Memorandum

City of Lawrence

TO:	Mayor and City Commission
FROM:	David L. Corliss,  Interim City Manager
Date:	March 22, 2006
RE:	Cypress Park Addition –  Legal Challenge to De Novo  Review

When the City Commission considered the acceptance of the dedication of easements and rights-of-way (PF-11-43-05) for the Final Plat for Cypress Park Addition, the item was deferred for review of the issue of De Novo  review.

Background

The property is generally described as being located at 1801 Learnard Avenue.  This proposed five-lot single-family residential subdivision contains approximately 2.229 acres.  On July 25, 2005, the Planning Commission denied the Cypress Park Addition Preliminary Plat [PP-06-15-05].  On November 8, 2005, the City Commission approved the Preliminary Plat for Cypress Park Addition [PP-06-15-05] through a de novo hearing as requested by the applicant.  The relevant portion of the City’s subdivision regulations provides:

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)

On December 12, 2005, the Planning Commission concurred with the de novo approval of the Preliminary Plat [PP-06-15-05] by the City Commission.  On January 23, 2006, the Planning Commission approved the plat.

Analysis

Staff believes that the procedure for the City Commission de novo hearing was lawful under both the City Code and the applicable State law.  There is no State law governing the consideration and approval of preliminary plats, the applicable State law governs the consideration and approval of plats, which we interpret to mean the Final Plat.  The State enabling law for planning and zoning (K.S.A. 12-741) specifically allows a city to adopt “additional laws and regulations on the same subject which are not in conflict with the provisions of this act.”  We have interpreted our preliminary plat code provisions as not in conflict with the State enabling statute, and we also believe that the City Commission’s authority to conduct a de novo  review of a preliminary plat matter is not in conflict with the State law.  We do believe that a  de novo  hearing on a final plat would be more susceptible to a legal challenge on the basis that only the Planning Commission has approval authority for a final plat – the instrument actually subdividing property in conformance with the subdivision regulations. That was not the review or hearing in the Cypress Park plat issue.

In my review of this matter I have consulted with Stephen Chinn who is assisting the City in drafting the joint City/County subdivision regulations.   The draft subdivision regulations do not contain the de novo hearing provisions.