PC Minutes 8/23/06 – DRAFT

ITEM NO. 10:           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 (Single-Family Residence) to CN-1 (Inner Neighborhood Commercial). The property is located at 917 Delaware. Submitted by Korb Maxwell, Polsinelli Law Firm, for Robert & Molly Krause, property owner of record.  This item was deferred from the July Planning Commission meeting due to a notice error.

STAFF PRESENTATION

Ms. Day introduced the item, Rezoning request for 917 Delaware. She listed additional communications that she had received. She outlined the general details of the proposal, noting that:

• 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. The existing buildings on site exceed maximum 3,000 SF to date.
• Zoning would constitute spot zoning.
• Site planning and variances 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.

Staff recommended 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.

APPLICANT PRESENTATION

Korb Maxwell, attorney to Robert & Molly Krause, gave a PowerPoint presentation outlining why the Krause’s feel their property should be rezoned. Maxwell gave facts and history of 917 Delaware and provided reasons why he felt the rezoning would be a positive asset to the community. Maxwell also stated that the Krause’s are willing to work with the neighbors regarding concerns, such as traffic, parking, deliveries, and noise.

Commissioner Lawson asked Maxwell how many guests would be dining at this location and also to give a brief explanation on the suggested stipulated zoning. Maxwell responded by saying that there would be about 20-25 (maximum of 30) guests a week, served over 4-5 nights. Service would be provided as single seating. Maxwell also stated that the zoning will allow them to continue to live in the house as a residential use but the stipulation would be included to use the property for dining as well. Maxwell also pointed out that zoning is for the property, not the owner of the property.

Commissioner Krebs asked staff to comment on stipulated zoning. Maxwell responded that uses would be single family and quality restaurant.

Day responded that stipulated zoning can be done but that it will be difficult to look at a map that is zoned as CN1 and know what the stipulations are.

Day also pointed out that the building and fire codes may need to be addressed prior to such use.

Commissioner Burress inquired what the penalty was for stipulated zoning. Maxwell responded that the Krause’s are one of the first applicants under the new zoning codes and that they would be subject to these penalties.

Commissioner Haase pointed out that if catering is already being done at this location then product delivery shouldn’t be a concern.

Commissioner Eichhorn asked Day if stipulations come before the Planning office often. Day responded that there is a concern about spot zoning.

Commissioner Burress asked if the applicant could operate their business from another address. Maxwell stated that yes, they could technically operate at another location but that it wouldn’t be as profitable due to operational costs for commercial rent.

Commissioner Krebs asked Day to clarify “CN1 Limits.” Day stated that it would require a variance and updating kitchen equipment, as well as fire rated doors being added.

Commissioner Burress requested that Day show him on a map the closest neighbor and if they were opposed or in favor of the rezoning. Day stated that 3 neighbors within a block are opposed and 3 within a block are in favor.

Commissioner Harris asked if the applicant has worked with the neighbors to address issues and concerns. Maxwell stated that they are in the process of working through the neighbors concerns.

The Commission discussed use of conditions, and the surrounding land use, including the 8^th & Pennsylvania project.

Commissioner Burress wanted to know how staff would be affected by using stipulations in residential neighborhoods. Day responded that it would be difficult and that a person from the public would have to call the Planning office to find out what the stipulations of the property were.

Commissioner Haase expressed his opinion by saying that he believes there should be a mix of use within zoning districts to break the mold.

PUBLIC HEARING

Janet Good, East Lawrence Neighborhood Association, expressed concern that the rezoning of one house would set precedence and that every future family will think their circumstance is unique. She stated that the nearest neighbor is eight feet from the garden room that the Krause’s use all year long. She feels that the neighbor would seriously be impacted by this.

Commissioner Harkins asked Good when the nearest neighbor purchased the home. Good responded, early 90’s.

Ed Tato, area resident, stated that he isn’t sure where he stands on this issue. He feels that if the property is rezoned as a restaurant that it will infringe upon the neighbors. He believes that Conditional zoning will protect property owners. He was also worried about the precedent that it is setting and how the property will be used by the next owners. He stated that it should be made clear what “criteria” was used to establish grounds for approval.

Ashley Winters, area resident, expressed her support of the rezoning. She feels that the loss of the Krause’s business would have a negative impact on other local businesses that the Krause’s support.

Bartholew Dean, 925 Delaware, expressed his support of the rezoning.

Scott Tishner, 1100 New Jersey, expressed his support of the rezoning and concern that the East Lawrence Neighborhood Association stated opposition.

Judy Romero, 929 Pennsylvania, stated that alley problems had been resolved and expressed her support of the rezoning.

Rex Brant, 945 Delaware, stated that historically the neighborhood has been mixed uses. The view from the Krause’s front door is an industrial area. He expressed his support of the rezoning.

Commissioner Krebs asked Janet Good to respond. Good stated that the Krause’s attended a meeting unannounced and that the Krause’s didn’t follow up with the neighbor to the South until just recently. The vote at the meeting was unofficial since there were not all the Board members there. Following that meeting the Board took an electronic vote for the record.

Dave Evans, 923 Delaware, expressed that he would like the neighbors to be able to sit down with the applicant and address concerns before the Planning Commission voted. The Commission discussed  that Mr. Evans lived in the Neighborhood before the Krause’s.

Phil Collison, 933 Pennsylvania, agreed with Dave Evans and also has concerns about the rezoning. He is in opposition.

APPLICANT CLOSING COMMENTS

Robert Krause stated that they have lived at this location for 6 years and did not have any intention of opening a restaurant in their home when they moved there.  He would like to comply with the neighborhood and was willing to offer family style seating.

STAFF CLOSING COMMENTS

Day noted that there is plenty of parking off site.

COMMISSION DISCUSSION

Commissioner Lawson expressed his confliction over the rezoning. He believes that this is the type of mixed use that Lawrence needs but feels empathy for the neighbors who expect the neighborhood to remain residential.

Commissioner Erickson stated that this type of mixed use would be good for the community and neighborhood.

Commissioner Jennings also stated that he is torn on this issue. He thinks that it would draw money back into the neighborhood and community as an extension of downtown.

Commissioner Eichhorn said that he was still up in the air about his decision but that the neighbors expectation is that the neighborhood is residential. He also stated that whatever his vote was that he hoped City Commission would approve it.

Commissioner Burress stated that the next door neighbor had a strong claim and he’s not sure he could be satisfied. He suggested that if the use came back with conditions it would be a special use. He noted that it was a predominately non-residential area with good impacts to the community, mixed use neighborhood tradition and a highly unique contribution to the Lawrence culture.

Commissioner Harkins said that if he voted tonight he would vote yes but that he would much rather defer this for another month so that the applicants and neighbors could meet some sort of agreement. He would like to make a good faith effort before the final decision is made.

Commissioner Eichhorn asked staff if conditions could be drafted before this goes to City Commission. Stogsdill responded that if PC recommended approval with only going to CC if these conditions are met that this could be done.

Commissioner Eichhorn stated that he was trying to keep this item off of the deferred list.

Commissioner Harris agreed with Commissioners Burress and Harkins to defer this item to develop good conditions.

Commissioner Krebs stated that she was in favor of moving forward with conditions.

Maxwell said that the applicants would like to work on conditions with neighbors.

ACTION TAKEN

Motion by Commissioner Eichhorn, seconded by Commissioner Burress, to defer Z-06-14-06 to the September Planning Commission meeting.

Motion carried 7-2-1, with Commissioners Erickson and Haase in opposition and Commissioner  Finkeldei abstaining.