ITEM NO 3: CONSIDERATION OF THE NEW DEVELOPMENT CODE, NOVEMBER 17, 2004, EDITION THAT REPLACES THE EXISTING ZONING ORDINANCE NO 3500 AND ALL AMENDMENTS SINCE ADOPTION IN 1966(LMF)
TA-10-05-04: Pursuant to the provisions of K.S.A. Chapter 12, Article 7, consider the adoption of “Development Code, November 17, 2004, Edition,” enacting a new Chapter 20 of the Code of the City of Lawrence, Kansas, establishing comprehensive zoning regulations and other land use regulations. The “Development Code, November 17, 2004 Edition” is a general and complete revision of the City’s existing zoning regulations, Ordinance No. 3500 and all amendments thereto, and affects all property within the corporate limits of the City of Lawrence, Kansas. The “Development Code, November 17, 2004 Edition” is incorporated by reference as if fully set forth in this notice. Copies of the “Development Code, November 17, 2004 Edition” are available for review at the Office of the Lawrence-Douglas County Planning Department, City Hall, 6 E. 6th Street, Lawrence, Kansas. The “Development Code, November 17, 2004 Edition” is also available on the Planning Department’s website at: www.lawrenceplanning.org. This item was referred back to the Planning Commission by the City Commission at their meeting on July 20, 2004.
Recommended Actions:
COMMISSION DISCUSSION
Chairman Haase suggested the Commission discuss procedure first and proposed that the Commission take one of two plans of action:
1. Approve the document as presented with the understanding that several issues would be considered in detail and multiple amendments would be forthcoming.
2. Send the document to a new subcommittee (not ZAC) for review of the key issues identified in the Staff Report.
The Commission discussed a concern raised that the public had not been given adequate time to review the document and make comment.
Ms. Finger stated that the Development Code had been in process for over five years, including six Listening Sessions for public comment held in late 2003. A revised draft had been recommended for approval by the Planning Commission in February 2004. Each revision to the code had been posted on the Planning Department website and copies had been maintained at the public library. The most recent copy, with the current Staff Report, was delivered to the library the previous week.
Comm. Eichhorn said he though the Commission shared concern about the Development Code, but suggested they could deal with the Cooperative Agreement tonight if it were split from the Development Code for consideration.
The Commission agreed to take public comment on the Cooperative Agreement before considering Chairman Haase’s suggestion. It was clarified that this was not a public hearing on the Cooperative Agreement, but a comment session for the Commission to gather input from the public on the City/KU Cooperative Agreement.
COOPERATIVE AGREEMENT
PUBLIC COMMENT
Candice Davis spoke as the Oread Neighborhood representative to the Lawrence Association of Neighborhoods (LAN). Ms. Davis supported the split consideration of the Cooperative Agreement from the overall Development Code. She said the interlocal agreement had not gone through the public hearing process and the public should be given additional opportunity for input.
Ms. Davis summarized the letter sent to the Commission from LAN stating the Association thought the Cooperative Agreement regarding regulations of the proposed U (University) District in the draft code moderated the public process and the impact of campus development on the surrounding neighborhoods. LAN opposed the U(UK) sub-district, saying that it put no restrictions on University development. LAN further stated that the ad hoc review committee proposal related to the U(UK) District was unclear about committee membership, meeting requirements and review criteria.
Ms. Davis urged the Commission to consider what, if anything, the neighborhoods and the City would gain from the Agreement and whether it was an improvement over the existing situation.
However, LAN suggested the following changes if the Commission chose to approve the U(UK) District:
LAN considered the U(UK) District confusing and asked the Commission not to approve a zoning category with no mandatory restrictions and an at-will termination clause for the voluntary restrictions.
Comm. Burress said his understanding was that the University was unwilling to accept modifications to the proposed Agreement. He asked what LAN would recommend the City do if this were a “take it or leave it” proposal. Ms. Davis said she could not speak for LAN, but she was personally disappointed if the University was not willing to consider clarification and changes.
Carol von Tersch, 706 W. 12th Street, said she found the Agreement threatening because of the inclusion of some non-contiguous endowment properties. Because not all endowment properties were included, she inferred that the properties that were included had specific development plans for the near future. One of these properties was located next door to Ms. von Tersch’s residence and had been maintained as housing for visiting faculty. She understood that it was now being converted to office uses.
Ms. von Tersch said she was concerned that, if the Agreement were approved, she would lose the regulatory protection she had enjoyed to this point.
In reference to the “take it or leave it” question, Ms. von Tersch said she would support the City enacting zoning on the University, even if it meant going to court.
Bill Mitchell, 1201 Emery, referenced his most recent letter to the Commission, saying the doubts expressed in this letter regarding the Agreement were well-founded. He said it was unlikely the University would “change its spots” and that “one cannot deal civilly with a 600 pound gorilla”. He suggested the City ought to stand up to the University if the University would not negotiate further on the Agreement.
Janet Gerstner explained she had been an Oread Neighborhood resident until recently and was still interested in issues that affected the neighborhood, as well as the city at large. She said University issues impacted more than the older downtown neighborhoods, that the main campus and western campus were surrounded by multiple neighborhoods.
Ms. Gerstner said it appeared the Agreement was designed entirely by the University to remove their land from the normal planning process. Staff clarified that the Agreement was developed over a period of time and with revisions by both the University and the City Staff.
Ms. Gerstner said the minutes of the September 7, 2004 City Commission meeting should be part of the Planning Commission’s consideration. This issue was not on the agenda for that meeting, but several comments were made regarding the Agreement.
Ms. Gerstner felt the Agreement should not be approved until/unless more information was given regarding the ad hoc committee and its criteria for review, as well as additional definitions and clarifications. She would also like some language detailing what would occur if the Agreement were terminated according to the provided clause.
Ms. Finger responded to questioning that the Director of Legal Services was of the opinion that the Agreement, as written, was the best opportunity the City would have at developing a formal agreement with the University. The University had stated many times that it was not subject to the City’s regulations and it would protect that concept in court.
marci fransisco, 1101 Ohio, said she took part in the KU Neighbors Group that initiated discussion about the new Scholarship Hall and the impact University development would have on its boundary neighbors. She said the University had chosen not to make this group part of the Agreement negotiations process.
Ms. fransisco said the University could predict what would happen on the City’s side of the City/University boundary based on zoning and allowable uses. There was no way of predicting what the University would do on their side of the boundary.
Ms. fransisco referenced the recent Scholarship Hall built on Ohio Street with only three off-street parking spaces, which created a significant addition to the existing parking problems in the area. She said this was a prime example of what happened when planning did not precede development and no regulations were applied. She noted that the neighborhood had gone along with this development with the understanding that the U (University) District was forthcoming and would provide regulatory protection. Now the neighborhood found that the U District “had no teeth” because of the proposed U(UK) District.
Comm. Burress asked Ms. fransisco the “take it or leave it” question. She said the City should decide if parking and other elements that impacted neighborhoods were important and should be addressed, because this Agreement did not accomplish that.
Caleb Morse, 1733 Mississippi, stated his strong support for LAN’s suggestions about changes to the Agreement and his concern that there were no stated guidelines for judging the Agreement’s success at the annual review.
Mr. Morse said the State statutes were clear on the fact that the City has no authority over the issuance of building permits for State property. However, the State regulations are not as clear about the City’s ability or inability to enforce zoning in these areas.
Mr. Morse shared the concern and confusion of others regarding the Agreement and its benefit – if any – to the community. In addition to the information requested by previous speakers, he said he would like the document to address what would happen if University property in the U(UK) District changed to private ownership.
Mr. Morse agreed with a comment from Comm. Burress that this Agreement gave the appearance of controlling growth along the City/University boundary. However, he reminded the Commission that the Agreement could be terminated at any time and the University had a history of changing its campus development plan.
Comm. Burress asked Mr. Morse to comment on another argument that could be made in support of the Agreement. Mr. Morse responded that the City seemed to gain a little from the Agreement, but the individual neighborhoods did not.
The public comment section was closed at 7:40 p.m.
STAFF COMMENT
Ms. Finger asked to clarify that the “take it or leave it” comment was Comm. Burress’ language, not Staff’s interpretation of the situation. In Staff’s opinion, the City Commission would not have forwarded the Agreement to the Planning Commission for comment if there was no chance of further modifications. Mr. Corliss had stated this was possibly the best Agreement the City would get, but no one had said that either side would not return to the negotiating table.
Ms. Finger responded to questioning that the U(UK) District was a subcategory of the U (University) District. The U(UK) District designation was meant to represent the text of the Agreement and the boundaries shown in Exhibit A. All regulatory authority over this property was supplied by the Agreement, which was why the new district was not discussed in detail in the Development Code.
It was established that Staff recommended approval of the Cooperative Agreement between the City of Lawrence and the Kansas University as presented. The University had continually claimed that their property (being owned by the State) was not subject to any review or control by the City. Staff believed this was the best opportunity to get the first ever agreement with the University in writing. It was clarified that the Agreement was not a public hearing item, since there was no formal ability to file a protest petition. However, the City Commission had indicated interest in having the Planning Commission take public comment.
COMMISSION DISCUSSION
Comm. Angino said he would support approval of the Agreement, because denial outright would close avenues of communication. An approved document would provide a common starting point for further discussions. He was concerned about sending the Agreement to a committee, feeling the committee would continue discussing the issue while the University commenced with development projects with no regulations.
Comm. Burress said it made sense to recommend the City continue negotiations with the University, specifically addressing neighborhood issues. He said the alternative was to “expect the University to obey the law”, which would require money and effort to enforce (in court).
Comm. Burress suggested that negotiating with the University was a losing proposition and it was likely the courts would support the City’s case.
It was established in response to questioning that no neighborhood representatives were allowed a ‘voting voice’ in the cooperative committee that developed the Agreement.
Vice-Chairman Riordan said, as a member of the Agreement committee, that the University made a consistent and clear statement that they would pursue the best interests of the University, no matter what, and that they would continue to do so. The University was not concerned about the impact of its development on the City.
As a member of the Committee, Vice-Chair Riordan said the Agreement reflected the highest level of compromise the University was likely to agree to. However, as a Planning Commissioner, he could not support the U(UK) District because it did not provide sufficient protection for the City.
The Commission discussed the likelihood of the University returning to the negotiating table if the Agreement were accepted or rejected.
ACTION TAKEN - Cooperative Agreement
Motioned by Comm. Burress to forward a four-fold recommendation to the City Commission:
DISCUSSION ON THE MOTION
Ms. Finger stated there was no way to condition automatic rezoning, but language could be developed to ensure that termination of the Agreement would automatically trigger the initiation of rezoning to U (University) zoning for the property.
ACTION TAKEN
Revised motion on the floor was to forward the following recommendation to the City Commission:
Vice-Chair Riordan seconded the revised the motion.
Motion carried unanimously, 8-0.
DEVELOPMENT CODE
Chairman Haase asked how the Commission would like to proceed on the public hearing for the Development Code. Ms. Finger said Staff was prepared to make a presentation on the Staff Report and asked for the opportunity to do so.
STAFF PRESENTATION
Ms. Finger explained the majority of the Development Code presented tonight matched the text approved by the Planning Commission in February 2004. She described the public comment and revision process that took place before the Planning Commission acted on the document in February 2004.
Ms. Finger presented a list of recommended changes that would, in Staff’s opinion, make a better policy document. Small changes included:
1. An error was found in the graphics that were added based on the Planning Commission’s approval. Correcting the graphics and accompanying language would require a determination by the Planning Commission regarding the appropriate setbacks for multi-family or non-residential buildings adjacent to single-family uses. Comm. Burress suggested a maximum of the building height or the regulatory minimum setback [Sec. 20-601], whichever was greater.
2. An Errors & Omissions table was provided that listed minor revisions Staff believed could be made without discussion (typographical and spelling errors, etc.).
Ms. Finger gave a brief explanation of each key issue being returned to the Planning Commission for consideration, as outlined in the Staff Report:
1. Revisions to the U (University) District to accommodate a separate district for the new map designation of U (UK) for the Primary Campus of the University of Kansas. [Sec. 20-218]
The Planning Commission dealt with this issue through their previous action recommending the City reject the proposed Cooperative Agreement with the University. The new U(UK) District would not move forward until continued negotiations resulted in a revised interlocal agreement.
2. Revision to the room number thresholds established for accessory uses to hotels. [Sec. 20-501(j)]
Based on existing hotel uses in Lawrence and their accessory uses, the room number thresholds proposed by the current draft document were too high. Staff provided recommended numbers, lowered to reflect existing and anticipated hotel uses.
3. Revisions to the congregation seating thresholds for Religious Assembly. This change also impacts the definitions for the two types of Religious Assembly. [Sec. 20-501(v)(1) & Sec. 20-1702 (ww)]
Based on a review of religious assembly uses site planned in the last 20-25 years, the seating thresholds proposed by the draft document were too low and would result in a majority of these existing uses to become non-conforming. Staff proposed higher numbers in keeping with the status quo of existing uses. This would reduce the potential number of non-conforming uses created by the new Development Code.
4. Revision to the design standards for retail establishments. [Sec. 20-501(aa)]
The draft standards in the February 2004 edition were based on Fort Collins, Colorado. Staff proposed replacing this text with language referencing the new design standards that are being developed by The Commercial Design Standards Committee. The new standards could be amended into the Code when completed.
5. Revision to the Telecommunication Facilities review fee. [Sec. 20-501(dd)]
The specific statement of a $20,000 fee was included as an oversight, as no other fee amounts are specifically stated in the Development Code. Staff researched this provision and spoke with consultants in the industry and other cities. No evidence was found of other communities stating specific fee amounts. Staff recommended changing the language to reference a fee amount that would be set by the governing body.
6. Revision to the registration process for Type B Home Occupations. [Sec. 20-502(9)(ii)]
The proposed registration process for home occupations is cumbersome and it was anticipated that property owners would have difficulty remembering to re-register every two years. Staff proposed restructuring this process based on the simple and efficient registration process for accessory dwelling units in the Code.
7. Revision to the Site Plan appeals process. [Sec. 20-1305(k) & Sec. 20-1301(a)]
The Director of Legal Services had expressed concern that the proposed revisions would make the site plan appeals process longer and more complicated, when the intent was to streamline and shorten the process. A timeline was developed by Staff that appeared to support this concern. Staff proposed new language that kept the existing structure
eliminated the Planning Commission from the appeals process but gave, he felt, adequate opportunity for public input.
8. Revision to the Special Use application to require a site plan. [Sec. 20-1306(c)]
The current zoning regulations require a site plan with a special use permit application. The new code did not include this requirement and Staff recommended this should be retained. This was not considered a significant change because it matched the existing code, but was included in the list of key issues because the draft code had been available for public review without the site plan requirement for over ten months.
9. Revisions to Institutional Master Plan (IMP) & Buffer Area (BA) requirements. [Sec. 20-1307(a)(1) and (b)]
The new code proposed the creation of a new zoning category for GPI (General Public & Institutional) uses. Staff proposed changes to the site size requirements for the IMP and BA based on the list of properties in these areas that would be included in the new category. Staff provided an updated list showing the sizes of existing properties that would be in the GPI category based on Study Session questions from Comm. Burress about the recommended 50-acre minimum being too high. The new list divided the proposed properties into six categories:
10. Revisions to the Registration process for Nonconformities. [Sec. 20-1506]
Nonconformities were mistakenly noted in this section, which was supposed to address only non-conforming uses. Ms. Finger explained the difference between these terms and Staff’s recommendation that the text be revised to reflect the intent that not all nonconformities should have to register as non-conforming uses. Staff also recommended providing a stratified and extended time period (two years) for registering existing single-family detached structures in RM and non-residential zoning districts, as these nonconforming uses were created by the adoption of the Development Code.
11. Addition of the requirement for a Market Impact Analysis. [new Sec. 20-1108]
The proposed draft does not identify the triggering mechanism for the Market Impact Analysis requirement (in Ch.6, HORIZON 2020). Staff recommended adding language making the analysis a submission requirement for commercial projects of a stated size consistent with HORIZON 2020. If the Commission lowered the size threshold as suggested by the League of Women Voters, other sections of the code should be modified for continuity.
12. Revisions to the residential densities permitted in RSO & RMO Districts. [Sec. 20-205 & Sec. 20-601(a)]
The RSO & RMO districts, as defined in the proposed document, made all existing RO (Residential-Office) zoning districts non-conforming. Staff recommended defining RSO and RMO districts differently to create the fewest nonconformities when the code was adopted.
Ms. Finger pointed out an additional section of the code stating that sidewalks were required on both sides of local streets in new subdivisions. She said this requirement was projected in the Subdivision Regulations, but had not been discussed at a public hearing and the Planning Commission did not yet have to include it in the Development Code. This text is in the Commissioner’s version of the Development Code unless they choose to remove it.
It was recognized that these issues were not the only ones being raised and significant questions had been submitted by the Lawrence Association of Neighborhoods, the League of Women Voters and other parties. However, Staff recommended approval of the Development Code, based on the consideration of the identified issues and acknowledging that multiple amendments would follow in the next year as the Development Code is used.
PUBLIC HEARING
Betty Lichtwardt, 2131 Terrace Road, referenced the comments in several letters from the League of Women Voters about transitional areas between single-family, multi-family and non-residential uses. She gave the example of a three-story apartment building adjacent to a single-family home, with sideyard setbacks provided according to regulation but with inadequate distance to provide privacy or screening.
Ms. Lichtwardt suggested a standard setback in non-RS districts requiring the setback be equal to a building’s height. This would match the setback requirements for PD districts.
Caleb Morse, 1733 Mississippi, asked the Commission to reject the map designation for the U(UK) District to reflect their previous action rejecting the City/KU Cooperative Agreement.
Alan Black spoke as the President of the League of Women Voters, referenced points included in the League’s communications. Mr. Black said it had become standard practice to allow single-family detached homes to be built in zoning districts that allowed other housing types. He assumed this was in response to market demand. The League was concerned about new homeowners who purchased their property based on the visual appearance of surrounding development, assuming the zoning matched the existing single-family development. These homeowners were then surprised when other housing types (allowed by the area’s zoning) were proposed in their area.
The League suggested dealing with this lack of predictability by requiring a special use permit to build less dense development in non-RS zoning districts. This gave the Commission an opportunity to review the project and alerted potential homeowners of the actual zoning and development possibilities of the neighborhood.
Comm. Burress asked if it would be a simple solution to disallow single-family housing in non-RS zoning districts. Staff said this would restrict the development of mixed use development and cluster housing. It was discussed that regulations could be added later to specifically address mixed use development. The Development Code, as written, already requires a Special Use Permit for single-family detached houses in RM districts.
Ms. Lichtwardt was allowed to comment during Mr. Black’s time that the League suggested cluster housing be allowed by special permit in multi-family districts and by right in any other RS district. Comm. Burress asked the Planning Director to address this suggestion. Ms. Finger noted that the issue raised was discussed in February and was not forwarded by the Planning Commission in the approved document.
Mr. Black said the League also suggested the Development Code should specifically state that building and occupancy permits were a valid method for enforcing the code. Staff responded to questioning that this fact was referenced in the Development Code, but the building permit policy was detailed in the Building Code.
Gwen Klingenberg spoke on behalf of the West Lawrence Neighborhood Association, addressing the reverse issue of the transitional use/setback concern. She showed pictures of an example of a single-family home built next to and taller than a commercial use. The home was built with regulatory setbacks, but overlooked the commercial parking lot and had noise, lighting and privacy concerns created by its own height.
It was discussed that protection against this inverse relationship was not specifically addressed in the new code, but the Development Code sis include larger buffer yards and separation, along with stricter rules about outdoor lighting.
Duane Schwada, local developer, talked about the site plan requirement for showing topographical data for 300’ surrounding a subject property. He said this may be impractical for infill development, since the applicant would have to obtain access to multiple properties to survey their land.
Mr. Schwada was also concerned about the range of people/parties that would be allowed to appeal a site plan action. He said this could result in a long regulatory consideration of what was supposed to be an administrative action.
Finally, Mr. Schwada spoke about the market study requirement for commercial development of a given size. He objected to the language stipulating that the Planning Director would choose the analysis consultant and no commercial development would be considered if the overall commercial vacancy rate was 8% or higher. He said this stipulation was not included in previous drafts and it appeared the Commission was allowing public input after the decisions had been made. Ms. Finger responded that the language about the 8% restriction pulled directly from Ch. 6 of HORIZON 2020 as approved on February 11, 2004. This text had been posted on the website and available at the public library since its approval by the City Commission.
Mr. Schwada responded to questioning that he and other developers were “happy” to do business in some markets with vacancy rates of more than 8%.
In Staff’s opinion, Mr. Schwada’s suggestion to reduce the topographic requirement to 20’ from the property line for infill development was reasonable. It was clarified that, if adjacent property owners would not allow access to their property, it was possible to get basic topographical information from the City’s GIS data and to interpolate contours from that information.
Ms. Finger clarified Staff’s intent to retain the 150,000 square foot threshold for the market study requirement as it was stated in HORIZON 2020.
Paul Werner, Paul Werner Architects, explained his concern about the one-year site plan expiration date. He said it was not uncommon for some types of projects to take longer than one year to begin construction, so tying site plan approval to a building permit (which could expire in six months) was not suitable. Staff was not opposed to changing the expiration period to 18 months and removing the tie to building permit issuance.
Public hearing closed at 8:45 p.m. Chairman Haase called a 10-minute recess. Meeting reconvened at 8:55 p.m.
COMMISSION DISCUSSION
The Commission talked about items from Staff’s list of Key Issues. They discussed which elements they were comfortable with approving as presented and which they wanted to pull for additional discussion. They also discussed how to handle issues that were raised by the public.
Comm. Burress suggested modifying Key Issue #9 to specify a minimum site size of 5 acres for GPI (General Public Institution) zoning, based on Staff’s revised GPI sites table. He also suggested a change to state that the required setbacks in non-RS districts (side, front and rear) adjacent to RS districts should equal the height of the building or the minimum setback, whichever was greater.
Key Issue #1 was removed from consideration to reflect the Commission’s action on the City/KU Cooperative Agreement
ACTIONS TAKEN
Motioned by Comm. Burress, seconded by Vice-Chair Riordan to recommend approval of Staff’s recommended changes to Key Issues 2-12 as outlined in the Staff Report, with changes stated above and subject to conditions 1-3 as stated in the Staff Report.
Motion carried unanimously, 8-0.
Motioned by Comm. Krebs, seconded by Vice-Chair Riordan to approve the November 17, 2004 edition of the Land Development Code and forward it to the City Commission with a recommendation for approval, with the following changes:
The motion was subject to the following revised conditions:
1. Revisions noted in the Errors, Omissions and Clarifications Table and revisions to graphic illustrations be incorporated into the text of the Development Code; and
2. Revision to the height limit on projects adjoining RS districts to require a maximum setback of the building’s height or a minimum setback, whichever is greater, for non-RS districts adjacent to RS districts [Sec. 20-601(a) & (b), and 20-607(h)(2)].
Motion carried unanimously, 8-0.
DISCUSSION ON THE MOTION
It was clarified that neither the Commission nor Staff expected the Development Code as approved to remain a static document. Multiple amendments were anticipated within the upcoming year as the Development Code was used, similar to the existing zoning regulations.