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CUP-2019-0001 Decision Final.pdfCITY OF SPOKANE VAL EY HEARING EXAMINER FINDINGS, CONCLUSIONS, AND DECISION FtLE NO. CUP-2019-0001 SUMMARY OF PROPOSAL AND DECISION Proposal: The applicant is requesting a Conditional Use Permit (CUP) to operate a residential treatment facility at 3607 S. Mercy Court. The facility is a proposed detox center that will convert an existing single-family residence into a medical detoxification unit serving up to eight patients. Decision: The CUP application is denied. BACKGROUND INFORMATIO N Applicant:Rex Anderson PO Box412 Valleyford WA 99036 Owner:Sequoia Detox Centers LLC c/o Jon Schlenske 2918 E. Colby Avenue, Suite 101 Everett WA 98201 Property Location: The subject property is located approximately 600 feet northwest of the intersection of South Shafer Road and Mercy Court in the city of Spokane Valley, Washington. The property is designated as Tax Parcel No. 4532'1.1610. Legal Description: The property is located in the NE % of Section 32, Township 25 North, Range 44 East, Willamette Meridian, Spokane County, Washington. Zoning: The property is zoned R-2 (Single-Family Residential Suburban District). City of Spokane Valley Comprehensive Plan ("Comprehensive Plan") Map Designation: The property is designated as Single Family Residential (SFR). Site Description: The site is 22,000 square feet in size and flat with no remarkable terrain or land features. The lot is roughly pentagon-shaped with frontage on a cul-de-sac at the terminus of Mercy Court. The property is currently developed with a single-family home and located within a residential neighborhood. The 2,512 square foot home with an attached garage was constructed in 1977. A detached garage was added to the property in 1994. There is also an in-ground swimming pool in the back yard. Page 1 ol 14 Re: Conditional Use Permit to ) operate a residential treatment ) facility in a converted, existing ) single-family residence located ) at 3607 S. Mercy Court ) FINDINGS OF FACT Surrounding Conditions and Uses: The properties to the north, south, east, and west are designated as SFR in the Comprehensive Plan and are zoned R-2. The properties immediately bordering the site to the south and west are improved with single-family residences, as are all the lots along Mercy Court. Developed residential neighborhoods exist to the southeast, south, southwest, west, and northwest from the sile. The Ponderosa Elementary School is also located to the southwest of the site, a distance of approximately 0.4 mile as the crow flies. To the north and near northwest, there is vacant land owned by the Redeemer Lutheran Church. To the immediate northeast of the site is the Redeemer Lutheran Church building, which includes a preschool on the far side of the complex. The subject property shares a border with the driving/parking area ofthe church. The church building is less than 50 feet from the property border and about 100 feet from the subject residence. Project Description: Sequoia Detox Centers is requesting a CUP to operate a medical detoxification facility (a "detox cente/') at 3607 S. Mercy Court. The detox center would provide withdrawal management services for patients that are addicted to drugs and/or alcohol. The detox center would serve men and women ages 18 and older. The detox center would serve up to eight patients at a time with the patients sharing a room based on gender. The average length of stay for each patient would be three to seven days. The admission process would take place at an off-site location, and patients would then be transported to the facility by detox center staff. Following treatment, the patients would be transported by staff to an off-site location according to their treatment plan. Visitors would not be permitted. The anticipated number of admissions and discharges is four patients per week. The proposed detox center would operate 24 hours per day, seven days a week. The on- site staff would consist of a registered nurse, who would be on site 24 hours per day, and a iicensed advanced registered nurse practitioner, who would be on site 16 hours per week. There would be at least four staff members on duty at all times with a patient-to-staff 'atio of 2:1 (two patients per staff member). The applicant intends to renovate the residence in order to bring the facility up to the City of Spokane Valley Municipal Code (SVMC) standards and Washington State Department of Health requirements for a residential treatment facility. A privacy fence would be installed along the back yard perimeter of the property consistent with SVMC fencing requirements. No fencing is proposed within the front yard. Pursuant to federally mandated health information privacy rules, no business signage is proposed to be placed on the home or the property. PROCEDURAL INFORMATION Authorizing Ordinances: SVMC Title 19 (Zoning Regulations), SVMC Title 21 (Environmental Controls), and SVMC Title 22 (Design & Development Standards). Notice of Application: Mailed and Published: August 30, 2019 Notice of Revised Application: Mailed: September 5, 2019 Notice of Public Hearing: Mailed and Posted: October 1 5, 2019 Published: October 11 & 18.2019 Page 2 ol 14 Public Hearing Date: October 30, 2019 Site Visit: October 30, 2019 State Environmental Policy Act (SEPA): A Determination of Non-Significance (DNS) was issued on October 4, 2019. Any appeal of the DNS was due on October 18, 2019. The DNS was not appealed. Testimony: Kelsey Johansen '1006 N Adkins Court Post Falls lD 83854 Rex Anderson PO Box 412 Valleyford WA 99036 Chris LaPlante 1 1606 E 48th Avenue Spokane Valley 99206 Gary Kivett 3604 S Ridgeview Drive Spokane Valley WA 99206 Jeff Beaulac 3824 S. Sundown Drive Spokane Valley WA 99206 Joshua Clark 3705 S Mercy Court Spokane Valley WA 99206 Erik Lamb Deputy City Attorney City of Spokane Valley 10210 E Sprague Avenue Spokane Valley WA 99206 John & Jennifer Schlenske 19202 E 11th Avenue Spokane Valley WA 99016 Joe Cox 2525 S Boulevard Court Spokane Valley WA 99037 Albert Merkel 3927 S. Sunderland Drive Spokane Valley WA 99206 Chris Truax 4919 S Van Marter Road Spokane Valley WA 99206 Wanda Reynolds 36l l S Mercy Court Spokane Valley WA 99206 William Strong 3905 S Sundown Drive Spokane Valley WA 99206 Meegan Cunningham 4716 S Tipaway Street Spokane Valley WA 99206 Lori Barlow, Senior Planner City of Spokane Valley Building and Planning Division 1O21O E Sprague Avenue Spokane Valley WA 99206 Page 3 of 14 Martin Palaniuk, Planner City of Spokane Valley Building and Plannlng Division 10210 E Sprague Avenue Spokane Valley WA 99206 Also present at the hearing, but did not testify Nick Cox Mercy Court Erik Wolfrum Ponderosa Drive Dixie Beasley Sundown Drive Exhibits: Gary Smith Mercy Court Michael Hommer Sundown Drive Jerilyn Matthews Sundown Drive 2. 3. 4. 5. 6. 7. 8. L 10. 11. Vicinity Map Application Submittal Spokane County Board of County Commissioners Resolution No. 19-1 180 Site Plan of Record Determination of Completeness Notice of Application and Revised Notice of Application Determination of Non-Significance (DNS) Notice of Public Hearing Agency Comments Public Comments Building Plans The following exhibits were received at the hearing: 12. Hardcopy of Planning's PowerPoint presentation13. List of affirmative signatures in support of Mr, Merkel's statement on behalf of Ponderosa Neighborhood14. Memorandum of Understanding between Sequoia Detox Centers LLC and Ponderosa Neighborhood FINDINGS AND CONCLUSIONS The Hearing Examiner has reviewed the application and the evidence of record with regard to the application and makes the following findings and conclusions: 1. The proposed detox center qualffies as an 'essential public facility" within the meaning of state and local law. The Sequoia Detox Center has proposed to operate a commercial medical facility within an established, residential neighborhood. The R-2 zoning ofthe site and the surrounding land would not normally allow this type of use. However, because the proposed use has been characterized as an "essential public facility" (EPF), the use may be authorized despite the residential zoning of the area. The characterization of the detox center as an EPF is critical to the consideration of the proposal. As a result, the Hearing Examiner Page 4 ol 14 Connie Ross Bernhill Court deems it necessary to first discuss, as a threshold matter, whether the proposed use qualifies as an EPF. The term "essential public facility" refers to facilities that are typically difficult to site. See Revised Code of Washington (RCW) 36.70A.200(1); see a/so Washington Admtnistrative Code WAC) 365-196-200(9); see a/so WAC 365-1 96-550. EPFs include both new and existing facilities and need not be owned by the public to qualify as EPFs. See WAC 365- 196-550(1)(b)-(c). Examples of EPFs include airports, state and local correctional facilities, mental health facilities, group homes, and "substance abuse facilities," among others. See ld.; see a/so WAC 365-196-550(1)(d) (specifically including "in-patient facilities, including substance abuse facilities"). The primary characteristics of an EPF are: ('l) whether it provides or is necessary to provide a public service, and (2) whether it is difficult to site. See WAC 365-196-550(1Xf). The regulations provide criteria to determine whether a facility is "difficult to site." See WAC 365-196-550(2). Among those criteria is the following: "The public facility has, or is generally perceived by the public to have, significant adverse impacts that make it difficult to site." See WAC 365-196-550(2)(c). The Hearing Examiner concludes that the proposed detox center qualifies as an "essential public facility," for a number of reasons. First, the Growth Management Act (GMA) and its associated regulations specifically list in-patient facilities to treat substance abuse as an example of an EPF. Therefore, the proposed detox center is precisely the type of use that qualifies as an EPF. Second, the proposed detox center fits the statutory definition of an EPF. The term "essential public facility" is broadly defined to include a facility that provides a public service and is difficult to site. A center for treating drug addiction certainly provides a necessary public service. This country is in the grips of an opioid crisis, and alcohol addiction continues to be a pervasive social ill. Moreover, an addiction treatment center would likely be "difficult to site," given the stigma that is associated with such facilities. One need only read the comments on this proposal to conclude that that there is a public perception that such facilities will have a significant adverse impact on a neighborhood. Third, the city's determination that the proposed use constituted an EPF was undisputed City Staff determined that the proposal was an EPF. Spokane County also concluded that the proposed facility was an "EPF," after considering the question in accordance with the regional siting process. The only question at the hearing was whether the proposed detox center should be allowed in that location, not whether the use qualified as an EPF. Under the circumstances, the Hearing Examiner concludes that the proposed detox center constitutes an EPF and, therefore, the proposal must be considered in light ofthe unique rules that apply to such uses. 2. The proposed detox center is allowed as an "essential public facility" in the R-2 zone, provided the citeria for a conditional use permit are satlsfled. The uses allowed in each zoning district are set forth in the Permitted Uses Matrix. See SVMC 19.60.010(A). The category of uses entitled "Public/Quasi-Public" includes EPFs. See SVMC 19.60.050. According to the matrix, EPFs are allowed as a regional siting use Page 5 of 14 (designated as "R") in all zones except Mixed Use (MU) and Parks and Open Space (POS). See rd. ln other words, an EPF may be allowed in the R-2 zone. See SVMC 19.60.040(C). Such proposals trigger a review under the regional siting process. See td. The City of Spokane Valley has entered into an interlocal agreement relating to the siting of EPFS. See SVMC 19.90.010. Pursuant to that agreement, and in accordance with city code, an application for an EPF must first be submitted to Spokane County. See SVMC 19.90.010(C). The Board of County Commissioners (BOCC) is responsible for determining whether a specific proposal is an EPF and, if so, its level of significance. See Exhibit 3 (Memorandum of J. Pederson July 3, 2019, citing BOCC Resolution #2-0812 & Resolution #3-0521). That process was followed in this case. On June 26,2019, the proponent submitted a Request for Determination of Appropriate Siting Process with Spokane County. See Exhibit 1, p. 4. On July 16, 2019, the BOCC held a public meeting to consider the Sequoia application. See Exhibit 3 (BOCC Resolution 19-1 180). The BOCC concluded that the detox facility is an EPF. See ld However, the BOCC determined that it was an EPF of /ocal significance only. See id. An EPF of local significance is a facility that provides a needed public service, but only affects or potentially affects residents or property within the jurisdiction in which they are located. See SVMC 19.90.020. Because the detox center only has local significance, the proposal was exempt from the regional siting process. See Exhibit 3 (BOCC Resolution 19-1 180). The City of Spokane Valley has not adopted a /ocal siting process for EPFS, either through devefopment regulations or within its Comprehensive Plan. Testimony of M. Palaniuk. And, as stated above, the regrbnal siting process is not applicable to EPFs of only local significance. However, all EPFs located within the City of Spokane Valley require approval of a CUP pursuant to Chapter 19.'150 SVMC. See SVMC 19.90.010(E). As a result, the proposed detox center should be considered in light of the criteria applicable to CUPs, in the same fashion as other CUP applications. Testimony of M. Palaniuk & L. Badow. ln order to operate the proposed detox center, the applicant must satisfy the requirements for a CUP. A CUP can only be granted if the applicant first demonstrates that the proposed use is consistent with the Comprehensive Plan and the character and appearance ofthe existing or proposed development in the vicinity of the subject property. See SVMC 19-150.030(4)(1). After considering this record carefully, the Hearing Examiner concludes that the proposed detox center is not consistent with the Comprehensive Plan or with the characler of the neighborhood. The proposed use is a commercial, medical treatment center providing in-patient care for individuals suffering from alcohol and drug addiction. See Exhibit 1, p. 2. The facility will operate 24 hours a day, seven days a week. See id. Approximately seven staff members will work at the facility. See SEPA Checklist u B(8Xi). The center will serve up to eight patients at a time, with an average length of stay for each patient being three to seven days. See rd. The patients will be brought to the facility to undergo medically monitored detoxification. See rrC. The anticipated number of admissions and discharges is four patients per week, and these activities would take place between 7:00 a.m. and 7:00 p.m on weekdays. See rd, p. 2 & 14. Thus, the patients will be present for short periods of time, i.e. there will be regular tumover in the people who will be staying at the facility. Page 6 of 14 3. The proposed detox center is not consistent with the Comprehensive Plan or with the character of the residential neighborhood. Although the outward appearance of the residence will be largely the same, the residence will be substantially renovated to make it suitable for use as a medical facility. Testimony of J. Cox; see a/so Exhibit 1, p. 2. The existing driveway must be widened to 20 feet to comply with the minimum commercial drive isle width under the SVMC. See Memo of C. Riggs September 30, 2019. The driveway approach will also need to be removed and widened. See rd Eight off-street parking stalls must be installed to accommodate the use. See Exhibit 1 , p. 14. The proposed parking will be located in front of the existing attached garage and the detached accessory building. See Exhibit 1, p. 5; see a/so Exhibit 12 (Project Description - Site Plan). Given the nature of the use, the business will be required to pay commercial, rather than residential, sewer rates. See Memo of C. Depner September 27, 2019. The Hearing Examiner agrees with the Staff that the proposed detox center is not consistent with Land Use Goal LU-GI, which states the objective to maintain and enhance the character and quality of life in Spokane Valley. See Exhibit 1, p.4-5; see a/so Comprehensive Plan, Chapter 2, p.2-23.The proposed facility is also inconsistent with Land Use Policy LU-P7, which calls for the protection of residential neighborhoods from incompatible land uses. See Comprehensive Plan, Chapter 2, p. 2-23. The proposal would result in the placement of a commercial use in a cul-de-sac at the end of a residential street. The only access to and from this medical business will be through that street, which is lined with existing single-family homes. The site is situated in an established residential neighborhood. The only uses in the immediate vicinity that are not residences are the types of uses that would be considered compatible with or in service of residential living. ln this case, those uses include the church adjacent to the site (which includes a preschool) and the elementary school situated about a half mile from the site by car. There is very little about this proposal that is consistent with a residential use or a residential neighborhood, with the exception of the continuing outward appearance of the structure itself. As the Staff noted, the prevailing character and appearance in the vicinity of the site is single-family residential homes with typical landscaping and traffic patterns. See Exhibit 1, p. 5. The only reason that this proposal can even be considered is because the facility has the distinction of qualifying as an EPF. But-for this designation, this type of commercial use would not be permitted in this neighborhood, whether by CUP or otherwise. See SVMC 19.60.050, Permitted Uses Matrix (Medical and Office, for example, are not permrtted in the R-2 zone). It must be acknowledged, however, that the proposal is consistent with other objectives in the Comprehensive Plan, as the Staff points out. See Exhibit 1, p. 4. Specifically, the proposal is supported by the Land Use Goal LU-G2, which encourages land uses that are "essential" to Spokane Valley residents. See Comprehensive Plan, Chapter 2, p.2-23. The detox center would provide an important public service in furtherance of the public health of Spokane Valley residents. See Exhibit 1, p. 4. ln addition, as has been acknowledged, the proposed use qualifies as an EPF. See SVMC Appendix A (Definitions). Given that reality, it would be hard to argue that facilities of this type are not "essential" within the meaning of the Land Use Goal LU-G2. That being said, the project's consistency with some aspects of the Comprehensive Plan does not cure the inconsistency between the proposed use and the residential character of the neighborhood. The primary feature of this proposal is the installation of a commercial medical facility at the terminus of a residential street, in an established residential Page 7 of 14 ln a typical case, the conclusion that the proposal is not consistent with the Comprehensive Plan would end the analysis. The CUP application would be denied for failure to satisfy the first criterion for the issuance of a CUP. However, this is not the typical case-the designation ofthe detox center as an EPF affects the legal analysis. Specifically, the Hearing Examiner must consider whether he has the authority to deny a request for an EPF based upon the failure to satisfy a CUP criterion. The answer to this question depends upon an interpretation of the relevant provisions of the GMA. 4. The Heaing Examiner is authoized to deny an "essential public facility" of local significance if the proposed facility does not satisfy the requirements for issuance of a conditional use permit. The GMA requires that the comprehensive plan of each city and county include provisions for siting essential public facilitiesl. See RCW 36.70A.200(1). This is necessary because EPFs, such as prisons and hospitals, are critical to address pressing social needs, frequently on a regional or statewide basis. However, the GMA also recognizes that EPFS are typically difficult to site precisely because they can cause significant impacts to their immediate surroundings. lt would not be surprising, for example, if the residents in every proposed location objected to the development of a mental health institution, a housing project for sex offenders, or a prison in their area. The state legislature anticipated this problem by prohibiting local jurisdictions from adopting comprehensive plan policies or enacting development regulations designed to prevent the siting of EPFs. See Washington State Depa,Tment of Corrections v. City of Kennewick, S6 Wn.App. 521,533-U,937 P.2d 1119 (1997). Specifically, the GMA states: No local comprehensive plan or development regulation may preclude the siting of essential p ubl ic facil ities. See RCW 36.70A-200(5). This declaration seems straightforward enough. However, a question still arises as to what was meant by the word "preclude" in this context. lnterpreting this provision in GMA cases, the courts have concluded that the word "preclude" means "to render impossible or impracticable." See City of Airvvay Heights v. Eastern Washington Grov,tth Management Hearings Board, 193 Wn.App. 282, 286, 376 P.3d 1112 (20'16). The term "impracticable" means "incapable of being performed or accomplished by the means employed or at command." See City of Des Moines v. Puget Sound Regional Councri, 108 Wn.App. 836, 847, 988 P.2d 27 (1999); see a/so WAC 365-196-550(3)(a)(i). lmpractlcability may arise from a range of local actions, such as restrictive zoning, comprehensive plan policies directing opposition to a regional decision, or the imposition of unreasonable conditions or requirements. See WAC 365-1 96-5s0(3)(a)(ii). I The City of Spokane Valley has fulfilled this requirement by including provisions for "siting Essential Public Facilities" within its Comprehensive Plan. See Comprehensive Plan, Chapter 7, Capital Facilities & Public Services, p. 7-127. However, these provisions are limited to a description of the regional siting process for EPFs of regional, countywide, or statewide significance. See d. neighborhood. lt is true that this type of facility provides an important social service, as recognized by the Comprehensive Plan. However, it remains clear that the proposal is not consistent with the goal to maintain and enhance the character or the neighborhood, or the policy to protect residential neighborhoods from incompatible uses. Page 8 of 14 It is clear enough that a local jurisdiction cannot adopt a comprehensive plan policy or a development regulation that is desrgned to prevent an EPF within its borders. See e.g. City of Des Moines v. Puget Sound Regional Council, 108 Wn.App. 836, U7 n.11,988 P.2d 27 (1999) (city's policies and regulations authorizing the city to stop trucks moving fill, thereby granting itself the power to prevent work on the Sea-Tac expansion, "precluded" an EPF in violation of RCW 36.70A.200). lt also follows that a city or county cannot reserve to itself the general discretion to deny an application for an EPF. The state regulations, for example, provlde: A local juisdiction may not include crtteia in its land use approval process which would allow the essential public facility to be denied, but may impose reasonable permitting requirements and require mitigation of the essential public f ac i I ity's adv e rse effects. See WAC 365-196-550(3Xb) (emphasis added). lf the prohibition of RCW 36.70A.200(5) is read in isolation, the Hearing Examiner could not deny the proposed detox facility based upon the failure to satisfy the conditional use standards. ln other words, the fact that the proposal is inconsistent with the Comprehensive Plan (the first conditional use criterion) would be legally irrelevant. To deny the EPF for lack of consistency with the Comprehensive Plan would be tantamount to a local exercise of discretion over the siting of an EPF. Moreover, a decision to deny an EPF on such grounds would certainly constitute the 'preclusion" of the EPF based upon a comprehensive plan policy or a development regulation, in apparent violation of RCW 36.70A.200(5). The Hearing Examiner does not read the terms of RCW 36.70A.200(5) that narrowly, however. lnstead, RCW 36.704.200(5) must be considered in context, in light of GMA policies, and with an understanding of the type of EPF being proposed. The reason that EPFs are allowed despite the local impacts that may result, irrespective of local plans or regulations, and over the objection of the local residents, is because the public need for facilities of statewide or regionalicountywide significance takes precedence over the local impacts or costs. Moreover, the regional siting process calls for a robust analysis of a variety of factors that influence the siting of an EPF. ln this way, the impacts to local communities can be considered, avoided, or mitigated as much as possible. And in some situations the impacts would be unavoidable and would have to be endured to the advance the greater good. Page 9 of '14 lf the regional siting process applied to this case, for example, a geographic and demographic analysis would be completed to identify a range of potential sites for the EPF. See Spokane County Regional Siting Process for Essential Public Facilities, July 25, 2002, p.9. This analysis would address a myriad of factors, including but not limited to public health and safety, access and transportation capacity, countywide equitable distribution, consistency with existing land use and development in adjacent and surrounding areas, and compatibility with existing comprehensive plan land use designations and development regulations for the site and surrounding areas. See ld, p. 10. Sites are ranked based upon a formula that reflects the extent to which each site satisfies the siting requirements for the proposed facility. See rd The potential for negative impacts and possible mitigation strategies would also be considered. See d., p. 9. The end product of this stage of evaluation is a list of approximately ten potential sites. See d. ln the next stage of analysis, a public process would be conducted to assess the political, economic, social, and legal impacts of the proposed facility. See td This public assessment would result in a general description of the relative impacts of the EPF at each of the proposed locations. See rd. The findings at this stage will be balanced against the public need for the proposed facility, and justification, if any, for why the proposed facility needs to be in a pafticular proposed location. An impoftant ingredient at this stage is the dialogue that takes place between the proponent and the public regarding mitigation slrategles fo address potential adverse impacts. See rd., p. 1 1. Once the public process was completed, the list of potential sites would be narrowed to three sites. See ld. A scoring matrix would then be applied to rank the sites in order of preference. See ld Thereafter, a final public hearing would be conducted to evaluate the site ranking. See ld. Additional evaluation of the impacts of the EPF would then take place. That evaluation includes consideration of impacts on regional urban planning, site development issues, and cost sharing. See ld., p. 11-12. Once a final selection of the site is made, the applicant must then work directly with the local jurisdiction to fulfill all the regulatory requirements to permit construction or operation of the EPF. See id., p. 12. The rigorous evaluation process involved in the regional siting process justifies the siting of an EPF despite the potential impacts on the local community. This policy justification is absent in this case, however. The proposed EPF was determined to be of local significance only and, therefore, exempt from the regional siting process. As a result, the process did not involve assessing the public need for the facility, identifying potential sites, following a public evaluation process, distilling the potential sites to the most viable candidates, etc., before making a final site selection. There is no evidence in this record, for example, that the proposed site was selected as the most appropriate location, after considering the reasonable alternatives. The City of Spokane Valley has not adopted a local siting process for EPFS. Testimony of M. Palaniuk.ln the absence of local siting criteria, the proposed EPF is to be evaluated through the conditional use criteria, like any other CUP application. Testimony of M. Palaniuk. Stated another way, applying the CUP criteria is the only "local siting process" for EPFs of only local significance. Testimony of L. Badow.The City's position thatthe proposal should be evaluated underthe conditional use standards is plainly supported by the GMA regulations: tf an essential public facility does not present siting difficulties2 and can be permifted through the normal development review process, project review should be through the normal development review process otherwise applicable to facilities of its type. See WAC 365-196-550(5Xd). 2 lf, by contrast, the proposal does present siting diffculties, then lhe project should be reviewed through the regional siling process. See WAC 365-196-550(5)(e). However, in this case it was determined that the proposal, being of local signiflcance only, was exempt from the regional siting process. See Exhibit 3 (BOCC Resolution 19-1180). Page 10 of 14 The Hearing Examiner concludes that RCW 36.70A.200(5) is intended to prohibit local jurisdictions from obstructing the siting of regionalEPFs. The statute is not intended to restrict local jurisdictions from applying conditional use criteria (or other local standards) to localEPFs. Thus, the Hearing Examiner's authority over local EPF applications includes the power to deny such an application when the local standards are not satisfied. Any doubts the Hearing Examiner had about these conclusions were alleviated by the Growth Management Hearings Board (GMHB) in Kng County v. Snohomish Counfy, CPSGMHB Case No. 03-3-0011, FDO (October 13,2003). ln that case, Snohomish County adopted an ordinance (Ordinance No. 03-006) amending its permit review procedures for EPFs. See Kng County v. Snohomish County, CPSGMHB Case No. 03-3-001 1 , FDO (October 13, 2003), at 3. This ordinance was adopted in anticipation of a proposal to site a regional wastewater facility within its borders King County challenged the ordinance before the GMHB, contending that it violated various provisions of the GMA. See ld., at 1. Among other things, King County contended that the ordinance violated RCW 36.70A.200(5) because it went beyond regulating design or imposing reasonable conditions and allowed an EPF to be denied based upon both general conditional use criteria3 as well as a special set of conditional use criteria that applied only to EPFs. See d, at 6. The GMA plainly provides, the GMHB noted, that no local comprehensive plan or development regulation may "preclude the siting of essential public facilities-" See ld. (citing to RCW 36.70A.200(5)). The issue before the GMHB, as relevant here, was whether the special and general conditional use criteria adopted by Snohomish County, which reserved to the county the discretion to deny EPF applications, "precluded" EPFs in violation of RCW 36.70A.200(5). ln considering the merits of the challenge, the GMHB emphasized that there is a critical difference between a "local EPF'and a regional or state-sponsored EPF. The GMHB stated: EPFs that are sited by a regional or state agency are distinct from those that are 'sited by" a local jurisdiction or a private organization or individual. When a local jurisdiction is contemplating its own EPF, public or pivate, it is free to establish a non-preclusive srtrng process with any criteria it deems relevant. However, when the siting decision is made by a state or regional agency, the role of the host jurisdiction is much more limited. lt may attempt to influence the siting decision "by means such as prcviding information to the regional body, commenting on the altematives under consideration, or expressing its local preference in its comprehensive plan." Sound Transit, at 6. But once a sffe has been chosen regionally, local plans and regulations cannot preclude it, even if those plans predate the EPF's conception. 3 Among other things, the general conditional use criteria authorized the hearing examiner to consider whether the proposal was "consistent with the mmprehensive plan" or was 'materially detrimental to uses or property in the immediate vicinig;' See Kng County v. Snohomish County, CPSGMHB Case No.0$$001'1, FDO (October 13, 2003), at 4. Page 11 ol 14 See d., at 11. While analyzing the special conditional use criteria adopted by the county, the GMHB explained how this difference affected its analysis: Significantly, these citeria do not distinguish between those EPFS that a local jurisdiction has the authority to site and those EPFs that the iuisdiction has a statutory duty to accommodate. ... Many of the criteia in 30.42D.070 are directly relevant to the siting decision, including (1) demonstrated need, (3) investigation of altemative sites, and (6) propoftionality. Finding of Fact 5. These may be appropriate when applied to a local EPF that is within the coun|'s authoity to site. However, it is not appropiate for a local government to create criteria that purpoft to revisit or "second-guess" a siting decision that has been made by a regional or state ent$. See rd., at 1 1. The GMHB ultimately concluded that Ordinance No. 03-006 was fundamentally flawed because it purported to "authorize denial of applications for all EPFS, including those proposed by state and regional sponsors..." See rd, at12 (emphasis added). The GMHB determined that the ordinance facially violated RCW 36.704.200(5). See ld. ln reaching this conclusion, however, the GMHB rejected any inference that the conditional use process could not be applied to condition or deny local EPFs: It is important to note that the Board does not take rssue with the use of the CUP mechanism, per se. For many types of EPFs, such as those that are not sponsored by state or regional entities, a CUP may continue to be an appropriate tool. However, when a permit process, regardless of rts name, purpofts to reseNe to a local govemment the discretion to deny that which it may not lavvfully deny, it will be found to violate RCW 36.70A.200. lf, on remand, Snohomish County wishes to continue to use the CUP tool, it must first differentiate between those EPFs that have state or regional sponsors ard those that do not. See d, at 13 Following the entry of the GMHB's final order, Snohomish County attempted to cure the GMA violations by adopting Ordinance No. 04-019, establishing a new set of EPF regulations. See Kng County v. Snohomish County, CPSGMHB Case Nos. 03-3-0011, 03-3-0025, & 04-3-0012, Order Finding Continuing Noncompliance, Etc. (May 26, 2004), at 3. The new regulations create a "dual track" system for handling EPF applications. See rd., at 6. One track sets forth the process to consider "local EPFS." See ld. The second track describes the process for considering "regional, state, and federal EPFS." See rd. ln response, King County filed another petition for review, contending the new regulations still violated the GMA. See d., at 1. The GMHB again found that Snohomish County's regulations did not comply with GMA, at least with respect to the regional siting process. See id., at 12. The GMHB concluded that the county could not deny a regional EPF under the conditional use criteria. See ld, at 12. ln particular, the county could not deny a regional EPF due to inconsistency with the county comprehensive plan or as materially detrimental to uses or property in the immediate vicinity. See ld. However, the GMHB made it clear that the county retained discretion to deny local EPFS, stating: Page 12 ol 14 The Board agrees with Snohomish County that the twelve criteia for local EPFs (listed at SCC 30.42D.080) and the prospect of denialwhen these criteria are not satisfle4 are appropriate when applied to local EPF applications. Likewise, the Board finds that the additional criteria required for a conditional use permit (SCC 30.42D.100) are within the discretion that RCW 36.70A.200 allows for local EPF applications. Seerd,at11. The Hearing Examiner concludes that the State Legislature intended to prevent local jurisdictions from undermining or preventing the development of regional EPFS. This is the purpose of RCW 36.70A.200(5), and the associated GMA regulations. lt makes sense that local jurisdictions should not be allowed to preclude EPFs that serve regional, countywide, or statewide purposes. The justification for oveniding local plans or regulations is not present, however, when the proposed EPF is of only local significance. Local EPF applications, rather, are subject to the local criteria that ordinarily apply to the type of use being proposed. ln this case, the proposed medical facility is required to satisfy the criteria for a CUP. Because the applicant cannot satisfy the first criterion for that type of permit, the application must be denied. cio City of Spokane Office of the Hearing Examiner 808 W. Spokane Falls Blvd. Spokane WA 9920'l 509-625-6010 hearingexam iner@spokanecity. org Page 13 of 14 DECTSTON Based on the findings and conclusions above, it is the decision of the Hearing Examiner to deny the proposed conditional use permit for the Sequoia Detox Center. DATED this 15h day of November 2019. Brian T. McGinn City of Spokane Valley Hearing Examiner NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Chapter {7.90 of the Spokane Valley Municipal Code (SVMC) and Chapter 36.70C of the Revised Gode of Washington (RCW), the decision of the Hearing Examiner on an application for a conditional use permit is final and conclusive unless within 2l calendar days from the date of issuance of the Hearing Examineds decision, a pafi with standing files a land use petition in Superior Court pursuant to RCW Chapter 36.70C. On November 15, 2019, a copy of this decision will be mailed by regular mail to the Applicant and by verifiable electronic mail to all government agencies and persons entitled to notice under SVMC 17.80.130(4). Pursuant to RCW Chapter 36.70C, the date of issuance of the Hearing Examiner's decision is three (3) days after it is mailed. The date of issuance of the Hearing Examiner's decision will be November 18,2019. THE APPEAL CLOSING DATE FOR THE CONDITIONAL USE PERMIT DECISION IS DECEMBER 9,2O1g The complete record in this matter is on file during the appeal period with the Office of the Hearing Examiner, 808 W Spokane Falls Boulevard, Spokane, Washington, 99201; and may be inspected by contacting Kim Thompson at (509) 625-6010. The file may be inspected during normal working hours, listed as Monday-Friday ofeach week, except holidays, between the hours of8:30 a.m. and 4:30 p.m. After the appeal period, the file may be inspected at the City of Spokane Valley Community & Public Works Department-Building and Planning Division, located at 10210 E. Sprague Avenue, Spokane Valley, WA 99206; by contacting staff 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 36.708.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. 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