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HomeMy WebLinkAbout1981-12-08 PZC MINUTESCITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION December 8, 1981 I. CALL TO ORDER. 5 A The regular meeting of the City Planning and Zoning Commission was called to order at 7:00 P. M. by Chairman Judith B. Pierson. Members present: McBrayer, Pierson, Senti, Tanguma, Allen, Barbre, Becker, Carson, Draper Powers, Ex-officio Members absent: None Also present: Assistant Director Dorothy A. Romans Assistant City Attorney Thomas V. Holland Senior Planner Susan King II. APPROVAL OF MINUTES. Chairman Pierson stated that the Minutes of November 4, 1981, and of November 17, 1981, were to be considered for approval. Carson moved: Tanguma seconded: The Minutes of the meeting of November 4, 1981, be approved as written. Ayes: Senti, Tanguma, Allen, Barbre, Becker, Carson, Draper, McBrayer, Pierson NAYS: None The motion carried. Barbre moved: Carson seconded: The Minutes of the meeting of November 17, 1981, be approved as written. AYES: Barbre, Becker, Carson, Draper, Pierson, Senti, Tanguma NAYS: None ABSTAIN: McBrayer, Allen The motion carried. Mrs. Pierson stated that inasmuch as the Public Hearing is likely to be quite lengthy, and there is another item on the agenda that will probably not take much time, she asked for a motion to consider Item #4 at this time. Carson moved: Tanguma seconded: That Case #12-81 be advanced on the agenda and considered at this time. AYES: Becker, Carson, Draper, McBrayer, Pierson, Senti, Tanguma, Allen, Barbre. NAYS: None The motion carried. III. OFF-STREET PARKING PLAN T. W. Anderson -2- Mrs. Pierson asked for the staff report on this case. CASE #12-81 Senior Planner Susan King stated that the request before the Commission is for approval of an off-street parking plan, which plan contains 113 parking spaces. Mr. T. W. Anderson has proposed the construction of an office building on property described as Lots 6 -25 of Block 6, Englewood. This is a 1-1/3 acre site, which is bounded by South Inca Street on the east, West Ithaca Avenue on the south, and South Jason Street on the west. The site is zoned I-1, Light Industrial. The proposed office building is a permitted use in the I-1 Zone District. Ms. King stated that the Planning Commission considered a request to vacate the alley in Block 6, Englewood, in 1968; the Commission recommended the vacation of the alley to City Council, and also recommended that a 16 foot utility easement be retained. The City Council considered the request for alley vacation in this block in 1973, and did approve .the vacation; however, no ~ention was made of re- taining an easement for utilities. The Master Street Plan proposes a one- way couplet on West Ithaca Avenue/U.S. 285 between South Santa Fe Drive and South Broadway. If this couplet is actually developed, it will help alleviate the traffic congestion on U.S. 285, but may interfere with the use of a portion of the property proposed for development by Mr. Anderson. Ms. King then reviewed comments from other departments regarding the off- street parking plan proposal; the developer must replace all broken and/or cracked curb, gutter and sidewalk adjacent to the project prior to the certificate of occupancy being issued; unused curb cuts must be closed; the Utilities Department requests a 16 ft. utility easement to permit access to facilities located in this area. If relocation of any utilities is required, it would have to be upon approval of the Utility Division, and at the expense of the developer. The Parks and Recreation Department has also submitted some suggestions for plantings of trees and shrubs in the grassed areas shown on the parking plan. The Community Development Department does recommend approval of the off- street parking plan with the following conditions: 1. Landscaping shall be provided and maintained. 2. An easement for utility service shall be provided as required by the Utilities Department. 3. All curb, gutter and sidewalks shall be repaired prior to issuance of a Certificate of Occupancy. 4. The base course and asphalt for the parking area shall be approved by the Engineering Services Department. Mr. McBrayer inquired about a drainage plan for this site? Ms. King stated that a drainage plan has been submitted and reviewed by the Eng i neering Services Department; no problems were noted with the drainage proposal. Mr. Allen asked if there are curb, gutter and sidewalks in place at the present time? Ms. King stated there is; however, some of the existing curb cuts will have to be closed. Mr. T. W. Anderson, applicant, stated that he has done development in Englewood for many years. He asked if the Commission had any questions of him regarding this proposal? -3- Mr. McBrayer stated that one of the recommendations of the staff is on the landscaping; would Mr. Anderson be willing to install a sprinkling system to see that the landscaping is maintained, and would he agree to the planting of trees and shrubs as suggested by the Parks and Recreation Department? Mr. Anderson stated that he would agree to the sprinkling system installation, and to the planting of trees and shrubs in the land- scaping areas. Mr. McBrayer asked if the proposed one-way couplet on U.S. 285 and West Ithaca Avenue would interfere with the construction of the office building as proposed by Mr. Anderson? Mr. Anderson stated that he would be in favor of the development of the one-way couplet; he stated that they have pro- posed the location of the building so that any interference from the couplet would be minimal. Ms. Pierson asked if there was further discussion on this proposal? Allen moved: Carson seconded: The Planning Commission approve the Off-street Parking Plan proposed for Lots 6 -25, Block 6, Englewood, dated 8/26/81, revised 11/12/81, with the following conditions: 1. Landscaping shall be provided and maintained. 2. An easement for utility service shall be provided as required by the Utilities Department. 3. All curb, gutter and sidewalks shall be repaired prior to issuance of a Certificate· of Occupancy. 4. The base course and asphalt for the parking area shall be approved by the Engineering Services De- partment. Mrs. Pierson asked if Mr. Allen wished to include requirement of an auto- matic sprinkling system to facilitate maintenance of the landscaping? Mr. Allen stated that he did not; inasmuch as there is no City ordinance re- quiring installation of an automatic sprinkling system, he felt this was outside the scope of responsibility for the Planning Commission. Ms. Becker noted that not every developer will maintain the landscaping once it has been planted. The applicant has agreed that the installation of an automatic sprinkling system is acceptable to him. Becker moved: McBrayer seconded: The motion be amended to require the installation of an automatic sprinkling system to maintain the land- scaping. AYES: McBrayer, Pierson, Senti, Barbre, Becker, Carson NAYS: Draper, Tanguma, Allen The motion carried. The vote on the motion, as amended, was called: AYES: Carson, Draper, McBrayer, Pierson, Senti, Tanguma, Allen, Barbre, Becker NAYS: None l'he motto~ carried. -4- IV. NONCONFORMING USE TIME EXTENSION Adult Center 4370 South Broadway Carson moved: CAS E #16-81 Becker seconded: The Public Hearing on Case #16-81 be opened. AYES: Tanguma, Allen, Barbre, Becker, Carson, Draper, Mc Bray er, Pie rs on, Senti. NAYS: None The motion carried. Ms. Pierson stated that the purpose of the Public Hearing is t o consider a request filed by Rocky Mountain Acquisitions asking for a 180 day ex- tension of time to operate their nonconforming adult entertainme nt use at 4370 South Broadway. Ms. Pierson reviewed matters that woul d be c on- sidered by the Connnission in determining whether ther e is a s ubs t a n t i al and unnecessary hardship placed on the applicant by the r e quiremen t t hat he relocate his business; these factors include whether t h ere c a n be a reasonable return were the property to be used for a permit ted us e ; whether there are unique circumstances in the particular c a se; the i m- pact of the variant use on the neighborhood; protection of public and private interests; the essential character of the n eighborhood, and whether or not the hardship is self-created. Assistant City Attorney Holland discussed the amen dment of the Comprehen- sive Zoning Ordinance, which became effect i ve on June 3, 1981, which ame n d - ment controls the location of adult entertainment/adult service establish- ments. This amendment restricts the location of an a dult entertainment - service use within 1,000 feet of another such est ab lishment, or within 500 feet of a residential district, or public or quas i-public uses. Mr . Holland stated that this use is in violation o f the a mendment enacted on June 3, 1981, and was to have terminated operation of the business in its present location within 180 days of the enactmen t o f the zoning amendment. The request before the Connnission i s a request by the applicant for an 180 day exte~hion to operate the business at its present location at 4370 South Broad:rY· Ms. Kay Rice, legal· counsel for Mr. Michael Decka r d, addressed the Connnission, and asked that Mr. Michael Deckard be allowed t o address the Commission. Mr. Deckard was sworn in, and testified that he was requesting an ex- tension of time to operate the Adult Center at 43 70 South Broadway. Mr. Deckard stated that he was not waiving his righ t t o challenge the zoning law or the amortization features contained within that law. He stated that his attorney has advised him that the law i s unconstitutional, and violates his right of speech. Mr. Deckard stated that he feels this zoning law is directed solely at the Adult Ce nt er , and does not reflect the view of citizens of Englewood. Mr. Deckard t e stified that the Adult Center was opened at 4370 South Broadway on or a b out December 1, 1980, following their obtaining of the required permits, licenses, etc. re- quired by the City of Englewood. Mr. Deckard s tate d that there was no zoning law in effect in Englewood at that time which governed the location or restriction of adult businesses. • -5- Mr. Deckard testified, upon questioning by Ms. Rice, that the Adult Center was cited for a violation of a dancing ordinance, which was dismissed in court; they were also cited on a public display ordinance, which citation was also thrown out. Mr. Deckard charged that these two citations were means of harassment of the business, and that the Englewood court deter- mined the citations should be thrown out. Mr. Deckard then testified as to the investment Rocky Mountain Acquisitions, Inc., has made in the Adult Center. Their total investment, including con- struction costs, equipment and fixture costs, and inventory comes to $54,480. Mr. Deckard stated that they feel the business is worth two and one-half times the initial investment, making the worth of the business $136,200 at the present time. Mr. Deckard testified that this $136,200 worth cannot be recouped within 180 days, and that most of this investment would be lost if they were forced to relocate at the present time. Mr. Deckard stated that he has looked for another location, and has engaged a realtor to look for another location for this use, but so far the search has been unsuccessful. Mr. Deckard estimated that the business would have to be closed for "months." Mr. Deckard was cross-examined by Assistant City Attorney Holland, which cross-examination elicited information on the operation of the Adult Center, and the activities that occur in the Adult Center. Mr. Deckard testified that he did not have information regarding income from the Adult Center. He did testify that the monthly rental of this property was in the vicinity of $900 per month; that he had negotiated the rental contract with the property owner, and had offered to the property owner $800 per month with a cost of living increase every three months. The term of the lease is for six-years, and Mr. Deckard testified that he knew of no provisions for breaking the lease if it was necessary to relocate the business. Testimony was also elicited from Chief Building Inspector Gary Pittman regarding construction within the Adult Center, inspections made on the work done in the Adult Center, and the fact that the initial building permit application was received on November 24, 1980, in response to a "stop work" notice issued to the contractor engaged in work without a permit at 4370 South Broadway. Mr. Pittman testified that evaluation of the improvements as listed on the building permit applications and electrical permit applications totals $1,151, which figure would include all interior walls, partitions, paneling and the portable booths. Mr. Pittman testified that the applicant had applied for a building permit on April 23, 1981, for additional remodeling of the Adult Center; this proposal included additional booths, two storage areas, remodeling of the bathrooms, and other additional booths and passageways. Mr. Pittman testified that Building Inspector Gene Macrander had inspected the Adult Center on May 15, 1981, and deter- mined that there was a deviation in what was constructed from what was presented in the plans; that an area which had been proposed as a storage area was, in fact, being used as a stage or display area for models. Upon questioning by Mr. Allen, Mr. Pittman testified that the total valuation involved in all permit applications issued for the Adult Center is $5,898. Mr. Holland elicited testimony from Mrs. Dorothy Romans, Assistant Director of Community Development. Mrs. Romans testified as to the zoning designa- tions along South Broadway and in the immediate area of 4370 South Broadway. Mrs. Romans testified that zone district boundaries break on the alley, with R-2, Medium-Density Residence along both sides of South Lincoln Street in the 4300 block south, and R-2, Medium-Density Residence zoning along • -6- both sides of South Acoma Street in the 4300 block south. Mrs. Romans also testified that there is a mixture of uses within the subject b l ock, citing specific uses at given addresses. Mrs. Romans test i fied t hat there are 106 permitted uses listed in the B-1 Zone District, which uses are permitted in the B-2 Zone District, which is applied to the prope rty at 4370 South Broadway. The B-2 Zone District also permits an addit i onal 12 or so uses, which would give in excess of 115 permitte d uses f or which this property could be used. Mrs. Romans characterized t he e xis ting uses . in the 4300 block as small, service-oriented businesses that serve t h e residential neighborhood. Mrs. Romans testified that it i s her op inion the Adult Center was not compatible with the neighborhood, and t h at p er- mitting adult uses within the City of Englewood was not cons is tent and compatible with the type of community that Englewood is. Ms. Rice cross-examined Mrs. Romans, questioning the basis for Mrs . Romans' opinion that the Adult Center is not compatible with the neighborh ood. Mrs. Romans stated that concerns have been expressed to her r e garding the type of litter that has been found within the area since the Adult Center opened; also, that concerns have been expressed because customers at the Adult Center have used off-street parking provided by other b u s i nesses for their customers. Upon questioning by Ms. Rice, Mrs. Romans ma de re f erence to a map depicting areas where adult uses would be permitted in the City of Englewood, pointing out that some 700 acres would be invo lved, whi ch is roughly 15% of the area of the City. Ms. Pierson declared a recess of the Commission at 9 :10 P .M. The meeting was reconvened at 9:30 P.M., with the f o l lowing members p r esent: McBrayer, Pierson, Tanguma, Allen, Barbre, Becker , Carson, and Draper . Absent was Commission Member Senti. Chairman Pierson stated that the Commission would hear statements from members of the audience who wished to address the Commission. Reverend Paul Restivo, 4510 South Acoma, was sworn in , and testified in opposition to the requested time extension. Reverend Restivo testified that there has been an increase in prowlers, peep i ng toms, and girls being approached on the street by customers coming out of the Adult Center since the opening of this business. Reverend Res tivo testified that his daughter was one of the young girls approached by a man wh o had been in the Adult Center. Reverend Restivo testified t h at t his neighborhood is populated with young people, young children; it is c lose to the school, and the Adult Center is right across the alley f rom a church. He stated that he does not feel that the Adult Center is compat ible with the other uses in the area, or with the neighborhood. Mr. Donald L. R. Smith, 3165 South Sherman Street , wa s sw orn in, and testified that he is a former City Councilman, former Planning Commission member, and had served on the public safety comm ission for the National League of Cities concerning adult entertainment/s ervice uses. Mr. Smith testified in opposition to the request for time e xte nsion . Mr. Smith pointed out that remodeling was done on the Adult Ce nter after Mr. Deckard and Rocky Mountain Acquisitions were aware of t he moratorium imposed by the City of Englewood on adult entertainment/servi c e facilities. Mr. Smith cited the fact that financial information on t he income of the business was never brought forward, and that Mr. Dec kard "didn't know a lot about the business", even though he purport ed t o be the general • -7- manager. Mr. Smith stated that time-dated material, to which Mr. Deckard had referred, can be returned, and is not a loss as indicated by Mr. Deckard. Mr. Smith stated that a new business is not worth two and a half times the original investment; only a proven business which is moved from one location to another may be considered to be worth that. Mr. Smith stated that he did not feel Mr. Deckard had proven the hardship he is pleading. Ms. Rice questioned Mr. Smith regarding his statement that he could move a business "over a weekend". Mr. Adrian House was sworn in, and testified that he is pastor of the First Christian Church in Englewood. Mr. House testified in opposition to the requested time extension for the Adult Center. Mr. House stated that he represented a congregation of approximately 1,200 people, most of whom are Englewood residents, and are in opposition to the Adult Center. Mr. Louis Lamberson, 4707 South Delaware, was sworn in, and testified in opposition to the requested time extension for the Adult Center. Mr. David Meschke was sworn in; he stated that while he is the City of Littleton, he offices at 3311 South Broadway. testified in opposition to the time extension requested by Center at 4370 South Broadway. a resident of Mr. Meschke the Adult Mr. Zane Prante, 3168, South Cherokee Street, was sworn in, and testified in opposition to the requested time extension of the Adult Center. Mr. Dale Adamson, 4060 South Pennsylvania Street, was sworn in, and testified in opposition to the requested time extension of the Adult Center. Mr. Adamson testified that he had talked to the landlord of the property at 4370 South Broadway, and that Mr. Schear, the property owner, had stated to him that the "adult center" was not what was represented to him as the proposed business when the lease was signed by Mr. Deckard. Ms. Susan Powers, Director of Community Development, was sworn in. Ms. Powers read several Goals from the 1979 Comprehensive Plan into the record, which were not consistent with the operation of the Adult Center at that location. Ms. Powers also cited a statement contained in a survey done by the Planning Division on the impact of commercial districts on the residential neighborhoods throughout the City of Englewood. One paragraph pertained to this particular site, which paragraph is as follows: "Persons operating businesses near the bookstore had indicated the strongest dis- like for the establishment. They felt the store would attract a less savory clientele, and many thought their customers would be less willing to come to the area to shop. Again, no one had experienced any direct adverse effects from the bookstore, but the attitude it generated could have an impact on the future of the area. The feelings of the business people near the store were quite strong that if nothing had happened yet, it will eventually. It was apparent that this fear of the possibility of crime, deterioration and loss of business could easily influence the owners future decisions about their businesses, and in fact, lead to the deterioration that they feel will result. Decisions to renovate or expand their businesses may be put off because they feel that the neighborhood is going downhill, and it would not be wise to invest their money there. The result could be that the businesses would leave the area, or the buildings would be allowed to run down." • -8- Ms. Powers further testified that the City is in the midst of a redevelop- ment program for the downtown business district, and a revitalization ef- fort for the entire City; she stated that professionally, she did not feel that businesses such as the Adult Center support the Goals of the City and detract from the revitalization efforts. Ms. Powers emphasized that when the staff did the survey, no questions were asked pertaining to any specific business, and that while 10% of the respondents did mention the bookstore at 4370 South Broadway, this was not in 'response to a question asked by the staff. These persons who specifically mentioned problems with 4370 South Broadway did so of their own volition. Mr. Mike Haviland, 2104 East Dartmouth Circle, was sworn in, and testified that he is the Executive Director of the Englewood Downtown Development Authority. Mr. Haviland outlined his previous employment experience, and testified that the physical structure at 4370 South Broadway is compatible with other business buildings in the area, and that in his opinion, this building could support a use similar to other businesses surrounding it. Mr. Haviland testified that in his professional experience, he would say that the Adult Center was not compatible with the neighborhood, and that it is a deterrent, generally, not only to the Comprehensive Plan, but to the general direction in which the City is trying to go. Mr. Dave Miller, Investigator, E.P.D., 3615 South Elati Street, was sworn in. Mr. Miller offered testimony regarding contacts the Police Department has had with the Adult Center and about the Adult Center. Mr. Miller testified regarding the arrest of the general manager of the Adult Center and two female companions on charges of Aggravated Robbery, and also an incident relating to a sexually-explicit picture found by an eight-year old boy, which picture was acknowledged by the Adult Center as one of the items they offer for sale. Detective Miller also testified that he had spoken with property owner Schear, and that he had obtained a business card presented to Mr. Schear by Mr, Deckard at the time the lease was negotiated, which business card indicates an auto/home upholstery shop was Mr. Deckard's business. Ac- cording to statements made by Mr. Schear to Mr. Miller, Mr. Deckard alledged that he wanted to use a portion of the building for his upholstery office, and that a friend was going to use the rest of the building for a clothing outlet. Detective Miller further testified regarding the activities and facilities available in the Adult Center. Carson moved: Tanguma seconded: The Public Hearing be closed. AYES: Allen, Barbre, Becker, Carson, Draper, McBrayer, Pierson, Tanguma NAYS: None ABSENT: Senti The motion :carried. Mrs. Pierson asked the pleasure of the Commission on this matter. Mr. Allen stated that he would like to make a determination on the matter at this meeting. • -9- Carson moved: Tanguma seconded: The Planning Commission dis a pprove th e a pplication for time extension for the noncon f o rming u se at 4370 South Broadway, as requested by Rocky Mount a in Acquisitions. Mrs. Pierson asked if there were any comments? Mr. McBrayer stated that he felt the applicant was ill-prepared for the meeting this evening; there was no financial information presented to substantiate the allegation of a financial hardship if the business were forced to relocate. Mr. McBrayer also cited the fact that the applicant had undertaken some remodeling of the premises fo llowing enactment of a temporary ordinance placing controls and restrict i ons on adult entertain- ment uses/service facilities. Mr. McBrayer stated tha t the burden of proof of substantial and unnecessary hardship is on t h e a pplica nt, and he did not feel that the applicant had presented a ny proof t o substantiate his claim. Mr. Tanguma agreed that the applicant had presented n o d ocumentation to support his request, and that it has become appar e nt t o him that the hard- ship is self-imposed. Mr. Tanguma cited the fact that Mr. Deckard had offered the exorbitant rental to the landlord; h e h a d misrepresented the type of business he was in; he chose a location tha t is not compatible with the type of business he chooses to engage i n. Ms. Becker stated that she would prefer a little mo re time to study the evidence and testimony presented at this hearing ; however, there is a motion on the floor, and she would support the mo tion to deny the applicant's request. Ms. Pierson discussed the contradicting testimony t hat has been presented at this Hearing. She stated that she did not f eel the applicant has es- tablished a case to prove unnecessary and substan t ial hardship if the provisions of the Zoning Ordinance were to be enf or c e d . The question was called for. AYES: Pierson, Tanguma, Allen, Barbre, Becker, Carson, Draper, McBrayer NAYS: None ABSENT: Senti The motion carried. Ms. Pierson thanked members of the audience for their attendance. She pointed out that the line of appeal for t he applicant is the Court. V. PUBLIC FORUM. Ms. Pierson asked if anyone wished to address the Commission? No one addressed the Commission under thi s section o f the agenda. • • -10- VI. DIRECTOR'S CHOICE. Ms. Powers stated that she would suggest the Findings of Fact on this Public Hearing for Extension of time be adopted as quickly as possible. They will have to be written. Discussion ensued. A tentative meeting was scheduled for December 15th at 6:00 P.M. to adopt the Findings of Fact. Ms. Powers stated that she had nothing further to report at this meeting. The meeting adjourned at 10:45 P. M. trude G. Welty cording Secretar