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2000, 08-17 Hearing Examiner Findings of Facts, Conclusions of Law and DecisionSPOKANE COUNTY HEARING EXAMINER RE: Appeal of an Administrative Determination, regarding dual primary uses on one site in the Regional Business (B-3) Zone; Appellant: Marco Barbanti File No. AIE-1-00 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION I. SUMMARY OF APPEAL AND DECISION Appeal: Appeal of an administrative interpretation/determination issued by the County Division of Planning, finding the establishment of both a residential use and commercial use on the site to be unlawful under the Regional Business (B-3) zone. Decision: Deny appeal, and approve administrative interpretation/decision. The Hearing Examiner has reviewed the administrative appeal 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: Appellant/Owner: Marco Barbanti, 2027 West Carlisle Avenue, Spokane, WA 99205 Legal Description of Site: Portions of Lots 12 and 13, Block 2, Vera McCabe Home Tracts, recorded with Spokane County Auditor Parcel Number: County Assessor's tax parcel no. 45154.2613 Site Address: 7 North McCabe Road, Spokane, WA Site Location: Generally located at the northwest corner of the intersection of McCabe Road and Sprague Avenue, in the SE 1/4 of Section 15, Township 25 North, Range 44 EWM, Spokane County, WA Zoning: Regional Business (B-3) zone. The site is also located inside the Aquifer Sensitive Area (ASA) Overlay zone and the Public Transit Benefit Area designated by the Zoning Code. Comprehensive Plan: Major Commercial category. The site is also located inside the ASA, the Priority Sewer Service Area and the Urban Impact Area designated by the Plan. IUGA: The site is located inside the interim urban growth area boundaries designated by the County pursuant to the State Growth Management Act. HE Findings, Conclusions and Decision AIE-1-00 Page 1 Environmental Review: The administrative interpretation and the appeal are considered exempt from environmental review under the County's Local Environmental Ordinance and the State Environmental Policy Act. Site Description: The site is approximately 11,470 square feet in size, generally rectangular in shape and flat in topography. An 864 -square foot, single -story house on the site is currently being used by the applicant's tenant for a commercial sign painting business, located in the attached garage of the residence, and for a dwelling, located in the remainder of the residence. The house was constructed in 1954, and remodeled in 1960. A billboard was erected in the rear (west) yard of the lot in approximately December, 1998. The dual business and residential use of the site is currently being investigated as a zoning violation by the County Division of Planning. Zoning History of Site: On May 17, 1984, the Spokane County Hearing Examiner Committee, now defunct, rezoned the site from the Agricultural Suburban (AS) zone to the Commercial (C) zone, for the purpose of developing retail uses, under the now expired County Zoning Ordinance. County Planning condition #4 attached to the rezone required that the site be developed generally in accordance with the concept presented to the Hearing Examiner Committee in a letter dated 2-6-84 from Dwight Hume, the land use consultant for the rezone applicant. County Planning condition #6 of the 1984 rezone decision required that a specific development plan be submitted for review by the County Planning Department prior to issuance of a building permit. The County Planning conditions also restricted access from the site to McCabe Road, prohibited vehicular access between the building and the north property line, and required special screening and fencing along the north property line. Other conditions of approval were also imposed by the decision. See HEC decision in File No. ZE-7-84. The letter dated 5-17-84 from Dwight Hume, referenced in the rezone decision, indicated that no specific site plan was being submitted for the rezone. The letter stated that when the single-family residence on the site was removed, the optimum use of the site would include a strip commercial building oriented east and west toward Sprague Avenue, along the north boundary similar to improvements on adjacent property. The remainder of the letter proposed buffering, access and other conditions of approval, some of which were adopted in the HEC's decision, and some of which were rejected. Effective January 1, 1991, the zoning of the site was re -designated to the Regional Business (B-3) zone of the County Zoning Code, pursuant to the Program to Implement the County Zoning Code. The Program to Implement converted the old zones of the Zoning Ordinance to the new zones of the County Zoning Code, for land in the un -incorporated area of the county, relying on certain Comprehensive Plan designations of each property, and similarities between the old zone of the property and the new zones of the Zoning Code as a guide. The Program to Implement specifically preserved any conditions of approval and site planning imposed through a rezone of a particular property approved prior to January 1, 1991, as a condition of the new zoning under the County Zoning Code, to the extent that such conditions were more specific or stricter than the development standards of the new zone. The old rezone file number and a symbol ("C") were appended next to the new zone designation on the official zoning map, for each site affected by such conditions. See County Resolution No. 85-0900, HE Findings, Conclusions and Decision AIE-1-00 Page 2 Program to Implement, p. 3 "Contractual Conditions", p. 9 "Cross-over Schedule II", and p. 10 footnote #3; and Donwood, Inc. v. Spokane County, 90 Wn. App. 389, 957 P.2d 775 (1998). The official county zoning maps list the zoning of the site as "B-3 7-84C". This designation provides public notice that the B-3 zoning of the site is subject to the conditions imposed by the 1984 rezoning of the site, in File No. ZE-7-84, which are more restrictive or specific that the development standards of the B-3 zone. Surrounding Conditions: Sprague Avenue adjacent to the site is designated as a Principal Arterial by the County Arterial Road Plan, and comprises a major commercial and traffic corridor through the Spokane Valley area of the county. McDonald Road, located several hundred feet west of the site, is designated as a Minor Arterial. The Major Commercial category extends along both sides of Sprague Avenue in the area, extending north as far as Main Avenue in the vicinity of the site. The land lying directly west, directly east and northeast of the site across McCabe Road, and the land lying directly south of the site across Sprague Avenue, is zoned B-3 and developed for commercial purposes. The land lying further to the north, along the east side of McCabe Road, and the land lying north and northwest of the site, are zoned Urban Residential -3.5 (UR -3.5) and developed with single- family homes at urban densities. Administrative Determination/Interpretation: The appellant requested an administrative interpretation from the County Division of Planning, pursuant to a letter dated 9-3-99 from the appellant's attorney, F. J. Dullanty, Jr., which letter was received by the Division on 9-9-99. The letter requested that the Division of Planning interpret the B-3 zone to include the dual operation of the business and residential use in the single -story residence. A letter dated 2-16-00 from the Division of Planning to Mr. Dullanty, responding to the appellant's letter, in the form of an administrative interpretation/determination, was mailed to the appellant and adjacent property owners on 2-17-00. Appeal: On February 29, 2000, the appellant timely appealed the administrative interpretation/determination to the Hearing Examiner. B. Procedural Information: Applicable Zoning Regulations: Chapters 14.300 (definitions), 14.412 (appeals), 14.416 (number of uses per lot), 14.504 (administrative interpretation), 14.512 (application procedures), 14.514 (notification), 14.623 (Business Zone Matrix), and 14.628 (B-3 zone), of the Spokane County Zoning Code. Hearing Date and Location: July 7, 2000, Spokane County Public Works Building, Lower Level, Commissioners Assembly Room, 1026 West Broadway, Spokane, WA. Site Visit: July 6, 2000 Notices: Mailed: June 20, 2000 Published: June 16, 2000 The legal requirements for public notice have been met. HE Findings, Conclusions and Decision AIE-1-00 Page 3 Hearing Procedure: Pursuant to Resolution No. 96-0171 and 96-0294 Testimony: Deanna Walter Division of Planning 1026 West Broadway Spokane, WA 99260 Stanley M. Schwartz Witherspoon, Kelley, Davenport etal 1100 US Bank Building Spokane, WA 99201 Items Noticed: Spokane County Generalized Comprehensive Land Use Plan, County Zoning Code, Program to Implement County Zoning Code, County Zoning Ordinance (now expired), County Code, and County Arterial Road Plan maps. County Resolution Nos. 96-0294 (Hearing Examiner Rules of Procedure), 96-0293 (ESHB 1724 procedures), 96-0171 (Hearing Examiner Ordinance), 91-1268 (amending Zoning Code, to permit expansion of single-family dwellings and accessory structures in the B-3 zone and certain other zones), and 85-0900 (adopting Zoning Code, and Program to Implement Zoning Code). Procedural Matters: (1) Certain items were included in the record by the Examiner at the public hearing, as described in the Examiner's letter to the appellant's attorney dated 7-6-00. Item #2 in such letter erroneously refers to a letter dated 5-17-94 from Dwight Hume; the correct date of the letter is 5-17-84. (2) The record was left open after the public hearing until 7-12-00 to allow the appellant an opportunity to comment on the items included in the record by the Examiner at the public hearing. A letter was timely submitted by the appellant's attorney on 7-12-00. (3) The record was also left open after the public hearing to give the Examiner an opportunity to review the applicable zoning and building permits issued for two other properties located along Sprague Avenue, upon which properties the appellant contended the County had permitted dual residential and business uses, in the B-3 or B-2 zone. The Examiner includes the following documents from the building permit files for such sites: (a) building permit, application, site plan, zone map and environmental checklist for permit #98011471 (off -premise sign) at 13519 East Sprague; and (b) building permit D-4070 (1959), building permit G-0140 (1966), building permit and application K-1997 (1973), building permit and application 81A-1061 (1981), building permit/application/plans for permit #95004436, building permit/application/plans for permit #95007759, at 9300/9302 East Sprague. (4) The Examiner also includes in the record the environmental checklist submitted for the 1988 off -premise sign permit issued for the current site, located at 7 North McCabe Road, which checklist was referenced in the appellant's brief. Items in Record: The record includes the documents in project file AIE-1-00 at the time of the close of the public hearing, the letter dated 7-12-00 from Stanley Schwartz, the items taken notice of by the Examiner, and the additional documents listed under "Procedural Matter" above. HE Findings, Conclusions and Decision AIE-1-00 Page 4 III. LAND USE ANALYSIS/ FINDINGS OF FACT & CONCLUSIONS OF LAW A. Approval criteria The County Hearing Examiner Ordinance requires the Hearing Examiner to hear and decide administrative appeals from decisions of the County Division of Planning. The Examiner's decision on an administrative appeal can be appealed only to superior court, by land use petition. See County Resolution No. 96-0171, Attachment A, Section 7 (a), 13 and 16. The Examiner's review authority in an administrative appeal is de novo. The Hearing Examiner Ordinance generally authorizes the Examiner to grant, deny or grant with such conditions, modifications and restrictions as the Examiner finds necessary to make a land use 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; and RCW 36.70.970. Zoning Code 14.504.000 authorizes the County Planning agency to make administrative determinations regarding application of the County Zoning Code to a particular property. Zoning Code Chapter 14.412 authorizes appeal of such determinations to the appropriate hearing body for public hearing and decision, and provides for further appeal to the board of county commissioners. These appeal procedures have been superseded to some extent by the County Hearing Examiner Ordinance and chapter 36.70B RCW, which allow only one open record hearing on land use actions. See County Resolution No. 96-0171, Section 16 of ordinance. A comprehensive plan is considered as a general blueprint for land use regulation by local governments. See Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 873, 947 P.2d 1208 (1997); Cathcart v. Snohomish County, 96 Wn.2d 201, 211-12, 634 P.2d 853 (1981); and RCW 36.70.340 and RCW 36.70.020 (11). 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); 873 P.2d 498 (1994). County Zoning Code 14.100.104 provides that the 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 states 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 indicates that it should be used as a reference source and guide for making land use decisions. See Comprehensive Plan, p. 2 and 71. The purpose and intent of the Zoning Code are, in relevant part, to encourage orderly growth of the county area, promote compatible uses of land, conserve and stabilize individual property values, provide desired levels of population density and intensity of land use, facilitate adequate levels of community services and utilities, conserve and protect amenities, and keep pollution at or below acceptable levels. Zoning Code 14.100.104. HE Findings, Conclusions and Decision AIE-1-00 Page 5 B. The administrative interpretation is not erroneous 1. Comprehensive Plan The site and adjacent land, south of Main Avenue, is designated in the Major Commercial category of the Comprehensive Plan. The land lying north of Main Avenue is designated in the Urban category. The Urban category is primarily a residential category of single-family, two- family, and multifamily uses, along with some neighborhood commercial, light industrial, and public and recreational facilities. The more intensive uses in the Urban category, such as light industrial and neighborhood commercial, are typically located along heavily traveled streets, with multi -family uses typically being a transitional use located between single-family residential and the more intensive areas. Comprehensive Plan, Section 1. The Major Commercial category of the Comprehensive Plan "... is intended to provide the opportunity for development of commercial uses, specifically community and regional shopping centers and commercial uses, directly related to major throughways." Comprehensive Plan, Section 6, "Purpose" and "Detailed Definition". The Major Commercial category includes the following relevant descriptions, characteristics and policies: Residential use in Major Commercial areas is not intended to be a high priority in this category and may be limited to preexisting uses. Certain residential uses, particularly multifamily developments, may be compatible through the use of proper screening and performance standards. The Major Commercial Category will be composed of three different types of commercial development: shopping centers, highway and arterial conunercial strips, and freeway commercial. The shopping centers are further broken down into three subcategories (neighborhood, community and regional) which relate to size of site, trade area to be served and type of tenants within the shopping center. The tenants range from supermarkets, drug stores and Laundromats to full - line department stores, highly specialized shops and professional offices. The consumer goods offered in strip development frequently differ from those found in shopping centers. Typical businesses found along a strip often include new and used car sales, fast food establishments, bars and fruit/produce stands. Freeway commercial areas are usually made up of more specialized commercial uses. Freeway interchange areas are usually oriented to single stops along the freeway for food, gas and lodging. Major Commercial areas feature high-intensity uses. The heavy automobile traffic and the related congestion may create pollution problems, especially along the commercial strip developments. The shopping center is a commercial development which is generally designed, developed, operated and controlled by a single ownership, with HE Findings, Conclusions and Decision AIE-1-00 Page 6 off-street parking facilities placed on the site to serve all of the establishments in the center. The centers may range in size from 4 acres with 30,000 square feet of leasable floor space to over 50 acres with 1,000,000 square feet of leasable floor space. Highway and arterial strip commercial areas will usually be made up of businesses on individual parcels clustered along a heavily traveled street or highway, each providing off-street parking. Shopping is not done by walking from one store to another, but rather is of a single purpose nature. Most commercial development will be on relatively flat land and buildings will be of a low profile. Paved parking, streets and man-made structures will dominate the site, with few natural features to be found. Landscaping, screening, lighting, signage and other architectural treatment will provide for aesthetically pleasing development. Pleasing aesthetic and architectural treatment of new development which eliminates or is generally not characterized by signage clutter, provides maintained landscaping, screens exterior storage, provides sufficient setbacks and screens parking areas, should foster improved land use compatibility with adjacent non-commercial uses and should support existing and attract new viable commercial development. Major Commercial areas require a full line of services and utilities. These include service by, or commitment to, sanitary and storm sewers, public water systems and underground utilities such as telephone, gas and electricity. Also available will be paved and lighted streets, parking lots, street maintenance, garbage collection and police and fire protection. In most cases intensive farming activities, mining and heavy industrial uses would be incompatible with Major Commercial uses. Likewise, most single-family residential areas and schools would not be compatible within the Major Commercial Category unless proper screening and performance standards are established. Goal 6.1: Promote development of commercial land in a manner which is complementary and compatible with adjacent land uses and the surrounding environment. Objective 6.1.a: Commercial developments should be buffered to protect adjacent areas. Objective 6.1.b: Provide for aesthetics of development along County Arterials and State Highways or Freeways. Decision Guideline 6.1.1: The best means of encouraging compatibility between commercial uses and adjacent land use categories will be accomplished by considering: a) orientation of the structures and/or facilities of the proposal to maintain or improve upon the aesthetics and energy efficiency of all HE Findings, Conclusions and Decision AIE-1-00 Page 7 areas affected by the proposal; and b) provision of buffering needs; and c) provision of landscaping needs. Decision Guideline 6.1.2: Buffering or spatial separation between proposed and existing uses should be required of a developer if determined that the proposed development's physical characteristics may be objectionable to future development on nearby lands. Decision Guideline 6.1.3: Provide for aesthetic quality of physical development and land use along rights-of-way for Arterials, State Highways and Freeways within the Urban Impact Area (UTA) of Spokane County as follows: a) The rights-of-way as described above would be intended to have an aesthetically pleasing view as seen by the traveling public and adjacent property owners when they are developed with commercial uses. b) Standards regarding landscaping, signage, storage and architectural treatment should be developed for uses located along these rights-of-way. Objective 6.I.c: Require developers to provide sufficient land for off- street parking at commercial sites. Objective 6.1.d: Encourage adequate circulation patterns and commercial areas and provide planned access to public transit. Decision Guideline 6.1.5: Before commercial proposals are approved they must: a) conform to plans, policies and regulations of County water, sewer, storm sewer, utility and special service districts; and b) identify and take steps to resolve adverse impacts upon existing water, sewer, storm sewer, utility, available andfuture energy resources, and special service district systems. Decision Guideline 6.1.6: Before approving proposed commercial developments, it should be determined that: a) the proposal has adequate on-site areas for existing and potential parking and storm drainage control: and b) the proposal considers the impact upon existing or planned transportation facilities and conforms to County transportation plans and policies, and c) the proposal considers access to existing and planned public transit and routes. Objective 6.1..f Encourage multiple -use centers. HE Findings, Conclusions and Decision AIE-1-00 Page 8 Objective 6.1.g: Encourage the clustering of commercial uses that are oriented toward the urban or regional market. Decision Guideline 61.1.7: Multiple -use clustering proposals complementary to existing and/or proposed commercial development will be positively considered when such proposals accomplish the intent of established County policies, standards and criteria. Some examples include: a) sharing physical facilities such as ingress and egress, parking facilities, sidewalks, signs, buffering and landscaping facilities; or b) providing cooperative amenities in landscaping and/or innovative design features. Decision Guideline 6.1.8: Appropriately buffered multifamily residential development compatible with existing and potential commercial activities may be permitted as transition between high-intensity uses (for example, commercial uses) and low -intensity uses (for example, single-family uses), especially when the commercial activities can provide or share waste energy. Decision Guideline 6.1.9: Clustering of uses, when it increases cost effectiveness of utilities and/or transportation will be the preferred commercial development pattern. Objective 6.1.j: Consider small-scale convenience stores and commercial enterprises adjacent to residential neighborhoods. Decision Guideline 6.1.11: Residential community shopping centers should be based to serve between 5 and 10 residential neighborhoods or 25,000 and 50,000 people. Decision Guideline 6.1.12: Regional shopping centers should be located to serve between 4 and 8 residential communities, or 100,000 to 200,000 people. Decision Guideline 6.1.13: Stores and commercial services established to serve residents within a few blocks' radius may be considered compatible, and therefore appropriate, when they are adjacent to residential land -use categories. Decision Guideline 6.1.14: Maintenance of any small-town tax base and economic vitality should be a high priority when making a land use decision. "Buffering" is defined by the Comprehensive Plan glossary as a "...technique of separating incompatible land uses by distance, changing density, landscaping, screening and/or physical features or structures". "Compatibility" means "... [when] two different land uses exist adjacent to one another in such proximity to one another that adverse impacts are insignificant". Plan. HE Findings, Conclusions and Decision AIE-1-00 Page 9 2. Current zoning The site, the land lying directly to the west and east, the land lying directly to the northeast across McCabe Road, and the land lying directly south of the site across Sprague Avenue, is zoned B-3 and being used for commercial purposes. The land lying further to the north, along the east side of McCabe Road, and the land lying north and northwest of the site, are zoned Urban Residential -3.5 (UR -3.5) and developed with single-family homes at urban densities. The UR -3.5 zone is intended to implement the Urban category of the Comprehensive Plan. Zoning Code 14.616.100. The site is already zoned Regional Business (B-3). As discussed above, such zoning is subject to the conditions of the 1984 rezone of the site that are more restrictive or specific than the development standards of the B-3 zone applicable to the site. The purpose and intent of the B-3 zone are stated in Zoning Code 14.628.100, as follows: The purpose of the B-3 zone is to provide for the location of a wide range of retail and service activities. This zone will implement the Major Commercial category of the Comprehensive Plan. The uses within this zone may often require large areas for customer parking, retail service, some outside activities, display and other commercial activities. The businesses locating within these areas often draw customers from the county at large and other outlying areas rather than from a more limited trade area. Further, it is the intent of this section to implement cornprehensive plan policies which encourage commercial development along Principal Arterials or highways and establish regional -serving commercial areas. General characteristics of these areas include paved roads and sidewalks, public sewer and water, and a full line of public service including manned fire protection and public transit accessibility. The B-3 zone is the most intensive commercial zone provided for in the County Zoning Code, and authorizes a wide array of intensive commercial uses. The development standards of the B-3 zone are generally more relaxed than those of the less intense business zones. A sign painting shop is permitted outright in the B-3 zone, subject to compliance with the general development standards of the B-3 zone. Zoning Code 14.623.020. A "dwelling unit" is permitted in the B-3 zone, subject to compliance with the special standards for such use set forth in Zoning Code 14.628.210 (1). See Zoning Code 14.623.020. This includes compliance with the general development standards of the B-3 zone (except those relating to maximum building height and public transit); a requirement that the dwelling unit(s) be located in a building or structure having a commercial or business use on the entire ground floor; a requirement that the dwelling unit(s) not comprise more than 50% of the total Gross floor area of any building; a requirement that the building height for a building with mixed residential and business use not exceed 60 feet; and a requirement that 800 square feet of common open space be dedicated for the use of the dwelling unit(s) residents for the first 12 units, with an additional 100 square feet per unit dedicated for 13 or more units, up to a maximum of 15,000 square feet. HE Findings, Conclusions and Decision AIE-1-00 Page 10 The Zoning Code also permits a "single-family dwelling, expansion or accessory structure" use in the B-3 zone, subject to the development standards of the B-3 zone. Zoning Code 14.623.020. "Accessory" is defined by Zoning Code 14.300.100, in pertinent part, as a " ... building, structure or use which is subordinate to, and the use of which is incidental to, that of the main building, structure or use on the same lot...". A "caretaker's residence" is a permitted accessory use in the B-3 zone, provided that it is limited to the duration of the need associated with the custodial, maintenance or overseeing of the owner's property, building and/or use. Zoning Code 14.628.220 (1). Zoning Code 14.300.100 defines a "caretaker's residence" as a "... manufactured (mobile) home, or an existing building or structure used as a residence, that is owned by the owner of the property it resides upon and is occupied by a bona fide employee of the property owner." The B-3 zone prohibits all uses not specifically authorized in such zone, including, but not limited to, general residential use, except as specifically permitted in the zone; general industrial use; public and semipublic use, except as specifically permitted in the zone; and general agricultural use. Zoning Code 14.416.000 prohibits more than one "primary use" per buildable lot, unless specifically permitted by the zone. Primary uses include residential, business/commercial, public and semi-public, industrial/manufacturing, and mining. All other uses are considered " secondary", and are allowed unless prohibited by the zone. Zoning Code 14.300.100 defines "primary purpose; primary use: principal use" as the "... predominant use to which the lot or property is or may be devoted and to which all other uses are accessory." The term "commercial use" is defined as "... [a]ny activity carried out for pecuniary gain or loss." A "dwelling" is defined by the Zoning Code as a "... building or portion thereof designed exclusively for residential purposes on a permanent basis as distinguished from a transient basis and which therefore does not include hotels, motels, dormitories, convalescent homes or accessory buildings or structures." A "dwelling unit" is defined as "... [o]ne or more rooms in a dwelling, designed, occupied or intended for occupancy as separate living quarters, with an individual entrance, cooking, sleeping and sanitary facilities provided within the dwelling unit for the exclusive use of one family maintaining a household." Zoning Code 14.300.100. A "dwelling, single-family" is defined as a "... building designed for long-teiiii habitation exclusively by one family, having complete living facilities provided within the dwelling unit for the exclusive use of one family maintaining a household. The term shall include manufactured homes and mobile homes." A "dwelling, multi -family" is defined as a "... building designed for occupancy by three (3) or more families living independently of each other within three (3) or more dwelling units." A "dwelling, two-family (duplex)" is defined as a "... building designed exclusively for occupancy by two (2) families living independently of each other within two (2) dwelling units." A "residence" is defined by Zoning Code 14.300.100 as a "... building or structure, or portion thereof, which is defined for and used to provide a place of abode for human beings, but not including hotels or motel units, or places of abode having no kitchen within each unit. A residence must include one or more dwelling units." HE Findings, Conclusions and Decision AIE-1-00 Page 11 3. Correctness of administrative interpretation/determination The brief submitted by the appellant indicates that the house on the site has continuously been used as a residence since it was constructed in 1954. The brief further stipulates that in September, 1996, the applicant's tenant, Mike Millhouse, moved into the residence; and that shortly thereafter, the tenant began operating a sign painting business in the attached garage of the residence. On December 1, 1998, an application was submitted to the County Division of Building and Planning to install a 50 -foot high, "off -premise sign", on the site. A building permit was issued for the "off -premise sign" on December 30, 1998. An "outdoor advertising display structure", or billboard, was installed on the site. The Staff Report notes that a required final inspection for the billboard's installation was not called for or conducted. An "outdoor advertising display structure" is a permitted use in the B-3 zone. See Zoning Code 14.623.020. The sign standards of the B-3 zone expressly allow certain "on -premise signs", but do not mention "off -premise signs". The Examiner finds that the intent of the building permit was to authorize the installation of an "outdoor advertising display structure", or billboard, on the site. This is also implied by the date of submittal of the application, on December 1, 1998, the date when a billboard ban became effective, at 2:11 p.m. The appellant contends that the County's allowance of a billboard on the site in conjunction with a residence is an indication that a commercial use and a single-family use can legally co- exist under the B-3 zoning of the site. The site drawing and the environmental checklist submitted with the application for the billboard indicate the presence of a house on the site. The permit materials for the billboard included in the record, including the environmental checklist, do not disclose the existence of the sign painting business being conducted in the attached garage of the residence on the property. The materials also contain no reference to the restrictions of the 1984 rezone on the B-3 zoning of the site. The appellant also contends that the use "single-family dwelling, expansion or accessory structure", listed as a permitted use in the B-3 zone under the Business Zones Matrix, permits a single-family dwelling, expansion of a single-family dwelling, and an accessory structure to a single-family dwelling in the B-3 zone. The administrative interpretation/determination conversely found that such permitted use is limited to the expansion of, or the addition of an accessory structure to, an existing single-family residence established as a legal non -conforming use in the B-3 zone. Considering the way many uses are listed in the Business Zones Matrix, with the type of use listed before the adjective describing the variety of the type of use, separated by a comma, the permitted use of"single-family dwelling, expansion or accessory structure" is equivalent and limited to "an expansion or accessory structure to a single-family dwelling". For example, a drive-in restaurant is listed as a "restaurant, drive-in" in the Business Zones Matrix. See Zoning Code 14.623.020. The limitation of the subject use to an expansion or accessory structure is strongly evidenced by reference to the Residential Zones Matrix, where "single-family dwelling, new" and " single-family dwelling, expansion or accessory structure" are listed as separate uses. See Zoning Code 14.605.040. This limitation is further supported by reference to the HE Findings, Conclusions and Decision AIE-1-00 Page 12 EA/GA/RS/F Zones Matrix, which lists "single-family dwelling" as a permitted use. See Zoning Code 14.637.020. The interpretation of the "single-family dwelling, expansion or accessory structure" by the County Division of Planning, as the public agency responsible for enforcement of the Zoning Code, is probably entitled to some deference by the Examiner under Washington case law. If the definition of a regulatory term is ambiguous, the Examiner is entitled to consult the legislative history to ascertain the intent of the term. The recitals in County Resolution No. 91-1268, which adopted the subject use as a permitted use in the B-3 zone, and the other legislative history found in the Division of Planning's file for adoption of such resolution, clearly indicate that the " single-family dwelling, expansion or accessory structure" use was added to the B-3 zone in 1991, to allow only the expansion of, or the addition of an accessory structure to, an existing, legal non -conforming, single-family dwelling. See, in particular, memo dated 8-8-91 from Gary Fergen of County Planning Department to Planning Commission members. The information supplied in the appellant's brief, if correct, indicates that the residence on the site, without regard to the sign painting business established in the attached garage, is a legal nonconforming use. This is because a single-family dwelling was a permitted use under the Agricultural (A) zone of the expired County Zoning Ordinance, which zoning was applicable to the site when the house was built in 1954. The Agricultural Suburban (AS) zone of the expired County Zoning Ordinance, applicable to the home when its garage was remodeled in 1960, also allowed single-family dwellings. See copies of building permits issued for residence. The information supplied in the appellant's brief, if correct, indicates that the single-family dwelling use on the site became a legal non -conforming use in 1994, when the zoning of the site was rezoned to the Commercial (C) zone of the expired County Zoning Ordinance. The Commercial (C) zone did not permit single-family residences. Legal non -conforming uses established in such zone, such as a single-family residence, could only be extended through the conditional use permit. The same limitation applied in the B-3 zone, until the adoption of County Resolution No. 91-1268. As indicated previously, the B-3 zone prohibits general residential use, except as specifically pennitted in the zone. The B-3 zone allows a "dwelling unit" as a permitted use, but only if it exists above the ground floor of a building devoted exclusively to commercial or business use, and meets the other requirements of Zoning Code 14.628.210 (1). See Zoning Code 14.623.020, symbol "P(1)" under B-3 zone classification, for "dwelling unit"; and 14.623.080, explanation under "P(1). The appellant contends that "single-family dwelling" is not a "dwelling unit", and is therefore not subject to the limitations of Zoning Code 14.628.210 (1). The Examiner agrees that a "single-family dwelling" does not meet the definition of a "dwelling unit" under Zoning Code 14.300.100. This is because a single-family dwelling is defined as a building designed only for residential use, and Zoning Code 14.628.210 (1) requires the dwelling unit to be within a building on the floor above a ground floor which only houses a commercial or business use. A single unit of housing could be installed on the 2"' floor of a building with a ground floor devoted only to commercial or business use, and qualify as a "dwelling unit" under Zoning Code 14.628.210 (1). However, a "single-family dwelling" is not a permitted use in the B-3 zone. HE Findings, Conclusions and Decision AIE-1-00 Page 13 The appellant also contends that the B-3 zone did not intend to preclude the mixing of commercial and residential uses on a buildable lot, since it allows the mixing of dwelling units and commercial uses in a building. This argument is not persuasive to the Hearing Examiner. The allowance in the B-3 zone for dwelling unit(s) located above the ground floor of a building, where the main floor is devoted exclusively to a commercial or business use, is logically intended to shield the dwelling unit(s) from the noise, traffic, air pollution, privacy invasions, etc. associated with the operation of intensive commercial uses on the ground. Residential development is generally discouraged in the B-3 zone and the Major Commercial category because of such impacts. This also explains why the dwelling unit(s) allowed in the B-3 zone, above a ground floor occupied exclusively by commercial or business uses, cannot exceed more than 50% of the total gross floor area of any building. The appellant further contends that the prohibition in Zoning Code 14.416.000, on allowing more than one "primary use" on a buildable lot, unless specifically permitted by the zone, was not intended to apply in the B-3 zone. The basis of this argument is that the Business Zones Matrix does not divide its uses into categories like the Residential Zones Matrix. The Residential Zones Matrix classified uses into "residential", "public and semi-public", and "agricultural, sivicultural, and agricultural -related". A "medical office" and a "business or professional office" are listed as a "public or semi-public use" under the Residential Zones Matrix. The appellant accordingly argues that the B-3 zone could not have intended to prohibit the location of a medical office, or a business or professional office, as a "public or semi-public use", in a multiple -use center with a "commercial use", such as a retail store. The Residential Zones Matrix does not list commercial uses, or make any attempt to distinguish a commercial/business use from a public/semi-public use. Classic commercial uses, such as a retail store, are not allowed in any zone listed in the residential zones matrix. The only residential zones where offices are permitted are the Urban Residential -12 (UR -12) or Urban Residential -22 (UR -22) zones, which are the most intensive residential zones provided in the Zoning Code. Offices are permitted in the UR -12 and UR -22 zones to provide some of the service needs generated by high-intensity land uses. Zoning Code 14.620.100 and 14.622.100. The EA/GA/RS/F Zones Matrix divides uses into "residential/ business/ service/ industrial', "public and semipublic", and "agricultural, sivicultural, and agriculture -related". Zoning Code 14.637.060. The Industrial Zones Matrix, like the Business Zones Matrix, does not divide uses up into categories. Zoning Code 14.629.020. The failure of the B-3 zone to divide use types up into neat categories, like the Residential Zones Matrix, does not compel a finding that the B-3 zone is exempt from the "one primary use per buildable lot" restriction contained in Zoning Code 14.416.000. If this were the case, the B-3 zone would allow a day care center or fire station, which are semi-public or public uses, to be developed on the same buildable lot as a department store, a commercial or business use. Offices, when located in the B-3 zone, clearly meet the definition of "commercial use" in Zoning Code 14.300.100. Accordingly, office uses can be developed with a retail store in the B-3 zone. The Examiner also notes that the Zoning Code only restricts the location of more than one primary use on a buildable lot. Different primary uses may be located side by side in the B-3 zone, or any other zone, on separate building lots. HE Findings, Conclusions and Decision AIE-1-00 Page 14 The plain meaning of Zoning Code 14.416.000 is that it applies to each zone recognized by the Zoning Code: Each zone must be evaluated separately, as to the application of Zoning Code 14.416.000. Zoning Code 14.604.160 gives the County Division of Planning broad discretion to administratively classify uses and mixed uses about which there is any question, by comparing them to identified uses in terms of intensity and character. The Division properly classified the existing single-family dwelling use on the site as "residential" and the existing sign painting shop on the site as "commercial" . Since the single -story residence structure on the site is being used for both commercial and residential uses on the same buildable lot, and compliance with Zoning Code 14.628.210 (1) has not been demonstrated, the dual use of the site for both residential and commercial purposes violates Zoning Code 14.416.000. The appellant contends that the County has already acknowledged the dual use of the site for commercial and residential purposes, by knowingly allowing a billboard to be installed on the site in 1998 along with the existing residential use. The appellant also cited the County's issuance of a permit for a billboard in 1998 for a property located at 13519 E. Sprague Avenue, zoned Community Business (B-2), on which a residence already existed. The B-2 zone contains similar restrictions on residential uses as the B-3 zone. Neither the building permit file for the current site, nor the building permit file for 13519 E. Sprague discuss whether the Zoning Code permits a billboard (" outdoor advertising display structure") and a residential use on the same buildable lot. Perhaps the Division of Building and Planning regarded the billboard use to be "secondary", rather than a primary use. It may be that no consideration to Zoning Code 14.416.000 was given in the allowance of the billboard uses, or an erroneous interpretation of the Zoning Code was made to allow the billboard. The appellant's argument might be more persuasive had the County allowed a classic commercial use, such as a retail store, to be installed on the same building site as a nonconforming single-family residence in either the B-3 or B-2 zones. The appellant also draws attention to the improvements existing on the property located at 9300 E. Sprague, where offices and apartments are allowed on the ground floor level of a buildingin the B-3 zone. See documents in record for such site, and photos on Exhibit B. The building permit file for 9300 E. Sprague indicates that prior to 1959 such property was developed for offices, under the Commercial (C) zone of the now expired County Zoning Ordinance. In 1959, a portion of the rear of the building housing the offices was remodeled for 3 apartment units, under the same Commercial (C) zone. In 1995, one of the existing apartment units was remodeled for an office, under the B-3 zone. The zoning history of the property located at 9300 E. Sprague Avenue does not help the appellant's case. The Commercial (C) zone expressly allowed an apartment for permanent residence within a store building, without the vertical floor restriction, the 50% total gross floor restriction on dwelling units, and the other restrictions on dwelling units contained in Zoning Code 14.628.210 (1). Zoning Ordinance, Section 4.10.030. The Zoning Ordinance did not restrict the number of primary uses per buildable lot. The dual uses on the property located at 9300 E. Sprague appear to represent legal non -conforming circumstances in the B-3 zone. The conversion of one of the apartment units on such site to an office in 1995 appears to have brought such property into greater conformance with the prohibition in the B-3 zone of dwelling units located on the ground floor of a building also used for commercial purposes. HE Findings, Conclusions and Decision AIE-1-00 Page 15 The Examiner makes no decision on whether the location of the sign paint shop on the site otherwise violates the conditions of approval of the 1984 rezone, since this issue was not addressed in the administrative interpretation or decision. The Examiner cannot help but observe that the development of a sign paint shop on the site appears to violate conditions of the 1984 rezone, including without limitation requirements that the site be developed generally in accordance with the concept presented in Dwight Hume's letter dated 2-6-84, that a specific site development plan be submitted, that access be prohibited to McCabe Road, that certain buffering and screening be provided along the north boundary, etc. The administrative interpretation/determination suggests that the sign paint shop could potentially be allowed through a home profession permit or through a home industry conditional use permit. The Examiner notes that a home profession is not listed as a permitted accessory use in the B-3 zone, and a home industry use is not allowed as a conditional use in the B-3 zone. IV. DECISION Based on the Findings of Fact and Conclusions of Law stated above, the above appeal is hereby denied, and the administrative interpretation/determination is hereby affirmed. HE Findings, Conclusions and Decision AIE-1-00 Page 16 DATED this 17th day of August, 2000. SPOKANE COUNTY HEARING EXAMINER /jac) • Michael C. Dempsey, WSBA 23 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 administrative appeal 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 on August 17, 2000. The date of issuance of the Hearing Examiner's decision is therefore August 21, 2000 counting to the next business day when the last day for mailing falls on a weekend or holiday. THE LAST DAY FOR APPEAL OF THIS DECISION TO SUPERIOR COURT BY LAND USE PETITION IS SEPTEMBER 11, 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 AIE-1-00 Page 17