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HomeMy WebLinkAboutMinutes - Planning and Zoning Commission - 2/7/2006 MINUTES PLANNING COMMISSION REGULAR SESSION February 7, 2006 TOWN COUNCIL CHAMBERS 11000 NORTH LA CANADA DRIVE REGULAR SESSION AT 6:03 P.M. 1. CALL TO ORDER 2. ROLL CALL PRESENT: Chair John Anning Vice Chair Pete Bistany Commissioner Bill Adler Commissioner Doug McKee Commissioner Honey Pivirotto EXCUSED: Commissioner Don Manross Commissioner Teree Bergman Others Present: K.C. Carter, Council Member Joe Andrews, Civil Attorney Sarah More, AICP, Planning and Zoning Administrator Pamela Holt, Planner 3. CALL TO THE AUDIENCE opened and closed at 6:05 p.m. There were no speakers. 4. MINUTES MOTION: Commissioner Adler MOVED to approve the Planning and Zoning Commission January 3, 2006, regular meeting minutes as written. Commissioner Pivirotto seconded the motion. Motion carried 5 yes, 0 no. 5. PUBLIC HEARING, OV7-05-06, AMENDING THE ORO VALLEY ZONING CODE REVISED CHAPTER 23, ZONING DISTRICTS; CHAPTER 25, USE REGULATIONS; AND CHAPTER 31, DEFINITIONS, TO REGULATE SEXUALLY ORIENTED BUSINESSES Planning and Zoning Administrator Sarah More introduced Planner Pamela Holt, who gave the Staff Report. Ms. Holt gave a brief history of the problems that had arisen in Pima County due to not having regulations or development standards that would separate potentially deleterious businesses with undesirable "secondary effects" from adjacent incompatible uses. Oro Valley decided to take a look at their regulations. A study committee comprising February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 2 Planning and Zoning, Attorney, and Oro Valley Police Department put together the proposed amendment before the Commission this evening. The Town Attorney's representative said that excluding the use of adult-use oriented businesses in Town could have serious legal ramifications. The Town Attorney and Town Clerk put together a comprehensive list of licensing requirements. Ms. Holt discussed the changes that would be made in Sections 23.3, 25.1, 27.6 and 31. In the Definition section, any reference to sexually oriented business, as a part of other use definitions, was removed. Sexually oriented business was defined and a reference made to the Town Code. The Town Code has an exhaustive list of precise definitions of what constitutes a sexually oriented business. Commissioner Adler asked that rather than having a specification that such a use as this will be limited to one pad per 17 acres, why not one pad per C-2 district? Ms. Holt responded that the Study Group focused on one pad per 17 acres rather than the C-2 zone, because when looking at the shopping centers that are in existence and zoned C-2, the smallest one was 17 acres. By limiting the size to the 17 acres it would mean it couldn't go smaller than 17 acres. This provides a standard that can be applied to any shopping center zoned C-2. Ms. More responded to Commissioner McKee's question that Clarion Associates were not involved in preparing the ordinance for Sexually Oriented Businesses (SOB). Ms. Holt explained to Commissioner McKee that in Table 23-1, "excluding adult bookstore, etc.", was deleted because Staff wanted to remove any reference to any type of SOB as a part of standard commercial uses definitions. The comprehensive category of SOB would lump all the excluded categories together. To determine what a SOB is, there are two options: the Zoning Code Definitions Section lists what constitutes a SOB, and there is a reference to the Town Code. Commissioner McKee asked if in case of a conflict between the Planning and Zoning Code and the licensing code, which would prevail. Attorney Andrews said one regulates licensing and the other regulates location. He didn't think there was a conflict. If there was a conflict he would place it before the Planning and Zoning Administrator and find out what the interpretation was and present that to the applicant and go from there. Attorney Andrews told Commissioner McKee that the inconsistency of the hours of operation is something that can be taken care of. Commissioner McKee said in the Zoning Code, page 265, design requirement, a reference needs to be added for the definitions to make it easier to read. And, on page 266, 2a "No use shall be located less than 1,500 feet from any existing sexually- oriented use" is awkward writing and could be cleaned up. February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 3 Ms. More said it could be made into two sentences to make it clearer. Commissioner McKee asked if on page 266, 2d "Parking lots for this use shall be accessible through one point of ingress and egress," was practical, and how would it be enforced? He didn't think it would work for a strip mall and should be reworded. Ms. Holt responded that the Oro Valley Police Department focused on this specific issue, of one point of ingress and egress to the site. If it is a site that is in the process of the Development Plan, one way to do that is to provide concrete barriers and isolate the parking lot. If it is a site like the Oro Valley Market Plan where the Development Plan has already been in process, one idea the Police had was to put bollards up to delineate the area to show that it is parking specifically for that use. Ms. Holt replied to Commissioner McKee's question regarding the purpose of planting cactus under the trees, that the Study Group thought there should be thorny materials such as cactus around the perimeter of the building to keep individuals from going into that area to do illicit activities. Furthermore, to provide surveillance to the site, the height of the plants was limited to allow viewing into the site. Commissioner McKee said on page 338 it asks for a wrought iron fence around an isolated pad. This could be a problem in such areas as the Vestar site. There is nothing about the parking being inside the fence. Should it be extended to include parking lots on an isolated pad? Ms. Holt said that the fence does not have to encompass the parking lot area. The intent is that if it is a stand alone pad it would require the perimeter fence around the perimeter of the parcel, around the parking, etc. It does not specifically state that it should be around the parking. In areas such as the Oro Valley Market Place, the proximity of other businesses would help to encourage the SOB to behave better. In an area such as this, the SOB would be less inclined to engage in secondary effects. A fence around a stand alone pad, including the parking lot, does make sense. Ms. Holt told Commissioner McKee that there was no reference to 10% or 15% in the definitions. The definition section has had references to any SOB removed and one specific definition included, with a reference to the Town Code licensing section. Attorney Andrews said the reason is essentially if, for example, Circle K has certain magazines some people buy and some don't, we don't want Circle K to have to come in for a SOB license because those magazines are sold from their store. That is why that limitation is there. Ms. More said the principal business purpose means anything greater that 10% of the floor area and greater than 5% of revenues attributed to SOB. Attorney Andrews told Vice Chair Bistany that we have to permit this use. This was based on the constitution that people have certain rights. In his opinion, this is the most regulation we can put on the Town, coupled with the licensing requirements. February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 4 Commissioner Pivirotto questioned the Town Code, Section 8-4-7 Inspection, for a point of clarification; it indicates the applicant or licensee shall permit representatives of various departments to inspect the premises. Is this Pima County or a contemplated Town Health Department? Attorney Andrews said it is any health department. Oro Valley does not have a health department. Therefore it means the County Health Department. Commissioner Pivirotto said the Conditional Use Permit (CUP) looks as though there is the CUP plus the license. Does the license expire every year unless you apply 30 days before termination? Ms. Holt replied that the licenses do expire every year and has to be reapplied for. Attorney Andrews said essentially the CUP would extend but they would have to renew the license. If they lost their license, they would loose their use. Ms. More said a license renewal, if the conditions are the same, is an automatic process. Unless something triggers it otherwise, it would keep on being renewed. Attorney Andrews added that if one of the SOB licensees had new information turn up having a sexual offense in their background, they would loose their license. PUBLIC HEARING opened at 6:45 p.m Lois Nagy, 245 W. Greenock Drive, in the Oro Valley Estates area, has been a resident there since 1970. Some of her questions had already been answered. She was delighted that not having a red light district or "shanty town" areas was taken into consideration. She would like the 17 acre situation extended to 20 or 25 acres. The idea of one business per shopping complex is a sound idea. She was concerned that if a business like this goes into a sizable shopping center that other merchants might shy away and there would be vacant space close to the establishment that would otherwise be taken by merchants that we want in Town. Another concern was security, making sure that some of the high schoolers and other people who are curious about this kind of establishment don't get in there. It is important in the licensing process that the proprietor and people who work there will be screened for criminal records, etc. She thinks we are going about this in the right way. She is pro economic development and would like to see this done in a good way for our Town. PUBLIC HEARING closed at 6:50 p.m. Chair Anning commented that based on his experience and watching towns grapple with this very issue, he wanted to commend the Staff for walking a very thin line on this piece of work. He thought Staff has done a good job and it is worth passing on. Commissioner Adler feels strongly that the one SOB per 17 acre restriction on a use of this kind is arbitrary and needs to be extended to the entire C-2 center. Regarding the 1,500 feet, could we specify the kinds of family oriented retailers or uses that a use of February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 5 this kind should not be adjacent to? He feels the 1,500 feet is an arbitrary number. In a shopping center, there are family oriented businesses. He wants to see examples in the Code of uses a sexually explicit retail store should not be located next to. It should be very clear that if the SOB use is allowed in Town, we are going to be protective of those retailers that could be offended or whose business might be affected by having a business like that adjacent to theirs. He understands there can't be displays in the windows, but are the windows to be tinted or mirrored so no visual access is available? Ms. Holt addressed the first issue of why the 1,500 feet. The Study Group looked at requirements for other cities within the State, of which most used a 500 foot requirement. We felt in Oro Valley we wanted a more restrictive 1,500 feet. Family oriented business was not defined because in the Study Group we started listing what is a family oriented business and reached a point where it became too restrictive. This will be left up to the Planning and Zoning Administrator's interpretation. Commissioner Adler did not think damage would be done by giving examples without attempting to be comprehensive. Would a comedy club be considered an adult theatre if it attracted comedians whose format is sexually based? Attorney Andrews said no, we would not go after comedians who made reference to anatomical parts, because our Code doesn't necessarily regulate speech, it is more video and visual. He understood Mr. Adler's concern regarding defining family oriented businesses. It would be difficult to make a list and not make it too restrictive. He would rather the Planning and Zoning Administrator make that interpretation. Commissioner Adler felt the ordinance needs to give examples that are very clear, so if the Administrator is making an interpretation it is based upon the language in the Code which sets forth the parameters by which the interpretations are made. Whereas it may be a difficult task, he is prepared to do it if others are not. It should be as restrictive as possible, as long as it is defensible. Ms. Holt said regarding the window treatment, page 265 under design requirements it says all entrances and windows shall be designed in such a manner as to not allow persons outside to observe into the building. Choice of opaque, black out, etc. is not determined. Further, it states that no display windows are permitted. Chair Anning asked where the reference to family oriented business was in the Code. Ms. Holt said the definition of family oriented business is not in the Zoning Code. The wordage is in the Town Code, Section 8.4. Chair Anning said there is no location standard set forth that says an SOB must be kept 1,500 feet from a family oriented business. Ms. Holt said the proposed amendment does not specifically say it must be 1,500 feet away from a family oriented business. February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 6 Chair Anning said the issue of family oriented business comes up in the Town Code, section 8.4, which is not the Zoning Code. The applicant for a license is required to provide information for the family oriented business. At no point in this amendment does it say it must maintain any minimum distance between a proposed SOB and one of the family oriented businesses. To do that would get way over the top in terms of constitutional issues. It would be totally exclusionary. Commissioner Adler said he is willing to take the risk in terms of somebody taking us to task for constitutional issues. It needs to be clear that there needs to be separation between this kind of use and other kinds of uses. We have the right, for public health, safety and welfare, to define what we are trying to do here. He thinks regulating the locations of SOB uses is well within our authority. Commissioner McKee said we are coming close to this in the location requirement section where it says an SOB can't be within 1,500 feet of a park, recreation area, school or day care facility. The school or day care facility may well be a business. Ms. Holt said the reason for including reference to established religious institutions, parks and schools was based on the legal analysis that showed previous court cases sited with the towns and cities that wanted to protect these specific uses. Attorney Andrews understood where Mr. Adler was coming from, saying we should not place SOBs adjacent to certain uses. He didn't know what those uses would be and he thought it would make our Code extremely exclusionary, to the point of being a constitutional issue. Therefore, he is comfortable leaving that subject to a Conditional Use Permit review. Commissioner McKee said if we are going to err, it is a question of which side we are going to err on. If we make the Code too restrictive and get taken to court later on, we could always back off. If the Code is left too loose now, it can never be tighten up. Vice Chair Bistany understood where Mr. Adler is coming from, but in some of the C-2 shopping areas, you would be hard pressed to keep 1,500 feet away from any family oriented business. Ms. Holt said according to the court cases that have come down, we are allowed to regulate zoning development standards where certain uses are allowed to be located. The owners of the properties would be the ones leasing the properties. We only need to say where there are areas to conceivably locate. Ms. More said the important point we are trying to make as professionals is that we cannot advise you to pass on an ordinance to the Town Council that is so restrictive that we believe it is unconstitutional. We are not going to tell you any motion you pass can't be sent to them, but our job is to advise you and the Town Council. In most court cases and in all the analysis she has done over the years, care had been taken to make sure there is a clearly defined amount of land area within a city or town that is available in the theoretical sense when it comes to zoning, not in market sense. There has to be some land available. If you change the amount of land area and get too restrictive it would February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 7 have to go back for another analysis with maps to make sure that we had enough land area available for the use. Attorney Andrews concurred completely with what the Zoning Administrator said. MOTION: Vice Chair Bistany MOVED to forward OV7-05-06, proposed amendments to the Oro Valley Zoning Code Revised, Chapter 23, Zoning Districts; Chapter 25, Use Regulations; Chapter 27, General Development Standards; and Chapter 31, Definitions; to the Town Council recommending approval. Chair Anning seconded the motion. Commissioner Adler asked if he could make a friendly amendment. AMENDMENT TO THE MOTION: Commissioner Adler MOVED that the maker of the motion consider changing the zoning condition under Section W.2.c, where is says "not exceed 1 pad per 17 acres of shopping center" to simply say "not to exceed 1 pad per shopping center in the C2 district." Vice Chair Bistany maker of the motion, accepted the friendly amendment. Chair Anning, second of the motion, did not accept the friendly amendment because he felt we should not be that restrictive and that the 1,500 feet radius provides a very good dispersal with the 17 acres or any size shopping center. AMENDMENT TO THE MOTION FAILED. Chair Anning called for a vote on the original motion without the amendment. Motion carried 4 yes, 1 no. Commissioner Adler voting no. PLANNING UPDATE • The Town Council approved the R-4R 34 foot height limit change. • The Town Council approved the telecommunication tower Conditional Use Permit. There was an amendment to the conditions that required the tower owners to come back for a new CUP only if they were planning a change that would increase the impact on the Town. • The work program for Planning and Zoning was approved in December. The department has been and still is short staffed. There are some very important things on the list such as Environmental Sensitive Land. We would look for a new staff member and possibly consultants to help with that as well as community input. The Commission will be kept informed and recommendations will be welcome. February 7, 2006 APPROVED MINUTES, PLANNING AND ZONING COMMISSION 8 Chair Anning announced that this will be his final meeting as a member of the Planning and Zoning Commission. He submitted a letter of resignation. He expressed his appreciation in working with the other members of the Commission. ADJOURN REGULAR SESSION Meeting adjourned at 7:20 p.m. Prepared by: Diane Chapman Office Specialist