Sammamish City Council squashes latest Ace Hardware proposal
January 25, 2013
By Ari Cetron
New: Jan. 25, 2:38 p.m.
Plan would have changed environmental, zoning regulations citywide
The Sammamish City Council Jan. 23 ordered city staff to try to find someplace to relocate Ace Hardware, just not in the spot Ace wants.
If the city were to have allowed Ace to build in its desired location, it would have set precedents and raised legal and policy issues the City Council did not want to confront. The plan would also need to short-circuit the typical process and level of citizen involvement involved in development, said Councilman Ramiro Valderrama.
The existing Ace Hardware’s lease is up in August. Ace owner Tim Koch has been looking for a new location to build a store. He thought he’d found one on 228th Avenue wedged in between Mars Hill Church, Starbucks and KinderCare.
However the entire property is covered by stream buffers – areas declared unbuildable because construction there could cause damage to a stream, in this case George Davis Creek.
An earlier plan had called for a swap of some land with the city, but that complication was eliminated from the latest proposal. However, the land is still covered by stream buffers.
The new proposal would require doing something to reduce the impact of developing in a stream buffer, said Elliott Severson, a representative of SR Development, which owns the property. He and Charles Kilnge, attorney for Ace, said they could negotiate a Development Agreement with the city which would solve the issues.
However doing so would pose significant hurdles, said Kamuron Gurol, development director for Sammamish. In order to make the project work, Gurol said, the city would need to make major changes to its environmental regulations, the city zoning ordinance and a host of more technical changes. All of this would need to be done as a so-called “emergency” meaning the changes would not first need to go through the Planning Commission before coming to the City Council.
Even if the city were to go forward, Gurol said Ace’s timeline makes the project problematic. There are at least three separate places where a decision of the City Council’s decision could be appealed to either a hearing examiner or court. If any one of those were to occur, Ace’s timeline would be thrown off.
“I wish I could solve this problem for you,” Gurol said. “I don’t think I can, and, in fact, I’m sure I can’t.”
City Attorney Bruce Disend raised a set of possible legal problems to go along with the bureaucratic challenges.
According to Disend, negotiating a development agreement of this sort has not been done in the state of Washington. Furthermore, the time crunch would make negotiating such a plan difficult. He said such agreements, similar to a contract negotiation, can take months or years to finalize, while this would need to be completed in a few days.
Additionally, he would need to perform the negotiations without having all of the details of the proposed development.
“Time just doesn’t seem to be a commodity that we have in this particular project,” Disend said.
Disend also picked up on Gurol’s comments that someone could bring a suit to stop the project. He noted Sammamish’s active environmental advocates and said they might have a problem with developing in a stream buffer. While he said a lawsuit was not guaranteed, he said he thinks it more likely than not.
At the end, the council opposed the plan unanimously.
Councilwoman Nancy Whitten raised concerns about setting a precedent and playing favorites. As beloved as Ace is, Whitten noted that the law cannot make exceptions. If the city goes through this process for Ace, they would need to do it for everyone.
“Anyone denied under typical codes could come in and ask for this type of treatment,” Whitten said.
The property where Ace Hardware wanted to relocate is completely covered by environmental buffers, which at first blush might make it seem like nothing could be built there. Under Washington law, however, something can be built there, it’s just not clear what.
Property owners are entitled to “reasonable use” of their land, even if, like this case, strict interpretation of the law would render the property unusable. In these sorts of cases, they can build there, but it has to be the use with the least possible impact.
What, exactly, constitutes a “reasonable use” in the case of commercial property is open to interpretation. It has not been defined in city or state codes, and the courts have never weighed in on the matter. If Sammamish were to allow the hardware store, it would set a precedent for developing in environmentally sensitive areas. Other developers would then be able to demand that similar projects be permitted.
Furthermore, under state law, the standard of least possible impact doesn’t mean the lowest-impact version of what the person might want to build; it means the lowest impact in absolute terms. For example, if the zoning would allow for someone to build an espresso stand, that would have less impact than a hardware store.
What happens now?
The City Council directed city staff to continue to work with Ace Hardware to find a new location.
Ace Hardware owner Tim Koch posted on Facebook Jan. 24 that he expects the store to close in August when their lease ends. Koch also asks that anyone who knows of a possible new location contact him.