Loading...
APP-2022-0002 - Decision After RemandPage 1 of 16 CITY OF SPOKANE VALLEY HEARING EXAMINER Re: Appeal of Administrative Decision on SHP-2022-0001 MARILYN MILLER, ET AL., Appellant, v. CITY OF SPOKANE VALLEY, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) FINDINGS, CONCLUSIONS, AND DECISION File No. APP-2022-0002 I. SUMMARY OF APPEAL AND DECISION Summary of Appeal: Ms. Marilyn Miller, on behalf of herself and a group of property owners, collectively the “Appellant,” appealed the City of Spokane Valley’s (the “City” or “COSV”) decision to approve a preliminary short plat application submitted by Tyler and Amy Scott (the “Scotts” or “Applicant”). The Scotts sought to subdivide their lot into three new lots. The Appellant contended that the approval of the preliminary short plat violated Paragraph L of the restriction on the face of the plat of Chester Hills Addition. Summary of Decision: The approval of the preliminary short plat is reversed. Lots 2 and 3 of the preliminary short plat do not meet the depth requirements of Paragraph L, and the Applicant did not obtain the approval of the homeowners in accordance with RCW 58.17.215. As a result, the COSV erred when it approved the preliminary short plat. II. PROCEDURAL BACKGROUND On August 10, 2022, the Hearing Examiner remanded SHP-2022-0001 to the City of Spokane Valley to make an administrative determination as to whether or not the preliminary short plat application of Tyler and Amy Scott violates the lot-depth requirement set forth in Paragraph L of the plat dedication of Chester Hills Addition. See Findings, Conclusions, and Decision, File No. SHP-2022-0001, August 10, 2022. On August 31, 2022, COSV issued its administrative determination on remand. COSV applied the definitions of the Spokane Valley Municipal Code (“SVMC”) in order to determine whether the proposed lots violated the lot-depth requirement set forth in Paragraph L. See Exhibit A. The COSV determined that Lots 1 and 3 do not violate Paragraph L. See id. COSV also determined that Lot 2 does not violate Paragraph L, so long as South Balfour Road is considered the front lot line of that lot. See id. On September 8, 2022, the Hearing Examiner issued an order setting a schedule for the parties to submit evidence and briefing in response to COSV’s administrative determination. See Exhibit C. Page 2 of 16 On September 22, 2022, the Appellant submitted the Appellant’s Supplemental Brief and the Supplemental Declaration of Walter O. Dale. See Exhibits D & E. That same day, the Applicant submitted the Applicants’ Responsive Submission to City of Spokane Valley’s Administrative Determination, along with the declarations of Troy Carlson and Courtney Whitten. See Exhibits F through H. On October 5, 2022, COSV submitted the City of Spokane Valley’s Reply Brief in Support of Administrative Determination. See Exhibit I. III. INCORPORATON BY REFERENCE AND EXHIBITS This decision should be read in conjunction with the Hearing Examiner’s decision remanding the matter to COSV. See Findings, Conclusions, and Decision, File No. SHP-2022-0001, August 10, 2022. The findings and conclusions set forth in that decision are hereby incorporated by reference into this decision. As set forth in the Hearing Examiner’s prior decision, the exhibits in the case include Exhibits 1 through 22. See id. Following remand, additional briefing and exhibits were submitted and are included in the record. The Hearing Examiner is also reopening the record for the limited purpose of including the relevant version of the Spokane County Code. As a result, the exhibit list is updated to include the following, additional exhibits: A City’s Administrative Determination, 08/31/22 B Appellant’s Acknowledgement of Receipt of City’s Administrative Determination, 09/01/22 C Order re: Responsive Submissions, 09/08/22 D Appellant’s Supplemental Declaration of Walt Dale, 09/21/22 E Appellant’s Supplemental Brief, 09/22/22 F Applicant’s Responsive Submission, 09/22/22 G Applicant’s Declaration of Courtney Whitney, 09/22/22 H Applicant’s Declaration of Troy Carlson, 09/22/22 I Respondent’s Responsive Submission, 10/05/22 J 1943 Spokane County Zoning Ordinance IV. MOTION TO STRIKE In support of their arguments on remand, the Appellants submitted the Supplemental Declaration of Walter O. Dale. See Exhibit D. The Applicant submitted a motion to strike portions of Mr. Dale’s supplemental declaration. See Exhibit F, p. 2. COSV joined in the Applicant’s motion. See Exhibit I, pp. 1-2. The Applicant and COSV asked the Hearing Examiner to strike the following portions of Mr. Dale’s declaration: • Paragraph 1, under “My Opinion,” page 2, approximately lines 11-15, starting with “The relevance of RCW 58.17.01…” and ending with “SHP-2022-0001 is submitted.” • Paragraph 1, under “Discussion,” page 2, approximately lines 23-31, starting with “The relevance of 58.17.01…” through the end of that page, page 3 in its entirety, Page 3 of 16 and the first full paragraph of page 4, including approximately lines 1-6, which ends with “…code definition is seriously flawed.” • Page 6, approximately lines 23-27, stating as follows: “SHP-2022-0001 is deficient in protecting the public health, safety and general welfare of the home owners in Chester Hills Addition and should be rejected by the Hearing Examiner…” As COSV and the Applicant emphasized, the purpose of the remand was two-fold, i.e. (1) to allow the COSV to issue an administrative determination as to whether the Scotts’ short-plat complied with Paragraph L of Chester Hills Addition, and (2) to provide the Appellants and the Applicant the opportunity to respond that determination. See Exhibit I, p. 2; see also Exhibit F, p. 2. The record was re-opened for that “limited purpose.” See Findings, Conclusion, and Decision, APP-2022-0001, p. 22. COSV and the Applicant contended that Mr. Dale’s comments about the purpose or intent of RCW 58.17, in particular, were non-responsive, irrelevant, and outside the scope of the remand. See Exhibit I, p. 2; see also Exhibit F, p. 3. The Hearing Examiner grants the motion to strike. The Hearing Examiner is inclined to strike the above-referenced portions of the declaration because those comments are purely in the form of arguments about public policy, not testimony on factual matters within Mr. Dale’s expertise. For example, Mr. Dale offers opinions on the expectations of homeowners, the use and enjoyment of property, the potential impact on homeowner investments, as well as the proper way to protect the “public health, safety, and welfare.” Mr. Dale’s unquestioned expertise concerns surveying of land. The Hearing Examiner will carefully consider his opinions on survey practices or methodologies, the proper calculation of lot depth, and the like in the process of rendering this decision. His broad opinions about public policy and its ultimate meaning in this case, however, are outside the scope of his expertise. In addition, as COSV and Applicant point out, those opinions are not responsive to the COSV’s determination or relevant to its analysis. V. DISCUSSION OF ARGUMENTS AND LAW 1. The definitions in the SVMC cannot control the legal interpretation of Paragraph L because the purpose or intent of a restrictive covenant cannot be determined by the terms of a later-enacted code. The Hearing Examiner remanded this matter to the COSV for an administrative determination as to whether SHP-2022-0001 violates the lot-depth requirement set forth in Paragraph L of the plat dedication of Chester Hills Addition. That covenant states as follows: L. All lots in this addition must have frontage of 100 feet for any dwelling. Any sub-divisions of any lot or lots in this addition must have a frontage of 100 feet or more and a depth of over 175 feet. See Exhibit 11.2.D (emphasis added). Consistent with the Hearing Examiner’s remand, COSV rendered an administrative determination on the matter. In its determination, COSV reiterated that the “City does not regulate depth.” See Exhibit A, p. 1. Having no specific provisions governing depth determinations, COSV turned to the definitions adopted in Appendix A of the SVMC for guidance. See id. On the basis of those definitions, COSV ultimately concluded that the proposed lots were consistent with the depth requirement in Paragraph L. See Exhibit A. Page 4 of 16 Both the Appellant and the Applicant criticized COSV’s reliance on the SVMC to interpret the meaning of Paragraph L. They point out that Chester Hills Addition was dedicated in 1951. See Exhibit F, p. 6; see also Exhibit E, p. 2. In addition, the City was not incorporated until 2003, and the SVMC was not adopted until 2004. See id. Citing to Bauman v. Turpen, the Appellant contended that “later enacted codes” cannot solely or conclusively determine the intent or purpose of a prior-enacted covenant. See Exhibit E, p. 2. The Applicant, meanwhile, maintained it was “altogether illogical” to assume that the drafters intended to apply code definitions that were enacted 50 years later. See Exhibit F, p. 6. The Hearing Examiner agrees that the SVMC does not control the interpretation of Paragraph L. As Appellant noted, the Court of Appeals in Bauman rejected the idea that later-enacted codes could define the intent or purpose of a previously enacted covenant. See Bauman v. Turpen, 139 Wn.App. 78, 86, 160 P.3d 1050 (2007). Specifically, the court concluded that building codes enacted in 1997 did not define the intent or purpose of a “one-story” covenant drafted in 1949. See Bauman, 139 Wn.App. at 86 (sustaining this conclusion as a matter of law). The Hearing Examiner believes the court’s reasoning squarely applies to this case. The covenants of Chester Hills Addition predate the Valley’s municipal code by more than 50 years. Under the circumstances, the SVMC serves as an example or guide for one possible way to interpret or apply a lot depth standard. The terms of the SVMC may be relevant or helpful, to the extent those terms are consistent with the law in effect at the time the covenants were drafted, or otherwise reflect the intent of the drafters of the covenants. However, the SVMC is not dispositive and does not control the analysis. The City’s approach was understandable, given the apparent absence of guidance on the matter. However, given the rule of Bauman, the Hearing Examiner concludes that it was erroneous to treat the definitions of the current code as controlling the interpretation of the Paragraph L. 2. COSV’s administrative determination was not tainted by improper motive or prejudicial to the Applicant. The Associate Planner’s testimony did not constitute COSV’s official interpretation of its code or Paragraph L and was not binding on COSV. The Appellant emphasized that the City’s Associate Planner testified that SHP-2022-0001 would not have been approved if the City had been required to apply the depth restrictions in Paragraph L to the application. See Exhibit E, pp. 1-2. This contradicted COSV’s determination on remand, which concluded that the proposed lots complied with the covenant’s depth requirement. The Appellant questioned this change in position, given that the terms of the SVMC have not changed. See Exhibit D, p. 2. Ultimately, the Appellant suggested that COSV’s change in position was motivated by the City’s self-interest or a desire to benefit the Applicant, to the prejudice of the Appellant. See id. The Hearing Examiner rejects the Appellant’s claims of bias or prejudice. This record contains no evidence whatsoever demonstrating that COSV was motivated by a desire to assist the Applicant or to harm the Appellant. The fact that the outcome of the administrative determination was unfavorable to the Appellant does not prove prejudice or partiality. The Hearing Examiner also notes that Mr. Palaniuk’s testimony on the depth issue was presented over the City’s objection that the City does not regulate lot depth. Under those circumstances, Mr. Palaniuk had to give his best estimate as to how depth would be determined, and to do so on the fly. The fact that his best opinions might not comport with a later, full analysis of the issue is not terribly surprising. The Hearing Examiner found Mr. Palaniuk’s testimony helpful and illustrative of the Page 5 of 16 ambiguities in making these kinds of judgments. However, the COSV’s official interpretation is properly represented by its administrative determination. Had the Hearing Examiner determined that Mr. Palaniuk’s testimony was the last word on the matter, he would not have remanded the case in the first place. 3. The purpose and intent of Paragraph L is determined by the drafters’ intent at the time it was drafted. That purpose and intent is derived from the language of the covenant, considered in context, and mindful of the surrounding circumstances. There is no legal presumption in favor of the free use of land. Washington has well-established rules for interpreting restrictive covenants. The primary goal in interpreting a restrictive covenant is to determine the drafter’s intent and the purpose of the covenant at the time it was drafted. See Wilkinson v. Chiwawa Communities Ass’n, 180 Wn.2d 241, 250, 327 P.3d 614 (2014); see also Bauman v. Turpen, 139 Wn.App. 78, 86, 160 P.3d 1050 (2007). The court examines the language of the covenant and considers the instrument in its entirety. See Wilkinson, 180 Wn.2d at 250. In determining the drafter’s intent, courts give covenant language its ordinary and common usage and will avoid construing a term in a manner that defeats its obvious meaning. See id. Washington applies the “context rule” to interpreting restrictive covenants. Under this rule, evidence of “surrounding circumstances of the original parties” is admissible “to determine the meaning of the specific words and terms” used in a covenant. See Bauman v. Turpen, 139 Wn.App. 78, 89, 160 P.3d 1050 (2007) (quoting Hollis v. Garwall, 137 Wn.2d 683, 693, 974 P.2d 836 (1999)). The Applicant acknowledges that the courts must construe restrictive covenants to uphold the drafter’s intent, and that intent should be discerned from the clear and unambiguous language of the covenant. See Exhibit F, pp. 5-6. The Applicant also agrees that a covenant may be enforced based upon requirements that are necessarily implied from its language. See id. However, the Applicant argues that Washington law requires that “any doubts regarding intent” be resolved “in favor of the free use of land.” See id., p. 6 (citing to Bersos v. Cape George Colony Club). On this basis, the Applicant insists that any question regarding the dedicators’ intent must be resolved in favor of the Applicant. See id. The Hearing Examiner rejects this contention. The Applicant cited to a 1971 decision of the Court of Appeals for the proposition that doubts must be construed in favor of the free use of land. See Bersos v. Cape George Colony Club, 4 Wn.App. 663, 665, 484 P.2d 485 (1971). Although that case may not have been expressly overruled, Washington rejected the cited rule long ago. The Washington Supreme Court in Wilkinson explained: While Washington once strictly construed covenants in favor of the free use of land, we no longer apply this rule where the dispute is between homeowners who are jointly governed by the covenants. Riss v. Angel, 131 Wn.2d 612, 621-24, 964 P.2d 669 (1997). See Wilkinson v. Chiwawa Communities Ass’n, 180 Wn.2d 241, 249-50, 327 P.3d 614 (2014); see also Viking Properties, Inc. v. Holm, 155 Wn.2d 112, 120, 118 P.3d 322 (2005) (also explaining that modern courts no longer apply the rules of strict construction against the grantor or in favor of the free use of land).1 Instead of placing “a thumb on the scales in favor of the free use of land,” the courts now focus on giving effect to the purposes intended by the covenants. 1 This case was abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019). Page 6 of 16 See Wilkinson, 180 Wn.2d at 250. In addition, the courts will place “special emphasis on arriving at an interpretation that protects the homeowners’ collective interests.” See Riss v. Angel, 131 Wn.2d 612, 623-24, 934 P.2d 669 (1997) (quoting Lakes at Mercer Island Homeowners’ Ass’n v. Witrack, 61 Wn.App. 177, 181, 810 P.2d 27 (1991)). This case concerns a dispute among homeowners who wish to subdivide their lot (the Applicant) and other homeowners who believe that proposal violates the covenants governing the subdivision (the Appellants). Under those circumstances, doubts about the meaning of restrictive covenants are not resolved in favor of the free use of land. Rather, covenants are to be interpreted based upon the drafters’ intent, based upon the language employed, considered in context, and with an understanding of the surrounding circumstances. If any doubts remain, special emphasis will be placed on an interpretation that protects the homeowners’ collective interests. The Hearing Examiner concludes that Paragraph L must be interpreted consistent with these general rules, in light of current Washington law. 4. COSV’s administrative determination is not entitled to deference because the SVMC does not control the interpretation of Paragraph L, and the local officials do not have special expertise in interpreting restrictive covenants. The Applicant contends that the Hearing Examiner should defer to the City’s administrative determination that the proposed lots satisfy the depth requirement of Paragraph L. See Exhibit F, p. 5. In particular, under the SVMC definitions, the most distant and most parallel line constitutes the rear lot line, even if that line is only a segment of the line that appears to form the rear boundary of the lot. See id. According to the Applicant, this result is logical and follows from the words used in the definition of “Lot line, rear,” in Appendix A of the SVMC. See id. In support of these arguments, the Applicant cites to the general rule that, in a doubtful case, courts give great deference to the construction of an ordinance by the officials charged with its enforcement. See id. The Hearing Examiner disagrees with the Applicant. The Hearing Examiner has already concluded that the SVMC does not control the interpretation of Paragraph L. See Part V.1. The current code may illustrate one potential way to determine lot depth, as a general proposition. See id. However, the intent or meaning of the previously established covenant does not turn on the language of a later-enacted code. See id. Given this reality, it would not make sense for the Hearing Examiner to defer to COSV’s interpretation, rather than simply weighing that position in the same manner as the other legal arguments in the case. The Applicant’s positon also seems to suffer from some inconsistency as well. The Applicant simultaneously argues that the Hearing Examiner should defer to COSV’s reliance on the SVMC to interpret Paragraph L, while elsewhere insisting that the SVMC cannot possibly determine the meaning of that covenant. The rule of deference acknowledges that when local officials regularly administer a code, they have developed expertise and practical experience in applying those codes. The principles underlying the rule do not seem appropriate to the circumstances here. For example, COSV repeatedly noted that the City does not regulate lot depth. As a result, there is no regularly administered policy or practice to guide the determination that was made on remand. Under such circumstances, the courts do not require a decision-maker to defer to an agency’s interpretation. See Cowiche Canyon Conservancy v. Bosely, 118 Wn.2d 801, 815, 828 P.2d 549 (1992) (stating that the agency’s interpretation is entitled to deference only when the agency demonstrates that it has adopted and applied an interpretation uniformly, as a matter of agency policy). Page 7 of 16 This case is also peculiar in another respect. The local officials are being required, by virtue of state statute (RCW 58.17.215), to make a determination as to whether a subdivision proposal violates the terms of a private covenant. The Hearing Examiner doubts the rule of deference would apply, under these circumstances. Local officials do not necessarily have special expertise in the area of covenant interpretation, which undermines the assertion that the Hearing Examiner must defer to COSV’s legal analysis. See Citizens for Safe Neighborhood v. Seattle, 67 Wn.App. 436, 836 P.2d 235 (1992) (stating that, in the zoning context, the fundamental rationale for deference is the special expertise of the administrative agencies; citations omitted). Under all the circumstances, the Planning Department’s administrative determination is merely a legal opinion that the Hearing Examiner is free to accept or reject, based on its merits. The Hearing Examiner concludes that he is not required to defer to the COSV’s interpretation of Paragraph L. 5. Lots 2 and 3 of the short plat violate the lot-depth requirement in Paragraph L. The legal principles for interpreting restrictive covenants, as applied to the circumstances of this case, support this conclusion. This case has placed the Hearing Examiner is a bit of a quandary. The City’s administrative determination applies definitions from the current code in order to interpret the intent of a restrictive covenant that pre-dated that code by over 50 years. As already discussed, under the relevant Washington law, the purpose or intent of this old covenant cannot be determined by a later-enacted code. Even in the absence of that case law, this seems the most compelling result. As the Applicant argued, it is hard to believe the drafters had current code definitions in mind when they wrote the covenants several decades prior. The Hearing Examiner is sympathetic to the COSV’s position given that none of the parties have presented any other source of authority describing how a rear lot line should be defined, how lot depth should be measured, etc. In the absence of any other options, COSV naturally turned to its own codes to provide some kind of framework for its decision. Nonetheless, the Hearing Examiner concluded that this approach was erroneous. See Part V.1. Under the relevant authorities, the purpose and intent of Paragraph L had to be determined by examining the factors discussed in Part V.3. The purpose of this part of the decision, then, is to apply those factors to circumstances of this case. a) The ordinary and common usage of the language of Paragraph L provides no guidance on how to resolve the controversy in this case. To discern the intent of Paragraph L, the Hearing Examiner must first consider the language of that covenant. In relevant part, the covenant states that “any subdivisions of any lot or lots” in Chester Hills Addition “must have…a depth of over 175 feet.” See Exhibit 11.2.D. The term “depth” is not defined in the covenant, and there is no language describing how to measure or calculate depth. Having no covenant definitions to review, the Hearing Examiner looks to the common and ordinary meaning of the term “depth.” The ordinary meaning of “depth,” at least as most apparently relevant here, includes “the direct linear measurement from the point of viewing, usually from front to back,”2 “the direct linear 2 Webster’s New Collegiate Dictionary, 1974, p. 305 (definition 2.b of “depth”). Page 8 of 16 measurement from front to back,”3 and “the distance from the front to the back of something.”4 While these definitions seem clear enough, they provide no genuine guidance on how to properly measure the depth of a lot. These definitions say nothing about what locations to measure from, how to determine depth when a rear line consists of segments, or what the solution is when the rear lot line is not parallel to the front line, to name some examples. The Hearing Examiner is unable to derive any clear answers from the definition of “depth.” That being the case, the Hearing Examiner next considers the instrument in its entirety, to see whether the instrument, viewed as a whole, assists in understanding the intent underlying the 175-foot depth requirement. b) The purpose and intent of Paragraph L is not apparent from an examination of the plat dedication as a whole. There is no language showing that the drafters intended to require uniformity in the designation of lot lines or the shape of the lots. The Appellant argued that the depth requirement in Paragraph L was “clearly intended to keep resultant subdivided lots uniform with surrounding existing lots.” See id. In support of this interpretation of the covenant, the Appellant referred to several other provisions of the plat dedication. Specifically, the Appellant argued that Paragraphs A, B, H, and I all suggest that the drafters intended the subdivision to have be uniform in appearance and density. See Exhibit E, p. 3. Each of these provisions, therefore, should be considered in turn. Paragraph A of the plat dedication of Chester Hills Addition states as follows: All lots in this addition shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain upon portion of this addition other than one detached single dwelling and private garage and other out buildings which may be incidental to the residential use of the said land, except for lots 1, 2, 3, 4, 5, 6, 7, and 8 in block “A” which may be used for a commercial zoning. See Exhibit 11.2.D, p. 2. The Appellant notes that Paragraph A limits the use of each lot to one single-family residence. See Exhibit E, p. 3. On that basis, the Appellant argues the drafter intended “uniformity in appearance and density.” See id. The Hearing Examiner agrees that Paragraph A limits each lot (with listed exceptions) to residential use, that each residential lot could have only one residence, and that this provision necessarily placed a cap on density. However, the fact that each lot is limited to one residence and related outbuildings does not say anything specific about the shape of lots, the number boundary of lines, how boundaries are characterized (e.g. side, rear, etc.), or the like. The fact that lots are limited to residential uses would create an expectation regarding the “appearance” of the lots, but only to ensure a “residential” character was maintained. There is no guidance or intent expressed about the shape of the lots. There is also no language calling for “uniformity” in the shape of the lots. 3 https://www.merriam-webster.com/dictionary/depth. 4 https://dictionary.cambridge.org/us/dictionary/english/depth. Page 9 of 16 Paragraph B of the plat dedication provides as follows: No residence shall be erected on any lot in this addition nearer than 50 feet from any front lot line, nor farther than 80 feet from the front lot line. Nor nearer than 25 feet from any side street line, nor nearer than 15 feet from any side lot line. No building except a detached garage or outbuildings located 100 feet or more from the front lot line shall be located nearer than 15 feet to any side lot line. See Exhibit 11.2.D, p. 2. The Appellant points out that this covenant “provides setoff guidelines for density of residences in relation to one another.” See Exhibit E, p. 3. The Hearing Examiner agrees that this covenant creates certain setback requirements for both residences and garages or other outbuildings. This does create some limitations on lot coverage and density, as well as ensuring minimum distances between structures and lot lines or, therefore, neighboring buildings. However, none of the setbacks are defined in relation to the rear lot line. In addition, none of the provisions provide any guidance on the depth or shape of lots. The Hearing Examiner believes a non-square lot of sufficient size can support a residence, garage, and an outbuilding, all while honoring the various setback limitations. In addition, the Hearing Examiner is unable to infer, from the language employed, any requirement for lots of a uniform shape. Paragraph H of the plat dedication states as follows: All buildings shall be of modern design of architecture, and all plans of buildings to be constructed in this addition shall be approved by a committee selected by the officers of Chester Hills Corporation. See Exhibit 11.2.D, p. 2. The Appellant points out that Paragraph H “ensures that all buildings adhere to the same style of architecture.” See Exhibit D, p. 3. The Hearing Examiner agrees that this suggests an intent to maintain a certain style and quality with respect to residential structures. This language does not state, nor can it be reasonably inferred, that lots must be in a particular or uniform shape. A residence can be designed to high architectural standards regardless of whether the lot is rectangular, triangular, or some other shape. Paragraph I of the plat dedication provides: Any structure erected or placed on any lot in this addition shall be completed as to the external appearance, including finished painting and shall be connected to the water, also connected to septic tank or sewer within six months from the date of commencement of construction. See Exhibit 11.2.D, p. 2. The Appellant points out that this provision prevents the erection of structures that appear unfinished. See Exhibit E, p. 3. The Hearing Examiner agrees with this general statement. However, it is difficult to see how this provisions lends support for the idea that all the lots must be the same shape, or that all rear lot lines must be drawn in a particular way, for example. This covenant concerns the appearance and completion of structures, not the subdivision of land, the drawing of boundaries, or any other related questions. Considering the instrument in its entirety means looking at the plat map as well. While most of the lots are basically rectangular, the lots do not appear to be uniform. The lots are not drawn in a grid of columns and rows, and the lots are not all the same shape. There are several lots with non- Page 10 of 16 rectangular shape and depths that may be difficult to immediately determine. For example, Lot 7 in Block B is pentagonal, with a rear lot line that is either defined as a point or contains no part that is clearly parallel to the front lot line. See Exhibit 11.2.D, p. 2. Lot 1 in Block G is a triangular lot, and thus the rear lot “line” is apparently a single point. See id. Lot 4 in Block E has four sides, but one side boundary appears to be 40 feet, creating a lot that is more triangular than square. See id. Lot 12 in Block D is also non-uniform, with a depth that may or may not be 175 feet, while fronting on two streets (thereby resulting in more than one way to calculate depth). See id. Considering the plat map as a whole, the Hearing Examiner cannot conclude that the proposed short plat lots are so incongruous as to be inconsistent the general plan or intent of the subdivision. See also Exhibit 14.15 ¶ 10 (opining that the proposed layout is consistent with the size and density of other lots in the subdivision). The plat dedication contains no rules or requirements that directly or indirectly constrain the shape of the lots. Similarly, COSV’s short plat regulations do not prohibit lots with nonlinear property lines or irregular lot shapes, so long as the size and density requirements of the zone are met. See Exhibit 14.15 ¶ 9. The subdivision itself divides the land in a way that appears driven by the convenience of development. In any case, it is very difficult to justify rejecting the Applicant’s proposed lots based only on a general desire for “uniformity.” The pattern of the subdivision is not so clear that it should be treated as an enforceable rule, in the Hearing Examiner’s view. c) Interpreting Paragraph L, within the context of the zoning code in effect at the time the covenant was drafted, demonstrates that the proposed lots violate the 175-foot depth requirement. The next question is whether the intent of Paragraph L can be determined based upon the “surrounding circumstances of the original parties.” Unfortunately, the record contains no evidence of the circumstances or the context within which the covenants were established. There is no documentation (correspondence, minutes of meetings, historical records regarding the plat, etc.) to elucidate the drafter’s intent. No testimony was introduced at the hearing on such matters, which is not surprising given the passage of time since the covenant was written. Given the paucity of evidence in this regard, COSV confined its analysis to its existing codes. However, COSV’s current code is not relevant to interpreting a covenant that was created in 1951. At the relevant time, the property was located in Spokane County. If any code is likely to assist in the interpretation of the covenant, it would be the zoning code in effect as of December 1951, the date the final plat of Chester Hills Addition was approved. The parties did not consider or provide this potentially relevant legal history. As a result, the Hearing Examiner obtained a copy of the 1943 zoning code of Spokane County, along with all amendments through 1948. See Exhibit J. To the Hearing Examiner’s understanding, there were no further amendments from 1948 through the end of 1951. As a result, the Hearing Examiner concludes that this version of the code is the one that was in effect at the time the final plat was approved and, therefore, may assist in understanding the drafter’s intent when using common terms related to subdividing land. To be clear, the zoning code reflects the legislative intent of the County. It does not necessarily represent the drafter’s intent in writing a set of private covenants. Nonetheless, the zoning code in effect at that time was the basis upon which the final plat of Chester Hills Addition was approved. That zoning code, by inference, would have been known to the drafters and likely informed their decision-making, at least with respect to commonly used terms. As a result, the Hearing Examiner concludes that the 1943 zoning code constitutes a material part of the surrounding circumstances at the time the covenants were drafted. Page 11 of 16 The 1943 zoning code includes the several provisions that should be considered. The definition section of the zoning code, which appears to apply to all zones, includes definitions of four potentially relevant terms. The term “lot” is defined, in relevant part, as follows: “Lot”: The parcel of land on which a principal building and its accessory buildings are placed or are to be placed, together with the required open spaces; or a “lot” designated as such on an officially recorded plat. … See Exhibit J, Section 2, ¶ 9, p. 3. The term “front property line” is defined as follows: “Front Property Line”: The front line as shown on the official recorded plot of the property, and as modified by any subsequent vacation, condemnation, or conveyance for public purpose. In the case of unplatted property or in case the front property line of platted property cannot be determined from the recorded plat, the secretary of the Planning Commission shall determine the front property line for the purposes of this resolution. In making such determination, the secretary of the Planning Commission shall determine the front property line for the purpose of this resolution. In making such determination, the secretary of the Planning Commission shall take into consideration the character and location of all neighboring improvements and the character of the buildings proposed to be built on the said lot and shall designate the front property line which most nearly conforms to the existing conditions of platting and/or improvements and the spirit and purpose of the zoning regulations as applied in the surrounding district. Any property owner who is dissatisfied with the determination of the secretary of the Planning Commission may appeal to the Planning Commission as elsewhere provided in this resolution. See Exhibit J, Section 2, ¶ 6, p. 3. The term “rear property line” is defined as follows: “Rear Property Line”: The property line of a lot most nearly parallel to the front property line of the same lot as defined in this resolution, except that for triangular shaped lots the rear property line shall be represented by the point of intersection of the two property lines which are not the front property line as defined in this resolution. See Exhibit J, Section 2, ¶ 12, p. 3. The code next defines “rear yard” in the following manner: “Rear Yard”: The required open space on a lot extending along the rear property line throughout the whole width of the lot. For triangular lots, the rear yard shall be the area of the lot lying within a circle having a radius equal to the depth of the required rear yard and its center at the point herein defined as the rear property line for such lots. See Exhibit J, Section 2, ¶ 13, p. 4. The 1943 zoning code also includes a set of “Regulations Relating to the Platting, Subdividing, and Dedication of Land.” See Exhibit J, p. 35. Section B of those regulations includes the following provision: Page 12 of 16 LOT SIZES. (Amended on August 25, 1943) The minimum dimensions for residence lots shall be sixty feet for width and one hundred and twenty-five feet in depth and shall contain not less than seventy-five hundred square feet, except that where extraordinary conditions arising as a result of the present war and the requirements of federal war agencies render this minimum impracticable, the Commission may permit a lesser minimum. Corner lots shall have such extra width as will permit the establishment of building lines on both streets. Where alleys are shown, the Commission may limit the depth of the lot for the purpose of preventing future alley lots or buildings or may require the establishment of building lines along the alley adequate for the conversion of such alley into a minor street. See Exhibit J, p. 38 (emphasis added). The drafter’s intent in writing a set of covenants can be inferred, in some part, from the surrounding circumstances faced by the original parties. In this case, those circumstances include the zoning code provisions that were in effect at the time the final plat was approved. This seems especially true here, given that the plat was approved based upon that zoning code, and the covenants do not separately define the salient terms. In the Hearing Examiner’s view, the 1943 zoning code is not dispositive of the drafter’s intent, but it is instructive. Considering the code provisions in context, the Hearing Examiner derives the following lessons. The 1943 zoning code includes a lot depth requirement for residential lots. Specifically, residential lots are required to have a minimum depth of 125 feet. See Exhibit J, p. 38 (addressing “lot sizes”). Unfortunately, the zoning code provides no specific guidance on how to measure or calculate lot depth. As previously discussed, “depth” is ordinarily understood to be a measurement from the front to the back of something. See Part V.5.a. But this does not provide any genuine guidance when there is more than one reasonable way to carry out such a calculation. See id. Even so, the 125-foot depth requirement is relevant to this case for two other reasons. First, in his previous decision, the Hearing Examiner concluded that Paragraph L (and other provisions in the plat dedication) constituted private covenants, rather than conditions of approval. The 125-foot depth requirement in the zoning code is 50 feet less than the covenant standard. This corroborates the conclusion that Paragraph L is a covenant rather than a condition of approval. If the depth requirement was imposed by the County, it would have set the minimum at 125 feet, per the zone code. Because the drafters of the covenants wanted larger lots and lower density, it appears, they increased the depth requirement to 175 feet. Second, the zoning code’s 125-foot depth requirement seems to undermine the Applicant’s suggestion that numerous lots in Chester Hills Addition violate Paragraph L. In support of this claim, the Applicant pointed out that “many original lots on the final plat had a depth of less than 175 feet.” See Exhibit E, p. 6-7. A review of the measurements provided on the face of the plat confirms that is true. See Exhibit 11.2.D. However, none of the lots violate the zoning code requirements for minimum depth, i.e. it appears that all the lots exceed 125 feet in depth. See id. Based upon the development standards applicable at the time, the lots satisfy the minimum depth requirement. Moreover, Paragraph L does not set the minimum depth for the “original lots,” as Applicant’s argument assumes. Paragraph L consists of two sentences. The first sentence states that “[a]ll lots in this addition” must have frontage of 100 feet for any residence. See Exhibit 11.2.D, p. 2 (emphasis added). The second sentence, however, does not apply to “all lots in this addition.” See Page 13 of 16 id. Rather, the second sentence applies to “[a]ny sub-divisions of any lot or lots in this addition.” See id. (Emphasis added.) To be clear, Paragraph L provides that any sub-division of a lot in Chester Hills Addition must have a depth of 175 feet. See id. It appears that the drafters intended to regulate the further division of lots within Chester Hills Addition by requiring that any lots so created have a minimum depth of 175 feet. The covenant thereby ensures larger lots and lower density when lots are further divided, such as through a short plat. Paragraph L regulates such acts; it does not govern the minimum depth of the original lots. The ultimate determination of the depth of a lot depends on (1) identifying the front and rear lot lines, and (2) the method employed to calculate the distance between those two lines. This would seem, on the surface, to be a relatively straightforward task. However, this appeal illustrates how difficult that task can turn out to be. COSV determined that the proposed short plat lots satisfied the 175 foot depth requirement of Paragraph L. See Exhibit A. The parties ultimately do not dispute the location of the relevant front lot lines. Therefore, COSV’s determination turns on the definitions of “lot line, rear” and “lot depth.” The SMVC definition of the rear lot line states as follows: Lot line, rear: A boundary of a lot which is most distant from and is, or is most nearly, parallel to the front lot line. See SVMC, Appendix A, Lot line, rear (emphasis added). The definition of “lot depth” provides: The mean horizontal distance between the front lot line and the rear lot line of a building lot measured at the respective midpoints of the front lot line and rear lot line within the lot boundary. See SVMC, Appendix A, Lot depth (emphasis added). The rear lot line of Lot 1 of the proposed short plat is relatively easy to identify. That line appears to be a single, unbroken line, and visually demarks the entire width at the back of that property. See Exhibit 11.2.C. The line is nearly parallel with the front line, which fronts Felt Road. See id. The parties do not appear to contest the identification of the rear lot line or depth measurement for proposed Lot 1, in any material way. Cf. Exhibit A, p. 4 with Exhibit D, p. 9, Exhibit H, p. 5. The controversy concerns the identification of the rear lot lines and subsequent depth measurements for proposed Lots 2 and 3. The City determined that the rear lot line of Lot 2 is a 27-foot segment, in the upper right-hand corner of the lot, from the perspective of a person facing the lot while standing at Balfour Road. See Exhibit A, p. 5 (segment marked L2-RL-2). This interpretation treats two other segments which appear at the “back” of the property, traversing 61 feet and 41 feet respectively, as side lot lines. See Exhibit A. With respect to Lot 3, the City determined that the rear lot line is a 39-foot segment, in the upper right-hand portion of the lot, from the perspective of a person facing the lot while standing at Balfour Road. This interpretation treats an adjoining segment of 63 feet, which an observer would likely characterize as the “back” of the property, as a side lot line. Page 14 of 16 The City’s interpretation is logical and follows from the language in the SVMC. The City’s definition states that the rear lot line is the boundary “most distant” from and parallel or “most nearly” parallel to the front lot line. While there is some troubling ambiguity5 in this definition, the rear lot line is not merely defined as a boundary roughly opposite or parallel to the front. It is the boundary line that is both most distant and parallel (or most nearly so). In addition, side lot lines are defined as including all lines that are not defined as a front line or a rear line. See SVMC, Appendix A, Lot line, side. Given that specific language, the City’s conclusion that the 27-foot and 39-foot segments of Lots 2 and 3 constitute the rear boundary lines is correct. If the City actually regulated lot depth and this case was governed by the current local code, the Hearing Examiner would be inclined to defer to the City’s formal interpretation of the SVMC’s definitions, even though the Hearing Examiner finds this identification of the rear lot lines to be counter-intuitive. The lot depth determination is not governed by the City’s current code, however. The local code that is relevant to this case is the 1943 zoning code of Spokane County. Under that zoning code, the “rear property line” is the “property line of a lot most nearly parallel to the front property line of the same lot.” See Exhibit J, Section 2, ¶ 12, p. 3. Notably, this definition does not state that the rear property line is the boundary most distant and most nearly parallel. In addition, the 1943 zoning code does not define side lot lines. So, there is no provision arguably requiring all remaining segments of a boundary to be treated as side lot lines. There is still some ambiguity to confront. It could be argued that the line “most nearly parallel” to the front are the two smaller segments of Lots 2 and 3, just as the City determined. However, the Hearing Examiner cannot accept that interpretation. Treating one smaller segment of a boundary as the “rear lot line” only makes sense because the code identifies that boundary as the most distant and most (nearly) parallel. The SVMC also reduces some of the debate by characterizing all other parts of the boundary as side lot lines. No such language appears in the code that was in effect at the time the plat of Chester Hills Addition was finalized. In addition, the Hearing Examiner finds the 1943 zoning code’s definition of “rear yard” to be instructive on this question. That code defines “rear yard” as the “required open space on a lot extending along the rear property line throughout the whole width of the lot.” See Exhibit J, Section 2, ¶ 13, p. 4 (emphasis added). If the rear property line only included the most parallel segment of the back boundary, the zoning code would not define the rear yard as extending the “whole width of the lot.” Reading the relevant provisions together, the Hearing Examiner concludes that the rear property line includes all its segments together, spanning the width of the lot. The Hearing Examiner’s conclusions regarding the 1943 code are corroborated by the testimony of the Appellant’s surveyor. For example, consistent with the zoning code in effect at the time the plat dedication was drafted, Mr. Dale testified that the entire rear boundary line is typically utilized to establish the rear yard setback line for future structures. See Exhibit D, p. 5, ll. 8-12, 11-15. 5 The entire “rear” boundary (i.e., including all segments), such as identified by Mr. Palaniuk, could be considered the most distant and most “nearly” parallel to the front, especially when contrasted to what appear to be the side lot lines (i.e., the lines more or less perpendicular to the front property line). See Exhibit 15 (further marked as Exhibit 2B and 2C) In addition, the definition of “lot depth” in the SVMC is the “mean horizontal distance.” The “mean” may merely refer to the midpoint between the two extremes of a line. See https://www.merriam-webster.com/dictionary/mean (definition 1.a). However, that may render the “mean” meaningless, since the “lot depth” is already defined as a calculation between midpoints. On the other hand, the “mean” could refer to the average computed from a range of values. See https://www.merriam-webster.com/dictionary/mean (definition 1.b). When there are multiple segments making up the rear boundary, then the proper approach may be to take several measurements to determine an average distance. This was Mr. Palaniuk’s solution to the problem, and is logical when there is more than one segment to a rear boundary and the code requires calculation of the “mean” distance. Testimony of M. Palaniuk. Page 15 of 16 Further, Mr. Dale testified that the “standard practice for the rear yard building set back is along the complete rear lot boundary line…” See Exhibit D, p. 5, ll. 14-17 (emphasis added). Having determined that the rear property line includes all segments, the next issue to address is the calculation of the lot depth. It is apparent in this record that the only way Lots 2 and 3 satisfy the depth requirement is by classifying one small segment of the rear boundary as the “rear property line.” When the whole rear boundary, as defined by the Hearing Examiner, is considered, Lots 2 and 3 do not meet the 175 feet depth requirement. Paragraph L does not provide any guidance on how to measure or calculate lot depth. There is more than one reasonable way to determine the depth. The most conservative approach would be to determine the lot depth by the point along the rear boundary that is closest to the front line. Another approach would be to measure depth from the midpoint of the front line to the midpoint of the rear line, as was suggested by Mr. Dale. A third approach would be to take multiple measurements to calculate an average (e.g., from the midpoints of each segment to a parallel point on the front line), which would then be considered the lot depth. Regardless of which of these options might be attempted, Lots 2 and 3 do not meet the 175 feet depth requirement. If the midpoint is used, Lots 2 and 3 are well under 175 feet. See Exhibit D, p. 9. If the closest point is used, the depth would be even lower. If an average figure was used, the lots would still be under 175 feet. This is true because the Applicant’s approach resulted in lots that barely exceeded 175 feet. All other points of reference, not confined to the most distant segment, are all closer to the front line. Therefore, the average figure would necessary be below 175 feet. Having said that, Mr. Dale’s midpoint calculation would likely be the most appropriate or standard approach. That being the case, Lots 2 and 3, as configured, violate the depth requirement of Paragraph L. The Applicant would certainly counter that another, equally reasonable approach is to calculate the depth based on the farthest point from the front line, or by the midpoint of the most distant and parallel line. See e.g. Exhibit H, p. 5. The Hearing Examiner disagrees with this contention, for the reasons stated previously. However, the Hearing Examiner acknowledges that there is no approach that is perfectly consistent or completely free of ambiguity. When there are doubts about an interpretation, Washington law requires the Hearing Examiner to place special emphasis on the interpretation that protects the homeowners’ collective interests. In this case, the homeowners’ collective interests favor lower density, larger lots, full rear boundaries, and rear yards that buffer adjoining ownerships. The Hearing Examiner’s interpretation favors those outcomes. Sustaining a proposal that allows lot depth to be determined by boundary segments, on balance, elevates the interests of the individual lot owner over that of the subdivision as a whole. VI. DECISION The approval of the preliminary short plat, SHP-2022-0001, is reversed. Proposed Lots 2 and 3 of the preliminary short plat violate Paragraph L of the plat dedication of Chester Hills Addition. As a result, the short plat can only be approved if the Applicant demonstrates compliance with RCW 58.17.215. In the absence of proof of such compliance, the short plat application must be denied. Because the short plat application was not accompanied by proof of compliance with RCW 58.17.215, COSV erred in approving SHP-2022-0001. Page 16 of 16 SIGNED this 21st day of November, 2022. 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 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 appeal of a Type II decision 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 November 22, 2022, a copy of this decision will be mailed by regular mail to the parties of record and by verifiable electronic mail 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 November 25, 2022. THE APPEAL CLOSING DATE FOR THE CONDITIONAL USE PERMIT DECISION IS DECEMBER 16, 2022. The complete record in this matter is on file during and after the appeal period 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.