SDP-01-06 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Shoreline Substantial Development Permit; ) FINDINGS OF FACT,
Applicant: Neighborhood Inc. ) CONCLUSIONS OF LAW,
File No. SDP-01-06 ) AND DECISION
I. SUMMARY OF DECISION
Hearing Matter: Application for a shoreline substantial development permit.
Summary of Decision: Approve application, subject to revised conditions, and deny application
in part.
II. FINDINGS OF FACT
Background Information
1. The application requests approval of a shoreline substantial development permit, for grading
and other site improvements conducted within 200 feet of the ordinary high water mark (OHWM)
of the Spokane River, on approximately 15 acres of a 50-acre development site.
2. The site is located south of and adjacent to the Spokane River, 320 or more feet north of
Empire Way, 400 feet west of Cement Road extended north, and 500 feet east of Butler Road
extended north; in Spokane Valley, Washington.
3. The site is generally situated in the SW '/4 and E 1A of Section 4, Township 25N, Range 44
EWM of Spokane County, Washington. A small portion of parcel no. 45043.0301 is located in
the SE 1/4 of Section 4, Township 25N, Range 44 EWM of Spokane County.
4. The site consists of all or a portion of County Assessor tax parcel nos. 45043.0301,
45043.0724, 45043.1501 through 45043.1526, 45043.1531, 45044.0201, 45044.0206,
45044.0207, 45044.1530, 45044.9019, 45044.9020, 45045.0823, 45045.1527, 45045.1528,
45045.1529 and 45045.9063.
5. The 200-foot shoreline area of the site consists of all or a portion of County Assessor's tax
parcel nos. 45043.0301, 45043.1501 through 45043.1526, 45043.1531, 45044.1530,
45045.0823, 45045.1527, 45045.1528, 45045.1529 and 45045.9063.
6. The applicant for the shoreline permit is Neighborhood Inc., 3201 N. Huetter Road, Coeur
d'Alene, Idaho, 83814.
7. County Assessor records list Neighborhood Inc. as the owner of certain parcels making up
the site; and Coyote Rock LLC, at the same address, as the owner of the remaining parcels
making up the site, with Neighborhood Inc. listed as taxpayer of record for such parcels.
HE Findings, Conclusions and Decision SDP-01-06 Page 1
Boundary Line Adjustment approved for Site
8. In 1908, the final plat of Grandview Acres was recorded for the portion of the site lying
west of Stenger Street extended; and the other land in the area located between the Spokane
River and Trent Avenue (SR-290), from Stenger Street (extended) west to a point lying east of
the site in the Town of Millwood. See final plat map of Grandview Acres.
9. The Grandview Acres plat divided the land located between Empire Way and the Spokane •
River, between Stenger Street(extended) and a line extended northerly between Empire Way and
the river just west of the site, into 25 lots ranging from 1.5 to 3.0 acres in size. Such lots
extended lengthwise between the river and Empire Way. See final plat map of Grandview Acres.
10. A railway located in a 40-foot wide railroad right of way was later extended from east to
west through the area encompassed by the above-referenced 25 lots in Grandview Acres, between
Empire Way and the Spokane River; and also east and west of such area. See County Assessor
map for Section 4.
11. The land lying north of the railroad right of way, between the west boundary of the site and
Stenger Street (extended north to the river), was eventually segregated into a few large acreage
tax parcels; and portions of the road right of ways created by the Grandview Acres plat in such
area were vacated. Such land area is part of the site. See County Assessor map for Section 4,
and County Assessor parcel information in project file.
12. The land lying south of the railroad right of way, between Stenger Street and the west
boundary of the site extended south to Empire Way, was eventually segregated or divided into 46
tax parcels. Single-family homes have been developed on most of the parcels, which lie between
the site and Empire Way. See parcel information in file, and aerial photos of site.
13. The railway was abandoned at some point, and the portion of the railroad road of way
located between Stenger Street extended and the west boundary of the site was acquired by the
current site owners. The former railroad right of way extends along the south boundary of the
portion of the site lying west of Stenger Street extended, and is part of the site.
14. On April 27, 2006, the City Department of Community Development-Planning Division
("City Planning Division"), at the request of the applicant, approved various boundary line
adjustments for the portion of the site lying west of Stenger Street extended north. See letter
dated 2-28-07 from Marina Sukup to Clifford Mort.
15. The boundary line adjustments created 30 newly configured lots along the Spokane River,
and a newly configured 2-acre lot (parcel#45043.1531/Lot 31) and 6.63-acre lot (parcel
#45045.0823) located directly south and upland of such lots; all lying west of Stenger Street
extended north. The lots included the former railroad right of way. See "site plan" dated April of
2006, and County Assessor's map for Section 4 in project file.
HE Findings, Conclusions and Decision SDP-01-06 Page 2
16. The City Planning Division based the boundary line adjustments on the previous division of
such land into lots by the Grandview Acres plat in 1908. See testimony of Micki Harnois.
Mining Reclamation Plan approved for East Portion of Site
17. On October 17, 2000, the State Department of Natural Resources (DNR) approved a
surface mine reclamation permit for the portion of the site lying east of Stenger Street extended,
consisting of 20 acres of land. The permit was issued to DeAtley Company, dba Spokane Rock
Products, for a project to mine up to 250,000 tons of sand and gravel on such acreage over an
estimated 10-year period.
18. The reclamation plan required the mining operation to observe a setback of 200 feet from
the Spokane River; and to reclaim the 20-acre area of the site as it was mined, including re-
vegetation with grasses and legumes within two (2) years of the cessation of mining within any
mine segment. See reclamation plan dated 10-17-00.
Grading Permit, Overall Development Project
19. On June 29, 2006, the applicant applied for a grading permit from the City Department of
Community Development-Building Division, to allow approximately 90% of the site to be graded
for future development.
20. The environmental checklist submitted with the grading permit application described the
overall development project for the site ("project") as grading for and the development of up to
275 housing units on the site. This included cuts and fills of 450,000 cubic yards each on the site,
without importing or exporting any fill to or from the site.
21. The environmental checklist more specifically described the proposed housing as the
development of single-family homes on each of the 30 shoreline lots created by the boundary line
adjustment, a 35-unit condominium project on the 2-acre lot created by the boundary line
adjustment, and approximately 220 condominium/apartment units on the remainder of the site.
22. The sum of the dwelling units described above is 285 dwelling units, which sum is 10 more
dwelling units than the 275 dwelling units stated elsewhere in the checklist.
23. The grading plans found in the project file consist of six(6) plan sheets. Sheets 2-6 were
drawn in March of 2006, and were submitted to the City Building Division on June 22, 2006.
Sheets 3-5 consist of enlarged grading plans for portions of the site, divided from west to east.
Sheet 6 contains erosion control details.
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24. Sheet 2 of the grading plans consists of an overall grading and erosion control plan for the
entire site. Sheet 2 specifies that 455,930 cubic yards of material would be cut on the site and
426,406 cubic yards would be filled on the site, for a net 29,524 cubic yards of material cut from
the site.
HE Findings, Conclusions and Decision SDP-01-06 Page 3
25. The grading plans illustrate the topography of the site before and after grading; and depict
other site improvements, excluding the development of any housing. The meandering, bolded
black line superimposed on the grading plans generally delineates the south boundary of the
portion of the shoreline area of the site lying east of Lockwood Street extended north.
26. Sheet 1 of the grading plans is labeled as an"overall site plan", and was prepared on August
3, 2006. Sheet 1 references eight (8) additional plan sheets apparently prepared at the same time;
and depicting grading, erosion control and road construction plans for the site. Such additional
plan sheets are not contained in the project file.
27. Sheet 1 of the grading plans depicts the same overall project design as Sheets 2-6 of the
grading plans. The grading plans delineate only the westerly 19 of the lots created by the
boundary line adjustment. However, the "site plan" dated April of 2006 shows 31 numbered lots,
which were created by the boundary line adjustments approved on April 27, 2006.
28. The project includes the extension of a private road northerly from Pit Street into and
through the east portion of the site, continuation of the private road westerly through the south
end of the easterly 28 shoreline lots on the site created by the boundary line adjustments, and the
extension of a private driveway west from the road to serve the westerly two (2) lots created by
the boundary line adjustments. The grading plans show the installation of a separated sidewalk
along the north side of the private road on the site, west of Lockwood Street extended.
29. The project also includes the extension of Lockwood Street north through the site to meet
the proposed private road, and widening and improving Lockwood Street. The environmental
checklist indicates that hiking and biking trails will be extended through the site; with an interface
provided between project trails and the nearby Spokane Centennial Trail.
30. The environmental checklist submitted with the grading permit application states that most
of the vegetation on the site would be removed, no grading would occur in the shoreline area of
the east portion of the site or the 100-year floodplain designated on the site, extensive landscaping
would be done by the applicant in all common areas of the project, future builders and
homeowners would install landscaping in residential areas native plants would be favored in
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plantings but not exclusively, and stormwater would be constructed in drywells and discharged
into the ground.
31. The grading plans illustrate the extension of water and/or sewer utilities in the proposed
private road on the site. Spokane County plans to construct a lift station for public sewer in the
northeast corner of the site, south of the short stub road extending off the proposed private road
in such location. Such facility is not part of the applicant's project.
32. Avista Utilities commented that it would request the dedication of a 10-foot wide easement
for electrical utilities along the north side of the proposed private road, to serve the 30 single-
family homes planned for the project. The environmental checklist indicates that the project
would generate approximately 1,960 vehicle trips per day.
HE Findings, Conclusions and Decision SDP-01-06 Page 4
33. The portion of the project located within the 200-foot shoreline area includes grading work,
the development of 30 single-family homes, portions of the proposed private road and connecting
driveway, the installation of a sidewalk, and the installation of public sewer and other utilities in or
adjacent to the private road and driveway.
34. The applicant did not submit any plans showing the construction footprint of the single-
family homes or condominium/multi-family units planned for the site, planned recreational trails,
or any docks or bulkheads that may be planned. The project file indicates that the applicant has
submitted an application for construction of a dock along the shoreline on the site, but no details
were provided regarding such application.
35. On July 28, 2006, the Washington State Department of Fish and Wildlife (WDFW)
submitted an email advising that the river and adjacent riparian area were very sensitive to
disturbance, the grading project was in a sensitive area adjacent to critical habitat, WDFW's
"Priority Habitat and Species guideline" called for a 250-foot buffer to protect the function of the
riparian corridor, and the 50-foot shoreline setback proposed for the grading project was
inadequate to protect critical habitat along the river.
36. WDFW also stated in the email that it recommended a 250-foot riparian buffer for the
project; but since the shoreline area had already been platted into lots too small to accommodate
the recommended 250-foot buffer, a minimum 75-foot setback should be required for the
proposed grading project. WDFW also requested that the applicant submit a habitat management
plan for the grading project, to protect the critical areas designated on the site during construction
and long-term.
37. On August 11, 2006, the City Planning Division issued a Mitigated Determination of
Nonsignificance (MDNS) for the grading and development project described in the environmental
checklist. The MDNS was not appealed.
38. The MDNS required the applicant to observe a 75-foot riparian setback from the OHWM of
the Spokane River in developing the project, and to prepare a habitat management plan for the
riparian corridor on the site in coordination with the WDFW.
39. On September 22, 2006, the City Building Division issued a grading permit or permits for
the site. The grading permit indicated the total value of the grading as $455,930, i.e. $1.00 for
each cubic yard of grading.
Application for Shoreline Permit,Enforcement Issues
40. On September 26, 2006, the City Planning Division, after consultation with the Washington
State Department of Ecology, advised the applicant that a shoreline substantial development
permit would be required for the portion of the grading work proposed within the shoreline area
of the site, and that no grading work could occur within the shoreline area until such permit was
issued.
HE Findings, Conclusions and Decision SDP-01-06 Page 5
41. The applicant initially contended that grading and site improvements to the shoreline area on
the portion of the site lying west of Stenger Road extended was exempt from shoreline substantial
development permit requirement, on the basis that such work was part of the future development
of single-family homes on lots created from the land platted for Grandview Acres in 1908. See
letter from Charles Lempesis dated 10-27-06.
42. The Washington State Department of Ecology and the City Planning Division disagreed
with such contention, and required the applicant to apply for a substantial development permit for
all the work planned within the shoreline.
43. On November 7, 2006, the applicant submitted an application for a shoreline substantial
development permit ("shoreline permit") for the site in the above file, in the form of a Joint
Aquatic Resources Permit Application(JARPA). The application advised that a substantial
portion of the waterfront area on the site consists of existing residential lots platted in 1908.
44. The JARPA application described the proposed shoreline development as grading and
rehabilitation of an industrial site in anticipation of a requested downzone. This included grading
work for the installation of utilities, to allow development of the portion of the site previously
used for industrial uses; the rehabilitation of existing contours; and the removal of waste.
45. The JARPA application stated that the grading work would take place over a 3-month
period commencing in October of 2006; no grading would occur within 75 feet of the OHWM of
the Spokane River; and increased protection of water quality would be provided by removing
wood waste, concrete, asphalt and other materials on the site.
46. On February 14, 2007, the applicant submitted an application to rezone the portion of the
site lying east of Lockwood Street extended north, currently zoned Mining (MZ), to the Urban
Residential-22 (UR-22) zone. The Examiner takes notice that such application is scheduled for
hearing before the Hearing Examiner on July 5, 2007, in File No. REZ-04-07.
47. Most of the grading work authorized by the grading permit was completed in 2006. In
February of 2007, the City Building Division issued a stop work order regarding the project. The
order prohibited the applicant from performing any grading work on the site within the shoreline
area of the site, without first obtaining a shoreline substantial development permit; and also
prohibited the applicant from conducting any development within the 100-year floodplain on the
site.
48. On February 28, 2007, the City Planning Division advised the applicant that a significant
portion of the shoreline area of the site lies within a 100-year floodplain, the applicant had placed
fill within the floodplain at the west edge of the site, and the placement of fill in areas prone to
flooding or with a history of flooding was prohibited by the City Shoreline Program. See letter
dated 2-28-07 from Marina Sukup to Clifford Mort.
49. On March 9, 2007, the applicant submitted a habitat management plan for the site prepared
by Larry Dawes, a consulting wildlife biologist.
HE Findings, Conclusions and Decision SDP-01-06 Page 6
fi Public Hearing on Shoreline Application
50. On April 19, 2007, the Hearing Examiner conducted a public hearing on the shoreline
permit application. The notice requirements for the public hearing were met. The Examiner
conducted site visits on April 18, 2007 and May 28, 2007.
51. At the conclusion of the public hearing, the Hearing Examiner requested that the applicant
and/or the City Planning Division submit copies of the surface mining reclamation permit issued
for the site in 2000, the final plat map for Grandview Acres, and the grading permit issued for the
site by the City in 2006. On May 3, 2007, the City Planning Division provided such items to the
Examiner.
52. The Hearing Examiner heard the application pursuant to Chapter 10.35 of the City
Municipal Code (City Hearing Examiner Ordinance), the City Hearing Examiner Rules of
Procedure, and the City Interim Shoreline Master Program.
53. The following persons testified at the public hearing:
Micki Harnois, Associate Planner Greg McCormick, Planning Manager
Community Development Department Community Development Department
11707 E. Sprague, Suite 101 11707 E. Sprague, Suite 101
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Chuck Lempesis Larry Dawes
Attorney at Law 725 W. Chelan
201 W. 7th Avenue Spokane, WA 99205
Post Falls, ID 83854
Gary Matthews Tim Swope
11827 E. Trent 12120 E. Portland Avenue
Spokane Valley, WA 99206 Spokane, WA 99206
Mike and Sandra Thomas Iry Kinney
3424 N. Lockwood Road 10519 E. Empire
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Don Labelle Kermit Brown
10724 E. Empire 11215 E. Empire
Spokane Valley, WA 99206 Spokane Valley, WA 99206
Cathy Rivera Dan Clark
11836 E. Empire Adams & Clark
Spokane Valley, WA 99206 1720 W. Fourth
Spokane, WA 99204
BE Findings, Conclusions and Decision SDP-01-06 Page 7
Gene Strunk
12902 E. Broadway
Spokane Valley, WA 99206
Items in Record
54. On May 4, 2007, the Examiner requested that the applicant submit a copy of the surface
mining reclamation plan for the site, which was referenced in the surface mining reclamation
permit. The plan was provided to the Examiner on May 7, 2007.
55. The Hearing Examiner takes notice of the Spokane Valley Interim Shoreline Master
Program, Interim Critical Areas Ordinance, Environmental Ordinance, Comprehensive Plan,
Interim Zoning Code, Interim Subdivision Ordinance, and Municipal Code; other applicable
development regulations; and prior land use decisions in the vicinity.
56. The record includes the documents in the project file at the time of the public hearing; the
documents and testimony submitted at the public hearing; the documents provided to the Hearing
Examiner by City Planning and the applicant on May 3, 2007 and May 7, 2007, referenced above;
and the items taken notice of by the Hearing Examiner.
Condition of Site before Grading Project
57. The portion of the site lying east of Lockwood Street extended north, south and east of the
11 shoreline lots on the site located in such area, consists of 28 acres of land. Such acreage was
used for intensive industrial and/or mining operations over the years prior to issuance of the 2000
mining reclamation permit for the east 20 acres of the site. This included operation of a paper
company; and mining of the east 13.5 acres of the site for sand and gravel, in conjunction with a
concrete plant that previously existed on adjacent land to the east.
58. The application submitted for the 2000 surface mine reclamation permit stated that no
topsoil or vegetation remained in the 20-acre area planned for mining (which excluded the
shoreline area). Portions of the east 20 acres of the site may have been mined after the 2000
reclamation permit was approved.
59. The habitat management plan submitted on March 9, 2007 indicates that historical human
disturbance created a series of terraces along the south side of the river in the area. This included
a terrace located near the river that once contained a railroad spur line. The site slopes steeply
down toward the river from the terrace, and slopes steeply upward from the terrace away from
the river.
60. The habitat management plan indicates that mining operations created some terraced areas
in the east 20 acres of the site, in conjunction with removing and stockpiling rock and gravel.
HE Findings, Conclusions and Decision SDP-01-06 Page 8
61. The habitat management plan indicates that an upper terrace area was created in the east
portion of the site in the past, above the terrace located along the river, to accommodate the
paper plant and to serve as a disposal site for huge quantities of wood waste from the paper plant.
62. The habitat management plan indicates that huge quantities of concrete and asphalt waste,
demolition debris, construction debris, and other miscellaneous waste materials were dumped on
the east portion of the site in the past.
63. Large aerial photos of the site in the record, one depicting the west portion of the site and
half of the east portion of the site, and one depicting the east portion of the site, show the
condition of the site prior to the current grading project. The photos illustrate little vegetation on
the portion of the site lying east of Lockwood Street extended, between the north and south pit
roads.
64. The aerial photos show scattered trees and other natural vegetation on the portion of the
site lying between the north pit road and the north boundary of the site, east of the 30th platted lot
on the site; including the portion of such land located within the shoreline area.
65. The aerial photos illustrate a significant number of trees and other natural vegetation on the
shoreline lots on the portion of the site lying east of Lockwood Street extended north, north of
the north pit road; and varying amounts of trees and other natural vegetation on the shoreline lots
located west of Lockwood Street extended north.
66. The large aerial photo depicting the west portion of the site, and half of the east portion,
contains a superimposed line marked in red hi-liter. The line appears to be an attempt to mark the
boundaries of the site on the aerial photo; but does not correctly depict the south boundary of the
site, which lies further to the south, adjacent to neighboring single-family lots.
67. The environmental checklist submitted with the grading permit application states that the e
at the time of the application the site was vegetated with deciduous and evergreen trees, shrubs
and grasses; and with wetland plants along the river.
68. The location of the proposed private road on the grading plans generally follows the
alignment of the existing north and south pit roads in the east portion of the site.
Condition of Site after Grading Project
69. The site is currently vacant and undeveloped, except for single-family homes located on four
(4) upland lots. See parcel nos. 45043.0301, 45043.0724, 45044.0201 and 45044.0206. The
homes, which lie outside the shoreline area, will not be removed for the project.
70. The applicant testified at the public hearing that it had performed a Level I environmental
study of the site before the grading permit was issued for the site. See testimony of Chuck
Lempesis. No evidence was presented that such action is part of a hazardous substance remedial
action at a facility mandated by a court order, which is exempt from compliance with the
HE Findings, Conclusions and Decision SDP-01-06 Page 9
procedures of the State Shoreline Management Act pursuant to RCW 90.58.355 and WAC 173-
27-045.
71. In February of 2007, the applicant advised that it had been working with the City regarding
rehabilitation and development of the site since 2003; and had spent more than $4,000,000 in site
rehabilitation, including working with DNR to implement the surface mine reclamation plan
approved for the site. See letter dated 2-27-07 from Neighborhood Inc. to Marina Sukup.
72. As of March 9, 2007, approximately 99% of the grading illustrated on the grading plans had
been completed. See habitat management plan.
73. During grading operations, concrete and woody materials located in waste piles on the east
portion of the site were separated out, processed and reused as much as possible; and the
remainder of the waste on the site was hauled away. See habitat management plan dated 3-9-07.
Three (3) small buildings previously located on the east portion of the site, associated with
mining, were also removed during grading operations.
74. Prior to grading the site, the applicant installed a 6-foot high, concrete block wall along the
south property line of the portion of the site lying west of Stenger Street extended, above the
vacated railroad bed. The applicant graded the area of the site below and north of the vacated.
railroad bed; for the proposed roadway and driveway, the installation of utilities, and future
housing.
75. Prior to grading the site,the applicant installed a silt fence along the north edge of the
second terrace on the site, to contain grading and remediation work. The silt fence was installed
conservatively outside the 75-foot setback and 100-year floodplain on the site. See habitat
management plan.
76. The habitat management prepared by Larry Dawes indicates that the OHWM of the river in
the vicinity had not been formally delineated, the actual OHWM is likely lower than assumed for
the placement of the silt fence on the site for the grading project, and Dawes planned to formally
delineate the OHWM to allow more precise measurement of the 75-foot setback for the project.
77. The habitat management plan advised that it would determine whether any grading or
remediation work was done by the applicant inside the 75-foot setback; and indicated that any
areas inside the setback area impacted by grading or site remediation would be replanted with
native vegetation(trees, shrub and grasses) or mitigated as appropriate, and weed control would
be provided.
78. The site, as graded, slopes down steeply from the south property line to the planned location
of the private road and driveway, west of Lockwood Street extended north; slopes down
relatively steeply to the planned location of the private road in the east end of the site, along the
east and south property lines; and has some steep slopes in the west end. The remainder of the
site, south of the silt fence installed outside the 75-foot grading setback, is relatively flat in
topography, and overall has a gentle upward slope to the south.
HE Findings, Conclusions and Decision SDP-01-06 Page 10
79. The area below the silt fence on the site slopes steeply down to the lower terrace area lying
near the portion of the site located along the river. The site slopes steeply downward from the
lower terrace toward the river.
80. The grading project removed virtually all the vegetation on the site, except within the 75-
foot buffer required by the MDNS issued for the site. See photos in Exhibit#16. The applicant
planted some shrubs, trees and other vegetation on the slopes located along the south and east
boundaries of the site.
81. The grading project encroached into a small portion of the 75-foot buffer area marked by
the silt fence, in the area of the shoreline lots located east of Lockwood Street. See letter dated
4-13-07 from Washington State Department of Fish and Wildlife (WDFW).
Grading Volumes in Shoreline Area of Site
82. The JARPA application does not quantify the portion of the 450,000 cubic yards of soil
transfer for the grading project that would occur within the shoreline area, or the cost of the work
to be performed in the shoreline. The application stated that the cost of the grading phase of site
development would be $1,200,000.
83. Approximately 90% of the shoreline area of the site, consisting of 13.5 acres, is made up of
the 30 lots located along the river west of Stenger Street extended. The south 125 feet of the
200-foot shoreline area on each such lot, or 62.5%, approximately, was graded pursuant to the
grading permit; for a total of approximately 8.4 acres that were graded.
84. The remaining 10% of the shoreline area, consisting of approximately 1.5 acres lying south
and east of the 30 shoreline lots on the site, lies landward of the 75-foot grading setback, and was
graded.
85. The total shoreline area graded on the site is approximately 10 acres; which represents
approximately 20% of the site. The amount of shoreline acreage graded may be slighter smaller if
the OHWM of the river is located lower than was assumed when the silt fence was installed on
the site to mark the 75-foot grading setback. The applicant also indicated that the silt fence was
actually placed 85-120 feet from the assumed OHWM in various places. See letter dated 2-27-07
from Neighborhood Inc.
86. The typical shoreline lot on the site is rectangular in shape, 90 feet wide and at least 200 feet
deep. Assuming 125 feet of the 200-foot shoreline area on the typical lot were graded, 11,250
square feet of grading (equal to 1,250 square yards, or .26 acres) occurred within the shoreline
area on the typical lot. If the typical lot was graded to a depth of only one (1) foot, a
conservative estimate, over 400 cubic yards of grading would have occurred on the typical lot.
87. If the 50-acre site was graded uniformly(which cannot be assumed), approximately 90,000
cubic yard of the 450,000 cubic yards involved in the grading project would have occurred on the
HE Findings, Conclusions and Decision SDP-01-06 Page 11
10 total acres in the shoreline area that were graded; or 9,000 cubic yards of grading per acre
within the shoreline area.
88. If it is assumed, for comparison purposes, that the shoreline area of the site was graded at an
average of 9,000 cubic yards per acre, as calculated above, and considering that .26 acres of the
typical shoreline lot on the site was graded, 2,000 or more cubic yards of grading may have
occurred on each shoreline lot.
Land Use Designations for Site and Area, Surrounding Conditions
89. The City of Spokane Valley was incorporated effective March 31, 2003. At the time of
incorporation, the City adopted by reference the County's Zoning Code, Critical Areas Ordinance,
Subdivision Ordinance, Shoreline Master Program, and other development regulations. The City
adopted a new Comprehensive Plan effective May 10, 2006.
90. The site and neighboring land are designated in the Mixed Use category of the City
Comprehensive Plan; except for the land located directly north and east of the site along the south
side of the river, which is designated in the Public/Quasi-Public category.
91. The Town of Millwood is located 500 feet west of the site, west of Butler Road, in the area.
The land lying north of the Spokane River in the NE 1/4 of Section 4, north of the east portion of
the site, is located in unincorporated Spokane County, and outside the County Urban Growth
Area.
92. The west portion of the site, lying west of Lockwood Street extended north, is zoned Urban
Residential-3.5 (UR-3.5). The remainder of the site, and neighboring land located to the north
and northeast, is zoned Mining (MZ). The land located along the north side of Empire Way in the
vicinity, lying generally west of Pit Street, is zoned UR-3.5 and developed with single-family
homes on various sized parcels.
93. The land lying directly north and east of the site, along the south side of the Spokane River,
consists of City parkland. A bridge for the Spokane Centennial Trail, a regional public trail
system, crosses the river north of the east portion of the site. The Centennial Trail extends east
from the bridge along the south side of the river, through City parkland, north and east of the site.
94. The Centennial Trail also extends west from the bridge along the north side of the river,
through State parkland, and includes a trailhead and parking area east of the bridge. See County
Assessor parcel information in project file, and Staff Report.
95. The land located between Empire Way and Trent Road(SR-290) in the vicinity consists of a
mixture of single-family homes on parcels zoned UR-3.5; and industrial and commercial uses on
land zoned Community Business (B-2), Regional Business (B-3) or Light Industrial(I-2). The
land lying east and southeast of the site, north of Empire Way, generally consists of industrial or
mining uses on land zoned I-2 or Heavy Industrial(I-3).
HE Findings, Conclusions and Decision SDP-01-06 Page 12
96. The City Arterial Street Plan designates Empire Way and Cement Road in the area as
Collector Arterials. Lockwood Street terminates at the south boundary of the site. Trent Road
(SR-290) is a multi-lane state highway, and Pines Road(SR-27) to the south is a state highway.
Pines Road(SR-27) lies directly across Trent Road from Cement Road
Relationship between City Shoreline Master Program and City Critical Areas Ordinance
97. The City adopted the Spokane County Shoreline Master Program by reference effective
March 31, 2003, as the City Interim Shoreline Master Program("City Shoreline Program"). See
City Ordinance No. 03-59. The County Shoreline Master Program took effect on January 15,
1975.
98. The City adopted the County's Critical Areas Ordinance and associated maps by reference
effective March 31, 2003, as the City Interim Critical Areas Ordinance and critical areas maps.
See City Ordinance No. 03-49 and 03-50. The County Critical Areas Ordinance took effect on
August 1, 1996.
99. On May 7, 2002, the Board of County Commissioners adopted County Resolution No. 2-
0471; which amended paragraph 8.2.2 on page 4-15 of the County Shoreline Master Program.
As amended, such provision requires that buildings on land designated in the Rural or Urban
Areas, constructed in areas of 20% or greater slope, or slide prone areas, conform to the geo-
hazard provisions of the County Critical Areas Ordinance. The Examiner takes notice that the
State Department of Ecology later adopted this change to the County Shoreline Master Program,
but the Examiner is unaware of whether such adoption preceded the City's adoption of the
County's shoreline program effective March 31, 2003.
100. The City Interim Critical Areas Ordinance ("CAO") requires the performance standards and
other requirements set forth in the ordinance to be applied to development regulated by the
ordinance during any permit or approval process otherwise required for such development by
other City development regulations. This includes applications for shoreline substantial
development permits.
101. The CAO authorizes the approval with conditions, or denial of the application for such
permit or approval, to enforce compliance with the requirements of the CAO. Uses and activities
for which no permit or approval is required by other development regulations also remain subject
to the requirements of the CAO. See paragraph 11.20.030.B of CAO.
102. The County did not amend the County Shoreline Master Program to incorporate the
protection of critical areas located in the shoreline area provided for by the County Critical Areas
Ordinance, prior to the City's adoption of the County's shoreline master program by reference
effective March 31, 2003; other than the possible change to paragraph 8.22 on page 4-15 of the
program. See City Comprehensive Plan, Chapter 8, p. 6.
103. The City has not yet amended the City Shoreline Program to incorporate the protection of
•
critical areas in the shoreline area provided by the City Critical Areas Ordinance. The new City
BE Findings, Conclusions and Decision SDP-01-06 Page 13
Comprehensive Plan adopted the policies of the City Shoreline Policies as the goals and policies
for shorelines, as required by the State Growth Management Act. See RCW 36.70A.480.
Shoreline and Critical Areas Designations for Site and Neighboring Land
104. The City Shoreline Program, on page 4-2, designates the Spokane River in the area as a
"shoreline of statewide significance". The City shoreline map designates the shoreline area on the
site, and neighboring land located along the south side of the river, in the Pastoral Area.
105. The City Shoreline Program provides that land designated by the City shoreline map in
shoreline areas other than Rural or Urban, which land was platted before December of 1974, is
considered to be designated in the Rural Area. See paragraph 3.2(1) on page 4-5 of the City
Shoreline Program.
106. Based on the above authority, the shoreline area of the site lying west of Stenger Street
extended north, which area was platted as part of Grandview Acres in 1908, is considered to be
designated in the Rural Area of the City Shoreline Program. The portion of the site lying east of
Stenger Street extended, which lies outside the Grandview Acres plat, is designated in the
Pastoral Area.
107. City Critical Areas maps designate the Spokane River as a DNR Type I stream. The CAO
imposes a 250-foot wide riparian buffer for a DNR Type I stream.
108. City Critical Areas maps designate a narrow band of Urban Natural Open Space (UNOS)
priority wildlife habitat, appearing to range from approximately 50-100 feet wide, along the north
boundary of the site lying adjacent to the river, between the west boundary of the site and a point
lying approximately 500 feet east of Lockwood Street extended north. Such habitat widens
gradually along the river east of such point, on or north of the site, to a width of approximately
200 feet. See City Fish and Wildlife Conservation map.
109. City Critical Areas ma p s designate a generally wider band of UNOS priority wildlife habitat
along the north side of the river in the vicinity, and designate a relatively large area of Cliffs/Bluffs
priority wildlife habitat north of and adjacent to such UNOS habitat.
110. City floodplain maps designate a relatively narrow band of land adjacent to the river, in the
shoreline area of the site, in a 100 year floodplain.
Concerns expressed by Neighboring Property Owners
111. Neighboring homeowners expressed concerns or opposition regarding the project; based on
loss of views of the shoreline and wildlife due to the installation of a concrete wall along the south
boundary of the site and the planned installation of pine trees on the hillside below, lack of
environmental study of the dump sites on the east portion of the site, traffic impacts on Empire
Way and to the Spokane River, objections to the proposed rezoning of the portion of the site
zoned MZ, the creation of new lots along the shoreline without subdivision approval, impacts on
wildlife, erosion from grading along the hillsides on the site, road construction impacts, increased
HE Findings, Conclusions and Decision SDP-01-06 Page 14
• taxes, pollution from on-site sewage systems if installed on the site, impacts on narrow streets,
agitation of toxic soil on the site associated with the former railway on the site, grading and
development of the site prior to issuance of a shoreline permit, development of homes on the
steep slopes in the west portion of the site, the difficulty of establishing new native vegetation
without irrigation in impacted areas located within the 75-foot riparian buffer required by the
MDNS issued for the project, and failure of the project to comply with the 250-foot riparian
buffer required by the City Critical Areas Ordinance for the Spokane River.
Concerns expressed by Public Agencies and Spokane Tribe
112. On July 12, 2006, the Spokane Tribe of Indians submitted comments in response to the
grading permit application and associated environmental checklist. Such comments recommended
that the applicant conduct an archaeological survey and subsurface testing at all proposed
construction and staging areas; but did not specify whether any cultural resources or
archaeological artifacts existed on the site or in the area.
113. On August 18, 2006, the Spokane Tribe submitted comments advising that six(6) known
archaeological sites of historical and cultural importance to the tribe were located in the area of
the site; and repeated its request for an archaeological survey and subsurface testing for the
project.
114. On February 27, 2007 and April 8, 2007, the State Department of Archaeology&Historic
Preservation submitted letters responding to the shoreline permit application; which advised that
numerous cultural resources, several archaeological sites and a traditional cultural property
important to the Spokane Tribe exist in Section 4, Township 25N, Range 44 EWM of Spokane
County, the section in which the site is located.
115. The letters from the State Department of Archaeology& Historic Preservation warned that
the scale of the project would destroy any cultural or archaeological resources located on the site;
and a professional archaeological survey of the site was necessary prior to ground disturbing
activities.
Zoning Regulations pertinent to Project
116. The UR-3.5 zone, which applies to the portion of the site lying west of Lockwood Street
extended, is intended to promote areas of primarily single-family residences in an urbanized
neighborhood setting. The UR-3.5 zone permits single-family homes, duplexes and certain other
uses.
117. The UR-3.5 zone permits a maximum residential density of 4.35 dwelling units per acres.
The minimum frontage for a single-family dwelling in the UR-3.5 zone is 80 feet, and the
minimum lot size is 10,000 square feet.
118. The MZ zone, which applies to the portion of the site lying east of Lockwood Street
extended, allows for the quarrying, blasting, reduction, processing and mining of minerals or
HE Findings, Conclusions and Decision SDP-01-06 Page 15
materials. The MZ zone prohibits all residential uses, other than a caretaker residence for mining
operations. The minimum lot area in the MZ zone is five (5) acres.
119. The UR-22 zone, which is proposed for the portion of the site currently zoned MZ, permits
a wide variety of residential uses at housing densities not exceeding 22 dwelling units per acre;
including condominiums and other multi-family dwellings, and duplexes and single-family
dwellings on comparatively small lots and narrow road frontages. The minimum lot area for a
multifamily dwelling in the UR-22 zone is 6,000 square feet.
City Shoreline Regulations pertinent to Project
120. The Staff Report sets forth certain policies and use regulations of the City Shoreline
Program applicable to the portion of the project proposed in the shoreline area. This omits a
number of use regulations and policies of the City Shoreline Program that potentially apply to the
shoreline application and the future housing planned for the site.
121. The City Shoreline Program allows new residential subdivisions in the Pastoral Area;
provided the portion of the subdivision located within the shoreline area is dedicated to its
existing state or recreational purposes consistent with other applicable regulations and the policies
and regulations of the City Shoreline Program, and no residential structures are developed in the
shoreline area.
122. The City Shoreline Program also permits the construction of a single-family residence not
exceeding a height of 35 feet on an existing lot, by the owner or lessee of the residence for such
person's own use, in the Pastoral Area; provided the residential structure is set back at least 50
feet from the OHWM. The City Shoreline Program otherwise prohibits all other residential
development in the Pastoral Area.
123. The City Shoreline Program permits residential development in the Rural Area; subject to
various restrictions, including restrictions on construction within areas of 20% or greater slope or
slide prone areas, and not constructing buildings in flood hazardous areas. Such restrictions also
include preservation of the aesthetics and natural characteristics of the area, including scenic
views within the shoreline area, and soils and vegetation.
124. The City Shoreline Program prohibits new roads, both public and private, in the Pastoral
Area; except, in pertinent part, for access to activities allowed within the shoreline area, or where
routing through the shoreline area is demonstrated to be a more desirable choice than routing the
road through an adjacent land area.
125. The City Shoreline Program permits new roads as a use in the Rural Area without any
special restrictions, other than compliance with other relevant provisions of the City Shoreline
Program. Policy 1 on page 3-11 of the City Shoreline Program, relating to roads, states that
existing public access to public areas and uses of the shoreline shall not be reduced or eliminated.
HE Findings, Conclusions and Decision SDP-01-06 Page 16
126. The City Shoreline Program generally permits public sewer lines, water lines, and other
utilities that do not meet the definition of"transmission main" in paragraph 9.1.1 on page 4.15 of
3 the City Shoreline Program, to serve allowed activities located within the shoreline area, or
installed within public and private rights of way and easements; subject to routes being selected
that do not unnecessarily cut clear corridors through wooded areas. This applies to all shoreline
areas.
127. The City Shoreline Program prohibits logging activities in the Pastoral Area, with certain
exceptions for damaged or diseased timber. The City Shoreline Program prohibits the clear-
cutting of timber in the Rural Area; and permits selective cutting of timber in the Rural Area with
certain restrictions on the cutting of merchantable timber within 100 feet of the OHWM, shoreline
areas.
128. The City Shoreline Program imposes a number of restrictions on harvesting timber, and the
clearing of land for building or road construction, in the Rural Area. This includes reforestation
where practicable, protection of the natural resources of the area, protection of water quality and
fish and wildlife habitat, seeding of scarred areas to prevent erosion, maintaining the scenic quality
of area, and maintenance of a 50-foot or greater buffer strip of natural vegetation along the
waterfront to prevent erosion and protect water quality and fish habitat.
129. The City Shoreline Program defines "landfill" as "...the extension of dry land into the
shoreline area or water by the deposit of sand, soil, gravel, rock or other materials." See policy
° 15 on page 3-13 of City Shoreline Program.
130. The City Shoreline Program prohibits landfill, as defined above, in the Pastoral Area, except
where associated with permitted bulkheads; and permits landfill in the Rural Area only where
justified by an overriding public interest. The City Shoreline prohibits landfill in areas prone to
flooding or with a history of flooding, in both the Pastoral and Rural Areas.
131. The general use regulations of the City Shoreline Program limit the use of the shoreline area
for recreation to recreational activities that are dependent on or enhanced by the shoreline
environment; such as fishing, boating, swimming and recreational trails. Such regulations state
that access to and along the waterfront shall be provided for pedestrians and bicycles, where
appropriate, and where the biophysical capabilities of the shoreline area allow such use.
132. The use regulations and policies of the City Shoreline Program for recreation require the
preservation and enhancement of scenic views of the water and from the water, the natural
features of the land and its vegetation, and the quality of the water for recreational use and natural
habitat.
133. Use regulation 14.1.3 on page 4-23 of the City Shoreline Program, applicable to all
shoreline areas, requires that access to and along the waterfront be provided for pedestrians and
bicycles, where appropriate and where the biophysical capabilities allow such uses.
HE Findings, Conclusions and Decision SDP-01-06 Page 17
134. The policies of the City Shoreline Program state that only passive recreational uses are
permitted in the Pastoral Area; priority should be given in the Rural Area to use activities that
incorporate or provide public recreation and public access along shorelines and within shoreline
areas; and that parking and automobile traffic associated with recreational uses in the Rural Area
should be minimized in the shoreline area.
135. The City Shoreline Program prohibits development that would destroy the scientific or
educational uses of significant archaeological, cultural, or historical sites, buildings, artifacts or
other identified phenomena in the shoreline area; and requires that developments in such sites be
designed to preserve the natural environment and visual quality of its surroundings.
136. The City Shoreline Program prohibits docks in the Pastoral Area, except for the
construction of a dock designed for pleasure craft only, for the private noncommercial use of the
owner or lessee of a single-family home.
137. The City Shoreline Program permits docks in the Rural Area for recreational, educational or
other public purposes in the Rural Area, with shared or community docks being preferred over
individual docks for the sole use of a property owner. Any docks constructed are subject to the
approval of federal and state laws relating to navigation and effects on fish habitat.
138. The City Shoreline Program permits protective bulkheads in shoreline areas, subject to
various restrictions; with the restrictions on bulkheads in the Pastoral Area being stricter than
those for the Rural Areas.
139. The general use regulations of the City Shoreline Program, set forth on pages 4-7 and 4-8 of
the City Shoreline Program, require that ground cover in areas of 5% or greater slope in the
shoreline area be retained or replaced with similar vegetation to prevent erosion.
140. The general use regulations set forth on pages 4-7 and 4-8 of the City Shoreline Program
require that every consideration be given to protecting and enhancing views of the water and from
the water, within the shoreline area; in planning, constructing and maintaining development.
141. The general use regulations of the City Shoreline Program generally prohibit structures in
the shoreline area from exceeding two (2) stories or 35 feet in height; or erecting any structure
within 50 feet of the OHWM.
Pertinent provisions of City Critical Areas Ordinance
142. The City Critical Areas Ordinance (CAO) requires the City Planning Division to consult
with the Washington State Department of Fish and Wildlife (WDFW) when a development is
proposed on land designated in a priority wildlife habitat, to determine whether the development
will have a significant adverse impact on the habitat, and a habitat management plan should be
prepared.
HE Findings, Conclusions and Decision SDP-01-06 Page 18
143. The CAO requires riparian buffer areas designated for DNR Type streams to be retained in
their natural condition, with certain exceptions; and prohibits the removal of riparian vegetation
except in the case of fire or disease, unless there are no alternatives. This expressly includes the •
250-foot riparian buffer required by the ordinance adjacent to the Spokane River, a DNR Type 1
stream.
144. The CAO provides that roads within riparian buffer areas shall be kept to a minimum, and
shall not run parallel to the water body; and that if no alternative exists to placement of a roadway
within a riparian area, mitigation may be required, with the mitigating measures to be specified in
a management plan. Such mitigating measures may include the fencing of the riparian area to
protect remaining vegetation, and the enhancement of the remaining buffer area through the
planting of native vegetation.
145. The CAO authorizes equestrian, pedestrian and bike trails in riparian buffer areas, but
indicates that such trails should be set back at least 50 feet from the OHWM, if possible, and be a
maximum of 14 feet in width.
146. The City Planning Division may reduce buffer widths by up to 25%, in pertinent part, if the
riparian buffer is enhanced using native plants, including trees and shrubs; according to a plan
prepared in consultation with the County Soil Conservation Service and the Washington State
Department of Fish and Wildlife.
147. The CAO authorizes lots or parcels with water frontage on a DNR Type 2 or 3 stream to
clear one (1) view/access corridor to the OHWM of riparian vegetation, as long as such corridor
does not exceed 25 feet. This exception does not apply to the Spokane River adjacent to or north
of the site, which is designated as a DNR Type 1 stream.
148. The grading permit issued for the project, and the Staff Report prepared by the City
Planning Division for the current application, do not address the riparian performance standards
of the CAO applicable to development proposed within the 250-foot riparian buffer on the site
associated with the Spokane River, as a DNR Type 1 stream.
149. The Staff Report does not reference the LINOS priority wildlife habitat designated on the
site, or draw a distinction between the mitigation needed to protect such habitat under the CAO
and the separate riparian habitat performance standards of the CAO applicable to the 250-foot
riparian buffer associated with the Spokane River.
Comments on Habitat Management Plan
150. The WDFW and the Washington State Department of Ecology(WDOE) submitted
comments on the habitat management plan and the project on April 13, 2007 and April 16, 2007.
Such comments contained specifications for the 75-foot grading setback, addressed rehabilitation
of the portion of the setback encroached upon by the grading project, and expressed concern over
the installation of docks and access paths for lots located along the river. WDOE stated that only
HE Findings, Conclusions and Decision SDP-01-06 Page 19
minimal low impact docks and access ways would be allowed. Also see letter dated 8-16-06 from
WDFW and letter dated 8-24-06 from WDOE.
151. The habitat management plan submitted by Larry Dawes on behalf of the applicant provides
that if impacts occur within the 75-foot grading setback from the OHWM, Dawes would
formulate a mitigation plan for such encroachment; including re-vegetation with native trees,
shrubs and grasses. Dawes indicated at the public hearing that grass seeding would need to be
installed promptly in the area where the setback was encroached upon to deter noxious weeds.
152. The applicant indicated at the public hearing that it would not be feasible to install a large,
permanent-type irrigation system, as recommended by a neighboring property owner(Gary
Mathews), to enhance the planting of native vegetation within the 75-foot setback area; but
advised that an irrigation system would be installed on the site where practical.
153. The applicant indicated at the public hearing that the 75-foot setback had been marked
conservatively on the site, and further measurements of the OHWM of the river would likely
allow the setback to be moved closer to the river in some areas.
154. The Staff Report incorporated the 75-foot setback, the habitat management plan, and the
comments by the WDFW and WDOE thereon, as conditions of approval for the substantial
development permit.
HI. CONCLUSIONS OF LAW
1. The Hearing Examiner is authorized to hear and decide the application for a shoreline
substantial development permit. See Sections 10.35.070(G) and 10.35.110(4) of the City
Municipal Code, paragraph 8.06 on page 4-29 of the City Shoreline Master Program, Section 3 of
City Ordinance No. 03-59, and RCW 36.70.970(2).
2. The State Shoreline Management Act (chapter 90.58 RCW) prohibits a"substantial
development" from being undertaken on the shorelines of the state without first obtaining a
substantial development permit from the pertinent local jurisdiction. See RCW 90.58.140(2),and
paragraph 2.1 on page 4-1 of City Shoreline Program.
3. A shoreline substantial development permit may only be granted if the development is
consistent with the policies and procedures set forth in the Shoreline Management Act, the
provisions of chapter 173-27 WAC, and the provisions of the local shoreline master program
See WAC 173-27-150, RCW 90.58.140(3), and page 4-1 of City Shoreline Program.
4. Development within the shoreline that does not require a shoreline permit must also comply
with the policies of the Shoreline Management Act, applicable provisions of chapter 173-27
WAC, and the regulations of the local master program. This may include the need to apply for
and obtain a shoreline variance or conditional use permit.
HE Findings, Conclusions and Decision SDP-01-06 Page 20
5. WAC 173-27-150 authorizes local governments to attach conditions to the approval of a
shoreline substantial development permit to assure consistency with the State Shoreline
Management Act and the local master program.
6. WAC 173-27-180 sets forth application requirements for a shoreline substantial permit,
including the submittal of a detailed site development plan, delineation of the shoreline areas that
will be altered or used as part of the development, and the OHWM of the shoreline body
involved.
7. The current application for a shoreline substantial development permit is subject to the
requirements of the State Environmental Policy Act and the City's Local Environmental Policy
Act.
8. The City Planning Division properly relied on the environmental checklist and MDNS that
was issued in conjunction with the grading permit, in evaluating the environmental impacts of the
application and not requiring a separate SEPA threshold determination for the application.
9. The City Interim Subdivision Ordinance ("Subdivision Ordinance") does not regulate a
"...division of land made for the purpose of alteration by adjusting boundary lines, between
platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or
division nor create any lot, tract, parcel, site or division that contains insufficient area and
dimension to meet minimum requirements for width and area for a building site." See Section
12.100.110(1)(d) of City Subdivision Ordinance.
10. The Subdivision Ordinance requires application for and the issuance of a certificate of
exemption from the City Planning Division for the approval of a boundary line adjustment under
Section 12.100.110(1)(d) of such ordinance. Section 12.100.126 of the Subdivision Ordinance
authorizes the appeal of an administrative determination under such ordinance to the Hearing
Examiner.
11. It is unclear from the record how the boundary line adjustment process could create 32
newly configured lots on the site, west of Stenger Street extended north; when the 25 lots platted
in Grandview Acres in such area had already been divided into 46 parcels lying between the
vacated railroad right of way and Empire Way; the vacated railroad right of way(used to create
the 32 new lots); and a few large acreage parcels lying between the former railroad right of way
and the river (used to create the 32 new lots).
{ 12. Most of the 46 parcels created between Empire Way and the former railroad right of way
have been built on as lots of record, which arguably eliminated the status of the original 25 lots in
the plat of Grandview Acres as separate lots. Moreover, 32 lots have been created in the area of
the site where portions of 25 lots existed in the Grandview Acres plat. A boundary line
adjustment cannot create additional lots.
13. The Hearing Examiner has no authority to modify the boundary line adjustments approved
for the site, whether appropriate or not, since they represent prior administrative determinations
HE Findings, Conclusions and Decision SDP-01-06 Page 21
issued by the City Planning Division that were not appealed to superior court. See Chelan
County v. Nykriem, 146 Wn.2d 904 (2002), which case is directly on point. Accordingly, the
Examiner must recognize the lots configured by the boundary line adjustments as legal divisions
of land.
14. The 32 lots created by the boundary line adjustments do not have the status of lots in a final
plat created under the modern platting provisions set forth in chapter 58.17 RCW; which chapter
authorizes a final plat to be developed under the zoning and other development regulations in
place at the time of final plat approval under chapter 58.17 RCW, for a period of five (5) years
thereafter. See RCW 58.17.170.
15. The 32 lots on the site created by the boundary line adjustments have the status of lots in the
Grandview Acres plat created in 1908; and are subject to development under the provisions of the
City Shoreline Program, the City Critical Areas Ordinance, the City Interim Zoning Code ("City
Zoning Code"), the City Local SEPA Ordinance and other current development regulations.
16. The portion of the site zoned MZ, located east of Lockwood Street extended, cannot
currently be developed for single-family homes or condominium/apartment units as planned by the
applicant, because the MZ zone does not permit such residential development. This is also true
for the lots planned for single-family homes on the site that are zoned MZ, even if they are
regarded as nonconforming lots as to area in the MZ zone. See Section 14.508.020 of City
Zoning Code.
17. •RCW 36.70A.480, as amended effective July 27, 2003, requires local shoreline master
programs to provide a level of protection to critical areas within shorelines at least equal to the
level of protection provided for by the local government's critical areas ordinance.
18. Pursuant to RCW 36.70A.480 once
a local government has updated its master program to
protect critical areas, as required by RCW 36.70A.480 and with the approval of the State
Department of Ecology, the protection of critical areas within shorelines of the state may only be
accomplished through the updated local master program; unless the master program does not
include the land necessary for buffers for critical areas designated within the shoreline, in which
case the local government's critical areas ordinance continues to regulate the critical areas and
their required buffers in and outside the shoreline area. See RCW 36.70A.480.
19. The WDFW, in its written comments, appears to have confused the requirement for a
habitat management plan for the LINOS priority wildlife habitat designated on the site, under the
City Critical Areas Ordinance (CAO), with the riparian habitat performance standards of the City
Critical Areas Ordinance applicable to the 250-foot riparian buffer established for the Spokane
River, as a DNR Type 1 stream.
20. Under the CAO, the City Planning Division is responsible for enforcing and interpreting the
riparian habitat performance standards of the CAO within the 250-foot riparian buffer required
adjacent to the river on the site, not the WDFW or WDOE.
HE Findings, Conclusions and Decision SDP-01-06 Page 22
21. The single-family homes planned by the applicant on the 30 shoreline lots on the site would
all be located within the 250-foot riparian buffer required by the CAO. Such planned
development does not fall within any of the exceptions provided by the ordinance to the
requirement that riparian buffer areas be retained in their natural state. The applicant may be able
to obtain a reasonable use exception from the City Planning Division to develop such homes,
pursuant to paragraph 11.20.040.B of the CAO.
22. Small portions of the parcels planned for the development of apartments and condominiums
for the project, on both sides of the planned private road, are located within the 250-foot riparian
buffer. Such planned development, which is contingent on the approval of a rezone of the portion
of the site zoned MZ to the UR-22 zone, is prohibited by the CAO to the extent it falls within the
riparian buffer.
23. The private driveway, the sidewalk along a portion of the private road, significant portions
of the private road in the portion of the site lying west of Stenger Street extended, and portions of
the private road located east of Stenger Street planned for the site are all located within the 250-
foot riparian buffer.
24. The private driveway, the sidewalk, and the extension of utilities in or adjacent to the private
road can logically be considered part of the road for the purpose of applying the riparian habitat
performance standards in the CAO.
25. The proposed private road and driveway generally run parallel to the river, which is
prohibited by the CAO unless no alternative exists. If no alternative exists, mitigation measures
specified in a mitigation plan may be required.
26. The private road and driveway appear to be the minimum access necessary to provide access
to the shoreline lots planned for single-family homes in the area of the site lying west of Stenger
Street extended north, if such lots can be developed; and appear to be located as far from the river
as possible.
27. Significant segments of the northerly private road planned east of Stenger Street (extended
north) on the site lie within the 250-foot riparian buffer. Placement of the private road within the
riparian buffer in this location is not essential to developing such portion of the site for residential
purposes if it is rezoned to the UR-22 zone; considering the relative width of the site east of
Stenger Street extended.
28. The applicant indicated at the public hearing that it may apply for a 25% buffer reduction, or
the approval of buffer width averaging under the CAO from the City Planning Division, to allow
location of the private road within the 250-foot riparian buffer east of Stenger Street extended.
Such approval would leave only a small portion of the private road would remain in a reduced
riparian buffer area of 187.5 feet (i.e. 75% of 200 feet).
29. The approval of a buffer reduction under the CAO would require the applicant to enhance
the reduced riparian buffer by using native plants and shrubs, according to a mitigation plan
HE Findings, Conclusions and Decision SDP-01-06 Page 23
prepared in consultation with the County Soil Conservation District and the WDFW. Such
reduced buffer appears to have merit, considering that the private road planned in this area
follows the route of the north pit road that previously served mining and industrial operations on
the site.
30. The conditions of approval recommended by WDFW and WDOE, which require a 75-foot
"shoreline setback" for the project, and compliance with the habitat management plan prepared by
Larry Dawes, adequately mitigate the impacts of the project on the Urban Natural Open Space
priority wildlife habitat designated along or near the river on the site.
31. The portion of the private road planned east of Lockwood Street extended generally follows
the alignment of the former pit roads on such portion of the site. Mitigation should be required to
restore the native vegetation in the portion of the 250-foot buffer located north of the private road
planned in such area, east of the shoreline lots planned for single-family homes.
32. The definition of"development" in the State Shorelines Management Act and the City
Shoreline Program includes a use consisting of the construction or exterior alteration of
structures; filling; removing any sand, gravel of minerals; bulk-heading; and any project that
interferes with the normal public use of the surface of the waters of a shoreline. See RCW
90.58.030, WAC 173-27-030 and the City Shoreline Program
33. The above definition of"development" does not include the rezoning of property located
within the shoreline. See Narrowsview Preservation Ass'n v. City of Tacoma, 84 Wn. 2d 416
(1974), overruled on other grounds,Norway Hill Preservation &Protective Ass'n v. King County
Council, 87 Wn.2d 267 (1976). Accordingly, the proposed rezoning of the shoreline portion of
the site currently zoned MZ is not subject to regulation under the City Shoreline Master Program.
34. The definition of"substantial development" in the State Shorelines Management Act means
any development of which the total cost or fair market value exceeds $5,000; as well as any
development that materially interferes with the public use of the water or shorelines of the state.
35. The above definition of"substantial development" excludes, in pertinent part, the
construction of a single-family residence, not exceeding a height of 35 feet, by the owner or lessee
of the residence for their own use; the construction of the normal bulkhead common to single-
family residences; and the construction of a dock in freshwater, at a value not exceeding $10,000,
designed for pleasure craft for the private noncommercial use of the owner or lessee of a single-
family or multi-family residence. See RCW 90.58.030(3), WAC 173-27-030(7), WAC 173-27-
040(2), and City Shoreline Program.
36. The installation of grading for the purpose of public roadways and utilities within the
shoreline is not exempt from the definition of"substantial development" under the State
Shorelines Management Act; contrary to the applicant's contention in its letter to the City
Department of Community Development dated February 27, 2007.
HE Findings, Conclusions and Decision SDP-01-06 Page 24
37. Development that does not constitute "substantial development" must still comply with
applicable policies and use regulations of the City Shoreline Program.
38. WAC 173-27-040(2)(g) defines "single-family residence" to include a dwelling, and those
structures and developments within a contiguous ownership that are a normal appurtenance to the
dwelling; and defines "appurtenance" to include, in relevant part, a garage, deck, driveway,
utilities, fence, and "grading which does not exceed 250 cubic yards and which does not involve
placement of fill in any wetland or waterward of the ordinary high water mark". [emphasis
added]
39. The grading and other site preparation work performed or planned within the shoreline area
of the 30 lots on the site planned for the construction of single-family homes is not being done by
the individual owner or lessee of any planned residents for such owner or lessee's own use.
40. Additionally, the grading work, on a per lot basis, almost certainly exceeds the 250-cubic
yard grading exemption associated with single-family home construction. Further, grading is
being done on such lots for the installation of a new private road, driveway and utilities; which
development is not exempt from shoreline substantial development requirements. Such work
clearly exceeds the $5,000 threshold for requiring application for a substantial development permit
41 A small portion of the 2-acre parcel planned for 25 condominium/ apartment units is
located in the shoreline area, which area is designated in the Rural Area by the City Shoreline
Program and is zoned MZ. The City Shoreline Program generally allows such housing in the
Rural Area, subject to compliance with certain performance standards. Such housing cannot be
developed on the parcel without a rezone of such parcel to the UR-22 zone, as proposed by the
applicant.
42 Portions of the acreage parcels on the site located east of Stenger Road extended are
located in the shoreline area, both north and south of the planned private road. Such shoreline
area is designated in the Pastoral Area of the City Shoreline Program and is zoned MZ. Any
condominium/apartment units planned in such shoreline area would be prohibited by the City
Shoreline Program, because the only residential development allowed in the Pastoral Area is
single-family homes. Assuming that such units are planned south of the northerly private road in
the east portion of the site, the applicant should be able to avoid placing such units in the shoreline
area; provided the land involved is rezoned to the UR-22 zone as proposed.
43 The City Shoreline Program defines a"road" as a linear passageway for motor vehicles.
This defmition would encompass the portions of the planned private road and driveway planned
within the shoreline area of the site. See City Shoreline Program, page 3-10, item#12.
44 Significant portions of the private road and driveway in the portion of the site lying west of
Stenger Street extended are located in the shoreline area of the site, which area is designated in
the Rural Area. The City Shoreline Program generally permits new roads in the Rural Area,
subject to the land clearing requirements set forth in paragraph 3.2 on page 4-10 of the City
Shoreline Program.
HE Findings, Conclusions and Decision SDP-01-06 Page 25
45. Significant portions of the northerly private road planned in the portion of the site lying east
of Stenger Street extended are located in the shoreline area, which area is designated in the
Pastoral Area of the City Shoreline Program. See approximate location of 200-foot shoreline area
on grading plans.
46. The City Shoreline Program prohibits "new roads" in the Pastoral Area, unless certain
exceptions are met. The exception for "access to allowed activities" within the shoreline has
questionable applicability, since the housing proposed adjacent to the road is not allowed in the
Pastoral Area by the City Shoreline Program. The other exceptions are not relevant.
47. The portion of the private road planned in the Pastoral Area of the City Shoreline Program
generally follows the path of the north pit road that served the mining and industrial operations
previously conducted on the east portion of the site. The pit road generally meets the definition
of"road" in the City Shoreline Program,even though it served as an internal driveway rather than
a dedicated public or private road.
48. The City Shoreline Program indicates that the existence or construction of roads can limit
public access to public shoreline areas, impair the visual quality of shoreline areas, expose
shoreline areas to erosion, create water polluting runoff from shoreline and adjoining areas, and
impede the necessary and natural flow of floodwaters. See City Shoreline Program, p. 3-10, item
#12. In virtually all these respects, the planned private road will be an improvement over the
mining pit road that existed immediately prior to the grading operations on the site. The road may
also facilitate passive recreational use of the shoreline, which is a permitted use in the Pastoral
Area.
49. The portion of the private road located in the shoreline portion of the site designated in the
Pastoral Area should not be considered a"new road"prohibited by the City Shoreline Program;
provided the applicant can demonstrate that the road is needed to serve development that is
otherwise permitted in the east portion of the site, in or outside the shoreline area.
50. The applicant did not submit any plans for the recreational trails planned to connect to the
Spokane Centennial Trail, or any docks or bulkheads that may be planned. Accordingly, such
development cannot be considered part of the substantial development permit application or
approval. The future construction of such trails may be exempt from substantial development
requirements, if the cost of construction does not exceed$5,000.
51. Construction of a dock or bulkhead along the waterfront for one or more lots planned for a
single-family home on the site should not be permitted until, at a minimum, a complete application
for a building permit is submitted for the construction of the home on the lot(s); since such
structures cannot be considered appurtenant to a single-family home unless construction of such
home will actually occur.
52. The record indicates that the applicant may have logged timber in a portion of the shoreline
area of the site designated in the Pastoral Area, north of the north pit road; except for the portion
HE Findings, Conclusions and Decision SDP-01-06 Page 26
located north of the silt fence installed to enforce the 75-foot grading setback. The logging of
timber in the Pastoral Area is prohibited by the City Shoreline Program.
53. The record also indicates that the applicant may have clear-cut timber, or removed
merchantable timber in excess of the selective cutting permitted by the City Shoreline Area, in the
portion of the shoreline area of the site designated in the Rural Area.
54. The requests by the State Department of Archaeology& Historic Preservation (DHAP), and
the Spokane Tribe of Indians, for a professional archaeological survey of the site prior to ground
disturbing activities, were rejected by the City Planning Division; in favor of a requirement that if
any archaeological resources are discovered during construction, such discovery shall be promptly
reported to the City Planning Division, and the applicant shall cease construction in the protected
area and act to protect the archaeological resources.
55. The comments submitted by the DHAP and the Spokane Tribe state that the site is located
in an extremely culturally rich area, with numerous identified archaeological resources. Such
comments do not directly disclose whether such resources are located on the site, but indicate a
strong possibility that the site contains archaeological resources. DHAP and the Spokane Tribe
logically note that discovery during construction is not an adequate way to protect such resources
where they may exist on the site.
56. The City Shoreline Program requires the protection of significant archaeological, cultural or
historical sites, buildings and artifacts in the shoreline area; and also requires that development be
designed to preserve the natural environment and visual quality of its surroundings.
57. RCW 27.53.060 prohibits any person, company, organization or public agency from
removing or damaging any historic or prehistoric archaeological resource or site on property; or
from removing any archaeological object from such site; without first obtaining a permit from the
DHAP and the consent of the owner.
58. RCW 27.44.040 prohibits any person to knowingly remove, damage, etc. any native
Indian cairn, grave, glyptic record or painted record from property; and requires re-interment of
any native Indian graves that are inadvertently disturbed through destruction. RCW 27.44.050
authorizes an affected Indian tribe or member to maintain a civil action against any person alleged
to have violated RCW 27.44.040.
59. The applicant should be required to consult with the DHAP and/or tribe before any
additional work in the shoreline area, to determine whether any archaeological resources are likely
located on the site. If the City Planning Division determines, based on such consultation, that
archaeological resources likely exist within the shoreline area of the site, and that such resources
may be impacted by site development, the applicant should be required to perform an
archaeological survey to determine the presence of such resources, and protect such resources
from damage.
HE Findings, Conclusions and Decision SDP-01-06 Page 27
60. The City Phase I Development Regulations do not require public sewer, water or
transportation concur ency requirements to be established for shoreline permit or grading permit
applications. Such determinations for the project would be required at the time of building
permit; and at the time of the submittal of the application to rezone the east portion of the site to
the UR-22 zone, for sewer and water concurrency only.
61. The record indicates that the project will be served with public sewer and water. Mitigation
of the traffic impacts from development of the project on the public road system in the area would
be determined at the time of the building permit, and is not part of the review process for the
current application.
62. The applicant indicated that the 6-foot wall constructed along the south boundary of a
portion of the site was installed for safety reasons, considering the single-family homes located
south of the site, and the relatively steep slope on the site located north of the wall on the site.
Since the wall, along with the trees planted by the applicant below the wall, were installed outside
the 200-foot shoreline area, the view impacts to neighboring properties resulting from such
improvements cannot be considered in the review of the current application.
63. No competent evidence was submitted to indicate that the grading and site remediation
project released, or increased the potential release of, any pollutants or hazardous substances into
the air, groundwater or Spokane River; or onto the site or adjacent properties. The remedial
action conducted by the applicant appears to have greatly enhanced the environmental condition
of the portions of the site that were previously used for mining, industrial and railroad operations.
64. The conditions of approval for the application should be revised to correct the inconsistency
of the project with the use regulations of the City Shoreline Program and the provisions of the
City Critical Areas Ordinance.
65. The goals and policies of the City Shoreline Program for shorelines of statewide significance
recommend, in pertinent part, that the statewide interest be protected over the local interest, the
natural character of the shoreline be preserved, priority be given to long term over short term
benefits, the resources and ecology of the shoreline be preserved, and public access to the
shoreline be increased. These policies echo the policies set forth in the State Shoreline
Management Act, in RCW 90.58.020. As conditioned, the application will be consistent with
such policies.
66. The application, as conditioned, complies with applicable policies of the Comprehensive
Plan and the City Interim Zoning Code, the provisions of the City Interim Shoreline Master
Program, and the provisions of the City Interim Critical Areas Ordinance, and the procedures set
forth in chapter 90.58 RCW and chapter 173-27 WAC.
67. The application, as conditioned, will not have a significant, probable, adverse impact on the
environment. The requirements of the State Environmental Policy Act and the County's Local
Environmental Ordinance have been met.
HE Findings, Conclusions and Decision SDP-01-06 Page 28
68. Approval of the land use application, as conditioned, is appropriate under Chapter 10.35 of
the City Municipal Code, WAC 173-27-150, and the City Interim Shoreline Master Program.
IV. DECISION
Based on the above findings of fact and conclusions, the above application for a shoreline
substantial development permit for grading, road construction and other site preparation work is
hereby approved in part, subject to the conditions stated below; and denied in part. Any
conditions added or significantly revised by the Hearing Examiner below are italicized.
The Substantial Development Permit may be rescinded after a public hearing and notice,
pursuant to RCW 90.58.140(8), based on a finding that the applicant has not complied with the
conditions of approval.
Pursuant to Section 10.35.140 of the City Municipal Code, any aggrieved person may
make a written request for reconsideration of this decision by the Hearing Examiner within 10
days of the date the decision was rendered; based upon good cause that the decision is based on
erroneous procedure, error of law or fact, error in judgment, or the discovery of new evidence
that was not reasonably available for presentation at the public hearing; and which request must
set forth the specific errors or new information relied upon by the requesting party.
Conditions of Approval
SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT—PLANNING
DIVISION
1. The Shoreline Administrator of the Spokane Valley Community Development Department
shall promptly prepare and issue the Substantial Development Permit, pursuant to the
requirements of WAC 173-27-130 and chapter 90.58 RCW, and subject to the conditions of
approval set forth in this decision.
2. Except as provided below, the applicant is prohibited from removing any more riparian
vegetation or installing any improvements for the project within the 250 foot riparian buffer
applicable to the Spokane River under Section 11.20.060.C.2.e of the City Interim Critical Areas
Ordinance ("CAO'). The applicant shall also submit a plan,for review and acceptance by the
City Planning Division, to enhance the portion of the 250 foot riparian buffer in which riparian
vegetation was removed for the grading project.
3. The riparian buffer enhancement plan referenced in condition #2 above shall meet the
requirements set forth in Section 11.20.060.C.2.e of the CAO. Upon review and acceptance of
the plan by the City Planning Division, the applicant shall mitigate the impacts to the buffer.
The City Planning Division may consider enhancement of the native vegetation in the portion of
the riparian buffer that was not disturbed in lieu of requiring restoration of the native vegetation
that was removed, or a combination of such enhancements.
HE Findings, Conclusions and Decision SDP-01-06 Page 29
4. The restrictions and enhancement plan referenced in conditions #2 and #3 above shall not
be required for the 19 shoreline lots on the site zoned Urban Residential-3.5 (UR-3.5), to the
extent that the applicant applies for and obtains a reasonable use exception under Section
11.20.040.B of the CAO for development of such lots for single-family homes.
5. The restrictions and enhancement plan referenced in conditions #2 and #3 above shall not
be required for the 11 shoreline lots on the site currently zoned MZ, to the extent that the
1 applicant obtains a rezone of such lots to a zone that permits such residential development, and
thereafter applies for and obtains a reasonable use exception under Section 11.20.040.B of the
CAO for development of such lots for single-family homes.
6. The restrictions and enhancement plan referenced in conditions #2 and#3 above shall not
be required for the portion of the remainder of the site currently zoned MZ and lying southerly
of the northerly private road;provided the applicant obtains a rezone that allows the area of the
site lying south of the road to be developed for residential purposes.
7. The restrictions and enhancement plan referenced in conditions #2 and#3 above do not
apply to any portions of the planned private road or driveway (including the installation of
associated utilities and sidewalk) necessary for access to proposed housing permitted under
applicable zoning, and the riparian performance standards of the CAO. This exception requires
the approval of any reasonable use exception and rezoning needed to permit such housing.
8. The restrictions and enhancement plan referenced in conditions #2 and#3 above expressly
apply to the portion of the 250 foot riparian buffer located north of the northerly private road
and any adjacent planned utilities installations, east of the 11 lots currently zoned MZ.
9. The restrictions and enhancement plan referenced in condition #2 and #3 above do not
apply to any uses and activities permitted under the riparian habitat performance standards
contained in Section 11.20.060.C.2 of the CAO, or through riparian buffer width reduction or
averaging under Section 11.20.060.C.2.f of the CAO;provided such uses and activities
otherwise comply with the regulations of the City Shoreline Program and applicable zoning.
10. The restrictions and enhancement plan referenced in conditions #2 and#3 above do not
apply to implementation of the Habitat Management Plan required below within the 75 foot
setback from the OHWM of the Spokane River.
11. This decision does not authorize any docks, recreational trails, housing, or other
improvements not illustrated on the grading plans submitted for the site.
12. The applicant shall promptly contact and consult with the Washington State Department of
Archaeology and Historic Preservation and the Spokane Tribe of Indians to determine the
likelihood of any archaeological resources being found in the shoreline area of the site that may
be impacted by development. If the City Planning Division determines from such consultation
that the presence of such resources in the shoreline area is likely, the applicant shall submit a
professional archaeological survey to locate, identify and protect such resources.
HE Findings, Conclusions and Decision SDP-01-06 Page 30
13. Upon the discovery of potential or known archaeological resources at the subject properties
prior to or during future 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 24 hours from the time of discovery, the City of Spokane Valley
Community Development Department of said discovery.
14. All development under this permit shall comply with the provisions of the City Interim
Shoreline Master Program, City Interim Critical Areas Ordinance and City Interim Zoning
Code, as amended.
15. Reasonable caution shall be exercised to ensure that construction related equipment,
machine fluids and fuels shall not be operated, stored, located, and/or transferred in any part of
the shoreline area(200 feet from the ordinary high water mark of the Spokane River) in a manner
that such fluids or fuels can drain into or later make their way into the Spokane River, can
contaminate the water quality of the Spokane River or can harm the related water habitat/wildlife.
16. During construction, measures shall be taken to prevent erosion of the shoreline area(200
feet from the ordinary high water mark of the Spokane River) and prevent project related silt
laden runoff from entering the Spokane River. Settling ponds, straw bale filtering dams and/or
other erosion control techniques shall be used to ensure the Spokane River water quality is not
degraded.
17. Construction of the project shall comply with the Habitat Management Plan prepared by
Biology Soil& Water, Inc. dated March 9, 2007. Such plan shall also incorporate the
amendments to such plan recommended by the Washington State Department of Fish& Wildlife
in its letter dated April 13, 2007.
18. All other regulations or other permit conditions of approval, whether mentioned in this
permit or not, shall be the applicant's compliance responsibility.
19. The Substantial Development Permit in File No. SDP-01-06 is approved with conditions,
including two (2) permit expiration deadlines:
a. A two (2)-year period to COMMENCE WORK ON THE PROJECT from the
"effective date" of the permit. WAC 173-27-090(4) defines the "effective date" (i.e. date of last
action required to approve the permit, such as Washington State Department of Ecology
signature, appeal complete and other related permits). If a"commence work" extension has been
filed (application submitted and fees paid) before the two (2)-year expiration date, a one (1)-year
extension to commence the project may be granted; provided it is based on reasonable factors.
See WAC 173-27-090 (2).
b. A five (5)-year period to COMPLETE THE PROJECT from the "effective date" of
the permit. WAC 173-27-090(4) defines "effective date". If a"complete the project" extension
HE Findings, Conclusions and Decision SDP-01-06 Page 31
has been filed(application and fees paid) before the five (5)-year expiration date, a one (1)-year
extension to complete the project may be granted; provided it is based on reasonable factors. See
WAC 173-27-090(3).
20. Pursuant to WAC-173-27-090(4), all conditions of approval must be satisfied before any
structures are allowed to be inhabited.
21. Any revisions to this Substantial Development Permit must be approved by the City of
Spokane Valley Community Department and the Washington State Department of Ecology.
22. Prior to starting construction the applicant shall obtain all required permits.
SPOKANE COUNTY DIVISION OF UTILTIES
23. A wet (live) sewer connection to the area-wide public sewer system is to 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. Certain easements will be
required for the extension of the sanitary sewer system.
24. 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
connections and facilities for review and approval. Commercial developments shall submit
historical and or estimated water usage as part of the sewer plan submittal.
25. Sewer plans acceptable to the Division of Utilities shall be submitted prior to the finalization
of the project.
26. 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
27. Dust emissions during demolition, construction, and excavation projects must be controlled.
This may require the use of water sprays, tarps, sprinklers or suspension of activity during certain
weather conditions.
28. Measures must be taken to avoid the deposition of dirt and mud from unpaved surfaces onto
paved surfaces. If tracking or spills offer on paved surfaces, measures must be taken immediately
to clean these surfaces.
29. Debris generated as a result of this project must be disposed of by means other than burning.
30. If objectionable odors result from this project, effective control apparatus and measures
must be taken to reduce the impact of diesel exhaust, a suspended carcinogen.
HE Findings, Conclusions and Decision SDP-01-06 Page 32
31. Special attention should be given to proper maintenance of diesel powered construction
equipment to reduce the impact of diesel exhaust, a suspended carcinogen.
32. 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.
33. 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.
34. SCAPA strongly recommends that all traveled surfaces (i.e. ingress, egress, parking areas,
access roads, etc.) be paved and kept clean to minimize dust emissions.
WASHINGTON STATE DEPARTMENT OF FISH AND WILDLIFE
35. An attached amendment to the Habitat Management Plan should be submitted with a
vegetation plan, including a list of appropriate native plants, and information that serves as a guide
for future site development or for new homeowners.
36. The slope on the east portion of the site where the approximate 75-foot setback was
encroached shall be restored and covered with coir matting. This will allow for immediate erosion
control while native plants and grasses are being established from seed and plantings.
37. Irrigation of the site should be included as part of the overall plan.
38. The City shall record a title notice that attaches the 75-foot buffers to the deed for each
lot that is sold, so that the property buyers are made aware of the activity restrictions and permits
required within the buffer areas. Language should also include the need for a Hydraulic Permit
from the Washington State Department of Fish & Wildlife for any work that will be taking place,
near, at or below the ordinary high water mark of the Spokane River.
39. The approximate 75-foot buffer setback should be delineated with the Washington State
Department of Ecology for each of the thirty (30) home lots that are designated in the plans.
These buffer areas will then be permanently marked on the ground to help ensure that the
property owners are aware of the buffer protection area.
WASHINGTON STATE DEPARTMENT OF ECOLOGY
40. Proper erosion and sediment control practices must 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
HE Findings, Conclusions and Decision SDP-01-06 Page 33
for Eastern Washington. All ground disturbed by construction activities must be stabilized. When
appropriate, use native vegetation typical of the site.
41. Stormwater runoff may contain increased levels of grease, oils, sediment, and other debris.
Stormwater Best Management Practices (Bumps) should be installed and maintained so that any
discharge will be appropriately treated to remove these substances.
42. Dumpsters and refuse collection containers shall be durable, corrosion resistant,
nonabsorbent, no leaking, and have close fitting covers. If spillage or leakage does occur, the
waste shall be picked up immediately and returned to the container and the area properly cleaned.
43. Routine inspections and maintenance of all erosion and sediment control Best
Management Practices (Bumps) are recommended both during and after development of the site.
44. The operator of a construction site that disturbs one acre or more of total land area, and
which has or will have a discharge of stormwater to a surface water or to a storm sewer, must
apply for coverage under Department of Ecology's Baseline General Permit for Stormwater
Discharges Associated with Construction Activities.
45. Owners of sites where less than one acre of total land area will be disturbed must also
apply if the construction activity is part of a larger plan of development or sale in which more than
one acre will eventually be disturbed. Discharge of stormwater from such sites without a permit is
illegal and subject to enforcement action by the Department of Ecology. Applications should be
made at least sixty(60) days prior to commencement of construction activities.
46. The applicant is encouraged to use construction products containing recycled and non-
toxic materials whenever possible, to reuse and recycle all leftover construction materials, and
reduce waste generated and practice "Green Building" principles in all aspects of the project.
Recycling construction debris is typically less expensive than disposal.
47. The applicant should consider designing the project so opportunities to recycle are at least
as convenient as waste disposal. They should try to provide adequate, properly located space
inside and outside the project to accommodate equipment and container for processing and
storage of recyclables and plan to recycle items such as paper, glass, aluminum and other metals,
corrugated containers and plastic.
48. No further development activities will occur within two hundred(200) feet of the ordinary
high water mark of the Spokane River until the following conditions have been complied with.
Documentation of compliance will be in the form of written approval from Washington State
Department of Ecology(DOE).
49. An approximate seventy-five (75)-foot wide shoreline setback from the ordinary high
water (OHWM) of the Spokane River shall be established for the subject development. DOE and
the City of Spokane Valley staff will meet with the applicant to discuss, agree and permanently
mark on the ground the waterward point on each lot line of the platted single family residential
BE Findings, Conclusions and Decision SDP-01-06 Page 34
lots that delineates the setback from the OHWM of the Spokane River. These locations will be
memorialized on the ground with permanent low-profile concrete or metal monuments.
50. Other than the restoration work mentioned below there will be no clearing, grading,
excavating, burning, dumping or disturbance of any kind within the established shoreline setback,
without written approval from the City of Spokane Valley and DOE. The intent of this condition
is to maintain in perpetuity the natural character and ecology of the shoreline in this relatively
undisturbed reach of the Spokane River.
51. All areas waterward of the delineated setback that have been disturbed by the applicant
will be immediately restored. Disturbed areas will be seeded with a mix of native grasses and
forbs to be approved by DOE and the Washington State Department of Fish& Wildlife as soon as
possible this spring. If the applicant's landscape contractor determines that spring planting would
be ineffective due to the lateness of the growing season, the area will be protected from erosion
and invasive weed growth over the summer and fall planting will occur no later than October 31,
2007.
52. . Any property owners, currently or in the future, that wish to install boat docks along the
Spokane River must meet with the City of Spokane Valley Community Development Department,
DOE and Washington State Department of fish & Wildlife prior to application submittal and
approval. The intent of this condition is to reduce the number and impacts of docks along this
reach of the shoreline. Only minimal low impact access ways and docks will be approved.
53. These conditions and restrictions will be placed on the permanent monuments noted above
notifying current property owners of the same. The City of Spokane Valley Community
Development Department will prepare a Title Notice specifying these conditions so that future
property owners will be made aware of these restrictions. The Title Notice is to be filed with the
Spokane County Auditor.
DATED this 5th day of June, 2007
SPOKANE COUNTY HEARING EXAMINER
Michae C. Dempsey, WSBA#82
HE Findings, Conclusions and Decision SDP-01-06 Page 35
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
The above decision is a final decision by the Hearing Examiner on the above-referenced
application for a Substantial Development Permit. Pursuant to RCW 90.58.180 (1), any person
aggrieved by the granting of the above-described permit may seek review from the Washington State
Shorelines Hearings Board by filing a petition for review within 21 calendar days of the date the
above decision was filed with the Washington State Department of Ecology, as determined by RCW
90.58.140 (6).
1
A copy of this Decision was sent by certified mail to the applicant, the State Attorney
General's Office and the State Department of Ecology on June 5, 2007; and by regular mail to other
parties of record.
The complete record in this matter, including this decision, is currently on file with the Office
of the Hearing Examiner, Third Floor, Public Works Building, 1026 West Broadway Avenue,
Spokane, Washington, 99260-0245, (509) 324-3490. The file may be inspected during normal
working hours, listed as Monday-Friday of each week, except holidays, between the hours of 8:00
a.m. and 5:00 p.m. Copies of the documents in the record will be made available at the cost set by
Spokane County 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 SDP-01-06 Page 36