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APP-2022-0002 - Remand DecisionPage 1 of 22 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’s”) decision to approve a preliminary short plat application submitted by Tyler and Amy Scott (the “Scotts” or the “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 Hearing Examiner remands the matter to the City of Spokane Valley for an administrative determination as to whether the short plat application violates Paragraph L of the Chester Hills Addition. The Hearing Examiner will render a final decision on the appeal following the remand. II. FINDINGS OF FACT Appellants: Jim Lutz 10012 E. 19th Avenue Spokane Valley, WA 99206 Matt & Becky Wasley 10203 E. 19th Avenue Spokane Valley, WA 99206 Wanda Kamps 1909 S. Dartmouth Road Spokane Valley, WA 99206 Sherry Little 10222 E. 19th Avenue Spokane Valley, WA 99206 Craig & Carolyn Wilkinson 2124 S. Sunrise Road Spokane Valley, WA 99206 Steve & Colleen Knutson 2222 S. Sunrise Road Spokane Valley, WA 99206 Floyd Geller 2217 S. Sunrise Road Spokane Valley, WA 99206 Marilyn & John Miller 2124 S. Herald Road Spokane Valley, WA 99206 Page 2 of 22 Kevin & Lisa McMulkin 1923 S. Balfour Boulevard Spokane Valley, WA 99206 Steve & Beth Maier 1621 S. Balfour Boulevard Spokane Valley, WA 99206 Don Maak 2622 S. Raymond Road Spokane Valley, WA 99206 Wayne R Rounseville 1621 S. Felts Road Spokane Valley, WA 99206 Erica Capri 1911 S. Balfour Boulevard Spokane Valley, WA 99206 Erica Capri 1903 S. Balfour Boulevard Spokane Valley, WA 99206 Sherry & Clark Campbell 2024 S. Balfour Boulevard Spokane Valley, WA 99206 Andy Eliason 2118 S. Balfour Boulevard Spokane Valley, WA 99206 Lezlie & Lynn Hall 2326 S. Balfour Boulevard Spokane Valley, WA 99206 Russell & Shirley Atchison 2110 S. Sunrise Road Spokane Valley, WA 99206 Brian Baldwin 2017 S. Sunrise Road Spokane Valley, WA 99206 Ann Easterly 10524 E. Chinook Road Spokane Valley, WA 99206 Les & Mary Ann Stumm 1817 S. Felts Road Spokane Valley, WA 99206 Virginia McMulkin 10419 E. 20th Avenue Spokane Valley, WA 99206 Norman Mossoni 10523 E. Chinook Road Spokane Valley, WA 99206 Kendra Tate 2414 S. Balfour Boulevard Spokane Valley, WA 99206 Represented by: Marilyn Miller 2124 S. Herald Road Spokane Valley, WA 99206 Appellant: Marilyn & John Miller 2124 S. Herald Road Spokane Valley, WA 99206 Represented by: Kyle Nolte Stamper Rubens, P.S. 720 W. Boone Avenue, Suite 200 Spokane, WA 99201 Applicant: Tyler & Amy Scott 610 N. Government Way Coeur d’Alene, ID 83814 Page 3 of 22 Represented by: Courtney Whitten & Elizabeth Tellessen Winston & Cashatt 601 W. Riverside Avenue, Suite 1900 Spokane, WA 99201 Respondent: City of Spokane Valley 10210 E. Sprague Avenue Spokane Valley, WA 99206 Represented by: Aziza Foster Menke Jackson Beyer, LLP 807 N. 39th Avenue Yakima, WA 98902 Authorizing Ordinances: SVMC Appendix B; SVMC 17.90 Date of Decision being Appealed: April 19, 2022 Date of Appeal: May 3, 2022 Hearing Date: June 23, 2022 Testimony: City of Spokane Valley Martin Palaniuk, Associate Planner City of Spokane Valley 10210 E. Sprague Avenue Spokane Valley WA 99206 Aziza Foster Menke Jackson Beyer, LLP 807 N. 39th Avenue Yakima, WA 98902 Applicant Troy Carlson Storhaug Engineering 510 E. 3rd Avenue Spokane, WA 99202 Courtney Whitten Winston & Cashatt 601 W. Riverside Avenue, Suite 1900 Spokane, WA 99201 Appellant Marilyn Miller 2124 S. Herald Road Spokane Valley, WA 99206 Kyle Nolte Stamper Rubens, P.S. 720 W. Boone Avenue, Suite 200 Spokane, WA 99201 Exhibits: 1. Appeal Application 2. City’s Notice of Appearance 3. Notice of Appeal Hearing 4. Applicant’s Notice of Potential Request for Continuance 5. City’s Response to Potential Request for Continuance Page 4 of 22 6. Appellant’s Response to Potential Request for Continuance 7. Acknowledgement of Appellant’s Response and Clarification re: Continuance 8. Appellant’s Second Response to Potential Request for Continuance 9. Appellant’s Notice of Appearance 10. Applicant’s Notice of Appearance 11. City’s Pre-Hearing Brief 11.1 Declaration of Chad Riggs 11.2 Declaration of Martin Palaniuk 11.2.A Preliminary Subdivision Application 11.2.B Determination of Completeness Review 11.2.C Preliminary Plat Map 11.2.D Final Plat of Chester Hills 11.2.E Staff Report and Notice of Decision (SHP-2022-0001) 12. Agenda for Appeal Hearing 13. Applicant’s Pre-Hearing Brief 14. Appellant’s Pre-Hearing Brief 14.1 Appeal with Exhibits A through I 14.2 Short Plat 2022-0001 14.3 Chapter 58.09 RCW Surveys, Recording 14.4 Chapter 58.17 RCW Plats, Subdivisions, Dedications 14.5 WAC 332-130 14.6 SVMC 20.20 General Provisions 14.7 SVMC 20.30 Preliminary Short Subdivisions, Subdivisions, and Binding Site Plans 14.8 SVMC 20.40 Final Short Subdivisions, Subdivisions, and Building Site Plans 14.9 SVMC 20.50 Subdivision Alterations 14.10 SVMC 20.60 Short Subdivision, Binding Site Plan Alterations 14.11 SVMC Appendix A Definitions 14.12 Appellant Photographs 14.13 Jones v Town of Hunts Point 14.14 Viking Properties Inc. v Holm 14.15 Declaration of Martin Palaniuk 14.16 Declaration of Chad Riggs 14.17 Declaration of Walter Dale 14.18 City of Spokane Valley Pre-Hearing Brief 14.19 Applicant’s Pre-Hearing Brief 15. Appellant’s Hearing Exhibits 16. Applicant’s Hearing Exhibits 17. Applicant’s Motion to Strike 18. City’s Hearing Exhibits 19. Applicant’s Communication with Storhaug re: lot depths 20. Applicant’s Post-Hearing Brief 21. City’s Post-Hearing Brief 22. Appellant’s Post-Hearing Brief Page 5 of 22 III. FINDINGS AND CONCLUSIONS A. Background Facts. On December 21, 1951, the Board of County Commissioners passed a resolution approving the Final Plat of Chester Hills Addition. See Exhibit 18. The Board’s resolution did not include or reference any terms or conditions of approval. See id. On December 31, 1951, the Final Plat of Chester Hills Addition was recorded in the Spokane County Auditor’s Office, under instrument no. 73659B. See Exhibit 11.2.D; see also Exhibit 11.2.E (Ex. A to Letter of E. Capri 3-18-2022). The plat dedication contains various terms and limitations on the use of lots within the subdivision, as set forth in Paragraphs A-O. See id. Among other things, those terms and limitations state: … E. No person of any other race than the white race shall use or occupy any building upon these premises, except this covenant shall not prevent occupancy of a domestic servant of a different race domiciled with the owner or tenant. … H. 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. … 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. M. The covenants are to run with the land and shall be binding on all parties and persons claiming under them until January 1977, and automatically extended for successive ten year periods there after, unless by vote of a majority of the then owners of the lots it is agreed to change the covenants in whole or part. N. If the parties hereto or any of them, or their heirs or assigns, shall violate or attempt to violate any of the covenants herein, any other person or persons owning any real property situated in this addition may prosecute any proceedings at law or in equity against the persons violating or attempting to violate any such covenant to restrain or prevent him or them from doing so, to recover damages or other dues for such violations nor both. O. Should anyone or more of these covenants be invalidated by judgment or court order, the other provisions not effected thereby shall never the less remain in full force and effect. See Exhibit 11.2.D (emphasis added). The Scotts own a 1.31-acre parcel of property commonly described as 1823 S. Felts Road. See Declaration of M. Palaniuk ¶ 2. The Scotts’ property1 is located in the Chester Hills Addition. See Exhibit 11.2.A. 1 The Scotts’ property is legally described as Lots 12 and 13 in Block “C” of Chester Hills Addition. See Exhibit 11.2.A (Subdivision Guarantee). However, these lots were aggregated into a single lot in 1986. Page 6 of 22 On January 7, 2022, the Scotts submitted a preliminary short plat application to the City of Spokane Valley. See Exhibit 11.2.A (Preliminary Subdivision Application). Through this application, the Scotts sought to subdivide their property into four residential lots. See id.; see also Declaration of M. Palaniuk ¶ 2. The City designated the Scotts’ application as SHP-2022-0001. See Declaration of M. Palaniuk ¶ 2. On March 4, 2022, the Scotts submitted a revised preliminary short plat application. See Declaration of M. Palaniuk ¶ 4. The revised application reduced the number of lots from four to three. See id.; see also Exhibit 11.2.C. On April 19, 2022, the City approved the Scotts’ short plat application, SHP-2022-0001. See Exhibit 11.2.E. The City determined that the application was consistent with and satisfied the zoning requirements, subdivision regulations, environmental controls, and all other design and development standards. See id., pp. 3-6. In making its decision, the City considered the objection that the City is required to enforce the “conditions of approval” on the final plat of Chester Hills Addition, consistent with the City’s prior decision for short plat no SHP-2015-0001. See id., p. 10. The City disagreed with this objection. The City explained that the prior decision on SHP-2015-0001 did not consider whether the terms on the face of the plat were private covenants, rather than plat conditions and, therefore, were not subject to enforcement by the City. See Exhibit 11.2.E, p. 10. By the time the City considered the Scotts’ application, its approach to these cases had evolved. As the City explained: In 2017 the City analyzed this issue further and determined that whether or not covenant language, when included on the face of a final plat, should be determined on a case-by-case basis depending on all the facts and circumstances of the particular property. This would then determine if the language were a “condition of approval”, which is enforceable by the City, or a “covenant” which is subject to private enforcement. See also Viking Props. Inc. v. Holm, 155 Wn.2d 112, 130 (2005) (“…City has correctly conceded that it ‘has no authority’ to enforce or invalidate restrictive covenants…”). See id. Looking to the Final Plat of Chester Hills Addition, the City noted that Paragraph M provides that the “covenants” on the plat run with the land and are binding unless changed by an appropriate vote of the property owners. See id. In addition, Paragraph N sets forth the means for private enforcement of violations of the “covenants.” See id. Based upon these two provisions, the City determined that the conditions on the face of the plat are covenants subject to private enforcement, and that the City does not have authority to enforce or invalidate them. See id. The 2015 decision, meanwhile, was based upon a different legal interpretation in a separate case. See id. The City concluded that the 2015 decision was not binding on its decision on the Scotts’ application. See id. See Exhibit 11.2.E, p. 1. Page 7 of 22 On May 3, 2022, Ms. Marilyn Miller, as the representative of a group of 33 property owners, appealed the City of Spokane Valley’s decision to approve the Short Plat. See Exhibit 1, Attachment A. In the proceedings, Mr. Nolte and Stamper Rubens represented Mrs. Miller individually. See Exhibit 9. Mrs. Miller participated in the hearing as the lay representative of the other property owners. However, Mrs. Miller confirmed at the hearing that the group of property owners joined in Mr. Nolte’s arguments on behalf of Mrs. Miller. Therefore, the Hearing Examiner will refer to Mrs. Miller and the other property owners collectively as the “Appellant.” B. Issues on Appeal. The Appellant raised a myriad of issues on appeal. However, the scope of the issues substantially narrowed2 at the time of hearing. The Appellant contends that the preliminary short plat results in the creation of two lots with a depth of less than 175 feet. See Exhibit 1, Attachment C, p. 6. This violates Paragraph L of the dedication for Chester Hills Addition. See id. According to the Appellant, pursuant to RCW 58.17.170, the City is required to enforce Paragraph L as a “term of approval” of the original plat. See Exhibit 1, Attachment B, p. 3. The Appellant also contends that, pursuant to RCW 58.17.215, the Scotts were required to submit an agreement, signed by all the property owners in Chester Hills, allowing the proposed short plat to deviate from the depth restriction set forth in Paragraph L. See id. The Appellant argues that the City erred in concluding that Paragraph L constitutes a private, restrictive covenant that cannot be enforced by the City. See Exhibit 1, Attachment B, p. 4. The Appellant contends that the City’s decision misconstrues Viking Properties, Inc. v. Holm and overlooks Jones v. Town of Hunts Point, the controlling case. See id., pp. 4-5. C. Paragraph L is a “restrictive covenant” and not a “term of approval” of the final plat of Chester Hills Addition. Therefore, the City not obligated to enforce that restriction pursuant to 58.17.170. The Appellant contends that Paragraph L is a “term of approval” of the final plat of Chester Hills Addition. See Exhibit 14, pp. 8-9. By the terms of RCW 58.17.170, a municipality is required to enforce the restrictions imposed upon a subdivision as a condition or term of approval. See id., p. 9. The Appellant insists, based upon the reasoning of Jones, that if a term appears on the face of a plat, it is a term of approval that must be enforced by the City. See id., p. 10. According to that case, there is an inference that provisions on the face of a plat are terms of approval. See id. The Appellant characterized the City’s approach as “wholly inconsistent” with Washington law. See id., p. 9. 2 The Appellant abandoned its claims concerning lot merger, compliance with the zoning code, traffic concurrency, consistency with design standards, and boundary discrepancies, and did not present argument or evidence on these questions at the hearing. The Appellant did present evidence regarding drainage problems and impacts on neighboring property. However, this evidence was expressly for the purpose of advising the City of its concerns in the event permits are issued in the future. Argument of K. Nolte. The evidence was not presented in order to demonstrate that the City committed an error in approving the Scotts’ application. See id. Thus, the drainage issue is not a part of this appeal. Page 8 of 22 The City agreed with Appellant that it must enforce conditions of plat approval pursuant to RCW 58.17.170. See Exhibit 11, p. 8. However, the City contended that Jones does not provide that all restrictions on the face of a plat are conditions of approval that must be enforced pursuant to RCW 58.17.170. See id. Moreover, the evidence can overcome the inference that restrictions on the face of a plat are “terms of approval”. Argument of A. Foster. It is also true that restrictive covenants can be found on the face of the plat. See Exhibit 11, p. 8. As a result, the City must “make a case-by-case determination as to whether a restriction on the face of a plat creates a private restrictive covenant or a term of plat approval.” See id., pp. 8-9. If the restriction is a private covenant, the City has no authority to enforce it, given the holding in Viking. See id., p. 9. In this case, the City “determined that restriction L was a restrictive covenant that the City has no authority to enforce, as opposed to a condition of plat approval.” See id., p. 8. The Applicant argues, consistent with the City, that the face of a plat may contain restrictive covenants, terms of approval, or both. See Exhibit 13, p. 5. A restrictive covenant is an enforceable promise relating to the use of land. See id. A term of approval, on the other hand, is a requirement imposed by a municipality as a condition of approving a permit or land use application. See id. The Applicant emphasized that the language of the dedication confirms the dedicator’s intent to create a set of restrictive covenants. See id. The language also includes various provisions that go beyond what a municipality would require in order to approve a subdivision. See id., p. 6. According to the Applicant, Paragraph L is a restrictive covenant, not a term of approval. See id. Enforcement of private covenant requires a private action between the parties, rather than being the responsibility of local government. See id. After considering these arguments, the Hearing Examiner concludes that Paragraph L is not a “term of approval” that the City is obligated to enforce under the subdivision statute. The Hearing Examiner reaches this conclusion for the reasons discussed below. Pursuant to RCW 58.17.170 and Jones, the City of Spokane Valley must “enforce restrictions imposed on a subdivision as a term or condition of approval.” See Jones v. Town of Hunts Point, 166 Wn.App. 452, 458, 272 P.3d 853 (2011) (emphasis added), review denied, 174 Wn.2d 1016, 281 P.3d 687 (2012). Not all restrictions appearing on the face of the plat are, by that fact alone, deemed to be conditions of approval. The terms or conditions of approval are “imposed” by the local government. They are conditions to the approval of a development permit or land use application, as the Applicant’s contend. Such conditions are governmental mandates which, unlike private covenants, cannot be released or modified by agreement among the property owners. Changing the conditions of approval would require some form of application and an approval by the local government. In short, unless Paragraph L was imposed as a condition of the County’s approval of the Chester Hills Addition, it is not a “term of approval” that must be enforced pursuant to RCW 58.17.170. The Appellant insists that the City cannot interpret a plat restriction as anything other than a “term of approval.” The Appellant claims that RCW 58.17.170 requires the City to enforce all the restrictions as terms of approval. See Exhibit 14, p. 10. In furtherance of this claim, the Appellant cites to the following language of Jones: “The inference that the restriction was a term of approval is supported by the fact that it was printed on the Page 9 of 22 face of the plat.” See Jones, 166 Wn.App. at 459. The Hearing Examiner rejects this argument. The relevant part of RCW 58.17.170 merely states that a subdivision is “governed by the terms of approval of the final plat, and the statutes, ordinances, and regulation in effect at the time of approval…” See RCW 58.17.170(3)(a). This is a statement related to vested rights. The statute does not set forth a rule or legal presumption that all provisions included in a final plat must be construed as “terms of approval” and enforced accordingly. Moreover, such a rule would not make sense in a case like this one. Here, the plat dedication includes various provisions that were not imposed by Spokane County when the Chester Hills Addition was approved in 1951. For example, the County certainly did not mandate that the lots be available only to the white race. See Exhibit 11.2.D (Paragraph E). A municipal government would have no interest or stake in whether the buildings were of “modern design of architecture,” or whether a corporate review committee had approved the designs. See Exhibit 11.2.D (Paragraph H). Nor would the local government insist, as a condition of plat approval, that the owners specify how covenants might be amended, whether damages or injunctive relief were available for covenant violations, or include a severability provision related to the covenants. See e.g. Exhibit 11.2.D (Paragraphs M, N, & O). And yet all of these provisions appear in the plat dedication for Chester Hills Addition. There is no evidence in this record that Spokane County required such provisions as a condition of plat approval. The County resolution approving the final plat, for example, does not set forth any terms or conditions. See Exhibit 18. The decision in Jones does not state that covenant language in a final plat must be construed or enforced as a “condition or term of approval.” In fact, the restrictions on the face of the plat in Jones do not include any reference to “covenants,” the amendment of covenants, remedies for covenant violations, or similar matters. See Jones v. Town of Hunts Point, 166 Wn.App. at 456-57. The plat restrictions in that case, rather, state that further subdivision is prohibited, that all lots are subject to the R-1 zoning regulations, and that that building permits cannot be issued until the Health Department approves the septic tank for each lot. See id. There were no provisions that obviously went beyond conditions that the local government would typically impose on a subdivision. Under the circumstances, it is not surprising that the Court of Appeals would state that the face of the plat supports an inference that the restrictions constitute “terms of approval.” The plat dedication in that case does not include any language suggesting that those restrictions were intended to serve any other purpose. The plat dedication of Chester Hills Addition, by contrast, states that if any of “any one or more of these covenants” are invalidated by a court, the other provisions will remain in full force and effect. See Exhibit 11.2.D (Paragraph O). In other words, the drafter of Paragraphs A-O intended that those provisions operate as restrictive covenants. The Appellant points out that a plat provision can be both a term of plat approval and a restrictive covenant. See Exhibit 14, pp. 10-11; Argument of K. Nolte. The Appellant criticizes the assumption that these two concepts are mutually exclusive. See id. The Hearing Examiner agrees. Page 10 of 22 A final plat typically includes a list of conditions imposed by the local government. There is no particular rule or standard precluding the inclusion of restrictive covenants as well. The Washington Supreme Court has acknowledged that covenants “may also be contained on the face of the subdivision plat.” See Hollis v. Garwall, 137 Wn.2d 683, 691, 974 P.2d 836 (1999). Similarly, there is no rule or standard precluding the local government from adopting or incorporating a covenant as a plat restriction. See e.g. Cape St. Mary Associates v. San Juan County, 12 Wn.App.2d 1034 (2020) (unpublished)3. The language of a final plat can operate as both a plat restriction and a restrictive covenant,4 at the same time. See Jones, 166 Wn.App. at 457-460 (treating a restriction on further subdivision as a term of approval under RCW 58.17.170 and a covenant for purposes of RCW 58.17.215). This at least tacitly suggests that the categories are not mutually exclusive, as the Appellant points out. Having said that, the fact that restrictions can be both “terms of approval” and “covenants” does not prove that Paragraph L actually is a “term of approval.” This record suggests otherwise. There is no basis to conclude that the Spokane County imposed Paragraph L as a condition to its approval of the subdivision. The only record related to the County’s approval contains no terms at all. The language of plat dedication, however, contains a myriad of provisions that are characteristic of private covenants. In addition, the plat dedication explicitly refers to its terms as “covenants,” including remedial provisions and a severability clause. The Hearing Examiner concludes that Paragraph L is not a “term of approval” that must be enforced by the City pursuant to RCW 58.17.170. Rather, Paragraph L is a “restrictive covenant.” The enforcement of Paragraph L, therefore, depends upon sources of authority other than RCW 58.17.170. D. Viking does not hold that the City lacks authority to condition or deny short plat applications that violate the restrictive covenants of a subdivision. The City relies upon Viking for the proposition that it does not have the authority or an obligation to enforce restrictive covenants, such as Paragraph L. See Exhibit 11.2.E, p. 10. This position is understandable, given the Washington Supreme Court’s comment: …the City correctly conceded that it ‘has no authority’ to enforce or invalidate restrictive covenants. See Viking Properties, Inc. v. Holm, 155 Wn.2d 112, 130, 118 P.3d 322 (2005), abrogated on other grounds, Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2020). However, the Hearing Examiner is not persuaded that the foregoing language has the effect assigned to it by the City. 3 It must be acknowledged that Cape St. Mary Associates is an unpublished decision that does not have precedential value. The Hearing Examiner, nonetheless, finds the case instructive on this narrow point. 4 The restriction against further subdivision was imposed by the Board of County Commissioners to ensure that the lots sizes were large enough to preserve the country residential atmosphere. See Jones, 166 Wn.App. at 461. As a result, it was clear why the court treated that restriction as a “term of approval.” The decision in Jones does not, by the Hearing Examiner’s review, explain why the plat language should also be considered a restrictive covenant. Nor does Jones announce a rule that all restrictions on the face of a plat are deemed restrictive covenants. As a result, the Hearing Examiner does not find Jones to be helpful with respect to identifying when plat language should be considered a covenant. Page 11 of 22 In that case, Viking Properties purchased a 1.46-acre lot within a subdivision in the City of Shoreline. See Viking, 155 Wn.2d at 117. The property was subject to a restrictive covenant providing that there could be no more than one dwelling on each ½ acre. See id., at 116. Wishing to develop its property free from this density limitation, Viking Properties brought a declaratory judgment action against the homeowners in the subdivision, seeking to invalidate the restrictive covenant. See id., at 130. The Hearing Examiner finds these circumstances to be distinguishable in material respects. Viking concerns litigation between private property owners over the validity and enforceability of a restrictive covenant. There is no indication in the case that the density limitation appeared on the face of a plat. There was no discussion as to whether the density limitation constituted a “covenant” or a “term of approval,” as that was not in controversy. The case did not concern a subdivision proposal or implicate the subdivision statutes. There was no claim that the City of Shoreline was obligated to enforce the density limitation on behalf of the defendant homeowners. In fact, the City of Shoreline was not a party to the litigation. The City’s “concession” was made in response to Viking Properties’ argument that the restrictive covenant violated public policy. See id., at 127- 131. In rejecting this claim, the Washington Supreme Court cited to the parts of the record confirming the city’s position that the covenant did not violate the city’s zoning regulations and comprehensive plan (i.e. its policies). See id., at 129-130. It appears that City representatives participated in the case as witnesses, not litigants. Under the circumstances, the Hearing Examiner agrees with the Appellant that the above-quoted language from Viking is dicta. The statement that the City lacked authority to invalidate or enforce private covenants was not essential to the Court’s holding in the case. Therefore, the statement from Viking does not constitute binding precedent. In any event, the dicta in Viking only suggests that when one homeowner sues another homeowner because of an alleged covenant violation, the City has no role or duty in that private litigation. This dicta tells us nothing about the City’s role in reviewing and approving short subdivisions or its obligations pursuant to the subdivision statutes. The City’s authority or duty, then, turns on the provisions of RCW 58.17 and the relevant case law, such as Jones. E. A short subdivision that creates new lots in an existing subdivision constitutes a plat “alteration” which must comply with RCW 58.17.215. The City contended that RCW 58.17.215 is irrelevant and inapplicable because the Scotts did not propose to “alter” a subdivision. See Exhibit 11, p. 11. According to the City, plat alterations are “changes to things established by the underlying plat, such as a request to change a road alignment or modify an easement.” See id. The Scotts application only proposes a subdivision of land, not a plat alteration. See Declaration of M. Palaniuk ¶¶ 11-12. Because the short plat application does not “modify anything established by the Chester Hills Addition plat,” the City insisted that RCW 58.17.215 has no bearing on this case. See id. The Applicant echoed the City’s position, arguing that dividing one lot into three does not constitute a “plat alteration.” See Exhibit 13, p. 4. The Applicant added that there is no authority to extend RCW 58.17.215 to short plat applications. See Exhibit 13, p. 4. Page 12 of 22 The Appellant responded that the law does not support the purported distinction between land divisions and alterations. See Exhibit 14, p. 13. The term “alteration” is not defined in the statute to have the specialized meaning attributed to it by the City. See Exhibit 14, p. 14. RCW 58.17.215 applies to the alteration of “any portion” of a subdivision. See Exhibit 14, p. 13. Dividing a single lot in an existing subdivision alters a portion of that subdivision. See id. This conclusion is consistent with the relevant cases, which hold that short plat applications are required to comply with RCW 58.17.215. See Exhibit 14, p. 14 (citing Jones and Cape St. Mary Associates). Finally, the Appellant argues that applying RCW 58.17.215 to short plats is consistent with the SVMC. See Exhibit 14, p. 15. Therefore, according to Appellant, RCW 58.17.215 applies to the Scotts’ proposal. See id. The Hearing Examiner concludes that using the short plat process to create new lots in an existing subdivision constitutes an “alteration” of that subdivision. Therefore, such proposals must comply with RCW 58.17.215. The Hearing Examiner reaches this conclusion for several reasons. 1) The City’s distinction between “plat alterations” and “divisions of land” is not supported by the terms of the subdivision statute. The language of Chapter 58.17 RCW supports the conclusion that a “division of land” qualifies as an “alteration.” RCW 58.17.215 applies to the “alteration of any subdivision or the altering of any portion thereof, except as provided in RCW 58.17.040(6).” See RCW 58.17.215 (emphasis added). Thus, alterations to any part of a subdivision must comply with RCW 58.17.215, as the Appellant states. The only express exception is described in RCW 58.17.040(6). RCW 58.17.040 lists the types of land divisions that are excluded from the subdivision rules and procedures in Chapter 58.17. See e.g. RCW 58.17.040 (cemeteries, binding site plans, condominiums, etc.). One type of land division that is excluded from the subdivision statute is a boundary line adjustment. RCW 58.17.040(6) states: The provisions of this chapter shall not apply to: … (6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site; … See RCW 58.17.040(6) (emphasis added). By its terms, the exception to RCW 58.17.215 applies only to boundary alterations that do not result in the creation of new lots. See RCW 58.17.040(6). If an alteration of boundaries creates new lots within a subdivision, the proposal is not exempt from the requirements of RCW 58.17.215. During oral argument, the City suggested that the short plat was merely adjusting the boundaries within the plat, not altering anything established by the original plat. Argument of A. Foster. The Hearing Examiner disagrees. The short plat application Page 13 of 22 divides an existing lot into three lots. The proposal revises certain boundaries of the original plat, that is true, but it also creates two additional lots in the process. The proposal does not merely adjust the location of boundaries between existing lots. As a result, the proposal does not qualify as an exception to the procedures set forth in RCW 58.17.215. It is also noteworthy that RCW 58.17.040(6) defines a boundary line adjustment as a “division” made for the “purpose of alteration” of property boundaries. In other words, a boundary line adjustment is both a “division of land” and an “alteration.” The Hearing Examiner cannot square this language with the City’s assertion that an “alteration” is separate and distinct from a “division of land.” Clearly, alterations can take the form of land divisions, of various types. There are other provisions in the subdivision statute that support the notion that a division of land qualifies as a plat alteration. For example, the provisions governing short plats provide that an owner, under limited circumstances described in the statute, may file an “alteration within the five-year period to create up to a total of four lots within the original short plat boundaries.” See RCW 58.17.060(1). Admittedly, the Scotts’ application does not concern a proposal to alter a short plat, and thus the provision does not directly bear on their proposal. However, the cited provision is relevant to the extent it acknowledges that an “alteration” may serve to “create” additional lots within a plat. In other words, the statute recognizes that a “plat alteration” can include a “division of land.” 2) The term “plat alteration” does not have a technical meaning that excludes a “division of land.” The plain meaning of the terms “alter” and “alteration” undermines the City’s narrow interpretation. The common meaning of the words “alter” and “alteration” are broad enough to include the modification of a plat by further subdivision. As previously discussed, RCW 58.17.215 applies to the “the alteration of any subdivision or the altering of any portion thereof…” However, the statute does not define the words “alter” or “alteration.” When a statute does not define a term, the courts often look to the ordinary dictionary definition to inform its plain meaning. See Hassan v. GCA Production Services, Inc., 17 Wn.App.2d 625, 638, 487 P.3d 203 (2021), review denied, 198 Wn.2d 1018, 497 P.3d 372 (2021). The word “alter” means “to make different without changing into something else.”5 Similarly, the word “alteration” means “the act or process of altering something” or “the result of changing or altering something.”6 Dividing an existing lot into three lots changes the layout (at least to the effected portion) and the density of the original plat. These changes do not transform the long plat into something else. But they do change the original scheme. Considered in context, the proposed short plat goes beyond merely adjusting the boundaries. As a result, the change is significant enough, under the statutory terms, to require compliance with RCW 58.17.215. Given the absence of definitions in the state statute, the Hearing Examiner turned to the local codes in search of guidance. To be clear, the City cannot adopt definitions 5 https://www.merriam-webster.com/dictionary/alter (definition 1). 6 https://www.merriam-webster.com/dictionary/alteration (definitions 1 & 2). Page 14 of 22 that are inconsistent with the state law or enact rules or regulations that modify state law. See e.g. Hama Hama Co. v. Shorelines Hearings Board, 85 Wn.2d 441, 448, 536 P.2d 157 (1975) (stating that agencies cannot amend statutes under the guise of interpretation). However, the City is charged to interpret and apply state law when administering plat applications. In this respect, the City’s ordinances could be viewed as the City’s formal interpretation on subdivision law and practice. See e.g. Edelman v. State ex rel. Public Disclosure Comm’n, 152 Wn.2d 584, 590, 99 P.3d 386 (2004) (stating that an agency can interpret ambiguities in a statue through the rule making process). Consulting the City ordinances, however, has not proven to be helpful on this particular issue. The SVMC does include a definition of “altered/alteration,” See SVMC, Appendix A. However, this definition was drafted to serve a different purpose, judging from its language: Altered/alteration: Any change, addition, or modification in construction or any change of occupancy from one use to another or from one division of a trade to another. See SVMC, Appendix A. This definition concerns changes to construction, occupancy, or trade. See id. This definition likely contemplates issues related to building permits or code enforcement, to name a couple examples. It is clear that the definition has no bearing on the modification of plats. The SVMC includes provisions that specifically govern the alteration of subdivisions. See SVMC 20.50.010 et seq. However, like the state statute, these provisions do no define the terms “alter” or “alteration.” See id. Under the SVMC, undefined terms are construed as defined in the Webster’s New Collegiate Dictionary. See SVMC Appendix A ¶ A(2). According to that dictionary, the term “alter” means “to make different without changing into something else.” See Webster’s New Collegiate Dictionary, 1974, p. 34 (“alter,” definition 1). The term “alteration” means “the act or process of altering,” “the state of being altered,” or “the result of altering: modification.” See id. (“Alteration,” definitions 1 & 2). These definitions are not materially different than the ones previously discussed. Thus, the same analysis applies to the local code as to the state statute. The City contends “plat alteration” has a rather discrete meaning. The City maintains that a plat alteration only includes changes to things established through the original plat approval, such as the location of easements and roads. However, the City also asserts that a “plat alteration” excludes the division of lots via short plat. The City argues this is true, even though the layout and density of a plat is also established when it is originally approved. In other words, the City believes that “alteration” or “plat alteration” has a technical, specific meaning. The municipal code supports for the idea that the narrow, technical meaning of words should be applied in appropriate cases. The municipal code states: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning. Page 15 of 22 See SVMC 17.60.020(D). The Hearing Examiner does not quarrel with this rule of construction. However, the Hearing Examiner is not convinced that the term “alteration” has the technical meaning ascribed to it by the City. Neither the state statute nor the municipal code define “alter” or “alteration” as applying to various modifications, but excluding the division of land. The City and Applicant did not cite to any statute, ordinance, regulation, or case law that construed “plat alteration” so narrowly. The rule of construction quoted above requires the use of a technical meaning when a term has “acquired a peculiar and appropriate meaning in law.” See SVMC 17.60.020(D). The Hearing Examiner is not aware of any authority suggesting that “plat alteration” has acquired the narrow, legal meaning assigned by the City. The Hearing Examiner concludes that an “alteration” of a plat, under the plain meaning of the term, includes a proposal to further subdivide property. The term “plat alteration” does not have the narrow, technical meaning ascribed by the City. 3) The Hearing Examiner is not obligated to defer to the city planner’s determination that a “plat alteration” does not include a “division of land.” The Hearing Examiner concludes that it is not proper, under the circumstances of this case, to defer to the planner’s opinion that a “plat alteration” does not include a “division of land.” The Hearing Examiner acknowledges the well-established rule that considerable judicial deference should be given to the construction of an ordinance or statute by those officials charged with its enforcement. See Citizens for Safe Neighborhood v. Seattle, 67 Wn.App 436, 440, 836 P.2d 235 (1992). The Hearing Examiner also acknowledges that Mr. Palaniuk is an experienced planner whose duties include reviewing and processing subdivisions and other land use applications. The Hearing Examiner does not question his knowledge or expertise. Nonetheless, the Hearing Examiner concludes that he should not defer to the planner’s interpretation in this instance. The Hearing Examiner has already concluded that the terms “alter” and “alteration” include the “division of land.” This conclusion is based upon various provisions of Chapter 58.17 and the common meaning of the words. This is consistent with Washington law. Clear language will be given effect. People's Org. for Wash. Energy Resources v. Utilities & Transp. Comm'n, 104 Wash.2d 798, 825, 711 P.2d 319 (1985). If a term is defined in a statute, that definition is used. See Cowiche Canyon Conservancy v. Bosely, 118 Wn.2d 801, 813, 828 P.2d 549 (1992). Absent a statutory definition, the term is generally accorded its plain and ordinary meaning unless a contrary legislative intent appears.” See id. Given the statutory language and the common meaning of the words employed, a “plat alteration” is an action that modifies a subdivision in some way. In the context of RCW 58.17.215, that action must be more substantial than the mere adjustment to the boundaries between the lots. If a modification results in the creation of a new lot, there is an “alteration” for purposes of RCW 58.17.215. And there are various provisions in the statute that acknowledge, directly or indirectly, that a division of land is a type of alteration. It is true that the terms “alter” and “alteration” are not defined in Chapter Page 16 of 22 58.17 RCW, and that requires broader examination of the statute and its language to verify the meaning of those terms. However, the mere absence of a definition for a term does not render a statute ambiguous. See Cowiche Canyon Conservancy, 118 Wn.2d at 814. When a statute is not ambiguous, no deference is due to the local official’s interpretation. See Bostain v. Food Express, Inc., 159 Wn.2d 700, 716, 153 P.3d 846 (2007), cert. denied, 552 U.S. 1040 (2007). Presumably, the City and Applicant would respond that the term “alteration” can reasonably be interpreted in more than one way and, therefore, the term is ambiguous. The Hearing Examiner does not agree. As previously stated, there is no statute, ordinance, regulation, or case law that supports a definition of “alteration” or “plat alteration” that would exclude the act of further dividing the lots within a subdivision. The plain meaning of the terms suggests otherwise. In addition, the City cites no authority for treating “plat alteration” as a term of art. The Hearing Examiner can understand why the City would draw the distinction, from an administrative or practical standpoint. The Hearing Examiner is unable to agree with this interpretation, however, based upon the language actually employed by the statute. The fact that the City can conceive of a different way to interpret the term “alteration,” does not make that term legally ambiguous. In addition, the Hearing Examiner did not find the testimony submitted by the City to be of much assistance in interpreting the statutory language. Initially, Mr. Palaniuk testified that the Scotts submitted an application for a short subdivision; that this application constituted a “division of land” within the meaning of RCW 58.17.020; and that under the SVMC, a short subdivision application is the appropriate regulatory mechanism to divide land. See Declaration of M. Palaniuk ¶¶ 11-12. There is no controversy about these statements. Mr. Palaniuk then testified that a plat alteration is not the appropriate mechanism to divide land. See Declaration of M. Palaniuk ¶¶ 12 & 14. He explained that if a proposal cannot accommodate easements or appurtenances in a plat, or the applicant seeks to modify or eliminate such encumbrances, an application for a plat alteration is required. See Declaration of M. Palaniuk ¶ 13. In such cases, “a plat alteration application pursuant to SVMC 20.50 is the appropriate application.” See id. This testimony does not explain why the term “alteration” necessarily excludes “divisions of land” for purposes of RCW 58.17.215. It is clear that the City requires a short subdivision application to accomplish a division of land, and a plat alteration application to modify or eliminate appurtenances or easements established in a plat. That is the City’s prerogative. However, the type or form of the application used to accomplish an objective is not the crux of the matter. The question is whether the proposed change to the plat is an “alteration” triggering the requirements of RCW 58.17.215, not whether the “appropriate application” has been filed in accordance with local procedures. The Hearing Examiner concludes that the City’s interpretation of the terms “alter” and “alteration” are inconsistent with the subdivision statute, for the reasons already explained. In addition, to conclude that “alteration” excludes the division of land would require an amendment to the statute to add qualifying language to make that distinction. Under such circumstances, no deference is due to the opinions of local officials. Deference is not due when an official’s interpretation conflicts with the statute. See Bostain, 159 Wn.2d at 716. And, as previously discussed, local officials cannot Page 17 of 22 amend or modify a statute in the course of rendering an interpretation. See Hama Hama Co., 85 Wn.2d at 448. 4) There is authority to apply RCW 58.17.215 to short plat applications, despite arguments to the contrary. The Applicant’s asserts that there is no authority to extend RCW 58.17.215 to short subdivisions. See Exhibit 13, p. 4. The Hearing Examiner disagrees. The statute itself provides that authority, once the plain meaning of “alteration” is understood and applied in context. In addition, the Court of Appeals’ decision in Jones undermines the Applicant’s argument. In Jones, the property owners submitted a short plat application to subdivide their 24,045-square foot lot into two roughly equal size lots. Jones, 166 Wn.App. at 454. The Town of Hunts Point would not accept the short plat application because further subdivision was prohibited by a restriction on the face of the original plat. See id. Citing to RCW 58.17.215, the court upheld the city’s position, stating that “when a proposed subdivision will violate a restrictive covenant, the applicant must obtain the approval of parties subject to the covenant before the restriction may be altered.” See id., at 459. In other words, the Court of Appeals determined that RCW 58.17.215 applies to a short subdivision application that seeks to divide a previously platted lot. F. The Hearing Examiner does not need to consider the “precedential effect” of SHP-2015-0001 because the Appellant abandoned this claim on appeal. In the Appeal Application, the Appellants asserted that the “City’s 2015 decision on SHP-2015-0001 is binding precedent on this Application.” See Exhibit 1, p. 13. As a result, the City was obligated to enforce Paragraph L as a term of plat approval and deny the Scotts’ application for a short subdivision. See id. However, at oral argument, the Appellants changed their position, stating that the 2015 decision was not being offered as controlling precedent. Argument of K. Nolte. Rather, the 2015 decision served as an example of a proper decision based on an accurate reading of the law. See id. The Appellant abandoned its argument that the prior decision had precedential effect or that the City had no choice but to deny the Scott’s application based on the reasoning of SHP-2015-0001. The Hearing Examiner believes the Appellant’s concession was proper. The principles of stare decisis have only a limited role in the administrative setting. See Kenmore MHP, LLC v. City of Kenmore, 21 Wn.App.2d 1, 16, 504 P.3d 237 (2022) (holding that stare decisis did not require the Growth Management Hearings Board to follow its prior decisions). Of course, City officials should strive for consistency in their decision-making. See id. However, the City may periodically change its views on how the law should be applied, provided there is a rational basis for doing so. In any case, the issue is no longer in controversy as the Appellants abandoned this assignment of error. G. The Hearing Examiner does not have jurisdiction to rule that Paragraph L is unenforceable against the Applicant because the homeowners allegedly failed to enforce the covenant against other homeowners. In rebuttal arguments, the Applicant contended that homeowners had failed to enforce the lot depth covenant on other owners and, therefore, had waived the right to do so Page 18 of 22 against the Applicant. Argument of C. Whitten. The Applicant submitted three recorded short plats, approved within the Chester Hills Addition, which created lots having depths less than 175 feet. See Exhibit 16. The Applicant also argued that there are lots in the Chester Hills Addition that are about the same size as the lots proposed by the Scotts, as well as lots smaller than the lots proposed by the Scotts. Argument of C. Whitten. In essence, the Applicant contends that Paragraph L is unenforceable because it has been abandoned. The theory of abandonment is one of several equitable defenses to the enforcement of a restrictive covenant. See Mountain Park Homeowners Association v. Tydings, 125 Wn.2d 337, 341-42, 883 P.2d 1383 (1994). Those equitable defenses include release, acquiescence, estoppel, and abandonment, among other things. See id. While equitable defenses are available against the enforcement of a restrictive covenant, that does not mean such defenses are available at the administrative level. Under settled law, a hearing examiner does not have authority to grant equitable remedies. See Chausee v. Snohomish County Council, 38 Wn.App. 630, 640, 689 P.2d 1084 (1984). In other words, the Hearing Examiner does not have jurisdiction to rule upon the Appellant’s abandonment claim. Even if the Hearing Examiner had authority to consider the claim, the Hearing Examiner would not be inclined to do so. The issue and evidence was presented for the first time in rebuttal arguments. The issue was not briefed by the Applicant or the other parties. Further, the Hearing Examiner does not find this record sufficient to genuinely consider whether prior violations of Paragraph L have so eroded the general plan of Chester Hills Addition as to make enforcement of the covenant “useless and inequitable.” See Mountain Park Homeowners Association, 125 Wn.2d at 342. Regardless of those concerns, this is a question that must be presented to a court of general jurisdiction. It is not properly an issue for the Hearing Examiner to decide. H. The Hearing Examiner denies the Applicant’s motion to dismiss appellants Maier, Baldwin, and Tate from this appeal. The appellants have demonstrating sufficient standing to maintain the appeal. The Appellant is a group of 33 property owners. See Exhibit 1, Attachment A. In a post- hearing reply brief, the Applicant contended that four individuals in that group did not have standing to participate in the appeal: Steve and Beth Maier; Brian Baldwin; and Kendra Tate. See Exhibit 20. As a result, the Applicant requested an order to strike those four individuals as appellants in this case. See id. Citing to SVMC 17.90.030(B) and SVMC 17.80.110(B), the Applicant made three arguments in support of the motion: (1) the appellants did not participate in the decision-making process by submitting written comments; (2) the appellants were not entitled to notice because they were not adjacent property owners; and (3) the appellants did not file a written request for a copy of the notice of application and, therefore, cannot establish standing on that basis. The Hearing Examiner denies the motion, for several reasons. The motion was raised for the first time in a post-hearing reply brief. The Applicant should have lodged its challenge to standing earlier in the proceedings, so that the issue could be adequately addressed. That aside, the motion was not supported by affidavits or any specific references to the evidence of record. The Applicant did not cite to notification or vicinity maps, tax records, testimony, or other materials to demonstrate that these appellants Page 19 of 22 were not “adjacent” property owners or within the group of owners close enough to be entitled to notice. The Applicant also did not analyze the public comment records in order to demonstrate that the appellants lacked standing. The Applicant asserted that the listed appellants lacked standing because they did not submit written comments on the proposed short plat. However, the Staff Report states that Brian Baldwin submitted a comment7 in opposition to the Scotts’ application. See Exhibit 11.2.E, p. 9. The Staff Report also points out that 68 residents in the area signed a petition in opposition to the short plat application. See Exhibit 11.2.E, pp. 9 & 141-148. The petition, which is included in the record, states that the signing parties object to the short plat because it violates the CCRs for Chester Hills Addition. See id., p. 141. This petition is signed by Brian Baldwin, Kendra Tate, and Steven and Elizabeth Maier. See id., pp. 144, 146 & 147. The petition seems, on its face, to satisfy the requirement to participate in the decision-making process via written comment. If the petition was not legally sufficient to confer standing, the Applicant should have set forth some basis for that argument. However, the Applicant did not make that argument or cite to any case law to support its position. The Hearing Examiner denies the motion to strike the listed appellants from the appeal. The motion was submitted too late in the process and was not adequately supported, factually or legally, to be properly considered. In any case, the limited evidence in this record suggests that the appellants have standing to pursue this appeal. I. This matter should be remanded to the City of Spokane Valley for an administrative determination as to whether the short plat application violates Paragraph L of the Chester Hills Addition. As discussed above, the Hearing Examiner has concluded that using the short plat process to create new lots in an existing subdivision is an “alteration” within the meaning of RCW 58.17.215. The Scotts’ proposal to divide their lot in Chester Hills Addition into three lots falls within the scope of the statute. The next question is whether, pursuant to RCW 58.17.215, the Scotts were required to obtain the agreement of all the other property owners of Chester Hills Addition in order to subdivide their lot. To answer this question, one must first look to the relevant language of RCW 58.17.215, which states as follows: If the subdivision is subject to restrictive covenants which were filed at the time of the approval of the subdivision, and the application for alteration would result in the violation of a covenant, the application shall contain an agreement signed by all parties subject to the covenants providing that the parties agree to terminate or alter the relevant covenants to accomplish the purpose of the alteration of the subdivision or portion thereof. See RCW 58.17.215 (emphasis added). 7 The Hearing Examiner acknowledges that he was unable to locate a written comment from Mr. Baldwin in the record. Even so, the Staff Report specifically states that Mr. Baldwin submitted a public comment in opposition to the proposal. Page 20 of 22 Under this provision, an agreement signed by the property owners subject to the covenants is only required if the proposed alteration would result in a violation of the covenants. As the City argued, a violation of the restrictive covenant is a condition precedent to the necessity of an agreement signed by all parties subject to the restrictive covenant. See Exhibit 11, p. 12. The Appellant argues that the Scotts’ short plat violates Paragraph L because two of the lots created by short subdivision are less than 175 feet in depth. See Exhibit 14. As a result, the Applicant is required to obtain an agreement from the other property owners before the subdivision may proceed. See id. The Appellant submitted the Declaration of Walter O. Dale, a professional land surveyor, to demonstrate that the Applicant’s depth calculations do not comply with the lot depth covenant or with proper practice. See Exhibit 14.17. The Applicant countered that the lots resulting from the short plat are at least 175 feet in depth and, therefore, there is no covenant violation. Argument of C. Whitten. The Applicants rely on the short plat prepared by Storhaug Engineering, and the testimony of their surveyor, to prove that its proposal complies with Paragraph L. See Exhibit 11.2.C; see also Testimony of T. Carlson. The Applicant emphasized that the plat language does not include definitions for determining lot depth, and that its method of calculating lot depth is reasonable. Argument of C. Whitten; see also Exhibit 20. The Applicant criticized the Appellant’s reliance on definitions found in the municipal code, given that the City did not exist at the time Chester Hills Addition was created. See id. The Applicant contends that even if the definitions of the City code are utilized, the proposed lots meet those requirements. See id. The City, meanwhile, adhered to a neutral position on this issue. The City’s codes do not include a lot depth requirement. Testimony of M. Palaniuk. The City did not make depth determinations for any of the lots in the Scotts’ short subdivision. See id. Moreover, the City did not consider Paragraph L because it concluded that the City had no authority to enforce private covenants. Argument of A. Foster. However, the City requested that the matter be remanded back to the City for an analysis and determination as to whether the proposed short plat violates Paragraph L, in the event the Hearing Examiner disagreed with the City’s approach. See id. The Hearing Examiner concludes that this matter should be remanded to the City to determine whether the short plat application violates Paragraph L. The state legislature has charged the local government to ensure that applications for plat alterations do not result in violations of existing restrictive covenants. See RCW 58.17.215. It stands to reason, then, that the City must make the initial determination as to whether a violation exists. The City did not make any lot depth determinations or consider Paragraph L when it approved the Scotts’ short plat application. The Hearing Examiner concludes this was an oversight that needs to be corrected on remand. Once the City has come to a determination on the issue, then this issue will be in the appropriate posture for further review. The Appellant or the Applicant may contend that the Hearing Examiner should just make the call. However, the record does not lend itself to determining whether there is a violation without first understanding the City’s position on this issue. The Hearing Examiner will need to review the City’s determination, and consider whether he is Page 21 of 22 obligated to defer to the opinions and interpretations of the City officials. The Hearing Examiner also finds the current record to be lacking on this issue. The Appellant’s expert stated that the Applicant’s depth measurements improperly ignored portions of the rear lot line. See Exhibit 14.17, p. 7. Based upon the measurements made by Storhaug Engineering, he further stated that “it is possible for Lot 2 to have a depth of 175 feet; however, it is not possible to achieve a configuration consistent with the SVMC whereby Lot 3 can achieve a lot depth of 175 feet.” See Exhibit 14.17, p. 7. It is not clear to the Hearing Examiner precisely how Mr. Dale arrived at this conclusion. It is also unclear whether there are standard practices for measuring depth that should be considered. The Applicant criticized the reliance on SVMC definitions given the covenant was adopted decades before the SVMC came into existence. However, the depth measurements shown on the short subdivision were drawn in accordance with the SVMC definitions. There are no other depth measurements shown. The Applicant’s expert did not present an alternative method to calculate depth, or explain how the proposed lots satisfied that methodology. Finally, the Applicant’s expert did not explain why it was proper to measure by reference to only one segment of a rear boundary. The Hearing Examiner concludes that remand is necessary in this case. This will serve to fulfill the City’s obligations under RCW 58.17.215, as well as help to clarify the issue for further review. J. The Applicant may update the short plat so that is complies with WAC 332-130. The errors and omissions identified by Appellant are not germane to this appeal. The Appellant contended that the short plat submitted by the Scotts did not comply with state regulations governing the preparation of land surveys. The Appellant’s expert listed numerous ways that the Scotts’ short plat failed to satisfy the provisions of WAC 332-130. See Exhibit 14.17, pp. 4-5. On those grounds, he opined that SHP-2022-0001 should not have been approved or accepted by the City. See id., p. 5. The Applicant did not refute Mr. Dale’s contention that the short plat did not comply with all the requirements of WAC 332-130. Rather, the Applicant argued that any technical errors or omission can be easily corrected through a conditional approval. See Exhibit 20, p. 8. The Applicant suggested that the Hearing Examiner add a project condition requiring the Applicant to correct any errors or omissions prior to filing the final plat. See id. The City added that the technical errors listed in Mr. Dale’s declaration did not provide any basis to overturn the decision approving the plat. Argument of A. Foster. Mr. Dale also admitted that the City was entitled to rely on surveyor’s certification when approving the short plat, the City noted. See id.; see also Exhibit 14.17, p. 3. Mr. Dale’s declaration demonstrates that the Scotts’ short plat does not fully comply with the technical requirements of WAC 332-130. The parties did not genuinely dispute that conclusion. However, the Hearing Examiner agrees with the City that the listed short-comings are not a proper basis for reversal of the City’s decision on the short plat. The Hearing Examiner also agrees with the Applicant that the errors or omissions can be addressed by submitting an updated short plat. The Applicant should consult with the City regarding the timing of such submission, and the City may review the updated plat to ensure the necessary corrections have been completed. Page 22 of 22 None of the technical errors or omissions are relevant to issues on appeal before the Hearing Examiner. The Hearing Examiner believes that these corrections to the short plat can be addressed outside of the appeal process. The Hearing Examiner is open, however, to adding project conditions to address this issue if appropriate or applicable, following the remand. DECISION Based on the findings and conclusions above, it is the decision of the Hearing Examiner to remand 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 limitation set forth in Paragraph L of the plat dedication of Chester Hills Addition. The Hearing Examiner hereby reopens the record in the matter, for this limited purpose. The City of the Spokane Valley shall provide the Hearing Examiner and the parties to the appeal with its written administrative determination, which shall include, at the minimum, an analysis of the issue, the conclusion(s) reached, and copies of documents or other materials (excluding the state and local codes, regulations, case law, or other primary sources of authority already available to the parties) relied upon in making the administrative determination. The parties will be provided with an opportunity to review, comment upon, and submit rebuttal information in response to the City’s administrative determination. Upon receipt of the City’s administrative determination, the Hearing Examiner will issue a schedule for the submission of responsive materials by the parties. The Hearing Examiner retains jurisdiction in order to review the administrative determination made by the City of Spokane Valley, and any responsive materials submitted by the parties. After considering that information, the Hearing Examiner will render a final decision on this appeal. The Hearing Examiner reserves the right to reopen the hearing following the submittal of the information, as appropriate. DATED this 10th day of August, 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