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HomeMy WebLinkAbout CSFHO Hearing @ 6 p.m. Attch 412/7/2018 PRESENTATION TO THE BOCC ON THE TITLE 18 ORDINANCE -` RELATED TO REGULATION OF SHOOTING FACILITIES lw Patty Charnas, Director, Community Development Austin Watkins, Planning Manager, Community Development Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney December 10, 2018 tAgenda — BoCC Presentation ■ Background. • Need for amendments to Title 18, Unified Development Code, ("UDC") relating to the regulation of commercial shooting facilities. ■ Discussion and overview of proposed UDC amendments relating to commercial shooting facilities. ■ Discussion and overview of the Planning Commission recommendation. ■ Discussion and overview of Staff recommendation. 12/10/2018 2 12/7/2018 v� Background 9j�11 NGI� December 18, 2017: The Jefferson County Board of County Commissioners ("BoCC") approved a one-year moratorium on commercial shooting facilities. ■ Purpose: Protect the public safety and ensure future viability of commercial shooting ranges. • Prohibits: The "submission, acceptance, processing or approval of any Jefferson County permit applications for any proposed use, development, proposal or project for the siting, construction or modification of any commercial shooting facility, during the period of development of an ordinance." • Commercial Shooting Facility: Defined as a "commercial facility having one or more shooting ranges that for use of the facility require a contract, charge a fee, or require membership." ■ September 10, 2018: The BoCC referred "harmonizing" UDC amendments to the Planning Commission. November 2, 2018: The BoCC adopted the Commercial Shooting Facilities Ordinance ("CSFO"). ■ November 19, 2018: The Planning Commission recommended a draft harmonizing ordinance to the BoCC. 12/10/2018 w�so� �o 02 two=�5 Reasons to harmonize the UDC to the CSFO 9SHLNG\ 1. Inconsistent definitions in the UDC. 2. Possible loopholes in small scale recreation and tourist uses (JCC 18.20.350(8)). a. Need to clarify small scale recreation and tourist uses. b. The current UDC defines an outdoor shooting range as "a facility specifically designed and used for safe shooting practice with firearms and/or archery practice, with individual or group firing positions for specific weaponry." c. `Small-scale is defined as "a size or intensity which has minimal impacts on the surrounding areas". Small-scale recreation or tourist use "means those isolated uses which are leisure or recreational in nature". d. The small scale recreation and tourist use's design standards are less stringent than those in the CSFO. 12/10/2018 v 5 Reasons to harmonize the UDC to the CSFO 9j11 NGI 3. The UDC's Use Table does not expressly permit indoor commercial shooting facilities. 4. The UDC's Use Table does not expressly permit outdoor commercial shooting facilities, but does permit "outdoor shooting ranges" that are a small scale recreation and tourist use. 5. Unnamed use loophole. 12/10/2018 tUnnamed Use Loophole • The UDC gives the UDC Administrator authority to review unnamed uses as an allowable use, conditional use, or prohibited use. For example, an outdoor commercial shooting facility not meeting the scale and intensity of small scale and tourist uses could be interpreted to be an unnamed use under the current UDC giving the Administrator discretion on its siting within zoning classifications. JCC 18.15.045 states "[t]his code recognizes that not every conceivable use can be identified and that new uses may evolve over time. Furthermore, it establishes the administrator's authority to review proposed `unnamed' uses for similarity with other uses listed in this code and to ensure consistency of the proposed use with the applicable district. When a use is not specifically listed in Table 3-1 ... it shall be reviewed as a discretionary `D' use by the administrator." JCC 18.15.040(2) establishes review criteria for siting unnamed uses. If the conditions for the discretionary use / unnamed use are not met then the UDC Administrator may require a conditional use permit or prohibit the use within the zoning classification. • Loophole implication --> This loophole may be used to argue that shooting facilities not meeting the scale and intensity requirements of the small scale recreation or tourist uses are an unnamed use and that the UDC Administrator has the authority to allow the use by -right or as a conditional use in all or certain zoning classifications. 12/10/2018 12/7/2018 KE v Approval Criteria for Conditional Uses — JCC 18.40.530 9j11 NGI ■ (a) The conditional use is harmonious and appropriate in design, character and appearance with the existing or intended character and quality of development in the vicinity of the subject property and with the physical characteristics of the subject property; ■ (b) The conditional use will be served by adequate infrastructure including roads, fire protection, water, wastewater disposal, and stormwater control; ■ (c) The conditional use will not be materially detrimental to uses or property in the vicinity of the subject parcel; ■ (d) The conditional use will not introduce noise, smoke, dust, fumes, vibrations, odors, or other conditions or which unreasonably impact existing uses in the vicinity of the subject ate; ■ (e) The location, size, and height of buildings, structures, walls and fences, and screening vegetation for the conditional use will not unreasonably interfere with allowable development or use of neighboring properties; 12/10/2018 tApproval Criteria for Conditional Uses — JCC 18.40.530 ■ (f) The pedestrian and vehicular traffic associated with the conditional use will not be hazardous to existing and anticipated traffic in the vicinity of the subject parcel; ■ (g) The conditional use complies with all other applicable criteria and standards of this code and any other applicable local, state or federal law; and more specifically, conforms to the standards contained in Chapters 18.20 and 18.30 JCC; ■ (h) The proposed conditional use will not result in the siting of an incompatible use adjacent to an airport or airfield; ■ (i) The conditional use will not cause significant adverse impacts on the human or natural environments that cannot be mitigated through conditions of approval; ■ (j) The conditional use has merit and value for the community as a whole; ■ (k) The conditional use is consistent with all relevant goals and policies of the Jefferson County Comprehensive Plan; and ■ (1) The public interest suffers no substantial detrimental effect. Consideration shall be given to the cumulative effect of similar actions in the area. 12/10/2018 8 12/7/2018 M v Nonconforming Uses —the Basics 9j11 NGI Nonconforming Uses—Defined A nonconforming use is a use that lawfully existed prior to a change in regulation. King Cty., Dept of Dev. & Envtl. Servs. v. King Cty., 177 Wash. 2d 636, 643, 305 P.3d 240, 244 (2013). The landowner has the burden to prove that (1) the use existed prior to the contrary zoning ordinance, (2) the use was lawful at the time, and (3) the applicant did not abandon or discontinue the use for over a year prior to the relevant change. Id. Despite that the use may no longer be permitted, it is allowed to continue due to the fairness and due process concerns of the landowner. Id. Nonconforming Uses—Property Rights Protected Under the Constitution Nonconforming rights, like vested rights, are considered to be a property right and interference with such rights could be subject to constitutional challenges in the same manner as any other land use action. Vesting and nonconforming rights, 36 Wash. Prac., Washington Land Use § 11:7. 12/10/2018 9 tNonconforming Uses — the Basics Nonconforming Uses—Intensification Is OK But Expansion is Not—This is Not Simple As time passes, a nonconforming property use may grow in volume or intensity. Keller v. City of Bellingham, 92 Wash.2d 726, 731, 600 P.2d 1276 (1979); Kitsap Cty. v. Kitsap Rifle & Revolver Club, 184 Wash. App. 252, 268, 337 P.3d 328, 335 (2014), amended on denial of reconsideration (Feb. 10, 2015). When an increase in volume or intensity of use is of such magnitude as to effect a fundamental change in a nonconforming use, courts may find the change to be proscribed by the ordinance. Intensification is permissible, however, where the nature and character of the use is unchanged and substantially the same facilities are used. The test is whether the intensified use is different in kind from the nonconforming use in existence when the zoning ordinance was adopted. Keller, 92 Wash.2d at 731, 600 P.2d 1276; Kitsap Cty. v. Kitsap Rifle & Revolver Club, 184 Wash. App. 252, 269, 337 P.3d 328, 335 (2014), amended on denial of reconsideration (Feb. 10, 2015). 12/10/2018 10 12/7/2018 10 v� Nonconforming Uses — JCC 18.20.260 9j�11 NGI� ■ (1) Nonconforming uses of land are uses which currently exist and were lawfully established prior to the enactment of this code. Legally established uses may continue as long as they remain otherwise lawful, provided: ■ (a) The nonconforming use of land is not discontinued or abandoned for a period more than two years. A property owner may be allowed three years if they demonstrate a bona fide intention to sell or lease the property. For purposes of calculating this time period, a use is discontinued or abandoned upon the occurrence of the first of any of the following events: ■ (i) On the date when the land was physically vacated; ■ (ii) On the date the use ceases to be actively involved in the sale of merchandise or the provision of services; or ■ (iii) On the date of termination of any lease or contract under which the nonconforming use has occupied the land. 12/10/2018 tNonconforming Uses — JCC 18.20.260 ■ (b) A legal existing nonconforming use can be expanded up to 10 percent subject to a Type I permit approval process. ■ (c) A nonconforming use may be expanded beyond 10 percent through the approval of a Type 11 C(d) discretionary conditional use permit process. In addition to meeting the criteria set forth through the conditional use permit process, the department shall determine the expansion proposal has met the following: ■ (i) The proposed area for expansion is contiguous to the nonconforming use; ■ (ii) The area for expansion of the use complies with all applicable bulk and dimensional standards, performance provisions, and environmental and shoreline (WAC 173-27- 080) regulations; ■ (iii) The area for expansion shall not increase the land area devoted to the nonconforming use by more than 100 percent of that use at the effective date of the nonconformance; ■ (iv) The expansion shall not be granted if it would result in a significant increase in the intensity of the use of the nonconformity (e.g., hours of operation, traffic). 12/10/2018 12 12/7/2018 M. SOV C Proposed UDC Amendments — Modifications to Small -Scale Recreation and Tourist Uses 9j11 NGI ■ Modifies definitions and terms to be consistent with the CSFO. ■ Updates definitions closing loopholes relating to vague terms. ■ Continues to be a Conditional Use in Commercial Forest (CF), Rural Forest (RF), and Inholding Forest (IF) zones. 12/10/2018 13 t Proposed UDC Amendments — UDC Use Table, Definitions, and Performance Standards. ■ Adds outdoor commercial shooting ranges as a Conditional Use in Rural Forest (RF), Commercial Forest (CF), and Inholding Forest (IF) zones only. ■ Adds indoor commercial shooting facilities as a Conditional Use in all zones, except agricultural resource lands (agricultural lands) and rural residential (RR 1-5-20). ■ Harmonizes definitions between the UDC and CSFO. ■ Adds design and use performance standards for commercial and non- commercial shooting facilities. 12/10/2018 14 12/7/2018 0 12/7/2018 v� Planning Commission — Process 9j�11 NGI� ■ September 19, 2018 and October 17, 2018: The Planning Commission held informational workshops on the draft ordinance. ■ October 24 until November 16, 2018: Public comment period during which DCD received 77 written comments. ■ November 7, 2018: The Planning Commission held a public hearing on the draft ordinance, receiving written and verbal testimony. 21 individuals testified during the public hearing. ■ November 19, 2018: ■ The Planning Commission deliberated on the draft ordinance, taking into account the record and public comment. ■ The Planning Commission voted to recommend the draft ordinance to the BoCC with modifications. 12/10/2018 15 Planning Commission Recommendations — Staff Recommendation — Definitions • Planninq Commission Recommendation: 18.10.010 A definitions should be amended to add a definition of armed forces as follows: "`Armed forces' means the armed forces of the United States or of the National Guard or organized reserves." Staff Recommendation: Staff does not recommend adopting this definition. This definition was added only to implement the Planning Commission's recommended additions in proposed new JCC 18.20.430. For the reasons discussed below staff does not recommend new JCC 18.20.430. This revision rises or falls with new JCC 18.20.430. • Planninq Commission Recommendation: 18.10.160 P definitions should be amended to add a definition for paramilitary organization as follows: "`Paramilitary organization' means a semi - militarized force whose organizational structure, tactics, training, subculture, and function are similar to those of the armed forces, but which is not included as part of a the armed forces. Staff Recommendation: Staff does not recommend adopting this definition. This definition was added only to implement the Planning Commission's recommended additions in proposed new JCC 18.20.430. For the reasons discussed below staff does not recommend new JCC 18.20.430. This revision rises or falls with new JCC 18.20.430. 12/10/2018 16 12/7/2018 <Planning Commission Recommendations — Staff Recommendation — Design and Use Standards in New JCC 18.30.430 9j11 NGI ■ Planning Commission Recommendation: Organizational training for armed forces, law enforcement or paramilitary organizations is prohibited at any commercial shooting facility or any non-commercial shooting facility. Staff Recommendation: Staff does not recommend limiting shooting facilities from providing organizational training, within appropriate limitations through the SEPA and CUP process and other applicable regulations. ■ Planning Commission Recommendation: All outdoor shooting at a commercial shooting facility must occur only between the hours of 8 a.m. and 5 p.m. Staff Recommendation: Staff does not recommend preempting the SEPA and CUP process by prescriptively limiting the hours of operations without taking all factors, such as noise studies, design criteria, proposed operations, etc. into consideration during the SEPA and CUP process. Staff recommends that hours of operation be addressed during the SEPA and CUP process. 12/10/2018 17 sO�. Planning Commission Recommendations — Staff Recommendation — Design and Use Standards Continued ■ Planning Commission Recommendation: (3) It is unlawful to land any aircraft at a commercial shooting facility or to discharge firearms from an aircraft or drone at any commercial shooting facility. Staff Recommendation: Staff does not recommend this limitation. Aircraft movements are generally regulated by the federal government, through the Federal Aviation Administration. However, the SEPA and CUP process may provide for more local control of aircraft and their movements, such as prohibiting the use, providing limitations on the use (e.g., limiting to emergencies, limiting number of movements, etc.), or limiting the siting of aircraft movements. Staff recommends that aircraft movements be addressed during the SEPA and CUP process. 12/10/2018 18 12/7/2018 SOV C Planning Commission Recommendations — Staff Recommendation — Design and Use Standards Continued 9j�11 NGI ■ Planning Commission Recommendation: (4) Commercial shooting facilities in Jefferson County must provide a 500 -yard buffer around any lake greater than 20 acres in size. Staff Recommendation: Staff does not recommend this limitation: First, this recommendation probably is preempted by RCW 9.42.290 because it essentially creates a no shooting area without following the requirements in RCW 9.41.300. Second, the lakes 20 acres or greater in size are subject to Shoreline Management Act (SMA) and the Jefferson County Shoreline Master Program (SMP). RCW 90.58.020. The Planning Commission's proposed language overlaps with regulation in the Jefferson County Shoreline Master Program (SMP), which was written to comply with the Shoreline Management Act (SMA). Third, staff is not aware of any rational basis for the selection of 500 -yards for the setback. 12/10/2018 19 sO�. Planning Commission Recommendations — Staff Recommendation — Design and Use Standards Continued Overall Staff Recommendation on Proposed New 18.20.430: ■ Staff does not recommend adopting additional siting, design, or operational limitations beyond existing laws. ■ The existing, time -tested and current SEPA and CUP regulations provide a robust process for siting new uses taking into account a wide variety of approval criteria. 12/10/2018 20 v� Additional Staff Recommendations 9j�11 NGI� Staff Recommendation: Staff recommends the following additional changes for consistency with the CSFO and to ensure one standard: 1. Change "outdoor shooting ranges" to "outdoor shooting facilities," but redefine it as follows: "'Outdoor shooting facility' means any use that includes a shooting range whether or not it is an outdoor commercial shooting facility. However, outdoor shooting facility does not include shooting ranges that do not meet the exceptions for a commercial shooting facility in JCC 8.50.220(15)(a) or (b)." 2. Revise JCC 18.20.170 and JCC 18.20.200 to eliminate potential loopholes for home businesses and cottage industries; 3. Change "outdoor shooting range" to "outdoor shooting facility" in Table 3-1, the use table. 4. Delete JCC 18.20.350(8) from Title 18 JCC, so there is one standard for outdoor shooting facilities, whether they qualify as commercial Thooting facilities or not. This option addresses the concern that having a separate land use category for a non-commercial shooting facility with a different set of standards in JCC 18.20.350(8) invites efforts to evade the more comprehensive standards of the new Article III, of Chapter 8.50 JCC and invites litigation because there would be inconsistent standards for organized shooting ranges. 12/10/2018 21 tAdditional Staff Recommendations Staff Recommendation: Staff recommends against a period of repose (e.g., break or day of silence). ■ Staff does not recommend preempting the SEPA and CUP process by prescriptively limiting the hours of operations without taking all factors, such as noise studies, design criteria, proposed operations, etc. into consideration during the SEPA and CUP process. Staff recommends that hours of operation be addressed during the SEPA and CUP process. ■ The current CUP process in Title 18 JCC, along with the SEPA process, is the best way to deal with facility siting issues. In particular, SEPA will require mitigation of noise before any new commercial shooting facility can be built. The approval criteria for all conditional uses contained in Title 18 JCC require, among other things, that: "The conditional use will not introduce noise, smoke, dust, fumes, vibrations, odors, or other conditions or which unreasonably impact existing uses in the vicinity of the subject parcel." JCC 18.40.530(d). ■ Staff can find no rational basis for such a provision that does not violate RCW 9.41.290. 12/10/2018 22 12/7/2018 THE END 12/10/2018 12/7/2018 12