SUB-12-03_PUD-5-03_REZ-9-03_VAR-3-03 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Preliminary Plat of Hill's Haven Estates; )
Planned Unit Development (PUD) Overlay )
Zone; Zone Reclassification from UR-3.5 ) FINDINGS OF FACT,
to UR-7 Zone; and Variances from Setback ) CONCLUSIONS OF LAW,
and PUD Open Space Requirements; ) AND DECISION
Applicant: Greg Arger )
File No. SUB-12-03/PUD-5-03/REZ-9-03/ )
VAR-3-03 )
This matter coming on for public hearing on July 24, 2003,the Hearing Examiner, after
review of the subject applications 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. The subject applications seek approval of the preliminary plat of Hill's Haven Estates, to
subdivide approximately 4.93 acres of land into 4 two-family(duplex) lots, 14 lots for single-
family dwellings, and 3 common open space tracts; a Planned Unit Development(PUD) Overlay
zone; a zone reclassification from the Urban Residential-3.5 (UR 3.5) zone to the Urban
Residential-7 (UR-7) zone; a variance from flanking street yard setback requirements in the UR
-
7 zone; a variance from the 10% open space requirement of the PUD Overlay zone; and a
reduction of requested road improvements along 10th Avenue.
2. The site is located between Eighth and 10th Avenues, south of the intersection of Eighth
Avenue and Rees Road, within the SW 1/4 of Section 23, Township 25 North, Range 44 EWM,
Spokane County, Washington.
3. The site is currently referenced as County Assessor's tax parcel no. 45233.0402, and has an
address of 14306 E. 8th Avenue, Spokane Valley, Washington. The site is legally described as
the West 1/2 of Tract 147, of Vera,per plat recorded in Volume"0"of Plats, Page 30, records of
Spokane County Auditor, in Spokane County, Washington.
4. The applicant for the proposal is Greg Arger, 300 N.Mullan Rd., Suite 204, Spokane
Valley, WA 99216. The site owner is Ethyl Sullivan Hill Estate c/o Marilyn Feather, 13702 E.
12th Avenue, Spokane Valley, WA 99201.
5. The subject applications were submitted as complete on June 23, 2003. On July 8, 2003,
the Spokane Valley Community Development Current Planning Division issued a Mitigated
Determination of Nonsignificance (MDNS) for the proposal.
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6. The Hearing Examiner conducted a site visit on July 22, 2003, and conducted a public
hearing on the proposal on July 24, 2003. The requirements for notice of public hearing were
met.
7. The Hearing Examiner heard the proposal pursuant to the City Ordinance No 57 and the
City Hearing Examiner Rules of Procedure.
8. The following persons testified at the public hearing:
Micki Harnois, Division of Current Planning Dick Thiel, City Engineer
City of Spokane Valley City of Spokane Valley
11707 East Sprague Avenue 11707 East Sprague Avenue Suite 106
Spokane Valley, WA 99206-6110 Spokane Valley, WA 99206
Greg Arger Prokey Arger
300 N. Mullan Rd., Ste. 204 300 N. Mullan Rd., Ste. 204
Spokane Valley, WA 99216 Spokane Valley, WA 99216
Cherlyn Rose Al Walls
921 S. Best Rd. 14318 E. 10th Ave.
Spokane Valley, WA 99037-8611 Spokane Valley, WA 99037
Marilyn Feather
13702 E. 12th Avenue
Spokane Valley, WA 99216-0621
9. The Hearing Examiner takes notice of the City Comprehensive Plan, City Zoning Code,
City Subdivision Ordinance, 2001 Spokane County Standards for Road and Sewer Construction
(adopted by City), City Code, other applicable development regulations, and prior land use
decisions in the vicinity.
10. The record includes the documents in File No SUB-12-03/PUD-5-03/REZ-9-03/VAR-3-03
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.
11. The site is 4.93 acres in size, is relatively flat in topography, and slopes gently from north to
south. An existing home, which is currently being occupied, and a detached garage, are found in
the northwest corner of the site, with access off Eighth Avenue. A barbed wire fence is located
along the west boundary of the site.
12. The preliminary plat map/preliminary PUD site plan of record("map/site plan") submitted
on June 25, 2003 illustrates division of the site into 14 lots for single-family dwellings,with lots
ranging from 8,856 to 9,576 square feet in size, and four(4) duplex lots, on lots ranging from
10,931 to 11,520 square feet in size. The duplex lots are located in the south end of the proposal.
The existing residence and detached garage on the site would be removed for site development.
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13. The density(net) of the proposal, based on a net acreage of 4.14 acres and a total of 22
dwelling units in the preliminary plat, is 5.31 dwelling units per acre. The preliminary plat map
and the Staff Report contain erroneous figures for the density(net) of the proposal. The Phase I
Development Regulations limit the maximum residential density permitted in the UR-7 zone,
pursuant to a rezone for new development to six (6) dwelling units per acre.
14. The map/site plan illustrates a total of 11,564 square feet of common open space, including
two strips of common open space along Eighth Avenue and a strip of common open space
adjacent to 10th venue. The percent of common open space in the PUD Overlay zone is 5.38%.
The variance application requests a variance from the 10% common open space requirement of
the PUD Overlay zone.
15. The variance application also requests a variance from the flanking street yard setback
requirements of the UR-7 zone, to allow a setback of"...30 feet on west and 35 feet east from
centerline..."of 10th Avenue, instead of a flanking street yard setback of 55 feet from the
centerline of 10th Avenue (30 feet from 10th Avenue) applicable under the UR-7 zone.
16. The proposed setback variance equates to a 5-foot setback from 10th Avenue for Lot 9,
Block 1 of the proposal,in place of the 30-foot setback from 10th Avenue required by the UR-7
zone. However, the map/site plan states and illustrates a flanking street yard setback of 10 feet
from 10th Avenue for such lot,which distance conflicts with the proposed variance.
17. The proposed setback variance equates to a variable setback of 10-14 feet from 10th
Avenue (from west to east) for the common open space tract area located in the southeast corner
of the site. The flanking street yard setback required for Lot 9, Block 2 of the proposal by the
UR-7 zone equates to a setback of 15.5 feet from the south boundary of such lot. The map/site
plan states and illustrates a uniform flanking street yard setback of 10 feet from 10th Avenue for
such lot.
18. The map/site plan indicates a minimum side yard setback of five (5) feet for all lots in the
preliminary plat/PUD,whereas the UR-7 zone requires a side yard setback of five (5) feet per
story. At the public hearing, the applicant indicated that the duplexes would be single-story,but
did not address the building height of the single-family homes on the site. The map/site plan
indicate that the single-family homes in the project would have a 5-foot side yard, and the
environmental checklist submitted for the project indicates that the single-family homes in the
proposal would not exceed two (2) stories.
19. The map/site plan lists a rear yard setback of 20 feet, while the UR-7 zone only requires a
rear yard setback of 15 feet.
20. The variance application requests relief from the requirements of the County/City Standards
for Road and Sewer Construction,regarding the additional roadway width, curb, gutter and
sidewalk improvements for 10th Avenue requested by the City Engineer. Such request does not
represent a variance under the City Zoning Code,but rather an objection to the conditions for
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approval recommended by City Engineering, and/or a design deviation request to the City
Engineer under the Standards for Road and Sewer Construction.
21. The lot frontages in the preliminary plat/PUD range from 59 feet to 64.8 feet for the
proposed single-family dwellings, and from approximately 72 feet to 78 feet for the proposed
duplex lots. The UR-7 zone requires minimum frontages of 65 feet and 90 feet, respectively, for
single-family dwellings and duplexes;but allows minimum frontages of 50 feet for both single-
family dwellings and duplexes in a PUD Overlay zone.
22. Effective January 1, 1991, the zoning of the site was reclassified from its zoning under the
now expired County Zoning Ordinance to the Urban Residential-3.5 (UR-3.5) zone,pursuant to
the Program to Implement the Spokane County Zoning Code.
23. On June 28,2001, the Hearing Examiner approved a preliminary plat to subdivide the site
into 14 lots for single-family dwellings,under the UR-3.5 zone. See decision in County File No.
PE-1884-01. The preliminary plat was never finalized.
24. Effective January 15, 2002, Spokane County implemented a new comprehensive plan,
Urban Growth Area(UGA) boundaries and Phase I Development Regulations,pursuant to the
GMA. The Phase I Development Regulations designated the site and area in the UGA, and
retained the zoning of the site and neighboring properties.
25. On March 31, 2003,the subject property and surrounding land were officially incorporated
into the City of Spokane Valley. On the same date, the City adopted by reference the County
Comprehensive Plan, Subdivision Ordinance, Zoning Code, Phase I Development Regulations,
Hearing Examiner Rules of Procedure, and other development regulations,with certain revisions.
The City also adopted a hearing examiner ordinance.
26. The land surrounding the site is zoned UR-3.5, except for four(4) lots zoned UR-7 lying
directly north and northeast of the site across Eighth Avenue, which are developed for"zero lot
line" duplexes. The residential subdivision located directly east of the site,which was platted in
1985, is of the same size as the proposal, and is developed with duplexes on 28 lots. The
residential subdivision is divided into lots slightly larger than those in the proposal, and is
developed with single-family residences.
27. The land lying southerly of the site is developed with single-family residences on parcels of
various size, including both urban-sized and acreage parcels. Two single-family residential lots
located directly south of the west half of the site, across 10th Avenue,were created through a 3-
lot short plat (SP-1233-00) recorded on September 1, 2000, and are somewhat larger than the lots
in the current project.
28. The County Comprehensive Plan designates Eighth Avenue adjacent to the site and Adams
Road to the east as Urban Minor Arterials, and designates Evergreen Road to the west as an
Urban Principal Arterial. A few years ago, Evergreen Road,north of Sprague Avenue, was
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widened to a 5-lane section, including center turn lane; and a new freeway interchange was
installed at Evergreen Road and Interstate 90. The City intends to improve Evergreen Road
south of Sprague Avenue in the near future, including widening such road to a 5-lane section
south of Eighth Avenue, and to a 3-lane road section between Eighth and 16th Avenues. This
would include the addition of curb and sidewalk.
29. Evergreen Road and Eighth Avenue in the vicinity are currently 2-lane paved roads,
without curb or sidewalk. The right of way for 10th Avenue west of the site is only 25 feet wide,
unpaved and currently closed to public travel west of Best Road. The width of the right of way
for 10th Avenue tapers from 50 feet to 25 feet, from the southwest corner of the site to Calvin
Road east of the site; and is unpaved adjacent to the site, and between the site and Calvin Road.
30. The owner(Cherlyn Rose) of a single-family residence located directly west of the
southwest portion of the site opposed the project based on concern with duplex development in
the project, density of housing, traffic congestion and poor road conditions on Eighth Avenue.
The owner(Al Walls) of a single-family residence located directly south of the site across 10th
Avenue expressed concern over the location of the duplexes in the south end of the proposal, and
dust control impacts along the unpaved portion of 10th Avenue located east of the site. The
owner(Marilyn Feather) of a single-family residence located south of the site expressed support
for the proposal.
31. The primary justification given by the applicant for the proposed variances was to provide
an economically viable project, and the lack of common open space and compliance with
flanking street setbacks along 10th Avenue in the duplex development to the east.
32. The duplex development on the property located to the east is nonconforming under its
present UR-3.5 zoning, because it was platted in 1985 under the now expired County Zoning
Ordinance and different zoning. Zoning Code 14.404.082 provides that the granting of a
variance should not be based on the precedent established by nonconforming circumstances, or a
lack of reasonable economic return.
33. The purpose of the 10% open space requirement is fundamental to the PUD Overlay zone
concept, and allows developers to take advantage of the reduced setbacks, lot areas, frontages,
etc. allowed in a PUD Overlay zone in exchange for reserving at least 10% of the PUD for open
space. Policies UL.2.11, 2.12, 3.2 and 3.3 of the Comprehensive Plan encourage such trade-offs
for urban residential development.
34. There no special circumstances applicable to the property, including size, shape,
topography, location or surroundings, such that strict application of the 10% open space
requirement or the flanking street yard setback requirements would create practical difficulties
that would deprive the subject property of rights and privileges enjoyed by other properties in the
vicinity and similar zone classification. The Examiner also agrees with the analysis in the Staff
Report regarding the consistency of the proposed variances with Zoning Code 14.404.082 (2) (a-
c) and 14.404.082 (3)(b) through(3)(g).
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35. The preliminary plat map/PUD site development plan lacks much of the information
required for a PUD site development plan in Zoning Code 14.704.140, including but not limited
to the location of the proposed housing on each lot,building heights, fence details, floor plan of
typical dwelling units, the unit size in square feet for such housing and the amount of
noncommon open space per lot, building elevations showing typical architectural styles to be
constructed, functions of common open space and a schematic landscaping plan. Such details are
fundamental to a decision on whether to approve a PUD Overlay zone as submitted.
36. Substantial modifications are needed to the preliminary plat map and preliminary PUD site
development plan in order to provide 10% open space in the PUD, and to supply the information
requested by Zoning Code 14.704.140.
37. Zoning Code 14.704.325 authorizes the Hearing Examiner to approve deviations from the
interior yard setback requirements of the underlying zone in a PUD Overlay zone, as illustrated
on a PUD site development plan, provided such deviations "... ensure adequate provision of light
and air for all structures. This includes the 5-foot side yard setbacks shown on the site plan
applicable to 2-story single-family homes constructed in the preliminary plat.
38. Zoning Code 14.704.325 also states that the minimum setbacks of the underlying zone shall
apply to exterior project boundaries, "[e]xcept when otherwise approved at time of P.U.D.
hearing." It is unclear whether the flanking street yard deviations requested by the applicant
along the exterior boundaries of the project require a variance, or can be approved by the
Examiner at the PUD hearing, without a variance, as long as they ensure"... adequate provision
of light and air for all structures."
39. The UR-7 zone requires a 6-foot high wall, solid landscaping or sight-obscuring fence to be
provided and maintained along the boundary of any UR-7 zone that abuts a UR-3.5 zone. This
provision is applicable to the west and east borders of the preliminary plat. The preliminary plat
map/PUD site plan does not show such required fencing. Zoning Code Chapter 14.810
authorizes the installation of a fence not exceeding six (6) feet in height to be installed in the
front yard or flanking street yard, in a PUD Overlay zone, and otherwise authorizes fences not
exceeding six (6) feet in height to be installed along the property line.
40. If Zoning Code 14.704.325 authorizes the Examiner to approve a flanking street yard
setback for 10th Avenue without a variance, the Examiner finds that residential units should be
set back at least 15 feet from 10th Avenue, or at the nearest residential unit lot line (where open
space lies between the lot and 10th Avenue),whichever distance is greater. This will avoid a
congested appearance along 10th Avenue.
41. The Examiner construes the requested flanking street yard setback for Lot 9, Block 1 in the
proposal to be 10 feet from 10th Avenue, equivalent to a distance of 35 feet from the centerline of
such road. The Examiner interprets the requested flanking street yard setback in the southeast
portion of the project to be the setback distance from 10th Avenue to Lot 9, Block 2 of the
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project, since no housing is or can be proposed in the common open space located between 10th
Avenue and such lot. This also equates to a zero side yard for such lot along its southerly border.
42. The map/site plan illustrates the dedication of 16-25 feet of right of way for 10th Avenue
along the frontage of the site, and the addition of curb and 24 feet of asphalt pavement in such
dedicated right of way and existing right of way for 10th Avenue, but no sidewalk. City
Engineering conditions, as clarified at the public hearing,would require 24 feet of asphalt
pavement, curb and sidewalk along 10th Avenue after right of way dedication. Such conditions
also require frontage improvements to Eighth Avenue, including widening and the installation of
curb and sidewalk, and full improvements to the internal public road in the proposal.
43. The record indicates that some traffic from the proposal will likely use 10th Avenue to reach
Adams Road to the east. The City Road Standards require frontage improvements, including the
installation of curb, gutter and sidewalk, for new residential development in urban residential
zones. Policy UL.2.14 recommends that separated sidewalks be required on public roads in all
new residential subdivisions. Also see Policy T.3e.4. Spokane County Fire District 1 requested
that the frontage improvements requested by City Engineering along Tenth Avenue not be
reduced, to ensure adequate access to a new fire hydrant the applicant would be required to
install at 10th Avenue and Rees Road.
44. Any deviation from the City Road Standards would have to be approved through a design
deviation from the City Engineer,which indicated that it was unwilling to grant a deviation from
the sidewalk requirement for 10th Avenue. The road improvements requested by City
Engineering are proportionate and rationally related to the impact of the project on the adjacent
public road system. There is no evidence that the project will cause the capacity of Eighth
Avenue to be exceeded or cause failing levels of service at area intersections; and there is an
insufficient nexus to require off-site road improvements to Eighth Avenue.
45. The Examiner's decision approving the preliminary plat for the site in County File No
1884-01 required the addition of 24 feet of asphalt and curbing along the frontage of the site with
10th Avenue to create a half street road section, and also required the addition of 24 feet of
asphalt strip paving to create a half street road section along 10th Avenue between the site and
Calvin Road.
46. The Examiner has some concern regarding dust impacts along the unpaved portion of 10th
Avenue east of the site. While it would appear unfair to visit the entire cost of paving such
unpaved portion entirely on the applicant, City Engineering should consider a mechanism to
provide at least some strip paving of 10th Avenue at such location,perhaps through a local
improvement district (LID). It is possible that Short Plat No SP-1233-00 located south of the site
is subject to a RID/LID requirement for 10th Avenue.
47. The project would be served with public sewer and water, and modern, underground
utilities. Vera Water and Power Company requested that the applicant provide a utility easement
and a water plan for the project,but certified that public water was available to serve the project.
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The subject application meets the sewer and water concurrency requirements of the City's Phase
I Development Regulations.
48. The Phase I Development Regulations do not require direct concurrency for schools, parks,
police or fire protection. Central Valley School District was contacted regarding the project but
did not submit any comments. Due to its relatively small size, the proposal is unlikely to have a
significant impact on City parks and recreation facilities.
49. The UR-7 zone implements the Low Density Residential category of the Comprehensive
Plan. The density of the proposal is currently well within the density range recommended by the
Low Density Residential category. The site is located along a Minor Arterial, and has good
access to the major arterial systems in the area.
50. The City Community Development Department recommended approval of the proposed
rezone, denial of the variance requests, denial of the PUD Overlay zone, and approval of a
revised preliminary plat on the site that does not exceed a density of six (6) dwelling units per
acre. At the public hearing, the applicant requested an opportunity to revise the preliminary plat
and PUD to meet Zoning Code requirements if the requested variances were denied.
51. The Staff Report sets forth applicable policies of the GMA Comprehensive Plan, in
addition to the specific policies listed above, and analyzes the consistency of the proposal with
such policies. The Examiner concurs with such analysis and hereby adopts and incorporates the
same by reference as findings of fact herein.
52. Approval of a rezone of the site to the UR-7 zone will not have more than a moderate effect
on the quality of the environment.
53. Changed conditions have occurred since the zoning of the site was reclassified to the UR-
3.5 zone in 1991. This includes the extension of public sewer to the area, adoption of the 2002
Comprehensive Plan and the Phase I Development Regulations, designation of the site in the
UGA, incorporation of the City of Spokane Valley, and increased population growth in the area.
Based on the above findings of fact, the Hearing Examiner enters the following:
II. CONCLUSIONS OF LAW
1. The proposed rezone to the UR-7 zone conforms to the Comprehensive Plan, and bears a
substantial relationship to the public health, safety or welfare.
2. A change in economic, technological, or land use conditions has occurred to warrant
approval of the proposed zone reclassification. A substantial change of circumstances has
occurred in the area since the site was last zoned.
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3. The proposed variance from the open space requirements of the PUD Overlay zone do not
satisfy the variance criteria set forth in Zoning Code 14.404.082 and should be denied.
4. The proposed preliminary plat and PUD Overlay zone should be returned to the applicant
for modification or correction, pursuant to RCW 58.17.140, since denial of the variance from the
open space requirements of the PUD Overlay zone requires a redesign of the preliminary plat and
PUD, and because the preliminary PUD site development plan does not substantially comply
with the requirements for a preliminary PUD site development plan set forth in Zoning Code
14.704.140.
5. The proposed variance from the flanking street yard setback requirements of the UR-7 zone
for 1 0th Avenue does not satisfy the variance criteria set forth in Zoning Code 14.404.082, and
should be denied. However, the Examiner may have authority to approve a deviation from such
setback requirements under Zoning Code 14.704.325. If so, the deviation should provide a
flanking street yard setback that is at least 15 feet from 10th Avenue, or the nearest residential
unit lot line, whichever distance is greater, to ensure adequate provision of light and air for all
structures.
6. The proposed rezone of the site to the UR-7 zone should be approved.
7. City Engineering requirements for the improvement of 10th Avenue are appropriate.
8. The procedural requirements of the State Environmental Policy Act and the City's Local
Environmental Ordinance have been met.
III. DECISION
Based on the Findings of Fact and Conclusions of Law above, the subject application for a
zone reclassification to the UR-7 zone is hereby approved, and the proposed variance application
regarding PUD Overlay zone setback requirements and flanking street yard setback requirements
is hereby denied.
Based on the Findings of Fact and Conclusions of Law above, the subject applications for
preliminary plat and for a Planned Unit Development (PUD) Overlay zone are hereby returned to
the applicant for modification or correction, according to the following procedure:
1. A revised preliminary plat map,with or without a PUD Overlay zone request and
revised preliminary PUD site development plan, must be submitted within 60 days of this
decision, or such application(s) shall be deemed denied.
2. Upon timely receipt of a revised preliminary plat map, with or without a revised PUD
site development plan, the City Community Development Department shall circulate the
revised preliminary plat, along with any revised preliminary PUD site development plan
that is submitted, for comment by reviewing agencies, and shall also notify parties of record
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that a revised preliminary plat map, and revised preliminary PUD site development plan if
submitted, have been received.
3. After the receipt of comments from public agencies, the Department and the
applicant shall provide a new notice for a public hearing on the revised map and/or site
plan.
DATED this 4th day of September, 2003.
CITY HEARING EXAMINER PRO TEM
/C, 4-(1/
�.y
Mic ael C. Dempsey,WSBA# 3
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to City of Spokane Valley Ordinance No. 57, the decision of the Hearing
Examiner on a combined application for a preliminary plat, zone reclassification and Planned
Unit Development Overlay zone is final and conclusive unless within fourteen(14) calendar days
from the Examiner's written decision, a party of record aggrieved by such decision files an
appeal with the City Council of the City of Spokane Valley, City Hall, 11707 E. Sprague
Avenue, in Spokane Valley, Washington.
This decision was mailed by certified mail to the Applicant, and by first class mail to
other parties of record, on September 4, 2003. THE APPEAL CLOSING DATE IS
SEPTEMBER 18, 2003.
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.
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