App-01-04 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Appeal of an Administrative Determination, )
issued by the City Department of Community ) FINDINGS OF FACT,
Development; ) CONCLUSIONS OF LAW,
Appellant: Hospice of Spokane ) AND DECISION
File No. APP-01-04 )
This matter coming on for public hearing on May 5, 2004, on the appeal filed by Hospice
of Spokane of an administrative determination rendered by the City Department of Community
Development, regarding the use classification of a hospice care center and associated
administrative building in the Urban Residential-3.5 (UR-3.5) zone; the Hearing Examiner, after
review of the administrative interpretation, the appeal and the entire record, and finding good
cause therefore, hereby makes the following Findings of Fact, Conclusions of Law and Decision:
I. FINDINGS OF FACT
1. On March 2, 2004, the appellant, Hospice of Spokane,through its attorney, Philip S.
Brooke, submitted a letter to Marina Sukup,the Director of the City Community Development
Department("Director"), requesting an administrative interpretation as to whether a hospice care
center is a permitted use in the Urban Residential-3.5 (UR-3.5) zone.
2. On May 5, 2004, the Director issued a written determination, consisting of an
administrative interpretation issued under Section 14.500.000 of the City Zoning Code,
concluding that the proposed hospice care center was not a permitted use in the UR-3.5 zone.
3. On May 18, 2004, Hospice of Spokane timely filed a written appeal of the administrative
determination to the City Hearing Examiner.
4. On June 24, 2004, the Hearing Examiner conducted a public hearing on the administrative
appeal. The requirements for notice of public hearing for the appeal were met.
5. The following person testified at the public hearing:
Marina Sukup, Director Ann Koepsell
Department of Community Development Executive Director
City of Spokane Valley Hospice of Spokane
11707E Sprague Ave PO Box 2215
Spokane Valley, WA 99206 Spokane, WA 99210-2215
Craig Winder Joe Wetzler
Attorney at Law 424 N. Moore
717 W. Sprague Avenue, Suite 1200 Spokane Valley, WA 99037
Spokane, WA 99206
HE Findings, Conclusions and Decision APP-01-04 Page 1
Shirley Torgrimson
519 N. Conklin
Spokane Valley, WA 99037
6. The Examiner heard the proposal pursuant to City Ordinance No. 03-057, as amended by
City Ordinance Nos. 03-081 and 04-012; and pursuant to the City Hearing Examiner Rules of
Procedure.
7. The Hearing Examiner takes notice of the City Comprehensive Plan, City Zoning Code,
County Zoning Code, other applicable development regulations, and prior land use decisions in
the vicinity.
8. The record includes the documents in the project file at the time of the public hearing,the
documents and testimony submitted at the public hearing, and the items taken notice of by the
Hearing Examiner.
9. The site of the proposed hospice center is located along the west side of Conklin Road, at
the northerly terminus of Sonora Road and the easterly terminus of Alki Avenue, in the City of
Spokane Valley. The site is 10 acres in size and irregular in shape.
10. The site is addressed at 611 N. Conklin Road, City of Spokane Valley; is referenced as
County tax parcel no. 45133.0115; and is located in the SW 1/4 of Section 13, Township 25N,
Range 44 EWM, in Spokane County, Washington.
11. The site plan submitted with the appellant's request for an administrative interpretation
illustrates a 16,000-square foot"hospice house" attended by 34 parking spaces, a 22,500-square
foot"future administrative building", and an approximately 110-square foot"future conference
center"in two optional locations on the site. Primary access for such uses is shown via Conklin
Road. The record indicates the hospice center would have 20 beds.
12. The City Arterial Road Plan designates Broadway Avenue, located 150 feet north of the
site, as an Urban Minor Arterial in the area; and designates Sullivan Road and Sprague Avenue,
located one-third(1/3)mile west and south of the site, respectively, as Urban Principal Arterials.
The other roads in the vicinity are Urban Local Access roads.
13. The site is zoned UR-3.5 and is designated in the Low Density Residential category of the
Comprehensive Plan. The land immediately surrounding the site is zoned UR-3.5 and dominated
by single-family housing; except for a small parcel located between the site and Broadway
Avenue, which is zoned Urban Residential-22 (UR-22).
14. Intensive commercial uses and zoning are found in the area along Sullivan Road, Sprague
Avenue and the north side of Broadway Avenue. A retirement center, on land zoned UR-22, is
located one (1)block south of the site along the south side of Valleyway Avenue.
HE Findings, Conclusions and Decision APP-01-04 Page 2
15. The appellant, Hospice of Spokane, indicated that in 2000 it approached Spokane County
regarding development of a hospice center on the site, that a pre-development conference was
held with the County on February 15, 2000, and that the County informally advised the appellant
that the proposed hospice care center would be considered a"hospital" for zoning purposes. The
appellant indicated that in reliance on such position, it purchased the site and spent up to
$300,000 on the design of the project. The appellant did not apply for a building permit for the
proposed use.
16. Effective January 15, 2002, Spokane County implemented a new comprehensive plan,
Urban Growth Area(VGA)boundaries and County Phase I Development Regulations; pursuant
to the State Growth Management Act. See County Resolution Nos. 2-0037 and 2-0470. The
County Phase I Development Regulations designated the area in the UGA, and generally retained
the zoning of the site and neighboring properties.
17. On March 31, 2003, the City of Spokane Valley was incorporated in the area; and adopted
by reference the County's comprehensive plan, zoning code, Phase I Development Regulations
and other development regulations,with certain minor variations. The City retained the zoning
of the site and neighboring land.
18. Hospice of Spokane, in its March 2, 2004 request for an administrative interpretation,
advised that it had decided to forgo development of a conference center on the site. The
administrative interpretation issued by the Director, accordingly, did not address the conference
center.
19. The administrative interpretation issued by the Director on May 5, 2004 concluded that the
hospice care center most resembled a"nursing home" or"convalescent home", which uses are
not permitted in the UR-3.5 zone. The interpretation also concluded that the proposed
administration building was not subordinate or incidental to the hospice care center; should not
be classified as an accessory structure or accessory use to the hospice care center; and should be
considered a"business office"or"professional office",which uses are not permitted in the UR-
3.5 zone.
20. Prior to and at the public hearing, the appellant indicated that it had decided to forgo
construction of an administrative building on the site. The appellant has submitted an
application to rezone the site to the Urban Residential-7 (UR-7) zone,which zone outright
permits nursing homes and convalescent homes, in the event the current appeal is not upheld.
21. Hospice of Spokane contended at the public hearing that among the uses listed in the
Residential Zones Matrix set forth in Chapter 14.605 of the Zoning Code, a hospice care center is
most similar to a"hospital", which is a permitted use in the UR-3.5 zone.
22. Section 14.500.000 of the Zoning Code authorizes the submittal of written requests to the
City Department of Community Development for rulings and/or interpretations as to the
meaning, intent or proper general applications of the provisions of the Zoning Code and impacts
of the application of the Code to development or use of land or structures by any interested
HE Findings, Conclusions and Decision APP-01-04 Page 3
citizen or public official. Section 14.500.000 of the Zoning Code requires the Director of the
Department to submit a ruling or interpretation in writing to the requesting party, subject to
appeal of such determination under Section 14.412.041 of the Zoning Code.
23. Sections 14.412.041 and 14.412.042 of the City Zoning Code, which address the appeal of
administrative determinations, are superseded by City Ordinance No. 03-057, as amended by
City Ordinance Nos. 03-081 and 04-012; and City Ordinance No. 03-60; to the extent the zoning
code sections are inconsistent with the ordinances. Such ordinances provide for hearing of the
appeal of administrative determinations by the Hearing Examiner, and appeal of the Hearing
Examiner's decision to superior court under chapter 36.70C RCW.
24. Section 14.604.160 of the City Zoning Code provides that mixed uses or sites, or any use
not specifically mentioned in the zoning matrix for a particular zone, "...about which there is any
question...", shall be administratively classified by comparison with other uses identified in the
zoning matrix. If a proposed use resembles identified uses in terms of intensity and character,
and is consistent with the purpose of the Zoning Code and the zone classification involved, the
use is considered a permitted or prohibited use within the zone or associated matrix, subject to
the development standards for the use it most nearly resembles.
25. The purposes of the City Zoning Code are set forth in Section 14.100.104 of the Zoning
Code. Such section indicates that the general purpose of the Zoning Code is to promote the
health, safety and general welfare and to meet the requirements of RCW 36.70.560; and states
that the provisions of the Code are to be interpreted as to carry out and implement the purpose
and intent of the Comprehensive Plan and the general plans for physical development adopted by
the legislative body.
26. Section 14.100.104 of the City Zoning Code states that the Zoning Code is specifically
intended, in pertinent part, to encourage the orderly growth of the County,promote compatible
uses of land, conserve and stabilize individual property values,provide desired levels of
population density and intensity of land use, facilitate adequate levels of community services and
utilities, conserve and protect amenities, provide workable relationships between land uses and
the transportation system, and keep pollution at or below acceptable levels.
27. Section 14.616.100 of the City Zoning Code indicates that the purpose and intent of the
UR-3.5 zone, in pertinent part, is to promote areas of primarily single-family residential use in an
urbanized setting, having a high level of public services. This includes service by public water
and sewer, paved roadways, and curb and sidewalks. This section was not amended at the time
the Phase I Development Regulations were adopted by the County and City, and contains an
obsolete statement that the UR-3.5 zone is intended to implement the"Urban" category of the
Comprehensive Plan.
28. The implementing zones for the Low Density Residential category of the Comprehensive
Plan under the Phase I Development Regulations are the UR-3.5 and Urban Residential-7 (UR-7)
zones. The UR-3.5 implements only the Low Density Residential category under such
regulations.
HE Findings, Conclusions and Decision APP-01-04 Page 4
29. The Residential Zones Matrix set forth in Chapter 14.605 of the Zoning Code categorizes
uses as "residential", "public and semi-public" and"agricultural, sivicultural and agricultural-
related". The Matrix lists whether the uses are permitted,prohibited,permitted through a
conditional use permit (CUP), permitted as an accessory use, or permitted subject to special
development standards.
30. The UR-3.5 zone permits such"residential"uses as a single-family home, duplex,
community residential facility(8 or less residents), community treatment facility(8 or less
residents, conditional use permit required), dormitory, fraternity/sorority,transitional community
facility(8 or less residents, conditional use permit required).
31. The UR-3.5 zone prohibits such"residential"uses as a community residential facility(9-25
residents), community treatment facility(9-20 residents),multi-family dwelling,
retirement/elderly apartment building,nursing home/convalescent home, corrections facilities of
all types, and transitional community facility(9-20 residents).
32. The UR-3.5 zone permits such"public and semi-public"uses as a hospital, family day care
home, mini-day care center(in a dwelling), day care center in a church or school, (subject to
special standards), schools (below high school level), community hall/club/lodge, church and
parsonage, community recreational facility(as accessory use, subject to specific performance
standards), community swimming pool, community transit center, fire station, golf course and
library.
33. The UR-3.5 zone prohibits such"public and semi-public"uses as a sanitarium, day care
center (in church or school), mini-day care center(not in a dwelling), high school, college,
business or professional offices, medical office and exercise facility/gym athletic club.
34 The City Zoning Code does not define a"hospice care center". The administrative
interpretation issued by the Director attempts to describe such use by relying on the definition of
"hospice"provided by Webster's New Collegiate Dictionary,pursuant to Section 14.300.100 of
the Zoning Code. However, as the appellant correctly points out, such definition is irrelevant
since it is the actual "hospice care center"use that must be compared to the uses listed in the
Residential Zones Matrix.
35. RCW 70.127.010(12) defines a"hospice care center" as "...a homelike, noninstitutional
facility where hospice services are provided, and that meets the requirements for operation under
RCW 70.127.280."
36. RCW 70.127.010(13) defines "hospice services"to mean"...symptom and pain
management provided to a terminally ill individual, and emotional, spiritual, and bereavement
support for the individual and family in a place of temporary or permanent residence under the
direction of an interdisciplinary team composed of at least a nurse, social worker,physician,
spiritual counselor, and a volunteer."
HE Findings, Conclusions and Decision APP-01-04 Page 5
37. RCW 70.127.280 requires hospice care centers to be operated by a licensed hospice
agency,which may provide general inpatient care, continuous home care, routine home care, or
inpatient respite care. Such statute requires issuance of a certificate of need from the State Board
of Health, limits the maximum number of beds in a hospice care center to 20 and allows a
hospice care center to either be freestanding or part of another building. The hospice center must
minimally provide adequate space for family members to visit,meet, cook, share meals and stay
overnight with patients or clients; and for a hospice center delivering inpatient services, have a
registered nurse present 24 hours a day, seven days a week
38. The State Department of Health regulates home health, hospice and home care agencies
under chapter 70.127 RCW and chapter 246-335 WAC. Hospitals, nursing homes and other
facilities and institutions must comply with chapter 70.17 RCW, except when providing services
to persons residing within the facility or institution.
39. Section 14.300.100 of the Zoning Code defines a"hospital" as an` ...institution licensed by
the state agencies under the provisions of law to offer facilities and temporary services in
surgery, obstetrics, and general medical practice for human patients who are ill or injured."
40. Section 14.300.100 of the Zoning Code defines a"nursing home" as a"... place licensed
by the State Department of Social and Health Services as a"nursing home" or institution which
operates or maintains facilities providing convalesence and/or chronic care for a period in excess
of twenty-four(24 hours) for three (3) or more patients who are not related to the operator by
blood or marriage or who by reason of illness or infirmity are unable to properly care for
themselves."
41. Section 14.300.100 of the Zoning Code defines a"convalescent home" as a"...residential
facility licensed by the State or County to provide special care and supervision to convalescents,
invalids, and/or aged persons,but where no persons are kept who suffer from mental sickness or
disease or physical disorder or ailment which is normally treated within sanitariums or hospitals.
Special care in such a facility includes,but is not limited to, nursing, feeding, recreation,
boarding and other personal services."
42. The definition of"nursing home"in RCW 18.51.010(1) is substantially similar to the
definition of such term in the Zoning Code. The Washington State Department of Social and
Health Services regulates nursing homes and similar types of convalescent facilities,pursuant to
chapter 18.51 RCW and chapter 388-97 WAC.
43. RCW 70.41.020 defines "hospital"to mean"...any institution,place,building, or agency
which provides accommodations, facilities and services over a continuous period of twenty-four
hours or more, for observation, diagnosis or care, of two or more individuals not related to the
operator or who are suffering from illness, injury, deformity or abnormality, or from any other
condition for which obstetrical, medical, or surgical services would be appropriate for care or
diagnosis...". Such definition goes on to expressly exclude nursing homes regulated under
chapter 18.51 RCW,but does not mention a"hospice care center".
HE Findings, Conclusions and Decision APP-01-04 Page 6
44. The definitions of"hospital", "nursing home" and"convalescent home"have not been
amended since the County Zoning Code took effect on January 1, 1986, which definitions were
made part of the City Zoning Code when the City adopted the County Zoning Code by reference
in 2003. Significant changes have taken place in medical and retirement facilities, and in
Washington statutes and administrative regulations regulating such facilities, over the past 20
years.
45. Hospice care centers appear to first have been recognized under state regulations in 1981,
with the adoption of chapter 246-321 WAC. Such regulations characterized hospice care centers
as specialized types of health care facilities coming within the hospital licensing and regulation
provisions set forth in chapter 70.41. Chapter 246-321 WAC was repealed in 1997.
46. In 1988, chapter 70.127 RCW was adopted,which addressed hospice services but not
hospice care centers. In 1999, WAC 246-320-765 was adopted,which addressed the licensing
requirements for a"long-term care and hospice unit" of a hospital.
47. Effective January 1, 2002, chapter 70.127 RCW was amended to address "hospice care
centers". Effective October 1, 2002, chapter 246-335 WAC was adopted to implement chapter
780.127 RCW, and specifically addresses hospice care centers. Between the repeal of chapter
246-321 WAC in 1997 and the adoption of chapter 246-335 WAC in 2002, hospice care facilities
were reviewed and licensed by the State Department of Health under WAC 246-320-765,
relating to the "long-term care and hospice unit"of a hospital. See letter dated January 19, 2000
from State Department of Health to Jeff Warner of ALSC Architects.
48. Some neighboring property owners testified in favor of the development of a hospice care
center on the site, subject to certain concerns such as traffic impacts. The administrative
interpretation correctly points out that the characteristics of the land uses surrounding the current
site are irrelevant to determining how to classify the hospice care center use under the
Residential Zones Matrix of the Zoning Code.
49. The appellant submitted expert testimony through its Executive Director, Ann Koespell, on
the regulation and characteristics of hospice care centers,hospital, nursing homes and similar
facilities.
50. The average stay in a hospice care center is approximately 14 days, and hospice care
centers typically deal with the last 2-3 weeks of a terminally ill patient's life. Prior to the
existence of hospice care centers, terminally ill patients in the last stages of life were treated
almost exclusively in hospitals. See testimony of Ann Koepsell.
51. The average stay in a nursing home or boarding home, which facilities are regulated by the
Washington State Department of Social and Health Services, is 5-6 years, and the level of care is
typically much less intensive than in a hospice care center. Nursing homes can provide hospice
services, but generally do not provide end of life terminal care like a hospice care center or
hospital.
HE Findings, Conclusions and Decision APP-01-04 Page 7
52. A hospice care center, considering that it is limited to a maximum of 20 patient beds, is a
less intensive use than either a hospital or a nursing home, which uses typically accommodate
many more patient or residents.
II. CONCLUSIONS OF LAW
1. The appellant's application for an administrative determination under Zoning Code
14.504.000 was properly submitted.
2. The appellant's appeal to the Hearing Examiner of the administrative determination
rendered by the Director of the City Department of Community Development was properly and
timely submitted. The appeal does not apply to the future administration building or the future
conference center illustrated on the site plan submitted for the administrative interpretation, since
the appellant indicated that it had decided to forgo development of such facilities at the current
time.
3. The appellant had standing to appeal the administrative determination to the Hearing
Examiner.
4. The character and intensity of a hospice care center is more similar to a hospital,which is
primarily a medical facility, than to a nursing home, a primarily residential facility; considering
the length of stay, the level of medical care and the licensing authority for a hospice care center.
5. Considering the"homelike"character of a hospice care center and their relatively small
size, a hospice care center located in a UR-3.5 zone substantially serves the general purpose of
the City Zoning Code and the specific intent of the Zoning Code, set forth in Section 14.100.104
of the Zoning Code; as well as the purpose of the UR-3.5 zone set forth in Section 14.616.100 of
the Zoning Code.
6. While a close issue, and giving due deference to the opinion of the City Department of
Community Development as the agency responsible for administering and enforcing the City
Zoning Code, the administrative interpretation was nevertheless erroneous in concluding that a
hospice care center is not a permitted use in the UR-3.5 zone.
7. The proposed"hospice care center"use most nearly resembles a"hospital" use, among the
use classifications listed in the Residential Zones Matrix set forth in chapter 14.605 of the City
Zoning Code. The proposed hospice care center use is a permitted use in the UR-3.5 zone,
subject to the development standards applicable to a hospital in the UR-3.5 zone and City Zoning
Code.
8. The appeal should be granted and the administrative interpretation reversed.
HE Findings, Conclusions and Decision APP-01-04 Page 8
III. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the appeal is hereby
granted and the administrative determination is reversed. The proposed hospice care center shall
be considered a permitted use in the UR-3.5 zone, subject to the development standards for a
"hospital" in the UR.3.5 zone and City Zoning Code.
DATED this 23rd day of July, 2004
SPOKANE COUNTY HEARING EXAMINER
(Tr
Mich el C. Dempsey, WSBA#8205' W
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to City Ordinance No. 03-057, as amended by City Ordinance Nos. 03-081 and
04-012,the decision of the Hearing Examiner on the appeal of an administrative determination, 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 July 23, 2004. The date of issuance of the Hearing Examiner's decision is
therefore July 26, 2004. THE LAST DAY FOR APPEAL OF THIS DECISION TO
SUPERIOR COURT BY LAND USE PETITION IS AUGUST 16,2004.
The complete record in this matter, including this decision, is on file during the appeal
period with the Office of the Hearing Examiner, Third Floor,Public Works Building, 1026 West
Broadway Avenue, Spokane, Washington, 99260-0245, (509) 477-7490. The file may be
inspected during normal working hours, listed as Monday-Friday of each week, except
holidays,between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period, the file may be
inspected at the City of Spokane Valley Department of Community Development, Division of
Current Planning, 11707 E. Sprague Avenue, Spokane Valley, WA. Copies of the documents in
the record will be made available at the cost set by City of Spokane Valley Ordinance.
Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation
for property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision APP-01-04 Page 9