2000, 10-09 File: CUE-09-00 Findings of Factr
SPOKANE COUNTY HEARING EXAMINER
RE: Conditional Use Permit for a Home Industry, )
in the Urban Residential -3.5 (LTR -3.5) zone ) FINDINGS OF FACT,
Applicant: Terence and Kathleen Thompson) CONCLUSIONS OF LAW,
File No. CUE -9-00 ) AND DECISION
I. SUMMARY OF PROPOSAL AND DECISION
Proposal: Application for a conditional use permit for a home industry, to allow development
of a water garden/pond supply business, in the Urban Residential -3.5 (UR -3.5) zone.
Decision: Approved, subject to revised conditions of approval.
The Hearing Examiner has reviewed the conditional use permit application and the
evidence of record, and hereby adopts the following Findings of Fact, Conclusions of Law and
Decision:
II. BACKGROUND/FINDINGS OF FACT
A. General Information:
Applicant/Owner: Terence D. and Kathleen L. Thompson, 8003 East Cataldo Avenue,
Spokane, WA 99212
Site Address: 7910 East Desmet Avenue and 8003 West Cataldo, Spokane, WA
Site Location: Generally located north of and adjacent to Cataldo Avenue, south of and
adjacent to Desmet, in the NW 1/4 of Section 18, Township 25 North, Range 44 EWM, Spokane
County, WA
Legal Description: County Assessor's tax parcel no. 45182.0814 and .0819 (now aggregated)
Zoning: Urban Residential -3.5 (UR -3.5). The site is located inside the Aquifer Sensitive Area
(ASA) Overlay zone and the Public Transit Benefit Area designated by the County Zoning Code.
Comprehensive Plan: Urban category. The subject property is also within the ASA, the
Priority Sewer Service Area, and the Urban Impact Area designated by the Comprehensive Plan.
IUGA: The site is located inside the interim urban growth area boundaries designated by
the County pursuant to the State Growth Management.
Environmental Review: A Determination of Nonsignificance (DNS) was issued by the
Division of Planning on August 18, 2000.
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Site Description: The subject property is approximately .96 acre in size, irregular in shape
and relatively flat in topography. The site and adjoining lots are part of a subdivision recorded •
in 1954. The lot lying directly west of the northwest portion of the site, which fronts along Ella
Road and DeSmet Avenue, was originally part of a larger parcel that included the northwest
portion of the site. Such adjacent lot is improved with a single-family home,,which is owned by
the applicant and is currently being rented out to others. The address for' thel-esidence is 1028 N.
Ella Road. In 1999, the northwest portion of the site was segregated from the adjacent parcel to
the west by a lot line adjustment. The parcels making up the site were recently aggregated, in
order to meet the approval criteria for a home industry conditional use permit in the UR -3.5 zone.
The northwest portion of the site contains an accessory building/shop, which previously
served as a detached garage for the home at 1028 N. Ella Road. The south end of the site, which
fronts along Cataldo Avenue, is improved with a single-family residence and attached garage.
The northwest end of the site fronts along DeSmet Avenue for approximately 70 feet.
County Assessor records indicate the existing residence as having a main floor area of
approximately 825 square feet, and the detached shop as having a footprint on the ground of
approximately 1,040 square feet. The residence is served by public water and was recently
connected to public sewer, along Cataldo Avenue. The site also has access to well water from
the applicant's adjoining property to the west, via an easement on the west property line. The
detached shop contains no restroom facilities or water service, and is not connected to public
sewer. A portable toilet has been placed near the shop. A commercial water garden/pond supply
business is currently being operated out of the shop, known as "Blue Iris Water Gardens",
without a required conditional use permit for a home industry. The applicant has been issued a
home profession permit by the County, which restricts operation of the business to the residence
on the site. File HPE -8-96.
The middle east part of the property is improved with landscaped ponds (water gardens),
with nearby benches for seating, and a 12 -foot by 14 -foot Japanese tea house. The rear yard of
the site is enclosed by sight -obscuring wood fencing, except for the exterior borders of the
northwest extension of the site, where see-through cyclone fencing is found. Signage for the
business is illustrated along the west face of the shop and on the entrance gate along DeSmet
Avenue. The northwest portion of the site around the shop is graveled and has room for parking.
The Hearing Examiner observed some outdoor storage on the property during a site visit, along
the north property line and near the shop. Development of the site is visible in the photos
included in Exhibits A, B, E and F.
Area Road System: Broadway Avenue, located one block south of the site, Park Road, located
a quarter mile west of the site, and Argonne and Mullan Roads, located .7 miles to the east, are
all designated as Principal Arterials by the County Arterial Road Plan. Vista Road, located a
block and one-half to the east, is designated as a Collector Arterial. Interstate 90 is located .2
mile north of the site, at its closest point. The State of Washington is currently in the process of
widening I-90 in the area, and installing a bridge over the freeway for Park Road. DeSmet
Avenue is an unpaved, un -maintained county right of way with a width of 65 feet and a traveled
width of approximately 25 feet.
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' Surrounding Conditions: The land in the area is designated in the Urban category of the
Comprehensive Plan. The land lying north of the site is zoned UR -3.5 and is primarily
developed with single-family homes. A duplex lies directly north of the northwest portion of the
site, across DeSmet Avenue. Lot sizes to the north range from approximately 12,200 square feet
to 28,750 square feet. Some Light Industrial (I-2) zoning is found at some distance northwest of
the site, mostly bordering I-90.
The land lying east of the site is zoned UR -3.5, and is developed with single-family homes
on lots ranging from 14,700 square feet to 21,780 square feet. The lot lying directly east of the
southeast portion of the site is undeveloped. The land lying west of the site, east of Ella Road, is
zoned UR -3.5, and developed with single-family homes on lots ranging in size from 10,500
square feet to 19,700 square feet. A middle school is located westerly of the site, on a large
parcel that extends between Ella Road and Park Road.
A 6.5 acre parcel of land, zoned UR -22 and developed with apartments, lies south of the
site at the southeast comer of Cataldo Avenue and Ella Road. The land lying east of such zone,
south of Cataldo Avenue, is zoned UR -3.5 on lot sizes averaging 11,760 square feet.
Project Description: The application for a conditional use permit requests approval of a
home industry use, to allow use of the detached accessory building/shop for a water
garden/pond supply business. The site plan of record submitted on 5-10-00 illustrates the
shop as 1,000 square feet, with an attached lean-to on the west end that is open on the south
side. Parking is illustrated on the west side of the shop, and additional parking is shown east
of the shop. A driveway is illustrated extending south from DeSmet, around the main parking
area and shop to the additional parking area. Another driveway extends southeast from
DeSmet to the additional parking area. The shop, driveways and parking areas are confined to
the northwest portion of the project.
The site plan illustrates 3 irregularly shaped "water garden" ponds, and one rectangular
"formal water garden" pond in the middle east portion of the site, arranged generally around
the Japanese tea house on the site. The largest pond has maximum dimensions of 6 feet by 12
feet, in an irregular shape. The site is heavily landscaped with trees and shrubs, and has a
park -like appearance. The applicant proposes to replace some of the weeds and rocks on the
site with grass. The site plan illustrates fencing around the entire perimeter of the site, except
in the front yard.
The pre -application conference form for the project comments that 2 outside employees
would be involved in the business, in addition to family members residing on the site. •
B. Procedural Information:
Applicable Zoning Regulations: Spokane County Zoning Code 14.616.240 (4), and Zoning
Code Chapter 14.404
Hearing Date and Location: September 6, 2000, Spokane County Public Works Building,
Lower Level, Commissioners Assembly Room, 1026 West Broadway, Spokane, WA.
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Notices: Mailed: August 14, 2000
Published: August 18, 2000
Site Visit: September 19, 2000
Hearing Procedure: Pursuant to County Resolution Nos. 96-0171 and 96-0294
Testimony:
Deanna Walter
Division of Current Planning
1026 West Broadway
Spokane, WA 99260-0240
Terry Thompson
8003 East Cataldo
Spokane, WA 99212
Daryl Hatten
7905 East Boone Avenue
Spokane, WA 99212
Scott Engelhard
Division of Engineering
1026 West Broadway
Spokane, WA 99260
Hugh Smith
8016 East Boone
Spokane, WA 99212
Items Noticed: Spokane County Comprehensive Plan, County Zoning Code, County Code,
County Arterial Road Plan maps, 1996 Update to County Wastewater Management Plan, and
County Standards for Road and Sewer Construction. County Resolution Nos. 99-0265 (revising
Standards for Road and Sewer Construction, 97-0874 (revising interim regulations for County
IUGAs), 97-0321 (adopting interim regulations for County IUGAs), 96-0585 (adopting 1996
Update to CWMP), 96-0294 (Hearing Examiner Rules of Procedure), 96-0293 (ESHB 1724
procedures), and 96-0171 (Hearing Examiner Ordinance).
III. LAND USE ANALYSIS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Approval criteria
The Hearing Examiner Ordinance authorizes the Hearing Examiner to grant, deny or grant
with such conditions, modifications and restrictions as the Examiner finds necessary to make a
conditional use permit application compatible with the Spokane County Generalized
Comprehensive Plan and applicable development regulations. See County Resolution No.
96-0171, Attachment "A", paragraphs 7 (d) and section 11. Development regulations include
without limitation the County Zoning Code, the State Environmental Policy Act (SEPA) and the
County's Local Environmental Ordinance (chapter 11.10, Spokane County Code).
To be approved, the conditional use permit must comply with the criteria set forth in the
Urban Residential -3.5 (UR -3.5) zone for a home industry, the development standards of the UR -3.5
zone, the general requirements for conditional uses contained in Zoning Code 14.404.100 et seq,
and other applicable development regulations. Zoning Code 14.404.101 authorizes denial of a
conditional use permit "... where it cannot be shown that the requested use will be compatible with
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' other permitted uses in the zone involved ...", and authorizes the Hearing Examiner to impose
conditions on development of a conditional use to ensure the permit's compatibility with other
permitted uses in the zone.
Zoning Code 14.404.102 (1) sets forth various conditions and restrictions that may be
imposed on issuance of a conditional use permit. This includes control of use; special or
enhanced standards of development; control of noise, glare, and other environmental effects;
control of operating hours; limitations on duration or time of use; and "... [a]ny other reasonable
restrictions, conditions or safeguards that will uphold the spirit and intent of the [Zoning] Code
and the Comprehensive Plan and mitigate any adverse impact upon the adjacent property by
reason of use, extension, construction, or alteration allowed."
A comprehensive plan is considered as a general blueprint for land use regulation. See
Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 873 (1997); and Cathcart v.
Snohomish County, 96 Wn.2d 201, 211-12 (1981). Where a comprehensive plan conflicts with
zoning regulations, the zoning regulations will usually be construed to prevail. See Weyerhaeuser
v. Pierce County, 124 Wn.2d 26, 43 (1994). This is particularly the case with regard to the approval
of conditional use permits. See Hansen v. Chelan County, 81 Wn. App 133, 138 (1996); and Pease
Hill v. County of Spokane County, 62 Wn. App. 800, 808-809 (1991).
County Zoning Code 14.100.104 provides that the Zoning Code shall be interpreted to
carry out and implement the purpose and intent of the Comprehensive Plan, and the general plans
for physical development adopted by the Board of County Commissioners. Zoning Code
14.100.106 indicates that when the provisions of the Zoning Code conflict with the
Comprehensive Plan, or other adopted plans and development regulations, the more restrictive
provisions shall govern to the extent legally permissible and the Zoning Code provisions will be
met as a minimum.
The Comprehensive Plan states that the decision guidelines set forth in the Plan should be
used as a reference source and guide for making land use decisions. Comprehensive Plan, p. 2.
B. The conditional use permit for a home industry, as conditioned, generally conforms with
the Comprehensive Plan; is consistent with the purpose, intent and development standards of the
Urban Residential -3.5 (UR -3.5) zone; complies with the special standards established by the
UR -3.5 zone for the conditional use; is reasonably compatible with other uses permitted in the
UR -3.5 zone or in the location of the proposed use; reasonably mitigates any adverse impacts on
adjoining properties by reason of use, extension, construction or alteration allowed with respect
to the conditional use; and is consistent with the County Zoning Code and applicable
development regulations.
1. Applicable Comprehensive Plan policies
The proposal is designated in the Urban category of the Comprehensive Plan. The Urban
category of the Comprehensive Plan is intended to provide the opportunity for a "citylike"
environment, including a variety of land uses served by a high level of public facilities and
services. It is primarily a residential category of single-family, two-family, multifamily and
condominium buildings, along with neighborhood commercial, light industrial, public and
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recreational facilities. The Urban category recommends a residential net density range of 1 to 17
dwelling units per acre. Comprehensive Plan, Section 1.
The Urban category states that the more intensive uses such as light industrial and
neighborhood commercial should be located near the heavily traveled streets, with the less
intensive uses such as residential isolated from the noise and traffic.
The Urban category does not directly address itself to a "home industry" use. The Urban
category does contemplate "home occupations", which are similar to the "home profession" use
that is permitted in various zones by the County Zoning Code, through administrative action by
the County Division of Planning. The Urban category recommends that before home
occupations are approved in an existing residential area, it should be determined that they do not
disrupt residential amenities conceming sight, sound, smell and similar factors; create traffic
which exceeds road design or which develops traffic hazards within the neighborhood; or
negatively impact the intended uses within such category. Urban category, Objective 1.1.i and
Decision Guideline 1.1.7.
Urban category uses should be served by a high level of public services, including public
sewer or interim sewage disposal systems that protect water quality. Decision Guidelines 1.1.2
and 1.3.3. A variety and mix of residential uses and densities are recommended in such category.
Decision Guideline 1.1.4. Residential areas are discouraged in high noise areas. Objective 1.5.d
and Decision Guideline 1.5.6.
The Urban category recommends that new residential development be buffered from
existing adjacent uses where adverse effects may develop, through use of spatial separation,
distance, screening, landscaping or other performance standards. Decision Guideline 1.5.1.
Structure height and the architectural character of new development in relation to nearby
structures in the neighborhood are to be considered before approving such development.
Decision Guideline 1.5.8. Land use proposals should be consistent with adopted County and
service district utility plans, policies and regulations, and resolve adverse effects on public
infrastructure. Decision Guideline 1.6.1.
The Transportation section of the Comprehensive Plan contains the Arterial Road Plan and
policies applicable to development along county roads. The Arterial Road Plan describes the
various classes of County arterials and their functions, and considers all other county roads as
Local Access roads. The Arterial Road Plan maps designate arterials in the urbanizing areas of
the county as Principal Arterials, Minor Arterials or Collector Arterials, in descending order of
importance. See Comprehensive Plan, Section 21.
The roads adjacent to the site are considered Local Access roads by the Arterial Road Plan.
The primary function of Local Access roads is to provide access to adjacent property and deliver
traffic to arterials. Such roads are to be designed and located to provide convenient access to
residential lots, discourage flows of traffic through a neighborhood, and encourage continuous or
unobstructed flow of traffic from a neighborhood to a neighborhood Collector Arterial.
Comprehensive Plan, p. 247 and 260; and Decision Guideline 21.3.3.
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Decision Guideline 21.5.10 discourages "through" traffic from using residential access
streets, and encourages making residential neighborhoods more attractive to family residents.
This may be accomplished by utilizing physical and traffic management techniques such as
offset intersections, circle drives, curvilinear street design and cul-de-sacs.
The Transportation section encourages an adequate, efficient, safe, economical and energy -
conserving arterial system; which provides convenient access to homes, employment, shopping,
personal business and recreation. See Decision Guideline 21.4.2. Decision Guideline 21.5.3
encourages land use planning that will minimize the need for high capacity transportation
corridors and encourages land uses in areas that can take advantage of the available capacity of
existing arterial streets.
Decision Guideline 21.5.11 encourages pedestrian facilities to enhance the safety and
convenience of pedestrian travel and to provide access to neighborhood facilities. Decision
Guideline 21.1.5 indicates that sidewalks should at a minimum be provided along all arterial
roads and all local access roads which Lead to schools, parks and shopping districts. The
Transportation section states that proposed development may be required to dedicate needed
right of way, or to widen, or assist in widening, existing transportation facilities; all in
accordance with established road design criteria and official maps. Decision Guideline 21.1.7.
Decision Guideline 23.1.2 of the Comprehensive Plan recommends that sewer facility
planning and development be consistent with the Comprehensive Plan in regard to size, location
and timing. Decision Guideline 23.1.3 indicates that capital improvement plans for sewer
facilities should be used as an implementation tool for the Land Use Element of the
Comprehensive Plan. The more restrictive of the policies in the CWMP and Comprehensive Plan
are to be applied by public agencies using such policies. See County Resolution No. 96-0585.
In 1996, the County adopted an update to the County Comprehensive Wastewater
Management Plan (1996 CWMP Update), which is incorporated by reference into the
Comprehensive Land Use Plan adopted by the County. The 1996 CWMP Update designates 6 -
year and 15 -year capital improvement areas where the County plans to extend public sewer
service. The current site is located inside a 6 -year program area, and public sewer was recently
extended in Cataldo Avenue adjacent to the site. See County Resolution No. 96-0585, adopting
CWMP 1996 Update, p. 2-8, 2-10 and Exhibit 4-2.
2. Consistency of home industry with approval criteria
The proposal is zoned Urban Residential -3.5 (UR -3.5), a zone which implements the
Urban category of the Comprehensive Plan. Zoning Code 14.616.100 states as follows:
The purpose of the UR -3.5 zone is to implement the lower density range of
the Urban category of the Comprehensive Plan. The intent of the zone is
to promote areas of primarily single-family residential use in an urbanized
neighborhood setting, having a high level of public services. Lots shall be
served by a public water system and shall require connection to a public
central sewer system when available. Roadways shall be paved and
curbed and may have sidewalks.
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The UR -3.5 zone expressly allows a "home industry" as a conditional use, provided it
meets the standards set forth in Section 14.616.240 (4) of the Zoning Code and other applicable
requirements. Section 14.300.100 of the County Zoning Code defines a "home industry" as
follows:
An occupation, profession, or craft, excluding an adult bookstore or adult
entertainment establishment, in association with a primary residence,
which is of such intensity or broad scope of operation that public hearing
review, as a Conditional Use Permit, is necessary. Therefore, by
character and definition, a home industry is different than a home
profession or general commercial, industrial and business uses.
A "home profession" is permitted as an accessory use in the UR -3.5 zone, provided that a
home profession permit is obtained. Zoning Code 14.616.220. A home profession is a more
limited use than a home industry use; and must be carried on entirely within a residence by the
occupants of such residence, be clearly incidental to the use of the residence as a dwelling,
cannot change the residential character of the dwelling or neighborhood, and be conducted
without giving the outward appearance of a business. See Zoning Code 14.300.100, definition of
"home profession". The current home profession permit issued to the applicant for the water
garden supply business is not broad enough for the proposal, since the applicant is using the
detached shop and grounds for the business.
The project will be served by a high level of public services, including public sewer and
water, is located in an area where public facilities have already been established, and lies within
the interim urban growth area (IUGA) designated by the County pursuant to the State Growth
Management Act. The project has been conditioned for public sewer.
County Resolution No. 97-0874 prohibits the approval of a conditional use permit within
the County's designated Interim Urban Growth Area (IUGA) boundaries, unless the proposal can
demonstrate the availability of public sewer and water, or is located within the 15 -year sewer
capital program area designated by the 1996 Update to the County Comprehensive Wastewater
Management Plan. The County Division of Utilities has indicated that the applicant can extend
public sewer a distance of 265 feet to the detached shop, from the sewer connection already
established for the residence located on the site.
The applicant testified that approximately 10% of the business comes from customers
residing within 400 feet of the site, and their friends, and that a large and increasing amount of
sales of water garden products is generated via the intemet. The business is largely seasonal,
between March and October, with the highest number of customers generated in the summer.
During the winter months, the detached shop is used as a gift shop for their products. The
applicant testified that two water garden ponds previously located north of the water garden
ponds illustrated on the site plan have been removed, and that the remaining ponds on the site are
permanent. The applicant testified that usually no more than 4-5 customers visit the site during
the day, that as many as 8-10 customers visit the site on occasion, and that no more than 4
customers at any one time. Business hours for the public during the week are generally
Wednesday through Sunday, from 9:30 a.m./10:00 a.m. to 7:00 p.m.
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' " ~ Hugh Smith, the owner of an assemblage of parcels stretching from Ella Road to Dick
Road extended north, including a duplex lot located directly north of current site, immediately
east of the terminus of the DeSmet Avenue right of way, expressed numerous concerns regarding
the project. See Exhibit F, and testimony of Hugh Smith. The primary issue raised by Mr. Smith
dealt with impacts to his abutting property from the use of the unimproved DeSmet Avenue right
of way, by customers of the applicant's water garden business, for access and parking.
Mr. Smith testified that the entrance gate for the business, which is located a short distance
west of the end of the right of way, is usually kept closed. This results in cars using the driveway
for Mr. Smith's duplex as a turnaround, and to park in the right of way at the entrance to such
driveway. This results in congestion in the right of way, blocking of the duplex driveway,
customers driving on the duplex lawn, and the raising of dust. Such parking conditions are
exacerbated by cars parking on the subject right of way during school events conducted at
Centennial Middle School, which is located to the west along Ella Road. Mr. Smith also
requested that the applicant be required to pave DeSmet, if the conditional use permit was
approved.
The site plan of record shows driveways leading into and around the shop and proposed
parking areas, but does not provide a circular driveway. The applicant keeps the entrance gate to
the site along DeSmet Avenue locked for considerable periods of time, probably for security
reasons. Customers apparently come to the site during business and non -business hours, park on
the right of way, and view the water garden display areas on the site from DeSmet Avenue,
through the non -sight obscuring fence located along the north boundary of the northwest
extension of the site. The applicant does attempt to restrict customer parking on the right of way.
County Engineering requested that there be no parking for the business along DeSmet
Avenue, due to the narrow right of way, and recommended that the applicant construct a circular
driveway inside the site for use as a turnaround for customers. See testimony of Scott Engelhard.
The Examiner finds a turnaround within the site, with access available at all times, to be
necessary in order to mitigate impacts from the project on the users of DeSmet Avenue and Mr.
Smith's adjacent property.. The Examiner also finds that the cyclone fencing located along the `
north boundary of the site should be made sight -obscuring, east of the entrance gate. If
customers wish to view the water gardens, they can do so from inside the site. Parking should be
prohibited on the DeSmet right of way, and on-site parking limited to no more than 5 customer
vehicles at any one time, to preserve the residential appearance and character of the subject
property. The Examiner has amended the conditionsof approval in this regard.
County Engineering condition of approval #3 requires the applicant to submit a parking
plan and traffic circulation plan for review and acceptance, and the paving or surfacing of any
portion of the site that would be occupied or traveled by vehicles. At the public hearing, County '
Engineering indicated that such condition would likely require the applicant to pave the parking
area on the site and the DeSmet Avenue right of way, and possibly the private driveways for the
business leading to DeSmet. The applicant, Terry Thompson, testified that due to the small size
of the business; he couldn't afford to pave the parking areas or the right of way.
Section 14.802.080 requires all off-street parking areas for uses other than single-family
housing, within the Urban Impact Area designated in the Comprehensive Plan, to be graded and
a paved surface installed before issuance of a certificate of occupancy for the building. The site
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is designated in the UTA. The County Planning Director may waive the paving requirement
within the UTA, upon recommendations by County Engineering and the Spokane Air Pollution
Control Authority (SCAPCA), if the applicant can demonstrate that the proposed surfacing, such
as grass pavers or other technology, will not adversely affect air quality, water quality or the
integrity of the parking area.
County Engineering has considerable discretion over county roads under the County Road
Standards and the Spokane County Code, including the use of non -maintained county rights of
way such as DeSmet Avenue for private access. The increase in vehicle trips along the DeSmet
right of way for the home industry provides a sufficient basis for County Engineering to require
improvements to the right of way, if found to be necessary through an administrative review
process. Compliance with County Engineering condition of approval #1 may necessitate that the
applicant pave DeSmet Avenue. See testimony of Scott Engelhard.
Mr. Smith also expressed concern that the shop was not connected to public sewer or public
water, and was not handicap accessible. The County Health District conditions of approval
prohibit the use of any individual on-site sewage system for the home industry, and require that a
public sewer system and a public water system be made available for the project. The Hearing
Examiner has added a condition of approval requiring the applicant to immediately remove the
portable toilet from the site. The County Health District condition would appear to prohibit the
applicant from serving the shop on the site with well water, in lieu of a connection to public
water. Such conditions may allow the applicant to irrigate the site with well water. Convincing
evidence was presented at the public hearing that the residence on the site is connected to public
sewer and water.
The applicant testified that the shop was at ground level and had a ramp installed for
handicap access, and that his son was bound to a wheelchair and could get around the project site
without difficulty. Whether the home industry complies with or is subject to applicable "barrier
free" handicap requirements is unknown. The Examiner has added a condition of approval
requiring the applicant to contact the Division of Building and Code Enforcement, to ensure that
any barrier free requirements applicable to the home industry are complied with.
Mr. Smith also contended that the shop did not meet setback requirements, which he stated
to be 25 feet from the property line if used as a business with a separate address. County
Planning staff stated that the north property line was a side yard line, not a front yard line. The
side yard setback requirement in the UR -3.5 zone is five (5) feet. The shop is setback 20 feet
from the north property line. Structure setbacks for uses adjacent to a recorded driveway
easement are established from the inner edge of the driveway easement and calculated as a side
yard setback. The access easement or license that the applicant needs from County Engineering
to access DeSmet Avenue for the home industry is akin to a driveway easement. The shop
appears to meet setback requirements.
Mr. Smith further objected to the dumpster placed just west of the site, adjacent to or within
the DeSmet Avenue right of way. The applicant testified that the dumpster was used only by the
renters of his residence located at 1028 N. Ella Road. The Examiner agrees that if the dumpster
is used for the home industry, it should be kept out of the right of way, except for pick-up by the
solid waster system. A condition of approval has been added in this regard.
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The owner of a residence located some distance northwest of the site, at the northeast
corner of Ella Road and Boone Avenue, expressed concern regarding the addition of traffic along
Ella Road and the business nature of the project. No evidence was presented of a traffic
engineering nature that the project would cause a failing level of service along DeSmet Avenue.
The Staff Report indicates that there are no outside displays on the subject property.
However, the water garden ponds represent outdoor displays that are shown to customers of the
business for the purpose of marketing water garden products. If the ponds did not comprise
outdoor display areas, they would have to be enclosed in the existing shop, or other accessory
building, meeting the square footage limitations for the home industry. See Zoning Code
14.616.240 (b).
County Planning condition of approval #3 requires that the project site be developed in
accordance with the site plan of record. This prevents the applicant from adding any additional
buildings, or water gardens, displays, etc. in the yard areas of the site without submitting a
change of conditions application and going through the public hearing process. The Examiner
finds this limitation necessary to prevent the scale of the project from destroying the residential
appearance and character of the site. This does not prevent the applicant from further
Landscaping the site with grass or residential landscaping features, as long as they preserve the
residential appearance and character of the site.
The Staff Report indicates that no signs currently exist on the site or are illustrated on the
site plan. However, signage for the business is found on the west face of the shop and on the
north fence. The applicant is restricted by Zoning Code 14.616.240 (d) to a single, unlighted
sign a maximum of 4 feet on a face.
Some storage exists around the shop and along the north boundary of the site that may be
associated with the home industry. If associated with the home industry, such storage must
either be enclosed or completely screened from view by a maximum 6 -foot high sight -obscuring
fence Zoning Code 14.616.240 (4)0).
The project otherwise appears to meet the standards for the home industry established by
the Zoning Code, as set forth in the Staff Report. With the conditions of approval imposed
below, the subject property will retain its residential appearance and character, be reasonably
compatible with adjoining land uses and other land uses in the UR -3.5 zone surrounding the site,
generally conform with the Urban category and other relevant policies of the Comprehensive
Plan, and comply with the Zoning Code and other applicable development regulations.
A building permit may not be necessary for the project. The Examiner has accordingly
imposed time frames for compliance with the conditions of approval.
The requirements of the State Environmental Policy Act and the County's Local
Environmental Ordinance have been met. No significant adverse environmental impacts will
occur as a result of the project, as conditioned. The Hearing Examiner concurs with the
Determination of Nonsignificance issued by the Division of Planning.
HE Findings, Conclusions and Decision
CUE -9-00 Page 11
IV. DECISION
Based on the above Findings of Fact and Conclusions of Law, the above application for
a conditional use permit for a home industry in the existing UR -3.5 zone, for a water garden/
pond supply business, is hereby approved, subject to the conditions of approval set forth
below. Any significant changes or additions to the conditions of approval recommended by
the public agencies below are italicized.
Failure to comply with the conditions of this approval may result in suspension or
revocation of this approval by the Hearing Examiner. This approval does not waive the
applicant's obligation to comply with all other requirements of other agencies with jurisdiction
over land development.
SPOKANE COUNTY DIVISION OF PLANNING
1. All conditions imposed by the Hearing Examiner shall be binding on the "Applicant", which
term shall include the owner(s) and developer (s) of the property, and their heirs, assigns and
successors.
2. The proposal shall comply with the special standards for a home industry in the Urban
Residential -3.5 (UR -3.5) zone, specifically paragraph 14.616.240 (4) of the Spokane County
Zoning Code, as amended, the general development standards of the UR -3.5 zone, the Aquifer
Sensitive Overlay zone, and other applicable sections of the County Zoning Code, as amended.
3. The applicant shall develop the subject property in strict conformance with the site plan of
record submitted on 5-10-00, a copy of which is attached to the staff report, except as required to
be modified to comply with conditions of approval and development regulations. Any other
modification shall require submittal of a change of conditions application, for review and
approval by the Hearing Examiner at a public hearing. All aspects of the concept and proposal
shall be binding on the development, including proposed use.
4. The applicant shall submit a parking plan for the home industry, for review and approval by
the Division of Planning and County Engineering. .#- 4
5. All parking for the home industry shall take place on site. Customer or staff parking on the
DeSmet Avenue right of way is prohibited. No more than five (5) customer vehicles may be
parked on site at any time.
6. The applicant shall provide an adequate turnaround on the site for customer vehicles
accessing the site from the DeSmet Avenue right of way. The turnaround shall be accessible at
all times, whether the business is open to the public or not, so that customer vehicles do not park
on the right of way to access the home industry or to view site improvements. The applicant may
take measures to restrict parking of non -customer vehicles on the site during school events at
Centennial Middle School.
7. The entire north boundary of the site shall be screened by a 6 -foot high sight -obscuring
fence, east of the access into the site from the DeSmet Avenue right of way.
HE Findings, Conclusions and Decision
CUE -9-00 Page 12
8. No outside displays, other than those illustrated on the site plan of record, are allowed on
the site.
9. The applicant shall contact the County Division of Building and Code Enforcement
regarding barrier free handicap requirements associated with the shop, and comply with any
applicable requirements.
10. The applicant shall remove the portable toilet currently placed on the site.
11. If a garbage dumpster is used for the home industry, it shall be stored on site in compliance
with the storage standards of the UR -3.5 zone, except as otherwise required for garbage pick-up.
12. Signage for the home industry shall comply with paragraph 14.616.240 (4)(d) of the
County Zoning Code, as amended.
13. Only members of the family residing on the site, and no more than two (2) employees of the
family residing on the site, may be engaged in the home industry.
14. The applicant shall comply with the above conditions of approval immediately, except that
the applicant shall have a period of forty-five (45) days to install an adequate turnaround within
the site for customer vehicles, extend the sight -obscuring fencing along the north property line as
required above, and comply with barrier free requirements.
15. The Division of Planning shall prepare and record with the Spokane County Auditor a Title
Notice, noting that the property in question is subject to a variety of special conditions imposed
as a result of approval of a land use action. This Title Notice shall serve as public notice of the
conditions of approval affecting the property in question. The Title Notice should be recorded
within the same time frame as allowed for an appeal and shall only be released, in full or in part,
by the Division of Planning. The Title Notice shall generally provide as follows:
"The parcel of property legally described as [ ] is the subject of a land use action by
the Spokane County Hearing Examiner on October 9, 2000, imposing a variety of special
development conditions. File No. CUE -9-00 is available for inspection and copying in the
Spokane County Division of Planning."
SPOKANE COUNTY DIVISION OF BUILDING AND CODE ENFORCEMENT
1. The proximity of the building to the property line may require alterations to the exterior walls
to meet Uniform Building Code requirements.
SPOKANE COUNTY DIVISION OF ENGINEERING AND ROADS
Prior to release of a building permit or use of the property as proposed:
1. The applicant proposes to access the proposed site using Desmet Avenue, which is a non -
maintained public right of way. Within thirty (30) days, the applicant shall execute a Spokane
County Notice to Public No. 4, to allow access across the non -maintained public right of way.
This may necessitate paving or other surfacing of the right of way.
HE Findings, Conclusions and Decision
CUE -9-00 Page 13
2: An approach permit shall be obtained from the Spokane County Engineer prior to the
construction of any new driveway approaches. This must be done prior to the release of a
building permit.
3. Within thirty (30) days, a parking plan and traffic circulation plan shall be submitted and
accepted by the Spokane County Engineer. The design, location and arrangement of parking
stalls shall be in accordance with standard engineering practices. Paving or surfacing as
approved by the County Engineer will be required for any portion of the project that is to be
occupied or traveled by vehicles, absent application for and approval of a waiver from such
requirement under applicable regulations.
4. Future expansion of the proposal may warrant additional traffic information and/or road
improvements.
5. No construction work is to be performed within the existing or proposed public right of
way until plans have been accepted by the County Engineer and a permit has been issued by the
County Engineer. All work is subject to inspection and approval by the County Engineer.
SPOKANE COUNTY DIVISION OF UTILITIES
1. Any water service for this project shall be provided in accordance with the Coordinated
Water System Plan for Spokane County, as amended.
2. Stormwater Utility: Any additional runoff generated from impervious surfaces shall drain
to grassed percolation area swales.
SPOKANE REGIONAL HEALTH DISTRICT
1. The sewage disposal method shall be as authorized by the Director of Utilities, Spokane
County.
2. Water service shall be coordinated through the Director of Utilities, Spokane County.
3. Water service shall be by an existing public water supply when approved by the Regional
Engineer (Spokane), State Department of Health.
4. A public sewer system shall be made available for the project and individual service
provided. The use of individual on-site sewage disposal systems shall not be authorized.
5. The use of private wells and water systems is prohibited.
SPOKANE COUNTY AIR POLLUTION CONTROL AUTHORITY
1. All applicable air pollution control regulations must be met.
HE Findings, Conclusions and Decision
CUE -9-00 Page 14
DATED this 9th day of October, 2000.
SPOKANE COUNTY HEARING EXAMINER
Michael C. Dempsey, WSBA #8235
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Spokane County Resolution No. 96-0171, the decision of the Hearing Examiner
on an application for a conditional use permit is final and conclusive unless within twenty-one (21)
calendar days from the issuance of the Examiner's decision, a party with standing files a land use
petition in superior court pursuant to chapter 36.70C RCW. Pursuant to chapter 36.70C RCW, the
date of issuance of the Hearing Examiner's decision is three (3) days after it is mailed.
This Decision was mailed by Certified Mail to the Applicant, and by first class mail to other
parties of record, on October 9, 2000. The date of issuance of the Hearing Examiner's decision is
therefore October 12, 2000, counting to the next business day when the last day for mailing falls on
a weekend of holiday. THE LAST DAY FOR APPEAL OF THIS DECISION TO SUPERIOR
COURT BY LAND USE PETITION IS NOVEMBER 2, 2000.
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, (509) 477-7490. The file may be inspected
Monday -Friday of each week, except holidays, between the hours of 8:30 a.m. and 5:00 p.m.
Copies of the documents in the record will be made available at the cost set by Spokane County.
HE Findings, Conclusions and Decision
CUE -9-00 Page 15
CUE -09-00
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