February 1, 2005

The Board of Commissioners of the City of Lawrence met in regular session at 6:35 p.m. in the City Commission Chambers in City Hall with Mayor Rundle presiding and members Dunfield, Hack, Highberger, and Schauner present.  Lawrence High School Student Representative Justin Isbell was present.

PROCLAMATION

            Mayor Rundle proclaimed the year of 2005 as the “Year of Languages.”

CONSENT AGENDA

            As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve the City Commission meeting minutes of January 18, 2005.  Motion carried unanimously.

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to receive the Planning Commission meeting minutes of December 15, 2004; the Parks and Recreation Advisory Board meeting minutes of December 14, 2004; and the Traffic Safety Commission meeting minutes of January 3, 2005.  Motion carried unanimously.

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve claims to 310 vendors in the amount of $2,116,210.03.  Motion carried unanimously.

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve the Drinking Establishment Licenses for Addis Ababa Ethiopian Café LLC, 1008 Massachusetts Street.; La Tropicana Restaurant, 434 Locust Street.; and the Retail liquor License for Glass House Liquor, 2301 Wakarusa Ste: C.  Motion carried unanimously.

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to concur with the recommendation of the Mayor and appoint Brenda McFadden to the Public Incentive Review Committee to a term which will expire January 31, 2008.  Motion carried unanimously.

As part of the consent agenda, it was moved by Schauner, seconded by Hack, approve the purchase of one pickup for Neighborhood Resources/Code Enforcement, from Shawnee Mission Ford off the MACPP bid, for $17,590.  Motion carried unanimously.                  (1)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve the purchase of one pickup for Utilities/Clinton Water Plant, from Shawnee Mission Ford off the MACPP bid, for $15,590. Motion carried unanimously.                                             (2)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to place on first reading Ordinance No. 7857, establishing “stop signs” on Rhode Island Street at 12^th Street.  Motion carried unanimously.                                                                                            (3)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to place on first reading Ordinance No. 7854, establishing “yield signs” on Wheat State Street at Eldridge Street.  Motion carried unanimously.                                                                      (4)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to place on first reading Ordinance No. 7858, establishing an “all way stop” 9^th Street and New York Street.  Motion carried unanimously.                                                                                          (5)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to place on first reading Ordinance No. 7856, establishing an “all way stop” at 10^th Street and New York Street.  Motion carried unanimously.                                                                                           (6)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to place on first reading Ordinance No. 7855, removing “stop signs” on 9^th Street at New Jersey Street. Motion carried unanimously.                                                                                                (7)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve the site plan (SP-10-70-04) for a Family Health Medical Office Building, for the construction of a 9,383 square foot office building located on the south side of 18^th Street west of Wakarusa Drive, subject to the following conditions:

1. Execution of a site plan performance agreement;

2.         Provision of a revised site plan to include the following corrections to sheet 1.1:

a. change “Use Group 9” to “Use Group 18”;

b. change punctuation of Parking calculation from “5.919” to “5,919”;

c. change site summary from “55.023 SF” to “55,023 SF”

3.         Submission of public improvements plans for the off-site storm drainage system must be submitted to the Public Works Department for review prior to release of the plan to the building inspector;

4.         Provision of a revised site plan to include the following changes per the approval of the City Stormwater Engineer:

a. Show the proposed underground detention system on the site plan. Include sheet C-1.0 in the site plan submittal or duplicate underground system information on sheet A-1.2.

b. Revision of the landscape plan to remove planting conflicts with the underground detention system will indicated on the landscape plan.

c. Provision of a note that states “Construction activity, including soil disturbance or removal of vegetation shall not commence until an approved SWP3 has been obtained.”

5. Execution of a stormwater pollution prevention plan (SWP3) for this project per City Code Section 9-903(B) prior to release of the site plan for issuance of a building permit.

Motion carried unanimously.                                                                                                          (8)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve the site plan (SP-11-77-04) for a 2^nd drive-thru lane and addition for McDonald’s Restaurant, located at 1309 West 6^th Street, subject to the following conditions:

1. Execution of a site plan performance agreement per Section 20-1433; and

2. Provision of a building permit from Neighborhood Resources, recognizing that the anticipated site plan improvements were considered to be exempted from the temporary building permit moratorium for the area (Ordinances 7803 and 7853).

Motion carried unanimously.                                                                                                        (9)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to approve the site plan (SP-12-89-04) for an 80’ x 80.5’ industrial building, located at 1100 East 11^th Street, subject to the following conditions:

1.         Execution of a site plan performance agreement per Section 20-1433;

2.         The applicant will obtain a local floodplain development permit per Section 20-9A03; and,

3.         Provision of the following revisions to the site plan:

a. Show the correct address as 1100 E. 11^th Street.

b. For General Note No. 1, location - change ‘Douglas County’ to ‘City of Lawrence’.

Motion carried unanimously.                                                                                            (10)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to concur with the Traffic Safety Commission’s recommendation to establish “stop signs” on Rhode Island Street at 12^th Street; and direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                                                      (11)

As part of the consent agenda, it was moved by Schauner, seconded by Hack, to concur with the Traffic Safety Commission’s recommendation to establish “yield signs” on Wheat State Street at Eldridge Street; and direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                    (12)

The recommendation from the Traffic Safety Commission’s to deny a request for a “20 mph speed limit” on Sierra Drive between 6^th Street and Trail Road, was pulled from the consent agenda for discussion.

William Dann, Lawrence, said although the Traffic Safety Commission (TSC) chose to deny the neighborhood’s point of view concerning this issue, two members of the TSC expressed reservations about the prescribed speed limit. 

He said Sierra Drive was the first northerly street west of the 6^th Street fire station.  Coming south from Trail Road it extended five brief blocks to Trail; and coming from the south from Trail Road was a blind curve to Overland Drive, east and west.  He said vehicles move at a good rate of speed on Overland Drive and the vehicles coming from the west had the right of way which was unknown to many and they would hastily need to apply their brakes.  If coming north on Sierra, by the time you get to Overland Drive, many people were traveling well over 30 mph.  He said at the blind curve, there were nine children that lived in the area.  He said 30 mph was an unsafe speed limit, but this added to the danger of the situation.  Most drivers were partially over the dividing line when they made this turn which made it a very dangerous situation.  When people get to Trail Road, they don’t stop there. 

He invited the City Commission to take a look at this situation before passing judgment on the matter.  The rate of speed for people heading north was way too fast.  He suggested that the Commission postpone their decision for further study or reduce the speed limit to 20 mph because 30 mph was much too high.  He said Sierra Drive was a short street and that speed limit would not cause anyone problems.

Commissioner Schauner asked if the traffic going that fast was neighborhood traffic or was through traffic.  

Dann said he would assume most of it was through traffic.  He had heard people note there were young people in the neighborhood that exceeded the speed limit, but he assumed most of the traffic was people just traveling through. 

Commissioner Schauner asked if people were using Sierra Drive as a cut through to get to Trail Road or 6^th Street.

Dann said he was not sure.  He said it was not traffic volume, but traffic speed.  He said someone had suggested that he ask for a stop sign, but a traffic count probably would not warrant a stop sign or traffic light.  The posted speed limit sign was 30 mph and that was too fast. 

Commissioner Schauner asked if there were any sidewalks on that block.

Dann said there were sidewalks on the west side of the street to Overland Drive.

Chuck Soules, Public Works Director, said the TSC did deny that request.  The 30 mph was established by state law which was 30 mph in any urban district unless assigned otherwise.  Sierra Drive was a residential street.  Staff performed a speed study and found that the 85^th percentile speed for northbound traffic was 30.3 mph and southbound traffic was 30.7 mph and based on that information, staff felt the speed limit was appropriate for the area. 

Dann said he was aware of that speed study.  The 30 mph speed limit was posted at the time of the study so the speed limit seemed irrelevant.  If there had been a 20 mph speed limit posted and a study had been performed, that would have made that study somewhat relevant.  He said it was the City Commission’s job to set a safe speed limit, not the speed limit that the majority of people were driving. 

Vice Mayor Highberger asked if that street warranted any traffic calming devices.

Soules said the volume of cars probably would not warrant a traffic calming device, but staff had not looked at traffic counts.  He said the request was for a reduced speed limit and that was what staff addressed.

Mayor Rundle said he noticed in the TSC minutes that David Woosley mentioned the idea of a traffic circle.  He asked how Soules would initiate that idea or other traffic calming devices.

Soules said they had a traffic calming policy where staff asked that 75% of the affected owners in a certain area submit a request which was presented to the TSC and they would review that request based on criteria such as volume and speed. 

Rick Werner, property owner on Sierra Drive, said although the reduced speed limit would be a nice change there were other aspects involved.  He said there were four streets that cross Sierra and there was not a yield sign or stop sign to slow those cars down on Sierra.  There was nothing to slow the cross street traffic and there was no indication that traffic had to slow down.  Between the blind curve and the cross streets, it was just an accident waiting to happen.  There was really no room for a traffic circle and that type of device would not solve anything.  He said if a 20 mph was not a possibility, then something to detour those cars from going so fast such as speed bumps. 

During the summer time a person could watch near crashes in that area from no signage everyday.  Some sort of new signage needed to be taken into consideration.

Commissioner Schauner said the Commission needed to take a harder look at this situation.  He suggested deferring the action on this particular item for further study.

Wildgen suggested sending this item back to the TSC if the Commission had ideas for that Commission to review.

Commissioner Schauner said he did not think the City Commission should determine what might work.  He suggested that Soules or Woosley bring some ideas to the table for discussion. 

Commissioner Hack said perhaps something more active in the way of speed control should be looked at.  Often times, someone who would ignore a 30 mph speed limit would also ignore a 20 mph speed limit. 

She said this issue needed more studying before it was sent back to the TSC.  She suggested meeting with neighbors to find out what their concerns were.  She said it did sound like this was an accident waiting to happen.

Mayor Rundle suggested using the draft policy to explain the process should the neighbors want to petition.  He said if looking at Arizona Street between 6^th and 8^th Street there was an example of speed tables.

Moved by Hack, seconded by Schauner, to defer the request for a “20 mph speed limit” on Sierra Drive between 6^th Street and Trail Road until further studied.                          (13)

CITY MANAGER’S REPORT

During the City Manager’s report Mike Wildgen said a report on the action items assigned to staff during the January 25, 2005 City Commission meeting was attached, along with an update of previous action item assignments for the Commission to review.  (14)

REGULAR AGENDA

Consider authorizing transit staff to proceed with necessary federal requirements for the use of federal funds for the possible acquisition/construction of a maintenance facility for the public transit system.  Steps to authorize are the preparation of the necessary federal grant application, consultant Request for Proposals, feasibility study, and preliminary design as appropriate.

Danny Keiser, Chair, Public Transit Advisory Committee (PTAC), presented the report.  He said in January of 2003, the City made a request to our Congressional delegation to receive a federal earmarked fund and a maintenance facility for public transit vehicles.  The rationale provided was to facilitate cost efficiencies by having our own facility that included a wash bay, a fueling station, and administrative offices.  In addition, by the City owning its own facility, it would eliminate the ongoing lease payments in the operator agreement and have greater long term control of our inventory.  Facility ownership would also greatly diminish any service interruptions as a result of transit providers in the future. 

He said they were successful in receiving an earmark for over $491,000 as a result of that request.  Since then, they had received additional earmarks for $400,000 and another just short of $390,000 for a total approximately $1.2 million.  Two of the earmarks did require 20% matching funds, but that could be paid from existing state funding. 

On behalf of the Public Transit Advisory Committee, he asked for approval of conducting a feasibility study which would advise PTAC and the City on the following: existing and future transit operations and maintenance needs, evaluation of the existing leased facility to meet those needs, evaluation of sites if a new facility was warranted, preliminary design of a new transit maintenance facility, and development of staging and finance plans.  This would also include an environmental impact study, preliminary engineering, and a reasonable cost estimate of a proposed maintenance facility. 

He said PTAC recommended to the City Commission that the City proceed with the combination of federal earmarks, proceed with federal grant application, consultant for RFP, feasibility study, and preliminary design as appropriate.  He said they were not asking for new funding, just for Commission approval to utilize funds already identified for the purpose at hand.

Commissioner Schauner said in looking at the letter and listening to Keiser, it seemed that the plan was to do several things all in one approval.  He asked it there would be intermediate reports from the PTAC.

Karin Rexroad, Public Transit Administrator, said as they go though each of the phases, a report would be coming back.  The first step was to obligate the money so that money would not be lost, develop the RFP at that time, and bring reports back to the Commission.  She said if the City Commission was uncomfortable with it, the process could be stopped.

Commissioner Schauner asked how much time staff had to confirm the earmarked money from the Federal Government.

Rexroad said it was different for each one.  They had until September for the first one to get everything processed.  It was quite a lengthy process.

Commissioner Schauner asked what would be the most optimistic prediction, if the maintenance facility was built, for that facility to be occupied.

Rexroad said it would take 6 to 9 months for the preliminary and feasibility studies and once all those approvals were made, it would be approximately one to one and a half years to build that facility.

Wildgen said he asked that PTAC look at the existing facility which was leased.  He said he wanted to make sure that staff did not bypass that opportunity before looking at a new site and that could shorten the process.

Moved by Hack, seconded by Dunfield, to authorize staff to take the necessary steps to proceed with the federal requirements for the use of federal funds for the possible acquisition/construction of a maintenance facility for the public transit system.  Motion carried unanimously.                                                                                                                                (15)

Consider Traffic Safety Commission (TSC) denial of the request from Water’s Edge to construct PERPENDICULAR PARKING within the roadway right of way of Indiana Street adjacent to 847 Indiana Street.  Motion carried 6-1.

Dan Sabatini, representing the Water’s Edge, said they were requesting the use of the right-of-way for additional parking for Water’s Edge to increase the parking needs mostly during the summertime months when that business was most active.  The additional parking would provide 7 parking spaces and would be available to the public. 

He said the Historic Resources Commission approved their request and it would not affect the environs of the Old West Lawrence Neighborhood. 

He said they also were required to go before the Traffic Safety Commission in which they had denied their request for the right-of-way.  Because the TSC scope was limited in how they reviewed the project, they believed that if looking at the broader picture of what this did for Lawrence as a whole in keeping with the density of Lawrence and that the property was viable in this area, there was a valid case for allowing the parking.

Commissioner Schauner asked if the seven additional spots included the spots that currently existed.

Sabatini said it would be an additional three spots and a net of four.  He said the amount of parking spaces might seem minimal, but it was a lot when talking about 5 customer parking spaces.

Vice Mayor Highberger asked if all of those spaces would be public parking spaces.

Sabatini said yes.

Susan Davis, one of the owners of Water’s Edge, said that they had overwhelming support from their neighbors.  She said the record showed that there were no accidents due to parking on either of the other two corners that already had the existing similar parking; that the parking looked to be more conforming than not; and traffic slowed on Indiana Street as it traveled south toward the stop sign at 9^th and Indiana on their side of the street.  She said there were 5 parking spaces in front of their shop and 4 more parking spaces would be almost twice the number of parking space, assuming all those parking spots were not theirs.  She said their customers as well as the neighbors would have more parking.  She requested that the City Commission approve the parking request.  She said it was important to support downtown businesses.

Mayor Rundle said the Old West Lawrence Neighborhood Plan encouraged the retention and health of the businesses in the neighborhood.  He said for those businesses to be adaptively reused for infill to occur and for there to be investment versus blight, he would like to find a way to accommodate this request.

Commissioner Schauner said he appreciated Traffic Safety Commissions concerns about vehicular safety, but it seemed that the experience at that corner was perhaps more instructive than their concern about what might happen.  He was inclined to approve the perpendicular parking assuming the City retained the ownership and the cost of installation and maintenance was the applicant’s responsibility.

Mayor Rundle said staff had mentioned that if those parking spaces were approved that the City should enter into a contract.  He asked if that would function like a use permitted upon review.

Wildgen said yes.  He said the City would still maintain control of that space.  He said it would be similar to a sidewalk dining license in which it could be taken away if the parking wasn’t working.

Commissioner Hack asked if a Use Permitted Upon Review was required.

Corliss said this would not require a UPR.  It was the City’s right-of-way and the City would retain ownership.  He said his recommendation would be to enter into a license agreement.  He said that agreement would not give them a property right, but the right to use that property.  He said the City would then burden them with the requirement of building and maintaining those parking spaces to City standards.  He said they could discuss what would be appropriate for a revocation procedure. 

Mayor Rundle said he wanted some means for revisiting the situation if problems developed.

Vice Mayor Highberger said he thought the request seemed consistent with what was already there in the neighborhood.  The neighborhood did not have any opposition which was his only concern.  He said as they moved toward looking at neighborhood design, this was an excellent example of how commercial business could co-exist nicely with a single-family neighborhood.  He said the businesses were obviously an asset to the neighborhood as judged by the comments of their neighbors.  He supported the request.

Commissioner Hack said the corner was one of the most beautiful corners downtown.  She said she supported downtown businesses and allowing the Water’s Edge the most use of their area was appropriate.  She said this was a reasonable use.

Moved by Schauner, seconded by Hack, to approve the request from Water’s Edge   to construct a perpendicular parking within the roadway right-of-way on Indiana Street, adjacent to 847 Indiana Street, subject to an appropriate license agreement between the City and the applicant.  Motion carried unanimously.                                                                               (16)

Consider adopting findings of fact, approving annexation and rezoning requests, and authorizing drafting of ordinances for placement on future agenda:

a) A-10-05-04:  Annexation request for approximately 13.3626 acres, located southeast of Lake Estates Subdivision, between E 920 Road and Lake Alvamar.  Submitted by Peridian Group, Inc., for Lake Estates at Alvamar, LLC, applicant.  Chris Earl, Mark A. & Marsha G. Buhler, Yankee Tank Investors, and Alvamar, Inc., property owners of record. (Item 8A; approved 10-0.) 

b) Z-10-50-04:  A request to rezone a tract of land approximately 3.6348 acres from A-1 (Suburban Home) District to RS-2 (Single-Family Residential) District.  The property is generally described as being southeast of Lake Estates Subdivision, between E 920 Road and Lake Alvamar.  Submitted by Peridian Group, Inc., for Lake Estates at Alvamar, LLC, applicant.  Chris Earl, Mark A. & Marsha G. Buhler, Yankee Tank Investors, and Alvamar, Inc., property owners of record.   (Item 8B; approved 10-0 to lesser change of RS-1.) 

c) Z-10-51-04:  A request to rezone a tract of land approximately 9.7277 acres from A-1 (Suburban Home) District to RM-D (Multiple-Family Residential) District.  The property is generally described as being southeast of Lake Estates Subdivision, between E 920 Road and Lake Alvamar.  Submitted by Peridian Group, Inc., for Lake Estates at Alvamar, LLC, applicant.  Chris Earl, Mark A. & Marsha G. Buhler, Yankee Tank Investors, and Alvamar, Inc., property owners of record.  (Item 8C; Planning Commission recommended rezoning a portion of the subject property (approximately 3.1 acres) to RS-1 (10-0) while initiating a rezoning of the remainder to RS-5 for consideration at the February Planning Commission meeting)

Sheila Stogsdill, Planner, presented the staff report concerning the annexation and rezonings located southeast of Lake Estates Subdivision, between East 920 Road and Lake Alvamar.  She said there were unanimous recommendations from the Planning Commission for the annexation of the entire area requested which was slightly more than 13 acres.  There was also a unanimous recommendation to rezone the area that was proposed to be rezoned from A-1 to RS-2 to RS-1 which was a slightly larger lot size in the existing code, 7,000 square feet versus 10,000 square foot minimum lot sizes.

There was also a recommendation that a portion of the area that was proposed to be rezoned to RMD would also be rezoned to RS-1 and the plat that was submitted included an east/west cul-de-sac and the RMD request was all of the lots on the south side of that east/west street wrapped around the east side of the cul-de-sac and back around.  The additional piece that was recommended for RS-1 was everything that would be along the north side of that new street. 

The remainder of the RMD request was tabled and the Planning Commission actually initiated a rezoning request to consider that southern side of the street to be rezoned to RS5 when the new code would become effective which would allow for duplex structures to be built, but with a minimum of 10,000 square foot minimum lot size and the ability to have those be duplex structures because the RMD was proposed to be rezoned to RM12 when the code was adopted.  She said that portion which was the southern side of the new street was pending and scheduled on the February agenda.  She said what the Commission was being asked to act on in regards to the rezonings was the north side of the new street.                   

She said there were protest petitions that were filed by surrounding property owners and the area represented in the protest area for the single-family portion represented more than 20 percent of the protest area.  The protest petition stated that it was protesting what was requested which was RS-2 rather than RS-1 that the Planning Commission recommended.  The protest petition for the RMD portion did not include enough land area to be sufficient for that 20 percent area.

Commissioner Schauner said Stogsdill said the protest concerned an RS-2 rezoning.  He asked if that change was made at the Planning Commission level.

Stogsdill said yes.  The Planning Commission used the lesser change table that was a tool in the zoning ordinance for them to approve something that was a less intense rezoning between what was requested and the current property’s zoning.

Commissioner Schauner said the lack of a protest about RS-1 was based on the protesters not knowing that RS-1 was going to be something that the Planning Commission was going to act upon.

Stogsdill said the statute said that the property owners had 14 days following the public hearing to submit the protest petition.  She said she believed it was submitted after the Planning Commission hearing.

Michael Keenan, Peridian Group, representing the developers, said this area was currently approved for a commercial use.  He said he developed an area plan to take a look at a broader picture.  He said this was a small area bounded by an arterial road, a state highway, and Yankee Tank Lake (Lake Alvamar).  The challenge of a Land Use Planner was how they would transition from arterial highway, commercial, 22 units per acre uses back into RSE (Estate Sized Lots).  He said this was a transition that had to happen rapidly.  He said his preparation was to develop an area plan which accomplished that working in from the west and south especially in the areas that they currently had planned, paying particular attention to the Henriquez and Paley properties which had large estate sized houses currently built. 

He said there was currently a plan for the Paley property which ended in a cul-de-sac and there were new concerns about two ways in and out of the subdivisions.  Also looking at the grade slope of the Henriquez property, he developed a plan saving their houses and producing a pocket of RSE in that area.  He said the question was how did you get from 22 units per acre and 12 units per acre to RSE and that was the challenge.    He said Longleaf was a combination of single-family and duplex lots and he wanted to use that mechanism to make a rapid transition from high density, multi-family residential to RSE.                 

He said Longleaf had a few specific designs and those lots transitioned from large lot single-family homes which he envisioned something similar to that on the northern edge of the property and had unique design characteristics in that they had side entry garages.  He said the solution that they came up with was to incorporate that idea with the side entry garages on the south which directly abutted a 12 unit per acre project.  Across the street, there was a single-family RS-1, 10,000 square foot minimum lot abutting what could be an RS-1 or RSE, redevelopment of the Paley and Henriquez property in the future.

He said what this plan accomplished, conformed to good common sense planning which was transitional use.  It also conformed to every page, paragraph, word, and every letter of Horizon 2020 in that it established a transitional use from higher density to lower density uses.  He said his client had spent millions to bring in waterlines, put in a new roundabout, and bring a street into that location to open up that area.          

He said another issue was road networking.  He said what this plan did was that it added a street connector, 2 ways in and out.  He said there was a 1500 foot cul-de-sac without this project which exceeded the City standards.  He said there was going to be a 22 unit per acre development built at that location soon.  There was also a mile long cul-de-sac from another side.  He said from a public health, safety, and welfare, interest, it was critical that the connections be made now.  This conformed to every plan for a traffic network pattern in the future and solved two traffic problems. 

He said there had been some concern expressed by neighbors that all that traffic was going to leave through their neighborhood, but he did not believe that would happen. 

He said they had a good plan.  He said he took this plan to the Planning Commission and received a 10-0 vote.  He said they originally requested RS-2, but Mr. Banks expressed that he would be more favorable to RS-1 and they agreed to that idea.

The Planning Commission had concerns about the transition of RMD into the new code.  He said at his request, he asked that this be tabled and they would consider RS5 in the future.  He said he would appreciate the City Commission’s support.

Commissioner Schauner asked what the portion that was off the table was.

Keenan said he had asked the Planning Commission because of issues brought up by the League of Women Voters about how RMD transferred in the new code to something that wasn’t duplex.  He said his intent was to work with the Planning Commission and the League and asked them to table this issue.   He said his intent was to construct duplex as a transition from 12 units per acre into single family.  He said the Planning Commission wanted RS3 zoning which was even denser, but RS3 did not allow shared driveways which he was making a detailed requirement of his plan.

Mayor Rundle said the map showed future road going out.  He asked if there was any anticipation of how soon that might take place.

Keenan said that would happen sooner than later it all depended on someone striking a deal with the Breithaupt family.  He said this issue was brought up with the Planning Commission and if reading the minutes, that extension was in the Capital Improvement Plan to guarantee that would happen.  In reality, development pressures would push that into redevelopment and a developer would end up paying for that road.

Commissioner Highberger said he appreciated the side driveway design.

Keenan said another point was that a collector street would be built.  Also, their intent was to build big monuments so that someone driving by knew that they were entering a residential subdivision.  The intent was to minimize any cut-through traffic.  He said they were going to provide a temporary turn around and build big monuments to create a visual passageway.

Mayor Rundle called for public comment.

Francois Henriquez, property owner in the Lake Estates neighborhood, said their neighborhood currently consisted of very large estate lots in an unincorporated portion of Douglas County.  The most recent area development plan was privately created for the Lake Estates Subdivision back in 1974.  There had been no updated area development plan in 30 years.  However, approximately one year ago the applicant received zoning and plat approval on land just south of the property that was currently being discussed. 

This applicant was developing what would turn out to be a dense 4-plex apartment project on that land, 22 units per acre.  Those 4-plex apartments were not part of the 1974 plan nor were they even remotely contemplated by Horizon 2020.  According to the Planning Commission staff they were told that the City permitted that high density project as the lesser of two evils as compared to County Commercial zoning that had been in that district and in effect for 30 years, but had not been taken advantage of.

He said tonight the applicant was before the City Commission seeking annexation and zoning of approximately 13 acres between their 4-plex apartment project and the properties immediately to the north including his property. 

The applicant had stated that good planning principles dictated that the 13 acres provided a medium density transition zone from their high density 4-plex apartments to the very low density residences to the north including their property. 

One year ago, contrary to Horizon 2020 and no way contemplated by the area development plan, this applicant was allowed to create this problem of this high density area by putting up the 4-plex apartments.  Now the applicant argued that they should be allowed to have duplexes between the high density project and the ten acre lots that were currently in place in the name of good planning principles, but he submitted to the Commission that if that permitted this project, the Commission would be rewarding the applicant for creating a more dense residential neighborhood than was ever contemplated by Horizon 2020 and the area plan that was in effect since 1974.

He said rather than allowing the Lake Estates neighborhood to continue to develop in a piecemeal fashion as had been the case recently, now was the time to work with residents in the neighborhood to develop an up-to-date area plan that was consistent with Horizon 2020.  If the City Commission insisted on allowing this project to proceed, then it was his opinion, given that the same applicant controlled both the project that would start breaking ground in a couple of days and the project currently under review, that the applicant, as a developer, was in the best position to deal with the transition and could deal with the transition between the 4-plex and the duplex for berms, planting, and other development tools that they had at their exposure, rather than imposing this higher density project on the neighborhood that was not consistent with Horizon 2020. 

On a separate issue, as part of the project, the applicant wished to connect the proposed Lake Estates Drive with the existing 920 Road.  This would turn a residential street into a de facto collector street through the neighborhood.  This issue was also contrary to the comprehensive plan in effect, Transportation 2025, which called for the collector street to align with East 902 Road.  He said that was drawn on the plan, but admitted there was no current plan for when that would go through, if it ever went through.  Until it did, 920 Road, if connected to Lake Estates Drive, would be the de facto collector street.  He said that idea was dangerous.  He said a person could drive down 920 Road today to see that it curved sharply, had poor visibility, and had a very steep grade which he thought exceeded 10 percent.  The existing roads configuration was dangerously unsuitable to handle the increase in traffic that the applicant’s proposed development would generate.

He spoke on the protest petition in which there was some question as to whether those petitions were valid.  He said the state law clearly established an affected property owner’s right to voice concerns when an applicant requested a zoning change.  Having clearly given this property right to Kansas property owners, Kansas law cannot be read to permit this right to be easily lost because of technical wording in a non-binding recommendation of the Planning Commission.

He said in that case the petitioners were very clear in their intent to protest the applicant’s proposal which could not be denied.  While the Planning Commission did recommend the lower density than what the applicant had requested, staff continued, it seemed, to request to recommend what the applicant originally sought.  He said as an affected property owner he was forced into a catch 22 of trying to guess whether he should protest what the applicant requested, what staff recommended, or what the Planning Commission recommended.  If he guessed wrong, his petition would be ruled invalid even though it would be obvious what he was trying to protest.  He said it seemed clear what the neighbors were trying to protest and putting the neighbors in catch 22 hardly met the state law’s objective of granting affected property owners a legal right to protest a zoning change.         

He said he respectfully requested that the City Commission ignore the advice of staff and rule that the protest petitions were valid and therefore a three-fourth majority of the Commission was required for action on the annexation and zoning requests. 

He also urged the Commission to deny the annexation, rezoning, and the plat of the subject property for the reasons stated.  Instead, he requested that the Commission direct the Planning Commission and its staff to work with the public to create an area plan for the Lake Estates area that was consistent with Horizon 2020 and Transportation 2025.

George Paley, a resident of Lake Estates, said there was a traffic issue with people trying to get out on to Clinton Parkway and the only other option was to go out 920 Road.  He said before moving ahead with the next group of acreages, the whole area needed to be addressed to develop a plan.  He said it might hold up the development awhile, but in the long run a better plan would be in place for their area.

Lee Rader, a resident of Lake Estates, said that the area was a unique pocket and she advocated the need to be careful in developing that area.  The area had a nice mixture of homes in the area with rural characteristics and was close to the City of Lawrence.  She said careful planning needed to be done to that area.

She said the applicant had stated that there was a dirt or gravel road that went through the area, but it was paved.  She lived on the curved portion of the road that came down past the Paley property that was now a local street and it would become a collector street with this plan. She said she was concerned with the amount of traffic with the higher density development.  She asked the Commission to consider the whole area more carefully.

Doug Garber, resident on East 920 Road, said he lived on that road for over 20 years.  He said he supported the proposed development based on the fact that the ground south and the proposed ground had been anticipated to be part of the City of Lawrence for over 20 years.  He said that proposed area which included his property was surrounded by the City other than the west side.

He said this was an appropriate use of the ground based on high density to the south. The transition from the south to the north was even more important because he had lived in that area a long time trying to figure out a way to get to Lawrence without going on 10 Highway which was very dangerous.  He said he had driven through a cornfield to try to get to Lawrence because it was an easy way to get to Clinton Parkway, but that way was eventually blocked off and they had to drive around.  He said it was a couple of miles to get to the City when as the crow flies, he might only be 1,000 feet away from the City.

He said he did not think anyone should be surprised that this type of development was happening.  He said this development was not surprising.  The only surprise was that it took so long for Lawrence to come beating on the door to this area.

Jeri Breithaupt, resident on East 902 Road, said there were 7 Breithaupt families that had an interest in 5 properties along 902 Road that were affected by this development. The original 160 acres was purchased by his parents in August of 1943.  For 62 years their families had been on those properties.  He said his parents sold the majority of this land back in the mid 1970’s.  He said his parents thought that was the right decision at that time.  He said he had known for close to 30 years that development would one day become a reality and he felt fortunate that it had taken that long to get to this point.  He said he was not opposed to the proposed development behind their properties. What he was concerned about was the references to a street going through their family’s property. 

He said in the past, this proposed street was called a bus path.  He said he was not certain what a bus path was, but he did know that this was a driveway that their parents put in to get to their house and also to their barn.  He said their family, as a courtesy to the school bus drivers, gave them permission to use this driveway in order to save the bus driver’s time from turning the buses around.  He said as long as they were living on that property, that driveway needed to remain a private driveway.

He said as property owners they wanted to control the timing of this street.  They also questioned whether that proposed street was a viable option because of the effect it would have on the neighborhood and the certainty of additional traffic congestion at an already congested intersection at the Lawrence Trafficway and 1500 Road. He said a day would come when his family would decide to change the properties as they were now being utilized.  He said this would not be an easy decision for his family and he did not see that happening any time soon.  This land, the lifestyle and culture of this area would be changed forever.  Not only for his family, but for everyone that lived on 902 Road. 

He asked that the City Commission weigh carefully the decisions they made realizing that the people in this area and their lives were going to be greatly affected.

Price Banks, Attorney, spoke on the protest petitions.  He said first of all the zoning was bifurcated and it pointed out when a single development and someone made a decision, whether it was for protest purposes or not, to start dividing that up into different zoning cases.  Staff indicated that RMD portion could not meet the valid protest requirement.  The entire development ought to have been included as one case and therefore one zoning and subject to one protest petition.  It was not.  He said that was going to allow a number of situations where the developer could avoid any opportunity for protest simply by filing separate applications.

He said K.S.A. 12-757, talked about protesting the amendment.  The amendment language began in the portion of that statute where it talked about the application and carried through even after it talked about the Planning Commission being able to use the lesser change table. 

In the protest petitions that were before the City Commission it was clear that the protest was for Case No. 105004 and Case No. 105104.  He urged the City Commission to find the protest petitions valid and that it would require three-fourth of a majority of the Commission to take action on the annexation and zoning requests.

He said someone said at the Planning Commission meeting that this was simply Planning 101 to place fairly intense single-family and duplex uses between dense apartments and very low density single-family uses.  He said he taught Planning 101, actually it was a 700 series class at the graduate school for Urban Planning at the University of Kansas and they never taught that and he never learned that in school.  He said what he did learn was that you ought to protect what was there.  What the comprehensive plan said was that the setbacks for new development for high density development that was adjacent to low density development ought to match the low density development setbacks.  With the development that was proposed, that was impossible.  He said what City policy had said was if the infrastructure did not exist then you shouldn’t develop until that infrastructure was available.  He said that idea had been enforced a number of times whether it was sewer systems, water systems, or transportation facilities.  In this case, there was no collector street to serve the development that was proposed.  There would not be a true collector street until there was some connectivity on both ends of that street with either an arterial or another collector street.  If that street was connected as proposed on this plan, there would be a substantial increase in traffic through Lake Estates and would create a de facto collector street.

He said this development was premature and there was no plan for the area.  The infrastructure did not exist. The one area that the Commission had total unchallengeable authority was in annexations and they urged the City Commission to reject that annexation and not to be in a particular hurry for this area to grow until the appropriate infrastructure was available.

Commissioner Schauner said if the Commission rejected the annexation request what would be available to the applicant under County zoning in the way of development of that property in question.

Banks said the property was platted in lots slightly smaller than the lots on the north so it could be developed as currently platted.

Commissioner Schauner said the lots were significantly larger than currently proposed in this application.

Banks said correct.         

Patricia Sinclair, Lawrence, said she had certain remarks about the protest petition process.  She said it seemed what was being said was that the applicant submitted to the Planning Commission a request for rezoning to RS-2 zoning and the Planning Commission gave them  RS-1 zoning and tonight they were asking for RS-2.  She said if that was so, it seemed that the applicant should have filed the protest petition to the Planning Commission.  Since the Planning Commission voted for RS-1 zoning there seemed not to be any legal standing for the applicant to come forward requesting RS-2.  If the applicant disagreed with the Planning Commission’s findings to RS-1 zoning, then the applicant had the responsibility to protest such a finding.

She said in 2003 a number of Barker neighbors including herself had quite a bit of involvement in protest petitions.  She said there was a parcel of land that became developed that was zoned RS-2 on East 19^th Street which was two parcels almost 12 acres, and the applicant came forward and requested repeatedly rezoning to PRD-1 for trailer parks and other uses.  She said protest petitions had successfully been launched.  

She said when the last application was made for rezoning, she attempted to do a protest petition.  She said state law dictated 14 days so a person would need to move quickly because a list was needed from the courthouse which took them several days to prepare and that was the list of the legal owners of the abutting properties. 

She said she had a lot of dealing with the Planning Department and also received documents from the City Manager’s office trying very hard to do things right.  The one issue that finally made it impossible for her to get a protest petition to the City Commission in time was the City’s requirement that there was individually notarized protest petitions for each legally owned abutting property.  She said she was shocked by that requirement, and she was told this was a state law.  Of course the 14 days was gone by now and she had contacted people in other communities where there had been protest petitions along with area departments of state government and she tried her best to read the statutes.  She said ultimately her State Representative Paul Davis, requested an Attorney General’s Opinion on this matter which was issued June 25, 2003, Attorney General Opinion 2003-18.  That option said that there was no basis in state law for what she was required to do by the City.  She said she would have definitely mounted a successful protest petition whether they would have been able to have one person vote with them to overturn that rezoning.   She said in the meantime, she made sure that the City Manager’s office was aware of the fact that this protest petition was in the process of being reviewed.  She said they had told her that during the period of review the City would be contacted and the City would in fact hold back on whatever they were doing until they heard the results of this opinion which the City declined to do when they knew the opinion had been entered.  She said it was possible the code was changed during the past year, but it was not changed on-line.  She said she believed the process itself that came out of the Planning Office was extremely difficult to understand and follow and additional requirements were placed on there that were not legal according to the Attorney General.  

She said in her plight, basically she thought she was right and should have been able to do a protest petition and without hiring a lawyer to take the City to court she had to let the rezoning proceed. 

Keenan said when looking at the fourth page of the Planning Commission minutes, Banks suggested that their original request to RS-2 zoning was not palatable.  Keenan noted that Banks said that RS-1 zoning for just the northern half would also be an improvement, but not ideal.  Not one person in the ten people who voted for this zoning in the Planning Commission asked him to amend his request.  He said he had requested that the RS-2 zoning be changed to RS-1 in order to be a team player.  He said that was what should have been protested.  He reiterated that at that meeting his request was for RS-1 zoning.

He said David Corliss said the protest petition was not valid. 

He said Commissioner Schauner mentioned what his options would be should the zoning be County zoning.  He said the County Commission would toss his request out because he would not meet fire requirements.  He said there was also a lot split in the Lake Estates which he did not know how that was approved because they were accessing via a mile cul-de-sac and technically that shouldn’t have happened.  He said Paley had a preliminary plat to split his lot into eight plus lots, but he could make buck so that worked for him. 

He said basically, without this piece of property being in the City, he could not do anything.  He said he made every effort to prepare a good plan.  He said transitional zoning was a good idea and it was a fundamental basis of Horizon 2020.

Mayor Rundle said the Commission appreciated everyone’s view point and the Commission was supposed to weigh those view points, not necessarily look at this as a debate that the Commission would vote on, but he did offer Keenan a chance to comment.

Henriquez said the applicant just told the Commission that there would be a lot of traffic and that was their concern.  He said Breithaupt mentioned that his family was not interested in that road happening any time soon which was the road required by Horizon 2020 and Transportation 2025.  He said the traffic would turn that road into a collector street.

He said the neighbors did not have any input in the applicant’s plan and there had been no notice or public hearing which was not consistent with Horizon 2020.  He said this was not a plan, but an idea of a possibility.

Vice Mayor Highberger said Lawrence was going to continue to grow and it was decided as a community that growth needed to be contiguous to the City.  He said anyone who had moved within a few miles of Lawrence hoping for country living was going to be in the same situation.  He said Paley had acknowledged that development was going to occur.  Making that road connection that was proposed would be a very bad mistake.  Ultimately the East 902 Road needed to be connected.  As pointed out, in order to have an area plan they needed to have a public process and public input.  He said even though the design worked well, he could not move forward until they knew how the roads were going to connect.  He said although he was generally supportive of the design, he suggested deferring this issue until there was an area plan with public input.

Commissioner Schauner concurred and added an additional observation.  He said one of the folks that spoke about supporting the plan went on to talk about how important it was to save a couple of miles travel, so important that it meant driving across a cornfield which proved what everyone thought for a long time and that was traffic was kind of like water it would find the easiest way to get from point A to point B.  He said that suggested that there would be a fair amount of traffic past the Henriquez and Paley properties.  He said he thought the people that lived there and would live there deserved an area plan. He said they deserved a big picture look at what that area would consist of whatever the timetable might be.  To do this type of piecemeal approval did not strike him as in the best interests of either the applicant ultimately, abutters, or the City.  He said he was not in a position to support either the annexation or the requests for rezoning.

Commissioner Dunfield said he would defer in that after going through all of the staff reports and consideration of the Planning Commission it seemed that there had been a very deliberate effort made that the proposal in terms of transitions of density and housing types and other issues seemed very much in keeping with the principles of Horizon 2020 and what they were after.  The essential problem was the uncertainty of when property owners would be willing to make decisions to allow plans to be put into place.  He said it was not so much a question of whether the transitions were going to happen or whether the basic land use concept was appropriate or not, the hang up was that it might be generations before all of those pieces could be put in place to make the whole plan work.  The question was how they would make the fairest decision for all the parties under those circumstances.  He said he felt the Planning Commission did its job well in this case.          

Commissioner Hack concurred with Commissioner Dunfield.  She said she agreed that traffic tended to go the easiest way and in looking at those areas that were already approved, clearly the easiest way to get out was on a finished City standard road as opposed to winding though a neighborhood.

She said ultimately connecting through the Breithaupt property was going to be desirable, but that was their timetable not the City’s.  She said when the Planning Commission received a 10-0 vote that was an extremely significant vote for the City Commission to take a good look at.  She supported the annexation and rezoning requests.

Mayor Rundle said he agreed with all the Commissioners.  He said while this particular development proposal was approved by the Planning Commission, it was setting up the development of the rest of the area by determining where streets were going to be and the character of the area.  He said he concurred with the need for a more specific area plan.  He said he did not think the Breithaupts would be able to wait generations for development to proceed in the area, but those major elements of connecting streets needed to be put in place. 

He said one of the threads of argument was whether or not transitional zoning was a protection.  He thought that type of zoning was a protection, but it was not the only protection of property and there were some that argued that there needed to be alternatives considered as well and that was what an area planning process would bring to light.                

Commissioner Dunfield asked if there had been some discussion about a timetable for a possible area plan for this area.

Finger said the Planning Commission did ask staff about that timetable.  She said staff responded that timetable would be the end of 2005 at the earliest to get to an area plan for this area.

Moved by Schauner, seconded by Rundle, to deny the annexation (A-10-05-04) request for approximately 13.3626 acres, located southeast of Lake Estates Subdivision, between East 920 Road and Lake Alvamar.  Aye: Highberger, Rundle, and Schauner.  Nay:  Dunfield and Hack.  Motion carried.                                                                                                (17)

Moved by Schauner, seconded by Rundle, to deny the request for rezoning (Z-10-50-04) of approximately 3.6348 acres from A-1 (Suburban Home District) to RS-2(Single-Family Residential District); the property is generally described as being southeast of Lake Estates Subdivision, between East 920 Road and Lake Alvamar.  Aye: Highberger, Rundle, and Schauner.  Nay:  Dunfield and Hack.  Motion carried.                                                            (18)

Moved by Schauner, seconded by Rundle, to deny the request for rezoning (Z-10-51-04) a tract of land approximately 9.7277 acres from A-1 (Suburban Home District) to RM-D (Multiple-Family Residential District); the property is generally described as being southeast of Lake Estates Subdivision, between E 920 Road and Lake Alvamar.  Aye: Highberger, Rundle, and Schauner.  Nay:  Dunfield and Hack.  Motion carried.                                                            (19)

Finger said an action that was opposite of what was recommended by the Planning Commission would take a super majority vote and the findings would need to be revised.

Corliss said there was a motion to deny the annexation and rezonings.  He said the procedure would be that staff would come back with the findings of fact to deny the annexation and rezonings which would be placed on a consent agenda for the Commission to consider.  He said unless there was a motion to approve the rezoning, there was no point because that motion would only received two votes.

Commissioner Dunfield said the message he heard most clearly was the City Commission’s desire for an area plan prior to annexation and rezoning. 

Commissioner Schauner said he would like to be sure there was some findings proposed with respect to Horizon 2020 and the lack of appropriate ingress and egress to that property to the west.  He said he thought that was part of what Horizon 2020 required.

Commissioner Dunfield said the issue of the protest petition really did not play into the outcome, but he thought there needed to be a staff report on the protest petition process.

Corliss said staff would provide that report.  He said there was the Attorney General opinion and then there was the retraction of a portion of that opinion and staff would provide the City Commission with additional information on that opinion. 

Consider adopting on second and final reading, Ordinance No. 7851, adopting the new Development code and the new zoning map, pursuant to Commission direction on December 14, 2004, January 18, 2005 and as further amended pursuant to staff memorandum.  The new zoning map will include City Commission approved rezonings for the CP and RS5 properties, as approved on January 18, 2005.  The Code and map will take effect on February 18, 2005, except the “U” University District provisions, Section 20-218, will not become effective until July 1, 2005.

Linda Finger, Planning Director, presented the staff report.  She said staff’s memorandum tried to address the issues that were raised in the last two weeks, primarily those issues concerned the non-conformity, specifically detached dwellings or single-family homes in RM districts.  The second larger issue was the ability for certain uses to be allowed in the downtown area as far as bars and other existing permitted uses in the downtown area would be permitted to exist.

There were three letters the City Commission received in regard to the new development code.  One letter was in direct response to the Jan 18^th meeting and a subsequent meeting with an ad hoc group of people including appraisers, attorney’s, realtor’s and banking and loan individuals that dealt primarily with Article 15 which dealt with non-conformity.

She said staff had made some proposed recommendations to Article 15 that would address the issues that were raised as far as assurance that, based upon K.S.A. 12-758, that a use could be continued if it was legal at the time the use was created with the adoption of the new code.  Also, if a business decided to expand or alter its use, a process would need to take place recognizing that it was a non-conforming use and a registration process would be required.    

Staff recommended that for residential uses, in any district, if the residence was destroyed by 50 percent or more, that residence would be allowed to rebuild as long as it met the parking and setback requirements of the district that it was in. 

In regard to the League of Women Voters letter which addressed their concern with staff’s interpretation and recommendation to eliminate the Special Use Permit requirement for detached single family dwellings in RM districts and how they thought that was not a good idea,  staff believed the interpretation of Ordinance 7851: the Special Use Requirement in RM districts would make the existing detached single family dwelling in RM districts non-conforming.  She said in 20-1306, was a use permitted by right, but was now regulated as a Special Use.  She said staff had drafted some language in the new code that would allow, as a minor change, the reconstruction of a detached dwelling if it was destroyed and had a special use requirement. 

The other option would be, as staff originally recommended, to just permit that use and “P’ would have an asterisk next to it which identified that there was a use standard and the use standard would be changed which indicated that a detached dwelling would be required after the effective date a special use permit which would then allow the detached dwellings that existed today in RM districts.

She said D&D Tire had brought up a very valid concern that their use was not a use that was permitted by right.  That business would be required a special use permit, but to be more expansive the City Commission could simply add a “P” or permitted use in the downtown district which would be under vehicle sales and service, light vehicle repair which would cover tire and repair services.

She said staff still stood by all the previous recommendations that were made at the January 18^th City Commission meeting.      

Mayor Rundle asked once that automatic special use provision occurred would it get a zoning classification so that it was clearly identified.

Finger said no.  She said it would be handled like a UPR and that was not reflected on the map, but it was something that was in the code.  She said it would be more a field identification because a detached dwelling would not be a permitted use in an RM district.

Commissioner Hack asked if that particular designation would still be considered non-conforming if it required a UPR and were there reasons why, in the future, it would not be permitted.

Finger said the message staff received was with a permitted use.  She said because there was a contingency regardless of how much it needed to be smoothed over, it was not a permitted use if it was a special use.  It would be a use that had special requirements to allow it to continue.  In this case it was to allow it not to continue, but to allow it to expand or be altered.

She said there was no communication on medical facilities, but there had been questions raised about hospital facilities.  She said staff had researched different regulations and they believed that the City regulations were not such that outpatient services and/or diagnostic treatment facilities would be disallowed.  She said staff came up with a better definition for hospital which staff had extracted from the Wichita, Sedgwick County ordinance that staff thought the City Commission might like.  She said that definition was consistent with the definition that was created in Horizon 2020.

Mayor Rundle called for public comment.

Price Banks, Attorney, said in the last two weeks, there were 20 changes that needed to be made in the new development code and there were certainly many more changes out there.  The current regulations had been in place for 38 years and it did not seem that a couple of months would make much difference.  Concerning the new development code, he found an instance that had not yet occurred.  He said if the City required right-of-way in front of a house and that right-of-way was going to make that lot a non-conforming lot, then if that person bargained with the City and sold that right-of-way to the City, that person would be subject to prosecution under the zoning regulations.  He said that person would be in a position to not talk to the City and the City would need to exercise the power of eminent domain and take that right-of-way.  He said if that person voluntarily took any type of action that made that lot non-conforming by conveying a parcel then that person would be prosecuted according to the terms of the regulations.

He asked how many of those provisions were in those 300 pages.  He said the answer was that it was not known yet.  He said they did not know how many D&D Tire, Wheatfield’s Bakery, or Free State Brewery situations there were. 

He suggested asking many of those volunteers to perform a side by side comparison of what was old and new and take a look at the community to see where the impacts would be and also find out what would happen to all of those businesses at 6^th and Wakarusa and to the business on 23^rd Street.  Compare each dimensional standard to see if they had changed.  He said there was now a maximum lot coverage provision that did not exist before and what were the implications of that provision.  He recommended that the City Commission defer the new development code for a couple of months for further review because there were many volunteers.

Mark Andersen, Attorney, said he was there as a volunteer and not a representative for any one individual.  He said Finger referred to an ad hoc committee that met with City staff a week ago and he was part of that committee.  He said it was a very productive meeting and as a result, there were some very good recommendations coming forward in the way of changes.  He said so many changes that led to his question to the Commission.  He said the item that was on the agenda was to consider adopting on second and final reading Ordinance 7851.  He said Ordinance 7851 said that the Commission had adopted it after due and lawful notice and hearing.  He said if the Commission was adopting some 20 revisions tonight, he asked about the hearings on those revisions and what notice was given to the community.  He said he was not a litigation attorney, but if he thought of that question, there were a lot others that would.                       

Another question which he referred to as the “Dwyer Dilemma” referred to the letter from Phil Dwyer where Dwyer referred to the threshold of 50 percent damage to his property.  He said while a change that was discussed by staff might solve Dwyer’s personal issue, there would still be a lot of non-conforming uses and non-conforming commercial properties in this community.  He said even if Dwyer’s problem was solved, there were still a lot of other property owners who would face the same dilemma if their property was damaged in excess of 50 percent.  K.S.A. 12-758 set a minimum threshold of more than 50 percent damage and it was just that, a minimum threshold.  It was not mandatory or binding and if the community was so inclined to set a higher threshold for the purpose of closing the gap, and minimizing this issue, the community was free to do so.  He asked each of the City Commissioners why would they leave that at 50 percent given the opportunity to raise that percentage to 2/3 or some other number and minimize the negative impact on property owners similarly situated in this community.

Gwen Klingenberg, representing the League of Women Voters, spoke on three specific items.  One item was that the League approved the RMD changing to and RM12. 

The second item concerned special use.  She said there was a reason why the League had asked that the City Commission not change to “P” (Permitted Use) from “S” (Special Use) for single family homes within a multiple family district.  She said if single family homes were allowed in a multi-family district, single family homes could be placed anywhere without anyone having any say.  She said that was a problem with the Oakley tract where they found that they were an RM and they wanted single-family homes.  If leaving an area as an “S” then two things would happen that would protect the neighborhood and the City.  One suggestion was to condition those single-family homes as they did in Oakley and the City had the right to enforce those conditions whereas if leaving it as a “P” anything could happen and those homes could be turned into rental and the neighborhood would be left with a lack of predictability for that area.

She also had a concern about the automatic special use status.  It had been pointed out in Chapter 20-1306a, that this did establish that single-family detached dwellings in multi-family districts were not non-conforming and they were referring to the amendment, suspension, and revocation where the possibility of adding the detached dwellings were able to rebuild.  She said because there were not conditions placed on the original special use, none of those existing uses would have been conditioned therefore, had been granted automatic special use.

According to K.S.A. 12-758, which concerned exemptions it stated, “regulations adopted under authority of this act shall not apply to the existing use of any building or land, but shall apply to any alteration of building to provide for a change in use or a change in the use of any building or land after the effective date.”  She said if there was a single-family home in a special use and wished to build that type of home again because it burned down, it was still a single-family home and it had not changed its use or its land type.

She said the League asked that the Commission retain the requirement for the special use permit for single-family use in RM districts.  She said the point was that neighborhoods were an enormous investment for people living in them and for the City and they could not afford to build neighborhoods and ways that would create instability and decline.  Studies had indicated that neighborhood decline was not inevitable.  The League early study on housing supported creating affordable housing by creating stability in older areas of the City that were declining.  This study was done by the League Human Resources Committee and was supported by the Federal Program for creating a special department for Neighborhood Resources and Code Enforcement that apparently had been merged into the Neighborhood Resources Division in Lawrence. 

People who owned their homes had more incentive to maintain them well then those who use housing for income and studies had shown that stable neighborhoods needed a certain percentage of owner/occupancy, but the City needed to help.  It could create instability by bad planning.  The wrong zoning and the lack of code enforcement could create unstable neighborhoods and no predictability.

Steve Braswell, representing Pinckney Neighborhood Association, said they had two concerns.  He asked Finger if classification of duplexes in the new document changed.  He said specific duplex zoning was very important as a buffer between higher and lower density dwellings. 

He also had a question about single residential homes in the multi-family zoned areas.  He said he was in the middle of an RM zoned area and 14 out of the 16 houses were single-family residence homes.  He asked Finger to clarify the two options that were discussed.

Jason Boots, University of Kansas Student Senate, said when they discussed the U district, they discussed creating a 6 month buffer time for the University and the City to get together to discuss this issue.  He said that buffer time was to create goodwill between the University and the City.  He said from February 18^th through July 1^st only seemed to be 4 ½ months.  Whether that was intentional or inadvertent, it was important to continue to create that goodwill between the University and the City and that the City made sure that 6 month buffer time was a 6 month buffer time.  He suggested that the effective date for the University district provisions be set to August 15^th or September 1^st.

Patricia Sinclair, Lawrence, commented on the shift in the overall responsibilities and authority within the new proposed code.  She addressed the zoning changes in the Barker neighborhood.  She said there were some improper procedures in this rezoning.  Also there were questions as to whether this helped the people in terms of the existing size of their lots rather than making the zoning overall much more dense.  She said, in the ordinance, it was her understanding that individuals whose homes were to be rezoned should have received a written notice from the City.  She said that was true unless the proposed rezoning amendment was a general revision of the existing regulations.  She said this did not appear to be a general revision of the existing regulations in that very specific portions were selected and not all RS-2 properties were changed to RS5 and within the areas that were changed to RS-2 to RS5 there were properties that conformed to the RS-2 lot sizes and properties that did not.  She attempted to count those and roughly half of the properties appeared to meet the current RS-2 zoning.  She did not understand what case this might be considered a general revision of the existing regulations.  She said when it affected specific property then the property was to be designated by the legal description and so forth.  In addition, a public written notice of such proposed amendment shall be mailed at least 20 days before the hearing to all owners of record of real property within the area to be altered, to all owners of record of real property located within at least 200 feet of the area proposed to be altered.  She said that was not just City Code, but state statute.                                        

She said unless there was someway in which this could be construed as just a general revision it then went on to say that the properties had to be named and sited as legal description, but it also had a requirement about giving data, data in which you might be able to make a decision.  This was the data that she specifically asked about on January 18^th in which she tried to get the Planning Department to provide her with that data. She said the Planning Department had the tables of the affected properties with that data, but it no where mentioned the square footage.  For the City Commission to make an informed decision, the data that was required was missing.  She said just by looking at the map it was difficult for her to discern even the ones that didn’t have the dimensions or the lot sizes.

Mayor Rundle said this issue was a generational update of the entire zoning code.

Sinclair said if that was true RS-2 would be converted to something equal or all lots of a certain size would be changed to something.  She said she was trying to reference the City Code and state statutes where they specifically say that if it was specific property they would need to be listed out which was what Planning did, but what they failed to do was to give any data about them except for this 2000 square foot difference.  She said what she feared was going to happen in her neighborhood was that they would have a much more densely built environment than people who had moved there expected and that did not seem fair.  She said in no way did this respond to any kind of help in what their lot sizes really were.  They were based on the smallest case scenario which might occur in other neighborhoods, but was not a Barker neighborhood feature.

She said she mentioned the requirement for notice which seemed to be a requirement, the requirement for additional data, and the number of places. She said perhaps half might already meet the RS-2 zoning and they’re going to make them a denser zoning.  Again, this was something that the Barker neighborhood could have tried to appeal by a protest petition.  However, given the lack of notice most folks did not know about this issue.  There was no written notice sent to property owners that their properties were going to be rezoned and that was a minimum requirement.  Given the difficulties of not being a notary, and the requirements the Planning Office had put forward to her the year before about the process for a protest petition requiring individual notarization of each place that was certainly not an option.  Also even just identifying all the properties that might abut wasn’t something that a person could do because when you have another property that went through the Planning Commission that property was identified in such a way that the courthouse could then say this was what abuts that.

Mayor Rundle said the Planning Commissioners had looked at areas and tried to make general application that would have the least non-conformity.  Obviously, this was going to have to be filtered as people look at each individual property, but they could not look at every individual property tonight.  He said obviously, Sinclair was not the only one who had general concerns.  He suggested that Sinclair try to raise her broad concerns.

Sinclair asked Mayor Rundle to be more specific about what it was that he wanted to know from her.  She said she was trying to tell the Mayor that she could not give the data because the data was not presented by the Planning Commission on this item.                        

Mayor Rundle said he did not understand that question.  He said everyone who had property in the City could be asking the Commission to be very specific about the details of their particular rezoning.  He said they might want to keep a general discussion and the specifics for each property would need to mapped out.

Sinclair said this was not about her small property.  She said one might think that duplexes were the only issue in this zoning.  She said in her neighborhood there were so many more properties affected by those changes then you could have in the whole City affected by duplex zoning.  She said she was not just speaking about her property, but several hundred properties that were going to be rezoned without notice.  She said even the newspaper coverage had not addressed this issue.  She said when someone had their property rezoned, at a minimum, the Planning Commission should be willing to write down the dimensions of that lot if there was reason for rezoning as stated as to do them a favor to bring their lots into conformance with the zoning code that conformed to the lot size. 

Mayor Rundle said they understood that point, and suggested that they move on.

Sinclair said she could also cite from Article 3, the purpose of the zoning regulations which prevented the overcrowding of land and avoid undue concentration of population.  She asked if the Commission would like her to cite anything specific.  She said onto the more specific things, she was giving up on her Barker situation.  She said she objected to the new zoning code in the way that it gave more authority just to the Planning Office.  She said that was a dangerous road to take.  Although that was the road that would be taken, she said that was unfortunate.  It was difficult enough for citizens to understand the process and participate in it.  They have had a lot of examples of problems where things were done administratively.  For example, Planners could submit a revised plan as late as the day, night before, or day of a Planning Commission meeting after the public comment period had finished.  She said there was a code where they were told there were pieces of broken code and pieces of code that nobody could understand.  Rather than fixing that, they seemed to be getting a new code where there were many more of those items.  Instead of filling like cleaned up and refreshed and that they had addressed those particular problem areas, she would never be able to approach this code or figure it out.  If intelligent, educated people in this field had identified this many problems already, how could they be feeling that they were moving to something more appropriate.  She said there was a problem with a project that already came to the Commission that was already built where somehow, although three different people in the Planning Department handled that issue, it was not recognized as a non-conforming use drinking establishment.  The addition on the back was already built when it came to the City Commission, this was an example of something where public review and insight was important and to not have those administrative decisions made.

Mayor Rundle suggested moving on with other general points. 

Sinclair asked if she could give one more specific example of the kinds of things that might happen when there were administrative decisions.

Mayor Rundle said Sinclair raised a concern about administrative decision making and he suggested that there not be a lot of illustrations.  He asked Sinclair if she could stick to the general points.

Sinclair said they had occasions where the Planning Department had misstated what was stated and agreed to by the Planning Commission and she had been there when that had been done.  Even though she was at the meeting, read the minutes and so forth and this item was something like a reduced setback that item was not then recorded in any way in the minutes, was not recorded on the plan as required, but yet at the very end was said that that was something that the Planning Commission had allowed at the preliminary development.

She said after all of the meetings they had about The Woods and all the times she appeared to show pictures, talked about paths and so forth and was told that what she was saying was wrong that they were going to be able to have the paths over the stream and that this was going to be open park land.  She said a year and a half later, it was not accessible to the public and in fact, administratively, they were just going to review and change all of that in August of 2003.  She said then they decided to put it before the Planning Commission, but didn’t put it on any agenda in advance to let some people know that day of the meeting and basically said that everything they discussed about the paths that they had changed and where they said they were never going to have a pedestrian bridge on Johnson Avenue, they were going to do that.  She said she was trying to make a distinction between where they went through things where they had a public input process and even with that, that was an example of something that could have been done administratively and they were moving more and more to that and she found it a very dangerous thing.  She said they were entrusting a lot of power into very few hands and they were doing things away from the public view which was unfortunate.

John Webb, Lawrence, said he had two concerns. The first concern was the process.  He said this issue had been going on for over a year, but it seemed for having had that length of time to work out the details, they were gaining some significant change in details that were very important to him.  He said he as a business person he had not ever considered signing a contract and then tweaking the details later.  He said he had learned not to do business that way.  He said what needed to be done was for the public good.  Those zoning regulations were supposed to make this a better community.   He said when dealing with something on this scale, he did not think things needed to be rushed especially when coming up with significant changes close to the time that this ordinance was about to be adopted.  He suggested delaying the vote and work with those volunteers that were willing to help such as people in the insurance field which he had personal concerns concerning the 50 percent categorization.  He said the Commission needed to take their time, think this through, and make the right judgment for the community.

Finger addressed those concerns.  She said Banks had brought up the issue of the non-conforming lot and being in violation.  She said that was one of the sections that staff recommended revising so it was same that was in the existing code and it would not put a person in that situation.

Mayor Rundle asked if the language in the existing code was a problem at this time.

Finger said the existing code stated that if you were non-complying that you were not regulated as a non-conforming use unless you were both were non-comply and non-conforming.  She said Andersen had brought up the concern that in Ordinance 7851, as it was written, that some of the “whereas” clauses spoke to a public hearing and wanted to know when the public hearing was on those revisions.  She said she would let Corliss respond to that question.

She said concerning the D&D tire dilemma and the 50 percent provision and making that a greater percentage such as 75 percent, if that was an issue, then it was an issue with the existing regulations whether the Commission went forward with the development code or not.  That was unchanged from what the existing regulations would be as far as non-residential.

She said the concern from the League of Women Voters about the automatic special use allowed it as a permitted use.  Allowing a use and having it be a permitted use were two different things.  The automatic special use status said that it was allowed by right at the time it was established, but it was now regulated as a special use.  The use would be considered an approved special use and would be allowed to continue that was not the same as a permitted use.

She said Braswell had asked for clarification on what the recommendation was for duplex classification.  She said staff’s recommendation was that the Commission look at creating an RM12D which was a subset of RM12 which would be restricted to a building type of either two attached dwellings or a duplex and those were distinguished in the definition as whether they were on a single lot.  She said once staff received information back from the neighborhoods from the RM-1 and RMD areas that they had mapped out staff would bring those back to the Commission with a recommendation to be rezoned to RM12D or RS-3 or RS-5 depending on what worked best in those areas.

She said concerning detached dwellings in RM areas that was the option that staff provided in the memorandum to the Commission which would allow either “P” for permitted use back in the use table with an asterisk to reference the use standard which would indicate that a detached home would require a special use permit after the effective date or leave the special use and make a revision to 1306 which would allow as a minor change the reconstruction of a detached dwelling.  Either way, the distinction was that you were a special use and there could be issues that were raised by lenders and others at the meeting as to what qualifiers there were that would raise flags.  To allow it as a permitted use there was a standard for anything in addition that was built after the effective date of this ordinance.

She said Boots’ had a question about the 6 month buffer time for the University and the City to get together to discuss the ordinance.  Finger suggested that staff give that full 6 month buffer to the University.

She said Sinclair had raised a number of questions about rezoning portions of her neighborhood including her own property from RS-2 to RS-5 along with the notice issue.  She said she would defer those answers to Corliss as far as notice and map revisions.  She said her issues included notice data, the appeals procedure, and identification of individual property so that there could be a protest.  The ability was there through looking at the maps which were on the website, but it would take knowledge to know where to look.

Mayor Rundle asked if there were any protest or appeal provisions for when the new classification would take affect.

Finger said she would defer that question to Corliss.

Finger said Sinclair also spoke to the development code and the difficulty of administrative review and approvals.  She said there were many individual cases that were cited and they all had different stories behind them and she did not feel that this was the time or place to go into those stories.

She said Webb’s issue concerned process.  She said it had been a long process and was confusing and that was the City Commission’s call as to what to do at this point.  She said Webb’s last suggestion was to delay the vote and that was the Commission’s call.

Mayor Rundle asked Finger about the effect of the delay and what was the process, if the Commission did delay the vote. 

Corliss said the state statute in question essentially set out two different types of revisions for either the zoning code text or zoning map.  The statute talked about general revision or a specific revision and staff had interpreted this issue as a general revision which was a comprehensive overhaul of the entire zoning code and believed it was a general revision.  As such it was not a specific revision.  If it was a specific revision that did require notice to the property owner, it did require legal descriptions and published notice of those legal descriptions.  He said staff had published notice of the zoning code adoption itself and referenced the earlier document that had changed a number of times.  He said there was no protest opportunity on a general revision because there was not notice to property owners and it was that notification that triggered the protest area.  It was the way the statute was written as far as a protest opportunity.

He said concerning Andersen’s comments about the continuing changes of the document, that was a legitimate policy issue for the City Commission to reflect on and respond to.  There was not a lot of case law that dealt with the City Commission receiving a Planning Commission’s recommendation and then making changes to it and then making so many changes to it that it defeated the purpose of the notice to the public for the public hearing to be conducted before the Planning Commission.  He said in fairness to where this was today, a number of those changes were either clarifying or moving the document closer to what was the existing law as opposed to a changed law that was to the City’s benefit to proceeding.  He said Andersen’s point was that someone might make the argument that so many changes had been made from what was published before the Planning Commission that someone could say that was really not what was noticed to the public and that was not fair.  He said he did not have a lot of Kansas case law to point to in that area but was something to reflect upon.  He said staff had tried over the past few weeks to be as open as possible, but to keep the process moving.  The City Commission needed to reflect upon whether or not that good enough notice was provided to the public of the entire document to date and the changes that had been made.  He said from advising from a legal standpoint, he could not say that it was defective to go ahead and adopt the ordinance.  There had been a number of ordinance changes on second reading.  Again, he did not have Kansas case law to point toward to say that there were so many changes that the Commission had not done a second reading and needed to start over.  He said it was fair to go ahead and proceed and that had been done in other circumstances.

On the issue of the general versus specific, there was not a lot of litigation history on that, but there was practice in making general revisions to the zoning ordinance such as changing the definition of “family” in the zoning code which was a relatively recent enactment of the City Commission within the last 3 or 4 years.  He said staff did not provide specific notice because it was a general revision to that definition.

He said Banks made a good point in his comment about the City’s acquisition of property.  He said that section that Banks was referring to was 20-1504 in the non-conforming section when it talked about lot width in 20-1504(c)(1)ii.d. where it talked about the reduction not being permitted.  It did state that “the owner of a non-complying lot shall not take any voluntary action that would further reduce the lot width.  Any such action by the owner may be prosecuted as a violation of this code and shall deprive the owner and any subsequent owner of the protection afforded by this section.”  He said their preference was to not take property involuntarily, but to take it voluntarily through a negotiated acquisition process.  He said his suggestion to the wording was to change it so that it would say the owner of a non-complying lot shall not take any voluntary action that would further reduce the lot width without expressed permission of the City.  He also recommended a general provision to Article 15 that stated that City acquisition of any property interest, whether by voluntary or involuntary acquisition for a public use, shall not be interpreted as creating a non-conforming use, non-complying structure or non-complying lot on the provisions of the development code.  He said that was the City’s intent that when they acquire property they were not forcing someone into a legal status that would create a significant reduction in value.  

Corliss said the City Commission had a significant issue in proceeding forward as far as making sure that the document they had was the one they wanted and that there was adequate public notice.  He said Finger and staff had done a Herculean effort to get this document to this point and he wanted to honor that and he also wanted the Commission to recognize that there were probably going to be changes to this document in the future and it was fair from Bank’s and Andersen’s comments that additional analysis on what would help staff uncover those situations and the Commission would need to judge whether or not now was the time to adopt that ordinance. It was also good to think about a further effective date and that might have changes in what was in the pipeline, but a further effective date allowed the document to be out there and for those that did not like particular provisions, staff could work to make changes or at least respond to those issues in a more focused fashion.

Commissioner Dunfield said given the scope of the project and the 6 years that had gone into it that scope, it did not seem to him that the changes that were being discussed were such that it would violate that need for a public notice.  He said 95 percent of the language in that document had been available to the public since February of last year.  He said they have had from the League of Women Voters probably 4 different commentaries annotating the entire document during that time and it was not as if there had not been opportunity to review and comment on that document.  He said they had seen enormous efforts by volunteers and by the Planning Commissioners, Planning Staff, and by a paid consultant.  He said all of that effort had taken place in the public eye over a span of 6 years.  It seemed that in someway it insulted the effort those thousands of hours of time spent by Planning Commissioners, staff, and volunteers, for the City Commission to continue delaying implementation of that document.  He said he understood that there were still going to be issues that arise and that would need to be corrected.  He said they were still correcting issues from a 38 year old zoning ordinance.  The issues that had come up in the last few weeks had been good issues and it was a good thing for those issues to be corrected now rather than to wait.  He said they were getting to a point where they were going to keep having the same debates about the same provisions a number of times and that was not fair to the people who had put the effort into getting that document to this point.  He said he would like to see the Commission move forward.

Mayor Rundle said the concerning the notice, he was comfortable with the explanation.  He said the statute made a distinction between specific changes as opposed to a general change.  He said Corliss was right to respect the work that had gone into this document by those parties who had been working on it.  He said it was also important to broaden that to the greater public and ask the specific property owners to look at it.  He said all the generalists in the community who were interested in planning had been engaged very intensely and he said they were all anxious to see the City Commission move forward.  He said he did not want to delay the document and as a matter or course they were always going to be updating and improving the zoning code and he would like to get the new code in place so that process could be started.

Vice Mayor Highberger said it was difficult for every citizen to be able to follow this type of complicated document and be able to provide input in a meaningful fashion although the League of Women Voters had done an outstanding job of reading the ordinance and providing comment.  He said the planning community had known about this process for a long time and he was surprised that some of these issues were coming up at this stage of the game. 

He said he shared the concerns raised by Corliss that even though they were not changing a very high percentage of the wording of the document that some of the changes that were suggested at this point were fairly significant and haven’t had a chance for a lot of input.  For instance, he supported the proposal to change the allowed uses in downtown zoning to allow for auto related uses.  He said that was a fairly significant change and someone could have an objection and those people should have a chance to put that objection on the record. He said he was ready to move forward relatively quickly adopting the code.  He said the Commission should discuss those changes to have a final version that the Commission could approve realizing that there would be more revisions that would come up in a week or two. 

Corliss said there was a recommendation from the Planning Commission to adopt the November 17^th version of the development code.  The City Commission would then treat it as any other Planning Commission recommendation.  He said staff was recommending altering the Planning Commission’s recommendation given all the different changes which required 4 votes.  If you want to send this item back to the Planning Commission it would require 3 votes.  He said staff could place this item back on a future agenda on first reading, but 4 votes were still required to overrule the Planning Commission’s recommendation.

Vice Mayor Highberger asked if that idea would meet the concerns of adequate public notice.  He said a hearing had been conducted where a lot of discussion had been entertained, but they had not had the statutory public hearing which was before the Planning Commission.

Commissioner Schauner said the City Commission might be in the position where they might not want the type of delay that might entail.  He said going back to the Planning Commission for the fine tuning on those concerns made the most sense.  He said he respectfully disagreed with Commissioner Dunfield’s comment concerning the postponing being a criticism of the work that had been done.  He said the fact that there was so much of what had been proposed that was acceptable honored the process.  He said if he had any question about whether the Commission should delay this issue, those concerns were allayed when he saw Andersen and Banks both taking the same position about this item not being acted on at this time. 

He said the issue he was concerned about was that they develop a document in which there was as high of level of public trust and confidence as they could develop.  He said it won’t be perfect when they finally act on this document, but it could be better than they were seeing.  He said he would like to provide a maximum level of common sense and minimum level of confusion about the policy that the City Commission would ultimately adopt, but the Commission was a long way toward getting there.  He said they owed it to the people that would be affected by this document.  He said 38 years was a long time.  Another month or two would not be the end of the world and it gave the Commission a chance to make a document that would be more trusted and more understood.  He suggested sending this document back to the Planning Commission and let them bring the City Commission an amended version of that document.

Commissioner Hack asked if Commissioner Schauner was suggesting that the City Commission send back the entire document. 

Commissioner Schauner said he was not suggesting the whole document be rewritten.  He said there were some issues in that document that those volunteers wanted the opportunity to address with the Planning Commission.

Commissioner Hack said this was a document that had continued to be constantly amended and the purpose was to clean up and simplify that document.  She said she was supportive of the portion of the document that streamlined the process and did allow for administrative approval.  She said she had faith in City staff and staff knew the process.  She said there were enough significant changes for the City Commission to continue to look at those changes.  She said there were some real world applications to this document in terms of non-compliance that were disconcerting to a lot of people.  She said the document was not perfect and the City Commission would need to continue to modify it.

Commissioner Dunfield said he agreed with Commissioner Schauner in that if they were not going to take action what that meant was sending the document back to the Planning Commission and having the public hearing process over again which would take months.  He said he hoped they could get the process completed before the election cycle was over.  It seemed clear that if the City Commission was not going to act at this time, what that meant was sending that document back to the Planning Commission and requiring them to do their job again which was one of the things he was hoping to avoid by the City Commission acting on this item.  He said the City Commission would not be able to control the topics that would be under discussion at that time. 

He said a couple of weeks ago Banks suggested that the whole document was too long and complicated and that might be a topic for the Planning Commission.  In terms of the specifics that were under discussion, he thought the City Commission should have at least a brief discussion.

Mayor Rundle asked if there was any difference in approving the document and rolling the effective date out three or four months such as they had exercised with the University and in that time period they could hopefully narrow down the issues.

Finger said the City Commission had missed the Planning Commission’s February meeting.  The next meeting would be held March 16^th in which this issue would be in front of a new City Commission to adopt.

Mayor Rundle said the Planning Commission already had other issues on the table and if this document went back to the Planning Commission it might not be addressed for a couple of months.  He asked if this document would go back to their committee.

Finger said she could not say what the Planning Commission would do once they received that document.  If the City Commission sent it back, as with any zoning item, they could ask the Planning Commission to address specific questions in which they could look at those specific items or the entire document.  She did not know whether or not the Planning Commission could complete that hearing in March.

Mayor Rundle suggested proceeding with coming to some consensus on specific changes.

 Moved by Hack, seconded by Highberger, to extend the meeting to 10:30 p.m.  Motion carried unanimously.

Commissioner Hack asked what the pluses and minuses would be for approving this document now, instituting those changes, or were there enough changes that this document would need to go back.  She also asked if the City Commission could approve this document with an effective date.

Corliss said attorney’s look at case law and statutes.  A statute established a procedure, but it did not tell an attorney that if a City Commission in over riding the Planning Commission’s decision made so many changes numerically or somehow quantifying it that somehow that meant that there needed to be a new hearing.  He said this was really more of a policy issue, but it might be a legal issue.  As far as an effective date, that needed to be addressed to the Planning Director and Assistant Planning Director because they would essentially deal with which code staff should look at for which project and then communicate that to different applicants.  He said there was value in that it would focus attention on issues and if someone wanted to change something they could come to the City or Planning Commission to initiate those changes.

Commissioner Schauner suggested that the Commission focus on what was the right thing to do to get this code as right as they could the first time.  He said the Commission knew that they would need to come back and look at changes from time to time over the life of that code.  He said his issue was could they withstand some legal challenge to the way this was done.  The question was, let’s follow a process in which the public could have confidence.  He said he did not think whether case law or statutes said that they could or could not, ought to be what determined what the City Commission did.  If this document was not finished by July 1^st, Lawrence would not come to a standstill. 

Mayor Rundle said he wanted to do whatever allowed the City Commission adequate time to accomplish that process.

Corliss said one item that might need to be considered if the City Commission referred this document back to the Planning Commission was that the document that was being referred back was the most recent edition with all those reflective changes.  It would be appropriate to direct staff to meet with the people that had been assembled to go over those concerns and to try and further understand existing concerns of the document.  It might also be valuable for the City and Planning Commission to get together and talk about this document.  He said the City Commission could not instruct the Planning Commission with this document, but the City Commission could strongly hint that this was the document that they thought was heading in the right direction.

Commissioner Dunfield suggested a short-cut based on what he had heard tonight and with previous discussions of those issues.  He said it sounded as if the City Commission was in agreement on most of those changes except for 20-402.  He said Commissioner Highberger proposed a compromise on that issue that seemed to be a useful avenue. 

Commissioner Highberger said he initiated the discussion and he was satisfied with the proposal that came back from the Planning Staff because the proposal addressed the concerns of the neighborhood.

Commissioner Dunfield said the other item of concern was a new item which was the property acquisition items that were raised by Banks and the language suggested by Corliss to resolve that matter.

Commissioner Schauner asked if Commissioner Dunfield was proposing that those items would be specific issues that the City Commission would like the Planning Commission to address.

Commissioner Dunfield said yes.  He said what was on the list and his two comments.

Vice Mayor Highberger suggested the issue of the uses in the downtown area.

Commissioner Dunfield suggested that the City Commission discuss that use concern.

Mayor Rundle asked about the issue of non-conforming.

Corliss suggested that to clarify in the code that no City acquisition voluntary or involuntary would create a non-conforming use, non-complying lot, or non-complying structure. 

Mayor Rundle said he agreed with that concept, but it seemed that Corliss would need to have time to create the right legal language because just saying it was not conforming was in conflict with what it actually did.

Corliss said that issue needed additional discussion and in most of those cases staff had done it, but had not done anything about it as far as any type of enforcement because they were the ones that put those property owners in that situation.

Commissioner Dunfield said the D&D Tire issue was an issue that needed additional discussion.  He said he worked a block away from that business and he appreciated that service being at that location, but it seemed clear to see that was a square peg in a round hole downtown.  The parking arrangement was unique and they had a lot of difficulties with deliveries.  He said downtown had a lot of automobile related services at one time, but they didn’t anymore accept for D&D Tire. 

Commissioner Schauner said that was not because of the zoning code.  Commissioner Highberger said no, but the fact was that the downtown had evolved in way that was not particularly friendly to that kind of activity.  He hoped D&D Tire would stay there for a long time, but it seemed that a special use permit was appropriate given the environment that they were in.

Mayor Rundle said he was leaning more towards the mixed use nature.  He said they did not want to see everyone drive 5 miles to get certain services. He said he did not know if they needed to set some limits on the number of those types of uses.

Commissioner Hack suggested that the Commission needed more time to discuss that issue.  She said just because that business seemed out of sync with whatever else was downtown did not mean that it shouldn’t be a permitted use.  She said she would hate to see them suffer because of a change.

Mayor Rundle said he was leaning toward a permitted use.

Commissioner Dunfield said he wanted to know how the specific requirements of automobile related, parking requirements, and various other issues mesh with the downtown zoning.  He said if the Commission could figure out how that would work, so be it.  He said his sense of the matter was that it would be a difficult fit within that downtown zoning.

Mayor Rundle asked if there was general consensus from the Commission on the changes with the amendment of the compromise in 20-402 and 20-1504.

Commissioner Dunfield said yes.

Finger said the language was revised in 20-501.

Moved by Schauner, seconded by Hack, to return the new Development Code back to the Planning Commission to reconsider specific revisions to the Planning Commission’s recommendations.  Motion carried unanimously.                                                                    (20)

Commissioner Hack said Corliss suggested that the City Commission meet with the Planning Commission to discuss this issue along with the group that had met last Monday, to be a part of that conversation.

Corliss said he would ask the group that had met last time to meet again in the next few weeks so that the Planning Commission could have the benefit of those thoughts.  He encouraged the City Commission to find a time to meet with the Planning Commission.

Mayor Rundle said in addition to this meeting if there were other people who had input shall this be the forum for those issues.

Corliss said if they had a group of the Captains of Commerce, they would not be accused of not listening to other people.  He said staff needed to be careful about how to focus.  He said he did not want to exclude one group versus another.  He suggested talking about specific provisions that were problems.

Commissioner Schauner suggested that Planning staff present the City Commission with a plan of attack and bring something back to the Commission that looked like a specific plan with a beginning, middle and end.

Corliss said this issue would be on the March Planning Commission agenda.

Mayor Rundle said there were questions out there of explanation and application.  He suggested that there be a way to deal with that issue such as the City’s web page.

Finger suggested that staff produce a report on an update of the recommended changes.  She said because this was a sizable issue, what staff had done in the past was separate public hearings on the code.  She said she could ask the Planning Commission if they would be interested in scheduling an additional meeting between February or March to deal specifically with the code.

Commissioner Schauner said if that idea was implemented, he would like to see staff buy a good sized ad in the newspaper to announce that meeting in addition to the normal notice procedure.

Corliss said that was a wise suggestion.  He said Finger had spent a lot of time answering specific questions.  He said so much of that document was specific driven.  It was a macro issue, but it had to be done on a micro basis to understand exactly how it affected particular pieces of property.

Mayor Rundle said he did not want to hamper staff by giving staff too many specifics.  He suggested that staff come back to the City Commission with a calendar of when those various steps would occur and for those nuances that were addressed.

Commissioner Dunfield suggested staff address how to best conduct a public hearing and how to give notice.

Corliss said both the legally required notices and also the informal discussions that staff would try to facilitate with interested parties.

PUBLIC COMMENT:

Sinclair said formally this was the place for her to request that the City look into annexing Bauerbrook property. 

She said there was a gentleman that had a place near Overland Drive who did not want to be annexed, but he wound up getting annexed against his will.

Corliss said that was the Do Little Farm which was annexed in the mid 1990’s.  He said when the Planning Commission reviewed the unincorporated development that was known as Bauerbrook, off of Folks Road and extended into the unincorporated County.  One of the conditions that was placed on that plat was a requirement that they annex into the City and connect to City sanitary sewer by the year 2006.  He said staff had been in discussion with the major property owner in that area as they had sewers extended at that location offering opportunities to connect the sewers.

Corliss said the City would need to initiate that annexation, but they had consented to that annexation and certain processes needed to be followed to accomplish that.  He said it was platted property and was contiguous to City boundaries so there were a number of provisions under the existing annexation laws that would allow the City to annex that property.  He said when the time came, staff would place that issue on the City Commission agenda and staff would try to remember to notify Sinclair.

Sinclair asked if that property was platted as floodplain.

Corliss said there was a long cul-de-sac County road and there were platted residential lots off of that street.  He said there were some residences that had been constructed at that location and the remainder of those homes were vacant and for sale.

Vice Mayor Highberger said if the sewer line had been extended, he asked what the remaining delay was.

Corliss said the sewer line has not been extended.  He said when the sewer line for Westwood Hills property to the west was placed, staff discussed with the property owner if he wanted to comply now, but the property owner indicated that he did not want to proceed.

Mayor Rundle asked if the City’s agreement was to not initiate that until 2006.

Corliss said it was a burden on that property owner to connect to sewer and annex by 2006.

Sinclair brought up another issue of public access to what was left of the The Woods.   She said she tried to follow up after all the public processes, but it was zipped through a Planning Commission meeting and that issue was not reflected in the minutes.  She said she had been trying to find out a year and a half after construction about the access.  She said this area was touted as a place that had this great connectivity and she noticed that a lot of their ads say private park and nature trails.  She asked if there was anyway that staff could investigate the status and what was proposed in the way of public access and paths.  She said the one thing she was promised that they wouldn’t have was the pedestrian bridge which would be in a difficult area at the dead end of Johnson Avenue.

Mayor Rundle asked about the timeframe that staff could come back to the City Commission with a report.

Corliss said that issue could be put on the list.  He said staff needed to get with the Planner that worked on that issue to find out where the City was with the actual requirements of the development plan and staff will check that plan for compliance with those requirements.

Sinclair suggested that staff find out if access was going to be within a park system.

Corliss said staff would respond to that question specifically, but staff would find out whether or not it met those requirements.

Sinclair asked if she could have a copy of that report.

Mayor Rundle said that would be under the City Manager’s Report with a timetable or projection so Sinclair could watch that to forecast of how soon it might be coming back.

Moved by Schauner, seconded by Dunfield, to recess at 10:30 p.m., until 2:00 p.m. on February 2, 2005.  Motion carried unanimously. 

The Commission met in regular session at 2:00 pm on February 2, 2005.  The Mayor called the meeting to order.

Moved by Dunfield, seconded by Schauner, to go into executive session for two hours to discuss non-elected personnel matters. Motion carried unanimously.  

The Commission met back in regular session at 4:00 p.m.  Moved by Hack, seconded by Schauner, to approve amending an employment contract with City Manager Mike Wildgen to provide a 3% increase in base salary and a $2,000 increase to the City’s contribution to the ICMA-RC 457 deferred compensation plan; and authorized the Mayor to sign an amended contract.  Motion carried unanimously.

Moved by Highberger, seconded by Schauner, to adjourn at 4:00 pm.

APPROVED:

_____________________________

Mike Rundle, Mayor

ATTEST:

___________________________________                                                                       

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING MINUTES - FEBRUARY 1, 2005

1. MACPP Bid – Pickup Truck for Neighborhood Resources/Code Enforcement, Shawnee Mission Ford fro $17,590.

2. MACPP Bid – Pickup Truck for Utilities/Clinton Water Plant, Shawnee Mission Ford for $15,590.

3. Ordinance No. 7857 – 1^st Read, “stop signs” on RI at 12^th.

4. Ordinance No. 7854 – 1^st Read, “yield signs” Wheat State at Eldridge.

5. Ordinance No. 7858 – 1^st Read, “all way stop” 9^th and NY.

6. Ordinance No. 7856 – 1^st Read, “all way stop” 10^th & NY.

7. Ordinance No. 7855 – 1^st Read, remove “stop signs” on 9^th at NJ.

8. Site Plan – (SP-10-70-04) Family Health Medical Office Bldg, 9,383 sq. ft., office bldg, S side of 18^th W of Wakarusa.

9. Site Plan – (SP-11-77-04) 2^nd drive thru lane & addition, McDonald’s, 1309 W 6^th.

10. Site Plan – (SP-12-89-04) 80’x80.5’ industrial bldg, 1100 E 11^th.

11. TSC – “Stop Signs” RI at 12^th.

12. TSC – Deny “20 mph speed limit” Sierra Dr. between 6^th & Trail

13. TSC – “Yield Signs” Wheat State at Eldridge.

14. City Manager’s Report.

15. Transit – Maintenance Facility acquisition/construction.

16. TSC – Denial of perpendicular parking Water’s Edge, 847 Indiana.

17. Annex – (A-10-05-04) 13.3626 acres, SE of Lake Estates Sub, E 920 Rd & Lake Alvamar.

18. Rezone – (Z-10-50-04) 3.6348 acres, A-1 to S-2, SE of Lake Estates Sub, E 920 Rd & Lake Alvamar.

19. Rezone – (Z-10-51-04) 9.7277 acres from A-1 to RM-D, SE of Lake Estates Sub, E 920 Rd & Lake Alvamar.

20. Ordinance No. 7851 – 2^nd Read, new Development Code & new zoning map.