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HomeMy WebLinkAbout1997-12-02 PZC MINUTES• I. CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION December 2, 1997 CALL TO ORDER The regular meeting of the City Planning and Zoning Commission was called to order at 7 :05 p .m. in the Englewood City Council Chambers, Chairman Douglas presiding. Present: Tobin, Weber, Welker, Cottle, Dummer, Horner, Douglas Absent: Styes (no previous notice) Also present: Neighborhood Coordinator Mark Graham Assistant City Attorney Reid II. APPROVAL OF MINUTES November 18, 1997 Chairman Douglas stated that the Minutes of November 18, 1997 were to be considered for • approval. Tobin moved : Dummer seconded: The Minutes of November 18 , 1997 be approved as written. AYES: NAYS: Tobin, Weber, Welker, Cottle, Dummer, Horner, Douglas None ABSTAIN: None ABSENT: Sty es The motion carried. III. COMPREHENSIVE ZONING ORDINANCE Interpretation: Massage Therapy as Permitted Home Occupation CASE #INT-97-01 Mr. Graham addressed the Commission, noting that the issue of massage therapy as a Home Occupation has been raised by an inquiry from Melinda V. Jacobs, 2771 South Pennsylvania Street. Ms. Jacobs proposed to do massage therapy in her home, but was denied a license to do so by the City because the Horne Occupation section of the Comprehensive Zoning Ordi- nance specifically prohibits "Commercial Health Care Facilities". Ms. Jacobs has requested • an interpretation from the Planning & Zoning Commission to determine whether massage ther- 1 \ apy done in a "home setting " constitutes a "commercial health care facility". Ms. Jacobs states in her letter , dated November 6, 1997 , that she would probably treat five to 10 clients • per week , and proposes a "private practice " with no advertising or catering to the general public. The Planning Commission is authorized to make interpretations on issues , as is staff. Mr . Graham stated that staff suggests making a distinction between a "facility " and a "use ". If a "use" (massage therapy) is unobjectionable as a home occupation , and meets the intent of the home occupation provisions as cited in the CZO, then , absent of reasons to prohibit, the use should be permitted . A facility , in the opinion of staff, is a structure devoted to a particular use. Mr. Graham noted that massage therapists have one client at a time , and increased traffic from such a use would be minimal. The City of Englewood does have a provision to license massage therapists , and this license approval is based on qualifications such as experience , education , background checks , etc. Mr. Graham stated that staff understands much of the negativity against massage therapy is the possibility of illicit activities being conducted in conjunction with the massage activity. Mr . Graham reiterated that the provisions governing the licensing of massage therapists are very specific , providing for education, certification, inspection, and background checks on the mas- seuse. Mr. Graham directed the attention of the Commission to citations in the Staff Report, specifi- cally : ,. • The Home Occupation must be incidental to the residential use of the property . • The Home Occupation is limited to no more than 300 square feet of the residence. • No retail sales are permitted except for items grown or prepared on the premises . • The Home Occupation must be conducted by a resident of the home without outside assis- tance . • The hours of operation must not interfere with peace, quiet and dignity of the neighbor- hood. • No separate outside entrance is allowed. Mr. Graham stated that all home occupations must comply with these guidelines. Mr. Graham referenced the Zoning Ordinance , noting that the Home Occupation sections do not list "permitted uses ", but only criteria that the home occupation must meet. Uses specifi- cally prohibited are cited , however , one of them being the "commercial health care facility". He stated that staff is not asking that the Planning Commission begin a list of permitted uses , but to accept the premise that if a proposed use meets cited criteria for home occupation, that it may be allowed as a home occupation , and that staff be allowed to determine whether the spe- cific proposed use meets the cited criteria . Mr. Graham noted that Ms. Jacobs is requesting an interpretation that massage therapy done in the home does not constitute a "commercial health care facility ", as that is the provision on • 2 • • • which the denial of her license application is based. Mr. Graham suggested that the Commis- sion may determine that in-home massage therapy is a "health care facility" and should not be permitted, or that such an operation meets the criteria of a permitted home occupation. Staff recommends that massage therapy done in the home be approved as a permitted home occupa- tion. Discussion ensued. Mr. Homer asked who in the City made the determination that the license application filed by Ms. Jacobs be denied. Mr. Graham stated that he wasn 't sure, but that it was possibly through the licensing division. Assistant City Attorney Reid noted that applica- tions for home occupation licenses are referred to and have to be signed off by staff persons approving the zoning. Ms. Tobin asked if a fire inspection is required. Mr. Graham stated that there is the authority to require and ask for inspections; whether this is actually done he did not know. Mr. Dummer asked if the Commission is being asked to establish standards for the operation of in-home massage therapy, such as hours of operation. Mr. Graham stated that the Commis- sion may do so, noting that this is not defined in the ordinance but that some communities do have specific standards written into their ordinances. Mr. Douglas commented that, in his opinion, the hours of operation could be addressed at the time of specific application . Mr . Welker suggested that if hours of operation are not addressed, someone could operate a home occupation 24 hours per day. It was pointed out that home occupations must be "incidental" to the residential use. Mr. Weber also pointed out that such strictures are not placed on every home occupation, and suggested that if it is necessary it can be addressed at the time of appli- cation. Ms . Reid suggested that the Commission should approach this issue as they did the day care issue in the R-1-A Zone District: consider whether massage therapy should be allowed as a home occupation, or permitted on a case-by-case basis as a Conditional Use. Mr. Weber stated that he did not feel this was similar to the R-1-A day care issue, and pointed out that no home occupations are allowed in the R-1-A Zone District. Ms. Reid emphasized the need for the Commission to have a clear understanding of what they are being asked to do: are they being asked to rule whether massage therapy should be al- lowed as a home occupation in R-1-C, or are they being asked to approve massage therapy as a home occupation for this specific applicant; Ms. Reid pointed out that massage therapy is not listed as a permitted or prohibited home occupation use. This decision would be limited to whether massage therapy would be allowed in the R-1-C Zone District as a permitted home occupation. Mr. Graham clarified that the Commission is being asked to interpret the "use" -- does the "use" -massage therapy conducted in a home -constitute a health care "facility". Does the "use" meet the criteria in the CZO for a home occupation. If the determination is made by the Commission that the "use" does meet the home occupation criteria, then staff will address the issue of whether individual applicants meet the cited criteria. Mr. Graham cited the definition of "Massage" as contained in the CZO. Ms . Reid also cited provisions of Ordi- nance #11, Series of 1997 which removed massage therapy licensing from the licensing mora- 3 torium . Ms. Reid further cited provisions of the Municipal Code pertaining to massage ther- apy providers and premises. • Mr. Homer asked , if the Commission were to agree that massage therapy should be allowed as a home occupation , will this automatically allow massage therapists throughout the R-1-C Zone District; or , can the Commission approve this as a Conditional Use at this meeting. Ms. Reid stated that she did not think approving the specific site is the question before the Commission; there is nothing on record regarding hours of operation, square footage to be used for the busi- ness -the Commission has nothing to indicate that the applicant meets the standards legally . If the Commission had all the facts pertaining to Ms . Jacobs' specific request, they could con- sider whether to approve the massage therapy on a site specific basis . In order for the Com- mission to consider this as a Conditional Use, a public hearing would be required. Mr. Graham reiterated that the initial step is to interpret whether in-home massage therapy is a "commercial health care facility". This is the least interpretation that would be helpful to staff. Mr. Homer asked whether the Commission would be approving specific locations, or setting a precedent. Mr . Graham responded that Planning Commission actions set precedent , and Board of Adjustment actions grant variances on a site specific basis. Ms. Reid suggested that the Commission must consider: 1. Based on the information available , does in-home massage therapy qualify as a • "commercial health care facility ." 2. Does the Commission find massage therapy to be a valid home occupation in the R-1-C Zone District. Ms. Tobin asked what the ramifications might be if massage therapy is allowed as a home oc- cupation in any neighborhood . Ms. Reid stated that the Commission can limit the permission to only the R-1-C Zone District. Mr. Horner pointed out that while Ms. Jacobs says she will see only five to 10 clients per week, someone else who wanted to do massage therapy could have 30 clients per week; this would lead to traffic congestion. Does the Commission want to limit massage therapy approval to only Ms . Jacobs. Mr. Welker pointed out that the home oc- cupation use must be "incidental" to the residential use . Mr. Horner asked if the Commission would have the right to limit the number of clients that may be seen on a daily or weekly basis. Mr. Weber pointed out that this is getting into the issue of "regulations" rather than determin- ing whether or not the massage therapy use should be permitted as a home occupation. If regulations need to be established , this can be done at later time. Discussion ensued . Mr. Graham suggested that the Commission can direct staff to address the way such issues/uses are to be considered when revising the Zoning Ordinance . Ms. Tobin asked if the frrst step for the Authority is to determine whether in-home massage therapy is a "health care facility ". Mr. Graham stated that Ms. Tobin is correct. • 4 ' • • • Tobin moved: Horner seconded: The Planning Commission finds that in-home massage therapy is a "commercial health care facility". Discussion ensued. Mr . Douglas stated that the Commission will make the determination whether massage therapy is a commercial health care facility, and whether in-home massage therapy is an approved home occupation; it will be staff responsibility to determine whether individual applicants meet the home occupation standards , requirements, and guidelines . Mr. Douglas called for the vote. AYES: NAYS : ABSTAIN: ABSENT: None Cottle, Dummer, Horner, Tobin, Weber, Welker, Douglas None Sty es The motion failed. Brief discussion ensued. Mr. Douglas asked if a licensed massage therapist were to apply for a home occupation, will the Commission be required to consider each application. Ms . Reid stated that the motion approved by the Commission is minimal ; however, if the Commission so desires this approval can be restricted to a particular zone district. Further brief discussion followed . Weber moved: Welker seconded: Massage therapy provided by a licensed masseuse shall be a permitted home occupation in the R-1-C Zone District; all applicants must comply with all applicable requirements, standards and guidelines for conduct of a home occupation. AYES: NAYS: Dummer, Horner, Tobin, Weber, Welker, Cottle, Douglas None ABSTAIN: None ABSENT: Sty es The motion carried. IV. FINDINGS OF FACT CASE #OR-97-03 Fences, Walls, and Visual Barriers The Findings of Fact for Case #OR-97-03 were considered. Ms . Cottle asked if the Commis- sion should view a final draft of the proposed amendment prior to approval of the Findings of Fact. Brief discussion ensued . 5 Welker moved : Tobin seconded: The Findings of Fact for Case #OR-97-03 be approved as written. AYES: NAYS: Welker, Cottle , Dummer , Horner , Tobin, Weber , Douglas None ABSTAIN : None ABSENT : Sty es The motion carried . V. PUBLIC FORUM There was no one in attendance to address the Commission. VI. DIRECTOR'S CHOICE Mr. Graham apprised Commission members of an open house scheduled for December 16 , 1997 , 6 :30 p.m. in the Community Room , at which time the preliminary plan for the North Englewood Small Area Plan will be presented to the Commission, City Council , and residents of the north Englewood area. Staff members, and members of the Civitas consulting group will be in attendance to make the presentation and answer questions . Mr. Graham stated that two public hearings will be scheduled before the Commission in January , 1998 , to consider the ' • Small Area Plan as an amendment to the Comprehensive Plan. This process will be followed • by public hearings to consider changes in zoning classification to implement the plan. Mr . Douglas asked if a draft of the Small Area Plan is available. Mr. Graham stated that he had received one copy of the first draft earlier on this date , and he is in the process of editing that draft. Mr. Graham reiterated that the open house is scheduled from 6:30 p.m. to 8 :30 p .m.; refreshments will be available. Mr. Graham stated that staff is requesting an extension of the moratorium for the North Englewood area to allow for consideration of the Small Area Plan and the rezoning hearings . Mr. Graham stated that the South Broadway Focus Group will meet on December 10 m at Mega Bank , 4600 South Broadway. Mr . Graham stated that at the first meeting of this group , d is- posable cameras were given to those in attendance with the request to photograph what they liked and what they disliked along Broadway. These photos will be presented and discussed at the December 1 om session. Mr. Graham stated that a wrap-up session of the Brownfields Task Force has been scheduled for 4:30 p .m. on December 10m, which will be in the Community Room of City Hall . Mr. Graham acknowledged the assistance Mr. Horner has provided as a participating member of this task force . Mr. Graham stated that there is already one application for an assessment loan for a site in Englewood. • 6 Mr . Graham stated that on-site assessments have begun on the General Iron site; results should • be received in the near future. • • Mr. Horner asked when the next business meeting of the Commission will be. Staff stated that the next regular meeting will be January 6, 1998 . Ms . Tobin asked for an update on Cinderella City . Ms. Reid stated that the closing on transfer of the property is anticipated on December 8th or December 10th. Mr. Graham stated that a presentation on the Miller/Kitchell revised site plan will be December 15 th before City Council. Brief discussion ensued. VII. CITY ATTORNEY'S CHOICE Ms . Reid noted that a study session for the Board of Adjustment & Appeals , NBD staff mem- ber s, and Code Enforcement has been scheduled for December 10th , and suggested that Com- mission members might attend if interested. Ms . Reid stated that she has presented the issue of visual barriers at the intersections of East Belleview A venue with South Logan Street and South Washington Street to Code Enforcement and the Traffic Division , but they have not reported back to her. If the barriers are plantings , they may be trimmed or removed . VIII. COMMISSIONER'S CHOICE Chairman Douglas raised the issue of non-attendance by Commissioner Styes , noting that the Commission is lacking one member because of Mr. Garrett's election to City Council. He emphasized the need for a complete membership to consider all the projects that will be com- ing before the Commission. Ms. Reid stated that Recording Secretary Welty has provided the background on her attempts to contact Ms. Styes , and responses received . Ms . Reid stated that she will follow-up with a letter to City Council for Mr. Douglas to sign asking for Ms. Styes removal from the Commission, and a replacement appointment. Horner moved: Tobin seconded : The Assistant City Attorney be asked to write a letter to City Council regarding the non-attendance of Commissioner Kris Styes , to request her removal from membership , and appointment of another citizen to that term. AYES : NAYS: Horner, Tobin , Weber , Welker , Cottle , Dummer, Douglas None ABSTAIN : None ABSENT: Sty es The motion carried . 7 Expiration of terms for Commissioners was discussed. The terms of Mr. Douglas and Mr. Welker expire February 1, 1998. They both asked that application for reappointment be sent • to them. There being no further business to come before the Commission, the meeting was declared adjourned. - Gertrude G. Welty, Recording Secreta lnbd\grouplboardsl plancommlminutcs 97\pcm 12-97a.doc 8 • • '