2010-01-27 HEX #10-001 Final DecisionMAR 0 3 2010
March 2, 2010
Carol A. McNeilly, CMC
City Clerk
City of Federal Way
P. O. Box 9718
Federal Way WA 98063-9718
N#FjDE
�PHLACE
P. L. L. C.
ATTORNEYS AT LAW
N. Kay Richards
Legal Assistant
206.447.2231
krichards@omwlaw. com
Re: Final Decision for Norpoint Heights Preliminary Plat, 08-100329-00-SU
Dear Ms. McNeilly:
At the request of Phil Olbrechts, enclosed is the executed original of the above -referenced
document, as well as a Declaration of Mailing.
Very truly yours,
OGDEN MURPHY WALLACE, P.L.L.C.
- z . �L_A' '4-)
N. Kay Richards, Legal Assistant to
Phil Olbrechts
/nkr
Enclosures
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A Member of the International Lawyers Network with independent member law firms worldwide
1601 Fifth Avenue, Suite 2100 • Seattle, WA 98101-1686 • 206.447.7000 • Fax: 206 4470215 • Web: www.omwlaw-com
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DECLARATION OF MAILING
Norpoint Heights Preliminary Plat
Federal Way File Nos. 08-100329-00-SU and 08-100330-00-SE
I, N. Kay Richards, make the following declaration:
1. I am a resident of the State of Washington, over the age of 18 years, not a
parry to this action, and competent to be a witness herein.
2. On the 2nd day of March, 2010, I mailed, via First Class U.S. Mail, a true
and correct copy of the Findings of Fact, Conclusions of Law and Decision and this
Declaration of Service to the following:
David Litowitz
Landmark Homes, Inc.
P.O. Box 26116
Federal Way, WA 98063
Stuart Scheuerman
ESM Consulting Engineers
33915 First Way South, Suite 200
Federal Way, WA 98063
I declare under penalty of perjury under the laws of the State of Washington that
the foregoing is true and correct.
EXECUTED at Seattle, Washington, this 2nd day of March, 2010.
N. Kay Rich ds
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.BEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY
Phil Olbrechts, Hearing Examiner
RE: Norpoint Heights
FINDINGS OF FACT, CONCLUSIONS OF
08-100329-00-SU LAW AND RECOMMENDATION
INTRODUCTION
The applicant requests approval of a preliminary plat to subdivide 3 acres into 14 single-family
lots. The Examiner recommends approval, but contingent upon the drainage pond meeting
public drainage pond standards.
The primary issue in this application was the slope of a drainage pond. The proposed drainage
pond satisfied slope standards for private ponds but not for public ponds. Public dedication of
drainage ponds is required by City regulations "as appropriate." City staff provided very
compelling and voluminous testimony on the need for public dedication of all residential
drainage ponds. Staff recommended denial if the applicant insisted on maintaining private
ownership of the ponds. After the Examiner closed the verbal testimony portion of the hearing,
staff and the applicant submitted a written agreed -upon conceptual plan for a drainage pond that
at this stage appears to comply with public slope standards. The parties also submitted some
recommended conditions of approval to cover private ownership should it not be possible to
conform the conceptual drainage pond to the standards for public drainage ponds. There was no
accompanying explanation as to why private ownership for the ponds would be appropriate in
this case. Unfortunately, the staff s evidence for public ownership was so compelling that the
Examiner has no evidentiary basis to conclude that a private owned drainage pond will provide
for adequate infrastructure or be consistent with public health, safety and welfare as required by
the City's subdivision standards.
ORAL TESTIMONY
David Lee — Associate Planner for Federal Way Staff
Mr. Lee began by giving a brief description of the project proposal. Staff finds that four of the
five criteria for subdivision approval have not been met due to the extreme slope of the
stormwater facilities. Stormwater requirements require the dedication of the stormwater facility
to the City. The City is unwilling to accept dedication due to the steep slopes. The slopes
constitute a maintenance hazard. Staff recommends denial of the plat as designed due to the
stormwater facility. However, Staff is willing to consider conditioning for approval of the
preliminary plat upon the applicant meeting stormwater facility requirements. Staff
acknowledged that conditioning approval on a facility that meets stormwater standards could
result in a redesign of the plat that would require additional public review.
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Preliminary Plat Recommendation P. 1 Findings, Conclusions and Recommendation
William Appleton — Surface Water Manager for City of Federal Way
Mr. Appleton began by addressing why the proposal does not meet four of the five subdivision
criteria. Essentially the pond does not meet the side slope standards necessary for City
ownership and is therefore not consistent with the public health, safety, and welfare. The City
finds that it would be appropriate and necessary for the facility to be dedicated to the City, and
under the current slope design, it does not meet the requirements or standards of acceptance.
Under the current design, one of the side slopes in the pond is approximately fifty percent steeper
than is generally allowed; which presents safety and maintenance problems.
In regards to why the City desires to have these types of facilities under City control, retention
ponds serve many important services that the City can best manage. Additionally, the ponds
impact other City surface water facilities, and thus if not maintained properly, can have negative
impact on City and eventually State waters. If these facilities are private, they are required to be
maintained and operated at City standards. In addition, responsibilities for facilities, for which
the property owners are responsible, must be shown on the plat documentation. Eventually, this
means that homeowners in the development would themselves be responsible for maintenance of
the facility and would also be responsible for costs of improper function. Past experience has
shown that private ownership of such facilities has failed to meet City standards and has caused
difficulties for the City and homeowners. City ownership also ensures quick and appropriate
response to any spill or other concern.
In the past 20 years, Mr. Appleton cannot think of a facility which the City has not accepted for
maintenance. Although other cities take other means of management of stormwater facilities,
Mr. Appleton believes that taking on the facilities initially, rather than waiting for
noncompliance of private ownership, avoids increased costs and damages in the long term. Not
only the facility, but also the entire plat, would likely need to be redesigned in order to meet the
slope requirement necessary for City acceptance.
In response to the statements by the applicant: There are private stormwater retention areas in
the City, but these were facilities accepted by King County prior to the incorporation of Federal
Way. Commercial developments are permitted to have privately owned ponds, which is
essentially allowed because only a single entity is in charge of maintaining the facility which
provides greater assurance of appropriate maintenance as well as simpler enforcement. The
stormwater design proposed by the applicant meets the 1998 Manual standards but does not meet
the City's maintenance standards. Landscaping, or maintenance of landscaping, is only one
aspect of the maintenance necessary for upkeep of the pond facility.
Eric LeBrie — ESM Consulting Engineers
Mr. LeBrie, and ESM Consulting, is generally in agreement with the majority of Staff s
conclusions within the staff report, except for the stormwater slope requirements. He pointed out
that private ownership of stormwater facilities is permissible under the FWCC and that there are
plenty of privately owned facilities. Additionally, if this project were for commercial
development, the pond would not be at issue, because those may be privately owned and
maintained, thus allowing for fifty percent slopes in the pond, or even vertical slopes. There are
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Preliminary Plat Recommendation p. 2 Findings, Conclusions and Recommendation
also areas within the FWCC which state that some facilities should be maintained privately and
that dedication is only necessary where appropriate.
The property cannot accommodate a 3-to-1 (3:1) slope. The road is pushed as far south as can be
pushed, and the road is planned at its minimum permitted width. Forcing 3:1 side slopes in this
pond would essentially mean that the bottom of the pond would come to a point and the volume
requirements cannot be met. Because of this, the pond was designed with a 2-to-1 (2:1) side
slope. Private ownership is being advocated because the property owners cannot meet the design
requirements for a City -maintained pond for that area.
Additionally, the applicants are designing the pond in conformance with the 1998 Surface Water
Manual. The difference arises in design due to differing requirements between publicly and
privately owned ponds. Where the requirements that the City pointed out for publicly owned
ponds are true, privately owned ponds have much less stringent standards, per the Manual. In
regards to contentions by staff that maximization of lots on site are the driving force, that is
simply not true, because even with the removal of lots 13 and 14, the pond requirements still
could not be met. Also, the applicant believes that there are instances when the management and
maintenance of such sites is more appropriate in private hands. Private landscape maintenance
of a 7,500-square-foot pond can likely be done more efficiently, and probably just better, than
the City. Safety concerns are likely to only relate to professional maintenance workers, because
a 6-foot fence is also required. Nothing in the Federal Way regulations mandate publicly owned
ponds and it is common in other jurisdictions to allow private ownership.
Upon rebuttal: Mr. LeBrie would argue that the site in question would have similar constraints
as a commercial property and that water runoff would be similar as well. Fear of a HOA not
existing in the future should not be a reason for denial. In regards to whether a change would be
minor or not, a reduction of lots would result in a simply administrative alteration.
EXHIBITS
See list of exhibits at p. 12 of the January 19, 2010, staff report prepared by David Lee. In
addition, the following exhibits were presented and entered into the record during the public
hearing:
L: PowerPoint by David Lee
M: 2/3/10 Memo from David Lee regarding conditions of approval.
N. 2/3/10 letter from Brianne Gastfield to Dave Lee regarding stormwater design.
O. 2/3/10 "Storm Drainage Pond Alternative".
P. 2/10/10 Memo from David Lee regarding conditions of approval.
FINDINGS OF FACT
Procedural:
Applicant. David Litowitz on behalf of Landmark Homes, Inc.
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Preliminary Plat Recommendation p. 3 Findings, Conclusions and Recommendation
2. Hearing. The Hearing Examiner conducted a hearing on the application at 2:00 p.m. at
Federal Way City Hall on January 27, 2010. He left the record open through February 3, 2010 in
order to provide staff an opportunity to provide conditions of approval should the applicant
provide a stormwater detention facility with 3:1 slopes. The Examiner extended the record to
February 10, 2010, in order to provide staff and the applicant with additional time to agree upon
a stormwater facility design.
Substantive:
3. Site/Proposal Description. The applicant proposes to subdivide an approximate three -
acre parcel of land into 14 lots for establishment of single-family residences. Street
improvements, water, sewer, utilities, storm drainage control improvements, and other related
infrastructure improvements will be installed to service the plat. Currently the site is
undeveloped and partially wooded, with 27 significant trees and thick shrubbery. Of the 27
trees, 11 will be removed.
4. Characteristics of the Area. The property is situated in the southwestern portion of
Federal Way and just north of Tacoma. The area is generally developed with residential housing
of differing varieties. The land to the east is multi -family developments, and to the north, west,
and south are single-family zoning districts with single-family homes.
5. Adverse Impacts. The project has undergone a SEPA review and was issued a DNS.
Staff received no comments or appeals. The staff in their analysis of the project identified no
significant adverse impacts and none were discernable from the record except that the initially
proposed stormwater detention facility constituted a safety and maintenance hazard, as further
discussed below.
6. Adequacy of Infrastructure and Public Services. As mitigated by staff, adequate
infrastructure will serve development as follows:
• Drainage: Stormwater design was the most contentious issue of this application. The
applicants proposed 2:1 slopes for their storm drainage pond. Staff testified that a
maximum of 3:1 slopes was authorized for publicly dedicated detention facilities.
Slopes that are 3:1 are consistent with the 1998 King County Surface Water Design
Manual (KCSWDM), but not with the requirements for dedication to the City. Staff
testified that since Federal Way has been incorporated, all stormwater detention
facilities are publicly dedicated. The Examiner finds that, as testified by staff, public
dedication is necessary to ensure safe and proper maintenance. As testified by staff,
home owner associations are often unreliable and it becomes difficult for City staff to
compel maintenance. Covenants can be added to allow staff to maintain the pond at
the expense of the homeowner association, but these covenants can be very difficult
to enforce since ultimate responsibility is ultimately divided amongst the property
owners of the subdivision.
In this case, after the verbal testimony portion of the hearing was closed, the applicant
and Staff were able to negotiate a conceptual design that appears to comply with the
2:1 slope requirement of public detention facilities. This in part was accomplished by
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Preliminary Plat Recommendation p. 4 Findings, Conclusions and Recommendation
displacing a 2:1 slope into an adjoining tract to be owned and maintained by a
homeowner's association. In case the stormwater facility ultimately could not meet
public facility requirements, the staff agreed to allow the facility to stay in private
ownership. There was no explanation in the post verbal hearing written materials as
to how staff could conclude that private ownership was safe and appropriate after
having spent considerable time testifying that it was not. In short, staff provided very
compelling and somewhat voluminous testimony justifying mandatory public
dedication of residential stormwater facilities, and then agreed to private dedication
with no explanation or evidence as to why this would be acceptable in this particular
case. There is substantial evidence supporting a requirement for public dedication
and none for private dedication. Given the evidence, the Examiner cannot find that
private dedication will provide for sufficient and safe maintenance. The design of the
stormwater facility will have to be publicly dedicated and meet public facility
requirements. If the facility cannot meet public dedication requirements, it will not
satisfy the conditions of approval recommended by the Examiner.
Other than the slope issue for the drainage pond, the stormwater facilities of the
project meet the requirements of the 1998 King County Surface Water Design
Manual (KCSWDM) as modified by the City. The facilities are adequate if they can
be publicly dedicated.
• Transportation: As proposed and as required by the FWCC, the subdivision will be
accessed through SW 353`d Street, which connects to Norpoint Way NE. All lots are
then accessed directly by SW 353`d Street. The City's traffic engineer has reviewed
the project and concluded that the proposed street layout is consistent with the FWCC
and comprehensive plan in place at the time of the complete application. In addition,
SW 353rd Street will be constructed to City Standard roadway section "W"
requirements, including a 28-foot paved roadway with curb and gutter, a four -foot
planter strip with street trees, streetlights, and utility strip. Street lighting is also
required. The Public Works Department and South King County Fire and Rescue
have also approved preliminary roadway design and curve radii as proposed.
• Vehicular Access and Circulation: Concurrency analysis was performed to determine
whether there is adequate roadway capacity to accommodate the development and
also to identify traffic mitigation. The report identifies eight Transportation
Improvement Plan projects impacted by the proposal and results in a $24,723 pro-rata
mitigation payment to address the problems (Exhibit A, page 5-6). The applicant
may either make this payment or complete the identified improvements.
• Pedestrian System: As proposed and required, the plat complies with the FWCC
subdivision code requirements for on- and off -site pedestrian circulation; and as such
a sidewalk will he provided along the length of SW 353rd Street. Full street
improvements include a four -foot -wide planter strip, five -foot -wide sidewalk, and
three -foot -wide utility strip. The Federal Way School District has reviewed the plan
and did not have any comments regarding school access or configuration.
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Preliminary Plat Recommendation p. 5 Findings, Conclusions and Recommendation
• Open -Space: The applicant has proposed to opt in favor of the permitted fee in lieu
option rather than provide on -site open space. The fee in lieu of open space shall be
calculated at 15 percent of the assessed value of the property, based on King County
assessment, at the time of final plat approval.
• Water: The applicant proposes to serve the subdivision with a public water supply
and distribution system managed by the Lakehaven Utility District. The January 22,
2008, Certificate of Water Availability indicates Lakehaven's capacity to serve the
proposed development. If additional hydrants or other fire protection systems are
indicated, a Developer Extension Agreement (DEA) may be required.
• Sewage: The applicant proposes to serve the proposed plat by a public sewer system
managed by Lakehaven Utility District. A January 22, 2008, Certificate of Sewer
Availability indicates the district's capacity to serve the proposed development
through a Developer Extension Agreement (DEA) between the applicant and the
district.
■ Schools: As part of the City's review of the proposal, the preliminary plat application
was referred to the Federal Way School District for review. A school access analysis
submitted by the applicant indicates that the site is located in the service areas of
Sherwood Forest Elementary, Illahee Junior High School, and Todd Beamer Senior
High School. School service areas are reviewed annually and may be adjusted to
accommodate enrollment growth and new development. All students will be served
by bus access, and bus stops are at: 27th Avenue SW & 351'k Place for the elementary
and junior high, and at SW 349h Place & Coronado Park for the high school. Bus
stops are subject to change, as student needs increase and roads are developed.
School impact fees will be collected at the time of building permit issuance.
Currently those fees amount to $4,218.00 per single-family housing unit. School
impact fees are determined on the basis of the District's Capital Facilities Plan and
are subject to annual adjustment and update.
The applicant's School Access Analysis concludes that without pedestrian
improvements between Norpoint Way and the end of 271h Ave. S.W., "there is no
other realistic access to the existing school bus stops" from the proposed
development. The project will be conditioned to ensure that this issue is addressed.
• Fire Protection: South King Fire and Rescue requires that a fire hydrant be located
within 350 feet of each lot. The Certificate of Water Availability from Lakehaven
Utility District indicates that water will be available to the site in sufficient quantity to
satisfy fire flow standards for the proposed development. The exact number and
location of fire hydrants will be reviewed and approved by South King Fire and
Rescue.
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Preliminary Plat Recommendation p. 6 Findings, Conclusions and Recommendation
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner: FWCC 20-110 (4) and (5) provide the Examiner with
the authority to conduct a hearing and make a recommendation to the City Council on
preliminary plat applications.
Substantive:
2. Zoning Designation: Single -Family — High Density, RS7.2 and Single -Family — High
Density, RS5.0
3. Review Criteria and Application. FWCC 20-126(c) governs the criteria for preliminary
plat approval. Those criteria are quoted in italics below and applied to the application under
corresponding Conclusions of Law.
FWCC 20-126(c): Decisional Criteria. A Hearing Examiner shall use the following criteria in
reviewing the preliminary plat and may recommend approval of the plat to the City Council if
(1) It is consistent with the comprehensive plan;
4. The application is subject to the adopted Federal Way Comprehensive Plan (FWCP),
which designates the property as Single -Family — High Density. The proposed land use of a
Single -Family housing development is permitted within the RS 7.2 and RS 5.0 zones and is
consistent with density allowances and policies applicable to this land use as established in the
FWCP.
FWCC 20-126(c)(2): It is consistent with all applicable provisions of the Chapter, including
those adopted by reference from the comprehensive plan:
5. As discussed in the staff report, the project complies with all applicable criteria in FWCC
Chapter 20 except for stormwater detention requirements that apply to public facilities. FWCC
20-183(a) provides that stormwater facilities must meet the requirements of the KCSWDM.
Section 5.3.1(c) of the KCSWDM, which apparently only applies to public facilities (the staff
report does not make this distinction and the Examiner does not have access to the KCSWDM),
requires that at least 25% of the pond perimeter will be a vegetated soil slope no steeper than
3H:1V. FWCC 20-183(c) provides that stormwater facilities will be publicly dedicated "as
appropriate." As previously determined, all residential stormwater detention facilities are
publicly dedicated and public dedication is necessary in order to ensure consistent, safe and
adequate maintenance. Consequently, public dedication is "appropriate" and hence required
under FWCC 20-183(a). As a publicly dedicated facility, the facility must satisfy the slope
requirements of KCSWDM Section 5.3.1(c). The project is conditioned accordingly.
FWCC 20-126(c)(3): It is consistent with public health, safety, and welfare.
6. The proposed preliminary plat would permit development of the site consistent with the
current Single -Family High Density land use classification of the FWCP and map. Proposed
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Preliminary Plat Recommendation p. 7 Findings, Conclusions and Recommendation
access and fire hydrant locations must meet all requirements of South King Fire and Rescue, and
all future structures are required to be sprinklered. Future development of the plat in accordance
with applicable codes and regulations. Mitigation measures require payments and/or
improvements for adequate infrastructure. As previously discussed, the project will also be
conditioned to provide for public dedication of its stormwater facility and in so doing will have
to meet the slope requirements for public facilities.
One issue related to public health, safety and welfare that is curiously missing from the City's
conditions of approval are pedestrian improvements for safe walking conditions to school bus
stops. The applicant's own analysis indicates that there is no access to school bus stops without
pedestrian improvements between Norpoint Way and the end of 27t' Ave SW, see Ex. I, p. 8.
The project will be conditioned to provide necessary pedestrian improvements.
As recommended with conditions, the project is consistent with public health, safety, and
welfare.
FWCC 20-126(c)(4): It is consistent with the design criteria listed in FWCC 20-2:
7. The proposed preliminary plat would promote the purposes identified in FWCC Section
20-2 and the standards and regulations therein, as identified in the staff report, including
effective use of land, promotion of safe and convenient travel on streets, and provision for the
housing needs of the community. One exception is the design standards for the stormwater
pond. As discussed elsewhere, public dedication is necessary, consequently compliance with the
design standards of publicly owned facilities is required. The project is conditioned accordingly.
8. FWCC 20-125(c)(5): It is consistent with the development standards listed in FWCC
20-151 through 20-157, and 20-178 through 20-187.
9. Development of this site is required to comply with the provisions of FWCC Chapter 20,
"Subdivisions," Chapter 18, "Environmental Protection," Chapter 22, "Zoning," and all other
applicable local and state development codes and regulations. As proposed, and as
recommended by the Hearing Examiner, the preliminary plat application complies with all
applicable statutes, codes, and regulations, with the exception of the pond retention facility.
However, as conditioned, the application will be in compliance.
RECOMMENDATION
The Examiner recommends that the City Council approve the preliminary plat as set forth in the
staff report of David Lee, dated January 19, 2010, subject to the following conditions:
Public Works Conditions:
1. Pedestrian improvements to assure safe walking conditions to school bus stops as detailed
in the School Access Analysis. Final location and design of the school access path shall be
approved by the Federal Way School District and the Federal Way Public Works Department
prior to issuance of construction permits for infrastructure improvements.
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Preliminary Plat Recommendation p. 8 Findings, Conclusions and Recommendation
2. Design of the stormwater drainage pond shall be consistent with the conceptual design
presented in Exhibit O. In addition the stormwater drainage pond shall be subject to the
following:
• It must be demonstrated through the final engineering design and review process
that the design meets all design criteria for Public ponds, per the 1998 King
County Surface Water Design Manual (KCSWDM).
• The City will accept the pond for operations and maintenance, after Final Plat
recording and upon successful completion of the City Code required post -
construction two-year maintenance period.
• Approval/agreement from the property owner(s) on the north side of the pond, for
a wall to be constructed on that adjacent property, and any walls built on
parcels/property other than within the pond tract will be owned and maintained by
those adjacent property owners.
• Third -party structural review/approval of all walls associated with the pond.
• Walls to meet design criteria set forth by a Licensed Professional Geo-Technical
Engineer and third party review will be required.
Planning Conditions:
1. Prior to approval of the final plat, the applicant must submit to the City of Federal Way
fee in -lieu -of open space, calculated on 15 percent of the most recent assessed value of
the property at the time of final plat.
2. A copy of the Home Owners Association (HOA)/Covenant Agreement must be recorded
prior to recording of the plat. The HOA/Covenant Agreement must contain language
which governs the responsibility of owning/maintaining common landscaping tracts
along Norpoint Way NE and the non-public landscaping tract in and around the
stormwater detention facility.
3. The power easement for Puget Sound Energy that runs north/south along the eastern
portion of the proposed preliminary plat must be shown on the final recorded plat.
Additionally, the buildable areas of each lot shall be shown outside of the easement.
Dated this 28t' day of February, 2010.
Awrt:��s _'t"
Phil Olbrechts
Hearing Examiner
City of Federal Way
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Preliminary Plat Recommendation P. 9 Findings, Conclusions and Recommendation