March 28, 2006
The Board of Commissioners of the City of Lawrence met in regular session at 5:30 p.m., in the City Commission Chambers in City Hall with Mayor Highberger presiding and members Amyx, Hack, Rundle, and Schauner present.
It was then moved by Schauner, seconded by Hack, to recess into executive session for the purpose of discussion of non-elected personnel matters until 6:15 p.m. The justification for the executive session was to keep personnel matters confidential. Motion carried unanimously.
The Commission returned to regular session at 6:15 at which time it was moved by Schauner, seconded by Rundle, to recess until 6:35. Motion carried unanimously.
The Mayor called the meeting back to order at 6:35 p.m.
RECOGNITION/PROCLAMATION/PRESENTATION
With Commission approval Mayor Highberger proclaimed the month of April, as “Mathematics Awareness Month”.
Mayor Highberger recognized the members of the Public Advisory Committee.
CONSENT AGENDA
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to approve City Commission meeting minutes from March 7, 2006 and March 14, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to receive the Parks and Recreation Advisory Board meeting minutes of February 14, 2006; Historic Resources Action Summary meeting minutes of March 16, 2006; the Public Transit Advisory Committee meeting minutes of December 13, 2005; the Traffic Safety Commission meeting minutes of March 6, 2006; the Sister Cities Advisory Board meeting minutes of February 8, 2006; the Planning Commission meeting minutes of January 23, 2006 to January 25, 2006; the Public Health Board meeting minutes of January 23, 2006; and the Board of Electrical Examiners & Appeals meeting minutes of July 6, 2005. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to confirm the study session summaries from March 9, 2006, and March 15, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to approve claims to 516 vendors in the amount of $3,142,246.58 and payroll from March 5, 2006 to March 18, 2006, in the amount of $1,610,411.94. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to approve the Drinking Establishment Licenses for Papa Kenos Pizzeria, 1035 Massachusetts; Chipotle Mexican Grill, 4000 West 6th Street, Suite 1; El Mezcal Restaurant II, 804 Iowa Street; and the Cereal Malt Beverage License to Pepperjax Grill, 947 New Hampshire. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to concur with the recommendation of the Mayor and appoint Daniel Beebe and Larry Frost to the Board of Electric Examiners and Appeals, to a term which will expire March 31, 2009; appoint Jody Meyer to the Historic Resources Commission, to a term which will expire March 1, 2009; appoint Jim Dick to the Housing Needs Task Force; appoint Kathleen Morgan to the Lawrence Public Library Board, to a term which will expire April 30, 2007; and appoint Jim Sparkes to the Mechanical Code Board of Appeals, to a term which will expire March 31, 2009. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to set a bid date of April 11, 2006, for Phase II of the Downtown Waterline Improvement Project. Motion carried unanimously. (1)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to set a bid date of April 11, 2006, for 2006 Overlay and Curb Repair Program, Phase 2. Motion carried unanimously. (2)
The City Commission reviewed the bids for 2006 Overlay Program Phase 1, Street Improvements, to Public Works. The bids were:
BIDDER BID AMOUNT
Engineer’s Estimate $1,100,431.15
LRM Industries, Inc. $947,630.60
Asphalt Improvement, Co. $995,657.60
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to award the bid to LRM Industries, Inc, in the amount of $947,630.60. Motion carried unanimously. (3)
The City Commission reviewed the bids for contract mowing for the Utilities Department. The bids were:
BIDDER BID AMOUNT
Wastewater Treatment Plant
Harrell Lawn Care $13,180.30
Tom’s Mowing $14,520.00
KH Landscaping $16,400.00
Vernon Heine $17,990.00
Outdoor Art $18,620.00
Cut-N-Edge $19,950.00
Dupree Landscaping $25,550.00
Yard Barber $33,370.00
Lift Stations
Outdoor Art $7,420.00
Harrell Lawn Care $11,069.00
Tom’s Mowing $11,150.00
Vernon Heine $11,550.00
Russell Hopping $12,730.00
KH Landscaping $15,700.00
Dupree Landscaping $19,030.00
Cut-N-Edge $19,790.00
Water Treatment Plants
Vernon Heine, (Clinton Water Plant Only) $3,600.00
Tom’s Mowing $13,400.00
KH Landscaping $13,400.00
Outdoor Art $13,610.00
Harrell Lawn Care $14,690.00
Russell Hopping $16,300.00
MR Mowing $17,309.80
Yard Barber $22,950.00
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to award the bid to Harrell Lawn Care for Wastewater Treatment Plant, in the amount of $13,180.30, to Outdoor Art for Lift Station, in the amount of $7,420.00, and to KH Landscaping for Water Treatment Plant, in the amount of $13,400.00, totaling $34,000.30. Motion carried unanimously. (4)
The City Commission reviewed the bid for the purchase of one backhoe for the Public Works Department. The bid was:
BIDDER BID AMOUNT
Murphy Tractor Co. $28,715.89
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to award the sole bid to Murphy Tractor Co., in the amount of $28,715.89. Motion carried unanimously. (5)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to authorize the City Manager to execute an agreement with Utility Maintenance Contractors, LLC for $459,102 to complete the 2006 Cured-in-Place-Pipe (CIPP) Program. Motion carried unanimously. (6)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to authorize the City Manager to negotiate an Engineering Services Agreement with Walter P. Moore Engineers to assess the condition of buildings at the Kaw Wastewater Treatment Plant. Motion carried unanimously. (7)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to approve the purchase of five (5) busses for the University of Kansas Park and Ride Bus System from Optima Bus Company totaling $1,348,005, with the University of Kansas Paying 20% of the purchase price and the remaining 80% to be paid by the Federal Transit Administration Funds. Motion carried unanimously. (8)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to place on first reading Ordinance No. 7981, rezoning (Z-12-81-05) 2.19 acres from RM-3 (Multiple Family Residential) District to RM-1 (Multiple-Family Residential) District, generally described as being located south of West 7th Street, east of Wisconsin Street. Motion carried unanimously. (9) As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to place on first reading Ordinance No. 7982, rezoning (Z-10-67-05A) 1.22 acres from RM-1 (Multiple Family Residential) District to RS-2 (Single-Family Residential) District, generally described as being located at 446 Florida, 1500 and 1508 west 5th Street. Motion carried unanimously. (10)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to concur with the Traffic Safety Commission’s recommendation to establish “no parking” along the south side Century Drive between Crestline Drive and Madeline Lane. Motion carried unanimously. (11)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to concur with the Traffic Safety Commission’s recommendation to establish no parking along the east side of the 600 Block of Connecticut Street. Motion carried unanimously. (12)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to place on first reading, Ordinance No. 7987, establishing “no parking” along the south side of Century Drive between Crestline Drive and Madeline Lane, and establish no parking along the east side of the 600 Block of Connecticut. Motion carried unanimously. (13)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, receive benefit district requests from Southwind Capital, LLC, for the following benefit districts: K-10 West bound turn lane (existing benefit district); East 23rd Street east-bound decel lane; roundabout at O’Connell Road and 25th Street Terrace; East 25th Street Terrace from O’Connell Road to Franklin Road; and refer to staff to draft a resolution. Motion carried unanimously. (14)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to authorize the City Manager to execute a lease extension with Riverfront LLC for the office space at the Riverfront Plaza facility until December 31, 2007, in the amount of $5,650. Motion carried unanimously. (15)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to approve the addition of a 6’ sidewalk to North Michigan Street bridge over the Kansas Turnpike Authority on the west side, and direct staff to prepare a cooperation agreement with the Kansas Turnpike Authority for additional scope of work and construction costs. Motion carried unanimously. (16)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to authorize the execution of contract for the sale of 1.1 acres of City property adjacent to the First Serve Tennis complex, 5200 Clinton Parkway, for $26,000. Motion carried unanimously. (17)
As part of the Consent Agenda, it was moved by Schauner, seconded by Amyx, to authorize the distribution of Request for Proposals for the Financial Advisory consultant services. Motion carried unanimously. (18)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to authorize the Mayor to sign a Release of Mortgage for Sharen Edmonds, 1808 W. 22nd Street. Motion carried unanimously. (19)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to authorize the City Manager to enter into an encroachment agreement with the Lawrence Community Nursery School, 645 Alabama Street, for the use of City street right-of-way. Motion carried unanimously. (20)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to approve closure of certain city streets on May 14th for the 2006 USA Cycling Collegiate Road Championship Criterium Race. Motion carried unanimously. (21)
As part of the consent agenda, it was moved by Schauner, seconded by Amyx, to receive update on the status of the unsafe structure at 429 Indiana Street. Motion carried unanimously. (22)
Price Banks, Lawrence, pulled the adoption of Resolution 6628 from the consent agenda for separate discussion. He asked the City Commission to reconsider its position on the Kasold Drive improvements. The project costs had gone up to $5.2 million dollars which was an increase of over 44% from the original 3.7%. A good portion of that increase was due to the trenching of Kasold and the building of the industrial type retaining wall and fences that would prevent any of the adjacent neighbors on the west from having access to the unprecedented 11 foot wide sidewalk or recreational path that was approved by the City Commission. He said at one time they were told that it would cost $60,000 for design changes and he was told there were design changes frequently. He said recently, he had heard that the City intended to move the eastern curbs further to the west and the destruction went on and on. Again, he asked the City Commission to reconsider the design of the project, save the City substantial funds, and shorten the timeline of the project.
Mayor Highberger said the item before the City Commission was to consider authorization of condemnation of property interest for the improvement of Kasold Drive and not a decision on the construction details. He said he felt comfortable with moving forward since Banks had a chance to make a case on why it should be considered.
Vice Mayor Amyx asked if the project would be back before the Commission soon.
David Corliss, Interim City Manager, said next week the City Commission would be receiving staff’s recommendation on the bids the City received and the Commission would have the opportunity of looking at the project costs to determine whether or not to proceed with the project.
Mayor Highberger asked by adopting the proposed resolution , it did not mean that something would happen next week. He said the City Commission would have the opportunity to determine whether or not to proceed.
Corliss said that was correct. He said the City Commission’s next action regarding obtaining property interests, would be to adopt an ordinance authorizing the condemnation. He said after that ordinance was adopted on second reading and published the City Commission still had the option of not proceeding with the condemnation. The key concern next week would be whether to waive the engineer’s estimate, accepting the bids, and authorizing proceeding with the project if that was the Commission’s desire.
Moved by Schauner, seconded by Hack, to adopt Resolution No. 6628, authorizing the condemnation of necessary property interests for the improvement of Kasold Drive from Bob Billings Parkway south to 22nd Street. Motion carried unanimously. (23)
CITY MANAGER’S REPORT:
David Corliss, Interim City Manager, said the City was proud of the work that various City crews were involved in regarding the removal of tree and other woody debris from this community in response to the windstorm that took place two weeks ago.
He also informed the City Commission of the on-line Advisory Board volunteer database that would allow the community to register their interests in various City boards and Commissions. That database would help the Mayor keep track of information to make decisions and have additional discussions with interested citizens serving in the City’s 40 plus Boards and Commissions. (24)
REGULAR AGENDA ITEMS:
Consider adopting on first reading Ordinance No. 7985, for the Text Amendment, TA-10-05-04: Development Code, November 11, 2005 Edition (PC Item No. 10; approved 9-0) and Ordinance No. 7986, for Z-10-49-04: Zoning Map, November 11, 2005 Edition (PC Item No. 11; approved 9-0).
Sheila Stogsdill, Acting Planning Director, presented the staff report. She said the Commission had before it two unanimous recommendations from the Planning Commission. The development code discussion from the February 22, 2006, Planning Commission staff report gave a history on the development code going through key points. This issue was before the City Commission on February 2005 and staff had highlighted in the staff report, the specific issues that staff had tried to address from that November 2004 version.
In the staff report, staff had identified a number of additional clarifications or revisions that staff had considered along with legal staff, specifically to address additional public comment. A number of those revisions were numerous and what staff had recommended to the Planning Commission was that they adopt the November 11th, 2005 version which was published and staff would make a recommendation to the City Commission that that would be approved with a delayed effective date of July 1, 2006. The Planning Commission took public comment, discussed a number of those revisions, and made that recommendation with the intent that they would have additional revisions to the City Commission to be adopted before July 1st. The Planning Commission, two weeks after that meeting, had a 3 hour morning meeting to discuss all of those additional revisions and suggested language that staff had provided and those were scheduled for a public hearing on April 19th.
Mayor Highberger asked Stogsdill to review the matters that were being deferred and that would be before the Planning Commission in April.
Stogsdill said there was alternative language on the retail market impact analysis and this version the City Commission was being asked to adopt included language that was prepared by the consultant and provided the authorizing language to implement what was in Horizon 2020. In April, there would be alternate language that would be considered that was drafted by an ad hoc committee of the Planning Commission and also some abbreviated alternate language from staff which was one of the largest changes. There were numerous changes that were simply clarifications or typos. Staff had grouped those changes on the Planning Commission agenda in 7 related groups. There were also changes to the RMG District related to the purpose and the fact that it required an SUP instead of a site plan for conversion and staff tried to group those additional revisions that were related and might potentially have separate public comment.
Vice Mayor Amyx asked if the items that would come back to the Commission would come back in such a way that the Commission would vote on them separately or would consider them all at once.
Stogsdill said on the April agenda, they had text amendments, “a” through “i”, that were subsets of those overall text amendments. She said that there were 80 separate changes and 60 of those changes were all related to the clarification issue and the others were specifically the retail impact analysis language and RMG purpose language. They were each separate so that if the Planning Commission or the City Commission chose to study this issue more, the majority of those changes could move forward and delay the changes that needed to be further addressed.
Stogsdill said a series of zoning maps were posted on the City’s website. She said the overall zoning map represented the zoning for all of the properties that would automatically convert based on the table in Section 20-110E of the Development Code. She said, for example, if a property was zoned RS-1, it automatically converted to RS-10. In addition, there were a number of special maps that dealt with the special purpose, base districts that were new in the code. Those would be the GPI District, the OS District, the UKU District, the H, UR and the existing Planned Unit Development designations of PRD, PCD, PID and the existing PUD overlay districts for the older PUD’s which were Alvamar, Deerfield, Four Seasons, Heatherwood, Hills West, Holiday Hill 7, Holiday Hill 10, Meadowbrook, and Parkmoore.
She said there were also some individual rezonings. In the current code, there was a CP zoning district which was Commercial Parking, but that type of district did not appear in the new code, therefore, there were 12 parcels that were specifically identified to be rezoned to the same classification as the commercial properties that they served. She said they also had a new addition, the 38 fraternity and sorority parcels that were zoned RD would be zoned RMG (Greek Housing District). She said there were also numerous neighborhood rezonings which the Commission saw in February 2005, which looked at a number of the older neighborhoods that had less than 7,000 square foot lots. She said staff had identified areas where at least 4 blocks in size that could be rezoned to RS-5, which would make those lots as “conforming lots” as opposed to their current non-conforming status. She said those were portions of Barker, Breezedale, Brookcreek, Centennial, East Lawrence, North Lawrence, Old West Lawrence, Oread, Pinckney, Sunset Hills, and University Place Neighborhoods.
Patricia Sinclair, Lawrence, said her remarks were primarily about the rezonings. She wanted to address the rezoning in the Barker Neighborhood which would be rezoned from RS-2 to RS-5. She read from prepared remarks, “Homeowners should receive individual notification of an intent to rezone property per city code unless it is a general revision of the zoning map. Such a general revision would cause all like properties to have the same rezoning. This is not the case here. All RS-2 properties in Barker or in the city are not being rezoned to RS-5, only selected ones of unspecified size. Their shared attribute, apparently, is that they are less than 7,000 sq. ft.
I have not received formal notification by the city that my property is due to be rezoned.
I have protested this rezoning on the basis that it creates a much smaller required lot and frontage than exists in many of these properties. It does not attempt to create a zoning which reflects the actual size of the nonconforming lots. My lot is very close to RS-2 requirements and much larger than RS-5.
This rezoning would, as acknowledged by staff, create more infill within an established older neighborhood and allow it to be much more closely built than it is currently.
Staff's claims that inquiries about this rezoning have been answered are not accurate. I have inquired for over one year about what would happen if my house were destroyed and I wanted to rebuild under the current zoning, RS-2, with it being non-conforming. I received a partial oral answer from Linda Finger at the "presentation" open house for the new code. I belatedly received an answer (different) from Sheila Stogsdill just prior to the PC meeting and too late for me to submit written comments for the meeting.
I also asked since last year about tables that were created by the planning dept. and placed on the city's website. These tables showed all of the properties to be rezoned from RS-2 to RS-5 in Barker, but neglected to show the square footage of the property. Therefore, there appeared to be no mathematical proof that these lots were of RS-5 size or even any idea of the average or typical lot size to be rezoned, or the number that were significantly smaller than RS-2 requires.
I requested these lot sizes over one year ago and again at the "presentation" open house held by planning for the new code. This request was made to Linda Finger. I also asked that the map use different colors as the two used were almost identical and that made it difficult to use.
I never received that information. Some time later, I received an email from Sheila Stogsdill with what were said to be lot sizes on my block. As I am quite familiar with my block, that is not what I had requested. I had asked for all of the lot sizes to be rezoned in my neighborhood. It seems that this information would be necessary in order to make a decision. The information that was sent to me referenced the end of my street that adjoined Haskell. Since my street does not adjoin Haskell and since some of the numbers did not look right, I believe that I was not even sent accurate data for my block.
Planning staff also remarked to me that they thought my neighborhood had a lot of accessory dwellings already and I had to tell them that was not accurate.
The supposed presentation of the new city code and zoning maps was not a helpful meeting. First, there was no presentation given. There was no written summary of the changes. There was no written timetable of the coming events or when written comments were due, which was earlier than usual due to a holiday. There were only large zoning maps and a thick binder with the entire city code. Nobody had name tags and the consultant was not introduced. When I attempted to ask a simple question of the consultant, Steven Chinn, prior to a later City Commission meeting, he declined to answer me and told me that I could read the entire code as others had done.
Please do not rezone the properties in Barker from RS-2 to RS-5 as it would not benefit our neighborhood as a whole and it is not legal to do so without individual notification per city code.
Also, with regard to the proposed city code, if it allows for notification of rezoning through neighborhood organizations, I object. Our neighborhood organization is defunct and does not meet and does not pass along information. This is not a substitute for individual notification.”
She said some confusing issues were:
1. How to count days;
2. “Substantial change”; (defined) and
3. Limitation on successive petitions. (no exceptions)
David Corliss, Interim City Manager, introduced Steve Chinn and asked Chinn to explain briefly how he was involved with this project.
Steve Chinn, Chair, Public Law Division, Stinson, Morrison, and Hecker, a law firm located in Kansas City, said he was retained by the City approximately 6 months ago to assist the City in making revisions to the code based upon specific comments that had been received from the community, not to do an overall complete revision of the code. He said they worked from the product of the prior consultant and looked at all the comments received through the course of that period, evaluated them, and made a decision on how to approach those issues. He said in some instances, he took the primary responsibility on redrafting some revisions and other revisions, staff revised and he reviewed those revisions. He said he believed that it was a good process and they were responsive to community input in almost every instance. He said he felt that the City had had a workable code.
Mayor Highberger asked Chinn if he successfully addressed all of the concerns that caused the City to retain him in the first place.
Chinn said he would not say that they had addressed every concern successfully, but certainly the vast majority of those concerns.
Mayor Highberger asked Corliss to address the concerns Sinclair raised.
Corliss said in discussions with Chinn and his partners on the appropriate procedure for notification on zoning map changes, they were of the opinion that they had followed the law in this instance as far as providing the general notification for the hearing to the Planning Commission. He said that there was no requirement that specific property owners be notified when making a general revision of the zoning map. He said they looked at that issue as they were ramping up for the entire zoning map, not just simply on issues regarding the property in the Barker neighborhood, but for the entire community.
Commissioner Schauner asked if it required individual notification if a property being rezoned did not fit plus or minus within a category that was generally being rezoned.
Corliss said no because they were doing a general map revision. He said when they looked at the language in the statute, it was their interpretation that if they were making a general revision to the zoning map, they did not need to provide that individual notification.
Mayor Highberger asked if an individual finding his or her property rezoned as a result of this process could request the City Commission to initiate a rezoning to a more perfect category.
Corliss said when discussing next steps issues one of the greatest challenges was the transition period and there were going to be questions, similar to Sinclair’s, about the impact and staff would need to provide appropriate responses and relaying those back to the City Commission in the upcoming weeks and months.
Commissioner Schauner asked if those individual requests for rezoning could raise spot zoning issues.
Corliss said that issue could happen. He said spot zoning was an interesting label that had been placed on zoning decisions. He said that to some extent, the label “spot zoning” did not have the disapproval that it might have had in earlier years. A community going through the appropriate process and making reasonable determinations on zoning decided that certain specific tracts should be zoned one way as opposed to other properties, the fact that it showed up as a spot on the zoning map, was not by itself defective to the decision.
Chinn said it had to be determined whether the rezoning was consistent with neighboring properties, and if it was, then even though it was an individual parcel, it was not illegal spot zoning.
Corliss also asked Chinn to address the authority to condition conventional zoning. He said that they had come across that issue in a number of different cases and in this development code they now had a clear code authority for conditioning not only planned unit development zoning, but also conventional zoning. He said he and Chinn had spent quite a bit of time in discussions in review of the law and they felt very comfortable that with this new development code, the City Commission would have the authority to establish reasonable conditions on conventional zoning.
Chinn said that he had not worked with a code for 15 years that did not specifically authorize governing bodies to condition the approval of rezoning with reasonable conditions.
Commissioner Schauner said when using the word “reasonable”, reasonable people could differ as to what was reasonable. He asked if there was some standard in the zoning world that would be used to refine that subjective term.
Corliss said that it was determined by if it achieved the goals that were set out in the comprehensive plan and was it fair in its distinction between one property and another in the sense if it had a rational basis to make those distinctions, and were they further narrowing a particular category in the zoning ordinance to achieve a certain public health, safety, and welfare purpose.
Chinn said if the rezoning were related to the impacts that it might have on the community.
Commissioner Schauner asked if it was a rational basis if someone was to challenge the City Commission’s decision.
Chinn said the court would defer to a legislative determination in every instance in a zoning matter. He said if the City Commission determined this was a reasonable condition to impose upon a rezoning then the courts would defer to the City Commission’s judgment, but they would not always rubber stamp that judgment. He said the courts would always assume that the City Commission had made a reasonable decision and unless the court had an over abundance of evidence that it was not rational, would they ever look behind a City Commission’s determination on reasonableness.
Commissioner Schauner said Sinclair raised the question about counting days for filing various paperwork with the Planning Commission and he asked if that was reasonably understood by the laymen, how to count days in order to make a timely filing. He said he was not so worried about people who did this for a living, but for the people who did this once every ten years and if they had an easy tract to follow in the code.
Corliss said they would rely on the statute that sets out the counting of days. He said that was the statutory standard. He said he thought it made sense, but not every item was going to have the same number of days.
Commissioner Schauner asked if the code contained a number or just a reference to the statute.
Corliss said the code contained a number of days.
Mayor Highberger said he was confident that they could work out those problems on this rezoning before the July 1st effective date. He said he was not entirely thrilled with the new code and it was still predominantly oriented toward suburban development. He said they needed to proceed with efforts toward a parallel code that would allow more traditional neighboring design. He said the provision from the RS-2 zoning to the RS-5 zoning was a good thing for the neighborhood because a lot of those older neighborhoods were illegal and this zoning would address that situation.
In terms of more infill, he believed that this zoning created one new structure for East Lawrence.
Commissioner Hack said she appreciated the clarification of the clerical issues and if those could be grouped into similar patterns it made good sense. She said she appreciated the work of staff and she was excited to move forward.
Commissioner Rundle said he was glad to see this day. He said his excitement was at the beginning of this process, but he had lost his excitement when it took as long as it did. He said he was glad that they were finally at this point and looked forward to keeping on with the work that the Planning Commission and Planning Staff had on their plates and getting them the resources to get that done quickly.
Commissioner Schauner said he wanted to thank all the people involved in this new development code. He said this was not the end of anything, but the next step in the continual refinement of the code. He said he thought codes were like living organisms in that they needed to respond to changing demands whether it was new or old urbanism. He said he was looking forward to see how the new code would work in practice. He said from an administrative point of view better and importantly better for the people who would use the code. He said that the professionals who did this zoning work for a living would find little difficulty in accommodating and working with the new code. He said he wanted to continue to strive to make this code as user friendly for the occasional user because they were the people who had more at risk in terms of their life assets with zoning questions and they know the least about how to deal with city government and with the code. He seconded the previous comments from Commissioners. He said he wanted to keep the improvement of the code on the City Commission’s active radar as they continued to move forward.
Vice Mayor Amyx said the amount of work that had gone into this development code was incredible. He said that the development code itself was truly a work in progress as they moved ahead. He said staff had laid out the next steps beyond the adoption of the code and those were the issues that would be considered in the next few months. He thanked all of the people who were involved with the process.
Mayor Highberger said he was remiss in not initially thanking Linda Finger, Sheila Stogsdill, David Corliss, and other staff members for all of their hard work on this new development code.
Moved by Schauner , seconded by Hack , to approve the development code TA-10-05-04 and to adopt on first reading, Ordinance No. 7985, adopting the development code of the City of Lawrence, Kansas, November 11, 2005 Edition. Motion carried unanimously. (25)
Moved by Schauner, seconded by Hack, to approve Z-10-49-04 the zoning map, and to adopt on first reading, Ordinance No. 7986, adopting the official zoning district map, pursuant to Chapter 20, Article 1, Section 108, of the Development Code of the City of Lawrence as adopted by Ordinance No.7985. Motion carried unanimously. (26)
Corliss said he quickly wanted to mention the next steps memo. He said that if there was any Commission comment or direction on those items, they were welcomed. He said staff was committed toward not only ensuring the smoothest possible transition with the new development code, but staff was also committed to working as diligently with those items as well. He said staff would be talking about the necessary resources to divert to those items because they were important items. He said unless he was otherwise directed, he planned on using that memo along with the fact that staff would have someone working on the development process as well.
Commissioner Hack said that the memo was a really important document for the City Commission to check items off as they moved forward. She said to move forward at a faster pace, she suggested getting Corliss and Planning Staff additional help.
Corliss said if that was a consensus of the Commission, he could give them an implementation plan about what kind of resources staff would need to give those steps immediate attention. He said it would require additional temporary and non-temporary resources. He said that it would provide new opportunities for the Planning Department and he was committed to make sure that it would work well.
Commissioner Rundle said he had heard high compliments of Chinn’s work. He said he was not familiar with the number of changes, but he was pleased with the direction that the Planning Commission was moving, particularly with the market analysis which would strengthen the new development code and development process.
Consider adopting on first reading, Ordinance No 7783, [A-12-14-03] Annexation request for approximately 119.9 acres of land, located south of K-10 Highway, between O’Connell Road and Franklin Road. Submitted by The Peridian Group, Inc., for Eastside Acquisitions, L.L.C., property owners of record. Approved by the City Commission on April 1, 2004. The City Commission altered the conditions on this annexation on January 24, 2006.
Sandra Day, Planner, presented the staff report. She said this annexation was part of 120 acre project that had been in review since late 2003, which included a subdivision plat that was coming forward to the Planning Commission as a final plat as well as several zoning considerations that the City Commission had for the property including residential duplex, multi-family, industrial, and commercial zoning that the City Commission had previously considered. She said all of those actions were subject to annexation before proceeding further. The annexation was approved by the Planning Commission originally subject to a condition about the completion of the Southeast Area Plan and was brought back to the City Commission in 2006 to request that particular condition be revised. She said it was noted in that discussion that this particular property had been consistent with many of the versions of the Southeast Area Plan. She said it was staff’s understanding that the City Commission was generally comfortable with the process of the annexation continuing.
Commissioner Rundle said there were a number of people waiting patiently or less patiently. He asked if this sent a signal to those other developers to start moving ahead or do they wait until the Southeast Area Plan was completed.
Day said the area east of Franklin Road was the area that had been the most contentious in those discussions where property owners, staff, and the Commissions had not come to a conclusion what that anticipated or expected land use would be. She said property owners on that side were still generally waiting. She said there was very limited inquiry from other property owners on the west side of Franklin Road. She believed that there was only one property owner that she had direct contact, who was Mr. Queen, who had a corner property abutting this particular annexation. She said his contact was to keep pace with this particular application, not that he had ever suggested any development for his property. She said she had not had any direct contact with the other properties that surrounded that area. If there was communication going on with other engineers, she could not speak to that, although a couple of the applications of development projects that staff saw in relation to this 120 acres, those applications spelled out a concept of what residential development could look like for a couple of those properties located to the south and west of that particular annexation. Not that that was what had been submitted, but to show how the street stubs that staff was looking at in the subdivision plat, could work and provide access to those abutting properties. One of the crucial elements was getting the sanitary sewer on-line for that side and that was all of the benefit district pieces that still had to be put in place before any of that could actually be built and that was certainly something that would hold the line for those other properties.
Mike Keeney, applicant, said he did not have any comments about the annexation, but wanted to address Commissioner Rundle’s question. He said they had worked extensively with everyone and had worked with those options for area plans and they were looking to the City Commission for some leadership as far as proceeding with an area plan at some point to get something solid to move on with. As far as the rest of the property owners, they were aware that nothing would move until some type of area plan was decided. The piece of property that they were discussing conformed to every plan presented and because of that conformity the City Commission thought it was reasonable to move forward with the annexation at this time. He said he would appreciate any ideas the City Commission had concerning timing and progress, and they saw in the future as far as with the Southeast Area Plan being developed.
Mayor Highberger said he would go on the record stating that he was not willing to approve anything further. He said first this was just an annexation and second, he was not willing to consider any further development proposal on the Southeast Area until the Southeast Area Plan was resolved. He asked David Corliss, Interim City Manager, about the status of the Request for Proposals.
Corliss said the City Commission would see a draft scope of services so staff could solicit a consultant to help with the Southeast Area Plan.
Mayor Highberger said he was hoping they could resolve this issue quickly and reach some type of consensus. He said given those two considerations, he was comfortable moving forward with the annexation.
Commissioner Hack agreed. She said this had been the same plan the entire time.
Commissioner Schauner said this was a voluntary annexation as opposed to an involuntary act on the City Commission’s part. He asked if that changed the City Commission’s obligation to provide zoning responses and master planning. He asked if they should start a clock running with this annexation.
Corliss said the City Commission already approved the rezonings for the bulk of the 120 acres. He said one of his questions was where the City Commission wanted to see those ordinances. Those ordinances would then rezone those properties and the final plat would be before the Planning Commission and the City Commission would see the final plat in May. He said with those rezonings in place then this property could pull building permits. There had also been discussions, at staff level, about a creation of a County sanitary sewer benefit district that followed the master plan for sewers in that area for this development and other developments. On the City Commission’s consent agenda, they had received a request from this developer for a special assessment benefit district for those properties and unless staff was otherwise directed, staff would proceed with facilitating those benefit district and would like direction about what to do with those rezoning ordinances as those ordinances were ready to be adopted for that 120 acres. As a matter of practice and policy, any other annexation request received by this body was placed on the consent agenda for referral to the Planning Commission. He said the City Commission was the gate keeper on future annexation requests. If the City Commission had more specific direction to the development community about annexation in this area, that would be appropriate to articulate as well.
Commissioner Amyx said this property owner followed this process for as long as he possibly could, but it seemed that the process was done in reverse in that rezoning was done before the annexation. He said he believed that the property owner understood because there planning going on in the Southeast area and that area had to be planned before they could consider any other pieces of land. He said he thought it would be appropriate to move forward with annexing the 120 acres.
Moved by Amyx, seconded by Hack, to place on first reading, Ordinance 7783, annexing approximately 119.9 acres, located south of K-10 Highway, between O’Connell Road and Franklin Road. Aye: Highberger, Amyx, Schauner, Hack. Nay: Rundle. Motion carried.
(27)
Consider Initiation of Rezoning for Burroughs Creek Corridor Plan first tier recommended for Independence, Inc., from M-2 District to O-1 District. Receive staff report on Independence, Inc. and Salvation Army property rezoning issues.
Mayor Highberger said Vice Mayor Amyx offered to meet with representatives of the Salvation Army and adjoining neighborhoods to seek a resolution before the City Commission considered this matter.
Commissioner Schauner asked what impact the deferral would have on the site plan that would expire shortly. He asked if there was some risk to the Salvation Army or the neighbors.
David Corliss, Interim City Manager, said the current site plan expired May 25, 2006.
Moved by Highberger, seconded by Hack , to defer the initiation of rezoning as it related to the Salvation Army property for 30 days. Motion carried unanimously.
Michelle Leininger, Planner, said staff was working to implement the Burroughs Creek Corridor Plan. The Commission approved the Burroughs Creek Corridor Plan on February 14th, and 3 of the 5 first tier recommended rezonings were initiated for rezoning at that time. Independence Inc. and Salvation Army were given additional time to consider the rezoning.
Independence Inc. was in favor of the proposed rezoning from M-2 District to O-1 District and the Salvation Army met with staff and came to an agreement regarding the proposed rezoning. She said staff recommended the initiation of the rezoning to O-1 for Independence Inc.
Tanya Dorf, Director, Independence Inc., said that their board discussed this issue back in February and agreed unanimously that they did not have any problem with the rezoning going forward.
K.T. Walsh, President of the Board of Directors for Independence Inc., said that Independence Inc. supported the Rails to Trails project and that it would be a wonderful opportunity for anyone regardless of disability to spend time outdoors and get some fresh air and exercise.
Moved by Highberger, seconded by Schauner, to initiate rezoning of the Independence Inc. property from M-2 to O-1. Motion carried unanimously. (28)
Consider accepting dedication of easements and rights-of-way on PF-11-43-05: Final Plat for Cypress Park Addition. 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. Submitted by the Peridian Group, Inc., for Steve Standing, property owner of record.
Paul Patterson, Planner, presented the staff report. He said the action was to accept the dedication of the public road right of way and the easements on those final plats. This item was originally approved with preliminary plat by the City Commission through a de novo process on November 8th, 2005. This item went to the Planning Commission on December 12 th, 2005, and they concurred with the City Commission’s decision to approve it. On January 23rd, 2006, the Planning Commission heard the final plat on this project and approved the final plat, subject to five conditions as listed and recommended by staff. He said this particular property, which was 2.229 acres would be divided into 5 lots, with the access off of Learnard Avenue. He said this item was before the City Commission originally on February 21, 2006 for the acceptance of easements and dedication of public road right of way; at that point it was tabled for three weeks to allow some additional questions on some legal issues that needed to be looked into and resolved.
Mayor Highberger called for public comment
Steve Standing, applicant, said the City Commission unanimously approved the proposal on November 2005 and the Planning Commission concurred in January of this year. The expert consultant, Steve Chin, interpreted the de novo hearing to be lawfully held. He asked that the process be concluded and for the City Commission to approve the proposal.
Patricia Sinclair, Lawrence, said regarding Cypress Park Subdivision, the applicant’s statement that he solicited and received approval of his neighbors for this project was false. Obviously, some neighbors were in favor of this final plat, but she had no notice or knowledge of this issue. She wanted to make it clear that this was something that was not taken to the neighborhood as a whole and did not have the support of the neighborhood as a whole.
The section of the City Code which allowed a de novo hearing before the City Commission to appeal a decision by the Planning Commission was used in violation of and in conflict with the Kansas zoning and planning statutes. Section 21-801 of the City Code was based on an old City ordinance dating from 1981, which was prior to the current State planning and zoning statutes. She said that this allowed for a de novo hearing before the City Commission under certain specific circumstances. She said what the City Commission decided at the de novo hearing could not be overruled by the Planning Commission at their subsequent hearings. She said this was important and might not have been made clear to the City Commissioners when they had the de novo hearing in November. The Planning Commission, under that section of the City Code, was unable to overrule City Commission action despite their vote.
She said David Corliss, Interim City Manager, stated the City Commission could not approve a final plat and this was the territory of the Planning Commission. She said Corliss stated that the City Commission only approved a preliminary plat as his interpretation. She said the de novo hearing that was held by the City Commission did not allow the Planning Commission to overturn the decision of the City Commission to approve the plat. She said it did not matter what the vote of the Planning Commission was in December or January, as they were unable to change the vote of the City Commission according to this section of the City Code when they voted on the preliminary and then the final plat. The preliminary plat and the final plat were identical. Therefore, the City Commission did approve the final plat, which was not allowed, according to David Corliss and the Kansas Statutes. She said the City Commission approved the final plat because the preliminary plat was the final plat and because they forced approval of the final plat since the Planning Commission could not overturn their decision.
The plat had failed to address significant issues that were required to be met in the approval of a subdivision. She said one of those was an adequate storm water plan. Chad Voigt, former City Storm Water Engineer, did not approve the storm water plan, he stated that they resubmit the drainage setting matching the current proposed development layout, verify the proposed attention concept, worked with the road crossing elevation down stream, verify the controlled area actually would reach the basin, the downstream neighborhood did not have adequate drainage paths, and it was 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. She concluded that Voigt stated that the final plat dated November 17 th, 2005, could not be reviewed based on the status of the drainage study. She said through her inquiries, she had been able to ascertain that there has not been any further development on a storm water drainage study.
She said another issue was that there had not been comments received from the Fire Department. She had checked with the Planner, Paul Patterson, who said that their comment was “no comment.” She said she read at some meeting that it was contingent that the Fire Department be contacted about this due to their concerns about those shared driveways of private roads and their access to those proposed dwellings. She said that there was also an oversized building on one of those lots.
She said that if the City chose to have a Planning Commission, they must follow uniform Kansas planning and zoning law. She said this law specified the process for approval of a subdivision, which included notification to neighbors in an orderly process whereby it first went to the Planning Commission for approval. She said this process was included in the City Code and mirrors that of the State’s Statutes.
She said the State planning and zoning statutes did not allow for or support this de novo appeal. She said that it was an outdated piece of City Code that, at one time, allowed for an appeal to the City Commission on the basis of an alleged error in the interpretation or enforcement of the City Code; it did not allow taking a subdivision request to the City Commission to reverse a denial by the Planning Commission unless a specific error was alleged.
The minutes of the City Commission meeting of November 8th do not support that an error was made by the Planning Commission, nor did they show that the City Commissioners approved this plat based on any specific criteria or reasons or in consideration of the reasons cited by the Planning Commission for denial. She said if the applicant did not like the decision of the Planning Commission last summer, he should have taken the matter to the District Court for an appeal.
In researching the legality of this use of de novo appeal, she came into contact with a person who was very knowledgeable in the area of Kansas Planning and Zoning Law, although not a lawyer. She said because she did not get permission to quote that person, she would not identify him, or quote directly from him. She said that he had a vast education and wide experience in this area of Kansas. She said it was her understanding from their written communication that he concurred with her about the purpose of the de novo hearing and that subdivision requests by state statute must go to the Planning Commission first for approval. She said she was not implying that he concurred with everything that she had just said.
She said that she would like to reference a couple pieces of legislation. She said the Kansas .Statutes Annotated 12-752 outlined the process for plat approval and stated that no building or zoning permits shall be issued for the use or construction of any structure upon any law at a tract or parts of the land located within the area governed by the subdivision regulations if it had been subdivided, re-subdivided, or re-platted after the date of the adoption of such regulations of the governing body or bodies, but which had not been approved in the manner provided by this act. She said that the manner provided by this act was what they had reflected in their City Code which was that orderly process where the applicant for the subdivision came before the Planning Commission, and notice was given to neighbors and so forth.
She said there was an important court case which involved the City of Lawrence which was Moore versus The City of Lawrence. She said the addition to the city ordinance of approval by the City Commission meant in effect that the City Commission could overrule what the Planning Commission did and she had trouble finding that amounts to enlargement. It seemed that it gave somebody else the final say in the case, the Planning Commission said yes and the City Commission said no, the result was that a plat otherwise having been approved was not approved and she suspected that did in fact demonstrate the City Ordinance was in conflict with the State Statute. Obviously, this would be the reverse of that where the Planning Commission said no and the City Commission said yes. She was not trying to say that all of the issues were the same, but it had to do when a City process might be in conflict with the state statute or whether it was just the City process additionally was an enlargement as opposed to something in conflict.
She also read from another passage that generally a municipal regulation which was merely additional to that which was imposed by state law could not be said to create a conflict therewith. She said that it also mentioned the applications of statutes. She said while the applications of the statutes might be optional, it was clear that once a city chose to adopt this method, the legislature intended for those statutes controlling a Planning Commission proceeding to be binding. Those statutes were lengthy in detail, explicitly delineating the respective powers and duties of the Planning Commission and the governing body of the city. The Comprehensive scheme for the adoption of subdivision regulations and approval of subdivision plats was further provided. If each city which elected to create a Planning Commission of the provisions of 12-701 were allowed by way of Charter Ordinance to determine which of the provisions were not applicable to that City, the purpose and effect of the statute to provide a comprehensive method for the government of city planning and a regulation would be seriously impaired. She said they did not think that such a result was intended by the legislature and therefore those statutes were uniformly applicable to all cities which elected to follow the procedures set forth therein.
She said she was requesting that the City Commission not accept the dedication and easements and to reconsider the legality of this general hearing.
Vice Mayor Amyx asked Corliss, under the current code, if the City Commission had the right to hold a de novo hearing and did City Commission follow the rules that were set out in holding that hearing.
Corliss said yes that was his conclusion.
Vice Mayor Amyx asked if it was up to the Planning Commission to reconsider the action they had taken before or only the action that the City Commission had sent back to the Planning Commission which was this development plan.
Corliss said only the action on the development plan.
Vice Mayor Amyx asked if the Planning Commission agreed and approved the final plat and had sent this final plat to the City Commission to accept the dedications and that was the only item of discussion.
Corliss said that was correct. He said he had a memorandum that tried to highlight those issues. He said he had talked to Chinn as well to try and get an independent view of this issue because the issues were in compliance with the enabling statute and Chinn concurred with his opinion that they had the authority to do what they did in this case.
Vice Mayor Amyx said the action that the City Commission took at the de novo hearing was not an initiation of that plan, but a reconsideration of that plan to send back to the Planning Commission.
Corliss said the City Commission sent back the plan and said that the City Commission’s disapproval was overruled.
Commissioner Schauner said Sinclair made an interesting point in that the final plat and the preliminary plat were identical documents.
Corliss those plats were substantially similar. The preliminary plat had more information than the final plat. He said that the final plat was a more refined, recordable document than the preliminary plat.
Sheila Stogsdill, Acting Planning Director, said the final plat provided the boundaries survey, whereas the preliminary plat provided topo-information and more utility information. She said that the layout was the same.
Commissioner Schauner said he wanted to know the difference between the de novo approvals of the preliminary plat, which for all practical purposes was the final plat. He said that if those plats were essentially the same, he asked if the City Commission, in fact, approved a final plat and gave direction, at least passively, to the Planning Commission that they wanted to approve this document.
Corliss said he thought that was the strongest argument and the distinction was that they were using words like “passively” when in fact what they did was overrule the Planning Commission’s denial of the preliminary plat. He said the preliminary plat was not a statutory creature and there was no statutory authority for the preliminary plat process in the City’s subdivision regulations. He said that it was in addition to, but not in conflict with, the platting procedures that were set out in the state enabling statutes.
Commissioner Rundle said he thought they always essentially approved the final plat because, as stated, it had to be substantially similar to the preliminary plat, or they had to go back and replat. He said that the de novo hearing was broadly written to appeal decisions, and the first interpretations of the regulations of the particular section were not just related to platting. He said the way it read was that the City Commission’s decision was final, general, and was not necessarily related to the platting process, although he could see where that confusion would arise.
Commissioner Schauner said he understood the phrase “de novo” had somewhat of a muddled meaning. He said that it meant certain things under certain statutes. He said his understanding was generally consistent with Sinclair’s interpretation, that in this case de novo did not mean “from the beginning” in the purest sense, but rather an examination of whether there were errors or mistakes made in the administrative process. He said he wanted to know if he was mistaken. He suggested that they take a look at how they were going to define and use the de novo process. He said it was not as clear as he thought it ought to be with respect to the file versus the preliminary plat issue.
Corliss said that in the draft subdivision regulations for Chapter 21, Section 21-801 was not there. He said Sinclair made points about that as well. He said that Commissioner Schauner made valid points. The language talked about an appeal to the governing body decisions made in the enforcement or interpretation of those regulations. He said that was fairly broad language. He said the interpretation of the regulations was essentially what the Planning Commission was doing. He said they were taking the existing subdivision regulations, taking what the applicant had submitted and applying the subdivision regulations versus what the applicant had put forward in interpreting the various standards. He said it was fairly broad and was not meant to be a small “gotcha” error. He said it was fair to say this process could be used to force the Planning Commission to approve a final plat that they might not otherwise want to, but the way it was written, he believed the City Commission had that authority when they were hearing an appeal of a preliminary plat.
Steve Chinn said it was beneficial to not look at the statute, but to look at the ordinance provision. He said that they asked him to look and see if the process or outline was consistent with the statutes, and it was. He said it was very common in codes in the Kansas Metropolitan Area, for the provision whereby the governing body could request that a preliminary plat be submitted to them after Planning Commission review for their input, which was not dissimilar to what happened here. He said no one considered that to be inconsistent with 12-751. For example, if two members of the governing body submit a request to Planning staff that they had the opportunity to review a preliminary plat by a certain date, then it should also go to the governing body which was common and was not inconsistent with what happened here.
Vice Mayor Amyx said the last time they had the hearing, they discussed to great length about the preliminary plat and that was where the discussion came around in whether or not the preliminary plat was a state law required step. He said the City Manager said it was not a required step, except under the City’s code.
Corliss said that was correct and it provided staff with a very important planning tool to make sure that not only was the sub-divider’s request was appropriate, but that it was also in harmony with the adjoining property.
Mayor Highberger said he recognized there was a delay in the process and he apologized to Standing. He said there was a question raised on the legality of the City’s process and that has been answered in the affirmative and it did comply with state law. He said he felt comfortable moving ahead with accepting the dedications.
Moved by Amyx, seconded by Hack, to accept the dedication of easements and rights-of-way for PF-11-43-05 a final plat for Cypress Park Addition, a five-lot single-family residential subdivision containing approximately 2.229 acres, located at 1801 Learnard Avenue;
Aye: Highberger, Amyx, Rundle, and Hack. Nay: Schauner. Motion carried. (29)
Consider approving, subject to conditions and use restrictions, PDP-09-08-05: Revised Preliminary Development Plan for Northgate Commercial (aka: Diamondhead). This proposed planned commercial development contains approximately 31.005 acres. The property is generally described as being located south of west 6th Street between George Williams Way (extended) and the South Lawrence Trafficway/K-10. The plan proposes 198,714 gross square feet of commercial uses including a convenience store, drug store, bank, and five other retail buildings.
Sandra Day, Planner, presented the staff report. She said this project started with the annexation a number of years ago, along with zonings, subdivision platting, and a final development plan for the commercial piece. The subject property was located along the south side of west 6th Street and abutted George Williams Way, extended to the north, and bounded by Ken Ridge Drive. When staff looked at a subdivision plat for Langston Heights, which was on the southern side of this project, Ken Ridge Drive ended up being extended further to the west and the result of the property was surrounded by public rights-of-way.
She said the project included approximately 198,000 square feet of commercial retail space. She said the project had been zoned for planned commercial development, subject to the approval of development plan. She said the zoning had been approved, but had not been published. She said they went through several different versions and iterations throughout the review and development process. The project was required to have a traffic study, market study, and a sanitary sewer downstream analysis study associated with it so there was a lot of supporting documentation for the project as well.
She said one of the questions that was raised by the Planning Commission at the public hearing was how did this project compare with the commercial design guidelines. She said that was a new review for staff to do, but through a number of different individuals, they were able to provide that to them and what staff looked at were very specific analysis that included pedestrian connectivity, both interior and how it related to the surrounding public rights of way, how this project related to the surrounding residential development to the south, there was also a strong tie to the residential area that could be found on the east side of George Williams Way. She said they looked at interior vehicular access and building orientation. When stepping through the commercial guidelines, it was surprising to staff that some of the things in the commercial design guidelines were things staff already did. Staff did present a number of things to the applicant at the public hearing, which was new to them at that time as well to the Planning Commission. She said some specific changes, some of which the applicant was agreeable to, some of which the applicant was not.
Staff noted that in relationship to the commercial guidelines, there were several elements that they would look at more with a final development plan than a preliminary development plan that had a lot to do with the aesthetic side of it such as actual building façade, detailed landscaping, public areas within that commercial development and the applicant was put on notice that those elements would be something that staff would be looking for at that final development plan stage. Ultimately, what the Planning Commission did was to recommend approval, 8-1, for the project subject to a number of conditions. She said it was a phased project and phased improvements included both interior work as well as infrastructure improvements to the abutting roadways.
Mayor Highberger asked Day to review Condition 9 that was added by the Planning Commission.
Day said a lot of that discussion went back to language that was added in the current commercial chapter of Horizon 2020 and that spelled out the provision of a market study. She said the best way she could describe it was in two parts: one would be the applicant providing a market study, which they were obligated to do; and, the second half was an internal analysis to look at sector analysis, which was based on some of the tax revenue information and discussions about how they implement that second half. She said the impact of the condition was that something had to be completed before the applicant could move on to the final development plan when they would submit something. She said staff was not necessarily able to give an applicant or developer today, the kind of guidance if something was a permitted use in the district or not. She said the Planning Commission felt very strongly that this was an important tool to keep moving forward with and staff struggled with that language in how to write or structure that condition. She said staff asked Corliss and the new long range planner on how to structure that language.
Sheila Stogsdill, Acting Planning Director, said the condition as it was written stated that there would be a note on the development plan, that the Planning Commission should have the authority to establish additional use restrictions on the final development plan and such restrictions might be based on part on the completed retail market study database and recommendations on suggested specific uses that were not appropriate. She said the concern from staff was that while Horizon 2020 had the policy that sets up a retail market impact that staff would perform, there was a lag time, just as Horizon 2020 was adopted in the late 1990’s and just tonight the City Commission had adopted the development code, as the implementing tool for many of those policies. She said staff had the retail market study phase 1, but there was a second component, which was going to allow staff to specifically analyze proposed developments and what the impact of those might be on downtown or other sectors of the community. She said what this condition did was to put the developer in a limbo timeframe in terms of being able to move forward with a final development plan if staff did not have the information from a phase 2 study to answer those questions as to whether a specific use might be detrimental to other parts of the community.
Vice Mayor Amyx asked why the Planning Commission placed a condition on a preliminary development plan when there was no study that existed to be able to answer that question at this time.
Stogsdill said this was a topic the City Commission had been very interested in and wanted to see rapid movement on, wanting to be faithful to Horizon 2020, and put a developer on notice that there could be additional restrictions in the future.
Commissioner Schauner asked if there was any discussion at the Planning Commission meeting if a facility was built with 20,000 square feet, its initial use was proved and found to be something the market could absorb, if there was a retail data study, but that business went out of business in a year and they had the square footage. He said he was troubled by how the building could be used for different purposes in the future. He said he was in support of market analysis approach, but he was troubled how it would work in practice. Once a business was built, it was built. He said he did not know how they would fix it if the business went bankrupt or decided to leave town.
Mayor Rundle said he thought it related to the fact that they were in transition between the old development code and the current development code. He said he thought the Planning Commission would see next month the proposed changes to the market analysis. He said as he understood it, it allowed them to go back and look at the new regulations and apply those regulations. He said he did not think the Planning Commission was going to be arbitrarily limiting uses or restricting this development, but following those new regulations. He said he thought that the market analysis was going to change from square footage to being tied more to sales tax information.
Stogsdill said there was a proposal that sales tax information be part of the equation.
Commissioner Schauner said that even if that was true, he was not sure that answered his question.
Mayor Highberger called for public comment.
C.L. Mauer, LandPlan Engineering, said they were okay with the first 8 conditions, but asked that the 9th condition be removed. He said the greatest fear was that if they leased this building out to a company, and the use was okay for that market, then that person left, he would be back in front of the City Commission the next time around with a new market study for a new tenant for that space because with the way it was setup right now, that was the way it was read and he could not have another lease until he came before the City Commission to determine if that was appropriate. He said that meant another market study, and that was not a free market system. It did not give them the right to build a building, lease it out to someone, as along as they were in the same use of PCD, without coming to the City Commission first to see if it was appropriate. He said right now they had a PCD-2 zoning with a long list of uses, but with the way the market analysis was setup, if he wanted to put a barbershop in at that location and there were four barbershops downtown, someone could tell him he could not have a barbershop at that location.
Mayor Highberger asked if Mauer understood the Planning Commission’s concern and if so he did have another way to address those concerns.
Mauer said he knew that the City was concerned about having too many of the same market type. He said that it was difficult to keep up the market and know what was right or wrong.
Brian Kubota, co-developer of the project, said one answer concerning this project was that when developing a large amount of square footage with uses that were allowed by use groups, the reality of the market place would be before the Planning Commission with preliminary and final development planned revisions. He said each time that occurred, conditions could be placed on the preliminary and final plans.
He said that it had been four years since the project was first started. He said throughout the process, they were ahead of the curve in that they performed a market study, traffic study, phasing and development based on the traffic, and was one of the first proposed developments to perform a sanitary sewer study. He said when they performed the market study the City had Phase 1 of the market analysis study completed. He said what they would like to do was progress to the development plan phase. He said that it had been a long time, and $80,000 ago, since they had put in the sanitary sewer, and now they had George Williams Way special assessments coming on board, and to do any development at that location would require many off site improvements. He said that they were starting the process on Phase 1, and were two years away which delayed them further. He said by the time they constructed anything at that location, it would be 5 to 6 years since they initiated the process.
He said the West Lawrence Neighborhood Association was happy with the proposed development at that location and there was no one opposing that development including the Planning Commission. He said he would respectfully ask the City Commission to approve this development in order to progress to the next step. He said they would accept and implement the guidelines that the City Commission had not adopted at this time. He said Planning Staff indicated that most of their plans complied with the guidelines except for a few details. He said those types of details could not occur until the final development plan and in order for the final development to occur, they needed to have some occupants. He said they did have a lot of potential occupants, but those occupants were turned down until that final development plan was approved. He said once that plan was approved, they could work with the various occupants and try to establish a final development plan based on the guidelines that the Planning Commission had drafted, which had not been tested yet. He said that they could not wait until some matrix was designed to see if they were in competition. He said he would appreciate it if the City Commission would act on this particular item tonight because a lot of time would be available to review the development.
Commissioner Hack asked Day if Planning Commissioner Jennings opposed this recommendation because of Condition 9.
Day said yes.
Commissioner Schauner said he understood the attempt of the Planning Commission was to limit, not necessarily the uses, but retail square footage development. He said he thought those were two different things. He said it was impractical for a city to get in the business of releasing space to someone and the City Commission had to indicate “yes” or “no.” He said he thought it was important to have an interest in restricting the amount of retail space that was built because if they permitted more retail space to be built than the market could currently support, it created vacancies in property which was less attractive and end up cannibalizing those properties in order to support the newer facilities. He said that was the premise he had been operating under for some time in restricting square footage rather than use purposes. He said that was why number Condition 9 threw him a curve. He said he could support something that limited the square footage based on retail data analysis, but he had a hard time supporting a specific use restriction.
Commissioner Rundle said there appeared to be a wide gap in understanding. He said he understood the Planning Commission’s concerns differently than Mauer did. He said those minutes had to be reconstructed due to staffing problems at that particular meeting and were not the best minutes they had. He said some of the confusion might be because those minutes had not been precisely reconstructed. He said his understanding was that they would not do a new market study for each use, but they might, if they added to their zoning the capacity to restrict uses under zoning categories that might occur. He said he thought the market analysis would be related to limiting square footage, but more likely it would be a matter of other phasing limitations. He said once this development was able to pull a building permit, the City Commission was not going to look at every new tenant and hoped that was not the plan. He said he thought the market study was insufficient and the conclusions required further review. He said he thought that would be addressed if there were improvements made to that particular aspect of the development guidelines. He said the reason they were performing those types of studies was to protect existing investment, both public and private, to make sure they were sensitive to the impact it had on downtown, and that was the spirit in which this was put forward and he was completely behind that idea.
Commissioner Amyx asked Stogsdill if she wrote Condition 9.
Stogsdill said no. She said it was drafted by a committee made up of Corliss, Day and Miller, their long range planner.
Vice Mayor Amyx said in helping write this language, he asked Corliss if it was for use restrictions and not square footage.
Corliss said that he did not have the benefit of attending the Planning Commission meeting, but yes.
Day said in the minutes there was a discussion about the compliance of this project with Horizon 2020 with regard to the total amount of square footage and the Planning Commission did come to the conclusion with regard to the overall square footage that the project was in compliance with the guidelines found in Horizon 2020. She said the discussion focused on use, but did not have a specific discussion from her notes, recollection, or minutes of what happened on a change of use. She said that discussion about what happened ten years from now, on a tenant change, was not there. She said Mauer asked her that exact question which took her off guard because she had not advanced her thinking that far and her comment to Mauer was she did not know how they would apply that in that particular situation. She said the Planning Commission’s discussion was tied to uses and it was not unusual for the Commission to restrict planned commercial developments where they had a laundry list of uses. She said many of the PCD’s would have PCD-2, except all uses prohibited in use groups 17 or 13, or striking individual uses. She said staff had used that tool many times to address the scope of uses and that was her pause with the condition out of that discussion. She said staff tried to make that condition as closely to the way the Planning Commission was discussing that item.
Commissioner Hack asked if the normal way of looking at this issue was those were businesses they could not have in a particular location because of its proximity.
Day said for instance, there were planned commercial developments where businesses such as a pawn shop were prohibited in certain commercial developments because of their proximity to schools.
Commissioner Hack said this issue was a different arena. She asked if there was any method for that analysis.
Day said the method for the analysis needed to be developed and then it would be a use by use evaluation.
Mayor Highberger said the note stated that the Planning Commission shall have the authority to establish additional use restrictions on the development plan. He asked if that statement was necessary for the Planning Commission to have that authority.
Corliss said as he understood, the Planning Commission would want to forecast to the property owner that at the time of the final development plan, the Planning Commission wanted to reserve that authority. He said they had that authority with development plans and PUD zoning ordinances under the current zoning code to establish use restrictions, but he understood that the Planning Commission wanted to forecast that they wanted to look at that again and those restrictions would be based upon the completed retail market study database and recommendation for specific use restrictions at that location. He said it would govern the entire development so that if there was a proposal to have a use in the future that was prohibited, the comments made by Mauer and Kubota, about having to come back to have that changed was exactly on point. That was how it was done now and that was a legitimate issue of whose role that should be, Planning Commission, City Commission, or a private property owner, but they did have that authority under the City’s laws.
Mayor Highberger said the approach was to put the applicant on notice that that might be considered relevant.
Corliss said in order for the applicant to proceed with development, the applicant needed a final development approved.
Mayor Highberger said the Planning Commission had the authority to change the preliminary development plan.
Corliss there was the issue of if there was a substantial change from the preliminary development plan to the final development plan and the Planning Commission wanted to reserve that authority to look at restricting uses at the time of the final development plan no building permit could be pulled unless the property was in compliance with the approved final development plan. He said as he understood the Planning Commission’s concerns, was that they were focused on the fact that they wanted additional information on what specific uses should be prohibited at this location.
Commissioner Schauner said specific uses prohibited at that location not necessarily a from time to time review of a proposed tenant as long as that tenant’s business was consistent with the use group.
Corliss said once the final development plan was approved, the only way to change the plan was to go back through the zoning ordinance or to have that plan reviewed again. He said the development plan, once it was approved, was a set document. The concern would be of whether or not there was enough flexibility given.
Commissioner Schauner asked if the applicant anticipated coming back and asking for uses that were not in the use group currently. He said as long as a person was not selling some product which was not in the use groups, that person would not need to come back to the governing bodies.
Day said according to final development plans today, if there were a set of uses, certain things would be restricted. If someone wanted a low intensity warehousing type use, staff would need to see if that would be a permitted use in that district. In this particular Planned Commercial Development, based on that zoning ordinance, it would be a permitted use and could proceed. The Preliminary Development Plan might need some revisions or they could go forward with a Final Development Plan depending on what was spelled out for that piece. For instance, if Kohl’s or one of the smaller tenants in that development were to remove itself and a different type of apparel, shoe store, or a small specialty food market went into one of those smaller spaces, if that type of store was on that permitted use group list, there would be no need for revisions. Staff would internally review that space making sure parking was still appropriate and that there were no modifications to the building. If adding a use that was not in that use group list, then a public hearing was required, a Preliminary Development Plan would need to be revised, and then come back with a Final Development Plan.
She said concerning this project, in the first phase, there was a bank, drug store, and gas/convenience store which were shown in the Preliminary Development Plan. If something came back with the second phase market study, the applicant would submit the Final Development Plan and if that analysis indicated that, for instance, a bank was not appropriate, the applicant would need to revise that use and that Final Development Plan was no longer consistent with its Preliminary Development Plan therefore, going back to square one.
Vice Mayor Amyx asked if the safeguard would be to build in.
Day said at the final development plan stage which gave staff pause because someone would come to staff for the pre-submittal asking if that was a permitted use in that district or in that development and staff was not able to give that person good information without having more analysis before that happened or having acted on this particular document.
Commissioner Schauner said staff would not be able to give a quick answer because staff had not been experienced in performing a retail market study for that particular use.
Day said staff did not have that second piece in line. She said whatever time it took staff to ramp up to be able to answer those types of questions.
Commissioner Schauner asked if that was the difference in Condition No. 9 which was the possible use of a completed retail market study database.
Corliss said in Section 20-104.1 in the City Code as a condition of approval indicated the following:
“As a condition of approval of a PRD, PCD, PID or POD zoning district, the Planning Commission or City Commission may designate by ordinance or as a note on the face of the development plan, any specific use, structure or building type which shall be restricted and excluded as part of the planned unit development zoning district.”
He said staff had indicated this was the code authority that allowed the City Commission to do those types of conditions and the Commission would have that authority throughout all conventional zoning in the new development code. He said it was common to restrict uses and as he understood, the Planning Commission, in addition to the zoning ordinance and in addition to looking at the preliminary development plan, additional data to make that determination on the final development plan. The language that was worked out forecasted that idea. He said it was the City Commission’s decision on whether or not that was appropriate. He said it was important that it was not staff’s interpretation that the language in either the code or in the proposed language that that meant that a use by tenant “A” that was allowed and if tenant “B” came in and that use was also allowed, that would go on and there was no additional review or need to change the plan. He said if it was a use that was allowed under the development plan by one tenant, another tenant with the same use was allowed. Again, the issue was the Planning Commission wanted additional market data information to further refine the uses that were allowed at that location and the Planning Commission was forecasting that idea ahead of time and making an expectation that would happen at the final development plan stage.
Commissioner Hack asked if there was anything in place to allow for that second part of that market analysis.
Vice Mayor Amyx said when this development was at a final development plan stage, it could not happen until they had that retail market database.
Corliss said no. He said Condition 9 stated:
“The Planning Commission shall have the authority to establish additional use restrictions on the Final Development Plan. Such restrictions may be based in part on the completed Retail Market Study database and recommendations on suggested specific uses that are not appropriate.” He said there would be different views from the Planning Commission about the level of that database existing and whether or not they were comfortable in allowing certain uses or having additional restrictions.
Commissioner Schauner asked if the final development plan would come before the City Commission.
Corliss said the final development plan would not come before the City Commission.
Mauer said the one problem with the theory on the uses was that with changing use was changing parking then he would need a new final development plan which would kick in the market study again for that tenant. He said that change of use, regardless of whether it was in that same PCD, if the use changed the parking, then he had to come back with a new plan to prove the parking was good which kicked in the market study.
Corliss said he was not disagreeing with Mauer because that was part of staff’s review when someone had a change in parking. He said his point was that if the uses were not changed, the fact that changing tenants would not require an additional review.
Mayor Highberger said he did not see anything in the language that triggered a market study based on a change in a new tenant.
Commissioner Rundle said he talked to a Planning Commissioner who initiated that discussion and it was meant to be a signal.
Corliss said there needed to be clarification to the applicant from the Planning Commission, if they were going to go through the challenge of submitting a final development plan when they were not going to have all that retail data information.
Vice Mayor Amyx said that was the problem that without that piece of information being in place, they would not know how the Planning Commission was going to use Condition 9.
Corliss said there was keen interest in the retail market database to the point where the City’s comprehensive plan talked about the need for type of database, but they did not have the tools to respond to that idea.
Commissioner Schauner said when the sales tax data was collected; he asked what was missing in terms of the tool to do that market study.
Corliss said he was not in a good position to answer that question and he did not know the answer.
Commissioner Hack said there was the question about the sales tax data. There were two sides to that argument as to whether or not sales tax data was the appropriate tool to gather that information.
Corliss said a number of members of the Planning Commission had focused on sales tax data and sales tax data by subcategories to let staff know what was happening with the community and its growth along with the City’s trends. He said they needed a decision and then they needed to implement that decision.
Commissioner Rundle said this conversation should send a signal to the Planning Commission that the City Commission clearly did not want to unduly obstruct or delay this project.
Commissioner Hack said it seemed that they were looking at this project as the “do it or die” situation and she thought they were putting the Northgate Project in a bad situation because for whatever reasons, they did not have the tools in place to do the complete analysis and that was a fairness issue that was unfortunate.
Vice Mayor Amyx said the question was asked of this particular condition being placed on all future commercial developments and the vice chairman had stated that it was on any development that was 150,000 square feet or more. He assumed they would see this on all developments in the future but without this tool in place for that determination to be made any development that came forward would be in limbo.
Commissioner Hack said that issue needed to the next step, but in the meantime she did not feel that it was appropriate to hold the applicant hostage because there were not tools in place to do what the Planning Commission wanted done.
Commissioner Schauner said he did not know that that was what this did. It seemed that this project could go through. The uncertainty for the developer was that they did not know whether or not the Planning Commission would use a retail market study database as a method of restricting future uses. It just said “may use.” If they did not have a tool, that condition would essentially be meaningless with respect to the retail market study. He said he thought this was a significant public policy question. He said he thought this idea came out of the City Commission’s intention of honoring and protecting the downtown market place so that they did not cannibalize those older markets in favor of the newer markets. He said there was a fundamental disagreement about whether they could absorb that retail today or whether it could be absorbed 5 years from now if the City’s growth continued at certain suggested or proposed rate.
He said he thought he understood Condition 9 differently now then when they first began this conversation. He said he could support Condition 9, but the message to the Planning Commission and staff was whether they could build that tool and what it would take to build that tool.
Commissioner Rundle asked about the zoning and the preliminary development plan approval.
Stogsdill said the zoning was approved with a condition subject to approval of the preliminary development plan.
Commissioner Rundle said they approved the commercial square footage.
Stogsdill said it was approved, subject to that plan.
Commissioner Rundle said that was 198,000 square feet. He said he did not think there was any effort to hold anyone hostage or unduly obstruct, but they were trying to protect the City’s public and private investment when considering those new proposals. He said that was all Condition 9 did which was that the Planning Commission was going to use the tools that were developed in the next few months.
Kubota said he has been held up for four years on this project. He said every time he was close, there was a tool that the City did not have for him to move ahead. One of the potential tenants was Walgreen’s Drug Store. He asked if they could not have a Walgreen’s Drug Store at that location. He said it had always been said that neighborhoods should be planned around schools and there should be community center between those two. He said there were not services at that location from Wakarusa west.
The 198,000 square feet development was an 8 year plan or it might be a 12 year plan. He said they were not building 198,000 square foot development immediately because the market was not there at this time to absorb it. He said no one was going to build a building and establish a retail business if their market study did not say they could not make it at that location.
He said the City was narrowing the flexibility and viability of the scope of how the City approved uses and businesses in this town. It was getting to the point that in order to have a retail business a person had to come before the City Commission to ask if they could be in that type of business. He said if the City got to a point of approving individual uses, then they would be creating an economic problem in this City. He said the City was already being held up on residential development because of sewers. The office development was plentiful, but those office spaces could not be used for anything else but offices. One of the best reuses of space was the K-mart space where there was enough flexibility to have 3 stores in that location. He said the City was at a point where the building industry was down. He said last year, he paid the City approximately $42,000 in permits, but that construction industry was gone this year. He said next year those fees would not be there.
He said based on experience, if the City Commission did not approve this plan, they would be 2 ½ years away because any governing agency whether public or private dealing with what the City Commission was attempting to do on a commercial matrix, would not come up with that overnight.
Mayor Highberger said he did not think that restriction, as it was drafted by staff, in response to the Planning Commission placed an undue restriction on the applicant. He said the City Commission needed to be clear to the Planning Commission, if this plan was approved with those conditions, that if by the time the final development plan came around for approval, if the retail market analysis database was not available, that the City Commission expected that issue not to hold up consideration of the project. He said all that condition did was to make it clear on the preliminary development plan there might be a possibility of adding additional use restrictions and the final stage. He supported approval with Condition 9 with the message to the Planning Commission that if the retail market study was not available by the time the final development plan was to be approved, that the Planning Commission not use that issue to delay that project.
Commissioner Hack asked if the Mayor’s message could be Condition 10.
Commissioner Rundle said the minutes could reflect the Mayor’s message.
Commissioner Hack said she would like that message as a condition rather than just in the minutes.
Commissioner Rundle said that was fine, but he did not think people understood what the proposal was about the retail study and it might not be because of that database.
Vice Mayor Amyx said the Mayor’s message was clear that as of July 1st, if the retail database was not completed, then this project would not be held up.
Commissioner Schauner said one of the negatives of being out front with respect to that western edge development was that Kubota had been in the position of plowing the way for a lot of issues in that part of town and he thought this issue was one of those. He said he did not have any problem making it clear in the minutes that if there was no retail market study database at the time the final development plan was approved, then obviously a retail market study could not be used.
Stogsdill suggested adding that message as another note on the preliminary development plan so that it was easy to reference in the future.
Commissioner Schauner said when discussing staff’s needs, he did not know what it would take to develop a matrix that was usable and understandable. He would like to see what was available in that regard if they were going to try and condition those projects that were in excess of 150,000 square feet of commercial development.
Corliss said the Planning Commission was going to consider alternative language on the retail market requirements in April. That would be one of the key determinations as to what tool the Planning Commission was saying they wanted to codify. If that was confirmed, then staff would know what tool to build the database around. He said the best studies would be the studies that they agreed that the correct tool was being used. He said that was a significant requirement that the Planning Commission recommendation came to the City Commission and there was a meeting of the minds as to what the tool was.
He said he wanted to make it clear that staff would be placing an additional note on the preliminary development plan.
Stogsdill said the additional note would state: “If the retail database study was not completed by the time the final development plan was submitted, the absence of the study would not be utilized to delay action on the final development plan.
Moved by Schauner, seconded by Hack, to concur with the Planning Commission’s recommendation to approve a Preliminary Development Plan (PDP-09-08-05) for Northgate Commercial (aka: Diamondhead), containing approximately 31.005 acres, located south of West 6th Street between George Williams Way (extended) and the South Lawrence Trafficway/K-10, subject to the following revised conditions:
1. Approval and recording of a Final Plat prior to release of a Final Development Plan for issuance of any building permits for any portion of the proposed development;
2. Execution of an agreement not to protest the formation of a benefit district for future street and intersection improvements for W. 6th Street, George Williams Way and Ken Ridge Drive;
3. Execution of an agreement not to protest benefit district for traffic signals at W. 6th& George Williams Way;
4. Provision of a note on the face of the Preliminary
Development Plan that states:
a. Geometric improvements for the intersection of W. 6th Street and George
Williams Way shall be
constructed with the initial phase of commercial development.”
5. Provision of a revised Preliminary Development Plan to provide a phasing plan per 20-1010(b) (13) that shows timing of improvements ;
6. Provision of a note referring to Section 20-1011(f) allowing for a waiver of property rights to change the plan in the future;
7. Provision of tow pedestrian paths in the west and central portion soothe development; and
8. Revision of 4A as follows: “Geometric improvements for the intersection of W. 6th Street and George Williams Way shall be constructed as necessary before each phase of commercial development”
9. Provision of a note on the Preliminary Development Plan that states: “The Planning Commission shall have the authority to establish additional use restrictions on the Final Development Plan. Such restrictions may be based in part on the completed Retail Market Study database and recommendations on suggested specific uses that are not appropriate.”
Motion carried unanimously. (30)
Kubota said he noticed in the comments that that matrix was supposed to be for 150,000 square feet. He said what scared him were the projects that were under 150,000 square feet. He asked why the line was drawn at 150,000 square feet. He said the City Commission should look at where it should be drawn an individual building on an individual site or multiple buildings on a multiple site.
PUBLIC COMMENT:
Michael Almon, Lawrence, said he wanted to start with two phrases which were “transient shelter” and “soup kitchen.” He said it was safe to say that most people in the east side neighborhoods were not opposed to a Salvation Army Facility being in their neighborhoods, but what they did not want were all of the negative impacts from those two particular uses occurring at the Salvation Army Facility on Bullene Avenue.
He said when the City Commission deferred the initiation of the rezoning, in all due respect, he appreciated the Commission's concern in trying to balance the interest of both parties. But while the Commission may know it, he was not sure that the public understood there were two parallel tracks going on.
The first parallel track was that the Burrough’s Creek plan called for the initiation of the rezoning of the Salvation Army, a rezoning which was unanimously approved by the Planning Commission and the Burroughs Creek Plan Committee as well. He said that was the track that gave the neighborhoods the opportunity for public oversight, public review, public hearings, and public comment.
The other parallel track was the third site plan that was submitted by the Salvation Army late this afternoon, which was for their very same facility. He said a year ago the City Commission granted the SA one final extension of a site plan which was not eligible for any renewals. The zoning code apparently allowed the SA to file another site plan and they were hanging their hat on the hope that this site plan would allow the SA to grandmother their facility over to the new code without public review, use permit review, or a zoning hearing. Whether that was true or not, remained to be seen. He certainly questioned whether that would grandmother the SA over, but that was what they were hanging their hat on. He said the SA was trying to avoid the public oversight, public review, public hearings, and public input.
In trying to help the Salvation Army accomplish their aspirations in this project, the City Commission deferred the rezoning o that they could meet with the neighborhood to try and iron out differences which was fine. But at the same time, such a meeting is not a public hearing, is no guarantee for the neighborhoods, and is no substitute for what the code called for. The code calls for public meetings, by which the potential conflicting interest of all parties were weighed, balanced, and resolved. A private meeting with the SA would just repeat the 6 or 7 private meetings that had already occurred with the SA, and which brought no results. He said the neighborhood had not gotten any commitment from the SA that they would not have a “soup kitchen” or a “transient shelter.” He said if the neighborhood walked into that meeting and this new site plan was still in the works, the neighborhood would hold no power in negotiations at all and the SA would hold the hatchet over their head. He said those two parallel tracks were playing off of each other, one was to avoid the public review and the other was to allow for public review.
It was acknowledged two years ago, when the City Commission approved the SA first site plan, that the existing code had a major flaw that allowed the SA to do this facility without the use permit review simply because if was industrially zoned. Thanks to the diligence of Commissioner Schauner particularly, and the City and Planning Commission, you saw to it that that loophole was not allowed to occur in the new code which would take effect in a couple of months.
However, we are not in that new code yet. He said they stood to lose in the 11th hour of the old code what the City Commission was hoping to avoid in the new code. He said if the City Commission was sincerely interested in seeing that the interest of both parties were equally represented and aired on an equal footing while deferring the rezoning hearing, which provides public opportunity for comment, the City Commission should simultaneously defer the SA site plan until this issue was resolved over the “transient shelter” and the “soup kitchen” issue.
In all fairness that was the least the City Commission could do. The only other recourse the neighbors would have was to go to court. But the zoning ordinance allowing the SA to do this makes a farce of the fact that the City Commission stated that there would be no more site plan extensions.
He said this new site plan was in the pipeline and April 7th was the deadline for staff to submit their comments. This issue would come before the City Commission in a couple of week and he asked that the Commission defer this site plan until July 1st, or more precisely until the new Land Development Code takes effect.
Vice Mayor Amyx said the offer that was made to meet with the neighbors and the Salvation Army came from the comments that the City Commission gave a year ago during the time of the extension of the site plan. He said one of the comments in the minutes that the City Commission made was to ask the Salvation Army to meet with the neighborhood to iron those issues out. He said he did not know the outcome of that meeting, but if he could help facilitate a meeting, as a representative of the City Commission, he would be glad to help.
Almon said he certainly appreciated the efforts that Vice Mayor Amyx was making, but his only concern was that it was not a public forum and held no legal weight. He said Vice Mayor Amyx’s efforts were admirable and that it might be fruitful for the neighbors, but it might not because the Salvation Army held all the cards. If the City Commission simply deferred the site plan until July 1st, they would all be on equal footing.
Commissioner Schauner said Almon made a good point that if, in fact, the new site plan was essentially a Siamese twin of the one that was about to expire in May, he asked why would staff even accept that site plan or permit that site plan to get into the pipeline. He said it was a fairly transparent attempt to get a new life on a plan that was about to die without any ability to be resuscitated. He said he was trying to understand why they would even act upon that plan.
Corliss said staff would need to take a look at that site plan, but one quick response was that the City’s laws required the City Commission to accept that site plan. He said the SA had zoning in place that allowed the SA to submit a site plan for the proposed uses that were set out in the site plan and according to the setback and all the other restrictions on that site.
Commissioner Schauner asked how the City Commission could put teeth in the limitation on the extension.
Corliss said he needed to look at that issue. He said staff knew the SA was likely to submit a new site plan, but he did not know it was going to be submitted before the existing site plan expired. He said he was hopeful that the discussions with the Vice Mayor would enable everyone to get to those concerns and have a meeting of the minds to get both the neighborhoods interest and the Commission’s interest. He said he needed to see whether or not the City Commission was not going to extend the site plan and someone submitted a new site plan, what that would mean under the code. He said staff would see what they could do to respond to that concern.
Almon said two thoughts come to mind. As he understood, under the zoning code, a new site plan had to be substantially different than the old site plan. In the old code there was another flaw that had been corrected in the new code, which is that “substantially” was not defined but it is in the new code.
He said the other item was that the law required that the City Commission act on a site plan, but it did not indicate how soon. Therefore, it could be deferred until the new land use development code took effect. If the City Commission wanted to make this fair, it could be done legally.
Commissioner Schauner said he wanted Vice Mayor Amyx to have both parties with some equivalency of authority or power in that discussion. He said if the meeting was going to be productive, it needed to be one in which both parties were motivated to reach some common ground.
COMMISSION ITEMS:
Commissioner Rundle requests discussion of the 8th and Pennsylvania project.
Mayor Highberger said there was a suggestion by Commissioner Hack to discuss the 8th and Pennsylvania project on the same day as the Community Commission on Homelessness study session.
Commissioner Hack asked Janet Good if she would share information with Bo Harris.
Consider a motion to recess into executive session for the purpose of discussion of non-elected personnel matters for 15 minutes. The justification for the executive session is to keep personnel matters confidential at this time. The regular meeting will resume in the City Commission meeting room.
Moved by Rundle, seconded by Schauner, to recess into executive session for the purpose of discussion of non-elected personnel matters for 30 minutes with the justification for the executive session to keep personnel matters confidential at this time and to extend the meeting for 15 minutes. The regular meeting will resume in the City Commission meeting room. Motion carried unanimously. (31)
The Commission returned to regular session at 10:15 p.m. at which time it was moved by Schauner, seconded by Amyx, to adjourn. Motion carried unanimously.
APPROVED _____________________________
Dennis Highberger, Mayor
ATTEST:
___________________________________
Frank S. Reeb, City Clerk
1. Bid Date – Phase II, Downtown Waterline Improvement Project, April 11.
2. Bid Date – 2006 Overlay & Curb Repair Program, Phase 2, April 11.
3. Bids – 2006 Overlay Program Phase 1 to LRM for $947,630.60.
4. Bids – Various Mowing to Harrell Lawn Care for $13,180.30 (Wastewater Treatment Plant) Outdoor Art for $7,420 (Lift Station); and KH Landscaping for $13,400 (Water Treatment Plant)
5. Bid – Backhoe to Murphy Tractor for $28,715.89. (sole bid)
6. Agreement – 2006 Cured-in-Place-Pipe Program with Utility Maintenance Contractors for $459,102.
7. Engineering Service Agreement – Kaw Wastewater Plant to assess condition of bldg.
8. Purchase – 5 buses for University of KS & Ride Bus System from Optima Bus Co. for $1,348,005.
9. Ordinance No. 7981 – 1st Read, rezoning 2.19 acres from RM-3 District to RM-1 District.
10. Ordinance No. 7982 – 1st Read, rezoning 1.22 acres from RM-1 District to RS-2 District.
11. Resolution No. 6628 – Condemnation for the improvement of Kasold from Bob Billings Pkwy to S 22nd.
12. TSC – “No parking” S side of Century Dr., & E side of the 600 Blk Conn.
13. TSC – “No parking” E side of 600 Blk Conn.
14. Ordinance No. 7987 – 1st Read, “No Parking” S side of Century between Crestline & Madeline & E side of 600 Blk of Conn.
15. Benefit District -Southwind Capital, K-10 W bound; E 23rd, O’Connell Rd & 25th St Terr, E 25th ST Terr from O’Connell to Franklin.
16. Lease Extension – Riverfront LLC for office space at the Riverfront Plaza.
17. 6’ sidewalk to the N Michigan bridge over KTA.
18. Sale of 1.1 acres of City property, adjacent 1st Serve Tennis Complex, for $26,000.
19. RFP - Financial Advisory consultant services.
20. Mortgage Release, Sharen Edmonds, 1808 W. 22nd Street
21. Encroachment Agreement –Lawrence Community Nursery School, 654 Alabama, right-of-way.
22. 2006 USA Cycling Collegiate Road Championship Criterium Race.
23. Unsafe structure status – 429 Indiana Street.
24. City Manager’s Report
25. Ordinance No. 7985 – 1st Read, (TA-10-05-04) Development Code, November 11, 2005 Edition.
26. Ordinance No. 7986 – 1st Read, (Z-10-49-04) Zoning Map, November 11, 2005 Edition.
27. Ordinance No. 7783, Annex (A-12-14-03) 119.9 acres, S of K-10 Highway, between O’Connell & Franklin.
28. Burroughs Creek Corridor Plan first tier rezoning, M-2 O-1, Independence Inc.
29. Final Plat – (PF-11-43-05) 2.229 acres, 1801 Learnard.
30. Prelim Dev Plan – (PDP-09-08-05) Northgate Commercial, 31.005 acres, S of W 6th between George Williams Way & SLT/K-10.
31. Executive Session
32. 8th & Penn discussion.