REZ-21-07 SUB-08-07 SPOKANE COUNTY HEARING EXAMINER
RE: Application for a Rezone, from the UR-3.5 )
Zone to the UR-7* Zone; and for a )
Preliminary Plat; ) ORDER TO RESCHEDULE
Applicant: Diamond Rock Construction, Inc. ) PUBLIC HEARING
File No. REZ-21-07/SUB-08-07 )
)
I. FINDINGS OF FACT
1. On October 25, 2007, the applicant submitted a combined application in the above file; to
rezone two (2) acres of land from the Urban Residential-3.5 (UR-3.5) zone to the Urban
Residential-7*(UR-7*) zone, under the City Interim Zoning Code; and for a preliminary plat, to
divide such acreage into eight (8) divided duplex lots and two (2) lots for single-family dwellings,
under the City Interim Subdivision Ordinance.
2. The site is located along the south side of Eighth Avenue, approximately 370 feet east of
Bowdish Road; and is situated in the SE '/4 of Section 21, Township 25N, 44 EWM of Spokane
County.
3. The site is currently referenced as County Assessor tax parcel no. 45214.9117, and has a
site address of 11612 E. 8thi Avenue, Spokane Valley, Washington.
4. The applicant, and the site owner, is Diamond Rock Construction, Inc., c/o Dennis Crapo,
15321 E. Mission Avenue, Spokane Valley, WA 99037.
5. On October 26, 2007, the City Community Development Department-Planning Division
("City Planning Division) issued a determination of completeness for the application.
6. On October 28, 2007, the City expanded and re-codified its Uniform Development Code
(UDC), as part of Titles 17-24 of the Spokane Valley Municipal Code (SVMC). The new UDC
replaced the City Interim Zoning Code, Interim Subdivision Ordinance, City Phase I Development
Regulations, and other City development regulations in place at the time.
7. On October 28, 2007, the City adopted new zoning maps throughout the city to implement
the new UDC. Such action reclassified the zoning of the site and neighboring land from the UR-
3.5 zone of the City Interim Zoning Code to the Single-Family Residential(R-3) district of the
UDC.
8. On October 28, 2007, the City Planning Division notified the applicant that it did not
consider the rezone portion of the application to be "vested" under the City Interim Zoning Code
and City Phase I Development Regulations, due to the adoption of the new UDC; and would have
to recommend denial of the proposed rezone. The applicant requested the Planning Division to
Order to Reschedule Public Hearing REZ-21-07/SUB-08-07 Page 1
continue processing the application in its current form, despite such recommendation. See staff
notes in application file.
9. On November 15, 2007, the City Planning Division issued a notice of application for the
proposal. The notice acknowledged that the City had recently adopted a new UDC; but stated
that the application was vested under the City's interim regulations in effect at the time the
application was determined to be complete, and was being reviewed under such regulations.
10. The notice of application described the combined application as requesting a rezone of the
site from the UR-3.5 zone to the UR-7* zone, and approval of a preliminary"short" plat. The
notice listed applicable development regulations, which were those in effect at the time the
application was determined to be complete on October 26, 2007; i.e. prior to the adoption of the
new UDC.
11. On December 27, 2007, the City Planning Division issued a Determination of
Nonsignificance (DNS) for the project. The DNS described the application as requesting a rezone
of the site from R-3 to R-4 (i.e. Single-Family Urban Residential district), and approval of a
preliminary plat.
12. On February 1, 2008, notice of a public hearing scheduled for February 21, 2008 was
provided. The notice of hearing, which was prepared by the City Planning Division, described the
application as requesting a rezone of the site from R-3 to R-4, and approval of a preliminary
"short" plat. The notice listed applicable development regulations, which were those adopted by
E the new UDC on October 28, 2007.
13. On February 7, 2008, the City Planning Division submitted a staff report for the
consolidated application. The Staff Report described the combined application as requesting a
rezone of the site from R-3 to R-4, and approval of a preliminary subdivision.
14. The Staff Report reviewed the application under the new UDC, concluded that a proposed
rezone of the site from R-3 to R-4 did not meet the criteria for approval of a rezone under the
new UDC, and recommended denial of the combined application.
15. On February 21, 2008, the Hearing Examiner commenced a public hearing on the
consolidated application; and conducted a site visit prior to the hearing.
16. The following persons testified at the public hearing:
Christina Janssen, Assistant Planner Stacy Bjordahl
Spokane Valley Community Development Dept. Attorney at Law
11707 E. Sprague Avenue, Suite 106 505 W. Riverside, #500
Spokane Valley, WA 99206 Spokane, WA 99201
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I
Jeff Logan, P.E.
601 W. Riverside, Suite]900
Spokane, WA 99201
17. At the public hearing, the applicant contended that the requested rezone should be reviewed
as being from the UR-3.5 zone to the UR-7* zone, under the expired City Interim Zoning Code
and City Phase I Development Regulations.
18. The applicant also contended that the requested preliminary plat should be reviewed under
the former UR-7* zone, City Interim Zoning Code, City Interim Subdivision Ordinance and other
development regulations in place at the time the application became complete on. October 25,
2007. See testimony of Stacy Bjordhal, and Exhibit#13.
19. At the public hearing, the applicant advised that at the time the application was submitted, it
believed that the combined application would remain vested under the regulations in place at the
time the application became complete, notwithstanding the pending adoption of the new UDC;
and that it did not consent to amending the application to a rezone from the R-3 district to the R-
4 district, or to review of the preliminary plat under the new UDC. This was not disputed by the
City Planning Division.
20. At the public hearing, the Hearing Examiner concluded that the City Planning Division did
not have the authority to amend the combined application to a proposed rezone from R-3 to R-4
under the new UDC, without the permission of the applicant; regardless of whether the proposed
rezone of the site to the UR-7* zone lost its vesting status when the new UDC was adopted on
October 28, 2007.
21. The Hearing Examiner included in the record, by reference, a copy of a legal summary
prepared by City Attorney Mike Connelly on the rezone vesting issue, submitted to the Examiner
at a previous hearing.
22.2 The Hearing earmg Examiner advised the parties that he had recently issued rezone decisions, and
would soon be issuing another rezone decision, concluding that a rezone application could"vest"
under the City Interim Zoning Code, and City Phase I Development Regulations, pursuant to
Section 13.300.110 (Standard of Review) of the City Application Review Procedures for Project
Permits.
23. The Hearing Examiner reserved ruling on the vesting issue for the proposed rezone, to allow
the City Attorney an opportunity to submit legal authority on the vesting issue in light of the
Examiner's comments at the hearing.
24. On February 21, 2008, the Hearing Examiner sent an email to City Attorney Mike Connelly,
and to Stacy Bjordahl, the applicant's attorney. The email attached copies of three recent rezone
decisions issued by the Examiner that addressed the vesting issue. See decisions in File Nos.
REZ-08-07/SUB-01-07, REZ-12-07 and REZ-14-05/SUB-10-05/PUD-04-05.
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25. The Examiner's email left the record open until February 28,p a y 2 2008, to allow legal counsel
the opportunity to submit further briefing on the vesting issue. The Examiner did not receive
anything further from the parties on the vesting issue, prior to such deadline.
26. The design of the preliminary plat is inconsistent with the UR-3.5 zone that applied to the
site at the time it was submitted, in a number of respects. The combined lot sizes in the
preliminary plat for each of the four(4) duplex pairs range from 11,002 square feet to 13,005
square feet, compared to the 20,000-square foot minimum lot size for a duplex required in the
UR-3.5 zone. The combined frontages for the duplex pairs range from 96.1 feet to 113.45 feet,
compared to the 80-foot minimum lot frontage for a duplex dwelling in the UR-3.5 zone. The
density(net) of the preliminary plat is 5.85 dwelling units per acre, compared to the 4.35 dwelling
units per acre maximum density(net) permitted in the UR-3.5 zone.
27. The design of the preliminary plat is also inconsistent with the R-3 district of the UDC that
now applies to the site. This includes the minimum lot area per dwelling unit of 7,500 square feet,
the minimum lot width of 80 feet, the minimum side yard of five (5) feet (outside a Planned
Residential Development), and no allowance for divided duplexes in the R-3 district.
II. CONCLUSIONS OF LAW
1. The applicant submitted a complete application on October 25, 2007 to rezone the site from
the UR-3.5 zone to the UR-7* zone, under the City Interim Zoning Code and the City Phase I
Development Regulations; and for approval of a preliminary plat; prior to the City's adoption of
the new UDC on October 28, 2007.
2. The applicant did not request or consent to an amendment of the application as a rezone of
the site from the R-3 district to the R-4 district, or to review of the proposed preliminary plat,
under the regulations of the new UDC.
3. The City issued a Determination of Nonsignificance, and required a notice of public hearing,
based on a description of the application as a rezone of the site from R-3 to R-4, and review of
the proposed preliminary plat under the regulations of the new UDC. The applicant did not
consent to such characterization or amendment of the application.
4. 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.
5. 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.
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6. 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 iv.
King County, 36 Wn. App. 635 (1984).
7. 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
the PUD standards in place at the time of complete application. See Schneider Homes v. City of
Kent, 87 Wn. App. 564 (1994).
8. The current application requests a rezone, not a PUD Overlay zone, under the City Interim
Zoning Code. The current circumstances are distinguishable from the facts in Schneider Homes.
9. 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).
10. The City Application Review Procedures for Project Permits, adopted by reference pursuant
to City Ordinance No. 60, were repealed by amendment of the UDC on October 28, 2007; but
were in effect on the date the consolidated application was submitted as complete on July 8, 2005.
11. 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.
12. Under Section 13.300.110 of the City Application Review Procedures for Project Permits,
and the principles of the Noble Manor case, the rezone portion of the application is subject to
review as a proposed rezone from the UR-3.5 zone to the UR-7* zone, under the expired City
Interim Zoning Code and City Phase I Development Regulations; and the preliminary plat portion
of the application is subject to review under the UR-7* zone, City Interim Zoning Code, Interim
Subdivision Ordinance, and other development regulations in place on October 25, 2007.
13. The proposed rezone cannot be reviewed as a rezone from the R-3 district to the R-4
district of the new UDC, and the proposed subdivision cannot be reviewed under the standards of
the R-4 district and new UDC; because the applicant did not consent to such revisions to the
application.
14. The City should issue a new threshold determination, and a new notice of hearing, for the
r
combined application; describing the combined application as a proposed rezone from the UR-3.5
zone to the UR-7* zone; and a proposed preliminary plat request subject to review under the City
Interim Zoning Code, Interim Subdivision Ordinance, and other development regulations that
were in place on October 25, 2007.
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Ill. ORDER
Based on the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that
the City Planning Division issue a new threshold determination for the application under the
former City Environmental Ordinance, and provide for a new notice of public hearing; based on
characterization of the application as a proposed rezone of the site from the UR-3.5 zone to the
UR-7* zone, and a proposed preliminary plat, subject to review under the City Interim Zoning
Code, Phase I Development Regulations, Interim Subdivision Ordinance and other development
regulations in place on October 25, 2007.
This order is not subject to appeal at this time.
A copy of this order was sent by email and regular mail to the parties on March 6, 2008.
DATED this 6th day of March, 2008
SPOKANE COUNTY HEARING EXAMINER
Michael . Dempsey, WSBA#8235 #
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