Hearing Examiner Decision SUB-03-11 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Preliminary Plat of 4th Avenue Townhomes, )
in the MF-2 Zoning District; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Applicant: Diamond Rock Construction/Dennis Crapo ) AND DECISION
File No. SUB-03-11 )
)
I. SUMMARY OF DECISION
Hearing Matter: Application for a preliminary plat, in the MF-2 zoning district.
Summary of Decision: Return preliminary plat application to the applicant for modification or
correction to correct the inconsistency of the preliminary plat with the 40-foot minimum rear yard
setback required by the development agreement and the rezoning of the site to the MF-2 district,
and to consider whether the 10% open space requirement of the MF-2 district applies to the
preliminary plat application; and/or to provide the opportunity for amendment of the development
agreement by the City Council to allow for the preliminary plat, or a revised preliminary plat.
II. FINDINGS OF FACT
1. The application seeks approval of the preliminary plat of 4th Avenue Townhomes, to
subdivide approximately 3.77 acres of land into 41 lots for townhouse dwellings; in the
Multifamily High Density Residential (MF-2) district zoning designation.
2. The site is located along the south side of Fourth Avenue, approximately 1,000 feet east of
the intersection of Sullivan Road and Fourth Avenue, and approximately 1,200 feet west of the
intersection of Rotchford Drive and Sullivan Road; in Spokane Valley, Washington.
3. The site is currently referenced as County Assessor's tax parcel no. 45242.9032; and is
legally described on the preliminary plat map of record. The existing residence located on the site
is addressed at 15818 E. 4th Avenue.
4. The applicant for the proposal is Diamond Rock Construction/Dennis Crapo; with a mailing
address of 2602 N. Sullivan Road, Spokane Valley, WA 99037. The site owners are Dennis
Crapo and Melissa Crapo, at the same address. The applicant's representative is Whipple
Consulting Engineers, Inc., c/o Todd Whipple.
5. On August 4, 2011, the applicant submitted a complete application for the proposed
preliminary plat to the City Community Development Department ("Department").
6. On October 21, 2011, the Department issued a Determination of Nonsignificance (DNS) for
the application, under Chapter 21.20 of the Spokane Valley Municipal Code (SVMC). The DNS
was not appealed.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 1
7. On November 28, 2011, the applicant submitted a revised preliminary plat map. The Hearing
Examiner conducted a site visit on November 30, 2011.
8. On December 1, 2011, the Hearing Examiner held a public hearing on the application. The
notice requirements for the public hearing were met.
9. The following persons testified at the public hearing:
Karen Kendall, Assistant Planner Todd Whipple
City Community Development Department Whipple Consulting Engineers, Inc.
11707 E. Sprague Avenue, Suite 106 2528 N. Sullivan Road
Spokane Valley, WA 99206 Spokane Valley, WA 99216
Robert Harris Don Spoerhase
855 S. Shelley Lake Lane 505 S. Moore Lane
Spokane Valley, WA 99037 Spokane Valley, WA 99037
Bill Martin David Ertel
811 S. Shelley Lake Lane 805 S. Shelley Lake Lane
Spokane Valley, WA 99037 Spokane Valley, WA 99037
10. The following exhibits were submitted at the public hearing:
Exhibit 14: Staff Report and Recommendations to the Hearing Examiner
Exhibit 15: Revised preliminary plat map, submitted on 11-28-11
Exhibit 16: Street and drainage plans (7 pages) for project, dated 10-11-11
Exhibit 17: Notice of community meeting for proposed 4th Avenue Comprehensive Plan
Amendment, scheduled for 9-22-09
11. Exhibits 14 and 15 were submitted by the Department, Exhibit 16 was submitted by Todd
Whipple, and Exhibit 17 was submitted by Bill Martin. Exhibits 1-13 consist of the Staff Report
prepared by the Department for the application, and attachments thereto.
12. The Hearing Examiner heard the application pursuant to SVMC 18.20; and the Hearing
Examiner Scheduling Rules and Rules of Conduct, as codified in Appendix B of the Uniform
Development Code (UDC), a part of the SVMC.
13. The Hearing Examiner takes notice of the City Comprehensive Plan, the SVMC, the Spokane
County Standards for Road and Sewer Construction (adopted by City), other applicable
development regulations, and prior land use decisions in the vicinity.
14. The Hearing Examiner takes notice of City Ordinance Nos. 09-008, 09-015, 09-039, 09-040
and 10-004.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 2
15. The record includes the documents in the application file at the time of the public hearing, the
documents and testimony submitted at the public hearing, and the items taken notice of by the
Hearing Examiner.
16. The site is approximately 3.77 acres in size, rectangular in shape, and relatively flat in
topography. The property slopes down gently from south to north, at a maximum slope of 6%.
17. The northeast corner of the site is improved with a single-family dwelling, and associated
accessory buildings. The remainder of the site consists of an agricultural field.
18. The preliminary plat map of record ("map") submitted on November 28, 2011 illustrates or
specifies the following information regarding the preliminary plat:
a. The map illustrates division of the site into 41 lots for townhouse dwellings. This
includes a total of eight (8) buildings, with each building containing 3-6 attached units. The
individual lots range from 2,322 square feet to 3,840 square feet in size, range from 25 feet to 37
feet in width, and range from 93 feet to 118 feet in length.
b. The map illustrates an internal private road extending southerly through the site to a cul-
de-sac in the south end of the site, and then turning east and continuing to the east property line.
The private road has a paved width of 30 feet, a width between curbs of 33 feet, and a total width of
38 feet.
c. The map illustrates five common area tracts (A-E), totaling 40,661 square feet in area.
Tract A is a 714-square foot area reserved for fire access, and to provide a driveway access to the
internal private road for Lot 1, Block 2. Tract E is a 28,717-square foot area reserved for the
internal private road, and Tracts B-D are drainage tracts totaling 11,230 square feet in area.
d. The map illustrates a 20-foot wide driveway and fire easement beginning to extend offiste
to the west from the fire access planned in Tract A of the preliminary plat. The map shows the
proposed dedication of four (4) feet of the site along its northerly border, for right of way purposes.
e. The map illustrates individual driveways for the units planned on three (3) of the lots in
the preliminary plat, shared driveways accommodating two (2) attached units for the remaining lots
in the preliminary plat, and the installation of sidewalk along the private road and public road
frontages of the lots in the preliminary plat.
f. The map specifies a minimum rear yard setback of 20 feet for 17 lots from the east
property line of the site adjacent to Shelley Lake PUD final plat located to the east, a "typical"
minimum side yard setback of five (5) feet from the Shelley Lake PUD for Lot 9, Block 2 of the
preliminary plat, and a minimum rear yard setback of 10 feet along the south and west borders of
the preliminary plat.
g. The map illustrates a minimum side yard setback of six (6) feet from the respective lot
lines located between separate buildings, a "typical" minimum 5-foot side yard setback from other
lot lines, a minimum 20-foot front yard setback from dwelling unit garages, and a minimum 15-foot
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 3
front yard setback for the remaining attached units. The map illustrates a flanking street yard
setback of 15 feet for Lot 1, Block 3 of the preliminary plat.
h. The map illustrates a 10-foot wide strip of Type I landscaping along the south border of
the site; except for Tract D and Lot 9, Block 2. Such landscaping is intended to serve as a buffer
between the project and the Shelley Lake PUD. The map illustrates a proposed gate across the
private road near Fourth Avenue, and the removal of the existing improvements on the site.
19. The environmental checklist submitted by the applicant provides the following information
regarding the proposed housing in the project:
a. Each townhouse dwelling unit would have 2-3 bedrooms, two (2) bathrooms, a kitchen
and other living spaces. Each unit would likely have a small front yard, and a backyard with
useable space that exceeds the minimum rear yard setback.
b. Each townhouse dwelling unit would be served by a 1-2 car garage, with some garages
configured as a "garage and a half'. Each unit would have parking for at least one (1) car in the
garage, and one (1) in the driveway;
c. The roadway adjacent to each lot can accommodate 3-4 parked vehicles. Additional guest
parking would be provided in the interior cul-de-sac of the private road, or on the street as allowed.
d. The tallest structures in the project would be limited to 35 feet, within a 100-foot distance
of the Shelley Lake PUD lying to the east. Building heights would otherwise be limited to a
maximum of 50 feet.
20. The applicant advised that each townhouse unit in the development would be "articulated"
from each other, and would vary in depth from the front property line between 25 feet and 41 feet.
This refers to front yard setback. See letter dated October 10, 2011 from Todd Whipple to the
Department, and testimony of Todd Whipple.
21. The applicant plans to extend the proposed secondary access and 20-foot fire lane west and
north from Tract "A"tract, through the site owner's adjacent land, to Fourth Avenue. The applicant
has been in correspondence with Central Valley School District, regarding extending a possible
pedestrian access from the site to the school campus. See Exhibits 5 and 14.
22. The site owners own approximately 8.53 acres of land lying directly west of the site along the
south side of Fourth Avenue, for a total ownership of 11.3 acres. Such land is divided into seven
(7) parcels; each of which is improved with a single-family dwelling and associated accessory
buildings, except for one (1) vacant parcel. See aerial photo in Exhibit 14.
23. In 2008, the site owners requested the City to amend the Comprehensive Plan and zoning
designation for the 11.3 acres of land controlled by the site owners, including the current site, to the
High Density Residential category and the MF-2 zoning district; for proposed multifamily
development. Such action was identified as "CPA-01-09". See Exhibit 17.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 4
24. On May 12, 2009, the City separated its review of CPA-01-09 from other proposed
amendments to the Comprehensive Plan and associated rezones, and directed City staff to conduct
research on development agreements. See Exhibit 17, and City Ordinance No. 09-008.
25. On August 11, 2009, the City Council adopted interim development regulations in the SVMC
to allow the City to enter into development agreements with persons that owned or controlled real
property in the city, in conjunction with the adoption of a Comprehensive Plan amendment and an
associated rezone for the property that would allow certain development of the property; pursuant to
RCW 36.70B.015 through RCW 36.70B.210. See City Ordinance No. 09-015.
26. Following adoption of the interim development regulations, the City and the site owners
negotiated a draft development agreement; in consideration of the City Council's review of the
Comprehensive Plan and zoning amendments proposed by the site owners in CPA-01-09.
27. The draft agreement contemplated the site owners developing the 11.3 acres for 248
"multifamily" dwelling units; and included significant restrictions and requirements on
development of the east 120 feet of the current site, to provide a buffer from the single-family
homes in the Shelley Lake PUD located to the east. See Exhibit 17.
28. On December 15, 2009, the City Council, after conducting a public hearing on CPA-01-09,
adopted City Ordinance Nos. 09-039 and 09-040 for CPA-01-09.
29. The operative portions of Ordinance No. 09-039, in pertinent part:
a. Amended the Comprehensive Plan map "as set forth in "Attachment "A"...",
b. Described the Council's decision as changing the Comprehensive Plan category for the
11.3 acres from Low Density Residential "...to High Density Residential (HDR) associated with
development agreement...",
c. Authorized the City Manager to modify the Comprehensive Plan "...in a manner
consistent with this Ordinance as set forth in Attachment "A"...", and
d. Provided that the express intent of the City is that "...the responsibility for compliance
with the provisions of this ordinance shall rest with the permit applicant or their agents."
30. The operative portions of City Ordinance No. 09-040, in pertinent part:
a. Amended the Official Zoning Map of the City for the 11.3-acre area "...as set forth in
"Attachment "A"...",
b. Provided that the express intent of the City is that "...the responsibility for compliance
with the provisions of this ordinance shall rest with the permit applicant or their agents...", and
c. Authorized the City Manager to modify the Zoning Map "...in a manner consistent with
this Ordinance."
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 5
31. Section 1 of City Ordinance No. 09-040 stated that the purpose of such ordinance was "...to
amend the Official Zoning Map adopted through Ordinance No. 07-015 in order to permit the
property described herein to be used in a manner consistent with the same....". Section 4 of the
ordinance described the Council's decision as changing the zoning of the 11.3 acre area from the
Single-Family Residential District (R-3) "...to Multi family High Density Residential District (MF-
2) associated with development agreement."
32. City Ordinance Nos. 09-039 and 09-040 each included the following pertinent finding: "That,
with the approval of thee (sic) Development Agreement, attached hereto and this by reference
incorporated herein, specifically limiting certain development, the council amends the Planning
Commission's recommendation and rezones for the entire property as set forth below."
33. The Attachment "A" referenced in City Ordinance Nos. 09-039 and 09-040 illustrated the
location of the 11.3-acre area on a parcel map, and advised that the "recommendation" was to
change the Comprehensive Plan designation to the High Density Residential category of the
Comprehensive Plan, with a subsequent rezone of such acreage to MF-2.
34. On January 29, 2010, a copy of the fully executed development agreement between the City
and the site owners for the multifamily project proposed on the 11.3-acre area was recorded with the
County Auditor. The agreement was signed by the site owners on December 17, 2009, and was
approved by the City on January 28, 2010.
35. On February 23, 2010, the City Council permanently adopted the interim development
regulations for development agreements into the SVMC. See SVMC 19.30.015, and City
Ordinance No. 10-004.
36. The executed developer agreement appears to have the same provisions as the draft developer
agreement that was in place when the City Council adopted City Ordinance Nos. 09-039 and 09-
040, in CPA-01-09. See Exhibits 6 and 17. The executed agreement, among other provisions:
a. Specifically references the Comprehensive Plan and zoning amendments requested by the
site owners in CPA-01-09.
b. Defines the development project as the "...4'h Avenue Cherry Wood Apartments
consisting of 248 multi family units as set forth in Exhibit "B" thereto."
c. Advises in the recitals that the site owners agree that the portion of the project located
adjacent to the Shelley Lake development shall have reduced density, building height limited to that
for allowed for single-family homes, rear yard setbacks will be increased and Type I landscaping
and a site plan approved by the City as set forth in the provisions of the agreement
d. Advises in the recitals that the parties agree that the conditions set forth in the provisions
of the agreement are intended to mitigate specific direct impacts resulting from the reclassification
of the land to MF-2.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 6
e. Within the east 120 feet of the current site, restricts the number of units developed in the
project to a maximum density of 12 units per acre, or 21 "multifamily" units; imposes a maximum
building height of 35 feet; imposes a maximum building setback of 40 feet for "multifamily"
buildings from the east property line, as illustrated on sheet 2 of Exhibit `B" attached to the
agreement; and requires the installation of a 10-foot strip of Type I landscaping along the east
border of the site.
f. Requires development in the 120-foot restricted area to "substantially conform" to the site
plan in sheet 2 of Exhibit"B", and to otherwise comply with City development regulations.
g. Requires any amendments to the agreement to be approved by the City after a public
hearing.
h. Provides that final project review, including the location of buildings and improvement, is
subject to administrative site plan review according to City development regulations, and that the
agreement runs with the land.
i. Used the maximum housing density of 12 units per acre applicable in the Multifamily
Medium Density Residential (MF-1) district, the 35-foot maximum building height applicable to
single-family dwellings in the R-3 district, the typical 40-foot rear yards of the adjoining single-
family homes in the Shelley Lake PUD, and the landscaping requirements set forth for multifamily
dwellings in SVMC 22.70.30 as guides in buffering the proposed development from the adjoining
single-family lots in the Shelley Lake PUD.
37. Page 1 of Exhibit `B" attached to the development agreement includes a parcel map showing
the location of the 11.3 acres controlled by the site owners, references the project as the "4th &
Sullivan Apartments", shows the 120-foot area of the site where housing density is restricted,
indicates that 248 units can be developed on the 11.3 acres under the maximum residential density
permitted in the MF-2 district of 22 units per acre, indicates that a maximum of 21 dwelling units
are allowed in the 120-foot area under the maximum density of 12 units per acre permitted in such
area, and indicates that the remaining 227 units of the 248-unit project are allowed on the remainder
of the 11.3 acres.
38. Page 2 of Exhibit "B" attached to the development agreement shows a 40-foot minimum
setback of a schematic building in the project, measured westerly from an existing 6-foot sight-
obscuring fence bordering the Shelley Lake PUD; a 35-foot height for the building; and a 10-foot
strip of Type I landscaping along the east edge of the site, to be planted with trees that will mature
to 35 feet or higher. The page also shows a schematic existing single-family home located on the
west side of Moore Lane in the Shelley Lake PUD, such home being setback 40 feet from the 6-foot
high fence bordering the west border of the Shelley Lake PUD, and such home having a building
height of 35 feet.
39. The land lying west of the site, between the 11.3 acres controlled by the site owners and
Sullivan Road, south of Fourth Avenue; and the land lying north of Fourth Avenue, east of Sullivan
Road, in the vicinity of the site; is designated in the High Density Residential category of the
Comprehensive Plan, zoned MF-2, and developed with multifamily dwellings. This does not
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 7
include some apparent commercial zoning and land uses located at the east corners of the
intersection of Sullivan Road and Fourth Avenue. In addition, some single-family homes are found
on small acreage parcels a short distance northeast of the site, on the north side of Fourth Avenue.
See land use and aerial maps in Exhibit 14, and p. 2 of Staff Report.
40. The land lying southerly of the site, between Sullivan Road and Rotchford Drive, is designated
in the Low Density Residential category of the Comprehensive Plan, zoned in the Single-Family
Residential (R-3) District, and contains Central Valley High School.
41. Ball fields for the high school are found directly south and southeast of the site, the football
field for the high school is found directly southwest of the site, and the buildings for the high school
are found west and south of the football field. The north border of the high school property in the
vicinity of the site is bordered by chain link fencing.
42. The land lying east of the site, between Fourth Avenue and the high school, is designated in
the Low Density Residential category of the Comprehensive Plan, zoned R-3, and improved with
single-family residences in the Shelley Lake PUD ("Reflections Development"). Additional
subdivisions in the overall Shelley Lake development are located on the east side of Rotchford
Drive in the area, on land zoned R-3.
43. The single-family homes located on the lots abutting the site in the Shelley Lake PUD are
generally 1.5 stories, 35 feet or less in height, and set back approximately 35 feet from the site. A
6-foot high sight-obscuring fence is located along the west boundary of the Shelley Lake PUD,
adjacent to the site. See testimony of Robert Harris, letter dated 9-20-11 from Bruce Karels, Exhibit
17, Hearing Examiner site visit comments, and County Assessor parcel information in file.
44. Sprague Avenue to the north, and Sullivan Road to the northeast, comprise major commercial
corridors in the area. Fourth Avenue is fully improved adjacent to the Shelley Lake PUD, and
adjacent to the existing multifamily developments located along such street.
45. The City Arterial Street Plan designates Sullivan Road and Sprague Avenue as Principal
Arterials, Fourth Avenue east of Sullivan as a proposed Collector, and Rotchford Drive as a
proposed Collector. See Map 3.1 in Comprehensive Plan.
46. Substantive comments in opposition to the proposed preliminary plat lat were submitted by
Robert Harris, the president of the Shelley Lake Homeowners Association; and by Bruce Karels,
Don Spoerhase, Bill Martin and David Ertel. David and Sharon McHugo, Joseph Cucinotta,
Stanley and Margaret Olson, and Robert White submitted "party of record" slips indicating they
were opposed to the proposal. See testimony of Harris, Spoerhase, Martin and Ertel; letters
submitted by Harris and Ertel; and party of record slips.
47. Donna Grogran and Bruce Karels reside directly east of the site, along the west side of Moore
Lane; in the Shelley Lake PUD. Don Spoerhase resides one (1) block east of the site, along the east
side of Moore Road; in the Shelley Lake PUD. The other project opponents reside along Shelley
Lake Lane, in the Shelley Lake developments located east of Rotchford Drive. See County
Assessor parcel information, and County Assessor parcel map, in file.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 8
48. Project opponents commented or expressed concerns that execution of the developer
agreement was integral to the rezoning of the 11.3 acres controlled by the site owners to MF-2, the
agreement was executed to mitigate land use impacts and provide land use transition to the
adjoining homes located in the Shelley Lake PUD, the proposed subdivision substantially changes
the development proposed in the east 120 feet in the site in a manner that is inconsistent with the
development agreement and will have greater adverse impacts on the adjoining homes in Shelley
Lake PUD, the changes to the project have the appearance of a "bait-and-switch" effort by the
applicant to avoid the restrictions in the development agreement after receiving the benefit of a
rezone of the 11.3 acres to MF-2, the 2-story townhouses with decreased rear yard setbacks in the
preliminary plat will look down on 1-story ranchers and two (2) split level homes located to the
east, the changes in the project will increase the loss of privacy to such homes and decrease
transition between such homes and the high density 2-story housing planned by the applicant, the
changes will lower the value of the existing single-family homes located to the east, a large number
of existing apartments (654) already exist along Fourth Avenue, 256 additional multifamily units
are being developed along the east side of Conklin (connecting to Rotchford Drive) to the northeast,
the land on the north side of Fourth Avenue where apartments have not yet been developed is zoned
MF-2 and additional multifamily units will likely be developed there, the overall increases in
multifamily development will generate significant increases in traffic and noise, and the townhouses
developed in the project could be rented instead of owner occupied.
49. Todd Whipple, the applicant's consulting engineer and representative, testified at the hearing
that townhouses were always planned for the east 120 feet of the site; the process for changing the
Comprehensive Plan designation and zoning, and approval of the development agreement, for the
11.3 acres owned by the site owners was open and public along every step of the way; the applicant
prefers to develop single-family attached townhouses on individual lots, instead of "commercial"
multifamily apartments; the development agreement executed in conjunction with CPA-01-09
contemplates the development of single-family units on the site; the requirement in the development
agreement that multifamily buildings be setback only 40 feet from the east property line does not
apply to the preliminary plat, because only single-family units are being proposed; and the applicant
had no intent to engage in a "bait-and-switch" technique, in developing its land adjacent to the
Shelley Lake PUD. See testimony of Todd Whipple.
50. Todd Whipple testified that he agreed with the analysis of the current application, and the
conditions of approval for the preliminary plat, contained in the Staff Report submitted by the
Department; except for the requirement that the 10-foot landscaping strip be placed in a separate
tract and maintained by the homeowner's association in the final plat.
51. Todd Whipple testified that homeowner's associations generally do not do a good job of
maintaining common open space tracts, based on several previous plats he had been involved in;
and individual abutting homeowners in the final plat would do a better job of landscape
maintenance if the strip was part of their individual lots. Whipple advised that the homeowners
association in the final plat could be granted an easement in the 10-foot strip to maintain the
landscaping, if not done by the abutting owners; and that the minimum rear yard setback provided
along the east edge of the site in essence provided a 20-foot strip of Type I landscaping in such
location.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 9
52. Todd Whipple testified that the design of the dwelling units on the site was basically the same
as that originally planned for the multifamily units contemplated in the development agreement,
except that the units would now be located on individual lots and lie closer to the east property line.
The earlier design is illustrated in a handout that the applicant distributed at a September 22, 2009
community meeting conducted by the site owners on the status of the development agreement and
CPA-01-09, prior to the City Council's final consideration and approval of CPA-01-09 on
December 15, 2009. See Exhibit 17.
53. Todd Whipple testified that the applicant may need to modify Lot 9, Block 2 in the
preliminary plat to comply with condition #1 of the Department contained on p. 9 of the Staff
Report; which requires the installation of a 10-foot strip of Type I landscaping on the east edge of
such lot, in compliance with the development agreement.
54. Todd Whipple testified that the current building plans for the project place the easterly row of
townhouses approximately 25-30 feet from the east border of the site adjacent to the Shelley Lake
PUD.
55. Todd Whipple submitted street and drainage plans for the project at the public hearing. Such
plans illustrate required improvements to Fourth Avenue, the improvement of the private road in the
project, the extension of the access easement and fire lane offsite, and the installation of stormwater
ponds on Tracts B and D in the preliminary plat. See Exhibit 16.
56. The Staff Report sets forth most of the policies of the Comprehensive Plan that are relevant to
the current application. The following additional policies appear applicable:
a. Policy LUP-1.2 recommends 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.
b. Policy LUP-1.5 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.
c. 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.
d. Policy LUP-2.5 recommends that special development techniques such as zero lot 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.
57. The MF-2 zoning district permits single-family, townhouse, duplex, multifamily and
congregate dwellings; convalescent and nursing homes; community hall, lodges and clubs;
churches and other religious facilities; limited community residential facilities; schools; and
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 10
certain other types of residential and institutional uses. See SVMC 19.120 and included
Appendix 19-A.
58. SVMC 19.40.080 states that the MF-2 district is intended to provide a range of housing
types with densities not to exceed 22 units per acre; multifamily residential zones should be used
as transitional zoning between higher intensity land uses to medium and lower density single-
family neighborhoods; and high density residential areas should be located near services and high
capacity transit facilities or transit routes. SVMC 19.40.070 states that the MF-1 district is
intended to provide housing densities not to exceed 22 units per acre; and should be used as
transitional zoning between higher intensity land uses and lower density single-family
neighborhoods.
59. In the MF-2 district, the maximum building height is 50 feet, the minimum rear yard setback
is 10 feet, the minimum lot width is 20 feet, and the minimum lot depth is 80 feet. In the R-3
district, the maximum building height is 35 feet, the minimum rear yard setback is 20 feet, the
minimum lot width is 65 feet, and the minimum lot depth is 90 feet. See Table 19.40-1 in SVMC
19.40.020.
60. The SVMC defines "dwelling, townhouse" as: "A single-family dwelling unit constructed in
groups of three or more attached units in which each unit extends from foundation to roof open on
at least two sides." The term "attached" is defined as: "Structurally dependent, sharing a common
or party wall for not less than 50 percent of the length of the principal structure(s). A breezeway is
not a common wall." See Appendix A-4 of UDC,part of SVMC.
61. The SVMC defines "dwelling, single-family" as: "A building, manufactured or modular
home or portion thereof designed exclusively for single-family residential purposes, with a
separate entrance and facilities for cooking, sleeping and sanitation."
62. The SVMC defines "dwelling, multifamily" as: "A building designed for occupancy by three
or more families, with separate entrances and individual facilities for cooking, eating and
sleeping."
63. The individual units in the proposed preliminary plat generally meet the definition of
"dwelling, single-family" in the SVMC, and the buildings in the preliminary plat generally meet
the definition of"dwelling, multifamily" in the SVMC. However, because the units in the project
meet the more specific definition of "dwelling, townhouse", they are considered townhouse
dwellings under the SVMC.
64. The 21 dwelling units planned by the site owners in the east 120 feet of the site, at the time
the City Council reviewed and approved CPA-01-09, had the same 2-story townhouse design as the
housing planned for the current preliminary plat. See Exhibit 17, and testimony of Todd Whipple.
65. The project design submitted by the site owners at the community meeting held on September
22, 2009 showed the 21 townhouse dwellings planned in the east 120 feet of the site grouped in
three (3) attached buildings, each containing seven (7) attached units; with each building separated
by a side yard setback of several feet, having a minimum rear yard of 40 feet facing to the east, and
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 11
a maximum building height of 35 feet. The design did not disclose whether the townhouses would
be located on separate lots. See Exhibit 17.
66. The design of the 21 townhouse dwellings in the east 120 feet of the current project includes
four (4) attached buildings, with each building containing attached 4-6 units; three (3) of the
buildings fronting to the west, and having minimum rear yards setbacks of 20 feet and actual rear
yards of 25-30 feet facing to the east; one (1) of the buildings fronting to the north, and having a
"typical side yard setback of five (5) feet and an apparent side yard setback of approximately 12
feet to the east; the buildings having a maximum height of 35 feet; and the attached units located
on individual lots. See Exhibit 17,preliminary plat map and testimony of Todd Whipple.
67. Both the draft and the executed development agreement described the project proposed for
the site as the development of "multifamily" dwellings on the site, including a maximum of 21
units on the east 120 feet of the site. At the time the City Council approved the amendments
requested in CPA-01-09 in December of 2009, and the City approved and recorded the
development agreement in January of 2010, the site owners represented the townhouses planned on
the east 120 feet of the site as "multifamily" dwellings. See Exhibit 17.
68. The condition in the agreement that no "Multi family building" be located closer than 40 feet
from the east property line adjacent to the Shelley Lake PUD, and the limitation on density in the
east 120 feet of the site to 21 "multifamily units" was intended to apply to the 11 townhouse units
planned by the applicant in the east 120 feet of the site; regardless of their technical definition
under the SVMC as townhouse dwellings, a type of single-family dwelling. The location of the 21
townhouse units on individual lots in the current preliminary plat does not alter such finding.
69. The evidence is clear, cogent and convincing in the record that both the City and the site
owners in the development agreement, and the rezone of the site to the MF-2 district, believed that
the townhouses dwellings proposed by the site owners in the east 120 feet of the site at the time
were a type of"multifamily dwelling", though they were technically defined as a type of single-
family dwellings in the SVMC.
70. The development agreement requires substantial conformance to the site plan attached to the
agreement, as Exhibit `B". The site plan in Exhibit B shows or specifies that development of the
east 120 feet of the site is limited to a maximum of 21 units, a maximum building height of 35 feet,
and a minimum setback from the east property line of 40 feet; and requires installation of a 10-foot
strip of Type I landscaping along the east property line.
71. Placement of the 41 townhouses on individual lots, the different numbers of units grouped in
the townhouse buildings, and the revised orientation of the townhouse building proposed in the
southeast portion of the preliminary plat may all be viewed as minor changes to the site plan that
can be approved administratively by the Department.
72. The minimum rear yard setback of 20 feet from the east property line indicated for 17 of the
proposed townhouses on the preliminary plat map, the applicant's plan to place these 17
townhouses at distance of 25-30 feet from the east property line, the 5-yard "typical" side yard
setback indicated for Lot 9, Block 2 on the preliminary plat map, and the distance of approximately
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 12
12 feet illustrated between the townhouse planned on such lot and the east property line of the site
are not in"substantial conformance"to the site plan attached to the development agreement.
73. Modification of the minimum 40-foot setback required by the development agreement from
the east property line of the site would require the approval of a written amendment to the
development agreement, which can only be approved by the City Council after appropriate notice
and a public hearing. See paragraph 3.4 on p. 5 of developer agreement, in Exhibit 6.
74. SVMC 19.30.015 authorizes the Department to approve minor modifications to the
development plan proposed in a development agreement. Such modifications must conform to the
terms of the development agreement and cannot reduce setback requirements; reduce landscaping,
buffering or open space areas, or result in the increase in height of any structure; result in a change
in ingress or egress; cannot increase any adverse impacts or undesirable effects; or significantly
alter the project. Such provisions implement the provisions for development agreements contained
in RCW 36.70B.015 through RCW 36.70B.210
75. The preliminary plat significantly reduces the 40-foot setback from the east property line
required by the development agreement, and eliminates the landscaping required by the
development agreement with regard to Lot 9, Block 2.
76. The preliminary plat increases the adverse impacts of site development on the adjoining
single-family homes in the Shelley Lake PUD that the development agreement sought to mitigate;
by placing a row of 2-story buildings with significant bulk, and narrow spacing between buildings,
at significantly closer distances to such homes than allowed by the development agreement.
77. SVMC 19.40.020(A), in Table 19.40-1, requires 10% of the gross area of a development in
the MF-2 zoning district to be set aside in "open space", in the manner specified in SVMC
19.40.020(E).
78. The Staff Report, and the preliminary plat application and map, do not address the
applicability of the 10% open space requirement of the MF-2 district to the preliminary plat. The
specification in SVMC 19.40.020(A)(1)(a) of certain requirements in Table 19.40-1 applicable to
attached single-family dwellings, including townhouse dwellings, on individual lots in the various
residential districts, without reference to the 10% open space requirement set forth in Table 19.40-
1 SVMC and 19.40.020(E), could potentially be read to exempt townhouse and other attached
single-family dwelling units from the open space requirement; but this is unclear absent a code
interpretation by the Department in the record.
79. The SVMC defines "open space" as: "An area accessible to and permanently reserved for
the common use and enjoyment of the occupants of residential uses for landscaping, leisure and
recreational purposes. Open space does not include area devoted to parking, accessory uses,
landscaping required pursuant to this code, drainage easements, border easements or building
separation required under adopted building codes." See Appendix A-4 of UDC, part of SVMC
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 13
80. SVMC 19.40.020(E)(1) provides that required open space must be accessible to all
residential units, and be suitable for active and passive recreational purposes; may not include
parking areas; and may not include required yards, landscaped areas or spacing between structures.
81. SVMC 19.40.020(E)(2-3) authorize a reduction in the amount of required open space by up
to 25% where two (2) of certain specified amenities are provided; including play or sport courts,
playgrounds with equipment, trails or pedestrian walkways not required for access to residential
units or parking, swimming pools, gazebos, and clubhouses. Where stormwater facilities are of
sufficient size and designed as amenities, the required open space may be reduced by an additional
25%. In no event can the required open space be reduced by more than 50%.
82. The gross area of the site is 3.77 acres (164,195 square feet), requiring the potential
reservation of 16,420 square feet. The dedication of four (4) feet of the site along its north border,
representing an area of 1,024 square feet, may reduce the open space requirement, if applicable, to
approximately 15,400 square feet.
83. None of the common area tracts reserved in the preliminary plat meet the definition or
requirements for "open space" in the MF-2 district. The private road area in Tract E, the driveway
and fire access in Tract A, and the drainage areas in Tracts B-D are not intended for passive or
recreational purposes, and do not include any of the qualifying amenities. See street and drainage
plans in Exhibit 16, response to question 12(b) in environmental checklist, and p. 5 of Staff Report.
84. The SVMC does not require landscaping in the MF-2 district. See Table 22.70-2 in SVMC
22.70.030. Accordingly, the 10-foot strip of Type I landscaping required along the east border of
the site by the development agreement, which has an area of only 6,425 square feet, could help
meet the open space requirement, if applicable, if it is placed in a common area tract. However,
access would have to be provided from all the units in the project to such tract, to meet open space
requirements. The drainage areas could also potentially be designed with recreational facilities.
85. Aside from the inconsistencies of the preliminary plat with the development agreement, and
potential inconsistency with the open space requirement applicable in the MF-2 district, the
application conforms to the Comprehensive Plan, the applicable zoning and subdivision
regulations of the SVMC, and other applicable provisions of the SVMC and other development
regulations; as set forth in the Staff Report.
Based on the above findings of fact,the Hearing Examiner enters the following:
CONCLUSIONS OF LAW
1. Any finding of fact indicated above that is a conclusion of law shall be deemed such.
2. The rezone of the site to the MF-2 zoning district by the City Council in 2009 was approved
in conjunction with a development agreement, which agreement was binding on the site owners
and the City in the development of the site under the MF-2 district.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 14
3. Pursuant to RCW 36.70B.015 through RCW 36.70B.210, SVMC 19.30.015, and City
Ordinance No. 09-040 the rezone of the site, in conjunction with the development agreement,
limited development of the site under the MF-2 district to the specific development described in
the agreement, and required compliance with the restrictions on such development specified in the
agreement; subject to minor modifications to the site plan attached to the agreement, which can be
approved by the Department administratively as long as they comply with the restrictions on
development contained in the agreement.
4. The restrictions and requirements on development in the east 120 feet of the site specified in
the development agreement; including the 40-foot minimum rear yard setback, the maximum 35-
foot building height, the limitations on density and number of units, and the 10 feet of Type I
landscaping; were intended by the City and the site owners to apply to the proposed construction of
townhouses in the east 120 feet of the site, even though the City and the applicant mistakenly
regarded the townhouse dwellings as "multifamily" dwellings. The preliminary plat fails to
comply with the provision in the agreement that requires the housing constructed in the east 120
feet of the site to be set back 40 feet from the east property line.
5. Regardless of the mutual mistake by the parties in characterizing the townhouse dwellings as
"multifamily" dwellings, the preliminary subdivision does not substantially conform to the site
plan attached to the development agreement, as required by the development agreement; because it
does not provide for the 40-foot building setback from the east property line illustrated on the site
plan.
6. The reduced rear yard setback proposed along the east boundary of the site in the preliminary
plat cannot be approved without a written amendment to the development agreement that is
approved by the City Council, after a public hearing and appropriate noticing. See SVMC
19.30.015, RCW 36.70B.170 through 36.70.210, City Ordinance No. 09-040, and development
agreement.
7. The preliminary plat does not comply with the conditional zoning of the site under the MF-2
district, because it fails to comply with the development agreement attached to such zoning.
8. The 10% open space requirement of the MF-2 zoning district may apply to the preliminary
plat, but its applicability requires an interpretation of SVMC 19.40.020 by the Department.
9. Pursuant to RCW 58.17.140, the Hearing Examiner has authority to approve or disapprove
the preliminary plat application, or return the application to the applicant for modification or
correction.
10. Because there is potential for modifying the preliminary plat to comply with the requirements
of the development agreement, or amendment of the development agreement by the City Council
to allow the preliminary plat to be designed as currently proposed or modified in some form, the
application should be returned to the applicant for modification or correction. 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.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 15
11. 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; to correct the
inconsistency of the preliminary plat map of record with the 40-foot minimum rear yard setback
required by the development agreement, and the potential inconsistency with the 10% open space
requirement in the MF-2 district; and/or to allow the opportunity for amendment of the
development agreement by the City Council for the preliminary plat or a revised preliminary plat.
Following modification of the preliminary plat, and/or amendment of the development
agreement by the City Council, a continued public hearing or new public hearing, shall be
scheduled before the Hearing Examiner on the preliminary plat or revised preliminary plat;
subject to any need to circulate revisions to the application for comment by public agencies, and
subject to appropriate notice of the hearing being provided.
DATED this 19th day of December, 2011
SPOKANE VALLEY HEARING EXAMINER
Al
Michael . Dempsey, WSBA#8235
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 16
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
December 19, 2011. The date of issuance of the Hearing Examiner's decision is therefore
December 22, 2011, counting to the next business day. THE APPEAL CLOSING DATE IS
JANUARY 12,2011.
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 Karen Kendall 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.
Hearing Examiner Findings, Conclusions and Decision File No. SUB-03-11 Page 17