PLANNING COMMISSION REPORT

Regular Agenda -- Public Hearing Item

 

PC Staff Report

09/26/05

ITEM NO. 12: 

TEXT AMENDMENTS TO CHAPTER 21, CITY/COUNTY SUBDIVISON REGULATIONS  PERTAINING TO A REDUCTION TO SETBACKS AS A RESULT OF A GOVERNMENTAL TAKING

 

TA-07-04-05: Consider Text Amendments to Article 12, of the City/County Subdivision Regulations; Chapter 21, of the Code of the City of Lawrence, that pertain to the enforcement and exceptions to building setbacks which are solely the result of a governmental takings for public right of way, easements or other governmental use.  Initiated by the City Commission at their meeting on September 6th, 2005.

 

 

Reason for Request:

Identification by KDOT in a letter regarding on-going legal cases that a review of the damages created by governmental takings for additional easement/ right-of way would be prudent.

 

 

STAFF RECOMMENDATION:   Staff recommends approval of the proposed text amendments to sections 21-1202, 21-1203 and 21-1205 of the City/County Subdivision Regulations and forwarding a recommendation for approval to the City Commission and the County Commission.

 

 

KEY POINTS

  • An exception resulting from a governmental taking does not create a violation of the subdivision regulations.
  • An appeal of a reduction in setback as a result of a governmental taking is not required.
  • A new section clarifying how the section is to be interpreted was added to be consistent with current Kansas Statutes.

 

 

PUBLIC COMMENT RECEIVED PRIOR TO PRINTING

     None.

 

 

STAFF REVIEW

 

In response to recent court cases where claims of extraordinary damages as a result of a permanent easement acquired by the State for right-of-way purposes, the city staff has reviewed the existing regulations to cure or resolve the issue of  the city’s interests in regard to the acquired property.  It is in the best interests of the City to be in a position in the future, should a similar circumstance arise, to be responsive to a situation that would result in reductions in building and parking setbacks as a result of a governmental taking, thus being able to make the property whole again and reduce negative impacts resulting from the taking. At the time of governmental acquisition or taking, the governmental entity acquiring the necessary property interests can also seek to cure any public or land use harm associated with the acquisition.  For example, if the taking reduces a setback area used for green space, the government can make additional green space acquisition part of the acquisition.

 

 

This Article in the Subdivision Regulations was adopted in 1990 based on KSA 12-705(c),   the predecessor to the current KSA 12-765. The omission of the Interpretation language is critical to the proper enforcement of this regulation.  Another provision of the Kansas Statutes is that appeals from this section shall be to the Board of Zoning Appeals.  This language was carried forward in the text that was adopted in 1990.

 

There are no recommended deletions of text from Article 12 therefore, the existing regulations are not shown separately from the proposed regulations. The proposed regulations are identified by italics and underlining.

 

Proposed Regulations:

ARTICLE 12. BUILDING SETBACKS, ENFORCEMENT, EXCEPTIONS

21-1201.        BUILDING OR SETBACK LINES ON MAJOR STREETS OR HIGHWAYS.

Building and parking setback lines are hereby established on certain major streets or highways as follows:  West Sixth Street from County Route 13 to Monterey Way:  setback line of 50 feet.

21-1202.        EXCEPTIONS.

(A)       In the event that a governmental taking or acquisition for right of way, easement or other governmental use would reduce a setback that previously complied with this Article, that reduction in setback shall not be deemed to constitute a violation of this Article.

(B)       Any non-conforming residential building or structure located within the 50 foot building and parking setback, which is damaged by fire, flood, explosion, wind, earthquake, war, riot, or other calamity or Act of God, may be restored or reconstructed provided; said restoration or reconstruction occurs on the original foundation.  The building or structure may not be rebuilt to a greater density than existed before the damage.

21-1203.        APPEALS-SETBACKS.

Notwithstanding Article 8 of this Chapter, any appeal of the building and parking setback line established for major streets or highways shall be to the Board of Zoning Appeals, provided that no appeal shall be required in the instance of the reduction in a setback resulting from a governmental taking or acquisition for right of way, easement or other governmental use, as provided in Section 21-1202.  The Board of Zoning Appeals shall have the power to modify or vary the building and parking setback line in specific cases in order that unwarranted hardship, which constitutes a complete deprivation of use as distinguished from merely granting a privilege, may be avoided.  In the absence of such a hardship, the intended purpose of the building and parking setback line shall be strictly observed.

21-1204.        ENFORCEMENT.

No building or occupancy permit shall be issued for any new building within the plat approval jurisdiction of the City of Lawrence, or the unincorporated land in Douglas County, which fails to comply with the requirements of this Article.

21-1205.        INTERPRETATION.

The provisions of this Article shall not be interpreted to deprive the owner of any existing property or of its use or maintenance for the purpose to which such property is then lawfully devoted.