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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 ZE-34-00 Page 1 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 ZE-34-00 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 ZE-34-00 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 ZE-34-00 Page 6 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 ZE-34-00 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 ZE-34-00 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 ZE-34-00 Page 10