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SUB-2020-0005 APP-2021-0001 Decision FinalPage 1 of 29 CITY OF SPOKANE VALLEY HEARING EXAMINER Re: Application by Whipple Consulting Engineering, Inc. for River Landing Subdivision to divide one parcel into 23 residential lots on approximately 3.33 acres in an R-3 zone ) ) ) ) ) ) FINDINGS, CONCLUSIONS, AND DECISION File Nos. SUB-2020-0005 & APP-2021-0001 I. SUMMARY OF PROPOSAL AND DECISION Proposal: The Applicant seeks approval of a subdivision to create 23 residential lots on approximately 3.33 acres in the Single Family Residential Urban District (R-3) zone. Mr. Frederick Barela appealed the Determination of Nonsignificance (DNS) issued for the project. Decision: The preliminary plat is approved, with revised conditions. The State Environmental Policy Act (SEPA) appeal is denied. II. BACKGROUND/FINDINGS OF FACT A. General Information Applicant Ben Goodmansen Whipple Consulting Engineers, Inc. 21 S. Pines Road Spokane Valley WA 99206 Owner: Casey Mason Liberty Land, Inc. 1270 E. Nora Avenue, Suite E Spokane Valley WA 99216 Property Location: Parcel number 55073.0208, addressed as 17504 East Montgomery Avenue, located approximately 300 feet west from the intersection of Montgomery Avenue and Corbin Street, further located in the SE ¼ of the SW ¼ of Section 07, Township 25 North, Range 45 East, Willamette Meridian, Spokane County, Washington. Zoning: R-3 Comprehensive Plan (CP) Map Designation: Single-Family Residential (SFR) Site Description: The site consists of a single 3.33-acre parcel and is rectangular in shape. The site is improved with a single-family residence, a barn, and a chicken coop. The terrain is relatively flat. The site includes landscaping typical for a residential lot with several trees. The south two-thirds of the parcel is an open field covered with grass and Page 2 of 29 weeds. There are trees along east property line. There are no water features or critical areas on the site. Surrounding Conditions: Property north of the site is zoned R-2 and property to the south, east, and west is zoned R-3. The surrounding properties are predominantly developed with single-family residences. The Centennial Trail is north of the site. Residential development exists to the north, south, and west of the subject parcel. An increase of higher density residential development has occurred since the City’s incorporation in 2003. The surrounding subdivisions are developed with single-family and duplex residences with an approximate density of six dwelling units per acre (DUs/acre). Directly adjacent to the west is a five-lot short plat that received preliminary approval on November 4, 2020, allowing for single-family or duplex lots. Substantial development has occurred within one-half mile of the site to include a number of subdivisions: Sonata Springs, Greenacres Valley Estates, Greenacres Valley, Flora Springs, Hidden Valley, Inverness, Flora Ridge, Flora Meadows, and Centennial Place subdivisions. The subdivisions are primarily single-family homes with an approximate density of four to five DUs/acre. Additionally, since 1984 there have been 15 short plats within one-half mile and 12 have been processed since the City’s incorporation March 31, 2003. On September 23, 2020, the City Council passed Ordinances 20-008 and 20-009 allowing for an increased density in the R-3 zoning district of eight DUs/acre. Project Description: The subdivision will divide one parcel into 23 residential lots on approximately 3.33 acres. The lot areas range from 5,541 up to 8,987 square feet, excluding the lot designed to maintain the existing residence. The proposed lot areas are not large enough for duplex dwellings and will only permit single-family dwellings. The subdivision will be served by Montgomery Avenue. Montgomery Avenue will be improved with curb, gutter, swale, and sidewalk along the frontage of the development. No new right-of-way (ROW) is required to be dedicated along Montgomery Avenue. A new public street will be extended through the subdivision. For reasons explained in the Staff Report, the name of the new public street is to be determined. The new public street will be constructed as a local access street with ROW, curb, gutter, swales, and sidewalks. The street is proposed to terminate along the south property line with a hammerhead turnaround. The ROW dedication and border easement required along the new public street will create a nonconforming setback for the existing residence on Lot 2. An administrative exception (ADE-2020-0013) was approved February 17, 2021, for the reduced setback. See Exhibit 6. The site currently has three structures (house, barn, and chicken coop). The house will be preserved. The barn and the chicken coop will be demolished. The Applicant submitted a request to deviate from 2009 Spokane Valley Street Standards (SVSS) 7.5.14.a, requiring block lengths to not exceed 600 feet. A design deviation was granted by the City Engineer on January 28, 2021. See Exhibit 5. Page 3 of 29 B. Procedural Information Approval Criteria: Title 19 Spokane Valley Municipal Code (SVMC) – Zoning Regulations; Title 20 SVMC – Subdivisions; Title 21 SVMC – Environmental Controls; and SVMC Section 22.20 – Concurrency. Hearing Date: March 17, 2021 Notice of Application: Mailed: November 20, 2020 Publication: November 20, 2020 Notice of Public Hearing: Mailed: March 2, 2021 Posted: January 19, 2021 Published: February 26 & March 5, 2021 Site Visit: March 18, 2021 Testimony: City of Spokane Valley Karen Kendall, Planner City of Spokane Valley 10210 E. Sprague Avenue Spokane Valley WA 99206 Aziza Foster, Rule 9 Intern City of Spokane Valley 10210 E. Sprague Avenue Spokane Valley, WA 99206 Applicant Todd Whipple Whipple Consulting Engineers, Inc. 21 S. Pines Road Spokane Valley WA 99206 Taudd Hume Witherspoon Brajcich McPhee 601 W. Main Avenue, Suite 714 Spokane WA 99201 Appellant Frederick Barela 17316 E. Montgomery Avenue Spokane Valley WA 99016 Public Testimony Perry Vinson 17521 E. Montgomery Avenue Spokane Valley WA 99016 Betsy Weigle & Chris Lamb 17510 E Montgomery Avenue Spokane Valley WA 99016 Steve Heaps 17511 E. Montgomery Avenue Spokane Valley WA 99016 Keith Kager 17501 E. Montgomery Avenue Spokane Valley WA 99016 Page 4 of 29 Submitted comments to the record or present at hearing but did not testify: Public City of Spokane Valley Anne Oswald 17919 E Shannon Ave. Spokane Valley WA 99016 Erik Lamb, Deanna Horton, Jenny Nickerson, Jerremy Clark, Lori Barlow Jackie White 17505 E. Indiana Avenue Spokane Valley WA 99016 Applicant/Owner Richard & Alice Beattie 17324 E. Montgomery Avenue Spokane Valley WA 99016 Ben Goodmansen & Austin Fuller Whipple Consulting Engineers, Inc. Casey Mason Liberty Land, Inc. Preliminary Plat Exhibits: Staff Report, including: 1. Vicinity Map 2. Comprehensive Plan Map 3. Zoning Map 4. Aerial Map 5. Application, Design Deviation, & Double Frontage Analysis A. Cultural Survey 6. ADE-2020-0013 Decision 7. Preliminary Plat Map of Record 8. Notice of Application Materials 9. SEPA DNS Determination & Transportation Concurrency 10. SEPA Checklist 11. Trip Generation & Distribution Letter (TGDL) 12. Notice of Public Hearing Materials 13. Agency Comments 14. Public Comment A. Public Comment rec’d 03/12/21 15. SEPA Appeal 16. Staff Report PowerPoint Presentation 17. Applicant’s Presentation 18. Applicant’s Letter to the Hearing Examiner 19. Applicant’s email re: Posting of Sign SEPA Appeal Exhibits: 20. City’s Prehearing Brief and Declarations, including Exhibit 1 Map showing relationship between Appellant’s property and Subject Property Exhibit 2 Declaration of Karen Kendall dated March 10, 2021 Page 5 of 29 Exhibit 3 Declaration of Carrie Koudelka dated March 10, 2021, including Exhibit 1 Affidavit of Publication 21. Appellant’s List of Witnesses 22. Appellant’s Photos 23. Applicant’s Appeal Presentation 24. Applicant’s Letter in Opposition to SEPA Appeal On April 9, 2021, the Hearing Examiner issued a letter to Consolidated Irrigation District #19 (the “District”) requesting additional information. That letter and the responses from the District and Applicant were marked as exhibits as follows: 25. Hearing Examiner’s Letter to District Requesting Additional Information 26. Applicant’s Initial Response (via email) to the Hearing Examiner’s Letter 27. District’s Response (via email) dated 04/12/21 to the Hearing Examiner’s Request for Additional Information 28. Correspondence with Applicant re: District’s Response III. FINDINGS AND CONCLUSIONS A. SEPA Appeal 1. Background Facts re SEPA Appeal On October 26, 2020, the Applicant submitted a SEPA Checklist to the City of Spokane Valley in support of the project. See Exhibit 10. On November 20, 2020, the City of Spokane Valley issued the Notice of Application (NOA) for this project. See Exhibit 8 (NOA). The NOA states that the comment period on this application ends at 5:00 PM on December 20, 2021. See id. With respect to the environmental review under SEPA, the NOA provides as follows: The optional DNS process in WAC 197-11-355 is being used. THIS MAY BE YOUR ONLY OPPORTUNITY TO COMMENT ON THE ENVIRONMENTAL IMPACTS OF THE PROPOSED PROJECT. See id. That same day, the NOA was published in the local newspaper. See Exhibit 8 (Affidavit of Publication). The NOA was also mailed to adjacent property owners, as required by the municipal code. See Exhibit 8 (Affidavit of Mailing & NOA Mailing Packet). Mr. Frederick Barela (the “Appellant”) did not submit any comments on the project during the SEPA comment period. See Exhibit 20 (Dec. of K. Kendall ¶ 10). On January 8, 2021, the City of Spokane Valley issued a DNS for the project. See Exhibit 9 (DNS). Consistent with the NOA, the DNS stated that it was “issued using the optional DNS process in Washington Administrative Code (WAC) 197-11-355.” See id. The DNS also noted: “There is no further comment period on the DNS.” See id. Page 6 of 29 That same day, a Notice of DNS was published in the local newspaper. See Exhibit 9 (Affidavit of Publication). Notice of the DNS was also posted at the property. See Exhibit 9 (E-mail of A. Fuller 1-8-2021, 8:17 AM & Photo of SEPA Determination). On January 22, 2021, Mr. Barela timely submitted an appeal of the SEPA determination related to the proposed subdivision. See Exhibit 15. In his submission, Mr. Barela included an extensive list of issues on appeal. See id. On March 10, 2021, the City submitted the City of Spokane Valley’s Pre-Hearing Brief, along with supporting materials. See Exhibit 20. Among other things, the City contended that because the Appellant failed to submit comments during the public comment period, he did not have standing to appeal under SEPA. See Exhibit 20 (City’s Pre-Hearing Brief, p. 3). The City maintained that lack of standing was a threshold, procedural issue and that the appeal should be dismissed without reaching the substantive claims. See id. Just prior to the commencement of the hearing, the Applicant submitted its response to the SEPA appeal. See Exhibit 24. The Applicant contended, among other things, that Mr. Barela failed to exhaust his administrative remedies when he did not submit comments during the SEPA comment period. See id. The Applicant, like the City, insisted that the Appellant lacked standing to challenge the City’s environmental determination and, therefore, the appeal should be dismissed. See id. On March 17, 2021, the Hearing Examiner conducted a public hearing on the subdivision application together with the SEPA appeal. At the hearing, the City and the Applicant both reiterated their argument that the Appellant lacked standing to pursue an appeal under SEPA. The Appellant did not dispute the background facts set forth above or specifically address the standing issue presented by the City and the Applicant. Resolution of this question, then, comes down to whether the Hearing Examiner agrees with the legal analysis presented by the City and Applicant, based upon his own review of the authorities. 2. Mr. Barela is precluded from maintaining a SEPA appeal because he did not submit comments within the 14-day comment period for the DNS. In making its threshold determination, the City utilized the “optional DNS process” described in the SEPA regulations and incorporated into the local environmental ordinance. See WAC 197-11-355; see also SVMC 21.20.090. The optional DNS process allows a local government to use a “single integrated comment period” to obtain comments on the NOA and the anticipated threshold determination under SEPA. See id. In such cases, there is usually not a second comment period when the DNS is subsequently issued. See id. With respect to the River Landing subdivision, the City decided to utilize the optional DNS process with a single, integrated comment period. The City’s election to utilize this process is explicit in the NOA. The notice conspicuously warns the reader that the comment period may constitute the “only opportunity” to comment on the potential environmental effects of the proposal. See Exhibit 8 (NOA). It is undisputed in this case that the Appellant did not provide public comments on the project. However, in his appeal, the Appellant did object that the notice procedure was antiquated (lacking a digital method, such as e-mail, rather than publication in a newspaper) and that he was Page 7 of 29 not provided with timely notice in order to facilitate his appeal of the DNS. See Exhibit 15 (Appeal Narrative, p. 1). The first question, then, is whether Mr. Barela was provided with notice in accordance with the applicable standards. The SVMC provides that the “notice of application shall be published in an appropriate regional or neighborhood newspaper or trade journal…” See SVMC 17.80.110(B). The SVMC further provides that the NOA shall be sent by regular mail to the Applicant, government agencies entitled to notice, any person making a written request for a copy of the notice, and most notably: All adjacent property owners of record as shown on the most recent property tax assessment roll… See SVMC 17.80.110(B)(1)-(4). The NOA was both published in the local newspaper and mailed to adjacent property owners on January 8, 2021. See Exhibit 9. Therefore, those requirements were satisfied. Mr. Barela is not an Applicant, an agency representative, or a person who submitted a written request for individual notice. Therefore, he was not entitled to notice for any of those reasons. See SVMC 17.80.110(B)(1), (3) & (4). The only remaining basis for individual notice to the Appellant is SVMC 17.80.110(B)(2), which states that the NOA must be sent by regular mail to all adjacent property owners. However, Mr. Barela is not an adjacent property owner. See Exhibit 8 (Affidavit of Mailing & NOA Mailing Packet). Therefore, the NOA was not mailed to Mr. Barela. See Exhibit 20 (Dec. of K. Kendall § 8). Under the applicable standards, this was correct. Mr. Barela was not entitled to individual notice of the application/environmental determination. The Hearing Examiner concludes that the Appellant received all the notice that was required under the applicable standards. Legally, Mr. Barela was not entitled to notice of the application beyond the publication in the local newspaper. See e.g. Snohomish County Farm Bureau v. WSDOT, Pollution Control Hearings Board, PCHB No. 10-124, 10-135, & 10-138, Order Granting Partial Summary Judgment, 2011 WL 4469763, p. 8 (September 11, 2011) (holding that publication in the newspaper was sufficient notice under the agency’s adopted SEPA procedures and no individual notice was required, even though the appellants had a well-known interest in the project). The Hearing Examiner is sympathetic to his contention that newspaper notice is not always practical or as likely to reach as many people as other forms of notice. However, the Hearing Examiner has no authority to change the type or form of notice that is required. State law does not appear to change the analysis. It provides that a local government should employ “reasonable methods to give the notice of application to the public.” See Revised Code of Washington (RCW) 36.70B.110(4); see also WAC 197-11-355(2)(c) (stating notice of the optional DNS process shall be given in accordance with RCW 36.70B.110). “Publication” is one example of a reasonable method to inform the public. See RCW 36.70B.110(4). That said, state law only dictates specific forms of notice when the local government has not enacted its own methods. See id. When standards have been adopted, the local government is explicitly allowed to “use its existing notice procedures.” See id. In addition, the City’s environmental ordinance Page 8 of 29 provides that when the optional DNS process is used, the public notice requirements set forth in Chapter 17.80 (discussed above) as supplemented by WAC 197-11-355 (the optional DNS process) “will suffice to meet the public notice requirements in WAC 197-11-510(1)(b).” See SVMC 21.20.130(A)(4) (emphasis added). In other words, the notice procedure adopted by the City was specifically intended to fulfill the notice requirements of the state SEPA regulations. The Hearing Examiner concludes that the Appellant was given legal notice of the application/SEPA determination in accordance with the SVMC. However, the Appellant did not submit written comments raising concerns about the potential environmental effects of the project on or before December 20, 2020, i.e. the expiration of the SEPA comment period. The next question that must be addressed, then, is whether the lack of written comment by the Appellant operates as a bar to his appeal of the DNS. WAC 197-11-545(2) states that the lack of comment by members of the public, within the SEPA comment period, “shall be construed as lack of objection to the environmental analysis…” This language suggests that the failure to comment cuts off the right to contest certain decisions later in the process. However, the SEPA rules do not literally state that a SEPA appeal is legally precluded by the failure to comment. And there is no case law in Washington that applies this rule to preclude an appeal under SEPA. Nonetheless, the City and the Applicant insist that the appeal is barred under the SEPA rules. They cite to the decisions of state boards (e.g. Growth Management Hearings Board, etc.) to support their contentions. The Hearing Examiner reviewed various board decisions and finds the reasoning of the relevant decisions to be on-point and persuasive. In what is probably the most-cited case on the issue, the Pollution Control Hearing Board concluded that the language of WAC 197-11-545(2) requires “other agencies and the public” to submit comments within the comment period in order to have standing to seek further review via a SEPA appeal. See Spokane Rock Products, Inc. v. Spokane County Pollution Control Authority, Pollution Control Hearings Board, PCHB No. 05-127, Order Granting Motion for Summary Judgment, p. 9 (February 13, 2006). In reaching this conclusion, the Board cited to Professor Settle, who interpreted WAC 197-11-545(2) as follows: [The SEPA rules go] beyond consulted agencies to provide that lack of timely comment by other agencies or members of the public ‘shall be construed as lack of objection to the environmental analysis.’ Since this provision does not purport to absolutely bar legal challenge for nonparticipation in the DEIS commenting process, apparently common law principles of waiver and exhaustion of remedies would govern. See id., p. 8 (citing Richard L. Settle, The Washington State Environmental Policy Act, A Legal and Policy Analysis, § 14.01 [10], pages 14-76/77 (12/03 ed.) (footnotes omitted)). The Board found this interpretation to be consistent with the policies and objectives underlying SEPA. One of SEPA’s objectives, for example, is to provide consideration of environmental factors at the earliest possible stage in the process. See id., p. 8. SEPA’s policies would be frustrated if objections to an environmental analysis are reserved until a party receives an unfavorable decision. See id. “Participation and objection to the environmental analysis is generally regarded as a prerequisite to review of agency decisions.” See id., p. 9 (citing to Washington case law). By equating the lack of Page 9 of 29 comment with lack of objection, the language of WAC 197-11-545(2) acknowledges that the comment period is part of an available administrative process that should be utilized by interested parties. See id., p. 10. In other words, comments must be submitted during the comment period in order to exhaust all the available administrative remedies and to preserve a party’s standing to subsequently challenge SEPA decisions on appeal. See id., pp. 9-10. The same conclusions have been reached in several other state board decisions. See e.g. Pacificorp dba Pacific Power and Light v. City of Walla Walla, Shoreline Hearings Board, SHB No. 13-023, Order on Motions, 2014 WL 1390955, p. 8 (February 12, 2014) (holding that Pacific Power was precluded, by the terms of WAC 197-11-545(2), from pursuing a SEPA appeal when the petitioner failed to submit timely comments to the SEPA lead agency); see also City of Shoreline, et al. v. Snohomish County, et al., Central Puget Sound Growth Management Hearings Board, Case Nos. 09-3-0013c & 10-3-0011c, Order on Dispositive Motions, 2011 WL 701709 (January 18, 2011) (dismissing the SEPA appeal of a citizen group for lack of standing because none of its members provided comments during the comment period); see also Lowen Family Limited Partnership v. City of Seattle, Central Puget Sound Growth Management Hearings Board, Case No. 13-3-0007, Order of Dismissal, 2013 WL 5651357, p. 4 (September 30, 2003) (holding that the family limited partnership’s failure to participate and comment during the comment period, as required by WAC 197-11-545(2), deprived it of standing to raise SEPA issues on appeal). It was undisputed that the Mr. Barela did not submit comments regarding the DNS during the 30-day comment period, which expired on December 20, 2020. Mr. Barela received all the notice he was due in accordance with the municipal code and state law. That notice specifically advised that the optional DNS process was being employed and that the stated comment period would be the only opportunity to raise concerns about the environmental effects of the proposal. The process followed by the lead agency was consistent with the SEPA requirements. Under the circumstances, Mr. Barela was obligated to submit his objections to the environmental analysis for River Landing during the designated comment period. Because he did not do so, he did not exhaust his administrative remedies and, therefore, does not have standing to challenge that analysis via a SEPA appeal to the Hearing Examiner. As a consequence, the SEPA appeal must be denied. B. Preliminary Plat and Land Use Application To be approved, the proposed preliminary plat must comply with the criteria set forth in the SVMC and demonstrate consistency with the CP. The Hearing Examiner has reviewed the plat application and the evidence of record with regard to the application and makes the following findings and conclusions: 1. The proposed preliminary plat complies with all applicable standards in SVMC Title 19.70 (Density and Dimensions). The property proposed for development is zoned R-3, Single-Family Residential Urban District. Single-family residential uses are outright permitted in this zone. See SVMC 19.60.050 (Permitted Use Matrix). In addition to satisfying the use limitations of the zone, any residential development must also meet the minimum lot size, density, Page 10 of 29 setback, maximum lot coverage, and building height requirements of the zone. See Staff Report, p. 4. The proposed preliminary plat satisfies the development standards that are applicable at this stage. The minimum lot size in the R-3 zone is 5,000 square feet. See SVMC Table 19.70-1. The preliminary plat satisfies this standard by designing lots that range from 5,541 square feet up to 8,987 square feet in size. See Staff Report, p. 2. The proposed preliminary plat also adheres to the applicable density standards. The maximum allowed density in the R-3 zone is eight DUs/acre. See SVMC Table 19.70-1. The Applicant proposes to divide 3.33 acres into 23 residential lots. See Staff Report, p. 4. This results in a gross density of 6.9 units per acre, which is within the density limits of the zone. See id. As part of the subdivision review, Development Engineering has required a new 38-foot ROW dedication and a six-foot border easement along the frontage of Lot 2. See id. This would reduce the remaining front yard setback area between the existing residence and the border easement to 8.78 feet. See id. ADE-2020-0013 was approved on February 17, 2021, approving the reduced setback. See Exhibit 6. The side and rear yard setbacks are in compliance with the SVMC. See Staff Report, p. 4; see also SVMC Table 19.70-1. The Hearing Examiner agrees with the Staff that the proposed preliminary plat complies with minimum requirements for lot size and density and is consistent with the zoning regulations. The other development standards, such as building height, lot coverage, and setbacks, will be addressed at the building permit stage. Therefore, this criterion is satisfied. 2. The proposed preliminary plat conforms to applicable standards of the SVMC Title 20 – Subdivision Regulations. As conditioned, the project is consistent with City plans, regulations, and design and development standards as required by SVMC 20.20.090. The Staff Report reviewed those design standards in some detail and provided that the project must conform to those requirements. See Staff Report, p. 5. The Hearing Examiner agrees with the Staff’s analysis, which is hereby incorporated by reference into this decision. The project is consistent with and promotes the public health, safety, and welfare, and serves the public interest, as required by SVMC 20.20.100(A) and SVMC 20.20.100(K). The proposed development is consistent with the CP policies and the provisions of the R-3 zone, as discussed elsewhere in this decision. Thus, the project generally advances both the long-term and short-term goals for the land. The proposal will put underdeveloped land to productive use and will provide additional housing opportunities for the community. Various permits must be obtained in order to allow the project to move forward and, thus, the development must adhere to additional standards prior to proceeding. See Staff Report, pp. 4-7. There are also myriad project conditions designed to protect the public interest and ensure that the project complies with applicable development regulations. The project makes appropriate provisions for open space. See SVMC 20.20.100(B). The proposed subdivision must adhere to SVMC requirements regarding setbacks and lot Page 11 of 29 coverage. Adherence to these standards will ensure that an appropriate amount of open space is incorporated into this development. See Staff Report, p. 6. The project makes appropriate provisions for drainage ways. See SVMC 20.20.100(C). All drainage from the project will be managed in accordance with the 2008 Spokane Regional Stormwater Manual (SRSM). See Staff Report, p. 6. Drainage plans will be reviewed and approved by the City. See id. The subdivision satisfies the requirements for streets and roads, alleys, sidewalks, and other public ways. See SVMC 20.20.100(D). The streets, roads, and sidewalks of the proposed subdivision will be constructed to City standards, and that requirement has been incorporated as a condition of approval. For example, the new street internal to the plat will be designed and built as a local access street with curb, gutter, swale, and sidewalks. See Staff Report, p. 6. Street improvements are also required along Montgomery Avenue. See id. The project makes appropriate provisions for public transit. See SVMC 20.20.100(E). The routes and availability of transit service are determined by the Spokane Transit Authority (STA). See Staff Report, p. 6. The closest STA stop on Route 95 is on the corner of Flora Road and Mission Avenue, approximately 0.70 mile southwest from the site. See id. The route has a weekday frequency of every 30 minutes and an evening and weekend frequency of every 60 minutes. See id. There is a public, potable water supply to serve the subdivision. See SVMC 20.20.100(F). The water purveyor issued a Certificate of Water Availability for the project. See Exhibit 5. The water distribution system is adequate to serve both the development and the existing customers. See Paragraph 4(c) below. The subdivision will be served by a sanitary sewer system. See SVMC 20.20.100(G). A sanitary sewer system, operated by Spokane County Environmental Services (SCES), is available for this project. See Staff Report, p. 6. SCES confirmed, through a Certificate of Sewer Availability, that the sanitary sewer system will be extended by the developer to serve this project. See Exhibit 5. The project makes appropriate provisions for parks and recreation. See SVMC 20.20.100(H). The City’s adopted level of service (LOS) standard for park area is 1.92 acres of park area per 1,000 residents. There is no evidence in this record that the proposed subdivision will negatively affect the availability of parks or recreational areas. In addition, there are sufficient parks and recreational areas in the vicinity. Centennial Trail runs along the Spokane River north of the site with a public access approximately 0.25 of a mile the west of the site. See Staff Report, p. 6. Greenacres Park, an 8.3-acre neighborhood park, is located 0.8 miles south of the site and Sullivan Park, a 16.1-acre community park, is located two miles west of the site. See id. The project makes appropriate provisions for playgrounds, schools, and school grounds. See SVMC 20.20.100(I). The site is located in the Central Valley School District (CVSD). See Staff Report, p. 6. Riverbend Elementary School is located approximately 0.70 miles south of the site, Greenacres Middle School is located within 2 miles south of the site, and Central Valley High School is located approximately 3 southwest of the site. See id. CVSD was notified of this project and did not submit any comments. See id. Page 12 of 29 The project addresses the need for sidewalks and other planning features that ensure safe walking conditions for students who only walk to and from school. See SVMC 20.20.100(J). Sidewalks do not exist along Montgomery Avenue in front of the subject parcel. See Staff Report, p. 6. Sidewalk exists 100 feet east in front of the Base Camp Subdivision. See id. SHP-2020-0033, located immediately to the west is required to construct sidewalk abutting the subject parcel. See Staff Report, pp. 6-7. Both sides of the new public street are required to provide sidewalks. See Staff Report, p. 7. The proposed subdivision is in conformity with the applicable development standards. See SVMC 20.20.100(L). The Hearing Examiner agrees with the Staff that the proposed subdivision satisfies the applicable development codes. See Staff Report, p. 7. Neither the Hearing Examiner’s review of the matter nor the testimony or evidence presented at the hearing suggested that the project deviates from the relevant standards. In any case, compliance with the applicable development standards is a condition of approval of this project. The proposal makes appropriate provisions for other requirements found to be necessary and appropriate and for which written standards and policies have been adopted. See SVMC 20.20.100(M). The Hearing Examiner agrees with the Staff that the project, as conditioned, satisfies or will satisfy all criteria set forth by other agencies. See Staff Report, p. 7. In addition, the project includes detailed conditions that incorporate the comments of all responding agencies or departments. To the Hearing Examiner’s knowledge, the proposal does not deviate from any other standards or policies. 3. The proposal complies with SVMC Title 21 (Environmental Controls). The City, as the lead agency, issued a DNS for this project. See Exhibit 9. This determination was made after considering the environmental checklist, the application, relevant portions of the development code, the TGDL, a site assessment, and comments from affected agencies. See Staff Report, p. 7. In making its threshold determination, the City properly followed the procedures outlined in Title 21 and state regulations. There is nothing in this record that demonstrates that the City erred in its decision or that environmental concerns warrant additional restrictions or conditions on the development, in the Hearing Examiner’s view. As discussed above, Mr. Barela filed an appeal of the DNS. Although the appeal was timely, the appeal must be denied because Mr. Barela lacks standing to challenge the City’s threshold determination under SEPA. See Section A above. No one else appealed the DNS in this case. As a result, the Hearing Examiner must conclude that the City’s decisions under SEPA are not subject to further debate. Having said that, the Hearing Examiner nonetheless notes that the record plainly supports the conclusion that there are no material or significant environmental impacts from this project that are not sufficiently addressed by project conditions. Mr. Barela made a number of contentions, both in his appeal and through public testimony, which should be briefly addressed. For example, Mr. Barela claimed there are wetlands on the site; portions of the property are within a designated floodplain; that there is a stream on the site; and that habitat of threatened or endangered species would be impacted by the project. See Exhibit 15; Testimony of F. Barela. The Hearing Examiner disagrees, concluding that the record in this case does not support these claims. Page 13 of 29 The City confirmed that there are no wetlands, open waterways, riparian areas, or habitat associated with any native species. See Staff Report, p. 7; see also Exhibit 10 (SEPA Checklist ¶¶ B(3)(a)). There are no critical areas on the site. See Staff Report, p. 8. The property is not located within a designated floodplain according to Federal Emergency Management Agency (FEMA), as confirmed by Community Panel No. 53063C0566D of the Federal Insurance Rate Maps for the City of Spokane Valley. See Staff Report, p. 7; see also Exhibit 10 (SEPA Checklist ¶¶ B(3)(a)). There was no expert testimony establishing, contrary to the available sources of information, that the site contained streams, wetlands, floodplains, or other critical areas. Similarly, there were no comments from relevant agencies, such as Washington State Department of Natural Resources (WSDNR) or Washington State Department of Ecology (WSDOE), raising any concerns in this regard. Mr. Barela contended that the project would result in loss of habitat for squirrels, bees, butterflies, eagles, hawks, migratory birds (e.g. geese), and several other species. See Exhibit 15; Testimony of F. Barela. He relied upon various sources (e.g. CITES.ORG, websites, etc.) to support his contentions. Ms. Weigle and Mr. Lamb, the neighbors to the immediate east of the project site, also noted that they have seen many animals on their land and the neighboring properties, including owls, rabbits, raccoons, turkeys, and a wide variety of birds. See Exhibit 14 (E-mail of B. Weigle & C. Lamb 2-13-2021). However, no one was able to identify any threatened or endangered species that have habitat on the subject property. Mr. Barela did not substantiate the claim that threatened or endangered species were actually present on the development site, for example. The project engineer testified that he checked the appropriate sources of information and concluded that there were no threatened or endangered species on the property. Testimony of T. Whipple; see also Exhibit 10 (SEPA Checklist ¶¶ B(4)(c) & B(5)(b)). The City did not reach a contrary conclusion. Further, there were no comments from the relevant agencies, such as the Washington Department of Fish & Wildlife, suggesting that there were threatened or endangered species or critical habitat on this site. There was no expert testimony at the public hearing tending to show that the project impacts protected species. The Hearing Examiner agrees with the Staff’s determination that the project, as submitted and conditioned, satisfies the environmental controls set forth in the municipal code. See Staff Report, p. 7. As a result, this criterion for approval is satisfied. 4. SVMC 22.20.010 states that concurrency must be evaluated for transportation, water, and sewer. The project satisfies the concurrency requirements for transportation and sewer. The project also may satisfy the concurrency requirement for water, provided the project conditions are fulfilled. Under the concurrency standards of the SVMC, adequate public facilities must be available when the service demands of development occur. See Staff Report, p. 8. More specifically, the SVMC states that concurrency must be evaluated for transportation, water, and sewer. See SVMC 22.20.010(A). Page 14 of 29 a) Transportation Concurrency. On or about October 21, 2020, the Applicant submitted a TGDL to the City. See Exhibit 11. After evaluating the TGDL, the Spokane Valley City Engineer issued a Certificate of Transportation concurrency for the project. See Exhibit 9. That certificate confirms that the transportation system either is or will be sufficient to support the proposed development. See id. b) Sewer Availability. On or about October 22, 2020, SCES issued a Certificate of Sewer Availability for the project. See Exhibit 5. The certificate confirms that public sewer is available to serve the project. See id. It further indicates that the developer will design, fund, construct, and provide financial surety for the necessary systems to extend sewer to the site and provide service connections. See id. c) Water Availability. On or about October 16, 2020, the District issued a Certificate of Water Availability for the project. See Exhibit 5. The certificate confirms that the system has a current Washington State Department of Health (WSDOH) permit allowing the “number of new taps or water requested.” See id. However, the certificate also states that the main in Montgomery is only 6-inch in diameter, and that the developer will need to provide an 8-inch feed “connecting to Montgomery off Mansfield.” See id. Accordingly, the Staff recommended a project condition requiring the developer install an 8-inch line between Mansfield and Montgomery. See Staff Report, p. 15 (Consolidated Irrigation District #19, Condition 1). At the hearing, the project engineer objected that this proposed condition would require the developer to obtain an easement from a third party in order to extend the water line. Testimony of T. Whipple. The project engineer pointed out that the developer has no control over whether another property owner would grant such an easement. See id. As a result, he contended that the condition was improper and should be stricken. See id. The project engineer also predicted that an analysis of the water system would confirm that the existing 6-inch line in Montgomery is sufficient to serve the proposed development. See id. After considering the matter further, the Hearing Examiner decided to re-open the record to obtain additional comments from the District, as well as from the project engineer. The Hearing Examiner sent a list of questions to the District. See Exhibit 25. The District’s answers to the Hearing Examiner’s questions can be summarized as follows. First, the District confirmed that it did not have any easement rights to facilitate the installation of a connection between Mansfield and Montgomery. See Exhibit 27. Thus, the proposed condition would require the developer to obtain an easement from a third party landowner. Second, the District stated the developer should be required to either (1) install an 8-inch line between Mansfield and Montgomery (the “Mansfield Loop”), or (2) replace the existing 6-inch line in Montgomery with an 8-inch line. See id. One of these improvements is necessary to support the proposed development, irrespective of the outcome of a water model or hydraulic analysis. See id. The District concluded that “no matter what” the addition of 23 residents would “surely” have an unacceptable impact on existing customers. See id. Page 15 of 29 In response to the District’s comments, the project engineer submitted a water model and hydraulic analysis for the proposed subdivision, along with a memorandum summarizing the results. See Exhibit 29. The project engineer considered numerous modeling scenarios, including scenarios with the two improvements suggested by the District. Ultimately, the project engineer concluded that the proposed subdivision can connect to the existing 6-inch line without significantly affecting the water pressure of the system. See id. The project engineer determined that installing an 8-inch line in Montgomery would result in no real effect on the Maximum Daily Demand. See id. The other option, i.e. the Mansfield Loop, would significantly increase pressure for fire flows. See id. And both alternatives decrease maximum velocity as well. See id. However, neither alternative addresses any impacts on performance that would allegedly result from the proposed development. In other words, the proposed subdivision would not have a significant effect on the performance of the water distribution system, according to the project engineer’s analysis. See id. After considering the record, the supplemental comments of the District, and the project engineer, the Hearing Examiner reaches the following conclusions regarding water availability. First, the District is the designated water purveyor and has sufficient water rights to serve the proposed development. Thus, sufficient capacity exists to serve the proposed development, as confirmed by the Certificate of Water Availability. Second, the addition of 23 homes to the existing water distribution system will not have a significant impact on the water pressure for domestic purposes. See Exhibit 25. The estimated pressure of the existing water distribution system, without the project, is 70 psi. See id. (Table 1, A1). If the project is added, without any other improvements being made to the system, the water pressure only reduces to 69.76 psi. See id. (Table 1, B1). The changes in pressure are similarly small in other scenarios. The installation of an 8- inch line in Montgomery only raises the water pressure to 70.01 psi. (Table 1, C1). See id. Adding the project and an 8-inch line only lowers the water pressure to 69.85 psi. See id. (Table 1, D1). If the Mansfield Loop is installed instead, the water pressure improves only slightly, to 69.92 psi. See id. (Table 1, E1). In all scenarios, the differences in pressure fall within a tight range, from 69.76 psi, on the low side, to 70.01 psi, on the high side. And in all cases, the water pressure does not fall below 68 psi, the minimum pressure assigned to the model based upon the existing pressure measured at Mission and Long Road. See id. The project engineer further concluded that the project would not create deficiencies in fire flow, with or without the improvements suggested by the District. See Exhibit 29 (Table 2). The project engineer’s memorandum notes: As seen in Table 2, the fire flow pressures range from 44.96 psi to 62.27 psi. The WDOH requires 20 psi of pressure at the hydrant per WAC 246- 290-230(6), therefore pressure requirements are met in all scenarios. See id. (emphasis added). Although the improvements suggested by the District would be beneficial to the system, there is no evidence that the addition of the proposed development creates any deficiencies in fire flow. Without first establishing that the Page 16 of 29 project has a substantive impact, there is no basis upon which to require a developer to make improvements to the system. Third, the Hearing Examiner is not persuaded by the District’s claim that system improvements are necessary to support the proposed development. See Exhibit 27. The District contends that the system cannot supply the proposed development “without effecting any existing customers pressures the District serves in the area.” See id. However, the District does not describe the degree to which the project will affect the water pressure. The Hearing Examiner doubts that proof of “any effect,” no matter how small, can justify mitigation, or that there is a standard requiring mitigation based upon the existence of “any effect.” Moreover, the project engineer’s analysis demonstrates, as previously discussed, that the proposed subdivision will have no material impact on the water pressure of the system. This is the only specific evidence in this record. The District contended that adding 23 homes to the 6-inch line “that already serves customers who don’t feel that water is sufficient would be doing a disservice to the District’s existing customers...” See id. (italics added). Similarly, the District asserted that the proposed development “would surely have some effect on existing pressures that our existing customers have grown to be acceptable.” See id. (italics added). However, the Hearing Examiner cannot make decisions about the capacity or performance of a water system based only on the feelings of the existing customers. Such decisions should be based primarily upon data about the system’s capacity or condition, water pressure levels, the measurable effects of added connections, etc., not on sentiment or speculation. The only data in this record was supplied by the project engineer, and that data shows that the project’s effect on the existing system is de minimis. The District further emphasized that the existing system was not sufficient to serve this type of development in the future: There are approximately 10 to 15 more properties on this loop of Montgomery that could do the same thing with the current zoning. No matter what between the existing roads and water there would not be capable infrastructure to allow everyone to develop their land at this magnitude. See id. The Hearing Examiner is not in a position to debate this point, generally speaking. It may be that, in the future, the system will have to be upgraded before those additional connections can be allowed. That is a decision for another day. The Hearing Examiner can only consider the proposal presented to him. The potential that 10 to 15 other properties may be developed in the future is not relevant to this application. Whether or not “everyone” can develop their property to the same degree is also irrelevant. The salient question is whether, at present, there is sufficient infrastructure to support the proposed development. The Hearing Examiner answers this question in the affirmative. Adequate infrastructure exists to supply this project with water, without the need for upgrades or improvements to maintain the levels of service. Therefore, the concurrency requirement for water is satisfied. Page 17 of 29 5. The proposal is consistent with the CP designation and goals, objectives, and policies for the property. The property is designated as SFR under the CP. This designation addresses a range of residential densities from one DU/acre to six1 DUs/acre. See Staff Report, p. 8. The R-1, R-2, and R-3 districts of the SVMC are intended to implement the SFR designation. See id. The proposed subdivision is a low-density residential development that is consistent with its R-3 zoning and the SFR designation under the CP. The neighborhood is characterized by single-family dwellings on varying size lots. See Staff Report, p. 8. Pockets of denser single-family development have occurred throughout the immediate area. See id. The proposed development is consistent with the City’s residential development standards and existing single-family development in the area. See id. As a result, the project promotes the objectives of Policy LU-G1, which seeks to maintain and enhance the character and quality of life in Spokane Valley. Pedestrian and street improvements will be required along Montgomery Avenue and along the new interior public street. See Staff Report, p. 9. In addition, the project has been conditioned to meet applicable community standards. See id. Based upon these factors, the Hearing Examiner concludes that the project satisfies the objectives of Policy LU-P8 and Goals T-P6 and T-P9, which ensure that neighborhoods are served by safe and convenient motorized and non-motorized transportation routes. By developing 23 new residential lots, the project creates additional housing opportunities to meet the needs of the community. See Staff Report, p. 9. The project, therefore, promotes the intent of Goal H-G1 and H-G2, which seek to allow a broad range of housing options and enable the development of affordable housing. The proposed subdivision, as conditioned, is also consistent with the various development standards set forth in the CP. For example, the proposal includes a stormwater system designed to protect the aquifer, consistent with Goal NR-G2; connection to public water and sewer, consistent with Policy CF-P10; and coordination of new construction with various infrastructure and services, consistent with Policies CF-P13, CF-P3, and CF-P4. See Staff Report, p. 9. Considering the characteristics and design of the proposal, the Hearing Examiner agrees with the Staff that it is consistent with the CP. Therefore, this criterion is satisfied. C. Public Comments Public comments and testimony raised a number of concerns about the project. A discussion of the main issues is provided below. 1 The proposed development has a density of 6.9 dwelling units per acre, which exceeds the 6-unit limit referenced in the Staff Report. However, the development code was recently amended to allow up to 8 DUs/acre in the R-3 zone. To the extent there is a conflict between the CP and the zone code with respect to density, the zone code controls. See e.g. Cougar Mountain Associates v. King County, 111 Wn.2d 742, 757, 765 P.2d 264 (1988) (holding that the zone code prevails over inconsistent provisions in a comprehensive plan). Page 18 of 29 1) Water Pressure Mr. Vinson and Mr. Heaps both testified that there were already problems with adequate water pressure in this area. Testimony of P. Vinson & S. Heaps; see also Exhibit 14 (E-mail of J. White 3-9-2021). The neighbors contended that the addition of 23 more homes would surely exacerbate the problem. See id. The Hearing Examiner does not doubt that some homes experience fluctuations in water pressure. The project engineer acknowledged as much. Testimony of T. Whipple. This does not mean, however, that the water system cannot support the proposed project. The water model and hydraulic analysis prepared by the project engineer clearly demonstrates that the water distribution system is sufficient to serve the proposed development, without adding any improvements. See Exhibit 29. Moreover, that analysis shows that the project will have no significant or material impact on the water pressure of the system. See id. The neighbors worried that water pressures will noticeably drop if the development proceeds. The District similarly maintained that the development “would surely have some effect on existing pressures…” See Exhibit 27 (italics added). However, there is no data or analysis in this record substantiating these fears. The data provided by the project engineer states that there is “some effect” on water pressure, but that effect is within a very narrow and acceptable range. See Exhibit 29. The prediction that the development will have material impacts on water pressure is not borne out by the evidence. 2) Density and Neighborhood Character Neighborhood residents pointed out that the area is characterized by single-family residences on large lots. See e.g. Testimony of B. Weigle & F. Barela. Current residents moved to this area because of this character and aesthetic. Testimony of K. Kager. The neighboring owners often suggested that the number of houses in the development should be reduced to better match the neighborhood. Testimony of P. Vinson, K. Kager, S. Heaps, & B. Weigle. The Hearing Examiner can certainly understand why residents would strongly prefer to preserve the semi-rural aesthetic of this neighborhood. However, the area is within the Urban Growth Area (UGA) and is proper for urban densities, consistent with the Growth Management Act (GMA), the adopted zoning, and the CP. The proposal is within the adopted density range and does not otherwise transgress any of the applicable development standards. In other words, the proposal fits within the long-range plans for the area, as envisioned by the policymakers who adopted these standards. Legally, a property owner can develop his or her land consistent with the adopted rules. The Hearing Examiner does not have the authority, for example, to require a developer to reduce the density of a project in order to match the preferences of neighboring owners. The development rules are established by legislative act, and the Hearing Examiner lacks the discretion to revise those rules on a case-by-case basis. He can only interpret and apply the development standards as they are written. In this case, the proposed subdivision is consistent with the adopted standards and, therefore, should be approved. Page 19 of 29 3) Traffic and Safety Area residents also worried about the impacts of traffic from the development. See e.g. Testimony of P. Vinson, S. Heaps, & F. Barela; see also Exhibit 14 (E-mail of B. Weigle & C. Lamb 2-13-2021). The neighbors were concerned about increased traffic as well as the safety of children, walkers, and bicyclists. See e.g. Testimony of S. Heaps; see also Exhibit 14 (E-mail of P. Vinson 12-1-2020). The concerns about safety were understandable but were not substantiated with any specific evidence or information. The record contains no specific data concerning any particular risk flowing from the traffic to and from the proposed development. By the Hearing Examiner’s review, there is nothing about the design of this subdivision that creates a safety hazard. There was no expert testimony suggesting that this project creates a safety hazard. The risk associated with vehicle traffic, in general, is a societal issue, not a specific impact of this subdivision. Generalized fears about what may arise as development occurs are not a legal basis for the denial or mitigation of a project. It is also clear that the transportation system is adequate to support the proposed development. The City’s Senior Traffic Engineer reviewed the proposal and concluded that “sufficient roadway capacity exists, or is programmed to exist with future road improvements to accommodate the uses and densities” of the project. See Exhibit 9 (Certificate of Transportation Concurrency). The TGDL submitted by the Applicant’s traffic engineer further confirms this conclusion. See Exhibit 11. The Hearing Examiner concludes that there is no legal basis upon which to condition or deny this project due to traffic impacts, whether the concerns are related to capacity or safety. 4) Fencing Mr. and Mrs. White requested a condition requiring the developer to fence the south end of the development site. See Exhibit 14 (E-mail of J. White 3-9-2021). Mrs. White asked for this fence to prevent access to her property and animals. See id. The Hearing Examiner does not believe it is appropriate to require the developer to install the requested fencing. As the Staff noted, the development code does not require screening or fencing for a subdivision. See Staff Report, p. 10; see also SVMC 22.70 (Fencing, Landscaping and Screening). This proposed development does not cause any peculiar or unique impacts to the neighbors to the south. In general, a fence is not necessary to protect or buffer one low-density residential use from another. On this record, there is no justification for conditioning the proposed development on the construction of a fence along the southern border. The property owners to the south may construct a fence, consistent with any applicable fencing standards, at their own expense. The Hearing Examiner does not believe it is legally proper to require the Applicant to do so. D. Request to Delete Condition 1, Consolidated Irrigation District No. 19 The project engineer contended that Condition No. 1, as proposed by the District, should be deleted. He contended that the condition would require the developer to obtain an Page 20 of 29 easement from a third party in order to extend the water line, and that this responsibility properly lies with the water purveyor. The Hearing Examiner concludes that it is not appropriate to require either the District or the developer to obtain an easement over land owned by a third party. On this record, neither party has such easement rights. The condition may prove impossible to perform. In any case, the Hearing Examiner has already concluded that completing the Mansfield Loop is not necessary to provide service to the development. Thus, the issue is moot under the circumstances of this case. The District stated that the developer could replace the 6-inch line in Montgomery with an 8-inch line, as an alternative to the Mansfield Loop. See Exhibit 27. However, the Hearing Examiner has concluded that this condition is also unnecessary, given that this improvement will not alleviate an impact caused by the proposed subdivision. According to the data in this record, the existing 6-inch line can adequately serve this development without creating any material impacts on the existing water distribution system. Thus, there is no basis to require the line replacement as a condition of this project. The Hearing Examiner concludes that it is appropriate to revise, rather than delete Condition No. 1. The revised condition states that a water model should be prepared to show that the water distribution system is adequate to serve the development, without causing a material drop in the levels of service. Condition No. 2 will remain as originally proposed. That condition provides that a hydraulic analysis must be prepared in order to demonstrate adequate fire flow. Together, these conditions ensure that appropriate provisions are made for water and public welfare, consistent with RCW 58.17.110(2). The Hearing Examiner notes that Conditions 1 and 2 have already been addressed by the project engineer’s submission of the water model and hydraulic analysis, submitted in response to the Hearing Examiner’s request for supplemental comments. See Exhibit 29. Nonetheless, the Hearing Examiner deemed it advisable to keep these project conditions in place since this approval is for the preliminary plat. Additional, technical review may take place at the final plat stage. DECISION A. SEPA Appeal Based on the findings and conclusions above, it is the decision of the Hearing Examiner that the DNS is valid and that the Appellant lacks standing to challenge the DNS. The appeal is denied. B. Preliminary Plat Based on the findings and conclusions above, it is the decision of the Hearing Examiner to approve the proposed preliminary plat subject to the following conditions: SPOKANE VALLEY PLANNING DIVISION: Page 21 of 29 1. The approved preliminary plat shall have a maximum of 23 residential lots unless a preliminary plat alteration is approved pursuant to SVMC 20.50 (Preliminary Plat Alterations). 2. Pursuant to SVMC 20.20.050 (Prohibition Against Sale, Lease or Transfer of Property), any sale, lease, or transfer of any lot or parcel created pursuant to the SVMC that does not conform to the requirements of the preliminary plat approval or that occurs without approval, shall be considered a violation of Chapter 58.17 RCW, and shall be restrained by injunctive action and shall be illegal, as provided in Chapter 58.17 RCW. Each sale, lease, or transfer of each separate lot or parcel of land in violation of any provision of this ordinance shall be deemed a separate and distinct offense. 3. SVMC 20.20.080 (Professional Land Surveyor) requires the preparation of all preliminary and final subdivisions be made by or under the supervision of a professional land surveyor. The professional land surveyor shall certify on the final plat that it is a true and correct representation of the lands actually surveyed. A survey is required on all final plats. All surveys shall comply with the Survey Recording Act (RCW 58.09) and Survey and Land Descriptions (WAC 332-130). 4. Pursuant to SVMC 20.30.050 (Expiration of Preliminary Approval), preliminary plat approval automatically expires five years after preliminary approval is granted unless a time extension is approved for the project. If a request for an extension of time is not submitted and approved, the preliminary approval expires and the preliminary plat is null and void. 5. Pursuant to SVMC 20.30.060 (Extensions of Time), an application form and supporting data for time extension requests must be submitted to the Director at least thirty (30) calendar days prior to the expiration of the preliminary plat approval. 6. Pursuant to SVMC 20.40.030 (Filing Short Plat, Plat, or Binding Site Plan), the City of Spokane Valley shall record with the Spokane County Auditor’s Office the final plat, upon receipt of all required signatures on the face of the plat. 7. Pursuant to SVMC 20.80.040 (Recordation), all fees for recording shall be paid by the Applicant prior to recording. 8. Submit a final plat application that complies with all submittal requirements specified in SVMC 20.40. 9. The Applicant shall obtain a demolition permit from the City of Spokane Valley Permit Center and remove the two accessory structures (barn and chicken coop). The structures shall receive a demolition permit and demolition completed prior to final plat approval. 10. The proposed street name of the new public street shall be submitted to the Spokane Valley Addressing Division and Spokane Valley Fire Department (SVFD) for review and approval prior to the submittal of the final plat application and shown on the final plat map. Page 22 of 29 11. The existing residence addressed as 17504 East Montgomery Avenue shall have its address changed at the time of final plat recording to 2323 North “Public Street.” 12. The addresses shall be designated on the final plat: Lot Address Alternative Address Lot 1 2327 North “Public Street” 17504 East Montgomery Avenue Lot 2 2323 North “Public Street” Lot 3 2319 North “Public Street” Lot 4 2315 North “Public Street” Lot 5 2309 North “Public Street” Lot 6 2303 North “Public Street” Lot 7 2227 North “Public Street” Lot 8 2219 North “Public Street” Lot 9 2215 North “Public Street” Lot 10 2209 North “Public Street” Lot 11 2203 North “Public Street” Lot 12 2204 North “Public Street” Lot 13 2208 North “Public Street” Lot 14 2214 North “Public Street” Lot 15 2218 North “Public Street” Lot 16 2226 North “Public Street” Lot 17 2302 North “Public Street” Lot 18 2308 North “Public Street” Lot 19 2312 North “Public Street” Lot 20 2316 North “Public Street” Lot 21 2320 North “Public Street” Lot 22 2324 North “Public Street” Lot 23 2328 North “Public Street” 17514 East Montgomery Avenue SPOKANE VALLEY DEVELOPMENT ENGINEERING DIVISION: 1. A Professional Engineer, licensed in the State of Washington, shall prepare required engineering documents (including civil/street plans, drainage plans, drainage calculations, traffic studies, shared access driveway plans, etc.). Plans shall conform to the SVSS or as amended; the SRSM or as amended; the SVMC; and all other federal, state, and local regulations, as applicable. 2. Review of civil plans and supporting documents cannot proceed until a preliminary plat decision has been issued and an application for a Land Disturbance permit has been received. All documents (plans, reports, etc.) shall be submitted through the Building Department Permit Center located at 10210 E. Sprague Avenue. 3. Montgomery Drive is designated as a Local Access street, and frontage improvements are required per SVSS Chapter 2 and are described below. Existing utilities shall be relocated to 2 feet behind the sidewalk. a. 15 feet of asphalt width from street centerline to edge of gutter. b. 2-feet-wide Type ‘B’ curb and gutter per SVSS Std. Plan R-102. c. 10-feet-wide roadside swale per SVSS Std. Plan S-130. The Applicant shall install seed/grass in the roadside swale and maintain the swale. d. 5-feet-wide concrete sidewalk per SVSS Std. Plan R-103. Page 23 of 29 4. The following determines the ROW and border easement dedications for a Local Access street per SVSS Std. Plan R-120. All information is estimated from the Spokane County Assessor’s Office. The project Applicant is responsible for verifying all values listed below. a. Existing half ROW width is 30 feet. b. Required half ROW width is 19 feet. i. ROW dedication is not required. c. A Border Easement is required and shall extend from the ROW to the back of sidewalk. i. 2-feet-wide Border Easement dedication required. ii. Note: building setbacks begin at the edge of border easement. 5. The internal streets shall be designated and designed as local access public streets per SVSS Typical Street Section R-120. Any ROW and/or border easement dedications shall be designated on the final plat language and map. Where streets end at the plat boundary, the ROW and border easements shall continue to the plat boundary with Type III barricades installed at the end of the public street per SVSS Std. Plan R-142. The proposed hammerhead turnaround as shown on the preliminary plat map will not be permitted. 6. The proposed adjacent sidewalk on Lot 2 shall be 6 feet wide per SVSS Table 7.3, and the border easement shall extend to 2 feet behind the back of adjacent sidewalk. 7. Pursuant to SVSS 7.5.14, block lengths are limited to 600 feet in length. A Design Deviation Request for a block length exceeding 600 feet was approved on January 28, 2021. 8. A cul-de-sac per SVSS Std. Plan R-130 or a public street temporary turnaround per SVSS Std. Plan R-132 shall be provided at the south end of the new public street. If a cul-de-sac is provided, the new public street shall extend through the cul-de-sac to within 1 to 2 feet of the south plat boundary for future connectivity purposes. 9. A sight-distance analysis is required at the intersection of the new public street and Montgomery Drive per SVSS 7.6.5. Any sight obstructions located within the clearview triangles are required to be removed. 10. In accordance with the SVMC, Zoning Regulations (22.50.020 Residential Standards), all residential driveways shall be paved. Private driveways shall conform to SVSS Section 7.3.4. 11. Driveway approach design shall follow the SVSS, or as amended. 12. All stormwater facilities are to be designed per the SRSM. Linear roadside facilities, such as swales, shall be located within the ROW and/or border easements when adjacent to public streets or within a tract or easement when adjacent to a private street or driveway serving more than one lot. Non-roadside facilities such as ponds (especially consolidated ponds, which are those receiving runoff from more than one lot) shall be within a tract (see SRSM 11.2). Page 24 of 29 13. For the General Construction Notes use those in the SVSS Appendix 4A rather than those in the SRSM Appendix 3B. 14. Show all utilities and utility easements (i.e. Telephone, power, etc.). The permittee is responsible for arranging all utility adjustments, improvements, or relocations as required for completion of the project. All rigid objects shall be located out of the clear zone. The clear zone requirements can be found in the SVSS, or as amended. The permittee shall contact every utility purveyor impacted by the project and conduct the following: a. Discuss with the purveyor the proposed work including private services, utility improvements, and any relocations and adjustments as well as the costs for these activities; b. When utility relocations are required, obtain from the purveyor a written statement that they acknowledge and concur with or have alternatives for the needed work; and c. Forward a copy of the statement to Spokane Valley Development Engineering. Receipt of statements will be required prior to plan approval. 15. If sewer and/or water needs to be brought to the properties and to do this requires an Engineering design, copies of the approved sewer and water plans shall be submitted to Development Engineering. The civil plans for the project shall show the extents of pavement removal and replacement. 16. All new dry wells and other injection wells shall be registered with the Underground Injection Control program (UIC) at WSDOE prior to use and the discharge from the well(s) must comply with the ground water quality requirement (non-endangerment standard) at the top of the ground water table. Contact the UIC staff at UIC Program, WSDOE, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-6143 or go to: https://ecology.wa.gov/Regulations-Permits/Guidance-technical-assistance/Underground-injection-control-program/Register-UIC-wells-online for registration forms and further information. The City will be requiring, as part of the Project Certification Package, documentation of either WSDOE’s Rule Authorization approval of the UIC registration or documentation that the UIC registration was submitted 60 days prior to the submittal of the City project certification package for all projects with UICs that receive Public stormwater runoff. 17. A Construction Stormwater Permit shall be obtained from the WSDOE if both of the following two conditions apply: a. Construction project disturbs one or more acres of land (area is the cumulative acreage of the entire project whether in a single or in a multiphase project); and b. If there is a possibility that stormwater could run off the site during construction and into surface waters or into conveyance systems leading to surface waters of the state. Construction site operators shall apply for a permit 60 days prior to discharging stormwater. More information can be obtained from https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Stormwater-generalpermits/Construction-stormwater-permit Page 25 of 29 18. A pre-construction conference with Development Engineering is required prior to the start of construction. During this meeting, standards and submittal requirements for the Construction Certification will be given to the project engineer/inspector. 19. For construction affecting public ROW, forty-eight (48) hours prior to construction securely post a sign at each ingress to the project area. The sign(s) shall be clearly visible from the ROW and provide project construction details. See SVSS Section 9.7. 20. Permits are required for any access to or work within the ROW of the Spokane Valley roadway system. A traffic control plan shall accompany the ROW obstruction permit. 21. NOTICE - The Regional Pavement Cut Policy may prevent or limit pavement cuts in the adjacent street(s). There is a three-year moratorium on pavement cuts for newly paved streets. Please contact the City ROW inspector (720-5025) for further information. 22. The Temporary Erosion and Sediment Control (TESC) structures (such as filter fence, silt ponds, and silt traps) shall be installed prior to the start of site work and maintained throughout the duration of construction and until the site has stabilized. 23. All survey monuments shall be protected during construction. Any disturbed or damaged monuments shall be replaced prior to certification/final plat and/or release of surety. 24. Construction within the proposed public streets and easements shall be performed under the direct supervision of a licensed Washington State Professional Engineer/Land Surveyor. All work is subject to inspection by the City Senior Development Engineer or designee. 25. Upon completion of the improvements, a Construction Certification package and record drawings are required for the improvements and shall be submitted and approved prior to Final Plat approval according to SVSS Chapter 9. 26. All public improvements shall provide a Performance/Warranty Surety per SVSS Chapter 9. The City accepts Letters of Credit, Cash Savings Assignments, and Bonds for Warranty Sureties. Bonds are not accepted for Performance Sureties. 27. ROW dedication and border easements shall be designated on the final plat map. 28. Plat language will be determined at the time of final plat submittal. Contact Development Engineering after civil plan approval and/or prior to first submittal of final plat to obtain plat language. SPOKANE VALLEY FIRE DEPARTMENT 1. No structures greater than 3,600 square feet are allowed without additional review by SVFD for fire flow requirements. Page 26 of 29 2. Provide “no-parking fire lane” signs around temporary turnaround easement. 3. Addresses shall be posted so they are visible from street during and after construction. Numbers shall be a minimum 4 inches tall and contrasting to background. CONSOLIDATED IRRIGATION DISTRICT NO. 19 1. The Developer shall prepare a water model (consistent with customary and accepted engineering practices) that demonstrates, among other things, that (1) a connection to the existing water main in Montgomery will provide adequate water service for domestic purposes to the proposed development; and (2) that connection will not cause the performance of the water distribution system to drop below the applicable level of service standards, including providing adequate water pressure, for users already connected to the system. 2. A hydraulic analysis for proper fire flow shall be conducted. SPOKANE COUNTY ENVIRONMENTAL SERVICES 1. As per the development regulations/zoning code of the governing authority as amended, security shall be deposited with the SCES for the construction of the public sewer connection and facilities and for the prescribed warranty period. Security shall be in a form acceptable to the SCES and in accordance with the Spokane County Sanitary Sewer Ordinance. 2. Any water service for this project shall be provided in accordance with the Coordinated Water System Plan for Spokane County, as amended. 3. Applicant shall submit expressly to SCES “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. Prior to plan submittal, the developer is required to contact Chris Knudson, Jenn Bruner, or Colin Depner at 477-3604 to discuss the details of the sewer plans. Once submitted, the sewer plan may require revised and/or additional plat comments to be addressed. Plans may be submitted electronically to ESPlanReview@spokanecounty.org. 4. The appropriate Capital Facilities Rate (CFR) will be assigned to this development. 5. As per the development regulations/zoning code of the governing authority as amended, the dedication shall state: “Public sewers shall be constructed to provide for the connection of each parcel to the County’s system of sewerage and individual services will be provided to each lot prior to sale. Uses on properties within the project shall be required to connect to the sewer and pay applicable charges per the County Sewer Ordinance. Sewer connection permits shall be required.” Page 27 of 29 SPOKANE REGIONAL HEALTH DISTRICT 1. The final plat shall be designed as indicated on the preliminary plat of record and/or any attached sheets as noted. 2. Appropriate utility easements shall be indicated on copies of the preliminary plat of record for distribution by the Planning Department to the utility companies, Spokane Valley Engineer, and the SRHD. 3. Sewage disposal method shall be as authorized by the Director of Environmental Services, Spokane County. 4. Water service shall be coordinated through the Director of Environmental Services, Spokane County. 5. Water service shall be by an existing public water supply when approved by the Regional Engineer (Spokane), WSDOH. 6. Prior to filing the final plat, the sponsor shall demonstrate to the satisfaction of the SRHD that an adequate and potable water supply is available to each lot of the plat. 7. Prior to filing the final plat, the sponsor shall present evidence that the plat lies within the recorded service area of the water system proposed to serve the plat. 8. A public sewer system will be made available for the plat, and individual service will be provided to each lot prior to sale. Use of individual on-site sewage disposal shall not be authorized. 9. A statement shall be placed in the dedication to the effect that: “A public sewer system will be made available for the plat and individual service will be provided to each lot prior to sale. Use of individual on-site sewage disposal systems shall not be authorized.” 10. The dedicatory language on the plat shall state: “Use of private wells and water systems is prohibited.” 11. The final plat dedication shall contain the following statement: “The public water system, pursuant to the Water Plan approved by County and State health authorities, the local fire protection district, City of Spokane Valley and water purveyor, shall be installed within this subdivision, and the Applicant shall provide for individual domestic water service as well as fire protection to each lot prior to sale of each lot and prior to issuance of a building permit for each lot.” AVISTA UTILITIES 1. A 10-foot utility easement shall be dedicated along the front of Lots 1 and 23 adjacent to Montgomery Avenue and located behind any border easement area. Page 28 of 29 2. A 10-foot utility easement shall be dedicated along the front of all lots on the new public street behind the border easement area. 3. Include the following language in the plat dedication: a. Utility easements shown on the herein described plat are hereby dedicated for the use of serving utility companies for the construction, reconstruction, maintenance, protection, inspection, and operation of their respective facilities, together with the right to prohibit changes in grade over installed underground facilities; the right to trim and/or remove trees, bushes, and landscaping without compensation; and the right to prohibit structures that may interfere with the construction, reconstruction, reliability, maintenance, and safe operation of same. b. Serving Utility companies are also granted the right to install utilities across future acquisition areas or border easements. WASHINGTON STATE DEPARTMENT OF ECOLOGY 1. Proper erosion and sediment control practices shall be used on the construction site and adjacent areas to prevent upland sediments from entering surface water. Refer to the Stormwater Management Manual for Eastern Washington. SPOKANE TRIBE OF INDIANS 1. Prior to any land disturbing activities an Inadvertent Discovery Plan (IDP) shall be provided to the City by a qualified professional; or the Applicant may choose to utilize the template provided by the City of Spokane Valley. The IDP shall be kept on site during all land disturbance activity. Please contact Karen Kendall at 509-720-5026 for the template. DATED this 17th day of May, 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 29 of 29 NOTICE OF RIGHT TO APPEAL Pursuant to Chapter 17.90 of the SVMC and RCW Chapter 36.70C, the decision of the Hearing Examiner on an application for a preliminary plat and an appeal of a DNS 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 May 18, 2021, a copy of this decision will be mailed by regular mail to the Applicant, Appellant, 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 May 21, 2021. THE APPEAL CLOSING DATE FOR THE PRELIMINARY PLAT DECISION IS JUNE 11, 2021. The complete record in this matter is on file during and after the appeal period at 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.