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SPONANC COUNTY COUNT HOUSC
OFFICE OF. THE
PLANNING DEPARTMENT
DATE
July .22 , 39 /6
��
To: Thomas G. Mosher, Zoning Adjustor
FROM: Patrick C. Frankovic. Acti g Zoning Administrator
SUBJECT: Setbacks for Storage Areas in the Manufacturing Zone.
QUESTION:
You have asked a question, relative to File WVE-6-86 Postlewait Construction, that I
will paraphrase as follows:
Which section(s) of the Spokane County Zoning Ordinance require(s)
that sto-age areas, in the Manufacturing Zone, adhere to the setback
regulations as was stated to Mr. Postlewait in letters dated
January 20, 1986 and August 9, 1985, relative to File ZE-121-80?
RESPONSE:
The Manufacturing Zone does require that storage of material, especially when conducted
as a primary use on a parcel, maintain the use setbacks of that zone. However, the
reasoning through the various sections of the Spokane County Zoning Ordinance to reach
that conclusion is a bit complex.
JUSTIFICATION:
In Section 4.12.010 of the Manufacturing Zone it states that one or more uses in a
building or on a premises must comply with standards of the Manufacturing Zone. The
type of uses allowed are refined in Section 4.12.030 Uses Permitted - General. It
states, in part, that permitted uses include:
"Any trade, industry, processing activity, agricultural activity,
commercial activity or other use with frontage on a public street
and in accordance with the standards and requirements established in
this Title." (emphasis added)
Further research, into Section 4.12.150, indicates that storage of material is not a
prohibited use. Some storage activities are a Conditional Use in the Manufacturing
Zone as stated in Section 4.12.180 Conditional Uses. These uses would include
storage of liquids and gases, auto wrecking and junk yards, sanitary landfills, and
garbage dumps. Clearly from the above -cited sections, storage of material on a
premises, with only a few specific exceptions, would qualify as an industrial activity
or other use and be allowed in the Manufacturing Zone subject to the standards of that
zone.
n NA
Thomas G. Mosher - 2 - July 18, 1986
One set of standards that uses are required to comply with are the setbacks contained
in Section 4,12.040 Front, Side and Rear Yards. The preface to the dimensional
yard requirements contained in Subsections 1, 2, 3, and 4 simply states:
"The following front, side and rear yard requirements shall apply in
the Manufacturing Zone:"
The verbage above doesn't specify or limit the need for yard setbacks to a building;
it implies that these are setback standards for the Manufacturing Zone. Since
previously cited sections authorize various uses, including certain storage uses,
subject to the Manufacturing Zone standards, then it is reasonable to assume that
setback standards apply to both buildings and uses (those activities not involving
buildings) on a premises. Further support oT this position is that all other conven-
tional zones (Agricultural, Agricultural Suburban, Single Family Residential, Two -
Family Residential, Residential Manufactured Home, Multiple Family Suburban,
Residential Office, Transient Living, Freeway Commercial, Local Business, Commercial,
Restricted Industrial, and Unclassified) specifically state that setback standards
are related to certain types of structures or building only. Verification of this
fact can be found in the preface section of the dimensional yard requirements for each
respective zone classification.
The Manufacturing Zone does contain a provision in Section 4.12.140 Uses Permitted --
Storage that requires all material stored on property to "... be fenced or otherwise
protected in such a manner as not to create a nuisance or endanger or damage adjacent
property." While setbacks are not referenced in this section, it's a commonly
accepted principle that spatial separation of uses (as would be caused by setbacks)
does offer a degree of protection to adjacent properties. Therefore, with or without
a fence, a storage area maintaining required setbacks will provide a certain amount of
protection to adjacent property; property that may be privately owned or publicly
owned as in the case of roads and alleys.
A final piece of support to this position can be found within the Commercial and
Restricted Industrial Zones. Both contain a section relative to storage provisions
which is very similar to that found in the Manufacturing Zone with one exception.
The Commercial Zone (Section 4.10.110) and Restricted Industrial Zone (Section 4.11.120)
specifically require storage areas to maintain setbacks because, as pointed out
previously, the respective setback sections of those zones were drafted to apply to
structures and buildings only. In the storage provisions of the Manufacturing Zone
(Section 4.12.140) there was no need for the additional setback verbage since, as
pointed out above, all buildings and uses are required to meet setbacks.
SUMMARY:
In summary, storage areas in the Manufacturing Zone are a use of a premises, that, at
a minimum, requires compliance with the setback standards as outlined in Section
4.12.040. Fencing of a storage area, as may be installed for additional protection
per Section 4.12.140, must also maintain the above -referenced setback standards.
-,,) '0111 11V' X4,4121-4(7/"--
Hopefully this answers your concerns.
PATRICK C. FRANKOVIC
Acting Zoning Administrator
PCF:SPH:cmw
���: STEVE P. HOROBIOWSKI
r Zoning Administrator
NOTICE OF PUBLIC HEARING
BEFORE THE BOARD OF ADJUSTMENT FOR
SPOKANE COUNTY, WASHINGTON
APPEAL HEARING
IN THE MATTER OF: )
APPLICANT: Postlewait Construction, )
Inc. )
E. 11508 Montgomery Ave. )
Spokane, WA 99203 )
CONTACT: John Konen )
E. 4124 24th Ave. )
Spokane, WA 99203 )
)
APPELLANT: Same )
FILE NO: WVE-6-86 )
LOCATION: )
The approximately 28,125 sq. ft. site is )
located north of and adjacent to Cataldo )
Ave. between Yardley and Stanley Streets )
in the Spokane Valley. The Assessors )
Parcel numbers are 14531-1703,-1704 and )
-1705. )
ZONING: Manufacturing )
ZONING ORDINANCE PROVISION: )
4.12.040 (4) and 4.12.140;)
Determinations relative to these sections)
as set forth by the Planning Department )
on at least three seperate occassions; a )
Superior Court Order to comply with the )
Zoning Ordinance; and a Board of )
Adjustment decision regarding an )
interpretation, file number AI-29-86. )
)
REQUEST: )
Appeal of the Zoning Adjustor's decision )
to deny the application for a Waiver of )
Violation to allow fenced storage in the )
front and rear -yards where storage is the)
primary use of the property. )
HEARING DATE:
November 19, 1986 9:00a.m.
N. 721 Jefferson St., 2nd floor
hearing room, Broadway Centre
Bldg., Spokane, WA., 99260
Any interested person may appear
before the Board of Adjustment.
Additional information can be
obtained by contacting the
Spokane County Planning Dept.
at 456-2205.
A copy of the Zoning Adjustor's
report to the Board of Adjust-
ment and the original decision
of September 25, 1986 are
available at the above address.
CASE BEFORE THE BOARD
Over the period of approximately two years, the applicant has attempted to
establish an outdoor storage yard, as a primary use, for construction
equipment at the above location. Attempts have been made to fully utilize the
required front and rear -yard setback areas for such storage.
Beginning as early as July 1985 the applicant was advised by the Planning
Department that fenced storage in the required front and rear -yards was not
allowed by the Spokane County Zoning Ordinance. Numerous correspondence from
the Planning Department to the applicant stipulated requirements and suggested
possible alternatives in the form of front and rear -yard setback variances.
None of these Planning Department determinations were appealed to the Board of
Adjustment. The continuing issue of illegal storage was taken to court and
the applicant was directed by the court to bring his property into compliance
with the Zoning Ordinance. Regardless of such directives from the Planning
Department and the court, fences were built and storage continued to be
maintained within required setback areas. The court eventually directed the
applicant to attempt to seek Waivers of Violation for his established
violations; fencing and storage within the required front and rear -yard
setback areas.
The applicant applied for the Waiver of Violations as directed by the court.
During the course of the public hearing on this matter, the Zoning Adjustor
suspended proceedings to allow the applicant additional opportunity to
challenge the Planning Department's declared position that fenced storage
areas, when conducted as a primary use, must maintain zoning setbacks. The
applicant did challenge that determination to the Board of Adjustment (file
AI-29-86). However, the Planning Department's determination was upheld by the
Board of Adjustment.
Subsequent to that decision, the Zoning Adjustor entered a decision to deny
the Waivers of Violation. It is this final denial of the Waivers of Violation
from which the applicant seeks relief through the present appeal process.
The applicant filed an appeal of the Zoning Adjustor's decision to deny the
Waiver ofViolation in a timely fashion. The reasons for an appeal were stated
as follows.
a) The fences in question conform to the characteristics of the surrounding
area and the denial of the Variance denies the property owner rights
commonly enjoyed by other property owners in the same zone and vicinity.
(EDITOR'S NOTE: The application is not for a Variance but for a Waiver of
Violation.)
b) The action condemns 40% of the property without compensation, therefore
the action is confiscatory and contrary to the enabling legislation
promigated by the State of Washington.
"0
BEFORE THE BOARD OF ADJUSTMENT OF
SPOKANE COUNTY, WASHINGTON
IN THE MAT"1'hR OF REVIEWING THE
ACTION OF THE SPOKANE COUNTY
ZONING ADJUSTOR IN A DECISION
DENYING WAIVER OF VIOLATION
POSTLEWAIT CONSTRUCTION, INC.;
WVE-6-86.
FINDINGS & ORDER
TFIIS MA HER, ER, Being the consideration by the Board of Adjustment for Spokane County, is
an appeal of an action by the Spokane County Zoning Adjustor denying a Waiver of Violation
(WVE-6-86), which was for the purpose of allowing storage, as a primary use, and a fence
enclosure to continue to exist within the required 35 foot front yard and 15 foot rear yard
setbacks, hereinafter referred to as the "Proposal" and the Board of Adjustment of Spokane
County having held a public hearing on November 19, 1986, and having fully considered all
testimony presented thereat, and having rendered a decision on the 19th day of November, 1986,
DENYING said appeal and, therefore, UPHOLDING the Zoning Adjustor's denial of the
Waiver of Violation, with a changed condition, does hereby make the following:
FINDINGS OF FACT
1. That the proposal is generally located on the north side of Cataldo Avenue between Stanley
and Yardley Streets in an area east of the City of Spokane and is further described as Assessor's
Parcel #14531-1703, -1704, and -1705.
2. That the proposal consists of a request for a Waiver of Violation, per Section 4.25.030 (f)
of the Zoning Ordinance of Spokane County, to allow storage areas, as a primary use, and a
fence enclosure to continue to exist within the required 35 foot front yard and 15 foot rear yard
setbacks. The storage areas and fence enclosure were illegally located and constructed contrary
to standards of the Zoning Ordinance of Spokane County (Manufacturing Zone) and
Administrative Determinations made by the Spokane County Planning Department.
3. That the Spokane County Zoning Adjustor held public hearings on July 9, 1986, July 23,
1986, and August 26, 1986, conceming the proposal, and that on September 25, 1986 the
Spokane County Zoning Adjustor, by Conclusions of Law and Finding of Fact, did render two
seperate decisions denying the proposal. Decision #1 dealt with storage in the required 15 foot
rear yard and a 6 foot fence constructed on the rear property line. Decision #2 was in regards to a
6 foot fence constructed 5 feet from the front property line and storage occuring within all but 5
feet of the required 35 foot front yard setback.
4. That on October 6, 1986, an appeal from the decisions of the Zoning Adjustor of Spokane
County was filed by John D. Konen, agent for the applicant, Levi Postlewait.
5. That the proper legal requirements for advertising of the hearing before the Board of
Adjustment of Spokane County have been met.
6. That the Board of Adjustment conducted a public hearing on November 19, 1986
concerning the applicant's appeal. The Board considered the detailed decisions rendered by the
Zoning Adjustor as well as additional testimony on behalf of the applicant. Much of the
testimony presented to the Board was previously addressed by the Zoning Adjustor in his
findings.
7. That the Board considered the two appeal reasons presented by the applicant. They were
stated by the applicant as follows:
1. The fences in question conform to the character of the
surrounding area and the denial of the variance denies the
property owner rights commonly enjoyed by other property
owners in the same zone and vicinity.
2. The action condemns 40% of the property without compensation.
The action is confiscatory and contrary to enabling legislation
promulgated by the State of Washington.
In regards to reason #1 the Board notes that the requested action is not for a Variance, but
rather for a Waiver of Violation. As such, the criteria for review and decision on a Waiver of
Violation is different than the criteria for a Variance as suggested by the applicant in reason #1.
BOARD OF ADJUSTMENT, FINDINGS AND ORDER
WVE-6-86; Postlewait Construction
Page # 2
In granting a Waiver of Violation the Board must find that: a). the project was xvcted in good
faith with every intent to comply with the provisions of the Zoning Ordinance; and b). the project
does not violate the spirit and intent of the Zoning Ordinance. In adopting the Zoning Adjustor's
findings as the Board's own, the Board fords negatively in regards to those two criteria.
Concerning the question of "taking" raised in reason #2, the Board requested a legal opinion
from Mr. Rob Binger, legal counsel to the Board. Basically, if an ordinance is legally valid in
regards to it's power and standards, and provided that the Ordiance allows for some legal use of
property, then there is no issue of a government "taking" without compensation. Legal counsel
is of the opinion that denial of the requested Waiver of Violation, and therefore required
compliance with the Zoning Ordinance provisions, is not a "taking" issue. Requirements that
storage areas be fenced and that the fence enclosure maintain required yard setbacks is consistent
with the Zoning Ordinance's power to protect the public's health, safety and welfare. Use of the
site has not been denied since the Zoning Ordinance would continue to allow any number of
uses, including storage as a primary use, provided ordinance standards are met.
8. That the Board concurs with the Zoning Adjustor's two sets of Findings of Fact,
Conclusions, and Decisions, dated September 25, 1986, and the Board adopts those as it's own.
However, given the current winter season, coupled with anticipated time necessary to remove
and reconstruct the fences in compliance with ordinance standards, the sixty (60) day compliance
time frame, required by the Zoning Adjustor, is not reasonable. Therefore, the Board would
allow a more reasonable and generous compliance time schedule.
DECISION
From the foregoing Findings, the Board of Adjustment of Spokane County hereby in DENYIN(
the proposal, and thereby UPHOLDING the Zoning Adjustor's decision, does make the following
conditions:
1. Notwithstanding any directives from a Court to do otherwise, the applicant is directed to bring
the front and the rear of the property in question into compliance with the Zoning Ordinance, as
consistent with the January 20, 1986 letter and the July 22, 1986 interpretation, both from the
Planning Department, within one hundred eighty (180) days of the signing of this order.
BOARD VOTE: 5-0
DATED THIS / 7 DAY OF DECEMBER, 1986.
SP I • • COUNTY BOARD OF ADJUSTMENT
NE COU r Y, A f INGTON
FILED:
1) Applicant
2) John Konen, Consultant
3) Spokane County Dept. of Building and Safety
4) Ron Arkills, Prosecuting Attorneys Office, Civil Division
5) Gary Koeppel, Zoning Coordinator, Planning Department
6) Zone Change File No. ZE-121-80