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HomeMy WebLinkAboutCity Council Committees - Planning-Board of Adjustment - 03/07/1988 • CITY OF 23�51\J� AGENDA BOARD OF ADJUSTMENT March 7, 1988 ,�9Pi IfCTA BOARD OF ADJUSTMENT MEMBERS Robert Jarvis, Vice Chairman Beth Carroll Tracy Faust Walter Flue CITY STAFF MEMBERS James P. Harris, Planning Director Kathy McClung, Associate Planner Stephen Clifton, Assistant Planner This is to inform you of the scheduled meeting of the Kent Board of Adjustment to take place on Monday, March 7, 1988 at 7 : 30 PM in the Kent City Hall, City Council Chambers. Agenda • 1. Call to order 2 . Roll call 3 . Approval of December 7, 1987 Board of Adjustment minutes 4 . Added items to agenda 5. Administration of Oath 6. Variance FRED MEYER - KENT RETAIL STORES (SC) Application #V-88-1 Request for a variance from Chapter 15. 07 . 040 (I) of the Kent Zoning Code to allow an increase in the allowable slopes from 3 : 1 to 2 : 1 along the west, south, east and northwest edges of the site. ONE SIXTY SEVEN BUILDING (KM) Application 4V-88-2 Request for variance from Chapter 15. 07. 060 (P) of the Kent Zoning Code to reduce the required side yard landscaping from ten feet to five feet and request for variance from Chapter 15. 07. 040 (0) of the Kent Zoning Code to reduce the required ten foot landscape buffer next to SR 167 to five feet. Appeal of Administrative Interpretation EMERALD CITY CHEMICAL (KM) Application #AD-88-1 Appeal of requirement for Conditional Use Permit in order to locate a chemical ant in an M3, General Industrial zone. w 2204th AVE. SO.,; KENT,WASHINGTON 98032-5895!TELEPHONE (2061859-3300 KENT BOARD OF ADJUSTMENT MINUTES March 7, 1988 The scheduled meeting of the Kent Board of Adjustment was called to order by Chairman Jarvis on the evening of Monday, March 7, 1988, at 7: 30 PM in the Kent City Hall, City Council Chambers. MEMBERS PRESENT Robert Jarvis, Chairman Tracy Faust Walter Flue MEMBER ABSENT Beth Carroll, excused PLANNING STAFF MEMBERS PRESENT James P. Harris, Planning Director Kathy McClung, Senior Planner Stephen Clifton, Planner Charlene Anderson, Recording Secretary APPROVAL OF DECEMBER 7 , 1987 Mr. Flue MOVED and Ms. Faust BOARD OF ADJUSTMENT MINUTES SECONDED the motion to approve as printed the minutes of the December 7, 1987 Board of Adjustment meeting. Motion carried. ADDED ITEMS Mr. Harris proposed that the Board of Adjustment amend the sections of the bylaws relating to meeting times and quorum. Ms. Faust MOVED that on the Rules and Regulations for Conducting Business of the Board of Adjustment that under MEETINGS, that the meeting day be changed to the first Monday of every month beginning at 7 : 30 and also that on page 4 , under QUORUM, that three (3) members of the Board of Adjustment shall constitute a quorum for the Board of Adjustment and shall be sufficient to act and that the rest of that paragraph be stricken and replaced with language as follows: A simple majority of the quorum shall be sufficient to conduct the Board of Adjustment business. Mr. Flue SECONDED the motion. Motion carried. FRED MEYER - KENT RETAIL STORES Stephen Clifton presented the staff VARIANCE #V-88-1 report and showed view foils depicting the location of the site, proposed slopes, and surrounding zoning. The request is for a variance to allow an increase in the '. 1 i i w i KENT BOARD OF ADJUSTMENT MINUTES ' March 7, 1988 allowable slopes frorq 3: 1 to 2: 1 along the west, south, east and northwest edges of the site. The property is located on the south side of SE 240th Street atIl00th Avenue SE and is 12 .7 acres in size. The property is currently zoned in two categories, eastern 2/3 is CC, Community Commercial 4nd western 1/3 is O, Professional and Office. Topography of the sit4 ranges in elevation from 426 to 390 feet along the west edge of the site. This difference in elevation and large coverage necessary for parking creates the need to cut and fill as proposed. Mr. Clifton described the vegetation on the site, street access, and applic ble goals and policies of the City-wide Comprehensive Plan ald East Hill Plan which are supported by this request. Conditions h ve been imposed on the site to mitigate slippage and erosion potential'. A Final Declaration of Nonsignificance was issued on August 28, 1987 with mitigating conditions. Staff has found that he granting of this variance will not constitute a grant of special privileges inconsistent with the limitations upon uses of other properties; similar requests for variance from other property owners would probably be granted provided adequate stabilization were proposed and no other adverse impact occurred. The variance is needed becouse the topography of the site and the amount of coverage needed for Marking require extensive cut and fill. After reviewing comments from Building, Fire and Public Works, the Kent Planning Department ha determined that granting of the variance should not be materially detrimental to the public welfare. Additional landscaping and the se of cellulose fiber is required on slopes of 2 : 1; slopes greater an 2 : 1 shall be stabilized by a rockery wall. The Kent Planning Dep rtment recommends approval of the variance with conditions stated in t e staff report. Mr. Warren Tyler, Jenson Krause Schoenleber Architects, 1962 NW Kearney Street, Portland, OR P7209 stated that in order to get the maximum use permitted, the site needs a lot of cut and fill, which is balanced out through the use of slopes. Any slopes over 2 :1 have rockery walls and Mr. Tyler agrees wit Mr. Clifton regarding the use of cellulose netting to prevent future slippage; he has no problems with returning to the site to correct any future problems in this regard. In response to Ms. Faust, Mr. Tyler indicated "additional landscaping" required on the slopes has not been totally defined but believes he can work that out with the Planning Department. i Mr. Roger Belanich, }415 - 7th Avenue West, Seattle, owner of the retail service center' east of the site, adjacent to 104th and James Street. Along the common property line of his and Fred Meyer are some poplar trees 60-70' high. He wants to know how Fred Meyer intends to stabilize those trees; he believes the root system has been damaged by grading done previously on the site and the trees now present a hazard to his property. Mr. Harris stated that this issue is not really part 46 KENT BOARD OF ADJUSTMENT MINUTES March 7, 1988 of the hearing this evening but suggested that Mr. Belanich, representatives of Fred Meyer and staff could meet after this meeting to resolve that issue. Mr. Belanich wants to make sure he is protected in this regard. Ms. Faust believes the point made by Mr. Belanich relates to the third criterion for the granting of a variance, i.e. , granting the variance would not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated. Mr. Tyler indicated no grading would be done in the area by the poplar trees. Upon further questioning by Ms. Faust and Mr. Jarvis, Mr. Tyler indicated that the area in which the trees are located is not an area for which the variance is being requested; he does not believe the grading being proposed is going to destabilize those trees. Mr. William E. Ruth, 12410 SE 248th, Kent, represented the Zelda Ruth Trust, owner of the property adjoining the Fred Meyer property to the south. He does not want to have the proposed Fred Meyer site look like the Benson Hill/Petrovisky store; those slopes are not aesthetically pleasing. Referring to the view foil, Mr. Tyler stated that per the Planning Department's requirement, there will be a 6 ' high fence on the red portion of the south side of the site and the property slopes down toward the Fred Meyer site at that location; visual impact would be blocked by both items. As far as he knows, the store to the north has a different retaining material for much steeper slopes; the proposed store would not be done in the same manner. On the blue portion of the south side, the slope would be toward the Ruth site and there would be about a 6 '-8 ' rockery wall and a lot of landscaping in that area for about 80-1001 . Mr. Flue MOVED and Ms. Faust SECONDED the motion to close the public hearing. Motion carried. The Board recessed to executive session. Mr. Jarvis called the meeting back to order. Ms. Faust MOVED to grant the Fred Meyer variance with the conditions that 1) mulch used in covering the embankment be as agreed upon by the City and Fred Meyer on page 8 of the staff report, 2) that additional landscaping be proposed, again as on page 8, to help improve soil stabilization, 3) that any soil erosion, slippage or landslide occurring in the future will be remedied immediately also in accordance with the staff recommendation, and 4) that any detrimental effects related to adjacent landowners be worked out among the developer, the City and the neighbors in accordance with the East Hill Plan overall goal which is to promote orderly development patterns which recognize and respond to the natural environment and the functioning of natural systems. Mr. Jarvis SECONDED the motion. Motion carried. ONE SIXTY SEVEN BUILDING Mr. Harris read a letter in which VARIANCE #V-88-2 the applicant withdrew the request • 3 i E KENT BOARD OF ADJUSTMENT MINUTES March 7, 1988 j i for variance. EMERALD CITY CHEMICAL Assistant City Attorney Bill APPEAL OF ADMINISTRATI E Williamson stated that since the INTERPRETATION AD-88-1 appellant has the burden of proof, it is proper that the Board receive the appellant's testimony prior to j that of staff. Gary Volchok, COLDWEL BANKER, Commercial Real Estate Services, 1600 Park Place Building, eattle, Washington 98101, stated that because the company name as the word "chemical" in it rather than "pharmaceutical, " it ids necessary to be presenting this case before the Board to appeal t*e Planning Director's determination that a Conditional Use Permit is required for the operation of the business. Mr. Volchok stated th;e company's operation is the same as that of a pharmaceutical company1which is permitted outright in the area. The subject property is in an M-3 , General Industrial, zoning district and is located betwee the railroad tracks north of S. 228th on 76th Avenue South. Mr. Vo chok described surrounding land uses. He stated further that there wa an error in the staff report; the building is under 20, 000 square foet (not 30, 000-40, OOC square feet) on a 270, 000 square foot site. IThe entire building will be built to an H2 occupancy. Regarding the Plannin Department comments in the staff report, under #1, zoning code requi ement for a Conditional Use Permit, Emerald City Chemical will not be storing any of the items listed under b, c, and d. Further, "a. " does not apply because the operation is not a bulk storage facility/operajtion. A lot of product has been repackaged into smaller sizes from 15 gallon drums; 25 gallon containers are the largest sizes in the b ilding. Applicant is extremely knowledgeable of codes that regulate Ithe proposed operation and is concerned with safety. Applicant di agrees that it is important to have a detailed analysis of the operation by all departments through the Conditional Use Permit review. Oetbacks, lot coverage, landscaping, ingress and egress, type of plan s on the property, etc. should be considered; however, regulations governing the property will be for the most part lding from Fire, Bui a $ Engineering. Assistant Fire Marshall Evans has stated that the Cityj of Kent has in existence every ordinance or control that would apply to the proposed use. Also, Title 80, which has not as yet been fu ly adopted, will detail additional ways in which people are to store and handle the type of product that is being put into this building. Mr. Volchok described the safety features of the building and stated the banks, themselves, require an environmental review of a project prior to loaning money. Mr. Volchok stated the applicant is in compliance with all eight criteria reviewed by the i 4 KENT BOARD OF ADJUSTMENT MINUTES March 7, 1988 Hearing Examiner for a Conditional Use Permit; he reviewed those criteria. He added that the additional time required for a Conditional Use Permit is not warranted; the same plans that are required for a Conditional Use Permit can be turned into the City and approved in the pre-development meeting and normal plan review process. Glen Dodge, 18808 Wallingford North, Seattle, WA 98133, President of Emerald City Chemical. The company has been in business for four years and is looking to grow. Mr. Dodge distributed photos of the site, roads, ingress/egress, railroad, catalogs and catalog sheet showing different types of chemicals that the company packages, photos of Fiberchem facility, excerpt from Conditional Use Permit for Fiberchem in which the Fire Department indicates there is no objection to the facility as long as codes and requirements of the City and the National Fire Prevention Association are met and which indicates that a Declaration of Non-significance was issued for the Fiberchem operation, pages from THE UNITED STATES PHARMACOPEIA, and pictures of the types of drums used in the Emerald City Chemical operation. Mr. Dodge stated the main issue is bulk versus non-bulk storage. Emerald City Chemical is in the business of repackaging chemicals into smaller containers. Products are purchased in 55 gallon drums, which is the largest container they have. Pharmaceutical/soap manufacturers are allowed outright in the zone in which Mr. Dodge proposes to locate his business. The name "pharmaceutical company" can represent a bulk facility as well. Mr. Dodge described ingredients in several well- known products and indicated his company packages similar products. THE UNITED STATES PHARMACOPEIA lists items as "pharmaceuticals" such things as caustics, sodium hydroxide, nitrate, sodium nitrite, alcohols; these items are packaged and manufactured by pharmaceutical companies. Emerald City Chemical is concerned with hazard containment; they have been working with the new Article 80 codes regulating the handling of hazardous materials, since March, 1987. . .the containment systems, segregated rooms and chemicals, bermed walls, fire walls, and setbacks. Mr. Dodge has been in the business for 12 years, has a competent staff for handling chemicals and has been commended on their D.O.T. performance, shipping regulations, etc. He looked at four areas in South Snohomish County and North King County in which to locate the business but was concerned about their being next to residential areas; Snohomish County officials felt an appropriate zone was light industrial and business park. Emerald City Chemical does not believe funds spent in the Conditional Use Permit process would be well spent; he strives to do his best to conform to the needs of the communities in the area in which he looks to build; delays caused by CUP process would be a hardship on the company. Mr. Dodge described the present location of the company and the reasons for seeking another location. Mr. Dodge stated the type of work the company does is directly related to M-3 zoning, soap and pharmaceuticals. Facilities would far surpass any current facilities. 5 i KENT BOARD OF ADJUSTME T MINUTES March 7, 1988 i I In response to Ms. Fa st's question on storage, Mr. Dodge stated that per current fire reg lations, flammable drums will be in contained rooms of 3,000 sq. ft. with the highest class rated automatic sprinkler system in the code books, with 4-hour walls that are the highest wall structure in the area, jand with 3-hour curtain doors, the rated curtain doors for 4-hour wall. The sprinkler system has automatic call-out. Oxidizers and corrosi es are in similar areas by codes, with material separations to preent interactions and separation by hazard classifications. Poisons are in an individual room, small, same fire rating, separate, segregated doors. Another small section, "Dangerous when wet" materials, containers of flammable solid metal powders have their own small room with high rating and halon system. The entire building is in H2 rating even though some parts of the building could be B2 standard occupancy rating; building will be a high standard of the industry for a lon# time to come. Kathy McClung, Kent Tanning Department, explained the background of the request and the Conditional Use Permit process. Staff believes a public hearing is necessary in order to have all information brought into the open, from city departments, applicant, and the public. Ms. McClung distributed c pies of principally and conditionally permitted uses in the M3 zoning district. Applicant initially presented the company as a chemicalcompany; staff considers what a company does, not what it is named, when they determine applicable regulations. Chemical processing, handling, and packaging are not listed as permitted uses. Staff looked at the use the company was proposing and determined it was illustrative of the h avier uses listed under Conditional Uses. Ms. McClung named other companies in the area who were required to comply with the Conditionals Use permit process; this determination was consistent with othe determinations made for uses in the area. Assistant Chief Berg of the Fire Department agreed that the public had been cut out of the equation unless the applicant goes through the Conditional Use Permit process. Ms. McClung stated that on the first page of his letter, i the applicant refers to providing specialty manufacturing service.1 making materials from liquid rust among other things. Staff has information that liquid rust is a synthetic compound, which is Listed under Conditional Uses. Ms. McClung indicated that if the applicant had applied for a Conditional Use Permit when he first approached the city with this project, the public hearing would most likely have been this month. In response to Ms. Fast, Ms. McClung stated that an applicant is told a Conditional Use permit application is required either at the time of a phone inquiry, or (through a business license application if the applicant has not prey ously contacted the City. Emerald City Chemical contacted the Planning Department before applying for a business license. i 6 1 i i i KENT BOARD OF ADJUSTMENT MINUTES March 7 , 1988 Bill H. Williamson, Attorney for the City of Kent, responded to Chairman Jarvis' question of whether it is the Fire Department who covers the issues raised by this company's operations and if the real issue is whether to hold a public hearing; Mr. Williamson stated that the Fire Department's role in regulating the company has nothing to do with the appeal of the Planning Director's determination that a Conditional Use Permit is required for the operation of the business. The appeal is intended to state why the Planning Director's interpretation is not correct. Mr. Williamson explained that the Law Department is representing the staff and not the Board of Adjustment at this hearing. Mr. Williamson read from the State Planning Ruling Act regarding the granting of conditional uses. The procedure has been adopted by the City of Kent, and the Planning Director used the Kent Zoning Code (in this case Chapter 15. 04 . 190(C) ) to determine that a Conditional Use Permit is required. The appellant then has the burden of proof to show there has been an mistake of law committed or that the Planning Director' s action is arbitrary and capricious. Mr. Williamson asked that the Board of Adjustment make findings of fact and conclusions of law since this is a quasi judicial proceeding. Mr. Williamson read from Dick Suttle, a Law Professor at UPS Law School, regarding the purpose of conditional uses. The law industry and the state give the cities the core authority to require Conditional Use Permits. Mr. Williamson stated that the issue before the Board is narrowly scoped, i.e. , the nature of the Director's decision, the appeal of the Planning Director's determination that a Conditional Use Permit is required for this project. The other procedures required in the normal permit process, or whether duplication of information will occur in other steps of the process, do not apply to the issue before the Board. Using the information supplied initially by the applicant, staff made a determination to require a Conditional Use Permit; Mr. Williamson read from Chapter 15.04 . 190(C) and indicated that the proposed use falls into the category of conditional uses via a very liberal classifier indicating the list is not all-inclusive. Via applicant's own documents, the proposed use fits into subparagraphs 1, 21 3 , possibly 4, and possibly 8 which deals with bulk storage. Regarding subparagraph 1, applicant's January 22, 1988 letter, page 1, states the company supplies "a complete line of chemicals. . . " and provides a "specialty manufacturing service . . . in making materials ranging from liquid rust, to such high quality laboratory solutions as cupriethylene diamine for wood pulp testing. " The additional materials provided by the applicant at this meeting describe the wide range of 7 i j KENT BOARD OF ADJUST4T MINUTES March 7, 1988 products provided to the public. On page 2 of that letter, regarding the amount of storages being undertaken, applicant states "I agree it sounds large as written but if you think of it as one truck load in size (ie 8 foot by 40 foot trailer) I believe it leaves a cleaner picture as to relative size in terms we recognize and see every day. " Applicant mentioned 55 gallon drums. Mr. Williamson reiterated Ms. McClung's statement that liquid rust is classified as a synthetic material (reference subparagraph 2 of Chapter 15. 04 . 190 (C) regarding synthetic materials) . Under the list of Conditional Uses in Ithe zoning code is the term "manufacturer. " Emerald City Chemical in addition to repackaging products, does manufacture some products and blends some products. Page 4 of the January 22 letter relfers to "mixing and handling of quantities of flammable liquids; " he applicable regulation is subparagraph 3 of Chapter 15. 04. 190 (C) of the Kent City Code which relates to "Refining of materials such as , petroleum and petroleum products. . . " One can question whether paint has some petroleum derivatives or organic compounds falling within this classifier. The manufacturing process is subject to closer scrutiny by the City than the non-manufacturing process. i Regarding subparagraph 8 on bulk storage, Emerald City Chemical stores products in 55 gallon Orums; a 55 gallon drum is covered under the Bulk Sales Act in quantity !if it is intended for wholesale use. The term is not defined by the KeAt Zoning Code but it provides in the term itself its definition. Als�, subparagraph 8 refers to "similar products. " The list is not inten d to be exclusive. Even if applicant's �peration could not be classified directly into subparagraphs 1, 21 31 4 and 8, Mr. Williamson stated the liberal classifier in the zo ing code, which states the list of conditional uses are illustrative and not exclusive, would encompass the operation. The City asks that 1) the Board make findings of fact that applicant's activities constitute a use subject to KCC 15.04 . 190(C) and that the use would occur in ; the M-3 zoning district, 2) the Board make conclusions of law that KCC 15. 04 . 190(C) establishes adequate substantive and procedural standards and criteria for the proposed use in question under stare law and make conclusions of law that such use is not a permitted se under KCC 15. 04. 190 (A) as appellants have argued, 3) the appellant must apply for a Conditional Use Permit pursuant to KCC 15.04� 190 (C) , 4) the City directly apply the standards of KCC 15. 04. 190 and '5) the appellant's appeal of the interpretation given by the Planning Director be denied. In response to Ms. F ust, Mr. Williamson stated that after rereading KCC 15. 04. 190 (C) (2) , # relates to rubber from synthetic material and not other synthetic ! materials. In response to Ms. Faust, Mr. 8 i i KENT BOARD OF ADJUSTMENT MINUTES March 7 , 1988 Williamson related applicant's statement on "mixing and handling of quantities of flammable liquids" to paint which contains petroleum products regulated by KCC 15.04. 190(C) (3) "refining of materials such as petroleum and petroleum products. . . " Ms. Faust questioned equating the words "refining" and "blending" and asked that Mr. Williamson provide to the Board the sources for that analogy. Mr. Williamson added that perhaps the information provided to the Board at tonight's meeting fits the proposed use under KCC 15. 04.190 (C) (4) relating to "distilling; " he stated the Planning Department made a decision without the advantage of some of the material submitted at this meeting. Again, the liberal classifier could encompass other uses. Furthermore, using the applicant's arguments, neither are the uses the applicant supplied to the City directly permitted under the code. It is inconceivable to the City that the nature of activity involved with such a quantity of chemicals and diverse activities would not be subject to a Conditional Use requirement. Ms. Faust questioned the statement that the appellant has the burden of proof. Mr. Williamson stated that requirement is not in the Kent City Code (KCC) nor in the Revised Codes of Washington (RCW) , but it is provided in case law of the State of Washington. Appellant carries the burden to come forward; it is a civil burden, not proof beyond a reasonable doubt; they have to show by a preponderance before the Board that the Planning Director's actions were a mistake in law, that they were arbitrary and capricious, i.e. , the PARKRIDGE vs CITY OF SEATTLE standard in reviewing a quasi judicial activity to an administrative body. Mr. Williamson will provide to the Board the cite for that case. Mr. Dodge responded to the applicability of KCC 15. 04. 190 (C) (1) to the applicant's operations. This item relates to "basic" materials, i.e. , types of things dug out of the ground, "first-come" chemicals. Applicant does not make "basic" items. In response to Ms. Faust, Mr. Dodge stated he gets his definition of the term "basic" from his background and affirmed for Ms. Faust that the definition given would be a common understanding of the term. Relating to subparagraph (2) , applicant states in the January 5th letter that the company does not deal with explosives. Regarding distilling and refining of materials, refining refers to cleaning of an item in bulk process and stated the company does not distill products. Mr. Dodge stated all materials provided in the folder, except pictures, were previously provided to the City. Discussion occurred on "bulk" storage. Mr. Dodge responded to Ms. Faust that in the industry, a 55 gallon drum of any of the company's products would not be considered bulk; the smallest container classified as "bulk" is a 375 gallon container and a 55 gallon container would be labeled "drum. " Article 80 describes a container as a unit 60 gallons or less. Mr. Dodge quoted from KCC 15. 04. 190(A) (6) and related his operations to those permitted uses. Isopropyl alcohol is listed as pharmaceutical in the USP. Mr. Dodge remembered a company 9 i i KENT BOARD OF ADJUSTM T MINUTES March 7, 1988 i contract for ferric hydroxide (liquid rust) that was lost to a pharmaceutical company in Louisiana, indicating that this product is also a pharmaceutic 1 one. Relating to mixing of paint, KCC 15. 04. 190 (A) (19) Principally Permitted Uses refers to "Manufacturing of paint. " As explained; in applicant's letters of January 5 and January 22, although the applicant might purchase products in larger quantities for competitive pricing, there would be immediate shipment to distributors and the (average storage quantities would be much less. Hazardous chemicals rlepresent about 30-40% of the stocking material, one-third of the bui ding site maintained for storage of material. Similar businesses have been allowed to locate in the ,area; they were not determined to be of major significance for fire-related issues, etc. . The review of the eight criteria for granting a Conditional Use Permit has taken plac� for those similar uses; the City knows what is going on in that area.! In response to Ms. Faust, Mr. Dodge stated that liquid rust falls undejr KCC 15.04. 190 (A) (6) Principally Permitted Uses, manufacture of pharmaceuticals and stated he does not know what liquid rust is used for in the pharmaceutical line. Further, Mr. Dodge responded that cupri thylene diamine would probably fall under KCC 15.04 . 190 (A) (2) Principally Permitted Uses, scientific research and testing; it is a testing reagent. i Mr. Gary Volchok spoke' about the companies mentioned by staff as having gone through the Conditional Use Permit process. In meetings held with the Planning Director, Fire Marshall, Engineering and the Mayor, it appeared that the only one requesting a hearing is the Planning Director; Mr. Volchok believes that request is arbitrary and capricious and relates to the pa t history of hazardous chemical cleanups in which the City has had ti become involved. Mr. Volchok believes the operations of Emera�d City Chemical fall under the Principally Permitted Uses of thelKent Zoning Code, Chapter 15. 04. 190 (A) (6) (a) and (b) . In response to *s. Faust, Mr. Volchok replied that the company's operations fit under ] subparagraph (b) because of the cleaning and cleansing preparations. Mr. Williamson reitefrated the use of the words "such as" under Conditional Uses. Re larding the term "basic", the zoning code refers to "basic" materials or products; he would like to know what a product is that is basic as described in the zoning code. The City believes the language is broad enough to require a Conditional Use Permit. Mr. Williamson will provi a research on the term "bulk storage" and how that term has been used by Washington State agencies for purposes of regulating industrial activities. Mr. Dodge reiterated hat Article 80 states "containers" are 60 gallons or less. Article 8 was produced by the Fire chiefs and will be adopted in May into t1he Uniform Fire Code for the nation. Mr. Dodge affirmed that this was not yet part of the Kent City Code; however, 40 10 i i i ` r KENT BOARD OF ADJUSTMENT MINUTES March 7, 1988 Lieutenant Evans of the Fire Department believes it will be adopted shortly and would be happy to have applicant use it as a guideline. Mr. Flue MOVED and Mr. Jarvis SECONDED the motion to close the public hearing. Motion carried. Chairman Jarvis stated this issue will be taken into Executive Session and under advisement. The Board of Adjustment will respond after they receive additional information by Wednesday, March 9th. It is hoped the decision would be made in about one week. Mr. Williamson's office is to provide citations and RCW information on the "arbitrary and capricious" standard and on the definition of "bulk. " Mr. Harris stated the Board may issue written Findings. ADJOURNMENT The meeting was adjourned at 10:20 PM. Respectfully submitted, James Harris, gecretary to i 11 • BOARD OF ADJUSTMENT CITY OF KENT CASE NO• AD-88-1 SUBJECT: APPEAL OF EMERALD CITY CHEMICAL, INC. INTRODUCTION This appeal came before the Board of Adjustment on March 7, 1988. Both appellant and City of Kent Planning Department appeared and gave testimony. The Board makes the, following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Emerald City Chemical , Inc. (ECCI) is a Washington coporation seeking to relocate its Seattle business to Kent. 2 . The business is to be located in an M3 , general industrial zone of Kent. 3 . It is not disputed that all building specifications meet or • exceed requirements imposed by the City Fire and Building Departments and the Engineering Department for the handling of chemicals. 4 . Emerald City Chemical, Inc. repackages and blends a variety of chemicals from 55-gallon drums and similar-sized containers into smaller packages not exceeding five gallons or 25 pounds. 5. The types of chemicals include pharmaceuticals, basic cleaning preparations and specially blended compounds such as liquid rust. Some of these chemicals are flammable, corrosive or poisonous. 6. The Kent Planning Department determined in January, 1988, ' that ECCI would be required to apply for a conditional use permit. 7 . The Planning Department based its decision upon letters and materials submitted by Emerald City Chemicals, Inc. to other City departments regarding the types and uses of chemicals in its business. 8 . The Planning Department based its decision upon Kent City . Code Section 15.04 . 190, especially parts A and C. The reason given for requiring a •conditional use permit was 15. 04. 190: C. Conditional Uses. The following are the } A types of conditional uses permitted in the M3 district, subject to approval by the Hearing Examiner. The list of conditional uses is illustrative of the types of uses which shall be permitted and not intended to be exclusive. (8) Storage of the following kinds of goods: (a) bulk storage of oil, gas, petroleum, butane, propane liquid petroleum gas, and similar products, and bulk stations and plants. CONCLUSIONS OF LAW 1. The Kent Planning Department has the authority to require M3 conditional use permits for businesses not conforming to Section 15. 04 . 190A and falling into the uses covered by Section 15. 04. 190C of the City of Kent Zoning Code. 2 . The purpose of the General Industrial 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. " 3 . According to the definitions supplied by both parties: a) Article 86, Hazardous Materials, defines containers as vessels less than 60 U.S. gallons or less; b) Kent City Uniform Fire Code defines a bulk plant or terminal as one where tank vessels, pipelines, tank cars, or tank vehicles are stored or blended in bulk; c) Dangerous Waste Regulations, Title 173 WAC, are not applicable to ECCI because it is not a generator of dangerous or hazardous waste. 4. ECCI is not in the business of bulk storage of any conditionally permitted materials, it does not maintain bulk stations and plants, and it does not store any of the materials identified in 15. 04. 19bC(8) . 5. The Planning Department lacked sufficient information to determine that ECCI's use required a conditional use permit under Section 15. 04 . 190C(8) . Therefore, its decision was not supported by the evidence and must be reversed. HOLDING HELD for appellant, Emerald City Chemicals, Inc. Dated this day of_ , 1988 . . Rob rt J is Walter Flue Tra y Faust