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HomeMy WebLinkAbout10102005 . i i CITY OFI PORT TOWNSEND CIiT"Y COUNCIL i i MINUTES OF THE SPECIAL BUSINESS SESSION OF OCTOBER 10, 2005 CALL TO ORDER AND PLEDGE OF ALLEGIANCE The City Council of the City of Port Townsend met in special business session this tenth day of October, 2005, at 6:30 p.m. in the Port Townsend temporary Council Chambers in the Cedar Room of the Waterman & Katz Building, Mayor Catharine Robinson presiding. ROLL CALL Council members present at roll call were Freida Fenn, Kees Kolff, Geoff Masci, Laurie Medlicott, Michelle Sandoval, land Catharine Robinson. Frank Benskin was excused. Staff members present were City Manager David Timmons, City Attorney John Watts, Long Range Planning Director Jeff Randall, and City Clerk Pam Kolacy. PUB!LIC HEARINGS ORDINANCE 2913 . AN ORDINANCE OF THE CITY OF PORT TOWNSEND, WASHINGTON, AMENDING A SUBSECTION OF 17.08.040 I THROUGH M, DEFINITION OF "LOT AREA," AND AMENDING SECTION 17.16.030 BULK, DIMENSIONAL AND DENSITY REQUIREMENTS, OF TITLE 17 ZONING, OF THE PORT TOWNSEND MUNICIPAL CODE, RELATING TO SETBACKS AND DEVELOPMENT REGULATIONS OF LOTS AFFECTED BY STATUTORY VACATION Mayor Robinson reviewed the rules of procedure for the legislative public hearings. She asked if any Council members had any interests, financial or property, in the matter of Ordinance 2913. Ms. Sandoval stated for the record that she lives on Roosevelt Street, which is built, but not to the full extent allowed. City Attorney John Watts stated that" as previously noted, he has reviewed the matter of whether the fact that a councilor owned property within or adjacent to a right of way that might be vacated by the Road Law of 1890, would constitute a conflict of interest in a legislative matter. His view and that of Municipal Research and Services is that a conflict would hot exist since this is a matter of general legislation. . City Council Special Meeting' Page 1 October 10, 2005 . , I Mrs. Medlicott referred to her prior diisclosure statement indicating her property interest in one of the plats affected by the 1890 law. Mr. Watts then reviewed the information in the Council packet. He stated the ordinance would apply to any property that shows as a right of way on certain plats of the City that might be affected by statutory street vacation pursuant to the Road Law of 1890. He added the legal issue is not whether or not there should be street vacation, but what will happen to those rights of way in the event they are affected by a statutory street vacation. He stated that the Council adopted an interim ordinance in April which preserved the status quo and prohibited issuance of any building permits for developing vacated rights of way. To date, the City has received no such permit applications; therefore the interim ordinance did not prevent anyone from trying to develop one of the properties. . Mr. Watts explained the history of the state law and subsequent court decisions. He said that judicial determination must occur in order for a statutory street vacation to be recognized. A City map was provided showing the plats that may be subject to the law. . He explained the concept of proscriptive easement, which establishes that if a property has been used for at least ten years continuously, then the use can ripen into a legal claim of ownership; therefore if the City has, at any time since platting and more than ten years ago, opened a road, trail or put in utilities within these rights of way the City would have the right to maintain those uses and so they would be protected. The question has come up as to wh~ther the City can pass a law that overrules the state law and that a City may have ai right to open a trail in a right of way that might be affected by a statutory street vacct1tion. The answer is no, the City cannot pass a law that would trump state law. The Supreme Court has considered street vacations a property right. Another question was raised as to w~ether the Shoreline Management Act would protect street ends affected on bluff~ adjacent to the water. A review with the State Attorney General's office resulted in ithe opinion that the Shoreline Management Act does not override a previously enact~d state law which created a property right. . The interim ordinance was referred ~o the Planning Commission which appointed a subcommittee to work on the issue; the Planning Commission also held a public hearing and the recommendation frqm that body is in the packet materials. Mr. Watts reviewed the Planning Commission's recommendations. The primary recommendations are t~at 1) setbacks are calculated with reference to originally platted lot lines (and not fr~m lot lines resulting from statutory street vacations); 2) a five foot setback also applies from ingress/egress easements; and City Council Special Meeting' Page 2 October 10, 2005 . i 3) an exception to the setback rules ~tated is for fences which are allowed in former rights of way if an owner has quieted title against all public and private easements. Separately, staff and the Planning Commission subcommittee recommend revisions to the City's Engineering Design Standards to clarify what design standards for roads and infrastructure will be for a private right of way. Staff feels this needs further review and may not be a true zoning regulation, more of a design standard. Staff will review the Engineering Design Standards in this light. Mr. Watts stated that the ordinance I!eaves unaffected what a property owner can do on their lot with the one change being a new setback standard if there is a private easement on the lot. It does not aff~ct anyone's right to build according to originally platted lot lines. Long Range Planning Director Jeff Randall stated that the defining element is historic plats; one unfortunate result of the Road Law of 1890 is that plats stay but roads go away and this has created a complex set of realities. He suggested that the ordinance is a simple solution to la complex situation. City Manager Timmons stated that b~ process of elimination, areas impacted begin to narrow down dramatically because most are fully developed, some have already developed public uses (i.e., school diistrict) and terrain also begins to affect some areas. He reiterated this is a unique set of circumstances we are trying to address. . Public comment: Joanna Loehr asked for a show of hands of those who are present to support adoption of the ordinance. About 10 people responded. She stated the interim ordinance was very helpful in settling the Garrison/Flint issue; she feels adoption of a permanent ordinance will help preserve Port Townsend's historic character in that part of the City. She supports the setback provisions and the fence regulations, noting that "no trespassing" signs are more unsightly than fences. Chelcie Liu thanked the Planning Commission for thoughtful deliberations in developing the ordinance which is compatible with the master plan. He stated that it is important that zoning regulations protect everyone, not just property owners, but neighbors as well. Many of the areas that seem to have the rights of way now are double, triple and quadruple lots whiCh may be broken up in the future and it is important that access to those lots be maintained. Imants Golts spoke in support of Planning Commission recommendation, including the fencing stipulation. Judith Bird stated that in her neighborhood, she would like 20-foot setbacks maintained from Quincy Street from hOW on. . City Council Special Meeting' Page 3 October 10, 2005 . Staff response: Mr. Watts stated, in response to Ms., Bird's comments, that permits were issued prior to the effective date of the interim ordinance in April - he said staff would address the issue of why there was not a 20-foot setback from the street and get back to the speaker. He added that the five foot setback from a public or private easement would also apply to a situation where the City had a street in the right of way but only occupied part of it; without a rule, arguably the property owner could build out into the right of way right next to the city street. Whether five feet is sufficient may be a question for another day, but there is currently nothing in the building code that prevents building right up to a proscriptive easement established by a long time road. Mr. Watts added that there is an opportunity for obtaining a variance from the regulations if hardship can be demomstrated. He also commented that the basis of the ordinance is not to prevent development; the basis for the ordinance is to preserve development on a one dwelling per 5,000 square foot lot basis. Mr. Timmons noted that within the current zoning ordinance, differential setbacks are provided for properties adjacent to changes in a zoning district between them (i.e., RII and Rill). He added that another option for owners is the short plat process. . Mrs. Medlicott asked what is the width of easement for a trail and for a utility. Mr. Timmons noted it is anywhere from 20-25 feet. In answer to Mr. Masci's question, the legal doctrine of "laches" provides a defense to a claim and the defense is based on someone not asserting their right or claim within a reasonable period of time; the doctrine can be used as a defense to terminate the claim. A Seattle case in 1996 said a property not asserting a claim for 100 years in a statutory street vacation could not use laches as a defense. Mr. Masci questioned whether the Council is creating an egregious financial burden or simplying the process of fully quieted title. Mr. Watts stated that the ordinance confirms that no one should get a building permit in a right of way unless they prove they own the property free and clear. The use of "or" tries to provide more flexibility beyond just a policy of title insurance. In answer to Ms. Sandoval's question, Mr. Watts stated that the issue of setbacks from streets that have been built but not to full extent of platted right of way is handled in this ordinance by virtue of providing that all setbacks be calculated from originally platted lot lines. Ms. Sandoval asked if a quiet title action would still be required for a fence to be built in the right of way. Mr. Watts replied that it would. . City Council Special Meeting' Page 4 October 10, 2005 . i Ms. Sandoval asked if private ease~ents still available to plat owners would be subject to the same standards as ot~er people developing if not in the subject plats. Mr. Watts replied that the engineerinjg design standards currently on the books would be applied to private development whether using existing or former rights of way. Ms. Sandoval asked if another property owner asserts a right which does not allow a quiet title to be obtained by the applicant, could they hold out for ingress and egress for a public trail. Mr. Watts replied probably not, because the right of the other owners in the plat to potentially use ~he platted right of way would be for their own purposes. The issue is whether a property owner in the middle of a plat would have the right to convey that to the public. Many similar questions that result from the Road Law of 1890 have not been fully answered and would have to be resolved by the Court. Ms. Sandoval asked if this means the No-Motorized Transportation Plan will have to be reviewed. Mr. Timmons stated we would have to look at all the plans; the map shown is done with all the overlays available at this time; through the process of elimination we can narrow down to those to which we don't have a proscriptive right. Q . Mr. Watts stated the Plan may still serve a purpose to show where utilities or trails should go so the City will be in a position to condition development proposals. What may not occur is a City initiated project over a right of way where there is no clear title to do so without the exercise of eminent domain. Mayor Robinson asked if any audience member wished to provide information to clarify any information requested by the Council. Scott Walker stated that the standards to which streets were developed in 1890 were very different from the way they are developed today; then, clearing and grading made a street; he believes the burden is put back on the property owner to prove the right of way was never graded and it is obvious that all of Morgan Hill was clear cut. Mayor Robinson closed the public testimony portion of the hearing at 7:39 p.m. Motion: Ms. Sandoval moved for first reading of Ordinance 2913. Mr. Kolff seconded. Motion carried, 5-1, by voice vote, Masci opposed. Mr. Masci asked to check the date reference for accuracy in the fifth WHEREAS and Mr. Kolff pointed out a word missing in Exhibit A. RECESS . Mayor Robinson declared a recess at 7:45 p.m. for the purpose of a break before the next scheduled hearing at 8:00 P!.m. City Council Special Meeting' Page 5 October 10, 2005 . i i ! i RECONVENE The meeting was reconvened at 8:00 p.m. ORDINANCE 2912 AN ORDINANCE OF THE CITY OF PORT TOWNSEND AMENDING TITLE 17, ZONING, OF THE PORT TOWNSEND MUNICIPAL CODE ADDING CHAPTER 17.05 DEFINING AND REGULAlllNG FORMULA RETAIL ESTABLISHMENTS Mayor Robinson noted that the rules, of procedure for public hearings read at the beginning of the meeting are still in effect. No Council members had any financial or property interests to disclose in connection with the matter. . City Attorney Watts reviewed the paeket materials, reviewing in particular the key elements of the ordinance listed on the agenda bill. Regarding the issue of legality, which he noted is not settled in law because of the absence of any appellate court authority, the City obtained an opinion from David Bricklin. Mr. Bricklin's memo stated that the issue most likely to create legal vulnerability is the requirement for equal protection. Any discrimination must be for legitimate, not arbitrary reason and the question that must be addressed is whether such a legitimate basis exists. It is clear that the basis for formula store ilegislation cannot rely on an issue like local economic protection; the ordinance ~ontains an explicit finding to that effect. Mr. Watts went on to say that the primary basis of the ordinance is to preserve a certain small town character and atmosphere of the City, in part to protect the City's tourist economy. Mr. Randall reviewed the differences between the proposed ordinance and the interim ordinance. Public Comment: . Ian Hinkle: noted a typo in the Ordinance title (new chapter should be 17.50 rather than 17.05). He added that the ordinance as originally drafted did not intend an exclusion for full service restaurants from the 50 linear foot frontage restriction and wondered why it was included without prior discussion. He said he does not believe this speaks to the spirit of the ordinance and requested that Council strike it. He also clarified that he and David Goldman were the drafters of the original ordinance and have been active in the Stop Hollywood Video movement, however the intention of the ordinance was not to make a local economic protection argument and there are other justifications for passage. He submitted a brief letter for the record, clarifying his and Mr. Goldman's involvement in the writing, stating it was personal City Council Special Meeting' Page 6 October 10, 2005 . and not a product of the Stop Hollywood Video effort. He asked Council to adopt the ordinance. Bill Lemaster stated he agrees this i$ not a matter of protecting local business; he said he believes in private property rights but also believes that there are certain situations of cultural awareness that ,one needs to recognize in conducting business transactions. He suggested striking !Ianguage on page 3, lines 18 and 19 so it would read just "unique quality of life of Port Townsend residents." He stated this is not about tourism or economics, but about a cultural way of life. We don't need the speed of transactions of stores being built on efficiency models or a community based on mass consumption. Nancy Dorgan referred to her e-mailiand emphasized that projections for Upper Sims Way are the worst possible fOr: our planning period and we must do everything we can to avoid extra traffic. She stct1ted it is ironic that we are relying on tourism to save our town for ourselves but believes it is a useful spin. She supported striking the New York Times quotation from page 1. . Shirley Rudolph referred to her written comments already distributed to the Council. She stated the ordinance is being based on character which is the method of least legal risk. She stated that when looking at character, look at the character of upper of lower Sims Way districts and think would there be any adverse impact to what is already there; these areas were not meant to be Victorian in character. There are many businesses that would already be classified as formula retail establishments. The City supports EDC and the Chamber but is not looking at economic impacts in the only district locals can depend olh. This is a real town and local interests are not being taken into consideration. She iadded that the restriction limiting the number of formula stores in a building does not take into consideration how large or small the building or parcel may be. The Business Park, for example, has a percentage allocation rather than an arbitrary number. She said that the situation in Port Townsend is not like Coronado, a ci~y surrounded by San Diego. She also noted that in this day and age, 3,000 squa~e feet is a very restrictive size. Arne Hansen stated the American ideal says local government is closer to the people than bureaucratic federal and state governments. This should also apply to the corporate powers creating an erasure of all local flavor. He applauds efforts not to stop them, but to make them abid~ by local design standards. He urged the Council to adopt the ordinance and preserve the unique charm of Port Townsend. Nora Regan said she is wholeheartedly in favor and the ordinance is long overdue. It is the least we can do for our local, businesses. Brad Mace spoke in favor of the ordi!nance to keep alive the unique way and quality of life in Port Townsend. He noted the impact of developing small businesses as helpful to the economy - dollars are spent locally by employees and profits are spent locally by owners. . City Council Special Meeting' Page 7 October 10, 2005 . i i Scott Walker stated it takes a lot to Rut together a town with soul and this is one way to support that. Joey Pipia spoke in support of the ordinance and the group effort involving citizens, Council, and Planning Commission members. Jim Todd remarked on the fact that the ordinance was developed and supported by local people; it shows how concerned citizens are about maintaining the character of the City. He referred to Nancy Dorg!an's memo; particularly the section about traffic and how formula stores would impaot street congestion. David Goldman: stated that he believes the ordinance can meet the equal protection test. He referred to the issue of building a factual record (p. 8, Bricklin memo) and noted that many traffic studies exist, including the one showing that upper Sims will be in gridlock by 2025. He also noted Mr. Bricklin's comment (page 27) that design guidelines will not adequately address the location of such establishments within the City. He supports asserting the preservation of certain important community values. Staff response . Mr. Watts noted that the traffic and engineering studies cited do not specifically indicate that formula stores are the cause of the anticipated traffic problems in the coming years. Studies say we will have a failure period, but do not attribute it to future building of formula stores. He stated the argument should not be thrown away, but it is not "bullet proof." He added that he thinks we do need to be able to articulate that one of the reasons, although maybe not the only reason, for this type of legislation is that there is an economic development/tourist argument to be made. That is the argument others have made in substantial degree and is one of our strongest. Mr. Randall added that economic development/tourist industry is part of the Comprehensive plan. Regarding Ms. Rudolph's question about how many formula stores are currently located in the City, that will take a bit of research. We do not currently know how many businesses would be categorized as "formula" stores under this ordinance. He stated that most businesses that would qualify as formula retail are probably restaurants, but ah accurate answer would depend on a formal survey. Mayor Robinson asked for clarifying questions from the Council. . In answer to Mrs. Medlicott's question, Mr. Randall reviewed the map showing where stores defined as formula establishments would be allowed to locate in the City. He also noted that there are areas available both as new development and re- development. He estimated approximately 35 acres of land available for development. City Council Special Meeting' Page 8 October 10, 2005 . Ms. Fenn asked whether formula retail would be permitted in the map's red area adjacent to Point Hudson (Fleet Marine site.) Mr. Randall stated that is currently a C-II area and formula retail would be permitted; the option would be to specify that if C-II zone is in a landmark historic di~trict, the regulations of the district may apply. Ms. Sandoval asked what zoning regulations would apply to Fort Worden for new buildings or re-adaptive use. Mr. Randall stated there is a lengthy internal process through the state; if plans were apprcpved via that process, then uses would be based on the POS (A) zoning and wcpuld have to be consistent with a conference center, which is found in the municipal code. In answer to Ms. Sandoval's question, Mr. Randall stated that parcels are looked at from a single ownership parcel perspective. Mr. Kolff asked for a response to the' issue in Larry Crockett's letter regarding West Marine. Mr. Watts stated that West Marine would be legal nonconforming if the ordinance were adopted. Even if the building were destroyed, the use would be allowed to continue as the zoning runs with the business, not the building. Ms. Robinson asked whether Curves is considered to be a formula store. Mr. Watts stated it would be considered as providing a service so would not come under the definition of formula retail. . In answer to Ms. Robinson's question, Mr. Watts stated that to qualify as a corner, a lot must be on a public street or private easement. Continuous interior lots are not corner lots and parcels could not cre!:lte extra corners for the purpose of not allowing formula stores. Vacated streets do not qualify when considering the creation of a corner. Mr. Kolff asked about Ms. Rudolph's.point regarding inequity for property owners and whether alternative ways of me~suring impact on formula stores were considered. Mr. Randall stated the merits of the equity of a larger property only being able to have one formula store (smaller peraentage of total area) vs. a smaller property having one formula store (larger percentage of total area). He noted that other regulations limit the size and design and large property owners can subdivide their land. Mr. Kolff suggested eliminating the e)<emption for full service restaurants (page 5, line 18). Mayor Robinson asked if anyone wished to comment on any item brought up during Council questions for clarification. . City Council Special Meeting' Page 9 October 10, 2005 . i i Shirley Rudolph asked whether the Ibcation of La Fiesta is considered a corner lot. Mr. Watts stated it would be conside'red a corner under the ordinance. Mayor Robinson closed public testimony at 9:25 p.m. Ms. Fenn stated she is considering proposing some amendments at the next meeting. These include striking the exemption for full service restaurants from the 50 foot linear frontage rule on page 5, lines 18 and 19; striking the reference to the New York Times editorial on the front page; considering the red commercial C-II District containing Fleet Marine and whether that should be black-lined so that formula retail would not be allowed on that site. Motion: Ms. Fenn moved for first reading of Ordinance 2912. Ms. Sandoval seconded. Mr. Masci expressed several concerns about the specifics of the ordinance, including: 50 foot linear frontage requirement is too restricted; prohibiting drive- throughs may violate ADA as people cannot get out of conveyance vehicles; corner restriction; having two or more formUla retails in the same parcel may violate the commerce clause. He favors regulation through design standards and not zoning and does not believe the ordinance is defensible. He reviewed the MRSC comments, which he stated showed an opinion that this type of ordinance is of questionable legality. . He said the Bricklin memo also supports the idea that we are on weak legal ground; we are providing regulatory rules on formula stores which are inequitable to other businesses and the ordinance may be vulnerable on this ground. The regulations are probably unduly oppressive; the feasibility of less oppressive solutions such as aesthetics, noise and traffic volume must be considered as a public problem but the link needs to be established and must be the least oppressive solution. He believes that line 41 on the first page should ~e struck ("special sense of place") and would remove line 11-16 on page 2 (reference to Coronado). He stated that excluding types of businesses such as banks and health care providers must have some rationale as these exemptions appear to be discriminatory. Mr. Kolff noted that everyone could pick and choose those parts of the legal briefs that might be used to support various positions. He stated it is clear to him that the Council has the legal right and responsibility to regulate, not ban and that regulation is the purpose of the ordinance. He added that just because it hasn't been proven in Court that we cannot do this doesn't mean we shouldn't do this. He stated the Council should do what we think we have the right and responsibility to do in order to protect our tourism economy and small town character; we will be helping make history to help protect this community and others. . City Council Special Meeting' Page 10 October 10, 2005 . . . Mrs. Medlicott stated there is a very $mall amount of area where these types of businesses can locate. She noted s~e has been involved in the tourist industry and "tourism" has been the nastiest wordi in town for years among many people; now all of a sudden the idea of the tourist ecbnomy is being used to support this ordinance. She said she would not lend her vote to something she considers puts the City at serious legal risk. She agrees that it has not been proved we can't do it but she does not want to be unique and be the test case. She added she believes we can accomplish the same goals through application of bulk and dimension standards. Ms. Sandoval stated that she believes the limit of 3,000 square feet may be inconsistent with the recent consideration of limiting a restaurant to 3,500 square feet. She also has concerns about the effect of a binding site plan which may result in a number of formula stores in the tame location. Ms. Robinson stated she will support! the first reading; agrees with removing the NY Times quote, and would like to address the issue of consistency regarding the 3,000 square foot limitation. She is also concerned and needs more clarification about the language regarding block, tracts, anq parcels. Vote: motion carried, 4-2, by voice vote, Masci and Medlicott opposed. Mayor Robinson noted that the publi~ hearing was concluded. ADJOURN There being no further business, the ,meeting was adjourned at 9:46 p.m. Attest: Cdm~ Pam Kolacy, CMC City Clerk City Council Special Meeting' October 10, 2005 Page 11