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HomeMy WebLinkAboutRes 1289 - Finding and Conclusion of Nine Storage Tanks at Baker Commodities Plant �wILA, W a: :o 1908 Ci o f Tukw Washington Resolution No. 1289 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, FINDING AND CONCLUDING THAT ADDITION OF THE NINE STORAGE TANKS AT THE BAKER COMMODITIES' RENDERING PLANT AT 5795 SOUTH 130TH PLACE IS A PROHIBITED EXPANSION, ENLARGEMENT OR INCREASE OF A LEGAL NONCONFORMING USE. WHEREAS, Richard Tompkins of Pacific Engineering Company made application on behalf of Baker Commodities, Inc. for an Unclassified Use Permit pursuant to TMC 18.66, to install nine tallow storage tanks at an animal rendering plant located at 5795 South 130th Place in the City of Tukwila., as described in Department of Community Development File No. L92 -0010, and WHEREAS, on October 5th, 1992, the City of Tukwila., by Resolution Number 1229, denied that application based in part upon its conclusion that the addition of the nine tallow storage tanks was prohibited by TMC 18.70.040(1), and WHEREAS, Baker Commodities, Inc., initiated an action in King County Superior Court which sought, in part, certiorari review of that decision, and WHEREAS, Judge Joseph Wesley issued a written decision in that writ action on August 9, 1993, followed by Judge Wesley's entry of an order in that action on September 20, 1993, which decision and order remanded the matter to the City of Tukwila with instructions that the City of Tukwila make appropriate findings from the existing record in light of applicable law relating to whether the proposed tanks constitute an enlargement, an increase or an extension as defined and embodied in TMC 18.70.010 et.seq., and WHEREAS, the Council received no new evidence, but received legal briefing in the form of (1) a two page memorandum dated January 13, 1994, from City Attorney Linda Cohen and Terrence Leahy, counsel for the City in the Superior Court action, (2) a twenty one page memorandum dated January 13, 1994 from Terrence A. Leahy, (3) an eight page letter and proposed findings and conclusions from Ms. Stephanie Arend, counsel for Baker Commodities, Inc. in the Superior Court action, (4) a six page letter dated January 18, 1994, from Ms. Stephanie Arend, which was supplied to the Council at the January 18th hearing and (5) a one page list of 17 factual inquiries supplied to the Council by Mr. Leahy at the January 18th hearing, and WHEREAS, the Council, at its meeting on January 18, 1994, heard oral presentations of opinions of applicable law offered first by Ms. Arend and then by Mr. Leahy, and WHEREAS, the Council then engaged in consideration and discussion of the application of applicable law to the facts contained in the existing record; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: 1 SECTION 1: FINDINGS 1. The proposal to introduce nine tallow storage tanks to the site involves moving on to the site structures which were not present on the site at the time the use became nonconforming. [Writ at 37, 70, 71, 87] 2. The proposal to add nine tallow storage tanks to the site will increase on site tallow storage capacity by 985 tons over the approximately 1400 tons of on site storage capacity which existed when the use became legally nonconforming in 1982. Adding these nine tallow storage tanks represents a substantial increase in on site tallow storage capacity. [Writ at 70, 37, 183, 374] 3. Adding nine tallow storage tanks is not "incidental" in character, is not minor, casual or subordinate in nature. Rather, the storage capacity which these nine tanks represent is a major component of and an integral part of the production and delivery of the applicant's product. 4. The applicant acknowledges and the record supports the finding that the proposed addition of the nine tallow storage tanks is not in the nature of a "repair [Writ at 171 5. The applicant acknowledges and the record supports the finding that the proposed addition of the nine tallow storage tanks is not in the nature of a "plant modernization [Writ at 103, 25 1 6. The introduction of nine tallow storage tanks to the site was not a feature of the plant design at the time the operation of the plant on the site became legally nonconforming. There is no evidence in the record that this plant was designed with the intent of moving these nine storage tanks onto the site of the nonconforming use. These nine storage tanks have always been off site. The tanks were owned by the Port of Seattle and were merely leased by the applicant. The intent to move these nine tanks onto the site of the nonconforming use arose for the first time in 1991, when the applicant was informed by the Port of Seattle that the Port was closing its tank farm Only then did the applicant seek to incorporate these nine storage tanks into its on site plant design. [Writ at 1031 7. There are certain characteristics of the present nonconforming use which cause off site impacts, including impacts resulting from the plant's emissions of odors and from the plant's generation of hauling traffic. The existing operation of the nonconforming use periodically generates intense odor emissions. The existing operation of the plant also involves transporting material to and from the plant in large trucks. Vehicles access the site through narrow residential roads. Trucks carrying animal parts to the plant have spilled parts of their loads, creating unsafe road conditions and odor impacts. Trucks traveling through the neighborhood have hit animals in the road, killing several pets belonging to people living in the neighborhood. Truck travel through this residential area accelerates the deterioration of roads, sidewalks and private driveways. [Writ at 353, 366, 467, 107, 241, 469, 457, 352] 8. Adding nine tallow storage tanks to the site is not directed at achieving a net reduction in adverse off site impacts, nor is it expected to result in any reduction in adverse off site impacts. [Writ at 3611 9. The geographic area affected by the present operation of the nonconforming use is extensive. Although the site is bounded on three sides by a river, the width of the river alone is inadequate to prevent the off site odor impacts associated with the existing operation. Winds blowing through the plant and the river valley carry the odors to the golf course, to the northeastern Skyway residential area above and to the north of the plant, to the northeast of the plant along Empire Way, northward up to 129th Street and to residential areas to the west of the plant. [Writ at 353, 416, 111]. 10. The current uses which exist within those geographic areas affected by the present operation of the nonconforming use include recreational use (Le. the golf course) and residential uses. [Writ at 111] -2- 11. Adding nine tallow storage tanks to the site of the tallow plant will cause a change in the nature of transportation associated with the operation of the nonconforming use. A. The addition of the nine tallow storage tanks will result in an increase in the volume of traffic associated with the use. Bringing the nine tallow storage tanks onto the site would add upwards of three truck trips per week to the present number of such truck trips taking tallow from the site. B. Although the applicant argues that the same volume of material may leave the site as left it when the nine tanks were at the Port of Seattle's tank farm, relocating those storage tanks from the Port of Seattle to this site will change the character of the traffic impacts associated with the plant's operation. Introduction of these nine storage tanks to the applicant's plant will introduce, as well, the traffic pattern associated with those nine storage tanks. The traffic pattern associated with those nine storage tanks is essentially this: The tallow stored in these tanks is eventually trucked by tallow purchasers to the Port of Tacoma, where it is loaded on to waiting ships to be transported elsewhere for use. C. Introduction of the traffic patterns associated with these nine tanks will change the character of traffic impacts from the nonconforming use in these ways. 1. First, it will introduce an element of urgency to the truck trips which is not present now, as there is a greater urgency in transporting tallow to a waiting ship than in transporting it to an off site storage tank. When a ship is in port to be loaded, there is typically a concentration of truck trips which shuttle tallow from storage tanks to the waiting ship. There is a certain time pressure to get the tallow to the waiting ship as quickly as possible. The time pressures under which those truck trips will occur increase the risk that a traffic mishap will occur. 2. Second, while these circumstances increase the need to exert control over the conduct of truck haulers, moving these nine tanks to the Tukwila plant will actually reduce the applicant's control over the conduct of haulers. The volume of material which left the plant while these nine tanks were at the Port of Seattle left in trucks driven by the applicant's employees. The applicant can exert more effective control over the conduct of drivers it employs than it can exert over the conduct of independent haulers. If the nine tanks are moved on to the site, then that volume of material will leave the site in the trucks of independent haulers who will take delivery from the storage tanks at the Tukwila plant. This reduction in the applicant's ability to control the conduct of transport operations will, in turn, likely increase the risk of occurrence of those adverse impacts associated with the transportation characteristics of the plant. 3. Third, shuttling tallow from these nine tanks to waiting ships may require Saturday trucking which does not currently occur. That fact further increases the risk of adverse consequences associated with the transportation characteristics of the plant. Introducing truck traffic of this nature on the weekend while children are out of school increases the risk of serious injury to children living in the neighborhoods through which the trucks are known to travel. [Writ at 456 -458, 478, 469, 335, 241, 352, 441, 327, 480, 223, 465, 107, 466] -3- 12. City staff and the city attorney have interpreted Tukwila's nonconforming use ordinance and applied it to this application. Both the city staff and the city attorney have concluded that the ordinance operates to prohibit the addition of the nine tallow storage tanks. [Writ at 329, 251, 253, 418.352 -355] 13. Those who testified in opposition to the proposed addition of the nine storage tanks lived, worked or engaged in recreational activities within the geographic areas affected by the current operation of the plant. Their testimony was considered primarily for the purpose of establishing the impact generating characteristics of the existing plant operation, as the Council could not undertake consideration of how adding nine tanks aright affect a change in associated impacts without first establishing the impacts associated with the existing plant operation. 14. There was no evidence in the record establishing the cost which the applicant expected to incur in moving the nine storage tanks to the site. 15. As described more fully above, the introduction of these nine tallow storage tanks to the site of the nonconforming use will change off site impacts associated with the existing use in these ways: A. It will result in an increase in traffic volume. B. It will result in a concentration of truck traffic during periods of ship loading, and an increase in the time pressures under which such truck traffic will occur. C. It will result in a reduction in applicant's ability to control the conduct of those driving the trucks hauling tallow from the plant. D. It will result in an increase of truck traffic through residential areas during periods when area children are out of school and at play. E. Both individually and combined, these traffic related impacts represent a change in the nature of the nonconforming use which significantly increases the risk of harm to the public which may result from this use. 16. These consequences, as set forth above, of adding these nine tanks will adversely impact the surrounding geographic areas. 17. The adverse impacts on surrounding uses, as set forth above, which will result from adding these nine tallow storage tanks are the types of impacts which the limitations in the Tukwila's nonconforming use ordinance are intended to prevent. Permitting the addition of these nine tallow storage tanks to this legally nonconforming use would frustrate the City's policy, as set forth in TMC 18.70.010, of perpetuating desirable existing uses in surrounding geographic areas. SECTION 2. CONCLUSIONS Based on the foregoing Findings, the following conclusions are reached: 1. Baker Commodities' rendering plant is a legal nonconforming use which is subject to TMC 18.70.010 et. seq., which ordinance regulates nonconforming uses which adversely affect the development and perpetuation of desirable residential, commercial, and industrial areas with appropriate groupings of compatible and related uses. TMC 18.70.010. Limitations contained in the City's non conforming use ordinance reflect the City's policy against expansion and extension of nonconforming uses beyond the use which existed on the site at the time the use became nonconforming. TMC 18.70.040 (1) and (2). -4- 2. The City's nonconforming use ordinance provides that "no such nonconforming use shall be enlarged or increased nor extended to occupy a greater use than was occupied at the effective date of adoption of this title TMC 18.70.040(1). In determining whether a proposed action enlarges or increases a nonconforming use or extends it to occupy a greater use than it occupied when the use became nonconforming, the City may identify and consider the nature and character of the proposed action and the impact the proposed action may have. 3. In examining the nature and character of the proposed action, factors the City may consider include: A. Whether it involves moving on to the site a structure or structures which were not on the site at the time the use became nonconforming. B. Whether it involves a change in the production or storage capacity which existed on the site at the time the use became nonconforming. C. Whether it carries out a feature of on site plant design which existed before the use became nonconforming. D. Whether it is "incidental" in character. E. Whether it is in the nature of a "repair F. Whether it is in the nature of plant "modernization G. Whether it will have the net effect of reducing adverse off site impacts. H. The cost to the applicant of the proposed action. 4. In examining the impact of the change, the City may: A. Identify those characteristics of the existing nonconforming use which cause off site impacts and identify those geographic areas where such impacts occur, B. Identify current uses and planned future uses within those geographic areas which are adversely affected by the existing operation of the nonconforming use. C. Consider whether the proposed action will affect a change to those characteristics of the existing use which cause adverse impacts within identified geographic areas. 5. Based upon application of these factors to the facts found above and contained in the record, the City concludes that the proposed action is not "incidental" in character, is not in the nature of a "repair" or in the nature of a "plant modernization and is not intended to merely carry out a feature of on site plant design which existed before the use became nonconforming. The proposed action also does not have the net effect of reducing adverse off site impacts of the nonconforming use. 6. The addition of the nine tallow storage tanks will result in significant changes in those characteristics of the existing nonconforming use which adversely impact surrounding geographic areas. 7. The off site impacts attributable to the introduction of these nine tallow storage tanks to the site upon which the plant conducts its legally nonconforming use are significant. The off site impacts attributable to the addition of these nine tallow storage tanks would operate to enlarge, increase and/or extend the legal non- conforrninng use beyond that which existed when the use became nonconforming. -5- 8. The City therefore concludes that addition of the nine tallow storage tanks is an enlargement, an increase or an extension of a legal non conforming use which is prohibited by TMC 18.70.010 et. seq. 9. The City therefore denies the application. PASSED BY THE CT�COUN�IL O CITY OF TUKWII.A, WASHINGTON at a regular meeting thereof this day of 1994. Steve Mullet, Council President ATTEST /AUTHENTICATED: J el Cantu, City Clerk APPROVED AS TO FORM: B /0 Office of the City Attorney Filed with the City Clerk: Passed by the City Council: c;2 7 i Resolution Number: -6-