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REZ-14-05 SUB-10-05 PUD-04-05 CITY OF SPOKANE VALLEY HEARING EXAMINER RE: Zone Reclassification from the UR-3.5 Zone ) to the UR-7* Zone, Preliminary Plat of South) FINDINGS OF FACT, Terrace Spokane, and PUD Overlay Zone; ) CONCLUSIONS OF LAW, Applicant: South Terrace Spokane LLC ) AND DECISION File No. REZ-14-05/SUB-10-05/PUD-04-05 ) I. SUMMARY OF DECISION Hearing Matter: Consolidated application for a rezone, preliminary plat and PUD Overlay zone. Summary of Decision: Approve rezone to UR-7* zone, preliminary plat and PUD Overlay zone; under the City Interim Zoning Code and other development regulations in place on July 8, 2005; subject to conditions of approval. The preliminary plat/PUD will expire on February 21, 2013. The underlying zoning of the site will remain in the Single-Family Residential (R-3) district of the City Uniform Development Code. H. FINDINGS OF FACT Procedural Background 1 1. The consolidated application requests approval of a zone reclassification from the Urban Residential-3.5 (UR-3.5) zone to the Urban Residential-7* (UR-7*) zone, under the expired City • Interim Zoning Code, for approximately 8.5 acres of a 16.8-acre site; the preliminary plat of South Terrace Spokane, to divide the site into 80 lots for single-family dwellings, under the UR- 7* zone and expired City Interim Subdivision Ordinance; and a Planned Unit Development (PUD) Overlay zone, under the UR-7* zone and former Section 4.08.19 of the City Uniform Development Code (UDC). 2. The site is located along the west side of Carnahan Road, approximately 130 feet north of 14th Avenue, and directly south of the southerly terminus of Willamette Street; in Spokane Valley, Washington. 3. The site is currently referenced as County Assessor's tax parcel nos. 35233.0101, 35233.0203, 35233.0204, 35233.1307, 35233.1402 and 35233.9189. t 4. The north portion of the site, consisting of parcel no. 35233.9189, is un-platted. The south portion of the site consists of Blocks 1 and 2, and the North 1/2 of Blocks 13 and 14, of Woodland Terrace Addition; which plat was recorded in 1907. The south portion is platted with various unimproved City right of ways. 5. The applicant, and the site owner, is South Terrace Spokane LLC, c/o Brian Main, 12810 E. Nora, Spokane Valley, WA 99216. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 1 1 6. On April 29, 2005, the applicant commenced the application process for the consolidated application. 7. On July 8, 2005, the consolidated application met the submission requirements for a complete application, under the City's development regulations. On July 12, 2005, the City Community Development Department-Planning Division("City Planning Division) issued a determination of completeness for the consolidated application. 8. On May 10, 2006, the City implemented a new Comprehensive Plan, which replaced the City Interim Comprehensive Plan. On May 11, 2006, the City Phase I Development Regulations were revised to implement the Comprehensive Plan. See City Ordinance Nos. 06-010 and 06- 011. 9. On April 20, 2007, the City Planning Division issued a Determination of Significance (DS) for the consolidated application, under the City Environmental Ordinance, based primarily on floodplain issues. At the time, the application included a preliminary plat map submitted on July 8, 2005, and a preliminary PUD site development plan("PUD site plan") submitted on February 27, 2006. 10. On May 2, 2007, the applicant appealed the DS to the Hearing Examiner. On June 21, 2007, the Examiner held a public hearing on the appeal. On September 19, 2007, the Hearing Examiner granted the appeal; and directed the City Planning Division to withdraw the DS, and issue a new threshold determination for the application. On September 20, 2007, the Examiner i corrected certain clerical errors in the appeal decision. See decision in File No. APP-02-07. 11. On September 27, 2007, the a pp licant submitted a revised preliminary p lat map, which is the I preliminary plat map of record; and also submitted maps illustrating the location of slopes equal to or greater than 30%, and erodible soils, on the site. 12. On October 12, 2007, the applicant submitted a revised PUD site plan, which is the PUD site plan of record. On November 27, 2007, the applicant submitted a new topographical survey of the site, at 1-foot contours; based on field work completed on November 16, 2007. See letter dated 11-11-07 from Storhaug Engineering to Brian Main. 13. On October 19, 2007, the City Planning Division withdrew the DS, and issued a Mitigated Determination of Nonsignificance (MDNS) for the consolidated application under the City Environmental Ordinance. 14. On October 28, 2007, the City expanded and re-codified the UDC, as part of Titles 17-24 of the Spokane Valley Municipal Code (SVMC). The revised UDC ("UDC") replaced the City Interim Zoning Code, PUD Overlay zone, Floodplain Ordinance, Interim Subdivision Ordinance, City Phase I Development Regulations, and other City development regulations in place at the time. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 2 1 15. On October 28, 2007, the City adopted new zoning maps throughout the city to implement P the UDC. Such action reclassified the northerly 8.3 acres of the site from the UR-7* zone to the Single-Family Residential Urban(R-4) district, and reclassified the southerly 8.5 acres of the site from the UR-3.5 zone to the Single-Family Residential (R-3) district. 16. On November 13-21, 2007, notice of a public hearing on the consolidated application was provided by posting, publication and mail; as required by the hearing procedures in the UDC. 17. The notice of public hearing described the rezone portion of the consolidated application as a proposed rezone from the UR-3.5 zone to the UR-7* zone; and referenced the applicability of the City Interim Zoning Code, Interim Subdivision Ordinance, Phase I Development Regulations, etc. to the consolidated application. 18. On November 29, 2007, the City Planning Division submitted a staff report for the consolidated application. The Staff Report characterized the proposed rezone as a zone reclassification from the UR-3.5 and UR-7* zones of the City Interim Zoning Code to the Single- Family Residential Urban(R-4) district of the UDC, under the rezone criteria set forth in the UDC. 19. The Staff Report analyzed the preliminary plat and PUD portions of the application under the Interim Comprehensive Plan, PUD Overlay zone, and other development regulations in place at the time the consolidated application became complete in July of 2005; except for reviewing the proposed preliminary plat and PUD under the development standards of the R-4 district of the UDC. 20. On December 6, 2007, the Hearing Examiner conducted a public hearing on the consolidated application. The Examiner conducted site visits on June 20, 2007 and September 10, 2007. 21. The following persons testified at the public hearing: Karen Kendall and Greg McCormick Mike Connelly Spokane Valley Community Development Dept. Spokane Valley City Attorney 11707 E. Sprague Avenue, Suite 106 11707 E. Sprague Avenue, Suite 106 Spokane Valley, WA 99206 Spokane Valley, WA 99206 Brian McGinn, Attorney at Law John Konen 601 W. Riverside, Suite1900 510 E. Third Avenue Spokane, WA 99201 Spokane, WA 99202 Jerry Storhaug, P.E. Brian Main 510 E. Third Avenue 417 W. First, C-1 Spokane, WA 99202 Spokane, WA 99201 HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 3 1 22. At the public hearing, the applicant contended that the requested rezone should be reviewed as a proposed rezone of the south portion of the site from the UR-3.5 zone to the tJR-7* zone, under the City Interim Zoning Code; and that the requested preliminary plat and PUD Overlay zone should be reviewed under the UR-7* zone of the City Interim Zoning Code. See testimony of Brian McGinn. 23. At the public hearing, the City Planning Division advised that the preliminary plat and PUD Overlay zone portions of the consolidated application were vested under the development regulations in place at the time the application became complete; but contended that the proposed rezone to the UR-7* zone was nullified by adoption of the UDC. See testimony of Mike Connelly. 24. The City Planning Division further advised that in order to protect the applicant's vested rights for the preliminary plat and PUD Overlay zone, the rezone portion of the consolidated application should be reviewed as a proposed rezone of the south portion of the site to the R-4 district under the UDC. See testimony of Mike Connelly. 25. The Hearing Examiner left the record open after the public hearing to allow the applicant's consulting engineer to respond in writing to a question raised by the Examiner regarding the floodplain analysis for the application, and to allow City Engineering to respond to the applicant's response. This process was completed on January 2, 2008. 26. On February 11, 2008, the Examiner contacted the applicant's traffic engineer, Ann Winkler of Sunburst Engineering, to ask whether the City of Spokane desired off-site traffic mitigation for the project at the intersection of Eighth Avenue and Havana Street; as previously recommended by Winkler. Ann Winkler responded with an email dated February 11, 2008, to which was attached a letter from Bob Turner of the City of Spokane Street Department dated March 9, 2006. The letter from Turner advised that the City of Spokane did not desire traffic mitigation at the intersection. 27. For the reasons cited in the conclusions of law section of this decision, the findings of fact below are based on review of the consolidated application, including the proposed rezone, under the City Interim Comprehensive Plan, Interim Zoning Code, PUD Overlay zone, Interim Subdivision Ordinance, Floodplain Ordinance and other development regulations in place at the time the application became complete on July 8, 2005. Items in Record 28. The Hearing Examiner heard the proposal pursuant to the notice and hearing procedures set forth in Chapter 18.20 of the UDC, and the City Hearing Examiner Rules of Procedure. 29. The Hearing Examiner takes notice of the City Interim Comprehensive Plan, Interim Zoning Code, Phase I Development Regulations, City Ordinance No. 04-046 (adopting former PUD Overlay zone), City Ordinance No. 4-004 (adopting former Floodplain Ordinance, and codified under former chapter 10.20 of UDC), Interim Subdivision Ordinance, Interim Critical Areas HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 4 Ordinance, Standards for Road and Sewer Construction, and other development regulations in place on July 8, 2005. The Examiner also takes notice of the Spokane Valley Comprehensive Plan, UDC, Spokane Valley Municipal Code (SVMC), and prior land use decisions in the vicinity. ) 30. The record includes the documents in File Nos. REZ-14-05/SUB-10-05/PUD-04-05 and APP-02-07 at the time of the public hearing held on.December 6, 2007; the documents and testimony submitted at the public hearing; the documents added to the record by the parties between the public hearing and January 2, 2008; the email dated February 11, 2008 from Sunburst Engineering, and attached letter dated March 9, 2006 from the City of Spokane Street Department; and the items taken notice of by the Hearing Examiner. The record also includes the testimony submitted at the appeal hearing held on June 21, 2007 in File No. APP-02-07. Description of Site 31. The site is 16.78 acres in size and undeveloped. A manmade pond of approximately .75 pP Y acres is located in the southeast portion of the site; approximately 60 feet west of Carnahan Road and the east boundary of such portion of the site, and 50 feet south of the north boundary of such portion of the site. 32. Most of the west portion of the site consists of a moderate to steep east-facing slope, while most of the east portion of the site consists of a relatively level to gently-sloping alluvial terrace. Scattered pine trees, and other native vegetation are found along the east-facing slope, and along the north and east borders of the north portion of the site. 33. The westerly 200-400 feet of the site comprise the highest area on the property, with slopes in excess of 50%. Approximately 1.14 acres of the site have slopes in excess of 40%. Scattered granite outcrops are found throughout the site, except in the southeast portion. See geo-hazard evaluation report, 2006 aerial map, completed PUD Overlay zone checklist and worksheet form, and topographical survey submitted on 11-27-07. 34. On May 4, 2005, the City Community Development Department issued grading and flood lain permits for construction of a stormwater p ormwater s stem and future roadways through the site, � including 30,000 cubic yards of grading. 35. An underground stormwater piping system was subsequently extended through the site, generally from south to north; and northwesterly to a drainage retention pond constructed on land lying directly northwest of the site. Grading, excavation, filling and vegetation removal occurred on the site and adjacent land to the south; in conjunction with the project. The piping system serves new housing developed south of the site, and is also intended to serve the lots in the current project. 36. The areas of vegetation illustrated on the preliminary plat map appear to represent the vegetation present on the site prior to the installation of the underground piping system in 2005, and not the reduced amount of vegetation disclosed on the 2006 aerial map of the site. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 5 37. Some dirt stock piles and asphalt debris piles are currently located in the southeast corner of the site, and some boulder and gravel piles are located in the middle of the south portion of the site. Unpaved maintenance driveways extend westerly into the site from Carnahan Road, and northerly into the site from Chronicle Road; respectively. See topographical survey map submitted on 11-27-07, and 2006 aerial map. Critical Areas designated or located on Site 38. The site contains 10 different areas with a"slope of 30% or greater", which topographical feature represents a geo-hazard under the City Interim Critical Areas Ordinance (CAO). See PUD site plan, and map of slopes equal to or exceeding 30% submitted on 9-27-07. 39. The critical areas maps adopted when the City was incorporated on March 31, 2003 ("City CAO maps") illustrate an"erodible soils" geo-hazard extending from north to south in a wide band through the middle of the site. The geo-hazard is shown on the erodible soils map submitted on December 6, 2005, but not on the preliminary plat map of record submitted on September 27, 2007. Also see vicinity map showing erodible soils. 40. The City CAO maps do not illustrate any wetlands on the site. The pond on the site is not considered a natural wetland subject to regulation under the CAO. 41. The City CAO maps, as well as the current priority wildlife habitat and species maps maintained by the Washington State Department of Fish and Wildlife (WDFW), do not illustrate any priority wildlife habitat on the site. 42. The City CAO maps illustrate a DNR Type 5 stream extending northeasterly from the south border of the site,just west of Chronicle Street; and terminating a short distance northwest of the pond on the site. See CAO maps adopted by City Ordinance No. 50. 43. In 2006, the Washington State Department of Natural Resources (DNR) revised its "hydrolayer"maps to illustrate a DNR Type "F" stream meandering northerly through the site, exiting the northeast corner of the site, and continuing offsite to the north. Floodplain designated on Site �h 44. The Federal Emergency Management Agency(FEMA) flood insurance rate map ("FIRM") for the area, adopted by reference in the former City Floodplain Ordinance, illustrates a 100-year floodplain, in the form of an"un-numbered A zone" published in 1992, extending northerly through the site and neighboring land located to the north and south. See former Section 10.20.350.B of UDC. The 100-year floodplain is shown on the preliminary plat map. Description of Preliminary Plat/PUD Overlay Zone 45. The preliminary plat map illustrates division of the site into 80 lots for single-family dwellings, with lots ranging from 3,519 square feet to 9,739 square feet in size; and 2.53 acres of HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 6 common open space divided into four (4) tracts. The average lot size in the preliminary plat is approximately 6,500 square feet. The map shows development of the preliminary plat in three (3) phases. 46. The preliminary plat map illustrates a proposed public road (13th Avenue) extending westerly into the middle of the site from Carnahan Road, and then curving northwesterly to the northwest portion of the site where it terminates in a cul-de-sac. 47. The preliminary plat map also illustrates a proposed public road(Willamette Street) extending northerly from proposed 13`x'Avenue, and curving northwesterly through the site until reaching the south terminus of Willamette Street lying directly north of the site. The street system in the preliminary plat does not connect to Chronicle Road located to the south, or 13th Avenue located to the west. 48. The preliminary plat illustrates a private driveway in the northwest corner of the site, and a private driveway in the southwest corner of the site; each serving three (3) lots. The PUD site plan illustrates seven (7) traffic calming islands in the proposed public roads, a detail for the traffic islands, and a traffic circle planned in the Willamette Street cul-de-sac located offsite to the north. 49. The preliminary plat map and PUD site plan indicate that each lot has a minimum lot frontage of 30 feet and a minimum lot depth of 50 feet; and that the lots as developed will have a maximum lot coverage of 60%, a maximum building height of 35 feet, a minimum front yard for each dwelling of 15 feet, a minimum front yard for each garage of 20 feet, a minimum rear yard of 15 feet, a minimum side yard of 5 feet, and a minimum flanking street yard of 15 feet. 50. The PUD site plan illustrates the building footprint and location of the housing units proposed on each lot. The building footprints appear to range from 900-1,200 square feet in size. The environmental checklist advises that most of the areas identified for future development in the preliminary plat are situated on existing slopes that range from 3-15%. 51. The PUD site plan and the preliminary plat map advise that common open space tracts "A" and `B"will be reserved for passive recreation; and common open space tracts "C" and"D"will be reserved for drainage facilities. Tract "D" consists of.9-acres, and includes the existing pond on the site. The tracts are accessible from the internal public roads in the project. Land Use Designations for Site and Area, Surrounding Conditions 52. In 1991, Spokane County reclassified the zoning of the south portion of the site, the land lying west and south of the south portion of the site, and the land lying north of the site to the Urban Residential-3.5 (UR-3.5) zone of the County Zoning Code; pursuant to the Program to Implement the Spokane County Zoning Code. 53. In the same zoning action, the County reclassified the zoning of the north portion of the site, and the land lying east and west of the north portion of the site, to the Mining (MZ) zone; and HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 7 g reclassified the zoning of the land lying directly southeast of the intersection of Carnahan Road and 12t''Avenue, southeast of the site, to the Urban Residential-22 (UR-22) zone. 54. In 1995, the County Hearing Examiner approved a rezone of the land lying between the north portion of the site and Carnahan Road to the east from the MZ zone to the UR-3.5 zone. See decision in ZE-15-95. 55. In 2002, the County designated the site and area in the County Urban Growth Area(UGA), adopted a new comprehensive plan and new comprehensive plan designations for the land in the unincorporated area, and adopted the County Phase I Development Regulations to implement the new comprehensive plan. 56. The County Phase I Development Regulations reclassified the zoning of the north portion of the site, and neighboring land zoned MZ, to the Urban Residential-7 (UR-7 ) zone; retained the UR-3.5 zoning of the south portion of the site; and retained the existing zoning of other neighboring land. 57. On March 31, 2003, the City of Spokane Valley was incorporated. Upon incorporation, the City of Spokane Valley adopted the County's comprehensive plan, development regulations and zoning maps by reference; with certain revisions. Such actions retained the zoning of the site and neighboring land under the City Interim Zoning Code. 58. In 2004, the City adopted a revised Floodplain Ordinance, a revised PUD Overlay zone, and revisions to the development standards of the UR-3.5, UR-7* and other residential zones of the City Interim Zoning Code. See City Ordinance Nos. 04-004, 04-046, 04-033 and 04-046. The Floodplain Ordinance was codified in chapter 10.20 of the City Uniform Development Code (UDC), the PUD Overlay zone was codified in Section 4.08.19.16 of the UDC, and the revised development standards for residential zones were codified in Section 4.15.1 of the UDC. { 59. On October 13, 2005, the Hearing Examiner approved the rezone of 1.36 acres located directly southeast of the intersection of Ninth Avenue and Chronicle Road, directly northeast of the site, from the UR-3.5 zone to the UR-7* zone. Such land was then short platted into four(4) lots, to develop three (3) duplexes and one (1) single-family dwelling; at a density(net) of 5.6 dwelling units per acre. See decision in File No. REZ-20-05, and Short Plat No. SP-2005-27. 60. The site, and neighboring land lying west of Carnahan Road, were designated in the Low Density Residential category of the City Interim Comprehensive Plan. The land located northeast of the intersection of Carnahan and 12th Avenue, was designated in the Medium Density Residential category of the Interim Comprehensive Plan. The land located directly southeast of the intersection of Carnahan Road and 12th Avenue was designated in the High Density Residential category of the Interim Comprehensive Plan. 61. The site, and neighboring land lying west of Carnahan Road in the vicinity, were designated in the Low Density Residential category of the City Comprehensive Plan, effective May 10, 2006. Further to the northwest, the site of a former middle school, now used as an instructional support HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 8 center for the local school district, is designated in the Public/Quasi-Public category of the Comprehensive Plan. 62. The land located northeast of the intersection of Carnahan and 12th Avenue is currently designated in the Medium Density Residential category of the Comprehensive Plan, while the land located directly southeast of the intersection of Carnahan Road and 12'1'Avenue is designated in the High Density Residential category of the Comprehensive Plan. 63. Effective October 28, 2007, the zoning of the north portion of the site, the land lying west of the north portion of the site, and the land located northeast of the site that was rezoned to the UR-7* zone in File No. REZ-20-05, was reclassified to the R-4 district of the UDC. 64. Effective October 28, 2007, the zoning of the south portion of the site, and other neighboring land lying west of Carnahan Road in the vicinity, was reclassified to the R-3 district of the UDC. At the same time, the zoning of the former middle school property located to the northwest was reclassified to the Community Facilities (CF) district. i 65. Effective October 28, 2007, the land located northeast of the intersection of Carnahan and 12th Avenue was reclassified to the Multi-family Medium Density Residential (MF-1) district of the UDC, and the zoning of the land located directly southeast of the intersection of Carnahan Road and 12th Avenue was reclassified to the Multi-family High Density Residential (MF-2) district. 1 66. The land lying west of the site is used for mining and an associated asphalt plant, the land lying between the north portion of the site and Carnahan Road is vacant, the land lying northeast of the intersection of Carnahan and 12th Avenue consists of a former landfill, and the land located directly southeast of the intersection of Carnahan and 12th Avenue is wooded and vacant. 67. The other land neighboring the site generally consists of single-family homes on lots of various sizes, most of which lots are comparable to the average lot size in the current project. A few duplexes are found in the R-4 district located northeast of the site. 68. The unincorporated area of Spokane County lies south of 16t''Avenue, west of City of Carnahan Road; and south of 18th Avenue extended, east of Carnahan Road. The City of Spokane lies west of Havana Street in the area, one-half(1/2) mile west of the site. 69. The City Arterial Road Plan designates Carnahan Road and Eighth Avenue as Minor Arterials, and 13th Avenue (west of Carnahan) and 16th Avenue (east of Carnahan) as Collector Arterials. Havana Street to the west is a City of Spokane arterial. The Interstate 90 freeway lies three-fourths (3/4) mile north of the site. Comments submitted by Neighboring Property Owners 70. Neighboring property owners submitted written comments on the project between July 27, 2005 and October 2, 2005; after notice of the application was provided. Neighboring property HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 9 owners did not submit any comments after such time period, or at the public hearing held on December 6, 2007. 71. The comments submitted by the above owners, who reside along Willamette Street and in the Alcott Grove final plat located north of the site, expressed concern regarding connection of the street system in the project to Willamette Street, and increased traffic from the project along such street and neighboring streets. One owner also expressed concern regarding the displacement of marmots from the site to the Alcott Grove subdivision, where they were digging and undermining foundations. Applicable policies of Interim Comprehensive Plan 72. Policy UL.9.1 of the Interim Comprehensive Plan recommends that residential densities (net) in the Low Density Residential category range from 1-6 dwelling units per acre. 73. Policy UL.9.2 of the Comprehensive Plan recommends that the City seek to achieve an average residential density(net) in new development of at least four (4) dwelling units per acre, through a mix of densities and housing types. Policy UL.8.1 recommends that mixed-income development be provided for in residential areas. 74. Policy UL.2.12 of the Interim Comprehensive Plan recommends that the site characteristics of residential development, including existing trees, be enhanced and preserved through sensitive E site planning tools. Policy UL.2.15 encourages the planting of street trees in residential subdivisions. 75. Policy H.3.2 of the Interim Comprehensive Plan recommends that the City ensure that the design of infill development preserves the character of the neighborhood. 76. Policy UL.7.10 of the Interim Comprehensive Plan states that the phasing of land development shall be consistent with the established levels of service for the provision of public facilities and services within the UGA. Policy UL.7.12 states that new development within the UGA shall connect to public sewer. 77. Policies UL.2.20 and T.4a.12 of the Interim Comprehensive Plan encourage new residential developments to be arranged in a pattern of connecting streets and blocks, to allow people to get around easily by foot, bicycle, bus or car. Such policies also indicate that cul-de-sacs or other closed street systems may be considered appropriate where topography or other physical limitations make connecting systems impractical, and under certain other circumstances. 78. Policy T.3e.1 of the Interim Comprehensive Plan recommends that the transportation network provide safe and convenient bicycle and walking access between housing, recreation, shopping, schools, community facilities and mass transit access points; and that obstructions and conflicts with pedestrian and bicycle movement be minimized. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 10 79. Policy UL.2.11 of the Interim Comprehensive Plan promotes the linkage of developments with open space, parks, natural areas and street connections. Policy UL.2.14 recommends that separated sidewalks be required on public roads developed in new residential subdivisions 80. Policy T.3e.4 of the Interim Comprehensive Plan recommends that the City promote hard surface walkway systems, including but not limited to, concrete, asphalt and brick, as an alternative to sidewalks that are separate from roads; if they fit in with the characteristics of the neighborhood and private maintenance is assured. 81. Policy T.4a.13 and Policy UL.2.21 of the Interim Comprehensive Plan encourage the development of local access roads that are curvilinear, narrow, or use other street designs consistent with safety requirements, to discourage through traffic in neighborhoods; provided the design fits into the surrounding street systems and aids in implementing specific land use designs. 82. Policy T.4a.2 of the Interim Comprehensive Plan recommends that the capacity of existing roads be maximized to reduce the need for new or expanded roads; through the use of signalization, improved signage and other means. 83. Policy CF.12.2 of the Interim Comprehensive Plan recommends that provision be made in residential and commercial developments for road access that is adequate for residents, fire district ingress and egress, and water supply for fire protection. 84. Policy T.2.2 of the Interim Comprehensive Plan recommends that transportation improvements needed to serve new development be in place at the time new development impacts occur, or that a financial commitment, consistent with the City's Capital Facilities Plan, be made to complete the improvement within six (6) years. 85. Policy T.10.5 of the Interim Comprehensive Plan states that impact mitigation fees and user- based fees shall be considered as a source of funding for all transportation improvements required because of new development. 86. Policy P0.3.3 of the Interim Comprehensive Plan recommends that new development mitigate a portion of its direct impacts on the availability of parks, open space and recreation facilities; using methods such as the dedication of land,an d donation of labor, of equipment o ui ment q p and materials, or entering into an agreement with the County to provide for payment of a fee. 87. Policy CF.9.6 of the Interim Comprehensive Plan encourages the expansion of school facility capacity at a comparable rate with that of private residential development and demographic trends. Policy CF.9.7 recommends that the adequacy of school facilities be considered when reviewing new residential development. 88. Chapter 10 of the Interim Comprehensive Plan contains numerous policies protective of designated critical areas; including wetlands, critical aquifer recharge areas, fish and wildlife conservation areas, frequently flooded areas and geologically hazardous areas. Such policies are HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 11 implemented through the City CAO, Floodplain Ordinance, Guidelines for Stormwater Management, and Aquifer Sensitive Area(ASA) Overlay zone. 89. Policy NE.10 of the Interim Comprehensive Plan states that the cumulative effects of land use activities on critical areas should be considered in land use decisions. Policy NE.24.3 recommends that development proposals and their design consider the retention and maintenance of critical fish and wildlife habitat areas, and provide buffers to protect corridors and water habitats. 90. Policy NE.32.2 of the Interim Comprehensive Plan recommends that residential development in geo-hazard areas minimize the disruption of existing topography and vegetation; and incorporate opportunities for phase clearing and grading. Policy NE.32.3 recommends that construction in such areas minimize the risk to the natural environment or structures, and not increase the risk to the site or adjacent properties that may be potentially affected. 91. Policy NE.32.5 of the Interim Comprehensive Plan recommends that site alteration, grading and filling in geo-hazard areas be the minimum necessary to accomplish approved designs and plans. Policy NE.32.8 recommends that development not be allowed in such areas without appropriate mitigation. 92. Policy NE.32.7 5 of the Interim Comprehensive Plan states that construction and development in geo-hazard areas should have negligible effects on the quality and quantify of affected surface and groundwater; and that mitigation measures acceptable to the appropriate regulatory agency should be provided. 93. Policy NE.32.10 of the Interim Comprehensive Plan recommends that land use regulations consider density transfers, bonus density, nature belt preservation and other innovative techniques to retain geo-hazard areas whenever possible; and to facilitate implementation of the goals and policies for such areas. 94. The Open Space Corridors map in the Interim Comprehensive Plan, found immediately after page P0-10, designates lands useful for recreation, wildlife habitat, trails and connection of critical areas. The map shows a narrow open space corridor extending northwesterly through the site, from the middle of the south boundary to the northwest corner. 95. Policy P0.5.8 of the Interim Comprehensive Plan recommends that open space areas and corridors be identified and designated throughout the City. Policy P0.5.18 recommends that open space designations be implemented through zoning and other development regulations. 96. Policy P0.6.2 of the Comprehensive Plan recommends that development proposals be reviewed to evaluate opportunities for multiple use of proposed open space. Policy P0.5.19 promotes the inclusion of functional open space within residential PUD developments. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 12 97. Policy NE.22.2 of the Interim Comprehensive Plan states that special studies and/or conditions of approval for development proposals may be required, if necessary, to mitigate storm water runoff and other pollution sources in problem drainage areas. 98. The Comprehensive Plan, at pages CR-1 and CR-2, defines "cultural resources" as those buildings, structures, sites or associations that are left behind by a group of people and are generally over 50 years old. This includes historic structures and landscapes engineered and built by man; properties held in spiritual or ceremonial honor by a cultural group or tribe; properties that retain a historical association with an event or period, even though they no longer show evidence of man-made structures; and archaeological sites, battlefields, rock carvings, pictographs, trails, village sites, fishing sites, trading sites, and religious and ceremonial sites. 99. Policy CR.1.1 of the Interim Comprehensive Plan recommends that cultural resources, such as archaeological and historic sites, be identified and evaluated to determine which should be preserved. Policy CR.1.5 recommends that the review of land use actions be sensitive and give consideration to the protection of cultural resources. Compliance with Interim Zoning Standards 100. The City Phase I Development Regulations, prior to being amended in May of 2006, required all zone reclassifications to be consistent with the implementing zones specified in such regulations, for the land use designation that applies to the respective property under the Interim. Comprehensive Plan. 101. The implementing zones for the Low Density Residential category of the City Interim Comprehensive Plan, under the City Phase I Development Regulations, were the Urban Estates (UR-1), UR-3.5 and UR-7* zones. 102. The UR-3.5 zone was intended to promote areas of primarily single-family residences in an urbanized neighborhood setting. Such zone permitted single-family homes, duplexes and various other uses; and a maximum residential density of 4.35 dwelling units per acre, outside of a PUD Overlay zone. 103. The UR-7 zone was intended to add to the variety of housing types and densities in urban areas, and to provide standards for the orderly development of residential property in a manner that provides a desirable living environment that is compatible with surrounding land uses and assures the protection of property values. The UR-7 zone permitted single-family dwellings, duplexes, multi-family dwellings, and certain other uses. 104. The City Phase I Development Regulations limited new residential development in the Low Density Residential category of the Interim Comprehensive Plan, on land rezoned to the UR-7 under such regulations, to a net density of six(6) dwelling units per acre. Such zoning, which applied to the north portion of the site, is referred to as the "UR-7*" zone. The UR-7 zone otherwise permitted a density(net) of seven(7) dwelling units per acre. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 13 105. The minimum lot area and minimum lot frontage required for a single-family dwelling, at the time the consolidated application became complete on July 8, 2005, were respectively 10,000 square feet and 80 feet in the UR-3.5 zone, and 6,000 square feet in the UR-7 zone; outside of a PUD Overlay zone 106. The minimum building setbacks in both the UR-3.5 zone and the UR-7 zone were a 15-foot front yard setback for a dwelling, a 20-foot front yard setback for a garage, a 15-foot rear yard setback, a 5-foot side yard setback, and a 15-foot flanking street yard setback. 107. The maximum lot coverage in the UR-3.5 zone was 50%, and was 55% in the UR-7 zone; outside of a PUD Overlay zone. The maximum building height in each zone was 35 feet. 108. The PUD Overlay zone adopted by the City on November 9, 2004, and codified as former Section 4.08.19 of the UDC (hereafter referred to as the "PUD Overlay zone"), was in effect when the consolidated application became complete on.July 8, 2005. See City Ordinance No, 04- 046, including Attachment "A". Such zone was later revised and replaced under the UDC on October 28, 2007. 109. The PUD Overlay zone does not authorize any deviation in the minimum building setbacks required by the underlying zone for a residential PUD, except for a reduced flanking street yard of 10 feet. The minimum setbacks specified on the preliminary plat map and PUD site plan are the same as the minimum building setbacks required in the UR-7* zone, outside a PUD Overlay zone. 110. The PUD Overlay zone authorizes a minimum lot area of 1,600 square feet, minimum lot frontage of 30 feet, minimum lot depth of 50 feet, and minimum lot coverage of 60%. The preliminary plat/PUD complies with such requirements 111. The PUD checklist and worksheet completed by the applicant, and the Staff Report, calculated a bonus density of.06 dwelling units per acre for the preliminary plat under the density formula set forth in Section 4.08.19.09 of the PUD Overlay zone. This would allow a density of 6.06 dwelling units per acre, and a total of 82 dwelling units, in the preliminary plat. 112. If bonus density was not awarded, up to 81 lots could still be developed in the preliminary plat under the density formula of the PUD Overlay zone. Since the project has only 80 lots, a bonus density award is unnecessary. 113. The Phase I Development Regulations limited the density(net) of new development in the UR-7* zone to six (6) dwelling units per acre, based on the definition of"density" in Section 14.300.100 of the Interim Zoning Code. This placed an upper limit on the density allowed in the UR-7* zone under the PUD Overlay zone. 114. The density(net) of the preliminary plat in the UR-7* zone, under the definition of"density" in Section 14.300.100 of the Interim Zoning Code, is only 5.6 dwelling units per acre. Accordingly, the Phase I Development Regulations would not affect the bonus density award for the preliminary plat under the PUD Overlay zone, even if needed. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 14 fi 115. The PUD Overlay zone required that a PUD site plan tabulate the densities within each phase of a preliminary plat, and contain a proposed phasing schedule. Such zone requires that each phase of the preliminary plat contain the required common open space, required parking and infrastructure necessary to sustain the phase as an independent subdivision and PUD Overlay zone; in the event the remainder of the preliminary plat is not finalized. 116. The preliminary plat map illustrates division of the preliminary plat in three (3) phases; but neither the preliminary plat map nor the PUD site plan tabulate the density of each phase, or a phasing schedule. The conditions of approval recommended by the City Planning Division require such deficiencies to be rectified in the final PUD site plan. 117. The PUD Overlay zone required a minimum of 10% of the total area of the PUD to be designated and maintained as common open space; and prohibited required landscaped areas and stormwater facilities from being used in the calculation of open space. The PUD Overlay zone recommended that open space be usable for greenbelts that serve as a buffer between land uses, active or passive recreational facilities, or protecting environmentally sensitive areas or critical areas. 118. The PUD site plan indicates reservation of common open space Tracts "C" and"D", which occupy 1.38 acres, for "drainage facility"purposes. If such tracts are excluded from common open space as "stormwater facilities", there would only be 1.15 acres, or approximately 7% of the total PUD area, in common open space. This would not meet the 10% common open space requirement. Such issue is not addressed in the Staff Report. 119. The pond on Tract "D" is an existing topographical feature of the site. Tracts "C" and "D" include portions of a possible DNR Type 5 or "F" stream, and geo-hazards in the form of erodible soils and/or- slopes equal to or exceeding 30%. 120. Tract "C" may enable pedestrian/bicycle access from the internal public road system in the preliminary plat to Chronicle Street and 14th Avenue located to the south. See p. 1 of traffic impact analysis (TIA) submitted by Sunburst Engineering. 121. Under the above circumstances, Tracts "C" and"D" should be regarded as protecting environmentally sensitive areas or critical areas, and counted toward the 10% common open space requirement of the PUD Overlay zone. Tract "C" may also qualify based on its availability to provide pedestrian/bicycle access to off-site public roadways, a form of active recreation, as indicated in the TIA. 122. The common open space in the preliminary plat represents 15.1% of the gross acreage of the site, which complies with the minimum 10% common open space requirement of the PUD Overlay zone. Each of the three (3) phases proposed for the preliminary plat appear to have at least 10% of their gross area reserved in common open space. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 15 I 0 123. The PUD site plan does not appear to show all the natural features to be retained, i.e. natural slopes, stands of trees, etc., as required by the PUD Overlay zone; other than the existing pond. This mainly applies to the common open space in the preliminary plat, and can be remedied in the final PUD site plan. 124. The proposed PUD has direct access to a designated arterial, Carnahan Road, as required by the PUD Overlay zone. 125. The PUD site plan shows sidewalks along both sides of the public roads, which complies with the pedestrian circulation requirements of the PUD Overlay zone 126. The UR-7 zone required the installation of a 6-foot high, sight-obscuring fence, wall or solid landscaping adjacent to land zoned UR-3.5. This would apply along the east border of the north portion of the site, the north borders of the north portion of the site (except where adjacent to Willamette Street), and the south border of the west part of the north portion of the site. 127. Except for the minor deficiencies indicated above, the PUD site plan complies with the requirements of the PUD Overlay zone. Transportation Concurrence and Impacts 128. The City has adopted the 2001 County Standards for Road and Sewer Construction by reference; with the reference to "County" in such standards replaced with "City". Such standards are referenced below as the "City Road Standards". 129. Section 1.03 of the City Road Standards sets forth guidelines for planning transportation j systems in a proposed development; and recommends the provision of adequate vehicular and pedestrian access to all parcels of land, minimizing through traffic movements and excessive speeds on local access streets, logical street patterns, minimizing vehicular and pedestrian-vehicle conflict points, considering traffic generators in designing a street system in a proposed development, prohibiting new residential lots from directly accessing Principal and Minor Arterials, and consideration of bordering arterial routes. 130. Section 1.03(8) of the City Road Standards requires a proposed subdivision to provide an additional access road into the development to serve fire district vehicles, if it has the cumulative effect of creating a total number of lots, parcels or tracts served by an access road that is (1) equal to or greater than 50 lots, in a"setting" where the housing density ranges from 2.0 to 11 dwelling units per acre. The location of the additional access road must have the concurrence of the local fire district. k • 131. Section 1.03(8) of the City Road Standards also requires the provision of an additional access road into a development to serve fire vehicles, if the fire district concludes that the location and layout of the development causes a concern for safety; regardless of the criteria("table") specified in such section. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 16 1 132. Under the City Road Standards, a private driveway may serve up to three (3) lots without 0 having to be improved to private road and fire apparatus access road standards. 133. The preliminary plat proposes more than 50 lots, and provides two (2) access roads into and out of the development. This satisfies the second access requirements of Section 1.03(8) of the City Road Standards. 134. Spokane County Fire District 1 requested the applicant to submit a detailed drawing regarding the proposed access to Lots 18-20 and the proposed access to Lots 70-72 in the preliminary plat, and advised that such accesses may need to meet fire apparatus access road standards. See Fire District 1 comments submitted on 3-28-06 and 8-1.8-05. 135. The applicant submitted a detail for each driveway on December 6, 2005; which shows each grouping of three (3) lots being served by a private driveway, and the width of each driveway. 136. Section 3.03 of the City Road Standards vests City Engineering with broad discretion in selecting the roadway section to be applied in constructing new city roads and improving existing city roads, based on numerous factors. This includes consideration of such factors as the functional classification of the road, density and zoning in the area, terrain, cost relationship of road improvements, traffic volume, terrain, the density of existing development, proposed or existing zoning, existing roads in the immediate area and surrounding developments; and other public health, safety and welfare considerations. 137. City Engineering conditions of approval require that Carnahan Road be improved along the frontage of the site to a Minor Arterial standard; including the installation of additional asphalt to provide a width of 23 feet from centerline, curb, gutter, drainage swale and concrete sidewalk. 138. City Engineering conditions require the internal roads in the project to be improved to public road standards, including the installation of 30 feet of asphalt, curb, sidewalk, etc. Such conditions also require the installation of traffic calming mitigation features (raised medians) in the extension of proposed Willamette Street in the preliminary plat, and in the center of the off-site cul-de-sac for Willamette Street; as required by the MDNS issued for the consolidated application. 139. City Engineering certified transportation concurrency for the project under the City Phase I Development Regulations on June 6, 2006, with regard to traffic impacts to the City of Spokane Valley street system. This represented a conclusion by City Engineering that the project will not degrade the level of service (LOS) at public road intersections in the area below the minimum levels established in the City Road Standards. 140. In January of 2006, the applicant submitted a traffic impact analysis (TIA) for the project prepared by Ann Winkler of Sunburst Engineering, a qualified traffic engineering consultant. 141. The TIA concluded that the traffic from the project would not have a significant adverse impact on the LOS of intersections in the area that the City required to be studied, but would HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 17 I cause the LOS at the un-signalized intersection of Eighth Avenue and Havana Street, located in g g , the City of Spokane, to be degraded from an acceptable LOS E to a failing LOS F. 142. On February 14, 2006, Ann Winkler submitted an engineering study to the City of Spokane, for an"all-way, stop control warrant analysis" of the off-site intersection of Eighth Avenue and Havana Street, as proposed traffic mitigation. The study recommended two options for mitigating the impact of the project at the intersection. 143. The City of Spokane rejected the mitigation proposed by Ann Winkler as undesirable, and decided not to request mitigation for the intersection from the applicant. See letter dated 3-9-06 from Bob Turner of City of Spokane Street Department to Ann Winkler of Sunburst Engineering. 144. The TIA indicates that with the installation of traffic calming measures, only 10% of the PM peak hour traffic generated by the project will access Willamette Street north of the site, and 90% will use 13th Avenue at Carnahan. The TIA advised that such measures will allow Willamette Street to the north to provide connectivity of the project to the surrounding transportation system, consistent with its status as a local access street, and also serve as a secondary access point required by emergency response personnel. 145. There is no competent evidence in the record of a traffic engineering nature that would support denial of the consolidated application, or the need for traffic mitigation for the project other than what is recommended in the City Engineering conditions of approval. Public Sewer and Water Concurrency 146. The site is located in the City of Spokane sewer and water service area. County Utilities and the Spokane Regional Health District submitted conditions of approval requiring that the applicant coordinate water service for the project through the City of Spokane. 147. The City of Spokane certified the availability of public sewer and water to the project; and also requested that the applicant coordinate with it if it proposed to utilize the water facilities of the Carnhope Irrigation District for the project. The State Boundary Review Board advised that if the applicant proposes to utilize the Carnhope Irrigation District for water service, a notice of intention must be filed with such agency. , 148. The Spokane Regional Health District conditions of approval require the uses on the site to be connected to public sewer and water. The consolidated application, as conditioned, complies with the public sewer and water concurrency requirements of the City Phase I Development Regulations. Impacts on Parks and Recreation 149. The City Parks and Recreation Department did not comment on the proposal. The common open space in the project will provide some passive recreational opportunities for the future residents of the project. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 18 150. The City Phase 1 Development Regulations do not require direct concuiTency for parks. Impacts on Schools 151. The Central Valley School District indicated that it expected to have room for future students from new homes in the project built and occupied before the fall of 2008. The district expressed concern regarding the adequacy of school capacity for students from homes occupied after such time frame; and recommended that the approval of such homes be postponed pending the availability of additional school facilities, or that the applicant pay a"per dwelling fee" equal to the district's "...eligibility for school impact fees." See letter dated 10-1.8-07 from CVSC. 152. The City Phase 1 Development Regulations do not require direct concurrency for schools, and the City has not established authority for the collection of impact fees for schools under chapter 82.02 RCW. Central Valley School District did not appeal the MDNS issued for the project. Under these circumstances, the Examiner lacks authority to condition or deny the proposal based on the district's concerns. Impacts to Cultural Resources 153. The Spokane Tribe of Indians recommended that an archaeological survey be done on the project site, prior to construction, to determine if cultural resources were present on the site. The tribe requested that it be notified if any artifacts or human remains were found during construction, and that all construction cease until an investigation could be done. 154. The tribe did not provide sufficient evidence that cultural resources could or would likely be found on the site, upon which to base a requirement that the applicant perform an archaeological survey of the site. 155. The conditions of approval recommended by the City Planning Division should be supplemented to require notification of the City Planning Division and the State Historical Preservation Office if cultural resources are found, and that all construction stop until such resources can be investigated. Typing of DNR Stream under City Interim Critical Areas Ordinance 156. The City CAO maps adopted on March 31, 2003 show a DNR Type 5 stream extending northeasterly from the south border of the site to a point lying just northwest of the existing pond on the site. 157. The preliminary plat map submitted on September 27, 2007 shows the DNR Type 5 stream following the same general path as shown on the City CAO maps; but continuing northeast inside the east border of the site, to a point lying just south of the north border of the site. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 19 158. The PUD site plan submitted by the applicant on October 27, 2005 shows the DNR Type 5 stream terminating on Tract "D" of the preliminary plat,just south of proposed Lot 1, a short distance southwest of the existing pond on the site. 159. The current DNR "hydrolayer" illustrates a DNR Type "F" stream extending through the site, roughly along the alignment shown on the preliminary plat map; with the stream continuing northerly for some distance offsite, before terminating just south of the intersection of Eighth Avenue and Carnahan Road. 160. The consolidated application is sub j ect to the provisions of the City CAO in effect on July 8, 2005, the date of complete application for the proposal. The City CAO was adopted by reference from Spokane County at the time the City incorporated on March 31, 2003, and was not modified until replaced by chapter 21.40 of the UDC on. October 28, 2007. 161. The DNR stream typing system set forth in Section 11.20.060.D of the CAO was based on the version of WAC 222-16-030 in place in 1996-97; except for the additional requirement for DNR Type 5 streams that they must connect to a Type 1-4 stream before a 25-buffer can be required. Section 11.20.060.D of the CAO provides a brief description of each stream, based on the version of WAC 222-16-030 in place in 1996-97. 162. The current version of WAC 222-16-030 adopts a"permanent" stream typing system; which replaced the "interim" stream typing system that was applicable in 1996-7, and was preserved in amended forms in WAC 222-16-031 until recently. Section 21.40.030 of the UDC adopted the permanent stream typing system contained in current WAC 222-16-030, but does not apply to the consolidated application. 163. The current version of WAC 222-16-030 makes the State Department of Natural Resources (DNR) responsible for preparing "fish habitat typing maps" for the "forested areas of the state"; based on the permanent typing system set forth in such regulation, and using a model intended to differentiate between fish habitat and non-fish habitat streams. DNR is required to update such maps every five (5) years, based on certain protocols; with some allowance for interim changes based on the use of an on-site "interdisciplinary team", and a dispute resolution process that involves DNR, WDOE, the contesting parties, etc. 164. DNR lacks authority to make stream classifications on non-forest lands, or where DNR has reached agreement with a local government allowing it to approve forest practice conversions that change forest land to a different use. This includes the current consolidated application. 165. Under the City CAO, the City's critical areas maps are not regulatory, and can be overruled by more specific information provided through a field investigation by a qualified specialist. The final determination on stream typing is made by the City Planning Division, subject to review by the Hearing Examiner for applications requiring a public hearing. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 20 166. The above regulatory issues are discussed in detail in the Hearing Examiner's decision dated August 30, 2007, in File No. REZ-23-04/SUB-15-04/APP-03-07, 167. On March 11, 2003, Larry Dawes, a qualified wildlife biologist, submitted a riparian evaluation and specialist letter to Spokane County, for a proposed rezone of the south portion of the site, and adjoining land to the south and west, from the UR-3.5 zone to the UR-7* zone, under the County Zoning Code. At the time, the County Critical Areas Ordinance was identical to the later City CAO, 168. The Examiner's decision on the appeal of the DS for the current application contains a detailed discussion of the findings made by Larry Dawes in his letter, and the development history of the site; which findings are incorporated by reference herein. 169. The letter submitted by Larry Dawes, and the rezone site plan attached to the letter, indicated a different path for the seasonal stream on the site than shown on the City's CAO maps, the current DNR hydrolayer, the current preliminary plat map, or the current PUD site plan. The main difference is that the drainage is shown extending northwesterly from the northeast portion of the site, to and beyond the extreme northwest corner of the site; instead of terminating near the pond on the site, or extending to and/or through the northeast corner of the site. 170. The proposed rezone of the south portion of the site to the UR-7* zone under the County Zoning Code expired when the City incorporated in 2003. However, the applicant relied on the report submitted by Larry Dawes to classify the seasonal stream for the current application. 171. Larry Dawes, in his March 11, 2003 letter, classified the seasonal stream on the site as a DNR Type 5 stream; but found that the stream was not required to be protected by a buffer because it did not physically connect to a higher classification DNR Type 1-4 stream. The findings, analysis and conclusions made by Dawes in the letter are persuasive, and were not rebutted by any field investigation or analysis provided by the City Planning Division. 172. The City CAO maps do not show the DNR Type 5 stream on the site connecting to a higher classification stream, and show the stream terminating at the northwest corner of the pond on the site. 173. The fact that the stream is illustrated as a DNR Type "F" stream on the current DNR hydrolayer is not persuasive that the stream needs to be retyped under the City CAO; since the consolidated application is not subject to the permanent typing system which includes a DNR Type "F" stream; and no field investigation was submitted by the City that rebuts the findings made by Larry Dawes. Provisions for Geo-hazards 174. On June 29, 2005, the applicant submitted a geo-hazard evaluation report for the preliminary plat prepared by a qualified engineer and geologist consultant. See report from Cummins Geotechnology, Inc. On October 10, 2007, the applicant's consultant submitted an addendum to the report, in response to an email from Director Kathy McLung of the City Community Development Department. 175. City Planning condition#13, on page 13 of the Staff Report, addresses the subject matter of the memo from Kathy McLung, and requires the final plat dedication to state that homes HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 21 1 constructed on the site with slopes of 25% or greater should have site-specific geo-technical studies conducted. 176. On November 11, 2007, Storhaug Engineering, the applicant's engineering consultant, provided more detailed information regarding future excavation, grading and filling planned for the project; in response to a mitigating measure imposed by the MDNS issued for the consolidated application. See letter dated 11-11-07 from Storhaug Engineering to Brian Main. The applicant also submitted maps on September 27, 2007 which more clearly show the location of erodible soils and slopes of 30% or greater on the site. 177. The geo-hazard evaluation report adequately documents the extent and nature of geo- hazards on the site, and adequately provides mitigating measures and an assessment of geo- hazards associated with developing the site; as required by the City CAO. Impacts on Floodplain and Drainage 178. Floodplain and drainage issues for the project were addressed extensively in the Hearing Examiner's decision issued in File No. APP-02-07. 179. The MDNS issued for the consolidated application required the applicant to submit topographical information and as-builts to show the effect of excavation and grading on the drainage ditch located north of the 12th Avenue right of way and its associated floodplain, and to account for any impacts that this may have had on the 100-year floodplain, or the volumes or locations of stormwater leaving the site. This was in response to findings made in the Examiner's decision that reversed the DS issued for the consolidated application. 180. The floodplain maps prepared by Storhaug Engineering in 2005 show the drainage ditch/seasonal stream terminating near the north border of the northeast portion of the site, at I approximately the same point shown on the preliminary plat map; and show a narrow floodplain adjacent to the stream. The maps were based on a topographical survey of the site completed during the summer of 2004. See exhibit#31 attached to Exhibit 14, in File No APP-02-07; and map 3 of 4 (proposed existing conditions 100-year floodplain map), in Revision to Floodplain Community Panel dated September of 2005. 181. The stormwater project constructed on the site, after permits were issued by the City in May of 2005, eliminated a culvert that allowed water leaving the northwest corner of the on-site pond to drain under an unpaved access road that extends into the site,just north of the unimproved right of way of 12th Avenue. This eliminated the ability of the drainage ditch(seasonal stream) to convey stormwater north of the access road, and its associated floodplain. The stormwater project also filled in portions of the seasonal stream located north of the access road. See citations in finding of fact#59 in Hearing Examiner decision in File No. APP-02-07. 182. The elimination of the culvert and the flow in the drainage ditch occurred prior to survey work being performed on the site in June of 2006; and is also apparent from the recent topographical survey completed for the site in November of 2007. See letter dated 12-10-07 from Storhaug Engineering to City Engineering Department; and exhibit#32 to Exhibit 14, and Exhibit 15, in File No. APP-02-07. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 22 183. The elimination of the floodplain associated with the ditch is reflected in the floodplain crossing analysis prepared by Storhaug Engineering in July of 2006, and in the 2007 floodplain study performed for the project. See "proposed 100 year floodzone (proposed modifications)" map dated 7-7-06, in exhibit 32 to Exhibit 14 in File No. APP-02-07; and analyzed 100-year floodplain delineation (existing conditions) map dated 6-20-07, prepared for the 2007 flood study. 184. Storhaug Engineering indicated that the floodplain flow in the drainage ditch was negligible (less than 1%) compared to the total flow in the floodplain channel, elimination of the flow would not have more than .01 inch of an impact on floodplain elevations in the main channel, construction of the stormwater system for the project will result in some reduction in floodplain. elevations in the main channel, and minor differences between the 2005 flood study and 2007 flood study for the project resulted from the different methodologies used for such studies. See letter dated 12-10-07 from Storhaug Engineering to City Engineering. 185. City Engineering responded to the information provided by Storhaug Engineering by indicating that it appeared that flows in the drainage ditch could be restored; questioning why the different methodologies used in the 2005 and 2007 floodplain studies produced an apparently identical cross section of the floodplain at station 8300 of the floodplain, but show a markedly different cross section of the floodplain between station 8300 and station 8200; and commented that the wider discrepancies between the FEMA floodplain limits and those shown in the Storhaug studies were a more significant issue, and still needed to be addressed. 187. The record suggests that FEMA found the 2007 floodplain analysis prepared by Storhaug Engineering to be acceptable; except with regard to the applicant's failure to provide a"tie-in" of the delineated offsite floodplain to the offsite floodplain shown further downstream on FEMA maps, which FEMA required to be demonstrated before it would issue a"CLOMR" under federal regulations. See decision in File No. APP-02-07; p. 4 of exhibit#24 to Exhibit 14 in File No. APP-02-07; and FEMA letters attached to Declaration of Karen Kendall, in Exhibit 17 in File No. APP-02-07. 188. The applicant should be required to explain to City staff why the different methodologies used in the 2005 and 2007 floodplain studies produced such a different cross section of the floodplain between station 8300 and station 8200, including the offsite portion of the floodplain in such area. 189. Absent such explanation, it should be assumed that the modifications to the site resulting from the stormwater project resulted in an impermissible expansion of the offsite floodplain located between station 8300 and station 8200. This may also affect the conceptual drainage plan submitted for the project, which otherwise appears to meet the requirements of the City Guidelines for Stormwater Management. 190. The information provided by Storhaug Engineering indicates that elimination of the culvert referenced above likely had only a small effect on the offsite floodplain. However, it is conceivable that other work performed on the site for the stormwater project, in conjunction with HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 23 removal of the culvert, may have resulted in the differences in the offsite floodplain located between station 8300 and 8200, in comparing the 2005 flood study and the 2007 flood study. 191. The obtaining of a"CLOMR" from FEMA for the current project would be beneficial; because it would facilitate FEMA's acceptance of the flood study prepared by the applicant's engineer, and thereby avoid future lot owners from having to purchase flood insurance based on the inaccurate floodplain boundaries shown on the FIRM. 192. Requiring the applicant to obtain a"CLOMR" before the floodplain analysis submitted by Storhaug Engineering can be accepted, and the preliminary plat can be approved, is unduly burdensome because of the extensive cost, engineering difficulty and speculative nature of showing a"tie-in" between the floodplain delineated by Storhaug Engineering and the offsite floodplain designated further downstream on the FIRM, where base flood elevation data is not available. 193. The conceptual drainage plan submitted for the application indicates that the stormwater system proposed for the project will result in post-developed off site flow rates and volumes that are lower than pre-developed conditions; after stormwater is conveyed to a large grassy Swale/pond located on land lying directly northwest of the site, where it will be treated and disposed of through infiltration. Compliance with general design requirements in City Interim Subdivision Ordinance 194. The design, shape, size and orientation of lots in the preliminary plat are appropriate for the proposed use of such lots, and for the character of the area in which the lots are located. 195. Block dimensions in the preliminary plat reflect due regard for the needs of convenient access, public safety, emergency vehicle access, topography, road maintenance and provision of suitable sites for the proposed use. Road alignments in the proposal are designed with appropriate consideration for existing and planned roads, anticipated traffic patterns, topographic and drainage conditions, safety and the proposed use of the site. Based on the above findings of fact, the Hearing Examiner enters the following: III. CONCLUSIONS OF LAW 1. Pursuant to RCW 58.17.033, a preliminary plat application is subject to review under the zoning and other development regulations in place at the time a complete application for the development is submitted. 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. Under Washington case law, a complete application for a planned unit development (PUD) submitted with a preliminary plat application vests the right to develop the preliminary plat under HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 24 the PUD standards in place at the time of complete application. See Schneider Homes v. City of Kent, 87 Wn. App. 564 (1994). 4. 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). 5. 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). 6. The City Application Review Procedures for Project Permits, adopted by reference pursuant to City Ordinance No. 60, were repealed by amendment of the City Uniform Development Code (UDC) on October 28, 2007; but were in effect on the date the consolidated application was submitted as complete on July 8, 2005. 7. Section 13.300.110 of the City Application Review Procedures for Project Permits 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. 8. Under Section 13.300.110 of the City Application Review Procedures for Project Permits, and the principles of the Noble Manor case, the Hearing Examiner may consider the proposed rezone of the southerly 8.5 acres of the site, from the UR-3.5 zone to the UR-7* zone, under the provisions of the expired City Interim Zoning Code; and review the proposed preliminary plat and PUD Overlay zone under the UR-7* zone, City Interim Zoning Code, PUD Overlay zone, Interim Subdivision Ordinance, Floodplain Ordinance and other development regulations in place on.July 8, 2005. 9. The proposed rezone cannot be reviewed as a proposed rezone of the site to the R-4 district of the UDC, and the proposed subdivision and PUD Overlay zone cannot be reviewed under the standards of the R-4 district and current UDC; because the applicant did not consent to such amendments, the consolidated application was not processed under the current UDC provisions, and the notice of hearing did not disclose such amendments to the consolidated application. 10. The City Interim Zoning Code authorizes the approval of a site-specific zone reclassification, if the proposed rezone is consistent with the Comprehensive Plan and 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. 11. Washington case law requires the proponent of a rezone to establish, by a preponderance of the evidence, that the proposed rezone bears a substantial relationship to the public health, safety or general welfare; and that a substantial change of circumstances has occurred in the area. However, proof of a substantial change of circumstances is not required if the rezone implements the comprehensive plan of the local government. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 25 12. Pursuant to former Section 10.20.380.F of the UDC, where a subdivision is proposed in an "unnumbered A zone", and base flood elevation data has not been provided and is not available from another authoritative source, the applicant must submit base flood elevation data generated by a civil engineer for the proposed subdivision. See also former Section 10.20.360.D.2 of the UDC. This applies to the current circumstances. 13. Pursuant to former Section 10.20.380.F of the UDC, the proposed preliminary plat must locate and construct public utilities and facilities on the site to minimize or eliminate flood damage, and provide adequate drainage to reduce the exposure to flood damage. 14. Pursuant to former Section 10.20.360.A of the UDC, a floodplain development permit must be obtained before construction or development can occur within the 100-year floodplain on the site. The application for such permit must describe the extent to which a watercourse will be altered or relocated as a result of the proposed development, among other requirements. 15. Pursuant to former Section 10.20.360.D.4 of the UDC, the City Floodplain Administrator (i.e. Director of City Community Development Department) may require a developer to provide "maintenance"within an altered or relocated watercourse, so that the flood-carrying capacity is not diminished. Prior to such alteration or relocation, the Floodplain Administrator must notify "adjacent communities" and the State Department of Ecology of such action; and submit evidence of such notification to the Federal Insurance Administration. 16. Pursuant to former Section 10.20.380.M of the UDC, floodplain areas in the Glenrose area (west of Carnahan road, south of Eighth Avenue), including the floodplain analyzed for the current project, cannot be covered by impervious surfaces or fill unless an engineering study is prepared by a professional registered civil engineer that shows no impact to the ability of floodplain to infiltrate, store and release floodwaters. 17. Pursuant to former Section 10.20.380.I.2 of the UDC, development in "unnumbered A zones" on the Flood Insurance Rate Map (FIRM), such as the site and adjoining land are designated in, may not increase the water surface elevation of the base flood by more than one (1) foot at any point. 18. Pursuant to former Section 10.20.380.I.5 of the UDC, where development increases the surface water elevation of the base flood at any point off-site, the owner of the off-site land must provide written notarized approval of such change. 19. Section 12.400.142 of the City Interim Subdivision Ordinance requires all special statements of approval required from government agencies, including those pertaining to flood hazard areas and critical areas, to be included in the final plat dedication. 20. The summary adopted by FEMA Region 10 for administering Section 60.3(a)(4) of the Code of Federal Regulations (CFR) recommends that a local government administering such provisions through local floodplain ordinances require the submittal and approval of a"CLOMR" HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 26 for large scale proposals before they are built, to assure that FEMA will recognize it for a map change when construction is complete. This advisory is based in part on a"1978 FEMA Guide for Ordinance Development". See exhibit #20 to Exhibit 14, in File No, APP-02-07. 21. The City Floodplain Ordinance does not authorize the City Floodplain Administrator to require the applicant to obtain a"CLOMR" from FEMA, before reviewing and accepting the floodplain analysis prepared by the applicant's engineer for the preliminary plat. 22. The 2007 floodplain analysis prepared by the applicant generally meets the requirements of the City Floodplain Ordinance for the preliminary plat; except there is still some question whether the stormwater project installed for the preliminary plat and adjacent development increased the offsite floodplain located between stations 8300 and 8200, by changing the topography of the site along with blocking the flow of drainage into the northwesterly drainage ditch on the site. 23. The applicant should be required to demonstrate that the differences in the offsite floodplain located between stations 8300 and 8200, in comparing the 2005 flood study to the 2007 flood study prepared by Storhaug Engineering, were the result of different methodologies used for the studies, as contended by the applicant; or were the result of physical changes to the site that resulted from the stormwater project. If the latter, the applicant should be required to modify the site so that the offsite floodplain is not expanded by the stormwater project and the preliminary plat without the permission of the owners of the offsite land affected, and meeting other applicable requirements of the Floodplain Ordinance. 24. There is no DNR stream type on the site that requires protection under the City Interim Critical Areas Ordinance. 25. A condition of approval should be added that requires the final plat to be developed in accordance with the mitigating measures recommended in the June 29, 2005 geo-hazard report. 26. A condition of approval should be added that requires the final plat dedication to indicate the lots, or portions of lots, that are affected by geo-hazards; as required by paragraph 11.20.070.D.3 of the City CAO. 27. The consolidated application, as conditioned, complies with the concurrency requirements of the City Phase I Development Regulations. 28. The proposed rezone of the south portion of the site to the UR-7* zone, as conditioned, conforms to the City Interim Comprehensive Plan, and complies with the City Phase I Development Regulations. 29. The proposed rezone and PUD Overlay zone, as conditioned, bear a substantial relationship, and will not be detrimental, to the public health, safety or welfare. 30. A substantial change in circumstances has occurred in the area since the zoning of the site was reclassified to the UR-3.5 by Spokane County in 1991. This includes designation of the site HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 27 in the Low Density Residential category of the City Interim Comprehensive Plan; adoption of the City Phase I Development Regulations; the 2005 rezone of 1.36 acres of land located directly northeast of the site from the UR-3.5 zone to the UR-7* zone, in File No. REZ-20-05, and the subsequent short platting of such land for single-family homes; and the extension of public sewer to the area. 31. The preliminary plat and dedication, and the proposed PUD Overlay zone, as conditioned, conform to the City Interim Comprehensive Plan and will serve the public use and interest. 32. The preliminary plat and dedication, as conditioned, make appropriate provision for the public health, safety and general welfare; and also make appropriate provision for open spaces, roads, drainage ways, schools and school grounds, playgrounds, parks and recreation, sidewalks for children who walk only to school, sanitary wastes, potable water supplies, easements, utilities, planning features, critical areas, floodplains, and all other relevant facts as specified in RCW 58.17.110 and the City Interim Subdivision Ordinance. 33. The preliminary plat, as conditioned, meets the general design and other subdivision requirements listed in Chapter 12.400 of the City Interim Subdivision Ordinance; and the requirements of chapter 58.17 RCW. 34. The minor deficiencies in the preliminary PUD site development plan noted in the findings of fact above can be remedied in the final PUD site development plan. As conditioned, the PUD site development plan conforms to the PUD Overlay zone. 35. The procedural requirements of the State Environmental Policy Act and the City's Local Environmental Ordinance have been met. 36. The consolidated application, as conditioned, complies with the UR-7* zone, other p , applicable provisions of the City Interim Zoning Code, the PUD Overlay zone, the City Interim Subdivision Ordinance, the City Floodplain Ordinance, the City Interim Critical Areas Ordinance, and other applicable development regulations in effect when the consolidated application was submitted as complete on July 8, 2005. 37. The proposed rezone, as conditioned, meets the criteria established by Washington case law for approving a rezone, and the criteria established in paragraph 14.402.020(1) of the City Interim Zoning Code for amending the City official zoning map. IV. DECISION Based on the Findings of Fact and Conclusions of Law above, the consolidated application for a zone reclassification of the south portion of the site to the Urban Residential-7* (UR-7*) zone, a preliminary plat and PUD Overlay zone is hereby approved, subject to the conditions of the various agencies specified below. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 28 Any conditions of approval of public agencies that have been added or significantly y altered by the Examiner are italicized. This approval does not waive the applicant's obligation to pp comply g with all other requirements of other public agencies with jurisdiction over land development. • Conditions of Approval SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT- PLANNING DIVISION A. General 1. The "applicant", which term shall be deemed to include 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. The underlying zoning of the south portion of the site shall remain in the Single-Family Residential(R-3) district of the Spokane Valley Uniform Development Code (UDC). 3. Future development of the site under the Urban Residential-7* (UR-7*) zone of the expired Spokane Valley Interim Zoning Code and expired Planned Unit Development (PUD) Overlay zone (former Section 4.08.19 of UDC) is limited to the development disclosed in the preliminary plat map of record submitted on September 27, 2007 and the preliminary PUD site development plan of record submitted on October 12, 2007. All other site development shall comply with the underlying R-3 and R-4 districts that apply to the site, and other relevant provisions of the UDC as amended. 4. The approved final plat shall have a maximum of eighty (80) lots for single-family dwellings. Modifications to the preliminary plat are subject to review and approval under Section 20.50.020 (Preliminary Plat Alterations) of the UDC, but shall not increase the number of single- family dwelling units. 5. Pursuant to Section 20.20.050 (Prohibition against sale, lease or transfer of property) of the UDC, any sale, lease, or transfer of any lot or parcel created pursuant to the UDC that does not conform to the requirements of the preliminary plat approval or that occurs without approval, shall be considered a violation of chapter 58.17 RCW, and shall be restrained by injunctive action and shall be illegal, as provided in chapter 58.17 RCW. Each sale, lease, or transfer of each separate lot or parcel of land in violation of any provision of this ordinance shall be deemed a separate and distinct offense. 6. Pursuant to Section 20.30.060 (Extensions of Time) of the UDC, an application form and supporting data for time extension requests much be submitted to the Director at least thirty(30) calendar days prior to the expiration of the preliminary plat approval. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 29 0, 0 7. Pursuant to Section 20.30.050 (Expiration of Preliminary Approval) of the UDC, the approved preliminary plat (South.Terrace Spokane) shall automatically expire on February 21, 2013, unless a time extension is timely applied for and approved by the Director of the Community Development Department. If a request for an extension of time is not timely submitted and approved, the preliminary approval expires and the plat is null and void. Only a single one (1)-year time extension may be granted. 8. Pursuant to former Section 4.08.19.05 of the UDC, a PUD may be developed in phases, subject to an approved phasing schedule. All construction and improvements not completed within five (5) years of approval of the phased final PUD development are subject to compliance with updated City Standards through a time extension action. Any PUD where construction has not commenced before expiration of the final PUD development approval shall become void. 9. Each phase of the PUD must contain the required parking spaces, common open space, ingress, egress and transportation circulation landscape, and utility areas necessary to sustain that phase as an independent development, in the event that the remaining property is not developed. B. Prior to final plat approval or in association with a request for final plat approval, the applicant or successors in interest shall: SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT- PLANNING DIVISION 1. The submitted final plat application shall comply with all submittal requirements specified in Sections 12.400.140 and 12.400.142 of the expired City Interim Subdivision Ordinance. 2. Submit a final plat containing the following note on the face of the plat: "All lots within this plat shall comply with the building setback requirements, maximum building height standard, maximum lot coverage standard and other applicable lot development standards of the expired Urban Residential-7* (UR-7*) zone, or successor zoning designation, to the extent permitted by Washington St ate law in effect at the time of buildin g p ermi t application." n. " 3. An amended SEPA checklist will be required to be submitted with an engineered grading permit addressing specific questions relating to section B.l.a-h. of the checklist. As an advisory, all activity must follow Section 24.50 (Excavation, fill and grading) of the UDC. 4. Prior to expiration of the preliminary PUD, approval of a final PUD development plan is required. Approval of the final planned unit development shall be administrative. A final PUD development differs from the preliminary PUD in the amount of detailed information provided. In addition to all the information required for a preliminary PUD, the final PUD development plan shall include the following items. a. Approved road plans. b. Approved drainage system plans. c. Typical building footprints. d. A tabulation of the percentage of total building coverage in the development. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 30 e. A schematic landscaping plan indicating the type and the size of plant material to be used, and the method for providing permanent maintenance to all planted areas and open spaces. 5. Details and timing of each phase shall be clearly indicated with the number of lots and amount of common open space. 6. Pursuant to foriner Section 4.08.19.02 of the UDC, the preliminary PUD approval shall automatically expire on February 21, 2013, unless the applicant submits a time extension request in writing before the expiration date and a time extension is granted by the Director of the Community Development Department. A single time extension may be granted for a period not to exceed 12 months. Construction shall no commence until a planned unit development has been given final approval. 7. Maintenance and Ownership of Common Open. Space for the PUD: The applicant shall. choose one (1), or any combination of, the following methods of administering common open space: a. Dedication of common open space to the City, which is subject to formal. City acceptance; or b. Establishment of an association or nonprofit corporation of all property owners or corporations within the project area to ensure ownership of and responsibility for perpetual maintenance of all common open space. 8. Transfer of Ownership of the PUD: Where dedication to the public or a homeowners' association is proposed, required improvements shall be completed prior to any transfer of ownership. Where improvements are not completed in accordance with these requirements, building permits and/or approval of permitted structures may be withheld upon notification to the Building Official by the Community Development Director, pending completion of said improvements. 9. Phasing of the PUD: All common spaces, as well as public and recreational facilities, shall be specifically included in the phasing schedule and be constructed and fully improved by the applicant at an equivalent or greater rate than the construction of structures. 10. The applicant shall submit convincing evidence that the differences shown in the off-site 100 year floodplain located between stations 8200 and 8300, in comparing the 2005 floodplain study and the 2007 floodplain study submitted by the applicant's engineer, resulted from different methodologies (as contended by the applicant), rather than physical changes made to the site by the applicant after the initial survey of the site was completed in the summer of 2004. 11. If the differences shown in the offsite floodplain between stations 8200 and 8300, in comparing the 2005 floodplain study to the 2007 floodplain study, resulted from physical alteration of the site by the applicant, the applicant shall modify the site so that the offsite floodplain is not expanded without the permission of the owners of the offsite land affected, and other applicable requirements of the Floodplain Ordinance are met. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 31 I I I 12. The final plat map shall indicate the 100-year floodplain as shown on the existing FIRM map, unless proof is provided that FEMA has modified the official map. If the FIRM has not been modified, the final plat dedication may include a note that an engineering study has been submitted that indicates that the 100 year floodplain on the site is in a different location than shown by the FIRM map, and that floodplain development permits may be required based on the revised location. 13. Within the dedication language on the face of the plat the following note shall be made; "Houses being constructed on lots having ground surface slopes that are 25% or greater at the house location should have site-specific geotechnical studies conducted by a qualified geotechnical engineer. The studies should address, at a minimum, site preparation, embankments,foundations,foundation drainage and site drainage. " 14. The final plat shall be developed in accordance with the mitigating measures recommended in the June 29, 2005 geo-hazard report submitted by Cummins Geotechnology, Inc. 15. The final plat dedication shall indicate the lots, or portions of lots, that are affected by geo-hazards. SPOKANE VALLEY PUBLIC WORKS DEPARTMENT —DEVELOPMENT ENGINEERING DIVISION: 16. A Professional Engineer, licensed in the State of Washington, shall submit final street and drainage plans and a drainage report including calculations that conform to the 2001 Edition of the Spokane County Standards for Road and Sewer Construction(or as amended), the 1998 Spokane County Guidelines for Stormwater management (or as amended), City of Spokane Valley Uniform Development Code and all other Federal, State and Local regulations. 17. Frontage improvements are required on Carnahan Road, which is a Minor Arterial street located in an Urban Residential zone. Frontage improvements include 23 feet of asphalt width from road centerline, Type B curb and gutter(2 feet), 10 foot roadside swale, and a 5 foot sidewalk. The total width of improvements is 40 feet. Current right-of-way is 60 feet; 1/2 of the right-of-way being 30 feet. A border easement, which extends from the right-of-way to back of sidewalk, of 10 feet is required. This shall be designated on the construction plans and final plat map. The border easement width was determined assuming that the center of the road coincides with the center of the right-of-way. The applicant shall confirm the right-of-way location and width. Note—the building setback begins at the edge of the border easement. 18. 13th Avenue from Carnahan Road to Willamette Street, and the new portion of Willamette Street, shall be designated and designed as public streets. Such streets shall be composed of 30 feet of asphalt width and, on each side, Type B curb and gutter (2 feet), 10 foot roadside swale and a 5 foot sidewalk. The total width of improvements is 64 feet. This requires 38 feet of right- of-way dedication and 13 foot border easements on both sides. This shall be designated on the final plat language and map. Note—the building setback begins at the edge of the border. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 32 I 0 19. To mitigate transportation impacts from this project, traffic calming measures shall be implemented. These traffic-calming measures are to include raised islands in the median of the proposed section of Willamette Street as well as in the center of the off site cul-de-sac at the end of the existing Willamette Street to the north of the project. 20. The project proponent is responsible for arranging for all necessary utility adjustments, relocations, or improvements as required for completion of the project. The developer needs to contact the purveyors of each affected utility regarding private service, utility improvement, and any relocation and adjustment costs. All rigid objects shall be located out of the clear zone. These clear zone requirements can be found in the 2001 Spokane County Road and Sewer Standards, as adopted by the City or as amended. 21. The civil plans submitted for the installation of utilities in the Spokane Valley roadway system shall show the extent of pavement removal and replacement; a cross section which shows existing lane width and replacement lane width, pavement thickness, top course thickness and cross slope; and profiles showing centerline, right and left edge of pavements including grades and changes in elevation from existing, and how the replaced roadway ties into existing. 22. A traffic control plan will be required for work within the right-of-way. The plan shall be part of the civil submittal and shall address all utility connections and potential lane closures anticipated for construction of this project. 23. A Temporary Erosion and Sedimentations Control (TESC) plan, prepared by a Washington State licensed Professional Engineer, must be prepared and submitted with the site construction plans and will cover all construction activities for the improvements proposed in these laps. The e TESC plan shall follow 1998 Spokane County Guidelines for Stormwater Management, as adopted by the City or as amended. 24. All new dry wells and other injection wells must be registered with the Underground Injection Control program(UIC) at Department of Ecology prior to use and the discharge from the well(s) must comply with the ground water quality requirement (non-endangerment standard) at the top of the ground water table. Contact the UIC staff at UIC Program, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-6143 or go to: http://www.ecy.wa.gov/programs/wq/grndwtr/uic/reg_istration/reg_info.html for registration forms and further information. Copies of the registration for drywells, which receive public road stormwater runoff, are to be sent to Development Engineering. The City of Spokane Valley NPDES Permit Number is WAR04-6507. 25. The applicant shall submit written evidence of the formation of a Homeowners Association(HOA) to perpetually operate and maintain the on-site private facilities and the offsite stormwater pond. 26. Easements shall be provided for portions of the storm drain system and Glenrose Creek 100-year floodplain that are located on private property within the final plat, in accordance with HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 33 the Guidelines for Stormwater Management. No structures shall be placed over a drainage easement. 27. An easement shall be provided that allows runoff from this project to be discharged into the offsite stormwater pond in perpetuity. 28. Show all utility easements (i.e. Telephone, power, etc.). CITY OF SPOKANE WASTEWATER MANAGEMENT DEPARTMENT: 29. The developer must contact the City of Spokane's Wastewater Management Department to see if mutually agreeable arrangements can be made to allow a PUD (private development) to be located over the Trunk Sewer easement. There is an existing 8-inch City sanitary sewer located in Willamette Street from 8th Avenue to approximately 660 feet to the south, which is adequate and available to serve the proposed South Terrace PUD. The City of Spokane's Moran Trunk Sewer, ranging in size from 21 to 27 inches in diameter, also extends through the proposed PUD. 30. The developer will be responsible for all costs (design, construction, inspection, GFC, franchise, permit, etc.) associated with constructing public/private sanitary sewer extensions and service connections necessary to serve said development. All improvements must he in accordance with City of Spokane standards. CITY OF SPOKANE WATER&HYDROELECTRIC SERVICES DEPARTMENT: 31. A hydraulic analysis, addressing both domestic and fire flows, must be submitted to the City of Spokane's Engineering Services—Developer Services Staff to determine the extent of water improvements required. 32. If the developer is proposing to utilize any of Carnhope's water facilities, this must be coordinated through the City of Spokane's Water& Hydroelectric Services Department. 33. The developer will be responsible for all costs (design, construction, inspection, GFC, franchise, tap, meter, permit, etc.) associated with constructing public/private water mains and service connections necessary to serve said development. All improvements must be in accordance with City of Spokane standards. SPOKANE REGIONAL HEALTH DISTRICT: 34. The final plat shall be designed substantially as indicated on the preliminary plat of record and/or any attached sheets as noted. 35. Appropriate utility easements shall be indicated on copies of the preliminary plat of record for distribution by the City of Spokane Valley Community Development Department to the utility companies, Spokane County Engineer, and the Spokane Regional Health District. Written HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 34 approval of the easements by the utility companies shall be received prior to the submittal of the final plat. 36. Sewage disposal method shall be as authorized by the City of Spokane Public Works. 37. Water service shall be coordinated through the City of Spokane Public Works. 38. Water service shall be by an existing pubic water supply when approved by the Regional Engineer (Spokane), State Department of Health. 39. Prior to filing the final plat, the applicant shall demonstrate to the satisfaction of the Spokane Regional Health District that an adequate and potable water supply is available to each lot of the plat. { 40. Prior to filing the final plat, the applicant shall present evidence that the plat lies within the recorded service area of the water system proposed to serve the plat. 41. A plan for water facilities adequate for domestic use, domestic irrigation use, and fire protection use shall be approved by the water purveyor. The water plan must have been approved by the fire protection district and the appropriate health authorities. The health authorities, water supplier (purveyor), and the fire protection district will certify, prior to the filing of the final plat, on the face of the water plan that the plan is in conformance with their requirements and will adequately satisfy their respective needs. The water plan and certification will be drafted on a transparency suitable for reproduction. 42. The purveyor will also certify prior to filing the final plat on a copy of said water plan that appropriate contractual arrangements have been made with the plat sponsor for construction of the water system, in accordance with the approved plan and time schedule. The time schedule will provide, in any case, for completion of the water system and inspection by the appropriate health authorities prior to application for building permits within the plat. The contractual arrangement will include a provision holding the City of Spokane, Spokane Regional Health District, and the purveyor harmless from claims by any lot purchaser refused a building permit due to failure of the plat sponsor to satisfactorily complete the approved water system. 43. A public sewer system will he made available for the plat and individual service will be provided to each lot prior to sale. The use of individual on-site sewage disposal systems shall not he authorized. 44. The final plat dedication shall state: "A public sewer system will be made available for the plat and individual service will be provided to each lot prior to sale. Use of individual on-site sewage disposal systems shall not he authorized." 45. The final plat dedication shall state: "Use of private wells and water systems is prohibited." BE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 35 I 46. The final plat dedication shall state: "The public water system pursuant to the Water Plan approved by County and State health authorities, the local fire protection district, City of Spokane Valley Community Development Department and water purveyor, shall be installed within this subdivision, and the applicant shall provide for individual domestic water service as well as fire protection to each lot prior to sale of each lot and prior to issuance of a building permit for each lot." SPOKANE COUNTY FIRE DISTRICT NO. 1: 47. Roadways with traffic calming islands, and fifteen (15) feet on either side of the roadway, shall be posted"No Parking—Fire Lane." 48. The traffic calming islands on 13th Avenue shall be a minimum of thirty-five (35) feet off of Carnahan Road. 49. Submit a detailed drawing regarding access to Lots 18-20 and 70-72. A fire apparatus might be required. 50. Three (3) fire hydrants shall be installed at the following locations: a. Corner of lots 39 and 40 b. At lots 10 and 11 c. At lots 49 and 50 51. A detailed water plan is required showing hydrant location and size. 52. If gates are proposed a"to scale" drawing shall be submitted for review and approval. 53. Where a fire hydrant is located on a fire apparatus access road, the minimum road width shall be twenty-six(26) feet. 54. Fire apparatus access roads 20 feet to 26 feet wide and turnarounds shall be posted on both sides as "Fire Lane No Parking." 55. Addresses shall be posted during construction. AVISTA UTILITIES: 56. A ten (10) foot wide easement strip adjacent to and adjoining all public and private roads shall be provided along each lot, including all vacated roads, Tracts A and B and open spaces. 57. The final plat dedication shall state: `Dry" utility easements shown on the herein described plat are hereby dedicated for the use of serving utility companies for the construction, reconstruction, maintenance, protection, inspection and operation of their respective "Dry" facilities, together with the right to prohibit changes in grade that will reduce the existing coverage over installed underground facilities and the right to trim and/or remove trees, bushes, HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 36 landscaping and to prohibit structures that may interfere with the construction, reconstruction, reliability, maintenance, and safe operation of same. " C. Prior to or during on-site construction the a licant or successors in interest shall: SPOKANE VALLEY PUBLIC WORKS DEPARTMENT- DEVELOPMENT ENGINEERING DIVISION: 1. A pre-construction conference with Development Engineering is required prior to the start of construction. During this meeting, standards and submittal requirements for the Construction Certification will be given to the project engineer/inspector. 2. For construction affecting public right-of-way- fourteen (14) days prior to construction, securely post a sign at each ingress to the project area that is clearly visible from the right-of-way and provides project construction details. 3. Permits are required for any access to or work within the right-of-way of the Spokane Valley roadway system. 4. NOTICE—The Regional Pavement Cut Policy(County Standards, Technical Reference F) may prevent or limit pavement cuts in the adjacent street(s). There is a three (3)-year moratorium on pavement cuts for newly paved streets. Please contact the City right-of-way inspector at (509) 688-0053 for further information. 5. The TESC structures (such as filter fence, silt ponds, silt traps) shall be installed prior to the start of site work and maintained throughout the duration of construction and until the site has stabilized. SPOKANE REGIONAL CLEAR AIR AGENCY: 6. 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. 7. 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. 8. Debris generated as a result of this project shall be disposed of by means other than burning. 9. If objectionable odors result from this project, effective control apparatus and measures shall be taken to reduce odors to a minimum, 10. Special attention shall be given to proper maintenance of diesel powered construction equipment to reduce the impact of diesel exhaust, a suspended carcinogen. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 37 11. A Notice of Construction and Application for Approval shall 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 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. Contact SCAPCA for a Notice of Application. 12. A Notice of Intent shall 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. CITY OF SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT- PLANNING DIVISION 13. Upon any discovery of potential or known archaeological resources at the subject property prior to or during on-site construction, the developer, contractor, and/or any other parties involved in construction shall immediately cease all on-site construction, shall act to protect the potential or known historical and cultural resources area from outside intrusion, and shall notify, within a maximum period of twenty-fours from the time of discovery, the City of Spokane Valley Community Development Department of said discovery. DATED this 21st day of February, 2008 CITY HEARING EXAMINER PRO TEM Mic .`el C. Dempsey, WSBA#823 le HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 38 NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Chapter 17.90 of the Spokane Valley Municipal.Code (SVMC), which is part of the City of Spokane Valley Uniform Development Code(UDC), the decision of the Hearing Examiner on a consolidated application for a site specific zone reclassification, preliminary plat and Planned Unit Development(PUD) Overlay zone is final and conclusive unless within fourteen (14) calendar days from the Examiner's written decision, a party with standing under SVMC Chapter 17.90 files an appeal of the decision with the City Council of the City of Spokane Valley, City Hall, 11707 E. Sprague Avenue, Suite 106, Spokane Valley, Washington; in accordance with all the requirements of Chapter 1.7.90 of the UDC. This decision was mailed by regular mail to the Applicant, and to all government agencies and persons entitled to notice under Section 17.80.130(4) of the UDC, on. February 21, 2008. THE APPEAL CLOSING DATE IS MARCH 6, 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; and may be inspected by contacting Leslie Busch at (509) 477-7490. The file may be inspected during normal working hours, listed as Monday-Friday of each week, except holidays, between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period, the file may be inspected at the City of Spokane Valley Department of Community Development-Planning Division, 11707 E. Sprague Avenue, Spokane Valley,WA, 99206; by contacting Karen Kendall at (509) 921-1000. Copies of the documents in the record will be made available at the cost set by the City of Spokane Valley. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. HE Findings, Conclusions and Decision REZ-14-05/SUB-10-05/PUD-04-05 Page 39