17-105489-Ruling on Motion for Partial Dismissal-11-12-2021-V11
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Partial Dismissal Ruling - 1
BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
Greenline Warehouse A
Administrative Appeal of Process III and
MDNS
HEX 18-003; 19-001
RULING ON MOTION FOR PARTIAL
DISMISSAL
The Applicant and City of Federal Way (“City”) have moved for dismissal of several claims
in the Appellant’s February 21, 2019 Notice of Appeal (“Appeal”). The joint Applicant/City motion
for partial dismissal is granted in part.
Only two portions of the Applicant/City motion are denied – specifically the section
requesting dismissal of claims asserting cumulative impacts and the section requesting dismissal of
claims asserting noncompliance with the City of Federal Way Comprehensive Plan (“Comprehensive
Plan”).
As to the Comprehensive Plan claims, Process III review criteria expressly require
consistency with the Comprehensive Plan. The Applicant/City concede that under such
circumstances consistency can be required, but that conflicting zoning standards supersede such
comprehensive plan requirements. However, the Applicant/City have identified no conflict that
would preclude application of Comprehensive Plan policies for this project. Applicant/City also
assert that the Comprehensive Plan limits review criteria to a concomitant zoning agreement (“CZA”)
that applies to the project site. The Applicant/City’s reading of the Comprehensive Plan is not very
compelling on this issue – the Comprehensive Plan merely identifies that the project site is unique in
that it is subject to the CZA as opposed to the Zoning Code.
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There is similarly no basis for dismissal of Appeal claims based upon cumulative impacts.
The Federal Way Revised Code (“FWRC”) mandates consideration of cumulative impacts for the
mitigation of direct impacts. Even without this mandate, the Process III review criterion were likely
intended to include consideration of cumulative impacts and are construed along those lines.
Cumulative impact analysis may be limited to assessments of whether mitigation is necessary for
direct impacts, but even under that limitation the Applicant/City have not established the absence of
material questions of fact that would justify summary dismissal.
All other requests in the Applicant/City motion are granted. A large portion of the Appeal
asserts that the CZA is invalid. The Examiner no jurisdiction to consider the validity of the CZA.
The FWRC clearly provides that the CZA applies to the project site. In the absence of ambiguity on
applicability, the Examiner is compelled to apply the CZA without questioning its validity. The
Appellant also asserts noncompliance with conclusions of law in the ordinance adopting the CZA; the
contractual recitals of the CZA; and the purpose clause of the zoning district that applies to the
project site. None of these sources of authority restrict development. They can be used to clarify
ambiguous development standards, but do not serve as development standards themselves, at least
standards that independently regulate development.
Evidence Relied Upon
This ruling is based upon the following evidence and argument:
1. NOTICE OF APPEAL OF Greenline Warehouse “A” dated February 21, 2019 (with
attachments)
2. CITY OF FEDERAL WAY AND APPLICANT FEDERAL WAY CAMPUS’S JOINT
MOTION FOR PARTIAL DISMISSAL dated April 25, 2019 (with Kaylor Declaration).
3. CITY OF FEDERAL WAY AND APPLICANT FEDERAL WAY CAMPUS’S JOINT
REPLY dated May 20, 2019.
4. Oral argument on May 20, 2019.
5. SUPPLEMENTAL BRIEF ADDRESSING EXAMINER MEMORANDUM OF MAY
18, 2019 dated May 23, 2019.
6. CITY OF FEDERAL WAY AND APPLICANT FEDERAL WAY CAMPUS’S JOINT
SURREPLY IN SUPPORT OF JOINT MOTION FOR PARTIAL DISMISSAL dated
May 24, 2019.
FINDINGS OF FACT
The following are found to be material, uncontested findings of fact:
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Partial Dismissal Ruling - 3
1. The subject appeal is of a Process III decision (“Approval”) approving a warehouse to be built
at the existing Weyerhaeuser campus located at 337XX Weyerhaeuser Way South.
2. The project site is subject to a CZA that was approved by the Federal Way City Council on
August 23, 1994.
3. Section 3 of the CZA provides that the project site shall be zoned CP-1 upon annexation, with
the development standards for the CP-1 zone attached as Ex. C. The CZA has no set term or
expiration period expressly identified for applicability of the Ex. C regulations.
CONCLUSIONS OF LAW
1. Authority to Rule Upon Motions for Summary Dismissal. Federal Way hearing examiners
have authority to consider and rule upon motions for summary dismissal.
The Appellant contests the authority of City of Federal Way hearing examiners to summarily
dismiss hearing issues. Such authority is firmly rooted in an examiner’s authority to regulate the
admission of evidence and more specificall y to exclude irrelevant evidence. Ironically, the Appellant
itself made a motion to summarily dismiss issues for this same project in a prior stage of review.
This suggests that the Appellant knows full well that summary dismissal is both authorized and
standard practice in complex local land use proceedings.
As previously noted, the authority to summarily dismiss issues in a manner similar to judicial
summary judgment and CR 12 motions is rooted in the authority to exclude irrelevant evidence.
Hearing Examiner Rule of Procedure (“HERP”) 4b3 and 4b5 authorizes examiners to rule upon
procedural motions and to admit evidence. HERP 11b provides that evidence is admissible if it is
“relevant, material and reliable” Evidence is relevant if it makes a fact of consequence more or less
probable to be true without the evidence. State v. Arredondo, 188 Wn.2d 244 (2017). A fact is not
“of consequence” if, as a matter of law, resolution of the fact has no impact on the disposition of the
appeal. For example, if an examiner has no jurisdiction to consider an issue, any evidence presented
to address that issue is not “of consequence” and hence should be excluded as irrelevant. The HERP
do not address how matters of law are to be determined. Presumably, the Appellant would not be
adverse to authorizing parties to raise relevancy objections during a hearing and then affording them
an opportunity to present legal argument on those objections. If there is such an implied right to raise
objections during a hearing, then even better in advance of a hearing when parties have a more full
and fair opportunity to make those same arguments.
The Appellant makes the argument that authorizing motions for summary dismissal is a waste
of judicial resources. That is precisely the opposite of what a summary dismissal motion
accomplishes. As noted repeatedly by the courts, the object and function of summary judgment
procedure is to avoid a useless trial. Kelley v. Tonda, 198 Wn. App. 303 (2017). The purpose of
authorizing summary dismissal motions is to avoid the expenditure of time and money on factual
issues that have no relevance to the resolution of the appeal. This appeal could take as long as three
days. That extensive amount of time should not be wasted upon issues that have no bearing on the
outcome of the appeal.
Finally, the Appellant also asserts that motions for summary dismissal should not be
entertained because they render land use hearings too legally complicated for the general public.
Accessibility should be an important consideration in any review of procedural issues for local land
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Partial Dismissal Ruling - 4
use hearings. However, it cannot be ignored that the validity of any local land use decision and
procedural determination ultimately rests upon application of regulations and court opinions. As
previously noted, prehearing motions for summary dismissal simply serve as extended oppo rtunities
for parties to argue the law on issues pertinent to relevancy. In asserting that such opportunities
complicate hearings too much for public consumption, the Appellant is asserting that the simplicity of
a five minute verbal relevancy argument, no matter how complicated the legal issue, is preferable to
the research and briefing supporting a motion for summary dismissal. In effect, the Appellant
supports trading accuracy for simplicity. The resulting appeals and liability are clearly not worth that
trade-off. Just as significant, in appeals such as this, summary dismissal motions help simplify the
land use hearing. As noted previously, the parties anticipate that the hearing could take as long as
three days. By narrowing the factual issues under consideration during the appeal to only those that
raise relevant material questions of fact, hearing participants and observers will not be sidetracked
and buried by irrelevant factual issues that have no bearing on the resolution of the appeal.
2. Examiner Has No Authority to Address Validity of CZA. Federal Way hearing examiners
have no authority to address the validity of the CZA.
The Appeal challenges the CZA directly, claiming that (1) the City Council that adopted the
CZA cannot bind a successor Council; and (2) an ordinance can only be effective for a limited
amount of time. See Claims 3.1.1, 3.1.2, 3.6.1. As a quasi-judicial official, a hearing examiner “has
only the authority granted it by statute and ordinance.” HJS Development, Inc. v. Pierce County, 148
Wn.2d 451, 471, 61 P.3d 1141 (2003). A hearing examiner’s authority is limited to that expressly
granted by statute and ordinance and those additional powers impliedly necessary to carry out its
responsibilities. See, LeJeune v. Clallam County, 64 Wn. App. 257 (1992). The courts have
historically strictly applied this standard See, Id. (absent an express code provision, County
Commissioners have no authority to reconsider their quasi-judicial decisions); Chaussee v.
Snohomish County Council, 38 Wn. App. 630 (1984), (hearing examiner has no authority to consider
equitable estoppel defense because the examiner was not given this authority by ordinance or statute);
Exendine v. City of Sammamish 127 Wn. App. 574, 586-87 (2005)(hearing examiners do not have the
authority to enforce, interpret or rule on constitutional challenges).
It is acknowledged that the validity of the CRZ might become relevant if the City regulations
are ambiguous as to whether the CRZ applies. City regulations should be interpreted in a manner that
maintains their validity. See, State v. Marchand, 37 Wn. App. 741, 746 (1984), reversed on other
grounds, 104 Wn. 2d 434 (1985) (courts required to adopt interpretations of statutes that sustain their
validity). However, the Appellant has not identified any ambiguity in the code that would make the
validity of the CRZ relevant. As recognized by the Appellant , both the Comprehensive Plan
Designations Map and the Zoning Designations Map in the Comprehensive Plan shows the project
site as governed by Special Condition Number 5, which references Ordinance 93-190. Ordinance 93-
190 is the City regulation authorizing pre-annexation agreements such as the CRZ. There is no
ambiguity with this notation – it references pre-annexation agreements. The only pre-annexation
agreement recorded on the property is the CRZ and that CRZ has no expiration clause.
In their response briefing to the Applicant/City motion the Appellant argues ambiguity due to
the fact that the zoning map just references the general pre-annexation agreement ordinance (Ord. 93-
190) as opposed to the more specific ordinance adopting the CZA for the project site. Adoption of
the latter ordinance is arguably clearer, but the Appellant has presented no alternative interpretation
of Special Condition No. 5 that would reasonably suggest it could mean anything other than the CZA
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Partial Dismissal Ruling - 5
applied by the City in its approval. In the absence of more than one reasonable alternative
interpretation, Special Condition No. 5 cannot be characterized as ambiguous and its meaning is clear
– the CZA applies1.
Nothing in the FWRC expressly or impliedly authorizes a hearing examiner to invalidate
agreements approved by the City of Federal Way City Council. None of the Appeal claims regarding
CZA validity bear upon any pertinent ambiguous FWRC requirements. Appeal claim 3.6.1 could
conceivably be interpreted as encompassing issues beyond validity of the agreement, such as an
implied expiration clause, but in its responsive briefing the Appellant did not assert that anything
more than validity was at issue in 3.6.1. In this absence of any ambiguity and in this absence of any
express authority to invalidate the CZA, any Appeal Claims based solely upon a challenge to the
validity of the CZA must be dismissed. Appeal Claims 3.1.1, 3.1.2 and 3.6.1 are construed as solely
challenging validity and are dismissed for that reason.
3. Examiner Has No Authority to Address Validity of GMA Regulations. Hearing examiners
have no authority to invalidate City zoning regulations based upon noncompliance with the
Washington State Growth Management Act (“GMA”).
Appeal Claims 3.1.3, 3.1.4, 3.4a, and 3.7.1 assert that the City has failed to comply with
GMA requirements to periodically update its zoning and critical areas ordinances; to incorporate the
“best available science” in its development regulations; and to “appl[y] the [best available science
analysis] to the review of the Warehouse ‘A’ proposal.” The Applicant/City assert that any challenge
to the City’s GMA regulations must be brought to the Growth Management Act hearings boards,
which have exclusive jurisdiction to consider such challenges. The Appellant responds that it is not
challenging the substantive requirements of the City’s GMA regulations, but rather the procedural
failure of the City to update the regulations with best available science as required by the GMA. In
summary, regardless of whether the defect is substantive or procedural, for the reasons identified in
the preceding conclusion of law, Federal Way examiners have no authority to ignore or invalidate the
City’s GMA regulations. As correctly noted by the Applicant, the GMA hearing boards have
exclusive jurisdiction over validity of GMA regulations, which includes procedural requirem ents.
Appeal Claims 3.1.3, 3.1.4, 3.4a, and 3.7.1 are all based upon RCW 37.70A.172 and
37.70A.130, both of which apply to adoption of development standards do not govern local permit
review. As noted in the preceding paragraph, hearing examiners have no authority to invalidate city
ordinances. Further, RCW 36.70A.280(1) provides that the GMA hearing boards have exclusive
jurisdiction over challenges to the validity of GMA regulations, which includes the critical area
regulations at issue. Application of best available science could be pertinent to interpreting
ambiguous critical area standards, but in its response brief the Appellant never asserted that was the
purpose of its claims. Rather, the purpose was to challenge the validity of the City’s CZA to the
extent they have failed to be updated as required by the procedural standards of the GMA. Although
1 The same conclusion applies to applicability of GMA regulations – there is no ambiguity in application of the CRZ
that opens the door to assessing GMA validity.
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procedural, that is still an attack on the validity of the ordinances, which is beyond the authority of
hearing examiners. Claims 3.12, 3.1.3, 3.1.4, 3.4a, and 3.7.1 are all dismissed.
4. Proposal Must Comply With Comprehensive Plan. Process III review criteria mandate
consistency of the proposal with the Comprehensive Plan. Compliance is required to the extent it
does not conflict with applicable development standards. The Applicant/City motion to dismiss
Appeal Claims based on inconsistency with the Comprehensive Plan is denied.
Claims 3.5 and 3.8.4 assert various violations of the Comprehensive Plan. The Applicant/City
assert that conformance to the Comprehensive Plan provisions cited in the Appeal is not required.
They posit two reasons for this position: (1) the CZA and applicable case law provide that its zoning
terms supersede any conflicting comprehensive plan policies; and (2) the Comprehensive Plan
purportedly provides that it doesn’t apply to specific development projects for the project site.
Neither of these arguments are compelling. In summary, the Applicant/City didn’t identify any
conflict between the comprehensive plan and the CZA that would render the Comprehensive Plan
policies identified in Claims 3.5 and 3.8.4 as inapplicable. The Applicant/City has also misconstrued
the Comprehensive Plan’s interpretive guidelines regarding applicability to specific development
projects.
The Applicant/City acknowledges that FWRC 19.65.100.2.b.i requires all Process III
applications to be consistent with the Comprehensive Plan. Despite this, the Applicant/City argues
that the Comprehensive Plan by its own terms isn’t applicable to any Process III application because
of p. I-14 of the Comprehensive Plan, which provides that “…one cannot simply ask whether a
specific action or project would fulfill a particular FWCP [comprehensive plan] policy.” This
statement merely acknowledges that the impacts of a single project cannot be viewed in isolation
when reviewing consistency with comprehensive plan policies. Rather, as further noted in page I-14,
implementation of the policies “involves a range of City actions over time” and that application of
those policies must be considered within this range of actions as opposed to the project by itself.
Page I-14 is simply stating that applicability of Comprehensive Plan policies must be assessed from a
cumulative impact perspective that encompasses both development and regulatory decision making.
Although other interpretations of the p. I-14 language may also be possible, those possibilities
don’t include the interpretation of the Applicant/City, which is essentially that the p. I-14 language
mandates that the Comprehensive Plan does not apply to specific development projects. Such an
interpretation violates a basic canon statutory construction, specifically that statutes should be
construed so that no clause, sentence, or word is made superfluous, void, or insignificant; however, in
special cases the court can ignore statutory language that appears to be surplusage when necessary for
a proper understanding of the provision. State v. Evergreen Freedom Foundation, 1 Wash.App.2d
288, 299 (2018). If p. I-14 prohibits the application of Comprehensive Plan policies to specific
development projects, this would render FWRC 19.65.100.2.b. superfluous and void, since that
provision requires consistency with the comprehensive plan. Further, since the Applicant/City’s
2 Claim 3.1 by itself could be interpreted as encompassing more than CZA validity issues. However, the second
paragraph of Claim 3.1 asserts that current development standards should apply “for the following reasons” and then
lists subsections all limited to challenging the validity of CZA provisions. As structured, Claim 3.1 is read to
exclusively address CZA validity issues. If that was not the intent, Claim 3.1 is still dismissed because it fails to
provide sufficient notice of other intended grounds for appeal as required by FWRC 19.70.125.
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interpretation of p. I-14 nullifies FWRC 19.65.100.2.b., it conflicts with that provision. As argued by
the Applicant/City themselves, if a conflict exists between a comprehensive plan and a development
regulation, the development regulation takes precedence. See Citizens for Mount Vernon v. City of
Mount Vernon, 133 Wn.2d 861, 873-74 (1997). Given this standard, if p. I-14 provides that
Comprehensive Plan policies don’t apply to specific project applications and FWRC 19.65.100.2.b
requires compliance anyway, the conflicting provisions of FWRC 19.65.100.2.b prevail and
consistency with the Comprehensive Plan is still mandated.
The Applicant/City also reference p. II-17 of the Comprehensive Plan, which provides that the
CRZ CP-1 designation is unique to the Weyerhaeuser property. This language merely identifies that
the CP-1 designation is different from other land use map designations in that it only applies to one
development site and also that its implementing regulations are in a CZA as opposed to the Zoning
Code. Nothing in this language suggests that the rest of the Comprehensive Plan doesn’t apply to the
Weyerhaeuser property.
Finally, as mentioned previously, the Applicant/City identify that case law holds that Zoning
Code regulations supersede any conflicting comprehensive plan policies. See Citizens . Mount
Vernon, infra. Section 4 of the CZA also embodies this principle by expressly requiring that “to the
extent Federal Way policies imposes development standards conflicting with this Agreement, this
Agreement shall control.” If in fact there is a conflict between the Comprehensive Plan policies cited
in the Appeal and CZA development standards, CZA development standards will control. Unless and
until such a conflict is identified, Appeal Claims 3.5 and 3.8.4 cannot be dismissed on the basis of
conflicts with the CZA.
The Applicant/City apparently are arguing that a conflict exists between the City’s Zoning
Code and Comprehensive Plan by asserting that the Appellant’s construction of applicable
Comprehensive Plan policies would preclude a use that is specifically authorized by the Zoning
Code. See, e.g. Applicant/City Reply, p. 10, arguing that a land use decision may not invoke a
comprehensive plan’s general purpose statements to overrule the specific authority granted by the
Zoning Code. However, the Comprehensive plan policy assertions made in the Appeal do not have
to be read as precluding a use authorized by the Zoning Code. Rather, the Appeal can be read as
asserting that the proposal is precluded by the comprehensive plan. In other words, the fact that the
Applicant’s proposed warehouse may violate the Comprehensive Plan policies listed in the Appeal
doesn’t mean that the Appellant is arguing that any and all warehouse use is precluded by the
comprehensive plan. Unless and until the Applicant/City is able to identify that Appellant’s
interpretation of a Comprehensive Plan policy would preclude any warehouse use that could be
proposed, that interpretation does not conflict with a Zoning Code provision that specifically
authorizes warehouse use. Applicant/City has as yet to present any argument along these lines.
Given that none of the reasons cited by the Applicant/City for dismissal of Claims 3.5, the 3.5
subsections and 3.8.4 have merit, the request for dismissal of those claims is denied.
5. Conclusions of Law in CRZ Ordinance Serves as Interpretative Guides Only. In Appeal
Claims 3.3, 3.6.10, and 3.6.11, Appellant asserts that the Approval violates the Conclusions of Law
contained in Ordinance 94-219. As clearly stated in Section 2 of Ordinance No. 94-219, the
conclusions of law were issued to demonstrate compliance with the City’s criteria for approval of an
initial annexation zoning classification and concomitant agreement. Nothing in Section 2
demonstrated any City Council intent to apply the conclusions of law as regulations governing future
property use and development. Claims 3.3, 3.6.10 and 3.6.11 are dismissed.
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6. Contract Recitals Serve as Interpretive Guides Only. CZA recitals do not serve as
development restrictions on the property. Appeal claims based upon noncompliance with CZA
recitals are dismissed.
Appeal Claim 3.6.3 asserts that the proposal “does not ‘preserve the unique features of the
site’ as required by the CZA.” The Appeal does not identify what part of the CZA contains this
requirement and there is no part that contains the quoted language. However, Recital C of the CZA
notes that Weyerhaeuser’s intent in developing the property included “preserving the unique natural
features of the site.” It appears this is the portion of the CZA subject to Appeal Claim 3.6.3. In its
motion, the Applicant/City asserts that Claim 3.6.3 should be dismissed because contract recitals on
their own do not impose requirements. The Applicant/City also request dismissal of Appeal Claim
3.4, which expressly references noncompliance with Recital C.
Recital C doesn’t have any regulatory impact beyond providing clarification as to intent for
ambiguous contract provisions. On its own, Recital C does not govern the terms of development.
As ruled in applicable case law, contract recitals supply only background for the paragraphs which
set forth the bargain that the parties struck on the date of execution of the contracts. The preliminary
recitals are available to interpret the meaning of the contracts only when and if their meaning is
unclear. Rains v. Walby, 537 P.2d 833, 836 (1975).
Appeal Claims 3.4 and 3.6.3 are dismissed. The parties may use the recital to clarify
ambiguous contractual provisions, but only after first identifying the ambiguous contractual provision
that needs clarification by the recital.
7. Purpose Clauses Serve as Interpretive Guides Only. Zoning district purpose clauses do not
serve as development restrictions on the project site. Appeal claims based upon noncompliance with
zoning district purpose clauses are dismissed.
Appeal Sections 3.6.2 and 3.6.4 assert violations of the purpose clause of the CP-1 district as
it applied when the City approved the CZA. In their motion, the Applicant/City assert that Claims
3.6.2 and 3.6.4 should be dismissed because purpose clauses on their own do not impose
requirements. Agreed. As noted in Am Jur, “[w]hile a statement of purpose embodied in a zoning
ordinance may be used to resolve ambiguities, it cannot be employed to bypass the specific language
of the ordinance.” Am Jur.2d, Zoning and Planning, Section 603, “Context of language – Preambles,
titles, captions, and purpose clauses.” Accord, Lakeside Indus. v. Thurston County, 119 Wn. App.
886, 898 (2004)(holding that Growth Hearings Board “may not invoke the plan's general purpose
statements to overrule the specific authority granted by the Zoning Code”). For these reasons,
Appeal Claims 3.6.2 and 3.6.4 are dismissed.
8. Appeal Assertions Claiming Noncompliance with Entire Code Lack Specificity and Should be
Dismissed. Appeal claims based upon noncompliance with the entire City’s municipal code lack
specificity required by City regulations and for that reason are dismissed.
FWRC 19.70.125 requires that “the scope of agency decision appeals is limited to the errors
of law or specific factual findings disputed in the notice of appeal.” The City/Applicant requests
dismissal of Claim 3.7.4 of the Appeal because it vaguely asserts noncompliance with “the standards
of the City Code.” Agreed. Asserting noncompliance with the City’s municipal code as a whole is
tantamount to a failure of identifying an y error of law, since only Code violations can serve as a
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hearing examiner basis for finding an error of law. The appeal content requirements of FWRC
19.70.125 are designed to give the parties to an appeal fair due process notice of what needs to be
addressed in an appeal. At this juncture it is too late in the process to authorize an amendment of the
Appeal to provide more clarity. For these reasons, Claim 3.7.4 is dismissed.
9. Cumulative Impacts May be Considered in Assessing Compliance with Process III Review
Criteria. Cumulative impacts are pertinent to application of Process III review criteria. Appeal
claims based upon assertions of cumulative impacts should not be dismissed on that basis.
The Applicant/City maintain that Appeal Claims 3.2 3.5, 3.6, 3.7 and 3.8 should be dismissed
in whole or in part to the extent those claims are based upon allegations of cumulative impacts,
because cumulative impacts are not expressly addressed b y Process III permitting criteria. The
Appellant asserts that cumulative impacts are pertinent given that two other projects adding to
cumulative impacts are proposed by the Applicant in the same vicinity as the proposal. The
Appellant also identifies an FWRC provision that expressly requires consideration of cumulative
impacts for the mitigation of direct impacts.
In the absence of any express mandate, it is unclear whether cumulative impacts can be
considered in application of general permit review criteria. As best as can be ascertained from
pertinent case law, cumulative impacts can be considered if the permit review criteria are broad
enough to encompass such considerations. In point of fact, the Process III criteria are about as broad
as any review criterion can possibly be. The FWRC 19.65.100(2)(a)(iii) requirement that the permit
be consistent with “…the public health, safety and welfare” is coterminous with the entire expanse of
a city’s police powers. See, Wash. Const. Article XI, Section 11; Baker v. Snohomish County, 68
Wn. App. 581 (1992)(municipalities are constitutionally vested with authority to enact ordinances in
furtherance of public health, safety, morals, and welfare). Given the long-standing express mandates
to consider cumulative impacts in various types of Shoreline Management Act and State
Environmental Policy Act review, it is reasonable to conclude that regulating cumulative impacts is
within the police powers of a City and that, therefore, a regulation requiring consistency with the full
expanse of a City’s police powers to regulate impacts of development includes the mitigation of
cumulative impacts.
Case law supports the concept that cumulative impacts are pertinent to review criteria as
broad as requiring consistency with the “public health, safety and welfare.” Two cases are most
illuminating, specifically Hayes v. Yount, 87 Wn.2d 280, 552 P.2d 1038 (1976) and Tucker v. Gorge
Commission, 73 Wn. App. 74 (Wash. Ct. App. 1994). Hayes involved a request for a shoreline
substantial development permit for the proposed filling of portions of an estuary for a landfill. The
Shoreline Hearings Board found that the proposed filling would not create any significant adverse
environmental impacts on its own, but that cumulatively if multiple projects were authorized to do so
there would be significant impacts. On that basis and others, the Hearings Board denied the
substantial development permit. The state supreme court upheld the consideration of cumulative
impacts as follows:
Logic and common sense suggest that numerous projects, each having no significant
effect individually, may well have very significant effects when taken together. This
concept of cumulative environmental harm has received legislative and judicial
recognition. [citations omitted] In the Shoreline Management Act of 1971 itself, the
legislature and people of this state recognized th e necessity of controlling the cumulative
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adverse effect of "piece-meal development of the state's shorelines" through "coordinated
planning" of all development, not only "substantial development." RCW
90.58.020. See WAC 197-10-440 (8) (c) (State Environmental Policy Act of 1971
guideline). The fact that respondent himself cannot control future filling in the Snohomish
River estuary does not, in itself, render arbitrary and capricious the board's concern over
the ultimate impact of such development in light of its statutory duties. See RCW
90.58.140; 90.58.020.
The Hayes decision is arguably distinguishable because, although cumulative impacts are not
expressly included in the mandatory review criteria for shoreline substantial development permits,
WAC 173-27-150 requires consistency with SMA policies for shoreline substantial development
permits, which includes the consideration of cumulative impacts in RCW 90.58.020.
A similarly grounded case is Tucker v. Gorge Commission, 73 Wn. App. 74 (1994). Tucker
concerned application of the Columbia River Gorge National Scenic Area Act (“Act”) to a proposed
subdivision by the Columbia River Gorge Commission. As summarized in the appellate court
decision, the Act specifically provides that the Commission must evaluate applications such as that of
the subdivision applicant’s under the standards and purposes contained in the Act. 16 U.S.C. §
544h(c). These standards and purposes are as follows: the context of the proposed action; its
intensity; its relationship with other similar actions; proven mitigation measures; and the protection
and enhancement of the scenic, cultural, recreational and natural resources of the Scenic Area. 16
U.S.C. § 544(a), 544a. The Commission didn’t find any compliance issue with the subdivision
proposal individually, but denied the proposal at least in part on the basis that "[a]llowing the
proposed land division would establish a precedent for dividing the adjacent ownerships into 5-acre
parcels." Citing the Hayes decision for the proposition that cumulative impacts are a valid
consideration in development review, the Court of Appeals upheld the Commission’s denial of the
proposal.
Tucker too is also arguably distinguishable because one of the review criteria was
“relationship with other similar actions3,” although this criterion was not singled out by the Tucker
court as a reason for finding cumulative impacts pertinent. However, as previously noted, the
Process IIII “public health, safety and welfare” criterion is broad enough to encompass cumulative
impacts. As noted in the Hayes decision, “logic and common sense” dictate that several projects that
have insignificant impacts individually can have significant impacts collectively. It is reasonable to
conclude that any projects contributing to these significant impacts are not consistent with the “public
health, safety and welfare.”
Even though Tucker and Hayes are distinguishable in that their review criteria require
consideration of cumulative impacts, the distinction is not that significant since FWRC 19.100.030(2)
requires consideration of cumulative impacts in assessing whether mitigation is necessary for direct
impacts. This FWRC requirement renders Process III review criteria similar but arguably more
limited than the cumulative impact review requirements for Tucker and Hayes. Under the expressio
3 The “relationship” factor is presented as summarized in the court opinion. In full, the factor, as quoted from 16
U.S.C. § 544a3, provides a follows: (3) “the relationship between a proposed action and other similar actions which
are individually insignificant but which may have cumulatively significant impacts.” (emphasis added).
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unius est exclusio alterious maxim of statutory construction, the expression of one is the exclusion of
the other. Legislative inclusion of certain items in a category implies that other items in that cat egory
are intended to be excluded. See Landmark Dev., Inc. v. City of Roy, 138 Wn. 2d 561, 571 (1999).
Given this maxim, cumulative impact analysis for the proposal is arguably limited to mitigation
issues for direct impacts. However, even if this limitation applies, the Applicant/City have made no
showing that there is no material question of fact attaching to the cumulative impacts claimed in the
Appeal.
For the reasons outlined above, cumulative impacts are found pertinent to Process III review
and their reference in Appeal Claims 3.2, 3.5, 3.6, 3.7 and 3.8 is not grounds for their dismissal in
whole or in part. The Applicant/City request for dismissal of those claims is denied.
10. Past Changes to Hydraulic Regime Only Relevant to Extent Affects Current Project’s
Consistency with Applicable Development Standards. Claim 3.7.6 of the Appeal states that the
Project is not consistent with the “public health, safety, and welfare” because the “City has not taken
action to remediate or mitigate for physical actions taken on the site by the current property owner
that have changed the hydraulic regime on the site.” The Applicant/City assert this claim should be
dismissed because it is outside the scope of the appeal. The Applicant/City is correct in asserting that
it cannot be forced to mitigate problems created by other projects or the actions of other people.
However, to the extent that remediation of the site is necessary to enable compliance with City
development standards, remediation and mitigation may be pertinent. To this end, Claim 3.7.6 is
dismissed but evidence of past actions impairing hydraulic function may still be admissible as
pertinent to City development standards.
As all Counsel to this proceeding are likely very well aware, one of the constitutional pre-
requisites to imposing conditions to remedy a problem is establishing that the developer creates or
exacerbates that problem. Burton v. Clark County, 91 Wn. App. 505 (1998). The proposed
warehouse has nothing to do with any changes to the hydraulic regime caused by prior property
owners. For this reason, past changes to the hydraulic regime alone are not grounds for City
mitigation and Claim 3.7.6 is dismissed for that reason. However, the Washington Surface Water
Design Manual, adopted by the City via FWRC 16.20.010, in Section 1.2.3 requires stormwater
facilities that mitigate stormwater flows to those of predevelopment, forested conditions.
Requirements like this can have the effect of making the developer “undo” past changes to the
hydraulic regime. The dismissal of Claim 3.7.6 should not be construed as precluding consideration
of past changes to the hydraulic regime when pertinent to criteria such as Section 1.2.3 of the
stormwater manual (if, in turn, those criteria are pertinent to claims timely raised in the Appeal).
ORDER
For the reasons outlined in the Conclusions of Law, it is Ordered as follows:
The request to dismiss the following claims by the City/Applicant are granted: Appeal Claims 3.1,
3.1.1, 3.1.2, 3.1.3, 3.1.4, 3.3, 3.4, 3.4a, 3.6.1, 3.6.2, 3.6.3, 3.6.4, 3.6.10, 3.6.11, 3.7.1, 3.7.4 and 3.7.6.
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The request to dismiss the following claims by the Cit y/Applicant are denied: Appeal Claims 3.2, 3.5
and its subsections, 3.6, 3.7, 3.84 and 3.8.4.
ORDERED this 26th day of May, 2019.
Hearing Examiner for Federal Way
4 Declining to dismiss claims 3.5, 3.6, 3.7 and 3.8 should not be read as construing those sections as applying
without reference to the subsections for each. Each of those claims are construed as introductory comments that
apply to their respective subsections due to the their “following reasons” language. Claims 3.5, 3.6, 3.7 and 3.8 only
apply to the extent specifically identified in their subsections.