Federal Way hearing examiner rules on High Point project appeals

A perspective from the back end of the 9.8 property, once a transportation center for school buses, and the proposed site for the High Point project.  - File photo
A perspective from the back end of the 9.8 property, once a transportation center for school buses, and the proposed site for the High Point project.
— image credit: File photo

After one year of controversy, a public meeting, two project appeals, one Hearing Examiner hearing, 18 days of deliberation and one decision, it appears the 308 apartment units that make up the proposed High Point mixed-use project will eventually become a reality.

On Aug. 15, Phil Olbrechts, the city of Federal Way’s Hearing Examiner, issued a 19-page decision on two High Point project appeals that were heard together on July 28. Olbrechts ruled the initial approval of the mitigated determination of non-significance and Process III permit were sustained but with three modifications.

Developer Jack Hunden of DevCo, Inc. is now required to keep several tall laurel trees on the northern side of his property where single family homes abut his property line. He’s also required to prepare a dust control plan that ensures the contaminated dust will not affect the neighboring properties during clean up of the contaminated site. Before he can obtain his grading permit, he must follow the recommendations of a third party report, which includes investigating the southwest corner of the site for contamination, prior to receiving a grading permit.

Hunden declined to speak with the Mirror about the High Point project until mid-September.

More than 80 Federal Way residents opposed the 15-building apartment complex proposal that will cater to low-income tenants because of its close proximity to their neighborhood and its large scale.

The developer proposes the buildings range from three to six stories, which is within zoning code but contrasts with single family homes that abut the north side of the 9.8 acre property, residents say. The project will also include 27,337 square feet of commercial and amenity space with 517 parking spots. The property is currently owned by Federal Way Public Schools and was once a transportation center for school buses.

Federal Way resident Leah Boehm-Brady filed an appeal on May 1 on the city’s environmental threshold determination and an appeal on June 19 on the land-use decision for the High Point project.

Ultimately, appellants wanted the Department of Ecology to take the lead on the cleanup action plan so that they could include a public participation plan. Many worried the current plan failed to identify all of the contaminants, which include benzene, toulene, ethyl benzene and xylene and that the developer has too much self-interest to objectively do its own cleanup plan.

Because the appellants’ expert witness Greg Wingard was unable to attend the hearing, his testimony was thrown out and deemed hearsay. Wingard works with King County Councilman Larry Phillips and alleged the contamination is likely worse than the initial data.

However, Olbrechts said “the appellants do raise a troubling issue regarding the potential for undiscovered contaminants located below impervious surfaces.”

“When the examiner asked the applicant’s expert Thomas Morin about this issue, he simply responded that it was very unlikely that any additional contaminants would be discovered,” the decision states. “This is not very reassuring testimony.”

Because of this, the hearing examiner ruled the city’s third party reviewer Jon Sondergaard’s recommendation report should be added as an additional SEPA (State Environmental Policy Act) mitigated measure.

Additionally, it was ruled the Department of Ecology’s oversight would be no more intense than a third party reviewer and requesting a public participation plan was outside of the SEPA appeal’s criteria.

“The only thing I can be pleased with is that we were able to save part of the hedge, part of the buffer,” said Boehm-Brady.

Olbrechts ruled in favor of the 50-plus appellants in their assertion that the developer keep the trees between the proposed project and the neighborhood to the north as a way to retain some privacy.

The hearing examiner described this as the most “significant and complicated issue” of the application because the city has detailed tree retention and landscaping requirements.

The developer was originally allowed to remove trees on the property as long as he replanted some along the property line.

“Given the city’s Comprehensive Plan policies that strongly encourage the protection of the city’s neighborhoods, it is reasonable to conclude that the City Council did not intend its regulations to preclude a vegetative buffer retention requirement,” the decision states. “… Planting new 16-25 foot trees cannot be reasonably required of an applicant. Retaining existing trees of that height, however, is eminently reasonable. The conditions of approval require retention of the laurel trees within the 11.25 to 15 foot buffers located along the northern property line.”

Boehm-Brady said many of her neighbors whose houses abut the property are pleased.

“The people who back up to it are very grateful for the little bit that they’ll have,” she said. “Their property values would have been stripped.”

The arborist’s report indicated 23 trees behind the neighbor’s property were either dead, dying or in poor condition and needed to be removed for safety reasons. However, the report didn’t state why those specific trees were selected for testing or if others were also involved in the evaluation.

The appellants also had a bonsai artist inspect a portion of the vegetative buffer, who found the cherry laurels to be healthy.

“The arborist’s comments about the laurel plants creating an ‘impenetrable’ visual barrier with the majority of the plants being 16-25 feet tall, establishes the significance of these laurel plants as a visual buffer to the applicant’s multistory buildings to the south,” the decision states.

But several of the appellants’ assertions were brushed aside.

The residents want the proposed pedestrian access point closed off because they say it will encourage foot traffic through the neighborhood and detract from their neighborhood character.

While Olbrechts saw some merit in that claim, he said the connection would facilitate a safer walking route for children to and from school.

“On balance, the safety benefits of the required connection outweigh the minor adverse impacts associated with the proposal and the condition to require the connection will be kept in place,” the decision stated.

Several appellants testified on the overall scale of the project, stating that the bulk and scale of the buildings is not compatible with their neighborhood and the roads could not serve the drivers, pedestrians and tenants expected to arrive once it’s finished.

Nevertheless, the city zoned this property for this type of use before the developer proposed the project.

Once the City Council enacts those policy choices into law, state law is clear that those choices cannot be revisited during permit review, Olbrechts noted.

“This was never the intent of the city of Federal Way to demolish this neighborhood, which is what this development will do,” Boehm-Brady said. “I thought when I moved here it seemed to me it had great zoning and attractive areas … I hate to be so negative but we did a lot of work. We really tried.”

Another significant area of concern was whether there would be enough parking for those who live at the apartments and frequent the businesses proposed for the ground floor.

The previous director of the Community Development department authorized a reduction from 586 parking stalls to 517 after the developer asked for 503.

The developer prepared a parking study showing the parking demand created by nine multi-family sites in King County and Snohomish County.

“The average parking demand established from both the [Institute of Transportation Engineers] and the comparable parking site study was well below the 503 parking stalls proposed by the applicant,” the decision states. “However, the city rejected the applicants reliance upon average numbers and insisted required parking demand be based upon the much more conservative 85th percentile of parking demand.”

Residents still fear that with the open pedestrian access to their neighborhood, apartment tenants will park along the neighborhood streets and simply walk over if they can’t find parking.

Boehm-Brady said it’s unlikely she and her fellow appellants will appeal the hearing examiner’s decision because the City Council ruled earlier this year that such appeals are to be heard in Superior Court instead of with the Council and they can’t afford it.

“If the deck wasn’t stacked against us then we would appeal the decision,” she said. “… It feels like they threw a dog a bone. They threw us a tiny little bone that’s already chewed up.”

Chief of Staff Brian Wilson said the reason the City Council did this is because it prevented Council members from taking a position, talking to residents and having input on issues such as this.

Wilson said if an appeal to a hearing examiner’s decision goes directly to Superior Court, it frees up the Council so that they don’t have a quasi-judicial role.

“There’s certainly a lot of emotion with neighbors pertaining to this project and how it moves forward but there’s also a group of people within the city that think this is a good project,” Wilson said. “It fits the Comprehensive Plan, it’s an enhancement and improvement in the area than what’s currently there.”

The next steps for the developer, if there are no further appeals, will be to submit the engineering report and the terms of the cleanup plan, which is anticipated to be complete in the coming months.

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