2007, 11-27 Regular Meeting MinutesAttendance:
Diana Wilhite, Mayor
Dick Denenny, Councilmember
Mike Devleming, Councilmember
Bill Gothmann, Councilmember
Rich Munson, Councilmember
Gary Schimmels, Councilmember
Absent:
Steve Taylor, Deputy Mayor
MINUTES
City of Spokane Valley
City Council Regular Meeting
Tuesday, November 27, 2007
Mayor Wilhite called the meeting to order at 6:00 p.m., and welcomed everyone to the 128 meeting.
City Staff:
Dave Mercier, City Manager
Mike Connelly, City Attorney
Mike Jackson, Deputy City Manager
Ken Thompson, Finance Director
Greg McCormick, Planning Manager
Neil Kersten, Public Works Director
Kathy McClung, Community Development Dir
Karen Kendall, Assistant Planner
Cary Driskell, Deputy City Attorney
Carolbelle Branch, Public Information Officer
Chris Bainbridge, City Clerk
INVOCATION: Pastor Goodwin of Millwood Community Presbyterian Church gave the invocation.
PLEDGE OF ALLEGIANCE: Mayor Wilhite led the pledge of allegiance.
ROLL CALL: City Clerk Bainbridge called roll; all councilmembers were present except Deputy Mayor
Taylor. Mayor Wilhite said that Mr. Taylor has recused himself from tonight's hearing, with the plan to
join the meeting later.
APPROVAL OF AGENDA: It was moved by Councilmember Gothmann, seconded and unanimously
agreed to approve the agenda as submitted.
INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS: N/A
COMMITTEE, BOARD, LIAISON SUMMARY REPORTS:
Councilmember Gothmann: mentioned he attended the National League of Cities (NLC) conference
last week; and one of the workshops included information about contemporary trends in local government
including the technology impact on government, such as e -mail and on -line applications.
Councilmember Munson: said he participated in the Association of Washington Cities (AWC) on -going
sub - committee dealing with streamlined sales tax where they continue to have problems in solving
identification tracking to ensure the tax would be properly distributed; he also attended a public
discussion on the STA (Spokane Transit Authority) budget, and mentioned members of the committee
were surprised to learn that one of their properties is being considered as a possible future jail site; he
mentioned that about a month ago, we sent the Board of County Commissioners a letter asking them to
identify or designate UGA's (Urban Growth Areas) that are on our borders, but that as of today, there
has been no response; and that he also attended the NLC Conference, and a workshop on ethics.
Councilmember DeVleming: said that he has been doing his "goodbye tour" of his committees; and has
been reading materials to prepare for tonight's meeting.
There were no other Councilmember reports.
MAYOR'S REPORT: Mayor Wilhite reported that she also attended the NLC Convention in New
Orleans; and while there went on several tours of the area, and that she is amazed at the amount of re-
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building that is still needed after the hurricane; and she mentioned the importance of having good
communication and a plan for emergencies.
PUBLIC COMMENTS: Mayor Wilhite invited public comment; no comments were offered.
1. APPEAL HEARING: Landworks Appeal, Quasi Judicial, Closed Record Hearing — Mike Connelly
Mayor Wilhite opened the "closed record" hearing at 6:11 p.m. and invited City Attorney Connelly to
speak. Mr. Connelly explained that tonight Council holds the scheduled and noticed closed record hearing
for the Landworks Development appeal; he explained that the process allows twenty minutes for oral
argument from the appellant, and likewise from the party in opposition to the appeal; that oral argument
should refer to the record; that the allotted time includes the combined time used by a side for opening
argument, rebuttal and surrebuttal; and that at the close of the hearing portion, Council may deliberate
immediately, or move into executive session if members of Council have legal questions; or the
deliberation can be continued to another date if Council feels it cannot reach a decision tonight; all of
which will be followed at a subsequent meeting, for adoption of formal findings of fact.
Attorney Connelly said a motion to supplement the record was filed yesterday, and that motion from
Attorney Bjordahl has been provided to Council. Mr. Connelly said he reviewed the motion and the
materials sought to supplement the record, and he recommends that the request does not meet the criteria
set forth in the allowance; that there are only two circumstances which allow for submission of
supplemental material: that there are grounds for disqualification of the Hearing Examiner when such
grounds were unknown by the appellant at the time the record was created; or there were matters
improperly excluded from the record or were outside the jurisdiction of the Hearing Examiner. Mr.
Connelly said that since we are discussing the review made by the same Hearing Examiner, he feels there
is no argument for a remand. Before proceeding with the hearing in chief, Mr. Connelly said we can hear
from the moving party to expand the record, and then from the other party to rebut. In response to
question, Mr. Connelly said the twenty minutes does not apply concerning the motion to supplement the
record.
Stacy Bjordahl, 422 W Riverside, Suite 1100, speaking on the motion to supplement: Mr. Bjordahl
explained that this matter is the sequel to the Ponderosa Ridge PUD; and the motion is to include a copy
of the decision rendered November 13, 2007 by the Washington State Court of Appeals which affirmed
the Hearing Examiner decision on the Ponderosa Ridge PUD. She stated that it is significant to include
that the Hearing Examiner decision relies heavily on, and the record majority consists of, the Ponderosa
Ridge documents; that the Hearing Examiner relies heavily on the evacuation study prepared for the
Ponderosa Ridge PUD and devoted ten to twelve pages of his Findings Of Fact on that; and that she feels
this is important that the Court of Appeals be entered as part of the record as it relates to those issues; and
since that appeal and proceeding is a matter outside the jurisdiction of the City's Hearing Examiner, the
supplementation of the record should be allowed under the Spokane Valley Municipal Code
10.35.150(I)(3).
Tamara Murock, representing Ponderosa Properties Homeowners' Association, 720 S Howard 99201:
Ms. Murock said the Association concurs with the opinion of the City Attorney and feels the request to
supplement is not appropriate; and that Spokane Valley Municipal Code 10.35.150(I)(a) states that any
request that the record be supplemented "shall submit" such request within fourteen days of the date the
appeal hearing was scheduled; that this is mandatory as it states "shall" submit, and Ms. Murock said we
are already beyond that, and that she would object to the supplementation.
City Manager Mercier stated that the question before Council now to consider is whether to accept the
City Attorney's opinion that the record should not be supplemented. It was moved by Councilmember
Munson and seconded, that we accept the City Attorney's opinion that we not supplement the record. To
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Approved by Council: 12 -11 -07
address his motion, Councilmember Munson stated that he feels the supplemental material will not add
that much to the argument, and that Council has enough information to make a decision, and he would
like to move forward with the closed record appeal. After further brief Council discussion, including
mention that there is voluminous mention in the record concerning the Ponderosa Ridge development,
Council voted by acclamation on the motion to accept the City Attorney's opinion that we not supplement
the record: In Favor: Unanimous. Opposed: None. Abstentions: None. Motion carried.
Attorney Connelly explained that now is the time for Council to hear the argument from the appellant and
respondent; and he urged both attorneys to refer to the record, and in mention of specific documents, to
include page numbers if appropriate, so Council will know exactly what document they are referencing.
Mayor Wilhite reminded the Attorneys that they each have a total of twenty minutes for presentation and
rebuttal.
Stacy Bjordahl: Said she speaks on behalf of Landworks Development, and said her main emphasis or
focus is on the rules; she explained the process of the issue of how they began several years ago and of
what they submitted. She stated that at that time, our staff made a determination based on the evidence,
that the project is consistent with the Comprehensive Plan and with zoning, but that the Hearing Examiner
threw out the rules and denied the project based on his arbitrary new rule concerning neighborhood
evacuations in that those must occur within thirty minutes of the time it was determined such evaluation
was needed. Ms. Bjordahl said there is no standard about a thirty- minute evaluation policy; and that the
Hearing Examiner erroneously, and outside his authority and jurisdiction, made such law. She said that
he relied on comments from the First District and a letter from the Sheriff's Office, none of which were
specific to this project but were to the Ponderosa Neighborhood as a whole. Ms. Bjordahl then
highlighted some of the Hearing Examiner's findings to demonstrate that the record supports that this
project should be approved: Finding #152 concerning the City adopting by reference the Spokane County
Road Standards; Finding #156, #163 and #165 where the applicant prepared and submitted a
transportation traffic impact analysis which found the area complied with all the City's rules and
regulations; Finding #167 that the City Engineer certified that the proposal met all the transportation
concurrency regulations; that the Fire District has conditions of approval but none required the applicant
to construct a third access into the neighborhood; and that Findings #190 and 199 states that Hearing
Examiner examined the city road standards and said they are not intended to the area wide neighborhood;
but she stated, if the Hearing Examiner made such findings, she questioned how he concluded that in the
absence of any rule or regulation, that the provisions must provide for emergency access. Mr. Bjordahl
also mentioned that Todd Whipple stated there is no standard, and that he arbitrarily elected a thirty -
minute standard and made conclusions that the Ponderosa be evaluated within thirty minutes, which Ms.
Bjordahl stated, is irrelevant as there is no such City standard. Mr. Bjordahl stated that Finding #210
states that evacuation is not the preferred method, that the Fire District would not evacuate but would use
emergency shelters instead; and that the Hearing Decision is not supported by city staff recommendations
to approve the project on the City's own adopted rules and regulations. Concerning the rezone, she
explained that there was a request to rezone the property from UR 3.5 to UR 7 *, that the density is
consistent with UR3, but they sought to rezone as that would allow narrower lots and greater flexibility
and also preserve the wetland; but she said this project does not exceed density of the 3.5 and is within the
acceptable range; and that concerning the wildlife study, the Hearing Examiner erred when he went
against the recommendation of staff to require the applicant to hire a wildlife biologist to determine if
there were any impacts to deer. Ms. Bjordahl said she reserves the 4.5 minutes for rebuttal.
Tamara Murock: Ms. Murock, speaking on behalf of Ponderosa Property Homeowners' Association,
said that the Hearing Examiner decision is presumed correct and the appellant must overcome that
presumption; that the record reflects that Fire Districts 1 and 8 over many years expressed disapproval of
continued development without a third public access; that this recommendation is supported by the
Sheriff's Office, which is responsible for evacuating citizens in case of emergency; that the record
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contains numerous examples cited of the inadequate number of access /egress roads; and that the appellant
argues that this is an area -wide problem with no standard. Ms. Murock cited section 1.03.1 of the City
Road Standards which addresses the need for adequate road access; and section 12.400.122 of the City's
interim ordinance which addresses public safety; that under State statute in this planning process, the City
must inquire into the process to ensure appropriate provisions are made for the streets, and citizens' safety
and welfare. Even without that, she explained, the City's interim Comprehensive Plan provides these
standards and rules. Ms. Murock said there are many applicable standards and rules upon which the
Hearing Examiner denied this proposal; that the Hearing Examiner did not act outside his authority, and
his denial is consistent with prior land use decisions on this property. Ms. Murock explained that in 1992
and 1993, sponsors attempted to re- develop and both of those preliminary plats and rezones were denied
by the Board of County Commissioners due to insufficient public access in the Ponderosa, with the
specific finding that public health and safety would be jeopardized. She further explained that the
Hearing Examiner specifically addressed previous rulings and concluded that this proposal concluded it
does not make adequate provision for public health and safety; that Fire District 8 has no jurisdiction over
this site but Fire District 1 does, and Fire District 1 testified that they still need to consider evacuation and
shelter, and have performed a study which is in the record that states that shelter is not preferred and
should never be the sole planning tool to local enforcement and fire personnel, but rather should be a fall-
back in case of lack of time to evacuate. Concerning the rezone, Ms. Murock said under Washington law
one must prove that the conditions have changed since the original zoning or implements the policies of
the Comprehensive Plan; that the Hearing Examiner denied the rezone which is consistent with the 1992
and 1993 denial of the rezone for seeking even lesser density. That concerning the wildlife issue, when
the area was developed in 1999 or 2000, wildlife biologist Larry Dawes was hired to analyze the impacts
of development associated with adjacent wildlife areas; and found that the wildlife area or travel corridor,
which is the entire west portion, is restricted by an easement; and that there is substantial evidence on this
in the record, including that there is a 115 foot protecting easement butting against the wetland located in
the center of this proposed site, and corridors and easement are used daily by migrating deer. Ms. Murock
said that the Critical Areas Ordinance is in place to protect wildlife areas and interconnect corridors, and
that the proposed project will obstruct the wildlife route. She stated that the wildlife expert forgot he
designated those corridors on the adjacent property; but explained they should have been considered; that
the City, along with the Department of Fish and Wildlife were not initially aware of these easements, but
after being made aware, their existence should have been disclosed during the application stage and
honored. Ms. Murock ended by stating that the appellant has not met the burden under the standards.
Rebuttal by Ms. Bjordahl: Ms. Bjordahl stated that this property was originally in the County within an
Urban Grown Area (UGA) boundary; and when the City incorporated this property was included in the
City limits; that it went through the Comprehensive Plan process and was found to be an area appropriate
for urban residential development; and a determination was made to develop for single family homes
within a certain range, and asked for the ability to subdivide the land that already had been determined
appropriate for this use and density. Ms. Bjordahl further stated that the record reflects ingress or egress
into the Ponderosa, but that the Hearing Examiner only talks about egress and not ingress. As noted in the
brief, she stated there is a third emergency road which was put in place in 2002 to provide access for fire,
but the Fire District wanted a better third access; and summarily dismissed that third access. Ms. Bjordahl
explained that the evacuation study contained an arbitrary standard adopted by Mr. Whipple, as there is
no thirty- minute standard adopted by the City in terms of evacuation; and no evacuation standard at all.
She stated therefore that the Hearing Examiner performed his own analysis of the evacuation plan; that
staff reviewed the project, and found it complied with all rules and regulations which the City had
enacted, and therefore, she asks Council to affirm the recommendation of city staff and reverse the
decision of the Hearing Examiner.
City Attorney Connelly said that the hearing portion has now concluded, and Council can deliberate now
or can adjourn into Executive Session if Council has legal questions. Attorney Connelly also reminded
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Councilmembers that they are sitting as "judge" of this issue and cannot discuss the matter; and should
Council call for a recess, members of the public should not approach Council on this issue or ask
questions of them.
Mayor Wilhite closed the hearing at 7:07 p.m. After City Attorney Connelly explained Council's options,
to affirm the Examiner's decision; or reverse the decision or remand if for further proceedings if the
appellant has carried the burden of establishing that the examiner engaged in unlawful procedure or failed
to follow a prescribed process, that the decision is an erroneous interpretation of the law; that the decision
is not supported by evidence that is substantial when viewed in light of the entire record, that the decision
is a clearly erroneous application of the law to the facts; or that the decision is outside the authority of the
Examiner; and that Council shall adopt written findings and conclusions in support of its decision.
Councilmembers concurred to move forward tonight with deliberation.
Mayor Wilhite called for a brief recess at 7:11 p.m., and she resumed the meeting at 7:19 p.m.
2. COUNCIL DELIBERATION: Landworks Appeal — Mike Connelly
It was moved by Councilmember Munson and seconded, to affirm the Hearing Examiner's decision. Mr.
Munson said he feels Council should accept staff's assessment of the situation, and that he believes the
appellant has not met any of the items noted previously by Mr. Connelly that had to be proven; and
further that he doesn't want the Ponderosa to be subject to disaster.
Council discussion included the question of the thirty- minute evacuation, and that they feel the Hearing
Examiner was not relying on that thirty minute time frame, but on the overall safety concern of the
neighborhood; that there is significant amount of data to uphold the theory that the Ponderosa should have
more exists and abundant evidence to show that the Hearing Examiner did not err in his decision
concerning access; that the mention that the Hearing Examiner was using the thirty- minutes as a standard
is not support by the record; that the traffic study was analyzed and found to be inadequate; that Mr.
Whipple's testimony of record is confusing and doesn't answer the question; and that the appellant has
not made the case concerning unrestricted access for animals to get through; that the applicant's wildlife
issue perhaps could be remanded back to the applicant to revise; that the Hearing Examiner denied the
rezone so as not to relax the development standards for the preliminary plat; that Council complimented
the applicant on doing the development to protect the wetlands; and that another road is justified before
allowing additional development.
Councilmember DeVleming also mentioned that while the streams, groundwater, wildlife traffic plans
and escape route are all important, they don't constitute all the issues in that neighborhood; and there are
other concerns like getting bussed in to fill classrooms; that for some this is an issue of wanting another
house; that he feels more can be accomplished if we get down to the issues: that the area is not safe; yet if
it wasn't safe, why aren't people moving out of there, and why would a developer want to invest any
money to build houses if no one will buy houses if the area is not safe. Councilmember DeVleming said
that the Sheriff's Office said during that last fire storm, for people to get out but people went back up to
get other cars and animals; and that based on the Hearing Examiner decision, he feels the Hearing
Examiner went outside his authority on this.
It was moved by Councilmember Munson and seconded to call the question. Vote by acclamation on
calling the question: In Favor: Councilmembers Schimmels, Denenny, DeVleming, Gothmann and
Munson. Opposed: Mayor Wilhite. Abstentions: None. Motion carried. Vote by Acclamation on the
motion to affirm the Hearing Examiner's Decision: In Favor: Mayor Wilhite, and Councilmembers
Schimmels, Denenny, Gothmann and Munson. Opposed: Councilmember DeVleming. Abstentions:
None. Motion carried.
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Approved by Council: 12 -11 -07
Mayor Wilhite asked Attorney Connelly to bring Findings to Council for formal adoption at a subsequent
meeting.
3. CONSENT AGENDA: Consists of items considered routine which are approved as a group. A
Councilmember may remove an item from the Consent Agenda to be considered separately.
a. Following Claim Vouchers:
Voucher List Dated 10 -16 -2007; November 15, 2007
b. Payroll for Period Ending November 15, 2007: $191,889.94
c. Property Lease Agreement with WEB Properties
It was moved by Councilmember Munson, seconded and unanimously agreed to approve the Consent
Agenda.
NEW BUSINESS:
4. Second Reading Proposed Ordinance 07 -024, Street Vacation STV 04 -07 — Karen Kendall
After City Clerk Bainbridge read the ordinance title, it was moved by Mayor Wilhite and seconded that
Council adopt ordinance 07 -024 as amended with regard to item 5 in the amount of $1,258.11 to be paid
to the City. Planner Kendall briefly explained the ordinance per her PowerPoint, and mentioned the
added language in the ordinance to address the compensation issue. In response to Councilmember
DeVleming's questions about a paved section of the road which was paved prior to the vacation being
granted, Ms. Kendall said that permission was granted from the Planning Department to do that paving,
that the site plan process began in 2006 and it has taken this long to get through the two -stage process;
that this small area was designated and had already had interested development, and to make the area
more marketable for setback reasons, the paving was approved; and as part of the road widening effort,
that it was possible that some right -of -way dedication was required but they ended up not needing that
strip, and she stated that we usually don't offer compensation for that. Mayor Wilhite invited public
comment; no comments were offered. In response to a question from Councilmember Munson on
whether staff spoke to landowners to see if they were willing to pay, Ms. Kendall said she spoke with the
owner from E &S Development who said he was unable to attend tonight's meeting, and that he was
impartial if he had to pay or not.
Councilmember Denenny said he struggled with the cost issue, and feels putting it back on the tax rolls
would be appropriate, thereby allowing the area to be nicely developed; Councilmember Gothmann
concurred; adding that it appears there is no reason to retain possession of this area, but many reasons to
have the developer obtain possession. It was then moved by Councilmember Gothmann and seconded to
amend the motion to exclude paragraph 5a and section 5 c in red, which references payment to the city.
Councilmember Munson suggested Council move forward with caution as they are setting precedent; and
City Manager Mercier remarked that Council adopted policy that states we will seek compensation; and
that if Council is disquieted over that policy and wants to reconsider it, or is uncertain of what direction to
give staff regarding potential compensation; that perhaps it would be more healthy to schedule that
reconsideration. Councilmember DeVleming said that he doesn't want to deny the ability of charging,
and hopes staff will in future vacation requests, explain the potential of being charged as Council will
make individual decisions. Councilmember Denenny added that he wants the option to determine if land
has a market value. Councilmember Munson called for the question. Vote by Acclamation on calling the
question: In Favor: Unanimous. Opposed: None. Abstentions: None. Motion carried. Vote by
acclamation on whether to amend the motion: In Favor: Councilmembers Schimmels, Denenny,
Gothmann, Munson and DeVleming. Opposed: Mayor Wilhite. Abstentions: None. Motion carried.
Mayor Wilhite invited public comment; no comments were offered. Vote by Acclamation on the amended
motion to adopt Ordinance 07 -024 and to exclude paragraph 5a and section 5 c in red, which references
payment to the city: In Favor: Councilmembers Schimmels, Denenny, Gothmann, Munson and
DeVleming. Opposed: Mayor Wilhite. Abstentions: None. Motion carried.
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Approved by Council: 12 -11 -07
5. Mayoral Appointment: Spokane Regional Clean Air Agency — Mayor Wilhite
It was moved by Councilmember DeVleming and seconded to confirm the Mayor's appointment of Deputy
Mayor Steve Taylor to the Spokane Regional Clean Air Agency. Mayor Wilhite invited public comment;
no comments were offered. Vote by Acclamation: In Favor: Unanimous. Opposed: None. Abstentions:
None. Motion carried. It was noted that the term will run January 1, 2008 through December 31, 2010.
PUBLIC COMMENTS Mayor Wilhite invited public comment; no comments were offered. none
AAMINISTRATIVE REPORTS:
6. Governance Manual Update — Councilmember DeVleming
Councilmember DeVleming gave the annual review of the proposed changes in the Governance
Coordination Manual as shown in the redline version of the document. There were no objections to any
of the proposed changes; and it was determined for Exhibit A -3 to add the language of "calling the
question" and have that recommendation for motion approval remain with a simple majority.
Councilmembers DeVleming and Denenny remarked about the discussion held in drafting the language
for the new Section 7 of the resolution amending the core beliefs, and Council concurred with the changes
and agreed to place these resolutions on the next Consent Agenda for formal approval.
It was moved by Councilmember Munson, seconded and unanimously approved to excuse Deputy Mayor
Taylor from tonight's meeting. Mayor Wilhite mentioned that since Mr. Taylor recused himself from
tonight's public hearing, he attended a public hearing held before the Board of County Commissioners.
INFORMATION ONLY: These three items were for information only and were not discussed
7. License /Registration Process Update — Chris Bainbridge
8. Contract Settle and Adjust — Morgan Koudelka
9. Paperless Agendas — Chris Bainbridge
EXECUTIVE SESSION: Land Acquisition; Pending Litigation.
It was moved by Councilmember Gothmann, seconded and unanimously agreed to extend the meeting to
9:15 p.m. It was then moved by Councilmember Denenny, seconded and unanimously agreed, to enter
into Executive Session for the purpose of discussing land acquisition and pending litigation, for
approximately 30 minutes, with 170 action anticipated thereafter. Council adjourned into Executive
Session at 8:35 p.m. At 9:03 p.m., Mayor Wilhite announced Council out of Executive Session. It was
moved by Councilmember Munson, seconded and unanimously agreed to adjourn. The meeting adjourned
at 9:04 p.m.
b -t_o.,,__Jd tUAADQ--
ATTES Diana Wilhite, Mayor
ristine Bainbridge; City Clerk
Council Regular Meeting: 11 -27 -07 Page 7 of 7
Approved by Council: 12 -11 -07