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HomeMy WebLinkAbout1994-01-18 Regular MinutesJanuary 18, 1994 7:00 p.m. CALL TO ORDER ROLL CALL OFFICIALS CITIZENS COMMENTS CONSENT AGENDA Ord. #1686 Withdrawn /removed for discussion An Ord. #1687, Granting Non Exclusive Franchis Rights to Cable Communications Systems Operators TUKWILA CITY COUNCIL MINUTES Tukwila City Hall Council Chambers Mayor Rants called the Regular Meeting of the Tukwila City Council to order and led the audience in the Pledge of Allegiance. JOE DUFFLE; JOAN HERNANDEZ; STEVE MULLET Council President; DENNIS ROBERTSON; ALLAN EKBERG; JOYCE CRAFT; DOROTHY DeRODAS LINDA COHEN, City Attorney; JOHN McFARLAND, City Administrator; RICK BEELER, DCD Director; ROSS EARNST, Public Works Director; DOUG MICHEAU, Public Works Coordinator; VERN UMETSU, Associate Planner; LUCY LAUTERBACH, Council Analyst. None a. b. c. d. e. Approval of Minutes: 11/29 Sp. Mtg; 12/6; 12/13 Sp. Mtg.; 12/20 Approval of Vouchers: Nos. 68989 through 69243 in the amount of $556,574.57 An ordinance adopting the 1992 King County Comprehensive Solid Waste Management Plan An ordinance establishing terms and conditions for granting non exclusive franchise rights to cable communication systems operators Accept as complete Duwamish Park Improvements contract with Gi Grade Asphalt Construction Co. in the amount of $25,258.59; authorize release of retainage. City Administrator John McFarland asked that item "d" be withdrawn and discussed directly following approval of the Consent Agenda. MOVED BY DUFFIE, SECONDED BY HERNANDEZ, TO APPROVE THE CONSENT AGENDA AS AMENDED. MOTION CARRIED. Doug Micheau, Public Works Coordinator, reviewed several suggested amendments to the franchise ordinance, and explained that these amendments were for clarification purposes. He asked that the changes be incorporated into the master ordinance. MOVED BY ROBERTSON, SECONDED BY EKBERG, THAT THE PROPOSED ORDINANCE BE READ BY TITLE ONLY. MOTION CARRIED. City Attorney Linda Cohen read AN ORDINANCF OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASI a I NGTON, SETTING FORTH THE TERMS AND CONDfl'!t"TS FOR THE Tukwila City Council Regular Meeting January 18, 1994 Page 2 Ord. #1687 (con't) PUBLIC HEARINGS Remand for Findings and Conclusions Baker Commodities Verbatim transcript is attached (26 pages). Action following deliberations: GRANT OF NON EXCLUSIVE FRANCHISE RIGHTS TO CABLE COMMUNICATIONS SYSTEM OPERATORS WITHIN THE CITY LIMITS OF TUKWILA, AND PROVIDING AN EFFECTIVE DATE. MOVED BY DUFFIE, SECONDED BY ROBERTSON, THAT ORDINANCE NO.1687 BE ADOPTED AS READ.* MOVED BY ROBERTSON, SECONDED BY MULLET, THAT THE FOLLOWING AMENDMENTS BE INCORPORATED INTO ORDINANCE NO. 1687: On page 2, Item (p) Definition of franchise, change the words franchising authority in the first sentence to be the word city; 2) page 2, Item (q) Definition of Franchisee, change the word stipulated in the first sentence to provided; 3) on page 2, Item (q) Definition of Franchisee, delete the word and after the words "ordinance and also means" in the first sentence; 4) page 3, Section 2, Item (d) Term of Franchise, amend section to read as follows: The term of each franchise as granted hereunder shall be established by the City Council.; 5) Page 3, Section 3, Applications, delete the words in an amount to be determined by the City following the words accompanied by a non refundable filing fee and insert in its place the words in the amount of $100 to cover the City's costs of processing the application. Such fee may be amended as necessary in the future by resolution of the City Council; 6) Page 4, Section 7, Item (b) delete the word "council" in the first sentence; 7) Section 21, Failure to Improve Customer Service, paragraph 1, delete the words it will be assumed that in the second sentence, and make the word improvements the beginning of the sentence. Delete the words if any along with the commas preceding and following those words in the last sentence of the paragraph.** *MOTION CARRIED. MOTION CARRIED. ORDINANCE NO. 1687 ADOPTED AS AMENDED. Tukwila City Council Regular Meeting January 18, 1994 Page 3 Public Hearing (con't) Remand for Findings and Conclusions Baker Commodities REPORTS Mayor Council Councilmember DeRodas returned at 9:43 p.m. MOVED BY ROBERTSON, SECONDED BY HERNANDEZ, THAT THE COUNCIL AND THE CITY CONCLUDES THE ADDITION OF THE STORAGE TANKS REPRESENTS AN ENLARGEMENT, AN INCREASE, OR AN EXTENSION OF THE TYPE PROHIBITED BY TMC 18.70.010 AND THAT THE CITY THEREFORE DENY THE APPLICATION. MOTION CARRIED. (See page 25 of verbatim transcript.) Mayor Rants announced he will attend the AWC conference in Olympia on February 2 and 3. He invited councilmembers to join him. Councilmember Duffie asked that Council consider a policy on buying back guns to help get them off the streets. Mayor Rants suggested the matter be referred to the Finance and Safety Committee. Council President Mullet asked that a presentation by RCAA be scheduled. Council set the date for February 14th. Robertson South King County Area Transportation Board (SKCATBD) Robertson addressed the need for public information on earthquake preparedness. Mayor Rants said that department heads and key staff had gone through an exercise using a scenario of disaster for the city. Through "tabletop exercises" staff examined what their challenges and responses would be if faced with a citywide emergency. They concluded that of foremost concern was the need for a self sufficient phone system and a generator to make a fire station (probably #54) self sufficient. City Administrator John McFarland explained that the operational emergency services plan, administered by the mayor is in place. The enabling ordinance has been revised and will be returned to the Finance and Safety Committee for further discussion. A community organizer has been identified and is putting together a formal plan organizing neighborhoods to be self sufficient during the critical first 72 hours of a major emergency. Councilmember DeRodas reported she attended a noon meeting of the Human Services Advisory Board on January 7th. The presentation focused on the actions of cities and schools. DeRodas said that all five Tukwila schools are represented by sponsors as follows: Cascade School, sponsored by the Bon; Thorndyke, sponsored by Costco; Foster, sponsored by Boeing; Tukwila, sponsored by the SLaTac Port of Seattle; Showalter, sponsored by Larry's Market. Employees of these businesses visit the schools and work with the students. Tukwila City Council Regular Meeting January 18, 1994 Page 4 EXECUTIVE SESSION 9:55 p.m. 10:15 P.M. 10:15 p.m. MOVED BY ROBERTSON, SECONDED BY MULLET, TO ADJOURN TO EXECUTIVE SESSION FOR 30 MINUTES TO DISCUSS A POSSIBLE LAND PURCHASE. MOTION CARRIED. MOVED BY DUFFIE, SECONDED BY ROBERTSON, TO ADJOURN EXECUTIVE SESSION AND RETURN TO THE REGULAR MEETING. MOTION CARRIED. ADJOURNMENT MOVED BY DUFFIE, SECONDED BY ROBERTSON, THAT THE MEETING BE ADJOURNED. MOTION CARRIED. J ohn W. Rants, Mayor ,J e E. Cantu, City Clerk VERBATIM TRANSCRIPT TUKWILA. CITY COUNCIL MEETING- JANUARY 18, 1994 PUBLIC HEARING: REMAND FOR FINDINGS AND CONCLUSIONS BAKER COMMODITIES Craft: I have not. 1 Mayor John Rants: This is not a public hearing per se tonight. It is quasi-judicial, remanded for Findings and Conclusions. We will open it City Attorney Linda Cohen: This matter's been remanded back from Superior Court from Judge Wesley so that the Council may deliberate and enter Findings and Conclusions of Law. I introduce Stephanie Arend, who represents Baker Commodities, and suggest that both she and Terry Leahy, who is representing the City of Tukwila, have 15 minutes to present their information to the Council. That being legal issues and proposed findings and conclusions. Since this is a matter that is on the record, there will be no new evidence that will be introduced. Rants: I believe you also recommended that the Council, if possible, hold questions until both sides are through? Cohen: That's true. And at this time since this is a quasi-judicial proceeding, if any Councilmember's have any conflict of interest or appearance of fairness issues, it would be an appropriate time to disclose them now. Councilmember Joyce Craft: I would like to disqualify myself from this basically because as a newly elected Councilmember, I haven't had the access to the information and I don't feel that I could read the information and give a fair opinion tonight. Cohen: The record is voluminous. You haven't been able to familiarize yourself with the record? Councilmember Dorothy DeRodas: At this time I feel I must disqualify myself for largely the same reasons. I am new as a City Councilmember and I have not been privy to any of the past actions concerning this matter. I'm not acquainted with the record. Cohen: If each of you could step down from the dais. Rants: Would you two ladies step down please from the dais. (Councilmembers Craft and DeRodas left Council chambers at this time.) Do I need to open a public hearing or anything or just ask Stephanie to come forward and.... Cohen: Yes. Rants: Stephanie, please. Stephanie Arend, Baker Commodities: Thank you, Mayor Rants. Members of the Council, my name is Stephanie Arend, and as you know, I represent Baker Commodities. As has been indicated, we're here on a remand from superior court for the limited purpose of reviewing the existing record and entry of factual findings 6 2 on whether the proposed storage tanks constitute an enlargement, and increase, or an extension of a non conforming use. Both Mr. Leahy and myself submitted to you last week proposed findings and conclusions and some legal argument in support of our proposed findings and conclusions. I have prepared in addition to that a response to Mr. Leahy's 21 page memorandum which I would like to submit at this time for your consideration. (Memo from Stephanie Arend, dated January 13, 1994, distributed.) I apologize I was not able to fit this together any sooner what with the holiday and all. Briefly, there's three facts that are relevant. Just to refresh your recollection, this rendering plant has been around since the 1930s on the existing site. In 1991 the Port of Seattle closed it's tank farm which had been used by Baker Commodities since the 1940s. That required them to relocate the tanks somewhere else, and they subsequently applied to relocate nine of those tanks onto their Tukwila site. There's three critical things that you need to be thinking about as you deliberate and reflect upon the record. First is that your conclusions, your factual findings and your legal conclusions have to be based on the existing record. Second, you have to understand what it means to enter factual findings; and third, the conclusions must be based on those findings. First with regard to the existing record. There's some 486 pages in this notebook. This constitutes the record. So, in order to enter your factual findings, you must find the evidence in these 486 pages. If it doesn't exist here, you can't enter a finding on that evidence. But everything in there isn't evidence that's appropriate for consideration for factual findings. For example, statements by legal counsels such as myself are not evidence, and they are not appropriate for factual findings. Statements by the Planning Commission. Statements by members of the Council. None of that is evidence that can support a factual determination. What we say tonight is not evidence. In addition to that we cannot supplement the record in any form. Although we might like to, we are limited to what is in that record. With regard to the factual findings, as I said it must be based on evidence in the record. And it must relate to the issue that is before you and nothing else. This can be very confusing, not just to lay people but also to lawyers and judges as to what is appropriate for factual findings. And it's a matter that's often litigated. You have to take a look at what is the evidence in the record. As a fact finder, it's your job to resolve factual disputes if there are in fact disputes in the evidence. If there isn't a dispute, and all of the evidence only supports one factual finding, you must enter that factual finding even if you personally disagree with it. To give you somewhat of an innocuous example, assume that it was relevant what color shirt somebody wore on a particular day and the evidence in the record was that the shirt was green, but your recollection was that the shirt was blue. There's no evidence in the record to suggest that the shirt was anything but green. Your factual finding must be that the shirt was green if that finding is relevant to the issue that's before you. And then as I said, the conclusions that you draw must be based on those factual findings. As set forth in my letter to you of last week, we believe that the storage tanks are permitted outright in the M -1 zone, which is what this site is zoned. In your code, the M -1 zone allows outright storage of materials that are used in the manufacturing and processing of other uses that are permitted in the M -1 zone. And it doesn't say the storage of those materials are permitted as an accessory use, it says the storage of those materials are permitted outright. M -1 allows manufacturing and processing of things like cosmetics, pharmaceutical. The materials that are stored in these storage tanks are used in the manufacturing and processing of cosmetics and pharmaceutical, and therefore, the conclusion that can be drawn from that is that it is permitted outright in the M -1 zone. But even if you don't reach that conclusion, I'd like to direct your attention to a couple of places where you can look for guidance on whether or not these tanks constitute an enlargement, an extension, or an increase of a non conforming use. The first place you should look is your own Code. And I would direct your attention to Section 3 18.70.010 which is the "purpose" section of your non conforming use provision. And I'd like to read to you just part of that sentence. It says, "It is the purpose of this chapter to establish limitations on the expansion and extension of non conforming uses and structures which adversely affect So, you're not looking to eliminate all expansion and extension or non conforming uses even. But you're looking to place limitations on expansions and extensions which have some type of an adverse effect, and presumably, of course, that's adverse effects on the surrounding properties. That is supported also, that theory of determining whether or not it's appropriate is supported also by the case law. And the case law gives you another method of guidance. And that's whether or not the proposal results in a fundamental change in the nature and character of the underlying use. So you have to ask yourselves in analyzing this question, does the addition of nine storage tanks to the rendering site where there's already storage tanks, where they're not going to be storing anything different than what's already stored on the site. Does it result in a fundamental change in the nature or character of the rendering plant? Or does it result in an increase in the adverse effects off the site? I think if you ask yourself those two questions, you will find that the answer is no. I'll give you some examples of case law that -to help you and guide you in this decision making process. One example where court looked at did it make a fundamental change in the nature of the use was in a case called Shields vs. Spokane School District that is referred to in the Keller vs. Bellingham case. There the change was from a non conforming elementary school to a trade school. And the court looked at such things as the fact that the trade school would have shops, machinery. It would significantly increase noise and fumes and those types of impacts, and in that case the court said it was such a fundamental change in the character of the use, that it was prohibited enlargement of a non- conforming use and it was not allowed. Some of the cases where they have found that the impact is so different and so significant that it has not been allowed are cases like Meridian Minerals vs. King County. That was a gravel operation where it went- the transformation was from seasonal sales to year -round sales, from transportation in the form of railroad to 14 truck traffic trips per day. And there they found that the increase in the traffic, the increase in the sales, the increase in the amount of blasting had such a significant increase in the adverse impacts on off -site property owners that it was a prohibited enlargement as a result. Another similar case is Coleman vs. Walla Walla which is also cited in the Keller vs. Bellingham case. There the change was from a rooming house to a fraternity. And the court there again said that the impacts created by a fraternity were so significantly greater than a rooming house, that it was a prohibited enlargement. This case, however, the one that's before you, is more similar to Keller vs. Bellingham and the case cited in it which is Jonagan vs. Staley. That's not a Washington case. It's from Maryland. There's also a number of other cases similar to it from across the country where what you're doing is merely increasing something that's already occurring on site, and you're not having any increase in the impacts off -site. Here, what you're increasing is the amount of storage, but it's not resulting in any type of a change in the character of the use whatsoever. In fact, it doesn't affect production capacity at all, and it has no increase in adverse impacts off-site. I'd like to address quickly just a few of the things, the more substantive things, that were presented in Mr. Leahy's written brief. He talks about three different types of impacts. And these are the impacts that it would be appropriate for you to analyze and enter findings on. One is odor. When you review the 486 pages contained in this record, you are going to find that the only evidence on the issue of odor coming from these tanks is found at pages 114 and 131 and that is the information from PSAPCA, Puget Sound Air Polution Control Agency, and they conclude that there will be no increase in the odors from these tanks. They are the agency charged with determining air quality. And the law requires that you give great deference to their determination particularly in light of the absence of any 4 evidence to the contrary, expert or otherwise. And certainly here, there was no one coming forward and saying they're wrong, there's odors coming out of the tanks. You're not going to find that evidence in the record. It simply doesn't exist. So the evidence only supports an entry of a finding consistent with PSAPAC's conclusions found at page 144 and 131. With regard to the esthetic or visual prominence impact, again you will find that no one testified with regard to esthetics of the site. And actually no one testified one way or another to my knowledge. But in any event, the original proposal and as it was approved by the Planning Commission, contained requirements with regard to landscaping. And the landscaping was not only to further buffer these nine tanks, but also to further buffer the existing facility. So there'd be great benefit, actually, to the surrounding property owners by allowing that landscaping to go in. But in any event, you have to look through the record and see if there's any evidence on esthetic impacts. You will find that there is none, and therefore, you cannot enter a finding that this will have an adverse esthetic impact. The third impact which is quite controversial is the truck traffic issue. Here again you are not going to find that a traffic engineer came in and testified that this change is going to result in increased congestion on a particular road or that it is going to result in increased traffic trips. What you will find, however, is evidence that supports that it is, in fact, going to be basically the same trucks, the same number of trucks, but they're going to be going to a different place than where they were going before. It's real simple to think about. If you're not increasing production capacity so the actual volume of material that is being processed at the site is not changing, how can it change the trucks? There's nothing about the trucks that are changing. We're not going to smaller trucks, bigger trucks. There's nothing about the trucks that is changing. So the amount of trucks are the same. There were references in Mr. Leahy's letter to a number of different things on truck traffic. Mostly statements by lay persons, citizens who live in the area. I'd like to refer you with regard to that to a case called State Exrell Wenachee Congregation of Jehovah Witnesses vs. City of Wenachee. That case is found at 50 Washington 2nd, 378. It's a 1957 case where the Wenachee Board of Adjustment denied a church group's application for a zoning permit to build in a residential district, and the denial was based on a finding map, the proposed use would contribute to severe traffic congestion. The only evidence in the record, however, to support the finding was the testimony of area property owners, and it was unsupported by any traffic engineer's survey. The court found that this testimony was insufficient to support the Board's denial of the permit. And there is no reason to think that the court would do anything different in this case. There is no evidence to support an increase in truck traffic. The traffic is going to be the same. I'd also like to clarify there's a number of citations regarding where the trucks are travelling. They don't specifically say, but if you look at where the particular property owners live, I think that you can reach the conclusion that they're talking about 56th Street. Well, if the City looks at it, it will know that it prohibits Baker Commodities from going down 56th Street, and Baker's trucks travel along the river on 130th. They are required to do that. All of Baker's employees as well as their contract haulers are required to abide by the City's agreement that they will only go on 130th. There may be other trucks that travel on 56th that do not belong to Baker, but Baker's trucks are not travelling on 56th. Finally, I'd just like to point out to you a few inconsistencies in regard to four permits that have issued since 1982. There seems to be a little bit of confusion regarding those four permits that I hope I can clear up pretty easily. In 1984 you issued an Unclassified Use Permit to Seattle Rendering who then owned the facility. This was for the construction of a small laboratory building. The laboratory building is a separate building. It was a brand new building and it was for product testing. Product testing was already going on site, but it was going on in the -where the offices 5 are located. It was not, as Mr. Leahy characterizes, a replacement of an existing building, nor was it a repair. It was a brand new building, and it allowed them to enhance their operations and expand their product testing. In 1985 an Unclassified Use Permit was issued to allow the construction of a bio -tower filter system. This is contrary to Mr. Leahy's characterization, this does not clean the air. This is part of the wastewater treatment at the site. And it previously had been -the wastewater had been treated through an anaerobic digester. So I'd like to clarify that that was not for the purpose of cleaning or filtering the air, it was wastewater treatment. In 1987 an Unclassified Use Permit was issued to allow the construction of a 12 foot by 42 foot metal framed lean -to which again was another building. And in 1988 another Unclassified Use Permit was issued to allow the installation of an incinerator and a waste heat boiler. That was specifically for the purpose of reducing odor emissions. My point -I want to clarify the facts is one reason I went through that, and I also want to point out that each of these permits was not for the sole purpose of improving air quality. They in fact had a number of other purposes including improving and enhancing the facilities, and permits were issued for those. And I would suggest to you that this is no different than any of those applications. I think that when you review the 486 pages, that you're going to find precisely what I've indicated to you this evening and what's put forth in my two letters. And that is that there is no evidence that odor emanates from the tanks. There is no evidence that this is going to increase truck traffic. There is no evidence that this is going to increase adverse impacts off -site. And because of that, I would submit that you adopt the findings as I have proposed them attached to my letter that I submitted last week and conclude that this is not an expansion, extension, or increase of a non conforming use and issue the permit. Thank you. Rants: Thank you. Cohen: I would suggest at this time since Ms. Arend has presented some new information, that Council perhaps recess for 15 -20 minutes to read the 5 -1/2 pages that she's provided and then also Mr. Leahy will have an opportunity to read it and respond. Rants: I'll entertain a motion for a 20 minute recess. Councilmember Joan Hernandez: I move for a 20 minutes recess. Councilmember Dennis Robertson: Second. Rants: Moved and seconded. Any discussion? (no response). All in favor say "aye": (unanimous response); those opposed: (no response). We are in recess. RECESS 7:36 TO 7:56 P.M. Rants: I'll call the Council back to order. Mr. Leahy. Terry Leahy. Counsel for City: Good evening members of the Council. My name is Terry Leahy. I've been representing the City of Tukwila in ongoing litigation with Baker Commodities arising from an earlier determination by the City Council. The issue before the City Council tonight on remand is simply this: Will adding nine storage tanks enlarge, increase, or extend Baker Commodities' legal non conforming use? Tukwila's non conforming use ordinance sets out its purpose, a statement of its purpose. And the stated purpose of that ordinance is to establish limitations on the expansion and extension of non conforming uses which adversely defect the 6 development and perpetuation of desirable residential, commercial, and industrial areas. I emphasize development and perpetuation because they deal with two different concepts. Development is forward looking. Perpetuation is present looking. Preserving what presently exists. That is significant in the Council's analysis tonight. Limitations imposed by that ordinance to achieve the purpose I just described include these two. Number one: A legal non conforming use shall not be enlarged or increased nor extended to occupy a greater use than the use occupied when the new zoning took effect. A second limitation imposed by that ordinance is that no non conforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by the use on the date the zoning became effective. Now, the court on remand instructed the Council to focus on the entire non- conforming use ordinance. And that provision that I just read is in the ordinance and is appropriate for the Council, therefore, to consider. In the fall of 1992 the Council concluded that adding nine tanks was prohibited by the non conforming use ordinance that I've just described. Baker Commodities appealed that determination. They argued before Judge Wesley that the conclusion Council came to was not supported by findings of fact, and that the Council made no findings of fact which would support the conclusion that adding these tanks would constitute an enlargement. When I use enlargement by the way tonight, I mean to refer to the entire phrase in your ordinance. The phrase reads, "enlarged, or increased, or extended So when I say enlarged, I mean all of those three words. The judge agreed with Baker's argument. The judge said the conclusion wasn't supported by findings of fact. So the judge remanded it to this Council to apply "applicable" law to the record as it plesently exists,to enter findings of fact that relate to those considerations ncybased upon those findings of fact, draw a conclusion about whether this does or does not constitute an enlargement. The process is a simple three step process that I think the court had in mind for the Council to follow. Step 1: Identify the factors to consider in determining whether a proposal is or is not an enlargement; Number 2: Review the recordZlight of those particular factors, and make findings that relate to those specific factors. And the third and final step is: Once you've arrived at your findings, draw your conclusions based upon the facts that you found. Your conclusion would either be that it is an enlargement, or that adding the tanks is not an enlargement under your ordinance. The role this Council plays then on remand is to apply the law to the facts in the existing record. Find facts and draw conclusions. My role in the process we're doing right now is to advise you on what the applicable law is. I have attempted to do that in the memoranda that I submitted to you and provided to Ms. Arend- -the 21 page memo. A number of pages -I see in her letter that I just read that she takes exception to some of the discussion as not being findings of fact. Again, my purpose in that memo was to first and foremost to set forth the applicable law so that you could then apply it. I have no vested interest in the decision you reach tonight. You can apply the applicable law and reach either conclusion. It's entirely up to you to find the facts and to reach the conclusion. You may arrive at the same conclusion you arrived at before; you may arrive at a different one. For purposes of preparing my submission to you and to illustrate the process as I understand the court wanted us to do it, I set out various findings, various factors that you can consider. The applicable law is set out in some detail, but it comes down to, I think, 17 factors. And what I would like Stephani6 to do now is to pass out to you a one page summary of the factors that you've already seen. That is a list of the 17 factors that appear in the memo with references to each page in the memo that I submitted to you. And in my opinion, as your attorney, each of those 17 factors are appropriate factors for this Council to consider in arriving at findings in this case. The sources of those factual inquiries are case law, general rules of construction, your own ordinance, and I also drew upon my own experience. In law school I served for two and a half years as the assistant to 06-7 7 Professor Norman Williams who wrote a five volume treatise on planning law. Part of my job was to review cases on legal non conforming uses and expansion issues from around the country. I've also been involved in litigating this particular issue, the expansion issue of legal non conforming use. I brought that experience to bear in identifying these 17 factors. These 17 factors fall into basically three categories. The first category is nature of the proposal. The second category is impacts of the proposal. And the third is kind of a catch -all other considerations. The first six inquiries are inquiries that deal with the nature of the proposal. What I'll do right now is go through each one of these 17 and briefly comment on the source of the inquiry so you understand the purpose behind each one of these and the sources of it. The first inquiry is "Does the proposal involve moving structures onto the site which were not there when the zoning changed The source of that consideration is your own ordinance. That sub two talks about moving a use from one part to another part. That is indicative of the policy of this City, the strict policy against expansions of legal non conforming uses. That's why that's an appropriate factor for this Council to consider. The second factor, "Does the proposal involve an increase in on site production or storage capacity Notice the words "on- site Legal non- conforming use analysis focuses -takes a snapshot of the use that was in existence on the site, on the site, when the zoning changed. Here, there were plants -I mean there were tanks- -that were off site that somehow were involved in production capacity but were not part of the on site storage capacity. That is a significant factor and one that's appropriate for you to consider. Factors three, four, and five deal with whether it's incidental in character, a repair in nature or modernization in nature. Keller and the other cases tend to indicate that incidental changes or changes in the nature of repair or modernization weigh against the conclusion that it's an expansion. So, it's appropriate for you to look at whether these changes, this addition of storage tanks, falls into either of those three categories. Number six, "Is the proposal one which carries out a feature of plant design which pre- existed the zoning change The court in Keller discussed and considered significant the fact that when Keller originally designed the plant, they designed it with adding those new cells in mind. That's an appropriate consideration. Items seven through fourteen all deal with the impacts of the proposal. Number seven, "What are the characteristics of the present non conforming use which cause off site impacts Now, the nature of a non- conforming use is that it has impacts, and identifying those impacts is a beginning analytical point for non conforming use analysis. Is the proposal one which will have the net effect of reducing adverse off site impacts? Again, this notion of repairs and modernizations being favorably viewed reflects kind of an underlying policy that those kinds of things result in a net reduction of the impacts, and so they're o.k. Item number nine, "Which geographic areas are affected by the present operation That's appropriate to consider because given your policy of protecting, preserving existing uses and enhancing the development of future planned uses, you need to first identify the areas that are affected by the present operation. Number 10: "What current uses exist within those geographic areas Again, that's part of this process of determining what are we trying to preserve and what kind of future development are we trying to opportunities are we trying to preserve? Eleven: "What uses are planned for the future within those geographic areas Again, the same point. Twelve: "Will the addition of the tanks cause a change in the nature of transportation? Both Ms. Arend and I have indicated that that is an appropriate consideration for this Council to engage in. Thirteen: Will the addition of the tanks cause a change in the nature of those taking delivery? The Meridian case, which is one of the cases involving this issue, indicated that a change in the nature of the market is a significant factor for a City to consider. Fourteen: Will the addition of the tanks cause a change in the risk of adverse impacts from the operation of the non conforming use? Again, where you're looking at the impacts of a use over a proposed expansion, it's significant to look at whether what they're doing is going to increase the risk of harm that's associated with the use. The miscellaneous factors, the last three -15, 16, and 17. Fifteen deals with how the city attorney or staff interpreted and applied the ordinance. Keller says that that was significant in Keller, and in fact, Baker advances the same rule here with respect to the Puget Sound Air Quality determination, which by the way, that was something that came up -the significance of that letter from Puget Sound Air Quality was something that came up before when we argued this before Judge Wesley. And I want you to know that what I pointed out to Judge Wesley was what I felt were some of the short comings in that letter and the reliance on that letter. First, that letter incorrectly assumed that tallow is coming from off site. Second, it assumed that there were no people upset by the operation, and this was based upon the fact that there were no -it pointed out that there were no complaints while the tanks were at the Port of Seattle, but that's not an area where people would everything stinks down there, which was something that came up in the testimony before the council before. There were also questions about whether the tanks were old and might be subject to breaking. And even that letter noted that there was a slight tallow storage odor that quickly dissipate, but even that letter acknowledged the existence of that slight tallow odor. Sixteen: Do those who object to the proposal live or work in the geographic areas? Keller indicated that was a significant factor for -an appropriate factor for a municipality to consider in doing this analysis. And finally, did the applicant introduce any evidence bearing on the costs associated with the proposal? Again, Keller went on at length in that opinion to talk about how much money the applicant had spend on that proposal. Here, there's no evidence of any amount that has been spent by Baker Commodities. So, again, I have no vested interest in the outcome here. What I would -my role is simply to advise you on what I believe the applicable law is, and what I believe the applicable law is is the 17 factors that I have had handed out to you. Your task is to engage in an analysis of those factors to arrive at your findings and from those findings to arrive at your conclusions. Rants: We are now open for questions from the Council. Robertson: I have a question of Terry Leahy. In reading the material presented from both yourself and from Baker Commodities' attorney, there seems to be some question about the use of the word "use". When we talk about enlargement, I want to make sure -it's my understanding that the City ordinance is dealing not just with a potential enlargement or increase in production. Production is one of the uses of this property, but it is in a enlargement of the use of the property. And the fact that production may or may not be enlarged is one issue. But the basic issue in the City ordinance I think in what I read is the use, the non conforming use enlarged. And storage is a use of the property. So, focusing on whether production changes, I'm puzzled. It seems to me the focus is on whether the use of the property changes or increases, not whether production by itself changes. Leahy: Correct. I agree with your interpretation. The ordinance and the analysis are not limited to simply whether production will increase. The ordinance is broader than that and the law is broader than that. It allows consideration of both the nature of the proposal, how that changes in any way the present operation and the impacts of that. So, you're correct. Robertson: Thank you. 8 Robertson: I'd like to point out one more.... 9 Rants: Are there any other questions, Council? (no response) Well, if not, I believe we're ready to begin discussion. Conclusions and findings of fact. Robertson: Well I would propose that in order to have some type of structured discussion of this and to make sure that we really look at the facts and the information presented and the questions that we use the 17 questions that were provided to us as a structure for the discussion. Otherwise, if we start and chronologically go through the book, page by page, I -so I would suggest that we basically go through these questions and any other ones that we see and look at both the material presented by both attorneys involved and the black book with all of the records. Rants: If we have consensus from the Council, we'll begin with Number 1. Anybody like to address Number 1? Does the proposal involve moving structures onto the site which were not there when the zoning changed? Councilmember Joe Duffle: Well, I'll start off on that. I think that by moving this on, it was not there when we first started on this zoning. So, I think that by doing this, I do think that it enlarged the site because it was not there, they brought it down from some place else. And I just think, to me, it was an enlargement. It was a storage, maybe not -which is a holding tank, but to me it is enlarging the production that they had down there. Robertson: In looking at that question, that was the very first one that I looked at a long time ago when this came up. If you start on page 37, which is a supplemental sheet for project and non project proposals to be completed by the applicant, I think that this is the EIS, summary EIS. Anyway, in this document that was created by filled out by the applicant, by Baker Commodities, Item one on page 37 of the book, it says "what are the objectives of the proposal And the answer put in by the applicant is "relocate nine storage tanks from the Port of Seattle Terminal 18 which is closing to the site And it goes on to say, "proposal will allow additional storage of tallow on site. Approximately 985 tons of added storage will result So it seems to me that from there I can go through on page 70 of the book, which is an unclassified use permit application, and I presume prepared by the applicant and it was received January 7, 1992. Under Section 8 it says, "response, correct the effect of this proposal's to maintain current production levels by moving storage tanks on site rather than losing them with the closure of Port of Seattle's tank farm. The proposal will prevent the additional storage of a maximum of 985 tons of tallow on site So, I can go on and quote on page 71. Basically, it says the same thing that we're replacing -on page 71, on Section 11, it says, "a proposal will allow current tallow production capacity to be maintained by replacing existing off site storage which we lost when the Port of Seattle closed it's tank So, it's clear that the answer to the question, at least in my mind, is that they're moving tanks, the proposal is indeed to move tanks on site that were not there before. And there is nothing anywhere I could find in the record that indicated any intention or plan at the time that this became non conforming to ever move those tanks or any other tanks on site. There's no record I saw anywhere in this book. Rants: In Keller vs. Bellingham it was almost like they were grandfathered. Thirty two in the original plan and 26 that were originally built, and they still then had the option of doing that. Any other comments on this one? 2c c:�� Councilmember Steve Mullet: I don't think this falls in exactly the same category, though. There was, from the record, no intention of ever putting these tanks on this property. And the record in Keller seemed to indicate that there was.... Rants: What I was saying is they do differ in that respect, they are not the same. They do different. Robertson: O.K. In the memo submitted tonight by Stephanie Arend there is no response to paragraph 30, so I'll add one more thing. On page 87 there is a memo to John McFarland from Vernon Umetsu, Department of Community Development, March 30, 1992, and it goes on to say the rendering works proposes to expand their unclassified use permit to all, all -and I assumed he meant allow construction of nine tallow storage tanks. These tanks are to replace other off site tallow tanks. So it's clear the answer is yes. Rants: O.K. Now we go to... Councilmember Allan Ekberg: I'd like to point out one additional item in the checklist on page 70. The applicant uses the words "increase on site tallow storage tanks Item 6, proposed unclassified use requested. It says "increase on site tallow storage by installing nine storage tanks The word "increase" is used in their own application. Rants: You're now speaking to Number 2 also. Ekberg: Yes. Rants: Comments on Number 2. Duffie: I say yes. Hernandez: I believe that page 37, we've already referred to that once, but it does say that it allows the additional storage of approximately 985 tons of added storage will result. Mullet: I think that's on page 183. Hernandez: 37 Robertson: And, also, Terry Leahy referenced page 374 in his memo which is a verbatim transcript from the public hearing on September 14, 1992. At that point Mr. Hammond, who I believe represents Baker, said -I'm sorry, I've got the wrong reference here. Oh, here, Hammond. I think it's nine tanks that are allowed. Anyway, "totally all we're asking for is 925 tons storage which we presently -we have 1400 tons So I think what he's talking about is the increase. Again, it is an increase. And that's out of a public testimony. So the answer's got to be an increase. There is no reference to removing. When I ask myself the question, is this an increase or not, if they're bringing tanks on site, would they be removing existing tanks perhaps? And no where in the record did I find a reference to existing tanks being removed when I read it. So this is an addition, an increase. Rants: Any further comments on Item 2? 10 �c Robertson: Or how much it is after you're done. Rants: I believe the answer to Number 2 is yes? Hernandez: Alright. Robertson/Duffie: Yes. 11 Hernandez: Have we already referred to page 70? On page 70 there is a reference to "the proposal will permit the additional storage of a maximum of 985 tons on site And that is in the unclassified use permit application. Rants: Alright. Robertson: I'd like to go back to the memo from Stephanie Arends when she references paragraph 31, which is this question. She says the proposal will not increase on site production. I don't think that's why I asked the question earlier. The TMC, the ordinance that we're dealing with, deals not only with an enlargement of production, it talks about enlargement of use. Storage is a use. So the question is not whether it increases on site production. The issue is whether it increases on site use. And this is an increase of on site use. Then the rest of her memo where she talks about the storage would increase by 37 -1/2 percent or 39 percent, I'm not sure of the mathematics involved, but if we took the 925 tons and divided it by 1400, I think, I'm not sure it really matters much -I end up with a 66 percent increase. So that's not right. I'm not sure of the percentage here. How many tons are they talking about bringing on site? Hernandez: 985 is referenced on page 70. Robertson: So if they're adding 985, the question is how much do they have now? Ekberg: I think there's 350, I'm not sure. Robertson: Well then in that case.... Mullet: That was the reference to 1400, I think. Does somebody have the page that was on? Robertson: It's on page 374. It's hard to flip through these books and look intelligent. It says 985 tons is what they're going to lose. Mullet: On (unclear)..they're asking for 925, and they presently have 1400. Robertson: O.K., on page 37 it says they're asking for approximately 985 tons. So, I'm not sure whether the 37 or the 39 percent, but I'm not sure that is a relevant difference in the discussion. The issue is it's they're talking about adding their 925 or 985 tons of storage in nine tanks, which is an increase. So the point I'm saying is I don't understand your reference in the change between 37 and 39 percent. Mullet: If you take it as a percentage increase, I think you would probably end up with a 60 percent increase, but if you took it as a percent of the total storage that would be on site, you would be back around a 30 -some to 40 percent on site. So the mathematics is back and forth and all over the place, but it's clearly an increase in storage. O V✓c- Rants: Let's move on to Number 3 please. Is the proposal incidental in character? Mullet: This is a more interesting concept, I think. And for me, the answer was it's not incidental. They've had the -I don't understand why -I guess it's speculation as to why the storage is required. Apparently, the buyers don't come in at the -as it's produced, so you have to have an interim storage. But they've obviously been using these tanks for a considerable amount of time. I believe it was 1942. Whether they've been using them for all that time, I'm not sure, but obviously storage is not incidental in the nature of this business. It's an integral part of it. It's absolutely necessary as I see it, or at least they haven't been able to get along without it for almost 50 years. Rants: Any other comments? Robertson: The way I would read that incidental issue is whether it's essentially unimportant, and I clearly think it is a significant increase. It is not a minor change. Bluntly, I'm not sure we would be here if it was. I think it is a significant additional use. Looking for a dictionary, Joe? Duffie: Yea. Do you have one? Robertson: No, I'm curious. What does the word "incidental" mean? Duffle: That's what I wanted. Robertson: Can we reference a dictionary, Mr. Leahy? Mullet: It's not in the record. Robertson: I read Stephanie Arend's comment on paragraph number 32 and without the references to the court cases she's referencing, I haven't any way of understanding what she means. And if I go to section 8 of hers, she's talking about a different part. Duff le: Excuse me just one minute, she's going to read what "incidental" means. Cohen: Of minor, casual, or subordinate nature. Robertson: Thank you. Nine tanks in this case is not minor. It's not subordinate. You have to store the material before -there are storage tanks already on site. And you have to store the material before it can be shipped. It has to be held, I believe, the way I read this, until ships arrive? That's the purpose of these tanks. They were at the Port of Seattle, I assume originally, because that's where they were shipped from, but it seems like it is a major part of producing and delivering the product, is the temporary storage of it. So I don't think it's logical to say that it's incidental. I think it's a significant part. Hernandez: Can someone tell me where there's reference to the number of tanks that are on site currently? Robertson: I don't remember seeing Duffie: You mean the total number of tanks? 12 13 Hernandez: The ones that were originally there. Robertson: There is a reference somewhere because it talks about the height. Hernandez: I read that somewhere. It's at page 71 that it said that the existing tanks on site were 70 feet high. That was on page 71 according to my notes, but I'm not so sure it said how many there were. Robertson: Yea. It doesn't say. But the storage of the tallow is not incidental as defined in the dictionary. It is an important part of the production and marketing of the product. It is a significant use of the site. And that's the whole issue is that this is a non conforming use. Do you want to move on to question number 4? Hernandez: In my opinion it's nine tanks. I don't see how it could be incidental. Rants: Council consensus is a "no" on this one, we move to number 4. Is the proposal in nature of a repair? Duffie: Yes. Robertson: No. There is nothing in the record that indicates it's a repair. It is a they're not saying they're taking out existing tanks or replacing them or repairing them anywhere. It's an addition of nine new tanks. Rants: Is there anybody who disagrees with that? (no response) We move to number 5. Robertson: Looking at paragraph -or looking at page 4 of Stephanie Arend's memo, it says that it appears from the first sentence, Baker does not claim the tanks are a modernization. So I'm assuming that Baker also agrees that this is not a repair or modernization. Duffie: Yea, but if you were to bring in new tanks that were never there in the beginning, it would have to be a repair. They would be repair a new. And they're not new tanks, they're old tanks. So it would be a repair of tanks. Robertson: No, Joe, I think- -are these bringing these nine -is this activity of bringing -this action of bringing nine tanks on, is this in some sense of a repair of something that's already there, and it's not. They're bringing nine tanks on. They're used tanks, but they may repair them before they bring them on. Duffie: Yea, but they already had tanks there. The question is I'm looking at how many tanks they had there before. And now they bring in nine new tanks, so I would look at it -this would be a repair for the old tanks. They're not new tanks, but they're old tanks that they bring in from some place else. Robertson: It's a replacement but not a repair. Duffie: What's the difference between a repair and a replacement? Both of them serve the same purpose. Robertson: I would think what the attorney means here is are they -is this bringing the nine tanks on some way repairing tanks that are on the site. Are they bringing the nine tanks on to repair or fix tanks that are already on site. No they are not. They're bringing these nine tanks on to enlarge the storage on site because they're losing basically, they're losing storage off site so they're going to move it on site is what they're proposing. Port of Seattle has said that they're going to lose their right to store their tallow there, so they're proposing to bring these nine tanks on site. That's not a repair, it's a movement, a replacement for off site storage. But it's not a repair. Duffie: O.K. I would think different, but o.k. Hernandez: In the Environmental Checklist on page 17 it says the tanks will be relocated from the Port of Seattle tank farm, which is closing. It doesn't make any reference to the need to repair the existing tanks that are there, so I don't feel as though that there is any proposed repair of the existing tanks mentioned anywhere in any documents that I've read. Mullet: No, I think the answer to that is clearly not in the nature of a repair. Duffie: Oh. o.k. Rants: Can we move on? Duffle: I'm different. I say yes, but they say no. O.k., so... Rants: O.K. Is the proposal in the nature of a modernization? Mullet: I couldn't find anything to indicate that it was. Robertson: On page 4 of Stephanie Arend's memo she references paragraph number 34. The first sentence there says Baker does not claim that the tanks are a modernization. And I found nothing in the record that in any way indicated that they were a modernization. Rants: O.K. Robertson: There are several references from Terry Leahy. On page 251 and on 103. On page 103 it says the same thing just differently that Joan just said. That it is indeed proposals to relocate some tanks. It says real simply on page 103 "the proposed tanks are currently owned by Baker Commodities and would be removed from their existing location at the Port of Seattle tank farm. Tank relocation is required due to closing of the tank farm That's real clear. It doesn't say anything at all about a modernization. And in his reference on page 251, there it's a memo to Mayor Rants from Rick Beeler, dated September 21st, and it talks about the previous changes that were allowed and how that this is a different change. That they were basically allowed in this memo it states by the city, to reduce the level of non conformity. So in that sense you could say that they were a modernization of a laboratory building to a modernizing solid air filtration system for reducing odor emissions to upgrade the air filtration system. And it says "these improvements were to reduce the level of non conformity as permitted In the 18.70.040 it doesn't -but this one here, no where does it say and no where could I find a record or reference by Baker saying that -or anybody else -that this was to reduce non conformity or to modernize the plant. It's merely to relocate storage. 14 Rants: Are you ready for six? Is the proposal one which carries out a feature of a plant design which pre- existed the zoning change? I think that's pretty straightforward. 15 Robertson: Well we discussed that earlier when we talked about the first one. We couldn't find any record anywhere. Did any other Councilmembers find any record that indicated that putting nine more tanks such as this was ever part of the original plan? Councilmember Allan Ekberg: No, in fact, contrary to that it established the fact that the holding tank or the depression, the concrete depression was in the existing facility utilized to cleanse by- products. Therefore, modernization to replace that and now that would be ...(unclear)... Rants: Is there any disagreement on the Council? (no response) Move on to seven. What are the characteristics of the present non conforming use which cause off site impacts? Robertson: Obviously, there are several. The most noticeable one is the odor. And there is in the record references, many references, to the odor that's generating. Mullet: And a question revolves around whether, to me, whether the storage of the tallow is an integral part of the ..(unclear)..of the manufacturing that produces the odor. The storage may not produce much odor. It's a part of that process. To make tallow you have to have a place to store it. Robertson: It would seem to me especially if you ship it via ships that come in irregular. You have to store it for a while, and you probably produce it relatively continuously, and then you have to store it before you ship it. But, clearly one of the impacts is the odor. The second impact is traffic. In the presentation tonight by Stephanie Arend she said that there was no increase in the number of truck trips. I found that not to be true by the record. That indeed on 457- -her argument was that moving the tanks on site didn't change the number of trucks that you would be leaving the production facility. I'm not trying to follow the argument, but looking at the record, that got lost in the argument,.... Mullet: There was a definite reference to one or two additional trips per week by Mr. Henry..(unclear). Hernandez: While you're looking, can I make reference to a few things? Mullet: I think that was page 456, Dennis. Robertson: On page 457 Bill Hammond -an increase of truck traffic would be an additional one or two trucks per week. And Vern Meryhew asked, "an increase over and above the current traffic." Scott Clark asked, "what is the current traffic Bill Hammond, "we do three a day Jerry Knudtsen asked again, "but you're talking about one or two truck trips per week increase Bill Hammond, "yes So it seems to me in looking at the record it's clear that there is an increase in truck traffic by the record that would be caused by the relocation of these tanks onto the property. Rants: I guess you'd have to ask yourself the question though is one or two trips a week an off site impact. (76 16 Robertson: Yes. And I'm prepared to discuss that in a moment, but.... Mullet: This brings up another issue which was mentioned tonight and I have to dig deeper again, but it was my understanding when we first heard the testimony, we'll have to see if we can substantiate it in the fact, that when this storage would occur on site that Baker's trucks would no longer be taking if off to Tacoma. Now if that's not true, then that was my understanding from the first testimony. There was some indication here tonight by Baker's attorney that they would still be controlling some of those trucks. And that's a big issue, because their three trips a week that they were using their trucks in a regular schedule, they could very easily control because they were merely going from their storage tanks to the Port's storage tanks. But now it was my understanding, have now become three plus per day to 15 with maybe one or two more which might be 17 or 18 per week, 16 or 17 per week which would not be their trucks anymore. This represents a significant loss of control of the operation. And that's a lot of trucks per year. You're not just talking an additional one or two trucks a week now. We're talking if all the trucks are coming to their plant then if they're not their trucks anymore they're going to Tacoma, and that's an issue that I thought I was clear on before and I'm not so clear on in fact now. So if anybody can help me out, I would appreciate it for clarification. Robertson: On page 478 Jerry Knudtsen says, "I'm not in favor of Saturdays, but after listening to arguments, it basically depends on the shipping It's a whole different transportation system than normal trucking on a highway. So if the ships are in on Wednesday and it takes four days to load up the 650 tons, I assume, or how ever many tons they ship out or whatever, I guess after listening to his argument, there might be some merit to what they have to say. I think the issue is twofold. Off site shipping is coming to the plant instead of their truckers and when the tanks were located in Seattle, if they went in and got them since that's an industrial area and they don't drive through residential areas, and I'll get back to that point, then the impact of doing it on a Saturday didn't matter. But now we're talking about moving these tanks from which they load the ships onto the site. So we're now talking about adding Saturday as a day that truck traffic may come. Wally, I'd like to deal with the question of whether adding several trucks per day and when they -or per week -and when they occur is an impact. And I think ultimately that's somewhat of a subjective call, but you look at the risk in where the impact is at. We're talking about trucks on a narrow street that we don't have control over. They drive basically on a residential street on occasion. And there's multiple testimony in the record about the truck travelling through residential areas. I think if we look on 469 there's ...(unclear).. And the difference if it was one or two a day or week in an industrial part of the City we wouldn't even notice it. However, if it was my neighborhood or your neighborhood or anybody's residential neighborhood, we're talking about these trucks driving through it then, that's quite a problem. And we have at times where it worked out, closed off residential streets and put signs up saying the truck traffic couldn't go through it because of the impact of a few trucks a day on the residential areas. Hernandez: I'm concerned about just some of the discrepancies and some of the minutes and things that we have. And the Planning Commission minutes of April 23rd in response to a question about the traffic, there was a response from Mr. Hammond that the truck traffic will increase approximately two to three trucks per week. You're right. We have to ask is that significant, but if you multiply that times four for a month and 12 for a year, to me that's getting up there but then I'm concerned then because then the same response on another Planning Commission minutes, it's on page 335, but it doesn't have a date at the top. I would have to trace that back to see what date that was, but the response there was that there would be no additional increase. Robertson: On page 469 Joanne McManus testified and this is verbatim, 5619 So. 133rd, she said, "56th is the street that runs clear down Foster Point. Some of these large trucks are using that street when they are hauling. Now these are doubles, they've got the big trailer behind them, they are huge. They shake our houses. The streets down there, if any of you would like to come down and look and I've been down there in the past as I suspect all of us have at one time or another, and it is a narrow street, "are just little narrow, very narrow. If you're out for a walk, cars have to go over into the other lane to pass you if you cannot get off the road, which you can't in a lot of places. And they come from 124th underneath the freeway. There is a one -way road there. Any oncoming traffic has to stop and wait if they can see them in time. It is not safe. The trucks have hit animals and several of my neighbors have lost pets. These big trucks are breaking our cement. My sidewalks, my driveway are all splitting and shifting So we're talking about a narrow, residential street being used for trucking. So I think in that sense, the addition of several, especially the possibility that they'll run on Saturday is a significant impact. Hernandez: I would think one of the other things that we need to consider and I've read that somewhere here but I can't refer to it right now, but it's not just the number of trucks, it's the fact that some of them have trailers and we need to consider the tonnage and the capacity that that contributes to residential streets and the difficulty of maneuvering a large truck with a trailer on the end of it on those very narrow residential streets. In fact, I think one of the access streets is actually a one -way street. So, to me, that would be a significant impact. Rants: Alright. Are there any other impacts the Council wants to address? Robertson: There have been spills. I'm talking about the trucks. I guess -on age 241 it is a memo to MR. Beeler from Vernon Umetsu, and it says, it's dated 8/28/92, "talked with Ted Freemire who is the manager in City maintenance, who wasn't surprised at our concern over Baker road spills. He related the following information. Road crews have been called out to clean up spills from carcass transport trucks about once per year. These spills make the roads very slick and hazardous to drive on as well as being smelly. These spills were after hours and needed cleaning up before morning traffic started and was after Baker closed So it appears there was even before these nine tanks might be moved truck traffic in other than normal business hours. And it goes on to say, "this year has been unusually bad with three or four calls to date Now this is animal parts not tallow, but it does indicate that the trucks are a problem and that they're not totally under control and that they are still going through residential areas at times. Rants: Any further impacts? Ekberg: That same information is relevant on page 352 where in a letter from Rick Beeler to John McFarland states that "Item 2a resident testimony and public information hearing and full interviews ..(unclear)..maintenance crew, July 28, 1992, ..(unclear) indicates that Baker responds reasonably well within 15 minutes to a clean up spill..(unclear). But they do not have the capacity ...(unclear)..to respond to mid size or larger spills...(unclear)... So that just emphasizes ..(unclear). Rants: O.K., Joan? 17 18 Hernandez: I remember reading somewhere, too, of the discussion regarding the necessity of the truck traffic on a Saturday, and this would be a concern to me in a residential area with children at play and out of school. So I believe that that's also an adverse impact. I can't really cite the page unless you give me some time to find it, but I do recall reading that somewhere and the discussion. Rants: O.K. Are you ready to move on to Number 8? Robertson: O.K. On summarizing I think it's clear that the present non conforming use causes outside impacts of specifically odors and off the record the odor is on the golf course, but odors in the neighborhood and truck traffic. And Number 8 is a proposal, one which will have a net effect of reducing off site impacts. There's no way. It doesn't reduce them at all. In fact, it appears to increase them. Especially truck traffic on through the site, by the testimony in the record and both the number goes up and the time would occur more often on Saturday. And as Steve Mullet mentioned, there seems to be an increase -or decrease in the control over the drivers and where they go and the roads they take. Rants: Alright. Number 9. Which geographic areas are affected by the present operation of the non conforming use? Robertson: The reference from Stephanie Arend that the Duwamish River's at least 180 feet wide next to the site. And then she says in reference to page 416 is two comments by a Councilmember which is not evidence. It is true I said when we were discussing this previously and coming to the original conclusion, that the river was approximately 50 feet wide at that point. I was thinking in terms of the water, and I'm not sure whether 50 feet wide is appropriate, but I'm very certain that the river is not 180 feet wide. But the real issue and the point that was being made there was that on three sides, this site is bounded by the river. And in the original testimony given by Baker Commodities, they implied that there was M -1 zoning on one side and the river on three other sides, so the off site impacts didn't matter. Well that implied that the river in some way mitigated, screened, prevented off site impacts. Well, the river -and the point I was trying to make whether or not the river is 50 or 180 feet wide, is that it doesn't prevent odor, it certainly isn't wide enough. I think I made some comment to the fact that if it was the Columbia River it would make a difference. The point I was trying to make was that the Green River simply is not wide enough to prevent the impacts of off site odors. And on the other side of the fairly narrow river, on the biggest portion of it, is the golf course which is certainly not a compatible use with something that produces obnoxious odors. So, the point I think there is that the geographic areas. I mean there is a fairly large geographic area that on at least three sides of this use that is impacted, indeed, by it. Mullet: There's also a considerable impact on the access in and out which is shared by the public which lives by the -the residents which live down there. No matter which road you use, those trucks are sharing the road with all the residents, and I would suspect there's far more residents driving on those roads than there are trucks. It's a very narrow road that goes under a one -way bridge ..(unclear).. it's also an impact of the use of..(unclear). Robertson: Also, on page 353 in a letter to John McFarland from Rick Beeler, dated September 9th, 1992, 353 Section C is says, "staff discussions with residents and resident managers in the western Sky area above and north of Baker which is on -away from the river, "demonstrates that there are definite strong odor impacts on units located due north along a ridge on an average twice per week basis And it 19 says, "this is reduced to a once per week basis northeast of the Baker plant across Empire Way And it says, "no impacts were noted by managers north of 129th Street I think it depends on the way the wind blows, and since we tend to have a wind from the southwest, that's the basis for that. But it does indicate that there are impacts on areas around, in the geography around the site. Hernandez: Attachment B, page 111 shows the surrounding land use patterns. Contained within the document, I've read testimony from people using the Foster Golf Course and from people living in the single family zoned residences north of the site, and also from citizens living in residential areas west of the site. Rants: You're speaking of Number 10 now? About geographic areas? Hernandez: Yes. Rants: And what current uses exist in these geographic areas? Hernandez: Yes. Rants: Any other comments on Number 10? Robertson:..I would say sometimes off site impacts are limited to people who are physically adjacent, immediately adjacent to a use. In this case because of both the trucking and the odor, the off site impacts are not limited to something that's physically adjacent to the property. And I was thinking of the addition of the tallow tanks may not necessarily cause the same kind of off site spills that you get from the trucks carrying carcasses, but the actual non conforming use itself on this site does have spills as the record showed earlier of trucks carrying carcasses and going through a residential area. That's a fairly significant off site impact. Rants: I'd like to get everybody on the same number here. I don't know now if you're addressing Number 9 and she just addressed Number 10, which one we... Hernandez: I'm sorry we're overlapping here, but I think that my comments.... Rants: We're overlapping quite a bit, but Number 10 says what current uses exist in these geographic areas. What current uses exist. Robertson: Oh, O.k. I was thinking the current use of the facility. The current uses- Joan stated that very clearly. Rants: That's right. Are you ready to go to Number 11 then? (Council indicated agreement) What uses are planned for the future within these geographic areas affected by the present operation of the non conforming use? Robertson: Well, I think there's a -well I've got to go to the record, but there's no the golf course is still... Mullet: I don't know if there was anything in the record that addressed the future. Robertson: I didn't see anything. Rants: I don't believe it's a problem if you don't answer everyone of these. 0 70 Robertson: There's nothing in the record that indicates a change in use that would not be impacted, or does that count? Rants: O.K. Mullet: And nothing can work both ways. Rants: Number 12. Will the addition of the tanks cause a change in the nature of transportation associated with the operation of the non conforming use? Hernandez: I think we addressed that under some of the adverse impacts. Do we need to repeat those? Robertson: It increases the number of trips, right? Rants: Yes, but will it change the nature of transportation? Robertson: Yes. The number of trips -the biggest change is the change from instead of driving the tallow to the storage tanks in the Port of Seattle at the convenience of Baker Commodities, that tallow will be now moved at the convenience or based on the schedule of a ship arriving at the Port of Tacoma. I think that's a significant use. For one thing, as we testified earlier, that changes the use to cover Saturdays. Rants: I think what you're speaking of more specifically addresses Number 13. Robertson: No. Rants: You don't think it addresses Number 13? Robertson: No, I think it does. I'm not sure what the difference is now. Rants: One is taking delivery of tallow from the site. How will that change the nature. And the other is what is the change in the nature of transportation. Maybe I'm too basic on that as seeing it just as trucks. Hernandez: I can refer again to page 297 and its Planning Commission minutes, April 23rd, and it says that the truck traffic will increase by approximately two to three trucks per week. Rants: That again addresses Number 13. Robertson: Well it does -if we look at the question the way Mr. Leahy was -12, which was the nature of transportation was his 41, and he basically in 41 dealt with the number, O.K. The first part. Then he went on to discuss traffic patterns changing because the ships would be picking it up. I think 41 and 42 are the same question. Rants: Yes. Twelve and 13. 20 Rants: If we look at page 223, which is notes on the rendering public works information meeting that occurred- -the memo is dated August 18th, 1992, from Vernon Umetsu to John McFarland. On point 7 he says, several residents noted occasional truck traffic down 56th. Baker stated their trucks don't use it unless there's a rare occasion of construction on 130th. Their drivers sign an agreement not to drive down 56th upon hiring with violation being a basis for firing. It goes on to 017( 21 say though that Baker cannot guarantee independent hauler traffic. They will remind haulers not to use 56th. But the question is I think this increases the number of independent haulers coming onto the site and it also changes the urgency of their business since their servicing a ship instead of just hauling to an intermediate storage site. Rants: Anymore comments on 13? Will move to 14.. Will the addition of the tanks cause a change in the risk of adverse impacts from operation of the non conforming use. Robertson: I think what we just said covers that. It changes the... Rants: We're answering some of the same questions with... Robertson: Yea. The independent haulers you'll have them going on Saturdays and they'll be trucking directly from the on site storage tanks to the ship. Rants: Right. Shall we move to 15 then? How have staff and city attorney interpreted and applied the ordinance to this application? Robertson: I think from some of the other things we said earlier from the start staff expressed this as an expansion, as an addition of nine tanks, an expansion of the existing use. Rants: I believe staff has consistently been this way. And the city attorney. Robertson: I think what I remember and what's in the record here is that when it went to the planning commission, staff was taking the position that there was very little impact from the use of -from the current non conforming use. And then when it came to the Council, people as they often do speak at Council public hearings, and said indeed there was an impact. And we got into it further. But staff is staff and makes recommendations to the Council, same as they do the Planning Commission. And then recommendations to the council, it is that this is a increase in a nonconforming use. Also, page 329... Hernandez: On page 251 I believe there was a comment that the tallow tanks are the first improvements which are not focused on reducing the level of non conformity and on 253 -I'm reading from my notes so I have to go -on 251 it's a memo from the Director of the Department of Community Development and in the body of the letter it says that the tallow tanks are the first improvements which are not focused on reducing the level of non conformity. Rants: Alright. Robertson: In the Planning Commission public hearing it started to become apparent by some of the testimony there that there was an impact from the current use and opposition to this from the people that live in the area. Rants: Any other comments on 15? We move to 16. Hernandez: I could come up with more, I just don't have all my notes here. O'7 Rants: Well, we'll come back. Are you ready to go to 16? We'll come back to 15 if you wish. Do those who object to the proposal live or work in the geographic areas affected by the present operation of the non conforming use? Mullet: I would say the residents did. Rants: Well, the record shows that. Mullet: The record shows the residents live in that geographic area. Rants: They use the words live or work. Nobody addressed the words "play" in that area. Leahy: If you're asking whether that would be appropriate to consider "play" in light of the golf course, my answer would be yes. Rants: I don't know that the record reflects that. Leahy: I don't know whether it does or it doesn't, but it would be appropriate to consider "play Rants: Yes. O.K. Mullet: There's several studies done from the golf course that show odors. Now, again, whether you can separate this storage of tallow from the non classified use of making tallow, I guess, or rendering, anything to put it all together, then it's definitely some... Rants: Do you have a consistent answer for 16? Everyone satisfied? Hernandez: I would read a reference if I could find it. I know I've read it many times. There is a reference from a business person here who was very concerned about it, too. Rants: We'll move to 17 then. Did the applicant introduce any evidence bearing on the costs associated with the proposal? Robertson: I didn't see any, and in Stephanie Arend's memo that we received tonight, she just says irrelevant. Alternative siting analysis performed pursuant to RCW 43.21.030. In any case from what I can find, the answer is no. I could find nothing in the record. I'd like to go back and talk about... Duffle: O.K., but let's finish 17 first. Mullet: I couldn't find any reference to cost. Duffie: Yea. I had no on number 17. But let's make sure we have a consensus before we move back to 15. Rants: Is there anyone that has any issue they wish to bring up, add to, augment, if so, let's do it now and we'll have the factual inquiries completed. Robertson: Well, I'd like to reference that on page 352, dealing with question number 15, how staff and city attorney interpreted and applied the ordinance to this Y73 22 23 application. That's dated September 9, 1992, and entitled, Revised Planning Division's Findings. Conclusions. and Recommendations for Baker Tallow Tanks. In the findings is says, basically, "the following findings supplement and modify those presented by the Planning Division at public hearings before the Planning Commission and City Council. Significant changes in Planning Division findings revolve around the nuisance odor impacts of transporting material to the site and processing operations which is that at the public hearings they started hearing and then they went further. They found out that there really is a nuisance, a continuing nuisance, with the plant today. It said "One. An actionable violation of odor standards has been established by the Puget Sound Air Pollution Control Agency And then Item Two, "residents in Tukwila street maintenance staff report that trucks hauling carcasses and (unclear) occasionally spill materials, omit definite identifiable odors, and have body parts protruding above container walls The conclusions..(unclear)..Baker on page 354, "Baker has made significant reduction in plant odors since they took over the Seattle Rendering Works in 1985; however, this is an inherently smelly operation in which small problems can cause significant odor impacts which is true. I don't think anybody contests that. "And where moderate problems quickly annoy residents and corporate citizens and essentially interfere with their comfortable enjoyment of life and property And it said, "Point two: there is sufficient testimony in the evidence to demonstrate that Baker plant operations generate nuisance levels of odors Recommendation on page 355 is "based upon the information presented to the City Council as herein revised the Planning Division staff continues to conclude the addition of tallow tanks in and of themselves do not increase the level of nuisance activities; however, the tanks are functionally linked with and enhance the basic non conforming activity. Thus they cannot be considered as a separate element. Therefore the proposed tallow tanks should not be allowed since they would be an expansion of a non conforming use per conclusion So, I think staff's position is clear at this point in time that this is a non conforming use that in its current location as a non conforming use has an impact to the surrounding businesses, uses, and residences. Because of that they recommended not to allow it to be enlarged. Rants: Are there any other comments? How would you like to proceed then from the facts to the conclusions? Cohen: I'd like to suggest that we quickly go through the 17 and vote on each of the 17 for entry of a conclusion and then we can go ahead and prepare Findings and Conclusions that reflect what Council decides. Rants: Then I can put these in front of you. Number 1, you had a "yes All in favor say "aye" (unanimous response; those opposed no response). Number 2, you have a "yes all in favor say "aye�' (unanimous response); those opposed (no response). Number 3, you had a "no". All in favor say a (unanimous response); those opposed (no response). Number 4 was a "no"; all in favor say "aye" (Hernandez, Robertson, Ekberg, Mullet); those opposed (Joe Duffle). Number 5 was a "no All in favor say "aye" (unanimous response); those opposed (no response). Number 6 was a "no All in favor say "aye" (unanimous response); those opposed (no response). Are you forgetting what we did there? I'm getting weaker and weaker votes here. Number 7, I wrote down three things: trucks, spills, odors. Those were the three issues you brought up. All in favor say "aye" (unanimous response); those opposed (no response). Number 8 was a "no All in favor say "aye" (unanimous response); those opposed (no response). Thank you you're getting stronger. Number 9 was what geographic areas. Seemed to me the consensus as you talked was going east -west. Do you want it stated that way? Hernandez: Let's see, the golf course would be to the south, so I think we mentioned that also. Robertson: I think it's all areas. Duffle: I've got all areas affected. Rants: You want to do it all? Alright. Be sure that we have consistency here then. All in favor say "aye" (unanimous response); those opposed (no response). Number 10, what current uses exist in this? The uses were -you had... Mullet: Recreational and residential. Rants: I put down zoning R -1, RA which the golf course is, recreational and residential were the existing current uses around that geographic area. Is there any addition to that RA or R-1? All in favor say "aye" (unanimous response); those opposed (no response). I didn't have answers for 11, 12, 13, or 14. I just had a "yes" for all four of those lumped together. Duffle: That's what I did. Robertson: Yes, and we discussed them earlier saying that.... Rants: All in favor of "yes" on that say "aye" (unanimous response); those opposed (no response). Hernandez: "Yes" doesn't really lend itself to the answer for 11. Rants: Well, it says will, will, and will, so on 12, 13, and 14 it does. Not as much on 11, does it? Mullet: Eleven would be just the same as what's there now. Robertson: Yea. There's nothing in the record that indicated there would be any different uses. 24 Rants: O.K. So, let the record show that 12, 13, and 14 the Council voted "yes" on. Fifteen was a statement by the Council, "yes" you believe it has been consistent. Robertson: It is consistent at this point. Both the city attorney and staff have recommended to the Council that we deny this, that this is an enlargement, and that there is an impact from the current non conforming use, that we deny it for those reasons. Rants: Alright. Do we have agreement on the Council for that statement? All in favor say "aye" (unanimous response); those opposed (no response). Number 16. We had a "yes" on this one. All in favor say "aye" (unanimous response); those opposed (no response). And number 17. A "no" on that one. All in favor say "aye" (unanimous response); those opposed (no response). Alright, we have that, City Attorney? Robertson: I'd say one more thing...(unclear)...when we've dealt with this before and voted on it, and we did vote on the fact that this was an enlargement issue, be denied for that reason. We didn't go through any of this type of detailed discussion to the record because on the surface it seems very clear, at least until we went through this, that when you look at is this an enlargement, it is clearly an enlargement of the use. They're adding nine tanks that were not there before, were not planned there before, were not planned to be there before, and they're moving them in. On the surface that's clearly an enlargement, and that's why I voted in the past that this was an enlargement of a non conforming use and therefore should be denied. I think going through all of the factual inquiries helped to further convince me that our original position was correct. I don't know what else to say. Mullet: I basically second that, Dennis. I was very surprised at..(unclear), and possibly because we haven't gone through a lot of these, or I hadn't at that point in time, but.... Rants: You have 11 conclusions in front of you findings, pardon me. Robertson: I guess I would make a motion that the Council and the City concludes the addition of the storage tanks represents an enlargement, and increase, or an extension of the type prohibited by TMC 18.70.010 and that the City therefore deny the application. Hernandez: I'll second the motion. Rants: It's been moved and seconded. Discussion? 25 Hernandez: I just felt like that structures that weren't originally on the site, that are moved to the site, appear to me to be an enlargement and to me that's the issue here, that they weren't there when the conditional use permit was granted or in the original plan, so to add them now at this point seems to me to be an enlargement of a non- conforming use. Rants: Anyone else wish to comment? Robertson: ..with Joan and there is indication that that would change the traffic pattern, the trucking pattern. And that change in no way can be considered positive for something that would reduce the negative impacts of the existing non conforming use. There is indication in the record that it would make it worse. So not only would this be an increase in the use of the current non conforming use, it would not make it less objectionable for the surrounding neighborhood, it would make it worse, based upon the record. Rants: Any other discussion? Mullet: For the record, yes, it seems to me there's definitely an enlargement and an increase, that these tanks are relocated from off site to on site. While Baker may look at their overall activity and find no increase, Tukwila's not concerned with their overall activity, but with the activity on the site in Tukwila. And I definitely think that this constitutes and enlargement and an increase. Rants: Mr. Ekberg? Ekberg: I think the record based on the findings we've just completed, speak for themselves. More so specifically that the opponent referencing an increase in on site tallow tanks in the record for Environmental Checklist. They, themselves, have seen evidence of increase in storage of the tallow tanks on that facility on that site. Rants: Anyone else? I have a motion on the table to deny the application. All in favor say "aye" (unanimous response); those opposed (no response). The application is denied. Can we have a five minute break? Duffle: I move we have a five minute break. Robertson: Second. Rants: Moved and seconded for a five minute break. All in favor say "aye" (unanimous response); those opposed (no response). 26