APP-01-10 TUP 01-10 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Appeal of Notice and Order issued by the )
City Community Development Department; ) FINDINGS OF FACT,
Appellant: Rick W. Phillips ) CONCLUSIONS OF LAW,
File No. APP-01-10/TUP-01-10 ) AND DECISION
I. SUMMARY OF DECISION
Bearing Matter: Administrative appeal of a Notice and Order issued by the City Community
Development Department ("Department"), imposing a civil penalty in the amount of$1,000 for
violations of the Spokane Valley Municipal Code (SVMC).
Summary of Decision: Reduce civil penalty to $750.
II. FINDINGS OF FACT
1. On February 25, 2010, Code Compliance Office Chris Berg of the Department issued a Notice
and Order regarding the Fresh Farm Fruit stand located at 20 S. Argonne Road, Spokane Valley,
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Washington.
2. The Notice and Order advised that conditions at the location of the business are in violation of
SVMC 7.05.040 (Nuisances Prohibited) and SVMC 19.160.030 (Temporary Uses), for operating a
business without a temporary use permit(3rd offense); Rick Phillips and the recorded owners of the
property were responsible for the violations; a civil penalty of$1,000 had been assessed by the
Department for the violations; the penalty and costs of enforcement must be paid within 20 days of
service of the Notice and Order; and such persons had 20 days to appeal the Notice and Order to the
Hearing Examiner. The Notice and Order contained the contents required by SVMC 17.100.150.
3. On March 9, 2010, the Notice and Order was timely appealed by Farm Fresh Fruit through Rick
Phillips. The mailing address for Farm Fresh Fruit is c/o Richard W. Phillips, 1302 S. Herald,
Spokane Valley, WA 99206. Phillips has a mailing address of 1302 S. Herald, Spokane Valley, WA
99206.
4. Notice of a public hearing to be held on the appeal on April 15, 2010 was properly provided by
the Department to the a pp ellant and other necessary p ersons.
5. On April 15, 2010, the Hearing Examiner conducted a hearing on the appeal. The following
persons testified at the hearing:
Kathy McClung, Director Chris Berg, Code Compliance Officer
City Community Development Department City Community Development Department
11707 E. Sprague, Suite 106 11707 E. Sprague, Suite 106
Spokane Valley, WA 99206 Spokane Valley, WA 99206
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Ricl Phillips Dan Harter
Fa.rn Fresh Fruit 9020 E. Sprague
13 02 S. Herald Spokane, WA 99212
Spokane, WA 99206
Sarin Harter
3124 S. Bannen Ct.
Spokane Valley, WA 99037
6. The appeal hearing was conducted in the manner set forth in Appendix B of the Uniform
Development Code (UDC), which is part of the SVMC. The Hearing Examiner takes notice of the
SVMC, and the Sprague and Appleway Corridors Subarea Plan (SARP).
7. The Department submitted a revised Staff Report and Recommendation("Staff Report") at the
hearing; which corrected an erroneous date for the report, and discrepancies in the numbering and
organization of exhibits that were attached to the report.
8. The record includes the electronic recording of the hearing, the Staff Report, Exhibits 1-17
submitted by the Department at the hearing, and the items taken notice of by the Hearing Examiner.
9. Farm Fresh Fruit contended at the hearing that a civil penalty should not be imposed because
Farm Fresh Fruit had complied with all temporary use permit requirements.
10. The site is irregular in shape, approximately 15,400 square feet in size, relatively flat in
topography, is improved with a permanent building of 2,136-square foot, and has paved parking areas.
11. The property is situated between the tracks for the Union Pacific Railway Company on the
southwest, and Argonne Road and a parcel of industrial land on the northeast; and extends
northwesterly almost to Sprague Avenue.
12. The site consists of leased portions of County Assessor tax parcel nos. 45191.9183, 45187.001
and 45207.0002; is owned by the Union Pacific Railway Company, addressed at 1400 Douglas Stop
1640, Omaha,Nebraska 68179, and is leased by Rick Phillips through October 14, 2010. See
Exhibits 1A, 1B and 8.
13. The site is zoned Gateway Commercial Avenue (GCA) under the Sprague and Appleway
Corridors Subarea Plan(SARP). The SARP is a special overlay zone that governs land use and
development applications defined in the SVMC; and supersedes various development standards set
forth in the SVMC, except those specifically incorporated by the SARP. See SVMC 19.110.020
1 permit fruit stands, whether permanent or
14. The GCA zoning district does not expressly e p
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temporary. The SARP does not address temporary use permits; but does specify outside storage and
display requirements for seasonal products and retail products that are normally displayed outside due
to size, weight, or nature of the product. See p. 13-14, 24, and 28-30 of SARP.
HE Findings, Conclusions and Decision APP-10-10/TUP-01-10 Page 2
15, The intent of SVMC Chapter 19.160 is to regulate certain temporary uses of property which ztre
not otherwise regulated by other City ordinances or regulations. See SVMC 1.9.160.010,
16. SVMC 19.160.030.B authorizes the Department to issue a temporary and revocable permit for
the sale of seasonal goods in any nonresidential zone, for a period not to exceed six (6) months in any
12-month period. The Department may impose conditions on issuance of the permit that are deemed
necessary to reasonably mitigate any adverse impacts anticipated from the temporary use See SVMC
19.160.040.
17. A temporary seasonal use is not required to comply with the standards normally associated with
a permanent use. The use must, however, be consistent with the permitted uses in the zone; be an
appropriate use of the property pending the permanent long term use, not result in significant traffic,
parking, drainage, fire protection or other adverse impacts that cannot be appropriately mitigated; and
provide any necessary sanitary facilities. See SVMC 19.160.030.B.
18. SVMC 17.100.030 authorizes various enforcement actions to discourage public nuisances and
otherwise promote compliance with applicable provisions of the UDC, including Title 19. This
includes but is not limited to issuing notice and orders, assessing civil penalties, and recovering costs;
abatement by judicial order; entry into voluntary compliance agreements, and assessing civil penalties
through a notice and order if the agreement is breached; issuance of a stop work order, and assessing
civil penalties if the order is not complied with; and permit denial.
19. SVMC 17.100.250 provides for the assessment of civil penalties for code violations, and
establishes an assessment schedule for initial violations and repeat violations. The basic initial
penalty per violation is set at$500; and an additional penalty up to $500 may be added, in pertinent
part, for a history of 1-3 similar violations.
20. SVMC Chapter 7.05 addresses the abatement of public nuisances, defines a"nuisance", contains
a list of prohibited public nuisances that is not intended to be exhaustive, and vests the Department
with the enforcement mechanisms set forth in SVMC Chapter 17.100 to abate public nuisances that
come to its attention.
21. On March 11, 2009, Farm Fresh Fruit submitted an application for a temporary use permit
(TUP)to operate a seasonal fruit stand on the site, for a 7-month time period extending between
March and September of 2009. This included an 800-square foot tent to store, display and sell the
produce;and a paved parking area located in front of, and also northwest of, the permanent building
on the site. See Exhibits 5 and 16.
22. On March 31, 2009, the Department issued a decision to Rick Phillips approving a TUP for the
business, subject to conditions, for a 6-month period extending between March 12 and September 12,
2009. The decision advised Phillips that his request for a 7-month period was denied, based on the 6-
month limit established for a TUP in SVMC 19.160.030.B. See Exhibit 5.
23. On August 19, 2009, the Department mailed a courtesy letter to Rick Phillips, advising him that
the TUP would expire on September 12, 2009. See Exhibit 6. Phillips continued to operate the
business after the permit expired.
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24. On September 30, 2009, the Department issued a Notice and Order to Farm Fresh Fruit;which
advised Rick Phillips that he had violated SVMC 19.160.030 by continuing to operate after the TC,, P
expired, and assessed a civil monetary penalty of$500 against Phillips. See Exhibit 7.
25. On October 1, 2009, Rick Phillips entered into a voluntary compliance agreement with the
Department; in which Phillips admitted that operating the business after the TUP expired constituted a
civil code violation, and agreed to close the business by October 10, 2009. Phillips complied with the
terms of the agreement, and the civil penalty in the Notice and Order was not enforced. See Exhibit
16.
26. On or about October 8, 2010, Rick Phillips leased the site from the Union Pacific Railroad
Company through October 14, 2010. See Exhibit 9.
27. On October 15, 2009, the City adopted the SARP for the site and other land located along the
Sprague/Appleway corridor in the City. This reclassified the zoning of the site to the GAC zoning
district.
28. On February 18, 2010, Farm Fresh Fruit submitted an application for a TUP to conduct outdoor
fruit sales inside a tent in an 800-square foot area of the site, with parking in the paved portions of the
site lying in front of and also northwest of the permanent building on the property. On February 22,
2010, the Department requested Phillips to work with City Engineering to adjust his parking spaces,
in order to mitigate traffic problems generated by operation of the business in the past.
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29. On February 24, 2010, the Department received telephone calls from the owners of neighboring
businesses; reporting that the fruit stand on the site was open for business, and inquiring whether the
City had issued a permit for the business. See p. 2 of Exhibit 17.
30. In response to the telephone calls, Chris Berg of the Department visited the site at approximately
3:43 p.m. on February 24, 2010, and observed the fruit stand open for business. Berg took
photographs of the open fruit stand, and advised Rick Phillips to cease selling produce on the site until
he had a permit. Phillips agreed to stop selling produce, and closed the access gate to the business.
See p. 1 of Exhibit 10A,p. 2 of Staff Report, and testimony of Chris Berg.
31. After Chris Berg left the site, Rick Phillips contacted the Department on February 24, 2010 and
ended up speaking to Deanna Griffith of the Department. Phillips advised Griffith that he grows fruit
in the Orondo area(located in north central Washington), sells fruit on the site raised by him or by
farmer friends of his, uses the building on the site to sell fruit year-round, including huckleberries
during the winter, has the tent up on the site, is building displays and stocking them with produce for
a planned March 1 opening; has his son manage the business while he picks up produce; checked with
the fire department to ensure they had all necessary information, does not turn away customers if they
stop by to purchase fruit because he doesn't want the fruit to spoil, and would likely continue selling
fruit again the next day.
32. Rick Phillips also advised Deanna Griffith that his use is allowed under the zoning of the site; he
plans to install a permanent structure in 2010 to replace the tent on the site, and he will not need a
HE Findings, Conclusions and Decision APP-10-10/TUP-01-10 Page 4
permit from the City after that; he has operated the business on the site for the past 10 years; and he
had year-round business license and building lease for the property.
33 . On February 24, 2010, at approximately 4:50 p.m., Chris Berg visited the site again to verify
whether the sales activity on the site had stopped. Berg observed the gates of the fruit stand still open
for business, and took photographs of a sales transaction occurring inside the open gates. See p. 2-4
of Exhibit 10 A.
34. On February 25, 2010, the TUP application was routed to outside agencies for review; and at
that time the Department advised Rick Phillips at that time the application would take some time to
review, and Phillips acknowledged his understanding of the time issues. See p. 3 of Exhibit 17.
35. Later on February 25, 2010, at approximately 2:00 p.m., Chris Berg visited the site, verified that
the fruit stand was again open for business, and took photos of the open business. See Exhibit 1013,
and p. 3 of Exhibit 17. The Department then issued the Notice and Order, assessing the $1,000 civil
penalty referenced above. See Exhibits 2 and 13.
36. On February 26, 2010,the applicant submitted a revised site plan for the TUP. The revised site
plan showed the layout of the structures on the site, parking spaces, and other features of the business.
The revised site plan indicated that the site was 100%paved, parking had been added to provide a
total of 20 parking spaces, the applicant would be selling produce directly to the public, and the
applicant would be selling fruit grown by the owner. See Exhibit 8.
37. Comments on the TUP application were submitted by pertinent agencies and City departments
through March 1, 2010.
38. On March 2, 2010, the Department issued a TUP to Rick Phillips, as the owner of Farm Fresh
Fruit, for a 6-month period extending from March 2 to September 2, 2010. The permit required
Phillips to remove the three (3) southernmost parking spaces on the site, block access to the spaces to
prevent unsafe maneuvering by vehicles to and from the site, otherwise operate the site based on the
revised site plan, and operate the business only on the land identified in Phillips' lease. See Exhibits 8
and 9.
39. Farm Fresh Fruit displays and sells a wide variety of fruits, as well as some vegetables, on the
site. This includes fruit and other produce raised by Rick Miller and other farmers in the area from
where he is from; and items such as bananas,oranges and other citrus products that are obviously
raised outside the State of Washington. See photos in Exhibit 10, Exhibit 11, testimony of Rick
Phillips and Chris Berg, and site visit comments by Hearing Examiner.
40. Rick Phillips testified at the hearing that his business is weather-related, the growing season
exceeds six(6)months and a TUP for the selling of seasonal produce should be issued for longer than
six (6) months, it takes five (5) days for him to build and create displays, he has to order produce a
week in advance, he originally planned to open on March 1, 2010, he paid $220 for the 2010 TUP, if
he puts up walls to stay closed he can't work on the displays, he either raises or purchases in advance
all the fruit that he sells, and he installed new paving and parking spaces on the site for the current
HE Findings, Conclusions and Decision APP-10-10/TUP-01-10 Page 5
TLJP, and he was still setting up the business on February 24-25, 2010 when he sold fruit to a few
friends who stopped by on such dates.
41 . Rick Phillips testified that he called Kathy McClung, the Department. Director, after receiving
the Notice and Order, to request entry into a voluntary compliance agreement; but was refused.
Phillips also testified that he had contacted the State Department of Agriculture, and was told that he
didn't need a local permit to sell produce that he owns, whether he raises it or not; based on RCW
36.71.090(1). Phillips contended that he should have been issued a warning before being assessed a
civil penalty, he had done everything the City required of him to obtain the TUP, and the $1,000
penalty imposed was excessive.
42. Dan Harter, the owner of a nearby business for the past six (6) years, testified that Rick Phillips
had operated the business longer than six (6) months each of the last six (6) years, had continually and
flagrantly violated City regulations over the years, doesn't do what the City instructs him to do, had
not blocked off the three (3)parking spaces on the site as required by the 2010 TUP, and should be
required to comply with the SVMC.
43. Sarina Harter, the spouse of Dan Harter, testified that she personally witnessed Rick Phillips
operating the business before Phillips received the TUP approval, and that Phillips was disrespectful
of the SVMC.
44. The Department, in its revised Staff Report, and during its presentation at the hearing, did not
claim that the operation of a seasonal goods sales business by Farm Fresh Fruit on the site without a
permit on February 24, 2010 and February 25, 2010, constituted a public nuisance under SVMC
Chapter 17.100.010. The Department also did not calculate or request reimbursement for its
administrative cost in bringing the enforcement action.
III. CONCLUSIONS OF LAW
1. Farm Fresh Produce was open for business and Rick Phillips sold seasonal goods on a
temporary basis in a nonresidential zone on February 24, 2010 and February 25, 2010, without first
obtaining a TUP; in violation of SVMC 19.160.030.B and SVMC Chapter 17.100.
2. The Department did not claim or establish at the hearing that such activity constituted a"public
nuisance" as defined in SVMC 7.05.020 and as prohibited in SVMC 7.05.040.
3. The Department followed the procedures set forth in SVMC 17.100.050 for the investigation of
a probable violation of the SVMC by Rick Phillips on February 24-25, 2010. The Department was
not required to give Farm Fresh Produce or Phillips a second warning after Chris Berg initially told
Rick Phillips on February 24, 2010 to cease the sale of produce on the site. This was because the
continued sale of produce by Phillips on the site later that day and also on the next day presented a
repeat violation; a stop work order was necessary to abate the violation; and/or Phillips knew or
reasonably should have known that his sale of produce from the site without a TUP constituted a code
violation. See SVMC 17.100.050.C.
HE Findings, Conclusions and Decision APP-10-10/TUP-01-10 Page 6
4. The Department made reasonable efforts to secure voluntary compliance from Rick Phillips to
abate the violation, and was not required by the SVMC to try and enter into a voluntary compliance
agreement with him before issuing the Notice and Order. See SVMC 17.100.100 and 17.100.130.
5. The Notice and Order was properly issued by the Department, and contained the required
contents. The Department was authorized to impose a civil penalty in the Notice and Order. See
SVMC 17.100.130 and SVMC 17.100.150.
6. The Hearing Examiner is required to impose a basic initial penalty of$500 for the violation,
See SVMC 17.100.250.A.
7. The Department, subject to review by the Hearing Examiner, has the discretion to impose a civil
penalty up to $500 for a history of similar violations (1-3). See SVMC 17.100.250.13.4.
8. The sale of seasonal produce by Farm Fresh Fruit and Rick Phillips from the site in 2009 after
the 2009 TUP expired on September 12, 2009 establishes a history of one (1) violation of the SVMC
similar to the 2010 violation, for failing to operate within the time limits of a required TUP; despite
Rick Miller's entry into and compliance with a voluntary compliance agreement for such violation.
The Examiner notes that the Department could potentially have imposed a civil penalty of$5,000 for
"economic benefit to person responsible for violation", as well as seeking reimbursement for its
administrative enforcement costs. See SVMC 17.100.250 and 17.100.300.
9. Because Rick Phillips fully came into compliance with permit requirements by the time a TUP
was issued on March 2, 2010, including incurring the expense of adding additional paving and
parking to the site, it is appropriate for the Examiner to reduce the $500 additional penalty imposable
for a history of similar violations to $250.
10. RCW 36.71.090(1) authorizes a farmer, gardeners or other person, without license, to sell,
deliver, or peddle any fruits, vegetables, berries, eggs, or any farm produce or edibles, that are raised,
gathered, produced or manufactured by such person; and prohibits any city or town from passing an
ordinance prohibiting the sale by, or requiring a license from the producers and manufacturers of such
farm produce and edibles.
11. The Washington State Supreme Court interpreted RCW 36.71.090(1), in Hastings v. City of
Bremerton, 159 Wash. 621 (1930). The Court found that the words "or other person" in the statute
refers to classes of people similar to "farmers or gardeners", and does not include a"manufacturer"
who converts or processes farm produce or edibles produced by another person into
another product
for the market; and that the word "manufactured" used in the statute refers to the process by which a
person turns their own farm products or edibles into some other form, such as turning cream into
butter or cheese, applles into cider, or pork into sausage.
12. The statute on its face, and the Hastings v. City of Bremerton decision by analogy, clearly
indicate that the City is authorized by RCW 36.71.090(1)to require Farm Fresh Produce and Rick
Phillips to obtain a TUP to sell produce that he did not raise, gather, produce or manufacture;
including produce that he purchased from another farmer. The purchase by Rick Phillips of produce
HE Findings, Conclusions and Decision APP-10-10/TUP-01-10 Page 7
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raised by another farmer does not make Phillips a gatherer, producer or manufacturer of such produce
within the meaning of RCW 36.71.090(1).
13 . The legal opinion issued by City Attorney Mike Connelly correctly interprets RCW 36.71.090.
as itapplies to the requirement in SVMC 19.60.030.B that a TUP be obtained to sell seasonal goods
in anonresidential zone. See Exhibit 12.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the civil penalty imposed
by the City Community Development Department, Code Compliance Division, against Richard W.
Phillips is hereby reduced to $750.
DATED this 23rd day of April, 2010
CITY HEARING EXAMINER PRO TEM
/JaJci4, 4
Michael . Dempsey, WSBA #8235 f dir
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NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Section 17.90.010 of the Spokane Valley Municipal Code(SVMC), and
Chapter 36.70C RCW, the decision of the Hearing Examiner on the appeal of a Notice and
Order of Violation imposed by the City Community Development Department 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 chapter 36.70C RCW. Pursuant to Chapter 36.70C RCW, 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 the City Community
Development Department, on April 23, 2010. The date of issuance of the Hearing Examiner's
decision is therefore April 26,2010, counting to the next business day when the last day for
mailing falls on a weekend. THE APPEAL CLOSING DATE IS MAY 17,2010.
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—Code Enforcement, 11707 E. Sprague Avenue,
Spokane Valley,WA, 99206; by contacting Chris Berg(509) 921-1000. Copies of the documents
in the record will be made available at the cost set by the City of Spokane Valley.
91 7108 2133 3936 4158 6433
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