HEX #18-003 Motion for Partial Dismissal1
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY
In Re:
Appeal by Save Weyerhaeuser Campus of the
Process III Project Approval for Greenline
Warehouse A (File No. 16-102947-UP).
In Re:
Appeal by Save Weyerhaeuser Campus of the
Mitigated Determination of Nonsignificance
(MDNS) for Greenline Warehouse A (File No.
16-102948-SE).
CITY OF FEDERAL WAY AND
APPLICANT FEDERAL WAY
CAMPUS'S JOINT REPLY IN SUPPORT
OF THEIR MOTION FOR PARTIAL
DISMISSAL
I. INTRODUCTION
In its response ("Response") to the joint motion for partial dismissal ("Motion") filed by
Respondents Federal Way Campus LLC ("Applicant") and City of Federal Way ("City"),
Appellant Save Weyerhaeuser Campus ("Appellant") has failed to explain why the Hearing
Examiner should deny any of the relief requested by Respondents. For the reasons explained in
the Motion and in this reply, many of the claims raised in Appellant's Notice of Appeal are
outside of the Examiner's jurisdiction to review the City's Process III Project Approval
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 1 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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("Process III Approval") of Applicant's application to develop the Woodbridge (formerly
Greenline) Warehouse A project ("Project") or are otherwise meritless on their face.
II. AUTHORITY
A. The Examiner may consider any "appropriate" motions, including motions raising
jurisdictional and other purely legal issues.
Appellant asserts that the Examiner may not consider the Motion because the Examiner is
not authorized by the Hearing Examiner Rules ("HER" or "Rules") or the Federal Way Revised
Code ("FWRC" or "Code") to grant the relief requested: dismissal of those aspects of the appeal
that the Examiner lacks jurisdiction to consider or that lack facial merit as a matter of law.
Appellant maintains that the claims challenged in the Motion are not appropriate for resolution
on summary dismissal and may only be addressed at a hearing. While this may be true as to
factual issues, the Motion does not base its arguments on Appellant's factual allegations.
Instead, the claims discussed in the Motion are outside the Examiner's jurisdiction or without
merit for reasons that are entirely legal.
Appellant's response is inconsistent, first and foremost, with the instructions of the
Examiner in this case. In the March 28, 2019 telephonic prehearing conference, the Examiner
authorized all parties to file prehearing motions. The Examiner expressly indicated that
prehearing motions were the appropriate way to resolve legal questions concerning the
applicability of the Weyerhaeuser Company Concomitant Pre -Annexation Zoning Agreement
("Concomitant Agreement") to the Process III Approval. Also, the Examiner indicated further
that the prehearing motions could discuss other, purely legal issues as well. The Examiner
memorialized this discussion in his April 10, 2019 prehearing order, which places no limit on the
subject of prehearing motions. Appellant did not challenge this prehearing order.
CITY AND APPLICANT'S REPLY IN SUPPORT OF
PARTIAL DISMISSAL - Page 2 of 19
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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The Examiner's actions were fully consistent with both general and specific provisions of
the Rules and the authority granted by FWRC 2.95.050. The Examiner has broad discretion to
"consider and rule upon procedural and other motions appropriate to the proceedings." HER
4(b)(5) (emphasis added). Additionally, HER 6(d) gives parties the unqualified "right" to bring a
"motion," and HER 16 authorizes applications to the Examiner "for an order" to be made "by
motion" and allows the Examiner to an issue an order based on the motion with or without oral
argument. Nothing in the Rules or the Code limits the scope of motions that may be considered
by the Examiner in the manner asserted by Appellant.
Other Rules specifically authorize the relief Respondents request. HER 9(a) allows
parties to bring motions concerning jurisdiction. The rule indicates that jurisdictional
requirements include filing dates and fees, but contrary to Appellant's assertion, it does not limit
jurisdictional matters to such procedural matters. Even if it did, all of Respondents' arguments
in this Motion, jurisdictional and otherwise, would be authorized by HER 9(e), which allows the
Examiner to dismiss an appeal that is "without merit on its face." Indeed, Appellant's statement
that HER 9(e) concerns matters "that are obviously outside the Federal Way appeal process
jurisdiction," Response at 5, apparently concedes that Respondents' jurisdictional arguments are
appropriate. Appellant provides no support or explanation, however, for its assertion that HER
9(e) is "limited" to such matters, see id., and nothing in the rule so indicates. The claims
challenged in the Motion would fail even if all of Appellant's factual allegations are true; in
other words, they are facially meritless. If the definition of "facial merit" were intended to be
synonymous with "jurisdiction," rather than to encompass it, the rule would simply say
"jurisdiction."
CITY AND APPLICANT'S REPLY IN SUPPORT OF
PARTIAL DISMISSAL - Page 3 of 19
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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More broadly, Appellant provides no justification for its argument that the Motion
impermissibly conflicts with the "informal" appeal hearing described in HER 9(k). For one
thing, that rule's text concerns the procedures of the hearing itself, not prehearing motions. Even
if it did apply to the appeal process more broadly (and even if the Motion could be deemed
categorically different from the other prehearing motions expressly allowed by other rules), HER
9(k) provides that the process, albeit informal, will be "designed in such a way that the evidence
and facts relevant to the proceeding will become readily and efficiently available to the Hearing
Examiner." (Emphasis added). This echoes the authorization in the Code for the Examiner to
"establish rules of procedure for the efficient and fair conduct of matters." FWRC 2.95.050
(emphasis added). Dispensing with claims that the Examiner lacks jurisdiction to consider, or
that are without merit purely as a matter of law, enables a more efficient identification of
"evidence and facts relevant to the proceeding."
Indeed, these considerations are particularly relevant in the above -captioned appeal,
where Appellant is attempting to challenge the Concomitant Agreement's efficacy and
applicability in the first instance. See, e.g., claims 3.1, 3.1.1, 3.1.2. In issuing the underlying
Process III Project Approval and SEPA MDNS, the City evaluated the Applicant's proposed
Project exclusively under the standards and criteria identified in the Concomitant Agreement.
Appellant's primary argument on appeal contends that these same standards are inapplicable.
Without a preliminary, dispositive motion to resolve this fundamental dispute, the parties will
almost certainly tailor their respective arguments, testimony and other evidence to irreconcilably
different regulatory standards at the hearing on the merits. It is difficult to envision a more
convoluted, less efficient administrative proceeding.
CITY AND APPLICANT'S REPLY IN SUPPORT OF
PARTIAL DISMISSAL - Page 4 of 19
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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Finally, it is noteworthy that Appellant itself has already attempted — unsuccessfully — to
seek similar, summary relief in the above -captioned appeal. See Appellant's Motion for
Summary Dismissal of Interpretation (January 2, 2019). While Appellant's previous motion was
ultimately denied on its merits, see Order Denying Motion for Summary Dismissal of
Interpretation, Appeal No. 18-01 (January 18, 2019), it is undisputed that the Examiner allowed
the motion to be presented, argued and considered. See Pre -Hearing Order, Appeal No. 18-01
(January 11, 2019). Appellant cannot credibly challenge Respondents' ability to file dispositive
motions when Appellant itself has moved for similar relief in the same proceeding.
B. Appellant's claims regarding the applicability of the Concomitant Agreement
cannot survive.
1. The Examiner lacks jurisdiction to consider whether the Concomitant
Agreement is valid.
Contrary to page 7 of the Response, Respondents do not assert that the Examiner "lacks
jurisdiction to review [any] claims regarding the Concomitant Agreement." Respondents have
not challenged the Examiner's jurisdiction to review, for example, claims 3.6.2 to 3.6.4, which
argue that the Process III Approval did not comply with requirements in the Concomitant
Agreement (though those claims fail for other reasons). Instead, Respondents argue that the
Examiner's authority to review "errors of law," FWRC 19.70.125, does not extend to
determining whether the Agreement is valid.
Appellant attempts to rescue its argument, claiming it is not about whether the Agreement
is valid per se, but rather about whether the City correctly determined that it governed the
Process III Approval in this case. The problem with this framing is that the only "error"
Appellant has asserted is the City's reliance on an (allegedly) invalid agreement. Appellant has
not claimed that a zoning ordinance other than the CP-I regulations governs development on the
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 5 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
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Property. Nor could it, because the Concomitant Agreement, and the CP-I regulations it
contains, are part of the Code under FWRC 19.190.040 and are therefore the applicable law.
Instead, Appellant has continuously argued that because of legal principles separate from the
provisions of the Code, the Concomitant Agreement is "void," "ultra vires," and "completely out
of date." See Appellant's June 4, 2018 Comment Letter, at 7-10. But just as the Examiner does
not have the power to declare a law unconstitutional, the Examiner does not have the power to
declare a law "void," much less "completely out of date." 1
This is fatal both to Appellant's claims that the Concomitant Agreement is invalid on its
own terms (claims 3.1, 3.1.1, 3.1.2, 3.6.1) and its claims under the Growth Management Act
("GMA") (claims 3.1.3, 3.1.4, 3.1.4a, and 3.7.1). In the GMA claims, Appellant argues that the
Process III Approval was invalid because (1) the Code requires the City to consider whether
applications are consistent with the Comprehensive Plan, (2) the Comprehensive Plan requires
development regulations to be updated under the GMA, and (3) the CP-I regulations have not
been updated to comply with GMA requirements. This is simply another assertion not that the
CP- I regulations were erroneously applied, but that they are invalid. The Examiner lacks
jurisdiction over these claims as well.
2. The Examiner lacks jurisdiction to consider challenges to the Concomitant
Agreement's adoption or challenges based on the GMA.
As explained at page 9 of the Motion, even if the Examiner had jurisdiction to consider
whether a law is valid, the statute of limitations for such a claim has long since expired.
1 Appellant repeatedly brings up the time that has passed since the Agreement was enacted but
points to no law indicating that concomitant zoning agreements expire after 25 years. The purpose of the
references to the Agreement's age is unclear, but to the extent they represent a request for the Examiner to
waive or modify the Agreement's requirements because it is "out of date," the Examiner lacks jurisdiction
to consider such a request. See FWRC 19.70.125.
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 6 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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Appellant asserts that it could not have had standing to challenge the Concomitant Agreement
outside the context of a particular project proposal, but Ordinance 93-190, which authorizes
judicial review of the Concomitant Agreement, does not limit appeals in that manner. Moreover,
Appellant's arguments in claims 3.1.1 and 3.1.22 about the inherent validity of the Concomitant
Agreement depend on establishing that the Concomitant Agreement represents an impermissible
exercise of Council authority. This is an argument that the Concomitant Agreement was invalid
when it was adopted, not an argument that depends on the factual context of a permit application.
Challenges to the adoption of Ordinance 94-219 or the Concomitant Agreement were required to
be brought "within fourteen days after the date of the hearing at which the council acted to pass
the written ordinance." See Declaration of Courtney A. Kaylor filed with Respondents' Motion
to Dismiss ("Kaylor Declaration"), Ex. A, Ord. 93-190, 19-103(d) and 19-104(h); FWRC
1.35.040.4 and 050.8.
The same is true of Appellant's suggestion that the Examiner should apply the "balancing
test" described in Swinomish Indian Tribal Cmty. v. Skagit Cty., 138 Wn. App. 771, 777, 158
P.3d 1179, 1182 (2007), to analyze the "benefits and detriments to the public" of the Agreement.
Response at 12. The benefits and detriments were analyzed by the Council in 1994. Swinomish
in no way suggests that every concomitant agreement may be reconsidered under this analysis
with every successive permit application (or, that even if they could, the Examiner, rather than
the Superior Court, could apply the test).
2 Claims 3.1 and 3.6.1, which assert that the City "erroneously determined" that the Concomitant
Agreement applied, should not be considered to assert separate errors of law because they include no
legal citation or reasoning. The only identifiable legal errors Appellant has asserted regarding the
Agreement's application — in its comment letters, in the Notice of Appeal, and in its Response — have
been based on the GMA or the legal principles in claims 3.1.1 and 3.1.2.
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 7 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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Additionally, the Examiner lacks jurisdiction over the GMA claims for the two
independently sufficient reasons described in the Motion: challenges under the GMA may only
be heard by the Growth Management Hearings Board under RCW 36.70A.280(1), and the GMA
does not "directly regulate site -specific land use activities." Woods v. Kittitas Cty., 162 Wn.2d
597, 612, 174 P.3d 25, 33 (2007). Appellant provides no explanation for why "procedural"
GMA claims should be considered differently from "substantive" GMA claims in this regard.
See Response at 13. Nor does Appellant provide support for its assertion that because "the
Growth Board does not entertain appeals on site -specific actions," this necessarily means the
Examiner must do so. See id. This assertion is incorrect: Washington law simply does not
permit the consideration of whether individual permitting decisions comply with the GMA.
Woods, 162 Wn.2d at 612; see also Timberlake Christian v. King County, 114 Wn. App. 174,
182, 61 P.3d 332, 336 (2002). And Appellant's arguments demonstrate precisely why this is: it
would be absurd and impracticable to require the permit process to analyze not just whether
individual permits comply with the Comprehensive Plan but also whether every law that applies
to those permits comply with both the Comprehensive Plan and with the GMA. The Plan
policies cited in the Response appear to recognize this, as (like many of the policies referenced in
claim 3.5) their text refers to action by the City. They are not requirements bearing on project
applicants, as an individual project application cannot update area -wide development regulations.
3. The Concomitant Agreement is valid.
Even if the Examiner had jurisdiction to consider the validity of the Concomitant
Agreement, any claim of invalidity lacks merit on its face. Other than the GMA claims, the
Notice of Appeal asserted only two "errors of law" regarding the application of the Concomitant
Agreement: claim 3.1.1, asserting that adoption of the Concomitant Agreement impermissibly
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 8 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
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binds future city councils, and claim 3.1.2, asserting that the Concomitant Agreement is invalid
because it lacks a "time interval" under RCW 35A.14.330. Because the scope of this appeal is
"limited to the errors of law raised ... in the notice of appeal," FWRC 19.70.125, a
determination by the Examiner that these claims are without merit on their face is sufficient to
conclude that the Concomitant Agreement is valid and enforceable for purposes of this appeal.
As Respondents explained in the Motion, claim 3.1.1 is without merit because a city
council, when statutorily authorized, may bind a future city council through a "contract between
property owners and a city concomitant to zoning changes," or another type of "agreement
limiting the future exercise of a municipality's land use power." Swinomish, 138 Wn. App. at
777. That the City was authorized to enter the Concomitant Agreement is undisputed.
Appellant's observation that the city council cannot unilaterally amend the Concomitant
Agreement is thus irrelevant, and its contention that RCW 36.70B.170 "does not retroactively
validate an otherwise invalid Concomitant Agreement" is a non sequitur. The Concomitant
Agreement did not need to be "validated" by RCW 36.70B.170. Instead, that law's recognition
of the general validity of such agreements (which inherently bind future councils) disproves
Appellant's contention that such agreements are necessarily ultra vices.
The Response does not dispute any of Respondents' arguments for the dismissal of claim
3.1.2. Appellant has thus effectively conceded that, for the reasons explained in the Motion, the
lack of a time interval does not invalidate the Concomitant Agreement.
C. Appellant's claims based on the Comprehensive Plan are without merit.
Appellant argues at length that FWRC 19.65.100(2)(a)(i) requires Process III approvals
to be consistent with the Comprehensive Plan, a proposition that Respondents have not disputed.
The Response does not address the argument that was actually made in the Motion: the
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 9 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
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Comprehensive Plan specifically provides that "[d]evelopment standards and conditions for the
Corporate Park designation are unique to Weyerhaeuser's property and are outlined in [the
Concomitant Agreement]." Kaylor Declaration, Ex. D, Comprehensive Plan, II-17. In other
words, because the Plan indicates that permit applications for the Property will be considered
under the CP-I standards in the Concomitant Agreement, a project that is consistent with the CP-
I standards is necessarily also consistent with the Plan under the terms of the Plan itself.
The Plan's reference to the specific CP-I standards underscores that, as explained in the
Motion, review of a land use decision "may not invoke [a comprehensive] plan's general purpose
statements to overrule the specific authority granted by the zoning code." Lakeside Indus. v.
Thurston Cty., l l 9 Wn. App. 886, 897, 83 P.3d 433 (2004). The Lakeside court emphasized this
holding even though, as Appellant points out, it determined that relevant code required
consistency with the comprehensive plan and that the application at issue was consistent.
Alongside this fact -specific holding, the court repeatedly affirmed the general legal principle that
a decisionmaker "may not invoke the plan's general purpose statements to overrule the specific
authority granted by the zoning code." Id. at 899. This principle is especially applicable in this
case, where the zoning regulations are not just authorized but specifically referenced in the Plan
itself. What is more, the text of the Plan echoes the Lakeside rule, warning that "one cannot
simply ask whether a specific action or project would fulfill a particular FWCP policy." Kaylor
Declaration, Comprehensive Plan, p. I-14. Appellant does not explain why the Director, in
applying the Comprehensive Plan, should have ignored either this statement or the Lakeside rule
more broadly.3
3 In addition, Appellant does not dispute the arguments at page 15, footnote 5 of the Motion that
claims 3.5.1 through 3.5.10 cite isolated phrases that, when read in context, are inapplicable to the Process
III Approval. Appellant's failure to respond to these arguments concedes that they are correct. Indeed,
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 10 of 19 701 Fifth Avenue, Suite 6600
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Even if there were a conflict with the Comprehensive Plan, the Concomitant Agreement,
which is incorporated into the Code under FWRC 19.190.040, establishes that "to the extent
Federal Way policies impose development standards conflicting with this Agreement, this
Agreement shall control," and that any comprehensive plan designation for the Property must be
"compatible with the zoning agreed to in Section 3 of this Agreement." Kaylor Declaration, Ex.
C. Thus, in the event of a conflict, the Concomitant Agreement would control.
D. Appellant's claims based on nonregulatory legislative findings and recitals are
without merit.
Appellant misunderstands the nature of the arguments in Section E of the Motion
regarding legislative findings and recitals. Appellant construes the Motion as asserting that the
City should not "apply the whole applicable ordinance," see Response at 18, but that is incorrect.
Respondents are not arguing that certain portions of applicable legal documents should be
ignored, but rather that the provisions of those documents cited in the Notice of Appeal are not
"requirements" at all.
These arguments are fully laid out in section E of the Motion, but as just one example,
Appellant asserted in claim 3.4 that the Process III Approval was invalid because the Project
does not comply with Recital C of the Concomitant Agreement, which states: "Weyerhaeuser
desires to develop its Property with maximum flexibility which will insure optimal development,
while preserving the unique natural features of the site." Kaylor Declaration, Ex. C,
Concomitant Agreement, pp. 1-2. Appellant's contention that this requires development to
by referring to the Plan provisions cited in the Process III Approval as "generic and not related
specifically to the CP-I designation," Response at 15, Appellant concedes that it is only rational to
examine whether the Project is consistent with the portions of the Comprehensive Plan that apply to it —
which do not include, for example, provisions directing the City to develop design guidelines or
establishing development standards for single-family residential zones. See Motion at 15 n.5.
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 11 of 19 701 Fifth Avenue, Suite 6600
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preserve natural features misses the fact that the operative phrase is "Weyerhaeuser desires."
Recital C is a factual statement, not a development regulation or any other type of legal
requirement. It states what Weyerhaeuser desires; it does not purport to prohibit any
development inconsistent with what Weyerhaeuser desires. Appellant's contentions that
enactments must be read in their entirety and that Ordinance 94-219 applies to a single defined
area, while true enough, are irrelevant. No reading of the Concomitant Agreement can transform
the phrase "Weyerhaeuser desires ..." into "All development is required to ...... For the
reasons explained in the Motion, none of which Appellant has disputed on their actual terms, the
same is true of claims 3.3, 3.6.2, 3.6.3, 3.6.4, 3.6.10, and 3.6.11.
E. No general consideration of "cumulative impacts" is required.
As explained in the Motion, no law requires the freestanding consideration of
"cumulative impacts" (as alleged in claim 3.2 and in portions of claims 3.5, 3.6, 3.7, 3.8 and their
subclaims). Appellant's claims that the land use aspects of the Process III Approval in this case
failed to engage in a general cumulative analysis are not tied to any provision of law that requires
such consideration. These claims should be considered meritless unless Appellant can provide a
legal basis for them, which Appellant failed to do in the Response.
The nature of the Process III Approval is key to this question. "Under process III, the
[City] will make the initial land use decision ... based on written comments and
information." FWRC 19.65.010. The project applicant "has the responsibility of convincing the
director that, under the provisions of this chapter, the applicant is entitled to the requested
decision." 19.65.080. An appellant before the Hearing Examiner may only raise "errors of law"
and dispute "specific factual findings and conclusions." FWRC 19.70.125. Appellant's claims
about cumulative impacts assert an error of law: according to Appellant, "[t]he City failed to
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 12 of 19 701 Fifth Avenue, Suite 6600
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consider the cumulative impacts of the other applications pending for development in the CP-1
zone." Claim 3.2. Appellant's other claims regarding cumulative impacts — even those relating
to factual determinations — do not reference provisions of law requiring cumulative analysis; they
therefore depend on Appellant establishing, under claim 3.2, that a general cumulative analysis is
required under the Code.
Case law establishes that decisionmakers exercising discretion in the land -use permitting
context may consider a project's impacts in light of other future development. In Hayes v.
Yount, 87 Wn.2d 280, 287, 552 P.2d 1038, 1043 (1976), the Shoreline Hearings Board vacated a
permit authorizing the operation of a landfill because the permit was too vague; in particular, it
did not specify the type of fill material that was allowed. The Board's analysis determined that
although "the ecological impact of the proposed fill would be `insignificant,' ... the `cumulative
effect of other such developments would cause irreversible damage to the ecosystem of the
estuary." Id. at 284. The Supreme Court held that the Board's determination was not arbitrary
and capricious because it was logical to consider "potential future harm" as one of "several
factors," particularly in light of the Shoreline Management Act's "recogni[tion of] the necessity
of controlling the cumulative adverse effect of "piece -meal development of the state's shorelines"
through "coordinated planning" of all development." Id. at 288 (quoting RCW
90.58.020). Similarly, in Sparks v. Douglas Cty., 127 Wn.2d 901, 915, 904 P.2d 738 (1995), the
Court upheld a county that relied on both "the individual and cumulative impacts of [a] series of
short subdivisions" in requiring road widening as a condition of approving a series of short
plats. Because the county engaged in sufficient "individualized analysis" and demonstrated
"rough proportionality," the conditions did not amount to an unconstitutional taking. Id.
CITY AND APPLICANT'S REPLY IN SUPPORT OF
PARTIAL DISMISSAL - Page 13 of 19
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Together, Hayes and Sparks stand for the proposition that a municipality may choose to
analyze cumulative impacts when relevant in the context of a specific aspect of the approval
process. Neither case, however, holds that all permit approvals must consider such impacts —
much less in the absence of any statutory or regulatory mandate. Requirements not based on
specific provisions of law — provisions such as the SEPA obligation for cumulative analysis
when projects meet the regulatory definition of "connected action," see Gebbers v. Okanogan
Cty. Pub. Util. Dist. No. 1, 144 Wn. App. 371, 380, 183 P.3d 324, 328 (2008) (citing WAC 197-
11-060(3)) — should not be lightly inferred from the Code. This is particularly true because the
Code expressly distinguishes between the City's "decision on the land use and design
components of the process III project permit approval" and the SEPA threshold determination
process. See FWRC 19.65. 1 00(l)(a). Indeed, FWRC 19.15.060, which provides that even when
multiple applications are required for a given project, the applications "may" — not must— "be
submitted for review at one time," further undercuts Appellant's suggestion that all applications
for projects in a given area must be considered together. In light of these provisions, there is no
basis to infer a cumulative -analysis requirement from general statements such as FWRC
19.65.100(2)(a)(iii)'s reference to "public health, safety, and welfare." See, e.g., Tugwell v.
Kittitas County, 90 Wn. App. 1, 11, 951 P.2d 272 (1998) (refusing to infer requirement of
cumulative impacts analysis for proposed rezone).
For the same reason, it is significant that the City's code expressly acknowledges
and/or requires a "cumulative impacts" analysis in numerous other contexts. See, e.g., FWRC
15.05.160(3)(g) (shoreline variances); FWRC 19.256.050(5)(1) (wireless facility siting); FWRC
19.142.150 (flood damage prevention); FWRC 19.90.120(2) (transportation
concurrency). Under the expressio unius est exclusio alterious maxim of statutory construction,
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 14 of 19 701 Fifth Avenue, Suite 6600
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the omission of this reference from the Process III Approval criteria of Chapter 19.65 FWRC
was presumptively deliberate. See, e.g., LandmarkDev., Inc. v. City of Roy, 138 Wn.2d 561,
571, 980 P.2d 1234 (1999). Clearly the Federal Way City Council understood — and variously
exercised — its authority to require consideration of cumulative impacts as part of the City's land
use regulatory framework. In its legislative discretion, however, the Council simply chose not to
include this requirement in Chapter 19.65 FWRC. The several references to cumulative impacts
in other code chapters underscore that this consideration is not required as part of a Process III
Approval.
Likewise, the relevant provisions that do look at multiple properties undercut Appellant's
assertion that an unwritten, overarching cumulative -analysis requirement should be
inferred. Appellant identifies one provision of the Concomitant Agreement — Section III.A,
which establishes maximum impervious surface coverage for "the total CP-I zoned property" —
that requires consideration of the CP-I area as a whole for the purposes of calculating a
particular metric. Appellant also points to Section XIII.B of the Concomitant Agreement, which
allows, but does not require, the Director to consider all proposed and existing uses to establish
the minimum number of parking spaces. Even if Appellant had suggested that there was an
erroneous factual determination under either of these provisions, neither they nor any other law
would require the freestanding consideration of "cumulative impacts" in a Process III
approval. [11
[11 Appellant also cites Section II.A of the Agreement, which provides that the "provisions of this
section apply to all property designated Corporate Park (CP-1) Zone." This is another non sequitur. All
development regulations apply to all property with the applicable zoning designation. This has nothing to
do with "cumulative impacts."
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 15 of 19 701 Fifth Avenue, Suite 6600
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Moreover, the Notice of Appeal fails to acknowledge that the Process III Approval
already includes analysis of other projects and the larger Property— most noticeably, in an entire
section called "Cumulative Impacts Analysis." See Process III Approval, attached as Exhibit B
to Notice of Appeal, at 20. As described in that section, pages 14 to 16 of the Process III
Approval, which deal with transportation, reflect that the Applicant submitted a joint traffic
study for Warehouses A and B; that the right-of-way modification required frontage
improvements for both properties; and that the two warehouses will share a driveway and other
access points. This analysis contributed to the City's approval of the Project under FWRC
19.65.100(2)(a)(iv) through (vi) — the approval criteria that consider street capacity, access, and
traffic safety. Id. at 22. Likewise, the Process III Approval requires the Applicant to record
easements to allow "storm water conveyance, treatment, and detention" for both warehouse
properties. Id. at 18. And other sections reflect consideration of Property -wide requirements for
wetlands, id. at 7; forest buffers, id. at 3; and even the impervious surface limitations and parking
requirements referenced in the Response. Id. at 3 (citing Sections III and XIII of the CP-I
regulations).
As shown by these portions of the Process III Approval, the City carefully accounted for
cumulative impacts both where specifically required and where the City found such
considerations relevant under the applicable criteria. This is fully consistent with Hayes and
applicable law, as a decision to engage in further cumulative consideration would likewise have
been. In light of the discretion the Code affords to the City in this respect, however, there is no
legal basis to infer a requirement for it to have done so more generally. Any of Appellant's
claims about cumulative impact analysis that are not tied to a specific legal requirement — as the
Code requires — must be dismissed.
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 16 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
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F. Additional meritless claims should be dismissed.
1. Blanket claims of noncompliance with the Code must be dismissed.
Appellant asserts in claim 3.7.4 that the Process III Approval "does not meet the
standards of current Federal Way codes as set forth in Paragraph 3.6 above." As explained in the
Motion, this claim lacks the specificity required by FWRC 19.70.125, which limits agency
decision appeals to the "errors of law raised ... in the notice of appeal." Respondents do not
dispute that consideration of an application's "consisten[cy] with all applicable provisions of this
title" is required by FWRC 19.65.100(2)(a)(ii), which is why they have not challenged (at this
stage of the proceedings) the subclaims under 3.6 that appear to be based on an applicable
provision of law and thus require factual determinations at a hearing. Instead, Respondents seek
dismissal of a claim that does not identify the legal provision that is the source of alleged
inconsistency, which does not allow Respondents to prepare adequately for the hearing, in
violation of the requirement that "[e]very party in any proceeding before the Hearing Examiner
shall have a right to ... [d]ue notice." HER 6(a).4
Additionally, claim 3.7.4 is not actually based on FWRC 19.65.100(2)(a)(ii) but instead
on FWRC 19.65.100(2)(a)(iii), which requires applications to be "consistent with the public
health, safety, and welfare." Appellant provides no legal support for its assertion that
inconsistency with an applicable law per se is a relevant consideration under FWRC
19.65.100(2)(a)(iii), and such consideration would be entirely redundant given the existence of
FWRC 19.65.100(2)(a)(ii).
4 In addition to the general authority to rule on Motions described earlier in this reply, the
Examiner may require clarification of an appeal that is "vague or ambiguous or does not sufficiently set
forth the exceptions and objections with regard to the appealed matter." HER 9(d).
CITY AND APPLICANT'S REPLY IN SUPPORT OF McCullough Hill Leary, PS
PARTIAL DISMISSAL - Page 17 of 19 701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
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2. Civil enforcement actions are not within the scope of agency decision appeals.
Appellant asserts in claim 3.7.6 that the proposal is "not consistent with the public health,
safety, and welfare" under FWRC 19.65.100(2)(a)(iii) because "[t]he 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 of the site." Respondents explained in the Motion that the
Examiner lacks jurisdiction over this claim because any conditions on the Property that allegedly
do not comply with applicable requirements are irrelevant to a Process III Approval; instead,
they are handled by the civil enforcement process established in Chapter 1.15 FWRC.
The Response points to Paragraph 14.3 of the Concomitant Agreement, which is not
referenced in claim 3.7.6 or elsewhere in the Notice of Appeal, but which provides that
"[d]rainage for future additional and new development shall be designed to comply with Federal
Way drainage requirements applicable at the time of development application." Claim 3.7.6,
however, asserts not that the application or the Process III Approval failed to apply current
standards to the design of "[d]rainage for future ... development," but that the current "physical
condition of the property" is "not consistent with current code requirements [or] the Concomitant
Agreement." Response at 20. Again, the Examiner does not have jurisdiction to determine
whether the current conditions on the Property comply with applicable legal requirements,
because that issue is handled by the code enforcement process. Moreover, Appellant fails to
explain once again why alleged noncompliance with a legal provision per se could form a basis
for finding a project "not consistent with the public health, safety, and welfare" under FWRC
19.65.100(2)(a)(iii).
CITY AND APPLICANT'S REPLY IN SUPPORT OF
PARTIAL DISMISSAL - Page 18 of 19
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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III. CONCLUSION
For these reasons, Respondents Applicant and City jointly request that the Hearing
Examiner dismiss and/or modify this appeal in part.
DATED this 20th day of May, 2019.
s/John C. McCullough, WSBA #12740
s/Courtney A. Kaylor, WSBA #27519
s/David Carpman, WSBA #54753
Attorneys for Federal Way Campus, LLC
McCULLOUGH HILL LEARY PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Tel: 206-812-3388
Fax: 206-812-3389
Email: ; a� ck(d),,mhseattle.com
Email: courtney&nihseattle.com
Email: dcgMman(a mhseattle.com
s/J. Zachary Lell, WSBA #28744
Attorneys for City of Federal Way
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, WA 98164
Tel: 206-447-7000
Fax: 206-447-0215
Email: zlell&omwlaw.com
s/Mark Orthmann, WSBA #45236
Deputy City Attorney
Attorneys for City of Federal Way
CITY OF FEDERAL WAY
33325 81h Avenue South
Federal Way, WA 98003
Tel: 253-835-2571
Fax: 253-835-2569
Email: mark. orthmanngcityoffederalway.com
CITY AND APPLICANT'S REPLY IN SUPPORT OF
PARTIAL DISMISSAL - Page 19 of 19
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
206.812.3388
206.812.3389 fax