APP-02-06 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Appeal of Administrative Determinations )
issued by the City Community Development )
Department, in the B-2 and B-3 zones; ) FINDINGS OF FACT,
Appellant: Lonnie Eilmes ) CONCLUSIONS OF LAW,
Site Owner: Rock Placing Company, Inc. ) AND DECISION
File No. APP-02-06 )
)
I. SUMMARY OF DECISION
Hearing Matter: Appeal of certain administrative determinations rendered by the City
Community Development Department; relating to a business that stores, displays, delivers and
installs large boulders and other rock products for profit.
Summary of Decision: Dismissal of appeal, based on the lack of jurisdiction by the Hearing
Examiner to consider the appeal.
H. FINDINGS OF FACT
Procedural Information
1. On July 20, 2006, Lonnie Eilmes, through his attorney, Donna Beatty, submitted a
complaint letter to Mike Connelly, Spokane Valley City Attorney. The letter contended that the
City Community Development Department had improperly allowed Rock Placing Company, Inc.
(RPC) to expand its operations onto property located directly west of its existing business at
14115 E. Trent Avenue; in violation of the City Interim Zoning Code and the City Nuisance
Ordinance.
2. On December 5, 2006, Cary Driskell, Deputy City Attorney, sent a response letter to Donna
Beatty, with attachments; which letter advised that it was to serve as the City's final
determination regarding Lonnie Eilmes' complaint regarding RPC.
3. Cary Driskell's letter enclosed a copy of a December 1, 2006 memorandum from City
Compliance Officer Bill Schultz, which included notes from Schultz's investigation of the site;
and a copy of a December 5, 2006 letter from Greg McCormick of the City Community
Development Department; which documents responded to the allegations in Beatty's letter dated
July 20, 2006.
4. The memorandum from Bill Schultz advised that there were no noise violations on the site
that were chargeable, based on a"noise reading inspection" conducted on August 9 and 10,
2006, and on September 12 and 14, 2006; and that Schultz hadn't note any dust violations on
such dates, other than a small dust problem from vehicle travel on the graveled portion of
Rockwell Avenue located adjacent to the site.
HE Findings, Conclusions and Decision APP-02-06 Page 1
A 5. Greg McCormick's letter stated that the City had determined that the current use of the
property was not in violation of City code provisions, Lonnie Eilmes did not timely challenge
Spokane County's determination in 2000 that RPC's use was a permitted use in the Community
Business (B-2) zone, and the City was not required to give public notice of its 2005 decision
approving a boundary line adjustment for the RPC property.
6. On December 19, 2006, Lonnie Eilmes, through his attorney, Donna Beatty, filed an appeal
of the City's determination issued on December 5, 2006; by submitting a completed appeal form
and an explanatory letter, and paying a$1,000 appeal fee to the City Community Development
Department.
7. Lonnie Eilmes mailed a copy of a notice of hearing for the appeal to the owners of property
lying adjacent to the RPC site, and posted a notice of hearing on the RPC site at least 15 days
prior to the public hearing date of June 14, 2007; as required by the City Community
Development Department.
8. The notice of hearing advised that all interested persons may testify at the hearing and
submit written comments before or at the hearing.
9. On June 14, 2007,the Hearing Examiner conducted a public hearing on the administrative
appeal.
10. The following person testified at the public hearing:
Marina Sukup Taudd Hume
Spokane Valley Planning Dept. Foster Pepper
11707 E. Sprague Suite 106 422 W. Riverside, Suite 1310
Spokane Valley, WA 99206 Spokane, WA 99206
Donna Beatty Lonnie Eimes
421 W. Riverside, Suite 610 14014 E. Rockwell Avenue
Spokane, WA 99021 Spokane Valley, WA 99216
Audra Hess April Henderson
14008 E. Rockwell 14017 E. Rockwell
Spokane Valley, WA 99216 Spokane Valley, 99216
William Shultz Eric Lamb
City of Spokane Valley City of Spokane Valley
11707 E. Sprague, Ste 106 117074 E. Sprague, Ste 106
Spokane Valley, WA 99216 Spokane Valley, WA 99206
Bob Duvan William Schultz
7002 N. Adams Street Spokane Valley Code Enforcement
Spokane, WA 99208 11707 E. Sprague
Spokane Valley, WA 99206
HE Findings, Conclusions and Decision APP-02-06 Page 2
11. The Examiner heard the appeal pursuant to Chapter 10.35 of the City Municipal Code
(Hearing Examiner Ordinance), and the City Hearing Examiner Rules of Procedure.
Items in Record
12. The Hearing Examiner takes notice of the City of Spokane Valley Comprehensive Plan,
Interim Zoning Code, Interim Subdivision Ordinance, Application Review Procedures for
Project Permits, Hearing Examiner Rules of Procedure, and Municipal Code; and prior land use
decisions for the site and in the vicinity.
13. During the public hearing, Lonnie Eilmes submitted an affidavit from Dan Bruck, an
acoustical expert, which summarized the measurements of the sound levels generated in the rear
yard of Eilmes' property by RPC's operations on May 24, 2007. RPC objected to the
admissibility of the sound study performed by Bruck, except to show whether Bill Schultz had
conducted his noise investigation in conformance with City procedures.
14. Pursuant to a stipulation by the parties, the Hearing Examiner ruled that any evidence of
sound studies conducted by the parties was not admissible to show whether RPC's operations
were in compliance with the maximum permissible noise levels set forth in WAC 173-60-040 on
the dates of such studies. The purpose of the stipulation was to avoid a prolonged hearing and
the submittal of expert testimony on such issue.
15. The Hearing Examiner ruled, over RPC's objection, that the sound study information
submitted by the parties during the hearing was also admissible to determine whether Bill
Schultz had conducted his noise investigation of the site in accordance with the requirements of
chapter 173-60 WAC.
16. During the public hearing, RPC submitted the testimony of Robert Duven, an acoustical
expert; who commented on the adequacy of the noise investigation conducted by Bill Schultz.
17. During the public hearing, Lonnie Eilmes offered to submit a DVD of operations
conducted on RPC's site adjacent to Eilmes' property; which included sounds generated by
RPC's operations, and a voiceover narrative by Eilmes commenting on the noise, vibrations and
dust generated by RPC's operations on certain dates in 2004 and 2005.
18. During the public hearing, RPC offered to submit a DVD of a noise study conducted by
Robert Duven, regarding sound levels generated by RCP's operations on February 7, 2007; for
the purpose of rebutting the Eilmes DVD and to demonstrate the similarity of RPC's operation to
a nursery/greenhouse use under the City Interim Zoning Code.
19. The Hearing Examiner ruled that the DVDs offered by Eilmes and RPC were admissible
only for the purpose of determining whether the site was consistent with the uses permitted on
Y prP g p
the site under the City Interim Zoning Code. Both DVDs were submitted to the Examiner after
the public hearing.
HE Findings, Conclusions and Decision APP-02-06 Page 3
20. After the public hearing, on June 22, 2007, Larry Eilmes submitted a copy of its appeal,
which was already part of the record; and also submitted a copy of a transcript of a deposition
taken of Robert Duven on March 12, 2007, regarding the method used by Duven to conduct his
sound study of the RPC site on February 7, 2007; along with a brief letter from Donna Beatty.
21. On June 22, 2006, RPC's attorney, Taudd Hume, submitted a letter by email to the
Examiner; which objected to Eilmes' submittal of a copy of Robert Duven's deposition, on the
basis that the record was closed.
0 22. The Hearing Examiner ruled that the Duven deposition was admissible to show the
circumstances under which the Duven sound study was performed, which is relevant to the issue
of whether RPC's operations are a permitted use under the Zoning Code.
23. The Hearing Examiner ruled that the DVD submitted by RPC was not admissible for the
purpose of impeaching or supporting the sound analysis conducted by Bill Schultz, or to
demonstrate whether RPC's operations complied with the maximum permissible noise levels set
forth in WAC 173-60-040 on February 7, 2007.
24. The Hearing Examiner conducted site visits on June 30, 2007 and July 3, 2007. On July 3,
2007, the Hearing Examiner sent an email to the parties commenting on the site visits, and
making final rulings on the admissibility of evidence.
25. Subject to the above limitations on the evidence submitted by the parties, the record
includes the documents in the project file at the time of the public hearing, the exhibits and
testimony submitted at the public hearing, the DVDs and correspondence submitted after the
public hearing by the parties on or before June 25, 2006, the Examiner's email dated July 3,
2007, and the items taken notice of by the Hearing Examiner.
Description of Site
26. The site is approximately four(4) acres in size and relatively flat in topography. The site is
currently referenced as County Assessor's tax parcel no. 45022.4510.
27. The east portion of the site is approximately 3.2 acres in size, lies directly between Trent
Avenue (State Route No. 290) and Rockwell Avenue, and lies 320 feet west of Best Road.
28. The west portion of the site is approximately .7 acres in size, lies over 230 feet north of
Trent Avenue, lies a varying distance of 115-130 feet south of Rockwell Avenue, and lies 350
feet east of Evergreen Road.
29. The southerly one-third(southerly 150 feet) of the east portion of the site, approximately, is
zoned Regional Business (B-3) under the City Interim Zoning Code. The remainder of the east
portion of the site, and the entire west portion of the site, is zoned Community Business (B-2).
30. The south half of the east portion of the site is improved with a tall, 2-story, metal-sided
building with a main floor area of 5 040 square feet. The building is used for office, storage and
g � q g � g
HE Findings, Conclusions and Decision APP-02-06 Page 4
display for the business. A paved parking area, containing up to 30 parking spaces, lies between
J the building and Trent Avenue. The remainder of the site has a hard gravel surface.
31. The southeast corner of the site is improved with a residence constructed in 1934, which is
utilized as a caretaker's residence and/or for office use. A significant amount of residential
landscaping is located around the converted residence. Landscaping and a water feature are
located along the frontage of the site with Trent Avenue.
32. A see-through chain link fence encloses the east portion of the site, except for the paved
parking area; and also borders the north and west boundaries of the west portion of the site. A
1 gate in the chain link fencing allows access between the east and west portions of the site.
33. A gate is also located in the middle of the chain link fencing that extends along the north
boundary of the east portion of the site, adjacent to Rockwell Avenue. At the time of the
Hearing Examiner's site visits, the gate was locked, and access to the gate was blocked off by
rocks and other storage.
34. A 6-foot high, concrete block wall (Jersey barrier-type) extends from east to west through
the west portion of the site, approximately 20 feet south of the north property line. Maturing
evergreen trees are spaced several feet apart along the outer boundaries of the north half of the
east portion of the site, along with a sloping berm. See 2006 aerial photo, and photos in Exhibit
15.
35. A large quantity of large boulders and rocks is stacked and stored outdoors on the site;
including along the perimeter of the north half of the east portion of the site, and along the south
side of the concrete wall that extends through the west portion of the site. See 2006 aerial photo.
Outdoor show areas for rocks are located on the east portion of the site.
36. The majority of the rock inventory stored on the site consists of rocks 2-5 feet in length,
and weighing between 500 pounds and five (5) tons. The rocks are stored up to a height of 12-15
feet.
37. RPC uses a large, tall crane(s) assembly ("grizzly"), which attaches to the end of a rock
truck and has grappling hooks; to unload dump trucks delivering large rocks or boulders to the
site, place the rocks onto large rock trucks, place and stack the rocks on the site, and load the
rock trucks with boulders to take to delivery and job sites.
38. Approximately 95% of RPC's business consists of delivering large rocks to development
sites, including up to eight (8)truckloads of rocks per day. The rocks are installed on the
development sites either by RPC's employees or the individual site owner; and are used for
retaining walls, natural steps and landscape rockery.
39. Approximately 5% of RPC's business involves rock products that customers purchase and
carry away from the site; which rock generally consists of small rock products such as pavers,
hand-stacked rocks and specialty rocks.
HE Findings, Conclusions and Decision APP-02-06 Page 5
1
40. RPC stores all its equipment and vehicles for the business on the site, most of it outdoors.
This includes several rock trucks, a crane assembly(s), large track hoes (excavators), a front end
loader,company vehicles and employee vehicles. The rock trucks each have 32 tires, consisting
of four (4) sets of 8-wheel tire groupings.
41. RPC operates its business on the site year round, Monday through Saturday; with a starting
time of approximately 7:00 a.m., a typical quitting time of 6:00 to 7:00 p.m. in the summertime,
a quitting time of 10:00 p.m. a few times of the year, and a typical quitting time of 4:00 p.m. to
5:00 p.m. at other times of the year; for yard operations. RPC may perform some site
maintenance on Sundays, such as power washing.
42. Posted summer office hours on the site, which are more limited than the hours for yard
operations on the property, are currently 8:00 a.m. through 6:00 p.m., and 9:00 a.m. to 3:00 p.m.
on Saturday.
43. The Eilmes DVD shows operations conducted on the west portion of the site adjacent to the
Eilmes property on an unidentified date prior to the concrete wall being installed, on June 2,
2004 before the concrete wall was installed, and on August 10, 2005 after the sound wall was
installed; as observed by Lany Eilmes from his property. This includes operation of a crane and
rock truck, front end loader and track hoe(excavator) at different times on the site.
44. The RPC DVD shows operations conducted on the west portion of the site, along the south
side of the concrete wall that extends through the west portion of the site, and within the yard, on
February 7, 2007; with the concrete wall in place and the crane and rock truck loading and
unloading rocks. Sound measurements illustrated on the DVD were taken at the north property
line of the west portion of the site.
Surrounding Conditions
45. The land lying directly north and northwest of the west portion of the site is zoned Urban
Residential-3.5 (UR-3.5); and is developed with single-family homes constructed between 1942
and 1972, on urban sized lots that front along Rockwell Avenue. This includes the Eilmes
property(parcel no. 45022.5204). See County Assessor's map for the north 1/2 of Section 2, and
County Assessor parcel information in file.
46. The land lying south of the west portion of the site is zoned B-3 and B-2, and is improved
with a union hall. The parcel lying west of the site and the union hall property is zoned both B-2
and B-3, and is improved with a restaurant and bar.
47. The land lying directly north of the east portion of the site, across Rockwell Avenue, is
zoned UR-3.5 and undeveloped. Further to the north are found single-family homes on urban
sized lots. The land located east of the northerly one-third(1/3) of the east portion of the site,
along Rockwell Avenue, is zoned Urban Residential-7 (UR-7) and generally consists of single-
family homes on urban sized lots.
HE Findings, Conclusions and Decision APP-02-06 Page 6
•
48. The other land lying east of the site is zoned B-2, or both B-2 and B-3; and is developed
with a car wash, auto sales, and miscellaneous retail and office uses oriented toward Trent
Avenue.
49. The land lying south of the site across Trent Avenue is zoned Heavy Industrial (I-3). The
south side of Trent Avenue in the area is bordered by an approximately 340-foot wide railroad
right of way, which accommodates a large volume of daily train traffic. The land lying south of
the railroad right of way in the area consists of a 500-acre parcel improved with a large
aluminum fabricating plant.
50. Trent Avenue is a state highway that is improved to five (5) lanes, including a center turn
lane, in the area. The City Arterial Road Plan designates Evergreen Road to the east, north of
Trent Avenue, as a Minor Arterial. Rockwell Avenue is considered a Local Access street.
Land Use History of Site
51. In 2000, the east portion(3.2 acres) of the site was acquired by Terry and Marilyn Frost;
who leased such portion of the site to RPC, and are principles in RPC. At the time, such portion
of the site was zoned Community Business (B-2) and Regional Business (B-3) under the
Spokane County Zoning Code.
52. On August 29, 2000,the Spokane County Division of Building and Code Enforcement held
a pre-application meeting with Terry Frost/RPC and other public agencies regarding
development of a rock business on the east portion of the site. The notes from the meeting noted
that the proposed use consisted of"general retail sales-rock(for landscaping), and that a change
of use would be required to convert two existing residences for an office and a caretaker's
residence.
53. The pre-application meeting notes complied by County staff indicated that the applicant
would be required to provide a site plan that detailed structure sizes in square feet, structure
heights, the percent of building coverage calculations and structure setbacks; the total square
footage of the office use and the retail use proposed; a detailed landscaping plan for the
perimeter landscaping required by the County Zoning Code; and the location and height of any
existing and proposed fencing; among other items.
54. The pre-application meeting notes advised that "all storage shall be maintained within a
completely enclosed building or behind sight-obscuring fencing...", and shall not occur in any
front yard.
55. On October 6, 2000, County Engineering advised RPC's engineer, Chuck Simpson, that it
had decided it would not issue an approach permit for a driveway connection from the east
portion of the site to Rockwell Avenue; due to County Engineering's concerns over dust and
weight impacts from truck traffic on a gravel road,the residential character of the neighborhood,
and the adequacy of access for RPC's use via Trent Avenue.
HE Findings, Conclusions and Decision APP-02-06 Page 7
56. In December of 2000, Spokane County issued a change of use permit for the east portion of
the site.
57. In 2001, the main building on the east portion of the site was constructed in 2001. In 2002,
the County issued a certificate of occupancy for the east portion of the site. See staff report and
notice of decision in City File No. TUP-05-04, and County Assessor parcel information for site.
The change of use permit, certificate of occupancy and any site plan, landscaping plan and other
information that may have been submitted by the applicant to obtain such approvals are not
contained in the record.
58. On March 31, 2003, the City of Spokane Valley was incorporated, which included the
subject property and surrounding land. On the same date,the City adopted by reference, as City
land use controls, the County's Comprehensive Plan, Zoning Code, Phase I Development
Regulations, official zoning maps and other development regulations; with certain revisions not
relevant to the current application. This included the retention of the B-2 and B-3 zoning of the
site.
1 59. On July 2, 2003, RPC entered into a 1-year, renewable lease agreement with the owner of
the union hall property located west of the east portion of the site, to lease the north 100 feet of
such property"...for the purpose of maintaining a storage yard for accumulating and delivering
rocks and boulders to be used in landscaping; along with a temporary easement along the east
and west boundary of the union hall property to Trent Avenue for trucking of rocks and boulders
to and from the leased property".
60. RPC's use of the north 100 feet of the union hall property for rock storage caused Lonnie
Eilmes and approximately 20 other residents to complain to the City about RPC's operations;
including the submittal of letters, a petition, and testimony at a City Council meeting. The
complaints addressed dust, noise, diesel fuel smell, hours of operation, commercial truck use of
neighborhood streets, impacts to land stability from dropping heavy rocks on the site, and
potential damage to private and public utility installations.
61. The above complaints were preliminarily investigated by City Community Development
Department staff; which indicated in an November 7, 2003 internal memo that it anticipated
formally notifying RPC about possible violations of the City Nuisance Ordinance, seeking
voluntary compliance from RPC to remedy the violations, and further investigating any previous
permitting for the existing RPC operation on the east portion of the site.
62. A internal Department memorandum dated November 5, 2003 from City Code
Enforcement Officer Chris Berg indicated that a code enforcement file compiled by him
regarding RPC's operations on the site had been lost; which file contained the original complaint
filed by Lonnie Eilmes in 2003, a contact log, photographs, building records, permits and other
investigative information. The memorandum also indicated that Berg, after a lengthy
investigation, was unable to determine any Zoning/Building Code violations.
63. On May 12, 2004, RPC submitted an application to the City Community Development
Department for a temporary use permit (TUP) under the City Interim Zoning Code, to allow the
BE Findings, Conclusions and Decision APP-02-06 Page 8
temporary storage of large boulders on the north 100 feet of the union hall property, in
association with RPC's operations on the east portion of the current site; for a 1-year period
terminating on May 31, 2005.
64. On May 12, 2004, the Department issued a Determination of Completeness for the TUP
application; but did not require the applicant to post a Notice of Application on the site, and did
not mail a Notice of Application to adjacent property owners; under the City's Application
Review Procedures for Project Permits.
65. On May 20, 2004, Larry Eilmes submitted a letter opposing the issuance of a permit to
RPC for use of the union hall property. The letter detailed the impacts to Eilmes' property from
RPC's use of the property, and advised that the City had failed to respond to his earlier
complaints.
66. On May 28, 2004, RPC exercised its option to renew the lease agreement for the north 100
feet of the union hall property, for a 1-year period.
67. On June 10, 2004, the City Community Development Department issued a combined "Staff
Report and Notice of Decision" (hereinafter "TUP decision") in File No. TUP-05-04. The TUP
decision approved a temporary use permit for a nonrenewable 6-month period, until December
11, 2004; to allow RPC to use the north 100 feet of the union hall property for the storage of
large boulders.
68. The TUP decision required that boulders be placed in a manner that minimized
disturbances to abutting and adjacent properties; prohibited the dropping of large boulders at any
time, including their being dropped from large dump trucks or similar large trucks at the time of
initial delivery; required the installation of a 6-foot high solid wood fence along the north
property line, and required the storage of any large boulders to be set back a minimum of 20 feet
from the north property line; limited the loading and unloading of builders to Monday through
Friday, between the hours of 8:00 a.m. and 5:00 p.m.; required on-site noise generation to
comply with the noise standards set forth in WAC Chapter 173-60; required compliance with
conditions recommended by the Spokane County Air Pollution Control Authority regarding dust
emissions; and required the updating of access permits to Trent Avenue for the use.
69. The TUP decision found that Spokane County had previously authorized RPC's use of the
east portion of the current site as a permitted general retail sales use in the B-2 and B-3 zones,
concurred with the County's decision making process as being applicable under the City's
Interim Zoning Code, concluded that the proposed temporary use consisted of general retail sales
that were a permitted use in the B-2 and B-3 zones, and found that RPC was using the union
hall's two (2) accesses to Trent Avenue as a drive through area for trucks dropping off and
unloading large boulders stored on the north end of the union hall property.
70. The TUP decision found that screening was needed for the properties located north of the
union hall property, due to the intensity of the proposed use; and to mitigate visual, dust and
noise impacts; and that a 20-foot setback from the property line for the storage of boulders, and
HE Findings, Conclusions and Decision APP-02-06 Page 9
the installation of a 6-foot high solid wood fence along the north property line of the union hall
property, could substitute for a landscaping requirement along the north property line.
71. The TUP decision indicated that it could be appealed within 14 days to the City's Hearing
Examiner. The TUP decision was issued to RPC, but notice of the decision was not mailed to
adjacent property owners. The TUP decision was not appealed before the TUP expired on
December 11, 2004.
72. The City Department of Community Development, by practice, does not mail a copy of the
notice of decision for a TUP to persons other than the TUP applicant. See testimony of Maria
Sukup, Director of the City Community Development Department.
73. RPC continued to use the north 100 feet of the union hall property for its rock and
landscaping business after the TUP expired on December 11, 2004, up until the current time.
74. The Staff Report submitted by the City Community Development Department for the
current appeal indicates that the union hall later sold the north 110 feet of the union hall property
to RPC, the City approved a boundary line adjustment to divide such land from the remainder of
the union hall property in City File No. BLA-01-05, and the boundary line adjustment was
recorded with the County Auditor on March 9, 2006. Such land division is reflected on current
County Assessor maps.
75. The appeal documents submitted by Lonnie Eilmes include a boundary line
adjustment/elimination application form, and submittal checklist forms that are apparently used
by the City Community Development Department; which forms bear a"revised" date of July 13,
2006.
76. The record does not include a copy of any boundary line adjustment/certificate of
exemption form completed by the property owners and approved by the Community
Development Department for the division of the union hall property.
77. The Staff Report for the current appeal indicates that it is not clear whether Spokane
County made a formal determination regarding the classification of RPC's use of the east portion
of the site, or classified such use as part of the review of RPC's use by County planning staff;
and notes that such determination was not appealed.
78. The Staff Report compared RPC's use of the site to a retail/wholesale nursery, with a large
amount of outdoor storage of all types of materials; including trees, shrubs, beauty bark,
decorative rock, retaining wall blocks and other gardening and landscape materials; and notes
that nurseries uses large equipment such as dump trucks and front end loaders to move, load and E..
unload such items from delivery trucks or into customer vehicles.
79. The Staff Report found the storage standards of the B-2 zone to be somewhat ambiguous,
in that the B-2 zone permits such uses as wholesale/retail nurseries and greenhouses that
"...typically require most of the stock in trade to be stored outside..", but the storage standards
for the B-2 zone limit outdoor storage of items in the B-2 zone to the hours the business is open,
BE Findings, Conclusions and Decision APP-02-06 Page 10
except to allow the continuous display of recreational vehicles "...and other machinery normally
displayed for sales purposes on an open lot...".
80. The Staff Report viewed the exception in the storage standards of the B-2 zone for
recreational vehicles and other machinery normally displayed on an open lot to be an
acknowledgement that the City Interim Zoning Code allows uses that inherently require outdoor
storage as a part of the use; and, accordingly, RPC's use of the site for the wholesale/retail sales
of boulders and rocks (landscaping materials) should be permitted subject to outdoor storage
being screened with a sight-obscuring fence.
81. The City Community Development Department submitted photo reprints of two (2)
landscape supply businesses located along major arterials in the city, on land zoned B-3;
featuring the outdoor and unscreened storage of piles of beauty bark, dirt, various sized rock
products, and stacks of concrete pavers; and showing use of a front end loader to move materials.
82. The City Community Development Department submitted photo reprints of a nursery
located along a major arterial in the city landscape, on land zoned B-2 and B-3; showing the
outdoor and unscreened storage and display of trees, shrubs and other growing plants.
83. The City Community Development Department submitted photo reprints of a nursery and
landscape supplies business located along a state highway, on land zoned B-3, UR-7 and Urban
Residential-22 (UR-22); showing the outdoor and unscreened storage of nursery stock, a small
volume of gardening supply materials and landscape materials, and some stacks of slate rocks.
84. The City Community Development Department did not provide any zoning history
regarding the properties improved with landscape supply or nursery businesses displayed in the
photo reprints submitted by the City; as to the legality of such uses, or their status as
nonconforming uses under the current zoning of such properties.
III. CONCLUSIONS OF LAW
1. Sections 10.30.150 through 10.30.600 of the Spokane Valley Municipal Code (SVMC), as
amended by City Ordinance No. 06-005, set forth detailed procedures for investigating,
remedying and abating violations of the City Interim Zoning Code ("Zoning Code"), and other
codes and regulations adopted by the City to regulate or protect the use of land or water; and/or
the conditions of any permit, notice and order or stop work order issued pursuant to such
regulations.
2. Section 10.30.170 of the SVMC makes all violations of Title 10 of the SVMC, including
Zoning Code violations, a public nuisance.
3. Section 10.30.200 of the SVMC sets forth guidelines for the initial investigation of a
complaint by the City Community Development Department ("Department"); including field
verification of the complaint, and advising the alleged code violator of the complaint by formal
or informal means.
HE Findings, Conclusions and Decision APP-02-06 Page 11
4. Section 10.30.210 of the SVMC requires the Department to determine whether a violation
has occurred, based on field observations, witness statements, relevant documents and other
sources. Once the Department has reasonable cause to determine that a violation has occurred,
the Department is required to document the violation and promptly notify the person responsible
for the code violation.
5. Section 10.30.210 of the SVMC requires the Department to issue a verbal or written
warning to the code violator after determining that a violation has occurred, unless a voluntary
compliance agreement has been entered into between the City and the violator within 15 days of
notification by the Department.
6. Section 10.30.210 recommends that a notice and order, or stop work order, be issued to the
violator if a voluntary compliance agreement is not timely entered into, or the violation is not
remedied.
7. Section 10.30.250 of the SVMC requires the City, after issuing a warning, voluntary
compliance agreement, notice and order, or stop work order to a person responsible for a
violation, and after the person has come into compliance, to issue a written"determination of
compliance".
8. Section 10.30.250 of the SVMC requires the City to mail a copy of the "determination of
compliance" to each person originally named in the warning, voluntary compliance agreement,
notice of violation, etc., as well as the complainant; by certified mail, 5-day return receipt
requested.
9. Section 10.30.150(F) of the SVMC defines a "determination of compliance" as a
"...written statement from the director that evidence exists to determine that the violation(s) has
been sufficiently abated as to the violation(s) stated in the voluntary compliance agreement,
notice and order or stop work order."
10. Section 10.30.210.G of the SVMC provides that any complainant may appeal a
"determination of compliance" issued by the City under Section 10.30.250 of the SVMC.
11. Section 10.30.560.B of the SVMC states that a complainant "who requests to be kept
advised" of enforcement efforts by the City may appeal a"determination of compliance".
Section 10.30.560.0 of the SVMC provides, in pertinent part,that a person who does not meet
the requirements of Section 10.30.560.B does not have standing to appeal.
12. Section 10.30.560.D requires the complainant who appeals a determination of
noncompliance by the City to file the appeal within 20 days of service of the determination of
compliance on the complainant.
13. Section 10.30.560.E of the SVMC requires the administrative appeal to be considered by
the City Hearing Examiner pursuant to Chapter 10.35 of the SVMC, unless in conflict with the
procedures set forth in Sections 10.30.570, 10.30.580 and 10.30.590.
HE Findings, Conclusions and Decision APP-02-06 Page 12
14. Section 10.30.570 of the SVMC requires the City, upon the receipt of a notice of appeal, to
provide a hearing notice for the hearing on the issues identified on the notice and order of stop
work order; and requires the notice to be made to the person responsible for the violation by
certified mail, 5-day return receipt requested.
15. Section 10.30.590 of the SVMC requires the Hearing Examiner to issue a written order
containing findings and conclusions; and to affirm, modify or reverse the notice and order, or
stop work order previously issued. Such section provides that the Examiner's decision is final
unless timely appealed to Spokane County Superior Court, as provided by law.
16. Sections 7.05.010 through 7.05.060 of the SVMC address public nuisances. Section
7.05.040 lists prohibited public nuisances. This includes, in pertinent part, the improper storage
of building or construction materials, attractive nuisances, the generation of noise onto
neighboring property in excess of the maximum permissible noise levels set forth in WAC
173.60.040, and dust generated by the disturbance of topsoil.
17. Chapter 7.05 of the SVMC, as amended by City Ordinance No. 06-004, sets forth
procedures similar to Chapter 10.30 of the SVMC for investigating and determining nuisances,
and notifying and warning the person responsible for the nuisance; and requires the City
Department of Community Development to use the enforcement procedures set forth in Chapter
10.30 of the SVMC if the violation is not corrected.
18. Section 7.05.060.H of the SVMC provides that a complainant may appeal a determination
of nuisance ordinance compliance issued by the Department Director, pursuant to the appeal
authority set forth in 10.35.560 of the SVMC.
19. Section 10.35.070 of the Spokane Valley Municipal Code (SVMC), in pertinent part,
authorizes the Hearing Examiner to hear and decide appeals from decisions of the City
Department of Community Development in the administration and enforcement of the Zoning
Code, City development regulations or other land use code or regulation; where an appeal to the
Hearing Examiner is specifically authorized.
20. There is no evidence in the record that the Department ever issued a warning, voluntary
compliance agreement, notice and order, or stop work order to RPC regarding the complaints
filed by Lonnie Eilmes or other neighboring property owners; which action by the Department
was a condition precedent to the Department issuing a"determination of compliance" to RPC
under Section 10.30.250 of the SVMC.
21. The letter dated December 5, 2006 from Cary Driskell, Deputy City Attorney to Donna
Beatty, the attached December 1, 2006 memorandum from City Compliance Officer Bill Schultz,
and the attached December 5, 2006 letter from Greg McCormick of the City Community
Development Department; do not constitute issuance of a"determination of compliance" by the
Department under Section 10.30.250 of the SVMC which could be appealed to the Hearing
Examiner.
HE Findings, Conclusions and Decision APP-02-06 Page 13
22. The Department did not issue a "determination of compliance" to RPC, under Section
10.30.250 of the SVMC, which could be appealed by Lonnie Eilmes to the Hearing Examiner
under the authority set forth in Sections 10.30.210.G, 10.30.560.B or 7.05.060.H of the SVMC.
23. Section 10.35.170 of the SVMC adopted Spokane County's "Application Review
Procedures for Project Permits" ("Application Review Procedures") by reference; construes
references to "Spokane County" therein as "City of Spokane Valley", and construes references to
County staff therein as the City Manager "or designee".
24. Section 13.100.110 of the Application Review Procedures provides that to the extent there
is a conflict between such procedures and other ordinances and resolutions of the City
regulations regulating project permits, such procedures are controlling.
25. The Application Review Procedures exclude "lot line/boundary adjustments" and
"administrative interpretations/determinations" from the project permit review process required
for land use applications classified as a "Type I application" or a"Type II applications" under
such procedures. See Section 13.100.104 and Appendix I of Application Review Procedures.
26. The Application Review Procedures classify the application for a temporary use permit
under Chapter 14.510 of the City Interim Zoning Code("Zoning Code") as a"Type 1
application" that is subject to the project permit review process. See Section 13.200.200 and
Appendix I of Application Review Procedures.
27. The procedures for a Type I application include issuance of a Determination of
Completeness, providing a Notice of Application by a posting on the site and mailing to
adjoining property owners, providing a 14-day comment period on the application, and issuance
of a written decision by the pertinent City review authority; but do not require a public hearing.
See Chapters 13.400 and 13.500 of Application Review Procedures.
28. Section 13.800.102 of the Application Review Procedures requires that notice of the
decision on a Type I application be provided to the applicant, and to any person who, prior to the
rendering of the decision, requested notice of the decision or submitted substantive written
comments on the application.
29. Section 13.900.105 of the Application Review Procedures provides that an appeal of an
administrative decision made pursuant to the Zoning Code or City Interim Subdivision
Ordinance ("Subdivision Ordinance"), not classified as a"Type I" or"Type II" project
permit/application, will be processed pursuant to the notice of hearing and appeal provisions for
Type I project permit applications.
30. Chapter 13.900 of the Application Review Procedures sets forth appeal provisions for Type
I project permit applications, which also apply to authorized appeals of administrative decisions
issued by the City Department of Community Development. This does not include appeals
authorized under Sections 10.30.560.B or 7.05.060.H of the SVMC, as referenced above.
HE Findings, Conclusions and Decision APP-02-06 Page 14
,
g
31. Chapters 14.502 through 14.514 of the City Interim Zoning Code ("Zoning Code")
g establish procedures for certain administrative actions that may be issued by the City Community
Development Department ("Department") under such chapter. This includes temporary use
permits, certain administrative determinations, administrative exceptions and nonconforming
status determinations.
1
32. Section 14.502.000 of the Zoning Code states that the Department may render
administrative actions directly, without a public hearing, but with an appeal process available to
aggrieved parties.
1 33. Section 14.512.000 of the Zoning Code provides that the Department's decision on an
application for an administration action should be made within 30 days of a completed
i application, the decision may include provisions to mitigate project impacts, and the decision is
subject to appeal under the procedures outlined in Section 14.412.041 of the Zoning Code.
34. Section 14.514.000 of the Zoning Code requires that notification of the Department's
action on certain types of administrative actions, including a temporary use permit decision
issued under Chapter 14.510 of the Zoning Code, be provided by the Department by first class
mail to adjacent property owners and/or taxpayers; with an explanation of the action taken and
any aggrieved party's appeal process.
35. Section 14.412.041 of the Zoning Code provides that any person aggrieved by an
administrative determination of the Zoning Code by the Department may make a written request
Ifor a public hearing before the Hearing Body to contest such decision. Section 14.412.042 of the
City Zoning Code authorizes an appeal of the Hearing Body's decision to the City legislative
I body.
36. Sections 14.412.041 and 14.412.042 of the Zoning Code are superseded by the appeal
procedures adopted in Chapter 10.35 of the City Municipal Code, and the Application Review
Procedures, as set forth above.
37. The Department failed to comply with the City's Application Review Procedures regarding
the temporary use permit (TUP) application submitted by RPC for the west portion of the site on
May 12, 2004. This included failing to require the applicant to post the property with a Notice of
Application; failing to mail the Notice of Application to adjacent property owners (including
Lonnie Eilmes); failing to provide a 14-day public comment period on the application; and
failing to mail notice of the June 10, 2004 decision on the TUP to Lonnie Eilmes, who on May
20, 2004 submitted substantive written comments on RPC's proposed use of the west portion of
the site.
38. The Department's failure to comply with the City's Application Review Procedures
regarding the TUP is not material to the current appeal, because the TUP expired on December
11, 2004 and was not renewable. See Section 14.510.000(a) of Zoning Code.
39. Section 12.100.110 of the City Interim Subdivision Ordinance ("Subdivision Ordinance")
states that the provisions of such ordinance do not apply to a division of land made for the
HE Findings, Conclusions and Decision APP-02-06 Page 15
purpose of alteration by adjusting boundary lines, which does not create any additional lot, or a
division of land that fails to meet minimum requirements for width and area for a building site;
i.e. a"boundary line adjustment".
40. Section 12.100.112 of the Subdivision Ordinance requires any person seeking to divide
property through a boundary line adjustment, which division is exempt from the provisions of
the Subdivision Ordinance, to submit an application for a certificate of exemption and obtain
approval of such application from the City Community Development Department. As indicated
above, such applications are exempt from the City Application Review Procedures for Project
Permits.
41. The Subdivision Ordinance does not authorize the appeal of a certificate of exemption
decision issued by the Department for a boundary line adjustment to the Hearing Examiner.
Such appeals must be taken to superior court through the filing of a land use petition under
Chapter 36.70C RCW. See Chelan County v. Nykriem, 146 Wn.2d 904 (2002).
42. The current appeal is not authorized by the Spokane Valley Municipal Code, and the
Hearing Examiner lacks jurisdiction to consider the appeal.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the appeal is hereby
denied.
DATED this 10th day of July, 2007
SPOKANE COUNTY HEARING EXAMINER
ity(-7
1 -n ,
Michael C. Dempsey, WSBA#8235/i
HE Findings, Conclusions and Decision APP-02-06 Page 16
gg
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 10.35 of the Spokane Valley Municipal Code, the decision of the
Hearing Examiner on the appeal of an administrative determination is final and conclusive
unless within twenty-one (21) calendar days from the 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 Certified Mail to the Applicant and by first class mail to other
parties of record on July 10, 2007. The date of issuance of the Hearing Examiner's decision is
therefore July 13, 2007. THE LAST DAY FOR APPEAL OF THIS DECISION TO
SUPERIOR COURT BY LAND USE PETITION IS AUGUST 3,2007.
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, Division of
Current Planning, 11707 E. Sprague Avenue, Spokane Valley, WA. Copies of the documents in
the record will be made available at the cost set by City of Spokane Valley Ordinance.
Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation
for property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision APP-02-06 Page 17