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Home My WebLink About1993-12-21 PZC MINUTESCITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION December 21, 1993 I. CALL TO ORDER. The regular meeting of the City Planning & Zoning Commission was called to order by Chairman Covens at 7:00 P. M. in Conference Room B of the Englewood City Hall. Members present: Shoop, Tobin, Clemens, Dummer, Garrett, Gerlick, Mason, Covens Merkel, Ex-officio Members absent: None Also present: Harold J. Stitt, Planning Administrator Dan Brotzman, Assistant City Attorney Pam Pepper, Economic Development Administrator II. APPROVAL OF l\11NUTES. December 7, 1993 Chairman Covens stated that the Minutes of December 7, 1993 were to be considered for ap- proval. Garrett moved: Clemens seconded: The Minutes of December 7, 1993 be approved as written. AYES: NAYS: ABSENT: ABSTAIN: Tobin, Clemens, Dummer, Garrett, Gerlick, Mason, Shoop None None Covens The motion carried. ID. FINDINGS OF FACT Walgreen Planned Development CASE #13-93 Mr. Merkel reported that the City Council approved the Walgreen Planned Development unanimously . at their meeting of December 20, 1993; no Public Hearing was scheduled before Council on this issue. The applicants were in attendance, indicated they will begin construc- tion within six weeks, and hope to have the store open by Fall, 1994. Shoop moved: Clemens seconded: The Findings of Fact for Case #13-93 be approved as written. AYES: NAYS: Clemens, Dummer, Garrett, Gerlick, Mason, Shoop, Tobin, Covens None ABSENT: None ABSTAIN: None The motion carried. IV. COMPREHENSIVE ZONING ORDINANCE Adult Businesses CASE #5-93 Mr. Covens stated that the Public Hearing on the amendment of the Comprehensive Zoning Ordinance to address adult businesses has been scheduled for January 4, 1994. Mr. Covens asked Mr. Stitt to lead the discussion on the proposed amendments. Mr. Stitt stated that the primary amendments are to address the results of the Court decision which found the Conditional Use requirements for approval of adult entertainment/service uses to be unconstitutional. The City Attorney's staff and the Community Development staff have discussed this issue, and it has been discussed with the Commission previously; the proposal is that adult entertainment and/or service facilities shall become a "permitted use" in the B-2, Business, I-1, Light Industrial, and I-2, General Industrial Zone Districts. The distance fac- tors of 500 feet from residential district boundary lines, and 1,000 feet from the location of any other adult entertainment or service facility shall remain in effect. All restrictions which were imposed on the adult entertainment/service facilities as Conditional Uses will now be im- posed on the adult entertainment/service facilities as "Permitted Uses". Mr. Stitt stated that the distance restrictions have been upheld by Courts, and this restriction was not part of the challenge to the Englewood Ordinance. Mr. Garrett inquired whether Santa Fe Books and Videos met the distance criteria. Mr. Stitt stated that this business does meet the distance criteria, and did at the time they instituted the Court suit; their contention was the Conditional Use provisions compromised their First Amendment Rights, and the Court held in their favor. Mr. Stitt further discussed means to control adult entertainment/service facilities; traditionally this has been done by way of distance factors, as is done in the Englewood ordinance, or by congregating such uses in one area, commonly called a "combat zone" approach. Mr. Stitt stated that the most that can be done is to control and regulate the impact of secondary effects of these uses. Mr. Stitt discussed a session he attended at the Colorado Municipal League meeting in June , which addressed the issue of adult uses. It was emphasized at this meeting that licensing provisions can be very effective in regulating adult uses. The issue of whether the Ordinance is being written to basically eliminate any area where adult uses might locate was raised by Economic Development Administrator Pepper. Mr. Stitt 2 l stated that Courts have decreed that land areas where adult uses may locate may be as little as 5%, or range from 10% to 20%. Mr. Brotzman pointed out that each State has varying stan- dards. Mr. Covens inquired about the rationale of 1,000 feet vs. the 500 feet; why not require 1,000 feet between the adult use and the residential district boundary line. Mr. Stitt pointed out that the 500 and 1,000 foot limitations as previously cited have been upheld by the Courts; furthermore, the 1, 000 foot distance between an adult use and a residential zone boundary in Englewood would limit, quite severely, the areas where the adult uses could locate. Mr. Covens asked where adult uses could be permitted. Mr. Stitt suggested that the industrial areas provide several locations where adult uses could go in. He noted that while the majority of adult entertainment/service facilities usually prefer a heavily trafficked thoroughfare, there are people who will frequent this type of business no matter where it is located. Mr. Stitt stated that the Englewood licensing provisions were also struck down by the Court in the Santa Fe Books and Video case, and he does not know what the Attorney's Office is doing to address this issue. Mr. Brotzman commented that, again, the Courts did not like the "Hearing" process which was required of adult uses. Mr. Stitt then addressed the issue of Adult Bookstore definitions. Three alternatives have been presented by the City Attorney's office. The first definition cited is the current definition in the Ordinance; the second definition cites 10% of gross public square footage; the third defini- tion is that which was recently adopted by the City of Littleton, and has not been tested in Colorado courts. Discussion ensued. Mr. Stitt suggested that the Commission needs to de- termine which definition they feel they can support. Mr. Covens asked Ms. Pepper what reports and feedback ·she has had on Santa Fe Books and Videos. Ms. Pepper stated that she hasn't spoken to Chief Stanley regarding police complaints on this outlet, and that revenues from individual businesses are not monitored. Mr. Merkel stated that the majority of the complaints he is aware of pertain to the "existence" of the outlet, not secondary effects. Mr. Covens asked Ms. Pepper to discuss the issue with Newsland. Ms. Pepper stated that she was approached approximately one and one-half years ago by Mr. Heasty, inquiring about the possibility of locating a Newsland at Trolley Square. Ms. Pepper stated that this business has outlets in Lakewood, Westminster, and in Aurora. Newsland is a low profit-margin business, and relies on revenues from the sales of the adult materials. This is the reason the 10 % of the gross revenue restriction contained in the current definition is too restrictive for News/and. The business is not, however, an "adult" business in that the majority of their stock (newspapers, magazines, periodicals, etc.) is not "adult" material. Ms. Pepper further sug- gested that the "gross income" restriction is vague --is it gross "annual" income, or gross "monthly" income? This needs to be clarified if the Commission determines to continue with the gross revenue restriction. Mr. Heasty appears to be very serious about wanting to locate an outlet somewhere on South Broadway, and has had discussions with prospective purchasers of Trolley Square about leasing the bottom level for such an outlet. The typical Newslan.d outlet is 6,000 to 8,000 square feet, and the areas for adult materials are typically 5 % to 8 % of that square footage. Mr. Heasty has indicated to Ms. Pepper that he would be comfortable 3 with something less than the IO% figure which is proposed in the Draft Ordinance prepared by the City Attorney's Office. Ms. Pepper stated that Newsland wants to locate on a heavily traveled street, and wants to know up-front what the community's criteria is that they have to comply with. Ms. Pepper emphasized that Newsland is not asking for special treatment or rules, but does want the rules clear up-front. Ms. Pepper stated that if the Commission and Council determine that the Ordinance should not be changed, Mr. Heasty will look further south to locate an outlet, and wouldn't consider Englewood for future outlets. Ms. Pepper commented that in her opinion, proposed Definition #3 is too restrictive. Mr. Brotzman agreed that #3 says "nothing is exempt". Enforcement procedures were discussed. Mr. Brotzman pointed out that if the Commission and Council decide to adhere to the present restriction of not more than IO% of the gross sales, this will require enforcement assistance from the sales tax auditors. Mr. Brotzman fur- ther pointed out that Englewood was one of the first municipalities to adopt restrictions on adult businesses because of a need to clean up some of the outlets on South Broadway. The Englewood adult business ordinance was adopted in 1981. Further discussion on enforcement procedures and problems ensued. The question was raised concerning videos that are rented and sold by outlets such as Blockbusters; do the sales tax auditors analyze revenues from adult materials in ratio to revenues from other materials. Is this procedure, in fact, done on book- stores such as Waldens, where some adult material is available, but is not on public display. Mr. Merkel suggested that if the City isn't able to enforce the present restrictions, a change in the definition to a percentage of gross public square footage would be easier to enforce. Mr. Stitt questioned that the City "can't" enforce the present restriction; it is his contention that the City has "chosen not to enforce" the existing restriction. Mr. Merkel stated that, in his opinion, the offensiveness of an adult use is the display of materials where children or others who may be offended can readily see the materials. Mr. Covens suggested that if a use were to locate in Trolley Square, with adult materials available, this could possibly offend some of the elderly citizens from Simon Center and Orchard Place who enjoy walking downtown and browsing through bookstores and other outlets. Discussion ensued. The need for the adult materials to be segregated into a clearly marked area in an outlet was discussed at length. Mr. Merkel suggested that the store clerk would want to make sure someone didn't wander into the restricted area by mistake and be offended. Ms. Tobin commented that the change from IO% of the gross sales to IO% of the square foot- age seems more logical, and would lend itself to easier enforcement. Ms. Tobin further com- mented that there is a large number of very religious citizens who reside in Englewood, and a large number of elderly citizens; however, there are also young people and young families, and the needs of all citizenry must addressed. Ms. Pepper emphasized that News/and is not looking for special treatment or rules; they want something that "everyone in Englewood can live with." 4 Mr. Merkel suggested that Definition #2 might be reworded to read: "A place where books , magazines, motion pictures, 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 or offered for sale to adults 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, except that any place, otherwise included within this definition, that DEDICATES not more than 10% of its gross public square footage TO the sale of such mate- rial shall be exempt from the provisions of this Title so long as such material is kept in a loca- tion WHERE PUBLIC ACCESS IS CONTROLLED AND it is not visible TO GENERAL CIRCULATION OF CLIENTELE IN THE STORE." Mr. Brotzman inquired whether the items should be "self-service", or whether the clerks must get them for the customer. Ms. Pepper noted that News/and would have to have permitted ac- cess by the clientele to the adult materials. Mr. Garrett suggested that the measurement should be linear foot rather than square footage. The linear foot measurement would address the amount of shelf space available for adult ma- terials. Discussion ensued. The square foot percentage was further discussed. Mr. Stitt commented that in his opinion , 10% is high. Mr. Stitt further cited what he feels is a "loophole" in the definition , in that 10 % of the gross floor area could be devoted to adult materials, but the remaining 90 % of the space could be very sparsely stocked, or stocked with some product not necessarily related to the adult materials or "bookstore" intent. Thus, the "adult use" would be the primary source of income from this business, but it would not be classified as an "adult use" because of the gross floor area percentages. Discussion ensued. Mr. Clemens asked what basis was used for the 10% figure. Ms. Pepper stated that it is her understanding City Attorney DeWitt sug- gested the 10 % figure. Mr. Dummer suggested that a definition be written that would encompass EITHER 10% of the gross sales, OR 10% of the gross public square footage. Discussion ensued on this suggestion. Mr. Clemens stated he liked the either/or concept. Mr. Brotzman asked if the Commission wanted to consider raising the percentage allowed on gross sales to, say 15 % , and lower the percentage on gross public square footage to maybe 5 % . Mr. Merkel expressed his opposition to the gross sales restriction. Mr. Merkel suggested the need to determine the "intent" of the Planning Commission, and leave the nuts and bolts of writing the definition to Assistant City Attorney Brotzman. Mr. Covens diagrammed the issues under consideration, and asked for a show of hands in sup- port of the various facets of the discussion. Proposed Definition #3 was considered. Mr. Shoop indicated his support for this definition. 5 Definition #2 was considered; the percentage was discussed. Five members indicated they were in favor of something less than the 10% figure. Three members indicated support of the maximum 10 % figure. There was no support for the gross sales provision; however, Mr. Dummer still advocated us- ing the "either/or" approach. The percentage figure for Definition #2 was further considered. Six members supported 8 % ; one person support 5 % or less; one person supported 9 % or more. The distinction of retail floor space, gross public floor space, display floor space, net public floor space, net retail space, was considered and debated. The compromise that Mr. Brotzman will have to work with is that of Definition #Z, 8 % of the display area, there must be controlled access, and the materials may not be visible to general circulation of clientele. Brief discussion ensued. Mr. Dummer commented that the ordinance must be "community oriented", and not "News/and oriented". Mr. Brotzman stated that the legal office will make the revisions and have them ready for the Public Hearing on January 4, 1994. V. PUBLIC FORUM. There was no one present to address the Commission. VI. DIRECTOR'S CHOICE. Mr. Merkel wished everyone a Merry Christmas. VII. COMMISSIONER'S CHOICE. Mr. Garrett noted that at the meeting of December 7th, the staff report for the Walgreen Planned Development, as written, suggested withholding approval until all issues raised in the Technical Review Committee had been addressed. However, at the meeting new plans were presented, the issues were addressed, and the staff recommendation was to approve the Planned Development at that time. He inquired whether this occurs often. Ms. Tobin ex- pressed her opinion that it does happen frequently. Mr. Stitt explained the process that the staff pursues in trying to work with the applicants, noting that a number of the businesses are on the "fast track", and want to get things going be- fore the Commission while they are still addressing final details of the plans. A notable in- stance has been Swedish Medical Center, and to an extent, the South Suburban Parks & Rec- reation District; these two applicants wanted to "fast track" the process, but their consultants 6 did not get the required correct information to the staff prior to the writing of the staff report. Mr. Stitt emphasized that staff does try to cooperate with applicants to every extent possible, and this does sometimes necessitate a change in procedure after staff reports have been written and delivered to Commissioners. Mr. Covens inquired about the South Suburban Parks & Recreation District Planned Develop- ment. Mr. Merkel stated that it was approved by City Council. Mr. Shoop inquired about progress on relocation of the Englewood Depot. Mr. Stitt stated that the rezoning was approved. Mr. Merkel stated that they will begin moving dirt very shortly. The meeting was declared adjourned at 8:45 P. M. . .• / Gertrude G. Welty, Recording Seen~ 7 RESOLUTION NO. 4 SERIES OF 1993 A RESOLUTION REAPPOINTING THOMAS GERLICK TO THE PLANNING AND ZONING COMMISSION FOR THE CITY OF ENGLEWOOD, COLORADO WHEREAS, Thomas G€rlick is a current member of the Englewood Planning and Zoning Commission; and WHEREAS, Thomas Gerlick's current term expires February 1, 1993; and WHEREAS , Thomas G€rlick has applied for reinstatement to the Englewood Planning and Zoning Commission; and WHEREAS, the Englewood City Council has reappointed Thomas G€rlick to the Englewood Planning and Zoning Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. Thomas Gerlick is hereby reappointed to the Englewood Planning and Zoning Commission . Thomas Gerlick's term will be effective from February 1, 1993 and will expire February 1, 1997. ADOPTED AND APPROVED this 1st day of February, 1993. ATTEST: Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No . lf· Series of 1993 . ah~A i/flHU Patricia H. Crow llm RESOLUTION NO. ff SERIES OF 1993 A RESOLUTION APPOINTING ROBERT MASON TO THE PLANNING AND ZONING COMMISSION FOR THE CITY OF ENGLEWOOD, COLORADO WHEREAS, there is a vacancy in the Englewood Planning and Zoning Commission; and WHEREAS, Robert Mason has applied to serve as a member of the Englewood Planning and Zoning Commission; and WHEREAS, the Englewood City Council has appointed Robert Mason to the Englewood Planning and Zoning Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. Robert Mason is hereby appointed to the Englewood Planning and Zoning Commission . Robert Mason's term will be effective immediately and will expire February 1, 1996. ADOPTED AND APPROVED this 1st day of February, 1993. ATTEST: ~4 ,uil?Ufi/ Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. 1£, Series of 1993. ~~tff{j~ Patricia H. Crow 11 n RESOLUTION NO. i!1 SERIES OF 1993 A RESOLUTION APPOINTING DOUG GARRETT TO THE PLANNING AND ZONING COMMISSION FOR THE CITY OF ENGLEWOOD, COLORADO WHEREAS, there is a vacancy in the Englewood Planning and Zoning Commission; and WHEREAS, Doug Garrett has applied to serve as a member of the Englewood Planning and Zoning Commission; and WHEREAS, the Englewood City Council has appointed Doug Garrett to the Englewood Planning and Zoning Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO , THAT : Section 1. Doug Garrett is hereby appointed to the Englewood Planning and Zoning Commission. Doug Garrett's term will be effective from February 1, 1993 and will expire February 1, 1997. ADOPTED AND APPROVED this 1st day of February, 1993 . ATTEST : ~~J/&~ Patricia H. Crow , City Clerk I, Patricia H. Crow, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. !.:J.· Series of 1993. ~<!,we~ Patricia H. Crow 11 0 RESOLUTION NO.~ SERIES OF 1993 A RESOLUTION APPOINTING LINDA DOYLE CUESTA TO THE PLANNING AND ZONING COMMISSION FOR THE CITY OF ENGLEWOOD, COLORADO WHEREAS, there is a vacancy in the Englewood Planning and Zoning Commission; and WHEREAS, Linda Doyle Cuesta has applied to serve as a member of the Englewood Planning and Zoning Commission; and WHEREAS, the Englewood City Council has appointed Linda Doyle Cuesta to the Englewood Planning and Zoning Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. Linda Doyle Cuesta is hereby appointed to the Englewood Planning and Zoning Commission. Linda Doyle Cuesta's term will be effective from February 1, 1993 and will expire February 1, 1996. ADOPTED AND APPROVED this 16th day of February, 1993. C .Oo E. /._ ' ~ c°itae E. Wiggi~ ATTEST: Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution N o.:J:f Series of 1993. ~(~~~ Patricia H. Crow 8 c RESOLUTION NO. fRA_ SERIES OF 1993 A RESOLUTION APPOINTING DAN CLEMENS TO THE PLANNING AND ZONING COMMISSION FOR THE CITY OF ENGLEWOOD, COLORADO WHEREAS, there is a vacancy in the Englewood Planning and Zoning Commission; and WHEREAS, Dan Clemens has applied to serve as a member of the Englewood Planning and Zoning Commission; and WHEREAS, the Englewood City Council desires to appoint Dan Clemens to the Englewood Planning and Zoning Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. Dan Clemens is hereby appointed to the Englewood Planning and Zoning Commission effective immediately and expiring February 1, 1996 . ADOPTED AND APPROVED this 6th day of July, 1993. ATTEST : Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk for jl;,e City of Englewood, Colorado, hereby certify - 8 j the above is a true copy of Resolution No. (RASeries of 199~~.w ~ Patricia H. Crow RESOLUTION NO. bl_ SERIES OF 1993 A RESOLUTION APPOINTING MIKE BLEAU TO THE PLANNING AND ZONING COMMISSION FOR THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, there is a vacancy on the Englewood Planning and Zoning Commission; and WHEREAS, Mike Bleau has applied for an appointment to the Englewood Planning and Zoning Commission; and WHEREAS, the Englewood City Council has appointed Mike Bleau to the Englewood Planning and Zoning Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. Mike Bleau is hereby appointed to the Englewood Planning and Zoning Commission. Mike Bleau's term will be effective from July 19, 1993 and will expire February 1, 1995. ADOPTED AND APPROVED this 19th day of July, 1993. ATTEST: WdumvuY.~ Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. {dl , Series of 1993. 8 b (;;i}:t~c&. < ~ ~ Patricia H. Crow 8 a J·anuary 11, 1993 Mayor Clyde Wiggins City Hall J400 S. E lati Englewood, CO 80110 Dear Mayor Wiggins: It is with regret that I am writing this letter to resign my position as commissioner of the Planning and Zoning Committee. I have moved to the City of Littleton as of last month. I thank you for the opportunity to serve and enjoyed my short tenure very much. That was my fir~t experience in serving my city in that manner and I learned a great deal. I hope to again serve in some capacity in the future. Sincerely, _.,Jrr t ./(Y'J Mimi Leonard f~--~-~ 1~~~--1J1~:3 j~ CIT Y rAM~r\'..J~~ s Orr1 L-E El' GLC.V/000 . CO