VE-04-02RE:
SPOKANE COUNTY HEARING EXAMINER
Variance from fence height restrictions, in
the Urban Residential-3.5 (UR-3.5) Zone;
Applicant: The Oaks School
File No. VE-04-02
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND DECISION
This matter coming on for public hearing on June 12, 2002, the Hearing Examiner, after
review of the land use application and the entire record, and finding good cause therefore,
hereby makes the following findings of fact, conclusions of law and decision:
I. FINDINGS OF FACT
1. The variance application requests a variance from the maximum height restrictions of the
County Zoning Code for a non -sight obstructing, residential fence in the front yard, flanking
street yard and side yard, for a school playground in the Urban Residential-3.5 (UR-3.5) zone.
2. The site is located east of and adjacent to Havana Street, south of and adjacent to 6th
Avenue, and north of and adjacent to 7th Avenue, in the SW 1/4 of the NW 1/4, Section 23,
Township 25 North, Range 43 EWM, Spokane County, Washington.
3. The site is currently referenced as County Assessor's tax parcel nos. 35232.4102,
.4103, .4104 and .4105. The subject property is addressed at 4302 E. 6th Avenue and 517 S.
Havana Street. The site is legally described as Lots 3-10 of Carnhope Addition, recorded at
Book "B", Page 89 of Plats, records of Spokane County_ Auditor, in Spokane County
Washington.
4. The applicant is The Oaks School, c/o Greg Ditton, 3011 S. Lincoln Drive, Spokane,
WA 99203. The legal owner of the site is Glad Tidings Assembly of God, 4224 E. 4th
Avenue, Spokane, WA 99202.
5. The Hearing Examiner conducted a site visit on June 11, 2002. A public hearing was
held on the proposed rezone on June 12, 2002. The requirements for notice of public hearing
were met.
6. The Hearing Examiner heard the application pursuant to the County Hearing Examiner
Ordinance (County Resolution No. 96-0171) and the County Hearing Examiner Rules of
Procedure (County Resolution No. 96-0294).
7. The following persons testified at the public hearing:
Jason Langbehn
Division of Planning
1026 West Broadway
Spokane, WA 99260
Scott Engelhard
Division of Engineering
1026 West Broadway
Spokane, WA 99260
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VE-04-02
Page 1
Greg Ditton
3011 S. Lincoln Drive
Spokane, WA 99203
Gordon Churchill
4307 E. 6tb Avenue
Spokane, WA 99202
8. The Examiner left the record open after the public hearing to allow the applicant to
resolve differences with an adjoining property owner regarding the design of the proposed
fence. The applicant submitted a letter dated July 2, 2002 from the applicant to a
neighboring property owner, Gordon Churchill, indicating an agreement between such parties
regarding the design of the fence.
9. On July 8, 2002, the Examiner notified the applicant by letter that the proposed
variance would be approved, subject to the entry of a written decision.
10. The Hearing Examiner takes notice of the County GMA Comprehensive Plan and
Capital Facilities Plan, the Phase I Development Regulations, the 2001 County Standards for
Road and Sewer Construction, County official zoning maps, County Zoning Code, County
Code, other applicable development regulations, and prior land use decisions in the vicinity.
11. The record includes the documents in the project file at the time of the public hearing,
the documents and testimony submitted at the public hearing, the documents submitted for
the record after the hearing through July 8, 2002, and the items taken notice of by the
Hearing Examiner.
12. The variance application, which was submitted on June 12, 2002, is exempt from
compliance with the State Environmental Policy Act and the County's Local Environmental
Ordinance, pursuant to WAC 197-11-800 (6)(b).
13. The site is approximately 1.2 acres in size, relatively flat in topography, and rectangular in
shape. The south half of the property is improved with a 2,000-square foot shop and an adjacent
grass playfield, while the north half is paved. A 4-foot high, non -sight obstructing, cyclone fence
surrounds the perimeter of the site, except that the east side lot line is partially fenced.
14. The site plan of record submitted on May 17, 2002, illustrates an 8-foot high, non -sight
obstructing, cyclone fence around the perimeter of the subject property. This includes fencing
along the two front yards on the site (6th Avenue and 7th Avenue), the flanking street yard
(Havana Street), and side yard (east property line).
15. Section 14.810.020 (1) of the County Zoning Code prohibits any non -sight obstructing
fence more than 48 inches in height from being erected and/or maintained within the required
front yard or flanking street yard of any lot used for residential purposes, and also prohibits any
residential fence from exceeding six (6) feet in height.
16. Section 14.810.020 (2) of the County Zoning Code prohibits residential, commercial or
industrial fencing that constitutes a hazard to the traveling public, as determined by the County
Engineer, within the area designated in such section as the "clear view triangle." In cases where
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VE-04-02 Page 2
the clear view triangle will not provide adequate sight distance, County Planning and the County
Engineer may determine the required area needed to reduce hazards to the traveling public.
17. Effective January 15, 2002, the County implemented a new comprehensive plan ("GMA
Comprehensive Plan"), Capital Facilities Plan, County Urban Growth Area (UGA)
boundaries, and Phase I Development Regulations; all pursuant to the State Growth
Management Act (GMA). The County also repealed the interim development regulations
previously adopted by the County under the State Growth Management Act. See County
Resolution No. 2-0037. Minor revisions were made to the Phase I Development Regulations
on May 7, 2002. See County Resolution No. 2-0470.
18. The land lying west of the site is located in the City of Spokane. The Phase I Development
Regulations designate the site and neighboring land, except to the west, in the Low Density
category of the GMA Comprehensive Plan, and inside the County UGA. Such regulations
preserved the UR-3.5 zoning of the site and neighboring properties to the north, south and east.
The site is also located inside the Aquifer Sensitive Overlay zone.
19. Surrounding land uses consist of single-family homes on urban -sized lots. The
applicant is currently leasing the subject property from the owner, and plans to build a
permanent school on the site within 4-5 years.
20. The purpose of the variance is to improve the safety and security of the playground.
This includes the prevention of balls from entering the street or sidewalks, which would have
to be retrieved by children along the busy arterial of Havana Street; and to provide safety in
an area frequented by transients. Construction of the fence outside the required yards would
make the playground, which is open to neighborhood children and Oaks School, too small to
be useable.
21. The applicant submitted a sight distance analysis prepared by a qualified engineering
consultant. The analysis recommended that the proposed fence be located further from
Havana Street at its intersections with 6th and 7th Avenues. County Engineering concurred
with the analysis, and required compliance with the recommendations contained in the
analysis as a condition of approval. The City Engineer indicated that the proposed variance
was acceptable as long as the clear view zone was not obstructed. The site plan of record
was revised to conform to the site distance analysis.
22. The Staff Report properly analyzes the consistency of the proposed variance with the
GMA Comprehensive Plan and the variance criteria specified in the County Zoning Code.
The Examiner hereby adopts and incorporates such analysis by reference herein as findings of
fact.
23. The proposal has been conditioned for compliance with the understanding reached
between the applicant and the owner (Gordon Churchill) of the property Lying directly north
of the site, across 6th Avenue, regarding the design of the fence. A resident (Jeremy Foster)
of land lying east of the site, along 7th Avenue, expressed support for the proposal. As
conditioned, there was no public agency or private opposition to the proposal.
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24. The proposed variance, as conditioned, will not have any significant adverse impact on
neighboring properties.
Based on the above findings of fact, the Hearing Examiner enters the following:
IL CONCLUSIONS OF LAW
1. Because of special circumstances applicable to the property, strict application of the
maximum fence height requirements of Zoning Code 14.810.020 (1) creates practical
difficulties and deprives the property of rights and privileges enjoyed by other properties in
the vicinity and similarly zoned.
2. As conditioned and modified, granting of the subject variance will neither be
detrimental to the public welfare nor injurious to the property or improvements in the vicinity
and the Urban Residential-3.5 (UR-3.5) zone in which the site is located.
The proposal, as conditioned, conforms to the GMA Comprehensive Plan.
4. The proposal, aside from the deviances requested by the proposed variance, complies
with the Zoning Code and other applicable development regulations.
5. The variance application, as conditioned, meets the criteria for approving a variance
under Chapter 14.404 of the County Zoning Code. Approval of the variance application, as
conditioned, is appropriate under section 11 of the County Hearing Examiner Ordinance,
adopted by County Resolution No. 96-0171.
III. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the application for
a variance from the maximum height requirements for a non -sight obstructing, residential
fence contained in Section 14.810.020 of the County Zoning Code, is hereby approved
subject to the conditions of approval listed below.
Any conditions of public agencies that have been added to or significantly revised are
italicized.
Failure to comply with the conditions of this approval may result in suspension or
revocation of the variance by the Hearing Examiner.
SPOKANE COUNTY DIVISION OF PLANNING
1. All conditions imposed by the Hearing Examiner shall be binding on the "Applicant,"
which term shall include the developer and owner of the property, and their heirs, assigns and
successors.
VE-04-02 Page 4
HE Findings, Conclusions and Decision
2. The variance applies to the property legally described as Lots 3-10 of Carnhope
Addition, recorded at Book `B", Page 89 of Plats, records of Spokane County Auditor, in
Spokane County Washington. The site is currently referenced as County Assessor's tax
parcel nos. 35232.4102, .4103, .4104 and .4105.
3. The proposal shall comply with the Urban Residential-3.5 zone and other applicable
provisions of the Spokane County Zoning Code, as amended, except for the deviation
allowed by the approval of the setback variances.
4. The applicant shall develop the proposed fencing in conformance with the site plan of
record submitted on May 17, 2002, except as modified to comply with conditions of approval
and regulation standards. Minor variations, to be approved by the Director of the Division
of Planning/designee, shall only be allowed to meet regulation standards and conditions of
approval. Any other modification must be presented to the Hearing Examiner for review and
approval.
5. The fence shall generally be designed as indicated in the letter dated July 2, 2002,
from Greg Ditton to Mike Dempsey, in File No. VE-04-02.
6. The Division of Planning shall prepare and record with the Spokane County Auditor a
Title Notice, which notes that the property in question is subject to a variety of special
conditions imposed as a result of this approval. This Title Notice shall serve as public notice
of the conditions of approval affecting the property in question. The Title Notice shall 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 Lots 3-10 of Carnhope Addition, recorded
at Book `B", Page 89 of Plats, records of Spokane County Auditor, in Spokane County
Washington, is the subject of a land use action by the Spokane County Hearing Examiner on
August 20, 2002, approving a height variance for a fence and imposing a variety of special
development conditions. File Number VE-04-02 is available for inspection and copying in
the Spokane County Division of Planning."
SPOKANE COUNTY DIVISION OF ENGINEERING AND ROADS
Prior to release of a building permit or use of property as proposed:
1. The fence shall be constructed in accordance with the recommendations of the sight
distance analysis submitted on April 25, 2002, by CLC Associates, prepared by Timothy
Schwab, P.E. The sight distance analysis has been accepted by the County Engineer, per
letter dated May 2, 2002, from Steve Stair, P.E., Spokane County Transportation Engineer.
2. Roadway standards, typical roadway sections and drainage plan requirements are found
in Spokane County Resolution No. 1-0298, as amended, and are applicable to this proposal.
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VE-04-02
Page 5
3. No construction work is to be performed within the existing or proposed public right of
way until plans have been issued by the County Engineer. All work is subject to inspection
and approval by the County Engineer.
Approach permits are required for any access to the Spokane County road system.
5. 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 contact the applicable utilities
regarding responsibility for adjustment or relocation costs and to make arrangements for any
necessary work.
CITY OF SPOKANE DEPARTMENT OF ENGINEERING SERVICES/TRAFFIC
ENGINEERING
1. Construction of the fence at 6th Avenue and Havana Street must not obstruct the clear
view zone.
2. The City and the County will cooperatively require appropriate signage and markings
for the school crossings. This was begun with the permitting process.
DATED this 20th day of August, 2002. _
SPOKANE COUNTY HEARING EXAMINER
C
Michae C. Dempsey, WSBA #8235
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VE-04-02 Page 6
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 variance 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 (3) days after
it is mailed.
This Decision was mailed by Certified Mail to the Applicant and by first class mail to other
parties of record on August 20, 2002. The date of issuance of the Hearing Examiner's decision
is therefore August 23, 2002, counting to the next business day when the last day for mailing
falls on a weekend or holiday. 1'HE LAST DAY FOR APPEAL OF THIS DECISION TO
SUPERIOR COURT BY LAND USE PETITION IS SEPTEMBER 13, 2002.
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 8:30 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.
Pursuant to RCW 36.70B.130, affected property owners may request a change in
valuation for property tax purposes notwithstanding any program of revaluation.
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