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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.