The applicant asked
the Commission to consider extending the meeting to another date and deferring
Items 21A-21G for discussion when the group was not so tired. All parties agreed these items would likely
require extended discussion and all items were deferred to Monday, October 10th
at
The Commission moved at this point to
Item 22.
Items 21A-21G were taken up again on
October 10, 2005.
STAFF PRESENTATION
Mr. Patterson introduced the items, an annexation, multiple
rezonings and a preliminary plat for a mixed-use development covering
approximately 122 acres. He noted the
subject area’s location at the northeast corner of
Mr. Patterson explained some of the long-range planning
history of the general area, including the Northwest Area Plan that identified
all of the uses included in the proposed plat but in different locations and
with different densities. The history
also included the 2003 6th & K-10 Nodal Plan, which also
identified similar uses at different densities.
Staff’s recommendations generally supported their
determination that the development request was premature, based on concerns
about the City’s ability to provide adequate services and capacities. Mr. Patterson said the applicant would need
to revise the plat to adhere to the adopted nodal and area plan or provide
information that development of the proposed density could be supported. Capacity and service concerns centered on
three major elements:
1.
Wastewater/sanitary
sewer – The applicant is proposing a pump station in the northwest of the
subject property that will lead more sanitary sewer drainage to the east. Recent city-wide capacity shortages have been
identified. It is not yet known if the
existing sewer system could handle the heavier demands associated with this
development and it is the applicant’s responsibility to provide evidence
(wastewater analysis) that this proposal could be supported.
2.
Transportation
– Transportation 2025 (T2025) identifies
Mr. Patterson said the applicant
had provided a traffic study and a revised traffic study, but Staff was still
of the opinion that additional information is needed for the study to be
complete. Staff concerns included the
fact that, according to modeling by KDOT, Highway 40 will face level of service
failure in the future with existing and approved development to date.
3.
Stormwater
drainage – The plat shows five detention basins throughout the development, but
no drainage study has been provided for review by the Stormwater Engineer. It was noted that municipal water is being
installed in concurrence with the
Staff recommended denial of the plat based on a
determination that the plat is too intense to conform to the adopted nodal plan
and too much information is lacking about stormwater, wastewater and traffic
impacts. The applicant will need to
provide the missing information to convince the City Commission that
development of this intensity is supportable and appropriate in this location.
Mr. Patterson gave an overview of the proposed rezonings,
showing how each piece fit into the overall plat to provide a mix of adjacent
uses. He noted how each request compared
to the designated land uses in the nodal plan, explaining the nodal plan
provided an approximation of land uses without defining exact acreages or
densities. It was noted that the
applicant’s request was more intense than the adopted plans in all sections,
including a proposal for high-density residential – a use that was not included
in the nodal plan at all.
Staff’s recommendations for the rezoning requests were
based on a determination that nearly all of the requests fell short of meeting
all of the Golden Factors:
·
21B;
A to PCD-2: (don’t know)
·
21C;
A to RO-1A: Use of the Lesser Change Table to approve a rezoning to O-1 would
be more in conformance with the nodal plan.
·
21D;
A to RS-2: This use is appropriate according to the nodal plan and a larger
section of the overall development should be dedicated to this use.
·
21E;
A to RM-D: This use is acceptable according to the nodal plan.
·
21F;
A to RM-2: Use of the Lesser Change Table to approve a rezoning to RM-1 would
be more in conformance with the nodal plan.
Mr. Patterson noted a typographical error in the rezoning
Staff Reports and asked the Commission to change all references to medium
density at 16-21 dwelling units per acre to indicate a density of 7-15 units.
Although some of the proposed uses would be appropriate per
the nodal plan, Staff did not find any of the requests in conformance with the
standards set forth in the Comprehensive Plan.
Specifically, there were significant concerns about negative impacts on
adjacent uses and the ability to provide the development with adequate
services. For this reason, Staff
recommended denial of all five rezoning requests and suggested the applicant
revise the plat to fit the Comprehensive Plan or provide convincing evidence
that the development should be allowed to exceed the density and size
restrictions set forth in HORIZON 2020.
Mr. Patterson said the annexation request was for a
relatively small piece of ground (approx. 17 acres) in Service Area 2 of the
Urban Growth Area (UGA). However, Staff
recommended denial of the request based on significant concerns about the
City’s inability to provide services in a reasonable amount of time (within 5
years). Mr. Patterson said this property
was within a growth corridor and was expected to develop, but phasing and
timing issues were important and more information was needed about wastewater
and other utility capacities.
APPLICANT
PRESENTATION
Jane Eldridge spoke on behalf of the Mercato Group,
introducing members of ownership group and Landplan Engineering
representatives.
Ms. Eldridge presented several documents the applicants
believed supported annexation, including:
·
State
law permits annexation if they will create a straight or harmonious City
boundary line.
·
State
law permits annexation if a written petition is submitted from the property
owner.
·
State
Law says the preparation of plan for extension of services shall not be
required for or as a prerequisite for annexation of land if all owners submit a
written petition.
·
State
law defines the Planning Commission’s role in annexations as one of review for
compliance with the Comprehensive Plan or any other adopted land use plan
applicable to the annexation request area.
City annexation policies:
·
The
intent of City annexation policy is to make the City boundary straight to
prevent confusion over service delivery and to avoid enclaves of unincorporated
property.
·
Annexation
policy encourages property owners to submit for annexation of all portions of
land they hold that should logically be included within the City boundaries.
·
Annexation
policy does not wish to create boundaries with irregular shapes.
·
HORIZON
2020 states that the City will actively seek voluntary annexations with the UGA
as development is proposed.
Comprehensive Plan:
·
HORIZON
2020 requires annexation of all contiguous property adjacent to the City limits
prior to development.
Northwest Area Plan
·
The
Northwest Area Plan states that this area should be planned in advance for
urban development with no exclusions noted.
·
The
Northwest Area Plan adopted in 1997 included this 17-acre parcel in the
conceptual land use map.
Wastewater Master Plan:
·
The
Wastewater Master Plan says the sanitary sewer system is currently designed to
serve Sections 28 & 29 of the Northwest Area Plan.
·
The
WWMP identifies two sub basins for Baldwin Creek and updates of the plan have
been done for these sub basins based on the increase in development and
population projections.
·
Black
& Veatch population counts for Section 29 (containing the subject property)
have nearly doubled and drainage basin improvements have been recommended in
the WWMP.
6th & K-10 Nodal Plan
·
The
nodal plan refers to a need for two pump stations, and says sewer and water
services are easily extended into the eastern half of the plan area.
Ms. Eldridge said that when the City applied to KDOT for
funding to widen 6th Sreet, the application stated that road
improvements were needed to support 2.3 million square feet of commercial uses
in this area. Also as part of that
application, Dave Corilss, Director of Legal Services, spoke in support of
annexation of .5 miles on each side of
Ms. Eldridge said the applicants believed their proposal
was in conformance with the Northwest Nodal Plan, the Wastewater Master Plan, the
6th & K-10 Nodal Plan, and the Comprehensive Plan and should
therefore be approved. She said Staff’s
recommendation was contrary to State Law and adopted policy documents and it
was not within the Planning Commission’s authority to take action outside of
these documents.
Ms. Eldridge said sewer concerns should not be allowed to
cloud the issue. This property was “a
long way away” from actual construction and it was not reasonable to delay the
development approval process. She added
that capacity needs could not be determined, thus proper planning could not
take place, without annexation and rezoning.
She encouraged the City to plan development and design sewer capacity to
follow, not the other way around.
Mr. Herndon described the applicants’ efforts in preparing
the area for annexation and development, including participation in a benefit
district for the new lift station and installation of sanitary sewer
lines. The property owners also paid to
extend water lines across the SLT to serve this corridor. Mr. Herndon said these infrastructure
improvements were done in good faith on an assumption that this land, as part
of the UGA growth corridor, was anticipated for urbanized development. With these improvements complete and the end
of the
Mr. Herndon said the rezoning requests outlined a mix of
uses including commercial, multi-family, single-family and duplex
residential. He explained how this mix
and its proposed densities compared positively to the guidance of the nodal
plan and other adopted land use documents and also matched the mix approved for
the southeast corner of the node.
Mr. Herndon referenced comments in the
Mr. Herndon also referenced comments made during
development of the nodal plan about the “need for a development-driven
proposal” to focus efforts on designing the area down to the local street level
while at the nodal plan stage. He said this proposal provided that level of
planning, down to local street design, easements and utility connections, in
addition to supplying a full traffic study at “tremendous expense.” He said this proposal also brought a
marketing study that was not available with the nodal or area plans.
Mr. Herndon said the issues identified in the Staff Report
regarding additional information were not adequate reason to deny or defer
action on the annexation and rezoning requests.
Furthermore, he said the information Staff asked for could not be
gathered until land uses were designated.
A user would not be found for the property until the area was at least
zoned and platted, so traffic generations and sewer requirements needed to test
capacity were as yet unavailable.
Mr. Herndon outlined how, in the applicant’s opinion, the
rezoning requests met each of the Golden Factors and should therefore be
approved.
Mr. Herndon made comments about the road design shown in
the plat:
·
Staff
recommended eliminating the frontage road in favor of another access design,
but the authority to mandate that termination lies with KDOT, not the
applicant.
·
Transportation
2025 says a collector is needed in this area, but this document serves as a
guide and the existing frontage road could be improved to serve as that
collector instead of
There was discussion between the Commission and the
applicant about alternate road alignments and designs. Staff responded to questioning that extending
the frontage road as a collector would require additional right-of-way from
that property owner.
Burress said he understood the project attempted to work
within the guidelines set forth in the planning documents that were in place
when the project began and noted the fairness issue inherent in the fact that
the proposal had to be reviewed according to planning policies in place today. Mr. Herndon responded that it was
unreasonable to adopt a policy requiring a study (traffic, drainage, etc.) and
then ignore the results if that study.
Mr. Herndon said this kind of development was needed and
asked what other intersection would be more appropriate. He said the applicant had provided a
compelling explanation of why this was the right time and place for this
proposal.
Staff responded to questioning that the applicant chose the
consultant for the Market Study because the City did not have a consultant on
board to complete the study at that time.
The study was reviewed by an independent consultant after completion.
There was discussion about the applicant’s legal
interpretation of the Planning Commission’s inability to deny the annexation on
the basis of infrastructure needs because the request was initiated by the
property owners. It was noted that these
arguments were presented to Staff and Legal Counsel. Mr. Corliss had responded by pointing out
that the law did not dictate the City Commission’s authority in these
cases. It was suggested that the intent
of State law was to protect landowners from overzealous annexation attempts by
the City and the City was not required to ensure service provision if the
annexation was voluntary on the part of the landowner.
It was noted that the plat included land that had been
annexed unilaterally but allowed to keep it’s A (Agricultural) zoning for
several years. In cases of owner
initiation, it was common practice to request the property owner to bring an
rezoning request in conjunction with annexation.
Burress commented that the applicant had presented many
reasons in support of annexation, but asked if any of the documents referenced
tonight, in the applicant’s opinion, required
annexation in this case. Ms. Eldridge
replied that “good planning principles” were the only thing requiring
annexation.
There was discussion about the predicted failure of
PUBLIC HEARING –
rezonings only
Professor Kirk McClure spoke about the market analysis, saying the intent
of this study to determine if the community could absorb a given amount of
commercial space in a reasonable amount of time without causing significant
harm to the existing commercial market.
Prof. McClure explained several reasons he believed the developer’s
analysis of the market study was incorrect.
1.
The
use of population data as a proxy for market demand is not an uncommon practice
but is inferior to a consideration of retail spending, specifically sales tax
data that is available only to the City.
HORIZON 2020 calls for this level of review but a mechanism to
accomplish this has not been put in place.
2.
Population growth has slowed significantly in
recent years, but this market analysis is based on an assumption that
population growth rates will exceed the peak growth rates of 1990’. There is no evidence to support that
assumption. Recasting the study with
lower growth rates indicated the City could not absorb the proposed amount of
commercial development, even if no other additional commercial square footage
were allowed anywhere else in the City.
It was questioned how the City
could be overgrown with retail space, when residential growth had outreached
utility capacities. Prof. McClure said
the City was “still paying for past mistakes” in allowing too much retail
growth to occur too quickly.
3.
The
study’s analysis of vacancy rates assumes the market is currently in balance,
which is not the case. Many commercial
spaces are being converted to office uses because the retail market is
overbuilt. This kind of conversion is
not desirable because it deprives the City of sales tax revenues and negatively
impacts the office space market.
4.
The
City paid $8 million for a parking garage to support Downtown businesses and
the redevelopment of the 900 block of
It was discussed that some of the
commercial spaces converting to other uses had to do so because, as commercial
uses, they were outmoded and did not fit modern-day retailing needs. Prof. McClure noted that some converting
spaces were not that old, evidencing the Tanger property and other shopping
center developments.
There was also discussion about
retail “leakage”. Prof. McClure said
some leakage was preventable but some was not.
He said it was not reasonable to think that any retail use could be
successfully integrated in
Melinda Henderson made several comments about the proposal:
CLOSING COMMENTS
The
applicant’s representatives stated:
·
Developers
make decisions based on long-term expectations derived from adopted planning
documents and policies.
·
It
is important to consider what the law and adopted policies state, which is that
annexation is supposed to occur when it accomplishes the things that this
annexation will accomplish.
·
No
one has stated an opposition to the information contained in the market study.
·
KDOT’s
road design may be inadequate, but enough right-of-way has been obtained to
improve the road up to 7 lanes.
·
This
applicant would like the same consideration that was given to the commercial
development on the south side of
The applicant requested the Commission vote on the
annexation first. If the annexation was
denied, the applicant asked for deferral of the remaining items. If the annexation was approved, the applicant
had prepared suggested conditions and findings of fact to consider for the
rezonings and preliminary plat.
Haase said his decision would be heavily guided by the
commercial chapter, which gave clear guidelines about how this node should be
developed. He said the proposal appeared
to rely on regulations that were in place before the adoption of the Commercial
Chapter and asked, if the applicant thought the chapter shortchanged the
intersection, why concerns were not raised when the chapter was being
developed.
Haase said the nodal plan did not specify square footages
but did place “strict parameters [on development] that this proposal clearly
violates.” The applicant said this
proposal also did not identify specific commercial square footages. The information today designated a square
footage to be rezoned but the amount of that total square footage that would be
constructed with a commercial building would not be identified until the
development plan. Designating zoning now
allowed the applicant to begin talking with prospective buyers to consider what
building square footages to propose.
It was suggested that the Commission place significant
density restrictions on the rezonings.
Staff noted that, for the PCD-2 portion, the Commission could state a
maximum square footage coverage, regardless of the acreage. For the other requests, the Commission did
not have authority to control how much of a commercially-zoned area could be
used for commercial use. Related to this
issue, it was discussed that the practice of requiring a development plan to
accompany a rezoning request had become less common.
Mr. Patterson stated Staff’s disagreement with the
applicant’s statement that no action taken tonight would impact the existing
situation on
Mr. Patterson said this area would be developed at some
point, but Staff had significant concerns about timing, phasing, service
capacities and infrastructure that made this request, in Staff’s opinion,
premature.
It was verified that the request was significantly larger
than allowed for this node by the Comprehensive Plan, but the proposal was not
exclusively commercial and included a mix of office and residential uses as
well.
Ms. Finger responded to questioning that, at this time, the
City held a position that annexation should not occur if services cannot be
provided within five years.
COMMISSION DISCUSSION
The Commission discussed reasons in support of annexation:
·
The
subject 17 acres will be infill development in the future if the corner is not
shored up today and it would be preferable to deal with the entire piece than
try to retrofit this section later.
·
The
property owners are aware they cannot be provided with services today and have
made a good case regarding provision of service requirements in voluntary
annexation vs. unilateral.
·
Significant
issues have been raised about growth occurring almost exclusively in this part
of the County, so that is where solutions will be focused. This makes it more reasonable to believe
services may be provided within five years.
·
It
is clear that it was an oversight that this section was not annexed
previously. It will ultimately have to
be annexed so it can be included in the overall development picture. There is no gain in denying annexation today.
Reasons in support of denying the annexation request were
also discussed:
·
Staff
is concerned that the subject property could not be supplied with adequate
public services within five years.
·
Administrative
Policy 74 states that “annexation ensures coordination of services and
infrastructure.”
·
·
Policy
does not state “provision of services within five years”. Policy requires a plan showing how service
can be provided within five years and there is no such plan in this case.
It was questioned how difficult it would be to integrate
the subject 17 acres into the Northwest comprehensive service plan. It was noted that the area would also have to
be incorporated into the Wastewater Master Plan, which would be complicated
because of area topography.
Meeting extended to 10:45 p.m.
Burress asked what grounds the property owners would have
to sue the City for services in five years if annexation was approved
today. Staff said the development plan
would have to show phasing based on the ability to provide sewers and
accommodate traffic, so development could not proceed until plan for service
provision was established.
Haase said it was shortsighted not to provide space for
larger retailers, but he was not sure how to reserve land for this purpose
without giving development approval prematurely. He suggested the Commission return to the
commercial chapter for a community discussion to rethink the total square
footage allowance for the node.
Burress said he would oppose annexation because he did not
think annexation was required to ensure planning of this parcel with the rest
of the area. He added that this parcel
was on the boundary of the plat and thus was not “in the way” of other
properties.
ACTION TAKEN
Item 21A
Motioned
by Lawson, seconded by Eichhorn to approve annexation of 17.52 acres and
forwarding to the City Commission with a recommendation for approval, based
upon the following findings of fact:
Motion carried 5-4, with Eichhorn,
Harris,
COMMISSION DISCUSSION
The applicant presented suggested conditions and findings
of fact if the Commission chose to approve any or all of the rezonings.
There was more discussion about how much commercial square
footage could be developed, regardless of approved commercial acreage. It was noted that a development plan would be
helpful in establishing what actual square footages were proposed. It was
suggested that the scale was out of proportion, but questioned if the
commercial chapter needed to be rethought and possibly revised before approving
commercial zoning for areas so far over the chapter’s current restrictions.
It was suggested that denial of the rezonings would be
appropriate, aside from the commercial square footage issue, based on traffic
and infrastructure concerns.
Mr. Herndon repeated the applicants’ preference for
deferral over denial, to allow time to provide information as requested by
Staff. It was questioned whether Staff’s
rationale for recommending denial would become any less pertinent over the
deferral period. It was noted that the
Wade & Associate study was anticipated for completion in late 2005/early
2006, which would provide some of the missing information needed to
appropriately review development proposals in this area.
ACTION TAKEN
Motioned
by Eichhorn, seconded by Burress to defer Items 21B – 21G to the January 2006
meeting.
Motion carried 8-1, with Burress, Eichhorn, Erickson,
Ermeling, Haase, Harris,
DISCUSSION ON THE ACTION
It was
verified that this deferral would not prevent Item 21A from going forward to
the City Commission.
The Commission moved at this point
to the end of the agenda.
STAFF PRESENTATION
Mr.
Patterson introduced the items, two rezonings intended to revert the subject
properties to their PID-1 and M-1 zoning categories. PRD-2 zoning had been approved and published
for the land in anticipation of a residential development that was no longer
proposed.
Staff
recommended approval of both requests as presented.
APPLICANT PRESENTATION
PUBLIC HEARING
No
member of the public spoke on these items.
COMMISSION DISCUSSION
The
Commission had no additional questions or comments.