PC Minutes 12/14/09 DRAFT

ITEM NO. 1A      UR TO COMMERCIAL; 29 ACRES; NE CORNER OF K-10 & W 6TH (MKM)

Z-10-17-09: Consider a request to rezone approximately 24 acres from UR (RO-1A/RMO pending) to Commercial (CC-400), for the Mercato project located at the NE corner of K-10 & West 6^th Street (Hwy 40). Submitted by JDS Kansas, L.C.; Kentucky Place, L.C.; Tanglewood, L.C.; Oread, L.C; Hanover Place, L.C.; Venture Properties, Inc.; TAT Land Holding Company, L.C.; Scotsdale Properties, L.C.; Sojac Land Company, L.C.; K-10/40 Development, L.C., property owners of record.

ITEM NO. 1B      PRELIMINARY PLAT FOR MERCATO; 29 ACRES; NE CORNER OF K-10 & W 6TH (MKM)

PP-10-5-09: Consider a four lot commercial and residential office Preliminary Plat on approximately 29 acres and variance to permit block length of greater than 800 ft for the Mercato project located at the NE corner of K-10 & West 6^th Street (Hwy 40). Submitted by JDS Kansas, L.C.; Kentucky Place, L.C.; Tanglewood, L.C.; Oread, L.C.; Hanover Place, L.C.; Venture Properties, Inc.; TAT Land Holding Company, L.C.; Scotsdale Properties, L.C.; Sojac Land Company, L.C; K-10/40 Development, L.C., property owners of record.

STAFF PRESENTATION

Ex parte: All commissioners had conversations with Ms. Jane Eldredge.

Ms. Mary Miller presented items 1A and 1B together.

Commissioner Harris inquired about the right-in/right-out access onto W. 6^th Street.

Mr. Shoeb Uddin, City Traffic Engineer, said the right-in/right-out access will function as a free flow right turn, meaning that there will be a fully developed deceleration lane, so if a car is going west it will be pulled into the right turn lane and off the main true traffic. The concept of free flow right turn is that there will not be a queue, it will move continuously, the traffic will not encounter any kind of traffic control such as a signal or stop sign. He said when cars are leaving there may be queue build up but that the build up will be onsite and will not affect the traffic on 6^th Street.

Ms. Amy Brown was present to address the retail market aspect of this application. She discussed a correspondence that was received by Kirk McClure after the communication deadline. She wanted to clear up a discrepancy in his letter. His letter asserted that the retail sales are only growing by .22% annually. She said that statement was true. She said the market study submitted said that growth was 1.8% and that was a cumulative total from 2000-2008, it was not an annual figure. She stated that in his analysis based on vacancy rate, the study he is referring to in 2007 was produced Mr. McClure, not by the city and the city does not have access to that data. She said she could not speak to how that data was analyzed or what assumptions were used in the market study. What staff based the last city wide vacancy rate was the 2006 study that the city produced and it was cited in the staff report.

Commissioner Harris said the main gist of Mr. McClure’s letter was that this is not the time to add a large development like this to the retail mix because it could endanger downtown and some other places. She asked Ms. Brown to speak about that.

Ms. Brown said that what staff looks at is based on the Development Code and Comprehensive Plan. The Development Code spells out certain things the applicant has to provide in a market study. The applicant has to provide information (demand factors) based on how income has grown over the last however many years, how the population has grown, and how retail sales have grown. There also has to be analysis based on supply factors such as square footage, how much retail stock is added to the market over that same period of time. She stated that in general those things should be in somewhat balance of each other. Outside of that the Development Code spells out some analysis that needs to be done based on the type of uses and their impact on downtown and the rest of the Lawrence market. There was analysis based on that in the market study the applicant provided. The applicant is proposing specific uses such as home improvement center, discount department store, convenience store, and fast food restaurant. She said with the small amount of square footage for the convenience store and fast food restaurant, the impact on downtown is negligible. The home improvement store being 175,000 square feet there is nothing comparable to it downtown. She said there really will not be an impact on downtown. The difficulty with the discount department store is that in retail terms that is a broad category, it can include anything from Wal-Mart or K-Mart to Kohls or JCPenney. There really isn’t a category of a business like that currently downtown today.

Commissioner Harris asked how tied the developers are to those uses through the actions of Planning Commission.

Mr. McCullough said that was a question for the applicant.

APPLICANT PRESENTATION

Ms. Jane Eldredge, attorney representing applicant. Said stated during her ex parte communications with the Commissioners she did not speak about the rezoning, only the plat. With regard to the rezoning, in her opinion, the retail market study is based on the intentions of the developer and the developer has to come back with a site plan which will look at those uses, but the zoning category is not limited to just those uses. The zoning category would be broad enough for different uses but nothing will be built without a tenant. The uses that have been proposed so far are the ones that are anticipated to become tenants.

Commissioner Harris asked if the retail study would come back into play at the site planning stage.

Ms. Eldredge said that would be up to staff because staff would be looking at the site plan and if there is something in there that is quite different than what was proposed she would anticipate staff would want to look at it.

Mr. McCullough said that staff does have the ability to review a revised retail study at the site planning stage.

Ms. Elrdedge requested the rezoning be approved and the plat be approved with one minor change to the staff recommended condition #7. She felt the ordinance needed to be changed. She felt that it should be handled separately from the plat by City Commission. She did not feel there was any reason to tie the ordinance to the plat. She discussed access points and referred to the staff report.

She stated that when the earlier commercial rezoning for Mercato was before Planning Commission the developers agreed to close the access point at the frontage road when George Williams Way and Overland Drive were completed. She agreed the frontage road needs to be closed because it is too close to the K-10 ramp but by moving to a right-in/right-out at this peak location it has not changed/altered the number of access points as they were originally approved in 2000. She said that meeting the fire code requirements which are very important for a large commercial area.

Commissioner Dominguez inquired about the fire code and asked why staff overlooked a fire regulation.

Mr. McCullough said staff did not overlook the fire code, what happened was at the time the section 16-1201 of the City Code that placed the restriction for W 6^th Street was adopted and made city law the fire code was a former code. In 2008 the fire code changed that requires more access to commercial properties. During the review process the Fire Department said the applicant needed to address it somehow. There are different ways to address it in staff’s opinion. Gaining access from 6^th Street is one of the ways to address the fire code.

Mr. Phil Struble, Landplan Engineering, was present for questioning. The way he understands it is the new fire code says there needs to be access to a large commercial development from two arterial streets and the distance between the two access points has to be less than half the diagonal dimension of the development. He also discussed Right-of-Way and easement issues.

Commissioner Hird asked how big the gas line is.

Mr. Struble said it is a 16” gas line.

Commissioner Rasmussen asked if the only staff recommendation that the applicant has a concern with is plat condition #7 in the staff report that says ‘The preliminary plat shall be valid only upon approval of revisions to Section 16-1201 of the City Code by the City Commission.’

Ms. Eldredge said that was correct.

Commissioner Harris inquired about pedestrian access and asked if in the site planning process would pedestrian connections to the development be provided.

Ms. Miller said that was correct, under the commercial design standards it has to have pedestrian and bicycle connections and connectivity is one thing that staff looks at.

PUBLIC HEARING

No public comment.

COMMISSION DISCUSSION

Commissioner Carter asked if there are any conditions that don’t need to be included.

Mr. McCullough said the conditions are recommended to track the project through the process and gives it a timing element. Each step of the way grants additional development rights to the property.

Commissioner Carter inquired about condition #7 on the plat staff report.

Mr. McCullough said staff does not feel the plat meets the city code today as presented because the city code restricts access along this stretch of 6^th Street. Around the year 2000 when access restrictions were adopted in the Code, KDOT and the city agreed to provide themselves access to a frontage road that has very limited access up the frontage road, not to a large commercial property. Staff does not disagree that the traffic impact study supports the right-in/right-out proposed or that the development wouldn’t benefit from a right-in/right-out. Staff is actively speaking with KDOT about this issue. There is a technical challenge because there is a city code that is outside of the development code so that the Planning Commission can grant a variance or waiver to it. It can only be revised by City Commission and staff believes this plat is out of compliance with section 16-1201. Staff provided an avenue to consider the plat and even approve the plat but feels that to comply with city code the code needs to be considered by City Commission. If the code is changed then the plat can become valid. If it’s not changed then there isn’t a valid Preliminary Plat because it doesn’t meet city code.

Commissioner Moore inquired about the process to revise the city code.

Mr. McCullough said it is likely to be heard by City Commission.

Mr. John Miller said City Commission would direct staff to prepare modifications to that section of the code and the language would go back to the governing body for their consideration, then first and second reading, and then published.

Commissioner Hird asked if this has been submitted to City Commission.

Mr. McCullough said no, this has not been presented to City Commission for consideration yet.

Commissioner Hird asked if Planning Commission approves the plat and takes the position that the ordinance doesn’t need to be revised, it isn’t known if there is a conflict with the city in the first place and they might agree with Planning Commissions interpretation. Without knowing if there is a conflict the question is do you hold up this project for 60-90 days.

Mr. Miller said the timeframe to amend that code section can be done in a month.

Commissioner Hird asked what would happen if Planning Commission took the position that the code didn’t have to be amended and approved the project without that condition.

Mr. McCullough said it would approach the City Commission through the acceptance of rights-of-way and easements so they will see this in some form or fashion. There is a difference though in that Planning Commission approves the plat and City Commission accepts rights-of-way and easements. He said the City Manager has made statements to that in any event the City Commission, before additional access is provided on 6^th Street, would have this in front of them in some fashion.

Commissioner Hird whether there are additional access points to grant.

Mr. McCullough said in his opinion it is best characterized by granting an additional access point because he did not think that when the access restrictions were adopted it did not contemplate a CC400 development, it was a frontage road along KDOT highway so when he looks at the record of this and the access management plan it doesn’t point to allowing the frontage road to exist as an access point to a large commercial district.

Mr. Uddin he spoke about the question of if it is an additional access or if is it just moving the existing access to the east. From a functional point of view the way the frontage road would function as an access the right-in/right-out will not function the same way, so as a functional point of view it is an additional access. If you have two accesses that are close together, then the impact of that access to the operational characteristics of the roadway would be insignificant that you could consider that just merely moving the access, as opposed to if they are farther apart because the impact of those two accesses on the operational characteristics would be significantly different and would be considered as an additional access.

Commissioner Hird asked where in the ordinance it talks about accepting the frontage road access, and wouldn’t this access provide access to a frontage road.

Mr. Uddin said what he was trying to address is that the frontage road is fairly close to the K-10 interchange and the understanding was that when the interchange gets signalized and other development happens, road access would probably go away. Even if the access remains, the impact of that access further to the east, closer to George Williams Way, would not be appreciable but the impact of the new right-in/right-out access would be appreciable in that area. Each access has an influence area that influences the operational characteristics of the roadway.

Commissioner Harris asked if they were comparing the original plat that had no access on 6^th Street, because the frontage road access would be removed, to this new idea that there would be a new right-in/right-out access.

Mr. Uddin said the only part that he is trying to address is from a functional operational point of view. If two accesses are farther apart from each other they cannot be considered merely moving one from the other place.

Commissioner Finkeldei asked if Planning Commission will approve the plat.

Mr. McCullough said that was correct.

Commissioner Finkeldei inquired about the different ways to approve the plat.

Mr. McCullough said if the plat is approved with condition 7 and City Commission does revise the code then the plat is valid. If they do not revise the code, in staff’s opinion, it would not be a valid preliminary plat and the applicant would need to revise the plat to show no access along 6^th Street.

Commissioner Dominguez asked if there were both access points would they be designed the same way.

Mr. Uddin said they are different. The right-in/right-out will be much smaller.

Commissioner Rasmussen discussed the code language in section 16-1201. He said that when he read the language it was very specific to the locations of the access points for everything except the frontage road access. If the applicant is already going to have to get a permit from KDOT why can’t it be moved, why does it need to be changed?

Mr. McCullough said that KDOT controls that stretch of the highway today and they have conveyed to staff their intention to restrict access to this and other substantial development along 6^th Street. Mr. McCullough said the reason staff reviews plat applications is to get review comments from all agencies and understand their position and present that to Planning Commission.

Commissioner Rasmussen asked if City Commission does change the code then what would be done.

Mr. McCullough said an access point would be added on 6^th Street.

Ms. Eldredge displayed a map on the overhead of the Northwest Area Plan. She gave the history of the area and said the reason KDOT funded 6^th Street was for economic development.

Commissioner Harris said she was not entirely comfortable approving the plat knowing that there is a finding of fact in the staff report isaying it doesn’t conform to city code. She suggested alternate language for condition 7 ‘the preliminary plat shall be valid upon City Commission action that will allow for access for this development on 6^th Street in accordance of city code’ and if City Commission interprets that it does meet the code then that would meet those previsions.

Commissioner Hird asked if that would really gain anything. He asked what would be the functional difference between that and requiring City Commission to amend the code.

Commissioner Harris said City Commission may have a different interpretation of the staff report.

Mr. McCullough said condition 7 could say that the preliminary plat shall remain valid only upon approval to revisions to section 16-1201 of the city code if determined necessary upon City Commission acceptance of rights-of-way and easements.

Commissioner Hird said there are clearly two different interpretations of the city code. If Planning Commission recommends to strike condition 7 and forward to City Commission with notes in the minutes about this dispute over the interpretation, what is the downside to allow the city to review the ordinance issue when dedicating easements and rights-of-way? The issue gets before the city either way, correct?

Mr. McCullough said yes. If CC has concern over this for any reason they will have the ability to accept or deny the right-of-way for Mercato Lane.

ACTION TAKEN ON ITEM 1A

Motioned by Commissioner Carter, seconded by Commissioner Hird, to approve the rezoning request for approximately 24 acres from UR (Urban Reserve) District to CC400 (Commercial Center) District and forwarding it to the City Commission with a recommendation for approval based on the findings of fact found in the body of the staff report.

          Unanimously approved 8-0. Student Commissioner Shelton voted in favor.

ACTION TAKEN ON ITEM 1B

Motioned by Commissioner Carter, seconded by Commissioner Hird, to approve the Preliminary Plat for Mercato, with the exclusion of condition 7, and forward to City Commission.

1) The preliminary plat shall be revised as follows:

a. The dimension of the western width of right-of-way for Overland Drive shall be noted on the plat.

b. The plat shall be revised to clearly identify the Southern Star easement which is being proposed for vacation.

c. The plat shall show the relocation of the Southern Star gas line to the south rather than extending through the easement which is to be vacated. 

d. The extension of the Southern Star gas line off-site to tie into the existing gas line to the southeast must be approved by Southern Star.

2) Prior to recording the final plat, the applicant shall provide the Planning Office with documentation that right-of-way for Renaissance Drive is available prior to final approval of the plat.

3) Prior to recording the final plat, the applicant shall provide the Planning Office with documentation that Southern Star approves the relocation of the gas line and easement between Lots 1 and 2 of Block Two and the relocation of the off-site gas line to tie into the existing line.

4) Prior to recording the final plat, the applicant shall provide the Planning Office with documentation that Southern Star approves the design of Renaissance Drive in relation to the gas line location.

5) Prior to recording the final plat for the remainder of the Mercato Development (PF-03-04-07), the applicant shall revise the previously approved preliminary plat (PP-01-02-06) and final plat (PF-03-04-07) to reflect the changes approved with this preliminary plat. 

6) Prior to recording the final plat, the applicant shall gain approval of an access permit from the Kansas Department of Transportation to access W. 6^th Street (Hwy 40).

7) The preliminary plat shall be valid only upon approval of revisions to Section 16-1201 of the City Code by the City Commission.

8) Prior to recording the final plat, the rezoning request [Z-10-17-09] from UR (RMO pending) to CC400 District shall be adopted and published.

Commissioner Harris said she could not vote in favor of this because she felt it was their duty to follow the code.

Commissioner Carter agreed with Commissioner Harris but proposed the motion because he disagreed with staff interpretation that it is an additional access versus moving it so he felt it did meet the code.

Commissioner Hird commended staff and appreciates the difference in the function in moving the access point. He felt there were two possible interpretations of the code therefore he can’t conclude approving this would be a violation.

Commissioner Rasmussen appreciated the information from staff. He expressed concern about the information that suggested approval of this could have a large financial impact upon the city. He said the plat is still conditioned upon getting an access permit from KDOT. He thought the applicant could be better off if the code was changed because it could give the city more weight with KDOT in getting it changed. He said he will vote in favor of the motion and does not believe the vote will necessarily result in any type of cost implication for the city.

Commissioner Finkeldei agreed with what has been said. He did not see that this is in violation of the ordinance. He thought this was a huge policy issue for the city and wants to give them the most flexibility so he supports the motion.

Commissioner Singleton concerned about the finding that this plat would then not be in compliance with code. She felt there was a way to rewrite condition 7 and not exclude it.

Commissioner Dominguez said he would support the motion and felt that the International Fire Code is important for public safety and needs to looked into quickly.

Commissioner Moore said he would vote in favor of it. He agreed with many of the comments made.

Motion carried 6-2, with Commissioners Harris and Singleton voting in opposition. Student Commissioner Shelton voted in favor.