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Res 95-215 RESOLUTION NO. 95-2l5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, APPROVING WITH' CONDITIONS THE APPLICATION FOR APPROVAL FOR THE S. 336th STREET REGIONAL SURFACE WATER STORAGE AND CONVEYANCE FACILITY, FEDERAL WAY FILE NO. UPR94-0025. WHEREAS, the applicant, the city of Federal Way, applied to the City of Federal Way for approval of a project to construct a regional surface water storage and conveyance facility in the vicinity of Pacific Highway South and South 336th Street ("Application"); and WHEREAS, pursuant to Federal Way City Code ("FWCC") section 22-476 et seq. , the Application requires Process III review; and WHEREAS, a determination of non-significance (IIDNS") was issued for this proposal on April 11, 1995, pursuant to the FWCC and the State Environmental Policy Act ("SEPA"), and the DNS was not appealed; and WHEREAS, FWCC section 22-490(d) contains certain criteria for the consideration of a Process III application; and WHEREAS, all public notice having duly been given pursuant to FWCC section 22-480; and WHEREAS, the Federal Way Land Use Hearing Examiner held a public hearing on July 25, 1995, concerning the Application; and RES # 95-215 - PAGE 1 COpy 't, WHEREAS, at the conclusion of said hearing the Federal Way Land Use Hearing Examiner issued its Findings, Conclusions, Conditions, and Recommendations on August 9, 1995; and WHEREAS, the City council of the City of Federal Way is the governmental body now having jurisdiction and authority to pass upon the approval, denial or modification of the conditions of said Application pursuant to FWCC section 22-490; and WHEREAS, this matter having been considered by the Federal Way City council Land Use/Transportation Committee at its meeting on August 28, 1995, for the purpose of issuing its recommendation for conditional approval of the Application to the full city council; and WHEREAS, the City Council having considered the written record and the Findings, Conclusions and Recommendation of the Hearing Examiner, pursuant to Chapter 22 of the FWCC and all other applicable City Codes; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: section 1. Findinqs of Facts. Conditions and Conclusions. The Findings, Conclusions, Conditions and Recommendations of the Federal Way Land Use Hearing Examiner issued on August 9, 1995, following a hearing held on July 25, 1995, which included a recommendation to approve the City of Federal Way's application to construct a regional surface water storage and conveyance facility subject to certain conditions, are hereby RES # 95-2l5 - PAGE 2 iih adopted as the Findings, Conclusions and Conditions of the City Council. section 2. Application Approval. Based upon the Findings, Conclusions, Conditions and Recommendations of the Federal Way Land Use Hearing Examiner, as adopted by reference by the city Council set forth hereinabove, the application of the City of Federal Way to construct a regional surface water storage and conveyance facility, Federal Way File No. UPR94-0025, is hereby approved subject to the conditions contained in the Recommendation of the Federal Way Land Use Hearing Examiner Report for this matter dated August 9,1995, attached hereto as Exhibit A and incorporated by this reference. section 3. Conditions of Approval Inteqral. The conditions of approval of the preliminary plat are all integral to each other with respect to the City Council finding that public use and interest will be served by the construction of the regional surface water storage and conveyance facility. Should any court having jurisdiction over the subject matter declare any of the conditions invalid, then, in said event, the approval granted in this resolution shall be deemed void, and the 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 Application makes appropriate provisions for the public health, safety and general welfare and other factors as required by applicable County and/or City ordinances, rules and RES # 95-2l5 - PAGE 3 regulations and forward such recommendation to the City Council for further action. section 4. Severabilitv. 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 5. Ratification. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affirmed. section 6. 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 20th DAY OF September , 1995. CITY OF FEDERAL WAY ~~ p &Xoo MÀY , RY E. GATES APPROVED AS TO FORM: / V K. LINDELL RES # 95-2l5 - PAGE 4 FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. K:\RESO\S336TH RES # 95-2l5 - PAGE 5 09-l2-95 09-20-95 95-215 CITY OF FEDERAL WAY OFFICE OF THE HEARING EXAMINER IN THE MATTER OF: KITTS CORNER AND S. 336TH ST. PROCESS I, II, AND III FWHE#: 95-10 UPR94-0025, SPR94-0031, SEP94-0036 I. SUMMARY OF APPLICATION The proposal is to construct regional surface water conveyances and detention facilities and conduct wetland/stream restoration. II. PROCEDURAL INFORMATION Hearing Date: Decision Date: July 25, 1995 August 9, 1995 At the hearing the following presented testimony and evidence: I. Greg Fewins, City of Federal Way, Senior Environmental Planner 2. Craig Ward, Berger & ABAM Engineering 3. Marivan Salloum, Project Engineer 4. Luie Lu At the hearing the following exhibits were admitted as part of the official record of these proceedings: I. Staff Report with all attachments. III. FINDINGS I. The Hearing Examiner has heard testimony, admitted docwnentary 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 I and incorporated in this report by reference as though set forth in full herein. 7. KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 2 3. All appropriate notices were delivered in accordance with the requirements, of the Federal Way Zoning Code. 4. The applicant, City of Federal Way, is requesting Process I, Process I, and Process III review of the Kitts Corner and South 336th Street regional stormwater detention and wetland/stream restoration project. The project site is located within the vicinity of the intersection of S. 336th St. and SR-99. The project commences immediately north of S. 336th St., extends south for approximately two blocks, turns west and crosses beneath SR- 99, and then turns south to approximately S. 344th St. The project elements which require review include overall site plan review; wetland intrusion; wetland setback intrusion; stream setback intrusion; stream culvert; stream relocation; bulkhead; and intrusion into a geologically hazardous area. 5. A complete explanation of the project is found on pages 1-6 of the Department of Community Development Staff Report which is incorporated herein by this reference as if set forth in full. Briefly, the project is designed to intercept stream channel flow north of S. 336th St. and convey said flow into Wetland 9b which is north of S. 336th St. Flows will be then directed under S. 3361h St. into Wetland 9a by two, 42 inch culverts. The existing stormwater detention storage within Wetlands 9a and 9b will be increased from 16 to 27 acre feet by construction of a detention containment embankment along the west and south sides of Wetland 9a. The boundaries of Wetland 9a are not being expanded and therefore no additional wetland buffering is required for properties adjacent to said wetland. From Wetland 9a water is conveyed beneath SR-99 through a 48 inch trunk storm drain (which replaces a 24 inch pipeline). West of SR-99 the existing steep and degraded stream channel will be replaced by a 54 inch storm. drain extending approximately 650 feet to the west to an energy dissipator. The water will then flow through a restored stream channel approximately 100 feet into Wetland 2. From there water will be discharged to a restored wetland/stream corridor which flows to Wetland 2a. Total active detention volume provided by Wetland 2a will be approximately 34 acre feet with an additional four acre feet of dead storage. Wetlands 3 and 4 are located to the east of Wetland 2 and are not proposed for filling as part of this project. However, it is anticipated that filling may be requested by private property owners at the time of development. This project includes mitigation for the filling of Wetlands 3 and 4. 6. The City has properly elected to evaluate the entire project as a whole as opposed to each specific aspect of the project. Were the City to have evaluated each specific aspect, more than 100 decisional criteria would have been evaluated. The Examiner has also evaluated the project as a whole. Significant studies of the area provide the basis for staffs recommendation of approval of all aspects of the project. The surface water/ground water was analyzed in a wetlands KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 3 8. 9. D. E. 10. assessment prepared by Sheldon and Associates; an alternative stream restoration concepts study prepared by CH2M Hill; and a wetland stream wetland impact analysis and mitigation plan also prepared by CH2M Hill. The surface geology/topography was evaluated in a geotechnical data report prepared by CH2M Hill. A vegetation survey and geologically hazardous area identification study was also prepared by CH2M Hill. Vegetation throughout the project was evaluated and a vegetation survey and geologically hazardous area identification study was prepared by CH2M Hill for the entire project area. Animal habitat was evaluated by using a previous study prepared by Shapiro and Associations in 1991. The wetland assessment prepared by Sheldon and Associates evaluated habitat in the wetland and buffer areas. The project is subject to site plan review pursuant to Section 22-361 of the F-ederal Way City Code (FWCC); Process I review pursuant to Section 22-386 et seq FWCC; Process 11 review pursuant to Section 22-431 et seq FWCC; and Process III review in accordance with Section 22-476 et seq FWCc. The criteria for site plan review are found at Section 22-364 FWCC. Findings on each criteria are hereby made as follows: A. The proposal has been reviewed for compliance with the criteria for site plan review and all applicable regulations and laws as detailed in the staff report. B. The proposal has been coordinated with known and anticipated development on private properties as well as for public improvement projects. Adjacent and anticipated owners of privale properties on which improvements will be constructed, and abutting property owners have been consulted. Wetland mitigation plans incorporate the elimination of wetlands three and four, and the Washington State Department of Transportation has been consulted regarding impacts to SR- 99. C. The proposed development is compatible with abutting uses, is designed to be aesthetically pleasing, and will encourage development of abutting properties. The project is also consistent with the City's goals of protection and enhancement of environmentally sensitive areas. The proposed development was designed based upon the utility infrastructure and constraints. Access to the impacted property will utilize existing utility easements. The criteria for Process I review (Section 22-394(b) FWCC); for Process II review KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 4 II. 12. C. (Section 22-443(c) FWCC); and for Process III review (Section 22-490(d) FWCC) are identical. Findings on the criteria for Process I, II, and III are jointly made as follows: A. The proposal is consistent with the City of Federal Way Comprehensive Plan which designates the site as Business and Industrial/Office Park. The Cily has reviewed the project for conformance with all land use, circulation, and natural environmental policy elements of the comprehensive plan and found it in conformance. B. The project is consistent with applicable provisions of the Federal Way City Code to include those adopted by reference by the comprehensive plan and the zoning code. Zone classifications include RS-7.2 (Single Family Residential with a minimwn lot size of 7,200 square feet), MP (Manufacturing Park), and BC (Business/Commercial). The project must comply with all requirements of the zoning regulations, the environment policy code, and all other development codes and regulations. The project is a public utility and is allowed pursuant to site plan review and Process III approval within the RS zone; site plan review within the MP zone; and outright within the BC zone. The proposed drainage improvements implement the 1991 Draft Hylebos Creek, and Lower Puget Sound Basin Plan; and thus furthers the public health, safety, and welfare. Approval will serve to protect abutting properties from flooding hazards, protect and enhance environmentally sensitive areas, prevent traffic disruptions due to flooding, and permit development of adjacent properties presently impacted by jurisdictional wetlands. The site contains geologically hazardous areas as defined by Section 22-1 FWCC. These hazards include landslide and steep slope areas associated with rapidly eroding stream channels. In accordance with Section 22-1286(b) FWCC, development activities may not occur on or within 25 feet of a geologically hazardous area unless no reasonable alternative exists, and then only if the proposed activity does not lead to or create any increased slide, seismic, or erosion hazard. Alternatives to the Kitts Corner project were considered in the 1991 Draft Hylebos Creek and Lower Puget Sound Basin Plan. Geologically hazardous areas were identified by CH2M Hill in its March 17, 1995, memorandwn. CH2M Hill's recommendations have been incorporated into the design of the proposed development which eliminate the existing geological hazards associated with the rapidly eroding stream channels. Use of a drainage blanket at selected locations will minimize the potential creation of landslide hazards. Section 22-1306 FWCC prohibits land surface modifications or improvements within 100 feet of a major stream and 50 feet of a minor stream. However, Section 22-1312 FWCC KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 5 13. A. B. C. D. 14. allows the Director of Community Development to permit the placement of essential public facilities or utilities in a setback from a stream if it is determined that no feasible alternative locations exist. The specific location and extent of the intrusion into the setback must be the minimum necessary to meet the requirements of the public tàcility or utility. Portions of the drainage improvements will occur within stream setback areas, but will be consistent with the criteria for minor improvements and intrusions set forth in Section 22-1312(b)(c)FWCC. The proposed development is an essential public utility and the specific location and extent of the intrusion is the minimum necessary to allow the project to proceed. The stream channel connecting Wetland 2 to the project outfall at Wetland 2A is being relocated to change the channel gradient, enhance the habitat characteristics for fisheries, reduce stream bank erosion, and reduce downstream sedimentation and turbidity. Section 22"1307 FWCC allows the Hearing Examiner to recommend approval of stream relocation if the applicant can establish that the decisional criteria set forth in subsections Co D, E, and F are met. Findings on each criteria are hereby made as follows: An impact analysis and mitigation plan was prepared by CH2M Hill which includes the design necessary to create the natural stream meander pattern; the formation of gentle side slopes; the installation of erosion control features; the creation of a narrow subchannel where feasible along the west bank; utilization of natural materials whereever possible; utilization of native, riparian, vegetation; the creation of spawning and nesting areas; the reestablishment of fish populations wherever feasible; the restoration of water flow characteristics compatible wi th fish habitat areas; and the filling and revegetating of the prior stream channel. The design also includes installation of a culvert to provide for future fish passage from the existing stream to Wetland 2a. The project will significantly improve water quality, will improve habitat and storm water retention by regulating flood waters, will reduce stream bank erosion and sedimentation, and will improve the wildlife and fisheries habitat. The City will secure a qualified professional to inspect the stream channel following its completion and ensure that the channel complies with the requirements of the FWCC. The mean annual flow and average velocity of the stream will not be increased or decreased for the portion of the stream being relocated. A bulkhead is proposed on the headwall north of S. 336 St. to prevent stream bank erosion. Section 22-1308(c)(d) FWCC authorizes the Examiner to recommend approval KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 6 of a bulkhead if it satisfies the criteria set forth therein. Findings on each critcria are hereby made as follows: A. 15. 16. A. The headwall is experiencing stream erosion due to the high velocity flow of flood waters entering the culvert at S. 336th St. A bulkhead is needed 10 prevent continued significant erosion. Vegetation alone will not sufficiently stabilize the bank to prevent erosion due to the high flow rates. B. The bulkhead (or headwall) has been designed to minimize the transmittal of water current to other properties. Changes to the vertical configuration are necessary to accomplish the purpose of flood control, and no horizontal configuration changes are proposed. The applicant is proposing culverts under roads and within the drainage channel connecting Wetland 9a and Wetland 2. Culverts are pennitted in streams only if the criteria set forth in Section 22-1309 FWCC are satisfied. Findings on each critcria are hereby made as follows: A. CH2M Hill studied allernatives to culverting the stream between Wetbnd 9a and Wetland 2. Any alternative to culverting would necessitate the removal of significant trees which would destroy existing habitat. The proposed culvert would have the least impact on habitat areas and would enhance dc\'clopment potential of abutting properties. No significant habitats are associated with the present drainage channel which is creating a severe erosion problem. B. No fish currently inhabit the stream segment, nor are fish anticipated to inhabit the area above Wetland 2. The applicant has provided alternative plans showing that no other reasonable site design exists which would allow the passage of fish above Wetland 2. C. The maintenance of the culverts and the balance of the project is the responsibility of the City, and thus not subject to the standard bonding requiremenls, Routine maintenance will be performed by the City's Surface Water Division, Section 22-1313 FWCC sets forth three additional requirements for land surface modifications within a stream or stream setback area. Findings on each criteria arc hereby made as follows: Excavated organic materials will be mixed with fill material and used on-site for vegetation management purposes. Fill materials will not contain organic or inorganic material detrimental to water quality or habitat. KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 7 17. D. E. F. G. H. I. B. No dredging is proposed. C. The wetland mitigation plan includes a planting plan to stabilize all areas left exposed with native vegetation normally associated with the stream or selback areas. Portions of the project require land surface modifications and improvemenls within regulated wetlands. Section 22-l358(d) FWCC authorizes the Examiner to recommend approval of activities within wetlands to the City Council if the criteria set forth in said section are met. Findings on each criteria are hereby made as follows: A. The proposal will improve water quality within the wetlands by reduC-ing erosion of stream banks and sedimentation. B. The proposed development will improve habitat areas by improving water quality; and enhancing the size, function, and value of the existing wetlands. Restoration and replacement of habitat areas destroyed are consistent with the criteria of the FWCC. C. The proposed development will improve drainage and storm water detention capabilities. The proposed development will eliminate erosion hazards and reduce existing unstable earth conditions. The proposed development will enhance other properties in the immediate area and the City as a whole. No open spaces or scenic vistas are lost. The proposal will result in an increase in wetland function and value. As previously found, the project is in the best interest of the public heallh. safety, and welfare. Approval will protect adjacent properties from flooding hazards, protect and enhance sensitive areas, prevent traffic disruptions due to flooding across 8. 336th 8t. and SR-99, and pennit development of adjacent properties. The City has sufficient scientific expertise and supervisory capability to successfully complete the project. The City will monitor the project and make corrections if the project fails to meet projected goals. KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 8 18. The project requires improvements and land surface modifications within selback areas ITom regulated wellands. Section 22-1359(b) FWCC authorizes the Examiner to recommend approval of the such activities to the City Council if no feasible alternatives exist. As previously found, alternatives to this proposal were considered in the 1991 Draft Hylebos Creek and Lower Puget Sound Basin Plan. Furthennore, a wetland/stream impact analysis and mitigation plan was prepared by CH2M Hill. These analyses establish that no feasible alternative exits, and that the intrusion into the setback constitulcs the minimum necessary to meet project requirements. IV. CONCLUSIONS From the foregoing findings the Hearing Examiner makes the following conclusions: 2. 3. 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. The proposed Kitts Corner and S. 336th St. Regional Storm Water Detenlion and Wetland/Stream Resloration project is consistent with the Federal Way Comprehensive Plan, the Federal Way City Code, and meets all criteria for site plan review and Process I, 11, and III review. The project meets all requirements for development within sensitive areas and for stream relocation as set forth in the Ündings above. Therefore, the proposed project should be approved by the Federal Way City Council subject to the following conditions: A. A maintenance plan shall be submitted by the City's Surface Water Division at the time of final site design which provides a list of activities and schedule for maintaining the effective operation of the project as approved. B. Prior to starting construction, the Surface Water Division of the City of Federal Way shall pay for the services of a qualified professional selected and rclained by the Department of Community Development Services to review plans, inspect, and issue written reports to the Director of Community Development spccific to protection of sensitive areas stating that the project complies with the requirements of sections 22-364, 22-394(b), 22-443(c), 22-490(d), 22-1286(b), 22-1306(a), 22- B07(c,d,e & f), 22-1308(c & d), 22-1309 (c, d &e), 22-1312(a), 22-1313, 22- 1358( d) and 22-1359(b) of the FWZC. KITTS CORNER AND S. 336TH ST. AUGUST 8, 1995 PAGE 9 RECOMMENDATION: It is hereby recommended to the Federal Way City Council th~t the Kitts Corner and S. 336th St. Regional Storm Water Detention and wetland/stream restoration project be approved subject to the conditions contained in the conclusions above. DATED THIS ~A Y OF August, ~ Ø!~ l/. RIGHTS TO RECONSIDERATION AND CHALLENGE THE BELOW STATED RIGHTS TO RECONSIDERATION AND APPEAL AND DESIGNED TO PROVIDE NOTICE OF TIME LIMITS AND A GENERAL °YTLINE OF PROCEDURES. THE SPECIFIC REQUIREMENTS FOR REQUEST FOR RECONSIDERATION ARE FOUND IN SECTION 22-488 OF THE FEDERAL WAY CITY CODE. THE SPECIFIC REQUIREMENTS FOR CHALLENGES TO THE HEARING EXAMINER'S RECOMMENDATION ARE FOUND IN SECTION 22-489 OF THE FEDERAL WAY CITY CODE. CLARIFICATION OF THE RIGHTS TO RECONSIDERATION AND CHALLENGE AND THE NAMES AND ADDRESSES OF PERSONS WHO HAVE A RIGHT TO CHALLENGE MAY BE OBTAINED FROM THE CITY CLERK OF THE CITY OF FEDERAL WAY. RECONSIDERATION Any person who has a right to challenge a recommendation of the Hearing Examiner under the Federal Way City Code may request the Hearing Examiner to reconsider any aspect of his or her recommendation by delivering a written request for reconsideration to the Department of Community Development within seven (7) calendar days after the date of issuance of the Hearing Examiner's 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 person requesting the reconsideration shall within seven (7) calendar days following issuance of the recommendation, mail or personally deliver a copy of the request for reconsideration along with a notice of the right to file a written response to the request to those persons who have a right to challenge under Federal Way City Code. Proof of such mailing or personal delivery shall be made by an affidavit attached to the request for reconsideration at the time of delivering the request to the Department of Community Development. The notice shall state that such response must be received by the Department of Community Development within seven (7) calendar days following the filing of the request with the department. Any person filing a response to a response to the reconsideration request must distribute that response by mail or personal delivery to those persons having a right to challenge under the Federal Way City Code. Proof of such distribution by mail or personal delivery shall be made by affidavit attached to the response delivered to the Department of Community Development. Within ten (10) working days after expiration of the reconsideration period, the Hearing Examiner shall notify the persons who have a right to chállenge 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 reconsideration will be in accordance with Section 22- 488 of the Federal Way City Code. CHALLENGE The recommendation of the Hearing Examiner may be challenged by any person who is to receive a copy of that recommendation. The challenge, in the form of a letter of challenge, must be delivered to the Department of Community Development 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 (l4) calendar days of either the recommendation 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 challenge, the fee established by the City. The challenge will not be accepted unless it is accompanied by the required fee. The person challenging the recommendation shall within said fourteen (14) calendar day period mail or personally deliver a copy of the letter of challenge along with a notice of the right to file a written response to the challenge to those persons who have the right to file a challenge under Section 22-489 of the Federal Way City Code. The notice shall state that such response must be received by the Department of Community Development within five (5) working days following the filing of the written challenge with the department. Any person filing a response to the reconsideration request must distribute that response by mail or personal delivery to those persons having a right to challenge under Section 22-489 of the Federal Way City Code. Proof of such distribution by mail or personal delivery shall be made by affidavit attached to the response delivered to the Department of Community Development. The recommendation of the Hearing Examiner may be challenged whether or not there was a request to reconsider th-e Hearing Examiner's recommendation. Any challenge of the Hearing Examiner's recommendation will be heard by the Federal Way City Council.