ZE-37B-96 fi
SPOKANE COUNTY HEARING EXAMINER
RE: Application for a Change of Conditions )
to a Prior Rezone, in the Light ) FINDINGS OF FACT,
Industrial (I-2) Zone; ) CONCLUSIONS OF LAW,
Applicant: Centennial Properties, Inc. ) AND DECISION
File No. ZE-37B-96 )
I. SUMMARY OF DECISION
Hearing Matter: Application for a change of conditions to a prior rezone, in the I-2 zone.
Summary of Decision: Approve application, subject to conditions of approval.
II. FINDINGS OF FACT
1. The application requests a change of conditions, to eliminate the second sentence in
Planning Condition No. 4 of the rezone decision approved in File No. ZE-37-96, on August 17,
1999; which sentence requires the review of any proposed development on the rezone property at
a future public hearing by the Hearing Examiner; as it pertains to the portion of the rezoned
property making up the current site.
2. The site is located east of and adjacent to Mirabeau Parkway, north of and adjacent to
Indiana Avenue, and south of the Spokane River; in Spokane Valley, Washington.
3. The property is situated in the East 1/2 of Section 10, and the S1/2 and NW 1/4 of Section 11;
of Township 25N, Range 44 EWM of Spokane County, Washington.
4. The site is currently referenced as County Assessor's tax parcel nos. 45104.9132,
45105.9133, 45113.9025 and 45114.9028. The site is approximately 76.5 acres in size, not 88.5
acres as indicated in the Staff Report.
5. The applicant and the site owner is Centennial Properties, Inc., Attention Robert Smith,
P.O. Box 2160, Spokane, WA 99210.
6. On December 15, 2006, the applicant submitted a complete application for the proposed
change of conditions. On June 22, 2007, the City Community Development Department adopted
the environmental impact statement (EIS) prepared for the Sullivan Park Center on September 16,
1980.
7. On August 9, 2007, the Hearing Examiner conducted a public hearing on the application.
The notice requirements for the public hearing were met.
HE Findings, Conclusions and Decision ZE-37B-96 Page 1
Is
8. The Hearing Examiner heard the proposal pursuant to Chapter 10.35 of the City Municipal
Code, Section 14.504.040 of the City Interim.Zoning Code, and the City Hearing Examiner Rules
of Procedure.
9. The following persons testified at the public hearing:
1
Chaz Bates, Assistant Planner Stanley Schultz
Spokane Valley Planning Dept Attorney at Law
11707 E. Sprague, Suite 106 425 S. Alpine Drive
Spokane Valley, WA 99206 Liberty Lake, WA 99019
10. The Hearing Examiner takes notice of the City Comprehensive Plan, Interim Zoning Code,
Phase I Development Regulations, Critical Areas Ordinance, and Municipal Code; other
applicable development regulations; and recent land use decisions in the vicinity.
11. The record includes the documents in the application file at the time of the public hearing;
the documents submitted at the public hearing; and the items taken notice of by the Examiner.
12. The site is currently vacant and undeveloped. The westerly one-third(1/3) of the site is
relatively flat in topography and sparsely vegetated. The remainder of the site has rolling
topography; and is covered with trees, grasses and other native vegetation.
13. The Spokane River lies a varying distance of approximately 115-430 feet from the site,
measured from the northeast corner to the northwest corner of the site.
14. City Critical Areas map designate the river as a Type 1 stream, with a 250-foot wide riparian
buffer. The City Shoreline Master Program designates the Spokane River as a shoreline of
statewide significance, and designates the 200-foot shoreline area located on and northerly of the
site in the Pastoral Area.
15. The City Critical Areas maps do not designate any priority wildlife habitat, wetlands or
DNR streams on the site.
16. The City Critical Areas maps adopted in 2003 designate the location of a State "Monitored
Species" along the Spokane River approximately 500 feet north of the northwest corner of the
site. If such designation denotes a den or nest site for a non-game priority species, Section
11.20.060.B.1 of the City Critical Areas Ordinance authorizes the City to restrict regulated uses
and activities within one-fourth(1/4) mile of such location.
17. The Examiner takes notice that the Washington State Department of Fish and Wildlife
priority habitat database currently shows both a State "Monitored Species" and a State
"Candidate Species" in such general location.
18. On August 17, 1999, the County Hearing Examiner approved the rezone of approximately
106 acres of land, including the subject property, from the Rural Residential-10 (RR-10) zone to
the I-2 zone of the former County Zoning Code; for the development of recreational facilities, a
HE Findings, Conclusions and Decision ZE-37B-96 Page 2
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business park, various commercial uses and those uses allowed in the 1-2 zone. The decision
found the rezone application to be "counter-complete" as of March 23, 1999,. for the purpose of
0 determining applicable regulations under the County's Application Review Procedures for Project
Permits. See decision in File No. ZE-37-96.
19. The rezone site included two (2) disconnected pieces of land, i.e. a 17.3-acre north piece
located mostly along the south side of Mirabeau Parkway(formerly Euclid Avenue); and an 88.5-
acre south piece located north of the Union Pacific Railway and Indiana Avenue, on both the east
and west sides of Mirabeau Parkway.
20. The site represents the easterly 76.5 acres of the 88.5-acre south piece of the 1999 rezone.
An environmental impact statement (EIS), habitat management plan and overall conceptual plan
was prepared for the overall 229-acre Mirabeau Point Development; including the 106-acre
rezone area.
21. County Planning condition#4 imposed by the 1999 rezone decision provides as follows,
regarding the overall, 229-acre "Mirabeau Point Development":
"4. The proposal shall be developed substantially in accordance with the conceptual
plan dated April 29, 1999 and submitted on April 29, 1999, except as modified to comply
with the conditions of approval and applicable development regulations. Development
of the northerly 17.3 acres of the site under the 1-2 zone is limited to those uses which
are eithd outright or by conditional use in both the I-2 zone and the Industrial
Park(I-1)er permitted zone. A public hearing review by the Hearing Body is required prior to any
site development of those uses proposed along the northerly boundary of the south 88.5
acres of the site located east of Mirabeau Parkway, to determine the suitability of the use
with respect to its impacts on the adjacent shoreline and riparian buffer areas, the
Centennial Trail, and compliance with applicable development regulations. The detailed
site plan presented at a subsequent hearing must address all conditions of approval
imposed by the Hearing Body. Any significant changes must be approved through the
change of conditions process conducted pursuant to a public hearing.
22. County Planning conditions #9-12 of the 1999 rezone decision specify as follows: r
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"9. The applicant and proposal shall comply with the Spokane County Critical F
,
Areas Ordinance as amended. The site plan presented at time of building permit shall r
illustrate the required 250 foot riparian buffer area from the Ordinary High Water Mark il
(OHWM) of the Spokane River.
10. The applicant shall comply with and implement the recommendations contained
in the Mirabeau Point Habitat Evaluation and Management Plan, with regard to the
project site and the off-site portions of the 229-acre Mirabeau Point development. This 1
includes, without limitation, reservation of the central natural area of the development,
provision for avian buffer zones, and dedication of 10-11 acres of park land to Spokane
i
County. The timing of such dedication of park land shall be determined by the County
Parks and Recreation Department, after consultation with the applicants and the
Division of Building and Planning.
HE Findings, Conclusions and Decision ZE-37B-96 Page 3
11. The Division of Building and Planning shall consult with the Washington State
Department of Wildlife in implementing the habitat management plan for the Mirabeau
Point development.
12. The proposal falls under the j jurisdiction of the Washington State
Shorelines Management Act, RCW 90.58, and the Spokane County Shoreline
Master Program, WAC 173-19-400. The applicant is advised that one or more
shoreline permits may he necessary for development within the shorelines."
23. On August 31, 2001, the County Hearing Examiner approved a change of conditions to the
1999 rezone decision; to allow the development of certain structures on the public land lying west
of the site, between Mirabeau Parkway and Discovery Road; which land is currently owned by the
City and developed with a community center. The change required such property to comply with
the recommendations contained in a modified version of the habitat management plan for the
Mirabeau Point development, prepared in March of 2001. See decision in File No. ZE-37A-96.
24. In 2002, the County adopted Urban Growth Area(UGA) boundaries, a new comprehensive
plan, and the County Phase I Development Regulations. The County Phase I Development
Regulations designated the site and neighboring land in the UGA, and retained the 1-2 zoning of
the site.
25. On March 31, 2003, the City of Spokane Valley was incorporated in the area. On the same
date, the City adopted by reference the County's comprehensive plan, zoning code, County Phase
I Development Regulations, and other development regulations; with certain revisions. The City
retained the zoning and comprehensive plan categories for the site and neighboring land
established by the County.
26. At the time of incorporation in 2003, the City amended the text in Section 14.629.080 of the
County Zoning Code (industrial zones matrix) to delete the allowance of all uses permitted in the
Regional Business (B-3) zone of the County Zoning Code, as permitted uses in the I-2 zone
subject to compliance with the development standards of the B-3 zone. In 2004, the City
amended various development standards of the I-2 zone.
27. On May 10, 2006, the City implemented a new City Comprehensive Plan("Comprehensive
Plan"), pursuant to City Ordinance No. 06-010. The City Phase I Development Regulations were
revised to implement the Comprehensive Plan, pursuant to City Ordinance No. 06-011.
28. The Comprehensive Plan designates the site, and the land lying west of the southerly one-
third (1/3) of the site, in the Mixed Use category; designates the land lying north of the site, and
the land lying west of the northerly two-thirds (2/3) of the site, in the Parks and Open Space
category; and designates the land lying south of the site and Indiana Avenue in the Regional
Commercial category.
29. The site and neighboring land are zoned I-2; except for the land lying south of easterly two-
thirds (2/3) of the site, which is zoned Regional Business (B-3).
HE Findings, Conclusions and Decision ZE-37B-96 Page 4
30. The land lying between the site and the Spokane River contains a portion of the Spokane
Centennial Trail, a regional trail system, and is owned by the Washington State Parks and
Recreation Department. A credit union owns the land lying between the site and Mirabeau
1 Parkway to the west.
31. The land lying northwest of the site, west of Mirabeau Parkway, is owned by the City,
contains a 10-acre City park, and a large natural area. An 88-acre, undeveloped conservation area
owned by the Washington State Natural Resources abuts the City parkland on the west.
32. The land lying west of the northerly two-thirds (2/3) of the site, between Mirabeau Parkway
and Discovery Place Road, north of Mansfield Avenue, is owned by the City and includes a
community center and vacant land. The land lying further to the west, and the land lying west of
the southerly one-third (1/3) of the site, consists of a YMCA, office uses and vacant land.
33. The Spokane Valley Mall, commercial and office uses, vacant land and a railroad line are
located between Indiana Avenue and Interstate 90 south of the site. A transit stop is located
southwest of the site, along the north side of Indiana Avenue.
34. The City Arterial Road Plan designates Mirabeau Parkway and Mansfield Avenue as
Collector Arterials; Mansfield Avenue extended east beyond Mirabeau Parkway, and south to the
intersection of Evergreen Road and Indiana Avenue, as a future Collector Arterial; Indiana
Avenue as a Minor Arterial; and Evergreen Road and Sullivan Road as Principal Arterials.
35. The 1999 rezone decision noted various reasons for imposing the public hearing requirement
in Planning Condition#4 of the decision. The decision found that each phase of the Mirabeau
Point project should be subject to detailed site plan review through the public hearing process;
due to the general nature of the conceptual site plan submitted for the Mirabeau Point project, the
range and high intensity of uses possible under the 1-2 zone, the need to determine compliance
with the County Shoreline Master Program and County Critical Areas Ordinance, and the need to
determine compliance with all development standards and conditions of approval,
36. The 1999 rezone decision expressed concern regarding the intensity and types of business
park uses planned along or near the river, east of Mirabeau Parkway, some of which were
potentially located within the 250-foot wide riparian buffer and the 200-foot wide shoreline area
associated with the river; and that some uses allowed in the I-2 zone would be too intensive to be
located in this area.
37. The 1999 rezone decision also expressed concern over the development of uses in the I-2
zone, in the north portion of the rezone area(northwest of the site), that may be too intensive to
be located adjacent to the DNR conservancy land and the proposed County park land, which land
J y p p Yp
was zoned Rural Residential-10 (RR-10) under the County Zoning Code at the time; and also
expressed concern over the potential commercial development along Euclid Avenue (now part of
Mirabeau Parkway) to the north. This concern did not relate to the current site.
38. At the time the 1999 rezone decision was approved, the site and other land making up the
rezone property were designated in the Rural category of the County Comprehensive Plan, which
category did not contemplate development of the light industrial and commercial uses allowed in
HE Findings, Conclusions and Decision ZE-37B-96 Page 5
the I-2 zone at the time. This played a factor in the imposition of the public hearing requirement
in Planning Condition#4 imposed by the 1999 rezone.
39. The Staff Report found that the provisions of the City Critical Areas and the City
Shoreline Master Program provided adequate protection for the shoreline area and 250-foot
riparian buffer area on and adjacent to the site, and that the public hearing requirement in Planning
Condition#4 should be deleted.
40. The Comprehensive Plan indicates that the Mixed Use category is intended to allow for two
or more different land uses within developments; which can be either vertically or horizontally
mixed; and may include employment uses such as office, retail and/or lodging with higher density
residential uses, and in some cases community or cultural facilities. Mixed use developments in
the category are contemplated as being developed pursuant to a coherent, approved plan of
development; and achieving compatibility through a design that integrates physical and functional
features such as transportation systems, pedestrian ways, open areas and courtyards, and common
focal points or amenities.
41. The policies under Goal LUG-2 and LUG-9 of the Comprehensive Plan are relevant to
development in the Mixed Use category. Such policies contemplate the development of a variety
of housing types in such category; including apartments, condominiums, town houses, duplex and
single-family dwellings on small lots. The Comprehensive Plan also contemplates a mix of other
land uses in such category; including a full range of retail goods and services, public/quasi-public
uses and/or open space, professional office and other employment oriented uses, and commercial
uses that require large land areas but have low employment density and are auto-dependent.
42. Policy LUP-2.2 of the Comprehensive Plan recommends use of design and performance
standards to achieve integration in mixed use developments; including performance standards that
focus on scale, appearance and compatibility; and variations in facades and rooflines to add
character and interest to multifamily developments.
43. Under the City Phase I Development Regulations, the I-2 zone is one of the implementing
zones for the Mixed Use category of the Comprehensive Plan.
44. The Examiner takes notice that the City is in the process of revising the City Interim Zoning
Code to provide zones and development standards that implement the various categories of the
Comprehensive Plan, including the Mixed Use category.
45. The City Interim Zoning Code indicates that the purpose of the I-2 zone is to meet the needs
for industrial land identified in the Comprehensive Plan; the industrial uses included in such zone
were processing, fabrication, light assembly, freight handling and similar operations of a non-
offensive nature; the intent of the I-2 zone was to allow for such uses by making them compatible
with surrounding uses; and areas zoned I-2 would be served by a high level of public services and
urban infrastructure. See Zoning Code 14.632.100.
HE Findings, Conclusions and Decision ZE-37B-96 Page 6
46. The I-2 zone contains development, storage, screening and landscaping standards that are
intended to buffer industrial uses from neighboring land uses and ensure the aesthetic
development of such uses.
47. Neighboring property owners did not comment on the cwTent application, and public
agencies did not express any opposition to the application or request any new conditions.
48. The City Shoreline Master Program prohibits commercial development in the Pastoral Area.
The riparian habitat performance standards set forth in the City Critical Areas Ordinance generally
require riparian buffer areas to be retained in their natural condition. Such regulations would
appear to significantly restrict commercial or light industrial development of the portion of the site
located within 250 feet of the ordinary high water of the Spokane River.
Based on the above findings of fact, the Hearing Examiner enters the following:
III. CONCLUSIONS OF LAW
1. RCW 36.70B.030 provides that fundamental land use planning choices made in adopted
comprehensive plans and development regulations shall serve as the foundation for project review;
and that the review of a proposed development's consistency with applicable development
regulations, or in the absence of pertinent development regulations, the policies of the adopted
comprehensive plan, shall govern the type of land use, density of residential development in urban
growth areas, the availability and adequacy of public facilities identified in the comprehensive plan
if the plan or development regulations provide for funding of such facilities under the State
Growth Management Act, and other features of the development.
2. Under Washington case law, a local zoning code supersedes any conflicting policies in a
local a comprehensive plan.
3. Section 10.35.070(J) of the City Municipal Code requires the Hearing Examiner to hear and
decide applications for a change of conditions to a prior rezone that requires a public hearing.
Section 14.504.040 of the City Interim Zoning Code requires that proposed a l t
er ations or
additions to approved site development plans for rezones that are contrary to the findings and
conditions adopted for the rezone must be approved by the City Hearing Examiner.
4. The current application is subject to hearing and decision by the Examiner, under such
provisions.
5. The public hearing review requirement contained in the 3rd and 4th sentences of Planning
Condition#4 is not needed to ensure that future development of the site will provide adequate
protection of shoreline areas and riparian buffer areas on and adjacent to the site; since the other
conditions of approval imposed by the 1999 rezone decision require the City Planning Division to
administratively apply the provisions of the City Shoreline Master Program and City Critical
Areas Ordinance to any proposed site development.
6. The 2nd sentence in Planning Condition#4 of the 1999 rezone should be deleted, because it
applies to a different portion of the rezoned property than the current site. The 4th sentence of
HE Findings, Conclusions and Decision ZE-37B-96 Page 7
the condition should be removed, since it is rendered superfluous by deletion of the 3`a sentence.
The last (5"') sentence of the condition should be preserved, because substantial changes proposed
to an approved site plan for a rezone are subject to the submittal of a change of conditions
application, and review and approval of the application at a public hearing by the Hearing
Examiner; as referenced above.
7. The proposed change of conditions conforms to the City Comprehensive Plan.
8. The proposed change of conditions bears a substantial relationship, and will not be
detrimental, to the public health, safety or welfare.
9. A substantial change of circumstances has occurred in the area since the site was rezoned to
the I-2 zone in 1999; including inclusion of the site in the County UGA and the City of Spokane
Valley, adoption of the City Comprehensive Plan, adoption and amendment of the City Phase I
Development Regulations, amendment of the I-2 zone through the adoption of the City Interim
Zoning Code, the development of neighboring properties included in the 1999 rezone under the I-
2 zone in an aesthetic and non-offensive manner, and increased commercial and light industrial
development south of the site.
10. The proposed change of conditions complies with the I-2 zone, the City Interim Zoning
Code, the City Phase I Development Regulations, the City Critical Areas Ordinance, and other
applicable development regulations.
11. The procedural requirements of the State Environmental Policy Act and the City
Environmental Ordinance have been met. The application, as conditioned, will not have a
significant, probable adverse impact on the environment.
12. Approval of the change of conditions application is appropriate under Section 14.504.040 of
the City Interim Zoning Code, and Chapter 10.35 of the Spokane Valley Municipal Code; and
meets the criteria established by Washington case law for approving a rezone
IV. DECISION
Based on the Findings of Fact and Conclusions of Law above, the above application for a
change of conditions is hereby approved; and Planning Condition#4 of the rezone approved on
August 17, 1999 in File No. ZE-37-96 is hereby amended for the current site to read as follows:
"4. The proposal shall be developed substantially in accordance with the conceptual
plan dated April 29, 1999 and submitted on April 29, 1999, except as modified to comply
with conditions of approval and applicable development regulations. Any significant
changes must be approved through the change of conditions process conducted pursuant
to a public hearing.
This amendment to Planning Condition#4 of the 1999 rezone applies only to the land
currently referenced as County Assessor's tax parcel nos. 45104.9132, 45105.9133, 45113.9025
and 45114.9028. All other conditions imposed by the 1999 rezone decision in File No. ZE-37-96
HE Findings, Conclusions and Decision ZE-37B-96 Page 8
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shall continue to apply to the Light Industrial (1-2) zoning of the site. The City official zoning
map should be amended to reflect this zoning change for the site.
DATED this 4°i day of October, 2007
CITY HEARING EXAMINER PRO TEM ii
Ams
Micha: C. Dempsey, WSBA#8235
DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 10.35 of the Spokane Valley Municipal Code (SVMC), the decision of
the Hearing Examiner on a change of conditions application is final and conclusive unless within
twenty-one (21) calendar days from the issuance of the Examiner's decision, a party with standing
files a land use petition in superior court pursuant to chapter 36.70C RCW. Pursuant to chapter
36.70C RCW, the date of issuance of the Hearing Examiner's decision is three (3) days after it is
mailed.
This Decision was mailed by Certified Mail to the Applicant and by first class mail to other
parties of record on October 4, 2007. The date of issuance of the Hearing Examiner's decision is
therefore October 8, 2007, counting to the next business day when the last day for mailing falls on a
weekend or holiday. THE LAST DAY FOR APPEAL OF TIIIS DECISION TO SUPERIOR
COURT BY LAND USE PETITION IS OCTOBER 29, 20071 counting to the next business day
when the last day for mailing falls on a weekend or holiday.
The complete record in this matter, including this decision, is on file during the appeal
period with the Office of the Hearing Examiner, Third Floor, Public Works Building, 1026 West
Broadway Avenue, Spokane, Washington, 99260-0245, (509) 477-7490. The file may be
inspected during normal working hours, listed as Monday- Friday of each week, except holidays,
between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period, the file may be inspected
at the City of Spokane Valley Department of Community Development, Division of Current
Planning, 11707 E. Sprague Avenue, Spokane Valley, WA. Copies of the documents in the
record will be made available at the cost set by City of Spokane Valley Ordinance.
Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation
for property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision ZE-37B-96 Page 9