SUB-2017-0006 Order and Revision CITY OF SPOKANE VALLEY HEARING EXAMINER
Preliminary Plat of Big Sky at Greenacres South )
Subdivision, in the R-3 Zoning District )
ORDER CORRECTING
SCRIVENER'S ERRORS IN
Applicant: Big Sky Homes &Development ) DECISION
File No: SUB-2017-0006 )
I. PROCEDURAL MATTER:
On September 27, 2017, the Hearing Examiner entered written Findings of Fact, Conclusions and
Decision ("decision") in the above-referenced file number. The decision contains certain scrivener's
errors, which should be revised as follows:
1. Page 12, Finding of Fact#87: Replace all text with"The application was circulated to the DAHP on
May 11, 2017. The DAHP did not submit any comments on the application."
2. Page 22, Spokane Tribe of Indians Condition #2: In the last line, change the text "Findings of Fact
#'s 70-91 on page 10-12 of decision"to "Findings of Fact#'s 65-91 on page 9-12 of decision".
The May 11,2017 routing memorandum from the City Planning Division in the file, sent by email
to the State Department of Archaeology and Historic Preservation (DAHP) and other commenting
agencies, attached a copy of the application materials and State Environmental Protection Act (SEPA)
checklist for the application, and advised that the Planning Division would likely issue a Determination
of Nonsignificance (DNS) for the application. The file indicates no comments were received from the
DAHP regarding the application.
Finding of Fact #87 incorrectly states that the application was not circulated to the DAHP. See
also email from Karen Kendall of the Planning Division to Mike Dempsey dated September 27, 2017,
noting the drafting error in Finding of Fact#87 of the decision.
Findings of Fact#'s 65-91, on pages 9-12 of the decision,discuss the Tribe's request for a cultural
survey and the issues involving such request. Spokane Tribe of Indians Condition#2, on page 22 of the
decision, incorrectly references only Findings of Fact#'s 70-91 as being pertinent to such condition.
Section J (7) of the Hearing Examiner Scheduling Rules and Rules of Conduct, adopted as
Appendix B in the Spokane Valley Municipal Code, authorizes the Hearing Examiner to correct
scrivener's errors arising from oversight or omission in Hearing Examiner decisions at any time,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 scrivener's errors, which are obvious from the record or the
content of the decision.
II. ORDER:
It is hereby ORDERED that the Hearing Examiner's written decision of September 27, 2017 in
the above-referenced matter be revised as set forth above,to correct the scrivener's errors described above.
Order Correcting Scrivener's Errors in Decision File No. SUB-2017-0006 Page 1
The deadline for appeal of the plat approved by the decision is still October 23,2017.
On September 28, 2017, a copy of this order and the pages of the decision revised by this order
will be mailed to parties of record(including the Spokane Tribe of Indians) on September 28, 2017.
DATED this 28th day of September, 2017
SPOKANE VALLEY HEARING EXAMINER
� i C ._
Michael C. Dempsey, WSBA#8235
Order Correcting Scrivener's Errors in Decision File No. SUB-2017-0006 Page 2
and requested only an inadvertent discovery plan for the project, or did not comment on the project.
In some cases, the Hearing Examiner found that no likelihood had been shown by the Spokane Tribe
for the discovery of Indian cultural resources on the development site,and required only an inadvertent
discovery plan. See, e.g. Hearing Examiner decisions in File Nos. SUB-2017-0004, SUB-2017-0003,
SUB-2017-0002, SUB-2017-0001, SUB-2016-0005, SUB-2016-0001, SUB-2014-0003, SUB-02-10,
SUB-01-10, SUB-03-09, and SUB-05-08.
86. SVMC 20.20.100 and RCW 58.17.110 require that proposed subdivisions, in relevant part, make
appropriate provision for the public health, safety and general welfare, and for requirements found to
be necessary and appropriate, and for which written standards and policies have been adopted; serve
the public use and interest; and conform with all applicable code provisions. This includes the
preservation of native Indian cultural resources, and other historical resources and artifacts, that are
protected by state or federal law.
87. The application was circulated to the DAHP on May 11, 2017. The DAHP did not submit any
comments regarding the project.
88. Native Indian tribes and the DAHP closely guard disclosure of the location of Indian cultural resources
and artifacts, to prevent them from being dug up and sold or damaged. However, when the Spokane
Tribe's request for a cultural survey is questioned by the Depaitment or an applicant, the tribe needs
to do more than indicate that their "predictive model" shows a development site to be a "high risk
area," for projects in Spokane Valley located outside the shoreline area.
89. To base a request for a cultural survey for a land use application that is not a shoreline application, the
Spokane Tribe needs to disclose sufficient details regarding its modeling, the data inputted into its
model, and/or the reliability of its modeling to allow the Department to objectively determine that
native Indian cultural resources or artifacts may be found on the development site or nearby land, i.e.
a high potential or likelihood of discovery; granting due deference to the qualifications of the tribal
historic preservation officer. This does not require the tribe to disclose the exact location of a known
or suspected artifact, or describe the known or suspected artifact to the Department with particularity,
which may then become public knowledge.
90. A preliminary plat recently heard by the Hearing Examiner for Spokane County, where WCE was the
applicant, provides one example of how the process for requesting the preparation of a cultural
resource survey is workable for all parties. In such case, the DAHP advised that in its professional
opinion the project area has a high potential for containing archaeological sites, and requested the
preparation of a professional archaeological survey of the project area prior to any ground disturbing
activities. The DAHP noted that the project area lies within 1,000 feet of two previously recorded
archaeological sites,and together with the proximity of the Spokane River,indicated a high probability
for containing archaeological resources. A professional survey was prepared for the project, but no
native Indian artifacts were discovered; possibly because the site had been cultivated and significantly
disturbed by residential and agricultural development over the years. The Hearing Examiner adopted
the DAHP's recommendation for an inadvertent discovery plan for the project.
91. A condition of approval should be imposed for the project that requires the Department, prior to final
plat approval, to further consult with the Spokane Tribe of Indians, and with the applicant and DAHP
as appropriate, to determine the likelihood of any native Indian cultural resources being found on the
project site; and that if the Department determines from such consultation process that the site has a
high potential for the presence of such resources, the applicant shall submit a professional
archaeological survey to locate, identify and protect such resources. See Department condition#4 on
Revised HE Findings, Conclusions and Decision File No. SUB-2017-0006 Page 12
4. The applicant shall request an open ditch inspection from the Avista Real Estate Department at
(509)495-2325 prior to utility placement,to verify that utilities are being placed within the easements
shown on the preliminary plat.
SPOKANE TRIBE OF INDIANS:
1. An Inadvertent Discovery plan shall be prepared prior to any grading or construction activity. The
applicant shall coordinate with the Spokane Tribe of Indians and the City.
2. Prior to final plat approval, the Department shall further consult with the Spokane Tribe of Indians,
to give the tribe an opportunity to provide additional information on why its predictive model
characterizes the site as a "high risk area"for cultural resources, and the likelihood of native Indian
cultural resources being found on the project site. If the Department determines from such
consultation process, and other competent archaeological evidence available to the Department, that
the site has a high potential for the presence of such resources, the applicant shall submit a
professional archaeological survey for the project to locate, identify and protect such resources,prior
to final plat approval. See Findings of Fact#'s 65-91 on pages 9-12 of decision.
DATED this 27th day of September, 2017
SPOKANE VALLEY HEARING EXAMINER
Michael C. Dempsey,WSBA#8235
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to SVMC Chapter 17.90 and RCW Chapter 36.70C, the decision of the Hearing
Examiner on an application for a preliminary plat is final and conclusive unless within 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 for appeal purposes is three (3) days after
it is mailed.
On September 27, 2017, a copy of 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 Hearing Examiner's decision will be Monday,October 2,2017, counting
to the next business day.
THE APPEAL CLOSING DATE FOR THIS PRELIMINARY PLAT DECISION WILL BE
OCTOBER 23,2017.
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 Kim Thompson 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.
Revised HE Findings, Conclusions and Decision File No. SUB-2017-0006 Page 22