ALT-2014-0003 Findings and Decision CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Alteration to the Final Plat of Shelley Lake )
Fourth Addition, in the R-3 Zoning District; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
File No. ALT-2014-0003 ) AND DECISION
Applicant: Shelley Lake Estates HOA )
)
I. SUMMARY OF DECISION
Hearing Matter: Alteration to the final plat of Shelley Lake Fourth Addition, in the R-3 zoning
district; to delete a drainage easement from Tract "D" of the final plat, and designate the tract as
"common area" for the benefit and enjoyment of the Shelley Lake Estates Homeowner's
Association.
Summary of Decision: Approve application to delete the drainage easement from Tract "D", and
designate the tract as common area, on the final plat dedication; subject to the City taking action to
extinguish the portion of the drainage easement dedicated to the City, and limiting future use of
Tract"D"to the open space uses permitted under SVMC 19.50.060.
II. FINDINGS OF FACT
Procedural Matters:
1. On March 17, 2014, the Shelley Lake Estates Homeowner's Association, through its
president Robert Harris, submitted a complete application for alteration of the final plat of Shelley
Lake Fourth Addition; to delete a drainage easement encumbering Tract "D" in the final plat, and
to designate the tract as "common area"for the benefit and enjoyment of the HOA members.
2. Tract "D" of the final plat is situated at the southwest corner of the intersection of 9th Lane
and Shelley Lake Lane, in Spokane Valley, Washington; and is currently referenced as County
Assessor's tax parcel no. 45244.3108.
3. The applicant and owner of Tract "D" is the Shelley Lake Estates Homeowner's Association
("HOA"); with a mailing address of c/o Bob Harris, 855 S. Shelley Lake Lane, Spokane Valley,
WA 99037.
4. On March 25, 2014, the City Community Development Department ("Department") issued a
determination of completeness for the plat alteration application.
5. On March 27, 2014, the Department issued a notice of application for the proposal, and
mailed a copy of the notice to the owners of property lying adjacent to or within 400 feet of Tract
"D". The notice described the application as a request to alter the final plat by reclassifying the
Tract"D" drainage easement as a"common area".
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6. On March 28, 2014, the Department had notice of the application published in the Spokane
Valley Herald, the City's legal newspaper and a newspaper of general circulation in the area.
7. Between April 2, 2014 and April 10, 2014, the Department received timely written requests
for a hearing on the application from homeowners Sam Jacot; Marty Moses, Jr.; Steve and Sue
Watilo; and Norene Green. See Section 20.60.020 of the Spokane Valley Municipal Code
(SVMC), and RCW 58.17.215.
8. On May 14, 2014, the Department mailed notice of a public hearing to be held on the
application on May 29, 2014 to the owners of property located within 400 feet of Tract "D". On
May 6, 2014, Robert Harris posted notice of the hearing on Tract "D". On May 9, 2014 and May
16, 2014, the Department had notice of the hearing published in the Spokane Valley Herald.
9. The mailed notice of hearing described the application as an alteration to the final plat map,
to eliminate Tract"D" as a"drainage easement/facility" and designate it as a"common area".
10. The notice of hearing requirements for the application set forth in the SVMC were met by the
Department and the applicant.
11. On May 29, 2014, the Hearing Examiner conducted a public hearing on the application. The
Examiner conducted a site visit on May 28, 2014.
12. The following persons testified at the public hearing, under an oath administered by the
Hearing Examiner:
Martin Palaniuk, Planner Lori Barlow, Planner
City Community Development Department Spokane Valley Public Works Dept.
11707 E. Sprague Avenue, Suite 106 11707 E. Sprague Avenue, Suite 106
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Robert Harris Dan Pfeiffer
855 S. Shelley Lake Lane 16515 E. 9th Lane
Spokane Valley, WA 99037 Spokane Valley, WA 99037
Delores Helgeson Barbara Epler
16513 E. 9th Lane 16506 E. 9th Lane
Spokane Valley, WA 99037 Spokane Valley, WA 99037
Sam Jacot Diana Wilhite
907 S. Shelley Lake Lane P.O. Box 14932
Spokane Valley, WA 99037 Spokane Valley, WA 99214
13. The Hearing Examiner heard the application pursuant to Chapters 17.80, 18.20 and 20.60 of
the SVMC; and Appendix B (Hearing Examiner Scheduling Rules and Rules of Conduct) of the
Uniform Development Code (UDC)portion of the SVMC (i.e. SVMC Titles 17-24).
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14. The following exhibits were admitted into the record at the public hearing:
Exhibit 1: Vicinity Map
Exhibit 2: Shelley Lake PUD 4th and 5th Addition Final Plat Map
Exhibit 3: Plat Alteration Submittal
Exhibit 4: Determination of Completeness
Exhibit 5: Notice of Application
Exhibit 6: Notice of Public Hearing
Exhibit 7: Agency Comments
Exhibit 8: Public Comments
Exhibit 9: Power Point Presentation
Exhibit 10: Declaration of Daniel E. Pfeiffer, dated 5-29-14
Exhibit 11: Petition entitled"Shelley Lake Residents Who Want to Preserve Existing
Open Space Within Our Neighborhood"
15. Exhibits 1-8 are attachments to the Staff Report, prepared by the Department before the
public hearing. Exhibits 9-11 were submitted at the hearing. Exhibit 9 was submitted by the
Department, Exhibit 10 by Dan Pfeiffer, and Exhibit 11 by Barbara Epler.
16. The Hearing Examiner takes notice of the SVMC, the City Comprehensive Plan, other
applicable development regulations, former versions of the SVMC, former versions of the Spokane
Zoning Code, and prior land use decisions for the site and in the vicinity.
17. The record includes the testimony and documents submitted at the public hearing, the
documents in the application file at the time of the public hearing, and the items taken notice of by
the Hearing Examiner.
Proposed Use of Tract"D"by HOA under Plat Alteration:
18. The summary submitted by Bob Harris with the application advised that the intent of the
HOA's request was to foster, promote and enhance the sense of community for all members of the
HOA; by providing a handicap accessible area for community events, including a summer
barbecue, ice cream social, "neighborhood night out", outdoor movies, and a play area for
children. The summary advised that:
(a)Tract"A" in Shelley Lake Third Addition is the only small, level common area tract in the Shelley
Lake Additions that could be made available by the HOA for community events; but such tract
receives direct sunshine on hot summer evenings until sunset, and is not suitable for most
homeowners and children.
(b)The small amount of stormwater that could be handled by Tract"D" in the Shelley Lake project is
conveyed by drain pipes to Tract"B". Tract"B" has a large "208" drainage swale that is capable of
holding several hundred feet of stormwater; percolates well; and never has more than small amounts
of drainage stored in it,which quickly dissipate.
(c) Tract "D" is potentially only one of two (2) sites that could, subject to homeowner preference,
accommodate a small maintenance building(less than 200 square feet in size)to hold equipment and
supplies to service HOA assets. Such assets include 9,000 feet of fence, four (4) vehicle gates,
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numerous swales, extensive landscaping, shoreline along the lake, and 10 irrigation systems with
approximately 75 circuits and 450 heads.
(d) Any use of Tract "D" approved by the HOA would comply with pertinent City zoning
regulations.
Description and History of Tract"D":
19. Tract "D" is approximately 5,935 square feet in size, irregular in shape, and relatively flat in
topography. The tract is planted in grass, and contains a few small deciduous trees. The tract is
fenced along its south boundary, together with the adjacent lot owned by Dan Pfeiffer to the west.
See photos in appendix A-C of Exhibit 10.
20. Tract"D" is located in the southeast corner of the final plat of Shelley Lake Fourth Addition,
which plat was recorded with the Spokane County Auditor on September 18, 2013.
21. The final plat map for Shelley Lake Fourth Addition illustrates a triangular-shaped sight-
distance easement in the northeast corner of Tract "D", and a large drainage easement located on
land abutting Tract"D"to the east.
22. The final plat dedication, in pertinent part:
(a) Granted the City of Spokane Valley ("City") a sight distance easement in Tract "D", for
maintenance of a"clear view triangle".
(b) Dedicated Tract "D"to the HOA, and granted a drainage easement in such tract to the HOA and
the City for the purpose of conveying and storing stormwater runoff; and for installing, operating and
maintaining drainage ponds and drainage facilities to dispose of and treat stormwater runoff.
(c) Granted the City a "drainage" easement, and access rights, in Tract "D" for inspection and
emergency maintenance of stormwater facilities in such tract; if the facilities are not properly
maintained by the HOA or the property owners in the plat.
(d) Made the drainage easement in Tract "D" "...subject to the separate declaration of covenant as
recorded March 18, 2003 under Auditor's File No. 4862514 which by reference is made a part
hereof"
(e)Required the HOA, or its successors in interest, to maintain any drainage facilities in Tract"D" in
conformance with the approved plans on file at the City Engineer's Office; described such
maintenance responsibilities in detail; made the HOA responsible for the payment of all claims and
other liabilities which may become due for such responsibilities; and if such responsibilities are not
met, granted the City Engineer the right to give notice of such failure to the HOA or its successor, and
have the City correct the maintenance failure at the expense of the HOA or its successor.
(f)Made all the owners of lots within the final plat members of the HOA, as created in 1996, subject
to the articles of incorporation and bylaws of the HOA; and subject to the declaration of protective
covenants ("CC &Rs") for the HOA, as recorded with the County Auditor under AFN#4063118 and
made a part of the dedication by reference.
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(g) Prohibited the sale or transfer of Tracts "A", "B", "D" and `B"; designated such tracts as
"subservient estates" for tax purposes to the lots in the final plat, for tax purposes; and provided that
in the event the HOA was terminated for any reason,the successors in interest in such tracts would be
the individual lot owners, or their successors,who were members of the HOA at the time.
23. Tract "D" has not been used to convey, store or treat stormwater in the final plat; and no
drainage facilities have been constructed on the tract. Tract "D" is not required by the City for
drainage collection, conveyance, storage or treatment. See email dated 5-21-14 from Art Jenkins,
Stormwater Engineer for Spokane Valley, to Martin Palaniuk; letter dated 10-31-13 from Scott
Kuhta of Department; and letter dated 12-27-13 from Matthew Albrecht.
24. On June 13, 2013, the HOA's board (comprised of 7 directors) selected Tract "D" as the
preferred site for a maintenance building; and authorized construction of a foundation for the
building on the tract, subject to a homeowner's preference vote on the preferred site for the
building. On September 19, 2013, the HOA's board approved spending up to $20,000 to construct
the building. See p. 6 of Exhibit 10.
25. On October 31, 2013, the Department advised the HOA that use of Tract D for a storage shed
was inconsistent with the City's drainage easement in Tract "D", and a plat alteration would be
required to use the tract for purposes other than stormwater management. See p. 6-7, and appendix
G, of Exhibit 10.
26. On November 14, 2013, the HOA's board adopted a motion authorizing the submittal of a
final plat alteration to change the designation of Tract"D"from a drainage area, including removal
of the City's drainage easement, to a "(recreational) common area"; subject to consultation with
legal counsel on whether the board could submit the application, or a petition signed by the
homeowners in the HOA was required. The motion required homeowners to be notified of the plat
alteration application process; and given information on potential future uses of Tract "D",
including the maintenance building. The motion was approved by a 5-1 vote; with one (1)
abstention. See copy of the minutes from the November 14, 2013 meeting of the HOA, attached to
application.
27. On December 27, 2013, Matthew Albrecht, legal counsel for the HOA, directed a letter to the
HOA board in which he concluded that the HOA, acting through its board, could proceed with the
proposed plat alteration. See copy of letter attached to application.
28. During the summer of 2014, the HOA Board selected Tract "D" as the preferred site of the
proposed maintenance building; by a 5-1 vote, with one (1) abstention. See testimony of Bob
Harris.
Land Use Designations in Area,History of Shelley Lake Fourth Addition:
29. The site, and neighboring land, are designated in the Low Density Residential category of the
Comprehensive Plan, and zoned in the Single-Family Residential (R-3) district. Neighboring land
generally consists of single-family dwellings developed at urban densities.
30. In January 1995, Spokane County approved the preliminary plat/PUD of Shelley Lake, to
divide approximately 124 acres of land located along or near Shelley Lake, east of Rotchford
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Drive and south of Fourth Avenue, into 243 lots for single-family dwellings, on 57 acres zoned
UR-3.5 or SR-1 under the County Zoning Code; 200 multi-family dwelling units, on 14.4 acres
rezoned to the UR-12 zone; and 53 acres of"common open space", divided into various tracts,
including stormwater tracts. This included the approval of a Planned Unit Development (PUD)
Overlay zone, including the approval of bonus density for that portion of the preliminary plat
zoned UR-3.5 and SR-1; and a rezone of 14.4 acres of land, from the UR-3.5 zone to the UR-12
zone. See Spokane County Resolution No. 95-0014, adopting Board of County Commissioners'
decision in File No. PE-1750-94/PUDE-4-94/ZE-34-94; and Hearing Examiner decision dated 12-
29-05 in File No. REZ-09-05/SUB-08-09.
31. Between 1997 and 2003, five (5) phases of the Shelley Lake preliminary plat/PUD received
final plat approval, for the division of 62 acres into 198 lots. The first four (4) phases were
approved by Spokane County,prior to incorporation of the City in March 2003.
32. In March 2003, the City was incorporated. On September 18, 2013, the fifth phase of the
preliminary plat/PUD was finalized and recorded as Shelley Lake Fourth Addition.
33. The preliminary plat of Shelley Lake PUD was approved by the County in 1995 under
Chapter 14.704 (Planned Unit Development Overlay zone) of the County Zoning Code, which
zoning code was adopted by reference by the City when it incorporated in March 2003. The final
plat of Shelley Lake Fourth Addition was approved in September 2003 under the provisions of
such code, as adopted by the City.
34. Chapter 14.704 (PUD Overlay zone)provided as follows, in pertinent part:
(a) Section 14.704.385 required a minimum of 10% of the PUD area to be reserved as common open
space,for the purposes set forth in the PUD site development plan.
(b) Section 14.704.390 required the open space, pedestrian and vehicular facilities, and other
amenities to be an integral part of the landscape, with particular attention given to the retention of
natural landscape features of the site; and required recreational areas, both active and passive, to be
generally dispersed throughout the development and easily accessible from all dwelling units.
(c) Sections 14.704.120 through 14.704.160 made the approval of a PUD Overlay zone subject to a
public hearing before the Hearing Examiner, through review and approval of a preliminary site
development plan; with the approval of a final PUD site development plan being made subject to the
administrative approval of the County Building and Planning Department, unless major adjustments
were made to the plan. The PUD preliminary site plan was required to be submitted with a
preliminary plat application, if applicable, for simultaneous review at the public hearing.
(d) Section 14.704.140 required the preliminary site development plan to illustrate all proposed
improvements to be constructed in the PUD and their precise locations and building heights,
recreational facilities, and other structures.
(e) Section 14.704.220 provided that all accessory uses, buildings and structures ordinarily
appurtenant to any of the permitted uses in the PUD were allowed in the PUD Overlay zone.
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35. Shelley Lake Fourth Addition includes 40 lots for single-family dwellings; three "common
open space" tracts dedicated and reserved for drainage purposes, i.e. Tracts "A", "B" and "D".
The plat also included Tract "E", a common area tract reserved for the private roads in the plat;
which was dedicated to the HOA, but was not "common open space" under the PUD Overlay
zone.
36. The record does not include a copy of the final PUD site development plan approved for the
preliminary plat/PUD of Shelley Lake, which final plan was required to be submitted and approved
administratively before the expiration of the preliminary PUD site development plan. In
December 2004, the preliminary plat/PUD of Shelley Lake expired.
37. On December 29, 2005, the Hearing Examiner approved the preliminary plat of Shelley Lake
Fifth Addition, to allow 46.48 acres of land lying south and southeast of Shelley Lake Fourth
Addition to be divided into 59 lots for single-family dwellings, and four (4) common open space
tracts; and a zone reclassification of approximately 3.5 acres of the preliminary plat area, from the
UR-3.5 zone to the UR-7* zone of the now expired City Zoning Ordinance. This did not include a
request for a PUD Overlay zone. See decision in File No. REZ-09-05/SUB-08-05.
38. The final plat of Shelley Lake Fifth Addition continued the extension of Shelley Lake Lane, a
private road, along the east edge of Tract "D" in Shelley Lake Fourth Addition, south of 9th Lane;
platted several lots lying east of Tract"D" and Shelley Lake Lane; and extended an approximately
150-foot long and 20-foot wide drainage easement from the east side of Shelley Lake Lane,
opposite Tract "D", easterly to a 1.33-acre stormwater tract (Tract "B") platted in Shelley Lake
Fifth Addition. See County Assessor's map for the S '/2 of Section 4 in application file; and
attachment to Department power point presentation, on p. 9-12 of Exhibit 9.
39. Tract "B" in Shelley Lake Fifth Addition is used to dispose of and treat stormwater from
Shelley Lake Lane.
40. SVMC Chapter 19.50 (Planned Residential Developments) was adopted in 2007, under City
Ordinance No. 07-015; and completely superseded and replaced the former PUD Overlay zone.
Comments on Application submitted by Homeowners in Shelley Lake Fourth Addition:
41. Dan Pfeiffer submitted a detailed statement at the hearing in opposition to the application,
which included several attachments and was admitted into the record as Exhibit 10. Pfeiffer also
testified at the hearing. Such statement and testimony included the following information and
assertions:
(a) He resides on the 11,000-square foot lot that borders the west side of Tract "D" for 104 feet, has
resided on such lot for 7.5 years, is a member of the HOA's board of directors, is the director from
"Zone 6" of the Shelley Lake development that includes Tract "D", and did not vote in favor of the
motion passed by the HOA's board to alter the plat.
(b) The application was not"complete", because it did not include the signatures of the requisite lot
owners under RCW 58.17.215 and Section 20.60.010 of the SVMC.
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(c) The HOA's board was not authorized to proceed with the plat alteration; because it did not have
the written approval of a two-thirds (2/3) majority of lot owners in the HOA, as required by Article
3.1(c)of the CC&Rs.
(d) The application was not categorically exempt from SEPA review by the Department (under
Chapter 21.20 of the SVMC); because it would remove "open space" from the final plat, and allow
the development of a maintenance building on Tract"B"at a cost up to$20,000.
(e) A maintenance building cannot be constructed on Tract "D", because Section 19.50.060 (in
subsection D) of the SVMC provides that land (in a Planned Residential Development) required for
"open space"cannot include an accessory building.
(f) The HOA has more important priorities for spending its limited reserves than construction of a
maintenance building on Tract"D".
(g) Approval of the application would violate his reasonable expectations at the time he and his wife
purchased their lot and home, of residing next to open space in Tract "D"; the approval of the
application would be a taking of his property rights; and the City and the HOA are estopped from
proceeding with the plat alteration.
(h) Approval of the application would create issues over parking, safety, nuisance, trespassing,
property values, preserving open space and basic fairness; which concerns are shared by the
neighbors who signed a petition in opposition to the application, including over 90% (i.e. the owners
of 22 of 24 developed lots)of the residents in"Zone 6"of the "Shelley Lake PUD".
(i) There are 36 lots in Zone 6, many of which have not been developed; some of the homes on
developed lots are currently being rented; and none of the homeowners in Zone 6 he had talked to
supported the application.
42. A total of 32 homeowners in the "Shelley Lake PUD" signed a petition in opposition to the
application. The petition contended that the drainage easement encumbering Tract"D" ensures the
preservation of such tract as open space, and that removal of the easement will have a substantial
adverse effect on the owners' collective enjoyment of the existing open space in Tract "D". See
Exhibit 11.
43. Neighboring property owners, in written comments submitted before the hearing, and during
testimony at the hearing, expressed concerns regarding potential impacts from removing the
drainage easement on Tract"D", and from allowing recreational activities and the construction of a
maintenance building on such tract. This included increased traffic along the narrow private roads
of 9th Lane and Shelley Lake Lane, the increased narrowing of the roads during winter conditions,
traffic safety for children playing in area, inadequate parking due to narrow roads, the prohibition
of parking along some roads in development due to their narrowness and fire lane status, the
potential storage of hazardous fuel inside an unoccupied maintenance building, no evidence that a
majority of members of the HOA support the application and/or installation of an equipment shed
on the tract, lack of details regarding the maintenance building, the filling in of the swale on Tract
"D" years ago without permission, the availability of other locations to use for the maintenance
building and recreation activities, adverse impacts on property values, no need for the proposed
maintenance building and recreational activities, the lack of needed shade provided by
maintenance building, and other concerns.
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44. At the hearing, Bob Harris on behalf of the HOA advised that a maintenance building was
one potential use of Tract "D", the HOA board had selected Tract "D" as the preferred site for the
maintenance building earlier in the summer in 2014, Tract "D" would be desirable for holding
community events regardless of the construction of the maintenance building, the roads adjoining
Tract "D" meet City requirements for parking and are not posted as fire lanes, the maintenance
building if constructed would resemble a small house and not a shed, the maintenance building
would have fiber cement siding and not be an eyesore, and the maintenance building would need to
be accessible year-round.
Consistency of Application with Approval Criteria:
45. Pursuant to SVMC 20.60.010 and RCW 58.17.215, the plat alteration application must
contain the signatures of the majority of those persons having an ownership interest in Tract "D";
and is subject to the preliminary and final subdivision requirements in SVMC Chapters 20.30 and
20.40, as applicable.
46. Pursuant to SVMC 20.60.020, alterations to final plats may be approved if it is determined
that the"public use and interest"will be served by the application.
47. The final plat dedication vests ownership of Tract "D" in the HOA, a homeowner's
association formed under Washington statutes and recorded with the Secretary of State for the
State of Washington.
48. Under the dedication, the individual lot owners in the HOA have a reversionary interest in
Tract "D", should the HOA be terminated for any reason; but do not have an "ownership interest".
This is made clear by the CC&Rs applicable to Shelley Lake Fourth Addition, which include Tract
"D" in its definition of"common area", and provide that no lot within the development includes
any portion of any common area. Seep. 1-2 of letter dated 12-27-13 from Matthew Albrecht.
49. RCW 64.38.020 sets forth the powers of a homeowner's association, which the association
may exercise unless otherwise provided in the association's "governing documents". This includes
the power to regulate the use, maintenance, repair, replacement, and modification of "common
areas"; cause additional improvements to be made as part of the common areas; and grant
easements and other specified rights over the common area.
50. RCW 64.38.010 defines "governing documents" as the articles of incorporation, plat,
CC&Rs, bylaws, rules and regulations of the association, and other written instrument by which
the association has the authority to exercise its powers under RCW Chapter 64.38.020; or manage,
maintain, or otherwise affect the property under its jurisdiction. Such statute defines "common
area" as "...property owned, or otherwise maintained, repaired or administered by the
association."
51. Under the CC&Rs for the HOA, the HOA, through its board, has the powers listed in its
governing documents. To the extent there is conflict in such documents, the CC&Rs, plat map and
bylaws have priority in descending order; with RCW 64.38.010 providing the HOA with additional
powers to the extent they are not in conflict with the governing documents.
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52. The CC&Rs identify Tract "D" as "common area", which is described as all land in the
overall Shelley Lake project to be used for landscaping, drainage, recreation, and/or flood control
for the benefit of such developments; and all areas shown on the dedication of a final plat for any
phase of the project that is established as a "common area" and to be utilized for the benefit of the
membership in the project.
53. The CC&Rs grant broad discretion to the HOA's board to regulate the use of the "common
areas"; with the intent to enhance the preservation of the common areas for the safety and
convenience of the users thereof, or otherwise promote the best interest of the owners and
residents. The bylaws grant the HOA's board authority to buy, sell, lease, acquire or encumber
real or personal property which it deems beneficial or convenient to the HOA; and requires the
board to properly protect, care for, and maintain property of all types that belong to the
corporation. See letter dated 12-27-13 from Matthew Albrecht, and testimony of Martin Palaniuk
and Lori Barlow.
54. The HOA board has the authority to seek a modification of the status of Tract "D" through
the plat alteration. This includes seeking to remove the dedication of easements in such tract to the
City and the HOA for stormwater purposes, considering the tract is not needed for such purpose;
and providing another beneficial use of the tract that it believes will be beneficial or convenient to
the HOA and its members.
55. Paragraph 4.1(c) of the CC&Rs, cited by Dan Pfeiffer, prevents the HOA from transferring
easements and rights of way to public agencies, utilities or other authorities that are not intended to
benefit the Shelley Lake project or would have a substantial adverse effect on the enjoyment of the
"common areas" by the members of the HOA; unless two-thirds (2/3) of the HOA membership
approve in writing. This paragraph does not apply to the HOA board's proposal, through the
current application, to remove a drainage easement and dedication that currently burden Tract"D";
which are encumbrances that unnecessarily encumber the tract.
56. RCW 64.04.175 provides that easements established by a dedication are property rights that
cannot be extinguished or altered without the approval of the easement owner(s), unless the plat or
other document creating the dedicated easement provides for an alternate method or methods to
extinguish or alter the easement.
57. The City's stormwater engineer advised the Department that Tract "D" is not needed for
stormwater management in the final plat or by the City. However, under RCW 35A.11.020 and
35A.13.220, only the City Council appears to have the authority to relinquish the easement in
Tract "D" granted to the City. Accordingly, any approval of the plat alteration that extinguishes
the easement from the final plat dedication and final plat map should be made contingent on
formal action by the City to extinguish the easement. See memo from Art Jenkins dated 5-21-14.
58. The Department, on page 2 of the Staff Report, advised that environmental review of the
application is exempt from SEPA review because environmental review for Shelley Lake Fourth
Addition was completed as part of the approval process for the "Shelley Lake Fourth Addition
preliminary plat". Shelley Lake Fourth Addition was actually finalized from a remaining portion
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of the preliminary plat/PUD of Shelley Lake; which preliminary plat was approved by Spokane
County in 1995, and given time extensions until it expired in December 2004.
59. A plat alteration is subject to SEPA to the extent it involves a decision on a "project action"
that is not exempt from SEPA review. A "project action" involves a decision on a specific project,
such as construction or management activity located in a defined geographic area; including
agency decisions to license, fund or undertake any activity that will directly modify the
environment,whether conducted by the agency, an applicant, or under contract.
60. The intent of the plat alteration is to remove the encumbrance on Tract"D"that limits its use
to stormwater management in the final plat, so that it can be potentially used by the HOA and its
members for construction of a maintenance building and/or community events and a play area for
children.
61. WAC 197-11-800(6) categorically exempts certain "minor land use decisions" from SEPA
review, including variances and short plats (except on lands covered by water). Such exemption
does not include a decision on a"plat alteration".
62. SVMC 21.20.040(B)(4), modifying WAC 197-11-800(1)(c), exempts commercial,
recreational, service or storage buildings up to 30,000 square feet and having up to 90 parking
spaces. The proposed maintenance building clearly would not exceed this threshold, since it is
planned to be less than 200 square feet in size. Tract "D" itself is only 5,935 square feet in size.
See testimony of Lori Barlow, for the Department.
63. Dan Pfeiffer contended that the plat alteration would adversely impact the environment by
removing "open space" in the final plat. Appendix A to the SVMC defines "open space" as
follows:
"Open space: An area accessible to and permanently reserved for the common use and
enjoyment of the occupants of residential uses for landscaping, leisure and recreational
purposes. Open space does not include area devoted to parking, accessory uses,
landscaping required pursuant to this code, drainage easements or building separation
required under adopted building codes."
[Emphasis added]
64. The term "open space" is used in the SVMC only in regards to the requirements for Planned
Residential Developments (PRDs); under the open space standards for PRDs set forth in SVMC
19.50.060, as modified by SCC 19.40.020(E) and 19.35.050(C).
65. SVMC 19.50.060 provides as follows for PRDs, in relevant part:
(a) Requires each PRD to dedicate at least 30% of the gross land area in a PRD for common open
space for the use of its residents, generally requires at least 30% of the open space to be suitable for
active recreation, and requires all common open space to be landscaped in accordance with a plan
submitted by the applicant and approved by the Hearing Examiner.
HE Findings, Conclusions and Decision ALT-2014-0003 Page 11
(b)Provides that land dedicated for open space in PRDs "should" be usable for either greenbelts that
serve as a buffer between land uses, using existing vegetation, or an aesthetic amenity such as active
recreational activities, boulevard trees, or for protecting environmentally sensitive areas such as
wetlands.
(c) Prohibits land required for open space from including "accessory buildings", climate-controlled
improvements, areas reserved for the exclusive use and benefit of an individual tenant or owner,
required landscape or setback areas, dedicated or private streets, parking areas, or loading or storage
areas.
(d) Prohibits land required for open space from including floodplain (100-year), flood-prone areas,
drainage easements, natural drainage areas or creeks "...unless maintained as an amenity and
specifically approved as being suitable for open space.
(e) Authorizes the City to allow the use of stormwater detention ponds as part of dedicated open
space; subject to restrictive criteria that includes ensuring that the pond will drain fully or be
constructed as an aesthetic amenity, the pond is not fenced or otherwise rendered unsuitable for
recreational use during dry weather, and the pond is landscaped in a manner that is both aesthetic and
able to withstand expected inundation.
(f) Requires the area proposed for open space to be dedicated in common to the property owners
within the plat or a homeowner's association, with maintenance and operation of the open space
being the responsibility of such owners or association.
(g) Authorizes the City to accept dedication, maintenance and operation responsibilities when the
common open space is in the public interest and the open space is greater than 10 acres in size,
adjacent to an established or future City park or school grounds, has access to a body of water
exceeding three(3)acres in size, or is an environmentally sensitive area.
(h) Vests the owners of open space with various rights, subject to restrictive covenants or other
restrictions; including the following rights and duties:
1)The right to locate recreational facilities such as tennis courts, swimming pools, picnic tables,
and fireplaces(accessory to picnic tables); designed to be used exclusively for the use of
residents of the development and their guests.
2)The right to locate pedestrian paths,bicycle paths and bridle paths.
3) The right to take whatever measures are reasonably necessary to protect and maintain such
land, or land or property adjacent thereto,or to correct a hazardous condition posing a threat to
life or limb.
4)The right to regulate access to or entry on the open space land.
5) The duty to maintain the open space land.
(i) PRDs are subject to a public hearing before the Hearing Examiner, through review and approval
of a preliminary development plan; and with final approval being subject to the administrative
approval of the Department, unless major adjustments are made to the plan. The PRD preliminary
plan is to be submitted with a preliminary plat application, if applicable; for simultaneous review at
the public hearing.
HE Findings, Conclusions and Decision ALT-2014-0003 Page 12
66. SVMC 19.50.070 vests the Department Director with certain administrative responsibilities
regarding approved PRDs. Such section provides as follows, in pertinent part:
(a) Authorizes the issuance of building permits and other permits required for the construction of the
development of property in the PRD only when, in the opinion of the Department Director, the work
to be performed meets the requirements of the final plan and program elements of the PRD.
(b) Authorizes the Department Director to approve minor adjustments to the dimension or siting of
buildings in the PRD when a building permit is issued; that do not affect the basic character or
arrangement of buildings in the final plan, the density of the development, or open space
requirements; and that do not vary dimensions by more than 10%of the original design.
(c)Major adjustments that the Department Director determines substantially change the basic design,
density, open space or other PRD requirements are subject to review and approval by the Hearing
Examiner after a public hearing; and building permits cannot be issued for such changes until such
approval is made.
67. Department staff testified at the hearing that the primary issue regarding the application was
deletion of the drainage easement from Tract "D"; and expressed uncertainty about reviewing the
future use of Tract "D", as proposed by the HOA's board, under the current standards established
for PRDs in SVMC Chapter 19.50, or the expired standards of the PUD Overlay zone that applied
to the final plat/PUD of Shelley Lake Fourth Addition when it was approved in September 2003.
See testimony of Lori Barlow.
68. The elimination of the drainage easement and stormwater function from Tract "D" would not
have changed the status of the tract as "common open space", under the PUD Overlay zone
provisions that existed in the SVMC at the time Shelley Lake Fourth Addition was approved in
September 2003; but the PUD Overlay zone would have required the use of the common open
space to be identified in the preliminary and final PUD site development plans before they were
approved.
69. If Tract"D"was required open space in a PRD under the SVMC, it could not be dedicated as
a drainage easement unless maintained as an amenity, and specifically approved by the
Department as being suitable for open space (i.e. available for recreational use during dry weather,
landscaped, etc.); and could not be dedicated to the City for stormwater purposes, due to its small
size.
70. The construction of a maintenance building on Tract "D", or use of the tract for recreational
activities or facilities, for the benefit of lot owners in the plat are uses that Tract "D" could have
been set aside for as common open space under the PUD Overlay zone; if identified in the
preliminary site development plan and approved by the hearing body.
71. A maintenance building would not be allowed on Tract "D" if the tract was required open
space in a PRD, under SVMC Chapter 19.50; nor would the building be allowed outside of a PRD
as an "accessory building" in the R-3 zoning district, since the building would not be accessory to
a single-family dwelling or other primary use located on the tract and permitted in the R-3 district.
•
HE Findings, Conclusions and Decision ALT-2014-0003 Page 13
72. Under SVMC 19.50.060(C)(1), Tract "D", minus the drainage easement, could qualify as
"open space" in a PRD if reserved and/or enhanced as a greenbelt that serves as a buffer between
land uses using existing vegetation, developed as an aesthetic amenity such as boulevard trees, or
used for active recreational activities. Similarly, the tract could have been reserved for all such
uses as "common open space" in the now expired PUD Overlay zone.
73. The removal of the drainage easement and drainage function for Tract "D", in the absence.of
any need for the easement and drainage function; the potential construction of an approximately
200-square foot maintenance building on Tract"D", considering the 30,000-square foot exemption
for a maintenance building from SEPA review under the SVMC; and potential use of Tract"D" for
community events and as a play area for children, in the absence of any defined construction
activity constituting a "project action" for such uses on the tract, do not trigger SEPA review for
the plat alteration application.
74. The removal of the drainage easement and drainage function for Tract "D" serves the public
use and interest.
75. The PUD Overlay zone provisions in the SVMC have expired. While the provisions of the
SVMC for a PRD are significantly different than the provisions of the expired PUD Overlay zone
for a PUD, they have the same overall intent and appear to provide the best measure for
determining whether the future use of Tract "D" proposed by the HOA will serve the "public use
and interest".
76. The use of Tract "D" by the HOA should be restricted to the types of"open space" described
in SVMC 19.50.060(C)(1), and exclude the uses prohibited for required open space listed in
SVMC 19.50.060(D). The owners of the open space should have the rights and duties listed in
SVMC 19.50.060(I), subject to restrictive covenants or other restrictions in the "governing
documents" for the HOA.
Based on the above findings of fact,the Hearing Examiner enters the following:
III. CONCLUSIONS OF LAW
1. Any finding of fact above that is a conclusion of law is hereby deemed such.
2. The proposed alteration of the final plat dedication to remove the drainage easement and
delete the HOA's stormwater maintenance responsibilities for Tract "D" serves the public use and
interest; and should be approved, subject to formal action taken by the City Council to extinguish
the drainage easement granted to the City.
3. The final plat dedication should be revised to designate Tract "D" as common area in the
final plat.
4. The final plat dedication should be revised to restrict the use of Tract "D" to the open space
uses described in SVMC 19.50.060(C)(1), and not prohibited by SVMC 19.50.060(D); as selected
by the HOA's board.
HE Findings, Conclusions and Decision ALT-2014-0003 Page 14
5. The approval of the altered plat, conditioned as recommended above, serves the public use
and interest; complies with SVMC Chapters 20.60, 20.30 and 20.40; and complies with RCW
58.17.215,RCW 58.17.218 and RCW 64.04.175.
6. Any conclusion of law above that is a finding of fact is hereby deemed such.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law above, the application for an altered
plat in the above file is hereby approved, subject to the following conditions and requirements:
1. The final plat dedication shall be altered to delete the dedication of a drainage easement, and
related easements, in Tract"D"to the homeowner's association and/or the City of Spokane Valley;
and to delete the responsibilities imposed on the homeowner's association to maintain stormwater
facilities constructed on Tract"D".
2. The fmal plat dedication shall be altered to designate Tract "D" as common area and open
space for the use and benefit of the homeowner's association.
3. The final plat dedication shall be altered to limit the use of Tract "D"to the open space uses
listed in Section 19.50.060(C)(1) of the SVMC and that are not prohibited under Section
19.50.060(D) of the SVMC.
4. The applicant shall provide a revised dedication to be signed by the Director of the City
Community Development Department, and filed with the Spokane County Auditor's Office to
become the lawful dedication for the final plat.
5. Prior to the recording of the revised final plat dedication with the County Auditor, the
applicant shall obtain an extinguishment of the drainage easement dedicated to the City of Spokane
Valley from the appropriate City authority, as required by RCW 64.04.175.
This approval does not waive the applicant's obligation to comply with all other
requirements of other public agencies with jurisdiction over land development.
DA 1'ED this 4th day of September, 2014
SPOKANE VALLEY HEARING EXAMINER
/CAtil
2715—
Michael . Dempsey, WSBA#8 35
HE Findings, Conclusions and Decision ALT-2014-0003 Page 15
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
The decision of the Hearing Examiner on an application for an altered plat is final and
conclusive unless within twenty-one (21) calendar days from the date of issuance of the
Examiner's decision, a party with standing under Chapter 17.90 of the Spokane Valley
Municipal Code (SVMC) and Chapter 36.70C RCW files a land use petition in Superior
Court pursuant to such chapters.
On September 4, 2014, a copy of this decision will be mailed by regular mail to the
applicant, the City Community Development Department, any person who testified at the
hearing or provided substantive written comments on the application during the hearing or
the public comment period on the application and provided a mailing address, and any
person who filed a written request for a copy of the notice of application or the final decision.
Pursuant to RCW Chapter 36.70C, the date of issuance of the Hearing Examiner's
decision on such application is three (3) days after it is mailed, extended to the next business
day when the last day for mailing falls on a weekend or holiday. The date of issuance of the
decision regarding the altered plat will be, accordingly, September 8,2014. This decision will
be become final on September 29,2014, unless appealed as stated above.
Any aggrieved party of record may file a written petition for reconsideration with the
Hearing Examiner within 10 calendar days of the Hearing Examiner's written decision,
which is no later than September 18, 2014; pursuant to Section J of Appendix B (Hearing
Examiner Scheduling Rules and Rules of Conduct) of the SVMC.
The complete record in this matter, including this decision, is on file during the appeal
period with the Office of the Hearing Examiner, Third Floor, Public Works Building, 1026
W. Broadway Avenue, Spokane, Washington, 99260-0245; and may be inspected by
contacting Kristine Chase, Staff Assistant for the Hearing Examiner, at (509) 477-7490. The
file may be inspected during normal working hours, listed as Monday-Friday of each week,
except holidays, between the hours of 8:00 a.m. and 4:30 p.m.
After the appeal period, or if transferred sooner than expiration of the appeal period,
the file may be inspected at the City of Spokane Valley Department of Community
Development-Planning Division, 11707 E. Sprague Avenue, Spokane Valley, WA, 99206; by
contacting Martin Palaniuk at (509) 921-1000. Copies of the documents in the record will be
made available at the cost set by the City of Spokane Valley.
Pursuant to RCW 36.70B.130, affected property owners may request a change in
valuation for property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision ALT-2014-0003 Page 16