AIE-6-99
RECEIVED
+
JAN 2 2000
SPOI~:ANE COUNTY HEARING E R
SPOKANE COUMYINGNiB
RE Appeal of an Adrmnistrative Determination )
Interpreting Rezone Conditions of Approval ) FINDINGS OF FACT,
Appellant Foursquares Va11ey Church ) CONCLUSIONS OF LAW,
File No AIE-6-99 ) AND DECISION
I. S Y OF APPEAL AND DECISION
Appeal: Appeal of an administrative determination by the County Division of Buildmg and
Plarunng, interpretang a pnor rezone as linutwg srte development solely to condomuuums, and
requinng that a change of condihons apphcahon be submitted for proposed development of the
site for a church
Decision: Deny appeal and affirm administrahve deternunahon.
The Heazzng Examiner has reviewed the admnnistrative appeal and the evidence of record,
and hereby adopts the followmg Flndings of Fact, Conclusions of Law and Decision-
II. BACKGROUND/FINDINGS OF FACT
A. GeneralInformation:
Appellant: Foursquares Valley Church, c% Tom Hanulton, Pmes Sewer Development, Inc ,
P. O Box 14686, Spokane, WA 992140686
Property Owner: Pines Sewer Development, Inc, c/o Tom Hamilton, P. O Box 14686,
Spokane, WA 99214-0686
Legai Description of Site: Assessor's Parcel No 45091 9001
Site Address: 3001 North Pines Road, Spokane, WA
Site Location: Generally located along the west side of State Route No 27 (Pmes Road),
160 feet north of Grace Avenue, in the NE '/4 of Section 9, Township 25N, Range 44 EWM
Zoning: Urban Residential-22 (LTR-22) zone Such zotung is subject to the condihons of
approval attached to the Spokane County Hearmg Exammer Committee decision dated 5-15-80
in Current Plammmg File No ZE-158-79 The site is also located mside the Aquifer Sensitive
Overlay zone and the Public Transportation Benefit Area designated by the County Zoning Code.
Comprehensive Plan: Urban category The property is also designated inside the Aquifer
Sensitive Area, Pnonty Sewer Service Area and the Urban Impact A.rea designated by the Plan
HE Findings, Conclusions and Decision AIE-6-99 Page 1
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IUGA: The site is located mside the mtenm urban growth area boundanes designated by the
County pursuant to the State Grrowth Management Act
Environmental Review: The administrative interpretahon and the appeal are considered
exempt from environmental review under the County's Local Environmental Ordinance and the
State Environmental Pohcy Act
Site Description: The site is approximately 7 64 acres, generally flat and rectangular m
shape The property slopes gradually down from north to south, except for 15-20°lo slopes on the
southerly edge of the property adjacent to Grace Avenue The site is undeveloped, was recently
graded, and a concrete slab and foundarion have been installed for construction of a church
Area Road Network: State Route No 27 (Pines Road) in the area is a 4-lane state lughway
improved with curb and sidewalk. State Route 290 (Trent Avenue) hes approxunately '/4 nule
north of the subject property, while the Interstate 90/SR 27 freeway interchange hes less than a
nule to the south. Mirabeau Parkway, previously known as Euchd Avenue, extends easterly
from SR-27 opposite the northeast corner of the site Such road has been paved to a 3-lane
Artenal Road secrion from SR 2? all the way southeasterly to Indiana Avenue 1Nlontgomery
Avenue, designated as a Muior A.rtenal by the County Artenal Road Plan, extends westerly from
SR-27, just north of the I-90/SR 27 mterchange. Indiana Avenue, also designated as a Mmor
Arterial, extends easterly from SR 27 opposrte Montgomery Avenue
Surronnding Conditions: The land lying unmediately north of the site, west of SR-27, is
zoned Urban Residenhal-3 5(UR-3 5) and is developed with an elementary school Furkher to
the north the land is vacant, except for 2 sets of railroad tracks The land lyuig south and west of
the site is zoned UR-3 5 and developed with single-family homes on urban-sized lots. Further to
the south, the properties abuthng the west side of SR-27 are zoned UR-22 and mostly developed
with multi-fanuly housing. The land located northeast of the site, at the northeast corner of
SR-27 and Muabeau Parkway, is zoned UR-22 and undeveloped Further to the east, north of
1Vbrabeau Parkway, the land is zoned Light Industnal (I-2) and undeveloped
The land 1}nng east of the northerty 2/3 of the site, at the southeast comer of SR-27 and
Mirabeau Parkway, consists of a 15-acre parcel recently developed for an industnal office park
Such land is zoned Industnal Park (I-1), pursuant to a 1998 rezone approved by the Heanng
ExaYniner. See Hearing Exannner decision da.ted 11-23-98 in File No ZE-5-98 Directly east of
such parcel, along the south side of Mirabeau Parkway, is found a 17-acre stnp of undeveloped
land In 1999, such land was rezoned to the I-2 zone by the Examiner, along with 90 non-
contiguous acres located further to the south, for a project known as Muabeau Point.
Development of the 17-acre strip is linuted to uses allowed in the I-1 zone See Hearing
Examiner decisions dated 8-17-99 and 8-18-99 in File No ZE-37-96
The land lyulg east of the southerly 1/3 of the site is zoned UR-22 and improved with a
school distnct admuustrative budding Further to the south, along the east side of SR-27, the
land is zoned UR.-22 and is undeveloped or unproved with multi-family housing and offices
Much of the land lying easterly of the Zonmg fronting the east side of SR-27, east and southeast
of the site, is zoned RR-10 Tlus mcludes 88 acres of undeveloped land owned by the
Department of Natural Resources in a nature conservancy status, and 44 acres of land whlch is
HE Findings, Conclusions and Decision AIE-6-99 Page 2
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undeveloped except for faciuhes left over from a defunct zoo See Hearing Exanuner decisions
dated 8-17-99 and 8-18-99 in File No ZE-37-96
Zoning History of Site: In 1978, the County Hearing Examiner Committee (HEC) demed,
without prejudice, an application to rezone the current srte from the Agricultural (A) zone to the
Multiple Family Suburban (1VTS) zone, for the purpose of developmg 172 mulh-fanuly
apattments units, under the now expired County Zoiung Orduiance The decision inexplicably
contained conditaons of approval for the proposed zone change See HEC Fmdings and Order
entered 11-17-78 in File No. ZE-131-78
In July, 1979, Shogren Co submitted an apphcation to rezone the srte from the Agncultural
(A) to the Multiple Fanuly Suburban (1VFS) zone, for the purpose of developmg condomuuums,
under the now expued County Zoiung Ordi.nance. On November 20, 1979, the HEC approved
the rezone proposal The site plan approved by the HEC on the same date illustrated development
of the site for a 2-story, 80-unit housing pmject See apphcahon dated 7-13-79, staff report dated
11-15 -79, srte plan approved by HEC on 11-20-79, and HEC Fmdings and Order entered on
11-20-79, Nohce of Acnon and Affidavit of Fublication in File No ZE-158-79
The HEC's Findings and Order dated 11-20-79 in File No ZE-158-79 found that the land
in the area was suitable for the proposed condomiiuum use and that such proposed use was
compahble with existmg uses in the area The finduigs mdicated that some adjouring landowners
expressed approval of the proposed land use, while others expressed disapproval. The findings
stated that the multi famrly use i.r being requested because the proposed use i.s condominiums
which are only allowable withtn the Two-Family Residenhal zone (two condominiums) and/or
Multt famaly (more than two condomrniums) " The decision also estabhshed the following
conditions of approval, on page 2:
C ORDER
The Hearing Examiner Committee, pursuant to the aforemenhoned, finds
that the applicahon of Denras Shogren for a Zone Reclassificanon as
described in the appltcanon should be approved
Spectal condttions or contrngencies applted to motion •
1 Approval is granted for the sole purpose of condomrnzum development
as presented by the sponsor, Mr Shogren
2 I, f for any reason thr.s project cannot be constructed, the zoning of the
property shall be reverted to the previous Agricultural zone
3 That the sponsor in conjunctton wcth the owner of the property record
in the Spokane County.4uditor s Ofjtce prior to a change in the zomng
map by staff; a statement to run with property whtch is the subject of
the zone change appljcanon that the zone change is invalid, and the
property shall automatrcally revert to the pre-exrshng Agriculhrral
zone classification if the property rs sold by Mary F. Calistro to
another party prior to full development pursuant to the applacahon
HE Findings, Conclusions and Decision AIE-6-99 Page 3
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Following the above language was a list of conditions from various agencies, mcluding
the follovving condition under the "Zoning" agency•
fi ZONING
3 The applicant shall develop the subject property generally in
accordance withrn the concept presented to the Hearing Examiner
Commattee Minor vanattons when approved by the Zonang Admintstrator
wild be permitted, including but not hmited to the following changes
Building locataon, landscape plans, and general allowabde uses of the
permitted zone All vanations must conform to regulations set forth rn the
Spokane County Zonrng Ordinance The original tntent of the
development plans shall be maintained
On March 24, 1980, the owner of the srte at the tune, Mary Calistro, submitted a letter
requesting a change of conditions to the above decision The letter specifically requested that
condition C 2 of the HEC's 1979 decision be deleted, relatmg to reversion of the new zoning of
the srte to the Agncultural (A) zone if the project could not be constructed. The letter further
requested that the zone change from Agncultural to Mulh famrly Condomrniums approved
for Mr Shogre» be retained and not reverted to ggncultural or tnvalydated as per article 3 of C
Order", and in the final paragraph stated " I request the zoning rerriain 'Multi Famrly
condominiums' and request a change of `condttrons' page 2, anccle 3 of C Order rn order that I
may sell without further loss. "
The Cahstro letter fu.rther explained that the previous apphcant (Shogren) had not been
able to obta.in financing for the project, that Mary Cahstro's contract to sell the property to
Shogren had been cancelled, and that changes in the order were needed so that the land could be
sold by Calistro See letter dated 3-24-80 from Mary Calistro in File. No ZE-158-79.
The staff report submitted for the change of conditions apphcation construed the Cahstro
application as one intended to delete cond2tions C 2 and C 3 of the previous order, and also to
delete the words "as presented by the sponsor, Mr Shogren" from condition C 1 See staff report
dated 5-8-80 m File No ZE-158-79
On May 15, 1980, the HEC entered Findings and Order in Ffle No. ZE-158-79 approving
the application of Mary F Calistro for a change of condibons " as descrzbed in the
apphcation " The decision descnbed the change of condrtions proposal as follows
The sporrsor, Mary F Calistro is requesnng approval of a change of
conditions, File No ZE-158-79, to amend Conditaon No 1 to be reworded
to read "Approval i.s granted for the sole purpose of condominium
development and delete " as presented by the sponsor, Mr Shogren "
Also to delete Condttions 2 and 3 of the orzg7nal approval
On March 19, 1984, Mary Cahstro apphed for a change of conditions to change the
proposed development of the site " from condominiums to apartment stte to allow 2 phases
#1 for 84 units pliase #2 when sewer avaclable or onsite system anotheY 88 units tota1172 units "
The explanation given for the request was to "Remove condomintums required to apartment
HE Findings, Conclusions and Decision AIE-6-99 Page 4
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unats" See apphcation dated 3-19-84 in File No ZE-158A-79 A site plan contamed m File
No ZE-158A-79 illustrated the proposed development of a 172-unit apartment complex
On August 9, 1984, the HEC denied the change of condihons request in File No
ZE-158A-79. Among other finduigs of fact explaiiung the reason for denyuig the proposal, the
decision included a finding of fact that the proposal for a 172-unit apartment complex was
devoad of any concept used for the orzgrnal zoning approval in 1979 and no attempt has been
made by the sponsor to proceed wrth the condominium project which indicates no compelling
reason for the ZonYng Heanng F.xaminer Commrttee to allow the requested change of
conditions " The decision also found that " the approval tn 1979 for an 80 Unit Condomznium
project is realt.stic in light of the adjacent stngle family residentral development to the west and
south of this project " See HEC Fmdings and Order dated 8-9-84 in File No. ZE-158A-79
The HEC's 1984 decision in Ffle Aio. ZE-158A-79 was appealed to tUe Board of Counfiy
Commissioners At the pubhc hearmg held by the Board, the apphcant, Mary Cahstro, requested
that the change of conditions applicahon be modified to allow the Board to consider a revised
proposal to develop an 80-wut apartment complex, under an "unsubnutted site development
plan", wlule deleting the condinon m the previous order reqw.rmg condomuvum development
The Board denied such request, finding that the application had been "substantially changed"
from that presented to the HEC. Pursuant to theprovisions of Hearing Examiner Committee
Orduiance, the Board remanded the revised applicahon back to the HEC for consideration as a
new applicahon. See Commissioners Document No 840898, the Decision, Finduigs of Fact
dated 10-16-84 in File No. ZE-158A-79
In rej ectmg the change of condition application ui File No ZE-158A-79, the Board of
County Commissioners adopted a specific finding of fact stahng "That parcel of property
included withtn ZE-158A-79 was appraved rn 1979 with a specific site development condataon
requiring that the site be developed for the sole purpose of an 80 untt condomrnium
development" See Commissioners Document No. 84-0898, adopting Decision, Findings of Fact
dated 10-16-84 in File No. ZE-158A-79. Later in 1984, a new owner (Ernest Quinn) acquued
the site, as a result of a foreclosure on Mary Cal2stro's interest See letter dated 8-3-93 in File
No ZE-158-79
Effective January 1, 1991, the zorung of the site was reclassified to the UR-22 zone of the
County Zorung Code, pursuant to the Program to Implement the Spokane County Zoiung Code
This was part of a county-wide effort to convert the old zones of the Zomng Ordinance to the
new zones of the County Zoning Code, usmg the Comprehensive Plan, the old zone and other
factors as a guide The Program to Implement specifically preserved any conditions of approval
and site plaruung unposed through a previous rezone of a reclassified properly as a condition of
the new zorung, to the extent that such con(htions were more specific or stncter than the
development standards of the new zone The old rezone file number and a symbol ("C") were
appended next to the new zone desrgnation on the official zorung map, for each site affected by
such conditions See County Resolution No. 85-0900, Program to Implement, p. 3"Contractual
Conditions", p 9"Cross-over Schedule II", and p 10 footnote #3; and Donwood, Inc v Spokarne
County, 90 Wn App 389, 95 7 P Zd 775 (1998)
HE Findings, Conclusions and Decision AIE-6-99 Page 5
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In 1993, an inquuy was made by the estate of a subsequent owner of the site to the
County Planning Department, indicahng an awareness of the HEC's 1979 rezone for
condomuuum development, but not of the HEC's 1980 decision deletmg the condition requumg
a reversion to the Agncultural (A) zomng if the property was sold before beuig developed for
condomiruums County staff provided the esta.te with a copy of the 1980 staff report and the
HEC's change of conditions decision m File No ZE-158A-79 See letter dated 8-3-93 from
Robert Waldo to Steve Horobiowsla, and letter dated 9-28-93 from Steve Horobiowski to Robert
Waldo
Administrative Determination: A request for admuustrahve interpretahon was made to the
County Division of Building and Planiung by the appellant's representahve on November 17,
1999 The request indicated that the subject property had been sold for construchon of a church.
The request contended that the zonuig of the site is currently "mnlri-family, wrth a condihonal
use for condomuuums", and that a church is allowed m the UR-22 zone applicable to the site
The request further advtsed that the appellant would lilce to construct a church on the site, and
had apphed for pennuts from the County to allow such construction. See letter dated 11-17-99
from James S Black to James Manson
Pursuant to a letter dated November 18, 1999, the County Division of Building and
Plaruung issued an admuustrahve deterlninahon to the apphcant's agent, indzcatuig that
development of the site was restncted to an 80-uiut condominium development under the
restnctive conditions unposed by the HEC m File No ZE-158A-79 See Ietter dated 11-18-99
from Jeffrey Forry to James S Black in File No. AIE-6-99
On December 2, 1999, the appellant, Foursquares Valley Church, subnutted a timely
appeal of the admirustrative determination to the Exanuner. See Appeal to the Hearing Exanuner
dated 12-1-99 signed by Mischelle Fulgham The appeal contested the conclusion in the
admuustrative determination that a church could not be constructed on the site
B. ProceduralInformation:
Applicable Zoning Regulations: Chapters 14 402 (amendments), 14 412 (appeals), 14 504
(administrative interpretation), 14 508 (nonconfornung prvvisions),14.512 (application procedures),
14 514 (nohfication), 14 605 (residential zones matnx) and 14 622 (LJR-22 zone) of the Spakane
County Zoiung Code.
Hearing Date and Location: January 12, 2000, Spokane County Public Works Building,
Lower Level, Commissioners Assembly Room, 1026 West Broadway, Spokane, WA
Notices: Mailed. November 16, 1999 The legal requirements for public notice have been
met
Hearing Procedure: Pursuant to Resolution No 96-0171 and 96-0294
HE Findings, Concluszons and Decision AIE-6-99 Page 6
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Testimony:
Ron Hand Jeff Fony
Division of Current Planning Division of Bwld.ng & Code Enforcement
1026 West Broadway I026 West Broadway
Spokane, WA 99260 Spokane, WA 99260
11hschelle Fufgham Danght Hume
717 West Sprague, Smte 1600 422 West Riverside, Suite 722
Spokane, WA 99201 Spokane, WA 99201
Tom Hamilton
P O Box 14686
Spokane, WA 99214
Items Noticed: Spokane County Generalized Comprehensive Land Use Plan, County
Zomng Code, County Zomng Orcunance (now expired), County Code, (revising intenm
regulations for County IUGAs), 97-0321 (adophng mterim regulations for County NCrAs),
97-0134 (estabLstung and delineahng NGA boundaries), 96-0294 (Heanng Examiner Rules of
Procedure), 96-0293 (ESHB 1724 procedures), 96-0171 (Heanng Exammer Orduiance), and
85-0900 (adopting Zomng Code, and Program to Implement Zomng Code) Heanng Exanuner
Committee Orduiance (County Resoluhon Nos 78-I027, 79-0338 and 80-0939, etc ) Final land
use decisions referenced m decision and staff report
Items in Record: The record includes the testimony and documents subnutted at the pubuc
heanng, the documents contained m File Nos ZE-158B-79 and AIE-6-99, the documents added
to the record at the pubhc heanng by the Exanuner m File Nos. ZE-131-78, ZE-158-79 and
ZE-158A-79, the official County zorung map foF the site; and the items taken notice of by the
Examiner Shortly before the January 12, 2000 pubhe hearing, the Division of Current Plarmng
d.ivided the file previously designated "AIE-158A-79" into File No AIE-6-99 (current
administrahve appeal) and File No. ZE-158B-79 (pending change of condihons) The County
Division of Building and Planiung was recently split lnto the County Division of Current
Plaiuung and the County Division of Bi.ulduig and Code Enforcement
Procedural Matter: A change of condihons apphcabon was subnutted for the srte by
Mischelle Fulgham/'I'om Hamilton, as apphcant, on 12-2-99 in File No ZE-159A-79. The
purpose of the apphcahon was to remove the restnction on development of the site to an 80-unit
condonunium development found to be apphcable m the administrative deternunation Such
application was determined to be "counter complete" by the County Division of Building and
Planning on 12-15-99 A nohce of hearmg was issued to hear such applicarion in a consolidated
heanng with the adnurustrative interpretation before the Exammer on January 12, 2000
On 12-28-99, the Exanuner was advised by Drvision staff that the change of condihons
application could not be heard on January 12, 2000, because it was not in compliance with the
County's ESHB 1724 procedures (adopted under County Resolution No 96-0293) requued to be
followed before heanng an application See E-mail memo dated 12-28-99 from Ron Hand to
Gary Oberg By letter to Mischelle Fulgham dated December 29, 1999, the Examiner ordered
that the heanng on the change of conditions apphcation be stncken The appellant objected to
such ruling at the public heanng, but was overruled by the Examiner
HE Findings, Conclusions and Decision AIE-6-99 Page 7
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III. LAND USE ANALYSIS/
FINDINGS OF FACT & CONCLUSIONS OF LAW
A ADnroval cntena
Zoning Code 14 504 000 authonzes the County planning agency to make admuustrative
determinahons regardmg application of the County Zoiung Code to a panccular property.
Zonulg Code Chapter 14 412 authonzes appeal of such detemvnations to the appropnate heanng
body for public heanug and decision, and provides for further appeal to the board of county
commissioners. These appeal procedures have been superseded by the County Heanng
Exammer Ordinance and chapter 36 70B, wluch allow only one open record heanug on land use
actions See County Resolution No 96-0171, Sechon 16 of ordinance
The County Heanng Exammer Ordmance requues the Heanrig Exammer to hear and
decide admuustrahve appeals from decisions of the County Division of Builcimg and Plaruung,
as well as change of condihons applicahon relating to a pnor rezone The Examiner's decision
on an admuustrative appeals can be appealed only to supenor court, by land use petihon See
County Resoluhon No 96-0171, Attachment A, Sechon 7(a), 13 and 16 The Examiner's
review authonty in an admuustrative appeal is de novo The Heanng Exammer Orduiance
generally authonzes the Exammer to grant, deny or grant wrth such conditions, modificatrons
and restnchons as the Exammer finds necessary to make a land use apphcation compatible with
the Spokane County Generalized Comprehensive Plan and apphcable development regulahons
See County Resolution No 96-0171, Attachment "A", paragraphs 7(d) and sechon 11, and
RCW 36 70 970
A comprehensive plan is considered as a general blueprint for land use regulation by local
governments See Crtraens for Mount Yernon v. City of Mount Yernon, 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)2
and RCW 36 70 340 and RCW 36 70 020 (11) Where a comprehensive plan conflicts with
zoning regulations, zonuig regulations wnll usually be construed to prevail See YYeyerhaeuser v
Pierce County, 124 Wn 2d 262 43 (1994), 873 P 2d 498 (1994)
B The admirustrative interuretation is not erroneous
The appellant first contends that the Heanng Exammer Committee's 1980 decision
regarding the Calistro change of conditions apphcation did not confine development of the
site to condominiums The appellant asserts that the Heanng Exammer Committee (HEC)
simply approved the change of condrtions "as descnbed m the applicanon", and that the Cahstro
application did not intend to limit site development to condominiums only In support of tlus
argument, the appellant submitted a letter from Mary Calistro dated 11-22-99, which asserted
that she had only requested that the property remain multi-family and not revert to agnculture
The letter also contends that lt was never assumed, nor requested, that "only" condomuuum use
be allowed, and that the "complete understanding" was multi-fanuly See exlubit A to Appeal
of Admirustrative Decision dated 12-1-99, and HEC dec2sion entered 5-15-80 m File No
ZE-158-79
HE Findings, Conclusions and Decision AIE-6-99 Page 8
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Mary Calistro's letter dated March 24, 1980 in File No ZE-158-79 unambiguously
requested the zoiung of the site to remain "Multi-Faimuly condomuuums", and deletion of
condihons C 2 and C 3 of the HEC's 1979 decision. The HEC's 1980 order on the change of
condihons specifically descnbed the proposal as one to delete condiUons C 2 and C 3; and to
reword condition C 1 to delete the words . as presented by the sponsor, Mr Shogren", but to
retaui the preceding words of condition #1 stating "Approval i.s granted for the sole purpose of
condominiums" This is consistent wrth the staff report The HEC's deletion of the words " as
presented by the sponsor, Mr Shogren " from condition C 1 actually appears to go beyond what
is being requested by Mary Calistro in her letter, but was to her benefit.
It is very clear to the Exanuner that Mary Calistro's March 24, 1980 letter, on its face, did
not request that the 1979 "condonunium only" restnction be removed Her belated letter to the
contrary, submitted 19 years after the fact, cannot change this The HEC's 1980 order preserved
the "condominiums only" condinon in condition C.1, except for the deletion of the words "as
presented by the sponsor, Mr Shogren" The decision found that a11 other condhhons of the
previous order were to remaui in full force and effect. The HEC's descnption of the "proposal"
in rts 1980 decision represents its interpretahon of the "apphcation" or "proposal" it was
consldenng at the public heanng Such deseription must be read together with the order porhon
of the decision, which approved the change of cond.ifiions as descnbed in the applacatzon "
Such descnphon represents the precise action taken by the HEC Such order was not appealed
by Mary Calistro, and is entitled to resjudicata effect
The appellant next contends that the "condomuuum only" restnchon m condition C.1 of
the HEC's 1979 order is ambiguous, due to a condition of approval on page 4 of the same order
wluch allowed "nvnor vanabons" to the 80-unit condomuuum project proposed in 1979 to be
approved adm=strarively by the County zoning agency, " including but not limited to
buildcng locatron, landscape plans and general allowable uses of the permttted zone " The
Multiple Fanuly Suburban (1VFS) zone at the time did allow such uses as mulbple-famfly
residential bwldings of 3 or more umts, churches, nursmg and retirement homes, schools,
hospitals, etc See 1979 County Zonuig Ordinance
The appellant crted the case of Parry v Hewitt, 68 Wn App 664, 847 P 2d 483 (1992)
for the proposition that ambigwties tn the HEC's order must be construed agauist the County, as
drafter of the document Such case relates to mterpretation of a pnvate resfinchve covenant, and
does not apply to the current cucwnstances More analogous is case law addressing the
construchon of local zorung ordinances, which give great weight to the construction of an
ordinance by the officials charged with rts enforcement This is not the case where the ordmance
is so ambiguous or vague that it fails to provide fau warmng of its prohibihon or contam
ascertainable standards sufficient to protect against arbitrary and discretionary enforcement in the
particular circumstances See Development Servaces ofAmenca v City of Seattle, 138 Wn 2d
107, 979 P 2d 387 (1999), Rural Resrdents v Kitsap County, 95 Wn App 383 (March, 1999),
and Seattle First Nanonal Bank v Snell, 29 Wn App 500, 629 P 2d 454 (1981)
The Examiner's irubal unpression is that the allowance m the HEC's 1979 decision for
administrative approval of minor vanations for "general allowable uses of the pemutted zone" is
the result of cazeless drafhng by the HEC The HEC was compnsed of a rotahng division of the
County Planrung Comrrussion, made up of lay persons See County Resolution Nos 78-1027,
79-0338 As collateral evidence of this, the Exatniner points to the HEC's 1978 decision
HE Findmgs, Conclusions and Decislon AIE-6-99 Page 9
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denying the apphcahon to rezone the slte from the Agncultural (A) zone to the Mulhple Family
Suburban (NiFS) zone, for the purpose of developuig 172 multi-family apartments umts Such
decision inexplicably contauied conditions of approval for the proposed zone change, mcluding
the same condition providing for minor variations found in the HEC's 1979 order See HEC
Findmgs and Order in File No ZE-131-78 The staff reports for both the 1978 and 1979 achons
recommended adophon of such condition. The condihon appears to have been extracted from
such reports by the HEC and added respectively, lilce a mantra, to rts 1978 and 1979 orders,
without considering its consistency vcnth the more luluhng achon taken by the HEC zn such
orders
Construing the language authonzing admuustrative approval of muior vanations m the
1979 order together with the more specific restncnon linuting development of the site to
condomuuums, it does not follow that the order gave the Counfiy planrung agency authonty to
administratively approve a church on the sub}ect property The subject condihon relahng to
muior vanations, which is set forth ln full m Section II of tlus decision, reqlures the apphcant to
develop the subject property generally in accordance within the concept presented to the
Hearrng Examiner Committee and also requires that the " onginal intent of the development
plans shall be maantazned". The onginal mtent of the development plans and the concept
presented to the HEC for the 1979 rezone was for development of an 80-umt condominrum
project The HEC's order delehng the words " as presented by the sponsor, Mr Shogren"
from condition #1 of the 1979 order only removed a requirement that such condomuuum project
had to be designed in conformance with the site development plan approved for the 1979 rezone
on November 17, 1979
At most, the "nunor vanation" condrtion, construed as a whole, arguably allows
admuustrative approval of a revised plan to develop the property for a sunilar mulh-family use,
at a sunilaz densrty and surular design concept The MFS zone expressly allowed, as mulh-
fanuly residenhal buildings (3 or more umts) for permanent tenants, (1) apaitment houses of all
types, provided 65% of the land is left m open space and a maxunum density of one dwelling
unit per 2,000 square feet of land area was allowed, and (2) court apartments for permanent
tenants, at a maximum densrty of one urut per 3,000 square feet, with 65% open space The
UR-22 zone currently permrts multi-family dwellings such as apartments The construchon of a
church on the site with a completely new site plan certainly does not fall within the onginal
intent of the development plans, or the concept presented to the Hearing Examiner Committee
for the 1979 rezone See srte plan dated 9-23-99 in File No ZE-158B-79
Section 14 504 040 of the County Zorung Code currently lists a number of alterations or
additions to the site development plan approved for a pnor rezone that are considered minor in
nature, and wluch can be approved admmistratively by the County planiung agency, " if the
changes are not contrary to the findings and conditions" of the pnor rezone Such minor
vanations mclude, in pertment part, less than a 10% mcrease in floor area of the total floor area
of all buildings on the approved srte development plan and the add.ition meets other listed
requirements of the underlyuig zone, muior adjustments to buildmg or structure locations,
provided that the density or intensity of use is not increased and does not sigruficantly affect
adjacent uses, and changes in use for a zone reclassification, provided that documentarion is
submitted that the unpacts and intensrty of the proposed use are equal to or less in nature than the
onginally approved use or the surroundmg land use as determined by the Zorung Admimstrator
for the County
HE Findings, Conclusions and Decision AIE-6-99 Page 10
•
Section 14.504.040 of the County Zoning Code, by its express terms, does not ovemde the
conditions unposed on the 1979 rezone, as modified by the HEC's 1980 change of condihons
decision. Such condihons of approval also survived the 1991 reclassification of the zoning of the
site to the Urban Residenhal-22 (UR-22) zone, to the extent the conditions and site planrung
were more confuung or stncter than the development standards of the UR 22 zone The zonuig
of the site on the County's offcial zoiung map, i e"UR 22158 79C" for parcel 1 9001,
specifically alerted those consultuzg such map as to the existence of special rezone conditions in
the previous rezone file for the site See County Resoluhon No 85-0900, Program to Implement,
p 3"Contractual Conditions", p 9"Cross-over Schedule II", and p 10 footnote #3, Donwood,
Inc. v Spokane County, 90 Wre App 389, 95 7 P 2d 775 (1998), and copy of official zonuig map
for N'/z-09-25-44 in File No ZE-155B-79
As discussed above, development of a church on the site conflicts wrth the condihons of
approval of the 1979 rezone, as modified by the HEC's 1980 order. This ovemdes the allowance
for admirustrative approval of mmor changes m use Lsted in Zorung Code 14 504 040 (5). The
appellant clearly needs to submrt a change of conditions applicahon under this section to allow
construction of the church on the srte.
In addihon to the above discussion, there is another basis for upholding the admuustrahve
deternunation interpretmg the previous rezone as preclud.uig any use of the site other than
development of an 80-unit condomuuum. That is the specific finding of fact entered on such
issue by the Board of County Comnussioners in its 1984 decision refusmg to consider a revised
applicahon for development of an 80-apartment complex on the srte. The Board's 1984 decision
entered a finding of fact that the subject property " was approved in 1979 with a specific site
development condition requinng that the site be developed for the sole purpose of an 80-unit
condominium development." See p 2 of Commissioners Document No 84-0898, adophng the
Decision, Finduigs of Fact dated 10-16-84 in File No ZE-158A-79 The Examiner notes the
consistency of such finding vvith the findings of fact entered by the HEC m its 1984 decision in
File No ZE-158A-79, rejecting a site plan proposing development of a 172-unrt apartment
complex on the site See finding of fact 11 (d) and (e) in HEC Finduigs and Order dated 8-9-84,
m File No ZE-158A-79.
Washington courts have held the judicial doctrines of resiudicata and collateral estoppel
to be equally apphcable m a quasi -judicial admuustrative context. See Davidson v Kttsap
County, 86 Wn App 673, 937 P.2d 1309 (1997), Hilltop Terrace Homeowner's Ass'n v Island
County, 126 Wn 2d 22, 891 P 2d 29 (1995); and Lejeune v Clallam County, 64 Wn.App 257,
823 P 2d 1144 (1992), review denied,119 Wn 2d 1005, 832 P 2d 488 The appellant appears to
be reargutng the same issue decided by the Heanng Examiner Committee and the Board of
County Comnussioners in their 1984 decisions in Ffle No ZE-158A-79, i e that the pnor rezone
linuted development of the site to an SO-umt condomuuum project. The appellant is collaterally
estopped from raising such issue in the current proceedings.
The appellant further contends that the "condonuruums only" restnchon unposed by the
HEC on site development under the UR-22 zone is an unreasonable condition, is not ratwnally
related to a legitimate governmental interest, and may conshtute a takmg However, as discussed
below, the Exanuner concludes that the 1979 rezone decision by the HEC limiting development
HE Findings, Conclusions and Decision AIE-6-99 Page 11
~
of the site under the Mulhple Family Suburban (MFS) zone solely for condomuuum use was a
reasonable exercise of the County's police power and zonulg authonty at the time.
In 1978, the HEC rejected a project to develop the site for 172 apartment unrts, which the
HEC found to be mcompatible with existmg uses in the azea and unsuitable for the land m the
area. Such project was unaiumously opposed by neighbonrig property owners See HEC
decision entered 11-17-78, and rezone applicahon dated 7-17-78 In 1979, a new application was
subnutted to develop the site for an 80-urut condominium project, with a specific srte plan
subnutted for the HEC to consider At the hme, the land surrounduig the srte was not zoned for
mulnple family development and consisted of smgle-family residenhal uses, an elementary
school and undeveloped land
The HEC's 1979 decision found that the land in the area was surtabte for the proposed
condomuuum use and was compahble with exishng uses in the area, although some adjoming
landowners were opposed to the project Condomuuum ownership of mulfii-family development
was considered a more favorable fortn of development at the tune than currently See teshmony
of Dwight Hume. Even today, sulgle-fanuly neighborhoods commonly resist development of
multi-family rental development due to the transient nature of the tenants in such uruts The
HEC's 1979 decision was not appealed, and is resjudicata as to the reasonableness of the
conditions imposed, except as mod.ified by the HEC's 1980 decision on the Cahstro change of
conditions proposal
The HEC's 1980 change of conditions decision lessened some of the restnchons unposed
by the 1979 order, at the site owner's request The decision found that the land in the area was
suitable for the proposed use or uses vvithui the proposed zone classification, and that the
proposed use was compatible with existing uses in the area, even thoug,h it found that adjouung
landowners expressed disapproval of the change m condihon The Examiner does not agree with
the appellant's contention that the 1980 order found the land m the area to be compahble with all
the vanous uses allowed in the MFS zone The finding relates to "proposed" uses and not all
uses allowed in the zone The only proposed use was one for condominium development The
HEC's 1984 deci.sion rejectuig a proposed 172-uiut apartment project found the 1979 approval to
be realistic, in light of the adjacent smgle-fanuly residential development to the west and south
of the project The 1980 order is also resjudicata as to the reasonableness of the conditions it
imposed
It may be that the "condomiruums only" condihon no longer makes sense as a restnction on
development of the site under the UR-22 zone, just lilce changes in cucumstances mayjushfy
rezonuig a property to another zone The County Zorung Code provides a process for changing
binding conditions imposed on a pnor rezone of property, one that requires a change of condition
application to be submitted for review at a public heanng before the County Heanng Examiner
This is no different than requinng a property owner to go through an application and heanng
process to change the zoning of a property Certain minor changes may be approved under
Zonulg Code 14 504 040, as long as they do not conflict with a specific condition imposed on the
pnor rezone In tlus case, the proposed development of the site for a church conflicts with the
"condominiums only" restnction
HE Findings, Conclusions and Decision AIE-6-99 Page 12
.
The appellant draws attention to the fact that the project has little or no opposition in the
record However, opposition does not always surface until a pubhc hearmg is held on a land use
application. A letter was subnrutted for the current matter which expressed some concern with
the potential for other development on the site in addition to the church See letter dated 1-11-00
from John and Patncia Korn. While pubhc nohce of heanng was sent to adjouung property
owners for the change of condihons apphcation in File No ZE-158B-79, and this was the only
response received, the Exammer had already ruled 2 weeks before the January 12, 2000 heanng
that the heanng on the change of conditions applicatton was stncken. See letter dated 12-29-99
from Heanng Exammer to 11r1ischelle Fulgham The Examiner also notes that the Nohce of
Appucation process has not been completed for the change of conditions apphcation, wluch is
specifically designed to provide notice to adjoimng property owners of an applicahon
C The Examiner Dronerlv denied consolidation of the change of condihons apvlication m File
No ZE-158B-79 for heanne on Januarv 12. 2000
The appellant's final contenhon is that the Exammer should have proceeded to hear the
change of conditions apphcation The Examiner's reasons for refusing to consohdate the 2
matters are summarized in a letter dated 12-29-99 from the Examiner to Mischelle Fulgham in
the record Tlus includes the fact that the land use processing procedures required by statute
(chapter 36 70B), the County's ESHB 1724 regularions (County Resolution No. 96-0293) had
not been followed, and the cntena for consolidanon under the Hearing Examiner Rules of
Procedure (County Resolution No 96-0294) was not met Chapter 36 70B (implemenhng
ESHB 1724) requues counhes such as Spokane County to adopt a land use process that includes
a notice to the property owner that an apphcation is complete, a notice of apphcation sent to
adjouung property owners advising them of the project, a threshold detennmation under SEPA,
a nohce of heanng if an open record heanng is requued on the apphcation, and a nohce of
decision All such steps but the notice of decision must occur before the open record hearing can
be held See RCW 36 70B.070 and 36 70B.110
The County adopted the land use procedures contauied m County Resolution No 96-0293
to implement such statutory reqturements A change of conditions apphcation is regarded as a
Type III process under such rules The applicant did not submit an apphcation for the change of
conditions until December 2, 1999 Such apphcation was determtned to be "counter complete"
under such rules, but not "technically complete" The norice of apphcation cannot be sent out
until there is deterininahon of techrucal completeness After the comment penod on the notice of
application is expired, a threshold detennination under SEPA can be made. After the threshold
deternainahon is made, a nohce of heanng can be sent None of these latter reqiured steps had
been taken for the subject change of conditions apphcahon at the tune of the January 12, 2000
public heanrig
The change of conditions file mdicates that a notice of apphcabon, and a threshold
deterrrunation under SEPA was previously issued for a gradmg permit for the site However,
Division of Current Planning cannot substitute the notice of application and threshold
determination issued for the gradmg permit for the subject change of conditions application,
since it involves a different type of application The Division could adopt the envlronmental
checklist subrrutted for the gradmg permit as an environmental document for the change of
conditions apphcation, but it still needs to issue a threshold deternunahon for the change of
conditions application
HE Findings, Conclusions and Decision AIE-6-99 Page 13
t
The change of conditions applicanon clearly was not ready for heanng by the Exammer on
January 12, 2000 The Exanuner could not consolidate such apphcahon for heanng vvith the
administrahve appeal, since heanng the change of cond.ihons application would have violated the
land use processing procedures of County Resolution No 96-0293 and chapter 36 70B RCW.
See County Resolunon No 96-0294, Section 6 C
IV. DECISION
Based on the Finduigs of Fact and Conclusions of Law stated above, the above appeal is
hereby denied and the admuustrabve deternunanon is affumed The change of conditions
application in File No ZE-158B-79 may be specially set for heanrig before the Exanuner on an
expedited basis, provided applicable land use processing and nohce procedures are met
DATED tlus 26th day of January, 2000
SPOKANE COUNTY HEARING E R
Mic ael C Dempsey, WSBA W#5
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Spokane County Resoluhon No 96-0171, the decision of the Hearing Exanuner
on an adnunistrative appeal is final and conclusive vnless anthin fiwenty-one (21) calendar days
from the issuance of the Examiner's decision, a party writh standmg files a land use petihon in
supenor court pursuant to chapter 36 70C RCW Pursuant to chapter 36 70C RCW, the date of
issuance of the Heanrig Exanuner's decision is three (3) days after it is mailed
This Decision was mailed by Certified Mail to the Applicant on January 26, 2000 The date of
issuance of the Heanng Examiner's deciston is therefore Zanuary 31, 2000, counhng to the next
business day when the last day for mailing falls on a weekend or hohday THE LAST DAY FOR
APPEAL OF THIS DECISION TO SUPERIOR COURT BY LAND USE PETITION IS
FEBRUARY 21.2000.
The complete record m this matter, including tlus decision, is on file dunng the appeal penod
with the Office of the Heanng Examiner, Third Floor, Pubhc Works Building, 1026 West
Broadway Avenue, Spokane, Waslungton, 99260-0245, (509) 477-7490 The file may be inspected
dunng normal working hours, listed as Monday - Fnday of each week, except hohdays, between the
hours of 8 00 a m and 4•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-6-99 Page 14