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
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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
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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
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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
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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
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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.
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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
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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
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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
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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:
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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
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