VAR-2014-0001 Yellowstone Findings and Decision CITY OF SPOKANE VALLEY HEARING EXAMINER
Variance from Fence Height and Setback )
Requirements, in the I-2 Zoning District; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Applicant: Yellowstone Pipe Line Company ) AND DECISION
File No. VAR-2014-0001 )
)
I. SUMMARY OF DECISION
Hearing Matter: Application for variances from the maximum height for a fence (wall) in the I-
2 zoning district, the minimum front yard setback for nonresidential development (wall) in the I-
2 zoning district, and the minimum setback for structures (wall) under the pipeline hazard
overlay provisions of the SVMC.
Summary of Decision: Approve variances, subject to conditions of approval.
I. FINDINGS OF FACT
1. The subject application seeks the approval of variances from the 8-foot maximum height for
fences, and the 20-foot minimum front yard setback for nonresidential development, in the Heavy
Industrial (I-2) zoning district; and from the 25-foot minimum setback for structures from
pipelines, under the pipeline hazard overlay provisions of the Spokane Valley Municipal Code
(SVMC).
2. The variances would allow a fence (wall) to be constructed to a height of 15 feet, for a
distance of approximately 41 feet; and to a respective height of six (6) feet and three (3) feet, on
each side of the 15-foot high wall, for an additional combined distance of approximately 65 feet; at
a setback located just inside the lot front line.
3. The purpose of the application is to provide adequate protection from hydrocarbon vapors
emitted from a potential equipment failure of a pump serving the Yellowstone Pipeline; in
accordance with industry standards, and the pipeline hazard overlay provisions of the Spokane
Valley Municipal Code (SVMC).
4. The site is located north of and adjacent to Sharp Avenue; is currently referenced as County
Assessor's tax parcel no. 35132.0503; and has an address of 6318 E. Sharp Avenue, Spokane
Valley, WA.
5. The applicant, and the site owner, is Yellowstone Pipe Line Company, c/o Larry Ostwald,
3180 Highway 12 E., Helena MT 59601.
6. On April 10, 2014, the applicant submitted a complete application for fence height and front
yard setback variances to the City Community Development Department("Department").
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7. The Hearing Examiner conducted a public hearing on the application on June 26, 2014, and
conducted a site visit prior to the hearing on such date. The notice requirements for the public
hearing were met.
8. The Hearing Examiner heard the application proposal pursuant to Chapters 17.80, 18.20 and
19.120 of the SVMC; and the Hearing Examiner Scheduling Rules and Rules of Conduct, codified
in Appendix B of the SVMC.
9. The following persons testified at the public hearing, under an oath administered by the
Hearing Examiner:
Christina Janssen, Current Planning Michael Kuntz
City of Spokane Valley 3330 Raser Drive
11707 E Sprague Ave Ste 106 Missoula, MT 59808
Spokane Valley, WA 99206-6124
10. Exhibits 1-8, consisting of the Staff Report submitted by the City Community Development
Department, and attachments thereto, were made part of the record at the hearing. Exhibit 9, a
power point presentation prepared by the Department, was also made part of the record.
11. The Hearing Examiner takes notice of the City Comprehensive Plan, Spokane Valley
Municipal Code (SVMC), other applicable development regulations, and prior land use decisions
for the site and in the vicinity.
12. The record includes the documents in the application file at the time of the public hearing,
Exhibits 1-9 and the testimony submitted at the hearing, the sign-in sheet for the hearing, and the
items taken notice of by the Hearing Examiner.
13. The site is approximately 18,000 square feet in size, rectangular in shape, and relatively flat
in topography. A 6-foot high chain-link fence is located along the borders of the property,
including the lot front line; with gate openings on the south and east fence lines. The property is
improved with a refined petroleum products terminal and pump station that serves the Yellowstone
Pipeline. See 2012 aerial map, and site plan of record.
14. The site plan of record submitted on April 10, 2014 shows the pump and motor structure for
the pump station, constructed in 1963. The structure lies 8.5 feet from the lot front line adjacent to
the right of way for Sharp Avenue, and approximately 27 feet from the existing pavement along
Sharp. Concrete jersey barriers are currently placed around the south, east and west sides of the
structure, as shown on the site plan.
15. The site plan, and an associated fence detail, show a proposed wall placed just inside the
existing chain link fence and the lot front line, for a distance of 106 feet; construction of the wall to
a 15-foot height, 6.5 feet from the existing pump at its closest point, and parallel to the middle of
the lot frontage; construction of the wall to a 6-foot height, and then a 3-foot height, both west and
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east of the 15-foot wall, respectively; retention of the existing 6-foot high chain link fence; and the
visibility of the 6-foot high chain link fence in front of the proposed 3-foot wall sections. The wall
would have a textured rock façade. See testimony of Michael Kuntz.
16. The definition of"structure" on page A-26 of Appendix A of the SVMC includes a fence of
six (6) feet or more; as well as a masonry, brick, concrete, or cinder block wall four (4) feet or
more in height.
17. The term"fence" is defined on page A-13 of Appendix A of the SVMC as follows:
"Fence: A wall or a barrier, composed of stone, brick or posts connected by lumber,
rails, panels, or wire for the purpose of enclosing space, marking boundaries, serving as
an obstruction or barrier or separating parcels of land." [Emphasis added].
18. SVMC 22.70.020.E provides that fences in industrial zoning districts shall not exceed eight
(8) feet in height.
19. SVMC 19.60.010.A, in conjunction with Table 19.60-1, requires a minimum front yard
setback of 20 feet for"nonresidential development" in the I-2 zone.
20. SVMC 19.110.040.D prohibits permanent or temporary accessory structures, and certain
other improvements, within 25 feet of any pipeline. SVMC 19.110.040.E, part of the Pipeline
Hazard Overlay provisions on the SVMC, prohibits permanent or temporary structures designed
for human habitation or occupancy within 50 feet of any pipeline.
21. SVMC 19.110.040.D would prohibit the construction of any portion of the proposed wall that
exceeds a height of four (4) feet within 25 feet of the face of the existing pump. This includes the
portion of the wall that is 15 feet high, and some adjacent portions of the wall to the east and west
that are six(6) feet high.
22. The site plan illustrates the 25-foot radius for a spherical area extending around the center of
the pump, and the 50-foot radius for a cylindrical area extending around the center of the pump at a
height of two (2) feet. Such areas are recommended as protection areas for the storage of
flammable liquids under the requirements of Chapter 14 of the API (American Petroleum Institute)
500 Code, for petroleum pipeline transportation facilities.
23. The 15-foot height of the proposed wall is located at the east and west points where the 25-
foot radius bisects the wall at its proposed location. The site plan notes that the wall is required to
be vapor tight, and the wall height along its length is dependent on the location of the pump in
relationship to the property line.
24. The site is located in the vicinity of Felts Field. As concluded on page 2 of the Staff Report,
the 15-foot height of the wall will not create a height hazard under SVMC 19.110.030, part of the
Airport Hazard Overlay provisions of the SVMC.
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25. As concluded on page 2 of the Staff Report, the proposed wall meets clear view triangle
requirements; as set forth in SVMC 22.70.020.C.
26. The Staff Report, on pages 3-4, found the application to be consistent with the criteria set
forth in SVMC 19.170.030; except for subsection A, which prohibits variances that"...constitute a
grant of special privilege inconsistent with the limitations upon uses of other properties in the
vicinity and the zone in which the property is located'. However, the Staff Report noted that the
variance is consistent with the intent of the I-2 zoning district, and is necessary for the protection
and safety of the public; and recommended approval of the proposed variance.
27. The site is unique from other properties in the vicinity zoned I-2, because it is developed with
an intensive industrial use that has become subject to new regulations and industry standards that
are intended to protect the public from hazardous vapors or liquids from petroleum products.
28. Compliance with the new standards and regulations would require relocation of the pump
station on or off the site, at a likely prohibitive cost; unless variances are approved to allow a
proposed wall to deviate from the minimum front yard setback of 20 feet for nonresidential
development in the I-2 zone, the maximum height of eight (8) feet for fences in the I-2 zone, and
the minimum setback of 25 feet for walls four (4) feet or taller in height from a pipeline in the
Pipeline Overlay zone.
29. The above conditions for the site constitute special circumstances relating to the location and
surroundings of the property, that justify approval of the variances in order to provide the site with
use rights and privileges permitted to other properties in the vicinity and zoned I-2; as provided in
SVMC 19.170.030.B.
30. Considering the purpose of the proposed variances is to comply with regulations and
standards that protect the public health and safety, and the all-encompassing development of the
property before such standards and regulations were implemented, approval of the variances does
not grant a special privilege inconsistent with the limitations upon uses of other properties in the
vicinity and the zone in which the property is located.
31. The application complies with the other criteria for approving a variance contained in SVMC
19.170.030, as set forth in the Staff Report.
Based on the above Findings of Fact,the Hearing Examiner enters the following:
II. CONCLUSIONS OF LAW
1. The application for the proposed variances, as conditioned, satisfies the variance criteria
specified in SVMC 19.170.030.
2. Approval of the variance application, as conditioned, is appropriate under SVMC 18.20.030.
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III. DECISION
Based on the above Findings of Fact and Conclusions of Law, the application for variances to
allow a portion of a proposed fence (wall) to be constructed to a height of 15 feet, for a length of
approximately 41 feet, in the I-2 zone; allow nonresidential development, in the form of a 106-foot
long wall with a height ranging from 3-15 feet, to be constructed just inside the lot front line, in the
I-2 zone; and to allow the 15-foot high portion of a wall, and portions of the 6-foot high portion of
the wall, to be constructed minimum distances of 6.5 feet up to 25 feet from a petroleum pipeline
that is subject to the pipeline hazard overlay provisions of the SVMC; is hereby approved, subject
to the conditions of approval specified below.
CONDITIONS OF APPROVAL:
SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT-CURRENT
PLANNING DIVISION:
1. The area of the proposed fence (wall) shall be located behind the lot front line (along the right
of way for Sharp Avenue), and shall be a maximum of 15 feet in height for a maximum length of
41 feet; on County Assessor's Tax Parcel#35132.0503.
2. The fence (wall) shall be constructed in substantial compliance with the site plan of record
submitted on April 10, 2014.
3. The Planning Division shall prepare and record a title notice with the Spokane County
Auditor, stating that the subject property is subject to certain conditions of approval imposed as a
result of a land use action. The title notice shall serve as a public notice that the property is subject
to such conditions of approval. All recording fees shall be paid by the property owner.
The title notice shall state:
"The parcel property legally described as (insert legal description) is the subject of a
land use decision by the City of Spokane Valley Hearing Examiner on September 22,
2014; approving certain Variances under the Spokane Valley Municipal Code, and
imposing various conditions of approval affecting the property. File No. VAR-2014-
0001, relating to such approval, is available for inspection and copying at the City of
Spokane Valley Community Development Department."
4. Except where noted in these conditions of approval, the proposal shall comply with the
applicable provisions of the Spokane Valley Municipal Code (SVMC).
5. All necessary permits shall be obtained for proposal.
6. The variance approvals in File No. VAR-2014-0001 will automatically expire and become
void if the applicant fails to obtain a building permit, or other necessary development permits. The
applicant must substantially complete the improvements allowed by the variance within 18 months
of September 22, 2014.
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DATED this 22nd day of September, 2014
CITY HEARING EXAMINER PRO TEM
Michael C. Dempsey, WSBA# 35
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC), and RCW
Chapter 36.70C, the decision of the Hearing Examiner on an application for a variance
permit 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 files a land use petition in
Superior Court pursuant to RCW Chapter 36.70C. Pursuant to RCW Chapter 36.70C, the
date of issuance of the Hearing Examiner's decision is three (3) days after it is mailed.
On September 22, 2014, this decision will be mailed by regular mail to the Applicant,
and to all government agencies and persons entitled to notice under SVMC 17.80.130(4). The
date of issuance of the decision is September 25,2014, counting to the next business day.
THE APPEAL CLOSING DATE FOR THE APPEAL OF THIS DECISION TO
SUPERIOR COURT IS OCTOBER 16, 2014.
The complete record in this matter 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 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, the file may be inspected at the City of Spokane Valley Community
Development Department-Planning Division, 11707 E. Sprague Avenue, Spokane Valley,
WA, 99206; by contacting Christina Janssen 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.
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