HEX #18-003 Greenline MDNS AppealARAMBURU & Eusus, LLP
.ttornevs at Law
J. Richard Aramburu
rick@aamburu-eustis.com
Jeffrey M. Eustis
eustis@aramburu,eustis.com
City of Federal Way
City Clerk's Office
33325 8th Ave S
Federal Way, WA 98003
720 Third Avenue, Suite 2000
Seattle, WA 98104
Tel 206.625.9515
Fax 206.682.1376
www.aramburu-eustis.com
November 30, 2018
MV 3 0 2018
Of
Re: Appeal of Mitigated Determination of Nonsignificance
for Greenline Warehouse "A" (File Number 16-102948-S.E.), and associated and
related projects Greenline Business Park Application (file 17-105491) and
Greenline Warehouse "B" (File Number 17-104236-UP)
Dear City of Federal Way:
This office represents Save Weyerhaeuser Campus (SWC) a Washington non profit
corporation. This letter constitutes the appeal of the Department of Community
Development's Mitigated Determination of Nonsignificance for Greenline Warehouse
"A" (File Number 16-102948-S.E.) The content of this appeal is as follows.
1. DECISION APPEALED.
SWC appeals the Mitigated Determination of Nonsignificance for Greenline Warehouse
"A" (File Number 16-102948-SE) issued by the City on October 26, 2018.
2. INTEREST OF SWC.
This appeal is filed by SWC on behalf of its members. SWC is a Washington non-profit
corporation concerned with the future use and development of the former
Weyerhaeuser Corporate Campus (WCC). SWC members own property and reside in
neighborhoods nearby the WCC and are adversely impacted by development on the
property, including aesthetic, visual, traffic, stormwater and other impacts that arise
from the development on the property. SWC has filed numerous comments on
proposals to develop the WCC beginning in 2016 and provided comments on Greenline
Warehouse "A" (File Number 16-102948-SE). Additional comments were submitted on
November 30, 2018
Page 2
the Greenline Business Park application in May, 2018 and on the MDNS on November
9, 2018, all of which are incorporated by reference herein. Additional SEPA comments
were also submitted for Warehouse B on October 30, 2017.
SWC is represented in this appeal by J. Richard Aramburu, telephone (206) 625-9515,
email rick@aramburu-eustis.com. Please note, Mr. Aramburu will be unavailable from
December 4 to December 20, 2018, and from March 4 to March 8, 2019, and requests
that nothing be scheduled during those times as well as immediately before or after
those dates.
3. PROPOSED PROJECT.
The MDNS is for the Greenline Warehouse "A" (File Number 16-102948-SE). The
project is a 225,950 square foot general commodity warehouse with 287 parking stalls
on a 15.46 acre parcel. The applicant for this project is also the applicant for two
adjacent proposals Greenline Business Park (file 17-1054910) and Greenline
Warehouse "B" (File Number 17-104236-UP).
4. OBJECTIONS TO AND ERRORS IN THE MDNS DECISION.
4.1 ERRORS IN DEFINING SCOPE OF ENVIRONMENTAL REVIEW.
The SEPA Responsible Official erred in issuing the MDNS because it did not
include the cumulative impacts of other projects being proposed and currently under
review. Comments relating to the scope of the environmental review were previously
communicated to the City by letters dated November 15, 2018, November 9, 2018, and
May 29, 2018. These letters are attached and incorporated by reference. In addition,
agencies, tribes, individuals and organizations commented on the scope of review
during the comment period. All of these comment letters are incorporated by reference
as though fully set forth herein.
The cumulative impacts of these three projects are required to be considered
together under SEPA and it was an error for the Federal Way SEPA Responsible
Official to limit review to the single Warehouse "A" project.
4.2. THE CUMULATIVE IMPACTS OF THE PENDING PROPOSALS WILL
HAVE A PROBABLE SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT
AND REQUIRE THE PREPARATION OF AN ENVIRONMENTAL IMPACT
STATEMENT.
The three pending proposals will have significant impacts, cumulatively and
individually, on the following elements of the environment under WAC 197-11-444:
(1) Natural environment
(a) Earth
November 30, 2018
Page 3
(iv) Unique physical features
(v) Erosion/enlargement of land area (accretion)
(b) Air
(i) Air quality
(ii) Odor
(c) Water
(i) Surface water movement/quantity/quality
(ii) Runoff/absorption
(iii) Floods
(iv) Groundwater movement/quantity/quality
(d) Plants and animals
(i) Habitat for and numbers or diversity of species of plants, fish,
or other wildlife
(ii) Unique species
(iii) Fish or wildlife migration routes
(e) Energy and natural resources
(i) Amount required/rate of use/efficiency
(v) Scenic resources
(2) Built environment
(a) Environmental health
(i) Noise
(b) Land and shoreline use
(i) Relationship to existing land use plans and to estimated population
(iii) Light and glare
(iv) Aesthetics
(v) Recreation
(vi) Historic and cultural preservation
(c) Transportation
(i) Transportation systems
(ii) Vehicular traffic
(iv) Parking
(v) Movement/circulation of people or goods
(vi) Traffic hazards
(d) Public services and utilities
(iv) Parks or other recreational facilities
(v) Maintenance
(vii) Water/stormwater
Under the terms of WAC 197-11-330(3)(e) the proposal is likely to:
(i) Adversely affect environmentally sensitive or special areas, such as loss or
destruction of historic, scientific, and cultural resources, parks, prime farmlands,
wetlands, wild and scenic rivers, or wilderness;
(ii) Adversely affect endangered or threatened species or their habitat;
November 30, 2018
Page 4
(iii) Conflict with local, state, or federal laws or requirements for the protection of
the environment; and
(iv) Establish a precedent for future actions with significant effects, involves
unique and unknown risks to the environment, or may affect public health or
safety.
Under WAC 197-11-330(3)(b) and (c), the quantitative impacts of the three
pending proposals are significant, and several impacts - even if determined to be
marginal separately - will result in a significant impact.
4.3 IMPACTS OF WAREHOUSE "A" ALONE WILL HAVE SIGNIFICANT
ENVIRONMENTAL IMPACT.
Even if the Hearing Examiner determines that environmental review may be
limited to the Warehouse "A" proposal, that proposal alone will have significant impacts
to the elements of the environment identified above in Section 4.2 of this appeal
statement.
SWC requests that the Hearing Examiner reverse the MDNS decision and order the
issuance of a determination of significance and an environmental impact statement
considering the impacts of the three projects identified in Section 3 hereof. In the
alternative, the Hearing Examiner is requested to reverse the MDNS decision and order
the issuance of a determination of significance and an environmental impact statement
considering the impacts of the Warehouse "A" proposal.
SWC reserves the right to amend this appeal and to request additional relief as may be
appropriate.
Sincerely,
A uR & Eu Tis, P
4-1-
J. Richard Aramburu
WSBA # 466
Attorney for Save Weyhaeuser Campus
Attachment A
Attachment A
ARAmBBURU & EUSUS, LLP
Attorneys at Law
J. Richard Aramburu
rick@aramburu-eustis.com
Jeffrey M. Eustis
eustis@aramburu,eustis.com
May 29, 2018
City of Federal Way
33326 8th Ave. S.
Federal Way, WA 98003
Attn: Brian Davis, Director
Department of Community Development
And Jim Harris
Planner
720 Third Avenue, Suite 2000
Seattle, WA 98104
Tel 206.625.9515
Fax 206.682.1376
www.aramburu-eustis.com
Via Email:
Brian.Davis@cityoffederalway.com
Jim.Harris@cityoffederalway.com
Re: Greenline Business Park Application (File #17-105491);
Proposals for Warehouse A (#16-102947-00-UP, 16-102948-00-SE) and
Warehouse B (#17-104236-UP, 17-104237-SE).
Dear City of Federal Way:
This office represents Save Weyerhaeuser Campus, a Washington nonprofit
corporation organized and existing to protect and :preserve the community and :natural
values of the Weyerhaeuser Campus.
On May 14, 2018, the City of Federal Way determined that the application for the
Greenline Business Park (GBP) was complete. That proposal, made by Industrial
Realty Group of Los Angeles (IRG), includes the construction of three buildings totaling
approximately 1,068,000 square feet on a parcel of 146 acres and revisions to an
existing parking lot adding 806 parking stalls, which will involve, among other activities,
filling wetland and improving existing roads in the vicinity. On May 18, 2018, the City
issued a Notice of Master Land Use Application, initiating a fourteen day comment
period. The Notice indicates that the proposal will be reviewed under the
'Weyerhaeuser Company Pre -Annexation Concomitant and Zoning Agreement" (CA),
which places the property in the CPA zone created by the CA.
Previously, IRG submitted complete applications for two other construction projects also
located in the CP-1, Warehouses A and B. Warehouse A is a 225,950 square foot
warehouse building on 13.7 acres with 245 parking stalls; Warehouse B is a 217,300
June 4, 2018
Page 2
square foot warehouse building with 244 parking spaces immediately adjacent to
Warehouse A. The Warehouse A/B proposals will use a common access road and the
same stormwater detention pond. These two projects are owned by the same applicant
as for the Greenline Business Park. The City has not issued a threshold determination
under SEPA for either of IRG's Warehouse proposals.
In this letter, SWC provides comment on the rules, regulations and standards applicable
to the pending permit applications. First, any review of the business park proposal under
both current zoning and the State Environmental Policy Act (SEPA) must consider the
consolidated and cumulative impacts of all three pending proposals and cannot proceed
with separate, individual, fragmented review. Second, the existing rules and
regulations, including the CA, cannot be read to vest applications to rules and standards
adopted twenty-four years ago. In several specific areas, the City should apply current
standards and regulations adopted after Ordinance 94-219 (including the CA and its
zoning) was adopted in 1994. These issues will be addressed below.
1. THE CITY MUST CONDUCT COMBINED AND CONSOLIDATED REVIEW OF THE
THREE PENDING PROPOSALS.
1.1. SEPA REVIEW. Because of the background of this proposal, the City is
required to conduct consolidated land use and environmental review of the pending
applications, not segmenting or bifurcating review. This is based on the following.
A. ONE OWNER. The entire 426-acre Weyerhaeuser Campus was purchased
in 2016 by IRG, a California developer of warehouses and business parks.
B. THREE CURRENTLY PENDING APPLICATIONS. IRG has filed applications
for use of significant portions of the Weyerhaeuser Campus, including the GBPark,
Warehouse A and Warehouse B, which have all been deemed complete by the City.
These three applications will be referenced herein as the "IRG Applications." Each of
the applications is currently pending and no threshold determination has been issued for
any of them. Comments on the GBP are due on June 4, 2018.
C. SAME ZONE FOR ALL PARCELS. The IRG Applications are all in the CP-1
zone. That zone is only applicable to the Weyerhaeuser Campus parcels and not to
any other properties in the city.
D. UNDER SEPA, THE THREE PENDING APPLICATIONS MUST BE
CONSIDERED IN A SINGLE ENVIRONMENTAL DOCUMENT.
The City of Federal Way has adopted by reference most of the Washington State
SEPA Rules, WAC Chapter 197-11, into Federal Way's code in FWC 14.05.020.
June 4, 2018
Page 3
Included in this adoption is WAC 197-11-060, including Subsection (b). This section
provides as follows:
(b) Proposals or parts of proposals that are related to each other closely enough
to be, in effect, a single course of action shall be evaluated in the same
environmental document. (Phased review is allowed under subsection (5).)
Proposals or parts of proposals are closely related, and they shall be discussed
in the same environmental document, if they:
(i) Cannot or will not proceed unless the other proposals (or parts of
proposals) are implemented simultaneously with them; or
(ii) Are interdependent parts of a larger proposal and depend on the larger
proposal as their justification or for their implementation.
In addition, WAC 197-11-060(c) provides as follows:
(c) (Optional) Agencies may wish to analyze "similar actions" in a single
environmental document.
(i) Proposals are similar if, when viewed with other reasonably foreseeable
actions, they have common aspects that provide a basis for evaluating their
environmental consequences together, such as common timing, types of
impacts, alternatives, or geography. This section does not require agencies or
applicants to analyze similar actions in a single environmental document or
require applicants to prepare environmental documents on proposals other than
their own.
(ii) When preparing environmental documents on similar actions, agencies
may find it useful to define the proposals in one of the following ways: (A)
Geographically, which may include actions occurring in the same general
location, such as a body of water, region, or metropolitan area; or (B) generically,
which may include actions which have relevant similarities, such as common
timing, impacts, alternatives, methods of implementation, environmental media,
or subject matter.
These provisions were considered in Indian Trail Property Owner's Assn v. City of
Spokane, 76 Wn.App. 430, 886 P.2d 209 (1994). There a shopping center
redevelopment and expansion were under review, including a large grocery store and
other features. However, two parts of the overall proposal were not included in the
original environmental checklist and threshold determination, a car wash and large
underground storage tanks, and were proposed for later environmental review. On a
challenge to this segmented environmental review, the Court of Appeals said as follows:
Cumulative Effects. We note at the onset that the responsible official's initial
evaluation of the underground fuel storage tanks separate from other phases of
the proposal was in error. Parts of proposals which are "related to each other
June 4, 2018
Page 4
closely enough to be, in effect, a single course of action shall be evaluated in the
same environmental document." WAC 197-11-060(3)(b). Here, a phased review
of the project was clearly inappropriate because it would serve only to avoid
discussion of cumulative impacts. WAC 197-11-060(5)(d)(ii). See also WAC 197-
11-060(3)(b). However, the error was cured when the original MDNS and DNS
were withdrawn, and the cumulative effects of the entire project considered
before a new MDNS was issued.
Redevelopment of the shopping district also included plans for a car wash. In 131
zones, a car wash requires a special permit. When addressing neighborhood
concerns about the noise impacts from the car wash, the hearing examiner
responded "there is no car wash in this application and a special permit must be
applied for before a car wash can be built in conjunction with this use". To the
extent the hearing examiner was approving separate SEPA review for the car
wash, he was in error. WAC 197-11-060(3)(b). However, the error was harmless
because the responsible official considered the impact of the car wash when
making the threshold determination and required mitigation measures for it.
76 Wn.App. at 443.
As noted above, the IRG Applications have a common owner (IRG), common
timing (all have complete pending applications), common geography (all on the
Weyerhaeuser Campus), common impacts and common zoning (CP-1, applicable only
to this property). The most significant impacts of the combined proposals affect traffic
and transportation, with significant impacts to off -site city roads and state highways
including 1-5 and SR 18. Complete and accurate traffic and transportation analysis
should include not only the three current proposals, but an accurate analysis for the
future use of the Weyerhaeuser Headquarters building (more than 300,000 square feet),
which is currently offered for lease by IRG to a single tenant. Currently, the traffic report
for Warehouse A, for example, does not include potential traffic from Warehouse B, the
GBP, or the Weyerhaeuser headquarters building. The projects, individually and
cumulatively, will also impact downstream water resources, including the Hylebos
stream, Milton's East Hylebos Ravine, Fife's Lower Hylebos Nature Park and associated
wetlands and habitat. The GBP proposal alone will total 1,441,000 square feet of
impervious surface.
Under the applicable regulations and caselaw, it would be error for the City to
conduct separate environmental review for IRG's proposals. The City should require
IRG to submit an environmental checklist that includes the cumulative impact of all three
projects. There appears to be little question that a proposal with more than 2,000,000
square feet of structure and other impervious surfaces will have a significant impact on
the environment and accordingly requires an environmental impact statement (EIS).
June 4, 2018
Page 5
1.2. LAND USE REVIEW. In addition, the three development proposals are
included within the "Corporate Park 1" or "CP-1" zone, which was adopted by the City in
Ordinance 94-219 as a part of the annexation of this and other nearby property in 1994.
The CP-1 zone only applies to the former Weyerhaeuser Campus. Ordinance 94-219
also reached certain "Conclusions of Law," beginning at page 4; these Conclusions
applied to the entire annexation area, including the property where the three pending
proposals are located. Conclusion B states that the property, as a whole, has "unusual
environmental features" and that the ordinance is the "means to preserve and protect
these natural features," again referencing the entire annexation area. Conclusion C
states that "any development in the corporate headquarters area is low density
characterized by large expanses of open space." The applicant contends that the 1994
CA controls development on the Weyerhaeuser Campus. While that is not entirely
correct, as pointed out below, it is apparent that the CA requires that the entire site be
considered when development proposals are made. For example, under Paragraph
14.2 of the CA, existing streets had "been constructed to meet capacity needs for on -
site development up to an additional 300,000 square feet of Corporate Office Park
development;" this provision regarding street capacity is applicable to the entire site.
The CP-1 zone found at Exhibit C to the CA also stresses that the entire site is to
be considered together in review and analysis. The CP-1 zone states its Purpose and
Objectives, saying that the properties in the zone:
...are characterized by large contiguous sites with landscape, open space
amenities, and buildings of superior quality. The property appropriate for such
uses is unique, and demands for such uses are rare. Consequently special land
use and site regulations are appropriate for such properties.
CP-1 Zone, page C-1. Subsection A states "This property is subject to its own unique
standards of review processes as set forth in the Agreement." Id. The same is true of
provisions for "Off -Street Parking" found in Exhibit C, in Section XIII at page C-18, that
although new development shall require compliance with applicable off-street parking
requirements:
the aggregate of all proposed and existing uses on the property may, subject to
the approval of the Director, be considered as a whole in establishing the
minimum number of vehicles spaces required, .. .
It is wholly inconsistent with the CP-1 zoning, and the background of the CA and
Ordinance 94-219, to separately consider individual projects when the City recognizes
that the proposals are located on a unique property. This is especially true when IRG,
the property owner, has three complete and pending applications to use substantially all
of the CP-1 zoned area. Based on the foregoing, it is apparent that since 1994 the City
has considered the Weyerhaeuser Campus unique and has adopted unique standards
June 4, 2018
Page 6
of review applicable to the entire site. Site development, by a common property owner,
must be considered as a consolidated whole for permitting purposes.
2. THE CITY IS REQUIRED TO APPLY CURRENT CODES AND STANDARDS, NOT
THOSE IN EFFECT IN 1994.
As noted above, Ordinance 94-219 is now twenty-four years old, but the
applicant for the three pending projects claims that the ordinance, and the CA, vest
these new proposals to rules, regulations and standards in effect when the ordinance
was adopted. The City should reject that proposition and apply current adopted
standards.'
The applicant seeks to apply certain provisions of the CA to its current land use
applications. Among others, the applicant asks the City to follow certain criteria in
review of its proposals, including the following provisions of the development agreement
that are contrary to codes.
1) The agreement "not to require any dedication or conveyance of the Property or
any portions thereof for public purposes ....
Paragraph 12, page 10.
2) Agreement to consider roads adequate for the addition of 300,000 square feet
of new Corporate Office Park development that might be located anywhere on
the site.
Paragraph 14.2, page 11.
3) Agreement that the property owners "shall be vested for purposes of roadway
capacity requirements and any concurrency requirements and Weyerhaeuser
shall not be required for pay for any new public streets within the Property area
or traffic mitigation fees for these streets in connection with the Additional
Development.
Paragraph 14.2, page 11, Paragraph 15, page 13.
4) Agreement that areas of the Property which are "classified as environmentally
sensitive" shall comply with the critical areas ordinance in effect in 1994, except
for special provisions found at pages C-12 to C-18.
Exhibit C to Ordinance 94-219, Section XII.
Washington law is clear that no city may establish fixed land use and
development regulations that cannot be ever modified or changed.
' As described above the City should consider IRG's three pending proposals together as a single
application following evaluation of the whole proposal under SEPA.
June 4, 2018
Page 7
A) Washington Law Prohibits One Legislative Body from Binding Future
Councils.
The effect of the CA as interpreted by the applicant is that no later rules,
regulations, legislation or council action can modify the agreement; it is permanent and
never capable of modification. This concept is not consistent with Washington law for
the following reasons.
Under settled Washington law, a municipality "cannot enter into contracts binding
on future boards of commissioners." See State ex. rel. Schlarb v. Smith, 19 Wn.2d 109,
112,141 P.2d 651 (1943). See also Miller v. City of PortAngeles, 38 Wn.App. 904
(1984) where it is recognized that a local government cannot contract away its police
power. It is recognized that this rule must be construed in the context of whether the
contract involves its legislature function or its administrative/proprietary function. This
issue was considered in some detail in AGO 2012, No. 4, which concluded as follows:
If a contract impairs the "core" legislative discretion, eliminating or substantially
reducing the discretion future bodies might exercise, the courts are likely to find
that the contract has improperly impaired the legislative authority of future
commissioners."
Moreover, the CA permits deviations from the current city standards. For example, at
Paragraphs 14.2 and 15, the CA prohibits the city from collecting impact fees for an
additional 300,000 square feet of corporate office development, an indulgence not
permitted under existing codes. Similarly, Section XII of the CP-1 zoning allowed
deviations from even the then -existing sensitive area ordinances, making it inconsistent
with those codes. Indeed, Paragraph 4.1 of the CA (page 5) specifically provides that
"to the extent Federal Way policies impose development standards conflicting with this
Agreement, this Agreement shall control." Accordingly, the CA, which is claimed to bind
all Federal Way councils forever, is ultra vices.
It is also important to note that the CA in question is different from contract
rezones or other similar legislative actions. These agreements ordinarily set forth what
will, or will not, be done on a property as a part of a rezone; in such cases, the work will
be completed as a part of the contract rezone. The CA here is not related to any project
proposed when it was executed; its sole intention is to limit the authority of the City to
take actions in the future and to allow undefined future development.
B) Washington Law Regulating Annexation Zoning Ordinances Does Not Permit
Ordinances That Last Forever.
As a city formed under the Optional Municipal Code (OMC), RCW Title 35,
Federal Way must comply with the terms of chapter 35.14 when annexing new territory.
June 4, 2018
Page 8
In particular, RCW 35A.14.330 allows an OMC city to prepare a zoning regulation to
become effective in an area to be annexed. Subsections (1) and (2) define the scope of
a potential pre -annexation zoning, while subsection (4) provides as follows:
(4) The time interval following an annexation during which the ordinance or
resolution adopting any such proposed regulation, or any part thereof, must
remain in effect before it may be amended, supplemented or modified by
subsequent ordinance or resolution adopted by the annexing city or town.
As described, this legislation allows an OMC city to establish only a "time interval"
during which the pre -annexation zoning regulation "must remain in effect." Without such
a "time interval," a local legislative authority could amend the interim zoning ordinance
at any time, as described above.
RCW 35A.14.330(4) plainly requires zoning have a "time interval" during which
the pre -annexation zoning will be binding before it may be amended or modified.
Nothing in this statute allows the local government to make permanent pre -annexation
zoning, any more than zoning adopted pursuant to the planning and zoning chapter of
the OMC, chapter 35A.63, could be made permanent.
The statute is supported by Washington caselaw regarding the permanency of
zoning, as discussed in Bishop v. Town of Houghton, 69 Wn.2d 786, 792, 420 P.2d 368
(1966):
We have no quarrel with respondents' basic theme to the effect that while zoning
implies a degree of permanency, it is not static and zoning authorities cannot
blind themselves to changing conditions. Thus, when conditions surrounding or in
relation to a zoned area have so clearly changed as to emphatically call for
revisions in zoning, the appropriate zoning authorities are under a duty to initiate
proceedings and consider the necessity of pertinent modifications of their zoning
ordinances. Otherwise, outmoded zoning regulations can become unreasonable,
and the zoning authorities' failure to suitably amend or modify their ordinances
can become arbitrary, in which event courts can and should grant appropriate
relief. 2 Metzenbaum, Zoning, 1125 (2d ed. 1955).
Land use regulations cannot be frozen in time nor be immune to new priorities,
changed circumstances, scientific study or community needs.
A zoning ordinance that can never be modified is inconsistent with the authority
granted to the City of Federal Way and is thus void.
June 4, 2018
Page 9
C) The GMA Requires Updating of Development Regulations on_a_ Periodic
Basis: The CA Cannot be Immune from the Obligation of Continuing Review.
Federal Way is not only subject to the rules established by the OMC, but also to
the Growth Management Act, RCW chapter 36.70A (GMA). One of the obligations
imposed by the GMA under RCW 36.70A.130 is for continuing review on a periodic
basis. Under this statute each local Comprehensive Plan and the local development
regulations:
shall be subject to continuing review and evaluation by the county or city that
adopted them. Except as otherwise provided, a county or city shall take
legislative action to review and, if needed, revise its comprehensive land use
Ian and development regulations to ensure the plan and regulations comply with
the requirements of this chapter according to the deadlines in subsections (4)
and (5) of this section.
(Emphasis supplied.)2 Subsection (1)(c) further states: "(c) The review and evaluation
required by this subsection shall include, but is not limited to, consideration of critical
area ordinances...." These sections requiring periodic review were imposed by the
legislature after the adoption of Federal Way's Ordinance 94-219 in 1994. The
provisions are to assure that local government regulations remain current with scientific
advancements and needs of the community. In addition, when considering amendment
of a comprehensive plan or development regulations, the City is obligated to "establish
and broadly disseminate to the public a public participation program identifying
procedures providing for early and continuous public participation in the development
and amendment of comprehensive land use plans and development regulations
implementing such plans." RCW 36.70A.140.
As it relates to critical areas, since the adoption of Ordinance 94-219 by the City,
new legislation has modified the content of critical area rules. In 1995, the Legislature
adopted RCW 36.70A.172, which requires as follows:
(1) In designating and protecting critical areas under this chapter, counties and
cities shall include the best available science in developing policies and
development regulations to protect the functions and values of critical areas. In
2 Use of the word "shall" by the legislature has a distinct meaning in Washington jurisprudence:
Moreover, "shall" when used in a statute, is presumptively imperative and creates a mandatory
duty unless a contrary legislative intent is shown. Phil. 11 v. Gregoire, 128 Wash.2d 707, 713, 911
P.2d 389 (1996); State v. Krall, 125 Wash.2d 146, 148, 881 P.2d 1040 (1994).
Goldmark v. McKenna, 172 W n.2d 568, 575, 259 P.3d 1095, (2011).
June 4, 2018
Page 10
addition, counties and cities shall give special consideration to conservation or
protection measures necessary to preserve or enhance anadromous fisheries.
This section mandated that local governments take account of best available
information in adopting critical area regulations, including publications such as
"Wetlands in Washington State - Volume 2: Guidance for Protecting and Managing
Wetlands." See https://fortress.wa.gov/ecy/publications/summarypages/0506008.html.
As noted above, the applicant seeks to opt out of these provisions by reliance on
Ordinance 94-219. However, the City has recently adopted Ordinance 15-797, codified
as Chapter 19.145 of the Federal Way Code, which regulates Environmentally Critical
Areas (ECA) in the City. The purpose of this ordinance is as follows:
The purpose of this chapter is to protect the environment, human life, and
property from harm and degradation. This is to be achieved by precluding or
limiting development in areas where development poses serious or special
hazards; by preserving and protecting the quality of drinking water; and by
preserving important ecological areas such as steep slopes, streams, lakes and
wetlands. The public purposes to be achieved by this chapter include protection
of water quality, groundwater recharge, stream flow maintenance, stability of
slope areas, wildlife and fisheries habitat maintenance, protection of human life
and property and maintenance of natural stormwater storage and filter systems.
FWC 19.145.010. FWC 19.145.015 provides as follows: "Except as otherwise
established in this chapter, if a proposed development activity requires city approval,
this chapter will be implemented and enforced as part of that process." FWC
19.145.020 clarifies its application: "The provisions of this division apply throughout the
city and must be complied with regardless of any other conflicting provisions of this
title." The provisions of this title that do not conflict with the provisions of this division
apply to the subject property. Conflicts with the CP-1 zoning are resolved in favor of the
adopted critical area ordinances.
Accordingly, the property in the CP-1 zone must be consistent with the revised
ECA ordinance; no provision of the current code exempts the CP-1 zone from its
application or allows a completely out of date code to be applied in the city.
D) The Attempt in the CA to Vest to Future Permit Activity is Inconsistent with
Washington Law.
In 1987, the Washington Legislature established the rules for vesting of
development applications in RCW 19.27.095 and 58.17.033. In this legislation, either a
building permit or a plat would vest when a "fully complete application" was made. As
noted in Snohomish County v. Pollution Control Hearings Board, 386 P. 3d 1064, 187
June 4, 2018
Page 11
Wash. 2d 346, 105 Wash.2d 778, 789, 719 P.2d 531 (2016): "Washington's vested
rights doctrine originated at common law, but is now statuto ", citing Town of Woodway
v. Snohomish County, 180 Wn.2d 165,173 (2014) (emphasis supplied).
The applicant here claims that it is vested to 1994 standards by virtue of the CA,
but the terms of Washington law do not allow vesting in advance of the filing of a
complete building permit or plat application. There was no complete building permit or
plat application filed when the CA was agreed to in 1994. Our courts have held that the
statutory vesting doctrine only applies when an applicant files "a completed application
for a building permit." Potala Village Kirkland, LLC v. City of Kirkland, 183 Wn.App. 191,
334 P.3d 1143 (2014). In Potala, the Court rejected the proposition that an application
for a substantial development permit would vest rights against zoning changes.
In the present case, the applicant claims the Pre -Annexation Zoning Agreement
and the CP-1 Zoning in the CA vest it to development regulations in effect at the time,
some twenty-four years ago. But, nowhere has the legislature adopted a rule that
allows pre -annexation zoning under RCW 35A.14.330 to vest development rights. The
rules established in 1987 codified the vested rights doctrine and limited its application to
building permits, plats and later (1995) development agreements. Attempts to vest
rights based on this pre -annexation zoning are not effective and any review of the
current applications should be consistent with existing land use regulations and
controls.
3. CONCLUSION.
The applicant's proposals violate basic standards for review.
First, with three complete applications on the CP-1 zoned property, Washington
law and local ordinances require that project review be consolidated. This applies not
only to review for consistency with the city codes, but also SEPA review and analysis.
An environmental checklist should be prepared that identifies and reviews the entirety of
the three pending applications. This does not present a hardship to the applicant
because it has already assembled data for its projects, all that is required is the
consolidation of this information.
Second, the city should apply current zoning, environmental and critical area
ordinances to the three applications. Consideration of the pending applications under
twenty-four year old ordinances is completely inconsistent with Washington law that
prohibits ordinances that would bind local governments forever, especially in light of the
statutory requirement to continually assure that zoning and environmental regulations
are updated to take account of the latest standards and considerations.
June 4, 2018
Page 12
Thank you for consideration of SWC's views. Please do not hesitate to contact me if
you .have any questions.
Sincerely,
b URu EusTf , LL.P
Jt�r,
. Richard Arambu
JRA:cc
cc: Save Weyerhaeuser Campus
Attachment B
Attachment B
Washington State
Department of Transportation
Roger Millar
Secretary of Transportation
February 8, 2017
Timothy J. LaPorte, Director
City of Kent Public Works
220 Fourth Avenue South
Kent, WA 98042-4964
Subject: I-5, SR 18, S 161 vie
Weyerhaeuser HQ Redevelopment
Dear Mr. LaPorte:
Northwest Region
Sno-King Local Agency and Development Services
15700 Dayton Ave. N
P.O. Box 330310
Seattle, WA 98133
The Washington State Department of Transportation (WSDOT) has already met with
Mr. Rick Perez, City of Federal Way (FW) Traffic Engineer, regarding the
redevelopment of the 425-acre Weyerhaeuser corporate campus by the new owner,
IRG LLC. The corporate campus covers 425 acres and nearly 811,000 sq ft of office,
lab, and industrial space.
In 1994, the City entered into a "common land" agreement with the Weyerhaeuser
Corporation for future redevelopment of the site. This agreement vested the future
on -site redevelopment requirements and standards at the 1994 requirements and
standards. Since the City did not have a requirement for master redevelopment plan
in 1994, the City did not require the developer to submit a master redevelopment plan
and IRG, LLC did not provide one either.
We are concerned about the traffic impact to our nearby facilities once the property is
re -developed. We lack the statute authority to require mitigation from the developer
as we are not the permitting agency, but for the record, we would like to express our
concerns on the traffic impacts of this development on the following locations:
Access to the campus is limited to two interchanges: I-5 at S 3201s St and SR
18 at Weyerhaeuser Way. Both interchanges currently operate under severe
congestion, particularly during the PM peak period, but with the growing
economy and increasing traffic volumes we anticipate a spreading of the peak
period congestion.
The SR 18 interchange's close proximity to the 1-5/SR 18 interchange has
significant capacity constraints with minimal weaving opportunity. The
campus redevelopment will add trips into these already congested
interchanges.
February 8, 2017
Weyerhaeuser HQ Redevelopment
Page 2 of 2
We operate the ramp terminal signals at both interchanges. We will continue
to manage the signal operations to limit the risk to mainline I-5 and SR 18,
thus putting more demand on the City's street network.
Phase 2C of the I-5/SR 18/SR 161 Triangle Project includes a flyover ramp
from Weyerhaeuser Way to westbound SR 18, but this phase of the project is
not currently funded.
We would like to offer our willingness to work with the City regarding the concerns
we mentioned above. If you have any questions, or require additional information,
please contact me at 206-440-4710 or Felix Palisoc at 206-440-4713 or via e-mail at
palisof(. r4wsdot. wa.gov.
Sincerely
Ramin Pazooki
Assistant Regional Administrator — King and Snohomish Counties
cc: Project File
R. Brown (King Area Traffic)
Attachment C
Attachment C
CITY OF
...�. Federal Way
October 3, 2012
Dow Constantine, County Executive
King County Chinook Building
401 5th Ave., Suite 800
Seattle, WA 98104
CITY HALL
33325 81h Avenuo South
Fedoral Way, WA 98003-6325
(253) 835-7000
wwww atyofroderalway. com
Re: Additional City of Federal Way Concerns for Potential New Transfer Station Site
Dear Executive Constantine,
Mayor Priest and Federal Way's City Council stand united in opposing "Site B" (located at S 320d' Street
& 1-5) for a new solid waste transfer station. Concerns were already raised in the letter to you dated
September 21, 2012. The Mayor and City Council wish to emphasize additional factors that call into
question the suitability of Site B for a transfer station.
Site B would have significant impacts to transportation in and near Federal Way that would require
expensive mitigation. The intersection of S 320`' Street and Military Road is already over capacity, and
the proposed facility's traffic impact will likely trigger requirements for additional through lanes on
S 3201h Street and Peasley Canyon Road. Site B would also require frontage improvements on S 3201h
Street and traffic signal modifications at Weyerhaeuser Way 5 and/or 32"d Avenue S.
The S 3201h Street corridor is also a commonly -used diversion route when SR 18 backs up due to
congestion on 1-5 emanating from Fife and Tacoma, a regular occurrence. During these times,
westbound traffic on 5 320`h Street becomes a solid backup from 23'd Avenue S to Peasley Canyon Road
past S 321" Street. This congestion also causes traffic back-ups on the freeway off -ramps onto the
mainline of 1-5, resulting in a significant safety concern.
The City's current Transportation Improvement Plan identifies the need for widening the 5 32V' Street
overpass bridge above 1-5 to 6 lanes; the estimated cost of this project is $101,874,000. The intersection
at 23`d Avenue 5 is particularly significant since it is close to failure and Site B could easily trigger
failure. If not mitigated, this could result in a development moratorium that would styrnie efforts to
encourage development in our designated Urban Center.
The City also has concerns about the impacts to area resident safety. Additional traffic generated by Site
B will congest S 3201h Street to the point where backups will increase South King Fire and Rescue Station
64 and King County Medic One response times. As you know, any delay in emergency response may be
a matter of life and death, with the potential for liability for King County.
City representatives attended the Transfer Station Siting Open House held in Auburn on
September 27, 2012. At the Open House, citizens from in and around Federal Way echoed concerns
about Site B, including: impacts to the environment, wetlands and nearby North Lake; potential safety
King County South County Recycling and Transfer Station Siting Report with Addendum -101
Letter to Executive Constantine
Re: Transfer Station Siting
Page 2
impacts due to blocking emergency vehicles; increased traffic congestion, and increased litter and illegal
dumping. Chamber of Commerce representatives from Federal Way and Auburn also expressed
concerns about traffic impacts arising from Site B.
Mayor Priest and the Federal Way City Council appreciate the County's commitment to seriously
consider input about the transfer station siting process. The Mayor and City Council will continue to
stay involved with the process. If you have any questions about the concerns we've raised in this letter
please contact Cary M. Roe, P.E., Director of Parks, Public Works and Emergency Management at
(253)835-2710orcar y.roeiLWgiy-offederaiwa—co i.
Sincerely,
r
S I pif
st,Mfiyor
:lirn
�-Jeanne edge, Co n ilniember ini Duclos, Coun ilmember
Susan Honda, Councilmember
SP/DD:dl
COUNCIL
I, Deputy M r , �
r.
Bob Ce i, Councilmember
Roger.eeman, Councilmember
—"I*da Kochmar, ouncilmember
cc:
Councilmember Peter von Reichbauer, Metropolitan King County Council
Pat McLaughlin, Director, King County Solid Waste Division
Cary M. Roe, P.E., Director of Parks, Public Works and Emergency Management, City of Federal Way
Ken Miller, P.E., Deputy Director Public Works, City of Federal Way
Rob Van Orsow, Solid Waste and Recycling Coordinator
Day Flle
Attachment D
Attachment D
MEMO
To: Save Weyerhaeuser Campus
c/o Jean Parietti, Lori Sechrist
From: Ross Tilghman
Date: 8 November 2018
Subject: Greenline Warehouse A —Transportation Comments
I have reviewed the Traffic Impact Analysis (dated March 6, 2018 and prepared by TENW) for the
proposed warehouse project on the Weyerhaeuser Campus, along with the City of Federal Way's
Comprehensive Plan and municipal code. I have also reviewed the SEPA checklist, the Mitigated
Declaration of Non -Significance and staff evaluation for the project. Additionally, I have looked
briefly at the TIA for Greenline Business Park (dated April 27, 2018 and prepared by TENW). My
comments follow.
1. The TIA does not include other known projects in the vicinity of the Weyerhaeuser Campus in
its analysis. Two significant known projects were excluded: the DaVita office expansion
located at 32275 32"d Ave S; and the proposed Greenline Business Park consisting of over 1
million square feet of new development. City code requires traffic from background projects to
be included in the traffic analysis once those projects have received a Capacity Reserve
Certificate (CRC). More common SEPA practice for traffic analysis is to include projects that
have already applied for land use approvals. In any case, the scale of the omitted projects
makes the omission significant in terms of traffic volumes. For example, a separate traffic study
for the Greenline Business Park project shows that it alone is expected to generate over 3,200
new daily vehicle trips, with 471 new trips in both the AM and PM peak hours, and DaVita's
expansion will add still more trips. Since those projects anticipate opening in 2020 and 2021,
they fall in line with the schedule proposed for Warehouses A and B (2019 and 2020,
respectively).
2. The TIA should have used new counts in its analysis that reveal higher traffic volumes at
Weyerhaeuser Way S/SR-18 to determine if mitigation of poor operations is warranted. The
TIA relies on counts from 2016 even though the author conducted new counts in 2017 for a
Tilghman Group Page 1
4618 40 Avenue South
Seattle, Washington 98118
Voice: 206-577-6953
subsequent traffic study of the Greenline Business Park dated just seven weeks after the
Warehouse A study. The resulting difference between the level of service findings at SR-18 is
stark and unexplained.
Difference in LOS Results at Weyerhaeuser Way S/SR-18 Westbound Ramps
2020 with Warehouse A + B
Document AM Peak Hour PM Peak Hour
LOS / Delay (secs) / v/c LOS / Delay (secs) / v/c
Warehouse A TIA LOS D 41.0* 0.96* LOS D 53.1 1.11
(March 6, 2018)
Greenline Business Park TIA LOSE 65.1 1.28 Not reported
(April 27, 2018)
* The delay and v/c ratio reported in Table 6 for the combined warehouses appear in error, with better results than foriust
Warehouse A in Table S. The cause appears to be erroneously entered signal timing data. In any case, the extreme
difference in results between the reports stands.
The new counts in October 2017 show somewhat higher volumes than the July 2016 counts
used in the Warehouse A analysis. The Warehouse A study could easily have incorporated the
new counts since the report was released nearly five months later, but clearly didn't do so.
It is possible that a recalculation of the projected 2020 volumes from the updated counts with
Warehouse A & B would show LOS E, which would trigger the need to mitigate the SR-18
Westbound Ramp intersection. Also, the queuing analysis should be updated with the new
counts and correct signal timing information and its results should be compared to observations
of actual queues to determine its accuracy.
The peculiar result of this segmented analysis of Greenline's warehouses and business park is
that the SR-18 ramp intersection would be mitigated by neither Warehouse A or B which claim
not to cause LOS E, nor by the business park which claims that LOS E is a background condition.
The applicant cannot have it both ways since its projects clearly create the LOS E condition that
requires mitigation.
This circumstance of differing data points and results from the same applicant and consultant
team underscores the need for the consistent, comprehensive analysis that an EIS provides.
TIA should include other known projects in its background analysis in order to show
cumulative impacts for the morning peak hour. Important impacts in the morning peak hour
may be missed if known projects are excluded just because they have not yet received a
Capacity Reserve Certificate. The CRC program addresses only the afternoon peak hour.
However, warehouse, distribution and light industrial uses typically generate more traffic in the
morning than in the afternoon, particularly with trucks. This is another reason why it is logical
and reasonable to include known projects in the analysis, and not just those with a CRC.
Tilghman Group
4618 44eh Avenue South
Seattle, Washington 98118
Voice: 206-577-6953
Page 2
Municipal code 19.90.190(2) allows the city to exercise its SEPA authority to mitigate sub-
standard LOS results in the moening peak hour.
4. The City should request additional analysis of the impacts of truck traffic on Weyerhaeuser
Way north of the site, or measures to prevent trucks from being able to travel north of the
site. Noting that trucks will seek to avoid congestion on SR-18, the city expresses its concern
about trucks travelling north of the site to reach the 1-5/S. 320th interchange in terms of
pavement strength. The city acknowledges that this is not a truck route. Accordingly, the city
imposed a condition on Warehouse A requiring bonding for future street reconstruction should
truck trips exceed a predetermined threshold. However, that condition should not become a
de facto reclassification of Weyerhaeuser Way S as a truck route. That significant policy
change would require updating the Comprehensive Plan. And the city's concern should extend
to other truck impacts on that route including safety and compatibility with adjacent single-
family neighborhoods.
Site design could restrict truck access exclusively to and from the south. The site plan shows
methods to discourage truck turns to the north, but it does not appear to prevent trucks from
entering from the north. As this potential routing stems from concerns about avoiding
congestion on SR-18, the city should question whether large scale warehouse and distribution
uses are truly appropriate for this location.
5. If it has not already done so, the applicant should apply for a new CRC. A past CRC was issued
for the previous Preferred Freezer/Orca Bay project on the site but that application has since
been withdrawn. Per city code, the CRC expired with that withdrawal. A new CRC is required
for Warehouse A and for Warehouse B.
Tilghman Group Page 3
4618 44th Avenue South
Seattle, Washington 98118
Voice: 206-577-6953
ARAMBURU & EUSTIS, LLP
,ttornevs at Law
J. Richard Aramburu
rick@Armburu-eustis.com
Jeffrey M. Eustis
eustis@aramburu,eustis.com
720 Third Avenue, Suite 2000
Seattle, WA 98104
Tel 206.625.9515
Fax 206.682.1376
www.aramburu-eustis.com
November 9, 2018
Stacey Welsh Via Email:
Federal Way City Hall Stacey.Welsh@
33325 8th Avenue South cityoffederalway.com
Federal Way, Washington 98003
Re: MDNS for Greenline Building "A" Development (File No. 16-102948-SE)
Dear Ms. Welsh:
This office represents Save Weyerhaeuser Campus (SWC), a Washington nonprofit
corporation organized and existing to protect and preserve the community and natural
values of the Weyerhaeuser Campus and adjacent areas. SWC has been active over
the past several years in providing comment on proposals by Industrial Realty Group
(IRG) to develop three projects on the former Weyerhaeuser Campus.
On October 26, 2018, the Federal Way SEPA Responsible Official issued a Mitigated
Determination of Nonsignificance (MDNS) for the Greenline Warehouse A, a 225,950
square foot general commodity warehouse with 287 parking spaces on a 15.46 acre
parcel. The proponent is Federal Way Campus LLC. The comment period for this
proposal ends on November 9, 2018.
This letter constitutes SWC's comments on the Warehouse A proposal. In summary,
the MDNS was issued in error for two reasons. First, the city should have defined the
scope of this threshold determination to be the entirety of the IRG proposals on the
former Weyerhaeuser Campus, including Greenline Warehouse "B" (File No. 17-
104236-UP) and the Greenline Business Park (File No. 17-105491). These overall
proposals clearly would have significant adverse impacts. Secondly, the impacts of
Warehouse "A" alone create a reasonable likelihood of more than a moderate adverse
impact on environmental quality. In either case, the currently issued MDNS should be
withdrawn and scoping should begin for preparation of a full environmental impact
statement.
This comment letter incorporates the comments provided by SWC on the Greenline
Business Park proposal on May 29, 2018, which are attached hereto (see Attachment
November 9, 2018
Page 2
A) and incorporated by this reference. In that letter, SWC indicated that the Greenline
Business Park and Warehouses "A" and"B" should be consolidated for land use and
environmental review.
STANDARDS FOR ISSUANCE OF A THRESHOLD DETERMINATION.
Under the SEPA rules the city must determine whether a proposal "is likely to have a
probable significant adverse environmental impact. WAC 197-11- 330(1)(b). A single
significant impact is enough to warrant an EIS, but also "(c) Several marginal impacts
when considered together may result in a significant adverse impact;" ... Id. at
330(3)(c). Here there are several impacts that must be considered, including historic
impacts as outlined by letters from King County, the State of Washington Department of
Archaeology & Historic Preservation (DAHP) and other agencies and individuals. SWC
has read these letters, agrees with them and incorporates them by reference herein.
CUMULATIVE IMPACTS.
The Greenline Business Park has been under consideration for almost a year. On
November 14, 2017, IRG submitted multiple documents to the city as a part of the
Greenline Business Park application. Included were the following:
• A full Process IV site plan with 18 pages of detailed project drawings for the
proposal.
• Facade drawings showing design details of glazing and exterior materials.
• A parking analysis for the building.
• A geotechnical report
• A critical areas report and conceptual mitigation plan
• A trip generation analysis
• A completed environmental checklist.
• Preliminary Technical Information Report Analyzing stormwater impacts.
According to the Environmental Checklist, the Business Park proposal would cover 32
acres with impervious surfaces (including a total of 1,466 parking stalls) and about 900
people would work at the completed project. Some additional materials for the project
were submitted to the City in late March, 2018, which included a visual impact, air
quality and noise report. No additional project drawings were provided.
As noted in our May 29 letter, the Warehouse "A" and "B" and Greenline
Business Park projects should be combined for review. Comments herein supplement
that letter.
Correspondence from the City on the Warehouse "A" MDNS has contended that
Warehouse "B" and the Greenline Business Park are complex projects that may take
November 9, 2018
Page 3
additional time for review, thus environmental review under SEPA cannot take place at
this time. The City's position reflects a fundamental misunderstanding of the law.
Under WAC 197-11-055, two obligations are created for local government. First,
under Subsection 1:
The SEPA process shall be integrated with agency activities at the earliest
possible time to ensure that planning and decisions reflect environmental values,
to avoid delays later in the process, and to seek to resolve potential problems.
(Emphasis supplied). This obligates the local government to assure that SEPA
becomes a part of local decision making. Second, under Subsection 2:
(2) Timing of review of proposals. The lead agency shall prepare its threshold
determination and environmental impact statement (EIS), if required, at the
earliest possible point in the planning and decision -making_ process, when the
principal features of a proposal and its environmental impacts can be reasonably
identified.
(a) A proposal exists when an agency is presented with an application or
has a goal and is actively preparing to make a decision on one or more
alternative means of accomplishing that goal and the environmental
effects can be meaningfully evaluated.
(Emphasis supplied). Under WAC 197-11-310(2):
(2) The responsible official of the lead agency shall make the threshold
determination, which shall be made as close as possible to the time an agency_
has developed or is presented with a proposal (WAC 197-11-784). If the lead
agency is a GMA county/city, that agency must meet the timing requirements in
subsection (6) of this section.
(Emphasis supplied). WAC 197-11-784 provides that: "A proposal exists at that stage in
the development of an action when an agency is presented with an application .. .
Note that the use of the word "shall" in WAC 197-11-310(2) is mandatory, but the City
has not issued a threshold determination for the Greenline Business Park, despite
having detailed project plans and environmental reports for approximately a year. The
City's failure to act violates its obligation to issue a threshold determination "as close in
time as possible to the time an agency ... is presented with a proposal", placing itself
in violation of this clause.
The City apparently takes the position that a threshold determination should be
issued only late in the process after complete, thorough review of the application.
However, that is not consistent with the SEPA rules cited above. We suspect that City
staff engages in negotiation with applicants, including IRG, concerning conditions of
November 9, 2018
Page 4
threshold determinations. Not only does that process eliminate public review of
threshold determinations, it makes the comment period on a DNS or MDNS a
meaningless exercise because agreements may have already been reached with the
applicant and public comments are likely to be ignored.
The time for the city to issue a threshold determination for the Greenline
Business Park project has long since passed. Abundant detail is available for that
project and the applicant long ago submitted environmental documents for review. As
indicated in our May 29 letter, combined review of the three IRG projects is mandated
by SEPA and the SEPA rules.
The City and the Applicant are not permitted to hold SEPA review hostage to
their advantage to prevent combined review of clearly integrated projects. The divide
and conquer strategy is wholly out of place in these proceedings. An environmental
impact statement is required for these projects and the MDNS should be withdrawn.
TRAFFIC IMPACTS ARE SIGNIFICANT.
The MDNS substantially ignores the significant impacts of new traffic on the local
streets and on SR 18 and 1-5.
The head -in -the -sand approach of the City is contrary to law and ignores impacts
outside the City's jurisdiction. While the MDNS provides for some mitigation to city
streets, it does not address at all state highways that will be impacted, except to
acknowledge the obvious, that 1-5 southbound congestion routinely occurs between SR
18 and South 320th interchange." However, no mitigation is even suggested for these
impacts, other than to say that trucks from Warehouse "A" could utilize the South 320tn
Street /SR-5 interchange. Local residents and business owners are seriously impacted
by this congestion on state highways, but this impact is ignored by the City.
The traffic projected from the currently proposed developments, as drawn from
the existing trip generation reports, is as follows:
Total for Warehouses A/B only:
All vehicles -- 1,948
Trucks -- 390
AM peak -- 255 vehicles, 51 trucks
PM peak -- 197 vehicles, 39 trucks
Greenline Business Park
All vehicles -- 3,217
Trucks -- 418
AM and PM peak -- 427 vehicles, 56 trucks
Saturday peak -- 320 vehicles, 42 trucks
November 9, 2018
Page 5
Total for all developments (Warehouses A, B, Greenline):
All vehicles -- 5,165
Trucks -- 808
AM peak hour -- 682 vehicles, 107 trucks
PM peak hour -- 624 vehicles, 95 trucks
The addition of 5,165 trips per day to the existing street system must be considered
significant.
Nor can the City ignore comments by the Washington Department of
Transportation made to the City in February, 2017, on these issues. That letter, from
Ramin Pazooki, Assistant Regional Administrator for WSDOT, is attached (Attachment
B). His letter points out that the two access points for the IRG proposals, Weyerhaeuser
Way/SR 18 and S. 320th/1-5, both "currently operate under severe congestion,
particularly during the P.M. peak period, but with the growing economy and increasing
traffic volumes we anticipate a spread of the peak period congestion." He also notes
that the "close proximity" of the SR 18/Weyerhaeuser Way interchange to the 1-5/SR 18
interchange means the roadway "has significant capacity constraints with minimal
weaving opportunity." Mr. Pazooki also notes that the ramp signals at WSDOT
interchanges are managed to limit the risk to "mainline 1-5 and SR 18 thus putting more
demand on the City's street network." In conclusion, he notes that state projects to
address the congestion identified are not funded.
COMPLIANCE WITH TRANSPORTATION CONCURRENCY MANAGEMENT
PROGRAM IN FWCC CHAPTER 19.90.
In addition, it appears that the City has ignored compliance with its own
ordinances. The City has adopted its "Transportation Concurrency Management"
system in FWCC chapter 19.90. This chapter implements the transportation
concurrency provisions of the Federal Way comprehensive plan . The principal
implementing mechanism of concurrency management is the Capacity Reserve
Certificate or "CRC." A development permit applicant that generates any net new trips
in the peak hour requires a CRC. FWCC 19.90.120. As applicable here, a CRC
application must consider cumulative impacts:
(2) For the purposes of this chapter, application for a development permit shall
include consideration of the cumulative impacts of all development permit
applications for contiguous properties that are owned or under the control of the
same owner, when one or more development permits would be issued within two
years of the date of issuance of a development permit for such contiguous
property.
November 9, 2018
Page 6
FWCC 19.90.120. As applied here, the applicant for the Warehouse A project is also
the owner of two other contiguous properties which currently are the subject of
development permit applications, as discussed in our May 29, 2018 letter attached
(Attachment A). Given the length of time the two application have been pending, it
appears these permits would be issued within two years.
As indicated above, each of these applications "shall include consideration of the
cumulative impacts of all development permit applications." As seen by the charts
above, the total traffic impact from these uses is huge. However, the development
application for the Warehouse A project does not include consideration of the
cumulative impacts of the Warehouse B or Greenline Business application.
Accordingly, the Warehouse A application is incomplete and insufficient and must be
returned to the applicant for compliance with FWCC 19.90.120(2). Without an
application that is compliant with the Code, no threshold determination under SEPA can
be issued and the current MDNS should be withdrawn.
We understand that city staff takes the position that the requirements of FWCC
19.90.120(2) are met because the City issued a CRC for the Preferred Freezer/Orca
Bay Seafood proposal under City File No. 16-102866-CN on July 16, 2016. That
project was described in the July 16, 2016 CRC as: "Corporate HQ with
Manufacturing/Processing." That CRC has a specific limitation that reads as follows:
This CAPACITY RESERVE CERTIFICATE is valid only for the specific
development approval consistent with development parameters and the City file
number contained with this certificate. If the development is changed, expired,
cancelled or withdrawn, it will be subjected to reevaluation for concurrency
purposes.
Under "Terms of the Capacity Reserve Certificate," the 2016 CRC states:
This CAPACITY RESERVE CERTIFICATE is valid until the underlying
development permit expires, is withdrawn or cancelled, whichever occurs first.
This limitation tracks with FWCC 19.90.100 that provides that the CRC is only valid
"until the development permit expires, is withdrawn, or is cancelled, whichever occurs
first."
In fact, the Preferred Freezer/Orca Bay project was withdrawn in 2016. As the MDNS
indicates, the new project is "Greenline Warehouse "A" which is described as a "general
commodity warehouse" with a brand new Federal Way file number, 16-102948-S.E.
Based on the foregoing, the prior CRC is no longer valid. Accordingly, any
development application is subject to FWCC 19.90.120(2), and consideration of the
November 9, 2018
Page 7
"cumulative impacts" of both the Warehouse B and Greenline Business Park
applications is required.
Further, consistency with Chapter 19.90 as resolving transportation and traffic issues
does not resolve all traffic congestion issues. FWCC 19.90.190(2) states as follows:
(2) Concurrency determinations provide for mitigation only for vehicle capacity
issues during the weekday evening peak hour. Mitigation of transportation
impacts outside of vehicle capacity issues during the weekday evening peak
hour shall be addressed through other review processes (in city code, land use
permit conditions, or SEPA). This analysis may be prepared either by the
applicant or the city at the applicant's expense.
In the Transportation Concurrency Management code, the "Peak Hour" is extremely
limited:
"Peak houe' means the highest volume of traffic for a continuous hour between
4:00 p.m. and 6:00 p.m. on weekdays.
FWCC 19.90.010 "Definitions." Accordingly, the scope of CRC mitigation is limited to a
single evening hour during weekdays. However, it is well known that traffic congestion
extends well beyond the one hour referenced in the code; indeed, WSDOT mentions
the extension of severe traffic congestion to multiple hours during the afternoon peak.
Traffic congestion is also a weekend issue. More importantly, the CRC does not
consider any congestion during the morning peak traffic time. It is incumbent on the
city to consider adverse traffic and transportation impacts during the extended
afternoon peak hours, weekend hours and the morning peak hours. The City offers no
mitigation for these serious impacts, which affect persons both inside and outside the
city.
CITY RECOGNITION OF SERIOUS TRAFFIC PROBLEMS.
We also note that the City itself objected to a proposal of the King County Solid
Waste Division (KCSWD) for a transfer station at the north corner of 1-5 and S. 320th
Street in a letter written to the King County Executive on October 3, 2012, more than six
years ago. A copy of that letter is attached hereto as Attachment C. The letter indicated
that "the S. 3201h corridor is a commonly -used diversion route when SR 18 backs up
due to congestion on 1-5" and "during these times, westbound traffic on S. 320'�'
becomes a solid backup from 23`d Avenue S to Peasley Canyon Road." The letter
indicates that this congestion "also causes traffic back-ups on the freeway off -ramps
onto the mainline of 1-5, resulting in a significant safety concern." The letter also stated
the City had additional concerns "about resident safety" due to the additional traffic from
the transfer station. The transfer station's traffic analysis projected that 12 new net
P.M. peak hour project trips would be generated by the transfer station. As you can see
November 9, 2018
Page 8
from the foregoing charts, the traffic from the IRG proposals dwarfs the traffic impacts
from the proposed transfer station. This information certainly indicates the need for a
full environmental impact statement.
In the present case, environmental review of the Greenline Business Park should
have begun some time ago and a threshold determination is well overdue. As
described above, substantial detail has been known about the Greenline Business Park
for at least a year, including detailed project plans, traffic analysis, critical area reports
and similar reports and studies. I also attach the report from Ross Tilghman, an expert
transportation planner that addresses other serious deficiencies in the transportation
analysis. See Attachment D.
STORMWATER AND DRAINAGE ISSUES.
The proposal, together with the other applications, will have significant impacts related
to stormwater on Hylebos Creek and other resources downstream of the proposals. A
basin plan has been developed by King County for this drainage, entitled the "Hylebos
Creek and Lower Puget Sound Current and Future Conditions Report", adopted in
1994. See https://your.kingcounty.gov/dnrp/library/1991/kcr773.pdf
Because of the sensitive nature of the Hylebos Basin, special treatment is required
under the current stormwater manual. The conditions and modifications are outlined in
the chart attached to that report. Plainly the addition of this large amount of stormwater
requires careful environmental review in a full environmental impact statement.
MDNS DOES NOT PROVIDE EFFECTIVE MITIGATION.
The City has issued a MDNS, listing what is labeled as a "Summary" of Mitigation
Measures. None of the supposed mitigation measures call out or identify any changes
in the project itself. Conditions 2 and 5 are related to construction impacts, but they do
not impact the build itself.
Condition 4 indicates that if the building use "includes cold storage, processing or
manufacturing, "then the current Air Quality Report (March, 2018) must be revised."
However, the proposal, as stated on the MDNS, is for a "general commodity
warehouse." Condition 4 seems to state that the applicant can change the use of the
building and still retain the MDNS. Indeed, this condition is suspiciously similar to the
Preferred Freezer project that was withdrawn in 2016, which included "cold storage,
processing or manufacturing" uses. The City cannot allow the project to change uses in
mid review, but retain this MDNS. The City should require that the use of the building
be what is stated on the MDNS itself.
We are unclear what process the City used in determining to issue the MDNS. Was
there a notice to the applicant that a determination of significance was likely, as
described in WAC 197-11-350(2)? Did the applicant make any changes in the proposal
November 9, 2018
Page 9
so that an MDNS could be issued? It appears that no changes were made in the
proposal and this should be stated in the .MDNS.
Condition 8 references the conditions related to roadway surface and depth due to
possibly heavy truck use and road reconstruction. Amazingly, there is no discussion of
or mitigation to the traveling public or neighborhood residents of the huge volume of
traffic anticipated from these projects. There is also no condition related to possible
limitation of truck or other vehicular traffic, such as by directing such traffic to different
routes or limiting hours of use. It appears that the City has misapprehended its ability
to mitigate impacts. The MDNS should be rescinded and conditions related to actual
traffic volumes be included, or because of the massive volume of traffic anticipated
from these projects, an environmental impact statement should be :prepared.
CONCLUSION.
The MDNS on Warehouse A has been issued in error. It should be withdrawn, a
determination of significance issued and scoping initiated for an environmental impact
statement. As noted in this comment, a fundamental error of the Responsible Official is
the failure to consider the cumulative impacts of the three projects for which
applications have been pending for more than a year. In addition, the City has failed to
properly consider the massive volume of traffic from the site, and the .adverse
downstream impacts of the large amount of stormwater coming from this property.
Sincerely,
APAM13URU & EUSTI, LLP
W
J. Richard Arambu u
JRA:cc
cc: Clients
ARAMBURU & EUSTIS, LLP
Lttornevs at law
J. Richard Aramburu
rick@araraburu-eustis.com
Jeffrey M. Eustis
eustis@aramburu-eustis.com
720 Third Avenue, Suite 2000
Seattle, WA 98104
Tel 206.625.9515
Fax 206.682.1376
www.aramburu-eustis.com
November 15, 2018
Brian Davis Submitted by Email to:
Community Development Director Brian.Davis@cityoffederalway.com
City of Federal Way
33325 81' Ave. S.
Federal Way, WA 98003
Re: MDNS for Greenline Building "A" Development (File No. 16-102948-SE )
Dear Mr. Davis:
Last week I sent you, as the Federal Way :responsible official, a comment letter on the
draft MDNS that you advertised for this project, on behalf of Save Weyerhaeuser
Campus (SWC), a community organization dedicated to protect and preserve the
community and natural values of the Weyerhaeuser Campus and adjacent areas.
We have now had the opportunity to review comment letters from other individuals,
agencies, tribal governments and organizations.. The attached "Summary of Agency
and Tribal Comments on Warehouse 'A' MDNS" :provides the most important excerpts
from the agency and tribal comments. As you can see, these comments concern traffic
and transportation, stormwater, fisheries impacts and historic values, all core "Elements
of the Environment" under WAC 197-11-444.
These comments provide overwhelming evidence of the significance of the proposed
uses of the Weyerhaeuser Campus by the current developer and the need to review
cumulatively the impacts from the several proposals with pending applications. Many of
the other commenters support these views.
SWC urges you to carefully consider the comments from the City's agency and tribal
partners in management of the values and resources of this important part of the
community. The comments clearly lead to a conclusion that an environmental impact
statement, considering the cumulative impacts of these pending proposals, is the
responsible and legally required action under SEPA. Any course of action that would
November 18, 2018
Page 2
continue the flawed MDNS, requiring an expensive and time consuming appeal for all
involved, is not appropriate.
Thank you for your consideration of these views. Please advise us immediately of
your decision regarding the MDNS.
Sincerely,
Arum uRu EuSTIS i_P
J. Richard Aramburu
JRA:cc
cc: Clients
Summary of Agency and Tribal Comments on Warehouse "A" MDNS
Washington State Department of Transportation
All four project proposals — Warehouse A, Warehouse B, Greenline Business Park and the
DaVita office building — must be analyzed together to fully assess the "direct, indirect, and
cumulative impacts of all four developments to WSDOT's facilities and their function."These
projects will have an impact on the 1-5 and SR 18 ramps adjacent to the campus.
Warehouse A and Warehouse B "independently exceed the vehicular trip threshold for
determining whether a highway improvement should be requested"; additional projects will
add to those trips. WSDOT requests the city require 300 feet to of "storage" to decrease
backups for right -turning traffic coming off the westbound SR 18 off ramp onto Weyerhaeuser
Way.
WSDOT is reviewing the project's hydraulic report for impacts to SR 18's right of way and
drainage system, and will submit comments by Nov. 27, 2019.
King County Department of Transportation
• KCDOT requests that all five warehouses "be reviewed together under SEPA, to ensure that
cumulative traffic volume and congestion impacts to the regional road network are
understood and appropriately mitigated." The city's apparent "incremental project -level
approach" is insufficient.
• The scope of the applicant's Traffic Impact Analysis (TIA) should be expanded, with additional
evaluation of impacts to surrounding streets and alternate routes trucks will use to access
Interstate 5, including Military Road between South 320th Street and the South 272nd Street
interchange.
• The applicant has not demonstrated mitigation of additional truck traffic onto these alternate
routes.
King County Department of Natural Resources and Parks
• The applicant's technical information report (TIR) should "explicitly address how theproject's
stormwater design is meeting or exceeding the standards ... in the Executive Proposed Basin
Plan/Hylebos Creek and Lower Puget Sound."
A downstream analysis must include "all available information on the downstream area to
fully identify existing drainage and water quality problems." The analysis has only been done
for one -quarter mile downstream; it potentially must extend further under the regulations of
the 2016 King County Surface Water Design Manual, which the city of Federal Way has adopted.
The Hylebos basin is within the WRIA 10 salmon recovery jurisdiction, so Federal Way should
be working with the recovery forum and the Puyallup Tribe to ensure the SEPA review is
consistent with that plan.
Washington State Department of Archeology and Historic Preservation
• DAHP disagrees with the MDNS because comments it previously submitted to the city
"requesting an evaluation of the property for its historical and architectural significance" have
not been appropriately considered.
The campus is eligible for listing on the National Register of Historic Places. "Given the high
potential that the subject site and surrounding Weyerhaeuser property is significant for its
design, landscape, and plan, we recommend that the City consider the impact of the proposal
on the character and quality of this location and on Federal Way's heritage as well as its
future."
A comprehensive survey and inventory should be completed, and there should be a thorough
exploration of alternative proposals. If the current proposal is approved, "we recommend that
additional mitigation measures be identified and included in the City's determination
document."
Puyallup Tribe of Indians
• The Puyallup Tribe requests that the city require an Environmental Impact Statement to
address significant site and cumulative impacts.
• Filling wetlands where Warehouse A and B are proposed "not only will permanently impact site
wetland hydrology, but will also impact downstream flows to Hylebos Creek," used by
Endangered Species Act species such as steelhead, chinook and bull trout. The Tribe and others
have spent millions of dollars to restore the system over the last several decades
• "it continues to allude us why the agencies and city are bifurcating these development
proposals, other than to circumvent environmental review and analysis of impacts. We
strongly disagree with the decisions to review these proposals separately. As we have stated,
a sufficient and complete assessment of impacts cannot be completed based on the available
information. This is not only inconsistent with SEPA requirements, but City Ordinance 94-219,
adopted in 1994, as part of the annexation of the Weyerhaeuser Campus. "
Muckleshoot Indian Tribe
8 The Muckleshoot Indian Tribe agrees with the Puyallup Tribe's comments regarding
cumulative impacts. Analysis must include watershed planning efforts as required by the 2016
King County Surface Water Design Manual, which the City has adopted.
• More information is needed about required road improvements to determine further direct or
indirect impacts to wetlands, onsite Stream EA or the East Fork of Hylebos Creek.
• The culvert connected to Stream EA is a fish -passage barrier and must be replaced by 2030
under a federal court injunction. If not for the culvert, this stream has the potential to be a fish -
bearing water; the stream needs to be reassessed to determine if it meets the criteria for
presumed fish habitat under the Washington Administrative Code.
• Tribal treaty rights must be respected and successful resolution of tribal concerns addressed,
both with the City and with the United States Army Corps of Engineers, not by the applicant.