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Res 94-169 .6. .~ RESOLUTION NO. 94-169 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, APPROVING THE VARIANCE AND APPLICATION BY THE INTRAWEST CORPORATION FOR A BINDING SITE PLAN TO DIVIDE AN EXISTING LOT INTO TWO LOTS FOR FUTURE DEVELOPMENT (FEDERAL WAY FILE NO. BSP93-0002; FEDERAL WAY HEARING EXAMINER NO. 94-8). WHEREAS, the Intrawest Corporation ("Applicant") has a possessory ownership interest in property totaling approximately 5.23 acres located at 34100 9th Avenue south, within the city limits of Federal Way ("Property"); and WHEREAS, the Applicant is proposing to divide the lot through binding site plan into two lots for future development; and WHEREAS, the Application included a request for a variance to divide the one existing lot into two lots, which request requires a Process II review pursuant to FWCC Section 20-61 and 20-62(c); and WHEREAS, a State Environmental Policy Act ("SEPA") Mitigated Determination of Non-significance ("MDNS") was issued by the City of Federal Way's Responsible Official for this original Application on December 14, 1993, and the MDNS was not appealed, and this variance application is categorically exempt from SEPA review as a minor land use decision pursuant to WAC 197-11- 900(6) (b); and WHEREAS, all public notice having been duly given pursuant to FWCC section 22-480; and RES # 94-l69 , PAGE 1 COpy WHEREAS, pursuant to FWCC Section 22-438 Process II, the Federal Way Land Use Hearing Examiner held the first public hearing on the original Application on January 18, 1994; and WHEREAS, at the conclusion of said first hearing, the Federal Way Land Use Hearing Examiner issued its Findings, Conclusions, and Recommendation with Conditions on February 1, 1994; and WHEREAS, the City Council of the City of Federal Way, Washington, is the governmental body having jurisdiction and authority to pass upon the approval, denial and modification of the Application, pursuant to FWCC; and WHEREAS, the City Council on March 1,1994, by Resolution No. 94-167, previously remanded to the Hearing Examiner that portion of the Application requesting Binding site Plan Approval for the purpose of consideration and decision on the appropriateness of a variance for this Application pursuant to FWCC Section 22-196; and WHEREAS, pursuant to FWCC section 22-196, the Federal Way Land Use Hearing Examiner held a second public hearing on the variance Application on March 1, 1994; and WHEREAS, at the conclusion of the second hearing, the Federal Way Land Use Hearing Examiner issued its Findings, Conclusions and Decision with conditions on March 9, 1994; and WHEREAS, this matter having been considered at the Federal Way City Council Land Use/Transportation Committee at its meeting on March 21, 1994, for the purpose of reviewing the RES # 94-169 , PAGE 2 Examiner's Decision on the variance and recommendation on the Binding site Plan Application to the full city Council; and WHEREAS, the City Council having considered the written record, and the decision on the variance and recommendation on the Binding Site Plan Application issued by the Hearing Examiner, pursuant to FWCC section 22-490 and Section 22-196; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Hearinq Examiner's Decision. The Findings of Fact and Conclusions of Law of the Federal Way Land Use Hearing Examiner issued on March 9, 1994, following a public hearing held on March 1, 1994, a copy of which is attached hereto as Exhibit "A" and incorporated by this reference ("Decision"), which includes a decision to approve the variance are hereby adopted as the Findings of Fact and Conclusions of Law of the Federal Way City Council. Section 2. Variance Decisional Criteria. Pursuant to FWCC section 22-198 and Finding of Fact #8 of the Decision, the Federal Way City Council concludes that the variance decisional criteria have been satisfied as follows: A. The variance will not constitute a qrant of special privileqe inconsistent with the limitations upon uses of other properties in the vicinity and zone in which the subiect property is located. The site is located in an area bounded on the north by 348th Street, on the south by 336th Street, on the east by 9th Avenue South, and on the west by Pacific Highway South. within this area are 39 commercial lots which are zoned MP. Of these 39 lots, 29 are less than five acres and a number are smaller than proposed Parcel A. Of the 39 commercial lots, RES # 94-l69 , PAGE 3 many are developed with uses first permitted in the MP zone and which require a five acre lot size. Two of the small lots were developed subsequent to incorporation and the adoption of the Federal Way City Code. Most importantly, however, this site is already improved with a building housing an MP use. The location and size of the existing building under-utilizes the site. The building was constructed in 1978 when land use codes would allow the construction of a larger building or in the alternative a subdivision of the site. When the structure was built, the owners fully intended to either expand the structure or divide the site. with the adoption of the Federal Way Zoning Code in 1990, the five acre minimum lot size was imposed. The distinction between an improved site and a vacant site is important because of the decision in st. Clair v. Skaqit County, 43 Wn. App. 122 (1986). In that case the court stated that granting variances based upon the proximity of similar but nonconforming uses could prove destructive to Skagit County's zoning objectives. The court refused to allow an applicant to base a lot width variance upon an allegation that properties in the vicinity consisted of lots of less than 75 feet in width. The court stated that if an applicant were granted a variance because nearby substandard properties are developed with substantial lots, a municipality would be bereft of valid grounds upon which to deny variance applications in the future. In approving this variance the Examiner is making a strict distinction between this property which is partially developed and other vacant property located within the MP zone classification. Special privileges are not granted to this applicant because a portion of the site was developed (with further expansion and/or subdivision contemplated) prior to the adoption of the Federal Way Zoning Code. RES # 94-169 , PAGE 4 RES # B. The variance is necessarv because of special circumstances relatina to the size. shape. topoaraphy. location or surroundinas which deprive it of use riahts and privileaes permi tted to other properties in the same vicinity and zone. As previously found, the property is located in the West Campus Business Park. Developed properties in both the business park and general vicinity contain MP uses on less than five acres. This site was previously developed with the intent of future subdivision, which dictated the location of the building. To deny this variance request would prevent the applicant from enjoying the rights and privileges afforded to other property owners. Furthermore, the variance request is for a lot area variance rather than a use variance. Courts generally approve area variances upon a lesser showing of hardship or practical difficulty than is required for a use variance (Martel v. Vancouver, 35 Wn. App. 250 (1983». C. The arantina of the variance will not be materially detrimental to the public welfare or iniurious to the property or improvement in the vicinitv and zone in which the subiect property is located. The applicant has operated its business in Federal Way for the previous seven years. The company is successful and must relocate to a larger facility. The Federal Way Comprehensive Plan encourages businesses that provide employment opportunities to locate within the city. Granting the variance to allow Salmolux to operate on a smaller lot than required by the MP zone would not adversely affect the public welfare. Furthermore, Parcel A is located next to 9th Avenue and will be developed with a compatible MP use. Many commercial and manufacturing uses do not require five acres in which to meet all FWCC and SEPA requirements and still operate efficiently. 94-l69 , PAGE 5 D. The special circumstances of the parcel are not the result of the actions of the owner of the subiect property. The present owner is the Federal Bankruptcy Court which has attempted without success to market the property for over two years. In order to obtain full market value the lot must be divided. The Bankruptcy Court had nothing to do with the passage of the Federal Way Zoning Code, nor with the construction of the building on the lot in 1978. Section 3. Process II Decisional criteria. Pursuant to FWCC section 22-431, et seq., and Finding No.9 of the Decision, the Federal Application Way City Council concludes that the conforms to the Process II criteria contained in the FWCC section 22-443(c) as follows: C. RES # A. The DrODosed variance is consistent with the city of Federal Way Comprehensive Plan. The subdivision of the lot will make both parcels economically feasible for uses allowed in the MP zone. Such in turn will provide employment opportunities which is encouraged by the comprehensive plan. B. The variance is consistent with all applicable provisions of the Federal Way citv Code. includina those adopted bv reference from the Comprehensive Plan. These codes include the Federal Way Environmental Policy Code, Methods to Mitigate Development Impacts Code, Federal Way City Code, and all other applicable development codes and regulations. The proposed variance is consistent with the public health. safety. and welfare. The use of the site for a food processing plant and an unspecified MP use will not endanger the public health, safety, and welfare. The subdivision encourage light industrial type development compatible with other uses and lot sizes within the vicinity. 94-169 , PAGE 6 Section 4. Application Approval. Based upon the Federal Way city Council's Findings of Fact and Conclusions of Law as adopted by reference from the Decision of the Federal Way Land Use Hearing Examiner, the Application for Binding site Plan approval for the Intrawest Corporation, Federal Way File No. BSP 93-002, the Federal Way Hearing Examiner Report No. 94-8 is hereby approved. Section 7. Severability. 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 of this resolution. section 8. Ratification. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affirmed. section 9. Effective 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 Auril , 1994. CITY OF FEDERAL WAY ~'ê~ MAYO, Y E. GATES SWANEY, CMC RES # 94-169 , PAGE 7 APPROVED AS TO FORM: c-jJ/~/~~ CITY ATTORNEY, CAROLYN A. LAKE FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. 94-169 X:\RESO\SALMOLUX.II RES # 94-169 , PAGE 8 March 29,1994 April 5,1994 EXHIBIT A CITY OF FEDERAL WAY OFFICE OF THE HEARING EXAMINER IN THE MATTER OF: SALMOLUX PROCESS III FWHEiI: 94-8 FILE iI: UPR94-0001 I. SUMMARY OF APPLICATION The original application received by the city was to use the existing building on the subject property for a food products manufacturing use (processing precleaned salmon) and subdivide the property through a binding site plan to create two lots. On February 8, 1994, the Federal Way Hearing Examiner recommendation was heard by the City Council Land Use and Transportation Committee. During the preparation work for the Land Use and Transportation Committee meeting, city staff discovered that although there is no minimum lot size requirement to create a lot in the MP zone there is a five acre minimum requirement for a food products manufacturing use in the MP zone. Upon closer examination city staff also discovered that creating a second lot of less than five acres would severely limit the development potential under the existing Federal Way City Code (FWCC) conditions. The Land Use and Transportation Committee voted to recommend approval of the food products manufacturing application per the Hearing Examiner's recommendation with one change to the conditions at their February 8, 1994 meeting. They recommended condition "F" of the Hearing Examiner's recommendation be changed to read, "Future development plans for the subject property shall not include additional parking which utilize the existing 30 foot wide access easement for maneuvering purposes." The Committee referred the binding site plan application back to the Hearing Examiner, at the request of staff and the applicant, for consideration of a variance to allow manufacturing park uses on two lots which are less than five acres in size. The Intrawest Corporation requests a variance to permit the food products manufacturing use (Salmolux) to operate on a proposed l50,llO square foot lot (identified as Parcel B on Exhibit C to the staff report) and to permit other manufacturing park uses on the proposed 77,807 square foot lot (identified as Parcel A on Exhibit C to the staff report). Both proposed lots are less than five acres. This variance application must be approved in order for the binding site plan subdivision to be economically viable. COpy 4. Salmolux Variance March 9, 1994 Page - 2 According to the Federal Way Zoning Map, the underlying zoning classification for the site is Manufacturing Park (MP). The Comprehensive Plan Map designation is Industrial/Office Park. Variance applications require Hearing Examiner approval pursuant to FWCC Section 22-196. II. PROCEDURAL INFORMATION Hearing Date: March 1, 1994 Decision Date: March 9, 1994 At the hearing the following presented testimony and evidence: 1. Bill Kingman, Associate Planner, City of Federal Way 33530 - lst Way South, Federal Way, WA 98003 2. John Solberg, lO01 Fourth Avenue, Suite 2310, Seattle, WA 98154 3. Andy Albrecht, 3650 Bellevue, WA 98006 131st Suite Avenue S.E., 705, 4. Mark Clierhugh, 950 Pacific Avenue, Suite 1050, Tacoma, WA 98402 At the hearing the following exhibits were admitted as part of the official record of these proceedings: 1. Staff Report with all attachments. III. FINDINGS 1. The Hearing Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. 2. 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. 3. All appropriate notices were delivered in accordance with the requirements of the Federal Way Zoning Code. The variance is categorically exempt from State Environmental Policy Act (SEPA) review as a minor land use decision (WAC 197-11-900(6) (b). Also, the city issued a SEPA Mitigated Determination of Nonsignificance (MDNS) for the binding site 7. Salmolux Variance March 9, 1994 Page - 3 plan application and food products manufacturing use on December 14, 1993. The MDNS appeal period expired on January 14, 1994. No appeals were filed with the city. 5. On February 1, 1994, the Examiner submitted a recommendation to the City Council of the City of Federal Way that the applicant's request for a change of use of an existing building from government storage to food product manufacturing be approved. The Examiner also recommended that the applicant's request for a binding site plan to divide the parcel into two lots for future. development should also be approved. The entire site contains 5.2 acres and the proposed subdivision would create one parcel containing 150,ll0 square feet and a second parcel containing 77,807 square feet. 6. Subsequent to the issuance of the recommendation, Community Development staff determined that Section 22-86l of the Federal Way City Code (FWCC) requires a five acre minimum lot size for food products manufacturing facilities located within the Manufacturing Park (MP) zone classification. Staff further determined that l5 of 20 uses authorized in the MP zone as set forth in Sections 22-86l through 22-880 FWCC also require minimum five acre lot sizes. The five uses exempted from the minimum five acre lot size are public or governmental facilities and hotels. Therefore, unless a lot size variance is granted with the previously approved subdivision, neither the lot with the existing building nor the undeveloped lot can be reasonably used for MP purposes. The only alternative is to require that the applicant operate its food processing plant on the entire five acre parcel. Such is not economically feasible and would cause the applicant to locate its business elsewhere. The applicant is requesting a variance from the required five acre lot size to allow its food processing business to be located on Parcel B, the l50,110 square foot parcel with the existing building. The applicant is also requesting a variance for Parcel A which would allow any use authorized in the MP zone to locate on said parcel. While no restriction on uses are proposed, the size of Parcel A and the bulk regulations of the MP zone classification and other land use codes will limit the type and intensity of use. Furthermore, any proposed use for the site must undergo environmental review pursuant to the State Environmental Policy Act (SEPA). Therefore, while any use authorized under the MP zone may be proposed for Parcel A, environmental and code review will provide assurance that a use incompatible with existing development cannot be approved. Salmolux Variance March 9, 1994 Page - 4 8. Prior to obtaining a lot size variance the applicant must establish that the variance request meets the decisional criteria set forth in Section 22-198 FWCC. Findings on each criteria are hereby made as follows: A. The variance 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. The site is located in an area bounded on the north by 348th Street, on the south by 336th Street, on the east by 9th Avenue South, and on the west by Pacific Highway South. Within this area are 39 commercial lots which are zoned MP. Of these 39 lots, 29 are less than five acres and a number are smaller than proposed Parcel A. Of the 39 commercial lots, many are developed with uses first permitted in the MP zone and which require a five acre lot size. Two of the small lots were developed subsequent to incorporation and the adoption of the Federal Way City Code. Most importantly, however, this site is already improved with a building housing an MP use. The location and size of the existing building under-utilizes the site. The building was constructed in 1978 when land use codes would allow the construction of a larger building or in the alternative a subdivision of the site. When the structure was built, the owners fully intended to either expand the structure or divide the site. with the adoption of the Federal Way Zoning Code in 1990, the five acre minimum lot size was imposed. The distinction between an improved site and a vacant site is important because of the decision in St. Clair v. Skaqit Countv, 43 Wn. App. 122 (1986). In that case the court stated that granting variances based upon the proximity of similar but nonconforming uses could prove destructive to Skagit County's zoning objectives. The court refused to allow an applicant to base a lot width variance upon an allegation that properties in the vicinity consisted of lots of less than 75 feet in width. The court stated that if an applicant were granted a variance because nearby substandard properties are developed with substantial lots, a municipality would be bereft of valid grounds upon which to deny variance applications in the future. In approving this variance the Examiner is making a strict distinction between this property which is partially developed and other vacant property located within the MP zone classification. Special privileges are not granted to this applicant Salmolux Variance March 9, 1994 Page - 5 C. D. because a portion of the site was developed (with further expansion and/or subdivision contemplated) prior to the adoption of the Federal Way Zoning Code. B. The variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings which deprive it of use rights and privileges permitted to other properties in the same vicinity and zone. As previously found, the property is located in the West Campus Business Park. Developed properties in both the business park and general vicinity contain MP uses on less than five acres. This site was previously developed with the intent of future subdivision, which dictated the location of the building. To deny this variance request would prevent the applicant from enjoying the rights and privileges afforded to other property owners. Furthermore, the variance request is for a lot area variance rather than a use variance. Courts generally approve area variances upon a lesser showing of hardship or practical difficulty than is required for a use variance (Martel v. Vancouver, 35 Wn. App. 250 (l983». The granting of ,the variance will not be materially detrimental to the public welfare or injurious to the property or improvement in the vicinity and zone in which the s.ubject property is located. The applicant has operated its business in Federal Way for the previous seven years. The company is successful and must relocate to a larger facility. The Federal Way Comprehensive Plan encourages businesses that provide employment opportunities to locate within the city. Granting the variance to allow Salmolux to operate on a smaller lot than required by the MP zone would not adversely affect the public welfare. Furthermore, Parcel A is located next to 9th Avenue and will be developed with a compatible MP use. Many commercial and manufacturing uses do not require five acres in which to meet all FWCC and SEPA requirements and still operate efficiently. The special circumstances of the parcel are not the result of the actions of the owner of the subject property. The present owner is the Federal Bankruptcy Court which has attempted without success to market the property for over two years. In order to obtain full market value the lot must be divided. The Bankruptcy Court had nothing to do with the passage of the Federal Way Zoning Code, nor with the construction of the building on the lot in 1978. Salmolux Variance March 9, 1994 Page - 6 9. A. B. C. Variances may be approved pursuant to Process II as set forth in Section 22-43l, et sec, FWCC. Prior to granting a Process II approval, the Examiner must find that the application meets the criteria se forth in Section 22-443(C) FWCC. Findings required on each criteria are hereby made as follows: The proposed variance is consistent with the City of Federal Way Comprehensive Plan. The subdivision of the lot will make both parcels economically feasible for uses allowed in the MP zone. Such in turn will provide employment opportunities which is encouraged by the comprehensive plan. The variance is consistent with all applicable provisions of the Federal Way City Code, including those adopted by reference from the Comprehensive Plan. These codes include the Federal Way Environmental Policy Code, Methods to Mitigate Development Impacts Code, Federal Way City Code, and all other applicable development codes and regulations. The proposed variance is consistent with the public health, safety, and welfare. The use of the site for a food processing plant and an unspecified MP use will not endanger the public health, safety, and welfare. The subdivision will encourage light industrial type develppment compatible with other uses and lot sizes within the vicinity. IV. CONCLUSIONS From the foregoing findings following conclusions: 1. the Hearing Examiner makes the The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The request for lot size variances for both parcels meets the criteria set forth in Section 22-198 FWCC and Section 22- 443(C) FWCC. DECISION: The request for a variance to allow subdivision of the site into two parcels of less than five acres with authority to use Parcel B for a food processing plant, and authority to use Parcel A for any use authorized in the MP zone classification is hereby granted; provided, however, that any use proposed for Parcel A must undergo SEPA review and must comply with all requirements of the Salmolux Variance March 9, 1994 Page - 7 FWCC including those adopted by reference from the Comprehensive Plan. DATED THIS ~~ DAY OF March, 1994. 4J 'fJ? / ! ./¡'I/~ C¡{~!- STN K. CAUSSEAUX, J~. Hearing Examiner Salmolux Variance March 9, 1994 Page - 8 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 (lO) 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 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 filing 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.