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
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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.
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