REZ-29-06 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Application for a Rezone from the Urban )
Residential-7* (UR-7*) Zone to the ) FINDINGS OF FACT,
Neighborhood Business (B-1) Zone; ) CONCLUSIONS OF LAW,
Applicant: Whipple Consulting Engineers ) AND DECISION
File No. REZ-29-06 )
I. SUMMARY OF DECISION
Hearing Matter: Application for a rezone from the UR-7* zone to the B-1 zone.
Summary of Decision: Approve application, subject to conditions.
H. FINDINGS OF FACT
1. The application seeks approval of a zone reclassification from the Urban Residential-7*
(UR-7*) zone to the Neighborhood Business (B-1) zone, on approximately 15,400 square feet of
land, for those uses permitted in the B-1 zone.
2. The site is located at the southeast corner of the intersection of 16th Avenue and Oberlin
Road, and is situated in the SE 1/4 of Section 29, Township 25 N, Range 44 E.W.M., Spokane
County, Washington.
3. The site is currently referenced as County Assessor's tax parcel no. 45291.0102; and is
addressed at 10604 E. 16th Avenue, Spokane Valley, Washington.
4. The applicant is Whipple Consulting Engineers, Inc., 2528 N. Sullivan Road, Spokane
Valley, Washington, 99216. The site owner is Harlan Douglass, 815 E. Rosewood Avenue,
Spokane, Washington, 99208.
5. On September 18, 2006, the applicant submitted a complete application for a zone
reclassification in the above file.
6. On December 1, 2006, the City Department of Community Development-Planning Division
issued a Determination of Nonsignificance (DNS) for the proposal. The DNS was not appealed.
7. On January 18, 2007, the Hearing Examiner conducted a public hearing on the proposal.
The notice requirements for the public hearing were met. The Examiner conducted a site visit on
January 18, 2007, prior to the hearing.
8. The Hearing Examiner heard the proposal pursuant to Chapter 10.35 of the Spokane Valley
Municipal Code (SVMC), and the City Hearing Examiner Rules of Procedure.
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9. The following persons testified at the public hearing:
Chaz Bates, Contract Planner Todd Whipple
City of Spokane Valley Whipple Consulting Engineers
11707 East Sprague Avenue 2528 N. Sullivan
Spokane Valley, WA 99216 Spokane Valley, WA 99206
Bruce Zimmerman Rodney Humphrey
1602 S. Oberlin Road 10521 E. 16th
Spokane Valley, WA 99206 Spokane Valley, WA 99206
10. The Hearing Examiner takes notice of the City of Spokane Valley Comprehensive Plan,
Phase I Development Regulations, Interim Zoning Code, official zoning maps, Standards for
Road and Sewer Construction, and Guidelines for Stormwater Management; other applicable
development regulations; and prior land use decisions in the vicinity.
11. The record includes the documents in File No. REZ-29-06 at the time of the public hearing,
the documents and testimony submitted at the public hearing, and the items taken notice of by the
Hearing Examiner.
12. The site is relatively flat in topography; and is improved with a 4,300-square foot, retail
building with two (2) storefronts and paved parking. The property has a small amount of
landscaping in the southwest corner, and is served by two (2) driveway approaches on both 16th
Avenue and Oberlin Road. See site plan dated July 21, 2006, and photos of site.
13. The site was used in the past for assorted retail uses, including a 7-11 store, small restaurant
and barbershop; but has been vacant over the past few years. See testimony of Todd Whipple.
14. In approximately 1992, the County zoned the site, and the parcels located directly east and
southeast of the site along University Road, in the Local Business (LB) zone of the expired
County Zoning Ordinance. See decision in File No. ZE-228-52.
15. Effective January 1, 1991, the zoning of the site and the adjacent parcels to the east and
southeast were reclassified to the Neighborhood Business (B-1) zone of the County Zoning Code,
pursuant to the Program to Implement the Spokane County Zoning Code.
16. In 1992, the County rezoned the land lying south of the site, and adjacent land located to the
east and southeast along University Road, to the Urban Residential-7 (UR-7) zone for the
development of duplexes. See decision in File No. ZE-49-92.
17. In 1999, the County rezoned 10.4 acres of land located approximately 1,000 feet west of the
site, along the south side of 16th Avenue west of Felts Road, from the Urban Residential-3.5 (UR-
3.5) zone to the Urban Residential-12 (UR-12) zone; and approved the preliminary plat of
Dishman Commons, to develop 39 multi-family dwellings, 26 duplex dwellings, a single-family
HE Findings, Conclusions and Decision REZ-29-06 Page 2
dwelling, and a small private park on such acreage. See decision in File No. PE-1859-98/ZE-17-
98.
18. Effective January 15, 2002, Spokane County implemented a new comprehensive plan,
Urban Growth Area(UGA) boundaries and County Phase I Development Regulations, pursuant
to the State Growth Management Act. See County Resolution Nos. 2-0037 and 2-0470.
19. The County Comprehensive Plan designated the site and neighboring land in the Low
Density Residential category of the Comprehensive Plan; except for 2.5 acres of land located at
the southeast corner of the intersection of Dishman-Mica Road and 16t1i Avenue, which were
designated in the Neighborhood Commercial category.
20. The County Phase I Development Regulations reclassified the zoning of the site, and the
parcels lying directly east and southeast of the site, from the B-1 zone to the Urban Residential-7*
(UR-7*) zone. This made the retail uses located on the site and such adjacent land
nonconforming uses.
21. On March 31, 2003, the City of Spokane Valley was incorporated. On the same date, the
City adopted by reference, as City land use controls, the County's Comprehensive Plan, Zoning
Code, Phase I Development Regulations and other development regulations; subject to certain
revisions.
22. The City Phase I Development Regulations retained the zoning of the site and neighboring
land.
23. On January 6, 2004, the Hearing Examiner approved a rezone of 2.5 acres of land located at
the southeast corner of the intersection of Dishman-Mica Road and 16th Avenue, referenced
above, from the UR-3.5 zone to the Community Business (B-2) zone, for unspecified commercial
development. See decision in File No. REZ-17-03.
24. On May 10, 2006, the City implemented a new Comprehensive Plan, pursuant to City
Ordinance No. 06-010. The City Phase I Development Regulations were updated to implement
the new Comprehensive Plan, pursuant to City Ordinance No. 06-011.
25. The City Comprehensive Plan designates the site, the parcels lying directly east and
southeast of the site, and the 2.5 acres of land located at the southeast corner of the intersection
of Dishman-Mica Road and 16th Avenue, in the Neighborhood Commercial category; and
designates the elementary school property located at the southeast corner of the intersection of
16th Avenue and University Road in the Public/Quasi-Public category. The Plan designates the
other land in the area in the Low Density Residential category.
26. The parcels lying directly east and southeast of the site are improved with a convenience
store, which includes gas pump islands. Duplexes are located on the land lying south and
southeast of the site, and on the parcel located at the northeast corner of the intersection of
University Road and 16th Avenue. See County Assessor parcel information in file.
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27. The southeast corner of the intersection of Dishman-Mica Road and 16th Avenue is
improved with an espresso stand. Medium density residential housing is located to the west in the
Dishman Commons subdivision. The other land in the area is dominated by single-family
dwellings on urban-sized lots.
28. The City Arterial Road Plan designates Dishman-Mica Road, 16th Avenue and University
Road as Urban Principal Arterials; and designates Felts Road, north of 16th Avenue, as an Urban
Collector Arterial.
29. University Road is improved to a 4-lane section to the east, including curb and sidewalk;
and 16th Avenue is improved to a 3-lane section, including curb and sidewalk. The area is served
by public transit, public sewer and water, and modern utilities.
30. Rodney Humphrey, who resides at the northwest corner of the intersection of Oberlin Road
and 16th Avenue, expressed opposition to the proposal; based on potential conflicts of commercial
development on the site with the surrounding residential neighborhood and residential zoning, and
the nearby grade school. Humphrey requested that the site be made to conform to the
development standards of the B-1 zone, and made more aesthetically appealing, if the rezone was
approved; and requested that the rocks located along the frontage of the site be removed to
prevent damage to his property.
31. Bruce Zimmerman, who resides directly west of the site across Oberlin Road, at the
northwest corner of the intersection of Oberlin Road and 16th Avenue, commented that he did not
oppose rezoning the site; but requested that the applicant significantly reduce the driveway access
from the site to Oberlin Road, install 6-foot high sight-obscuring fencing and/or landscaping along
the entire west boundary of the site, revise the lighting on the west side of the building on the site
so that it does not adversely impact the residences located to the west, limit the size and height of
the signage along 16th Avenue for the commercial uses operated on the site, limit the size and
illumination of the commercial signage located on the building on the site, not install signs along
Oberlin Road, and consider moving garbage pick-up to the east side of the property to reduce
litter onto residential properties located west of the site.
32. The City Phase I Development Regulations require a proposed rezone to be consistent with
the implementing zone(s) specified in such regulations for the Comprehensive Plan category in
which the rezone site is designated. The B-1 zone is an implementing zone for the Neighborhood
Commercial category.
33. The purpose and intent statement for the B-1 zone set forth in Section 14.624.100 of the
City Interim Zoning Code has largely been rendered irrelevant by significant changes to the
development standards of such zone. The most relevant statement in Zoning Code 14.624.100 is
that the purpose of the B-1 zone is "...to allow for limited, small-scale neighborhood serving
retail and office uses..."
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34. The minimum lot area, lot frontage, lot width, minimum front yard and lot coverage for a
business use in the B-1 zone are, respectively, 5,000 square feet, 50 feet, 50 feet, 35 feet and
50%. The site easily meets such requirements.
fr
35. The minimum flanking street yard, minimum side yard adjacent to UR-7 zoning, and
minimum rear yard for a business use in the B-1 zone are, respectively, 35 feet, 10 feet and 15
feet; while the respective setbacks for the building on the site are only 25 feet, five (5) feet and
five (5) feet.
36. The landscaping standards of the B-1 zone require the installation of five (5) feet of Type III
(see through buffer) along the public road frontage of the subject property, and require the
installation of 20 feet of Type I landscaping adjacent to land zoned UR-7. The land lying south of
the site consists of duplexes on land zoned UR-7. The land lying directly east of the site consists
of a convenience store on land zoned UR-7.
37. The site plan shows landscaping along the frontage of the site adjacent to 16t1i Avenue and
Oberlin Street, but the ground photos of the site show only a minimal amount of landscaping in
the southwest corner of the site. The Staff Report indicates that a 6-foot high, sight-obscuring
fence, erected on a 2-foot high concrete wall, is located along the south(rear) property line of the
site.
38. The City Interim Zoning Code authorizes a nonconforming use to expand, remodel or
rebuild on the parcel on which it is contained, as if the use was a permitted use in the current
zone; subject to complying with the applicable development standards of the zone, and prohibit
the establishment of a new use on the property that is not allowed by the current zone. The City
Interim Zoning Code renders a nonconforming use that is discontinued or abandoned for a period
of one (1) year null and void. See Zoning Code 14.508.040.
39. The City Interim Zoning Code authorizes the upkeep, repair and maintenance of
nonconforming buildings; and authorizes a building that is not conforming with regard to a
nonconforming use, height, yard requirements, lot coverage or density to be restored, altered or
extended; provided the alteration or extension does not result in further violation of the
development standards of the current zone. See Zoning Code 14.508.060.
40. The Staff Report recognizes that retail use of the site is nonconforming under the UR-7*
zone; and the existing building on the site is nonconforming as to side yard, rear yard and flanking
street yard setbacks, landscaping and possibly parking. The Staff Report recommends that the
applicant meet the landscaping and parking requirements of the B-i zone, as much as is practical.
41. The Staff Report sets forth the purpose and intent of the Neighborhood Commercial
category of the Comprehensive Plan, and applicable policies of the Plan for commercial uses in
such category; and found the proposed rezone to be consistent with such policies. Policy LUP-
1.1 set forth in the Staff Report does not apply to the proposal, because the site is not designated
in a residential category.
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42. Policy LUP-4.1 of the Comprehensive Plan recommends that retail developments be
integrated into surrounding residential areas with attention to quality design and function. Policy
LUP-4.3 encourages retail and personal services to group together within planned centers to
allow for east of pedestrian movement. Policy LUP-4.4 encourages mixed-use and commercial
and office development in the Neighborhood Commercial category, where compatibility with
nearby uses can be demonstrated.
43. The location of the building on the site make it infeasible to install 20 feet of Type I
landscaping along the rear property line, meet the 10-foot setback required along the east
property line, or meet the 35-foot flanking street yard setback required along 16th Avenue.
44. The applicant's land use and engineering consultant, Todd Whipple, indicated at the public
hearing that consideration would be given to eliminating the southerly driveway approach to the
site along Oberlin Road, and mitigating the effects of garbage pickup on the residences located to
the west; current signage on the site is limited to wall signage on the existing building; and
commercial use of the site would generate relatively little traffic.
45. Under the City Interim Zoning Code, the applicant would not be allowed to enlarge the
building on the site (except possibly to the north) due to its nonconforming nature, and any added
signage must be consistent with the restrictive signage standards of the B-1 zone.
46. The City Interim Zoning Code limits the height of a sight-obscuring fence in the flanking
street yard(west side of property) to three (3) feet, and prohibits exterior lighting on the site from
directly illuminating any building or structure on an adjacent lot that contains a residence. See
Zoning Code Chapter 14.810. The B-1 zone requires the screening of all outdoor refuse areas
from public view, including installation of a 5.5-foot wall or sight-obscuring fence on at least
three sides, and a sight-obscuring gate.
47. The use limitations and development standards of the B-1 zone are more restrictive than
those for the Community Business (B-2) and Regional Business (B-3) zones; and are intended to
ensure the development of relatively low intensity commercial uses, that serve and are compatible
with a surrounding residential neighborhood. The B-1 zone prohibits taverns.
48. City Public Works deferred road conditions until the time of application for a residential
building permit. Since the rezone application was submitted without a site development plan for a
new use, the proposed rezone is exempt from the transportation concurrency requirements of the
City Phase I Development Regulations.
49. The County Division of Utilities, and Spokane County Water District#3, respectively
certified the availability of public sewer and water for the proposal. County Utilities conditions of
approval recommended for the proposed rezone require the extension of public sewer to the site.
The preliminary plat complies with the public sewer and water concurrency requirements of the
City Phase I Development Regulations.
HE Findings, Conclusions and Decision REZ-29-06 Page 6
50. The site is located in a suitable location for a B-1 zone; considering its location along an
Urban Principal Arterial, its relatively close proximity to another Urban Principal Arterial and a
Collector Arterial on the east and west, improvement of 16t1i Avenue to a 3-lane arterial standard
including the installation of curb and sidewalks, location of the site adjacent to a convenience
store on one side, the past retail use of the site, the duplex housing located to the south, the buffer
of a public road between the site and nearby single-family dwellings, and the availability of a high
level of public services to the site.
51. Significant changes have occurred in the area since the zoning of the site was reclassified to
the UR-7* zone in 2002. This includes the approval of a rezone to the B-2 zone at the southeast
corner of the intersection of Dishman-Mica Road and 16th Avenue, designation of the site and
adjacent property in the Neighborhood Commercial category of the Comprehensive Plan, road
improvements to 16th Avenue, and the extension of public sewer to the site.
Based on the above findings of fact, the Hearing Examiner enters the following:
g
III. CONCLUSIONS OF LAW
1. The City Interim Zoning Code authorizes a site-specific amendment to the City's official
zoning map (i.e. a rezone), if the amendment 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.
2. 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.
3. The proposed rezone complies with the rezone and concurrency requirements of the City
Phase I Development Regulations.
4. Retail use of the existing building on the site is nonconforming, and such building is a
nonconforming building, in the UR-7* zone that currently applies to the site.
5. The nonconforming building on the site should be made to conform to the development
standards of the B-1 zone as much as practicable; in particular regarding the installation of
landscaping along 16th Avenue and Oberlin Road, and meeting the parking requirements of the B-
1 zone.
6. The developer of the site cannot increase the nonconformity of the existing building on the
site with the development standards of the B-1 zone.
7. The proposed rezone, as conditioned, implements the Neighborhood Commercial category
of the Comprehensive Plan, and conforms to the relevant policies of the Comprehensive Plan.
HE Findings, Conclusions and Decision REZ-29-06 Page 7
8. The procedural requirements of the State Environmental Policy Act and the City
Environmental Ordinance have been met. The proposal, as conditioned, will not have a
significant, probable adverse impact on the environment.
9. A substantial change of circumstances has occurred in the area since the site was last zoned.
10. The proposed rezone, as conditioned, bears a substantial relationship to, and will not be
detrimental to, the public health, safety or welfare.
11. Approval of the proposed rezone is appropriate under Chapter 14.402.020(1) of the City
Zoning Code, and Chapter 10.35 of the City Municipal Code.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law above, the subject application for a
zone reclassification to the Neighborhood Business (B-1) zone is hereby approved, subject to the
conditions of approval set forth below.
Conditions of Approval:
SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT PLANNING
DIVISION:
1. The "applicant", which term shall include the owner and the developer of the site, and their
successors in interest, shall comply with the conditions of approval set forth in this decision.
2. The Spokane Valley Interim Zoning Map shall be updated to specify a Neighborhood
Business (B-1) zone designation for Parcel Number 45291.0102.
3. Prior to issuance of a change of use permit, the applicant shall submit a parking plan and
landscaping plan to the Planning Division for review and approval.
4. The applicant shall, to the maximum extent practicable, meet the on-site parking and the
landscaping requirements of the B-1 zone.
SPOKANE COUNTY DIVISION OF UTILITIES
1. A wet (live) sewer connection to the area-wide public sewer system shall be constructed. A
sewer connection permit is required. Commercial developments shall submit historical and or
estimated water usage prior to the issuance of the connection permit in order to establish sewer
fees.
2. The applicant shall submit expressly to Spokane County Division of Utilities, under
separate cover, only those plan sheets showing sewer plans and specifications for the public sewer
BE Findings, Conclusions and Decision REZ-29-06 Page 8
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connections and facilities for review and approval. Commercial developments shall submit
historical and or estimated water usage as part of the sewer plan submittal.
3. Sewer plans acceptable to the Division of Utilities shall be submitted prior to the issuance of
the sewer connection permit.
4. Any water service for this project shall be provided in accordance with the Coordinated
Water System Plan for Spokane County, as amended.
SPOKANE COUNTY AIR POLLUTION CONTROL AUTHORITY:
1. Dust emissions during demolition, construction, and excavation projects shall be controlled.
Appropriate measures shall include but are not limited to the use of water sprays, tarps, sprinklers
or suspension of activity during certain weather conditions.
2. Measures shall be taken to avoid the deposition of dirt and mud from unpaved surfaces onto
paved surfaces. If tracking or spills occur on paved surfaces, measures must be taken immediately
to clean these surfaces.
3. Debris generated as a result of this project shall be disposed of by means other than burning.
4. If objectionable odors result from this project, effective control apparatus and measures
shall be taken to reduce odors to a minimum.
5. Special attention shall be given to proper maintenance of diesel powered construction
equipment to reduce the impact of diesel exhaust, a suspended carcinogen.
6. 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.
7. 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.
8. SCAPCA strongly recommends that all traveled surfaces (i.e. ingress, egress, parking
areas, access roads, etc.) be paved and kept clean to minimize dust emissions.
HE Findings, Conclusions and Decision REZ-29--06 Page 9
SPOKANE TRIBE OF INDIANS
1. If any artifacts or human remains are found upon excavation, the office should be
immediately notified and the work in the immediate area cease.
WASHINGTON STATE DEPARTMENT OF ECOLOGY
1. Proper erosion and sediment control practices may be used on the construction site and
adjacent areas to prevent upland sediments from entering surface water. Local stormwater
ordinances will provide specific requirements. Also refer to the Stormwater Management Manual
for Eastern Washington, at http://www.ecy.wa.gov/programs/wq/stormwater/eastern
manual/manual.html. All ground disturbed by construction activities must be stabilized. When
appropriate, native vegetation typical of the site should be used.
DATED this 27th day of February, 2007
CITY HEARING EXAMINER PRO TEM
Micha-1 C. Dempsey, WSBA#8235
BE Findings, Conclusions and Decision REZ-29-06 Page 10
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Section 10.35.150 of the City of Spokane Valley Municipal Code (SVMC), as
amended, the decision of the Hearing Examiner on a zone reclassification is final and conclusive
unless within fourteen(14) calendar days from the Examiner's written decision, a party of record
aggrieved by such decision files an appeal with the City Council of the City of Spokane Valley,
City Hall, 11707 E. Sprague Avenue, in Spokane Valley, Washington; in accordance with all the
requirements of SVMC #10.35.150.
This decision was mailed by certified mail to the Applicant, and by first class mail to other
parties of record, on February 28, 2007. THE APPEAL CLOSING DATE IS MARCH 14,
2007.
The complete record in this matter, including this decision, is on file during the appeal
period with the Office of the Hearing Examiner, Third Floor, Public Works Building, 1026 West
Broadway Avenue, Spokane, Washington, 99260-0245, (509) 477-7490. The file may be
inspected during normal working hours, listed as Monday- Friday of each week, except holidays,
between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period, the file may be inspected
at the City of Spokane Valley Department of Community Development-Planning Division, 11707
E. Sprague Avenue, Spokane Valley, WA. Copies of the documents in the record will be made
available at the cost set by City of Spokane Valley Ordinance.
Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation
for property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision REZ-29-06 Page 11