An update from the City Staff was provided the City Council at a special meeting January 8.

Here’s a running synopsis as Kamuron Gurol, community development director, made his presentation to the Council.

• Goal to give you a status report and recommendations to Council.
• Some environmental requirements need to be changed.
• Negotiate a Development Agreement.
• Standard public notices will be required.
• Held four meetings with Ace over the holidays.
• Have a very severe time constraint, had been working on this for 14 months.
• Seven months before the Ace lease expires.
• Project has to meet requirements: meets public interest, meets enviro requirements and be defensible.
• Two stormwater ponds on the city-owned property, and a bog-wetland immediately east of the lot.
• Building is 10,000-12,000 sf plus 2,000 sf garden center needed, large truck access and turn-around.
• A single-level building and at-grade parking needed.
• Existing stormwater facilities have to be replicated and expanded.
• It is in a critical aquifer recharge area.
• Category 1 wetlands need 215 ft buffers and 15 ft building setback.
• George Davis Creek has some buffers.
• Site appears to be 100% constrained or nearly so.
• Applicants have produce environmentally critical area study and have made some site adjustments to lessen impact.
• Applicants have provided recommendations for Council actions “road map” to expedite permitting processes.
• Given enviro constraints, major code changes required. (Underlining is the staff’s emphasis.) Administratively these changes cannot be done, requires code changes.
• “Staff does not see how to approve this proposal by the deadine with a defensible record.” Direct quote from presentation.
• Emergency ordinances would be required.
• Comprehensive Plan has to be amended and applied city wide, requiring public hearings.
• Don’t have code for a Developer’s agreement, need code changes for this.
• Certain State reviews will be required.
• Some federal regulations have to be met.
• Permitting challenges great.
• Permitting and project approval could be appealed.
• Site and construction time compressed. Not an easy site to deal with.
• This project doesn’t meet the test to under-promise and over-deliver.
• Site not able to support hardware/garden center use due to constraints.
• Major policy questions.

Council questions:

• What are ripple effects: Answer: you can’t make code changes for one person, it has to be city-wide. A SEPA checklist required to analyze this, but state doesn’t approve but can comment on these changes, which might delay process.
• Given all the existing development around George Davis Creek, should standard be to do no more harm: Answer: We do have documented evidence that fish live in the stream at the top of the Plateau.
• City Manager: Federal and state mandates for buffers have changed in last 10 years.
• Quality of this particular stream is not pristine. It’s making this land is unbuildable; Answer: Current adopted codes don’t allow change or allow this development to go through. City Manager: This particular site has [too] many challenges.
• Tom Vance: I want to stop the denigrating of George Davis Creek. There are salmonoid in George Davis Creek. Water comes from upstream. There are environmental constraints from three directions.
• John Curley: there are legal risks to be considered.

Applicant responses:

• We have to deal with setbacks but we don’t have to build on wetlands and streams.
• Our goal is a mitigated impact and even improve the site environmentally.
• A Development Agreement can deal with these process issues. We are not asking the City to do anything illegal. Kamuron is conservative. Some of the things that he says have to be done, we’re not convinced he’s correct.
• Watershed (an environmental company) hasn’t yet developed a mitigation plan. We need a week to do this.
• Other jurisdictions use a Development Agreement. There are hurdles and risks but a DA minimizes risks.
• We don’t think the project is dead.
• We need the City and Council to use all the tools in tool box, and that’s a Development Agreement.
• Council should direct attorneys to meet about DA.
• Watershed: Been doing stream and wetland mitigation work for 30 years. While this appears to be a very difficult situation, it’s not an impossible site.
• We don’t get to the end of solving this thing by looking at buffers. We get to the end as an internal self-mitigating mechanism by mitigating impacts of development on-site and off-site. It isn’t black and white.
• Watershed has done almost all the work on George Davis Creek that’s good: SkyLine, Eastlake, the City, for example.
• The City site is quite compromised. The ponds there could be dredged out to within two feet of the wetland; there is a road around it for access. To say a site that can’t be made equal or better is not true.
• We could have easterly two fifths of the site be natural wetland and have underground vaults for water retention.
• Ace Attorney: If Kamuron wants to change the codes, the hurdles are high. A Development Agreement in state code is permitted and enables a project like this.
• A DA won’t have ripple effects.
• We’re not proposing changing code. The DA allows this. Staff has a different of opinion, which says DA doesn’t have sufficient authority to make changes. We think it does.
• Watershed believes goals of Critical Areas can be protected. We think we can make the site better with better functioning wetlands.
• Reasonable Use Exception is also a legal mechanism.
• You can adopt Development Procedures by Resolution–don’t need an ordinance.
• We could have a DA to you by the middle or third week of February for approval.
• If you have the will to make it happen? Yes, you need opinion from legal counsel and if it is viable, we have the team to put this together.

Outside Counsel for City of Sammamish:

• This law firm works almost exclusively for governments and has crafted and defended DAs in past.
• DAs are contracts and bound by contract law.
• You cannot use a DA to alter a number of things applicant seeks. You can’t use it to change Comp Plan elements or land swap or underlying zoning or change stormwater regulations unless on a very small level.
• Standards in a DA has to be consistent with existing codes and Comp Plan.
• In my experience I have never seen a DA be used or attempt to be used to alter buffers. I’m not saying you can’t but I haven’t seen it. You would be the test case for this.
• Third parties have a right to challenge DA, and I think there is a high risk a challenge would be forthcoming on buffers, Dept of Ecology, Army Corp of Engineers, neighbors or environmental authorities.
• There is no legal authority to fall back on. You would have to argue the specifics of this situation. We would be in uncharted territory.
• I’ve not seen a DA incorporate an RUE. There is no case law. I don”t know if it would withstand a legal challenge.
• I don’t think this project as proposed would qualify as an RUE. It would be difficult to defend.

John Curley lets it slip that the Sammamish City Attorney believes a DA can’t be done.

Curley makes a motion to have the attorneys meet to discuss a DA. It passes 7-0.