Lawrence ∘ Douglas County Planning Department

Memorandum

To:       City Manager and  City Commissioners

From:    Linda M. Finger, Planning Director

Date:   2/12/2004

RE:      Follow up on Ordinance No. 7742, Text Amendment to Zoning Regulations 20-1808, Limitation on Successive Petitions section

The first reading of Ordinance No. 7742 was deferred from the City Commission’s agenda on January 27th to permit staff to meet with two members of the public who had expressed concerns to the Commission about the wording in the zoning text amendment to the ‘Limitation on Successive Petitions” section. 

Background Information: The Text Amendment to revise this section was an outcome of a concern by staff and Planning Commission that the existing code language is unclear and insufficient to address successive (rezoning) petition requests. 

The Planning Commission first deferred this item from their March agenda prior to their meeting. Their first consideration and public hearing on this Text Amendment was in April 2003, at which time there was no public discussion but considerable Commission discussion.  After several motions were made and no final action was taken, the Planning Commission referred the Text Amendment back to staff for revisions based on their discussion. The Text Amendment came back to the Planning Commission in July with a staff memorandum summarizing the changes that were made to the original proposed amendment.  The Planning Commission again held a public hearing at which no comments were received, and they discussed and forwarded the Text Amendment with modifications forward to the City Commission on a 9-0 vote for approval.  The Planning Commission’s recommendation was placed on the City Commission’s agenda in August as a consent agenda item (since it came with a unanimous recommendation and there had been no public comment on it).  The City Commission approved the Text Amendment on a 5-0 vote.  The Text Amendment was not placed in Ordinance form or back on the City Commission’s agenda until January 2004 through a tracking error or oversight.

Concerns Raised by Members of the Public:

Staff has contacted the two members of the public who notified the City Commission that they had concerns, Ms. Sinclair and Mrs. Lichtwardt.  The concerns they expressed that are specific to this Text Amendment are presented in the following table:

Ms. Sinclair’s Comment

Mrs. Lichtwardt’s Comments

1.       Original concerns with this section as understood by Ms. Sinclair are:  “The issues of concern were three: the meaning of substantial change was vague and subject to any interpretation of the Planning Commission per your word; what constituted an affidavit was also unclear; the affidavit must be submitted 15 days “prior to” a pc meeting.

2.       “The proposed ordinance bears almost no relation to the current code.

a. Previously, an applicant could not resubmit the same application for 12 months if the City Commission had denied their application.  Now it must have been denied by the City Commission, the Planning Commission, and a protest petition filed in order to have to wait 12 months.  This places a significant burden on neighborhoods.

b.  There are now a number of situations whereby an applicant could return in 120 days with a modified application.  Some of these are simply left to the discretion of the Planning Director.  This takes the process out of the realm of public hearings and allows for very quick action on the part of the Planning Dept. without public notice.

c.  The situations in which this ordinance would apply appear to have changed and to be reduced.  For example, PUD's no longer seem to be included in the 12-month waiting period.
d.  The current ordinance continues the unclear language pertaining to "withdrawal of an original petition, after it has been advertised for a public hearing, shall constitute denial of the application as if the public hearing had been held and concluded."  It is not clear what constitutes a withdrawal.  The PC minutes make it clear that this is not a deferral.  So we will continue to allow applicants to defer items right at the point of a PC meeting, without penalty, after neighbors have organized and attended.  It also does not seem to apply to situations where the applicant submits a "placeholder" plan and continuously submits changed plans, even as late as the day before a PC meeting.
e.  These represent some, but not all, of the relevant topics for discussion.

3.  She recommends returning this item to the Planning Commission for additional review, discussion and public comment, specifically mentioned are the neighborhood and LAN.

 1.    The use of the word ‘category’ is unclear and undefined.  It needs to be defined, as some planners’ view categories to be just “Residential, Commercial, and Industrial.”  That is too board of a range.  Changes from a Mobile Home Park to a single-family zoning would both be residential. Is this a change in ‘category?’  It should be.

2.   The ability to resubmit a petition within 120 days or four months is too short of a time frame.  ‘This seems unfair to the Planning Commission and staff, because it could increase the processing load on the staff without substantially changing the effort required of the applicant.”  “One argument for reducing the time interval allowing re-submittal is that an applicant can defer his application for three months, anyway, without republishing for another public hearing.  There should be a limit on how many times this, also, can be done.”

3.   “Assessment of the findings of fact by the Planning Director seem open to too much subjective judgment.”

4.  “There are needed definitions: ‘Category’, ‘new application’ (needs different term), ‘use intensity’.

5.    The major unanswered question is: “Would this allow a change in Development Plan for a PUD to be submitted without opportunity for a protest, if it is in the same zoning, different category, but is not considered a substantial change?”

 

Although public comments were not received at either Planning Commission meeting where this item was on the agenda, issues of the time interval, what constituted a significant change, and whether or not a protest petition and a City Commission denial of an applicant were necessary to invoke this section to apply to an application and a specific property, were all discussed by the Planning Commission in either April or July. The subjective nature of decision-making by the Planning Director was to be defined by the criteria set out in subsection (c) of the draft Text Amendment.  At the time the Planning Commission considered the Text Amendment, it was anticipated that it would soon be ‘wrapped’ into the new development code. The new development code could have definitions added to it to define ‘category’ and ‘use intensity’.  A new application seems fairly self-explanatory but could be defined if the Commission believes there is a need.

The response to Mrs. Lichtwardt’s “major question” is that yes, a new Planned Unit Development Plan could be submitted as a new application after 120 days, without an appeal of it’s filing as a new application, if one or more of the criteria in subsection c of Section 20-1808 are met, AND if the City Commission’s denial vote was made without a valid protest petition being filed on the original application. 

 

Proposed Text Amendment:

20-1808          Limitation on Successive Petitions

This section shall apply to any petition that has been denied by the City Commission for a zoning text amendment, zoning map amendment, or a Use Permitted upon Review:

a.       Withdrawal of an original petition, after it has been advertised for public hearing, shall constitute denial of the application as if the public hearing had been held and concluded;

b.       A successive petition application shall not be accepted for a period of twelve (12) months from the date of City Commission denial of the original petition if:

1.       The original petition was recommended for denial by the Planning Commission; and

2.       A valid protest petition was filed within fourteen (14) days after the Planning Commission concluded the public hearing.

c.       A successive petition application for an original petition denied by the City Commission may not be accepted until 120 days after the date of denial and only if it meets one or more of the following criteria:    

1.       A different zoning category has been petitioned for;

2.       The same zoning category or district has been petitioned for and the density of use is 25% greater or less than the original petition;

3.       The same zoning category or district has been petitioned for and the intensity of use is 25% greater or less than the original petition;

4.       Specific responses to the reasons for denial set forth in the findings of fact by the City Commission are, in the opinion of the Planning Director, addressed in the resubmission; or

5.       The use in the Use Permitted upon Review has changed location, operators, or use type substantially from the original petition.  Substantial change shall be determined by the Planning Director using the findings adopted by the City Commission for denial of the original application as the gauge for measurement.

d.       A new petition application may be resubmitted after at least 12 months have passed since the date of City Commission denial. 

 

Summary:

It was the consensus of the Planning Commission that if an application for rezoning, a UPR, or a Text Amendment were filed; public noticed; and then withdrawn for additional work by the applicant with the neighborhood; that there should not be a one-year penalty on the effort, though belated, to work together [applicant and neighborhood or applicant and staff].  The Planning Commission also discussed the need to encourage smart development, in the sense that if a request is denied by the City Commission with reasons given for that denial [which is required by State Statutes and local ordinance], and if no valid petition was filed, it was in the best interests of both the City and the applicant to work together. The four months, 120-day time frame, was arrived at as a “cooling off” period that allowed adequate time for public notice of a new application without placing such a monetary burden (interest and carrying costs) on an applicant that a project was abandoned and the land left idle, underutilitzed, or allowed to deteriorate through property owner neglect.

Recommended Action:

 

The Commission has several choices:

1.      Return the Text Amendment to the Planning Commission for reconsideration based on the issues raised. Two cautions with this approach: the issues raised are not new to the Planning Commission and were included in their discussion of the proposed text, and returning an item after a public hearing is closed, and no new information has been raised, is a precedent that will blur the public hearing process – when is a ‘hearing’ over; can a hearing be ‘redone’ because it is more convenient to attend then when previously held?

2.      Adopt the Text Amendment on first reading, instruct staff to draft definitions as are appropriate for the interpretation of the amendment, and request a follow-up report from staff in one year on the effectiveness of the proposed language; or

3.       Do nothing with Ordinance No. 7742 at this time. The proposed language has been included in the draft zoning code text that is currently under consideration by the Planning Commission.  When this item comes forward to the City Commission, receive public comment on the proposed language at that time and then take action on the full code, incorporating a change to “successive petitions” at that time into the Development Code.