CUP-2015-0001 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Conditional Use Permit for a Day Care, for )
38 children, in the Single-Family Residential )
Urban (R-4) Zoning District; ) ORDER CORRECTING
) MINOR DRAFTING
Applicant: Carey Kemnitz-Ruthenbeck ) ERRORS IN DECISION
File No. CUP-2015-0001 )
)
I. PROCEDURAL MATTER
On June 17, 2016, the Hearing Examiner entered written Findings of Fact, Conclusions of Law,
and Decision ("decision") in the above-referenced file number. The decision contains some minor
drafting errors by the Examiner, which are described as follows:
Page 2, Finding of Fact (FF) No. 11, line 2: Change "Exhibits 10-10" to "Exhibits 1-10". See
FF No. 9 on page 2.
Page 12,FF No. 89, line 1: Change"A Type III landscaping screen"to"Type I-Full Screening".
See reference to "Type I-Full Screening" in FF#80-81, and in SVMC 22.70.030.B.
Page 14, Department Condition No. 3: Change "Type III landscape screening" to "Type I-Full
Screening". See reference to "Type I-Full Screening" in FF #80-81, and in SVMC 22.70.030.B.
Section J(7) of the Hearing Examiner Scheduling Rules and Rules of Conduct, in Appendix B
of the SVMC, authorizes the Hearing Examiner to correct minor drafting errors in the Examiner's
decisions, without affecting the appeal period for the decision; provided a copy of each page affected
by the decision is mailed to all parties of record. Good cause exists to correct the minor errors
referenced above, which are obvious from the context of the decision and SVMC 22.70.030.B.
II. ORDER
It is hereby ORDERED that the Hearing Examiner's decision of June 17, 2016 in the above-
referenced matter be revised, to correct the minor drafting errors described above.
The deadline for appeal of the decision, as revised, is July 11, 2016; the same as for the
original decision. On June 21, 2016, a copy of this order and the revised pages will be mailed to
the applicant and other parties of record.
DATED this 21st day of June, 2016
SPOKANE CONTY HEARING EXAMINER
Michae C. Dempsey WSBA #823
7. The Hearing Examiner heard the application pursuant to Chapters 17.80, 18.20 and 19.150 of
the Spokane Valley Municipal Code (SVMC); and the Hearing Examiner Scheduling Rules and
Rules of Conduct, as codified in Appendix B of the SVMC.
8. The following persons testified at the public hearing:
Karen Kendall, Assistant Planner Carey Kemnitz-Ruthenbeck
Spokane Valley Community Development Department Roots & Wings
11707 E. Sprague Avenue 1101 S. Bowdish Road
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Joseph Duris Purity Famino
1214 W. Chaucer Avenue 11617 E. 11th Avenue
Spokane, WA 99208-8675 Spokane Valley, WA 99206
Greg Johnson
3111 S. Tekoa
Spokane, WA 99203
9. The following exhibits were submitted by the Department, and admitted into the record at the
public hearing:
Exhibit 1: Vicinity Map
Exhibit 2: Application Submittal
Exhibit 3: 1988 Building Permit with original Change of Occupancy (COO)
Exhibit 4: Email correspondence regarding continuation of previous daycare use
Exhibit 5: Conceptual Site Plan of Record date stamped April 22, 2016
Exhibit 6: Determination of Completeness
Exhibit 7: Notice of Application
Exhibit 8: determination of Non-Significance (DNS)
Exhibit 9: Notice of Public Hearing
Exhibit 10: Agency Comments
Exhibits 11/11A: Power point presentation for Staff Report and Recommendations
Exhibit 12: Email from Karen Kendall to Jim Red, dated 5-20-16
Exhibit 13: Letter from Elizabeth and R. Wayne Robinson
Exhibit 14: Letter from James A. Johnson, dated 5-26-16
10. Exhibits 1-10 were attached to the Staff Report prepared by the Department. Exhibits 11, 11A
and 12 were submitted by the Department. Exhibits 13 and 14 were submitted by Greg Johnson.
11. The record includes the electronic recording of the hearing; the Staff Report and attached
Exhibits 1-10, and the other documents in the application file at the time of the hearing; Exhibits 1-
14; and the items taken notice of by the Hearing Examiner.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 2
from the east or south lot lines of the day care lot adjacent to the outdoor play areas, and be subject
to greater amounts of noise than typical residential areas; but did not find grounds to impose any
mitigation for such impacts because an application for the short plat has not been submitted for the
site.
85. The construction of such future residences on the site could help buffer noise impacts from the
day care to the residences located east and south of the site, although the new residences would be
subject to noise impacts from the nearby playground areas for the day care. The day care would still
be required to comply with the maximum permissible noise levels set forth in WAC 173-60-040
regarding such new residences.
86. The project proposes to serve up to 38 children;which is 2.5 times the 12 children the applicant
is currently licensed to provide day care services to, and over 1.5 times the 24 children who Joanne
Brown was licensed to provide services to in a nursery school from 1992 to 2006.
87. The applicant did not clearly demonstrate that the approval of a CUP for a day care facility
serving up to 38 children will be compatible with other permitted uses in the vicinity of the proposed
use, i.e. adjoining and nearby single-family dwellings. The chain link fencing on the site is only
four (4) feet tall, the slats installed in the fencing will provide less sound mitigation than a solid
wood or vinyl fence, Type II landscaping is not fully sight-obscuring, and the fencing and
landscaping will not extend along the entire east and south lot lines of the proposed day care lot as
required for Type II screening.
88. The proposed screening would appear to be adequate for a day care for 24 children,considering
a nursery school for up to 24 children operated on the site for several years in the past without
evidence of any major complaints, and the distances between the screened play areas and
neighboring properties; notwithstanding the comments submitted by the owners and residents of the
lots lying directly south and southeast of the site, which expressed concerns over the noise impacts
from the current day care on the site that serves only 12 children.
89. Type 1-Full Screening, along with the installation of a solid wood/vinyl or acoustically
designed fence along the east and south borders of the outdoor play areas, would appear to
significantly increase the sound buffering of the day care and allow more 25-38 children in the day
care without generating significant adverse noise impacts to neighboring residential properties.
90. The Department, and the Hearing Examiner, have no authority to enforce private covenants
that may apply to Clark's Hillcrest Homes Addition.
91. Subject to the increased screening needed to buffer noise impacts from more than 24 children
in the day care, the proposed CUP, as conditioned, is consistent with the Comprehensive Plan and
the applicable development standards set forth in the SVMC, and the conditions and requirements
recommended for the CUP are adequate and appropriate under SVMC 19.150.030; based on the
analysis set forth in the Staff Report.
Based on the above Findings of Fact, the Hearing Examiner enters the following:
HE Findings, Conclusions and Decision CUP-2015-0001 Page 12
needed to conform to SVMC Title 22 (Design and Development Standards) and Spokane Valley
Street Standards.
2. If the day care serves 24 or fewer children, the east and south boundaries of the outdoor play
area for the day care shall meet the standards of Type II landscape screening, per SVMC Section
22.70.030C.
3. If the day care serves 25 to 38 children, the east and south boundaries of the outdoor play area
for the day care shall meet the standards of Type I-Full Screening,per SVMC Section 22.70.030B;
provided, the 6-foot high fully sight-obscuring fencing shall consist of wood, vinyl, architectural
panels, or acoustically designed material.
4. A landscape plan that includes provision for irrigation shall be prepared by the applicant and/or
property owner detailing the type and size of plantings.
5. If a short plat application is submitted for the site, and the area of the site required for
screening of the outdoor play areas is located on lots that abut the outdoor play areas, the areas
needed for screening shall be dedicated as permanent easements to the owner of the day care lot
created by the short plat, for the installation, preservation, access to, and maintenance of such
screening. The easement shall establish the location and purpose of the easement, and the party
responsible for maintenance of the screening installed in the easement. The easement must be
reviewed by Department staff before the approval of the short plat, and recorded on the face of the
short plat or with the Spokane County Auditor's Office. The easement shall run with the land; and
shall include a sunset clause that applies if the easement is no longer needed to screen the day care,
consistent with this decision.
6. Existing and new landscaping shall be maintained in a healthy condition, and shall be replaced
if it ceases to comply with the requirements for such landscaping.
7. The day care facility shall comply with the maximum permissible noise levels set forth in WAC
173-60-040.
8. Record a title notice for the property referencing the Hearing Examiner's decision in File No.
CUP-2015-0001.
9. All fees associated with permits and recording are the responsibility of the applicant and/or
property owner.
SPOKANE VALLEY COMMMUNITY &ECONOMIC DEVELOPMENT DEPARTMENT-
BUILDING DIVISION:
10. A Building Permit is required to address the requirements outlined in the building codes
adopted pursuant to SVMC Title 24 that are in effect at the time of building permit application. The
proposal by the applicant for the CUP to increase the occupant load of the existing day care facility
requires a review for adequate fire and life safety features of the existing building, such as the egress
(exiting) system and accessibility for persons with physical disabilities.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 14
CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Conditional Use Permit for a Day Care, for )
38 children, in the Single-Family Residential )
Urban(R-4) Zoning District; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Applicant: Carey Kemnitz-Ruthenbeck ) AND DECISION
File No. CUP-2015-0001 )
)
I. SUMMARY OF DECISION
Summary of Hearing Matter: Application for a conditional use permit for a day care, for a
maximum of 38 children; in the R-4 zoning district.
Summary of Decision: Approve CUP for a maximum of 24 children, subject to the conditions
of approval recommended by the Community and Economic Development Department, and other
public agencies and departments. Approve the CUP for a maximum of 25-38 children, subject to
the revised condition that the east and south borders of the outdoor play areas be screened with
Type I-Full Screening, including a 6-foot high solid fence.
II. FINDINGS OF FACT
Procedural Matters:
1. On January 4, 2016, the applicant submitted a complete application to the Spokane Valley
Community and Economic Development Department ("Department") for a conditional use permit
(CUP) for a day care, to serve up to 38 children, on a 34,400-square feet site; in the Single-Family
Residential Urban(R-4) zoning district.
2. The site is located at the southeast corner of the intersection of Bowdish Road and 11th Avenue;
in Spokane Valley, Washington; and is addressed at 1101 S. Bowdish Road.
3. The site is currently referenced as County Assessor's tax parcel no. 45214.1217; and is legally
described as Lots 5-6, Block 2, Clark's Hillcrest Homes, per plat recorded in Volume 1, Page 69 of
Plats, records of Spokane County Auditor.
4. The applicant is Carey Kemnitz-Ruthenbeck, dBA Roots & Wings, LLC; with a mailing
address of 1101 S. Bowdish Road, Spokane Valley, WA 99206. The owner of the site is Solitude
Property, LLC; with a mailing address of 1214 W. Chaucer Avenue, Spokane, WA 99208-1217.
5. On April 15, 2016, the Department issued a Determination of Nonsignificance (DNS) for the
application. The DNS was not appealed.
6. On May 26, 2016, the Hearing Examiner conducted a public hearing on the application. The
notice requirements for the public hearing were met. The Hearing Examiner conducted a site visit
on May 26, 2016, before the hearing; and also on June 16, 2016.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 1
7. The Hearing Examiner heard the application pursuant to Chapters 17.80, 18.20 and 19.150 of
the Spokane Valley Municipal Code (SVMC); and the Hearing Examiner Scheduling Rules and
Rules of Conduct, as codified in Appendix B of the SVMC.
8. The following persons testified at the public hearing:
Karen Kendall, Assistant Planner Carey Kemnitz-Ruthenbeck
Spokane Valley Community Development Department Roots & Wings
11707 E. Sprague Avenue 1101 S. Bowdish Road
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Joseph Duris Purity Famino
1214 W. Chaucer Avenue 11617 E. 11th Avenue
Spokane, WA 99208-8675 Spokane Valley, WA 99206
Greg Johnson
3111 S. Tekoa
Spokane, WA 99203
9. The following exhibits were submitted by the Department, and admitted into the record at the
public hearing:
Exhibit 1: Vicinity Map
Exhibit 2: Application Submittal
Exhibit 3: 1988 Building Permit with original Change of Occupancy (COO)
Exhibit 4: Email correspondence regarding continuation of previous daycare use
Exhibit 5: Conceptual Site Plan of Record date stamped April 22, 2016
Exhibit 6: Determination of Completeness
Exhibit 7: Notice of Application
Exhibit 8: determination of Non-Significance (DNS)
Exhibit 9: Notice of Public Hearing
Exhibit 10: Agency Comments
Exhibits 11/11A: Power point presentation for Staff Report and Recommendations
Exhibit 12: Email from Karen Kendall to Jim Red, dated 5-20-16
Exhibit 13: Letter from Elizabeth and R. Wayne Robinson
Exhibit 14: Letter from James A. Johnson, dated 5-26-16
10. Exhibits 1-10 were attached to the Staff Report prepared by the Department. Exhibits 11, 11A
and 12 were submitted by the Department. Exhibits 13 and 14 were submitted by Greg Johnson.
11. The record includes the electronic recording of the hearing; the Staff Report and attached
Exhibits 10-10, and the other documents in the application file at the time of the hearing; Exhibits
1-14; and the items taken notice of by the Hearing Examiner.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 2
Description of Site:
12. The site is 172 feet long from north to south, 200 feet long from west to east, 34,400 square
feet in area, relatively flat in topography, and accessed from Bowdish Road. The site consists of
two (2) lots that were platted in 1950, and adjoin each other from west to east. See vicinity maps in
Exhibits 1 and 8.
13. A single-story building with a basement, consisting of a converted residence, is located in the
center of the site; closer to the north boundary of the site than the south. The building has a covered
porch and covered concrete patio on the south, a patio on the north side, and a covered porch on the
west side. A gravel driveway extends westerly from the porch area located on the south side of the
building to Bowdish Road.
14. Chain-link fencing, four feet in height, encloses the area of the site lying between the building
and the north border of the site, adjacent to 11th Avenue; encloses the area lying east of the building
and the northerly fenced yard, at a distance of 58 feet from the east border of the site and 61 feet
from the south border of the site; and is also located along the east and borders of the site, and the
remainder of the north border.
15. Landscaping, consisting of deciduous shrubs and small trees, is located in the 5.5-foot wide
strip of City right of way that lies between the fencing on the north border of the site and the curb
along the south side of 11th Avenue. A 3-foot wide footpath is located in the right of way between
the fence and the landscaping.
16. Some mature evergreen trees are located on the site; which are depicted on the concept plan
submitted by the applicant, except that the evergreen tree depicted nearest the building to the
northwest actually lies northeast of the residence, along with a mature deciduous tree that is not
depicted on the concept plan. See Hearing Examiner site visits,photos in Exhibit 11 and 11A, aerial
map in preliminary site plan in Exhibit 8, map showing size of proposed site for CUP in Exhibit 8,
and 24-inch by 36-inch concept plan dated 2-28-16.
17. In 1988, a portion of the residence on the site was converted for a nursery school. The building
currently includes a pre-K playroom, pre-k art room, school age room, preschool room, toddler
room, cafeteria/kitchen, laundry area, office and restrooms; and is being used for a day care (12
children or fewer), a permitted use in the R-4 zoning district. The fenced outdoor play areas have a
total area of approximately 3,815 feet. See concept plan, floor plan (showing fire exit routes) in
Exhibit 2, and p. 1 of Requests document in Exhibit 2.
Description of Project:
18. The owner of the site, Joey Duris, plans to short plat the site into three (3) lots. This includes
a lot for the day care that would be located at the corner of Bowdish Avenue and 11th Avenue, after
10 feet of right of way dedication to the City along Bowdish Avenue. The lot would be 132 feet
wide from west to east, 111 feet long from north to south, 14,652 square feet in area, located 58 feet
from the east border of the site, and located 61 feet from the south border of the site.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 3
19. The other two (2) lots in the planned short plat would be created directly east and south of the
day care lot; have widths of 58 feet and 61 feet, and access 11th Avenue and Bowdish Road,
respectively; and be developed for small residences. See p. 3-4 of Staff Report, "Requests"
document in Exhibit 2, testimony of Joseph Duris, concept plan, and diagram of"CUP proposed
site"in Exhibit 8.
20. The proposed day care facility, for up to 38 children, and approximately 11 staff
members/volunteers, is well-described in the application materials in Exhibit 2, and page 2-3 of the
Staff Report; and is illustrated on the concept plan.
21. The project would remove two (2) of the three (3) large mature trees located along Bowdish
Road, for on-site parking.
22. The project proposes to add landscaping directly east of the chain link fencing that encloses
the playground area on the east and south, with "possible easements" reserved to preserve and
maintain such landscaping prior to development of the short plat lots planned to the east and south;
and to install sight-obscuring slats in such fencing. See concept plan, and p. 4 of Staff Report.
23. The installation of additional landscaping, and the sight-obscuring slats in the chain link
fencing, is intended to enhance the screening of the outdoor play areas for the day care, and mitigate
noise impacts to neighboring properties. See concept plan,p. 4 of application form in Exhibit 2, and
p. 4 of Staff Report.
24. The project proposes to install a paved parking lot on the site adjacent to Bowdish Road. to
accommodate four (4) regular and one (1) handicap stall; with employee parking to be located off-
site along 11th Avenue.
25. City Development Engineering did not request street improvements for the project along
Bowdish Road,because of a sidewalk improvement project planned along Bowdish Road in the next
six (6) years. The sidewalk project can be accommodated within the 10 feet of the site required to
be dedicated along Bowdish Road, and the applicable radius at the intersection of Bowdish and 11th
Avenue that is also required to be dedicated.
26. City Development Engineering did not request street improvements for the project along 11th
Avenue, because this may create design issues for the TIP sidewalk project along Bowdish. See
memorandum from City Development Engineering in Exhibit 10.
27. The business hours for the day care are planned to be Monday through Friday, from 6:30 a.m.
to 6:00 p.m. (except for being closed on major holidays); with outdoor play times for children, for
5-45 minutes, at 8:00 a.m., 10:30 a.m., and 3:00 p.m.
Land Use Designations for Site and Area, Surrounding Conditions:
28. The site and neighboring land are designated in the Low Density Residential category of the
Comprehensive Plan. The land located several blocks to the north, along and near Sprague Avenue,
consists of intensive commercial uses on land zoned for commercial uses.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 4
29. The site, and the other land lying between 10th and 12th Avenues, east of Bowdish Road and
west of Wilbur Road, are zoned R-4. The land in the vicinity lying north and south of the site is
dominated by single-family dwellings, along with a duplex found to the north, and the south,
respectively. See p. 3 of Staff Report.
30. The land lying east of the site is zoned Single-Family Residential (R-3). Such land generally
consists of single-family dwellings; an adult family home located northeast of the site, at the
northwest corner of the intersection of 11th Avenue and Wilbur Road; and Opportunity Elementary
School, which lies directly east of Wilbur Road, between 10th and 12th Avenues. The playgrounds
for the elementary school are located on the east side of the school.
31. The land lying west of Bowdish Avenue in the vicinity is zoned R-3, and generally consists of
single-family dwellings.
32. The City Arterial Road Plan designates Bowdish Road,Eighth Avenue and 16th Avenue in the
area as Minor Arterials, Fourth Avenue to the north as a Collector Arterial, and Sprague Avenue as
a Principal Arterial. Pines Road (SR-27) to the east is a state highway that extends from north to
south through the area.
33. Bowdish Road is a paved 2-lane street with a 50-foot right of way, with 22 feet of the right of
way lying east of centerline adjacent to the site.
34. The City's 6-Year Transportation Program on February 9, 2016 lists a sidewalk improvement
project along Bowdish from 12th Avenue to Eighth Avenue, to commence between 2016 and 2021. j
The south curb along 11th Avenue is located 16.5 feet from the centerline of the road. See
memorandum dated 1-12-16 City Development Engineering in Exhibit 10, and p. 5 of Staff Report.
Public Comments submitted for Application:
35. Purity Famino, who resides northeast of the site at the northwest corner of 11th Avenue and
Wilbur Road, and operates an adult family home care facility licensed for six (6) adults, expressed
support for the project, and advised that her daughter currently attends the day care and has received
positive care there.
36. Joseph Duris testified that his limited liability company owns the site, he has been working
with the applicant since the property was leased,he would be the developer of homes on the two (2)
lots adjoining the site if it is short-platted, and he supports the project.
37. Greg Johnson, who resides on the lot that lies directly and diagonally southeast of the site,
along the north side of 12th Avenue, expressed opposition to the project. Johnson testified that his
father owns and resides on the lot,his father is 90 years old, he grew up on the lot after he was born
in 1960, he has been living on the property and assisting his father over the past year, the day care
use for 12 children has been operating on the site during the past year, when the children in the day
care are outside in the playground areas they are very loud and do a lot of screeching and yelling,
and the project will increase traffic. Johnson contended that approval of the CUP for the day care
will significantly impact the property values of neighboring single-family lots, and the ability to sell
the lot his father owns.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 5
38. The applicant testified that Opportunity Elementary School located east of Wilbur has 400
students, and up to 100 children play outside in the play yard at the school during the same times
that the children at her day care would be outside, plus some additional times; and asked Greg
Johnson why the noise from the day care bothered him,and if he had ever filed a complaint regarding
the noise. Greg Johnson responded that he really cannot hear the children playing at recess at
Opportunity Elementary School, he attended the school when he was growing up, the children
playing outside at the day care on the site are much closer to his father's lot than the children at the
school,the noise from the day care is much more pronounced and annoying than the noise from the
school, and he isn't aware of any noise complaints submitted regarding the nursery school over the
past 18 years.
39. Greg Johnson submitted a letter from his father, James Johnson, which states as follows:
"To Whom it May Concern:
According to the Covenants of Clark's Hillcrest Addition only single family
dwellings are allowed. How was the day care able to open?
No noxious trade or activity shall be carried on upon any lot, nor shall anything
be done thereon which may be or become an annoyance or nuisance to the
neighborhood. This covenant describes the daycare to a T.
What I want is to have the daycare shut down. It is a blight on the neighborhood!
My property value has devalued at least$20,000 due to the daycare."
40. Greg Johnson submitted a letter from Elizabeth and R. Wayne Robinson, who own and reside
on the lot lying directly south of the east one-half(1/2), along the north side of 12th Avenue; and
who Johnson stated could not attend the hearing. The letter states as follows:
"We hereby object to the facility to accommodate 38 children. This number of
children playing outside would interfere with any normal conversation or relaxing
outside on our property which is immediately adjacent to the daycare. "
History of Child Care Use on Site:
41. On August 23, 1988, Spokane County issued a change of use permit, and certificate of
occupancy, to Troy and Diane Turner, to allow a portion of the dwelling located on the site to be
changed to a nursery school; in the R-2 zone of the former Spokane County Zoning Ordinance,
which ordinance was in effect at the time.
42. The County Zoning Ordinance in 1988 at the time defined a "nursery school" as "...a school
or organized program for the care and instruction of preschool age children under the age of six
years whether public or private and whether operated for profit or not operated for profit."
43. In 1988, the R-2 zone of the former County Zoning Ordinance prohibited a day care center,
i.e. a day care for"...13 or more children, not located in a dwelling unless separated from any living
quarters of the dwelling." The R-2 zone also prohibited a family day care home(i.e. up to 6 children
in a dwelling), and a mini day care home (i.e. up to 12 children in a dwelling).
HE Findings, Conclusions and Decision CUP-2015-0001 Page 6
44. The applicant provided records to the Department indicating that the State Department of
Social and Health Services received an application from Diane Turner on July 28, 1988 for a license
to provide child care in a nursery school on the site, for up to 30 children; the Washington State
Department of Early Learning ("DEL") issued a license to Joanne Brown, for a 1992 to 2006 time
period, for a nursery school on the site for up to 24 children, ages 18 months to 12 years; and DEL
issued a license to Joanne Brown, for a 2010 to 2013 time period, to operate a "family child care
home" on the site.
45. DEL licenses "family home child care" facilities under WAC Chapter 17-296A. WAC 170-
296A-0010 defines a "licensed family home child care" facility as "...a facility licensed by the
department where child care is provided for twelve or fewer children in the living quarters where
the licensee resides as provided in RCW 43.215.010(1)(c)."
46. WAC 170-296A-0010 defines "child" to mean "...an individual who is younger than age
thirteen, including any infant, toddler, preschool-age child, or school-age child as defined in this
chapter."
47. WAC 170-296A-0010 defines"child care"to mean"...the developmentally appropriate care,
protection, and supervision of children that is designed to promote positive growth and educational
experiences for children outside the child's home for periods of less than twenty-four hours a day."
48. RCW 43.215.010(1)(c), which is cross-referenced in the definition of licensed family home
child care" in WAC 170-296A-0010 simply contains a definition of"family day care provider"';
which term is defined as "...a child care provider who regularly provides early childhood education
and early learning services for not more than twelve children in the provider's home in the family
living quarters."
49. DEL licenses"child care center"facilities under WAC Chapter 170-295. WAC 170-295-0010
states that a"child care center"means the same as a"child day care center", and defines such facility
as"... a facility providing regularly scheduled care for a group of children one month of age through
twelve years of age for periods less than twenty-four hours."
50. The applicant's contended in the application materials that the facility on the site has been
licensed by the State as a "child care center" since 1988, and for a capacity of 24 children. See
Written Narrative in Exhibit 2. However,the facility did not become licensed by the State as a"child
care center", or equivalent day care use, until April 17, 2015, and then only for a maximum of 12
children.
51. Based on the definition of"licensed family home child care" in WAC 170-296A-0010, the
licensing of the facility on the site as a"family home child care"by the DEL between 2010 and 2013
facility appears to have limited the number of children served during such time to a maximum of 12
children, and required the children to be cared for in the family living quarters where the licensee
resided. Such use would have been allowed in the R-4 zoning district at the time, as a"day care(12
children or fewer)" use. A "day care (13 children or more)"use would have required the issuance
of a conditional use permit in the R-4 district, which was not obtained.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 7
52. The applicant, Carey Kemnitz-Ruthenbeck, indicated in the application materials that the
business operated by Joanne Brown on the site closed on June 16, 2012; she entered into lease
agreement with the owner of the property on May 9, 2014,to take effect on June 1, 2014; she could
operate a day care as a nonconforming use in the R-4 zoning district, at a capacity of 24 children,
i.e. the number of children the previous owner of the site was able to accommodate under a child
care license from DEL; and she intended to expand the occupancy up to 41 children, through the
issuance of a CUP for a day care in the R-4 zoning district. See written narrative and other
documents in Exhibit 2.
53. On September 17, 2014, the State Fire Marshall's Office approved a maximum capacity of 38
children for child care, for fire safety purposes, in the remodeled building on the site; subject to the
issuance of a license by DEL for a child care center. The applicant indicated that the total occupancy
in the facility would be 49 persons, including 11 staff members.
54. On January 29, 2015, Karen Kendall of the Department advised the applicant via email that
there was no evidence that a day care use was ever operated on the site.
55. In December 2015, Casey Ruthenbeck of the Department advised the applicant via email that
the nursery school use that existed on the site was similar to the childcare center use proposed for
the site (i.e. under the definition of"day care" in the SVMC), such that nonconforming status could
have attached to the facility as a day care; but any such nonconforming rights had expired under
SVMC 19.20.060.B.1, because the use had been discontinued on the site for over one (1) year, i.e.
after the use terminated on June 6, 2012. See Exhibit 3.
56. The applicant advised that she "occupied" the building on the site nine (9) months after the
license issued by the DEL to Joanne Brown for a family child care home expired on September 5,
2013, i.e. approximately June 1, 2014, when her lease of the site took effect. However, use of the
site by the applicant for a day care facility (as defined in the SVMC) required the issuance of a
license by the DEL for a child care center. The site was not inspected by the State Fire Marshall for
a DEL license until September 3, 2014, approximately 15 months after Joanne Brown's use of the
site ceased.
57. On January 16, 2015, the Washington Secretary of State issued a certificate of formation to
Root& Wings, LLC, a limited liability company formed by the applicant for the proposed business
on the site, which certificate bore an issuance date of February 13, 2015.
58. On April 17, 2015,the DEL issued a"non expiring" license to the applicant for the facility on
the site as a"child care center", limited to the care of children between the ages of 12 months to one
(1) year; but not to exceed 12 children, in accordance with the child day care (12 children or fewer)
use permitted on the site in the R-4 zoning district. See license in Exhibit 2.
59. The applicant does not appear to have acquired a nonconforming right to operate a day care
facility (for 13 or more children) on the site at any time; since her predecessor, Joanne Brown,
appears to have only had the right to serve up to 12 children, with a requirement to live in the house
on the site; under the license issued by DEL for a family home child care facility in 2010.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 8
60. If the applicant had a non-conforming right to a day care use (13 or more children) when she
leased the property, which does not appear to be the case, it was lost when she did not establish a
day care use on the site within one (1) year after the business closed on the site on June 16, 2012,
i.e. by June 16, 2013.
Compliance of Project with CUP Criteria:
61. The Low Density Residential category of the Comprehensive Plan addresses a range of single-
family residential densities ranging from 1-6 dwelling units per acre.
62. The Staff Report sets forth relevant policies of the Comprehensive Plan. Policy LUP-l.1 also
has relevance.
63. The R-4 zoning district, like the R-3 zoning district, implements the Low Density Residential
category of the Comprehensive Plan; and generally consists of low density residential development
intended to preserve the character of existing development, subject to the dimensional standards set
forth in SVMC Chapter 19.40. See SVMC 19.40.060.
64. The R-4 zoning district permits outright, subject to compliance with certain performance or
development standards, such uses as single-family dwellings, duplex dwellings, multifamily and
townhouse dwellings, day care facilities for up to 12 children, adult day care facilities, child and
adult family homes, churches and similar religious uses, schools from grades K-12, bed and
breakfast facilities, community residential facilities for up to 25 residents, and community
hall/club/lodge facilities. See SVMC 19.120 (including Appendix 19-A).
65. The R-4 zoning district, like the R-3 zoning district, permits day care centers for 13 or more
children, subject to compliance with the conditional use permit (CUP) criteria set forth in SVMC
Chapter 19.150. See SVMC 19.120 (including Appendix 19-A).
66. A request for a CUP may be denied where it cannot be clearly demonstrated that the requested
use will be compatible with other permitted uses in the vicinity of the proposed use. A conditional
use is subject to specific review by the Hearing Examiner, during which additional conditions may
be imposed to assure compatibility with other uses in the vicinity.
67. SVMC 19.150.030 sets forth the conditions and requirements that pertain to requested CUPS;
in addition to the general development standards for the R-4 district set forth in SVMC Chapter
19.40, and other relevant provisions of the SVMC. Seep. 4-5 of Staff Report.
68. The trip generation and distribution letter prepared by the applicant's traffic engineering
consultant estimated that the project is expected to generate 31 vehicular trips,to or from the site, in
both the AM peak hour and the PM peak hour; and 167 average daily trips to and from the site.
69. The trip generation and distribution letter estimated that 75% of the trips from the project are
anticipated to come from the south via Bowdish Road and continue north, and 25% of the trips are
expected to come from the north via Bowdish Road and continue south, in the AM peak hour; and
that 75% of the trips are anticipated to come from the north via Bowdish Road and continue south,
and 25% of the trips are expected to come from the south via Bowdish Road and continue north.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 9
70. The trip generation and distribution letter compared the traffic generation from the project to
what it considered the existing use of the site as a daycare for 24 students, even though the license
issued by the DEL for a family home child care facility/nursery school for the time period of 2010
to 2013 would appear to have limited the use to a maximum of 12 children. The letter found that
only 11 new AM peak hour trips and 11 new PM peak hour trips would be generated by the project,
compared to the previous use of the site for 24 students; such increase would have an insignificant
impact on the City street system, and no mitigation was needed for the project other than the
dedication of additional right of way for Bowdish Avenue.
71. City Development Engineering issued a certificate of transportation concurrency for the
project on March 3, 2016,which represents a determination by the City transportation authority that
the project will not cause the level of service at City street intersections impacted by project traffic
to be degraded to a failing level. No competent evidence of a traffic engineering nature was
presented at the hearing to indicate that the project, as conditioned, would have any significant
adverse impact on the City street system.
72. The site is located along a Minor Arterial, a generally suitable location for a day care facility.
The only significant concern regarding the project is potential noise impacts to neighboring residents
from the outdoor play areas of the day care. The residents to the north, east and west of the site did
not express any concerns regarding the project, but the residents and owners of the lot located
directly south of the east portion of the site, and the lot lying diagonally southeast of the site, each
expressed concerns regarding the noise generated by children playing in the outdoor play areas for
the day care.
73. The applicant stated that"We currently meet noise requirements of SVMC 7.05.040L", on page
1 of the "Requests" document submitted with the application materials, in Exhibit 2.
74. SVMC 7.05.040.L prohibits any noise or sound that intrudes into the property of another
person that exceeds the maximum permissible noise levels as established in WAC 173-60-010; as
well as any other sound occurring frequently,repetitively, or continuously which annoys or disturbs
the peace, comfort, or repose of a person of reasonable sensitivity.
75. The maximum permissible noise level set forth in WAC 173-60-040 for a Class A EDNA noise
source (including community services like a day care) and a Class A EDNA receiver (neighboring
residential uses), during the hours of 7:00 a.m. to 10:00 p.m., is 55 dBA. Exceedances of 5 dBA are
allowed for a total of 15 minutes in any one-hour period, 10 dBA for a total of five (5) minutes in
any one-hour period, and exceedances of 15 dBA for a total of 1.5 minutes in any one-hour period.
The recess periods for the day care would range from five (5)to 45 minutes.
76. The Department found in the Staff Report that the outdoor play areas in the project may
generate a significant amount of noise during times of use, citing recess times at Opportunity School
generating noise as far as two (2) blocks away; but noted that a day care use on the site that did not
utilize the entire site has existed in the neighborhood for 18 years without providing screening, and
the addition of fence screening and landscaping for the project will soften noise impacts although
not eliminate them.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 10
77. The Department's conditions of approval, set forth on pages 8-9 of the Staff Report, require
the installation of a Type II landscape screening along the east and south boundaries of the outdoor
play area under"SVMC 20.70.030.0". The correct code provision is SVMC 22.70.030.C.
78. SVMC 22.70.030.0 provides, for multifamily or nonresidential projects, that where required
to minimize the incompatibility between adjacent land uses, a Type II-Visual Buffer consisting of a
visual screen of not less than five (5) feet in width shall be installed, which may consist of fencing,
architectural panels, berms, walls, vegetative plantings, or some combination of such screening;
specifies the trees and shrubs for the installed landscaping; and requires the buffer to run the entire
length of the abutting lot line.
79. The Department's conditions do not require the Type-II Visual Buffer to extend along the
entire length of the east and south lots lines of the proposed lot for the day care, or along the north
lot line of such proposed lot; and the landscaping is anticipated to be located on adjacent lots created
on the site in the future, possibly easements. The applicant does plan to install slats in the existing
chain link fencing in such areas. The existing landscaping located north of the play area is located
in the City street right of way, and not on the site.
80. The Hearing Examiner may impose special landscaping and screening requirements in addition
to those prescribed by the SVMC for a use,to mitigate the adverse impacts of a conditional use. The
comments submitted by the Planning Division of the Department in the review of the current
application, on page 3, noted that the Hearing Examiner could, for example, require 50 points of
landscaping in addition to Type I-Full Screening.
81. SVMC 22.70.030.A states that where Type I-Full Screening is required, a sight-obscuring
fence (which may include a chain link fence with slats) shall be installed that is at least six (6) feet
in height and 100% sight-obscuring; and the fence shall be further screened with a mix of plantings
located within a 5-foot buffer.
82. The applicant submitted no evidence, such as an acoustical study, to demonstrate that the day
care, as existing for 12 children, or as approved through the current application for a maximum of
38 children, complies with the maximum permissible noise levels established in WAC 173-60-010,
et. seq.
83. The Department, on page 6 of the Staff Report, indicated that the hours of operation for the
project should adequately limit noise consistent with the maximum permissible noise levels set forth
in WAC 173-60-040,because they occur outside the hours of 10:00 p.m. and 7:00 a.m. during which
the maximum permissible noise levels prescribed by WAC 173-60-040 must be lowered by 10dBA.
This comment has no support in the record, since no acoustical study was done of the noise impacts
generated by the project to show that the maximum permissible noise levels set forth in WAC 173-
60-040 will not be exceeded.
84. The Department expressed concern in the Staff Report that the day care could cause adverse
noise impacts to residences developed on the short plat lots on the site planned east and south of the
lot proposed for the day care, which future residences would be subject to a minimum 5-foot setback
HE Findings, Conclusions and Decision CUP-2015-0001 Page 11
from the east or south lot lines of the day care lot adjacent to the outdoor play areas, and be subject
to greater amounts of noise than typical residential areas; but did not find grounds to impose any
mitigation for such impacts because an application for the short plat has not been submitted for the
site.
85. The construction of such future residences on the site could help buffer noise impacts from the
day care to the residences located east and south of the site, although the new residences would be
subject to noise impacts from the nearby playground areas for the day care. The day care would still
be required to comply with the maximum permissible noise levels set forth in WAC 173-60-040
regarding such new residences.
86. The project proposes to serve up to 38 children;which is 2.5 times the 12 children the applicant
is currently licensed to provide day care services to, and over 1.5 times the 24 children who Joanne
Brown was licensed to provide services to in a nursery school from 1992 to 2006.
87. The applicant did not clearly demonstrate that the approval of a CUP for a day care facility
serving up to 38 children will be compatible with other permitted uses in the vicinity of the proposed
use, i.e. adjoining and nearby single-family dwellings. The chain link fencing on the site is only
four (4) feet tall, the slats installed in the fencing will provide less sound mitigation than a solid
wood or vinyl fence, Type II landscaping is not fully sight-obscuring, and the fencing and
landscaping will not extend along the entire east and south lot lines of the proposed day care lot as
required for Type II screening.
88. The proposed screening would appear to be adequate for a day care for 24 children,considering
a nursery school for up to 24 children operated on the site for several years in the past without
evidence of any major complaints, and the distances between the screened play areas and
neighboring properties; notwithstanding the comments submitted by the owners and residents of the
lots lying directly south and southeast of the site, which expressed concerns over the noise impacts
from the current day care on the site that serves only 12 children.
89. A Type III landscaping screen, along with the installation of a solid wood/vinyl or acoustically
designed fence along the east and south borders of the outdoor play areas, would appear to
significantly increase the sound buffering of the day care and allow more 25-38 children in the day
care without generating significant adverse noise impacts to neighboring residential properties.
90. The Department, and the Hearing Examiner, have no authority to enforce private covenants
that may apply to Clark's Hillcrest Homes Addition.
91. Subject to the increased screening needed to buffer noise impacts from more than 24 children
in the day care, the proposed CUP, as conditioned, is consistent with the Comprehensive Plan and
the applicable development standards set forth in the SVMC, and the conditions and requirements
recommended for the CUP are adequate and appropriate under SVMC 19.150.030; based on the
analysis set forth in the Staff Report.
Based on the above Findings of Fact,the Hearing Examiner enters the following:
HE Findings, Conclusions and Decision CUP-2015-0001 Page 12
III. CONCLUSIONS OF LAW
1. The application, as conditioned below,meets the concurrency requirements of SVMC Chapter
22.30; and complies with the SVMC, and other relevant development regulations.
2. Adequate conditions and restrictions on the conditional use have been placed to ensure that it
will be compatible with other permitted uses in the vicinity; and will not be materially detrimental
to the public health, safety or general welfare. Certain minor additions should be made to the
conditions of approval for compliance purposes, as set forth in the conditions set forth below.
3. The application, as conditioned, reasonably mitigates any adverse impacts on adjacent
properties by reason of use, extension, construction or alteration allowed with respect to the
conditional use.
4. The application, as conditioned, is generally consistent with the Comprehensive Plan, and will
be compatible with other permitted uses in the vicinity.
5. The application, as conditioned, complies with the criteria specified in SVMC 19.150.010 for
approving a conditional use permit for a daycare center within an existing facility in the R-4 zoning
district, and the general development standards of the R-4 zoning district.
6. Any conclusion of law above that is a finding of fact is hereby deemed such.
7. The approval of the conditional use permit is appropriate under SVMC Chapter 18.20(Hearing
Examiner).
IV. DECISION
nConclusionsof L w thea lication for a conditional
Based on the above Findings Fact and Law,� application
use permit for a day care (13 or more children) in the R-4 district, to serve up to 38 children, is
hereby approved; subject to the applicant, the owner and the developer of the site complying with
the conditions of approval specified below.
Any public agency conditions that have been significantly altered or added to are italicized.
Failure to comply with the conditions of this approval may result in revocation or suspension
of this approval by the Hearing Examiner. This approval does not waive the applicant's obligation
to comply with all other requirements of other agencies with jurisdiction over land development.
SPOKANE VALLEY COMMMUNITY &ECONOMIC DEVELOPMENT DEPARTMENT-
PLANNING DIVISION:
1. The proposed day care (13 or more children) shall be designed and built in substantial
conformance with the Conceptual Site Plan dated February 28, 2016 and stamped by the
Department on April 22, 2016; subject to compliance with conditions of approval and development
standards. Minor modifications to the site plan may be approved by the Department if they comply
with conditions of approval and do not have significant impacts to neighboring properties, or are
HE Findings, Conclusions and Decision CUP-2015-0001 Page 13
needed to conform to SVMC Title 22 (Design and Development Standards) and Spokane Valley
Street Standards.
2. If the day care serves 24 or fewer children, the east and south boundaries of the outdoor play
area for the day care shall meet the standards of Type II landscape screening, per SVMC Section
22.70.030C.
3. If the day care serves 25 to 38 children, the east and south boundaries of the outdoor play area
for the day care shall meet the standards of Type III landscape screening, per SVMC Section
22.70.030B; provided, the 6-foot high fully sight-obscuring fencing shall consist of wood, vinyl,
architectural panels, or acoustically designed material.
4. A landscape plan that includes provision for irrigation shall be prepared by the applicant and/or
property owner detailing the type and size of plantings.
5. If a short plat application is submitted for the site, and the area of the site required for
screening of the outdoor play areas is located on lots that abut the outdoor play areas, the areas
needed for screening shall be dedicated as permanent easements to the owner of the day care lot
created by the short plat, for the installation, preservation, access to, and maintenance of such
screening. The easement shall establish the location and purpose of the easement, and the party
responsible for maintenance of the screening installed in the easement. The easement must be
reviewed by Department staff before the approval of the short plat, and recorded on the face of the
short plat or with the Spokane County Auditor's Office. The easement shall run with the land; and
shall include a sunset clause that applies if the easement is no longer needed to screen the day care,
consistent with this decision.
6. Existing and new landscaping shall be maintained in a healthy condition, and shall be replaced
if it ceases to comply with the requirements for such landscaping.
7. The day care facility shall comply with the maximum permissible noise levels set forth in WAG
173-60-040.
8. Record a title notice for the property referencing the Hearing Examiner's decision in File No.
CUP-2015-0001.
9. All fees associated with permits and recording are the responsibility of the applicant and/or
property owner.
SPOKANE VALLEY COMMMUNITY & ECONOMIC DEVELOPMENT DEPARTMENT-
BUILDING DIVISION:
10. A Building Permit is required to address the requirements outlined in the building codes
adopted pursuant to SVMC Title 24 that are in effect at the time of building permit application. The
proposal by the applicant for the CUP to increase the occupant load of the existing day care facility
requires a review for adequate fire and life safety features of the existing building, such as the egress
(exiting) system and accessibility for persons with physical disabilities.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 14
SPOKANE VALLEY COMMMUNITY & ECONOMIC DEVELOPMENT DEPARTMENT-
DEVELOPMENT ENGINEERING DIVISION:
11. Compliance shall be demonstrated with conditions of approval nos. 1-9 of the memorandum
dated January 12, 2016 from Chad Riggs of Development Engineering to Karen Kendall of the
Planning Division, in File No. CUP-2015-0001.
SPOKANE COUNTY ENVIRONMENTAL SERVICES DEPARTMENT:
12. Compliance shall be demonstrated with the conditions of approval set forth in the memo dated
May 20, 2016 from Jim Red to Karen Kendall, in File No. CUP-2015-0001.
SPOKANE COUNTY FIRE DISTRICT 1 (SPOKANE VALLEY FIRE DEPARTMENT):
13. The project requires a Change of Occupancy review to address requirements of the
International Fire Code for the increased occupancy load.
DATED this 17th day of June, 2016
SPOKANE VALLEY HEARING EXAMINER
4r.aD'
Micha C. Dempsey, WSBA#8235
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC), and RCW
Chapter 36.70C, the decision of the Hearing Examiner on an application for a conditional use
permit is final and conclusive unless within twenty-one (21) calendar days from the date of
issuance of the Examiner's decision, a party with standing files a land use petition in Superior
Court pursuant to RCW Chapter 36.70C. Pursuant to RCW Chapter 36.70C, the date of
issuance of the Hearing Examiner's decision is three (3) days after it is mailed.
On June 17, 2016, this decision will be mailed by regular mail to the Applicant, and to all
government agencies and persons entitled to notice under SVMC 17.80.130(4). The date of
issuance of the decision is June 20,2016. THE APPEAL CLOSING DATE IS JULY 11,2016.
The complete record in this matter is on file during the appeal period with the Office of the
Hearing Examiner,Third Floor,Public Works Building, 1026 W.Broadway Avenue,Spokane,
Washington, 99260-0245; and may be inspected by contacting Kristine Chase at (509) 477-
7490. The file may be inspected during normal working hours, listed as Monday-Friday of
each week, except holidays, between the hours of 8:00 a.m. and 4:30 p.m. After the appeal
period, the file may be inspected at the City of Spokane Valley Community Development
HE Findings, Conclusions and Decision CUP-2015-0001 Page 15
Department-Planning Division, 11707 E. Sprague Avenue, Spokane Valley, WA, 99206; by
contacting Karen Kendall at (509) 921-1000. Copies of the documents in the record will be
made available at the cost set by the City of Spokane Valley.
Pursuant to RCW 36.70B.130,affected property owners may request a change in valuation for
property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision CUP-2015-0001 Page 16