HomeMy WebLinkAboutCAP 2012-07-09 COMPLETE AGENDA PACKETCity of Tukwila
Distribution:
K. Hougardy
Mayor Haggerton
Community Affairs
A Ekberg
A. Ekberg
D. Cline
C. O'Flaherty
Parks Committee
D Seal
D. Robertson
S. Matej Kerslake
K. Mate
B. Giberson
O Kathy Hougardy, Chair
J. Pace
O Joe Duffie
O Allan Ekberg
AGENDA
MONDAY,, JULY 9 2012
CONFERENCE ROOM #3, 5:00 PM
Item Recommended Action
Page
1. PRESENTATION(S)
2. BUSINESS AGENDA
a. Bid award for Tukwila Community Center Spray
Park sewer connection.
Bob Gberson, Public Works Director
b. Low density residential zone height standard.
Jack Pace, Community Development Director
c. Renewal of medical cannabis collective gardens
moratorium.
Jack Pace, Community Development Director
3. ANNOUNCEMENTS
4. MISCELLANEOUS
a. Forward to 7/16 Consent Pg.1
Agenda.
b. Committee Pg.11
recommendation.
c. Forward to 7/23 C.O.W. Pg.49
and 8/6 Regular Mtg.
Next Scheduled Meeting: Monday, Ju/y23, 2012
S The City of Tukwila strives to accommodate those with disabilities.
Please contact the City Clerk's Office at 206 433 -1800 TukwilaCityClerk @TukwilaWA.gov) for assistance.
x
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs Parks Committee JA
FROM: Bob Giberson, Public Works Director
BY: Mike Cusick, Senior Water /Sewer Engineer
DATE: July 6, 2012
SUBJECT: Tukwila Communitv Center Sorav Park Sewer Connection
Project No. 91030101
Bid Award
ISSUE
Award bid to Goodfellow Bros., Inc., for the installation of an outside drop connection on the existing King
County sewer manhole that serves the Tukwila Community Center (TCC).
BACKGROUND
In 2008 the City installed a water spray park at the northwest corner of TCC. At that time it was decided to
install a temporary inside drop connection to the King County Metro sewer manhole and, at a later date,
install the outside drop connection required by King County. A sewer drop connection is required when
the elevation change from the building to the sewer main is too extreme to gradually connect to the sewer
main (which can be 14 feet deep). An outside drop for a sewer manhole connection is preferred as the
pipe is then not in the manhole structure and will not interfere with maintenance.
DISCUSSION
The City advertised the project on May 24 and 31, 2012. Four bids were received and opened on June
14, 2012. The bids were checked and tabulated and one minor math error was found in the bids.
The low bid was from Gary Harper Construction in the amount of $41,500.50 including sales tax. Mr.
Harper was contacted and asked if he thought his bid numbers were correct. He returned a letter to the
City stating that he had an error in Bid Item 10 and was requesting to withdrawal his bid (see attached
letter from Gary Harper Construction). The City has accepted Gary Harper's bid withdrawal based on
standard specifications.
The second lowest bidder, Goodfellow Bros., Inc., submitted their bid with one minor math error in their
grand total by $0.50. The bid tab reflects the corrected total. References were checked on similar projects
and it was reported that Goodfellow Bros., Inc. performed quality work.
FINANCIAL IMPACT
Funds for this project are in the 301 Parks Fund:
Bid Results Enaineer's Estimate Budaet
Construction (Includes Sales Tax) $64,495.50 $83,767.50 $10,000.00
Contingency 10% 6,449.55 0.00 70,000.00
Total $70,945.05 $83,767.50 $80,000.00
RECOMMENDATION
Council is being asked to award the contract to Goodfellow Bros., Inc. in the amount of $64,495.50 for the
Tukwila Community Center Spray Park Sewer Connection and consider this item at the July 16, 2012
Regular Consent Agenda.
Attachments: Manhole Specifications (Inside and Outside Drop Connections)
Page 47, 2012 CIP
Bid tabulation
Letter from Gary Harper Construction
W:\PW Eng \PROJECTSW- PK Projects \TCC Spray Park Sewer Connection (91030101) \Info Memo Bid Award Goodfellow Bros 070612.docx
x
NOTES:
1. INSIDE DROPS REQUIRES CUT TOP SECTION OF 90° BEND
DIRECTOR'S APPROVAL.
2. U S E INSIDE DROP ONLY ON PVC
SYSTEM.
3. SEE SS -08 FOR ACCESS AND
CHANNELIZATION. I If
STAINLESS STEEL PIPE CLAMP
4. SEE SS -12 AND SS -13 FOR LADDER 11 i 11
AND STEP DETAILS. +.I I DETAIL A
ACCESS GI II]
I
I Manhole
I Lid
L_ KOR -N -SEAL BOOT,
54 MIN. DIA. PIPE CONNECTION OR EQUAL
SEE DETAIL A (ABOVE)
L
PVC PIPE
SAME SIZE
LADDER
VARIES, 2' MIN.
REMOVE GASKET I STAINLESS STEEL BOLTS
FROM PVC ELBOW I FROM BOLTED TO MANHOLE WALL.
I I MAX. SPACING 6'.
Sewer
CHANNELIZATION
Main j ib
RUBBER BOOT FLAP
TO PREVENT SPLASHING
NOT TO SCALE
Ld
MANHOLE
C i ty Of INSIDE DROP
�r SHEET: SS -09
43 Tukwila I REVISION #1: 08.03
19oe APPROVAL: B. SHELTON
Jl
3
A
NOTES:
1. DROP PIPING TO BE SAME SIZE
AS INTERCEPTED SEWER.
2. BACKFILL WITH COMPACTED
MATERIAL.
3. CLASS 50 DUCTILE IRON PIPE
ONLY.
4. CONCRETE CLASS 5 (1 -1/2).
CEMENT 5 SACK MIX WITH 1 -1/2"
AGGREGATE.
5. SEE SS -08 FOR ACCESS AND
CHANNELIZATION.
6. SEE SS -13 FOR STEP DETAIL.
ONE LENGTH TO SOLID
BEARING MATERIAL WHEN
SPAN IS MORE THAN 4'.
1
FLEXIBLE JOINT
MIN DROP
PIPE
SIZE DROP
8" 1.45'
10" 1.70'
12" 2.08'
ACCESS
i I
I
I �I
a
:a
_,a
a.
a.
KOR -N -SEAL
MJ OR FL
r a
1/2" BLIND FLANGE WITH
STAINLESS STEEL BOLTS.
6" MIN. 1
1" MAX.
90° BEND
CONCRETE J
v
NOT TO SCALE
I MANHOLE
c
City O I DROP CONNECTION
x
I SHEET: SS -10
oy Tukwila I REVISION #1: 08.03 I LAST REVISION: 04.0
a trios
4 APPROVAL: BOB GIBERSON, CITY ENGINEER
12" Typ. STEP
1
CITY OF TUKWILA CAPITAL PROJECT SUMMARY
Project Location
2012 2017 Capital Improvement Program
47
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5
2012 to 2017
PROJECT:
TCC Spray Park Sewer Connection Project No. 91030101
The Tukwila Community Center Spray Park is using a temporary connection to the King County manhole
DESCRIPTION:
and King County is requiring a permanent sewer connection with an outside drop.
JUSTIFICATION:
The sewer connection is required by King County.
The sewer connection and grease interceptor were required to be completed by 2010, but an extension
STATUS:
was received from King County allowing completion by 2012.
MAINT. IMPACT:
COMMENT:
This project will be coordinated by Public Works and Parks Recreation.
FINANCIAL
Through Estimated
(in $000's)
2010 2011 2012 2013 2014 2015 2016 2017 BEYOND TOTAL
EXPENSES
Design
7
7
Land (R/W)
0
Const. Mgmt.
10
10
Construction
70
70
TOTAL EXPENSES
0 0 87 0 0 0 0 0 0
87
FUND SOURCES
Awarded Grant
0
Proposed Grant
0
Mitigation Actual
0
Mitigation Expected
0
BEET 1 (1st Qtr Percent)
0 0 87 0 0 0 0 0 0
87
TOTAL SOURCES
0 0 87 0 0 0 0 0 0
87
Project Location
2012 2017 Capital Improvement Program
47
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GARY HARPER CONSTRUC'I'ION INC.
14831 223rd Street SE Snohomish, WA 98296 -3989
(360) 863 -1955 Fax (360) 863- 1966
June 18, 2012
Attn: Mike Cusick, PE
City of Tukwila
6200 Southcenter Blvd
Tukwila, WA 98188
Re: Tukwila Community Center (TCC) spray park manhole connection
Dear Mike,
After reviewing my bid, I discovered a mathematical error in bid Item #10. When
I was adding it up I missed the 9 in the 9,500.00 figure. I have attached a copy
of my tabulation sheet as evidence. Therefore, I am requesting relief from the
responsibilities of Award.
Under penalty of perjury, 1 declare the above statement to be true and I certify
that the attached work sheets are the ones used to prepare the bid.
Gary A. Harper G'
President
Notary sG+'�2GC� �2�Q/�'
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City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs and Parks Committee
FROM: Jack Pace, Department of Community Development Director
BY: Minnie Dhaliwal, Planning Supervisor
DATE: July 3, 2012
SUBJECT: Low Density Residential Zone height standard
ISSUE
Should the City change the method of calculating building height in the Low Density Residential
zone?
BACKGROUND
Staff had previously briefed the Community Affairs and Parks Committee (CAP) in October
2011, regarding some options for regulating the bulk and size of single family dwelling units.
See Attachment A for the memo to CAP and the minutes of the meeting. At that time the
Committee gave direction to staff to amend the method of calculating building height for sloping
sites and to not make any other changes to the building footprint or setback regulations.
Planning Commission reviewed the alternate method of calculating height for sloping lots and
recommended amending the building height definition to give the developers two options: 1)
measuring from the lowest grade; or 2) to establish different measuring points for different
sections of the structure and allow the structure to better respond to the topography. See
Attachment B for the minutes of the Planning Commission meetings.
At the April 9, 2012, CAP meeting, the Committee forwarded the building height item to full
Council without a recommendation. See Attachment C for the minutes of the meeting. At the
April 23, 2012 Committee of Whole (COW) meeting Council asked staff to remove the proposed
changes related to building height issue from the proposed ordinance and referred this topic to a
future CAP meeting. See Attachment D for the minutes of the COW meeting.
DISCUSSION
The Planning Commission's recommendations related to the building height issue are listed
under Attachment E. Also, Attachment F includes comparison of Tukwila's building height
standards with some neighboring cities.
FINANCIAL IMPACT
Not applicable
RECOMMENDATION
Staff recommends that Committee review Planning Commission's recommendations and decide
if any changes should be made to the method of calculating building height of single family
residential units.
11
INFORMATIONAL MEMO
Page 2
ATTACHMENTS
A. Memo to CAP dated October 5, 2011, regarding single family residential
development standards, along with the attachments and the minutes of
the meeting.
B. Planning Commission meeting minutes from January 26, 2012 and
February 23, 2012.
C. April 9, 2012 CAP meeting minutes
D. April 23, 2012 COW meeting minutes
E. Planning Commission's recommendations on the building height issue
F. Comparison of building height standards of Tukwila and some neighboring
cities
12
Attachment A
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs and Parks Committee
FROM: Jack Pace, Department of Community Development Director
DATE: October 5, 2011
SUBJECT: Low Density Residential Zone Development Standards
ISSUE
Should the City change residential development standards such as height, setbacks or building
footprint to increase the compatibility of infill development with existing structures?
BACKGROUND
This issue was reviewed by the City Council in 2007, when the Council asked staff to review the way
building height was calculated after receiving complaints about a new house that the neighbors felt was
out of scale with the surrounding development. The Community Affairs and Parks Committee reviewed
the issue and asked staff to look at increasing the rear yard setbacks. Based on the research at that
time it was determined that there was no easy fix to regulating the compatibility of infill development
and just increasing the setback would not have prevented the house in question to be built. However it
was decided to review the height issue with an overall look at the single family standards. An overall
look at the policies for residential neighborhoods is usually done as part of the Comprehensive Plan
update. At this time Tukwila is mandated by State Law to update its Comprehensive Plan by 2015. The
resident who raised this issue in 2007 has asked that this issue be revisited. Staff has prepared some
options for the Committee to review in order to address this issue.
DISCUSSION
There are a number of ways that the bulk or the building envelope of a structure can be regulated, such
as building height, lot coverage, setbacks, and in some jurisdictions floor area ratio (FAR). The current
development standards in the LDR zone that regulate single family development are listed in
Attachment A. Also, Attachment B is the comparison of common development standards of the
neighboring jurisdictions. Different development standards that apply to a single family home are
discussed below along with some options for revising the standard in order to address the compatibility
of infill housing with the existing homes.
Building Height
Building height is only one element of the development regulations that controls the bulk or the building
envelope of a structure. At this time the building height is calculated by the method laid out in the
Washington State Building Code. It is measured from the grade plane, which is the average of the
finished ground level adjoining the exterior walls of the structure. On a sloping lot the height of the
structure on one side can be more than the maximum height allowed on a flat lot. Attachment B
discusses the alternate ways of calculating the building height on a sloping lot. One option is to
MD
10 -5 -II
WA2011 Info Memos Councils .SingleFamDevStandards.doc
13
INFORMATIONAL MEMO
Page 3
As part of the Comprehensive Plan update the City of Tukwila will review the policies in the residential
neighborhoods chapter. The policies related to neighborhood quality; density requirements; accessory
dwelling units; street layout and sidewalk requirements; orientation of the home; accessory structures
and other broader policies will be reviewed and discussed as part of that process. However if the
Committee decides to review development standards such as building height, setbacks, building
footprint and floor area ratio at this time then staff has laid out some options to consider for further
discussion.
OPTIONS
If the Community Affairs and Parks Committee would like to review the development standards in the
LDR zone then listed below are some options:
1) Change the Zoning Code to require a different method of calculating the building height on
sloping lots;
2) Amend the standards that regulate bulk by:
a) Increasing the rear yard setback in LDR for all houses from 10 to 15 feet and to
25 feet if the house has a third story (with a possible exception for alley accessed
garages or accessory structures); and /or
b) Choose either i) or ii) listed below:
i) Allow administrative approval to allow variances up to 10% of the building
footprint standard if certain standards are met such as compatibility in
scale with the adjoining homes; modulation of the fagade; and /or larger
than required setbacks are provided; or
ii) Adopt a graduated FAR standard similar to the building footprint standard,
where the percentage decreases as the lot size increases.
3) No Action.
RECOMMENDATION
The options listed above under #1 and #2 will result in slightly reducing the size and the bulk of the
homes that could be built in Tukwila. However none of the changes to the building standards would
make a significant difference in the bulk of the house that was the source of the neighborhood
complaint. Staff recommends that at a minimum the method of calculating building height on sloping
lots be revised. If the Committee wishes to look at options 1 and 2, staff recommends that this item be
forwarded to the Planning Commission for further review. Staff would bring back the Planning
Commission's recommendation to the City Council for final action.
ATTACHMENTS
Attachment A: Tukwila's Single Family Development Standards
Attachment B: Comparison of development standards of the neighboring jurisdictions
Attachment C: Methods of calculating building height
MD
WA2011 Info Memos-CounciftSing leFamDevStandards.doc
3
10 -5 -2011
IM,
Development Standards in the Low Density Residential (LDR) Zone
Minimum lot size
6500 sq. ft.
Average Lot Width (minimum) 50 feet
Setbacks:
Front 20 feet
Front, decks or porches 15 feet
Second Front 10 feet
Sides 5 feet
Rear 10 feet
Height 30 feet maximum and is measured per
Washington State Building Code (from the
average grade plane to the mid -point of the
highest roof)
Parking Two spaces for each dwelling unit up to 3
bedrooms and then one additional space for
every two bedrooms in excess of 3 bedrooms
in a dwelling unit.
In addition to the standards listed above the following sections regulate accessory dwelling
units, building footprint and the design of the dwelling units:
18.10.030 Accessory dwelling units
Accessory dwelling units are permitted in LDR zone, provided the following criteria are met:
a. minimum lot of 7,200 square feet;
b. accessory dwelling unit is no more than 33% of the square footage of the primary residence and a maximum
of 1,000 square feet, whichever is less;
c. one of the residences is the primary residence of a person who owns at least 50% of the property,
d. dwelling unit is incorporated into the primary detached single family residence, not a separate unit, so that
both units appear to be of the same design as if constructed at the same time;
e. minimum of three parking spaces on the property with units less than 600 square feet, and a minimum of
four spaces for units over 600 square feet; and
f. the units are not sold as condominiums.
18.10.057 Maximum Building Footprint
The maximum total footprint of all residential structures located on a lot in the Low Density Residential District shall
be limited to 35% of the lot area, provided:
1. The maximum footprint is reduced by 0.125% for each 100 square feet of lot area in excess of 6,500 square feet
and less than 19,000 square feet;
2. The maximum footprint shall be 4,000 square feet for lots between 19,000 square feet and 32,670 square feet;
3. The maximum footprint shall be 5,000 square feet for lots between 32,760 square feet and 43,560 square feet,
4. The maximum footprint shall be 6,000 square feet for lots over 43,560 square feet; and
5. For lots less than 6,500 square feet in size, the maximum total footprint shall be the area defined by the application
of the standard setback requirements set forth in the applicable Basic Development Standards, up to a maximum
of 2,275square feet.
15
Below is a table listing single family development standards in nearby jurisdictions
Building Envelope
MAxIMttlhi I
81.171 DING
-OGHT I
F j
1
Kent
Jurisdiction
Standard
Tukwila
stry /35'
30' to roof
Max. Height
mid -point
Min. Lot
60', 70' 50', 60'
Area
6,500
Lot Width
50'
15', 20'
35%(2,275)
10'
at 6,500 sf,
garage 20'
setbacks
only limit
Max. Lot
below 6,500
Coverage
sf
Setbacks:
20'
Front
20'
Second
Front
10'
Side
5'
Kent
Renton
2.5
stry /35'
2 stry /35' 2 stry /30'
7,600
8,000 4,500
45%
60', 70' 50', 60'
50'
Corner Corner
SeaTac Surien
30' 35'
5,000 to
15,000 7,200
50'
Seattle
30'+ 5' for
roof
5,000
None
35% or
1,000+
15%
(1,750) for
lots under
5,000 sf
20'
10'
5
Smaller of
25' or 20%
lot depth
Rear 10'
Impervious
Surface
5' 25' 20' 15' 5'
70%
60%
16
Greater
Greater
of 2,500sf
of 2,500sf
45%
or 35%
or 35% 35%
35%
15', 20'
10'
30'
garage 20'
20'
15', 20'
10'
20'
garage
20'
15' Total,
5'
5' min.
5' 5'
5'
5' 25' 20' 15' 5'
70%
60%
16
Methods of Calculating Building Height
Building Height is defined in the Zoning Code (TMC 18.06.100) as:
"Building height" means the height of a building as calculated by the method in the Washington
State Building Code.
The Washington State Building. Code defines Building Height and the Grade Plane as:
Building Height: The vertical distance from grade plane to the average height of the highest
roof surface.
Grade Plane: A reference plane representing the average of the finished ground level adjoining
the building at all exterior walls. Where the finished ground level slopes away from the exterior
walls, the reference plane shall be established by the lowest points within the area between the
building and the lot line or, where the lot line is more than 6 ft (1829 mm) from the building
between the structure and a point 6 ft (1829 mm) from the building.
Height Limit
Actual Grade
Average Grade
..4
17
b) In order to allow the structures to better respond to the topography of sloping sites a
structure will be allowed to adjust the points at which height is measured. This may be
accomplished by establishing separate grade planes at intervals of least 15 feet for
different sections of the structure.
Height limit
I 15'
25' Section 3
15'
Section 2
r
Section 1
s
0
,overage Grade or lowest Grade for each section
Additionally, the city may require a topographic survey from a licensed land surveyor when the
existing grade will be disturbed to accomplish the construction or when the final height of the
new structure in the area where grade is being disturbed is within 2 feet of the allowed height
limit for the structure as measured above the existing or finished grade.
im
City of Tukwila
Community Affairs and Parks Committee
COMMUNITY AFFAIRS AND PARKS COMMITTEE Meeting Minutes
October 10, 2011 5 :00p.m.; Conference Room #3
PRESENT
Councilmembers: Verna Seal, Chair; Joe Duffie and De'Sean Quinn
Staff: Derek Speck, Peggy McCarthy, Brandon Miles, Minnie Dhaliwal, Jack Pace and Kimberly Matej
Guests: Sandra Kruize
CALL TO ORDER: Committee Chair Seal called the meeting to order at 5:02 p.m.
I. PRESENTATIONS No presentations.
H. BUSINESS AGENDA
A. Crisis Diversion Facilities: Ordinance Repeal and Ammendment
Staff is seeking Council approval to repeal Ordinance No. 2332 regarding the location of Crisis Diversion
(CDF) and Crisis Diversion Interim Facilities (CDIS) within the City of Tukwila. This repeal is being
requested as a result of a decision made by the King County Superior Court on September 16, 2011, which
overturned a previous decision by the Central Puget Sound Growth Management Board (Board).
Ordinance No. 2332 expanded the location of the above facilities in response to the Board's assertion that a
previous ordinance (No. 2287) did not comply with the provisions of the Growth Management Act. Since
Superior Court has reversed the Board's decision, the City is now able to repeal Ordinance No_ 2332, and
revert back to original Ordinance No. 2287.
In addition to the repeal, staff is requesting an amendment to Ordinance No. 2287, which would include a
revised definition of CDF /CDIS facilities to be consistent with State legislation. This revised definition was
included in Ordinance No. 2332. A public hearing will be scheduled on this item for the October 24 COW.
UNANIMOUS APPROVAL. FORWARD TO OCTOBER 24 COW FOR DISCUSSION AND
PUBLIC HEARING.
B. Low Densitv Residential Zone Development Standards
Staff is seeking Committee direction on how to proceed with policy standards relative to low density
residential zone development. This item originally came forward to Council in 2007 in response to concerns
regarding development of residential infill that did not appear to be compatible with existing structures.
Concerns regarding such infill were not completely addressed at the time, and staff is now seeking policy
direction from the Committee regarding such standards.
After discussion, the Committee Members determined that it is in the best interest of the community for staff
to review the calculations for building height in regards to infill and existing structures while balancing the
needs of the community without discouraging development. This item will move forward to the Planning
Commission for review and work as appropriate and return to Committee and Council with a
recommendation. The Committee suggested that other issues such as setbacks, lot sizes and variances in
regards to low density residential development be looked at during the Comprehensive Plan review process.
FORWARD TO PLANNING COMMISSION FOR REVIEW AND RECOMMENDATION.
III. MISCELLANEOUS
Meeting adjourned at 5:33 p.m.
Next meeting: Monday, October 24, 2011 5:00 p.m. Conference Room #3
f Committee Chair Approval
Mi fes b KAM.
19
c
Attachment B
City o f 1 UKWita
Planning Commission
Planning Commission (PC) Minutes
Date: January 26, 2012
Time: 6:30 PM
Location: City Hall Council Chambers
Present: Brooke Alford, Chair; Thomas McLeod, Vice Chair; Commissioners, Louise Strander, David
Shumate, and Jeri Frangello- Anderson
Arrived: Commissioner, Mike Hansen arrived at 6:35 PM
Absent: Commissioner, Aaron Hundtofte
Staff: Nora Gierloff, Deputy DCD Director, Minnie Dhaliwal, Planning Supervisor, and Wynetta
Bivens, Planning Commission Secretary
Chair Alford opened the public hearing at 6:30 PM.
Minutes: Commissioner McLeod made a motion to adopt the December 15, 2011 minutes. Commissioner
Strander noted one correction and seconded the motion. The motion was unanimously
approved. Correction: Commissioner Jeri Frangello- Anderson, was absent at the 12/15/11
meeting.
PLANNING COMMISSION PUBLIC HEARING
CASE NUMBER: L12 -001
APPLICANT: City of Tukwila
REQUEST: A series of proposed housekeeping code amendments ranging from code
clarification to policy decisions about allowed uses and development
standards.
LOCATION: City wide
Minnie Dhaliwal, Planning Supervisor, Department of Community Development presented the staff
report. She gave a brief overview on the proposed code amendments. Similar housekeeping code
amendments were last updated in 2009.The current meeting and legislative approval process was
explained. Also, background and history was provided on the proposed code amendments, discussion
followed.
PROPOSED CHANGES:
Site Specific Rezones
The State law requires only one public hearing for quasi-judicial site specific rezones, which typically
also involve changes to the Comprehensive Plan map, as the Zoning and Comprehensive Plan maps are
identical in Tukwila. However, the City is currently holding two public hearings and several Council
Committee meetings. The city attorney has advised that the process needs to be changed to meet the
State law. Therefore, staff is asking the Planning Commission to make a decision between Option 1
Option 2b as drafted in the 1/27/12 PC packet. Staff is recommending option 1.
There was extensive discussion on the proposed options, and potential revisions to the proposed
language.
Page 1 of 4 21
PC Hearing Minutes
January 26, 2012
ACTION: Option 1 Staff was asked to provide the Commission with more information and
clarification on what the role of the Commissioners is pertaining to giving, gathering, and
sharing information in a public meeting, and whether option 1 will involve making a
recommendation to the City Council by the Planning Commission.
Single Familv Design Standards
Entered into the record was a public comment letter by Sandra Kinzie, Tukwila resident, that was
received on January 26, 2012, and it was handed out to the Commissioners at the public hearing.,
In 2004, the Zoning Code was amended requiring the same design standards for homes built on site and
manufactured homes. In response to a citizen complaint staff briefed the Community Affairs and Parks
Committee (CAP) in October 2011, regarding different options of regulating the bulk and size of single
family dwelling units. This was in response to a complaint regarding houses being built that are too
large in their neighborhood. The committee gave staff directions to amend the method of calculating
building height on sloping lots.
Recently, another Tukwila resident raised an issue with the City Council regarding the current design
standards, which prevent the replacement of a single -wide manufactured home with a much better
manufactured home, as it did not meet some design standards. The current standards require all homes
to have a minimum roof pitch of 5:12 and the front door to face the street.
After discussion on this issue, the PC approved Option 1:
ACTION: Amend the Single Family Design Standards to allow the replacement of a single wide
mobile home with a newer and larger manufactured home, a one -time allowance. Staff will
draft some qualifying language addressing what the community is gaining from allowing
this waiver.
PUBLIC TESTIMONY:
Gary Singh, Developer, expressed concern with changing the building height rules that have been in
effect for a very long time. He said the City has slopes, which will dramatically change the size of the
houses with the new method of calculating building heights. Mr. Singh asked if Attachment G could be
looked into. He talked about building height comparisons of the surrounding cities: Kent, Renton, and
Burien, stating they allow 35 ft. structure heights and Tukwila is 5 ft. lower than the other three cities.
He said that he wonders why Tukwila wants to lower the building heights more. He said he thinks that
the 30 ft. limit is great but if it is changed, it's going to create a lot of complications. Mr. Singh said if
someone can build a bigger house, he wonders why it is not allowed.
Staff noted that in 2007, the City Building Official looked at the referenced Attachment G.
Explanation was given on Tukwila and the methods of calculating building height by surrounding cities.
Commissioner Alford stated that Tukwila does have homes that are built out of scale, and that they
distract from the community. She said efforts should be made to respond to the land and the
surrounding community.
Staff walked through the proposed changes listed in Attachment F and Attachment I. The PC
discussed and approved staff's proposed recommendations with the following changes:
22 Page 2 of 4
PC Hearing Minutes
January 26, 2012
Attachment F;
Page 2: Correct the name of the park to Duwamish Hill Preserve.
Page 5: Building Height, add the word "at" to state that the different grade planes be of intervals at least
15 feet.
Page 6: Add the phrase "or its successor" after Department of Early Learning.
Page 8: Landscape Plan Requirements section, add the following clarifying language "dead or dying
trees as determined by a certified arborist"
Page 8: Loading Space Requirement section Eliminate this section
Page 9: Filing of Plans section, change the word "restriping" to "reconfiguring with some thresholds,
such as adding new spaces, changes to landscaping islands and fire lanes.
Discussion of the proposed changes related to manufacturing uses listed under Attachment I followed.
The discussion focused on the following use that is permitted in C/LI zone, "Manufacturing,
processing and/or assembling of electrical or mechanical equipment, vehicles and machines
including, but not limited to, heavy and light machinery, tools, airplanes, boats or other
transportation vehicles and equipment
Commissioner Alford asked, "Why are manufacturing uses that have significant potential for causing
environmental pollution, such as noise, smoke, and dust, permitted in the Commercial Light Industrial
(C/LI) area." She said, "It doesn't seem appropriate for the zone.
Ms. Dhaliwal stated that she looked into this matter further to understand what the category means,
where it is allowed, and what the legislative intent was when it was adopted in 1995. She said it is a
permitted use in C/LI, HI, MIC/L, MIC/H zones, and is a conditional use in TVS. It is likely that it was
permitted due to some existing business. It is a broad category and the scale of products being
manufactured could be small or big under this zone.
Ms. Dhaliwal stated if the other Commissioners felt this was an issue that they could consider the
following options:
1. Recommendation that the vehicle, auto and boat manufacturing be moved to a Conditional Use in
C/LI. If this option is selected then there should be a provision that before it goes to the City
Council there is additional notice provided to the property owners of this zone informing them of
the options. This would allow property owners a chance to weigh in at the City Council public
hearing.
2. Leave as staff has written.
3. No change at this time, and look at it more comprehensively later.
She said in the past there was some sensitivity to making decisions that caused existing businesses to
become non conforming, and that should be taken into consideration, and proper notice be given before
making any changes that exceed the purview of housekeeping code amendments.
Nora Gierloff, Deputy DCD Director, commented that the mildest approach with the least impact would be
Page 3 of 4 23
PC Hearing Minutes
January 26, 2012
to make it a Conditional Use, which would allow some additional control for new uses but it would not make
any existing uses non conforming.
Ms. Dhallwal said that if the Commission wants to make a recommendation to the City Council, then she
suggests notifying the property owners in the C/LI zone, and holding a public hearing on the proposed
change.
Commissioner Alford asked for the other Commissioners opinion on the issue. Discussion on this issue
continued during deliberation.
There were no additional comments.
The public hearing was closed.
The PC deliberated.
At the next meeting, staff will provide the PC with a memo of the requested information on the Site
Specific Rezones, Option 1, with an attached ordinance of all of the other proposed changes. The PC
will complete deliberation on the revised ordinance, and then make a recommendation to forward to the
City Council.
The Commission took a vote regarding notifying property owners that the PC would be holding a public
hearing to change vehicle and boat manufacturing to a Conditional Use in the C/LI. Four
Commissioners were in favor, Commissioners Strander and Hansen were opposed.
CONTINUANCE:
The hearing will be continued to February 23, 2012, at which time staff will return with more specific
ordinance language. Staff will also send out a notice to the property owners in the C/LI on the proXosed
changes to manufacturing uses and inform them of the public hearing continuance on February 23
DIRECTOR'S REPORT:
Anthony Ritch, Regional Senior Vice President, Westfield, is tentatively scheduled to attend
the February 23 meeting and provide an update on the mall.
Work continues on the TUC Plan, staff is not certain it will be ready to bring back to the PC in
February.
A training opportunity was shared with the PC, if interested they can contact Nora, or Evie
Boykan, Tukwila Human Services Program Manager to RSVP.
Greater Youth Involvement, community outreach,- Staff said they are unable to take on this
project at this time, and asked if anyone would be interested in taking on this project, and
developing a proposal to be submitted to the Mayor. Nora asked to be notified if anyone is
interested.
Staff inquired whether the link to review their PC packet on laserfiche electronically is
sufficient, or whether they would also prefer to have a packet mailed to them.
Submitted By: Wynetta Bivens
Planning Commission Secretary
Adjourned: 9:22 PM
Adopted: 02/23112
24 Page 4 of 4
City o f Tukwila
Planning Commission
Planning Commission (PC) Minutes
Date: February 23, 2012
Time: 6:30 PM
Location: City Hall Council Chambers
Present: Brooke Alford, Chair; Commissioners, Louise Strander, Mike Hansen, David Shumate, Aaron
Hundtofte, and Jeri Frangello- Anderson
Absent: Vice Chair, Thomas McLeod
Staff. Nora Gierloff, Deputy DCD Director, Minnie Dhaliwal, Planning Supervisor, and Wynetta
Bivens, Planning Commission Secretary
Chair Alford opened the public hearing at 6:30 PM.
Minutes: Commissioner Strander made a motion to adopt the January 26, 2012 Planning Commission
minutes. Commissioner Hansen seconded the motion. The motion was unanimously approved.
SPECIAL PRESENTATION:
Antony Ritch, Regional Senior Vice President, Development, Westfield Shopping Mall, gave a presentation
regarding the mall's vision at the request of the Planning Commission. Mr. Ritch expressed their pride in being a
true partner and investing in the community. He said that it is through the shared visions and partnerships that
they are able to achieve the best results for the community, customers, retailers, and investors. Recently,
Southcenter won a "gold" award for the mall expansion. Mr. Ritch said the award is a very prestigious award in
the industry, and was a real compliment to the City, and the team, for the remodel accomplishment, which was
achieved under the City's current planning codes.
Westfield became in involved with the TUC Plan in 2002, and is interested in continuing to work with staff on the
revised draft TUC Plan. They have some concerns with the original TUC Draft, which they have discussed with
staff. They feel that the proposed development regulations are not economically viable for developers. Concern
was expressed with the way the code was written in the previous draft. And also with the following language,
`the shopping industry shift is away from internal focused malls to more open air malls', Westfield felt the
previous draft Plan was far too prescriptive, and could be an issue for redeveloping the assets with a very specific
form of development. A Canadian pension fund investor has purchased the largest ever real estate investment
with Westfield for a 45 percent stake of Southcenter and a number of other development assets. Mr. Ritch said
they look forward to continuing to invest in Southcenter and being part of the next evolution of Tukwila.
Mr. Ritch said they do not want to discourage investors. He stated that they share the vision for the Southcenter
region to become more diversified with residential and office uses. They want to work with the City, but they
need assurance that the infrastructure is in place. Public transportation, the roads, and connectivity are extremely
important. However, they can't continue to invest if there is a risk that retailers and investors are going to go
elsewhere due to better planning environments in which they can work, and this is a major concern. Mr. Ritch
said that Westfield looks forward to receiving the next draft of the Plan and participating in conversations. He
said the results of the Southcenter remodel have been fantastic, and they are very proud to say that Southcenter is
extremely strong and has come through the recession in a very solid fashion, and they think that the product is
truly world class.
Commissioner Hansen, said that he concurs with many of the things Mr. Ritch said, and he believes it's the right
direction for the TUC Plan. Mr. Hansen said Westfield is the engineer for Southcenter, moving forward. He said
Page 1 of 5
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PC Hearing Minutes
February 23, 2012
transportation will be critical to how people continue to move through the TUC and have the good planning
development that everyone wants to have. He also thanked Westfield for being part of the community and
commended them on doing a great job.
Commissioner Hundtofte asked what in particular is still outstanding for Westfield with the second draft.
Mr. Ritch answered that they provided a very detailed list of concerns in the original draft and they have not
received any new information on which to comment. Once they receive new information, they will put together
detailed comments. He also said that they would be happy to come back and discuss their comments.
Additional comments from the PC The Commissioners thanked Mr. Ritch for the presentation, congratulated
Westfield on winning the gold award, and expressed their appreciation for having Westfield in the City.
Commissioner Alford asked if Westfield had a 10, 20, or 50 year plan for a vision for this property in their
organization for the future. Commissioner Alford also asked if Westfield could potentially see having residential
housing above the mall one day.
Mr. Ritch said they face a challenge having plans that are as far out as 10 -50 years. He said that five years out is
even difficult to predict with all of the changes that happen and they are constantly adjusting their plans. He said
they want to continue to diversify the assets, keep open communication with the community and retailers, and
evolve plans from there. He said the most important thing to do is to keep investing. Regarding housing above
the mall, Mr. Ritch said what drives the ability to do mixed use is a lot of the infrastructure. He said it's very site
specific and it depends on the timing and the demand.
Co mmissi on Shumate expressed concern regarding the price of gas continuing to rise in the next few years and
the impact it's going to have on people who normally drive to the mall. He said he hopes there will be a
contingency plan on getting people from the train station, light rail, or the bus, to the mall.
Mr. Ritch stated they are very adept at working with cities to integrate public transportation, and would be more
than willing to work with the City on this issue.
PLANNING COMMISSION PUBLIC HEARING
1/26/12 CONTINUANCE:
Chair Alford swore in those wishing to provide public testimony.
CASE NUMBER: L12 -001
APPLICANT: City of Tukwila
REQUEST: A series of proposed housekeeping code amendments ranging from code
clarification to policy decisions about allowed uses and development standards.
LOCATION: City wide
Minnie Dhaliwal, Planning Supervisor, Department of Community Development, explained that at the 1/26/12
public hearing it was proposed to add sub headings to the manufacturing uses that are allowed in the various
zones including those allowed in the Commercial and Light Industrial (C/LI) zone. The discussion focused on one
of the permitted uses listed as manufacturing of tools, vehicles, and machinery, and whether it should continue to
be listed as a permitted use or changed to a conditional use. Since the 1/26/12 public hearing, staff has notified all
of the property owners of the C/LI zone that the Planning Commission is reviewing this particular use. Staff
received three comment letters on this issue, which were provided to the Commissioners. Staff noted that the C/LI
zone is spread out throughout the city and only a small portion of the overall area is adjacent to residential areas.
Commissioner Strander disclosed that she informed Nora Gierloff that she owns property in the C/LI. Ms.
Page 2 of 5
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PC Hearing Minutes
February 23, 2012
Gierloff thanked Ms. Strander for disclosing the information and stated that it is fine for her to participate in the
public hearing for the Citywide zoning change.
IN tll 1 h
Paul Sheehan said he has owned a family business in Tukwila for 35 years. He expressed concern with a
comment made pertaining to whether manufacturing uses were zoned appropriately. He said he is hoping the
City is not taking the approach that they do not want any manufacturing uses in the area. Mr. Sheehan said that
they like it in Tukwila and want to stay.
Rick Bellin, Vice President, CFO for Harnish Group, and subsidiary companies, NC Machinery and NC Power
System, said that he is very alarmed there is consideration for a Conditional Use. He said they work with light
and heavy machinery including total rebuilds of tractors, and the proposed zoning change would affect them
tremendously. He said it would harm a long term resident that's been in Tukwila for over 40 years, who
generates high sales taxes for the City. He said they have never created any type of environmental issue. And he
strongly urges that the zoning is not revised. In response to a question from Commissioner Alford, he said a
Conditional Use would put a limitation on the use of their property.
Robin Sweiger, business owner, said that she doesn't see where this environmental impact issue has come from.
She said that she is incredibly worried about the zone being changed. She said all of the businesses in the area
work together and that the area has been cleaned up.
Gary Singh, Developer, discussed the issues addressed in the comment letter he submitted. He said that there is a
language interpretation issue for one of the TMC codes. Mr. Singh is proposing a different method of calculation
for the Maximum Building Footprint (TMC 18.10.057). Mr. Singh spoke in support of a proposal to allow the
Director of Community Development to approve a 10% allowable variance. (staff clarified that the building
footprint issue was not discussed at the 1/26/12 public hearing but was discussed at the Community Affairs and
Parks Committee meeting in October 2011) Mr. Singh urged the Planning Commission to consider his requests.
Bruce MacVeigh, Civil Engineer, said he has worked on several projects with Mr. Singh. He spoke in support of
Mr. Singh's proposed method of calculation for Maximum Building Footprint and spoke favorably of the homes
Mr. Singh builds.
Mike Overbeck, Tukwila property owner of a proposed 31 unit townhomes development, said that he is very
passionate about being proactive and helping the city. He spoke in support of developers like Gary being able to
invest in the City. He said he hopes there is a way to resolve Mr. Singh's issues and move forward. He
commented that other municipalities would find a way to make this work. Mr. Overbeck said that he wants to
continue to participate in bringing businesses, people, and developers into Tukwila.
Louie Sanft, Tukwila property owner, said he has several properties that are zoned C/LI. He said that he has a
new project he is developing along Interurban Ave that could possibly be affected by changing the zoning, as well
as some other existing properties. He said this change seems random and that he has not heard of any reasons
why the changes need to occur. Environmentally, he said that the Department of Ecology is really good at
watching businesses, as well as King County Industrial Waste Water Division, and the City of Tukwila Fire
Department. He said that he doesn't think changing the uses of businesses that are law abiding, following the
rules, and doing everything appropriately, would be fair to landlords. He also said a Conditional Use could limit
businesses from opening new businesses and some businesses may move to a different city. Mr. Sanft requested
the manufacturing use is not changed to a Conditional Use because it would be discouraging to future businesses
that may want to move here.
There were no additional comments.
The public hearing was closed.
The Planning Commission deliberated.
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PC Hearing Minutes
February 23, 2012
Commissioner Shumate asked what the Conditional Use entails and how it would involve property owners.
He also asked whether staff notified the affected residents surrounding the C/LI of the public hearing. Staff
responded that they only notified the property owners in the C/LI, and that the standard notice was published
in the newspaper.
Ms. Dhaliwal explained that Conditional Uses require an additional review process for a use to be approved. It
involves a hearing, notifying all property owners within 500 ft. of the property, staff making a recommendation to
the Hearing Examiner, the Hearing Examiner preparing the finding and facts, and making a decision on the
proposal. There is criteria in the code for a Conditional Use for which the applicant will need to submit reports
and justify that it is not an impact to the area. New construction structures over 1,500 sq. ft. must go through
Design Review, which is approved administratively for up to 10,000 sq. ft. For structures, over 10,000 sq. ft.
there is a hearing process. In addition, structures larger than 12,000 sq. ft. must go through the State
Environmental Policy Act (SEPA). Design Review and SEPA are already in the code and may be triggered for
new development. Permitted uses do not require land use approval, they require a business license, and they may
need a building permit for construction inside the building.
Commissioner Hundtofte asked what was driving the proposed Conditional Use amendment. He also asked for
some clarification regarding mixed uses in the NCC, and said if the amendment is approved Conditional Use
should apply to the NCC also, because it is lighter than C/LI.
Commissioner Alford stated that she raised the proposed Conditional Use amendment for manufacturing, based
on language in the basic housekeeping standards. She said there was one classification that would have
significant impacts in the C/LI, and she inquired whether it was appropriately zoned. She commented that she
doesn't think that businesses should be penalized but that the community should have input regarding what is
going on in their environment.
Co Stander said there are long term existing businesses that have been a part of the community; and
that she personally would be reluctant to put any sort of Conditional Use on their previously zoned activity.
Commissioner Hansen concurred with Commissioner Strander. He said that he votes in favor of leaving things
the way they are.
Commissioner Hundtofte asked if the proximity to the water could be governed by the Shoreline Master Plan
and if other overlays, rather than just zoning, could cover it.
Ms. Dhaliwal said that the properties that abut the river would apply for new construction or the uses section of
the SMP. In addition to the local agencies, there are regional bodies such as the Department of Ecology that
would regulate clean air emissions. Under the Conditional Use criteria, in addition to the hearing, there would be
documentation on what other overlays cover for regulations.
Commissioner Alford asked if all of the other agencies and the current codes would protect AllenTown residents
from redevelopment in the area from heavy Industry and impacts from noise, vibration, dust, etc.
Ms. Dhaliwal said that for any new development that triggers SEPA, there would be a review done for impacts to
the environment. Also, an Environmental Impact Statement will need to be prepared to address the impacts for
projects that have a significant impact.
COMMISSIONER HANSEN MADE A MOTION TO RETAIN THE LANGUAGE IN
ATTACHMENT `I' FOR MANUFACTURING USES IN THE C/L.I WITH NO CHANGE.
COMMISSIONER STRANDER SECONDED THE MOTION. COMMISSIONER ALFORD
CALLED FOR A ROLL CALL VOTE. COMMISSION SHUMATE OPPOSED. THE MOTION
PASSED 5 -1.
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PC Hearing Minutes
February 23, 2012
Commissioner Alford expressed a concern with having permitted uses causing impacts; she said she hopes
this issue can be addressed by a more comprehensive look in the future.
There was discussion on Mr. Singh's proposal to change the building footprint calculations. Staff noted that
this change could only be implemented if the policy is changed for the way single family houses are
regulated. It was the consensus of the Commissioners to retain the current building footprint calculations.
Quasi- Judicial Rezone
Staff returned with clarifying information as requested by the PC at the 1/26/12 on their role pertaining to the
quasi-judicial rezone process. The decision was to keep this item as a Type 5 decision unless Council
delegates the authority to the PC for them to hear as a Type 4 decision.
COMMISSIONER HANSEN MADE A MOTION FOR TWO OPTIONS FOR THE PUBLIC
HEARING PROCESS FOR SITE SPECIFIC REZONES:
OPTION 1: STAFF HOLD ONE INFORMATIONAL PUBLIC MEETING PRIOR TO TYPE FIVE
DECISIONS GOING TO CITY COUNCIL (PLANNING COMMISSION ATTENDANCE
OPTIONAL); THEN CITY COUNCIL HOLD A PUBLIC HEARING AND MAKE A FINAL
DECISION.
OPTION 2: IF COUNCIL PREFERS, THE PLANNING COMMISSION HOLD THE PUBLIC
HEARING AND FORWARD THEIR RECOMMENDATION TO THE CITY COUNCIL; THEN
CITY COUNCIL HOLD A CLOSED RECORD PUBLIC HEARING AND MAKE A FINAL
DECISION.
COMMISSIONER STRANDER SECONDED THE MOTION. The decision was to keep this item as a
Type 5 decision (Option 1) unless Council delegates the authority to the PC for them to hear as a Type
4 decision (Option 2). ALL WERE IN FAVOR.
Other Reuested Housekeenina Chances
The remaining list of proposed housekeeping amendments, including the changes requested by the Planning
Commission at the January meeting are listed in the draft Ordinance.
COMMISSIONER SHUMATE MADE A MOTION TO APPROVE THE DRAFT ORDINANCE
WITH AMENDED RECOMMENDATIONS. THE ORDINANCE WILL BE FORWARDED TO THE
CITY COUNCIL FOR THEIR FINAL RECOMMENDATION. COMMISSIONER HANSEN
SECONDED THE MOTION. ALL WERE IN FAVOR.
DIRECTOR'S REPORT:
Sign Code housekeeping items:
Nora stated that there were not provisions in the Sign Code for signs to appear on gas station
canopies staff is proposing to add some modest signage allowance for gas station canopies;
Staff is proposing changes to the Sign Code that will streamline the permit process and allow
businesses to amend their existing sign permit without being charged a fee.
Staff will present changes to the CAP on 3/12/12, since they are very minor non policy oriented
changes they are going to request for approve without returning to PC with the proposed changes.
Staff contacted Nate Robinson in Tukwila Parks and Recreation regarding a youth outreach group
attending a PC meeting and the PC using this as an opportunity to do some community outreach with
the youth. Nate works with the Tukwila high school group of teens on college prep and community
service. If there is an interest for Nora to pursue this, please let her know.
Submitted By: Wynetta Bivens
Planning Commission Secretary
Adjourned: 8:40 PM
Adopted: 03/22/12
Page 5 of 5
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30
Attachment C
City of Tukwila
Community Affairs and Parks Committee
COMMUNITY AFFAIRS AND PARKS COMMITTEE
Meeting Minutes
April 9, 2012 5: 001. m.
PRESENT
Councilmembers: Kathy Hougardy, Chair: Joe Duffle and Allan Ekberg
Staff: David Cline, Peggy McCarthy, Jack Pace and Kimberly Matej
CALL TO ORDER: Committee Chair Hougardy called the meeting to order at 5:05 p.m.
I. PRESENTATIONS
No presentations.
H. BUSINESS AGENDA
A. Tukwila Municipal Code: Draft Amendments
Staff is seeking Council approval of several draft ordinances amending the Tukwila Municipal Code (TMC)
as outlined below. The Committee for«-arded these items to the Planning Commission for review and
recommendation in Januan The Planning Commission held a public hearing on January 26, 2012, and
Februan 23, 2012.
Title 5: Business License Regulations and Title 18: Zoning Code
Revision of Comorehensive& Zoning Plan Amendment Process
The Cite Attorney has advised there is a need to ensure that site specific rezones, which are quasi- judicial
in nature, are processed definitively different than area -wide rezones, which are legislative in nature.
Under state lacy, quasi judicial matters should have only one open record hearing as compared to
legislative matters which can include several public discussions and/or meetings.
In order to address this issue, the Planning Commission recommends the following change to the TMC:
Site specific rezones should be handled as Type 5 decisions which are quasi judicial made by the City
Council at a Regular meeting (will not go through Committee process or COW) immediately following an
open record hearing (also known as a public hearing). Type 5 decisions may only be appealed to Superior
Court. UNANIMOUS APPROVAL. FORWARD TO APRIL 23 COW FOR PUBLIC HEARING
AND DISCUSSION.
Sing Familv Design Standards
Building Height. At the October 10, 2011, Community Affairs and Parks Committee meeting, the
Committee forwarded calculations for building height in regards to infill and existing structures to the
Planning Commission for review and recommendation. This item was sent to the Commission for review
in response to the interest of balancing the needs of both infill and existing structures within the
community without discouraging development (i.e.: new larger height homes being built in areas of
smaller height homes).
Currently, the TMC calls for building heights to be regulated by the Washington State Building Code.
The Planning Commission recommends continuing to calculate the building height per the Washington
State Building Code, except if property is zoned residential and the slope of the property is 15% or larger.
If the slope is 15% or larger, the building height would be calculated in one of two ways: either establish
the plane from the lowest finished or existing grade adjoining the building at any exterior wall: or
establish grade planes at intervals of at least 15 feet for different sections of the structure. Staff distributed
a diagram displaying a comparison of building height standards with surrounding cities, Tukwila's
current calculation and the proposed calculation.
31
Community Affairs Parks Committee Minutes
Acrit 9, 2012 Page 2
Since this item began in 2011, and Committee membership has changed since referral to the Planning
Commission. the Committee prefers this item more forward for full Council discussion without a
recommendation. NO COMMITTEE RECOMMENDATION. FORWARD TO APRIL 23 COW
FOR PUBLIC HEARING AND DISCUSSION.
Manufactured Homes
On January 9. 2012. the Community Affairs Parks Committee forwarded the replacement of existing
single -wide manufactured homes to the Planning Commission for review and recommendation. The
Planning Commission recommends waivers from the required 5:12 roof pitch or street facing front door
for owners of single -wide manufactured homes if the proposal includes replacement of a single -wide with
a double -wide. This waiver would onlN be granted one time per property and the change should result in
an aesthetic improvement to the neighborhood. UNANIMOUS APPROVAL. FORWARD TO APRIL
23 COW FOR PUBLIC HEARING AND DISCUSSION.
Other
Several additional housekeeping items are incorporated into this draft amendment including: updating
references, clariffi ing code interpretations and language, typographical errors. definitions and procedures.
The informational memo summarizes specific changes in more detail as well as the strike -out underline
changes provided in the draft ordinance. UNANIMOUS APPROVAL. FORWARD TO APRIL 23
COW FOR PUBLIC HEARING AND DISCUSSION.
2. Chapter 8.07. Controlled Substances, Paraphernalia, Poisons Toxic Fumes
This draft amendment updates the list of schools, parks, community- centers and libraries that are located
in designated drug free zones. Staff will check to see if post secondary schools should be included in the
drug free zone designation. Committee members offered some other updates /clarifications to the list.
UNANIMOUS APPROVAL. FORWARD TO APRIL 23 COW FOR PUBLIC HEARING AND
DISCUSSION.
3. Chapter 8.22: Noise
This draft amendment clarifies the notice requirements for noise variances. Specifically it adds wording
that requires written notice to residents within 500 feet of a location for which sound levels that will be
exceeded for 30 dads or less. An affidavit of distribution must be provided to the Cite. UNANIMOUS
APPROVAL. FORWARD TO APRIL 23 COW FOR PUBLIC HEARING AND DISCUSSION.
4. Chapter 8.23: Vehicle Storage and Parking on Single Family Residential Property
This draft amendment adds flexibilit -v to residential parking area limitations. Specifically, it allows for
director approval of exceptions with properties such as odd- shaped lots or lots that require a long
driveway, This change is meant to ensure irregularly shaped lots are not penalized. There is also reference
to this in Title 18 (landscaping). UNANIMOUS APPROVAL. FORWARD TO APRIL 23 COW FOR
PUBLIC HEARING AND DISCUSSION.
3. Chapter 8.28: Nuisances
This draft amendment corrects outdated zoning designation, specifically reference to City zone C -M
which is no longer a zone. UNANIMOUS APPROVAL. FORWARD TO APRIL 23 COW FOR
PUBLIC HEARING AND DISCUSSION.
h Chapter 8.45: Civil Violations
This draft amendment updates /corrects outdated section references, and refers to general chapters rather
than specific sections within a chapter. UNANIMOUS APPROVAL. FORWARD TO APRIL 23
COW FOR PUBLIC HEARING AND DISCUSSION.
7. Chapter 21.04: State Environmental Policy Act
This draft amendment clarifies public notice procedures for State Environmental Policy Act (SEPA)
applications and decisions. Specifically, staff is codift a process that is already being done, which is
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Communitv Affairs Parks Committee Minutes
Acril 9, 2012 Pace 3
the process of sending notice of application once an application is complete to solicit comments and the
notice of decision when the application is approved, is mailed to parties of record. UNANIMOUS
APPROVAL. FORWARD TO APRIL 23 COW FOR PUBLIC HEARING AND DISCUSSION.
III. MISCELLANEOUS
Meeting adjourned at 6:08 p.m.
Next meeting: Monday, April 23, 2012 5:00 p.m. Conference Room #3
k q q Committee Chair Approval
MinutV by KATO. Reviewed by MD.
33
34
Attachment D
Tukwila Cit)( Council Committee of the Whole Meeting
City Hall Council Chambers April 23, 2012 7:00 P.M.
MINUTES
COMMITTEE OF THE WHOLE
CALL TO ORDER/PLEDGE OF ALLEGIANCE
Council President Seal called the Tukwila City Council meeting to order at 7:04 p.m. and led the audience
in the Pledge of Allegiance.
OFFICIALS
Present were Verna Seal, Council President, Councilmembers Joe Duffie, Dennis Robertson,
Allan Ekberg, Kathy Hougardy, De'Sean Quinn, Kate Kruller.
CITY OFFICIALS
Jim Haggerton, Mayor; David Cline, City Administrator; Bob Giberson, Public Works Director;
Frank Iriarte, Public Works Deputy Director; Gail Labanara, Public Works Analyst; Nora Gierloff,
Community Development Deputy Director; Brandon Miles, Senior Planner; Minnie Dhaliwal, Planning
Supervisor; Rebecca Fox, Senior Planner; Mary Hulvey, Code Enforcement Officer; Peggy McCarthy,
Finance Director; Mary Miotke, Information Technology Director; Kimberly Matej, Council Analyst;
Melissa Hart, Acting City Clerk.
CITIZEN COMMENTS
Vanessa Zaputil, 15171 52 Avenue South, #5, reported on the success of the "April Pool's Day" event
held at the Tukwila Pool on April 21, 2012. She thanked Councilmembers Ekberg and Hougardy for
attending the event and Amy Kindell for the promotion of the event. She estimated over 250 children and
50 adults attended the event. The free event promoted water safety and included a "water carnival" for
the swimming activities. She expressed her appreciation for the continued community support of the
Tukwila pool.
PUBLIC HEARING
a. Mandatory garbage collection.
Frank Iriarte, Public Works Deputy Director, explained that staff published a public hearing notice to
advertise the hearing on the proposed mandatory garbage collection. Staff received 9 telephone calls
seeking clarification on this issue. Four of the citizens expressed their opposition to the mandatory
collection and five of the callers voiced their support. Mr. Iriarte reviewed the 3 options available to the
Council:
Option A: Reject proposal to implement mandatory garbage collection.
Option B: Defer the decision to implement mandatory garbage collection until a later date.
Option C: Approve the mandatory garbage collection services.
Through the Request for Proposal process, the City was able to secure a very low monthly rate for the
minimum service in the City's new solid waste contract.
Mr. Iriarte stated the collection fee for once -a -month trash pick -up service would be $4.75 per month,
which would include solid waste pick -up, recycling and participation in the City's special recycling events.
Implementation of mandatory collection would save current customers approximately $27,000 a year
collectively.
Councilmember Quinn asked how many King County cities have mandatory garbage collection
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Tukwila City Council Committee of the Whole Minutes
April 23, 2012
Page 2 of 9
Mr. Iriarte stated there are 14 cities within King County, including the City of Seattle, that have mandatory
garbage collection.
7:22 p.m. Council President Seal opened the Public Hearing.
Melissa Hart, Acting City Clerk, acknowledged receipt of 3 written comments received in the City Clerk's
Office relating to the proposed mandatory garbage collection. The following written comments were
referenced into the record:
1. An email from Paul Willoughby dated February 21, 2012, opposing the proposed mandatory garbage
collection in Tukwila. This email was distributed to the City Council on February 22, 2012.
2. An email from Ron and Julie Nyborg dated March 31, 2012, supporting the proposed mandatory
garbage collection in Tukwila. This email was distributed to the City Council on April 2, 2012,
3. A letter received April 23, 2012 from Diane McCleave opposing the proposed mandatory garbage
collection in Tukwila. This correspondence was distributed to the City Council on April 23, 2012.
Council President Seal called for public comments.
David Puki, 3748 South 152 Street, stated that he is a self hauler, composter and recycler, and after
expenses he turns a small profit at the end of the year from recycling. It is his opinion that he is being
compared, as a self hauler, to residents who illegally dump their trash, in an effort to require the
remaining 20% of Tukwila residents to subscribe to garbage collection services. He has had personal
experience with Waste Management in the past, and he would prefer not to deal with them again in the
future. He feels implementation of mandatory garbage collection is a punishment to the residents who
responsibly dispose of their refuse. There has been reference to a $0.64 savings for all current
subscribers if mandatory garbage collection is implemented. This selling point does not properly address
the issues of trash accumulation or illegal refuse dumping. The contract with the City will allow Waste
Management to request an annual rate adjustment for collection and disposal of up to 4.2 plus the
mandatory refuse surcharges and tax increases. The self haulers will only incur a $1.25 disposal rate
increase, now $20.00 at the King County Transfer Station. Bow Lake Transfer Station is currently being
renovated and upon completion, the new facility will offer more recycling and refuse options to the self
haulers. He feels the City should increase Code Enforcement's engagement with residents who have
violations such as accumulation of trash, overgrown blackberry bushes and other bulky items, before
implementing mandatory services on the 20% of residents who are self haulers. He stated he is against
the proposed mandatory garbage collection.
Jeanelle Baldwin, 5827 South 144 Street, stated she is speaking against the proposed mandatory
garbage collection within the City. She explained she was a self hauler for several years and due to
lifestyle changes, she chose to sign up for garbage collection. She feels mandatory collection is an
invasion of privacy. She has been very pleased with Allied Waste and she is sorry to hear of the
upcoming change to Waste Management. She said Tukwila is a transportation hub and she has
witnessed people driving through the City tossing their trash out the car windows. Those visitors are
creating the greater problem, and she asked if mandatory garbage collection would curb that activity. In
her experience, you can lead a horse to water and hope they drink, but you cannot force them to drink.
She feels it is unfair to force individuals to take a service they do not want.
Audrey Davis, 1334156 1h Avenue South, voiced her concern and opposition to the mandatory garbage
collection in the City of Tukwila. Ms. Davis complimented the Tukwila Parks Department for the reuse of
fallen leaves, greenery and the shaving of tree limbs within City parks. She stated it has been
scientifically proven that you can bury certain scraps down 12 inches in the ground, and those scraps will
provide nutrients to the surrounding soils.
Michael Wong, 4420 South 139 Street, voiced his opposition to the proposed mandatory garbage
collection. He feels the $0.64 savings for his family would penalize the 900 residents who choose to self
haul their trash and recyclables. He voluntarily subscribes to garbage collection, and he feels his
neighbors should also have that choice, and not be required because of mandatory collection. In his
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Tukwila City Council Committee of the Whole Minutes
April 23, 2012
Page 3 of 9
opinion, the individuals who are illegally dumping and littering within the City will not change their habits
with the implementation of mandatory garbage collection.
Diane Meyers, 13919 42 nd Avenue South, voiced her concern on the proposed mandatory garbage
collection. She stated by implementing the mandatory garbage collection, Waste Management would
have a guaranteed customer base, and would then have no incentive to do a good job. In her opinion,
there are good and bad sides to all situations, and she feels the good self haulers should not be
penalized and required to purchase a service they do not want. It is her opinion that mandatory collection
will not stop the illegal dumping within the City. She feels many garbage collection subscribers are
responsible for the trash along the roads due to overfull cans and dumpsters. She works for a company
in Renton where they have mandatory collection, and every Monday they find 1 to 2 truckloads of trash
that has been dumped at their collection site. Illegal dumping is a problem everywhere. She explained
several of the comments she has read on the "No Bothell Annexation" website referenced county
residents who do not want to become part of Bothell because of the mandatory garbage collection. This
attempted annexation has now failed twice. Additionally, with the recent increase of home burglaries, she
feels empty trash cans on the road would be an open invitation to burglars. Tukwila residents should be
given the choice whether to purchase a service they do not want or need, and the Council cannot
legislate responsibility.
Sharon Mann, 4452 South 160 1h Street, stated she supports mandatory garbage collection. She said
they have issues in their neighborhood where some residents accumulate large bulky items and others
who are not able to dispose of their trash. She explained her household used to be self haulers, and they
did not recycle because it was easier to dispose of everything at once. Currently they have garbage
collection, and over the years they have significantly increased their recycling and reduced their
disposable trash. She feels the $4.75 monthly rate would aid the senior population within Tukwila who
are not able to transport their garbage and recyclables to a transfer station. She commented that the
recent clean -up and trash removal that took place at the property on South 160 Street was costly, and
that clean -up was paid for by the taxpayers. She personally is in favor of mandatory collection, and she
feels the service would be beneficial to the community.
Fred Sherman, 13715 42 nd Avenue South, said he is against the proposed mandatory garbage
collection. He stated he has lived in the City for the last 37 years, and he has been responsible for the
disposal of his trash, recycling, yard waste and downed tree limbs. He enjoys disposing of his refuse
responsibly, and he is willing to pay a higher fee to haul his own trash on his schedule. The residents
should have the right to choose their services, and he asked the Council to reject the proposal of
mandatory garbage collection.
Bruce MacVeigh, 14245 59 th Avenue South, stated he has been a Tukwila resident since 1982. He is
very conservative about his trash, and he is a responsible recycler. He asked if it would be an issue if
mandatory collection was implemented and residents chose to continue to self -haul.
Roy Wilder, 13206 34 th Avenue South, submitted a Public Hearing speaker sheet stating he is on a
fixed income, and he should be able to decide what services he should have to pay with his limited
income.
7:59 p.m. Council President Seal closed the Public Hearing.
b. Housekeeping code amendments.
Minnie Dhaliwal, Planning Supervisor, explained the Council is being asked to consider housekeeping
code changes to the Tukwila Municipal Code. The proposed code amendments range from code
clarification to updating development regulations and streamlining the permit processes.
The first item for review is the proposal to refine the Comprehensive Plan Amendment and rezone
procedures to separate the legislative and associated quasi judicial process. The City Attorney has
advised staff that Tukwila needs to revise the way it reviews and processes quasi- judicial, site specific
rezones to ensure they are treated distinctly separate from legislative, area -wide rezones. The Planning
Commission has recommended keeping site specific rezones as a Type 5 decision, Option 1 as identified
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Tukwila City Council Committee of the Whole Minutes
April 23, 2012
Page 4 of 9
below, unless the City Council delegates the authority to the Planning Commission to hear site specific
rezones as Type 4 decision identified in Option 2.
Planning Commission recommendation Option 1:
Type 5 decision, with an informational meeting held by staff and the Planning Commission,
and the final decision is made by the City Council. There is no formal recommendation by
the Planning Commission, and the City Council can take new testimony at the public hearing.
1. Staff holds an informational meeting in an open house format. The notice of the meeting
is posted on the site, published in the paper and mailed to property owners within 500
feet of the property.
2. A formal public hearing is held by the City Council at a Regular City Council meeting, and
a decision is made the same night. Public notice is provided.
Planning Commission recommendation Option 2:
Type 4 decision, with open record hearing conducted by the Planning Commission and City
Council holds a closed record hearing on the Planning Commission's recommendation.
The Council asked clarifying questions of staff, and exchanged comments on this topic. After Council
discussion, there was consensus to follow the Planning Commission's Option 1 recommendation.
Ms. Dhaliwal conducted a detailed review of the remaining proposed code amendments as identified in
the April 18, 2012 Informational Memorandum, agenda pages 9 -15.
8:17 p.m. Council President Seal opened the Public Hearing.
Sharon Mann, 4452 South 160` Street, stated she was present to speak specifically on the Single
Family Design Standards as referenced on page 11 (paragraph B.) in the agenda packet. She explained
this item was discussed at a past Council Coffee Chat. As a real estate agent, she is pro development
and looking to have new houses built in the City. She is concerned with the proposed changes to the
code. Tukwila has some older homes that have deteriorated and others that could be better used. She
feels the proposed height calculation, using the lowest grade of the lot to calculate the overall building
height, would restrict new development, or cause a lot of new basement type homes. Construction of a
new home on a sloped lot would increase the amount of excavation required, and much of the house
would be inside the ground. The surrounding cities use an average height method. In the City of Renton,
they allow a 35 -foot building height, which is the high end of building height. She provided examples of
how a proposed home on a large lot (over 6,500 square feet) would be smaller in size than a new home
constructed on the City's standard 6,500- square -foot lots. It is her opinion that the proposed height
restrictions are anti development, and not conducive to the current standard of living. Today, families are
looking for 4 or 5 bedroom homes, and the proposed height restrictions would limit the size of any new
homes.
Gurdip Singh, 4645 South 148 th Street, indicated he is speaking against the proposed code amendment
relating to the allowable residential building height. He distributed his written comments for the Council to
review. In his opinion, if the Council approves the 30 -foot building height limit, developers would be
forced to eliminate the 3 1d floor from new home designs. Houses today are constructed with 9 -foot
ceilings, and with the recent changes in the energy codes, builders are not allowed to install mechanical
ductwork in exterior walls. With the energy code changes and a reduction in building height, residential
developers in Tukwila would be limited to constructing 1 -1/2 story homes.
Bruce MacVeigh 14245 59 1h Avenue South, explained he has been a licensed Civil Engineer for 32
years, and he has assisted other jurisdictions to calculate acceptable residential building height. He
voiced his concern relating to the proposed code amendments relating to the reduction of building
heights. The industry standard for residential building height is currently 35 feet, and the City's proposed
code amendments would reduce residential building height to 30 feet. He feels the proposed building
height limitation would increase the need for residential home builders to design basement type homes,
which are much more costly to construct.
Tukwila City Council Committee of the Whole Minutes
April 23, 2012
Page 5 of 9
Mike Overbeck, 4620 South 148` Street, expressed his support for development in Tukwila. He feels
attracting economic growth is important for the residential areas in the City, and he supports that growth.
He is also a developer who will have a future development in Tukwila and encouraged all parties to work
together to balance all the concerns and issues to move forward with new development.
8:32 p.m. Council President Seal closed the Public Hearing.
SPECIAL ISSUES
a. Discussion on implementation of a mandatory garbage collection program.
Councilmember Robertson indicated this item was discussed at the Utilities Committee meeting on
January 24, 2012. The committee members were unanimous in recommending the Council conduct a
Public Hearing.
Council President Seal explained there has been public testimony on the proposed mandatory garbage
collection, and the Council has three options to discuss:
Option A: Reject proposal to implement mandatory garbage collection.
Option B: Defer the decision to implement mandatory garbage collection until a later date.
Option C: Approve the mandatory garbage collection services.
Councilmember Robertson explained his family used to be self haulers, and he was opposed to the
implementation of mandatory collection. He stated there was a comment made during the Public Hearing
about the City's Code Enforcement, and increasing code enforcement. He expressed support for the
City's code enforcement team and commented on the expense associated with code enforcement. In
preparation of a decision on this item, he contacted his neighbors to inquire about their concerns on
mandatory garbage collection. His neighbors were not against the proposal, and they said the new
program would not stop the illegal dumping, although they thought it could help the issue. Another
concern that was voiced was regarding those residents who burn their trash and the subsequent increase
in air pollution. Mr. Robertson explained the cost of the program does not appear to be an issue, and it is
the "mandatory" implementation of the program that raises concerns. He voiced support for a trial period
of city -wide collection to see if the program would curb the illegal dumping and trash burning.
Councilmember Duffie voiced his concern about implementation of mandatory collection, and does not
like to force any type of service on the Tukwila residents. He used to be a self hauler and as several
factors have changed over the years, he appreciates the collection service. He concurred with
Councilmember Robertson's recommendation to implement the program for a trial period.
Councilmember Ekberg explained he has not seen any improvement relating to trash along the streets
and illegal dumping in the last 20 years. He said he is willing to support a trial period of mandatory
collection, with the caveat that the Council is able to cancel the program if there is not a noticeable
improvement of less roadway trash and overall cleanliness on a city -wide scale.
Councilmember Hougardy asked for clarification on the minimum monthly collection fee.
Frank Iriarte, Public Works Deputy Director, confirmed $4.75 is the minimum collection fee for once -a-
month service.
Councilmember Hougardy stated she is not willing to support mandatory collection at this time.
Councilmember Quinn relayed that at this time he is not ready to support implementation of mandatory
collection. He voiced his support for Code Enforcement, and feels mandatory collection will not improve
current illegal dumping issues, and he prefers staff Option B. He stated he would like to investigate
options that could help solve the issues the City has with repeat code enforcement offenders. He voiced
his support for Option B of the staff recommendation, to defer the decision until a later date.
Councilmember Krulier said garbage collection service is a convenience. She is a self hauler and she
enjoys the disposing of her trash and recyclables. Ms. Kruller indicated that she has not heard any
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Tukwila City Council Committee of the Whole Minutes
April 23, 2012
Page 6 of 9
compelling reasons for the implementation of mandatory collection within the City. She feels the Council
should delay implementation of the service, and research other ways to deaf with the city -wide trash
issues.
Council President Seal agreed the Council is not able to legislate responsibility, and she acknowledged
the trash issues within the City. She explained that initially she was excited about the possibility of
mandatory collection. However, after hearing the public testimony, she is willing to support Option B to
defer a decision on mandatory collection until a later date. She requested this topic return to a committee
after a year of the new service with Waste Management has been completed. This would allow staff to
analyze the services provided under the City's new contract with Waste Management and their
performance.
Mr. Iriarte explained he would work with Code Enforcement to gather information relating to issues and
problem properties.
COUNCIL CONSENSUS EXISTED TO DEFER A DECISION REGARDING MANDATORY GARBAGE
COLLECTION TO A LATER DATE, WITH THE ISSUE RETURNING TO A COUNCIL COMMITTEE A
YEAR AFTER IMPLEMENTATION OF THE NEW SERVICE WITH WASTE MANAGEMENT.
9:24 p.m. Council President Seal declared a brief recess.
9:35 p.m. Council President Seal reconvened the Committee of the Whole Meeting.
b. Housekeeping code amendments.
Councilmember Hougardy indicated this item was discussed at the Community Affairs and Parks
Committee meeting on April 9, 2012. The committee members were unanimous in recommending
approval for items 2 -7 as identified in the Committee packet.
The Council asked clarifying questions of staff and exchanged comments on the above topic. After
Council discussion, there was consensus to remove the proposed changes in Section 2 from the draft
zoning code ordinance, and refer the topic of building height and construction standards for single family
homes to a future Community Affairs and Parks Committee meeting.
COUNCIL CONSENSUS EXISTED TO FORWARD THE 7 ORDINANCES AS AMENDED TO THE
NEXT REGULAR MEETING.
c. An ordinance adopting the Development Agreement between the City of Tukwila and Riverton
Development for property at 12909 East Marginal Way South.
Brandon Miles, Senior Planner, explained that on March 26, 2012, the Council conducted a public hearing
to consider an ordinance adopting a Development Agreement for the construction of a Leadership in
Energy Environmental Design (LEED) certified building at 12909 East Marginal Way South containing 23
apartments and ground floor retail /office spaces. The staff memorandum on page 151 of the agenda
packet outlines the public testimony. Mr. Miles introduced Aaron Hundhofte with Riverton Development.
Aaron Hundhofte, Riverton Development, LLC, 3723 South 126 Street, said the proposed project is a
development to revitalize the area. It will be a "green" project, with a diverse mix of uses as defined in the
Neighborhood Commercial Center (NCC) Zoning. Additionally, the project will have live -in management
and local ownership.
Mr. Hundhofte updated the Council on two of the items that were discussed at the March 26, 2012
meeting. The first item is the private issue relating to multiple survey markers at the project site and a
neighboring property. He explained the development team has reviewed the placement of the multiple
survey markers, and the confirmed proposed development has the proper building setbacks. He said
they look forward to working with the neighbor to minimize any potential impacts relating to the
differences of surveyor opinions. The final issue of concern was the proposed tandem parking stalls
listed in the parking agreement. The tandem stalls will have assigned parking permits to individual units
for greater control of those parking stalls. He introduced Mark Jacobs, Traffic Engineer.
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Tukwila City Council Committee ofthe Whole Minutes
April 23, 2012
Page 7 of 9
Mark Jacobs, President of Jake Traffic Engineering (JTE), explained he was retained by Riverton
Development to conduct a parking analysis at the proposed development site. He provided a detailed
explanation of how the parking demand analysis was totals were compiled. Based on the parking
analysis, he feels the project site has ample parking for the proposed development.
The Councilmembers asked clarifying questions of staff and exchanged comments on the above topic to
include: concern about possible parking spillover to neighboring residential streets; acknowledgement of
the issues surrounding Group Health and Wells Trucking traffic; the possibility of installation of parking
restriction signage; concern relating to Saturday morning parking at Friendz Cafe; and concern regarding
parking enforcement within the development and along the residential streets.
Ed Fish, 12930 East Marginal Way South, stated he is speaking on behalf of Friendz Caf6. He
suggested the developer purchase the vacant lot on the corner of South 130 Street and East Marginal
Way South for public parking.
Pam Fernald, 2431 South 133 rd Street, SeaTac, stated she had prepared a statement, and she
distributed a copy of the statement for the Council. She feels the proposed development size and parking
congestion will create issues for the Riverton neighborhood. She commented that a project of this type
and size should be located along Tukwila International Boulevard, not in the small Riverton neighborhood.
It is her opinion that the development will lead to an increase of on- street parking that will block driveways
and mailboxes. The citizens in this area want a safe neighborhood, not a 3 -story apartment complex with
more parking issues and increased traffic.
David Wyble, 3536 South 130 th Street, explained his property backs up to the proposed development
site. In speaking with the developer, they have discussed the property line concerns and those have
been resolved. He referenced the potential parking issues, and he asked the Council to consider
converting the vacant lot on South 130 and East Marginal Way South to a public parking lot.
Additionally, he asked that the 4 -way stop signs and flashing light be converted to traffic signals.
Sharon Mann, 4452 South 160 Street, explained she was very involved with the City's Riverton
Annexation. A group of neighbors also worked very hard to keep Becker Trucking from expanding in the
residential area. Currently, the Riverton neighborhood has small older homes that do not generate a lot
of rental income, and the small number of new homes that have been built are helping the area grow.
She feels the proposed development would be a blessing for the area.
Janice Ludington, 3521 South 130 th Street, stated the area has heavy evening traffic, and the proposed
development will increase the neighborhood traffic. She feels this type of development is not needed in
the Riverton neighborhood.
Elisha Jenson, 3705 South 130 th Street, stated she is a new Riverton area homeowner, and she feels
the project is being pushed forward without consideration to the neighborhood. She is concerned about
the increased traffic in the area. In her opinion the proposed development is not a good fit for the
Riverton community.
Jeremy McGregal, 12930 East Marginal Way South, stated he is the owner of Friendz Caf6. He
expressed concern about the digital photos provided by the developer and specifically questioned the
date and time stamps.
Linda McCloud, 13021 37 Avenue South, asked if anyone has talked to the Tukwila School District
about the proposed project. She is concerned about the increased traffic the proposed project will bring
to the area.
Councilmember Robertson asked what guarantee would the City have relating to the parking agreement if
the property were to be sold within 1 or 2 years. Additionally, he asked what the City could do to ensure
no overflow parking occurs along the neighborhood streets near the project site.
Mr. Miles stated the parking agreement would be recorded as an exhibit with the Development
Agreement, and that would transfer to a new property owner. The City could have "no parking" signs
installed along the residential streets, or a type of "Residential Parking Zone" could be established similar
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Tukwila City Council Committee of the Whole Minutes
April 23, 2012 Page 8 of 9
to the City of Seattle. Residents within the zone would be issued parking permits, with the caveat that the
City would need to have resources to enforce the parking.
Councilmember Quinn asked for clarification on the "Residential Parking Zone." He asked if that type of
zone would have a specific time limit for vehicles that did not have a parking permit.
Mr. Miles clarified the time limits would be pre established, and the parking zone could be open after 7:00
p.m. This option would be a combination of implementation and enforcement.
Due to the lateness of the hour, Council President Seal asked how the Council would like to proceed with
this item. Options include forwarding the discussion to a future Committee of the Whole meeting or to the
next Regular meeting.
Councilmember Kruller stated the developer has provided great information on the proposed project. The
main issues are surrounding parking and citizen concerns about not wanting this type of development in
their neighborhood. She feels the parking issues need to be mediated and she clarified the area is zoned
for the type of development that is being proposed.
Councilmember Ekberg stated the Council does need to move toward a decision, and time constraints
have played a factor in this evening's discussion. Several citizens have commented on this proposed
project and the potential impacts it could have in the area. The area is zoned Neighborhood Commercial
Center (NCC), and the proposed development satisfies the vision for the area. Mr. Ekberg requested
staff research the availability of the vacant corner lot and whether that could be utilized as public parking
to determine if this compromise could be a solution to the parking issues.
Councilmember Hougardy commented the additional parking would greatly benefit the current businesses
and proposed development.
Mr. Miles explained staff will research the availability of the vacant lot at South 130 Street and East
Marginal Way. He clarified the main reason a development agreement is required is due to the request
by the developer for a reduction in the number of parking stalls for the project. If the Council has
concerns about the parking, one way to address those concerns would be to reduce the number of
residential units for the development, so the parking would meet the code- requirement of 2 stalls per unit.
If this option were used, the applicant would not be required to have a development agreement for the
project. The development application would follow the regular design review process and that would
remove the Council from making a decision on the project. The elimination of the development
agreement would also mean the project would not be required to achieve LEED certification. Staff can
work with the developer on this option and ensure the proposed development would meet the City code.
Councilmember Quinn concurred with Councilmember Ekberg, and he requested staff and the developer
try and resolve the parking issues.
Mr. Miles confirmed staff will work with the developer and research the availability of the vacant lot. This
will take some time to accomplish, and the item might not be ready for review at the next Regular
meeting.
COUNCIL CONSENSUS EXISTED TO FORWARD THIS ITEM TO THE NEXT REGULAR MEETING
(OR A FUTURE MEETING BASED ON STAFF RESEARCH).
d. Puget Sound Energy service connection agreements for Southcenter Parkway Extension
project.
Councilmember Ekberg indicated this item was discussed at the Transportation Committee meeting on
April 16, 2012. The committee members were unanimous in recommending approval.
The Southcenter Parkway Extension project requires five new power service connections for City of
Tukwila facilities. The facilities include 4 traffic signals at Segale Park Drive C, South 190' Street, South
194 Street and South 200 Street, and the new sanitary sewer pump station located at 18799
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Tukwila City Council Committee of the Whole Minutes
April 23, 2012
Page 9 of 9
Southcenter Parkway. The Council is being asked to approve the Puget Sound Energy service fees for
the five new connections in the amount of $70,428.52.
COUNCIL CONSENSUS EXISTED TO FORWARD THIS ITEM TO THE NEXT REGULAR MEETING.
e. A resolution adopting a City -wide Work Plan for 2012.
Councilmember Ekberg indicated this item was discussed at the Transportation Committee meeting on
April 16, 2012. The committee members were unanimous in recommending approval.
At the 2012 Council Retreat in February, the Council discussed the need for a City -wide work plan.
Guided by the City's mission statement, the formalized plan will help ensure prioritization and progress
toward the goals of the City. The Council is being asked to approve a resolution adopting the 2012 Work
Plan.
COUNCIL CONSENSUS EXISTED TO FORWARD THIS ITEM TO THE NEXT REGULAR MEETING.
REPORTS
Due to the lateness of the hour the Council dispensed with reports.
ADJOURNMENT
10:53 p.m. COUNCIL PRESIDENT SEAL DECLARED THE COMMITTEE OF THE WHOLE MEETING
ADJO RNED TO CONVENE A SPECIAL MEETING.
uda�
Verna Seal, Council President
Melissa Hart, Acting City Clerk
APPROVED AND SIGNED BY THE COUNCIL PRESIDENT ON 05108/2012
AVAILABLE ON THE CITY'S WEBSITE 05/09/2012
43
EE
Attachment E
Section 2. TMC Chapter 18.06, "Definitions Amended Ordinance Nos. Ord. 1971
§2, 2001 and 1758 §1 (part), as codified in TMC 18.06.100, "Building Height are hereby
amended to read as follows:
18.06.100 "Building height" means the height of a building as calculated by the
method in the Washington State Building Code, except if the slooe of the subiect
property is 15% or more and the subiect property is zoned residential then buildina
heiaht shall be calculated by either option a) or option b) listed below:
1) The arade plane shall be established from the lowest finished arade or lowest
existina arade (whichever is lower) adioinina the buildina at anv exterior wall: or
Height limit
Lowest Grade
Actual Grade is
greater than
15%
b) In order to allow the structures to better respond to the topoararft of slovina
sites, a structure will be allowed to adiust the points at which height is measured. This
45
may be accomplished by establishina separate arade planes at intervals of at least 15
feet for different sections of the structure.
Height Limit
(f 15
I,-
15" Section 3
15'
i_ Section 2
Section 1
r
M
Average Grade or Lowest Grade for each section
T
f
El
Additionallv, the city may require a topographic survey from a licensed land survevor
when the existinq grade will be disturbed to accomplish the construction or when the
final heiaht of the new structure in the area where qrade is beina disturbed is within 2
feet of the allowed height limit for the structure as measured above the existing or
finished grade.
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WLLOJ FAR
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs and Parks
FROM: Jack Pace, DCD Director
BY: Nora Gierloff, Deputy Director
Brandon Miles, Senior Planner
DATE: July 2, 2012
SUBJECT: Renewal of Moratorium on Medical Cannabis Collective Gardens and
Dispensaries
ISSUE
Should the City renew a moratorium on medical cannabis collective gardens and dispensaries?
BACKGROUND
On August 15, 2011, the City Council enacted City Council Ordinance No. 2348, which
established a one year moratorium on medical cannabis collective gardens and dispensaries.
The established moratorium is set to expire at midnight on August 14, 2012.
The memo that was presented to the City Council as part of the review of Ordinance No. 2348 is
included as an attachment to this memo. In that memo, staff outlined the various conflicts
between State and Federal Laws. Additionally, as the Council is aware, the Washington Cities
Insurance Authority (WCIA) issued a risk management bulletin emphasizing the need for cities
to proceed cautiously in dealing with collective gardens and dispensaries. City staff had hoped
that the State Legislature would provide clarity in the laws governing such uses; however, this
was not done in the last session. There are also several relevant initiatives that may be on the
November ballot. Should any of these pass, it would likely require that the legislature intervene
and provide needed clarification in the laws governing collective gardens and dispensaries.
DISCUSSION
Given that the City does not know how the proposed initiatives would impact the City's land use
regulations, it would seem prudent to wait until after the November election and after the next
legislative session before regulation of collective gardens and dispensaries.
FINANCIAL IMPACT
None
RECOMMENDATION
The Committee is being asked to forward the Ordinance to the July 23, 2012 Committee
of the Whole meeting for a public hearing and discussion. Final action on the
Ordinance could occur at the August 6, 2012 Regular Council meeting.
ATTACHMENTS
Draft Ordinance
Ordinance No. 2348
Staff Memo dated August 8, 2011
WCIA Risk Management Bulletin
50
3.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, RENEWING A 12 -MONTH MORATORIUM WITHIN THE
CITY OF TUKWILA ON THE ESTABLISHMENT, LOCATION, OPERATION,
LICENSING, MAINTENANCE OR CONTINUATION OF MEDICAL
CANNABIS COLLECTIVE GARDENS OR DISPENSARIES, ASSERTED
TO BE AUTHORIZED OR ACTUALLY AUTHORIZED UNDER E2SSB
5073, CHAPTER 181, LAWS OF 2011, CHAPTER 69.51A REVISED CODE
OF WASHINGTON, OR ANY OTHER LAWS OF THE STATE OF
WASHINGTON; REPEALING ORDINANCE NO. 2348; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of Tukwila has the authority to adopt a moratorium pursuant to
RCW 35A.63.220; and
WHEREAS, on August 15, 2011, the Tukwila City Council adopted Ordinance No.
2348, which declared an emergency necessitating the immediate imposition of a
moratorium on the establishment, location, operation, licensing, maintenance or
continuation of medical cannabis collective gardens or dispensaries, asserted to be
authorized under E2SSB 5073, Chapter 181, Laws of 2011, Chapter 69.51A Revised
Code of Washington, or any other laws of the State of Washington, and
WHEREAS, on October 3, 2011, the Tukwila City Council conducted a public
hearing and heard testimony regarding the City's moratorium, and following the public
hearing the City Council adopted Ordinance No. 2350, which adopted findings of fact to
justify the moratorium adopted by Ordinance No. 2348, and
WHEREAS, after adoption of the City's moratorium, and despite calls from other
Washington State cities, the Washington State Legislature has failed to provide
clarification on the statutes relating to cannabis collective gardens and /or dispensaries;
and
WHEREAS, several initiatives are currently pending with the Washington Secretary
of State's Office addressing the issue of cannabis; and
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51
WHEREAS, the moratorium adopted by Ordinance No. 2348 will expire before the
initiatives go before the people of the State of Washington and, if adopted, before the
initiatives would be enacted into law; and
WHEREAS, the City is not in the position to expend scarce resources in developing
regulations that may be rendered obsolete in a very short time, based on action taken
at the State level; and
WHEREAS, the City desires to wait for the outcome of the vote on these initiatives
and, if passed by the people, to determine any impact these initiatives may have (either
directly or indirectly) on requirements relating to cannabis collective gardens and /or
dispensaries;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Moratorium Renewed. The City hereby renews the moratorium
previously imposed on the establishment, location, operation, licensing, maintenance or
continuation of medical cannabis collective gardens or dispensaries, asserted to be
authorized under E2SSB 5073, Chapter 181, Laws of 2011, Chapter 69.51A Revised
Code of Washington, or any other laws of the State of Washington.
Section 2. Public Hearing. Pursuant to RCW 35A.63.220 and following adequate
public notice, a public hearing was held on July 23, 2012 to hear testimony regarding
the City's moratorium.
Section 3. Duration. The moratorium renewed herein shall be in effect until
August 14, 2013, unless extended by the City Council, pursuant to State law.
Section 4. Definitions. As used in this ordinance, the following terms have the
meanings set forth below:
A. "Medical marijuana dispensary" means any business, agency, organization,
cooperative, network, consultation operation, or other group or person, no matter how
described or defined, including its associated premises and equipment, which has for
its purpose or which is used to grow, select, measure, package, label, deliver, sell, or
otherwise transfer (for consideration or otherwise) marijuana for medical use. One
individual person who is the designated provider for only one qualified patient during
any 15 -day period and who complies with Chapter 69.51A RCW, shall not be deemed a
medical marijuana dispensary for the purposes of this moratorium.
B. "Medical marijuana collective garden" means a group of qualifying patients that
share responsibility for acquiring and supplying the resources required to produce and
process marijuana for medical use. Examples of collective garden resources would
include, without limitation, the following: property used for a collective garden; or
equipment, supplies, and labor necessary to plant, grow and harvest marijuana;
marijuana plants, seeds, and cuttings; and equipment, supplies, and labor necessary
for proper construction, plumbing, wiring, and ventilation of a garden of marijuana
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52
plants. A medical marijuana collective garden shall satisfy the above definition
regardless of its formation, ownership, management, or operation as a business,
agency, organization, cooperative, network, consultation operation, group, or person.
One individual person who is the designated provider for only one qualified patient
during any 15 -day period and who complies with Chapter 69.51A RCW, or an individual
person who is a qualified patient and who complies with 69.51A RCW, shall not be
deemed a medical marijuana collective garden for the purposes of this moratorium.
Section 5. No Non conforming Uses. No use that constitutes or purports to be a
medical marijuana dispensary or medical marijuana collective garden as those terms
are defined in this ordinance, that was engaged in that activity prior to the enactment of
this ordinance shall be deemed to have been a legally established use under the
provisions of the Tukwila Municipal Code and that use shall not be entitled to claim
legal non conforming status.
Section 6. Adoption of Findings of Fact. The City Council adopts the findings of
facts contained in Ordinance No. 2350, by this reference, as well as the "Whereas"
clauses contained herein.
Section 7. Work Program. The Director of Community Development and /or
his /her designee is hereby authorized and directed to address issues related to
determining the legality of medical marijuana dispensaries, production facilities, and
processing facilities including but not limited to review of the pending dispute between
state and federal law enforcement authorities regarding the legality of medical
marijuana under any circumstances and notwithstanding the enactment by the
legislature of RCW 69.51A. In the event that such uses are ultimately determined to be
legal, the work program should also develop appropriate land use regulations pursuant
to the newly amended law for review and recommendation for inclusion in the zoning
regulations or other provisions of the Tukwila Municipal Code. The Finance Director
and /or his /her designee is hereby authorized and directed to develop appropriate
business licensing and other regulations pursuant to the newly amended law for review
and recommendation for inclusion in the zoning regulations or other provisions of the
Tukwila Municipal Code.
Section 8. Repealer. Ordinance No. 2348 is hereby repealed.
Section 9. Severability. If any section, subsection, paragraph, sentence, clause
or phrase of this ordinance or its application to any person or situation should be held to
be invalid or unconstitutional for any reason by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 10. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to
other local, state or federal laws, codes, rules, or regulations; or ordinance numbering
and section /subsection numbering.
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53
Section 11. Effective Date. This ordinance or a summary thereof shall be
published in the official newspaper of the City, and shall take effect and be in full force
five days after passage and publication as provided by law.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON,
at a Regular Meeting thereof this day of 2012.
ATTEST /AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk
APPROVED AS TO FORM BY
Shelley M. Kerslake, City Attorney
Jim Haggerton, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
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Cl of u la
Washington
Ordinance No. a3 q F
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, ADOPTING A 12 -MONTH MORATORIUM WITHIN THE
CITY OF TUKWILA ON THE ESTABLISHMENT, LOCATION, OPERATION,
LICENSING, MAINTENANCE OR CONTINUATION OF MEDICAL
CANNABIS COLLECTIVE GARDENS OR DISPENSARIES, ASSERTED
TO BE AUTHORIZED OR ACTUALLY AUTHORIZED UNDER E2SSB
5073, CHAPTER 181, LAWS OF 2011, CHAPTER 69.51A REVISED CODE
OF WASHINGTON, OR ANY OTHER LAWS OF THE STATE OF
WASHINGTON; SETTING A DATE FOR A PUBLIC HEARING ON THE
MORATORIUM; PROVIDING FOR SEVERABILITY; AND DECLARING AN
EMERGENCY AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the possession or distribution of cannabis (marijuana) has been and
continues to be a violation of state law pursuant to Chapter 69.50 Revised Code of
Washington (Washington's Uniform Controlled Substances Act), and federal law,
through the Controlled Substances Act "CSA and
WHEREAS, Initiative Measure No. 692, approved by the voters of Washington
State on November 30, 1998, and now codified as Chapter 69.51A RCW, created a
limited defense to marijuana charges under state, not federal, law if the person charged
could demonstrate that he or she was a qualifying patient or designated provider as
those terms are defined in Ch. 69.51A RCW; and in 2007, the state legislature
amended the law; and in 2011 the state legislature passed a third amendment to the
law, E2SSB 5073, Chapter 181, Laws of 2011, portions of which the Governor vetoed,
and the newly amended law took effect on July 22, 2011; and
WHEREAS, prior to issuing her partial veto, the Governor received a letter signed
by Washington's two U.S. Attorneys, Michael Ormsby and Jennifer Durkan, and in their
letter they wrote that marijuana is a Schedule I controlled substance under federal law
and, as such, "growing, distributing and possessing marijuana in any capacity, other
than as part of a federally authorized research program, is a violation of federal law
regardless of state laws permitting such activities;" and these U.S. Attorneys also
concluded, "state employees who conducted activities mandated by the Washington
legislative proposals would not be immune from liability under the CSA"; and
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WHEREAS, because the Governor vetoed 36 of the 58 sections of the legislature's
bill amending Chapter 69.51A RCW, the law, in its final form, understandably has
inconsistencies and ambiguities; for example, certain sections that were not vetoed
make reference to other sections that were vetoed; and
WHEREAS, the recent amendments to Chapter 69.51A RCW change the scope
and effect of the law, including new sections that affect the rights of qualifying patients
and their designated providers; and the law now allows "collective gardens" that provide
for growing and cultivating up to 45 plants to serve no more than 10 qualifying patients,
and provides other changes to the rights and responsibilities of medical marijuana
patients and their designated providers; and
WHEREAS, the new law, however, clearly delegates to cities the authority to
implement zoning requirements, business licensing requirements, health and safety
requirements, and business taxes as those requirements and taxes relate to the
production, processing, or dispensing of medical marijuana; and in particular, local
regulations could address ambiguities concerning the location and operation of
collective gardens, and ensure that provisions related to designated providers are not
used to establish a de facto dispensary when the authority for such uses was vetoed;
and
WHEREAS, the City Council requires time to conduct appropriate research to
understand the extent of the changes provided in the new law, to analyze impacts and
potential liabilities under federal law, and to determine an appropriate regulatory
framework for any new uses that are allowed under these laws; and
WHEREAS, the City must ensure that proposed locations for these operations are
appropriate and that any potential secondary impacts arising from the operation of
these uses or facilities are minimized and mitigated; and these secondary impacts may
include, but are not limited to, burglaries associated with the cash and marijuana
maintained on the site, or an increase of other illegal activities, such as drug use, within
the vicinity of these dispensaries; and
WHEREAS, in particular, and without limitation, staff should analyze the impacts of
allowing these uses and facilities in residential zones as well as impacts arising from
the proximity of these uses and facilities to schools, daycares, parks, religious and
cultural facilities, jails and courthouses; and accordingly, the City Council finds that a
zoning, licensing, and permitting moratorium should be established pending local
review of appropriate locations and design requirements of these operations and
impacts of the newly amended law and its interaction with federal law; and
WHEREAS, although the City Council determines that a moratorium is necessary
for the reasons established above, the City Council emphasizes that it understands the
needs of persons suffering from debilitating or terminal conditions, as well as the
benefits that approved medical use of marijuana may provide these persons;
nevertheless, given the complex legal and regulatory framework surrounding this issue,
a moratorium remains necessary until the City Council can adequately address the
competing interests at play;
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56
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Preliminary Findings. The recitals and findings set forth above are
hereby adopted as the City Council's preliminary findings in support of the moratorium
imposed by this ordinance. The City Council may, in its discretion, adopt additional
findings at the conclusion of the public hearing referenced in Section 6 below.
Section 2. Moratorium Imposed. Pursuant to the provisions of Article 11,
Section 11 of the Washington State Constitution, RCW 35A.63.220, and RCW
36.70A.390, a moratorium is hereby enacted prohibiting within the City of Tukwila, the
establishment, location, operation, licensing, maintenance, or continuation of any
medical cannabis collective garden or any medical marijuana dispensary, whether for
profit or not for profit, asserted to be authorized or actually authorized under E2SSB
5073, Chapter 181, Laws of 2011, Chapter 69.51A RCW, or any other laws of the state
of Washington. No building permit, occupancy permit, or other development permit or
approval shall be issued for any of the purposes or activities listed above, and no
business license shall be granted or accepted while this moratorium is in effect. Any
land use permits, business licenses or other permits for any of these operations that are
issued as a result of error or by use of vague or deceptive descriptions during the
moratorium are null and void and without legal force or effect.
Section 3. Definitions. As used in this ordinance, the following terms have the
meanings set forth below:
A. "Medical marijuana dispensary" means any business, agency, organization,
cooperative, network, consultation operation, or other group or person, no matter how
described or defined, including its associated premises and equipment, which has for
its purpose or which is used to grow, select, measure, package, label, deliver, sell, or
otherwise transfer (for consideration or otherwise) marijuana for medical use. One
individual person who is the designated provider for only one qualified patient during
any 15 -day period and who complies with Chapter 69.51A RCW, shall not be deemed a
medical marijuana dispensary for the purposes of this moratorium.
B. "Medical marijuana collective garden" means a group of qualifying patients that
share responsibility for acquiring and supplying the resources required to produce and
process marijuana for medical use. Examples of collective garden resources would
include, without limitation, the following: property used for a collective garden; or
equipment, supplies, and labor necessary to plant, grow and harvest marijuana;
marijuana plants, seeds, and cuttings; and equipment, supplies, and labor necessary
for proper construction, plumbing, wiring, and ventilation of a garden of marijuana
plants. A medical marijuana collective garden shall satisfy the above definition
regardless of its formation, ownership, management, or operation as a business,
agency, organization, cooperative, network, consultation operation, group, or person.
One individual person who is the designated provider for only one qualified patient
during any 15 -day period and who complies with Chapter 69.51A RCW, or an individual
person who is a qualified patient and who complies with 69.51A RCW, shall not be
deemed a medical marijuana collective garden for the purposes of this moratorium.
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57
Section 4. No Non conforming Uses. No use that constitutes or purports to be a
medical marijuana dispensary or medical marijuana collective garden as those terms
are defined in this ordinance, that was engaged in that activity prior to the enactment of
this ordinance shall be deemed to have been a legally established use under the
provisions of the Tukwila Municipal Code and that use shall not be entitled to claim
legal non conforming status.
Section 5. Effective Period for Moratorium. The moratorium set forth in this
ordinance shall be in effect for a period of 12 months from the date this ordinance is
passed and shall automatically expire at the conclusion of that 12 -month period unless
the same is extended as provided in RCW 35A.63.220 and RCW 36.70A.390, or unless
terminated sooner by the City Council.
Section 6. Public Hearing. Pursuant to RCW 35A.63.220 and RCW 36.70A.390,
the City Council will hold a public hearing at the City Council's regular meeting at 7:00
p.m. in Council Chambers on October 3, 2011, or as soon thereafter as the business of
the City Council shall permit, and which date is no more than 60 days after the date of
adoption herein, in order to take public testimony and to consider adopting further
findings.
Section 7. Work Program. The Director of Community Development and /or
his /her designee is hereby authorized and directed to address issues related to
determining the legality of medical marijuana dispensaries, production facilities, and
processing facilities including but not limited to review of the pending dispute between
state and federal law enforcement authorities regarding the legality of medical
marijuana under any circumstances and notwithstanding the enactment by the
legislature of RCW 69.51A. In the event that such uses are ultimately determined to be
legal, the work program should also develop appropriate land use regulations pursuant
to the newly amended law for review and recommendation for inclusion in the zoning
regulations or other provisions of the Tukwila Municipal Code. The Finance Director
and /or his /her designee is hereby authorized and directed to develop appropriate
business licensing and other regulations pursuant to the newly amended law for review
and recommendation for inclusion in the zoning regulations or other provisions of the
Tukwila Municipal Code.
Section 8. Severability. If any section, subsection, paragraph, sentence, clause
or phrase of this ordinance or its application to any person or situation should be held to
be invalid or unconstitutional for any reason by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 9. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to
other local, state or federal laws, codes, rules, or regulations; or ordinance numbering
and section /subsection numbering.
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i
Section 10. Effective Date. The City Council hereby finds and declares that there
is a potential that persons seeking to engage in marijuana collective garden or
dispensary uses could claim vesting under E2SSB 5073 and /or that the presence of
any marijuana collective gardens in the City of Tukwila could have negative secondary
effects if not first addressed by adequate and appropriate regulations, and that,
therefore, an emergency exists which necessitates that this ordinance become effective
immediately in order to preserve the public health, safety and welfare. This ordinance
shall become effective immediately upon passage. The City Clerk is directed to publish
a summary of this ordinance at the earliest possible publication date.
PASSED BY THE CITY COUNCIL,OF THE CITY OF WASHINGTON,
at a Regular Meeting thereof this day of /-t q u� T
2011.
ATTEST /AUTHENTICATED:
Christy O'Fl6erty, CIVIC, City'Clerk
APPRO rke, RM BY:
S_hetl�y M. K Attorney
Ji ggerl:0221r
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date: LJ l Lc it7+� LO
Ordinance Number: Number: 43gcy
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59
AN
City of Tukwila
Jim Haggerfon, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Tukwila City Council
FROM: Jack Pace, Community Development Director
DATE: August 8, 2011
SUBJECT: Moratorium on Medical Cannabis Collective Gardens and Dispensaries
ISSUE
Should a moratorium on medical cannabis collective gardens and dispensaries be enacted?
BACKGROUND
The voters of Washington State passed initiative Measure No. 692 on November 30, 1998
allowing for the medical use of marijuana (cannabis). This has been codified as RCW Ch.
69.51A and created a limited defense to charges under state, not federal, law if the person
charged can demonstrate that he or she was a qualifying patient or designated provider. In
2007, the state legislature amended the law, and again in 2011, the state legislature passed a
third amendment to the law, portions of which the Governor vetoed. The newly amended law
took effect on July 22, 2011.
These recent amendments to RCW 69.51A change the scope and effect of the law affecting the
rights of qualifying patients and their designated providers. The law now allows "collective
gardens" that provide for growing and cultivating up to 45 plants to serve no more than 10
qualifying patients. The new law, however, clearly delegates to cities the authority to implement
zoning requirements, business licensing requirements, health and safety requirements, and
business taxes as those requirements and taxes relate to the production, processing, or
dispensing of medical marijuana. In particular, local regulations could address ambiguities
concerning the location and operation of collective gardens, and ensure that provisions related
to designated providers are not used to establish a de facto dispensary when the authority for
such uses was vetoed.
Despite this legislation the possession or distribution of cannabis has been and continues to be
a violation of state law pursuant to RCW 69.50 (Washington's Uniform Controlled Substances
Act), and federal law, through the Controlled Substances Act "CSA Washington's two U.S.
Attorneys state that marijuana is a Schedule I controlled substance under federal law and, as
such, "growing, distributing and possessing marijuana in any capacity, other than as part of a
federally authorized research program, is a violation of federal law regardless of state laws
permitting such activities." These U.S. Attorneys also concluded, "state employees who
conducted activities mandated by the Washington legislative proposals would not be immune
from liability under the CSA."
61
INFORMATIONAL MEMO
Page 2
DISCUSSION
The Washington Cities Insurance Authority (WCIA) has issued an update to its earlier risk
management bulletin emphasizing the need for cities to proceed cautiously in this uncharted
area, see Attachment 2. Given the contradictory legal framework and the lack of clarity in RCW
69.51A the City of Tukwila needs additional time to study the issue and analyze the impacts of
allowing these uses and facilities in residential zones as well as impacts arising from the
proximity of these uses and facilities to schools, daycares, parks, religious and cultural facilities,
jails and courthouses.
Establishing a moratorium on these uses would allow the City time to perform this analysis and
develop a legally sound approach to the issue. Within 60 days of adoption of the moratorium the
City is required to hold a public hearing.
RECOMMENDATION
The Council is being asked to approve this ordinance for a 12 -month period, which will become
effective immediately, at the August 15, 2011 Regular Meeting. A public hearing will be
conducted on October 3, 2011.
ATTACHMENTS
Moratorium Ordinance
WCIA Risk Management Bulletin
WA2011 Info Memos \MadjuanaCollecUveGardens.doc
Risk Management Bulletin
Administration #46
June, 2011
Medical Mariivana Law: Post 2011 Washineton Legislative Session
By Mark R. Bucklin, WCIA General Counsel
Keating Bucklin McCormack, Inc. P.S.
A WCIA Risk Management Bulletin was issued 12/28/2010 addressing the then existing state of
the law regarding medical marijuana in Washington and the rise of business license applications
for medical marijuana "Dispensaries" across the state. In short, the Bulletin concluded that such
"dispensaries" were not legal under the law at that time as they inevitably involved the
possession and sale of marijuana not allowed by law. It was recommended that business license
applications for dispensaries be denied or revoked. The Bulletin predicted that the topic would
be addressed in the 2011 Washington State Legislative Session and changes could occur. The
topic did arise, legislation was passed and then the legislation was partially vetoed by the
Governor. This Bulletin Supplement will address the law as it now exists, post 2011 Legislative
Session.
In April 2011, the Washington State Legislature passed Engrossed Second Substitute Senate Bill
5073 through both houses amending Initiative 692 and sent it on to the Governor for signature
into law. The bill, as passed, offered sweeping changes to the medical marijuana law in
Washington and would have put in place a regulatory licensing scheme for the growth and
distribution of medical marijuana through licensed dispensaries to "qualified patients" who had
been designated as such by their "health care professionals." The production and sale of medical
cannabis and the dispensing standards would have been under regulation by the State
Department of Health. Dispensers could sell seeds, plants, usable cannabis, and cannabis
products directly to qualifying patients. The bill also provided for optional "collective gardens"
where individuals who were qualified patients, or their individual providers, could grow for their
own use medical marijuana collectively so long as the participants did not exceed 10 in number
or more that 15 plants per person and up to 45 plants total.
Before the Governor could sign the bill, the U.S. Attorney's in Seattle and Spokane sent the
Governor an advisory letter, (which she had solicited) approved by U.S. Attorney General
Holder, warning and advising the Governor that substantial portions of the bill approved by the
Legislature was in direct conflict with Federal Drug Laws and that state employees could be at
risk of federal prosecution for aiding and abetting illegal drug possession and sale if they
processed licenses for production and sale of medical cannabis under the proposed new bill. The
letter of April 14, 2011 to Governor Gregoire signed by U.S Attorney Jenny Durkin and U.S.
Attorney Michael Ormsby stated, in part:
"The Washington legislative proposals will create a licensing scheme that permits large
scale marijuana cultivation and distribution. This would authorize conduct contrary to
federal law and thus, would undermine the federal government's efforts to regulate the
possession, manufacturing and trafficking of controlled substance. Accordingly, the
Department could consider civil and criminal legal remedies regarding those who set up
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marijuana growing facilities and dispensaries as they will be doing so in violation of federal
law. Others who knowingly facilitate the action of the licensees, including property owners,
landlords, and financier should also know that their conduct violates federal law. In
addition, state emolovees who conducted activities mandated by the Washington leL3islative
proposals would not be immune from liabilitv under the CSA (controlled substances act)."
(emphasis added).
Citing this letter, Governor Gregoire issued a partial veto of ESSSB 5073 on April 29, 2011.
The Governor vetoed all the new sections dealing with the state licensing of production and
licensed dispensing of medical marijuana. The portions of the bill not vetoed and signed by
Governor Gregoire amend the original medical marijuana Initiative 692 passed by the people.
So, the question becomes: What is left of ESSSB 5073 after the line item veto of the Governor?
What Are the SiLFnificant Changes in the Law Under ESSSB 5073 as Signed?
1. New stronger protections to qualified medical marijuana users and providers from
criminal arrest, prosecution and conviction.
Previously qualified users and providers were given an affirmative defense to assert at
trial if they were charged with a marijuana crime. Now, sec. 401 of the new act provides:
"Sec. 401 The medical use of cannabis in accordance with the terms and conditions
of this chapter does not constitute a crime and a qualifying patient or designated
provider in compliance with the terms and conditions of this chapter may not be
arrested, prosecuted, or subject to other criminal sanctions or civil
consequences, for possession, manufacture, or delivery of, or for possession with
intent to manufacture or deliver, cannabis under state law, or have real or
personal property seized or forfeited
Section 102 of the new act states:
"(a) Qualifying patients with terminal or debilitating ((illnesses)) medical conditions
who, in the judgment of their health care professionals, may benefit from the medical
use of ((marijuana)) cannabis, shall not be ((found guilty of a crime under state
law for their possession and limited use of marijuana)) arrested, prosecuted, or
subject to other criminal sanctions or civil consequences under state law based
solely on their medical use of cannabis, notwithstanding any other provision of law;
(b) Persons who act as designated providers to such patients shall also not be ((found
guilty of a crime under state law for)) arrested, prosecuted, or subject to other
criminal sanctions or civil consequences under state law, notwithstanding any other
provision of law, based solely on their assisting with the medical use of ((marijuana))
cannabis;..."
Letter attached
z Partial veto letter attached
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Author's Supplemental Note: Did the act, as partially vetoed, really make medical
marijuana possession and use exempt from arrest and prosecution? It has been
pointed out that section 401 may have been intended to only relate to those qualified
users who obtained registry cards provided in Sec. 401(2) and Sec. 901. The
Governor vetoed Sec. 901 which would have created the State Registry system. Does
the Sec. 102's similar language stand alone and reach the same result? If not, then the
language of Sec. 402(1) and (2) which provides an affirmative defense to criminal
arrest and charges for qualified patients who do not have registry cards may be the
operative law. Court decisions may have to clarify this issue.
2. Health Care Professionals are given greater protection but with greater restrictions
regarding issuing "valid documentation" to qualifying patients authorizing medical
use of cannabis.
a. Health Care Professionals have been given the same protections as qualifying
patients and providers as noted above. (Sec 301 (1))
b. The new act states:
"Sec. 301(2)(a) A health care professional may only provide a patient with valid
documentation authorizing the medical use of cannabis or register the patient with
the registry established in section 901 of this act if he or she has a newly initiated
or existing documented relationship with the patient, as a primary care provider or
a specialist, relating to the diagnosis and ongoing treatment or monitoring of the
patient's terminal or debilitating medical condition, and only after:
(i) Completing a physical examination of the patient as appropriate, based on
the patient's condition and age;
(ii) Documenting the terminal or debilitating medical condition of the patient
in the patient's medical record and that the patient may benefit from treatment
of this condition or its symptoms with medical use of cannabis;
(iii) Informing the patient of other options for treating the terminal or
debilitating medical condition; and
(iv) Documenting other measures attempted to treat the terminal or
debilitating medical condition that do not involve the medical use of cannabis.
(b) A health care professional shall not:
(i) Accept, solicit, or offer any form of pecuniary remuneration from or to a
licensed dispenser, licensed producer, or licensed processor of cannabis
products;
(ii) Offer a discount or any other thing of value to a qualifying patient who is a
customer of, or agrees to be a customer of, a particular licensed dispenser,
licensed producer, or licensed processor of cannabis products;
(iii) Examine or offer to examine a patient for purposes of diagnosing a
terminal or debilitating medical condition at a location where cannabis is
produced, processed, or dispensed;
(iv) Have a business or practice which consists solely of authorizing the
medical use of cannabis;
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(v) Include any statement or reference, visual or otherwise, on the
medical use of cannabis in any advertisement for his or her business or
practice; or
(vi) Hold an economic interest in an enterprise that produces, processes,
or dispenses cannabis if the health care professional authorizes the
medical use of cannabis.
(3) A violation of any provision of subsection (2) of this section constitutes
unprofessional conduct under chapter 18.130 RCW."
3. Use of medical cannabis at work or in jails requires no accommodation and may be
prohibited. Drug free work places may be continued. Medical insurance is not
required to cover medical cannabis. Medical cannabis may not be smoked in public
but it is now an infraction, not a crime. Persons under supervised probation or
parole may be prohibited from the use medical cannabis. The use of medical
cannabis is not a defense to Driving Under the Influence.
"Sec. 501. RCW 69.51A.060 and 2010 c 284 s 4 are each amended to read as
follows:
(1) It shall be a ((misdemeanor)) class 3 civil infraction to use or display
medical ((marijuana)) cannabis in a manner or place which is open to the
view of the general public.
(2) Nothing in this chapter ((requires any health insurance provider)) establishes a
right of care as a covered benefit or requires any state purchased health care as
defined in RCW 41.05.011 or other health carrier or health plan as defined in Title
48 RCW to be liable for any claim for reimbursement for the medical use of
((marijuana)) cannabis. Such entities may enact coverage or noncoverage criteria
or related policies for payment or nonpayment of medical cannabis in their sole
discretion.
(3) Nothing in this chapter requires any health care professional to authorize the
medical use of ((medical marijuana)) cannabis for a patient.
(4) Nothing in this chapter requires any accommodation of any on- site medical
use of ((marijuana)) cannabis in any place of employment, in any school bus or on
any school grounds, in any youth center, in any correctional facility, or smoking
((medical marijuana)) cannabis in any public place ((as that term is defined in
RCW 70.160.020)) or hotel or motel.
(5) Nothing in this chapter authorizes the use of medical cannabis by any person
who is subject to the Washington code of military justice in chapter 3 8.3 8 RCW.
(6) Employers may establish drug -free work policies. Nothing in this chapter
requires an accommodation for the medical use of cannabis if an employer has a
drug -free work place."
"Sec. 1105. (1)(a) The arrest and prosecution protections established in section
401 of this act may not be asserted in a supervision revocation or violation
hearing by a person who is supervised by a corrections agency or department,
including local governments or jails, that has determined that the terms of this
section are inconsistent with and contrary to his or her supervision.
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(b) The affirmative defenses established in sections 402, 405, 406, and 407 of this
act may not be asserted in a supervision revocation or violation hearing by a
person who is supervised by a corrections agency or department, including local
governments or jails, that has determined that the terms of this section are
inconsistent with and contrary to his or her supervision.
(2) The provisions of RCW 69.51A.040 and sections 403 and 413 of this act do
not apply to a person who is supervised for a criminal conviction by a corrections
agency or department, including local governments or jails, that has determined
that the terms of this chapter are inconsistent with and contrary to his or her
supervision.
(3) A person may not be licensed as a licensed producer, licensed processor of
cannabis products, or a licensed dispenser under section 601, 602, or 701 of this
act if he or she is supervised for a criminal conviction by a corrections agency or
department, including local governments or jails, that has determined that
licensure is inconsistent with and contrary to his or her supervision."
"Sec. 501(8) (8) No person shall be entitled to claim the ((affirmative defense
provided in RCW 69.5 1 A.040)) protection from arrest and prosecution under
RCW 69.51A.040 or the affirmative defense under section 402 of this act for
engaging in the medical use of ((marijuana)) cannabis in a way that endangers the
health or well -being of any person through the use of a motorized vehicle on a
street, road, or highway, including violations of RCW 46.61.502 or 46.61.504, or
equivalent local ordinances."
4. A "designated provider" who has been terminated by a "qualified patient" cannot
become a designated provider for another qualified patient until 15 days have
elapsed.
"Sec. 404. (1) A qualifying patient may revoke his or her designation of a specific
provider and designate a different provider at any time. A revocation of
designation must be in writing, signed and dated. The protections of this chapter
cease to apply to a person who has served as a designated provider to a qualifying
patient seventy -two hours after receipt of that patient's revocation of his or her
designation.
(2) A person may stop serving as a designated provider to a given qualifying
patient at any time. However, that person may not begin serving as a
designated provider to a different qualifying patient until fifteen days have
elapsed from the date the last qualifying patient designated him or her to
serve as a provider."
5. Qualifying patients may, under restrictions, create "collective gardens" to produce
medical cannabis.
"Sec. 403. (1) Qualifying patients may create and participate in collective
gardens for the purpose of producing, processing, transporting, and delivering
cannabis for medical use subject to the following conditions:
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(a) No more than ten qualifying patients may participate in a single
collective garden at any time;
(b) A collective garden may contain no more than fifteen plants per patient
up to a total of forty -five plants;
(c) A collective garden may contain no more than twenty -four ounces of
useable cannabis per patient up to a total of seventy -two ounces of
useable cannabis;
(d) A copy of each qualifying patient's valid documentation or proof of
registration with the registry established in section 901 of this act, including a
copy of the patient's proof of identity, must be available at all times on
the premises of the collective garden; and
(e) No useable cannabis from the collective garden is delivered to anyone
other than one of the qualifying patients participating in the collective garden.
(2) For purposes of this section, the creation of a "collective garden" means
qualifying patients sharing responsibility for acquiring and supplying the
resources required to produce and process cannabis for medical use such as, for
example, a location for a collective garden; equipment, supplies, and labor
necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and
cuttings; and equipment, supplies, and labor necessary for proper construction,
plumbing, wiring, and ventilation of a garden of cannabis plants.
(3) A person who knowingly violates a provision of subsection (1) of this section
is not entitled to the protections of this chapter."
(Author's Note: Sec 501(1) makes the public disvlav of medical cannabis a
civil infraction and this would presumably apply to the display of medical
cannabis in a collective garden hence some sort of screening from public view
seems to be built into the act.)
6. Cities and Counties may but are not required to, zone, license, regulate and tax the
production, processing and dispensing of cannabis. This would appear to be now
limited to collective gardens since that is the only new activity allowed under the act
and individual single production of medical cannabis by a qualified user or
provider.
"Sec. 1102. (1) Cities and towns may adopt and enforce any of the following
pertaining to the production, processing, or dispensing of cannabis or cannabis
products within their jurisdiction: Zoning requirements, business licensing
requirements, health and safety requirements, and business taxes. Nothing in this
act is intended to limit the authority of cities and towns to impose zoning
requirements or other conditions upon licensed dispensers, so long as such
requirements do not preclude the possibility of siting licensed dispensers within
the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not
required to adopt zoning to accommodate licensed dispensers.
(2) Counties may adopt and enforce any of the following pertaining to the
production, processing, or dispensing of cannabis or cannabis products within
their jurisdiction in locations outside of the corporate limits of any city or town:
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Zoning requirements, business licensing requirements, and health and safety
requirements. Nothing in this act is intended to limit the authority of counties to
impose zoning requirements or other conditions upon licensed dispensers, so long
as such requirements do not preclude the possibility of siting licensed dispensers
within the jurisdiction. If the jurisdiction has no commercial zones, the
jurisdiction is not required to adopt zoning to accommodate licensed dispensers."
(Author's Note: The Governor vetoed all other sections of the act that would
have created legal licensed dispensers of medical cannabis so presumably the
language in this section addressing the zoning of licensed dispensers is null
and void.)
7. Police and local jurisdictions are given limited immunity under the act for good
faith actions.
"Sec. 1101. (1) No civil or criminal liability may be imposed by any court on the
state or its officers and employees for actions taken in good faith under this
chapter and within the scope of their assigned duties.
(2) No civil or criminal liability may be imposed by any court on cities, towns,
and counties or other municipalities and their officers and employees for actions
taken in good faith under this chapter and within the scope of their assigned
duties."
Challenges and Issues for Local Government Under the New Act
1. What to do with existing medical marijuana /cannabis dispensaries and business
license applications for the same?
As previously noted, the Governor's line item veto took out all provisions of the
law that would have made dispensaries licensed and legal. Hence the law remains
the same as before and there is no credible argument that medical cannabis
dispensaries that sell cannabis are legal under state or federal law. (See prior
WCIA Bulletin of 12/28 /2010- Medical Mariivana Dispensaries -Are Thev
Leaal The sale of marijuana in the State of Washington remains illegal
and subiect to criminal prosecution. (RCW 69.50.401 410.) Nothing in the
new act makes the sale of medical marijuana /cannabis legal.
Existing dispensaries that are selling marijuana /cannabis are subject to police
investigation, arrest and prosecution. Priority of enforcement is up to the local
jurisdictions and decisions on resource allocation.
Pending or new applications for business licenses dispensaries of medical
cannabis should be denied as illegal businesses if there is any evidence that the
sale of cannabis is part of the operational scheme or business plan.
2. Should local governmental entities do zoning or zoning moratoriums regarding
medical marijuana /cannabis dispensaries?
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There does not appear to be any current urgency to do so as the legislation that
would have allowed legal dispensaries starting in 2012 has been vetoed.
However, the political backers of ESSSB 5073 have vowed they will come back
with a new proposal in the next legislative session. Preemptive zoning in
anticipation that someday dispensaries may become legal under state law is a
consideration for local jurisdictions that may be concerned about a future
applicant becoming vested to a site that is inconsistent with the overall zoning
scheme of the jurisdiction.
3. Should local jurisdictions get involved in the zoning, regulation or licensing of
"collective gardens
This is a difficult issue. The new act does not require any local action but does
allow it under Sec. 1102. The possession of marijuana for any reason under
federal law may be a crime and the federal law does not recognize exceptions for
medical use of cannabis and marijuana except in authorized clinical situations.
Hence, an argument can be made that if local jurisdictions specifically allow,
license and regulate collective marijuana gardens they and the employees
executing the laws could run a fowl of the U.S. Attorney warnings expressed in
letter of April 14, 201 delivered to Governor Gregoire. They could be viewed as
aiding and abetting a violation of the federal controlled substances act. Some may
argue the threat is remote but no one can say it is impossible.
The other side of the argument is that unregulated and uncontrolled collective
gardens could become a public safety threat and therefore regulation and licensing
is a means of reducing the threat. Under the new law collective gardens may be
planted and marijuana grown by qualified patients of up to ten in number. There
are no provisions in the state law as to where in a local jurisdiction such gardens
may be started nor is there any provisions for fencing, screening, security or
safety. It is easy to envision that such collective gardens could become the locus
of thefts of marijuana plants and finished product and potentially violent
confrontations could occur. Collective gardens could be started next to schools
and churches. Some citizens may not appreciate relatively large scale open
marijuana cultivation next to their back yards, businesses, churches or schools.
There could be political pressure on local elected officials to regulate and license
cannabis production via "collective gardens." They may demand regulation and
licensing under the authority of Sec. 1102 "Cities and towns may adopt and
enforce any of the following pertaining to the production, processing, or
dispensing of cannabis or cannabis products within their jurisdiction: Zoning
requirements, business licensing requirements, health and safety
requirements, and business taxes."
(Author's Note: Business taxes on collective gardens is likely not legal as
"sales" of medical cannabis is not authorized by the partially vetoed act.)
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Local police authorities may feel that zoning, licensing and regulation of
collective gardens would assist them in tracking and distinguishing legal grow
operations from illegal ones.
There does not appear to be any express authority or provision in the new act
that would allow the outright banning of collective gardens by local
jurisdictions. Sec. 401 of the act directly empowers qualified users to start and
maintain collective gardens. This would appear to preempt local authorities from
doing outright bans on collective gardens on private property. Likewise, local
jurisdictions could not ban individual qualified patients or their providers from
cultivation of medical marijuana/cannabis on private property or at their homes so
long as they have the proper documentation and limit their possession to 15 plants
or 24 ounces of useable cannabis.
If the decision is made to zone, license and regulate collective gardens by the
local jurisdiction care will be need to make sure that an appropriate legislative
history is developed to document the negative impacts of unregulated collective
gardens and to narrowly fashion regulations tailored to address those negative
impacts. Failure to do so could lead to challenges that the regulations or zoning
violated substantive due process protections under the Constitution. Members are
advised to work closely with their legal counsel on these issues.
If Members think that zoning regulation and licensing of collective gardens is in
their best interest they may wish to quickly impose a moratorium prohibiting their
establishment for a brief period of time to develop the necessary legislative
history and to adopt appropriate ordinances for zoning, licensing and
regulating collective gardens.
WCIA strongly advises against Members allowing use of public property or
public "pea patches" for use as "collective gardens" where medical
marijuana /cannabis is grown. It would expose the jurisdiction to
unnecessary liability claims as a landlord under premises liability law if
other legal users of the public lands were injured due to criminal
activity /thefts potentially associated with the production of the cannabis
products.
Conclusion
The truncated and partially vetoed version of ESSSB 5073 signed into law by Governor Gregoire
becomes effective on July 22, 2011. Medical marijuana /cannabis dispensaries that sell cannabis
products remain illegal. The fact that the Legislature went to great lengths to try and make them
legal and then failed by virtue of the Governor's veto; re- enforces the argument that they were
never legal. Nevertheless, proponents of medical cannabis will continue to argue to the contrary
and will continue to urge novel schemes and models for the distribution of medical cannabis to
local jurisdictions in hopes of obtaining business licenses and therefore apparent legitimacy. It is
suggested that any such new model be closely analyzed to determine where the profit may be
in
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made in the business model. If it ultimately involves a sale of marijuana or cannabis products it
is likely illegal under both state and federal law.
The political battle promises to be carried on in the future. Governor Gregoire's signing letter
partially vetoing ESSSB 5073 states she remains open to legislation that would exempt
qualifying patients and their providers from criminal penalties when they join a cooperative to
distribute medical marijuana. The proponents of ESSSB 5073 promise to return in the next
legislative session to have another go at it. It is not clear how any future effort will have success
as long as the federal law remains intact and continues to criminalize possession and sale of
marijuana regardless of its designation as for medical treatment. Future case law may also
clarify or further obscure the picture. It appears the only certainty is more uncertainty as to what
future law in this area may develop.
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