City of Burien
BURIEN PLANNING COMMISSION MEETING
June 25, 2002
6:30 to 9:00 p.m.
City Council Chambers
MINUTES
Planning Commission Members Present: Robert Pierce, chair; Gerald Robison; Len Boscarine; Mickey Conlin; Jon Newton; Douglas Rahn; Robert Simpson-Clark; Kirsti Weaver; Bruce White
Absent: None
Others Present: Scott Greenberg, planning director; David Johanson, senior planner; Gerry Lindsay, recording secretary
Chairperson Pierce called the meeting to order at 6:35 p.m. Upon the call of the roll, all commissioners were present with the exception of Commissioner Boscarine, who arrived at 6:54 p.m.
Agenda Confirmation
Motion to approve the agenda as printed was made by Commissioner Robison. Second was by Commissioner Rahn and the motion carried unanimously.
Approval of Minutes
A. June 11, 2002
Referring to the last paragraph on page 6, Chairperson Pierce asked that the second sentence be revised to read “What if three large car dealers could move their establishments just three miles to the north and gain a much better return on their investments?”
Motion to approve the minutes as amended was made by Commissioner Robison. Second was by Commissioner Simpson-Clark and the motion carried unanimously.
Public Comment
A. Public Hearing and recommendation to the City Council regarding potential Zoning Code and Comprehensive Plan amendments related to secure community transition facilities
Commissioner Pierce declared the public hearing open.
Scott Greenberg, planning director, reminded the Commission of the deadline for adopting regulations regarding the siting of Secure Community Transmission Facilities (SCTF), noting that it must be completed by September 1. The meeting of the City Council prior to that date is August 19. That means the Planning Commission must make its recommendation no later than July 9.
Mr. Greenberg said the proposal is to allow SCTFs in the industrial zone only, and in Special Planning Area 4 (SPA-4), if it is created. SPA-4 is the Northeast Special Planning Area which, if created, will become a non-residential zone. Under the recommendation, no SCTF could house more than three persons. Siting of such facilities should not be within 330 feet of any residential zone or other community residential facility. SCTFs would not be permitted to locate adjoining, immediately across the street or parking lot from, or within the line of sight of a risk potential facility as defined in RCW 71.09.020. The list of risk potential facilities included in the proposed ordinance might be somewhat broader than that set forth by state law and Mr. Greenberg said he would have no argument against removing the list and simply referencing the state law.
Continuing, Mr. Greenberg said the proposal would require certain on-site facilities that are intended to be consistent with RCW 71.09, and certain application materials to assist the decision maker, which under the recommendation would be the City Council, in getting through the process by having necessary information right up front.
Commissioner Newton asked if the proposal would take into account risk potential facilities in adjacent jurisdictions in siting decisions. Mr. Greenberg allowed that it would. He said there are two industrial zones in Burien. The southern zone includes the YMCA, and the northern zone is located where the mental health center is. The northern zone may be out of the picture given that it is located within the proposed 3rd runway Approach Transition Zone where people are not allowed to live. The southern zone is more than 330 feet away from residential uses in adjacent jurisdictions. The entire southern zone would not qualify because it does abut residential uses located within Burien.
Commissioner Conlin noted that in the southern industrial zone locating a SCTF might prove difficult given the sight lines to the YMCA. Mr. Greenberg said the siting criteria would be applied on a case-by-case basis. A facility could likely be sited near where the school bus barn is south of 176th. The Commissioners were shown a map indicating the areas of the city where SCTFs could potentially be located under the proposed criteria.
Ms. Beverly Wilson spoke on behalf of the Department of Social and Health Services, PO Box 45322, Olympia. She said the department appreciates the efforts of the Commission and the staff to work within the state law. She said the proposal has been reviewed and a few concerns have been raised. The proposal to site facilities using a Type III review, one of the criteria of which is that uses must be consistent with the purpose and intent of the zone in which the site is located. The concern of the state is that the purpose and intent statement for Burien’s industrial zone may not conform to the SCTF use, and therefore might be used to deny a land use permit. The statement should be reviewed to make certain that an SCTF could be allowed in the zone. With regard to the proposal to limit SCTFs to no more than three beds, Ms. Wilson said state law requires DSHS to project and allocate beds by county based on a set formula. In doing that, the need for King County was projected at up to 15 beds through 2007. The proposal to limit facility size to three beds is more restrictive than state law and could potentially be viewed as excluding SCTFs. The department wants to see that language revised.
Continuing, Ms. Wilson said the proposed criteria to not allow SCTFs within 330 feet of residential zones also is of concern to DSHS. She said she understood the intent, but suggested the provision could be too restrictive and could ultimately preclude the siting of a facility. The definitions of risk potential locations are broader than the state definitions and should be addressed. DSHS also is concerned about the provision to provide one mile of separation between SCTFs and other similar facilities, especially given that “similar facilities” is not defined.
Ms. Wilson said DSHS was baffled by the proposed requirement for SCTFs to provide on-site dining, laundry facilities, and recreation facilities. SCTFs are residential programs and as such all of those things will be provided as a matter of course.
Chair Pierce said the intent is to make sure that the zoning code would continue to mandate on-site dining and laundry facilities should the state at some future time change the rules for SCTFs. Commissioner Conlin concurred, adding that the state has in the past begun programs by requiring one thing and then over time changing the rules. Chair Pierce said the Commission did not want to see the state begin with a residential facility and over time turn it into an outpatient facility or halfway house. Ms. Wilson said state law is very clear about the intent and purpose of SCTFs. Chair Pierce said he understood that but noted that the state has the prerogative to change its own laws.
Mr. Greenberg said the provision in question was written by the City Attorney’s office. He suggested that the requirement does nothing more than clarify that SCTFs are indeed residential facilities. For example, the City code definition of a dwelling unit includes buildings that include a kitchen.
Ms. Wilson noted that the proposed ordinance would require extensive buffering between SCTFs and adjacent uses, but what is meant by “extensive buffering” is not spelled out.
Ms. Wilson also noted that the proposal would require the state to submit a detailed security plan for any SCTF up front in the application. She said that for obvious reasons, the state does not disclose its security plans in a manner that would be part of the public record. She reminded the Commissioners that people are placed in SCTFs by court order, and there are court-ordered conditions that the residents and everyone involved must meet. DSHS maintains a very close partnership with local law enforcement agencies and everyone is informed of the security measures and when people will be transported to different locations. If those security issues were to be made part of the public record, the safety of the community could in fact be threatened.
Commissioner Robison asked if it would be appropriate to require the police chief to approve the security plans for SCTFs. Ms. Wilson said the law provides for an agreement between the jurisdiction siting a SCTF and DSHS, and security information would be included in that agreement. The City could require that security issues be properly addressed.
Chair Pierce said the city was simply seeking some assurance that SCTFs will be fully secure facilities. The definition of a fully secure facility as spelled out in state law is ambiguous at best, and the City should be fully informed of the security details. DSHS has had many difficulties in the past in acting to keep communities safe.
Commissioner Robison agreed that the details of security should be kept out of the public record. There should be a requirement for all issues regarding security to be worked out between DSHS and the appropriate law enforcement agency rather than with the planning department. The ordinance could require the police chief to approve the security plan as a provision of obtaining a permit.
Ms. Wilson noted that state law requires DSHS to enter into long-term contracts memorializing the agreement between the state, the city or the county for the operation of facilities. The contracts must be separate from any contract regarding mitigation due to the facility, and must include a clause that states that the state is not obligated to continue operation of the facility — the operation of facilities is contingent upon funding by the state Legislature, and the department can elect to have a private contractor operate facilities. There are a number of specific statutory requirements imposed on DSHS for how to run the programs. For instance, staffing ratios and escort requirements are specifically mandated.
Commissioner Conlin asked what kind of additional burden SCTFs would place on the already overloaded Burien police department. Ms. Wilson allowed that the state law provides for mitigation contracts to deal with public safety issues. The Legislature would have to appropriate the funds, but that could be part of a request package. There has been no funding for any SCTF to date with the exception of the facility on McNeil Island, and no additional facilities will be sited until the budgeting process has been completed and there are funds available.
Commissioner Rahn pointed out that SCTFs are intended to house sexual offenders who have mental deficiencies and who are likely to re-offend. He said it is not very comforting to hear the state say there will be a security plan but that it will not be revealed. Ms. Wilson said the state would be willing to share security plans with local law enforcement agencies, but does not want to make the plans a part of the public record. There are regular weekly updates provided to all law enforcement agencies affected by the McNeil Island facility regarding trip plans and the like. The requirements for public noticing and the like are and should be part of the public record, but not the specific routines and practices to be followed to keep the facilities secure.
Ms. Wilson said because of constitutional issues people who have been convicted of crimes and who have served their sentences cannot be locked up on the premise that they might re-offend. Commissioner Rahn said he was not suggesting that, only that the public has the right to safety. Ms. Wilson concurred but reiterated that the public could in fact be placed at risk should all aspects of the security plan be required to be included in the public record.
Commissioner Newton agreed that the regulatory provisions of any security plan should be made known to the public. Those provisions state that there will be surveillance, that ankle bracelets will be used, that there will be a specific ratio of residents to staff, and that there are specific noticing requirements in the event something goes wrong. The public does not, however, need to know the specific operational details of how the security plans will be carried out.
Chair Pierce suggested that the intent of the proposed provision regarding security plans was to outline the regulatory requirements but not the operational requirements.
Reviewing the specific comments made by Ms. Wilson, Mr. Greenberg agreed that the purpose and intent statement for the industrial zone should be changed to allow for the siting of SCTFs. He said he would need to get the City Attorney’s opinion as to whether limiting the number of SCTF beds to three is contrary to the statute. He said the opinion of staff with regard to zoning restrictions is that the provisions do not severely limit the availability of land for SCTFs, especially if and when SPA-4 is rezoned.
Continuing, Mr. Greenberg agreed that a community residential facility should not be considered a risk potential facility and agreed that that reference should be removed from the ordinance. He reiterated that the ordinance should simply reference the state law rather than list risk potential activities.
Mr. Greenberg said he would need to check with the City Attorney’s office to see how they determined that there should be one mile of separation between existing SCTFs, work release, pre-release or similar facilities, and what they meant by “similar facilities” with regard to equitable distribution. He said the proposed mitigation measures regarding buffering could be left as written, thus leaving to the public hearing process to determine what the buffering should be on a case-by-case basis. Another approach would be to require the most common landscape requirements for uses in the industrial zone, which is 25 feet of landscaping.
Mr. Greenberg agreed that the application materials should include a general overview of the security program but not specific details.
Commissioner Newton asked if the security procedures for SCTFs include a specific site distance outside of the fence required to maintain security. Ms. Wilson said it will take a sizeable parcel of land to house a facility, something on the order of one-half acre per person. She said a clear perimeter, which is watched over by microwave detectors and cameras, is necessary.
Motion to close the public hearing was made by Commissioner Robison and was seconded by Commissioner Boscarine; the motion carried unanimously.
Commissioner Conlin asked how staff arrived at the recommendation to allow SCTFs to have no more than three beds. Mr. Greenberg said that came from the City Attorney’s model ordinance. Under state law, the minimum number of beds in a SCTF is three, and that number was recommended as the maximum for Burien. Commissioner Conlin said it might be wiser to permit the maximum number of beds because that would require a much larger parcel of land, something that would be very difficult to find in Burien. Mr. Greenberg noted that if the ordinance were to permit SCTFs at the maximum size, the state could still elect to construct only a three-bed facility.
Answering a question asked by Commissioner Weaver, Mr. Greenberg allowed that the state could elect under the proposal to construct two SCTFs of three beds each in Burien. Because of the separation requirement, there could not be two facilities in the southern industrial zone; one would have to be in the northern zone and the other in the southern zone.
Chair Pierce said he could support the proposed ordinance.
Commissioner Simpson-Clark said he had no concerns over the size of SCTFs; if there is going to be one at all it might as well be of reasonable size. He said he would be concerned about the possibility of having related uses housed in the same facility. The ordinance should clarify that SCTFs will be used exclusively for the housing and treatment of civilly committed offenders.
Commissioner Conlin moved to accept the proposed ordinance with the minor amendments discussed.
Commissioner Robison said he would prefer to see a draft of the code with the changes made before voting on it.
Mr. Greenberg said he would make the revisions and email it to all Commissioners for review, and suggested that if there are no major objections he would then forward it on to the City Council. The Commissioners concurred and agreed to vote on the ordinance at the next Commission meeting.
Commissioner Conlin withdrew his motion.
Commissioner Newton moved to recommend approval of the draft ordinance as amended subject to e-mail review of the final version. Second was by Commissioner Simpson-Clark and the motion carried unanimously.
**BREAK**
B. Public Hearing and recommendation to City Council on proposed changes to BMC 19.17.040, Cargo Container Regulations
Chair Pierce noted for the record that the Commission reviewed the issue of regulating cargo containers and on July 25, 2000, held a public hearing and forwarded a recommendation on to the City Council to allow the use of cargo containers in the city with certain restrictions. The City Council reviewed the recommendation of the Commission and ultimately passed a resolution prohibiting the use of cargo containers in all but the industrial zones of the city. For a number of reasons, the Council directed the Commission to review the matter once again.
Chair Pierce declared the public hearing open.
Mr. Marty Reichlin, 14625 Ambaum Boulevard SW, indicated that he had already had his say.
Mr. Ryan Warnes, general manager of BBC Dodge, said cargo containers offer businesses a low-cost and secure storage option. He said BBC Dodge has two storage containers on site for storing parts and the like. He urged the Commission to adopt the proposed ordinance.
Mr. Jim Clingan, 14682 22nd Avenue SW, said he does not own or sell cargo containers and could not care less about them. He said he cares deeply, however, for the business community in Burien and found the current cargo container law too obtrusive. The issue first came to light when the Highline Times carried an article about the cargo containers at Dooley’s General Store, a business that has since closed. The containers used by that business were in fact located in a manner that made them hard to find and they should not have caused any concern for anyone. At the time there were a number of other cargo containers in use in the city, but the law was not being applied equally in those cases. The presence of cargo containers in the city was documented, the information was presented to the City Council, and the City Council concluded that the issue should be reconsidered. The Commission first became involved in July 2000, and the City Council passed its resolution in November 2000. The one and only enforcement action took place in mid-2001; there have been no other enforcement actions taken. In 1999 there were three complaints filed with the city by one individual about cargo containers, and by January 2000 the issues had all been resolved under the existing law. The ordinance passed by the Council in 2000 banned the use of cargo containers in all but industrial zones, except it allowed schools, hospitals and government agencies to use them, even in residential areas, a clear double standard. There are containers in use in residential areas; most are fairly well hidden and they are used to store items such as expensive tools and antique cars. Individuals should be trusted to make good decisions that will not offend their neighbors.
Ms. Ruth Carpenter, 15631 Maplewild Avenue SW, said she serves on the Burien Arts Commission and is as concerned about the looks of Burien as any other resident. She stressed the need of taking care of the business community and their needs. Local business owners should be trusted to make use of cargo containers in a manner which is unobtrusive and which will not offend anyone.
For the record, David Johanson, senior planner, said staff had received a fax letter from the Big Brothers and Big Sisters pertaining to the use of cargo containers and had made it available to the commissioners.
Chair Pierce declared the public hearing closed.
Commissioner White stressed the need to include in the ordinance a provision to allow cargo containers for temporary usage.
Commissioner Rahn noted that the proposal by staff and the proposal by the Merchants of Burien were actually quite close. He indicated his support for the position taken by the Merchants of Burien.
Commissioner Conlin concurred with Commissioner Rahn. He said cargo containers should be allowed in all areas of the city with proper screening.
Commissioner Boscarine suggested the city should not seek to regulate cargo containers at all. If there have only been three complaints, all of which were resolved, there should be no need for additional law.
Commissioner Weaver also favored the position of the Merchants of Burien. She added that the recommendation made by the Commission in 2000 should not be overlooked.
Commissioner Simpson-Clark held that the proposal reasonably addressed the needs of the businesses. He supported the notion that some areas of the city are appropriate for some uses but not others. One of the purposes of zoning is to segregate different uses. The proposal represents a reasonable balance.
Commissioner Robison said he could see no reason for the City to regulate the use of cargo containers at all. He said the Merchants of Burien proposal would not permit containers at all in residential areas; the proposal of staff is better by far, but is still far too complicated. If regulated at all in residential areas, one approach would be to require a permit if a cargo container is used for more than 60 days. He said he would favor either no regulation of cargo containers at all, or returning to the proposal sent to the Council in 2000 by the Commission.
Chair Pierce said the recommendation sent by the Commission to the Council in 2000 was solid and workable. Cargo containers by their very nature are not permanent structures and can be used as a viable alternative to simply permitting another building to be constructed. Surface water management is an acute issue facing Burien. The City has an opportunity to make for a win-win situation by providing residents the ability to make the most of the resources available to them, and to contribute positively to the community by not constructing more impervious surfaces in the form of buildings. He commented that a cargo container on a lot of 7,200 square feet or less would tend to look out of place.
Commissioner Robison disagreed. He reiterated his desire to see a requirement for a building permit for any cargo container in use for more than 60 days. All provisions that apply to buildings should then apply to the container. He commented that in the time that has elapsed since the Council passed the current ordinance there has been very little will to enforce the regulations. Too often regulations of the type aimed at the use of cargo containers have a tendency to become a tool for one person to use to batter someone they do not like.
Commissioner Rahn agreed that some things belong in industrial areas and not in residential areas. He said he was fully supportive of the need to allow cargo containers in business areas but was opposed to allowing them in residential zones. Cargo containers can be safety hazards for anyone who might get locked in, especially children living in residential areas.
Commissioner Robison said he has seen no evidence of cargo containers posing any kind of safety hazard at all.
Commissioner Rahn said the Commission should concern itself with planning for aesthetics. Cargo containers should not be allowed in residential areas because they do not fit with the aesthetics of residential areas.
Commissioner Conlin suggested that if aesthetics is the issue, cargo containers should not be permitted to be used by hospitals, schools and government entities. Residents should have the same rights the government reserves for itself.
Chair Pierce commented that what is good for the citizens also should be good for the City and vice versa. He agreed that if cargo containers are to be used by hospitals, schools and government entities, they should be aesthetically fit and presentable.
Mr. Clingan reminded the Commissioners that the three complaints that triggered the discussion initially were all resolved under the law that was in effect prior to passage of the current ordinance by the Council.
Chair Pierce said staff has done a good job of coming up with landscaping descriptions and requirements that will make the placement of cargo containers aesthetically acceptable in most commercial areas. The same rules would make the containers almost invisible in residential areas. He said he would support a system that would allow cargo containers to be sited without concrete pads or foundations for a three-year period at a cost commensurate with the costs associated with inspection to make sure all setbacks and the like have been met.
Commissioner Robison suggested that approach would be a nightmare for staff.
Motion to recommend to the City Council that there be no regulation of cargo containers at all in the city was made by Commissioner Robison. Second was by Commissioner Boscarine.
Commissioner Conlin asked Commissioner Robison if he felt cargo containers should be allowed to be trucked into any zone in the city and placed anywhere on a lot. Commissioner Robison said the testimony has been that the existing city regulations are capable of taking care of situations where someone creates a nuisance. There is no reason to add a new layer of regulation.
The motion carried 5-3 with Commissioners White, Boscarine, Conlin, Robison and Newton voting in favor, and Commissioners Rahn, Weaver and Simpson-Clark voting against. Chair Pierce abstained from voting.
Adjournment
Motion to adjourn was made by Commissioner Robison and was seconded by Commissioner Newton. Chair Pierce adjourned the meeting at 8:32 p.m.
Approved
/s/ Robert Pierce, chair
Planning Commission
/s/ Scott Greenberg, director
Community Development Department