceptional in historical and design importance that it
has achieved significance within the past 50 years.
Unfortunately, the City did not consider the Built Environment Survey in its SEPA
analysis on Warehouse B. Instead of referencing that 150+ page report, the SEPA
records reference a one -page Memorandum from Cardno to IRG, Built Environment
Survey of the Former Weyerhaeuser Corporate Headquarters Campus for Compliance
with Section 106 of the NHPA — Comments on SEPA Compliance for Woodbridge
Building B, Cardno, July 27, 2020 (Cardno SEPA Memo).
The Cardno SEPA Memo states the consultant's opinion that the impacts of
Warehouse B on the campus's historic resources are not significant under SEPA. This
reflected a similar opinion Cardno expressed in another report, on the effects of
Warehouses A and B under the National Historic Preservation Act.' Cardno has since
revised that second report, to reach the opposite conclusion:
Cardno recommends that the Woodbridge Building A and Woodbridge Building
B projects, along with their associated detention pond, will have an adverse
effect on the Weyerhaeuser Corporate Headquarters Historic District by
diminishing the integrity of the recommended contributing 50-foot buffer east of
Weyerhaeuser Road and the driving views the buffer provides.
(Emphasis provided.) Michelle Sadlier et al., Evaluation of Effects for the Proposed
Woodbridge Building A and Woodbridge Building B Projects, Federal Way,
Washington, Cardno, Inc., p. i (September 14, 2020). The City thus acted on
incomplete and outdated information in its MDNS decision on Warehouse B.
Even under Cardno's former position, however, the City's conclusions about the effects
of Warehouse B on historic values are incorrect. The applicant contends, and the City
appears to rely heavily on the idea, that the visual impacts of its industrial warehouses
are mitigated by a fifty -foot tree buffer. The tree buffer is inadequate, however, for three
reasons.
First, assessing the impacts of Warehouse B alone is not appropriate; the
impacts of Warehouse A., at least, should be included as they are adjacent to one
another and no construction has begun on Warehouse A.
Second, the site for Warehouse A and Warehouse B is a substantial wooded
area that should be included as part of the Historic District or a contributing area
thereto. We agree with the Washington Trust for Historic Preservation's position that
' Michelle Sadlier et al., Evaluation of Effects for the Proposed Woodbridge Building A and Woodbridge
Building B Projects, Federal Way, Washington, Cardno, Inc. (September 14, 2020).
October 23, 2020
Page 8
the entire wooded parcel is a contributing feature of the National Register eligible
district, not just the 50-foot buffer and driving views recommended by Cardno. The
U.S. Army Corps has not taken a position on this issue, and we expect it will be the
subject of well-informed stakeholder debate. We believe the destruction of the interior
forest stands for construction of Warehouse B would be a significant adverse
environmental impact requiring the preparation of an environmental impact statement or
significant mitigation.
And third, the minimal fifty -foot tree buffer is physically inadequate to buffer and
protect the campus's historic values, and the City's analysis has not taken into account
the expected loss of trees to windthrow and other edge effects.
Buffers must "obscure Warehouse [B] from sight," to quote the standard articulated by
the Hearing Examiner', to avoid probable significant adverse impacts to historic
resources. It is clear from the visual studies submitted to the City that Warehouse B will
be visible from the road, not "out of the way," and will cause adverse impacts. -See the
photos in Greenline Building B, Visual Impact Analysis, ESM Consulting Engineers
(August 10, 2018).
As ESM notes, the buffers around Warehouses A and B are already sparse. In addition,
50' is too narrow to protect against the inevitable loss of trees from windthrow and other
edge effects once the site is disturbed. IRG's arborist pointed out the risk of loss of
trees in Brian Gilles, Managed Forest Buffer Management Plan at the Greenline
Building B Site, Gilles Consulting (rev. June 26, 2018). On pages 5-6 he describes this
well-known phenomenon in Pacific Northwest forests:
Tree Risk Assessment must be taken seriously on this project and all of the
Campus development projects. This is due to the physiology of the trees
themselves, their growth in dense stands, the soils, and the large storms that
descend upon the region irregularly. When trees grow in a forest such as this,
they depend on the trees around them to buffer them from the wind and other
storm impacts. This results in a different physically structured tree than the same
species of the same age growing in an open setting such as a field, a park, or a
pasture.
Trees growing in a dense forest are tall and skinny. They do not have broadly
tapered bases or large buttress roots. They do not need them due to the
buffering effect of the forest as a whole. Their job is to grow tall and fast to catch
sunlight. If they do not keep up with the neighboring trees, they get shaded out
and slowly decline and die. Therefore, their internal resources are spent on
height growth.
4 Findings of Fact 13, Hearing Examiner decision.
October 23, 2020
Page 9
This is relevant and important in that, when dense forest trees are suddenly
opened to the wind and storm elements, by clearing of adjacent trees, they
are instantly vulnerable to windthrow in severe weather. This is because, as
noted above, they do not have adequate structure in their lower trunks and
buttress roots. This can be seen when driving forested lands in the northwest
and looking at wind -thrown trees at the edges of recent clear cuts.
Foresters have known this for over 100 years and have a term for it. They call
it, "New Edge." New Edge refers to the trees on the edge of a recent clear-cut.
There can be a high percentage of tree failures near the `new edge' created by
the clearing/logging of trees in a dense forest due to the growth characteristics
noted above. It can take a tree or line of trees along a newly cleared edge many
years to develop larger and roots and lower trunks to withstand large storm
loads.
Soils and saturated soils also play a huge role in tree risk assessment. The
region is known to have areas of hard pan or clay deposits below the surface.
Water can build up on top of these impenetrable layers and restrict roots from
penetrating deep. This can predispose a tree to fail if it is growing over one of
these dense layers and the soil is saturated and a storm overloads the strength
of the roots and soil.
The last comment about saturated soils is especially relevant here. The buffers most
vulnerable to windthrow are those on the windward side of the buffer (i.e., the down-
wind side of new openings). Because Federal Way's prevailing winds are from the
Southwest (especially during storms), the City should expect damage to the buffers
between Warehouses A and B and Weyerhaeuser Way S, the very buffers that are
most needed to block the driving views from the road. Compounding the problem,
IRG's documents have identified at least three wetlands in the managed forest buffer
along Weyerhaeuser Way S. Any trees growing in these wetland soils are even more
likely to come down after they lose the stands behind them. This will open even more
holes in the buffers, further increasing the visibility of the buildings.
How wide does a buffer need to be to resist windthrow and other damaging edge
effects? This was a major issue in Pacific Northwest forests in the late 90s as practices
improved to protect water bodies and fish habitat. According to experts, microclimate
effects generally extend about "one to three tree heights into forests," or roughly 100' to
600' considering all impacts. Rochelle, James A. et al., Forest Fragmentation: Wildlife
and Management Implications, p. 117, Brill (1999). On federal forest lands, scientists
used 300' as a conservative buffer to protect streams in the Northwest Forest Plan.
Washington's forest practice rules adopted stream buffers ranging from 100' (50' on
each side) to over 300' (both sides) under the 1999 Forests and Fish Agreement. The
EIS on Washington's rules used 75' as the minimum width for a riparian management
October 23, 2020
Page 10
zone (RMZ) for an "acceptable" amount of blowdown, which science suggests will still
be 15-20% of the trees. According to the EIS:
Another important aspect considered when evaluating the alternatives was
susceptibility to windthrow or blowdown. If an RMZ experiences substantial
windthrow, it may not be capable of maintaining desired functions.... The RMZs
under all alternatives are likely to experience some degree of windthrow in
localized areas. Windthrow is a normal occurrence in forests but is known to
increase along harvest unit edges after timber harvest opens formerly interior
forest trees to more direct wind effects (Harris 1989).
RMZs along streams are subject to similar increases in windthrow. Several
studies have attempted to define the relationship between riparian windthrow
and various physical and biological features such as topography, valley
morphology, aspect, slope, soil wetness, and tree type (Steinblums et al. 1984;
Harris 1989). Though these site -specific factors may increase the vulnerability of
an RMZ to wind events, no single factor has emerged as being of particular
importance on a landscape scale. However, since blowdown is generally greater
at the windward edge of a buffer, alternatives with wider RMZs would provide
more protection for riparian function.
Pollock and Kennard (1998) reanalyzed several windthrow data sets looking at
the relationship between buffer width and the likelihood of windthrow. They
reached the conclusion that buffers of less than 75 feet have a higher probability
of suffering appreciable mortality from windthrow than forests with wider buffers.
Data for blowdown within buffers from seven studies reported in Grizzel and
Wolff (1998) had a mean windthrow level of about 15 percent for 344 sites in
western Washington and Oregon with maximum windthrow levels ranging from
17 to 100 percent. Median windthrow levels were usually somewhat lower than
the mean because the data are not normally distributed with relatively few sites
having extensive blowdown. For example, the mean windthrow level for sites
reported by Andrus and Froelich (1986) was 21.5 percent while the median value
was 15.5 percent (i.e., half of the sites had less than 15.5 percent windthrow).
Windthrow levels in Southeast Alaska were found to average about 9 percent in
66-foot no -harvest RMZs over a 4 to 6 year period following harvest, and most
windthrow levels were less than 15 percent (Martin et al. 1998).... Susceptibility
to blowdown is addressed as appropriate in the effects analysis using a 75-feet
buffer width as a general guideline.
U.S. Dept. of Commerce, National Marine Fisheries Service & U.S. Dept. of the Interior,
Fish and Wildlife Service, Final Environmental Impact Statement, Chapter 4, p. 4-105.
The City needs to reevaluate its buffer requirements to factor in the predictable loss of
October 23, 2020
Page 11
10-15% of all of the significant trees plus the loss of most or all of the trees on wetland
soils. These impacts will be significant, and planting new trees will not be enough to
take their place. It will be decades before new trees provide the height, width, and depth
of crown provided by the existing forests on the Weyerhaeuser campus.
STORMWATER ANALYSIS.
As described above, the stormwater impacts of applicant's Warehouse A, Warehouse B
and Greenline Business Park should be considered together. IRG submitted its
environmental checklist on the Greenline Business Park project on October 13, 2016,
more than four years ago. That checklist described 1,067,000 square feet of new
warehouse facilities and 2,947,175 square feet of new impervious surface. A
preliminary stormwater analysis describing runoff from the site has been prepared.
In addition, the City has required a cumulative impact analysis for traffic at the
Warehouse B site in Mitigation Measure #11 that includes Warehouse A, Warehouse B
and the Greenline Business Park. No logical reason exists as to why cumulative impact
analysis for stormwater should not also be prepared, consistent with the City's
environmental analysis of cumulative impacts for traffic. The stormwater impacts of the
Greenline Business Park combine with those of Warehouse A and Warehouse B south
of the Campus and will flow south into the Hylebos Creek system. Given the Greenline
Business Park proposal is twice as large as the Warehouse A and Warehouse B
proposals together, the combined impact of all three projects to the Hylebos Basin will
unquestionably be significant. Further, the Greenline Business Park proposal was
initiated with the City more than four years ago, indicating the need to combine its
impacts with the Warehouse A and B proposals. See WAC 197-11-784.
CONCLUSION_
The MDNS on Warehouse B has been issued in error. The proposal, individually and
cumulatively with other proposals, will have probable significant adverse impacts on the
environment. The MDNS should be withdrawn, a determination of significance issued,
and scoping initiated for an environmental impact statement.
i erely
J. Richard Aramburu
J RA: cc
cc: Save Weyerhaeuser Campus
Attorneys at Law
J. Richard Aranburu 720 Third Avenue, Suite 2000
rick@aramburu-eustis.com Seattle, WA 98104
Jeffrey M. Eustis Tel 206.625.9515
eustis@aramburu.eustis.com Fax 206.682.1376
May 29, 2018
City of Federal Way
33325 8th Ave. S.
Federal Way, WA 98003
Attn: Brian Davis, Director
Department of Community Development
And Jim Harris
Planner
www.aramburu,eustis.com
Via Email:
Brian.Davis@cityoffederalway.com
Jim.Hards@cityoffederalway,com
Re: Greenline Business Park Application (File #17-105491);
Proposals for Warehouse A (#16-102947-00-UP, 16-102948-00-SE) and
Warehouse B (#17-104236-UP, 17-104237-SE).
Dear City of Federal Way:
This office represents Save Weyerhaeuser Campus, a Washington nonprofit
corporation organized and existing to protect and preserve the community and natural
values of the Weyerhaeuser Campus.
On May 14, 2018, the City of Federal Way determined that the application for the
Greenline Business Park (GBP) was complete. That proposal, made by Industrial
Realty Group of Los Angeles (IRG), includes the construction of three buildings totaling
approximately 1,068,000 square feet on a parcel of 146 acres and revisions to an
existing parking lot adding 806 parking stalls, which will involve, among other activities,
filling wetland and improving existing roads in the vicinity. On May 18, 2018, the City
issued a Notice of Master Land Use Application, initiating a fourteen day comment
period, The Notice indicates that the proposal will be reviewed under the
"Weyerhaeuser Company Pre -Annexation Concomitant and Zoning Agreement" (CA),
which places the property in the CP-1 zone created by the CA.
Previously, IRG submitted complete applications for two other construction projects also
located in the CP-1, Warehouses A and B. Warehouse A is a 225,950 square foot
warehouse building on 13.7 acres with 245 parking stalls; Warehouse B is a 217,300
June 4, 2018
Page 2
square foot warehouse building with 244 parking spaces immediately adjacent to
Warehouse A. The Warehouse A/B proposals will use a common access road and the
same stormwater detention pond. These two projects are owned by the same applicant
as for the Greenline Business Park. The City has not issued a threshold determination
under SEPA for either of IRG's Warehouse proposals.
In this letter, SWC provides comment on the rules, regulations and standards applicable
to the pending permit applications. First, any review of the business park proposal under
both current zoning and the State Environmental Policy Act (SEPA) must consider the
consolidated and cumulative impacts of all three pending proposals and cannot proceed
with separate, individual, fragmented review. Second, the existing rules and
regulations, including the CA, cannot be read to vest applications to rules and standards
adopted twenty-four years ago. In several specific areas, the City should apply current
standards and regulations adopted after Ordinance 94-219 (including the CA and its
zoning) was adopted in 1994. These issues will be addressed below.
1. THE CITY MUST CONDUCT COMBINED AND CONSOLIDATED REVIEW OF THE
THREE PENDING PROPOSALS.
1.1. SEPA REVIEW. Because of the background of this proposal, the City is
required to conduct consolidated land use and environmental review of the pending
applications, not segmenting or bifurcating review. This is based on the following.
A. ONE OWNER. The entire 426-acre Weyerhaeuser Campus was purchased
in 2016 by IRG, a California developer of warehouses and business parks.
B. THREE CURRENTLY PENDING APPLICATIONS. IRG has filed applications
for use of significant portions of the Weyerhaeuser Campus, including the GBPark,
Warehouse A and Warehouse B, which have all been deemed complete by the City.
These three applications will be referenced herein as the "IRG Applications." Each of
the applications is currently pending and no threshold determination has been issued for
any of them. Comments on the GBP are due on June 4, 2018.
C. SAME ZONE FOR ALL PARCELS. The IRG Applications are all in the CP-1
zone. That zone is ono applicable to the Weyerhaeuser Campus parcels and not to
any other properties in the city.
D. UNDER SEPA, THE THREE PENDING APPLICATIONS MUST BE
CONSIDERED IN A SINGLE ENVIRONMENTAL DOCUMENT.
The City of Federal Way has adopted by reference most of the Washington State
SEPA Rules, WAC Chapter 197-11, into Federal Way's code in FWC 14.05.020.
June 4, 2018
Page 3
Included in this adoption is WAC 197-11-060, including Subsection (b). This section
provides as follows-
(b) Proposals or parts of proposals that are related to each other closely enough
to be, in effect, a single course of action shall be evaluated in the same
environmental document. (Phased review is allowed under subsection (5).)
Proposals or parts of proposals are closely related, and they shall be discussed
in the same environmental document, if they:
(i) Cannot or will not proceed unless the other proposals (or parts of
proposals) are implemented simultaneously with them; or
(ii) Are interdependent parts of a larger proposal and depend on the larger
proposal as their justification or for their implementation.
In addition, WAC 197-11-060(c) provides as follows:
(c) (Optional) Agencies may wish to analyze "similar actions" in a single
environmental document.
(i) Proposals are similar if, when viewed with other reasonably foreseeable
actions, they have common aspects that provide a basis for evaluating their
environmental consequences together, such as common timing, types of
impacts, alternatives, or geography. This section does not require agencies or
applicants to analyze similar actions in a single environmental document or
require applicants to prepare environmental documents on proposals other than
their own.
(ii) When preparing environmental documents on similar actions, agencies
may find it useful to define the proposals in one of the following ways: (A)
Geographically, which may include actions occurring in the same general
location, such as a body of water, region, or metropolitan area; or (B) generically,
which may include actions which have relevant similarities, such as common
timing, impacts, alternatives, methods of implementation, environmental media,
or subject matter.
These provisions were considered in Indian Trail Property Owner's Ass'n v. City of
Spokane, 76 Wn.App. 430, 886 P.2d 209 (1994). There a shopping center
redevelopment and expansion were under review, including a large grocery store and
other features. However, two parts of the overall proposal were not included in the
original environmental checklist and threshold determination, a car wash and large
underground storage tanks, and were proposed for later environmental review. On a
challenge to this segmented environmental review, the Court of Appeals said as follows:
Cumulative Effects. We note at the onset that the responsible official's initial
evaluation of the underground fuel storage tanks separate from other phases of
the proposal was in error. Parts of proposals which are "related to each other
June 4, 2018
Page 4
closely enough to be, in effect, a single course of action shall be evaluated in the
same environmental document." WAC 197-11-060(3)(b). Here, a phased review
of the project was clearly inappropriate because it would serve only to avoid
discussion of cumulative impacts. WAC 197-11-060(5)(d)(ii). See also WAC 197-
11-060(3)(b). However, the error was cured when the original MDNS and DNS
were withdrawn, and the cumulative effects of the entire project considered
before a new MDNS was issued.
Redevelopment of the shopping district also included plans for a car wash. In 131
zones, a car wash requires a special permit. When addressing neighborhood
concerns about the noise impacts from the car wash, the hearing examiner
responded "there is no car wash in this application and a special permit must be
applied for before a car wash can be built in conjunction with this use". To the
extent the hearing examiner was approving separate SEPA review for the car
wash, he was in error. WAC 197-11-060(3)(b). However, the error was harmless
because the responsible official considered the impact of the car wash when
making the threshold determination and required mitigation measures for it.
76 Wn.App. at 443.
As noted above, the IRG Applications have a common owner (IRG), common
timing (all have complete pending applications), common geography (all on the
Weyerhaeuser Campus), common impacts and common zoning (CP-1, applicable only
to this property). The most significant impacts of the combined proposals affect traffic
and transportation, with significant impacts to off -site city roads and state highways
including 1-5 and SR 18. Complete and accurate traffic and transportation analysis
should include not only the three current proposals, but an accurate analysis for the
future use of the Weyerhaeuser Headquarters building (more than 300,000 square feet),
which is currently offered for lease by IRG to a single tenant. Currently, the traffic report
for Warehouse A, for example, does not include potential traffic from Warehouse B, the
GBP, or the Weyerhaeuser headquarters building. The projects, individually and
cumulatively, will also impact downstream water resources, including the Hylebos
stream, Milton's East Hylebos Ravine, Fife's Lower Hylebos Nature Park and associated
wetlands and habitat. The GBP proposal alone will total 1,441,000 square feet of
impervious surface.
Under the applicable regulations and caselaw, it would be error for the City to
conduct separate environmental review for IRG's proposals. The City should require
IRG to submit an environmental checklist that includes the cumulative impact of all three
projects. There appears to be little question that a proposal with more than 2,000,000
square feet of structure and other impervious surfaces will have a significant impact on
the environment and accordingly requires an environmental impact statement (EIS).
June 4, 2018
Page 5
1.2. LAND USE REVIEW. In addition, the three development proposals are
included within the "Corporate Park 1 " or "CP-1 " zone, which was adopted by the City in
Ordinance 94-219 as a part of the annexation of this and other nearby property in 1994.
The CP-1 zone only applies to the former Weyerhaeuser Campus. Ordinance 94-219
also reached certain "Conclusions of Law," beginning at page 4; these Conclusions
applied to the entire annexation area, including the property where the three pending
proposals are located. Conclusion B states that the property, as a whole, has "unusual
environmental features" and that the ordinance is the "means to preserve and protect
these natural features," again referencing the entire annexation area. Conclusion C
states that "any development in the corporate headquarters area is low density
characterized by large expanses of open space." The applicant contends that the 1994
CA controls development on the Weyerhaeuser Campus. While that is not entirely
correct, as pointed out below, it is apparent that the CA requires that the entire site be
considered when development proposals are made. For example, under Paragraph
14.2 of the CA, existing streets had "been constructed to meet capacity needs for on -
site development up to an additional 300,000 square feet of Corporate Office Park
development;" this provision regarding street capacity is applicable to the entire site.
The CP-1 zone found at Exhibit C to the CA also stresses that the entire site is to
be considered together in review and analysis. The CP-1 zone states its Purpose and
Objectives, saying that the properties in the zone:
...are characterized by large contiguous sites with landscape, open space
amenities, and buildings of superior quality. The property appropriate for such
uses is unique, and demands for such uses are rare. Consequently special land
use and site regulations are appropriate for such properties.
CP-1 Zone, page C-1. Subsection A states "This property is subject to its own unique
standards of review processes as set forth in the Agreement." Id. The same is true of
provisions for "Off -Street Parking" found in Exhibit C, in Section XIII at page C-18, that
although new development shall require compliance with applicable off-street parking
requirements:
the aggregate of all proposed and existing uses on the property may, subject to
the approval of the Director, be considered as a whole in establishing the
minimum number of vehicles spaces required, .. .
It is wholly inconsistent with the CP-1 zoning, and the background of the CA and
Ordinance 94-219, to separately consider individual projects when the City recognizes
that the proposals are located on a unique property. This is especially true when IRG,
the property owner, has three complete and pending applications to use substantially all
of the CP-1 zoned area. Based on the foregoing, it is apparent that since 1994 the City
has considered the Weyerhaeuser Campus unique and has adopted unique standards
June 4, 2018
Page 6
of review applicable to the entire site. Site development, by a common property owner,
must be considered as a consolidated whole for permitting purposes.
2. THE CITY IS REQUIRED TO APPLY CURRENT CODES AND STANDARDS, NOT
THOSE IN EFFECT IN 1994.
As noted above, Ordinance 94-219 is now twenty-four years old, but the
applicant for the three pending projects claims that the ordinance, and the CA, vest
these new proposals to rules, regulations and standards in effect when the ordinance
was adopted. The City should reject that proposition and apply current adopted
standards.'
The applicant seeks to apply certain provisions of the CA to its current land use
applications. Among others, the applicant asks the City to follow certain criteria in
review of its proposals, including the following provisions of the development agreement
that are contrary to codes.
1) The agreement "not to require any dedication or conveyance of the Property or
any portions thereof for public purposes ....
Paragraph 12, page 10.
2) Agreement to consider roads adequate for the addition of 300,000 square feet
of new Corporate Office Park development that might be located anywhere on
the site.
Paragraph 14.2, page 11.
3) Agreement that the property owners "shall be vested for purposes of roadway
capacity requirements and any concurrency requirements and Weyerhaeuser
shall not be required for pay for any new public streets within the Property area
or traffic mitigation fees for these streets in connection with the Additional
Development.
Paragraph 14.2, page 11, Paragraph 15, page 13.
4) Agreement that areas of the Property which are "classified as environmentally
sensitive" shall comply with the critical areas ordinance in effect in 1994, except
for special provisions found at pages C-12 to C-18.
Exhibit C to Ordinance 94-219, Section XII.
Washington law is clear that no city may establish fixed land use and
development regulations that cannot be ever modified or changed.
As described above the City should consider IRG's three pending proposals together as a single
application following evaluation of the whole proposal under SEPA.
June 4, 2018
Page 7
A) Washington Law Prohibits One Legislative Body from Binding Future
Councils.
The effect of the CA as interpreted by the applicant is that no later rules,
regulations, legislation or council action can modify the agreement; it is permanent and
never capable of modification. This concept is not consistent with Washington law for
the following reasons.
Under settled Washington law, a municipality "cannot enter into contracts binding
on future boards of commissioners." See State ex. rel. Schlarb v. Smith, 19 Wn.2d 109,
112, 141 P.2d 651 (1943). See also Miller v. City of Port Angeles, 38 Wn.App. 904
(1984) where it is recognized that a local government cannot contract away its police
power. It is recognized that this rule must be construed in the context of whether the
contract involves its legislature function or its administrative/proprietary function. This
issue was considered in some detail in AGO 2012, No. 4, which concluded as follows:
If a contract impairs the "core" legislative discretion, eliminating or substantially
reducing the discretion future bodies might exercise, the courts are likely to find
that the contract has improperly impaired the legislative authority of future
commissioners."
Moreover, the CA permits deviations from the current city standards. For example, at
Paragraphs 14.2 and 15, the CA prohibits the city from collecting impact fees for an
additional 300,000 square feet of corporate office development, an indulgence not
permitted under existing codes. Similarly, Section XII of the CP-1 zoning allowed
deviations from even the then -existing sensitive area ordinances, making it inconsistent
with those codes. Indeed, Paragraph 4.1 of the CA (page 5) specifically provides that
"to the extent Federal Way policies impose development standards conflicting with this
Agreement, this Agreement shall control." Accordingly, the CA, which is claimed to bind
all Federal Way councils forever, is ultra vires.
It is also important to note that the CA in question is different from contract
rezones or other similar legislative actions. These agreements ordinarily set forth what
will, or will not, be done on a property as a part of a rezone; in such cases, the work will
be completed as a part of the contract rezone. The CA here is not related to any project
proposed when it was executed; its sole intention is to limit the authority of the City to
take actions in the future and to allow undefined future development.
B) Washington Law Regulating Annexation Zoning Ordinances Does Not Permit
Ordinances That Last Forever.
As a city formed under the Optional Municipal Code (OMC), RCW Title 35,
Federal Way must comply with the terms of chapter 35.14 when annexing new territory.
June 4, 2018
Page 8
In particular, RCW 35A.14.330 allows an OMC city to prepare a zoning regulation to
become effective in an area to be annexed. Subsections (1) and (2) define the scope of
a potential pre -annexation zoning, while subsection (4) provides as follows:
(4) The time interval following an annexation during which the ordinance or
resolution adopting any such proposed regulation, or any part thereof, must
remain in effect before it may be amended, supplemented or modified by
subsequent ordinance or resolution adopted by the annexing city or town.
As described, this legislation allows an OMC city to establish only a "time interval"
during which the pre -annexation zoning regulation "must remain in effect." Without such
a "time interval," a local legislative authority could amend the interim zoning ordinance
at any time, as described above.
RCW 35A.14.330(4) plainly requires zoning have a "time interval" during which
the pre -annexation zoning will be binding before it may be amended or modified.
Nothing in this statute allows the local government to make permanent pre -annexation
zoning, any more than zoning adopted pursuant to the planning and zoning chapter of
the OMC, chapter 35A.63, could be made permanent.
The statute is supported by Washington caselaw regarding the permanency of
zoning, as discussed in Bishop v. Town of Houghton, 69 Wn.2d 786, 792, 420 P.2d 368
(1966):
We have no quarrel with respondents' basic theme to the effect that while zoning
implies a degree of permanency, it is not static and zoning authorities cannot
blind themselves to changing conditions. Thus, when conditions surrounding or in
relation to a zoned area have so clearly changed as to emphatically call for
revisions in zoning, the appropriate zoning authorities are under a duty to initiate
proceedings and consider the necessity of pertinent modifications of their zoning
ordinances. Otherwise, outmoded zoning regulations can become unreasonable,
and the zoning authorities' failure to suitably amend or modify their ordinances
can become arbitrary, in which event courts can and should grant appropriate
relief. 2 Metzenbaum, Zoning, 1125 (2d ed. 1955).
Land use regulations cannot be frozen in time nor be immune to new priorities,
changed circumstances, scientific study or community needs.
A zoning ordinance that can never be modified is inconsistent with the authority
granted to the City of Federal Way and is thus void.
June 4, 2018
Page 9
C) The GMA Requires Updating of Development Regulations on a Periodic
Basis; The CA Cannot be Immune from the Obligation of Continuing Review.
Federal Way is not only subject to the rules established by the OMC, but also to
the Growth Management Act, RCW chapter 36.70A (GMA). One of the obligations
imposed by the GMA under RCW 36.70A.130 is for continuing review on a periodic
basis. Under this statute each local Comprehensive Plan and the local development
regulations:
shall be subject to continuing review and evaluation by the county or city that
adopted them. Except as otherwise provided, a county or city shall take
legislative action to review and, if needed, revise its comprehensive land use
plan and development regulations to ensure the plan and regulations comply with
the requirements of this chapter according to the deadlines in subsections (4)
and (5) of this section.
(Emphasis supplied.)2 Subsection (1)(c) further states: "(c) The review and evaluation
required by this subsection shall include, but is not limited to, consideration of critical
area ordinances...." These sections requiring periodic review were imposed by the
legislature after the adoption of Federal Way's Ordinance 94-219 in 1994. The
provisions are to assure that local government regulations remain current with scientific
advancements and needs of the community. In addition, when considering amendment
of a comprehensive plan or development regulations, the City is obligated to "establish
and broadly disseminate to the public a public participation program identifying
procedures providing for early and continuous public participation in the development
and amendment of comprehensive land use plans and development regulations
implementing such plans." RCW 36.70A.140.
As it relates to critical areas, since the adoption of Ordinance 94-219 by the City,
new legislation has modified the content of critical area rules. In 1995, the Legislature
adopted RCW 36.70A.172, which requires as follows:
(1) In designating and protecting critical areas under this chapter, counties and
cities shall include the best available science in developing policies and
development regulations to protect the functions and values of critical areas. In
2 Use of the word "shall" by the legislature has a distinct meaning in Washington jurisprudence:
Moreover, "shall" when used in a statute, is presumptively imperative and creates a mandatory
duty unless a contrary legislative intent is shown. Phil. 11 v. Gregoire, 128 Wash.2d 707, 713, 911
P.2d 389 (1996); State v. Krall, 125 Wash.2d 146, 148, 881 P.2d 1040 (1994).
Goldmark v. McKenna, 172 Wn.2d 568, 575, 259 P.3d 1095, (2011).
June 4, 2018
Page 10
addition, counties and cities shall give special consideration to conservation or
protection measures necessary to preserve or enhance anadromous fisheries.
This section mandated that local governments take account of best available
information in adopting critical area regulations, including publications such as
"Wetlands in Washington State - Volume 2: Guidance for Protecting and Managing
Wetlands." See https:Hfortress.wa.gov/ecy/publications/summarypages/0506008.html.
As noted above, the applicant seeks to opt out of these provisions by reliance on
Ordinance 94-219. However, the City has recently adopted Ordinance 15-797, codified
as Chapter 19.145 of the Federal Way Code, which regulates Environmentally Critical
Areas (ECA) in the City. The purpose of this ordinance is as follows:
The purpose of this chapter is to protect the environment, human life, and
property from harm and degradation. This is to be achieved by precluding or
limiting development in areas where development poses serious or special
hazards; by preserving and protecting the quality of drinking water; and by
preserving important ecological areas such as steep slopes, streams, lakes and
wetlands. The public purposes to be achieved by this chapter include protection
of water quality, groundwater recharge, stream flow maintenance, stability of
slope areas, wildlife and fisheries habitat maintenance, protection of human life
and property and maintenance of natural stormwater storage and filter systems.
FWC 19.145.010. FWC 19.145.015 provides as follows: "Except as otherwise
established in this chapter, if a proposed development activity requires city approval,
this chapter will be implemented and enforced as part of that process." FWC
19.145.020 clarifies its application: "The provisions of this division apply throughout the
city and must be complied with regardless of any other conflicting
provisions of this
title." The provisions of this title that do not conflict with the provisions of this division
apply to the subject property. Conflicts with the CP-1 zoning are resolved in favor of the
adopted critical area ordinances.
Accordingly, the property in the CP-1 zone must be consistent with the revised
ECA ordinance; no provision of the current code exempts the CP-1 zone from its
application or allows a completely out of date code to be applied in the city.
D) The Attempt in the CA to Vest to Future Permit Activity is Inconsistent with
Washinaton Law.
In 1987, the Washington Legislature established the rules for vesting of
development applications in RCW 19.27.095 and 58.17.033. In this legislation, either a
building permit or a plat would vest when a "fully complete application" was made. As
noted in Snohomish County v. Pollution Control Hearings Board, 386 P. 3d 1064, 187
June 4, 2018
Page 11
Wash. 2d 346, 105 Wash.2d 778, 789, 719 P.2d 531 (2016): "Washington's vested
rights doctrine originated at common law, but is now statutory", citing Town of Woodway
v. Snohomish County, 180 Wn.2d 165, 173 (2014) (emphasis supplied).
The applicant here claims that it is vested to 1994 standards by virtue of the CA,
but the terms of Washington law do not allow vesting in advance of the filing of a
complete building permit or plat application. There was no complete building permit or
plat application filed when the CA was agreed to in 1994. Our courts have held that the
statutory vesting doctrine only applies when an applicant files "a completed application
for a building permit." Potala Village Kirkland, LLC v. City of Kirkland, 183 Wn.App. 191,
334 P.3d 1143 (2014). In Potala, the Court rejected the proposition that an application
for a substantial development permit would vest rights against zoning changes.
In the present case, the applicant claims the Pre -Annexation Zoning Agreement
and the CP-1 Zoning in the CA vest it to development regulations in effect at the time,
some twenty-four years ago. But, nowhere has the legislature adopted a rule that
allows pre -annexation zoning under RCW 35A.14.330 to vest development rights. The
rules established in 1987 codified the vested rights doctrine and limited its application to
building permits, plats and later (1995) development agreements. Attempts to vest
rights based on this pre -annexation zoning are not effective and any review of the
current applications should be consistent with existing land use regulations and
controls.
3. CONCLUSION.
The applicant's proposals violate basic standards for review.
First, with three complete applications on the CP-1 zoned property, Washington
law and local ordinances require that project review be consolidated. This applies not
only to review for consistency with the city codes, but also SEPA review and analysis.
An environmental checklist should be prepared that identifies and reviews the entirety of
the three pending applications. This does not present a hardship to the applicant
because it has already assembled data for its projects, all that is required is the
consolidation of this information.
Second, the city should apply current zoning, environmental and critical area
ordinances to the three applications. Consideration of the pending applications under
twenty-four year old ordinances is completely inconsistent with Washington law that
prohibits ordinances that would bind local governments forever, especially in light of the
statutory requirement to continually assure that zoning and environmental regulations
are updated to take account of the latest standards and considerations.
June 4, 2018
Page 12
Thank you for consideration of SWC's views. Please do not hesitate to contact me if
you have any questions.
Sincerely,
PA . 7
uRu EuSTi , LLP
J. Richard Arambur Uv
JRA:cc
cc: Save Weyerhaeuser Campus