LAWRENCE BOARD OF ZONING APPEALS
DECEMBER 7, 2006 – 6:30 P.M., CITY COMMISSION MEETING ROOM, FIRST FLOOR OF CITY HALL AT SIXTH AND MASSACHUSETTS STREET, LAWRENCE, KANSAS
MEETING MINUTES (approved by BZA on 1/04/07)
Board members present: Blaufuss, Bowman, Carpenter, Emerson, Goans, Lane, von Tersch
Staff present: Patterson, J. Miller and Kemerling
ITEM NO. 1: COMMUNICATIONS
· There were no additional communications to come before the Board.
· There were no ex parte contacts or abstentions disclosed.
· There were no deferral requests to be considered.
ITEM NO. 2: MINUTES
Mr. Goans asked that a correction be made to page 4 of the November minutes. He said under Board Discussions in a comment made by Mr. Carpenter, the 2nd sentence should read “rezoning ended up being withdrawn as property owners did not want it changed.”
Moved by Mr. Goans, seconded by Ms. Blaufuss to approve the November minutes as revised.
Motion carried 5-0-1 with Mr. Emerson abstaining. Mr. Carpenter was not present for the vote.
BEGIN PUBLIC HEARING:
BZA Minutes 12/7/06
ITEM NO. 3: 1401-1449 WEST 23RD STREET [PGP]
B-10-30-06: A request for a variance as provided in Section 20-1309 of the Land Development Code, effective July 1, 2006, which is a part of the Code of the City of Lawrence, Kansas, 2003 edition. The request is for a reduction in the number of off-street parking spaces required for an existing commercial shopping development that is looking for site plan approval under the new development code for a permanent area in the parking lot to be used for special events of a temporary nature. Article 9, “Parking, Loading and Access,” of the City Code, contains the standards for calculating the amount of off-street parking required for commercial uses. The amount of existing parking on the site does not conform to the standards of the new development code. The property is legally described as Lots A-1 and A-2, Replat of South Hills No. 3 in the City of Lawrence, Douglas County, Kansas. The subject property is located at 1401-1449 West 23rd Street. Submitted by George B. and Marlene J. Leinmiller, the property owners of record.
STAFF PRESENTATION
Paul Patterson introduced the item, a request for a reduction of parking spaces at 1401-1449 West 23rd Street. Mr. Patterson stated the applicant is requesting that two parking spaces be set aside for temporary events and sales. Under the previous Code, the applicant had adequate parking at 88 spaces. The new Code has a different computation for parking which is driving the variance request. Mr. Patterson said this is an established property with parking demand that does not exceed the supply. He stated the applicant frequently allows surrounding businesses to utilize parking in his lot. The applicant’s request includes using two parking spaces as a special temporary use area with a small stage construction. The old Code would have allowed this use with the application of a Temporary Use Permit. The new Code requires site planning to set aside properly landscaped, safe areas that would be identified for special use. Staff recommends approval of the variance.
Mr. Lane asked if the stage is going to be permanent?
Mr. Patterson replied that the stage is going to be a permanent structure that will be moved out to accommodate special events; it will not be remaining in the parking spaces when it is not in use. He continued that there will be identified areas that will be set aside for special uses which will be safe, landscaped, identified and not a detriment to the community.
Mr. Lane stated that the action before the Board of Zoning appeals is to grant a variance for the removal of two parking spaces.
APPLICANT PRESENTATION
George Leinmiller, owner of Ports of Call, commented that there is little signage used when temporary events are held. He said that he has worked extensively with Planning Staff to decide how to take an old, successful center and make the special use area workable. The best idea was to create a portable stage that is brought out for special events and stored away when not in use. Mr. Leinmiller said the stage would be low, accessible and not permanent.
Mr. Lane asked if the stage will be stored elsewhere on the site when not in use and will not take up parking space when being stored.
PUBLIC HEARING
No members of the public spoke regarding this item.
BOARD DISCUSSION
Mr. Lane said he felt this item is relatively straight forward and the concept of the code under which this was constructed seems reasonable.
Mr. Goans stated a concern that even though this individual is setting up the stage on a special use basis, there are no constraints to having others set up displays in parking lots if there is adequate parking. He said there have been other variances denied within the last couple of years that have reduced parking for outdoor special use. He said he is not comfortable opening a door for this type of activity.
Mr. Emerson said there may be unintended consequences but the door was not opened by the Board.
Mr. Patterson commented that this particular item is about parking. The concern would be if there would be this type of use in areas with limited parking. He said permanent improvements will have to be substantial to be allowed and will be difficult to retrofit.
John Miller, City attorney, advised the Board that one potential they have under 21-1309 is to approve the variance with conditions if there is concern about the future ramifications of this type of use. The code allows the Board to establish conditions for approval of the variance. He said the variance could be conditioned subject to approval of the site plan by the Planning Department and would address concerns regarding precedent being set by the Board.
Mr. Lane asked if the applicant would be required to establish this special use area through site planning if a temporary platform was not being constructed and parking spaces were not being decreased.
Mr. Patterson answered that a site plan without this special use area would go to the Planning Director for administrative approval and would go to the City Commission only if appealed. He said the reduction of what is existing prompted the variance request.
Mr. Carpenter asked the applicant the longest period of time the structure will remain in the parking spaces.
Mr. Leinmiller said approximately 24-72 hours would be the maximum amount of time.
ACTION TAKEN
Moved by Mr. Goans, seconded by Mr. Carpenter, to approve the requested variance to reduce the number of required minimum parking spaces as requested, based upon the findings as presented in the Staff Report.
The motion passed unanimously, 7-0.
BZA Minutes 12/7/06
ITEM NO. 4: 1141 WEST 21ST STREET [PGP]
B-11-31-06: A request for a variance as provided in Section 20-1309 of the Land Development Code, effective July 1, 2006, which is a part of the Code of the City of Lawrence, Kansas, 2003 edition. The request is to reduce the minimum exterior side yard setback requirement of 25 feet per Section 20-601 of the City Code, to a distance of 24.5’ along the west side of the property which abuts Mitchell Street. The request is for existing improvements on the property legally described as Lot 1, Block “A” of Southwest Addition Number 4 in the City of Lawrence, Douglas County, Kansas. The property address is 1141 West 21st Street. Submitted by Beau D. Jepson, the property owner of record.
STAFF PRESENTATION
Paul Patterson introduced the item, a request for an exterior side yard setback on the southeast corner of Mitchell Street. The lot was platted in 1954 and contains two single family dwellings. The primary structure was constructed in 1954 and the second in 1959. Mr. Patterson said the recorded lot is more than twice the size of a typical single family lot in the RS7 zoning district. The variance is for the west property line that is the exterior side yard. He said if the variance is not allowed, the property would be in non-conformance and Staff is recommending approval of the request.
Mr. Carpenter asked for the definition of accessory dwelling and the allowed uses.
Mr. Patterson stated the accessory dwelling can have additional living space with no kitchen but a bathroom is allowed.
Mr. Goans said the only issue is a variance of ½ foot and that if granted, the variance would have no bearing on the application for change of use of this structure that has been submitted to the Planning Department.
Mr. Patterson concurred and stated that the change of use application would not be approved if the variance is not granted as it would not meet code requirements under the current code.
APPLICANT PRESENTATION
Beau Jepson, applicant, appeared but did not have a presentation.
Ms. von Tersch asked the applicant how the structure is currently being used.
Mr. Jepson replied that he has a tenant.
Ms. von Tersch questioned whether there is a kitchen.
Mr. Jepson said there is a kitchenette.
PUBLIC HEARING
No members of the public spoke regarding this item.
ACTION TAKEN
Moved by Mr. Emerson, seconded by Mr. Bowman, to approve the variance request for the existing accessory building, located approximately 24.5’ from the west property line, based upon the findings as presented in the Staff Report.
Motion passed unanimously, 7-0.
BZA Minutes 12/7/06
ITEM NO. 5: 1912 MASSACHUSETTS STREET
B-11-32-06: A request for variances as provided in Section 20-1309 of the Land Development Code, effective July 1, 2006, which is a part of the Code of the City of Lawrence, Kansas, 2003 edition. The requests are to reduce certain parking and loading area design standards contained in Section 20-913 of the City Code, and the parking lot landscaping and buffer yard standards in Section 20-914 of the City Code for an existing developed property being converted to a commercial use. The property is legally described as Lot 4, Block 1, Haskell Place in the City of Lawrence, Douglas County, Kansas. The subject property is located at 1912 Massachusetts Street. Submitted by Paul Werner Architects for Leslie Dunham and Martin Camino who are the property owners of record.
STAFF PRESENTATION
Paul Patterson, gave an introduction and overview of the variance request for 1912 Massachusetts, a single family dwelling zoned CS (Commercial Strip). The house was constructed in 1925 as a single family home. The first variance request is for a reduction in the driveway width from 24 feet to 12 feet. The second request is to allow the applicant to not install curbs and gutters on the perimeter of the driveway. The applicant is proposing a 6 foot high fence at the property line. Mr. Patterson said Crystal Miles in Forestry suggested removal of a large tree in the backyard as the driveway would crush the roots. Staff has a concern that there will be additional drainage from the driveway and requests a condition that a retention area be designed to standards set forth by the City Stormwater Engineer.
Mr. Lane said it was not clear as to whether the City Stormwater Engineer suggested curbing to allow direct flow of drainage.
Mr. Patterson replied that Matt Bond, the Stormwater Engineer, recommended swales to slow down the run off and this condition can readily be included in the site plan.
Mr. Goans asked if the Stormwater Engineer’s preliminary review of this variance recommended dropping the curbs and gutters.
Mr. Patterson said Mr. Bond was comfortable with not having curbs and gutters; he doesn’t feel they are necessary in this case due to the flatness of the terrain. He said the new code allows more discretion for Public Works to look at requirements and do waivers.
Mr. Bowman asked about the lighting associated with the site plan and how it will affect the area.
Mr. Patterson stated that the applicant can be required to have cut sheets and it could be incorporated into the site plan.
APPLICANT PRESENTATION
Paul Werner, Werner Architects, for applicant stated they have looked at options to try to combine access to the site and there is not enough space to make a conforming driveway. Instead of having more traffic access a driveway that is not large enough, the thought is that it is better having two driveways with less traffic. Mr. Werner stated that the current gravel driveway does not meet code. He would like to put the high point as far to the east as possible to direct water to Massachusetts Street. The assumption is similar to what was done to the north; that dissipation of the water is needed and the curb and gutters will not be of any service. He would like to ensure that any water to the east is going into the retention area.
Mr. Lane asked if the intended use of the site is for commercial uses and if it would be high volume.
Mr. Werner said that the current plans are for a tattoo shop which is covered under personal services in CS zoning as an allowed use. He said it would be a low volume business.
Mr. Goans asked if there is any concern, due to difference in driveway elevations, that water will flow to the south.
Mr. Werner replied that the area is very flat. He proposes to lower the driveway as much as possible, approximately a 1% slope, and to create a high point to the east which will direct water back.
PUBLIC HEARING
Douglas May, 1915 New Hampshire, submitted a letter to the Board and read the contents of the letter. Mr. May expressed concerns about the new site plan for the property and said that the site plan does not meet minimum code requirements. He said he does not feel it is fair to existing neighbors to have parking in the backyard. He suggested putting the parking in the front of the property as has been done further down on 19th Street. Mr. May stated that, at a minimum, there should be a type 2 buffer yard provided. Mr. May commented that this is a unique property that while zoned commercial, has never been used as a commercial property. He said this will adversely affect the rights of adjacent property owners. He stated the buyers purchased the property with the existing code in effect and are now asking for a variance. He said there are a number of other properties currently for sale that could be used for this business and the buyers want to convert a property that is currently residential. Mr. May is concerned about drainage as the property is flat and the solutions to the water issues have not been worked out in detail.
Catherine Schwoerer, 1925 New Hampshire, submitted a letter to the Board and read the contents of the letter. Ms. Schwoerer said she has difficulty finding rationale for granting variances and does not feel this qualifies as unnecessary hardship as the new owners purchased the property after the new code was in effect. Ms. Schwoerer cited concerns with a buffer zone, drainage, the reduction of trees in the neighborhood and the dismissal of curbs and gutters to direct drainage to Massachusetts. She said the area is flat already and adding more paving in the back yard will only hurt other neighbors.
APPLICANT CLOSING COMMENTS
Mr. Werner agreed that the process can be frustrating for property owners and said that Mr. May should have received a letter from his office regarding the site plan. He said a buffer yard variance is granted by the Planning Director, not the Board of Zoning Appeals. CS zoning allows 18 uses and the Planning staff has attempted to be more definitive in the new code. Mr. Werner said the applicants purchased the property due to the commercial zoning with the intent of using it in that capacity. He said it would not be possible to place the parking in the front as backing out onto Massachusetts Street would not be feasible. Mr. Werner stated that it would be in the neighbors’ best interest to site plan the project. If properties are not site planned, subsequent property owners can build to higher elevations creating runoff issues. The best situation is to site plan the property to prove where the grades are, get the water slowed down and in an appropriate area.
BOARD DISCUSSION
Ms. Schwoerer questioned whether the buffer zone is part of the variance application.
Mr. Patterson clarified that buffer zones are a requirement of the current code, 20-1007, in the alternative compliance section and will be part of the site plan review. The decision will be made as part of the site plan submittal and any decisions can be appealed to the Board of Zoning Appeals.
Mr. Lane stated the buffer zone is a site planning issue that is considered by the Planning Department, not the BZA. He said the variances before the Board are strictly pertaining to the driveway and curbs and gutters.
Mr. Carpenter recused himself from this item due to conflict of interest.
Mr. Lane asked for verification that the notification processes have been followed for this variance.
Mr. Patterson stated that the notification guidelines have been followed. The legal notice of the variance application appeared in the paper and the list from the County Clerk’s office was sent per proper procedures.
Ms. Blaufuss requested clarification on the site plan process; she asked if it is common for applicants to submit variances prior to site planning.
Mr. Patterson said site plans and variances are frequently submitted concurrently. The site plan is considered and reviewed based upon the outcome of the variance request.
Ms. Blaufuss asked if neighbors receive copies of the application as part of the notification process.
Mr. Patterson answered that the application does not go out with the notification but applications are available to the public upon request.
Mr. Emerson asked if the buffer will be required.
Mr. Patterson said the buffer yard is a requirement between different zoning districts. For alternative compliance, the same intensity or greater is required for screening purposes and will be reviewed by the Planning Director.
Ms. Blaufuss questioned whether the applicant could tear down the existing structure and build something else to comply with the 24 foot driveway requirement.
Mr. Patterson stated they would have setback and screening requirement issues.
Ms. Blaufuss referenced a driveway variance granted to the property to the north and asked when it was granted.
Mr. Patterson replied that it pertained to the width of the driveway as well as curbs and gutters and was granted in 2001.
Mr. Goans stated the property has been used for the last 40 yeas as originally designed and intended, not as zoned.
Mr. Emerson asked the point of legal non-conforming use and what the applicant’s rights are as it was zoned commercial before they purchased the property.
Mr. Goans said the preference would be to have the property rezoned as RS7 which could be done without a great deal of effort. He stated the property was legally purchased as a commercial property and the existing conditions are what are driving the variance. He said he would prefer to address the curb and gutter issue differently but the driveway is a preexisting condition. Mr. Goans stated he would prefer to have the curbs and gutters installed unless proven detrimental to the property.
Mr. Bowman suggested conditioning the variance to ensure the burden of proof that not installing curbs and gutters will not harm the property is met by the applicants.
Mr. Lane asked if the condition could be constructed allowing for the stormwater engineer to review whether the curb and gutters would be beneficial or detrimental to the property and surrounding properties.
Mr. Patterson said that Matt Bond will need to review the matter in more detail.
Mr. Bowman stated that a licensed engineer will have to certify that the lack of curbs and gutters will not be detrimental to the property then it will need to be approved or disproved by the City Engineer.
Ms. von Tersch said that it does not follow that if a property is zoned commercial that it can be developed into a commercial use. She thinks the owners are assuming they can get the variances needed to proceed with development and believes that someone buying commercial property should know the use rather than assuming a variance will be granted.
Mr. Werner commented that the site plan cannot go to Matt Bond without the variance being approved first. He suggested a more stringent condition along the lines of “curb and gutters should be required unless Matt Bond decides it would be detrimental to the property.”
Mr. Goans responded to Ms. von Tersch and said that when property is purchased and zoned commercial, the buyer should have the option to use the property as it is zoned.
ACTION TAKEN
Moved by Mr. Goans, seconded by Mr. Bowman, approval of the variance from Section 20-913(f)1 to reduce the two-way driveway access aisle width to 12’ and approval of the variance from Section 20-913(i) with a condition that the required curbs and gutters to city standards will be required unless the Stormwater Engineer determines that having curbs and gutters is detrimental to the property and adjacent property.
Motion carried 5-1-1 with Ms. von Tersch in opposition and Mr. Carpenter abstaining.
BZA Minutes 12/7/06
ITEM NO. 6: MISCELLANEOUS
a) 2007 Board meeting dates and application deadline schedule.
ACTION TAKEN
Moved by Mr. Lane, seconded by Mr. Carpenter, to approve the 2007 BZA schedule as presented.
Motion carried unanimously, 7-0.
b) Consider any other business to come before the Board.
Meeting adjourned 8:40 p.m.