Memorandum

City of Lawrence

Planning and Development Services

TO:	Tom Markus, City Manager
FROM:	Scott McCullough
DATE:	March 29, 2016
RE:	FDP-15-00642 - HERE Mixed Use Project

This memo addresses claims that the request to revise FDP-14-00446 has not followed the process established by the City Code. To the contrary, Staff gives great deference to the processes outlined in the City’s Land Development Code and, as noted below, this request has been accorded extraordinary process, given that it has, during previous requests and now with this request, been and is being reviewed by the City Commission, the City’s highest authority.

Brief History

February 24, 2014 – PDP-13-00518, acting as both the preliminary development plan and preliminary plat, was considered and recommended for approval by the Planning Commission. This plan excluded the property at 1115 Indiana Street. The Planning Commission’s action included approval of a subdivision variance to reduce the width of Right of Way on 11th Street from 80’ to its existing 40’.

March 11, 2014 – PDP-13-00518 was unanimously approved by the City Commission.

June 23, 2014 – PDP-14-00183 was considered and recommended for approval by the Planning Commission. This plan included 1115 Indiana Street and several design revisions. Based on those substantial revisions, the City considered this plan to be a major change from the previously approved preliminary development plan and therefore submitted it to the Planning Commission for recommendation. Please note that the Final Development Plan had not been approved at that time. The Planning Commission’s action again included approval of a subdivision variance to reduce the Right of Way on 11th Street from 80’ to its existing 40’. This application superseded PDP-13-00518.

July 8, 2014 - PDP-14-00183 was approved by City Commission. This plan included robotic parking (essentially a warehouse for vehicles) and representation that tenants would pay for parking in addition to their lease. This plan set forth all of the elements existing today: number of parking spaces, negotiated agreement related to on-street parking, use of robotic parking in lieu of a self-park system, etc.

February 26, 2015 – PF-14-00441, the final plat, was recorded at the Register of Deeds Office. Administrative approval had been granted on January 13, 2015.

May 26, 2015 – Staff submitted the final development plan, FDP-14-00446, to the City Commission to confirm Staff’s interpretation of building height for the project. The City Commission ultimately approved the plan’s elevations.

July 1, 2015 – After receiving approval from the City Commission, Staff issued its Administrative Determination approving FDP-14-00446.

July 7, 2015 – FDP-14-00446 was recorded at the Register of Deeds office and is the Final Development Plan of record for the HERE mixed-use project.

On or about December 21, 2015 – HERE submitted application FDP-15-00642, seeking to modify FDP-14-00446 to replace the proposed robotic parking system with a valet parking system and to prohibit occupancy within a portion of the HERE mixed-use project, consistent with the fact that, under a valet parking system, it could warehouse fewer automobiles. It is this request that is pending before the City Commission.

A discussion on process follows.

Process Discussion

The City’s Land Development Code requires that a final development plan comply with the preliminary development plan. Any major change between the preliminary development plan and the final development plan, as defined by the Code (listed below), requires both rehearing and re-approval of the preliminary development plan both by the Planning Commission and the City Commission. However, modifying an approved final development plan requires a different process. Section 20-1304(f)(5) of the City Code outlines the process by which an approved final development plan can be modified. There are two procedures relevant to our inquiry. First, if the amendment is considered a major change, any requested modification “may be approved by an affirmative vote of a majority of all members of the City Commission upon a finding, after a public hearing, that the modification complies with Section 20-1304(f)(3). Newspaper, posted, and mailed notice of the City Commission’s public hearing shall be provided in accordance with Section 20-1301(q).” City of Lawrence, Kan., Code § 20-1305(f)(5)(iii) (Jan. 1, 2015).

Second, if the amendment is considered to not be a major change, “[m]odifications to the Final Development Plan that do not constitute Major Changes as defined in Section 20-1304(e)(2)(iv) may be approved by the Planning Director.” City of Lawrence, Kan., Code § 20-1305(f)(5)(iv) (Jan. 1, 2015). The current request to modify FDP-14-00446 -- while unique in scale and community interest -- does not constitute, under Staff’s analysis of the City Code, a major change. However, because of the uniqueness of the project and because of the Commission’s significant involvement with the project to date, Staff has ceded to the City Commission its authority to approve administratively the proposed request to modify FDP-14-00446. That was done mainly so that the City Commission could review the proposed change from a robotic parking system to a valet parking system. Accordingly, this is a hearing before the City Commission under Section 20-1305(f)(5)(iv) and is not, as has been alleged, a hearing under Section 20-1305(f)(5)(iii). The criteria that Staff employs to determine whether a proposed change is major or minor (and Staff’s application of that criteria to this case) follows:

Analysis of Major change
Under Section20-1304 (e)(iv), “[a] Major Change is one that:”	Staff’s analysis
a. Increases the proposed gross residential density or intensity of use by more than five percent (5).	This request does not include a request to increase the residential density or intensity. In fact the request proposes a reduction in residential density.
b. involves a reduction in the area set aside for Common Open Space in general or Recreational Open Space or Natural Open Space in particular, or the substantial relocation of such areas.	This request does not seek changes to Common Open Space, Recreational Open Space, or Natural Open Space, or the relocation thereof.
c. Increases by more than 10 percent (10%) of the total floor area proposed for nonresidential uses.	This request does not seek to increase by more than 10% the total floor area proposed for nonresidential uses.
d. Increase by more than 5 percent (5%) the total ground area covered by buildings.	This request does not seek to increase the total ground covered by the building.
e. Changes a residential use or building type.	This request does not propose a change from residential use and does not propose a change to the building type.
f. Increases the height of the buildings by more than 5’.	This request does not seek to change the building height.
g. Represents a new change to the Preliminary Development Plan that creates a substantial adverse impact on surrounding landowners.	This request does not represent a change that would have substantial adverse impact on surrounding landowners. The proposed change would simply match the number of residential units with the number of automobiles that may be accommodated by the proposed valet parking system.
h. changes a residential building type or a non-residential structure by more than 10% in size.	No changes to the building size are proposed.

Authority to waive parking standards

Standards can be waived in one of two ways under the Land Development Code: (1) through a variance granted by the Board of Zoning Appeals; or (2) through an administrative waiver. See City of Lawrence, Kan., Code § 20-1305 (Jan. 1, 2015). Because it is the highest reviewing authority for the City, Staff has, on occasion, submitted proposed administrative waivers to Code standards to the City Commission for final approval. Here, the applicant has proposed a change from a robotic parking system to a valet parking system. While it is Staff’s opinion that there is no change in concept regarding the warehousing of automobiles, because valets will be accessing the warehouse and driving automobiles in and out of the storage area and because fewer automobiles can be warehoused with a valet parking system, Staff determined that, given the City Commission’s interest in this project, the City Commission should consider the proposed valet parking system and the attendant waiver of Code standards.

Summary

This project not only adheres to the processes identified in the Land Development Code, it exceeds such because it has been presented directly to the City Commission, the highest authority of review for the City.