MINUTES FROM JUNE 6, 2006 CITY COMMISSION MEETING,

REGULAR AGENDA ITEM 9

Consider items related to the proposed Salvation Army facility to .be located on the west side of Haskell Avenue between Lynn Street and Homewood Street.

a) Consider Initiation of Rezoning for Burroughs Creek Corridor Plan first tier recommended for Salvation Army property from M-2 District to O-1 District or RMO (new development code district). Receive Staff report on zoning issue.

b) Consider approval of site plan SP-03-27-06:  A site plan for a Salvation Army Community Complex to be located on the west side of Haskell Avenue between Lynn Street and Homewood Street.

Mayor Amyx suggested that a one hour time limit be placed on this agenda item.  There had been two meetings with the neighbors and the applicant which were well attended.  He said the adjoining neighbors suggested that a Use Permitted Upon Review be applied, which would be required under the new development code.  He suggested limiting comments from three to five minutes regarding this issue. 

Michelle Leininger, Planner, presented the staff report.  The plan was approved by the Commission on February 14^th and upon approval of the plan, staff asked that 5 first tier rezonings be initiated in which 2 of those rezonings were initiated.  Independence, Inc., which was south of the Salvation Army site was given more time to consider the rezoning.  Independence Inc. site had moved forward and the rezoning item would be before the City Commission next week. 

At the March 28^th Commission meeting, the initiation for the Salvation Army was deferred to allow City staff, Salvation Army, and neighbors to come to consensus on some of those issues.  Two meetings had taken place on April 10^th and May 3^rd, where the neighborhood and Salvation Army proposed conditions, but there was no consensus. 

Staff recommended that instead of rezoning from an O-1 District in the current code, to rezone to RMO District in the development code because the Salvation Army and staff decided the zoning would be based on the purpose of description in the code and was more appropriate and because it was a more restricted that the O zoning district.  It would transition appropriately into a dense manufacturing district to the north and west.  Staff was requesting the property be rezoned to RMO.

Mayor Amyx said if the initiation was approved by the City Commission, he asked when this issue would be taken to the Planning Commission.

Sheila Stogsdill, Acting Planning Director, said July would be the earliest.

Wes Dahlberg, Lawrence Salvation Army Administrator, said they were requesting the City Commission not initiate down zoning of the Salvation Army’s property at Haskell and Lynn Streets as suggested by the Burroughs Creek Corridor Planning Committee. 

Mayor Amyx called for public comment. 

Matt Tomc, President of the Woods on 19^th Street Homeowners Association, said the issue was not whether or not this facility should be located on Bullene, but related to the land use reforms contained within the Burroughs Creek Corridor Plan and also the new development code.  He said he thought they saw a little bit of a contrast between the types of process they had and the types of process that were afforded to other neighborhoods.  He said they did not have an adequate amount of time to develop and address those issues that were of a concern to the neighborhood.  He said there should not be two sets of rules for different neighborhoods.  He knew there were all types of legal explanations and being a lawyer he understood.  The City Commission was not just a judge, but also policy makers and he asked the City Commission to look at the big picture. 

He said some of the families that lived in The Woods were present and one of the planning goals of that project was to bring new young families into the area.

He said he was not present to speak against the Salvation Army because they provided needed services to the needy in the community.  He wanted everyone to keep in mind the ends did not always justify the means.  The issue was the important land use codes contained in the Burroughs Corridor Plan and their development code and they wanted those codes to be upheld and implemented by the City Commission.  The rezoning that was offered with the Burroughs Creek Corridor Plan would allow a shelter facility, but would allow a Use Permitted Upon Review process. 

He said the Salvation Army wanted was to see the rezoning be denied from the Burroughs Creek Corridor Plan; and a 2 year variance into the new code, and the vehicle designed to accomplish that would be the use of a site plan to grandmother the Salvation Army over and to hold onto those rights and privileges in the old code and carry them into the new code, in which the Woods objected to.  The Salvation Army also wanted the City Commission to reconsider the condition that was placed on the renewal last year of no further extensions which seemed unequivocal.  He said he wanted it noted that if the plan was accepted, the ongoing review the Commission had with a UPR with periodic reviews, although a painful process, it would reach a compromise on issues which would no longer be available once the facility was built and the Commission would lose that ability to have that oversight and accountability that Commissioner Schauner was speaking about. 

In exchange for what was requested by the Salvation Army in their discussions, they were offered commitments that were attached to a construction site plan which was not adequate to address the neighbor needs and was a rather a novel idea, the conditions were drafted by the Salvation Army and they did not have the process to merit out which conditions were good and bad.   He said he was at a loss to figure out how this would be enforced in the same manner a UPR would be enforced.

He said last year the Salvation Army was in contact and negotiations with Kansas Department of Corrections concerning the housing of parolees which was reported in the newspaper and could not be denied.  He said the Commission planned this area in the interim when this whole Salvation Army process started with an eye toward attracting families and providing affordable housing.  He said a process needed to be identified that examined the appropriateness of that type of use and in the future.  That revelation was in total contradiction to the previous descriptions of the nature of that facility by the Salvation Army.  He said the idea was not well received by the Woods or the East Lawrence neighborhood.  In fact, at the first meeting where they discussed the shelter and at that time they were under the impression that it was a family oriented facility and there were very little objections or concerns at that point.  Those concerns now about the safety of the children and people in the neighborhood were now more acute with the parolee controversy. 

Regarding those discussions, the Woods had participated in good faith along with other neighbors.  He said if they were going to discuss this issue in the future, various members of the City Commission, including the Mayor, had taken certain positions on the homeless issue and it was  important that they had a neutral third party so it would give the process a little more of a real sense of a mediation process.  He said the special use permit process was the preferable method and they did not need a separate, but equal type of different processes for different neighborhoods and he suggested that they had access to the same processes as everyone else would. He said they wanted full participation in a meaningful forum.  He thought they needed to stop working against neighbors in certain projects that were controversial such as this project, but instead try to work together.  He thought the Burroughs Creek Corridor Plan should be honored, rezonings, and the land uses in the new development code because they were valid. 

In every town in this country, there were wrong side of the tracks, other side of the river, or the bottoms.  Those were arbitrary distinctions and in certain places blight and poor urban planning would be seen, especially when compared to traditionally more affluent areas.  The areas that had poor planning would typically include a demographic of younger families, working class families, and more of a multicultural demographic.  He thought East Lawrence was no different.  He said the Revitalization Plan, such as the Burroughs Plan and the Redevelopment Code brought much needed reform.  He said East Lawrence neighbors were gaining a seat at the table and were very important to the community as a whole.  He said they wanted equal access to the process designed to protect neighborhoods and did not think it was appropriate or fair, because an area was poorly planned traditionally because of one reason or another that neighbors were denied access to certain processes.  He said he did not think the Commission should grant exceptions for the new code because it was bad public policy and he thought that was being requested.  The Woods homeowners stood together along with other neighborhood groups in East Lawrence.   

Again they were not condemning the Salvation Army for wanting to help people in the East Lawrence area, but they could not agree with the problematic site plan.  They asked that the City Commission honor the condition imposed last year that there be no further extensions; move forward with the Burroughs Creek Corridor Plan rezoning; and adopt the new development code without exception.  He said there had been two years of an ability to build a facility without any restriction and dwelling on the old code needed to be stopped and move forward.  He asked the Commission to initiate the rezoning and deny the site plan until a special use permit was issued.  

Gwen Klingenberg, President of Lawrence Association of Neighborhoods, said there were two main points she wanted to make.  First, you could not condition or eliminate uses in a site plan; and second, the site plan being considered for the Salvation Army was too deficient to allow it to conform to the section on transitional provision 20-110b in the new code.  Any use or development activity for which a complete application was submitted to the City before the effective date and pending approval on the effective date may at the applicant’s option be reviewed wholly under the terms of the development code and effective immediately before the effective date.  If approved, such uses or development activity may be carried out in accordance with the standards in effect at the time of the application. 

The thinking of the Salvation Army was that by accepting a site plan tonight, it would allow them to continue without a Use Permitted Upon Review in the new code because the site plan would qualify as a development activity under Section 20-110b of the new code.  First of all, you could not condition the site plan in a way that conditions permitted uses, which was what the Salvation Army was trying to do.   A Site plan was a designed ordinance and dealt with things like landscaping, drainage, location of access and the like.  A site plan could not eliminate or restrict permitted uses in a conventional district. Conditional zoning of uses, meaning allowance of some permitted uses and not others was not legal in Kansas and conventional zoning districts unless the use in question required a UPR.  The process was important because a UPR allowed those uses to be conditioned in the variety of ways that made them more compatible with existing uses.  Trying to condition a site plan in the same way as a UPR, in a way that effected which uses were permitted and adds conditions to them that were not already required by the zoning districts would be wishful thinking, but not legal and not enforceable. 

The site plan alone was not ordinarily a complete application that qualified for a building permit and therefore could not be considered as a use or development activity that would allow the plan to be carried over into the new code under the provision of transitional Section 20-110b.  A complete application included all of the information needed to qualify for a building permit, in this case, a plat and the additional information required of this particular site plan to make it conform to regulations.  The site must be at least platted before it would qualify.  The plat must conform to a development, not present plans or plats from past decisions. 

In the zoning code 20-1428, site plan approval, development means any man made change to improved or unimproved real estate including but not limited to the construction or placement of building, structures, or other man made fixtures or the paving of ground or any combination of those.  Development did not include filling, grating, or excavation.  The definition of development activity was any human made change to premises including, but not limited to, the erection on conversions, expansions, reconstructions, renovation, and so forth, but required substantial construction changes. 

Complete application was explained under Article 5, building and occupancy permits of the present code.  A recorded plat of the subdivision or a ratified lot split was made available for the builder’s official examination; required public improvements had been substantially completed to provide for adequate occupancy of subdivision, a certification by a licensed engineer or land surveyor and there had been compliance with this regulations and conditions of a plat approval. 

Also, K.S.A. 12-764, approval of site plan, did not in itself vest any right.  Approval of a site plan did not in itself invest any rights under K.S.A. 12-764, rights vested only after the related building permit was issued and substantial construction had begun in reliance on the permit.  Rights in the entire site plan shall vest under K.S.A. 12-764 upon timely issuance of an initial building permit and completion of construction in accordance with that building permit or upon timely completion of substantial site improvements and reliance on the approved site plan. 

Since all of the above showed the site plan did not constitute a use or development activity and was not a complete application on its own, a site plan approved tonight did not meet the criteria stated in section 20-110.  Therefore, a site plan presented may not be carried out in accordance with the standards in effect at the time of the application. The site plan could not be grandfathered using section 20-110.

Beth Ann Mansur, Brook Creek Neighborhood Association, said their neighborhood felt the Salvation Army was abandoning its responsibility to the homeless.  The Salvation Army wanted to change the direction of their business and focus on a specific population of homeless people, the rest of the population they were leaving with no plan in place to address their situation.  Secondly, the City had no plan in the works to care for that population.  It was no secret that no one wanted a homeless shelter in his or her neighborhood.  Yesterday’s newspaper article covered some of the hassles that occur, yet it was also no secret that downtown Lawrence and the Chamber, the powers at be of Lawrence, did not want a homeless shelter downtown, but downtown was where the shelter should be.  The homeless were attracted to downtown areas.  It had been going on for decades and would continue to go on.  Abandoning those people by the Salvation Army and the City away from downtown was not going to rid downtown of homeless people. 

Those problems that had never been adequately addressed were: 1) what to do with homeless that did not work with Salvation Army’s new format; and 2) the discussions with the Kansas Board of Corrections about parolee housing.  They needed the use permitted upon review.  She said when she asked Mayor Amyx at the second meeting with the Salvation Army about how enforceable were conditions attached to a site plan and the Mayor replied that those conditions were not enforceable and that a new City Commission could void everything.  She said Mayor Amyx stated in yesterday’s newspaper, when commenting about the neighbor’s concerns with the Lawrence Community Shelter, that it was important to remember that permits had conditions and special uses that were to be met.  They wanted the neighborhood’s concerns addressed and what to see the right thing to happen.  The right thing to happen would be to listen to the neighborhoods.  She said they needed the Commission to approve the rezoning and deny consideration of the site plan until a special use permit was issued. 

She presented a petition to City Commission that had signatures from businesses and homeowners concerned about trespassing, vandals, and the property values.  Since this chart was made, they had three more houses on Homewood sign and two more businesses in the shopping center at 19^th and Haskell Avenue.  The petition stated: “We the undersigned property owners, business owners, and/or residents of Brook Creek Neighborhood, Barker Neighborhood, and adjoining neighborhoods including the Woods, urge the City Commission to initiate rezoning of the Salvation Army site at Haskell Avenue and Lynn Street to O-1 (Office District), as called for in the Burroughs Creek Corridor Plan.  Please rezone the property before the new City zoning code took affect.  Also, we urge this rezoning take place before any new site plan is granted and that any site plan approval be deferred until after the new City zoning code takes effect.  While the facility with a church, offices, gym, and live in rehabilitation may be acceptable, they objected to any homeless transient shelter or community meal program being allowed there.  These two uses would attract vagrants to their neighborhood with the likelihood of trespass and inappropriate use of their parks.  Whatever the Salvation Army does there, they want the same right as the use permit process that the Oread Neighborhood and the Downtown Neighborhood have with the Lawrence Community Shelter.  Two years ago, they were denied the standard UPR process because of a loophole.  Their neighborhoods deserve the same right that the Salvation Army complied to conditional uses and periodic review of those conditions.  She asked to close the use permit loophole by rezoning now and deferring site plan approval.” 

Michael Almon, Brook Creek Neighborhood Association, said just as a preface, he was sure that the comments that Klingenberg made had not been overlooked by one of the best land use attorney’s in Lawrence or City staff and they probably had some legal answers because there were lots of legal interpretations and gray areas; and possibly those types of questions would need to be resolved in court, but he hoped it would not get to that point.   The reason he stated that was because he had facts to point out that he felt rendered a site plan as inappropriate and unenforceable and reasons why the rezoning was the way that would not only benefit the neighborhood, but also the Salvation Army.      

The site plan method had been a foiled or a diversion, and not only never practically workable for land use controls, but was also illegal by Kansas law.  On the 23^rd of February this year there was a four page, very detailed, legal letter submitted by the Salvation Army’s attorney, Mr. Zinn, listing his interpretation of how the code would work and staff had used some of those ideas in developing their site plan review and zoning recommendations.  They subsequently met with staff with the current acting director, the current acting City Manager, and the current planner for rezoning on March 3^rd and came up with the idea of how they would implement the vehicle by which they would be able to carry on with a transient shelter and a soup kitchen which was mentioned many times in both of those documents was why they were trying to take that course with the site plan.  Their expressed intent was to circumvent the UPR for various reasons, one of which had been stated a number of times that they were trying to avoid the controversy surrounding this issue because it could harm their fundraising.  Nevertheless, they said they were implementing this method to avoid the UPR.  The rezoning, therefore, had been side tracked for 115 days as a result. 

On February 14^th the City Commission approved the Burroughs Creek Corridor Plan, which was approved by the Planning Commission and Burroughs Creek Advisory Committee unanimous approval rezoning of this site to O-2.  Both bodies chose that route so as to allow the Salvation Army to conduct their activities at that facility, but also to make sure there would be a UPR in place to simultaneously protect the neighborhoods.  The zoning was sidetracked at the March 28th City Commission meeting when the hearing was truncated and the idea of negotiating with the Salvation Army on the site plan was initiated.  The Salvation Army hoped to attach unenforceable commitments to the site plan.  When the Neighborhood Coalition from the East side proposed a set of legally worded, though still unenforceable, conditions at those negotiating meetings, the Salvation Army balked.  The Salvation Army wanted a site plan with something attached to it that would allow them to do what they wanted to do, regardless of what the neighborhood wanted.  In the Site Plan review minutes, Mayor Amyx specifically asked that the Salvation Army provide a quick response to the Neighborhood Coalition proposed conditions, but Salvation Army never did respond. 

The staff memo, in response to the neighborhoods coalition, indicated how a site plan could be enforceable, reviewed, who would be doing the reviewing, and on what basis.  In that staff memo, staff made a feeble attempt to address that agreement from May 3^rd for staff to explain legally how land use conditions on a site plan could be monitored, periodically reviewed, and enforced.  Staff gave a three sentence answer in their memorandum which was key to how the Salvation Army site plan supposedly would work.  The tool was a site plan performance agreement.   The three sentences basically stated the site plan would be notarized by the Mayor, signed by the applicant, and the neighborhood coalition would not be included.  The zoning enforcement inspectors “could” schedule inspections on a regular basis, not “shall” schedule inspections. 

The site plan performance agreement, Section 20-1433 of the City Code, was to specifically ensure a one time physical completion of all site specific requirements before an occupancy permit was issued.  He said after the requirements were met, the performance agreement would be history.  He said the site plan review was riddled with errors and the only way to go was to rezone.  He said surrounding land uses were identified as industrial uses, which was totally wrong.  All those uses were commercial and there was no manufacturing, which was determined in the Burroughs Creek Corridor Plan and was one example of wrong statements in the site plan review.  Attachment A was the 9 item commitments from the Salvation Army and there was no Attachment B, which were the conditions from the neighborhood coalitions and were not included.  He said their conditions were central to their negotiating position, yet it was not included in the staff report.

The Site Plan review findings of fact referenced the old code Section 20-1448, the UPR exemptions for six specific land uses was the loophole that was used two years ago for the Salvation Army to gain their site plan.  The loophole that Commissioner Schauner questioned, and loophole the Commission made sure was not included in the new code.  He said staff relied on that thinking as the vehicle by which not having a UPR was grandmothered over to the new code.  He pointed out that in 2002, that section was amended.  Prior to that section being amended, it did not effect whether a rehabilitation center could or could not fall into that category which was not changed in the amendment.  Other things were changed in response to a recreation facility.  In the process other wording was changed.  In the second to the last sentence, it was indicated that if those uses were located in commercial or industrial zoning districts, the requirement for a Use Permitted Upon Review “criteria” shall not be applied.  In staff’s site plan review it indicated the requirement for a Use Permitted Upon Review shall not be applied and he asked where was the word “criteria.”  He said Salvation Army Council had put all their eggs in the wrong basket because he did not believe that loophole ever existed.  That was something that might or might not be determined in court, but he hoped they would not reach that point.  

He said the UPR was the only acceptable way to resolve the differences at hand.  The Salvation Army was entitled to protect their interest and they could use the code as long as they were using the code legally.  The City Code was not for the purpose of protecting the interest of one party, at the expense of another party.  Any zoning code was initiated as intended to be a vehicle to balance the interest of all parties.  If the Salvation Army was trying to avoid controversy, that was all good and fine, but that was not what the code was for.  Whether or not they agreed the Salvation Army had a code granted loophole and the City Commission had the power to close that loophole at this time.  They could rezone the property now to a use that required a UPR which they believed should be RM-1 or RM-1A as Burroughs Creek Plan called for which converted to CO or a PUD. He said they did not want the RMO zoning because they did not think it was a less intensive use as staff had indicated.  First of all it was the highest density and had all types of uses including sorority/fraternity houses, soup kitchens, and transient shelters.  It included a lot of different uses that they did not feel was appropriate for their neighborhood. 

The second part of what the Commission could do to close that loophole was to deny the site plan.  If the Commission denied the site plan and passed the zoning there would be the UPR.  If the Commission tried to go the site plan route, the Commission would open a can of worms and nothing would be resolved for a number of years.  He said this issue was a political decision the Commission would need to make.      

Aaron Brown, President of Brookcreek Neighborhood Association, said the new RMO zoning was a new twist that he was not familiar with from their earlier meetings, but by covering this issue on two separate parts, which was the proposed new zoning and separately the site plan, he asked if it was the Commission’s intention to initiate a new zoning now with the plan that zoning would apply to the new site plan or did the Commission expect that if a site plan was initiated, that it would happen under the old codes and continued forward.

Stogsdill said staff’s recommendation was to move forward with a rezoning consistent with the Burroughs Creek Corridor Plan.  In consultation with Salvation Army representatives, it was felt that an RMO district was more appropriate than O-1 district that had originally been recommended by the committee.  Staff also recommended approval of the site plan.  Staff understood, through all of the years of work on the development code, that a site plan that was in process, before the development code became effective, could be executed under the old code.   An approval of a site plan would give the property owners a time period in which to construct that facility based on the site plan that was approved and the zoning would follow along.  

Brown said the short version was the new zoning had little effect on the validity of a given site plan that might be discussed because the site plan would come up and not be governed by the new zone.  The new zoning would apply if the proposed site plan went away, some new business came in for far in the future use of the zoning was his understanding.  He said with that idea in mind, Brook Creek Neighborhood’s position was in the general goal of adding more residential areas to the surrounding neighborhoods and to reduce the industrial zonings.  In short, the neighborhood would approve of down zoning away from industrial and down zoning to as low as they could get with the target of having a residential only area.  He said how that played into site plan issues and special use permits he would like to reserve the right to discuss those issues in part B, if there was a separate part B discussion.     

Mayor Amyx said all of those issues were intertwined and all those comments were being taken at one time.

Brown said again, whatever the City could do to add some neighborhood oversight on- going into the future, over the facility and the area was something the Neighborhood Association would be in favor of and it seemed the special use permit was written exactly for that purpose and would serve very well in this case that the site plan with corollary requirements did not seem to provide the level of enforcement and continuous attention to possible infractions that the neighborhoods would be concerned with.  He said in the interest of being able to monitor the site on-going in the future, they supported placing the site under Special Use Permit restrictions and not give a blank check for the site plan to do whatever it felt like doing.

Mark Cline said he would like to call for better accountability by the Lawrence Community Shelter.  He said Salvation Army should have its use permit reviewed by the City Commission annually.  He said for example, the Commission should weigh in especially if the Salvation Army flip flopped on housing felons.  If the Salvation Army was going to move to another location, the Salvation Army should give its existing building to the City so the City had complete control over the fate of that building.

The City Commission recessed at 8: 55.

The City Commission returned from recess at 9:03.

Dick Zinn, Salvation Army Planning Board, said the City Commission was being asked on one hand to promote the overall public welfare of the community which was a huge broad task and at the same time to balance that broad welfare with what was in the best interest of the entire community with neighborhoods and groups of people who had chosen to live in different parts of the community.  The neighborhood members had spoken and their concerns were legitimate and the Salvation Army tried to address those concerns for several years.  The Salvation Army had been looking for a new location to properly provide services to members of the community for approximately 5 years.  He said they had looked at over 20 sites and the site on Haskell was the site the Salvation Army selected, in large part because of the extraordinary generosity of the Scott family, to make that site available to the Salvation Army at a price they could reasonably afford to pay. 

He said concerning the zoning issue, Captain Dahlberg indicated the Salvation Army opposed the down zoning as recommended in the Burroughs Creek Corridor Plan and they did.  He said that recommendation was O zoning.  However, they did not object to having the site rezoned to RMO.  He said RMO was a category that would become available with the new development code, July 1^st.  He said the SALVATION ARMY request was that their site plan be approved, that down zoning be initiated, and that the conditions they had suggested be attached to the site plan that incorporated a number of the suggestions made by the neighbors as they offered their suggested conditions.  He said they agreed that the conditions attached to the site plan be made conditions to the rezoning because under the new development code rezoning could be conditioned which had always been the case.  He said the concern that was expressed that the conditions had no enforceability would no longer be the case and an argument would lose any merit whatsoever, if those conditions were attached to the RMO rezoning, to which they agreed.  In effect, what the Salvation Army was suggesting was they would be willing to have those conditions totally and unquestionably enforceable as conditions to the RMO zoning. 

He said Salvation Army had been asked, and Captain Dahlberg would respond in discussions of the site plan issues on why not follow the UPR procedure? The UPR procedure had become to fast of a way of dealing with land use decisions.   The UPR concept was not a concept that allowed stability in land use. 

He said he talked to a lender about another project, totally unrelated to this issue, who said, on his own initiative, that they would require their appraiser to value this property significantly lower because it was under a UPR.  The loan value of that property was diminished significantly.  He said transport that idea to the Salvation Army tract. He said they were asking members of the community to give through their generosity, approximately 3 million dollars.  He said they were asking the community to give to the stability of a project they knew had some certainty.  The experience of the issue of the Lawrence Community Shelter and a short-term extension of a UPR only affirmed the lack of stability of a UPR process.  If however, the Salvation Army had the site plan approved, with the conditions attached, and the down zoning to RMO was initiated, made effective after the new development code came effective on July 1^st, those conditions would clearly be enforceable.  He said they would have enforceable conditions and a site plan that had been presented as new site plan with the conditions, with consistent adherence to the rules that existed two years ago when that site plan was first presented.  Those were rules, but some say those were loopholes.  He said those were rules that offered certainty and predictability and the Salvation Army followed those rules and they asked that those same rules be applicable subject to the willingness to go ahead with the RMO zoning so the conditions clearly would become enforceable.                         

Mayor Amyx said Zinn stated that conditioning the zoning was allowed following the new development code.  He said there were items that stood out with discussion from the adjoining neighborhood, which dealt with the soup kitchen, 7 day a week operation, change in the mission of the Salvation Army to a more family oriented situation, and the comments about the people who had been  incarcerated.  He asked if a conditioned zoning would take on the appearance of a legal responsibility of a UPR. 

Corliss said one of the differences was with a UPR the City Commission had the ability and procedures for revocation.  With conditions for zoning, if the conditions were violated, under the new development code they would be able to place on conventional zoning, and it would be a zoning violation if the condition was violated, but the Commission would not be able to revoke the use.  The UPR could also have some other aspects that were set out in the code.  

Mayor Amyx asked why was there all that discussion about how important it was to condition zoning under the new development code.

Commissioner Highberger said the City would need to seek an injunction.

Corliss said the City could take them to court and require the Salvation Army to follow the conditions which was a powerful tool and something the City could ensure there was compliance.  The ability for the City to condition zoning allowed the City to, tailor specific conditions that were not spelled out in the zoning code for a particular land use and establish criteria and conditions that made that zoning category more palatable than what was already spelled out in the code.       

Commissioner Schauner said if there was a violation of the zoning as conditioned, the remedy would be either voluntarily cease and desist or a court ordered injunction.  He asked about what remedy the court could order.  He asked if the court could order anything beyond ceasing and desisting from the activity which was prohibited by the condition attached to the zoning.

Corliss said the court would order compliance with the law which would mean the Salvation Army would need to cease the unlawful activity and was the City’s goal with the condition in the first place.  

Mayor Amyx asked about a UPR compared to a conditional zoning.   He said a UPR was something that a neighborhood would hold as that special tool to stop a function.

Corliss said the City would hold that tool.  If a UPR allowed a soup kitchen, as long as it met those general criteria and many cases the criteria would be established by a governing body and the City Commission would determine whether or not there were extraneous problems.  If the Commission made the determination, after appropriate notice, that those conditions were not being satisfied, the Commission, with the UPR could disallow the soup kitchen use.  With conventional zoning, the City Commission did not have that authority and the property would need to be rezoned to remove that use. 

Commissioner Highberger said in terms of enforcement, if the Commission were to revoke the UPR, they would be in the same situation of either voluntary compliance or court.

Corliss said correct.

Commissioner Schauner said the concern he had with the UPR was how effective it would be.  As they saw with the Lawrence Community Shelter was the discussion on some regular basis would be on some future City Commission meeting agenda.  Since this body would determine if the UPR would be granted an extension for some period of time.  He said whatever the length of the permitted use would be, the Commission would determine whether that UPR should be granted an extension or not, rather than asking a Court to enjoin some use which might otherwise be in violation on conditioned conventional zoning.

Corliss said it was part of Zinn’s illustration. The temporal nature of the UPR had a concern for the property owner and their ability to get financing, whether it was private financing or fundraising. 

Mayor Amyx asked if a conditional zoning would work the same as a UPR.

Corliss said that in some aspects the conditional zoning could work the same as the UPR, but he did not think the Commission had the ability to condition the zoning in such a way that the use that was allowed by that zoning disappeared.  The Commission could condition it so that certain uses were allowed with certain types of criteria.  There could be any number of different requirements, but to condition the zoning that was lawfully granted by the ordinance disappeared, the zoning ordinance should actually be changed

Commissioner Schauner asked if Zinn agreed with the interchange between Corliss and the Commission. 

Zinn said he thought it punctuated the observation that he made about the Salvation Army’s desire to have stability and predictability.  He said he thought that procedure would allow them to do that and at the same time, take the conditions that some had said were not enforceable and make those conditions enforceable.

Commissioner Schauner asked what level of down zoning would be appropriate.  He said he heard Zinn say there was a difference of opinion between what the neighborhood wanted in terms of what the down zone was to be as compared to what the Salvation Army wanted as a downzone. 

Zinn said the RMO zoning designation was a more appropriate because that zoning was more consistent with the existing neighborhood than RO-1 district.  He believed staff also agreed that would be a more appropriate zoning designation.

Commissioner Schauner asked if there was anything in the O-1 zoning that would prohibit the Salvation Army from doing what it had indicated to the Commission that it had an interest in.

Zinn said he needed to look at the list of permitted uses in the O-1 district.

Stogsdill said when they had their discussion they were looking at the purpose statements.  The O-1 district would convert to a CO district and looking at the purpose statement for the CO district versus the purpose statement for the RMO, the RMO purpose statement described much more closely the types of activities the Salvation Army was intending to do on that property.  The O-1 district would create the ability to do a number of commercial uses on that site. 

Commissioner Schauner asked if both of those zoning categories under the new code and was it possible to condition the RMO district under the new code that would get it closer to the O-1 district and still satisfy the purpose statement of a RMO district. 

Stogsdill said O1 district was today’s code which would convert to the CO in the new code.

Commissioner Schauner asked if the RMO district could be customized to fulfill its purpose statement and yet get them back to what was presently called O-1 district and tomorrow, as of July 1, CO district.

Zinn said the Salvation Army was not concerned about ancillary uses.  The Salvation Army was dealing with the existing M-1 and M-1A zoning on this site, which had allowed the Salvation Army to be at the site planning process stage.  Those districts converted into uses that would not even allow a church, the IL and IG zoning categories under the new code’s conversion table.  Therefore, the Salvation Army did not think it was appropriate for the status quo to continue and to be converted into IL and IG zoning districts.  He said whether they rezoned to CO or RMO, it would not make a lot of difference because they were not concerned about the ancillary uses.  They knew, in the future, if they enlarged their use and it changed, the Salvation Army would need to seek a Use Permit Upon Review.  There was no question that the use they were seeking was related only to the Salvation Army Center and the Community Center.   If they changed those centers in the future, then they clearly understood they were subject to the UPR process.  He was not sure if it made a lot of difference to them, but believed that staff thought RMO was more appropriate, but the Salvation Army was willing, after July 1 when the new development code was in place, to mold, blend or create whatever hybrid designation that seemed appropriate.  He said they were not concerned about selling that land to someone who might be able to maximize the value of the property to its most intensive use. Their objective was to use the land for the Salvation Army’s purposes.

Mayor Amyx said if the City Commission felt it was appropriate to rezone that site to a CO zoning district category that that zoning could be conditioned so that in the event the Salvation Army project did not come to fruition, that site could revert back to some other category of residential use.   If they were going to accommodate the Salvation Army on that site and they were doing it for the Salvation Army’s purpose only, he asked if the Commission should rezone that site to a commercial nature.

Zinn said RMO district would be consistent with a broader range of residential and office uses because if it was zoned O-1 which was the Burroughs Creek Corridor Plan recommendation when in fact they would be down zoning and it converted to the CO district than that site would have a broader range of uses than if it was down zoned to an RMO district.

Mayor Amyx said the neighborhood indicated they would like to see the least amount of development in that zoning category.  If the site was zoned O-1 as recommended by the Burroughs Creek Corridor Plan and it converted to a CO zoning district, they would end up with commercial zoning on that site. 

Zinn said it might not, in fact, be as much in the interest of the neighborhood as the RMO district.  He said he could not make that decision that the Salvation Army would be happy if their project did not come to fruition to convert the land to single-family purposes because that was a decision the Territorial Office of the Salvation Army would need to make.  

Commissioner Rundle asked if Zinn could identify any of the conditions apart from whether or not they were attached to a site plan.

Zinn said there were a great many conditions suggested that would eliminate the Salvation Army from being the Salvation Army.  The Salvation Army took several of the neighborhoods recommendations and included those recommendations in their conditions.  Those conditions were the result of input from meetings and input from the neighborhood.  He said the Salvation Army did not just develop those conditions spontaneously.  He said the Salvation Army tried to be responsible, but unfortunately the starting line kept moving on them and it had been very difficult because the procedures changed as to what demands were made.  He said he hoped the City Commission would consider this a reasonable compromise and one that responded to the concern about enforceability.

Judy Bauer, Salvation Army Advisory Board, said she was present to mention the meetings that Zinn had referred to.  The meetings began after the main meeting of 2004 when the Salvation Army received approval of their initial site plan.  They held two meetings that fall and were going to be holding some meetings in January and spring, but at that time the neighborhood decided there was no issue to pursue at that time.  They also had numerous e-mails and the two meetings with the Mayor who mediated.  During those meetings, she thought there had been a good exchange with brain storming those solution focused meetings and the neighborhoods concerns.  Most of those concerns involved safety issues and in generating solutions, most of the Salvation Army ideas centered on the idea of how to address issues of safety.  The list of items attached to site plan grew out of those suggestions. And those suggestions and ideas came from the neighbors at that time.  She thought the dynamics of the neighborhood group had somewhat changed since that time.  During those meetings, she did convey the Salvation Army’s desire to work with neighborhood as the program unfolded to address concerns as they went along.  As a result, the Salvation Army Advisory Board endorsed this concept at their last meeting and furthermore, by approving the creation of the Neighborhood Liaison Social Services Advisory Council which fed into the advisory board to make sure neighborhood concerns were known and understood and that they were able to work together, if in fact this project came to fruition.  She wanted the neighbors and Commissioners to know that the Salvation Army did continue with their desire to work with the neighborhood in the coming years. 

Commissioner Schauner said he understood that this project was going to be a change in emphasis away from the mission of the Salvation Army downtown to be into a more family oriented approach and asked if that was still the case.

Bauer said she understood this facility was set up to serve families.  They were very interested in people who were interested in helping themselves.  In the construction, the Salvation Army allocated space for families and was currently changing their emphasis.

Vice Mayor Hack said the current site was not setup for families. 

Bauer said at their present site, they were not setup for families.  She said that facility was built as a result of City’s needs in the 1970’s or early1980’s.  It was never constructed for families and the facility was woefully inadequate.

James Grauerholtz, Brook Creek Neighborhood Association, Burroughs Creek Corridor Plan Committee, said this issue was not a win/lose situation.  He said one observation was that if there were differences with location, programs, and operations, it would be a cake walk to keep extending the UPR.  If the use fit well, then everyone would not be opposing the use of that site.  He said he believed it was 1986 when Salvation Army was asked to open up as a shelter at 10^th and New Hampshire and about 10 years ago the Salvation Army began looking at expansion plans in which they ruled out a rebuild or new facility at their current location.  He said the lot that was volunteered by Mr. Polk, for the safe house, north of the Salvation Army facility was combined in 1999 with their property into one lot.  He said there had been quite a bit of feedback with tentative choices on East 11^th Street, the north part of Brook Creek Park, which was proposed and had a lot of opposition.  Then, they proposed The Woods at 15^th and Haskell, which was built as the Hanscom/Tappen Addition, PRD residential housing nicer than some other that had been built in the Brook Creek neighborhood in the last 10 or 20 years and there was opposition to that site.  He said that might be a context on how the SA dealt with neighborhood relations when announcing this site.

He said as a footnote, at the two committee reconciliation meetings that Mayor Amyx chaired, it was confirmed by Zinn that it was not the consensus of today’s Salvation Army leadership that they had always had the most diplomatic and effective way of building bridges with the environment in the past.  He said prison parolees might not be such a bad use, but if you could imagine how people felt when they open a newspaper and there was that shocker of housing parolees right after they had those three meetings. 

The Salvation Army had gone to great lengths, as of now, to offer some reassurances.   Zinn made a valid point, that having a special use permit hanging over a piece of real estate did create uncertainty, especially if the SA was still trying to raise those funds. 

He said concerning rezoning, he asked why did the Burroughs Creek Corridor Plan Committee recommend that zoning?  As a land use question, they knew it was the intention of the people of the Salvation Army to raise the money to build that facility, but the committee did not know if raising that amount of money would happen so rezoning was recommended.  He said that type of zoning was recommended as a way to cover the possibilities that they might not succeed. 

Another question was what did the Salvation Army do to reassert the neighborhoods?  He said eventually the SA did quite a bit to reassert the neighbors, especially in the last few months.  He said it took a lot of serious arguing to get it to that point because those promises were not given.  Also, the Commission unanimously agreed to limit the site plan. 

He asked about the Salvation Army needing two more years.  The SA was very candid in that they had not raised all of their money and needed time to try and raise the rest of the money in which he understood because by published accounts, the SA had raised 1.2 million and upped their estimate from $3.5 million to $4 million.

He asked about why the Salvation Army opposed the Special Use Permit.  He said at one of the reconciliation meeting, it created an air of uncertainty about the project which hurts fundraising. 

He asked about why was fundraising left and Zinn commented that it was because there would be controversy over the headlines and people did not want to donate to a project that was controversial and opposed.  He said there was opposition because the extension extended for two years from a special use permit review procedure. 

Finally, he asked the reason why the east side preferred a special use permit procedure.  He said the reason why the east side preferred a UPR was because it was more enforceable.  They just had an illuminating discussion about the differences between conditions placed on the rezoning they proposed to accept, RMO, versus the UPR. 

He said if Salvation Army failed, then the neighborhood did not want a factory.  The other side was that how could the neighborhood imagine that the SA would fail.  The zoning violation would be fined between $10-500 per day and up to 6 months in jail, which would be hard to put a corporation in jail.  He said this was a great debate and had taken a little bit of sand in the oyster to get this pearl.  He said they should not look back, but forward.  If they succeed in their fundraising, and build their facility, then he and others would work with the SA.  If the SA did not succeed, he and others did not want to be seen as the Grinch who appealed the Salvation Army’s efforts of all those good people who volunteer to help the needy, poor, and homeless.

Larry McElwain, Salvation Army, said they had been through some disappointments in the past with locations such as 15^th and Haskell Avenue.  He said the SA thought the current proposed location was in a cluster with Social Rehabilitation Services up the street, Health Care Access, and Independence Inc., all in the vicinity.  Those agencies that could help the SA and their clients were already there. 

As Bauer indicated there had been many meetings that had occurred for the exchange of ideas and Zinn had pointed out the SA was trying to be accountable through the zoning agreement they had through the City.  They intended to keep their word and he thought the SA was a good neighbor now.  He did not think there had been many complaints of the Salvation Army.  The SA had a lot of challenges, but they had worked their way through those challenges. He said he thought they would be a good neighbor to this neighborhood if they were allowed to be at that location and they did not want to be at odds with their neighbors and did not want them to be unsafe.  The SA had been accountable in this community for many years.  In the 1980’s there was a need and there was not another organization to step up and they stepped up and met that need over the years.  Now the Lawrence Community Shelter had stepped up to meet another need and were working through their problems just like the SA had to work through their challenges and problems also. He asked City Commission to approve staff’s recommendation allow the SA the opportunity to serve in that neighborhood and to be a good neighbor.

Dahlberg said the SA had operated this shelter as they were asked to do by the leaders of this community.  They did not operate the shelter because it was good of the Salvation Army, but because there was a genuine need in this community.  He said the SA met that need of the community, at their own financial peril.  The organization provided great services without receiving great enough resources from the community.  He said the Salvation Army struggled to provide services to the homeless and meet the needs of those that came to them.

The SA had a building that deteriorated around them because the facility was never designed to do what was asked of the SA.  He said the added wear and tear had taken its toll. The SA had seen other valuable programs go by the way to keep providing those types of services to this community. 

They had raised $1.5 million thus far and would operate a rehabilitative program for the needy in the community based on the resources available.  The Salvation Army would not go on indefinitely warehousing people on the floor.  He said the community should be embarrassed that they were warehousing people on the floor and enabling them to continue in their homeless state without hope of ever getting help.  The SA must assist those people in getting out of homelessness. 

He said the City Commission were representatives of the citizens of Lawrence, not just those of wealth and influence, but those without a voice or much of a voice such as the elderly, children, homeless, and helpless.  The Salvation Army desired to enhance and do the most good for every neighborhood in Lawrence.  He said sometimes it was hard to do what was not popular, but sometimes it was more important to do what was right rather than what was popular.

Craig Comstock, Vice President of Brookcreek Neighborhood Association, said his main concern was would the Salvation Army be accountable for their behavior and whatever mechanism they could come up with to make that happen he would support.

He had a couple of questions about the proposal of conditions on a new zoning.  If there was not a concern about the CO or RMO zoning, why did they need to wait until after July 1^st and if a site plan was approved, what conditions could be placed on the RMO after July 1^st.   

Mayor Amyx said if the City Commission initiated rezoning at this point and consider the idea of conditional zoning, he asked if they would need to send those conditions with that initiation.

Stogsdill said staff’s memo suggested that if the City Commission was comfortable with conditions that the Salvation Army had suggested, the Commission could approve the site plan with those conditions and initiate the rezoning with the intent that those conditions would be attached to the rezoning when it eventually went through the process.  If the Commission felt they wanted to change a condition on the site plan, tonight would be the opportunity to do that change and whatever was approved on the site plan would be what staff would recommend be attached to the rezoning, assuming that would be a consistent action.

Commissioner Schauner asked what the urgency of approving the site plan was at this time.  He asked what the harm was to the Salvation Army if they were without a site plan on that property until after July 1^st.   

Stogsdill said she understood that until a site plan was approved, the SA could not proceed with fundraising and any progress toward that project.  She said whether it was tonight or a month from tonight, Zinn would need to respond if there was something different.

Commissioner Schauner said he was asking about the land use effect on the applicant if the Commission did not approve the site plan and wait until the first City Commission meeting after July 1^st to approve this site plan or a successor.   He asked what the legal disadvantage to the applicant was.

Stogsdill said she was not sure there was a legal disadvantage.  She said staff understood that they would process any site plans that had been submitted based on the existing code.  Anything submitted prior to July 1 had that option to proceed under the existing code.  The City Commission could be approving a number of site plans under the existing code for several months.

Commissioner Schauner asked about the advantage to the applicant by having this particular site plan approved now.  He asked what the applicant would get from the current code with this site plan that the applicant could not get under the new code, under a site plan adopted after July 1^st. 

Stogsdill said if the City Commission approved a site plan on July 2^nd and it was still based on the existing code, there was not a requirement for the UPR.  

Mayor Amyx said if the Commission did not feel there was any urgency with the site plan, the Commission had to make sure any conditions should be placed on the zoning at this time.

Commissioner Schauner said the real key to neighborhood issues was whether it was on the site plan as an enforceable vehicle, which he was not certain that was really possible to do, or if it was a conditioned conventional zoning that the devil would be in the details in terms of what specific conditions were attached to either the UPR or the conventional zoning.  He said the City Commission was not in the position to know those clearly articulate conditions should be.  He said the Commission had an application for a new site plan under the current code.  He said he was trying to understand what the applicant gained by operating under the current code as opposed to the new code.

Moved by Hack, seconded by Rundle, to extend the meeting until 10:30. Motion carried unanimously.

Commissioner Rundle said concerning the site plan under the current code, he asked if that was being drawn from the transitional provisions.

Stogsdill said she respectfully disagreed with Klingenberg’s interpretation because it had been discussed for more than five years that people in the pipeline had the ability to choose.  If a person wanted to proceed under the old code, they could do that or they could choose to submit in anticipation of the new code.  In looking at the definition of development activity, it discussed the change of use.  A site was a proposed change of use.  Clearly, staff had been talking to property owners, developers, and neighbors that if they had a project that was submitted, they had a one year approval time period in which to submit their building permit application.  At that time, the process had begun with the Planning office and it was a continuum.  She said having the site plan submitted staff believed the transitional section would give the property owner the ability to move through the development process based on that site plan. 

In response to Commissioner Schauner, if staff waited until after any rezoning was approved and published, they would be waiting multiple months.  If the Commission initiated the rezoning, a public hearing would be held at the July Planning Commission meeting and that recommendation would come back to the City Commission mid August.  The City Commission would take action and ordinances would be drafted, so it would likely be September before that rezoning would actually be published.  If there was concern about attaching conditions to the rezoning so that they were reflected of whatever site plan they wanted to approve, it would be multiple months they would be asking the applicant to wait.  She said it was not the question of putting off the fundraising stability issue for three weeks,

Vice Mayor Hack said it was not the fundraising stability issue for three weeks essentially, it would be three to four months.

Stogsdill said the City Commission would want to make sure they had all the conditions in the zoning ordinance and the City Commission would need to wait until the zoning action was completed.

Commissioner Schauner asked if a site plan could be conditioned in such a way that it became an enforceable document between the applicant and the City.

Stogsdill said staff indicated they thought it was acceptable with the second movement to rezoning and including those conditions in the zoning ordinance.

Commissioner Schauner said the movement to conditional conventional zoning would also take 3 to 4 months so how would conditioning site plan now with a transference of those conditions to conventional zoning after July 1^st, shorten that 3 or 4 month time period.  He asked how it provided the applicant with any sooner ability to raise with certainty.  The applicant was still going to have a process to go through in terms of conditioning the final conventional zoning.

Stogsdill said that was correct, but she thought Zinn could respond to that question.

Vice Mayor Hack said perhaps it was the idea the site plan had been approved, knowing that it was going to go through the transference to the conditional zoning.  The process was going to involve more time, but at least up front they knew zoning had been done.  She asked Commissioner Schauner if he had specific concerns about approving the site plan and were their conditions that he was not happy with or were there issues that should be included that were not.

Commissioner Schauner said what he kept coming back to was his lack of certainty around what the Salvation Army proposed.  He could not determine what it was the Salvation Army agreed not to do.  He asked how he could, in making that vote, protect the interest of the neighborhood in the way that gave the neighborhood reasonable assurance about what would be their neighbor.  He said if the City Commission could approve the site plan the Salvation Army could begin fundraising right away.  He said that if they did not approve it, they would have to wait 3 weeks, which he thought would not make much of a difference since they have been working at this for five years.

Mayor Amyx said the site plan was in conformance based on staff recommendation.  The concerns come in on whether or not they were going to condition a zoning or they were going to require a use permit under the new code.  He asked if they could create a zoning that would protect the neighborhood and make it function as UPR. 

Commissioner Schauner said he was not willing to accept the site plan conditions were sufficient protection of that interest.  He did not like the UPR because the Commission sat through over an hour of UPR’s and the last thing the Commission needed was that to come back every five years. He said he would like good conditioned conventional zoning that would have the right restrictions on it.  He thought it was in the Salvation Army’s long term best interest, the City Commission’s long term best interest, and in the neighbors’ long term best interest.  

Mayor Amyx said they were looking at conventional zoning that would be conditioned to allow the current site plan, over time, to be approved.

Commissioner Highberger said what mechanism they had for requiring a UPR given there was a site plan submitted and staff’s interpretation.   He said if the Commission denied the site plan, he asked about the restrictions of resubmitting the site plan.  

Corliss said when denying a site plan, the site plan requirements would need to be looked at.  He said in staff’s view of site plan requirements was that this property complied with the code requirements for a site plan.  Staff was going to need Commission directions to where the site plan that had been submitted failed to comply with the code.  The Planning staff in their staff report indicated it complied with the site plan requirements. 

Mayor Amyx said the site plan was not in question.  It was the conditions of the zoning.

Corliss said it was about the use.  He said they traditionally had limited uses through zoning. 

Commissioner Schauner said if they down zoned the property in a way that would make the proposed site plan uses off the permitted use list, then they could deny the site plan.  After July 1^st, they could rezone it to RMO.

Mayor Amyx asked how they would put together an initiation of conditional zoning for this piece of property so they had something to discuss that took into consideration the current site plan. 

Corliss said the starting point would be the initiation of the rezoning to the Planning Commission in July.  He said because it would be initiated under the new development code as a conventional zoning, that would be part of the Planning Commission’s deliberations and the City Commission’s decision as to what conditions would be placed on that zoning.  He said it sounded like there was favorable support to initiating zoning to the Planning Commission in July.

He said in staff’s memorandum, it indicated to go ahead and when the site plan met the site plan requirements of the code, they struggled with the conditions in the site plan.  They had conditioned a number of site plans on a number of different items looking at the criteria in the site plan.  In this case, they have a property owner willing to limit the site plan with certain conditions which would also be reflected in the zoning ordinance.  He said he thought it was doubtful the applicant would be pulling a building permit before the zoning ordinance.  He said the applicant might be willing to have that as an additional condition that there would be no building permit pulled until the zoning ordinances were out.      

Commissioner Schauner said the City Commission could defer the site plan,

Corliss said the City Commission could defer the site plan, but it needed to be in a reasonable time period because the SA had an argument that they complied with the site plan code requirements.

Commissioner Schauner said the City Commission could defer the site plan for a reasonable period of time.

Corliss said yes.

Commissioner Schauner said the site plan could be deferred until they could condition the zoning.

Mayor Amyx said they could approve the site plan conditioned upon zoning.     

Vice Mayor Hack said they could approve the site plan conditionally based on the zoning to which conditions would be added as reflected in the conditions that were presented. 

Commissioner Schauner said what did the applicant think they would achieve by operating under a site plan approved under the current zoning code as opposed to the one approved under the next development code.

Mayor Amyx said if the City Commission initiated the rezoning, depending on the conditions that were placed on that rezoning, it would have an affect on that site plan.

Corliss said that could happen, but he thought the conditions set out by the Salvation Army and the neighborhood would not change the physical structures on the site plan, they speak to its use and occupancy.  He said it was the use that was the focus of both the neighborhood and Salvation Army conditions.  He said those conditions were appropriately placed in the zoning.  He said that was what a special use permit was, a special animal of zoning.

Zinn said under the existing zoning ordinance, because this was an industrial zoning district, the ordinance specifically provided that a special use permit was not required whether it provided that a special use permit was not required or it provided that the criteria for the special use permit should not be applied, but he was not sure there was any practical difference.  He said Salvation Army believed the existing zoning ordinance for the zoning district for this particular use would not require a UPR.  He said under the new development code there was no such thing as M1A or M1 zoning.  The conversion would put the SA inn an IL or IG zoning district, and even the church would not be permitted.  Using the existing zoning ordinance was in their interest.  The development code intercepted the process at an awkward time and they had been struggling to try to deal with the new development code and a new set of rules to follow.  The provisions, whether it was grandmothered or grandfathered, however one describes that process, as the new development code made available to development activities that had been started and the applicant elected to have determined under the old zoning ordinance. The special use permit process gave rise to a great deal of uncertainty, which was why they preferred to have the zoning conditioned than having to deal with a special use permit.

Commissioner Schauner said if the property was rezoned after to July 1^st to RMO, he asked if the Salvation Army’s uses be permitted without a special use permit.

Zinn said the uses would be permitted if the site plan was approved because a site plan carried through the existing zoning.  As he understood the rules, they would be able to have the uses allowed under M-1 and M-1A, but they were limited by the site plan.  In other words if someone wanted a factory in the M-1 or M-1A zoning district, that could not be done because the site plan limited it to this particular site and nothing else.     

Commissioner Schauner asked what zoning category would be available to the Salvation Army after July 1^st that would not require a special use permit, but that could be conditionally approved. 

Stogsdill said none.

Corliss asked Zinn if the SA would agree to a condition on the site plan that the SA would not pull a building permit until the City had rezoned the property with a no later date of October 1^st.

Zinn said he did not see any reason why the Oct 1^st date would not be acceptable. 

Corliss asked if the SA would agree to a condition on the site plan that the SA would not pull a building permit, prior to October 1^st, or the effective date of a new rezoning ordinance with conditions.

Zinn said if October 1^st was the latest date, he said yes.

Corliss said whatever occurred first which was the new zoning ordinance or the October 1^st date.  He said staff would then incorporate those use conditions that would be placed in a zoning ordinance.  

Zinn said the Salvation Army submitted those conditions based on meetings with the neighborhood.  He said the SA was not interested although perhaps not totally disinclined to go through that condition process again, yet he did not want to simply invite starting over again with the conditions.  They had been at this issue a long time and knew the neighbors were proceeding to do what was in their best interest and the Salvation Army was trying to blend in the interest of the neighbors with the community’s general interest.  If they started over, the process would take a long time.  He was not looking into adding more conditions.  He said those conditions went through a process and were approved by headquarters.  Any conditions that were attached to zoning must be approved by division headquarters.

Commissioner Highberger said he was not sure that was true.  Any conditions that were attached to the zoning were conditions attached to the zoning. 

Zinn said that was correct, acceptable to the applicant.  He said the Commission had the authority to impose conditions, but the conditions had to be approved through their divisional headquarters. 

Commissioner Highberger said he did not want to start the process over again.  He wanted to be clear that if they went through this process and conditions on the zoning were changed from the conditions on the site plan, he understood that zoning conditions would be what would prevail.

Corliss said correct.  He said they would have rezoned the property prior to substantial construction on the property and those zoning conditions would prevail.  

Mayor Amyx asked where that left the site plan.

Corliss said the site plan would still be valid for a year based on the fact that it was approved.  Those conditions would still be there, but they would essentially have the most onerous conditions that would be governed on the use.

Commissioner Schauner asked if the conditions on the zoning could trump the site plan.

Commissioner Highberger said given the fact that they were not sure they could enforce the site plan and conditions.

Corliss said use conditions on a site plan were problematic.  He said if the Commission wanted to enforce those conditions, he would make the best argument he could.  He said there might be examples where they had done it elsewhere, but he did not think it was wise to limit uses in a site plan.

Zinn said he looked at this issue recently to the Kansas Supreme Court decisions or Kansas Court of Appeals decisions on this point and there were not any.  The Kansas Supreme Court in the Rodrock case within the last two years reiterated its position that conditions imposed on a plat were enforceable.  The leap from a plat to a site plan, he could not say what it was.  On the other hand, they were both means of regulating land use and the Court had said that conditions on a plat were enforceable.

Commissioner Schauner said the difference was that a plat would be filed with the county and a site plan would not be filed with the County.

Zinn said they did place conditions on site plans.  He said there was a public notice of a plan by filing with the county.

Commissioner Rundle said the City Commission should wait and do this project under the new zoning code.  He could not imagine the City Commission or the Planning Commission would jeopardize the center coming into fruition at this location largely under the plan that had been proposed.  He did not think that process of waiting would bring them to that.  He said when looking at this issue as a land use decision, it made him think of when a benefit district was proposed, they discuss the value that was being assessed went with the land and not the particular user at that time.  He thought zoning decisions were the same.  He said the Commission was placing those zoning on that piece of property, but the entire process took into account the impact on neighboring property.  It was reasonable to take the time to come up with some mutually agreeable resolution to this issue and it would probably resolve the controversy, eliminate the headlines, given all those difficulties in fund raising. 

He said this was also an infill project such as the Wood project and the City Commission was committed to making that happen and in a way the neighbors and developer were mutually agreeable to.  He said nothing in the current zoning matches its current uses.  He said for all those reasons they needed to step back and wait until they had their new zoning code and proceed from that point.  He said another issue he heard was consistency.  He said it was a valid request that the scrutiny, oversight, and accountability the Commission had been applying to the Open Shelter should apply to the Salvation Army.  He said there was not anything disparaging about that project and was a land use matter.  He said this project deserved the same careful attention that was given to the Open Shelter. 

Moved by Hack, seconded by Schauner, to extend the meeting until 10:45.  Motion carried unanimously.

Vice Mayor Hack said she was not sure where that left the site plan. The site plan was a continuing document based on the current code.  She said consistency, stability, and predictability was something that both sides were asking for.  She said her preference would be to proceed as Corliss suggested because it would give the Salvation Army project the ability to move forward.

Mayor Amyx asked if there was a suggestion to go into the new development code, where this item came under a special use permit.

Commissioner Rundle said it was not clear that it would be required.

Commissioner Schauner asked if it was possible to have a text amendment to the development code to have a zone.

Mayor Amyx said the Commission needed to deal with this particular rezoning at this time and whether or not they were going to allow a conditional zoning to proceed from this point forward.

Commissioner Schauner said it was not the conditional zoning that bothered him, but the site plan living under the current rules.

Vice Mayor Hack said that particular site plan did not violate the current code.  She had not heard any arguments from staff that it did violate the code.  She did not see any reason why to deny the site plan.  She agreed with staff in that this needed a continuation and the applicant would not pull a building permit until October 1^st and when the zoning took place, they would deal with the conditions.  She said they could not start over by throwing a thousand new conditions in the hat.   She said to go along with what Corliss said would move them forward.  

Commissioner Schauner asked about Corliss’ proposal.

Corliss said the City Commission could defer the site plan for a reasonable period of time and the Commission needed to indicate to staff when the site plan would come back and what information the City Commission needed in the meantime.  If the City Commission was going to deny the site plan, staff needed direction as to the rationale.  He said staff’s memorandum indicated the site plan complied with the requirements.  If the City Commission approved site plan, then Zinn indicated that his client would not seek to pull a building permit until October 1^st, 2006, at which time staff would initiate a rezoning of the property with conditions.  He said they would work with those different conditions that were set out by the neighborhood and Salvation Army and work through the staff process, the Planning Commission deliberation, and the City Commission’s decisions as to what those conditions should be.  Those conditions would be placed in the zoning ordinance and effect that use.  The site plan would be effective for 1 year from the date the City Commission approved the site plan with those conditions as well.

Commissioner Rundle said a deferral would not change the interpretation that it was under the current zoning code.

Corliss said correct.  The new development code indicated that if someone had submitted an application, the application would be considered under the existing rules.  He said in years past as staff was trying to think about how to handle this transition period where they knew that people would buy property or be making plans based on current rules and staff wanted to have some ability to transition into new rules that would change that.  He said SA might not be the best illustration, but Zinn and the SA did their diligence as to what was allowed and what conditions.

Commissioner Rundle said he would prefer to defer the site plan and initiate the rezoning to RMO.

Mayor Amyx said the Commission would defer the site plan and initiate the rezoning, subject to the conditions established through the neighborhood and the applicant.

Corliss said staff’s memorandum indicated recommendation of the site plan and initiating the rezoning.

Commissioner Rundle suggested that the motion would be to defer the site plan, and initiated the rezoning so that it would be on the July Planning Commission agenda.

Corliss said they would initiate rezoning to RMO which was staff’s recommendation.

Commissioner Schauner asked if they would condition the zoning in  any way.

Corliss said the City Commission could condition the zoning to the SA Community Worship and Resource Center.  He said the City Commission could be specific as long as it was reasonable.      

Mayor Amyx said it was zoned to O-1 that converted to CO, all of a sudden they would have create d a commercial zoning district on an expensive piece of property and he did not think that would set well.

Commissioner Highberger said he was not opposed to mixed uses.  He asked if any residential was allowed in CO.

Stogsdill said no.

Commissioner Highberger said he would be satisfied with RMO.

Stogsdill asked the Commission how long they would defer the site plan.

Corliss said they could wait until they had a full City Commission, which was fairly reasonable.  He said if the City Commission could give staff the rationale as to what the City Commission wanted to do.  He asked if the City Commission had work for staff so they could have a focused discussion in four weeks.    

Mayor Amyx said staff could develop the conditions on the site plan and the zoning which was where they were heading.

Corliss said the fact that they were deferring this item until after July 1^st; would not change the fact that SA had submitted their application under the current laws.

Moved by Schauner, seconded by Hack, to extend the meeting for 10 minutes.  Motion carried unanimously.

Moved by Rundle, seconded by Hack, to defer site plan (SP-03-27-06) until July 11^th for the Salvation Army Community Complex, to be located on the west side of Haskell Avenue between Lynn Street and Homewood Street; and initiate the rezoning of Burroughs Creek Corridor Plan first tier recommended for the Salvation Army property from M-2 and M1A Districts to CO; and direct staff to work on the conditions of the site plan.  Motion carried unanimously.