October 17, 2006
The Board of Commissioners of the City of Lawrence met in regular session at 5:00 p.m., in the City Commission Chambers in City Hall with Mayor Amyx presiding and members Highberger, Hack, Rundle, and Schauner present.
It was then moved by Hack, seconded by Schauner, to recess into executive session for one (1) hour to discuss: 1) matters which would be deemed privileged under the attorney-client privilege with attorneys for the City; and 2) possible real estate acquisition. The justification for the executive session is to keep attorney client matters confidential and to keep possible terms and conditions of real estate acquisition confidential at this time. Motion carried unanimously.
The Commission returned to regular session at 6:00 p.m., at which time it was moved by Schauner, seconded by Highberger, to extend the executive session for 20 minutes. Motion carried unanimously.
The Commission adjourned the executive session at 6:20 p.m. and took a short break. The meeting resumed at 6:35 p.m.
CONSENT AGENDA
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to approve City Commission meeting minutes from October 3rd, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to approve Board of Electrical Examiners and Appeals meeting minutes of August 2, 2006; the Public Health Board meeting of August 21, 2006; the Traffic Safety Commission meeting of October 2, 2006; and the Aviation Advisory Board meeting of August 17, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to approve claims to 359 vendors in the amount of $2,818,160.63 and payroll from October 1, 2006 to October 14, 2006, in the amount of $1,655,321.72. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to approve the Drinking Establishment License to Jet Lag Lounge, 610 Florida; New Hampshire Street Bistro, 811 New Hampshire; and Tortas Jalisco, 534 Frontier Road. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to concur with the recommendation of the Mayor and appoint Mike Bowman to the Board of Zoning Appeals/Sign Code Board of Appeals, to a term which will expire September 30, 2009; reappoint Dr. Mark Praeger, Donna Osness, and Sheryl Jacobs to the Hospital Board, to terms which will expire September 30, 2010; and appoint Carol Hatton to the unexpired position held by Ed Brunt on the Mental Health Board, which will expire on April 30, 2008. Motion carried unanimously.
The City Commission reviewed the bids for digester gas compressor separator equipment at the Wastewater Treatment Plant for the Utilities Department. The bid was:
BIDDER BID AMOUNT
Gardner Denver Nash LLC $38,534.88
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to award the sole bid to Gardner Denver Nash LLC, in the amount of $38,534.88. Motion carried unanimously. (1)
The City Commission reviewed the bids for two compact pickups for the Utilities Department. The bids were:
BIDDER BID AMOUNT
Shawnee Mission Ford $21,664.00 ea.
Laird Noller Automotive $21,746.24 ea.
Speedway Pontiac GMC $23,985.00 ea.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to award the bid to Shawnee Mission Ford, in the amount of $21,664.00 each or $43,328.00 total. Motion carried unanimously. (2)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to place on first reading Ordinance No. 8044, annexing approximately nine acres (Pump Station No. 48 site, south of Turnpike). Motion carried unanimously. (3)
Ordinance No. 7999, rezoning of (Z-06-39-05) 12.329 acres from I-1 (Limited Industrial) District and A (Agricultural) District to RM24 (Multi-Dwelling Residential District) was read a second time. As part of the consent agenda, it was moved by Schauner, seconded by Highberger to adopt the ordinance. Motion carried unanimously. (4)
Ordinance No. 8039, for text amendment TA-05-03A-06, adding revisions to Chapter 20, Development Code to make minor corrections and clarifications, was read a second time. As part of the consent agenda, it was moved by Schauner, seconded by Highberger to adopt the ordinance. Motion carried unanimously. (5)
Ordinance No. 8040, for text amendment TA-05-03B-06, adding revisions to Chapter 20 Development Code to make minor corrections and clarifications, was read a second time. As part of the consent agenda, it was moved by Schauner, seconded by Highberger to adopt the ordinance. Motion carried unanimously. (6)
Ordinance No. 8042, condemning certain property interested for the Pump Station sanitary sewer project, was read a second time. As part of the consent agenda, it was moved by Schauner, seconded by Highberger to adopt the ordinance. Motion carried unanimously.
(7)
Ordinance No. 8043, establishing a Pump Station #48 sanitary sewer connection fee, as amended by the City Commission on October 10, 2006, was read a second time. As part of the consent agenda, it was moved by Schauner, seconded by Highberger to adopt the ordinance. Motion carried unanimously. (8)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to adopt Resolution No. 6688, providing for the debt financing of approved Parks & Recreation projects. Clinton Park project was recently approved; other projects are in the planning and development stage and will be presented to the Commission in the future. Motion carried unanimously (9)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to concur with the Traffic Safety Commission’s recommendation to deny the request to revise the City ordinance concerning skateboarding on the University of Kansas Campus. Motion carried unanimously. (10)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to concur with the Planning Commission’s recommendation to approve the Preliminary Development Plan (PDP-08-09-06) for Pine Ridge Plaza Addition for the construction of 7,373 square feet of additional commercial space; the property is generally described as being located at 33rd and Iowa, subject to the following conditions:
1. Provision of a revised Preliminary Development Plan to:
a. Correct spelling of property owner for Lot 1B,
b. Correct landscape plan per staff approval,
c. Correct building summary shown in parking summary to match that of proposed,
d. Correct parking summary to show consistent number,
e. Correct use restrictions to include retail liquor sales permitted for World Market
Motion carried unanimously. (11)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger to approve and authorize drafting of an ordinance for text amendment (TA-07-06-06) in considering revisions to Chapter 20, Development Code to correct inconsistencies since approved. Motion carried unanimously. (12)
Robert Lewis pulled for separate discussion the Traffic Safety Commission’s recommendation to establish “No left Turn 7:00 a.m. – 9:00 a.m. and 4:00 p.m. – 6:00 p.m. Monday – Friday” on Iowa Street at Orchard Lane, Oxford Road, Stratford Road, and University Drive on a 90 day trial basis. He said he was shocked when he found the City had been considering no left turns on Iowa onto University, Stratford, and Oxford and placing traffic on 15th and Harvard. He said the traffic would be increased two to three fold by Hillside grade school that started at 8:45 in the morning. He said they were directing traffic from 7 – 9 by a grade school front door. He said in the evening again, no turns were allowed. He said most of the traffic coming into this area during those hours in the morning was from KU students parking along the streets. He said the streets were narrow and many of the streets had no parking on either side. He said where there was parking the width of the street for two vehicles to pass was such that if not crowding on either side next to the curb or to the vehicle, mirrors would be hit because that incident happened to him last week.
He said the other alternative was 15th Street because there was a nice wide turn with stop lights, but coming up that steep hill, one could not see the traffic until getting to the intersection and there was no left turn lane and no parking. The Catholic Center had an issue with traffic when that center was built a few years back.
He said there were stop signs by the school in that area and a person would be surprised by how many traffic, yield, and stop signs disappear during a school year. He said he had complained to the police about the speed the students drive on some of those streets and received no response. Also, he said there had been two cars in his front yard in the last three months.
Tammy Becker, Principal, Hillcrest Elementary School, said for several years Harvard Road had been a concern because of high traffic due to the University. She said two weeks ago, they were working with the City on parking issues at Harvard. Although she knew it was a 90 day trial period, she had a concern about increased traffic. There were 14 busses that arrived at Hillcrest on a daily basis and they were a cluster program so they transport a lot of students from all over town. Her concern was not only the increased traffic and safety issues that traffic would cause, but also the traffic congestion that was going to probably increase due to busses trying to turn onto Harvard and then onto Iowa with traffic going east and west on Harvard due to Harvard being one of the areas where a person could turn left.
She said she was present as a representative from Hillcrest and felt that it was her responsibility. She said she had talked to school district personnel and they also expressed their concern and did not understand the actual proposal.
Mayor Amyx asked if Becker was notified this item would be before the Traffic Safety Commission.
Becker said no, but wondered if Mr. Rick Gamill was notified. She said Gamill indicated he was not aware of how the proposal was written and encouraged her to attend the meeting to express concern. She said Harvard Road had always been a traffic concern to their school.
David Corliss, City Manager, said he talked to Gamill earlier today and understood the school district was not notified which was not a preference in these types of matters.
Mayor Amyx said after reviewing the Traffic Safety Commission minutes, there was no public comment which led him to believe if their notification worked. He said Lewis presented new information that should have been considered closely, especially because of the question of back up traffic in the area. He said it would be wise for this item be sent back to the Traffic Safety Commission to reconsider with the additional information along with proper notification for that meeting.
Lewis said if a person was in the first, second or third automobile when the lights turn at Harvard going south, there would be no trouble making that left hand turn, but persons in the back would have trouble with that turn. He said if the City would time those lights versus the lights at 15th Street, some of the problem could be alleviated.
Corliss said they would have David Woosley, Traffic Engineer, look at those ideas. He said the signalization coordination on Iowa did lend itself toward delays on some of the side streets and some of the turning movements in order to try to move the traffic along Iowa in a normal progression based on certain speeds.
Lewis said regarding 15th Street, if there were enough people turning on that street north, traffic would be backed up to the stop sign coming from the west because there was so much traffic coming from the University. Again, that was a bad intersection because of the steep hill and traffic could not be seen only until getting to the intersection.
Commissioner Rundle said he saw where they had presented crash incidents to the Traffic Safety Commission, but could not tell if there was any discussion or presentation about the traffic counts, if it existed at all, for those turns on those streets that were being temporarily closed. He asked if that were relevant to this discussion to see what kind of impact that would really have.
Mayor Amyx suggested referring this item back to the Traffic Safety Commission with additional notification to the school district and neighbors of a public hearing along with the additional information that was presented.
Commissioner Schauner suggested the Traffic Safety Commission receive a copy of the City Commission’s minutes so the public comments could go back to the TSC.
It was moved by Hack, seconded by Highberger, to refer back to the Traffic Safety Commission the recommendation to establish “No left Turn 7:00 a.m. – 9:00 a.m. and 4:00 p.m. – 6:00 p.m. Monday – Friday” on Iowa Street at Orchard Lane, Oxford Road, Stratford Road, and University Drive on a 90 day trial basis and with the understanding the Traffic Safety Commission would review the October 17th City Commission meeting minutes specifically the public comment on this topic. Motion carried unanimously. (11)
CITY MANAGER’S REPORT:
During the City Manager’s Report, David Corliss, said the City Commission had received a Utilities Department report regarding the waterline project. He said staff would use this information in additional discussions with the businesses and property owners in the downtown area as the plan was worked for the waterline project for next year. He said there were positive and challenging comments in that report as well that staff wanted to respond and make the project better next year.
Also, the Commission received some good financial information and use information about Eagle Bend Golf Course.
The City had a successful “Communities in Motion Day” where staff thanked a number of the riders in the “T” system.
Finally, he said the Commission received information about the work with the Street Division. He asked Chuck Soules, Public Works Director, to brief the Commission about the progress of the road construction in front of City Hall.
Chuck Soules, Director of Public Works, said the base, where it failed, had been replaced along with the curb, gutter, the median island, and the ramps at the crossing. The intersection at 7th and New Hampshire had been replaced and the entire intersection was now completed and opened. He said New Hampshire would be three lanes wide with one lane in each direction and a center turn lane. The handicapped ramps were new and compliant with the new code that was adopted. He said the joints had been reinforced and had been crack sealed and those improvements should last through the years. He said two pedestrian crossings were constructed, one crossing near the Farmer’s Market on New Hampshire between 8th and 9th Streets and the other crossing between 6th and 7th Street.
The crosswalk in the front of City Hall had 1˝ inch brick pavers, but was replaced with colored stamped concrete which was done throughout the downtown area. He said, in the past, the Street Department had spent hours repairing crosswalks in the downtown area because of the brick settling and moving, but the stamped concrete methods should alleviate much of that maintenance. He said an incentive was offered for completing the project ahead of the November 3rd completion date.
Commissioner Hack said she and Crystal Miles, Horticultural Manager, discussed the possibility of large, above ground concrete planters that would add some color to those intersections, but would be large enough so no one would walk away with those planters. She asked staff to look into that idea.
Soules said staff would want to make sure the visibility for pedestrians could be maintained using those planters.
Commissioner Schauner said the 7th and New Hampshire intersection was a lot better than it used to be. (14)
REGULAR AGENDA ITEMS:
Conduct a public hearing on the following proposed special assessment benefit districts:
Construction of a west bound left turn lane and an east bound deceleration lane on Kansas Highway 10 at the intersection of E 1600 Rd.
Mayor Amyx called a public hearing on the proposed special assessment benefit district for the construction of a west bound left turn lane and an east bound deceleration lane on Kansas Highway 10 at the intersection of East 1600 Road
Chuck Soules, Public Works Director, presented the staff report. He said, last April, the City Commission approved the construction of the left turn lane south bound onto O’Connell and that benefit district was established. With the continued proposed developments (Fairfield Farms, east and west) an eastbound right-turn was also necessary. He said combining those projects into a larger project should improve construction costs.
He said the method of assessment would be based on square footage and no City participation was proposed in this benefit district with an estimated cost of $794,000. He said the City Commission would need to open a public hearing pending comments on the resolution.
Upon receiving no public comment, it was moved by Hack, seconded by Highberger to close the public hearing. Motion carried unanimously.
Moved by Highberger, seconded by Hack , to adopt Resolution No. 6686, ordering the construction of public improvements of a left turn lane, west bound on Kansas Highway 10 (K-10) at the intersection of East 1600 Road (O’Connell Road), and an east bound deceleration lane on Kansas Highway 10 (K-10), at the intersection of East 1600 Road (O’Connell Road) and other necessary and appropriate improvements. Motion carried unanimously. (15)
Consider approving the following items related to 917 Delaware:
a) Conduct public hearing to appeal the Historic Resources Commission’s denial of DR-06-63-06 (917 Delaware) to determine, based on a consideration of all relevant factors, if there is a feasible and prudent alternative to the proposal outlined in DR-06-63-06 and if the program includes all possible planning to minimize harm to the listed property.
b) Consider adopting findings of fact, approving rezoning and annexation requests, and authorize drafting of ordinances for placement on future agenda on Z-06-14-06: A request to rezone a tract of land approximately .134 acre from RS-2 (Single-Family Residence) [RS7] to CN-1 (Inner Neighborhood Commercial). The property is located at 917 Delaware.
Mayor Amyx called a public hearing to appeal the Historic Resources Commission’s denial of DR-06-63-06 (917 Delaware) and consider adopting findings of fact, approve the rezoning (Z-06-14-06) and annexation request for a tract of land approximately .134 acres, from RS-2 (Single-Family Residence District) [RS7] to CN-1 Inner Neighborhood Commercial.
Sandra Day, Planner, presented the staff report. She said since the two items overlapped, staff combined the presentation. Staff would introduce the subject area, discuss the Historic Resource Commission’s actions, and conclude with the Planning Commission actions.
The subject property was located on Delaware which was in the East Lawrence neighborhood. The surrounding zonings for the subject property included both residential and industrial zoning districts. The industrial zoning district was located on the north and east side and the existing residential neighborhood and the residential zoning was located on the south and the east. She said when receiving a development review request that included multiple advisory board consideration, the procedure was having those boards consider their actions prior to the Planning Commission review.
Lynne Braddock Zollner, Historic Resources Administrator, said she would discuss the appeal request of the design review case. This case was a review of 917 Delaware, which was located within the 500 foot notification boundary of the East Lawrence Industrial District. The district was currently listed on the Register of Historic Kansas Places, pending National Register listing, which should be by the end of the year.
She said it seemed odd the HRC was looking at a rezoning request which caused confusion to a number of people and wanted to discuss why the HRC was looking at this particular request. The City of Lawrence had an agreement with the State Historic Preservation Officer to conduct state law reviews on a local level and the Historic Resources Commission conducted those reviews on behalf of the City.
When the statute and its regulations were laid out, rezoning was specifically an item that was to be reviewed under the state preservation statute and even though it was use oriented rather than new construction oriented, the law was designed to review for its impact on the list of property and the environs of the list of property. Normally, within their course of action, the Historic Resources Commission had established an administrative review list. Rezoning was something that staff reviewed administratively and those rezonings rarely went to the HRC. She said typically, rezoning requests comply with the Comprehensive Plan and with items laid out in the guidelines for reviewing those requests. She said staff could not recommend approval on this rezoning based on the standards and guidelines. Therefore, the rezoning request went before the HRC for a public hearing. The HRC, like staff, must use the standards and guidelines for evaluating the effective projects on the environs. The pertinent section on rezoning was listed in the staff memo.
The standards for rezoning recommended maintaining zoning that continued the histories land use in the environs of a listed property; It also stated when rezoning was required within the environs of a listed property, the impact of the rezoning should be considered and steps taken to mitigate the adverse effect of any rezoning.
She said rezoning was not recommended to allow development that was incompatible or inconsistent with the character of the environs; speculative or spot zoning without a well defined use for the property that was compatible with the environs; and, any rezoning without design documents indicating the compatibility of the proposed new use addition and/or infill construction.
On September 21, 2006, the Historic Resources Commission did hold a public hearing for Design Review 06-63-06, which was the rezoning for 917 Delaware and found, in accordance with the standards and guidelines for evaluating effective projects on the environs, the project, as proposed, did not meet the standard of evaluation and did encroach upon, damage, or destroy the listed property or its environs. Specifically, based on the guidelines they looked at, the rezoning request did not continue the history land use and the environs of the listed property. Currently, there were no mitigation document for the adverse effects of the requested rezoning and no design document indicating the compatibility of the proposed new use.
She said a mitigation document was a document that set out and identified each adverse impact on the listed property and then what steps would be taken to mitigate that adverse impact. A design document was something that would specifically speak to design guidelines that would outline any new construction that might have to take place on the property to allow it to be the proposed new use, such as handicap accessibility ramps, new structures on the site, that design document would speak to how those new projects would be compatible with the environs of the historic district.
The State statute also set up an appeal process if the applicant did not agree with the decision of the Historic Resources Commission. An appeal could be made to the City Commission, which was why she was before the City Commission. The City Commission must hold a public hearing to determine if there was a feasible and prudent alternative to the proposed project. If no feasible or prudent alternative was available, the City Commission should determine if all possible planning had been done to minimize the harm to the listed property associated with the project.
She said in the regulations associated with the statute, there was a definition of environs and one thing it called out as a relevant factor was the use of the area which was reviewable. Feasible and prudent alternatives were also identified in the staff memo. Several issues included were: technical issues, design issues, the project’s relationship to the community wide plan and economic, issues.
The Historic Resources Commission did not approve the project and staff recommended the City Commission hold the public hearing to determine if there was a feasible and prudent alternative to the proposed project and the program included or did not include all possible planning to minimize the harm to the listed property. Staff recommended that if the City Commission determined there were no feasible and prudent alternatives to the proposed project, that mitigation and design guidelines documents be submitted by the applicant and approved by the HRC to provide for all possible planning to minimize harm to the listed properties.
Commissioner Rundle asked if the Secretary of Interior standards did not apply because they generally did not have anything to do with zoning and use. He asked if that was the reason why that kind of criteria was used.
Zollner said that was correct. She said had the property been listed, they would have been using the Secretary of Interior standards, however, it was within the environs so they had to use the standards and guidelines of evaluating projects for their effect.
Commissioner Schauner asked if the term “no feasible and prudent alternative” was a reference, standard, or test to be used that would apply to the property itself. He said what needed to be found was “no feasible and prudent alternative” to the use of 917 Delaware.
Zollner said they would apply it to the proposed project. She said for the rezoning what they would be determining was whether or not there was a feasible and prudent alternative to the rezoning of this property.
Commissioner Schauner said arguably one might believe the feasible and prudent alternative would be its long standing use as a residence.
Zollner said that was for the City Commission to determine.
Commissioner Schauner said he understood, but it would be at least one version of a feasible and prudent alternative.
Zollner said the definition shown in the standards was pretty broad as to what the City Commission determined as feasible and prudent.
Commissioner Highberger said the findings, whether it was feasible and prudent, was a second step, but in order for that finding to happen, they needed to concur the proposed use actually did cause harm to the listed property.
Zollner said the statute was written rather strange, so what the HRC used as their findings of facts was not necessarily what the City Commission had to look at. She said the City Commission, according to the state statute, needed to look at whether or not there was a feasible and prudent alternative and if all planning had been done to minimize harm. She said the City Commission did not necessarily need to make a finding that it encroached on, damaged, or destroyed the property.
Mayor Amyx asked if the City Commission had to make a decision on the appeal of the Historic Resources portion of this prior to the request of the rezoning.
Zollner said staff presented all of the information to save time, but the City Commission could discuss the HRC determination before the rezoning portion.
Corliss said the Historic Resources Commission had made a determination about the encroachment and under state law the City Commission could review that determination to see if there were any alternatives. The finding of encroachment had already been made and that was the HRC decision; they were acting as the state in this situation. He said the governing body’s determination was whether there was a feasible and prudent alternative and all planning had been done to minimize harm.
Commissioner Schauner said in this case they had a built project and it was not a proposed project. He said he was trying to find out what the test was for determining “feasible and prudent” because he thought typically that was a looking forward test rather than a looking backwards test.
Vice Mayor Hack asked if “feasible and prudent” go hand in hand with the mitigation portion to show that there had been or would be no damage to the environs.
Zollner said it was staff’s opinion, in order for this body to make a judgment that all planning had been done to minimize the harm that those mitigation documents and the design guidelines document should be in place. She said that was a staff opinion.
Commissioner Schauner said the HRC had made a decision that there was an encroachment. He asked whether there was any other feasible and prudent alternative to the encroachment that had occurred or might occur if a project were completed. He asked if he had accurately stated that question.
Corliss said yes and Commissioner Schauner was also identifying one of the difficulties that there was essentially no change in the built environment. He said in most cases where they were faced with this issue, was someone wanted to destroy something that was part of the historic fabric. He said in this case it was an existing structure and the issue was the use.
Commissioner Highberger asked Zollner if the HRC decision was based on the potential impact of all the potential uses under CN-1 or on the Krause’s proposed use.
Zollner said to paraphrase the HRC minutes, she thought they saw the discontinuation of this structure as a single-family residence only and changing the histories of the land use for that piece was the encroachment.
Commissioner Rundle suggested hearing staff’s entire presentation.
Day said the focus of Planning Staff’s review was the analysis of the suitability of the subject property for commercial zoning. What staff identified was two identified inner commercial nodes identified in Horizon 2020 that were located in the East Lawrence neighborhood. The first area would be located along 9th Street from Rhode Island to the east. The other identified location was at the southeast corner at 12th and Connecticut. There was also additional commercial added through the 8th and Pennsylvania project. She said typically, in the East Lawrence Neighborhood that commercial was located along the 9th Street corridor and at different intersections within the neighborhood. She said much of the neighborhood was still residential. The commercial pattern, staff concluded, was not there to support the applicant’s request. Staff did not find documentation in Horizon 2020 or in the East Lawrence Neighborhood Plan to support adding new commercial zoning areas to the neighborhood.
Staff also looked at an assessment of the subject property as it related to its surrounding use. The subject property sat above the street level and there were two sets of steps that bring one up to the front of the structure. The building immediately to the north had a large driveway that provided overhead garage access at the street level and in the Allen Press parking lot was also at that street level. There would be vertical separation between residential and non-residential portions of this neighborhood.
She said staff provided images to give the City Commission a sense of what the streetscape was like. Behind the landscape area were the additional residences on the other side of the street. An overall area of the subject property was very small, making it difficult to be compliant with required commercial design standards of either the old or new code. One of those would be provision of parking. She said while this was not an assessment of the site plan element, it was an assessment and evaluation criteria if the property was sufficiently large enough to accommodate the necessary activity that would be associated with commercial development or activity.
The subject property, the zoning boundary that separated the non-residential from the residential parking lot, showed quite a bit of landscaping providing shade over the parking lot. This was the area that the applicant was exploring for a shared parking agreement so they would have access to off-street parking for their business if this was approved, but the landscaping did lend itself to a residential application. The driveway was relatively narrow and the driveway pattern was set back from the street which helped to preserve the change of the residential areas further to south of the subject property.
On grade access to the subject property was provided from the alley. She said that had also been one of staff’s concerns or objections that either ADA access would need to come through the alley because that was the closest at grade level or whether or not their deliveries were being provided from the alley because it was relatively unimproved and gravel. That commercial activity in this area provided predominately residential service to the residences that abut the alley on both sides of the alley in this area. The property did have parking for the residential use both from the garage that was recently constructed and there was a small pad site. She said there was adequate residential parking for the property.
This item went to the Planning Commission twice and initially started with the Planning Commission in August in which staff recommended denial of the proposed rezoning request. Staff found it was not consistent with the Comprehensive Plan, the Neighborhood Plan, the surrounding land uses, and the other findings that were summarized in the staff report. The property was suitable for residential use to which it was currently restricted, and staff recommended denial.
The Planning Commission through discussion with the public and the applicant seemed to indicate the support of the proposed request. Toward the end of the meeting, they directed the applicant in August to meet with the immediate abutting resident and the neighborhood association to develop a set of stipulations or criteria to look at a restricted kind of zoning. That item was deferred to the September meeting at which time in preparation for that meeting, staff prepared an alternative set of findings. Those findings were based on the Planning Commission’s discussion, comments from their August meeting about the proposed request that were provided as a summary to help the Planning Commission through their public hearing. It did not change staff’s recommendation which was still included as a recommendation for denial. She said staff wanted to help the City Commission understand why there were two sets of findings of fact.
Ultimately, the Planning Commission in September recommended by at vote 7-2-1 to recommend approval of the CM-1 zoning based on those alternative findings of fact and they also conditioned, or added stipulations that were attached to the staff report. She said she believed the applicant and the staff were in agreement of those stipulations that if it were approved, those stipulations seemed to address the requirements of most concern. She said there would be other processes and they would need to complete the site plan process if the City Commission were to approve this.
Commissioner Highberger asked Zollner if a restaurant was an acceptable use in the proposed 800 Block of Pennsylvania project.
Zollner said that was correct.
Mayor Amyx said part of the HRC and City Commission consideration was to look at the proposed zoning and what affect it would have on properties that were listed in the 800 Pennsylvania area and asked if that was the area they needed to look at and make a determination if there was a feasible and prudent alternative.
Zollner said the Historic Resources Commission was charged with deciding whether or not the proposed project would encroach upon, damage or destroy the environs of the listed property. The HRC’s determination was based on those guidelines that were set up for them to review, that it did indeed damage or destroy those environs. The City Commission was to look to see if there was a feasible and prudent alternative to the project and if there was not, had all planning been done to minimize the harm to the listed property.
Commissioner Schauner said that worked well if there was a proposed project, but it did not work well if the project was already completed.
Zollner said the proposed project was the use and the use was something that was identified in the state statute as something that could potentially harm the listed property.
Vice Mayor Hack asked if the Commission found there was no feasible or prudent alternative, then the Commission needed to also find the mitigation and design documents were in place.
Zollner said it was staff’s recommendation for the City Commission to be able to say that all planning had been done to require those documents to show the planning had been done, otherwise there could be challenges as to whether their planning was done if there was no documentation that planning was actually done to mitigate the harm.
Commissioner Schauner asked if the planning had been done.
Zollner said she did not have a mitigation document or design guideline document.
Mayor Amyx asked if that was why there was a recommendation for denial, because staff did not have the documents at hand.
Vice Mayor Hack said no. She said this was not a site plan, but a zoning. She asked if those documents would appear with the site plan.
Zollner said no. The documents would be part of this Commission’s action to determine whether or not all of that planning had been done. She said those were considered planning items, the mitigation document and the design guidelines document would be the planning documents that would show that all the planning had been done to minimize harm.
Mayor Amyx said when looking at this project for a specific use on that particular piece of property and it was a quality restaurant, he asked if the City Commission was to make a determination on whether or not there was some other use that was more prudent and feasible for that piece of property.
Zollner said yes.
Commissioner Schauner asked if there was not already a feasible and prudent use currently in operation, specifically a residence.
Zollner said there was a residence and she believed a catering business.
Commissioner Rundle said since the assessment revolved around the rezoning, he thought it was both the use and the zoning that were part of the feasible and prudent, not just the use.
Commissioner Schauner said it was his understanding the home operation of catering was permitted under the current zoning as a home operated business.
Zollner said that was correct.
Commissioner Schauner said if there were to be an approved use as a restaurant at that location it would require a change in the zoning for that property.
Zollner said that was correct, under the current code.
Commissioner Schauner said the only zoning request before the City Commission was for the 1.34 acres of 917 Delaware, not for any other properties in the area.
Zollner said that was correct.
Korb Maxwell, Polsinelli/Shalton/Welte/Suelthaus, said he was appearing on behalf of Robert and Molly Krause. He said he had a presentation that focused on both pieces of this application, both the rezoning and the HRC appeal.
He said they were discussing 917 Delaware which was currently zoned as a RS-7. The uses allowed under the code and that were happening in the property as a single family home and a catering operation. The requested zoning application was for CN-1 zoning and the uses they were requesting were for a single-family home, a catering operation, and private dining. Private dining was important because it really got to the heart of what the Krause’s wanted to do, what they were all about, and the operation they wanted to have in this home. He said what they defined private dining as was a quality restaurant under the zoning code. He said if going into the code and really reading what a quality restaurant was under the Lawrence Zoning Code, it meant a restaurant that was not fast food that served at a table, sit down dining. He said private dining was reservation only with limited serving, limited service hours, and limited service days. He said when they put all of those things together, just for the pure economics of it, it becomes gourmet dining. He said if they were only going to be serving a certain amount of people on a certain day at very limited amounts of time, it became gourmet dining. He said they wanted to have private dining that was reservation only for limited people to come at limited amounts of time to have limited impacts on the neighborhood to come into their home and dine with them.
In 2000, the Krause’s purchased 917 Delaware and had come back to Lawrence from time away in San Francisco and decided to make Lawrence their home and purchased their home where they planned to run a catering operation out of their house. They began that catering operation and it went over like gang busters and it went fantastic. He said at that time, their clients, through multiple requests, continued to ask when they could have a restaurant. He said it was at the request of their clients and from that they began a private dining operation in their home which began in 2001.
He said in 2005, after operating the private dining for four years, there was a glowing Kansas City Star article that came out that suggested that Kansas City was jealous they did not have the Krause’s. He said he believed the article was read by the Fire Marshall, and out of that, the zoning began to be investigated and a zoning enforcement letter was sent when they realized the zoning did not comply with the code at that time. He said at that time, the Krause’s immediately stopped the operation at 917 Delaware and they moved their operation to 811 New Hampshire.
He said they ran that operation at 811 New Hampshire for over a year and an important point to make was the operation at 811 New Hampshire was successful and they were doing well. He said it was not anything financial to why they left the location at 811 New Hampshire, but the Krause’s did not want to run the standard commercial restaurant that someone would find in a commercial space. He said they did not want the all day service where there was multiple staff, multiple cooks, open all the time, looking at turning over table tops to end up paying the bills and the mortgage. They instead wanted a different type of operation of private dining that was so limited in character. He said that was when they began to look and knew the rezoning code was changing and the rezoning code had undergone amendments that they began discussing with Planning Staff the alternative of moving back to 917 Delaware. He said given what the Krause’s wanted to do, this was their alternative and it was the decision because it made most sense for the Krause’s and they thought it made the most sense for the Lawrence community as a whole.
He said the path to returning to 917 Delaware that had been laid out that night had several steps, which first was the approval of the rezoning to the CN-1 neighborhood, historic approval, and the site plan review and approval which would happen if they would be so lucky to move forward with the approval of this body and would happen with staff after this approval was completed.
The rezoning application was truly a question of use and it was different than the rezoning applications that were often seen because they were not looking at density and parking and other design issues that were often looked at in rezoning applications. He said they were looking at one single thing, was private dining at 917 Delaware a reasonable and proper land use. He said the reason in support was because of the surrounding land uses, improved property, and was truly a community asset in the low impact.
The surrounding land uses caused it to be a mixed use area. The City was in the process of approving the 800 Pennsylvania project, which was truly mixed use where vertical mixed use would be brought in along with the horizontal mixed use that was the East Lawrence Neighborhood, and particularly, the Krause’s’ property and what was right next to it. He said within a stone’s throw of the Krause’s’ property were, industrial, commercial, and residential uses of land. The Krause property was surrounded on both the north and east side by heavy industrial uses, just to the north of the Krause property was the Lawrence Bus Barn and across the street from them was Allen Press. He said it was heavy industrial right next to their home. To the south and west was also residential properties, but there was CS zoning and commercial zoning. Also, that IG block, part of it was changing when going on the other side of 900 Delaware because all of that area was rezoned to C-5. He said there truly was a mixture of commercial, industrial, office, and residential that happened within that neighborhood.
The improved property was no longer just a single-family home. He said that home was set up for having private dining and very limited commercial use happen within the home. He said most importantly all the structures currently existed. He said there was very minimal construction or improvements necessary and the minimal construction improvements were items like ADA compliance, simple items to step in make the property fit and work, but there was no wholesale construction that had to be done.
He said this project did not totally go to 100% of the factors that were looked to land use decisions, but it was something that was discussed a lot at the Planning Commission meetings that the Krause’s truly were a community asset. He said one of the pieces where it did fit into a land use was that when looking at the East Lawrence Neighborhood Revitalization Plan, one of the things it encouraged in that comprehensive plan document was the East Lawrence Neighborhood was mixed use, but it supported artists and artisans. He said they would put forward that a gourmet cook that wanted to operate the type of facility the Krause’s wanted would fit within that field. Also going to the point of what the Krause’s wanted to do was a unique focus on quality and customers and they always tried to use local farmers’ material and merchandise in their operations.
He said when looking at the rezoning applications they were looking at what the applicant wanted to do and if it would work, but also what impact that business had on the surrounding neighbors and neighborhood. He said in the past, this operation operated for four years, and there were no complaints, problems, or issues that were raised during the time they operated in their house. He said he only put that forward because it showed the low impact nature of what the Krause’s wanted to do. He said they were asking for a very limited commercial restaurant use. He said much of the discussion at the Planning Commission with staff, with the East Lawrence Neighborhood Association, was the fear of the unknown. If they opened it up, could there then be any of those other items that were allowed in CN-1 zoning or under heavier commercial zoning. He said they were not asking for any of those, the only thing they were asking for was the quality restaurant and that was contained in the stipulations that were approved by the Planning Commission, reviewed by the City staff, reviewed by the East Lawrence Neighborhood Association general membership and generally approved. It was due to those reasons, stipulations, and staff’s alternative findings of facts that they placed before this body because the City Commission had the authority, the decision made sense, the land use was reasonable, and they asked for the City Commission’s support of this application. He said he would state for the record before the City Commission and stated it before the record on the Planning Commission, they did agree with the stipulations that were proposed and they worked along with staff to draft those stipulations, but importantly the Krause’s agreed, understood, and were ready to make part of the record if this was approved, stipulations A – I.
Concerning the historic appeal, the Krause’s were within 500 feet of the East Lawrence Industrial District and because they were within 500 feet, they were subject to another level of review. He said they were subject to the review of the Kansas Statutes that asked the question if they encroached upon, damage or destroy the historic property or its environs. He said he was saying that with all due respect because he understood the time and effort that volunteer boards put into this and the time the Historic Resources Commission looks at it and that they volunteer their time to protect the historic assets of Lawrence, but just as they were struggling and sensed a little bit of struggle in the questions asked by the City Commission and the struggle that he had in discussing this several times with Zollner, it was difficult because it was different than all the other historic reviews that normally happened. He said historic reviews happened on design criteria and on what types of materials were going to be placed on a historic property. Those reviews almost never happen on a rezoning that was happening internal to a building that then was not constructing anything. He said he would make the case the reason rezoning was included as one of the items that were usually reviewed by Historic Resources Commission was because with rezoning something was then going to be built. He said they were not going to build anything. He said respectfully, he thought the Historic Resources Commission had it wrong because in their minutes it stated that too. He said in that hearing, there were several comments made by several Commissioners that when looking at their standard, they asked, did it encroach upon, damage or destroy the historic property or its environs, they actually said “no”, but all of the other planning and policy issues they were trying to work out in a set of stipulations and in an agreement with their neighbor and adjacent neighbors, all of that had not happened at the time they met with the Historic Resources Commission. He said those were many of the concerns that were brought up by the HRC. He said that being said, it was water under the bridge and they now had a new standard that they were looking at because the City Commission, under Kansas law, looked at a different standard. He said the governing body had made a determination based on a consideration of all relevant factors that there were no feasible and prudent alternative to the proposal. He said he wanted to highlight the “proposal” and the program included all possible planning to minimize harm to such historic property. He said he thought was what key about that language was that it was the proposal. He said they were not looking at the feasible and prudent alternatives to other parts of the district or if they were asking for a different rezoning or if they were asking for a different type of use; it was actually that proposal. He said in looking at that proposal, and it was the part that was specific to the Krause’s, from the Krause’s perspective there was no alternative. He said they did not bring up this process lightly and did not appeal the ruling of the HRC lightly and did not go through the rezoning process lightly. He said the Krause’s knew, the neighborhood knew, they had been working with them in good faith for months and months, they had been working with staff, and everyone who had brought up a concern on this item to try and create buy in and make sure that any concerns were taken account for. He said out of that, he would say all of that effort should prove one thing, which was this was not taken lightly and it was done because truly they believed it was the only place where they could run the restaurant and the type of operation they desired and they would like to bring back to the City of Lawrence.
The next part was the program that included all possible planning to minimize harm to such historic property for such use. He said Commissioner Highberger brought up a very good point in his question that the historic district they brought forward and was created with this Commission’s assistance, just a few months ago, was mixed use in character. The use they wanted in that property was commercial, industrial, office, residential, all to be able to happen within that. He said they, too, were planning mixed use, a mixture of residential and commercial in a limited basis in one property. He said they could go back and look at the map. He said the environs, if they were asking, if they hurt the environs, the environs were mixed use and had commercial, industrial and residential. He said limited to no construction, he thought that in it showed there were no design issues going on or problems that would hurt the environs and show they had minimized all harm.
He said if they asked for mitigation document, it was stipulations A – I was their mitigation document. He said they could serve as a mitigation document for this Commission. He said those stipulations took into account all of those possible issues or adverse impacts they could have on the neighborhood or the historic property. He asked that those stipulations be used as the mitigation document to show that all possible planning had happened and they had minimized the harm to the historic property.
Lastly, regarding the request for a design document they needed that document. He said were not asking to construct anything and everything that was necessary was already on the property. He said he thought the application could move forward with an approval for the rezoning and an overturning of the HRC’s decision by this body through following the standards that had been laid out. He said he would ask that this body take those actions tonight, both approving the rezoning and approving their appeal to the Historic Resources Commission.
Commissioner Rundle asked if Maxwell understood, as an attorney, that land use decisions attached to the property carry into the future and it was not just the current use they were asking for, but a land use change that came with it a broader collection of uses. He said they knew the Krause’s did not want to do those incompatible uses, but the permission existed nonetheless.
Maxwell said he was an attorney and the only type of law he practiced was zoning, land use, planning, and economic incentives. He said he did that work every night in working through jurisdictions throughout Kansas and Missouri on those zoning issues. He said he understood that zoning attached to the land and zoning was not about the Krause’s because this was a land use decision that was before the City Commission. He said while talking about the restaurant, his presentation also focused on many of those issues that just dealt with the land. He said the important point regarding opening up the door, was the door had been firmly shut by the stipulations they proposed that were a companion to the rezoning. Stipulated zoning was an agreement between the City and the applicant and if the governing body approved the rezoning that would give them the rights to have all of the different uses that would happen in the code. He said he was agreeing to limit himself, his applicant and this property that although they were zoned to CN-1, the only things that could happen on this property were those uses that were previously allowed in RS-7 and were in the CN-1 category and the quality restaurant use, and that was stipulation number 1 and the most important stipulation to the zoning. He said while yes, it was a land use decision, they could narrowly tailor the blunt object that was Euclidean zoning and narrowly tailor that down to meet their means and their means there were they just wanted the quality restaurant use. He said they had tailored the tightest set of stipulations they possible could that yes, change the zoning, but left this application as allowing only those uses in RS-7 and CN-1 and a quality restaurant.
Commissioner Schauner said he had a question whether Kansas courts honored contract zoning. He asked if Maxwell knew of any case in Kansas that would demonstrate the courts had supported the enforceability of contract zoning.
Maxwell said this was not contract zoning, but conditional rezoning. He said there was a big difference between contract zoning and conditional zoning.
Commissioner Schauner said the City Commission had been told by the City’s legal staff there were no cases in Kansas that supported the concept of conditional zoning.
Maxwell said the City’s Legal Staff was absolutely correct. He said he would forward to the Commission the reason there was no case directly on point was because no one had a problem with it. The applicant was the one that agreed and usually the one that would bring the suit. He said the City was the one that agreed with the conditional zoning. He said it was a very hard issue to get right. He said when coming to a set of conditions that worked, they would almost never end up in a case where they would have lawsuit. He said in a general basis, conditional zoning could be looked at across the nation and the far majority of jurisdictions accepted conditional zoning. He said the courts would often opine on the fact that conditional zoning was a good thing.
Commissioner Schauner asked Maxwell to respond to the staff review on page 8 of the staff report dated September 27, 2006. He said staff started with, “The subject property is insufficient in size to accommodate the proposed use required buffering screening, setback requirements, and off street parking.” He asked Maxwell how he would respond to those concerns from staff.
Maxwell said he did not believe that was true. They had been able to work through those rezonings. He said when he said he did not believe it was true, those were correct statements that Day and the staff had made. There were additional means through the code, such as a parking agreement, where parking could be done off site. He said that was what stipulated that a parking agreement would be required within those stipulations and that was the indication they had from several of their neighbors that a parking agreement would be acceptable and they would enter into one. He said he forwarded a parking agreement to the legal staff and planning staff and they reviewed it and said that it would work. He said to the other points of looking at setbacks and so forth, the structure was already built and it would be a non-conforming structure. He said it stated there should be a 20 foot buffer, but the buffers were at 5 feet or 0 feet, but those were all issues that they would work through with staff during the site plan review process.
Commissioner Schauner asked if they would need a variance on the setback requirement.
Maxwell said that was an open question. He said he thought it was a nonconforming structure and it would seem odd they would go through the whole variance process because the building was already built and the only thing that had changed was one use that happened inside. He said those were discussions that he would be having with the planning staff, legal staff, and possibly the BZA if it was required.
Commissioner Schauner said they were doing more than changing the use, they were changing the zoning. He asked since they were changing the zoning, would it automatically trigger a need to look at a setback variance.
Maxwell said that was an item in the site plan review process that he thought remained to be determined. He said whether they were a non-conforming structure and were given a pass on that or if they had to go through the variance procedure and appear before the BZA. He said that was something that he had talked about with his clients and recognized that it was out there. He said there was discussion still to have with legal and planning staff on that, but it was all discussions that would happen after the rezoning if they were so lucky to move and move through the site plan review process.
Commissioner Highberger asked Maxwell if he practiced in other jurisdictions that allowed Use Permitted Upon Review in a residential zoned categories.
Maxwell said that was a good question. He said it was his first case, but he believed there were some jurisdictions where they often had Uses Permitted Upon Review or Special Use Permit that happened within residential structures. He said very often that would be how the code would handle that issue in there would be the ability to go apply for a Special Use Permit, but this code did not afford that option. He said instead they were pushed to the rezoning mechanism and that was the only mechanism available by code.
Commissioner Schauner asked Maxwell what his response would be to the City looking at a text amendment that would permit such a Special Use Permit Upon Review for the 917 Delaware location.
Maxwell said he thought the text amendment could be an absolutely excellent idea for future cases. He said this case was set up and current and his clients were not cooking. He said to be honest, they had foregone months of being able to run a restaurant and an operation. He said he thought they could narrowly tailor this issue and set a good precedent. He said this was something he thought the community supported and hoped the Commission supported so that they could move forward, but if because they would not want to be in this situation again in the future, a text amendment or a Special Use Permit mechanism was set up, he would applaud that idea.
Mayor Amyx said when the addition that was made to that property, the addition was built for a specific use. He said the use was commercial in nature for a quality restaurant and there would be dining at that location. He said they both knew that use was not allowed and the governing body was being asked to correct something that went wrong. He asked if Maxwell’s client was given any bad information anywhere on whether or not a commercial use was allowed on that property. He asked if Maxwell’s client figured that use would not be noticed by anyone.
Maxwell said it was tough on what happened. He said they recognized a mistake happened on their part and should not have been operating in contravention of the zoning code. He said in point of fact, this item was discussed previously when the Krause’s first were going to engage in having a catering use.
Mayor Amyx asked if the Krause’s were looking at having a catering use at the time they were making an application.
Maxwell said they were not making an application at that time.
Mayor Amyx asked if they were making an application for a building permit or anything.
Maxwell said the history was a little bit fuzzy on exactly when and what happened. He said he would say that it was discussed and discussing the fact of what the possible use would be and when the code was reviewed at that time, approximately back in 2001, prior to the time of building the addition, they did not have a good answer on what the private dining was and where exactly it fit under the code. He said there was some view this would have been an on site catering and would fit into that. He said there was some information given to his clients that if no one complained, it would probably be okay. He said relying on that was a mistake and they should have gone through the process. He said they took just as much fault in relying on any of that information as anybody, but all of that was in the past. He said they came forward tonight not to bring that issue up, but instead look at the application before the City Commission and ask for approval and try to move forward in a positive matter.
Mayor Amyx said the reason he asked was because of the correction that needed to be completed to the property, if the use was allowed, regarding the conditions that were placed on that property. He said it was hard to look at the future when having that history staring you in the face. He said he hoped it was not the intent to run a restaurant and not think the City would find out, but obviously, the article in the Kansas City Star proved to bring that to pass and that was when everything stopped. He said Maxwell’s client applied for building permits through Neighborhood Resources for structures to be added onto the house and the fact there was no mention of commercial use on that property. He said he wanted to know if Maxwell’s client ever asked about commercial use or was given bad advice or did the zoning code not allow or address a “quality restaurant” or on-site catering.
Maxwell said there were discussions that happened with the former Planning Director about looking at this operation as private dining. He said, at that time, they did not think that use fit under any code category and the best they could come up with was some type of on-site catering and from that type of catering, it was difficult and was a call on whether it would work on not work along with the advice that if no one complained, it would not be a problem. He said he did not think the Krause’s were trying to run around and hide this operation from anyone because the operation was quite apparent to many in the neighborhood. He said the Krause’s would not have gone ahead and let the food section write a five page article if they were trying to hide the operation. He said it was probably relying on bad advice to move forward in something that he knew was about land use and the municipal code to have the “don’t ask don’t tell policy.”
Commissioner Schauner asked Maxwell if he represented the Krause’s at that time.
Maxwell said no.
Commissioner Schauner asked if Maxwell was telling the City Commission the Krause’s were told by Linda Finger, Former Planning Director, that on-site catering would include private dining at the facility.
Maxwell said the discussion was that they did not know what this fit under the code. He said the thought was this on-site catering and that was where the discussion went.
Commissioner Schauner asked if the on-site catering was not mentioned in the application for the building permits.
Maxwell said he did not know.
Mayor Amyx called for public comment.
Janet Good, President of the East Lawrence Neighborhood Association (ELNA), said the Krause’s had much support from the neighborhood. She said there had been a great turnout at the public meetings in support of the rezoning request and a broad spectrum of people in the neighborhood, were in support of this request. However, as a land use issue this was a can of worms. She said CN-1 said it was intended to accommodate pedestrian oriented small scale retail and service businesses that serve nearby residential areas. The Krause’s certainly did have customers in their neighborhood, but if they were relying on East Lawrence as their base, they would be in trouble. She said she thought it was a loose interpretation of how it fit into this particular zoning.
She said she also wanted to address the fact that the Planning Commission actually received two separate documents, one document from the board and the other from the public meeting. The ELNA, according to their bylaws, was allowed to have board only meetings. She said the ELNA Board took the neighborhood plan very seriously and this did not fit with the neighborhood plan. She said they had used the neighborhood plan with those requests before now and she had seen several of those requests in the short time she had been involved in the ELNA, where people wanted to move their business into the neighborhood area and would asked for the neighborhood’s support. She said their board had always replied “no” because they had seen the loss of residential zoning and took that very seriously. She said their plans of residential zoning were to be protected. She said protecting residential zoning was the basis of the Board’s decision. She said she had been told by staff spot zoning was not allowed before this issue ever came up. She said she wondered when spot zoning discussions would stop, because it seemed like spot zoning was done, even though they are told spot zoning did not occur.
However, the public meeting had a great deal of support and the ELNA looked at the Mitigation Plan that the Krause’s brought forward and looked at the special circumstances of the Krause’s property, such as the fact they only had residential on one side and they had a Mitigation Plan in place. She said she had been trying to read the new code to try and figure out, as a land use issue, how the property could be conditioned and whether those conditions carried forward if the Krause’s decided to go move and sell the property, and where that left them. She said that was a big can of worms she could not even figure out on where they stood on that issue and how those conditions carry forward to the next property and whether that was legal with the code.
She said those were questions she had and she understood the Krause’s had a great deal of support, but thought it was a loose interpretation of the CN-1 code considering the grade school two blocks from their property was 75% economically disadvantaged students and they had support from some of their neighbors who were obviously not regular customers of the Krause’s. She said it was divisive issue in the neighborhood and it was a difficult issue to represent fairly because the Board took their neighborhood plan very seriously, took the staff recommendation seriously, but they did have a great deal of neighborhood support and it was a low impact use.
She said she also wanted to mention, because no one else had, they had offered to buy the property of their next door neighbor. She said she spoke with Krause this week concerned about if this plan went forward and they bought the next door neighbor’s property, she asked what would Krause’s plan to do with that property. She said the Krause’s planned to keep the property residential and she was very relieved to hear that because if it was going to be a demolition permit, at least it would be on someone else’s watch. She said she wanted to get that discussion on the public record because no one had mentioned the issue of the Krauses buying that property.
Leda Sedlock, Lawrence, spoke in support of the Krause’s request. She said operating as the Krause’s did, they lived a somewhat public life. She said her perception of the Krause’s was that together, they were focused, artistic, individualistic, and driven, but also quite efficient. She said her suspicion was that he was actually one of the quieter neighbors on the block who wanted to keep his neighborhood that way as well.
She said in this issue she struggled with the implication the Krause’s place might have an impact on properties listed on the National Register of Historic Places. She said she dug a little deeper to understand the resistance and in her mind she could only come up with two theories. She said if it was the gross stuff that came with selling food and alcohol, then those concerns were listed and the Krauses had responded to control for those concerns. She said if the concern was a rediscovery of their neighborhood and soaring property values and so called gentrification, she urged everyone to consider the alternative, urban blight, which coming from the Bronx, was a real concern of hers in Lawrence and anywhere east of Iowa Street. She said business in a neighborhood would have a good affect and it was what they were trying to create with millions of dollars on New Hampshire Street right now. She said it would have an affect, but under a special use permit, it could be a good business. She said development would come to the east and should hope it would for the life and survival of the city as they know it. She said if it was not this commercial effort, then it would be some bigger, more offensive commercialization. She said this past summer she saw Applebee’s, Pizza Huts, and an indoor mall when she went home to the Bronx. She said they should set the precedent using this young, energizing family with their strong and interesting point of view, not just about good food, but about living a balanced life. She asked the Commission to grant a special use permit to the Krauses and set the course toward commercialization that celebrated the uniqueness of their special neighborhood and its special people.
Bartholemew Dean, Lawrence, spoke in support of the Krause’s request. He said he lived at 925 Delaware and he took umbrage with what the President of ELNA stated in that folks would not frequent that business. He said he certainly had not been to that business yet, but he planned to do so, in the future, if this plan was granted. He said he also took great umbrage and offense when he heard comments about Dillon’s and how that business was the dirty ghetto Dillon’s. He said he saw this project as very important and extremely positive for the vibrancy of urban communities. He said he thought it was ridiculous with some of the comments he heard regarding staff talking about the vegetation in front of Allen Press parking lot. He said he was inviting the City Commission to spend time in front of his home and watch the trucks go by. He said he woke up early in the morning and drove up to his office, University of Kansas, and noticed he had to spend a little time because there were buses from the University of Kansas occupying the Allen Press barn and noticed that to the left he saw a bar and to the right were industrial complexes. He said he looked to his neighbors and thought “good people.”
Michael Morley, property and business owner on Delaware Street, spoke in support of the Krause’s request. He said his property was mistakenly identified as a residential property, so he thought it was important to say the Krause’s property was surrounded by commercial uses. He said his property was in IG zoning, which had intensive use. He said the point was the Krause’s were put at risk by putting their business in that place.
He addressed the complaints about noise. He said the Krause’s place of business was a quiet one. He said he also thought there was an issue about smoke. He said the smoke was coming from the diesel engines from the City’s bus barns and was probably a much bigger health hazard to the neighborhood than anything that would happen at the Krause’s place. He said in the Horizon 2020 document it stated that they had to have a buffer between commercial, industrial and residential zones. He said that was specified as a light commercial, so he thought it fit well in the Horizon 2020 plan to have that buffer between the residential and commercial zones. He said this business was the complete opposite of suburban sprawl. Those people were coming in and investing in the community and probably had the first green roof in town. He said they were using local produce and sources and he thought it was a business that should be supported. He said he saw the difficulty they had with the zoning change and really thought the special use permit would be something to look more carefully at as one of their tools to try and solve it through the community. He said he hoped the City Commission could see the support the Krauses had, the business they were trying to run was good for the City, and hoped the Commission would help make it happen.
Debbie Johanning, Lawrence, read a statement from nine members of the East Lawrence Neighborhood Association in support of the Krause’s request. The statement read:
“We the undersigned support the approval of conditional zoning for the operation of a quality restaurant and catering business of the property of Robert and Molly Krause at 917 Delaware. We believe their presence is an asset to the City of Lawrence and to our neighborhood and it is consistent with the diverse business and artistic character of East Lawrence. We are flattered they have chosen our neighborhood as a place to practice their craft. They have consistently shown themselves to be good neighbors and displayed pride in the ownership of their East Lawrence Neighborhood home. We believe that the East Lawrence Revitalization Plan supports the type of business that the Krauses have proposed. The plan is not a land use plan, but rather is a preservation and social action strategy to maintain important features of East Lawrence. One of the six goals of this plan is to ‘protect and strengthen the viability of neighborhood businesses’ of the qualities that make East Lawrence unique among their city’s neighborhoods, one of those was the variety of land uses contained within the neighborhood along with single-family residences. The plan states, ‘the commercial residential relationship is important not only for maintaining economic viability, but for defining the physical character of the neighborhood.’ The East Lawrence Neighborhood Association, of which we are all members, has held two votes on this matter, the most recent being September 11, both of which passed by overwhelming majority in favor of supporting the rezoning request. The meeting agenda and proposed vote were publicized to the neighborhood and all residents were invited to participate. The ELNA board continues to be opposed to the rezoning request in spite of the broad neighborhood support for the request. The board had inserted language and passed recommendations and communications that were not discussed in public meetings and went against the wishes of the majority of the membership. The purpose of this statement was to ensure the correct message of neighborhood support was delivered to the City Commission.”
Michael Blumenfeld, Lawrence, spoke in support of the Krause’s request. He said he had little to add to the discussion, but he asked the City Commission to bear in mind, the obvious economic benefit to the whole community, not simply the East Lawrence community, of having a world class restaurant in effect. He said he thought it was to be applauded.
Alan Black, Chair of the Land Use Committee of the League of Women Voters, said the League of Women Voters opposed the request. He said they were opposed to rezoning this property to CN-1 because the zoning classification went with the land and not with the owner of the property. He said if this house were to be demolished or burned down, then that property could be used for other things. He said he was told that the CN-1 zone listed 34 different types of uses that were permitted. He said any one of those types of uses could be placed on this property without requiring any further approval.
He said they also had some questions about the conditional zoning. He said he was not a lawyer, but was told there were questions about what kind of things could be agreed to with the zoning, which were listed in the stipulations.
He said one thing that had not been mentioned was the concern about the hours of operation of the restaurant and he believed that was one of the conditions and no one had mentioned that before. He said that was a concern of some of the neighbors and was not clear on whether that could be limited as part of the zoning.
He said the best way to handle this case was to require a text amendment. The Planned Unit Development zone could be used. He said as some people suggested, the Special Use Permit might be the best way to handle this case and that was the device where conditions could be attached.
Ron Schneider, attorney on behalf of Dave Evans, who was the neighbor who had been referred to that lived just south of the Krause property, said Evans had, in fact, entered into a contract with the Krauses to sell his house based on various conditions, if the Krauses were approved for their project. He said there were some rumors going around concerning the sale of this property and he wanted to set the record straight. The Krause came to his client after one of the meetings and wanted to talk with him about addressing any concerns he had about the impact on his residence. He said they started discussing various alternatives, conditions and requirements and had an extensive half day meeting and some other telephone conversations. During the course of those meetings and conversations it became apparent to he and Evans, even though the Krauses were willing to spend a lot of money to minimize any adverse impact, that Evans was going to be the only residence directly affected by this. He said Evans’ bedroom window was 8 feet within the patio area. He said it was he who went to the Krauses on behalf of his client and made the proposal. He said the Krauses did not come to his client and dangle money in front of his client and say they would buy him out. He said they struck an agreement and it was a reasonable and fair price. He said his client’s position was no objection to the proposal. He thought there had been some questions raised about conditional zoning and he knew a little about that stuff. He said he did think there were questions that were legitimate, but if it was done right and found by a court to be reasonable, it ran with the land and was where he thought a lot of people were missing the boat. He said the big question was if the conditions were enforceable, reasonable, and would those conditions be upheld by a court of law. He said if their staff concluded and advised them yes, then anyone who purchases that property or inherits it was bound by it as well.
Commissioner Schauner asked Schneider if he could cite any case in Kansas where the uniformity requirement under Kansas zoning could be amended through conditional zoning.
Schneider said he could not. He said he thought there was case law that said conditional zoning was acceptable or should be considered in the proper circumstance. He said the question was what was conditional and what was not conditional. He said they were familiar with numerous conditions that were repugnant and the courts had found them unenforceable either applied through restricted covenants or other methods of control. He said it was what was reasonable and what was acceptable. He said he knew no case in Kansas that discussed that to the extent he could answer Commissioner’s Schauner’s question.
Mayor Amyx asked Schneider if it was not true because of some of the conditions that had been placed on zoning from this point and from the past whether looking at deed or covenant restrictions, those were conditions of zoning.
Schneider said those were restrictive covenants running between private properties.
Mayor Amyx asked why the City Commission saw those covenants when coming before this Commission.
Commissioner Schauner said those covenants tend to involve roofing or siding, but those were enforced by those private sector.
Schneider said covenant restriction were usually in subdivisions. He said they were recorded and enforceable by the neighbor. He said if there was a restrictive covenant that said they could not build larger than a three car garage in a neighborhood and they go ahead and build an 8 car garage, a member of that subdivision could enforce that prohibition. He said the City Commission, as a government entity, had no standing to do it. He said anyone could argue that a condition could be imposed by a similar way, but it became a condition in which the zoning was granted.
Gwen Klingenberg, Lawrence, said she had a concern about breaking faith with the new codes. She said this use for the property did not comply with the CN-1 zoning. First of all, the Krause’s property was not on a collector or arterial, and the City Commission heard several other reasons. Lawrence codes were new and if breaking faith with the new codes and if the Commission approved the use, then they would again create a history and therefore having to allow other people to do the same thing. She said if they approved the use tonight, she asked how soon she could have CN-1 zoning at her house so she could have a private restaurant because she was only 500 feet from a commercial zoning and she could ask the church across the street to use their parking.
She said she lived on a local street and was not in a historic district. She said commercial nodes all over this town that had not been properly transitioned have single family homes all over and all around that would be allowed to have a private restaurant without having historic district concerns. She asked if they wanted to continue a history and was it better to ask for forgiveness and then allow this to continue.
Betty Lichtwardt, Lawrence, said it bothered her, as an individual, that a special exception was being granted that would not ordinarily be granted to other people. She said every time a special exception was made in a zoning issue, it took the lid off the code and made it almost impossible to deny someone else. In addition, there were a number of regulations this zoning issue did not address. She said she had to emphasize what the City Commission was considering was the rezoning which was in a conventional district and as a conventional district, it allowed 35 additional uses. One of the uses might be very feasible for this area should the restaurant owners choose to expand and find that their business in their residence was too small, because they obviously were very popular with people in Overland Park and Topeka and the western portion of Lawrence.
She said she would like to illustrate that some of the provisions of the ordinance that had not been met. She said there was no neighborhood plan development that incorporated this use. A requirement for the CN-1 district was not already designated a neighborhood center. She said it was also not located on an arterial or collector street which was a requirement of 20-207a of the new code. The maximum size of 300 square feet was exceeded for the restaurant, which was under 20-524. An agreement supposedly enforceable was presented by the applicant to restrict permitted uses on the site. This had already been thoroughly discussed, pro and con, but she thought it was indicated by not having any court cases to back this up. She said this permit had to be something that was redefined and attached to a zoning district or several zoning districts and those involved text change amendments in the code. She said if the City Commission felt it in their hearts that this use was a proper use, although temporary for that particular location, those would be uses that could be tailored to that particular site because a planned unit development could be conditioned and a special use permit could be conditioned even further. She said all of those arguments against this use seemed to carry more weight when considering what the affect of this approval for CN-1 in that location would be doing to the City’s code.
Kenneth Weaver, Lawrence, spoke in support of the Krause’s request. He said he did not live close to the Krause’s establishment, but he had often eaten there and used them as a caterer. He said Robert Krause and his restaurant was a major asset for this community. He said they moved there from the Washington D.C. area 6 years ago and when they lived in Washington D.C. there were a number of marvelous restaurants where they could eat. He said when they came to Lawrence, people asked them how they liked Kansas and they would say they thought Lawrence was a great place to live and they liked it, but the one thing they always had to offer as a caveat was the food was not up to snuff and it was really hard to find really good food in Lawrence, Kansas. He said the coming of the Krause’s had made a change of that. He said when they were still operating out of their home, they ate there on occasion, and other times in the glass and steel dining room they built. He said they found their cuisine wonderful. He said anything the Commission could do to encourage the Krause’s was useful for this community because they were an asset.
He said the only other thing he wanted to say was that he did understand why in some communities people would be concerned about a commercial establishment. He said in this case, if one would stand in front of the restaurant and look up one would see a lot of marvelous landscaping and it was very attractive. He said if they turn and look in the other direction, one would see commercial and industrial activity, and that, to his way of thinking, was far more injurious to a community than a fine, well run restaurant, especially one that was only going to operate four days a week and serve 20 people at a time. He said he could not see how that could become a truly major disaster for the community. He said when they had eaten at the Krause’s, they never had any trouble parking and every time he looked out across the street, he thought why do people worry about harm to the community from a fine restaurant when there was commercial and industrial just across the street.
Wint Winter, Lawrence, spoke in support of the Krause’s request. He said he had some land use experience. He said he would like to suggest a couple of different issues for the consideration of the Commission. The first issue would be if a mixed use was appropriate for this neighborhood and if so, the seconded question was if this type of mixed use conditioned and appropriate such that it was the type of mixed use that could carefully be put into this neighborhood. The answer to that first question was yes, if appropriate and if conditioned carefully, mixed uses were appropriate and this was a mixed use neighborhood. He said that brought them to the second, more difficult question which was if this use was an appropriate mixture into the neighborhood. There was discussion about wishing there was a text amendment that allowed Use Permitted Upon Review or Special Use procedure in residential. He said if there was that text amendment, this Commission would go through the same thought process when allowing that use in other districts. He said he thought the analogy was land use decisions, in their case, was the art of the possible. He said it was not possible now to use that text amendment, so the art of the possible was the use and the history that had been proposed by the land owners. He said he certainly believed the process they went through and the result which they brought was a very carefully crafted mixed use which was very limited, low impacted, and very carefully constructed so as to be that appropriate mixed use for this neighborhood.
He said one of the issues was should the City Commission set a precedent. He thought the Commission should set a precedent and the Commission should applaud the type of communication the Krauses engaged in, the type of compromises, type of conditions, type of limitations and to see the neighbors support this use was very compelling evidence the Krauses had gone through exactly the kind of process that the Commission wanted to carefully craft a very narrow and appropriate limited use. He said he thought contrary to the suggestion this was not a precedent the Commission wanted to set, he thought it was a precedent that needed to be set.