Session
06-09, a Special Meeting of the Homer Advisory Planning Commission was called
to order on
PRESENT: COMMISSIONERS
CONNOR, PFEIL, HESS, LEHNER, FOSTER, KRANICH
ABSENT: COMMISSIONER CHESLEY (Excused)
STAFF: CITY PLANNER MCKIBBEN
DEPUTY CITY CLERK
JACOBSEN
CITY MANAGER WREDE
APPROVAL OF AGENDA AND CONSENT AGENDA
All items on the consent
agenda are considered routine and non-controversial by the Planning Commission
and are approved in one motion. There will be no separate discussion of these
items unless requested by a Planning Commissioner or someone from the public,
in which case the item will be moved to the regular and considered in normal
sequence.
A. Time
Extension Requests
B. Approval
of City of
C. KPB
Coastal Management Programs Report
D. Commission
Excused Absences
The
agenda was approved by consensus of the Commission.
COMMISSION BUSINESS
The Commission hears a
report from staff, testimony from applicants and the public. Commission business includes resolutions,
ordinances, zoning issues, requests for consideration and other issues as
needed. The Commission may ask question
s of staff, applicants, and the public.
City
Planner McKibben pointed out that the Staff Report in the packet is the same one
she read at the March 15th meeting.
She recognized that the opinion from City Attorney Tans was not in the
packet and the Commission took a short break so she could make copies.
Ms.
McKibben related at the March 15th meeting staff had recommended the
non conforming use and structure at Safeway be accepted by the Planning
Commission. At that time some of the
Commission did not feel it was necessary and requested an opinion from the City
Attorney. She read the City Attorney
Tans’ conclusion that in his opinion “A large
retail store in the CBD, lawfully constructed and operated without a
conditional use permit prior to 2002, became non conforming when code
amendments adopted in 2002 and 2004 prohibited such structures and use with out
an approved conditional use permit. If a
property owner applies for and proves its entitlement to formal acceptance of the
non conformity under HCC 21.64, the Commission should approve it.”
Bill
Smith, citizen, commented in looking at the definitions of non conforming uses
it talks about buildings and it talks about uses. He finds that the building falls into non
conformity because of the dimensional requirements as code states at 8000
square feet, a CUP would be required. Mr.
Smith said acknowledging the building as non conforming brings up the question
of what code requirements are not required to be met. Mr. Smith said the requirement Safeway does
not have to meet is that if they make a change, it can’t carry over to into
something else. He gave an example that
if someone built a building in a setback prior to adoption of the code, they
came to the Commission and got a non conforming acknowledgement that they were
okay because it was built before setbacks applied, but they can’t expand the
non conformance and build into all of the setbacks. Mr. Smith commented that the intent of non
conforming is to not put people out of business if they have a use that would
no longer be allowed because of code changes.
He added that the code is lacking in terms that are needed to deal with
this. Literally speaking, if something
does not meet the letter of the code, it is non conforming. If a non conformity is acknowledged, code says
it can continue or expand on the lot.
Commissioner
Foster commented his understanding that if the structure is non conforming then
it can’t expand the structure. Mr. Smith
responded that the code does not say that granting non conforming status allows
them to change or increase the non conformity except in an obvious case, where
they want to expand on the lot. The
building would expand, which is part of the use. Mr. Smith said he thinks about the intent,
which is to keep people in business and not have to tear down their building
because it was built prior to code.
City
Manager Wrede arrived at
Vice
Chair Hess commented that they have an opinion from the City Attorney and that the
Commission has the ability to interpret the code. Mr. Hess thinks they need to be careful in
determining the non conformity section of the Code. He said the problem is that if the Commission
agrees with the Attorney’s opinion, they need to understand what the
consequences will be. Mr. Hess’s opinion
is that what they will wind up a lot of problems. There will be situations where anytime they
tweak the permitting requirements for code, then anyone who had a permit prior
to the tweaking would then, according to Mr. Tans’ opinion, be eligible to come
to the Commission and ask for non conforming status. Mr. Hess stated that as a Commission they
have the ability to make the interpretation of what this portion of the code
means. He suggested that because of the
potential consequences, the Commission not interpret that a change in
permitting requirements would then allow someone to come before the Commission
to get a non conforming status. Mr. Hess
said his opinion is the issue is that staff thought the best way for Safeway to
add an architectural feature was to ask for non conforming status. Mr. Hess feels there is another way to go
about this. Since the Commission can
interpret the code, he would like to see them come back with an interpretation
that changing a permit status does not allow someone to come in for non
conforming status. He said there is an
end game here. The Commission would like
see Safeway be able to add this architectural feature, which enhances the
building, but he feels non conforming is a dangerous way to do it. He believes that if Safeway makes an
application for a CUP and comes before the Commission, the Commission could
make an interpretation stating that kind of addition does not have to comply
with all the large retail standards that are in the conditional use
process. Mr. Hess said that doing it
this way will not have the negative consequences the non conforming process has
the potential of causing.
Commissioner
Foster commented to his understanding that with a CUP, conditions can be added,
but they can’t be lessened.
Vice
Chair Hess responded that is a literal interpretation. He commented that most of the Commissioners
were here when they discussed the large retail standards and this is an
instance where no one looked at all the circumstances that could come before them. Mr. Hess stated that no one intended for the
large retail standards to apply to what Safeway wants to do and he does not see
a problem with the Commission interpreting the fact that if they came before
them for a CUP the Commission could determine that because the addition does
not cause a traffic situation or any other issues that the large retail
standards encompass. Mr. Hess expressed
that the code needs to be amended to clean this process up. He reiterated his belief that non conforming
is the wrong way to go as it has a lot more negative processes than the CUP
process.
City
Planner McKibben expressed her agreement that code amendments are in order down
the road. She said the problem with the
Commission receiving the application for a CUP is that in large retail the application
can’t be accepted until the traffic analysis, community economic impact
analysis, community participation meetings are complete.
Vice
Chair Hess voiced strong disagreement and reiterated his previous comments,
adding that he does not believe the Commission is going to agree with the City
Attorney’s interpretation.
Discussion
ensued regarding the idea that acceptance of the non conforming use without a
CUP would open “Pandora’s Box”. When the
City did away with building permits and changed them to zoning permits, under
this interpretation, every one of those applicants that received a building
permit, would now be entitled to come before the Commission and ask for non
conforming status.
Commissioner
Kranich reference a code citation from HCC 21.64.030(a) in City Attorney Tans’ opinion
which states:
a. Except as provided in subsection b,
all structures and uses made nonconforming by this title may be continued
and/or expanded only on the legal lot which contains the use or structure as of
Mr.
Kranich said virtually every structure or use that was legal in the City on
City
Planner McKibben pointed out that the only privileges that non conformity allows
is for the non conformity to continue.
They are only allowed to expand in conformance with the current code,
but code requires them to be recognized as non conforming before they can be
expanded.
Commissioner
Lehner used her home as an example. Because
of annexation; her home is non conforming because it
was built without a zoning permit. If
she chooses to expand her home, she would come in, have her non conformity
recognized and apply for a zoning permit for her expansion. She feels that people don’t come in for non
conforming until they do something that triggers the need for a permit.
There
was discussion regarding non conformities with regard to annexation.
Vice
Chair Hess reiterated his view against the non conforming use and Commissioner Foster
asked if Mr. Hess could explain what the problem would be. Vice Chair Hess responded that a use that is
not permitted within a district would now be required to get a permit, and they
would then be allowed to expand according to the non conforming section of the
code.
Discussion
continued primarily consisting of points that had already been brought up. Other points raised were:
·
HCC 21.61.105 CUP
Requirements
for large retail and wholesale development more than 15,000 square feet in area
state that the application has to include a site plan, traffic impact analysis,
community economic report, the report from the two citizen’s participation
meeting, development activity plan and storm water plan. (McKibben)
·
HCC21.61.105 (d),
(e) and (f) state that the conditional use shall
[Emphasis Added] include the specific items.
It doesn’t say it may include, but it shall include. (Kranich)
·
HCC 21.61.105 (a) second
paragraph states these requirements are intended to be used for evaluating and
assessing the quality and design of proposed large retail and wholesale
developments. Where these requirements conflict with other provisions of this
title “including the non conforming”,
the more restrictive regulations shall apply. (Hess)
·
The term “proposed” in HCC 21.61.105(a)
gives the Commission the wiggle room to not do the traffic impact analysis and
et cetera. Once it is non conforming it exists,
it’s not proposed, and therefore no longer needs to meet the requirements. The specific change is what needs to be evaluated,
which in this case is the architectural feature. (Lehner)
·
Safeway came
before the Commission last fall with the plans for their development. The CUP process scared them away from that
plan, so they decided to stay within their building. The Commission made the determination then
that no permit would be required as long as they stayed within their
building. Now they are coming out of
their building, just a little, but it is difficult to give too much leeway even
though they are not doing much to the building and not expanding their
use. (Connor)
·
If the non
conformity is accepted, they don’t want to set and establish a precedent that
will go down the road of a literal interpretation of what the non conformity
code is. (Kranich)
·
There is no basis
for denying non conformity if proof is provided that they meet the criteria for
being non conforming. Safeway can’t get
a CUP without being established as non conforming. (Lehner)
City
Planner McKibben stated that it is important to look at the CUP and non
conformity separately and not use the CUP language as they consider whether to
accept the non conformity. It is either
non conforming or it is not. Staff and
the City Attorney have said that it is non conforming and should be accepted as
such.
There
were examples cited about George Hamm’s property and The Bouman’s hotel/motel
business. Both received non conforming
status, but only the Bouman’s were required to get a CUP.
Commissioner
Lehner asked what the pending motion is.
HESS/LEHNER - MOVED TO ACCEPT
NONCONFORMING USE AND STRUCTURE AT SAFEWAY,
The
Commission continued to dispute the issue of non conformity.
Bill
Smith gave a note to Ms. McKibben and Vice Chair Hess asked Bill Smith to
return to the table for discussion with the Commission.
Bill
Smith stated that he is a little frustrated because he feels the Commission is
wasting a lot of time on one issue.
Under zoning permits code says that no person shall erect, construct,
enlarge, alter, repair, move, improve, change use or convert any building,
structure or parcel or cause the same to be done with out first obtaining from
the Planning Director a separate zoning permit.
If you have a building that has been there since the beginning of the
time, code does not require you to have a permit. Just because someone gets annexed and they
don’t have a permit doesn’t mean they are non conforming and just because they
were there before 1982 doesn’t mean they are non conforming. He suggested they leave that part of the
discussion as it doesn’t apply. Mr.
Smith said he looked at what happens about the permits because he was thinking
along the same lines as the Commission. So
he looked at the permit language and read that the structures that don’t have
those permits are not non conforming unless they were built when a permit was
required and they didn’t get one. If the
building has been there prior to the code, this language does not say they are
non conforming.
Vice
Chair Hess asked if it is reasonable to assume that a change of permitting
requirements makes it possible for the Safeway to be accepted as non conforming
and if the Commission has the ability to make the interpretation whether that
is the intent of the non conforming section of the code.
Mr.
Smith restated what the code says regarding zoning permits. If the building has been there, none of those
items are happening then it is not non conforming.
City
Planner McKibben pointed out that Safeway wants to add the architectural
feature, so they have to be accepted as non conforming so they can get a permit
to do the work.
Discussion
continued regarding non conformity and zoning permits.
Commissioner
Lehner asked Mr. Smith for his opinion of the problems with granting the non
conformity to Safeway and looking at their addition through the CUP
process.
Mr.
Smith responded that he feels they need to be acknowledged as non conforming
because they do not have a permit for a structure over 8000 square feet. Once the acknowledgment is made, then the
Commission needs to decide whether Safeway can add their feature or just their
continued use of the facility.
City
Planner McKibben responded that acceptance of the non conformity guarantees the
continued use; the addition is a separate question. She clarified for the Commission that there
are two items on the agenda. One is the
non conformity. All it does, by the
simple act of voting it up or down, either accepts their non conforming status
or not. The second item on the agenda is
regarding staff’s interpretation that addresses the architectural feature.
LEHNER/KRANICH
I CALL FOR THE QUESTION.
VOTE:
NON OBJECTION: UNANIMOUS CONSENT.
There
was brief discussion reiterating comments that had already been made.
VOTE
(Main motion): YES: FOSTER, PFEIL, LEHNER, KRANICH
NO: CONNOR,
HESS
Motion
carried.
Vice
Chair Hess called for a short recess at the request of City Planner McKibben at
B. Interpretation
of Zoning Code Provisions Applicable to Addition of Exterior Architectural
Features to Nonconforming Structures.
City
Planner McKibben stated that there is no staff report. The memorandum was in the Commission’s packet
previously as an informational item and the Commission asked that it be added
as an agenda item.
Vice
Chair Hess explained that since the Commission has now established the non
conforming status, now they have to discuss whether, procedurally, staff can
issue a regular permit or whether the addition of the architectural feature
will require a CUP.
City
Planner McKibben advised the Commission there has already been a zoning permit
issued based on the interpretation. She
clarified that it is important that the Commission understand that this
interpretation was given considerable thought.
To require an applicant to go thorough the entire CUP process for large
scale retail, only to add an architectural feature, seems overly
burdensome. She explained some of the
costs that Fred Meyer incurred with their first attempt at making application
and the significant amount staff time involved in the process before it ever
comes to the Commission.
Ms.
McKibben explained that in Safeway’s case, the Planning Commission had already
discussed the expansion within the existing building. The Commission decided the traffic impact
analysis and community impact analysis were irrelevant to this project, which
she felt was a logical, thought out decision.
She said requiring the applicant to go through the large retail store
CUP process now, only to add an architectural feature over the entry way seems
like the wrong thing. Ms. McKibben
concurred that technically it is an expansion of Safeway’s footprint but it is
only being done because the engineering requires that there are footers on the ground
to support the snow load. Ms. McKibben
stated that after consulting with the City Manager and City Attorney, the eight
conditions at the end of the memorandum, all of which have to be met, were
established. She read the conditions:
Lengthy
discussion ensued regarding the Commission’s concern that this could set
precedence. Several Commissioners
reiterated many of their discussion points in support of finding a way to
require a CUP without Safeway having to provide the traffic analysis and other
required items required for large scale retail.
City
Planner McKibben reiterated that the conditions in her memorandum are very
specific and it is very unlikely that other buildings in town would be able to
meet every one of the eight requirements.
Kachemak Wholesale, for example, all ready has issues with their
parking, so they could not meet requirement five.
Argument
was made that requiring a CUP with out all of the requirements would allow for
public process regarding architectural features. Vice Chair Hess said that the CUP process to
allow their architectural feature could afford the opportunity for the
Commission to ask for additional amenities like park benches.
City
Planner McKibben reminded the Commission that Safeway clarified that they are
already going to do that (referring to the park bench and amenities), they have
shown the areas on the site plan. She
said if the Commission recalls, Safeway revised the building, reduced the
entryways and the covered walkway so they would not have to go through the CUP
process. It is possible that if they
have to go through the CUP process now, they leave the face of the building flat.
Vice
Chair Hess stated that because of the spirit of the requirements of the large
retail and its commitment to public comment the Commission is going to require
a CUP but not the other requirements.
City Planner McKibben said that she does not see how they can do
it.
There
was discussion that centered around revising item one on the list of conditions
to state that the exterior architectural changes are to be reviewed by the
Planning Commission for consistency with the Community Design Manual. Point was made that it would allow for public
input since it would be an agenda item.
Everyone was in agreement that an amendment to the code is the best way
to deal with this. Further discussion
ensued whether revising the item one requiring Planning Commission review would
apply in this case. It was determined
that it would not as the memorandum had already been provided to Safeway.
City
Manager Wrede weighed in that he would not have a problem with revising the
item one should this happen again in the future. He agreed the best thing to do is to amend
the code so it is law. If the property
owner is doing something to comply with the Community Design Manual or just to
make their building look nice, there could be a shorter process where the
Commission looks at the features and says whether they need a permit.
Vice
Chair Hess responded that it would st
City
Planner McKibben pointed out that Safeway came before the Planning Commission
because staff advised them they would have to go through the CUP process. The Planning Commission considered Safeway’s
proposal, said the building has always been used for retail space and said they
didn’t think Safeway needed to go through the traffic impact analysis, the
community economic impact analysis or community input process. The Commission said as long as Safeway did
not expand the building, only expanding inside the building, they were not
going to require that they go through the CUP process. She stated that was the Commission’s
opportunity if they felt it was really important to have the absolute authority
over the improvements.
Commissioner
Hess countered it is a privilege for Safeway to come to our community, not the
other way around, so it is not unreasonable to ask for conditions. Ms. McKibben did not disagree, and explained
that is why staff advised Safeway that they would have to go through the CUP
process but the Commission didn’t agree with staff. She reiterated that the criteria that Safeway
has to meet in order to add the architectural features are very specific.
Commissioner
Kranich commented that this is where a change or addition of a new section of
code pertaining to CUP’s for existing businesses and structure would fit. It could bypass a lot of the requirements
that would be put on a new large scale retail development.
Commissioner
Foster said his only argument is that the reason Safeway came before the
Commission is because City Planner McKibben advised them that they had to. They wouldn’t have come with concessions had there
not been the potential requirements.
Vice
Chair Hess argued that all bets are off once they decided to add the new
features. Ms. McKibben asked if that is
really the right thing to do. Mr. Hess
responded that they are already making concession not making them go through
the traffic analysis and all that. Ms.
McKibben reiterated that she doesn’t think they can make them go through the
CUP process without going through the entire process of the large retail and
wholesale store. Mr. Hess challenged
that if that is the case then the Commission does not have the ability to
interpret the code.
Commissioner
Kranich expressed his support of Ms. McKibben’s comments based on the fact that
the code says the applicant shall meet those criteria. Commissioner Connor restated Ms. Lehner’s
previous opinion that section applies to proposed development.
There
was discussion that the overall goal is to address this situation in the
code. Ms. McKibben explained that this
interpretation was prepared to address a current situation; it is not the long
term goal.
There
was discussion regarding amendments to the conditions on Ms. McKibben’s memo.
Vice
Chair Hess commented that there is a stop work order on revisions to the code
until the Comprehensive Plan is done, then there w
City
Manager Wrede commented to his opinion that this could be looked at as an
effort to clarify code and may not fall under the clean up work for title 21
where they are going to clarify ambiguities and so forth. City Planner McKibben agreed.
There
was brief discussion that the criteria 1through 8 may be acceptable at this
point.
Deputy
City Clerk Jacobsen read the motion from the previous meeting.
KRANICH/LEHNER - MOVED
THAT THE PLANNING COMMISSION ACCEPT THE INTERPRETATION OF THE ZONING CODE
PROVISIONS APPLICABLE TO THE ADDITION OF EXTERIOR ARCHITECTURAL FEATURES TO
NONCONFORMING STRUCTURES AS PROVIDED BY STAFF.
There
was discussion whether it is appropriate to amend and accept the staff
memorandum. City Manager Wrede pointed
out that there is not a provision in the Code for the Planning Commission to
overrule staffs interpretation of the code.
After
comment from City Planner McKibben on a recommended way to proceed with the
amendments, Vice Chair Hess asked City Manager Wrede if he was saying that the
interpretation of staff and the City Manager would override an interpretation
of the Planning Commission. Mr. Wrede
responded not necessarily. Mr. Hess
asked what happens in the case where there is disagreement from the Commission
on an interpretation by staff. City
Manager Wrede replied that there has been discussion, but he does not know the
answer. City Planner McKibben stated
that code gives the City Planner the authority to do this. Mr. Hess countered that interpretation of the
code falls under the duties and responsibilities of the Planning
Commission. Mr. Wrede clarified it
applies when there is a permit before the Commission. Mr. Wrede explained that the case with
Safeway was one where they had to make a decision as Safeway was already
working. They had been before the
Planning Commission, who determined that they did not need a CUP. If there wasn’t a CUP required to expand the
20,000 additional or so square feet in the building, then why would a CUP be
required for an architectural feature.
There
was brief discussion over the argument of the expansion of the foot print. Comments were reiterated regarding the eight
criteria established by staff and the revision of number one would require
architectural features come before the Commission.
There
was discussion on how to proceed with the actions. There was discussion that adopting the
interpretation wasn’t appropriate.
Deputy City Clerk Jacobsen advised them they could postpone the motion
indefinitely.[1]
KRANICH/LEHNER
MOVED TO AMEND THE MAIN MOTION TO SUPPORT STAFFS FEBRUARY 7 INTERPRETATION OF
APPLICABLE ZONING CODE PERTINENT TO EXTERIOR ARCHITECTURAL FEATURES TO NON
CONFORMING STRUCTURES AND THIS SHALL APPLY TO THE SAFEWAY RENOVATION ONLY.
There
was brief discussion regarding the fact that Safeway came before the Commission
previously, in February 2005 regarding their remodel, which is an important
basis for their actions tonight.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion
carried.
VOTE:
(Main motion as amended): NON OBJECTION: UNANIMOUS CONSENT.
Motion
carried.
The
Commission noted for the record their support of the interpretation was based
on the fact that Safeway had presented its designs to the Commission and the
determination at that time that no CUP was needed.
City
Planner McKibben suggested wording for the next action.
PFEIL/LEHNER
SO MOVED THAT STAFF AMEND THE ITEM ONE IN THE MEMORANDUM INTERPRETATION
DOCUMENT FOR FUTURE SITUATIONS.
There
was no discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion
carried.
City
Planner McKibben suggested wording for the next action.
LEHNER/PFEIL
SO MOVED THAT THE COMMISSION REQUEST THE CONCEPT OF THE MEMORANDUM BE INCLUDED
IN THE PHASE I TITLE 21 REWRITE.
There
was brief discussion of wording.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion
carried.
Vice
Chair Hess adjourned the meeting .
COMMENTS OF THE AUDIENCE
Members of the audience
may address the Commission on any subject.
The Chair may prescribe time limits.
COMMENTS OF THE COMMISSION
Commissioners may comment
on any subject, including staff reports and requests for excused absence.
ADJOURNMENT
Notice of the next regular
or special meeting will appear on the agenda following “adjournment”.
There
being no further business to come before the Commission the meeting adjourned
at
MELISSA
JACOBSEN, DEPUTY CITY CLERK
Approved:
[1] Clerk’s
Note: The adoption of the Subsidiary
Motion “Postpone Indefinitely” k