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Ponderosa Ridge Part 1 and 2 SPOKANE COUNTY HEARING EXAMINER RE: Application for the Preliminary Plat of ) Ponderosa Ridge,in the Low Density ) FINDINGS OF FACT, Residential(LDR)Zone; ) CONCLUSIONS OF LAW, Applicant: Cameron&Associates ) AND DECISION File No. PE-1940-04 ) ) I. SUMMARY OF DECISION Hearing Matter: Application for a preliminary plat,in the LDR zone. Summary of Decision: Approve preliminary plat application, subject to conditions of approval. The preliminary plat will expire on August 5, 2010,unless an application to request an extension of time is submitted at least 30 days prior to the expiration date. II. FINDINGS OF FACT 1. The application seeks approval of the preliminary plat of Ponderosa Ridge, to subdivide 27.7 acres of land into 100 lots for single-family dwellings, and three(3) common open space tracts,in the Low Density Residential(LDR)zone. 2. The site is located at the southeast corner of the intersection of 44th Avenue and Schafer Branch Road, in the NW 1/4 of Section 5, Township 24 North,Range 44 EWM, in Spokane County, Washington. 3. The site is currently referenced as County Assessor's tax parcel no. 44052.9179, and is legally described in the preliminary plat application. 4. The applicant for the preliminary plat is Cameron&Associates, do Clifford Cameron, 8419 N. Northview Court, Spokane, WA 99208. The site owner is Lanzce Douglass, 1402 E. Magnesium Drive, Suite 202, Spokane, WA 99207. Procedural history of application 5. Effective June 1, 2004, the County adopted a new County Zoning Code, and Phase 2 Development Regulations. The Phase 2 Development Regulations reclassified the zoning of the site from the Urban Residential-7* (UR-7*) zone of the former County Zoning Code to the Low Density Residential(LDR) zone of the new County Zoning Code. 6. On June 23, 2004, the applicant submitted an application for a preliminary plat and a Planned Unit Development(PUD) Overlay zone,to divide the site into 100 lots for single-family dwellings and 9.4 acres of common open space. The application stated that it was submitted under the UR-7 zone. 7. On July 22, 2004, the County Department of Building and Planning advised the applicant that the preliminary plat application was subject to the revised PUD Overlay zone standards contained in the new HE Findings, Conclusions and Decision PE-1940-04 Page 1 County Zoning Code, and would have to be revised. The application was also subject to the LDR zone, and other applicable provisions of the new County Zoning Code. 8. On April 11,2005, the applicant submitted a revised preliminary plat map to divide the site into 100 lots for single-family dwellings,in the LDR zone,without a PUD Overlay zone. 9. On May 24, 2005, the County Department of Building and Planning issued a Determination of Nonsignificance(DNS) for the revised proposal. 10. On June 7, 2005, the Ponderosa Neighborhood Association and the City of Spokane Valley filed timely, separate appeals of the DNS ("SEPA Appeals")with the County Department of Building and Planning. 11. The Hearing Examiner conducted a public hearing on the proposal and SEPA appeals on June 8-9, 2005. The requirements for notice of public hearing were met. The Examiner visited the site on June 5, June 7 and July 29 of 2005. 12. The following persons testified at the public hearing: Tammy Jones Scott Engelhard Department of Building and Planning Division of Engineering and Roads 1026 West Broadway 1026 W. Broadway Avenue Spokane, WA 99260 Spokane WA 99260 Michael Murphy Brian McGinn Attorney at Law Attorney at Law 300 East Pine Street 601 W. Riverside, Suite 1900 Seattle, WA 98122 Spokane, WA 99201 Todd Whipple Dave Jackman 13218 E. Sprague Avenue 19307 E. Cataldo Avenue Spokane Valley, WA 99216-0844 Spokane Valley, WA 99016 Marina Sukup John Pederson City of Spokane Valley Department of Building and Planning 11707 E. Sprague Avenue 1026 W. Broadway Avenue Spokane Valley, WA 99206 Spokane,WA 99260 Cliff Cameron Larry Dawes 8419 N. Northview Court 725 W. Chelan Avenue Spokane, WA 99208 Spokane, WA 99205 Robert Bernstein Richard A. Velategui 507 18th Avenue East 4811 S. Spencer Lane Seattle, WA 98112 Spokane Valley, WA 99206 HE Findings, Conclusions and Decision PE-1940-04 Page 2 Carl Cook Eberhardt Schmidt 4612 S. Schafer Brand Road 3808 S. Sundown Drive Spokane Valley, WA 99206 Spokane Valley, WA 99206 Janice Cooperstein Chuck Hafner 9716 E. 45th Avenue 4710 S. Woodruff Road Spokane Valley, WA 99206 Spokane Valley, WA 99206 Richard Behm Adriane P. Borgias 3626 S. Ridgeview Drive 9326 E. Holman Road Spokane Valley, WA 99206 Spokane Valley, WA 99206 Judy Belous Ron Oman 8803 E. 44th Avenue 4337 S. Farr Road Spokane Valley, WA 99206 Spokane Valley,WA 99206 Dave Olson Susan Wilcox 8808 E. 44th Avenue 4624 S. Schafer Branch Road Spokane Valley, WA 99206 Spokane Valley, WA 99206 Gayle Stiltner Claude Wells 10119 E 44th Avenue PO Box 380 Spokane Valley, WA 99206-9299 Loon Lake, WA 99148-0380 Michael Nilsson 1402 E Magnesium Road Suite 202 Spokane, WA 99217-7781 13. The Hearing Examiner heard the proposal pursuant to the County Hearing Examiner Ordinance and the County Hearing Examiner Rules of Procedure. Items in record 14. The Hearing Examiner takes notice of the County Comprehensive Plan, Capital Facilities Plan, Zoning Code,Phase 2 Development Regulations, Subdivision Ordinance, Critical Areas Ordinance and maps, Guidelines for Stormwater Management, and 2001 Standards for Road and Sewer Construction; County Code; other applicable development regulations; and prior land use decisions for the site and in the area. 15. The record includes the documents contained in the County Department of Building and Planning Pile for the application at the time of the public hearing,the documents and testimony submitted at the public hearing, the items taken notice of by the Hearing Examiner, and the County DNR Stream Types map included by reference in the record by the Examiner at the public hearing. The Examiner reviewed every document in the record. BE Findings, Conclusions and Decision PE-1940-04 Page 3 16. On the morning of June 10, 2005, the Hearing Examiner's office discovered four(4)unopened letters from neighboring property owners regarding the proposal at the County mailroom,postmarked between June 6 and June 8,2005. The Examiner's office did not pick up mail at the County mail room on June 8 and 9, 2005,because the Examiner and his staff assistant were in public hearings all day and into the evening hours on each date. Mail is delivered once each morning to the County mailroom. 17. Three of the above-referenced letters were opposed to the proposal, and one letter was in favor. See letters from Lyle and Maxine Kerns, William and Mary Farmley,Don Henderson, and Sylvia Riddle. All four letters are included in the record; because they are short,non-technical,raise similar points to those discussed by the various parties of record at the public hearing, and could likely have been added to the record during the public hearing. Description of site 18. The site is approximately 27.7 acres in size and undeveloped. A draw bisects the site in a north to south direction, and contains a seasonal stream with a channel width of approximately 8-10 inches. The topography of the site is hilly,with some slopes ranging up to 30%in the northwest corner and south end of the property, and flatter slopes located in the easterly third of the property. The site has an overall slope from north to south of approximately 7%. The property slopes down internally toward the draw containing the seasonal stream at a moderately steep slope, on both the east and west sides. 19. The site is vegetated with ponderosa pine trees, aspen trees, and a wide range of shrubs, grasses and plants. Vegetation on the site and the adjacent 17-acre parcel to the east is described in detail in the Habitat Management Plan submitted for the proposal on October 4, 2004. A number of rock outcroppings are found on the site. Overhead power lines cross portions of the site and adjacent properties. Description of preliminary plat 20. The preliminary plat map of record illustrates 100 residential lots ranging from 6,000 square feet to 10,526 square feet in size,with an average lot size of approximately 6,700 square feet. The total common open space in the preliminary plat is approximately 10.3 acres. Lot 7,Block 7 of the preliminary plat is not labeled as a"tract", like the other common open space tracts illustrated on the preliminary plat map, but is intended as common open space. 21. The density(net) of the preliminary plat is approximately 3.9 dwelling units per acre. The preliminary plat map indicates that the preliminary plat would be finalized in two phases,with the lots located in the east portion of the preliminary plat finalized first. The percentage of common open space in the preliminary plat is approximately 37%. 22. The preliminary plat would be served internally by a system of private roads. The preliminary plat map shows such roads as 30 feet wide, including 28 feet of asphalt paving and 1-foot curbs, and abutted by a 5-foot wide concrete sidewalk on one side. The stub road referenced as "46th Avenue"should actually be labeled"46th Lane", since it is intended to be a private road. 23. The preliminary plat map contains a notation"25 foot buffer for Type 5 drainageway" adjacent to the path of the seasonal stream through the site. The common open space tract that contains the seasonal stream in the north portion of the preliminary plat has a uniform width of 100 feet. HE Findings, Conclusions and Decision PE-1940-04 Page 4 Surrounding conditions 24. The 6-acre parcel that divides a portion of the site from north to south is designated in the Rural Conservation category of the Comprehensive Plan, zoned Rural Conservation(RC), and developed with a single-family home. The RC zone permits a maximum residential density(net) of one(1) dwelling unit per 20 acres, and requires a minimum lot size of 20 acres; except in a rural cluster development,where a maximum residential density(net) of one(1) dwelling unit per 10 acres is permitted, and a minimum lot size of one(1) acre is required. 25. The land lying east and northeast of the site is located in the City of Spokane Valley,which was incorporated in 2003. The 17-acre parcel abutting the site on the east is owned by the current site owner, zoned Urban Residential-7* (UR-7*)by the City, and undeveloped. The UR-7*zone in the City permits a maximum residential density(net) of six(6) dwelling units per acre 26. In June of 2004,the applicant submitted an application for a preliminary plat and a PUD Overlay zone to the City of Spokane Valley, to divide the 17-acre parcel abutting the site on the east into 79 lots for single-family dwellings and approximately two(2) acres of common open space, in the UR-7*zone,in City File No. SUB-07-04/PUD-04-04. Such parcel borders 44th Avenue for 220 feet, directly east of the site; abuts the westerly terminus of 45th Avenue on the east; and has a 60-foot wide finger that extends east to Farr Road. A public hearing had not been scheduled on such proposal at the time of the public hearing held on the current project. 27. The other land in the vicinity located to the east and northeast is zoned Urban Residential Estate (UR-1) zone by the City;which zone permits a maximum density(net) of one(1) dwelling unit per acre, and a minimum lot area of 40,000 square feet. Such land is improved with single-family homes on lots one(1) acre in size or greater; except for the more urban sized lots lying either directly northeast of the site along Locust and Fan Roads, or located northerly of Cimmaron Drive. 28. Further to the north and east, closer to Dishman-Mica Road, the land is zoned Urban Residential-3.5 (UR-3.5)by the City, and generally consists of single-family homes on more urban sized lots. The UR- 3.5 zone in the City permits a maximum residential density(net) of 4.35 dwelling units per acre. Some commercial uses and zoning are found in the area along Dishman-Mica Road,between Bowdish Road and University/Schafer Roads. A church is located along Schafer Road near its intersection with Dishman- Mica Road. 29. The land lying north and northwest of the site is designated in the Rural Conservation category of the Comprehensive Plan, is zoned RC, and consists of undeveloped farmland and forestland on large acreage parcels. The land lying south and west of the site is designated in the Rural Conservation category of the Comprehensive Plan, is zoned RC, and generally consists of smaller acreage parcels improved with single-family homes or undeveloped land. All such land is located outside the County Urban Growth Area (UGA). 30. Two pockets of unincorporated land located southeast of the site, along the south side of Holman Road, are designated in the Low Density Residential category of the Comprehensive Plan,zoned LDR and developed with single-family homes. Further to the south and southeast, the land is located outside the UGA, designated in the Rural Conservation category of the Comprehensive Plan and zoned RC; and consists of acreage parcels improved with single-family homes or undeveloped land. BE Findings, Conclusions and Decision PE-1940-04 Page 5 31. On April 11, 2003, the Hearing Examiner approved the preliminary plat/PUD of Mica View Estates, to subdivide 54.1 acres of land located approximately 1.3 miles east of the site into 83 lots for single-family dwellings and 17.5 acres of common open space; along with a PUD Overlay zone; in the UR-3.5 zone. See decision in File No. PE-1746-94/PUDE-1-94. 32. The 54.1 acres included in the Mica View Estates preliminary plat/PUD are located along the south side of Ponderosa Drive, southwest of the intersection of Bates Road and Ponderosa Drive, and west of and adjacent to the railroad line that extends through the area. Such property is currently located outside the UGA, designated Rural Conservation by the County Comprehensive Plan and zoned RC. The Mica View Estates preliminary plat/PUD is vested under the UR-3.5 zoning, zoning code provisions and other County development regulations in place in 1994; and has not received final plat approval. 33. On May 19, 2005, the Hearing Examiner, as hearing examiner pro tem for the City of Spokane Valley,heard an application for a preliminary plat, and a change of conditions to a prior rezone, to divide 2.9 acres of land located in the City of Spokane Valley, lying approximately one(1)mile northeast of the site, into 30 lots for divided duplexes, in the Urban Residential-12 (UR-12)zone. Such property is located along the east side of Schafer Road, approximately 340 feet south of the intersection of Dishman- Mica Road and Schafer/University Road. No decision had been rendered on such proposal, in City File No. ZE-46A-90/SUB-05-05, at the time of the public hearing held on the current proposal. 34. The Iller Creek Conservation area is located approximately.25 miles southwest of the site. The Dishman Hills Natural Area is located approximately 1.5 miles northwest of the site. 35. Ponderosa Elementary School is located approximately.5 miles northeast of the site, at the northeast corner of the intersection of Cimmaron Drive and Woodruff Road. A fire station operated by County Fire District 8 is located approximately 1.5 miles east of the site, at the southwest corner of the intersection of 44th Avenue and Bates Road. A railroad line borders the south side of Dishman-Mica Road in the area, and experiences occasional daily use. At-grade crossings of the railroad tracks are located along Schafer Road and Bowdish Road, south of Dishman-Mica Road. 36. In 2002, a 12-foot wide,paved, at-grade railroad crossing was constructed approximately 1.7 miles east of the site,between Bates Road and Dishman-Mica Road, south of 47th Avenue and north of 48th Avenue, to provide access for fire/emergency vehicles. Such crossing is gated and locked at both ends, and signed as a restricted railroad crossing. Fire District 8 has a key for the locked gate, and is fully authorized to access the road during emergency conditions and training purposes. Such access is to be used for fire/emergency vehicle access,but could potentially be used for emergency evacuation of the area should other access routes out of the Ponderosa area become blocked or congested. 37. The County Arterial Road Plan designates 44th Avenue adjacent to the site as an Urban Collector Arterial. The City Arterial Road Plan designates 44th Avenue,between the site and Schafer Road to the east, as an Urban Collector Arterial; and as an Urban Minor Arterial between Schafer Road and Sands Road further to the east. The City Arterial Road Plan designates Sands Road,between 44th Avenue and Bowdish Road, as an Urban Minor Arterial; Schafer Road as an Urban Minor Arterial; and Dishman- Mica Road as an Urban Principal Arterial. 38. Schafer Road continues north of Dishman-Mica Road as University Road,which is designated by the City Arterial Road Plan as an Urban Principal Arterial. The City Arterial Road Plan designates HE Findings, Conclusions and Decision PE-1940-04 Page 6 Bowdish Road,north of Sands Road, as an Urban Minor Arterial. The intersection of Dishman-Mica Road and Schafer/University Road, and the intersection of Dishman-Mica Road and Bowdish Road, are signalized. 39. Schafer Branch Road is a narrow two-lane road with a gravel or light bituminous surface,while 44th Avenue is a two-lane paved roadway without curbing or sidewalks. Woodruff Road is a two-lane paved road without curb or sidewalk. A slightly raised, 5-foot wide asphalt pedestrian pathway borders the asphalt road surface on the west side of Woodruff Road,between 44th Avenue and Cimmaron Drive. Schafer Branch Road dead-ends a short distance south of the site, and 44th Avenue dead-ends some distance west of the site. Issues raised by neighboring property owners 40. A large number of neighboring property owners expressed opposition to the project based on potential traffic safety and capacity impacts along area roads, fire/emergency access concerns, lot sizes, housing density,potential drainage and grading impacts,impacts on wildlife, impacts on school capacity, potential impacts on cultural resources, geo-hazard and drainage impacts, failure to consider impacts from the applicant's adjacent development to the east, and other concerns. A considerable volume of written information was submitted by neighboring property owners regarding the potential impacts of the project. Approval criteria 41. To be approved,the preliminary plat must comply with applicable development regulations;make appropriate provision for the public health, safety and general welfare;make appropriate provision for open spaces, drainage ways, streets or roads, other public ways,potable water supplies, transit stops, sanitary wastes,parks and recreation,playgrounds, schools and school grounds, critical areas, fire/emergency access, sidewalks for children who reach school by walking, and other relevant facts and planning features; and serve the public use and interest. See RCW 58.17.110, County Subdivision Ordinance and County Hearing Examiner Ordinance. 42. RCW 36.70B.030 and RCW 36.70B.040 provide that a comprehensive plan and development regulations adopted under GMA shall serve as the foundation for project review. Where aspects of development are regulated by local development regulations, or in the absence of applicable development regulations are addressed by a comprehensive plan, such regulations or plan are determinative of such aspects of development. During project review, the local government may not reexamine alternatives to or hear appeals regarding such items, except for issues of code interpretation. This includes, at a minimum, the type of land use permitted on property,if the criteria for their approval has been satisfied; the density of residential development in urban growth areas; and the availability and adequacy of public facilities identified in a comprehensive plan, if the comprehensive plan or development regulations provide for funding of such facilities as required by GMA. 43. Under Washington case law,where there is a conflict between the policies of a comprehensive plan adopted by a local government and the zoning code or other development regulations adopted by the local government, the zoning code and development regulations are controlling over the policies of a comprehensive plan. HE Findings, Conclusions and Decision PE-1940-04 Page 7 44. Under Washington case law, "community displeasure", standing alone, cannot be the basis for denying a land use application. The decision must be based on the criteria established by statute and local development regulations for consideration of the application. 45. The LDR zone,which currently applies to the site, is intended primarily for single-family and duplex residential development, at densities ranging from 1-6 dwelling units per acre. The maximum residential density(net) in the LDR zone is six(6) dwelling units per acre. The minimum lot area and the minimum lot frontage for a single-family residence in the LDR zone, outside a PUD Overlay zone, are 5,000 square feet and 50 feet,respectively. The preliminary plat complies with the development standards of the LDR zone. 46. The Staff Report sets forth applicable policies of the Comprehensive Plan. Policy UL.9.1 of the Comprehensive Plan recommends that residential densities (net) in the Low Density Residential category range from 1-6 dwelling units per acre. Policy UL.9.2 recommends that the County seek to achieve an average residential density(net) in new development of at least four(4) dwelling units per acre, through a mix of densities and housing types. Policy UL.8.1 recommends that mixed-income development be provided for in residential areas. The preliminary plat,which has a density(net) of 3.9 dwelling units per acre, specifically implements such policies. 47. The density(net) of the preliminary plat, at 3.9 dwellings units per acre, is significantly lower than the density(net) of six(6) dwelling units per acre permitted in the LDR zone; but is logical considering the critical areas designated on the site, and location of the site on the periphery of the UGA. 48. Policy UL.5.4 of the Comprehensive Plan encourages the preservation of healthy, attractive native vegetation,where appropriate, during land development; or the use of appropriate native plant materials in site landscaping. Policy UL.2.12 recommends that the site characteristics of residential development, including existing trees,be enhanced and preserved through sensitive site planning tools. Policy UL.2.15 encourages the planting of street trees in residential subdivisions. 49. Policy H.3.2 of the Comprehensive Plan recommends that the County ensure that the design of infill development preserves the character of the neighborhood. 50. Policies CF.6.3 and CF.7.2 of the Comprehensive Plan recommend that the County prohibit the extension of water or sewer service to new development that will degrade the level of service below minimum level of service standards. 51. Policy UL.7.10 of the Comprehensive Plan states that the phasing of land development shall be consistent with the established levels of service for the provision of public facilities and services within the UGA. Policy UL.7.12 of the Comprehensive Plan states that new development within the UGA shall connect to public sewer. 52. The Comprehensive Plan contains numerous policies protective of designated critical areas,which policies are specifically implemented through the County Critical Areas Ordinance. Policy NE.24.2 recommends that development proposals be designed to consider the retention and maintenance of critical fish and wildlife habitat areas, and provide buffers to protect corridors and water habitats. HE Findings, Conclusions and Decision PE-1940-04 Page 8 53. Policies NE.26.1 and NE.26.2 of the Comprehensive Plan state that the County should coordinate with the Washington State Department of Fish and Wildlife in land use planning and management of fish and wildlife resources; and strive to implement measures that contribute to the recovery and/or management of priority species. Policy NE.26.4 states that activities allowed within designated wildlife priority habitat should not compromise the habitat's quality or function. 54. Policies UL.2.20 and T.4a.12 of the Comprehensive Plan encourage new residential developments to be arranged in a pattern of connecting streets and blocks, to allow people to get around easily by foot, bicycle,bus or car. Cul-de-sacs or other closed street systems may be considered appropriate where topography or other physical limitations make connecting systems impractical, and under certain other circumstances. 55. Policy UL.2.11 of the Comprehensive Plan promotes the linkage of developments with open space, parks,natural areas and street connections. 56. Policy T.4a.9 of the Comprehensive Plan states that adequate access to and circulation within all developments shall be maintained for emergency service and public transportation vehicles. Policy T.6.2 of the Comprehensive Plan advocates safe and effective traffic control or grade separation at railroad at- grade crossings. 57. Policy T.3e.1 of the Comprehensive Plan recommends that the transportation network provide safe and convenient bicycle and walking access between housing,recreation, shopping, schools, community facilities and mass transit access points; and that obstructions and conflicts with pedestrian and bicycle movement be minimized. 58. Policy UL.2.14 of the Comprehensive Plan recommends that separated sidewalks be required on public roads developed in new residential subdivisions 59. Policy T.3 e.4 of the Comprehensive Plan recommends that the County promote hard surface walkway systems, including but not limited to, concrete, asphalt and brick, as an alternative to sidewalks that are separate from roads; if they fit in with the characteristics of the neighborhood and private maintenance is assured. 60. Policy T.4a.13 and Policy UL.2.21 of the Comprehensive Plan encourage the development of local access roads that are curvilinear,narrow, or use other street designs consistent with safety requirements, to discourage through traffic in neighborhoods;where such design fits into the surrounding street systems and aids in implementing specific land use designs. 61. Policy T.4a.4 of the Comprehensive Plan recommends that private roads be allowed inside residential developments as a principal means of access,provided adequate measures are in place to assure safe travel, emergency access and permanent private maintenance. 62. Policy T.412 of the Comprehensive Plan recommends that the capacity of existing roads be maximized to reduce the need for new or expanded roads, through the use of signalization,improved signage and other means. HE Findings, Conclusions and Decision PE-1940-04 Page 9 63. Policy T.2.2 of the Comprehensive Plan recommends that transportation improvements needed to serve new development be in place at the time new development impacts occur, or that a financial commitment, consistent with the County's Capital Facilities Plan,be made to complete the improvement within six(6)years. 64. Policy T.10.5 of the Comprehensive Plan states that impact mitigation fees and user-based fees shall be considered as a source of funding for all transportation improvements required because of new development. 65. Policy T.10.6 states that transportation impact fees shall be based on cumulative impacts from land uses within a traffic basin,with a proportionate share allocated based on a reasonable relationship between trips generated by any proposed land use and the improvements required. 66. Guidelines set forth in the 2001 County Standards for Road and Sewer Construction("County Road Standards")recommend the provision of adequate vehicular and pedestrian access to all parcels of land, minimizing through traffic movements and excessive speeds on local access streets, logical street patterns, minimizing vehicular and pedestrian-vehicular conflict points, considering traffic generators in designing a street system in a proposed development,prohibiting direct residential lot access to Urban Principal and Urban Minor Arterials, and consideration of bordering arterial routes. 67. The County Road Standards require the construction of curb and sidewalk along the public road frontage of new developments within urban land use zones. The County Road Standards give the County Engineer considerable discretion in selecting the roadway section to be applied in constructing new roads and improving existing roads,based on numerous factors, and in approving design deviations from the County Road Standards. See Sections 1.08 and 3.03 of County Road Standards. 68. The standards for construction of private roads set forth in the County Road Standards require a private road serving 21 or more lots to have a paved width of 28 feet, and a minimum 10-foot wide maintenance and utility easement on both sides of the private road;unless a design deviation is approved. 69. The County Road Standards require a subdivision that has the cumulative effect of creating a total number of lots,parcels or tracts served by an access road equal to or greater than 50 lots in a setting where the housing density ranges from 2-11 dwelling units per acre, or equal to or greater than 30 lots in a setting where the housing density ranges from.25 to 1.99 dwelling units per acre,to provide an additional access road into the development to serve fire district vehicles. However, if the local fire district concludes that the location and layout of the development causes a concern for safety, the County Engineer may,under the County Road Standards,require an additional access road into the development,regardless of the setting or number of lots served by an access road. See 2001 County Road Standards, Section 1.03(8). 70. The City of Spokane Valley has adopted the 2001 County Road Standards by reference. The County and the City of Spokane Valley have each adopted Level of Service"D"(LOS D) as the minimum acceptable level of service for signalized road intersections, and adopted Level of Service "E"(LOS E) as the minimum acceptable level of service for un-signalized intersections. HE Findings, Conclusions and Decision PE-1940-04 Page 10 Priority Wildlife Habitat 71. County Critical Areas maps illustrate elk and white-tailed deer priority wildlife habitat on the site and neighboring properties. 72. The County Critical Areas DNR stream types map illustrates a Type 5 seasonal stream extending through the site, the 6-acre parcel that partially separates the north and south portions of the site, and the property lying north and south of the site. Such stream generally follows the path of the Type 5 stream illustrated on the preliminary plat map through the site. The County DNR stream types map also shows an unclassified stream in the south end of the site, extending northwesterly from the south border to the Type 5 stream illustrated on the site. 73. On July 19, 2004, the Washington State Department of Fish and Wildlife(WDFW) submitted a letter to the County and the City of Spokane Valley,requesting that a habitat management plan be prepared for the preliminary platfPUD applications submitted for the site and the adjacent land to the east. WDFW requested that a minimum habitat buffer width of 100 feet be maintained on each side of the seasonal stream running through the site, any areas containing aspen groves on the two properties be placed in a buffer that connects to the requested stream buffer, and the applicant hire a consultant to conduct breeding bird surveys during the spring of 2005 using a methodology approved by the WDFW. WDFW noted that the value of the two properties to wildlife was enhanced by the area's close association with the Iller Creek Conservation Area and the Dishman Hills Natural Area, and the existing riparian area located adjacent to the seasonal stream on the site. 74. On October 4, 2004, the applicant's wildlife biologist,Larry Dawes, submitted a Habitat Management Plan for the preliminary plat proposals submitted for the site and the adjacent 17-acre parcel to the east in June of 2004. The Plan noted that the County's Fish and Wildlife Conservation Areas database designate Riparian,Urban Natural Open Space, White-tailed Deer and Elk priority wildlife habitat on the properties; and advised that such habitats must be protected under the County's Critical Areas Ordinance. 75. The Habitat Management Plan found that no springs feed the seasonal stream on the site; the channel for the seasonal stream disappears into the ground several yards (approximately 50 feet) south of 44th Avenue on the site; and no defined stream channel exists near 44th Avenue on either side of the road, although a culvert connects the north and south sides of 44th Avenue in the alignment of the seasonal stream. 76. The Habitat Management Plan concluded that the seasonal stream on the site does not qualify as a Type 5 stream under the Interim Water Typing System adopted for forest practices under WAC 222-16- 031,because it does not physically connect by an aboveground channel system to a DNR Type 1, 2, 3 or 4 Stream; and is therefore not regulated. The Plan also concluded that Elk priority wildlife habitat does not exist on the site. 77. The Habitat Management Plan requires that a 100-foot wide travel corridor be established for deer and other wildlife in the current preliminary plat, centered along the seasonal stream located on the site, and extended to 44th Avenue; all lots in the preliminary plat be placed at least 50 feet from the seasonal stream; a"wildlife protection zone"be set aside on a large tract of open space in the westerly two-thirds of the south portion of the site; and a second wildlife travel corridor be established that extends northwesterly HE Findings, Conclusions and Decision PE-1940-04 Page 11 through the northwest corner of the preliminary plat, across the ridge above the seasonal stream draw, to Schafer Branch Road. 78. The Habitat Management Plan advised that the proposed"wildlife protection zone"tract of open space would protect the primary aspen habitat on the site,preserve other native vegetation, and provide daytime protective cover for wildlife seeking to use the north part of the draw on the site during darkness. The Habitat Management Plan stated that the two travel corridors would provide both a"high" and a "low" corridor for deer and other wildlife;be linked to the wildlife habitat located on the 6-acre parcel that separates a part of the north and south portions of the site, and on the"wildlife protection zone"tract in the preliminary plat;provide connectivity to forested wildlife corridors located off-site to the south and west; and provide important linkages for deer that choose to access water sources west and north of the site. 79. The Habitat Management Plan requires that homeowners in the applicant's two proposals manage noxious weeds as required by the County and City,residents restrain free-ranging pets, dirt bikes and all- terrain vehicles be prohibited off access roads, any disturbed open space areas be re-seeded with native vegetation as prescribed by a qualified biologist, and measures for wildlife habitat protection be enforced through formation of a homeowners association. The Plan requires that such measures, and other required elements of the Habitat Management Plan,be included in the declaration of protective covenants adopted for the final plats. 80. The Habitat Management Plan recommended voluntary measures for future homeowners to take in implementing individual site plans that preserve and enhance wildlife on their lots. This includes building homes close to the access roads in the applicant's projects,minimizing the falling of trees,preserve important bird habitat,minimizing site disturbance beyond a manicured yard, landscape to avoid human/animal conflicts and enhance wildlife habitat,participating in WDFW's wildlife sanctuary program, not build fences, and retaining an undeveloped habitat buffer of native vegetation along the backs of lots bordering the draw on the site. 81. The Habitat Management Plan acknowledged that it would eliminate part of the home range of the resident deer population, and that resident deer would have to adjust their home range so that more of it lies in adjacent forested land located to the west outside the UGA;but that the Plan would implement the goals of the State Growth Management Act,by accommodating increased housing density while preserving green space and wildlife corridors inside the UGA. 82. On October 8,2004, the County Department of Building and Planning provided a copy of the Habitat Management Plan to the WDFW, and advised WDFW that it had until October 22, 2004 to comment on the Plan. 83. On October 27,2004, the WDFW responded to the Habitat Management Plan; advising that the buffer proposed adjacent to the seasonal stream on the site was still not wide enough for habitat protection, reiterating its request that a breeding bird survey be conducted,requesting that the Plan consider impacts from the stormwater plan for the proposals, acknowledging that the open space in the southwest corner of the proposal would provide some protection for wildlife and preservation of migration corridors, and expressing concern that inadequate measures were proposed to protect the riparian area abutting the seasonal stream. fiE Findings, Conclusions and Decision PE-1940-04 Page 12 84. At the June 8, 2005 public hearing on the proposal, the City of Spokane Valley,in support of its SEPA appeal, submitted a copy of a letter dated February 11,2005 from WDFW to Tammy Jones of the County Department of Building and Planning,regarding the Habitat Management Plan for the current proposal. The letter indicated that copies were sent to the City, the Hearing Examiner and others. Both Tammy Jones and the Examiner stated at the public hearing that they had not previously seen the letter, which was not part of the project file before the public hearing. 85. The letter dated February 11,2005 from WDFW contended that the Habitat Management Plan did not fully consider the recommendations contained in the"WDFW Management Recommendations for Washington's Priority Habitats: Riparian",which recommend a 150-foot wide buffer for a Type 4 stream. This appears to mean a 150-foot wide buffer on each side of the water body. The letter implied that the seasonal stream on the site was a Type 4 stream; and recommended that the buffer width along the seasonal stream be increased to 100 feet on each side of the stream, all the aspen stands located within such buffer be preserved on the site, and the County negotiate with the applicant to retain the enhanced buffer area under a conservation easement. 86. On April 11,2005, the applicant submitted the revised preliminary plat map for the proposal;which increased the amount of common open space from 9.4 acres in the original preliminary plat to 10.3 acres, and revised the dimensions of the open space tracts and the location of lots in the preliminary plat. The revisions included the provision of a uniform 100-foot wide open space tract for the seasonal stream in the north portion of the proposal; and a 225-foot wide connection to Schafer Branch Road for the large open space tract located in the south portion of the preliminary plat. 87. At the June 8, 2005 public hearing on the proposal,the City of Spokane Valley also submitted a letter dated June 7, 2005 from WDFW to the City,with a copy indicated to Tammy Jones of the County Department of Building and Planning. The letter referenced the current proposal; and also referenced an unrelated preliminary plat proposal known as Ponderosa Estates North(City File No. REZ-23-04/SUB- 15-04),which proposal does not involve the site owner and applicant for the current proposal. The Ponderosa Estates North proposal, submitted to the City in 2004,proposes the development of 48 single- family dwellings on land lying approximately one (1)mile northeast of the site, at the intersection of Woodruff Road and 36th Avenue. 88. WDFW, in its June 7, 2005 letter to the City of Spokane Valley, commented that the seasonal stream on the site originated off Browns Mountain to the southwest, and flowed northerly through the current site and beyond until it entered a wetland complex located on the Ponderosa Estates North site. WDFW stated in the letter that the seasonal stream was a Type 4 stream under chapter 222-16 WAC, from its point of origination all the way south to the wetland. The letter contended that the Habitat Management Plan failed to properly address protection of the Type 4 stream corridor, stream buffer widths,protection of riparian habitat,use of the stream corridor area by birds, deer and other wildlife, and the importance of the area for wildlife migration to adjacent habitat areas. 89. WDFW, in its June 7, 2005 letter, also referenced a letter from WDFW to the City,mailed on April 21, 2005,regarding the Ponderosa Estates North preliminary plat. A copy of the April 21,2005 letter was submitted at the June 8, 2005 public hearing by the City of Spokane Valley, as part of its SEPA appeal. The letter was addressed to the City,was not sent to the County, and was not in the project file for the current proposal before the public hearing. The letter indicated that the seasonal stream in question was improperly typed on the DNR stream typing overlay, the stream was a Type 4 stream because it was HE Findings, Conclusions and Decision PE-1940-04 Page 13 spring fed at its headwaters and had a"Perennial Initiation Point", and that a 150-foot wide buffer was recommended for such stream by WDFW. 90. At the public hearing, the applicant contended that the comments submitted by WDFW regarding the Habitat Management Plan cannot be considered by the County or the Examiner,because they were not • submitted within 15 days from the date the Plan was issued on October 8,2004. 91. Paragraph 11.20.060.D.2 of the County Critical Areas Ordinance sets forth the requirements for a habitat management plan report, including the inclusion of review comments by a habitat biologist from the WDFW. Such paragraph requires that the WDFW respond in writing to the County with review comments, or a request for additional information,within 15 days from the date of issuance of a draft habitat management plan; and that if WDFW does not respond within such time period,review comments from WDFW shall not be required as part of the habitat management plan report. The paragraph also authorizes the County Department of Building and Planning to approve habitat management plans or require additional information. 92. The response by WDFW regarding the Habitat Management Plan was due on Monday, October 25, 2004, since the 15th day after issuance of the Plan was Saturday, October 23, 2004. However, the effect of WDFW's untimely submittal of review comments and request for information on October 27,2004, under Paragraph 11.20.060.D.2.d of the County Critical Areas Ordinance,is that the Habitat Management Plan could be submitted by the applicant to the County as a final report,not that WDFW and others would be barred from later comment on the Habitat Management Plan. 93. The record indicates that the County, the applicant and the applicant's wildlife biologist did not become aware of WDFW's claim that the seasonal stream on the site was a Type 4 stream,under the Interim Water Typing System set forth in WAC 222-16-031,until WDFW's letter to the City of Spokane Valley dated June 7, 2005 was submitted by the City at the public hearing. 94. In 2001, the State Forest Practices Board adopted a new Interim Water Typing System for streams, lakes and ponds in the forested areas of the state,under WAC 222-16-031. The County Critical Areas Ordinance was not amended to adopt the interim water typing system; and continued to use the description of stream types contained in former WAC 222-16-030, the buffers for such streams specified in the Critical Areas Ordinance at the time it was first adopted in 1996, and the County DNR stream types map based on such stream typing and buffers. See paragraph 11.20.060.C.2.e of Critical Areas Ordinance. 95. The County Critical Areas Ordinance could arguably be considered out of compliance with the GMA,under best available science principles, for not adopting the new interim water typing system contained in WAC 222-16-031, and for not considering.the"WDFW Management Recommendations for Washington's Priority Habitats: Riparian"in adopting buffers for such streams, along with other"best available science". However,under vesting requirements,the preliminary plat application must be considered under the stream typing and associated buffers stated in paragraph 11.20.060.C.2.e of the County Critical Areas Ordinance. 96. The seasonal stream on the site qualifies as a Type 5 stream under the criteria contained in paragraph 11.20.060.C.2.e of the County Critical Area Ordinance and fowler WAC 222-16-030. However, the stream has no buffer under such criteria, since it does not connects to a Type 1, 2, 3 or 4 stream under the criteria, either upstream or downstream. To be a Type 4 stream under such criteria, a BE Findings, Conclusions and Decision PE-1940-04 Page 14 seasonal stream must influence the water quality of a Type 1, 2 or 3 stream, and have a minimum channel width of two(2) feet. 97. The Staff Report indicates that the seasonal stream on the site is a Type 5 stream that requires a 25- foot buffer, under the criteria specified in paragraph 11.20.060.C.2.e of the County Critical Areas Ordinance,based on a conclusion that the stream flows downstream into a Type 4 stream. However, as acknowledged by County Department of Building and Planning at the public hearing, this conclusion was erroneously based on the small segment of a Type 4 stream illustrated on the County's DNR stream types map that lies upstream of, and does not directly connect to, a portion of the seasonal stream lying north of 44th Avenue. See testimony of Tammy Jones. 98. Even under the Interim Water Typing System contained in WAC 222-16-031, there is limited and conflicting evidence in the record that the seasonal stream on the site is a Type 4 or a Type 5 stream. The applicant's biologist, Larry Dawes, contended that the stream is not spring fed and does not have a perennial initiation point at its source. WDFW did not explain in its correspondence how and when it determined that the stream was spring fed at its source and had a perennial initiation point. Dick Behm, an area resident who was instrumental in having the Chester Creek Hydrology Study performed for the area watershed, testified and submitted a written statement advising that a biologist for WDFW had traced the stream back to its source and found that it was stream fed. See Exhibit MM. However,neither Behm nor the WDFW provided any details regarding such field investigation. 99. Whether drainage in the seasonal stream actually reaches 44th Avenue aboveground during a normal water year is not determinative of whether the seasonal stream on the site is a Type 4 or 5 stream, either under the water typing criteria specified in the County Critical Areas Ordinance or the Interim Water Typing System specified in WAC 222-16-031. This is because there is no evidence in the record that the seasonal stream on the site flows into a Type 4 or higher stream north of, and downstream of, the site. 100. Physical observations by the applicant's wildlife biologist, Larry Dawes, support a conclusion that the seasonal stream has no aboveground channel connection near 44th Avenue, on either side of the road. However, the owner of land abutting the north side of 44th Avenue across from the site submitted a statement indicating that water from the site"runs under"44th Avenue into his fields from March until early June in a normal snow pack year. See letter dated 6-2-05 form Henry Phillips. The statement does not specify whether the water flows through a subsurface connection under the road, or through the culvert that passes under the road. The presence of a culvert under 44th Avenue clearly suggests that water has run through the culvert in the past, although the culvert may have been installed to prevent flooding during abnormally high water years. 101. The Washington Department of Ecology(WDOE), the Dishman Hills Natural Area, the Spokane Audobon Society, and others with training in wildlife biology submitted letters objecting to the Habitat Management Plan and/or the impact that the density of housing in the project would have on wildlife habitat. See letters from Margaret O'Connell,Lawton Fox and Robert Peregoy. 102. The preliminary plat would reserve over 37% of the site in common open space. The combined preliminary plat proposals for the site and the adjacent 17-acre parcel to the east would preserve approximately 27.5% of the combined sites in common open space. The letter submitted by Larry Dawes at the public hearing indicated that basing the buffer around the seasonal stream on a"noticeable break in slope", as recommended by WDOE,would eliminate development of the westerly two-thirds of the site. HE Findings, Conclusions and Decision PE-1940-04 Page 15 Preserving the aspen patches in the southeast portion of the combined sites, as recommended by WDFW, and preserving the extensive ceanothus shrub fields located in the southerly two-thirds of the east portion of the combined sites, as recommended by WDOE,would eliminate most of the remaining portion of the site, and much of the adjacent parcel, from development. At some point, such reservation of land eliminates "reasonable use" of the property. See paragraph 11.20.040.B of County Critical Areas Ordinance. 103. The County Department of Building and Planning accepted the Habitat Management Plan. See Staff Report. The applicant's wildlife biologist, Larry Dawes, submitted rebuttal letters and testified at the public hearing in support of the Habitat Management Plan. This included a vegetative planting plan to mitigate the impact of the stormwater detention ponds placed in the common open space in the preliminary plat. Such information, along with the Habitat Management Plan, establish that the highest quality habitat for deer,birds and other wildlife habitat will be preserved on the site and adjoining 17-acre parcel to the east; and that the 100-foot wide corridor containing the seasonal stream,together with the open space connections to Schafer Branch Road, and the wildlife habitat preserved in the south portion of the preliminary plat,provide an adequate travel corridor for deer and other wildlife that connects to the larger wildlife habitat areas located to the north, south and west. The applicant advised that the homes developed on lots abutting the west side of the 100-foot buffer containing the seasonal stream would be physically located at least 220 feet from the homes developed on the lots abutting the east side of the 100- foot buffer. 104. The information submitted by Larry Dawes establishes that the revised preliminary plat map was designed in accordance with the recommendations of the Habitat Management Plan; the revised stormwater plan for the preliminary plat,mitigated by the proposed vegetative planting plan, and the geo- hazards on the site,will not adversely impact priority wildlife habitat; there is an insufficient basis to require the applicant to prepare a bird study for the site; the preliminary plat will not impact a threatened or endangered species on the site; the preliminary plat will not have any significant adverse impact on a priority wildlife habitat or species; and the Habitat Management Plan meets the requirements of the County Critical Areas Ordinance and relevant policies of the Comprehensive Plan. Also see testimony of Michael Nilsson,P.E. Geohazards, drainage 105. County Critical Areas maps illustrate an erodible soils geo-hazard along, and west of, the draw in the southerly three-fourths (3/4) of the site. Soils maps illustrate soils classified by the County Critical Areas Ordinance as presenting a severe threat of water erosion in such area of the site, including BhD and BaB soils, as well as a small portion of BaD soils located in the middle part of the extreme south end of the site. 106. Neighboring property owners, and the City of Spokane Valley in its SEPA appeal, contended that the site contains slopes equal to or exceeding 30%, and that the 10-foot contours illustrated on the revised preliminary plat map are inaccurate; based on the 5-foot contours illustrated on the original preliminary plat map and the slopes illustrated on the Critical Areas geo-hazard maps used by the County and the City of Spokane Valley. See letter dated 6-6-05 and testimony submitted by geologist Eberhardt Schmidt. 107. The County Subdivision Ordinance only requires that topographic information be shown at 10-foot intervals on a preliminary plat map, if any slopes exceed 10%. The geo-hazard provisions of the County HE Findings, Conclusions and Decision PE-1940-04 Page 16 Critical Ordinance authorize the applicant to submit more specific information to refine the general level of information provided by the mapping of geologically hazardous areas on the County's Critical Areas maps. 108. The contours illustrated on the revised preliminary plat map are based on an actual survey of the site conducted by the applicant's surveyor after the original preliminary plat map was submitted;which survey indicated that the site does not contain all the variations in topography shown on the original preliminary plat map. See testimony of Cliff Cameron. The survey must be considered more reliable than the contours illustrated on the original preliminary plat map and the County geo-hazard maps. The contours on the revised preliminary plat map do indicate a few small areas where the slopes approach 30%. 109. Daniel Burgard, a soils scientist, submitted a letter dated June 5,2005 expressing concern that the geo-hazard evaluation report submitted by Michael Nilsson,P.E., on behalf of the applicant, did not specify the amount of grading to be performed on the site for development, or discuss mitigating measures for construction in the erodible soils on the site. 110. At the public hearing, the applicant advised that due to the revision of the water plan for the proposal, there will be no large retaining walls, significant grading or large scale movement of earth on the site resulting from site development; and cuts and fills would be balanced in the final plat. The applicant advised that more grading would be done for the project proposed east of the site in the City of Spokane Valley. See testimony of Cliff Cameron and Michael Nilsson. 111. The geo-hazard report submitted by Michael Nilsson,P.E., on January 31, 2005,the concept drainage report submitted by Nilsson on September 14,2004, and the preliminary geo-technical evaluation report attached to the concept drainage report prepared by STI Northwest fail to note the small amount of the BaD erodible soil located in the middle part of the extreme south end of the site. However, the omission is not important, since no development is proposed in the BaD soils on the site. 112. The geo-hazard report submitted by Michael Nilsson,P.E., on January 31, 2005 observed no evident signs of severe erosion on the site;noted that a majority of the erodible soils area would be left in open space and not developed; found that the soils on the site,based on soils tests done on the property, would have satisfactory workability and be adequately suited for subdivision development purposes such as utility, drainage and roadway construction; development in the area of erodible soils would not endanger public safety; and concluded that an erosion and sediment control plan prepared in accordance with best management practices and implemented during construction would help reduce the erosion potential. 113. The geo-hazard evaluation report could arguably have gone further in recommending erosion control measures during construction,particularly for the construction of housing. However, such concerns are addressed by County Engineering conditions of approval#23 and#24,which require a geotechnical investigation and mitigating measures for subsurface construction,in the event shallow bedrock or groundwater are located under the surface of the site;potential restrictions on basements and other subsurface construction; that the final plat dedication identify those lots where below grade construction is prohibited, and the preparation of a temporary erosion and sedimentation control plan prior to final plat approval. County Building and Planning condition of approval#19 requires the final plat to comply with the recommendations contained in the geo-hazard evaluation report. County Building and Planning condition#17 requires the final plat to comply with the County Critical Areas Ordinance. HE Findings, Conclusions and Decision PE-1940-04 Page 17 114. Erin Cunningham Rudders, a hydrogeologist, challenged the adequacy of the soils testing done for the concept drainage plan submitted by the applicant, and the ability of the soils underlying the proposed drainage detention ponds to infiltrate stoimwater. See letter dated concerns in a letter dated June 7,2005. However, such concerns are based,in part, on the elevation contours illustrated on the original preliminary plat map,which must be rejected in favor of the contours illustrated on the revised preliminary plat map to the extent they are inconsistent. The letter also makes debatable assumptions about the presence of shallow bedrock underlying the area where Ponds Cl and El are illustrated on the revised,post-developed concept drainage plan submitted for the project. See attachment to letter dated 6-7-05 from Michael Nilsson to Coun ty Engineering. En ineerin g g 115. County Engineering accepted the revised conceptual drainage report submitted for the project on June 6, 2005, subject to the acceptability of placement of the drainage facilities within the riparian buffer, based on input from the applicant's wildlife biologist and the WDFW. Such condition was submitted before Larry Dawes, the applicant's wildlife biologist, submitted a vegetative planting plan for the detention ponds proposed in the common open space in the proposed development. County Engineering condition of approval#32 requires the natural location of the drainage system on the site to be preserved. 116. County Engineering conditions of approval require the submittal of fmal road and drainage plans, and a final drainage report, that comply with the County Guidelines for Stormwater Management and the County Road Standards,prior to final plat approval. County Engineering conditions#27 and 28 require a site investigation and full-scale drywell tests to be performed by a qualified geotechnical engineer to verify infiltration rates utilized in the drainage design,prior to final plat approval. This includes the areas where the drainage detention ponds are proposed. 117. County Engineering condition of approval#26 requires developed volumes of stormwater to be disposed of on-site, and any stormwater discharges from the development to be controlled to pre-developed rates. The revised concept drainage plan does not discharge any stormwater onto the adjacent 17-acre parcel to the east, and provides for the disposal of stormwater from such adjacent development through a piped conveyance system into a drainage detention pond located on the current site. 118. The 1997 Chester Creek Hydrology Study suggests that inclusion of undeveloped properties in the upper watershed for the Chester Creek drainage in the UGA,where the site and adjacent 17-acre parcel to the east are located, and the development of such properties, could worsen flooding conditions in the lower Chester Creek watershed area. However, the revised drainage plan for the proposal will actually slightly decrease the volume of stormwater leaving the site. See testimony of Michael Nilsson,P.E. Critical Aquifer Recharge Area 119. County Critical Areas maps illustrate a critical aquifer recharge area(CARA) area of high susceptibility to groundwater contamination on the site. The preliminary plat complies with the CARA provisions of the County Critical Areas Ordinance, through the provision of public sewer and required compliance with the County Guidelines for Stormwater Management. County Engineering condition#29 assures compliance with the drainage requirements of the CARA regulations. Traffic Impacts 120. County Engineering conditions of approval require the applicant to improve 44th Avenue to a HE Findings, Conclusions and Decision PE-1940-04 Page 18 Collector Arterial roadway section along the frontage of the site, including the addition of 9.5-11.5 feet of asphalt, and curb and sidewalk. The conditions also require the applicant to improve Schafer Branch Road along the frontage of the site by adding approximately 27 feet of asphalt, curb and sidewalk; constructing a cul-de-sac at the southwest corner of the site; and strip paving Schafer Branch Road to a width of 24 feet along the frontage of the 6-acre parcel that divides part of the north and south portions of the site. Such conditions provide that the County Engineer may accept a minimum 10-foot wide asphalt pathway in lieu of sidewalk. 121. The City of Spokane Valley requested that the applicant provide mitigation to improve pedestrian safety along 44th Avenue between the site and Woodruff Road; and suggested that this include construction of a 5-foot wide sidewalk, constructed of concrete or"asphalt concrete pavement", on the south side of 44tH Avenue between the site and Woodruff Road, and offset five (5) feet from the existing pavement edge along 44th Avenue. See letter dated 5-24-05 from John Hohman of City of Spokane Valley Public Works to Tammy Jones. This request was generally supported by a traffic engineering consultant retained by the City. See Exhibit E. 122. A slightly raised, 5-foot wide asphalt pedestrian path is located adjacent to the pavement on the west side of Woodruff Road,between 44th Avenue and Ponderosa Elementary School,which school is located at the northeast corner of Woodruff Road and Cimmaron Drive. Such improvement appears intended to facilitate travel for students walking to school along such stretch of Woodruff Road. 123. The written comments submitted by the Central Valley School District on June 6, 2005 requested that sidewalks be provided along the streets in the final plat for students walking to school or waiting for a school bus, a hard surface area be provided at the perimeter of the final plat to serve as an off-street waiting area for students waiting to board a bus, area lights be provided at areas designated by the district as potential bus stops, and the private roads in the final plat be made wide enough and have adequate turning radii for school busses. 124. At the public hearing held on June 8, 2005,Dave Jackman, the Director of Auxiliary Services for the Central Valley School District,requested that the applicant construct an asphalt walking path along 44th Avenue between the site and Woodruff Road; considering increased traffic along 44th Avenue, the projected addition of 44 elementary students residing in the preliminary plat, the addition of middle school and high school students residing in the preliminary plat, and the lack of a good walking area along 44th Avenue west of Woodruff Road. 125. The Traffic Impact Analysis (TIA)report submitted by the applicant's traffic engineering consultant, dated January 28, 2005, discussed pedestrian safety for students; but failed to realize that a 5-foot wide raised asphalt pathway already exists along the west side of Woodruff Road; and failed to acknowledge the more narrow paved width of 44th Avenue, and the lack of adequate shoulders along 44th Avenue for students walking to school between the site and Woodruff Road. 126. The right of way width of 44th Avenue in the vicinity is 60 feet. The paved width of 44th Avenue in the vicinity is considerably narrower than the 37-foot wide paved width required for an Urban Collector Arterial under the County and City of Spokane Valley Road Standards. 127. The need for pedestrian access for students along 44th Avenue between the site and Woodruff Avenue was also supported by Robert Bernstein,P.E, a traffic engineering consultant retained by the HE Findings, Conclusions and Decision PE-1940-04 Page 19 Ponderosa Neighborhood Association. Bernstein noted the additional traffic and students generated by the proposal, the narrowness of the existing pavement along 44th Avenue, and the inadequacy of the existing shoulders along portions of 44th Avenue for walking. See letter dated 6-6-05 from Robert Bernstein, and testimony of Robert Bernstein. 128. The applicant requested that several contingencies be placed on extension of a pedestrian facility along 44th Avenue east of the site; including that construction be limited to a 5-foot wide asphalt pathway, the applicant be allowed to locate a temporary pressure sewer line serving the applicant's proposal under the pathway,placed at least six(6) feet from the existing water main located at the existing edge of the pavement,pending extension of a permanent sewer line and associated road improvements along 44th Avenue programmed for the area by 2009; construction be delayed until the completion of Phase One(50 lots) of the preliminary plat; the improvement be made within the existing right of way along 44th Avenue, considering grading, tree removal and drainage issues on the south side of 44th Avenue in the vicinity; financing of the pathway extension be done by the City of Spokane Valley through the road improvement district(RID)process,with the applicant contributing a proportionate share of the cost; and other details referenced in the applicant's letter to the City Public Works Department dated May 23, 2005. See testimony of Cliff Cameron. 129. The applicant cited the Hearing Examiner's 2001 decision approving the preliminary plat of Stonehorse Bluff(File No. PN-1786A-95), for an 88-acre site located in north Spokane County, as precedent for allowing construction of the pedestrian pathway to be delayed until Phase One of the current preliminary plat is finalized, and financing of the pathway through a RID. However, such decision did not allow construction of such improvements until completion of the first phase of development. Such decision required the applicant for the Stonehorse Bluff project to strip pave a road located between the site and nearby schools prior to issuance of a building permit or use of the property; but if adequate right of way was acquired, to also install sidewalk, curb and drainage on one side of such street, subject to the County first attempting to foiin a RID to finance such additional improvements. 130. The gravel shoulders along 44th Avenue between south Farr Road and Woodruff Road provide a wider and more even walking surface than the narrower and less graded shoulders located along 44th Avenue between the site and south Farr Road. See testimony of Cliff Cameron. The applicant should be required to install a pedestrian facility along 44th Avenue between the site and south Farr Road prior to the development of housing on the site, and to install a pedestrian facility along 44th Avenue between south Fan Road and Woodruff Road upon completion of Phase One of the preliminary plat. The installation of a temporary sewer line under such pathway must be worked out with the City of Spokane Valley. 131. The requirement for off-site pedestrian pathway improvements are roughly proportionate to the impact of the project on pedestrian safety along 44th Avenue to the east, and will directly benefit future students and other pedestrians in the project. The applicant's responsibility for the off-site pedestrian facility along 44th Avenue may be reduced proportionately if the applicant's adjacent preliminary plat to the east is approved,the City forms a RID for improvements along 44th Avenue, or public sewer is extended in 44th Avenue with associated road improvements prior to completion of Phase One of the current preliminary plat. 132. The TIA prepared by the applicant's consulting traffic engineer was accepted by County Engineering, and County Engineering certified transportation concurrency for the proposal. The TIA was also found acceptable by the City of Spokane Valley Public Works Department; except regarding the off- BE Findings, Conclusions and Decision PE-1940-04 Page 20 site pedestrian facility along 44th Avenue requested by the City, and except for the fire evacuation analysis in the TIA,which City Public Works advised was the review responsibility of the City Department of Community Development. 133. The TIA establishes that the proposal will not have any significant adverse impacts on the level of service (LOS), or on traffic safety, at area intersections at the time of build out. The cumulative traffic generated by ambient traffic growth and background projects,including the approved Mica View preliminary plat,was properly considered in the TIA. The divided duplex project proposed along Schafer Road near Dishman-Mica Road is not considered a background project; but the record indicates that even if the traffic from such project is added to the traffic analysis in the TIA, the LOS at the intersection of Schafer Road/University Road and Dishman-Mica Road would still be acceptable. See testimony of Todd Whipple,P.E. 134. Sight distance concerns at road intersections in the City of Spokane Valley impacted by traffic from the proposal and the applicant's adjacent proposal,raised by Robert Bernstein,P.E., and neighboring property owners,were not properly supported by accident statistics. The City of Spokane Valley accepted the traffic capacity and safety analysis contained in the TIA. See Exhibit E. 135. Janice Cooperstein, a neighboring property owner,raised a concern at the public hearing regarding the grade of 46th Lane in the preliminary plat. The applicant testified that the County would require that 46th Lane be designed and graded to meet the 12%maximum grade required for private roads under the County Road Standards, and meet County design requirements at the intersection of such road and Schafer Branch Road. See testimony of Cliff Cameron. 136. The proposal has two(2)private road connections to 44th Avenue and one private road connection to Schafer Branch Road,provides direct access for some lots to 44th Avenue and Schafer Branch Road, and provides for future connections to the road system located to the east through two(2)private road connections to the adjacent preliminary plat proposal. 137. The proposal and adjacent preliminary plat provide adequate arterial access and local access road connectivity. Cumulative traffic impacts from such developments will not result in the capacity of such roads being exceeded. See Exhibit J, and testimony of Todd Whipple,P.E. 138. Required road improvements to Schafer Branch Road will improve safety concerns associated with the steep grade, short stopping distance and turning radius at the intersection of Schafer Branch Road and 44th Avenue; along with providing a paved road surface, curbing, sidewalk and a new cul-de-sac. Schafer Branch Road currently dead-ends a short distance south of the site,without a cul-de-sac or other approved turnaround. See testimony of Todd Whipple,P.E. and Cliff Cameron. Fire Access 139. On July 22, 2004, Spokane County Fire District 8 submitted a list of requirements for the preliminary plat. This included completion of an evacuation study by Fire District 8 and other pertinent agencies,prior to fmal plat approval,which study would determine the ability to safely evacuate residents using the two main accesses out of the Ponderosa area onto Dishman-Mica Road, i.e. Schafer Road and Sands/Bowdish Roads. The document recommended that the traffic study prepared for the proposal cover BE Findings, Conclusions and Decision PE-1940-04 Page 21 the need for an evacuation, and the capability of the road system exiting the Ponderosa area to handle approximately 5,000 to 6,000 vehicles in a set period of time. 140. Todd Whipple,P.E., the applicant's traffic engineering consultant, spent several hours with Lieutenant Archer of Fire District 8, and obtained key documents from Lieutenant Archer to prepare an evacuation traffic analysis for the Ponderosa area and the proposal. This included the Fire Storm '91 Case Study, the July 2004 Ponderosa Neighborhood Emergency Overview, and the August 2004 Ponderosa Evacuation Plan. Whipple also considered other reference documents and conducted other discussions to refine the evacuation analysis. 141. The fire evacuation analysis contained in the TIA assumed a worst case scenario, that all homes in the Ponderosa area would be evacuated in a 30-minute time frame during a firestorm type event. The draft analysis was commented on by Fire District 8 staff,revised per Fire District 8 comments, and favorably received by Fire District 8 staff after its final revision. See TIA, and testimony of Todd Whipple. County Engineering also reviewed the evacuation analysis and found that the assumptions for the evaluation were conservative in nature.and that acceptable levels of service would be maintained. 142. On December 7, 2004, the City of Spokane Valley Public Works Department recommended that written approval of the evacuation plan contained in the TIA be obtained from the City's police chief and the fire chief for Fire Protection District 8,based on advice from its consulting traffic engineer. See Exhibit E. 143. On January 28, 2005, the TIA, and the fire evacuation analysis contained therein,was fmalized. The fire evacuation analysis concluded that with the assistance of emergency personnel, as would normally be the case during a significant fire event, an orderly flow of traffic and adequate level of service could be maintained at the intersections of Schafer/University Roads and Dishman Mica Road,Bowdish Road and Dishman-Mica Road, Schafer Road and Cimmaron Road, and Bowdish and Sands Road. The study also concluded that all other intersections in the Ponderosa area would function adequately during such evacuation,without the need for emergency personnel to direct an orderly progression of traffic. 144. On April 8, 2005,Bill Walkup, fire chief for Fire Protection District 8, sent a letter to Charles Hafner, a neighborhood representative,which clarified that the district had provided information for the evacuation analysis but did not directly participate in the analysis. Walkup advised that the fire district does not have written adopted evacuation plans for specific neighborhoods, and the responsibility for evacuation resides primarily with law enforcement agencies. Walkup also advised that in the event of a firestorm event, the district would not envision evacuating the entire area,but rather have citizens shelter in place or move to an area of refuge. 145. On April 22, 2005, the fire commissioners for Fire District 8 sent a letter to the County and City of Spokane Valley planning departments, advising that a typical traffic study, such as that prepared for the current project, is predicated on the "normal usage of the ingress and egress", and most likely does not consider the impacts of emergency situations or the cumulative impacts from development. The letter recommended that a comprehensive look be taken at the cumulative impacts from development in all areas of the district,with respect to ingress and egress. The fire commissioners' letter failed to acknowledge or understand that the fire evacuation analysis contained in the TIA considered both the impacts of emergency situations and cumulative impacts from development on ingress and egress in the Ponderosa area. HE Findings, Conclusions and Decision PE-1940-04 Page 22 146. On April 20, 2005, the board of fire commissioners for Fire District 1 sent a letter to the City of Spokane Valley,with a copy sent to County Engineering and the Board of County Commissioners, on proposed developments in the Ponderosa. The letter asked the City to review such proposals as a whole and take into account the total impact the developments would have on ingress and egress roads in the area, advised that the two existing access roads into the area may not be adequate for ingress of fire equipment and egress of citizens in a major wildfire, and stated that possibly widening the two access roads or adding a third access would reduce the risk. On May 20, 2005, County Fire District 1 submitted specific comments for the current preliminary plat,which requested a water plan showing the installation of new fire hydrants at various intervals, adequate fire apparatus turnarounds and appropriate road names. 147. Neighboring property owners contended that another general vehicle access out of the Ponderosa area was needed to provide proper fire access for the proposal, and provided anecdotal information regarding the 1991 firestorm event in support of such contentions. Robert Bernstein,P.E., testified that an additional vehicle access route was needed out of the Ponderosa area to deal with fire and other emergencies requiring an evacuation, and to accommodate additional growth in the area. Bernstein expressed concern that one of the two main accesses out of the area could become blocked during an emergency, and other contingencies could occur that might hamper a successful evacuation. 148. Marina Sukup of the City of Spokane Valley Dept.tinent of Community Development expressed concern regarding the adequacy of access for evacuation of the area,risk factors associated with an active rail freight line carrying hazardous chemicals,restriction of access to the area due to the floodplain located along Chester Creek in the area, and the need for the County and the City of Spokane Valley to develop a natural hazard mitigation plan under federal regulations. 149. The record indicates that there were problems with evacuation of residents and fighting fire in the Ponderosa area during the 1991 firestorm event; due to such factors as fire spotting,poor visibility due to smoke,residents not heeding orders to leave their homes, escaping animals,bystanders causing congestion at the two main accesses out of the area along Dishman-Mica Road,mistakes by fire personnel, other fires in the greater Spokane area placing a demand on fire personnel, and poor water pressure due to downed power lines in some areas. A total of 14 homes were lost in the Ponderosa area, 10 of which had shake roofs. However, the evacuation was generally successful in evacuating more than 2,500 residents of the Ponderosa area, although evacuation may have been more difficult had the initial fire events in the Ponderosa area occurred later in the day after residents had arrived home from work. 150. Claude Wells, a retired deputy fire chief with County Fire District 9,with a consulting business in fire safety, testified for the applicant at the public hearing. Wells observed that the"worst case"fire evacuation analysis contained in the TIA was only one possible scenario for a firestorm event,but was useful in analyzing the adequacy of fire/emergency access for the Ponderosa area. Wells testified that even with impact of the proposal and other new development proposed in the area, the existing two accesses out of the area via Schafer Road and Bowdish Road,together with the new at-grade railroad crossing for fire/emergency vehicles located off Bates Road,would provide adequate fire access for the area; and that the proposal would likely act as a"firebreak"for existing development located east of the site. Wells found it unlikely that one of the two main accesses out of the Ponderosa area to Dishman-Mica Road would become blocked for any significant length of time during any required evacuation of the area 151. The opinions expressed by Wells regarding the adequacy of fire access for the proposal were reasonably based on Wells' expert fire experience, the fire evacuation analysis contained in the TIA,the HE Findings, Conclusions and Decision PE-1940-04 Page 23 lessons learned by local fire district personnel from the 1991 firestorm and subsequent fire events, County fire access and building code standards applicable to new development, the fire prevention measures and restrictive covenants planned for development of the proposal, and the proposed hydrant and water plan for the proposal. Such opinions were supported by the testimony of Todd Whipple,P.E., and together establish that fire access for the current proposal,the adjacent preliminary plat proposal and the Ponderosa area are adequate. 152. The preliminary plat complies with secondary access requirements of paragraph 1.03(8) of the County Road Standards, since there are three(3) access routes out of the development for the lots in Phase One of the preliminary plat, and two(2) access routes out of the development for the lots in Phase 2. Once vehicles from the development reach 44th Avenue, other access routes become available to the north and east. 153. The proposal should be conditioned for compliance with the water supply, ingress and egress, and defensible space requirements contained in the written comments submitted by County Fire District 8 on July 22, 2004; the recommendation in such comments that restrictive covenants be adopted for the final plat,restricting parking on streets so as not to hinder access by emergency vehicles; the recommendation that home construction be of fire resistive roofmg and siding materials; and the May 20, 2005 requirements submitted by County Fire District 1. 154. The applicant objected to imposition of the $500 per lot fee requested by County Engineering condition of approval#3, for the purpose of constructing a railroad crossing"in the vicinity" of the proposal. See Exhibit I,Applicant's Memorandum RE: Impact Fees. The record indicates that the County has no current plans for a crossing,has not established where and when the crossing would be constructed,provided no estimate of cost or feasibility of constructing the crossing, and provided no basis for calculating the applicant's proportionate share of constructing the crossing. A similar condition imposed for the Mica View preliminary plat/PUD in the area was not challenged at the time such proposal was being reviewed. See testimony of County Engineering, and decision dated 4-11-03 in File No. PE- 1746-94/PUDE-1-94. 155. Because fire access for the proposal is adequate, and County Engineering provided no basis for calculating the $500 per lot fee for construction of an at-grade railroad crossing in the vicinity, there is no regulatory basis under SEPA,RCW 58.17.110, or the impact fee provisions contained in chapter 82.02 RCW to impose the fee on the applicant. Water plan 156. The Certificate of Water Availability form completed by County Water District#3 on June 17,2004 certifies that public water is available to serve the preliminary plat and the applicant's adjacent proposal to the east. The certification indicates that the water system has a current state permit allowing the number of water taps requested(179), the proposed development is consistent with the water purveyor's state approved water system plan, the water system is able to provide water in conformance with minimum levels of service below elevation 2220 feet, and that water service above such elevation will require a booster pump and reservoir. The County Department of Building and Planning certified on such form that the proposal met concurrency requirements for water service. HE Findings, Conclusions and Decision PE-1940-04 Page 24 157. Between February and March of 2005, the applicant's consulting engineers worked with County Water District#3 staff to devise a revised water plan to serve lots in the applicant's two projects located above elevation 2200 feet. The revised plan includes installation of a booster pumping station,but not a reservoir, to serve lots above elevation feet;with some allowance for grading to reduce the elevation of lots reasonably close to elevation 2220 feet to elevation 2220,which lots can then be served by the district's current water distribution system. There would be no massive grading down of the lots located above elevation 2220 feet, as originally contemplated by the applicant. See appendices 22-24 of Exhibit A, and testimony of Michael Nilsson,P.E. 158. The revised water plan will meet the fire flow,hydrant spacing and other water supply requirements of Water District#3 and local fire districts. There is no evidence in the record that the revised water plan would adversely affect the water system currently serving the existing properties located along Schafer Branch Road. 159. The preliminary plat, as conditioned, complies with the water concurrency requirements of the County Phase 2 Development Regulations. Public sewer 160. The Certificate of Sewer Availability form completed by County Utilities indicates that the applicant will design, fund, construct and provide financial surety for the necessary systems to extend sewer service to the site and provide service connections as required. The County Department of Building and Planning certified on such form that the proposal met concurrency requirements for public sewer. 161. The County plans to extend public sewer to the land located east of the site in the City of Spokane Valley by 2009. Such area, including the applicant's adjacent proposal to the east, lies inside the 6-year sewer capital improvement program area designated by the County. To serve the proposal with public sewer, the applicant plans to extend a pressurized public sewer line in 44th Avenue from the site east to Schafer Road, and north along Schafer Road to Cimarron Drive. Such facilities are contemplated to be retained between the site and south Farr Road,but abandoned east of Farr Road, at such time as County Utilities extends public sewer to the area lying east of the site. See testimony of Cliff Cameron. There is no competent evidence in the record that the extension of such facilities would have any significant, probable, adverse impacts on the environment. 162. Neighboring property owners contended that the County does not have future treatment capacity to serve the applicants' proposals. Such contention was based on problems being experienced by the County and the City of Spokane Valley in receiving authorization from the Washington State Department of Ecology to construct a proposed sewage treatment plant along the Spokane River, to provide additional sewer capacity for projected future development in the unincorporated portion of the county and in the City of Spokane Valley. However,it was not established that the County would run out of capacity for the applicant's projects. 163. The preliminary plat complies with the public sewer concurrency requirements of the County Phase 2 Development Regulations. HE Findings, Conclusions and Decision PE-1940-04 Page 25 Cultural resources 164. On July 6,2004, the State Office of Archaeology and Historic Preservation recommended to the County and the City of Spokane Valley that a professional archaeological survey be conducted for the applicant's proposals on the current site and adjacent 17-acre parcel, and that local tribes be consulted regarding such issues. On November 23, 2004, the Spokane Tribe of Indians submitted written comments to the City of Spokane Valley regarding the applicant's adjacent proposal located east of the site. The tribe indicated that the area had a high probability of producing archaeological artifacts and possibly humans remains, and recommended that an archeological survey and shovel testing be conducted in all ground disturbing activity. 165. On October 4,2004, the applicant submitted a cultural resources survey for the two proposals, prepared by archaeological and historical services staff at Eastern Washington State University. An archaeologist for the university walked the site and conducted shovel scrapes in various areas of the site. A literature review was also conducted for the vicinity of the projects. The survey disclosed no cultural resources eligible for listing in the area of potential effect on the sites,but recommended that if cultural resources are unearthed during project activities,work should be halted and a qualified archaeologist be contacted to assess the significance of the resource. Such recommendation has been included as a condition of approval. The survey was accepted by the State. 166. The proposal, as conditioned,will not have any significant adverse impact on cultural or historical resources. Parks and recreation 167. County Parks and Recreation commented that there is no County community parks located near the site, but noted the proximity of the site to the Iller Creek Conservation Area and the Dishman Hills Natural Area. Such agency recommended that the applicant voluntarily provide active recreational improvements within the project, or provide a voluntary contribution to the County to fund recreational opportunities at the nearest County park. 168. The County Phase 2 Development Regulations do not require direct concurrency for parks, and the Examiner has no authority to make mandatory the voluntary contributions recommended by County Parks and Recreation. The common open space in the project may provide some passive recreational opportunities for the future residents of the project. Development of the common open space in the preliminary plat for active recreational opportunities would conflict with the Habitat Management Plan prepared for the site. Schools 169. The Central Valley School District submitted written comments on June 6,2005, advising that the district anticipated being able to house students residing in the future development, and limited its comments to sidewalk and school bus issues, as discussed above. The County Phase 2 Development Regulations do not require direct concurrency for schools. HE Findings, Conclusions and Decision PE-1940-04 Page 26 Miscellaneous 170. The concerns raised by neighboring property owners regarding views were not substantiated, since the applicant has abandoned plans to conduct large amounts of grading on the site, and construct a large retaining wall along the south boundary. See testimony of Cliff Cameron. The County Zoning Code and the County Comprehensive Plan generally do not protect views. There is no evidence in the record that the maximum building height in the LDR zone would be exceeded in the development of the proposal. 171. Any inconsistency in the density, lot sizes and frontages in the preliminary plat with existing neighboring development is irrelevant,because such features of the preliminary plat comply with the LDR zone. See RCW 36.70B.030 and 36.70B.040. 172. The design, shape, size and orientation of lots in the preliminary plat are appropriate for the proposed use of such lots; and are appropriate for the character of the area in which the lots are located, considering the zoning of the site and adjacent properties, location of the site in the UGA and the availability of public services to the proposal. See County Subdivision Ordinance. 173. Block dimensions in the preliminary plat reflect due regard for the needs of convenient access, public safety, emergency vehicle access, topography,road maintenance and provision of suitable sites for the proposed use. Road alignments in the proposal are designed with appropriate consideration for existing and planned roads, anticipated traffic patterns,topographic and drainage conditions, safety and the proposed use of the site. See County Subdivision Ordinance. 174. The proposal has been conditioned for compliance with the LDR zone, other applicable provisions of the County Zoning Code, the County Subdivision Ordinance, and other applicable development regulations. 175. The Staff Report sets forth and analyzes applicable policies of the Comprehensive Plan. The Examiner agrees with such analysis, as supplemented herein. 176. Certain neighboring property owners contended that the application for a preliminary plat should be dismissed under Section 13.300.108 of the County Code(application review procedures for project permits); because more than 180 days passed between the time the County requested revision of the preliminary plat on July 22,2004 and the applicant submitted the revised preliminary plat map on April 11, 2005,without a"substantial step"being taken to meet project approval requirements. However, the applicant took several substantial steps during this time frame, including preparation of a habitat management plan, the initial draft of the TIA, a geo-hazard evaluation report, a cultural resources study and a concept drainage plan. Authority of City of Spokane Valley to file SEPA appeal 177. The applicant contended that the SEPA appeal filed by the City of Spokane Valley, through its Director of Community Development Department,Marina Sukup, cannot be considered by the Examiner. The applicant contended that the City Council for the City of Spokane Valley did not authorize such appeal at a public meeting, or any other time; the City Manager had no authority to authorize the filing of such appeal; and even if the City Manager had such authority,he did not authorize Marina Sukup to file HE Findings, Conclusions and Decision PE-1940-04 Page 27 the appeal. See Applicant's Memorandum re: Appeal of City of Spokane Valley,Director of Community Development. 178. The applicant contended that RCW 35A.13.080,which sets forth the powers and duties of a city manager in a council-manager form of government for a non-charter code city, does not authorize the city manager of such city to commence "legal proceedings" or"litigation"on behalf of the city. The applicant contended that only the Spokane Valley City Council could authorize the commencement of legal proceedings or litigation on behalf of the city,because RCW 35A.13.230 vests all of such city's power in its city council, "...except insofar as such power and authority is vested in the city manager...". The applicant cited the case of Washington Public Trust Advocates v. City of Spokane, 120 Wn. App. 892, 86 P.3d 835 (Division III,2004), for support. 179. Marina Sukup,Director of the City Community Development Department,testified that the City Manager and City Deputy Attorney agreed that filing the SEPA appeal was a"ministerial act"in furtherance of Sukup's administrative duties, and did not require formal Council action; the City Manager authorized her to file the appeal; and the City Council was briefed regarding Sukup's intent to file the SEPA appeal. Sukup conceded that a judicial SEPA appeal would require action by the City Council. 180. Under RCW 35A.13.080, the city manager in a council-manager form of government for a non- charter code city has general supervision over the administrative affairs of the code city, is required to see that all laws and ordinances are faithfully executed,has other express duties, and is required to perform such other duties as the council may determine by resolution or ordinance. 181. Pursuant to RCW 35A.13.230 and 35A.11.020, the city council in a council-manager foun of government for a non-charter code city has general control over the"legislative" affairs of the city. An action is considered"legislative"if it declares or prescribes a new law,policy or plan; but is "administrative"if it merely executes or purses a plan already adopted by the legislative body. The decision to undertake a major public project is considered legislative; but initiating and prosecuting litigation to determine specific rights, liabilities and responsibilities concerning a particular project or city ordinance are considered administrative decisions. See Ruano v. Spellman, 81 Wn.2d 820, 823-825; cited in Washington Public Trust Advocates v. City of Spokane,supra. 182. The Spokane Valley City Manager, and the Director of the City Community Development Department, are responsible for administering the development regulations of the City adopted by the City Council. This includes permitting and conditioning land development within the City; as well as commenting on land development proposals located outside the City that have impacts inside the City on the City's public infrastructure, or that are subject to regulation under the City's development regulations. 183. The term"local agency"under SEPA includes a city and its legislative body, and the departments with the city. See WAC 197-11-762. The County's SEPA Ordinance gives broad authority to local agencies to comment on the environmental impacts of a land use proposal on such agency. Such ordinance also authorizes any person to file a timely administrative appeal of a Determination of Nonsignificance(DNS)issued by the County Department of Building and Planning,without regard to standing at the administrative appeal level. See Section 11.10.170 of County Code, and WAC 197-11- 680. HE Findings, Conclusions and Decision PE-1940-04 Page 28 184. Filing an administrative SEPA appeal under the County SEPA Ordinance does not constitute"legal proceedings"or"litigation",which terms apply to actions in a court of law. The City's filing of a SEPA appeal is an"administrative"matter subject to the discretion of the City Manager and City Department of Community Development,not a"legislative"matter requiring action by the City Council. 185. The case of Washington Public Trust Advocates v. City of Spokane,supra,relates to the power of the mayor of the City of Spokane, a first class charter city with a strong mayor form of government,where the mayor holds the executive power of the city. Such case relates to superior court litigation brought and maintained by the strong mayor, is distinguishable from the present circumstances on the facts, and does not directly support the applicant's position. 186. The City's SEPA appeal filed by the Director of the City Department of Community Development was properly authorized. SEPA issues 187. Neighboring properties owners contended that the DNS issued by the County Department of Building and Planning for the preliminary plat was improper,because the notice of hearing provided on May 23, 2005 was issued before the DNS was issued on May 24, 2005, and incorrectly advised that a Mitigated Determination of Nonsignificance(MDNS)was issued. 188. The notice of hearing was issued prior to issuance of the DNS,in order to timely meet notice of hearing requirements for the public hearing on the preliminary plat. The Department issued a DNS on May 24, 2005, instead of a MDNS,because the applicant did not agree to the terms of a mitigating condition requested by the City of Spokane Valley Public Works Department on May 24,2005,which required the applicant to install a 5-foot wide sidewalk along 44th Avenue between the site and Woodruff Road. See letter dated 5-24-05 from City of Spokane Valley to Tammy Jones,re File PE-1940-04/SUB- 07-04/PUD-04-04. 189. The error in the notice of hearing was harmless, since there is no evidence that the error misled anyone. The DNS was available the day after the hearing. Anyone reading the notice of hearing would have had to inspect the project file at the County to determine what mitigating conditions were included in the MDNS, and would have discovered that a DNS was issued. The Ponderosa Neighborhood Association and the City of Spokane Valley both stressed the need for a sidewalk or pathway along 44th Avenue in their SEPA appeals. 190. The City of Spokane Valley contended in its SEPA appeal that it should be lead agency for the proposal,because the project has proportionately greater environmental impact in the City than in the unincorporated area of the county. 191. WAC 197-11-924 (1)requires,in pertinent part,that the first agency receiving an application for or initiating a nonexempt proposal shall determine the lead agency for the proposal. A"proposal"means a "proposed action". "Actions"include a decision on a specific project, such as a construction activity located in a defined geographic area, and include agency decisions to license any activity that will directly modify the environment. See WAC 197-i 1-784 and WAC 197-11-704. 192. The "proposal" or"proposed action"in the current circumstances is the preliminary plat application. HE Findings, Conclusions and Decision PE-1940-04 Page 29 The County was the first agency to receive such application, and is therefore responsible for determining lead agency status. 193. WAC 197-11-924 (3)requires an agency receiving a lead agency determination to which it objects to either resolve the dispute,withdraw its objections or petition the Washington State Department of Ecology within 15 days of receiving its objections. WAC 197-11-924 does not require the agency determining lead agency status to specifically notify other agencies that it has assumed lead agency status. 194. The County mailed a SEPA checklist to the City of Spokane Valley and other affected agencies, and notified such agencies by memorandum that it was conducting SEPA review for the project, on July 6, 2004. On July 28, 2004, the City Department of Community Development requested the County Department of Building and Planning to consolidate the necessary SEPA reviews and public hearings, because the applicant was proposing adjacent preliminary plats in both the County and the City. The County declined to do so,pursuant to a letter dated August 4,2004. 195. The City did not request lead agency status for the proposal until it filed its SEPA appeal on June 7, 2005. The request was not timely submitted under WAC 197-11-924 (3). 196. WAC 197-11-930 provides that for proposed private projects for which there is only one agency with jurisdiction, the lead agency shall be the"agency with jurisdiction". An"agency with jurisdiction" means an agency with authority to approve,veto or finance all or part of an exempt proposal. WAC 197- 11-714 (3). The City of Spokane Valley has no approval authority over the current preliminary plat, since the site is located outside the City limits. The preliminary plat can be approved or denied independently of the applicant's adjacent proposal located in the City. 197. WAC 197-11-932 provides that for private projects that require nonexempt licenses from more than one agency, the lead agency shall be that county/city within whose jurisdiction is located the greatest portion of the project area, as measured in square feet. The site is located entirely in the unincorporated area, and the City has no authority to approve or deny the preliminary plat application. The County is required to be the lead agency for the preliminary plat. 198. The City's SEPA appeal and the Ponderosa Neighborhood Association's SEPA appeal contended that the environmental review of the preliminary plat did not consider the cumulative impacts from the preliminary plat and the applicant's adjacent project located in the City, and did not address various direct and indirect impacts affecting both projects. 199. The preliminary plat applications were submitted at the same time in the County and the City. The TIA, the concept drainage plan,Habitat Management Plan, Cultural Resources Survey,water plan, sewer plans, fire evacuation plans, geo-hazard evaluation, and DNS take into account the infrastructure needs for, and cumulative impacts from,both preliminary plat proposals. This does not preclude SEPA review by the City for the adjacent preliminary plat proposal. The City retains authority over any permits needed to extend public sewer and install a pedestrian path along 44th Avenue inside the City for the current preliminary plat, or adjacent preliminary plat proposal. 200. The environmental checklist, as supplemented by the County Department of Building and Planning, adequately considered the environmental impacts from the current preliminary plat. The DNS properly HE Findings, Conclusions and Decision PE-1940-04 Page 30 considered such impacts. The proposal,by itself, or in conjunction with the adjoining preliminary plat proposal,will not have more than a moderate effect on the quality of the environment. 201. Certain conditions of approval for the preliminary plat have been added or revised by the Examiner, in light of the above findings of fact. Based on the above findings of fact, the Hearing Examiner enters the following: III. CONCLUSIONS OF LAW 1. The preliminary plat, as conditioned,generally conforms to the Comprehensive Plan. 2. The preliminary plat and dedication will serve the public use and interest; and make appropriate provision for the public health, safety and general welfare. 3. The preliminary plat and dedication make appropriate provision for open spaces,roads, drainage ways, schools and school grounds,playgrounds,parks and recreation, sidewalks and pathways for children who walk only to school,public transit,non-motorized transportation, sanitary wastes,potable water supplies, easements,utilities,planning features, critical areas, and all other relevant facts as specified in RCW 58.17.110 and the County Subdivision Ordinance. 4. The proposed subdivision meets the general design requirements specified in Section 12.400.122 of the County Subdivision Ordinance, and other requirements for preliminary plats listed in Chapter 12.400 of such ordinance. 5. The SEPA appeals of the Determination of Nonsignificance(DNS) issued for the proposal were filed timely. The Director of the City of Spokane Valley Community Development Department was authorized to file the SEPA appeal submitted on behalf of the City of Spokane Valley. 6. The environmental checklist, as reviewed and supplemented by the County Department of Building and Planning, contained a sufficient disclosure of the environmental impacts of the proposal. 7. The proposal,as conditioned,will not have a probable, significant adverse impact on the environment. 8. The threshold determination made by County Department of Building and Planning regarding the environmental impact of the proposal is entitled to substantial weight. 9. The DNS issued by County Department of Building and Planning for the proposal was not clearly erroneous, or arbitrary and capricious. The SEPA appeals of the DNS issued for the proposal should be denied. 10. Significant new information on the probable adverse environmental impacts of the proposal,by itself or in conjunction with the adjoining proposal to the east,was not submitted that cannot be reasonably mitigated through conditions of approval. 11. The procedural requirements of SEPA and the County's Local Environmental Ordinance were met. HE Findings, Conclusions and Decision PE-1940-04 Page 31 12. The preliminary plat, as conditioned, complies with the LDR zone, other relevant provisions of the County Zoning Code, the County Critical Areas Ordinance, and other applicable development regulations. 13. Approval of the preliminary plat application is appropriate under Section 11 of the County Hearing Examiner Ordinance, adopted by County Resolution No. 96-0171. IV. DECISION Based on the Findings of Fact and Conclusions of Law above, the subject application for a preliminary plat is hereby approved, subject to the conditions of the various agencies specified below. The SEPA appeals filed by the City of Spokane Valley and by the Ponderosa Neighborhood Association are hereby denied. Any conditions of approval of public agencies that have been added or significantly altered by the Examiner are italicized. This approval does not waive the applicant's obligation to comply with all other requirements of other public agencies with jurisdiction over land development. SPOKANE COUNTY BUILDING AND PLANNING DEPARTMENT 1. All conditions imposed by the Hearing Examiner shall be binding on the "Applicant",which term shall include the owners and developers of the property, and their heirs, assigns and successors. 2. The preliminary subdivision applies to the real property described in the preliminary plat application submitted on June 23, 2004. 3. The proposal shall comply with the Low Density Residential(LDR)zone, and all other applicable provisions of the Spokane County Zoning Code, as amended. 4. The final plat shall be designed substantially in conformance with the Preliminary Plat Map of Record submitted on April 11, 2005. No increase in numbers of lots or density, or substantial modification of the preliminary plat or conditions of approval, shall occur without a change of conditions application and its approval by the Hearing Examiner after a public hearing. 5. The Building and Planning Director/designee shall review any proposed fmal plat to ensure compliance with these Findings and Conditions of Approval. 6. A fmal plat/name/number shall be indicated before the final plat is filed, such name/number to be approved by the Building and Planning Director/designee. 7. Appropriate road name(s) assigned by the Department of Building and Planning shall be drafted on the face of the fmal plat. HE Findings, Conclusions and Decision PE-1940-04 Page 32 8. Appropriate utility easements shall be indicated on copies of the proposed fmal plat. Approval of utility easements by appropriate utility companies shall be received with the submittal of the final plat. 9. Four(4) current certificates of title shall be furnished to the Spokane County Department of Building and Planning prior to filing the final plat. 10. Prior to filing of all or a portion of the final plat, the applicant's surveyor shall submit one or more maps outlined in red of the area being finalized. The scale shall match the appropriated assessor's map scale. 11. At the time of final plat submittal, the applicant shall demonstrate either on the face of the final plat or on an acceptable attachment that all lots located on a cul-de-sac or curvilinear street meet or exceed the minimum required frontage. 12. A survey is required prior to the filing of the final plat. 13. The final plat dedication shall state: "The private roads and common areas shown on this plat are hereby dedicated to the homeowners association created by document recorded under State document no. ". 14. The private roads and common areas shall be considered subservient estates for tax purposes to the other lots created herein. 15. The final plat shall demonstrate compliance with the provisions of the Spokane County Critical Areas Ordinance, as amended. 16. Prior to final plat approval, the County Department of Building and Planning shall, after consultation with the Washington State Department of Fish and Wildlife and the applicant's wildlife biologist, require appropriate wildlife habitat mitigation for the location of drainage facilities along the seasonal stream in the common open space of the preliminary plat, in the revised conceptual drainage plan submitted on June 7, 2005. The Department of Building and Planning may, if it deems appropriate, limit mitigation to that recommended in the Vegetative Planting Plan for Ponderosa Property Stormwater Detention Ponds discussed in the letter from Larry Dawes of Biology& Water, Inc. to Hearing Examiner dated June 7, 2005. 17. The final plat shall comply with the recommendations of the Habitat Management Plan submitted on October 4, 2004,as applied to the revised preliminary plat map submitted on April 11, 2005. The final plat shall also comply with the mitigation, if any, required in condition of approval#16 above, which mitigation shall be considered part of the Habitat Management Plan. 18. The final plat shall comply with the recommendations of the Geo-hazard evaluation report dated January 31, 2005. The identified Geo-hazard areas shall be illustrated on the face of the final plat. 19. A copy of the homeowners' association articles of incorporation,bylaws, covenants and restrictions, together with any other provisions for maintenance of the private roads and the common areas and facilities, shall be submitted to the Department of Building and Planning for review and approval prior to finalizing the preliminary plat. Restrictive covenants shall be adopted to implement the requirements of HE Findings, Conclusions and Decision PE-1940-04 Page 33 the open space management plan and County Fire District 8 conditions of approval,and shall require compliance with the County Critical Areas Ordinance and the Habitat Management Plan. 20. Upon any discovery of potential or known archaeological resources at the site prior to or during on-site construction, the developer, contractor, and/or any other parties involved in construction shall immediately cease all on-site construction, shall act to protect the potential or known historical and cultural resources area from outside intrusion, and shall note the County Development of Building and Planning of said discovery within a maximum period of twenty fours from the time of discovery. 21. Lot 7, Block 7 of the preliminary plat shall be designated as common open space "Tract D", and 46th Avenue shall be designated as "46`h Lane", in the final plat. 22. The preliminary plat is given conditional approval for five(5)years, specifically to August 5, 2010. To request an extension of time, the applicant must submit a written application to the County Department of Building and Planning at least thirty(30) days before such expiration date, in accordance with the extension of time provisions of the County Subdivision Ordinance. Submission of a time extension application after the close of business hours on the last day a time extension request can be timely submitted will not be accepted,and the preliminary plat will become null and void on August 5, 2010. 23. The Building and Planning Department shall prepare and record with the Spokane County Auditor Notice,noting that the property in question is subject to a variety of special conditions imposed as a result of approval of a land use action. This Title Notice shall serve as a public notice of the conditions of approval affecting the property in question. The Title Notice should be recorded within the same time frame as allowed for an appeal and shall only be released, in full or in part,by the Building and Planning Department. The Title Notice shall generally provide as follows: "The parcel of property legally described as[insert legal description]is the subject of a land use action by the Spokane County Hearing Examiner on August 5, 2005, approving an application for a preliminary plat, and imposing a variety of special development conditions. File No. PE-1940-04,relating to such approval,is available for inspection and copying in the Spokane County Building and Planning Department." SPOKANE COUNTY DIVISION OF ENGINEERING AND ROADS Prior to release of a building permit or use of property as proposed: 1. Conditional approval of the preliminary plat by the County Engineer is given subject to dedication of right-of-way and approval of the road system as indicated in the preliminary plat map of record. 2. A traffic study has been accepted by the County Engineer for this proposal for a period of five years, more specifically to April 30, 2010. In order to file any portion of a plat after the five-year preliminary plat approval, the County Engineer may require updated traffic information to be submitted and additional mitigation may be required. 3. The applicant is not obligated to contribute the$500 per lot fee for construction of a railroad crossing in the vicinity, requested in condition of approval#3 of the conditions of approval submitted by the County Division of Engineering and Roads on June 8, 2005 for the preliminary plat. HE Findings, Conclusions and Decision PE-1940-04 Page 34 4. A Professional Engineer, licensed in the State of Washington, shall submit final road and drainage plans, a drainage report and calculations that conform to the 2001 Spokane County Standards for Road and Sewer construction(as updated in 2003), the 1998 Guidelines for Stormwater Management, and all standards and laws that are applicable to this project. Any fmal road and drainage plans and a drainage report shall receive the County Engineer's acceptance prior to release of a construction or building permit or approval of the final plat. 5. A concept drainage plan for this project has been accepted by the County Engineer. However, the acceptance of the concept drainage plan does not constitute final approval of the roads and drainage facilities for construction. The County Engineer may have additional comments that will need to be addressed prior to acceptance of final road and drainage plans. 6. Construction within the proposed public streets and easements shall be performed under the direct supervision of a licensed engineer/surveyor,who shall furnish the County Engineer with"Record Drawings"plans and a certificate in writing that all improvements were installed to the lines and grades shown on the approved construction plans and that all disturbed monuments have been replaced. 7. No construction work is to be performed within the existing or proposed public right-of-way until a permit has been issued by the County Engineer. All work is subject to inspection and approval by the County Engineer. 8. All construction within the existing or proposed public right-of-way is to be completed prior to filing the final plat or a bond in the amount estimated by the County Engineer to cover the cost of construction of improvements, construction certification, "Record Drawings"plans and monumenting the street centerlines shall be filed with the County Engineer. 9. Road design, construction and drainage control for 1/2 right-of-ways and stub road connections are the responsibility of the developer. 10. Approach Permits are required for any access to the Spokane County road system. 11. The applicant shall dedicate right-of-way as specified in the Spokane County Standards for a cul-de- sac at the south-west corner of plat, for the termination of Schafer Branch Road. 12. Dedication of the applicable radius on Schafer Branch Road and 44th Avenue is required. Note: The applicant may need to grant slope easements in order to construct the frontage improvements required at the intersection of 44th Avenue and Schafer Branch Road,which shall be determined at the time of fmal road and drainage design. 13. The County Engineer has designated a Collector Roadway Section for the improvement of 44th Avenue which is adjacent to the proposed development. This will require the addition of 9.5 to 11.5 feet of asphalt. The construction of curbing and sidewalk is also required. Note: The County Engineer may accept a paved asphalt pathway in lieu of sidewalk improvements proposed in this condition. It is anticipated that this pathway would be a minimum of 10 feet in width. HE Findings, Conclusions and Decision PE-1940-04 Page 35 14. The County Engineer has designated a Local Access Roadway Section for the improvement of Schafer Branch Road which is adjacent to the proposed development. This will require the addition of approximately 27 feet of asphalt along the frontage of the development and construction of a cul-de-sac at the south-west corner of the plat. The construction of curbing and sidewalk is required. The applicant will also be required to construct a 24-foot strip pave of Schafer Branch Road between Block 7 and Block 5 of the preliminary plat. Note: The County Engineer may accept a paved asphalt pathway in lieu of sidewalk improvements proposed in this condition. It is anticipated that this pathway would be a minimum of 10 feet in width. 15. The private road shall be improved to adopted Spokane County Road and Sewer Standards for private roads. Note: Any gates used or providing access on the private road shall be documented on road plans and shall be located in a manner acceptable to the County Engineer. The applicant shall also provide documentation to the County Engineer that the local Fire District has reviewed and accepted the location and function of the private gates. 16. All vested owners shall sign and record private road documents as prescribed by the Spokane County Engineer. These documents shall be reviewed and approved by the Spokane County Engineer prior to recording with the Spokane County Auditor. Recording numbers shall be referenced in the dedicatory language of the plat. 17. The final plat dedication shall state: "WARNING: Spokane County has no responsibility to build, improve,maintain or other wise service the private roads contained within or providing service to the property described in this plat. By accepting this plat or subsequently by allowing a building permit to be issued on property on a private road, Spokane County assumes no obligation for said private road and the owners hereby acknowledge that the County has no obligation of any kind or nature whatsoever to establish, examine, survey, construct, alter,repair, improve,maintain,provide drainage or snow removal on a private road. This requirement is and shall run with the land and shall be binding upon the owner, their heirs, successors or assigns including the obligation to participate in the maintenance of the private road as provided herein." 18. The proposed plat shall be improved to the standards set forth in Spokane County Resolution No. 1- 0298, as amended in 2003,which establishes regulations for roads, approaches, drainage and fees in new construction. 19. The County Engineer has examined the development proposal and determined that the impact of this proposal upon the existing County Road System warrants the dedication of additional right-of-way and the roadway improvements herein specified. 20. The applicant is advised that there may exist utilities, either underground or overhead, affecting the applicant's property, including property to be dedicated or set aside for future acquisition. Spokane County will assume no financial obligation for adjustments or relocation regarding these utilities. The applicant should contact the applicable utilities regarding responsibility for adjustment or relocation costs and to make arrangements for any necessary work. HE Findings, Conclusions and Decision PE-1940-04 Page 36 21. The applicant shall grant applicable border easements adjacent to Spokane County Right-of-Way per Spokane County Standards. 22. If the project is developed in phases, a phased road and drainage plan shall be prepared by a licensed Professional Engineer,which clearly show the phasing of the development. The plan must demonstrate that each phase of the development is in conformance with the applicable Spokane County road and drainage standards, and the Conditions of Approval of the plat. If the project is phased and one phase depends on another phase for access and/or stormwater treatment and disposal, the prior phase shall be completed, certified and accepted by Spokane County prior to the acceptance of plans for the dependent phase of the development. Spokane County will not release One-foot no access strips on public roads until the subject phase is completed, certified and accepted by Spokane County for maintenance. No access through a previous phase of the development will be allowed and no plans will be accepted by Spokane County for construction unless the prior phase is certified by the Sponsor's Engineer. 23. If it is revealed during site investigation, either through observations during field visits,historical data, or soil sampling/test pit exploration,that shallow bedrock and/or groundwater is found in the substrata, then there shall be a site investigation and study conducted by a qualified Geotechnical Engineer prior to submittal of the road and drainage plans. The report shall, at a minimum, address the feasibility of constructing basements within this development and identify those lots where basements can be properly constructed. Lots where basements and below grade level construction is prohibited shall also be identified. No groundwater sump pumps or gravity drains may be connected to the sanitary sewer for any of the lots in this plat or be discharged to public or private road surfaces. Suitable language shall be placed on the face of the plat identifying those lots where below grade construction is prohibited. All mitigating measures that may be recommended for lots approved for basements shall be a requirement of any building permits for said approved lots. 24. Erosion Control: A Temporary Erosion and Sedimentation Control(TESC)plan shall be prepared by a WA State licensed Professional Engineer and implemented throughout the duration of construction. The TESC plan shall be prepared using best management practices (BMP's) currently accepted within the Civil Engineering profession. The TESC plan shall include, at a minimum, a grading plan,location and details of silt control structures, and street cleaning program. Runoff from exposed areas must be filtered prior to discharging into a detention pond or evaporation pond. The TESC major structures (such as silt ponds, silt traps) shall be installed prior to other site work and the TESC measures shall be implemented and maintained throughout the duration of construction, including house construction. 25. Any part of the drainage system that lies outside of the public right-of-way will neither be maintained nor operated by Spokane County forces. Prior to plan acceptance by the County Engineer,the Sponsor shall provide a mechanism, acceptable to the County Engineer, for the perpetual maintenance of the stormwater management system. This mechanism shall also provide for the funding of routine maintenance and the replacement of the various components of the drainage system at the end of the service life of the respective components, and any other improvements that may be legally required in the future. An Operations and Maintenance Manual for the stormwater management system shall be prepared by the Sponsor's Engineer, and included in the project documents submitted to the County Engineer for acceptance, along with a discussion of the design life of the various components, a calculated annual cost for repair and maintenance, and a calculated replacement cost. Homeowners Associations are accepted by the Spokane County Engineer for carrying out the required maintenance functions and responsibilities. HE Findings, Conclusions and Decision PE-1940-04 Page 37 26. Developed volumes of stormwater shall be disposed of on-site. Any stormwater discharges from the development shall be controlled to pre-developed rates. The 2, 10, and 50-year storms shall be controlled to pre-developed flow rates and volumes for the detention facility, at a minimum. 27. The soils on-site appear to be a combination of soils that are pre-approved for drywells,per the Spokane County Guidelines for Stormwater Management, and soils that are not pre-approved for dry- wells. Since the proposed drainage system incorporates infiltration as a method of stormwater disposal in the design, there shall be a site investigation. 28. Full-scale drywell tests, according to Appendix I of the Spokane County Guidelines for Stormwater Management, are required to verify the infiltration rates utilized in the drainage design. The tests are to be conducted by or under the direct supervision of a qualified Geotechnical Engineer and shall be complete prior to project certification. 29. The proposed plat is located within a Critical Aquifer Recharge Areas (CARA) of high susceptibility to groundwater contamination. CARAS are those areas with a critical recharging effect on aquifers used for potable water. The treatment of stormwater runoff shall be provided for directly connected pollution generating impervious surfaces,including traveled ways and parking areas that are designated as high susceptibility or drain to an area of high susceptibility. The proposed plat shall protect these critical areas as required in the County Critical Areas Ordinance. The CARA provisions of the Critical Areas Ordinance replace the treatment requirements of the former Aquifer Sensitive Area(ASA) Overlay Zone. 30. Upon final plat approval, the Spokane County Engineer will issue a Transportation Concurrency Certificate for one hundred and two(102)PM peak hour trips for a 100-lot plat. 31. The proposal shall comply with current standards and laws relevant to stormwater drainage, including but not limited to Spokane County Code Sections 9.14.200, 9.14.202, 9.14.205, 9.14.207, 9.14.209, 9.14.210 and 9.14.215 (Resolution 1-1093, as amended). 32. Preservation of the Natural Location of Drainage System(s), to ensure that stormwater runoff can continue to be conveyed and disposed of in its natural location, shall be addressed in the drainage submittal and identified on the face of the plat prior to final plat acceptance. 33. The revised conceptual drainage report is conditionally approved,subject to the mitigation required by County Department of Building and Planning conditions of approval#16 and#17 above. SPOKANE COUNTY DIVISION OF UTILITIES 1. The dedication shall state: "Public sewers shall be constructed to provide for the connection of each parcel to the County's system of sewerage. The uses on properties within the project shall be required to connect to the sewer and pay applicable charges per the Spokane County Sanitary Sewer Ordinance. Sewer connection permits shall be required." 2. Public Sanitary Sewer easement shall be shown on the face of the plat, and the final plat dedication shall state: "The perpetual easement granted to Spokane County, its successors and assigns is for the sole purpose of constructing,installing, operating,maintaining,repairing, altering,replacing,removing, and all HE Findings, Conclusions and Decision PE-1940-04 Page 38 other uses or purposes which are or may be related to a sewer system. Spokane County, its successors and assigns at all times hereinafter, at their own cost and expense,may remove all crops,brush,grass or trees that may interfere with the constructing, installing, operating,maintaining,repairing, altering, replacing,removing and all other uses or purposes which are related to a sewer system. The grantor(s) reserves the right to use and enjoy that property which is the subject of this easement for purposes which will not interfere with the County's full enjoyment of the rights hereby granted; provided,the Grantor(s) shall not erect or construct any building or other structure or drill on the easement, or diminish or substantially add to the ground cover over the easement. The easement described hereinabove is to and shall run with the land." 3. The applicant shall submit expressly to the 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. 4. Sewer plans acceptable to the Division of Utilities shall be submitted prior to the finalization of the project. 5. Security shall be deposited with the Division of Utilities for the construction of the public sewer connection and facilities and for the prescribed warranty period. Security shall be in a foam acceptable to the Division of Utilities and in accordance with the Spokane County Sanitary Sewer Ordinance. 6. Security shall be submitted to the Division of Utilities prior to approval of Sewer Design Plans. 7. Any water service for this project shall be provided in accordance with the Coordinated Water System Plan for Spokane County, as amended. SPOKANE COUNTY AIR POLLUTION CONTROL AUTHORITY 1. Dust emissions during demolition, construction, and excavation projects shall be controlled. Appropriate measures shall include but are not limited to the use of water sprays, tarps, sprinklers or suspension of activity during certain weather conditions. 2. Measures shall be taken to avoid the deposition of dirt and mud from unpaved surfaces onto paved surfaces. If tracking or spills occur on paved surfaces,measures must be taken immediately to clean these surfaces. 3. Debris generated as a result of this project shall be disposed of by means other than burning. 4. All traveled surfaces (i.e. ingress, egress,parking areas, access roads, etc.) should be paved and kept clean to minimize dust emissions. 5. If objectionable odors result from this project, effective control apparatus and measures shall be taken to reduce odors to a minimum. HE Findings, Conclusions and Decision PE-1940-04 Page 39 6. Special attention shall be given to proper maintenance of diesel powered construction equipment to reduce the impact of diesel exhaust, a suspended carcinogen. 7. A Notice of Construction and Application for Approval is required to 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. The applicant shall contact SCAPCA for a Notice of Application. 8. A Notice of Intent must 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. SPOKANE COUNTY FIRE DISTRICT 8 1. The existing water system should be upgraded to a capability of supplying a sustained 1000 gallon per minute fire flow with a residual pressure of not less than 20 PSI. 2. Fire hydrants shall be installed with approximately 500-foot average spacing. All hydrants shall be capable of supplying the required 1000 GPM flow at 20 PST and meet other applicable standards. 3. Access roads shall meet County road standards. Parking on roadways shall not obstruct or prohibit the passage of large emergency vehicles. 4. If requested by Fire District 8, the applicant shall assist the district in developing an emergency evacuation plan for the proposal. 5. Common areas shall be kept in a manner to resist the ignition and spread of fire. A minimum of a 30-foot green space shall be constructed to buffer homes from the threat of fire. 6. Covenants shall be established to restrict parking on streets so as not to hinder access by emergency vehicles. 7. The covenants shall require that home construction be of fire resistive roofmg and siding materials. SPOKANE COUNTY FIRE DISTRICT 1 1. The applicant shall provide a water plan showing the installation of new fire hydrants spaced a maximum of 600 feet apart and located at the corners,when possible. 2. Road names shall be consistent with established names in place. 3. Fire apparatus turnarounds are adequate. HE Findings, Conclusions and Decision PE-1940-04 Page 40 CITY OF SPOKANE VALLEY PUBLIC WORKS DEPARTMENT 1. If acceptable to the City of Spokane Valley, the applicant,prior to final plat approval, shall construct a 5-foot wide asphalt pedestrian pathway on the south side of 44th Avenue from the east edge of the plat boundary to south Farr Road. The pathway shall be offset at least five(5)feet from the existing asphalt edge on 44th Avenue, subject to accommodation of drainage and construction of the pathway within the existing right of way. Portions of the pathway that must be located closer than the 5- foot separation shall have a thickened edge. The elevation of the north edge of the pathway shall otherwise be constructed level with the edge of the existing asphalt, with the south edge constructed at a 2%down gradient. 2. If acceptable to the City of Spokane Valley, the applicant, upon completion of the first phase of the final plat, the applicant shall construct a similar asphalt pedestrian pathway along 44th Avenue from south Farr Road east to Woodruff Road. 3. The applicant and the City may agree to alternative conditions or requirements for providing pedestrian access along 44th Avenue between the site and Woodruff Road. The conditions herein are not intended to preclude the City from requesting alternative improvements for pedestrian access along 44th Avenue, such as curb and sidewalk, in the review of the applicant's adjacent proposal located to the east. 4. The applicant's responsibility for constructing an off-site pedestrian pathway under this decision may be mitigated by road improvements required as a result of the approval of the applicant's adjacent proposal,formation of a road improvement district by the City, or the installation of road improvements along 44th Avenue in conjunction with the extension of public sewer to the area by 2009. SPOKANE REGIONAL HEALTH DISTRICT 1. The fmal plat shall be designed as indicated on the preliminary plat of record and/or any attached sheets as noted. 2. Appropriate utility easements shall be indicated on copies of the preliminary plat of record distributed by the County Building and Planning Department to the utility companies, the Spokane County Engineer, and the Spokane Regional Health District. Written approval of the easements by the utility companies must be received prior to the submittal of the fmal plat. 3. The sewage disposal method shall be as authorized by the Director of Utilities, Spokane County. 4. Water service shall be coordinated through the Director of Utilities, Spokane County. 5. Water service shall be by an existing public water supply when approved by the Regional Engineer (Spokane), State Department of Health. 6. Prior to filing the final plat, the sponsor shall demonstrate to the satisfaction of the Spokane Regional Health District that an adequate and potable water supply is available to each lot of the plat. HE Findings, Conclusions and Decision PE-1940-04 Page 41 7. Prior to filing the final plat, the sponsor shall present evidence that the plat lies within the recorded service area of the water system proposed to serve the plat. 8. The water purveyor shall approve a plan for water facilities adequate for domestic use, domestic irrigation use, and fire protection use. The water plan must have been approved by the fire protection district and the appropriate health authorities. The health authorities,water su pp lier(purveyor),, and the fire protection district will certify,prior to the filing of the final plat, on the face of said water plan that the plan is in conformance with their requirements and will adequately satisfy their respective needs. Said water plan and certification will be drafted on a transparency suitable for reproduction. 9. The purveyor will also certify prior to filing the final plat on a copy of said water plan that appropriate contractual arrangements have been made with the plat sponsor for construction of the water system, in accordance with the approved plan and time schedule. The time schedule will provide, in any case, for completion of the water system and inspection by the appropriate health authorities prior to application for building permits within the plat. The contractual arrangements will include a provision holding Spokane County, the Spokane Regional Health District, and the purveyor harmless from claims by any lot purchaser refused a building permit due to failure of the plat sponsor to satisfactorily complete the approved water system. 10. A public sewer system will be made available for the plat and individual service will be provided each lot prior to sale. The use of individual on-site sewage disposal systems shall not be authorized. 11. A statement shall be placed in the dedication to the effect that: "A public sewer system will be made available for the plat and individual service will be provided to each lot prior to sale. The use of individual on-site sewage disposal systems shall not be authorized." 12. The dedicatory language on the plat shall state: "The use of private wells and water systems is prohibited." 13. The final plat dedication shall contain the following statement: "The public water system,pursuant to the Water Plan approved by county and state health authorities,the local fire protection district, the County Building and Planning Department and water purveyor, shall be installed within this subdivision and the applicant shall provide for individual domestic water service as well as fire protection to each lot prior to sale of each lot and prior to issuance of a building permit for each lot." DATED this 5th day of August,2005 SPOKANE COUNTY HEARING EXAMINER Michael . Dempsey, WSBA#8235 i BE Findings, Conclusions and Decision PE-1940-04 Page 42 NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Spokane County Resolution No. 96-0171, the decision of the Hearing Examiner on an application for a preliminary plat is final and conclusive unless within twenty-one(21) calendar days from the issuance of the Examiner's decision, a party with standing files a land use petition in superior court pursuant to chapter 36.70C RCW. Pursuant to chapter 36.70C RCW, the date of issuance of the Hearing Examiner's decision is three(3) days after it is mailed. This Decision was mailed by certified mail to the Applicant, and by first class mail to other parties of record, on August 5, 2005. The date of issuance of the Hearing Examiner's decision is therefore August 8, 2005, counting to the next day when the last day for mailing falls on a weekend or holiday. THE LAST DAY FOR APPEAL OF THIS DECISION TO SUPERIOR COURT BY LAND USE PETITION IS AUGUST 29,2005. The complete record in this matter,including this decision, is on file during the appeal period with the Office of the Hearing Examiner, Third Floor,Public Works Building, 1026 West Broadway Avenue, Spokane, Washington, 99260-0245, (509)477-7490. The file may be inspected Monday-Friday of each week, except holidays,between the hours of 8:30 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. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. BE Findings, Conclusions and Decision PE-1940-04 Page 43