Letter of reconsideration from HEX 6-20-08 REZ-19-07 S P O K A N E x '' ' f C C) t N t
OFFICE OF THE HEARING EXAMINER MICHAEL C. DEMPSEY,CHIEF EXAMINER
June 20, 2008
Kathy McClung
Community Development Director
City of Spokane Valley
11707 E. Sprague Avenue, Suite 106
Spokane Valley, WA 99206
RE: Request for Reconsideration of Hearing Examiner Decision
File No. REZ-19-07/SUB-06-07 (Summerset Estates)
Dear Director McClung:
I am in receipt of your letter to me dated June 19, 2008; which requested that I reconsider
my decision in the above matter dated June 6, 2008, and either issue a revised decision
with a new appeal period or extend the appeal period on the original decision.
I received your letter yesterday, June 19, 2008, at 4:38 p.m., as an attachment to an email
sent to me by Deanna Griffith of the City.
After carefully reviewing your request, pertinent Washington case law and the rezone
criteria set forth in Section 19.30.030 of the Spokane Valley Municipal Code (SVMC);
and after giving due deference to your opinion as director of the City department
responsible for enforcing the SVMC; I respectfully deny your request for reconsideration,
as well as the request for me to extend the appeal period on the decision.
Washington case law sets forth a minimum threshold for approving a rezone application,
but does not supersede local zoning ordinances that impose stricter rezone criteria. See
Save Our Rural Environment v. Snohomish County, 99 Wn.2d 363 (1983); and
Henderson v. Kittitas County, 124 Wn. App. 747 (2004), review denied, 154 Wn.2d 1028
(2005).
Under Washington case law, the proponent of a rezone must establish that (1)the rezone
bears a substantial relationship to the public health, safety, morals or general welfare; (2)
circumstances have substantially changed in the area since the property was last zoned,
unless the proposed rezone implements the policies of the local comprehensive plan; and
(3) local criteria for the rezone are met. See Henderson v. Kittitas County,supra, at 752-
753; Bjornson v. Kitsap County, 78 Wn. App. 840; Tugwell v. Kittitas County, 90 Wn.
App. 1 (1998); and Parkridge v. City of Seattle, 89 Wn.2d 454 (1978)
THIRD FLOOR PUBLIC WORKS BUILDING
1026 WEST BROADWAY AVENUE,SPOKANE,WASHINGTON 99260-0245
PHONE: (509)477-7490 • FAX: (509)477-7478 • TDD: (509)477-7133
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. 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); and State v. Bellingham, 25 Wn. App. 33; review
denied 93 Wn.2d 1018 (1979).
On October 28, 2007,the City adopted the Uniform Development Code (UDC), as an
amendment to Title 19 of the Spokane Valley Municipal Code (SVMC). This included
the adoption of Section 19.30.030(2) of the SVMC, which established new criteria for
approving a site-specific zoning map amendment, i.e. a rezone. As you know, the UDC
repealed the City Interim Zoning Code.
Section 19.30.030(2)(a-h) of the SVMC sets forth eight (8) separate criterion for
approving a rezone. Such criteria is much stricter than that for approving a rezone under
the prior City Interim Zoning Code; which simply required that the rezone proposal be
consistent with the Comprehensive Plan, and not be detrimental to the public welfare.
See Section 14.402.020(1), construed together with Sections 14.402.100 and 14.402.120,
of the City Interim Zoning Code.
Section 19.30.030(2)(b) of the SVMC requires that the proposed rezone be consistent
with the City Comprehensive Plan. Section 19.30.030(2)(c) of the SVMC requires that
the proposed rezone bear a substantial relationship to the public health, safety or welfare.
Section 19.30.030(2)(g) of the SVMC requires that a rezone request establish that
"...Circumstances have substantially changed since the establishment of the current
zoning district to warrant the requested map amendment."
The rezone criterion in Section 19.30.030(2)(g) of the SVMC cannot be met by
establishing that the proposed rezone is consistent with the Comprehensive Plan; since
the criterion does not allow that, and consistency with the Comprehensive Plan is listed
as a separate criterion in Section 19.30.030(2) of the SVMC. Such criterion, construed
together with the other rezone criteria in Section 19.30.030 of the SVMC, is clear and
unambiguous.
Page 2 of 3
The current zoning district for the subject property, the Single-family Residential(R-3)
zone of the UDC, was established on October 28, 2007; as part of a City-wide rezoning
effort. Neither the applicant, nor the City Planning Division, presented any evidence
before or at the hearing of substantial changes that have occurred in the area of the site
since the zoning of the site was reclassified to the R-3 district on October 28, 2007.
The rezoning of certain adjoining and neighboring properties to the UR-7* zone of the
City Interim Zoning Code referenced in your letter occurred between 2004 and March of
2007, as stated in my decision. This time frame is clearly before the zoning of the site
was reclassified to the R-3 district of the UDC on October 28, 2007.
The above-referenced properties were reclassified to the Single-family Residential Urban
(R-4) district, a zone with similar but not identical development standards to the former
UR-7* zone, on October 28, 2007; as part of the City-wide rezone. However, such
actions occurred at the same time as the R-3 zoning of the site was established, not after.
The SVMC does not provide any basis for considering changed circumstances that
occurred in the area between the time the current property became zoned UR-3.5 under
the County Zoning Code (1991) or the City Interim Code (2003) and the time the zoning
of the site was reclassified to the R-3 district of the UDC on. October 28, 2007, to satisfy
the changed circumstances requirement of Section 19.30.030(2)(g) of the SVMC.
Section 17 of the Hearing Examiner Rules of Procedure grants the Examiner limited
authority to reconsider or clarify a final decision, to address exceptional circumstances,
including obvious ambiguity. I do not find any ambiguity in the interpretation of the
rezone criteria specified in Section 19.30.030(2) of the SVMC, or the interpretation of
such criteria in my decision.
Section 17 of the Hearing Examiner Rules of Procedure does not authorize the extension
of the appeal period for a request for reconsideration, although this is implied if the
Examiner revises v ses the decision s on based on the request for reconsideration. Your request was
filed only one (1) day before the appeal period expired. I do not find good cause for
extending the appeal period.
The request for reconsideration, and for extension of the appeal period, is denied. The
appeal period will expire at the close of business today, June 20, 2008.
Sincerely,
II
Mi ael C. Dempsey
City of Spokane Valley Hearing Examiner