HomeMy WebLinkAbout02-03-2004MINUTES OF THE PLANNING COMMISSION MEETING FEBRUARY 3, 2004
The regular meeting of the Planning Commission was held on February 3, 2004 at 7:00 p.m. in the
Council Chambers of the Auburn City Hall. Those in attendance were as follows:
MEMBERS: Dave Peace, Karen Ekrem, Ronald Douglass, Renee Larsen, and Kevin Chapman
STAFF: Paul Krauss, David Osaki, Sean Martin, Dan Heid and Patti Zook
The following members were absent: Yvonne Ward and Garna Jones
The meeting was called to order by Chairman Karen Ekrem.
REGULAR MEETING - 7:00 PM
· Approval of Minutes
It was concurred by the Planning Commission that the minutes of the December 2, 2003 meeting be
approved as mailed.
PUBLIC HEARING
· ZOA03-0003 - Amendments to Zoning Ordinance Chapter 18.74, Adult Uses
Chair Ekrem opened the public hearing. The following written comments were distributed to Planning
Commission: Marylyn Pederson dated and received February 3; Helen Spencer dated January 25 and
received January 29. Also distributed was a hard copy of Commissioner's Ward's comments e-mailed to
Planning Commission members on February 2.
Senior Planner Martin commented that the Planning Commission has been reviewing the issue for some
time and began discussions in October, 2002. Staff researched and City Attorney prepared studies and
focus is on three general elements for Planning Commission discussion. He explained how Zoning Code
amendments are done. He explained the Planning Commission recommendation process. The three
focus elements are definitions of what types of businesses are 'sexually oriented businesses', examine
which zones shall permit 'sexually oriented business' and recommend whether businesses that become
nonconforming as a result of the adoption of the proposed amendments shall be 'grand fathered' at their
existing location or if those businesses shall be subject to 'amortization'.
Senior Planner Martin talked about the 'adult retail establishment' definition, convenience stores that
segregate a portion of floors dedicated to videos, magazines, etc. Some convenience stores could be
subject to adult regulations. There are a couple 'blank' spots in this definition which will be filled in by
Planning Commission recommendation such as the need to define what portion of an inventory defines a
business as an adult use, where to set the percentage and volume of inventory. The mean percentage
of jurisdictions staff reviewed is 30%. The range in Washington is generally between 10%-30%; some
jurisdictions have 0% others are at 50%;. Some areas don't spell out and say what is meant by
'substantial'. It is more defensible if you say a certain percentage versus 'substantial'.
Senior Planner Martin then spoke about the separation requirements and pointed out grey areas on the
map which are capable of meeting separation requirements. He explained the 1,000 feet separation
requirements from the listed sensitive receptors. Senior Planner Martin spoke about determining the
1,000 feet separation distance and how to measure the distance.
Senior Planner Martin provided information on grandfathering versus amortization and that the City can
adopt either provision. The amendments as proposed would allow sexually oriented business as uses
permitted outright in the C3, M1 and M2 zones subject to meeting separation requirements. He spoke
about uses being permitted outright versus conditional use permit requirements. The goal is to examine
regulations and to examine direction of City's needs. There has been approximately 15 hours of
presentation to the Planning Commission.
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Commissioner Chapman wondered if the SuperMall meets requirements and Senior Planner Martin said
the amendments provide additional definition and the mall appears to meet requirements. A typical strip
mall wouldn't meet requirements because it is not considered a place where children congregate. City
Attorney Heid cautioned Planning Commission to avoid applying conditional use permit (CUP)
requirements to adult use business because the Supreme Court, in determining legitimacy of regulations,
directly tied it to available land in the City. If CUP is imposed on top of other regulations, the City can't
justify to courts what land would be able to be used. The City would be asking for problems and creating
possible liability if it employed CUP elements for adult use businesses.
Chair Ekrem opened the public hearing and provided instructions to the audience.
Julie Molen, 714 Hi Crest Drive, recently accepted a proclamation from the City to support families. She
is encouraged by staff and Planning Commission comments in trying to do all to minimize adult business
influence and keep out of reach of kids and families. The purpose of her organization is to strengthen
the family, support healthy family systems and provide an environment for stable families. Porno is
addictive and a destructive force in families. She encouraged City in making the best legal decisions to
keep adult uses as minimal as possible.
Mike Bocatch, 2304 A Street SE, cannot limit his comments to a few minutes. He asked about the notice
of public hearing which references a WAC number and what is the connection. He referred to page 2,
the dollar value on site and said this can be skewed because expensive jewelry can be added to
decrease adult oriented inventory. Revenue derived would be a bookkeeping nightmare. The term
'sexually oriented business' is a problem because there is a distinction between adult retail versus adult
entertainment. He has a problem with the grandfathering provision and believes it is an unreasonable
copout. He has concerns about crime. Regarding supervision, will this require more bureaucracy to be
in place or developed? How will the City isolate dangerous conduct? Regarding amortization, some
malls use covenants for restriction. He asked about audio porn and computer downloads.
Senior Planner Martin explained the WAC in SEPA rules. Under State SEPA rules, Zoning Code
amendments must go through the SEPA process. The City issued a Determination of Non Significance
and SEPA process was concluded prior to the public hearing.
Chair Ekrem asked Mr. Bocatch to give his document to staff in order to address issues. Staff could
contact him personally if necessary. Planning and Community Development Director Krauss said that
Mr. Bocatch's comments appear to be very detailed, the City could respond in writing and open the floor
to others who have briefer comments.
Paul Warfield, Pastor of North Auburn Church, read a portion of his comments. Owners love money
from these businesses. He spoke about affects of alcohol and the types of customers from these
businesses. He spoke about crimes against children. He wants City to close current businesses. He's
been a King County Police Chaplin for eight years and has seen first hand effects of these businesses.
He requested the percentage at 0 and restrict businesses as much as possible. These businesses affect
people and he encouraged the City to go one step further. He spoke about multiple police reports and
high profile cases and investigations reveal porno on computers and in home. What public good do
these businesses bring?
Jay Bullsen, 13510 SE 340th Street, missed initial part of the presentation because he arrived late. He
strongly supports amortization. He requested information on how the City came to the conclusions
presented.
Senior Planner Martin spoke about coordination undertaken which was multi faceted. Staff contacted
other jurisdictions including some that have more experience with adult businesses than Auburn to seek
their guidance, direction and advice related to how they handled scenarios in their cities. Staff
researched via the internet and via Municipal Research Center and contacted business owners in town.
Staff had contact with a number of citizen groups who are concerned and active in the City and also
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sought their input and feedback. Additional notification was provided beyond the legal notification
requirements. There were articles in the South County Journal and Tacoma News Tribune. Tonight's
public hearing is an additional forum and to seek comments regarding grandfather versus amortization
and separation distance. Staff doesn't anticipate the process being completed tonight.
Commissioner Douglass referred to and pointed to the very large binder of material prepared for
Planning Commission review by the City Attorney. The binder contains details on what courts have
allowed.
Ben Cross, Algona, is Pastor of Grace Community Church in Auburn, commended the Planning
Commission for study of the issue. He is concerned about the well being of the community, crime, and
secondary effects of adult uses. He urged that the City use the smallest number possible in percentage
and urged the City to use the amortization option. He recommended that the City give consideration to
law enforcement to provide location for businesses versus scattered in the City. The 1,000 foot distance
could create a situation of businesses being scattered and different law enforcement to monitor. City
should consider creating adult zone to localize these businesses.
Commissioner Peace remarked that if you put adult businesses together you could get more secondary
effects. Commissioner Larsen mentioned that the binders contain information that when adult
businesses are localized in one area this makes crime centers versus businesses being separated from
one another.
Senior Planner Martin provided information on amortization and grandfathering. He provided information
on the moratorium established in 2002 that has been extended twice for six month intervals. The
moratorium expires March 3 and City Council could likely extend the moratorium again. He said that
based on site inspections he counted up to four businesses which may be affected by the proposed
regulations. If set at 30% three of the businesses fall under 30%. He provided information on
parameters for the business to comply. There is one of two choices. If City adopts amortization,
business could make modifications and no longer qualify as an adult use. If grandfathered, business
could stay as it currently exists.
Rick Morton (no address given) was advised by police that it wouldn't be safe to reside where he lived in
the southeast portion of Auburn. There is a concentration of Iow income apartments in Auburn and crime
from these apartments. He asked if what Auburn is doing is based on what other cities have done and
what courts have done. He says the wording is incorrect and spoke about porn on his cable that wasn't
filtered correctly. The cable company said it was 'adult entertainment' not porn. Wording is important.
Porno provisions is more correct wording and he suggested wording change slightly. He suggested the
matter be put to the citizens for a vote because the Planning Commission is not qualified. This should
be written up as a referendum. If it costs a couple million dollars to fight the issue, big deal. The vote
would get Planning Commission and City Council off the hook. These businesses change the face of
Auburn.
City Attorney Heid said the reality is that the Washington State Supreme Court and US Supreme Court
handed down strict guidelines of what cities can and cannot do and the limitations are strict. This is the
reality that shapes what cities face.
Alice Dean, 1323 57th Drive SE, says that the law says the City cannot prevent additional businesses.
She wants the City to take the opportunity to make it as difficult as possible for these businesses to
locate in Auburn. She spoke about good changes to City such as the new logo. She wants City to do the
maximum possible to improve Auburn and make the community a better place. The businesses need to
be limited for the good of families who contribute to the City.
City Attorney Heid offered that an advantage Auburn has over other cities is that it can do additional
separation requirements. Some cities have had to do less than 300 feet separations. Auburn is able to
keep adult businesses at greater distance due to its geographic layout. Every city has or is going through
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this process. The law requires that all cities must accommodate this alternate form of expression and
must provide some portion of their city's territory be available for this alternative form of expression.
Courts have said if cities don't allow a reasonable portion then cities are violating the rights of these
individuals. Other cities have fought the fight and lost. No change in the courts attitude is expected and
courts have been consistent.
Mel Johnson, 5001 Quincy Avenue, asked about making the code as restrictive as possible. He likes the
idea of percentage of merchandise; more of quantity of merchandise or dollar value of merchandise
because business owners have strategies to 'fudge' numbers and the City needs to tighten loopholes. He
wondered as land use changes, is it possible that the adult use locates and a church comes in does the
store need to move. This is not what Auburn stands for and he doesn't want adult businesses in town.
He supports amortization versus grandfather. Once these businesses are established, you can't get rid
of them. He encouraged the City to increase barriers and defend neighbors and make it less desirable
for these businesses to come to town. He suggested that City increase barriers by increasing the tax on
the land. He likes idea of decreased signage and no explicit signage allowed. How do businesses report
and don't sneak about percentages?
City Attorney Heid remarked that in developing the ordinance he has reviewed the language with city
attorneys for adjacent cities who have similar ordinances. They have strategized to see what regulations
cities can employ that are defensible and meet court criteria. With this option, he has tried to put Auburn
in a good position by having an ordinance that meets criteria and is not vulnerable to suit.
Mike Young, 5010 Mill Pond Drive SE, feels passionately about this and was against the business that
tried to open at shopping center on A Street SE. When people can get around the regulations they will.
He desires that community be a safe place and protected. If the City allows a business that people say is
an environmental hazard regulate business to make difficult to set up shop. Fight and let voices be
heard.
Annette Gilderson, 1408 58th Way SE, wondered if there is a way to let business owners know that they
are not popular.
Senior Planner Martin related about a particular business in south Auburn that left town prior to the
original moratorium. Adult video/bookstores were then not subject to adult use requirements and no
discretionary decision was to be made because the use was permitted outright in the C3 zone. You can't
require specific public notice for adult use because you would then have to notice the public for each and
every business in town. If these amendments were in place, business couldn't have located there
because these amendments provide greater limits of where they can locate.
Rick Morton, 1808 Tacoma Point Drive, wondered if it is possible to outbid these people and if the City
could have a fund to outbid. If adult use wants to rent a facility, will the public know about it? City
should extend the moratorium and think outside the box. He spoke about collecting funds to fight adult
businesses. City Attorney Heid advised that the City is restricted by the State constitution and cannot do
this. The Washington State Supreme Court limits what cities can do. State constitution prohibits cities
from expending money for other than municipal purposes.
Dykes Christenson, 2811 R Place SE, encouraged the Planning Commission to come up with the most
restrictive ordinance possible. He spoke about the effects of sexual businesses such as child abuse and
an increase in crime. He spoke about getting statistics from the national registry for missing/lost children
and read a paragraph of effects of adult businesses.
Zeke Evans, 5714 Olive Avenue SE, thinks Auburn should do as much as it legally can to limit these
businesses. Regarding the proposed sites for new schools, the City should make sure these are included
in the protected areas. Regarding the comment about land use notification, people know ahead of time
where the business is coming in, citizens could come out and protest. If City has a way to inform citizens
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of what is planned and citizens take it upon themselves to show no support. And then citizens can
prevent adult business from opening because of a huge outcry.
City Attorney Heid advised that the courts have allowed as little as three percent of the land area be
available for adult uses. The City cannot justify more than a 1,000 foot separation and no court has
accepted greater than 1,000 feet. Auburn has the SuperMall and must define the mall as a protected
zone. The mall is an attraction for kids and courts have recognized these.
Planning and Community Development Director Krauss explained the public notification process. The
City found out about a certain adult business when they came in for a business registration. The City
would be exposed to liability if it picked and choose among businesses and held some open to public
ridicule. The City is not in a position to do this.
Frank Rice, 1811 F Street SE #2, supports the amortization approach. He wants to see in the ordinance
the minimum percent of adult activity outside the controlled area.
Mr. Bocatch said the 1,000 foot restriction is an arbitrary number pulled out of a hat. Regarding the
SCTF, the 1,000 foot barrier had a flaw and he gave an example. He prefers amortization. The
ordinance is not written strongly enough.
Phyllis Hepenstall, 901 West Main Street, claims she is an expert witness, CEO of Peekay, Inc., the
parent company of Lover's Package, and is passionate about her freedoms and believes in her business.
She heard testimony from community members and says her business has been under much scrutiny in
many jurisdictions. She has studied the volumes and read cases and is able to defend her business
rights and freedoms. She challenges statements related to retail. She has watched the laws change
since 1970 and challenges all studies. She has operated her business in town for over 20 years and
doesn't have criminal activity. There are no studies of secondary effects of adult businesses, no decline
of property values. In Tacoma property values continue to rise. City's concerns started with a business
in south Auburn. If the previous ordinance is too loose then the City would be infiltrated now with these
businesses. What problem is City trying to fix? What and who is the enemy? It is not prudent for
Planning Commission to recommend to City Council to pass an ordinance that says let court decide.
There is the issue of censorship. She cautioned about what is and is not porno, and who makes decision
of what can and cannot be sold? What are the imposed sanctions? Be careful because she will fight
vigorously for freedom. Her customers are women and couples and she provides positive shopping
venues to enhance romance. She read their mission statement. What is the 'adult' definition? She is
proud to part of the Auburn community and shares peoples concerns about 'those businesses'. She has
served on Chamber boards and service boards. She embraces community values. These businesses
serve a purpose and City should let people vote with their disposable income. The proposed ordinance
regulates a business in operation for over 20 years and saying that it could be illegal. The facts don't
support the proposed ordinance and she wants to give more detailed input. She then complained that
someone from the City went into her store. She submitted six pages of testimony.
Joel Feinstein, 2901 Auburn Way North, owns Video Blue 2, wanted to confirm Planning Commission
received his bound document presented at an earlier meeting. He is in a shopping center on Auburn
Way North across from the Mezcal restaurant. He sign doesn't say adult, he does not advertise in the
media, his business is Iow key and discreet, store signs state only 18 and older may enter, windows are
obscured. He operates 10-10 seven days a week, items are for off premises only, male clientele, there is
no blight at his business. There are police violations at bars, but not at his businesses. He is willing to
work with the City regarding business operations and whether they cooperate or litigate is the City's
choice. He spoke about court decisions regarding adult off premises use. If the City wants to prevent
proliferation of adult use then do what Bellevue and Kent did. They grandfather existing nonconforming
uses. Let the community have an avenue of communication as mandated by the court. Bellevue and
Kent haven't suffered.
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There was no additional public testimony and Chair Ekrem closed the public hearing. She called for a
recess at 9:05 p.m. and the meeting reconvened at 9:15 p.m.
Planning Commission Deliberation
Commissioner Peace understands the moratorium ends March 1 and is he is not ready to decide the
matter tonight. Public testimony has been interesting. He wondered about some opportunity to deal with
the uses in the ordinance. City Attorney Heid said he plans on moving forward with another moratorium
followed by a Council public hearing. City's extension of the moratorium is defensible because City can
show activity on the matter, Planning Commission had public hearing and deliberations. He said that
City is safe on the distance requirement because Auburn is in a better position than other cities due to its
geography and can employ larger distance of separation and an appropriate percentage would still be
available.
Commissioner Peace wondered if there might be ways to deal with retail stores that cater more to
couples and/or women differently than the hard core video/magazine stores or topless places. How have
other cities dealt with the different stores? City Attorney Heid spoke about similarities. If there are other
devices to say that clothing not to be considered such as at Frederick's of Hollywood would not be
defined as an adult use by most definitions.
Senior Planner Martin spoke about defensive issues. In Lacey or Olympia there were two different
standards/tests. The places of live entertainment have one set of standards and one distance separation
versus stores like the Lover's Package with different performance standards and tests. He is not
proposing or proclaiming legally defensible, but there are some jurisdictions that have done this. With
Planning Commission direction, staff could investigate this.
Commissioner Peace said an issue for him is that business like Lover's Package or similar are
considered to be mainstream and City may be a bit harsh on them. He's not sure how to deal with this
difference. Commissioner Larsen said they essentially sell the same products and the audience said it
doesn't want them even if they sell in a more palatable way. Items sold in the back of the store are the
same items that the audience objects to. Even if these are a small portion of the business, these are the
same items that the audience found objectionable. Lover's Package could be 30% in videos or books
and how is this different from an adult bookstore? Write ordinance of how much. Make the percentage
high enough that Lover's Package can exist and Lover's Package said they could continue to exist if at
30%.
Commissioner Peace thinks that the majority of the audience is against grandfathering. Commissioner
Larsen is unsure the audience understood the difference between amortization and grandfathering.
Commissioner Douglass said that during the recess he talked with people and they indicated they want
regulations as strict as possible. When they found out that Lover's Package would be included they
backed off and weren't so sure. Senior Planner Martin said of the four businesses, two are convenience
stores. City Attorney Heid explained again that the grandfather clause would allow current businesses to
continue, prohibit businesses from increasing their non conformity. There is some protection if the City
does this because there is no proliferation.
Commissioner Peace commented that to the audience maybe a store like Lover's Package isn't too
objectionable, but regulations say competing store would have to be in grey area noted on the map.
Commissioner Larsen said that folks haven't been in Lover's Package don't know what they sell.
Commissioner Douglass doesn't recall convenience stores being discussed at previous Planning
Commission meetings. Senior Planner Martin said that in doing site visits he found two convenience
stores with adult videos and magazines and other material which probably accounts for more than 10%.
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Chair Ekrem asked how a video store with an adult section would fit in and Senior Planner Martin said
the same way. Commissioner Peace offered that a couple of the video stores in town have adult
sections. Commissioner Chapman asked if City grandfathered Lover's Package and the store was sold
and merchandise changes, what happens? Senior Planner Martin said the City would have to look into
this if City decides to do grandfather. In order to grandfather, business has to operate consistent with
operations of the previous owner.
City Attorney Heid cautioned this is an issue that is consistently addressed by the courts. There is no
justification to take away property rights. The business couldn't grow, but City couldn't say they can't sell
particular items. For this alternative expression, the courts have addressed that you can't take away
property rights for this type of business. If the business stays in the same location, operates at the same
level of non conformity, it is hard to justify depriving them of operating business. In order to qualify for
grandfathering, business must have preceded ordinance; no new businesses during moratorium.
Senior Planner Martin commented that if there are additional adult businesses in the community and the
City doesn't know about them, then they are not legally established. He is confident about the number of
such businesses because Lover's Package and Video Blue 2 have business licenses. For the two
convenience stores, adult use materials appear not to be their principal use. If a grandfather clause
approach is selected, City will do thorough investigation.
Planning and Community Development Director Krauss advised that Planning Commission, City Council
and public know where the adult business are and have been talking about this concept for over a year.
City Attorney Heid said Planning Commission does not have to make decision tonight and can think
about it and come back in March and deliberate more and have an opportunity to visit the businesses.
Commissioner Peace and Commissioner Chapman want to think more about the issue.
Commissioner Douglass said that City has knowledge about two businesses and now talking about two
convenience stores. Is there any way to know of their percentage of adult materials now? If this is not
their major business, maybe they could cut back in this area. Senior Planner Martin spoke with one
convenience store owner and he believes the store would be under the 30%, but definitely more than
10%. The other convenience store owner never called back.
Planning and Community Development Director Krauss said regarding the square footage issue and
concern voiced previously, it is not easy and maybe impossible for definition of 29% or 30%. Mini marts
are not different if based on square footage for Lover's Package and City would have to make
determination of what is adult or porno or artful and he is reluctant for Planning staff to have to make
judgments.
Chair Ekrem confirmed that Planning Commission wants to defer action and continue deliberations at the
March meeting. Planning Commission consented.
ELECTION OF OFFICERS
Commissioner Douglass nominated Chair Ekrem for Chairman and Commissioner Peace for Vice Chair,
the current members who have served so well. Commissioner Douglass made a motion, seconded by
Commissioner Chapman, to re-elect the current officers. The motion passed.
ADJOURNMENT
With no further items to come before the Commission the meeting was adjourned at 9:50 p.m.
PC~GND\MIN 02-2004
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