HEX #18-003 City's Opposition to Appellant's Motion1
2 Eof'Federal
]Wa
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4 s
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BEFORE THE HEARING EXAMINER
8 FOR THE CITY OF FEDERAL WAY
9 In Re:
NO. HEX 18-003; 19-001
10 Appeal by Save Weyerhaeuser Campus of the
Process III Project Approval for Greenline CITY'S OPPOSITION TO APPELLANT'S
11 Warehouse A (File No. 16-102947-UP) MOTION FOR RECONSIDERATION
12
In Re:
13
Appeal by Save Weyerhaeuser Campus of the
14 Mitigated Determination of Nonsig ificance
(MDNS) for Greenline Warehouse A (File No.
15 16-102948-SE)
16
17
I. INTRODUCTION
18
19 Respondent City of Federal Way ("City") hereby responds to and opposes the Motion for
20 Reconsideration filed by Appellant Save Weyerhaeuser Campus ("SWC") in the above -captioned
21 matter. The Hearing Examiner's September 12, 2019 Findings of Fact, Conclusions of Law and Final
22 Decision ("Decision") in this appeal was the culmination of an extraordinarily lengthy, thorough
23
proceeding which, over a several -month period, variously involved a five-day public hearing,
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extensive pre -hearing motions practice, and voluminous post -hearing briefing by the parties. The 42-
25
26 page Decision contained numerous detailed findings and conclusions in support of the Examiner's
27 ultimate determination that the challenged MDNS and Process III Approval Decision for the Federal
28 Way Campus, LLC Warehouse "A" proposal were correctly issued.
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY'S OPPOSITION TO APPELLANT'S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 1 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
I Nothing in SWC's motion for reconsideration demonstrates any actionable error in the
2 Examiner's analysis. SWC cannot satisfy the applicable standards for reconsideration of the Decision,
3
and its motion should be denied.
4
II. ARGUMENT AND LEGAL AUTHORITY
5
2.1 Standards for Reconsideration.
6
7 The standards for reconsideration are enumerated at Rule 24(b) of the City of Federal Way
8 Hearing Examiner Rules of Procedure:
9 The grounds for seeking reconsideration shall be limited to the
10 following:
11 1. The Hearing Examiner engaged in unlawful procedure or failed
to follow a prescribed process, unless the error was harmless;
12 2. The Hearing Examiner's decision is an erroneous interpretation
of the law;
13 3. The Hearing Examiner's findings, conclusions and/or
14 conditions are not supported by the record;
4. The Hearing Examiner's decision is a clearly erroneous
15 application of the law to the facts; or
5. The Hearing Examiner exceeded the Hearing Examiner's
16 jurisdiction.
17 SWC's motion for reconsideration satisfies none of these criteria.
18 2.2 SWC's Traffic Impacts Argument Does Not Meet the Standard for
19 Reconsideration.
20 a. The estimates contained in the Greenline Business Park TIA are insufficient
to demonstrate an actionable impact.
21
22 SWC's primary reconsideration argument contends that the Decision erred in concluding that
23 the Warehouse "A" project will not create any probable adverse cumulative traffic impacts because
24 "all affected roads and intersections will operate within adopted level of service standards as
25 determined in the TIAs and concurrency reviews for all three campus proposals[.]" Motion for
26
Reconsideration at 4 (quoting Decision at 28). The basis for SWC's assertion is that the Transportation
27
Impacts Analysis (TIA) for the Greenling Business Park (GBP)—not Warehouse "A" —currently
28
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY'S OPPOSITION TO APPELLANT'S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 2 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
1 estimates a volume capacity ("v/c") ratio of 1.28 for the SR-18/Weyerhaeuser Way intersection,
2 slightly exceeding the 1.20 v/c ratio established for signalized intersections under the Federal Way
3 Public Works Department Development Standards ("Development Standards").' Motion for
4
Reconsideration at 4-5 (citing Development Standards, at §VID(1)). For several reasons, this
5
6 argument is unavailing and SWC's reliance upon the GBP TIA is misplaced.
7 First, it is undisputed the GBP proposal has not been reviewed —much less approved —by the
8 City, and that the TIA submitted for that project has not undergone City evaluation or correction.' The
9 document at this stage is preliminary, and its conclusions regarding traffic impacts cannot be
10 characterized as conclusive, determinative or otherwise final in any manner. (As just one example,
11
some or all of the various background projects referenced in the GBP TIA may ultimately never be
12
completed.) Any number of potential revisions to the TIA itself and/or to the scope, configuration
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14 and/intensity of the underlying GBP proposal during the regulatory review process for that project
15 may significantly alter the v/c ratio estimates contained in the current TIA draft.3 On its face, v/c
16 estimates contained in the current GBP TIA have insufficient evidentiary value to demonstrate a
17 significant, adverse environmental impact or otherwise show any actionable noncompliance by the
18 Warehouse "A" project.4
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1 This Response assumes arguendo, without concession, that the 1.20 v/c standard applies to the intersection at
23 issue.
24 2 Decision at 27, n.6; testimony of Rick Perez; testimony of Sarady Long; testimony of Jeff Schramm.
25 3 For example, the various technical reports associated with the Warehouse "A" proposal underwent numerous
rounds of technical review and resulted in several modifications to the applicant's original analyses. See, e.g., City's
26 Exhibit 1(e), City's Exhibit 1(r), City's Exhibit 1(v), City's Exhibit 1(bb), City's Exhibit l (ii); testimony of Rick Perez;
testimony of Jessica Redman; testimony of Cole Elliott. This iterative approach is standard, if not inherent, in the local
27 project review process, particularly for large and/or complex development proposals.
28 4 It is also pertinent that the minor v/c ratio exceedance for the SR- 18/Weyerhaeuser Way intersection represents
the only such transportation facility concern identified by the GBP TIA. See SWC Exhibit 36(g).
{JZL2020379.DOCX;1/13104.000002/ ) OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 3 Seattle, Washington 98164-2008
Tel: 206- 47-7000/Fax: 206-447-0215
1 Second, as the Decision correctly noted, the project application for the GBP was filed on
2 November 17, 2017—over 16 months after submittal of the Warehouse "A" application., It is
3
undisputed that the traffic analysis performed for the Warehouse "A" and Warehouse `B" proposals
4
themselves do not indicate a v/c ratio exceedance for the SR- 18/Weyerhaeuser Way intersection or for
5
6 any other relevant transportation facility. The background data and analysis contained in the
7 subsequent GBP TIA reflects the timing and different project horizon of that proposal in relation to
8 the previous analysis performed for the two warehouses. This is an inherent —and commonsensical-
9 product of the City's longstanding TIA methodology, under which review is confined to traffic
10 conditions extant on the date of project application. As the Examiner noted based upon staff testimony,
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the contrary approach proffered by SWC and its traffic expert would result in an "an `endless loop' of
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transportation review for every new development. ,6 SWC's exclusive focus upon the v/c ratio
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14 estimates in the GBP TIA invites precisely this outcome and should be rejected.
15 Third, contrary to SWC's core assumption, the record —inclusive of the GBP TIA—does not
16 demonstrate that the Warehouse "A", Warehouse `B" and/or GBP projects themselves will actually
17 cause an LOS failure or other exceedance of applicable standards in the first instance. Clearly the
18 Warehouse "A" project itself (or Warehouse `B") will cause no such failure.' And the GBP TIA
19
estimates that the GBP's traffic impact on the SR- I 8/Weyerhaeuser Way intersection will itself be
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minimal.' The evidence indicates that the SR- 18/Weyerhaeuser Way intersection will operate at LOS
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22 E with or without project conditions.9
23
24
5 Decision at 8.
25
6 Decision at 29 (quoting testimony of Rick Perez).
26
7 City Exhibit 16), at 22, 24; testimony of Jeff Schramm; testimony of Rick Perez.
27 8
SWC Exhibit 36(g), p. 20.
28 9
Id.
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 4 Seattle, Washington 98164-2008
Tel: 206- 47-7000/Fax: 206-447-0215
I Finally, and most fundamentally, SWC's argument forgets that the impacts of the GBP project
2 will necessarily be identified, evaluated and ultimately mitigated during the project review and SEPA
3 process for that proposal. If the minor v/c ratio exceedance for the SR-18/Weyerhaeuser Way
4
intersection identified in the preliminary GBP TIA persists at the conclusion of the City's regulatory
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6 review for that project, the City's permit approval and/or its SEPA determination unquestionably
7 may —and presumptively will —condition the proposal to eliminate the exceedance and prevent any
8 significant adverse environmental impacts. SWC's assertion that this remedy must occur now, during
9 the review process for a wholly separate development project (Warehouse "A"), is without merit.
10 b. The standards contained in WSDOT's Development Services Manual are not
11 controlling.
12 SWC next contends that the Warehouse "A" proposal violates the "state -mandated standard"
13 for the SR-18/Weyerhaeuser Way intersection. Motion for Reconsideration at 5-10. This argument
14 fails for a very basic reason: The standard SWC cites is not, in fact, "mandated" for or otherwise
15
controlling upon the City of Federal Way.
16
Preliminarily, it is undisputed that the WSDOT Development Services Manual cited by SWC
17
18 is an internal document promulgated WSDOT itself and has not been adopted by the City. To the
19 extent SWC contends the City should have incorporated the substance of WSDOT's Development
20 Services Manual into its local Comprehensive Plan or development regulations, see Motion for
21 Reconsideration at 6-7, this issue is clearly beyond the Hearing Examiner's review authority. Cf.
22 FWRC 19.70.125 (Examiner may not consider any request for modification of applicable code
23
requirements).
24
25 Nor is the City legally required to enforce the standards contained in the Manual. SWC's
26 assertion that "[t]he City is required by law to apply WSDOT's standard", Motion for Reconsideration
27 at 8, is simply incorrect. In this regard, RCW 47.06.140, the statute cited by SWC in support of its
28 position, contains no such local mandate:
{JZL2020379.DOCX;1/13114.0000021 } OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 5 Seattle, Washington 98164-2008
Tel: 206447-7000/Fax: 206- 47-0215
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(1) The legislature declares the following transportation
facilities and services to be of statewide significance: Highways of
statewide significance as designated by the legislature under chapter
47.05 RCW. . . . The department, in cooperation with regional
transportation planning organizations, counties, cities, transit agencies,
public ports, private railroad operators, and private transportation
providers, as appropriate, shall plan for improvements to transportation
facilities and services of statewide significance in the statewide
multimodal transportation plan. Improvements to facilities and services
of statewide significance identified in the statewide multimodal
transportation plan, or to highways of statewide significance designated
by the legislature under chapter 47.05 RCW, are essential state public
facilities under RCW 36.70A.200.
(2) The department of transportation, in consultation with local
governments, shall set level of service standards for state highways and
state ferry routes of statewide signif canoe. Although the department
shall consult with local governments when setting level of service
standards, the department retains authority to make final decisions
regarding level of service standards for state highways and state ferry
routes of statewide significance. In establishing level of service
standards for state highways and state ferry routes of statewide
significance, the department shall consider the necessary balance
between providing for the free interjurisdictional movement of people
and goods and the needs of local communities using these facilities.
When setting the level of service standards under this section for state
ferry routes, the department may allow for a standard that is adjustable
for seasonality.
RCW 47.06.140 (emphasis added).
By its plain terms, RCW 47.06.140 directs WSDOT itself to establish, in consultation with
local governments, LOS standards for highways of statewide significance. Nothing in the statute, or
any other provision of Chapter 47.06 RCW, remotely purports to require municipalities to adopt or
otherwise affirmatively administer and/or enforce such standards.10
Instead, the relevant state law framework implicitly vests WSDOT with the function, and the
corollary responsibility, to engage local governments during the regulatory review and permitting
process for particular developments that may impact WSDOT's transportation facilities. If WSDOT
10 Indeed, the relevant governing statute for municipalities in this context (i.e., the Growth Management Act),
expressly exempts highways of statewide significance from local concurrency requirements. See 36.70A.070(6)(a)(iii)(C).
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.0
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 6 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
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perceives a level of service threat from any such proposal, it is incumbent upon WSDOT itself to
participate in the local project review process and, if warranted, to appeal any local permitting decision
that does not adequately protect its infrastructure. The Examiner's Decision correctly acknowledged
this point:
As to sufficiency of environmental review, the City was warranted in
relying upon information provided by WSDOT. WSDOT facilities are
outside City jurisdiction and the City has not adopted any standards to
regulate use and development of WSDOT facilities within WSDOT
right of way. The City is therefore reliant upon WSDOT to exercise its
own policies and expertise in identifying impacts to it facilities and
what's needed to mitigate them. WSDOT is certainly entitled to expect
that any detailed traffic impact review be prepared by the Applicant in
a TIA and SEPA review, but if WSDOT believes there are an
deficiencies in this analysis it is incumbent upon WSDOT to make
some showing that the information is incomplete. In this case, as
determined in POF No. 10, WSDOT has not provided any such
information. Assuming arguendo that its Development Services Manual
is a proper standard for assessing SEPA significance, the only specific
impact that allegedly reached significance identified by WSDOT was
increased congestion on the SR 18 westbound off ramp in its November
9, 2018 comment letter. Mr. Swires testified that this impact was
mitigated by the storage lane condition added to the Revised MDNS.
Beyond the comment letter the City also met with WSDOT to discuss
its concerns. The City gave WSDOT full opportunity to comment, met
with WSDOT and was responsive to its only specific concerns. In this
regard the City considered information sufficient to evaluate impacts to
WSDOT facilities."
SWC attempts to minimize this reality by attributing WSDOT's failure to pursue further
mitigation requirements for the Warehouse "A" proposal as "poor agency politics". Motion for
Reconsideration at 9. The record, however, speaks for itself on this point. As the Decision noted,
WSDOT actively participated in the SEPA process for the Warehouse "A" project, procured a revision
to the City's original MDNS that addressed the department's primary concerns, and did not timely
appeal the final MDNS.12 It speaks volumes that WSDOT itself did not identify or otherwise seek to
11 Decision at 26 (emphasis added).
12 Decision at 9-10, 25-26.
{JZL2020379.DOCX;1/13104.000002/ )
CITY'S OPPOSITION TO APPELLANT'S MOTION FOR
RECONSIDERATION - 7
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
1 address the concern now belatedly raised by SWC. Irrespective, SWC cannot manufacture a legal
2 mandate for the City where one does not exist under state law. SWC's argument should be rejected.
3
c. The City cannot require an applicant to mitigate impacts caused by separate
4 developments.
5 The core underpinning of SWC's reconsideration request is its suggestion that the City should
6 compel FWC to prospectively mitigate, as a condition of project approval for Warehouse "A", the
7
potential future impacts of the Warehouse "B" and GBP developments. See Motion for
8
Reconsideration at 11. SWC's theory essentially invites the Hearing Examiner to disregard one of the
9
10 most basic tenets of land use law and should be rejected out of hand.
11 It is beyond any credible argument that a project applicant may only be required to mitigate
12 the anticipated impacts of that project, and only to the extent "roughly proportionate" to such impacts:
13 Simply put, the nexus rule permits only those conditions necessary to
14 mitigate a specific adverse impact of a proposal. The rough
proportionality requirement limits the extent of the mitigation measures,
15 including denial, to those which are roughly proportional to the impact
they are designed to mitigate.
16
HEAL v. CPSGMHB, 96 Wn. App. 522, 533-34, 979 P.2d 864 (1999) (citation omitted).
17
18 This benchmark principle —the "nexus and proportionality" rule— is rooted in constitutional
19 takings jurisprudence. See, e.g., Nollan v. California Coastal Cmm'n, 483 U.S. 825(1987); Dolan v.
20 City of Tigard, 512 U.S. 374 (1994). These parameters have also been codified at both RCW
21 82.02.020 (prohibiting taxes, fees or charges on developments except for dedications, etc. that are
22 "reasonably necessary as a direct result of the proposed development") (emphasis added); Isla Verde
23
Int'l Holdings v. City of Camas, 146 Wn.2d 740, 758, 49 P.3d 867 (2002); HEAL, 96 Wn. App. at 534,
24
25 and in the State Environmental Policy Act. See Washington Real Property Desk Book, Chapter 7,
26 §7.3(4) ("SEPA authorizes local governments to condition or deny development approvals to mitigate
27 specific adverse environmental impacts of a development") (citing RCW 43.21 C.060) (emphasis
28 added) (internal punctuation omitted); cf. WAC 197-11-660(1)(d) ("mitigation measures may be
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY'S OPPOSITION TO APPELLANT'S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 8 Seattle, Washington 98164-2008
Tel: 206- 47-7000/Fax: 206-447-0215
I imposed upon an applicant only to the extent attributable to the identified adverse impacts of its
2 proposal") (emphasis added).
3
The Hearing Examiner's September 12, 2019 Decision correctly acknowledged these
4
limitations.13 SWC, however, now asks the Examiner to ignore them by compelling the applicant, as
5
6 a condition of approval for Warehouse "A", to prospectively mitigate the future impacts of two other,
7 separate projects —Warehouse `B" and the GBP the regulatory and permitting review for which has
8 not even been completed. See Motion for Reconsideration 11-13. No legal authority remotely
9 supports this argument, which on its face violates the well -established constitutional and statutory
10 constraints above.
11
To the extent SWC's reconsideration request implicitly assumes that the Warehouse "A",
12
Warehouse `B" and GBP projects should be characterized and evaluated as a single, holistic
13
14 development rather than separate proposals, see Motion at 3-17, the Examiner has already flatly
15 rejected this argument.14 SWC's motion identifies no record evidence and cites no legal authority
16 sufficient to revisit that determination. SWC's argument should be denied.
17 d. The condition of approval imposed by the Hearing Examiner will adequately
18 mitigate traffic impacts.
19 The Hearing Examiner added a condition to the Warehouse "A" MDNS requiring the applicant
20 to acquire a Concurrency Review Certificate for the GBP prior to any construction of Warehouse "A".
21 As part of that review process, the City must identify any proportionate share mitigation necessary
22 from the Warehouse "A" project to meet PM LOS service requirements. SWC is then required to "pay
23
any such funds or install any such mitigation prior to occupancy" of Warehouse "A", subject to
24
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26 13 Decision at 24, 42.
27 14 Decision at 8-9 (noting that the only interdependency between the three projects—i.e., the shared driveway and
drainage facility for the Warehouse "A" and `B" proposals —was adequately identified and cumulative evaluated in the
28 MDNS and Process III Decision).
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 9 Seattle, Washington 98164-2008
Tel: 206447-7000/Fax: 206447-0215
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applicable nexus and proportionality standards. 15 Contrary to SWC's various assertions, see Motion
for Reconsideration at 10-16, this condition, together with the standard regulatory review process for
the GBP, is sufficient to ensure mitigation of all relevant impacts of the Warehouse "A" project.
In this regard, SWC's reliance upon City of Federal Way v. Town & Country Real Estate LLC,
see Motion for Reconsideration 10-11, is misplaced. Town & Country affirmed that a local
jurisdiction may, consistent with RCW 82.02.020, impose a pro rata mitigation condition upon a
proposed development in order to ensure that the project will ultimately mitigate its proportional share
of direct impacts. Town and Country, 161 Wn. App. 17, 44-48, 252 P.3d 382 (2011). This type of
proportionate mitigation requirement is precisely what the Examiner effected in the instant
appeal. 16 Contrary to SWC's assertion, however, the Town & Country Court's holding in this regard
was limited to the direct impacts of the subject proposal itself. The Court of Appeals did not suggest,
much less hold, that a project applicant could be compelled to mitigate the impacts of other, separate
development proposals. Id.
Town and Country is also distinguishable on its facts from the present case and does not support
SWC's argument. For SEPA purposes, the test of "significance" is a context -dependent standard
under which "[t]he severity of an impact should be weighed along with the likelihood of its
occurrence." WAC 197-11-794(2). In Town & Country, the jurisdiction seeking to protect and ensure
appropriate mitigation for its transportation facilities (the City of Federal Way) specifically and
affirmatively requested the mitigation measures that were ultimately imposed by the permitting
jurisdiction (the City of Tacoma), underscoring the gravity and significance of the anticipated impacts
that would result from the underlying development project. Town & Country, 161 Wn. App. at 24-
28. In stark contrast, WSDOT has made no similar showing with respect to the LOS impacts to the
15 Decision at 42.
16 See Decision at 41-42.
{JZL2020379.DOCX;1/13104.000002/ }
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR
RECONSIDERATION - 10
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206- 47-7000/Fax: 206-447-0215
I SR-18/Weyerhaeuser Way intersection alleged by SWC. (Indeed, as the Hearing Examiner's
2 September 12, 2019 Decision acknowledged, Warehouse "A" itself will not create any significant
3
adverse impacts and therefore requires no additional mitigation.)17 The fact that WSDOT—the agency
4
responsible for this facility --did not itself request any such mitigation or file a timely appeal of the
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6 Warehouse "A" MDNS further demonstrates that the proposal's traffic impacts to this facility were
7 not truly "significant" in the first instance.
8 SWC next contends that the City's concurrency and TIA review processes will not adequately
9 address the future impacts of development on the former Weyerhaeuser property. Motion for
10 Reconsideration at 11-13. The fallacy of SWC's argument is its bald assertion that the City cannot
11
utilize SEPA to mitigate impacts that, in a theoretical, worst -case scenario, would be left unaddressed
12
by the City's concurrency and TIA regulations, respectively. Motion for Reconsideration at 13. This
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14 contention is simply incorrect, as it critically misunderstands the essential nature of SEPA review as
15 an overlay to the City's other regulatory tools. A fundamental purpose of SEPA is precisely to identify
16 and mitigate impacts that are not sufficiently addressed through application of an agency's standard
17 regulations:
18 [A] primary role of environmental review under chapter 43.21 C RCW
19 is to focus on the gaps and overlaps that may exist in applicable laws
and requirements related to a proposed action.
20
21 Bellevue Farm Owners Assn v. Shorelines Hrg's Bd., 100 Wn. App. 341, 353, 997 P.2d 380, 387
22 (2000); see also RCW 43.21C.240; WAC 197-11-158.
23 Even assuming arguendo that the combined application of the City's concurrency and TIA
24 processes would in fact leave one or more potential impacts unmitigated, SEPA review would
25 presumptively operate to address those concerns. Any suggestion that the City would fail to apply and
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enforce its SEPA authority in this manner, as required by law, is inherently speculative and does not
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28 17 Decision at 41.
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 11 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
I warrant reconsideration of the Examiner's September 12, 2019 Decision. See, e.g., Pleas v. City of
2 Seattle, 112 Wn.2d 794, 815, 774 P.2d 1158 (1989) (public officials are entitled to a presumption that
3
they will "regularly and faithfully" perform their duties).
4
SWC's argument also assumes, erroneously, that a fee will be the City's only available
5
6 mitigation tool to address the impacts of Warehouse "A" under the Examiner's added condition.
7 Motion for Reconsideration at 13-15. This suggestion ignores the plain language of the Decision,
8 which by its terms requires the City to "identify M proportionate share mitigation necessary for the
9 Warehouse A project", and expressly mandates that "the Applicant shall pay any such funds or install
10 any such mitigation prior to occupancy of Warehouse A." 18 Nothing in the Decision purports to limit
11
the mitigation to a fee. The same language in the Decision belies SWC's suggestion that the City will
12
ultimately be unable to collect such fees due to the vesting and entitlement provisions of the
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14 Weyerhaeuser property CZA. Motion for Reconsideration at 15. Unless the Decision is ultimately
15 appealed (successfully) by the applicant, the condition will be as binding as a matter of law.
16 2.3 SWC's Hybelos Plan Argument Does Not Meet the Standard for Reconsideration.
17 SWC's request that the Hearing Examiner reconsider the Hylebos Plan compliance condition
18 added by the Decision is equally without merit, and its contention that the condition is "insufficient"
19
should be rejected out of hand. Motion for Reconsideration at 17-19. By its terms, the condition
20
21 added by the Examiner categorially requires compliance with the Plan:
22 The Applicant shall supplement its stormwater plan to demonstrate
compliance and consistency with the Executive Proposed Basin Plan
23 Hylebos Creek and Lower Puget Sound (King County Surface Water
Management, 1991).19
24
The mandate and effect of this condition is clear. By its unambiguous terms, the applicant is
25
26 required to demonstrate "compliance and consistency" with the Hylebos Plan. The condition does not
27
28 18 Decision at 42 (emphasis added).
19 Decision at 42.
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 12 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
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specify a particular means or method of compliance, and does not acknowledge any caveats or
qualifiers that would enable the applicant to avoid such compliance. Id. There is no basis, and
certainly none identified by SWC, to suggest that the applicant will not dutifully fulfill the mandate of
this condition, much less that the City will fail to enforce it. Again, longstanding Washington
precedent establishes precisely the opposite presumption. See, e.g., Pleas, 112 Wn.2d at 815. SWC's
reconsideration request on this ground should be denied.
Separately, SWC's assertions concerning the Hylebos Plan attempt to recycle its tired theory
regarding the alleged cumulative drainage impacts of the Warehouse "A", Warehouse `B" and GBP
proposals. Motion for Reconsideration at 17-19. The Hearing Examiner has specifically addressed,
and rejected, this argument.20 SWC offers no additional legal authority or factual support that would
justify reconsideration of the Examiner's original analysis.
Moreover, SWC's motion erroneously characterizes various recommendations contained in
the Hylebos Plan as "specific requirements". Motion for Reconsideration at 18-19. This is a
misrepresentation to the Examiner. The provisions of the Hylebos Plan cited by SWC (i.e., BW-11,
BW-12, BW-13, BW-4, BW-5, BW-7(2) and BW-8(4)) are expressly framed as "Basinwide
Recommendations" rather than enforceable, regulatory mandates.21 SWC also mischaracterizes
Stream EA as a Class 3 Stream, see Motion for Reconsideration at 18, while the Hybelos Plan itself
identifies this feature as "unclassified".22 SWC's resort to factual misstatements should be construed
as an effective concession that its arguments concerning the Hybelos Plan are meritless.
20 Decision at 4, 15-16.
21 Executive Proposed Basin Plan Hylebos Creek and Lower Puget Sound (King County Surface Water
Management, 1991), at 2-9 (summarizing "Basinwide Recommendations" in the Plan); 3-9 — 3-10 (describing
"recommendations" for stream and wetland protection); 3-13 — 3-14 (describing "recommendations" for clearing, grading
and filling limitations); 3-15 (wetland and stream no net loss policy).
22 Executive Proposed Basin Plan Hylebos Creek and Lower Puget Sound (King County Surface Water
Management, 1991), at Figure 4.2.1.
{JZL2020379.DOCX;1/13104.000002/ } OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 13 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
I Finally, SWC disregards that many of the cited Basinwide Recommendations set forth in the
2 Hylebos Plan address subjects—e.g., stream and wetland buffers, clearing, grading and fill limits-
3
that are governed by the CZA itself.23 This is a further reason why the reconsideration on the basis of
4
the Hybelos Plan condition is unwarranted.
5
6 2.4 There Is No Basis To Remand for Continuing Review.
7 For the reasons explained above, SWC has failed to demonstrate that the Hearing Examiner's
8 September 12, 2019 Decision should be reconsidered in any manner. Separately, SWC's request that
9 the Examiner remand the MDNS and/or the Process III Approval decision for the Warehouse "A"
10 project "for continuing review", see Motion for Reconsideration, is legally unsupported and should be
11
denied.
12
The City's procedural regulations do not contemplate, much less authorize, the type of
13
14 "continuing review" remand proposed by SWC. In defining the Hearing Examiner's disposition
15 authority for administrative appeals, the City's code is clear: "In an agency decision appeal, the
16 examiner shall affirm, reverse, or modify the decision being appealed based on the hearing examiner's
17 findings and conclusions." FWRC 19.70.150. No provision is made for "continuing review" as an
18 decisional option in this context. Likewise, no FWRC provision supports SWC's request for
19
additional review, comment and appeal by the public, other jurisdictions and tribes. Id. Motion for
20
21 Reconsideration at 20. To the extent SWC is seeking an additional hearing as part of its requested
22 relief, state law categorically forecloses this option. See, e.g., RCW 36.70B.050(2)(local project
23 review procedures must "provide for no more than one open record hearing and one closed record
24 appeal"); WAC 197-11-680(3)(a)(iv) ("An agency shall provide for only one administrative appeal of
25 a threshold determination.... ; successive administrative appeals on these issues within the same
26
agency are not allowed). SWC's request for continuing review should be rejected.
27
28 23 See, e.g., City's Exhibit 2(c), at C-12 -C-17.
{JZL2020379.DOCX;1/13104.000002/ ) OGDEN MURPHY WALLACE, P.L.L.C.
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR 901 Fifth Avenue, Suite 3500
RECONSIDERATION - 14 Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
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III. CONCLUSION
SWC has not demonstrated satisfaction of any of the standards for reconsideration of the
I Hearing Examiner's September 12, 2019 Decision. The Hearing Examiner should accordingly deny
I SWC's motion.
DATED this 10'h day of October 2019
OGDEN MURPHY WALLACE, P.L.L.C.
By: /S/J. Zachary Lell
J. Zachary Lell, WSBA #28744
Attorneys for City of Federal Way
{JZL2020379.DOCX;1/13104.000002/ }
CITY' S OPPOSITION TO APPELLANT' S MOTION FOR
RECONSIDERATION - 15
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215
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DECLARATION OF SERVICE
I, Karla Struck, certify that on the date below I provided this City's Opposition to Appellant's
Motion for Reconsideration to the Federal Way Hearing Examiner, Phil A. Olbrechts as well as
counsel listed below via email and regular mail:
Federal Way Hearing Examiner:
Phil Olbrechts
c/o Dept of Community Development
CITY OF FEDERAL WAY
33325 8th Avenue South
Federal Way WA 98003
Mark Orthmann, City Attorney
CITY OF FEDERAL WAY
33325 - 8th Avenue South
Federal Way WA 98003
olbrechtslaw@grnail.com
mark.orthmann@cityoffederalway.com
Attorney for SWC Sane Weyerhaeuser Campus)
J. Richard Aramburu rick@aramburu-eustis.com
ARAMBURU & EUSTIS, LLP
720 Third Avenue Suite 2000
Seattle WA 98104
Attorney for Applicant_
Courtney Kaylor
John C. McCullough
David Carpman,
Lauren Verbanik
McCULLOUGH HILL LEARY, PS
701 5th Avenue Suite 6600
Seattle WA 98104
courtney@mhseattle.com
jack@mhseattle.com
darpman@mhseattle.com
Iverbanik@mhseattle.com
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
is true and correct.
Executed at Seattle, Washington this 10t' day of October 2019.
{JZL2020379.DOCX;1/13104.000002/ }
CITY'S OPPOSITION TO APPELLANT'S MOTION FOR
RECONSIDERATION - 16
/S/ Karla Struck
Karla Struck, Legal Assistant
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206-447-7000/Fax: 206-447-0215