Excerpt from the City Commission Minutes dated 3/28/06
Addendum: Comments by Michael Almon
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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.
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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 Ave.
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.