APP-01-09 Decision CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Appeal of an Administrative Interpretation )
issued by the City Community Development )
Department, regarding the Sprague and ) FINDINGS OF FACT,
Appleway Corridors Subarea Plan (SARP); ) CONCLUSIONS OF LAW,
Appellant: Whipple Consulting Engineers, Inc. ) AND DECISION
File No. APP-01-09 )
)
I. SUMMARY OF DECISION
Hearing Matter: Appeal of an administrative interpretation issued by the Community
Development Department, regarding the MUA zone of the SARP.
Summary of Decision: Deny the appeal, and uphold the administrative interpretation.
II. FINDINGS OF FACT
Procedural Information
1. On November 30, 2009, the City Community Development Department ("Department")
issued a Notice and Order of Zoning Violation to Harlan D. Douglass ("Douglass"), the owner of
property located at 12606 E. Sprague Avenue, Spokane Valley, Washington; and to Elephant
Boys Boat Store ("Elephant Boys"), a commercial tenant on the property; to discontinue the boat
sales and service business being conducted on the property.
2. On December 2, 2009, the Department received a letter dated November 30, 2009 from
Todd Whipple of Whipple Consulting Engineers, Inc. ("Whipple"), which requested that the
Notice of Order of Violation be rescinded by the Department. The letter contended that boat
sales were a permitted use, and not a specifically prohibited use, in the Mixed Use Avenue
District Zone ("MUA zone") of the City Sprague and Appleway Corridors Subarea Plan(SARP).
Ii
3. On December 15, 2009, Kathy McClung,the Director of the Department("Director"),
issued an administrative interpretation in response to the letter from Whipple.
4. The Director found in the administrative interpretation that"boat sales" falls under the
category of"Vehicle Sales" in the SARP regulations; "Vehicle Sales" are a separate category of
use from"Medium Box Commercial Sales and Services" in the SARP regulations; "Vehicle
Sales" and"Medium Box Commercial Sales and Services" are separately listed as permitted in
the Gateway Commercial Avenue District Zone ("GCA zone") of the SARP; "Medium Box
Commercial Sales and Services" are listed as permitted in the MUA zone, but"Vehicle Sales"
are not; the listing of certain uses as prohibited (i.e. used vehicle sales, full service restaurants)
14
in the MUA zone was not intended to be inclusive of all uses that are prohibited in the zone, but
was done for special emphasis to eliminate any question that such uses are prohibited; and the
listing of certain categories of uses as permitted in the MUA zone was not intended to be
inclusive of all uses permitted in the zone, but was intended to identify the type of uses that are
HE Findings, Conclusions and Decision APP-01-09 Page 1
allowed or not. Based on such findings, the Director concluded in the interpretation that
"Vehicle Sales", and the included use of"boat sales", are prohibited in the MUA zone.
5. The administrative interpretation advised that it was an administrative determination
subject to appeal under Spokane Valley Municipal Code (SVMC) 17.90; and that Whipple also
had the option to appeal the Notice and Order of Violation to the Hearing Examiner or enter into
a Voluntary Compliance Agreement under SVMC 17.100, as well as the options listed in a letter
dated September 24, 2009 from Scott Kuhta of the Department.
6. On December 29, 2009, Whipple timely submitted a completed application to the
Department, to appeal the administrative interpretation to the Hearing Examiner.
7. Whipple, the applicant for the administrative determination and the appellant, has a mailing
address of Whipple Consulting Engineers, Inc., do Todd Whipple, 2528 N. Sullivan Road,
Spokane Valley, WA 99218. Douglass, the owner of the site, has a mailing address of Harlan
D.Douglass, 815 E. Rosewood Ave., Spokane, WA 99208.
8. The appeal application advised that Whipple represents the owner(i.e. Douglass) of the
property located at 12606 E. Sprague Avenue, on which the Elephant Boys Boat Store use is
being operated. The application asserted that Whipple had standing to appeal the administrative
interpretation under SVMC 17.90.030, because the administrative determination was directed to
Whipple as the applicant and Douglass as the owner; and described the site and business in
detail.
9. The appeal application contended that the types of boats sold from the site were commonly
sold in sporting good stores, and may also be found in"big and medium box warehouse retail"
stores; Elephant Boys maintains a separate offsite warehouse, and a second retail outlet located
outside the City; the listing of permitted uses in the various zones of the SARP was not intended
to be all inclusive; and the SARP adopts a more flexible, and much different type of regulation of
the built environment than traditional zoning codes or the zoning regulations applicable to other
areas of the City under the SVMC, focusing more on the form of the built environment than the
use.
10. The appeal application also contended that there is no definition of"vehicle sales" in the
SVMC, and no definition of"boats" as "vehicles"; the Elephant Boys business could just as
easily be characterized as a"medium box"retail category as "vehicle sales", because it operates
from a medium box retail building and involves the sale of large-scale goods that are consistent
with examples of uses specifically permitted in the MUA zone (i.e. sporting goods, auto parts,
appliances, outdoor accessories, hardware and home improvement stores, etc.); the Elephant
Boys use is much more consistent with the "medium box"retail environment of the MUA zone
than the "auto-row" environment of the GCA zone, from an operational and land use
perspective; the specific listing of"used vehicle sales" in lieu of"vehicles sales" as a prohibited
use in the MUA zone impliedly presumes that other types of boat sales are permitted in the zone,
if they are otherwise consistent with the use and form based elements of the zone under the
SARP; the Elephant Boys use is consistent with the use and form based elements of the MUA
zone, meets the intent and purpose of the zone, and should be allowed in the zone; and to limit a
HE Findings, Conclusions and Decision APP-01-09 Page 2
use such as Elephant Boys to only the GCA zone of the SARP, as suggested in the administrative
interpretation, is inconsistent with the facts asserted in the appeal application and the intent of the
SARP.
11. On March 11, 2010, the Hearing Examiner conducted a hearing on the administrative
appeal. The Examiner conducted site visits on March 9, 2010 and March 23, 2010,
12. The appeal hearing was conducted pursuant to SVMC 17.90 and 18.20; and the Rules of
Procedure for the Hearing Examiner and the Conduct of Hearings, adopted in Appendix B of the
City Uniform Development Code (UDC). The UDC is part of the SVMC.
13. The following persons testified at the hearing:
Lori Barlow, Associate Planner Cary Driskell, Assistant City Attorney
City Community Development Department City of Spokane Valley
11707 E. Sprague, Suite 106 11707 E. Sprague, Suite 106
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Joseph Delay Tyler Peterson
Attorney at Law 2803 S. Teka Street
601 W. Main St., Suite 1212 Spokane, WA 99203
Spokane, WA 99201
Todd Whipple, P.E. Andrew Worlock
2528 N. Sullivan 928 W. 18th
Spokane Valley, WA 99206 Spokane, WA 99203
Bob Conley
23326 E. 2nd Ave.
Liberty Lake, WA 99019
Items in Record
14. The Hearing Examiner takes notice of the City of Spokane Valley Comprehensive Plan
("Comprehensive Plan"), SVMC, SARP, and expired Spokane Valley Interim Zoning Code.
15. The record includes the documents in the appeal file at the time of the appeal hearing, the
documents and testimony admitted at the hearing, and the items taken notice of by the Hearing
Examiner.
16. The following exhibits were offered and admitted at the appeal hearing:
Exhibit 1: Administrative Determination dated 12-15-09
Exhibit 2: Appeal Application dated 12-29-09
Exhibit 3: Power Point Presentation of Staff Report and Recommendations
HE Findings, Conclusions and Decision APP-01-09 Page 3
Exhibit 4: Letter dated 3-11-10 from Andrew Worlock to Michael Dempsey
Exhibit 5: 2007 NAICS Definitions
Exhibit 6: 2002 NAICS Definitions
Description of Site,Zoning of Site
17. The site is located south of and adjacent to Sprague Avenue, north of and adjacent to the
unimproved right of way of Appleway Avenue, approximately 900 feet east of Pines Road (State
Route No. 27), and approximately 300 feet east of Houk Road; in Spokane Valley, Washington.
18. The site is currently referenced as County Assessor's tax parcel no. 45222.0310. The Staff
Report erroneously refers to the site as parcel no. "45222.0311".
19. The site is approximately 3.78 acres in size, rectangular in shape, approximately 260 wide
along Sprague Avenue, approximately 630 feet deep, and relatively flat in topography.
20. The site is improved with a 35,000-square foot retail building; and has a paved surface of
approximately 115,000 square feet(2.64 acres). The west portion of the retail building is
currently being used to operate the Elephant Boys Boat Store business, and the east side is
currently being used to close out the Liquidation World discount retail business on the site.
21. The Elephant Boys business sells various types of new boats, boat trailers and boating
accessories; and also provides boat service and repair.
22. The boats and trailers are generally stored and displayed outdoors on the site. This
includes a display area located outdoors along the front of the retail building, under an awning;
small display areas located in two (2) islands in the front parking lot; and a large display and
storage area surrounded by chain link fencing, located along the west side of the property,
extending along the length of the long retail building located to the west, extending closer to
Sprague Avenue than the adjacent retail building, and partially screened by signage attached to
the fencing. See photos in Exhibit 3.
23. Most of the stock of boats sold, displayed and sold on the site consists of the smaller
fishing and hunting boats; but also includes several larger boats and trailers, including large
pontoon type boats and houseboats, and large outboard motors. See photos in Exhibit 3, and
supplemental sheet in Exhibit 2.
24. Elephant Boys maintains a separate offsite warehouse, and a second retail outlet located
outside the City. The site is under separate ownership from the abutting property to the east that
is improved with the White Elephant Store.
25. Prior to October of 2007, the site and most neighboring land located along Sprague Avenue
were zoned Regional Business (B-3) under the expired City Interim Zoning Code. The B-3 zone
was the most intensive commercial zone under the Interim Zoning Code, and allowed
automobile/truck sales and all other forms of retail sales. See Section 14.623.020 of Interim
Zoning Code, and p. 104 of SARP.
HE Findings, Conclusions and Decision APP-01-09 Page 4
26. In October of 2007, the zoning of the site was reclassified to the CMU zone under the
SVMC. The CMU zone, in pertinent part, permits "automobile/light truck sales and service", but
does not permit"boat sales and service". See Appendix 19-A to SVMC 19.120.010, SVM C
19.60.080 and cross reference to SVMC 19.60.050(B)(3);
27. The Elephant Boys business commenced in May of 2009. On August 26, 2009, the City
received a written complaint that a houseboat on the property was blocking the view of the
adjacent business to the west(Baskin-Robbins) from westbound traffic along Sprague Avenue.
28. On August 31, 2009, the Department posted a warning notice on the site; which advised
that"Boat Sales and Service" are not permitted in the Corridor Mixed Use (CMU) zone of the
SVMC, which became applicable to the site and neighboring land in October of 2007; and that
arrangements should be made to move the business, possibly back to its nonconforming location
situated behind the White Elephant retail store that abuts the site on the east.
29. On October 7, 2009, Scott Kuhta, a senior planner for the Department, sent a letter to legal
counsel for the site owner and Elephant Boys, in response to an inquiry from such counsel;
which reiterated the advisements in the warning notice, and advised that"Boat Sales and
Service"would also not be allowed on the site under the MUA zone that would take effect under
the SARP on October 15, 2009
3 0. On October 15, 2009, the SARP took effect. On November 13, 2009, after legal counsel
for the site owner requested an extension of time to submit a text amendment to the SARP to
allow the proposed use, the Department issued a second warning notice to the site owner and
Elephant Boys; which advised that Boat Sales and Services were prohibited on the site, and such
use on the site must be discontinued.
31. On November 16, 2009, the City received a written complaint objecting to the location of
the business on the site, and questioning whether boat and boat trailer sales were allowed on the
property. On November 20, 2009, the Department issued the Notice and Order of Zoning
Violation referenced above.
Land Use designations for Site and Neighboring Land, Surrounding Conditions
32. The site and neighboring land are designated in the Mixed Use Avenue category and zoned
MUA under the SARP; except for pt o the south 60 feet of the site, and neighboring land to the east,
west and south, which land is designated in the Community Boulevard category and zoned
Community Boulevard (CB) under the SARP.
33. The CB zone is intended to be a distinctive residential/office corridor, and serve as a
medium residential edge of the single-family neighborhoods located south of Appleway
Boulevard. See p. 23 of SARP.
34. The land located northwest of the site, north of Sprague Avenue and west of Houk Road;
and the land located west of the site, between Houk Road and Pines Road (north of First
HE Findings, Conclusions and Decision APP-01-09 Page 5
Avenue); is designated in the Neighborhood Centers category, and zoned Neighborhood Center
Retail (NCR) under the SARP.
35. The land located along Sprague Avenue in the vicinity is dominated by small and medium.
sized commercial uses, of the types listed as permitted uses in the MUA zone; and does not
include boat or automobile sales dealerships or lots, other than the Elephant Boys Boat Store
located on the site. Seep. 103 of SARP.
36. Sprague Avenue in the area consists of a 5-lane, 2-way arterial; is a major transportation
and commercial corridor in the City; and is designated as a Principal Arterial by the City Arterial
Street Plan. The Appleway Avenue right of way extending through the area is not developed as
ffi a roadway, and is designated as a Proposed Principal Arterial by the City Arterial Street Plan.
37. The SARP envisions the extension of Appleway Avenue east of its current terminus at
University Road in the near future, with the reservation of room for light rail/public transit. See
p.3, 10 and 112 of SARP. The 2009-2014 Transportation Improvement Plan adopted by the
City identifies the easterly extension of Appleway Avenue from University Road, located a few
miles west of the site, to Evergreen Road, located nearly a mile east of the site. See
Comprehensive Plan, p. 49.
SARP Regulations applicable to Administrative Interpretation
38. The SARP is intended to implement the broad policies of the Comprehensive Plan for a
new City Center, and the development/redevelopment of the Sprague Avenue/Appleway Avenue
corridor into an area of quality commercial and mixed use development. This is for
approximately 1,000 acres of properties lining along and located in between the Sprague and
Appleway rights of way; from Interstate 90 located a few miles west of the site to just east of
Sullivan Road located a few miles east of the site.
39. The regulations of the SARP replace and supersede the land use and development
regulations previously contained within the SVMC for the Plan area,
except for building safety
and other non-planning related codes. The SARP also supersedes any conflicting policies
contained in the Comprehensive Plan and other planning documents for the Plan area. See page
iii of SARP.
40. Book I of the SARP ("Community Intent"), set forth in pages 1-12, describes the
envisioned physical outcomes that the SARP is intended to instigate, and the primary means by
which the community intends to make such outcomes occur. This includes the primary goals,
the envisioned form that the future district will take, and the strategy to achieve the intended
results.
41. Book II of the SARP, set forth in pages 13-82, contains the development regulations that
govern all future private development actions in the Plan area, including standards and guidelines
to be used to evaluate private development projects or improvement plans proposed for
properties within the Plan area.
HE Findings, Conclusions and Decision APP-01-09 Page 6
gg
42. Conformance with the standards is mandatory, while conformance with the guidelines is
only recommended. Mandatory provisions are indicated by the use of the words "shall", "must"
or"is/is not permitted"; and guidelines are indicated by the use of words "should", "may"and
"are encouraged to". See p. 13 of SARP.
43. The SARP r vide
p o s that non-conforming uses shall be regulated under SVMC 19.20.O6O,
except that any lawful use in place at the time the SARP was adopted may be continued unless
discontinued or abandoned for 24 consecutive months.
44. The various zones established by the SARP are described in Section 2.1.3 of the SARP.
The MUA zone contemplates Sprague Avenue to have larger, consistent landscaped setbacks
with parking lots located to the side and rear of buildings; where new office, lodging and
"Medium Box"retail sales and services are compatible with housing in building form and site
development, larger-scale housing is considered appropriate along Sprague, and retail uses are
located on and oriented toward Sprague. For properties that do not front along Sprague, a mix of
office, lodging and medium density housing is contemplated. See p. 22 of SARP.
45. The SARP, on page 22, lists the following categories of uses as permitted along Sprague
Avenue, in the MUA zone: Mixed-Use Avenue Retail, Civic/Quasi-Civic/Cultural, Office, Light
Industrial, Lodging (with common entry), Live-Work, and Multi-Family (with common entry).
46. Section 2.2 of the SARP sets forth specific site development regulations. Subsection 2.2.2
describes the various categories of uses defined in the various zones of the SARP.
47. Subsection 2.2.2 of the SARP provides that all permitted and conditionally permitted uses
are classified into use categories, as described in the tables listed under such subsection; all the
uses listed are permitted outright, except where listed as conditional; all permitted use for a
single zone are allowed either alone, or in combination with any other permitted uses on a parcel;
and proposed uses that are not explicitly listed below may be permitted if they are deemed by the
Director/designee of the Department to meet the purpose and intent of the Plan.
48. Paragraph 2.2.2(1)(c) of the SARP sets forth the specific uses that are permitted under the
"Mixed Avenue Retail" use category of uses. This includes, "Medium Box" Commercial Sales
& Services; Drive-in/Drive-up Fast Food Restaurants and espresso stands; gas stations and auto
repair shops, convenience stores, veterinary clinics and "doggy day care" facilities; pawn shops,
check cashing stores and casinos. Used vehicle sales, and full service restaurants are listed as
prohibited uses.
49. Paragraph 2.2.2(1)(c)(i) of the SARP, regarding the Mixed Avenue Retail use category,
provides as follows, under the heading"Permitted Uses":
(1) "Medium Box" Commercial Sales & Services including the following:
(a) Establishments selling or servicing Large Scale Goods such as
party, goods, art supplies, sporting goods, electronics or
HE Findings, Conclusions and Decision APP-01-09 Page 7
appliances, outdoor accessories,furniture, home furnishings,
hardware, and home improvements stores.
(b) Commercial services such as miscellaneous Repair Service uses with no
outdoor storage, including plumbing services, laundry services, cleaning
and janitorial service and supplies, vacuum cleaning and sewing repair
and rental shops, etc.
(c) Print and Graphics Supply and Service, including typesetting, lithography,
graphics and art services, etc.
(d) Big Box and Medium Box Warehouse retail, restaurant supply retail, and
warehouse scale buying club retail.
(e) Warehousing is permitted as an accessory to retail or light industrial use.
The total area of a building to be used for warehousing may not exceed
30% of the total floor area.
50. Whipple contends in the Appellant's Brief that the Elephant Boys Boat Store use is
included in the"Medium Box" Commercial Sales & Service use. This is based on the rationale
that the retail building and improvements making up the site could be characterized as an older
"medium box"retail facility, typical of the development pattern on the south side of Sprague
Avenue, between Pines and Evergreen; Elephant Boys sells new boats, sells no used boats and
offers a mechanical repair service; most of the boats sold are smaller fishing and hunting boats;
and such smaller boats are commonly sold at both sporting good stores that specifically focus on
hunting, fishing and outdoor activities, and other"big and medium box warehouse retail" stores.
51. The only category of use listed under Subsection 2.2.2 of the SARP that specifically
mentions, includes and permits Vehicle Sales and Services, and the included uses of boat and
automobile sales and services, is the Gateway Commercial Avenue Retail category.
52. Paragraph 2.2.2(1)(e)(i) of the SARP, regarding the Gateway Commercial Avenue Retail
use category, provides in p ertinent part as follows, under the heading "Permitted Uses":
(1) Vehicle Sales and Services, including automobiles, recreational vehicles,
boats, motorsports vehicles, etc. [underlining added]
(2) Vehicle repair, body and glass shops.
(3) Vehicle parts and accessories.
(4) Gas stations [...]
(5) Drive-in/Drive-up Fast Food Restaurants.
(6) "Medium Box" Commercial Sales &Services, including the following...
[same listing of uses as Mixed Use Avenue Retail]
HE Findings, Conclusions and Decision APP-01-09 Page 8
53. The Gateway Commercial Avenue (GCA) zone and the Gateway Commercial Centers
(GCC) zone are the only zones in the SARP that permit the Gateway Commercial Avenue Retail
use category. These are also the only zones that specify the manner of vehicle display required
along the private frontage of property on which vehicle sales are conducted, with private
frontage including the portions of property between the sidewalk and primary building facade
along the street. See p. 17-25, 34 and 38 of SARP.
54. The GCA and GCC zones of the SARP are all located along or between Sprague and
Appleway Avenues, between Interstate 90 and Argonne Road. This is where all, or virtually all,
the auto dealerships and use car sales businesses ("Auto Row") are located along the
Sprague/Appleway corridor; and is also the location of the Skipper Bill's boat dealership
referenced by Todd Whipple at the appeal hearing. See p. 16, 69 and 103 of SARP.
55. The GCA zone is intended to be a"themed" specialty district that is dominated by auto
sales and services, interspersed with auto-oriented development and appropriate compatible uses
such as "medium box" commercial sales and services. A "unique streetscape design" and
signage regulations are provided to combine with "special street frontage treatments", including
"vehicle display space" and corresponding identifiable building form regulations, to help support
and strengthen this "regional destination". See p. 24-25 of SARP.
56. The GCC zone, in addition to accommodating the "typical Gateway Commercial Avenue
fabric", is intended to permit concentrations of auto themed restaurants, entertainment and
recreation to support the zone's role as a regional destination; with more urban buildings with
higher frontage coverage and wider sidewalks intended to distinguish such additional uses from
the GCA uses. The GCC zone permits all the "Medium Box" Commercial Sales & Services uses
enumerated in the Mixed Use Avenue use category, the Gateway Commercial Avenue Retail use
category, the Gateway Commercial Center Retail use category, the Civic/Quasi-Civic/Cultural
use category and the Lodging (with common entry) use category. See p. 25 and 29 of SARP.
57. The Appellant's Brief, the Department Director, and the Respondent's Brief on behalf of
the Department confuse the Mixed-Use Avenue Retail use category with the Mixed Use Avenue
(MUA) zone; and the Gateway Commercial Avenue Retail use category with the Gateway
Commercial Avenue (GCA) zone.
58. The GCA and GCC zones are more intensive commercial retail zones than the MUA zone,
because they y permit all the "Medium Box" Commercial Sales & Services uses enumerated in the
Mixed-Use Avenue Retail use category,plus the various vehicle uses, including boat sales and
services,permitted in the Gateway Commercial Avenue Retail category. This is specifically
intended by the SARP considering the greater proximity of the regional-serving GCA zones and
GAA zone to Interstate 90 at the Sprague Interchange, lying east of the interchange and west of
Argonne Road; compared to the more community-serving MUA zones lying east of Argonne
Road. See p. 24-25 of SARP.
59. The GCA zone permits all the uses allowed by the MUA zone except the uses included in
the Office, Lodging (with common entry), Live-Work and Multi-Family (with common entry)
HE Findings, Conclusions and Decision APP-01-09 Page 9
use categories; which are not retail categories. The permitted uses specifically include
warehousing, expresso stands, gas stations and repair shops. See p. 6-7 of Appellant's Brief.
60. The Appellant's Brief also seizes on the special outside display and storage provisions of
the SARP that apply to the permitted uses in all zones, except for the City Center Zone District
(CC zone) in certain respects.
61. Paragraph 2.2.2(8)(i), on page 30 of the SARP, requires items for sale or rental in all zones
to be displayed outside only during business hours. Paragraph 2.2.2(8)(ii) of the SARP, on page
30 of the SARP, requires all outdoor storage to be within an enclosed building. However, the
paragraph goes on to state that"...retail products that are normally displayed outside due to size,
weight, or nature of the product..."may be displayed outside, except in the CC zone; and gives
as examples cars, boats, machinery, plant materials, seasonal products and storage sheds.
62, Paragraph 2.2.2(8)(ii) of the SARP is somewhat ambiguous, because it appears to confuse
"display" with"storage". The paragraph appears intended to allow retail products that are
normally displayed outside due to size, weight, or nature of the product to be displayed and
stored outside, and not just during business hours. For example, new or used cars in sales lots
are both typically stored and displayed outside, except for certain display models kept inside the
retail building.
63. Paragraph 2.2.2(8)(ii) of the SARP is a catch-all provision, and the listing of examples of
retail products that are normally displayed outside does not mean that each example listed, i.e.
cars, boats, machinery etc. is a permitted use in each zone. The provision does suggest that each
zone, other than the CC zone, has some type of retail product that is normally displayed outside.
64. The Staff Report submitted by the Department agrees with Whipple's assertion that the
retail building on the site has the appearance of a"medium box"retail facility. However, the
Staff Report specifically disagrees with Whipple's assertion that the boat sales and service
business on the site is consistent with some of the types of large-scale goods listed under the
"Medium Box" Commercial Sales & Service use category, i.e. sporting goods, auto parts,
appliances, outdoor accessories, hardware and home improvements stores, etc. See p.3 of
supplemental sheet of appeal application. See also letter dated March 11, 2010 from Andrew
Worlock.
65. The Elephant Boys Boat Store use is more similar in form, type of use, and operational
characteristics to the auto dealerships located along Sprague and Appleway Avenues west of
Argonne Road than the "Medium Box" Commercial Sales & Service uses located along Sprague
Avenue east of Argonne Road. This considers Elephant Boys' significant outdoor storage and
display of boats and trailers; its large volume of smaller boating craft that may be similar to the
type and scale to those obviously found in much smaller numbers in fishing, hunting goods and
outdoor recreation supply stores; its volume of larger boats, trailers and motors that are not
similar to the type and scale of such products that may be found in such stores; and its boat
parts, service and repair business that is obviously much larger in scale than one would expect to
find in such stores.
HE Findings, Conclusions and Decision APP-01-09 Page 10
66, The SARP does not define the term "sporting goods", or"sporting goods store", The Stall
Report recites the 2007 North American Industry Classification System (NAICS) Definitions for
support in classifying the Elephant Boys use on the site. This is the current system used by
Federal statistical agencies to classify business establishments for various statistical purposes to
describe the U.S. economy. The classifications in the 2002 NAICS, which are substantially
similar those in the 2007 NAICS, are adopted by the SVMC to classify use types in those area of
the city lying outside the SARP, and are not directly applicable under the SARP.
67. Both the 2002 and the 2007 NAICS, under classification"44122 Motorcycle, Boat and
other Motor Vehicle Dealers", place the retailing of new and/or used boats, or the retailing of
new boats and combinations with activities such as repair services and selling replacement parts
and accessories, and/or the retailing of new and/or used outboard motors, boat trailers, marine
supplies, parts and accessories under the same general category as "44110 Automobile Dealers"
and "44111 New Car Dealers", i.e. "411 Motor Vehicles and Parts Dealers".
68. The 2002 and the 2007 NAICS also clearly distinguish automobile and boat sales and
service uses from"45110 Sporting Good Stores". Webster's online dictionaries do not provide a
definition of"sporting goods" or"sporting goods store". However, online definitions of the term
"sporting goods" from other sources also support the distinction between boat sales/ services and
sporting goods stores. See Staff Report.
69. Whipple's final argument, on which it appears to place the most weight, is that the
prohibition of"used vehicle sales"under the Mixed Avenue Use Avenue Retail category clearly
implies that new vehicle sales, including boats and boat services, are a permitted use under the
"Medium Box" Commercial Sales & Services use category; and that boat sales and service are
therefore permitted in the MUA.
70. To sustain Whipple's position would render meaningless the distinction between Vehicle
Sales and Service uses, including automobiles, boats, etc., and "Medium Box" Commercial Sales
&Services; which are separate, permitted uses in the GCA and GCC zones. It would also
conflict with the obvious purpose and intent of the SARP to focus regional services and uses
with significant outdoor display and storage, such as automobile and boat sales and services,
along the Sprague/Appleway corridor west of Argonne Road, in the GCA and GCC zones; rather
than in the part of the corridor lying east of Argonne Road, in the MUA zones.
71. It is more probable that the prohibition of"used vehicle sales" in the Mixed Avenue Use
Avenue Retail category was simply intended for special emphasis, as contended by the
Department; or, in the light most favorable to Whipple, to address the few small hunting and
fishing type boats that might be sold in a hunting, fishing and outdoor recreational supply store,
or a Big Box or Medium Box Warehouse retail use.
III. CONCLUSIONS OF LAW
1. Whipple Consulting Engineers, Inc. and Harlan D. Douglass had standing to appeal the
administrative interpretation/determination to the Hearing Examiner. The appeal filed by
Whipple Consulting Engineers, Inc. was timely submitted.
HE Findings, Conclusions and Decision APP-01-09 Page 11
2 Under Washington case law, a court's objective in construing a statute is to determine the
State Legislature's intent. If the statute's meaning is plain on its face, then the court must give
effect to that plain meaning as an expression of legislative intent. Plain meaning is discerned
g p 6 6
from the ordinary meaning of the language at issue, the context of the statute in which it is found,
related provisions in the statute, and the statutory scheme as a whole. An undefined statutory
term should be given its usual and ordinary meaning. All language used is to be given effect;
with no portion rendered meaningless or superfluous, unless it is the result of an obvious mistake
or error. If the statutory language is susceptible to more than one reasonable interpretation, then
a court may resort to statutory construction, legislative history, and relevant case law for
assistance in determining legislative intent. See Christensen v. Ellsworth, 162 Wn.2d 365, 373
(2007); and Department of Ecology v. Campbell& Gwinn, LLC, 146 Wn.2d 1, 9-10 (2002).
3. The usual rules of statutory construction apply to municipal ordinances such as the SARP
regulations. See Connor v. City of Seattle, 153 Wn. App. 673 (2009). Zoning ordinances are to
be liberally construed to effectuate their intent. See Dando v. King County, 75 Wn. 2d 598, 603
(1969).
4. Under Washington case law, zoning ordinances are to be given a reasonable construction in
order to serve their purpose and scope; and to avoid a literal reading of an ordinance that would
result in unlikely, absurd or strained consequences. The primary objective in interpreting a
zoning ordinance is to ascertain the legislative intent. Undefined words in an ordinance are to be
given their plain and ordinary meaning. The ordinance should be construed as a whole, giving
} effect to each of its parts, and, if possible, construing all parts in harmony. A zoning ordinance is
ambiguous if it is susceptible to more than one reasonable interpretation. Ambiguities in a
zoning ordinance are generally construed in favor of the property owner. In a doubtful case, a
court gives great weight to the contemporaneous construction of a zoning ordinance by the
officials charged with its enforcement. See Development Services v. City of Seattle, 138 Wn.2d
107 (1999); Whatcom County v. City of Bellingham, 128 Wn.2d 537 (1996); Mall, Inc. v. City of
Seattle, 108 Wn.2d 369 (1987); State v. Bellingham, 25 Wn. App. 33; review denied 93 Wn.2d
1018 (1979); and Dando v. King County), supra.
5. The prohibition of"used vehicle sales" in the Mixed Use Avenue Retail use category,
together with the listing of uses under the "Medium Box" Commercial Sales & Service uses
under such category, and the outdoor storage provisions of the SARP, do not create an ambiguity
in the SARP that must be construed as allowing all new vehicle sales in such category, and
therefore the MUA zone. Such construction would lead to an unlikely, absurd or strained
consequence, and is not a reasonable interpretation of the SARP.
6. Boat sales and services businesses, like the Elephant Boys Boat Store; and automobile sales
and service businesses; are allowed only in the GCA and GCC zones of the SARP, are not
permitted in the MUA of the SARP, and would violate the purpose and intent of the SARP if
found to be permitted in the MUA zone.
7. The authority of the Director of the Department under Section 2.2.2 of the SARP, to permit
proposed uses that are not explicitly listed in the various use categories set forth on pages 28-30
HE Findings, Conclusions and Decision APP-01-09 Page 12
of the SARP, if they are deemed to meet the purpose and intent of the Plan, appears to address
uses that are not explicitly listed in any of the use categories, not a use that is not explicitly listed
in any particular use category.
8. Vehicle Sales and Services, including automobiles and boats, are specifically listed as a
permitted use in the Gateway Commercial Avenue Retail category; and are not listed as a
permitted use in the Mixed Use Retail category.
9. The Elephant Boys Boat Store use is included in the Vehicle Sales and Service use of the
Gateway Commercial Avenue Retail category, and is not included in the"Medium Box"
Commercial Sales and Services use of the Mixed Use Avenue Retail category. There is no basis
for the Director of the Department to permit an additional, non-listed, use under Section 2.2.2 of
the SARP, regarding the Elephant Boys use.
10. The Elephant Boys Boat Store use is not permitted in the MUA zone.
11. The administrative interpretation should be upheld.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the appeal is hereby
denied and the administrative interpretation issued by the City Community Development
Director is hereby upheld.
DATED this 26th day of March, 2010
CITY HEARING EXAMINER PRO TEM
Mic el C. Dempsey, WSBA#823
HE Findings, Conclusions and Decision APP-01-09 Page 13
ff�
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 the appeal of an administrative interpretation or
determination 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 36.700. 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 March
26,2010. The date of issuance of the Hearing Examiner's decision is therefore March 29,
2010, counting to the next business day. THE APPEAL CLOSING DATE IS APRIL 19,
2010.
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 8:30 a.m. and 5:00 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 Lori Barlow 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.
ti
HE Findings, Conclusions and Decision APP-01-09 Page 14
91 7108 2133 3936 4158 6884