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HomeMy WebLinkAbout05-06-2003MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 The regular meeting of the Planning Commission was held on May 6, 2003 at 7:00 p.m. in the Council Chambers of the Auburn City Hall. Those in attendance were as follows: MEMBERS: Ward Garna Jones, Dave Peace, Karen Ekrem, Ronald Douglass, Renee Larsen and Yvonne STAFF: Paul Krauss, David Osaki, Sean Martin, Shelley Coleman, Lanny Petitjean, Dan Heid, and Patti Zook ALSO PRESENT: Pete Lewis, Mayor The meeting was called to order by Chairman Karen Ekrem. She advised that there is a change in the agenda because Commissioner Ward needs to leave early. The discussion item, Text Amendments to Auburn City Code (ZOA03-0001 and ZOA03-0002), and the call for public hearing items, Text Amendments to Auburn City Code (ZOA03-0001 and ZOA03-0002) are moved to the beginning of the agenda. Commissioner Ward made a motion, seconded by Commissioner Douglass, to move the issue of text amendments to the front of the agenda. The motion passed. Commissioner Ward made a motion, seconded by Commissioner Douglass, to defer ZOA03-0001 and ZOA03-0002 to the June meeting. The motion passed. Commissioner Ward commented that the text amendments were dealt with last month, but there is unclear action on this. The minutes are not available. There is need to try to figure out procedurally how the process works and get clarification. Next month the proper action can be taken. Planning and Community Development Director Krauss remarked that Commissioner Ward raised questions today and in thinking about the process questions were raised. The Planning Commission was established as advisory to the City Council. There is concern that Planning Commission may be dictating what Council sees and this is not the intent of Planning Commission's advisory role. This requires further investigation and clarification. The only place where the presumed authority to call for public hearings rests is in the rules of procedure which are a bit cryptic. To call for a public hearing should be an administrative procedure. Chairman Ekrem was not at the last meeting where the amendments were discussed and it is clear that Commissioner Ward has issues about the amendments. She does not understand the issues referred to tonight. It is important to have clear understanding of the issues sooner than one day before the Planning Commission meeting. Planning and Community Development Director Krauss spoke about goals to deal with issues promptly and to get before the policy makers. There is an inherent process currently whereby Commission action takes at least two months and there is similar process for Council. Last November, Council had a retreat to establish a vision of what to achieve in 10 years. This vision is presented on the map and in the accompanied text. Council is moving toward its second retreat at the end of May. Planning Commission and Council will meet and talk about their collective vision. He distributed the goals/vision map and text to the Commission. Commissioner Ward left at 7:15 p.m. PUBLIC HEARING · Case Number CPA03-0001: City of Auburn Six Year Capital Facilities Plan (2003-2008) Consideration of a Six Year Capital Facilities Plan (CFP) covering the 2003-2008 time period. In general, the CFP includes an inventory of existing public facilities, identifies planned projects for various City public facilities and services, identifies project costs and anticipated sources of public and private funding that are reasonably capable of being available over the 2003-2008 time period. Among other items, the CFP is a planning tool used to secure grant funding, monitor levels of service, and serve as the basis for the establishment of certain impact fees. -1- MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 Chairman Ekrem opened the public hearing. Commissioner Peace arrived at 7:10 p.m. Community Development Administrator Osaki reminded Commission that this was discussed at the regular April meeting and again at the April work session. The CFP is a requirement of the Growth Management Act, is a planning tool and shows how to provide public facilities, and ensure that local government provides adequate public facilities. The CFP identifies funding sources and what the funds can be spent on. Finance Department worked with other departments in preparing the CFP. The City adopted new Comprehensive Water and Sewer Plans, and the new Transportation Plan is being developed. The policies in CFP have been reduced Commissioner Jones understands the process and used Parks Department as an example, and wondered if the Parks Board is privy to what the parks proposals are in the OEP because it will have impacts on them. Finance Director Coleman said that the Parks portion was brought forward from the Parks Director. She does not think it was reviewed by the Parks Board. As the City gets closer to implementing projects and solicits ideas as to how things should look, then the Parks Board will see. Commissioner Jones wondered if the level of service is lower, what kinds of impacts will that have. Community Development Administrator Osaki said that for parks, the level of service is based on acreage, number of regional and neighborhood parks are divided by the population. The level of service standard will probably decline if the population increases. Commissioner Peace wants to maintain the level of service instead of seeing a decline. Community Development Administrator Osaki said that jurisdictions identify level of service and try to achieve and sometimes this is based on national standards. Finance Director Coleman said that Planning and Community Development Committee will review the CFP not the Parks Board. Commissioner Douglass mentioned the study session held April 29 and the CFP was well covered by staff. There was no public testimony and the public hearing was closed. Commissioner Douglass made a motion, seconded by Commissioner Peace, to recommend approval of the CFP to City Council. The motion passed. DISCUSSION 1. Adult Use Planner Martin distributed a sample ordinance prepared by City Attorney Heid, an adult business study from Phoenix, and information from New Hanover County, North Carolina as referenced in the studies made available for Commission review. He pointed out special areas warranted for protection focusing on youth oriented activities, separation requirements and to be able to defend the separation requirement if it is 1,000 feet distance. Page 5 of the sample ordinance contains alternate language and he gave an example of how to approach defining these business categories. Staff's intention is to provide something to stimulate discussion. Planner Martin read item 6 on page 5 in the sample ordinance. Staff found one other jurisdiction that provided this type of protection. He spoke about differences in City of Lacey and City of Auburn codes. They provided alternate separations within the adult use category and gave examples. Their code is 350 feet separation for adult business (retail); all other uses (live, cinemas, etc.) the separation is 660 feet. Planning Commission had asked staff to provide additional language to protect businesses that cater to youth. City Attorney Heid mentioned that in the sample ordinance they looked at the character of the SuperMall and what it does that makes it an area where children would likely be. The Mall has a carousel and various events geared to children each month. There is rational basis for the City to include some of -2- MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 these protections. The question is what can be defended and the need to justify regulations that are adopted. The City needs to show regulations are legitimate and defensible. The City Attorney suggested Auburn's proposed language is more defensible when defining separation requirements. There must be good legitimate basis for the decisions made, show why you did what you did. Decisions must be made of what to protect, how to protect, and how to justify the protection. Other issues to be addressed include what kinds of businesses should be included in the ordinance. He spoke of the risks associated with making adult uses permitted under conditional use permit (CUP). That process would change the dynamics of what is available territory. If City has CUP requirements, there is not clear identification of what is available. He cautioned the Planning Commission about deciding on the CUP process and the possibility of liability associated with this decision. Planning and Community Development Director Krauss is skeptical of the CUP process for adult uses and agrees with City Attorney Heid's views. The CUP process would put policy makers in the position of having to approve affirmatively or to risk court rebuke for irrationally denying the adult use. The CUP is not a good option. The City would be better off defining areas where adult use could be located with minimal harm. Commissioner Peace suggested skipping the CUP process. City Attorney Heid mentioned that the sample ordinance does not have CUP. The ordinance is not in a form to be acted on. He agrees with Planning and Community Development Director Krauss's comments and strongly recommends not to employ the CUP process. CUPs can generally have an adverse impact on the community. He suggested the most defensible position would be not to have CUP process. Planner Martin and City Attorney Heid had many discussions and reached the conclusion to recommend against CUP process for adult uses would be best for Auburn. In response to Commissioner Jones's questions, City Attorney Heid said the moratorium was originally for one year, then extended and could be extended multiple times. The first six month extension is to September. There is considerable amount of materials to be disseminated and discussed and suggested the possibility that Planning Commission may be comfortable with the regulations in September. If Planning Commission is not comfortable, City is within justifiable timeframe for another moratorium extension. May cities have had multiple moratoriums and this is legal. In response to Commissioner Larsen's questions, City Attorney Heid believes that based on the amount of material the Planning Commission will review, the City will be safe from criticism that it did not spend enough time on the matter. The law in this area recognizes that you do not have to have had bad experiences to draw from, that cities can rely on the experience of other cities. Some cities have moved faster than other cities in adopting adult use regulations. Auburn will be able to show that a number of reports were reviewed, testimony heard, number of ordinances reviewed, case law was reviewed, etc. The materials reviewed will go into the legislative record. Auburn already has more material than some other cities. Commissioner Jones referred to liability section of the sample ordinance, and wondered about more regard to the fact that Auburn does not want such establishments. City Attorney Heid spoke about the dangers of being too blunt. The courts say that cities must afford this alternate form of expression. Instead we should say that Auburn does not want the negative secondary effects to impact the City. Have in place rules to protect the legitimate interests of the City. You cannot say you do not want adult businesses in town. In response to Commissioner Douglass's inquiries, City Attorney Heid said that having 1,000 feet between adult uses could withstand scrutiny. He used the example of Boston which chose to have adult uses in a concentrated area also called 'combat zone'. The courts uphold this decision because Boston was still giving the businesses an opportunity for this alternate form of expression. They crowded as many adult use businesses as they could in one area. Most jurisdictions do not do this. The negative secondary impacts are increased if adult businesses are in close proximity to each other. If the adult uses are dispersed, the impacts are less. -3- MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 Planning and Community Development Director Krauss said that Boston has gotten rid of the 'combat zone' because it was destroying downtown and has changed to a more common physical separation. As Planning Commission reviews regulations more closely regarding physical separation, some cities differentiate between uses. Another issue is amortization which deals with what to do with existing adult uses and how does the code deal with this. Auburn has two adult uses in town; one is clearly an adult use and one is potentially an adult use. One is in an industrial office building across from the Airport and Mezcal restaurant. The other is Lovers Package on Auburn Way North. People could make case they are different types of businesses and this should not influence decisions. Lovers Package is a franchise type business in Washington and throughout the State. They presume to be more innocuous in appealing to couples and by placing objectionable material in the rear of the store. If the Planning Commission wants to differentiate between the two businesses, this is up to the Planning Commission. Planner Martin commented that both businesses fall within 1,000 feet of residential zones. He explained how the distance is measured. Lovers Package is set up as Planning and Community Development Director Krauss described. They have lingerie fashions with the products clearly displayed as such. The store frontage has lingerie as one might expect to find in store window of Victoria's Secret or Fredericks. The video store rents and sells videos as well as some other materials for sale. Commissioner Peace knows of a couple of other businesses that have some videos for sale and applying the 20% rule of stock in trade. Planner Martin mentioned that Planning Commission talked about the 20% rule previously. Chairman Ekrem wonders if the two businesses mentioned fall under the grandfather clause. Planner Martin said that the adult use issue was first presented to Planning Commission last November, nine tasks were mentioned and the definition section reviewed. Three items are scheduled for discussion tonight: separation requirements, language of sample ordinance, permissiveness and whether or not to consider using the CUP process, and design criteria. Future meetings will discuss amortization. Question for Planning Commission is to decide if to allow for grandfathering or amortize them. If amortization, then what is period of time given to the businesses. City Attorney Heid recommends defining the amortization period and then require that business move to a location capable of meeting the regulations. City Attorney Heid said that grandfathering is not something for this case. If you grandfather businesses, then that undoes the argument that cities have a legitimate right to say where the businesses have impacts. He recommended a short period of time for amortization. Some cases have upheld 90 day amortization and suggested an opportunity to extend by a short time. Commissioner Larsen remembers that when portion of Lea Hill was annexed, farm animals were grandfathered. City Attorney Heid said the two are different because of what the courts have recognized - the negative adverse impacts from adult businesses. The businesses should not be grandfathered because what you are giving up in one case takes away from other cases. There is the problem with being inconsistent. Do not create liability, do not grandfather business when you are trying to do away with others. If you grandfather businesses, it takes away the City's argument that the adult businesses have impacts that warrant protection. There is the problem with saying business one can stay, but business two cannot move in. Commissioner Larsen wondered about making the separation distance smaller than 1,000. Planner Martin said the 1,000 feet separation is historically accepted as an appropriate distance if there is enough area left for adult businesses to locate. City Attorney Heid said that 10% of available land is adequate, some cities have 3% of territory available. Planner Martin said as Planning Commission may seek to adopt language in sample ordinance, the Mall falls under protected use as it is significant large business. The Mall meets separation requirement and current percentage of land with the Mall is 13.7%. -4- MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 Commissioner Peace wondered if Lovers Package is a business that residents need to be protected from. Planning Commission needs to decide what is acceptable. The way adult retail is defined, would this include store like Spencers? Planner Martin said in theory the definition could include Spencers. Commissioner Larsen expressed concern about materials located in the back of store and wonders if that is more than 20% of stock in trade. She does not think that Lovers Package is making money on the lingerie, but making money from adult items in the back of the store. City Attorney Heid said every community has different sensitivity and adult use may be more tolerated in another community. The question is what does Auburn want? The 20% came from other ordinances and is a common percentage. Commissioner Larsen said Planning Commission must decide if 20% is adequate or if percentage should be higher or lower. Planner Martin said 20% is used in this process, and is within definition of adult use of bookstore in Zoning Code. 20% is on the books now and Planning Commission seemed relatively comfortable with 20%, but wonders if Planning Commission may want to revisit. 20% is more restrictive than majority of other jurisdictions reviewed by staff. Commissioner Larsen pondered, 20% of sales, 20% of merchandise on shelf, 20% of what? A bookstore may have been legal, but with the new requirements it may not be. A business could have 10% of materials, but materials are 15% of business. Commissioner Peace likes the SuperMall included in the separation and wondered if this would stand review and City Attorney Heid said that the Mall has a number of events for kids which helps to justify its inclusion as protected area. Planner Martin believes that Planning Commission is fairly comfortable with language as proposed by City Attorney Heid. Staff suggests that Planning Commission eliminate the requirement for CUP and remove the process associated with getting approval. This does not relieve the obligation of separation requirements or design standards. Chairman Ekrem wondered about protection for kids congregating at fast food restaurants. Planner Martin advised that under City Attorney Heid's proposal typical fast food restaurants do not meet criteria for separation protection. City Attorney Heid offered that the City of Lacey is being more aggressive and said that wherever kids congregate would be protected. However, this erodes where space is available and where to allow adult business. The proposal talks about 'within any open park or similar space...' which can be defended. You can defend parks and where kids play, but not areas open to commercial businesses. For example, the McDonald's restaurant has very protective 'encapulazation' with no cross exposure. An area adjacent to a park is different. He spoke about problem with over expanded area of protection. You must have the ability to defend areas under protection. At prior Planning Commission meeting, the Commission wanted to protect fast food restaurants. The SuperMall can meet separation requirements. If you try to protect fast food restaurants this would be a target for challenge. Commissioner Jones is concerned about establishments located behind fast food restaurants and across from the casino. Planning and Community Development Director Krauss advised that mini casinos are licensed by the State. Cities have tried to treat mini casinos as adult uses, but there is not preponderance of evidence that accompany adult uses. No societal impacts are evident. Cities had to regulate casinos on amount of people, traffic, late hours, and limit location to high traffic areas and region serving areas. State thinks that zoning regulations on mini casinos is illegal and Legislature is trying to provide State authority to regulate mini casinos by zoning. Trying to have 1,000 feet of separation from casinos would clearly draw challenge. Chairman Ekrem wondered what happens if adult use goes in an area that seems appropriate and if another business goes in that infringements on the adult use business. City Attorney Heid said that cities have done different things here too. Any use that deserves protection deserves protection of what the business is. He said that amortization and opportunity for extension would be reasonable. -5- MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 In response to Commissioner Jones's questions, City Attorney Heid said that Federal Way enacted a moratorium to prevent a large adult use business from going into a vacant appliance store. The moratorium prevented the adult use business from going in. This action is not dissimilar to what Auburn did. The moratoriums were enacted to protect the cities. Planning and Community Development Director Krauss offered that Auburn had a controversial proposal near Lakeland Hills prior to establishment of the moratorium. A lease was signed and the City could not regulate. The proponent bowed to public pressure. City Council then imposed the moratorium in order to reassess City ordinances with the goal that this would not happen again. Planner Martin said that Auburn's current regulations only apply to live adult business. Planner Martin said that discussion will continue each month. Planning Commission reached consensus to eliminate reference to conditional use permit. Needs Planning Commission recommendation to amend the ordinance that adult use is permitted anywhere the business meets separation requirements if it is outright permitted in zone. City Attorney Heid suggested Planning Commission look at map distributed at prior meeting to make determination that the buffer zone provided is sufficient. Everything Planning Commission does will either expand or shrink the available area. Planner Martin spoke of need to make sure City has enough available territory for adult business to avoid challenge. There are legitimate devices that the City can use. Adult use businesses are permitted in three zoning districts. It appears Planning Commission wants Code change and remove reference to CUP process. Adult uses cannot locate in any residentially zoned district. Planning and Community Development Director Krauss and staff recommend that that Code be amended that adult uses be permitted outright where it meets separation requirements as defined in the adult use section. Planning Commission will hold public hearing on amendments. Commissioner Douglass made a motion, seconded by Commissioner Larsen, to recommend language as presented by City Attorney Heid. City Attorney Heid recommendation should reflect that the motion is merely to include in draft language. Planner Martin will prepare ordinance consistent with Planning Commission direction. Commissioner Douglass spoke of the importance of a paper trail. Commissioner Jones is concerned that if motion is made, Planning Commission will have trouble changing their minds and wants the option to change her mind. Planner Martin said that Planning Commission is not acting on the proposed language. The sample ordinance can be revised prior to next Planning Commission meeting. City Attorney Heid said Planning Commission should have consensus for direction versus vote. Planner Martin suggested discussing the additional design standards at the June meting. Chairman Ekrem suggested talking about design standards at the June meeting because it is now 8:50 p.m. She confirmed there will not be a public hearing in June. OTHER BUSINESS: 1. Joint Work Session with City Council Chairman Ekrem reviewed the memorandum and is available May 12, May 19 and May 27. Planning and Community Development Director Krauss said that the joint meeting is something that Council has wanted for some time. He distributed the goals/vision map and text to the Commission. The documents serve as the basis for the pre-budget retreat. -6- MINUTES OF THE PLANNING COMMISSION MEETING MAY 6, 2003 Mayor commented that he is pushing for a joint meeting between the Planning Commission and City Council. Some cities have regular meetings between the two groups. The plan before Commission is vision of Council and where they plan to go in 15-20 years. The budget process will begin in May instead of August. Directors were challenged to go to vision, look at projects, decide what the first year cost is, what the process is going to be, then put in budget plan for May for 2004. Projects in the map and narrative will be discussed by Directors and Council at the retreat to be held the end of May. Council is looking to see if other projects should be added and how to proceed. The goals/vision are in effect as far as the Council is concerned. They have received comments from the public. He wants Planning Commission and Council united with the vision and moving forward. 2. Time Change for Meetings Commissioner Jones commented that since a recent meeting went to 9:30 pm, would the Commission consider changing the start time to 6:30. Planning and Community Development Director Krauss cautioned that for public hearings the meeting needs to begin at 7:00 pm so that the public has time to attend. Any discussion or information could begin at 6:30 pm with the public hearing at 7:00 pm. Commission consented for the meetings to begin at 6:30 pm, with discussion or information items before the public hearing. The new time change will begin with the June meeting. ADJOURNMENT With no further items to come before the Commission the meeting was adjourned at 9:00 p.m. PC~,GND\MIN 05-2003 -7-