HomeMy WebLinkAbout06-03-2003MINUTES OF THE PLANNING COMMISSION MEETING JUNE 3, 2003
The regular meeting of the Planning Commission was held on June 3, 2003 at 6:30 p.m. in the Council
Chambers of the Auburn City Hall. Those in attendance were as follows:
MEMBERS: Karen Ekrem, Garna Jones, Ronald Douglass, Renee Larsen and Yvonne Ward
STAFF: David Osaki, Dan Heid, Sean Martin and Patti Zook
The following member was absent: Dave Peace
The meeting was called to order by Commissioner Jones.
APPROVAL OF MINUTES:
It was concurred by the Planning Commission that the minutes of the May 6, 2003 meeting be approved
as mailed.
Commissioner Larsen made a motion, seconded by Commissioner Douglass, to approve the minutes.
Commissioner Ward abstained from the motion since she left the meeting early. The motion passed.
DISCUSSION:
Commissioner Douglass asked what item was postponed from the previous meeting and where is that
item. Commissioner Jones believes that item was postponed at the request of Commissioner Ward.
Planner Martin said that case was ZC amendment related to miscellaneous amendments. The ZOA
related to public posting. Only item for discussion tonight is ZOA03-0001. The public hearing in July is
on posting amendments. Commissioner Ward wants to know what kind of public notice will be done for
this change and wants to give staff direction to provide sufficient notification to the public.
Commissioner Douglass they have not had a chance to review the amendment and that he has a
number of questions. He asked for more time for discussion, but the hearing is in July. He wants to gain
knowledge about the issues ahead of time.
Planner Martin said the public hearing for the amendment is tentatively scheduled for the July meeting.
He was unaware that Planning Commission had additional questions.
Commissioner Ward commented that if the public hearing is in July, Planning Commission needs to
know about the hearing one month in advance and how to prepare for the meeting. Commissioner Jones
remarked that Planning Commission feels that the public hearing for the amendment is not appropriate
for the July meeting. Planning Commission wants opportunity for discussion prior to the public hearing
and suggested that discussion occur at the next Planning Commission meeting and public hearing in
August.
Commissioner Ward said that the Mayor can put an item put on the Planning Commission agenda. She
understood that and City Council can call ph. Procedurally if the public hearing on the issue is set for
one month she would like to have the information and know it is coming up for public hearing prior to the
hearing. Commissioner Jones said that Planning Commission has always had discussion prior to public
hearings in the past. Commissioner Ward inquired about moving to continue the public hearing, add the
item to the agenda for the July meeting for discussion, with a public hearing in August.
Commissioner Jones said if there is a time element involved, such as a Comprehensive Plan
amendment, there is the option of having a workshop so that Planning Commission can discuss the issue
and be prepared for the public hearing.
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Commissioner Douglass thought that Planning Commission did this carefully at the last meeting. It was
asked in the motion that this be put on the agenda for this meeting prior to a public hearing so that
Planning Commission would have a chance to know information before the meeting.
Chair Ekrem arrived for the meeting at 6:50 pm.
Commissioner Jones would like to say that Planning Commission is now giving direction to staff to deal
with the text changes for Code amendments. Planning Commission requested that it be on tonight's
agenda and it is not. Because of this, the public hearing cannot be held in July. If there is some kind of
urgency, which she does not believe there is, then Planning Commission could have a work session to
deal with this.
Commissioner Ward said for the July meeting to have a discussion and call for public hearing in August,
or Planning Commission call for public hearing in August, but no public hearing in July.
Commissioner Jones said that in her 10 plus years as Planning Commission member, she has never
seen any problem with the procedures. Sometimes there are instances where time urgency exists.
Commissioner Ward again said that for the July meeting to have discussion about the sign issues, call
public hearing in August or Mayor can call public hearing in August, but no public hearing in July.
Planner Martin pointed out that there are two different Zoning Ordinance amendment cases. One is
miscellaneous changes to Title 18. All elements in this amendment have been discussed by Planning
Commission at previous meetings. The landscape maintenance portion is for discussion tonight. It is
staff's intention to have the public hearing in July on amendments for ZOA03-0001. The public notice
posting requirements are being processed under a separate file, ZOA03-0002 and this one is the one for
further discussion.
Planner Martin said that staff had planned for two public hearings on the same night with the public
hearing on ZOA03-0001, for building height, landscape maintenance, etc., and a separate public hearing
on the posting requirements. Originally the public posting hearing was included under ZOA03-0001, but
then it was separated out. There are timing issues related to ZOA03-0001.
Commissioner Douglass asked if it still possible that ZOA03-0002 is also scheduled for month from now.
Planner Martin said based on administrative direction, yes; but Planning Commission wants additional
session to discuss. Commissioner Ward wants to make sure there is not a public hearing in July on the
signage issue, but have discussion on the signage issue.
DISCUSSION
· Adult Use Code Amendment Process
Planner Martin spoke about revising the provisions that staff thought were already resolved and were
brought up as discussion at the last meeting. Define businesses that provide 20% of their inventory or
sales, these businesses qualify as adult use under existing use. The 20% rule was adopted via City
ordinance in 1998, but the ordinance did not provide much detail. Planning Commission had requested a
comparison of other cities and reviewed Kent and Renton and then concluded that 20% was an
appropriate limitation and appropriate to define business as adult use. Staff assembled a comparison of
adult use business in adjacent jurisdictions and Kent defines adult use at 30%, Federal Way did not have
a specific definition, Sumner defined at 10%. He wondered if the Planning Commission is still
comfortable with 20% to qualify business as adult use.
Commissioner Ward asked if staff has a comparison of the number of businesses affected. Planner
Martin said that in Auburn the threshold in the range of 20% to 40% is going to be dramatic. One
business will be affected and maybe another if the threshold set at 20%. The City is not aware of any
other businesses that might be affected.
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MINUTES OF THE PLANNING COMMISSION MEETING JUNE 3, 2003
Commissioner Ward inquired if we start at 10% is it easier to increase to 20%. City Attorney Heid
confirmed that it is easier to increase the scope of what is included than open up to criticism as targeting
certain businesses. Commissioner Ward asked if 10% would be better and City Attorney Heid said this
might include more businesses than intended and gave an example.
Commissioner Larsen mentioned that businesses could have under the counter adult magazines and the
City would never know about them. Inventory turns are what we are talking about, the amount on the
floor and the amount sold.
Commissioner Ward wondered about a study of stores with 10% versus 20% versus 30% and the high
incidence of problems. City Attorney Heid said the large amount of material contained in the large
binder speaks to impacts. He is not aware of any studies that have good comparisons. It is safe to look
at what other cities in the area are doing. If the amount is higher than 30%, it opens the City to the types
of businesses you do not want, and if too Iow it could be too restrictive.
Commissioner Jones asked what is wrong with the City being challenged. City Attorney Heid explained
that if the City loses a challenge it faces liability. He advised Planning Commission to listen to public
testimony and evaluate the differences. A number of cities have had multiple public hearings to get
public input, listen to the evidence which all helps to fortify whatever decision is made. He said not to
target businesses not affected because if concerned they will show up at the public hearing.
Planner Martin told Planning Commission that they should anticipate a visit by Ms. Hepenstall, owner of
Lovers Package. He said that the Planning Commission has been discussing adult uses a long time, but
in a bit disconnected manner. It still might make sense to look at the entire amendment and have
discussion before the public hearing. Some of the definitions are being amended and Planning
Commission may have additional questions.
Planning Commission consented for staff to bring forward all the changes for review in one document.
Commissioner Ward would like to hear more information about what the 10% to 30% means to City and
businesses. She is not sure there is Planning Commission consensus on the percentage.
Commissioner Douglass has reviewed the large binder and noticed a number of times that in setting the
numbers it is very important to show that a thorough study was done, and what is included in the
legislative record counts. City Attorney Heid said that the large binder is a big chunk of the record, in
addition to the public hearing testimony received, and everything that contributes to the decisions and
shows justification of the decisions made.
Commissioner Ward said that Planning Commission received recommendation not to have the
conditional use permit process and Planning Commission agreed. The adult use would be zoned outright
for permitted uses and wondered about any public notice of adult use business coming into the
neighborhood.
City Attorney Heid said that if the City has conditional use permit (CUP) process for business that the
Constitution has recognized as Constitutionally-protected, unless you have specifics of what the criteria
is to be granted or denied, then this opens up the City for Constitutional challenge. These penalties
could be significant. For CUP process, you have to sit down and define the criteria, and how do you
define all the criteria? The would be an onerous task of defining such criteria. The time to define criteria
is now, otherwise how can the Hearing Examiner apply it down the road?
Commissioner Ward wondered if a business comes in and the use is zoned outright, is there no provision
for public notice? If a CUP, then there is public notification. If someone wants adult use business, and
there is no CUP process, there is no hearing. The business could apply for license and open with no
public notice.
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Planner Martin said this would not be a land use action; there could be potential environmental impacts
from building construction. However, under an outright permitted use, this would not be a land use
action. The land use action provides the public notice.
City Attorney Heid spoke about the double-edged sword and explained the risks. If citizens had a public
hearing, what would the result of the public hearing be? If a business wants to come to town, they can
open if they meet the threshold of separation requirements and do the other things that the Code
requires. Anything more that we do would be perceived as depriving them of their Constitutional rights.
Commissioner Ward
being required. She
confirmed that there
gave a scenario of a business wanting to locate in downtown and no public notice
wanted to know why public notification could not be done. City Attorney Heid
is no public notice requirement. What would be the purpose of the notification?
Chair Ekrem spoke about zoning criteria and does not think it is appropriate to require a business to have
to go through public notification. Commissioner Ward believes that parents would want to know about an
adult use business there. Chair Ekrem said that the City can legislate all kinds of things, and does not
think this is a good idea and goes above and beyond what the City should do. She does not think that
public notification should be a requirement.
City Attorney Heid said that if the City held a public hearing or required notification, it has to be for a
specific purpose. If the City throws a roadblock into a permittable use, this will open the door for civil
rights action.
Chair Ekrem spoke of the implication if there is notification, it implies that the citizens can change the
situation. Planning Commission has said it does not want the CUP process. If people are given the
opportunity to comment, what is the point?
Commissioner Ward is not asking for a public hearing. She spoke of the notice requirements that are
done for level 3 sex offenders in town and this gives the community an opportunity for kids not to go near
the business. No hearing is implied; only a communication to the public that an adult use is going in.
The same kind of notification that is done for sex offenders, no hearing is held, business would not pay
for the notification, so would this be a problem?
City Attorney Heid expressed that Planning Commission needs to be very cautious about anything that
could allow someone to claim to do Constitutional business and that the City is putting up roadblocks.
He will check and see if other cases have employed device as described by Commissioner Ward. He is
unaware of any cases that focused on this. This idea is raising red flags with him and he will see if
anyone has done any kind of notification to the community.
Commissioner Jones believes that if the newspaper is notified that an adult use business coming in, they
will write an article about the business just like they have written articles about the casino and
amphitheater. This would let the community know about the matter and would not put up any
roadblocks. City Attorney Heid cautioned that if a citizen mentions the matter to the paper, it is his
choice, but the City cannot contact the newspaper.
Commissioner Ward wants to know what is the City's responsibility. There are risks associated with adult
use businesses. As part of the process, the City should notify citizens. How can this be wrong? The
legislative record shows there are risks with these facilities, how is this wrong? She asked again what is
the City's obligation to protect citizens if it knows risks are involved?
City Attorney Heid spoke of the need to develop an ordinance that identifies when, where, and under
what circumstances these business can go in. He will try to find examples where this was done. He
does not want Auburn to be the first one to do this which might invite adult use businesses to town to
challenge. He will do his best to find out whether there are any examples or ordinances in the country
that did this.
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Planner Martin referred to item 2 and is not sure about the 20 % issue. Ms. Hepenstall wants to be
involved in the process. Staff could ask her if she could give guidance about percentage of business.
She received a copy of the agenda. Commissioner Larsen suggested that Ms. Hepenstall write a letter
how this change affects her.
Planner Martin said that in staff comparison and previous discussions with Planning Commission that
other cities had as high as 50% and did not see any less than 10%. Chair Ekrem thinks Planning
Commission had recommendation to put the 20% forward which seems to honor the concept of keeping
these businesses in proper structure and meets City philosophy of minimizing these types of businesses.
Commissioner Ward said that the Planning Commission needs to hear from adult uses businesses. She
thought the City was going to get information from the businesses before deciding on the 20%. Planner
Martin said that the 20% was adopted in 1990 and Planning Commission at that time thought 20% was
appropriate because they reviewed other regulations. The City will receive input from businesses and
see how the 20% would affect them.
Planner Martin referred to item 2, design standards for adult use businesses and mentioned that some
cities provide these. There is proposed language in the packet that was adopted from the City of
University Place. At one time, Planning Commission talked about issue of visual displays.
City Attorney Heid said that development standards are not typically done, and there is very small
minority of exceptions of what is generally done. Chair Ekrem wanted to confirm with City Attorney Heid
that anything Auburn does that is unusual or different must be cautious. Few cities employ development
standards for adult use. If Auburn has development standards to adult use requirements to blend in with
other businesses, but not the same requirement for other businesses, this could be a problem. This
could raise the specter or argument that adult use businesses are being treated differently.
Commissioner Larsen said that adult use businesses have opaque windows. City Attorney Heid said that
for cabarets this is done because you would not want someone to look in and see and this is also a police
issue. The windows are opaque for their own protection.
Commissioner Ward wonders if the way the section is written, if a store has 20% of such merchandise in
the back of the store, would this requirement not allow any merchandise or activity at the establishment
and would that be problem? Planner Martin said that Commissioner Ward's interpretation is correct. If
an adult use business, they cannot display anything that is visible including anything sexually explicit.
She requested that this section be clarified.
In response to Commissioner Larsen's comments, Planner Martin said that Auburn does not have adult
use development standards, but other cities do. Does Planning Commission want to look at these
requirements for inclusion on the Code? He provided information on the sign code committee.
City Attorney Heid said that Planning Commission could have multiple public hearings. Law only
requires one public hearing, but there is no prohibition on multiple meetings.
Commissioner Ward mentioned that signs can be an eyesore and suggestive. Planner Martin spoke
about inclusion that business meets every requirement of the zoning district in which it is located. He will
tighten up the language also.
Community Development Administrator Osaki pointed out that the single building color is to avoid the
garish colors on business like DejaVu. Commissioner Larsen expressed concern about holding one
business to one set of standards and another business to another set of standards. Commissioner Ward
wondered if the development standards are seen as a way to minimize risk. Is there a problem if shifting
discussion from development standards to aesthetics versus underlying goal? City Attorney Heid spoke
of employing reasonable regulations and then showing justification for the regulations.
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Planner Martin mentioned that 'amortization' discussion was started at a previous meeting and City
Attorney Heid will continue the discussion. Currently, Auburn does not have any provisions to require
amortization of businesses that become nonconforming. City Attorney Heid strongly recommends that
amortization be considered. The City would require that businesses that become nonconforming move
to an area where they can meet the separation requirements. The draft ordinance suggests amortization
of one year with extension. City Attorney Heid advised that case law has recognized amortization of only
90 days and most cities have not employed amortization period of 90 days. Washington cities have
proposed amortization similar to Auburn. If the amortization period is too long, you run the risk of
minimizing the argument of an adverse impact if the business can stay too long. Short amortization
periods are stressed. Amortization is not similar to grandfather clause which is for other uses.
Amortization allows business to move to an area where that business will have less of an impact. Court
cases have upheld amortization as long as there is some flexibility and he gave examples. Also
important is the opportunity for an extension of the amortization. Some Washington cities have
employed greater scrutiny. If there is criteria in granting or denying the extension, you could get sued.
The big question is the need to amortize when business is not in conformance. Another issue is how
often a business would be required to move if a protected use moves inside the established protection
area. These types of businesses must be allowed because they are constitutionally protected. If you do
not recognize the amortization period then you weaken the stance that adult use business have an
impact. Courts have recognized the legitimate rights of municipalities to protect certain land uses.
Chair Ekrem used an example of a business meeting the 20% requirement and classified as adult use
with appropriate zoning, and a day care comes in, does the adult use business have an opportunity to
reduce its inventory below 20%? What would be the process to ensure the inventory is under 20%? City
Attorney Heid spoke about enforcement of this and that the business could reapply for a different license.
Commissioner Larsen gave a scenario, of a business open for four years and business should have been
considered an adult use, and now it comes to the City's attention, how can the City say the business is
bad for the area if the business has been open for four years? City Attorney Heid said that if no
enforcement action because the City did not know, as long as we have the ordinance supported by the
legislative record, the ordinance will stand or fall based upon the legislative record, not the business
having problem one or problem two. Adult use business managers like to push the envelope which
increases problems.
Planner Martin commented that discussion will continue in July. Staff is inviting public involvement and
has initiated conversations with Phyllis Hempenstall, owner of Lovers Package, regarding public notice
and public involvement. He listed what types of public notification will be done. Planning Commission
agreed to similar extensive notification as was done for the SCTF matter. Planner Martin commented
that in July Planning Commission will be able to look at the entire amendment packet, including the draft
ordinance to reflect changes as discussed
Chair Ekrem said that she is going to be out of State from the end of June to July 6 and would appreciate
it if she could receive information by June 25 so that she can take it with her. Otherwise, she will not
have time to review the material in its entirety. Commissioner Ward had also requested supporting data
to discuss the percentages.
Planner Martin mentioned that the moratorium might need to be extended, but the extension would not
be a problem. City Attorney Heid confirmed that moratorium extension is possible. In fact, Seattle has
had three to four years worth of extensions.
· ZOA03-0001 Text changes to Auburn City Code Title 18 - add new language regarding landscape
maintenance requirements
Planner Martin provided background on miscellaneous changes proposed so far. He mentioned that the
background summary does not include the draft ordinance. He provided the Section 18.50 for reference.
He explained landscaping provided through the SEPA process to address loss of vegetation through
development. Lack of landscaping maintenance needs to be addressed.
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Commissioner Douglass referred to monopoles which were discussed earlier and inquired about the
number of arrays on the pole. Planner Martin said the standard for arrays are not proposed for
amendment. In response to Commissioner Douglass' questions, Planner Martin explained what is meant
by Type I, Type II and Type III landscaping.
Commissioner Ward asked what problem exists in the City that prompts this text change? Where did the
proposed language come from? Planner Martin replied that the Planning Director has proposed the
language. Commissioner Jones offered that PCDC has also been looking into the landscape
maintenance issue.
Commissioner Ward asked if there has there been consideration to allow for time or a grace period. It is
expensive to plant trees and we are in a recession. Auburn is trying to attract businesses. Where is the
City on working with businesses to bring into compliance? City Attorney Heid said that the Code
provides opportunity for notice.
Commissioner Ward asked if someone decides that a business improperly pruned trees, what type of
notice is given to the business get into them into compliance before the government is crawling on them?
City Attorney Heid said that built into the language is a notice provision which they will try to make
flexible. If there is no safety concern, person will have plenty of time to fix. City is not going to be 'storm
trooping' these things. City Attorney Heid said that occasionally the City will come in and clean up
property and charge the property owner. This only happens after certain other attempts at correction
have failed.
Commissioner Larsen knows that some cities give 30 or 60 days notice and if not done, then the City
does it for them. Commissioner Ward told about complaints from citizens related to code enforcement
and that people are being 'picked on. City Attorney Heid advised that he has not seen any complaints
that are meritorious complaints of code enforcement officers. Staff receive complaints which then
prompt code enforcement to visit.
Commissioner Ward spoke about a code enforcement officer that tried to do something illegally at her
office. As a business owner, what is the City doing constructively to allow business owner time to fix the
problem? Have code enforcement officers running out giving tickets is not constructive. Commissioner
Jones does not believe there are enough code enforcement officers to give tickets. The amendments go
along with the City's application for being designated a Tree City USA. The Mayor's agenda is to move
forward on this and she thinks the language is a great step forward. The ordinance does not mean that
code enforcement will come out the next day knocking on doors. The ordinance does not pertain to
residential, just business properties.
Commissioner Ward said that code enforcement officers respond to complaints. There needs to be a
constructive mechanism so that people are not persecuted and are given the opportunity to work out a
solution. Planner Martin commented that the City has already been very accommodating to businesses.
If a person makes good faith effort for compliance, the City works with him.
Commissioner Ward spoke about her experiences with a City staff person. She is on record with the City
Council about the matter. She does not accept that everyone is an angel. She does not accept that
things cannot get out of control. The City needs to be part of the solution. Planner Martin spoke about
compliance with the City code, permit issued and gave an example. Permit obtained, installed
landscaping, but landscaping pruned to point that it is no longer landscaping, or was not maintained
property. He asked what should the City offer that is more than we currently do?
Commissioner Ward spoke about mitigation hearing. There is no formal mechanism for person to sit
down and say here is the situation. How to meet objectives in a way that people will want to meet the
objectives? She wants a more formal process. Commissioner Douglass said there is an appeal type
process already in place, why write something in between? Commissioner Jones said that her
experiences have been good and that the City was reasonable in its expectations and requirements.
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MINUTES OF THE PLANNING COMMISSION MEETING JUNE 3, 2003
Chair Ekrem suggested adding a section that deals with notification process. City Attorney Heid referred
to Chapters 1.24 and 1.25 that deal with enforcement. Chair Ekrem wants to see the chapters and how
they apply. City Attorney Heid will provide Chapters 1.24 and 1.25 which are the criminal and civil
enforcement sections. He mentioned providing minimal wording of how to provide notification to those
who are out of compliance. There are several sections that reference 1.24 and 1.25 and each talk about
different parts that may or may not apply.
Chair Ekrem reiterated that Commissioner Ward wants language that talks about mitigation. Planner
Martin will look at provisions to make sure they are clearly defined. He offered that one approach taken
in permit processing, speaks of the need to provide information by a certain date, or schedule of when
complete, or if you cannot complete by certain date, what are you doing to resolve the problem.
Planner Martin mentioned ZOA03-0001, which has components that Planning Commission has reviewed
previously, and there are applications that need to have proposed amendments resolved either as
proposed or denied so applicant can continue the process. There is a need to have a public hearing in
July. Ideally staff would like to include all of the sections previously discussed at Planning Commission
meetings such as building story requirements, Lakeland fence, monopole definitions, parking standards,
and landscape maintenance.
As these amendments proceed to the public hearing, Planner Martin asked if the Planning Commission
has any reservations on the topics? The text amendments that are time sensitive are the building height
and Lakeland South amendments. He will compile information in advance of the meeting. The
landscape maintenance is a component of the other.
Commissioner Ward made a motion, seconded by Commissioner Larsen, for call for public hearing on
ZOA02-0001. The motion passed.
PLANNING DEPARTMENT REPORT
Community Development Administrator Osaki a distributed a packet containing follow up information
from the recent joint Planning Commission/City Council meeting. Chair Ekrem thanked staff for the
additional information and their excellent effort on the material.
ADJOURNMENT
With no further items to come before the Commission the meeting was adjourned at 9:15 p.m.
PC~AGND\MIN 06-2003
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