City of Lawrence
City Attorney’s Office
TO: David L. Corliss, City Manager
Toni Ramirez Wheeler, City Attorney
FROM: Randy Larkin, Senior Assistant City Attorney
CC: Scott McCullough, Director of Planning and
Neighborhood Development
DATE: March 6, 2012
RE: 900 New Hampshire
__________________________________________________________________
Brief Background
On December 14, 2011, the owner of record of 900 New Hampshire Street ("the applicant") filed with the City a revised application, Case No. DR-12-185-11, seeking site plan approval of a proposed hotel to be constructed at that site. Because 900 New Hampshire Street is located within the environs of the North Rhode Island Street Residential Historic District, in accordance with state and local law, the application was referred to the Historic Resources Commission ("HRC") for review. On February 16, 2012, the HRC conducted a public hearing on Case No. DR-12-185-11. At the conclusion of that hearing, the HRC took three separate actions: (1) it determined that, under state law, the proposed project would "encroach upon, damage, or destroy" the environs of the North Rhode Island Street Residential Historic District; (2) it denied a local Certificate of Appropriateness, finding again that the proposed project would encroach upon, damage, or destroy the environs of the North Rhode Island Street Residential Historic District; and (3) it found that the proposed project complied generally with the standards established by the Downtown Design Guidelines.
The applicant now appeals the HRC's first two determinations to the City Commission. The purpose of this Memorandum is to outline the City Commission's scope and standard of review. This Memorandum will address the State law and City Code determinations separately, as outlined below.
The State Law Framework
1. No proposed construction project involving an historic property or within the environs of an historic property may proceed until notice is given to the state historical preservation officer (SHPO) and the SHPO has been afforded the opportunity to investigate the proposed project and to provide comment. K.S.A. 2010 Supp. 75-2724(a).
2. However, the SHPO may, under certain circumstances, by way of contract, delegate his duties to local governments. K.S.A. 2010 Supp. 75-2724(e)(1).
3. The SHPO has, by way of contract, delegated his duties in the City of Lawrence, Kansas, to the City. The City, in turn, has created the Lawrence Historic Resources Commission ("HRC") and has charged them, among other things, with fulfilling those duties entrusted to the SHPO. See City of Lawrence, Kan., Code §§ 22-101 et seq. (Jan. 1, 2011).
4. At a public hearing, on February 16, 2012, the HRC reviewed the proposed project and determined that it would "encroach upon, damage, or destroy" the environs of the North Rhode Island Street Residential Historic District. See K.S.A. 2010 Supp. 75-2724(a).
5. Accordingly, the proposed project shall not proceed unless the City Commission determines "based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from said use." Id.
6. The burden of establishing that there is "no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from said use" is borne by the proponent of the project. Allen Realty, Inc. v. City of Lawrence, 14 Kan. App.2d 361, 371, 790 P.2d 948 (1990).
The Scope of Review
7. The scope of review includes all materials that the City Commission may consider in making its decision. The City Commission's review in this case is limited to "relevant factors." See id, 14 Kan. App.2d at 373.
8. A "relevant factor" is deemed to be "pertinent information submitted by project proponents or project opponents in written form, including evidence supporting their positions." K.A.R. 118-3-1(j).
9. In making its determination, the City Commission is authorized to take into consideration all "relevant factors" relating to the project under consideration. Reiter v. City of Beloit, 263 Kan. 74, 90, 947 P.2d 425 (1997).
10. Such relevant factors may include, as is relevant, the character of the neighborhood, the zoning and uses of nearby properties, the suitability of the property for the proposed use, the extent to which the proposed use would detrimentally affect nearby property, the length of time the property has remained vacant, the relative gain to the public health, safety, and welfare balanced against the hardship imposed upon the applicant by denial, the recommendations of professional staff, and compliance with the comprehensive plan. Id., 263 Kan. at 90 (citing Golden v. City of Overland Park, 2224 Kan. 591, 598, 584 P.2d 130 (1977)).
11. The report and reasoning (or lack thereof) of the HRC may also be a "relevant factor." See id., 263 Kan. at 90.
12. As it relates to the City Commission's "no feasible and prudent alternatives" determination, a "relevant factor" is something more than a mere suggestion as to a possible alternative. A proposed alternative is only a "relevant factor" if it includes sufficient factual information that would support a conclusion that such proposed alternative is not only feasible, but prudent. A suggested alternative use lacking factual support is not a "relevant factor," is irrelevant, and must be ignored by the City Commission in making its determination. Allen Realty, Inc. v. City of Lawrence, 14 Kan. App.2d at 373.
13. A suggested alternative use constitutes a "relevant factor" if, in the City Commission's view, the suggestion addresses technical, design, and economic issues related to the proposed project, as well as the project's relationship to any community-wide plan. See Friends of Bethany Place, Inc. v. City of Topeka, 43 Kan. App.2d 182, 207, 222 P.3d 535 (2010).
14. The suggestion that the subject property could be sold or that the applicant has not attempted to sell the subject property is not a "relevant factor" and may not be considered by the City Commission. Allen Realty, Inc. v. City of Lawrence, 14 Kan. App. 2d at 374.
15. If a suggested alternative is not a "relevant factor," the applicant is not required to refute it. Lawrence Preservation Alliance, Inc. v. City of Lawrence, 20 Kan. App.2d 93, 95, 819 P.2d 138 (1991), rev. denied 250 Kan. 805 (1992).
16. If a suggested alternative does not constitute a "relevant factor," the aggregation or repetition of two or more such suggestions -- absent sufficient evidence to establish that such suggestion is feasible and prudent -- does not convert the suggestion into a "relevant factor." Friends of Bethany Place, Inc. v. City of Topeka, 263 Kan. at 207.
The Standard of Review
17. Based on its review and consideration of the "relevant factors," the City Commission must make two determinations: (1) whether there is "no feasible and prudent alternative to the proposal" and (2) whether the proposed "program includes all possible planning to minimize harm to such historic property resulting from said use." K.S.A. 2010 Supp. 75-2724(a).
a. No Feasible and Prudent Alternative
18. As used in the Kansas State Historical Preservation Act of 1977, K.S.A. 75-2715 et seq. ("KSHPA") "no feasible and prudent alternative to the proposal" means that there is no alternative solution to the proposed project that can be reasonably accomplished that is either sensible or realistic. K.A.R. 118-3-1(e).
19. When considering whether there is "no feasible and prudent alternative to the proposal," the City Commission must consider the following factors: (1) technical issues; (2) design issues; (3) the proposed project's relationship to the community-wide plan, if any; and (4) economic issues. Id.
20. The words "feasible" and "prudent" shall be accorded their natural and ordinary meaning. Reiter v. City of Beloit, 263 Kan. at 74.
21. "Feasible" means "[c]apable of being accomplished or brought about; possible;" "suitable;" or "reasonable." American Heritage College Dictionary at 499 (3d ed. 1997); see also www.merriam-webster.com/dictionary/feasible.
22. "Prudent" means "[w]ise in handling practical matters; exercising good judgment or commons sense;" "marked by wisdom or judiciousness;" or "provident." Id. at 1102; see also www.merriam-webster.com/dictionary/prudent.
23. The KSHPA encompasses a wide spectrum of possible actions -- including the proposed project -- that do not always implicate the taking of protected property. Where the proposed project does not involve the actual destruction of protected historic property -- as in this case -- the courts do not construe "no feasible and prudent alternative" as tightly as they do in other cases. Reiter v. City of Beloit, 263 Kan. at 93.
24. In determining whether there is "no feasible and prudent alternative to the proposal," the City Commission must make such determination on a "case by case" basis, taking into consideration the "relevant factors." Reiter v. City of Beloit, 263 Kan. at 93.
25. In reviewing any determination of the City Commission under the KSHPA, the ultimate question for the courts "is whether the [City Commission] took a hard look at all relevant factors and, using plain common sense, based its determination upon the evidence." Id. at 93-94.
26. The City Commission's determination will be affirmed if the record discloses that the City Commission took the required "hard look" at the relevant factors and made its decision based on the evidence. See Mount St. Scholastica v. City of Atchison, Kan., 482 F. Supp.2d 1281, 1291 (D.Kan. 2007).
b. Program Includes All Possible Planning
27. As used in the KSHPA, "program includes all possible planning" means "that the written evidence and materials submitted … [to the Lawrence Historic Resources Commission] clearly identify all alternative solutions that have been investigated, compare the differences among the alternative solutions and their effects, and describe the mitigation measures proposed by the project proponent that address an adverse effect determination …." K.A.R. 118-3-1(i).
28. The "program" means the proposed project. Allen Realty, Inc. v. City of Lawrence, 14 Kan. App. 2d at 374.
29. In determining whether a "program includes all possible planning to minimize harm," the City Commission must consider various factors, including lighting, traffic, vandalism, noise, drainage, fire, height, trash, among others, and determine whether the proposed project would protect the historic property from those sorts of harm. See, e.g., Reiter v. City of Beloit, 263 Kan. at 95-96 (because the building permit issued for a Casey's General Store next to an historic property had those types of conditions in it, it passed muster).
c. Conclusion
30. Under the KSHPA, the duty of the City Commission is to examine all relevant factors and determine whether there is no feasible and prudent alternative to the proposal and whether it includes all possible planning to minimize harm to the historic district. In making those determinations, the City Commission shall consider any relevant factors logically connected to its ultimate determination. The determination must necessarily be made on a case-by-case basis and the scrutiny of the city Commission will depend in large part on the nature of the proposed project and the effect such project will have on the historic district or its environs. See Reiter v. City of Beloit, 263 Kan. at 94.
The City Code Framework
31. In addition to making a determination under state law, the Historic Resources Commission is charged by the City with determining whether a proposed project, within the environs of an historic district, should be issued a Certificate of Appropriateness. City of Lawrence, Kan., Code § 22-501(B) (Jan. 1, 2011).
32. Where, as here, the proposed project is within the environs of an historic district, the presumption is that the Certificate of Appropriateness shall be issued unless it is established that the proposed project will "significantly encroach on, damage, or destroy the … historic district." City of Lawrence, Kan., Code § 22-505(A)(4) (Jan. 1, 2011).
33. In denying a Certificate of Appropriateness, the Historic Resources Commission must accompany its denial with "a statement of the reasons for the denial." City of Lawrence, Kan., Code § 22-504(A) (Jan. 1, 2011).
34. The applicant may appeal a denial of a Certificate of Appropriateness to the City Commission. City of Lawrence, Kan., Code § 22-504(B) (Jan. 1, 2011).
35. On appeal -- in this case because the presumption favors approval -- the Historic Resources Commission, the City, or other interested persons opposing the proposed project bear the burden of proving that the denial of the Certificate of Appropriateness should be affirmed. City of Lawrence, Kan., Code § 22-505(B) (Jan. 1, 2011).
36. The City Commission's determination under the City Code is whether, under the totality of the circumstances, the proposed project would "significantly encroach on, damage, or destroy … the historic district." City of Lawrence, Kan., Code § 22-505(A)(4).