Loading...
HomeMy WebLinkAbout02-04-2003MINUTES OF THE PLANNING COMMISSION MEETING FEBRUARY 4~_200;~ The regular meeting of the Planning Commission was held on February 4, 2003 at 7:00 p.m. in the Council Chambers of the Auburn City Hall. Those in attendance were as follows: MEMBERS: Garna Jones, Dave Peace, Peter DiTuri, Ronald Douglass, Renee Larsen and Yvonne Ward STAFF: David Osaki, Sean Martin, Dan Held and Patti Zook The following member was absent: Karen Ekrem The meeting was called to order by Vice Chairman Garna Jones. APPROVAL OF MINUTES: It was concurred by the Planning Commission that the minutes of the January 7, 2003 meeting be approved as mailed. Commissioner Peace made a motion, seconded by Commissioner DiTud, to approve the January 7, 2003 meeting minutes. The motion passed. ACTION (from January 7~ meeting) · Case Number ZOA02-0005 - Amendment to Auburn City Code (ACC) Chapter 16.06, "Environmental Review Procedures" by adding a new section 16.06.055 entitled "Categorical Exemptions" to increase the categorical exemption threshold for automobile parking from 20 to 40 spaces. Vice Chairman Jones commented that the public hearing was closed last month, and Planning Commission can continue discussion of the matter. Community Development Administrator Osaki confirmed the public hearing was closed, and a brief reminder of the issue. The issue was whether or not to increase the SEPA threshold for automobile parking lots to 40 spaces. The exemption is for automobile parking lots only. Other scenarios were discussed at the previous meeting. The exemption does not apply to areas encumbered by critical areas as these would still have to undergo SEPA review. Staff recommends approval of the amendments. Planning Commission member requested additional time to review the material. Commissioner DiTuri concurs with the staff recommendation. Commissioner Ward did not have further comments. Commissioner Douglass made a motion, seconded by Commissioner Peace, to recommend approval. The motion passed. DISCUSSION · Adult Entertainment Community Development Administrator Osaki advised the Planning Commission will receive a very large binder from the City Attorney tonight. Staffs intent was to conduct a study session in February, but in light of City Attorney He d's documentation which the Planning Commission will need to review, there will not be a work session this month. City Attorney Held made two copies of a binder that will help serve as the legislative record for the Planning Commission. It will be impossible for anyone to review the material within the next couple of Weeks in order to reasonably accommodate a work session. The binder includes a review material for an overview of the legal issues for the Planning Commission to review at their leisure. The matedal is not unique to the Puget Sound cities. He spoke of cities' attempts to develop a common approach to adult use businesses. The U.S. Supreme Court and State Supreme Court have said that all cities can borrow from other cities information related to negative impacts of adult uses. It is necessary for Planning Commission to review the matedal for adoption of the ordinance. This will establish the legislative record -1- MINUTES OF THE PLANNING COMMISSION MEETING FEBRUARY 4~_2003 to support their ultimate conclusions. He said that the Planning Commission needs to make decisions and, if challenged the City needs to be able to say what the Planning Commission reviewed. The City needs to proactively anticipate challenges. One master binder will be available for review in the Planning Department. Another binder will be provided to Planning Commission to cimulate among themselves. Planning Commission will have many issues requiring more consideratio[~. City Attorney Held said that some legal cases have been favorable to jurisdictions and some cases have not been favorable. He urged Planning Commission to write down their questions and concerns so that he can address at the next meeting. This is a good opportunity for the Planning Commission to review the material and identify their issues and/or concerns. Cities are becoming aware of studies done by other cities on the secondary effects of adult uses. These secondary effects are things that legitimize the City's ability to do certain things. He spoke of developing the legislative record for the ordinance which must be identified with precision. This is a point of vulnerability that attorneys defending adult use businesses challenge. City Attorney Held then distributed a sample ordinance to the Planning Commission for their review. Vice Chairman Jones informed City Attorney Held that she is not going to read the cases contained in the huge binder as she does not have time to do this before the next meeting. She requested that he provide a short synopsis or overview. City Attorney Held said that he endeavored to provide the Planning Commission with a copy of a memorandum that identifies some case law considerations and he can go over some of these cases in writing and supplement the binder with that information. A question was asked if, for the legislative record, does Planning Commission have to actually read the record. City Attorney Held said that Planning Commission needs to be comfortable with the concepts and studies and the cases contained in the binder provides this. He does not expect them to read the entire binder, but he does expect them to skim all of the material contained in the binder. He is not suggesting that Planning Commission prepare a 'book report', but the cases do have head notes which make referencing the material easier. Vice Chairman Jones asked if the Planning Commission as lay people will understand and City Attorney Held said the head notes are easily communicative of the matter. She said if there is a synopsis or highlight of each case, this would give Planning Commission direction. City Attorney Held referred to a memorandum he distributed previously to the Planning Commission. In response to Commissioner Douglass' questions, City Attorney Heid said this meeting will include and be part of the legislative record. The record for the ordinance will include this meeting, prior meetings were this was discussed, future meetings, public hearings, and include issues not yet developed. Commissioner Ward suggested that if Planning Commission reads the ordinance there is a guide post of what the Planning Commission has to do. Before Planning Commission can propose whereas language, they must look at some studies from other cities so the Planning Commission can say in good faith there are detrimental effects of adult use businesses. City Attorney Held believes the March 4~ memo and the sample ordinance should give the Planning Commission good parameters to answer their questions. Planning Commission must be able to say that they looked at the binder material, listened to reports and reviewed the material. Planning Commission must be comfortable with the direction they are going and develop a defensible background. Planner Martin mentioned that Planning Commission is not being tasked with getting the answers, but are tasked with providing the questions of what to protect. The legislative record is part of Planning Commission work. The whereas language in the ordinance are Planning Commission conclusions. The binder provides City's support of its determination. Vice Chairman Jones is concerned that Washington State is not doing anything to protect its cities. She is concerned about the amount of staff time being spent on developing measures to address adult uses -2- MINUTES OF THE PLANNING COMMISSION MEETING FEBRUARY 4,_2003 businesses. City Attorney Held said that one issue for Planning Commission consideration will be the distance separation or protection zone. The distance separation for one city may be different from another city and he provided examples. The same rule canno~ be applied to Seattle and Winthrop, for example. Adult uses are a constitutionally protected free speech issue. Every city is having to go through this exercise. The courts have accepted the 1,000 foot separation in sonde cities, but not 300 feet in other cities. Vice Chairman Jones wondered if Auburn was under more of a threat today versus five years ago. Planner Martin said that moratorium is in effect to give City opportunity to address adult use issues. Directive was given to staff and Planning Commission in response to an adult store that did not have live performances, but sold books and videos. Under the existing zoning they were permitted outright in that zoning district. Staff and Planning Commission were asked to consider zoning amendments that adult use provisions would apply to these types of businesses. He spoke of zoning code changes made in 1996 to provide protection measures with uses and facilities related to live entertainment and redefined adult use definitions. City Attorney Held commented that adult use businesses did want to make in roads into the community and something that may be tolerable to one community is not tolerable to another community. As an example, some cities are more concemed about panoram shows versus retail. Commissioner Douglass wondered if staff and City Attomey Held are talking about one regulation for all eight definitions. · Will the Planning Commission need to determine the secondary effects of each definition or a under one? Some definitions will bdng rnora secondary effects than others. City Attorney Held said that the definitions must be uniform. If Planning Commission says different measure for retail and different measure for video, Planning Commission must be able to defend determination with legislative record. City Attorney Held confirmed that secondary effects are related to some level of activity at the business. A panoram business might result in one concern that would not be related to small percentage of videos in store. If stock in trade increases, then it could approach secondary effects. He will provide Planning Commission with ordinances from other cities to acquaint Planning Commission with the issues. Planner Martin spoke of looking at the existing definitions and determining what is warranted for protection through the separation requirements. Staff made amendments to the memhandise matedal discrepancy from the definitions presented in December and he showed definition of 'adult entertainment merchandise' and gave a background of how this definition was developed and believes the definition adequately covers the issue. Commissioner Ward likes the additional language. Planner Martin said another issue is to define what constitutes 'stock in trade'. Staff is reviewing other ordinances to come up with something consistent. Commissioner Ward referred to 18.04.855 A and asked what is the rationale for the phrase 'excluding merchandise located in any store room, under the counter or in any other portion of the premises not open to the public'. Planner Martin said this portion is related to the inventory itself and then spoke about the 20 % limitation. Commissioner Larsen thinks that merchant will hide inventory if they know an inspection is coming. Commissioner Peace thinks the 20% requirement is appropriate. Commissioner DiTuri said business could have a holding area in a back room and stuff inventory there and then it would not count. Commissioner Peace agrees that the business could hide inventory in a back room and keep the door shut. Planner Martin reviewed the definition of 'adult retail establishment' and the 20% stock in trade requirement. The stock in trade definition is used by other cities, but some cities do not define stock in trade. Commissioner Peace suggested that instead of having exclusion of under the counter, say dollar value merchandise for sale. Commissioner Ward suggested adding ,on site, to the definition. -3- MINUTES OF THE PLANNING COMMISSION MEETING FEBRUARY 4, 200:~ Planner Martin talked about excluding material located in areas not available to the public. Auburn has warehouse and distributing facilities that could be used for potentially adult use business. They don't sell materials, but stock in trade says selling. Commissioner Ward'does not see definition could be used for a warehouse because it appears the reference is to commercial establishment not a warehouse. Planner Martin is not advocating but presenting the definition as an example of hqw other jurisdictions address the topic. He could adjust the language to address the direction the Planning Commission wants to go. It should be understood what stock in trade refers to. Commissioner Larsen wondered if the cost is for wholesale or retail and this appears to be a bit confusing. If a store is opening up it wants a clear definition of retail or wholesale price. Planner Martin said that the intent is the pdce of the goods being sold to customers. Auburn is home to many wholesale establishments and has warehouses in townl Several companies have warehouses that are open to the public, but sell at wholesale pdces and stock in trade is applying to wholesale. Auburn could be home to a manufacturer of a particular adult entertainment merchandise or product that has world wide distribution but is made in Auburn. Commissioner Larsen confirmed that you never know what a warehouse sells until you walk in and how would the public know what they sell. Commissioner Ward says that a warehouse that opens to sell to the public must follow the rules. Commissioner Peace suggested removing the 'stock in trade' definition. There is an assumption being made that stock in trade is what is in the store. You cannot count what came in boxes from UPS. He wondered if people even know the meaning of stock in trade. Commissioner Ward suggested having phrase stock in trade in the first portion. She is concerned about language of 'considerable or substantial'. Commissioner Ward said that since you have to have qualifiers, and qualifier of 'provides as a significant or substantial portion' that provides 20% in stock in trade, why are the words 'substantial or significant' needed. Why not just use the word 'percentage'? City Attorney Held said the City needs to make sure it can justify the pementage used and that you are able to defend and can show a legitimate nexus between the problem and the solution. You must be able to show where you determined the percentage. Planner Martin commented that the Planning Commission gets into having to defend the 20%, staff is trying to provide guidance. There is the potential perception of different impacts of stores selling items not necessarily meeting the definition of adult use (for example, Victoria's Secret) and that are not considered sexually oriented business. Another example is Spencer's, which does not prohibit minors, does not advertise the sexual material for sale, but still sells items that are sexually oriented. Commissioner Ward wondered if you have 20% in stock in trade definition, why ara the other five other categories. She is concerned about discretion given to Planning Director that could be problematic. City Attorney Held said that every city does different things in how to define adult uses. The ordinance distributed earlier was just an example and is illustrative of a tool developed by a committee. As a tool the ordinance may be helpful. Commissioner Ward said if rules are in place and everyone knows the rules, then the more discretion given to the Planning Director the more problems it causes. Rules are uniform. There can be a challenge where someone says it was arbitrary for the Planning Director to deny. Commissioner Douglass said rules need to be quantitative not qualitative. Commissioner Larsen commented that 20% of matedal is only what it sells. Point 4 should be part of item F definition. Item 4 is about inventory and inventory must turn in order to make revenue. She Wants it to read as clear, concise and easy to understand as possible. If the five items are removed part four should be part of F. Commissioner Ward said good point. Commissioner Ward then suggested moving item four to the definitions. Commissioner Larsen said this should not be the Director's determination, but part of the ordinance. It is not the Director's decision to not -4- MINUTES OF THE PLANNING COMMISSION MEETING FEBRUAR_Y 4, 200~3 allow. Planner Martin confirmed to move element four to text of definition under F. Commissioner Ward: as long as top part, first part of F. Planner Martin said 20 % of stock in trade based on items 1, 2, or 3. Considerable discussion occurred pertaining to the requirement of 20% of merchandise based on dollar value whether retail or wholesale. Commissioner Peace likes Planner M~rtin's intent that 20% of display area could be racks, shelves, or window display, etc., of the memhandise area. Commissioner Larsen brought up the distinction in talking about 20% of display area or 20% of inventory. Commissioner Ward wondered about the 20% of inventory, number in inventory or value of inventory. Planner Martin said 20% of the dollar value of the inventory; talking about 20 % of the dollar value and 20 % of gross products. Planner Martin will bdng back the revised definitions in the next Planning Commission packet and Planning Commission will need to talk about the 1,000 foot separation and uses that warrant protection such as YMCA. City Attorney Held offered that the YMCA does not typically provide a day care center as defined by the State. These are not a day care center pursuant to State definition. Kinder Care is liCensed by the State and meets the State definition. Drop off centers do not constitute as a day care center. The YMCA could show they warrant protection. City Attorney Held said the Planning Commission must become comfortable with the material and should contact him if they have any questions. The courts have universally recognized protection for schools, churches, parks, and residential areas. These four protected areas are almost universally used by jurisdictions. Planning Commission will have to determine if the SuperMall fits within what justifies an area for protection. Planning Commission would have to show that the mall is sufficiently used as an area for congregation of youth and this make it equivalent to the other four protected areas. Day cares may not be as protectable as the other four and City would have to show why they deserve the same protection. Planner Martin said the protection extends to pdvate schools such as Thomas Academy which is an academic institution - not for a dance school or karate school. He pointed out Thomas Academy and Children's Homes .Society and Kindercare on the map. He pointed out home day cares which have State licenses. The YMCA at its Current location is protected because it is located in Les Gove Park. The proposed new location for the YMCA could warrant protection and YMCA is assisting staff in the documentation that may warrant protection. He pointed out the gray area on the map which represents approximately 13.7% of the City which could be site of adult business. City Attorney Heid advised that Auburn will have an easier time grappling with the adult use separation area than other cities. Auburn could increase the distance separation and still have sufficient land available to site adult use businesses. PLANNING DEPARTMENT REPORT Community Development Administrator Osaki informed Planning Commission that a Terminal Park Neighborhood meeting was held and significant input received. Another meeting will be held with the stakeholders. Community Development Administrator Osaki said he received a telephone call from DSHS requesting maps from the City. DSHS may be looking at industrial sites in Auburn for siting of SCTF facility. Commissioner Ward said that Auburn's industrial sites are adjacent to schools and residential areas and this request is very disturbing. Commissioner DiTud advised that a particular site located at the'northeast corner of 30~ Street NE was singled out by DSHS on their map at the January 23, 2003 headng at Green River Community College. -5- MINUTES OF THE PLANNING COMMISSION MEETING FEB_.RUARY 4 2003 OTHER BUSINESS Vice Chairman Jones informed Planning Commission that she appreciates the nomination and appointment as the Vice Chair for 2003~ However, she was not at that meeting and wants to decline the position. The two Planning Commission members (Vice Chairman Jone~i and Karen Ekrem) nominated and appointed that evening were not at the meeting. She nominated Commissioner DiTuri to be Vice Chair for 2003 and Commissioner Douglass seconded the nomination of Commissioner DiTuri. The motion passed. Commissioner DiTuri was appointed as Vice Chair for 2003. INFORMATION * Planning Commission Rules of Procedure The Rules of Procedure were included in the Planning Commission packet for reference purposes. ADJOURNMENT: With no further items to come before the Commission the meeting was adjourned at 9:00 p.m. PC~AG~IIN 02-2003 -6-