PLANNING COMMISSION REPORT

Regular Agenda -- Public Hearing Item

 

PC Staff Report

09/26/05

ITEM NO. 13: 

TEXT AMENDMENT TO CHAPTER 20, CITY ZONING CODE PERTAINING TO GOVERNMENTAL TAKINGS

 

TA-07-03-05:  Consider Text Amendments to the City Zoning Code, Chapter 20, Sections 20-1314 and 20-2002.13 of the Code of the City of Lawrence, said sections pertaining to reduction of area or space and nonconformance which are solely the result of a governmental taking for right of way, easement, or other governmental use(s). Initiated by the City Commission on September 6th, 2005.

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Reason for Request:

 Identification by KDOT in a letter regarding on-going legal cases that a review of the damages created by governmental takings for additional easement/ right-of way would be prudent.

 

 

STAFF RECOMMENDATION:  Staff recommends approval of the revisions to sections 20-1314 and 20-2002.13 and forwarding of this text amendment to the City Commission with a recommendation for approval.

 

 

KEY POINTS

  • Identifying that a reduction to a lot or existing site situation that is a result of a governmental takings does not violate the zoning regulations.
  • Identifying that a building or structure that no longer complies with density and dimensional or parking requirements, as a result of a governmental taking, will not be regulated as a nonconforming use.
  • Identifying that noncompliance of a site that is created as a result of a governmental taking shall not be considered by the zoning code to be a noncompliance.  

 

 

PUBLIC COMMENT RECEIVED PRIOR TO PRINTING

     None.

 

 

STAFF REVIEW

In response to recent court cases where claims of extraordinary damages as a result of a permanent easement acquired by the State for right-of-way purposes, the city staff has reviewed the existing regulations to cure or resolve the issue of  the city’s interests in regard to the acquired property.  It is in the best interests of the City to be in a position in the future, should a similar circumstance arise, to be responsive to a situation that would result in reductions in building and parking setbacks as a result of a governmental taking, thus being able to make the property whole again and reduce negative impacts resulting from the taking. At the time of governmental acquisition or taking, the governmental entity acquiring the necessary property interests can also seek to cure any public or land use harm associated with the acquisition.  For example, if the taking reduces a setback area used for green space, the government can make additional green space acquisition part of the acquisition.

 

There are no proposed deletions from the existing text in 20-1314 or 20-2002.13, therefore the existing regulations are not shown separately from the proposed regulations. The proposed regulations are identified by italics and underlining.

 

Proposed Regulations:

 

20-1314.          REDUCTION OF AREA OR SPACE REQUIRED.

No lot, yard, court, parking area, or other space shall be reduced in area or dimension so as to make said area or dimension less than the minimum required by this Chapter, and, if already less than the minimum required by this article, said area or dimension shall not be further reduced.  However, this section shall not apply when a lot, yard, court, parking area, or other space is reduced in area or dimension solely as a result of a governmental taking or acquisition for right of way, easement or other governmental use.

 

20-2002.13   (1) Native Grasses.  Species of perennial grass other than those designated as noxious weeds by the State of Kansas Department of Agriculture and Entomology.

(2)        Nonconformance.  A lawful condition of a structure or land which does not conform to the regulations of the district, in which it is situated. This shall include, but is not limited to, failure to conform to use, height, area, coverage, or off­-street parking requirements.  Nonconformance shall not include situations where previously conforming buildings or structures no longer conform with the regulations of this Chapter solely as a result of a governmental taking or acquisition for right of way, easement or other governmental use.

(3)        Non­-conforming Use.  A structure or land lawfully occupied by a use that does not conform to regulations of the district in which it is located. Types of non­-conforming uses are described below.

(a)        Non­-conforming Uses of Land.

(1)  Any non­-conforming use of land where no building or structure is located on the land;

(2)        Any non­-conforming use of land where the use of a building or structure is accessory to such non­-conforming use; or,

(3)        Any non­-conforming use of land where a building or structure occupies a portion of the land, and the non­-conforming use of land is not accessory to a use of the building or structure.

(b)        Non­-conforming Buildings, Structures and Uses Thereof.  Non­-conforming buildings, structures, and uses thereof shall be deemed to include any building or structure, all or substantially all of which building or structure is designed and constructed for a use not permitted in the use district in which it is located, and the uses thereof, including any non­-conforming use of land accessory thereto.

(c)        Non­-conforming Uses of Buildings or Structures.  Non­-conforming uses of buildings or structures shall be deemed to include any non­-conforming use of part or all of a building or structure, designed and constructed primarily for a use permitted in the (use) district in which it is located, and any non­-conforming use of land accessory thereto.

 

(d)                    Non­-complying Buildings or Structures.  Non­-complying buildings or  structures shall be deemed to include any building or structure, designed and constructed primarily for a use permitted in the (use) district in which it is located and existing at the effective date of this ordinance, which does not comply with the height, area, setback, etc., regulations of the district.  Provided, however, that where a previously complying property no longer complies with the regulations of this Chapter solely as a result of a governmental taking or acquisition for right of way, easement or other governmental use, the failure to comply created by the taking or acquisition shall not constitute a non-complying building or structure.  Only a building or structure that is both non­-complying and devoted to a non­-conforming use, shall be regulated as a non­-conforming use.

(4)        Nursery School.  (See "Child Care Home, Child Care Center or School") 

(5)        Nursing Home.  Any premises where more than three persons, not members of the same family, are lodged and furnished with regular meals and nursing care.