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HomeMy WebLinkAbout10182000 CITY OF PORT TOWNSEND MINUTES OF THE SPECIAL MEETING OF OCTOBER 18, 2000 The City Council of the City of Port Townsend met in special session this eighteenth day of October, 2000, at 6:30 p.m. in the Port Townsend Council Chambers of City Hall, Mayor Geoff Masci presiding. ROLL CALL AND PLEDGE OF ALLEGIANCE Council members present at roll call were Joe Finnie, Alan Frank, Vem Garrison, Geoff Masci, and Bill Wolcott. Syd Lipton and A1 Youse were excused. Staff members present were City Attorney John Watts, Building & Community Development Director Jeff Randall, Planner John McDonagh, and City Clerk Pam Kolacy. PUBLIC HEARING PORT TOWNSEND ASSISTED LIVING, LLC RESOLUTION 00-057 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND DENYING A SEPA APPEAL AND APPROVING A CONDITIONAL USE PERMIT, APPLICATION LUP 00-039 The first issue for consideration by the council was the Planning Commission's recommended denial of SEPA Appeal LUP 00-039 filed by Colette M. Kostelec. Appeal from the Planning Commission Recommendation Mr. Masci began the public heating and reviewed the order of speakers and time limits. He then called for any council members who may have demonstrated bias or prejudice against any party to the proceedings, or would derive any monetary gain or loss from the outcome of the proceedings, or would wish to disclose an ex parte contact prior to the hearing. Mr. Macsi noted that he has spoken with Mr. Watts about procedural matters affecting the hearing, but not about the substance of the appeal. He has also spoken to all council members except Mr. Finnie about the hearing procedure and has distributed an outline of the procedure to them. Mr. Watts stated that he had received a request from Mr. Garrison asking that staff prepare copies of certain portions of the Port Townsend Municipal Code and that he had City Council Hearing Page 1 P. T. Assisted Living October 18, 2000 distributed those copies to Mr. Garrison on Tuesday. He disclosed another staff contact which was simply a request for information. Mr. Wolcott disclosed an ex parte conversation with Ande Grahn, who represents Madrona Planning on behalf of the applicant, Port Townsend Assisted Living, LLC, in a restaurant about two weeks ago. He stated that the substance of the conversation was the Planning Commission hearing and that his comments were confined to how well the Planning Commission Chairperson had conducted the meeting and how well attended the meeting was. Mr. Garrison stated that he owns property near the subject property but that he does not stand to profit or lose from any decision made at this hearing. At Mr. Watts's request, he identified the property as one acre at San Juan and "F" Streets. Mr. Finnie stated he had a conversation with the City Attorney and the Building and Community Development (BCD) Director that afternoon asking for clarification of the language in a City Attorney memo dated October 12 which is contained in the council packet. He also questioned the legal tests regarding the definition of "dwelling unit." Mr. Watts added that the conversation lasted only a few minutes and that everything discussed is contained in the written record before the council. Mr. Masci then asked whether anyone wished to request that any council member recuse himself from the proceedings. Kathryn Jenks, citizen: challenged Mr. Garrison's participation due to appearance of fairness. She noted the City Attorney had already repudiated the challenge originally posed in her e-mail. She claimed a direct connection exists because Mr. Garrison owns property within 200 feet of the project and that this causes him to possibly gain or lose financially by the type of development on the property. She added she had no specific speculation on how he might gain or lose. She also referred to case law cited in Mr. Watts's memo to the council regarding the appearance of fairness doctrine. Mr. Watts stated that the case in point involved a rezone in which a Planning Commissioner had a property interest. He noted that the current issue before the council is not for a rezone but for an allowed use; he stated he does not believe it has been shown that there would be any benefit or loss to Mr. Garrison. David Bricklin, attorney representing appellants: argued that if property is developed in this manner within 200 feet of another property, it clearly creates a market demand for additional services by creating more intense use in close proximity and that the chance of spin off from that does constitute a financial interest for nearby property owners. Mr. Watts noted his view was to the contrary, and that the property does not abut the subject property. Mr. Watts then asked Mr. Garrison directly whether the fact that he owns property near the project would influence his vote. City Council Hearing Page 2 P.T. Assisted Living October 18, 2000 Mr. Garrison replied that it would not. Mr. Masci asked if anyone else wished to challenge participation by a council member. Ted Shoulberg, citizen: supported the challenge to Mr. Garrison, rejecting the contention that his property would not be impacted financially. He also challenged Mr. Wolcott's participation based on the fact that he is a builder and developer of projects within the city, and also based on the previously disclosed ex parte communication. Mr. Masci then stated that he felt no substantial evidence had been presented which would preclude the seating of Mr. Garrison or Mr. Wolcott. Mr. Masci then noted that a request to postpone the hearing date had been included in the appeal by the Olympic Environmental Council. Mr. Watts stated he had spoken with Ms. Kostelec on the previous day and asked whether or not she would assert or question the hearing being held this evening. He asked her directly if she still wished to defer action on the matter to a later hearing date. Mr. Bricklin replied, stating that the basis of the request for postponement was the fact that the council members may not have had adequate time to prepare for the hearing. He noted there were some materials distributed after preparation of the large notebook comprising the written record, including an October 17 memo from Attorney Olbrechts for the applicant. Mr. Masci then inquired whether any council member believed he had not had enough time to review the record in sufficient depth to make a decision tonight. Mr. Watts stated that if any member wanted more time to review the record, the hearing could be postponed to a future date, or the presentations could go forward but action could be deferred. He added that two council members are not present and this would enable them to participate in the decision. Motion: Mr. Frank then moved to go forward with the presentation. Mr. Garrison seconded. The motion carried 5-0 by voice vote. Staff Presentation John McDonagh, Staff Planner, then provided the staff presentation. He noted that the Planning Commission minutes included in the packet were the draft minutes, but that the minutes had been approved by the Planning Commission, with the exception of a few typographical errors, at its last meeting. He distributed copies of the signed and approved minutes. Mr. Watts recommended acceptance of the approved minutes in lieu of the minutes in the notebook as part of the official record. There was no objection. Mr. McDonagh stated that the September 28 Planning Commission hearing had lasted five hours, with considerable testimony, and that the Planning Commission voted to deny the SEPA appeal and to recommend approval of the Conditional Use Permit (CUP). He City Council Hearing Page 3 P.T. Assisted Living October 18, 2000 referred to the Planning Commission's Findings and Conclusions included in the council packet. He noted in particular the finding that the individual rooms within the structure were not determined to comprise individual dwelling units and that this determination coupled with the definition of "congregate care facility" result in the decision that all proposed units may exist in a single structure. He noted two key highlights in the Findings and Conclusions as first, the permanent preservation of half of the site as open space; and second, the city's ability to apply multi- family design review standards to the proposed structure. Corrections to the design have been made by the applicants and final review will assure that lighting, landscaping, and other aspects of the building will not adversely impact the neighborhood. He also stated that meetings have been held with members of the neighboring community and listed several design changes that have taken place in regard to the structure and site design to further compatibility with the location. In answer to the most recent appeal issue, which challenges the accuracy of stormwater provisions, he provided the introduction and text of the applicant's submitted stormwater plan to Mr. Watts. Mr. Watts referenced the document as an attachment to the city's SEPA determination and noted that it was provided to the Planning Commission as a reference and that the City Engineer had reviewed the preliminary drainage plan and considered it adequate. Mr. Masci asked to review the document. It was noted that the preliminary drainage report text previously recognized the plan and that this represents inclusion of the actual text rather than the referral to the text in the record. Mr. Finnie noted that his copy was not complete. Partial sections were inadvertently omitted according to Mr. McDonagh. Another issue raised during testimony at the Planning Commission hearing was the impact of the project to the city's emergency services. Mr. McDonagh noted that the project application and SEPA checklist were circulated to the Fire Department and no comments were forthcoming regarding adverse impacts. Jeff Randall, BCD Director, then spoke in response to issues raised in the appeal. Mr. Randall stated that staff had concluded that the rooms within the structure do not qualify as individual dwelling units based on the definitions contained in the city's zoning code, which defines them as complete housekeeping facilities for one family. Other factors included in the decision were that: · :. residents would be dependent upon shared cooking and dining facilities · lo residents would be dependent upon other services such as laundry and social services · :. some units would include a sink, microwave, etc. to allow for storage of small amounts of food but would not provide necessary amenities for primary cooking · l. individual residents would not have full control over the units since they could not have overnight guests City Council Hearing Page 4 P.T. Assisted Living October 18, 2000 · :o Port Townsend Municipal Code (PTMC) states that congregate care facilities may provide kitchen and dining spaces in individual units · :. the limitation to four rooms per unit would be applicable if residents were capable of living independent lifestyles but the proposed units are dependent upon shared facilities · :. a structure used as a dwelling unit should have minimum amenities based on the Uniform Building Code definition of an efficiency dwelling unite · :. in regard to the contention that it is not appropriate to use definitions not found in the zoning code, he stated that the city must still apply UBC standards to the project for a different purpose · :. noted that the term "dwelling units" had been mistakenly used in a memo in support of the expansion of Victoria House which was authored by Mr. Randall. He stated that staff had been using the term for density calculations but the units did not have full housekeeping. He also noted that the proposal was reviewed under prior zoning codes and under a Planned Unit Development application. · :. applying the housing unit density in this case preserves six acres of open space in perpetuity · :o the claim that a door would be opened to incompatible structures is unfounded as fourplexes are allowed in R-II zones if the lot size permits; accessory structures may also occur if minimum setbacks and lot size can be met · :o stated that the project as permitted could not result in an inadequate number of parking spaces · ~. refuetd claim that the developer should have found property in another zone or have applied for a rezone because congregate care is listed as an appropriate use in the R-III zone. A rezone or Comprehensive Plan amendment is not necessary. · 7. BCD has applied all provisions of the code to the project as consistent with the Comprehensive Plan and the Planning Commission review bears this out. Attomey David Bricklin then raised a point of order, stating that normal appellant procedure is that the appellant has the burden of proof and thus should speak first and last. He objected to the order of presentation provided for within the Council Rules and characterized the staff's presentation as adversarial. He requested that the procedure be reformatted. Mr. Olbrechts, attorney for the proponent, noted that the hearing was not only in regard to the SEPA appeal, but also to the Conditional Use Permit application on which the proponents have the burden of proof. He stated that he believes the procedure outlined provides all parties with balanced rights. Mr. Masci stated that the Council Rules of Procedure will be followed. Proponent Presentation Ande Grahn, representing Madrona Planning and Development, introduced William Fronk from the development group and Dave Ruggles, the project architect, who were present to respond to questions at any time. She also stated Attorney Phil Olbrechts would be speaking to issues relating to the appeal and CUP process. City Council Hearing Page 5 P.T. Assisted Living October 18, 2000 Ms. Grahn stated that her firm has been working with the applicant since MarCh and that several meetings have been held with city planners and with neighbors of the development. In addition, the firm is working with Jefferson Land Trust and Master Gardeners concerning open space and landscaping issues. She noted two concerns about the Planning Commission's proposed mitigations; first in Recommendation "D", fifth line, "trail shall have a paved standard..." she suggested that a paved trail would encourage noisy and incompatible use and asked that the requirement for paving be removed so that the applicant could work out alternative surfacing using the street standards procedure. Second, she requested a modification to Condition "E" of the Conditional Use Recommendation (beginning page 11 - to top of page 12) to read "to be preserved as either undisturbed open space or for agricultural or community gardening uses .... " Attomey Phil Olbrechts spoke on the merits of the project, stating that the dwelling unit definition conversation is a small part of the overall discussion regarding the project. He stated other important questions should be asked, in regard to whether or not the project is good for the community and whether or not the use is anticipated in the municipal code. He stated that no one disputes the fact that congregate care facilities are allowed in the zone and noted that a congregate care facility cannot operate with four residents or less. He said that assisted living projects necessarily involve staff, cooks, etc. He also stated that such a facility is very much needed in the community as shown by a market study which indicated a need for 289 such units in the city; only 39 are currently available. The issue of the building design must be addressed in terms of its compatibility with the neighborhood. He stated that open space is key and that is what makes a building of this size compatible in this neighborhood. If the 12 acres were divided, seventy-four homes could be built in the area. He referred to the plans for mature landscaping, trails, modulated walls and a meandering driveway, stating that the applicants have gone out of their way to find out what the community wanted and to present a project well-designed and compatible. He added that other projects in proximity include a golf course and San Juan Commons. He stated also that the questions have been raised and answered concerning adequate public facilities. In particular, the impact on hospital services should be negligible because the people who will live in the units are primarily already a part of the community. A relationship would be developed with the hospital to make services more efficient overall. In regard to the number of residents impacting the neighborhood, he noted that the applicants have already built 450 units with only one occupant who drives a car, so traffic impact would be almost non-existent. He stated that the project meets all the standards of the municipal code and that only environmental impacts should affect a SEPA determination. City Council Hearing P.T. Assisted Living Page 6 October 18, 2000 He said that the dwelling unit definition and other aspects of the code must be applied in a functional manner. He stated the rooms do not have housekeeping facilities and the microwave ovens added for convenience could be removed if there were an effect on density allowance. He wondered why there would suddenly be a limit for dwelling units in one building, noted that a congregate care facility is entirely different from a dwelling unit which would be considered according to family living facilities. It doesn't make sense that you can have one family with several sets of amenities but congregate care units are kept to the same standard. He added that parking requirements have been misconstrued by the appellant and that staff is applying density requirements appropriately to assisted care facilities. He added that in regard to the open space, the results of a binding site plan or initiation of a separate covenant would have the same result, with the amount of open space related to the size of the building. Mr. Masci then asked for presentation from the appellant. Appellant Presentation Colette Kostelec outlined the points of the SEPA appeal. She noted that a "dwelling unit" is a unit in which one can cook, clean, eat and sleep, regardless of what particular appliances are installed. She stated that when questions arose regarding definitions, staff should have gone to other codes, plans, and previous projects using the same terms (example: "housekeeping facilities") She stated that the Uniform Building Code recognizes an efficiency unit as one with sink, cooking facility and refrigerator and that these units would meet that definition. She referred to Victoria House, a project which was approved with the units referenced as "dwelling units" and that exactly the same conditions were present. Although Mr. Randall has argued that it was a mistake, that raises the question of whether this project will be considered a "mistake" when another project is approved. She said that consistency is needed among the various codes and taking responsibility for a "mistake" is not good enough. She stated that the distinction between permanent and transient accommodations is not so much whether people live them as much as how they live there and that people are clearly intended to live in the congregate care units of the applicant's building. Ms. Kostelec stated that the Planning Commission understood the intent of limited units per structure by saying that the criteria was intended to avoid large bulky buildings in the R-II zone and that the result of the approval of this project would be a large bulky building. The municipal code clearly states that the object is to protect neighborhoods from incompatible uses; a 53,000 square foot building is clearly an incompatible use. She said she feels there is inconsistency in using housing units for calculating density, but not for purposes of bulk and dimensional requirements. She stated it is not rational to call something a housing unit but not a dwelling unit. If you agree with staff that housing City Council Hearing Page 7 P. T. Assisted Living October 18, 2000 unit density applies to the project, most of the open space must be kept in the same ownership as the rest of the facility. She addressed the difference between a nursing home and a congregate care unit; in a nursing home, emphasis is on the inability of residents to bathe, cook, etc. It blurs the distinction between nursing homes and assisted living facilities when we do not recognize that there is some independent lifestyle involved for assisted living residents. The units are similar to private apartment units and if not meant for independent living, then the project should be categorized as a nursing home. Implications for the rest of the community would mean that units could be approved throughout the R-I and R-II zones as housing units when they are not dwelling units. This may have implications for other uses, ie single family homes, accessory dwelling units and apartments. The issue of whether or not the extra unit was defined as "dwelling unit" would affect the ability to increase the density in the residential zone by private owners and developers as well as congregate care facilities.. She stated that she does not believe the proposed development can meet the criteria: 1) it does not comply with the density requirement; 2) is not harmonious with the character of the immediate vicinity; and 3) public interest will suffer without cumulative impacts being addressed. She said options available to the applicant are to find a site zoned appropriately, apply for a rezone, change the code, or redesign the project. She listed the errors made to include: 1) dwelling units assigned by an arbitrary criteria that is not found in any code or plan; 2) a narrow definition has significant implications in zones which is not addressed in the SEPA; 3) there is blatant inconsistency by not considering a housing unit the same as a dwelling unit; 4) staff should have directed the developer to other options early in the process; and 5) Planning Commission did not adequately address the issues raised. She said the desired outcome of the appeal is the withdrawal or denial of the SEPA Determination of Non-significance and denial of the Conditional Use Permit. Presentation by Others Mr. Bricklin objected that the staff and applicants in combination were allowed more time than the appellant. He added his contention that the procedure of evaluation first by the Planning Commission and then by the City Council is illegal. He then addressed issues surrounding the definition of dwelling units. He stated that only four per building are allowed under the existing code and that the four units must have complete housekeeping units. This excludes motels, rooming houses and other transient uses. It also clear that a full blown nursing home would be prohibited in the zone. He added that the applicant is caught between a rock and a hard place in defending the code City Council Hearing Page 8 P. T. Assisted Living October 18, 2000 provision as they can't take away so many facilities that the project becomes a nursing home. He argued that if the proposed definition is accepted, then every time grandma puts a microwave in the bedroom, the bedroom would be converted to a dwelling unit. Other aspects of a dwelling unit include a kitchen sink, refrigerator, and living area - all combined make it a housekeeping unit and if they were taken away you would be left with a nursing home occupied by acutely ill residents who cannot live independently. He stated that the code does say that buildings in this zone are limited to four dwelling units without enumerating every type of use. It says that all uses are limited to four dwelling units; if the applicant wants to enjoy an exemption from that requirements, then they need to find some place in the code which exempts congregate care from the maximum four dwelling unit rule. He stated that the implications of the definitional construct are that the dwelling units are desired for purposes of bulk and scale but not for density - therefore developing a distinction between dwelling unit and housing unit. Density is the key word to apply to any number of units on this or any other property in this zone. The project is not a permitted use in the zone. As a conditional use, the council may deny the application if conditions have not been imposed that make this harmonious and appropriate for the neighborhood, taking into consideration design, character and appearance compatible with a single family zone. He disPlayed the architectural drawing and stated it is a relatively large building and that there are ways to design so bulk and design are compatible, for example with detached buildings connected by breezeways. He warned the council not to be mislead that the bulk and scale will disappear because there are six acres of open space on one side. He again stated that the code focuses on design, character and appearance, not noise and traffic. If a single family home development were done, staff says the traffic and noise would be greater (p677) He stated that since congregate care is a conditional use, it must have been contemplated but nothing dictates this type of design or appearance. He is not objecting to the number of units, but to the way the building has been designed, all out of proportion to the residential uses surrounding it. Again he noted that this is not a nursing home for people who need total care; in fact if it were a nursing home it would be prohibited outright. Why, then, does it have to look like a nursing home? Again, he raised the alternative of design which would incorporate separate but connected buildings. At the conclusion of the presentation, Mr. Masci declared a ten minute break would be taken from the proceedings. The meeting was halted at 8:30 p.m. RECONVENE The meeting reconvened at 8:45 p.m. City Council Hearing Page 9 P.T. Assisted Living October 18, 2000 Mr. Masci then called for testimony from the public. Public Testimony Alice King: stated that the rooms in the building range from 320 square feet to 496 square feet, have cooking appliances, refrigerators and sinks and meet the definition of efficiency dwelling units in the Uniform Building Code. She said the distinction between a unit without an oven and range is frightening because it means they are not subject to limitations placed on accessory dwelling units or subject to the density limits. They are either ducks or not ducks; if ducks, then density applies and so do bulk and dimensional standards. If not, then density doesn't apply and you have opened up my neighborhood and everyone else's neighborhood to things that are not residential units. If grandmother puts a sink and small refrigerator in her bedroom, she has created an ADU and it should be treated that way or we have thrown zoning out the window. Looking toward the Comprehensive Plan for clarification is totally appropriate. Nancy Dorgan: asked the council to reject theproject. She stated that the Comp Plan Land Use Element provides many acres for R-II property and much of that property is still undeveloped. She stated her nervousness and concern about the precedent of allowing large structures on land meant for single family homes no matter how worthy their purpose. She noted that assisted living facilities are permitted outright in some zones but that land is not so readily available. The developer for this project prefers to invade the "F" and San Juan neighborhood for a more attractive and marketable project. She asked that the precedent not be set which might create a trend toward inappropriately scaled development. She asked the council to prove they are not indiscriminately pro growth. She stated there is a proliferation of electrical appliances which enable a room to be used as a dwelling unit and the idea that a unit must have a standard cooking range in order to set up housekeeping is ridiculous. Dwelling unit is a flexible term and these units may justifiably be considered as dwelling units. The CUP should not be granted and the project could be scaled back in design to a series of fourplex structures. She urged the council to reject the proposal and invite the applicant to rework the proposal and submit a project more in character with the R-II neighborhood. Catherine Robinson: expressed concem about the project as a neighbor and also as a Port Townsend resident. She stated that the project's scale and appearance do not blend in with existing homes in a harmonious way; San Juan Commons has already been built and looks like an institution. Also San Juan Courte - these projects are in R-III zones even though they are within the neighborhood. Technically they cannot be used to compare to this project because of the zoning difference. She objected to having another such building in the same area and neighborhood which does not need another huge building with a large amount of square footage - she stated a building on the scale of Victoria House would be more appropriate. She went on to say she is not opposed to the projectper se and said that her father lived in a similar facility and was able to stay in his neighborhood. She is not opposed to assisted living or retirement facilities in a residential area, in fact they belong there. However, they must comply with the zoning standards. She asked the council to support the appeal and deny the conditional use permit. City Council Hearing P. T. Assisted Living Page 10 October 18, 2000 Pete von Christierson: said the social service impact must be analyzed as well as the environmental impact and that was not done. He said he does not believe the fees and taxes paid by the project proponents will cover the cost of extra emergency services. The county already has a problem with the 911 dispatch system and this project will not pay its way. He stated calculations using Victoria House as a model come up with figures of $1,400 in taxes to service 61 calls and this amounts to $23 per call. The figures were calculated out for the Planning Commission and the amount of money is not sufficient to answer the telephone much less to put an ambulance on the road. He stated that the code allows only four dwelling units in one building and there are too many in the proposed building. He believes the council is in a bind because staff made an error and should have come to Planning Commission and Council to ask for definitions. He stated that they have heard testimony that this will create continual problems until the code is revised and that the project should not be approved until there is a code revision. Ted Shoulberg: stated he wears two hats, as a developer and as a former council member with a masters degree in planning. He successfully obtained a rezone for a successful self-help project. He said he knows the code and thinks there is really no choice. We must shape our community for those who live here, not for those who wish to develop here. Policies developed in the Comprehensive Plan and other city plans should not be distorted by definitional games. He said that these are your people and they are asking for your help; that they need the right, might and power of the city government to protect their neighborhood. Nora Regan: wanted to clarify a point about assisted living complexes. She noted that residents are there because they can't manage their own homes, not because they can't cook. She stated that many residents cook meals in their rooms and don't want to go to the communal dining room. She stated she lives close to Tremont and has watched the pasture engulfed by enormous structures and institutions. She hates the Alzheimer's trait and stated they have not had enough residents to open. If the assisted living facility isn't full enough to open there will be another big empty box. She warned the council of setting this precedent. Kathryn Jenks: reiterated her testimony before the Planning Commission. She asked that stormwater considerations be addressed in terms of stormwater entering the site rather than stormwater runoff from the site. She questioned how stormwater would be precluded from entering the site which is in a topographical depression. She then stated that the rendering of the building does not show a compatible structure. At 53,000 square feet, the building is larger than Safeway. She characterized the depiction as misleading, showing it as a Bavarian setting. She also expressed concerns about the impact on the local hospital, particularly the emergency room. She noted that it would behoove the council to address the impact to hospitals in the SEPA checklist. City Council Hearing P. T. Assisted Living Page 11 October 18, 2000 Paula Mackrow: speaking as a resident of the neighborhood, stated that those in the community who will live closest to the proposal feel it is not harmonious in design and appearance. She raised questions as to the adequacy of the public facility at this increased density. She disputed the statement that the project is compatible with the goals and policies of the Comprehensive Plan, and stated it does not appear to be in compliance with other elements of the municipal code. She also referred to the UBC and said that since it was adopted by the city it was therefore part of the municipal code. She then referred to the staff's seeming inability to just say no. She said that the public will suffer detrimental effects from the cumulative impacts of the proposal, which are clearly demonstrated by testimony at this meeting and at the Planning Commission. She said the community feeling is in conflict with the Planning staff's determination. She said that no one is here to support the project except the proponents, local need or demand is not shown in the record. Ian Keith: noted a correction on page 26 of the Planning Commission minutes: the word "auspicious" was used instead of "specious." He stated that the zoning code use table specifies a maximum of four units but when a proponent threatens that they can't do business under those conditions then they either need to go somewhere else or apply to change the zoning. If there is an ambiguity in a code definition, that is the point at which you look to other definitions. If the definition obviously not clear it is then appropriate to look at other definitions of what a dwelling unit is. He noted that the emphasis at this hearing has been the appeal but reminded the council of the underlying permit application. He stated that the council's approval of the permit is discretionary and that they could deny the SEPA appeal but still decide that the project is not consistent with the city's code. There was no further public comment. Mr. Masci asked for the project applicant's response to testimony. Response by Proponent Mr. Olbrechts: noted that the project would provide homes for people 85 and older, which is entirely different from a tourist court, hotel or other transient use. He stated that this is the reason the rooms cannot be defined as dwelling units. He noted that group homes are allowed by the municipal code and that the four-unit density applies to these homes as well. This however would be contrary to state law because there can be no discrimination against people living in a family-like setting and the state allows six units for this type of use. He rejected any argument which would characterize the project as a nursing home. Residents are not confined to bed. In answer to the suggestion that the project be broken up into a "pentagon-like" structure he noted again that the residents are 85 years old and do have more trouble getting around than younger people. He noted that that configuration would also result in a much greater impervious surface and less open space. He stated that two acres of the property are located in front of the building, not all is on one side. The home is very separated from the uses around it. He stated it is called assisted living because the residents cannot live by themselves. Requirements for housekeeping amenities are based on research. If the residents could live on their own, City Council Hearing P.T. Assisted Living Page 12 October 18, 2000 the impact would be greater, but most residents will spend the majority of their time inside the facility. He stated that significant modulation is achieved through the design. Those speaking against the project have really argued only against the appearance of the facility; a decision must be based on design guidelines. A conditional use permit allows the limitation of size. There must be some objective standard: since 75 single family homes could be built on the property, one home should be able to be built that contains 75 people. He referred to Exhibit "O" showing community support from a local medical clinic. He then stated that the council should ask themselves if there were no microwaves, would the rooms constitute complete housekeeping facilities. He stated absurd results must not be allowed in interpretation. He again stated that the facility would have zero impact on surrounding uses. Response by Appellant David Bricklin: requested to respond to Mr. Olbrechts's comments and then respond to the city's comments. He said the fact that the code excludes transient uses is precisely his point. If the dwelling unit definition excludes the use for transient accommodations, motels, etc., then these facilities are more like dwelling units than the transient uses which are excluded. Although the applicants state the project is not a nursing home, they also say they must have everyone in the same building. The Pieces don't fit together if the clients are too infirm to walk through connecting breezeways. He agrees that absurd results should not be accepted. He stated he would save the rest of his time to rebut the city's argument. Mr. Olbrechts objected. Mr. Masci noted the objection but said that he would allow Mr. Bricklin to use his remaining time later. Response by Staff Mr. Randall stated that a proposed use or structure must comply with the zoning code and the Uniform Building Code. He elaborated on the dwelling unit definition and stated that in this case the separate rooms should not be considered dwelling units; for example a home office with accessory structure couldn't have dwelling unit features and could not be rented out as an apartment. The proponent must tell staff the use of a proposed structure; a 15-20 unit building may not meet dwelling unit standards, and therefore could not be classified as apartments. Staff was required to receive the application and process it when it was complete; there would not have been time to stop and require a code amendment. The new argument that would propose this is a nursing home and therefore not allowed, is a result of whittling away at the congregate care facility definition. Since congregate care is allowed, this facility is allowed conditionally. City Council Hearing P. T. Assisted Living Page 13 October 18, 2000 He stated that the compatibility comments are good ones. Staff thinks the building could meet multi-family design standards with the building site and mitigations. These are things that need to be decided through the Conditional Use Permit process. He noted that the building is the approximate same square footage as the Safeway Store, but that because it is a two-story building, the footprint is half the size. He also noted that a new valueless parcel is not being created, but development rights are being tied to the property. The land can still be sold with the proper covenants but a buyer would be aware that certain development rights are gone. He said the council has the ability to say as a condition of the permit that the project needs to comply with the base density standards of the R-II zone; the rooms do not have to be called dwelling units, but a determination can be made that the project complies with the zoning. Response by Applicant Mr. Olbrechts introduced Bill Fronk of the development company. He asked the council to take a common sense.approach and consider what is best for older residents. If the project is spread out into fourplex units, certain fire and life safety issues for residents will be triggered as well as health issues. If the facility is broken up, it would create a situation where senior care becomes unaffordable and the setup would also hamper health care as there would be less interaction among residents; care is fostered through group interaction and if residents are separated and isolated, we would be hampering rather than improving care. Response by Appellant David Bricklin: If necessary, the project could be contained in one building, but it must be put in a zone where more than four units in one building are allowed. In regard to the density issue, he said that staff is saying that these are not dwelling uses for purposes of bulk and dimension but they are housing units for purposes of calculating allowed density. He referred to the zoning code which provides a maximum number of housing density units for a residential zone; 8 DU per 40,000 square feet where "D" does not stand for housing, it stands for dwelling. Regarding permitted use: in table 17.39, the use is not listed as permitted, even if it doesn't meet the technical definition, it is being rented out for dwelling purposes. Perhaps it should be allowed in some manner or form and that is your decision: what is the manner? what is the form? We believe it should not be permitted unless it is made to look like a residence or put in a zone where large blocky buildings are allowed. City Council Hearing P. T. Assisted Living Page 14 October 18, 2000 Response by Staff Mr. Randall asked to clarify the density matter. He said he would concur that rooms should not be classified as dwelling units for one purpose and not another. Mr. Masci then closed the testimony portion of the hearing at 9:40 p.m. He asked the council whether they would prefer to move forward or postpone deliberation and action. Mr. Finnie suggested that the issue be dealt with tonight. There were no objections. COUNCIL DELIBERATION AND ACTION Motion: Mr. Wolcott moved to approve the SEPA appeal. Mr. Garrison seconded Council Discussion Mr. Garrison stated he found Mr. Keith's testimony interesting and important particularly framed with his letter in the record memorializing his idea of the intent which is central to the issue, that is compatibility with the Comprehensive Plan. As a former council person, Mr. Keith was involved in the creation and adoption of the Comprehensive Plan. Mr. Garrison noted that if there is any doubt about an interpretation of the code, the legislative intent should be the determining factor. Mr. Garrison noted that the definition of "dwelling unit" is central to the application and he shared several definitions he had researched. He stated that he can only believe a dwelling unit is a dwelling unit is a dwelling unit. He noted that the packet contains a part of the zoning code in which a table states that the maximum number of dwelling units allowed in any one structure in the zone is four. He believes the mistaken driver to this issue is the idea that a dwelling unit is not a dwelling unit unless it contains a full housekeeping unit. The code refers to dwelling units in many instances and the reason is clear in this determination that without establishing that these are dwelling units, you lose the opportunity to have quantifiable or measurable aspects of the building which leads to restriction in the table. Intent is what is important and the intent is that the size and bulk of structures is limited in these neighborhoods. Mr. Finnie asked whether the vote on the appeal tums on the definition of dwelling unit or the conditioning of the congregate care facility in an R-II zone. Mr. Watts answered that the central issue is whether congregate care is allowed in the R-II zone. Once you get beyond that, you get to the issue of whether the project is appropriately conditioned. Mr. Finnie restated that the decision apparently tums on the merits of the appeal and the merits of conditioning a congregate care facility in the R-II zone. With respect to the City Council Hearing P.T. Assisted Living Page 15 October 18, 2000 appeal, the first issue is debate on "dwelling unit" and "housing unit." With respect to conditioning the use permit, the fact of law is that congregate care is allowed as a conditional use in R-II zones. Under the prior council, whose representatives have spoken so eloquently, R-II zoning by definition and perhaps by intent restricts the number of dwelling units per building. He stated that he understands there is a need for assisted living centers and that people who need that service may not be here to represent their interests because of their age and mobility. Both the applicants and Madrona should be recognized and appreciated by the city and the city council for attempting to provide this needed service. He stated that while he finds appellant's argument on definition is strong it is not enough to support the petition; he also feels the findings and conclusions of the Planning Commission and planning staff are flawed simply because they were faced with an insurmountable task interpreting the zoning code and congregate care facility that are seemingly incompatible. He stated that without prejudice, he will support appellant's appeal and oppose the conditional use application in its current form. He then encouraged the applicants not to abandon the project but to find a way to move forward; he asked the planning staff to work quickly to define a workable plan that recognizes the need for consistent definitions in the zoning code. Mr. Masci stated he is struggling with the SEPA appeal not having a basis in environmental issues, but rather pointing out flaws in the city's code and zoning ordinance. Neither argument has been compelling enough to make him see how this will fit; to make an R-III structure fit into an R-II zone using definitions will strain the system. He cannot reconcile the density with the allowed usage. He noted that he has read the record and heard recapitulations of testimony; was more moved by the three former council members and Mr. Finnie who were instrumental in constructing the Comprehensive Plan and zoning ordinances and said he feels that testimony toward legislative intent does help us understand what they intended at the Plan's adoption. At the Planning Commission, Ms. Erickson's recollections are opposed to those of the councilors although she has in depth experience on the commission for many years. He stated that the fact that four former council members testified against the project gives him great pause to endorse it; however, he stated he does not think the issues discussed are germane to SEPA as they are not environmental issues but code discrepancies. He added he also cannot support the conditional use permit for the project as it stands. He stated that it is clear that density is meant to be limited to four dwelling units, and he was moved by arguments that the intent was to create neighborhood and residential appearance and impact in the R-II zone. The structure clearly doesn't meet that criteria; the bulk and dimension violate the intent. He stated he would not support an affirmative vote on the SEPA appeal but would vote no on the CUP. Mr. Garrison stated that the project has a strong economic driver. He hopes it is strong enough to keep the applicants interested in filling that need somewhere in the R-III zone or by seeking a change in zoning for the building to fit somewhere. If the market is as City Council Hearing P. T. Assisted Living Page 16 October 18, 2000 good as the applicants have indicated, he feels they would be motivated to find a site more compatible. The lack of clarity in zoning and bulk and use dimensions that have evidenced themselves tonight can be brought back before the council for correction; it is not adequate to use the cumbersome enforcement mechanism of inserting a range into a unit to allow it to conform to a particular definition. He commended staff for wrestling with this; a well-intended stretch of the code provisions was tried but it just didn't stand up to the sentiment of the community. Mr. Wolcott thanked the citizens for coming and thanked them for the energy and time that was put into the process; he stated that the staff and Planning Commission should be thanked and his decision is not a reflection on them as everybody did the best job possible under the circumstances. He hoped that no one would be disappointed or left feeling defeated or victorious. The issue was somewhat contentious, but he hopes people can put that aside and look at this as a process that actually worked for the community. There being no further comment, the vote was taken on the motion to grant the SEPA Appeal. Vote: The motion carried 4-1, with Mr. Masci opposed. Mr. Masci then directed staff to prepare a finding supporting the appeal. Because the appeal was upheld, the application must be remanded to staff so there can be no action on the conditional use permit until the SEPA issue is resolved. If the application stands, it will not be compatible with tonight's decision as it will have to comply with the compatibility and density with four units per structure. ADJOURN There being no further business, the meeting was adjoumed at 10:10 p.m. Attest: Pamela Kolacy, CMC City Clerk City Council Hearing P. T. Assisted Living Page 17 October 18, 2000