THE LAW OFFICES OF

The Law Offices of

DANIEL L. WATKINS

4311 W. 6th Street, Suite C

Lawrence, Kansas 66049

Telephone: danwatkins@sunflower.com Facsimile:

(785) 843-0181 (785) 749-5652

November 22, 2005

Lawrence City Commission

c/o Dennis “Boog” Highberger

City of Lawrence

6^th and Massachusetts

Lawrence, KS 66044

RE: Text Amendments on 50’ Setback on 6^th Street

Dear Mayor Highberger and Commissioners:

I represent Free State Holdings, Inc. developer of the Bauer Farm project on the north side of 6^th Street between Folks Road and Wakarusa Drive. On November 29, you will be considering text amendments recommended by the Planning Commission to address potential damage issues in pending condemnation proceedings. I am writing in support of the proposed changes to Zoning Code Sections 20-1314 and 20-2002.13 and to request that you repeal, rather than amend, Subdivision Regulations Article 21, Chapter 12 (50’ setback on 6^th Street).

The following is offered in support of repeal:

The subdivision regulation establishing the super setback on 6^th Street in 1990 created a 200’ corridor of combined right-of-way and setback (100’ ROW/100’ total setback) to preserve this area for 6^th Street improvements and setbacks from development.
The super setback now creates a corridor 225-250’ wide along 6^th Street from Folks Road to the SLT (125-150’ ROW/100’ total setback), a significantly wider corridor than that established by the original regulation.
With 150’ of right-of-way now in place on newly constructed 6^th Street, normal zoning setbacks will more than maintain the 200’ corridor established in 1990 (150’ ROW/60-70’ total setback).
The purpose for which the super setback was established—constructing an enlarged 6^th Street as a gateway entrance—has been accomplished and can be maintained through normal zoning setbacks.
There is sufficient right-of-way available to widen 6^th Street in the future, if necessary.
6^th Street is the only gateway entrance to the City with a super setback requirement and, even with normal zoning setbacks applied, it is the City’s widest gateway corridor.
The 50’ setback now creates consequences unintended in 1990 and penalizes undeveloped property where 25’ of additional right-of-way has already been taken.
No arguments or compelling reasons have been advanced for maintaining the super setback on 6^th Street with a corridor 225-250’ wide—only a call for study.
It is unclear how long a gateway study will take but the current unintendedly wide corridor has a particularly adverse impact on the Bauer Farm project.
The section of the 6^th Street corridor between Folks and Congressional will be unbalanced if the super setback is required, with 100’ of right-of-way and setback south of the centerline and 125’ or right-of-way and setback north of the centerline.
The super setback now creates more sprawl and actually goes counter to much current planning practice. Some forward thinking communities are planning major arterial corridors which limit and minimize setbacks so buildings can be closer to the roadway.

The proposed text amendment on the 50’ setback addresses only condemnation impacts to existing setbacks on developed properties, not prospective impacts on undeveloped property. Because the north side of 6^th Street is not yet developed between Folks and Wakarusa, the City will effectively take for free 25’ more of the Bauer Farm property than the extraordinary setback provision originally required. A 25’ setback on the Bauer property is all that is needed (in addition to the 75’ of road right-of-way north of the 6^th Street centerline) to both a.) create a total right-of-way/set back area on the north side of 6^th Street equal to the south side, and, b.) comply with the ordinance’s original requirement of a 200’ corridor.

Under KSA 12-765, the standard to obtain a variance from the 50’ extraordinary setback requirement is “unwarranted hardship, which constitutes a complete deprivation of use.” The unwarranted hardship aspect is not hard to establish, but proving a complete deprivation of use is a high standard indeed. Normal setback requirements in the zoning regulations allow the Planning and City Commissions to determine exceptions under a more reasonable standard.

You received a letter recently from Westgate’s attorney questioning the validity of the proposed text amendment to the 50’ setback regulation. As they noted, repealing the ordinance altogether would be a better way to resolve these issues.

Attached are drawings with profiles of the varying widths along the 6^th Street corridor with the 50’ setback applied and with normal zoning setbacks applied. The corridor consistent with the original intent and effect of the 1990 ordinance is the green one with normal zoning setbacks. The red corridor with the extraordinary setback applied is 20-25% wider than originally intended and unbalanced north and south of the centerline in the section from Folks Road to Congressional.

This matter has been discussed for several months now at several Planning Commission meetings and study sessions. While there is interest in addressing the issue, it has been suggested that more study and consideration of other gateway issues is needed. But no compelling reasons have been advanced for maintaining a corridor much wider than was originally intended and established.

The City created a 200’ corridor in 1990 for sound planning purposes. The super setback served its purpose but now works counter-productively. It is no longer needed to preserve and maintain the intended 200’ gateway corridor. More study will not change these facts. If a wider, irregular corridor is desired, sound planning reasons should be offered now to support this unintended consequence of the regulation.

I appreciate your consideration of this request and urge you to repeal the extraordinary setback.

Sincerely,

Dan Watkins