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PE-1679A-92SPOKANE COUNTY HEARING EXAMINER RE: Application to Alter the Final Plat of Armstrong Estates; Applicant: Melvin and Richard Armstrong File No.: PE-1679A-92 FINDINGS OF FACT, CONCLUSIONS, AND DECISION I. SUMMARY OF PROPOSAL AND DECISION Proposal: Application to alter a final plat to delete dedicatory language prohibiting the issuance of building permits for 15 lots in the final plat until public sewer is available. Decision: Denied without prejudice. II. FINDINGS OF FACT AND CONCLUSIONS The Hearing Examiner has reviewed the altered plat application and the evidence of record, and hereby adopts the following findings of fact and conclusions: A. GENERAL INFORMATION: Applicant: Melvin and Richard Armstrong, c/o Stan Schultz, 1100 U.S. Bank Building, Spokane, WA 99201 Location: Generally located south of and adjacent to Valley Way, approximately 650 feet east of Conklin Road in the SE'/4 of Section 13, Township 25 North, Range 44 EWM, Spokane County, Washington. Legal Description: As shown on the Final Plat of Armstrong Estates, Book 22,•Page 64-65. Zoning: Urban Residential-3.5 (UR-3.5) Comprehensive Plan Category: The site is designated in the Urban category of the Spokane County Generalized Comprehensive Plan. The site is also designated in the Priority Sewer Service Area identified in the Plan. Environmental Review: The proposal is exempt from review under the State Environmental Policy Act (WAC 197-11-800(6). Site Description: The Armstrong Estates site is 10.28 acres in size and is relatively flat. The site is bounded by Valley Way Avenue on the north, and includes a 50 foot right of way for Main HE Findings, Conclusions and Decision PE-1679A-92 Page 1 Avenue along the southerly border of the site. Streets in the final plat have been substantially improved. The 15 lots that can be developed in the final plat without public sewer abut Shamrock Street and Valley Way Avenue. Eleven of such lots have been developed with single-family manufactured homes on septic tanks, and septic tank permits have been issued for the other four lots according to the applicant. The 15 lots subject to the current plat alteration application lie vacant in a partially graded condition. Surrounding Conditions: Main Avenue extends west from the site to Conklin Road. The unimproved right of way of Carnine Street, with a width of 20 feet, extends from the southwest corner of the site north to Sprague Avenue. The nearest public sewer connection is the County's sewer interceptor lying south of Sprague Avenue. The interceptor is located in an old railroad right of way conveyed to Spokane County, running parallel to Sprague Avenue midway between Sprague Avenue and Fourth Avenue (extended). Project Description: Amendment to dedication for the final plat of Armstrong Estates to delete the following language: "No building permits for Lots 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, and 23, Block 2, as shown hereon, may be issued until such time as sufficient evidence that public sewer is available to said lots.". The applicant would like to develop such lots with on -site sewage systems, double -plumbing and dry line sewers until such time as public sewer is available to the site. The applicant offered to install or bond for construction of a dry line sewer south down a 20 foot right of way for Carnine Street to Sprague Avenue, and connect the project to public sewer when it is installed in ofalong Sprague Avenue. • B. PROCEDURAL INFORMATION: Applicable Regulations: Plat alterations are authorized by RCW 58.17.215. RCW 58.17.217 and RCW 58.17.330 authorize plat alteration applications to be heard by a hearing examiner. The Spokane County Hearing Examiner Ordinance authorizes the Hearing Examiner to hear and decide plat alteration applications. Spokane County Resolution No. 96-0171, Attachment A, paragraph (7)(f). Hearing Date and Location: September 11 and October 11, 1996, Spokane County Public Works Building, Lower Level, Commissioners Assembly Room, 1026 West Broadway, Spokane, Washington. Notices: Mailed: August 23, 1996 Published: August 23, 1996 Compliance: The legal requirements for public notice have been met. Hearing Procedure: Pursuant to County Resolution No. 96-0171 (Hearing Examiner Ordinance) and County Resolution No. 96-0294 (Hearing Examiner Rules of Procedure). Site Visit: September 11, 1996 (after public hearing); October 29, 1996. HE Findings, Conclusions and Decision PE-1679A-92 Page 2 Testimony: Steve Davenport, Planner II Spokane County Division of Building and Planning 1026 West Broadway Spokane, WA 99260-0240 Donald Lynch Spokane County Health District 1101 West College Avenue Spokane, WA 99210 2095 Robert Johnson 315 North Shamrock Veradale, WA 99037 Jerry Armstrong 16506 East Vixon Court Veradale, WA 99037 Terry Schimke 16712 East Valleyway Veradale, WA 99037 Jim Red Division of Utilities 1026 West Broadway Spokane, WA 99260 Stan Schultz 1100 U.S. Bank Building Spokane, WA 99201 James McDonald 303 North Shamrock Veradale, WA 99037 Janet and Stan Rhodes 16422 East Valleyway Veradale, WA 99037 Jim Driggers 16704 East Valleyway Veradale, WA 99037 Items Noticed: Spokane County Comprehensive Plan, Zoning Code, County Code; Comprehensive Wastewater Management Plan 1996 Interim Update; Spokane County Health District Rules and Regulations for On -Site Sewage Disposal Systems for Spokane County (1995); Spokane County Resolution Nos. 96-0585, 96-0171 and 96-0294. Items Incorporated by Reference: Commissioners' Document No. 93-0491 (Spokane Board of County Commissioners Findings of Fact, Decision and Conditions in Building and Planning Division File No. PE-I679-92/Preliminary Plat of Armstrong Estates), executed on May 4, 1993; Commissioners' Document No. 94-1163 (Resolution Correcting Conditions of Approval, executed on August 23, 1994; and Building and Planning File No. PE-1679A-92. Procedural Matter: A public hearing was held on the application on September 11, 1996. At the conclusion of the hearing, the matter was continued for 30 days at the request of the applicant to allow the gathering of additional information. A second public hearing was held on the application on October 11, 1996. The testimony and documents submitted for both hearings are included as part of the record. At the October 11 hearing, the applicants' attorney requested that information from the record of proceedings conducted in Building and Planning File No. ZE-29-96, regarding plans by an adjacent property owner to connect to public sewer, be incorporated into the record. The Hearing Examiner did not rule on this request at the public hearing, but denies such request because (1) sufficient information regarding such adjacent owner's plans is already in the record, (2) approving the request would unduly expand the record, and (3) neighboring property owners who testified in opposition to the plat alteration proposal would have no opportunity to rebut such information. HE Findings, Conclusions and Decision PE-1679A-92 Page 3 C. PLAT ALTERATION ANALYSIS: 1. The application for plat alteration is supported by a sufficient number of those persons having an ownership interest in the subdivision lots to be altered. RCW 58.17.215 authorizes the alteration of a subdivision or any portion thereof upon application by any person to the local government where the subdivision is located. The application must contain the signatures of a majority of those persons having an ownership interest of lots, tracts, sites or divisions in the subdivision or portion thereof to be altered; provided that the application must contain 100% of such signatures if the proposed alteration would result in the violation of a restrictive covenant. The applicant submitted a petition containing the signatures of 100% of the owners of lots in the plat. 2. The public use and interest will not be served by approval of the proposed plat alteration at the current time. RCW 58.17.215 requires that the public use and interest be determined in approving or denying an application to alter a final plat. In 1986, the Spokane County Zoning Code was adopted by Spokane County. The Aquifer Sensitive Area (ASA) Overlay Zone contained in the Zoning Code requires that all residential development within the Priority Sewer Service Area connect to public sewer. If public sewer is not available, such development must make provision for dry line sewers, double -plumbing and execution of a Utility Local Improvement District (ULID) waiver for public sewer. Zoning Code 14.706.100 (1). In 1993, the Spokane County Board of County Commissioners approved the preliminary plat of Armstrong Estates, authorizing 15 of the 30 lots in the plat to be developed with on -site sewage systems but restricting the issuance of building permits on the remaining 15 lots until the site was connected to public sewer. Commissioners' Document Nos. 93-0491 and 94-1163. This decision was based on concerns over potential groundwater contamination from on -site sewage disposal, indications that private interests would likely extend public sewer to the site within 3-4 years, the proximity of connection to public sewer, and the desire to provide incentive for connection of all lots in the plat to public sewer. Commissioners' Document No. 93-0491, Findings of Fact Nos. 20-30. In 1994, the Washington State Board of Health eliminated a waiver that had been granted to Spokane County from minimum land area requirements applicable to properties served by on -site sewage disposal within the Priority Sewer Service Area. County Resolution No. 96-0585, 1996 Interim Update to Spokane County Comprehensive Wastewater Management Plan ("CWMP Update"), p. 2-5, 3-12. In January, 1995, revisions were made to chapter 246-272 of the Washington Administrative Code and the 1995 Spokane County Health District Rules and Regulations for On -site Sewage Systems for Spokane County ("Health District Regulations") were adopted. The revised regulations require more stringent treatment and disposal treatment HE Findings, Conclusions and Decision PE-1679A-92 Page 4 processes for on -site sewage disposal in certain highly porous soil conditions found in the Spokane Valley. CWMP Update, p. 3-12; chapter 246-272 WAC; Health District Regulations. On June 11, 1996, pursuant to County Resolution No. 96-0585, Spokane County adopted the CWMP Update as the County's sewerage general plan required under chapter 36.94 RCW, and as an element of the County's Generalized Comprehensive Land Use Plan. The CWMP Update adopted new policies for development in the PSSA, based on concerns that the County's plans for sewering the PSSA were overly optimistic and should be revised. CWMP, p. 2-4. The CWMP Update promotes sewer construction or sewer financing by Spokane County only in those areas of the PSSA which are served by on -site sewage disposal and most urbanized (i.e. the "goldenrod" and "blue" areas shown on the Capital Improvement Program Spokane Valley, Exhibit 4-1, CWMP Update). In the remaining area of the PSSA (the "white area" shown on Exhibit 4-1, CWMP Update), the CWMP Update recommends that the County not initiate sewer construction, but indicates that any unused capacity in the regional treatment plant may be allocated to projects in such area. CWMP Update, p. 2-8. The current proposal is located in the indicated "white" area. CWMP Update, Exhibit 4-1. The CWMP Update recognizes that the County is in the process of planning under the Growth Management Act (GMA), and establishing urban growth area boundaries under chapter 36.70A RCW. CWMP Update, p. 2-10. The CWMP Update recommends that the PSSA boundary be recognized as the limit for centralized wastewater facilities by Spokane County, and that any adjustments to the PSSA should be coordinated with the GMA planning efforts. CWMP Update, p. 2-10. The CWMP Update further recommends preserving the existing PSSA boundary and the on -going land use, sewer requirements and on -site provisions tied to activities inside or outside the PSSA. CWMP Update, p. 2-8, 3-13 and 3-14. The CWMP Update recommends, and the ASA Overlay Zone requires that new development projects within the PSSA connect to the County's general sewerage system if such system is considered available to the site by Spokane County. CWMP Update, p. 3-13. The Spokane County Health District, to protect public health, may require new development in the unincorporated area of the county to connect to public sewer if it determines that a connection is feasible and such connection is permitted by Spokane County, even when the distance between the site and an adequate public sewer exceeds 200 feet. Health District Regulations, 1.04.090 (2)(3) The CWMP Update, the 1995 Health District Regulations and chapter 246-272 WAC are applicable to the Armstrong Estates plat alteration application since they were adopted before such application was deemed complete by Spokane County on July 18, 1996. In its interoffice memo dated September 3, 1996 to the County Division of Building and Planning, the Health District notes the change in on -site sewage regulations since the final plat of Armstrong Estates was approved in 1994. The memo states that due to the presence of coarse soils on the Armstrong Estates site, a minimum density of one-half (1/2) acre per lot may be required for on -site sewage disposal in the plat. The memo further provides that "...alternative systems of sewage disposal may be required and density increased after testholes are dug.". These conclusions and recommended conditions of approval were reiterated by Health District staff at the September 11, 1996 public hearing. HE Findings, Conclusions and Decision PE-1679A-92 Page 5 Under the Health District Regulations, soils classified as Type lA or 1B typically require a minimum lot size of .5 acres per single family residence unit and use of alternative on -site sewage treatment disposal systems. Soils classified as Type 2A or 2B by the Health District require a minimum lot size per single family residence of 12,500 square feet, and may require alternative treatment. See Health District Regulations, 1.04.170/Table II and 1.04.195/Table IV and 1.04.200 (2)(g)/Table G. Soil Types 3-6 require progressively greater minimum lot sizes per single family residence. Minimum land area requirements for on -site sewage disposal in various soil conditions may also be determined under the method outlined in Health District Regulations 1.04.170 (2)(d)(2). Under either method, the minimum lot area per single family residence for on -site sewage disposal under any soil conditions is 12,500 square feet. Health District Regulations 1.04.170. The lots in the final plat covered by the plat alteration application vary in size from 10,254 square feet (Lot 10, Block 2) to 11,873 square feet (Lot 18, Block 2), all smaller than the 12,500 square foot minimum lot area for the most optimal soil type or conditions that might exist on such lots for on -site sewage disposal. Even after test holes results are known on each lot, it would appear that all the lots covered by the plat alteration would be too small to comply with Health District regulations and would have to be modified. The final plat is already conditioned by County Utilities and the Health District for the installation of dry lines, double -plumbing and execution of a ULID waiver. Testimony at the public hearing indicates that the owner of property lying immediately south of Armstrong Estates, fronting on Sprague Avenue and bordering the Carnine Street right-of-way on the west, is negotiating with County Utilities to extend public sewer from the interceptor to such property. Such developer (Buster Heitman) owns additional land along the north side of Sprague Avenue between Carnine Street and Conklin Road, and also owns land south of Sprague Avenue in the area. Testimony at the public heating indicated that Heitman's plans are somewhat uncertain, but that Heitman could serve his property located directly south of Armstrong Estates by either (1) extending public sewer along the north side of Sprague Avenue to Conklin Road, then south across Sprague Avenue to the County sewer interceptor, at a total distance of 1300 feet, or (2) by extending a public sewer line directly across Sprague from the site north to the interceptor. The testimony indicated that extension of public sewer along the north side of Sprague Avenue would most likely occur in the spring of 1997, when the County plans to make significant improvements to Sprague Avenue in the area. If Mr. Heitman extends public sewer by either option, the applicants could connect the site to public sewer through the dry line the applicants have offered to install in Carnine Street to Sprague Avenue. The applicants submitted testimony that it would cost them $150,000 to extend public sewer from the final plat all the way to the interceptor via Conklin Avenue, which they claimed would make housing unaffordable in Armstrong Estates. Testimony for the applicants also indicated that the applicants do not have the necessary easements to extend sewer between the interceptor and Sprague Avenue. The record indicates that the applicants are ambivalent about extending a sewer line west in Main Avenue to Conklin Road, and south in Conklin Road to Sprague Avenue, if Heitman were to only extend sewer from the interceptor across Sprague Avenue north to Conklin Road. This was due to the anticipated expense of tearing up and HE Findings, Conclusions and Decision PE-1679A-92 Page 6 repaving Conklin Road and Main Avenue to install a sewer line. County Utilities requested that the plat alteration application be denied, based on (1) the potential for a sewer connection agreement with Mr. Heitman that would facilitate connection of Armstrong Estates to public sewer, (2) uncertainty that the proposed dry line sewer extension in Carnine Street would make public sewer available to the site, due to the uncertainty of Mr. Heitman's plans, and (3) the absence of any plans by the County to extend public sewer to the site in the foreseeable future. The applicant requested that the plat alteration be granted, conditioned on compliance with Health District regulations regarding on - site sewage disposal and the extension of a dry line sewer in Carnine Street. A number of residents in Armstrong Estates testified in favor of the application due to the unfinished nature of the roads and other improvements in the plat. Neighboring property owners testified in opposition to the application, based on alleged land use conflicts and impacts to the Spokane Aquifer from on -site sewage disposal. With the exception of the concerns expressed over on -site sewage disposal, the land use issues raised by neighboring property owners in opposition to the proposal are not meritorious. Similar issues were raised during consideration of the Armstrong Estates preliminary plat by the Board of County Commissioners but were not relied on in the Board's decision. On the other hand, the Hearing Examiner does not find the unfinished nature of the plat compelling enough to overlook still unresolved sanitary waste disposal issues. While the Hearing Examiner is sympathetic to the applicants' proposal for plat alteration, there are a number of uncertainties involved with the current application that make it difficult to approve the application at the current time. Until test holes are dug on each lot, it is unknown whether half acre lots or minimum lot sizes of 12,500 square feet will be required, and whether alternative treatment will be required. The fact that septic tanks permits have been issued on 15 lots in the final plat is irrelevant, since these were allowed under Health District regulations that have been superseded by more stringent regulations. There is some uncertainty regarding the value of the dry line sewer proposed by the applicants in facilitating connection of the site to the County's general sewerage system. Issues such as these are normally dealt with before final plat approval, not after. The Hearing Examiner agrees with the applicants that it is unreasonable to require them to construct a public sewer line from the site all the way to the sewer interceptor, if the current Health District regulations for on -site sewage disposal are complied with. However, given the proximity of the interceptor to the site and Mr. Heitman's development plans in the area, the installation of a dry line sewer in the Carnine Street right-of-way, or similar sewer extension by the applicants that facilitates connection of the site to public sewer, would appear to be a reasonable requirement in conjunction with compliance with Health District on -site sewage regulations. Once test holes are dug on each lot included in the current application and the manner of compliance with Health District regulations is established, the Hearing Examiner would be willing to consider a new plat alteration application at the earliest possible opportunity with the above contingencies in mind. The application would need to be processed as a new application, if on -site sewage disposal is contemplated for the affected lots. HE Findings, Conclusions and Decision PE-1679A-92 Page 7 III. DECISION Based on the Findings of Fact and Conclusions above, the above plat alteration application is hereby denied without prejudice. DATED this 15th day of November, 1996. SPOKANE COUNTY H H ARING EXAMINER /4ij c Michael C. Dempsey, WS gA'tr8 5 NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Spokane County Resolution No. 96-0171, the decision of the Hearing Examiner on an application for a plat alteration is final and conclusive unless within twenty-one (21) calendar days from the issuance of the Examiner's decision, a party with standing files a land use petition in superior court pursuant to chapter 36.70C RCW. Pursuant to chapter 36.70C RCW, the date of issuance of the Hearing Examiner's decision is three days after it is mailed. This Decision was mailed by Certified Mail to the Applicant on November 15, 1996. The date of issuance of the Hearing Examiner's decision is therefore November 18, 1996. THE LAST DAY FOR APPEAL OF THIS DECISION TO SUPERIOR COURT BY LAND USE PEI111ON IS DECEMBER 9, 1996. The complete record in this matter, including this decision, is on file during the appeal period with the Office of the Hearing Examiner, Third Floor, Public Works Building, 1026 West Broadway Avenue, Spokane, Washington, 99260-0245. 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. Copies of the documents in the record will be made available at the cost set by Spokane County ordinance. HE Findings, Conclusions and Decision PE-1679A-92 Page 8