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.