HomeMy WebLinkAbout6297ORDINANCE NO. 6 2 9 7
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, APPROVING THE REQUEST OF
FIORITO BROTHERS FOR A REZONE FROM C-3 HEAVY
COMMERCIAL TO BP BUSINESS PARK FOR PROPERTY
LOCATED AT M STREET NW AND 15T" STREET NW
WHEREAS, Application No. REZ09-0003 has been submitted to the City Council
by the Fiorito Brothers, Inc. requesting the rezoning of real property located at 15tn
Street NW and M Street NW and designated by parcel numbers 1221049041,
1221049042, and 1221409043; and
WHEREAS, the environmental impacts of the Fiorito Business Park Rezone
were considered in accordance with the procedures of the State Environmental Policy
Act; and
WHEREAS, the Business Park zoning designation can be applied to any site
within the city designated as "region serving" in the comprehensive plan, that is zoned
commercial or industrial; and
WHEREAS, after proper notice published in the City's official newspaper at least
ten (10) days prior to the date of hearing, the City of Auburn Hearing Examiner on
February 17, 2010 conducted a public hearing on the proposed Fiorito Business Park
Rezone; and
WHEREAS, at the public hearing the City of Auburn Hearing Examiner heard
public testimony and took evidence and exhibits into consideration; and
Ordinance No. 6297
March 10, 2010
Page 1
WHEREAS, thereafter the City of Auburn Hearing Examiner made a
recommendation to the City Council on the proposed Fiorito Business Park Rezone;
and
WHEREAS, on March 15, 2010, the Auburn City Council considered the
proposed Fiorito Business Park Rezone as recommended by the City of Auburn
Hearing Examiner; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. The City Council ("Council) adopts and approves the Fiorito
Business Park rezone from C-3 Heavy Commercial to BP Business Park and directs
that the rezone application and all related documents be filed along with this Ordinance
with the Auburn City Clerk and be available for public inspection.
Section 2. The Zoning Map amendment is herewith designated as a basis for
the exercise of substantive authority under the Washington State Environmental Policy
Act by the City's responsible environmental official in accordance with RCW.
43.21 C.060.
Section 3. The Council adopts the Findings of Fact and Conclusions of Law, in
the Hearing Examiner's recommendation outlined below:
FINDINGS OF FACT
Procedural:
1. Applicant. The applicants are the Fiorito Brothers, represented by Gary Volchok.
2. Hearinq. The Hearing Examiner conducted a hearing on the application at 5:30
p.m. at Auburn City Hall in the Council Chambers on February 17, 2010.
Ordinance No. 6297
March 10, 2010
Page 2
Substantive:
3. Site/Proposal Description. The applicant has applied for the rezoning of an
approximate 10 acre parcel from C-3 (Heavy Commercial) to BP (Business
Park). The property was zoned Heavy Commercial in order to encourage retail
use in an area that is proximate and visible to SR 167. The applicant has found
that the area is not suitable for exclusive retail use and wishes to rezone it to BP
in order to allow for a mixture of retail and other uses such as industrial.
In order to acquire approval of a rezone to BP, the applicant must acquire
approval of a contract rezone that incorporates a conceptual site plan. ACC
18.36.020. The planning director shall approve the final site plan. The applicant
acknowledges that his conceptual site plan is based upon one proposed
industrial use from several years ago and will have little relation to what will
actually be developed. There was some testimony to the effect that the site plan
establishes a maximum building area of 95,000 square feet, but this limitation is
already included in the recommended conditions of approval. The site plan
presented by the applicant appears to be completely meaningless. The
applicant has agreed to enhance design requirements that would not otherwise
be applicable. These are outlined in Exhibit 14. The applicant has also agreed
to a limited set of uses for the property, which are outlined in Exhibit 15.
4. Characteristics of the Area. The site is adjoined by SR 167 to the west, a Costco
distribution facilitYon the east, an undeveloped wetlands and floodplain area to
the north and 15 h St. NW to the south. Emerald Downs is located east of the
Costco facility. M Street only connects to 15th St. NW. Assessor and other
maps show that M street loops into 29th Street, but 29th Street is closed. As
noted by the applicant, the project site is fairly isolated from any other use.
There is conflicting evidence on whether the project site is visible from SR 167;
with staff stating that it is visible, in particular going southbound on SR 167 while
the applicant presented photos (Ex. 19) that it is not. The photos do not show
what can be seen at auto level, so they are of limited utility. Vegetation or
topography may very well limit visibility from SR 167 but this is not evident from
the photos.
5. Public Benefit. A critical requirement for approval of a BP designation is that it
must result in a public benefit. The applicant has made a compelling argument
that the property cannot be developed as a C-3 use. In addition to all the
evidence presented by the applicants, there is also the common sense
conclusion that if they could have sold the property as C-3, they would have
done so given the value of that type of property. As a baseline, therefore, it must
be acknowledged that there is a public benefit to the proposed rezone simply
because it will facilitate the development of vacant land in an urban area. This
Ordinance No. 6297
March 10, 2010
Page 3
promotes the creation of jobs and an increase in real property taxes. The use
limitations and design standards agreed to by the applicant (Exhibits 13 and 14)
further add to public benefit by enhancing the compatibility of the development
with surrounding uses and enhancing the aesthetic values of that development.
The one downside to the rezone is that it facilitates industrial use, which the City
believes to create a demand on public services (mainly street wear and tear by
industrial vehicles) with no off-setting generation of public revenue through a
sales tax. The staff requirement for a mix of retait and industrial use off-sets this
downside. During the hearing staff and the applicant agree upon language
similar to that specified pages 13-14 of Ordinance No. 5607 where it designates
a minimum amount of retail use. Although the parties came to agreement on
some of this language, the portion agreed upon does not stand upon its own.
The parties agreed to a minimum requirement of 20 feet of interior space from
retail windows without agreeing upon how much window space is required. The
Examiner will include the amount of window space specified in Ordinance No.
5607 as well.
Given the lack of marketability of the property as a C-3 use and the design
standards and use limitations agreed to by the applicant, the proposal creates a
net public benefit.
6. Adverse Impacts. As noted above, the proposal will create a net public benefit.
As noted during public testimony, the project area recently went through short
plat review. This short plat review required full infrastructure improvements and
mitigation for commercial use of the subject lot. As noted by the applicants,
most of the improvements they have made satisfy all current development
standards, but there will be some improvements in response to changes in
stormwater standards. Staff have also noted that some street improvements
may be necessary, in particular the addition of a bike lane to M Street as
contemplated in the recently updated its Comprehensive Transportation Plan,
which now identifies a bike lane along M Street as connecting to the Interurban
Trail. All of these infrastructure improvements are minor enough to be
addressed at the site plan review stage of approval. Given some of the issues
associated with the connectivity of the bike lane, the bike lane requirement is
also best left to the site plan review stage when there may be more information
available about future connectivity.
There are no adverse impacts discernable from the record given that
infrastructure improvements can be adequately addressed at site plan review;
that there are no environmentally sensitive areas associated with the site; and
that there are no compatibility problems with adjoining land uses.
Ordinance No. 6297
March 10, 2010
Page 4
CONCLUSIONS OF LAW
Procedural:
Authority of Hearinq Examiner. ACC 18.68.030(B)(1)(a) grants the Hearing
Examiner with the authority to review and make a recommendation on rezone
requests to the City Council if the planning director determines that the rezone
requests are consistent with the comprehensive plan. The planning director has
determined that the rezone request is consistent with the comprehensive plan.
The comprehensive plan land use map designation for the property is Heavy
Commercial with an overlay of "region serving". Acc 18.36.010 provides that the
BP zone may be established in any area designated "region serving" that is
zoned commercial or industrial.
Substantive:
2. Zoning Designation. The property is current zoned C-3, Heavy Commercial.
3. Case Law Review Criteria and Application. Washington appellate courts have
imposed some criteria themselves, requiring that the proponents of a rezone
must establish that conditions have substantially changed since the original
showing and that the rezone must bear a substantial relationship to the public
health, safety, morals or welfare. See Ahmann-Yamane, LLC v. Tabler, 105 Wn.
App. 103, 111 (2001). If a rezone implements the Comprehensive Plan, a
showing that a change of circumstances has occurred is not required. Id. at 112.
As discussed in the staff report, there is no question that the project is consistent
with the comprehensive plan. The requirement for retaining some retail use
along with the industrial use helps to support Auburn's role as a regional
employment and commercial center as contemplated by Policy LU-3. The
design standards agreed upon by the applicant in conjunction with the frontage
retail requirement is consistent with the LU-109 prohibition on placing industrial
uses in highly visible areas (if the area even qualifies as highly visible - as noted
previously the evidence on this issue is incomplete). The rezone facilitates the
development of the vacant land into uses that will create jobs, as consistent with
Policy ED-8.
Although the policy may be consistent with the Comprehensive Plan, it is
debatable whether it "implements" the Comprehensive Plan. The current C-3
designation is also consistent with the Comprehensive Plan. It is unclear from
the case law whether changing from one consistent use to another qualifies as
"implementing" the plan. The courts use of the term "implemenY" the Plan
instead of the standard requirement for consistency with the Plan suggests that
something more is required. The only reasonably plausible "something more" is
Ordinance No. 6297
March 10, 2010
Page 5
that the change is necessary for consistency with the plan. Given that a rezone
is not necessary to achieve consistency with the Comprehensive Plan, a change
in circumstances is necessary. The severe downturn in the commercial real
estate market, as testified by Mr. Volchok, qualifies as a change in
circumstances since the last rezone of the property in 2006.
Since the proposal will result in a net public benefit as discussed in the Findings
of Fact, it bears a substantial relationship to the public health, safety, morals or
welfare as required by the case law cited above.
4. Code Requirements for Approval of a BP Rezone. Although Auburn's municipal
code does not provide any review standards for rezones in general, there are
specific standards that apply to rezones to the BP designation. These standards
are identified in Chapter 18.36 ACC. Relevant standards are quoted below with
accompanying analysis in conclusions of law.
ACC 18.36.020(A)(1): Conceptual approval of a business park shall be applied by
the rezone process as specified in ACC 18.68.030(B)(1)(a). The rezone shall be a
contract rezone and shall include an agreement that establishes the type, square
footage and general location of the uses; the location and size of the park; restrictive
covenants; public improvements; and the responsibilities of the owner/developer.
5. As mentioned previously, the conceptual site plan offered by the applicant is
worthless, since the applicant and staff both acknowledge that the project will
probably not bear any resemblance to what is diagramed in the site plan.
However, it should be recognized that no site plan is actually required by ACC
18.36.020(A)(1) at this stage of review. Exhibits 13 and 14, in conjunction with
the 95,000 square foot size limitation and the boundaries of the subject parcel
provide the information required by ACC 18.36.020(A)(1). It is a little puzzling
why the applicant has presented any actual site plan, since all it accomplishes is
confusion. It is understood that the site plan helps establish a maximum building
area for the project, but if that is all it's used for its purpose must be more clearly
expressed.
ACC 18.36.020(A)(2): A BP district shall only be approved when the
owner/developer has demonstrated that a public benefit will result and the project
contains architectural, site, and landscape design standards that are significantly
superior to those typically required in the other industrial and commercial zones.
6. As noted in Finding of Fact No. 5, the project creates a net public benefit. A
comparison of the standards agreed upon by the applicant (Exhibit 13) to those
required in other industrial and commercial zones reveals that they are
significantly superior.
Ordinance No. 6297
March 10, 2010
Page 6
ACC 18.36.020(A)(3): No significant impacts on the public infrastructure shall occur
that cannot be effectively mitigated by the development of the business park.
7. As discussed in Finding of Fact No. 6, infrastructure improvements will be
relatively minor and can be addressed during site plan review.
DECISION
The Hearing Examiner recommends approval of REZ09-0003, subject to the
following condition:
1. A lot line elimination shall be processed concurrently with the final site plan
approval.
2. The applicant shall submit a traffic impact analysis, storm drainage report, and
wetland report as part of the final site plan approval process.
3. The permitted uses shall be those uses identified in Exhibit 1 to this ordinance
with the exceptions previously noted. Items 26 and 35 of Exhibit 1 are revised to
allow the specified uses throughout the buildings of the project except in the
areas required for retail use.
4. The project shall comply with the design standards as outlined in Exhibit 2 to this
ordinance. As part of the final site plan submittal and review process, the
applicant shall submit building elevations demonstrating how the proposed
building complies with the Fiorito Business Park Design Standards.
5. The general location of the proposed building to be devetoped on the subject site
shall be consistent with the conceptual site plan dated February 5, 2010. The
total area of any proposed building shall be limited to 95,000 square feet. The
proposed storm drainage facility may increase depending on the outcome of the
final site plan review which could impact location of parking spaces and will be
reviewed as part of the final site plan review process. The project shall comply
with the retail space requirements of Condition 2(B)(1) of Auburn Ordinance No.
5607 however the location of glass windows shall be at a minimum the west
facing fagade.
6. A master landscape plan shall be prepared for the entire project site. A
minimum ten (10) foot wide landscape area shall be constructed along the M
Street NW as it rises to intersect 15th Street NW shall be designed in an
innovative way and create a gateway into the project. The master landscape
plan shall be prepared and submitted as part of the final site plan process.
Ordinance No. 6297
March 10, 2010
Page 7
7. A master sign plan shall be prepared and approved by the City that coordinates
the exterior signs of the individual tenants. The sign regulations outlined in ACC
Chapter 18.56 for the C-3 zone shall apply for size, height, and number of signs
permitted. Signage shall be part of the architecture of the building and not an
afterthought; however, the architectural design of the tenants' logos is not
intended to be altered by this condition. The master sign plan shall be prepared
and submitted as part of the final site plan process.
8. All exterior lighting shall be designed and constructed such that the direct
illumination does not unreasonably spill over on adjoining properties. The
exterior lighting shall be coordinated for the site, including both parking lot
lighting and building lighting. The exterior lighting plan shall be prepared and
submitted as part of the final site plan process.
9. Pedestrian walkways shall be provided that connect the parking areas to building
entrances. Pedestrian connections shall be clearly defined by textured paving,
including vehicular lanes, such as unit pavers, stamped concrete, or scored
concrete. These walkways shall be shown on the final site plan.
10.The concept of a recreational trail adjacent to the wetland area on Parcel
1221049041 shall be part of the final site plan review process and potential
connection to the Interurban Trail explored.
11.Amendments to this Business Park rezone may occur as follows:
a. The Planning Director may interpret the words and meaning of the certain
conditions in order to resolve conflicts in implementation.
b. If changes to the language of the rezone are required, such proposed
changes shall be reviewed by the Planning and Community Development
Committee of the City Council, or its successor. If the change is minor--less
than 10% change--then the Committee shall make a recommendation to the
City Council. If the change is major--greater than 10% modification--then the
Committee shall refer the change to the Hearing Examiner. The Hearing
Examiner shall conduct a public hearing and make a recommendation to the
City Council.
c. Amendments to the rezone shall only be initiated by the property owner of the
City.
Ordinance No. 6297
March 10, 2010
Page 8
Section 4. Upon the passage, approval, and publication of this Ordinance as
provided by law, the City Clerk of the City of Auburn shall cause this Ordinance to be
recorded in the office of the King County Recorder.
Section 5. If any section, subsection, sentence, clause, phrase or portion of
this Ordinance or any of the Zoning Map amendments adopted herein, is for any reason
held invalid or unconstitutional by any Court of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not
affect the validity of the remaining portions thereof.
Section 6. The Mayor is hereby authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 7. This Ordinance shall take effect and be in force five days from and
after its passage, approval, and publication as provided by law.
INTRODUCED: MAR 15 2010
PASSED: MAR 1 5"2010
MAYOR
ATTEST:
Da ' Ile E. Daskam,
City Clerk
Ordinance No. 6297
March 10, 2010
Page 9
APPROVED: ueQ t c 7nfn
APPROVED AS TO FORM:
Daniel B. Heid,
City Attorney
Published:
Ordinance No. 6297
March 10, 2010
Page 10
Exhibit 1
Staff Recommended Permitted Uses
Fiorito Business Park Rezone
~ PERMITTED USES
I
ENTIRE BUILDING
REAR PORTION
BUILDING ONLY
' 1
Arcades
YES
YES
2
Art, music, and photography
studios
YES
YES
3
Auction houses, excludin animals
YES
YES
4
Automobile re air services
YES
YES
5
Automobile sales, new and/or used
YES
YES
6
Automobile or truck rental
YES
YES
7
Automobile washes
YES
YES
! 8
Banking and related financial
institutions
YES
YES
9
Building contractor services,
includin stora e ards, if screened
YES
YES
10
Civic, social, and fraternal
associations
YES
YES
11
Delicatessens
YES
YES
12
D cleanin and laund services
YES
YES
, 13
I
I,
Equipment rental and leasing, does
not include heavy construction
e ui ment
YES
YES
' 14
Hotels
YES
YES
15
Laund , self-service
YES
YES
I 16
Lumber ards
YES
YES
17
Mini-stora e warehouses
YES
YES
18
Motorc cle sales and service
YES
YES
, 19
Personal service sho s
YES
YES
' 20
Printin and ublishin
YES
YES
21
ProfessionalOffices
YES
YES
22
Recreational vehicle sales lots
YES
YES
' 23
Restaurants
YES
YES
24
Retail stores and shops, including
department and variety stores as
listed in ACC Section
18.30.020 WW 1-32 .
YES
YES
25
Re-u holste and furniture re air
YES
YES
I 26
~
Storage warehousing, limited to
being incidental to principal
ermitted use on ro ert
YES, EXCEPT WHERE
RETAIL REQUIRED
PER CONDITION 5
YES
27
Truck sales with re air as
YES
YES
Ordinance No. 6297
March 10, 2010
Page 11
Exhibit 1
i
seconda use
28
Health and h sical fitness clubs
YES
YES
29
Household movers and stora e
YES
YES
30
Janitorial Services
YES
YES
31
Manufacturing, assembling and
YES
YES
packaging of articles, products and
merchandise when conducted
entirely within an enclosed building
I
and if 1 job per 1,000 square feet is
created.
32
Printing, publishing, and allied
YES
YES
i
industries including such processes
as lithography, etching, engraving,
binding, blueprinting, photocopying,
and film rocessin
33
Research, develo ment and testin
YES
YES
; 34
Small a liance re air
YES
YES
, 35
Warehousing and distribution
YES, EXCEPT WHERE
YES
facilities, to include wholesale trade
RETAIL REQUIRED
not open to the general public. This
PER CONDITION 5
~
includes motor freight
transportation as an incidental use
but specifically excludes motor
freight transportation as the
rinci al use of the ro ert
36
Other uses may be permitted by
YES
YES
the Planning Director if the use is
~
determined to be consistent with
the intent of the Fiorito Business
Park Zone and is of the same
general character of the uses
'
ermitted in this list
Ordinance No. 6297
March 10, 2010
Page 12
Exhibit 2
DESIGN STANDARDS
FIORITO BUSINESS PARK REZONE
1. STANDARDS APPLICABLE TO SITE DESIGN
A. Parking Lots
1. Surface lots shall have a planter bed that includes at least one tree, a
minimum of two inch caliper at the time of planting, shrubs, and groundcover.
B. Pedestrian Walkways
1. Pedestrian connections not less than five (5) feet wide shall be provided
through parking lots to building entrances and sidewalks.
2. Pedestrian connections shall be clearly defined by textured paving, including
across vehicular lanes, such as scored concrete, stamped concrete, or unit
pavers.
C. Lighting
1. Only City approved standard fixtures shall be uses for public sidewalk
lighting.
2. All site lighting shall be shielded from producing off-site glare and so that the
direction of the light is downward.
3. The maximum height allowed for parking lot lighting is 24 feet.
4. Site lighting should be appropriate to create adequate visibility at night,
evenly distributed to increase security, and coordinated with adjacent
landscaping to avoid casting long shadows.
D. Screening of Trash and Service Areas
1. Trash and service areas shall be placed away from streets.
2. All service, loading, and trash collection areas shall be screened by a
masonry fence and planting, with similar character to the design of the
building it serves.
II. STANDARDS APPLICABLE TO BUILDING DESIGN
A. Entrances
1. Main entrances should be oriented so they are visible to the public right-of-
way.
2. Building entrances shall have awnings a minimum of four (4) feet deep and
cover the entire door width.
B. Landscaping adjacent to Building(s)
1. To provide visual transition of the joining of a building to the site, a minimum
four (4) foot landscape space between the exterior wall and the horizontal
paved surfaces, except at entrances/exits, loading docks, and service entries
Ordinance No. 6297
March 10, 2010
Page 13
Exhibit 2
shall be provided. A mix of evergreen and deciduous trees, shrubs, and
ground cover shall be included.
C. Building(s) Facades
1. All new buildings shall include on the fagade visible from the public street,
public recreational facilities, or the freeway shatl the following:
a. Varied courses or panel of material
b. Articulated wall panels with accentuated joints, edges, or reveals visible
from the street.
c. Windows, doors, or other openings over at least 20 percent of the
building.
d. Articulated roofline or building base.
D. If concrete blocks (concrete masonry units or "cinder blocks") are used for walls
that are visible from a public street/freeway, public recreational facility, or
pedestrian route, then the concrete block construction must be architecturally
treated in one or more of the following ways:
1. Use of textured blocks with surfaces such as split-face or grooved.
2. Use of colored mortar.
3. Use of other masonry types, such as brick, glass block, or tile, in conjunction
with concrete blocks.
4. Use of decorative coursing to break up blank wall areas.
E. If concrete tilt-up structures are used for walls that are visible from a public
street/freeway, public recreational facility, or pedestrian route, then the concrete
wall must be architecturally treated in one or more of the following ways:
1. Provided a textured scale to be visually perceptible at the distance viewed by
the public
2. Provide a pattern or composition created by casting relief in the exposed face
of the concrete.
3. Create compositions with horizontal profile; a repetitive pattern applied to
multiple panels is acceptable.
Ordinance No. 6297
March 10, 2010
Page 14
BEFORE THE HEARING EXAMINER FOR THE CITY OF AUBURN
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Phil Olbrechts, Hearing Examiner
RE: Fiorito Business Park
FINDINGS OF FACT, CONCLUSIONS
Rezone OF LAW AND RECOMMENDATION.
REZ09-0003
INTRODUCTION
The applicant has requested a rezone of an approximateIy 10-acre parcel fi•om C-3
(Heavy Commercial) to BP (Business Park). The Examiner x•ecommends approval of
the request with conditians.
ORAL TESTIMONY
Ms. Chamberlain noted that the SEPA comment period had ended the day before and
no coniments were supplied.
Gary Volchok, applicant's representative; testified on the histoiy of the property. He
noted that the Fiorito brothers used to own the adjosning Costco property. He noted
that as part of the short plat to create the Castco property, the Fiorito brothers
instalied all utilities including stormwater, but that due ta a change in stormwater
regulations additianal stormwater facilities will have to be installed. He noted that he
was in general agreement with the staff recommendation and appreciates the work of
the staff in the past year and a half in pr•ocessing the application. He noted that
originally in 2005 and 2006 when the City did some major rezoning of the area, the
planning department approved maintaining the property as M-1 but the Council
changed the designatian to commercial in order to generate sales taxes. Subsequently
the owners have tried to seil the property to several users without any success. When
the property was zoned M-1 in 2004, the applicant acquired SEPA and grading permit
approval for a boat-manufacturing operation, which is shown on the conceptuai site
plan. The conceptual site plan will probably not reflect wliat is actually built, but the
planning director wili have final au#liority on the site plan. Property to the north of
the property is all wetlands. Fotlunately, the floodplain is also confined noz•th of tha
proparty,
Mr. Volchok noted that only 0.3% of City land is vacant industrial land. There are
2861 gross acres of M-1 land. In reality, if you remave wetlands, railroad property
and nonindustrial uses, there is only 35 acres left to be developed. There is 1432
acres of C-3 zoning. He noted that driving along SR 167 from SR 18 to 277`1' he
couirted 22 x•ealtor signs for avaiiable C-3 propei•ties, Tliese were empty lots with
excellent exposure, easy access, and excellent synergy with surrounding uses.
(PA0768723.DOC;1100083.960000\ )
Rezone p. 1 Findings, Conclusions and Decision
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Mr. Volchok noted that originally the staff recorainended a text aniendment to allow
BP uses in the C-3 zone. A significant amount of work went in to preparing for a
Iiearing on this amendment and then it was discovered that the text amendment would
affect all C-3 property. The soiutioji was to rezoiie the property to BP as proposed.
Mr. Volchok noted that the only BP property in the City is the 18-acre Opus propei-ty
located on SW 15"' near the Supermall. It is 100% daveloped. Consequently,
rezoning the applicant's property as requested would be a public benefit because there
is no BP zoning and there is very Iittle M-1 propeity. Part of this shartfall in M-1
praperty was due to adoptiozi of the City's wetlands ordinance.
For a viable C-3 parcel you need gaod visibility, good access, and synergy with like
users. The applicant's propet-ty has none of the tlu-ee. Mr. Volchok took pictures
gaing east, west, north, and south aloiig adjoining roads, SR 167 and 15 NW. Usitig
the photos Mr. Volchok denianstrated tliat you can only see the applicant's property
tintil yott get to M Street from 15ti' NW. The Opus property has excellent visibility
fi•om adjoining roads. On access, the only way in and out of tlie property is M Street.
Mr. Volchok noted that there is a very high volume af traffic alang 15`11, making it
very difficult to tum onto M Street. He noted that the City of Auburn and WSDOT
have advised that a traffic lig}rt at the M Street/15"' NW intersection would not be
permitted due to its proximity to the on ramp to SR 167. On synergy, the OPUS
property has the Supermall, offzce space, etc.,.for excellent synergy. Mr. Volchok
noted that there is no synergy at the applicant's propeily. The property is surrounded
by wetlands and a creek and 29"` NW is closed.
Mr. Volchok stated that the access road to the praperty is fully improved and that he
does nat understand why staff wan#s to recommend additional improvements.
Mr. Volchok noted that the applicant has tried for four or five years to sell the
property for a C-3 use and that even in the heiglat of tlie real estate boom in 2007, no
one would want to use it for that purpose because of the problems he described. Mr.
Volchok referred to the letters from James Hamm and Patrick Gemma in Exhibit 19,
both experts on real estate development, who both conclude in their letters that the
property is not fit for commercial use.
In response to questions from the Examiner on the accuracy of the conceptual si#e
plan, Mr. Volchak respanded that it was not possible at this tinie to pxovide anything
more concrete. Mr. Volchok noted that the actual building will be considerably
smallec• than that characterized in the concephial site plan, because the commercial
uses will generate mare parking. Mr. Volchok aisa pointed out that the proposal does
involve a designation of a set of uses. Mr. Volchok also noted that the proposai also
included a higher standard of cons#ruction in order to ensure a resuIting public
benefit.
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Paul Cyr, auother applicant representative, iioted that the site plan is recommended by
staff and lias soine uses attached to it. The proposal includes a maximum square
footage of 92,000 square feet. The proposal aiso identifies development standards
that will be exceeded as part of the proposal, including design standards. Design
standards otherwise do not apply to tlie G3 zone.
Mr. Cyr nated that finding of Fact No. 16 of the staff report requix•es frontage
improvements. He noted that the road is nlready fully developed and met tlie
standards vested under the Costco short plat. The pz•imary difference between what
was built and what is x•equired hy staff is a bike lane. Mr. Cyr also noted that if a bike
lane were included it would be isolated and not part of any bike lane network. Mr.
Seek also noted that there was iiisufficient right-of-way (paved portion of the road)
for a bike lane. The Interurban Trail does run along the back side of Costco. Ms.
Cliamberlaiai commented that one way to conriect to the Intec•urban Trail would be to
ru» tlie bike lane along M Street to the Trail.
Mr. Cyr also took issue with the staff recommendation that at least 25% of the
building be retail. Mr. Cyr noted that this recommendation was located at Page 6 of
the staff report but it was not incorporated into the recommended conditions of
approval. Mr. Cyr recommended that the flexibility for retail should be retained and
that any retail should be located in the front, birt that there should be no mininnim
retail requirement,
Mr. Cyr also noted that in Exhibit 13, item 26 and item 35 limit storage and
warehousing to the rear portion of the building atid that this was not consistent with
everyone's understanding that warehousing was generally allowed tliroughout the
building.
Randy Fiorito, president of Fiorito Brothers. He testified that Fiorito Brothers has
owned the praperty since the late 1960s. They were involved in building in SR 167
wliicli is how they acquired the property. Fiorito Brothers completely rebuilt M street
when they sold the Costco propei-ty. Fiorito Brothers owns 35% of fhe property and
his mother owns the rest. They have desperately been trying to sell the property for
severat years. Considerable money was spent on the Costco propeety and they are in
the process now of instaliing drainage facilities and fill material.
Mr. Volchok clarified that the property was last rezoned in 2006. He also confrmed
that the commercial retail market has plummeted since that rezone.
Ms. Chamberlain noted that curb and gutter for M Street would not be necessary, but
that bike lanes and street trees may still be required undex current street standards.
Ms. Chamberlain noted that the City recently updated its Comprehensive
Transportation Plan to identify a bike lane along M Street to connect to the Interurban
Trail. She noted that the bike laiie connection woLtld be along M Street through 29`t'
to the Interurban Trail. She noted that although 29"' street is currently closed, it will
eventuaIly be opened again.
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Ms. Cliamberlain noted that the total square feet of the project may not exceed 95,000
square feet. She noted that the 25% Iimitation on retail space was intended to be in
the conditions of approvat and should be added. Ms. Chamberlain said that the need
for the retail is a balaiicing of the goals and policies of the City. She noted that the
City caruiot continue to have warehousing due to the impacts on the City's arterial
network with no off-setting tax beiiefit. She stated that staff was willing to negotiate
an the 25% number. She said that replacing the 25% of the building with a
reguirement for the first 20 interior feet of the building from the front of the Uuilding
be retail, as required for Opus in pages 13-14 of Ordinance No. 5607, would be
acceptable. Ms, Chamberlain explained that there is only one BP use in the City
currently because tlie BP designation is a conti•act rezone process that only works in
specific locations and the rezone must be initiated by the propex•ty owner. Ms.
Cliamberlain noted that about 18% of the City is industriat and that a substantial part
of it is developed, but there is potential for redeveiopment. She stated that the City
has determined that the City is balanced in its proportion of industrial ta commercial
land. Ms. Cliamberlain stated that staff would be agreeable to modifying Exhibit 13
to allow warehousing and storage throughout the buiIding except the front, instead of
limiting it to the rear of the building. Ms. Cliamberlain also said staff would be
agreeable to having the conditions require fi•ontage "according to code" as opposed to
specifying specific bike lanes, etc.
Mr. Cyr noted that he served for eight years as a Pierce County Council member from
1997 to 2004 during which time a comprehensive plan was adopted. He stated that
the Auburn City Council passed a resohition addressing the streamlined sales tax and
lie suspects that the adoption of this resolution prompted the City Council to look for
ways to attract iaiore tax revenue. He noted that the resolution does not have the force
of law and is just an expression of intent and is not binding on the applicant's
proposal. Ms. Chamberlain noted that the resolution has been embedded into the
City's comprehensive plan and tluough the plan daes have regulatory authority over
development projects.
Mr. Volchok noted that Auburn lost a tremendous amount of development potential
when it adopted its wetlands regulation in 1987. He noted that it took him 10 years to
get an Army Corp wetlands permit for another Fiorito project. He also noted that he
does not believe in his lifetime that funding will ever ba found to open 29"" given the
creek and railroad crossing that would be involved.
EXHIBITS
All exhibits listed in the Exhibit List at Page 9-10 of the staff report on this
application, dated 2/3/10, are admitted. In the addition, the following exliibits were
admitted during the hearing on this matter:
Exhibit 16 Affidavit of Publication (on published notice of hearing).
Exhibit 17 Auburn Ordinance No. 4962
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Exhibit 18
Auburii Ordinance No. 5607
Exhibit 19
Hamm/Gemma Correspondence, Applicant Photas.
ExhiUit 20
Volchok written comments.
FINDTNGS OF FACT
Procedurat:
Auplicant. The applicants are the Fiorito Brothers, represented by Gary
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Volchok.
2. Hearing. The Hearing Examiner conducted a hearing on the application at
5:30 p.m. at Auburn City Hall in the Council Chambers on February 17, 2010.
Substantive:
3. Site/Propasal Description. The applicant has applied for the rezoning of
an approximate 10-acre parcel from C-3 (Heavy Commercial) to BP (Business Park).
The property was zaned Heavy Comrnercial in ox•der to encourage retail use in an area
that is proximate and visible to SR 167. Tlie applicant has faund that the area is not
suitable for exclusive retail use and wishes to rezone it to BP in order to allow foz• a
mixture of retail and other uses such as industrial. ,
In order to acquire approval of a rezone to BP, the applicant must acquire approval of
a contract rezone that incorporates a conceptual site plan. ACC 18.36.020. The
planning director shall approve the final site plan. The applicant acknowledges tliat
liis conceptual site plan is based upon one proposed industrial use from several years
ago and will have little relation to what will actually be developed. There was some
testimony to the effect that the site plan establishes a maximum building area of
95,004 square feet, but this Iimitation is already included in the xecammended
conditions of approval. The site plan presented by the applicant appears to be
completely meaningless. The applicant has agreed to eiihanced design requirements
that would nat otherwise be applicable. These are outiined in Exhibit 14. The
applicant has also agreed to a limited set of uses for the property, which are autlined
in Exhibit 15.
4. Characteristics of the Area. The site is adjoined by SR 167 to the west, a
Castco distribution facility on the east, an undeveloped wetlands and floodplain area
to the north, and 15"' St. NW to the south, Emerald Downs is located east of the
Costco facility. M Street only connects to 15th St. NW. Assessor and other maps
show that M street loops into 29'h Street, hut 291h Street is closed. As noted by the
applicant, the project site is fairly isolated from any other use. There is conflicting
evidence on whether the project site is visible from SR 167, with staff stating tliat it is
visible, in paiticular going southbound on SR 167 while the applicant presented
photos (Ex. 19) that it is not. The photos do not show what can be seen at auto level,
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Rezone p. 5 Findings, Conclusions and Decision
so they are of limited utility. Vegetation or topography may very well Iimit visibility
from SR 167 but this is not evident from tlie photos.
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5. Public Benefit. A critical requirement for approval of a BP designation is
that it must result in a public benefit. The applicant has made a compelling argunient
that the property caimot be developed as a C-3 use. In addition to all the evidence
presented by the applicants, there is also the comman sense conclusion that if they
could have sold the property as C-3, they would have done sa given the value of that
type af property. As a baseline, therefore, it must be acknowledged that there is a
public beziefit to the proposed rezone simpiy because it will facilitate the development
of vacant land in an urban area. This promotes the creation of jobs and an increase in
real propeFly taxes. The use limita#ions and design staudards agreed to by the
applicant (Exhibits 13 and 14) further add to public benefit by enhancing the
coznpatibility of the deveiopment witli surrounding uses and enhancing the aesthe#ic
values of that development.
The one downside to the xezone is that it facilitates industrial use, which the Cify
believes to create a demand on public seivices (mainly street wear and tear by
industrial vehicles) with no off setting generation of public revenue through a sales
tax. The staff requirement for a mix of retail and industrial use off-sets this
downside. During the hearing staff and the applicant agreed upon language similar to
that specified pages 13-14 of Ordiiiance No. 5607 where it designates a minimum
an'iount of z•etail use. Although the parties came to agreement on some of this
language, the portion agreed upon does not stand upon its own. The parties agreed to
a minimum require;nent of 20 feet of interior space from retaii windows without
agreeing upon how much window space is required. The Examiner will include the
amount of window space specified in Ordinance No. 5607 as well.
Given the lack of marketability of the property as a C-3 use and the design standards
and use limitations agreed to by the applicant, the proposal creates a net public
benefit.
6. Adverse Impacts. As nated above, the proposal will create a net public
benefi#. As noted during public testimony, the project area recently wen# thraugh
sliort plat review. This shoit plat review required fitll infrastructure improvements
and mitigation for comniercial use of the subject lot. As nated by the applicants,
most of the improvements they have made satisfy all current development standards,
btit there wili be some improvements in response to changes in stormwater standards.
Staff have also noted that some street improvements may be necessary, in particular
the addition of a bike Iane to M Street as contemplated in the recently updated its
Comprehensive Transportation Plan, which now identifies a bike lane along M Street
as connecting to the Interurban Trail. All of these infrastructure improvements are
minor enough to be addressed at the site plan review stage of approval. Given some
of the issues associated with the connectivity of the bike lane, the bike lane
requiz•ement is also best left ta the site plan review stage when there may be inore
information available a6out firture connectivity.
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There are no adveise impacts discernable from the record given that infrastructure
improvernents can be adeqttately addressed at site plan review, that there are na
environmentally sensitive areas associated with the site, and that there are no
compatibility problems with adjoining land uses.
CONCLUSI4NS OF LAVV
Procedural:
1. Authoritv of Hearing Examiner. ACC 18.68.030(B)(1)(a) grants the
Hearing Examiner with the authority to review and make a recommendation on
rezone requests to the City Council if the planning director determines that the rezone
requests are consistent with the comprehensive plan. The planning director has
determined that the rezone request is consistent with the comprehensive plan. The
comprehensive plan land use map designation for the property is Heavy Commercial
with an overlay of "z•egion serving." ACC 18.36.010 provides that the BP zone may
be established in any area designated "region serving" that is zoned commercial or
industrial.
Substantive:
2. Zoning Designation. The property is curz•ent zoned C-3 (Neavy
Commercial). h
3. Case Law Review Criteria and Application. Washington appellate courts
have imposed some criteria themselves, reqtiiring that the proponents of a rezone
must establish tliat conditions have substantially changed since the original showing
and that the rezone must bear a substantial relationship to the public health, safety,
morals or weffare. See Ahmann-Yamwme, LLC v. Tabler, 145 Wn. App. 103, 111
(2001). If a rezone implements the Comprehensive Pian, a shawing tha# a change of
eircumstances has occurred is not required. Id. at 112.
As discussed in the staff repozt, there is no question that the project is consistent with
the comprehensive plan. The requirement for retaining some retail use along with the
industrial use helps to support Auburn's role as a regional employtnen# and
commercial center as contemplated by Policy LU-3. The design standards agreed
upon by the applicant in conjunction with the frontage retail requirement is consistent
with the LU-1 Q9 prohibition on placing industrial usas in highly visible areas (if the
area even qualifies as highly visible - as noted previoiisly the evidence an this issue is
incomplete). The rezone facilitates the development of the vacant land into uses that
will create jobs, as consistent with Policy ED-8.
Attliough the policy may be consistent with the Comprehensive Plan, it is debatable
whether it "implements" the Comprehensive Plan. The current C-3 designation is
also consistent witlx the Comprehensive Plan. It is unclear from the case law whether
changing fronl one consistent use to another qualifies as "implementing" the plan.
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The courts use of the terin "iinplement" the Plan instead of the standard requirement
for consistency with the Plan suggests that something moi•e is required. The only
reasonably plausible "something more" is that the change is necessary for consistency
witlz the plan. Given that a rezone is not necessary to achieve consistency witli the
Comprehensive Plan, a change in circumstances is necessary. The severe downturn
iix the comniercial real estate market, as testif ed by Mr. Volchok, qualifies as a
change in circumstances since the last rezone af the property in 2006.
Since the proposal will result in a net public benefit as discussed in the Fitxdings of
Fact, it bears a substantial relationship ta the public health, safety, niorals or welfare
as required by the case law cited abave,
4. Code Requirements for Approval of a BP Rezone. Although Auburn's
inunicipal code does not provide any review standards for rezones in general, there
are specific standards that apply to i•ezones to the BP designafion. These standards
are identified in Chapter 18.36 ACC. Relevant standards are quoted below with
accompanying analysis in conclusions af law.
ACC 18.36.020(A)(1): Conceptual approval of a business park shall be
applied by fhs rezone process as specified in ACC 18.68.030(B)(1)(a). The rezone
shall be a confract rezone and shall include an agreement fhat esfablishes fhe type,
square footage and general location of the uses the location and size af the park,
restrictive covenants; public improvements; and the responsibilities of the 'owner/developer.
5. As mentioned previously, the conceptual site plan offered by the applicant
is worthless, since the applicant and staff both acknowledge that the project will
probably not bear any resemblance to what is diagramed in the site plan. However, it
should be recognized that no site plan is actually required by ACC 18.36.020(A)(1) at
this stage of review. Exhibits 13 and 14, in conjunction witli the 95,000-square-foot
size limitation and the boundai•ies of the, subject parcel provide the information
requi;•ed by ACC 18.36.020(A)(1). It is a little puzzling why the applicant has
presented any actual site plan, since all it accomplishes is coi;fusion. It is understood
that the site plan helps establish a maximuin building area for the project, but if that is
all it is used for, its purpose inust he more clearly expressed.
ACC 18.36A20(A)(2): A BP disfrict shall only be approved when the
owner/developer has demonstrafed that a public benefit will result and the project
contains architectural, site, and landscape design standards that are significantly
superior to those typically required in the other industrial and commercial zones.
b. As noted in Finding af Fact No. 5, the project creates a net public benefit.
A comparison of the standards agreed upon by the applicant (Exhibit 13) to those
required in other industrial and commercial zones reveals that they are significantly
superior.
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ACC 18.36.020(A)(3): No significant impacts on the public infrasfrucfure shall
occur that cannat be effecfively mitigated by the developmenf of the business park.
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7. As discussed in Finding of Fact No. G, infrastz•ucture impzovements will be
relatively minor and can be addressed duriug site plan review.
DECISION
The Hearing Examiner recommends approval of REZ09-0003, subject to the
following condition:
1. A lot line eliinination shall be processed concurreixtly with the final site plan
approval.
2, The applicant shall submit a traffic impact aualysis, storm drainage report, and
wetland report as part af tlie final site plan approval process.
3. The permitted uses shall be those uses identifed in Exhibit 13 with the exceptions
previously noted. Items 26 and 35 of Exhibit 13 are revised to allow the specified
uses throughout the buildings of the project except in the areas required for retail use.
4. The project shall comply with the design standards as outlined in Exhibit 14. As
part of the final site plan submittal and review process, the applicaiit shall submit
building elevations demonstrating how the proposed building complies with the
Fiorito Business Park Design Standards.
5. The general location of the proposed building to be developed on the subject site
shall be cansistent with the conceptual site pian dated Febiuary 5, 2010. The total
area of any proposed building shall be limited to 95,000 square feet. The proposed
storm drainage facility may increase depending on the outcome of the final site plan
review which could impact locatian of parking spaces and will be reviewed as pact of
the final site plan review process. The project shall comply with the retail space
requirements of Condition 2(B)(1) of Auburn Ordinance No. 5607.
6. A master landscape plan shall be prepared for the entire project site. A minimum
ten-(10)-foot-wide landscape area shall be constructed along the M Street NW as it
rises to intersect lSth Street NW and shall be designed in an innovative way to create
a gateway into the project. The mastex• landscape plan shall be prepared and
submitted as part of the final site plan process.
7. A master sign plan shall be prepared and approved by the City that coordinates
the exterior signs of tlie individual tenants. The sign regulations outlined in ACC
Chaptea• 18.56 for the C-3 zone shall apply for szze, heiglrt, and number of signs
permitted, Signage shall he part of tlie architecture of the building and not an
afterthought; however, the architectural design of the tenants' logos is not intended to
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be altered by this conditioti. The master sign plan shall be prepared and submitteci as
part of the final site plan process.
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8. All exterior lighting shall be designeci and eonstructed sueh that the direct
illumination does not uiireasonably spill over on adjoining properties. The exterior
ligliting sliall be coordinated for the site, including both parking lot lighting aud
building lighting. The exterior lighting plan sliall be prepared and submitted as pall
of the final site plan process.
9. Pedestrian walkways shall be provided that coruiect the parking areas to btiilciing
entrailces. Pedestrian connections shall be clearly clefined by textured paving,
including vehicular lanes, sucli as unit pavers, stamped concrete, or scored concrete.
These walkways shall be shown on the final site plan.
10. The concept of a recreational trail adjaeent to tlie wetland area an Parcel
1221049041 shall be part of ttie final site plan review process and potential
coniiection to the Iziterurban Trail exploreci,
11. Anienclments to this Business Park rezone rnay occur as follows:
a. The Plannirig Director may intez•pret the words and meaning of the certain
conditions in orcier to resolve coriflicts iii implementation.
b. If changes to the Ianguage of the rezone are required, such proposed
changes sliall be rev'rewed by the PlaTUning ancl Community Development Committee
of the City Council, or its suceessor. If the change is minor---less than 10%
change-tlien the ComYnittee shail niake a recanimendation to the City Council. If
the cliange is major-greater than IQ% modification-tlien the Cointnittee shall refer
the change to tlie Hearing EYaminer. The Hearizig Examiner shall conduct a public
heariiig and inake a reconitnendation to the City Council.
c. Amendments to the rezone shall oniy be initiated by the proper-ty owner of
the City.
Dated this lst day of March, 2010.
P ilOlbrechts
Czty of Auburn Hearing Examiner
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