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HomeMy WebLinkAbout1994-01-04 PZC MINUTESt CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION JANUARY 4, 1994 I. CALL TO ORDER. The regular meeting of the City Planning and Zoning Commission was called to order by Vice-Chairman Roger Shoop in the City Council Chambers of the Englewood City Hall. Members present: Dummer, Gerlick, Mason, Shoop, Tobin, Clemens Merkel, Ex-officio Members absent: Garrett, Covens Also present: Planning Administrator Harold J. Stitt City Attorney DeWitt II. APPROVAL OF MINUTES December 21, 1993 Vice Chairman Shoop asked for consideration of the Minutes of the December 21, 1993 meeting. Clemens moved: Tobin seconded: The Minutes of December 21, 1993 be approved as written. AYES: NAYS: ABSENT: ABSTAIN: Gerlick, Mason, Shoop, Tobin, Clemens, Dummer None Garrett, Covens None The motion carried. ID. · C01\1PREHENSIVE ZONING ORDINANCE Amendments to: §16-4-12 B-2 District, § 16-4-13 I-1, Light Industrial District, § 16-4-14 I-2, General Industrial District § 16-8-1 Definitions Vice Chairman Shoop asked for a motion to open the Public Hearing. Tobin moved: Clemens seconded: The Public Hearing on Case #5-93 be opened. CASE #5-93 AYES: NAYS: ABSENT: ABSTAIN: Gerlick, Mason, Shoop, Clemens, Dummer, Tobin None Garrett, Covens None The motion carried. Mr. Shoop set forth the parameters for conduct of the Hearing, and asked for staff presenta- tion. Secretary's Note: Notice of the Public Hearing was published in the Englewood Herald on December 16, 1993: Harold J. Stitt was sworn in, and testified that the amendments to the Comprehensive Zoning Ordinance (CZO) which are before the Commission at this time deal with the issue of adult businesses and modified definition of "adult bookstore". Mr. Stitt testified that the changes in the Ordinance are in response to a Court decision which declared the "Conditional Use" ap- proval provisions for adult businesses to be unconstitutional. Community Development staff members have met with the City Attorney's staff, and the proposed amendments to the CZO will now include adult businesses/service facilities as "Permitted Uses" in the B-2, I-1, and I-2 Zone Districts. Other provisions, such as the distance factors which ~e presently contained in the CZO, will remain the same. There must be 500 feet between an adult business and any residential zone district, from any church, public park, public library, community center, or educational institution , whether within or without the City limits. There must be 1,000 feet between adult entertainment or service businesses. The modification to the definition for "Adult Bookstore" arose as a result of .a prospective businessman wanting to locate on Broadway, but whose business realizes more than 10% of the "gross sales" from the sale of adult materials, even though the business itself is not classi- fied as an "adult business". Therefore, the modification to a percentage of the square footage was considered, and the 8% figure which was determined at the December 21st meeting has been used in rewriting this definition. Use of the square footage approach will provide a more accurate, enforceable , and definable way to regulate bookstores who do have some "adult ma- terial" for sale. Mr. Stitt presented a map of the City which indicates, on a rough basis, areas of the City in which adult businesses could locate. These areas have not changed since the ordinance restricting location of adult businesses was enacted in the early 1980's, because the distance factors from residential, public uses, and from other adult businesses have not changed. Mr. Stitt emphasized that this particular map is not to scale; a to-scale map will be prepared in time for the Public Hearing before City Council on this issue. Mr. Stitt pointed out that the map indicates that there is not a great deal of area where an adult business could locate. The Courts have held that a range from 5 % to 20% of the total area of a City may be designated for loca- tion of adult businesses. Mr. Stitt stated that a calculation of the percentage ratio for the City will be available at the City Council Hearing. 2 \ ., Mr. DeWitt then addressed the Commission regarding the proposed modification of the adult bookstore definition. Mr. Dummer requested clarification on the distance factors cited by Mr. Stitt. Mr. DeWitt and Mr. Stitt further addressed the distance factors, noting that there are commonly two methods of controlling the location of adult businesses: the "combat zone" where they are allowed to congregate in a several block area; or the dispersal method with distance factors cited. The dispersal method has been used in the Englewood Ordinance since its adoption, and this restriction was not part of the challenge to the Ordinance in the spring of 1993. Mr. Covens entered the meeting at 7:20 P.M. and took his seat with members of the Com- mission. Ms. Tobin asked why it .is better for a small community to use "dispersal" rather than the "combat zone" in regulating adult businesses. Mr. DeWitt pointed out that with the "combat zone" approach, a designated area is chosen for this use, and that the community is "giving up that portion of the City" to adult businesses. Mr. Covens asked if there would be any problem in increasing the 500 foot limit to 1, 000 feet. Mr. De Witt stated that this hasn't been an issue, and the Courts have approved the 500 foot and 1 , 000 foot limitations. Discussion ensued on the 1, 000 foot rule between adult business establishments. Mr. Stitt stated that the 1,000 foot distance between adult businesses applies only to those within the corporate limits of Englewood, not to "within or without" as does the distance factor from residential, religious, educational, etc. Mr. DeWitt commented that this might be an area that could be explored for "new law" --to state that the 1,000 foot distance between such establishments would apply "whether within or without" the limits of the City. Mr. DeWitt did point out that the Supreme Court has not ruled against adult businesses in a "non-child" case in the last 17 years. The modification of the adult bookstore definition was then discussed. Mr. DeWitt suggested further modification, by eliminating the words "and includes a place with only a portion or section of its area s_et aside for the display or sale of such material to adults". Also proposed is the elimination of the words "open to ·the", and the addition of the word "area". The defini- tion would then read: A place where books, magazines, motion pictures, VIDEOS, prints, photographs, periodicals, recordings, novelties and devices, or any of these things, which have as their primary or dominant theme, matter depicting, illustrating, describing or relating to specified sexual activities, and includes a place 'Nith only a portion or section of its area set aside for the display or sale of such material to adults, are sold or offered for sale to adults, except that any place otherwise included within this definition that deriYes DEDICATES not more than ten percent (10%) of its gross income from EIGHT PERCENT (8%) OF ITS RE- TAIL SQUARE FOOTAGE THAT IS OPEN TO THE PUBLIC AREA FOR the sale of such material shall be exempt from the provisions of this Title so long as such material is kept in A SEPARATE AND DISTINCT AREA OF THE PREMISES WHERE VISIBILITY OF THE ADULT MATERIALS IS RESTRICTED TO THOSE WITHIN THE SEPARATE AND DIS- 3 TINCT AREA AND ACCESS TO THIS AREA IS CONTROLLED. a location where it is not visible and shall not be a self service item for the customers of such place. Mr. DeWitt then suggested that a second new definition of "Public Area" be added to the CZO, which definition was proposed to read: "With respect to an adult use and the determi- nation of percentage of use on a single premises, public area is that physical area in terms of floor square footage that is freely and unrestrictedly open to the general public and used for re- tail trade, it does not include service areas such as furnace rooms, loading docks, warehouse space, bathrooms, storage, or counter and clerk space for cashier. The calculation of the per- centage of use dedicated to adult materials shall be based on floor square footage and shall be a result of the calculation of the following formula: the denominator being the public area and the numerator being the floor square footage dedicated to the adult use". Commission members posed questions on the method of calculation proposed in this definition. Mr. DeWitt discussed and demonstrated his intended method of calculation. The issue of "regulating location" of adult businesses versus controlling the operations was discussed. Mr. DeWitt emphasized that location regulation is the function of zoning; the op- eration of the business can be addressed by other means, such as licensing. Ms. Tobin inquired as to the cost of a license for an adult business. Mr. Stitt stated that it had been $1,000; however, the licensing provision of the Englewood Municipal Code for adult businesses was also ruled unconstitutional, and he does not know what present provisions are, if any. Further questions regarding the proposed wording of the "Public Area" definition were posed by Commission members. Mr. DeWitt suggested a change in wording to: " ... open to the general public and used for retail trade PLUS ALL AREAS DEDICATED TO ADULT USE; HOWEVER, it does not include service areas such as ... " Mr. Shoop inquired whether "specified sexual activities" should be defined. Mr. Stitt stated that this phrase is presently defined in the CZO. Mr. Clemens inquired whether the restrictions would apply only to adult materials that are for sale; should they not also apply to adult materials that might be rented. Mr. DeWitt agreed that this is a point that should be addressed, and suggested adding the words " ... sexual activi- ties, are sold, RENTED, or offered for sale OR RENTAL to adults ... " to the definition of adult bookstore. Further discussion ensued on the map prepared by Mr. Stitt. Concerns about wholesale versus retail sale of adult materials, and catalog sales were ex- pressed by members of the Commission, and addressed by Mr. DeWitt and Mr. Stitt. Mr. DeWitt stated that whether the materials are offered for sale, rental, whether the establishment 4 •' is open to "members only", etc., secondary effects on the neighborhood are what have to be addressed. Mr. Covens asked if there was anything further to be brought before the Commission during the Hearing. Shoop moved: Clemens seconded: The Public Hearing on Case #5-93 be closed. AYES: NAYS: ABSENT: ABSTAIN: Mason, Shoop, Tobin, Clemens, Dummer, Gerlick, Covens None Garrett None The motion carried. Mr. Covens asked for discussion on the proposed amendment by City Attorney DeWitt to de- lete the words " ... and includes a place with only a portion or section of its area set aside for the display or sale of such material to adults" ... Tobin moved: Shoop seconded: The definition of Adult Bookstore be amended by deleting the words " ... and includes a place with only a portion or section of its area set aside for the display or sale of such material to adults" ... AYES: NAYS: ABSENT: ABSTAIN: Shoop, Tobin, Clemens, Dummer, Gerlick, Mason, Covens None Garrett None The motion carried. Mr. Covens questioned the method of determining the 8 % square footage, and felt the percent- age should be tied to the square footage cited in a lease document. Discussion ensued. Mr. Mason questioned whether the 8 % of "legitimate public space" would present a better argu- ment that there is no restriction of free speech, rather than a percentage which includes areas not used by the public, such as furnace areas, loading docks, etc. Mr. DeWitt agreed that it will probably be a stronger argument. Mr. Covens inquired about the possibility of increasing distance factors to cover all areas of the B-2 Zone District. Mr. Stitt stated that the distance factors would have to be increased in the B-2 Zone District regulations. The ramifications of an adult business locating in the few areas of the B-2 District where it appears they could meet the distance factors were discussed at length. Mr. Stitt emphasized that the distance factors have not changed since the adult busi- ness regulations were first enacted in the early 1980's; whatever areas in the B-2 District ap- 5 pear vulnerable to adult business location on the map he prepared for this Hearing, have al- ways been vulnerable to adult business location. Mr. Covens stated that he has no problem e with location of adult businesses in the I-1 or I-2 Districts, but he does have a problem allow- ing adult businesses in the B-2 District. Further discussion ensued. Clemens moved: Covens seconded: The motion carried. Shoop moved: Tobin seconded: The definition for adult bookstore be amended to read: " ... sexual ac- tivities, are sold, RENTED, or offered for sale OR RENTAL, to adults ... " The definition for adult bookstore be amended by eliminating the words "OPEN TO THE", and adding the word AREA after PUBLIC. The revised definition for Adult Bookstore now reads: A place where books, magazines, mo- tion pictures, VIDEOS , prints, photographs, periodicals, recordings, novelties and devices, or any of these things, which have as their primary or dominant theme, matter depicting, illustrat- ing, describing or relating to specified sexual activities, are sold, RENTED , or offered for sale OR RENT AL, to adults , and includes a place with only a portion or section of its area set aside for the display or s~e of such material to adults, except that any place otherwise included within this definition that derives DEDICATES not more than ten percent (10%) of its gross income from EIGHT PERCENT (8%) OF ITS RETAIL SQUARE FOOTAGE THAT IS OPEN TO THE PUBLIC AREA FOR the sale of such material shall be exempt from the pro- visions of this Title so long as such material is kept in A SEP ARA TE AND DISTINCT AREA OF THE PREMISES WHERE VISIBILITY OF THE ADULT MATERIALS IS RE- STRICTED TO THOSE WITHIN THE SEP ARA TE AND DISTINCT AREA AND ACCESS TO THIS AREA IS CONTROLLED. a location where it is not visible and shall not be a self service item for the customers of such place . Mason moved: Clemens seconded: The definition for PUBLIC AREA be amended to read: "With respect to an adult use and the determination of percentage of use on a single premises, public area is that physical area in terms of floor square foot- age that is freely and unrestrictedly open to the general public and used for retail trade, PLUS ALL AREAS DEDICATED FOR ADULT USE; HOWEVER it does not include service areas such as furnace rooms, loading docks, warehouse space, bathrooms, storage, or counter and clerk space for cashier. The calculation of the percentage of use dedicated to adult materials shall be based on floor square footage and shall be a result of the calculation of the following formula: the de- nominator being the public area and the numerator being the floor square footage dedicated to the adult use". 6 The motion carried. Clemens moved: Mason seconded: The Planning Commission approve the proposed amendments to the Comprehensive Zoning Ordinance, §16-4-12 B-2 Business District, §16- 4-13 I-1 Light Industrial District, § 16-4-14 I-2 General Industrial Dis- trict, and §16-8 Definitions, and that these amendments be recommended to City Council. AYES: NAYS: Tobin, Clemens, Dummer, Gerlick, Mason, Shoop, Covens None ABSENT: Garrett ABSTAIN: None The motion carried. IV. ALLEY VACATION Block 2, Taylor's Addition CASE #1-94 Mr. Stitt stated that the proposed alley vacation is for the west leg of the "T" alley in Block 2, Taylor's Addition, and is in conjunction with the recent rezoning of a portion of this block, which is owned by the Englewood Housing Authority, to facilitate relocation of the Engle- wood Depot. The vacation of the west leg of this alley will have minimal impact on the traffic circulation in the area. Mr. Stitt stated that letters were sent to all property owners of record, as well as all renters of record, notifying them of the request, the time, date, and place of this meeting. He stated that he received one telephone call in response to the letter, from a gen- tleman who asked for clarification of the request, but registered no opposition to the vacation. Mr. Stitt stated that the Utilities Department does have a sewer line in this portion of the alley, and a 16 foot utility easement will have to be retained. The turning radii may have to be modified, however if additional property is needed from that owned by the Englewood Hous- ing Authority, it will be given. Gerlick moved: Tobin seconded: The Planning Commission recommend to City Council that the west leg of the "T" alley in Block 2, Taylor's Addition, be vacated, and that a 16 foot utility easement be retained. Mr. Shoop asked about turning movements for garbage trucks and moving vans. Mr. Stitt re- iterated that the corners are "flared", and that if the radii has to be modified further, it will be. The vote was called: 7 AYES: NAYS: Clemens, Dummer, Gerlick, Mason, Shoop, Tobin, Covens None ABSENT: Garrett ABSTAIN: None The motion carried. V. PUBLIC FORUM. No one was present to address the Commission. VII. DIRECTOR'S CHOICE. The terms of Mr. Shoop and Mr. Covens expire on February 1, 1994. The Secretary was asked to mail applications to both gentlemen. Invitations to attend a session on Cinderella City on Saturday, January 8, 1994, and copies of the MAS Marketing Executive Summary, and the Klipp, Colussy, Jenks and DuBois study were distributed to members of the Commission. Mr. Stitt briefly summarized the information which was distributed, pointing out that Cinderella City and the downtown area are two of the most critical problems facing the City. Mr. Stitt emphasized that the document from Klipp etc. is a "draft" document at this point in time. There is a need to gain input from a broad segment of the community before proceeding on this study, and this is one step in that process. Mr. Merkel stated that staff will ask for input from those in attendance at the session on Janu- ary 8. Mr. Merkel stated that this session had been proposed some time ago, but the determi- nation was made to wait until after the first of the year to avoid impacting holiday sales at the Mall. Ms. Tobin stated that four days is too short notice, and she has plans to be out-of-town on Sat- urday. Mr. Clemens and Mr. Shoop both indicated they will plan to be in attendance. Mr. Covens commented that he understands Joslins wants to stay in Cinderella City, but that if other anchors leave, it is a question whether they can do so. Ms. Tobin stated that she was told by four of Penney's personnel that they have been given notice to vacate mid-summer. Discussion ensued. Mr. Merkel stated that the Saturday session will be video-taped. VII. COMMISSIONER'S CHOICE. Mr. Covens stated that he hoped in 1994, the Planning Commission could do "planning", and be more than just a "zoning commission". He asked what was on the agenda for January 18. 8 ( There was nothing further brought before the Commission for discussion, and the meeting was declared adjourned. Gertrude G. Welty, Recording Seer 9