HomeMy WebLinkAboutord2001-038WHATCOM COUNTY COUNCIL AGENDA BILL NO.
2001 -182C
CLEARANCES
Indoor
Date
Dare Receivedin CiamcdOlfice
Agenda Date
Assigned us
Originator: Man W. Annual
.l 1•S q
_ � �_
7 -24 -01
Introduction
Division Head: Syivia Goodwin
1 O
J'] /01
Hearing
Depk Head: Rd Hart
JUL 1 7 2001
WHATCOM COUN
COUNCIL
Prosxumr: Karen Fmkes
_
Purchanng'Radge"
E cudw: PowKremen
SUBJECT: Ordinance amending a comprehensive plan policy and zoning regulations relating to adult businesses.
ATTACHMENTS:
(I) Proposed Ordinance
(2) Whmcom County Planning Commission Proceedings
(3) Whatcom County Planning & Development Services Staff Report
Note: The record is on file with the Courms Council Office.
SEPA review required? ( x )Yes ( ) NO
Should Clerk schedule a hearing? (x )Yes ( ) NO
SEPA review completed? ( x ) Yes ( ) NO
Requested Date: August 7, 2001
SUMMARY STATEMENT: The subject proposal would modify the adult
Distribution
Request
business rates as follows:
➢ Permits: Amend the Whatcom County Comprehensive Plan and zoning
ordinance so that adult businesses are allowed with an administrative approval
Indicate those who should receive
Lot specific names to rise right .
a copy Per Council action. j
use permit, rather than with a conditional use permit, as formerly required.
ADS Foci4'des Management
• Time frames: Provide specific and brief timeframes for processing
ADS Finance
administrative approval use permits and associated appeals for adult
ADSHuman Resourrzs
businesses.
• Approval Criteria: Replace the existing administrative approval use permit
criteria with specific approval criteria tailored to adult businesses, including
hours of operation, open booth requirements, lighting requirements, minimum
aisle widths, and prohibiting holes in common walls between viewing booths.
• Notice: Require mailing of notice to property owners within 1,000' of an adult
business, instead of 300' as currently required. Additionally, require publishing
notice in the newspaper and posting of notice.
➢ Apceals: Provide direct appeal of Planning & Development Services' decisions
on administrative approval use permits to the County Council (skip the appeal
AASInfo Services
Assessor
Author
ea Pemave Extension
Distrla Court
Execedve
Health
H rips ionuir saif
Jas
to the hearing examiner in order to expedite the process).
Under state law, a planning commission's recommendation of approval on any
zoning amendment most be by the affirmative vote of not less than a majority of the
total members of the Commission. The Planning Commission voted on several
motions, but could not reach a majority vote. Therefore, the Planning and
Develo me d: Services recommendation is presented as the proposed ordinance.
COUNCIL ACTION TAKEN:
Juved/e
Parks
2001 -182C 7/2412001: Introduced
81712001: Amended and rat led 5-1, Brenner opposed,
Hoag absent, Ord. 112001 -038
Planning
Ha! Hart
Prosecutor
Public Works
Sheri
Superior Court
Treasurer
none
Related File Numbers: All # 99 -074, All # 99 -412, and AB 2001 -182.
Ordinance or Resolurjpn Number
(this item): ."IrSC
. D '3
1:2 Planning Division Ute¢one coning 20001120N2001 -00002 (Adult Business Amend) Agenda Bill.doe
SPONSORED BY: Planning
PROPOSED BY: Planning
INTRODUCTION DATE: 7/24/01
ORDINANCE # 2001 -038
AMENDING A COMPREHENSIVE PLAN POLICY AND ZONING ORDINANCE
REGULATIONS RELATING TO ADULT BUSINESSES
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, 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, the Planning Commission held a public hearing on the proposal; and
WHEREAS, the County Council has considered the Planning Commission's Proceedings.
The Council makes the following findings of fact and conclusions:
FINDINGS OF FACT
1. Whatcom County's Comprehensive Plan provisions and zoning regulations relating to
adult businesses were originally adopted by the County Council on November 9, 1999
under ordinance 99 -070.
2. On May 29, 2001, the Whatcom County Council adopted Ordinance # 2001 -026
temporarily amending the Whatcom County Comprehensive Plan and zoning ordinance.
The temporary amendments allowed adult businesses with administrative approval rather
than with a conditional use permit as formerly required, created specific and brief time
frames for processing these permits, and created precise and objective approval criteria.
3. Notice that the emergency ordinance was adopted was published in the Bellingham
Herald on June 2, 2001.
4. On May 29, 2001, the Whatcom County Council adopted emergency Resolution # 2001-
027 initiating the process to permanently amend the Comprehensive Plan to allow adult
businesses as an administrative approval use, rather than with a conditional use permit.
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5. Companion amendments to the Official Whatcom County. Zoning were docketed by
Planning and Development Services to allow adult businesses with administrative
approval rather than with a conditional use permit, create specific and brief time frames
for processing these permits, and create precise and objective approval criteria.
6. Notice of the Planning Commission hearing on the subject amendments was published in
the Bellingham Herald on June 28, 2001.
7. The Planning Commission held a public hearing on the subject amendments on July 12,
2001. ia,
8. A Determination of Non - significance was issued under the State Environmental Policy
Act (SEPA) for the original adult business regulations (Ordinance 99 -070) on November
20, 1998. The SEPA Official determined on May 22, 2001 that a new SEPA threshold
determination is not required.
9. The Growth Management Act (GMA) establishes planning goals that are to guide local
governments when adopting comprehensive plans and development regulations, such as
zoning ordinances (RCW 36.70A.020).
10. GMA planning goal # 7 states 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)).
11. 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."
12. Whatcom County Comprehensive Plan Policy 2D3 is to: "Streamline development
regulations to eliminate unnecessary time delays."
13. Case law suggests that fair permit processing for adult businesses must provide brief
processing times and precise & objective approval criteria.
14. The subject amendments facilitate quick processing by allowing adult businesses through
the administrative approval process, rather than through the conditional use permit
process. Additionally, specific and brief time limits are placed on processing
administrative approval permits for adult businesses and related appeals.
15. The subject amendments facilitate objective decision - making by establishing clear
approval criteria that do not allow the decision -maker to employ excessive discretion.
16. Studies and information from other jurisdictions relating to adult businesses, which are in
the record, indicate that adult businesses have negative secondary effects upon
communities including increased crime (especially sexual crimes) and exposure of minors
to illegal activities.
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17. The subject amendments include a 2 a.m. to 10 a.m. closure period for certain adult
businesses. This closure period has three purposes. The first purpose is to prevent the
flow of patrons from bars (which close at 2 a.m.) to adult businesses, as alcohol is a
contributing factor to crime. The second purpose is to provide reduce operations at night,
when it is more difficult for police to apprehend suspected criminals and when there is
heightened risk to officers, while still allowing reasonable hours of operation (16 hours a
day, seven days a week). The third purpose is to prevent the reopening of adult businesses
until children are on buses and off to school in the morning.
18. The subject amendments include open booth and lighting standards. It also prohibits
holes in common walls between viewing booths. According to information, in the record,
sexual conduct commonly occurs in viewing booths, and through holes in viewing
booths, in adult businesses resulting in the deposition of bodily fluids including semen
and blood. Additionally, the record indicates that the public and employees in adult
businesses who come into contact with these bodily fluids are at risk of disease
acquisition. Diseases transmitted through bodily fluids can include HIV /AIDS, hepatitis
B, hepatitis C, syphilis, gonorrhea and chlamydia. The open booth, lighting, and common
wall requirements are intended to discourage sexual activity in the booths, which will
reduce the possibility of disease transmission.
19. The subject amendments include a requirement that aisles adjacent to viewing booths
must be a minimum of five feet wide. According to information in the record, five -foot
wide aisles allow multiple police officers adequate space to make arrests adjacent to
viewing booths, while trying to avoid bodily fluids that may be present.
20. Whatcom County Comprehensive Plan Policy 2G -1 is to "Improve methods to notify
affected property owners of proposed land use changes "
21. The subject amendments require mailing notice to property owners within 1,000' of the
subject property instead 300' as required for most other administrative approval uses.
Additionally, the amendments require publishing of notice in the newspaper, which is not
required for other administrative approval uses. These increased notice provisions will
not affect the approval criteria or time frames for processing administrative approval use
permits for adult businesses.
22. The notice provisions to a broader audience are appropriate because adverse secondary
effects, such as increased sexual crime and exposure of minors to illegal activities, are
associated with adult businesses but are not associated with other administrative approval
uses.
1. The subject amendments relating to adult businesses are consistent with the planning
goals of the Growth Management Act (RCW 36.70A.020).
2. The subject amendments are consistent with the Whatcom County Comprehensive Plan.
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3. The subject amendments 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.
4. Studies and information from otherjurisdictions document the secondary effects of adult
businesses, which include increased crime (especially sexual crimes) and exposure of
minors to illegal activities.
5. The subject amendments address the documented secondary effects of adult businesses,
preserve public health by reducing the possibility of disease transmission, and preserve
public safety. Therefore, the amendments serve a substantial govenunent6aterest.
6. The amendments are narrowly tailored to serve the County's interest in addressing
adverse secondary effects of adult businesses, preserving public health, and preserving
public safety.
7. Adult businesses that are subject to the closure period can still be open seven day a week,
16 hours a day. Therefore, the subject amendment will allow reasonable alternative
avenues of communication.
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. Other policies are shown in Exhibit A for context, but are not being amended
nor readopted. These other policies remain in full force and effect as adopted by Ordinance 99 -070.
Section 2. The text of the Official Whatcom County Zoning Ordinance is hereby amended as
shown on Exhibit B.
Section 3. 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 7 day of August , 2001
ATTEST-
Dana Brown- Davis, Vouncil Clerk
APP VED as to for
ivil Deputy Prosecutor
WHATCOM COUNTY COUNCIL
WHATCP Y ASHINGTON
Ward Nelson, Chairperson
(� ed ( Denied
Pete Kremen, Executive
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Date: 4S�/
Exhibit A
Amend Adult Business Policy 2AAA -1 of the Comprehensive Plan as follows:
GOAL 2AAA: Establish criteria for the location of adult businesses.
Policy 2AAA -1: Adult businesses will be allowed with eeaditienni as administrative approval
use permits in Light Impact Industrial zoning districts that rtre 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 cue,
church, park, . library, residential zoning district, rural zoning district,
Interstate -5 or state highway.
Policy 2AAA -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.
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Exhibit B
Amend the Official Whatcom County Zoning Ordinance (Title 20) as follows:
20.66.130 Administrative approval uses.
The following uses are permitted with administrative approval pursuant to WCC
20.84.235.
.131 334 An adult business enclosed within a building, when located in a city's hrban 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 services shall send a notice of the proposal to all owners of
property within 1.000 feet of the external boundaries of the subject pronertv at least 15
calendar days prior to the decision date. Public notice shall be published in the
newspaper of record at least five calendar days prior to the decision date. This is in
addition to the requirement of WCC 20.84.235(2).
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20.84.235 Administrative approval uses.
(1) The applicant shall submit an Administrative Approval Use application form
to the planning and development services department
together with all of the following:
a. appretniete4Documentation of compliance with approval requirementsv
b. a The filing fee specified in the Unified Fee Schedule:;
c. Typed self - adhesive mailing labels with the names and addresses of each propert y
owner within 300 feet (1.000' for adult businesses) of the external boundary of the
subject property. as shown on the records of the County Assessornanreez
feet of the e�ftemal boundinies of the 9*�n d. d- aNeasE•fThree copies of a site plan at an- apprepeie
ga te scale of 1" =20' for sites
services). 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.
In Planning and development services shall approve or deny all administrative approval
use applicat ions. and- shedse-Hese -a-d Decision for all administrative approval use
Hermits 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).
M (3) If the permit is denied, the applicant shall be notified in writing. The written notice
shall be mailed within two calendar days of the decision. The grounds for denial and the
applicant's right to appeal shall be set forth in this notification.
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(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 -009, 1991).
(7) Criteria for adult businesses.
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 20.66.131.
(c) The adult business shall be closed from 2 a.m. to 10 a.m. if it contains:
(i) An "adult eating or drinking establishment' as defined by WCC
20.97.008(2); or
(ii) 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): or
(iv) One or more viewing booths.
customer enters and exits the booth that is without doors, physical barriers, or
visual barriers: and
iii. Aisles or hallways adiacent to viewing booths shall be a minimum of five
feet wide'
iv. There shall be no holes or openings in common walls between viewing
booths.
For adult businesses containing one or more viewing booths, a condition of
administrative approval shall require an unannounced inspection every six months
during business hours by Whatcom County to ensure that measures (d)(i) through
(d)(iv) above are being implemented on an on -going basis.
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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 proveAgy clear and
convincing evidence that a violation did not occur. Appeals of administrative aonroval
use permit decisions for adult businesses shall be made directly to the county council
pursuant to WCC 20 92 825. and shall not be subject to the provisions of WCC
20.84.240. (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 subiect to the following procedures:
(1) The applicant or anyparty 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 for anneals to the county council, shall be
paid 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 o he 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 five calendar days of receiving o he appeal. The written record shall be
forwarded by planning and development services within five calendar days of the
request from the county council office.
(5) Within five calendar days after receipt of the anneal, the county council office shall
send a letter of notification to the apnellant that a statement containing the appellant's
basis for appeal and argument is due The statement and argument and a proof of
service (affidavit of mailing) upon the administrative approval use permit applicant 6
different from the appellant), must be filed in writing, along with 10 conies, with the
clerk of the county council within 10 calendar days after the postmark date of the
letter of notification.
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(6) An argument or response from the administrative approval use applicant (if different
than the appellant) shall be filed in writing alone with 10 conies, within 10 calendar
days after the date of filing the anvellant's argument with the council office
(7) The county council shall decide the appeal and issue written findings of fact and
conclusions of law within 40 calendar days of the date the anneal 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 isi,
(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 nroiect 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
fly to appeals relating to adult businesses.
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