To:
Lawrence City Commission
From: Patricia Sinclair
Re: PF-11-43-05: Final Plat for Cypress Park Addition, Reg. Agenda
Item 2
Date: February 16, 2006
Below are remarks which I submitted to the Planning Commission before they
considered this item in January. Of course, they were powerless to
reverse your decision. My main concerns here are whether that course of
action of the de novo appeal was legal and the fact that the City Commission
approved this project without any of the conditions which had been considered
by the Planning Commission. Also, the developer, Peridian Group, has
given such a disappointing result in terms of meeting the conditions of
approval for The Woods on 19th, that I am skeptical about this plan.
I am a twelve-year homeowner at 331 Johnson Ave. within the notification zone for the
Cypress Park Addition. I submitted comments opposing the current plan and
plat prior to the July
25, 2005
Planning Commission meeting. I continue to oppose both the plat and the
procedure that has ensued since that meeting.
I believe that it is within your power to deny this Final Plat if you believe
that it was not properly approved, does not comply with our zoning and planning
requirements and plan, is not a complete or final submission, or was brought to
this point through erroneous procedures in violation of the city code and/or
the Kansas Statutes.
1. This plat was reconsidered by the Lawrence City Commision on November 8, 2005 under a portion of the
city code titled 21-801 Appeals.
It is my belief that this de novo hearing may not be supported by the Kansas
Statutes. It comes from Ordinance 5257 dated 1981 and the Kansas Statutes
on planning and zoning have been revised considerably since that time. I
have been told that this piece of city code is scheduled to be removed in the
revised city code.
21-801. APPEALS.
The subdivider of a proposed subdivision may appeal to the governing body
decisions made in the enforcement or interpretation of these regulations by the
planning department, planning commission or the appropriate engineer. Any
such appeal shall provide a hearing de novo. In the event the governing
body sustains such decisions, the prior enforcement or interpretation shall be
final, except as otherwise provided by law. If the governing body
overrules the planning commission, the governing body shall state its decision,
and the reasons therefor, in writing, and submit the decision and plat to the
planning commission, seeking concurrence. In case of nonconcurrence, the
decision of the appropriate governing body shall be final. (Ord. 5257)
KSA 12-752 outlines the process for plat approval and states in (e) No building
or zoning permit shall be issued for the use or construction of any structure
upon any lot, tract or parcel of land located within the area governed by the
subdivision regulations that has been subdivided, resubdivided, or replatted
after the date of the adoption of such regulations by the governing body or
governing bodies but which has not been approved in the manner provided by this
act.
(KSA 12-752 is attached.)
2. Even if 21-801 were a legal part of the city code, it is extremely
vague and sets no timeframe for an appeal. It is my opinion that this
code was intended for very specific appeals of a legal nature, challenging, for
example, an interpretation such as how days were counted or places
measured. It should require that the applicant submit a precise reason
for the appeal which would relate to the alleged improper interpretation or
enforcement of the existing city code by the Planning Commission, an engineer,
or an employee such as a planning department employee. It does not
appear to allow for a de novo hearing merely requesting a new hearing because
it didn't like the Planning Commission's decision. As in any legal
procedure, the applicant should have stated where exactly he alleges that there
was an error in the interpretation or enforcement of the city code.
21-801 does not state that it is a process whereby the City Commission can
overturn the decision of the Planning Commission in allowing or disallowing a
proposed subdivision. When it comes to rezoning, the process whereby the
City Commission can overrule the Planning Commission is clearly spelled out in
the zoning section of the city code.
3. Most appeals are outlined precisely in the city code and often involve
a short timeframe for appeal. An appeal to the district court seems to be
the common process unless a matter goes to the BZA.
With regard to planning and zoning, KSA12-760 states "Same; appeals to
district court. (a) Within 30 days of the final decision of the
city or county, any person aggrieved thereby may maintain an action in the
district court of the county to determine the reasonableness of such final
decision. (b) The provisions of this section shall become effective
on and after January
1, 1992."
If this, in fact, applies to this situation, then the applicant should have
appealed to the district court rather than to the City Commission.
4. In accepting and in hearing a de novo appeal, the City Commission should
have required that the precise error or area of the decision under appeal be
stated. Their debate should have centered on that area and their
conclusions and decision should have been rendered to address the perceived
grievance and error in the correct application of the city code and
process. The City Commission was also required to state the reasons for
their decision and submit them to you, the Planning Commission. I do not
see any evidence of that in reading the minutes, only the minutes of the City
Commission exist as a statement of their reasons for reversal, and they do not
seem to address an error as perceived by the majority.
5. Although I am a homeowner in the notification zone, I received only a
notification letter for the July 25, 2005 Planning Commission meeting to
consider the Preliminary Plat and one for the upcoming January 23, 2006
Planning Commission meeting to consider the Final Plat. Thus, I was not
notified and had no prior knowledge of the de novo hearing scheduled for November 8, 2005 at the City
Commission. I also was not notified of and had no prior knowledge of the December 12, 2005 Planning Commission
meeting which considered the plat as approved by the City Commission.
This lack of notification appears to be contrary to the procedures outlined in
the city code for planning and zoning. How is it possible that I am
required to receive notice when a subdivision request appears before the
Planning Commission but not when that same item appears before the City
Commission (and the Planning Commission afterward)?
6. The City Commission has approved and forwarded to you a plat with no
additional conditions addressing the concerns that were expressed by the
Planning Commission last July (6 to 1 to deny) or the members of the
public. In fact, this plat disregards many areas required by our planning
code. Does the de novo hearing allow the City Commission to decide
matters ordinarily considered by the Planning Commission without regard for our
code and plan?
7. One key area of concern is drainage. It is clear from the
Stormwater Engineer's comments that this plan is not okay as presented. A
final plat should address all of the concerns raised by department heads and
should follow the city code. If there are plans to change the drainage
plan, then the Final Plat should not be submitted for approval until those
plans are completed.
In part, his remarks which you have state in part: "1. Please
resubmit the drainage study matching the current proposed development
layout. Verify that the proposed detention concept works with the road
crossing elevation downstream. Verify that the controlled area actually
will reach the basin. 2. The downstream neighborhood does not have
adequate drainage paths. It is critical that this development provide control
of runoff. The proposed detention concept should be modified to also
direct the Learnard
Avenue northwest
roadside ditch through the detention basin. 3. The final plat dated
11-17-05 cannot be reviewed
based on the status of drainage study." There is more, including a
concern that utility lines and services will not cross the proposed drainage
easements.
As of yesterday, these concerns had not been addressed with planning.
Drainage is very fragile in our neighborhood. The open ditches on
Learnard are not maintained and do not tie in to a total drainage system.
Rain water rushes down Johnson to Learnard, at least at curb height, with
nowhere to go but these ditches or property. Often water stands along the
roadside where no ditches exist. The floodplain is very close and the
land flat.
8. There is a nonconforming building on the property, euphemistically
called a barn. This oversized structure appears to have finished space above
and large truck bays below and seems to have served the property owner's
construction business which has operated, contrary to code, in this
residentially zoned neighborhood. This is not an old quaint
structure. Last summer Neighborhood Resources was unable to furnish me
with details about this building and any building permit that might have been
furnished for its construction. I have not been able to find anybody who
has inspected this building or has specifics about it, yet it appears it will
be allowed as a nonconforming use.
9. I concur with those who have raised concerns about flaglots. It
seems that the requirement for a boundary on a public street is being met by
what is essentially a driveway with ROW on each side. These drives are
shown as the property of one lot and yet must be shared in order for all
properties to access Learnard. This seems to be the equivalent of a
private road and not allowed.
This entire project appears to ask for exception after exception to the
required planning procedures, rules, and the city plan itself. This does
not seem like good, or modern, planning.
10. The developer's claim to have contacted and met with the neighbors is
false. He has never contacted me about this project and only neighbors or
Lawrence residents in favor of
this plan spoke at the City Commission hearing. Of those, a number were
not in the notification zone and cannot see the project. Another
lives in another neighborhood where she reportedly opposed an expansion of the
Lawrence Catholic Center according to the Lawrence Journal World "It
is an imposition into our single-family-zoned neighborhood," said Faye
Watson, who lives a block down the street. "This is not a matter of
religion. It's a matter of zoning, neighborhood integrity."
I am particularly concerned with the lack of the developer's contact with
Andrea McMurray whose property backs up to the retention pond and already
floods from runoff. She sent her opposition to you in July and I assume
she continues to oppose this project as Steve Standing did not show her in favor of it.
11. As a homeowner who was drawn to the Barker neighborhood for its
country like feel and mix of modest and large lots, I am saddened by the
prospect of increased infill development which changes the very character of
our neighborhood. Perhaps this plan will be the best that we can get and
others might be worse. That seems to be the threat that is often used to
get neighbors to agree to a plan.
That was used in our neighborhood by this same developer, the Peridian Group,
to try to get agreement to rezoning and the development of "The
Woods" on 19th
Street.
That project was built, much more densely than agreed at the time of the
Preliminary Plat, with promised pedestrian access routes blocked, with most
woods leveled, and with no public park as promised. These same developers
talked of building homes there that would be suitable for disabled owners, but
that never took place. Again, we hear talk of being "handicapped
accessible" which merely means that a person in a wheelchair can gain
access, not that it would be designed for wheelchair or other disabled living.
There just seem to be too many oddities, non-conformities, and a lack of
addressing the drainage problems or really meeting with the neighbors. I
also find no reassurance that five lots will not become 10 or more on an ad hoc
basis.
It is my hope that now and in the future, the Planning Commission will consider
trying to preserve our very unique Barker neighborhood. It is fragile and
is being chipped away with increased commuter traffic, changing residential
streets from collector to arterial, new zoning pending, closure of schools,
depletion of natural resources, and the lack of public recreational or natural
areas. Infill development may seem attractive, but it can be the death of
an inner city neighborhood as we know it.
Thank you.
12-752
Chapter 12.--CITIES AND MUNICIPALITIES
Article 7.--PLANNING AND ZONING
12-752.
Same; plats; approval procedure; fees; dedication of land for public
purposes; filing of plat; replatting required, when. (a) The owner or
owners of any land located within an area governed by regulations subdividing
the same into lots and blocks or tracts or parcels, for the purpose of laying
out any subdivisions, suburban lots, building lots, tracts or parcels or any
owner of any land establishing any street, alley, park or other property
intended for public use or for the use of purchasers or owners of lots, tracts
or parcels of land fronting thereon or adjacent thereto, shall have a plat
drawn as may be required by the subdivision regulations. Such plat shall
accurately describe the subdivision, lots, tracts or parcels of land giving the
location and dimensions thereof and the location and dimensions of all streets,
alleys, parks or other properties intended to be dedicated to public use or for
the use of purchasers or owners of lots, tracts or parcels of land fronting
thereon or adjacent thereto. All plats shall be verified by the owner or owners
thereof. All such plats shall be submitted to the planning commission or to the
joint committee for subdivision regulation.
(b) The planning commission or the joint committee shall determine
if the plat conforms to the provisions of the subdivision regulations. If such
determination is not made within 60 days after the first meeting of such
commission or committee following the date of the submission of the plat to the
secretary thereof, such plat shall be deemed to have been approved and a
certificate shall be issued by the secretary of the planning commission or
joint committee upon demand. If the planning commission or joint committee
finds that the plat does not conform to the requirements of the subdivision
regulations, the planning commission or joint committee shall notify the owner
or owners of such fact. If the plat conforms to the requirements of such
regulations, there shall be endorsed thereon the fact that the plat has been
submitted to and approved by the planning commission or joint committee.
(c) The governing body shall accept or refuse the dedication of
land for public purposes within 30 days after the first meeting of the
governing body following the date of the submission of the plat to the clerk
thereof. The governing body may defer action for an additional 30 days for the
purpose of allowing for modifications to comply with the requirements
established by the governing body. No additional filing fees shall be assessed
during that period. If the governing body defers or refuses such dedication, it
shall advise the planning commission or joint committee of the reasons therefor.
(d) The governing body may establish a scale of reasonable fees to
be paid to the secretary of the planning commission or joint committee by the
applicant for approval for each plat filed with the planning commission or
joint committee. (e) No
building or zoning permit shall be issued for the use or construction of any
structure upon any lot, tract or parcel of land located within the area
governed by the subdivision regulations that has been subdivided, resubdivided
or replatted after the date of the adoption of such regulations by the
governing body or governing bodies but which has not been approved in the
manner provided by this act.
(f) Any regulations adopted by a governing body with reference to
subdividing lots shall provide for the issuance of building permits on platted
lots divided into not more than two tracts without having to replat such lots.
Such regulations also may authorize and establish conditions for the issuance
of building permits on lots divided into three or more tracts without having to
replat such lots. Such regulations shall provide that lots zoned for industrial
purposes may be divided into two or more tracts without replatting such lot.
Such regulations shall contain a procedure for issuance of building or zoning
permits on divided lots which shall take into account the need for adequate
street rights-of-way, easements, improvement of public facilities, and zoning regulations
if in existence. (g) The
regulations shall provide for a procedure which specifies a time limit within
which action shall be taken, and shall further provide, where applicable, for
the final decision on the issuance of such building permit to be made by the
governing body, except as may be provided by
law. (h) The register of deeds
shall not file any plat until such plat shall bear the endorsement hereinbefore
provided and the land dedicated for public purposes has been accepted by the
governing body. History:
L. 1991, ch. 56, § 12; L. 1997, ch. 147, § 5; May 1.
