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PRD-2020-0001 & VAR-2020-0001 Decision Amended 011921.pdfPage 1 of 15 CITY OF SPOKANE VALLEY HEARING EXAMINER Re: Preliminary Application by Diamond Rock Properties, LLC for a PRD for 19 townhouse units, one duplex, and one single family residence and a Variance for the reduction of the minimum lot size for a PRD ) ) ) ) ) ) FINDINGS, CONCLUSIONS, AND DECISION FILE NO. PRD-2020-0001 & VAR-2020-0001 SUMMARY OF PROPOSAL AND DECISION Proposal: The Applicant is proposing a Planned Residential Development (PRD) for 19 townhouse units, one duplex, and one single-family residence. The Applicant has requested a 20 percent increase to the density allowed pursuant to Spokane Valley Municipal Code (SVMC) 19.50.050(D). The Applicant has also submitted an application for a Variance to reduce the minimum 5-acre lot size for PRDs pursuant to SVMC 19.50.050(B). The property is located in the R-3 zone. Decision: The applications are denied. FINDINGS OF FACT BACKGROUND INFORMATION Applicant/ Owner: Diamond Rock Properties, LLC 2602 N Sullivan Road Spokane Valley WA 99216 Owner Representative: Whipple Consulting Engineers 21 S Pines Road Spokane Valley WA 99206 Property Location: The site address is 618 S. Long Road. The property is located approximately 250 feet south of the intersection of Long Road and 6th Avenue. The site is situated in in the SE ¼ of the NW ¼ of Section 19, Township 25 North, Range 45 East, Willamette Meridian, in the City of Spokane Valley, Washington. Legal Description: The legal description of the property is provided in Exhibit 4 (Subdivision Guarantee). The site is designated as Parcel Number 55192.3304. Zoning: The property is zoned R-3 (Single-Family Residential Urban District). Comprehensive Plan Designation: The property is designated as Single-Family Residential (SFR) in the City of Spokane Valley (“City”) Comprehensive Plan (CP). Site Description: The site is 3.01 acres in size and is rectangular in shape. The site consists of primarily of grasses and non-native weeds. There is an existing residence on proposed Lot 1 that was constructed in 2020. Otherwise, the land is undeveloped. There Page 2 of 15 are multiple, large piles of earth that were stockpiled on the property by the owner. The stockpiling of those materials is the subject of a code enforcement proceeding1 (Case No. ENV-2020-0001). From the center of the property the elevation falls 30 feet toward the south property line. The property is located along Saltese Creek, which runs along the southern boundary of the property. The creek is categorized as a Type-F Stream in accordance with SVMC 21.40.032 and is required to have a 150-foot Riparian Management Zone (RMZ) buffer. The southern portion of the property is located within a 100-year floodplain pursuant to Community Panel No. 53063C0593D of the Flood Insurance Rate Maps (FIRM) [Federal Emergency Management Agency, July 6, 2010]. Surrounding Conditions and Uses: Land to the north, east, and west of the site is comprised of single-family residential development (with some undeveloped land to the west), and all are in the R-3 zone and SFR designation. Land to the south is in Spokane County and is designated as Low Density Residential and developed with single-family residences. The land to the southwest is zoned MF (Multi-Family) and is currently undeveloped. Project Description: The Applicant proposes a PRD with four townhouse lots, one duplex lot, and one single-family residential lot for a total of 22 dwelling units. The project is located on Lot 4 of SHP-2013-0009. The lot sizes range in size from 6,716 to 20,967 square feet. The PRD also includes Tract A, which is 55,475 square feet. The site is adjacent to Long Road, a Local Access street. Full frontage improvements would be required across the entire frontage of the project site. Internally, the development will be served by private streets consistent with city standards and will not be required to have curb and gutter, sidewalks, or roadside swales. The RMZ buffer takes up approximately 35% of the property. The Applicant has proposed a reduction in the buffer pursuant to SVMC 21.40.034(A). The average buffer reduction being proposed is 14-feet across the property. The permanently impacted area will account for 4,035 square feet of area. The project also proposed to temporarily impact an additional portion of the RMZ of approximately 11,720 square feet. This area will include portions of townhouse structures, roadway improvements, and a portion of a drainage easement. This area will include approximately 5,300 cubic yards of fill material to level the slope for development, which would be replanted as part of the requirements in the Habitat Management Plan. Mitigation would be required to offset both the permanent and temporary impacts. Vested Application: On September 8, 2020, the City Council adopted Ordinance 20-008 and 20-009. These ordinances included the adoption of an area-wide rezone and implementing development regulations that amended the density requirements within the R-3 zone. The density for residential development increased from 6 dwelling units to 8 dwelling units per acre. These new development regulations went in to effect on September 23, 2020. Pursuant to SVMC 17.80.170(B), the proposed PRD is considered under the development regulations in effect at the time a complete application was submitted with the City. The application for this PRD was determined to be complete on August 25, 2020, and so it was processed pursuant to the development regulations in 1 The code enforcement proceeding is not before the Hearing Examiner. This decision only concerns the PRD and variance applications. Page 3 of 15 effect on that date. Pursuant to SVMC 17.80.170(C), subsequent building permits or other land disturbing activity permits related to the PRD shall be considered under the development regulations in effect on that date. PROCEDURAL INFORMATION Authorizing Ordinances: CP Chapter 4 (Land Use); SVMC Title 19 (Zoning Regulations); SVMC Title 20 (Subdivision Regulations); SVMC Title 21 (Environmental Controls); SVMC Section 22.20 (Concurrency); and Spokane Valley Street Standards (SVSS), Spokane Regional Stormwater Manual (SRSM), and Spokane Regional Health District (SRHD) regulations. Notice of Application: Mailed: September 4, 2020 Publication: September 4, 2020 Notice of Public Hearing: Mailed: November 3, 2020 Posted: October 29, 2020 Publication: October 30 & November 6, 2020 Notice of Cancelled Public Publication: November 13, 2020 Hearing: Notice of Rescheduled Public Mailed: December 1, 2020 Hearing: Posted: December 1, 2020 Publication: November 27 & December 4, 2020 Public Hearing Date: December 16, 2020 Site Visit: January 13, 2021 State Environmental Policy Act (SEPA): A Mitigated Determination of Nonsignificance (MDNS) was issued on October 2, 2020. Any appeal of the MDNS was due on October 30, 2020. No appeal was filed. Testimony: CITY OF SPOKANE VALLEY APPLICANT REPRESENTATIVES Connor Lange, Planner City of Spokane Valley 10210 E Sprague Avenue Spokane Valley WA 99206 Todd Whipple Whipple Consulting Engineers 21 S Pines Road Spokane Valley WA 99206 Erik Lamb, Deputy City Attorney City of Spokane Valley 10210 E Sprague Avenue Spokane Valley WA 99206 Taudd Hume Witherspoon Brajcich McPhee 601 W Main Avenue, Suite 714 Spokane WA 99201 Page 4 of 15 In attendance but did not testify and/or submitted written comments to the record: PUBLIC PUBLIC Pete Miller 18124 E Mission Avenue Spokane Valley WA 99016 Leticia Kagele 18421 E Sinto Avenue Spokane Valley WA 99016 Ben Jones 18517 E 9th Court Spokane Valley WA 99016 Jason Stock 17901 E 8th Avenue Spokane Valley WA 99016 Ben Schmauss 17905 E 11th Ct Greenacres WA 99016 Patricia Reed 18602 Turtle Creek Lane Spokane Valley WA 99016 Kurt & Kesslee Gumerman 17804 E 6th Avenue Spokane Valley WA 99016 Rose Marie Scott 18305 E Selkirk Estates Road Spokane Valley WA 99016 Robert Johnson 17925 E 8th Avenue Spokane Valley WA 99016 Jessica Hanna 18511 E 9th Court Spokane Valley WA 99016 Staci McCarty 621 S Moen Street Spokane Valley WA 99016 Nick Jones 622 S Moen Street Spokane Valley WA 99016 George King 17907 E. 8th Avenue Spokane Valley WA 99016 Attended but did not testify: Comments to the record only: Kimberly Griego 18126 E 9th Avenue Spokane Valley WA 99016 Roger and Mary Pepper 705 S Long Road Spokane Valley WA 99016 George Conrad 19004 E Kent Lane Spokane Valley WA 99016 Tyler Zyph tdzyph@gmail.com James Bulthuis 4029 S Best Court Veradale WA 99037 Justin Leach 18123 E 8th Avenue Spokane Valley WA 99016 Sam Gollapalli 17901 E 11th Court Spokane Valley WA 99016 Tim Adams 17720 E 6th Avenue Spokane Valley WA 99016 Page 5 of 15 Exhibits: 1. Vicinity Map 2. Zoning Map 3. Comprehensive Plan Map 4. Application Submittal 5. Preliminary PRD Map of Record Attended but did not testify: Comments to the record only: Jennifer Gilstrap 18403 E 4th Avenue Spokane Valley WA 99016 Charles and Vicki Kessler 705 S Arties Lane Spokane Valley WA 99016 Mark Miles 18504 E 10th Avenue Spokane Valley WA 99016 Jeffrey Price 416 S Long Road Spokane Valley WA 99016 Dan Griego 18126 E 9th Avenue Spokane Valley WA 99016 Michael and Mary Susan Harrell 602 S Arties Lane Spokane Valley WA 99016 Kari Jones 18517 E 9th Court Spokane Valley WA 99016 Marla Nelson 620 S Arties Lane Spokane Valley WA 99016 Keri Medjo 18422 E 8th Ave Spokane Valley WA 99016 Kai Marks 619 S Long Road Spokane Valley WA 99016 Diana Jones 622 S Moen St. Greenacres, WA 99016 Jennifer LaRue jlarue99@hotmail.com CITY OF SPOKANE VALLEY Lori Barlow Robin Holt Nicole Montano Jenny Nickerson Jerremy Clark Marty Palaniuk Tim and Nicole McCrea 17801 E 6th Avenue Spokane Valley WA 99016 William Scott 18305 E. Selkirk Estates Road Spokane Valley WA 99016 Dennis Crapo (Applicant/Owner) Diamond Rock Properties, LLC 2602 N Sullivan Road Spokane Valley WA 99216 Ben Goodmansen Whipple Consulting Engineers 21 S Pines Road Spokane Valley WA 99206 Page 6 of 15 6. Determination of Completeness 7. Notice of Application Materials 8. SEPA MDNS Determination 9. SEPA Checklist 10. Agency Comments 11. Certificate of Transportation Concurrency 12. Notice of Public Hearing Materials 13. Public Comments 14. Notice and Order for ENV-2020-0001 15. SHP-2020-0026 Decision 16. Staff PowerPoint Presentation 17. Applicant’s Counsel Letter and attachment (Meeting Minutes) 18. Applicant Letter 19. Applicant Presentation 20. Pre-Application Worksheet 21. Pre-Application Comments FINDINGS AND CONCLUSIONS To be approved, the proposed PRD and Variance must comply with the decision criteria set forth in the SVMC. The Hearing Examiner has reviewed the applications and the evidence of record with regard to the applications and makes the following findings and conclusions: A. Approval of the variance is a condition precedent to approval of the PRD. Without the variance, the proposal cannot satisfy the minimum lot size or open space requirements for a PRD. The Applicant has applied to develop the site as a PRD. See Exhibit 4. The minimum lot size for a PRD is 5 acres. See SVMC 19.50.050(B). In addition, each PRD is required to dedicate 30 percent of the gross land area for common open space for the use of its residents. See SVMC 19.50.060. A PRD on a minimum-sized lot would need to set aside at least 65,340 square feet as open space. See Staff Report, p. 8. The proposed PRD cannot satisfy either of these minimum requirements given the size of the site. The gross acreage of the site is 3.01 acres. See Exhibit 4. The open space set aside under this proposal is 39,331.50 square feet. See Staff Report, p. 8. Thus, the site is almost 2 acres below the minimum lot size. The proposed open space is approximately 26,000 square feet below the amount required for a minimum-sized lot, an overall reduction in open space of nearly 40% below the standard. See id. Normally, the failure to satisfy the minimum development standards would require denial of the proposal without any further deliberation. Here, however, the Applicant has requested approval of a variance to allow the foregoing deviations from the development standards. Page 7 of 15 The Hearing Examiner concludes that the proposed PRD can only be approved if the variance is first approved.2 This is true because the proposal cannot meet the minimum development standards for a PRD without obtaining relief from the minimum lot size and open space requirements. The only avenue to obtain such relief, on this record, is through the proposed variance. B. The proposal does not satisfy all of the criteria necessary to approve a variance application. See SVMC Title 19.170 (Variances). Section 19.170.030 of the SVMC sets forth the criteria that must be satisfied in order for the Hearing Examiner to approve a variance. Based upon a review of those criteria, and an examination of the record, the Hearing Examiner concludes that the Applicant is not entitled to a variance and, therefore, the application should be denied. 1) The proposed variance constitutes the grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and the zone in which the property is located. See SVMC 19.170.030(A). The Hearing Examiner cannot approve a variance that confers a “special privilege” to the owner/applicant. See SVMC 19.170.030(A). The Staff contended that approving the variance would grant a “special privilege” because it would allow the site to develop on smaller lots, with greater densities, and with differing housing types than allowed on neighboring properties. See Staff Report, p. 9. The Applicant countered that a variance was justified because the property is encumbered with a 150-foot setback from Saltese Creek, while other properties in the area have setbacks as small as 50 feet. See Exhibits 4 & 18. The Applicant also disagreed with the Staff’s analysis concerning lot size, density, and housing type. See id. The Hearing Examiner agrees with the City that approving the variance would confer a “special privilege” upon the Applicant in violation of this criterion. However, the Hearing Examiner reaches this result for different reasons than the City, as discussed below. A “special privilege” is granted when a property owner is granted an exception from the use limitations of the zone. See Hoberg v. City of Bellevue, 76 Wn.App. 357, 360, 884 P.2d 1339 (1994). The language of SVMC 19.170.030(A) is explicit on this point when it refers to special privileges “inconsistent with the limitation upon uses of other properties” in the zone. See SVMC 19.170.030(A) (emphasis added). In other words, the rule against conferring special privileges is a prohibition on granting “use variances.” A “use variance” is one that seeks to permit a use that is inconsistent with the zoning classification. See Hoberg, 76 Wn.App. 360. A “use variance” is not to be confused with an “area variance.” An “area variance” seeks relief from dimensional standards, such as a setbacks, lot coverage, or height. See id. 2 The Hearing Examiner does not have authority to reimagine the proposal so that it satisfies the development standards without the variance component. The Hearing Examiner can only consider the application presented. Any substantive revisions to the proposal will require a new review process, presumably through the submission of a new application or its equivalent and a new public hearing. Page 8 of 15 The Hearing Examiner concludes that this variance application, in substance, is a use variance. The property is located in the R-3 zone. A “dwelling, townhouse” is “prohibited” in the R-3 zone. See SVMC 19.60.050 (permitted use matrix); see also SVMC 19.60.040(E) (“Prohibited uses are designated [in the permitted use matrix] with a blank cell.”). The Applicant has proposed to develop 19 townhouse units on the site. The City is correct that this use, in the typical case, would not be allowed. The townhouse use remains an option, however, under the PRD regulations. PRD applications are allowed in all residential zones of the city. See SVMC 19.50.020. The uses permitted in a PRD include residential uses of “all types as defined by” Chapter 19.503. See SVMC 19.50.030(B). Townhouses are one type of residential use. See SVMC 19.60.050 (permitted use matrix). Clearly, then, townhouses can be permitted in an R-3 zone. However, that use is allowed only if the proposal qualifies for development as a PRD in the first instance. Section 19.50.030, entitled “Permitted Uses,” contains the following proviso: The following uses are permitted in a PRD; provided, that they meet the standards and criteria established in Chapter 19.50 SVMC. See SVMC 19.50.030 (emphasis added). It is only when those standards and criteria are satisfied that the code allows “all housing types” to be developed. See SVMC 19.50.030(B). One of those standards is the site acreage minimum. See SVMC 19.50.050(B). Thus, under the PRD chapter, the “permitted uses” are tied to satisfaction of the PRD development standards, including the minimum lot size requirement. The Hearing Examiner determines that the requested variance operates as a “use variance.” The proposed use, townhouse development, is normally prohibited in the R-3 zone. The only way around this restriction is a PRD application, which overrides the R-3 use restriction for qualifying properties. However, because the property does not qualify for a PRD, townhouses are not an allowed use on the site. The Applicant must obtain a variance in order to permit the proposed use. Granting the variance will, in substance, transform a “prohibited use” into a “permitted use.” The Hearing Examiner acknowledges that lot size and open space requirements are literally numeric, dimensional standards. Normally, modifications to the lot size or open space minimums would be considered an “area variance.” However, as explained above, the proposed variance does not merely grant relief from a dimensional standard. It serves to change the types of uses allowed on the property. This is the result of the unique circumstances of this case, as well as the specific provisions and purposes of the PRD chapter. The Hearing Examiner assumes that there are situations in which a variance is appropriate because of the limited size of a site. In the Hearing Examiner’s view, however, this is not one of those cases. 3 Curiously, SVMC 19.50 does not actually define the housing types that are allowed in a PRD. In addition, there is no list of housing types that are considered consistent or inconsistent with that chapter. There is no reference to any particular housing type, such as single-family residences, duplexes, or townhouses. The Hearing Examiner concludes, under the circumstances, that “all housing types” is nonexclusive and, therefore, allows townhouses, among other types of residential development. Page 9 of 15 2) The variance is not necessary because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property. See SVMC 19.170.030(B). In addition, the variance is not necessary to provide the Applicant with use rights and privileges permitted to other properties in the vicinity and zone. See id. The Applicant contends that the variance is justified due to two “special circumstances” affecting the site, namely the size of the property and its location. The Appellant Applicant contends that because the property is only 3.01 acres4 in size, a variance is necessary to develop the property to its full potential. See Exhibit 17. The Appellant Applicant further insists that the 150-foot setback from the stream effectively eliminates one-third of the property from development, a burden not shared by other properties in the vicinity. See id. In response, the City acknowledges that the proximity of Saltese Creek impacts5 the development of the site. See Staff Report, p. 9. However, the Staff questions the Applicant’s claim that the buffer “eliminates” development activities within the buffer. See id. The City also argues that the proposed PRD will result in excessive density and housing types that are not allowed in the R-3 zone. See id. The Appellant Applicant contests the City’s arguments concerning both density and housing types. See Exhibits 17 & 18. The Hearing Examiner concludes the Applicant has not satisfied this criterion for a variance, for two primary reasons. First, the Hearing Examiner concludes that the variance is not “necessary because of” special circumstances effecting the property. Second, the Applicant has not been denied any “use rights and privileges” enjoyed by other properties in the vicinity and zone. For these reasons, as explained in greater detail below, the Hearing Examiner concludes that the variance request should be denied. As a threshold matter, SVMC 19.170.030(B) only permits a variance when it is “necessary because of” special circumstances related to the property. The terms “necessary,” “because,” and “because of” are not defined in the SVSS or the municipal code, by the Hearing Examiner’s review. When a term is not defined by the code, the ordinary dictionary meaning is employed. The adjective “necessary” means “absolutely needed” or “compulsory.”6 The word “because” means “for the reason that; since.”7 The phrase “because of” means “by reason of” or “on account of.”8 Thus, the Hearing Examiner can only grant a variance when it is absolutely needed or compulsory by reason of or on account of the “special circumstances” effecting the land. The need for the variance did not arise from a hardship created by some peculiar, physical condition of the property. The need for the variance, rather, was driven by the 4 The Applicant’s attorney stated in his correspondence that the size of the property is 3.3 acres. See Exhibit 17. However, the Application and Staff Report both state that the property is 3.01 acres in size. See Exhibit 4; see also Staff Report, p. 6. The Hearing Examiner is using the 3.01-acre figure. 5 The City also stated that the site’s topography had an impact on the development potential of the site. However, the Applicant did not claim that the variance was necessary due to the topography of the site. As a result, the Hearing Examiner does not consider topography to be among the justifications for a variance. 6 https://www.merriam-webster.com/dictionary/necessary (definitions 1 and 2d). 7 https://www.merriam-webster.com/dictionary/because (definition 1) 8 https://www.merriam-webster.com/dictionary/because%20of Page 10 of 15 development goals and design choices of the Applicant. In an effort to achieve the “highest and best use” of the site, the Applicant elected to develop the property with 22 residential units, primarily in the form of townhouses. See Exhibit 5; Testimony of T. Whipple. The only way the Applicant could pursue this plan was through a PRD, which (1) allows townhouses and (2) permits a discretionary increase in density. However, the property must be at least 5 acres in size to qualify for development as a PRD. The need for the variance did not arise because the property is too small. The need for the variance arose because the Applicant decided to design the project as a PRD even though the property was not large enough to qualify for that type of development in the first place. Even disregarding the forgoing, a variance is not “necessary” because the property is only 3.01 acres in size. The site can be developed with single-family residences and duplexes consistent with the R-3 zoning. See Staff Report, pp. 9-10. The lot is not “undersized” for the zone. There is no legal deficiency or unique difficulty created by the size of the property. The Applicant is allowed to develop the property in the same manner as other properties in the vicinity and sharing the same zoning. It is true that the property’s physical characteristics limit the amount of dwelling units that can be developed on the site. However, every development must account for the physical limitations of the site, whether that is size, topography, or some other condition. The mere fact that physical limitations exist does not demonstrate that a variance is necessary. Similarly, a variance is not “necessary” because of the 150-foot buffer along the creek. As stated above, the property can be developed with single-family residences and duplexes consistent with its zoning. The presence of the buffer does reduce the area available for dwelling units, but this is not a justification, in itself, to allow a deviation from the development standards. The Applicant did not demonstrate that the buffer made it unduly burdensome for the Applicant to comply with the applicable development standards. Instead, the Applicant insisted that the buffer constituted a “special circumstance” because other properties in the vicinity and zone have been allowed to develop with only 50-foot buffers. See Exhibits 17-18; Testimony of T. Whipple. The Hearing Examiner disagrees with this analysis. There is no evidence in this record demonstrating that other properties in the vicinity and zone are being developed in a manner that is being denied to the Applicant. The Applicant did not specifically identify any other properties that, although governed by the same regulations, were developed with 50-foot setbacks rather than the required 150-foot setback. See St. Clair v. Skagit County, 43 Wn.App. 122, 126-27, 715 P.2d 165 (1986) (rejecting a similar argument regarding lot widths). Even if such examples could be located, in order to make an apples-to-apples comparison, the Applicant would have to demonstrate that such developments occurred legally, and did not rely upon non-conforming use rights or vested rights in order to proceed with substandard buffers. See id.; see also Ling v. Whatcom County Board of Adjustment, 21 Wn.App. 497, 500, 585 P.2d 815 (1978) (granting a variance based upon adjacent nonconforming uses would set an inappropriate precedent that undermines the zoning code). It may be true that many or even most nearby properties along the creek were developed when the buffer was only 50 feet. However, those properties were developed under a rule that has since been repealed. Testimony of T. Whipple. The application acknowledges that these developments constitute nonconforming uses. See Exhibit 4 Page 11 of 15 (Variance Application, Part III(E)). In addition, as the City explained, the 150-foot buffer was established in 2016 as a result of an update to the City’s critical areas ordinance. See Staff Report, p. 10. Any development applications submitted after the effective date of that ordinance must honor the 150-foot buffer. This rule applies to all properties along the creek and in the vicinity, including the Applicant’s property. By the Applicant’s reasoning, the variance should be approved because the Applicant cannot develop its property under the more relaxed development standards that existed in the past. Because properties developed prior to 2016 did not have such a large buffer to contend with, it follows, they enjoyed “use rights and privileges” now being denied to the Applicant. The Hearing Examiner cannot accept this logic. The Applicant’s argument erroneously compares the Applicant’s undeveloped property, which is governed by current codes, and other properties which were developed under former codes. The Applicant did not cite any authority supporting the novel theory that property owners are denied “use rights and privileges” because, under prior law, other property owners have been allowed to develop their properties with less restrictions. To the Hearing Examiner’s knowledge, no such authority exists. The proper comparison is between the Applicant’s property and “other properties” in the same vicinity, in the same zone, and governed by the same development standards. Were it otherwise, every enactment of a new or more restrictive development regulation could be considered a deprivation of a “use right” or “privilege” would justify a variance. The variance would become a tool to undermine legislative intent. A variance is supposed to remedy the undue hardship that can arise from the strict application of development standards. A variance is not intended to immunize property owners from changes in the law. Finally, the Applicant does not have a “use right” or “privilege” to develop its land with 50-foot buffers. The Applicant cannot be deprived of a right it never had in the first instance. The “use rights and privileges” available to property owners are defined by the law in effect at the time of an application. Had the Applicant applied to develop its property prior to the 2016 change in the law, the Applicant would have had the right to develop its property with 50-foot buffers. The Applicant submitted its application years later, after the law had changed, and the buffer was legally established at 150 feet. The Applicant does not have a vested right to develop its property under the former law, and the Hearing Examiner does not believe it is proper to, in effect, create a vested right by variance. 3) The variance is not consistent with the purpose and intent of the zoning code. See SVMC 19.170.030(G). Townhouses are prohibited in the R-3 zone. The PRD provisions of the zone code create an exception to this rule. Townhouses are allowed through a PRD, if the proposed site is over 5 acres in size. See Paragraph B.1 above. The PRD provisions also permit certain commercial uses9 in the R-3 zone. Specifically, for sites over 10 acres, Neighborhood Commercial uses are permitted in a PRD. See SVMC 19.50.030(C). In such cases, the code allows a professional office, cultural facilities, 9 The Hearing Examiner understands that the Applicant is not proposing to develop commercial uses. The point here is that the minimum acreage thresholds have a material effect on the uses allowed in a PRD. Page 12 of 15 trade schools, training studios, eating and drinking establishments, and other uses.10 See SVMC 19.60.050 (Permitted Uses Matrix). None of these uses would normally be allowed in the R-3 zone. In the Hearing Examiner’s view, the minimum lot size standards are fundamental to the policymakers’ decision to allow additional density, townhouse development, and certain commercial uses in residential zones such as R-3. Certainly, the City Council was aware of the tradeoffs when it adopted the PRD standards. Higher density use was permitted, for example, but at least 5 acres had to be set aside for this type of development. Some commercial uses are allowed, but only if the site is at least 10 acres in size. These thresholds are important and serve a purpose. The minimum site size ensures that there is sufficient area to fulfill the intent and objectives of the PRD. See SVMC 19.50.010. For example, one of the central purposes of a PRD is to encourage the “creation of permanent open space by permitting greater flexibility in zoning requirements than is generally permitted by other sections of the SVMC.” See SVMC 19.50.010(A). A PRD is supposed to “create or preserve usable open space” for its residents. See SVMC 19.50.010(B). Each PRD is required to “dedicate at least 30 percent of the gross land area for common open space.” See SVMC 19.50.060. As previously discussed, on a 5- acre site, this means that at least 65,340 square feet must be set aside as open space, not including floodplains, drainage easements/areas, or creeks. See SVMC 19.50.060(D)(3). Granting this variance is not consistent with the intent or purposes of the PRD provisions of the zone code. Testimony of C. Lange. The flexible development rules of a PRD assume that the site will be at least 5 acres in size. See id. This site is almost 2 acres below the minimum. The proposal includes 40% less open space than the minimum required in a PRD. That is about 26,000 square feet below the standard. This project also requests a 20% increase in density and proposes the construction of higher density housing type, both of which are only allowed if the property has sufficient area to qualify for a PRD. The Hearing Examiner concludes that a developer should not be allowed to take advantage of the flexible design options of a PRD without dedicating at least the minimum threshold of acreage to the development. The PRD provisions allow higher density development in exchange for creating certain amenities, in particular with respect to open space. This proposal seeks the benefit of the higher density option, but without providing the amount of land or open space that is required. Granting a variance to approve such a proposal would substantially undermine the fundamental policies underlying the PRD code. As a result, the Hearing Examiner concludes that the proposal is not consistent with the zoning code. 4) The Applicant did not demonstrate that strict compliance with the development code creates an unnecessary hardship. See SVMC 19.170.030(D). The Applicant asserted that the small size of the property and the large buffer along the creek unfairly limited its development options for the property, in particular regarding density. See Exhibit 17; Testimony of T. Whipple. The City responded that while the property’s size and buffer do reduce the development options, a project can be designed 10 Numerous other uses are allowed subject to supplemental regulations. See SVMC 19.60.050 (Permitted Uses Matrix). Page 13 of 15 in a manner consistent with the zoning requirements while still achieving a reasonable density. See Staff Report, p. 9-10. The Hearing Examiner generally agrees with the City. The property size and proximity to the creek do reduce the area available for development. However, the issue is whether these conditions create an “unnecessary hardship” in complying with the development standards. In the Hearing Examiner’s view, there was no showing that the strict enforcement of the codes causes an “unnecessary hardship.” Considering only the gross acreage, the site can support up to 18 dwelling units (3.01 acres x 6 units per acre). See Exhibit 4 (PRD Application, Part III). Taking the site conditions and legal restrictions into account, a development could be designed for 16 dwelling units on the site. See Staff Report, pp. 9-10; Testimony of C. Lange. The City contended that this density could be achieved while complying with the standards of the R-3 zone, such as minimum lot size (5,000 square feet) and maximum density (6 dwelling units per acre), while also accounting for the 150-foot buffer. See id. The Applicant disputed this calculation, estimating that, without the PRD/variance, the site could only support 11.22 dwelling units. See Exhibit 18. The site can be put to a reasonable and permitted use without the variance. See Exhibit 4 (Variance Application, Part III, ¶ F). The Applicant can develop a number of dwelling units on the site (whether that is 11, 16, or somewhere in between), consistent with the R-3 standards. The Applicant agrees, as it must, that the property can be “developed to limited development densities.” See Exhibit 4 (Variance Application, Part III, ¶ F). The Applicant objects, however, that developing the site at a lower density is not the “highest and best use” of the property. See id.; Testimony of T. Whipple. In other words, being required to develop the site at less than the maximum possible density is an “unnecessary hardship,” in the Applicant’s view. The Hearing Examiner disagrees. Requiring strict compliance with the development standards is not the source of the hardship on the Applicant. The hardship in this case arises from attempting to achieve the maximum possible density on a site that does not lend itself to that objective. In addition, the fact that the developer can conceive of a “higher” or “better” use for its property than the development standards allow is not a justification for granting an exception to those standards. At various times, the Applicant seems to argue that the development standards are arbitrary, unreasonable, or unwise. These are policy judgments, not arguments relevant to the decision criteria. The criteria for a variance are not tied to the Hearing Examiner’s opinions about the wisdom of the development regulations. Those judgements are reserved to the City legislature. The Applicant may not be able to develop the property at the density or with the amenities it desires. The resulting project may not fit with the Applicant’s original vision or economic expectations. However, the Applicant’s personal goals and expectations are not relevant to a variance decision. “Evidence of hardship or difficulty that will support a variance must relate to the land itself and not to the owner-applicant.” See St. Clair v. Skagit County, 43 Wn.App. 122, 126-27, 715 P.2d 165 (1986) (citing Martel v. Vancouver, 35 Wn.App. 250, 256, 666 P.2d 916 (1983)). The Hearing Examiner concludes that the unfulfilled expectations of the Applicant do not qualify as hardships for purposes of a variance decision. Page 14 of 15 C. The Hearing Examiner concludes that it is unnecessary to address the other decision criteria. The Hearing Examiner has concluded that the proposal does not satisfy several criteria necessary to approve a variance and, therefore, the variance application must be denied. See SVMC 19.170.030(A), (B), (D), and (G). As previously explained, approval of the variance is a precondition to approval of the PRD. See Part A. Therefore, the PRD application must also be denied. Under the circumstances, the Hearing Examiner deems it unnecessary to address the remaining variance criteria or the details of the PRD application. D. The Hearing Examiner does not base this decision on the alleged political motivations underlying the City’s recommendation to deny the applications. The Applicant strenuously argued that the City’s recommendation to deny its variance/PRD application was motivated by politics. The Applicant supported this claim with both testimony and records tending to show that the City originally supported the proposal, only later to change its position, allegedly due to political pressure. Regardless of whether this contention is accepted or not, the Hearing Examiner is in no position to evaluate this case or render a decision based upon political considerations. Even if that was possible or appropriate, the record is not sufficient to permit such an exercise, in the Hearing Examiner’s view. As a result, the Hearing Examiner bases this decision solely on the decision criteria and the facts and law relevant to those criteria. DECISION Based on the findings and conclusions above, it is the decision of the Hearing Examiner to deny the proposed PRD and Variance. DATED this 15th day of January, 2021. Brian T. McGinn City of Spokane Valley Hearing Examiner c/o City of Spokane Office of the Hearing Examiner 808 W. Spokane Falls Blvd. Spokane WA 99201 509-625-6010 hearingexaminer@spokanecity.org Page 15 of 15 NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC) and Chapter 36.70C of the Revised Code of Washington (RCW), the decision of the Hearing Examiner on an application for a PRD and Variance is final and conclusive unless within 21 calendar days from the date of issuance of the Hearing Examiner’s decision, a party with standing files a land use petition in Superior Court pursuant to RCW Chapter 36.70C. On January 19, 2021, a copy of this decision will be mailed by regular mail to the Applicant and to all government agencies and persons entitled to notice under SVMC 17.80.130(4). Pursuant to RCW Chapter 36.70C, the date of issuance of the Hearing Examiner’s decision is three (3) days after it is mailed. The date of issuance of the Hearing Examiner’s decision will be January 22, 2021. THE APPEAL CLOSING DATE FOR THE DECISION IS FEBRUARY 12, 2021. The complete record in this matter is on file during and after the appeal period with the City of Spokane Valley Community & Public Works Department-Building and Planning Division, located at 10210 E. Sprague Avenue, Spokane Valley WA 99206; by contacting staff at (509) 921-1000. Copies of the documents in the record will be made available at the cost set by the City of Spokane Valley. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.