BOARD OF ZONING APPEALS
Meeting Minutes of February 3, 2011 –6:30 p.m.
______________________________________________________________________
Members present: Kimball, Carpenter, Mahoney, Lowe, Christie, von Tersch
Staff present: Guntert, McCullough, Parker
ITEM NO. 1 COMMUNICATIONS
von Tersch stated she had received a phone call regarding 1740 Massachusetts street.
There were no agenda items deferred.
ITEM NO. 2 MINUTES
Motioned by Christie, seconded by Kimball, to approve the January 6, 2011 Board of Zoning Appeals minutes.
Motion carried, 4-0-2 Lowe and Mahoney abstained
BEGIN PUBLIC HEARING:
ITEM NO. 3 DILLONS STORE; 1740 MASSACHUSETTS STREET [DRG]
The Board of Zoning Appeals deferred the two variances described below at the conclusion of the public hearing during their January 6, 2011 meeting.
B-12-13-10: A request for variances as provided in Section 20-1309 of the Land Development Code of the City of Lawrence, Kansas, 2009 edition. The first request is for a variance to reduce the 25 feet front and rear yard building setbacks on Massachusetts Street and New Hampshire Street respectively, as required in Section 20-601(b) of the City Code to a minimum of 0 feet. The second request is for a reduction in the number of off-street parking spaces for the new grocery store from the required 150 parking spaces per Section 20-920 of the City Code, to a minimum of 129 parking spaces. These variances are being requested to help facilitate the redevelopment of an existing commercial center with a new urban grocery store located at 1740 Massachusetts Street. Submitted by Mike Boehm for the Dillons Companies, Inc., the property owner of record. The legal description for the property in the appeal and the case file for the public hearing item are available in the Planning Office for review during regular office hours, 8-5 Monday - Friday.
STAFF PRESENTATION
Mr. Guntert presented the item. He said a stake holder meeting was held January 28th and changes to the plan included a shift of the structure five feet to the north. He said the applicant reduced the building footprint and added speed humps at the store entry. Mr. Guntert stated the pharmacy drive thru would have a single access from New Hampshire street and removable bollards would be added to the access point near New Hampshire street. Mr. Guntert stated the applicant provided more detailed parking generation data which indicated the need for 118 parking spaces.
Lowe asked Staff to explain the removable bollards.
Mr. Guntert stated the bollards would be made of iron posts sunk into a pit in the pavement.
Lowe stated with the bollards in place the entrance would be a one-way entry.
APPLICANT PRESENTATION
Brian Fulmer, Dillon’s Company, thanked the Board, City Staff, and neighborhood groups. He said the latest site plan shifted the structure five feet to the north and the crosswalk would be twenty feet wide and would be raised. Mr. Fulmer stated the drive through exit would lead into the parking lot rather than New Hampshire street. He said Kroger Company was committed to helping not hindering the traffic in the neighborhood and Kroger Company agreed to make a donation to traffic calming devices on New Hampshire street. He said delivery trucks would complete deliveries by noon each day.
Ms. Martin displayed photos of the project. She stated On the Rocks Liquor Store sign would be seen sooner than previously proposed.
Christie asked Ms. Martin to explain the distance of the building from the sidewalk.
Ms. Martin stated the width of the sidewalk was twenty four feet from the base of the curb.
Mr. Fulmer stated the existing parking count was 149 spaces. He said the proposal was to reduce the parking spaces to 129.
Christie asked if a parking study had been conducted. He stated he recently drove to Dillon’s grocery twice at 5:15pm and there was not one empty parking space. He said it would be very easy for Dillon’s customers to spill over into On the Rocks Liquor Store parking lot. Christie asked what recourse the liquor store would have if the spillover occurred.
Mr. Fulmer said On the Rocks Liquor Store could install signs in their parking lot designating the lot as customers only. He stated the current parking lot was inefficient.
Christie asked Mr. Fulmer how the structure would be moved five feet north without impacting the number of parking spaces.
Ms. Martin stated a few parking spots were made smaller for compact cars and the landscape would be smaller.
Christie asked if the plans included landscape on the east side of the structure.
Ms. Martin stated landscape was part of the site plan review.
PUBLIC COMMENT
Tom Kern stated Dillon’s Company was a member of the Chamber of Commerce and they employ over four hundred people. Mr. Kern stated the store at 1740 Massachusetts street currently had twenty seven full time and fifty part time employees. He stated the new store would generate an additional forty to fifty new jobs. Mr. Kern stated the project would generate higher property taxes paid by Dillon’s Company and would create construction jobs.
Bob Gent stated he was part of the neighborhood team that worked with Dillon’s Company and he was not certain the concerns of the citizens had been well addressed. He stated the request for a variance was dependent on how the new store would affect the neighbors.
Mahoney asked Mr. Gent what neighborhood concerns remained.
Mr. Gent stated the neighbors were concerned with truck traffic and if the bigger trucks would adversely affect the neighbors. He stated the trucks had driven in the lawn across the street on New Hampshire street and broken down the curbs in the area.
Christie asked Mr. Gent if it had been brought to the attention of Dillon’s Company regarding the trucks driving on neighbors lawns.
Mr. Gent stated Dillon’s Company had been contacted regarding the damaged easement and after some time it had been repaired.
Jason Yuhasz stated he was an owner of On the Rocks Liquor Store building. He said the new Dillon’s grocery store would create more business yet Dillon’s wanted to reduce the amount of parking spaces. He said Dillon’s customers would use On the Rocks Liquor Store parking lot and walk the entire frontage of the building to get to the entrance of the grocery store. Mr. Yuhasz stated customers would not walk to and from the grocery store and the forty to fifty new employees would also need parking spots. He stated Dillon’s delivery trucks would use On the Rocks Liquor Store parking lot and tear up the turnabout.
Jennie Storm, On the Rocks Liquor Store, stated she wanted the Dillon’s Company to build a new store. She asked who would be in charge of the bollards. She stated there would be full tractor trailers using On the Rocks Liquor Store parking lot and she asked what recourse she would have if Dillon’s trucks used her parking lot. She said the trucks would not turn left onto Massachusetts street and they would use On the Rocks Liquor Store parking to drive to New Hampshire street. Ms. Storm said the medians and the lights would be torn up by Dillon’s Company delivery trucks and there would be a lot of trash around the store. She said Dillon’s Company was not concerned with her business’ hardship. She stated the new grocery store would affect her business in many ways.
Mahoney asked Ms. Storm to give examples how the new store would affect her business.
Ms. Storm said Dillon’s Company had stated there was an eighteen foot line of site to her business. She said the line of site was the very south west corner. She said Dillon’s grocery was trying to bring the down town look and feel to the area but at her expense. Ms. Storm stated the trash from Dillon’s grocery would end up in her parking area. Ms. Storm stated the Dillon’s grocery would block her building and customers would not stop at her business.
Christie asked Ms. Storm if she knew an average number of return customers to On the Rocks Liquor Store.
Ms. Storm stated she had numerous return customers and also new customers.
von Tersch asked Ms. Storm what compromises On the Rocks Liquor Store offered to Dillon’s Company.
Ms. Storm stated Family Video had asked Dillon’s Company to move the structure back 15 feet rather than 25 feet, and had asked for windows on the back of the building.
Jack Martin stated he lived on Barker street and he supported the project. He stated he would like to see a Dillon’s store like the Dillon’s store at 6th and Wakarusa.
Austin Turney stated a larger store at 1740 Massachusetts street was necessary. He said he was in favor of the zero setback and the residents on New Hampshire street had moved to the area after the store was built. Mr. Turney stated some of the traffic concerns in the area had been overblown. He applauded the improvements of the main entrance to the store but stated he was concerned with the north entrance. Mr. Turney stated management would need to keep the entrance free of snow and water build up. He stated he was concerned with the limited parking spaces and straight parking would be more dangerous than angled parking. Mr. Turney stated On the Rocks Liquor Store was a first class store.
Robert Farha stated he was part owner of 1745 New Hampshire street, the six-plex that touched two sides of Dillon’s Company property. He said there had been plans to face the structure towards Massachusetts street and he displayed a drawing of a 43,000 square foot building with the structure facing Massachusetts street and said the structure would look better facing Massachusetts street. Mr. Farha said his property was changed to commercial zoning and asked the Board to put a condition on approval for his property to have two cross access points. He asked the Board to take into consideration the cart corrals and how much space they would require.
Gail Sigurdson stated she represented the 120 tenants of Babcock Place. She stated most of the tenants were customers of Dillon’s grocery store and the pharmacy. Ms. Sigurdson stated the tenants would like to keep the pharmacy and were excited for the outdoor café and the wider aisles within the store. Ms. Sigurdson stated the Babcock tenants would like to see a green demolition of the current Dillon’s grocery store.
Matt Gough, Barber Emerson Law Firm, represented the owners of 1745 New Hampshire street. He stated the Development Code was identical to the State statue that governed variances. He said Dillon’s Company had made revisions and new proposals to the plans and those actions were not enough to address the concerns of the neighbors. Mr. Gough stated Dillon’s Company had not met the legal requirements for a Variance. He said the proposal had nothing to do with uniqueness or hardship and had everything to do with Dillon’s Company own choice. He said in 2009 there was a contract for Dillon’s Company to purchase 1745 New Hampshire street and with that purchase Dillon’s would not need a Variance. Mr. Gough stated Dillon’s Company had the burden to prove that the property was unique and that the Variance would not affect the neighbors. He stated Dillon’s would have to show that the application of the code would constitute an unnecessary hardship on Dillon’s Company. Mr. Gough stated the application exhibited the contrary and the only reason Dillon’s Company needed a variance was due to the fact they were trying to build a store too large for the property and there was not enough parking spaces. He stated the Kansas Supreme Court defined an unnecessary hardship as the use restriction must be so unreasonable as to constitute and arbitrary and capricious interference with the basic right of private property, or there must be convincing proof that it was impossible to use the property for a conforming use, or there must be sufficient factors to constitute a hardship that would in fact deprive the owner of his property without compensation. Mr. Gough stated the staff report stated the applicant needed the variance to make the property practical. He stated to make the property practical was not an unnecessary hardship. He said Dillon’s Company was operating a conforming store today and the company was trying to save money by testing the limits of the City’s Development Code. Mr. Gough stated Dillon’s company made a choice and only wanted a larger structure at the detriment of the neighbors. He stated Dillon’s Company had the financial means to comply with the Development Code but they did not want to. Mr. Gough said if the Board of Zoning Appeals approved the variance, the owners of 1745 New Hampshire street would request a condition be added for cross access in the event the lot was ever rezoned for commercial purposes.
Carpenter asked Mr. Gough to give an example of an adverse affect on the rights of the adjacent property owners with the proposed plan.
Mr. Gough stated the evidence was in the record by On the Rocks Liquor Store owner and neighbors. He stated the over flow and damage to On the Rocks Liquor Store parking lot, the trash produced by the grocery store, delivery trucks driving on and damaging lawns. Mr. Gough stated the larger structure would limit the availability of future development for 1745 New Hampshire Street.
Carpenter asked Mr. Gough if Dillon’s Company had an obligation to protect the future value of 1745 New Hampshire street.
Mr. Gough clarified that if Dillon’s Company wanted a variance they had to show that they would not adversely affect the neighbors and Dillon’s had not done so.
Carpenter said on one hand Mr. Gough argued Dillon’s did not meet the criteria of a hardship and the proposal was purely financial. He said on the other hand Mr. Gough argued the proposal would put a hardship on the property owner of 1745 New Hampshire street due to unknown future development. Carpenter asked Mr. Gough to choose between the two arguments.
Mr. Gough said the issues were separate. He said the first issue dealt with entirely the definition of what Dillon’s Company hardship was and the fact that it would be less profitable to the company to build the store differently was not a hardship under the Kansas Supreme Courts definition. He stated the adverse effect on the neighbors was a different issue.
Carpenter stated Mr. Gough gave an example of the wear and tear of On the Rocks Liquor Store parking lot. He said there was a contractual relationship with On the Rocks Liquor Store and Dillon’s Company for cross traffic.
Mr. Gough stated he was not present to create a factual record. He said he was present to illustrate the legal arguments of the proposal.
Carpenter said Mr. Gough created a factual record. He asked Mr. Gough if he had found a definition or guidance from the court for an adverse effect on the rights of adjacent property owners and neighbor’s.
Mr. Gough stated he found a case where a property was a triangular tract and due to the shape and a change of the zoning code, rendered the property undevelopable. He stated because of the change in the code the property owner suddenly had no development right and a variance was requested based on the change in the Development Code. He said at the present time Dillon’s Company was operating a conforming use and could continue doing so. Mr. Gough stated by granting a variance Dillon’s Company would lose nothing that they had at the present time.
Austin Turney II, stated there would be no adverse effect to On the Rocks Liquor Store. He stated neighbors who bought property next to a commercial property, in a sense would adversely affect the neighbors if the business was more successful. He said a business could not be expected to try and be less successful to create less traffic and hopefully the interest of the fifty people within a one block radius of Dillon’s grocery store would not be weighed more greatly than the five to ten thousand east Lawrence residents who lived in the greater east Lawrence area. Mr. Turney said it was hard to see how the size of the new Dillon’s Grocery would work without the variance and Dillon’s could close the store and abandon the site and the neighbors would be upset.
Mary Wharff, Barker Neighborhood Association stated it was frustrating when people that do not live next door to a business, try and tell people that do how they should feel about it. She said traffic was often a surprise and the attitude of working with Dillon’s Company managers had been an unhappy surprise for the residents. She said she lived a few blocks away and always drove to the store as would other customers. Ms. Wharff stated Jennie Storm had asked Brian Fulmer if Dillon’s Company would put a loading dock within forty feet of a Dillon’s front door and Mr. Fulmer stated no. She said Ms. Storm should not have to spend her time contacting Dillon’s Company to clean up the trash in the area. Ms. Wharff stated because the neighbors were bringing up the issues did not mean they did not want a new store. She said there was no use for a new store if the problems would be worse. Ms. Wharff stated fear of what might be should not dictate wisdom. Ms. Wharff displayed photos of neighbors’ lawns on New Hampshire street that appeared to have ruts created by Dillon’s Company delivery trucks.
Mahoney asked Ms. Wharff how she knew the ruts were caused by Dillon’s Grocery delivery trucks.
Ms. Wharff stated the ruts were tractor truck tire tracks and it was highly likely the ruts were caused by Dillon’s delivery trucks. Ms. Wharff presented photos of Dillon’s docking area, delivery trucks and trash in the area. She said the zero set back on Massachusetts street was taking a risk with the parking. She said most commercial property faced the parking spaces and there needed to be a condition for a way for the neighbors to ask for help with the parking conditions in the future. She stated she would hate to see On the Rocks Liquor Store move and leave an empty space.
Allan Zimmerman stated he lived within one block of Dillon’s Grocery and he was in favor of the new store. He said his primary concern was the amount of parking available. He said he had never seen the lot full but Dillon’s was adding more employees which would cause a problem. He said the only effect on the property at 1745 New Hampshire street would be the ability to sell the complex. Mr. Zimmerman said Dillon’s Company could have been a better neighbor and On the Rocks Liquor Store had a valid concern.
Ms. Storm stated the cross entrance agreement was from entrance to entrance. She displayed photos of four delivery trucks, trash and bread racks at the current Dillon’s Grocery store. She stated she had a huge safety concern for the Babcock residents.
Andy Bloomar stated he had counted the number of current parking spaces and there were 179. He displayed a photo of the current parking lot and counted the spots for the Board.
PUBLIC HEARING CLOSED
Motioned by Mahoney, seconded by von Tersch, to close the public hearing.
Motion carried unanimously, 6-0
BOARD DISCUSSION
Mahoney asked Mr. Guntert if the public parking area on the east side of New Hampshire street would be removed.
Mr. Guntert stated the parking area on New Hampshire street would not be removed.
Carpenter asked Staff what the justification was to substitute the ITE parking requirement for the Development code.
Mr. Guntert said the code had not been substituted. He stated the ITE parking requirement was only submitted as additional information and as a resource as another way to look at parking.
Kimball asked Mr. Guntert when the 25 foot setback on New Hampshire street was imposed. He asked if the zoning had changed at some point.
Mr. Guntert stated the area had been commercially zoned for many years. He said the property to the south of On the Rocks Liquor Store had asked for a setback variance to conform to the current Development Code.
Christie asked Mr. Fulmer where the tractor trailer delivery trucks would park while waiting to make a delivery to Dillon’s Grocery store.
Mr. Fulmer said there were approximately 65 trucks that would deliver to the store. He said most of the trucks were smaller trucks and the delivery would be cut off at noon each day.
Christie asked Mr. Fulmer if trucks would use On the Rocks Liquor Store parking area to get to New Hampshire street.
Mr. Fulmer stated he was not sure why the trucks would drive to New Hampshire street. He said there was no need for trucks to use On the Rocks Liquor Store parking area. He said Massachusetts street would be the easiest access point for the delivery trucks.
Christie asked Mr. Fulmer if there was a future problem with the delivery trucks how the community would solve the problem and work with Dillon’s Company.
Mr. Fulmer stated Dillon’s Company had been responsive to the neighbors in the area. He said problems with the new store would be directed to a store manager and then a district manager.
Christie asked Mr. Fulmer if he had an estimate of what the increased business would be with a larger store in the area.
Mr. Fulmer stated Dillon’s Company did not share information.
Christie stated a larger grocery store in the area could potentially provide more customers to On the Rocks Liquor Store. He asked Mr. Fulmer if the current Dillon’s Store hours would change.
Mr. Fulmer stated the grocery store would be open twenty four hours a day.
Christie asked Mr. Fulmer if false windows could be installed at the back of the grocery store.
Mr. Fulmer stated more architectural elements had been added to the proposal.
Ms. Howitz stated windows would not be added to the south side of the structure. She said Dillon’s Company was working with the Architectural Review Committee for additional ideas for the south side of the structure.
Carpenter stated he had seen trucks at the current loading dock drive on neighbors’ lawns on New Hampshire street. He asked if the new design would help the ability of trucks to keep off neighbors lawns.
Mr. Fulmer stated the existing radius would be widened and the larger trucks would be able to make turns in the area.
Carpenter asked Mr. Kaup if the Board of Zoning Appeals denied the variance if it would cause Dillon’s Company and undue hardship.
Jim Kaup, Dillon’s Attorney, stated the rights of the neighbors would not be affected with the Board of Zoning Appeals approval of the variance. He said Staff had made a recommendation to the Board of Zoning Appeals to approve the variance.
Mahoney stated he heard no data or saw no evidence that the rights of the adjacent property owners would be affected by the new Dillon’s Grocery store.
von Tersch stated the new proposal of moving the store five feet would not make a difference with the line of site of On the Rocks Liquor Store. She said it would be a hardship on the community if the project did not go forward.
Carpenter stated he was persuaded by the argument that things had really changed in 36 years in planning and how communities should develop. He stated the property was an old suburban drive in strip mall of the 60’s and there were constraints with the property and that was an undue hardship. He said right now a definition needed to be applied for undue hardship. Carpenter stated the ITE parking criteria had been offered as a suggestion and there could be a rare occasion the parking lot would be full and customers would park at On the Rocks Liquor Store. He stated On the Rocks Liquor Store would have means of recourse and no parking signs could be posted. He said he would like to tie the variances as a condition to the approval of the site plan for a reconfigured grocery store at the location.
ACTION TAKEN
Motioned by Carpenter, seconded by von Tersch, to approve the variance requests at 1740 Massachusetts street, based on the findings of fact in the staff report, with the condition the variance be tied to the current site planning process and the property’s usage remains a grocery store.
Motion approved unanimously, 6-0
ITEM NO. 4 313 EAST 8TH STREET [DRG]
B-12-14-10: A request for variances as provided in Section 20-1309 of the Land Development Code of the City of Lawrence, Kansas, 2009 edition. The requests are: 1) a variance to permit an existing commercial structure to exceed the 3,000 square feet gross floor area allowed in the CN1 (Inner Neighborhood Commercial) District according to Section 20-207(d)(3) of the City Code to a maximum floor area of 3,290 square feet; and, 2) variances from the CN1 District building setback standards in Section 20-601(b) to address setbacks for the existing building. The variances are for the commercially developed property located at 313 E. 8th Street. Submitted by John H. Flanders, Member of R & B Holdings, LLC, the property owner of record. The legal description for the property in the appeal and the case file for the public hearing item are available in the Planning Office for review during regular office hours, 8-5 Monday - Friday.
STAFF PRESENTATION
Mr. Guntert presented the item.
APPLICANT PRESENTATION
The applicant was not present.
PUBLIC COMMENT
No one from the public spoke to the item.
PUBLIC HEARING CLOSED
Motioned by Carpenter, seconded by Mahoney, to close the public hearing.
Motion carried unanimously, 6-0
BOARD DISCUSSION
Lowe asked what plans the applicant had for the property.
Mr. Guntert stated the property owner requested to rezone the property so that it would match the use of the property. He said the property would be more marketable.
Kimball asked Mr. Guntert if the property was an auto related use.
Mr. Guntert stated the property was considered to be an auto repair shop. He said the structure was originally built for Kennedy Glass Company.
Kimball asked if there was a condition of use tied to the property.
Mr. Guntert said the property was classified as non conforming use.
Scott McCullough stated it was a challenge for Staff to determine if Board of Zoning Appeals, Historic Resources Commission, or Planning Commission should be scheduled first. He said the project would be conditioned upon the Board of Zoning Appeals approval and the variance was needed for the project to move forward.
Mr. Guntert stated the project was presented to the Historic Resources Commission in January and there was no comment on the variance aspect of the project.
Mr. McCullough said if the variance was granted it would only be applicable if the rezoning occurred.
ACTION TAKEN
Motioned by Kimball, seconded by Mahoney, to approve the variance request at 313 East 8th street, based on findings of fact in the staff report, contingent upon the approval of the rezoning by the Lawrence City Commission.
Motion approved unanimously, 6-0
ITEM NO. 5 MISCELLANEOUS
a) Mr. Guntert introduced Board member Brian Edie.
ACTION TAKEN
Motioned by Kimball, seconded by Mahoney, to adjourn the Board of Zoning Appeals meeting.
Motion carried unanimously, 6-0
ADJOURN – 9:30p.m.
Official minutes are on file in the Planning Department office.