Swearing in of speakers

Swearing in of speakers

PC meeting minutes 08/22/05 and 08/24/05

ITEM NO 7: REVISED PRELIMINARY DEVELOPMENT PLAN FOR MT. BLUE ADDITION NO. 3; SOUTH OF K-10 HWY & EAST OF FRANKLIN ROAD (SLD)

PDP-07-06-05: Revised Preliminary Development Plan for Mt. Blue Addition No. 3. This proposed planned industrial development contains approximately 4.25 acres. The property is generally described as being located south of K-10 Highway and east of Franklin Road. Submitted by Landplan Engineering, P.A., for Mt. Blue, LC, BlueJacket Ford LLC, George F. Paley and Steve T. Abbott, property owners of record.

STAFF PRESENTATION

Ms. Day explained this was a request for a revised Preliminary Development Plan, but the only section being modified belonged to one property owner, Dean Penny. Complications were raised when Staff recommended placing conditions on the overall plan for the applicant as some impacted other property owners. These recommendations stemmed from City Staff’s intent to forecast to existing and future property owners changes that would come with the Franklin Road & E. 23^rd Street interchange improvements. Specifically, the existing access points at Thomas Court would need to be modified and, as a result, a southern connection was recommended to be extended between Thomas Court and 25^th Street.

The full impact of interchange improvements at Franklin Road is not yet known. The applicant and associated property owners were not being asked to dedicate additional right-of-way with this plan (which also serves as a revised Preliminary Plat). However, staff was recommending as a condition, revising the development plan to show where right-of-way would be dedicated in the future and to require dedication of this north-south section as a public access easement. The reasoning for this recommendation was to give the applicant maximum flexibility for locating buildings and parking areas within the undeveloped portion of the PID.

Ms. Day described the larger planned industrial development and identified the two lots on the north side of Thomas Court that were proposed for a relocating storage facility, and were the focus of this request. More development plan revisions were likely to come forward in the future but were not ready to be included with this request.

Staff noted that several planning documents addressed development on or near this site, including T2025, the K-10 Corridor Study, and a number of surrounding development proposals and draft plans.

It was established that Franklin Road was designated as a collector when the subject property was zoned as a PID. The road had been re-designated as an arterial with the update of T2020 to T2025.

Staff said they had discussed the establishment of an east-west connection on the far eastern boundary of the overall property, but the adjacent owners had not been interested in that option, feeling it was not in their best interest because of the heavy truck traffic related to their use. Staff concurred with their observation that the potential mix of vehicle types was not desirable.

It was noted that applicant’s and representative from Barber Emerson had forwarded to staff a letter raising concerns about the recommended conditions. Director of Legal Services, David Corliss, was present to address those comments at the Commission’s request.

APPLICANT PRRESENTATION

C.L. Maurer, Landplan Engineering, spoke on behalf of the applicant, saying the applicant had no objection to recommended conditions 2, 3a & 4c. However, Mr. Penny had no control over the other conditions and felt it was inappropriate to apply conditions to the entire plan when the revisions involved only his two lots.

Mr. Maurer referenced a cul-de-sac (Thomas Court) that was constructed at the applicant’s expense very recently. According to Staff’s recommendation, a portion of this cul-de-sac would be removed and the applicants would be asked to take part in paying for an entirely new road when Franklin Road improvements were made. Mr. Maurer said KDOT had stated they had no funding for the interchange improvements and the access and roadway design issues being brought up today had nothing to do with Mr. Penny’s 2-lot proposal.

Terry Leibold, attorney for Mt. Blue, LC, said his clients agreed with Mr. Maurer’s assessment of the situation. They opposed the conditions that would require them to dedicate a 30’ easement and remove the Thomas Court cul-de-sac when their property was not part of the revised plan request.

Mr. Liebold said his client’s had agreed to let Mr. Penny apply for the revised development plan in order to allow an existing business to expand and relocate to his (Penny’s) property. If conditions as proposed were applied to the revised Development Plan, Mr. Liebold suggested it would “kill the deal” because other property owners would not be willing to meet those conditions. Therefore, Mr. Penny’s lots would remain empty and devalued

It was suggested that the City’s attempt to close the existing access point and force the Mt. Blue owners to take part in a benefit district for a new street without compensation constituted a taking.

Dave Corliss, Director of Legal Services, said the advance planning proposed by staff in this matter would prevent a situation similar to that faced in Item 5 [FDP-07-09-05]. In both cases a phased development faced impacts as a result of access changes, but in this case the development was in its beginning stages even though a road and a Preliminary Development Plan were in place.

Mr. Corliss said State law gave the City authority to require exactions for Franklin Road under its new designation as an arterial street. As part of that design, the City could also condition revised access, i.e. closing the existing Thomas Court in favor of a more appropriately placed access point. Mr. Corliss said Mr. Liebold’s comments about requiring changes from property owners that were not before the Commission tonight were appropriate from an advocacy standpoint. It was correct that the Commission did not usually make requirements of property owners who were not part of the request. He said it was also true that the subject property (Penny’s two lots) did not abut the land where easement dedications were recommended. However, the Commission did have the legal ability to require the changes proposed to the overall development plan and, in legal staff’s opinion, it would not be unreasonable to do so.

Mr. Corliss repeated that the proposed conditions did not require dedication of right-of-way at this time, only an easement indicating the likelihood of revised access in the future. It was suggested that it would be adequate to require a note on the plan instead.

COMMISSION QUESTIONS

Burress asked for clarification on legal staff’s opinion that the proposed conditions did not constitute a taking, noting again that the conditions would put substantial demands on property owners not involved in this request. Mr. Corliss said State law gave the Commission the ability to require certain off-site improvements in order to develop.

Mr. Corliss responded to questioning that the Commission could approve the revised plan now without the 30’ easement but with the stated understanding that access would be changing at a later date. It was not known if this option was amenable to the applicant or the other property owners.

Lawson asked if it would not be a taking when/if the City removed access at Thomas Court if the adjacent property owners refused to dedicate the right-of-way needed for a new access road (creating a land-locked parcel). It was clarified that these dedications and improvements would be exacted when the adjacent properties came in for redevelopment.

Jennings said it appeared the most valuable lots in this development would be made the least valuable after road improvements and asked who paid for the devaluation of property. Mr. Corliss replied that State law said public improvements were not compensable as long as the property was left with reasonable access. Compensation would be given for right-of-way dedications as usual.

Krebs asked why the existing access at Thomas Court could not be retained. Staff explained this access would be too close to the intersection, even without the planned interchange improvements. It was clarified that Staff did not support the identification of future right-of-way at this point because it was not yet known exactly where this right-of-way would be needed (for Franklin Road and E. 23^rd Street). Drawings of the interchange available today were conceptual and it was possible that right-of-way would take part of the two subject lots. It was discussed that there was no process in place to allow the City and KDOT to identify and acquire right-of-way in advance of development proposals.

It was verified that conditioning an agreement not to protest the formation of a benefit district with this project did not prevent other property owners from doing so.

PUBLIC HEARING

No member of the public spoke on this item.

CLOSING COMMENTS

There were no closing comments from the applicant or Staff.

COMMISSION DISCUSSION

Krebs suggested it would be reasonable to revise conditions to apply only to Mr. Penny and not bring the other landowners into the issue at this time. There was discussion about what direction to give Staff for drafting revised conditions.

ACTION TAKEN

Motioned by Krebs, seconded by Ermeling to table the item and direct staff to draft language as discussed:

Require applicant (Penney) to execute an agreement not to protest the formation of a benefit district for future road improvements to accommodate revised access;
Stipulate that other property owners will be required to dedicate an access easement when they develop or when Thomas Court is closed, whichever happens first;
Remove the requirement for a 30’ easement at this time

DISCUSSION ON THE MOTION

Haase asked if this language would provide adequate leverage to acquire needed easements in the future. He said it would be more appropriate to obtain easements now so the State (taxpayers) would not have to pay for it in the future. It was countered that this applicant had no ability to meet this requirement because the needed easements were not on his property. Haase said this applicant could meet this requirement through negotiations with his partners.

Lawson said he did not support requiring an applicant to incur costs based on a vague future and he favored the motion as proposed as the best compromise. Haase spoke about considering the interests of the public over those of the developer, relating it to the inherent increase in public costs when granting zoning.

There was extensive discussion about requirement options.

ACTION TAKEN

Motion on the floor was to table the item and direct Staff to develop and return language at the Wednesday meeting as outlined above.

Motioned by Lawson, seconded by Jennings to substitute the motion on the floor with a motion to approve the revised Preliminary Development Plan for Mt. Blue Addition No. 3 with revised conditions as follows (shown by ~~strikeout~~ and underlining and following specific wording suggestions per Staff):

1. Execution of an agreement not to protest the formation of a benefit district for future Franklin Road improvements (~~to be executed by all property owners within the PID).~~

2. Provision of a revised Preliminary Development Plan to label the top of wall elevations around the detention basin.

3. Provision of a note on the face of the Preliminary Development Plan that states:

a. “Per City Code Section 9-903(B), a stormwater pollution prevention plan (SWP3) must be provided for this project. This project will not be released for building permits until an approved SWP3 has been obtained. Construction activity, including soil disturbance or removal of vegetation shall not commence until an approved SWP3 has been obtained.”

b. ~~“The north south access shall be constructed with the development of Lots 5-8.”~~

c. “The intersection of Thomas Court and Franklin Road will be rebuilt when intersection improvements are constructed at Franklin Road and K-10 Highway.

4. Provision of a revised Preliminary Development Plan to provide:

a. ~~A minimum 30’ wide public access easement between the east end of~~ ~~Thomas Court~~ ~~and~~ ~~E. 25^th Street~~ ~~including the deed book and page reference on the face of the document.~~

a. Future dedication of a 30’ wide public access easement will be required between Thomas Ct & E 25^th Street to be developed at which time properties adjacent to easement are brought in for development of Franklin Road is improved;

b. The location of a future cul-de-sac bulb shall to be ~~constructed at the western end of~~ ~~Thomas Court~~ ~~when future improvements are made to~~ ~~Franklin Road~~ as shown by notation on a revised development plan.

c. Provision of a corrected required parking citation to reference parking group 17 requirements.

5. Agreement on the part of the applicant to participate in a future benefit district for improvements to the connection of 25^th Street and Thomas Court shall be required for development.

DISCUSSION ON THE MOTION

Krebs stated that the substitute motion accomplished her intent and she indicated willingness to withdraw the original motion, but the second was not willing to withdraw and the original motion stood behind the proposed substitute motion.

Student Commissioner Wright left at 9:40 p.m.

Burress said he would like to require the execution of an agreement not to protest the formation of a benefit district from the other property owners without requiring the 30’ easements at this time.

The motion was called with no objection.

ACTION TAKEN

Motion on the floor was to substitute the original motion with the following:

Approve the revised Preliminary Development Plan for Mt. Blue Addition No.3 with revised conditions:

1. Execution of an agreement not to protest the formation of a benefit district for future Franklin Road improvements;

2. Provision of a revised Preliminary Development Plan to label the top of wall elevations around the detention basin;

3. Provision of a note on the face of the Preliminary Development Plan that states:

b. “The intersection of Thomas Court and Franklin Road will be rebuilt when intersection improvements are constructed at Franklin Road and K-10 Highway.

4. Provision of a revised Preliminary Development Plan to provide:

b. The location of a future cul-de-sac bulb shall be constructed as shown by notation on a revised development plan; and

d. Provision of a corrected required parking citation to reference parking group 17 requirements.

5. Agreement on the part of the applicant to participate in a future benefit district for improvements to the connection of 25^th Street and Thomas Court shall be required for development.

Motion failed to carry, 5-5, with Haase, Harris, Krebs, Lawson and Riordan voting in favor. Burress, Eichhorn Erickson, Ermeling and Jennings voted in opposition.

Original motion on the floor was to table the item and direct Staff to return on Wednesday with revised conditions based on discussion.

Motion carried 6-4, with Erickson, Haase, Harris, Krebs, Lawson and Riordan voting in favor. Burress, Eichhorn, Ermeling, and Jennings voted in opposition.

COMMISSION DISCUSSION

It was established that Staff was being directed to return with language very similar to the conditions that had just been defeated in the proposed substitute motion. Those voting against the substitute motion and in favor of the original motion were asked to contact Staff with suggestions for revised language.

Item was tabled to the Wednesday meeting.

08/24/05 – item untabled

STAFF PRESENTATION

Staff said the memo in tonight’s communications outlined new language proposed and agreed upon by City staff and all legal representatives. The applicant had stated no objection to the revised conditions.

COMMISSION DISCUSSION

Burress said he would like the conditions to include the execution (by this applicant only) of an agreement not to protest the formation of a benefit district in the event a new road was constructed south of 25^th Street. Staff stated no objection to this change.

ACTION TAKEN

Motioned by Burress, seconded by Ermeling to approve the revised Preliminary Development Plan for Mt. Blue Addition No. 3 with revised conditions as follows:

1. Execution of an agreement not to protest the formation of a benefit district for future public improvements to Franklin Road.

2. Revisions to the PDP to include labels for top of the wall elevations for the wall around the detention basin.

3. Revisions to the PDP to include two additional notes on the plan, to read:

a. “Per City Code Section 9-903(b), a stormwater pollution prevention plan (SWP3) must be provided for this project. This project will not be released for building permits until an approved SWP3 has been obtained. Construction activity, including soil disturbance or removal of vegetation, shall not commence until an approved SWP3 has been obtained.”

b. “The intersection of Thomas Court and Franklin Road will be altered or eliminated when necessary for the improvements at the intersection of E23rd Street/K-10 Hwy and Franklin Road.”

c. “For planning purposes, a future cul-de-sac is conceptually shown on the western end of Thomas Court, east of the intersection of Thomas Court and Franklin Road. Exact location and determination of the responsible parties to construct and pay for development of this road improvement shall be determined at a later date as part of any consideration to close/remove the existing intersection of Thomas Court with Franklin Road.”

4. Revisions to the PDP to include the following revisions and an additional note on the plan:

a. Show a 30’ wide future public access easement, using dashed lines that extend from the existing Thomas Court cul-de-sac south, to a connection with E 25^th Street. Note on the plan: “This future road easement is shown for planning purposes only. Dedication of the easement will be required when a final development plan for any of the lots adjacent to this easement is submitted for approval.”

b. Correct the required parking annotation on the PDP to correctly list the referenced parking group as ‘17’.

5. Execution of an agreement not to protest formation of a benefit district for improvements to the connection of Thomas Court to 25^th Street by Dean Penny for the two lots he controls, to be platted as Mt. Blue Addition No. 3.

Motion failed to carry 5-5, with Burress, Eichhorn, Haase, Harris and Jennings voting in favor. Erickson, Ermeling, Krebs, Lawson and Riordan voting in opposition.

Motioned by Eichhorn, seconded by Jennings to approve the revised Preliminary Development Plan for Mt. Blue Addition No. 3 with conditions as presented by Staff:

1. Execution of an agreement not to protest the formation of a benefit district for future public improvements to Franklin Road.

2. Revisions to the PDP to include labels for top of the wall elevations for the wall around the detention basin.

3. Revisions to the PDP to include two additional notes on the plan, to read:

b. “The intersection of Thomas Court and Franklin Road will be altered or eliminated when necessary for the improvements at the intersection of E23rd Street/K-10 Hwy and Franklin Road.”

4. Revisions to the PDP to include the following revisions and an additional note on the plan:

Show a 30’ wide future public access easement, using dashed lines that extend from the existing Thomas Court cul-de-sac south, to a connection with E 25^th Street. Note on the plan: “This future road easement is shown for planning purposes only. Dedication of the easement will be required when a final development plan for any of the lots adjacent to this easement is submitted for approval.”
Correct the required parking annotation on the PDP to correctly list the referenced parking group as ‘17’.

Motion fails, 4-6, with Eichhorn, Jennings, Lawson and Riordan voting in favor. Burress, Erickson, Ermeling, Haase, Harris and Krebs voted in opposition.

COMMISSION DISCUSSION

Lawson expressed his frustration that the Commission could not reach a consensus, even when all parties involved agreed on the conditions brought forward tonight. Haase said this was because some Commissioners, himself included, felt it was essential for the benefit of the public to retain the condition requiring a 30’ public access easement between Thomas Court and 25^th Street. Staff pointed out that this was accomplished by proposed condition 4a. It was established that, in Staff’s opinion (legal and planning) the proposed condition expressed the maximum extent to which the City could control this element.

There was discussion about reconsidering the last motion, but no one voting in opposition to that motion expressed willingness to move for reconsideration.

Burress said he understood from Mr. Corliss’ statements on Monday that there would be equity problems in requiring exactions as supported by some members of the Commission, but that it would be possible.

It was noted that Mr. Penny’s partners had provided a letter stating they would not grant easements on their own properties to meet conditions placed on a plat involving only Mr. Penny’s land. It was understood that these owners would be expected to make dedications as they redeveloped their own properties.

Staff responded to various questions to clarify intent of the proposed conditions.

ACTION TAKEN

Motioned by Burress, seconded by Krebs to reconsider the first motion made and denied this evening, approval of the Preliminary Development Plan with conditions per Staff and added conditions as stated previously.

DISCUSSION ON THE MOTION

Lawson asked to hear from the applicant regarding the added condition, saying it was likely the conditions as strictly proposed by Staff were created through cooperation by all parties. Burress said the Commission must be cautious about negotiating with applicants. Lawson said he did not intend to enter into negotiations but the applicant’s input might influence his vote.

C.L. Maurer, Landplan Engineering, asked for clarification on behalf of the applicants, pointing out they had already agreed to provide an access easement and to participate in a benefit district when it was formed. Staff explained the additional condition was written to require execution of an agreement not to protest the formation of a benefit district now, rather than in the future. However, the district could be formed only with 51% of property ownership participation and the applicants represented property owners who held more than 51%.

ACTION TAKEN

Motion on the floor was to reconsider the first motion of the evening.

Motion carried unanimously, 10-0.

DISCUSSION ON THE MOTION

Haase said he was trying to vote to maintain the public’s legal interest in having a local street paid for through a benefit district, not by the public at large. He said the circumstances behind the construction of the existing cul-de-sac (Thomas Court) were irrelevant. Staff responded to questioning that the motion on the floor accomplished Haase’s stated intent to the best of the City’s legal ability.

ACTION TAKEN

Motion on the floor was to approve the revised Preliminary Development Plan for Mt. Blue Addition No. 3 and forward it to the City Commission with a recommendation for approval, subject to the following conditions:

1. Execution of an agreement not to protest the formation of a benefit district for future public improvements to Franklin Road.

2. Revisions to the PDP to include labels for top of the wall elevations for the wall around the detention basin.

3. Revisions to the PDP to include two additional notes on the plan, to read:

b. “The intersection of Thomas Court and Franklin Road will be altered or eliminated when necessary for the improvements at the intersection of E23rd Street/K-10 Hwy and Franklin Road.”

4. Revisions to the PDP to include the following revisions and an additional note on the plan:

b. Correct the required parking annotation on the PDP to correctly list the referenced parking group as ‘17’.

Motion carried 8-2, with Burress, Erickson, Ermeling, Haase, Harris, Krebs, Lawson and Riordan voting in favor. Eichhorn and Jennings voted in opposition.

The Commission moved at this point to Item 8.