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Members present:
Goans, Hannon, Lane, Carpenter, von Tersch and Emerson
Staff present: Patterson and Miller
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ITEM NO. 1: COMMUNICATIONS
ITEM NO. 2: MINUTES
Several typographical errors were noted.
Motioned by Hannon, seconded by Lane to approve the
Motion
carried 5-0-1, with Carpenter abstaining due to his absence from the May
meeting.
ITEM NO. 3:
B-04-12-06: A request for variances as provided in
Section 20-1709.1 of the Zoning Ordinance of the Code of the City of Lawrence,
Kansas, 2003. The first request is to
reduce the minimum lot area required for RD zoned property from 6,000 square
feet per Section 20-608 of the City Code, to a minimum of 5,000 square
feet. The second request is to reduce
the minimum side yard setback and rear yard setback from 5 feet and 20 feet,
respectively, per Section 20-608 of the City Code, to 3.7 feet and 12.3
feet. The final request is to reduce the
amount of off-street parking spaces required for a boarding house residential
use of an existing structure containing a total of 7 bedrooms. Sections 20-610.5 and 20-1212 of the City
Code define the number of required off-street parking spaces, based upon the
ratio of one and one-half parking spaces per two lawful occupants in the
structure. Based upon this requirement,
the applicant is required to provide a minimum of 6 off-street parking
spaces. They are seeking a variance to
provide no off-street parking spaces on the property. The request is
for property at
STAFF PRESENTATION
Mr. Patterson introduced the item, a request for multiple
variances to allow use of an existing building as a 7 bedroom board house. He noted that the building was originally
constructed as a single-family home, but had historically been used as a
multi-family residence (8 bedroom apartment building). The requested variances included:
Mr. Patterson outlined Staff’s analysis of the requests in
relation to five criteria, specifically noting several points:
·
The
subject property was platted in 1863 and the existing building was constructed
in 1912, both before adoption of the Zoning Code.
·
The
current RD zoning was one of the highest density residential zones in the City.
·
Two
new duplex units have recently been developed to the north of the subject
property.
·
The
building has been used as a multi-family use with no parking for several years.
·
Given
the topography of the lot and the placement of the existing building, it may
not be possible to provide any off-street parking for the property, regardless
of use.
·
The
applicant’s proposal will reduce the number of residents from its current use,
bringing the property closer to compliance than its current state.
·
A building permit has been granted for the
proposal as shown.
·
The
HRC has approved the rehabilitation proposal as shown.
It was verified that the applicant owned the two lots
directly to the north of the subject property, 1136 and 1138
Staff noted the receipt of a letter of opposition from the
Oread Neighborhood Association.
APPLICANT PRESENTATION
Paul Werner, Paul Werner Architects, spoke on behalf of the
applicant. He said that the applicant
had followed correct procedures and the need for a variance was not discovered
until the final inspection. It was at
this time that the City inspector took note of the fact that the structure had
seven bedrooms and suggested that the owner had incorrectly filled out the
building permit application. Mr. Werner
said the applicant had ‘checked single-family’ on the application because this
was how the building was listed when he took possession of the property, even
though it was at that time being used an 8-bedrooom apartment building.
Mr. Werner said that all the variances requested today were
to acknowledge existing conditions, and the existing parking situation would be
improved by the applicant’s proposal. He
verified that there would be no change to the footprint of the building and
there was no intent to change the property’s zoning.
Mr. Werner said denial of the parking variance would
present a hardship because there was no way to provide parking on the site
without demolishing the existing structure.
He added that approval of the proposal would provide a better, safer
building for the benefit of the neighborhood.
There was extended discussion with Mr. Werner about the
previous use of the building as “an 8-bedroom single-family home”. It was discussed that a single-family home
may have an unlimited number of bedrooms, but ceases to be a single-family home
when more than 4 unrelated persons take residence (according to the City’s
adopted definition of “family”).
It was established that the previous use had contained 8
bedrooms, but these units shared bathroom and kitchen facilities.
The Board expressed significant concern that the applicant
had claimed on the building permit application that the structure would be a
single-family residence, “when he knew full well that was not the intended
use.”
The Board tied this concept to the parking variance issue,
saying they needed to ascertain how many parking spaces should be provided
based on the proposed use: either single-family (stated on the building permit)
or a congregate residence (stated by the applicant). Hannon suggested that the point was moot; no
matter how many spaces were required by Code according to use, no spaces could
be provided. It was countered that the
Board would be considering a lesser variance if the parking requirement were
based on a single-family use (2 down to 0 spaces instead of 6 down to 0
spaces).
It was verified with Staff that a variance would still be
needed, even if the building were utilized strictly as a single-family home.
It was noted that the Board had granted a parking variance
for 1136
PUBLIC COMMENT
Candice Davis spoke on behalf of the Oread Neighborhood
Association (ONA). She said the issue seemed to be unnecessarily confused and
suggested that Mr. Werner had “been around long enough to know what was going
on.”
Ms. Davis said the ONA did not support the parking
variance. They feel that too many
developers are allowed to maximize their own profits to the detriment of the
neighborhood by obtaining variances that should be granted only in rare and
special circumstances.
The ONA feels that campus parking is not a viable
option. Local builders and developers
are very aware of the parking situation in this neighborhood and should think
about how to address these problems before buying their land and making plans
for development.
Ms. Davis referenced the other two properties in this block
under the same ownership, saying the development of all three lots would result
in a minimum of 18 tenants with no increase in off-street parking. She also spoke about the ONA’s suggestion when
the parking variance for 1136
Ms. Davis closed by saying the ONA would like to see the
parking variance denied, sending a clear message to the development community
that they must be more responsible. The
neighborhood wanted to put an end to developers coming forward for a variance
when construction was begun or even complete, with a claim that “there’s
nothing we can do.”
James Slough, applicant, asked to address issues raised by
the ONA. He said he did not feel it was
appropriate to bring his other properties into this discussion, since 1136
Mr. Slough was asked to state his intent for 1138
Mr. Slough said Mr. Werner had not been involved in the
project when he (
Mr. Slough said it was confusing that there should be so
much opposition to the proposal, when it had Staff support and would continue
the existing type of use with an improved building and fewer residents.
BOARD DISCUSSION
The Board referenced a copy of the letter sent from the
Assistant Planning Director to Mr. Slough in 2004 that explained the adopted
policy about the definition of “family” and how it related to uses in the RD
district. Staff was asked about the
City’s policy of “grandfathering” in existing uses that did not comply with this
policy. It was suggested that an
additional variance was needed to allow the proposed use.
It was discussed that a site plan would go before the City
Commission that, if approved, would allow the proposed use. The Board suggested they should wait to see
if this approval was granted before they considered how many parking spaces
should be required/provided. Mr.
Patterson explained that the site plan should not go forward to the City
Commission until the parking variance was acted on by the Board of Zoning
Appeals.
There was discussion about the Board’s ability to bring the
applicant’s other properties into consideration with this request. Reference was made to the Code section
allowing a property owner to provide off-site parking if they owned property
within 300 feet of the subject property.
Some members felt that the applicant had been remiss in building a
structure on the once-vacant lot at 1136
Mr. Slough commented that he had not known when he
developed 1136 Mississippi that he would be required to provide parking that did
not currently exist in order to continue the use at 1140 Mississippi.
Hannon stated again that the question of how many spaces
were required according to use was moot for the Board’s review, since no
parking could be provided. The question
of use would be part of the City Commission’s site plan review.
Emerson asked how Staff supported the claim that the
request did not adversely effect the rights of adjacent property owners. Mr. Patterson replied that the parking
situation was not changed (from its current state) by the proposal and was, in
fact, possibly improved since there would be one less bedroom.
Mr. Patterson responded to questioning that the Board is
typically asked to restrict their review to the property specifically included
in the request. This consideration would
expand only in cases where multiple adjacent properties under the same
ownership would share some feature (a laundry facility or a common parking lot for
example). In that case, the applicant
would be required to site plan the adjacent properties as a single development.
There was discussion about statements made by the applicant
in previous reviews (for the 1136
It was verified that the new Code, when adopted, would not
change any regulation relevant to this case.
Goans expressed significant frustration on behalf of the
Board. He said they had been looking at this
area for several months and he personally had difficulty believing that 1138
Carpenter said the Board “can and must” consider the three
lots as a single property, citing the Code regarding off-site parking within
300 feet. Hannon said he did not agree,
that “we had our chance with 1136
Hannon stated that he was prepared to approve all the
variances in accordance with Staff’s recommendation. It was suggested that, in doing so, the Board
would “create a road map on how to circumvent the zoning ordinance.”
Mr. Werner said the applicant was frustrated as well; two
attempts had been made to provide parking for 1136
It was discussed that the property could be used as a
traditional single-family home if the variance were denied. There would still be an unmet parking
requirement, but the need for a variance would not be triggered because that
use would not require a revised site plan.
If the property were destroyed (by fire for example) it would be
permitted to reconstruct the structure in its original state as a legal
non-conforming use.
ACTIONS TAKEN
Motioned by Hannon, seconded by Lane to approve all three
variances in accordance with the Staff recommendation.
Motion failed, 2-4, with Hannon and
Lane voting in favor. Goans, Emerson,
von Tersch and Carpenter voted in opposition.
Motioned by Carpenter, seconded by Emerson to approve the setback
variances for 1140
Motion
carried unanimously, 6-0.
Motioned by Carpenter, seconded by von Tersch to defer the
parking variance for two months and to direct Staff to obtain a legal opinion
on the following questions:
Motion carried unanimously, 6-0.
DISCUSSION ON THE
ACTION
Hannon stated for the record that the Board must not lose
sight of the fact that no parking could be provided for 1140
ITEM NO. 4:
B-03-08-06: A request for a variance as provided in Section 20-1709.1
of the Zoning Ordinance of the Code of the City of Lawrence, Kansas,
2003. The request is from the paving standards set forth in Sections
20-1217 and 20-1443(b) of the City Code. The applicant proposes to use
gravel within the storage area shown on the site plan rather than paving it to
an acceptable paving standard as required by City Code. The request is
for the property located at
STAFF PRESENTATION
Ms. Miller introduced the item, a
request to allow a gravel paving surface for an exterior storage area. She noted that a site plan had been approved
for project and described the industrial character of the surrounding area,
pointing out the only residential use in the vicinity - a small home to the
southeast.
Ms. Miller noted that the
property was located in the floodway fringe, where permeable surfaces were
preferable to impervious surfaces.
However, Staff was unable to find that paving the subject area would
present an unnecessary hardship to the applicant and therefore recommended
denial of the variance.
It was discussed that the storage
facility to the north currently had a gravel surface, but this would have to be
brought up to compliance with current paving standards if significant changes
made a site plan necessary.
Ms. Miller said that, if the
Board chose to approve the variance, they apply a condition for use of dust
retardant measures as outlined in the Staff Report.
It was verified that the request
applied only to a section of the overall property, measuring about 2400 square
feet in area. It was also established
that the railroad right-of-way adjacent to this section was graveled.
APPLICANT PRESENTATION
Greg Polk, applicant, stated that
the area uses had gravel surfaces almost exclusively. He noted that an exact duplicate of the
requested variance was approved in 2004, but had expired while he dealt with
personal medical issues.
PUBLIC COMMENT
No member of the public spoke on
this item.
BOARD DISCUSSION
The Board generally agreed that
it was appropriate to rely on their previous action, since no part of the
request or the situation had changed since the 2004 approval. Emerson warned against repeating actions as a
matter of course. The Board also cited the preference for permeable surfaces in
flood prone areas such as this.
The Board discussed alternate
findings for the hardship criteria that Staff was not able to support in their
own analysis. It was suggested that
denial would unfairly “change directions” from their previous action, when no
part of the request had changed.
ACTION TAKEN
Motioned by Hannon, seconded by
Lane to approve the variance to allow gravel surfacing for a section of 1200 E.
11th Street as presented, with the condition that dust retardant
measures be applied, based on the findings of fact presented in the body of the
Staff Report and the additional finding related to hardship as discussed.
Motion
carried unanimously, 6-0.
ITEM NO. 5: APPEAL OF ADMINISTRATIVE ACTION;
B-05-18-06: Consider an appeal request
filed by Jack Gaumnitz, representing JELL, Inc., the property owner of record,
of a determination issued by Brian Jimenez, Zoning Enforcement Manager in the
Neighborhood Resources Department, City of Lawrence, dated April 21, 2006. The appeal alleges the City has incorrectly
made a determination that a street tree planted on the property does not meet
the minimum size specifications found in Sections 20-1431 and 20-1432.1 of the
Zoning Ordinance of the Code of the City of Lawrence, Kansas, 2003. The subject
property is located at
This item was withdrawn prior to the meeting.
ITEM NO. 6: MISCELLANEOUS
a)
Consider
a request for a 90-day extension of the variances granted for the Delaware
Street Commons residential co-housing project on the east side of the 1200
block of
BOARD DISCUSSION
Goans said he had spoken with Rich
Minder about this project. Mr. Minder
had indicated that they would close on a loan on June 3rd and hoped
to complete the contract signing on June 4th.
ACTION TAKEN
Motioned by von Tersch, seconded by
Carpenter to approve a 90-day extension of the variances granted for the
Delaware Commons project.
Motion carried
unanimously, 6-0.
DISCUSSION ON THE MOTION
It was clarified that, under the
new Code, only one extension would be permitted for an approved variance. However, the original approval would be for a
longer period (12 months). If an
extension was given and allowed to expire, the applicant would have to return
with what would be considered a brand new variance request.
b)
Set
a date for a review session on the new Code
BOARD DISCUSSION
The Board and Staff established a
meeting time to discuss the new Code before it took effect – June 27th
at
c) Receive Text
Amendments proposed for consideration at a later date.
Ms. Miller explained the Board had
been given a number of text amendments to review before they would be asked to
comment. It was expected that several
more amendments would be forthcoming.
d) Public
Comment
Paul Werner apologized for his part in heated discussion
that took place earlier in the evening regarding Item 3. The Board and Mr. Werner agreed that it was
ideal to discuss items professionally and not to take comments from either side
on a personal level.
ADJOURN –
Official minutes are
on file in the Planning Department office.