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HomeMy WebLinkAboutord2001-037WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2001 -182B CEARANCES arc W Aamot I o I VDaieReceiwdinCiwmcff06jve in Coumcil0 fC" lC 1 7 2001 GN1COLINP' UNCIL A enda Date 7 -24 -01 Ass' ne don Council Sylvia Goadw;n al Hart ren Frekes dgm: Execudw: PereKremen SUBJECT.' Extension of an emergency ordinance allowing adult businesses in the light impact industrial zone as an administrative approval use rather than with a conditional use permit, shorteningpermit time frames, and establishingprecise and objective approval criteria. ATTACHMENTS: (1) Proposed Ordinance. SEPA review required? ( x ) Yes ( ) NO SEPA review completed? ( x ) Yes ( ) NO Should Clerk schedule a hearing? ( ) Yes ( ) NO Requested Date: July 24, 200! SUMMARY STATEMENT: The County Council adopted Ordinance 99- 070 in November of 1999 establishing regulations for adult businesses. This ordinance allowed adult businesses in certain light impact industrial zones g P with a conditional use permit. There is now concern that the conditional use permit process maybe too lengthy under case law. Therefore, the County Council adopted emergency amendments to the Comprehensive Plan and zoning on May 29, 2001. These emergency amendments allow adult businesses to locate in light impact industrial zones as an administrative approval use, rather than with a conditional use permit, because the administrative a P p establ process is much shorter. Additionally, the emergency amendments established precise and objective approval criteria, in accordance with case law. The original emergency ordinance is only valid for 60 days. Permanent amendments to the adult business regulations will take longer than 60 days to proceed through the standard planning process. Therefore, the Council is requested to conduct a public hearing and re -adopt the emergency ordinance. Distribution Request t "amore moss who enouu.rceueaaopy oiler conno0 action. It specie names to the right. ADS Fadinfes Management ADS Ivnance ADSHuman Resmdmsa ADStnfo Seralres Assessor Auditor eoopmarcveE enshm District clan Eacadve Health Hmring Examiner a COUNCIL ACTION TAKEN: 2001 - 182 B ]/24/2001: Adopted 6 -0, Imhof absent, Ord. tF2001 -03] R Related File Numbers: AB # 99 -074, AB # 99412, ondA61001 -182. ✓uven'le Parks Planning Ho[ Han Prosecutor Public Works Sheri Superior Court Treasurer other Ordinance or Resoludorl�VUmber it item): ' jf D I:Planningaezone\Eme mcy 2001 \B E01 -00002 (Adult Business Temporary Ord - extension) Agenda Bill.doc SPONSORED BY: Planning PROPOSED BY: Planni INTRODUCTION DATE: 7n754/01 ORDINANCE # 2001 -037 EXTENDING TEMPORARY AMENDMENTS TO THE ADULT BUSINESS PROVISIONS OF THE WHATCOM COUNTY COMPREHENSIVE PLAN AND THE OFFICIAL WHATCOM COUNTY ZONING ORDINANCE (TITLE 20) AND DECLARING AN EMERGENCY WHEREAS, Ordinance 99 -070 was passed in November of 1999 allowing adult businesses in certain light impact industrial zones with a conditional use permit; WHEREAS, processing time for conditional use permits is 90 to 120 days under WCC 2.33.090; and WHEREAS, case law suggests that processing should occur within specific and brief time limits; and WHEREAS, administrative approval use permits can be processed more quickly than conditional use permits; WHEREAS, case law also suggests that approval criteria must be precise and objective; and WHEREAS, the criteria for granting administrative approval use should be specifically adapted for adult businesses so that the criteria are precise and objective; and WHEREAS, section 2.40 of the Whatcom County Charter limits an emergency ordinance to a period not to exceed 60 days from the date ordinance became law; and WHEREAS, RCW 36.70.795 permits adoption of interim official controls as long as a public hearing is held within 60 days of adoption; and WHEREAS, the County Council adopted Emergency Ordinance # 2001 -026 on May 29, 2001, shortening permitting time frames and creating objective and precise criteria for adult businesses; and WHEREAS, permanent amendments to the adult business regulations will not be able to proceed through the standard planning process before Ordinance # 2001 -026 expires; and WHEREAS, the amendments adopted under Ordinance # 2001 -026 should be temporarily extended until permanent amendments can be adopted. Page 1 The Council makes the following findings of fact: 1. A potential deficiency in Ordinance 99 -070 has been identified. This deficiency can be corrected by making time frames for approval of adult businesses specific and brief and by establishing precise and objective approval criteria, in accordance with case law. This potential deficiency was corrected by Ordinance 2001 -026, but these emergency amendments will expire before permanent amendments can proceed through the standard planning process. 2. The Growth Management Act (GMA) establishes planning goals that are to guide local governments when adopting development regulations, such as zoning ordinances (RCW 36.70A.020). 3. GMA planning goal # 7 indicates that "Applications for both state and local government permits should be processed in a timely and fair manner to ensure predictability" (RCW 36.70A.020(7)). 4. Whatcom County Comprehensive Plan GOal 2D is to "Refine the regulatory system to ensure accomplishment of desired land use goals in a fair and equitable manner." 5. Fair permit processing requires that a procedure for siting adult businesses provide brief processing times and precise and objective approval criteria. 6. Adult businesses can create adverse secondary effects, which are documented in the record. 7. The approval criteria are intended to address adverse secondary effects associated with adult businesses. The Council makes the following conclusions: This interim regulation relating to adult businesses is consistent with the planning goals of the Growth Management Act (RCW 36.70A.020). 2. This interim regulation is consistent with the Whatcom County Comprehensive Plan. 3. This interim regulation will serve the public interest by providing a framework for processing adult business applications in a quick and objective manner, as required by case law, and addressing adverse secondary effects associated with adult businesses. Page 2 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that: Section 1. Policy 2AAA -1 of the Whatcom County Comprehensive Plan is hereby amended as shown on Exhibit A. Section 2. The text of the Official Whatcom County Zoning Ordinance is hereby amended as shown on Exhibit B. Section 3. Adoption of this emergency ordinance is necessary for the protection of the public health or safety. This emergency ordinance shall take effect immediately when the County Executive signs it and shall expire on the 6130 day following the date the ordinance becomes law or when permanent amendments to the Official Whatcom County Zoning Ordinance (Title 20) relating to adult businesses become effective, which ever comes first. Section 4. Adjudication of invalidity of any of the sections, clauses, or provisions of this ordinance shall not affect or impair the validity of the ordinance as a whole or any part thereof other than the part so declared to be invalid. ADOPTED this 24 day of Su1v , 2001 ( ATTEST: Dana Brown - Davis, Council Clerk APPR VEDDvw /as to form. / Civil Deputy Prosecutor Page 3 WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHING /7� (. Ward Nelson, Chairperson Approved O Denied `gete Kremen, Executive Date: A 17 ml Exhibit A Amend Adult Business Policy 2AAA -1 of the Comprehensive Plan as follows: GOAL 2AAA: Establish criteria for the location of adult businesses. Policy2AAA -1: Adult businesses will be allowed with ea.,a,fianal use administrative annroval use permits in Light Impact Industrial zoning districts that are located within City Urban Growth Areas. Adult businesses will not be allowed in the Light Impact Industrial zone immediately southeast of the Bellingham International Airport because, as the main entrance to the airport, it serves as a gateway to the community. Policy 2AAA -2: Adult businesses will not be allowed in other zoning districts. Policy 2AAA -3: Adult businesses will not be allowed within 1,000 feet of a school, day care, church, park, library, residential zoning district, rural zoning district, Interstate -5 or state highway. Policy2AAA -4: An adult business will not be allowed within 1,000 feet of any other adult business. Policy 2AAA -5: Non - conforming adult businesses will be terminated within one year of the adoption of this amendment. A maximum of four one - year extensions may be granted if needed to recoup financial expenditures made in the business. Page 4 Exhibit B Amend the Official Whatcom County Zoning Ordinance as follows: 20 66 130 Administrative approval uses The following uses we remained with administrative approval pursuant to WCC 20.84.235. 1314-57 An adult business enclosed within a building, when located in a city's urban growth area, provided that: (1) The building that contains the adult business and signs relating to the business are not within 1,000 feet of any of the following: (a) The outside boundary of any parcel that already contains a public school, private school, or day care; (b) The outside boundary of any parcel that already contains a church or other house of worship; (c) An existing public park; (d) The outside boundary of any parcel that already contains a public library; (e) A residential or rural zoning district (including Urban Residential, Urban Residential Medium Density, Urban Residential- Mixed, Residential Rural, Rural one dwelling/two acres, Rural one dwelling /five acres, Rural one dwelling/10 acres and residential zones within the city limits); (f) Interstate 5 or a state highway; or (g) The outside boundary of any parcel that already contains another adult business. (2) Directional signs permitted under WCC 20.80.470 are not subject to the 1,000 -foot buffer of subsection (1) of this section. (3) Adult businesses are prohibited within the Light Impact Industrial zone located southeast of the Bellingham International Airport shown on Map 4 of the Urban Fringe Subarea Plan. (4) An adult business shall not sell, provide or allow performances, films, publications, or other activities that are prohibited by state law or county ordinance. (5) Planning and Development Cervices shall send a notice of the proposal to all owners of oroperty within 1.000 feet of the external boundaries of the subject property at least 15 days prior to the decision date Public notice shall be published in the news a er of record at least 5 days prior to the decision. This is in addition to the requirement of WCC 20.84.235(2). Page 5 20.84.235 Administrative approval uses. (1) The applicant shall submit an Administrative Approval Use anplication form Chcc'.: `stL ppfe al Fen to the planning and development services department together with all of the following: a. eppreptiat"Pocumentation of compliance with approval requirements;; b. a The filing fee specified in the Unified Fee Schedule; c. Tvoed self - adhesive mailing labels with the names and addresses of each property owner within 300 feet of the external boundary of the subject property. as shown on the records of the County Assessor�, d. atnt "east4Three copies of a site plan at an- apgreprtete scale of 1 " =20' for sites that less than five acres and 1" = 40' for sites five acres or more (if requested by the applicant a different scale may be approved by planning and development serviced The site plan shall showing locations of property boundaries, locations and sizes of structures, vehicular access and parking areas, locations and types of water and sewer services, and locations and types of structures on adjacent properties. (2) Upon receipt of application materials per subsection (1) of this section, the planning and development services department shall send a notice of the proposal to all owners of property within 300 feet of the external boundaries of the subject property at least 15 days prior to the decision date. The applicant shall also post public notices of the proposal on all road frontages of the subject property so as to be visible to adjacent property owners and to passing motorists. Said notices shall be provided to the applicant by the planning and development services department and shall remain in place for at least 15 days prior to the decision. A signed affidavit of posting shall be returned at least one week prior to the decision. Property owners who have been notified of the proposal shall have a period of 15 days from the date printed on the mailed notice or 15 days from the posting of notice on the property, whichever is later, within which to submit to the planning and development services department a written response in support of or in opposition to all or parts of the proposal. Q Planning and development services shall approve or deny all administrative approval use applications, a�Decisions for all administrative use permits except adult businesses shall be based upon compliance with the criteria established for the proposed use in the appropriate zone district, the requirement of this section and of WCC 20.84.220. Decisions for administrative approval use permits for adult businesses shall be based solely upon the criteria in WCC 20.84.235(7) Page 6 20.84.235(1). IS) (3) If the permit is denied, the applicant shall be notified in writing. The grounds for denial and the applicant's right to appeal shall be set forth in this notification. f (4) Any party of record may appeal the decision. For purposes of administering this section, parties of record shall be defined as the applicant, the owner of the property, and any person who has submitted a written response to the proposal. Each application for appeal of an administrative approval shall be accompanied by a fee as specified in the Unified Fee Schedule. (Ord. 97 -069, 1997; Ord. 95 -031, 1995; Ord. 91 -0099 1991). (7) Criteria for adult businesses Prior to granting administrative approval for an adult business planning & development services shall find that the proposed use at the proposed location satisfies or will satisfy all the following criteria (a) The adult business will be in accordance with Policies 2AAA -1 through 2AAA -4 of the Whatcom County Comprehensive Plan (b) The adult business will be consistent with WCC 20.66.13 1 (c) The adult business shall be closed from 2 a.m. to 10 a.m. if it contains: (1) An adult eating or drinking establishment as defined by WCC 20.97.008(2): or (iil An adult theater as defined by WCC 20.97.008(3)' or (iii) An other adult commercial establishment as defined by WCC 20.97.008(4)7 or (iv) One or more viewing booths without doors, nhysical barriers or visual barriers: and ii. Each viewing booth shall have at least one 100 -watt lijzht bulb that is Properly working and turned on when business is open iii. Aisles outside viewing booths shall be a minimum of five feet wide For adult businesses containing one or more viewing booths a condition of administrative approval shall reouire an unannounced inspection every six months during business hours by Whatcom County to ensure that measures (d)(i) throw fh (d)(iii) above are being implemented on an on-going basis Page 7 20.84.240 Appeals. The hearing examiner shall have the authority to hear and decide, in conformity with this ordinance, appeals from any order, requirement, permit decision or determination made by an administrative official in the administration or enforcement of this chapter where more than one interpretation is possible; provided, that such appeal shall be filed in writing within 14 days of the action being appealed. If an appellant prevails in an appeal of an administrative approval decision, the appellant's appeal fees shall be refunded. The appeal fee on a code violation will be refunded if the appellant can prove by clear and convincing evidence that a violation did not occur. Appeals of administrative approval use permit decisions for adult businesses shall be made directly to the county council pursuant to WCC 20.92.825. and shall not be heard by the hearing examiner. (Ord. 99 -056, 1999; Ord. 96 -031 § 2, 1996). 20.92.825 Adult Business Appeals Appeals of administrative approval use permits for adult businesses shall be made directly to the county council and shall be subject to the following procedures (1) The applicant or any party of record may appeal an administrative approval use permit decision relating to an adult business to the county council (2) The appellant shall file a written notice of appeal at the county council office within 10 calendar days of the administrative approval use permit decision A fee, as established in the Unified Fee Schedule shall be naid to the county council office upon filing of any appeal (3) The county council office shall mail written notice to the administrative approval use permit applicant within five calendar days of receiving the appeal, if the appeal was not submitted by the applicant (4) The council office shall request the written record from planning and development services within three calendar days of receiving the appeal The written record shall be forwarded by planning and development services within three calendar days of the request from the county council office (5) Within three calendar days after receipt of the anneal, the county council office shall send a letter of notification to the appellant that a statement containing the appellant's basis for appeal and argument is due. The statement and argument, and aproof of service (affidavit of mailing) upon the administrative approval use permit applicant (if different from the appellant), must be filed in writing, along with 10 copies, with the clerk of the county council within 10 calendar days after the postmark date of the letter of notification. the council office. (7) The county council shall decide the appeal and issue written findings of fact and conclusions of law within 40 days of the date the appeal was filed. (8) The county council shall affirm the decision of planning and development services unless a maiority of the entire county council finds that the decision is: (a) Based upon an error of law: or (b ) Clearly erroneous on the entire record. (9) The county council may, where their decision results in project approval, impose. modify or delete conditions based solely on the criteria of WCC 20.84.235(7). (10) The procedures of WCC 20.92.600, 20.92.700. 20.92.810. and 20.92.820 shall not apply to appeals relating to adult businesses. Page 9