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Res 93-129 RESOLUTION NO. 93-129 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, APPROVING WITH CONDITIONS THE AMENDMENT TO THE PLAT OF DAVID LITOWITZ AND APPROVING LAND SURFACE MODIFICATIONS AND IMPROVEMENTS WITHIN A MAJOR STREAM SETBACK, A REGULATED WETLAND SETBACK AND A REGULATED WETLAND, AND ESTABLISHMENT OF RELOCATED WETLAND AND BUFFERS THERETO; FEDERAL WAY FILE NO. UPIII-91-0001, FEDERAL WAY HEARING EXAMINER NO. 92-11. WHEREAS, applicant has applied to Federal Way for approval of a plat amendment pursuant to RCW 58.17.215 and for modifications to major stream setback requirements pursuant to Federal Way Zoning Code 80.105, modification to regulated setback area pursuant to Federal Way Zoning Code 80.160, and for modification and relocation of wetlands and establishment of wetland buffer lines pursuant to Federal Way Zoning Code 80.35 ("Litowitz Application"); and WHEREAS, the Federal Way Land Use Hearing Examiner held a public hearing on November 24,1992, on the Litowitz Application; and WHEREAS, at the conclusion of said hearing the Federal Way Land Use Hearing Examiner issued its Findings, Conclusions, and Recommendation with Conditions on December 10, 1992; and WHEREAS, the city Council of the City of Federal Way is the governmental body having jurisdiction and authority to pass upon the approval, denial or modification of the plat and sensitive area modifications pursuant to Federal Way Zoning Codes; and COpy WHEREAS, the City Council having considered the written record and recommendation of the Hearing Examiner, pursuant to Federal Way Zoning Code 155, on this date; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: section 1. The Findings, Conclusions and Recommendation of the Federal Way Land Use Hearing Examiner issued on December 10, 1992, following a hearing held on November 24, 1992, which included a recommendation to approve the requested modifications to the sensitive areas and the amendment to the Litowitz plat, subject to certain conditions, are hereby adopted as the Findings, Conclusions and Decision of the City Council. section 2. Based upon the Findings, Conclusions and Recommendation of the Federal Way Land Use Hearing Examiner, as adopted by reference by the City Council set forth hereinabove, the Application of David Litowitz for amendment to plat, and land surface modifications and improvements within a major stream setback, a regulated wetland setback and a regulated wetland, and establishment of relocated wetland and wetland buffer areas, Federal Way File No. UPIII-91-0001, Federal Way Hearing Examiner No. 92-11, is hereby approved subject to the Conditions contained in the Recommendation of the Federal Way Land Use Hearing Examiner Report for this matter dated December 10, 1992, attached hereto as Exhibit A and incorporated by reference; and subject further to the conditions that the plat access road created by King County Short Plat #5943 which is located along the east property line of the - 2 - subject property shall be eliminated in its entirety, and a new plat access road shall be located along the west property line of subject property, and that the Applicant shall record a release of that certain easement recorded on July 17, 1968, under King County Recording No. 6362310. section 3. The conditions of approval of the Litowitz Application are all integral to each other with respect to the City Council finding that the public use and interest will be served by the amendment to the plat and sensitive area modifications. Should any court having jurisdiction over the subject matter declare any of the conditions invalid, then, in said event, the proposed plat amendment and sensitive area modifications granted in this resolution shall be deemed void, and the Litowitz Application shall be remanded to the Hearing Examiner for the City of Federal Way to review the impacts of the invalidation of any condition or conditions and conduct such additional proceedings as are necessary to assure that the amended plat makes appropriate provisions for the public health, safety and general welfare and other factors as required by RCW Chapter 58.17 and applicable County and/or city ordinances, rules and regulations and forward such recommendation to the City Council for further action. section 4. Severabili tv. If any section, sentence, clause or phrase of this resolution should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase - 3 - of this resolution. section 5. Effecti ve Date. This resolution shall be effective immediately upon passage by the Federal Way city Council. RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, this ~ day of January , 1993. c~ WA' MA OR, ROBERT ~ EN M.SWANEY, CMC APPROVED AS TO FORM: ~tØ EY, CAROLYN A. LAKE FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. 93-129 January 13,1993 January 19,1993 la\kathleer\reso\litowitz - 4 - EXHIBIT A BEFORE THE HEARING EXAMINER OF THE CITY OF FEDERAL WAY IN THE MATTER OF THE APPLICATION OF: FILE #UPill-91-0001 FWHE # 92-11 DAVID LITOWITZ For Process ill Approval of Land Surface Modifications and Improvements Within a Major Stream Setback, a Regulated Wetland Setback, and a Regulated Wetland. RECOMMENDATION I. SUMMARY OF APPLICATION The applicant proposes to construct two single family residences, one each on two residential lots. The proposal requires land surface modifications and placement of structures and improvements within a major stream setback, a regulated wetland setback, and a regulated wetland. TI. PROCEDURAL INFORMATION Hearing Date: Decision Date: November 24, 1992 December 10, 1992 At the hearing the following presented testimony and evidence: 1. Lori Schill, Associate Planner, City of Federal Way 33530 - 1st Way South, Federal Way, WA 98003 2. Jeffrey S. Jones, Login & Jones Associates, Inc. 8678 Highland Drive South, Seattle, WA 98118 3. Paul Rohrer 2210 South 336th Street, Federal Way, WA 98003 4. Carolyn Lake, City Attorney, City of Federal Way 33530 - 1st Way South, Federal Way, WA 98003 At the hearing the following exhibits were admitted as part of the official record of these proceedings: LITOWITZ APPLICATION UPill-91-OOO1; FWHE #92-11 PAGE 2 Staff Report with Exhibits: a. RCW 58.l7.215 aa. Wetland Buffer Map b. FWZC Chapter 80, Sensitive Areas Ordinance, adopted February 27, 1990 c. King County Short Plat #5943, as drawn by Bennett PS&E, Inc., 4/10/90 d. Vicinity Map e. Land Use Map f. Mitigated Determination of Non-Significance g. 'Wetland Assessment, Litowitz Short Plat 5943', prepared by jeffrey jones, dated march 4, 1992 (copy provided to Hearing Examiner) 'Addendum #1, Revised Mitigation Plan', prepared by Jeffrey Jones, dated July 10, 1992 Site Plan Landscape Plan Wetland Analysis Required by Sections 80.35 and 80.160.4 FWZC (adopted 2/27/90) Letter of August 21, 1992, to Philip Keightley from David Litowitz, applicant, requesting modification of driveway setback Letter of September 11, 1992 to David Litowitz from Ron Garrow, approving requested driveway setback modification Applicant's responses to "reasonable use" decisional criteria, received by the City October 17, 1991. Conservation Easement Report. 1. h. i. j. k. 2. 1. m. n. ill. FINDINGS OF FACT The applicant has a possessory ownership interest in lots 3 and 4 of King County Short Plat Number 5943 which is bordered on the west by Interstate-S, and on the south by South 336th Street. Lots 3 and 4 combined contain approximately .65 acres. 1. Both 10ts are heavily impacted by a tributary to Hylebos Creek and its associated wetland. Pursuant to Chapter 80 of the Federal Way Zoning Code (FWZC), the site is designated as environmentally sensitive. The tributary to Hy1ebos Creek is a "major stream" and requires a 100-foot setback outward from the top of the bank (FWZC 80.75(1)(a». The wetlands associated with the tributary meet the definition "regulated wetlands" set forth in Section 80.145 FWZC. The setback area for regulated wetlands is 100 feet in every direction (FWZC 80.150). 2. 3. The wetlands and their loo-foot setback consume both lots entirely. If development is to occur on either lot the applicant must obtain authority to do the following: LITOWITZ APPLICATION upm-91-0001; FWHE #92-11 PAGE 3 a. Intrude into a major stream setback as authorized by FWZC 80.105; b. Intrude into a regulated wetland setback as authorized by FWZC 80.160; c. Intrude into a regulated wetland for private purposes as authorized by FWZC 80.35; d. Establish a permanent wetland buffer and building setback line on adjacent property to ensure that the above actions will not be detrimental to any other property in the area of the subject property as required by FWZC 80.160.4. 4. Lots 3 and 4 are zoned multi-family residential. However, considering the sensitive areas and environmental constraints, the applicant is proposing to develop each lot with a 1,300 square foot single-family residence, including garage, along with associated parking, driveways, emergency vehicle turnaround, and d~age facilities. The proposal places site improvements as far from sensitive areas as possible to minimize encroachment. The original short plat approved the plat access road along the east property line. However, the east property line is the site of the Hylebos tributary, and the new site plat relocates the plat road to the west property line. Single-family residences have been constructed on Lots 1 and 2 of the short plat. 5. The applicant commissioned Login and Jones Associates, Inc., to prepare a wetland analysis, including impact assessment and conceptual mitigation plan. This report was submitted March 4, 1992, and accepted by the City of Federal Way environmental official and the City of Federal Way Department of Community Development. The wetland report is accurate and correctly prepared in accordance with vested regulations. 6. According to the wetland analysis the total area of on-site regulated wetland is .47 acres and is classified as palustrine forested wetland, which requires a loo-foot building setback in every direction. As previously indicated, no portion of either Lot 3 or Lot 4 lies outside of the required wetland setback. 7. Development of a single-family residence on Lot 3 will displace no wetlands, but development of a single-family residence on Lot 4 will displace approximately 3,800 square feet of regulated wetland. The applicant proposes to create 3,917 square feet of on-site in kind palustrine forested wetland to compensate for the loss. The functional goals of the wetland mitigation plan are to promote the development of planted native species for improved bio-fIltration, provide increased seasonally flood storage capacity, and improve ground water exchange functions. The removal of existing fill material from the site should substantially improve the ground water exchange. The wetland mitigation project will be monitored for five years. LITOWITZ APPLICATION UPill-91-0001; FWHE #92-11 PAGE 4 8. Section 80.160.4 FWZC allows the City to approve any requests to locate an improvement or engage in land surface modification within a setback area from a regulated wetland if six criteria are met by the application. Findings required by each criteria are hereby made as follows: a. The applicant's proposal will not adversely affect water quality of the wetland or the tributary to Hylebos Creek. Conditions required through the mitigated determination of non-significance will ensure no net loss of water quality function provided by the existing wetlands. b. The proposed single-family homes will not destroy nor damage a significant habitat area. The site is adjacent to Interstate-5 and does not provide significant habitat area. The applicant will enhance and maintain the open space, existing vegetation, and habitat to the maximum extent feasible. The wetland mitigation plan promotes the development of planted native species including herbaceous vegetation. Habitat area should be improved following the implementation of the wetland mitigation plan. c. The proposed development will not adversely affect drainage or storm water retention capabilities. The applicant is increasing the amount of wetlands available to serve this important function. In addition to increased wetland size, additional surface water facilities will be supplied in accordance with the 1990 Surface Water Design Manual. Furthermore, a bio-filtration swale will be installed alongside the plat road to purify storm water entering the wetlands. d. The proposed development will not lead to unstable earth conditions, nor create erosion hazards. Mitigating measures required of the applicant include the possibility of limiting activities on the site to specific months of the year and the planting of fast growing ground cover in disturbed areas to prevent post- development erosion and provide sedimentation control. There are no steep slopes on the site which has an elevation difference of approximately 7 feet. e. The proposal will not be materially detrimental to any other property in the area, nor to the City as a whole. The City is proposing to establish the permanent building setback lines from the wetlands on the adjoining property to the west owned by Mr. Paul Rohrer. The setback from the newly created wetlands is proposed at the same location as it currently is from the naturally occurring wetlands. Therefore, the relocated wetland will not increase the total square footage of Mr. Rohrer's property that is currently incumbered by wetland setback LITOWITZ APPLICA nON UPill-91-0001; FWHE #92-11 PAGE 5 restrictions. In addition, the location of the private access is an intervening impact between the wetlands and the portion of the setback located on Mr. Rohrer's property. The true functional value of the wetland buffer on Mr. Rohrer's property is minimized by the location of the access road. Mr. Rohrer remains concerned, however, that there is now an actual wetland closer to his site than before, which could mean the City will review any future request he makes for a wetland buffer modification more harshly than if the wetlands were located in their natural position. However, such concern is not valid for the following reasons: 1. Upon development of the site there will now be a paved plat road between the wetlands and Mr. Rohrer's property, which, both the applicant's wetlands expert and the Community Development Department agree, minimizes the functional value of the wetland buffer located on Mr. Rohrer's property; 2. Each request for modification is determined on a case-by-case basis, and a denial of this request would be based on mere speculation as to how the City might view a future modification request if one is made; 3. It would be difficult for the City to justify denial of a modification request by Mr. Rohrer when it has allowed a road, two houses, and assessory uses in the wetland buffer and wetland itself. f. The modification is necessary for reasonable development of the applicant's property. No development of the site whatsoever may occur without a modification to the wetland setback and invasion of the wetlands themselves. 9. Section 80.35 FWZC sets forth criteria, which if met, allow the requirements of the environmental sensitive areas ordinance to be modified or waived on a case-by-case basis if such requirements would result in an applicant being unable to use any of the subject property for any reasonable use. The criteria for a modification or waiver is contained in Section 80.35.3 FWZC. Findings on each criteria are hereby made as follows: a. The application of the provisions of this chapter eliminate any profitable use of the subject property. As previously stated, there is a 100-foot building setback required from major streams and regulated wetlands. Application of said building setback prohibits any intrusion into either the wetlands or the setback for purposes of private development. The entire property is located within wetland buffers, wetlands, or a stream bed. Lot 4 may not be developed without displacement of a small portion of a wetland. Thus, no development may occur on the site without a modification or waiver. The applicant's proposal of 2 single-family LITOWITZ APPLICATION UPID-91-0001; FWHE #92-11 PAGE 6 10. residential homes is a significant downsca1ing from the existing zoning of multi- family. Without the modification there could be no profitable use of the property. b. It is solely the implementation of the sensitive areas ordinance and not other factors which precludes profitable use of the subject property. The site is zoned RM 3.6, and a four-lot short plat was previously approved for development. There are no other City policies, development restrictions, or other known factors which would preclude development of these lots in accordance with the current zoning. c. The applicant has in no way created or exacerbated the condition which forms the limitation on the use of the subject property, nor in any way contributed to such limitation. The lots have not been disturbed since the applicant purchased the property in 1989. d. The applicant had no knowledge of the limitations at the time he acquired the subject property. The applicant purchased the property in 1989 prior to the incorporation of the City of Federal Way and the adoption of its environmental policies that now constrain development of the lots. The King County environmental policies were considerably less stringent that those subsequently adopted by Federal Way. King County's required setbacks for these wetlands were 25 feet as compared with Federal Way's 100-foot setback. e. The waiver or modification will not lead to, create, nor significantly increase the risk of injury or death to any person or damage to improvements on or off the subject property. Public safety will actually be increased by improvements to the private easement road including emergency access. The modifications to the wetland and stream setbacks will not impact the existing residences, nor any adjacent improvements. Landscape buffers and protective vegetation along the new wetland borders will discourage human and animal encroachment into the wetland. The applicant's request for a modification or waiver pursuant to FWZC 80.35 requires a Process ill review, which requires the Examiner to make a recommendation to the Federal Way City Council as opposed to a final decision. FWZC 150.10 states that if a use or activity requires approval through Process II, but is a part of a proposal that requires Process III approval then the entire proposal will be reviewed under Process III to facilitate more efficient decision-making. According to FWZC 150.10 and FWZC 155.75.4 the Examiner may recommend approval only if the decisional criteria set forth therein are met. Findings on each criteria are hereby made as follows: LITOWITZ APPLICATION UPill-91-0001; FWHE #92-11 PAGE 7 c. 1. a. The project is consistent with the City of Federal Way Comprehensive Plan. Development of the site must be in accordance with the mitigation measures required by the MDNS. These measures ensure that the development of the property is consistent with the natural environment policies of the comprehensive plan. These policies include the protection and enhancement of wetlands by meeting the goal of no net loss of wetlands (policy NE-4); the development of buffers to protect wetlands and stream corridors (policy NE-5); the requirement for environmental assessment and mitigation of potential adverse impacts to sensitive areas (policy NE-9). b. The project is consistent with all applicable provisions of the Federal Way Zoning Code. The applicant's proposal is substantially less intense than the multi-family zone classification of the property. The City's development review committee has assessed the proposal and found that it meets all applicable codes and regulations. The proposal is consistent with the public health, safety, welfare. Development of the site in accordance with the mitigating measures set forth in the MDNS and hereinafter, as well as compliance with all development codes and regulations will ensure that the public health, safety, and welfare are protected. IV. CONCLUSIONS The tributary to Hylebos Creek located on the eastern border of the applicant's property meets the definition of "major stream" as defined by Section 3.10.465 FWZC. The wetlands associated with the tributary meet the definition "regulated wetlands" set forth in Section 3.10.725 FWZC. Therefore, both the regulated wetlands and major stream require a loo-foot buffer and building setback. 2. The applicant's request for a modification and/or waiver from the 100-foot setback from both the stream and wetland is consistent with, and meets all requirements of Section 80.35.3 FWZC, Section 80.105.3 FWZC, and Section 80.160 FWZC. Therefore, the Federal Way City Council should approve modifications and waivers of setback from the Hylebos Tributary and its associated wetlands as requested, subject to the following conditions: A. Pursuant to section 20.130.30 of the Environmental Policy Ordinance, all mitigation measures of the August 7, 1992 mitigated determination of nonsignificance are incorporated by reference as conditions of this approval. Failure to comply with the mitigation measures shall constitute grounds for suspension and/or revocation of this approval. LITOWITZ APPLICATION UPill-91-OOO1; FWHE #92-11 PAGE 8 B. A Wetland Buffer for the protection and preservation of the on-site sensitive areas must be identified and recorded on the face of the revised plat as part of the proposed plat amendment. C. The application for a plat amendment, which is subject to review and approval by the City Council, must be approved by the City Council, and any and all conditions of such approval met, before any work commences or any permits are issued for the wetland mitigation project. D. Documents sufficient to establish wetland bufferlbuilding setback lines for the adjacent property shall be recorded as a condition of approval. V. RECO:MMENDATION It is hereby recommended to the City Council of the City of Federal Way that the applicant be allowed a modification and/or waiver from the 100-foot major stream and wetland setback to allow construction of single-family residences on Lots 3 and 4, King County Short Plat 5943, including parking; and a 30-foot by 250-foot private access road, subject to the conditions contained in the conclusions above. DATED THIS 10TH DAY OF DECEMBER, 1992. Æß:~f-~ VI. RIGHTS TO RECONSIDERATION AND CHALLENGE Any person who has a right to challenge a recommendation under the Federal Way Zoning Code may request the Hearing Examiner to reconsider any aspect of his or her recommendation by delivering a written request for reconsideration to the Planning Department within seven (7) calendar days after the date of issuance of the Hearing Examiner's recommendation. The person requesting the reconsideration shall specify in the request what aspect of the recommendation he or she wishes to have reconsidered and the reason for the request. The distribution of the request and the response to the request shall be governed pursuant to the provisions of the Federal Way Zoning Code. Within ten (10) working days after receiving a request for reconsideration, the Hearing Examiner shall notify the persons who have a right to appeal under the Federal Way Zoning Code, whether or not the recommendation will be reconsidered. The Hearing Examiner may reconsider the recommendation only if he or she concludes that there is substantial merit in the request. The process of the reconsideration will be followed in LITOWITZ APPLICATION UPill-91-O001; FWHE #92-11 PAGE 9 accordance with the Federal Way Zoning Code. The recommendation of the Hearing Examiner may be challenged by any person who is to receive a copy of that recommendation pursuant to FWZC 155.60.6. That challenge, in the form of a letter of challenge, must be delivered to the Planning Department within fourteen (14) calendar days after the issuance of the Hearing Examiner's recommendation 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 recommendation. The letter of challenge must contain a clear reference to the matter being challenged and a statement of the specific factual findings and conclusions of the Hearing Examiner disputed by the person fùing the challenge. The person filing the challenge shall include, with the letter of appeal, the fee established by the City. The challenge will not be accepted unless it is accompanied by the required fee. The recommendation of the Hearing Examiner may be challenged whether or not there was a request to reconsider the Hearing Examiner's recommendation.