Hearing Examiner Decision SUB-02-10 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Application for the Preliminary Plat of Trailside )
at Coyote Rock, in the Mixed Use Center(MUC) )
Zoning District; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Applicant: Coyote Rock, LLC ) AND DECISION
File No. SUB-02-10 )
L SUMMARY OF DECISION
Hearing Matter: Application for a preliminary plat, in the MUC zoning district.
Summary of Decision: Return preliminary plat application to applicant for modification or
correction; based on a revised delineation of the ordinary high water mark (OHWM) of the
Spokane River located north of the site; and based on the effect of the 200-shoreline setback for
subdivisions required by the City Shoreline Master Program in the Pastoral Area on the design of
the preliminary plat, measured from the revised location of the OHWM.
II. FINDINGS OF FACT
Procedural Background
1. The application seeks approval of the preliminary plat of Trailside at Coyote Rock, to
subdivide approximately 2.8 acres of land ("site") into 13 lots for single-family dwellings; in the
Mixed Use Center(MUC) zoning district.
2. The site is located north of and adjacent to Coyote Rock Drive, approximately 400 feet
northeast of the intersection of Rivercrest Drive and Coyote Rock Drive; in Spokane Valley,
Washington.
3. The site consists of County Assessor's tax parcel no. 45044.1530, and the westerly portion
of tax parcel 45045.1604; and is legally described on the preliminary plat map of record.
4. The applicant is Coyote Rock, LLC; which has a mailing address of 1950 W. Bellerive Lane,
Suite 108, Coeur d'Alene, ID 83814. The site owner is Neighborhood, Inc.; which has a mailing
address of 1950 W. Bellerive Lane, Suite 107, Coeur d'Alene, ID 83814.
5. On December 2, 2010, the applicant submitted a complete application for the preliminary
plat to the City Community Development Department("Department"). On January 27, 2011, the
applicant submitted a revised preliminary plat map, consisting of two (2) plan sheets; which is
considered the preliminary plat map of record.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 1
6. On February 4, 2011, the Department issued a Determination of Nonsignif cane (DNS) for
the application, pursuant to Chapter 21.20 of the Spokane Valley Municipal Code (SVMC). The
DNS was not appealed.
7. On March 24, 2011, the Hearing Examiner held a public hearing on the application_ The
notice requirements for the public hearing were met.
8. The following persons testified at the public hearing:
Micki Harnois, Associate Planner Scott Kuhta, PIanning Manager
City Community Development Department City Community Development Department
11707 E. Sprague Avenue, Suite 106 11707 E. Sprague Avenue, Suite 106
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Cliff Mort JoAnn Marvicsin
1950 Bellerive Lane 11608 E. Empire Ave.
Coeur d'Alene, ID 83814 Spokane Valley, WA 99206
Randy Abrahamson Jaime Short
P.O. Box 100 Washington State Department of Ecology
Wellpinit, WA 99040 4601 N. Monroe Street
Spokane, WA 99205
9. On March 24, 2011, at 4:56 p.m., Jeremy Sikes of the Washington State Department of
Ecology (DOE) notified the Department that on the afternoon after the public hearing, he and
other DOE personnel inspected the shoreline of the Spokane River north of the site, and found
two (2) areas where the ordinary high water mark (OHWM) of the river appeared to be
significantly landward of where it is depicted on the preliminary plat map. Sikes advised that
relocation of the OHWM in such areas would render several of the lots in the preliminary plat
non-buildable, under the regulations of the City Shoreline Master Program for the Pastoral Area.
See email dated 3-24-11 from Jeremy Sikes to Micki Harnois.
10. On March 31, 2011, the Department notified the Hearing Examiner of the potential
discrepancy in the OHWM; and recommended that the Examiner consider reopening the hearing
to determine whether the OHWM is in a different location than illustrated on the preliminary plat
map, after seeking input from the affected parties. See letter dated 3-31-11 from Kathy McClung
to Mike Dempsey.
11. On April 19, 2011, representatives for the applicant and DOE conducted a site inspection of
the Spokane River north of the site Jeremy Sikes of DOE; and Larry Dawes, a wildlife biologist
retained by the applicant; walked the bank of the river north of the site, and placed pin flags at
regular intervals where the vegetation and soils appeared to correspond to the OHWM. The
location of the apparent OHWM, in the areas where DOE had previously noted a discrepancy, was
found to be substantially similar to where Jeremy Sikes had estimated it to be on March 24, 2011.
The applicant agreed to promptly survey the location of the apparent OHWM, and depict it on a
revised map. See email dated 4-20-11 from Jeremy Sikes to Mike Dempsey, letter dated 7-6-11
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 2
from Larry Dawes, email dated 5-4-11 from Scott Kuhta to Mike Connelly, and testimony of
Jeremy Sikes.
12. On May 11, 2011, the applicant notified the Hearing Examiner that an impasse had been
reached with DOE regarding the location of the OHWM of the river in the disputed areas. See
letter dated 5-11-11 from Charles Lempesis to Michael Dempsey.
13. On May 11, 2011, the Hearing Examiner reopened the hearing to consider the OHWM issue,
pursuant to the Hearing Examiner Scheduling Rules and Rules of Conduct adopted under the
SVMC. A hearing date of July 6, 2011 was established, based on the availability of the
applicant's representatives.
14. On May 26, 2011, the Hearing Examiner mailed a Notice of Reopened Hearing to DOE, the
applicant, the Department and other parties of record who appeared at the March 24, 2011
hearing; in order to consider the OHWM issue.
15. On July 6, 2011, the Hearing Examiner held a continued hearing on the OHWM issue. The
following persons testified at the continued hearing:
Jeremy Sikes Charles Lempesis
Washington State Department of Ecology Attorney at Law
4601 N. Monroe Street 201 W. 7th Avenue
Spokane, WA 99205 Post Falls, ID 83854
Drew Dittman -
3909 N. Schreiber Way
Coeur d'Alene, ID 83815
16. The Examiner conducted a site visit on July 6, 2011, immediately after the hearing; and also
on July 13, 2011. This included observations of the bank of the river north of the site, where the
location of the OHWM is under dispute.
17. The Hearing Examiner heard the application pursuant to SVMC Chapter 17.80, Chapter 18.20
and Title 20; and the Hearing Examiner Scheduling Rules and Rules of Conduct, codified in
Appendix B of the Uniform Development Code (UDC), a part of the SVMC.
18. The Hearing Examiner takes notice of the City of Spokane Valley Comprehensive Plan,
SVMC, Spokane County Shoreline Master Program (as adopted by reference by City), Spokane
County Standards for Road and Sewer Construction (as adopted by reference by City), and other
applicable development regulations; and prior land use decisions for the site and neighboring Iand.
Items in Record
19. Exhibits 1-20 were submitted at the hearing session held on March 24, 2011. Five (5)
additional exhibits were submitted at the hearing session held on July 6, 2011, but were
erroneously numbered as Exhibits "14-19". Such exhibits have been renumbered as Exhibits "21-
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 3
26", respectively. All exhibits were submitted by the Department; except for Exhibits 20, and 22-
26 submitted by the applicant.
20. The following exhibits were offered and admitted into the record at the public hearing
sessions held on March 24 and July 6, 2011:
Exhibit 1: Vicinity map
Exhibit 2: Zoning map
Exhibit 3: Comprehensive Plan map
Exhibit 4: 2009 aerial map
Exhibit 5: Application submittal documents
Exhibit 6: Preliminary plat map of record
Exhibit 7: Determination of completeness
Exhibit 8: Notice of application
Exhibit 9: SEPA determination
Exhibit 10: SEPA checklist
Exhibit 11: Certificate of transportation concurrency
Exhibit 12: Notice of public hearing documents
Exhibit 13: Agency comments
Exhibit 14: Power point presentation of Staff Report and recommendation to Hearing Examiner
Exhibit 15: WA State Parks and Recreation continents, dated March 22, 2011
Exhibit 16: Spokane Tribe of Indians comments, dated March 23, 2011
Exhibit 17: WA State Department of Ecology comments, dated March 21 and March 23, 2011
Exhibit 18: Record of survey recorded on March 1, 2011
Exhibit 19: Supplement to Staff Report, dated March 24, 2011
Exhibit 20: Drawing of proposed access to Centennial Trail, and future drive access to
community park
Exhibit 21: Power point presentation by Department for reopened hearing
Exhibit 22: Power point presentation by applicant, re OHWM issue
Exhibit 23: Letter("written testimony") from Larry Dawes dated July 6,2011
Exhibit 24n Letter dated March 17, 2008 from Clifford Mort to Michael Maher of State
Department of Ecology, and associated emails
Exhibit 25: Photo of survey marker, and associated emails dated July 5, 2011
Exhibit 26: FEMA floodplain maps for Spokane River
21. The record includes the electronic recording of the March 24, 2011 and July 6, 2011 hearing
sessions; the documents in the application file at the time of the July 6 session, including the
exhibits submitted at the March 24 session; the exhibits submitted at the July 6 session; I-Iearing
Examiner Exhibit#1 referenced below; and the items taken notice of by the Hearing Examiner.
Description of Site. Preliminary Plat
22. The site is approximately 2.8 acres in size, irregular in shape, and undeveloped except for a
damaged chain link fence located along the north boundary.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 4
23. The site is relatively flat in topography; except for an approximately 30% cut slope that
extends lengthwise through the middle of the site, slopes down to the north, and creates an
elevation difference of approximately 10-15 feet. The site slopes down at a more moderate grade
northerly of the steep slope, toward the north boundary of the site. See preliminary plat map.
24. The portion of the site lying above the steep slope on the site has been graded and cleared of
vegetation. The un-graded portion of the site is vegetated with native grasses, and scattered native
trees and shrubs. See environmental checklist, and 2009 aerial photo of site.
25. Lot I of the preliminary plat is approximately 22,000 square feet in size. Lots 2-13 range
from 7,430 to 9,470 square feet in size.
26. The preliminary plat map illustrates a meandering line labeled "200'setbackfrom shoreline"
extending southwesterly through Lots 1-7 of the preliminary plat. The map also depicts a
boundary Iine representing the most easterly extension on the site of the final plat of Grandview
Acres, recorded in 1908; which line extends northwesterly through Lots 6-7 of the preliminary
plat.
27. The preliminary plat map illustrates the proposed extension of water and sewer stubs from
the southerly ends of Lots 2-13 to public water and sewer lines installed in the adjacent Coyote
Rock Drive.
28. The environmental checklist submitted with the application advises that no work is
anticipated within the 200-foot shoreline area depicted on the preliminary plat map; except that a
dock for Lot 1 of the preliminary plat, which abuts the river, will be proposed through a separate
permit.
29. The environmental checklist advises that all existing vegetation on the site located outside
the 200-foot shoreline jurisdiction will be removed, no filling or graded of the site is planned by
the applicant, and individual site/lot grading will be performed by builders at the time of home
construction.
30. The environmental checklist states that 2-story residences are planned on the site, at a
maximum building height of 30 feet.
Land Use Desi nations for Site and Area. Sun•oundiniz Conditions
31. The applicant previously extended and/or improved Coyote Rock Drive, Rivercrest Drive,
and Lockwood Street and Pit Street; north of Empire Avenue; as public streets. Such streets are
fully improved with pavement, curbs, separated sidewalks, gutters, planting strips, street trees,
lighting, border easements and utilities.
32. The City Arterial Street Plan designates Empire Way and Cement Road in the area as
Collector Arterials. Trent Road (SR-290) and Pines Road (SR-27) are multi-lane state highways
in the area. Pines Road extends southerly from Trent Road, opposite the intersection of Cement
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 5
Road and Trent Road. Upriver Drive, north of the Spokane River, is a County Urban Minor
Arterial.
33. The site, and neighboring land located between Trent Avenue and the Spokane River, are
designated in the Mixed Use Center category of the Comprehensive Plan and zoned MUC; except
for a 31-acre parcel of land that abuts the south and west sides of the river, north and east of the
site. The 31-acre parcel is designated in the Park/Open Space category of the Comprehensive
PIan, and zoned Park/Open Space (P/OS).
34. The site owner owns the east portion of tax parcel no. 45045.1604, which abuts the site on
the east; and three (3) parcels of land that lie south of such adjoining land and/or southeast of the
site. Such additional land is undeveloped. Spokane County has constructed a public sewer lift
station along the east side of Coyote Rock Drive, approximately 800 east of the site,
35. In 2006, the Department approved boundary line adjustments for various lots owned by the
site owner in the Grandview Acres plat, recorded in 1908. This resulted in the configuration of 29
shoreline lots located directly west of the site, for a distance of one-half(1/2) mile; and a shoreline
lot and upland lot occupying the west portion of the site, in the Grandview Acres plat area. See
decision in File No. BLA-18-06, and County Assessor's map for area.
36. The site owner is in the process of developing the 29 shoreline lots to the west for single-
family homes, along a private road that the site owner extended west of the intersection of Coyote
Rock Drive and Lockwood Street.
37. On March 18, 2010, the Hearing Examiner approved the preliminary plat of Rivercrest at
Coyote Rocks; to subdivide 11 acres of land lying directly south and southeast of the site, across
Coyote Rock Drive, into 51 lots for single-family dwellings and a 2,6-acre "remainder parcel".
See decision in File No, SUB-03-09. The preliminary plat was finalized on November 8, 2010,
and is being developed with single-family homes.
38. The I'and lying south and southwest of the site, along Empire Avenue, generally consists of
single-family homes on lots ranging from 10,000 square feet to over one (1) acre in size. The land
lying southeast of the site across Coyote Rock Drive and Pit Street, north of Empire Avenue,
consists primarily of industrial uses.
39. The 31-acre parcel of land Iying directly north and northeast of the site consists of
undeveloped parkland owned by the City. The Spokane Centennial Trail, a regional public trail
system having both paved and soft surfaces, extends through the parcel, north and northeast of the
site; and extends over the Spokane River on a pedestrian bridge, north of the west portion of the
site.
40. The portion of the 31-acre parcel lying north of the site is heavily vegetated with native
trees, shrubs and grasses. See preliminary plat map.
41. The Centennial Trail continues along the north side of the Spokane River, west of the
pedestrian bridge, through State parkland. A trailhead and parking area for the trail are found
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 6
northeast of the bridge, and access Upriver Drive. The State Parks and Recreation Commission
("State Parks") owns and manages the trail facility situated on the 31-acre parcel owned by the
City, through a cooperative agreement with the City.
42. The land lying north of the Spokane River in the area is situated in unincorporated Spokane
County, and designated outside the County Urban Growth Area (UGA). Plantes Ferry Park, a
large regional county park containing numerous athletic fields, is located east of the Spokane
River; less than one-half(1/2) mile northeast of the site. Mirabeau Park, a large developed City
park, is situated approximately two (2) miles south of the site.
43. The critical areas regulated by the City under SVMC Chapter 21.40 are identified and
illustrated on the critical areas maps contained in the Comprehensive Plan, and are also displayed
on critical areas maps found on the City's website.
44. The City critical areas priority wildlife habitat map designates the Spokane River as a"DNR
Type S water", pursuant to the critical area provisions of the SVMC and WAC Chapter 22216-
030. Such water type has a maximum riparian management zone of 130 feet under the critical
area provisions of the SVMC and WAC Chapter 222-30. See Map 8.3 of Comprehensive Plan,
and text and Table 21.40-9 referenced in SVMC 21.40.030(D)
45. The City critical areas priority wildlife habitat map designates Urban Natural Open Space
(UNOS) habitat along the Spokane River in the area. The habitat extends between the site and the
river; and through the northerly portion of the site, where it appears to correspond to the native
vegetation located on and below the steep slope on the site. See Map 8.3 of Comprehensive Plan.
46. The City critical areas wetland map identifies a wetland along the south side of the Spokane
River, at varying distances parallel to and northwesterly of Lots 10-13 of the preliminary plat. See
Map 8.1 of Comprehensive Map; and DNR Streams and Wetland Map adopted effective 5-27-09
by City Ordinance No. 09-008, and posted on City website.
47. The possible wetland identified above was not referenced or mentioned in the application
file, or the documents and testimony submitted at the public hearing; but is disclosed in the
SVMC and Comprehensive Plan, which documents the Hearing Examiner took notice of at the
March 24, 2011 public hearing session.
48. The possible wetland appears to range varying distances of 200 feet or less from the lots
proposed in the east portion of the preliminary plat. See enlargement of portion of DNR Streams
and Wetland Map showing wetland, referenced above and hereby marked as Hearing Examiner
Exhibit# 1; County Assessor's map for area; and preliminary plat map.
49. The federal Flood Insurance Rate Map (FIRM) adopted by the City on July 6, 2010 appears
to designate the extreme northwest portion of Lot 1 of the preliminary plat in a "Zone AE"; i.e. a
mapped "area of special flood hazard", or "100-year floodplain". See Exhibit 26, page 6 of
environmental checklist, preliminary plat map, and SVMC Chapter 21.30.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 7
50. The City shoreline map identifies the shoreline area on and adjacent to the site in the
Pastoral Area. See colorized shoreline map in file, Map 8.6 of Comprehensive Plan, and shoreline
map on City website.
51. Pursuant to SVMC 21.50.010, the City adopted the version of the Spokane County Shoreline
Master Program that was in effect on May 2, 2002 as the City Shoreline Master Program. The
County Shoreline Master Program took effect on January 15, 1975.
52. Section III on page 4-5 of the Shoreline Master Program adopts the various shoreline area
designations delineated on the City shoreline map. Subsection 3.2 of Section III lists three (3)
criteria that prevail over such designations, in determining the shoreline area designation for
certain properties or locations. This includes the following relevant criteria:
"1) All shoreline areas within subdivisions or plats receiving preliminary
approval by December 31, 1974 shall be designated to the Rural Area where
such properties have not been designated Urban or Rural on the map."
53. The west portion of the site, west of Stegner Street extended north, is located in the
Grandview Acres final plat, recorded in 1908.
54. On September 22, 2006, the Department issued a grading permit for approximately 50 acres
of land that included the site; and adjoining land owned by the current site owner to the west,
south and east. This included the proposed excavation of approximately 456,000 cubic yards of
material, and the filling of approximately 426,400 cubic yards of material.
55. The review of the grading permit included the issuance of a Mitigated Determination of
Nonsignificance (MDNS) for the proposed grading; removal of large quantities of waste from the
site and the site owner's adjoining land to the south and east; and development of roads, utilities,
30 single-family homes, and 275-285 condominium/apartments units; in the 50-acre area,
56. The MDNS required the establishment of a 75-foot riparian setback from the OHWM of
the Spokane River in the shoreline area of the 50-acre area, pursuant to the critical areas
provisions of the SVMC in place at the time. The MDNS also required the preparation of a
habitat management plan (HMP) for the riparian corridor located along the river. See p. 3-5 of
decision in File No. SDP-01-06.
57. On June 5, 2007, the I-Tearing Examiner approved a shoreline substantial development
permit ("SDP") for the shoreline portion of the 50-acre area. The permit imposed various
conditions of approval that affect development of the current site. See decision in File No. SDP-
01-06.
58. The Hearing Examiner's decision in File No. SDP-01-06 found that the shoreline area of the
site and the adjoining land owned by the current site owner, located in the final plat of Grandview
Acres, was designated in the Rural Area of the Shoreline Master Program; based on the
application of subsection 3.2 on page 4-5 of the Shoreline Master Program
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 8
59. On September 25, 2007, the Hearing Examiner approved a rezone of 37 acres of the land,
consisting of the site and the site owner's adjoining land lying east of Lockwood Street
(extended); from Mining (MZ) to Urban Residential-22 (UR-22), under the now expired City
Interim Zoning Code. See decision in File No. REZ-04-07.
60. On October 28, 2007, the City adopted extensive revisions to the City's zoning, subdivision
and other development regulations, as codified in the UDC (SVMC Titles 17-24; and adopted
new zoning maps for all the land in the City, to implement the new zones contained in the
revised UDC.
61. The land use action taken by the City on October 28, 2007 reclassified the zoning of the site
and neighboring land to the MUC district; except for the 31-acre parcel located north and east of
the site along the river, which was reclassified to the P/OS district.
Concerns expressed reEardine Preliminary Plat
62. JaAnn Marvicsin, the owner of an approximately 10,000-square foot lot improved with a
single-family residence located 850 feet southwest of the site, along the south side of Empire
Avenue, expressed opposition to or concerns regarding the project. See parcel information in file.
The concerns expressed by Marvicsin included congestion and safety concerns associated with
increased traffic from the project, and other housing planned by the site owner, along Lockwood
Street and Empire Avenue; the lack of curb and sidewalks along such streets, jeopardizing the
safety of children walking to school in the area; the narrowness and lack of curbs and sidewalk
along Lockwood Street, in conjunction with abutting owners parking their vehicles along both
sides of such street, resulting in loss of fire access, congestion, and safety concerns for children
waiting for school busses at the corners on Lockwood Street; and the propriety of the boundary
line adjustment approved in 2006 for the west portion of the site, and the 29 shoreline lots located
west of the site.
63. The Spokane Tribe of Indians expressed concerns regarding potential damage to Indian
cultural resources that night be present on the site; requested that any tribal artifacts or cultural
resources found on the site during construction be conserved and protected; and expressed a desire
that the tribal history associated with the area be memorialized by the applicant in the
development of the site, and/or the future access provided to the Spokane Centennial Trail from
the site owner's property. See testimony of Randy Abrahamson, and letter dated 3-23-11 from
Randy Abrahamson to Micki Harnois.
64. DOE contended at the March 24, 2011 hearing session that the entire site should be
considered to be in the Pastoral Area of the City Shoreline Master Program, and subject to the
restriction in the Master Program for the Pastoral Area that prohibits the platting of a residential
subdivision within 200 feet of the OHWM. See testimony of Jaime Short.
65. DOE contended at the July 6, 2011 hearing session that portions of the OHWM of the
Spokane River lying north of certain portions of the site were in different locations than illustrated
on the preliminary plat map. See testimony of Jeremy Sikes.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 9
66. The Washington State Department of Fish and Wildlife (WDFW) submitted a letter on
January 24, 2011 expressing concern that State Parks, and the City Parks and Recreation
Department (City Parks"), had not been notified of the project; and advising that the preliminary
plat map erroneously identified the land lying north of the site as belonging to State Parks instead
of the City; the riparian and shoreline habitat on and northerly of the site needed to be protected
from damage by development and the future owners of lots in the project; and access to the
adjacent City parkland and the Centennial Trail needed to be Iimited to one (1) access point. See
letter dated 1-24-11 from Karin Divens.
67. State Parks submitted a letter on March 22, 2011 advising that the boundary of the site
adjacent to the City parkland, which contained the Spokane Centennial Trail, needed to be
surveyed and marked by a licensed professional, the boundary needed to be professionally fenced
to prevent trespassing, illegal dumping and uncontrolled trail access; and the applicant needed to
obtain an easement from State Parks for a single point of access to the trail, See letter dated 3-22-
011 from Mark Schultz.
68. The Staff Report identified the inconsistency of Lots 1-6 of the preliminary plat with the
minimum average lot width to average lot depth ratio required in a residential subdivision by
SVMC 20.20.090(B)(3)(c); and with the open space requirement of the MUC district for
developments with residential components, set forth in SVMC 19.60.070(B)(3).
69. A supplement to the Staff Report, submitted by the Department at the March 24, 2011
hearing session, recommended that the depth of Lots 1-6 of the preliminary plat not have to be
reduced to meet the lot width to depth ratio specified in SVMC 20.20.090(B)(3)(c). See Exhibit
19.
Applicable Policies of Comprehensive Plan
70. The Mixed Use Center designation of the Comprehensive Plan contemplates the
development of a vertical or horizontal mixture of different land use types; employment uses such
as office, retail and/or lodging; higher density residential uses; and some community or cultural
facilities. Differing Iand uses would be developed through a coherent, approved plan of
development; with compatibility ensured through a design integrating transportation systems,
pedestrian ways, open areas or courtyards, and common focal points or amenities. See p. 19 of
Comprehensive Plan.
71. Policies LUP-9.1 and LUP-9.2 of the Comprehensive Plan apply to the Mixed Use Center
category, and are set forth in the Staff Report. This includes contemplation of a variety of housing
types including apartments, condominiums, town houses, two-family dwellings and single-family
dwellings on small lots; and public/quasi-public uses and/or open space.
72. Policy LUP-2.1 encourages a variety of housing types in designated Mixed-use areas. Policy
LUP-2.2 recommends that design and performance standards be used to achieve integration in
Mixed-use developments; and focus on scale, appearance and compatibility.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 10
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73. Policy LUP-2.4 recommends that residential development be designed to provide privacy
and common open space, with open space areas proportionate to the size of the development,
74. Policy LUP-2.4 recommends that special development techniques such as zero Iot lines, lot
size averaging and PUDs be considered in single-family areas, provided they result in residential
development that is consistent with the quality and character of residential development.
75. Policy LUP-2.3 encourages the development of transportation routes and facilities to serve
residential neighborhoods; with special attention be given to walking, biking and transit uses.
76. Policy LUP-I.5 encourages the development of parks and dedication of open space in and
adjacent to residential areas, with open space dedication proportionate to the size of the
development.
77. Policies LUP-1.1 and LUP-1.2 recommend maintaining and protecting existing and future
residential neighborhoods, and protecting residential areas from the impacts of adjoining higher
intensity uses and/or non-residential areas through developing and enforcing the City's land use
regulations and joint planning.
78. Section 8.5 of the Comprehensive Plan sets forth the 2002 version of the Spokane County
Shoreline Master Program adopted by the City. Section 8.6 of the Comprehensive Plan contains
various policies that are protective of designated wetlands, priority wildlife habitat, geo-hazard
areas, floodplains, surface water and the Spokane Valley/Rathdrum Prairie Aquifer.
79. Policy PRP-4.1 recommends striving to develop a network of trails and bikeways that will
interconnect population centers, community facilities, work places, neighborhoods, recreational
opportunities, and natural green spaces.
80. The Staff Report sets forth other relevant policies of the Comprehensive Plan, analyzed the
consistency of the project with the policies listed, and generally found the project to be consistent
with such policies.
Compliance with MUC Zoning District and Subdivision Requirements of SVMC
81. The MUC district permits single-family, duplex, multifamily, townhouse and congregate
dwellings; and a broad range of commercial, recreational and institutional uses. See SVMC
Chapter 19.120.
82. The MUC district requires minimum front and flanking street yard setbacks of 20 feet. See
SVMC 19.60.070. The MUC district, apparently by oversight, does not specify minimum lot size,
lot depth, lot width, rear or side yard setback standards; or maximum building height standards;
for residential uses or lots, Conunercial developments in the MUC district are subject to a 50-foot
maximum building height, and 20-foot minimum rear yard and side yard setbacks. See SVMC
19.60.070, and Table 19.60-1 under SVMC 19.60.010.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 11
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83. The MUC district requires projects with residential components of 10 or more new dwelling
units to provide 210 square feet of open space per dwelling unit, unless located within 1,300 feet
of a "public park". SVMC 19.60.070.B.3. Such open space must conform to the requirements of
SVMC 19.40.020.E, and may be reduced for improvements as provided in such regulation.
84. The definition of"park, public" in Appendix A of the UDC includes, in pertinent part, a
"...site designated or developed for recreational use by the public, including...outdoor facilities
such as...areas and trails for hikers, equestrians, bicyclists... ".
85. The site abuts City parkland developed with the Spokane Centennial Trail; a regional public
trail system reserved for non-motorized travel including walkers, wheel-chair, bicyclists and
equestrians. Accordingly, the open space requirement of SVMC 19.60.070.B.3 does not apply to
the preliminary plat.
86. The applicant contended that the residential lot standards of the expired UR-22 zone, which
formerly applied to the site, should be used to review the preliminary plat. The UR-22 zone, and
the subdivision regulations of the SVMC in effect prior to October 28, 2007, contained no average
lot width to average lot depth ratio for residential lots in a subdivision, or open space requirements
for residential subdivisions located outside a PUD. See testimony of Cliff Mort.
87. The applicant noted that the preliminary plat of Rivercrest at Coyote Rocks; approved in the
MUC district by the Hearing Examiner on March 18, 2010, and receiving final plat approval in
November of 2010; contains lots having an average width less than three (3) times their average
length. See testimony of Cliff Mort, and File No. SUB-03-09.
88. The Department recommended at the public hearing that the development standards of the
MF-2 district, the most similar zone in the current SVMC to the expired UR-22 zone, be used as a
guide in reviewing the preliminary plat; absent specific development standards for residential
development in the MUC district.
89. The Department noted that the MF-2 district provides for a minimum lot width of 20 feet,
and a minimum lot depth of 80 feet; and that lots meeting such minimum standards would have an
average width less than three (3) times their average depth. However, a 20-foot by 80-foot lot is
allowed in the MF-2 district, provided it is not located in a subdivision or short subdivision. See
testimony of Scott Kuhta, and SVMC 20.20.090(B)((3)(c).
90. The MF-2 district imposes a 10% gross area open space requirement for residential
subdivisions. This standard can be more onerous for a residential subdivision to comply with than
the open space requirement of the MUC district; which requires that 210 square feet of open space
be reserved per dwelling unit, for subdivisions with 10 or more new dwelling units and lying more
than 1,300 feet from a public park. See SVMC 19.40.020, Table 19.40-1 and subsection E.
91. RCW 58.17.033 requires a preliminary plat to be considered under the subdivision, zoning
and other development regulations in place at the time the application was submitted as complete.
The MUC district was the zone applicable to the current application at the time it was submitted
as complete on December 2, 2010, not the MF-2 district or the expired UR-22 zone.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 12
92. To the extent the MUC district provides standards for the development of residential uses in
a subdivision, including a minimum front yard/flanking yard setbacks, such standards should be
applied to the current application.
93. The residential lot standards of the MF-2 district may serve as a guide for reviewing the
design of preliminary plats proposed in the MUC district; to ensure that a subdivision for single-
family dwellings in the MUC district provides adequate setbacks of residences from adjoining
land uses, and residences do not overwhelm adjoining land uses inside and outside the subdivision
in teens of height and lot coverage. The MUC district has no side yard, rear yard, building height
or building coverage standards for residential land uses.
94. Lot 1 of the preliminary plat has an average depth that is roughly 80 feet longer than three
(3) times its average width. Lots 2-6 have average depths that average 2-22 feet more than three
(3)times their respective average widths.
95. The March 24, 2011 supplement to the Staff Report, referenced above, recommends that the
depths of Lots 1-6 of the preliminary plat not have to be reduced to meet the minimum average lot
width to depth ratio specified in the SVMC. In support of such recommendation, the Department
noted that Lot 1 is subject to a 75-foot riparian buffer setback measured from the OHWM of the
river; the topography of Lots 1-6, north of the steep slope extending through such lots, inhibits
development on and north of the slope; and Policy 2 for the Rural Area, on page 3-7 of the City
Shoreline Master Program, recommends that residential structures inside the 200-foot shoreline
area be kept as far from the water's edge as possible. See Exhibit 19.
96. SVMC 19.140.010(0), together with approval criteria listed in SVMC 19.140.020 and the
procedure outlined in SVMC 19.140.030, authorizes the Department to grant an application for an
administrative exception to lot width requirements of 10% or greater. The applicant could request
an administrative exception to allow a deviation from the 1:3 minimum average lot width to lot
depth ratio for Lots 1-6 of the preliminary plat, or apply for a lot width variance from the Hearing
Examiner regarding such Iots.
97. The Hearing Examiner's decision approving the preliminary plat of Rivercrest at Coyote
Rocks, dated March 18, 2010 in File No. SUB-03-09, does not address application of the 1:3
minimum average lot width to lot depth ratio to the design of such project.
98. A few of the 51 lots in the final plat of Rivercrest at Coyote Rock appear to not meet the
minimum average lot width to lot depth ratio of SVMC 20.20.090(B)(3)(c). See preliminary plat
map of record for current project. However, this discrepancy does not provide a basis for
excusing the current preliminary plat from complying with the ratio; or obtaining an
administrative exception or variance to avoid compliance with such standard.
99. The Staff Report otherwise provides a thorough and accurate analysis of the consistency of
the preliminary plat with the requirements for approving new subdivisions set forth in Sections
20.20,090 and 20.20.100 of the SVMC; and properly found the project to be consistent with such
requirements, subject to resolution of the average lot width to lot depth ratio.
HE Findings, Conclusions and Decision File No, SUB-02-10 Page 13
Compliance with City Concurrency and Infrastructure Requirements.Environmental Impacts
100. The SVMC requires direct concurrency only for public sewer, public water and
transportation. Direct concurrency is not required for schools, parks, police, fire or other items of
public infi-astructure and services. See SVMC Chapter 22.20.
101. The County Division of Utilities certified the availability of adequate public sewer collection
and treatment to serve the project, through connection to the existing sewer line located in Coyote
Rock Drive. Irvin Water District#6, and County Fire District 1, certified the availability of water
capacity and pressure to serve the project. See certification from County Utilities dated 11-2-10,
and certifications and letter from Irwin Water District dated 11-17-11.
102. The conditions of approval recommended by the Spokane Regional Health District and
County Utilities require the preliminary plat to be served with public sewer and water.
103. The applicant made full frontage improvements to Coyote Rock Drive, and both sides of
Lockwood Street, north of Empire Avenue, a few years ago. Certain road improvements were
made to Lockwood, south of Empire, and to Empire, a few years ago, when public sewer was
installed. The record indicates that Lockwood, south of Empire, lacks sidewalk and curb; and has
a substandard width that does not allow 2-way traffic when vehicles are parked along both sides of
the street, or the installation of sidewalks. See testimony of Cliff Mort.
104. Spokane County Fire District 1 and City Engineering did not express any concerns regarding
the impact of the project on traffic safety, traffic capacity or fire access; including impacts to
Lockwood Street between Empire and Trent, Empire, the intersection of Lockwood and Empire,
and other items of transportation infrastructure impacted by the project. City Engineering did not
request any additional road improvements for the project.
105. The applicant advised that if the City restricts parking to one (1) side of Lockwood Street,
the road should be adequate to accommodate two (2) lanes of vehicular travel. See testimony of
Cliff Mort. This appears to be a traffic signing issue that is within the purview and capability of
City Engineering and the City Council to resolve,rather than the applicant's responsibility.
106. City Engineering certified transportation concurrency for the current application on
December 21, 2010. The certification took into consideration a trip distribution letter prepared for
the applicant by a consulting traffic engineer; which found that the project would generate only 13
PM peak hour trips, less than the minimum 20 PM peak hour trips required for preparation of a
traffic impact analysis (TIA) under the City Road Standards. See Exhibit 9, and letter dated 11-
24-10 from Ann Winkler, P.E.
107. The Hearing Examiner's decision approving the preliminary plat of Rivercrest at Coyote
Rocks found that transportation concurrency existed for such project. This included a finding of
concurrency for future traffic capacity impacts at the signalized intersection of Trent Road and
Cement Road, the only intersection of concern to City Engineering; based on a T1A prepared for
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 14
such project by the site owner's engineering consultant, and the certificate of transportation
concurrency issued for such project by City Engineering. See decision in File No. SUB-03-09.
108. The City Engineering conditions recommended for the current project require compliance
with the City Road Standards and other City transportation regulations, including driveway
approach design. The conditions of approval recommended by the Department require all
residential driveways and off-street parking areas in the final plat to be paved.
109. The proposal meets the transportation, sewer and water concurrency requirements set forth
in SVMC Chapter 22.20; and will not have any significant adverse impacts on traffic capacity or
safety in the area.
110. City Critical Areas maps designate the site in a critical aquifer recharge area (CARA) of
high susceptibility to groundwater contamination. See Map 8.2 of Comprehensive Plan. The
project is required to comply with the CARA regulations set forth in SVMC 21 A0.060, for a
CARA of high susceptibility. This requires the collection and treatment of stormwater generated
by the impervious surfaces in the project through the use of approved infiltration structures and
grassy swales, before stormwater is discharged to the ground.
111. The environmental checklist submitted for the project advises that the stormwater generated
by the project will be treated and discharged using conventional drywells and grassy swales,
before discharge to the ground; and that stormwater generated by the development of Lot 1 of the
preliminary plat, located adjacent to the Spokane River, will not reach the river.
112. City Engineering conditions of approval require the applicant to submit drainage plans and
install drainage facilities that comply with the 2008 Regional Stormwater Manual, for the final
plat of the project. Such conditions ensure compliance with the drainage requirements set forth in
SVMC Chapter 22.150 and SVMC 21.4.060, and general conformance with the drainage
recommendations for the project submitted by DOE. See letter dated 1-20-11 in Exhibit 14,
113. The Spokane Clean Air Agency recommended standard conditions of approval for the
project, to address the generation of dust during construction, and other potential air quality
impacts. The Staff Report recommends adoption of such conditions for the project.
114. East Valley School District, and the Director of the City Parks and Recreation Department,
were contacted regarding the project; but did not submit any comments.
I15. The applicant submitted a schematic plan at the public hearing showing the proposed
construction of a trailhead parking lot for the Spokane Centennial Trail along the north side of
Coyote Rock Drive northeast of the site, in the east end of parcel no. 454045.1604 owned by the
current site owner.
116. The schematic plan illustrates a walkway extending from the trailhead parking lot to the
Centennial Trail, to provide access for the public and the future housing developed on the site and
adjoining Iand owned by the site owner; a small developed park planned conceptually on such
parcel and adjoining City parkland lying south of the trail; and a driveway access to a future
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 15
community park contemplated on City parkland lying further to the northeast. See Exhibit 20,
testimony of Cliff Mort, and photo looking east on Coyote Rock Drive in Exhibit 14.
117. The trailhead parking facility is intended to satisfy conditions of approval recommended for
the project by the WDFW and State Parks; which agencies requested a single point of access from
the site owner's combined land to the adjoining City parkland and to the Spokane Centennial Trail
located on such parkland, respectively. An easement from State Parks is needed to allow such
access to the trail. See letter dated 3-22-11 from State Parks to Department.
118. The applicant testified that the damaged chain link fence located along the north boundary of
the site would be upgraded to help prevent trespass, illegal dumping and uncontrolled access; as
requested by State Parks in its conditions of approval. See testimony of Cliff Mort, and
preliminary plat map of record.
119. The record of survey recorded by the applicant on March 11, 2011, for the site and the
adjoining land owned by the current site owner to the east, was prepared by a licensed
professional land surveyor. This appears to satisfy the request from State Parks that the applicant
have a licensed professional survey and mark the north boundary of the site adjacent to City
parkland. See Exhibit 18.
120. The site was formerly used for mining; and was extensively graded over the past few years
above the steep slope, with no evidence being found of any tribal artifacts or cultural resources.
The environmental checklist submitted by the applicant states that the site contains no known
historical or cultural resources. The Department, in its written review of the environmental
checklist, advised that a cultural resource study was performed in 2006 for the grading permit
issued for the site and the site owner's adjoining land, and the Spokane Tribe had advised that no
cultural resources were found. See testimony of Cliff Mort, and Exhibit 9.
121. The applicant testified that it planned to memorialize the cultural and historical significance
of the area to the Spokane Tribe, in the development of the trailhead and access to the trail
planned east of the site. See testimony of Cliff Mort.
122. There is insufficient evidence in the record to require the applicant to conduct any further
survey of the site for tribal artifacts or cultural sites, prior to construction. The condition of
approval recommended by the Department that requires the applicant to cease construction in any
areas of the site where historical or cultural resources are found, and promptly notify the City
Community Development Department of such discovery, makes adequate provision for any
historical or cultural resources that may be found on the site during development.
123. The boundary line adjustment approved by the Department in 2006 for the land lying west of
the site, and for a portion of the site, is a final decision. The Hearing Examiner has no authority to
set aside such decision.
124. The project makes appropriate provision for open spaces, streets, alleys, drainage ways,
transit stops, schools and school grounds, playgrounds, parks and recreation, sidewalks and other
planning features for children who only walk to and from school, noise and dust emissions,
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 16
sanitary wastes and sewer, public potable water supplies, easements, utilities, and historical and
cultural resources; as required by RCW 58.17.110 and SVMC 20.20.100.
Consistency with Critical Areas. Shoreline. and Floodplain Requirements
125. The Staff Report, on page 6, states that Lots 1-6 of the preliminary plat are located in a 100-
year floodplain (area of special flood hazard) associated with the Spokane River; per the FIRM
maps for the area revised on July 6, 2010. The environmental checklist, on page 6, advises that
only the north portion of Lot 1 of the preliminary plat contains a 100-year floodplain; and no
development will occur in such floodplain area.
126. The FIRM maps show the 100-year floodplain northerly of Lots 1-6 of the preliminary plat
lying between elevations 1926 and 1927. See Exhibits 5 and 26. The elevations shown on the
preliminary plat map illustrate the extreme northwest corner of Lot 1 below elevation 1927, and
Lots 2-6 ranging below elevations 1929-1931. Accordingly, the only portion of the preliminary
plat area located in the 100-year floodplain is the extreme northwest corner of Lot 1.
127. The DOE continents submitted on February 17, 2011 advise that any part of the preliminary
plat located in the 100-year floodplain requires issuance of a floodplain development permit by
the City. Also see condition#11 listed on p. 14 of Staff Report.
128. SVMC 21.30.070 requires a floodplain development permit for any construction in the 100-
year floodplain. SVMC 21.30.090 sets forth various requirements for subdivisron proposals
located in a 100-year floodplain.
129. The location of the 100-year floodplain on the site should be illustrated on any final plat map
submitted for the project. The preliminary plat should be conditioned for compliance with the
SVMC 21.30.090, and other applicable requirements of SVMC Chapter 21.30.
130. The conditions of approval recommended by the Department require construction of the
project to comply with the HMP prepared by Larry Dawes on March 9, 2007. The HMP was
prepared to mitigate the encroachment of the grading project conducted in 2006 on the 75-foot
"grading setback" (measured from the OI-IWM) imposed by the grading permit, as requested by
DOE and the WDFW. Seep. See p. 11 of Staff Report
131. The HMP advised that a silt fence had been "conservatively" placed outside the 75-foot
grading setback; the OHWM of the river had not been formally delineated on the site owner's
combined properties; and Larry Dawes planned to formally delineate the OHWM in the future to
allow a more precise measurement of the 75-foot setback, and identify any areas inside the
setback that were encroached on by the grading project or remediation of the site owner's
property. The HMP required that any impacted areas located inside the grading setback be
replanted with native vegetation or otherwise mitigated, along with weed control. See p. 10 of
Hearing Examiner decision in File No. SDP-01-06.
132. The Hearing Examiner's decision approving the SDP for the site owner's combined
properties, issued on June 5, 2007, found that the grading project encroached on a small portion of
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 17
the 75-foot grading setback marked by the silt fence, lying east of Lockwood Road. This may
include the shoreline area of Lot 1 of the preliminary plat. See p. 11 of Hearing Examiner
decision in File No. SDP-01-06.
133. The conditions of approval attached to the Hearing Examiner's decision approving the SDP
imposed the following relevant requirements:
(a) Required an amendment to the HMP, to provide a vegetation plan for restoration of the
shoreline area where the 75-foot grading/development setback had been encroached upon;
the slope in the area of encroachment to be restored and covered with coir matting; and
restoration of the impacted area with a mix of native grasses and forbs by no later than
October 31, 2007.
(b) Required the Department to record a title notice attaching the 75-foot setback to each
deed for each shoreline lot sold.
(c) Provided for DOE and the Department to meet with the applicant, and agree to and
mark the location of the 75-foot setback on the ground with permanent low-profile concrete
or metal monuments.
(d) Required a delineation and permanent marking of the 75-foot setback on the ground for
the 29 shoreline Iots located west of the site, and the portion of the land in the current site
that abuts the shoreline; and prohibited any development or removal of vegetation inside the
75-foot setback without the written approval of the City and DOE. See pages 33-35 of
decision in File No. SDP-01-06.
(e) Prohibited the applicant from removing any more vegetation within the 250-foot wide
riparian buffer, measured from the OHWM, applicable to the Spokane River under the
provisions of the SVMC in place at the time the decision was issued on June 5, 2007; but
only for the portion of the site owner's land Iying east of Lot 1 of the current preliminary
plat,'north of proposed Coyote Rock Drive. Any portions of Lots 2-6 of the preliminary plat
Iocated within 250 feet of the OHWM would be subject to this restriction; except the portion
of Lot 2 that is currently part of an existing shoreline lot, along with Lot 1 of the preliminary
plat. See p. 29-30 of decision in File No. SDP-01-06
134. The amendments to the critical areas provisions of the SVMC that took effect on October
28, 2007 reduced the riparian buffer required for a DNR Type S stream from a 250-foot wide
buffer to a maximum buffer of 130 feet, subject to certain adjustments the Department has
authority to make under SVMC 21.40.040.
135. The development of Lots 2-6 of the preliminary plat, except for the portion of Lot 2 that is
currently part of an existing shoreline lot, should be required to comply with the restrictions
imposed by the cun-ent critical area provisions of the SVMC in the reduced 130-foot maximum
riparian buffer; rather than the restrictions imposed within the 250-foot riparian buffer applicable
under the expired critical area provisions. The preliminary plat map, as drawn by the applicant's
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 18
surveyor, does not show any portion of such Iot areas lying within 130 feet of the OHWM of the
river.
136. The preliminary plat should be conditioned for compliance with the conditions imposed by
the 2007 shoreline substantial development permit, except for the modification pertaining to the
reduced riparian buffer; and should also be conditioned for compliance with the regulations of the
City Shoreline Master Program ("Master Program"). Such conditions incorporate and enhance the
HMP prepared by Larry Dawes, and provide appropriate mitigation for the impact of the project
on the LINOS priority wildlife habitat designated on the site.
137. The steeply sloped area of the site appears to contain some slopes of 30% or greater, which
condition constitutes a geologic hazard under the geo-hazard provisions set forth in SVMC
21.4.050. See contours on preliminary plat map, and p. 4 of environmental checklist. The Staff
Report does not address such geo-hazard.
138. Pursuant to SVMC 21.40.050, the applicant should be required to submit a geo-hazard
evaluation that documents the extent and nature of the geo-hazard, and provide mitigating
measures and an assessment of geo-hazards associated with the project. A geo-hazard mitigation
plan may be required at the time of building permit application, or construction approvals.
Compliance with City Shoreline Master Program
139. DOE did not appeal the Hearing Examiner's 2007 decision approving the SDP;which found
that the shoreline area of the site owner's land located inside the Grandview Acres plat, including
the west portion of the site, was-designated in the Rural Area of the Master Program; based on
Subsection 3.2(1) of Section III on page 3-5 of the Master Program. DOE now contends that such
provision does not apply to the west portion of the site, and such land is designated in the Pastoral
Area, because the applicant is proposing a new preliminary plat in such area.
140. Subsection 3.2(1) of Section III on page 3-5 of the Master Program is arguably susceptible to
more than brie interpretation. The subsection could be read to apply to land located in a final plat
that received preliminary approval on or before December 31, 1974, and received final plat
approval after such date; to apply to land located in a final plat that received preliminary approval
on or before December 31, 1974, and received final plat approval either before or after such date;
or, as urged by DOE, not to apply to any land in a preliminary plat approved after December 31,
1974, regardless of previous preliminary plat or final plat approvals.
141. The Hearing Examiner's interpretation best implements the wording of Subsection 3.2(1) of
Section III of the Master Program; and the intent of the Master Program to preserve consistency
between the Master Program and the uses and zoning in plats that became vested for development
prior to the Master Program taldng effect in January of 1975. See discussion on page 5-2 of
Master Program. Zoning principles do not favor the creation of nonconforming uses.
142. Since the final plat of Grandview Acres plat received preliminary approval prior to
December 31, 1974, the shoreline area of the site located inside the boundaries of such plat was
designated in the Rural Area, upon the adoption of the Master Program on January 15, 1975. The
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 19
submittal of the current application for a new preliminary plat does not nullify the Rural Area
designation, or resurrect the Pastoral Area designation, for the shoreline portion of the site. The
remaining east portion of the site and preliminary plat is designated in the Pastoral Area, since it
lies east of and outside the Grandview Acre plat.
143. The Department concurred with the Hearing Examiner's interpretation. See p. 7 of Staff
Report.
144. Use Regulation 8.1.1(b) on page 4-15 of the Master Program, for the Pastoral Area,prohibits
residential subdivisions in the shoreline area; except for any portion of a subdivision dedicated to
the existing state of the shoreline, or to recreational purposes that are consistent with other
applicable regulations and policies of the Master Program for the Pastoral Area.
145. Use Regulation 8.1.2 on page 4-15 of the Master Program prohibits residential structures in
subdivisions in the shoreline area, in the Pastoral Area.
146. The above restrictions on subdivisions and residential structures in the shoreline area do not
apply in the Rural Area of the Master Program. See page 4-15 of Master Program.
147. The Master Program authorizes the construction of a single-family residence on an
individual lot in all shoreline areas; by an owner, lessee or contract purchaser of the residence for
their own use; provided the residence is set back at least 50 feet from the OHWM, does not
exceed a height of two (2) stories or 35 feet above average grade level, and meets all State and
City requirements.
148. The Master Program limits the clearing of land for development in all shoreline areas;
including prohibitions and limitations on the harvesting of timber. The Master Program requires
that a 50-foot or greater buffer strip of natural vegetation be maintained along the waterfront,
when harvesting timber or when clearing land for agricultural use or building construction, to
prevent erosion and protect water quality and fish habitat. See Use Regulation 8.2.4 on p. 4-15,
General Regulation 5.11 on p. 4-8, and use regulations under subsection 3.2 on p. 4-10; of Master
Program.
149. The regulations of the Master Program for recreation:
(a) Limit the use of the shoreline area for recreation to recreational activities that are
dependent on or enhanced by the shoreline environment; such as fishing, boating,
swimming and recreational trails.
(b) Require the provision of access to and along the waterfi-ont for pedestrians and
bicycles, where appropriate, and where the biophysical capabilities of the shoreline area
allow such use.
(b) Require the preservation or enhancement of scenrc views of the water and from the
water; and the design and development of recreational areas to protect the natural features
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 20
of the land and its vegetation, and the quality of the water for recreational use and natural
habitat.
See pages 4-22 and 4-23 of Master Program.
150. Use regulation 14.1.3 on page 4-23 of the Master Program, applicable to all shoreline areas,
requires that access to and along the waterfront be provided for pedestrians and bicycles, where
appropriate and where the biophysical capabilities allow such uses.
151. The policies of the Master Program for recreation recommend that only passive recreational
uses be permitted in the Pastoral Area; priority should be given in the Rural Area to use activities
that incorporate or provide public recreation and public access along shorelines and within
shoreline areas; and parking and automobile traffic associated with recreational uses be
minimized in the Rural Area.
152. The Master Program prohibits development that would destroy the scientific or educational
uses of significant archaeological, cultural, or historical sites, buildings, artifacts or other
identified phenomena in the shoreline area; and requires that developments in such sites be
designed to preserve the natural environment and visual quality of its surroundings. See p. 4-22
of Master Program.
153. The Master Program prohibits docks in the Pastoral Area; except for the construction of a
dock designed for pleasure craft only, for the private noncommercial use of the owner or lessee
of a single-family home.
154. The Master Program permits docks in the Rural Area for recreational, educational or other
public purposes, with shared or community docks being preferred over individual docks for the
sole use of a property owner. Any docks constructed are subject to the approval of federal and
state laws relating to navigation and effects on fish habitat. See p. 4-25 and 4-26 of Master
Program.
•
155, The general use regulations on pages 4-7 and 4-8 of the Master Program require that ground
cover in areas of 5% or greater slope in the shoreline area be retained or replaced with similar
vegetation to prevent erosion.
156. The general use regulations set forth on pages 4-7 and 4-8 of the Master Program require
that every consideration be given to protecting and enhancing views of the water and from the
water, within the shoreline area; in planning, constructing and maintaining development.
157. The Master Program requires that adequate buffer areas of permanent vegetation be
maintained above the OHWM to protect against shoreline erosion; and to reduce the amount of silt,
soil, nutrients, and pollutants entering the water from agricultural runoff. See Use Regulation 5.17
on p. 4-9 of Master Program; and Use Regulations 5.12 on page 4-8, and 3.2.3 on page 4-10.
158. The SMA defines "shorelines of the state" to mean and include "shorelines" and "shorelines
of statewide significance".
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 21
159. The SMA defines "shorelines" to mean all the water areas of the state below the OHWM;
except "shorelines of statewide significance", lakes below a certain size, and streams below a
certain mean annual flow. "Shorelines of the state" include the larger water areas of the state,
including the Spokane River. See RCW 90.58.030(2), WAC 173-22-030 and p 4-31 of Master
Program.
160. The SMA specifies enhanced policies for shorelines of statewide significance, which all
developments within such shorelines must adhere to. This includes recognizing and protecting the
statewide interest over the local interest, preserving the natural character of the shoreline, resulting
in long-term over short-term benefit, protect the resources and ecology of shorelines, increasing
public access to publicly owned areas of shorelines, increasing public access to publicly owned
areas of shorelines, and increasing recreational opportunities for the public on the shorelines. See
RCW 90.58.020; and p. iii, 1-3 and 1-4 of Master Program.
161. The SMA defines "shorelands" as follows:
" `Share/ands', or 'shoreland areas', mean those lands extending landward for two
hundred feet in all directions as measured on a horizontal plane from the ordinary
high water mark, floodways and contiguous flood plain areas landward two
hundred feet from such floodways; and all wetlands and river deltas associated
with the streams, lakes, and tidal waters which are subject to the provisions of this
chapter; the same to be designated as to location by the state department of
ecology. Any county or city may determine that portion of a one hundred-year
flood plain to be included in its master program as long as such portion includes,
as a minimum, the floodway and the adjacent land extending landward two hundred
feet therefrom.
[Emphasis added]. See RCW 90.58.030(2)(d), WAC 173-22-030(7), and p 4-31 of Master
Program.
162, WAC 173-22-030(1) defines "associated wetlands" as "...those wetlands which are in
proximity to and either influence or are influenced by tidal waters or a lake or strewn subject to
the Shoreline Management Act."
163. The SMA defines "wetlands", in pertinent part, as follows:
" Wetlands' or 'wetland areas' means areas that are inundated or saturated by
surface or groundwater at a frequency or duration sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions. Wetlands generally include swamps,
marshes, bogs and similar areas... "
[Emphasis added]. See RCW 90.58,030(2)(h), WAC 173-22-030(10), and p. 4-32 of Master
Program.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 22
164. The SMA prohibits "development" in the shorelines of the state and their associated
shorelands; unless the development is consistent with the policy and provisions of RCW Chapter
90.58 (Shoreline Management Act), WAC Chapter 173-27 (Shoreline Management Permit and
Enforcement Procedures), and the local master program. See RCW 90.58.140(1), WAC 173-27-
140(1), and p. 4-1 of Master Program.
165. "Development" is defined in RCW 90.58.030(3)(a) of the SMA as follows:
"'Development' means a use consisting of the construction or exterior alteration
of structures; dredging; drilling, dumping;filling; removal of any sand, gravel, or
minerals; bulkheading; driving of piling; placing of obstructions; or any project
of a permanent or temporary measure which interferes with the normal public use
of the surface of the waters overlying lands subject to this chapter at any state of
water level."
[Emphasis added]. Also see WAC 173-27-030(6), and p. 4-32 of Master Program.
166. The SMA prohibits a "substantial development" in shoreline and shoreland areas, unless a
permit is first obtained from the local agency. See RCW 90.58.140(2), WAC 173-27-140(2), and
p, 4-1 of Master Program
167. "Substantial development" is defined by RCW 90.58.030(3)(e) to mean any development of
which the total cost or fair market value exceeds $5,000, or any development which interferes with
the normal public use of the water or shorelines of the state; adjusted annually for inflation
commencing July 1, 2007, and subject to certain specified exemptions. The definition of
"substantial development" on page 4-32 of the Master Program has not been updated to be current
with the dollar limits listed in RCW 90.58.030(3)(e).
168. The SMA exempts various types of development from substantial development permit
requirements. This includes, in pertinent part, the construction of a single-family residence in the
shoreline area by an owner, lessee or contract purchaser of the residence for their own use or the
use of their family, which residence does not exceed a height of 35 feet above average grade and
which meets all requirements of the local jurisdiction".
169. Development exempt from substantial development permit requirements also includes single
and community docks constructed in freshwater and designed for pleasure craft only, for the
private noncommercial use of the owner, lessee or contract purchaser of single-family and
multifamily residences; where the fair market value does not exceed $10,000. See RCW
90.58.030, WAC 173-27-040(2) and p. 4-32 of the Master Program.
170. The proposed construction of docks on Lot 1 of the preliminary plat should be conditioned
on compliance with the regulations of the Master Program for docks in the Rural Area. This may
or may not include the need to obtain a substantial development permit.
171. RCW 90.58.030(2)(c) defines the term "ordinary high water mark" (OHWM) as follows:
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 23
`Ordinary high water mark'on all lakes, streams and tidal water is that mark that
will be found by examining the bed and banks and ascertaining where the presence
and action of waters are so common and usual, and so long continued in all
ordinary years, as to mark upon the soil a character distinct from that of the
abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as
it may naturally change thereafter, or as it may change thereafter in accordance
with permits issued by a local government or the department; PROVIDED, That in
any area where the ordinary high water mark cannot be found, the ordinary high
water mark adjoining fresh water shall be the line of mean high water."
[Emphasis added]. AIso see WAC 173-22-030(5) and p. 4-31 of Master Program.
172. RCW 90.58.020 sets forth the policy of the State regarding the management of shorelines
and shorelands of the state. Such statute contains the following statement regarding the
recognition by DOE of alterations of the natural conditions of such shorelines and shorelands:
"Alterations of the natural condition of the shorelines and shorelands of the state
shall be recognized by the department. Shorelines and shorelands of the state
shall be appropriately classified and these classcations shall be revised when
circumstances warrant regardless of whether the change in circumstances occurs
through man-made causes or natural causes. Any alterations resulting from
alterations of the natural condition of the shorelines and shorelands of the state
no longer meeting the definition of'shorelines of the state'shall not be subject to
the provisions of chapter 90.58 RCW. "
[Emphasis added]
173. Washington case law has interpreted the term ordinary high water mark (OHWM), as defined
in RCW 90.58.030(2), as the line where:
-the water's presence is reflected in the vegetation;
-the water body has caused aquatic vegetation to grow (at its most landward point);
-the water body prevents the growth of"terrestrial vegetation", and/or
-"aquatic vegetation" transitions to "terrestrial vegetation"
See Thompson v. Department of Ecology, 136 Wn. App. 580, 585-587; review denied at 161
Wn.2d 1023 (2007).
174. The term "aquatic plant" is defined in WAC 220-110-020 to mean "...any aquatic noxious
weed and aquatic beneficial plant that occurs within the ordinary high water line of waters of the
state."
175. During the latter half of 2007, Mike Maher of DOE met with Charles Lempesis, attorney for
the applicant and site owner; and Drew Dittman, a professional engineer retained by the applicant;
along the bank of the Spokane River north of the site owner's ownership. At the time, Maher was
responsible for OHWM determinations made by DOE along shorelines in the Spokane area.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 24
Maher later took a medical leave due to a personal injury, and Jeremy Sikes took over such role
for DOE.
176. The 2007 meeting between DOE and the applicant was, at a minimum, a follow-up to the
requirement in the Hearing Examiner's decision approving the SDP, issued on June 5, 2007, that
the applicant and DOE meet, determine the location of the 75-foot grading setback on the ground
on the 30 shoreline lots owned by the site owner along the Spokane River, and mark such location
with permanent low-profile concrete or metal monuments. This included a 75-foot setback on Lot
1 of the preliminary plat.
177. Charles Lempesis testified that he recalled Mike Maher of DOE walking the shoreline along
and north of the site owner's combined land, including the site, during the 2007 meeting; and
advising that a pine tree located on the north side of the river be used to determine the OHWM on
the south bank of the river. Lempesis testified that Maher made such recommendation due to the
lack of Ponderosa pine trees Iocated along the south side of the river that could be used as a
reliable indicator in determining the OHWM along the south side of the river.
178. Charles Lempesis and Drew Dittman testified that during the 2007 meeting, a meandering
75-foot grading setback was agreed to and marked on the 30 shoreline lots, and permanent marker
caps were later placed at such location; but the OHWM of the river along the south side of the
river, north of the site, was not delineated or marked on the ground.
179. Drew Dittman testified that the elevation of a pine tree located on the north side of the river
was later used by Adams & Clark, a surveying and engineering company retained by the site
owner, to interpolate the location of the OHWM along the south bank of the river north of the site,
and delineate the OHWM on the preliminary plat map. See Exhibits 23 and 24.
180. Jeremy Sikes testified that Mike Maher had advised him, both verbally and in writing, that
he had not walked the south bank of the river lying east of the Centennial Trail bridge, north of
the site, during the 2007 meeting; or determined or delineated the OHWM in such area during the
meeting. •
181. Drew Dittman testified on cross-examination that he could not recall whether Mike Maher
walked the shoreline area of the river east of the Centennial Trail bridge; which area generally
corresponds to the location of the river north of the site.
182. Larry Dawes, a wildlife biologist retained by the applicant and site owner, submitted a
written report regarding the OHWM issue just prior to commencement of the July 6, 2011 hearing
session, but was unable to stay and testify at the hearing regarding his report. See Exhibit 23.
183. Larry Dawes indicated in his report that he was not present at the 2007. meeting; and was not
consulted regarding establishment of the 75-foot buffer on the shoreline lots owned by the current
site owner, or delineation of the OHWM of the river north of the site by the Adams & Clark
survey.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 25
184. Larry Dawes advised in his report that several Ponderosa pines are located on the north bank
of the river, but none occur on the south bank of the river north of the site; Mike Maher of DOE
made an "OHWM determination" at the 2007 meeting, by advising the use of the Ponderosa pines
on the north bank of the river as a reference point for the OHWM; the OHWM was later
"interpolated" by a surveyor who staked the line on the south bank of the river; and Dawes later
reviewed such delineation of the OHWM in the field and concurred with the "indicator" and the
OHWM delineation. Dawes did not disclose the date that he reviewed the delineation in the field.
185, The applicant did not provide a copy of Adam & Clark's purported survey of the OHWM
line north of the site to DOE for verification of the OHWM north of the site, prior to or at the
March 24, 2011 or July 6, 2011 hearing sessions. A copy of such survey, if it exists, is not located
in the record.
186. Sheet 1 of the preliminary plat map submitted by the applicant contains the note "edge of
water" above a shoreline lot located west of the site, along with a reference to a record of survey
prepared by Adams & Clark and recorded with the County Auditor on November 29, 2007. A
copy of pages 2 and 3 of the record of survey is located in the application file. Such pages
contains a survey of the boundaries of the site, various shoreline lots located west of the site, and
the site owner's adjoining land to the south and east. The survey pages do not depict the OHWM
north of the site, and contain notes above two (2) shoreline Iots lying west of the site stating that
"edge of water observed October 27, 2005".
187. Jeremy Sikes, during his March 24, 2011 visit to the disputed shoreline area, identified two
(2) areas of apparent discrepancy in the OHWM of the Spokane River north of the site, based on a
site visit conducted on March 24, 2011. This included an area of high flow of the river near Lots
6-8 of the preliminary plat, where a mid-channel island forms at higher flows; and an area located
east of such point, near the large basalt rocks in the river, where the flow splits and forms a small
"bay" used for public access. See email dated 3-24-11 from Jeremy Sikes to Micki Harnois, and
preliminary plat map. The more easterly area may coincide with the possible wetland identified
on the City's critical area maps.
188. The persons present at the April 19, 2011 meeting in the field included, but were not limited
to, Jeremy Sikes and Mike Maher of DOE, Larry Dawes, and Drew Dittman and Cliff Mort for the
applicant. Sikes and Dawes walked the entire south bank of the river lying north of the site, and
placed pin flags at regular intervals along the river north of the site where the vegetation and soils
appeared to correspond to the O1-IWM.
189. The memo submitted by Jeremy Sikes to the Hearing Examiner on April 20, 2011, a copy of
which was provided to the applicant and the Department, advised that Sikes, Maher and Dawes,
upon close inspection of the site, were in general agreement that the OHWM was substantively
where Sikes had estimated it to be on March 24, 2011. Sikes testified that the applicant during the
meeting the applicant agreed to promptly survey the location of the OHWM in its flagged Iocation,
and allow DOE to review the survey for accuracy.
190. Larry Dawes, in his July 6, 2011 report, advised that Drew Dittman returned to the shoreline
location inspected by the parties on April 22, 2011, to survey the OHMW based on the flags
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 26
marked by Jeremy Sikes and Larry Dawes. However, Dawes advised that most of the flags had
been removed by an unknown person(s), or by the flow of the river; except for some flags located
along the south edge of a landward depression that would be hidden from view by a person
walking the shoreline. The flags were not removed by DOE. See testimony of Jeremy Sikes.
191. On May 11, 2011, the applicant's Iegal counsel advised DOE and the Department that an
impasse had been reached regarding the location of the OHWM in the disputed area; and
contended that the "small area of wetlands" upon which DOE was basing its determination was
man-made and not a natural condition of the river that could be used to delineate the OHWM.
192. The applicant had Drew Dittman survey the disputed OHWM in the area where the flags
remained on April 22, 2010. However, the applicant failed to notify DOE before the July 6, 2011
hearing session that a large number of the flags placed along the apparent OHWM on April 19,
2011 had been removed, and that Dittman was only able to survey the apparent OHWM in the
location where the remaining flags were found. Jeremy Sikes testified that had DOE been made
aware of the missing flags, the location of the OHWM in the entire disputed area could easily have
been remarked with flags, and a survey prepared by the applicant and reviewed by DOE, before the
hearing.
193. The applicant did not submit a copy of its survey of the OHWM of the river in the area where
the remaining marker flags were fotuud on April 22, 2010. The applicant did submit a copy of a
July 7, 1957 aerial taken of the area; with the preliminary plat superimposed thereon, and a
meandering line representing the south boundary of the depression lying north of the site noted by
Larry Dawes in his report. See Exhibit 22.
194. The exhibit shows the meandering line extending southeasterly away from the Spokane
River, a short distance southeast of a southerly indentation in the south bank of the river shown on
the preliminary plat map, at a point lying northwest of and parallel to the east portion of Lot 7 of
the preliminary plat; and continuing southeasterly to a point lying northwest and parallel to the east
boundary of Lot 9 of the preliminary plat.
195. The 1957 aerial has an apparent scale of approximately one (1) inch equals 400 feet,
comparing the photo to the scaled preliminary plat map. The meandering line superimposed on the
1957 aerial photo, representing the location of the disputed OHWM at the southerly edge of the
depression, appears to be lie approximately 100 feet northerly of Lots 8-9 of the preliminary plat;
and within 200 feet of significant portions of Lots 6-13 of the preliminary plat.
196. Lots 8-13 of the preliminary plat, and most of Lot 7, are designated in the Pastoral Area of
the Master Program; where residential subdivisions are prohibited in the 200-foot shoreline area.
197. Jeremy Sikes and Drew Dittman agreed during their testimony that the river during high
flows forms an inlet between the depression and the indentation in the bank of the river Iocated
northwest of the depression. The exhibit does not show the full extension of the meandering line
to the indentation located along the river, or the east edge of the depression; apparently due to the
g p pp Y
loss of the marker flags that marked the disputed OHWM in such areas.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 27
198. Larry Dawes in his report advised that he was unable to compare the location of the OHWM
surveyed by Adams & Clark north of the site with the OHWM flagged in the field on April 19,
2011; because many of the flags had been removed, and only a portion of the OHWM in the
disputed area could be surveyed by Drew Dittman.
199, Larry Dawes in his report advised that it is difficult to determine the OHWM of a river along
a "soft bank", like the south side of the river north of the site compared to the "hard bank" lying
north of the river, where bank scour marks generated over a relatively long period of time can be
readily observed during lower water conditions, and vegetation that cannot grow below the
OHWM mark can also be readily observed, such as the exposed base of Ponderosa pine trees.
200. Larry Dawes in his report indicated that he and Jeremy Sikes established an OHWM Iine on
the bank of the river that used erosion, and the upland species Oregon grape, as primary indicators.
Dawes advised that such plant species could grow below the OHWM, if the period of inundation
was short; but if the presence of water was of long duration, it would stunt or otherwise adversely
affect the normal growth of the plant.
201. Larry Dawes in his report referenced a conversation that he had with Drew Dittman in the
field on April 19, 2011; in which Dittman queried how Oregon grape could be used to establish the
OHWM in the disputed area, when a lot of Oregon grape bushes were still under water on the
south river bank, and Dawes could not observe whether it had a different growth habit that what he
observed on dry land. However, Dawes apparently did not feel that this issue was important
enough to draw to the attention of Jeremy Sikes or Mike Maher of DOE in the field; before the
OHWM mark was flagged by the general agreement of Sikes, Maher and Dawes.
202. The extrapolation of the elevation of the river at the base of the Ponderosa pine(s) located on
the north side of the river, along a "hard bank" at the point where scour has exposed some of the
tree roots; to the south side of the river, along a "soft bank", generally appears to be a reasonable
technique to determine the OHWM of the river north of the site.
203. Notwithstanding the general suitability of the technique, the extrapolation of such elevation
to the south side of the river by Adams & Clark, which was purportedly field verified by Larry
Dawes but not by DOE, failed to address the anomaly in the south river bank presented by the inlet
located north of the site; which is located at a lower elevation than the land lying between the inlet
and the south river bank. The OHWM marked by flags along the line of erosion and Oregon grape,
established by DOE and Dawes on April 19, 2011, appears to present the best evidence of the
OHWM in the disputed location.
204, Jeremy Sikes testified that a DOE policy manual published in 2010 recommends the use of
the "2-year return" flood level along the river to identify the approximate location of the OHWM,
Sikes stated that the 2-year return flood Ievel ("ordinary high flow") is the approximate level of the
river at which indicators relied on by DOE to determine the OHWM in the field are believed to be
created. Sikes advised that the 2-year return flood level is at approximately 23,200 cfs at the
disputed location. See email dated 4-5-11 from Jeremy Sikes to Hearing Examiner and parties.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 28
•
205. Larry Dawes in his report effectively argued that the 2-year return flood level is useful in
determining whether the river has fallen far enough in elevation so that the OHWM mark of the
river is not underwater and can be observed; but is not reliable enough to establish the actual
OHWM in relatively arid areas, such as Eastern Washington.
206. The record indicates that the river was well below the 2-year return level of around 23,200
cfs when the OHWM was delineated on March 24, 2011 and April 19, 2011; indicating that these
were appropriate times to attempt to delineate the OHWM in the disputed location. See "actual"
flows listed on such dates on chart labeled "Daily Flows on the Spokane River (Post Falls Darn"),
in Exhibit 22; and email dated 4-5-11 fi-om Jeremy Sikes.
207. Drew Dittman contended at the public hearing that the term "line of mean high water" is
represented by the mean (average) flow of the water body determined each day, averaged over a
certain period of years. Such term is to be used as a default to determine the OHWM for a
freshwater body under RCW 90.58.030(2)(c), where the OHWM cannot be determined through an
examination of the action of the waterbody on the soils and vegetation located along the river
bank..
208. Drew Dittman determined the "line of mean high water" of the Spokane River north of the
site by calculating the average flow of the river each day, for each day of the year during the last 97
years (1914-2010), during which time period records were available at the nearest public darns
located upstream and downstream of the site; and then averaging all these flows together. This
produced a daily mean flow of 6,335 cubic feet per second (cfs). See Exhibit 15,.and testimony of
Drew Dittman.
209. DOE determined the "line of mean high water" of the Spokane River Iying north of the site
by calculating the highest flow of the river on each day, for each day of year during the last 97
years (1914-2010), during which time period records were available at the nearest public dams
located upstream and downstream of the site; and then averaging all these flows together. This
produced a daily mean flow near the 2-year flood return level. This definition is recommended in
DOE's policy manual adopted in 2010. See email dated 4-5-11 from Jeremy Sikes to parties of
record, and testimony of Jeremy Sikes.
210. The term "line of mean high water" referenced in RCW 90.58.030(2)(c) is not defined by
Washington statutes, regulations or case law.
211. The term "mean higher high water" that is used as a default in RCW 90.58.030(2)(c) to
determine the OHWM for a salt water body, is defined in WAC 220-110-020(58) as "...the tidal
elevation obtained by averaging each day's highest tide at a particular location over a period of
nineteen years...". The term "higher" in such term is necessitated by the existence of two (2) high
tides per day along the shore of a salt water body.
212. The definition of "mean high water" urged by the applicant employs the term "mean", or
average; but fails to give any meaning to the words "high water". The definition of"line of mean
high water" by DOE properly gives meaning to the words "high water" and "mean", is
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 29
substantially similar to the definition of"mean higher high water" for saltwater bodies referenced
above, and appears to be the appropriate definition of the term.
213. The applicant contended at the hearing that the OHWM flagged by Jeremy Sikes and Larry
Dawes on April 19, 2011 in the disputed area, and partially surveyed by Drew Dittman, is not
supported by the location of the 100-year floodplain in the area. See testimony of Charles
LempesIs.
214. The 100-year floodplain illustrated on the FIRM map, which has a scale of 1-inch equals 500
feet, is significantly closer to the Centennial Trail than the OHWM illustrated north of the site on
the 1957 aerial, which is based on the April 19, 2011 delineation of the OHWM. Compare, for
example, the approximate 1,050 foot distance indicated between the centerline of Empire Way and
the 100-year floodplain, measured northwesterly along the alignment of Stegner Street on the
FIRM map marked as Exhibit 26, with the approximately 1,150 feet indicated between the
centerline of Empire Way and the disputed OHWM line measured along the same alignment
(approximately 1,150 feet), on the 1957 aerial included in Exhibit 22.
2I5. The width and shape of the 100-year floodplain north of the site, as shown on the FIRM map,
provides support for the partial OHWM that was delineated north of the site based on the April 19,
2011 flagging in the disputed area.
216. Drew Dittman testified that his examination of the depression in the disputed area indicates
that it is likely a manmade "borrow pit", perhaps created through the mining of gravel; Mike
Maher of DOE agreed with him that the depression is likely manmade; and the 1957 aerial photo
does not appear to show the borrow pit, although it is difficult to tell from such photo.
217. Drew Dittman and Jeremy Sikes agreed at the hearing that the dark areas shown south of the
main river channel in the 1957 aerial photo generally represent the presence of vegetation, and the
white areas generally represent the lack of vegetation.
218, The 1957 aerial shows a dark area representing vegetation along the south edge of the
meandering line marking the landward extension of the disputed OHWM, before the trail turns
parallel to the current location of the Centennial Trail. However, the photo also shows a large
white area extending toward the river further to the north, and connecting northwesterly to the
indentation in the south bank of the river channel.
219. The large white area could well mark the location of the depression or borrow pit as it may
have existed in 1957; particularly considering the superimposing of the preliminary plat map on the
1957 aerial photo is less than an exact match, and the river was at a very low flow level of only
1,350 cfs at the time the aerial photo was taken. See Exhibit 22, and testimony of Jeremy Sikes.
220. Jeremy Sikes testified that the 1957 aerial photo is inconclusive in establishing the presence
of the borrow pit in the disputed area. Sikes also advised, prior to the hearing, that aerial photos
from 1946 show some earthwork along the shoreline in the disputed area, and aerial photos taken
in 1971 and 1972 show the disputed area well vegetated. See email dated 5-13-11 from Jeremy
Sikes to Hearing Examiner and parties.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 30
N
221. The 2009 aerial photo submitted by the Department shows the two (2) parcels currently
making up the site superimposed on the photo, and shows vegetative cover in the disputed area.
The time of year when the photo was taken is not indicated. See Exhibit 21.
222. The applicant contended that if the OHWM is located where DOE claims, the Centennial
Trail bridge, and the trail where it parallels the site, were improperly located within 50 feet of the
OHWM of the river. See testimony of Charles Lempesis.
223. The 1957 aerial photo illustrates the Centennial Trail at least 50 feet south of the meandering
line representing the disputed OHWM, at its closest point. Further, the Master Program prohibits
the location of a"structure", but not a public trail, within 50 feet of the OHWM; and authorizes the
location of bridges related to recreational development within 50 feet of the OHWM. Compare
reference to "road" as a "... a linear passageway for motor vehicles", with the reference to
"bridge" as "...a publicly or privately owned structure..."; in Policy 12 on p. 3-10 of Master
Program. Also see Regulation 5.11 on p. 4-8 of Master Program, and the regulations for recreation
on p. 4-22 and 4-23 of Master Program.
224. The site and adjoining land to the east were historically used for intensive industrial and/or
mining operations, over many years. This included the operation of a paper company; and mining
of the portion of the site lying east of Stegner Street, and adjoining land to the east, for sand and
gravel, in conjunction with the operation of a concrete plant.
225. Mining operations created some terraced areas above and near the river, including the
terraced area lying above the north boundary of the site. A pit road was located in the approximate
location of Coyote Rock Drive. The concrete plant that was the basis for gravel and sand mining
operations closed in the early 1970s. See p. 8-9 of Hearing Examiner decision in File No. SDP-01-
06, and email dated 5-13-11 from Jeremy Sikes to Mike Dempsey and parties.
226. In October of 2000, the State Department of Natural Resources approved a surface mine
reclamation permit for the area lying east of Stegner Street extended; for a project to mine up to
250,000 tons of sand and gravel, over an estimated 10-year period. The reclamation plan required
the area to observe a setback of 200 feet from the river, and reclamation of the area as it was
mined. Seep. 3 of Hearing Examiner decision in File No. SDP-01-06.
227. In 2006 and 2007, the site owner removed huge quantities of concrete and asphalt waste,
demolition debris and miscellaneous waste products from this area of the site owner's ownership,
and reclaimed the land for development. See p. 9-10 of Hearing Examiner decision in File No.
SDP-01-06.
228. It appears unlikely from the record that the former borrow pit located inside the disputed
OHWM of the river, north of the site, was excavated after June 1, 1971; or if the pit was excavated
after such date, that it was created in violation of applicable zoning, the Master Program, or other
applicable development regulations.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 31
229. The revised location of the OHWM north of the site significantly impacts the design of the
preliminary plat, particularly due to application of the 200-foot subdivision setback required by
the Master Program in the Pastoral Area,
230. SVMC 20.50.020 requires that any request for a proposed modification to an approved
preliminary subdivision be submitted to the Department; requires proposed modifications to site
plans or conditions of approval that would substantially impact adjacent properties or conditions
of approval established by the Hearing Examiner to be processed as a change of conditions though
the Hearing Examiner; and allows other changes to be processed administratively by the
Department.
231. RCW 58.17.140 authorizes the review authority to return a preliminary plat for modification
or correction.
Based on the above findings of fact, the Hearing Examiner enters the following:
III. CONCLUSIONS OF LAW
1. The OHWM of the Spokane River located north of the site and preliminary plat area, in the
area disputed by DOE, is significantly landward of where it is shown on the preliminary plat map
of record.
2. The meandering line illustrated on the 1957 aerial photo that represents a portion of the
OHWM that was marked on the ground north of the site on April 19, 2011, by DOE and Larry
Dawes, accurately depicts the OHWM of the river in such location. The meandering line does not
show the full extent of OHWM located north of the site, in the area disputed by DOE; due to the
loss of the flagging placed along the OHWM on April 19, 2011.
3. The west portion of the site located inside the boundaries of the Grandview Acre final plat
recorded in 1908 is designated in the Rural Area of the City Shoreline Master Program, based on
the application of subsection. 3.2(1) of Section III on page 4-5 of the Master Program. The east
portion of the site is designated in the Pastoral Area of the Master Program, as designated on City
shoreline maps.
4. The application of the 200-foot shoreline setback for residential subdivisions located on land
designated in the Pastoral Area to the preliminary plat, based on the corrected OHWM, will have
a significant adverse impact on the design of the preliminary plat; and requires return of the
preliminary plat to the applicant for modification or correction.
5. Under the circumstances, the preliminary plat application as modified should continue to be
vested under the development regulations in place when the original application was submitted as
complete.
6. The additional conditions of approval recommended for the preliminary plat recommended
in the above findings of fact should be considered in the design of a revised preliminary plat.
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 32
•
7. The applicant may have grounds to apply for a shoreline variance regarding application of
the 200-foot shoreline setback to the preliminary plat, based on the unique character of the inlet of
the river that requires an adjustment to the OHWM located north of the site.
8. Any conclusion of law above that is a finding of fact shall be deemed such.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law above, the application for a
preliminary plat is hereby returned to the applicant for modification or correction; based on the
revised location of the OHWM of the river located north of the site, and application of the
regulations of the City Shoreline Master Program to the revised Iocation of the OHWM.
The location of the OHWM for the inlet of the Spokane River located north of the site shall
be fully delineated, in order to determine its affect on the redesign of the preliminary plat.
The possible wetland area designated north of the east portion of the site on City critical
areas maps shall be investigated and delineated as necessary, including any impact it may have on
the location of the OHWM north of the site.
DATED this 26'1' day of July, 2011
CITY HEARING EXAMINER PRO TEM
Mich el C. Dempsey, WSBA •{: 3 ,1
•
HE Findings, Conclusions and Decision File No. SUB-02-10 Page 33
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC), the
decision of the Hearing Examiner on an application for a preliminary plat is final and
conclusive unless within twenty-one (21) calendar days from the date of issuance of the
Examiner's decision, a party with standing files a land use petition in superior court
pursuant to RCW Chapter 36.70C. Pursuant to RCW Chapter 36.70C, the date of issuance
of the Hearing Examiner's decision is three (3) days after it is mailed.
This decision was mailed by regular mail to the Applicant, and to all government
agencies and persons entitled to notice under Section 17.80.130(4) of the SVMC, on July 26,
2011. The date of issuance of the Hearing Examiner's decision is therefore July 29, 2011,
counting to the next business day. THE APPEAL CLOSING DATE IS AUGUST 19,2011.
The complete record in this matter, including this decision, is on file during the
appeal period with the Office of the Hearing Examiner, Third Floor, Public Works
Building, 1026 West Broadway Avenue, Spokane, Washington, 99260-0245; and may be
inspected by contacting Kristine Chase at (509) 477-7490. The file may be inspected during
normal working hours, listed as Monday-Friday of each week, except holidays, between the
hours of 8:00 a.m. and 4:30 p.m. After the appeal period, the file may be inspected at the
City of Spokane Valley Department of Community Development-Planning Division, 11707
E. Sprague Avenue, Spokane Valley, WA, 99206; by contacting Micki Harnois 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.
I-IE Findings, Conclusions and Decision File No. SUB-02.10 Page 34