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ALT-2014-0003 decision on reconsideration CITY OF SPOKANE VALLEY HEARING EXAMINER RE: Alteration to the Final Plat of Shelley Lake ) Fourth Addition, in the R-3 Zoning District; ) ) DECISION ON File No. ALT-2014-0003 ) RECONSIDERATION Applicant/Petitioner: Shelley Lake Estates HOA ) ) I. FINDINGS AND CONCLUSIONS 1. On September 4, 2014, the Hearing Examiner issued a decision in the above-entitled matter; approving the application for the plat alteration, subject to various conditions. 2. On September 17, 2014, the applicant, through attorney Matthew Albrecht, submitted a timely Petition for Reconsideration of the decision, and mailed a copy thereof to parties of record; pursuant to Section J of the Hearing Examiner Rules, adopted under Appendix B of the SVMC. 3. On September 19, 2014, the Hearing Examiner mailed a letter to the parties of record, and emailed a copy thereof to those parties of record with email addresses listed in the file. The letter provided some comment on the petition; and gave parties of record 10 days to respond to the petition and the Examiner's letter, in accordance with Section J.4.c of the Hearing Examiner Rules. 4. The Hearing Examiner received written responses from Delores Helgeson, Sam and Donna Jacot, Barbara Epler/Jon Frank, Steve and Sue Watilo, Norene Green, Dan Pfeiffer, Diana Wilhite and Bob Harris; all of which were timely submitted and made part of the record. The record on the petition was closed at 4:30 p.m. on September 29, 2014. 5. The petition for reconsideration requested the Hearing Examiner to issue a revised decision that deletes Finding of Fact#76, Conclusion of Law#s 3-4, and Conditions of Approval#2-3; or in the alternative, replace such findings, conclusions and conditions with appropriate revised findings and conclusions, and conditions requiring only that future development or use of Tract "D" be required to show compliance with SVMC 19.50.060. 6. The petition contended as follows, in pertinent part: (a)The Hearing Examiner exceeded his jurisdiction by ruling on a hypothetical specific project that was not before the Examiner, and ruling on a planning matter reserved to the City Community Development Department Director; erroneously applying open space development requirements when no subdivision or specific project was proposed; and implying that the Shelley Lake Development would not satisfy the open space requirements without the dedication of additional land, if the contemplated maintenance building was developed on Tract"D". (b) The plat alteration application was not subject to City development standards adopted after Shelley Lake Fourth Addition was approved as a final plat and PUD by Spokane County, in 2003; and should be judged by the same standard that was in place when the PUD was approved. HE Findings, Conclusions and Decision File No. ALT-2014-0003 Page 1 (c)The HOA did not intend the approval of any specific project to be part of the application. (d) Based on the Declaration of Robert Harris, attached to the petition, the HOA never voted to approve any specific project for Tract D, except to remove the drainage easement; the HOA has authority to alter a plat to remove restrictions;the HOA does not have the authority to alter the plat by adding restrictions that would substantially impact members' future use or enjoyment of common areas, without a two-thirds (2/3) majority vote of the membership; the Shelley Lake developments already include at least 30% open space, as currently required for PRDs under SVMC 19.50.060, with or without Tract "D" being included as "new" open space; and the HOA should be allowed the opportunity to demonstrate to its members that any project the HOA decides to pursue on Tract "D" complies with the open space requirements "as they exist at that time", as opposed to the Hearing Examiner dedicating Tract"D" in advance to open space. (e) The Hearing Examiner only has authority over plat alterations under RCW 58.17.215 and SVMC Chapter 20.60 to determine whether the public use and interest will be served by the plat alteration, and approve or reject the application; the Examiner has no authority to add new conditions of approval to the alteration; the Examiner at most has authority to require that subsequent uses comply with the zoning and other development regulations in the SVMC; and the "new"dedication of Tract"D" as open space is not necessary to show that the altered plat complies with applicable law. (f) Per the response submitted by Bob Harris for the HOA in his letter to the Hearing Examiner dated September 29, 2014,there is nothing in the HOA documents requiring or providing that Tract "D" would be preserved as "open space", the plat dedication does not prohibit the construction of any buildings on the tract as long as the building conforms with the dedication of the tract for drainage purposes and as a drainage easement, and all necessary conditions to ensure that Tract"D" is used as common area for the use and benefit of all owners of lots in the project are already in place per the CC &Rs and the face of the plat. 7. The parties of record responding to the petition for reconsideration, other than Bob Harris, expressed support for the Hearing Examiner's decision and requested that the petition be denied; did not oppose the continued use of Tract"D" as a gathering place for HOA functions, subject to at least one objection to developing an "events" building on the tract; and contended that the HOA board had approved the use of Tract"D" for the construction of a maintenance building. 8. SVMC 20.60.010 subjects plat alteration applications to "...the requirements in Chapters 20.30 and 20.40 SVMC." SVMC Chapters 20.30 and SVMC 20.40, in pertinent part, regulate the processing of preliminary plat applications and time extensions; and the submittal, required contents for and the administrative approval of a final plat. 9. The reference to SVMC Chapters 20.30 and SVMC 20.40 in SVMC 20.60.010 appears to be intended to ensure that the alteration to the final plat is in the proper form; but also recognizes the preliminary and final review and approval process that culminated in the approval and recording of the initial final plat. 10. The Hearing Examiner's authority over plat alterations logically involves consideration of the requirements for preliminary and final plat approval set forth in SVMC Chapters 20.20, and RCW 58.17.110, and imposing conditions of approval to ensure such compliance. See SVMC 18.20.030. This includes the plat alteration making appropriate and adequate provision for various HE Findings, Conclusions and Decision File No. ALT-2014-0003 Page 2 factors such as roads, the disposal of sanitary waste, drainage, parks, sidewalks for children who must walk to school, etc., as applicable; and for the public health, safety and welfare. This also includes compliance with applicable zoning, environmental provisions and other development regulations set forth in the SVMC; and SEPA. For example, a plat alteration that impacts a critical area, impairs drainage or creates a traffic hazard may have to be conditioned by the Hearing Examiner and provide mitigation to allow its approval. Further, the condition of approval imposed by the Hearing Examiner requiring the applicant to obtain an extinguishment of the drainage easement dedicated to the City, as required by RCW 64.04.175, was not objected to in the petition for reconsideration. 11. The application for a plat alteration did more than simply request removal of the drainage easement and drainage language encumbering Tract "D"; it also requested that the tract be classified as "common area" for the benefit and enjoyment of the members of the HOA, and went on to discuss potential use of the site for community events, a play area for children, and a maintenance building. The request to have Tract "D" declared as "common area" was obviously intended to bring Tract "D" under the HOA provisions regulating "common areas", and the authority of the HOA's board. 12. The former PUD Overlay zone was in effect when the final plat and final PUD site plan were approved by the City in 2003, but was repealed in 2007 and replaced with the PRD provisions in SVMC Chapter 19.50. The PUD Overlay zone did not provide a mechanism for altering a final PUD site plan, so the only apparent way to modify a final PUD site plan would have been through the plat alteration process. 13. Since there is no longer a PUD Overlay zone, and the applicant did not apply for a PRD under the SVMC, the plat alteration must look to the final plat map and dedication for compliance, the current zoning of the site, and application of other pertinent development regulations. 14. Tract "D" had the status of common open space, a type of common area, under the PUD Overlay zone. The final plat dedication for Shelley Lake Fourth Addition dedicated Tract "D" to the HOA; and as such the tract represents a common area reserved for the HOA membership, regardless of its status as "common area"under the CC &R's and other HOA documents. 15. There was no need for the Hearing Examiner to have Tract "D" designated as "common area", in removing the drainage encumbrances from the tract; and it was not appropriate for the Examiner to require the tract to be designated as "common open space", considering the PUD Overlay zone has been repealed and a PRD under SVMC Chapter 19.50 has not been applied for. 16. The Hearing Examiner is vested with the authority under SVMC Chapter 19.50 to hear and decide an application for a PRD, with input provided by the Community Development Department Director regarding the type of open space required. The Director has authority to approve building permits issued for the PRD, and authorize minor modifications to a PRD. 17. The Declaration by Bob Harris, and the letter dated September 29, 2014, establishes that approximately 28.91 acres of the 110.86 acres in the Shelley Lakes final plats (combined), or 27% were dedicated as common open space tracts under the former PUD Overlay zone; and that an HE Findings, Conclusions and Decision File No. ALT-2014-0003 Page 3 additional 6.01 acres, or 5.4%, were burdened with drainage or recreational easements but were not reserved in separate common open space tracts (as required in PUDs). There is no showing how much of the 34.92 acres of common open tracts and dedicated easements in the Shelley Lake developments would meet the requirements for and limitations on land dedicated for open space in a PRD; including requirements that 15-50% of the open space be suitable for active recreational pursuits, and certain limitations on the use of drainage easements for open space. 18. Development of a maintenance building and/or recreational improvements on Tract "D", as contemplated by the HOA, once the drainage easement and restrictions on such tract are removed, must comply with applicable zoning and other development regulations. 19. The petition for reconsideration should be approved; subject to the additional deletion of the second sentence of Finding of Fact #75, which finds that the PRD provisions of the SVMC provide the best measure for determining that the plat alteration serves the public use and interest; and subject to a condition that requires the development and use of Tract "B" to comply with the provisions of the R-3 zoning district, the other provisions of the UDC (Uniform Development Code) portion of the SVMC, and other applicable development regulations. 20. Section J.4.b of the Hearing Examiner Rules requires the Hearing Examiner to issue a revised decision in accordance with SVMC 17.80.130, if the Examiner grants the petition for reconsideration. IV. DECISION Based on the Findings and Conclusions, the petition for reconsideration is approved, subject to the additional deletion of the second sentence of Finding of Fact#75, which finds that the PRD provisions of the SVMC provide the best measure for determining that the plat alteration serves the public use and interest; and subject to a condition that requires the development and use of Tract "B" to comply with the R-3 zoning district, the other provisions of the UDC (Uniform Development Code)portion of the SVMC, and other applicable development regulations. A revised decision on the plat alteration application will be issued in accordance with this decision on reconsideration,with a new appeal period. On October 3, 2014, a copy of this decision on reconsideration will be mailed to the parties of record with email addresses. On October 6, 2014, a copy of the revised decision on the plat alteration application, and of this decision,will be mailed to parties of record. DATED this 3rd day of October, 2014 SPOKANE VALLEY HEARING EXAMINER 1 - a P /. Michae C. Dempsey, WSBA#8235 V 1. HE Findings, Conclusions and Decision File No. ALT-2014-0003 Page 4