LAWRENCE BOARD OF ZONING APPEALS
Meeting Minutes of August 6, 2015 – 6:30 p.m.
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Members present: Fertig, Gardner, Kimzey, Mahoney, Wilbur
Staff present: Cargill, Day, Guntert, Larkin
ITEM NO. 1 COMMUNICATIONS
Acknowledge communications to come before the Board.
Guntert said staff received two communications related to Item 3 that were included in the agenda packet.
No Board members disclosed any ex parte contacts and/or abstentions from the discussion and vote on any agenda item under consideration.
There were no agenda items deferred.
ITEM NO. 2 MINUTES
Consider approval of the minutes from the July 9, 2015 meeting of the Board.
ACTION TAKEN
Motioned by Gardner, seconded by Wilbur, to approve the minutes from the July 9, 2015 meeting of the Board.
Motion carried 3-0-2. Abstaining were Fertig and Kimzey as they were not present for that meeting.
BEGIN PUBLIC HEARING:
ITEM NO. 3 REAR YARD SETBACK VARIANCE FOR A NEW COVERED PORCH OVER AN EXISTING DECK; 4216 HARVARD ROAD [DRG]
B-15-00355: A request for a variance as provided in Section 20-1309 of the Land Development Code of the City of Lawrence, Kansas, 2015 edition. The request is for a variance from Section 20-601(a) of the City Code requiring a 30 feet rear yard building setback for structures from the property line. The applicant is seeking approval of a 22.5 feet setback for a covered screened deck on the back of the existing residential dwelling located at 4216 Harvard Road. Submitted by Greg Rau with Apple Tree Homes, for Eric Elsinghorst and Susan Egan, the property owners of record. The legal description for each application is found in the respective project case file which is available in the Planning Office for review during regular office hours, 8-5 Monday - Friday.
STAFF PRESENTATION
Guntert presented the item.
Gardner asked if the rear setback for a corner lot is based on the address.
Guntert said the zoning determines the rear yard setback, and for this property it’s 30 feet. He explained that the front of the house is on Harvard Road and abuts the side yard of a house that fronts Wheat State Street. He said a corner lot has the potential for two 25 feet setbacks from the streets based on the way the house is oriented to the adjoining property.
Gardner asked if staff’s recommended condition prevents the owners from making it a sunroom in the future.
Guntert said if they wanted to expand beyond that footprint they would need to come back for another variance. He said new projects would require the appropriate permits and must be within the proposed footprint.
APPLICANT PRESENTATION
Mr. Eric Elsinghorst, property owner, said Apple Tree Homes built the house in 1994 and made the application on his behalf. He was surprised to find that the existing deck was within the setback. He said his neighbors fully support his project. He mentioned that other neighbors were thinking of doing the same thing and were worried they would also have to go through the variance process.
Wilbur asked if this reduces the line of sight.
Elsinghorst said no, the addition would not interfere with the intersection.
No public comment
ACTION TAKEN
Motioned by Garner, seconded by Kimzey, to close public comment on the item.
BOARD DISCUSSION
Mahoney said it seems like a formality.
Gardner said he has no problem with the request.
Fertig said it speaks well that the neighbors are supportive.
ACTION TAKEN
Motioned by Gardner, seconded by Wilbur, to approve the request with the staff recommended condition that the variance is only valid for the covered deck area described in the graphic provided with the application.
Unanimously approved 5-0.
ITEM NO. 4 APPEAL OF AN ADMINISTRATIVE DECISION INVOLVING A CONDITION OF APPROVAL FOR A MINOR SUBDIVISION PLAT INVOLVING PROPERTY AT 2100 BOB BILLINGS PARKWAY & 2131 TERRACE ROAD [SLD]
B-15-00349: Consider an appeal filed by C. L. Maurer, RLA, ASLA with Landplan Engineering, P.A., on behalf of Robert W. & Elizabeth T. Lichtwardt, property owners of record of two undeveloped parcels (2100 Block Bob Billings Parkway) and a developed residential parcel located at 2131 Terrace Road. The appeal challenges a planning staff request for the removal from the face of a proposed Minor Subdivision Plat, Rockledge Addition No. 2, all notes that restrict land use on the property. Notice to the appellant was provided of the Planning Director’s administrative approval of the minor subdivision subject to the removal of
“Notes 1-4 from the face of the Minor Subdivision” by a letter dated June 10, 2015. Section 20-813(f)(1) in the Subdivision Regulations in the Code of the City of Lawrence, Kansas, 2015 edition, provides for an appeal of a decision of the Planning Director to be filed within 30 days of the date of the decision. Said appeal is to be heard by the Lawrence Board of Zoning
Appeals in accordance with Section 20-1311 of the City Code. The legal description for each application is found in the respective project case file which is available in the Planning Office for review during regular office hours, 8-5 Monday - Friday.
STAFF PRESENTATION
Day presented the item.
Fertig said this is the first matter of its kind to come before the Board of Zoning Appeals (BZA). She welcomed any guidance from staff in taking action.
Larkin said when it comes to a plat, the decision to replat or a minor subdivision is a ministerial function- a City planner doesn’t have any discretion, if it meets the code it’s approved. He said staff was willing to approve this project without certain notes on the final document. If those notes were included on the document that would be filed at the Register of Deeds, the application would not be approved by staff. He said the Board needs to determine whether they should uphold staff’s determination or reverse their decision and approve the minor subdivision.
APPLICANT PRESENTATION
Mr. C. L. Maurer, Landplan Engineering, said the owner would like the notes that restrict use and setbacks on the plat so a potential owner or contractor will see it upfront. He said they only have four notes, unlike a covenant which can be 20-30 pages. He understands staff’s concerns, but these are no different than notes on other subdivisions. He said it’s no different than Matt Bond saying structures can’t be in his drainage easements.
Fertig asked if the notes on there are consistent with the current Development Code.
Maurer said the notes were more restrictive than the code requirements.
Gardner suggested they could add language to the notes emphasizing that they were provided for transparency and the restrictions are not to be enforced by the City.
Larkin said the City is obligated to enforce restrictions on the plat, and too many notes on a plat would defeat the purpose of the Development Code. He wasn’t sure if language could be added to make the City exempt from enforcement but it might be possible.
Gardner said he understands both sides of the issue, and asked the applicant if he would be open to a compromise that still provided transparency.
Maurer said his client wants any potential buyer to know what he’s walking into without jumping through a bunch of hoops to see if the property has other private covenants and restrictions.
Fertig asked why the 2007 Land Development Code is the applicant’s proposed standard as opposed to what is found in the current version.
Maurer said the language in the current code is different and allows things to happen on single family lots that weren’t previously allowed. He mentioned that similar language was used for Hutton Farms when it was approved.
Gardner said he did not previously understand that the applicant wanted to adhere to a different Development Code year but feels doing so would create enforcement issues; therefore, he does not support their appeal of the City’s determination.
Larkin said they’re using the 2007 code because the PRD was established before the code changed. He explained that notes on a plat are for the City, whereas the proposed notes are to govern use of the property for the benefit of the owner.
Maurer said the owner should have the same right as the City to add notes to the plat.
Fertig said she believed that is done through the restrictive covenant process.
Maurer disagreed.
Larkin said ultimately, the City must enforce the notes on a plat. He explained that some very old plats have notes that are inappropriate and unenforceable because they are illegal.
Fertig asked what the difference is between this request and the aforementioned recent developments the applicant claims used similar restrictions.
Day said there are a series of prescribed notes and references that subdivision regulations do require which typically have a direct relationship to a code requirement. She said staff is not opposed to the proposed restrictions, but staff can’t be called upon to enforce them if they are noted on a plat. She said staff works very hard to be consistent in responses to development applications.
Mahoney said the question is whether staff made an error in their decision. He asked if the subdivision is automatically approved if the Board does not uphold staff’s decision.
Larkin said it would, and the City would have the option to appeal if desired.
Fertig asked where the appeal would be filed.
Larkin said the District Court.
Fertig asked if the point of putting the notes on the plat is to avoid research by a potential buyer.
Maurer said yes, and because the owner wants the property to remain single family.
Gardner asked what would prevent the owner from disclosing the restriction up front when completing the sale.
Maurer said that realtors don’t always disclose all the facts when selling a property.
Kimzey said he doesn’t understand why the appellant wants to refer back to an old Land Development Code if a more recent code is being used.
Larkin said it would be the City’s preference to use the current code, which is why staff prefers they establish their restrictions as restrictive covenants.
ACTION TAKEN
Motioned by Gardner, seconded by Mahoney, to close public comment for the item.
BOARD DISCUSSION
Mahoney said he likes the idea of putting the notes up front but doesn’t think it’s the City’s job to enforce them. He understands what the property owner is trying to do, but thinks restrictive covenants are a better tool. He supports staff’s decision.
Kimzey agreed.
Mahoney said purchasing a property is a two-way street, and it’s great they want to protect the buyer, but buyers also need to protect themselves through due diligence.
Fertig agreed. She said she understands the owner’s concern about the future of the property, but doesn’t feel the proposed notes should be enforced by the City. She said she’s inclined to uphold staff’s decision.
Wilbur asked how the City would respond if the proposed notes were left on the plat.
Larkin said if it’s on the plat, the City would need to take action.
Fertig said it would trigger a response from the City.
Larkin said yes.
Gardner said when he first asked about compromise he was concerned about transparency, but after further consideration, he feels this could set a precedent and cause repeat occurrences. He supports staff’s decision.
ACTION TAKEN
Motioned by Mahoney, seconded by Fertig, to uphold staff’s determination.
Unanimously approved 5-0.
ITEM NO. 5 MISCELLANEOUS
a) There was no other business to come before the Board.
ADJOURN 7:09