PC Minutes 6/25/08 DRAFT
ITEM NO. 13 A TO IG; 155 ACRES; I70/K10 BUSINESS PARK (SLD)
Z-04-09-08: A request to rezone approximately 155 acres from A to IG. The property is located on the NW Corner of N 1800 Rd & E 900 Rd; I70/K10 Business Park. Submitted by Steven Schwada, agent for Stonewall Farms LLC; JDS Kansas LC; Pert LC; Penny J Tuckel; Axrom LLC; Venture Realty Corporation; Arco Sales Corporation; Venture Properties Inc; Industrial Square Corp; JDSS Limited Company; Radol LC; Tuckel Russell L JR; Northland Ventures LC; and Oread LC, property owners of record.
STAFF PRESENTATION
Ms. Sandra Day presented the item.
APPLICANT HEARING
Ms. Jane Eldredge, Barber Emerson, commented on the 3 conditions on the staff report. She went over the letter that she wrote that was included in the Planning Commission online packet. The property owner has agreed to exclude the uses of a truck stop, slaughterhouse, explosive storage, and salvage yard.
Commissioner Rasmussen stated that in the staff report (page 13-9) it refers to findings made by Planning Commission in December 17th regarding traffic leaving the property will head south to K-10 & I-70. He questioned how the property owners would ensure that happens.
Ms. Eldredge said that the property owners cannot ensure which way traffic will go. The owners however do know that the land has access to I-70. The most likely use of the property would be warehouse distribution. She stated that there will be no access to the county roads and that the primary arterial road would be the Farmer’s Turnpike.
Commissioner Rasmussen asked how long the process would take to retire the lagoon.
Ms. Eldredge stated that the City development policy provides that utilities may be extended when a property owner requests and pays for those utilities. She said that typically those utilities are extended as the City grows and there are a number of property owners who are interested in paying for those utilities. As part of the annexation ordinance the site would use rural water and onsite sewer management services, and that those are permitted as long as they are sufficient to serve the uses that are there. Ms. Eldredge said she did not know how long the process would take to retire the lagoon and that it would depend on when City services would be available.
Commissioner Rasmussen inquired about limiting the uses to non-polluting and non-objectionable uses, as mentioned in the staff report. He wondered what the property owner considered to be non-polluting and non-objectionable uses and asked if the four uses Ms. Eldredge stated earlier would be excluded.
Ms. Eldredge replied yes, the four uses would be excluded.
Commissioner Dominguez inquired about buffering. He asked if she felt that the existing residences were large enough pieces of land that there was enough buffering.
Ms. Eldredge replied, no. Instead of applying County regulations she asked that City regulations be applied because they are greater in terms of setbacks and buffering requirements. County setbacks are 25’ versus City 50’ setbacks and the City has bufferyard requirements as well.
Commissioner Carter asked if the developers responsibility was a 25’ setback.
Mr. McCullough said that the Code offers developers choices for bufferyards. Sometimes infill developments do not have a lot of room. The higher density landscaping and/or screen walls or berms are required if there is not room for a wider bufferyard. A berm or fence would not be required for the wider buffer but landscaping would need to be provided. The less landscaping there is the wider the bufferyard.
Commissioner Dominguez asked if a wider buffer was wanted.
Mr. McCullough said not necessarily, it was whatever the developer chose.
Ms. Eldredge showed on the overhead three choices for bufferyards. She said the bufferyard would provide screening that was intended to protect one abrupt use from another. She felt that zoning should apply uniformly to every part of the city that the zoning designation occurs.
Commissioner Hird asked if the property owner was voluntarily subjecting the property to City buffering requirements as opposed to County buffering requirements.
Ms. Eldredge replied yes.
Commissioner Finkeldei suggested using the word ‘simultaneously’ instead of ‘prior to’ in condition 1 of the staff report.
Mr. McCullough said that staff did not oppose Ms. Eldredge’s changes to conditions 1 and 2 in the staff report but staff did not agree with the change to condition 3.
PUBLIC HEARING
Ms. Kim Richter, felt that the property should not be zoned IG because the property is next to residential properties. She felt that the area was a minor gateway to Lawrence but a major gateway to Lecompton. She felt that IBP or IL would be a more appropriate zoning district. She was concerned that property value would go down on residences located next to heavy industrial. She did not feel that buffering would mask any kind of development on the land. She felt that the only way to control aesthetics was to zone it properly.
Ms. Gwen Klingenberg, Lawrence Association of Neighborhoods, felt that the IG zoning was inappropriate. She stated that the zoning could be IL and still allow warehouses and that zoning districts IL or PD would be better suited to what exists. She said that conventional zoning could not be conditioned, referring to the four excluded uses that Ms. Eldredge discussed earlier. She said that if a court case comes up in which a conditioned conventional zoning was challenged and found to be invalid, every single approved conditioned conventional zoning would lose its conditioning. She went on to say that a new owner or present owner could restart the process and not have to go through the rezoning process if the approval expires. The conditioned uses would be gone but the zoning would still be there without the conditions. She felt that IL or IBP zoning districts would be more appropriate. She stated that the City spent a lot of money to improve the East Lawrence gateway. She felt that the applicant should comply with City Codes now that the property is annexed into the city.
Ms. Sarina Farb, daughter of nearby property owners, expressed concerns about buffering that would protect properties farther away from pollution. She was concerned that the owners might not honor their word of not allowing the four uses discussed by Ms. Eldredge.
Ms. Day said that buffering is not intended to 100% screen from view a particular use. It is intended to provide a barrier to capture some of the sound and screening of vehicle lights. Staff cannot ask that there be a 10’ wall built around the development. Some existing vegetation would most likely be retained, a series of street trees as well as other landscaping could be placed on the property. The setback of the building continues to be measured from the property line and would most likely be located to the centers of the property with the parking lots oriented in a way to have the easiest access out of the property and to the transportation network. She stated that when staff looks at buffering they try to make sure it is applicable to the district. There are a number of locations in the community where there are additional standards or overlays such as floodplain regulations, extraordinary setbacks along portions of 6th Street and portions of South Lawrence Trafficway, so it is not an unusual requirement. She said that staff does work hard to work with the Codes addressing extraordinary setbacks and extraordinary buffers. The typical practice has been to deal with the immediate properties and layer the uses as you move outward to help retain the integrity of the neighborhood and to continue to buffer those less intensive activities. She said that the Development Code does have the ability to restrict land use in conventional zoning districts, not just for Planned Developments and the land use restrictions would typically become part of the zoning ordinance. The Planning Department would have to work with internal mapping systems to recognize the land use restrictions but in pre-submittal meetings with developers Planners could identify the restricted uses at that location.
Commissioner Finkeldei asked if the use restrictions would be included with the land.
Ms. Day replied yes, unless it was rezoned.
Mr. Ron Schneider, attorney representing Scenic Riverway Community Association, asked for a continuance of the item in order to receive additional information. He said that the neighbors have been inundated for months with meetings on the subject. He said that at the County Commission meeting a month ago there were over 30 people in opposition. He stated that his clients are opposed to the annexation and rezoning of the property to industrial development. He stated that IG zoning was too heavy of industrial zoning for the area. He understood that some form of warehouse activity was expected at the site so he suggested a less intensive zoning of IBP could be used instead. He felt that IBP zoning was a better compromise and felt that IG zoning was incompatible with the surrounding residential area. He said that if the applicant expects some form of warehouse to be built at that location then the zoning of IBP should be the compromise. He also stated that the IG zoning states ‘the district is generally incompatible with residential areas in low intensity commercial areas.’ He expressed concerns about noise, pollution, toxic fumes, and vibrations associated with industrial sites. He felt that the neighborhood wishes and concerns should be given serious consideration.
Ms. Marguerite Ermeling discussed buffering and felt that it would be impossible to obstruct the view from neighbors. She felt that there were better places to put IG zoning. She said that the Santa Fe area was a well identified industrial space and felt that industrial projects should be continued west from that existing industrial area. She felt that IBP zoning would be a better alternative and might be an appropriate compromise. She felt that the applicant had not worked with the neighbors and others in opposition to the project as much as they could have.
Mr. Joe Farb, lives about 1 mile north of proposed project, was opposed to the IG rezoning and felt that the property owners have not been listened to. He felt that a compromise of lesser intense industrial zoning could be reached.
Ms. Beth Johnson, Chamber of Commerce, read a statement she found through the International Economic Development Group that said ‘the main goal of economic development is improving the economic wellbeing of a community through efforts that entail job creation, job retention, tax base enhancements, and quality of life.’ She said that the Chamber has heard repeatedly from elected officials that Lawrence has to grow the tax base and be able to change the tax base so that it takes a little of the reliance off of the residential tax payers and puts a little more reliance on industrial taxes. She said that Steve Brown from Berry Plastics spoke at City Commission about how there are companies in Lawrence that have growth potential but no room to expand. She stated that there are industrial areas in the city, such as East Hills Business Park and Franklin Business Park but that both of those are on K-10. There is only one property on I-70, nothing at the Airport of substance, nothing in Santa Fe Business Park, and only a 28 acre site in Riverside Business Park. She stated that more industrial sites are needed for Lawrence and that business is lost to other cities who do have industrial sites. She felt that the I-70/K-10 intersection was a perfect location for industrial. She understood the neighborhood concerns about what the industrial site would look like. She said there was an open lot across the street from where she lives and that she was concerned about what the house would look like. She said there were no guarantees of what proposed structures will look like. She said that one guarantee would be that since the land would be annexed into the City it would fall under City Codes. She said that one of the things that the Industrial Committee has been working on is to put restrictions and covenants on what that development would look like without being prohibitive. She said that there are a lot of building materials out there that are not ugly. She said that she researched jobs and according to the 2000 Census that 47.7% of residents 25 years of age and older have a bachelor degree which means that there are 53.2% of residents that do not have one. She said that meant that jobs were needed across the scale. She said that the only way to get those jobs was to bring industrial land into the inventory of marketing for companies that are interested in Lawrence.
Commissioner Harris asked how the square footage of the distribution center compare to the IBP square footage.
Ms. Johnson stated that the distribution center was 400,000 square feet and the manufacturing office was 20,000 square feet at most.
Ms. Jo Ann Farb, lives about 1 mile north of proposed site, was opposed to the IG zoning. She did not think that any of what Ms. Johnson said necessitated that the property be zoned IG. She was a little offended by the comparison of concerns that Ms. Johnson mentioned of having to deal with a house being built across the street from her. She said that 53.2% of people not having bachelor degree might include children and elderly people. She felt that taxes would not go down by this industrial development and also felt that the development would have hidden costs. She also expressed concern that the whole project might not go forward due to the downfall in the market and the tax payers might get stuck with the costs incurred by it. She felt that the area should be zoned IBP, not IG.
Ms. Johnson said that the 53.2% figure included retirees, but did not include people under 25 years of age.
Mr. Dave Ross, President of Scenic Riverway Community Association, felt that the zoning should be IBP, not IG. He felt there was a need for higher quality jobs and he would like to see something built that was high quality and benefit everyone. He did not like the uncertainty of what would be built there. He also felt that screening with berms was a better option than trees.
Mr. Stan Unruh, was concerned about buffers to the east of the property.
Ms. Day said the conventional buffer would apply.
APPLICANT CLOSING COMMENTS
Ms. Eldredge, said that the applicant has been responsive in meeting with the neighbors and that they held a meeting where only four neighbors attended. She felt that it was a positive meeting and that she did not see any of the neighbors tonight at Planning Commission. Mr. Schneider said he did not want any of his clients meeting with her and she asked who his clients were and he was unsure so during her meeting with neighbors she announced that if any of them were Mr. Schneider’s client that they needed to leave. She asked Planning Commission take out the emotional aspect of the project. She agreed it was an incompatible use with residential but one of the ways to deal with that was to use bufferyards that are intended to mitigate incompatible land uses. She said that the bufferyards are meant to buffer adjacent property owners, not property owners that live a mile away. She stated that the IG zoning is in conformance and that the character of the neighborhood is agricultural. She said the property was suitable for industrial zoning and that it provides an opportunity for the community. She said the goal was not to build the ugliest thing possible at this location. The goal of the community is to increase jobs, which cannot be done without industrial sites.
Commissioner Rasmussen inquired why there were only four uses that would not be allowed at the site.
Ms. Eldredge said that the four uses were of concern to neighbors. She said that because of the location it would need to be available for multiple uses. The more restrictive the property is the less likely businesses will locate to the site. She felt that the four uses were reasonable to exclude.
COMMISSION DISCUSSION
Commissioner Harris asked if it was proper procedure to consider draft documents like the draft sector plan and the draft industrial chapter in their decision or should they stick with the approved plans.
Mr. McCullough said that it was appropriate given the context. He gave the example of the request of the revised Southern Development Plan for The Exchange to have the draft plan support that use. The Commission used that draft plan for supporting that project. He said that was a fact that they had to weigh individually in terms of whether or not the recent planning efforts were far enough along to make that a factor.
Commissioner Moore asked if there were more uses on the list and wondered what businesses such as Amarr Garage or Berry Plastics would be considered.
Ms. Day said that Berry Plastics would likely fall into the manufacturing use and the warehouse distribution piece could fall into the IBP, IL, or IG zoning districts. Martin Logan, Impact Worldwide, Microtech were uses that fell into the manufacturing production technical category and would be allowed in the IBP, IL, or IG zoning districts.
Commissioner Carter was concerned about IBP versus IG zoning. He felt that prospective employers may not want to come to Lawrence not knowing what use could be at that location.
Commissioner Blaser felt they should look at IG zoning for the site. He said that the concerns brought up by neighbors regarding toxic fumes, noise, dust, vibrations, are mostly controlled by federal laws.
Commissioner Harris did not agree that the Planning Commission role did not include considering the effect on the neighbors in the area. She felt that their job was to decide if the uses were appropriate for the site and if it fits within the context of plans for the entire community. The neighbors have asked for IBP instead of IG and she liked that idea if it supports the City’s bigger goals. It might do that by bringing the employment that the City wants and might bring a better tax base. She was in favor of delaying the item since there was no sector plan in place yet. She felt that if the item was not delayed then they should go for IBP zoning that would serve the community the best and allow the developer to accomplish what they want. She also liked the idea of the developer meeting with the community to reach a compromise.
Commissioner Rasmussen said that he personally would not want an industrial site next to his home but if he were the property owner of the site it would makes sense to put an industrial use at this site. He said the staff report says the developer would put a covenant on the plan to restrict four types of uses. He said he could think of many more uses than four but he also understood the developer wants the most flexibility. He felt it was a good and appropriate location for industrial use.
Commissioner Hird said he lives in the country so he can sympathize with the neighbors because he would not want an industrial site next to his home either but the problem for the Planning Commission was that they have to consider the community as a whole. There was not a decision that will please everyone entirely. Based upon the access to I-70 there is no better place to put an industrial site. As difficult as it is in the face of sincere land owners, he felt they should stick by their previous decision in December. He hoped that the neighbors would participate in the specific development. He felt that doubling the buffering would not hide anything. He felt it was bad policy to start singling out sectors and applying unequal treatment. He appreciated the applicant voluntarily doing City buffering instead of County buffering. He was encouraged that the four uses specified would be prohibited. The accessibility of the site lends itself to industrial development.
Commissioner Dominguez said he wanted to do what was best for Douglas County and the Planning Commission’s job was land use. He said the site area was a gateway to Lecompton and he understood the concerns of Lecompton. He said the property owner had the right to develop the land. He felt that IBP zoning might be a compromise.
Commissioner Blaser said he would vote for the IG zoning.
Commissioner Carter agreed with Commissioner Hird.
Commissioner Finkeldei said the tough part of serving on Planning Commission were the extremes of items. He said that if the question was if they want jobs in the community the answer was yes, if the question was if a property owner wanted industrial next to their $350,000 house the answer was no. He said that if they could get a nice employer to bring 300 jobs to the community the neighbors would not be happy and the Chamber of Commerce would not be happy with only 300 jobs. He said that he always listens to every speakers concerns even if he does not agree with the concerns. He thought there should be some sort of balance of the extremes. He felt that the location was perfect for industrial use and best for the community as a whole.
Commissioner Moore said he watched City Commission last Tuesday where Steve Brown from Berry Plastics spoke about the need for more industrial space.
ACTION TAKEN
Motioned by Commissioner Hird, seconded by Commissioner Carter, to approve the request to rezone approximately 154.9 acres, from A (Agricultural) to IG (General Industrial) based on the findings presented in the staff report and forwarding it to the City Commission with a recommendation for approval, subject to the following conditions:
Mr. McCullough clarified that the applicant would not be voluntarily doing City buffering because the site would be annexed into the City so they would then be under the Land Development Code of the City and would be required to meet the bufferyard standards. With the straight zoning of IG any Site Planning will be administratively performed.
Commissioner Harris said she would vote in opposition because she felt it was premature and that she did not know what gateway meant. She was also not convinced that they needed as heavy industrial use as IG. She felt that it could be limited by zoning to less than IG.
Commissioner Dominguez asked if there was a statute that would stand up for these considerations for the four restricted uses and the land is sold.
Mr. John Miller said the issue of conditional zoning was not a concept that has been challenged in Kansas courts. There was no current case law on the validity of conditional zoning. The City Land Development Code does allow for both the review body and decision making body to condition the zoning of property. He felt that was statutorily allowable. The Development Code would pass legal muster if it were to be challenged. There is an unknown element to that. He said that conditional zoning is a common practice in other communities in Kansas and has not been challenged.
Motion carried 6-2, with Commissioners Harris and Dominguez voting in opposition. (Commissioner Chaney left the meeting after Item 12.)