Mirror Lake Highland HEX DecisionBEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY
Phil Olbrechts, Hearing Examiner
RE: Mirror Lake Highland Plat
Alteration
No. 21-102213-SU
FINDINGS OF FACT, CONCLUSIONS OF
LAW AND RECOMMENDATION
INTRODUCTION
Mirror Lake Highland LLC requests approval of a plat alteration to remove a covenant on its 16-lot
cottage housing subdivision that requires it to construct two affordable housing units. The plat is
generally located at 604 SW 312th Street. It is recommended that the City Council approve the plat
alteration.
The Applicant agreed to construct the two affordable housing units in 2008 as part of its preliminary
plat approval to qualify for a density bonus authorizing 16 dwelling units instead of 12 for the project
site. The affordable housing density bonus was repealed by the City Council on November 4, 2020 by
Ordinance No. 20-899. That repeal also changed the maximum dwelling unit count per cluster of
cottage housing lots from 12 units to 16 units. Under current regulations, the Applicant would be
allowed to develop its project site into a 16-unit cottage housing cluster without a density bonus.
ORAL TESTIMONY
A computer -generated transcript has been prepared of the hearing to provide an overview of
the hearing testimony. The transcript is provided for informational purposes only as Appendix
A.
EXHIBITS
The City's August 4, 2021 Staff Report with Attachments A-F were admitted during the hearing as
Exhibit 1. The City's PowerPoint Presentation was admitted as Ex. 2.
FINDINGS OF FACT
Procedural:
1. AApplicant. The Applicant is Bill McCaffrey, Mirror Lake Highland LLC, 30929 37th Place
SW Federal Way, WA 98023. bill@thenexusstudio.com
Z. Hearing. The Hearing Examiner conducted a virtual public hearing on the application at
10:00 am, August 11, 2021, Zoom Meeting ID No. 877 853 5247.
Plat Alteration -- 1
Substantive:
3. Proposal and Site Description. Mirror Lake Highland LLC requests approval of a plat
alteration to remove a covenant on its 16-lot cottage housing subdivision requiring it to construct two
homes as affordable housing. The plat is generally located at 604 SW 312th Street.
More specifically, the Applicant requests removal of Note 5 on Sheet 2 of the Mirror Lake Final Plat,
which provides as follows:
Affordable Housing Lots — Lots 7 and 13 are designated as affordable housing units per
City of Federal Way Cottage Housing Ordinance, Federal Way Revised Code Chapter
19.250, Section 19.250.150. The affordable housing sales covenant, as approved by the
City, shall be in force for 15 years from initial occupancy.
Mirror Lake Highland is a recorded 16-lot single-family residential subdivision for a cottage housing project on
approximately 1.85 acres. The City Council approved the preliminary plat application for the subdivision in
2008 and the final plat in 2019. A cottage or compact single-family residence has been constructed on each of
the 16 lots in the Mirror Lake Highland Plat except for the two affordable housing lots.
FWRC 19.05.030(C), defines cottage housing development (CHD) as a residential lot development consisting of
clusters of between 4 and 16 detached dwelling units that include cottages and may include compact single-
family units. The compact single-family units are subject to maximum size limits. The CHD regulations also
include open space and architectural design standards. Cottage home developments are restricted in square
footage but are allowed at roughly twice the density permitted by the underlying zone. The homes are
characterized by home orientation to a shared central open space.
At the time of the CHD review and approval, the FWRC limited CHD clusters to 12 units with the option to
increase them to 16 units with an affordable housing density bonus. The two Mirror Lake affordable housing
units at issue were proposed to increase the number of authorized units from 12 to 16.
The City Council repealed the CHD density bonus, FWRC 19.250.150, by adoption of Ordinance No. 20-899 on
November 4, 2020. Ordinance No. 20-899 also increased the maximum number of units per CHD cluster
without a density bonus from 12 to 16 by amendment of FWRC 19.250.030(1)(b). Under FWRC
19.250.030(1)(b) as currently applicable, the Applicant would be allowed to divide the project site into 16 lots
without an affordable housing density bonus.
4. Characteristics of the Surrounding. All surrounding uses are zoned RS 7.2 with Lake
Grove Elementary located to the east.
5. Adverse Impacts/Adequacy of Infrastructure. There are no significant adverse environmental
impacts associated with the proposal. The proposal involves no alteration to plat design or any plat
associated improvements or any change in demand upon public services. As confirmed by staff in the
staff report, for these reasons the removal of the affordable housing note will have no impact on
surrounding properties, the environment or the adequacy of infrastructure.
Plat Alteration -- 2
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner: FWRC 18.45.050 and .060 authorizes the hearing
examiner to hold a hearing and make a recommendation to the City Council on applications for
plat alterations.
Substantive:
2. Zoning Designation: RS 7.2.
3. Review Criteria and Application. FWRC 18.45.050(2) and (3) govern the standards for
plat alteration review. The proposed plat alteration is consistent with those standards.
The FWRC 18.45.050 standards are too numerous to quote with any significant utility. In general,
with one exception discussed below, the standards regulate plat design and infrastructure
improvements. An important issue regarding application of those standards is whether the standards
only apply to the portion of the plat that is being altered or whether they apply to the plat as a whole.
Arguably, the standards apply to the plat as a whole because otherwise the Applicant could be
engaging in selective vesting. Selective vesting is applying some regulations that have vested along
with a permit application and then waiving vesting as to other regulations that were amended after
vesting. Selective vesting is prohibited by the courts because it enables developers to cobble
together a set of development standards that were never intended to be collectively applied by the
City Council. See Reclamation Co. v. Bjornsen, 125 Wn. App. 432 (2005)1.
In this case, the Applicant would clearly be engaged in selective vesting if the Council hadn't
adopted Ordinance No. 20-899 to increase the maximum number of lots per CHD cluster from 12 to
16 without an affordable housing bonus. If the maximum were still set at 12, approval of the plat
alteration would enable the Applicant to develop 16 lots in a CHD cluster when no set of regulations
concurrently in place would allow that many lots without an affordable housing bonus.
Fortunately for the Applicant, there is no selective vesting occurring for this proposal. This is
because (1) the number of lots per CHD cluster has been increased from 12 to 16 by Ordinance No.
20-899; and (2) beyond the CHD amendments previously discussed, the City's subdivision standards
have not materially changed since the Mirror Lake plat vested sometime after 20062
.
Only three applicable plat alteration standards have been amended since the vesting of Mirror
Lake — FWRC 18.60.050, 18.60.080 and 19.135.251. FWRC 18.60.050 and 18.60.080
"encourage" the use of low impact development techniques for street and stormwater
1 Bjarnson dealt with a developer who used the vesting date of its application to apply some vested standards and then
applied subsequently adopted standards for the same permit review. The circumstances of this application are slightly
different, as the Applicant is mixing applicable standards between two applications (preliminary plat and plat alteration) as
opposed to one. However, the applicable principle is still the same. As in Bjarnson, the Applicant of this case should not
be allowed to mix applicable standards by applying those that applied for its preliminary plat application in 2009 and then
adding newly adopted standards in the current application.
2 The staff report notes that the City's cottage housing regulations were adopted in 2006, which would be Ordinance No.
06-533. Ordinance No. 06-533 had an effective date of September 28, 2006. This means that the Applicant's preliminary
plat application had to vest after September 28, 2006 to take advantage of the ordinance.
Plat Alteration -- 3
improvements. Since the requirements are not mandatory and the CHD design already
incorporates LID features such as pervious driveways and rain gardens, that standard would
likely have been met if applied during the Mirror Lake preliminary plat review.
The third standard, FWRC 19.135.251 requires the creation of a street network with block
perimeters not exceeding 2,640 feet. This requirement does not apply if adjacent development is
not conducive to this block pattern. In this case the Applicant would be required to at least
install an east -west road stub to comply with the block perimeter requirement. However,
adjacent development is not conductive to such a connection. The development to the west is
already fully developed without any available area for a stub connection and the lot adjoining the
entirety of the eastern border is similarly fully developed with a church and no available road
connection.
Since Mirror Lake was found to be consistent with all applicable subdivision standards when it
was approved in 2008 and those standards have not materially changed since then, it can be
concluded that the plat still conforms to those standards.
Beyond compliance with City subdivision design and infrastructure standards, the plat alteration
review criteria of FWRC 18.45.050 also requires consistency with RCW 58.17.110. RCW
58.17.110 focuses upon generally requiring that subdivisions be served by adequate
infrastructure. However, it also includes the requirement that "[a)ppropriate provisions are
made for the public health, safety, and general welfare..." The loss of affordable housing units
is relevant to this criterion, i.e. is the loss of two affordable housing units caused by the proposed
plat alteration consistent with public health, safety and welfare? The answer is yes because the
Council has legislatively determined in the whereas clauses to Ordinance No. 20-899 (the CHD
amendments) that there is a need for medium income housing and that development costs have
prevented the development of affordable housing units. Given that the removal of two affordable
housing units will open the opportunity for two needed and more feasible medium income units,
the loss of those affordable housing units can be construed as consistent with public health,
safety and welfare.
RECOMMENDATION
For the reasons identified in the conclusions of law above, it is recommended that the City Council
approve the proposed plat alteration as described in Finding of Fact No. 3 with no conditions.
Dated this 25`" day of August 2021.
Phi A_ Qlbrechts
Hearing Examiner, City of Federal Way.
Plat Alteration -- 4
Appendix A
Mirror Lake Plat Alteration
Summary of August 11, 2021 Hearing Testimony
Note: This is a computer -generated transcript of the hearing. No assurances are made as to accuracy. The
transcript is just provided as a courtesy to those who want a detailed depiction of what was discussed at
the hearing. For a fully accurate rendition of what was said, a recording of the hearing is available from
the City Clerk's Office.
Phil Olbrechts :
Okay, let's get started then. And we are recording, it's 10:00 AM, August 11th, 2021. I'm Phil Olbrechts,
hearing examiner for the city of Federal Way. Today, we're considering and holding a public hearing on a
proposed plat alteration to the Mirror Lake Highland plat, or subdivision, I should say. That's file number
21-102213-SU.
Phil Olbrechts :
Jim Harris is lead staff on this project. He'll be giving us an overview of what the project is about to start.
And then after Mr. Harris is done with his presentation, we'll move on to applicant comments. After
that's done, then we'll move on to general public comments. And so far, it doesn't look like we have any
members of the public. After public, if any, we'll go back to staff rebuttal, and then finally applicant final
word. And then I have to make, I believe, a recommendation to the city council for this one, so.
Phil Olbrechts :
All testimony does have to be taken under oath. So Mr. Harris, let me swear you in for your
presentation. Just raise your right hand. Do you swear or affirm to tell the truth and nothing but the
truth in this proceeding?
Jim Harris:
I do.
Phil Olbrechts
Okay, great. And by state law, I'm only allowed to consider evidence that's admitted into the record.
That way, everyone knows exactly what information is being considered for the recommendation. And
I've been given a copy of the staff report, which contains a few exhibits on page four of the staff report
there. Let me share my screen.
Phil Olbrechts :
All right. You should be seeing the staff report there, page four, and you can see there are four
attachments listed. Boy, I'm having trouble reading that small print, hold on a second. That includes the
application, the amendment map, the city council resolution approving the Mirror Lake Plat, the SEPA
addendum for the project, the affordable housing provision that's been repealed, and city council
ordinance 20-899 repealing something as well.
Phil Olbrechts :
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Transcript by Rev. corn
So any objections over the staff report coming in with exhibits A through F? If anyone has any
objections, just raise your virtual hand, which is a button at the bottom of your screen, or unmute
yourself, say you object. I don't see any objections, so I'll admit the staff report as exhibit one, along
with exhibits A through F attached to that. All right, Mr. Harris, go ahead.
Jim Harris:
Okay. Thank you, Mr. Examiner. You got me loud and clear?
Phil Olbrechts :
Yes. Mm-hmm (affirmative).
Jim Harris:
All right. I'm going to share my screen. Screen three, then I hit share. Again, I'm Jim Harris, senior
planner with the city of Federal Way, Department of Community Development. And I will be providing
the staff presentation, a short presentation on the plat alteration application for the alteration of the
Mirror Lake Highland plat.
Jim Harris:
As the examiner stated, city staff provided both the examiner, of the hearings the staff report and
exhibits last Wednesday, August 4th, and the applicant also received a copy of all that information. So,
and with that, the city has not received any public comments via email, or verbal or written comments.
So at this point, as I said, the city has not received any comments on the application.
Jim Harris:
So with that, I will move forward with a short presentation. So again, it's the Mirror Lake Highland plat
alteration application. For the public's viewing, here's all the Zoom links via phone and online. And those
are also all in the public notice, as well as the staff report that was presented and issued last week.
Jim Harris:
So what we have here is an application to alter a condition or eliminate a condition and note on the
recorded plat. And the application to the city is signed by a majority of the persons having ownership of
the lots in the 16-lot Mirror Lake Highland plat. So again, the majority of the owners have signed the
application and they have applied to remove note five on the final plat. And this note five requires lots 7
and 13 to be affordable housing units.
Jim Harris:
So just a super quick background, the Mirror Lake Highland plat is off of the north side of Southwest
312. In the plat, this is just the vicinity maps across the street from 312, it's about an almost two -acre
site. The site itself is completed. The final plat was recorded in 2019. And there are houses on... well, it's
a cottage housing plat, so it was a unique project in itself. Again, the plot was recorded in January 2019.
And it's a total of 16 lots in the plat. And there have been houses constructed on all 16 of the lots,
except for lots 7 and 13, which do not have houses on those lots yet.
Jim Harris:
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So as stated in the staff report, the plat alteration process is governed by Federal Way revised code
chapter 18.45. And the application is submitted by Mr McCaffrey and the majority of the lot owners. The
application is to remove the plat note, which states affordable housing on lot 7 and 13 are designated as
affordable housing units, per city of Federal Way cottage housing ordinance, revised code chapter
19.250. And the affordable housing sales covenant, as approved by the city, shall be enforced for 15
years from the initial occupancy.
Jim Harris:
So this is just a quick summary. So Federal Way code 19.250.150 regarding affordable housing bonus
units was in effect at the time of the Mirror Lake Highland preliminary plat approval, and at the time of
the final plat approval in 2019. And was applicable to the Mirror Lake Highland cottage housing plat.
Jim Harris:
And again, below on this slide, that section was titled 19.250.150 was titled "Affordable housing bonus
in IRS zoning classifications," And basically said the cottage that in the IRS zones, the cottage housing
developments that include affordable housing units may exceed the base level of 12 dwelling units, up
to a total of 16. However, one half of the dwelling units over the base level of 12 must be affordable. For
example, in this case, a total of four additional dwelling units may be permitted if two of those units are
affordable.
Jim Harris:
And that was the case for the Mirror Lake Highland cottage housing plat. So approximately one year ago,
in Ordinance 20-899, city council adopted that ordinance on November 4th, 2020, which repealed that
section of Federal Way revised code in its entirety, regarding the affordable units. So council chose to
eliminate that section. And so therefore the application to eliminate another five on the final plat map is
consistent with current Federal Way city code.
Jim Harris:
And so based on the findings and conclusions in the staff report, the community development
department staff recommends approval of the plat alteration application to remove said note five on
sheet two in the Mirror Lake Highland plat. And in this case, as Mr. Examiner stated, the hearing
examiner will be holding this public hearing and making recommendations to the city council. And the
city council will be taking final action on the application. And that is the conclusion of the staff report,
if...
Phil Olbrechts :
Okay. And Mr. Harris, do you want to get your PowerPoint in as exhibit two?
Jim Harris:
Yes, please. And we can email you. Stephanie Courtney, the city clerk, will email you a copy of that
shortly, [crosstalk 00:09:11].
Phil Olbrechts :
Okay, great. Any objections over Mr. Harris' staff report, or excuse me, PowerPoint coming in as exhibit
two? All right. Seeing none, we'll go ahead and allow that in as well. A couple of quick questions, Mr.
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Harris. Under the current code, without the affordable housing bonus, would they be able to build 16
units? Or is that not possible anymore?
Jim Harris:
Yeah. The code as currently existing would allow 16 units outright on a site of this size, yes.
Phil Olbrechts :
Oh really? Oh, okay. Okay. Okay, that's a big deal, then. And then my understanding of the reason why
the council got rid of the affordable housing bonus is because there was too high a demand for non -
affordable housing, essentially. And it was just too expensive, the housing costs to build for affordable
housing. Is that kind of the rationale behind that?
Jim Harris:
Yeah. I wasn't really involved in that process, but I mean, that's basically the findings and the
warehouses in Ordinance 20.899. 1 guess you could surmise that from that ordinance.
Phil Olbrechts :
Okay. Okay. Yeah. And do you know, I mean, has the city had been engaged in any other affordable
housing programs since Mirror Lake Highland was approved? Just kind of looking at this from the
standpoint that affordable housing is not necessary, maybe because the city is doing something else, or?
Do you know?
Jim Harris:
Well, the city's in what I would kind of hope to say is the final chapter of adoption of a housing action
plan that then would move into the implementation phase within the next year, or shortly after. Staff
anticipates, potentially, council adoption in the next couple three months. And it has a range and variety
of housing policy options and choices.
Jim Harris:
But there is no other real... I mean, there is a affordable housing requirement adopted in code for other
multifamily developments that are over... I can't remember the number. I think it may be... I can't
remember the number right off the top of my head. But there is something in place for that, and
multifamily.
Phil Olbrechts :
Okay, great. All right. Thanks, Mr. Harris, appreciate your input. All right. Let's move on to applicant
comments at this point. Anyone on behalf of the applicant want to say something now? You don't have
to, but if you want to, now's the opportunity.
Bill McCaffrey:
I'm Bill McCaffrey, I'm on the call and I [crosstalk 00:11:41] ask you -
Phil Olbrechts :
Okay. Just let me swear you in, Mr. McCaffrey, just raise your right hand. We can't see you, but I'll take
your word for it. Do you swear to tell the truth, nothing but the truth in this proceeding?
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Bill McCaffrey:
Yes, I do.
Phil Olbrechts :
And is your last name spelled C-A-F-F-R-E-Y? Is that correct?
Bill McCaffrey:
Yes.
Phil Olbrechts :
Okay, all right. Go ahead, Mr. McCaffrey.
Bill McCaffrey:
I would just like to say that I agree with the staff report, and I'd like to make myself available if you have
any specific questions that may come up or haven't been answered. So I'll be here.
Phil Olbrechts :
Okay. Okay, sounds good. Thank you. All right. Let's move on now to public comments. And like I said
before, it doesn't appear we have any members of the public involved there. Let's see. Mr. Harris, can
you tell from the participant list, is there anyone who might be a member of the public that wants to
participate?
Jim Harris:
Actually, can I defer that to Ms. Tina Piety? She's represented as "planning department" on the screen.
Phil Olbrechts :
Okay. Ms. Piety, could you let me know? Is there any member of the public that's involved right now or
not?
Tina Piety:
We just have Councilmember Lydia SS. Oh, I can never say her last name.
Phil Olbrechts :
Okay. Okay. All right. Well, if she or anyone wants to say anything at this point, go ahead. Otherwise, I
will close the hearing and... Let's see, hold on a second here. All right. Is there an email address or a
phone number someone can call if they're trying to participate right now and can't figure out how?
[inaudible 00:13:12] cover all bases.
Jim Harris:
Yeah.
Phil Olbrechts :
Oh, there we go. Okay. Yeah, if-
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Jim Harris:
[crosstalk 00:13:21]-
Phil Olbrechts :
Oh, sorry. Go ahead, Mr. Harris.
Jim Harris:
Well, and also the general planning phone number is area code (253) 835-2655.
Phil Olbrechts :
Okay. All right. So if for one reason or another, someone's participating, we're not seeing you and you
can't figure out how to get involved, or if someone was having computer problems and couldn't link into
the hearing this afternoon, I'll leave the record open until 5:00 PM tomorrow.
7if1[971=11M
And that's only if you had technical problems, you weren't able to participate for that reason, go ahead
and email your comments there to planning@cityoffederalway.com. Make sure that in the subject line,
you mention it's for the Mirror Lake subdivision. And then when that comes in, if it comes in before 5:00
PM tomorrow, I'll allow staff and the applicant to provide a response and that'll become part of the
record for the city council and that recommendation.
Phil Olbrechts :
So with that then, let's move back on to Mr. Harris, any final comments on behalf of staff?
Jim Harris:
No, sir. No final comments.
Phil Olbrechts :
Okay. And Mr. McCaffrey, any final comments you want to make?
Bill McCaffrey:
No. Everything seems right.
Phil Olbrechts :
Yeah, it looks good. Okay, I'll go ahead and close the record today, except for in case a member of the
public had technical issues in participating until 5:00 PM tomorrow. Beyond that, yeah.
Phil Olbrechts :
Assuming that no comments come in, I think it's a fairly easy recommendation for approval. Since you
could develop that 16 units without the affordable housing covenant, it seems fair to... or, I should say,
condition. It seems fair to take that out. And so I'll forward [inaudible 00:15:01] to council within the
next few days. So anyway, thanks all for your participation, and we're adjourned for this morning.
Jim Harris:
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All right. Thank you.
Bill McCaffrey:
Thank you.
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