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.