PC Minutes 9/25/06-DRAFT

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 (Single-Family Residence) [RS7] 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 August Planning Commission meeting to provide applicant time to draft proposed restrictions of use.

STAFF PRESENTATION

Sandra Day, Staff, gave an introduction and overview of the rezoning request.  She stated the newest information is that the Historic Resources Commission (HRC) has met and denied the request for the proposed zoning request based on HRC criteria.  Ms. Day outlined the current composition of the surrounding neighborhood.   

Comm. Krebs requested additional information regarding the HRC decision.

Lynne Braddock Zollner, Staff, reported the HRC met the Thursday prior to the Planning Commission meeting and voted to deny based on state law review.  She stated that the HRC has a separate set of standards, based on how the rezoning will impact the listed property and environs.  Because this request does not continue the history of the property and there is no mitigation document the HRC made a unanimous decision to deny the request. 

Comm. Harkins noted a comment in a letter from the HRC encouraging the applicant to work with Staff to revise the project to allow it to be approved.  He questioned the intent of the statement. 

Ms. Braddock Zollner replied that the HRC works with applicants to make the request happen, if possible.  The applicant is always encouraged to work with Staff to find a way to meet their goals and it is a standard in the decision making process.  The guidelines for HRC are fairly broad and the Commission does not tend to deny that many applications.  Ms. Braddock Zollner stated that if the applicant had provided mitigation and design guideline documentation it may have swayed the HRC to look at the request in a different manner.

Comm. Krebs cited the list of reasons for denial and asked if mitigation documentation will be necessary if the applicant is interested in appealing to the City Commission.

Ms. Braddock Zollner stated the City Commission uses different criteria than the HRC such as if all the planning been done and if there are prudent and feasible alternatives to the request. 

Comm. Krebs asked if the request could return to the HRC for approval.

Ms. Braddock Zollner said there is no limitation regarding the number of times an application can be submitted for approval to the HRC.

Comm. Eichhorn questioned the how far the environs extended from the subject property.

Ms. Braddock Zollner stated the notification boundary is 500 ft from a state or nationally listed property but the environs review can be expanded for significant cause.

Comm. Burress asked for clarification on the status of recommendations in the HRC deliberations and if the information is relevant to the Planning Commission deliberations. 

Ms. Braddock Zollner replied the information is available to the Planning Commission as it is a project both bodies are reviewing, albeit by separate guidelines and standards.  The HRC information is relevant as it is another advisory body to the City Commission.  If the applicant appeals, the HRC decision moves forward to the City Commission along with the Planning Commission recommendation. 

APPLICANT PRESENTATION

Korb Maxwell, Polsinelli, on behalf of the Krauses stated the applicant took specific guidance and recommendations from the last Planning Commission meeting and went back to work with the neighbor to the south and the East Lawrence Neighborhood Association to come up with stipulations all parties can agree on.  Mr. Krause began immediate discussions with Mr. Dave Evans, who owns 923 Delaware, the most affected property.  Mr. Krause looked at the letter Mr. Evans submitted to the Planning Commission and drafted stipulations specifically addressing his concerns.  Mr. Evans hired counsel, Mr. Schneider, and both attorneys worked on a document addressing concerns and stipulations.  An attempt was made to agree to a set of stipulations acceptable to all parties.  During this process Mr. Evans suggested the Krause’s purchase his home and the Krause’s agreed. Mr. Maxwell said this was not an attempt to get around the stipulations but it was based on Mr. Evans request to come to an agreement to work out any issues between the two parties. 

Mr. Maxwell continued that the Krause’s began working with the East Lawrence Neighborhood Association to address concerns put forth in their communications to the Planning Commission in August.  A set of stipulations was drafted, forwarded to Staff and brought forward to a meeting of the ELNA.  Mr. Maxwell stated that during a general meeting of the ELNA on September 11, 2006 a vote was held and resulted in 23 or 25 to 2 in favor of supporting the Krause rezoning with stipulations.  In general, the set of stipulations in the Staff memorandum in section 3 lays out the stipulations.  The ELNA and the Krause’s now have a set of stipulations that protects the neighborhood and the client that they would be happy to bring forward to the City Commission. 

Mr. Maxwell said his interpretation of what transpired at the Historic Resources Commission is that the applicants would be happy to work with the HRC to move the application forward to the City Commission.  This issue is a financial hardship on the Krause’s and they will continue to work with anyone who has an issue with this application.  Mr. Maxwell stated the HRC is tasked with reviewing whether the application damages, destroys or encroaches on environs.  Many members of the HRC said this request does not damage, destroy or encroach but there are other concerns which are similar to the concerns stated by the Planning Commission. 

Mr. Maxwell said the applicant is asking for this application to move forward and that the mitigation documents are present.  He stated this approval was difficult for the HRC because they generally do not work with this type of request.  The house already exists and the request is to change the existing use to a quality restaurant.  This does not destroy or damage historic environs.  Mr. Maxwell brought up the 8^th and Penn project as an example of a mixed use environment.  He said the applicants will appeal the HRC denial to the City Commission.  The applicants are willing to work with Staff and ask that the Planning Commission consider the guidance given to work with the neighborhoods and ELNA has been completed.  Mr. Maxwell respectfully asked for the Planning Commission to approve the rezoning request with the stipulations suggested by Staff.

Comm. Burress noted the property is out of ADA compliance. 

Mr. Maxwell stated that if the property is rezoned, it will have to have handicapped parking and access.  The applicants have had an architect look at the concerns and they will take ADA compliance as a stipulation.

Comm. Burress asked whether the applicant will provide a mitigation document and a design document subject to HRC approval. 

Mr. Maxwell replied they would be happy to prepare a mitigation document but he views the design document as a site plan that will come after the fact.  Mr. Maxwell stated the applicant will work with the HRC but wants to continue with what the code allows.  They will do everything possible but will protect the right that currently exists to appeal to the City Commission.  He also said the applicant is happy to take stipulations to work in best faith efforts but the fear is that the HRC is looking at issues not based on historic use and the decision on the entire application cannot be based on the HRC denial.

Comm. Harris questioned whether the applicant was aware the mitigation and design documents were required for the HRC meeting.

Mr. Maxwell said there was no discussion regarding the mitigation and design documents as a requirement.    He said when he looked at the law and code he believed the request was a slam dunk.  With a quality restaurant use inside the building and no architectural change to the home in a mixed use neighborhood the denial by the HRC left the applicants astounded.  The mitigation document was the set of stipulations which the applicant has completed for the Planning Commission.  The design document is a site plan which is required after the zoning is approved.  The applicant would like to get rezoned then bring in the site plan. The client is ready to submit the design document.  Mr. Maxwell said the denial is more of a timing issue than an outright denial.

Comm. Erickson asked if the permitted uses wording needs to be changed to allow only a single-family residence and a quality restaurant.

Ms. Day said that was Staff’s intention.  Staff believes the applicant is intending to allow residential use and a quality restaurant.  If the rezoning is approved they would be deliberate about the use and it would be defined as a quality restaurant and detached single-family.

Mr. Maxwell stated that the intent is for a quality restaurant and a single-family home, only uses which are allowed in RS7 and CN1.

Comm. Erickson clarified that a “quality restaurant” is the addition for CN1 zoning.

Mr. Maxwell said that they are willing to clean up the verbiage and that staff understands the intent.

Comm. Harris asked how the applicant intends to use Mr. Evan’s house to the south.

Mr. Maxwell stated it would be used for residential purposes only.  The Krause’s will either fix it up and rent it out or may try to sell the house in the future.  They will ensure that the restaurant use is on record and known in order to limit adverse affect on the neighboring property.  The property to the south will not be used to expand the restaurant. 

Comm. Burress stated the rezoning does not fit within the neighborhood zoning.  The requirements do not seem to fit the neighborhood plan. 

Mr. Maxwell agreed the rezoning is not a perfect fit but they are working with the existing code to figure out the best way to make this work and protect the applicants from adverse effects.  The least impactful way is to rezone to a CN1.  Mr. Maxwell also stated there are portions of the ELNA revitalization plan that support this type of use for artists and artisans and that mixed use is encouraged.  The fundamental point is that the applicant tried to get the most restricted zoning and restricted themselves further. 

Comm. Burress stated a concern that this application could be perceived as spot zoning and violates treating applicants equitably.  The revised set of conditions should be for use, not for the person.  He said the Krause’s run a highly crafted restaurant and have a particular reputation.  This violates treating equals as equals. 

Mr. Maxwell said the applicant has considered this and does not accept that this is spot zoning.  Spot zoning is not a “legal term” but it is a term used when people think the rezoning is unreasonable.  The State looks at Golden factors and Staff’s Golden Analysis is supportable.  The rezoning is reasonable, can be supported by City code, and is not spot zoning.  Mr. Maxwell continued that the request is based on use versus the person and that stipulations must be drawn around use.  It would be unreasonable to say the Krause’s can use this location for a restaurant but no one else would be allowed.  Mr. Maxwell questioned how this can be limited as much as possible so that it is still constitutional but still allows specific use.  He said he has put forward his best attempt within the client’s comfort level. 

Comm. Burress restated his concern about spot zoning for Staff and whether the ELNA plan supports this type of use.

Ms. Day said Staff stood by the findings were in the original Staff Report recommending denial.  She said that alternative findings were prepared based on the discussion of the Planning Commission during the August 2006 meeting.  Ms. Day stated that an argument can be made that culinary skill is an art.  In looking at the locations of commercial use, they are typically located at  intersections within the neighborhood. 

Comm. Burress asked how the Commission can apply this information to make this request about use and not a specific person. 

Ms. Day said that the intentions have to be specific.  Staff narrowed the rezoning down to a specific activity and does not know how much further it can be constrained.  She said Staff is open to listing additional conditions to further refine the rezoning if that is the Commission direction.

Mr. Maxwell stated that the Krauses will only do a one seating dinner service.  The house is beautiful and valuable and economics will determine that if the Krauses leave, a similar operation will be necessary.  He said the Krauses would like to remain in Lawrence and operate their business. 

Comm. Lawson asked Mr. Maxwell that given the fact that the Krauses are very talented and have a strong and loyal following, why can they not go to a part of town that is properly zoned and open their business there.

Mr. Maxwell replied that the Krauses operated a restaurant at 811 New Hampshire that was very successful.  The move to relocate to their home is personal as it is a lifestyle and operation that the applicants prefer.  At 811 New Hampshire they had lease payments and operating expenses.  The economics of it required they be open every night, hire staff and have multiple seatings.  Their purpose at this location is to provide an intimate private dining experience.  The customers are almost always repeat. They have a strong following and it is a family atmosphere.  Mr. Maxwell said this can only happen in their own home and it is a unique concept in dining located in a unique space.  

Comm. Harris asked for Ms. Braddock Zollner’s response to the applicant’s statement that they never received information about mitigation and design documents.

Ms. Braddock Zollner said that the applicants received the Staff Report which included a recommendation for mitigation and design documents as part of the conditions.  She stated that the standards and guidelines and what is recommended was included in the HRC staff report and speaks specifically to mitigation and design guideline documents.  In dealing with state law, the mitigation document is more than a list of conditions and the design guidelines more than a site plan.   The HRC decision was based on the change of use and the overall impact to the neighborhood. 

Comm. Krebs asked if it matters that there will not be significant changes to the house.

Ms. Braddock Zollner said the request is for rezoning and the decision was based on findings of fact and the change of use which does not continue the historical use of the property as residential.  When the Krauses are gone, the house will remain and use stays with the house.  There is larger neighborhood impact to be considered as opposed to site specific impact.  She also stated that design guideline documents speak to material and scale of future changes. 

Comm. Burress asked for a statement from the City attorney regarding the underlying legal theory. 

John Miller, Counsel for the City of Lawrence, stated this issue is covered under two provisions of the Development Code; provision 20.1401 Powers and Duties of the Planning Commission and Subsection f, 20-1303 (1) Planning Commission recommendations to the City Commission.  He said the Planning Commission legally has the ability to review what is being requested and make a decision based on the best approach.  The Planning Commission has the legal authority to decide. 

Ms. Stogsdill said when the Development Code was approved by the Planning Commission and Steve Chinh, who was an attorney hired by the City to review the code was asked the same question, his opinion to the City Commission in subsequent meetings was that the Planning Commission has the authority to recommend conditional zoning.

Comm. Burress stated there is a general concern as to whether further restriction is implied and whether there should be a Special Use Permit.  He said there is very specific language for modifications, not the general language presented within this rezoning request.  

Ms. Stogsdill stated there is more specific language in each of the sections when there is a specific plan presented; the language can be made more specific. 

PUBLIC HEARING

Ronald Schneider, attorney appearing on behalf of Mr. Dave Evans, said his client entered into a contract to sell his home to the Krauses on the condition that the rezoning application is approved.  His client’s preference is that there be no change, that he continue to have a residence next to him.  Mr. Schneider stated his client has worked out the best possible solution given the current situation.  The Krauses had been willing to make multiple mitigations for noise, smoke, and other potential issues arising from the rezoning before his client came forward with the suggestion for the Krauses to purchase his home.  Mr. Evan’s position is that he does not oppose the rezoning and consents to the application.  Mr. Schneider continued that he believes the law allows for conditional zoning but does not address the type of conditions allowed.  The conditions must be reasonable.  He also said the HRC was given a unique item to review that fell outside of their normal frame of reference.  The HRC is usually requested to review physical changes.  Mr. Schneider said he does not disagree with the HRC conclusion.

KT Walsh, secretary of ELNA, said there were two letters submitted by the ELNA and understands there were some questions regarding the conflicting recommendations.  One letter pertained to the board’s vote in August and opposition to rezoning of the Krause property as spot zoning.  The ELNA position is to protect residential zoning whenever possible.  The second letter was written by the general membership as a result of an extremely well attended general meeting.  Ms. Walsh stated the vote was supportive of the Krause application but outlined a set of conditions to protect against encroachment of industrial and commercial development within the neighborhood.  The ELNA agrees with the HRC denial and the City Staff recommendations and would like to note that the business was originally run in flagrant disregard of the current zoning.  Others in the neighborhood are abiding by the law thus it puts the ELNA board in an odd position to state support of the rezoning.  Ms. Walsh said the CN1 zoning needs to be tightened up as it is meant for small business and this use is different than how it was intended.  The ELNA board is opposed to the rezoning, the general membership supports the rezoning with conditions and believes it should be considered as a land use issue. 

Comm. Lawson asked for a clarification of the difference between the two positions held by the ELNA board and the general membership.  He stated he was uncertain where the populace stood on this matter.

Ms. Walsh reiterated that the Board voted to oppose the rezoning and the general membership stated they would support the rezoning with stipulations.  She said the ELNA supports the Planning Commission consideration of the rezoning as a land use issue. 

Comm. Burress asked if the ELNA membership has the authority to tell the Board to be quiet on an issue.

Ms. Walsh said according to by-laws they do not.   She said there are numerous issues to cover at every meeting and they are very intense.  She said perhaps the ELNA could do a better job of educating the populace about the Neighborhood Plan basics.

Comm. Harris questioned whether the September 25, 2006 letter from the Board was meant to clarify the email vote taken earlier.

Ms. Walsh said that was correct.

Shannon Hodges, 808 Connecticut, said she supports the rezoning with conditions.  She said the Krauses are good neighbors and an asset to the community.  Ms. Hodges stated the ELNA held two votes, both of which passed by an overwhelming majority and were in favor of the rezoning.  She said the ELNA board has, at times, inserted language in their communications that was not discussed at meetings. 

Debbie Johanning, 1313 Connecticut, said that the first goal of the ELNA revitalization plan encouraged code enforcement.  She said one of main qualities of the plan is a variety of land uses with interconnectivity and a relation between mixed use is important in defining the physical character of the neighborhood.  She stated the sixth goal of the plan is to protect and strengthen the neighborhood and she feels the Krauses are a welcome addition.  Ms. Johanning commented that this is not a land use plan as much as it is a social action and preservation plan which will strengthen neighborhood businesses. 

Dave Strang, 1235 New York, board member of ELNA, and also attended the general membership meeting for the vote.  Mr. Strang said it was not his impression that the membership was supporting the proposal, rather that if the rezoning was going to be approved, then they would support restrictions imposed on the rezoning.  Mr. Strang stated there are already vacant commercial properties in the neighborhood, one that was a restaurant, that is already zoned for commercial use.  He questioned why the Krauses should not have to go to a commercial rezoning area when other business owners are not that fortunate. 

Kyle Gonterwitz, 735 New York, said the ELNA board has taken it upon themselves to not represent all ELNA residents.  Some of the things said are not authorized by the full group.  He said there is a fine line between a business and an art form.  There are many artists and musicians in the neighborhood.  He said he supports the rezoning request and is happy the Krauses came to an agreement with their neighbors.  

CLOSING COMMENTS

Mr. Maxwell stated this is a land use decision.  The applicant recognizes this is divisive to the neighborhood and has done everything possible to obtain neighborhood support. 

Mr. Maxwell said the house, as a mixed use house, is a good buffer between the industrial use areas and the residential areas of the neighborhood.  There will be no adverse impact.  He continued that if this is a precedent being set, it is a good precedent and a quality effort.

COMMISSION DISCUSSION

Comm. Erickson stated she had heard nothing that changed her mind since the August Planning Commission meeting.  She said the rezoning is good for the neighborhood and the community.  The HRC has different criteria than the Planning Commission and from what is being presented, Staff has good findings of fact.

Comm. Burress said he will support the rezoning with trepidation.  He said this is a distinct artistic use that will add to Lawrence, the impact to the neighborhood are minimal and it moves mixed use in the city.  He said he supports the ability to work where you live and it is not unreasonable.  The Krauses buying the neighboring house addresses the impact on the individual but not the neighborhood.  He suggested handling this type of request through a Special Use Permit rather than rezoning.  Comm. Burress stated it is problematic that the HRC is in opposition to the rezoning request and that the applicant would not do the documentation suggested by the HRC.  He said he would like to add a condition that there will be a design guideline and mitigation plan approved by the HRC. 

ACTION TAKEN

Moved by Comm. Burress to approve rezoning based on alternative findings of fact in staff report with two additional conditions of mitigation and design plan requested by HRC.

Motion died for lack of second.

COMMISSION DISCUSSION

Comm. Lawson said this is a difficult issue due in part to acknowledging the cultural and artistic benefits to the neighborhood but the concern is about spot zoning.  Comm. Lawson stated he is unsure it is fair to give economic advantage to this property owner and not expect to give it to future property owners.  He said he will not be able to support the rezoning as currently drafted. 

Comm. Haase stated he understands the HRC arguments but feels it leads to an absurd conclusion.  The Planning Commission is separate and apart from the HRC and the applicant has a path with the HRC decision to appeal to the City Commission.  He said if the Planning Commission were to strengthen the HRC position by making design guidelines and mitigation documentation as a condition it falls beyond the scope of what the Planning Commission should be doing.   He stated the Krause operation is a benefit to the community and very unique opportunity which should not be overlooked.  Comm. Haase said this type of business should not be turned away and he hoped the Planning Commission can unanimously support the rezoning to encourage the City Commission. 

Comm. Eichhorn expressed agreement with Comm. Haase’s statements and also stated agreement with Comm. Burress’ position that the Planning Commission should find a way to approve this type of use through an SUP.   He said if the rezoning is approved, he feels there should be a tasteful sign stating the operation exists. 

Comm. Harkins asked if there is currently a sign for the Krause restaurant. 

Mr. Maxwell stated there was not.

Comm. Burress stated opposition to the sign. 

ACTION TAKEN

Moved by Comm. Burress and seconded by Comm. Haase to approve rezoning of the .134 acres from RS-2 [RS7] to CN1 District and forwarding it to the City Commission with a recommendation for approval based on the amended findings of fact provided in the Staff communication, subject to conditions contained within the Staff memo dated October 11, 2006 and to rewrite A.:

The rezoning is made contingent upon the observance of the following regulations, stipulations, conditions, and restrictions, to wit:

A.       The property shall be limited to only the following principal, accessory, and special uses from the matrix of uses to the Code:

i. All uses that are allowed in both the RS-7 and CN-1 zoning district  

                   ii.        A Quality Restaurant.

          B.       The operation of a Quality Restaurant shall be limited to:

i.        Service of no more than 4 nights per week;

                   ii.        Service of no more than 30 people per night;

          iii.       Service shall be provided by reservation only;

iv. Service shall be limited to dinner only;

v. Service shall be limited to the garden house and first floor dining room.  No dining service shall be provided on the outdoor patio;

vi. Floor Area shall be restricted to comply with Section 20-534 of the Land Development Code limiting area to not more than 3,000 SF including garden house and the first floor dining room; and

vii. Beverage service shall not be allowed on the outdoor patio or, if allowed, there shall be provided a continuous evergreen buffer along the south property line either permanently installed along the fence or provided in containers along the fence to mitigate noise.

          C.       No exterior signage shall be allowed for the Quality Restaurant.

D.       Use of the Property as a Quality Restaurant shall require a legally binding agreement to be in effect (the “Parking Agreement”) at all times.

i.        A copy of the parking agreement shall be recorded with the Douglas County Register of Deeds Office and shall also be filed with the Planning Office as part of an approved site plan.

E.       The Quality Restaurant shall comply with all regulations of Federal, State and Local law, including, but not limited to, the Land Development Code, the American with Disabilities Act, and Commercial Building Code.

F.       Use of the Property as a Quality Restaurant shall require evidence of property and liability insurance at all times.

G.       Delivery service shall be made from Delaware Street.

H.       Prior to operation as a Quality Restaurant, improvements to the property shall be made to limit the impact of any noise from customers to neighboring properties.  These improvements may include:

i.       construction of a more extensive solid fence along the southern property line; or

ii.        construction of a water feature, waterfall and additional landscaping;

          iii.       construction of an additional enclosed structure for the patio area.

I. Prior to operation as a Quality Restaurant the site shall be subject to site plan review and approval and obtain any related variances to such.

COMMISSION DISCUSSION

Comm. Harris asked for clarification of uses to be allowed for RS7 & CN1 zoning. 

Ms. Stogsdill replied only the common uses will be allowed. 

Comm. Harris asked for reworking of the verbiage to make the intent clearer.

Ms. Stogsdill suggested “all uses that are common to both RS7 and CN1 districts and a quality restaurant.”

Comm. Krebs asked if there were any objections to making the change as a friendly amendment. 

There were no objections.

Comm. Harris asked the procedure for initiating a special use application rather than a rezoning.

Ms. Stogsdill stated it would be handled with a text amendment that would look at adding uses to the list of special uses and there would have to be a unique use that would be permitted.

Comm. Jennings said he is torn on this issue.  He is inclined to support the rezoning as he believes the unique concept will not be competitive with other restaurants in town.  He also stated other business owners have overhead to pay and does not see why an exception is being made for these specific owners.  Comm. Jennings said that the restaurant will be a help to the neighborhood and can see the upside to having it there;

that it’s not possible to be competitive unless they could stay home and cook.

ACTION TAKEN

Motion in the floor was to approve rezoning of the .134 acres from RS-2 [RS7] to CN1 District and forwarding it to the City Commission with a recommendation for approval based on the alternate findings of fact and subject to conditions contained within the Staff memo dated October 11, 2006 and to rewrite  condition A.

Motion carried 7-2-1, with Commrs. Lawson and Harris in opposition and Comm. Finkeldei abstaining.