NOTES ON PLANNING COMMISSION MEETING, 2/5/03 AGENDA ITEM 2, CONTINUED HEARING ON DRAFT BIG BOX AMENDMENT CAUTION: to shorten the read time, you may want to focus attention on the following: ** staff made two substantive changes in the draft amendment as reported by the BBSC, discussed under the section below headed, unsurprisingly, "SUBSTANTIVE CHANGES". ** the Planning Commission made several substantive changes, one sufficient IMHO to destroy the purpose of the draft amendment: the killer change is allowing development as a permitted use if the LRE **building** is sited 500 ft from residential (BBSC language requires that the **site** be 500 ft from residential). also a substantive change, but a level less lethal: elimination of the 45/55 dB(A) night/day noise standard (leaving only the 10 dB(A) greater than ambient standard). a substantive but beneficial change: reversal of the staff's elimination of the Hours of Operation restriction on delivery/load. ---------------------------------------------------------------------- ---------------------------------------------------------------------- Public Hearing (continued from 1/8/03) Comments, by the usual suspects (staff and citizenry): Jim Maurer Chris Tanz Jean Paul Bierny Uwe Fink John Rupley Joyce Joosten Bill DuPont Anne Murray Frank Bangs ---------------------------------------------------------------------- Planning Commission discussion, after public hearing closed, by: Rob Tomlinson (Chair) Grace Evans Frank Thompson Rick Lavatty Andrea Lawrence Arlan Colton Benny White and others ---------------------------------------------------------------------- ---------------------------------------------------------------------- CHANGES IN DRAFT AMENDMENT INTRODUCED BY STAFF, in response to comments or requests by Planning Commission members and by Lewis and Roca (for Wal-Mart): ** Sections 3.5.9.7.B and C were combined into one section 3.5.9.7.B. This is a measure to reduce duplication of the specifications for the performance standards, which are the same for permitted use and Type IV Administrative procedures, except for the subsections "Site Characteristics" and "Vehicular Access", 3.5.9.7.[B,C].1.[a,b] ** Replacement of various wordings by "residentially zoned or residentially developed", for consistency. ** Reordering of the subsections specifying performance standards, to group them more logically. ** Replacement of "Large Retail Establishment" with the acronym "LRE", where possible. ** Addition of a Flow Chart of the approval procedure for an LRE-site plan. ** Clarification or use of more specific language: 3.5.9.7.B.1.b.2. Vehicular Access. Type IV. impacts within business/industrial park identified by TIA 3.5.9.7.[B,C].1.c. Site Amenities. laundry list made specific (delete "including") 3.5.9.7.B.2.d. Materials and Colors. apply only to LRE and made specific (delete "such as") 3.5.9.7.C.1.c.1. Setbacks. Buildings and ..... "buildings" -> "all buildings, including garden centers," 3.5.9.7.C.1.c.5. Setbacks. Buildings and ..., Other Than the LRE. "Buildings" -> "Buildings, other than LREs, on a site with an LRE" ** SUBSTANTIVE CHANGES: 3.5.9.7.C.1.c.2. Setbacks. Delivery Truck Parking. "for parking of delivery trucks, there shall be a setback of" -> "designated parking for delivery trucks not parked at a designated loading space shall be set back" Comment by JAR: This change allows a loading space to be the designated truck parking area, at least for deliveries associated with a particular building and indeed for all delivery trucks for the site if the site owner does not care. This new language vitiates the standard for truck parking, reducing it far below the intended 350 feet from residential, e.g., to (125 - 50) ft. for a small-footprint business. A neighborhood red flag - parked trucks near residential draw immediate complaints. The original BBSC language must be restored. 3.5.9.7.C.1.g.2. Hours of Operation. Delivery and Loading insert "on the site, except for retail customer loading and food and beverage item delivery to building with Food and Beverage Sales," Comment by JAR: This change allows unrestricted 24-hour delivery to some of the most intrusive uses - all-night markets. A neighborhood red flag - working trucks near residential are even worse than parked trucks. The original BBSC language must be restored. ---------------------------------------------------------------------- ---------------------------------------------------------------------- THE PLANNING COMMISSION RECOMMENDED ADOPTION OF THE CODE AMENDMENT AS MODIFIED BY STAFF (SEE ABOVE), WITH THE FOLLOWING CHANGES: [Taken essentially verbatim from an email from Sarah More, in response to a request by Chris Tanz. My comments are interspersed and noted as from JAR, one hopes so avoiding confusion.] 1. eliminate the change (shaded part of the sentence) in [3.5.9.7.C.1.g.2.] on page 27 (Hours of Operation). Comment by JAR: this restores the original BBSC language. Good. 2. changes to last two paragraphs of section [3.5.9.7.C.1.h.] (Noise Abatement) on page 27 - note - this is from my notes, which I should check with Jim and Kathy on Monday, I am not clear on the second paragraph especially: The noise levels measured at residentially zoned or residentially developed property lines adjacent to the site shall be no greater than 10 dB(A) above the ambient noise levels for those time periods 10:00 p.m. to 7:00 a.m. and 7:00 a.m. to 10:00 p.m. [The noise levels from] Devices, including, but not limited to, vehicle warning beepers, that emit impulse sounds or pure tones shall not be operated between the hours of 10:00 pm. and 7:00 a.m. Comment by JAR: the language deleted from the first paragraph above: (... site) shall be no greater than 45 dB(A) during the hours of 10 p.m. and 7 a.m. and no greater than 55 dB(A) between the hours of 7 a.m and 10 p.m. or (shall ...) and from the second paragraph above: (... tones) shall be no greater than a level determined to correspond to the averaged noise level of 55 dB(A) measured at residential use property adjacent to the site during the hours of 7 a.m and 10 p.m., and such devices (shall ...) The original BBSC language should be restored. The 45/55 dB(A) levels are realistic standards (see other ordinances). Beepers, loudspeakers, etc. are impacts requiring mitigation during daytime hours, and there should be a standard for the Z.E. 3. Recommend to the Mayor and Council that there be an immediate review of other commercial uses. Comment by JAR: good, but only if this is done with participation of citizens (nhood/industry), as with the BBSC committee. Commissioner Thompson who proposed the recommendation did not want citizen participation. 4. That the references to a site separation from residential be changed to a building setback in sections B.2.a and B.2.b on pages 16 & 17 and section C.1.a.2 on page 21. For the purposes of this email I will edit only the first part of one of the paragraphs here, we will edit all three on Monday. The LRE building is located a minimum distance of five hundred (500) feet from property that is residentially zoned or residentially developed...... Comment by JAR: the language changed is: The site containing the LRE is located a minimum distance of five hundred (500) feet from property that is residentially zoned or residentially developed...... THIS CHANGE VIOLATES THE INTENT OF PROTECTING RESIDENTIAL FROM THE IMPACT OF A **SITE** WITH AN LRE. Permitted use or Type IV (lower-tier) procedures have essentially no mitigation of nhood impacts. Under the changed version of the amendment, residential can be closer than 500 ft. to a **site** boundary, and yet be 500 ft from the LRE, allowing development under a lower-tier procedure. Indeed, a sufficiently large site (33 acres if residential is only on two adjacent sides of a rectangular site) could have an LRE and be adjacent to residential, and yet be developed under the lower-tier procedures (permitted use or Type IV). This case appears not to be unusual. Consider: El Con; Foothills Mall; perhaps the new site at Limberlost-Stone. By giving up an additional 100 feet of setback over the guideline setback of 400 feet for a superstore, the site can be developed as a permitted use, effectively ignoring nhood impacts and avoiding most restrictions on the LRE and all restrictions on non-LRE buildings and uses (other than the usual development-designator-type standards). The difficulties are a consequence of (improperly) using a building setback to define a site, i.e., to determine whether a site falls under by right, Type IV or Type V approval procedure. The use of a building setback in a site description breaks the logic of the code. Site boundaries are fixed before drafting of a development plan; an LRE location is adjustable. The concept of "site" is integral to the BBSC amendment: not only for categorization of the site as by-right, etc.; but also for application of the standards. During deliberations of the BBSC, the site focus evolved because it is a natural approach and because it is of central importance for neighborhoods. The proposer of the change (Commissioner Thompson), noted that under the BBSC draft amendment, a site owner could carve out a sub-region just sufficient for the LRE and sell it to a dummy corporation, obtaining essentially the same benefit as under the proposed change. This is sophistry. An action so transparent and contemptible, aimed at avoiding the law, could not pass unobserved. I prefer not to believe that the six Planning Commissioners who voted with Commissioner Thompson to pass the change are all equally troglodytic. The discussion of the Thompson proposal was brief. The discussion did not consider the consequences of the proposal, nor did it take into account or even review the deliberations of the BBSC that led to the BBSC definition of the site characteristics for lower-tier review. Neither of the two Planning Commissioners on the BBSC voted with Commissioner Thompson, nor did the past Chairmen of the Commission. If the rules of the Planning Commission allow it, the LUC draft amendment on Big Boxes should be immediately reconsidered by the Commission. Comments submitted by parties outside the Commission and Planning Department should be included in the record and given consideration by the Commissioners.