The meeting was called to order by Commissioner Kerry KenCairn. Other Commissioners present were Colin Swales and Marilyn Briggs. Staff present were Mark Knox, Maria Harris, Adam Hanks and Sue Yates.

Briggs moved to approve the July 9, 2002 Hearings Board minutes. The motion was seconded and the minutes were approved. Swales moved to approve the Findings of the July 9, 2002 Hearings Board (1400 East Main Street, Forensics Lab). The motion was seconded and the Findings were approved.

Swales attended the Historic Commission meeting and a neighbor was concerned about noxious fumes from the glass blowing. Knox said the applicant is asking for a building shell. Building and fire codes will step in during the building permit phase. We can only do so much now without knowing what the use will be.

Swales had concerns about the color pallet submitted to the Historic Commission. Knox showed the Commissioners the colors submitted by the applicant. Swales asked the colors not be used in a crisscross pattern. Knox said they cannot add a Condition without re-noticing the action. He would ask for a color rendering to be submitted to the Historic Commission prior to issuance of a building permit.

This action was approved.

Briggs wondered if Condition 15 meant parking space #7. Knox said yes.

Briggs said there is a sidewalk that follows the driveway back to the new condominiums. There is a secondary sidewalk that cuts across the lawn of unit 1 that goes to the street. Because so much of this is being used without greenery, she felt it would be better to omit the sidewalk from the corner of the basketball court down to the street. It would allow for more greenery. Knox said the intent is to encourage walking to the street. It is minimal. He wants to go out and walk the site again. He said there is an effort to connect this parcel with the parcel in the rear. It would allow a mid-block connection.

Right now there is a hole in the fence and distinctive path right now.

This action was approved with KenCairn abstaining. She is the landscape architect on the project.

Swales had similar concerns. Considering the amount of work that has gone into regulating drive-up uses, this seems like you can drive up to it but you can’t reach out your window. Also, he has seen water coming from the area of the coffee stand and running across the parking lot. He thought it seemed temporary in nature. He is concerned if they get their foot in the door and providing no one complains it would get grandfathered in.

KenCairn questions the location and calling it a non-drive up. It seems to her a drive-up. Can they have a one year approval and that is it?

Harris said Condition 12 limits it to one year.

Harris said it is not considered a drive-up. She reviewed the traffic impact analysis submitted with the proposed annexation a couple of years ago and in looking at this proposal, Staff did not feel for a period for one year that it would have a significant impact.

Briggs moved to call it up for a public hearing. Swales seconded the motion. The motion carried with KenCairn voting "no".

Knox reported that the Planning Staff reviewed this as a Type I. During the discussion of the application, the Commission asked for a greater setback for the rear yard. In order to do that, we had to re-notice stating this condition was imposed. In doing so, another neighbor called it up for a public hearing because he felt the greater rear yard setback would have more of an effect to the neighbors on the front side. Staff’s perspective is that the front yard setbacks are set. They are ten feet with a porch from the front yard, 15 feet for the habitable portion of the house and 20 feet for a garage. Regardless of what happens with that imposed Condition of the rear yard setback, the applicant could build a house at those setbacks. It is Staff’s opinion that all the Condition did was narrow the buildable area. The house got shifted that much closer to the middle or front of the lot. The appellant is not here but wanted his concerns noted. Staff does not feel there is an additional impact to any neighbor by the imposed Condition placed by last month’s Hearings Board. Staff is recommending approval with a Condition of a 25 foot rear yard setback.

Briggs moved that PA2002-077 be approved. KenCairn seconded the motion and it carried unanimously.

Harris said there are two enclosed buildings (13,000 sq. ft.) and an open-air pavilion on the east end (4,000 sq. ft.). The interior was approved at a restaurant/retail level of activity. The pavilion was described as being used for occasional open markets and a very small scale Tuesday market. At this point, the applicant is requesting they be allowed to use the pavilion area for special performance events. That requires a Conditional Use Permit. The main issues for Staff in looking at the CUP criteria are the impact of the use on the surrounding area and also that it is meeting the parking requirements.

The parking calculations are outlined in more detail in the Staff Report. The parking comes out a wash. Staff’s concern is working out a system of when they can use what they want. Condition 4 tries to put in place a system where Staff would review prior to each event, what they were going to close down and what would be open. At the Hearings Board, it seemed that would be too cumbersome for the applicant. The new Condition would be four options: 1) They could use the pavilion space as a CUP and then keep open 3,850 square feet of the interior of the building. 2) They could use about two-thirds of the pavilion space and keep a little over 8,000 sq. ft. on the inside open. 3) They could use a portion of the interior of the building for a CUP (1,000 sq. ft.) and keep the whole building in operation, but not the pavilion. 4) At no time could CUP activities be going on in both the pavilion and the interior space.

KenCairn wondered if they could work out an agreement with the hardware store. Harris said that could be an option with a long-term lease agreement.

Harris introduced Adam Hanks who has been involved in this application. They have tried to use the existing parking. They have tried to simplify the parking with the Condition.

KenCairn said, for example, let’s say there was a problem with the operation. The problem would possibly show up as bleed-over parking going places it does not belong. What else would generate a complaint? Harris said the option they are proposing would give the applicant the basic set of rules they would have to operate by. We would no longer be requiring them to check with us before each event.

Harris added a Condition that they do a noise analysis and show that a typical event meets the City’s noise ordinance.

Briggs noted there were several letters in the packet encouraging the Hearings Board to approve the application. Is the pavilion enclosed or not enclosed? Harris said it is not enclosed. Hanks said the applicant has talked about enclosing it. Harris said this application is not asking for any exterior changes.

Briggs asked about noise. Hanks said the noise is measured from the residential use in a residentially zoned property. Because the applicant will have different types of events, there will be different types of equipment. Noise can vary between nighttime/daytime and weather.

Harris said Condition 8 states they have to do an independent noise analysis.

KenCairn wondered if there was a time constraint. Hanks said the decibel readings change after 9:00 p.m. Briggs asked if they could add a Condition that concerts end at 11:00 p.m.?

Hanks said the interior of the building is solid walled and the applicant feels it would not allow noise to carry to the outside.

Site Visits and Ex Parte Contacts- Swales attended the Historic Commission meeting where this was discussed. Philip Lang spoke at that meeting and Swales heard his testimony. Lang also has a letter to the Planning Department stating his concerns with this application. Lang’s main concern is general development along A Street and parking issues. Briggs had a site visit.

ALLAN SANDLER, owner/member of the A Street Marketplace, said the report is clear. They have worked closely with the Planning Department and he feels they have ended up with a really good approach to the neighborhood. The curtains will be used to block lights and glare in the pavilion.

They are in complete agreement with the City on the regulations for sound, parking and lighting. They want it contained in their own space. They have 14 tenants that would leave if they had the pavilion using up all their parking spaces. They devised a process with Hanks so they will not have parts of the marketplace open when other parts are open. They only anticipate concerts at night. They are not asking for any Variances on the parking. They are willing to live with their own requirements and restrictions.

They borrowed the City’s sound meter and tested all around the place. They will abide by the sound ordinance. They will keep the stage lighting within the building. It will not go out on the street. They are doing the pavilion for the community. It is an affordable venue space for local artists.

KenCairn wondered how Sandler would feel about limiting the time. Sandler is agreeable to 11:00 p.m. They are talking about enclosing the pavilion. KenCairn asked if he would be willing to close at 9:00 p.m. until the pavilion is closed in. She gets sound all the time from A Street and she lives many blocks away. Sandler said it’s going to be very versatile and he would prefer not to have a time limitation. He is not sure 9:00 p.m. will work.

Knox said there are two issues. The sound ordinance is subject to citation. Sandler could be cited by exceeding the noise levels. It is a CUP and it is possible to revoke the permit if the applicant cannot comply with the intent of the application. There are pretty strong prongs into the applicant’s application to make sure it is not going to a violating circumstance.

Sandler wondered if they could compromise at 10:00 p.m. He suggested no amplified music or drumming after 9:00 p.m..

Sandler plans to enclose the pavilion eventually, however, the cost would be about $100,000.

Swales said a theater is not a permitted use or CUP in this zone. Is the only way to do it is under nightclub (entertainment)? It the theater a CUP?

Hanks said some of the terminology changed in the E-1 zone and it went from eating, drinking, entertainment establishments as permitted in E-1 and the new ordinance in 1998 changed it to nightclubs. The nightclub definition includes entertainment. The intensity of that use is similar to the others in that same category.

Briggs wondered how many warnings are issued before they are shut down. Hanks said he is not on call 24 hours day. Sandler does not want bad publicity and will monitor the site. Knox said what would happen is that the City will get a complaint. The applicant would get three chances before they would begin revocation proceedings.

PHILIP LANG believes this is a prohibited use. Enforcement depends on people complaining. This is not a good way to set this up. His tenants have called him and said they are against the proposal. The Staff Report and findings have not dealt with the target use of the zone -- E-1-- and the impact. A Conditional Use Permit shall have no greater adverse material effect on the livability of the impact area when compared to the development of the subject lot with the target use of the zone. The proposal is an intensification of the use that is being proposed. The larger adjacent R-2 area is the impact area. A CUP is not a "shall"; it is a "may". The burden of proof is not on the residents or the neighborhood, but on the applicant. This application does not meet the requirements for a CUP because of generation of traffic it affects on surrounding streets and the generation of noise, light and glare. The parking is inadequate. The development abuts residential on two sides. E-1 is designed to provide for a variety of uses...and have minimal impact on surrounding uses (R-2). Office, retail and light industry are far less intense uses than a bar, nightclub and theater.

Lang quoted the Daily Tidings dated April 6, 2002. The description in the Tidings would indicate an intensification of use that is not envisioned in the E-1 zone.

This is a Condition on a CUP that is unenforceable and it will never be enforced. The quality of life in their neighborhoods is already going downhill. Now we are going to have alcohol and young adults, wild driving, accidents, bottles, cans, and trash. There will be people zooming up First, Second, Third and Fourth Street.

Lang mentioned a letter in the packet written by a soundman that indicates he is not interested in any limits.

Swales said the property is bordered by R-3 across Oak Street as well.

Harris said on the handout that was passed out, the following wording should be added at the beginning: The following stipulations shall apply to all events held on-site, including the pavilion and public spaces. No more than one scenario shall be held at one time. This replaces Condition 4.

Number 3 of the handout should read: Interior public space (1000 sq. ft.) for CUP activity.

Harris suggested adding a Condition 10 that the method for delineating the front portion of the pavilion space from the closed rear portion of the pavilion space shall be approved by the Staff Advisor prior to the first event.

KenCairn believes there are enough issues that she would like to bump this to the Full Commission.

Knox said there can be findings at the Full Commission for approval or denial, but if the Conditions are added or deleted, there is no way to print new ones at the meeting, if approved.

Briggs set this is as a precedent-setting decision and she believes it should be forwarded to the Full Commission with Conditions.

Swales has not seen anything in the findings comparing the proposed use to general office (target use). He can’t find any reference to theater use in the E-1 zone. He wants to make sure what Sandler is applying for is what he is getting.

Sandler said they are not asking for anything changing the use from parking, sound or light. They are not asking to increase the impact.

Harris said the Hearings Board cannot call it up to the Full Commission. They can only approve or deny it. If they deny it, they can give the applicant the option of coming back. They can keep the public hearing open. The Commission needs to be really clear what they want Sandler to bring back. Knox noted that the Hearings Board changes next month. It is likely we would have to have a special meeting to hear this. Harris said if they are leaning toward continuing, it would be best to lay everything out that they want the applicant to bring back to them.

Swales wants to see whether "theater" is included as a proposed use or whether it is rolled into the nightclub. He would like to see the proposed use compared to the target use which is general office use. He would like to see some clarification on the parking requirement and what they are approved for currently.

Briggs would like to see the City Attorney’s interpretation that the CUP for a bar and nightclub could include smaller scale "theater" productions. She would also like to see how the interior space is to be used for theater and entertainment (floorplan). She would like to add a Condition 11 that no outdoor pavilion use after 9:00 p.m. be allowed with amplified sound or drumming until such time the building becomes an interior soundproofed space.

Swales would like a clarification as to whether E-1 with an R overlay qualifies as residentially zoned land. When you look at the Special Permitted Uses, they refer to distance from residentially zoned land. Harris said it is not considered residentially zoned land.

Even though the Public Hearing was closed, Sandler spoke up to say he wished to withdraw his application and left the meeting.

Harris recommended the Hearings Board make a decision. KenCairn thought Sandler had to be present to agree to a continuance. Harris affirmed.

Briggs moved to deny PA2002-094. Swales seconded the motion and it carried unanimously.