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HomeMy WebLinkAbout1990-02-20 Regular MinutesTUKWILA CITY COUNCIL February 20, 1990 Tukwila City Hall 7:00 p.m. Council Chambers Regular Meeting MINUTES ir CALL TO ORDER Mayor VanDusen called the Regular Meeting of the Tukwila City Council to order and led the audience in the Pledge of Allegiance. ROLL CALL JOE H. DUFFIE; DENNIS ROBERTSON, JOAN HERNANDEZ, Council President; CLARENCE MORIWAKI; ALLAN EKBERG, STEVE LAWRENCE, JOHN RANTS. OFFICIALS JOHN COLGROVE, City Attorney; MAXINE ANDERSON, City Clerk; RICK BEELER, Director, Department of Community Development; ROSS EARNST, Public Works Director; RON WALDNER, Chief of Police. CITIZEN COMMENTS Resident Anna Bernhardt asked for Council's opinion on the Cascade View annexation if those citizens vote not to accept the bonded indebtedness of the City. She stated that she objects to the annexation without the acceptance of indebtedness. Councilman Lawrence responded that the bonded indebtedness will be a separate ballot issue. The Cascade View residents may vote to become part of Tukwila but not to accept the bonded indebtedness. He stated that he is in favor of having the Cascade View area join Tukwila hopes the residents will vote to accept both issues. Attorney Colgrove clarified that if the bonded indebtedness issue does not pass, the Council will vote again and have the option to accept or reject the annexation. A.L. McDonald, 4246 So. 146th, stated that he had distributed an article in area mailboxes regarding recycling plastic containers from fast food restaurants and is interested in the City's future in recycling. Councilman Duffle commented that the Utilities Committee will be addressing this issue at their next meeting and invited Mr. McDonald to attend. CONSENT AGENDA a. Approval of Minutes: 2/05/90 Regular Meetings b. Approval of Vouchers General Fund $99,486.61 City Street 21,000.36 Arterial Street 1,228.55 Land Acq., Building, Dev. 131,474.67 Water Fund 5,099.96 Sewer Fund 68,657.86 Water /Sewer Construction 285,408.26 Foster Golf Course 1,808.34 Surface Water (412) 5,825.56 Equipment Rental 7,432.38 Firemen's Pension 967.48 TOTAL $628,390.03 MOVED BY DUFFIE, SECONDED BY ROBERTSON, THAT THE CONSENT AGENDA BE APPROVED AS SUBMI'1"1'ED.* Councilman Rants requested that item 5d be withdrawn and discussed under item 7b. *MOTION CARRIED. Regular Council Minutes February 20, 1990 Page 2 PUBLIC HEARINGS Appeal of Business License Denial Dandy's, 14406 Pacific Hwy So. Mayor VanDusen outlined the procedures to be followed during the public hearings. He noted that the guidelines are printed on the back of the agendas. At 7:17 p.m. Mayor VanDusen opened the public hearing on the appeal of a business license denial for Dandy's, located at 14406 Pacific Highway South. The appellants were granted a continuance at the Regular Council meeting on February 5, 1990. Jack Burns, 500 108th Ave. NE, representing the applicants, Walt and Teresa Szafryk, distributed copies of a letter outlining their arguments. He stated that the Szafryk's purchased Dandy's in 1986 and have done extensive remodeling to the premises. They have a substantial investment in the business. Prior to annexation of the area in 1989, Dandy's was a lawful business in King County. Mr. Burns outlined reasons he feels the licensing committee's decision should be reversed: (1) The section of TMC5.08.040 that limits the location of a cabaret within 500 feet of a playground or park or any elementary or high school should be considered a zoning regulation; (2) The Szafryk's business is a legal nonconforming use by reason of TMC 18.70.040. The enforcement of Section 5.08.040 should be subject to the rules concerning nonconforming uses absent a provision which should require the payment of just compensation as a consequence of the inverse condemnation resulting from immediate termination of an existing use; (3) Regarding the licensing code, the Szafryks feel that the term "playground" must be understood to mean a public playground not a private playground as the backyard of an residence could be considered a playground; (4) Regarding Chapter 5.08, there is no substantial governmental interest which is served by restricting the location of a cabaret. The zoning code does not prohibit taverns, hotels, restaurants, or other places of public resort open for public food service from locating within 500 feet of a "playground It also does not prohibit places providing theatrical performances, exhibitions, shows, exhibition dances, dancing, vaudeville performances, or music from locating within 500 feet of a "playground Mr. Burns presented photographs which showed the growth and fences that are located between the business and the private playground. There is a high six foot barbed wire fence around the property that creates a barrier and prevents anyone from going either direction; (5) Dance entertainment is protected by the free speech and press guarantees of the First Amendment. In conclusion, Mrs. Burns requested that the Council reconsider the Licensing Committee's recommendation to deny a business license to Dandy's. Chief of Police Ron Waldner stated that the Police Department conducted an investigation as per Tukwila Municipal Code to determine if the business complies with the City ordinances. At the completion of the police investigation, the Licensing Committee met, and based upon the findings of that investigation and in compliance with the City's ordinance 5.08.040 which states: "No cabaret license shall be granted to any person when such place of business is located within five hundred feet of any playground or park, or any elementary or high school or the grounds thereof', the license was denied. Chief Waldner stated that the measured distance from the business establishment to the playground is 288 feet. The playground belongs to a private development; however, it is a well established fenced play area for children with the appropriate equipment. The recommendation of the Licensing Committee was clear enforcement of the language of our existing ordinance. In response to Mr. Burns, Chief Waldner explained that the denial of the license was done under the cabaret. It had nothing to do with the adult cabaret which gets into a zoning issue. It is not uncommon for communities to identify businesses, whether cabaret or associated with alcohol abuse, to have restrictive rules as to their location. Regular Council Minutes February 20, 1990 Page 3 Rebuttal Mr. Burns Rebuttal Chief Waldner Public Hearing (con't) They are normally restricted in terms of schools, parks, places where children gather, churches, and residential communities. It is also not uncommon to see language in ordinances of 500 feet or 1,000 feet. Councils do pass action to restrict certain businesses, not prohibit them from functioning, but restrict them in certain areas within the community where the concern about impacts, exposures, quality of life issues, whatever influence that location can have on those things such as children in play areas. Chief Waldner feels that the issue here is the enforcement of an ordinance that deals with a distance restriction. This is not a free speech issue. The City is not restricting this type of business. It is only exercising, as representatives of the citizens, the decision as to how close they want this type of business to be to kids, schools, residences, churches, and the like. In this case we have an application for a cabaret business that is also alcohol based. There is an applicable City ordinance that is in violation if the business was to exist there; therefore, the recommendation by the Licensing Committee to deny the license. Councilman Lawrence asked if there had been any legal problems at the business when they were a part of King County prior to annexation to Tukwila. Chief Waldner responded that they had checked with King County and were told that the business complied with the appropriate laws and the restrictive laws associated with a liquor license. Councilman Lawrence requested information from King County be obtained regarding a playground provision in their ordinance. Attorney Colgrove commented that we need to find out the merit to the argument that this is a zoning regulation rather than a licensing regulation. According to the attorney, if this is a valid licensing regulation, it is not subject to the same grandfathering provisions that apply to zoning ordinances. He will research the matter. Council agreed with Councilman Robertson's recommendation that a rebuttal period and citizens' comments be heard tonight, and if both sides needed the public hearing to be continued, a rebuttal period be held at that time also. Mr. Burns clarified that Dandy's is located within 500 feet of a private playground. The question is what purpose does that regulation serve and is it archaic. The regulation prohibits any place that sells food and provides entertainment from being within 500 feet of a playground. The applicant's business does sell alcohol; however, if this were a McDonald's and they brought in a clown for entertainment, it would be prohibited because the business is within 500 feet of a private playground. With respect to the burden of proof, Mr. Burns stated that his understanding of the law in cases where first amendment interests are concerned and there is a regulation that restricts those rights, the burden is on the governmental entity to prove the necessity for the regulation. Attorney Colgrove commented that this is not a first amendment case in terms of adult entertainment Chief Waldner observed that we are suddenly questioning the validity and constitutionality and first amendment right application of this ordinance. That is not the issue before us. The issue is whether Dandy's complies with the existing ordinance and whether the business is within 500 feet of any playground. Mr. Burns has not disputed that they are within 500 feet of an established, used playground. The business clearly does not comply with the ordinance. If there is a constitutional issue at all, it is for a court to take action on. Citizen Comments Anna Bernhardt, resident, noted that quite often children play outside after 6 p.m. Regular Council Minutes February 20, 1990 Page 4 Public Hearing (con't) A.L. MacDonald, resident, commented that as a precinct committeeman, he has not had anyone voice their objections to the business. Mayor VanDusen read a letter from Clarence C. Carter, Jr. and Pam Carter, 4115 So. 139th Street, in which they request that Council deny granting a license to Dandy's. MOVED BY ROBERTSON, SECONDED BY HERNANDEZ, THAT THIS PUBLIC HEARING BE CONTINUED TO THE NEXT REGULAR MEETING.* Councilman Moriwaki stated that this is a licensing issue only. We are dealing with the appeal of a license. The issues addressed by Mr. Burns help to strengthen their arguments; however, they do not address the licensing issue per se. Councilman Duffie concurred with Councilman Moriwaki and moved to deny the motion. Councilman Rants noted that if there is an ordinance in effect, Council must uphold the ordinance. It is up to the legal system to prove the ordinance inaccurate. Councilman Robertson commented that he does not disagree with the fact that this is a licensing issue; however, he feels that continuing the hearing for two weeks will allow time for the City Attorney to research the topic and present his opinions. Before taking the steps to deny the license or grant the appeal, all issues should be covered adequately. Councilman Lawrence concurred and noted that several points were raised that the ordinance may not adequately address. Speaking against the motion, Councilman Ekberg stated that the issue before the Council is a legislative issue. Our commitment to the citizenry is to uphold the ordinance and its intent or do something to change the ordinance. Councilman Lawrence suggested that Council should look into whether the current ordinance addresses the issues that it appears to address on the surface. Noting that she is in agreement with the motion, Council President Hernandez commented that she would like to have as much information as possible prior to making a decision on the issue. Councilman Duffie requested a roll call vote on the motion. DUFFIE NO ROBERTSON YES HERNANDEZ YES MORIWAKI NO EKBERG NO LAWRENCE YES RANTS YES *MOTION CARRIED. THE PUBLIC HEARING IS CONTINUED TO THE NEXT REGULAR MEETING. MOVED BY DUFFIE, SECONDED BY LAWRENCE, THAT THE CONTINUANCE OF THE PUBLIC HEARING BE MOVED TO MARCH 12, 1990. MOTION CARRIED. Mayor VanDusen clarified that the City Attorney will respond point by point to the items raised in Mr. Burns' letter and research the King County ordinance. Testimony will be allowed at the March 12 continuance. Mayor VanDusen closed the public hearing at 8:10 p.m. Regular Council Minutes February 20, 1990 Page 5 Request for Waiver of Ordinance #1544 Jeff and Melodie Shaver Request for Waiver to Ordinance #1544 Craig Hittle Jeff Shaver, 4437 So. 156th Street, addressed the Council on his request for a waiver to the moratorium so that a building permit may be processed. Mr. Shaver proposes to construct a single- family residence for his family's occupancy on a single family zoned lot. Prior to the purchase, the property was a double residential lot with a single family dwelling on it. A lot line adjustment was made creating the Shaver's property. The overlay map showing sensitive areas touches on a portion of the lot. The only type of sensitive area involved is the fact that there is a slope slightly larger that 15 percent. That area of the lot is an orchard which he intends to keep to stabilize the slope. Mr. Shaver plans to build a house on the flat, southern portion of the lot. Mr. Shaver commented that there is a hardship involved in that waiting until after the moratorium expired would delay both the development and the selling of their current residence approximately three months. The Shaver's are a single income family and to delay would create a financial hardship. MOVED BY LAWRENCE, SECONDED BY ROBERTSON, THAT THE WAIVER BE GRANTED SUBJECT TO THE PETITIONER FILING AN AGREEMENT TO CONFORM TO THE ADOPTED SENSITIVE AREAS ORDINANCE AND TO PROCESS ANY APPLICATION AT THE HIS OWN RISK AND EXPENSE.* Councilman Ekberg inquired about the timeframe of the project. Mr. Shaver responded that he expected to have an application in within a week. *MOTION CARRIED. WAIVER IS GRANTED SUBJECT TO CONDITIONS. Craig Hittle, 4631 So. 138th Street, stated the subject property is located at 4637 So. 138th Street. Mr. Hittle stated that he had applied for a building permit for a foundation to move a home onto the lot last summer. The application process was near completion when the structure was purchased by another party. Consequently, he was required to withdraw his application. At this time, he plans to move a house onto a small plateau that rests on the property with one end on the slope side opening up as the basement part. He has obtained a site plan for the project and a curb cut permit. Construction would have to begin in March in order for that permit to remain valid. There will be slight differences in the plan that had already been reviewed and accepted by the Building Department. The new plan calls for different dimensions of the structure and different positioning of the structure. The new plan calls for a smaller sized structure and positioning to require less excavation. Mr. Hittle feels that the new proposal would have less impact than the original proposal. Mr. Shaver has obtained a storm drain permit to improve and change the course of an existing storm drain that is currently on the property. The existing system is functioning properly; however, the improvement would call for replacing a major portion of it which would extend the life of the system and provide for additional catch basins. This plan also calls for the elimination of a steep driveway and replacement with a driveway and parking area that conforms with the existing code. In order for his other permits to remain in effect, Mr. Hittle states that he must move on this project by mid- March. He feels that the revisions he has made to the plan reduce the impact on the sensitivity of the area. Councilman Rants asked Mr. Hittle how he planned to handle the impervious area around the house. He noted that the wooded hillside is very steep and there is a lot of water on the road and across the road. Mr. Hittle replied that at the top of the driveway area there is a catch basin. Water that comes off the roof of the house and through the downspouts will flow underground and feed into the storm sewer. City Clerk Maxine Anderson, read a message from Diane DeAno, resident and neighbor to Mr. Hittle, in which she stated she is in favor of Mr. Hittle's proposal. It is a well thought out plan and will improve the property. His plan calls for improvements to the storm drain and he is showing concern for the neighbors. Councilman Lawrence asked Rick Beeler if he was confident a plan could be developed for Mr. Hittle's property that would conform to an approved SAO in terms of the drainage capacity. Mr. Beeler responded that out of the ordinance may come some flexibility for daylight basement single family homes on hillsides. Mr. Hittle noted that Public Works had remarked that it was a very responsible plan. Councilman Lawrence asked Mr. Hittle that if the Council grants the waiver, he understands that it is his obligation to go back and make whatever changes are deemed at that time to be necessary to conform to the ordinance. Mr. Hittle responded that before he applied for a permit, he would have to review what that might involve. He would not want to get into a position that he would put a house there and then have to tear it down. He would have to check to see what risks are involved before he would go ahead with the project. He would not go ahead and put a house there and then have the Building Department tell he him had to remove it. Councilman Lawrence commented that the hillside is steep and is known for having water problems. The eventual ordinance will address the stability for a house and how the water is handled. Referencing the staff report, Councilman Ekberg commented that the report states that the Public Works Department has already approved storm drain and curb cut plans prior to withdrawal of the building permit. The storm drain permit will expire in March of 1990. He inquired if that provides Mr. Hittle the opportunity to go ahead and put the storm drain system in even though he doesn't have a building permit. Mr. Hittle commented that he would not do so because the storm drain is capitalized into the entire project. He would not make the improvements without being able to go ahead with the project. Councilman Ekberg stated that it was his understanding that Mr. Hittle is grandfathered with the storm drain permit. Therefore, no matter what the moratorium effects regarding storm drains for that site, as long as he is grandfathered with the existing storm drain system he has in, which was allowed prior to the moratorium, there is nothing the moratorium can do to affect that storm drain. Ross Earnst indicated that Councilman Ekberg was correct regarding the storm drain. It is possible that if we require special geotechnical studies because of the slope, it is possible that before he got a building permit, he would have to do those geotechnical studies. Although it probably wouldn't alter the storm drain, it might require Mr. Hittle to put in some additional work to stabilize the slope before the house could go on it. In response to Councilman Duffle's question as to whether he would be willing to do additional work to conform to the adopted SAO, Mr. Hittle responded that he didn't know. If he were asked to tear down his house, he would not be willing to do that. If he were asked to provide additional support, such as drainage for a particular area of the property, he would be willing to do it. Regular Council Meeting February 20, 1990 Page 7 Waiver Reauest (con't) Craig Hittle Request for Waiver of Ordinance #1544 Mike and Christi Easter NEW BUSINESS South King County Transportation Benefit District MOVED BY EKBERG, SECONDED BY ROBERTSON, TO APPROVE THE WAIVER SO THAT A BUILDING PERMIT MAY BE PROCESSED CONDITIONAL ON A GEOTECHNICAL STUDY BEING DONE.* Councilman Robertson asked Councilman Ekberg's reason for making this waiver more specific than the other waivers in that you have requested the geotechnical study done prior to the building permit. Councilman Ekberg responded that the one considered before Mr. Hittle's was generally a flat piece of property with a 15 degree slope in one corner. Here there is a piece of property that is between a 15 percent grade and a 40 percent grade. *MOTION CARRIED WITH DUFFIE VOTING NO. WAIVER IS GRANTED WITH CONDITIONS. Mike Easter addressed the Council with his proposal to build two single family homes at 4820 So. 150th Street. He noted that there are no large trees on the property. The houses would be built on what is now a pasture. In response to Council President Hernandez' question of urgency, he noted that to wait until after the moratorium expires, he will lose the ability to schedule sub contractors for early summer and the interest rate is unstable. Councilman Moriwaki asked Mr. Easter if he would be willing to conform with the adopted SAO at his own risk and expense. Mr. Easter replied that regarding surface water management, he had assumed that he would have to put in some type of infiltration system to handle the downspouts. He commented that he wouldn't mind creating some water diversion or more extensive infiltration type systems, but if he has to put in a 400 foot storm drain, he might want to apply for some help. He stated he would be willing to take care of any water he personally diverted. MOVED BY MORIWAKI, SECONDED BY DUFFLE, THAT A WAIVER BE GRANTED SUBJECT TO THE PETITIONER FILING AN AGREEMENT TO CONFORM TO THE ADOPTED SENSITIVE AREAS ORDINANCE AND TO PROCESS APPLICATIONS AT HIS OWN RISK AND EXPENSE. MOTION CARRIED. Director of Community Develop Rick Beeler noted that Council did not impose the condition subject to the petitioner filing an agreement on Mr. Hittle's waiver request as with the other requests, but they did impose the geotechnical study. Councilman Robertson stated that when he seconded the motion, he did it with the intent and understanding that it was similar to all the other waivers we have granted with the exception that it had an additional item to it, and that was that they had to do a geotechnical report. Council concurred with Councilman Robertson. Councilman Robertson reported on the SKCTBD. He commented that it is beneficial to the City to join in this program, and there is a very low risk in the way it is set up to start. To get the "flexible" TBD going we will make public notice but not a mailing to everyone. The TBD cannot issue debt to start with. Therefore, it is fairly low risk at this point. We can modify the boundaries or get out of it easily. Our commitment at this time will help to hire an administrator and a consultant to put together a project list. We will also be able to finalize the rules as to how the "flexible" TBD would work. Tukwila's commitment is only $8,000 and we can back out at any time. After the first year, all of the jurisdictions may decide to jointly go into a "strict" TBD. Regular Council Meeting February 20, 1990 Page 8 New Business (con't). South King County Transportation Benefit District Bid Award for Construction Improvements on 57th Ave. So. REPORTS ADJOURNMENT 10:02p.m. U C r3 In this TBD we would actually notify property owners and the City would be allowed to issue debt. The benefits at this time are twofold: 1) it starts the jurisdictions working together on transportation, and 2) if the state goes ahead with the gas tax, they may look favorably upon transportation benefits districts because the state legislature created them. We may be able to gain funding that we would not have access to otherwise. Councilman Robertson concluded by stating he is strongly in favor of this first step. MOVED BY HERNANDEZ, SECONDED BY DUFFLE, THAT COUNCIL APPROVE THE MODEL RESOLUTION AND APPOINT DENNIS ROBERTSON AS REPRESENTATIVE TO THE SOUTH KING COUNTY TRANSPORTATION BENEFIT DISTRICT.* Regarding debt, Councilman Lawrence asked if there is a responsibility to all the parties to all the debt or is the debt individualized as to what's actually being done within our jurisdiction. Ross Earnst explained that this "flexible" TBD cannot issue debt. However, a TBD that is able to issue debt would incur the debt itself, not the cities. There is a lid on total debt. If the TBD uses up some of that lid, the cities don't have that available to them. Ross Earnst explained that Tukwila's share of $8,395 was determined by the population of 10,800. *MOTION CARRIED. Councilman Rants suggested that in the future we do not use the same company for both consulting and inspecting. MOVED BY ROBERTSON, SECONDED BY RANTS THAT COUNCIL AWARD THE BID FOR CONSTRUCTION IMPROVEMENTS ON 57TH AVE. SO. TO MAM CONSTRUCTION IN THE AMOUNT OF $28,992.12 WITH THE CONDITION THAT ANOTHER FIRM DO THE INSPECTIONS. MOTION CARRIED. MOVED BY ROBERTSON, SECONDED BY LAWRENCE THAT THE BRIGADOON RIDGE PUBLIC HEARING BE SCHEDULED FOR MARCH 5TH COUNCIL MEETING. MOTION CARRIED. Councilman Moriwaki reported that he had been selected as a representative to Puget Sound Council of Governments. MOVED BY ROBERTSON, SECONDED BY HERNANDEZ, THAT THE MEETING BE ADJOURNED. MOTION CARRIED. G y L. Van Dusen, Mayor 7"? Joe Cantu, Deputy City Clerk