2010-04-07 HEX# 10-002 Condition #5 ResponseCITY OF
Federal
April 14, 2010
CITY HALL
Way 33325 8th Avenue South
Mailing Address: PO Box 9718
Federal Way, WA 98063-9718
(253) 835-7000
www.cityoffederalway.com
Mr. Bio F. Park
Ogden, Murphy, Wallace PLLC
1601 5`11 Avenue, Suite 2100
Seattle, WA 98101
RE: File #09-104380-00-UP; RESPONSE TO WSDOT EXEMPTION TO STAFF REPORT CONDITION #5
Triangle Project, Interstate-5/State Route 18/State Route 161, Federal Way
Dear Honorable Park:
Thank you for the opportunity to respond to the Washington State Department of Transportation's
(WSDOT) position dated April 9, 2010, that it is exempt from complying with the City of Federal Way's
Condition #5 of the March 31, 2010, Staff Report to the Federal Way Hearing Examiner. As clarified
during the April 7, 2010, public hearing, the City intends engineering review to be limited to WSDOT's
work on the Corrington wetland compensatory site and those areas outside of WSDOT's right-of-way
along Interstate 5 where stream culverting and relocation activities will take place. Condition #5 consists
of: (1) City staff review of the Temporary Erosion and Sedimentation (TESC) plan; (2) City staff review
of the haul route; (3) City staff inspections; and (4) no more than $5,000 for inspection cost recovery.
AUTHORITY TO REVIEW
The City's authority to require engineering review is pursuant to Federal Way Revised Code (FWRC)
19.120.020(2), which states:
No person shall remove any trees, make changes or cause changes to be made in the
surface of any land by clearing, grading, filling, or drainage alteration in the city of
Federal Way without first obtaining approval of a clearing and grading plan by the
director; except for those activities that are exempt as described in FWRC 19.120.030.
As the proposed work does not meet any of the 14 exemptions listed in the aforementioned FWRC
19.120.030, notice to proceed is required pursuant to FWRC 19.120.060(2), which states:
Approval and notice to proceed shall be required prior to tuidertaking any clearing,
grading, and/or tree and vegetation removal actions pursuant to the requirements of this
section. Approval and notice to proceed shall not be issued until the applicant can
demonstrate readiness to proceed with the site development work and the ability to
complete such work in a timely manner.
RESPONSE TO WSDOT
Pursuant to the Growth Management Act (GMA), WSDOT is required to comply with the City's
development code. The Revised Code of Washington (RCW) 36.70A.103 states:
Mr. Park
April 14, 2010
Page 2
State agencies shall comply with the local comprehensive plans and development
regulations and amendments thereto adopted pursuant to this chapter except as otherwise
provided in RCW 71.09.250 (1) through (3), 71.09.342, and 72.09.333. (Emphasis
added.)
The provisions of chapter 12, Laws of 2001 2nd sp. sess. do not affect the state's
authority to site any other essential public facility under RCW 36.70A.200 in
conformance with local comprehensive plans and development regulations adopted
pursuant to chapter 36.70A RCW.
The statutory authority and case law cited by WSDOT predate the GMA and RCW 36.70A.103 and have
no bearing on the issue of whether the City can condition the project. Furthermore, WSDOT makes no
showing that its NPDES permit precludes the City's review. Instead, WSDOT's own Stormwater
Management Plan 1.5 specifically states that, "In most instances, local stormwater management
standards will not override the requirements in the Highway Runoff Manual.... absent express
legislative direction, WSDOT is not subject to local ordinances in areas within WSDOT's purview."
("Emphasis added.) In this instance, the legislature has spoken, State agencies, such as WSDOT, are
required to comply with local development regulations.
To the extent that WSDOT claims that the work done on the Corrington wetland compensatory site and
those areas outside of WSDOT right-of-way adjacent to Interstate 5 where stream culverting and
relocation activities will take place are "essential public facilities," the City is still not precluded from
regulating this work. See City of Des Moines v. Puget Sound Regional Council, 98 Wn. App. 23, 34
(1999) (The Port of Seattle's expansion of the Sea-Tac aii port, an essential public facility, still had to
comply with Des Moines' reasonable permitting and mitigation requirements. The fact that this may have
made the project more costly did not relieve the Port of Seattle from this obligation.) and WAC 365-196-
550(5)(d), ("If an essential public facility does not present siting difficulties and can be permitted through
the normal development review process, project review should be through the normal development
process otherwise applicable to facilities of its type.")
Consistent with the GMA and case law, the City is not preventing WSDOT from proceeding with its
project or being unreasonable in imposing Condition #5_ Rather, the City is attempting to review the
project for potential environmental and public concerns and propose options, if needed, to mitigate those
concerns.
CLOSING
The review of TESC plans, haul routes, city inspections, and collection of fees as contained in Condition
#5 are standard processes of construction review within the City and WSDOT has made no argument that
it is unable to comply with these requirements. Condition #5 is necessary to provide a localized level of
review that maintains and protects the quality of the natural environment, such as the Hylebos Creek
watershed, which will be impacted by WSDOT's improvements. The City looks forward to the
completion of the Triangle Project as it will improve the level of service to residents of Federal Way. City
staff has already expedited review of WSDOT's Process IV application and will do the same as it pertains
to Condition #5.
09-104390 Doe. 7D. 53619
Mr. Park
April 14, 2010
Page 3
If you have any questions regarding this response, please contact me at 253-835-2638 or
matt.herrera@cityoffederalway. com.
Matthew Herrera
Associate Planner
c: Allison Hanson, WSDOT, Director of Environmental Services, ESO Mega Projects, 999 3rd Avenue, Suite 2424,
Seattle, WA 98104
Greg Pewins, Director of Community Development Services
Cary Roe, Director of PARCS and Public Works
Ken Miller, Deputy Director of Public Works
Isaac Conlen, Planning Manager
Peter Beckwith, Assistant City Attorney
Ann Dower, Senior Engineering Plans Reviewer
Deb Barker, Senior Planner
09-104390 Doc I 53619