NOTE: This report is the original report provided for the August Planning Commission meeting and reflects the original findings of fact prepared by staff.
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PLANNING COMMISSION REPORT SUMMARY Regular Agenda - Public Hearing Item
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ITEM NO. 12: RS-2 [RS7] to CN1; .134 ACRES; 917 DELAWARE (SLD)
Z-06-14-06: A request to rezone a tract of land approximately .134 acres from RS-2 [RS7] (Single-Family Residence) to CN1 (Inner Neighborhood Commercial). The property is located at 917 Delaware. Submitted by Korb Maxwell, Polsinelli Law Firm, for Robert & Molly Krause, property owners of record. This item was deferred from the August Planning Commission meeting to provide applicant time to draft proposed restrictions of use. |
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STAFF RECOMMENDATION: Staff recommends denial of the .134 acres from RS-2 [RS7] to CN1 District and forwarding it to the City Commission with a recommendation for denial based on the findings of fact found in the body of the staff report and more specifically that that the proposed request does not conform with the land use recommendations of Horizon 2020, the current zoning is appropriate for a residential use and the majority of the surrounding area is residential in nature. |
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Reason for Request: |
Operation of a limited restaurant business. |
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KEY POINTS · Use operated for several years prior to zoning inspection in 2005. · Location is within residential portion of neighborhood. · Restaurant uses are not permitted as home occupations. · Quality Restaurant in the CN1 district is limited to 3,000 SF of gross floor area. All building on site exceed maximum 3,000 SF to date. · Zoning would constitute spot zoning. · Site planning and variance would be required to operate use for 10’ side yard setback, off-street parking, and screening. · Residence and kitchen do not meet commercial building and fire code standards. · Site is not ADA accessible.
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GOLDEN FACTORS TO CONSIDER
CHARACTER OF THE AREA
CONFORMANCE WITH THE COMPREHENSIVE PLAN
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ASSOCIATED CASES/OTHER ACTION REQUIRED
· Property used in violation as a home restaurant use and required to shut down summer 2005. · Requires Historic Resources Review scheduled for August 17, 2006 as a state law review. · If denied by HRC the applicant may appeal the decision to the City Commission. · If approved for rezoning the property will need to be site planned. Variances may be required to meet development code standards per the Development Code effective 7/1/06.
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PUBLIC COMMENT RECEIVED PRIOR TO PRINTING · Attachment from applicant regarding application.
· East Lawrence Neighborhood Association was contacted by staff to confirm knowledge of request. · Numerous public comments related to traffic resulting from the 8th & Penn project for Connecticut and 11th streets as an existing concern in addition to traffic impacts resulting from new development.
Comments in Opposition: · Phil Collison, 933 Pennsylvania, Lawrence, KS · Mark Kaplan, 1029 Delaware, Lawrence, KS · Dave Evans, 923 Delaware, Lawrence, KS Comments in Favor: · Michael Blumenfeld, 2713 Westdale Cr., Lawrence, KS · Jeanne and Ric Averill, #2 Winona, Lawrence, KS · Don Schmidt, 925 Delaware, by telephone, stated was not opposed to use. · Eric A. Voth M.D., FACP, 901 Garfield, Topeka, KS · Dennis and Annie Tietze, Topeka, KS · Al and Diane Horning, 2015 Palmer Drive, Lawrence, KS · Virginia Monroe, Topeka, KS · Joan & Landis Dibble, 5218 W98th Terrace, Overland Park, KS 66207 · Don Wenger, 714 Main Street, Sabetha, KS · Arnold Feinberg, 1019 Delaware, Lawrence, KS · Diana Dunkley, Studio 3D, 1019 Delaware Street, Lawrence, Ks · Christopher and Marsha Haufler, 3801 Park Place, Lawrence, KS · W. Greg Stueve, MD., 3510 Clinton Pl., Lawrence, KS · Rob and Betsy Weaver, 1589 Alvamar Drive, Lawrence, KS · Harold Houck, Topeka, KS · Bill and Vicki Griffin, 2408 W. 86 Terrace, Leawood, Kansas 66206 Other Attachments: · Article 4 District Use Table. · BZA minutes – variance request was for residential application. No indication was made at time that the structure was intended for commercial use. · Building floor plans. · Summary from HRC review to be provided at the study session. |
GENERAL INFORMATION |
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Current Zoning and Land Use:
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RS7 [Single-Dwelling Residential] District; existing residential use. |
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Surrounding Zoning and Land Use: |
RS7 [Single-Dwelling Residential] District to the west and south; existing residential homes
IG [General Industrial] District to the north and west; existing building and parking lot areas. |
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Site Summary |
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Original Construction Date |
1875 |
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Remodeled/Addition Date |
2002 |
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Garage Addition |
2004 (BZA-07-19-04) |
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Building |
3,416 SF Residence 468 SF (accessory garden room for serving/seating) 36’ x 13’ 1170 SF (total estimated restaurant use) 528 SF (accessory garage structure) 22’ x 24’ |
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Seating |
To be provided by applicant |
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Lot Size |
.134 acres (5850 SF) |
The subject property is developed as an existing residence. Development includes recent building additions and interior remodel that was not reviewed or permitted with regard to commercial building and fire code standards. The restaurant use operated for several years as a violation of home occupation/zoning requirements of the existing residential district.
The review of the request is complicated by the relationship of the specific use proposed a “home based quality restaurant use” versus a conventional zoning district that allows multiple non-residential uses. A copy of Use Table is provided for reference of permitted uses in the existing and proposed district.
I. ZONING AND LAND USES OF SURROUNDING PROPERTIES
The subject property is currently zoned for residential use. Until recently the restaurant use operated and provided off-street parking through a verbal agreement with Allen Press located to the east of the property. The area to the north and east is zoned industrially. The area to the west and south are zoned for residential uses. The property to the north is developed with an enclosed storage building for buses. The residential lots are provided with rear access via an alley that extends between 9th and 10th Streets.
Staff Finding – The subject property is zoned for residential uses that does not allow for the operation of a commercial restaurant. The Home Occupation section of the Development Code specifically does not allow for restaurant uses but does allow catering for off-premise consumption (20-537(5) (ii) (e)). The subject property abuts the industrial area on the north side and across the street to the east. The balance of the area to the west and south is single-family residential.
II. CHARACTER OF THE AREA
The subject property is part of the East Lawrence Neighborhood and is located in the east central portion of the neighborhood. Delaware Street marks the boundary between the industrial and residential portions of the neighborhood. The East Lawrence Neighborhood makeup includes a range of residential, commercial and industrial land uses within the neighborhood boundary.
Delaware Street includes two distinct elevations. The east side (industrial use) is generally at street level. The west side of Delaware Street includes steep terrain that has vehicular access to the rear alley. The residential homes on the west side of Delaware Street sit 10 to 12’ above the street and are accessed with front stairs from the abutting public sidewalk. Accessible needs to the property can only be accommodated from the rear (alley) side of the property which is designed for service access and private rear yard access to abutting residential lots. It is not designed for commercial access to properties.
This topography provides a definable boundary to what is the residential portion of the neighborhood.
Staff Finding – The immediately surrounding area includes industrial uses, parking lots, and single-family homes. The change in grade between the east and west sides of Delaware Street provide a definite edge to the residential part of the neighborhood.
III. SUITABILITY OF SUBJECT PROPERTY FOR THE USES TO WHICH IT HAS BEEN RESTRICTED
The subject property was built and used for residential purposes. The recent building additions and improvements were identified in all applications to the city as residential in nature. The kitchen specifically does not meet building and fire code requirements for commercial use. The proposed use does not appear to be structured as a neighborhood restaurant located in an “Inner Neighborhood Commercial District” that would local residents but is in line with a quality or exclusive restaurant use that attracts a broader range of a regional customer base.
The current zoning allows catering as a home occupation but does not allow for the restaurant use. Home occupation standards include a limit of customers to not exceed 10 per day and hours are limited to 7:00 A.M until 7:00 P.M. additionally, non-residential employees are limited to one.
Staff Finding – The subject property is zoned for residential use. This district allows for limited accessory uses as home occupations. The property was originally developed in 1875 and remodeled in 2004. Denial of the request will not alter the suitability of the property for residential use and activity.
IV. LENGTH OF TIME SUBJECT PROPERTY HAS REMAINED VACANT AS ZONED
The subject property is developed with a 3,416 SF residential home and detached garage building. The property was zoned M-2 (General Industrial) District in 1966 and rezoned residential in the early 1980’s as part of the neighborhood down-zoning following adoption of the East Lawrence Neighborhood Plan. Building permits were issued in 2002 and 2004 for residential addition and detached garage addition. The property has remained residentially zoned since that time.
Staff Finding – The property is not vacant and has been zoned residential since the early 1980’s.
V. EXTENT TO WHICH REMOVAL OF RESTRICTIONS WILL DETRIMENTALLY AFFECT NEARBY PROPERTY
According to public news articles the restaurant use, while in operation, served up to 200 meals per week and included five employees. Parking for the site is available only in the rear from the alley and only limited parking in that area is extremely limited. Stated concerns include traffic, parking, customer access, delivery loading etc. The condition of the alley is marginal and of a gravel surface. This surface is not appropriate for the level of traffic associated with a restaurant use.
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Staff Finding – Approval of the request will expand the allowable uses for the property beyond the intended restaurant use. Approval of the request will establish a precedent that could lead to additional requests within the 900 block of Delaware Street to continue rezoning changes that encroach into the residential fabric of the neighborhood.
VI. RELATIVE GAIN TO THE PUBLIC HEALTH, SAFETY AND WELFARE BY THE DESTRUCTION OF THE VALUE OF THE PETITIONER’S PROPERTY AS COMPARED TO THE HARDSHIP IMPOSED UPON THE INDIVIDUAL LANDOWNERS
Evaluation of this criterion includes weighing the benefits to the public versus the benefit of the owners of the subject property. Benefits are measured based on anticipated impacts of the rezoning request on the public health, safety, and welfare.
The CN1 – Inner Neighborhood Commercial District is intended to accommodate pedestrian-oriented, small-scale retail and service businesses that serve nearby residential areas, typically within a developed neighborhood as described in the Development Code (section 20-207 (a)). The CN1 district allows a variety of uses including detached residential (subject to standards); community facilities; commercial uses including fast order food (no drive-in) quality restaurant (subject to standards); and retail sales and service including personal convenience uses.
The purpose of the request is to legitimize the intended restaurant use within the neighborhood and specifically within the existing home. Approval of the request can potentially allow for a variety of non-residential uses as described in this report. The ability to restrict the zoning to specific uses is provided in the Development Code per section 20-1303(f) (1) and is an authority granted to the City Commission. This provision allows the zoning to be restricted to just the restaurant use. However, there is insufficient evidence to justify the use as “pedestrian oriented” and providing service to “nearby residential areas”.
The East Lawrence Neighborhood includes multiple areas zoned for commercial uses that would accommodate the land use activity. A large area to the north has recently been approved for redevelopment that adds commercial areas to the community inventory that may also be considered as an appropriate location.
Staff Finding –The value resulting from the proposed change is entirely provided to the applicant. Approval of the request is an encroachment of non-residential use in the neighborhood and therefore detrimental to maintenance of residential portions of the neighborhood.
VII. CONFORMANCE WITH THE COMPREHENSIVE PLAN
Horizon 2020 states “Lawrence is made up of many distinct neighborhoods, each with differing physical characteristics. Much of the community’s overall image and appearance is related to the unique character of its neighborhoods, and these features should be preserved.” This statement is part of the residential chapter related to Goal 3, Neighborhood Conservation. The intent of this section is to establish the protection of character and appearance of existing residential neighborhoods. This section addresses concerns about enforcement and property maintenance that are also detailed in the East Lawrence Neighborhood Plan. The approval of the request could precipitate additional rezoing requests along Delaware Street further encroaching into the residential portion of the neighborhood to the south and to the west.
The following residential policies are provided as justification for retaining the current zoning:
Low-Density Residential Land Use Policies
Policy 3.2 Protect Existing Housing Stock
Policy 3.5 Minimize Encroachment of Nonresidential Uses
Horizon 2020 addresses the location of new neighborhood commercial centers as nodal and occurring on only one corner of arterial/collector or arterial/arterial street intersections. The subject property does not meet this location criterion. Commercial nodes are not recommend for all quadrants of an intersection nor are they recommended to extend into the surrounding lower-density residential portions of a neighborhood.
Commercial uses shall be buffered. The subject property is not adequately sized to provide buffering. The lot is essentially developed with the house, exterior patio, garden structure, and garage structure. Buffering would occur on adjacent private side yards and the public alley on the rear. If approved, variances from the Development Code standards will be required to address buffer yards as well as off-street parking requirements.
“A neighborhood Commercial Center provides for the sale of goods and services at the neighborhood level (Page 6-4)”. Horizon 2020 also states that in order to facilitate such development nodal plans for future commercial center development shall be prepared. A more specific category of neighborhood commercial development is that of the Inner-neighborhood Commercial Center. This type of commercial development is typically an existing commercial area within an established neighborhood.
There are two identified Inner-neighborhood Commercial Centers identified in Horizon 2020 located in East Lawrence – 1) The Southeast corner of 12th and Connecticut Street and 2) the E. 9th Street corridor Rhode Island to the east. There are several other zoned commercial parcels within the East Lawrence Neighborhood. These commercial areas occur at the immediate intersection of streets with the exception of one parcel along 12th Street.
“New Inner-Neighborhood Commercial Centers shall be allowed in very unique situations, such as when the Commercial Center is part of an overall planned neighborhood development or can be easily integrated into an existing neighborhood. Inner-Neighborhood Commercial Centers are to be an amenity to the adjacent residents and serve only the immediate neighborhood. (Page 6-5)” They are identified to be located on collector or arterial streets and are limited in size and scope of use. The proposed request represents a small area and limited use; the location criteria are not satisfied. There are no new Neighborhood Commercial areas identified in Horizon 2020 for the East Lawrence Neighborhood.
The following commercial policies are provided as justification for retaining the current zoning:
Commercial Land Use Policies
Goal 1 Established Commercial Area Development. Encourage the retention, redevelopment and expansion of established commercial areas of the community.
Policy 2.1 Use Appropriate Transitional Methods
Policy 3.1 Utilize Locational Criteria for Commercial Development
Policy 3.3 Criteria for Inner-Neighborhood Commercial Centers
C. Standards for New Inner-Neighborhood Commercial Centers:
1. Inner-Neighborhood Commercial Centers shall be allowed only in those situations where the center is an integral part of an overall planned neighborhood or if the center can be integrated into an existing neighborhood.
Staff Finding – The proposed request does not comply with the land use recommendations and policies of the Comprehensive Plan for new inner-neighborhood commercial centers.
STAFF REVIEW
The subject property is insufficient in size to accommodate the proposed use, required buffering/screening, setback requirements, and off-street parking. Variance approval would be required to address minimum site plan consideration.
The proposed change is not in conformance with the land use recommendations of Horizon 2020. The request does not follow the pattern of commercial nodes for the neighborhood. The request is an intrusion into the residential portion of the East Lawrence Neighborhood. The use, if approved as a conditional zoning, is not for the primary benefit of the neighborhood at large. Generally, quality restaurant uses need to draw on a larger customer base than can be found in any single neighborhood. Buffering is dependant on the use of abutting yards adjoining properties. The subject property is not large enough to accommodate the required setback based on the built condition of the site. Several variances would be required to address site plan compliance for commercial use of the property.
The residential building addition and the addition of the garden room submitted to Neighborhood Resources for issuance of a building permit make no mention of any commercial or restaurant use. The building and improvements do not comply with commercial building and fire code standards or accessibility standards. Pedestrian access to the site does not comply with accessibility standards and will be difficult to achieve based on the built condition of the site.
A variance was grated in 2004 [B-07-19-04] for the addition of a detached 2-car garage made no reference in the application or public discussion that a commercial business was being run out of this residential structure.
This proposed change is subject
to Historic Resources Commission review. The item has been deferred from the August
HRC meeting and rescheduled for the September HRC agenda.
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Front Elevation of Property
Note: Residential uses occur above sidewalk elevation along west side of street |
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Street View looking north
Note: non-residential uses occur at north end of street. Balance of street is residential.
Sidewalk is intermittent and located along the west side above the street level. |
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Street Elevation and sidewalk view
Note: sidewalk is intermittent along street and does not comply with minimum width requirements. |
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Proposed Parking by lease agreement
Parking area is landscaped and setback from street right-of-way. |
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Rear View of Property |
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