Loading...
HomeMy WebLinkAboutCity Council Committees - Planning and Economic Development Committee - 08/05/1991 _ v . 0 s KENT BOARD OF ADJUSTMENT MINUTES - August 5, 1991 The scheduled meeting of the Kent Board of Adjustment was called to order by Chair Cosby on the evening of Monday, August 5, 1991, at 7:00 p.m. in the Kent City Hall, City Council Chambers. BOARD OF ADJUSTMENT MEMBERS: Jack Cosby, Chair Walter Flue Raul Ramos Ron Banister, excused CITY STAFF MEMBERS: Carol Proud, Senior Planner Charlene Anderson, Planner Lois Ricketts, Recording Secretary Carol Morris, Assistant City Attorney APPROVAL OF THE JULY 8. 1991 BOARD OF ADJUSTMENT MINUTES Mr. Ramos MOVED that the minutes of the July 8, 1991 meeting be approved as printed. Mr. Flue SECONDED the motion. Motion carried. HEATH TECNA AEROSPACE CO.--HAZARDOUS MATERIALS (CA) Mr. Flue MOVED that the Heath Tecna request #V-91-3 be continued to the next regularly scheduled meeting, September 9, 1991. Mr. Ramos SECONDED the motion. Motion carried. Chair Cosby administered the oath to all who intended to speak. KLEENCO PRODUCTS, INC. APPEAL OF ADMINISTRATIVE INTERPRETATION #AD-91-1 (CA) Charlene Anderson presented the Kleenco request to allow the applicant, which manufacturers cleaning specialties, to operate in an M1, Industrial Park, zoning district. After reviewing an application for a business license submitted by Kleenco in March, the City determined that this use was not allowed to operate from 6876 South 220th Street. The Planning Director determined in May that the manufacture of cleaning specialties was not allowed to operate within the M1 zoning district. This use is specifically listed as permitted within the M3 zoning district. Kleenco's appeal of this decision states that their operations are identical for zoning purposes to the manufacturing, processin4, blending and packaging of drugs, toiletries and cosmetics which are permitted in H } Kent Board of Adjustment Minutes August 5, 1991 the M1 district. The applicant states that their operations are of a non-nuisance type using modern blending operations involving intermediate chemicals only, as distinguished from those operations using primary chemicals, which create hazardous waste streams or operations prone to nuisance. Ms. Anderson explained that there are three industrial zoning districts in Kent. The M1 zoning district provides an environment exclusively for and conducive to developments of a broad range of industrial activities including modern, large scale administrative facilities, research institutions, and special manufacturing organizations, all of the non-nuisance type, and certain limited commercial land uses that provide necessary personal and business services for the general industrial area. The M2 zoning district permits retail and service uses limited to twenty-five percent of the gross floor area of any single or multibuilding development. The standards are not as restricted as in the M1 zone. The M3 zoning district allows a broader range of industrial uses and more intense industrial uses. Kent Zoning Code Section 15.04.170 states "The purpose of this district is to provide areas suitable for the broadest range of industrial activities, and to specify those industrial activities having unusual or potentially deleterious operational characteristics, where special attention must be paid to location and site development. . . 11 It does not allow any retail or service uses. One principally permitted use in the M1 district is manufacturing, processing, blending and packaging of drugs, pharmaceutical, toiletries and cosmetics, food and kindred products, dairy products and by-products. The M3 zoning district, the broadest and most intense industrial district, allows manufacturing, processing, blending and packaging of products such as drugs, pharmaceutical, toiletries and cosmetics which are permitted in the M1, but it also increases the uses to allow soaps, detergents and other basic cleaning and cleansing preparations, plastics, synthetic resins, nonmetallic mineral products such as abrasives, asbestos, chalk, pumice and putty. It broadens the range of uses to include more intense chemical preparations, whereas drugs, pharmaceutical, toiletries and cosmetics can be either ingested or placed upon the skin of humans. Soaps, detergents and other basic cleaning and cleansing preparations move into a more nuisance or hazard-oriented products. Robert ,Silbaugh in his May 13, 1991 letter states that Kleenco blends a wide range of both liquid and powdered formulations in such commonly used products as glass cleaner, all purpose cleaners, carpet cleaning and spotting products, products designed for the maintenance of resilient and wood floors, disinfectants, bowl cleaners, laundry detergents, dishwashing compounds and personal care products such as hair shampoos and hand soaps. The Kent Zoning Codeidentifies permitted uses by general types or categories and does not provide 2 ~ 0 Kent Board of Adjustment Minutes August 5, 1991 exemptions to individual businesses within the categories which might have state of the art processes which account for the "safer" operation than a competitive business. The City does not have adequate staffing nor is it economically feasible or practical for enforcement purposes to make use exceptions -within general categories for individual businesses who conduct their operations differently from other businesses within the same general category. Neither does the Kent Zoning Code distinguish between businesses who manufacture soaps, detergents, and other basic cleaning and - cleansing preparations and businesses who blend soaps, detergents and other basic cleaning and cleansing preparations. The Kent Planning Department recommends denial of this Appeal of Administrative Interpretation because manufacturing of cleaning specialties is not a permitted use within the M1, Industrial Park zoning district, and is specifically permitted. within the M3 district. Gregory S. McElroy, Attorney, Schwabe, Williamson and Wyatt, Pacific First Center, Suite 2600, Seattle, Washington, stated there is no potential for nuisance or any potential for hazard regarding the operation of the facility that would distinguish this facility from any of its neighbors. He felt it was a low, intense industrial use, less intense than many uses that are allowed in the Ml zone. There are no hazardous chemicals on site above or close to the limits allowed. He felt it was similar to the businesses that are allowed under the code, and that the flexibility that the code stands for should allow this business to locate in the M1 district. He pointed out that there used to be "soapers" who created a nuisance everywhere they went. The entire process of blending products has no probability or possibility of any kind of a hazardous waste output, nor any kind of an offsite impact nor any visual impact and would not be a hazard to employees. He felt the Board should look at what occurs on the site, not at the end products of the business. He felt this district is intended to provide areas for those industrial activities like Kleenco that desire to conduct business in an atmosphere of prestige location and which environmental amenities are protected through a high- level of development standards. Kleenco is engagebd Ari specialized manufacturing of intermediate products, which is -in provision Al. Kleenco is involved in the manufacture of an intediate product as opposed to primary manufacturing. He pointed out that the Planning Department feels that if a particular operation is not included in the list, then it is excluded. He felt that was an unfair way to read the code. He quoted from the 'code: "The following is illustrative of the types of permitted uses and is not intended to be exclusive." It does include tha ;.manuf acturing, processing and blending of toiletries and cosmetids. The code allows other similar uses consistent with the purpose and intent of 3 Kent Board of Adjustment Minutes August 5, 1991 the M1 district and not of a type to adversely affect the use of adjoining properties. He felt there was no evidence that there was anything inconsistent about the operations on this site with the other operations in the M1 district. He felt these were identical to the ones that are allowed and this use is less hazardous than some allowed in this district. He emphasized that the M1 district does not exclude uses just because they are not specifically listed. Kleenco is asking the Board to find this use compatible with the principally permitted uses and not of a type which would - adversely affect adjoining properties. He felt the City was looking at the use and saying that cleaning products are categorically out of this zone. Kent Zoning Code states that if a use is consistent with similar uses and not of a type to adversely affect use of adjoining properties, it can be allowed. He added that film processing has a hazardous waste stream associated with it. Those working with asbestos can have facilities that store up to 20, 000 pounds of hazardous materials. Kleenco stores - approximately 3, 000 pounds to be used daily in manufacturing. Mr. Robert J. Silbaugh, 4322 158th Place SE, Bellevue, presented Exhibits A, B, C, and D and stated that Kleenco was started as a family business in 1969 and still is a family business. The products are sold throughout the U. S. in small vacuum cleaner and sewing machine stores. He stated that these products are used daily by everyone in the audience in their homes. The same type of products are sold in grocery stores and hardware stores. Swimming pool supply stores carry products more hazardous than the Kleenco products. He is environmentally concerned about the products that Kleenco makes and how these affect the community and the earth. The company originally started in 1969 as a private label company. Other companies made the product and they put their name on it and sold primarily in Western Washington. In 1979 his son started research and development, and they feel they now have a better quality product. In 1980 they began manufacturing in Bellevue at 13228 Bel-Red Road, a retail-oriented area, and remained there until 1985. They were located in ,Woodinville from 1984 to 1990. On September 24, 1990 Kleenco applied for a business license in Kent. On March 15, 1991 the City of Kent responded to this request. He felt there was no difference in what they do than what is done by a cosmetic manufacturer. Leon Hartvickson, 15115 SW Sequoia Parkway, Portland, Oregon, 97224, Pacific Realty Associates, DBA PacTrust, stated that they investigate their tenants. When they looked at Kleenco, they found that they were cleaner than many other tenants in the area and had no odors or unsightly aspects to- their business. - He felt they are compatible with the other tenants in the park. He knows of no 4 1 0 Kent Board of Adjustment Minutes August 5, 1991 undesirable aspects to their occupancy. He did not feel Kleenco should be precluded because of a definitional issue. Gregory McElroy presented Exhibit E, an affidavit of Mr. Dirk Verhagen who previously worked for Van Waters and Rogers, now the nations largest distributor of chemical products. }; Mr. Verhagen felt there is no distinction that could be ' made by taking sulfonates and blending them to make cleaning products, as opposed to taking the same sulfonate and diluting it more by mixing other - intermediate products and using these to make cosmetics of toiletries. The affidavit states that there is no nuisance associated with this business. One way to tell is ,by the presence of materials on site and by the size of the operation. The affidavit points out that there is no business ' engaged in the manufacturing of soap in the 1990's that doesn't produce around 20 million pounds per year. This would be a huge industrial facility with all the tankage that is associated with it, such as gas stacks and odor. The facility would have regulated waste streams. It would have large quantities of raw ingredients above the threshold of planning limits, which are 20,000 pounds in the City of Kent. He compared Kleenco's operation to the manufacture of soap as a toy car compared to a tank. The M1 zone does allow Kleenco to operate if it can be shown it is a business of a non-nuisance nature, that it is like businesses that are already located there, and if it falls under subdivision 16, and unless there are findings of fact to the contrary. He refuted the statement that unless cleaning products are allowed in an M1 zone specifically, they are excluded. He felt the zoning code does not state that. He felt the code said that any business which meets the purpose of the M1 zone, desires a prestige location, does not operate adversely to its neighbors, and is like the businesses that are already in the ,area should be included in the zone. He emphasized that the list that is provided in the code is not exclusive. Carol Morris, Assistant City Attorney for City of, Rant representing the Planning Department, disagreed with Mr. M,cElrby�s assertion that even though this use is not specifically listed in the M1 zone, it is not specifically excluded. She pointed out that Section 15.03.040 states "Except as hereinafter otlurwise provided, no building or part thereof or other structure mall be. . .used, designated or intended to be used for any purpose# or, in any manner other than is included among the uses hereinafter listed as permitted in the district in which such building, land, or premises are located." She stated that the list is meant to, be exclusive. Kleenco in 1989/1990 desired to locate its operations in Kent. The applicant purchased a lease in a location whore the use is not allowed. He did not check with the Planning Department to find out if this use was allowed first. Application was made for a business 5 Kent Board of Adjustment Minutes August 5, 1991 license. The City notified them that the business was not allowed in the M1 zone, consequently the business license could not be issued. They were told that they would not be allowed to continue their operations at their present location. The applicant asked for an administrative interpretation. The Planning Director issued his interpretation that this operation was not allowed in the M1 zone, but this use was specifically ' listed in the M3 zone. She felt the appeal was not filed in a timely manner. She asserted that the Board of Adjustment did not have jurisdiction to hear this - appeal, and that it should be denied on that basis. It is Kent's position that if something is not specifically listed in the zoning code, it is disallowed. Mr. Harris decision was based on the interpretation that the use was not specifically listed in the zoning code. She felt no interpretation was necessary to judge Kleenco's use is permitted in the M3 and not permitted in M1 zone. It is acknowledged by the City that Kleenco has the right to use its property in the terms of the applicable zoning ordinance. The applicable zoning ordinance does not allow this use. She felt that this Board and Mr. Harris should not be engaged in a discussion of whether or not this particular section of the code was a wise adoption or something that should have been done differently. The Planning staff and the Board should only be concerned with questions of compliance. Ms. Morris felt that in this case the courts said that the act of administering a zoning ordinance does not go back to the question of policy and discretion which were settled at the time of the adoption of the ordinance. Administrative authorities are properly concerned with questions of compliance with the ordinance, not with its wisdom. To subject individuals to questions of policy and administrative matters would be unconstitutional. She felt Kleenco was asking the Board to t° engage in discussion of whether or not the City Council should have adopted such a provision in the zoning code and whether it should be amended to include their particular use. She felt this was not something that the Board was intended to decide. This should be brought up in a separate procedure. Regarding the power of the Planning Director she referred to Section 15.09.060 "The purpose of such administrative interpretations is to provide a degree of flexibility in the administration of this code while following the intent of the City Council. " She felt that if the City Council intended the manufacture and blending of soaps to be included in the M1 zoning district, this use would have been listed in M1 rather than in the M3 zone. The ordinance requires a ten-day appeal period, and their appeal was not filed within the ten-day period. She concluded by stating that although this situation does appear to cause a hardship on Kleenco, this has been self created. Even if the variance criteria were applied, the variance would fail. 6 Kent Board of Adjustment Minutes August 5, 1991 " Mr. McElroy pointed out that Chris Corr had worked with the landlord and made inquiries of four city departments. He had not been told to make a separate inquiry of the Planning Department. The applicant claimed to have made the best efforts available to find out the necessary information. The businiis license was submitted on September 24, 1990. The applicant vis told at the time the business license was submitted that a de iSion would be in three weeks, and if there were any problems, the applicant would be contacted. A move-in date was set for October 15. The move - actually took place two weeks after this date. ' 'It took seven months to review and process the business license. He pointed out that the letter written by Mr. Harris was dated May 24. He called to inquire before the appeal date had expired to find out the final determination. The response was received on June 3, the day the appeal expired. The appeal was filed the morning of June 4. He pointed out that operations like Kleenco did not exist at the time the code was written; therefore, ,they 'i�re not listed in the code. He felt this use would fit within the M1 zone if it could be shown it is a businesses that is compatible with other M1 uses. Ms. Morris responded that the business license application is not the proper way to find out if a use is allowed In a particular zone. The business license application is a sepakat4 process. She felt the question could have been asked before the purchase of the site. She urged denial of the appeal of administration. Carol Proud stated that she had checked with the plinners and none had talked with the applicant. Usually Fire, Building and Public Works and Planning Departments refer applicants ,to each other. She suggested that the applicant apply for a rezone or utilize the regulatory review process which would involve " the Planning Commission and City Council. Chair Cosby felt that the Board of Adjustment had jurisdiction in this case. Mr. Ramos assumed the Board had jurisdiction in this matter and felt it was their responsibility and obligat # • to use their discretion and offer a decision on the matter. He felt the zoning code should have a certain amount of flexibility. He felt there was sufficient justification to warrant a decision,that would allow the applicant to continue operating within the M1 district. Chair Cosby expressed concern about the business license time line. Ms. Proud explained that staff goes through applications to ' determine if the use is permitted in that zoning district. When 7 Kent Board of Adjustment Minutes August 5, 1991 staff reviewed the application, there was a question regarding the use, and a letter of inquiry was written to the applicant. Mr. McElroy added that the applicant contacted the City several times during this period and was told that everything was okay until a response is received. The application was being routed through the appropriate departments. Mr. Silbaugh added that the applicant received a letter asking for - additional information_ regarding the type of business being conducted and were asked to submit samples of the raw chemicals they were using. The reply from the Planning Department requested the quantity of these chemicals. Since the applicant received no response, he felt the request would be approved. Mr. McElroy clarified that the November 8, 1990 Planning Department correspondence asked for the quantities of the substances listed in the business license application. The concept of being categorically excluded was not heard until March. The formal process was started right away, and since that time the Planning Department has been very prompt in its communication. Chair Cosby stated that he respects the Planning Department and is confident that Mr. Harris gives considerable thought to his decisions. Ms. Proud pointed out that hazardous land use substances can locate in the industrial zone, but there are different development standards and siting criteria used. Mr. McElroy responded that they had filled out the form incorrectly and that they actually used 3,000 pounds. They are allowed up to 20,000 pounds. Ms. Proud responded that this information is utilized by the Fire Department and has nothing to do with the appropriateness in the M1 and M3 zoning districts. Mr. Cosby asked when the applicant moved into the building. Mr. Silbaugh responded that Kleenco moved into the building November 1, 1990. Mr. Flue felt that the description of activities described in the M3 zone supported the Planning Department's decision. Dale R. Silbaugh, 4473 Lake Heights Street, Bellevue, stated that detergent products and cosmetic formulators are allowed in the M1 8 Kent Board of Adjustment Minutes August 5, 1991 zone, and pharmaceutical manufacturers are allowed in M1 zone. An affidavit of Mr. Dirk Verhagen, a person who has been in the chemical industry for many years, stated that people using cosmetic formulations use the same basic ingredients that are used by Kleenco. The only difference is the amounts of the .products used. Mr. Ramos stated that in the M3 district specif is products are noted in the zoning code, but he did not agree with premise that, if they are noted in the M3 they are automatically excluded in the M1 and M2 zone. He referred to item Section 15.04,170 A 16 "Other similar uses which the Planning Director finds cdslpttible with the Principally Permitted Uses. . ." He felt the scale of the operation makes it appropriate in the M1 district. The M3 district basically addresses bulk-oriented type of land uses, uses that were obviously more desirable to locate in that particular area where you have contractor storage yards and other uses that were not so compatible with office park buildings. The size of the Kleenco operation makes it very compatible with the other uses with,in' tbe M1 zoning district. He felt its specialized product type id consistent with those uses normally found within the M1 zoning disirict, and that its functions are compatible. There is no outside storage attached to the use. The facility is well contained within, the existing building. He did not feel the uses were adverse to other uses in the area. Mr. McElroy pointed out that the zoning code does not anticipate this modern industrial process called compounding from intermediate chemicals. Ms. Proud pointed out that Section 15.09. 060 gives -Mr. Harris the authority to make administrative interpretation where it is not clearly stated in any manner of the code. Section 15.09.070 states Any appeal of administrative decisions relating to the enforcement or interpretation of this �*, '' unless otherwise specifically provided for in �j chapter, shall be in writing, and shall be filed wit'h the City Clerk and the Planning Department within teIp �(1O) days after such decision stating the reasons for4 ash appeal. Said appeal shall be heard by the Board of Adjustment and the Board of Adjustment shall render its dectpion within sixty (60) days after the filing of such appeal with the City Clerk and the Planning Department. Ms. Proud continued that there needs to be findings that can be entered into the record. She also added that people have a right to appeal the decisions of the Planning Department .and Planning Director. Section 15.03.040 contains Application of District 9 Kent Board of Adjustment Minutes August 5, 1991 Regulations that Ms. Morris pointed out to you. The list of lists are principally permitted uses. These uses include the description of products and processes that are permitted outright in any zoning district. Accessory uses are usually in conjunction with the permitted uses. Conditional uses are uses which are allowed but must be heard by the Hearing Examiner. The application of district regulations specifically talks about permitted uses. No building or part thereof or other structure shall be - erected, altered, ,added to or enlarged, nor shall any land, building structure or premises be used, designated or intended to be used for any purpose, or in any manner other than is included among the uses hereinafter listed as permitted in the district in which such building, land or premises are located. Ms. Proud stated it was Mr. Harris' interpretation that blending of soap materials and products such .as Kleenco was listed in that list of lists. Mr. Harris felt that the list is specific and that the code may need to be amended. Mr. McElroy felt that the findings would include the fact that the Kent Zoning Code does not anticipate the compounding operation using intermediate chemicals, and that it is permitted and compatible in this zone. Chair Cosby was concerned that if Kleenco were allowed in the M1 zone, would "soapers" also be allowed to locate in this zone. Mr. McElroy responded that the distinction is clear. The soap makers use animal renderings, lyes, and heats those under steam and applies caustics. There is a hazardous waste stream associated with 'the facility. He felt the real issue would be if a primary chemical manufacturing company moved in. This facility would be an enormous industrial facility t4at would have 10 to 20 separate points of regulation in the facility for stack emissions, private treatment, and hazardous waste going out of the facility. Mr. Ramos MOVED to adjourn the meeting to private session. Mr. Flue SECONDED the motion. Motion carried. Chair Cosby called the meeting back into session. Mr. Ramos MOVED to approve the applicant's request for inclusion as a principally permitted use in the M1 zoning district based on the following findings: 10 Kent Board of Adjustment Minutes August 5, 1991 1. The use is not specifically excluded in the M1 district. 2. The use is a specialized and unique use. 3. The use is light manufacturing and is small scale in operation. 4. The use is compatible with adjacent or area uses. 5. The use does not adversely affect other uses and therefore it is a non-nuisance type. 6. The use is unique and exclusive to this type of operation. It is for all of these reasons that the proposed use meets the intent and purpose of the M1 zoning district. Mr. Flue SECONDED the motion. Motion carried unanimously. ADJOURNMENT Mr. Flue MOVED that the meeting be adjourned. Mr. Ramos SECONDED the motion. Motion carried. The meeting was adjourned at 9:30 p.m. Respectfully submitted, ti Jame P. Harr s, Secretary 11