Memorandum
City of Lawrence
Planning & Development Services
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TO: |
David L. Corliss, City Manager
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FROM: |
Scott McCullough, Director
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Date: |
December 5, 2011
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RE: |
12th and Haskell Recycling Center – 1146 Haskell Avenue
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Please include this memo on the December 13 City Commission agenda. This memo summarizes the history, code issues, and position to date of the Planning Office relative to a land use compliance matter located at 1146 Haskell Avenue. The attachments provide greater detail into the various issues.
The central issue relates to interpreting Section 20-1502(d) of the 2006 Land Development Code; a section that has not been applied to a property since its adoption. The section requires any non-conforming “Open Use of Land” to be discontinued by November 1, 2008. Staff is not aware that any concerted effort was made leading up to the 2006 adoption of the code that would have identified properties in the city that had a non-conforming Open Use of Land that would have required attention with regard to this code section. Open Use of Land is defined later in this memo. One of the challenges is that the code does not provide clear direction on what amount of outdoor use is necessary to constitute an Open Use of Land. Additionally, amortizing land uses is a regulatory method with significant impacts to the land owner and surrounding neighbors.
Staff found that a non-conforming Open Use of Land exists on the subject property and cited the owner for violation of this code section after investigating a complaint received February 16, 2010. Staff did not have knowledge of the land use at the subject property in 2006 when the code was adopted or a discussion would have likely ensued with the owner related to complying with the code section at that time. In the past several months the owner has been working to reduce the scope of the outdoor use to a level that could render it to not be classified as an Open Use of Land.
The interpretation of this code section will impact the owner of and neighbors to the 12th and Haskell Recycling Center. Because of the implications to the owner and neighbors and because staff has had no occasion to apply or interpret this code section within the community, staff is seeking direction from the commission on interpreting this code section as it relates to this compliance matter.
History
April 12, 1966 – The subject property was annexed into the city as part of a larger annexation effort that included 242 acres. The ordinance was published on April 18, 1966.
April 12, 1966 – The city zoning code was revised and included a provision to discontinue nonconforming Open Uses of Land within three years from the effective date of the approving ordinance. The ordinance became effective upon publication on April 27, 1966. For all intents and purposes the property and zoning code were adopted at the same time and the property was apparently provided RS-1 zoning at that time. The record is not clear as to whether the city found the use at the time of annexation to be an Open Use of Land or whether any effort was made at the time to discontinue the use. The record indicates that auto salvage was the likely use at the time of annexation and zoning code adoption. In any event, certain outdoor uses on the property were maintained for several decades after annexation and zoning to the RS-1 district.
June 19, 2003 – A letter from Price Banks, representing Bo Killough, is submitted to the Planning Office requesting, “administrative approval of the business Bo intends on the site.” The letter described the business as follows:
“Bo is in the business of purchasing returned or rejected housewares and outdoor appliances and furniture from distributors and salvaging such items to reassemble and sell. The business is a clean salvage and sales operation. It is anticipated that there will be limited palletized outdoor storage of materials, and that most of the assembly work will be conducted within the structure on the site. It is anticipated that business hours will be 8:00 a.m. to 6:00 p.m. seven days a week with limited evening hours.” Letter attached.
July 17, 2003 – Ron Schneider, representing Katherine Ray (seller of 1146 Haskell Avenue), submits a history of the property and requests that the Planning Office, “provide written confirmation and acknowledgement that this property has been used and occupied as a legal non-conforming activity and that the proposed use of the property by Mr. Killough is authorized by the City of Lawrence.” Letter attached.
August 5, 2003 – Linda Finger, then Director of the Lawrence – Douglas County Metropolitan Planning Office, issued a letter in response to Mr. Schneider’s and Mr. Banks’ letters declaring the following:
“The uses proposed by Bo Killough for the property which include salvage, assembly and sales of housewares, outdoor appliances and furniture are similar in nature to the previous salvage and sales operation. The proposed uses are permitted as a continuation of the legal, non-conforming use of the property.” Letter attached.
July 1, 2006 – Significant revisions to the city’s zoning code were made. Noteworthy is Section 20-1502(d) which was brought forward from the 1966 code with minor changes and which states the following:
A nonconforming commercial or industrial Open Use of Land shall be discontinued, including the removal of all above-surface improvements and Structures accessory to the Open Use of Land, but not to the permitted uses, by November 1, 2008. Any Open Use of Land that becomes nonconforming because of subsequent amendments to this Development Code shall also be discontinued on the same basis within 3 years of the Effective Date of the amendment that renders the use nonconforming.
The property was converted to RS10 zoning with the adoption of this “new” Land Development Code.
February 16, 2010 – The Planning and Development Services Department received a complaint signed by many neighbors regarding the land use activity located at 1146 Haskell Avenue. Complaint attached.
February 22, 2010 – City staff inspected the property as part of the investigation into the complaint.
May 4, 2010 – After completing an investigation, the Planning and Development Services Department provided a Notice of Violation to Bo Killough citing several violations found to be evident at the property, including existence of an “Open Use of Land”, materials stored in the floodplain, and tracking mud on city streets. Notice attached.
May 18, 2010 – An appeal to the Notice of Violation was submitted by Byron Wiley, Michael Almon, and James Grauerholz citing omissions in the Notice of Violation. This temporarily stayed all enforcement action while the appeal was being processed. Appeal application attached.
May 21, 2010 – Winton A. Winter, Jr, representing Bo Killough, submitted a letter dated May 18, 2010 in response to the Notice of Violation. Letter attached.
June 25, 2010 – The appeal application was withdrawn by the applicants prior to the Board of Zoning Appeals hearing the application. Letter attached.
August 11, 2010 – A meeting was held at the subject property between staff, Mr. Killough, and several neighbors to discuss concerns. It was agreed that Mr. Killough would present a site plan in an attempt to address the concerns of neighbors and city.
September 3, 2010 – Staff provided Bo Killough a letter clarifying some of the violations on the property and requesting action to remedy the violations within 45 days of the date of the letter. Letter attached.
October 20, 2010 – Bradley R. Finkeldei, representing Bo Killough, submitted a letter dated October 18 in response to staff’s September 3, 2010 letter. Letter attached.
March, 2011 – Mr. Killough invited neighbors to meet to discuss site plan elements. Neighbors declined the invitation to meet with Mr. Killough for the reasons cited in the attached email.
September 26, 2011 – A memo dated September 22, 2011 was provided to the City Commission that outlined the compliance issues and stated the following:
“Since the initial findings were made, Mr. Killough has reduced the open use of land to levels found to be acceptable by staff in the context of the enforcement action. Staff is currently working with Mr. Killough to formalize a site plan that clearly delineates the boundary of the open use of land. With this effort, Mr. Killough will have the ability to use a much smaller outdoor portion of the property for a use accessory to the recycling center operated within the structure.”
This memo generated several questions from the commissioners about non-conforming uses and the facts of this specific enforcement case. While staff has verbally indicated to Mr. Killough that the outdoor materials storage has been reduced to levels found to be in compliance with the code and no longer an Open Use of Land, a final determination of compliance has not been provided to Mr. Killough as staff desires to obtain guidance from the Commission on Section 20-1502(d) related to discontinuing non-conforming Open Uses of Land. Memo attached.
Land Development Code Issues
Central to this enforcement matter is Section 20-1502(d), Discontinuance of Nonconforming Open Uses of Land, which states the following:
A nonconforming commercial or industrial Open Use of Land shall be discontinued, including the removal of all above-surface improvements and Structures accessory to the Open Use of Land, but not to the permitted uses, by November 1, 2008. Any Open Use of Land that becomes nonconforming because of subsequent amendments to this Development Code shall also be discontinued on the same basis within 3 years of the Effective Date of the amendment that renders the use nonconforming.
Section 20-1701 defines Open Use of Land as:
A use that does not involve improvements other than grading, drainage, fencing, surfacing, signs, utilities, or Accessory Structures. Open uses of land include, but are not limited to, auction yards, auto wrecking yards, junk and salvage yards, dumps, sale yards, storage yards and race tracks.
Discussion
The subject property is zoned RS10. GPI zoning and city Public Works facilities exist to the north, west, and east and RS7 zoning and residential uses exist to the south.
Staff concluded, after the investigation, that the use at 1146 Haskell includes an Open Use of Land; however, the code does not provide clear direction on how much use of the land qualifies a use as an Open Use of Land. In this specific case, the recycling operation is performed both in a building on the property and outside on the property. Staff has taken the position that the amount of use of the open land has needed to be greatly reduced to comply with the intent of the Land Development Code, as well as the intent of the representation submitted to the Planning Office in 2003 wherein the Planning Office concluded that, “a clean salvage and sales operation that would have limited palletized outdoor storage of materials”, was an acceptable nonconforming use.
Staff has also recognized that this may be an issue of a legal nature in terms of determining the scope of nonconformity at the property. The business represented in Price Banks’ letter may serve as an example of one business governed by the concept of legal non-conformity, but it might not be the only one. Mr. Killough’s attorneys have argued that a recycling facility may also be legal at the site. In any event, the current code does amortize Open Uses of Land if they are non-conforming. The matter before the commission appears to be one of scope since the code does not provide clear direction on how much land can be used to qualify it for an Open Use of Land.
The initial investigation yielded evidence of significant portions of the property being used for outside storage of recycling materials. Since the initial findings were made, Mr. Killough removed the majority of the materials from the floodplain, has significantly reduced the materials on the property that are contributing to the Open Use of Land, and has requested permission to install a concrete drive to halt the mud from entering onto city streets. Staff is currently working with Mr. Killough to formalize a site plan exhibit that clearly delineates the boundaries of the use of the property outside of the building. With this effort, Mr. Killough will have the ability to use a much smaller outdoor portion of the property for an outdoor use accessory to the recycling center operated within the structure.
Accepting Mr. Killough’s proposal to reduce the open use of land to an acceptable level will permit staff to also approve a floodplain development permit to permit the installation of a concrete drive, which will reduce, if not eliminate, the mud being tracked onto the public streets.
Whether the outdoor operations no longer qualify as Open Use of Land is a matter of interpretation of the code and is at the heart of this enforcement matter. Staff is requesting City Commission review of the facts and the code language in order to determine if the use of the outdoor areas of the property are an Open Use of Land. If found to be an Open Use of Land, then the outdoor uses must cease according to Section 20-1502(d) of the Land Development Code.
It should be noted that once a determination is made by staff, said determination can be appealed to the Board of Zoning Appeals within 10 days of the determination. Any appeal of the Board of Zoning Appeals can be made to the District Court.
Action requested:
Review the record and Land Development Code and provide staff direction on whether the current boundaries of the use of the property outside of the building qualify as an Open Use of Land pursuant to the Land Development Code.
Additional Attachments:
Neighborhood correspondence of September 30, 2011