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HomeMy WebLinkAbout1981-01-20 PZC MINUTES• I. CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION January 20, 1981 CALL TO ORDER. 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: Pierson, McBrayer, Draper, Carson, Barbre, Tanguma, Senti Members absent: Also present: Powers, Ex-officio Becker, Williams Assistant Director Dorothy A. Romans Associate Planner Barbara Young City Attorney Rick DeWitt II. APPROVAL OF MINUTES. Chairman Pierson stated that the Minutes of December 2, 1980, were to be considered for approval. Carson moved: Tanguma seconded: The Minutes of the December 2, 1980, meeting be approved as written. AYES: Senti, Pierson, McBrayer, Draper, Carson, Barbre, Tanguma, NAYS: None ABSENT: Becker, Williams The motion carried. III. AMENDMENT OF COMPREHENSIVE ZONING ORDINANCE CASE 111-81 §22.4-10, B-1 Zone District §22.4-11, B-2 Zone District §22.4-13, I-1 Zone District §22.4-14, I-2 Zone District Mrs. Pierson stated that she understood some members of the audience were present regarding the proposed amendment of the Comprehensive Zoning Ordinance, believing that the Public Hearing on these amendments which would place controls on adult entertainment establishments was scheduled for this evening. Mrs. Pierson stated that the meeting this evening is a work session for the Planning Commission to review the proposed amend- ments, and the Public Hearing before the Planning Commission is scheduled for January 27th at 7:00 P. M. Mrs. Pierson stated that members of the audience were welcome to stay for the discussion of the matter by the Planning Commission, and were invited to return next week for the Public Hearing. Mrs. Pierson asked for the staff report. /' Ms. Powers stated that she would give a brief over-view of the case be- -2- fore the Planning Connnission, and would then turn the basic discussion over to City Attorney DeWitt. Ms. Powers noted that Chief of Police Holmes would not be present this evening, but she would attempt to ex- press some of his concerns regarding this matter to the Connnission. Ms. Powers stated that there have been a couple of applications for sales tax licenses and other inquiries as to what procedure should be followed to establish an adult entertainment use in the City of Englewood. The staff and Planning Connnission have been asked by City Council to place some type of controls on such uses. The Planning Connnission will be considering amendments to the Comprehensive Zoning Ordinance which would control the location of such adult entertainment businesses; these amend- ments would pertain to the B-1 and B-2, Business Zone Districts, and to the I-1 and I-2, Industrial Zone Districts. Ms. Powers stated that Mrs. Romans and Mrs. Young would display maps indicating where the adult entertainment businesses could be located in the City of Englewood were the proposed amendments to the Comprehensive Zoning Ordinance to be adopted. Ms. Powers stated that the Public Hearing before the Planning Commission on the proposed amendment of the Comprehensive Zoning Ordinance has been set for January 27th at 7:00 P. M. City Council has set a special meeting date for the Public Hearing before that body, which will be on February 5, 1981, at 7:00 P. M. Ms. Powers asked that City Attorney DeWitt address the Connnission to more fully discuss the proposal before the Connnission. Mr. DeWitt discussed the need for "effective" legislation pertaining to the matter of adult entertainment uses. Mr. DeWitt stressed that the key term is "effective" legislation on this matter. Mr. DeWitt stated that the Colorado Legislature has had a great deal of difficulty in passing legislation on the matter of obscenity and pornography that is "effective"; the Supreme Court has struck down at least two attempts to deal with this matter on a state-wide basis, and each local jurisdiction is now attempting to deal with the problem. Mr. DeWitt stated that he understood new legislation is pending in this session of the Legislature that would per- tain to matters dealing with obscenity and pornography on a state-wide basis, but it is not enacted at this time. Mr. DeWitt stated that at the present time, local jurisdictions may deal with obscenity and pornography by means of control through zoning regulations, or by means of licensing the businesses. Licensing pro- visions encompass the matter of fees, inspections, etc. and help to prevent illegal activities. Mr. DeWitt stated that one of the most effective ways to control the proliferation of obscene and pornographic materials and businesses is through zoning controls, and there are two ways to proceed on the matter of zoning controls. One is that of a "combat zoning ordinance", which defines a specific area and zone for this type of business. A second way to proceed is by the "dispersed concept", which concept does not totally ban the particular use, but would prohibit these uses within a specific area. City Council feels that the better approach to take on this matter is to restrict the areas in which these uses may locate. Mr. DeWitt cited a court case from Michigan, Young vs. American Mini Theatres, Inc., which did uphold the efforts of the City of Detroit to disperse these uses by means of specifying a given distance between uses and residential neighborhoods. Mr. DeWitt pointed out that the A . • • • -3- amendments proposed to the Englewood Zoning Ordinance do set forth distance restrictions on adult entertainment business of 1,000 feet from the property line of any other such business, or within 1,000 feet of the property line of any church, school, park, playground or public building, or within 1,000 feet of any property zoned R-1-A, R-1-B, R-1-C, R-2, R-2-C, R-3 or R-4. Mr. DeWitt stated that in past cases, the Supreme Court has wanted to know "what we are talking about; what we want to prohibit". This is spelled out in the body of the proposed amendments to the Comprehensive Zoning Ordinance. Mr. DeWitt stated that the Detroit case did set forth a distance difference between the adult entertainment businesses and residential uses of 500 feet and a distance of 1,000 feet from any two other "regulated uses" which applied to other adult entertainment type of businesses. The City of Englewood amendments as proposed would re- strict the uses within 1,000 feet of other such businesses, churches, schools, parks, playgrounds, public buildings, or residential property. He stated that the legal staff is willing to support the 1,000 foot re- striction applied to all the aforementioned instances. Mr. DeWitt stated that there are presently two uses of the adult entertain- ment nature on South Broadway; the approval of the proposed amendments would make these uses non-conforming by virtue of their location. It is suggested that a provision be contained within the proposed amendments that would give such non-conforming uses 180 days in which to relocate to an area that meets the criteria of the proposed amendments. Mr. DeWitt referred to a case from the State of Washington, Northend Cinema, Inc., vs. City of Seattle, wherein the adult entertainment businesses were given 90 days to conform to the ordinance. This provision was suc- cessful and was upheld by the Washington State Supreme Court. Mr. DeWitt stated that there has been no decision in the State of Colorado, and he knew of no other case supporting this proposition. Mr. DeWitt stated that he feels the City has the authority to consider this proposed legislation. Mr. DeWitt noted that in regard to the non-conforming use status of adult entertainment businesses, the City of Colorado Springs has a 120 day pro- vision in their ordinance. He stated that Colorado Springs has been threatened with litigation on this provision; the applicants had initially requested variances from the provision, but have since withdrawn the request for the variance. Mr. DeWitt stated that he feels the 120 day provision will be attacked in the courts, and that the applicants will go to the Federal District Court, the forum that is most favorable to them. Mr. DeWitt stated that he felt a case before the Colorado State Supreme Court would be the most favorable forum on behalf of a municipality. Mrs. Pierson asked if the existing adult entertainment businesses on South Broadway are within 1,000 feet of each other? Mr. DeWitt stated that they are not; they are, however, within 1,000 feet of a residential area. Mr. DeWitt stated that he had a couple of suggestions to make on the ordinance in addition to the change regarding non-conforming uses; one being that this be considered as "permanent" legislation rather than as "temporary". He questioned the need to reconsider such legislation within six months. Mr. DeWitt stated that the one matter on the regula- tion of this type of business that has been disapproved by both the -4- Supreme Court of Colorado and the Federal Supreme Court, is that of "total banning". Mr. DeWitt emphasized that "effective legislation does not allow total banning". Mr. DeWitt discussed the City of Jacksonville, Florida, which at one time had 28 adult businesses in their community. There is now one adult entertainment business within the City of Jacksonville, Florida. Mr. DeWitt emphasized that this was not done by a total banning of the uses, but by controls placed on these businesses. Jacksonville also went through a number of law suits regarding the controls on the adult entertainment businesses. Mr. DeWitt further emphasized that the proposed amendment of the Englewood Comprehensive Zoning Ordinance does not propose a "total banning" of the adult entertainment uses, but placing controls on these businesses as far as location is concerned. He stated that in his opinion, "we can't outlaw the uses altogether, but we can monitor the activities." Mr. Draper asked if the 180 days for elimination of a non-conforming use has been tested in Court? Mr. DeWitt stated that the State of Washington case was based on a 90 day time element for the relocation and/or elimination of non-conforming uses. Mr. DeWitt stated that he would reconnnend the 180 day time element be included in this Ordinance. Mr. DeWitt stated that he felt the first lawsuit in Colorado on the non- conforming time element would be against Colorado Springs; he stated that he would follow this law suit closely and would make recommendations for amendment of the Englewood Ordinance following that decision. Discussion followed. Mrs. Pierson questioned how the lawsuit in Colorado Springs would affect the Englewood Ordinance? Mr. DeWitt stated that he anticipated that the Colorado Springs suit would come up, possibly by the middle of February. He stated that he felt we might possibly have to sue the existing businesses to get them to relocate; but he would not be op- posed to this procedure because the City could then choose the District Court of the State of Colorado rather than the Federal District Court. Mr. DeWitt reiterated that he felt the State District Court would be more favorable to the position of the municipality than the Federal Dis- trict Court. Mr. Draper stated that as he understood the intent of the proposed amend- ments, it is not to put this type of use out of business, but to locate them where they will be as inoffensive as possible. Mr. DeWitt stated that this is the thrust of the proposed legislation. Mr. McBrayer stated that he would like to see Mrs. Romans' presentation, and that he had some questions he would like to have answered. Mrs. Romans and Mrs. Young gave a presentation using a map with transparency overlays, which depicted areas in which the adult entertain- ment uses could be located at the present time, and where they could be located if the proposed amendments were to be adopted. Overlays depicting the areas that are zoned for business, residential and industrial uses were shown, with churches, schools, public buildings, playgrounds, parks, etc. shown. The 1,000 foot limitation was also depicted, resulting in an area along West Union Avenue which might be an area where the adult • entertainment uses could locate; there is also an area west of South Santa Fe Drive on either side of West Dartmouth Avenue where the adult entertainment uses could locate, and one area just east of South Santa Fe Drive and U.S. 285. • / • -5- Mrs. Romans pointed out that part of the area west of South Zuni Street in Denver is zoned for residential use, and asked if this could be taken into consideration also as far as the 1,000 foot limitation from residential uses were concerned? Mr. DeWitt stated that it could be considered. It was also pointed out that the fire training tower and the Allen Filter Plant were .located in the industrial area in the vicinity of West Union Avenue, and if they were to also be considered as public buildings or public uses, this would further decrease the area in which adult entertain- ment businesses could locate. It was also pointed out that the City of Englewood nursery is located on West Union Avenue, which might also be determined as a public use. Mr. DeWitt cautioned against being too restrictive; he stated that zoning principles can be used to control the locations, but cautioned against totally outlawing such uses. He noted that the areas which have been shown to allow the adult entertainment uses after the application of the proposed amendments, are zoned for industrial uses. He stated that he did not know what impact the adult entertainment uses would have on the other business uses that have located in these areas. Discussion en- sued. Mr. McBrayer asked if by the implementation of the Class I bicycle trails system along the South Platte River and along Dry Creek, whether this could be termed a public use and would also be used to restrict the lo- cation of the adult entertainment businesses? Mrs. Romans stated that the ordinance states a public building,park, or playground. She questioned that the proposed amendments could include the bicycle trail system. Mr. McBrayer stated that he would question the authority to put somebody out of business by the non-conforming use aspect which Mr. DeWitt dis- cussed. He noted that Mr. DeWitt has mentioned a six month time element. He asked whether another type of use was in existence and an andment was made to the ordinance which would make the business non-conforming, would there be a similar amount of time before they would have to relocate or go out of business? He stated that he was thinking about a duplex in a single-family district --is there a time element on such a non-conforming use? Mrs. Romans stated that there are three different instances in which time limits were placed on non-conforming uses: one being the lumber yards that were located in a B-1 Zone District; another being a single-family use in an I-2, Heavy Industrial Zone District, and the third being an I-2, Heavy Industrial use in a single-family zone district. Other than these three instances, there are not time elements placed on the non- conforming uses. The ordinance does, however, require that if the use is changed, that it be to a conforming use. The non-conforming use designation does go with the land, and is not required to change just because of a change of ownership. Mr. DeWitt discussed further the non-conforming use provisions cited in the Washington case of 90 days time to relocate such non-conforming businesses. Mr. McBrayer stated that he did not understand why the non- conforming adult entertainment uses would have to vacate the premises? Mr. DeWitt stated that we are considering the effect the adult entertain- ment uses would have on residential areas, public buildings, schools, churches, parks, playgrounds, etc. Mr. DeWitt quoted the following from -6- the Washington Court Case: "In the face of these facts, the court below found appellants had not come forward with any clear evidence of economic harm. The main thrust of their objection, that simply having to move to another location or show a different type of film is substantial economic harm, is unsupported by any clear evidence. The court had a right to conclude that appellants' allegations they will suffer economic harm were speculative at best. The record thus supports the findings of the court below that Northend and Gaiety will incur no economic damage, and Apple will incur no clear economic damage, by enforcement of the ordinance." Mr. DeWitt stated that he understands that businessmen surrounding the existing businesses have complained to the City because they feel that they are experiencing economic harm as a result of the adult entertain- ment business. Discussion ensued. Mr. Draper asked whether economic harm would have to be shown to result in Englewood, or whether reference could be made to other areas where economic harm has been experienced. Mr. DeWitt suggested that an effort should be made to develop expert testimony to show economic harm experienced in other communities, and possibly project what could happen to the Englewood businessmen in the future if this type of business were not controlled. Mr. McBrayer asked why the amendments to the Comprehensive Zoning Ordinance are being handled on an "emergency basis"; and why wasn't something done on this some time ago? Mr. DeWitt stated that this type of business has not been in Englewood until recently. Mr. McBrayer stated that they have been in the area for quite some time, and again questioned why something wasn't done before now when there are some operations that would be put out of business. Mr. DeWitt stated that it is a matter of policy decision; the City Council does not feel that this type of business is in conformance with the quality of life that the citizens of Englewood want to preserve. He made reference to the quality of life and businesses along East Colfax Avenue where a great many of the adult oriented businesses are situated, and also to areas of Adams County where there have been problems with the adult business operations. It is the determination of the City Council that the matter of control on the adult-oriented businesses should be addressed now before it reaches the proportions experienced elsewhere. Mr. DeWitt noted that there have been other problems with theaters, etc. in the City of Englewood, such as the Gothic Theater, which was at issue several years ago. Legislation was enacted at that time which is presently used by the City, but the proposed amendments to the Comprehensive Zoning Ordinance would control the location of such uses. Further discussion ensued. Mr. DeWitt stated that the City Attorney's office is pursuing violations that have occurred with the massage parlors at the present time. Mr. Tanguma made reference to Page 2 of the proposed amendment, which states that a "significant portion" of the bookstore stock must deal with matters of "sexual conduct" or "specified anatomical areas." He stated that he felt this is rather vague, and should be more specific. Mr. DeWitt stated that the courts have up-held the figure of 10% or more. After • further discussion, it was determined that the figure of 10% would be • designated rather than a "significant portion". Mr. McBrayer stated that he felt the Commission should know what the comments of the other businessmen are regarding the adult entertainment businesses. Mrs. Romans stated that she has had comments from several people, among them Mr. Ed Draper of the Planning Commission, and Mr. Bud Collier, '\ • • • -7- president of First Federal Savings. There have been concerns expressed by citizens to other departments of the City, and members of the Fire and Police Departments are very concerned about the operation of the massage parlors that have located within the City limits. Mrs. Romans emphasized that it was as a result of the problems with the Gothic Theater that the existing pornography ordinance was adopted. Mrs. Romans stated that she did not feel that the City of Englewood has a "bad problem" at this time, but the proposed amendments are an attempt to prevent the development of bad problems. Mr. McBrayer asked if the Police Department feels that the adult oriented uses promote illegal activities? Mrs. Romans stated that she would not attempt to speak for chief Holmes on that point. Mr. DeWitt stated that this opinion has been expressed to him by Police Chief Holmes. Mrs. Romans stated that the adult oriented businesses are of strong con- cern to the City Council and administration, and the proposed amendments are an attempt to prevent further uses from concentrating in Englewood. Mr. Draper stated that he would like to commend the City Council, the staff of the Community Development Department, and the legal staff on their efforts to control these uses. Mr.McBrayer asked if the Commission would have documentation before them for consideration on the impact that X-rated businesses have on neighbor- hoods, and the economic impact they have on other businesses which are around them. He stated that he wanted to see all the facts before he made a decision on this matter. Mr. DeWitt stated that all efforts would be made to obtain the information Mr. McBrayer wants. Mrs. Pierson stated that she would also like to see some substantiation that the adult businesses cause a deterioration of property values, and cause an increase in the crime rate. Mrs. Romans noted that some additional members of the audience had come in during the discussion, and that perhaps it should again be noted that this is not a Public Hearing. Mrs. Pierson again announced that the meeting this evening is not a Public Hearing, but that on the evening of January 27th, there will be a Public Hearing on the proposed amendment of the Com- prehensive Zoning Ordinance in regard to controls on adult entertainment businesses. Mrs. Pierson invited all members of the audience to return for that meeting. Ms. Powers stated that the staff included a report from the American Society of Planning Officials pertaining to "Regulating Sex Businesses" in the Commission members information for the meeting, and suggested that the members might want to review this report prior to the Public Hearing on January 27th. IV. PUBLIC FORUM Mrs. Pierson asked if there was anyone in the audience who wished to address the Planning Commission on any topic? No one spoke to the Com- mission. -8- V. DIRECTOR'S CHOICE Ms. Powers commended Mr. McBrayer on his meeting of the Bicycle Trails Committee, which was held on January 13th. She stated that it was a very well organized, informative meeting. Ms. Powers stated that she had met earlier this date with Mr. Bill Howard, Chairman of the Design Review Ad Hoc Committee. They had driven around to view problem areas where he thought design review would be of aid. Ms. Powers stated that she felt there are diverse opinions on what type of design review the committee should be considering: are we talking about landscaping reqirements and revision of the sign code, or are the matters of structural and facade changes, architecture, etc. under con- sideration? Ms. Powers stated that Mr. Howard is interested in setting up a meeting for Thursday evening, the 29th of January, for the Design Review Committee. Ms. Powers stated that this meeting would be a dis- cussion session, but there are issues that need to be resolved. Discussion on the meeting night ensued. It was determined that one or two of the members could not be present on Thursday evening. Mrs. Pierson suggested possibly 5:00 P. M. onthe 27th of January for this discussion session, inasmuch as there is already a special session of the Commission set for 7:00 P. M. of that date. Ms. Powers stated that the staff would check further with Mr. Howard and get back to the Commission. VI. COMMISSION'S CHOICE • Mrs. Pierson asked if members had made reservations for the workshop for ~ Planning Commission members which is being sponsored by the Denver Regional Council of Governments? The Recording Secretary affirmed that reservations for seven of the members had been called in. Mr. McBrayer stated that there will be another meeting of the Bicycle Trail Committee on February 24th and 7 :00 P. M. in th'e Library Conference Room. Mr. McBrayer stated that the presentation will incorporate comments and suggestions made at the meeting of January 13th. He noted that Cherry Hills Village has a bicycle trail system, one of which stops at East Quincy Avenue and South Clarkson Street; he suggested that the City of Englewood might extend a trail to tie in with the trail in Cherry Hills Village. He stated that there will be publicity in both the Englewood Sentinel and the Englewood Citizen. Ms. Powers stated that representatives of Prowswood, Inc. will be bringing in their plans this week or next week. She stated that she would be able to bring the Commission more up-to-date at the next meeting. Ms. Powers stated at the next meeting of the Commission, she would give a progress report on the Downtown Development Authority and the plans on which they are working. City Council did approve the ordinance which would allow the City to enter into the joint planning process with the Authority and Brady Enterprises; this agreement has yet to be signed, but will be shortly. Ms. Powers stated that she plans to use the Planning Commission as the citizen board to review what she is doing in regard to ~ the Downtown Development Authority. Minutes from all the meetings will be written up and made available. Ms. Powers stated that there are three individuals on the "management team"; she represents the City of Englewood, Bob Joyce represents Brady Enterprises, and Mr. Fred Kaufmann represents the Authority until such time as a new executive director is chosen. This ., • • -9- management team is to oversee the work of t h e Downtown Development Authority. Ms. Powers stated that she feels it is i mportant that issues are discussed as soon as they arise, and that she wi l l be doing "white" papers, or re- ports, on these matters. Ms. Powers sta ted that she would anticipate the Planning consultant firm that has been engaged, Design Workshop, Inc., will make a preliminary presentation to the Commission within the next six weeks or so. Mrs. Pierson asked if there was further business to come before the Com- mission? There being no further business, the meeting was adjourned at 8:20 p.m. rtrude G. Welty ecording Secret