PLANNING COMMISSION MEETING

Meeting minutes

September 2006

_____________________________________________________________

September 25, 2006 – 7:00 p.m.

Commissioners present: Burress, Erickson, Finkeldei, Haase, Harkins, Harris, Jennings, Krebs and Lawson

Staff present: Stogsdill, Ahrens, M. Miller, Patterson, Pool, Rexwinkle, Warner and Kemerling

_____________________________________________________________

PLANNING COMMISSION MINUTES

Receive and amend or approve the minutes from the Planning Commission meeting of August 21, 23 and 30, 2006 

Ms. Stogsdill indicated the minutes for the three August meetings were not yet ready for approval.

COMMITTEE MEETINGS

T2030: Commissioner Haase reported that the minutes for the last meeting will be distributed to the Planning Commission once they are complete. 

PCCM: Conditional zoning as well as long term land use as they pertain to T2030 were discussed at the 9/13/2006 Planning Commission mid-month meeting.

COMMUNICATIONS

Ms. Stogsdill outlined the following communications:

ITEM 1:  Final Plat for Four Seasons Addition

• Memo from Staff with revised conditions

ITEM 6:  Conditional Use Permit for Verizon Wireless

• Letter from Sandra Merrifield, property owner, citing concerns

ITEM 9:  Revisions to Chapter 20, Development Code

• Memo from Staff explaining attached table
• Table citing revisions and proposed changes to IBP District

ITEM 10:  Revisions to Chapter 20, Development Code

• Letter from the League of Women Voters outlining position on revisions

ITEM 12: Rezoning; 917 Delaware

• Draft minutes from the August Planning Commission meeting
• Letter from Mark Kaplan in opposition
• Letters submitted to the August Planning Commission meeting in support
• Page map for 917 Delaware
• Letter from East Lawrence Neighborhood Association outlining conditions
• Letter from East Lawrence Neighborhood Association in opposition
• Letter from League of Women Voters outlining concerns
• Memo from HRC Staff regarding HRC denial of the request

ITEM 14:  Preliminary Development Plan for Mercato

• Memo from Staff with revised conditions
• Letter from League of Women Voters outlining concerns
• Letter from Jane Eldredge, Barber Emerson, outlining suggested modifications

EX PARTE / ABSTENTIONS / DEFERRAL REQUESTS

• Commissioner Burress indicated he received an ex parte email from Mark Kaplan regarding the Krause rezoning which he forwarded to Staff and was distributed in the Communications packet.
• Commissioner Finkeldei will abstain from Item 12, Krause rezoning.
• Item 5 deferred to the Wednesday meeting at the request of the applicant. 
• Item 6 deferred to the October Planning Commission meeting at the request of the applicant. 

PC Minutes 9/25/06

ITEM NO. 1:              FINAL PLAT FOR FOUR SEASONS RETIREMENT COMMUNITY; SW CORNER OF CLINTON PARKWAY & CROSSGATE DRIVE

PF-08-21-06:  Final Plat for Four Seasons Retirement Community, a three lot residential subdivision containing approximately 25.976 acres. The property is located west of the SW corner of Clinton Parkway and Crossgate Drive. Submitted by Landplan Engineering, for Inverness Park Limited Partnership, property owner of record.

ACTION TAKEN

Motioned by Comm. Jennings, seconded by Comm. Haase to recommend approval of the Final Plat for the Four Seasons Retirement Community and forwarding it to the City Commission for acceptance of easements, based on the findings of fact presented in the body of the Staff Report and subject to the following conditions:

1. Provision of the following fees and documentation:

a) A current copy of a paid property tax receipt.

b) Recording fees made payable to the Douglas County Register of Deeds.

c) A completed Master Street Tree Plan in accordance with Section 21-708a.3.

d) A Temporary Utility Agreement.

e) Documentation demonstrating that all special assessments for the subject property have been paid.

2. Pinning of the lots in accordance with Section 21-302.2 of the Subdivision Regulations.

3. Submittal of public improvement plans as appropriate for the construction of water, sanitary sewer, and sidewalk improvements.

4. Revision of the plat to include the following:

a. Notation of existing easements being vacated with this plat.

b. A note, stating that if the utility easements being dedicated with this plat are not sufficient for utilities, additional easements will be dedicated via separate instrument.

c. Notation of Clinton Parkway right-of-way which meets City standards.

Motion carried unanimously, 9-0 as a part of the Consent Agenda.

PC Minutes 9/25/06

ITEM NO. 2A:           FINAL PLAT FOR PRAIRIE WIND ADDITION; 2620 HASKELL AVENUE

PF-08-22-06:  Final Plat for Prairie Wind Addition, a one lot residential subdivision containing approximately 3.04 acres. The property is located at 2620 Haskell Avenue. Submitted by Dean Grob with Grob Engineering Services, for Thervald & Elaine M. Holmes, property owners of record.

ACTION TAKEN

Motioned by Comm. Jennings, seconded by Comm. Haase to approve the Final Plat for the Prairie Wind Addition and forward it to the City Commission for acceptance of easements and rights-of-way, based on the findings of fact presented in the body of the Staff Report and subject to the following conditions:

1. Provision of the following fees and documentation:

a) A current copy of a paid property tax receipt.

b) Recording fees made payable to the Douglas County Register of Deeds.

c) A completed Master Street Tree Plan in accordance with Section 21-708a.3.

d) A Temporary Utility Agreement.

2. Pinning of the lots in accordance with Section 21-302.2 of the Subdivision Regulations.

3. Submittal of public improvement plans for the extension of Ryan Court, sidewalks, and water, sanitary sewer, and stormwater mains.

Motion carried unanimously, 9-0 as a part of the Consent Agenda.

This item was pulled from the Consent Agenda for further discussion.

PC Minutes 9/25/06

ITEM NO. 2B:           FINAL DEVELOPMENT PLAN FOR PRAIRIE WIND ADDITION; 2620 HASKELL AVENUE

FDP-08-05-06:  Final Development Plan for Prairie Wind Addition. The plan proposes the construction of 17 detached dwellings on approximately 3.04 acres. The property is located at 2620 Haskell Avenue. Submitted by Allen Belot, for Thervald & Elaine M. Holmes, property owners of record.

ACTION TAKEN

Allen Belot, appearing for applicant, requested Item 2B be removed from the Consent Agenda and moved to the Regular Agenda. 

Chair Krebs asked for a vote to allow removal of Item 2B from the Consent Agenda and adding it to the Regular Agenda for Public Hearing. 

Vote  8-0-1 in favor of allowing Item 2B to move to the Regular Agenda; Comm. Burress abstained.

STAFF PRESENTATION

Lisa Pool, Planning Staff, gave a brief introduction and overview of the Final Development Plan for Prairie Wind Addition.

APPLICANT PRESENTATION

Allen Belot, for applicant, expressed concern that there was extensive discussion during a City Commission consideration of the preliminary development plan regarding installation of a view reducing fence.  The City Commission did not feel inclined to require a fence around the property.  Mr. Belot stated that Staff added the fence requirement as condition 3b.  Mr. Belot asked that the view reducing fence requirement be excluded from the conditions for approval of the final development plan. 

Mr. Belot requested clarification of condition 2 regarding maintenance of common open space.   He stated this was a new condition based on what was discussed and agreed by the City Commission.  Additionally, Mr. Belot said condition 3d could cause a potential conflict with public works if the condition relates specifically to public improvements and not just driveway dimensions. 

Ms. Pool said the City Commission did not require perimeter fencing, but the applicant had previously stated that he was not averse to providing a view-reducing fence for 2600 Haskell.  The condition for the driveway dimensions are code requirements.  She commented that there is an existing daycare at 2600 Haskell Avenue which prompted the property owner to request the view reducing fence.

Mr. Belot responded that at the City Commission meeting, he stated that the applicant would put up a view-reducing fence if it is a condition of approval, but it was struck from approval completely. At the time of the City Commission meeting, the applicant did not realize a fence already existed along a portion of 2600 Haskell.  Mr. Belot stated he had no objection with going to the property owner and asking if he wanted a fence installed on his property, but he would rather the fence be on the neighbor’s property and not be a structure the homeowner’s association must maintain.   Mr. Belot questioned why it is necessary to file the covenants now and if the subdivision covenants must be filed before the final development plan.

Ms. Stogsdill said the subdivision covenants and the final development plan would be filed at the same time.

Comm. Lawson asked the length of the fence that must be installed along the property line that abuts 2600 Haskell and if the applicant would be willing to build the fence on his property. 

Mr. Belot replied that the fence would be approximately 60-80 feet long and the applicant would prefer it be installed on the neighbor’s property.  He said that it seems strange to separate a residential area from other residential areas.  The portion of the property that is not currently fenced faces a heavily forested area of the development that the property owner would like to retain.

Comm. Lawson asked why the adjoining property owner would like to have the fence.

Mr. Belot said the fear of development prompted the original request.  Additional concerns about pedestrians cutting through yards were also citied.  Mr. Belot noted that the plan includes sidewalk connections to Haskell and E. 26^th, and that pedestrians will not be cutting through yards once the infrastructure is in place. 

Comm. Burress asked if there is a good faith commitment to build a fence.

Mr. Belot replied that he would be willing to do so.

Comm. Harris said the plan shows that the northernmost sidewalk runs along the property line and asked if there will be trees on the other side of the sidewalk, within the boundaries of the development.  She also questioned if there is a concern that passerbys would be able to look into the daycare.   

Mr. Belot said that there are trees, but cannot say if they are between the sidewalk and the property line. 

Comm. Finkeldei asked if condition 2, recording of covenants, is a standard condition. 

Ms. Stogsdill confirmed that the condition is required by code and should have appeared on previous development plans. 

ACTION TAKEN

Moved by Comm. Finkeldei, seconded by Comm. Jennings to approve the Final Development Plan for Prairie Wind Addition, subject to the following conditions (revised to remove 3b) contained within the body of the Staff report.:

1. Provision of the following fees and documentation:

a) A Site Plan Performance Agreement.

b) Recording fees made payable to the Douglas County Register of Deeds.

2. Recordation at the Register of Deeds’ Office of covenants governing maintenance of all common space, with the Book and Page number noted on the plan and a copy of the document provided to the Planning Office.

3. Revision of the Final Development Plan to include the following changes:

a) Revision of the following note to clarify if the intent is to replace trees designated as remaining, or any tree damaged or destroyed: “If tree is damaged or destroyed during construction, then replacement shall be required.”

b) Inclusion of a view-reducing fence abutting 2600 Haskell Avenue. Height, materials, and location of this fencing should be included on the plan.

c) Inclusion of the following note: “The detention area will be privately-owned and maintained. The developer is responsible for establishing ownership and maintenance of same via individual owner maintenance. Structures, fences, and cut/fill operations are prohibited within drainage easements.”

COMMISSION DISCUSSION

Comm. Lawson questioned whether to remove condition 3b, as the applicant is agreeable to providing fencing and why the Commission should consider removal of that condition.

Comm. Finkeldei stated that it depends on how the condition is read; whether the requirement is to put the fence along the entire stretch of 2600 Haskell and on which property.  He agreed that the fence would be a big concern for the homeowner’s association and would entertain alternate language. 

Comm. Haase asked if the public stated concerns with the fencing in a previous Planning Commission meeting.  He recalled multiple neighbors citing concern with the fencing and did not wish to reverse a major concession made at a public meeting.  Comm. Haase questioned if the public spoke at the City Commission meeting.

Mary Miller, Staff, said that during the Planning Commission meeting for the Preliminary Development Plan, the public clearly stated they wanted a perimeter fence primarily because they were unhappy with the development.  Later in the process, the public said they did not want the fence because it separated the neighborhood and they wished to retain the neighborhood as a continuous area.  Only the daycare owner still wants the fence.  No members of the public spoke out about the lack of a fencing requirement during the City Commission meeting for the Preliminary Development Plan. 

Comm. Finkeldei stated that the City Commission discussed the fencing issue and decided not to impose the condition.   

Comm. Lawson said that wooden fences could become unsightly over time and, from a practical standpoint, he has issues with imposing fencing. 

ACTION TAKEN

The motion on the floor was to approve the Final Development Plan for Prairie Wind Addition, subject to the following conditions (revised to remove 3b) contained within the body of the Staff report:

1. Provision of the following fees and documentation:

a) A Site Plan Performance Agreement.

b) Recording fees made payable to the Douglas County Register of Deeds.

2. Recordation at the Register of Deeds’ Office of covenants governing maintenance of all common space, with the Book and Page number noted on the plan and a copy of the document provided to the Planning Office.

3. Revision of the Final Development Plan to include the following changes:

a) Revision of the following note to clarify if the intent is to replace trees designated as remaining, or any tree damaged or destroyed: “If tree is damaged or destroyed during construction, then replacement shall be required.”

b) Inclusion of a view-reducing fence abutting 2600 Haskell Avenue. Height, materials, and location of this fencing should be included on the plan.

c) Inclusion of the following note: “The detention area will be privately-owned and maintained. The developer is responsible for establishing ownership and maintenance of same via individual owner maintenance. Structures, fences, and cut/fill operations are prohibited within drainage easements.”

                     Motion passed unanimously, 9-0.

PC Minutes 9/25/06

ITEM NO. 3A:           PRELIMINARY PLAT FOR LIVENGOOD ESTATES; E 1800 ROAD BETWEEN N 1000 AND N 1100 ROADS

PP-04-07-06:  Preliminary Plat request for Livengood Estates Subdivision, located east of E 1800 Road between N 1000 and N 1100 Roads.  This proposed four lot residential subdivision contains approximately 40.91 acres.  Submitted by Dallas Livengood, applicant, for Victoria & Clifford Pagles, property owners of record. This item was deferred from the June 2006 Planning Commission meeting.

ACTION TAKEN

Motioned by Comm. Jennings, seconded by Comm. Haase to approve the Preliminary Plat of Livengood Estates Subdivision, based on the findings of fact presented in the body of the Staff Report and subject to the following conditions:

1. Revision of the preliminary plat to include the following:

a. Per Section 21-301.2(d) show location of tree masses (wooded area) & provide a general note on the proposed use of the wooded areas.

b. Per Section 21-301.3(g) show building envelopes for the proposed lots. Building envelopes shall go no farther than 150’ into the existing wooded area of the lots.

c. Re-label the shared access notes to conform to the lot numbers.

d. Provide a 10’ Utility Easement along the east side of E 1800 Road right-of-way.

e. Removal of General Note No. 15 referencing a signature on the preliminary plat.

f. Correct the acreage shown for each of the lots.

2. Addition of the following general notes to the preliminary plat:

a. “The owner(s), executor(s), their successors and assigns hereby agree to hook into the public sewer system when the sanitary sewer facilities are within 1,000 feet of this plat.”

b. “The owner(s), executor(s), their successors and assigns hereby agree to annex into the City of Lawrence at the time of municipal utility service provision.”

     Motion carried unanimously, 9-0 as a part of the Consent Agenda.

PC Minutes 9/25/06

ITEM NO. 3B:           FINAL PLAT FOR LIVENGOOD ESTATES; E 1800 ROAD BETWEEN N 1000 AND N 1100 ROADS

PF-08-23-06:  Final Plat request for Livengood Estates Subdivision, located east of E 1800 Road between N 1000 and N 1100 Roads.  This proposed four lot residential subdivision contains approximately 40.91 acres.  Submitted by Dallas Livengood, applicant, for Victoria & Clifford Pagles, property owners of record.

ACTION TAKEN

Motioned by Comm. Jennings, seconded by Comm. Haase to approve the Final Plat of Livengood Estates and forward it to the Board of County Commissioners with a recommendation for acceptance of easements and right-of-way, based on the findings of fact presented in the body of the Staff Report and subject to the following conditions: 

1. Provision of the following fees and recording documentation:
1. Copy of paid property tax receipt;
2. Recording fees made payable to the Douglas County Register of Deeds.
2. Revision of final plat to include the following:
1. Change the Planning Commission Chairperson’s name to Holly Krebs.
2. Re-label the shared access notes to conform to the lot numbers.
3. Provide a 10’ Utility Easement along the east side of E 1800 Road right-of-way.
4. Provide building envelopes which go no farther than 150’ into the existing wooded area of the lots.
5. Correct the acreage shown for each lot.
6.  Revise the owners’ jurat to replace ‘Shawnee County’ with ‘Douglas County’.

3. Addition of the following general notes to the final plat:

a. “The owner(s), executor(s), their successors and assigns hereby agree to hook into the public sewer system when the sanitary sewer facilities are within 1,000 feet of this plat.”

b. “The owner(s), executor(s), their successors and assigns hereby agree to annex into the City of Lawrence at the time of municipal utility service provision.”

4. The subdivider will need to provide a letter from the Lawrence-Douglas County Health Department that septic systems, as a method of sewage disposal for the subdivision, have been approved.

5. A written Water Supply Agreement will need to be signed and notarized between the Development and the Health Department. This written agreement would need to be recorded with the final plat.

Motion carried unanimously, 9-0 as a part of the Consent Agenda.

PC Minutes 9/25/06

ITEM NO. 4:              FINAL PLAT FOR GLENWOOD ADDITION; LOCATED WEST OF WAKARUSA DRIVE AND EAST OF EISENHOWER DRIVE

PF-08-31-05:  Approval of revised easements for Final Plat of Glenwood Addition, a 12 lot residential subdivision containing approximately 12.6 acres. The property is generally located west of Wakarusa Drive and east of Eisenhower Drive. Submitted by Peridian Group, Inc., for Glenwood LC, property owner of record.

ACTION TAKEN

Motioned by Comm. Jennings, seconded by Comm. Haase to approve the revised Final Plat for Glenwood Addition, reflecting revised utility and drainage easements, and forward it to the City Commission for acceptance of easements and rights-of-way, based on the findings of fact presented in the body of the Staff Report and subject to the following conditions (those highlighted in yellow have not yet been met):

1. Submittal of a downstream analysis for wastewater services and approval of this analysis by the city’s Utilities Department prior to scheduling of the final plat on the City Commission’s agenda for acceptance of easements and rights-of-way.

2. Pinning of the lots in accordance with Section 21-302.2 of the Subdivision Regulations.

3. Provision of the following fees and recording documentation:

a) A current copy of a paid property tax receipt.

b) Recording fees made payable to the Douglas County Register of Deeds.

c) A completed Master Street Tree Plan in accordance with Section 21-708a.3.

4. A Temporary Utility Agreement.

5. Submittal of public improvement plans for the extension of water, sewer, and stormwater improvements.

6. Revision of the final plat to include the following:

a) Deletion of the 10-foot pedestrian easement at the southwest corner of Lot 7. Instead, notation of a 10-foot pedestrian easement should be included along the western and southern sides of Lot 7.

b) A note, stating that only one access point is allowed to Wakarusa Drive for Lot 13.

c) Indication, with hatch marks, of no access allowed onto Wakarusa Drive, except at approved point.

d) Notation of the Book and Page number for the cross access agreement related to providing access from Lot 1 to the access easement that will serve the multi-family portion of the site.

e) Minimum elevations for building openings (MEBOs) for all lots (Lots 6, 7, 8, & 13) adjacent to drainage easements.

f) Revision of the Planning Commission Chair to Holly Krebs.

Motion carried unanimously, 9-0 as a part of the Consent Agenda.

At this time the Commission moved to Item 8

REGULAR AGENDA (SEPTEMBER 25, 2006) MEETING:

PUBLIC HEARING ITEMS:

SWEARING IN OF SPEAKERS:

Item 5 was deferred to the Wednesday meeting at the applicant’s request.

PC Minutes 9/27/06

ITEM NO. 5:              SPECIAL USE PERMIT FOR T-MOBILE; 2206 E 23^RD STREET (SLD)

SUP-07-01-06:  Special Use Permit for a 150’ T-Mobile monopole cellular tower and equipment shelter. The property is located at 2206 E 23^rd Street. Submitted by Selective Site Consultants for T-Mobile Central LLC dba T-Mobile. Knights of Columbus Council 1372 are the property owner of record. (This item was deferred from the August Planning Commission meeting at the applicant’s request).

STAFF PRESENTATION

Sandra Day, Staff, gave a brief introduction and overview regarding placement and construction of the new communications tower at the Knights of Columbus site. 

APPLICANT PRESENTATION

Jess Louk, Selective Site Consultants, stated the tower meets specifications and requirements.

Comm. Eichhorn asked if the stealth tower will hold at least 2 other carriers and what were the impacts of using a stealth tower instead of a traditional tower.

Mr. Louk replied that the 150 foot tower will hold 3 carriers.  He said the “stealth” tower design has pros and cons but he is willing to go along with the current plan.  He said the tower limits propagation or disbursement in a 360° direction.  In a highly dense area this can result in a request for a second tower in the same area.  Installation of stealth towers results in towers closer together.

Comm. Harris asked if the permit carries with the property if the property is sold. 

Ms. Day stated the permit would carry.

Comm. Burress questioned how much area reduction would occur with a different type of tower. 

Shay Bernard, T-mobile, said there would be an approximate 5-10% footprint decrease  and an approximate 10-20% reduction in area coverage.  

PUBLIC HEARING

No members of public spoke regarding this item.

ACTION TAKEN

Moved by Comm. Harris, seconded by Comm. Haase to approve SUP-07-01-06, a Special Use Permit for the construction of a 150’ tower and placement of antenna and accessory structure and forwarding of it to the City Commission with a recommendation for approval, based upon the findings of fact presented in the body of the staff report and subject to the following conditions:

1. Completion of an independent review prior to consideration of the request by the City Commission.

2. Execution of a site plan performance agreement.

3. Facility shall be inspected annually at owner’s expense and inspection report shall be filed with Planning Director per section 20-529 (4).

4. Provision of a fee “sufficient to cover the cost of an independent study and provision of a form authorizing the city to use those funds to hire consulting engineers to review the application and advise the city on the extent to which the applicant has or has not met the Burden of Proof, required by subsection  20-529 (7)”. (Such fee shall be established by the City Commission) per section 20-529 (6);

5. Parking lot shall be restriped around tower, per staff approval to maintain access circulation and parking.

6. Future parking lot lighting shall require provision of a photometric plan per staff approval prior to issuance of a building permit.

7. Show and note any lighting for the equipment within the base compound area per staff approval. Lighting shall be shielded and directed downward.

8. Provision of a revised site plan to show and note the utility easement including the deed book and page reference.

          Motion passed unanimously, 10-0.

PC Minutes 9/25/06

ITEM NO. 6:    CONDITIONAL USE PERMIT FOR VERIZON WIRELESS; 1271 N 222 ROAD (SLD)

CUP-08-06-06:  Conditional Use Permit for Verizon Wireless, for a 150’, 4 carrier monopole tower and equipment shelter. The property is located at 1271 N 222 Road. Submitted by Verizon Wireless LLC, for Ronald E. and Margaret E. Shouse, property owners of record.

Item 6 was deferred prior to the meeting at the applicant’s request.

Items 7A & 7B were deferred prior to the meeting.

Recess LDCMPC

Convene joint meeting with Eudora Planning Commission

PC Minutes 9/25/06

ITEM NO. 7A:           A AND VC TO A-1; 10 ACRES; 1273 E. 1900 ROAD (LAP)

Z-08-23-06: A request to rezone a tract of land approximately 10 acres, from A (Agricultural) and VC (Valley Channel) to A-1 (Suburban Home Residential District). The property is located at 1273 E. 1900 Road. Submitted by David C. and Pamela W. Morrison, property owners of record. This is a joint meeting with Eudora Planning Commission.

ITEM NO. 7B:           PRELIMINARY PLAT REQEUST FOR WAKARUSA FARM ESTATES; 1273 E 1900 (LAP)

PP-08-12-06:  Preliminary Plat request for Wakarusa Farm Estates, located at 1273 E. 1900 Road.  The proposed residential subdivision contains approximately 9 acres.  Submitted by David C. and Pamela W. Morrison, property owners of record. This is a joint meeting with Eudora Planning Commission.

Recess joint meeting with Eudora Planning Commission

Reconvene LDCMPC

PC Minutes 9/25/06

ITEM NO. 8:              AMENDMENTS TO ARTICLES 3 & 5 OF THE COUNTY ZONING REGULATIONS

TA-08-07-06:  Amendments to Articles 3 & 5 of the County Zoning Regulations regarding the definition of lot width and the establishment of setbacks along roads based upon road classification.  [Revisions associated with proposed rural development regulations.]

STAFF PRESENTATION

Sheila Stogsdill, Staff, gave a brief overview of the amendments regarding changing setback and frontage requirements.  Amendments will add definitions to clarify verbiage and insert specific terminology. 

Comm. Burress stated that some of the language is problematic and questioned whether there are time sensitive issues that need to be addressed immediately or whether the changes could be sent to Staff.

Ms. Stogsdill replied that the legal notice has not been sent out and as the subdivision regulations are not scheduled until October, there is not a time issue. 

PUBLIC HEARING

No member of the public spoke regarding this item.

COMMISSION DISCUSSION

Comm. Burress said the text should be understandable and adhere to mathematical principles.  He stated the definitions should be clearer, for example, “street frontage” and “all of property” should be clarified to define all of lots or all of parcels.  Frontage and portion probably means a line, not an area.  He said a line is one dimensional and it should be decided whether an area or line is meant. 

Comm. Krebs stated that a line of a lot is not clear and questioned whether a border or perimeter is meant.

Ms. Stogsdill replied that the Commission could highlight areas needing rewording and the changes could be brought back to the Planning Commission for consideration.

ACTION TAKEN

Moved by Comm. Burress and seconded by Comm. Harris to defer Item 8 to the October Planning Commission meeting. 

COMMISSION DISCUSSION

Comm. Harkins asked if the Development Code was written by a professional consultant and reviewed by Staff and if standard nomenclature was used. 

Ms. Stogsdill replied that the Code was written by a consultant in conjunction with the former Planning Director and was based on discussions held over the past year. 

Comm. Harkins expressed concerns regarding the amount of time required for proof reading the Development Code in its entirety. 

ACTION TAKEN

Motion on the floor was to defer Item 8 to the October Planning Commission meeting. 

          Motion passed 8-1 with Comm. Harkins in opposition.

PC Minutes 9/25/06

ITEM NO. 9:              REVISIONS TO CHAPTER 20, DEVELOPMENT CODE

TA-07-06-06:  Consider revisions to Chapter 20, Development Code to correct inconsistencies since adopted.  (Initiated by the Planning Commission on August 30, 2006).

STAFF PRESENTATION

Joe Rexwinkle, Staff, gave an introduction to the Industrial/Business Park District portion of the Development Code and outlined recommended corrections.  Mr. Rexwinkle explained the IBP table which lists detailed changes. 

PUBLIC HEARING

No members of the public spoke regarding this item.

ACTION TAKEN

Moved by Comm. Finkeldei, seconded by Comm. Haase to forward a recommendation of approval of the proposed revisions [TA-07-06-06] to Articles 4,5,9,13,15 and 17 of the “Development Code, July 1, 2006 Edition,” to the City Commission. 

          Motion passed 8-0-1, with Comm. Harris abstaining.

PC Minutes 9/25/06

ITEM NO. 10:           REVISIONS TO CHAPTER 20, DEVELOPMENT CODE

TA-09-09-06:  Consider initiations of revisions to Chapter 20, Development Code for future public hearing.

STAFF PRESENTATION

Joe Rexwinkle, Staff, gave an introduction and overview of the revisions to Article 5 regarding accessory dwelling units & Article 10 which addresses location and surfacing requirements for outdoor storage areas.  Mr. Rexwinkle stated the Development Code is silent on this issue.   

Comm. Burress questioned Staff’s response to the League of Women Voters communication regarding this item.  He stated the League’s point is to encourage more dense use to maintain owner occupancy.  He said the change could create a tendency to turn residences into rentals.

Mr. Rexwinkle replied that Staff will be looking into this issue over the next month and owner occupancy concerns will be taken into consideration.

Comm. Harris asked if the changes will be allowed in all RS districts. 

Ms. Stogsdill said that it will only be allowed in RS7 and larger lot districts.

PUBLIC HEARING

No member of the public spoke regarding this item. 

ACTION TAKEN

Moved by Comm. Finkeldei, seconded by Comm. Jennings to initiate the proposed revisions [TA-09-09-06] to the “Development Code, July 1, 2006 Edition,” for public hearing at the October Planning Commission meeting.

                   Motion passed 8-0-1, with Comm. Harris abstaining.

Item 11 was deferred prior to the meeting.

PC Minutes 9/25/06

ITEM NO. 11:           AMENDMENT TO HORIZON 2020, CHAPTER 6-COMMERCIAL LAND USE

CPA-2006-03: Consider amendments to Horizon 2020, Chapter 6- Commercial to address consistency issues in the Commercial Centers descriptions.

PC Minutes 9/25/06

MISC. ITEM NO. 1: OLD BUSINESS

Resolution for Chapter 9, Horizon 2020, Parks Recreation and open space. (PGP)

STAFF PRESENTATION

Paul Patterson, Staff, gave a brief introduction and overview.  Mr. Patterson stated this resolution is a follow up to the July 24^th Planning Commission’s approval of the amendment for Chapter 9.  He said that after Planning Commission approval, a joint City Ordinance/County resolution will go on to City Commission and Board of County Commission for final approval. 

PUBLIC HEARING

No members of the public spoke regarding this item.

ACTION TAKEN

Moved by Comm. Haase, seconded by Comm. Harris to approve resolution 2006-02, Amendment to Horizon 2020, Chapter 9-Park, Recreation, Open Space Areas and Facilities and forward to the County and City Commissions for approval of a joint resolution/ordinance. 

     Motion passed 8-1 with Comm. Finkeldei in opposition.

PC Minutes 9/25/06

MISC. ITEM NO. 2:

PC continued discussion of proposed T2030 Future Land Use Map

STAFF PRESENTATION

Bill Ahrens, Staff, gave an overview of the proposed T2030 Future Land Use map which incorporated changes suggested at the Planning Commission Mid-Month meeting.  The various maps showed different types of commercial centers, a legend was added, floodplain was added and steep slopes were added. 

Dan Warner, Staff, outlined changes made to the map and to the legend.  Commercial centers are correctly identified; changes were made to the legend to differentiate the various commercial center types. 

COMMISSION DISCUSSION

Comm. Haase asked if the map was reflective of the FEMA floodplain or if it was FEMA plus two feet of freeboard. 

Mr. Warner replied that the map shows FEMA without adding freeboard.  He stated that it is not possible to show plus two yet as the contours for the County are not included and there is a wait for new aerials which should be available by the end of the year. 

Mr. Warner noted that steep slopes at 15% or greater are represented by wavy lines and pointed out areas of steep slope.

Comm. Haase questioned why 15% was selected as the definition of steep slope and asked if 10% should be used to show densities.  He stated that 15% seems to be an extreme measure and would be low density and potentially unbuildable. 

Ms. Stogsdill stated that 15% was used from Plan 95 forward.  There have been developments on steep inclines.  10% is the maximum for a public street without obtaining a variance from the City Commission to exceed that standard.  She said that some areas with 15% steep slope are buildable and does not know if 10% is a palatable option.

Comm. Burress stated that the standard should be based on the cost of public infrastructure to support the development rather than the buildability of the area.

Comm. Krebs asked whether Staff could trace the origin of the 15% threshold for steep slope and report back to the Planning Commission.

Mr. Warner discussed the Traditional Neighborhood Design (TND) option for west of K-10 and noted areas of green space, drainage and the quarry on the map. 

Comm. Harkins asked about the green space associated with the drainage and if the gray area representing the quarry will have additional uses in the future.

Mr. Warner stated the data would have to be revisited to fully answer the question but noted the floodplain does not extend much further into the green space area.  He also said it is unlikely the quarry will transition to other uses. 

Comm. Jennings asked if steep slope pertains to the elevation of the graded street or to the grade of the lot.  He said there are many areas where lots have more than 10% drop in elevation but the lots themselves are flat. 

Comm. Haase stated sloped areas will have lower density and as areas with challenging slopes are identified, traffic forecasts will be easier to obtain. 

Comm. Krebs said the land use projections can be a tool to identify areas that may be “reserved” for mixed use. 

Mr. Warner asked if the Commission wished to consider Traditional Neighborhood Design scenarios on the future land use map without having existing policy for this scenario.

Comm. Burress suggested having 10-15% steep slope on the same map and said while there is no code, there is policy existing in Horizon 2020 (H2020) which talks about more density and encouraging public transportation.

Mr. Ahrens stated that while it is not specifically mentioned in goals and objectives, it does encourage development patterns that include transit.

Comm. Harkins asked if the purpose is to rewrite the chapter and revisit the policies to think outside the box.

Comm. Lawson said having an expert opinion regarding slope would be beneficial and asked if the Southeast Area Plan is complete. 

Ms. Stogsdill replied that the Southeast Area Plan is waiting on action from the City and County Commissions.

Comm. Krebs asked if the Commission is in favor of seeing more of the Traditional Neighborhood Design concept presented in the land use maps.

Comm. Harris said she is in favor of seeing more of TND in Lawrence.  She asked if a grocery store is needed and would work in a TND area.

Mr. Warner replied that grocery stores are allowed.

Comm. Harkins stated that while grocery stores are allowed, supermarket being built instead of grocery stores.

Comm. Jennings said the Hy-Vee center is approximately 125,000 feet and would be similar in size to a supermarket.  He commented that as grocery stores become larger there is not as much demand for other businesses.  The services would be provided by the grocery stores. 

Comm. Erickson said if the Commission wants to see TND, there should be an attempt to work on codes that will allow and encourage this type of development. 

Mr. Warner replied that if given the direction to include these ideas it will not include the entire Urban Growth Area (UGA), just a targeted option for future development.

Comm. Haase stated the Commission has talked a long time about connecting all low areas as green space with recurring corridor setback.  He believes it would be interesting to see an aggressive approach to connecting green spaces. 

Mr. Warner said if a consultant is brought in to work on TND code, it would be his hope to get TND ideas throughout the UGA.  There will be future planning that is TND oriented and the transportation policy can be amended after the fact. 

Comm. Harkins asked if there was a reason to do the entire UGA in this version of the transportation plan or if segments could be targeted.

Mr. Warner stated it is unlikely the entire UGA will be used.  T2030 will be used for modeling and decisions will have to be made about what will not be built out in T2030.  

Mr. Ahrens said on the future land use map the majority of UGA was future agricultural property.  There is currently development in areas  that had not been anticipated and the  UGA has been expanded. 

Comm. Harkins stated it is premature to do much work in south area until alignment of the highways is resolved and there is a better idea of when the treatment plant will be in place.

Mr. Ahrens said it would be ideal to have the ideally would be good to have the treatment plan in place but due to the federal deadline for the transportation plan, this must be completed by September 2007.

Comm. Haase stated the scope of the area that will be included is the entire county.

Comm. Harkins asked if the requirement for detail is different for different areas.  He also questioned the vision for agricultural and floodplain areas once incorporated into the UGA and if there are other communities that have utilized floodplain areas as an attraction to benefit the city.

Mr. Ahrens replied that east of the county line a list of specific projects needs to be developed which require a certain level of detail. 

Mr. Warner replied that the treatment plant is scheduled to come online in 2011. He also stated he would be happy to research other communities that have turned floodplain areas into an attraction. 

Comm. Burress asked what resolution is necessary. He said employment clusters are important to estimate and asked if the roads will be adequate in T2030.  Comm. Burress questioned whether looking at buildout is necessary at this stage.  He asked what the city is going to look like after buildout.

Mr. Ahrens replied a dataset will need to be built for each point requiring analysis.  There will have to be a modeling process to come up with interim points to see when facilities will need to come on line and also stated that census tracks are divided into traffic analysis.

Comm. Krebs asked the difference between the map presented this evening and a map that would show more density and include traditional neighborhoods.  She asked how it would affect the transportation planning and if that would be a smaller overall footprint. 

Comm. Haase said that there is policy consideration and the Commission can give direction to the committee.  He stated they can go forward with a cul-de-sac model or can transition the plan transition to include walkability and a TND.  He encouraged the Commission to make a decision on direction for the committee and to give definition to the process. 

Comm. Burress stated the decision and direction needs to take place during the Planning Commission meeting otherwise there will be a month of modeling lost and the deadline will not be met. 

Comm. Harkins asked why this is being done out of context in land use with H2020.  He stated if the Planning Commission makes major land use decisions during the meeting, the Commission will be locked into the options for future land use planning in order to complete the transportation use plan in a short period of time.  Comm. Harkins questioned if the goal is to meet the federal deadline or to meet future community needs. 

Comm. Haase stated that the federal deadline must be met.  He said this is an opportunity for the Planning Commission and MPO to give substantial input to the T2030 committee. 

Comm. Harkins commented that the process needs to include and consider those who live in the community. 

Comm. Haase said that there is a need to demonstrate public outreach. 

There was extended discussion about public outreach regarding T2030 and the SDAT process.

Comm. Krebs asked for a timeline for completion of the T2030 plan.

Mr. Ahrens stated that it would be ideal to have a consensus regarding the land use plan by the end of the year.    

Comm. Finkeldei questioned the model to be used to develop the land use plan, H2020 or TND.  He said a change from the current model should only be done with a great deal of input from the public.  If T2030 is wrong, the model will be based on the assumption of less traffic and he would prefer to err on the side of building roads to handle more traffic.

Comm. Burress agreed there should be a schedule for public involvement.  He said this community does not have a coherent way of planning which cannot be fixed now but the Planning Commission has the opportunity to provide leadership in this issue.  Comm. Burress said it is not possible to utilize a “top down” approach due to the lack of time involved in the process and suggested the need to make many partial plans at different levels which would lead to a series of reactions over time.  He gave the example of planning for 20 years out, building for 5 years then replanning.  He said in the short term mistakes made are not as bad due to financial constraints and suggested giving general direction, not specific and immediate reactions.

Comm. Haase stated the biggest land use decision in recent years was the school districts’ decision to purchase the Free State High School site.  The City is in discussions to integrate the local transit system with the KU bus line, which has major transit implications.  He said the Economic Development Board made a recommendation in total contradiction to land use plans and industrial development near the airport has sewer and drainage issues. 

Comm. Harkins said he does not accept top down planning and that it is about getting all parties together and attempting to get everyone moving in the same direction.  He suggested asking Staff to produce a detailed planning process and schedule for completion of the transportation plan that includes significant public input with the land use and transportation elements overlaid on top.

Comm. Krebs asked the difficulty of the modeling process and if it would be possible to have two options, the current presentation and a TND option.

Mr. Ahrens replied that multiple scenarios can be developed but only one can be submitted.  He said once future land use is agreed upon, multiple models can be presented to the Planning Commission and the public.

Comm. Haase stated in preparing the T2025 traffic model, it became apparent the cost would be approximately a half billion dollars to the community and if the half billion was not spent, it would go to LOSC.  He questioned what should be done to rethink transportation. 

Comm. Harris cited a need to include public involvement in the process.

Comm. Krebs asked for the Commission to provide direction to Staff. 

Comm. Finkeldei said direction was given at the mid-month meeting and he would like to continue the process coupled with more public involvement. 

Comm. Burress stated there will not be significant public involvement until more detailed information regarding land use and financials are provided.  He suggested telling the public what they would and would not get based on two different scenarios.  

Mr. Ahrens said he could proceed with two scenarios until reaching a point in which separate scenarios became cumbersome.

Comm. Krebs suggested the second land use map be developed with a TND focus. 

Comm. Harkins commented that a significant effort needs to be made to ask community leaders to provide input on the land use scenarios.  

Comm. Krebs responded that it is reasonable to seek input after the scenarios are developed. 

Comm. Harkins disagreed stating a plan cannot be created without a vision on design.  He said he would input on the vision before developing the scenarios.  The effort would be made to create a consensus rather than polarize community leaders.   

Comm. Finkeldei asked if the Comprehensive Plan Committee (CPC) could be utilized to address some of the land use issues and provide outreach for land use concepts.

Comm. Haase stated T2030 was constituted to accomplish many of the concerns mentioned.  He said the comprehensive plan gives the Commission the ability and guidance to change direction from the standard cul-de-sac development.

Comm. Harkins said this is the time to reach out to groups, while the scenarios are being developed. 

Comm. Haase replied that T2030 could not agree on what needed to be done to obtain public input and said it might be difficult for the Planning Commission to accomplish this task.  He said Staff has a schedule and the responsibility to design a public outreach program.  Comm. Haase continued that the City and County leaderships are getting input on a real time basis.

Ms. Stogsdill suggested scheduling T2030 for further discussion, with the two scenarios, for the October Planning Commission meeting.

Comm. Krebs said the Commission will direct Staff to develop the TND map along with the T2030 scenario and work on the initial public input.  The Commission will receive T2030 results and discuss all of the comments at the October Planning Commission meeting and the November mid-month meeting.  Staff will provide the Commission with a timeline for the planning process and an outline of the public involvement process.

Planning Commission in recess at 9:50 p.m and will reconvene at 6:30 p.m. on 9/27/06

PC Minutes 9/27/06

_____________________________________________________________

September 27, 2006 – 6:30 p.m.

Commissioners present: Burress, Eichhorn, Erickson, Finkeldei, Haase, Harkins, Harris, Jennings, Krebs and Lawson

Staff present: Stogsdill, Day, M. Miller, Zollner and Kemerling

_____________________________________________________________

BEGIN PUBLIC HEARING (SEPTEMBER 27, 2006):

COMMUNICATIONS

a) Receive written communications from staff, Planning Commissioners, or other commissioners.

Ms. Stogsdill outlined the following communications:

ITEM 12:  Revised action letter from the Historic Resources Commission

ITEM 14:  Memo from Staff

               MISCELLANEOUS:  Revised PC By-laws dated 8/30/06

b) Disclosure of ex parte communications.

No ex parte items were indicated.

c) Declaration of abstentions from specific agenda items by commissioners.     

Comm. Finkeldei abstained from Item 12.

SWEARING IN OF SPEAKERS:

PUBLIC HEARING ITEMS:

PC Minutes 9/27/06

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 Chinn, 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. 

PC Minutes 9/27/06

ITEM NO. 13:           PRELIMINARY DEVELOPMENT PLAN FOR PINE RIDGE PLAZA; 31^ST & OUSDAHL ROAD (SLD)

PDP-08-09-06:  Preliminary Development Plan for Pine Ridge Plaza Addition. The plan proposes the construction of 7373 square feet of additional commercial space. The property is generally described as being located at 33rd and Iowa Street. Submitted by Peridian Group, Inc., for Inland Western Lawrence LLC c/o Inland Western Retail Real Estate Trust I, property owners of record.

STAFF PRESENTATION

Sandra Day, Staff, gave an introduction and overview of the preliminary development plan, Pine Ridge Plaza.  She presented graphics and a summary providing an outline of the square footage of buildings and parking lots.   

APPLICANT PRESENTATION

Charlie Steinbacher, Peridian Group, stated the applicant agrees to all of the Staff recommendations. 

PUBLIC HEARING

No members of the public spoke regarding this item.

CLOSING COMMENTS

Ms. Day summarized the request and said Staff would work with the applicant to create a location to hold special events.  The applicant currently has one or two events per year and will need to identify an area before the preliminary development plan is presented to the City Commission or with the final development plan. 

ACTION TAKEN

Moved by Comm. Lawson, seconded by Comm. Finkleldei to recommend approval of the Preliminary Development Plan based upon the findings of fact presented in the body of the Staff Report and forwarding it to the City Commission with a recommendation for approval subject to the following conditions:

1. Provision of a revised Preliminary Development Plan to:

a. Correct spelling of property owner for Lot 1B,

b. Correct landscape plan per staff approval,

c. Correct building summary shown in parking summary to match that of proposed,

d. Correct parking summary to show consistent number, 

e. Correct use restrictions to include retail liquor sales permitted for World Market

COMMISSION DISCUSSION

Comm. Krebs asked for numbers for the total commercial area along this corridor. 

Ms. Stogsdill did not have total square footage, but indicated the Southern Development Plan had forecast a cap of 25 additional acres for the South Iowa Corridor which consisted of the expanded Wal-mart and Crown Chevrolet developments.  This fulfilled the maximum area to be rezoned. 

ACTION TAKEN

Motion on the floor was to recommend approval of the Preliminary Development Plan based upon the findings of fact presented in the body of the Staff Report and forwarding it to the City Commission with a recommendation for approval subject to the conditions listed in the staff report.

      Motion carried unanimously, 10-0.

PC Minutes 9/27/06

ITEM NO. 14:           PRELIMINARY DEVELOPMENT PLAN FOR MERCATO; N OF HWY 40 & E OF HWY K-10 (MKM)

PDP-08-08-06:  Preliminary Development Plan for Mercato. The plan proposes a mixed use development containing 337,700 square feet on 10 lots and approximately 45 acres. The property is generally described as being located North of Highway 40 and East of Highway K-10. Submitted by Landplan Engineering, P.A., for Kentucky Place, L.C., Venture Properties, Inc., Scottsdale Properties, L.C., JDS Kansas, L.C., and Tat Land Holding Co., L.C., property owners of record.

STAFF PRESENTATION

Mary Miller, Staff, gave an introduction and overview.  She said the area is currently undeveloped and has been reviewed with the 1966 Zoning Ordinance and Commercial Design Standards (CDS).  She stated the final plat has been approved by the Planning Commission but has not been heard by the City Commission. The development plan has a 175,000 square foot building, 2 buildings of 50,000 & 60,000 square feet and 7 smaller perimeter pad site buildings.  Ms. Miller described the driveways, access easements and traffic considerations.  She said the phase development schedule did not include a timing element which the applicant must provide.  Ms. Miller stated one condition listed in the staff report is that the applicant provide rough grading to reduce site disruption and allow vegetation to be established; the applicant did not feel this would be possible and the City’s Infrastructure Coordinator felt it would be difficult for the applicant to provide the grading, therefore the condition has been revised.    

Ms. Miller stated that some of the CDS review standards are only applicable to the Final Development Plan (FDP) and the applicant was made aware that they would be required in the final stage.  She said the applicant provided Staff with graphics that indicate the common open space and public space being provided is adequate and the applicant has agreed that details will be shown on the FDP.  Ms. Miller said that Staff would like to compliment the applicant on the planned pedestrian connectivity.  Staff offered two suggestions to improve pedestrian and bicyclist connectivity:

1. Applicant should build a 10 foot pathway to connect the terminus of the central 10 foot pathway on George Williams Way to the intersection of George Williams Way and W 6^th Street.

2. Applicant should extend the pathway from Lot 3, Block One to the central pathway.

Ms. Miller said the applicant has provided approximately 300 more parking spaces than currently required and stated that 50% of the excess parking must be paved with a permeable surface.  This requirement can be waived if additional interior landscaping is provided in an area equal to the amount of permeable surface which was required.   

She said the stormwater management is adequate enough to accommodate the additional parking spaces, but additional interior parking lot landscaping is needed to break up the expanse of parking for Lot 1, Block One. 

Ms. Miller discussed two communications that were received regarding this development plan; one is from counsel for the applicant requesting Condition 1 be revised regarding the benefit district.  Ms. Miller said the City Utilities Engineer indicated the benefit district will have to be redistributed and said to retain this condition.  An additional communication was received from the League of Women Voters stating concern that the Retail Market Study and Traffic Impact Study have not been completed.  Ms. Miller said that both are complete.  The League was also concerned that there was nothing preventing the largest building from being a mall.  Ms. Miller pointed out that the PCD zoning condition 3(g) requires that one store with more than 40,000 square feet be designated as a “single store” building.  The 175,000 square foot building is the only retail building with greater than 40,000 square feet and it will be designated as a “single store” building on the plan.   Ms. Miller said that Staff is recommending approval of the applicant’s request subject to the revised conditions contained in the September 27, 2006 memo to the Planning Commission. 

Applicant presentation

Jane Eldredge, Barber Emerson, for the applicant stated all recommendations made by Staff are acceptable with the exception of Condition 1 regarding the benefit district.  Ms. Eldredge said the property is in sewer benefit districts with the exception of 17 acres which is outside of this property.  She continued that the 17 acres is outside the legal area of this Planned Commercial Development (PCD). 

Ms. Eldredge showed graphics of the PCD and outlined connectivity and green space.  She said this development is unlike anything else in Lawrence or Douglas County.  The development will have a 50 foot easement with street trees on 6^th Street.  She said Mercato Drive is a public street with trees on both sides.  Ms. Eldredge then discussed drawings of the project’s architectural elements.

Ms. Eldredge stated the PDP is consistent with Horizon 2020 (H2020), Chapter 6 and the nodal plan and zoning has been approved by the Planning Commission and the City Commission.  She said the plan meets all CDs.  Ms. Eldredge does not believe there is authority to impose Condition 1 on the 17 acres not part of the PDP. 

Comm. Jennings questioned the distance from 6^th Street to the larger building. 

Ms. Eldredge replied it is 1025 feet back, in excess of 3 football fields.  The Target store is approximately 650-700 feet from Iowa. 

Comm. Harris asked if the frontage road will be vacated with this phase.

Ms. Eldredge said the frontage road will be vacated when Overland Drive connected to the frontage road. 

Tim Herndon. Landplan, stated that Overland Drive needs to be constructed westward to meet the frontage road and the disconnection will occur at that time.   

Comm. Eichhorn expressed concerns with removing the benefit district condition, particularly as the City has indicated it is needed. 

Phil Struble, Landplan, said the preliminary plat has an agreement not to protest the benefit district.  He feels this condition is a duplication and the concern is the addition of a condition that pertains to 17 acres that are not part of this project. 

Comm. Eichhorn asked if the pump station is adjacent to the property. 

Mr. Struble replied that there is an existing pump station near the project.  He said the proposed pump station is beyond the limits of this request. 

PUBLIC HEARING

No members of the public spoke regarding this item.

CLOSING COMMENTS

Ms. Eldredge said this is a complicated project and the Staff has been terrific.  She stated the applicants have worked hard with Staff to move forward.  Ms. Eldredge read an excerpt from the February Planning Commission minutes in which Comm. Haase stated “you can count on me.”

Ms. Miller clarified that in the Commercial Design Standards review the view from 6^th Street is more a pedestrian viewpoint when looking at the landscaping of the parking lot.

Comm. Harris asked for information on the 6^th Street sidewalk.

Mr. Herndon explained that the sidewalk is the closest thing to 6^th Street and is existing.

Comm. Harkins asked for Staff comment on the benefit district concerns.

Ms. Miller replied in speaking with both Phillip Ciesielski, Utilities Engineer, and Chuck Soules, Public Works Director, both stated there was a need for the benefit district. 

Comm. Burress asked about the project not addressing timing and asked if this project can be absorbed. 

Ms. Stogsdill answered that there was an evaluation of the Retail Market Study (RMS) when the zoning was proposed.  The City’s consultant reviewed Northgate, Mercato and Bauer Farm and concluded all of the proposed square footage can be absorbed. 

Comm. Haase questioned the placement of a notation restricting use on various building and limiting retail square footage. 

Ms. Miller stated the notation would be on the PDP and limits are contained in the summary table (Condition 3D).

Comm. Haase asked if the applicant would accept the same condition as placed on Northgate. [“Provision of a note on the Preliminary Development Plan that states: “The Planning Commission shall have the authority to establish additional use restrictions on the Final Development Plan. Such restrictions may be based in part on the completed Retail Market Study database and recommendations on suggested specific uses that are not appropriate.”  ]

Ms. Eldredge stated the applicant would not accept the Northgate condition as they do not believe it is legal to impose it.

Comm. Haase asked John Miller if he believed the Northgate condition regarding specific use of commercial retail properties could be imposed by the Planning Commission. 

Mr. Miller said he was not familiar with the Northgate issue and would have to perform research regarding context and how it relates specifically to this project. 

Comm. Haase questioned if it would be appropriate to add the condition with the understanding that it would be reviewed by Legal Services and removed if it was found to be unlawful. 

Mr. Miller stated it could be done prior to the PDP moving forward to City Commission for approval.

Comm. Harkins asked Ms. Eldredge to explain why she believes the condition is not legal.

Ms. Eldredge cited Kansas State Law, Chapter 12-742(a) which states the need for an ordinance that outlines how and where to restrict uses and that restrictions must be uniform in every district.  She also discussed the exception in City Code Section 20-1004.1 that allows uses to be restricted at the time of zoning.  She said zoning restrictions must be included in zoning ordinance that is published and may also be shown with a note on the PDP but publication should not be confused with restriction.

Ms. Eldredge also noted that City Code 20-1005 has a prohibition against applying restrictions on a project that were not in place at the time the project was started.  She said there cannot be additional restrictions attached at the time of the Final Development Plan.  Ms. Eldredge stated that you have to base decisions on the law today and what exists now, not what the restrictions might be in the future. 

Ms. Stogsdill replied that historically, uses in PCD’s have been restricted in the PDP or zoning stages.  She agreed that it would not be fair to approve the PDP with a set of uses, have the FDP submitted and not have the applicant know in advance whether the uses will be allowed.  She said that restriction of uses should be on the front end of the process.

COMMISSION DISCUSSION

Comm. Finkeldei complimented Staff on a fine presentation and said he appreciated the applicants bringing in good visuals that show the use of the project.

Comm. Jennings said his only concern is that commercial tenants need to be seen and there will need to be a big name retailer to draw in customers.  He stated it may be difficult for the buildings to be seen, particularly with the volume of trees between the street and building, and that everyone needs to be realistic to make this successful. 

Comm. Lawson questioned what is available to the businesses for signage. 

Ms. Stogsdill replied that signs are regulated by Neighborhood Resources.  She said there will be wall signs facing two streets and a monument sign for the entire development.  Ms. Stogsdill stated the applicant can request additional or different signage through the Sign Code Board of Appeals.    

Comm. Harkins said he believes this is a first class development that is good for the west gateway.  He stated he was impressed. 

Comm. Harris asked if there was a way to compromise on the first condition.  She stated her reluctance to remove a condition Staff recommends and asked if the same verbiage was used on the previous Condition 2.

Mr. Herndon stated the agreement not to protest has already been signed and recorded with the Douglas County Register of Deeds.  He said the condition exists and has been fulfilled. 

Ms Eldredge said all of this land is in the benefit district and has been paying into the benefit district.  She stated the concern about the condition is that the 17 acres is a different piece of ground that has already been recorded as part of a larger project.  She said nothing can happen on the 17 acres until there is an actual sewer benefit district and that this could end up delaying final approval on this piece of ground.  Ms. Eldredge stated she does not want to see something offsite hold up the larger project. 

Comm. Burress asked Staff for an explanation of why the condition is warranted. 

Ms. Miller replied that the City Engineer said the 17 acre property was annexed and the benefit district needs to be redistributed. 

Ms. Stogsdill stated she believes it is reasonable to strike the condition here and resolve it with the Utilities Department before the request goes to the City Commission.

Comm. Eichhorn said he is concerned with Condition 3A and he does not know if he has ever seen it before. 

Ms. Miller said the condition is common on many plats and development plans and is about ensuring that if a revision is made, all owners would have to be notified.  She said most would rather not be involved with every modification.

Comm. Burress asked if the project’s design standards meet the Commercial Design Standards.

Ms. Miller replied that it was not 100% in line but the design standards’ intent is to meet a goal and, for the most part, this project does that.

Comm. Burress questioned whether the development is walkable and noted there is substantial space between the stores. 

Ms. Miller said she believed it was walkable.

Comm. Burress asked if the plan is consistent with the Comprehensive Plan commercial chapter and if the project is held to the Comprehensive Plan in place at the start of the development or the one in place when the Planning Commission gives approval. 

Ms. Stogsdill replied that the commercial chapter has not changed.  It was updated in January 2004 and this application was submitted in 2005.  She stated the mechanism is not yet in place to measure absorption and it would be inconsistent to depart from that.

Comm. Krebs questioned the 300 additional parking spots that are being planned beyond what is required.  She asked if the additional landscaping will reduce the total number of parking spaces. 

Ms. Miller said the additional landscaping would impact the parking to a certain extent but it would not be extensive. 

Comm. Jennings asked about the connectivity to the recreational path along the bypass.  He commented that he hoped to there would be a willingness to allow parking for those wishing to use the recreational path and believes this could be a definite asset. 

Mr. Herndon said there is a 10 foot wide central path that permeates the site and their west side of the development will be an attempt to extend it to connect to the recreational path at some point.

Comm. Haase suggested the applicant look at the concept of groves of landscaping rather than islands.  He stated the project is well designed and a compliment to the community. 

Comm. Lawson asked for clarification on the conditions that are acceptable.

Ms. Miller said the second portion of Condition 1 regarding municipal utilities will be struck. 

Comm. Lawson asked if this was the applicant’s understanding. 

Ms. Eldredge replied in the affirmative. 

ACTION TAKEN

Moved by Comm. Lawson, seconded by Comm. Finkeldei, to recommend approval of the Mercato Preliminary Development Plan and forward to the City Commission based upon the findings of fact presented in the body of the Staff Report and subject to the following conditions:

1. Execution of an agreement not to protest the formation of a benefit district for municipal utilities  street improvements to Overland Drive between George Williams Way and the frontage road; George Williams Way from West Sixth Street to Overland Drive; Mercato Drive; and Mercato Way; (to be executed by all property owners within the PCD).

2. Loading area for Lot 3 Block One may be unworkable. It must be confirmed that adequate room exists for truck traffic and maneuvers without affecting vehicular or pedestrian traffic or the loading area must be relocated.

3. Provision of a revised Preliminary Development Plan to include:

a. note stating that all property owners of all properties waive their right to approve or disapprove any alterations or modifications to the preliminary development plan per Section 20-1011(f) of the City Code, if that is the intent of the applicants;

b. note stating that a ‘Use of Right-of-Way’ permit must be obtained from KDOT before any work may be done within the highway right-of-way. KDOT has requested that the following information be provided on the plan: A condition of the permit will be that the developer takes financial and physical responsibility for closure of the frontage road;

c. note which identifies ownership and designates responsibility for maintaining the open areas;

d. a note stating that no other buildings, beyond those specified for retail commercial use in Phase I and II on this plan’s summary table are allowed to be developed with retail commercial uses;

e. note that additional pedestrian connections to the development on the west will be added when the property to the west has developed;

f. note 16 must be revised to read: No building permits will be issued until the completion of either George Williams Way or Overland Drive to the subdivision;

g. note added to the plan identifying the building with more than 40,000 GSF which will be a single store building;

h. note added that all rough grading will be completed to the degree necessary to facilitate stormwater management and installation of utilities in Phase I.

i. correct current zoning designations;

j. the phasing schedule must include a time schedule for applications for final approval of all phases;

k. revised phasing schedule to show that the detention basin will be constructed with Phase I of the development;

l. Mercato Drive and Overland Drive must be revised with 3 lanes of traffic with center turn lane. If a revised TIS shows 3 lanes are not warranted, this condition will be removed.

Staff recommends the submittal of additional TIS data that analyzes turning movements on Mercato Drive. This information will assist Staff in making the determination on the number of lanes required on Mercato Drive.

l. Execute an Agreement Not to Protest the Formation of a Benefit District for   Mercato Drive for future expansion in the event the road is constructed with 2 lanes and the future traffic data demonstrate a need for a middle turning lane or left hand turning lanes

m. Shared access easement between Lots 1 and 2 of Block One, and Lots 2 and 3 of Block Two, to provide access in the event of property ownership change.

n. The driveway between Lot 3 Block One, and the shared driveway between Lots 2 and 3, Block Two must be offset;

o. fire hydrant locations must be added to the plan per Fire Inspector’s requirement;

p. pedestrian connection from the southern boundary of the development to the walkway along W 6^th Street, if possible with the grade change;

q. open space summary must be revised to reflect the amount of common open space, rather than all pervious surface per lot;

r. the common open space must be marked on the plan and the total area noted;

s. Lot 1, Block Two must be reconfigured to remove the parking area and dumpster from the peripheral boundary; and

t. the 10’ pedestrian/bike path must be extended from its point of exit on George Williams Way southward along the west side of George Williams Way to the W 6^th Street and George Williams Way intersection to allow bicyclists to connect to the 10’ path along W 6^th Street.

u. 15’ drainage easement located in northwest corner of parking lot in Lot 1, Block One must be removed or relocated, per City Stormwater Engineer’s approval.

Conditions of approval from the Commercial Design Standards & Guidelines Review:

1) The plan must be revised to show the dimensions included in the focal points, entry and intersection features.

2) All areas proposed for streetscape treatment must be marked on the plan with dimensions listed to equal 60% of the street frontage. 

3) The plan must show the sidewalk adjacent to the west side of the building on Lot 3 Block One being extended to the center pedestrian path with a notation that it will be extended if possible with the grade change;

4) The driveways between Lot 3, Block One and the shared drive between Lots 2 and 3, Block Two must be offset to reduce possible vehicle conflicts;

5) Staff recommends extending the center 10’ pedestrian/bicycle path from its terminus on George Williams Way south  to W 6^th Street, to provide connection with the pedestrian/bicycle path on W 6^th Street.

6) The plan must be revised to relocate the access aisle so it is not adjacent to the building, or design features must be provided which will reduce the possibility of vehicle/pedestrian conflict. If the main access aisle is to remain adjacent to the building it must include design features, such as raised surfaces, bulb outs, etc which would accomplish the goals of the Commercial Design Standards.

7) The applicant will provide a summary of the amount of interior parking lot landscaping provided in Lot 1, Block One and Lot 5, Block Two and Staff will determine the amount of additional interior parking lot landscaping required to meet the goals of the Commercial Design Standards.  The plan must be revised to reflect the additional interior landscaping for Lot 1, Block One in addition to the 15% of interior landscaping required by the Zoning Ordinance.

8) Staff recommends increasing pedestrian access through the parking lot of Lot 1, Block One by either providing two walkways, with one being in the southern portion of the lot or to provide one more centrally located pedestrian accessway which would line up with the crosswalks across Mercato Drive.

9) Any portion of the building facades with pedestrian walkways, that does not have an arcade or other similar feature will need to provide an 8’ area for foundation plantings.

10) The plan must be revised to demarcate the areas set aside as ‘public space’. 21,297 sq. ft. of public open space is required.

11) A note must be placed on the landscaping plan stating that 1/3 of the plantings must be evergreens. Street Trees are excluded from this requirement.

Motion carried 9-1 with Comm. Burress in opposition.

Adjourn 9:55 p.m.