Ace Hardware faces uphill battle
January 17, 2013
By Caleb Heeringa
The proposal to build a new Ace Hardware off 228th Avenue near Mars Hill Church appears to be a tough sell, due to the property’s proximity to a nearby creek and wetland.
“This isn’t even close – this is Alabama-Notre Dame,” Councilman John Curley said at a Jan. 8 council meeting, comparing the proposed development to the college football national championship the night before.
Lawyers representing the city and Ace owner Tim Koch resolved to sit down and attempt to find solutions. However, the proposal drew skeptical questions from councilmembers concerned about the corners that would need to be cut in city regulations and dire warnings from city staff of possible legal challenges.
Community Development Director Kamuron Gurol said the site is extremely constrained by the fish-bearing George Davis Creek to the north and a wetland to the south.
While the city’s initial information showed about 80 percent of the property covered by buffers preventing development, recent surveys indicate that the property is even more constrained — the entire property is in a buffer, with a majority of the property covered by overlapping buffers.
The city’s critical areas code, which is due to be updated later this year, contains some wiggle room, allowing the city to reduce the size of a buffer by as much as 50 percent if the development reduces its environmental impact in other ways.
But Gurol said it’s hard to envision reducing it enough to fit an 11,000-square-foot hardware store, surrounding parking lot and semi-truck loading area onto the property.
“Given that I don’t see any developable area on the site, the only option I see is for the City Council to make major changes to city code,” Gurol said.
Koch and his development team, including land use attorney Charles Klinge, disagree. The group is asking the city to enter into a development agreement for the property – essentially a bilateral agreement outside the city’s typical permit approval process that sets the terms of the area’s development.
Bill Way, president at environmental consultant The Watershed Company, said he is convinced that the property can be developed in a way that would have less of an impact on the stream and wetland than it does now. The property currently houses two storm water ponds that were installed as part of the widening of 228th Avenue to handle runoff in the area.
Those same ponds likely wouldn’t be allowed under current city code. The team’s proposal calls for large underground storm water vaults to replace the above-ground ponds, with Ace Hardware and its parking lot going on top.
“This isn’t black-and-white. If it was black-and-white, I wouldn’t be here,” Way said.
The development team is working on more specific designs for the property and potential environmental mitigations.
While Klinge assured the council that a development agreement could supersede the city’s environmental codes, Michael Walter, a land use attorney hired by the city’s insurance company, disagreed.
“I’ve never seen a development agreement attempted to be used to address wetland buffers,” he said. “I’m not aware of any court decision from this state addressing that point. You folks would be the test case for that.”
In addition to the prospect of a lawsuit from environmental advocates, Gurol said he was concerned that the project would impact the city’s upcoming review of its environmental code. Any changes, including tools to provide landowners with additional flexibility, would get a look from federal and state agencies, who would pay attention to a recent history of cutting corners on the environment.
“I believe it’s a risk for the city,” Gurol said. “If we’re making changes to the (environmental code) that we believe we have a good story for, those could be delayed or compromised because of this … I’ve found that state agencies look at both the letter of the law and the situation on the ground. They don’t just look at what our adopted code is — they look at how we’ve been applying it.”
While Councilmembers Nancy Whitten and Tom Vance were openly skeptical of making a large exception to environmental code right next to a creek, Don Gerend and John James argued that George Davis Creek did not have enough ecological value to justify a 215-foot buffer as required by code. The creek saw spawning Kokanee salmon at its mouth last fall, but has several natural and manmade barriers between there and the upper reaches of the creek. Public Works Director Laura Philpot noted that other types of trout have been documented in the upper reaches near the proposed Ace site.
“Seeing as how the quality of this particular stream is not pristine, it seems reasonable that we’d have options as far as mitigation,” James said. “It seems like we’re setting a high priority on a low quality creek.”
In an interview, Koch said he felt confident that a majority of Sammamish residents would prioritize a hardware store over the potential impact on the wildlife around a creek or wetland.
“I bet if you got 2,000 residents together and asked them, you might find two that would say ‘Oh I saw a frog there or something else that could be damaged,’” Koch said.
Regency’s side of the story
At the Jan. 8 council meeting, Ace Hardware owner Tim Koch took a moment to assure the council that he was dedicated to seeing Ace Hardware thrive in Sammamish, if they help provide some flexibility with the proposed development.
“I’m making a long-term investment in the city as a business owner,” he said.
In a later interview, Koch acknowledged he had been considering retirement. He said he had been searching for new buyers for Sammamish Ace before lease negotiations with his landlord at Sammamish Highlands Shopping Center, Regency Centers, fell apart. At 61, Koch said he still hopes to retire at some point in the future, but said he’d likely have an investment in the building and land of the proposed new Ace.
He said anyone who took over operation of the new hardware store would keep it the same sort of local operation it’s been for the last 20 years.
“I wouldn’t sell it to some kind of small-time outfit, because who knows what they would do with it,” Koch said. “It’s important to the community to keep (Ace Hardware) alive and going.”
Kalin Berger, leasing agent for Regency, said in an interview that the company had given Koch more than a year to find new owners for Ace but eventually elected to find someone else to take the Ace location because time was running out on the lease.
He said the disagreement between Regency and Koch was never about the amount of rent being charged and noted that the company gave Ace a year extension to help it find a new location. He declined to disclose what company would be moving into the Ace space.
“We have a fiduciary responsibility to make sure we have tenants in our commercial spaces,” Berger said.
Koch said he had signed a non-disclosure agreement that prevents him on commenting on the disagreement with Regency.