ZE-34-00SPOKANE COUNTY HEARING EXAMINER
RE: Zone Reclassification from the Urban
Residential-3.5 (UR-3.5) Zone to the
Urban Residential-22 (UR-22) Zone;
Applicant: Vemon Eden
File No. ZE-34-00
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND DECISION
I. SUMMARY OF PROPOSAL AND DECISION
Proposal: Application for a rezone from the Urban Residential-3.5 (UR-3.5) zone to the
Urban Residential-22 (UR-22) zone, on approximately 1.75 acres of land, for those uses allowed
in the UR-22 zone.
Decision: Approved, subject to conditions.
The Hearing Examiner has reviewed the zone reclassification application and the evidence
of record, and hereby adopts the following findings of fact, conclusions of law and decision:
II. BACKGROUND/FINDINGS OF FACT
A. General Information:
Applicant/Owner: Vemon L. Eden, 10408 South Madison Road, Valleyford, WA 99036
Location: Generally located north of Valley Way, east of Sullivan Road, in the SW ''A of
Section 13, Township 25 North, Range 44 EWM, Spokane County, Washington.
Parcel Number: County Assessor's tax parcel nos. 45133.0524, .0540
Zoning: Urban Residential-3.5 (IJR-3.5) zone. The site is also located in the Aquifer
Sensitive Area and the Public Transit Benefit Area designated by the County Zoning Code.
Comprehensive Plan: The site is located within the Urban category designated by the
County Comprehensive Plan, except for the westerly 40 feet or so, which are designated in the
Major Commercial category. The property is also located within the Aquifer Sensitive Area,
Priority Sewer Service Area and Urban Impact Area designated by the Comprehensive Plan.
IUGA: The site is located inside the interim urban growth area boundaries designated by
the County pursuant to the State Growth Management Act.
Environmental Review: A Determination of Nonsignificance (DNS) was issued on March
2, 2001.
HE Findings, Conclusions and Decision
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Site Description: The project site is 1.75 acres in area and is relatively level. The site is
currently improved with two single-family dwellings, and associated garages and fencing. Some
evergreen trees are found on the site. The eastern quarter of the property is used as a horse
pasture.
Surrounding conditions: Valley Way Avenue in the vicinity is designated as a Collector
Arterial by the County Arterial Road Plan. Sullivan Road, Broadway Road and Sprague Avenue
in the area are all designated as Principal Arterials. The Interstate 90 freeway (I-90)/Sullivan
Road freeway interchange is located less than a mile north of the site.
The Major Commercial category of the Comprehensive Plan extends along Sullivan Road and
Sprague Avenue, and along Broadway Sprague Avenue, east of Conklin Road, in the area. The
land bordering Sullivan Road, the land lying between Broadway Avenue and I-90, and the land
lying between the site and Sprague Avenue in the area is zoned either Regional Business (B-3) or
Community Business (B-2), and is developed for intensive commercial uses.
A number of recent land use actions have occurred in the vicinity, allowing for more intensive
commercial or residential development and zoning, as discussed on page 2 of the Staff Report.
The Hearing Examiner recently approved a rezone of land located northeast of the site, lying
along the south side of Broadway, east of Moore Road, to the Urban Residential-22 (UR-22)
zone for the development of offices. See decision in File No. ZE-13-00. The Hearing Examiner
recently approved a rezone to the UR-22 zone, for the development of 125 multi -family dwelling
units, 8 acres of land lying approximately 800 feet west of the site, along the south side of
Valleyway Avenue. See decision in File No. ZE-20-00.
Proposal: The application seeks a rezone to the UR-22 zone, for those uses allowed in the
zone. The site plan of record dated illustrates removal of the existing structures on the site, but no
development. An earlier application submitted by the applicant to rezone the site to the B-2 zone
was withdrawn, after the Hearing Examiner advised the applicant that the rezone would not be
approved unless the applicant was able to secure frontage to a Minor Arterial or greater, such as
Sullivan Road.
B. Procedural Information:
Applicable Zoning Regulations: Spokane County Zoning Code Chapters 14.402 and 14.622
Hearing Date and Location: March 21, 2001, Spokane County Public Works Building,
Lower Level, Commissioners Assembly Room, 1026 West Broadway, Spokane, WA.
Notices: Mailed: February 27, 2001, by applicant
Posted: February 27, 2001, by applicant
Published: March 2, 2001, by County
Compliance: The legal requirements for public notice have been met.
Hearing Procedure: Pursuant to County Resolution Nos. 96-0171 and 96-0294
Site Visit: March 20, 2001
HE Findings, Conclusions and Decision
ZE-34-00 Page 2
Testimony:
Jim Falk
Division of Planning
1026 West Broadway
Spokane, WA 99260-0240
Items Noticed: Spokane County Generalized Comprehensive Plan, County Zoning Code,
County Code, County Standards for Road and Sewer Construction, County Guidelines for
Stormwater Management, County official zoning maps, and County Arterial Road Plan maps.
County Resolution Nos. 99-0261 (revising Road Standards), 97-0874 (revising interim
regulations for County IUGAs), 96-0585 (adopting 1996 Update to CWMP), 96-0294 (Hearing
Examiner Rules of Procedure), 96-0171 (Hearing Examiner Ordinance), and 85-0900 (adopting
Zoning Code, and Program to Implement Zoning Code). Final land use decisions referenced in
Staff Report and in this decision.
III. LAND USE ANALYSIS
FINDINGS OF FACT & CONCLUSIONS OF LAW
A. Approval criteria
The County Hearing Examiner Ordinance authorizes the Hearing Examiner to grant, deny
or grant with such conditions, modifications and restrictions as the Examiner finds necessary to
make a land use application compatible with the Spokane County Generalized Comprehensive
Plan and development regulations. See County Resolution No. 96-0171, Attachment "A",
paragraphs 7 (d) and section 11. Development regulations include, without limitation, the
County Zoning Code, the State Environmental Policy Act (SEPA) and the County's Local
Environmental Ordinance (chapter 11.10 of Spokane County Code).
In considering a rezone application, Washington case law generally provides that 1) there is
no presumption in favor of the rezone, 2) the applicant for the rezone must prove that conditions
have substantially changed in the area since the last zoning of the property, and 3) the rezone
proposal must bear a substantial relationship to the public health, safety or welfare. Parkridge v.
Seattle, 98 Wn.2d 454, 462, 573 P.2d 359 (1978); and Bjarnson v. Kitsap County, 78 Wn. App.
840, 899 P.2d 1290 (1995).
Some Washington cases have dispensed with the changed circumstances requirement where
the rezone specifically implemented the policies of the comprehensive plan. Bjarnson v. Kitsap
County, supra; Save Our Rural Environment v. Snohomish County, 99 Wn.2d 363, 370-371
(1983); and Tugwell v. Kittitas County, 90 Wn. App. 1, 8, 951 P.2d 272 (1999).
A comprehensive plan is considered as a general blueprint for land use regulation. Only
general conformance with a comprehensive plan is required for approval of a rezone proposal.
Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 873 (1997); and Cathcart v.
Snohomish County, 96 Wn.2d 201, 211-12 (1981).
HE Findings, Conclusions and Decision
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Page 3
Where the policies of a comprehensive plan conflict with zoning regulations, the provisions
of the zoning code will usually be construed to prevail. See Weyerhaeuser v. Pierce County, 124
Wn.2d 26, 43 (1994); Cougar Mt. Assocs. v. King County, 111 Wn.2d 742, 755-57 (1988); and
Nagatani Bros. v. Commissioners, 108 Wn.2d 477, 480 (1987).
Section 14.402.020 of the County Zoning Code authorizes amendments to the Code based
on any one of six (6) grounds, without differentiating between amendments to the text of the
Zoning Code and amendments to the official zoning map. Zoning Code 14.402.020(1)
authorizes the Code to be amended if the change is "... consistent with the Comprehensive Plan
and is not detrimental to the public welfare...". Zoning Code 14.402.020(2) authorizes a Code
amendment where "[c]hanges in economic, technological, or land use conditions has occurred to
warrant modification of this Code...". These are the most relevant criteria for consideration of a
site -specific rezone application.
Section 14.100.104 of the County Zoning Code states that the provisions of the Code shall
be interpreted to carry out and implement the purpose and intent of the Comprehensive Plan, and
the general plans for physical development of the county adopted by the Board of County
Commissioners. Zoning Code 14.100.106 indicates that when the provisions of the Zoning Code
conflict with the Comprehensive Plan, or other adopted plans and development regulations, the
more restrictive provisions shall govern to the extent legally permissible and the Zoning Code
provisions will be met as a minimum.
The Comprehensive Plan indicates that the decision guidelines stated in the various
sections of the Plan should be used as a resource and guide for approving specific land uses.
B. The proposed rezone, as conditioned, generally conforms with the Spokane County
Generalized Comprehensive Plan; bears a substantial relationship to and will not be detrimental
to the public health, safety and general welfare• and complies with the Spokane County Zoning
Code and other applicable development regulations.
The Staff Report contains a sufficient analysis of the consistency of the project with the
relevant policies of the Comprehensive Plan, and the UR-22 zone, which analysis the Examiner
adopts and incorporates by reference as findings and conclusions herein.
No deficiencies with regard to the ability of the project to comply with development
regulations have been established in the record. There was no opposition to the proposal The
project has been conditioned for compliance with the development standards of the UR-22 zone
and other applicable provisions of the County Zoning Code, and the recommendations of the
commenting public agencies. As conditioned, the project will be reasonably compatible with,
and not have a significant negative impact on, neighboring land uses. The project, as
conditioned, generally conforms to the Comprehensive Plan.
No public agencies objected to the Determination ofNonsignificance (DNS) issued for the
proposal by the County Division of Planning. The proposal will not have more than a moderate
effect on the quality of the environment, and the Examiner concurs with issuance of the DNS.
The procedural requirements of chapter 43.21 C RCW and chapter 11.10 of the Spokane County
Code have been met.
HE Findings, Conclusions and Decision
ZE-34-00 Page 4
3. Conditions in the area have substantially changed since the site was last zoned to justify the
proposed rezone, as conditioned.
In applying the changed circumstances test, courts have looked at a variety of factors,
including changed public opinion, changes in land use patterns in the area of the rezone proposal,
and changes on the property itself. The Zoning Code references changes in "economic,
technological or land use conditions" as factors that will support a rezone. Spokane County
Zoning Code Section 14.402.020 (2). Washington courts have not required a "strong" showing
of change. The rule is flexible, and each case is to be judged on its own facts. Bassani v. County
Commissioners, 70 Wn. App. 389, 394 (1993).
As stated previously, recent Washington cases have held that changed circumstances are
not required if the proposed rezone implements policies of a comprehensive plan. The Examiner
concluded above that the property implements the policies of the Comprehensive Plan.
Changed conditions have occurred since the zoning of the site was re -designated to the
UR-3.5 zone on January 1, 1991, pursuant to the Program to Implement the Spokane County
Zoning Code. This includes the availability of public sewer to the subject property, road
improvements to Sullivan Road and Sprague Avenue in the area, the rezoning and development
of land along Sprague Avenue, Sullivan Road and Broadway Avenue in the area for intensive
commercial development, increased population growth in the area, and designation of the site
within the County's IUGA boundaries.
IV. DECISION
Based on the above Findings of Fact and Conclusions of Law, the application for a rezone
to the Urban Residential-22 (UR-22) zone is hereby approved, subject to the conditions of
approval of public agencies stated below.
Any conditions of such agencies that have been added or significantly revised by the
Hearing Examiner are italicized.
Failure to comply with the conditions of this approval may result in revocation 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.
SPOKANE COUNTY DIVISION OF PLANNING
1. All conditions imposed by the Hearing Examiner shall be binding on the "Applicant,"
which term shall include the owners, developers and users of the property, and their heirs,
assigns and successors.
2. The zone change applies only to the parcel legally described in the County Division of
Planning project application file designated ZE-34-00, referenced currently as County Assessor's
tax parcel nos. 45133.0524 and 45133.0540.
HE Findings, Conclusions and Decision
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Page 5
3. A site development plan shall be submitted to the Division of Planning, prior to issuance of
a building permit.
4. Development of the site, and the applicant, shall comply with the Urban Residential-22
(UR-22) zone, and all applicable provisions of the Spokane County Zoning Code, as amended.
5. The County Division of Planning shall prepare and record with the County Auditor a Title
Notice, specifying a future land acquisition area for road right-of-way. The reserved future
acquisition area Title Notice shall be released, in full or in part, by the Division of Planning. The
Title Notice shall serve as public notice of the conditions of approval affecting the property in
question. The notice should be recorded within the same time frame as an appeal and shall
provide the following:
a. At least 12.5 feet of reserved future acquisition area for road right-of-way adjacent to
Valley Way.
b. Future building and other setbacks required by the Spokane County Zoning Code
shall be measured from the reserved future acquisition area.
c. No required landscaping, parking, ground water percolations areas, drainfield or
allowed signs should be located within the future acquisition area for road right-of-way and
utilities. If any of the above improvements are made within this area, they shall be
relocated at the applicant's expense when roadway improvements are made.
d. The future acquisition area, until acquired, shall be private property and may be used
as allowed in the zone, except that any improvements (such as landscaping, parking,
surface drainage, drainfield, signs or others) shall be considered interim uses.
e. The property owner shall be responsible for relocating such "interim" improvements
at the time Spokane County makes roadway improvements after acquiring said future
acquisition area.
6. The Division of Planning shall prepare and record with the Spokane County Auditor a Title
Notice, noting that the property in question is subject to a variety of special conditions imposed
as a result of approval of a land use action. This Title Notice shall serve as public notice of the
conditions of approval affecting the property in question. The Title Notice should be recorded
within the same time frame as allowed for an appeal and shall only be released, in full or in part,
by the Division of Planning. The Title Notice shall generally provide as follows:
"The parcel of property legally described as (insert legal description), is the subject of a land
use action by the Spokane County Hearing Examiner on May 7, 2001, imposing a variety of special
conditions for development. File No. ZE-34-00 is available for inspection and copying in the
Spokane County Division of Planning."
HE Findings, Conclusions and Decision
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7. The Division of Planning shall file with the Spokane County Auditor, within the same time
frame as allowed for an appeal from the final disposition, including lapsing of appeal period, a
Title Notice, which shall generally provide as follows:
"Prior to the issuance of any building permit for any building or any use on the property
described herein, the applicant shall be responsible for complying with the provisions of the
Zoning Code for Spokane County, Chapter 14.706 (Aquifer Sensitive Area Overlay Zone). The
property which is the subject of this notice is more particularly described as follows: (insert legal
description)."
DIVISION OF BUILDING AND CODE ENFORCEMENT
1. The applicant shall contact the Division of Building and Code Enforcement at the earliest
possible stage, in order to be informed of code requirements administered or enforced under the
State Building Code Act. Design/development concerns include addressing, fire apparatus
access roads, fire hydrant flow, approved water systems, building accessibility, construction type,
occupancy classification, existing exterior wall protection and energy code requirements.
SPOKANE COUNTY DIVISION OF ENGINEERING AND ROADS
Prior to issuance of a building permit, or at the request of the County Engineer in
conjunction with a County Road Project/Road Improvement District, whichever comes
first:
1. The applicant shall dedicate 2.5 feet on Valleyway Avenue for right of way.
Prior to release of a building permit or use of property as proposed:
2. Approach permits are required prior to any access to the Spokane County Road System.
3. The applicant shall submit for approval by the Spokane County Engineer road, drainage
and access plans
4. A parking plan and traffic circulation plan shall be submitted and approved by the Spokane
County Engineer. The design, location and arrangement of parking stalls shall be in accordance
with standard engineering practices. Paving or surfacing as approved by the County Engineer
will be required for any portion of the project which is to be occupied or traveled by vehicles.
5. The construction of the roadway improvements stated herein shall be accomplished as
approved by the Spokane County Engineer.
6. The County Engineer has designated a Collector Arterial Roadway Section for the
improvement of Valleyway Avenue, which is adjacent to the proposed development. This will
require the addition of approximately 8.5-10.5 feet of asphalt along the frontage of the
development. Curbing and sidewalk must also be constructed.
HE Findings, Conclusions and Decision
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Page 7
7. All required improvements shall conform to the current State of Washington Standard
Specifications for Road and Bridge construction and other applicable county standards and/or
adopted resolutions pertaining to Road Standards and Stormwater Management in effect at the
date of construction, unless otherwise approved by the County Engineer.
8. Roadway standards, typical roadway sections and drainage plan requirements are found in
Spokane County Resolution No. 99-0265 as amended and are applicable to this proposal.
9. No construction work is to be performed within the existing or proposed right of way until
a permit has been issued by the County Engineer. All work within the public road right of way is
subject to inspection and approval by the County Engineer.
10. All required construction within the existing or proposed public right of way is to be
completed prior to the release of a building permit or a bond in an amount estimated by the
County Engineer to cover the cost of construction or improvements shall be filed with the
County Engineer.
11. The County Arterial Road plan identifies Valleyway Avenue as a 70-foot Collector
Arterial. The existing right of way width of 20 feet, measured from the centerline, is not
consistent with that specified in the plan. In order to implement the Arterial Road Plan, in
addition to the required right of way dedication, a strip of property 12.5 feet in width along the
Valleyway Avenue frontage shall be set -aside in reserve. This property may be acquired by
Spokane County at the time when arterial improvements are made to Valleyway Avenue.
12. The applicant is advised that there may exist utilities either underground or overhead
affecting the applicant's property, including property to be dedicated or set aside future
acquisition. Spokane County will assume no financial obligation for adjustments or relocation
regarding these utilities. The applicant should check with the applicable utilities and Spokane
County Engineer to determine whether the applicant or utility is responsible for adjustment or
relocation costs and to make arrangements for any necessary work.
13. The applicant shall grant applicable border easements adjacent to Spokane County Right of
Way per Spokane County Standards.
14. This proposed zone change is not being requested for a specific development proposal or
site plan at this time. At such time as a site plan is submitted for review, the applicant shall
submit detailed traffic information for review by the County Engineer to determine what traffic
impacts, if any, that the development would have on surrounding infrastructure. The applicant is
advised that mitigation may be required for off -site improvements.
HE Findings, Conclusions and Decision
ZE-34-00. Page 8
SPOKANE REGIONAL HEALTH DISTRICT
1. The sewage disposal method shall be as authorized by the Director of Utilities, Spokane
County.
2. Water service shall be coordinated through the Director of Utilities, Spokane County.
3. Water service shall be by an existing public water supply when approved by the Regional
Engineer (Spokane), State Department of Health.
4. A public sewer system shall be made available for the project and individual service will be
provided to the lot. The use of individual on -site sewage disposal systems shall not be
authorized.
5. The use of private wells and water systems is prohibited.
SPOKANE COUNTY DIVISION OF UTILITIES
1. A wet (live) sewer connection to the area -wide public sewer system shall be constructed. A
sewer connection permit is required. Commercial developments shall submit historical and/or
estimated water usage prior to the issuance of the connection permit in order to establish sewer
fees.
2. The applicant shall submit expressly to Spokane County Division of Utilities, "under
separate cover", only those plan sheets showing sewer plans and specifications for the public
sewer connections and facilities for review and approval. Commercial developments shall
submit historical and/or estimated water usage as part of the sewer plan submittal.
3. Sewer plans acceptable to the Division of Utilities shall be submitted prior to the issuance
of the sewer connection permit.
4. Arrangements for payment of applicable sewer charges must be made prior to issuance of
sewer connection permit. Sewer charges may include connection charges and general facilities
charges. Charges may be substantial, depending on the nature of the development.
5. Any water service for this project shall be provided in accordance with the Coordinated
Water System Plan for Spokane County, as amended.
HE Findings, Conclusions and Decision
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Page 9
DATED this 7th day of May, 2001.
SPOKANE COUNTY HEARING EXAMINER
M C. Dempsey, WSBA ' _35
is ael
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Spokane County Resolution Nos. 96-0171 and 96-0632, the decision of the
Hearing Examiner on an application for a zone reclassification and accompanying SEPA
determination is final and conclusive unless within ten (10) calendar days from the Examiner's
written decision, a party of record aggrieved by such decision files an appeal with the Board of
County Commissioners of Spokane County, Washington. However, RCW 36.70B.110 (9)
indicates that administrative appeals of county land use decisions and SEPA appeals shall be
filed with the board of county commissioners within fourteen (14) calendar days of the date of
the decision.
This decision was mailed by certified mail to the Applicant, and to other parties of record
by regular mail, on May 7, 2001. Depending on which appeal period referenced above
legally applies, and counting to the next business day when the last day for appeal falls on a
holiday or weekend, THE APPEAL CLOSING DATE IS EITHER MAY 17, 2001 or MAY
21, 2001.
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, (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 8:30 a.m. and 5:00 p.m. Copies of the documents in the record will be made available at
the cost set by Spokane County.
HE Findings, Conclusions and Decision
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