Superior Court appeal success for SWC on critical legal issue 

A King County Superior Court judge has upheld conditions imposed for Warehouse A by the City of Federal Way’s Hearing Examiner. In his June 10, 2020, ruling, Judge Michel Ryan dismissed IRG’s appeal, decidedly rejecting the company’s contention that its projects are entirely exempt from cumulative effects review if they are not legally “interdependent.”

As a result of Judge Ryan’s ruling, the City of Federal Way must consider cumulative impacts of IRG’s three proposed warehouse developments (five warehouses total) on the historic Weyerhaeuser corporate campus in making its decisions on any one of them.

“This is a major victory for Save Weyerhaeuser Campus (SWC) supporters and the Federal Way community and it will positively affect all of IRG’s proposed development on this iconic property,” said SWC President Lori Sechrist.

“For nearly four years, we’ve fought for responsible development,” Sechrist said. “It is immensely gratifying to have the Superior Court agree that the entirety of traffic and environmental impacts must be considered and mitigated as appropriate.”

Although Judge Ryan dismissed both IRG’s and SWC’s appeals, he upheld the following critical conditions, challenged by IRG, that SWC won in 2019 as a result of appealing the City of Federal Way’s land-use decision for Warehouse A:

  • The city must consider the cumulative effects of all three projects. Certain cumulative impacts on traffic, at the Weyerhaeuser Way/Highway 18 interchange, were significant and not adequately mitigated. A cumulative traffic analysis and determination of mitigation must be done, in cooperation with the Washington State Department of Transportation (WSDOT), which has jurisdiction over the interchange.
  • The city failed to consider and must comply with the requirements of The Executive Proposed Basin Plan Hylebos Creek & Lower Puget Sound, King County Surface Water Management, July 1991 (Hylebos Basin Plan), which includes important protections for water quality, wetlands, and salmon habitat.

What’s next?

  • Before Warehouse A can move ahead, it must obtain a permit from the U.S. Army Corps of Engineers, which will include a review of impacts to the historic resources of the campus. The Corps is in the process of reviewing the permit application; the historic review is expected to take at least a year once it has begun. There are also new appeal opportunities when the city considers issuing the building permit.
  • IRG’s proposed Warehouse B, which would adjoin Warehouse A, will be subject to similar and potentially additional requirements, based on differences from Warehouse A, new circumstances or further evidence.
  • The Greenline Business Park, a three-warehouse project on the north end of the campus, is expected to face tougher scrutiny regarding visual impacts to the historic corporate headquarters building and its greater impacts on wetlands and water quality.

Your continued support is needed. Save Weyerhaeuser Campus is continuing its fight for responsible development on the iconic property and conservation of the campus’ North Lake shoreline. We are staying connected with other stakeholders and working with the City of Federal Way, the Washington State Department of Transportation and the U.S. Army Corps of Engineers to ensure IRG projects meet all conditions required.

Read the full ruling here.

 


Awaiting judge's decision after April 24 superior court hearing

Save Weyerhaeuser Campus attorney Rick Aramburu gave a strong presentation of SWC's arguments in the Warehouse A appeal during an April 24 videoconference hearing before Judge Michael K. Ryan in King County Superior Court.

During the hearing, which lasted 3-1/2-hours, Judge Ryan seemed to be well-versed in the complexities of the issues at hand, and asked a lot of questions of the parties involved -- SWC, Industrial Realty Group and the City of Federal Way.
SWC focused on what the high standards in Federal Way’s comprehensive plan mean for any development of the campus in terms of quality, design and function. Discussion also centered on the issue of assessing and mitigating the cumulative effects of all five warehouses proposed by IRG, not just Warehouse A. These include traffic, stormwater, application of the Hylebos Basin Plan, and historical significance.

On May 1, the three parties submitted proposed orders for Judge Ryan to consider. His decision could come as soon as two or three weeks after that.


Legal briefs filed for April 24 Warehouse A hearing in King County Superior Court

A hearing via Skype in SWC's appeal of the Warehouse A decision has been set for April 24 before Judge Michael K. Ryan in King County Superior Court.

Save Weyerhaeuser Campus has filed a Land Use Petition Act (LUPA) action in King County Superior Court (see legal briefs below). The legal action seeks to have the Warehouse A decision of the Federal Way Hearing Examiner sent back to the city for further study and mitigation of the traffic, environmental and other harm that will be caused by the cumulative impacts of five massive warehouses proposed by Industrial Realty Group, the current owner of the campus.

IRG has filed its own appeal of the Hearing Examiner decision, seeking to overturn the portion of the examiner's ruling last fall that says cumulative impacts of the developments must be considered, even though IRG has divided its development plan into three pieces.

The City of Federal Way, named as a party in IRG's appeal, has filed its own brief.

Read the arguments filed by Save Weyerhaeuser Campus, Industrial Realty Group (Federal Way Campus) and the City of Federal Way:

Save Weyerhaeuser Campus legal briefs:

Opening brief, 3-16-2020, plus Appendix A, Appendix B-1 and Appendix B-2

Reply brief, 4-16-2020

 

Industrial Realty Group legal briefs:

Opening brief, 3-16-2020

Reply brief, 4-16-2020

 

City of Federal Way legal brief:

City of Federal Way brief, 4-07-2020

 

For more on the Warehouse A legal filings, click here. For background on the city's approval of Warehouse A, click here.

 

You can support Save Weyerhaeuser Campus' legal advocacy with a donation of any amount

Save Weyerhaeuser Campus is a 501(c)(3) organization: EIN 81-3674786


 

 

Error in Warehouse A decision = more traffic study required

Also: SWC files Superior Court appeal (updated 11-24)

An error of fact in the Warehouse A appeal decision means additional study of cumulative traffic impacts to the Weyerhaeuser Way/westbound Highway 18 intersection is required before Industrial Realty Group can build Warehouse A, Hearing Examiner Phil Olbrechts said in an Oct. 29 ruling.

The latest decision came after Save Weyerhaeuser Campus filed a motion for reconsideration of Olbrechts’ ruling on the Warehouse A appeal. In its appeal, SWC argued that the project’s environmental, transportation and historic impacts were not properly mitigated.

SWC applauds the new traffic condition — SWC supporters and others around the region have long been concerned about the traffic volumes that would result from construction of IRG’s five proposed warehouses on the historic Weyerhaeuser campus.

However, SWC is concerned about the hearing examiner’s decision allowing the city staff to approve traffic and stormwater mitigation measures without input from community members, state and county agencies, tribes and other interested parties.

“Delegating sole power to the city to review the Hylebos Basin Plan and the traffic level of service failure is concerning — especially when the city failed to address these issues before they issued a SEPA/land use determination,” said Lori Sechrist, SWC president.

Olbrechts noted that the state’s Land Use Petition Act (LUPA) gives the courts the opportunity to re-open the administrative record of the appeal to consider whether the decision-making by the city was proper.

On Sept. 18, 2019, SWC filed a LUPA action in King County Superior Court for judicial review of the Warehouse A appeal decision. IRG filed its own LUPA challenge on the same day. Read more.

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SWC files motion for reconsideration

Seeks ability for public and agencies to review and comment on traffic, stormwater conditions imposed by the hearing examiner

On Sept. 27, Save Weyerhaeuser Campus filed a motion for reconsideration of the hearing examiner’s Sept. 12 decision on the Warehouse A project, in the areas of traffic and compliance with the Hylebos Basin Plan.

In our motion, SWC argues that Hearing Examiner Phil Olbrechts’ decision adds new conditions to the Warehouse A environmental approval for traffic and stormwater, but “both conditions are vague and subject to substantial interpretation.”

In addition, we argue that there is no mechanism for public review and comment on the changes ordered by the hearing examiner, leaving the determination of compliance up to the city and IRG.

The following is a summary of our arguments (read the full motion for reconsideration here):

Traffic impacts: The record of the appeal hearing does not support findings that cumulative traffic impacts meet acceptable standards or will be adequately mitigated. Instead, the record shows that cumulative traffic impacts will violate standards at the most important intersection affected — the signalized intersection of Weyerhaeuser Way South and Highway18. The traffic condition imposed by the hearing examiner will not adequately mitigate for traffic impacts.

Hylebos Basin Plan: The hearing examiner should reconsider the conditions he imposed regarding compliance with the Hylebos Basin Plan. The supplementation of the stormwater plan should be for all stormwater generated by the cumulative impact of IRG’s five proposed projects, Warehouse A, Warehouse B and the Greenline Business Park (3 additional warehouses).

“Given that the city staff and its counsel have completely ignored the [Hylebos] Plan in the City’s initial review (Final Decision, page 4, lines 14-18), a mechanism for review and comment is necessary. In addition, the Hylebos plan is a multi-jurisdictional plan and the condition makes no provision for review, approval or even comment by King County, other jurisdictions or impacted tribes.”

We ask that the hearing examiner send the matter back to the city staff for further analysis and consideration, details in a revised staff report and decision on the project. “There should be notice of materials submitted regarding traffic and stormwater, the opportunity for public comment and appeal.”

The hearing examiner said one option under consideration is “a limited scope remand limited to considering pro-rata mitigation for cumulative traffic impacts and compliance with the Executive Proposed Basin Plan Hylebos Creek and Lower Puget Sound. This is not synonymous with a limited scope EIS — rather  this would be a re-evaluation of the SEPA threshold determination for the traffic mitigation and re-evaluation of stormwater plan compliance with the Executive Proposed Basin Plan Hylebos Creek and Lower Puget Sound.”

This approach would be more efficient, he said, than sending the entire project back to the city for re-evaluation. “Of course, if consideration of these issues resulted in modifications to the proposal, the modifications would be subject to full review as well.”

Anyone who provided written or verbal comment for the appeal hearing or requested notice of the decision may respond to the SWC motion for reconsideration by 5 p.m. Oct. 8. No new evidence will be allowed in any submitted comments. IRG and the city may submit a response by 5 p.m. Oct. 10, then SWC may submit a reply by 5 p.m. Oct. 14. Responses can be emailed to the city clerk at Stephanie.Courtney@cityoffederalway.com or delivered her at  Federal Way City Hall, 33325 8th Ave. S.

If any of the parties disagree with the hearing examiner’s decision, they can seek judicial review in King County Superior Court by filing a land use petition. The petition must be filed within 21 days . The land use petition must be filed within 21 days after the hearing examiner decision is issued to file a land use petition in King County Superior Court for judicial review.

You can support Save Weyerhaeuser Campus' legal advocacy with a donation of any amount

Save Weyerhaeuser Campus is a 501(c)(3) organization: EIN 81-3674786

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Partial victory in Warehouse A appeal

Highlights from the hearing examiner's ruling:

  • Two new conditions were added to the city's land-use and environmental approvals.
  • The city failed to assess the project's compliance under a Hylebos Creek basin plan and in fact said the city had not adopted the plan -- even though it had.
  • Community members and agencies had asked the city to require the project to comply with the basin plan.
  • It's unclear whether the community and agencies will be allowed to comment on the city's review of the plan and any mitigation proposed.

No development activity for Industrial Realty Group's Warehouse A project can occur until two new conditions are met, the hearing examiner for Federal Way said in a September 12 ruling. The conditions are:

1. Supplement the stormwater analysis and determination of mitigation for Warehouse A to demonstrate it complies with King County’s Executive Proposed Basin Plan Hylebos Creek and Lower Puget Sound Basin Plan. Although the plan is adopted in the Federal Way code, the city didn't address it in the Warehouse A review, the examiner noted. (In fact, he noted in his decision, the city stated in its closing brief that it hadn't adopted the plan, “none of the City witnesses identified any comprehensive application of the plan and the stormwater reports submitted into the record don’t identify that it was even considered.”)

2. Complete a transportation review for IRG's adjoining Greenline Business Park project (three additional warehouses) so that cumulative traffic impacts from all of its proposed warehouses on the campus are known. Determine any Warehouse A mitigation needed because of the overall traffic impacts.

Also in his ruling, the hearing examiner agreed with Save Weyerhaeuser Campus that the city was required to review and mitigate the cumulative impacts of all five warehouses (A, B and the business park) that IRG is proposing on the campus, not just one warehouse at a time.

However, the examiner concluded that the city had conducted such review and the impacts "have been adequately assessed and mitigated." The impacts from all five warehouses, more than 1.5 million square feet of space, include traffic, environmental and historic significance.

Although some of the decision is disappointing, Save Weyerhaeuser Campus is not giving up on its efforts, said SWC President Lori Sechrist,

“Save Weyerhaeuser Campus has worked relentlessly for three years to preserve and protect this precious and rare South King County green space,” Sechrist said. “Our work as a nonprofit organization, supported by hundreds of individuals from our community and region — including George Weyerhaeuser himself — continues."

"The SWC Board of Directors is reviewing its options as it continues its efforts to ensure development on the former Weyerhaeuser campus is environmentally and socially responsible,” Sechrist added.

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Earlier news:

Warehouse A appeal hearings wrap up; listen to audio from the hearing

After five days of hearings, the Save Weyerhaeuser Campus appeal of IRG's Warehouse A project concluded on Aug. 9, 2019. A major focus of SWC's appeal is the contention that the City of Federal Way was required to consider cumulative impacts from all five of IRG's proposed warehouses on the campus, not just impacts of Warehouse A.

The hearing examiner is expected to rule in the case in early September.

Listen to the hearing here:  June 20     June 21    August 7     August 8      August 9

Read the closing argument briefs from SWC, IRG and the city.

The hearing began June 20-21, but was continued for more than six weeks after the hearing examiner ruled that public comment had to be allowed under the city's appeal regulations. The August dates were the earliest available to accommodate publication of the public notice and the schedules of all the parties involved. The third day of the hearing (Aug. 7) included oral public comments; the public was also allowed to submit written comments

Warehouse A is the first of five warehouse/industrial buildings proposed by Industrial Realty Group of California on the historic Weyerhaeuser campus. The appeal is the latest step in SWC's nearly three-year fight to assure that responsible, appropriate development and mitigation occur on the campus, which may qualify as a National Historic Landmark.

Click to read our original appeal.

This is just part of the semi-truck loading area for Warehouse 

Seeking the 'big picture' view

SWC is seeking review of the cumulative effects from ALL of IRG's projects on the campus, so that the "big picture" of impacts to traffic, the environment and the integrity of the historic design can be appropriately considered and mitigated. 

Industrial Realty Group's other two projects on the campus -- Warehouse B  (adjacent to Warehouse A), and the three-warehouse Greenline Business Park on the northern part of the campus -- are continuing through the application review process. (In case you're confused, IRG initially renamed the campus Greenline but more recently changed the name to Woodbridge Corporate Park. The permit applications were filed under the Greenline name, so that's why it continues being used.)

The SWC legal team appealed the city's SEPA (environmental) decision for Warehouse A that was issued in October 2018 and the land-use decision that was issued in February 2019.  The two appeals were combined into a single hearing as required by law.

Under the Mitigated Determination of Non-Significance for Warehouse A, the city specified several migitation measures required during construction, and a provision that Weyerhaeuser Way must be completely rebuilt if more than 28 trucks per week travel north of the project site.

However, the Washington State Department of Transportation and the King County Department of Transportation raised concerns about significant impacts of traffic from all three projects, and requested they be studied comprehensively, not one at a time. A WSDOT representative was among experts testifying for SWC in the appeal.

In addition, the Puyallup and Muckleshoot Tribes requested further environmental study of cumulative impacts to the Hylebos stream system, which downstream provides habitat for endangered species including steelhead, chinook and bull trout. Millions of dollars have been spent on habitat restoration downstream from the Warehouse A site.

After reviewing the comments, the city added a requirement (requested by the WSDOT) that IRG expand part of the off-ramp from Highway 18 to Weyerhaeuser Way, but did not require comprehensive study of the cumulative impacts from the three project proposals.

Save Weyerhaeuser Campus also believes that comprehensive review is required because of the significant cumulative impacts of the three projects -- including the potential of more than 800 semi-truck trips to the campus every day. Although IRG has submitted these projects separately, they share common ownership, road system, stream system and zoning. 

You can support Save Weyerhaeuser Campus' legal advocacy with a donation of any amount

Save Weyerhaeuser Campus is a 501(c)(3) organization: EIN 81-3674786