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Council PKT 04-20-1999 Special/Regular AGENDA FEDERAL WAY CITY COUNCIL Council Chambers - City Hall April 20, 1999 (www. ci.federal-way, wa. us) SPECIAL SESSION - 5:30 PM BUILDABLE LANDS/HOUSING BRIEFING II. ADJOURNMENT REGULAR MEETING - 7:00 PM CALL MEETING TO ORDER III. IV. PLEDGE OF ALLEGIANCE PRESENTATIONS Proclamation/Youth Recognition W~k Proclamation/Federal Way Fire Department 50t~ Year Celebration Diversity Commission Introduction/Certificate Economic Development Update Tacoma Water Secondary Supply Project Update Emerging Issues CITIZEN COMMENT PLEASE COMPLETE THE PINK SLIP & PRESENT TO THE DEPUTY CLERK PRIOR TO SPEAKING. Citizens go may address City Council at this time. When recognig, ed by the Mayor, please come forw~d to the podium, adjust the microphone to proper height, and state your name and address for the record. PLEASE LIMIT YOUR REMARKS TO THREE O) MINUTES. Ute Mayor tnay interrupt citizen comments that continue too long, relate negatively to other individual~, or are otherwise inappropriate. CONSENT AGENDA (Items listed below have been previously reviewed by a Council Committee of three members and brought before full Council for approval; all items will be enacted by one motion; individual items may be removed by a Councilmemberfor separate discussion and subsequent motion.) ao Minutes/April 6, 1999 Regular Meeting Council Bill #219/Adult Entertainment Activity or Uses Code Amendment/ Enactment Ordinance VI. VII. VIII. IX. ao bo co 1999 Grant Applications for Transportation Neighborhood Traffic Safety Project/Nautilus #2 Surface Water Management (SWM) Flatl~ed Dump Truck Purchase PUBLIC HEARING Indoor Billboard Inc. Appeal of Hearing Examiner Denial of Variance - Staff Report - Citizen Comment City Council Deliberation COUNCIL BUSINESS Planning Commission Appointment (alternate appointment/resignation) INTRODUCTION ORDINANCES Council Bill #220/Fire Code Amendment AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER $ OF THE FEDERAL WAY CITY CODE AND ADOPTING THE 1997 UNIFORM FIRE CODE, (AMENDING ORDINANCE NOS. 90-33, 92-127 AND 92-143). Council Bill/q221/Nuisance/Noise Code Amendment & Vehicle Storage Code Amendment AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER 22, FEDERAL WAY ZONING CODE, AND CHAPTER 10, FEDERAL WAY NUISANCE/NOISE CODE, OF THE FEDERAL WAY CITY CODE, ADOPTING SPECIFIC AMENDMENTS AND ADDING NEW REGULATIONS FOR OUTDOOR VEHICLE STORAGE AND DEVELOPMENT ACTIVITY HOURS AND NOISE RELATED TO DEVELOPMENT ACTIVITY. Council Bill #222/New Civil Violations Chapter AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, CREATING A NEW CHAPTER 1.14, CIVIL VIOLATIONS OF THE CITY CODE, RELATING TO ENFORCEMENT OF CERTAIN CITY CODES AND PROVIDING FOR CIVIL PENALTIES FOR VIOLATION THEREOF. CITY MANAGER REPORT CITY COUNCIL REPORTS ADJOURNMENT THE COUNCIL MAY ADD AND TAKE ACTION ON OTHER ITEMS NOT LISTED ON THE AGENDA PROCLAMATION "YOUTH RECOGNITION WEEK" April 19-23, 1999 WHEREAS, the City of Federal Way recognizes that positive interaction with youth is important to the community's quality of life, and furlher serves as an investment in our city's future; and WHEREAS, the city established the City of Federal Way Youth Commission to serve as an advisory body to the City Council, city commissions and city staff on issues such as youth programs, recreational activities, dance clubs and other issues of importance to local youth; and WHEREAS, the Youth Commission has identified April 19-23, 1999, as a week recognizing outstanding youth in the community, including special activities, and culminating in an annual awards ceremony and youth recognition evening on April 22; and WHEREAS, the City Council endeavors to continually recognize and support the efforts and activities of local youth and the City's Youth Commission; NOW, THEREFORE, we, the undersigned City Councilmembers of the City of Federal Way, Washington, do hereby commend the Youth Commission for its very important work in the community by proclaiming April 19-23, 1999, as "Youth Recognition Week~, and do further encourage citizen support and recognition of our city's outstanding youth. SIGNED this 20a day of April, 1999. CITY OF FEDERAL WAY Ron Gintz, Mayor Michael Park, Deputy Mayor Jeanne Burbidge Jack Dovey Mary Gates Linda Kochmar Phil Watkins PROCLAMATION FEDERAL WAY FIRE DEPARTMENT 50ru YEAR CELEBRATION WHEREAS, the Federal Way Fire Department, formerly known as the King County Fire Protection District Number 39, has served Unincorporated King County as well as the City of Federal Way since 1949; and WHEREAS, the Federal Way Fire Depangnent covers an extensive area of 34 square miles, previously under the supervision of four fire districts; and WHEREAS, the 128 members of the department, including 95 firefighters, are responsible for the safety and well being of over 100, 000 citizens served by their districts; and WHEREAS, the Federal Way Fire Department was one of the pioneering fire agencies to place defibrillators on all of its apparatus; and WHEREAS, the Federal Way Fire Department is celebrating its year in existence with a number of community events; NOW, THEREFORE, we the City Council of the City of Federal Way recognize and congratulate the FEDERAL WAY FIRE DEPARTMENT for 50 years of dedicated service to the citizens of South King County and the City of Federal Way. SIGNED this 2ff~ day of April 1999. CITY OF FEDERAL WAY Ron Gintz, Mayor Michael Park, Deputy Mayor Jeanne Burbidge Jack Dovey Mary Ga~es Linda Kochmar Phil Watkins MEETING DATE: April 20, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: _~X_ CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ N/A Expenditure Amt: $ N/A Contingency Reqd: SN/A ATTACHMENTS: Minutes o£April 6,Assistant to the City Manager Derek Matheson announced another 15 minutes necessary at 9:03 PM. 1999 Regular City Council Meeting. SUMMARY/BACKGROUND: Official City Council Meeting Minutes for Permanent Record Pursuant to RCW Requirements. CITY COUNCIL COMMITTEE RECOMMENDATION: CITY MANAGER RECOMMENDATION: Approve Official Minutes PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # DRAFT FEDERAL WAY CITY COUNCIL REGULAR MEETING Council Chambers - City Hall April 6, 1999 - 7:00 p.m. MINUTES CALL MEETING TO ORDER Mayor Gintz called the regular meeting of the Federal Way City Council to order at 7:05 PM. Councilmembers Present: Mayor Gintz, Deputy Mayor Park, Councilmembers Burbidge, Dovey, Gates, Kochmar and Watkins. Staff Present: City Manager Kenneth Nyberg, Deputy City Manager Philip Keightley, City Attorney Londi Lindell, Deputy City Attorney Bob Sterbank, City Clerk Chris Green and Deputy City Clerk Laura Ulanowski. II. PLEDGE OF ALLEGIANCE III. PRESENTATIONS ao Certificate of Achievement - Excellence in Financial Reporting City Manager Kenneth Nyberg presented the Certificate of Achievement for Excellence in Financial Reporting received by the State of Washington to Management Services Director Iwen Wang and Deputy Director Marie Mosely. Mr. Nyberg stated the City has received this award every year since incorporation. bo Certificates of Appreciation - Celebration Park Donations Councilmember Dovey thanked the Boeing Corporation for their contribution of $35,000 to Celebration Park; Hugh and Jane Ferguson for their contribution of $7,500, and Ralph Trineck for his contribution of $7,500 and stated they were all unable to attend tonight's council meeting. Councilmember Dovey then presented a plaque' to Tom Pearson of Senator Pete von Reichbauer's office for his contribution to Celebration Park. Councilmember Dovey announced the dedication of the park is scheduled for May 22, 1999. bo Emerging Issues - Derek Matheson, Assistant to the City Manager, updated Council and the public on Year 2000 (Y2K) compliance. Mr. Matheson stated the City will continuously update the public using the web page and government access channel TV 28. City Council Regular Meeting April 6, 1999 - Page 2 IV. CITIZEN COMMENT Denny Lensegrav, Puget Sound Energy, introduced himself to Council stating he is looking forward to working with the Council and City Staff. H. David Kaplan, urged Council to renew the contract with the Economic Development Executive during the mid-year budget review. Barbara Reid, thanked Public Works department for fast service in fixing a pot-hole she reported. Ms. Reid stated maintenance issues for parks are fiscally challenged and asked for volunteers to help cut-back blueberry bushes at the blueberry farm. Patrick Redmond, entered a statement into the record expressing concern regarding the substantial retaining wall surrounding their property in the Ventana Preliminary Plat area. Councilmember Watkins stated he would pull the Ventana Preliminary Plat item from the consent agenda and it was discussed that other citizens wishing to speak about the issue could do so at that time. Ve CONSENT AGENDA ao fo Minutes/March 16, 1999 Regular Meeting Voucher/April 6, 1999 Monthly Financial Report/February 1999 Parks/Recreation Commission 1999 Work Plan/Increase in Membership Resolution/Ventana Preliminary Plat Approval(postponed from 3/16/99)- Approved Resolution # 99-292 1999 City Wide Pavement Marking & Channelization Contract Star Lake Basin Drainage Improvements/85 % Plan Completion Authorization; Project Construction Acceleration Request:& Proposed Interlocal Agreement Purchase of 10 Yard Dump Truck and Side-Boom Mower 1. Resolution/Authorizing Acquisition of Equipment & Financing Contract Approved Resolution # 99-293 2. Resolution/Form of Reimbursement Approved Resolution # 99-294 Permit Tracking System Vendor Selection Approval Suburban Cities Association 1999 Special Assessment Federal Way Entry Signs Design & Location MOTION BY COUNCILMEMBER DOVEY TO APPROVE THE CONSENT AGENDA. DEPUTY MAYOR PARK SECOND. City Council Regular Meeting April 6, 1999 - Page 3 Councilmember Watkins pulled Consent Agenda Item e. Motion to approve consent items a, b, c, d, f, g, h, i, j, and k carried as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watkins yes Consent Item e - Ventana Preliminary Plat Approval: Mayor Gintz recused himself, as he lives in Viewcliff, and turned the meeting over to Deputy Mayor Park. Deputy Mayor Park called for citizen comment regarding the Ventana Preliminary Plat. Howard White, stated he originally opposed the connection from 25th Avenue to the new sub- division, however with the revision of the plan to maintain 25th Avenue as a cul-de-sac that will allow for emergency access to the new sub-division he now supports the plat stating peace and quiet will be maintained. Senior Planner Deb Barker addressed the changes to the proposal and citizen concerns regarding the retaining wall. Ms. Barker stated condition #6 in the Hearing Examiners decision stated retaining walls shall be harmonious throughout the plat. Ms. Barker then presented an overview of the street network showing the revision to the cul-de-sac terminus at 25'~ Avenue NW that will accommodate emergency vehicles. Councilmember Watkins stated he would be voting no on the preliminary plat expressing his concerns with through streets. MOTION BY COUNCILMEMBER GATES TO APPROVE ADOPTION OF REVISED VENTANA PRELIMINARY PLAT. COUNCILMEMBER KOCHMAR SECOND. Deputy Mayor Park called on the Deputy City Clerk for a roll call vote. The motion passed 5 - 1 as follows: Burbidge yes Dovey yes Gates yes Gintz recused Kochmar yes Park yes Watkins no Robert Jones (asked to speak after vote was taken), spoke in support of the Ventana Preliminary Plat and thanked staff and Council for revising the plat. Deputy Mayor Park turned the meeting back over to Mayor Gintz. City Council Regular Meeting April 6, 1999 - Page 4 VI. INTRODUCTION ORDINANCES a. Staff Presentation Community Development Director Stephen Clifton addressed Council stating this ordinance had gone through both the Planning Commission and the Land Use/Transportation Committee and incorporates recommendations from both in Chapter 22 of the Federal Way City Code. Mr. Clifton noted that Council imposed a moratorium on the acceptance of all applications on adult entertainment establishments on February 17, 1998 and extended the moratorium three times in order for staff to review additional studies and draft regulations to adult uses, and to allow the Planning Commission and Land Use/Transportation Committee to review the recommendations. b. Co~tncil Bill # 219/Adult Entertainment Retail Business AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON REVISING AND ADDING DEFINITIONS FOR ADULT ENTERTAINMENT ACTIVITY OR USES, REVISING DISTANCE SEPARATION REQUIREMENTS, AND ADDING AMORTIZATION PROVISIONS TO CHAPTER 22, ZONING. MOTION BY COUNCILMEMBER DOVEY TO MOVE ORDINANCE TO A SECOND READING/ENACTMENT ON APR1L 20, 1999. COUNCILMEMBER WATKINS SECOND. The motion carried as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watkins yes VII. CITY MANAGER REPORT City Manager Kenneth Nyberg stated the Management Team would conduct a 2-day retreat on April 8~h and 9~ - Kathy McClung will serve as acting City Manager and Marie Mosely will serve as acting Deputy City Manager. The City/School Liaison Committee will meet Monday, April 12, 1999 at 7:30 AM at the Federal Way School District; Advancing Leadership Program will hold its first graduation on April 15, 1999 and two city employees, Stephen Clifton and Sandy Lyle will be part of the graduating class; Council will conduct an executive session pursuant to Potential Litigation and Property Acquisition expected to last approximately 40 with action expected. City Council Regular Meeting April 6, 1999 - Page 5 VIII. CITY COUNCIL REPORTS Councilmember Dovey reported the Parks/Recreation/Human Services/Public Safety Committee will meet on Monday, April 12 at 5:30 PM and he will attend an Economic Development Council meeting on Friday, April 9, 1999. Councilmember Watkins reported the Land Use/Transportation Committee will meet on April 19, 1999, and announced the death of a legislative bill on buildable lands which is a victory for Federal Way. Councilmember Watkins thanked the Association of Washington Cities and State Representative Mark Milosia for their work on the bill. Councilmember Burbidge stated she attended the Suburban Cities Meeting on March 30, 1999. Topics of discussion included communication technologies. Councilmember Gates reported the Finance/Economic Development/Regional Affairs Committee will meet on April 27~h at 5:30 PM; two citizens appointed to the Sound Transit Oversight Committee live in Federal Way, and Public Works Director Cary Roe has been appointed by the Suburban Cities Association to work on the endangered species act as it relates to transportation issues. Councilmember Kochmar stated the Airport Communities Coalition has not met recently as the conveyer belt issue through the City of Des Moines has not been settled. Deputy Mayor Park has been selected to attend the Asian Pacific American Leadership Academy May 20-22 in Washington, D.C. and will attend Sherwood Forest Elementary School "Night of Nations" on April 8, 1999 from 6-8 PM. Mayor Gintz stated he will attend a conference in Indianapolis Indiana entitled Character Cities for Mayors on April 8, 1999. Council adjourned to Executive Session at 8:20 PM. IX. EXECUTIVE SESSION Potential Litigation/Pursuant to RCW 42.30.110(1)(i) Property Acquisition/Pursuant to RCW 42.30.110(1 }(bi Assistant to the City Manager Derek Matheson announced another 15 minutes necessary at 9:03 PM. Assistant to the City Manager Derek Matheson announced another 15 minutes necessary at 9:16 PM. Council reconvened to regular session 9:21 PM. City Council Regular Meeting April 6, 1999 - Page 6 MOTION BY COUNCILMEMBER WATKINS TO DIRECT AND AUTHORIZE THE CITY MANAGER TO CLOSE THE ACQUISITION OF CERTAIN REAL PROPERTY REQUIRED BY THE CITY IN CONNECTION WITH THE STREET IMPROVEMENT PROJECT AT S. 336TM STREET AND STATE ROUTE 99, PURSUANT TO THE TERMS OF A CERTAIN REAL ESTATE PURCHASE AND SALE AGREEMENT BETWEEN THE CITY, AS PURCHASER, AND PATTEN TRUSTS, AS SELLER, COVERING CERTAIN REAL PROPERTY LOCATED AT THE NORTHEAST CORNER OF S. 336TM STREET AND STATE ROUTE 99, FEDERAL WAY, WASHINGTON FOR A PURCHASE PRICE OF $60,150.00. COUNCILMEMBER GATES SECOND. The motion carried as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watkins yes Xo ADJOURNMENT There being no further business before the Federal Way City Council, Mayor Gintz adjourned the regular meeting at 9:22 PM. Laura Ulanowski, Deputy City Clerk MEETING DATE: April 20, 1999 ITEM// V(b) CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Proposed Ordinance Amending the Federal Way City Code Related to 'Adult Uses CATEGORY: BUDGET IMPACT: X CONSENT X ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: 1) March 9, 1999 Memorandum to Phil Watkins, Chair and Land Use/Transportation Committee (LUTC) from Stephen Clifton and Londi Lindell ("Attachment 1 ' - attachments to this Memorandum are part of record that is located in Council's offices); 2) Proposed Ordinance Amending the Federal Way City Code (FWCC) Sections 22-1, 22-794, 22-806 and adding a new Section 338.2 ("Attachment 2' - includes LUTC and City Attorney proposed changes which are indicated by shadowing). SUMMARY/BACKGROUND: On February 17, 1998, the Federal Way City Council adopted Resolution 98-268, imposing a moratorium upgn the acceptance of all applications for and issuance of business licenses, building permits, or other licences or permits under the Federal Way City Code for adult entertainment or adult retail uses until additional review could be completed and any necessary code revisions adopted by the Federal Way City Council. The City Council conducted a public hearing on April 7, 1998 to consider written comments, public testimony and materials presented by staff at which time they extended the moratorium to August 16, 1998. During a public hearing on August 11, 1998, the City Council voted to extend the moratorium to February 12, 1999 in order for City staff to review additional studies and draft regulations related to adult uses. The City Council voted on February 2, 1999 for a 6 month renewal of the moratorium. City Staff presented proposed Federal Way Zoning Code amendments to the Federal Way Planning Commission on February 3, 1999. The hearing was continued to February 17, 1999 at which time City staff presented additional information in response to Commissioner questions. Pursuant to FWCC, Section 22-535, the Planning Commission considered the proposed amendments in fight of the decisional criteria outlined in Section V of Attachment 1. By a majority vote of the entire membership (7-0), the Planning Commission recommended that the City Council adopt the proposed code amendments attached. A copy of the full Record including the Staff Report to the Planning Commission and subsequent submittals is available for your review in City Council offices. On March 15, 1999, the LUTC reviewed the Community Development Director's Report related to the recommendation of the Planning Commission. The LUTC voted to forward the recommendation of the Planning Commission to approve the proposed Ordinance to the full City Council. The LUTC also proposed changes to the proposed new FWCC Section 22- 338.2. Subsequent to the LUTC meeting, the City Attorney requested further revisions to Section 22-1 and Section 22-338.2 as indicated by shadowing in the attached Ordinance (see Attachment 2). On April 6, 1999, after considering the entire legislative record and considering staff presentation, by a 7-0 vote, the City Council voted to move the Ordinance to the April 20, 1999 City Council regular meeting for enactment. NOTE: ENTIRE LEGISLATIVE RECORD (TWO NOTEBOOKS THICK) IS LOCATED IN CITY COUNCIL OFFICE FOR REVIEW CITY COUNCIL COMMITTEE RECOMMENDATION: Forward the Planning Commission's recommendation to approve the proposed Ordinance subject to language changes proposed by the LUTC. CITY MANAGER RECOMMENDATION: Approve the proposed Ordinance with the proposed changes recommended by the LUTC and the City Attorney. /') ] ~ ~ ~ )~ - ............................................................................................................................................. ......................................................... .... APPROVED FOR INCLUSION IN COUNCIL PACKET: (ltl (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # K:XAGNDITEMXADLTRET.~6 Attachment 1 DATE: March 9, 1999 TO: FROM: Chair Phil Watkins Land Use/Transportation Committee (LUTC) Stephen Clifton, AICP, Director of Community Deve'lxSpment Services Londi Lindell, City Attorney SUBJECT: Planning Commission Report Relating To Adult Uses Proposed Amendments To The Federal Way City Code I. BACKGROUND Adult uses are currently regulated by Chapter 22 of the FWCC. Section 22-1 defines adult uses while Sections 22-794 and 22-806 identify applicable regulations. Adult uses are allowed in the City Center Core and Frame zoning districts subject to a 1,000 foot separation requirement from other adult uses, public parks, libraries, day cares, schools, places of religious worship and other zones which allow residential outright. Existing zoning regulations, relating to adult uses, were adopted in 1990 upon incorporation of the City. In 1995, the City reviewed the impacts of secondary effects of adult entertainment facilities and based on the information presented to and reviewed by the City Council, revisions to the Federal Way City Code, relating to licensing and standards of conduct, were adopted. On February 17, 1998, the Federal Way City Council adopted Resolution 98-268, imposing a moratorium upon the acceptance of all applications for and issuance of business licenses, building permits, or other licences or permits under the Federal Way City Code/'or adult entertainment or adult retail uses until additional review could be completed and any necessary code revisions adopted by the Federal Way City Council. The City Council conducted a public hearing on April 7, 1998 to consider written commentsl public testimony and materials presented by staff at which time they extended the moratorium to August 16, 1998. During a public hearing on August 11, 1998, the City Council voted to extend the moratorium to February 12, 1999 in order for City staff to review additional studies and draft regulations related to adult uses. The City Council voted on February 2, 1999 for a 6 month renewal of the moratorium. II. REASON FOR COUNCIL ACTION III. IV. Pursuant to Federal Way City Code Section 22-537 (See Section VII of this report below), the City Council is responsible for taking final action on zoning text amendments. Section 22-536 requires that the Director of Community Development prepare a Planning Commission Report containing a copy of the proposal along with any explanatory information, and the Planning Commission recommendation, if any, on the proposal. PLANNING COMMISSION RECOMMENDATION City Staff presented proposed Federal Way Zoning Code amendments to the Federal Way Planning Commission on February 3, 1999 (see Attachment 2). The hearing was continued to February 17, 1999 at which time City staff presented additional information in response to Commissioner questions (see February 12, 1999 letter from Stephen Clifton to Federal Way Planning Commission). Included within this submittal is the most recent revised proposed amendments from City staff. Pursuant to FWCC, Section 22-535, the Planning Commission considered the proposed amendments in light of the decisional criteria outlined in Section V of this report. By a majority vote of the entire membership (7-0), the Planning Commission recommended that the City Council adopt the proposed code amendments referenced. Attached to the February 12, 1999 letter is the most recent revised proposed amendments and ordinance. PROCEDURAL SUMMARY February 3 & 17, 1999 Planning Commission Public Hearings March 15, 1999 City Council LUTC Meeting DECISIONAL CRITERIA Sec. 2~2-523. Zoning Text Amendment Criteria The city may amend the text of Chapter 22- Zoning only if it finds that: (I) The proposed amendment is consistent with the applicable provisions of the comprehensive platt; The proposed amendments are consistent with the following Federal Way Comprehensive Plan (FWCP) purposes, goals and policies: FWCP Purpose, Pg. VII-I: "Create an identifiable downtown that is the social and economic focus of the Ci~ ". FWCP Statement, Pg. VII: "Establishment of (m ttrban center that is a vibrant; unique, and attractive place to work ". FWCP CCG5: "Encourage a mix of compatible uses to maintain a lively, attractive, and safe place to live, work and visit" FWCP CCP8: "Establish guidelines which list compatible uses ". FWCP CCP12: "Develop guidelines that ensure effective transitions between different land uses and higher and lower densities ". The proposed regulations are consistent with the purpose statements, policies and goals of the Comprehensive Plan, i.e., they will help to minimize secondary adverse impacts caused by adult uses and require a minimum distance separation between adult uses and non-compatible uses. Not adopting appropriate regulations as proposed would work against the vision and direction for the City Center and City as a whole because adverse secondary impacts would not be adequately regulated. (2) The proposed antendment bears a substantial relation to public health, safety and welfare; The proposed amendments are intended to protect the general public health, safety and welfare of the citizenry of the City by regulating of the location of adult entertainment, activity, retail or use. The proposed regulations are also intended to control the decline in neighborhood conditions in and around adult retail uses, and to isolate dangerous and unlawful conduct associated with these facilities. Reasonable regulation of the location of adult uses will provide for the protection of the community, protect residents, patrons, and employees from the adverse secondary effects of such facilities. and (3) The proposed amendment is in the best interest of the residents of the city. It has also been ac 'knowledged by courts and communities across the nation that state and local governmental entities have a special concern in regulating the operation of such business under their jurisdiction to ensure the adverse secondary effects of the uses are minimized. In this regard, the interests of the City are well served by adopting proposed amendments which: 1) more clearly define what types of adult uses are regulated, 2) allow adult uses only within a specific geographic area, 3) minimize secondary impacts through separation requirements 4) address the issue of compatibility, and 5) provide for VI. VII. amortization of existing nonconforming adult uses. LAND USE AND TRANSPORTATION COMMITTEE ACTION City Staff requests that the Land Use and Transportation Committee recommend the full City Council adopt proposed amendments to the Federal Way City Code related to Adult Uses (See Section VII below). COUNCIL ACTION Pursuant to FWCC, Section 22-537(c), after consideration of the planning commission report and, at its discretion, holding its own public hearing on the proposal, the city council shall by majority vote of its total membership take the following action: 1. Approve the proposal by adopting an appropriate ordinance; 2. Modify and approve the proposal by adopting an appropriate ordinance; 3. Disapprove the proposal by resolution; or Refer the proposal back to the planning commission for further proceedings. If this occurs, the city council shall specify the time within which the planning commission shall report back to the city council on the proposal. NOTES: 1) The February 2, 1999 memo to the Planning Commission references Part One of a Two Part exhibit (Exhibit I of the Staff Report to the Planning Commission) relating to Studies of Secondary Impacts of Adult Entertainment and Retail Establishments. These parts have been consolidated as part of this report (Attachment 2) 2) The February 12, 1999 letter from Londi Lindell regarding Summary of Studies, Cases and Police Records states that Studies 2, 5, 7, 8 and 14 were not summarized (Exhibit I of the Staff Report to the Planning Commission) and should be discarded. These studies deal with the secondary effects of adult entertainment vs. adult retail establishments. As such, they are not included as attachments to this report. Attachments Attachment 1 Attachment 2 Attachment 3 Proposed Ordinance and Amendments to Federal Way City Code Sections 22-1, 22- 338, 22-794 and 22-806. January 27, 1999 Staff Report to the Federal Way Planning Commission Prepared by Greg Moore. Includes consolidated Studies of Secondary Impacts of Adult Entertainment, Retail and Other Activities. February 2, 1999 Letter to the Federal Way Planning Commission adding material to Attachment 4 Attachment 5 the record. February 12, 1999 Letter to the Federal WaY Plauning Commission from Stephen Clifton Regarding Additional Information for the February 17, 1999 Planning Commission Hearing. Attached information includes two February 12, 1999 letters from Londi Lindel regarding 1)Amortization, and 2) Summary of Studies, Cases and Police Records on Secondary Impacts of Adult Retail Establishments. Also attached to the letters are the February 3, 1999 Federal Way Planning Commission hearing minutes, Proposed ordinance and revisions to Items B, C, and D of Exhibit A amending Federal Way City Code Sections 22-1, 22-338, 22-794 and 22-806. February 17, 1999 Federal Way Planning Commission hearing minutes. I:\ADULTUSE\DIRECTRS.RPT/March 10, 1999 Attachment 2 ORDINANCE NO. DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, REVISING AND ADDING DEFINITIONS FOR ADULT ENTERTAINMENT ACTIVITY OR USES, REVISING DISTANCE SEPARATION REQUIREMENTS, AND ADDING AMORTIZATION PROVISIONS TO CHAPTER 22, ZONING. WHEREAS, the Federal Way City Council is committed to protecting the general welfare of the City through the enforcement of laws prohibiting obscenity, indecency, and sexual offenses while preserving constitutionally protected forms of expression; and WHEREAS, the City has made a detailed review of the national record, including studies from the cities of New York, Indianapolis, and Los Angeles, the police records of various cities, and court decisions regarding adult entertainment, activity, retail, or use. The City Council finds that adult entertainment, activity, retail, or use require special supervision from the public safety agencies in order to protect and preserve the health, safety, and welfare of the patrons and employees of said businesses as well as the citizens of the City; and WHEREAS, the City Council finds that concerns about crime and public sexual activity generated and/or occurring within or nearby the adult entertainment, activity, retail, or use are legitimate, substantial, and compelling concerns of the City which demand reasonable regulation; and WHEREAS, the City Council finds that adult entertainment, activity, retail, or use, due to their nature, have secondary adverse impacts upon the health, safety, and welfare of the citizenry through increases in crime and opportunity for spread of sexually transmitted diseases; and ORD # , PAGE I WHEREAS, there is convincing documented evidence that adult entertainment, activity, retail, or use have a detrimental effect on both the existing businesses around them and the surrounding residential and commercial areas adjacent to them, causing increased crime, the downgrading of quality of life and property values and the spread of urban blight. Reasonable regulation of the location of these facilities will provide for the protection of the community, protect residents, patrons, and employees from the adverse secondary effects of such retail facilities; and WHEREAS, the City recognizes that adult entertainment, activity, retail, or use, due to their very nature, have serious objectionable operational characteristics, particularly when located in close proximity to residential neighborhoods, day care centers, religious facilities, public parks, libraries, schools, and other adult entertainment, activity, retail, or use, thereby having a deleterious impact upon the quality of life in the surrounding areas. It has been acknowledged by courts and communities across the nation that state and local governmental entities have a special concern in regulating the operation of such businesses under their jurisdiction to ensure the adverse secondary effects of the uses are minimized; and WHEREAS, this ordinance is intended to protect the general public health, safety, and welfare of the citizenry of the City through the regulation of the location of adult entertainment, activity, retail, or use. The regulations set forth herein are intended to control health, safety, and welfare issues, the decline in neighborhood conditions in and around adult retail uses, and to isolate dangerous and unlawful conduct associated with these facilities; and WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment to the United States Constitution, or Article 1, Section 5 of the Washington ORD # , PAGE 2 State Constitution, but to enact content neutral legislation which addresses the negative secondary impacts of adult entertainment, activity, retail, or use; and WHEREAS, it is not the intent of the City Council to condone or legitimize the distribution of obscene material, and the City Council recognizes that state and federal law prohibits the distribution of obscene materials; and WHEREAS the Federal Way Planning Commission, having considered the proposal at public hearings during 1999, pursuant to Federal Way City Code (FWCC) Section 22-30, and all public notices having been duly given pursuant to FWCC Section 22-528; and WHEREAS the public was given opportunities to comment on the proposal during the Planning Commission review; and WHEREAS the City of Federal Way SEPA responsible official issued a Declaration of Nonsignificance on December 17, 1998; and WHEREAS following the public hearing, the Planning Commission submitted to the Land Use/Transportation Committee of the City Council its recommendation in favor of the proposal, adding sections to the FWCC as noted; and WHEREAS the Land Use/Transportation Committee of the City Council met to consider the recommendation of the Planning Commission and has moved to forward the proposal, with amendments, to the full City Council; and WHEREAS there was sufficient opportunity for the public to comment on the proposal; Now, THEREFORE, THE CITY COUNCm OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAff4 AS FOLLOWS: ()RD # , PAGE 3 Section 1. Findings. Federal Way makes the following findings amendments to the FWCC: 1. After full and careful consideration, the City Council of the City of with respect to the proposal and the proposed The Federal Way SEPA responsible official has issued a Declaration of Nonsignificance on December 17, 1998; and 2. The proposed code amendments would not adversely affect the public health, safety, or welfare; and 3. The Planning Commission, following notice thereof as required by RCW 35A.63.070, held a public hearing on the proposed amendments and has considered the testimony, written comments, and material from the public by and through said hearing. Section 2. Conclusions. Pursuant to FWCC Section 22-216, and based upon the Findings set forth in Section 1, the Federal Way City Council makes the following Conclusions of Law with respect to the decisional criteria necessary for the adoption of the proposal: 1. The proposal is consistent with the City of Federal Way Comprehensive Plan (FWCP) purposes, goals, and polices: FWCP Pg VII-1 FWCP Pg VII-1 FWCP CCG5 "Create an identifiable downtown that is the social and economic focus of the City." "Establishment of an urban center that is a vibrant, unique and attractive place to work." "Encourage a mix of compatible uses to maintain a lively, attractive, and safe place to live, work and visit." ORD # , PAGE 4 2. The proposal bears a substantial relationship to the public health, safety, and welfare. 3. Zoning and text amendment criteria under FWCC Section 22-523 are met. Section 3. Amendment. The FWCC, Chapter 22-1, Definitions, is amended and FWCC, Chapter 22, Nonconformance, is amended by adding a new Section 22-338.2, as set forth in the attached Exhibit A, and Chapter 22, Zoning, Sections 22-794 and 22-806 are amended as set forth in the attached Exhibit B. Section 4. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. Section 5. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 6. Effective Date, This ordinance shall be effective five (5) days after passage and publication as provided by law. PASSED by the City Council of the City of Federal Way this day of 1999. CITY OF FEDERAL WAY MAYOR, RON GINTZ ORD # . PAGE 5 ATTEST; CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATrORNEY, LONDI K. LINDELL FILED WITH TI-[E CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTWE DATE: ORDINANCE NO: K:\ORDINXADULT RET ()RD # · PAGE 6 EXHIBIT A Chapter 22 of the Federal Way City Code is hereby amended as follows. A. Sec. 22-1, Definitions, of Chapter 22 is amended as follows: Adult entertainment~ activity, retail, or use shall mean all of the following: Adult theater shall mean a building or enclosure or any portion thereof used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified--sexual activities" or "specified anatomical areas" (defined as follows below) for observation by patrons therein and which excludes minors by virtue of age. /"tN ~,z..,/ (-3-) (2) Adult caoa;'c, entertainment shall mean a cabaret, nightclub or other establishment which features go-go dancers, exotic dancers, strippers, male or female impersonators, similar entertainers or attendants, who are so clothed or dressed as to emphasize "specified anatomical areas" and/or whose performances or other activities include or mimic "specified sexual activities" (defined below) and which establishment excludes minors by virtue of age, and shall mean any of the adult entertainment establishments as defined in section 9-71(A) and (B) of the FWCC. 30_) Panarama andpeepshow shall mean as defined in section 9-71 (I) and (J) of the FWCC. Adult retail shall mean a retail establishment which, for money or any other form of consideration, either: Has as one of its principal purposes to sell, exchange, rent, loan, trade, transfer, and/or provide for viewing, off the premises, any adult oriented merchandise; or, Ce b. Provides, as its substantial stock in trade, for the sale, exchange, rental, loan, trade. transfer, and/or for viewing or use, off the premises, any adult oriented merchandise. Adult oriented merchandise shall mean any goods, products, commodities, or other wares~ including but not limited to, videos, CD Rom's, DVD's, magazines, books, pamphlets posters, cards, periodicals, or non-clothing novelties which depict, describe, or simulate specified anatomical areas or specified sexual activities (defined below). Specified anatomical areas shall mean the following: a~ Less than completely and opaquely covered human genitals, alltl~, pubic region, buttock, or female breast below a point immediately above the top of the areola; or b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Specified sexual activities shall mean any of the following: a. Human genitals in a state of sexual stimulation or arousal; Acts of human masturbation, sexual intercourse, sodomy, oral copulation, or bestiality; o__[ c~ Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts, whether clothed, of oneself or of one person by another; or ~ Excreto~_ functi0ns as part of orin c0nnection With:: any of ~he activitiesi~s!~t fo~hiin thiS::Se¢fion~ Activities and uses defined as adult entertainment~ activity, retail, or use are only permitted in the zone where that term is specifically listed as an allowable use and only in conformance to the requirements as stated for that use. The Special Regulations and Notes of Use Zone Chart (CC-C) (Sec. 22-794, Adult entertainment, etc,) of Chapter 22 are amended as shown in Exhibit B. The Special Regulations and Notes of Use Zone Chart (CC-F) (Sec. 22-806, Adult entertainment, etc,) of Chapter 22 are amended as shown in Exhibit B. D. The following section shall be added to Chapter 22: Sec. 22-338.2. Nonconforming adult entertainment, activity, retail, or use. Any adult entertainment, activity, use, or retail use located within the city limits on the effective date of this code. which are either made nonconforming by this code or whichare existinE nonCOnforming us.e.~, shall be terminated within one (1) year: provided, however, that such termination date may be extended upon the approval of an application filed with the city's Community Development Director within 120 days of the effective date of this code provision requesting an extension to such one (1) year amortization period. The director's decision on whether or not to approve any extension period and the length of such period shall be based upon the applicant clearly demonstrating extreme economic hardship based upon an irreversible financial investment or.commitlnen.t made prior to February 1,. 1999, which precludes reasonable alternative uses of the subject property. MEETING DATE: April 20, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: 3/31/99 Memorandum to the 4/5/99 meeting of the Land Use & ....................................................... ............................................................................................................................................ SUMMARY/BACKGROUND: The attached memorandum provides Councilmembers with detail on the current status of the grant applications submitted by Public Works Department staff, the funding received to- CITY COUNCIL COMMITTEE RECOMMENDATION: At its April 5th meeting, the Land Use and Transportation Committee forwarded the its recommended approval of the following to the April 20th City Council meeting: 1. Acceptance of the progress update on the grant application process; and 2. Approved of three new grant submittals for Regional and Countywide TEA21 funding of the SR 99, th th .................... ................................................................................................. CITY MANAGERRECOMMENDATION: [~'~ d} .... .~,.~_, ,.e,-.~;,.l~.,~--~k.-~.~ ............................................................................................................................................................. .~ ............................ L~,~,4...V..~5:..5.~..~..q~.~ ........................ APPROVED FOR INCLUSION IN COUNCIL PACKET: (...£!)i~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION k:\council\agdbills\ 1999\grantap3 .wpd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # CITY OF~ DATE: TO: FROM: SUBJECT: March 31, 1999 Phil Watkins, Chair Land Usc and Transportation Committee Cary M. Roe, Public Works Director ~ Update on 1999 Grant Applications for Transportation hnprovement Projects Background In November, 1998, Public Works staff presented to both the Land Use/Transportation Committee and full City Council, a list of transportation improvement projects with potential grant funding sources, and estimated City match requirements. This memorandum provides Council members with the current status of the grant applications submitted, the funding received to date, and outlines three new proposed grant submittals. As in November, the amounts shown for the City's match are conservative estimates and may fluctuate based on each project's statewide competitiveness. Development impact fees collected for these projects are included in the amounts shown for the City's match. SR 99: S 312 Street - S 324th Street Add HO V lanes O'ight of way, construction) ,, $6.67 million bt Federal TEA21 and State Transportation Improvement Acct (TIA) funding awardec~ New - Public Works staff is currently preparing two new grant applications for submittal on April 12, 1999for Regional TEA21, and itt May, 1999for Cot,tO, wide TEA21funding (No dollar amo~mt for this application is listed below as program details and requirements are not )'et available to agencies) Statewide Federal Surface Transportation Program and State rl'ransportation Improvement Account Grant Application to Regional TEA21 City Match (20%) $ 6,670,000.00 $ 1.500,000.00 $ 1.000.000.00 $ 9.170,000.00 BPA Trail Phase III Multimodal trail./'rom Campus Drive to SW 356th Street (right of ~vay, constructio~O · No statewide TE~421fttttdittg received; New- Pttblic Works staff is currently preparing a grattt application fi~r Regiottal TEA21 fttttding dtte April 12, 1999 Regional TEA 21 (86.5%) City Match (13.5%) $629,775.00 $ 98.289.00 $728,064.00 SR 99 (~ S 330th Street Sig, nalization, pedestrian improvements (constrttction) Project Selectio~t process will be complete ott April 9, 1999 Federal Hazard Elimination (49.3%) State Pedestrian Facilities Program (already obtained) City Match (20%) $ 160,000.00 $ 100,000.00 $ 65,O0O.00 $ 325,000.00 S 288th Street (~ SR 99 Add left-turn lanes (design, right qf w~v, constrt~ction) No grant funding awarded State Urban Arterial Trust Account (80%) City Match (20%) $ 892,200.00 $ 223.100.00 $1,115,300.00 S 312th Street ~ 14th Avenue S Signalization (design, constructio~O ~ No gratttfttnding awarded State Pedestrian Facilities Program (80%) City Match (20%) $ 100,000.00 $ 25.000.00 $ 125.000.00 S 336th Street ~ Weyerhaeuser Way S Signalization or Roundabout (design, construction) Project ,$'election process will be complete oli April 9, 1999 Federal l ta×ard Elimination (46.2%) Weyerhaeuser Contribution (26.9%) City Match (26.9%) 300,000.00 174,350.00 174.350.00 $ 648,700.00 Funding Totals Federal Grants - TEA2 l State Grants Weyerhaeuser Contribution City Match $9.259,775.00 $ 1.092,200.00 $ 174,350.00 $1.585,739.00 $12.112,064.00 Recommendation Public Works stall' requests the Committee accept the progress update on the grant application process; approve of the three new grant submittals for Regional and Countywide TEA21 funding of the SR99. S 312"' to S324th Street and BPA Trail Phase III projects; and forward the recommendation to the April 20, 1999 City Council meeting for consideration. CMR\KM: g cc: Public Works Managers C. Roe Working File k:',lutc',1999' grantap3 x~pd Department Grant Files Day File MEETING DATE: April 20, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT' Nautilus #2 Nei hborhood Traffic Safe Pro'ect .............................. · . .............................................. g ........................................................ ~ .......... !J. ......................................... ................................................................ CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ SUMMARY/BACKGROUND: Residents in the vicinity of 4th Avenue S and S 304th Street requested the installation of all-way stops on 4th Avenue S at S 304th Street and S 304th Place, based on concerns of high traffic speeds and cut-through traffic along that street. A traffic study conducted by staff in September 1998 indicated that the subject location would receive 2.0 points for traffic volume, 1.5 points for traffic speed, and 0 points for accident experience. Therefore, the total number of points is 3.5, which meets the 3.0 point minimum to qualify for all-way stop installation. In a neighborhood meeting staff conducted on January 14, 1999, after a discussion of traffic calming alternatives, residents requested the installation of three speed humps at a maximum spacing of 600 feet to be effective in reducing speed and cut-through traffic. Staff sent ballots to property owners and occupants within 600 feet of the proposed locations. One of the installation criteria requires a 50% majority of the adjusted base. Based on the above table, only Location 2 (between S 304th Place and S 305th Street) met the balloting criteria. CITY COUNCIL COMMITTEE RECOMMENDATION: Install one speed hump on 4th Avenue S between S 304~h Place and S 305th Street. CITY MANAGER RECOMMENDATION: /~ 1~'~'' ..... '~ .... '~ · .... ............................................................................................................................ j.~.~.;..!;::.~:~:.,.~.2~ ........................................ ... APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERKT OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION k :\council\agdbills\ 1999\covercc COUNCIL BILL it 1st Reading Enactment Reading ORDINANCE it RESOLUTION # Item 5A CITY OF FEDERAL WAY CITY COUNCIL PARKS, RECREATION, PUBLIC SAFETY, AND HUMAN SERVICES COMMITTEE Date: From: Subject: April 5, 1999 Rick Perez, Traffic Engineer f~ Nautilus #2 Neighborhood Traffic Safety Project Background: Residents in the vicinity of 4th Avenue S and S 304th Street requested the installation of all-way stops on 4th Avenue S at S 304th Street and S 304th Place, based on concerns of high traffic speeds and cut- through traffic along that street. Currently adopted installation criteria are based on a point system as follows: Severity Points Accidents per Year Average Daily Traffic 85th Percentile Speed (5-year history) (two-way total) (mph) 0.5 0.3 - 0.5 500- 1100 26- 29 1.0 0.5 - 0.7 1101 - 1700 29.1 - 32 1.5 0.7- 0.9 1701 - 2300 32.1 - 35 2.0 0.9- 1.1 2301 - 2900 35.1 - 38 2.5 1.1 ~ 1.3 2901 - 3500 38.1 - 41 3.0 More than 1.3 More than 3500 More than 41 Installation criteria are met if the total number of severity points is equal to or greater than 3.0. A traffic study conducted by staff in September 1998 indicated that the subject location would receive 2.0 points for traffic volume, 1.5 points for traffic speed, and 0 points for accident experience. Therefore. the total number of points is 3.5, which meets the 3.0 point minimum to qualify for all-way stop installation. In a neighborhood meeting stall'conducted on January 14. 1999, after a discussion of traffic calming alternatives, residents requested the installation of three speed humps at a maximum spacing of 600 feet to be effective in reducing speed and cut-through traffic. Staff sent ballots to property owners and occupants within 600 feet of the proposed locations. The following table summarizes the ballot results: Sent 108 114 82 Undeliverable 3 6 2 Adjusted Base 105 108 80 Returned 52 (49%) 61 (56%) 39 (49%) Yes Votes 44 (42%) 55 (51%) 32 (40%) One of the installation criteria requires a 50% majority of the adjusted base. Based on the above table, only Location 2 met the balloting criteria. Staff has found little evidence to suggest that the installation of only one speed hump would have a significant effect on vehicle speeds. Nonetheless, the data suggests that traffic volumes and speeds are a significant issue for these residents and the significant efforts taken by the residents to develop support for the proposal should be recognized. Therefore, staff recommends the installation of a speed hump at Location #2 on 4th Avenue S between S 304th Place and S 305th Street. This installation will be used to determine the suitability of single speed hump installations in the future. Committee Recommendation: Staffrequests a recommendation of approval to City Council on the meeting scheduled for April 20, 1999, to install one speed hump at Location #2 on 4th Avenue S between S 304th Place and S 305th Street. APPROVAL OF COMMITTEE REPORT: Committee Chair Committee Member ~-'/Committge~ember K:\prpshsh\naut2sh.wpd MEETING DATE: April 20, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: 4/1/99 Memorandum to the 4/5/99 meeting of the Land Use & ........................................................ .m..!.t..t..e..e. ............................................................................................................................ ................ SUMMARY/BACKGROUND: On March 29, 1999, the City received four (4) bids for the 14,000 gvw cab- over Flat Bed Dump Truck, with the low-bidder being Gilchrist Chevrolet in the amount of $26,942.82 (see ............................................................................................................................................... CITY COUNCIL COMMITTEE RECOMMENDATION: Due to the delay in rebidding the vehicle, staff requested and received authorization to present the bids to the earlier April 5th meeting of the Land Use & Transportation Committee, rather than the later April 27th meeting of the Finance & Economic Development Committee. The Committee approved of, and forwarded the staff recommendation to the April 20, 1999 meeting of the City Council for award of the bid to the lowest responsive, responsible bidder, Gilchrist : .................................................................................................................................................................. CITY MANAGER RECOMMENDATION: t~ ~,./,,-*,.-~ L':, .... ;ik, ,,: ~.~ ~., ....... ~c~ r,~,,~.L /~:; ...... ' ' ~ '~ ~..] ............................................. : ......................................................... l..i,~..~x..t,. !..2. .......... :..~.....k:,, ....... APPROVED FOR INCLUSION IN COUNCIL PACKET: c/l'~)~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION k:\council\agdbills\ 1999\swmtruck.wpd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: April 1, 1999 TO: FROM: Phil Watkins, Chair Land Use/Transportation Committee Jeff Pratt, Surface Water Manager~l New 14,000 GVW Cab over Flat Bed Dump Truck Purchase Background: Due to lost time in rebidding this vehicle staff has requested and received authorization to bring this item to the Land Use/Transportation Committee rather than the Finance/Economic Development/Regional Affairs Committee thereby accelerating the purchase date. During the budget cycle for the 1999/2000 Biennial Budget, Council appropriated $29,500.00 for use in the purchase of a flat bed dump truck and truck bed hoist. On March 29, 1999, the City received the following four bids: Vendor Harris Ford Isuzu, Lynnwood, WA Gilchrist Chevrolet, Tacoma, WA Husky International, Seattle, WA Sea-Tac Truck Center, Seattle, WA Bid Amount Not Responsive $26,942.82 $30,717.51 $38.731.43 The low-bidder is Gilchrist Chevrolet, with a total bid amount of $26,942.82. Recommendation: Staff recommends award of the bid to the lowest responsive and responsible bidder, Gilchrist Chevrolet, in the amount of $26,942.82. Staff requests that the committee forward this item to the City Council for their consideration during the April 20, 1999 meeting. JP:jp K:\LUTC\ 1999\SWMTRUCK. LUT CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Indoor Billboard Inc., Appeal of Hearing Examiner Denial of Side Yard Variances CATEGORY: BUDGET IMPACT: CONSENT ..... ORDINANCE BUSINESS X HEARING FYI RESOLUTION X STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ SUMMARY/BACKGROUND: Indoor Billboard, Inc., sought a variance from two 20 foot side yard setbacks. The Community Development Services Department recommended denial to the Hearing Examiner. The Hearing Examiner, after a public hearing, rendered a decision to deny the variances. Indoor Billboard, Inc., appealed the Hearing Examiner's decision to Council. The Appellant (Indoor Billboard/Carolyn Lake) contests the Findings of Fact and Conclusions of Law of the Hearing Examiner's decision denying the variance. The City Council is directed by FWCC Section 22-451 & 455 to hold a closed record appeal hearing and to take one of two actions: Action One: If the council determines that the disputed findings of fact and conclusions are the correct findings of fact and conclusions, the council shall affirm the decision. Action Two: If the council determines that the disputed findings of fact and conclusions are not correct and that correct findings of fact and conclusions do not support the decision of the hearing examiner, the council shall modify or reverse the decision. Attached is the written record for the Indoor Billboard Variance Application. The last section is the staff report on the letter of appeal. CITY COUNCIL COMMITTEE RECOMMENDATION: N/A CITY MANAGER RECOMMENDATION: Affirm the decision of the Hearing Examiner APPROVED FOR INCLUSION IN COUNCIL,..~.._ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED 'TJ~I.~D/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # I :\ 980010CC.AGD CITY OF FEDERAL WAY DEPARTMENT OF COMMUNITY DEVELOPMENT SERVICES VARIANCE REQUEST APPEAL INDOOR BILLBOARD NW Federal Way File No. UP498-0010 April 9, 1999 BACKGROUND The variance request is for a proposed 15,380 square foot building to be located on a vacant lot 10 feet from a side yard property line, and to locate a dumpster five feet from a side yard property line. (The zoning code requires a 20 foot side yard setback in the BP Business Park zone.) The property is 1.08 acres in size and is located at 1916 South 341st Street (Lot 6, Kit's Comer Business Park, see Exhibit 1). The application date chronology is presented as follows: Variance Preapplication Review Variance Application Filed Variance Application Public Hearing Variance Public Hearing Continued to Hearing Examiner's Decision Issued Appeal Filed City Council Public Hearing March 5, 1998 August 10, 1998 October 27, 1998 December 8, 1998 January 15, 1999 January 29, 1999 April 20, 1999 II. HEARING EXAMINER APPEAL PROCESS A summary of the appeal process is presented as follows: A. The City Council holds a closed record appeal hearing, as defined in RCW 36.70B.020(1). B. The hearings of the City Council are open to the public. C. The scope of the appeal is limited to the specific errors raised or factual findings disputed in the letter of appeal. The City Council shall consider only the following: 1. The information received from the Director of Community Development Services pursuant to Federal Way City Code (FWCC) Section 22-450. 2. The record before the Hearing Examiner, including exhibits and evidence admitted by the Hearing Examiner. o The appeal argument by the appellant, and any person who commented to, or testified before, the Hearing Examiner, or other persons, provided that appeal argument shall address only the issues raised by the letter of appeal and evidence, if any, allowed under FWCC Section 22-451 (c)(4). 4. Any new evidence that was not presented to, or considered by the Hearing Examiner, but only if that evidence: Relates to the validity of the Hearing Examiner's decision at the time it was made and the party offering the new evidence did not know and was under no duty to discover, or could not reasonably have discovered, the evidence until after the Hearing Examiner's decision; or b. The Hearing Examiner improperly excluded, or omitted, the evidence from the record. Do The person filing the appeal has the responsibility of convincing the City Council, by a preponderance of the evidence, that the Hearing Examiner's decision contains an error of law, or that its findings of fact or conclusions are incorrect. E After considering the matter as provided in FWCC Section 22-451 (c), the City Council shall, by motion approved by a majority vote of members present, take one of the following actions: If the City Council determines that the disputed findings of fact and conclusions are the correct findings of fact and conclusions, the City Council shall affirm the decision. ° If the City Council determines that the disputed findings of fact and conclusions are not correct and that correct findings of fact and conclusions do not support the decision of the Hearing Examiner, the City Council shall modify and reverse the decision. Indoor Billboard Variance Appeal Page 2 INDOOR BILLBOARD VARIANCE APPEAL REPORT TO THE CITY COUNCIL PREPARED BY THE DEPARTMENT OF COMMUNITY SERVICES April 9, 1999 TABLE OF CONTENTS I. STAFF REPORT FOR THE HEARING EXAMINER I1. HEARING EXAMINER WRITTEN DECISION III. WRITTEN COMMENTS SUBMITTED TO H.E. IV. H.E. PUBLIC HEARING TRANSCRIPT V. LETTER OF APPEAL VI. WRITTEN COMMENTS RECEIVED VII. STAFF ANALYSIS OF ALLEGED ERRORS I. STAFF REPORT FOR THE HEARING EXAMINER CITY OF FEDERAL WAY DEPARTMENT OF COMMUNITY DEVELOPMENT S TA~FF EVALUATION FOR A VARIANCE REQUEST INDOOR BILLBOARD N.W. Federal Way File No. UP498-0010 I. RECOMMENDATION Recommendation by staff is for denial for the reasons stated in this report. II. SUMMARY OF PROPOSED VARIANCE REOUEST The applicant is proposing to build a 15,380 square foot building and has requested two side yard variances: 1)to reduce a building setback from 20 feet to 10 feet, and, 2) to reduce a dumpster setback from 20 feet to 5 feet. This proposal is delineated on a site development plan received August 10, 1998. (Exhibit A 1-6) The applicant's building site is located in a BP (Business Park) zoning district. Pursuant to FWCC Sec. 22-864, minimum structural setbacks for the warehouse and wholesale distribution facilities are: 25 to 50 feet for the front yard and 20 feet for the side and rear yards. III. GENERAL INFORMATION Location: 1916 South 341st Place, Federal Way Applicant: Allan F. Poe Poe Engineering 400 West Gowe Street, Suite 310 Kent, Washington 98032 Purchaser Jim Shulevitz Indoor Billboard, Inc. P.O. Box 17555 Portland, Or. 97217 Zoning: BP - Business Park Comprehensive Plan Designation: Business Park Plat: Plat of Kit's Corner Business Park, Lot 6 S-T-R: NE 21-21-4 Parcel #390380-0060 Sewage Disposal: Lakehaven Utility District Wa~er Supply: Lakehaven Utility District Fire District: King County Fire District #39 IV. HISTORY AND BACKGROUND The applicant, Poe Engineering, is agent for Indoor Billboard. Indoor Billboard is interested in purchasing the subject property from Sequitur Fortuna, if the variance is approved by the City. The applicant has submitted a proposed site development plan received August 10, 1998. This plan has been reviewed respecting the subject variances only. The applicant, if the variances are approved as requested, will then resubmit a site development plan for building, parking, landscaping and vehicle access. The environmental impacts will also be addressed at that time. V. THRESHOLD DETERMINATION OF ENVIRONMENTAL SIGNIFICANCE Pursuant to the State Environmental Policy Act (SEPA), RCW 43.21C and WAC 197-11-800(6) (b), a land use decision for a variance is exempt from environmental review. VI. AGENCIES ~ONTAQTED BY FEDERAL WAY As part of the variance request review by Federal Way staff, site visits were conducted and the proposal was circulated to the Federal Way Community Development Review Committee (CDRC) consisting of the following agencies and City departments: Federal Way Public Works Division. Federal Way Building Division. King County Fire District #39 Lakehaven Utility District The above agencies and City departments had no comments on the variance'. Comments received from the Preapplication review responded to the proposed warehouse and distribution facility as represented on a proposed site development plan. VII. NEIGHBORHOOD CHAPJkCTERISTICS The subject Lot 6 is located in the northeasterly corner of the Plat of Kit's Corner Business Park. Urban utilities and services are available. Current uses of the surrounding area include the following: Subject Site: North: South: East: West: Vacant (low bushes & a few trees) Developed lot with buildings Developed lot with a building (1925 S. 341st Pl. Intellpas/Insurpas Professional Education Center Fenced open storage yard Developed lot with a building (1908 S. 3415t Place, Mixed businesses) (Exhibit B) VIII.HEARING EXAMINER VARIANCE CRITERIA REOUIRED BY FWCC SECTION 22-198 The applicant has requested a variance for two side yards of Lot 6 to allow a proposed 15,380 square foot building to be 'located 10 feet from the west property line, and, to allow a refuse dumpster to be located five feet from the east property line. A 20 foot side yard is required in the BP (Business Park) zone as contained in FWCC Sections 22-864. (Exhibit C- 1,2) The Hearing Examiner may approve the variance request only if all four variance decisional criteria of FWCC Section 22-198 are met. The applicant has provided a letter which discusses the applicant's position on the project's applicability to variance decisional criteria (Exhibit A 2-3). The criteria and the City response follows: "The variance request will not constitute a grant of special privilege inconsistent with the l~itations upon uses of other properties in the vicinity and zone in which the subject property is located." Staff Response: The applicant requests a variance from the 20 foot side yard building setback and dumpster setback as specified in the BP (Bus~ness Park) zone to construct a 15,380 square foot warehouse and distribution building on a 1.08 acre site and construct a dumpster inclosure five feet from a property line. It appears from the application that the building and dumpster to be placed on the lot will comply with all other aspects of the FWCC Section 22-864, including the building height. Otherwise, the lot in question is subject to the same limitations as other lots in the surrounding BP zone. Granting ~he variance will constitute a grant of special privilege inconsistent with the limitations upon uses of other properties in the vicinity and zone. me For example, the lot directly south across the street (1925 S. 341st Place)was approved by the City in 1995(SPR95-0002) and is similar in size and width, and, has an existing 13,825 square foot two story building in compliance with all yard setbacks. See Exhibit D) Also, Lot 7 located to the west of the subject site has been developed with a one story building meeting the 20 foot sideyard setbacks. "That the variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and zone in which the subject property is located." Staff Response: The topography of the site slopes from the north to the south (four foot drop in 315 feet for a 1% slope) and from the west to the east (five foot drop in 150 feet for a 3% slope. When the site is developed, the grade probably will be adjusted to lessen the slope of the lot. The variance is not necessary due to special circumstances relating to topography. The applicant is stating that the size and shape of the lot ~is undersized for the zone (1.5 acre minimum now required versus the 1.08 acre existing lot size). Due to the narrow, rectangular configuration of the lot, it is impossible to achieve reasonable lot coverage (30%+) without placing the building against a sideyard matching building configuration to the property." (Exhibit A-2) However, existing surrounding building development of property in the area appears to meet required building yard setbacks. The size and shape of the subject Lot 6 is not unusual and is consistent with the size and shape of existing lots to the west, south and east. The variance is not necessary due to size and shape of the lot based on surrounding existing buildings meeting side yard setbacks. ~That granting the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located". Staff Response: The applicant states: "The proposed use of the property will be consistent with the zoning. The granting of the variance will only allow a reasonable size building on e the site (33% lot coverage) and allow the typical component of a warehouse building to be provided. No detrimental or injurious impacts are foreseen." (Exhibit A-3) The BP zone does not specify a' maximum lot coverage as lot coverage is determined by other development requirements, i.e., required buffers, parking lot landscaping, surface water facilities, etc. Therefore, the applicant's statement is correct. However, his statement could also be true for a building meeting the required yard setbacks. The granting of the requested variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located because the proposed building has adequate separation between existing buildings on adjacent properties. "That the SPecial circumstances of the subject property are not the result of the actions of the owner of the subject property." Staff Response: The applicant states: "The lot size and geometry were established when Kit's Corner Business Park was created in 1979. The availability of property, zoning, surrounding uses and freeway access have created the desire for this owner to locate their new facility on this site." (Exhibit A-3) The applicant is not constrained by topography or site size, shape or other existing conditions characteristic of the subject property. The special circumstances are the result of the applicant proposing to put a building on the lot larger than the building footprint allowed by the required yard setbacks set for the BP zone. For these reasons, the special circumstances of the subject property are the result of the actions of the applicant and not the result of the platting. The applicant has submitted a copy of'a letter dated May 9, 1995 regarding: "Setback Determination for a Proposed building to be located at 1804 South 341st Place", (Exhibit A-4,5) in support for granting the variance in question. This letter describes a prior zoning of MP (Manufacturing Park) for Lot 8 of Kit's Corner Business Park and authorizes reduced yard setbacks based on the lot's small size (27,486 sq.ft.). (Exhibit E) Since 1995, the zoning has changed to BP (Business Park) and the minimum lot size and yard setbacks have been kept IX. the same as the former MP zone. So, why should this letter not be used for justification for granting a variance for the subject Lot 6? It is because said Lot 6 (47,242 sq.ft.) is approximately 41% larger than the size of Lot 8 and has a different shape. HEARING EXAMINER PROCESS IV DECISIONAL CRITERIA The Hearing Examiner may, after consideration of the entire matter on record, issue a decision with or without conditions, or a denial pursuant to the FWCC. FWCC section 22-445(c) contains five decisional criteria which are used by the Hearing Examiner during Process IV review. The decisional criteria and staff response follow: 1. "It is consistent with the Comprehensive Plan." Staff Response: The City of Federal Way Comprehensive plan contains several elements related to Land Use, Transportation, and the Natural Environment, to help guide the orderly growth and development of the City. The Comprehensive Plan along with other documents is used as a basis for implementing regulations and other City programs such as the State Environmental Policy Act (SEPA). The subject site is designated as "Business Park" by the Federal Way Comprehensive Plan (FWCP), and zoned BP (Business Park). Applicable policies in the 1995 FWCP Land Use as follows: (City of Federal Way Comprehensive Plan, page II-15) Business Park (Land Use Intent): The Business Park designation is a new designation that substantially encompasses the uses found in the former Manufacturing Park zoning designation where large undeveloped and underdeveloped parcels, having convenient access to Interstate 5 and Highway 18, provide a natural location for business park development. The advent of the Business Park designation is intended to capture the growing demand for higher quality, mixed-use business parks which permit a mixture of light manufacturing, warehouse/distribution, office, and limited retail uses to serve the immediate needs in the area. Revisions to design and performance standards will address site development, lot size, setbacks, and modulation. GOAJ~: Develop a quality business park area that supports surrounding commercial areas. Policy LUP35: Encourage quality, mixed-use development for office, manufacturing, and distribution centers. Staff Comment: The above land use intent, goal, and policy support the existing BP zoning standards and requirements for building yard setbacks, landscaping, and building location and design. The emphasis is on "quality". Granting variances to the required yard setbacks would, in a cumulative effect and appearance, adversely impact the development quality specified in this zone. Once a precedent is set for an area, it would be difficult for the City to not grant additional variances upon request provided these requests were similar in nature. 2. "It is consistent with all applicable provisions of this Chapter and all other applicable laws." Staff Response: Site development must comply with provisions of the Federal Way City Code, and all other applicable development codes and regulations. ~tny and all proposed buildings must comply with the Business Park zoning standards. Thus, existing buildings on surrounding lots of similar size and character have met applicable City Codes and the Comprehensive Plan. The variance request is not supported by existing topography, lot size, or lot shape. The one lot (Lot 8) where side yard variances were granted achninistratively, is much different in size and shape than the subject Lot 6, plus, the Comprehensive Plan and Zoning have changed since this approval was granted in 1995. The request has not met all four of the variance criteria contained in FWCC Section 22-198. 3. "It is consistent with the public health, safety and welfare." Staff Response: City Departments and other agencies offered no comments to the proposed variance, upon the August 10, 1998 site plan review of the proposal. However, granting this variance request would set a precedent and the potential cumulative effect of continued variances could undermine the overall land use intent and development goal of the Business Park Comprehensive Plan and Zoning designation. It would logically follow that this proposed variance would not be consistent with the public welfare. 4. "The streets and utilities in the area of the subject property are adequate to serve the anticipated d~m~nd from the proposa 1." Stmff Response: This criteria addresses the suitability of access to the property and the availability of public utilities and streets. The subject lot fronts on a dedicated and built public street and thus has adequate access. The site is served by all public utilities. As such, access and service are not issues with this application. 5."The proposed access to the subject property is at the optimal location and configuration for access." Staff Response: The 341st Place street access is not an issue with this variance request. X. CONCLUSIONS/RECOMMENDATION Conclusion: The criteria reviewed, existing development, topography, lot size and shape, goals and objectives of the 1995 Federal Way Comprehensive Plan, and the FWCC do not support the requested variance. Recommendation: It is recommended that the variance request be denied. Marion Hess, Senior Planner October 19, 1998 Attachments: Exhibit A (1-6) Exhibit B (1-4) Exhibit C (1-2) Exhibit D Master Application Existing Land Use & Zoning Map Zoning Code Section 22-864 Intellipass/Insurepass Site Plan i:980010v ECEIVED BY ':DEVELOPMENT DEPARTMENI ~V!J~"~, R LAND USE APPLICATION DEPARTMENT O~"~OMlVlUNITY DEVELOPMENT SERVICES AUG i0 1998 33530 F~t Way South, Federal Way, WA 98003 (253) 661-4000 - Fax (253) 66 I-4129' Project Name Name! of Applicant Applicant Address Date Phone wo%'-& - ,~,~,o,,..~, k,"~ k Legal Description Vroject Description Parcel Number(s) Type of Permit Required: Site Plaa Review Land Surface Modification Boundary Line Adjustment Binding Site Plan Short Subdivision Subdivision Shoreline Variance Conditional Use Use Process I Use Process II Use Process III Quasi-Judicial Rezone Variance Comp. Plan/Rezone Annexation Lot Line Elimination Pre-Application Meeting SEPA Only SEPA Notice Sign Checklist Mailed Board R R * R K * R R R R R R R R R R* R R R R R R R R * R R R R R * R R R R R R R = Required EXH!I IT A R PAGE t OF R * = O?tional by Ci~ POE Engineering, Inc. CIVIL & STRUCTURAL ENGINEERING/CONSULTING 400 WEST GOWE STREET, SUITE 310 KENT, WASHINGTON 98032 (206) 859-5121 · FAX (206) 859-5207 RECEIVED BY COMMUNITY DEVELOPMENT DEPARTMENT AUG 1 0 lg J8 VARIANCE REQUEST A variance is sought from the side yard building setback provisions of the BP (Business Park) Zone (specifically Section 22-864). Side yard setbacks of 20 feet are required for the zone. The variance is sought to allow a 5 foot side yard building setbacks to better correspond with the required 5 foot side yard landscaping requirement for the zone. The project building is proposed at 10 feet from the west property line with building modulations or facades intermittently projecting 2 feet into the setback as shown on the site plan. The lot is 150 feet in width and is also undersized for the zone (1.5 acre minimum now required versus the 1.08 acre existing lot size). Due to the narrow, rectangular configuration of the lot it is impossible to achieve reasonable lot coverage (30% +) without placing the building against a side yard and matching the building configuration to the property. The property to the West is developed with the building placed approximately 50 feet from the common property line, thus providing substantial building separation. Listed below is a written discussion of the required variance criteria as stated by the variance application handout. a) Granting of Special Privilege - The granting of this variance is not felt to constitute a special privilege. The site is undersized for the zone and the granting of the variance would be consistent with past decisions by the Director of Community Development Services. This area has recently been rezoned by the City from the MP (Manufacturing Park) Zone. The provisions of the former MP Zone allowed the building setbacks for undersized lots to be determine by the Director of Community Development Services. Attached as Exhibit "A" is a determination of reduced setbacks for Lot 8 of this Plat based upon a narrow undersized lot within the zone. b) Necessity of the Variance - EXHIBIT- ^ The variance is necessary due to several cp~~c~ ~ lot is undersized for the zone, thus the r.~,~_~.~e c,~, have a greater impact on the potential use of the property. Indoor Billboard Variance Page 2 of 2 The site is also a rectangular lot compounding the problems created by the side yard setbacks. The zoning of the property allows for warehouse and distribution, and several dock high doors are desired as a necessary component of the proposed use of the property. The variance is required to allow the property owner to develop their facility as shown, and allow for dock high access to one side of the building. c) Granting will not be Detrimental or Injurious - The proposed use of the property will be consistent with the zoning. The granting of the variance will only allow a reasonable size building on the site (33% lot coverage) and allow the typical components of a warehouse building to be provided. No detrimental or i~jurious impacts are foreseen. d) Special Circumstances are not the Result of the Owner - The lot size and geometry were established when the Kit's Corner Business Park was created in 1979. The availability of property, zoning, surrounding uses and freeway access have created the desire for this owner to locate their new facility on this site. EXHIBIT k PAGE ,3 OF (2O6) 661-4000 FEDERAL WAY, WA 98003-6210 May 9, 1995 Mr. Alan F. Poe Poe Engineering, Inc. 610 West Meeker Street, Suite 101 Kent, WA 98032 SETBACK DETERMINATION FOR PROPOSED 341ST BUILDING 1804 SOUTH 341ST PLACE, FEDERAL WAY Dear Mr. Poe: I am in receipt of a title packet, conceptual site plan drawing, and letters dated April 25, and May 5, 1995, requesting a decision on required yard setbacks pursuant to Federal Way City Code (FWCC) section 861, note 2. The above referenced code section contains criteria to administratively determine setback requirements for lots that are smaller than the minimum requirement. The minimum lot size for manufacturing uses in Manufacturing Park 0VIP) zones is five acres pursuant to FWCC section 22-861. This is considerable larger than your 28,000 square foot lot. However, FWCC section 22-861, note 2, also states: "..that this use may be developed and conducted on a lot of any size if a) the lot lines defining the lot were lawfully created prior to March 1, 1990; and b) the applicant has not owned any contiguous lot or lots since March 1, 1990. For development of less than 5 acres, the director of community development will determine the required yard, landscape and buffer and other similar dimensional requirements on a case by case basis, based on the size and location of the subject property and the nature and intensity of the proposed use and development of the subject property." Your letter states that the title report data establishes that Lot 8, plat of Kit's Comer Business Park, was created prior to the incorporation of the City of Federal Way and that your clients, the 341st Place Joint Venture Partners, are currently under contract with the Schindlers, who as the present owners, have not owned any contiguous lots since March 1, 1990. EXHIBIT A PAG E,..4 _OF Mr. Alan F. Poe May 9, 1995 Page 2 Based upon satisfaction of the stated criteria, the following required yard setbacks are established for Lot 8, plat of Kit's Comer Business Park: Front - Reduced from 50 feet to 20 feet, based on an increase from 10 to 20 feet of Type III landscaping. Side - Reduced from 20 feet to 10 feet, with 5 feet of Type III landscaping. Rear - Reduced from 20 feet to 10 feet, with 5 feet of Type III landscaping. Reduced setbacks are considered appropriate for proposed manufacturing and office uses on this parcel due to the constraint of the small lot size. Adequate building separation is maintained and the increase in buffer landscaping mitigates any adverse impacts of the setback reduction. This administrative decision on required yard setbacks for lot 8, plat of Kits Comer Business Park, does not approve nor imply approval of the site plan submitted with your letter. Should you have any questions, please contact Deb Barker, Associate Planner, at 661-4103. Sincerely, Gregor~c~D: ~lVlg. gfe, AICP Director of Community Development Services eric: redlined site plan with setbacks c: Deb Barker, Associate Planner pr~plfli~ rc~lk,~41 st pl.~t b~ck Itt EXHIBIT PAGE 5' OF LOCATED IN THE NW 1/4 OF SECTION 21, T21N, R4E, W.H. FEDERAL WAY, WASHINGTON 150.0' 14 ~16'~g' W INDOOR B]I,LBOARD VARIANCE IOR. ~-/r t/s (+) I x/'J- 12'/lc 1916 S 341st Place NEW BUILDING r I · ~.1~ I. I I 3l' 15 tl. Variance lc 5' CONC 5. 341ST H -8~ ~"~~ w PAGE:._. 6 OF S~even Electric ~ 3903800080 ~10.49047 )3800070 1908 BUILDING 1~16 INDOOR BILLBOARD S. 341ST ST. 3903800040l l~09 BROADCASTING 1925 Intelllpas/Insuq~as Profe~ional Educa~ 2121040051 EXISTING LAND USE MAP i 2121049082 OPEN STORAGE 21210490,56 2121046O48 2011 2025 F~I Rosendin Electric, WCHS, INC 61 LLOYD 34114 BADEN SPORTS ~2 41:~10 412~15 41~25 412 4~ 2121049OO7 2121 ~2 21210,4004,,5 2121040021 EXH! PAG OF § 22~64 FEDERAL WAY CITY CODE 1518.26 Supp. No. 18, Rev. EXHIBIT r__.. PAGE I. OF ,.' ) ZONING § 22-864 ..au o ~ ~ .. ~~ ~- .... 9~~ o '- ~ ~ -~9 ' '~ ~ ~ o ~DVJS ~0 ~D~ o . .'~ Supp. No. 18, Rev. ~.~ EXHIBIT PAGE_ z.~_Oi~ walks): 15,'LI*~, (35%} ~%) . (21%) ade School/ Jring I I F / // I /'' I ~vr~le t', / ,age e'lrl.. / / / qce ~'1'- fT. .......... -rf(e d S. 341 ST. PL. SITE PLAN e~'l'r EXHIBIT Antonio O'Ambfoslo · · · · · Archlfec! AIA 3712 E. Merce~ Wol~ Mincer Island. WA 980~ (206) 232-6923 ~.~F i I lx~qG COUNTY ASSESSOR'S 1VIAP ] i1'"~ ~ ,:~ ,.~o~ . 9 3~05~0. VOL. I1~/~$~ ~oqo 0 -16 -39 w EXHI'BI~ PAGE A The following pages were used as transpariencies to present the preceeding staff report to the Hearing Examiner on 12/8/98 INDOOR BILLBOARD VARIANCE KEY DATES: FIRST COMP PLAN ADOPTED SECOND COMP LAN ADOPTED FEB. 27, 1990 NOV. 21, 1995 FIRST ZONING CODE & MAP ADOPTED BP ZONING CODE AMENDMENT ADOPTED FEB. 27, 1990 JUL. 2, 1996 ADMINISTRATIVE SETBACK VARIANCE DETERMINATION FOR 1804 S. 341ST PLACE (LOT 8, KIT'S CORNER BUSINESS PARK) LETTER ISSUED MAY 9, 1995 C:980010 INDOOR BILLBOARD VARIANCE CRITERIA: 1: VARIANCE WILL NOT CONSTITUTE A GRANT OF A SPECIAL PRIVILEGE INCONSISTENT WITH THE LIMITATIONS UPON USES OF OTHER PROPERTIES IN THE VICINITY AND ZONE---. 2. THAT THE VARIANCE ES .NECESSARY BECAUSE OF SPECIAL CIRCUMSTANCES RELATING TO THE SIZE, SHAPE, TOPOGRAPHY, LOCATION OR SURROUNDINGS OF THE SUBJECT PROPERTY---. 3. THAT GRANTING THE VARIANCE WILL NOT BE MATERIALLY DETRIMENTAL TO ~ PUBLIC WELFARE OR INJURIOUS TO THE PROPERTY OR IMPROVEMENTS IN THE VICINITY AND ZONE IN WHICH THE SUBJECT PROPERTY IS LOCATED. 4. THAT THE SPECIAL CIRCUMSTANCES OF THE SUBJECT PROPERTY ARE NOT THE RESULT OF THE ACTIONS OF THE OWNER OR THE SUBJECT PROPERTY. PROCESS IV DECISIONAL CRITERIA; 1. IT IS CONSISTENT WITH THE COMPREHENSIVE PLAN. 2. IT IS CONSISTENT WITH ALL APPLICABLE PROV/SIONS OF THIS CHAPTER AND ALL OTHER APPLICABLE LAWS. 3. IT IS CONSISTENT WITH THE PUBLIC HEALTH, SAFETY AND WELFARE. 4. THE STREETS AND UTILITIES IN THE AREA OF THE SUBJECT PROPERTY ARE ADEQUATE TO SERVE THE ANTIC/PATED DEMAND FROM THE PROPOSAL. 5. THE PROPOSED ACCESS TO THE SUBJECT PROPERTY IS AT THE OPTIMAL LOCATION AND CONFIGURATION FOR ACCESS. 1:980010 I1. HEARING EXAMINER WRITTEN DECISION CITY OF~ ¢©P¥ (253) 661-4000 FEDERAL WAY, WA 98003-6210 January 15, 1999 Alan Poe Poe Engineering 400 West Gowe Street, Suite 310 Kent, Washington 98032 RE: VARIANCE REOUEST OF INDOOR BILLBOARD NW PROCESS IV Dear Applicant: Enclosed please find the Report and Decision relating to the above- entitled case. Appeal Rights are attached for your information. Very truly yours, STEPHEN K. CAUSSEAUX, HEARING EXAMINER SKC/ca cc: Ail parties of record City of Federal Way CITY OF FEDERAL WAY OFFICE OF THE HEARING EXAMINER IN THE MATTER OF: INDOOR BILLBOARD N.W. VARIANCE REQUEST PROCESS IV FWHE# 98-12 I. SUMMARY OF APPLICATION The applicant is proposing to build a 15,380 square foot building and has requested two side yard variances: 1) to reduce a building setback from 20 feet to 10 feet, and 2) to reduce a dumpster setback from 20 feet to 5 feet. This proposal is delineated on a site development plan received August 10, 1998. The applicant's building site is located in a BP (Business Park) zoning district. Pursuan to FWCC Sec. 22-864, minimum structural setbacks for the warehouse and wholesale distribution facilities are: 25 to 50 feet for the front yard and 20 feet for the side and rear yards. II. PROCEDURAL INFORMATION Hearing Date: Decision Date: December 8, 1998 January 15, 1999 At the heating the following presented testimony and evidence: 1. Marion Hess, City of Federal Way, Temp Senior Planner Carolyn Lake, attomey for applicant, Two Union Square, 601 Union Street, Seattle, WA 98101 o Alan Poe, Poe Engineering, applicant, 400 W. Gowe Street, Suite 310, Kent, WA 98032 4. Greg Fewins, City of Federal Way, Senior Planner At the hearing the following exhibits were admitted as part of the official record of these proceedings: 1. Staff Report with all attachments INDOOR BILLBOARD January 15, 1999 Page - 2 2. Carolyn Lake's memorandum with attachments 3. Site Plan 4. Letter from Eric Swanson to Jim Shulevitz 5. Memorandum to Examiner from City of Federal (response) III. FINDINGS The Heating Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. The Community Development Staff Report sets forth general findings, applicable policies and provisions in this matter and is hereby marked as Exhibit "1" and incorporated in-its entirety by this reference. All appropriate notices were delivered in accordance with the requirements of the Federal Way City Code (FWCC). On September 13, 1979, King County approved the 16 lot commercial plat of Kits Comer Business Park. At the date of approval and at the date of incorporation of the City of Federal Way, the plat was located within the Manufacturing Park (MP) zone classification of the King County Code. The MP classification required a 25 foot setback from street property lines, but no other setbacks (to include side yard) and had no minimum lot size. The Federal Way City Council adopted its initial zoning ordinance on the same date as the incorporation (February 28, 1990), and placed the business park within the City's Manufacturing Park (MP) zone classification. The MP classification required a minimum lot size of five acres and a side yard setback of 20 feet. In 1995 the City Council adopted an area-wide zone reclassification and placed the plat within the Business Park (BP) zone classification. The BP classification requires a minimum lot size of 1.5 acres and a minimum side yard setback of 20 feet. Both the MP and BP classifications vested existing, substandard lots approved by King County. o The applicant has a possessory ownership interest in lot 6 of the Kits Comer Business Park subdivision and desires to improve the vacant lot with a regional warehouse and distribution facility for indoor magnetic floor mats. Lot 6 is a rectangular, 1.08 acre parcel, 150 feet in width and 314 feet in depth. The lot poses no constraints to development as it has no critical areas or significant trees and the grade varies between 1% and 3%. The 20 foot side yard setbacks restrict the buildable portion of the lot to 110 feet in width. Setbacks consume INDOOR BILLBOARD January 15, 1999 Page - 3 13,030 square feet or approximately 28% of the lot, and staff estimates that the applicant could construct a building with a footprint of 14,130 square feet without a variance. The applicant is proposing a 15,380 square foot building located ten feet from the west side property line and a refuse dumpster five feet from the east side property line. To construct said building the applicant needs a ten foot variance from the west side yard setback and a 15 foot variance from the east side yard setback. The applicant testified that it needed to locate the building within the setback to accommodate the turning radius of its trucks which will access bays on the east side of the building. The applicant has offered increased landscaping and buffeting along the west property line to mitigate the reduced setbacks. The applicant further testified that its trucks require a 30 foot wide driveway and a 100 foot wide standard maneuvering area, and that compliance with the side yard setbacks does not allow a reasonable building width. 6. The applicant bases its variance request on the following: Ao The history of the zoning which at the date of plat approval had no minimum lot size and no side yard setback, but now requires a 1.5 acre minimum lot size and 20 foot side yard setback. The City's previous action in granting substantial yard variances for a smaller lot in the Kits Comer Business Park. The variance is necessary to establish the use which is authorized in the BP zone classification. Because the reasons advanced for the variance address both side yard setback reductions together, findings and conclusions set forth hereinafter address both variance requests as well. The imposition of zoning regulations as do other restrictions adopted pursuant to the police power may reduce the value of certain lands and cause financial loss to some owners. The imposition of a financial loss is not necessarily a hardship which will justify the granting of a variance to mitigate such loss. As stated in Lewis v. Medina., 87 Wn. 2d 19 (1976): It is a well-settled law that zoning is a constitutionally permissible exercise of the police power...Although the plaintiffs herein might suffer considerable financial loss - a frequent situation in zoning matters - that would not render the zoning ordinances invalid. 87 Wn. 2d 19 at 21, 22. As stated in Andersons, American Law of Zoning, 4th Edition, Section 20.22: INDOOR BILLBOARD January 15, 1999 Page - 4 o 10. The power of a board of adjustment to vary the application of the zoning regulations is regarded as one to be used sparingly. Pecuniary loss to an individual rarely has been held sufficient to support its use. Proof of unnecessary hardship is not adequate if it shows merely that some financial loss has been suffered, if the applicant has retained some beneficial use of his land...The fact that development of the applicant's land has been rendered less convenient or more expensive by the imposition of use restrictions does not necessarily constitute a hardship which will justify the granting of a variance... The Federal Way City Council has had two opportunities to consider the setbacks for the Kits Comer Business Park since incorporation in 1990. On both occasions the City Council, while vesting substandard lots, has maintained the 20 foot side yard setback requirement and has offered no relief to substandard lots. Many lots throughout the city within the BP classification are similarly affected, and the applicant should consider relief from the City Council. As pointed out in Exhibit 5, the City's responding memorandum, lots 3, 4, 5, 7, and 10 in the Kits Comer Business Park vary in width between 150 feet and 160 feet and are improved with structures which meet all setback requirements. However, the applicant correctly asserts that the City granted an administrative variance for lot 8 of the Kits Comer Business Park, which reduced the front yard setback from 50 feet to 20 feet, the side yard setback from 20 feet to ten feet, and the rear yard setback from 20 feet to ten feet. These reductions occurred during the time lot 8 and area were within the M1) classification which required a minimum five acre lot size. A review of the Kits Comer plat establishes that lot 8 contains 27,486 square feet as opposed to lot 6 which contains approximately 47,100 square feet. The yard setback variances granted to lot 8 enabled it to accommodate a reasonably sized structure and a use authorized in the MP classification. However, as found above, the applicant is able to construct a reasonably sized building on lot 6 without the necessity of a variance. While the width of the lot might adversely impact the applicant's desire to use the site for a warehouse distribution facility, the Federal Way City Code (FWCC) contains 15 pages of uses authorized in the BP classification, many which do not require large track maneuvering areas. While the lot dimensions and setbacks might prohibit one authorized use, the lot will accommodate many uses authorized in the BP classification. Lot 8 is akin to the 7,391 square foot, triangular shaped lot addressed by the Court of Appeals in Hober§ v. Bellevue, 76 Wn. App 357 (1994). The Hoberg lot was substandard as it was located within a zone classification requiring a minimum 10,000 square foot lot size. The yard setbacks and the irregular shape allowed a triangular shaped building footprint of 624 square feet. The Court approved a variance for the Hoberg lot to allow construction of a reasonably INDOOR BILLBOARD January 15, 1999 Page - 5 sized single family residential dwelling. However, the applicant in the present case is able to use lot 6 in accordance without the BP classification with the necessity of a variance. Anderson's, American Law of Zoning, 4th Edition, Section 20.28 states: Mere irregularities in the contour of a tract, however, do not prove unnecessary hardship if they are not dissimilar from those of other tracts in the district, and if they do not prevent development consistent with the ordinance. A variance to construct an auto repair shop in a residential zone is unwarranted where the triangular lot in issue can be used for a conforming residence. Irregularity and shape is not the test of unreasonable hardship; the test is whether the land can be used for a permitted use. Ander$on'~ then cites Philadelphia Zoning Board of Adjustment v. Durkin Contracting Company, 293 A 2d 622 (1972), wherein the court found that testimony by a real estate expert that the size of the lot in question, its setback restrictions, and the accompanying off- street parking regulations would severely limit the industrial uses for which it was zoned supported a variance to authorize construction of a gasoline station. Thus, to establish unnecessary hardship the applicant would need to show that the size and dimensions of lot 6 and the setbacks unreasonably interfere with the ability of said lot to accommodate many uses authorized in the BP classification. Such would be difficult since many lots within the Kits Comer Business Park support uses authorized in the BP classification. 11. To obtain a variance to the required side yard setback the applicant has the burden of showing that the request satisfies the criteria set forth in Section 22-198 FWCC. Findings on each criteria are hereby made as follows: Ao The requested variance will constitute a grant of special privilege inconsistent with the limitations upon uses of other properties in the vicinity and zone. As previously found, the administrative variance granted for lot 8 does not establish a precedent for other lots in the Kits Comer Business Park as it is readily distinguishable in size and was granted when the area was within the MP classification. Lot 6 may be developed consistent with other uses in the area and with uses authorized in the BP classification without the necessity of a setback variance. B° The variance is not necessary because of special circumstances relating to the size, shape, topography, location, or surroundings of the parcel; and the variance is not necessary to provide the parcel with use rights and privileges permitted to other properties in the vicinity. As previously found, the rectangular shaped, flat, 1.08 acre parcel is similar in dimension and size to other lots within the Kitts Comer plat and has no building constraints. The fact that its width may not accommodate a large INDOOR BILLBOARD January 15, 1999 Page - 6 truck maneuvering area and a warehouse does not create the special circumstances necessitating a variance because of the many uses authorized by the BP classification which lot can accommodate. Granting the variance will not be materially detrimental to the public welfare or injurious to property or improvement in the vicinity. The applicant has offered to provide additional, more intense landscaping along the west property line to buffer the impacts of the building on adjacent properties. Establishing the proposed use on the site is authorized by the BP classification, and based upon other uses in the area, would not adversely impact either the area or adjacent properties. Do The special circumstances of the subject property are created by the actions of the owner. As stated in the applicant's reply memorandum (Exhibit ___): In the present case, the need for the variance is prompted by the City's adoption of both a minimum lot size and new setback standards after the Kits Comer plat had been approved. The lot was created in 1979 by a previous property owner under a different jurisdiction and different zoning code. As pointed out by Anderson's, supra., and by Hoberg v. Bellevue, supra., in extreme cases zoning restrictions can create the special circumstances or hardship necessary to support a variance. However, in the present case, the applicant has not shown that the lot size and dimensions and the yard setbacks prohibit a reasonable use of the site consistent with the BP said zone classification. 12. The applicant must also establish that the variance request satisfies the Process IV decisional criteria set forth in Section 22-445(c) FWCC. Findings on each criteria are hereby made as follows: mo Granting a variance which does not satisfy the criteria set forth in the FWCC is not consistent with the City of Federal Way Comprehensive Plan. The zoning regulations implement the Comprehensive Plan which emphasizes quality of development, building location, landscaping, and design. The applicant cites Sherwood v. Grant County, 40 Wn. App. 496 (1985), wherein the Court of Appeals declined to follow Ling v. Whatcom County Board of Adjustment, 21 Wn. App 497 (1978), which expressed concern regarding the precedent established by granting variances which had no legal basis. However, the most recent decision addressing the precedential nature of variances is St. Clair v. Ska§it County, 43 Wn. App 122 (1986), which declined to follow Sherwood v. Grant County, supra. The St. Clair Court held as INDOOR BILLBOARD January 15, 1999 Page - 7 follows: Likewise, we assume that the developed substandard lots on Big Lake predate the present zoning, and as St. Clair points out, the aggregation and minimum lot size statutes apply countywide. If Member were granted a variance because substandard properties near hers are developed, the Board would be bereft, it seems, of valid grounds upon which to deny such applications in the future. Member cites Sherwood v. Grant County, 40 Wn. App. 496, 699 P.2d 243 (1985). To the extent that Sherwood can be read as approving of a variance because properties in the surrounding area enjoyed similar, but nonconforming uses, we decline to follow it. 43 Wn. App 122 at 128. Thus, granting the applicant a variance where the request does not satisfy the criteria could establish a citywide precedent for substandard lots within the BP classification. The requested variance is consistent with all other applicable provisions of the FWCC. Granting the variance would not be consistent with the public health, safety, and welfare if it established a precedent for future variances for substandard lots which could undermine the overall land use intent and development goal of the BP zone classification. D. The streets and utilities in the area are adequate to serve the proposed use. E. The proposed access to the subject property is sufficient. 13. Professor Richard L. Settle discusses the proper use of variances in his book Washington Land Use and Environmental Law and Practice. In Section 2.9, Professor Settle states as follows: Properly used, then, the variance is a means of fine tuning a zoning ordinance by relieving specific land parcels of restrictions which serve no public purpose and thus unnecessarily burden the parcel because of its unique characteristics. In fact, the variance generally has not been used properly. Too often lay members of boards of adjustments or other bodies assigned the INDOOR BILLBOARD NW January 15, 1999 Page - 8 variance function have regarded the variance as a general dispensing device available to relieve land owners of inconvenient zoning restrictions whenever neighbors fail to resist loudly enough. The promiscuous, unprincipled granting of variances is assigned much of the blame for the often dismal performance of traditional zoning. While in legal theory a variance may be granted only when the pertinent standards of both the enabling act and zoning ordinance are met, such standards often are disregarded by the administrative bodies...It is the cumulative effect of hundreds or thousands of variances in a community which undermines the regulatory purpose and principles of the zoning ordinance and comprehensive plan... In theory, variance from a restriction should be granted only where a lot's special characteristics, which do not generally occur in the district, cause the restriction to impose on the lot special burdens which provide no public benefit. Thus, it is not sufficient that the lot suffers a hardship; land use regulation inevitably causes hardship. It must be shown that the hardship is unnecessary because it provides no public benefit, serves no public purpose, but in addition to unnecessary hardship, it also must be shown that the unnecessary hardship is the result of special circumstances of the lot which zoning drafters apparently had not contemplated. If a zoning restriction imposes unnecessary hardship generally in a zoning district, the appropriate relief is a zoning amendment or constitutional challenge .... The applicant's request does not meet the test for a variance as explained by Professor Settle above. While the side yard setback requirement does impose a hardship, the hardship provides a public benefit and public purpose of providing open space and landscaping between buildings in a business park. Furthermore, the hardship is not the result of the special characteristics of the lot which the City Council apparently had not contemplated. The Council imposed a 20 foot side yard setback upon adoption of the MP classification upon incorporation, and again in 1995 when it adopted the BP zone classification. The side yard setback affects all undersized lots within the BP zone classification equally, and perhaps the applicant's remedy is to seek relief through the City Council. IV. CONCLUSIONS From the foregoing findings the Hearing Examiner makes the following conclusions: INDOOR BILLBOARD January 15, 1999 Page 9 The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. The request for a variance to the required 20 foot side yard setback to allow construction of a building ten feet from the west property line and to locate a dumpster five feet from the east property line does not satisfy the criteria set forth in Section 22-198 FWCC. Approving the variance would constitute a grant of special privilege inconsistent with other lots, and is not necessitated because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property. The special circumstances cited by the applicant are the result of the actions of the owner in attempting to develop the site with a regional warehouse and distribution facility which requires a large truck maneuvering area. Furthermore, granting the variance could become materially detrimental to the public welfare if it serves as a precedent for future variances for substandard lots within the BP classification. The applicant has not established that the variance request is consistent with the City-of Federal Way Comprehensive Plan and that it is consistent with the public health, safety, and welfare. 4. The requested variances should be denied. DECISION: The request for a variance to reduce the side yard setbacks for lot six of the plat of Kits Comer Business Park is hereby denied. DATED THIS / .~AY OF January, 1999. CAUSSEA~JX, Jl~ Hearing Examiner TRANSMITTED THIS /~C~DAY OF January, 1999, to the following: APPLICANT: Alan F. Poe Poe Engineering 400 West Gowe Street, Suite 310 Kent, Washington 98032 INDOOR BILLBOARD January 15, 1999 Page - 10 Jim Shulevitz P.O. Box 17555 Carolyn Lake Two Union Square, 601 Union Street Bruce Goldstein 1230 S. 336th #F City of Federal Way c/o Chris Green 33530 1s' Way S. Portland, OR 97217 Seattle, WA 98101 Federal Way, WA 98003 Federal Way, WA 98003 PROCESS IV Rights to Appeal Decisions of the hearing Examiner may be appealed by any person who is to receive a copy of that decision under FWCC Section 22-443. The appeal, in the form of a letter of appeal, must be delivered to the Department of Community Development Services within fourteen (14) calendar days after the issuance of the Hearing Examiner's decision. The letter of appeal must contain: A statement identifying the decision being appealed, along with a copy of the decision; A statement of the alleged errors in the Hearing Examiner's decision, including specific factual finds and conclusions of the Heating Examiner disputed by the person filing the appeal; and o The appellant's name, address, telephone number and fax number, and any other information to facilitate communications with the appellant. The person filing the appeal shall include, with the letter of appeal, the fee established by the City of the costs of preparing a written transcript of the heating (or in the alternative, the appellant may prepare the transcript at his or her sole costs from tapes of the hearing provided by the City).The appeal will not be accepted unless it is accompanied by the required fee and cost (or agreement of the appellant to prepare the transcript). Appeals from the decision of the Hearing Examiner will be heard by The City Council. The decision of City Council is the final decision of the City. The action of the City in granting or denying an application under this article may be reviewed pursuant to RCW 36.70C in the King County Superior Court. The Land Use Petition must be filed within twenty-one (21) calendar days after the final land use decision of the City. III. WRITTEN COMMENTS SUBMITTED TO H.E. BOGLE&GATES A Professional l.imited l.iabilily Company LAW OFFICES CAROLYN A. LAKE Old City Hall 625 Commerce Street Suite 460 Tacoma, Washington 98402 Direct Dial: (253) 593-4961 Main Office: (253) 922-8446 Facsimile: (253) 922-2711 Internet Email: clake~bogle.com Anchorage Bellevue Portland Seattle Vancouver, B.C. VIA FACSIMILE AND FIRST CLASS MAIL Stephen Causseaux City of Federal Way Hearing Examiner 33530 1st Way South Federal Way, WA 98003-6210 Re: Applicant Reply, re: REQUEST FOR SETBACK VARIANCE City File No. UP498-0010 Dear Mr. Examiner: 31501/00001 December 29, 1998 We represent Indoor Billboard N.W. regarding a site plan and variance application with City of Federal Way. Our client seeks to build a 15,380 square foot warehouse and distribution building at 1916 So. 341s' Place in Federal Way (the "Site"). This Site's development is contingent upon approval of a variance to slightly reduce two building setbacks, pursuant to Federal Way City Code (FWCC) 22-864 (building setback criteria) and FWCC 22-198 (variance criteria) by (a) reducing the building's west setback from 20 to 10 feet, and (b) by allowing a refuse dumpster to be placed five feet from the east property line within the 20 foot side yard setback area for a limited area; the entire remainder of the site's 314 foot east property line will exceed the 20 foot set back requirement, having a 48 foot setback.~ The Examiner held a hearing on the variance on December 8, 1998, at which time the City and the Applicant presented testimony and analysis. The record was left open for the City's written response (submitted December 22aa), and for the Applicant's reply (contained herein). Our client's variance should be approved for the reasons set forth below. ~ The Site also meets or exceeds the balance of the building setback requirements as follows: (a) North line: meets the required 20 foot setback; and (b) the South line: exceeds the required 25 foot setback with a 58 foot building setback. R~CE!V~D BY Stephen Causseaux December 29, 1998 Page 2 I. Variance Analysis A. Reaffirmation of Applicant's Initial Analysis. We reassert the entire analysis submitted in Applicant's initial written memorandum of authority dated December 7, 1998. The City's December 22 response, while impassioned and pejorative2, provides no persuasive legal authority to overcome Applicant's legal analysis that all Federal Way variance criteria (FWCC 22-198 (1)-(4)) have been met. The City apparently concedes that all five Process IV Decisional criteria have been met, as Applicant's analysis is uncontroverted. We respond to specific City arguments below. B. "The special circumstances of the subject property are not the result of the actions of the owner of the subject property." FWCC 22-198(4). The City notes that" The second variance criterion requires that 'the special circumstances of the subject property are not the result of the actions of the owner of the subject property.' FWCC 220-1989(4)." Then;, the City primarily argues that Applicant's case law is not applicable.3 However, in its response, the City misunderstands the holding in Spence v. Board of Zoning Appeals, Supreme Court of Virginia, 496 S.E. 2d 61 (January, 1998), and how it is analogous to the Indoor Billboard variance application in several ways. First, the City claims that "the comparison of a 4,011 square foot triangularly- shaped lot to the 470,448 square foot rectangular lot (sic) Lot 6 is "apples and oranges." City Memo at page 4. The City apparently is arguing that the size of Lot 6 does not impede its development or justify a variance, however, the City grossly overstates the Lot's square footage. Lot 6 is 47,448 square feet in size, not 470,448 square feet as the City alleges. Second, the City simplistically focuses on the size of Lot 6 as compared to the size of the Spence property, and then argues the Spence case does not apply. In so doing, the City misleads the Examiner, as follows. The Spence variance was upheld where the non-conforming lots constituted a 4,011-square-foot triangular comer property, subject to 30-foot setback requirements on two sides. The minimum lot size for building in the area is 7,500 square feet, a little over double the size of the Spence lots. In the present case, the need for the variance is prompted by the City's adoption of both a minimum lot size and new setback standards after the Kit's Comer plat had been approved. The BP zone's standards setbacks are calculated for a lot at least 1.5 acres in size; thus the size of Lot 6 relative to its minimum zoning is near identical to the situation in Spence: Federal Way's 2 The City claims Applicant "creates confusion" (City Memo at page 1); Applicant's argument is "inapt," (City Memo at page 2); Applicant "makes up imaginary criteria" (City Memo at page 5) and "fails miserably" (CiW Memo at page 6). ~ At page 4, the City misquotes the cite to its variance criteria: FWCC 22-1989(4) should be FWCC 22-198(4). 30649' Ltr 12-29-98 [ OGLE&CoATES EL.L.C. Stephen Causseaux December 29, 1998 Page 3 minimum lot size within the subject zone is 63,340 square feet, or a little less than double the size of Lot 6. The Spence variance was upheld, and the developer's purchase did not constitute "self-inflicted hardship," since the Court reasoned that to hold otherwise would mean that a non-conforming property could never be developed after sale. Similarly, in the present case, the variance is required in order that this non-conforming lot be developed for a use permitted within the BP zone. The Kit's Comer plat's lots became "undersized" for the new BP zone and setbacks only as a result of the City's action in adopting a new zone, with a minimum lot size. Thus, the need for a variance was.not created by the property's owners. The City also mischaracterize Vitti v. Zoning Board of Adjustment, Commonwealth Court of Pennsylvania, 710 A.2d 653 (April 9, 1998). In that case, a shelter for homeless women was initially rejected because the 5,740-square-foot property did not meet the 11,600-square-foot area requirement for uses with that number of sleeping rooms. The property has no on-site pfirking; the code requires 24 on-site spaces. Federal Way cites the applicable zoning criteria of the case4, and argues Indoor billboard has not met that burden. However, the significance of Vitti v. Zoning Board of Adjustment is that, notwithstanding this high burden, the Court upheld the variance by the Court's conclusion that a variance was the only way for the property to be used for a permitted, productive use. The City argue in its response that the site should/could be reconfigured; however the unconverted testimony from Applicant's engineer at the heating is that the current configuration is (1) necessary to accommodate warehouse truck delivery and mm around, and (2) requires the variance. The City argues "the applicant is pursuing the variance solely to pursue a particular development proposal;" (City Memo at page 3), glossing over the fact that the City dictated the use for this property _by its adoption of the BP zone. Indoor Billboard's variance meets the intent of the City's current BP zone. The BP zone's warehouse use requires a site configuration sufficient to accommodate large truck deliveries (presumably this is exactly why the City's zone requires a minimum lot size of 1.5 acres for all lots within this zone created after its adoption). The warehouse configuration requires a variance for Lot 6, which was platted prior to the current zone's adoption. Indoor Billboard should not be penalized for developing its lot consistent with the primary purpose of the City's BP zone. Next, the City argues that the variance is not needed if "parking and water quality features" are removed. "Elimination of the stalls and the bioswale would allow the building to be moved to the east and comply with the setback requirements". City Memo 4 ,, ...proof that either the physical characteristics of the property are such that it could not be used for any permitted purpose or that it could be used only for a permitted purpose at prohibitive expense or that the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the ordinance.." 30649' Ltr 12-29-98 BOGLE&GATES P.L.L.C. Stephen Causseaux December29,1998 Page 4 at p. 3. However, as the City is well aware, these elements are required for development. There is no evidence in the record that any alternative configuration would accommodate both a permitted, productive use and these required development elements without the variance. C. "The variance is necessar7 because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and zone in which the subject property is located." FWCC 22-198(2). The City incorrectly narrows the variance criterion of FWCC 22-198(2) by claiming, "as the variance criteria in FWCC 22-198(2) makes clear, variances are granted to parcels possessing unusual physical characterizes such as irregular shape, unusual topography, steep slopes, or rock outcropings(s)." (Original City emphasis). By focusing solely on the property's physical characteristics (i.e., size, shape and topography), the City overlooks that its own variance criteria also is met based on special circumstances relating to the property's location or surroundings. (See FWCC 22-198-(2)). The rules of statutory construction provide that when interpreting a statute, each word is to be given meaning. To focus solely on the physical characteristics, as the City does, would render superfluous the Code's reference to "location and surroundings" as a valid variance criterion. The Applicant's initial memorandum describes how this variance should be granted to allow development of Lot 6 consistent with others in the surrounding area and based on special circumstances relating to rights and privileges enjoyed by other properties in the vicinity and under the same zoning classification. These facts are similar to those in Sherwood vs. Grant County, 40 Wn. App. 496, 699 P.2d 243 (1985) in which a variance approval was upheld on this basis. In Sherwood, the Applicants owned property whichpermitted residential and agriculture but excluded mobile homes. When their rezone was denied, the Applicants moved a mobile on site, refused to remove it when cited, and were held in contempt. Thereafter, they sought and were granted a variance.5 s The Board made the following pertinent findings to support its issuance of the variance: Finding of fact 4: The locale in which the mobile home is situated has at least 131 mobile homes within .3 of a mile. Finding of fact 5: The home is attractive, well maintained and sits on a permanent foundation. Finding of fact 6: Neighbors adjacent to the Millers were not opposed to the variance. Finding of fact 7: Less than 60 feet north of Millers' property is a mobile home park, Cascade Village. Finding of fact 8: Those in opposition t the variance live in Bertram Plat located on the northern edge of Cascade Village. Finding of fact 9: Within Willow Acres there are three other mobile homes and four mobile homes on the same street as the Millers. BOGLE&GATES P.L.L.C. 30649: Ltr 12-29-98 Stephen Causseaux December 29, 1998 Page 5 The applicable Grant County zoning criteria provided in pertinent part: 1. Because of special circumstances applicable to subject property including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification. 2. That the granting of the variance will not materially affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use and will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated. Sherwood at 498. ( The Court's original emphasis provided). Federal Way's variance criteria also references special circumstances relating to the subject property's location or surroundings (F~¥CC 22-198(2)). The Court found that there were special circumstances applicable to the subject property which effectively deprive the Millers of a privilege granted to other property owners in that zone and that the variance would not be injurious to the interest of the public welfare: The special circumstances applicable to the subject property include its location within 60 feet of a mobile home park and the fact it is surrounded by 131 other mobile homes within .3 of a mile, including 3 within Willow Acres and 4 on the same street as the Millers. At least 2 of those mobile homes are located in the same S-1 zone as the Millers; the Latting mobile home because of a variance and the Bohnes, who were grandfathered in. _. Sherwood, at 500. Emphasis provided. The Court also rejected a claim that the variance should be denied because the hard-ship was "self imposed". The Court affirmed the variance based on: particularly the characteristics of the location and surroundings of the property, as it exists, with or without thc presence of thc mobile home. Their illegal act had been previously dealt with in a separate action. The variance will allow the Millers the same privilege with respect to the use of the property as that granted to their neighbors. We hold the action taken by the Board was not arbitrary, capricious, or contrary to law, but was in compliance with the Grant County zoning ordinance. Emphasis provided. Sherwood, at 497. BOGLE&G^TES P.L.L.C. 30649: Ltr 12-29-98 stephen Causseaux December 29, 1998 Page 6 In the present case, the Kits Comer Business Park is a 16 lot subdivision that was approved by, King County in 1979. All properties developed within the plat were approved prior to Federal Way becoming a city, except for three (which includes the Indoor Billboard site). The city allowed reductions to setbacks for one of the two sites it approved. Both Lot 8 and Lot 9 were developed in 1995, when the properties were zoned Manufacturing Park (MP). In 1995"the MP Zone required a minimum five acre lot sizes for industrial and manufacturing uses. Even though Lots 8 and 9 were substantially less than five acres in size, they were legally created prior to March 1, 1990, and were considered vested. In addition, the setbacks requested by Indoor Billboard are 'far less than the substantial ones granted by the City to Lot 8. Indoor Billboard requests a variance for only one side yard. In contrast, Lot 8 (the 341 st Place Building) was allowed substantial reductions to all setbacks.6 Because of its analogous facts, the Indoor Billboard variance should be approved based on the Sherwood analysis, and with a finding that the variance will not be a grant of special privilege. D. "Granting the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located." The Examiner first is reminded that based on the overall generous buffer of setbacks around most of the building, Indoor Billboard's variance meets the underlying purpose of setbacks. The 20 foot required setback is met for the majority of the east property line; an exception is requested only for the enclosed dumpster area. Thus, the required setback is exceeded for 294 feet of the east line; the variance is needed only for the 20 feet area where the enclosed dumpster reduces the setback to five feet. This very modest intrusion will not be materially detrimental to public welfare. In its Response, the City claims granting this variance would be materially detrimental, as it would provide a precedent to erode and "undermine uniform application of the City's reasonable side yard setback requirements, thus making it materially detrimental to the public welfare." City Memo at p.. 6. The City's concerns are not unlike those cited in Ling v. Whatcom Cy. Bd. of Adi. 21 Wn. App. 497, 585 P.2d 815 (1978), which denied a variance to construct a multi-family residence on property zoned S-2, which allowed only single family residences. The Board found there were no special circumstances which justified the issuance of the variance that did not apply generally to the other property in the same zone. The court stated at page 500: Front yard - reduced from 50 feet to 20 feet. Side yard - reduced from 20 feet to I 0 feet. Rear yard - reduced from 20 feet to 10 feet. 30649: Ltr 12-29-98 BOGLE&G^TES P.L.L.C. Stephen Causseaux December 29, 1998 Page 7 If Ling's application for a variance were to be granted, it would appear that the Beard would have no basis for denying subsequent variance applications by other owners. The single-family zoning benefits enjoyed by the area would be effectively lost. The subsequent Sherwood court took note of the Ling case, but dismissed it: The same concern was evident in the minutes of the Grant County Board of Adjustment, specifically the effect the issuance of the variance would have on other properties in the area as they related t.o maintaining the integrity of the zoning plan. However, the minutes reflect the variance was issued for this single parcel because of its particular location on Ottmar Road. Thus, the "domino effect" on other parcels of property in this zone would be minimal, if not nugatory. Ling is not dispositive of this particular factual situation Sherwood, at p. 499. In the present case, of the sixteen lot plat, (Kit's Comer) only three lots, including Applicant's Lot 6, remain undeveloped. Thus, as in Sherwood, there is a very limited potential that the domino effect, feared by the City would spread. Further, any subsequent variance must be viewed on their own specific facts and merits, and the extent to which those facts independently support the requested variance. E. Burden of Proof. The Applicant accepts the burden of proof and has met it, based on the above analysis, and based on the testimony, argument and analysis presented at the Examiner's heating. The standard of review on appeal is whether the action by the Hearing Examiner was arbitrary, capricious or contrary to law. Lewis v. Medina, 87 Wn.2d 19, 22, 548 P.2d 1093 (1976); Martel v. Vancouver, 35 Wn. App. 250, 666 P.2d 916 (1983); Murphy v. Seattle, 32 Wn. App. 386, 389, 647 P.2d 540 (1982). The standard of review is to be applied directly to the record of the administrative proceeding. Murphy, at 390. Agency action is "arbitrary and capricious" only if it is "willful and unreasoning action in disregard of facts and circumstances." Skagit Cy. V. Department of Ecology, 93 Wn.2d 742, 749, 613 P.2d 115 (1980) (as cited in United Parcel Serv., Inc. v. Department of Rev., 102 Wn. 2d 355,365,687 P.2d 186 (1984). Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached. Washington Ass'n for Retarded Citizens v. Spokane, 16 Wn. App. 103, 111,553 P.2d 450 (1976) (citing Lillions v. Gibbs, 47 Wn. 2d 629, 633,289 P.2d 203 (1955)). 30649' Ltr 12-29-98 BOGLE&C ATES P.L.L.C. Stephen Causseaux December 29, 1998 Page 8 Here, the facts, circumstances, and legal criteria all support granting this very modest setback variance. II. Conclusion Based on the above analysis, the City should authorize Indoor Billboard's proposed uSb by granting the requested variance. Sincerely, BOGLE & GATES P:L.L.C. Carolyn A. Lake CC: Jim Shulevitz, Indoor Billboard N.W. Allan Poe, Poe Engineering Inc. Marion Hess, Senior Planner Greg Moore, Community Development Director Deb Barker, Associate Planner 30649- Ltr 12-29-98 BOCLE&G^TES MEMO To From Subject Date Stephen K. Causseaux, Jr., Federal Way Hearing Examiner Bob C. Sterbank~City Attorney, and Marioh'B~. Iffes~, Senior Planner Indoor Billboard Variance (UP498o0010) December 22, 1998 A. Introduction On December 8, 1998, at the hearing on the above-referenced variance request, the applicant's attorney, Carolyn Lake, submitted a nine-page letter / legal memorandum in support of the applicant's request for two side yard variances (10-foot west side yard and 15-foot east side yard). The variances are purportedly necessary to allow the applicant to construct a 15,380- square-foot building. The letter purports to address how the variance request meets the four variance criteria contained in Federal Way City Code ("FWCC") 22-198 and the Process IV decisional requirements contained in FWCC 22-445(c). Unfortunately, the letter/memorandum contains little in the way of actual analysis of how the proposal meets the variance criteria. Instead, it alternately mischaracterizes the proposal, and the variance criteria, and relies on out-of-state legal authorities rather than Washington appellate decisions. Apparently, the memo's strategy was to create confusion to distract the Examiner from the memorandum's mischaraeterizafions and the multiple "apples to oranges" comparisons strewn throughout it. In this response memorandum, the City addresses the variance criteria and their application to the actual proposal, and responds to the various arguments raised in the applicant's 9-page letter/memorandum. B.-Variance Criteria. The requirements for obtaining a variance are set forth in FWCC 22-1987 1. Lack of Legitimate Need for the Variance The primary criteria is that the variance be necessary: Although the applicant quotes the variance definition contained in RCW 36.70.020(14), this definition applies only to counties, and not to optional municipal code cities such as Federal Way, which is governed by RCW 35A. Because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and zone in which the subject property is located. FWCC 22-198(2) (emphasis added). This is a two-pronged test; i.e., the variance must be necessary because: (1) the property has special circumstances pertaining to its physical condition; and (2) in order to provide the subject property with the same rights available to other nearby properties in the same zone. The applicant, however, ignores this test. Instead, the applicant repeatedly argues that the variance is necessary because the City rezoned the property from Manufacturing Park (MP), which did not require any side setbacks except as required by fire and building ordinances,2 to Business Park, which requires 20-foot side setbacks. See, e.g., December 7 letter/memo at 3 (Lot 6 "became undersized" for the new BP zone and setbacks only as a result of the City's action in adopting a new zone, with a minimum lot size.").3 This argument is inapt. First, as the variance criteria in FWCC 22-198(2) makes clear, variances are granted to parcels possessing unusual physical characteristics such as irregular shape, unusual topography, steep slopes, or rock outcropping(s). A variance granted to a lot, ar parcel, because of a change in zoning would, in effect, negate the purpose and intent of the new regulation, rendering it ineffective as a standard. Therefore, a change in zoning is not listed in variance defmitions, or as a reason for granting the variance. Second, the applicant does not need a variance because its lot is too small - Lot 6 is 150 feet by 314 feet, for a total of 47,448 square feet. The real reason the applicant needs the variance is because the applicant is proposing an oversized building located 10 feet and 5 feet from the west and east side property lines, respectively. Approximately 1/3 of the building is proposed for leased space, for some use other than the applicant's, and the building is situated almost on top of the western property line, solely to accommodate the applicant's particular development proposal and track delivery plan. See Staff Report at Exhibit A, page 6. As the December 7 letter itself admits, its development proposal utilizes "a site configuration sufficient Kit's Coruer Business Park Final Plat was approved by King County on September 13, 1979, and was later zoned Manufacturing Park prior to City of Federal Way incorporation in 1990. The MP zone did not require any side yard, except as would be r~quired by fire and building ordinances, (See attached King County Zoning Chapter 21.34, pages 903-905), although in the majority of cases, all buildings were required to setback some distance from the side yard property line. After the City of Federal Way incorporated on February 28, 1990, the City adopted a new Zoning Ordinance on the same date establishing a "MP" Manufacturing Park zone. This zone required a minimum lot size of 5 acres and a side yard setback of 20 feet. See also December 7 letter at 4 ("Indoor Billboard seeks a minimal setback variance only to accommodate and re-apportion the setbacks, which were intended for the larger of lot size 1.5 acres, but are now imposed upon the smaller lot wen the city recently rezoned the property."); at 6 ("the variance is required due to the lot's narrow, rectangular configuration, which was established prior to the City's adopted mandatory BP set backs .... Under the previous MP zone, the code permitted the Community Development Director to establish setbacks appropriate to the site' unique dimensions. Indoor Billboard had and has a reasonably expectation to rely on setbacks established for their site, sufficient to allow the permitted warehouse use."). to accommodate large truck deliveries. That configuration necessitates the variance." December 7 letter at 4-5 (emphasis added). In essence, the applicant is seeking the variance solely to pursue a particular development proposal, configured in a particular way. Indeed, a quick review of the site plan indicates that the driver for the building's location is the proposed placement of a bioswale in the eastern setback. This water quality feature could be located elsewhere - even underground. And, the parking stalls proposed on the east side of the building do not need to be located there. Elimination of the stalls and the bioswale would allow the building to be moved to the east and comply with setback requirements, particularly if the "lease space" at the rear of the building were eliminated. Further, uses allowed in the BP zone are not necessarily constrained by building size ratio to lot size. Therefore, Lot 6 is not constrained by the number of different uses that could occupy a building of the size allowed by the building footprint dictated by the yard setbacks, the off-street parking standards, and landscaping. In short, the development proposal - not lot size - has created the need for a variance. This does not meet the requirement that the variance be necessary because of special circumstances related to the physical condition of the property. Third, the variance is not necessary to provide the applicant with any fights or privileg~ enjoyed by properties in the vicinity in the same zone. Existing buildings sun'ounding the subject Lot 6, (Lots 7 and 10, and Lots 3, 4, and 5 to the south across 341st Place) all meet the required yard setback. Lot 5, located directly across the street is the same 150-foot width as Lot 6 and has an existing building located 20 feet from the west property line. Lots 3 and 4 are 156+ feet and 155 feet in width respectively. Lot 7 is 150 feet in width and Lot 10 is 160 feet in width. It is apparent, then, that the width of Lot 6 is not a justification for granting a variance because buildings on other lots within the vicinity meet the 20 foot minimum side yard standard of the BP zone. The only property within the plat which does not meet the setback requirement is Lot 8, which received an administrative approval - not a variance -- for a reduced setback in 1995, at time when such approvals were allowed under the applicable zoning4. The administrative approval was granted due to Lot 8's small size (it is only 28,000 square feet in area), compared to Lots 3 through I 0 located easterly of 18th Place South. See Exhibit "A" of Staff Evaluation For a Variance Request, Indoor Billboard N.W., Federal Way File No. UP498-0010. Even if this approval had been a variance, however, under Washington law it would not entitle Indoor Billboard to a variance. Buechel v. Department of Ecology, 125 wn.2d 196, 211 n. 43, 884 P.2d 910 (1994). Moreover, Indoor Billboard has not explained how the owner of Lot 8 is exercising rights or privileges not available to Indoor Billboard on its 47,448 square-foot lot. 4 Indoor Billboard claims that it had a "reasonable expectation to rely on setbacks established for their site," as if to claim it has vested rights under pre-Federal Way ~ncorporation zoning. Washington law is clear, however, that rights to develop subdivision lots pursuant to the codes in effect at the time of subdivision approval vest for only 5 years. See RCW 58.17.170. If Indoor Billboard had wanted to vest to a more permissive setback standard, it should have submitted a development application within 5 years of 1979. It failed to do so. In essence, then, the variance request does not comply with the most basic requirement, because the variance is necessitated by the applicant's plans for the property, rather than the property's physical condition, and because the variance is not necessary to provide the owner of the property the fights and privileges enjoyed on the whole by owners of other lots in the vicinity. The cases cited by the applicant underscore this point. For example, the December 7 letter cites, at 4, paragraph 1, the case of Spence v. Board of Zoning ,~ppeals, Supreme Court of Virginia, 496 S.E. 2d 61 (January, 1998). Spence, however, involved a very small 4,011 square- foot triangular shaped lot. The comparison of a 4,011 square foot triangularly-shaped lot to the 470,448 square-foot rectangular lot Lot 6 is "apples and oranges." Indoor Billboard's Lot 6 does not have an irregular shape or small lot size. To argue that, because Lot 6 is less than 1.5 acres a variance should be granted, is to say that all lots less than 1.5 acres and zoned BP (Business Park) throughout the City of Federal Way should be granted a setback variance. This would negate the Zoning Ordinance 20-foot side yard setback standard, rendering it ineffective. The other case cited by the letter, Vitti v. Zoning board of Adjustment, Commonwealth Court of Pennsylvania, 7i0 a.2d 653 (April 9, 1998), states (as recited in the December 7 letter) that: Undue hardship, required to justify a variance under the city code, requires proof that either the physical characteristics of the property_ are such that it could not be used for any permitted purpose or that it could be used only for a permitted purpose at prohibitive expense or that the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the ordinance. December 7 letter/memo at 5 (emphasis added). Here, of course, there is no argument that the routine, rectangular characteristics of Lot 6 prevent its use for any permitted purpose, or impose prohibitive costs, or rob the lot of all value. The applicant simply cannot use the lot for its desired use (warehouse), in its desired configuration. This does not come close to meeting the criteria for a variance. 2. The Claimed Hardship is Self-Created. The second variance criterion requires that "the special circumstances of the subject property are not the result of the actions of the owner of the subject property." FWCC 22- 1989(4). Here, of course, the "need" for the variance has been created entirely by the actions of the owner, in that it is the configuration of the owner's proposal that is creating the claimed "need" for a variance. The applicant claims (December 7 letter at 3-4) that the hardship is not self-created because it was the City's actions in rezoning the property that created the need for a variance. This claim has already been debunked above. In addition, however, the Examiner should note that Indoor Billboard does not yet own the property, but is merely considering purchasing it. A person who purchases with knowledge of restrictions is not qualified to obtain a variance to develop in excess of application requirements; the purchase with knowledge renders any "hardship" self-created. Buechel, 125 Wn.2d at 209, n. 39. A simple redesign of the applicant's proposal would eliminate the need for a variance and still allow the applicant to pursue its warehouse plans. The current variance request, however, does not comply with FWCC 22-198(4). 3. Granting the Variance Will Confer A Grant of Special Privilege A third variance criteria with which Indoor Billboard's request does not comply is the requirement that the variance request "not constitute a grant of special privilege inconsistent with the limitations upon uses of other properties in the vicinity and zone in which the subject property is located." FWCC 22-198(1). Here, as noted above, development on all other properties adjacent to Lot 6 are in compliance with setback requirements. Granting the variance would allow the owners of Lot 6 a privilege - development within required side setbacks - not available to other property owners. Existing buildings surrounding Lot 6 meet the 20 foot sideyard setback, particularly the buildings to the west (Lots 7 and 10) and to the south (Lots 3, 4, and 5). Indoor Billboard's request is therefore inconsistent with the code requirements. Implicitly acknowledging this, Indoor Billboard literally "makes up" two new, imaginary criteria: (1) that the variance is required for non-standard lot to accomplish zone's permitted use; and (2) that the variance is less intrusive than prior city approvals. December 7 letter/memo at 4- 6. These arguments are irrelevant and do little to advance the inquiry. Moreover, even if they were variance criteria, Indoor Billboard has miSapplied them. For example, the applicant argues (page 4) that a variance is required to accomplish the zone's "primary" permitted use of warehousing. Federal Way's code, however, does not create "primary" and "secondary" uses; a use is either permitted, unpermitted, or a legal nonconforming use. In fact, the existing uses surrounding the Indoor Billboard site -- vocational and trade schools (Intellipas) and broadcast studios (Trinity Broadcasting Co.) -- ar.e legally permitted under FWCC 22-865 and 22-862. Thus, a variance is not necessary to accomplish a permitted use in the zone, it is only necessary to pursue Indoor Billboard's project under its current design configuration. Indoor Billboard also argues that, because it is requesting a smaller degree of setback reduction than was administratively granted to Lot 8 in 1995, there is no special privilege. In applying the above variance justification to Lot 6 is like comparing a small orange to a large orange. There are obviously similar characteristics, but there is a significant difference in size. Lot 8 is small in size, 27,486 square feet, compared to Lot 6, which is 47,242 square~eet. Lot 6 is 41% larger than Lo!o8. Also, Lot 6 is different in shape compared to Lot 8. Lot B'is almost square, whereas, Lot g is an elongated rectangle. Therefore, there are two significant differences between the two lots---size and shape. Therefore, the justification for Lot 8's then-permitted administrative setback reduction to Lot 6 cannot apply with equal force., as Indoor Billboard argues, but rather does not apply at all. Indoor Billboard has not addressed or met the substance of the requirement contained in FWCC 22-198(I): that its requested variance not provide a grant of special privilege. As the party requesting the variance, Indoor Billboard has the burden of proof. Douglass v. Spokane, 25 Wn. App. 283, 829, 609 P.2d 979 (1980). It has failed to meet this burden on this criteria. 4. Granting the Variance Will Be Materially Detrimental Granting the variance will be materially detrimental, because of the precedent it will create for other lots in the vicinity. Indoor Billboard argues that.the City should not consider precedent or cumulative impact, but rather should evaluate only this application. December 7 letter at 8. This ironic in light of the fact that Indoor Billboard goes to great lengths in claiming that a previous "administrative approval" for setback reductions on Lot 8 suffices as precedent for granting Indoor Billboard's variance. December 7 letter/memo at 5-6. Other property owners would do so as well, were the City to grant Indoor Billboard's variance request. This is true regardless of the fact that, as Indoor Billboard points out, only three lots remaining in the Kits Comer Business Park are undeveloped. The cumulative impact upon existing vacant lots, if the variance is granted, includes three other lots outside of Kit's Comer Business Park that are presently zoned BP, not just the remaining three vacant lots located within the plat. And, property with existing buildings can be redeveloped, at which time the City could face additional variance requests. The precedent Indoor Billboard's variance would create would undermine uniform application of the City's reasonable side yard setback requirements, thus making it materially detrimental to the public welfare. C. Conclusion According to the City of Federal Way Zoning Code, Division 8, Section 22-198: "The city may grant the variance only if it finds all of the following: Criteria (1), (2), (3) and (4) as continued in said section, are met." The applicant has not carried its burden of demonstrating that all of the variance criteria listed in Section 22-198 have been met; indeed, review of those criteria demonstrates that the application fails miserably in most respects. Therefore, the requested variance must be denied. Professional Limited Liability Company LAW OFFICES CAROLYN A. LAKE P.L.L.C. Pacoma Financial Center ! 145 Broadway Plaza Suite 1360 Tacoma, Washington 98402-3502 Direct Dial: Main Office: Facsimile: lntemet Email: . (253) 5934961 (253) 922-8446 (253) 922-2711 clake~bogle.com Anchorage Bellevue Portland Seattle Vancouver, B.C. 31501/00001 VIA FACSIMILE AND FIRST CLASS MAIL Hearing Examiner Stephen K. Causseaux, Jr. c/o City of Federal Way Department of Community Development 33530 Ist Way South Federal Way, WA 98003-6210 Re~ REQUEST FOR SETBACK VARIANCE City File No. UP498-0010 December 7, 1998 Dear Mr. Causseaux, Jr.: We represent Indoor Billboard N.W. regarding a site plan and variance application with City of Federal Way. Our client seeks to build a 15,380 square foot warehouse and distribution building at 1916 So. 341st Place in Federal Way (the "Site"). This Site's development is contingent upon approval of a variance to slightly reduce two building setbacks, pursuant to Federal Way City Code (FWCC) 22-864 (building setback criteria) and FWCC 22-198 (variance criteria) as follows: (a) West line: To reduce the building's ~etback from 20 to 10 feet, and (b) East line: To allow a refuse dumpster to be placed five feet from the east property line within the 20 foot side yard setback area for a limited area; the entire remainder of the site's 314 foot east property line exceeds the 20 foot set back requirement, having a 48 foot setback. Stephen K. Causseaux, Jr. December 7, 1998 Page 2 The Site also meets or exceeds the balance of the building setback requirements as follows: (a) North line: meets the required 20 foot setback; (b) South line: exceeds the required 25 foot setback with a 58 foot building setback. Our client's variance should be approved for the reasons set forth below. I. Summary of Application Indoor Billboard seeks a distribution/warehouse facility to be located at 1916 So. 341 st Place in Federal Way. The Site is Lot 6 of a sixteen lot commercial plat, Kit's Comer Business Park, which was created in 1979. Indoor Billboard first developed plans for the facility when the Site was zoned as Manufacturing Park (MP). However, subsequently, the site was zoned Business Park (BP) BP. The BP zone permits warehouses and distribution facilities, with a process III review. Under the Site's former MP zone, the Director of Community Development was authorized to administratively establish the appropriate building setbacks. The new BP zone assumes a minimum lot size of 1.5 acres and establishes fixed building setbacks. The minimum lot size for BP zone use is 1.5 acres (FWCC 22-264). The Site's lot is 1.12 acres and is a long, narrow lot: 150 feet wide and 314 feet deep. Note 13 of FWCC 22-864 permits the use on any size lot if (a) the lot was lawfully created prior to March 1, 1990, and (b) the applicant has not owned any contiguous lot or lots since 1990. Indoor Billboard met this criteria to the City's satisfaction by letter dated September 25, 1998. However, the Site's smaller lot size contributes to the need for this variance request. II. Project Description Indoor Billboard's planned warehouse and distribution facility will operate as a regional hub. Indoor Billboard produces indoor magnetic floor mats for businesses such as Eagle Hardware. These mats are collected, washed and replaced on a regular basis. Washing takes place at the Indoor Billboard's Tukwila and Portland sites. The Federal Way site will be a distribution point to collect used mats and to issue clean mats for this region's customers. The warehouse building and parking areas are designed around the size and turning radius of the company's distribution trucks. Because the Site's east parking lot is sized to ac_commodate the trucks turning radius, the building is shifted to the site's west side. The Site's resulting building setbacks are proposed as follows: BOGLE&GATES P.L.L.c. Stephen K. Causseaux, Jr. December 7, 1998 Page 3 Required Setback a. North: 20 feet b. South: 25 feet c. East: 20 feet d. West: 20 feet Proposed Setback 20 feet 58 feet 48 feet for the 314 foot length, except for the screened dumpster area of approximately 20 feet 10 feet III. Variance Analysis RCW 36.70.020(14) defines as a variance as: ...the means by which an adjustment is made in the application of the specific regulations of a zoning ordinance to a particular piece of property, which property, because of special circumstances applicable to it, is deprived of privileges commonly enjoyed by other properties in the same vicinity and zone and which adjustment remedies disparity in privileges. Variances were created to ease the impact of specific zoning restrictions which create defined hardships on specific properties without a corresponding public benefit. Variances are typically used to allow a project to differ from "dimensional" or "bulk" requirements such as height, setbacks, yard size, lot coverage, or floor area. Martel v. City of Vancouver Bd. of Adjustrnents, 35 Wn. App. 250, 666 P.2d 916 (1983). Emphasis added. The Site meets the City's variance criteria of FWCC 22-198 as follows: 1. "The special circumstances of the subject property are not the result of the actions of the owner of the subject property." Response: The need for the variance is prompted by the City's adoption of both a minimum lot size and new setback standards after the Kit's Comer plat had been approved. The BP zone's standards setbacks are calculated for a lot at least 1.5 acres in size. The Kit's Comer plat's lots became "undersized" for the new BP zone and setbacks only as a result of the City's action in adopting a new zone, with a minimum lot size. Thus, the need for a variance was not created by the property's owners. I OGLE&( ATES P.L.I .C. Stephen K. Causseaux, Jr. December 7, 1998 Page 4 Indoor Billboard's situation is analogous to the variance affirmed by Virginia's highest court in Spence v. Board of Zoning Appeals, Supreme Court of Virginia, 496 S.E. 2d 61 (January, 1998). In 1989 a real estate developer bought two lots in the Chesapeake Beach area of Virginia Beach. The lots constitute a 4,01 I-square-foot triangular comer property, subject to 30-foot setback requirements on two sides. The minimum lot size for building in the area is 7,500 square feet. The developer knew that a previous owner had been denied a variance to build a residence on the lots, but submitted a site plan and applied for setback variances of 17 feet and a variance from the parking space size. When the variance approval was appealed, the highest court affirmed, holding that the developer was not barred from obtaining a variance. The developer's purchase did not constitute "self-inflicted hardship," according to the court, which reasoned that to hold otherwise would mean that a non-conforming property could never be developed after sale. The court noted that the developer did not violate an ordinance and later seek relief from the consequences of his unlawful act, but only sought relief based on the physical characteristics of the property. Similar to Spence, Indoor Billboard seeks a minimal setback variance only to accommodate and re-apportion the setbacks, which were intended for the larger of lot size 1.5 acres, but are now imposed upon the smaller lot when the city recently rezoned the property. 2. "The variance request will not constitute a grant of special privilege inconsistent with the limitations upon uses of other properties in the vicinity and zone in which the subject property is located." Response: a. Variance required for non-standard lot to accomplish zones's permitted use. In his staff report, City Planner Marion Hess argues against the variance by citing to Lot 7 and Lot 5 within Kit's Comer. Mr. Hess argues that the buildings on Lot 5 and 7 meet the setback; therefore, Indoor Billboard's variance should be denied. Staff Report, page 4. What Mr. Hess fails to point out is (1) the buildings were approved prior to adoption of the current BP zone and setback standards, and (2) the buildings are not used for the current zone's primary intended use: warehouse and distribution. Instead, Lot 7 is used for retail sales and for a ballroom dance studio. Lot 5 uses include a professional education center. None of these uses fall within the primary intent of the current BP zone (warehouse, wholesale distribution facilities, bulk food preparation facilities, equipment storage yards for business whose work primarily is performed offpremises, mini warehouses and public storage facilities, merchandise and equipment rental facilities). See FWCC 22-864. Of the three lots, only Indoor Billboard's use meets the intent of the current zone. That use (warehousing) requires a site configuration sufficient to accommodate large truck deliveries. That BOGLE&GATES Stephen K. Causseaux, Jr. December 7, 1998 Page 5 configuration necessitates the variance. Indoor Billboard should not be penalized for carrying out the primary intent of the City's adopted BP zone. In Vitti v. Zoning Board of Adjustment, Commonwealth Court of Pennsylvania, 710 A.2d 653 (April 9, 1998) a shelter for homeless women, previously operating in a church basement, wanted to expand and provide counseling. It located a three-story vacant building in "uptown" Pittsburgh, zoned for C-4 commercial use, that previously housed a sporting goods store. The application was initially rejected because the 5,740-square-foot property did not meet the i 1,600-square-foot area requirement for uses with that number of sleeping rooms. The property has no on-site parking; the code requires 24 on-site spaces. The court stated that undue hardship, required to justify a variance under the city code, requires proof that either the physical characteristics of the property are such that it could not be used for any permitted purpose or that it could be used only for a permitted purpose at prohibitive expense or that the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the ordinance. The Court noted that property was in a downtrodden area, and had been vacant for several years. The court concluded that a variance was the only way for the property to be used for a permitted, productive use. b. Variance is Less Intrusive Than Prior City Approvals. Indoor Billboard will not be granted a special privilege, since other property owners will have notice and opportunity of the BP zone's minimum lot size and the required setback criteria prior to platting and/or subdividing their property and can plan accordingly. In addition, granting this variance will be consistent with a prior approval issued by the City within the Kit's Comer plat. The Kits Comer Business Park is a 16 lot subdivision that was approved by King County in 1979. See Exhibit 1, maps of Kits Comer properties. All properties developed within the plat were approved prior to Federal Way becoming a city, except for three (which includes the Indoor Billboard site). The city allowed reductions to setbacks for one of the two sites it approved. Both Lot 8 and Lot 9 were developed in 1995, when the properties were zoned Manufacturing Park (MP). In 1995 the MP Zone required a minimum five acre lot sizes for industrial and manufacturing uses. Even though Lots 8 and 9 were substantially less than five acres in size, they were legally created prior to March 1, 1990, and were considered vested. Also, under the prior MP Zone (Section 22-867 FWCC) the Director of Community Development was granted the authority to determine required yard, landscape, and buffer requirements for developments of less than five acres. This accommodation was in apparent recognition of the disproportionate impact standard setbacks would have on a sub-standard size lot. In 1995, the City approved reduced setbacks for Lot 8. See attached Exhibit 2, City Staff Report for 341st Place Building at p 2, which provides in pertinent part: "The applicant and the Director have agreed that the front yard setback will be 20 feet, the side yard setbacks 10 feet, and the rear BOGLE&GATES Stephen K. Causs~aux, Jr. December 7, 1998 Page 6 yard setback 10 feet. Ali setbacks will be planted to meet the requirements of a Type III landscape buffer as described in Section 22-1565 FWCC." The setbacks requested by Indoor Biliboard are far less than the substantial ones granted by the City to Lot 8: Fl Front Reduced from 50 feet to 20 feet. Side Reduced from 20 feet to 10 feet. Rear Reduced from 20 feet to 10 feet. In contrast, Indoor Billboard requests a variance for only one side yard. The City's justification for Lot 8's setback reductions apply with equal force to support Indoor Billboard's variance, which also should be approved: The reduced setbacks are considered appropriate for proposed manufacturing and office uses on this parcel due to the constraint of the small lot size. Adequate building separation is maintained, and the increase in buffer landscaping mitigates any adverse impacts of the setback reduction. The modified setback creates a pedestrian friendly site, and facilitates placement of the building between the street and the parking lot in conformance with FWCC section 22-1441(a). Exhibit 2, City Staff Report, 341st Place Building at p. 1-2. 3. "The variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and zone in which the subject property is located." Response: The variance is required due to the lot's narrow, rectangular configuration, which was established prior to the City's adopted mandatory BP set backs. Warehouse distribution facilities were permitted under both the MP and BP zone. Warehouse facilities require access, parking and dock door configurations designed to accommodate truck traffic. Under the previous MP zone, the code permitted the Community Development Director to establish setbacks appropriate to the site's unique dimensions. Indoor Billboard had and has a reasonable expectation to rely on setbacks established for their site, sufficient to allow the permitted warehouse use. BOGLE&GaTES Stephen K. Causseaux, Jr. December 7, 1998 Page 7 Also, since the lot is undersized for the (current) BP zone, the (new) required setbacks have a greater proportionate adverse impact on the use of the property. The variance would mitigate against this adverse impact. 4. "Granting the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located." Response: The purpose of setbacks is to ensure adequate separation, light, and air. See, generally 2 Robert M. Anderson, American Law of Zoning, § 9.58 (3d ed. 1986); I Robert M. Anderson, American Law of Zoning, § 7.20 (3d ed. 1986). Given the overall generous buffer of setbacks around most of the building, Indoor Billboard's variance meets the underlying purpose of setbacks. The 20 foot required setback is met for the majority of the east property line; an exception is requested only for the enclosed dumpster area. Thus, the required setback is exceeded for 294 feet of the east line; the variance is needed only for the 20 feet area where the enclosed dumpster reduces the setback to five feet. This very modest intrusion will not be materially detrimental to public welfare. Along Indoor Billboard's west property line, where a 10 feet setback is requested, the adjacent property already is developed with the building located approximately 50 feet from the property line. Thus, substantial building separation will be assured, even with the variance. IV. Process IV Criteria Because this application also is subject to Hearing Examiner Process IV decisional requirements, Indoor Billboard responds briefly as to how it meets that criteria: 1. The project is consistent with the Comprehensive Plan. The subject site is designated as "Business Park" by the Federal Way Comprehensive Plan (FWCP), and zoned BP (Business Park). Applicable policies in the 1995 FWCP Land Use as follows: (City of Federal Way Comprehensive Plan, page 11-15). Business Park (Land Use Intent): The Business Park designation is a new designation that substantially encompasses the uses found in the former Manufacturing Park zoning designation, where large undeveloped and underdeveloped parcels, having convenient access to Interstate 5 and Highway 18, provide a natural location for business park development. The advent of the Business Park designation is intended to capture the growing demand for higher quality, mixed-use business parks which permit a mixture of light manufacturing, warehouse/distribution, office, and limited retail uses to serve the immediate needs in the area. Revisions to design and performance standards will address site development, lot size, setbacks, and modulation. (Emphasis added.) BOGLE&GATES EL. LC. Stephen K. Causseaux, Jr. December 7, 1998 Page 8 GOAL: Develop a quality business park area that supports surrounding commercial areas. Indoor Billboard's proposed warehouse distribution use precisely carries out the intent of the City's 1995 Comprehensive Plan. Indoor Billboard seeks to achieve the BP Zone's distribution warehouse use, despite being hampered by a lot which does not meet the new BP zone's minimum lot size. Given the size of the existing lot, the City has a choice: i.e. either (a) to grant a modest setback variance which allows the site to be developed for the warehouse use consistent with the 1995 Plan, or (b) to erode the zone's intent by tolerating uses such as those on Lot 7 or 5, which detract from a true business park intent. Approval of Indoor Billboard's setback variance is the choice most consistent with the City's current Comprehensive Plan. In his staff report, Marion Hess argues that variance would detract from a quality development. Mr. Hess' argument relies on future development actions, other than the proposal strictly before it: granting variances.., would, in a cumulative effect and appearance adversely impact the development quality specified for this zone. Once a precedent is set for an area, it would be difficult for the City to not grant additional variances. Staff Report, page 7. The argument against the variance is faulty in several ways. First, this application should be reviewed, judged and approved or denied on its own merits. The City is not deciding "cumulative" applications, only one. Indoor Billboard has presented unique facts demonstrating how it complies with the variance criteria. Its merits should not be lumped with, or be detracted by, speculative, future unknown applicants. Second, the staff report fails to point out that of the sixteen lot plat (Kit's Corner) only three lots, including Indoor Billboard's, remain undeveloped. Thus, there is very limited potential that the variance "contagion" feared by the City would be contracted on an area-wide basis. 2. The project is consistent with all applicable provisions of this Chapter and all other applicable laws. The staff admits this project meets this criteria: It appears from the application that the building and dumpster to be placed on the lot will comply with all other aspects of the FWCC Section 22-864, including the building height. Staff Report, at page 3. BOGLE&GATES P.L.L.£ Stephen K. Causseaux, Jr. December 7, 1998 Page 9 3. The project is consistent with the public health, safety and welfare. The variance meets the health, safety and welfare purposes of setbacks: to allow adequate separation for light, air and fire code purposes. In his staff report, Mr. Hess admits that no city department or other agency objected to the variance. Staff Report, p. 7. However, Mr. Hess cites again to the alleged "cumulative" effect in arguing this criteria is not met. When correctly viewed on its own merits, Indoor Billboard's application meets this criteria. 4. The streets and utilities in the area of the subject property are adequate to serve the anticipated demand from the proposal. Indoor Billboard and the City agree that "Access and service are not issues with this application." Staff Report, p. 8. 5. The proposed access to the subject property is at the optimal location and configuration for access. Indoor Billboard and the City agree that, "The 341 st Place street access is not an issue with this variance request." Staff Report, p. 8. V. Conclusion Based on the above analysis, the City should authorize Indoor Billboard's proposed use by granting the requested variance. Sincerely, Carolyn A. Lake cc: Jim Shulevitz, Indoor Billboard N.W. Allan Poe, Poe Engineering Inc. Marion Hess, City of Federal Way Senior Planner Greg Moore, Community Development Director Deb Barker, Associate Planner l:XAttomeys\Lake, Carolyn\HessLtr. doc BOGLE&GATES EL. LC. /o J' 3400~ St=yen Elec~c: 412~15 BU[LDLNO 41~]25 J BILLBOARDi / S. 341ST ST. 39038000401 1~09 2121049007 21210,49051 EXISTING LAND USE MAP! 21210400~ OPEN STORAGE 2121O49O56 050 1925 212104~ 2011 lntelllpa.s/lnsurgas Ed Rosoadin Electric. Prof~.sional Exiuc~, Centtr 2025 WCHS, 34114 BADEN SPORTS 2121~2 2121049021 21210.4904,5 EXH! PAG OF N OO- I 4'T4~~-. CITY OF ~~j~~, RECEIVED ' APR FEDERAL WAY, WA ~q*~t~FEq)ERAL WA April 16, 1996 Mr. Axel Lindstr6m P.O. Box 5045 Bellevue, Washington 98009-5045 RE: 341ST PLACE BUILDING Dear Applicant: Enclosed please find the Report and Decision relating to the above-entitled case. Any person may request reconsideration or appeal the Hearing Examiner's decision pursuant to the Federal Way Zoning Code. The rights to reconsideration and appeal page is attached for your information. STEPHEN K. CAUSSEAUX, JR. HEARINO EXAMINER SKC/cs cc: Ail parties of record City of Federal Way CITY OF FEDERAL WAY OFFICE OF THE HEARING EXAMINER IN THE MATTER OF: 341ST PLACE BUILDING PROCESS II FWHE#: 96-05 I. SUMMARY OF APPLICATION The applicant is requesting Process II approval to construct a 10,104 square foot speculative shell building with 16 associated parking stalls. H. PROCEDURAL INFORMATION Hearing Date: Decision Date: April 2, 1996 April 16, 1996 At the hearing the following presented testimony and evidence: 1. Mike Thomas, Senior Planner, City of Federal Way 2. Allen Poe, Poe Engineering, 400 W. Gowe Street #310, Kent, WA, 98032 At the hearing the following exhibits were admitted as part of the official record of these proceedings: 1. Staff Report with all attachments. m. FINDINGS The Heating Examiner has heard testimony, admitted doctunentary evidence into the record, and taken this matter under advisement. The Community Development Department staff report sets forth general findings, applicable policies and provisions in this matter, and is hereby marked as Exhibit 1 and incorporated in this report by reference as though set forth in full herein. All appropriate notices were delivered in accordance with the requirements of the Federal Way Zoning Code. 341 ST PLACE BUILDING APRIL 16, 1996 PAGE - 2 The applicant has a possessory ownership interest in Lot 8 of the Kits Comer Business Park consisting of 28,000 square feet and located on the north side of 341st Place, east of its intersection with 18th Place within the City of Federal Way. The site is presently unimproved and the applicant is requesting Process II approval to allow construction of a 10,100 square foot building with four track bays and 16 associated parking stalls. The building will be used for unspecified manufacturing, warehousing, or storage uses with limited office space. The Kits Comer Business Park is a 16 lot subdivision that was approved by King County in 1979. The Federal Way City Code (FWCC) requires minimum five acre lot sizes for industrial and manufacturing uses. Even though the lot is substantially less than five acres in size, it was legally created prior to March 1,'1990, and is considered vested. A review of the proposed site plan reveals that direct access to the site is provided from 341st Place which in mm provides access onto Enchanted Parkway. Enchanted Parkway provides access onto 348th Street which becomes SR-16 at the intersection with Interstate 5. The applicant is proposing 16 parking stalls which exceeds the minimum of 11 parking stalls required by Section 22-867 FWCC. e A dispute presently exists between the applicant and the City regarding whether or not the applicant needs to provide additional storm drainage facilities. The developer of the Kits Comer Business Park installed a storm drainage system for the entire park in aecorclanee with 1979 storm drainage criteria. However, the plat includes a note which requires that each lot provide on-site storm water detention. The City is requiring a biofiltration swale and a detention vault or pond at the building permit stage. The applicant objects, but is willing to work with the City to resolve the issue which is not part of the Process II approval. All utilities are available to serve the site to include electricity, natural gas, water, and sanitary sewers. The proposed building meets the design standards for building modulation and height as set forth in Section 22-862 FWCC. The building will be greater than 60 feet in length and will have a series of awnings and facade relief to provide modulation. The overall building height is 25 feet which is significantly less than the 35 foot limit. 10. The site is located within the Manufacturing Park (IMP) zone classification of the FWCC and is designated as Business Park (BP) by the City of Federal Way Comprehensive Plan. Thus, the proposed development is consistent with both the zone classification and. comprehensive plan des:,gnation. 11. Section 22-867 FWCC grants the Director of Community Development the authority to 341 ST PLACE BUILDING APRIL 16, 1996 PAGE - 3 determine required yard, landscape, and buffer requirements for developments of less than five acres. The applicant and the Director have agreed that the fi'ont yard setback will be 20 feet, the side yard setbacks l0 feet, and the rear yard setback l0 feet. All setbacks will be planted to meet the requirements of a Type III landscape buffer as described in Section 22-1565 FWCC. 12. Prior to obtaining Process II approval the applicant must establish that the proposal satisfies the criteria set forth in Section 22-443(C) FWCC. Findings on each criteria are hereby made as follows: Ao The recently adopted Federal Way Comprehensive Plan designates the site as Business Park. The applicant's proposed use is consistent with said designation. Development of the subject site as proposed will be in compliance with the provisions of the FWCC and all adopted codes and regulations concerning development and the mitigation of development impacts. Development of the site in accordance with all applicable codes will ensure that the public health, safety, and welfare are protected. Approval of the request will permit development consistent with the Manufacturing Park zone classification. IV. CONCLUSIONS From the foregoing f'mdings the Hearing Examiner makes the following conclusions: The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. The applicant has established that the request for Process II approval to allow improvement of lot 8 of the Kits Comer Business Park with the 341st Place Building and associated parking satisfies the criteria set forth in Section 22-443(c) of the Federal Way City Code. Therefore, Process II approval should be granted. DECISION: 341 ST PLACE BUILDING APRIL 16, 1996 PAGE - 4 The request for Process II approval to allow improvement of lot 8 of the Kits Comer Business Park with a 10, I 04 square foot manufacturing/warehousing/storage building and associated business offices and 16 parking spaces is hereby granted. S~l~EP~q~-qq I~. CAUSSEXUX,~I~ Hearing Examiner RIGHTS TO RECONSIDERATION AND APPEAL THE BELOW STATED RIGHTS TO RECONSIDERATION ANDAPPEALARE DESIGNED TO PROVIDE NOTICE OF .TIME LIMITS AND A GENERAL OUTLINE OF RECONSIDERATION AND APPEAL PROCEDURES. THE SPECIFIC REQUIREMENTS FOR REQUESTS FOR RECONSIDERATION ARE FOUND IN SECTION 22-445 OF THE FEDERAL WAY CITY CODE. THE SPECIFIC REQUIREMENTS FOR APPEALS ARE FOUND IN SECTION 22-446 OF THE FEDERAL WAY CITY CODE. CLARIFICATION OF THE RIGHTS TO RECONSIDERATION AND APPEAL AND THE NAMES AND ADDRESSES OF PERSONS WHO HAVE A RIGHT TO APPEAL MAY BE OBTAINED FROM THE CITY CLERK OF THE CITY OF FEDERAL WAY. RECONSIDERATION Any person who has a right to appeal a decision under the Federal Way Zoning Code may request the Hearing Examiner to reconsider any aspect of his or her decision by delivering a written request for reconsideration to the Department of Community Development within seven (7) calendar days after the date of issuance of the Hearing Examiner's decision. The person requesting the reconsideration shall specify in the request what aspect of the decision he or she wishes to have reconsidered and the reason for the request. The person requesting the reconsideration shall within seven (7) calendar days following issuance of the decision, mail or personally deliver a copy of the request for reconsideration along with a notice of the right to file a written response to the request to those persons who have a right to appeal under Section 22-446 of the Federal Way City Code. Proof of such mailing or personal delivery shall be made by an affidavit attached to the request for reconsideration at the time of delivering the request to the Department of Community Development. The notice shall state that such response must be received by the Department of Community Development within seven (7) calendar days following the filing of the request with the department. Any person filing a response to the reconsideration request must distribute that response by mail or personal delivery to those persons having a right to appeal under Section 22-446 of the Federal Way City Code. Proof of such distribution by mail or personal delivery shall be made by affidavit attached to the response delivered to the Department of Community Development. Within ten (10) working days following expiration of the time to file responses to the reconsideration requests. The Hearing Examiner shall notify the persons who have a right to appeal under the Federal Way City Code, whether or not the decision will be reconsidered. The Hearing Examiner may reconsider the decision only if he or she concludes that there is substantial merit in the request. The process of reconsideration will be in accordance.with Section 22-445 of the Federal Way City Code. APPEAL The decision of the Hearing Examiner may be appealed by any person who is to receive a copy of that decision pursuant to Section 22- 443 of the Federal Way City Code. The appeal, in the form of a letter of appeal, must be delivered to the Department of Community Development within fourteen (14) calendar days after the issuance of the Hearing Examiner's decision or, if a request for reconsideration is filed, then within fourteen (14) calendar days of either the decision of the Hearing Examiner denying the request for reconsideration or the reconsidered decision. The letter of appeal must contain a clear reference to the matter being appealed and a statement of the specific factual findings and conclusions of the Hearing Examiner disputed by the person filing the appeal. The person filing the appeal shall include, with the letter of appeal, the appeal fee established by the City and the costs of preparing a written transcript of the hearing (or in the alternative, the appellant may prepare the transcript at his or her sole costs from tapes of the hearing provided by the City). The appeal will not be accepted unless it is accompanied by the required fee and cost (or agreement of the appellant to prepare the transcript). The decision of the Hearing Examiner may be appealed whether or not there was a request to reconsider the Hearing Examiner's decision. Appeals of the Hearing Examiner's decision will be heard by the Federal Way City Council. CITY OF FEDERAL WAY DEPARTMENT OF COMMUNITY DEVELOPMENT SERVICES FINDINGS FOR SITE PLAN APPROVAL APPLICATION # SPR 95-0017 341st PLACE BUILDING 1805 South 341st Place Federal Way, WA The following are findings for the Site Plan Approval to construct a warehouse/storage/office building with parking, associated landscaping and bioswale facilities, at 1805 South 341st Place, Federal Way. The proposal is to cbnstruct a 10,104 square foot speculative building, with sixteen (16) parking spaces and on-site storm water detention and drainage facilities. Allowed uses include manufacturing, warehouse or storage with associated office spaces. 2. The existing 3~oning for the subject site is Manufacturing Park 0VIP). 3. The Comprehensive Plan designation is Industrial/Office Park. The proposed use is permitted within the MI:' zoning district subject to Use Process II pursuant to Federal Way City Code (FWCC) section 867 - Warehouses, Distribution Facilities. Note 2 of FWCC section 22-867 states that the development must contain 5 acres in size provided, however, that. the use may be developed and conducted on the site if the lot lines were legally created prior to city incorporation (February 28, 1990) and the applicant has not owned contiguous. 16ts since 1990. For developments under 5 acres in size, the director of community development will administratively determine the required yard, landscape, buffer and other similar dimensional requirements on a case by case basis. The applicant provided documentation confirming this criiteria. In a May 8, 1995, administrative decision, the required yard dimensions were set forth as follows: Front Side Rear Reduced from 50 feet to 20 feet, based on an increase from 10 to 20 feet of t.ype III landscaping. Reduced from 20 feet to 10 feet, with 5 feet of Type III landscaping. Reduced from 20 feet to I0 feet, with 5 feet of Type III landscaping. The reduced setbacks are considered appropriate for proposed manufacturing and office, 341st Place Building Findings Page 2 uses on this parcel-'.due to the constraint of the small lot size. Adequate building separation is maintained, and the. increase in buffer landscaping mitigates any adverse impacts of the setback reduction. The modified setback creates a pedestrian friendly site, and facilitates placement of the building between the street and the parking lot in conformance with FWCC section 22-1441(a). Note 5 of FWCC section 22-867 states that ha?ardous waste treatment and storage facilities must comply with Washington State citing criteria adopted in accordance with RCW chapter 70-105. No activity or use that involves the release of toxic or noxious gases, fumes or odors may be conducted on the subject property per FWCC section 22-867, note #6. Facade modulation is required for all facades in excess of 60 feet in length per FWCC section 22-867, note #7.The use may include an accessory office utilizing no more than 30 % of the gross floor area of this use and accessory retail sales and service facilities utilizing no more than 10% of the gross floor area of the site per FWCC section 22-867, note #8. o e 10. 11. The site is 28,000 square feet in size, and consists of lot 8 of the plat of Kits Comer Business Park. The subject site is presently undeveloped. It is located in a partially developed area. Urban utilities and services are available to service the site. Current uses of the site and the surrounding area are: Site: vacant North: Warehouse/manufacturing South: South 341 st Place. East: 'Commercial West: vacant The applicant proposes to excavate approximately 1,500 cubic yards of material and £fll 1,500 cubic yards of fnaterial. Any erosion related impacts during cleating and construction will be mitigated by implementing a Temporary Erosion/Sedimentation Control (TESC) plan to be reviewed and approved by the City of Federal Way before a building permit may be issued. Water quality will be addressed by routing storm water mn-off through a biofiltration swale. Also, on-site detention will be provided pursuant to a plat condition noted on the Kit's Comer Business Park plat. The design of the detention facility shall be in accordance with the criteria in the King County Surface Water Design Manual. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. - 23. 24. 341st Place Building Findings Page 3 Pedestrian and vehicular access is via South 341st Place. The applicant proposes to provide sixteen (16) on-site parking stalls to provide required parking. The City's Traffic Division reviewed the proposed development and determined that based on the internal building configuration and the available square footage (10,000 square feet), a Traffic Impact Analysis (TIA) would not be required. No off-site traffic impacts are expected. The right-of-wa3/.contains full curb, gutter and sidewalks. The subject parcel contains slope of approximately five (5) percent. Approximately six~Y'fiv~ (65) percent of the site will be covered with impervious surfaces. Pursuant to the Stat& Environmental Policy Act (SEPA), RCW 43.21C, the responsible official of the City of Federal Way issued a Determination of Non-significance on December 16, 1995. The appeal period ended on January 2, 1995. No appeals were ~ed with the City. The final staff evaluation for Environmental Checklist, Federal Way Application number SEP 954)016 is hereby incorporated by reference as though set forth in full. .: The proposed site plan was received on July 12, 1995. Revisions to the site plan were received on October 26, 1995. A preliminary landscaping plan was submitted on July 12, 1995, and revised on October 26, 1995. A final landscape plan that meets the requirements of Federal Way City Code (FWCC) Article XVII - Landscaping, must be approved before the building permit may be issued. Water and sewer facilities are available to the site and adequate to serve the proposed development. An Industrial Users Survey must be completed and returned to the Lakehaven Utility District. The proposal embodies good design principles that will be compatible with the character of this area of the community. The proposed site plan, application and application attachments have been reviewed for compliance with the Federal Way Comprehensive Plan, pertinent zoning regulations and all other apphcable city r~gulations. 341st Place Building Findings Page 4 25. The proposed developm, ent is consistent with decisional criteria required under section 22- 364, Purposes of review, of the Federal Way City Code. Conclusions: The proposed site plan and application have been reviewed for compliance with Federal Way Comprehensive Plan, pertinent zoning regulations and all other applicable City regulations. Final construction drawings will be reviewed for compliance with specific regulations, conditions of approval and applicable City requirements. This decision shall not waive compliance with future City of Federal Way codes, policies and standards relating to this decision. Approved: Director-Vof Coh'l'munity Development Services Prepared by: Michael Thomas, Senior Planner March ,25, 1996 Exhibits: Approved Site Plan SEPA DNS IV. H.E. PUBLIC HEARING TRANSCRIPT Williams, Kastner & Gibl PLLC LAw FIRM Carolyn A. Lake Attorney at Law (253) 552-4085 lakeca@wkg, corn 1000 Financial Center 1145 Broadway Plaza Tacoma, Washington 98402-3502 Telephone (253) 593-5620 Tacoma (206) 628-2420 Seattle FAX (253) 593-5625 April 7~,:_;1~999- '~:' RECEIVED 10561.100 Laura Ulanowski City of Federal Way Clerk's Office 33530 1st Way So. Federal Way, WA 98003 Re: Transcript of Hearing Examiner's Hearing on Variance Appeal Dear Laura: Per your request, enclosed please find the City's copy of the Verbatim Transcript of the Hearing Examiner's hearings of October 27, 1998, and December 8, 1998. Thank you. Very truly yours, WILLIAMS, KASTNER & GIBBS PLLC Carolyn A. Lake CAL:ldl Enclosure T - 66T56.1 Seatlle Tacoma 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CITY OF FEDERAL WAY OFFICE OF THE HEARING EXAMINER IN THE MATTER OF: INDOOR BILLBOA/~D N.W. VARIANCE REQUEST PROCESS IV NO. FWE# 98-12 VERBATIM TRANSCRIPT FROM TAPED RECORDING October 27, 1998 Federal Way, Washington BYERS &ANDERSON, INC. COURT REPORTING & VIDEO 2208 North 30th Street ONE UNION SQUAikE Suite 202 600 University Street Tacoma, Washington 98403 Suite 2300 (253) 627-6401 Seattle, Washington 98101 Fax: (253) 383-4884 (206) 340-1316 Internet: www.byersanderson.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES For the City of Federal Way: MARION HESS, Temp Senior Planner GREG FEWINS, Senior Planner For the Applicant: CAROLYN LAKE, Attorney at Law ROBERT AIKINS, Poe Engineering )OR BILLBOARD N.W. VA/~IANCE REQUEST, 10/27/98 - Appearances 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BE IT REMEMBERED that on October 27th, 1998: at Federal Way, Washington, before STEPHEN K. CASSEAUX JR., Hearing Examiner of the City of Federal Way, the following proceedings were taped and later transcribed, to wit: <<<<<< >>>>>> VARIANCE HEARING HEARING EXAMINER: Good afterhoon, ladies and gentlemen. We're going to go ahead and convene the agenda for Tuesday, October 27th and consider the matter that is scheduled for 2:00, and that is Case No. UP-498-0010 request for a variance. I have received a letter from Alan Poe on behalf of the Applicant requesting a 30-day continuance to provide an opportunity to prepare for the hearing in light of the staff report. Does the City have anything it wants to present in response to the continuation request? MR. HESS: We support the request. HEARING EX~4INER: Is the Applicant present? MR. AIKINS: Yes. HEARING EXAMINER: Are you Mr. Poe? INDOOR BILLBOARD N.W. VARIANCE REQUEST, 10/27/98 - Hearing 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. AIKINS: with Poe E~gineering. No. Robert Aikins HEARING EXA=MINER: We had tentatively discussed on the phone a possible hearing date of Tuesday, December 1st at 2:00. MS. AIKINS: Isn't it December 2nd? HEARING EXAMINER: I have December 1st as Tuesday. MR. AIKINS: That first Tuesday -- HEARING EXAMINER: It would be the first Tuesday of -- it better be or my calendar is-wrong if it's December the 2nd. If that's acceptable to both parties, we can go ahead and continue it to that date. Because this is the time and date originally scheduled for this hearing and because proper notice was given both in the newspaper, and, I guess, the site was posted and also property owners within 300 feet were sent notice, and we have convened the hearing, it's not necessary that any additional notice be sent out. If someone does show up, maybe later, that got messed up on the hearing time or something then, we would go ahead and make them parties of record and advise them of the new time and date. But it's not necessary to, you know, send out a new public notice. So we will go ahead then and reconvene. INDOOR BILLBOARD N.W. VARIANCE REQUEST, 10/27/98 - Hearing 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Is 2:00 satisfactory to everyone? Okay. Then we'll go ahead and continue the matter to 2:00 then, Tuesday, December 1st. And we'll reconvene the hearing at that time. If there's nothing further then, we're now adjourned. (Hearing adjurned.) INDOOR BILLBOARD N.W. VARIANCE REQUEST, 10/27/98 - Hearing 5 1 '2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (STATE OF WASHINGTON) I, SUZANNE L. BURRUSS, ) ss CCR #BU-RR-US-L285MO, a County of Pierce ) duly authorized Notary Public in and for the State of Washington residing at Tacoma, do hereby certify: That the foregoing hearing of October 27, 1998, was taped and thereafter was transcribed under my direction; That I am not a relative, employee, attorney or counsel of any party to this action or relative or employee of any such attorney or counsel and that I am not financially interested in the said action or the outcome thereof; That I am herewith securely sealing the said transcript and promptly delivering the same to ATTORNEY CAROLYN LAKE. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this day of , 199 Suzanne L. Burruss, CCR, Notary Public in and for the State of Washington, residing at Tacoma. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CO ~V CITY OF FEDERAL WAY RECEIVED OFFICE OF THE HEARING EXAMINERA'Rp l.q.qg CITY CLERKS OFFICE CITY Ol: FEDSRAL ~.~AY IN THE MATTER OF: INDOOR BILLBOARD N.W. VA_RIANCE REQUEST PROCESS IV NO. FWE# 98-12 VEPd~JkTIM TRAlqSCRIPT FROM TAilED RECORDING December 8, 1998 Federal Way, Washington BYERS & ANDERSON, INC. COURT REPORTING & VIDEO 2208 North 30th Street ONE UNION SQUARE Suite 202 600 University Street Tacoma, Washington 98403 Suite 2300 (253) 627-6401 Seattle, Washington 98101 Fax: (253) 383-4884 (206) 340-1316 Internet: www.byersanderson.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEAP~CES For the City of Federal Way: MARION HESS, Temp Senior Planner GREG FEWINS, Senior Planner For the Applicant: CAROLYN LAKE, Attorney at Law ALAN POE,- Poe Engineering INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Appearances 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BE IT REMEMBERED that on December 8, 1998, at Federal Way, Washington, before STEPHEN K. CASSEAUX JR., Hearing Examiner of the City of Federal Way, the following proceedings were taped and later transcribed, to wit: <<<<<< >>>>>> VARIANCE HEA/kING HEARING EXAMINER: Good morning, ladies and gentlemen. We're going to convene the agenda for Tuesday, December 8th and consider the matter that is scheduled for 10:00 and that's case No. 98-12, request for a variance. The Applicant is Allen F. Po~ and Poe Engineering, and the request is for a variance to allow construction of a 15,380-square foot building with two side yard variances, one from 20 feet to 10 feet for a building setback and secondly a Dumpster setback reduction from 20 feet to 5 feet. The site is located as part of the Kits Corner Business Park and is at 1916 South 341st Place within the city of Federal Way. For the record, my name is Steve Casseaux. City of Federal Way hearing examiner. I'm an attorney I'm the INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the private practice of law with my office at 902 South 10th in Tacoma. The other lawyers in my office are Terri McCarthy, Patricia Rourke and Mark Hurdlebrink. So if anyone knows of a reason why I should not hear the matter, please indicate; otherwise, we'll go ahead and proceed. The way we'll proceed then this morning is we'll first hear a presentation of the City's Community Development Department Staff Report by Marion Hess. And then following Mr. Hess's presentation, we'll hear testimony from the Applicant and those who wish to speak in favor of the request and then testimony from anyone who might wish to speak in opposition or have questions or concerns. Following conclusion of the hearing this morning; I'll take the matter under advisement and will issue a written decision. The Applicant will receive a copy of that decision and anyone else desiring a copy may receive one by signing in on our sign-up sheet, which is located in the back of the room. And we'll mail you a copy of the decision upon its preparation. When it is your turn to testify this morning, please come forward to the podium, state your name and address and spell your last name for us, so we have it correct for the record and then proceed with your INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. At this time, then, I'd like to ask those who are going to be testifying, please stand and raise your right hands to be sworn. (A swearing in of those who will testify was heard.) Hess. HEARING EXAMINER: Thank you. Mr. MR. HESS: This application for Indoor Billboard Northwest was submitted to the City of Federal Way. And in reviewing the file, I found out that the basis for the application really rests on an administrative variance that has been submitted in the past, prior to the existence (inaudible) -- and prior-to the comprehensive plan that you orientate the location of the site. It's in the southeast quadrant of the city, located- at 1916 South 341st Place on Lot 6 of Kits Corner Plat. It is surrounded by several existing buildings. The one to the west of the site, 1908 is the address, and there's no tenants in this building. And for the record, this building needs a setback 20 feet from the side yard. The lot to the east is outside of Kits Corner Plat. INDOOR BILLBOAi~D N.W. VARIANCE REQUEST, 12/8/98 - Hearing 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's a parcel. It's not in any plat. It's an open storage yard. The lot across the street from the site, 1925, is Intellpas/Insurpas, an educational center. And that building meets the 20-foot setback. And then to the west of that is the Trinity Broadcasting Company 1909, and that building meets the setback on that lot. The properties that are outside of the plat to the east, understand they were built under King County zoning, and they were established a little differently. The locations of the site property lines were not particularly looked at. What we're dealing with is primarily Kits Corner tracks. And I'll go into that as we go along here. First, to identify the site plan that was submitted, this is a proposed building footprint. The red line on the drawing shows the 20-foot setback on the west. And the red line on the east side of Lot 6 is a 20-foot setback. The poles along the site plan is for a Dumpster located on the east side, 5 feet from the property line, which means there would be a 15-foot variance there. The building on the west side of the property is located -- poles should be located 10 feet from the property lines. So that would be a 10-foot variance on INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 6 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 that side. The rest, north and south and so forth -- in fact if the Dumpster was relocated, the east side of the building would be conforming to the yard setbacks required for this zone. So that's the proposal. The comprehensive plan, I'll get to that as we go on. It's important to this request because a lot of it's based on the required administrative variance granted to Lot 8 at Kits Corner park. The plan at the present is designated Business Park, a BP. Formally it was industrial commercial, when Federal Way was first incorporated. I have a slide that shows when it was changed to Business Park. And then the zoning also has changed since the granting of the administrative variance of Lot 8 on Kits Corner Plat. The present zoning is Business Park. The prior zoning was Manufacturing Park. They're quite similar. It wasn't too much change, as far as yard setbacks or uses in the new zoning. Now, this here's the slide. I wanted to point out that the administrative setback variance determination for 1804 South 321st Place, Lot 8 of Kits Corner Business Park, was issued. That was granted on May 9th, 1995. Now, to show you where that is, I have this slide INDOOR BILLBOAJlD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 7 1 2 3 4 5 6 8 10 11 12 13 14 15 16 1'7 18 19 20 21 22 23 24 25 here. Lot 8 is this lot on the plat right here, Lot 8, and the size, of course, you can see is a different shape than'Lot 6. In fact, it's little over half of the size of Lot 6. It's a different size., different arrangement than Lot 6. Going back to the importance of this date when it was approved, May 9th, 1995, that was under the original conference plan when the City of Federal Way was first incorporated, February 27th, 19'90. That plan was changed November 21st of 1995. have a different comprehensive plan applying to the plat. And also the first zoning code was dropped February 27th, 1990. That was changed on July 2nd, 1996, to Business Park. So we have a different zoning code, a new zoning- code, and also new conference plan guidelines on this variance request, knd to go through the criteria, I would just like to refer to the Staff Report, it highlights the answers to this criteria as we saw it. At first glance, the request appeared to be in order. But in researching it, going out and looking at the site and looking at existing buildings that are located there in Kits Corner Plat, we came to the conclusion that it wasn't quite the same situation as the previous Lot 8 administrative variance that was So we INDOOR BILLBOARD N.W. VARIA~NCE REQUEST, 12/8/98 - Hearing 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 '19 20 21 22 23 24 25 granted. So on Page 3 of the staff report, criteria on the variance request, will not constitute the granting of special privilege inconsistent With limitations, upon the uses of other properties in the vicinity and zone in which the subject property is located. And then the Applicant's request is highlighted there and the size of the building and so forth. The comment is, granting the variance'will constitute'a grant of special privileges inconsistent with limitations upon uses of the properties withi~ the vicinity zone. Amd then for example: The lot directly across the street, which is 1925 South 341st Place, Intellpas/Insurpas was approved by the City in 1995~ And then it's similar in size and width as an existin~ 13,825-square foot, 2-story building in compliance with all of the yard setbacks. And that site plan was submitted to the Court as Exhibit B. Also Lot 7, located to the west of the subject site, which is 1908 South 341st Street, is an existing building. It was located 20 feet from the side yard. So these two buildings meet the side yard setback, and also the Trinity Broadcasting Company Building, meets the 20-foot side yard, although it's occupying two lots of Kits Corner. INDOOR BILLBOARD N.W. VDJRIANCE REQUEST, 12/8/98 - Hearing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lot 8, that administrative variance was g~anted for right here. That is not built to date. There's no building on the site. That variance approval appears to have expired. And now the second point under the criteria, the variance is necessary because special circumstances relating to the size, shape, topography, location, surroundings of the subject property to provide it with use, rights, and privileges admitted to other properties in the vicinity and (inaudible) to which subject property is located. When you touch on the topography, topography is not a problem here. There's no steep hillside or peak or ravine or gully. The slope is gradual, 1 percent slope, and the grade can be adjusted when the site is developed to lessen whatever slope is on that lot. So the variance is not necessary due to special circumstances related to the topography. However, the Applicant is submitting in support for the application it talks about the under-sized lot of the zone. The zone requires a 1.5 acre minimum. The lot size is 1.08 acres. So due to this narrow rectangular configuration of the lot, they're stating it's impossible to achieve reasonable lot coverage of 30 percent. So that's justification in the Applicant's submittal for granting INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the variance. However, Staff notes that the surrounding development, as we've pointed out in the previous map, have met the setback in Intellpas across the street and also the 1908 building. The various tenants had met the 20-foot building setback, as well as the Trinity Broadcasting Company. The conclusion is, the variance is not necessary due to the size and shape of the lot, based on surrounding existing buildings meeting the side yard setback. Number 3 criteria, by granting the variance will not be (inaudible) for public welfare or injurious to the property or improvements in the vicinity on its own of where the subject property is located. ~ Staff Comments Report notes that the 10-foot side yard that -- if this was granted -- plus the 20-foot side yard to the west, probably would not create any detriment to the public health, safety and welfare because it's sufficient separation. And also the other front yards, rear yards and other side yards are ample for that result. So staff couldn't find that that would be seriously impacted; if the variance was granted in this case. Number 4 criteria, now, the special circumstances INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the subject property are not the result of ~he actions of the owners of the subject property. Of course, th£s would be a case of applicant or agent that wants to put a proposed building on the property. And the owner wishes the client to sell it. So, in essence, it's the owner's wish to have the proposed variance approved in order to sell the property. And then their support for this -- what happened is the law, size and geometry were establish when Kits Corner Park was created in '79. (Inaudible) property zoning surrounding uses and freeway access were created (inaudible) to locate the new facility on this site. The comments on that from staff's point of view is that the Applicant is not constrained by topography or site size, shape, or other existing conditions characteristic of the subject property. Special circumstances are the result 'of the Applicant, proposing said building on the lot larger than the building footprint allowed by the required yard setback set for the BP Zone. For these reasons, the special circumstances of the subject property are the result of the actions of the Applicant, not the result of the planning. As we mentioned before, the setback determination for the proposed building on Lot 8 at 1804 South 341st INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Place was submitted to the Court on the variance. In our noting of this, since 1995, the zoning has changed to Business Park, and the lot size and the yard setbacks have been kept the same as the former Manufacturing Park Zone. So why should this letter be used -- not used for justification for granting the variance for subject Lot 6 because the said Lot 6 -- I'll begin putting the assessors map up. This the Lot 6, 47,242 square feet is approximately 41 percent larger than the size of Lot 8 and adds a different size and shape between the two. So it's a different set of circumstances that we're dealing with. Now, the Process For Decisional Criteria, number 1, it is consist with the comprehensive plan. As mentioned before, the comprehensive plans that Lot 8 appeared under was changed, and also the zoning has changed. And then we note that the business park land use intent -- we cite this in our report -- that the goal is- to develop quality business park areas that support surrounding commercial uses. The emphasis is on quality. And one of the ways that you get quality is by having adequate building setbacks and landscaping. The proposal to move the building 10 feet closer eliminates 10 feet of potential landscaping area. And that, in turn, would deplete the INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quality of the environment and the intent of the comprehensive plan. And a~so if you grant this one for 10 feet, that means the remaining vacant lots, in order as they are proposed to be developed, would request a 10-foot side yard variance. And you would have a cumulative impact of downgrading the quality of the building environment, -via less landscaping and separation and (inaudible) space. So the conclusion then is that to grant the variance here would not be consistent with the goal or policy of the comprehensive plan. Second criteria, it is consistent with public health, safety and welfare. If the variance is granted, the proposal would qualify for this and meet this criteria. And we all note, too, that if the variances were observed, the building was setback 20 feet, the Dumpster is relocated so it would not be within the side- yard area, it also then would meet this criteria. Number 4, the streets and utilities in the area of the subject property (inaudible) facility and anticipate the management on the proposal. This is not applicable criteria to a variance, although the site, the lot, is served by suitable public utilities and streets. Number 5, proposed access to the subject property INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is at the optimal location, configuration, for access. A_nd, again, that's not really an issue in this variance request. This is a plot criteria. And variance is not necessarily plotting. So the conclusion recommendation that we came up with was the criteria (inaudible) involvement, topography, lot size and shape, goals and objectives from 1995 Federal Way Comprehensive Plan, FWC, does not support the requested variance. So we recommend that the variance be denied. I've attached exhibits on the staff report. So again, the site is located here. The immediate building to the left has a 20-foot side yard setback. The building to the south meets the 20-foot yard setback. And also the building to the west of that, 1909, meets a 20-foot side yard setback. As far as the other buildings, outside the plat, some of them may be closer to the side property line. We feel that this area and the plat is what we're concentrating on. That's the more pertinent building via the location to the proposed variance. That's our report. HEAi~ING EXAMINER: Thank you, Mr. Hess. Mr. Fewins, do you have anything? MR. FEWINS: Not at this time. INDOOR BILLBOARD N.W. VARIA/qCE REQUEST, 12/8/98 - Hearing 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEARING EXAMINER: Ms. La~e. I'm going to mark the staff report as Exhibit 1. And then I'll mark Ms. Lake's memorandum with attachments as Exhibit 2. MS. LAKE: Thank you, Mr. Examiner. First of all, I am Carolyn Lake representing the Applicant. And I have two additional representatives here, Carolyn Shulevitz Rupert, who is a representative of the proposed property owner and also Alan Poe from Alan Poe Engineering. And Mr. Poe may provide some technical data or explain the site plan further, if the Examiner has any questions. But I'll be presenting the main presentation. I have provided the Examiner and the City with a nine-page letter which outlines our justification for- the variance. And attached to that are two exhibits. Exhibit 1 are a couple of different maps. I'll be using those as overheads, and they also refer to the site plan. That's an overhead, as well. In addition to that, Exhibit 2 are the two documents relating to the variance approval for Lot 8, the 341st Place building variance that was previously granted by the City. I want to point out first that I want to outline on this particular overhead a patchmark where the Kits Corner Plat is. This is a portion of the plat that INDOOR BILLBOTkRD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extends further out this way. And of course our site is the Indoor Billboard site located on Lot 6. I think it's important to know that from the outset our variance request is minimal. Of course there are four setbacks for the building. The main impact of our variance request is on the west line where we're asking to reduce the setback from 20 to 10 feet. On the east line where we're also requesting a variance, that!s only in a limited area. We want to allow a refuse Dlnnpster to be placed 5 feet from the east property line, rather than the 20-foot setback, but only in that limited area. The remainder of the east property line will have a setback of 48 feet, which is more than double what the code's required setback is. For the balance of the property lines, we eitherr meet or exceed the building setbacks. On the north line we meet the 20 feet. On the south line there's a required 25-foot setback. And we're proposing a 58-foot' building setback. So we're in excess of what the code for that would require for us on two of the four. Also, I want to describe a little bit about what the site will be. Indoor Billboard is looking to have approved a distribution warehouse facility at this location. This site is Lot 6 of a 16-lot commercial plat called Kits Corner, which was created in 1979, INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which was prior to the City's incorporation. Indoor Billboard actually has been developing plans for this facility back when the site was known as Manufacturing Park, although, of course, no permits were submitted at that time. When they got into the permitting process, that's when they discovered the change in the zone and the change in the zoning setback requirements, when it was changed from MP to BP. Of course, the BP permits our proposed use warehousing distribution facility subject to the process three requirement. I want to explain a little bit of the difference between the MP Zone and the BP Zone. Under the former MP Zone, there was a minimum lot size of 5 acres. Of course, our lot and all of the lots in the Kits Corner Plat did not fit that minimum requirement and the recognition of that under the MP Zone. The code allowed the community development director to establish setbacks. on a case-by-case basis and to administratively do that. Under the new BP Zone there's still a minimum lot size of 1.5 acres. We still don't meet it. But yet under the BP Zone there's fixed building setbacks. Our lot is 1.2 acres, so it is undersized. And it's a long, narrow lot. It's a long, narrow lot, 150 feet wide and 314 deep, and because the code does INDOOR BILLBOA/~D N.W. VARI}~NCE REQUEST, 12/8/98 - Hearing 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 include a -- allows us to be vested because th~ lot was created prior to the minimum lot size for the zone, we're allowed to move forward. However, it's because of the smaller sized lot -- and here we're going to differ with the City a little bit. Because of the lot's smaller size, it does require that we seek and be approved for a variance. Indoor Billboard, they make a product. It's called magnetic floor mats. D~nd they're used in places like Eagle Hardware, where you walk in, and it pulls the dirt from your shoes. And you.walk forward, and it minimizes what's drawn into the larger stores. Mats are collected by Indoor Billboard. They're washed and replaced on a regular basis at Indoor Billboards Tukwila and their Portland sites. ~ The Federal Way site won't be a washing place. It's just a distribution point conveniently located between the two. It will be used to collect the used mats and then issue new ones for the region's customers around here that are being built up as part o~ the greater economy that this region is enjoying. The warehouse building, then, is of necessity, designed so that it can accommodate the turning radius for the trucks that are going to be used as part of the distribution to bring in the mats, exchange them for the INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 new ones and go out. That's why the turning radius is established here. That's why we need the setback in order to accommodate that in our building design. Like the City, I'm going to walk through how it is that we meet the criteria for the variance. And first of all, the Examiner is well familiar with what a variance is supposed to do. In effect, it is a safety bough that allows projects to move forward. It allows the use of property where if the code was strictly applied would deprive that property of privileges commonly enjoyed by other properties in the same vicinity. And it's to ease the impact of specific zoning restrictions which may create a hardship without a corresponding public benefit. And the City has already testified that there would be no public detriment to granting the setback. So we feel we're half way there with that admission. Walking through each one of the subject criteria, I - want to differ from the City's suggestion that we are attempting to place our entire justification on the prior approval granted to Lot 8. In fact we've got more than one arrow in our arsenal here. The City made a special note of saying that a different zone was in effect when Lot 8's approval was granted. We would encourage you to keep that in mind INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because we think that that in fact grants us a'basis or provides additional justification for our variance. And that is that the need for the variance is prompted by the City's adoption of both the minimum lot size and standardized setbacks for the new BP Zone. And the BP Zone was created after this lot was already made. The BP Zone standards are calculated for lots which are at least 1.5 acres in size. So in fact our lot became undersized for the new BP Zone and their corresponding setbacks not as a result of anything we did, but as a result of City's action in adopting a new zone. Thus, we were not the ones that created the need for the variance. I cited in our materials on Page 4 a Spence versus Board of Zoning Appeal. That was pretty much on point with our particular situation. were a couple of different lots. the required minimum lot size. In that situation there They were less than And maybe it was even a little bit more egregious facts because in that case the property owner purchased the property even after knowing that prior variances to the setbacks had been denied. The City there argued that it was a self-inflicted hardship because he knew ahead of time that the minimum setbacks were in place, and that they would apply to this property. INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But the Court accepted the developer's argument that it was not self inflicted, since the zone change took place-after the substandard-sized lot had. been created. So it was not a self-inflicted hardship. Similarly, Indoor Billboard seeks the minimum setback variance only to accommodate and in fact reapportion the setbacks that were intended for a larger sized lot, which are now imposed on a smaller lot. Second, the variance does not constitute a grant of special privilege for a couple of different reasons. First of all, the variance is required in order for this nonstandard-size lot to accomplish the zone's permitted use. In his staff report, the City has argued against the variance. And in their presentation today, they pointed out to the Examiner different buildings withiH the Kits Corner Plat that meet the required setbacks. And, therefore, they're arguing that since that can happen, our variance should be denied. There's a couple of distinctions I think are important for the Examiner to take note of. First of all, those prior buildings were approved prior to the adoption of the current BP Zone and its current setback requirements. And two, the buildings that are out there are not used for the current zone's primary intended use, which INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is warehouse and distribution. Instead, Lot 7 is used for retail sales and for a ballroom dance studio. Lot 5 includes a, professional education center. None of these uses fall within the primary intent of the current BP Zone which is warehouse, manufacturing and distribution, bulk food preparation, equipment storage yards, larger type uses. Of the three lots that I've just cited, only Indoor Billboard's use meets the intent of the current zone. And that use, warehousing,' then requires a site configuration that then in return requires the variance. And in fact we're arguing that Indoor Billboard should not be penalized for attempting to carry out the primary intent of why the BP Zone was in fact adopted. On Page 5, I cite another case where Shelter For Homeless Women wanted to expand and provide some ~ counseling facilities. They picked a site that was zoned for commercial use. The application initially was rejected because it did not meet the minimum size for this type of use, and it didn't meet some of the other criteria. But what the Court stated -- and in that situation, the variance required, actually, higher standards than what Federal Way does. It required proof that the physical characteristics of the property is such that it could not be used for any permitted use, unless the variance was granted. INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 However, the variance was approved and held up on appeal because in looking at the site and in looking at how it fit'within the development of that area and the fact that it had been stagnate for quite a while, the Court determined in fact that this was the only way for the property -- by granting the variance was the only way for the property to be used for a permitted productive use that was allowed within the zone. There's a couple of Other reasons.why this isn't a grant of special privilege. First of all, one, since the BP Zone is new and in fact imposed upon the Kits Corner Plat, other property owners will have notice and opportunities to fight the BP Zone criteria because they will be able to develop it after having notice that the zone has these minimum setbacks. In addition, it is consistently, in fact, less intrusive than the variance approval granted to Lot 8. I do want to spend a bit talking about how that variance approval for Lot 8 fit within the context of the zoning development within the area. Kits Corner Business Park has 16 lots, and it was approved by King County in 1979. And all of the p~operties that are currently developed on the site were approved by King County prior to incorporation by the City, with the exception of three. One of which is our INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 24 1 2 5 8 9 10 11 12 13 14 15 16 1'7 18 19 20 21 22 23 24 25 site, the Indoor Billboard site. The City allowed reductions to setbacks to one of the two sites. The city in fact has only approved two sites until now. And of those two sites, one the City allowed substantial reductions to the setback variance. That was under the old provision where the director of community development was granted the authority To determine the required yard landscape and buffers for development where the lots were less than 5 acres. The intelligent thing about that code provision is that this accommodation was in precise recognition of the disproportionate impact that standard setbacks would have where you have a minimum lot size of 5 acres, and then that was going to be imposed on a substandard lot. Our Exhibit 2 describes what those setbacks were for Lot 8. The front yard was reduced from 50 to 20. The side yard reduced from 20 to 10. And the rear was reduced from 20 to 10. This compares to ours as follows, where in fact we're meeting and exceeding: Again, the largest variance that we're requesting is still minimal. It's the 20 to 10 feet. greedy than Lot 8. So we're certainly not being more In fact we're providing a lot more open space than Lot 8 did. I'm encouraging the Examiner to take a look at the INDOOR BILLBOARD N.W. V/LRI~/qCE REQUEST, 12/8/98 - Hearing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City Staff Report, which is Exhibit 2. It pro%ided the justification for granting Lot 8's variance. And it's exactly on'point for why we need the variance here today. I'm going to apologize for quoting, but it's so on point. The reduced setbacks are considered appropriate for proposed manufacturing and office uses on this parcel due to the constraint of the small lot size. Adequate building structure is maintained, and the modified setback creates a pedestrian-friendly site. So, again, right on point that it's because of the smaller lot size. Next criteria, variance is necessary due to special circumstances relating to size, state, or topography. Our variance is due to the lot's narrow, rectangular - configuration which was established prior to both the City's mandatory setbacks and the City's new zone which permits warehousing facilities as a permitted use. Warehouse facilities require access, parking and dock door configurations necessary to accommodate the truck traffic. And Indoor Billboard had and has a reasonable expectation to rely on setbacks which will allow their property to be developed in a use permitted in the zone. Since the lot is undersized, the new required INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 setbacks have a greater disproportionate adverse impact and the variance would mitigate against the adverse impact. Next criteria, the City has conceded and agrees with us that granting the variances would not be -- (End of side A of tape.) (Beginning of Side B of tape.) Improvements in the vicinity and so unto which it's located -- the purpose of setbacks, you know, looking behind the reason for the code, the purpose of the setback is to ensure adequate separation, light and air. Our point is that given the generous buffer of setbacks that we've provided around the balance of the building, our variance meets the underlying purpose of.why ~ setbacks are in place. Along the west property line, that's the one where the 10-foot setback is required, the a adjacent property' is already developed. And that building is located approximately 50 feet-from the property line. So there's a building separation of a total of 60 feet. So substantial building separation will be assured even with the variance. I'm going to move real quickly through how this variance is also consistent with the Hearing Examiner INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Process For Decisional Requirements. There are five criteria. Three of which both the City and the Applicant agree are met. I'll spend a little bit of time on the remaining two. First of all, is the project consistent with the comprehensive plan? In our materials on Page 7, we've cited the specific comprehensive plan designation that talks about why the Business Park Zone was established. It's a new designation, substantially encompassing uses once large, undeveloped and underdeveloped parcels to take advantage of the convenient access to I-5 and Highway 18, meaning they're going to use big trucks and need the required turn around on these sites. It goes on to say that the Business Park designation is intended to capture the demand for higher quality, mix-use business parks which permit the light manufacturing, warehouse distribution and offices needed to accommOdate warehouse ~nd distribution. We're exactly providing that precise use. The comprehensive plan talks about how revisions to design and performance standards will address site development, lot size, setback and modulation. It's unfortunate that the administrative approval previously granted when it was a 5 acre minimum lot size was not retained under the new zone. Our proposed INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 warehouse distribution use precisely seeks to carry out the intent of the comprehensive plan. We want to achieve the BP Zone designation of the warehouse use, despite being hampered by a lot that really wasn't designed to be a warehouse use. We would present the City's choice as follows: Ihe City has a choice, A, either to grant a modest setback variance which allows the site to be developed for the warehouse use consistent with the comprehensive plan, cr to erode the zone's intent by tolerating uses such as those on Lot 5 and Lot 7, which detract from a true Business Park intent. So we argue that our variance actually is the choice which is most consistent with the City's comprehensive plan. ~ I want to respond a bit to the staff report where the City argues that the variance would detract from community development. That's their argument for sayi~.~ why our variance does not meet this particular code. I want to do two things. First of all, in the City's presentation today, they said quality means you have adequate setbacks. Yet, previously in their presentation, they admitted that the setbacks would not be detrimental, and, therefore, are adequate. They're also placing most of the argument on a INDOOR BILLBO~tRD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 projected speculative, cumulative effect if additional variances were granted. We point out that our app!icatioh should be judged and approved or denied on its own merits and not on whatever may follow in the future. But even more importantly, the Examiner should be reminded that out of the 16 lot flat, only 3 lots, including Indoor Billboard remain undeveloped. Therefore, there's not a huge chance that this is going to be a variance -- that setback variances will spread like wildfire throughout the area, since after our lot there's only two to be developed. Number 2, consistent with applicable provisions of the chapter, the staff admits that the project meets this criteria. Number 3, it meets health, safety and welfare purposes. In this particular one, our position is that we meet the purpose of setbacks to allow adequate separation and the Staff Report on Page 7, Mr. Hess admitted that no City department or agency objected to the variance. However, again, he cites the alleged cumulative effect in arguing that this criteria isn't met. However, we believe when correctly viewed on its own merits, Indoor Billboard meets this criteria. The remaining two criteria are that it has adequate streets and utilities, the City and we agree that that INDOOR BILLBOA/~D N.W. VARIANCE REQUEST, 12/8/98 - Hearing 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 criteria is met. And on the last criteria, proposed accesses, optimal location, again, we agree. Based'upon the analysis and based upon the particular facts of this particular lot, we're asking that the Examiner grant the variance. HEARING EXAMINER: Do you have anything else you want to present? MR. POE: My name is A_lan Poe, 400 'West Gowe Street, Suite 310, Kent, 98032. I have a copy of the 341st Place site plan, if that would be a -- HEARING EXA}4INER: the site plan as Exhibit 3. MR. POE: Sure. I'll mark To my knowledge, the permit has been issued on that site, and the site is being sold to somebody who intends to develop it as shown on the plan. The dockside function of the development is essential to Indoor Billboard going forward with the project. use. That's a key ele~nent of their The other thing I'd like to point out is that required landscaping for the site and the zone is 5 feet on the side yards. We can accommodate 10 feet and also intensify that landscaping as is required. Those are the elements I wanted to emphasize. HEARING EXAMINER: Do you have INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 '21 22 23 24 25 any -- I don't want to refer to them as statistics -- but any criteria as far as turning radius of trucks that would be s~rving the site and the necessity of the turn-around areas and driveway widths and that type of thing that are proposed? MR. POE: 30 feet is typically a reasonable driveway width, so we're a little bit narrow on that. 100 feet is the standard space in front of dockside doors, industry standards. In this case, Indoor Billboards trucks are sightly smaller than a 5-foot tractor-trailer rig. They're not full-sized vehicles. We've minimized that as much as we can. We still need to provide a reasonable width of building in front of the docks, so that they can use the floor space a little bit to unload the trucks. Narrowing the building down to 35 feet or something from the truck docks is really not practical, not an economical building size. Accommodating the dockside doors is really essential. or two-story -- HEARING EXAMINER: Is this a one- MR. POE: One-story building with a two-story office at the southeast corner, a small office. I believe (inaudible..) HEARING EXAMINER: Okay. Does the INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Applicant have anything further? Mr. Hess, do you wis~ to respond to the Applicant's presentation? MR. HESS: Just a couple of points. Number 1, noting the original Manufacturing Park Zone, when the City was incorporated, that zoning required size of 5 acres and had a front yard setback of 50 fee~, a side yard setback of 20 feet, a rear of 20 feet. The Business Park Zone has a lot size 1.5 acres, sm that was reduced from 5 acres to 1.5 and the front ya~ of 25 and a side of 20 and a rear of 20. So the side yard stayed the same the past, what, 8 years, 9 years, since the incorporation. And that has been available for any applicant or proposed developer for this Kits Corner Plat to meet design a building to fit the lot, Lot 6. The Applicant is stating that because he has less than 1.5 acres, that the variance should be granted. Well, if you have less than 1.5 acres, you should have another variance for the reduced lot size. The Business Park Zone did provide an out for this. If the Applica~5 could establish that -- let's see, the development muss contain at least 1.5 acres, provided, however, this use may be conducted on a lot of any size if -- two criteria: A, the lot lines defining the lot are lawfully created prior to March 1st, 1990. And Kits INDOOR BILLBOA/~D N.W. VA/~IANCE REQUEST, 12/8/98 - Hearing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Corner Plat was a plat acquired in 1990, so that would be met. And, B, the Applicant has not owned any contiguous-lot or lots since March 1st, 1990. For example, if the Applicant owns an adjacent lot to the east, that would make a lot of difference in this case. And then what all of the Applicants for Lot 6 should do in this case would be to submit a written testimony that he did not -- he or she did not own any property surrounding the lot and comply with that. So the point being is that if you can't meet the criteria, Criteria 13, under the BP Zone, warehouses for wholesale distribution and so forth then, they would have to seek a variance for the lot size. And that would also have an impact on this variance. There is one more point on the site plan. This fs a drawing that has been proposed for development. It could very well be that the building line could be where the red dot, red dash line, is located. The only reason that it is located where it is, is because of the request of the Applicant desiring a specific building size. That is the reason for the variance is the Applicant wants a larger building on this size of lot. The question is, why can't the'Applicant build a building that would meet the setback and still accomplish what he wants? They've presented the reasons INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for that. We understand that. It's the City's point of view that it can be done by meeting-the building setback. It's just a matter of arranging the building footprint on the lot. HEARING EXAMINER: Mr. Fewins. MR. FEWINS: Thank you. For the record my name is Greg Fewins. I'm principal planner with the City of Federal Way Department of Community Development Services. As opposed to introducing additional testimony at this time, what I would request is that the record be left open for a period of two weeks, so we have an opportunity to respond to the December 7th, '98, legal brief provided this morning by Ms. Lake and provide those comments to you in writing. HEARING EXA/~INER: Okay. MR. FEWINS: Thank you. HEA/~ING EXA~MINER: Thank you. Ms. Lake, do you have anything further you want to add? MS. LAKE: Sure. Just real briefly. Three things the City said, number 1, they pointed out that the setbacks have been essentially the same for the side yards in the MP and BP Zone. I guess that's exactly our point. The side yards did remain the same. In other words, the setback areas were deemed appropriate for lot sizes of 5 acres under the MP and INDOOR BILLBOARD N.W. VD=RIANCE REQUEST, 12/8/98 - Hearing 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1.5 acres under the BP, neither of which minimtun lot size our particular lot can meet because it was established prior to either one of these zones coming into place. So all we're asking.for in a nutshell is to slightly scale down the side yard variance in order that it be proportionate to the size of our substandard lot. The second point, Mr. Hess mentioned the criteria about not owning the contingent parcels. We did submit that letter to the City previously. And I'll present that as an exhibit here today, just so we see that that "T" has been crossed and that that "I" has been dotted. Thank you. HEARING EXAMINER: I'll mark this letter from Eric Swanson to, I guess, Jim Shulevitz, - dated September 25th, 1998, as Exhibit 4. MS. LAKE: Thank you. Lastly, the City's position is that we should simply design a building that would be within the setbacks. Mr. Poe has presented testimony as to why, if we're going to be a .warehouse, which is the permitted use, then we need particular designs that will accommodate the trucks and the turn-around radius. In response to Mr. Fewins for leaving the record open, since the burden is on us, if the Examiner is INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inclined to leave the record open, we ask that'that schedule include both something from the City and a reply date, for us. HEA/~ING EXAMINER: Thank you. Fewins? Mr. MR. FEWINS: I didn't understand that last exhibit, and I'm not confident that we have a copy of that in our record. If we could get a copy -- HEARING EXAMINER: The last exhibit was a statement that the Applicant did not own contiguous parcels. MR. FEWINS: We have a copy? Okay. Thank you. HEARING EXAMINER: I will go ahead and take the matter under advisement. I would go ahead and grant the City's request to leave the record open for two weeks for response. And also, Ms. Lake, I'll grant you -- how much time would you like to respond? MS. LAKE: Five days. HEARING EXAMINER: Why don't we just make it a week then? And that will be five working days and then a week for the Applicant to respond. So let's see, the City's'response would be due -- today is the 8th -- the 22nd. That's going to put you over Christmas. Do you want to -- INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. LAKE: That's fine. HEARING EXA~MINER: Ms. Lake' s response would be due the 29th. HEARING EXAMINER: Okay. I would like to thank Mr. Hess and Ms. Lake for a very well-organized presentation on this variance matter. This is one of the finest variances I've heard from both sides. And I appreciate it very much. And hopefully the decision can be also well organized. So thank you, very much. And we're now adjourned. (Proceedings adjourned. ) INDOOR BILLBOARD N.W. VARIANCE REQUEST, 12/8/98 - Hearing 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (STATE OF WASHINGTON) I, SUZAArNE L. BURRUSS~ ) ss CCR'#BU-RR-US-L285MO, a County of Pierce ) duly authorized Notary Public in and for the - State of Washington residing at Tacoma, do hereby certify: That the foregoing hearing of December 8, 1998, was taped and thereafter was transcribed under my direction; That I am not a relative, employee, attorney or counsel of any party to this action or relative or employee of any such attorney or counsel and that I am not financially interested in the said action or the outcome thereof; That I am herewith securely sealing the said transcript and promptly delivering the same to ATTORNEY CAROLYN LAKE. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this day of , 199 Suzanne L. Burruss, CCR, Notary Public in and for the State of Washington, residing at Tacoma. Certificate 39 V. LETTER OF APPEAL Williams, Kastner & Gibbs PH,C LAW FIRM January 29, 1999 Carolyn A. Lake Attorney cu Law lakeca~vkg, corn, 1000 Financial Center 1145 Broadway Plaza Tacoma, Washington 98402-3502 Telephone (253) 593-5620 Tacoma (206) 628-2420 Seattle FAX (253) 593-5625 99999.999 Mr. Stephen K. Causseaux Jr. Hearing Examiner c/o Greg Moore Community Development Director City of Federal Way 33530 First Way South Federal Way, WA 98003 ~RECEcvED By DEV~OPMENT D'E'p~ Re: Appeal of Examiner Decision Variance Request of Indoor Billboard NW FWHE ~98-12 Dear Mr. Causseaux: This office represents Indoor Billboard NW, applicant for permit and variance to construct a 15,380 square foot warehouse and distribution building at 1916 South 341st Street Place in Federal Way, (the "Site"). I. Statement Identifyinq Decision Beinq Appealed This Site's development is contingent upon approval of a variance to slightly reduce two building setbacks, pursuant to Federal Way City Code (FWCC) 22-864 (building setback criteria) and FWCC 22- 198 (variance criteria) by (a) reducing the building's west setback from 20 to 10 Feet, and (b) by allowing a refuse dumpster to be placed five feet from the east property line within the 20 foot side yard setback area for a limited area; the entire remainder of the site's 314 foot east property line will exceed the 20 foot setback requirement, having a 48 foot setback. The Examiner held a hearing on the variance on December 8, 1998, at which time the City and the Applicant presented testimony and analysis. The record was left open for the City's written response (submitted December 22), and for the Applicant's reply (submitted December 29). By decision dated January 15, 1998, the Federal Way Examiner denied Applicant's variance request, and we timely appeal. A copy of the Decision is attached. We enclose the relevant appeal fee; the Applicant will prepare the transcript, in lieu of posting transcript preparation fees. T-64412.1 Seattle Tacoma Mr. Stephen K. Causseaux Jr., HE January 29, 1999 Page 2 II. Statement of Alleqed Errors The Appellant contests the following Findings of Fact, Conclusions of Law and alleges the hearing errored in his decision denying the variance: 1. Finding of Fact #8, including but not limited to the Examiner's finding that the City Council has maintained 20 foot yard setback requirements for the Kitts Corner Business Park lots since 1990. 2. Finding of Fact ~10, including but not limited to the Examiner's finding that "Applicant in the present use is able to use lot 6 in accordance without (sic) the BP classification with the necessity of a variance", as no evidence in the record exists to support that finding. 3. Finding of Fact #11, including but not limited to the Examiner's finding that "lot 6 may be developed consistent with other uses in the area and with uses authorized in the BP classification without the necessity of a setback variance," as no evidence in the record exists to support that finding. 4. Finding of Fact #12, including but not limited to the Examiner's finding that granting the Applicant's variance could establish a precedent and that such a precedent would not be consistent with the public health, safety and welfare. 5. Finding of Fact #13, including but not limited to the Examiner's finding that the Applicant's request doesn't meet the test for a variance. 6. Conclusions #2, #3, and #4. III. Appellant's Information Appellant: Carolyn A. Lake Williams, Kastner & Gibbs PLLC Attorneys for Appellants Allan Poe, P.E. Poe Engineering, Inc. T-64412.1 Mr. Stephen K. Causseaux Jr., HE January 29, 1999 Page 3 Address: 1145 Broadway Plaza suite 1000 Tacoma, WA 98402 253-593-5625 253-593-5620 Fax: Phone: RESPECTFULLY SUBMITTED this /dayof January, 1999. WILL~& GIBBS PLLC By Carolyn A. Lake WSBA $ 13980 Attorneys for Appellant T-64412.1 T-041 P.01 (253) 661-4000 FEDERAL WAY, WA 98003-6210 Job-?lg J=nua=y 15, 1999 Alan Poe Poe Engineering 400 West Gowe Street, Suite 310 Kent, Washington 98032 RE: VARIANCE REOUEST OF INDOOR BILLBOA~ ~6 Dear Applicant: Enclosed please find the Report and Decision relating to thc above- entitled case. Appeal Rights are attached for your information. Very tru.ly yours, -eTEP~EN K. CAUgSEAUX, HEARING EXAMINER SKC/ca All partie~ of record City of Federal Way Received Jan-ZO-99 15:53 From-ZO§gZZZ?I1 To-~/ILLIAIvlS KASTNER & G Page O1 CITY OF FEDERAL WAY OFFICE OF THE HEARING EXAMINER IN THE MATTER OF: INDOOR BILLBOARD N.W. VARIANCE REQUEST PROCESS IV ) ) FWHE~ ) ) ) ) 9R-12 I. SUMMARY OF APPLICATION Thc applicant is proposing to build a 15,380 square foot building and has r~qucstexl two side yard vnrianees: 1) to reduce it building setbitek from 20 feet to 10 feet, and 2) to reduce a dumpster setbaok from 20 feet to 5 feet. This proposal is delineated on a site development plan received August 10, 1998. The applicant's building site is located in a BP (Business Park) zoning district. Pursuan to FWCC gee. 22-864, mirdmum structural setbacks for the warehouse and wholesale distribution facilitic~ are: 25 to 50 feet for tho front y~rd and 20 feet for the side and rear yards. II- PROCEDURAL INFORMATION Hearing Date: Decision Date: December It, 199g January 15, 1999 At the hearing the following presented testimony and evidence: 1. Marion Hess, City of Federal Way, Temp Senior Planner Carolyn Lake, attorney for applicant, Two Union Square, 601 Union Street, Seatxle, WA 98101 Alan Poe, Poe Engineering, applicant, 400 W. Gowe Street, -quite 310, Kent. WA 98032 4. Greg Fewins. City of Federal Way, Senior Plann.e.r At the hearing the following exhibits were admitted as pa~ of thc official proceedings: record of these 1. Staff Report with all attachments Received Jan-ZO-99 15:53 From-ZO69ZZZ711 To-WILLIAMS KASTNER & G Page OZ January 15, 1999 2. Carolyn Lake's memorandum w~th attachnmms Letter from Eric Swanson to Jim Shulevitz Memorandum to Examiner from City of Federal (response) IH. FINDINGS The Hearing Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. Thc Community Development StaffReport sets forth genial findings, applicable policies and provisions in this matter and is hereby marked as Exhibit "l" and incorporated in its entirety by this reference. All appropriate notices were delivered in accordance with the requirements of the Federal Way City Code (FWCC). On September 13, 1979, King County approved the 16 lot commercial plat of Kits Comer Business Park. At the date of approval and at the date of incorporation of the City of Federal Way, the plat was located within the Manufacturing Park (Mt') zone cla.ssifieation of the King County Code. The MP classification required n 25 foot setback from street property lines, but no other setbacks (to include side yard) and had no minimum lot size. The Federal Way City Council adopted its initial zoning ordinance on the same date as the incorporation (February 28, 1990), and placed the business park within tho City's Manufacturing Park (MP) zone classification. The/VIP classification required a minimum lot size of five acres and a side yard setback of 20 feeT. In 1995 the City Council adopted an arcs-wide zone reclassification mad placed the plat within the Business Park (BP) zone classification. The BP classification requires a minimum lot size of 1.5 ac. res and a minimum side yard setback of 20 feet. Doth the MP n.nd BP ulnzaifi.ationa ¥catcd ~xlating. substandard lots approved by King County. Th~ ~4~plie~nt h~ a po~e~or~ owrmrr, hlp intexe~t in lot 6 of the Kits Comer Business Park subdivision and de~ires to improve the vacant lot with a regional warehou.ee an~ distribution -.facllily-{'d~;lo:ioor magnetic floor mar~. Lot 6 is a rectangular, 1.08 acre pm:cCi, 1.:;9-2;::; :.;; width and 314 feet in depth. The lot poses no constraints to development as it has no Critical areas or significant trees and the grade varies between 1% and 3%. The 20 foot side ye4'. d setbacks restrict the buildable portion of the lot to 110 feet in width. Setbacks consume Received Jan-20-99 15:~3 From-2OBgZZ27'I1 To-WILLIAMS K^STNER & G Pal~e 03 INDOO~ ~ILL~OA~D ~anuary 15, 1999 13,030 sque, re feet or approximately 2g% of the lot, and staff m~tirrmtee that the appIieartt could construct a building with a footprint of 14,130 square fcct without a variance. The applicant is proposing a 15,380 square foot building located ten feet fi'om the west side property line and a refuse dum~ster five feet fi'om the east side property line. To construct said building the applicant needs a ten foot variance from the,we.st side yard setback and a 1 ~ foot variance fi'om the east side yard setback. The appli.~an.t'testified that it neeeled to locate the building within the setback to accommodate the turning radius of its trucks which will access' bays on the east side of the building. The applicant has offered increased ]and..sca~ buffering along the west property line to mitigate the reduced setbacks. The app ~/l~m~. ~'th~ testified that its trucks require a 30 foot wide driveway and a 100 foot wide s~noarcl maneuvering area, and that compliance with thc side yard setbacks does not allow a~easonable 7fling width. aTI~bases its variance request on the following: The history of the zoning which at the date of plat approval had no minimum lot size and no side yard setback, but now requires a 1.5 acre minimum lot size _and 20 foot side yard setback. The City's previous action in gnmtlng substantial yard variances for a smaller lot in the Kits Comer Business Park. The variance i~ necessary to extahlish the use which is authorized in the BP zone classification. Because the reasons advanced for the variance address both side yard setback reductions together, findings and conclusions set forth hereinatler address both variance requests as well. The imposition et zoning regulations as do other restrictions adopted pursus, n~ re the polie~ power may reduce the value of certain lands and cause financial loss to some owners. The imposition of a financial loss is not necessarily a hardship which will justify the granting of a varlanoo to mitigate ~uoh ]oa~, A~ etated in Lewi~ v. lMedinn, g7 Wn. 2d 19 (1976): It is a well-settled law that zoning is a constitutionally permissible exercise of the police power...Although the plaintiffs herein might ~uffer c,nslderable financial loss - a frequent situation in zoning matter$ -~that woul_d-0~t-render the zoning ordinances invalid, g7 Wn. 2d 19 at 21,22. As stated in ~udersons. American I,aw of_Z0_Bi~. 4m Edition, Section 20.22: Eeceived Jan-ZO-99 15:53 From-ZOGgZZZ?ll To-WILLIAMS KASTNER I G Page 04 -u41 P.US/IZ Job-liB INDOOR BI~BOARD January 15, 1999 Page - 4 10. The power of a board of adjustm:nt to vary the ~ppli~tion of the zoning resulatiom is regarded as one to he used sparingly. Pecuniary IoN to ma individual rarely ha~ been held ~u~oient to support Proof of unnecessary hardship is not ~lequate if it ~hows ,merely that. some financial loss has been suffered, if ~ applicant has retained ~ome beneficial use of his land...Tne fact that devel.?pment of the applicant's land has been rend-red less convenient or ~ore expensive by the imposition of use restrictions does not necessarily constitute a hardship which will justify the granting cfa variance... Th~ Federal Way City Council h~ had two opportunities to consider tho setbacks for the Kits Comer Business Parle since incorporation ha 1990. On both occasions the City Council, while vesting substandard lots, has maintained the 20 foot side yard setback requirement and has o~ered no relief to substandard lots. Many lots throughout the city within the BP classification are similarly affected, and the applicant should consider relief from the City council. As pointed out in Exhibit 5, the City's responding memorandum, lots 3, 4, $, 7, and 10 ha the Kits Comer Business Park vary in width between 150 feet and 160 feet and are improved with structures which meet all setback requirements. However, the applicant correctly asserts that the City granted an administrative variance for lot g of the Kits Comer Business Park, which redtmed the front yard setback from 50 feet to 20 feet. the side yard setback from 20 feet to ten feet, and the rear yard setback from 2O fee~ m ten feet. These reductions occurred during the time lot 8 and area were within the MP classification which required a minimum five acre lot size. A review of the Kits Comer plat establishes that lot g contains 27,496 square feet as opposed to lot fi which contains approximately 47,100 square feet. The yard setback variances granted to lot g enabled it to accommodate a reasonably sized structure and a use authorized in the MP classification. However, as found above, the applicant Le able to eon~truet a reasonably sized building on lot 6 without the necessity of a varianve. While the width of the lot might adversely impact the applicant's desire to use the site for a warehouse distribution facility, pages of uses authorized in the BP classification, many which ftc not require large track maneuvering areas. While the lot dimensions and setbacks might prohibit one authorized use, the lot will aooomrnodate many u~ee authorized in the BP ¢la~i~cation. Lot g is akin to thc 7,391 ~quare foot, triangulac shaped lot. addre.~sed by the Court of Appeals in Hober6 _ ~ff i-I/.~'~rg lot was substandard as it was located y. Bellevue. 76 Wn.-ApP'357 (,1994). within a zone classification requiring a minimura 10,000 square fooi lot size. The yard setbacks and the irregular shape allowed a triangular shaped building footprint of 624 square f~et. The Court approved a variance for the I-Ioberg lot to allow construction ora reasonably Received Jan-ZO-gg 15:53 From-ZO69ZZZTli To-9/ILLIAIAS KASTN£R & G Pai'e 05 INDOOR ~ILL~C]ARD k January 15, !999 Page - 5 to use lot 6 in accordance ~thout ~e BP classification with the necessity of a v~mce. Anderson'&~cric~ Law of Zoning. 4~ Edifiom S~ction 20.28 stat~s: Mere irregularities in the e6ntour of a tract, however, ~lo .not prove unnecessary hardship if they arc not dissimilar from.those of other . tracts in the district, and if they do not-preveut, acvei,_.pment consistent with the ordinance. A variance to consuuct iin aaio repair shop in a residential zone is unwarranted where the triangular lot in issue can be used for.[_~orrning rcsidchcc. Irr~gulm-lty and shape is not the test of u~da~n~ble hardship; the test is whether the land caT, be used f°r ~e' ~ then cites Philadelphia Zoning Board_of A~u~ment v Durk;n (2crib's. tlng Company, 293 A 2d 622 (1972), wherein the court found that testimony by a real estate expert that the size of the lot in question, its setback restrictions, and the accompanying off- street parking regulations would severely limit the industrial uses for which it was zoned supported a variance to authorize construction of a gasoline station. Thus, to establish unnecessary hardship the applicant would need to show that the size and dimensions of lot 6 and the setbacks unreasonably interfere with the ability of said lot to accommodate many uses authorized in the BP classification. Such would be difticuk since many lots wk_hin Thc Kits Comer Business Park support uses authorized in the BP classification. 11. To obtain a variance to the required side yard setback the applicant has the burden of showing that the request ~att~fies the criteria set forth in Section 22-198 FWCC. Findings on each criteria are hereby made as follows: Ac The requested variance.will constitute a grant of special privilege inconsistent with the limitations upon uses of other properties in the vicinity and zone. As previously found, the administrative variance granted for lot 8 does not establish a precedent for other lots in the Kits Comer Business Park as it is readily distinguishable in size and was granted when the area was within the MP classification. Lot 6 may be developed consistent with other uue~ in the urea ~nd with uge~ authorized in the ttP classification without thc necessity of a setback variance. The variance is not necessary because of special circumstances relating to the size, shape, topograph,~, location, or surroundings o£theP?rcel; and the variance is not nccc=am--y to providd thc parcel with uae fight, and pri¥1lcg-:,.~ ,pcrmlttccl to other properties in the vicinity. As previously found, the reciangular shaped, flat, 1.08 acre parcel is simitar in dimension and size to other lots within the Kit-ts Comer plat and has no building constraints. The fact that its width may not accommodate a large Received Jan-ZO-99 15:53 From-ZO69ZZZlll To-WILLIAmS KASTNER & G Page 06 INDO0~ ~ILL~O~D NW Pa~e - ~ truck mancuvorlng area and ~ wn~housu docs n~ cr~aw fl~ mpcci~l ~ip~xmstnnzcs necessitating a vmance because of the many uses authorized by the BP classification which lot can accommodate. Co Granting the variance will not be materially detrimentaL, to thc l'ublic welfare or injurious to property or improvement m thc ~e~-flllly:Tn-ffh-pl31ice a; has offered to prov. ide additional, more intense landscaping along the west property line to buffer the impacts of the building on adjacent properties. Bs~blishiug the proposed use on the site is authorized by the BP classification, and based upon othe~ uses in the area, would not adversely irnpagt either thc area or adjac, cmt properties. The special circumstances of the ~ubject property are created by the actions of the owner. Ag stated in the applicant's reply memorandum (Exhibit _ .): In thc present case, the need for the variance is prompted t,y the City's adoption of both a minimum lot siz~ and neat setback standm'd~ after the Kit~ Comer plat had bc~n approved. The lot was created in 1979 by a previous property owner under a different jurisdiction and different zoning code. As pointed out by Anderson' s, supra., and by HobeLa v. Bellevue, supra., in extreme cases zoning restrictions can ~'reate the special circumstances or hardship necessary to support a variance. Howev.-r, in the present case, thc applicant has not shown that thc lot size and dimensions and the yard setbacks prohibit a reasonable usc of thc site consistent with rite BP said zone classification. 12. The applicant must also establish that the variance request satisfies the Proc ~s IV decisional criteria set forth in Section 22-445(c) FWCC. Findings on each criteria an. hereby made as l'ollows: Granting a variance which does not satisfy the criteria set forth in ',he FWCC is not con.~i.~tcnt with thc City of F~deral Way Compn;hv. nMw Plan. The z,,pin_g zcgulaticrn~ implement the Comprehensive Plan which emphasizes quality ~f development, building location, landscaping, and design. The applicant cites erwood v. Cwant Connty_ 40 Wm App. ¢.96 (I 985). wherein the Court of Appeals d,'.elined to follow .Lin~ v. Wbat¢om Coun~ Board of. Adjustment, al Wn. App 4r~ 7 (!978), which 'LWX~'~cd c~qncc'm regarding thc precedent established by granting variapc.'-~ ,.;-b;~:h had no legal basis. However, the most recent decision addressing the precedential nature of variances is St. Clair v. Skaait County, 43 Wn. App Il 2 (1986), which declined to follow Shea~ond v_ Graht County., supra. The SLCI fi2 Court held as Received Jan-ZO-6g 15:53 From-ZO66ZZZTll To-WILLIAmS KASTNER & G Pale 07 INDOOR BILLBOARD January 15, 1999 Page - 7 follows; 13. Likewise, we assume that the developed substandard lots on Big Lak~ predate the praaant manlng, and aa Rt. Clair pointa out, thc aggmgatlon and minimum lot slz$ eta,rotes apply . countywide. If Meamb~r wore granted a variance because substandard properties near hers are developed, the Board would be bereft, it seems, of valid grounds ,~aon which to deny such applications in the future. Meamber cites Sherwood vLOrankCoun _;y, 40 Wn. App. 495, 599 P.2d 243 (1985). To the extent that Sherwood can be read as approving of a variance became properties in the surrounding area enjoyed similar, but nonconforming uses, we decline to follow it. 43 Wn. App 122 at 128. Be ~ting the applicant a variance where the request does not sa~s~ tho criteria (,,~~lish a eirywide preee, dem for substandard lots wiTtfln the BP classification. Thc requested variance is consistent with all other applicable provisions of *hz FWCC. Co Granting the variance wo?d~fi~~tent with the public health, safety, and welfare if it established a/precedent for futu~ variances for substandard lots which could undermine the ove~l land ~s~ i~l~t and development goal of thc BP zone cl~sification. D. The streets and utilities in the area are adequate to serve the proposed tree. E. The proposed access to the subject property is sufficient. Professor Richard L. Settle discusses the proper use of variances in his book ~ l,~gnd Use and Environmental Law and Practice. In Section 2.9, Professor Settle states follows: Properly used, then, the variance is a means of fine tuning a zoning ordinance by relieving ~peelfle land pareel~ of re~trlctions which serve no public pm-po.s.e ~.a?d thus unnecessarily burden the parcel In fact. the variance zenerally has not been used properly. Too often lay members of boards of adjustments or other bodies a~ianed the Received Jan-ZO-99 15:53 From-ZO69ZZZ?ll To=WlLLIAIdS KASTNER & G Page 08 INDOOR DILL~OAi%D January 15, 1999 Page - 8 vm-ima~ xCun~tion huv~ ~ardcd thc v~rlmaco ~ a ~n~ral dispensing device av~lable to relieve l~d o~e~ of inconveniem zo~g res~om whenever nei~bors f~l to resist loudly enou~. ~e promiaeuo~, ~iplefl ~g of v~ i~ ~i~n~ much of · c bl~ for ~o o~en d~l peffo~ce of~adifion~g. ~le' in legfl ~eo~ a v~ce ~y be gr~t~ ~n~y when ~e pe~nent ~dg~ ofbo~ ~e enab~ng gt ~d zo~g~ordin~ee ge met, such st~d~ds o~en ~e disreg~ded by ~e ~ad~nis~afive bodics...It is ~e c~afive effect of hundre~ or ~ou~ds of v~ces in a co~~ w~eh ~de~es the reg~ato~ p~ose ~d p~eiples of ~e ~ning ordin~ee ~d eompr~enslve pl~... In theory, variance from a restriction should be granted only where a loT's special characteristics, which do not generally occur in thc district, cause the restriction to impose on the lot special burdens which provide no public benefit. Thus, it is not sufficient that the lot ~ufferg a hardship; land use resulati~ly causes hardship. It must be shown that the hardship i~unnecess&ry~ecause it provides n~fit, ~serve~ no publle~tu:pas~, but in addition to unnecessary hardship, it also must be shown that the unnecessary hardship is the result of special circumstances of the lot which zoning drafters apparently had not contemplated. If a zoning restriction imposes unnecessary hardship gencredly in a zoning di~fi-ict, the appropriate relief is a zoning amendment or constitutional challenge .... The applicant's request does not meet the test for a variance as explained by Professor Settle above. While the side yard setback requirement does impose a hardship, the hardship provides a public benefit and publtc purpose of providing open space and landscaping between buildings in a business park. Furthermore. the hardship is not the result of the speoial characteristics of the lot which the City Council apparently had not eontempIated. The Council imposed a 20 fc~crt ~id¢ yard actba~k upon adoption of tho Mi) classification upon incorporation, and again in 1995 when it adopted the BP zone classilicarion. The side yard setback affects all undersized lots within the BP zone classification equally, and perhaps the applicant's remedy ig to seek relief through the City Council. From the foregoing findings the Hearing Examiner makes the following conclusions: Received Jan-lO-99 15:53 From-ZO6gZzZ?ll To-WILLIA~IS KASTNER & G Pa~e Og '~i~-"" ~" , .... r~ul.,.u~ua~c~ ruuu ZU68ZZZ/il T-041 P.10/12 Job-?i6 INDOOR BI!;T:ROAR9 ~ Januaz-y 15, 1999 Page - 9 1. The Hearing Examiner has jurisdiction lo consider an~ decide the issu~ pr~=nt~ by this request TI~ x~quc~'t ~or ~ ~arlan~ to ~= ~quired 20 ~ot si~ y~ set~ ~ ~low co~ti~ of a bufl~g ~n f~c~ ~om ~ wc~ pro~ ~ ~d to Io~ a d~ter five f~t. ~om ~ e~ pm~ l~e do~s not sads~ ~e c~tefia s~t fo~ in S~on 22-19~ ~cC. Ap~oving ~c v~ wo~d co~timte a ~t ofs~ ~vilege ~ia~t with o~ lo~. ~d is not n~es~ted b=ca~e of special c~c~ees relating to ~e si~, shape, topo~ap~, lo~fio~ or s~o~dings of ~ subject pmpe~. ~e speci~ circ~s~ces cited by the appSc~t ~e ~c result of the ac~o~ of~ o~r ~ ~pfing to develop ~ site ~th a re~o~ w~ho~e ~d ~s~bufion f~iliW w~oh ~s a ~gc ~ck m~cuvcring ~ea. ~or~ ~g ~ v~cc could b~mc mge~ly ~mon~ to ~e pubic wel~ ~ s~cs ~ a~reced~ for ~e v~oos for ~bs~d lo~ ~ the BP cl~sificalon. The applies.ut has net established that the variance r~quest is consistent with the City of Fexieral Way Comprehensive Plan and tha~ it is consts~em with th~ public health, ~afcty, and welfare. 4. Thc requcsxed variances should be denied. The request for a variance to reduce the side yard setbacks for lot six of thc plat of Kits Comer Business Park is hereby denied. DATED TI-IlS _ / .~AY OF January, 1999. .-~ ~ Hearing Examlncr TRANSMITrED THIS [~q~DAY OF January, 1999, to the following: Alan F. Poe Poe Engineering 400 West Gawe Street, Suite 310 Kent, Washington 98039 Received Jan-ZO-99 15:53 From-ZO892ZZ?ll To-WILLIAmS KASTNER & a Pal8 10 JA~-20-99 1G:O0 From:Bo~le&C )PLLC 20G92227 T-041 P.12/12 Jo6-719 PR.OCE$8 IV' Rights to Appeal Decisions of thc hearing Examiner may be appealed by any person who is to recoive a copy of that d~cision under FWCC Section 22-443. ' The appeal, in the form of a letter of appeal, must be de/li~r0i t~*..he Department of Community Dcvelopm, cnt Services within fourteen (14) ea!~dar d~y~ aftra' ~ issuance of the nearing Examiner s decision. Ihe letter of appeal must contatn.'''-------~ A statement identifying the decision being appealed, along with a copy of the decision; A statement of the alleged errors in *.he Hearing Examiner's decisi°n, including specific factual finds and conclusions of the Hearing Examiner disputed by the person filing thc appeal; ~--cl-- o The appellant's name, address, telephone number and fax number, and any other information to facilitate communications with the appellant. The person filing the appeal shall include, with the letter of appeal, the lee established by the City of th= costs of preparing a written transoript of the hearing (or in the alternativo, the appellant may prepare l. he rransoript at his or her sole costs from tap¢~ of~pro¥idcd by the City).The appeal will not be accepted unless it is accompanied by th~equired fe&{and cost (or agreement of the appellant to prepare the transcript). ~ Appeals from laho decision of the Hearing Examiner will be heard h~/'~he City~gil./) The decision of City Council is the final decision of the City. ~ ~ The action of the City in granting or denying an application under this article may be reviewed pursuant to RCW 36.70C in the King County Superior Court. The Land Use Petition must be filed within twenty-one (21) calendar days after The final land use decision of th~ City. VI. WRITTEN COMMENTS RECEIVED THERE WERE NO WRITTEN COMMENTS RECEIVED FROM PROPERTY OWNERS, OR THE PUBLIC IN GENERAL, FOR THE INDOOR BILLBOARD VARIANCE HEARING EXAMINER PUBLIC HEARING. VII. STAFF ANALYSIS OF ALLEGED ERRORS CITY OF FEDERAL WAY DEPARTMENT OF COMMUNITY DEVELOPMENT SERVICES STAFF EVALUATION VARIANCE REQUEST APPEAL INDOOR BILLBOARD NW Federal Way File No. UP498-0010 April 9, 1999 I. BACKGROUND The variance request is for a proposed 15,380 square foot building to be located on a vacant lot 10 feet from a side yard property line, and to locate a dumpster five feet from a side yard property line. (The zoning code requires a 20 foot side yard setback in the BP Business Park zone.) The property is 1.08 acres in size and is located at 1916 South 341st Street (Lot 6, Kit's Comer Business Park, see Exhibit 1). The application date chronology is presented as follows: Variance Preapplication Review Variance Application Filed Variance Application Public Hearing Variance Public Hearing Continued to Hearing Examiner's Decision Issued Appeal Filed City Council Public Hearing March 5, 1998 August 10, 1998 October 27, 1998 December 8, 1998 January 15, 1999 January 29, 1999 April 20, 1999 II. HEARING EXAMINER APPEAL PROCESS See Exhibit 2 for the appeal process procedure. A summary of the appeal process is presented as follows: A. The City Council holds a closed record appeal hearing, as defined in RCW 36.70B.020(1). B. The hearings of the City Council are open to the public. C. The scope of the appeal is limited to the specific errors raised or factual findings disputed in the letter of appeal. Do E The City Council shall consider only the following: 1. The information received from the Director of Community Development Services pursuant to Federal Way City Code (FWCC) Section 22-450. 2. The record before the Hearing Examiner, including exhibits and evidence admitted by the Hearing Examiner. The appeal argument by the appellant, and any person who commented to, or testified before, the Hearing Examiner, or other persons, provided that appeal argument shall address only the issues raised by the letter of appeal and evidence, if any, allowed under FWCC Section 22-451 (c)(4). 4. Any new evidence that was not presented to, or considered by the Hearing Examiner, but only if that evidence: ao Relates to the validity of the Hearing Examiner's decision at the time it was made and the party offering the new evidence did not know and was under no duty to discover, or could not reasonably have discovered, the evidence until after the Hearing Examiner's decision; or b. The Hearing Examiner improperly excluded, or omitted, the evidence from the record. The person filing the appeal has the responsibility of convincing the City Council, by a preponderance of the evidence, that the Hearing Examiner's decision contains an error of law, or that its findings of fact or conclusions are incorrect. After considering the matter as provided in FWCC Section 22-451 (c), the City Council shall, by motion approved by a majority vote of members present, take one of the following actions: If the City Council determines that the disputed findings of fact and conclusions are the correct findings of fact and conclusions, the City Council shall affirm the decision. ° If the City Council determines that the disputed findings of fact and conclusions are not correct and that correct findings of fact and conclusions do not support the decision of the Hearing Examiner, the City Council shall modify and reverse the decision. Indoor Billboard Variance Appeal Page 2 Staff Evaluation/UP498-0010 III. ANALYSIS OF VARIANCE REQUEST APPEAL An "appeal letter", dated and filed January 29, 1999, timely appealed the Federal Way Hearing Examiner's "denial" decision for the Indoor Billboard NW Variance Application. (Hearing Examiner File #98-12/City File #UP498-0010). The appellant, Indoor Billboard NW, represented by attorney Carolyn Lake, contests and alleges error in the City of Federal Way Hearing Examiner's decision and findings of fact on six counts listed as follows: "Finding of Fact #8, including but not limited to the Examiner's finding that the City Council has maintained 20 foot yard setback requirements for the Kit's Comer Business Park lots since 1990." The Hearing Examiner Finding of Fact #8 states: "The Federal Way City Council has had two opportunities to consider the setbacks for the Kits Comer Business Park since incorporation in 1990. On both occasions the City Council, while vesting substandard lots, has maintained the 20 foot side yard setback requirement and has offered no relief to substandard lots. Many lots throughout the city within the BP classification are similarly affected, and the applicant should consider relief from the City Council." (Hearing Examiner's Decision FWHE #98-12, page 4.) Staff Comment - The Hearing Examiner is referring to two buildings located in the vicinity of Lot 6 of Kit's Comer Business Park. One existing building is located directly south across 341 st Street on Lot 5. This building is occupied by Intellipass/ Insurepass. It was established after a site plan approval (SPR95-0002) that was approved by city staff on September 11, 1995. The building meets the 20 foot yard setbacks on both sideyards. The other building has not been constructed to date and is proposed to be located on Lot 9. This building was proposed to be a Tupperware warehouse and wholesale building. The proposal was approved by the Hearing Examiner on July 10, 1995, and the proposed site plan with a 9,972 square foot warehouse building met the 20 foot side yard setbacks on the .89 acre lot. (Hearing Examiner File FWHE 95-8/City File UPR94-0012) The building on Lot 7 (1908 South 341st Place), immediately west of Lot 6, was built in 1985 under King County zoning standards. This building complies with the 20 foot side yard setback standards of the BP zone. Indoor Billboard Variance Appeal Page 3 Staff Evaluation/UP498-0010 The Trinity Broadcasting Company building (1909 South 341 st Place), located on Lots 3 and 4, was built in 1985 and meets the 20 foot side yard setback standards of the BP zone. The Steven Electric building at 34008 18th Place South, located on Lot 10, was built in 1985 and meets the 20 foot side yard setbacks of the BP zone. "Finding of Fact #10, including but not limited to the Examiner's finding that 'Applicant in the present use is able to use lot 6 in accordance without (sic) the BP classification with the necessity of a variance', as no evidence in the record exists to support that finding." The Hearing Examiner's Finding of Fact # 10 states, in part: "The yard setback variances granted to Lot 8 (Kit's Comer Business Park) enable it to accommodate a reasonably sized structure and use authorized in the MP classification. However, as found above, the applicant is able to construct a reasonably sized building on Lot 6 without the necessity of a variance. While the width of the lot might adversely impact the applicant's desire to use the site for a warehouse distribution facility, the Federal Way City Code (FWCC) contains 15 pages of uses authorized in the BP classification, many which do not require large truck maneuvering areas. While the lot dimensions and setbacks might prohibit an authorized use, the lot will accommodate many uses authorized in the BP classification .... However, the applicant in the present case is able to use Lot 6 in accordance without the BP classification with the necessity of a variance .... Thus, to establish unnecessary hardship the applicant would need to show that the size and dimensions of Lot 6 and the setbacks unreasonably interfere with the ability of said lot to accommodate many uses authorized in the BP classification. Such would be difficult since many lots within the Kit's Comer Business Park support uses authorized in the BP classification." (Hearing Examiner Decision, page 4.) Staff Comment - The appellant is stating the above Hearing Examiner finding is not a fact, "...as no evidence in the record exists to support that finding." On the contrary, the public record contains several evidences to support the Hearing Examiner's finding. These factual evidences are: A map based on aerial photography showing four buildings in close proximity to Lot 6 meeting the 20 foot side yard setback of BP zone. These buildings are: Intellipass/Insurpass Professional Educational Center (1925 South 341 st), Trinity Broadcasting (1909 South 341st), the 1908 building, and Steven Electric (34008 - 18th Place South). All building uses are allowed in the BP zone. Indoor Billboard Variance Appeal Page 4 Staff Evaluation/UP498-0010 The Community Development Services Department Report submitted to the Hearing Examiner contained written documentation and two maps in the Appendix. One map (Exhibit B) is the "Existing Land Use Map" identifying the same four buildings listed in the paragraph above showing these buildings meeting the 20 foot side yard setback of the BP zone. The other map (Exhibit D) is the "site plan" for the existing building directly south of Lot 6 (across South 341 st Street) delineating the Intellipass/Insurpass building meeting the required 20 foot side yard setback. The Detailed Vicinity Map projected onto the screen during the December 8, 1998, Hearing Examiner public hearing depicted four buildings in the Kit's Comer Business Park Plat that meet the 20 foot side yard setback for the BP zone. "Finding of Fact #11, including but not limited to the Examiner's finding that 'Lot 6 may be developed consistent with other uses in the area and with uses authorized in the BP classification without the necessity of a setback variance,' as no evidence in the record exists to support that finding." The Hearing Examiner's Finding of Fact # 11 states: "To obtain a variance to the required side yard setback, the applicant has the burden of showing that the request satisfies the criteria set forth in Section 22-198 FWCC. Findings on each criteria are hereby made as follows: The requested variance will constitute a grant of special privilege inconsistent with the limitations upon uses of other properties in the vicinity and zone. As previously found, the administrative variance granted for lot 8 does not establish a precedent for other lots in the Kit's Comer Business Park as it is readily distinguishable in size and was granted when the area was within the MP classification. Lot 6 may be developed consistent with other uses in the area and with uses authorized in the BP classification without the necessity of a setback variance. The variance is not necessary because of special circumstances relating to the size, shape, topography, location, or surroundings of the parcel; and the variance is not necessary to provide the parcel with use rights and privileges permitted to other properties in the vicinity. As previously found, the rectangular shaped, fiat, 1.08 acre parcel is similar in dimension and size to other lots within the Kit's Comer plat and has no building constraints. Indoor Billboard Variance Appeal Page 5 Staff Evaluation/UP498-0010 The fact that its width may not accommodate a large truck maneuvering area and a warehouse does not create the special circumstances necessitating a variance because of the many uses authorized by the BP classification which lot can accommodate. Co Granting the variance will not be materially detrimental to the public welfare or injurious to property or improvement in the vicinity. The applicant has offered to provide additional, more intense landscaping along the west property line to buffer the impacts of the building on adjacent properties. Establishing the proposed use on the site is authorized by the BP classification, and, based upon other uses in the area, would not adversely impact either the area or adjacent properties. D. The special circumstances of the subject property are created by the actions of the owner. As stated in the applicant's reply memorandum (Exhibit __): 'In the present case, the need for the variance is prompted by the City's adoption of both a minimum lot size and new setback standards after the Kit's Comer plat had been approved.' The lot was created in 1979 by a previous property owner under a different jurisdiction and different zoning code. As pointed out by Anderson's, supra., and by Hoberg v. Bellevue, supra., in extreme cases zoning restrictions can create the special circumstances or hardship necessary to support a variance. However, in the present case, the applicant has not shown that the lot size and dimensions and the yard setbacks prohibit a reasonable use of the site consistent with the BP said zone classification." (Hearing Examiner Decision, page 5.) Staff Comment - The applicant's position for the above finding of fact is that it is not substantiated because, "...no evidence in the record exists to support that finding." To the contrary, the Hearing Examiner's Finding for Fact #11 is based on the public record of written documents and public testimony presented at the December 8, 1998, public hearing. Two additional documents were submitted after the public hearing as the Hearing Examiner extended the time period for written comment to be submitted. The 1. ° 3. 4. 5. factual evidence the Hearing Examiner has in the public record is listed as follows: Community Services Department Staff Evaluation for a variance request by Indoor Billboard NW. Carolyn Lake's December 7, 1998, memorandum. Bob C. Sterbank and Marion B. Hess's December 22, 1998, memorandum. Carolyn Lake's December 29, 1998, memorandum. Site plan and vicinity maps identifying existing land use, zoning, and comprehensive plan. Indoor Billboard Variance Appeal Page 6 Staff Evaluation/UP498-0010 "Finding of Fact # 12, including but not limited to the Examiner's finding that granting the Applicant's variance could establish a precedent and that such a precedent would not be consistent with the public health, safety and welfare." The Hearing Examiner Finding of Fact # 12 states: "The applicant must also establish that the variance request satisfies the Process IV decisional criteria set forth in Section 22-445(c) FWCC. Findings on each criteria are hereby made as follows: mo Granting a variance which does not satisfy the criteria set forth in the FWCC is not consistent with the City of Federal Way Comprehensive Plan. The zoning regulations implement the Comprehensive Plan which emphasizes quality of development, building location, landscaping, and design .... Thus granting the applicant a variance where the request does not satisfy the criteria could establish a city wide precedent for substandard lots within the BP classification. B. The requested variance is consistent with all other applicable provisions of the FWCC. Granting the variance would not be consistent with the public health, safety, and welfare it established a precedent for future variances for substandard lots which could undermine the overall land use intent and development goal of the BP zone classification. D The streets and utilities in the area are adequate to serve the proposed use. E. The proposed access to the subject property is sufficient." (Hearing Examiner Decision, page 6.) Staff Comment - The appellant simply alleges this finding is in error without stating any reasons. The Hearing Examiner is required by Federal Way City Code to render a finding on each of the zoning code criteria listed in FWCC Section 22-445(c). However, the burden of proof is upon the applicant to justify the variance and provide supportive facts to each of the criteria (FWCC Section 22-442). Finding 12-A is a key finding as the Hearing Examiner references a recent Appellate Court decision. St. Clair v. Skagit County, 43 Wn. App 122 (1986), which held that: Indoor Billboard Variance Appeal Page 7 Staff Evaluation/UP498-0010 "Likewise, we assume that the developed substandard lots on Big Lake predate the present zoning, and as St Clair points out, the aggregation and minimum lot size statutes apply countywide. If Member were granted a variance because of substandard properties near hers are developed, the Board would be bereft, it seems, of valid grounds upon which to deny such applications in the future. Member cites Sherwood v. Grant County, 40 Wn. App. 496, 699 P.2d 243 (1985). To the extent that Sherwood can be read as approving of a variance because properties in the surrounding area enjoyed similar, but nonconforming uses, we decline to follow it. 43 Wn. App 122 at 128." The Hearing Examiner rightly concludes, "Thus granting the applicant a variance, where the request does not satisfy the criteria, could establish a citywide precedent for substandard lots within the BP classification." (Emphasis added.) In other words, if this particular variance is granted, a precedent would be set citywide for all substandard lots of similar size to Lot 6 in the BP zone. City staff, the Hearing Examiner, and City Council would thereafter be hard pressed to deny any future variance request for the 76 parcels~lots out of 139 BP zoned parcels that are less than 1.5 acres in size. In fact, all applicants for a BP zone variance in the future would use this particular case to justify their application. Indoor Billboard has already tried to use this justification method for granting their particular variance request by submitting the Director of Community Development Services administrative variance determination granting yard variances for Lot 8 of Kit's Comer Business Park (May 9, 1995, letter by Gregory D. Moore). In this particular Indoor Billboard case, the two lots (Lot 6 and Lot 8) are not similar in size or shape, and the 1995 variance approval was accomplished under the MP zone, rather than the current BP zoning. Also, the city adopted a new comprehensive plan in 1996. o "Finding of Fact #13, including but not limited to the Examiner's finding that the Applicant's request doesn't meet the test for a variance." The Hearing Examiner's Finding of Fact # 13 states: "Professor Richard L. Settle discusses the proper use of variances in his book Washington Land Use and Environmental Law and Practice. In Section 2.9, Professor Settle states as follows: '... In theory, variance from a restriction should be granted only where a lot's special characteristics, which do not generally occur in the district, cause the restriction to impose on the lot special burdens which provide not public Indoor Billboard Variance Appeal Page 8 Staff Evaluation/UP498-0010 benefit. Thus, it is not sufficient that the lot suffers a hardship; land use regulation inevitably causes hardship. It must be shown that a hardship is unnecessary because it provides no public benefit, serves no public purpose, but in addition to unnecessary hardship, it also must be shown that the unnecessary hardship is the result of special circumstances of the lot which zoning drafters apparently had not contemplated. If a zoning restriction imposes unnecessary hardship generally in a zoning district, the appropriate relief is a zoning amendment or constitutional challenge...' [Emphasis added.] The applicant's request does not meet the test for a variance as explained by Professor Settle above. While the side yard setback does impose a hardship, the hardship provides a public benefit (fire protection) and provides landscaped open space between buildings in a business "park" (noise buffer, visual buffer, stability of property value). Furthermore, the hardship is not the result of the special characteristics of the lot which the City Council apparently had not contemplated. The Council imposed a 20 foot side yard setback upon adoption of the MP classification upon incorporation, and again in 1995 when it adopted the BP zone classification." (Hearing Examiner Decision, page 7 [Emphasis added].) Staff Comment - The applicant does not give reasons in support of alleging the Hearing Examiner erred in his finding above, other than he simply erred. The burden of proof is upon the applicant to show that the Hearing Examiner erred in this finding. The Hearing Examiner rightly used Professor Richard L. Settle's book Washington Land Use and Environmental Law and Practice as a reference because Settle is recognized as a leading authority on Washington State Land Use Law. The book is widely used throughout the state by hearing examiners and cities's legal staff. The applicant's attorney, in submittals to the Hearing Examiner in support of Indoor Billboard's variance request, cited several variance court case decisions rendered throughout the United States (i.e., Spence v. Board of Zoning Appeals, Supreme Court of Virginia, and, Vitti v. Zoning Board of Adjustment, Commonwealth Court of Pennsylvania). While these cases are interesting, they are not Washington State Appellate decisions and are not binding in Washington. IN addition, they are distinguishable from this case, as the city pointed out to the Hearing Examiner in Bob Sterbank's and Marion Hess's December, 1998, memorandum. The "test" focal point for granting a yard setback variance to a building is realized totally in whether or not the lot possesses a substantial land feature not found on adjacent lots. For example, a lot may have a steep slope or a steep elevated hillside, or a large rock outcropping formation. Indoor Billboard Variance Appeal Page 9 Staff Evaluation/UP498-0010 The appellant simply cannot point to any physical feature of the lot that justifies the variance. Instead, the applicant is requesting the variance simply to accommodate a particular building design. The applicant contests Conclusions #2, #3, and #4, and alleges the Hearing Examiner erred in his decision denying the variance. A. The Hearing Examiner Conclusion #2 is stated as follows: "The request for a variance to the required 20 foot side yard setback to allow construction of a building ten feet from the west property line and to locate a dumpster five feet from the east property line does not satisfy the criteria set forth in Section 22-198 FWCC. Approving the variance would constitute a grant of special privilege inconsistent with other lots, and is not necessitated because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property. The special circumstances cited by the applicant are the result of the actions of the owner in attempting to develop the site with a regional warehouse and distribution facility which requires a large truck maneuvering area. Furthermore, granting the variance could become materially detrimental to the public welfare if it serves as a precedent for future variances for substandard lots within the BP classification." (Hearing Examiner Decision, page 9.) Staff Comment - This conclusion is supported by the Hearing Examiner's findings and the staff evaluation for the Indoor Billboard NW request. The applicant drew a proposed 78 foot by 230 foot two story warehouse/office building on a site plan and placed the building 10 feet from the west property line. The northern one-third of the building is identified as "lease space," and the southern two-thirds is identified as "Indoor Billboard/NW." It appears that the total building will not be occupied by Indoor Billboard and could be reduced in size. Also, the swale could be relocated on the lot and the building moved 10 feet to the east to meet the required 20 foot side yard setback. Simply submitting a proposed site development plan drawing in support of meeting the variance criteria is not reasonable justification. Variances are not based on economic reasons, but rather on "special conditions" inherent to a particular piece of property (lot or parcel). The applicant states the variance request should be granted based on the existing size of the Lot 6 being below the minimum 1.5 acre lot area requirement of the BP zone. FWCC Section 22-198, Criteria No. 2, does reference "size" as being one of Indoor Billboard Variance Appeal Page 10 Staff Evaluation/UP498-0010 ./bur criteria listed. The other three are: shape, topography, and location or surroundings to provide it (Lot 6) with use rights and privileges permitted to other properties in the vicinity and zone. Lot 6 does not qualify for a variance based on shape, topography, and existing uses on surrounding properties because: 1) adjacent lots are of similar shape and size; 2) the topography of Lot 6 is relatively flat and similar to adjacent lots; and 3) all lots within the Kit's Comer Business Park Plat in the vicinity of Lot 6 comply with the BP zone required side yard setback. B. The Hearing Examiner Conclusion #3 is stated as follows: "The applicant has not established that the variance request is consistent with the City of Federal Way Comprehensive Plan and that it is consistent with the public health, safety, and welfare." Staff Comment: The applicant has submitted written evidence in support of granting the requested variance. However, the applicant's statements referencing the comprehensive plan goal and policies for the Business Park Land Use designation is lacking. The applicant did not adequately address the following policy: "Policy LUP35: Encourage quality, mixed use development for office, manufacturing, and distribution centers." (Emphasis added.) The granting of this variance will diminish the "quality" of the landscape environment for a "business park" as described in the land use intent section of the plan. Federal Way has adopted Community Design Standards that encourage ample landscaping between buildings in a park like setting. The exception, of course, would be for lots and parcels that possess certain physical, or topographical, features making the lot/parcel unbuildable unless a variance were granted. The subject Lot 6 does not possess any physical or topographical feature that would support granting a variance. Therefore, the City of Federal Way Comprehensive Plan does not support this variance request. Also, granting the variance is not in the public interest, health, safety, or welfare because it would reduce separation between buildings that could contain hazardous and flammable materials. C. The Hearing Examiner Conclusion #4 is stated as follows: "That the requested variances should be denied." Indoor Billboard Variance Appeal Page I I Staff Evaluation/UP498-00 I0 Staff Comment - Staff concurs with the above conclusion for reasons cited in the "Staff Evaluation For A Variance Request - Indoor Billboard NW." Staff has evaluated several of the applicant's supportive statements in favor of granting the requested variance and finds the following: Supportive Statement #1 - "The need for a variance is prompted by the City's adoption of both a minimum lot size and new setback standards after the Kit's Comer plat had been approved. The BP zone's standard setbacks are calculated for a lot at least 1.5 acres in size." (Carolyn Lake's December 7, 1998, letter, page 3.) Response - The need for a variance, in the case of Indoor Billboard, is not prompted by the adoption of the BP zone standards in 1996, but rather it is prompted by the applicant submitting a drawing with a building located 10 feet from a side yard property line and a dumpster located five feet from a side yard property line, whereas the zoning code standard is 20 feet. The applicant chose to submit this drawing based on a variance approval for Lot 8 of Kit's Comer Business Park and expecting the application to automatically be approved. The applicant could have submitted a drawing with a building designed to fit the 150 by 315 foot lot, and still meet development standards. Supportive Statement #2 -"Of the three lots, only Indoor Billboard's use meets the intent of the current zone. That use (warehousing) requires a site configuration sufficient to accommodate large truck deliveries. That configuration necessitates the variance." (Carolyn Lake's December 7, 1998, letter, pages 4-5.) Response - First, the above statement is not true. The existing uses within Kit's Comer Business Park are permitted uses within the zone and do meet the intent of the zone. Intellipass/Insurpass Professional Education Center (1925 South 341st Street), Trinity Broadcasting Building (1909 South 341st Street), the 1908 building, and Stevens Electric Office building (34008 18th Place South) all are allowed uses in the BP (Business Park) zone. Even if some of the existing uses within the vicinity of Lot 6 in the BP zone are not permitted in the BP zone, these uses were legally established under King County zoning prior to incorporation of the city. These uses are then considered as legally established "nonconforming" uses with pre-existing use rights and can continue to operate as long as the use continues. Second, to design a building and lot layout around the turning radius of a particular type of truck would dictate finding a lot of sufficient size and shape to accommodate both the size of the building and the turning radius of the truck. What if the truck length becomes longer in the future? Indoor Billboard Variance Appeal Page 12 Staff Evaluation/UP498-0010 Third, the criteria for granting a variance does not mention the turning radius o fa truck as one of the criteria for granting a variance. Supportive Statement #3 -"The variance is required due to the lot's narrow, rectangular configuration, which was established prior to the City's adopted mandatory BP setbacks. Warehouse distribution facilities were permitted under both the MP and BP zone. Warehouse facilities require access, parking and dock door configurations designed to accommodate truck traffic. Under the previous MP zone, the code permitted the Community Development Director to establish setbacks appropriate to the site's unique dimensions. Indoor Billboard had and has a reasonable expectation to rely on setbacks established for their site, sufficient to allow the permitted warehouse use." (Carolyn Lake's December 7, 1998, letter, page 6.) Response - First, the variance is not required due to the lot's narrow 150 foot width and rectangular configuration. The variance is triggered by the applicant submitting a site plan drawing with a building located 10 feet from a property line. The dumpster can be relocated so that the five foot setback is eliminated. The site plan can be redesigned with the building located 20 feet from the property line. Warehouse facilities of all types and uses have located in the BP zone and function adequately. Lot 6 could be developed with a warehouse distribution building by a different company and function quite satisfactorily. Second, under the previous MP zone, the Community Development Services Director did grant yard variances to a proposed building on Lot 8 of Kit's Comer Business Park. Since then the zoning has changed to BP and the comprehensive plan has changed to Business Park. The zoning process has also changed requiring the Hearing Examiner to issue decisions for variance request applications. With these changes in the comprehensive plan and zoning code, Indoor Billboard should not expect to be granted a variance based on 1995 variance criteria and process. No property owner with property in the BP zone can automatically expect the City of Federal Way to grant a variance for a lot that does not meet the criteria established by the City Council. The fact is that Lot 6 is a reasonably sized lot to allow any use permitted in the BP zone to be established on it without a yard variance. Supportive Statement #4 - "The 20 foot required setback is met for the majority of the east property line; an exception is requested for the enclosed dumpster area. Thus, the required setback is exceeded for 294 feet of the east line; the variance is needed only for the 20 feet area where the enclosed dumpster reduces the setback to five feet. This very modest intrusion will not be materially detrimental to the Indoor Billboard Variance Appeal Page 13 Staff Evaluation/UP498-0010 public welfare. Along Indoor Billboard's west property line, where a I0 feet setback is requested, the adjacent property already is developed with the building located approximately 50 feet from the property line. Thus substantial building separation will be assured, even with the variance." (Carolyn Lake's December 7, 1998, letter, page 7.) Response - First, the five foot variance for a dumpster is not an issue because the dumpster can be moved to another location and meet all yard setbacks. Second, the location of the building on Lot 7 to the west is not a justification for granting a variance. The criteria for granting a variance for a particular lot/parcel is not how far a building on an adjacent lot is located from a property line, but rather is dependent upon the physical characteristics of the lot and upon how other lots of similar size and shape have been developed in the vicinity. Third, stating that "existing" building separation distances as a reason for granting a particular variance for Lot 6 is not in the public interest and welfare because a building can burn down and be rebuilt on the 20foot side yard setback line. Or, if Indoor Billboard has been granted a lO foot side yard variance, the rebuilt building could submit a request for a lO foot variance and expect to be granted the request. If granted, then the buildings would only be 20feet apart, instead of the 40feet as presently required. A 20foot building separation in a heavy commercial/ light industrial zone is not an adequate building separation for certain uses allowed in the BP zone, such as: hazardous waste treatment and storage facilities, chemical manufacturing and related products, research and development facilities, lumberyard, and retail establishment providing vehicle, boat, service, repair, or painting. L PRMSYS'DOCUM[~N]~UP4O8 00 IO'ttEAPLRPT DOC Indoor Billboard Variance Appeal Page 14 Staff Evaluation/UP498-0010 EXHIBIT ONE - MAPS 1. Indoor Billboard Variance - Vicinity Map 2. Indoor Billboard Variance -Detailed Vicinity Map 3. Business Park (BP) Zoning in Federal Way 4. Parcels with Business Park Zoning 5. Indoor Billboard Variance -Current Zoning 6. Indoor Billboard Variance - Zoning, 1990 - 1996 7. Indoor Billboard Variance - Comprehensive Plan - Current 8. Indoor Billboard Variance - Comprehensive Plan - 1990-1995 City of Federal Way Indoor Billboard Variance - Vicinity Map Map Date: March 26, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. /users/mikes/cdlcl~lan/ibbldg ami ~_~S. 336TH ST. $. 336TH ST. S. 341Sl SI. ~ ' Site j ~ 344TH ~ / / Il Legend: Kit's Corner Business Park Plat Vicinity Map Scale: 1 to 5640 1 Inch equals 470 Feet 0 500 Feet N City of Federal Way Indoor Bill. board Variance Detailed Vicinity Map Map Date: March 26, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. ResidenceI :{esidence Residence i YB: 1985 1916 Electric ! YB: 1985 i 1908 T ~E /Bldg'l Indoor Billdoard 1909 Tdnit~ Intellipasl Broadcasting Professio~l Residence Res~denc~ Open Storage Yard r ST. 1201~ 20~11 Ed Rosendin Electronics 1986 $. 344TH WCHS, Inc. 1988 ST. 1983 YB: 1993 Legend: Kit's Corner Business Park Plat Vicinity Map Scale: 1 to 3000 1 Inch equals 250 Feet 0 200 Feet N /users/mikes/cdlcplanfibdet ami .... . I~_/ / · -,.~ ,-~- \ Des Federal Way Business. Park ~-~' d/~'~ (BP) Zoning ,n ~~" ~ Federal Way ~ ~;dera,~ '1 Mirror' _~ ~-, ~ , Tacoma ~7 ~ ~' i ~ - Map Date: April 2, 1999. City of Federal Way, 33~0 First Way S, Federal Way~ WA 98003 ,~ Legend: (253) 661-4000. N E- ~ City of This map is intended for use as a graphical representation ONLY. The Federal Way City of Federal Way makes no L~ Business Park warran~ as to its amuracy. ~cale: 1 to 62040 Inch equals 5170 Feet (BP) Zoning 0 1 Mile ~~b~ 6~s B~WS~ON City of Federal Way Parcels with Business Park Zoning Map Date: April 7, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. /users/mikes/cd/~lan/ibbp ami Legend: Business Park Parcels SMALLER THAN 1.5 Acres Vacant (28 Parcels) Fully Developed (50 Parcels) Business Park Parcels LARGER THAN 1.5 Acres Vacant (35 Parcels) Fully Developed (26 Parcels) (139 Total Parcels) Vicinity Map Scale: 1 to 11100 1 Inch equals 925 Feet 0 500 Feet N City of Federal Way Indoor Bill. board Variance Current Zoning Map Date: March 26, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. S. 336TH ST. BC 11 10 14 j 13 1 12 I BC lusers/mikes/cdl~lan/ibzone95 aml ~..RM 36180 $. 336TH ST. BP · Site 6 BP S 344TH ,~T, CP-1 Legend: Zoning Boundary Zoning Designation BC - Community Business BP - Business Park CP-1 - Corporate Park RM 3600 Multi-Family Vicinity Map Scale: 1 to 5640 1 Inch equals 470 Feet 0 500 Feet N ~J~J ~" GIS DIVISION City of Federal Way Indoor Billboard Variance - Zoning, 1990 - 1996 Map Date: March 26, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. MP 11 9 14 131 1~ ;. 336TH ST. 33§TH ST. MP 10 ' · Site 7 6 MP s t~44TH ~T q .~44TH ,~T / / / / / / / Legend: Zoning Boundary Zoning Designation ~ BC- Community Business ~-J CC - City Cemter ~ MP- Manufacturing Park IL] RS7.2 - Single Family ~ RM 3600- Multi-Family Vicinity Map Scale: 1 to 5640 1 Inch equals 470 Feet 0 500 Feet N luse rslm ikeslcd/cplan/ibzo negO ami City of Federal Way Indoor Billboard Variance Comprehensive Plan - Current Map Date: March 26, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. 336TH ST. BUSPARK 11 10 9 8 14 13 12 Site 7 6 ARK I c.oMdus I , MULTI 36TH ST. Legend: Comprehensive Plan Designation Boundary Comprehensive Plan Designations: COMBUS- Community Business BUSPARK- Business Park MULTIFAM - Multi-Family CORPARK - Corporate Park Vicinity Map Scale: 1 to 5640 1 Inch equals 470 Feet 0 500 Feet N Gms DIVISION lusers/mikes/cdlcplan/ibbldg aml City of Federal Way Indo. or Billboard Variance - Comprehensive Plan, 1990- 1995 Map Date: March 26, 1999. City of Federal Way, 33530 First Way S, Federal Way, WA 98003 (253) 661-4000. This map is intended for use as a graphical representation ONLY. The City of Federal Way makes no warranty as to its accuracy. lC lC 11 $.336TN ST. 10 &- lC S. 336TH ST. Legend: Comprehensive Plan Designation Boundary Comprehensive Plan Designations B - Business lC - Industrial/ Office Park Vicinity Map FEDERAL Scale: 1 to 5640 1 Inch equals 470 Feet 0 500 Feet N /users/mikes/cJIcclan/ibcompgO.aml EXHIBIT TWO -APPEAL PROCESS 1. Federal Way City Code -Section 22-~.~.9 to 455 22-446 FEDERAL WAY CITY CODE Sec. 22-446. Effect of the decision. The apphcant may not engage in any activity based on the decision until the third wor~ng day after the time to appeal has expired. If the deci- sion is appealed the applicant may not engage in any activity based on the decision until the third worldng day after the city issues a final decision on the matter. If the decision of the hearing examiner is not appealed, that decision is the final decision of the city. (Ord. No. 90-43, § 2(150.70), 2-27-90; Ord. No. 92-133, § 3(150.70), 4-21-92; Ord. No. 97-291, § 3, 4-1-97) Sec. 22-447. Appeals. (a) Who may appeal. The decisions of the hear- ing ex,miner may be appealed by any person who is to receive a copy of that decision under section 22-443. (b) How and when to appeal. The appeal, in '~e form of a letter of appeal, must be delivered to · - department of community development set- vices within 14 calendar days after the issuance of the hearing examiner's decision. The letter of appeal must contain: (1) A statement identifying the decision be- ing appealed, along with a copy of the decision; (2) A statement of the alleged errors in the hearing exa~nlner's decision, including spe. cific factual findings and conclusions of the hearing examiner disputed by the person filing the appeal; and (3) The appellant's name, address, telephone number and fax number, and any other information to facilitate communications with the appellant. (c) Fee. The person filing the appeal shall include, with the letter of appeal, the fee estab- lished by the city. (1) In addition to the appeal fee, the appel- lant shall pay an amount sufficient to cover the cost of preparing the written transcript of the hearing examiner hear- ing, at the cost of $16.00 per hour. (2) In lieu of payment of the transcript prep- aration costs, the appel]ant may choose to prepare the transcript from tapes of the hearing provided by the city, at appellant's sole cost. The prepared trsn~ript shall be submitted to the city hearing examiner secretary for distribution no later than 20 days prior to the date of the hearing on appeal, and shall be accompanied by an affidavit or certification by the appellant as to the accuracy and completeness of the tr~n.~cript. ~ . (3) The appeal will not be accepted unless 'it is accompanied by the required fee and appropriate costs. '(4) The cost of the tr~n.~cript shall be re- funded to the appellant if the appellant substantially prevails on appeal. The city council shall decide whether appellant substantially prevailed on appeal and that decision shall be final. The tran.~cript re- fund shah be limited to actual costs of transcript preparation as follows: a. City staff preparation. Hourly cost of preparation. b. Apt~ellant preparation from tapes. Ac- tual costs as shown by certified re- ceipt or other evidence sufficient to the city. (d) Jurisdiction. Appeals from the decision of the hearing exsmlner will be heard by city coun- cih (Ord. No. 90-43, § 2(150.80), 2-27-90; Ord. No. 92-133, § 3(150.80), 4-21-92; Ord. No. 9%291, § 3, 4.1-97) Sec. 22-448. Notice of the appeal hearing. (a) Contents. The director of community devel- opment services shall prepare a notice of the appeal containing the following: (1) The file number and a brief description of the matter being appealed. (2) A statement of the scope of the appeal, includipg a summary of the specific fac- tual findings and conclusions disputed in the letter of appeal. Supp. No. 17 1384 ZONING § 22-451 .) (3) The date, time and place of the city coun- cil public hearing on the appeal. (4) A statement of who may participate in the appeal. (5) A statement of how to participate in the appeal. (b) Distribution. At least ten calendar days before the hearing on the appeal, the director of community development shall send a copy of this notice to each person entitled to appeal the deci- sion under section 22-446. (Ord. No. 90-43, § 2(150.85), 2-27-90; Ord. No. 92-133, § 3(150.85), 4-21-92; Ord. No. 97-291, § 3, 4-1-97) Sec. 22-449. Participation in the appeal. Only those persons entitled to appeal the deal- sion under section 22-446 may partic/pate in either or both of the following ways: (1) By submitting written comments to the department of comm~nlty development prior to the hearing or to the city council at the hearing. (2) By appearing in person, or through a representative, at the hearing apd mak- ing oral comments directly to the city council. The council may reasonably limit the extent of the oral comments to facili- tate the orderly and timely conduct of the hearing. (Ord. No. 90-43, § 2(150.90), 2-27-90; Ord. No. 92-133, § 3, 4-21-92; Ord. No. 97-291, § 3, 4-1-97) Editor's note--Ordlr~nce No. 97-291, § 3, adopted April 1, 1997, deleted § 22~49. Formerly, such seal/on pertained to scope of the appeal and derived from Ord. No. 90-43, § 2(150.95), 2-27-90; Ord. No. 92-133, § 2, 4-21-92. Sec. 22-450. Staff report on the appeal. (a) Contents. The director of community devel- opment shall prepare documents on the appeal contnining the foUowin~. (1) The staff report prepared for the public hearing before the hearing examiner. (2) The written decision of the hearing exam- iner. (3) Ail written comments submitted to the hearing examiner. (4) A summary of the commenl[.~ and informa- tion presented to the hearing ex~mi,~er, a statement of the availability of the elec- tronic sound recording of the hearing, and a written transcript of the hearing examiner's proceedings. (5) The letter of appeal. (6) Ail written comments received by the de- pa~tment of community development from · ~_. i)~-sons entitled to participate in the ap- '-' ~peal and within the scope of the appeal. (7) An analysis of the alleged errors and the Specific factual findings and conclusions disputed in the letter of appeal. (b) Distribution. The director of comrnllnity development services shall distribute copies of the documents as follows: (1) Prior to the hearing, a copy will be sent to each member of the city council. (2) At least seven calendar days before the hearing, a copy will be sent to: a. The applicant; b. The person who filed the appeal; and c. Each person who received a copy of the hearing examiner's decision. (Ord. No. 90-43, § 2(150.100), 2-27-90~ Ord. No. 92-133, § 3(150.100), 4-21-92; Ord. No. 97-291, § 3, 4-1-97) Sec. 22-451. Closed record appeal. (a) Generally. The city council shall hold a closed record appeal hearing, as defined in RCW 36.70B.020(1). Co) Open to public. The hearings of the dty council are open to the public. (c) Scope of appeal. The scope of the appeal is limited to the specific erroi-s raised or factual findings disputed in the letter of appeal. The.city council shall consider only the following.. (1) the information received from the director of commu- nity development services pursuant to FWCC 22-450; (2) the record before the hearing exam- Supp. No. 17 1385 22-451 FEDERAL WAY CITY CODE inet, including exhibits and evidence admitted by the hearing examiner; (3) appeal argument by the appellant, any person who commented to or tes- tiffed before the hearing examiner, or other per- sons provided that appeal argument shall address only the issues raised by the letter of appeal and evidence, if any, allowed under section 22-451(c)(4); and (4) new evidence that was not presented to or considered by the hearing ex~mlner, but only if that evidence: (i) relates to the validity of the hearing ex~mlner's decision at the time it was made and the party offering the new evidence did not know and was under no duty to discover or could not reasonably have discovered the evi- dence until afar the hearing examiner's decision; or (ii) the hearing ex~m{ner improperly excluded or omitted the evidence from the record. (Ord. No. 90-43, § 2(150.105), 2-27-90; Ord. No. 92-133, § 3(150.105), 4-21-92; Ord. No. 97-291, § 3, 4.1-97) Sec. 22-452. Electronic sound recordings. The city council shall make a complete elec- )nic sound recording of each hearing. ~orch No. 90-43, § 2(150.110), 2-27-90; Ord. No. 92-133, § 3(150.110), 4-21-92; Ord. No. 97-291, § 3, 4-1-97) Sec. 22-453. Burden of proofi The person 6l{ng the appeal has the responsi- bility of convincing the city council by a prepon- derance of the evidence that the hearing ex~mlner~s decision contains an error of law or that its findings of fact or conclusions are incorrect. (Ord. No. 90-43, § 2(150.115), 2-27-90; Ord. No. 92-133, § 3(150.115), 4-21-92) Sec. 22-454. Continuation of the hearing. The city council may continue the hearing if, for any reason, it is unable to hear all of the public comments on the appeal or ff the city council determines that it needs more information within the scope of the appeal. If, during the hearing, the time and place of the next public hearing on the matter is announced and a notice thereof is posted on the door of the hearing room, no further notice of that hearing need be given. (Ord. No. 90-43, § 2(150.120), 2-27-90; Ord. No. 133, § 3(150.120), 4-21-92) Sec. 22-455. Decision on the appeal. After considering the matter as provided in FWCC 22-451(c), the city council shall, by motion approved by a majority vote of members present, take one of the following actions: (1) If city council determines that the dis- puted findings of fact and conclusions'are the correct findings of fact and cenclu-' sions, the council shall Affirm the deci- sion. (2) If city council determines that the dis- puted findings of fact and conclusions are not correct and that correct findings of fact and conclusions do not support the decision of the hearing ex,miner, the coun- cfi shall modify or reverse the decision. (3) Notice of decision: a. General Following the final decision of the city council, the director of comm, mlty development services shall prepare a notice of the city's final decision on the application. To the extent the decision does not do so, the notice shall include a state- ment of any threshold determina- tion made under the State Environ- mental Policy Act, RCW 43.21C, and a statement that the affected prop- erty owners may request a change in valuation for property tax purposes notwithstanding any program of reo valuation. b. D/str~ut/om W~thin two working days after the city council's decision is made, the director of community de- velopment services shall distribute the notice of the decision as follows: 1. A copy will be mailed to the applicant. 2. A copy will be mailed to the person who filed the appeal. 3. A copy will be mailed to any person who submitted written or oral comments to the city councilo 4. A copy will be mailed to the King County Assessor. .) Supp. No. 17 1386 MEETING DATE: April 20, 1999 ITEM# VII CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Planning Commission Replacement CATEGORY: BUDGET IMPACT: N/A X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Letter of Resignation SUMMARY/BACKGROUND: Planning Commissioner R. Dean Greenough Jr. has submitted his resignation from the Planning Commission as required by ordinance. Deputy Mayor Park and Land Use/Transportation Chair Phil Watkins have discussed and recommend appointing Alternate Commissioner Ed Soule to Commissioner Greenough's term which runs until September 30, 2000. CITY COUNCIL COMMITTEE RECOMMENDATION: ;q/'d APPROVED FOR INCLUSION IN COUNCIL ,~' PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # R. DEAN GREENOUGH JR. 3909 SW 317th St. Federal Way, WA 98023 (253) 838-1319 March 18, 1999 Mr. Stephen Clifton Community Development Services Director City of Federal Way 33530 1st Way South Federal Way, WA 98003-6210 Dear Stephen; ! am writing to tender my resi~mation as a member of the Federal Way Planning Commission effective as of April 1, 1999. I am submitting this resignation for personal reasons. Frankly, over the three years ! have been on the Commission ! have been disappointed by the infrequency of the meetings, the lack of substantive impact by Commission activities on the City and the apparent lack of regard for the Commission by the Council. I have enjoyed working with the staff. Tina Piety in particular is a real treasure that I hope the City can hold on to. Sincerely CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Fire Code Adoption and Amendments CATEGORY: BUDGET IMPACT: CONSENT x ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Ordinance, Federal Way Fire Department Memo SUMMARY/BACKGROUND: Adoption of the 1997 Uniform Fire Code is mandated by the State. Local amendments will mostly retain current language instead of adopting state language. The only major amendment is the modification of the definition of ...~.~:.d~.~.!~.~s.t.~.t.~.~.~?.~?.~.~.~..°..n.~..°.~!~.~: ...................................................................................... CITY COUNCIL COMMITTEE RECOMMENDATION: Land Use/Transportation Co~ ttee recommends approval of Fire Code Adoption Ordinance and Amendments CITY MANAGER RECOMMENDATION: ~ ~'~ f APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1 st Reading Enactment Reading ORDINANCE # RESOLUTION # FEDERAL WAY FIRE DEPARTMENT 31617 1st Avenue South Federal Way, Washington 98003-5201 To: From: Subject: Date: Land Use and Transportation Committee Greg Brozek, Assistant Fire Marshal, Federal Way Fire Department 1997 Uniform Fire Code Adoption and FWCC Updates March 30, 1999 Attached is a copy of a proposed ordinance intended to: · adopt the Washington 5tare amended 1997 Uniform Fire Code as required by state law · adopt nine local amendments to the Uniform Fire Code · reinstate modified definition and requirements for high-rise buildings · clean up redundant language in Chapter 8 of the Federal Way City Code (FWCC). The following summarizes what is contained in the ordinance. The UFC requires that residential heating oil tanks be filled with an approved, inert solid material. The tanks are buried in the ground at different levels. At some point in time, the tanks will fail and the ground around the tanks is subject to collapse. Reinstate Modified Definition and Requirements for High-Rise Buildincjs. The initial version of the City code contained provisions that modified the Uniform Building Code and required buildings that were seven or more stories in height to meet the requirements for high-rise buildings (see attached). These modifications to the UBC were a result of meetings between the Federal Way Fire Department and City staff. As ]~ recall, criteria that was considered in making those modifications included 1) the need to provide a reasonable degree of safety to the occupants of these buildings, ~>) the capabilities (personnel and equipment) of the Fire Department to deal with emergencies in these buildings and 3) the fact that the majority of jurisdictions in this immediate area consider a building to be a high-rise when the building height reaches six or seven stories. ,Some years later, these high-rise requirements were removed from the City code. Tt is very possible that these requirements were inadvertently removed. The Fire Department was not consulted. The reasons the modifications were made to the City code initially are still as relevant and reasonable today as they were then. FWCC Housekeepina Amendments following words appear in the codes and regulations adopted by this title, they shall be interpreted as follows: "Administrative authority" as "building official"; "Chief," "Fire Chief," or "Chief of the Bureau of Fire Prevention" as "Fire Chief of the King County Fire District No. 39"; 3. "Corporation counsel" as "City Attorney"; 4. "City Treasurer" · as "Director of Administration and Finance"; 5. "Local Zoning Code" as the "city of Federal. Way Zoning Code"; e "Muni¢ipality"~ and "jurisdiction'~ as "the City of Federal Way". Whenever reference is made to local authority, codes, jurisdiction and similar concepts within the codes adopted by this title, interpretation shall render such reference applicable to the applicable city designation, jurisdiction and authority. Section 6. There is hereby created a new Chapter 15.08 of the City of Federal Way Municipal Code to be known as Buildinq Code. Section 7. There is hereby created a new section 15.08.010 Buildinq Code adopted of the City of Federal Way Municipal Code to read as follows: 15.08.010 Buildinq Code adopted. The Uniform Building Code (UBC), ~1988~'i~f~10~ including Appendix Chapters 11 .(AgrlcuI~ure Building), 12, Division II (Residential for Impaired Persons), 32 (Reroofing), 49 (Patio Covers), 55 (Membrane Structures), 57 (Regulations Governing Fallout Shelters) and 70 (Excavation and Grading), and the Uniform Building Code Standards, 1988 Edition, both as published by the International Conference of Building officials, are adopted by this reference as if DAS0116601 Storage or laundry rooms that are'within Group R division 1 occupancies that are used in common by tenants shall be separated from the rest'of the building by not less than one-hour fire-resistive occupancy separation. For Group R Division 1 occupancies with a Group B division 1 parking garage in the basement or first floor, see Section 702 (a) . For attic, space partitions stops, see Section 2516(f). and draft Exterior and. interior doors and windows opening onto a common corridor, stairway or similar area serving 5 or more dwelling units shall be protected as specified in Section 3305(h). Section 16. There is hereby created a new section 15.08.100 UBC Section 1807 amended of the City of Federal_Way Municipal Code to read as follows: 15.08.100 UBC Section 1807 amended. The title of Section 1807 of the Uniform Building Code is amended to read as follows: ~!.~PECIAL 'PRgVI.S~ONS:';:,FO,,R.,"%ALL :.'BUILDINGS '.SEVEN ~i-OR MORE i;, STORIES.,.IN../{EIGHT. Section 17. There is hereby created a new section 15.08.110 UBC Section 1807(a} amended of the city of Federal Way Municipal Code to read as follows: 15.08. 110 UBC section 1807 (a) amended. Section 1807(a) of the Uniform Building Code is amended to read as follows: ~.S ect ion':~ 807~(a ) :'?-~ ;~ ~S cope ~%~'{~.Th i~.~ ~-ign.: ~~D ,~%~DDroved'. ?:;' spr~nkl er ? ction is. There is hereby created a new section DAS0116601 -8- 15:08.120 UBC Section 1807(g) amended of the City of Federal Way Municipal Code to read as follows: 15.08.120 UBC Section 1807(g) amended. Section 1807(g) of the Uniform Building Code is amended to read as follows: Section 1807(q) Smoke Control. Natural or mechanical ventilation for the removal of products of combustion shall be provided in every story and shall consist of one of the following: Panels or windows in the exterior walls which can be opened remotely from an. approved location other than the fire floor. Such venting facilities shall be provided at the rate of 20 square feet per lineal feet of exterior wall in each story and shall be distributed around 'the perimeter at not more than fifty (50) foot intervals. Such windows or panels and their controls shall be clearly identified. When a complete and approved automatic sprinkler system is installed, the mechanical air- handling equipment may be designed to accomplish smoke removal. Under fire conditions, the return and exhaust air shall be moved directly to the outside without recirculation to other compartments of the building. The exhaust air-handling system shall provide a minimum of one exhaust air change each ten (10) minutes for the compartment involved. Provisions shall also be made in the air- handling system to provide positive air pressure in the unaffected compartments on the fire floor in addition to providing positive air pressure on the floor above and below the fire floor. The positive pressure air-handling system must be capable of maintaining a positive pressure of 0.05 inch of water column. The air intake(s) shall be located to minimize the possibility DAS0116601 -9- of smoke intake. Any other approved design which will produce equivalent ,results. Section 19. There i~ hereby created a new section 15.08.130 UBC Section 1907 amended of the City of Federal Way Municipal Code to read as follows: 15.08.130 UBC Section 1907 amended. The title of Section 1907 of the Uniform Building Code is amended to read: Section 20. There is hereby created a new section 15.08.140 UBC Section 2905(f} amended of the city of. Federal Way Municipal Code to read as follows: 15.08.140 UBC Section 2905(f~ amended. Section 2905(f) of the Uniform Building Code is amended to read as follows: Section 2905(f) Drainaqe. Provisions shall be made for the control and drainage of surface water around buildings. Adequate provisions shall be made to insure that underfloor spaces remain free of running or standing water by the installation of drains. As a minimum, such drains shall be installed around the perimeter of the building at the footings. Additional drains may be sufficient size to adequately convey water to an approved location, but shall be a minimum size of 4 inches. Provisions shall be made to prevent the drainage system from becoming blocked with soil. Section 21. There is hereby created a new section 15.08.150 UBC Section 3202 amended of the City of Federal Way Municipal Code to read as follows: 15.08.150 UBC Section 3202 amended. The first DAS0116601 -10- DRAFT ORDINANCE NO. 99- AN ORDINANCE OF ~ CITY COUNCIL OF ~ CITY OF FEDERAL WAY, WASHINGTON, AMENDING CtIAPTER 8 OF THE FEDERAL WAY CITY CODE AND ADOPTING THE 1997 UNIFORM FIRE CODE. (AMENDING ORDINANCES NOS. 90-:53, 92-127, AND 92-14:5) "WHEREAS, the City of Federal Way is required by RCW 19.27.031 to adopt the State of Washington Uniform Fire Code as adopted or amended by the State Building Code Council; and WHEREAS, the Federal Way City Council adopted the Uniform Fire Code on 2/13/90 and 6/16/92, in Ordinance Nos. 90-33 and 92-143; and WHEREAS, In 1998 the State Building Code Council adopted the International Fire Code Institute's ("]~FCI's") 1997 Uniform Fire Code, which superseded the 1994 Uniform Fire Code, and required that Washington cities and counties adopt the 1997 Code; and WHEREAS, the Federal Way City Council is authorized by the Federal Way City Code ("FWCC") to adopt amendments to the FWCC; and ORD # , PAGE I WHEREAS, the Federal Way City Council is authorized by RCW 19.27.040 to adopt amendments to the Uniform Fire Code, so long as the Fire Code's nfinimum performance standards and the objectives of RCW 19.27.020 are not diminished; and WHEREAS, on April 5, 1999, the City Council's Land Use and Transportation Committee considered adoption of the IFCI~s 1997 Uniform Fire Code, with amendments, and moved to forward the Code and amendments to the full City Council; and WHEREAS, on__ and, , 1999, the City Council considered proposed changes to Chapter 8 of the FWCC, relating to adoption with 'amendments of the IFCI 1997 Uniform Fire Code, and determined that adoption is necessary to protect the public health, safety and welfare; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. The index to Chapter 8 of the Federal Way City Code is amended as follows: Chapter 8 FIRE PREVENTION AND PROTECTION" Article I. In General Sec. 8-1. ((~~qnz~))Purpose Sec. 8-((3))2_. Interpretation. ORD # , PAGE 2 Sec. 8-4, Alteration repairs addition to building Sec. 8-5. Fire protection of high-rise buildings Secs. 8-((~))6--8-25. Reserved. Article IL Standards Division I. Generally Secs. 8-26--8-35. Reserved. Division 2. Administration Sec. 8-36. Authority to adopt rules and regulations. Sec. 8-3((~r))7. Additional conditions. Sec. 8-3((9))8. Liability. Sec. 8-((40))39. ((Appeals-)) Ll.niform Fire Code section 103.1.4 amended- Board of Appeals. Secs. 8-4((-1-))0--8-50. Reserved. Division 3. Fire Code Sec. 8-51. Code adopted. Sec. 8-52. Amendments. Sec. 8-53. New materials, processes or occupancies which may require permits. Sec. 8-54. Structures over water. Secs. 8-55--8-65. Reserved. Division 4. Fire Alarms and Sprinkler Systems Sec. 8-66. Definitions. ORD # , PAGE 3 ((Sec.o-,, ° ~",. Put-cost.)). Sec. 8-6((8))7. Life safety/rescue access. Sec. 8-6((9))8. Fire detection system. Sec. 8-((:70))69. Installation. (("-- 3-71. *' .....: .......: .... J -'J:': .....'--:'~:--- )) Secs. 8-7((~))0--8-90. Reserved. Article l]]. Smoke Detectors ((Sec. §-91. D¢C,-dtior, s.)) ((Sac. ,%92. Er~orc¢iiicnt.)) ((Sec. 0°-93. Pcnaky.)) ((§ec. ,%94. Nordial>ility of city.)) ((sec ° ~ ' .... "-~'~ ........ :-- ~)) Sec. 8-9((6))!. Testing and maintenance. Sec. 8-9((:~))2. Transfer of dwelling unit. Sec. 8-9((8))3_. Removal or tampering. Secs. 8-9((9))4--8-120. Reserved. Article IV. Fireworks Division 1. Generally Sec. 8-121. Definitions. Sec. 8-122. Findings of fact. Sec. 8-123. Implementatio.n of statutes. ORD # , PAGE 4 Sec. 8-124. Enforcement. Sec. 8-125. Exception. Sec. 8-126. Sale of fireworks unlawful. Sec. 8-127. Possession, use and discharge of fireworks unlawful. Sec. 8-128. Use of fireworks in public parks and on public land. Sec. 8-129. Special effects for entertainment media. Secs. 8-130--8-140. Reserved. Division 2. Permits Sec. 8-141. Required display of fireworks. Sec. 8-142. Application for public display permit. Sec. 8-143. Permit fees. Sec. 8-144. Issuance; nontransferable; voiding. S ecs. 8-145--8-170. Reserved. Division 3. Fireworks Display Regulations Sec. 8-171. Compliance. Sec. 8-172. State-licensed pyrotechnician required. Sec. 8-173. Permit required; contents. Sec. 8-174. Plan view of site. Sec. 8-175. Reinforcement of fire protection by city units. Sec. 8-176. Removal of debris, trash. S cc. 8-177. Disposal of undischarged fireworks. Sec. 8-178. Fire extinguishers, blanket required. ORD # , PAGE 5 Sec. 8-179. Revocation of permit. Sec. 8-180. Areas of public access. Section 2. Chapter 8, Article I, of thc Federal Way City Code shall be amended as follows: Sec. 8-1. ((I'merpt~atioat))Purpose. The purpose of this chapter is not to create or otherwise establish or designate any particular class or _m-oup of persons who will or should be especially protected or benefitted by the terms of this chapter. Sec. 8-((-k)) 2. Interpretation. (a) Whenever the following words appear in the codes and regulations adopted by this chapter, they shall be interpreted as follows: (1) Administrative authority shall mean the building official. (2) Chief, fire chief or chief of the bureau of fire prevention shall mean the fire chief of the (~.Gr, g" ......:-- "'-'-' ~ No. 39)) Federal Way Fire Department. (3) City treasurer shall mean the director of administration and finance. (4) Corporation counsel shall mean the city attorney. (5) High-rise buildings shall mean all buildings seven or more stories or hax4~ floors used for human occupancy_ located more than 55 feet above the lowest level of fire 0epartment vehicle access (((5-))) (~6_) Municipality and jurisdiction shall mean the City of Federal Way. (((-6))) 71~ Board of appeals shall mean the heating examiner appointed by the city. ORE) # , PAGE 6 (b) Whenever reference is made to local authority, codes, jurisdiction and similar concepts within the codes adopted by this chapter, interpretation shall render such reference applicable to the applicable city designation, jurisdiction and authority. Sec 8-3. Smoking Areas. The fire chief is empowered and authorized to order the owner or occupant in writing to designate smoking and nonsmoking areas and to post those areas with appropriate signs as defined and required in RCW 70.160 as it relates to the W~hin~on Clean Indoor Air Act. Sec 8-4. Alterations. repairs and additions to buildings. The provisions of this chapter shall apply to all buildings which are altered or repaired one or more times during any 70-month period, where the value of the alterations or repairs during that period exceeds 50% of the building's assessed value as determined by the King County_ Auditor as o£the date the first permit application for such alterations or repairs is submitted to the City, Any addition to an existing structure shall be considered new construction subject to the provisions of thiS division. Sec 8-5, Fire protection of high-rise buildings. High-rise buildings shall be provided with fire protection systems in accordance with Uniform Building Code sections 403.2 through 403,10 o. nd Uniform Building Code Chapter 9 a? adopted by the Federal Way City Code. Sees. 8-((3))_66-8-25. Reserved. ORD # , PAGE 7 Section 3. as Follows: Chapter 8, Article II, Division 2, of the Federal Way City Code shall be amended DMSION 2. ADMINISTRATION* See. 8-36. Authority to adopt rules and regulations. (a) The city shall adopt roles and regulations for the implementation of this article, including: ~ (1) Procedures to assure that building permits for structures conform to the requirements of this article. (2) Procedures to assure that these standards shall be reviewed as part oFthe subdivision, planned unit development, rezone, conditional use and unclassified use permit processes. (3) Procedures to assure that a report of fire protection impacts is submitted in all cases where a proposed structure or land use is regulated. ORD # , PAGE 8 (((4) (((-b)))L~ Procedures to allow for hydrant spacing requirements to be relaxed by a~ much as 50 percent pursuant to the Uniform Fire Code, except where such allowances would unreasonably reduce fire protection to the area or structures served. (((6) (b) No less than one copy shall be available for public inspection and review in the fire department office or the building department. The city may offer the rules and regulations for sale for a reasonable cost to cover printing and handling. ((S ---' -; -- - ¢~;. 8 37 "' ' Sec. 8-3((8))7. Additional conditions. ORD # , PAGE 9 (a) All condominiums shall have the following wording in the recorded declaration of covenants and a copy of'the document shall be provided to the fire ahie£and the building official: (1) In the event that any unit should be equipped with a sprinkler system, nothing shall be hung fi.om the sprinklers comprising a part of the system nor shall any such sprinklers be painted, covered, or otherwise changed, tampered with or altered. (2) Prior to any alteration, amendment, modification or change thereof, the owners or their agents will submit such proposed alteration, amendment, modification or change to the fire chief or designee for approval and agrees to comply with all applicable sprinkler requirements. Sec. 8-3((9))8. Liability. (a) The express intent of the city council is that responsibility for compliance with the provisions of this article in regard to fire protection availability to a specific development shall rest exclusively with the permit applicant and their agents. ORD # , PAGE 10 (b) The city council expressly recognizes there are limited public funds available for implementation and enforcement of the provisions of this article and for the establishraent of fire suppression capability by the fire ((district))department. The city council also recognizes that the level of services these public funds can support must be balanced against the economic impact of the costs for these services. Consequently, the funds appropriated for implementation and enforcement of the provisions of this article are those which, in the judgment of the city council, best protect the overall health, safety and welfare interests of the public. (c) This article shall not be construed as placing responsibility for assuring the adequacy of fire protection services within the city or any officer, employee or agent of the city, the fire district, water purveyor, employee or agent of the fire ((distriet))d~partment or water purveyor. Procedures established pursuant to this article are spot checks designed to foster and encourage compliances but are not guarantees or assurances that permits or work undertaken pursuant to permits complies with all applicable provisions of the article. It is the responsibility of the permit holder to comply with the procedures regarding the adequacy of fire protection service. Sec. 8-((40))39. ((Appeals))Uniform Fire Code Section 103.1.4 amended- Board of &gp._e3~. Section 103.1.4 of the Uniform Fire Code, as adopted by this chapter, is hereby amended to read as follows: 103.1.4 Appeals. To ~ .... : .... ' ..... :._L:,:,__ ,-_, ............... :-, .... ~ .......~- ORD # , PAGE 11 t~s a~igl?, ?xg~gt for rulings or decisions ~ai~ng to e~orcem~nt oft~8 a~igle~ ma~ be made to the he~ng ex~n~r appoint~ b7 the ¢i~. Proc~urg roles ~nc¢~n~ appe~ shall be ~ prodded in process l~ o~Chapter 22. ~n~. Sec. 8-40. Civil Enforcement Notwithstanding any provision in this article or in any code adopted hereunder to the contrary.. civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by Federal Way City_ Code Chapter 1. Article III. Civil Enforcement of Code. Civil enforcement is in addition to. and does not limit any other forms of enforcement available to the City_ including, but not limited to, criminal sanctions as specified herein, nuisance and injunction actions; or other civil actions. Secs. 8-41-8-50. Reserved. Section 4. as follows: Chapter 8, Article II, Division 3, of the Federal Way City Code shall be amended DIVISION 3. FIRE CODE ORD # , PAGE 12 Sec. 8-51. Code adopted ~6tlUll~ LII6L 1116~ ~ IlVVUGM) ~iI6~LGi ~'D VII 111 IIJMI all IU~6LIUII~ al~ ~llg~L~ 1~-~ VII LG~LUI~ The follo~ng code. as mendS, add~ to. or except~ in tbs chapter, together ~th all amendments and addition~ prodded in t~s title, is adopted and shall be applicable ~t~n the ci~: A. The follo~ng chapters of the Washn~on Ad~strative Code as presently consti~ted or as may be subs~uently amendS: "1. Chapter 5144 WAC - State Building Code Adoption and ~endment ~f the 1997 Edition of the U~fo~ Fire Code including appendices Chapters I-& I-C. II-F. ~-& III-B. ~nd III-C. State amendments to sections 103.2.1.1.1109.8.3. 7404.2.3. and 7802. are adopted 9nly to the e~en~ that they apply to buildings contai~ng four dwelling u~ts or less: in all ~her respects the foregoing state amendments are not adopted. State amendments to sections ORE) # , PAGE 13 901.2.2.1.901.4.2, 902.1.902.2 through 902.2.4.1 and 7902.1.7.2.4. are not adopted for any buildines. 2. Chapter 5145 WAC -- State Building Code Adoption and Amendment of the 1997 Edition of the Uniform Fire Code Standards Sec, 8-52. Amendments. The following amendments to the fire code adopted in section 8-51 are hereby adopted: the ~ .... Section ((-}-k-.-.-.-.-.-.-.-~)) 1102.3 is amended to read as follows: ORD # PAGE 14 Section ((~))1102.3. Open burning prohibited. the city limits is prohibited. Open burning within ORD # (((4))2) (((6))3) Section ((-14:-tO9))1007,3,3,6,2 is amended to read as follows: The installation or use of any electric, electronic or mechanical alarm device which gives automatic notice to the communications center of the city fire department on emergency or business telephone numbers is prohibited. Individuals, agencies or companies may use the special telephone-lire for automatic notification when approved by the fire chief. This provision specifically includes devices utilizing the public telephone system. Section ((77. I07(a)))7701,7,2 is amended to read as follows: (a) The storage of explosives and blasting agents within the city is prohibited. PAGE 15 Exception. The fire chief may issue a special permit for such storage where it appears in his or her judgment there will be no undue danger to persons or property. (((-7-))4) Section ((g2. I04~,%)))8204,2 is amended by the addition of two new paragraphs to read as follows: The aggregate capacity of any one installation which contains more than 2,000 water gallons of liquefied petroleum gas is prohibited within the city. Exception. The fire chief may issue a special permit for such storage where it appears in his or her judgment there will be no undue danger to persons or property. 1~ Appendix II-F shall apply to all aboveground flammable and combustible liquid storage tanks. ORD # , PAGE 16 Sec. 8-53. New materials, processes or occupancies which may require permits. The city manager, the building official and the fire chief shall act as a committee to determine and specify, after giving affected persons an opportunity to be heard, any new materials, processes or occupancies which shall require permits, in addition to those now enumerated in the fire code adopted in section 8-51. The fire chief shall post such list in a conspicuous place and distribute copies thereof to interested persons. Sec. 8-54. Structures over water. No portion of any building or other structure supported by piers or piling and extending over water shall be more than 250 feet from an improved public street or alley giving access thereto for fire engines and other firefighting equipment; provided, however, that the foregoing limitation'shall not apply to any one-story structure used solely for the moorage of boats and which is: (1) (2) (3) Of Type 1 construction; Of Type 2 construction; or Having installed throughout the structure an approved automatic sprinkler system. Secs. 8-55-8-65. Reserved. Section 5. Chapter 8, Article II, Division 4 of the Federal Way City Code shall be amended as follows: DIVISION 4. FIRE ALARMS AND SPRINKLER SYSTEMS* ORD # PAGE 17 Sec. 8-66. Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Board of appeals shall mean the heating examiner appointed by the city pursuant to process I of chapter 22, Zoning. Fire detection system shall mean a heat and/or smoke detection system monitored by a central and/or remote station conforming to the current requirements of the National Fire Protection Association standards and/or the fire chief or designee. Fire sprinkler system shall mean an integrated system of piping connected to a water supply with sprinklers which will automatically initiate water discharge over a fire, conforming to the current requirements of the National Fire Protection Association standards and/or th~ {ire chief or designee. Life safety/rescue access shall mean an unobstructed access to all floor levels and each roof level of a building on not less than 20 percent of the building perimeter by utilizing a 35-foot ladder. An alternate method would be at least one stairway enclosure with exit doorways from ORE) it , PAGE 18 each floor level and with a door opening onto each roof level which conforms to the requirements of the Uniform Building Code. ((Sec. 8-67. Sec. 8-6((8))7. Life safety/rescue access. (a) All occupancies shall be required to provide approved life safety/rescue access. (b) The following are exceptions to this section: (1) Group ((M))U occupancies; and (2) Roof access need not be provided to roof levels having a slope greater than 4 in 12. ORD # , PAGE 19 Sec. 8-6((9))~. Fire detection system. (a) All occupancies exceeding 3,000 square feet gross floor area shall be required to provide an approved automatic fire detection system. Area separation walls as noted in section ((505~))504.6 of the Uniform Building Code shall not be considered to separate a building to enable deletion of the required fire detection system. (b) The following are exceptions to this section: (1) Group ((M))U or g Division 3 ((t)ivision)) occupancies; (2) Occupancies protected throughout by an approved/monitored automatic sprinkler system can delete heat detectors from the system. Sec. 8-((70))69. Installation. Fire sprinkler systems shall be installed: (t) In all Group R Division 3 occupancies exceeding 2,500 square feet gross floor area (including attached garages) without adequate fire flow except as cited. ORD # , PAGE 20 (2) In all R-3 occupancies without approved fire department access as defined in section ((-t0:-.-2~))901 of the Uniform Fire Code. (3) In all Group R Division 1 occupancies having three or more levels or containing five or more dwelling units and hotels having three or more floor levels or containing ten or more guest rooms: Quick response standard sprinkler heads shall be used in accordance with their approved listing in the dwelling unit and guest room portions of the buildings. For the purposes of this section, condominiums sh~ be treated as apartments. For the purpose of this section, a floor level shall be defined as "that portion of a building included between the upper surface of any floor and the surface of the next floor or roof above." Area separation walls as noted in section ((505~))5~,6 of the Uniform Building Code shall not be considered to separate a building to enable deletion of the required fire sprinkler system. (4) In Group A occupancies that are used as nightclubs and discos where no alcohol is served and where the total gross floor area exceeds 5,000 square feet. Area separation walls as noted in section ((505(e)))504,6 of the Uniform Building Code shall not be considered to separate a building to enable deletion of the required fire sprinkler system. ORD # , PAGE 21 (5) In all other occupancies requiring 2,000 gallons per minute or more fire flow, or where the total floor area included within the surrounding exterior walls on all floor levels, including basements, exceeds 10,000 square feet. Area separation walls, as noted in section ((505(-e)))504.6 of the Uniform Building Code, shall not be considered to separate a building to enable deletion of the required fire sprinkler system. Group ((/Vt))U occupancies are excepted from this subsection. (6) In all occupancies where the building is classified as an overwater structure. (((See ~[~ CO~ii[y assessed --' · )) 1~-~- Sees. 8-7((2))0--8-90. Reserved. Section 6. follows: ORD # Chapter 8, Article II1 of the Federal Way City Code shall be amended as ARTICLE [II. SMOKE DETECTORS" , PAGE 22 ORD # , PAGE 23 J'-'cIJI I~i~ izfiJ/iJill;i4 ~lillll Jilrli A lir~.lillil~ J/IVL/I[3111 iillJJJllllli~ LIIG 'AUUIC~ ~V I./g I1VVI]JLGIi[3LJ 1)~ ~1 J/Al ~ U,L LII~ 1[~,~,.1 LILI~ LU AJI.,V UVY~UlII,~ UIUL. C:/./JI(,~ ti/cci ~.lliliJ. 11113,1111AJI AI.[3A UAl'Ilkl l .... W[3IIlII~II: .... LJiIJL:' COil~.~til-U. Ji [.l:l.J J. Jig, IJUll[lill~ UIJ~/[31OJ. [Jl 1.113~,1~:3~1&~[3) ~t. IIU. 1,1113 llI~; [3111~;;;L Idl U~;~/~ll~,r~,) ,al[3 11131 [31day d. Ul. llldl IZ,[3kl. l~,.lgU. U. III[3,.~,,~ LII[3 UWlI[31 k'gl I,.11113,.'~ Lil.al. ~1. [JIUlJ~ll.y IJ~I~.LIII,~ ~,lllglkl;; t.J.~:L~..~LrOI 11~1,.~ U[.,~,II III~L~:III~;LI. 111. ilL,*, Sec. §-92,. ?enalD-. OKI) # , PAGE 24 (lklLlltlgll LTO /lll I1LIUIUIU W'nllllll~ ll'elYG {~ bUUUg ll~llL Ul,nt:, ~ndllgll {XbtlV~tg3A~ gt. lUt~ i WIULL. ll~llg. ORD # ., PAGE 25 IIId.ilLIIi1L,,I. LII gl ~ III~IilUI.~IlUIIi). ~IIIIUA. Iii U~I. IGI,/I. UI~ Igl llgllllllll?.. IIIILI"'IIIGLI LII~;I ~gll:l ~11/111 I/lli lll~lL,/'lljglJ Ill ~.LI] .l..l[l,l.i LI"WIi GU ,..~lllglkli; UGLGI,.,LVIi) ,)illlll I/Ill ilL.)L,II. IIGU. ill I:MI fdWl;;lllii,i~ illlll.~ L/MIlL L,IL Sec. 8-9((6))1. Testing and maintenance. Installation of an approved smoke detection device shall be the responsibility of the owner. Maintenance of such device shall be the responsibility of the tenant or occupant. Maintenance shall include the performance of such tests of the required smoke detector as are recommended by the manufacturer, at intervals of not less than once a month. Maintenance also requires that if the smoke detector is battery-operated, new batteries shall be installed whenever the unit emits a low battery signal, or a minimum of once each year whether or not a low battery signal is present. Sec. 8-9((9))2. Transfer of dwelling unit. ORD # , PAGE 26 It shall be unlawful for any person to convey fee title to any real property which includes a dwelling unit, or transfer possession of any dwelling unit pursuant to a land sale contract, unless there is a properly operating smoke detector in the dwelling unit which has been installed in accordance with this article. Effective upon the sale or transfer of title of a dwelling unit, it shall be the duty of the seller or transferor to certify to the buyer or transferee in writing that all smoke detectors required by this article are installed and in proper working order. Sec. 8-9((8))3. Removal or tampering. It shall be unlawful for any person to remove a properly functioning 'smoke detector installed in conformance with this article unless it is replaced. It shall be unlawful for any person to remove batteries or in any other way make inoperable or interfere with the effectiveness of a smoke detector installed in conformance with this article, except that this provision shall not apply to any owner or owners agent in the normal procedure of replacing batteries. Secs. 8-9((9))4-8-120. Reserved. Section 7. Section 8-124 of the Federal Way City Code shall be amended as follows: Sec. 8-124. Civil Enforcement ORD # , PAGE 27 Not~thst~ding ~y pmhsion in tNs micle or in any code adopted hereunder to the contra~, cml e~orcement of the pro~sions of tNs ~icle ~d the terns ~d conditions of any pemit or approv~ issu~ pum~t to tNs ~icle sh~l be govem~ by Federal Way Ci~ Code Chapter I, ~icle ~, CMl Egorcement of Code. Ci~i ~or~ment is in addition to. ~d does not li~t any other ferns of e~or~ment av~lable to the Ci~ including, but not limit~ to, cfi~nal sanCtions as sp~ified herein, nui~ and injunction actions, or other cml action~ Section 8. Section 8-175 of the Federal Way City Code shall be amended as follows: Sec. 8-175. Reinforcement of fire protection ((by--cit~)). When, in the discretion of the fire chief, such requirement is necessary to preserve the public health, safety and welfare, the permit may require that a ((city)) Federal Way ((f))Fire ((d))Department pumper and a minimum of two trained ((city)) firefighters shall be on site 30 minutes prior to and after the shooting of the event. Firefighters shall receive a minimum compensation as per the Washington State Chiefs Association's fee schedule. All compensation for fire department apparatus will be as per the WaShington State Chiefs Association's fee schedule and shall be designated to the general fund. Section 9. Severabili _t-y. The provisions of this ordinance are declared separate and severa, ble. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of ORD # , PAGE 28 this ordinance or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. ~. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. ~. Effective Date. This ordinance shall take effect and be in force five (5) days from and after its passage, approval, and publication, as provided by law. PASSED by the City Council of the City of Federal Way this day of ,1999. CITY OF FEDERAL WAY ATTEST: MAYOR, RON GINTZ CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. K:\ORDIN~ ORD # , PAGE 29 MEETING DATE: April 20, 1999 CITY OF FED~ WAY City Council AGENDA ITEM SUBJECT: Construction times/noise 2) Residential outdoor vehicle storage CATEGORY: BUDGET IMPACT: _ CONSENT X ORDINANCE BUSINESS HEARING FYI _ RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: Expenditure Amt~: Contingency Reqd: ATYACHMENTS: 1) April 13, 1999 memorandum to City Council from Martin Nordby 2) Ordinance 3) January 4, 1999 Planning Commission Findings 4) March 30, 1990 Memorandum from Martin Nordby to LUTC. (5) staff report dated December 2, 1998. SUMMARY/BACKGROUND: The Planning Commission conducted a public hearing on November 18, 1998 on the civil citation process, noise ordinance and junk cars. The LUTC discussed the proposal at its April 5, 1999 meeting and are recommmending approval to the full Council. The civil citation ordinance is in a separate ordinance under Council Bill 222. CITY COUNCIL COMMITI'E~E RECOMMENDATION: To approve amendment as presented. - ~-~- ';~ ~-~' -~:-~,-~-~;~-~;~,' ~;;~i- '~-~ ~,~- '~ ~-~ ~~ ~ ~-~-'~'~':'~-~' ~'-~ '~ ~-~ ...... ~ .... ~ -',~-' ..................................................................... ,.~_ ........................ ~_~.~_~._.~.~._. APPROVED FOR INCLUSION IN COUNCIL PACKET: ~}[[ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY DATE: TO: FROM: SUBJECT: April 13, 1999 CITY COUNCIL ~ Martin Nordby, Code Compliance Offic Code Amendments - Citation Authority for Code Compliance; Outdoor Storage Standards for Residential Zones; Construction Times Attached are three draft code amendments that extend the current civil pe,~alties ordinance used for sign code enforcement to the rest of the city code, establish more specitic outdoor vehicle storage standards for residential zones, and correct a discrepancy between the ct~rrent nuisance noise code and permitted construction hours. The City Council Land Use and Transportation Committee reviewed these draft amendments and recommended they be forwarded for consideration by the full Counci!. Previously the Planning Commission reviewed all three amendments during two meetings; first, a work session on November 18, 1998, then a Public Hearing held December 2, 1998. The Commission recommended minor technical changes reflected in the current draft amendments. Included w;th the amendments is the Planning Commission's findings and recommendation for adoption. ORDINANCE NO. DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER 22, FEDERAL WAY ZONING CODE, AND CHAPTER 10, FEDERAL WAY NUISANCE NOISE CODE, OF THE FEDERAL WAY CITY CODE, ADOPTING SPECIFIC AMENDMENTS AND ADDING NEW REGULATIONS FOR OUTDOOR VEHICLE STORAGE AND DEVELOPMENT ACTIVITY HOURS AND NOISE RELATED TO DEVELOPMENT ACTIVITY. A. WHEREAS amendments to the Federal Way City Code (FWCC) text are authorized pursuant to FWCC Section 22-216 pursuant to Process VI review; and B. WHEREAS the Federal Way City Council has considered proposed changes to the FWOC regarding development activity hours, nuisance noises, and outdoor vehicle storage; and C. WHEREAS the Federal Way City Council, pursuant to FWCC 22-517, having determined the Proposal to be worthy of legislative consideration, referred the Proposal to the Federal'Way Planning Commission for its review and recommendation; and D. WHEREAS the Federal Way Planning Commission, having considered the Proposal at a work session on November 18, 1998 and at a public hearing on December 2, 1998 pursuant to FWCC Section 22-523, and all public notices having been duly given pursuant to FWCC Section 22-528; and E. WHEREAS the public was given opportunities to comment on the Proposal ORD # , PAGE I during the Planning Commission review;, and F. WHEREAS the City of Federal Way SEPA responsible official has determined SEPA review has already been completed as part of the adoption of the original zoning code; and G. WHEREAS following the public hearings, the Planning Commission submitted to the Land Use and Transportation Committee of the City Council its recommendation in favor of proposed zoning text amendments adding sections to the FWCC as noted previously; and H. WHEREAS the Federal Way Land Use and Transportation City Council Committee met on , 1999 to consider the recommendation of the Planning Commission and has moved to forward the Proposal, with amendments, to the full City Council; a0d I. WHEREAS there was sufficient opportunity for the public to comment on the Proposal; NOW, THEREFORE, ' THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings. After full and careful consideration, the City Council of the City of Federal Way makes the following findings with respect to the Proposal and the proposed amendments to the Federal Way City Code ("FWCC"): 1. The Federal Way City Council adopted limitations on development activity in Chapter 22; Article XIII; Division 3; § 22-1006 and defines certain noises as a public ORD # ., PAGE 2 nuisance in Chapter 10, Article 2 § 1-27 of the Federal Way City Code; and 2. These sections conflict with each other in their regulation of similar activities; and 3. The Federal Way City Council desires to establish consistency between these sections of the FWCC; and 4. The Federal Way City Council adopted outdoor storage regulations for residentially zoned properties in Division 8, Chapter 22 FWCC; and 5. The Federal Way City Council desires to establish specific outdoor storage regulations related to the storage of motor vehicles and non-motorized vehicles in response to citizen comments and concerns; and 6. The Federal Way SEPA responsible official responsible official has determine~d SEPA review has already been completed as part of the adoption of the original zoning code; and 7. The proposed code amendments would not adversely affect the public health, safety or welfare; and 8. The Planning Commission, following notice thereof as required by RCW 35A.63.070, held public hearings on the proposed regulatory amendments and has considered the testimony, written comments, and material from the public by and through said hearings. Section 2. Conclusions. Pursuant to FWCC Section 22-216 and based upon the ORD # , PAGE 3 Findings set forth in Section 1, the Federal Way City Council makes the following Conclusions of Law with respect.to the decisional cri[eria necessary for the adoption of the Proposal: 1. The Proposal is consistent with the following Comprehensive Plan goals and policies contained in the Natural Environment chapter; NEG14- Develop programs and/or regulations to address noise pollution in all areas of the City. 2. The Proposal is consistent with the following Comprehensive Plan goals and policies contained in the Housing and Land Use chapters; HP5- Maintain a strong code enforcement program to protect residential areas from illegal land use activities; and LUPI- Develop residential design performance standards to maintain neighborhood character and ensure compatibility with surrounding uses. 2. The Proposal bears a substantial relationship to the public health, safety and welfare because it implements policies consistent with the goals of the comprehensive plan. 3. The Proposal bears a substantial relationship to the public health, safety and welfare because it implements policies protecting the character of the City's ORD # , PAGE 4 neighborhoods. Section 3. Amendment. The Federal Way Zoning Code, Chapter 22, and the Federal Way Nuisance Noise Code, Chapter 10, are amended to provide as set forth in Attachment A and by this reference is incorporated herein. Section 4. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. Section 5. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 6. (30) days from the time of its final passage, as provided by law. PASSED by the City Council of the City of Federal Way this of ,1999. Effective Date. This ordinance shall take effect and be in force thirty day ORD # , PAGE 5 CITY OF FEDERAL WAY MAYOR, RONALD L. GINTZ ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: ORD # ., PAGE 6 PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. ORD # , PAGE 7 ATTACHMENT A- 1 Sec. 22-1006. Limitations. (a) General. It is a violation of this chapter to engage in any development activity or to operate any heavy equipment between the hours of 8:00 p.m. and 7:00 a.m. mu~,ua3 =~uug,~ weekdays~ and 8:00 p.m. Friday through 9:00 a.m. Saturday. No development activity or use of heavy equipment may occur ~n after 8:00 p.m. Saturday, or at any time on Sundays or holidays ~ ar~ observed by the city. (b) Exception. The director of community development may grant revocable, written permission to engage in a development activity or to operate heavy equipment between the hours of 8:00 p.m. and 7:00 a.m. on Monday through Friday and 8:00 p.m. Friday through 9:00 a.m. Saturday, or from 7-00 9:00 a.m. to 8:00 p.m. on Sundays or holidays wh=xch--ax~ observed by the city if this will not interfere with any residential use ~ permitted in the zone in which it is located. (Ord. No. 90-43, § 2(115.25), 2-27-90) ATTACHMENT A-2 Chapter 10 NUISANCES* *Cross reference(s)--Appeal procedure from final action of the city council, hearing examiner, any board or commission, or administrative official for which there is no further right administrative appeal or statutory or other appeal procedure established, § 2-181 et seq.; animal nuisances, § 4-146 et seq.; littering and polluting prohibited, § 6-317; air quality zoning regulations, § 22-947; erosion and sedimentation supplementary district regulations, § 22-948; glare regulations, § 22-950; regulation of heat emissions, § 22-951; junk and junkyards prohibited, § 22-952; maximum environmental noise level, § 22-956; odor limitations and regulations, § 22- 958; radiation limitations, § 22-959; restrictions regarding fences, § 22-1026 et seq.; discharge of certain waters creating change in water quality creates a nuisance, § 22-1201. State law reference(s)-Buildings, construction standards, RCW 35A.70.040 et seq.; weeds, rodents and pests, RCW 17.04.010 et seq.; public health and safety, RCW 70.01.010 et seq. Article L In General Secs. 10-1--,.10-25. Reserved. Article 1~. Noise Sec. 10-26. General prohibition. Sec. 10-27. ILlustrative enumeration. Sec. 10-28. Exclusion. Sec. 10-29. Penalty. Secs. 10-1--10-25. Reserved. ARTICLE I. IN GENERAL ARTICLE H. NOISE* *Cross reference(s)-Use of loudspeaker by peddlers in parks and recreation areas restricted, § 11-80; sound amplification equipment restricted in parks and recreation areas, § 11- ATTACHMENT A-3 89; maximum environmental noise levels, § 22-956. State law reference(s)--Noise control, RCW 70.107.010 et seq. Sec. 10-26. General prohibition. It is unlawful for any person to cause, or for any person in possession of property to allow to originate from the property, sound that is a public disturbance noise. (Ord. No. 90-37, § I(A), 2-20-90) Sec. 10-27. Illustrative enumeration. The following sounds are public disturbance noises in violation of this article: (1) The frequent, repetitive or continuous sounding of any horn or siren attached to a motor vehicle, except as a warning of danger or as specifically permitted or required by law. (2) The creation of frequent, repetitive or continuous sounds in connection with the starting, operation, repair, rebuilding or testing of any motor vehicle, motorcycle, off-highway vehicle or internal combustion engine within a residential district, so as to unreasonably disturb or interfere with the peace and comfort of owners or possessors of real property. (3) Yelling, shouting, whistling or singing on or ~ear the public streets, particularly between the hours of 10:00 p.m. and 8:00 a.m. or at any time and place as to unreasonably disturb or interfere with the peace and comfort of owners or possessors of real property. (4) The creation of frequent, repetitive or continuous sounds which emanate fi.om any building, structure, apartment or condominium, which unreasonably disturbs or interferes with the peace and comfort of owners or possessors of teal property, such as sounds from musical instruments, audio sound systems, band sessions or social gatherings. -- (5) Sound from motor vehicle audio sound systems, such as tape players, radios and compact disc players, operated at a volume so as to be audible greater than 50 feet from the vehicle itself. (6) Sound from portable audio equipment, such as tape players, radios, and compact disc players, operated at a volume so as to be audible greater than 50 feet from the source, and if not operated upon the property of the operator. ATTACHMENT A-4 (7) The squealing, screeching or other such sounds from motor vehicle tires in contact with the ground or other roadway surface because of rapid acceleration, braking or excessive speed around comers or because of such other reason, provided that sounds which result from actions which are necessary to avoid danger shall be exempt from this section. (8) Sounds originating from construction sites, including but not limited to sounds from construction equipment, power tools and hammering between the hours of -}O:0ff-prrm 8;00 p.m. and 7:00 a.m. on weekdays and ~ 8;00 p.m. and 9:00 a.m. on weekends. (9) Sounds originating from residential property relating to temporary projects for the maintenance or repair of horns, grounds and appurtenances, including but not limited to sounds from lawnmowers, powered hand tools, snow removal equipment and composters between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and 10:00 p.m. and 9:00 a.m. on weekends. (Ord. No. 90-65, § 1 (B), 7-3-90) Sec. 10-28. Exclusion. This article shall not apply to regularly scheduled events at parks, such as public address systems for l~aseball games or park concerts between the hours of 9:00 a.m. and 10:30 p.m. (Ord. No. 90-37, § I(C), 2-20-90; Ord. No. 90-65, § 2, 7-3-90) Sec. 10-29. Penalty. Any person who violates the provisions of this article shall be subject to a civil fine not to exceed $250.00 for a first offense. For second and subsequent offenses, the person shall be guilty of a misdemeanor and upon conviction shall be punished as provided in section 1-13. (Ord. No. 90-37, § I(D), 2-20-90) Copyrighted. Municipal Code Corp., affiliated Municipality. 1996. ATTACHMENT A-5 DIVISION 8. OUTDOOR ACTIVITIES AND STORAGE* *Cross reference(s)--This nonconformance must be immediately brought into conformance with the applicable provisions of the zoning regulations, § 22-330. Sec. 22-1111. Application of division. This division establishes regulations applicable to outdoor use, storage and activity. (Ord. No. 90-43, § 2(115.105(1)), 2-27-90) Sec. 22-1112. Residential uses. The purpose of this chapter is to establish standards for outdoor residential uses, storage and activities related to motor vehicles and non-motorized vehicles. These standards ara intended to protect property values by reducing visual blight, aid in emergency access and fire safety, guard against the creation' of rodent and pest harborage, and reduce the impact on the natural environment from the leaking of motor vehicle fluids. Outdoor uses, storage and activities normally associated with a residential use are permitted, unless otherwise regulated or prohibited by this chapter. Ail motor vehicle and non-motorized vehicle parking and storage for residential uses containing either detached or attached dwellings, shall be in a garage~ carport or on an approved impervious surface. Non-motorized vehicles may include but are not limited to travel and camp trailers, utility trailers, truck campers, and boat or vehicle transport trailers. Any garage, carport or impervious surface used for motor vehicla or non-motorized vehicle parking or storage shall have direct driveway access. This section does not apply to residential lots __ containing a detached dwelling unit where the total lot size is 20.000 square feet or more. However, junked, wrecked, dismantled, or inoperable motor vehicles must be stored in a completely enclosed building regardless of the size or zoning designation of (Ord. No. 90-43, § 2(115.105(2)), 2-27-90) ( CITY OF FEDERAL WAY Planning Commission DATE: TO: FROM: SUBJECT: January 4, 1999 City Council Robert Vaughan, Chair Planning Commission Recommendation - Citation Authority For Code Enforcement; Outside Storage Standards For Residential Zones; Construction Times I. BACKGROUND The Federal Way Comprehensive Plan contains goals and policies that provide for the protection of the inhabited environment through policies intended to protect it from the adverse impact of noise; illegal land uses and activities; and enforcement of the laws that establish the standards supported by these policies. Currently, the City's code enforcement staff are given the responsibility to enforce those standards as established in the various chapters of the Federal Way City Code (FWCC). This amendment establishes a civil citation enforcement process for the entire code similar to the enforcement program currently used for the sign code. Federal Way District Court would become the last resort rather than the first stop for violations. The civil process is a faster, more effective method of dealing with many code violations. Among the codes protecting residential areas from the impact of noise from permitted construction activity are ones that limit the times of the day and days of the week such intense activity may occur. These hours are in conflict with other standards established in the City's nuisance noise provisions in Chapter 10 of the FWCC. This conflict has made these standards difficult if not impossible to enforce equitably and without confusion. Lastly, concerns were expressed to the City Council during the investigation and enforcement of a junk vehicle case that the use of landscaped areas outside of the required yard for parking and storage for operable vehicles was legal. These citizens believed this created a situation that was both detrimental to the aesthetics of the community and degraded the health and safety of the neighborhood. The intent of these three separate code amendments is to further the City's goal of improving the health and safety of its citizens. -1- ( II. PLANNING COMMISSION PROCESS The Planning Commission held both a work session and public hearing. The work session was held November 18, 1998. This provided the commission an opportunity to review the proposals in depth and ask detailed questions. From this session came specific changes to the proposals. A Public Hearing was held December 2, 1998. Minor technical changes were made based on additional Planning Commission comments. City staff has prepared draft amendments to the requirements in the zoning code concerning civil citation authority, outdoor storage of vehicles, development activities, and related noise nuisances. The drafts are attached to this document. III. SUMMARY OF AMENDMENTS The following list summarizes the major code amendments reviewed by the Planning Commission during this code revision process. 1. A civil citation system has been drafted that includes the following major features: mo co Decriminalizes zoning and other nuisance related codes. Establishes civil penalties for violations of those codes ranging from $100 per day to $500 per day. Authorizes Code Compliance Officers to issue a civil citation after appropriate notice. Establishes an appeal procedure and criteria for affected persons wishing to appeal a civil citation. Appeal hearings are heard by the Federal Way Hearing Examiner rather than in Federal Way District Court. Outdoor storage standards are established for operable and inoperable vehicles. These standards include: ao Requirement that all junked, wrecked, dismantled, or inoperable vehicles be stored in a fully enclosed structure. All operable vehicles must be parked on an approved impervious surface such as a driveway or in a carport or garage. Standards for operable vehicle parking do not apply to single family lots of 20,000 square feet or more. Creates consistency between development activity hours and nuisance noise code requirements. -2- ( IV. PLANNING COMMISSION FINDINGS &RECOMMENDATIONS The Planning Commission based its recommendation for adoption of the proposed amendments to the Federal Way City Code relative to civil citation authority, outdoor storage, and development activity and nuisance noises based on the following findings: The City's Code Compliance Officers are responsible for enforcement of the City's codes and regulations; and o They currently do not possess the authority to properly sanction certain code violations within their area of responsibility; and o The proposed amendments are consistent with the provisions of the Housing Chapter of the Federal Way Comprehensive Plan (FWCP) including the following: HP5 - Maintain a strong code enforcement program to protect residential areas from illegal land use activities; and The citizen concerns about improper outdoor storage of vehicles are consistent with the Land Use Chapter of the FWCP including the following: L UPI - Develop residential design performance standards to maintain neighborhood character and ensure compatibility with surrounding uses; and o The development activity hours of Chapter 22 of the FWCC were not consistent with the definition of a nuisance noise as defined by Chapter 10 of the FWCC; and the Natural Environment Chapter of the FWCP states: NEG14 - Develop programs and/or regulations to address noise pollution in all areas of the City. The Federal Way SEPA responsible official has determined SEPA review has already been completed as part of the adoption of the original zoning code; and o The proposed code amendments would not adversely affect the public health, safety, or welfare. g ,' ~ Federal Way Planning Commission K \COMMON AD\ADMINI~PLANCOM\I998~PCMEMO -3- CITY OF FEDERAL WAY DATE: TO: FROM: SUBJECT: March 30, 1999 CITY COUNCIL LAND USE AND TRAI~S~ORTATION COMMITTEE Martin Nordby, Code Compliance Office' ~' ~'"/ Code Amendments - Citation Authority for Code Compliance; Outdoor Storage Standards for Residential Zones; Construction Times Attached are three draft code amendments that extend the current civil penalties ordinance used for sign code enforcement to the rest of the city code, establish more specific outdoor vehicle storage standards for residential zones, and correct a discrepancy between the current nuisance noise code and permitted construction hours. In drafting the civil penalties ordinance staff were able to utilize both the experience of other cities and the experience gained from our own sign code enforcement program to create a greatly enhanced enforcement ordinance. Provisions to reduce frivilous appeals and their added work and expense are included in this amendment. It also creates a specific process for hearing appeals and directs the hearings examiner to provide better direction in his/her decisions to both staff and the appeallant. Greater than typical research was conducted concerning outdoor vehicle storage. Due to the limited number of local jurisdictions using such an ordinance, cities were also contacted in the states of California, Arizona, New Mexico, and Indiana. The draft amendment is based on these examples plus considerable input from the Planning Commission. The proposed amendments to the noise and construction time standards are primarily housekeeping in nature. The ordinances conflicted in their respective times when construction activity and its related noise impacts was permitted. This has been corrected with no alteration to the primary intent of either ordinance. The Planning Commission reviewed all three amendments over a period of two meetings; first, a work session on November 18, 1998, then a Public Hearing held December 2, 1998. Minor technical changes were recommended by the Commission and are reflected in the draft amendments. Included with the amendments is the Planning Commission's findings and recommendation for adoption. Staff Report to the City of Federal Way Planning Commission DATE APPLICANT PROPOSED ACTION STAFF REPRESENTATIVE STAFF RECOMMENDATION December 2, 1998 City of Federal Way A) Amend the Federal Way City Code to Provide for a Civil Citation Process. B) Amend the Federal Way City Code to Limit Parking And Storage of Vehicles on Residential Lots. C) Amend Noise Nuisance Provisions of Chapter 10 of The Federal Way City Code to Eliminate Conflict With Construction Hour Limitations in the Code. Martin Nordby, Code Compliance Officer Amend the Federal Way City Code as outlined by staff recommendations. I. INTRODUCTION This staff report covers three proposed code amendments to the Federal Way City Code (FWCC). The first proposed amendment would expand the existing civil citation powers granted to code compliance staff under the sign code revision enacted in June 1995, to the remaining sections of the FWCC and provide for a civil citation process to replace the existing criminal penalties. The second proposed amendment is in response to citizen concerns and comments about the use of residential property for both operable and inoperable vehicle storage. This amendment limits where on residential property vehicles may be parked or stored. Lastly, the third proposed amendment is a house keeping matter to correct a conflict between existing sections of the code. This amendment brings two sections of the code dealing with construction hours and activity into line with each other. SEPA review is not required for the vehicle parking proposal or for the civil citation proposal. The original SEPA document adopted with the original code covers review for the proposed amendments to the noise ordinance and construction time code sections. Page I of 5 ( II BACKGROUND A. Civil Citation Authority In June 1995, the City Council adopted a new, extensively revised sign code. During both Planning Commission and City Council review of the proposed sign code, the importance of proper and effective enforcement was stressed. To provide for enforcement of the sign ordinance, and as an opportunity to evaluate the effectiveness of the civil citation process, a section of the sign code was devoted to enforcement of the sign code's provisions. Exclusive to the sign code, these provisions granted authority to code compliance staff to issue civil citations following appropriate notification to the property owner of the violation. Until that time, sign code violations, like other violations of Chapter 22 (zoning and land use) of the FWCC, were governed by DIVISION 5 - ENFORCEMENT §22-121 through 22-126. FWCC Sections 22-121 through 22-126 provide for notification to code violators (Notice of Violation - FWCC 22-127), orders to cease activity (Order to Cease Activity - FWCC 22-123) in violation of the code, and permits the code enforcement officer to "... seek issuance of a zoning citation" (FWCC 22-128 Ia]). The city prosecutor or an uniformed police officer then issues zoning citations. These are criminal misdemeanor citations carrying penalties of up to $5000 per day and/or six months in jail for each day in violation. Violations of sections other than Chapter 22 are covered under the general penalty provisions of FWCC 1-13. They charge these also as criminal misdemeanors subject to a fine not to exceed $1000 per day or 90 days in jail, or both. In each case the matter is heard in Federal Way District Court. The defendant is entitled to a jury trial and city prosecutors must prove beyond a reasonable doubt the violation occurred. These are formal court proceedings requiring legal staff represent the city's position. Inclusion of a civil citation process for the enforcement of the sign code was essential for quick, consistent, and effective enforcement. Current civil penalties range from $50.00 per day to a maximum penalty of $400.00 for each day the violation occurs. Should the person cited appeal the civil citation, a hearing is scheduled before the Federal Way Hearing Examiner. Because the matter is civil and not criminal, there is no threat of jail time. The matter typically can be handled by code enforcement staff without assistance from legal staff and the burden of proof is by a preponderance of the evidence. A civil citation may be reviewed for illegal, corrupt, arbitrary, or capricious actions in King County Superior Court should the appellant file a petition for review, within 14 days of the date of the hearing examiner's decision. The simplicity and directness of the civil citation program has proven effective. Following an initially high volume of citations being issued and a resulting high number of appeals, activity has fallen dramatically. For the first half of 1998, only one civil citation has been appealed. During the initial enforcement period in late 1996, more than two dozen citations were appealed. Page 2 of 5 Compliance is the goal. Appropriate monetary penalties have proven sufficient to gain compliance with the provisions of the sign code in nearly all cases. The simpler burden of proof eases the amount of time and effort required to show a violation exists. The shorter period of time needed to move from a warning or notice to correct a violation to the violator actually being cited helps to reenforce the city's enforcement efforts. The proposal before you amends the enforcement sections of FWCC Chapter 22 to include a civil citation process and the appropriate procedures for processing citations and appeals. However, simply adding a civil enforcement section is not the only change required. Because the code refers in many sections to criminal penalties, the entire code will be reviewed for references to enforcement. The provisions of this amendment will apply to all code violations referenced as using the enforcement provisions established by the amendment. Though nearly the same as the existing civil citation provisions of the sign code, some changes have been made to accommodate experience gained with the existing ordinance. The Law Department has prepared an ordinance that provides a civil citation process useful to all code sections the compliance officers are assigned to enforce. The amended civil citation ordinance includes procedural provisions currently accommodated through an interpretation by the Director of Community Development Services. Proper procedural standards have been incorporated with the ordinance. In addition to inclusion of a procedural process for appealing a civil citation or penalty, other significant changes from the existing sign code civil process include a requirement that an appeal include a $100 refundable fee. This is intended to reduce the filing of frivolous appeals and ensures a portion of any potential penalty has already been paid. Should the appellant prevail, the $100 fee will be refunded. Should the citation be upheld by the examiner, the fee would be credited toward any outstanding penalty. The requirement that an appeal be accompanied by an appeal fee and the amount of the fee required is consistent with current land use appeal policy and the fee schedule adopted by the City Council. A non-refundable appeal fee is required when a land use decision made by the department director or hearing examiner is appealed. Other changes include an increase in the penalties. The current sign violation penalty scale is $50 for the first violation, $100 for the second violation, $200 for the third violation, and $400 for additional violations in excess of three. The proposed civil citation penalties would be $100 for the first violation, $200 for the second violation, $400 for the third violation, and $500 for additional violations in excess of three. All penalties are assessed for each day in violation. However, if the violator fails to correct the violation once a civil citation has been issued and does not appeal the citation, a criminal citation may be issued. Current criminal misdemeanor penalties can be as high as $5000 and/or six months in jail for each day in violation. Page 3 of 5 ¢ Be Lastly, the option of a Voluntary Correction Agreement has been included in this proposed amendment. This permits the code compliance officer and the violator to formalize in writing a schedule for compliance in lieu of issuance of a citation. Failure to complete the required actions necessary to bring the property into compliance however, can result in issuance of a criminal citation. All criminal citations would still require they be issued either by the city prosecutor or a commissioned police officer. This ordinance does not empower code compliance officers to issue criminal citations. Applying an efficient civil citation enforcement system to the remaining sections of the code will decriminalize land use and nuisance violations, lessen the formality required for the criminal citation process, and provide a more effective method of reaching the compliance goal. The most effective route to achieve a coherent civil enforcement process is to create an enforcement ordinance that clearly defines the proper procedure and is applicable to the wide variety of enforcement responsibilities. Parking on Residential Lots This proposed amendment is in response to issues raised during several enforcement cases over the past few years. Some residents have used areas not intended for storage of vehicles as parking for sometimes operable, often inoperable, vehicles. This has usually occurred mostly in back yards or adjacent landscaped areas on residential property. Under current provisions of FWCC Section 22-1135, vehicles are only prohibited from being parked or stored in required yards (setbacks). A person can potentially fill an entire property legally, exclusive of required yards, with operable vehicles, boats, or recreational vehicles. Such conditions have raised concerns within several neighborhoods about access to structures during a medical or fire emergencies, lowered property values, and little used or inoperable vehicles becoming a rodent harborage. Code provisions for several cities were researched and some cities directly contacted about how they handle this type of issue. Bellevue, Bothell, Everett, Normandy Park, Renton, and Tukwila codes were specifically reviewed for applicable requirements. King County code enforcement and several cities outside the State of Washington were also contacted. They included Albuquerque, NM; Fresno, CA; Greely, CO; Peoria, AZ; Rowlett, TX; and South Bend, IN. Of Washington State city codes reviewed, the City of Bothell was the only city found to include a provision dealing with this specific issue. Section 12.16.110 of the Bothell City Code requires all vehicles parked on a residential lot be in a garage, carport, or parked on an approved impervious surface. Cities in other states have included this type of vehicle parking or storage restriction to control air-bom particulate pollution (dust control in Arizona and New Mexico) or as part of a general illegal storage/nuisance provision. Existing driveway standards, setback, and lot coverage requirements remain in effect preventing a residential lot from being completely paved over for parking or similar Page 4 of 5 ( purposes. Additionally, the Bothell ordinance requires any impervious surface being used have "...direct and unobstructed driveway access." The staff proposal is to adopt language similar to the Bothell ordinance, plus a provision requiring any junked, wrecked, dismantled, or inoperable vehicles be contained in a completely enclosed building. Changes have been made to the language of the amendment to include comments made by the Planning Commission. These changes include a purpose statement and definition of"non-motorized" vehicles. A draft version of the proposed amendment is enclosed. Co Noise and Construction Hours This proposed amendment to FWCC Sections 10-27(8) and 22-1006 is a housekeeping matter. There is a conflict between these two code sections regarding development activity and noise from construction sites. FWCC 22-1006 sets the hours construction and development activity is permitted. Those hours are different than the noise limitations set in FWCC 10-27(8) for noise generated at a construction site. The staff proposal is to amend both FWCC 10-27(8) and 22-1006 to be consistent with each other. Section 22-1006 of the FWCC prohibits development activity, as defined in FWCC 22- 1, Monday through Saturday, 8:00 p.m. to 7:00 a.m. Development activity is not permitted on Sundays or holidays observed by the city. FWCC 10-27(8) prohibits sounds originating from construction sites from 10:00 p.m. and 7:00 a.m. weekdays and 10:00 p.m. and 9:00 a.m. weekends. This amendment brings these time limitations into line with each other. The most significant change being that development activity (FWCC 22-1006) would not be permitted to begin before 9:00 a.m. on Saturday rather than 7:00 a.m. III. CONCLUSION Forward the proposed amendments as presented to the City Council for consideration. I ~&ETIERS'~DEllX,\MENDRPT WPD Page 5 of 5 CITY OF FEOERAL WAY City Council AGENDA ITEM ~: Civil C~a~oWenforcement process CATEGORY: BUDGET IMPACT: _ CONSENT X ORDINANCE BUSINESS HEARING FYI _ RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: Expenditure Amt: Contingency Reqd: A'I~ACHMENTS: 1) April 13, 1999 memorandum to City Council from Martin Nordby 2) Ordinance 3) January 4, 1999 Planning Commission Findings 4) March 30, 1990 Memorandum from Martin Nordby to LUTC. (5) see packet for noise and junk cars under Council Bill 221 for staff report. SUMMARY/BACKGROUND: The Planning Commission conducted a public hearing on November 18, 1998 on the civil citation process, noise ordinance and junk cars. The LUTC discussed the proposal at its April 5, 1999 meeting and are recommmending approval to the full Council. The noise and junk car ordinance are in a separate ordinance under Council Bill 221. CITY COUNCIL COMMITYEE RECOMMENDATION: To approve amendment as presented. APPROVED FOR INCLUSION IN COUNCIL PACKET: ~,~ -- ~' '~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY DATE: TO: FROM: SUBJECT: April 13, 1999 CITY COUNCIL ~ Martin Nordby, Code Compliance Offic Code Amendments - Citation Authority for Code Compliance; Outdoor Storage Standards for Residential Zones; Construction Times Attached are three draft code amendments that extend the current civil penalties ordinance used for sign code enforcement to the rest of the city code, establish more specific outdoor vehicle storage standards for residential zones, and correct a discrepancy between the current nuisance noise code and permitted construction hours. The City Council Land Use and Transportation Committee reviewed these draft amendments and recommended they be forwarded for consideration by the full Council. Previously the Planning Commission reviewed all three amendments during two meetings; first, a work session on November 18, 1998, then a Public Heating held December 2, 1998. The Commission recommended minor technical changes reflected in the current draft amendments. Included with the amendments is the Planning Commission's findings and recommendation for adoption. ORDINANCE NO. DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, CREATING A NEW CHAPTER 1.14, CIVIL VIOLATIONS OF THE CITY CODE, RELATING TO ENFORCEMENT OF CERTAIN CITY CODES AND PROVIDING FOR CIVIL PENALTIES FOR VIOLATION THEREOF. WHEREAS, the Federal Way City Council is authorized pursuant to RCW 35A. 11.020 to adopt and enforce ordinances of all kinds relating to and regulating its local and municipal affairs and appropriate to the good government of the City; and WHEREAS, the Federal Way City Council is authorized pursuant to RCW 35A. 11.020 to provide that violation of such ordinances constitutes a civil violation subject to monetary penalty; and WHEREAS, RCW 7.80.010(5) also authorizes the City Council to establish by ordinance the City's own system of hearing and determining civil violations; and WHEREAS, the Federal Way City Code ("FWCC" or"the Code") currently contains twenty-two different chapters, many of which contain their own enforcement provisions; and WHEREAS, many of the enforcement provisions differ from one another in the procedures utilized and the penalties for violations; and WHEREAS, the differences among the Code's enforcement provisions may cause confusion or lead to unfairness in their application; and ORD # , PAGE 1 WHEREAS, the City Council desires to establish a uniform system for identifying and punishing the majority of violations of the FWCC, or providing for correction of said violations; and WHEREAS, adoption of such a uniform system of enforcement is in the interest of the health, safety, and welfare of the general public; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings. After full and careful consideration, the City Council of the City of Federal Way makes the following findings with respect to the establishment of a uniform system for identifying, punishing, and/or correcting violations of the Federal Way City Code ("FWCC"): 1. The Federal Way City Council has previously adopted standards for civil and criminal enforcement of various portions of the FWCC; and 2. These sections treat similar activities differently; and 3. The Federal Way City Council desires to establish consistency between these sections of the FWCC; and 4. Such consistency would benefit and not be detrimental to the public health, safety and welfare; and 5. The Planning Commission, following notice thereof as required by RCW 35A.63.070, held public hearings on proposed amendments to the Zoning Code, Chapter 22 of the FWCC as well ORD # , PAGE 2 as to other chapters of the FWCC, and has considered the testimony, written comments, and material from the public received through said hearings. Section 2. Conclusions. Pursuant to FWCC Section 22-216 and based upon the Findings set forth in Section 1, the Federal Way City Council makes the following Conclusions of Law with respect to the decisional criteria for the adoption of amendments to the Zoning Code: 1. The proposed amendments to Chapter 22 of the FWCC are consistent with the following goals and policies contained in the Natural Environment, Housing, and Land Use chapters of the Federal Way Comprehensive Plan: NEG 14 - Develop programs and/or regulations to address noise pollution in all areas of the City. HP5 - Maintain a strong code enforcement program to protect residential areas from illegal land use activities; and LUP1 - Develop residential design performance standards to maintain neighborhood character and ensure compatibility with surrounding areas. 2. The proposed amendments bear a substantial relationship to the public health, safety and welfare because they implement policies of the Comprehensive Plan and implement policies protecting the character of the City's neighborhoods. Section 3. Amendment. Chapter 1 of the Federal Way City Code is hereby amended as follows: A. The table of contents of Chapter 1 is amended as follows: ORD # , PAGE 3 Sec. 1-1. Sec. 1-2. Sec. 1-3. Sec. 1-4. Sec. 1-5. Sec. 1-6. Sec. 1-7. Sec. 1-8. Sec. 1-9. Sec. 1-10. Sec. 1-11. Sec. 1-12. Sec. 1-13. Sec. 1-14. Sec. 1-15. Sec. 1-16. Sec. 1-17. ORD # Chapter 1 GENERAL PROVISIONS Article I. Code Construction How Code designated and cited. Definitions and rules of construction. Catchlines of sections. References to chapters or sections. History notes. References and editor's notes. Code does not affect prior offenses, rights, etc. Effect of repeals. Certain ordinances not affected by Code. Effect of amendments to Code. Supplementation of Code. Severability of parts of Code. Article Il. Criminal Enforcement of Code. General penalty. Article III. Civil Enforcement of Code. Purpose. Definitions. Notice of Violation and Order to Correct. Voluntary Correction Agreement , PAGE 4 Sec. 1-18. Appeal to Hearings Examiner. Sec. 1-19. Collection of Monetary Penalty. Sec. 1-20. Additional Enforcement Procedures. Sec. 1-21. Conflicts. Sec. 1-22. Meaning of Terms. B. Section 1-13 of the Federal Way City Code is amended as follows: (a) Unless otherwise provided, an person violating any of the provisions or failing to comply with any of the mandatory requirements of this Code or any ordinance of the city, or any rule or regulation adopted by the city council pursuant to thereto, shall be guilty of a misdemeanor. Except in cases where a different punishment is prescribed by this Code or any ordinance of the city, any person convicted of a misdemeanor under this Code or the ordinances of the city shall be punished by a fine not exceed $1,000.00 or imprisonment for a period of not more than 90 days or by both such fine and imprisonment. (b) This section shall not preclude and shall be deemed to be in addition to administrative and civil remedies as may be set forth in this Code or ordinances of the city, including but not limited to Sections 1-14 - 1-23 below. (c) Each and every day during any portion of which a violation of any of the provisions of this Code or the ordinances of the city is committed and continues shall be deemed to be a separate offense. C. New sections of the Federal Way City Code are adopted as follows: See. 1-14. Purpose. The purpose of this article is to establish an efficient, civil administrative system to enforce the development regulations of the city, to provide an opportunity for an appeal of determinations of violations and prompt hearings and decisions on any such appeals, to establish monetary_ penalties for violations, and to provide for the collection of said penalties. It is the express and specific purpose and intent of this ordinance to provide for and promote the health, safety and welfare of the general public and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefitted by the terms of this ordinance. ORD # , PAGE 5 It is also the express and specific purpose and intent of this ordinance that no provision nor any term used in this ordinance is intended to impose any duty whatsoever upon the City or any of its officers or employees. Nothing contained in this ordinance is intended nor shall be construed to create or form the basis of any liability on the part of the City, its officers, employees or agents, for any injury or damage resulting from any action or inaction on the part of the City, its officers, employees or agents. Sec. 1-15. Definitions. In this chapter, unless a different meaning is plainly required: (a) "Act" means doing or performing something. (b) "Civil violation" means a violation of a provision of a city development regulation for which a monetary penalty may be imposed under this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation. Traffic infractions pursuant to Title 11 of this Code are specifically excluded from the application of this chapter. (c) "Development"meansthe erection, alteration, enlargement, demolition, maintenance or use of any structure or the alteration or use of any land above, at or below ground or water level, and all acts authorized by a city development regulation. (d) "Development regulation" means and includes the following, as of or after the effective date of the ordinance codified in this chapter: 301 4L4.l (9) (10) (11) FWCC, Chapter 5, Buildings and Building Regulations; FWCC, Chapter 8, Fire Prevention and Protection Code; FWCC, Chapter 10, Nuisances Code; FWCC, Chapter 11, Parks and Recreation Code; FWCC Chapter 12, Solid Waste Code; FWCC, Chapter 13, Streets, Sidewalks and Certain Other Places Code; FWCC, Chapter 16, Utilities Code; FWCC, Chapter 20, Subdivision Code FWCC, Chapter 22, Zoning Code; All standards, regulations and procedures adopted pursuant to the above; and The terms and conditions of any permit or approval issued pursuant to the above. ~ "Emergency" means a situation which in the opinion of the applicable department director requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons, property, or the environment. ORD # ., PAGE 6 "Enforcement o_fficial" means the City Building Official, City Code Enforcement Officers, and all other city officials designated by ordinance or by the City Manager for purposes of enforcing the provisions of this or other chapters and codes designated therein. thereof. "Hearings Examiner" means the Federal Way Hearings Examiner and the office (h) "Omission" means a failure to act. "Person" includes any natural person, any corporation or any unincorporated association or partnership. "Violation" means an act or omission contrary_ to a city development regulation including an act or omission at the same or different locations by the same person. Sec. 1-16. Order to Cease Activity_. (a) Issuance. Whenever the enforcement officer determines that any activity is being conducted or any development is occurring that does not conform to the applicable provisions of this Code, or that civil violation otherwise exists, he or she may issue an order to cease activity directing any person causing, allowing and/or participating in the offending conduct to cease such conduct immediately. (b) Posting and Service o_fOrder. The enforcement official shall serve the order upon the person to whom it is directed, either by: (i) delivering it personally; or (ii) by mailing a copy of the order to cease activity by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address and by posting a copy of the order to cease activity conspicuously on the affected property or structure, or as near to the affected property or structure as feasible. Proof of service shall be made at the time of service by a written declaration under penalty of perjury_ executed by the person effecting the service, declaring the time and date of service and the manner by which service was made. Any failure of the person to whom the order to cease activity is directed to observe the posted order or to actually receive the mailed order shall not invalidate service made in compliance with this section, nor shall it invalidate the order to cease activity. (c) Apt~eal o_fOrder to Cease Activity. An Order to Cease Activity may be appealed under the procedures set forth in section 1-19. During any such appeal, the order to cease activity shall remain in effect. (d) Effect of Order to Cease Activity. When an order to cease activity has been issued, posted and/or served pursuant to this section, it is unlawful for any person to whom the order is directed or any person with actual or constructive knowledge of the order to conduct the activity or perform the work covered by the order, even if the order to cease activity has been appealed, until the enforcement officer has removed the copy of the order, if posted, and issued written authorization ORD # , PAGE 7 for the activity or work to be resumed. Violation of an order to cease activity constitutes a misdemeanor punishable by a fine of up to five thousand dollars ($5,000.00), or imprisonment for up to six (6) months, or both. In addition to such criminal penalties, the City may enforce the order to cease activity in accordance with Section 1-21 below, and/or enforce it in superior court. Sec. 1-17. Notice of Violation and Order to Correct. Issuance. Whenever the enforcement official determines that a civil violation has occurred or is occurring, he/she may issue notice of violation and an order to correct ("notice and order") to the property owner or to any person causing, allowing and/or participating in the violation. The notice and order issued pursuant to this section represents a determination that a violation of the Federal Way City Code has been committed. This determination is final and conclusive unless appealed as provided herein. (b) Content. The enforcement official shall include the following in the notice and order: (1) The name and address of the property owner and/or other person to whom the notice and order is directed; and (2) The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and (3) A description of the violation and a reference to that provision of a city development regulation which has been violated; and (4) A statement of the action required to be taken to correct the violation as determined by the enforcement official and a date or time by which correction is to be completed; and A statement that the person to whom the notice and order is directed must: (i) complete correction of the violation by the date stated in the notice; or (ii) appeal the civil citation as provided in Section 1-19; and A statement that, if such violation is not corrected and the notice and order is not appealed, a moneta~ penalty in an amount per day for each violation as specified by Section 1-17(e) shall accrue against the person to whom the notice and order is directed for each and every day, or portion of a day, on which the violation continues following the date set for correction. (c) Service qforder. The enforcement official shall serve the notice and order upon the person to whom it is directed, either by: (i) delivering it personally; or (ii) by mailing a copy of the ORD # , PAGE 8 order to correct violation by certified mail, postage prepaid, retum receipt requested, to such person at his/her last known address and by posting a copy of the notice and order conspicuously on the affected property or structure. Proof of service shall be made at the time of service by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service and the manner by which service was made. Any failure of the person to whom the notice and order is directed to observe the posted notice and order or to actually receive the mailed notice and order shall not invalidate service made in compliance with this section, nor shall it invalidate the notice and order. d~. Extension. Upon written request received prior to the correction date or time, the enforcement official may extend the date set for correction for good cause. The enforcement official may consider substantial completion of the necessary correction or unforeseeable circumstances which render completion impossible by the date established as a good cause. (e) Monetat~¥ PenalW. The amount of the monetary_ penalty per day or portion thereof that each violation continues beyond the date set in a notice and order is as follows: First violation, one hundred dollars; Second violation, two hundred dollars; Third violation, three hundred dollars; Additional violations in excess of three, five hundred dollars. (f) Continued Duty to Correct. Payment of a monetary_ penalty pursuant to this chapter does not relieve a person of the duty to correct the violation as ordered by the enforcement official. (g) Declaration qfCompliance. When the violation has been corrected and the penalty paid, the enforcement officer shall issue a letter which shall so state, and shall also record the date upon which the violation was fully corrected, beyond which no further penalty shall accrue. (h) Effect o_f Unappealed Notice and Order. If a notice and order is not appealed, each day which the violation continues beyond the date set in order to correct shall constitute a misdemeanor punishable by a fine of up to five thousand dollars ($5,000.00), or imprisonment for up to six (6) months, or both. In addition to such criminal penalties, the City may enforce the notice and order in accordance with Sections 1-20 and 1-21 below, and/or enforce it in superior court. Sec. 1-18. Voluntary Correction Agreement (a) General. Prior to the issuance of a notice and order under Section 1-17, or in lieu thereof, when the City determines that a violation of an ordinance has occurred, the City may enter into a voluntary_ correction agreement wherein the person(s) responsible for the violation or the owner(s) of property on which the violation has occurred or is occurring agrees to abate the violation within a specified time period and according to specified conditions. ORD # , PAGE 9 (b) Contents. A voluntary correction agreement shall be in writing, signed by the person(s) responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring and an enforcement official, and shall contain substantially the following information: The name and address of the person responsible for the violation and/or the owner of property on which the violation has occurred or is occurring; (b) The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; (c) A description of the violation and a reference to the regulation violated; (d) The necessary corrective action to be taken, and a date or time by which the correction must be completed; An agreement by the person responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring that the City may inspect the premises as may be necessa~_ to determine compliance with the voluntary_ correction agreement; An agreement by the person responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring that, if the terms of the voluntary correction agreement are not met, the City may abate the violation and recover its costs and expenses as provided in this article; (g) An agreement that by entering into the voluntary correction agreement, the person responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring waives the right to a hearing before the examiner under this ordinance regarding the matter of the violation, penalty and/or required corrective action; and (h) A statement that failure to comply with the terms of the agreement shall constitute a misdemeanor punishable by a fine not to exceed five (5) thousand dollars ($5,000.00) and/or imprisonment for not more than six (6) months. c(.g_) Modification and Time Extension. An extension of the time limit for correction or a modification of the required corrective action may be granted by the enforcement official if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation but unforseen circumstances render correction under the original conditions unattainable. All modifications or time extensions shall be in writing, signed by the person(s) responsible for the violation and/or the owner(s) of the property on which the violation has occurred or is occurring and an enforcement official. ORD # , PAGE 10 (d) Penalty for non-compliance. Violation of the terms of the agreement shall constitute a misdemeanor punishable by fine not to exceed five thousand dollars ($5,000) per day and/or imprisonment for not more than six (6) months. Further, the City may enter the property, abate the violation and recover all costs and expenses of abatement in accordance with the provisions of this chapter. Sec. 1-19. Appeal to hearings examiner. (a) General. A person to whom an order to cease activity or a notice and order is directed may appeal the order to cease activity or notice and order to the hearings examiner. The person appealing may appeal either the determination that a violation exists, the amount of any monetary_ penalty imposed, the corrective action ordered, or all three. bfbf~ How to appeal. A person may appeal an order to cease activity or notice and order by filing a written notice of appeal with the City Clerk within fourteen(14) calendar days from the date of service of the order to cease activity or notice and order. The appeal must be accompanied by cash or a check, payable to the City of Federal Way, in the amount of $100.00, which is refundable in the event the appellant prevails on the appeal. c~ Effect of appeal. The timely filing of an appeal in compliance with this section shall stay the requirement for action specified in the notice and order that is the subject of the appeal. The monetary_ penalty for a continuing violation does not continue to accrue during the pendency of the appeal; however, the hearings examiner may impose a daily monetary penalty from the date of service of the order to cease activity or notice and order if he finds that the appeal is frivolous or intended solely to delay compliance. The effect of the filing of an appeal of an order to cease activity shall be as provided in section 1-16(d). Notice o_f and hearing before the hearings examiner. Date of hearing. Within 10 days of the Clerk's receipt of the appeal, the hearings examiner shall set a public hearing for a date within 30 days of the Clerk's receipt of the appeal. Notice of hearing. Content. The Clerk shall cause a notice of the appeal hearing to be posted on the property that is the subject of the order to cease activity or notice and order, and mailed to the appellant and property owners located within 300 feet of the property that is the subject of the violation. The Notice shall contain the following: (ii) The file number and a brief description of the matter being appealed. ORD # , PAGE 11 (iii) A statement of the scope of the appeal, including a summary of the errors alleged and the findings and/or legal conclusions disputed in the appeal; (iv) The date, term and place of the public hearing on the appeal. (v) A statement of who may participate in the appeal. (vi) A statement of how to participate in the appeal. (3) Distribution. The Notice shall be mailed and posted at least ten calendar days before the hearing on the appeal. Participation in the appeal. Any person may participate in the public hearing in either or both of the following ways: (i) By submitting written comments to the hearing examiner, either by delivering these comments to the Clerk prior to the hearing or by giving these directly to the hearing examiner at the hearing. (ii) By appearing in person, or through a representative, at the hearing and making oral comments directly to the hearing. The hearing examiner may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing. Conduct of Hearing. The heating examiner shall conduct the hearing on the appeal pursuant to the rules of procedure of the hearings examiner. The city and the appellant may participate as parties in the hearing and each may call witnesses. The appellant shall have the burden of proof by a preponderance of the evidence that a violation has not occurred, that the amount of monetary penalty assessed was not in compliance with section 1-17(e), or that the corrective action ordered is unnecessary_ to cure the violation. Electronic sound recording. The hearing examiner shall make a complete electronic sound recording of the public hearing. Continuation of the hearing. The hearing examiner may continue the hearing if, for any reason, he or she is unable to hear all of the public comments on the matter or if the hearing examiner determines that he or she needs more information on the matter. If, during the hearing, the hearing examiner announces the time and place of the next hearing on the matter and a notice thereof is posted on the door of the hearing room, no further notice of that hearing need be given. (e) Decision of hearing examiner. ORD # , PAGE 12 Vacation. If the hearing examiner determines that the appellant has proven by a preponderance of the evidence that no violation substantially as stated in the order to cease activity or notice and order has occurred, the hearing examiner shall vacate the order to cease activity or notice and order, and order the appeal fee refunded. Affirmance. If the hearing examiner determines that the appellant has not so proven by a preponderance of the evidence, the hearing examiner shall affirm the order to cease activity or notice and order, shall affirm the amount of any monetary_ penalty imposed by the order to cease activity or notice and order, and shall affirm the corrective action ordered. Modification. If the hearing examiner determines that the monetary_ penalty was not calculated in compliance with Section 17(e), or that the corrective action ordered was unnecessary to cure the violation the examiner may modify the penalty amount and/or the abatement action required depending on the specifics of the violation as found at the hearing. In so ordering, the hearing examiner shall consider the following: (i) Whether the intent of the appeal was to delay compliance, or (ii) Whether the appeal was frivolous, or (iii) whether there was a written contract or agreement with another party which specified the securing by the other party of the applicable permit or approval from the city, o.._r_r (iv) whether the applicant exercised reasonable and timely effort to comply with the applicable development regulations, or (v) Any other relevant factors. In modifying a monetary_ penalty under this section, the hearing examiner shall impose, at a minimum, the monetary_ penalty set forth in Section 1-17(e) above, for each separate section of the code violated, and as determined by reference to the applicable number of violations (first, second, third) at issue. In modifying the corrective action ordered, the hearing examiner shall require, at a minimum, any action necessary_ to ensure actual compliance within fourteen (14) days of the date of the examiner's decision. (f) Issuance of Decision. The hearings examiner shall issue a written decision, including findings of fact, conclusions, and order within 14 days of the hearing. ORD # , PAGE 13 (g) dudicial Review. Judicial review of a decision by the hearing examiner may be sought by any person aggrieved or adversely affected by the decision, pursuant to the provisions of the Land Use Petition Act, Chapter 36.70C RCW, if applicable, or other applicable authority, if any, if the petition or complaint seeking review is filed and served on all parties within 21 days of the date of the decision. For purposes of this section, "Aggrieved or adversely affected" shall have meaning set forth in RCW 36.70C.060(2). (h) Effect o_fDecision. If judicial review is not obtained, the decision of the hearing examiner shall constitute the final decision of the City, and the failure to comply with the decision of the heating examiner shall constitute a misdemeanor punishable by a fine of not more than five thousand dollars ($5,000.00) or up to six (6) months imprisonment, or both. In addition to criminal punishment pursuant to this subsection, the City may pursue collection and abatement under Sections 1-20 and 1-21 below. Sec. 1-20. Collection of monetary_ penalty_. (a) The monetary_ penalty constitutes a personal obligation of the person to whom the civil citation is directed. Any monetary_ penalty assessed must be paid to the city clerk within fourteen (14) calendar days from the date of service of the notice and order or, if an appeal was filed pursuant to Section 1-19, within fourteen (14) calendar days of the heatings examiner's decision. (b) The City Attorney, on behalf of the City, is authorized to collect the monetary penalty by use of appropriate legal remedies, the seeking a granting of which shall neither stay nor terminate the accrual of additional per diem monetary_ penalties so long as the violation continues. (1) The City may authorize the use of collection agencies to recover monetary_ penalties, in which case the cost of the collection process shall be assessed in addition to the monetary_ penalty. (2) The City may incorporate any outstanding penalty into an assessment lien when the City incurs costs of abating the violation pursuant to Section 1-21. Section 1-21. Abatement and Additional Enforcement Procedures. (a) Abatement by Violator. In the absence of an appeal, any required abatement shall be executed in the manner and means specifically set forth in the order to correct and/or the voluntary_ correction agreement by the person(s) responsible for the violation. (b) Abatement by Ci_ly. The City may perform the abatement required upon noncompliance with the terms of: (i) an unappealed notice and order; (ii) a voluntary_ correction agreement; or (iii) a final order of the hearing examiner. The costs shall be billed to the person(s) obligated to perform the work under Section 1-17(b)(6), the voluntary correction agreement or hearing examiner decision, as applicable. ORD # , PAGE 14 1~l The City may utilize City employees or a private contractor under City direction to accomplish the abatement. The City, its employees and agents using lawful means are expressly authorized to enter upon the property of the violator for such purposes. (2) The City shall bill its costs, including incidental expenses, of abating the violation to the person(s) obligated to perform the work under the notice and order, voluntary_ correction agreement or hearing examiner decision, which costs shall become due and payable thirty days after the date of the bill. The term "incidental expenses" shall include, but not be limited to, personnel costs, both direct and indirect, including attomey's fees incurred by the City; costs incurred in documenting the violation; the actual expenses and costs to the City in the preparation of notices, specifications and contracts, and in inspecting the work; and the cost of any required printing and mailing. (c) Obstruction with Work Prohibited. No person shall obstruct, impede or interfere with the City, its employees or agents, or any person who owns, or holds any interest or estate in any property in the performance of any necessary act, preliminary_ or incidental to, carrying out the requirements of an order to correct, voluntary correction agreement or order of the hearing examiner issued pursuant to this chapter. A violation of this provision shall constitute a misdemeanor punishable by a fine of not more than five thousand dollars ($5,000.00) per day or up to six (6) months imprisonment, or both. (d) Report to City Council and Hearing on Cost of Abatemenr In the event the person(s) responsible fails to pay within the thirty day period set forth in subsection (b)(2) of this section, the enforcement official shall prepare a written itemized report to the City Council showing the cost of abatement, including rehabilitation, demolition, restorationor repair of such property, including such salvage value relating thereto plus the amount of any outstanding penalties. 1LD A copy of the report and a notice of the time and date when the report shall be heard by the City Council shall be served on the person responsible for payment as provided in Section 1-17(b)(6) at least five days prior to the hearing before the city council. (2) The City Council shall review the report and such other information on the matter as it receives and deems relevant at the hearing. The City Council shall confirm or revise the amounts in the report, authorize collection of that amount or, in the case of a debt owed by a property owner, authorize placement of an assessment lien on the property as provided herein. (e) Assessment Lien. Following the hearing and authorization by the City Council, the City Clerk shall certify to the county treasurer the confirmed amount. The county treasurer shall enter the amount of such assessment upon the tax rolls against the property for the current year and the same shall become a part of the general taxes for that year to be collected at the same time and with interest at such rates as provided in RCW 84.56.020, as now or hereafter amended, for delinquent taxes, and when collected to be deposited to the credit of the general fund of the City. The lien shall be of equal rank with the state, county and municipal taxes. ORD # , PAGE 15 (1) The validity of any assessment made under the provisions of this chapter shall not be contested in any action or proceeding unless the same is commenced within fifteen calendar days after the assessment is placed upon the assessment roll. (f) Additional Remedies. The provisions of this article may be used in lieu of or in addition to other enforcement provisions of this code, unless otherwise precluded by law. (1) In addition to, or in lieu of the provisions of this chapter, the City may, at its option, turn the matter over to collection or commence a civil action in any court of competent jurisdiction to collect for any such charges incurred by the City, to obtain compliance pursuant to this chapter, and/or to collect any penalties that have been assessed. (2) The City may, at its option, seek injunctive or other civil relief in superior court regarding any code violation. Sec. 1-22. Conflicts. In the event of a conflict between this chapter and any other provision of this code or city ordinance providing for a civil penalty, this chapter shall control. Sec. 1-23. Meaning of terms. Whenever the terms "civil infraction" and "civil penalty" are used in any code, ordinance or regulation of the city, those terms shall be deemed to have the same meaning as the terms "civil violation" and "monetary_ penalty", respectively, as used in this chapter. Section 4. Amendment. The following new sections are added to the Federal Way City Code, Chapter 13, "Streets, Sidewalks and Certain Other Places": Sec. 13-181. Civil Enforcement. [sidewalks] Civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. ORD # , PAGE 16 Sec. 13-253. Civil Enforcement. Iright-of-wav vegetationl Civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. Section 5. Amendment. Chapter 22 of the Federal Way City Code is hereby amended as follows: A. The following new section is added to the Zoning Code, Federal Way City Code Chapter 22: Sec. 22-129. Civil Enforcement. The code enforcement officer shall enforce the provisions of this chapter and the terms and conditions of any permit or approval issued pursuant to this chapter as set forth in FWCC section 22-11. B. The following sections of Chapter 22 of the Federal Way City Code are hereby amended: Sec. 22-11. Violation of this chapter. (a) C-riminat-vViolations. It is unlawful for any person to do or cause any of the following to be done and for a property owner to permit any of the following to be done on his or her property contrary to or in violation of this chapter: (1) (2) (3) (4) (5) Construct, in any way alter, or move any improvement. Engage in any activity. Use or occupy any structure or land. Conduct any use. Create any conditions. It is also unlawful for any person to fail to perform any activity or obligation required by this chapter. ORD # , PAGE 17 Violations identified herein shall constitute misdemeanors subject to criminal prosecution, punishable as set forth herein. This chapter is also subject to civil enforcement, as set forth herein. (b) Criminal enforcement Upon conviction of an unlawful act under or violation of this chapter, the property owner or other person may be punished by a fine of not more than $5,000.00 or imprisoned for not more than six months or both for each day or part of a day during which the unlawful act or violation occurs. The property owner or other person may also be ordered to discontinue the unlawful act or correct the violation. Criminal enforcement is in addition to, and does not limit any other forms of enforcement available to the Ci_ty including, but not limited to, civil enforcement as specified herein or FWCC Chapter 1, Article III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this chapter. (c) Civil enforcement penalty. Civil enforcement of the provisions of this chapter and the terms and conditions of any permit or approval issued pursuant to this chapter shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this chapter. Sec. 22-1604. Compliance and enforcement. A. Compliance with other applicable codes. All signs erected or altered under this article must comply with all applicable federal, state and local regulations relating to signs, including without limitation the provisions of the Uniform Sign Code adopted in section 5-281 and the Uniform Building Code adopted in section 5-66 by the city. If any provision of this code is found to be in conflict with any ORD # , PAGE 18 provision of any zoning, building, fire, safety or health ordinance or code of the city, the provision which establishes the higher standard shall prevail. B. Sign maintenance. All signs must be kept in good repair and in a safe manner at all times. The property owner must repair damaged or deteriorated signs within 30 days of notification by the city. The area surrounding freestanding signs must be kept free of litter and debris at all times. C. Administrative fee. All signs removed by the city shall be available for recovery by the owner of such sign for a period of two weeks, after which they will be destroyed. Recovery of any sign removed by the city shall be subject to payment of an administrative fee to partially cover the city's cost in removing and storing the sign as follows: (i) First violation fee -- $ 5.00 per sign. (ii) Subsequent violations fee -- $7.00 per sign. The city shall not be responsible for damages or loss during removal or storage of any signs. This administrative fee shall be in addition to any civil penalty imposed pursuant to this chapter. D. Ci':il ~c;;alty Civil Enforcement. Civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed as set forth below, and by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. ORD # , PAGE 19 ORD # ., PAGE 20 /;\ A ........... + TL-- + ~£+k ..... + ....... I+ ..... A ....... ..+:---- +k .... .('.e ..... shall accrdc. ORD # , PAGE 21 ORD # , PAGE 22 F. Inspection. The administrator is empowered to enter or inspect any building, structure or premises in the city, upon which, or in connection with which a sign is located, for the purpose of inspection of the sign, its structural and electrical connections, and to insure compliance with the provisions of this code. Such inspections shall be carried out during business hours, unless an emergency exists. G. Abatement by the city. (1) Authority to remove sign. As part of any abatement action under FWCC Chapter 1, Article III, the city or its agents may enter upon the subject property and cause any sign which violates the provisions of the sign code to be removed at the expense of the owner, tenant, lessee or occupant, either jointly or severally. In addition to the abatement authority provided by proceedings under FWCC Chapter 1, Article III, the city or its agents may summarily remove any sign placed on a right-of-way or public property in violation of the terms of this article. Recovery of costs for removal of any signs as provided herein shall be as provided in FWCC Chapter 1, Article III. ORD # , PAGE 23 C. The following sections of Chapter 22 of the Federal hereby repealed: Section 22-123 Section 22-124 Section 22-125 Section 22-126 Section 22-127 Way City Code are Section 6. Amendment. Chapter 5 of the Federal Way City Code is hereby amended as follows: See. 5-6. Appeals. Any appeals of any decision rendered pursuant to this Chapter, except decisions pertaining to enforcement of this chapter, shall be made to a hearing examiner appointed by the city. Procedural rules concerning appeals shall be as provided in process ]~ III of chapter 22, Zoning. Sec. 5-((7))8_ - 5-35 Reserved. Sec. 5-41. Appeals. Appeals made from any ruling under this article, except rulings or decisions pertaining to enforcement of this article, shall be pursuant to FWCC Sec. 5-6. Sec. 5-43-_4- 5-65. Reserved. Sec. 5-67. Amendments. The following amendments to the code adopted in section 5-66(a) are hereby adopted: 1LD Section 104.2.4 is amended and supplemented to read as follows: ORD # , PAGE 24 Orders to cease activity. Whenever any work is being done contrary to the provisions of this code, or other pertinent laws or ordinances implemented through the enforcement of this code, the building official may order the work to cease by issuance of an order to cease activity pursuant to the FWCC Section 1-16. 2~) Section 104.2.5 is amended and supplemented to read as follows: Occupancy violations. Whenever any building or structure or equipment therein regulated by this code is being used contrary_ to the provisions of this code, the building official may, by issuance of an order to cease activity under the FWCC Section 1-16, order such use discontinued and the structure, or portion thereof, vacated. (-t-)(3) Section 106.3.1 is amended and supplemented by the addition thereof of a new section to be known as subsection 106.3.1(8), to read as follows: As much information as required to provide an accurate environmental disclosure. (-:3)(4) Section 106.4.1 is amended and supplemented by the addition of a new paragraph to read as follows: When the size of the building is increased or the scope for which the permit was issued is changed, the building official may amend the building permit. When such fees specified in section 107 have been paid and when changes to the plans and application are approved, the building official shall issue an "amended permit," which includes the approved changes as well as the original plans and specifications. The issuance of such amended permit shall void the original permit. (-3-) 5~) Section 106.4.4 is amended and supplemented by the addition of a new paragraph to read as follows: Land surface modification (grading permits, building permits for R-3 and U occupancies) shall expire one year from the date of issue. Building permits may be renewed for one-half of the original permit fee for the first permit issued for such work. (-4-)~_) Section 107.4 is amended and supplemented to read as follows: (d) Expiration of plan review. Applications for building permits which have not been approved by the department of community development, public ORD # , PAGE 25 works department, fire prevention bureau, King County health department, or building division within 180 days following the date of application shall expire by limitation and become null and void if no permit has been issued. Any time spent in the state environmental policy act review process shall not be included in the allotted 180 days. Plans and other data submitted for review thereafter may be returned to the applicant or destroyed by the building official. The building official may extend the 180-day time limitation following the application for permit for a period of not more than 180 days upon request of the applicant showing that circumstances beyond the control of the applicant have prevented action from being taken. The review time by other departments may not be extended. No application shall be extended more than once. In order to renew action on an application after expiration, the applicant shall pay a new application fee, and the "application date" shall be the date of payment of the new application fee. Upon notification of the availability of permit by the building official, such permit must be obtained within 180 days of application date. The building official may extend the 180-day time limitation following the application for a permit by not more than 180 days upon request of the applicant showing that circumstances beyond the control of the applicant have prevented action from being taken. No unissued permit shall be extended more than once. In order to renew action on an application after expiration, the applicant shall resubmit plans and pay a new application fee and any remaining plan review fee. The rules and regulations in effect on the date of such reapplication shall govern the permit application. (-5-)(7) Section 108.4 is amended and supplemented by the addition of a new paragraph to read as follows: Buildings that have not received a final approval shall not be occupied without written approval of the building official. (6-)(8) Section 1804.7 of the Uniform Building Code is hereby amended and supplemented to read as follows: Drainage. Provisions shall be made for the control and drainage of surface water around buildings. Adequate provisions shall be made to insure that underfloor spaces remain free of running or standing water. As a minimum, such drains shall be installed around the perimeter of the building at the footings. Additional drains may be required in the underfloor space. The drainpipes shall be of sufficient size to adequately convey water to an approved location, but shall be a minimum size of four inches. Provisions shall be made to prevent the drainage system from becoming blocked with ORD # , PAGE 26 soil. The building official may waive the provisions of this section when soils appear to adequately drain the site and no water will stand or run under the building. (--7-)(9) Appendix Chapter 34, Section 3406.2 is deleted in its entirety. Sec. 5-68. Uniform Building Code Section 105 amended - Board of Appeal. Section 105 of the Uniform Building Code, as adopted by this chapter, is hereby amended to read as follows: 105.1 General. "~-: ..... '~ "~:~:--~ · ,,. .... ~o ,~,,~ ,~,. ........ of aA_ppeals of ordcrs, decisions; or determinations made by the Building Official relative to the application and interpretation of this code, except orders, rulings or decisions pertaining to enforcement of this code, shall be made to the Hearing Examiner pursuant to FWCC Sec. 5-6. 105.2 Limits of Authority. The Hearing Examiner shall have no authority relative to the interpretation of the administrative provisions of this code nor shall the Hearing Examiner be empowered to waive requirements of this code. 105.3 Enforcement. Civil enforcement of the provisions of this code and the terms and conditions of any permit or approval issued pursuant to this code shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this code. Sec. 5-91. Appeals. Appeals made from any ruling under this article, except rulings or decisions pertaining to enforcement of this article, shall be pursuant to FWCC section 5-6. Sec. 5-933 - 5-100. Reserved. Sec. 5-143. Appeals. Appeals made from any ruling under this article, except rulings or decisions pertaining to enforcement of this article, shall be pursuant to FWCC section 5-6. Sec. 5-1445 - 5-165. Reserved. ORD # , PAGE 27 Sec. 5-167. Appeals. Appeals made from any ruling under this article, except rulings or decisions pertaining to enforcement of this article or any of the codes adopted hereunder, shall be pursuant to FWCC section 5-6. Sec. 5-168. Amendments - Uniform Code for the Abatement of Dangerous buildings_- (1) Sec 202 is amended as follows: Section 202 Abatement of Dangerous Buildings. All buildings or portions thereof which are determined after inspection by the building official to be dangerous as defined in this code are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal in accordance with the procedure specified in Section 401 of this code as amended herein and FWCC Chapter 1, Article III, Civil Enforcement of Code. In the event of any conflict between the applicable provisions of this code and FWCC Chapter 1, Article III, the more restrictive provisions shall apply. (2) Section 205 is deleted in its entirety. (3) Sec 401.2 is amended as follows: Section 401.2 Notice and Order. The building official shall issue a notice and order ..... , ................... ,., ,~ ..... ,, ....... ~. pursuant to FWCC Section 1-17. In addition to the information required by FWCC Section 1-17, :F the notice and order shall contain: ~1__. A statement that the building official has found the building to be dangerous with a brief and concise description of the conditions found to render the building dangerous under the provisions of Section 302 of this code. ORD # , PAGE 28 4. 2_. Statements advising that if any required repair or demolition work (without vacation being also required) is not commenced within the time specified, the building official (i) will order the building vacated and posted to prevent further occupancy until the work is completed, and (ii) may proceed to cause to be done and charge the costs .thereof against the property or its owner. (4) Sections 401.4 and 401.5 are deleted in their entirety. (5) Section 403 is amended as follows: Section 403 Repair, Vacation and Demolition. The following standards shall be followed by the building official (and by the board of appeals hearings examiner if an appeal is taken) in ordering the repair, vacation or demolition of any dangerous building or structure: 1. Any building declared a dangerous building under this code shall be made to comply with one of the following: 1.1 The building shall be repaired in accordance with the current building code or other current code applicable to the type of substandard conditions requiring repair; or 1.2 The building shall be demolished at the option of the building owner; or ORD # , PAGE 29 1.3 If the building does not constitute an immediate danger to the life, limb, property or safety of the public it may be vacated, secured and maintained against entry. 2. If the building or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or its occupants, it shall be ordered to be vacated. (6) Section 404.1 is amended as follows: Section 404.1 Posting. Every notice to vacate shall be issued, served and posted as an Order to Cease Activity under FWCC Section 1 16, :- ~"":': .... ~'~: ....... -' ,.,.o ~ ...................... 3, and shall be posted at or upon each exit of the building and shall bc in .............~ ..... ,., ....... ~, ....... include the following wording: DO NOT ENTER UNSAFE TO OCCUPY It is a misdemeanor to occupy this building, or to remove or deface this notice. Building Official City of Federal Way (7) Chapters 5 and 6 are deleted in their entirety. (8) Sections 701.1 and 701.2 are deleted in their entirety. (9) Chapters 8 and 9 are deleted in their entirety. Sec. 5-169 - 5-215. Reserved. Sec. 5-218. Enforcement. The building official is charged with the duty of enforcing this article and determining whether or not the provisions and requirements of this article have been complied with. Civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. ORD # , PAGE 30 Sec. 5-226. Appeals proeess. '.",~,--'-, ,~v~',-, ...... ~': -"- ',,,.y ...... ~' ........ o ,-'~ .......... 5 ,,m, ......... 1 bc as prc, vided m ...... ~, ............. 5. Appeals made from any ruling under this article, except rulings or decisions pertaining to enforcement of this article, shall be pursuant to FWCC section 5-6. Sec. 5-322. Amendments. The following amendments to the codes adopted in section 5-320 are hereby adopted: Section 204 of the Uniform Administrative Code as adopted by this chapter, is hereby amended to read as follows: (1) Section 204. Appeals. 204.1 General. "-~-: ..... -~--~ ....... 5o and,~,.,.,o,,.,,o'~^:-:--~ c,f aA_ppeals of ....... decisions; or determinations made by the Building Official relative to the application and interpretation of this code, except orders, rulings or decisions pertaining to enforcement of this code, shall be made to the Hearing Examiner pursuant to FWCC Sec. 5-6. 204.2 Limits of Authority. The Hearing Examiner shall have no authority relative to the interpretation of the administrative provisions of this code nor shall the Hearing Examiner be empowered to waive requirements of this code. 204.3 Enforcement. Civil enforcement of the provisions of this code and the terms and conditions of any permit or approval issued pursuant to this code shall be govemed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this code. (2) Section 301.1.3 of the Uniform Administrative Code Provisions for the NEC is amended to read as follows: (b) Exempt work. An electrical permit shall not be required for the following: Portable motors or other portable appliances energized by means of a cord or cable having an attachment plug end to be connected to an approved receptacle when that cord or cable is permitted by this code. ORD # , PAGE 31 Repair or replacement of fixed motors, transformers or fixed approved appliances of the same type and rating in the same locations. 3. Temporary decorative lighting. Repair or replacement of current-carrying pans of any switch, contractor or control device. o Reinstallation of attachment plug receptacles, but not the outlet therefor. Repair and replacement of any over current device of the required capacity in the same location. Repair or replacement of electrodes or transformers of the same size and capacity for signs or gas tube systems. 8. Taping joints. 9. Removal of electrical wiring. 10. Temporary wiring for experimental purposes in suitable experimental laboratories. 11. The wiring for temporary theater, motion picture or television stage sets. 12. A permit shall not be required for the installation, alteration or repair of electrical wiring, apparatus or equipment or the generation, transmission, distribution or metering of electrical energy or in the operation of signals or the transmission of intelligence by a public or private utility in the exercise of its functions as a serving utility. Exemption from the permit requirements of this code shall not be deemed to grant authorization for any work to be done in violation of the provisions of this code or any other laws or ordinances of the jurisdiction. Bo ORD # The following new sections are added to Chapter 5 of the Federal Way City Code, as follows: , PAGE 32 Sec. 5-7. Enforcement. [general] Notwithstanding any provision to the contrary_, civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. Sec. 5-43. Enforcement. [administrationl Notwithstanding any provision to the contrary, civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil actions. Sec. 5-92. Enforcement. [plumbing code[ Notwithstanding any provision to the contrary, civil enforcement of the provisions of this article and the terms and conditions of any permit or approval issued pursuant to this article shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. Section 7. Amendment. Chapter 10 of the Federal Way City Code shall be amended as follows: Sec. 10-29. Pena~ Enforcement. ...... '~ ¢'~='~ '~" for a ..... ,, ........ Civil enforcement of the provisions of this chapter shall be governed by FWCC Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct ORD # , PAGE 33 or discourage unlawful acts in violation of this chapter. For second and subsequent c, ffcn$c3 violations of the provisions of this chapter, the person shall also be guilty of a misdemeanor and upon conviction shall be punished as provided in section 1-13. Section 8. Amendment. Chapter 11 of the Federal Way City Code shall be amended as follows: Sec. 11-53. Responsibility_ ~ for violation. Anyone concerned in the violation of this article, whether directly committing the act or omitting to do the thing constituting the offense, or who aids or abets the same, shall be a principal under the terms of this article, and may be prosecuted and have the code enforced against him or her -~-~" ~c ...... ~-~ --~: ..... ~ .......... ~ Sec. 11-54. Enforcement Pcr. a ............. (a) Civil enforcement of the provisions of this article shall be governed by Federal Way City Code Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. (b) Conviction of a violation of or failure to comply with the provisions of this article shall also constitute a misdemeanor and shall be punished as provided in section 1-13, except for violations of provisions that constitute gross misdemeanors, conviction of which shall be punished by a fine not to exceed $5,000.00 or imprisonment in jail not exceeding one year, or by both such fine and imprisonment. Section 9. Amendment. Chapter 12 of the Federal Way City Code shall be amended as follows: Sec. 12-21. Administration and Enforcement. ~ The director, or the director's representative, is hereby authorized and directed to administer the collection and disposal of all garbage, recyclables and yard waste in the city, and to enforce the provisions of this chapter. ORD # , PAGE 34 (b) Civil enforcement of the provisions of this article, as against all persons other than authorized franchisees, shall be governed by Federal Way City Code Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein or in Federal Way City Code section 1-13, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this article. Enforcement of the provisions of this article and chapter against authorized franchisees shall be as provided by the applicable franchise agreement and as otherwise provided by law, including but not limited to criminal sanctions as specified herein or in Federal Way City Code section 1-13, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct 0r discourage unlawful acts in violation of this article. Section 10. Amendment. Chapter 16 of the Federal Way City Code shall be amended as follows: Sec. 16-37. Enforcement officer. The public works department director or designee shall be responsible for the ~ ................... enforcement of the provisions of this division. Sec. 16-38. Criminal Enforcement pcnal,~'. Any person convicted of violating any provision of this division shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than six months, or both, by such fine and imprisonment for each day or part of a day during which the unlawful act or violation occurs. The property owner or other person may also be ordered to discontinue the unlawful act or correct the violation. Criminal enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, civil enforcement as specified herein or FWCC Chapter 1, Article III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this division. Sec. 16-39. Civil Enforcement penalty. ORD # , PAGE 35 .... ,~ ......... a~cr being ordered to do Civil enforcement of the provisions of this division shall be governed by Federal Way City Code Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified herein and in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this division. ..... " Reserved. Sec. 16-40. '~'~- ' ' .... -'-- Section 11. Amendments. Chapter 20 of the Federal Way City Code shall be amended as follows: Sec. 20-5. Violations, enforcement and penalties. (a) Any person or any agent thereof who divides land into lots, tracts, or parcels of land and sells or transfers, or offers or advertises for sale or transfer, any such lot, tract or parcel without having a final plat, short plat, boundary line adjustment, or binding site plan filed for record, or who otherwise violates or fails to comply with any of the provisions of this chapter, or any amendment thereto, shall be guilty of a gross misdemeanor punishable by a fine of not more than $5,000.00 for each offense. Each such sale, offer for sale, lease or transfer of each separate lot, tract or parcel of land shall be deemed a separate and distinct offense; provided, however, an offer or agreement to sell, lease, or otherwise transfer a lot, tract or parcel of land following preliminary plat approval shall not be deemed in violation of this chapter if performance of the offer or agreement is expressly conditioned on the recording of the final plat containing the lot, tract or parcel. All payments on account of an offer or agreement conditioned as provided in this section shall be deposited in an escrow or other regulated trust account and no disbursement to the seller shall be permitted until the final plat is recorded. (b) Whenever land within a subdivision granted final approval is used in a manner or for a purpose which violates any provision of this chapter, any provision of the local subdivision regulations, or any term or condition of plat approval prescribed for the plat by the local government, then the prosecuting attorney, or the attorney general if the prosecuting attorney shall fail to act, may commence an action to restrain and enjoin such use and compel compliance with the provisions of this chapter or the local regulations, or with such terms or conditions. The costs of such action may be taxed against the violator. ORD # , PAGE 36 (c) Any person who violates any court order or injunction issued pursuant to this chapter shall be subject to a fine of not more than $5,000.00 or imprisonment for not more than 90 days or both. (d) No building permit, septic tank permit, or other development permit, shall be issued for any lot, tract, or parcel of land divided in violation of this chapter or local regulations adopted pursuant thereto unless the authority authorized to issue such permit finds that the public interest will not be adversely affected thereby. The prohibition contained in this section shall not apply to an innocent purchaser for value without actual notice. All purchasers' or transferees' property shall comply with provisions of this chapter and each purchaser or transferee may recover his or her damages from any person, firm, corporation, or agent selling or transferring land in violation of this chapter or local regulations adopted pursuant thereto, including any amount reasonably spent as a result of inability to obtain any development permit and spent to conform to the requirements of this chapter as well as cost of investigation, suit and reasonable attorneys' fees occasioned thereby. Such purchaser or transferee may as an alternative to conforming his property to these requirements, rescind the sale, or transfer and recover costs of investigation, suit and reasonable attomeys' fees occasioned thereby. (e) In the alternative or, to the extent allowed by law, in addition to the remedies prescribed in this section, the city, through its authorized agents, may commence an action to enforce this chapter, any local subdivision regulation or any term or condition of plat approval prescribed by the City Council, according to Federal Way City Code Chapter 1, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the City including, but not limited to, criminal sanctions as specified in this section and in FWCC Chapter 1, Articles II -III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this chapter, any local subdivision regulation or any term or condition of plat approval prescribed by the City Council. The City may also, commence an action to restrain and enjoin violations of this chapter or of any term or condition of plat approval prescribed by the city, and/or to compel compliance with the provisions of this chapter, or with such terms or conditions. In the event such action is commenced, :F_the costs of such action may be taxed against the violator. Section 12. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. ORD # , PAGE 37 Section 13. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 14. Effective Date. This ordinance shall be effective thirty (30) days after passage and publication as provided by law. PASSED by the City Council of the City of Federal Way this ,1999. day of CITY OF FEDERAL WAY ATTEST: MAYOR, RON GINTZ CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. K: \cd\ordina~ciwiol 3 ORD # , PAGE 38 ( CITY OF FEDERAL WAY Planning Commission DATE: TO: FROM: SUBJECT: January 4, 1999 City Council Robert Vaughan, Chair Planning Commission Recommendation - Citation Authority For Code Enforcement; Outside Storage Standards For Residential Zones; Construction Times I. BACKGROUND The Federal Way Comprehensive Plan contains goals and policies that provide for the protection of the inhabited environment through policies intended to protect it from the adverse impact of noise; illegal land uses and activities; and enforcement of the laws that establish the standards supported by these policies. Currently, the City's code enforcement staff are given the responsibility to enforce those standards as established in the various chapters of the Federal Way City Code (FWCC). This amendment establishes a civil citatiOn enforcement process for the entire code similar to the enforcement program currently used for the sign code. Federal Way District Court would become the last resort rather than the first stop for violations. The civil process is a faster, more effective method of dealing with many code violations. Among the codes protecting residential areas from the impact of noise from permitted construction activity are ones that limit the times of the day and days of the week such intense activity may occur. These hours are in conflict with other standards established in the City's nuisance noise provisions in Chapter 10 of the FWCC. This conflict has made these standards difficult if not impossible to enforce equitably and without confusion. Lastly, concerns were expressed to the City Council during the investigation and enforcement of a junk vehicle case that the use of landscaped areas outside of the required yard for parking and storage for operable vehicles was legal. These citizens believed this created, a situation that was both detrimental to the aesthetics of the community and degraded the health and safety of the neighborhood. The intent of these three separate code amendments is to further the City's goal of improving the health and safety of its citizens. -1- ( II. PLANNING COMMISSION PROCESS The Planning Commission held both a work session and public hearing. The work session was held November 18, 1998. This provided the commission an opportunity to review the proposals in depth and ask detailed questions. From this session came specific changes to the proposals. A Public Hearing was held December 2, 1998. Minor technical changes were made based on additional Planning Commission comments. City staff has prepared draft amendments to the requirements in the zoning code concerning civil citation authority, outdoor storage of vehicles, development activities, and related noise nuisances. The drafts are attached to this document. III. SUMMARY OF AMENDMENTS The following list summarizes the major code amendments reviewed by the Planning Commission during this code revision process. 1. A civil citation system has been drafted that includes the following major features: ao Co d° Decriminalizes zoning and other nuisance related codes. Establishes civil penalties for violations of those codes ranging from $100 per day to $500 per day. Authorizes Code Compliance Officers to issue a civil citation after appropriate notice. Establishes an appeal procedure and criteria for affected persons wishing to appeal a civil citation, Appeal hearings are heard by the Federal Way Hearing Examiner rather than in Federal Way District Court. ° Outdoor storage standards are established for operable and inoperable vehicles. These standards include: ao Requirement that all junked, wrecked, dismantled, or inoperable vehicles be stored in a fully enclosed structure. All operable vehicles must be parked on an approved impervious surface such as a driveway or in a carport or garage. Standards for operable vehicle parking do not apply to single family lots of 20,000 square feet or more. ° Creates consistency between development activity hours and nuisance noise code requirements. -2- ( ( IV. PLANNING COMMISSION FINDINGS &RECOMMENDATIONS The Planning Commission based its recommendation for adoption of the proposed amendments to the Federal Way City Code relative to civil citation authority, outdoor storage, and development activity and nuisance noises based on the following findings: The City's Code Compliance Officers are responsible for enforcement of the City's codes and regulations; and They currently do not possess the authority to properly sanction certain code violations within their area of responsibility; and o The proposed amendments are consistent with the provisions of the Housing Chapter of the Federal Way Comprehensive Plan (FWCP) including the following: HP5 - Maintain a strong code enforcement program to protect residential areas from illegal land use activities; and o The citizen concerns about improper outdoor storage of vehicles are consistent with the Land Use Chapter of the FWCP including the following: LUP1 -Develop residential design performance standards to maintain neighborhood character and ensure compatibility with surrounding uses; and o The development activity hours of Chapter 22 of the FWCC were not consistent with the definition of a nuisance noise as defined by Chapter 10 of the FWCC; and the Natural Environment Chapter of the FWCP states: NEG14 - Develop programs and/or regulations to address noise pollution in all areas of the City. The Federal Way SEPA responsible official has determined SEPA review has already been completed as part of the adoption of the original zoning code; and The proposed code amendments would not adversely affect the public health, safety, or welfare. Robert Vaughan,'Chair Federal Way Planning Commission K ~COMMON AD~ADMINI~PLANCOM\lgqg~PCMEMO -3- CITY OF FEDERAL WAY DATE: TO: FROM: SUBJECT: March 30, 1999 CITY COUNCIL LAND USE AND TRA~gV>I~ORTATION COMMITTEE Martin Nordby, Code Compliance Officei~ Code Amendments - Citation Authority for Code Compliance; Outdoor Storage Standards for Residential Zones; Construction Times Attached are three draft code amendments that extend the current civil penalties ordinance used for sign code enforcement to the rest of the city code, establish more specific outdoor vehicle storage standards for residential zones, and correct a discrepancy between the current nuisance noise code and permitted construction hours. In drafting the civil penalties ordinance staff were able to utilize both the experience of other cities and the experience gained from our own sign code enforcement program to create a greatly enhanced enforcement ordinance. Provisions to reduce frivilous appeals and their added work and expense are included in this amendment. It also creates a specific process for hearing appeals and directs the hearings examiner to provide better direction in his/her decisions to both staff and the appeallant. Greater than typical research was conducted concerning outdoor vehicle storage. Due to the limited number of local jurisdictions using such an ordinance, cities were also contacted in the states of California, Arizona, New Mexico, and Indiana. The draft amendment is based on these examples plus considerable input from the Planning Commission. The proposed amendments to the noise and construction time standards are primarily housekeeping in nature. The ordinances conflicted in their respective times when construction activity and its related noise impacts was permitted. This has been corrected with no alteration to the primary intent of either ordinance. The Planning Commission reviewed all three amendments over a period of two meetings; first, a work session on November 18, 1998, then a Public Hearing held December 2, 1998. Minor technical changes were recommended by the Commission and are reflected in the draft amendments. Included with the amendments is the Planning Commission's findings and recommendation for adoption.