2022-02-07 - Decl of Brian Davis ISO City Motion for Summary Judgment1
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BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
In re: Appeal of Formal Code Interpretation,
File No. 21-104304-00-UP
DAVID LEELAND MANN,
Appellant,
CITY OF FEDERAL WAY,
DECLARATION OF BRIAN DAVIS IN
SUPPORT OF CITY' S MOTION FOR
SUMMARY JUDGMENT
I, Brian Davis, declare as follows:
I. I am employed by the City of Federal Way ("City") as the City Community
Development Director. As part of my responsibilities as Community Development
Director, I oversee and manage Community Development Department staff, as well as
the overall operation of the department.
2. City staff in the Community Development Department routinely receive and process
development applications, including building permits for residential remodels as well
as land use permits for accessory dwelling units ("ADU"),
3. In general, staff are able to easily determine whether a proposed detached structure
accessory to a single-family residence constitutes an ADU under the Federal Way
Revised Code ("FWRC"), and thus requires an ADU permit.
DECLARATION OF BRIAN DAVIS IN SUPPORT OF Federal Way City Attorney
CITY'S MOTION FOR SUMMARY JUDGMENT - 1 33325 8th Ave South
Federal Way, WA 98003
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4. However, staff have considerably more difficulty in determining whether a proposed
attached addition to an existing single-family residence that contains an additional
kitchen constitutes an ADU under FWRC, and thus requires an ADU permit.
5. In my opinion, the difficulties that staff have in distinguishing between whether
additional attached living facilities constitute ADUs under FWRC are. at least in part.
due to potential ambiguity in the ADU definition contained in FWRC.
6. In my opinion, the potential for ambiguity also creates the potential for both
inconsistent staff approaches in identifying ADUs, as well as lack of clarity and
confusion for property owners in the City regarding whether they need an ADU permit
in conjunction with a proposed development.
7. To clarify the potentially ambiguous application of the ADU definition to additional
attached living facilities in single-family residences, on October 15, 2021 1 issued a
formal code interpretation, a true and correct copy of which is attached as Exhibit A.
The code interpretation applies city-wide, and interprets the meaning of the ADU
definition and clarifies its applicability to various specific internal layouts of
additional living facilities within single-family residences.
8. A true and correct copy of the public notice of the formal code interpretation is
attached as Exhibit B.
9. Appellant, Mr. DaNrid Mann, submitted a notice of appeal of the October 15, 2021
code interpretation on November 8, 2022.
1 hereby declare under penalty of perjury under the laws of the State of Washington
that the foregoing is true and correct.
SIGNED this 7 dan of Imo, 20x2at FZ"j ctl�, . Washington.
Respectfully submitted,
t
DECLARATION OF BRIAN DAVIS IN SUPPORT OF Federal Way City Attorney
CITY'S MOTION FOR SUMMARY JUDGMENT - 2 33325 W Ave South
Federal Way, WA 99003
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By:
ian Davis
Community Development Director
City of Federal Way
DECLARATION OF BRIAN DAVIS IN SUPPORT OF Federal Way City Attorney
CITY'S MOTION FOR SUMMARY JUDGMENT - 3 33325 8th Ave South
Federal Way, WA 98003
Exhibit A — Formal Code Interpretation
44k
CITY OF
Federal Way
DEPARTMENT OF COMMUNITY DEVELOPMENT
33325 81h Avenue South
Federal Way WA 98003
253-835-7000;Fax 253-835-2609
www.cityoffederalway.com
FORMAL CODE INTERPRETATION
DATE: October 15, 2021
TO: Interpretation Notebook
FROM: Brian Davis, Director of Community Development 02--
SUBJECT: Clarifying When Additional Living Facilities in a Single -Family Residence
Constitute an Accessory Dwelling Unit under Federal Way Revised Code
("FWRC")
I. INTRODUCTION
In order to provide affordable housing to the citizens of the City of Federal Way ("City"),
and to comply with the Growth Management Act, 36.70A RCW ("GMA"), accessory dwelling
units ("ADU") are allowed in certain zones in the City subject to the owner obtaining an ADU
permit and complying with the applicable zone -specific ADU regulations. See FWRC
19.265.020(3) (permit required); see also FWRC 19.195.180 (ADUs in the suburban estate zone);
FWRC 19.200.180 (ADUs in the single-family residential zone).
ADU is a defined term under Title 19 FWRC, which explicitly includes both (1)
freestanding ADUs that are "not attached or physically connected to the primary dwelling unit,"
and (2) attached ADUs which have "one or more vertical and/or horizontal walls in common with
or attached to the primary dwelling unit." FWRC 19.05.010. Relevant to this code interpretation,
for a use to constitute an ADU under FWRC, it must provide "complete, independent living
facilities exclusively for one single housekeeping unit." FWRC 19.05.010 (emphasis added).
Determining whether complete living facilities containing permanent provisions for living,
sleeping, cooking, and sanitation are sufficiently independent and exclusive to constitute an ADU
can be difficult depending on the unique circumstances of a particular proposal. On one hand,
whether or not a particular detached structure containing complete living facilities is sufficiently
independent and exclusive is generally clear and easy to identify because the structure is physically
separated from the primary dwelling unit.
On the other hand, determining whether additional complete living facilities located within
or attached to a single-family residence are sufficiently independent and exclusive to constitute an
attached ADU—and therefore require an ADU permit separate and apart from the single-family
residence on the property —is a considerably more nuanced and difficult question. This question
frequently arises in the context of a single-family homeowner seeking a building permit for an
addition to their single-family home that includes a second kitchen. In general, no provisions in
the City's zoning or building codes prevent a single-family residence from having multiple
kitchens, bathrooms, bedrooms, and living areas; the question is when such additional living
facilities trigger the requirement for an ADU permit. t
As a result, in order to clarify the potentially ambiguous application of the ADU definition
with respect to additional living facilities located within or attached to single-family residences,
and to promote consistent and clear City staff application of the ADU code and associated
permitting, the City has elected to issue this code interpretation.2 See FWRC 19.50.020, .040
(providing that an interpretation may be issued on the City's initiative to clarify conflicting or
ambiguous application of the code). As explained in further detail below, when such additional
living facilities are internally connected to the remainder of the single-family residence, the
additional living facilities constitute an ADU under FWRC only when they are separated from the
remainder of the residence at minimum by a door that can be internally locked from within the
additional living facilities. When such additional living facilities are solely separated from the
remainder of the residence by a door without a lock that may be freely opened from either side,
the additional living facilities are not sufficiently "independent" or "exclusive" to constitute an
ADU as defined under FWRC. See FWRC 19.05.010.
IL ANALYSIS
A. Standard of Review and Decisional Criteria.
Under FWRC, a code interpretation decision shall be based on:
(a) The defined or the common meaning, as applicable, of the words in the
provision;
1 Additionally, while not directly relevant to the narrow issue in this code interpretation, distinguishing between single-
family residences with additional living facilities and single-family residences with ADUs is further made difficult by
the Washington State Legislature's recent enactment of ESSB 5235, which preempts a city's ability to "regulate or
limit the number of unrelated persons that may occupy a household or dwelling unit." See ESSB 5235 (available at
https: lllawfilesext. leg. wa.gov/bienniuml2021-22IPdfIBillsISession %20LawsISenate/5235-S. SL.pdf#page=1).
2 As explained previously, the significance of whether a particular use constitutes an ADU lies in the permitting
implications. In the City, any "[owner] desiring to construct and/or operate an ADU shall be required to apply for and
obtain an ADU permit from the department of community development services," and all permitted ADUs in the City
"shall meet the definition outlined in FWRC 19.05.010." FWRC 19.265.020(3); FWRC 19.195.180 n.l; FWRC
19.200.180 n.1. Accordingly, only those particular uses of property that qualify as an ADU under FWRC require an
ADU permit.
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(b) The general purpose of the provision as expressed in the provision; and
(c) The logical or likely meaning of the provision viewed in relation to the
comprehensive plan, this title, the Federal Way Revised Code as a whole, or other
plans and studies prepared or adopted by the city.
FWRC 19.50.040(2). Similarly, terms not defined in FWRC 19.05 or under FWRC 1.05.020
"shall be given their usual meaning." FWRC 1.05.020.
Additionally, in determining the meaning of a municipal ordinance, the "same rules of
statutory construction apply ... as to the interpretation of state statutes." Seattle Hous. Auth. v. City
of Seattle, 3 Wn. App. 2d 532, 538-39, 416 P.3d 1280 (2018) (internal quotations omitted). The
fundamental principle of statutory construction is to ascertain and carry out the legislature's intent,
and "if the meaning of a statute is plain on its face, then the court must give effect to that plain
meaning as an expression of legislative intent." Id. Plain meaning is derived from the "ordinary
meaning of words, the basic rules of grammar, and the statutory context... [and w]e may look to a
dictionary to determine the plain meaning of an undefined term." Id. (citing HomeStreet, Inc. v.
Dep't of Revenue, 166 Wn.2d 444, 451 (2009)).
B. For Additional Living Facilities in a Single -Family Residence to Qualify as ADUs,
They Must be Independent and Exclusively for One Single Housekeeping Unit.
ADUs are a defined term under FWRC, thus the question of whether a particular use
constitutes an ADU begins with a close analysis of the term's definition. See FWRC 19.05.005
(providing that the definitions contained in FWRC 19.05 apply throughout Title 19); FWRC
19.265.020 (providing that terms referenced in the ADU code "shall have the meanings set forth
in Chapter 19.05 FWRC"). The FWRC defines ADUs as follows:
"Accessory dwelling unit (ADU)" means either a freestanding detached structure,
excluding outdoor storage containers and similar structures used or designed to be
used as living facilities, or an attached part of a structure which is accessory to the
main or primary dwelling unit located on the subject property, providing complete,
independent living facilities exclusively for one single housekeeping unit, including
permanent provisions for living, sleeping, cooking and sanitation. See FWRC
19.265.020. ADUs include:
(1) "ADU, attached" means an accessory dwelling unit that has one or more vertical
and/or horizontal walls in common with or attached to the primary dwelling unit.
(2) "ADU, detached" means a freestanding accessory dwelling unit that is not
attached or physically connected to the primary dwelling unit.
FWRC 19.05.010 (emphasis added).
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The definition contains several elements that a particular use must meet in order to
constitute an ADU. See id. Under the plain meaning of the definition, regardless of whether a
particular structure is detached or attached, in order for it to constitute an ADU it must contain
permanent provisions for living, sleeping, cooking and sanitation and "provid[e] complete,
independent living facilities exclusively for one single housekeeping unit." Id. Because the term
"independent" and the clause "exclusively for one single housekeeping unit" both modify "living
facilities," for any particular living facility to constitute an ADU it must be both (1) independent,
and (2) exclusively for one single housekeeping unit.3 See id. To determine otherwise would
render the usage of the words independent and exclusive superfluous. See HomeStreet, 166 Wn.2d
at 452 (each "word of a statute is to be accorded meaning... so no clause, sentence or word shall
be superfluous, void, or insignificant") (internal quotations omitted).
In sum, in order to qualify as an ADU under the applicable definition in FWRC, additional
living facilities within a single-family residence must contain permanent provisions for living,
sleeping, cooking and sanitation, and be both independent and exclusively for one single
housekeeping unit. If a certain additional living facility fails this test, then it is not an ADU for
purposes of FWRC.
C. An Additional Living Facility in a Single -Family Residence that is Internally
Connected to the Remainder of the Single -Family Residence Must Be Separated from
the Rest of the Residence by a Door that Can be Locked from Within the Additional
Living Facility in Order to Be Sufficiently Independent and Exclusive to Constitute
an ADU.
As explained above, an additional living facility must be both independent and exclusive
in order to constitute an ADU. Thus, the question is under what factual circumstances an additional
living facility in a single-family residence is sufficiently independent and exclusive to qualify as
an ADU.
Neither the word independent nor the word exclusive are defined in FWRC, therefore resort
to a dictionary to determine their common meaning is appropriate. FWRC 19.50.040(2); FWRC
1.05.020; Seattle Hous. Auth., 3 Wn. App. at 538-39. Merriam -Webster defines independent as
"not dependent: such as ... la(1) not subject to control by others; la(2) not affiliated with a larger
controlling unit. ,4 Exclusive is defined as "la: excluding or having power to exclude; lb: limiting
or limited to possession, control, or use by a single individual or group."5
s As stated previously, the living facilities must also be "complete" and include "permanent provisions for living,
sleeping, cooking and sanitation," but for the purposes of this code interpretation the City assumes those elements are
met. FWRC 19.05.010.
4 See Independent, MERRtAM-WEBSTER.COM, hitp://www.merriam-webster.com/dictionaM/independent /rampendent (last visited
Oct. 12, 2021).
5 See Exclusive, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/exclusive (last visited Oct.
12, 2021).
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Applying these definitions to various scenarios, an attached additional living facility with
a separate outside entrance that is structurally connected to the primary dwelling unit but not
internally connected is clearly independent and exclusive. In such a situation, the additional living
facilities are internally separated and physically independent from the primary dwelling unit, have
their own unique external entrance, and the residents may meaningfully exclude the occupants of
the primary dwelling unit through the separate external entrance and limit possession and use of
the additional living facility to its occupants.
But lack of internal connectivity is not the only way that an additional living facility can
be sufficiently independent and exclusive to constitute an ADU. See FWRC 19.195.180 n.7
(providing that an ADU may be accessed through the entrance to the primary dwelling unit);
FWRC 19.200.180 n.7 (same). A single-family residence with an additional living facility where
the primary and accessory dwelling units share a common entryway or foyer from the exterior of
the structure, but have an additional unique key entry to each of the primary and accessory dwelling
units, is also sufficiently independent and exclusive. While the accessory dwelling unit now shares
an external entrance with the primary dwelling unit, the separate keyed entrance in the entryway
or foyer still affords the occupants of the additional living facilities the means to control access,
the ability to exclude, and to create significant independence from the primary dwelling unit.
In certain circumstances, a single-family residence with an additional living facility that is
internally connected to and accessed through portions of the single-family residence (such as by
first passing through the living area or kitchen of the primary dwelling unit), or which shares the
use of certain spaces outside the additional living facility and within the single-family residence
(such as a shared laundry or family room) can also be sufficiently independent and exclusive to
qualify as an ADU. When such an additional living facility is separated from the remainder of the
residence by a door that can be internally locked from within the additional living facility, the
occupants of the additional living facility still retain some level of independence, ability to control
access, and ability to exclude others. While the independence and exclusivity of such a scenario
is much less obvious than an additional living facility with no internal connectivity, the baseline
ability to exclude and to limit possession of the additional living facility to solely its occupants
remains.6
Correlatively, a single-family residence with an additional living facility that is internally
connected to a single-family residence, but not separated from the remainder of the residence by a
door that can be internally locked from within the additional living facility, does not qualify as an
ADU. An unlocked door —which essentially may be freely opened from either side at any time-
6 Importantly, in the case of an additional living facility that shares use of certain spaces in the primary dwelling unit
outside the additional living facility, the required permanent provisions for living, sleeping, cooking, and sanitation
must be located within the additional living facility and behind the door that can be internally locked for the use to
constitute an ADU. A situation where a bedroom and bathroom and living area are separated from the remainder of
the house by a locked door, but utilize a shared kitchen elsewhere in the single-family residence, is not an ADU
because the "complete" living facilities are not independent and exclusive. See FWRC 19.05.010 (living facilities
must be complete, independent, and exclusive).
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does not provide the ability for an occupant of the additional living facility to meaningfully control
access, exclude others, or limit possession or use of the living facility by other occupants of the
residence. Rather, it suggests that the living facilities are affiliated directly with the larger unit,
and use of the living facility is not exclusive to its occupants. Each of the previously discussed
scenarios creates significant independence and exclusivity for the additional living facility in ways
that an unlocked door does not. As a result, additional living facilities that are separated from the
remainder of the structure solely by an internal door which cannot be internally locked from within
the additional living facility are not independent or exclusively for one single housekeeping unit
as contemplated by the ADU definition, and therefore simply do not constitute ADUs under
FWRC.
III. CONCLUSION
Additional living facilities in single-family homes that are internally connected to the
remainder of the single-family residence constitute an ADU under FWRC only when they are
separated from the remainder of the residence by a separate keyed entry in an entryway or foyer,
or at minimum by a door that can be internally locked from within the additional living facility.
When such additional living facilities are solely separated from the remainder of the residence by
a door that may be freely opened from the remainder of the residence, the additional living facilities
are not sufficiently "independent" or "exclusive" to constitute an ADU as defined under FWRC,
and no separate ADU permit is required for their use or construction.
Exhibit B — Notice of Interpretation
DEPARTMENT OF COMMUNITY DEVELOPMENT
A 1% 33325 81' Avenue South
CITY OF Federal Way WA 98003
Federal Way 253-835-7000; Fax 253-835-2609
www.cityoffederalwLay.com
NOTICE OF INTERPRETATION
Project Name
File No. 21-104304-00-UP
Citation of Code Provision
Federal Way Revised Code ("FWRC") 19.05.010
Summary Statement of Interpretation
An additional set of living facilities internally connected to a single-family residence, which contains
complete permanent provisions for living, sleeping, cooking, and sanitation, constitutes an Accessory
Dwelling Unit only when it is separated from the remainder of the residence by a door that can be
internally locked from within the additional living facilities. When the additional living facilities are
solely separated from the remainder of the residence by a door without such a lock that may be freely
opened from either side, the additional living facilities are not sufficiently independent or exclusive to
constitute an Accessory Dwelling Unit.
Date of Interpretation
October 15, 2021
Availability of Official File
The official project file is available for public review at the Department of Community Development
(33325 8' Avenue South, Federal Way, WA 98003). Office hours are 9:00 a.m. to 4:00 p.m.,
Monday through Friday.
Right to Appeal
Any person who is aggrieved by this interpretation may appeal the interpretation within 14 days of
this notice. The appellant must file a letter of appeal indicating how the interpretation affects his or
her property and present any relevant arguments or information on the correctness of the
interpretation. The applicant shall include appeals fees as established by the city. The appeal will not
be accepted unless the required fee accompanies it. An appeal of this interpretation will be reviewed
and decided upon using Use Process IV.
Deadline for Filing an Appeal
On or before November 8, 2021, 4:00 p.m.
City Staff Contact
Keith Niven, Planning Manager
253-835-2643
Keith.niven(kcityoffederalway. com
Published in the Federal Way Mirror on: October 22, 2021