Zoning law muddies waters

Spokane Valley Hearing Examiner Mike Dempsey will decide in about a week whether the Elephant Boys store at 12606 E. Sprague Ave. can continue displaying new boats in a fenced-off section of its parking lot.

In August, the city of Spokane Valley received a complaint from Baskin-Robbins that a houseboat was on display next to Sprague, blocking their business from the view of westbound traffic. City staff issued a warning notice that selling new boats was not a permitted use at the location.

A second, anonymous complaint was received in November, after the Sprague/Appleway Revitalization Plan took effect. City staff told property owner Harlan Douglass that new-boat sales were still not allowed under the new zoning. Whipple Consulting Engineers filed an appeal of the decision on behalf of Douglass and Elephant Boys owner Ed Conley, and a hearing on the matter was held last week before Dempsey.

Assistant planner Lori Barlow said boat sales are permitted in the Gateway Commercial zone, not the Mixed Use Avenue Retail zone where the store is located. Used vehicle sales are expressly not allowed in the mixed use zone, she said. “Boats and vehicles are treated similarly,” she said.

Attorney Joe Delay, representing Whipple Consulting Engineers and Douglass, said the issue is really whether sales of new boats are allowed. “I concede that under the permitted uses, used boat sales are not permitted,” he said.

But the zoning code only specifically prohibits used vehicle sales, he said. If the city meant to ban all new and used vehicle sales, the prohibited uses list would have simply said vehicle sales, he argued. “But they didn’t do that,” he said. “The intent behind that ordinance is to restrict used vehicle sales.”

A person “of average intelligence” would assume that only used vehicle sales were not allowed and that selling new vehicles was allowed, he said. The zoning language stipulates that all storage should be enclosed except for retail products usually displayed outside because of their size and weight, such as cars and boats. “The plan clearly permits the outside display of cars and boats,” he said.

Dempsey said that in order to find in Douglass’ favor he would have to determine that new cars could be sold in the Mixed Use Avenue Retail zone in addition to new boats. He said he had read the revitalization plan and found a detailed explanation as to how new vehicles could be displayed in the Gateway Commercial zone. “I didn’t find any other zone that allowed that,” he said, which would seem to indicate new cars can’t be sold in any other zone.

“I’m not sure the citizens have access to this document,” Delay said of Dempsey’s interpretation, although the city has a full copy of the plan posted on its Web site.

Todd Whipple, of Whipple Consulting Engineers, said a reasonable person cannot understand the code as written. “There’s a reason that it says used vehicle sales and not vehicle sales,” he said. “I think it’s explicit that new vehicle sales are allowed.”

Whipple also took aim at a section of the plan that states “proposed uses that are not explicitly listed below may be permitted if they are deemed by the Community Development Director/Designee to meet the purpose and intent of the Plan.” Community Development Director Kathy McClung wrote in a letter that boat sales are not allowed in a Mixed Use Avenue Retail zone. Whipple argued that McClung had no standing to make such a decision.

“That’s dealing with a new building or a new proposed use,” he said. “I do not believe she has the right to comment on specific uses. We don’t think the sub-area plan says what the city staff thinks it says.”

After the hearing Conley said he intends to file an appeal in Spokane County Superior Court if Dempsey rules against him.