REZ-17-07 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Application for a Rezone, from the UR-1 )
Zone to the UR-3.5 Zone, under the
City Interim Zoning Code; ) FINDINGS OF FACT,
Applicant: Leonard and Elizabeth Bouge ) CONCLUSIONS OF LAW,
File No. REZ-17-07 ) AND DECISION
I. SUMMARY OF DECISION
Hearing Matter: Application for a rezone, from the UR-1 zone to the UR-3.5 zone; under the
City Interim Zoning Code.
Summary of Decision: Approval, subject to conditions.
II. FINDINGS OF FACT
1. The application seeks approval of a zoning map amendment (rezone), to reclassify 1.24
acres of land from the Urban Residential Estate-1 (UR-1) zone to the Urban Residential-3.5 (UR-
3.5) zone; under the expired City Interim Zoning Code ("Interim Zoning Code").
2. The site is located at the southwest corner of the intersection of Woodruff Road and
Sunderland Drive; and has a site address of 4308 South Woodruff Road, Spokane Valley, WA.
3. The site is currently referenced as County Assessor's tax parcel no. 45324.0801.
4. The applicants, and the owners of the site, are Leonard and Elizabeth Bouge, 1622 South
McDonald Road, Spokane Valley, WA 99216.
5. On September 17, 2007, the applicant submitted a complete application for the proposed
rezone, and for a preliminary short plat to divide the site into two (2) lots for single-family
dwellings, to the City Community Development Department-Planning Division("City Planning
Division").
6. On October 28, 2007, the City revised its Uniform Development Code (UDC), as part of
Titles 17-24 of the Spokane Valley Municipal Code (SVMC). At the same time, the City adopted
new zoning maps throughout the city to implement the revised UDC ("UDC").
7. On November 23, 2007, the City Planning Division issued a Determination of
Nonsignificance (DNS) for the application. The DNS was not appealed.
8. The UDC replaced the City Interim Zoning Code, Phase I Development Regulations,
Interim Application Review Procedures for Project Permits, Interim Subdivision Ordinance, and
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other interim development regulations that the City had adopted by reference from Spokane
County, at the time the City was incorporated in 2003.
9. On May 28, 2008, the Hearing Examiner conducted a public hearing on the application.
The notice requirements for the public hearing were met.
10. The Hearing Examiner heard the application pursuant to Chapter 10.35 of the former
Spokane Valley Municipal Code (SVMC), Chapter 14.402 of the expired City Interim Zoning
Code, and the Hearing Examiner Rules of Procedure.
11. The following persons testified at the public hearing:
Micki Harnois, Associate Planner Greg McCormick, Planning Manager
Spokane Valley Community Development Dept. Spokane Valley Community Dev. Dept.
11707 E. Sprague Avenue, Suite 106 11707 E. Sprague Avenue, Suite 106
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Leornard Bouge Ed and Dawn Burns
1611 S. McDonald Road 4308 S. Woodruff
Spokane Valley, WA 99216 Spokane Valley, WA 99206
12. The Hearing Examiner takes notice of the City of Spokane Valley Com p rehensive Plan,
Municipal Code (including UDC), Interim Zoning Code, Interim Subdivision.Ordinance,
Application Review Procedures for Project Permit, Phase I Development Regulations,
Environmental Ordinance, and Standards for Road and Sewer Construction; other applicable
development regulations; and prior land use decisions in the vicinity.
13. 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.
14. The site is 1.24 acres in size, rectangular in shape, and relatively flat in topography. A
single-family dwelling and swimming pool are located in the southeast corner of the property, and
a detached shed is located along the south property line. See preliminary site plan dated 8-21-07.
The site is vegetated with residential landscaping; and with grass, shrubs, and both deciduous and
evergreen trees.
15. A drainage ditch extends along the north boundary of the site. The residence on the
property is served by an on-site sewage disposal system.
16. The proposed preliminary short plat would divide the site into an easterly .83-acre lot, for
the existing residence; and a .westerly 41-acre lot, for a new residence. The small shed would be
removed for site development.
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17. The preliminary short plat a pp lication is subject to administrative ve re°vrew and approval by the
City Planning Division, without a public hearing; and is contingent on the approval of the rezone
application by the Hearing Examiner.
18. In 1991, the zoning of the site and neighboring land was reclassified to the UR-3.5 zone of
the Spokane County Zoning Code, pursuant to the County Program to Implement the Spokane
County Zoning Code.
19. When the City incor p orated in 2003, it adopted the County Zoning Code by reference, as
the City Interim Zoning Code; adopted the County zoning map by reference as the City interim
zoning; and adopted other County development regulations by reference as interim development
regulations.
20. In 2004, the City revised the development standards for the UR-3.5 and denser urban
residential zones in the City Interim Zoning Code; added the UR-1 zone to the City Interim
Zoning Code, and adopted interim zoning regulations that reclassified the zoning of the site and
neighboring land from the UR-3.5 zone to the UR-1 zone.
21. The UR-1 zoning of the site and neighboring land was extended by the City Council until
the UDC was adopted on October 28, 2007. On October 28, 2007, the zoning of the site and
neighboring land was reclassified to the Single-family Residential Estate(R-1) district of the UD.
22. On May 10, 2006, the City repealed the City Interim Comprehensive Plan, implemented the
current Comprehensive Plan, and updated the City Phase I Development Regulations. The site
and neighboring land are designated in the Low Density Residential category of the
Comprehensive Plan.
23. Neighboring land generally consists of single-family homes on parcels similar in size to the
site. A .42-acre parcel of land is found approximately 300 feet southwest of the site, and several
parcels averaging approximately .3 acre in size are located 660 feet or more west and southwest
of the site. Further to the west, the land is unincorporated and consists of large acreage parcels.
24. A pocket of undeveloped land zoned Single-family Residential Urban(R-4) district is
located approximately 750 feet southwest of the site, which land was previously zoned UR-7*
under the City Interim Zoning Code.
25. The site is located approximately three-fourths (3/4) of a mile southwest of land that is
zoned and developed for commercial, retail and service uses; and lies approximately the same
distance west of a large expanse of public recreational land. A public elementary school is found
a few blocks northeast of the site, at the northeast corner of the intersection of Woodruff Road
and Cimmaron Drive.
26. The City Arterial Street Plan designates 44th Avenue and Schafer Road in the area as
Collector Arterials; and designates Woodruff Road, south of 44th Avenue, as a proposed Collector
Arterial.
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27. The owners of the lot located diagonally southeast of the site, across Woodruff Road; and
the owners of lots located approximately 160 feet, and 350 feet, respectively, northwest of the
site, along the north side of Sunderland Road(a total of 3 ownerships), expressed opposition to
the proposed rezone.
28. The opponents of the application expressed concern regarding changing the character of the
neighborhood dominated by 1-acre lots, placing homes closer together, creating a precedent for
similar rezones; the dilapidated condition of the existing shed on the site; and the proposed
building materials and landscaping for the new residence constructed on the site.
29. The owners of the lots located directly north, west and south of the site; and the owners of
the lot located directly east of the site across Woodruff Road expressed support for the proposed
rezone; and south of the site (a total of 5 ownerships) ; as a welcomed improvement to the
neighborhood. Two of the supporting owners, Ed and Dawn Burns, commented that the
opponents of the rezone application were either located completely around the corner from the
new residence proposed in the short plat application, or would only be able to see the back of the
proposed residence.
30. The Staff Report sets forth relevant policies of the Comprehensive Plan. The policy most
relevant to the proposed rezone is Policy LUP-1.7; which states that zone changes should be
allowed within the Low Density Residential category of the Comprehensive Plan when specific
criteria are met. This may include substantial changes within the area of the rezone site, the
availability of adequate facilities and public services, and consistency with residential densities in
the vicinity of the rezone site.
31. Policies LUP-1.1 and NP-2.1 of the Comprehensive Plan recommend that the character of
existing and future residential neighborhoods be maintained and protected through the
development and enforcement of the City's land use regulations and joint planning.
32. Policy CFP-4.6 of the Comprehensive Plan recommends that new development connect to
public sewer and water.
33. The implementing zones for the Low Density Residential category of the Comprehensive
Plan, under the County Phase I Development Regulations, are the UR-1, UR-3.5 and Urban
Residential-7* (UR-7*) zones. Such regulations limit rezone applications to those that propose
zones that implement the Comprehensive Plan category for the subject property.
34. The UR-1 zone requires a minimum lot size of one (1) acre for a single-family dwelling, and
a maximum density(net) of one (1) dwelling unit per acre.
35. The UR-3.5 zone requires a minimum lot size of 10,000 square feet for a single-family
dwelling, a maximum density(net) of 4.35 dwelling units per acre, a maximum building height of
35 feet (same as UR-1 zone), and minimum setbacks that are somewhat smaller than permitted in
the UR-1 zone.
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36. The proposed rezone is exempt from compliance with the transportation concurrency
requirements of the City Phase I Development Regulations, because the approval of the rezone is
not tied to a specific site plan; as the proposed short plat will be reviewed administratively.
37. City Engineering recommended conditions of approval for the short plat; which generally
found that the short plat will have little impact on the City's street system, and generally deferred
recommended road improvements to such time as a local improvement district is formed in the
area.
38. Various agencies recommended conditions of approval for the proposed short plat; but only
the conditions recommended by the Spokane Regional Health District, County Utilities Division
and possibly the Spokane Clean Air Agency relate directly to the rezone application.
39. The rezone application complies with the sewer and water concurrency requirements of the
City Phase I Development Regulations; as certified by County Utilities and Spokane County
Water District#3, respectively. County Utilities indicated that public sewer would be extended to
the area in 2009. The water district indicated that the existing residence is served by public water.
40. Central Valley School District#356 submitted written comments advising that the district
expects to have room for additional students from the project until the fall of 2008; although it
could not ensure that such students would attend the nearest school, and students may have to be
transported to school in other areas.
41. The school district asked that if new homes in the district were completed after the fall of
2008, the City postpone approval of such development pursuant to RCW 58.17.110, and the City
Comprehensive Plan, pending the availability of additional school facilities; or condition approval
on the developer paying the City a per dwelling unit fee "...equal to the district's eligibility for
school impact fees." See letter dated 11-26-07 from CVSD.
42. The Comprehensive Plan does not adopt levels of service for public schools, and allows
each school district to adopt its own levels of service.
43. The Comprehensive Plan states that Central Valley School District's greatest need is to
develop new elementary school capacity in the east end of the district; the district recently
acquired two properties in the north Greenacres area for a new elementary school, the district will
need to construct a new high school and middle school in the next 20 years, the district currently
has a site for a new middle school in the Liberty Lake area, and a number of elementary schools
(including Greenacres Elementary) need to be completely remodeled.
44. The Comprehensive Plan indicates that the City currently has adequate park capacity to
meet the level of service adopted in the Comprehensive Plan of 1.92 acres per 1,000 persons, and
plans to purchase additional parkland by 2011 to maintain a surplus of parkland. City Parks and
Recreation did not comment on the project.
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45. The City Phase I Development Regulations do not require direct concurrency for schools
and parks. Accordingly, the Examiner lacks authority to condition or deny the rezone application
based on capacity impacts to such public services.
46. The site is served by a high level of public services, is located near a designated Collector
Arterial(44th Avenue) and a proposed Collector Arterial (Woodruff, south of 44th), is located near
an elementary school, and is located within a reasonable distance of commercial uses and public
recreational land.
47. Public agencies and neighboring property owners did not object to the environmental impact
of the proposed rezone, or appeal the DNS issued for the application. Most of the owners of
property lying directly adjacent to or across the street from the site expressed support for the
proposal. The approval of the rezone is unlikely to have any significant adverse impact on
neighboring properties.
48. The Staff Report analyzed the consistency of the rezone application with the criteria for
approval of a site specific zoning map amendment under the City Interim Zoning Code and Phase
I Development Regulations. The Hearing Examiner concurs with such analysis, as supplemented
and qualified herein.
Based on the above findings of fact, the Hearing Examiner enters the following:
III. CONCLUSIONS OF LAW
1. Under Washington case law, a complete application for a rezone does not create any vested
rights. See Pine Forest Owners Ass'n v. Okanogan County, 124 Wn. App 1016 (2004); Teed v.
King County, 36 Wn. App. 635 (1984).
2. In Noble Manor v. Pierce County, 133 Wn. 2d 269, 278 (1997), the State Supreme Court
held that the vesting of an application for a land division, under the development regulations in
effect at the time of the application, applies to the uses disclosed in the application.
3. Pursuant to RCW 58.17.033, a preliminary short plat application is subject to review and
approval under the zoning and other development regulations in place when a complete
application for the preliminary short plat was submitted.
4. Under Washington case law, municipalities are free to develop vesting schemes best suited
to the needs of a particular locality; and provide vested rights to development applications not
otherwise applicable under Washington statutes or case law. Erickson &Associates, Inc. v. City
of Seattle, et. al, 123 Wn.2d 864 (1994).
5. The City Interim Application Review Procedures for Project Permits ("Interim Review
Procedures") were in effect when the rezone application and preliminary short plat application
were submitted as complete on September 17, 2007.
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6. Section 13.300.110 of Interim Review Procedures provided that the development
regulations in effect on the date a complete application is submitted and fees are paid will be the
standard of review, absent statute or ordinance provisions to the contrary.
7. Under Section 13.300.110 of the Interim Review Procedures, and the principles of the
Noble Manor case, the rezone portion of the application is subject to review as a proposed rezone
from the UR-1 zone to the UR-3.5 zone, under the expired City Interim Zoning Code and City
Phase I Development Regulations; but only for the development disclosed in the preliminary short
plat application submitted with the rezone application on September 17, 2007.
8. The City Interim Zoning Code
authorized the approval of a site-specific zone
reclassification, if the proposed rezone is consistent with the Comprehensive Plan and is not
detrimental to the public welfare. See Zoning Code 14.402.020(1); and references to Zoning
Code 14.402.020(1) in Zoning Code 14.402.020 and Zoning Code 14.402.160.
9. 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) the 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)
10. Some circumstances have changed in the area since the zoning of the site was reclassified to
the UR-1 zone in December of 2004; including the adoption of the City Comprehensive Plan and
amendment of the City Phase I Development Regulations in 2006, and the pending extension of
public sewer to the site and area in 2009. However, the reclassification of the zoning of the site
and neighboring land to the R-1 district of the UDC on October 28, 2007 represents changed
circumstances that do not support the approval of the rezone application.
11. The proposed rezone, as conditioned, conforms to the Comprehensive Plan, and complies
with the City Phase I Development Regulations.
12. The proposed rezone, as conditioned, bears a substantial relationship to, and will not be
detrimental, to the public health, safety, morals or general welfare.
13. The rezone application satisfies the rezone requirements mandated by both Washington case
law and City zoning regulations. The proof of changed circumstances is not required.
14. The criteria for approving a rezone under the UDC is more stringent than the rezone criteria
set forth in Section 14.402,020(1) of the City Interim Zoning Code. This includes a requirement
that the property to be rezoned is adjacent and contiguous to property of the same or higher
classification, and circumstances have changed substantially since the establishment of the current
zoning district to warrant approval of the rezone. See Section 19.30.030 of UDC.
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15. The approval of the rezone application would allow the applicant to develop the site under
the development standards of the UR-3.5 zone for the development disclosed in the preliminary
short plat application, if approved administratively by the City Planning Division; but will not
change the underlying zoning of the site in the R-1 district of the UDC.
16. The approval of the rezone application is unlikely to establish a precedent for similar
applications; because there are no pending applications to rezone property in the area under the
City Interim Zoning Code, the underlying R-1 district zoning of the property under the UDC will
not be changed, and the rezone criteria under the UDC is more stringent than the rezone criteria
under the City Interim Zoning Code.
17. The proposed rezone, as conditioned, complies with the UR-3.5 zone, the City Interim
Zoning Code, and other applicable development regulations.
18. The procedural requirements of the State Environmental Policy Act and the City
Environmental Ordinance have been met.
19. Approval of the zone reclassification, as conditioned, is appropriate under the City Interim
Zoning Code, the City Phase I Development Regulations, Chapter 10.35 of the Spokane Valley
Municipal Code (SVMC), and the rezone criteria established by Washington case law.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law above, the application for a zone
reclassification of the site to the Urban Residential-3.5 (UR-3.5) zone is hereby approved, subject
to the conditions of the various agencies specified below.
Any conditions of approval of public agencies that have been added or significantly altered
by the Examiner are italicized.
This approval does not waive the applicant's obligation to comply with all other
requirements of other public agencies with jurisdiction over land development.
Conditions of Approval
CITY DEPARTMENT OF COMMUNITY DEVELOPMENT- PLANNING DIVISION:
1. The applicant, including the owners and developers of the property, and their successors in
interest, shall comply with the conditions of approval set forth in this decision.
2. Future development of the site under the Urban Residential-3.5 (UR-3.5) zone of the
expired Spokane Valley Interim Zoning Code is limited to the development disclosed in the
preliminary short plat application submitted on September 17, 2007. A maximum of two (2) lots,
and two (2) single-family dwelling units, are allowed on the site.
HE Findings, Conclusions and Decision REZ-17-07 Page 8
3. All other site development shall comply with the Sin, le farndy Residential Estate (R-1)
district, and other provisions of the UDC. The underlying zoning of the site shall remain R-1.
SPOKANE COUNTY DIVISION OF UTILITIES:
1. A wet (live) sewer connection to the area-wide public sewer system shall be constructed. A
sewer connection permit is required. Commercial developments shall submit historical and or
estimated water usage prior to the issuance of the connection permit in order to establish sewer
fees.
2. The applicant shall submit expressly to Spokane County Division of Utilities, under separate
cover, only those plan sheets showing sewer plans and specifications for the public sewer
connections and facilities for review and approval. Commercial developments shall submit
historical and or estimated water usage as part of the sewer plan submittal.
3. Sewer plans acceptable to the Division of Utilities shall be submitted prior to the issuance of
the sewer connection permit.
4. Any water service for this project shall be provided in accordance with the Coordinated
Water System Plan for Spokane County, as amended.
SPOKANE COUNTY CLEAN AIR AGENCY:
1. Dust emissions during demolition, construction, and excavation projects shall be controlled.
Appropriate measures shall include but are not limited to the use of water sprays, tarps, sprinklers
or suspension of activity during certain weather conditions.
2. Measures shall be taken to avoid the deposition of dirt and mud from unpaved surfaces onto
paved surfaces. If tracking or spills occur on paved surfaces, measures must be taken immediately
to clean these surfaces.
3. Debris generated as a result of this project shall be disposed of by means other than burning.
4. All traveled surfaces (i.e. ingress, egress, parking areas, access roads, etc.) should be paved
and kept clean to minimize dust emissions.
5. If objectionable odors result from this project, effective control apparatus and measures shall
be taken to reduce odors to a minimum.
6. Special attention shall be given to proper maintenance of diesel-powered construction
equipment to reduce the impact of diesel exhaust, a suspended carcinogen.
7. A Notice of Construction and Application for Approval is required to be submitted and
approved by SCAPCA prior to the construction, installation, or establishment of an air pollution
source. This includes emergency generators rated at 500 hp (375 kW) or higher, natural gas
HE Findings, Conclusions and Decision REZ-17-07 Page 9
heating equipment units rated at 4 MMBTU/hr or higher(input), and heating equipment units
fired with other fuels (e.g. diesel) rated at 1 MMBTU/hr (input) or higher. The applicant shall
contact SCAPCA for a Notice of Application.
8. A Notice of Intent must be submitted to SCAPCA prior to any demolition project or
asbestos project. An asbestos survey must be done by an AHERA accredited building inspector
prior to the demolition or renovation of buildings to determine if asbestos-containing material is
present at the site. Contact SCAPCA for a Notice of Intent application.
SPOKANE REGIONAL HEALTH DISTRICT:
1. The sewage disposal method shall be authorized by the Director of Utilities, Spokane
County.
2. Water service shall be coordinated through the Director of Utilities, Spokane County.
3. Water service shall be by an existing public water supply when approved by the Regional
Engineer (Spokane), State Department of Health.
4. A public sewer system will be made available for the uses developed on the site.
5. The use of private wells and water systems is prohibited.
DATED this 7TH day of July, 2008
CITY HEARING EXAMINER PRO TEM
Mich,el C. Dempsey, W °' 47,' 5
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NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPW.
Pursuant to former Section 10.35.150 of the City of Spokane Valley Municipal Code
(SVMC), as amended, the decision of the Hearing Examiner on an application for a zone
reclassification is final and conclusive unless within fourteen (14) calendar days from the
Examiner's written decision, a party with standing files an appeal of the decision with the City
Council of the City of Spokane Valley, City Hall, 11707 E. Sprague Avenue, in Spokane Valley,
Washington; in accordance with all the requirements of former SVMC#10.35.150 of the SVMC.
This decision was mailed by certified mail to the Applicant, and by first class mail to other
parties of record, on July 7, 2008. THE APPEAL CLOSING DATE IS JULY 21, 2008.
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, (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, (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.
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