REZ-2014-0002 Findings and Decision CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Rezone from the R-3 the t Toning Distric )
i �to the �
R-4 Zoning District; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
File No. REZ-2014-0002 ) AND DECISION
Applicant: Arger Sparta, LLC )
)
I. SUMMARY OF DECISION
Hearing Matter: Application for a rezone from the R-3 zoning district to the R-4 zoning district,
on 1.14 acres of land.
Summary of Decision: The Hearing Examiner issued a decision on November 12, 2013 that
approved a rezone of the site from the R-3 district to the R-4 district, in File No. REZ-2013-0002.
The decision incorrectly described the site as part of a former tax parcel that included the land
making up site and the easterly .49 acres of the land lying directly west of the site, based on a
description error in the staff report submitted in File No. REZ-2013-0002.
Due to an oversight, the 2013 rezone of the site to the R-4 district was not mapped by the City on
its official zoning map. The current decision reaffirms the rezoning of the site to the R-4 district,
to the extent the 2013 rezone of the site to the R-4 district is not recognized by the City.
II. FINDINGS OF FACT
1. The application seeks approval of a site-specific zoning map amendment (rezone) to
reclassify the zoning of a 1.14-acre site from the Single-Family Residential (R-3) district to the
Single-Family Residential Urban (R-4) district, of the Spokane Valley Municipal Code (SVMC).
2. The site is located north of and adjacent to Alki Avenue, approximately 291 feet east of
Evergreen Road and 165 feet west of the intersection of Bannen Road and Alki Avenue; in
Spokane Valley, Washington.
3. The site is currently referenced as County Assessor's tax parcel no. 45143.1348.
4. The applicant, and site owner, is Arger Sparta, LLC; with a mailing address of c/o Gregory
Arger, 300 N. Mullan Road, Suite 204, Spokane Valley, WA 99206.
5. On July 29, 2014, the applicant submitted a complete application for the proposed rezone to
the City of Spokane Valley Community Development Department ("Department").
6. On September 12, 2014, the Department issued a Determination of Nonsignificance (DNS)
for the application, which did not include a specific site plan. The DNS was not appealed.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 1
7. On October 30, 2014, the Hearing Examiner conducted a public hearing on the application.
The notice requirements for the hearing set forth in Section 17.80.120 of the SVMC were met by
the applicant and the Department. The Examiner conducted a site visit on October 29, 2014.
8. The following persons testified under oath at the public hearing:
Micki Harnois Gene Arger and Gregory Arger
City Community Development Department 300 N. Mullan Road
11707 E. Sprague Avenue, Suite 106 Spokane Valley, WA 99206
Spokane Valley, WA 99206
Dave Benker
11211 E. 9th Avenue
Spokane Valley, WA 99206
9. The following exhibits were attached to the Staff Report and Recommendation to the
Hearing Examiner, placed in the application file before the hearing; except for Exhibit 12, which
the Department submitted at the hearing:
Exhibit 1: Vicinity Map
Exhibit 2: Zoning Map
Exhibit 3: Comprehensive Plan Map
Exhibit 4: 2014 Aerial Photo
Exhibit 5: Application Materials
Exhibit 6: Determination of Completeness
Exhibit 7: Notice of Application Materials
Exhibit 8: SEPA Determination
Exhibit 9: SEPA Checklist
Exhibit 10: Notice of Public Hearing Materials
Exhibit 11: Agency Comments
Exhibit 12: Copy of power point presentation for Staff Report and Recommendation
10. The Hearing Examiner heard the application pursuant to Chapters 17.80, 18.20 and 19.30 of
the Spokane Valley Municipal Code (SVMC); and Appendix B (Hearing Examiner Scheduling
Rules and Rules of Conduct) of the SVMC.
11. The Hearing Examiner takes notice of the SVMC, the City Comprehensive Plan, other
applicable development regulations, and prior land use decisions for the site and neighboring land.
12. The record includes the electronic recording of the hearing, Exhibit 12, the documents in the
application file at the time of the public hearing, and the items taken notice of by the Hearing
Examiner.
13. The site is approximately 1.14 acres in size, rectangular in shape, relatively flat in
topography, and unimproved. The property is covered with native or invasive grasses and small
bushes. See Exhibit 4, and p. 2 of Staff Report.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 2
14. A half right of way for Alki Avenue borders all but the westerly 20 feet of the site on the
south, and merges into Alki Avenue to the east. The right of way has an unpaved hammerhead at
its west end, and is paved between such point and the east end of the site. See 2014 aerial map in
Exhibit 4, and County Assessor map for S 1.2 of Section 15 in file.
15. The parcel that lies between the site and Evergreen Road to the west is owned by the
applicant, and improved with a vacant single-family home in its west end. The applicant plans to
develop medical offices (dental) on such parcel, develop the current site for an adult group home if
rezoned to the R-4 district, and provide access to the group home through the extension of a
driveway to Evergreen Road through the parcel developed for offices. See testimonies of Gene
Arger and Greg Arger.
16. After the public hearing, the Hearing Examiner discovered that he had rezoned the site from
the R-3 zoning district to the R-4 zoning district on November 12, 2013, in File No. REZ-2013-
0002, at the request of the applicant; but due to an oversight by the City, the rezone was not shown
on the official zoning map. This included the following relevant course of events:
(a) On July 9, 2013, the City Council for Spokane Valley legislatively reclassified the zoning of the
west 131 feet (.49 acres) of former parcel no. 45143.1328, which consisted of a 1.63-acre parcel that
included the current site of 1.14 acres(parcel no. 45143.1348), and the easterly .49-acres of the parcel
(parcel no. 45143.1347)that currently lies directly west of the site, from the R-3 zoning district to the
GO zoning district. See p. 4 of City Ordinance No. 13-009, for map amendment in File No. CPA-01-
13.
(b) On August 14, 2013, the applicant submitted an application to the Department intending to rezone
the east 310.4 feet of former parcel no. 45143.1327, matching the configuration of the current 1.14-
acre site, from the R-3 district to the R-4 district; in File No REZ-2013-0002.
(c) On August 15, 2013, the Department approved a boundary line adjustment that adjusted the
boundary between former parcel no. 45143.1328 and former parcel no. 45143.1327, to create the
current site of 1.14 acres (parcel no. 45143.1348) and the abutting 1.07-acre parcel (parcel no.
45143.1347)to the west. See City Segregation No. 20130485, completed on 9-13-13.
(d) The Examiner takes notice that on October 15, 2013, the Department prepared a staff report in
File No. REZ-2013-0002; and the body of the staff report failed to recognize the new parcel
configurations created by the August 15, 2013 boundary line adjustment, and erroneously referred to
the rezone site as former "parcel 45143.1328" and as being 1.54 acres in size. However, the maps
included in the staff report recognized the boundary line adjustment, correctly depicted the current
site (parcel no. 45143.1348) of 1.14 acres as the rezone site, and correctly showed the parcel (parcel
no. 45143.1347)to the west as being zoned GO.
(e) On November 5, 2013, the Hearing Examiner issued a decision in File No. REZ-2013-0002 that
erroneously described the rezone site as former"parcel no. 45143.1328", being 1.54 acres in size, and
lying 165 feet east of Evergreen Road from the R-3 district to the R-4 district; and ordered the land
rezoned from the R-3 district to the R-4 district. The rezone decision should have described the
parcel being rezoned as current parcel no. 45143.1348, being 1.14 acres in size, and lying 291 feet
east of Evergreen Road; i.e.the current site.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 3
(f) The City failed to have the City's official zoning map changed to implement the Hearing
Examiner's rezone decision in File No. REZ-2013-0002. The zoning map should have been changed
to designate the 1.14-acre site (parcel no. 45143.1348) in the R-4 district. In so doing, the City could
ignore the purported rezone of any additional portion of former parcel no. 45143.1328 lying west of
the current site boundaries from the R-3 district to the R-4 district by the 2013 decision; since at the
time of the rezone action all the land lying between the site and Evergreen Road to the west was part
of parcel no. 45143.1347, zoned GO, and not part of the rezone action.
(g) The half of right of way for Alki Avenue was revised to reduce the right of way and remove the
half cul-de-sac configuration at the west end, and place a hammerhead configuration at the new west
terminus of the right of way.
(h) The current application, and Staff Report, in File No. REZ-2014-0002 failed to recognize that the
site was already rezoned to the R-4 district by the Hearing Examiner's decision issued on November
5, 2013 in File No. REZ-2013-0002; but correctly acknowledged the GO zoning of the parcel lying
west of the site.
17. The land lying north, south and east of the site is designated in the Low Density Residential
category of the Comprehensive Plan, zoned R-3, and generally consists of single-family homes and
vacant land on lots of various sizes. The two (2) parcels lying between the middle of the site and
Springfield Avenue to the north are improved with duplexes.
18. The neighboring land to the west and southwest, including the land lying along both sides of
Evergreen Road, is designated in the Office category of the Comprehensive Plan, zoned Garden
Office (GO), and consists of a mixture of commercial and residential uses, or vacant land.
19. The parcel lying directly southwest of the site, the parcel lying directly south of such parcel
and abutting Evergreen Road, and the parcel lying directly south of the west portion of the site are
contiguous, undeveloped, and controlled by a limited liability company. See County Assessor's
map and parcel information in file, and Exhibit 4.
20. The large parcel located at the northeast corner of the intersection of Evergreen Road and
Valleyway Avenue, southwest of the site, is developed with offices; as is the large parcel located
along the west side of Evergreen Road, west of the site. Two (2) adjacent parcels zoned R-4 are
found south of the site, between Valleyway Avenue and the parcel lying directly south of the east
end of the site. See County Assessor's map and parcel information in file, Exhibits 2 and 4, parcel
information in file, and Hearing Examiner site visit.
21. The land neighboring the site to the northwest, including land located along both sides of
Springfield Avenue and both sides of Evergreen Road, and the land in proximity to the intersection
of Evergreen Road, are designated in the Community Commercial category of the Comprehensive
Plan, and zoned Community Commercial (C).
22. The large parcel located along the east side of Evergreen Road to the northeast, between
Springfield Avenue and Broadway Avenue, is developed with offices. The land located at the
westerly corners of the intersection of Evergreen Road and Broadway Avenue to the northwest, is
developed with convenience stores associated with gasoline service. See County Assessor's map
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 4
and parcel information in file, Exhibit 4, parcel information in file, and Hearing Examiner site
\reit
23. The land located further to the north along the west side of Evergreen Road, south of Mission
Avenue, is improved with office uses, or assisted living and retirement housing developed by the
applicant. The land located along Evergreen Road in the area is generally in a slow transition from
single-family and other low intensity residential uses to office, multi-family or commercial uses.
See Hearing Examiner decision dated 7-18-12 in File No. REZ-01-12, and Hearing Examiner
decision dated 11-12-13 in File No. REZ-2013-0002.
24. The City Arterial Street Plan designates Evergreen Road as a Principal Arterial, and
Broadway Avenue and Adams Road as Minor Arterials. Broadway Avenue and Adams Road are
improved to a 3-lane section, and Evergreen Road is improved to a 5-lane section. Evergreen
Road provides a route to Interstate 90 and the Spokane Valley Mall north of Mission Avenue.
25. The only public comments on the application were submitted at the hearing by Dave Benker;
on behalf of his father, who owns a .31-acre parcel (45143.1036) lying four (4) parcels east of the
site, along the north side of Alki Avenue. Benker expressed concern that if the site was rezoned to
the R-4 district, it could be developed for multi-family housing or other alternative housing;
development of the site for an adult family home, or multi-family use, could create safety concerns
for neighboring residents; the structure developed on the site could be developed to a height of 35
feet, and/or access Alki Avenue; and higher density housing such as duplexes and multi-family
should not be developed along a local access street like Alki Avenue.
26. Greg Arger testified that the City transportation authorities gave the applicant two (2) options
for access to the site, off Evergreen or off Alki; the applicant preferred to provide access to an
adult family home developed on the site directly to Evergreen through the adjacent land to the
west, to avoid having to make road improvements to Alki Avenue, and provide greater privacy to
the residents of the group home; adult family homes generate little traffic, because the residents
typically do not drive; the home would likely be developed as single-story, to ensure handicapped
access to the elderly residents; and if access to the site was provided off Evergreen Road, the site
would be fenced off from Alki Avenue.
27. The environmental checklist submitted for the proposed rezone by the applicant described the
proposed rezone as a "non-project action". This is an incorrect use of such term, since the State
Environmental Policy Act (SEPA) and the environmental provisions of the SVMC define a
"nonproject action" as an action that involves decisions on policies, plans or programs; and define
a"project action" as a decision on a specific project, such as a construction or management activity
located in a defined geographic area, including a license or approval such as a rezone. See WAC
197-1-760, 197-11-774, 197-11-704, and SVMC 21.20.160.
28. The proposed rezone is more appropriately characterized under SEPA as a quasi-judicial,
private "project action" without a specific site development plan. See Richard L. Settle, The
Washington State Environmental Policy Act(December, 2012), #11.01(2), at p. 11-6 and 11-7, and
#13.01(1), at p. 13-11 and 13-12.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 5
29. The Staff Report sets forth relevant policies of the Comprehensive Plan for the application.
This includes Policy LT TP-1.7, which states that zone changes should be allowed within the Low
Density Residential category of the Comprehensive Plan when specific criteria are met. This may
include substantial changes within the area, the availability of adequate facilities and public
services, and consistency with residential densities in the vicinity of the rezone site.
30. SVMC 19.40.040 and SVMC 19.40.050 describe both the R-3 district and the R-4 district as
low density residential development that is intended to preserve the character of existing
development, subject to the dimensional standards of SVMC Chapter 19.40 that are respectively
established for such districts.
31. The minimum lot size, width and depth in the R-3 district are respectively 7,500 square feet,
65 feet and 90 feet; and are respectively 6,000 square feet, 50 feet and 80 feet in the R-4 district.
The maximum lot coverage in the R-3 district is 50%, and is 55% in the R-4 district. The
minimum setbacks and maximum building height are the same in both districts.
32. The R-3 and R-4 districts each permit single-family and duplex dwellings. The R-4 district
permits multi-family dwellings, townhouse dwellings, and certain institutional-type residential
uses not permitted in the R-3 district.
33. The Staff Report recommended no conditions of approval for the rezone application, because
there was no site development plan submitted with the application for review and approval by the
Hearing Examiner. Conditions submitted by public agencies and City departments would apply to
the site development at the time of building permit.
34. The environmental checklist submitted by the applicant, and the DNS issued by the
Community Development Department, properly addressed the environmental impacts of the
application. The DNS was not appealed.
35. The Staff Report and presentation by City Community Development staff at the public
hearing properly analyzed the consistency of the application with the Comprehensive Plan, and the
rezone criteria set forth in SVMC 19.30.030. This included findings that the R-4 zoning district
implements the Low Density Residential category of the Comprehensive Plan, which applies to the
site and to neighboring land zoned R-3; the site abuts existing and more intensive GO zoning on
the west, and is located near land zoned CC to the northwest; the R-4 zoning district will provide a
buffer between the GO zone and eventual office use developed on the parcel located west of the
site and the single-family neighborhood to the east; existing single-family homes located along
Evergreen zoned GO are transitioning to office uses; an R-4 district is located a short distance
south of the site; the R-4 district is a similar zone to the R-3 district that applies to neighboring
land, except for allowing multi-family uses and a somewhat higher housing density; and the rezone
of the site to the R-4 district will permit uses that are compatible with higher intensity office uses
that exist or will be developed near the site along Evergreen Road. The site also abuts some
existing duplex uses to the north.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 6
36. The concerns raised by Dave Benker regarding the proposed rezone are speculative, and/or
insufficient to provide a basis for denying or specially conditioning the proposed rezone.
37. County Utilities, and Vera Water and Power, respectively certified public sewer and water
concurrency for the application. The rezone application itself is not subject to transportation
concurrency requirements, since it was not submitted with a specific site plan. The proposed
rezone to the R-4 district meets the direct concurrency requirements set forth in SVMC 22.20.
38. SVMC 19.30.030 erroneously states that site-specific zoning map amendments shall be
processed pursuant to SVMC 17.80.140, which section applies to Comprehensive Plan
amendments and area-wide rezones processed through the Planning Commission and City Council.
SVMC 18.20.030(A)(5)(h) expressly vests the Hearing Examiner with authority over site-specific
rezones that are not processed at the same time as an implementing Comprehensive Plan
amendment for the same site, such as the proposed rezone.
39. The proposed rezone is consistent with the Comprehensive Plan; bears a substantial relation
to the public health, safety and welfare; is appropriate for reasonable development of the property;
is adjacent and contiguous to property of a higher zone reclassification; will not be materially
detrimental to uses or property in the immediate vicinity of the site; and has merit and value for the
community as a whole.
40. Washington case law requires the proponent of a rezone to establish, by a preponderance of
the evidence, that the proposed rezone bears a substantial relationship to the public health, safety
or general welfare; and that a substantial change of circumstances has occurred in the area.
However, proof of a substantial change of circumstances is not required if the rezone implements
the comprehensive plan of the local government. The applicant has carried such burden of proof.
41. The proposed rezone is supported by a substantial change of circumstances in the area since
the site was zoned R-3 in 2007, including the recent development of office uses along the
Evergreen Road corridor in the area.
42. The procedural requirements of the State Environmental Policy Act and SVMC Title 21
(Environmental Controls) have been met.
43. The City should recognize the 2013 rezone of the site to the R-4 zoning district, and map the
site in such district on the City's official zoning map.
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 of law is hereby deemed a finding of
fact.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 7
2. The Hearing Examiner's decision in File No. REZ-2013-0002 rezoned the site to the R-4
zoning district. The City should ignore the error in the description of the site in the decision, and
map the site in the R-4 district pursuant to such decision.
3. The proposed rezone to the R-4 district in the current file complies with the rezone criteria
set forth in SVMC 19.30.030; and can be relied upon by the City, under SVMC Chapter 18.20
(Hearing Examiner), to rezone the site if the 2013 rezone is not recognized by the City.
4. 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 a site-
specific amendment to the City Zoning Map, to rezone 1.14 acres of land from the R-3 zoning
district to the R-4 zoning district under the SVMC, without a specific site development plan, is
hereby approved; to the extent that the City does not recognize the 2013 rezone of the site by the
Hearing Examiner to the R-4 zoning district in File No. REZ-2013-0002, and map the site in the R-
4 district pursuant to such action.
This decision applies to the real property currently referenced as County Assessor's tax
parcel no. 45143.1328. The City Zoning Map shall be revised to reflect a R-4 zoning district
designation for the site.
DATED this 2nd day of December, 2014
SPOKANE VALLEY HEARING EXAMINER
AOMich.el C. Dempsey, WSBA# 3 110
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC), the decision
of the Hearing Examiner on an application for a site-specific amendment to the City of
Spokane Valley zoning map (i.e. site specific rezone) is final and conclusive unless within
fourteen (14) days from the date the Examiner's decision was mailed, a party with standing
appeals the decision to the Spokane Valley City Council pursuant to Section 17.90.070 of the
SVMC.
On December 2, 2014, a copy of this decision will be mailed by regular mail to the
Applicant, and to all government agencies and persons entitled to notice under Section
17.80.130(4) of the SVMC. THE APPEAL CLOSING DATE WILL BE DECEMBER 16,
2014.
HE Findings, Conclusions and Decision File No. REZ-2014-0002 Page 8
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
West Broadway Avenue, Spokane, Washington, 99260-0245; and may he inspected by
contacting staff assistant Kristine Chase 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 (unless an appeal is timely filed), 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 File No. REZ-2014-0002 Page 9