METROPOLITAN AREA PLANNING COMMISSION MINUTES April 5, 2001 The regular meeting of the Wichita-Sedgwick County Metropolitan Area Planning Commission was held on Thursday, April 5, 2001, at 1:00 p.m., in the Planning Department Conference Room, 10th floor, City Hall, 455 North Main, Wichita, Kansas. The following members were present: Jerry Michaelis, Acting Chair; James Barfield (late arrival); Dorman Blake; Kerry Coulter; Frank Garofalo; Bud Hentzen; Bill Johnson; Richard Lopez (late arrival); John McKay, Jr.; Ron Marnell; Susan Osborne-Howes (late arrival); George Platt; Harold Warner and Ray Warren. Staff members present were Marvin S. Krout, Secretary; Dale Miller, Assistant Secretary; Donna Goltry, Principal Planner; Scott Knebel, Senior Planner; Bill Longnecker, Senior Planner, Neil Strahl, Senior Planner; and Karen Wolf, Recording Secretary. 1. Case No. DR2001-02 – Adoption of the amendments to the Wichita-Sedgwick County Unified Zoning Code. DONNA GOLTRY, Planning staff, "This is a segment of the adoption of amendments to the Unified Zoning Code. Today's discussion is to be focused on the topic of adult entertainment and sexually oriented businesses. I had sent a packet to you on Friday where I had excerpted those portions of the proposed amendments that related only to sexually oriented businesses and adult entertainment. I did have three little errors in it, so I have a supplemental memo that is at each of your desks. If you will turn to that supplemental memo, I will go through what the change is on each page. On the first page, on no non-conformities created by adoption of this Code, I had improperly listed on the very bottom where it is underlined. The version you got two weeks ago said Section VII-I. That was correct because it cross-referenced registration of non-conformities. It was pointed out to me at our public hearing that we had two weeks ago that it should have had a cross-reference to Section VII-J, which is the amortization of non-conformities. I did not get the message properly and did not realize that I should have incorporated both. It should read both Section 7-I and 7-J. That is the change on Section 1. Did you all find what I am talking about, or am I moving too quickly? On the second page, the only changes in the 'cut and paste' job I did to give you only the adult entertainment- sexually oriented business information, word decided that night club in the City must be labeled as far as 'a', but it should have been labeled 'b' because I didn't include everything like the first definition. So that is the software program. It is correct as shown on the supplement 'b' nightclub in the City. Turning to Page 3, I was only excerpting those sections that related to the 'SOBs'. I should have included specifically listing out that sexually oriented business is subject to Section III-D.6. (ff). Those are the supplemental regs on that. That should appear in Section III.14, which is on Limited Commercial District. Section III-B.16, which is the General Commercial district, Section 3-B.19, which is the Limited Industrial district, and Section 3.B.20, which is the General Industrial district. It did not appear in the CBD district, since we do not have any County establishments within the CBD. I know that I have already presented twice on this subject, and so I don't think I need to say any additional words. I do have Karen Duranleau with the County Counselor's office here today and I believe she has a few words she would like top say to you regarding the County's requested language." Osborne-Howes arrived at 1:15 p.m. DURANLEAU "Good afternoon. I am the Assistant County Counselor. You have before you these proposed amendments, which would make the Unified Zoning Code a provision for the sexually oriented businesses. The authority under Kansas law is KSA 12-770B, which allows Sedgwick County the specific authority to regulate sexually oriented businesses constituting non-conforming uses. Last year, the County was approached by at least hundreds, maybe thousands of citizens who complained about the secondary effects of these of these businesses that they were having on their communities. The County responded by enacting the most recent adult entertainment code. That was enacted in June of 2000, and slightly amended in November. This was enacted pursuant to the County's ability to regulate the health, safety and welfare of the citizens. The basic overall jest of the County's adult Entertainment Code is to separate alcohol from nudity and give the adult businesses four years to relocate not closer than 1,000 feet from a public park, church, school, another adult establishment or an alcohol establishment. It gives them four years. That is one of the basics of the County's Code. The County could have banned public nudity completely but chose to not do so. The County's Code does not prevent nude dancing; it is the separation of the nudity and the alcohol. There are other regulatory items within the Code. It is a 50-page Code; it is lengthy, but that is just a summary of what the County's Code does. Currently, as you know, the Unified Zoning Code does not regulate these types of businesses, and we are asking this Committee to adopt these proposed amendments so that we can have the County Code and the Unified Zoning Code go hand in hand and be in conformity with each other. Does anybody have any questions?" HENTZEN "I would like to ask you, in the last paragraph of your presentation, do I understand that correctly? It says 'on or before June 30 of 2004'…." DURANLEAU "Are you referring to the blue sheet?" KROUT "On Donna's attachment, the very last page, the last paragraph." DURANLEAU "Okay. 'On or before June 30, 2004, yes." HENTZEN "That means that they have until that date in which to find a place to move." HENTZEN "Not to get out of business." DURANLEAU "No, not get out of business, but to find a place to move, which is not within 1,000 feet of a school, park, church, residential area, an alcohol establish or another adult business. They have until then to move. If they are currently within 1,000 feet of one of those items, they have until June 30, 2004 to move." HENTZEN "That is what I thought it said." MICHAELIS "This is a hypothetical question, but what would happen, if, for instance, one of these places were located outside of that 1,000 foot area and then within this time frame some church or something like that moves in next to them." DURANLEAU "We did provide for that as an exception that wouldn't be a burden on the adult business. If a place moves in, that would be an exception and that is under Amortization 'J' Section I-B, I believe it is." MICHAELIS "Okay." DURANLEAU "I am sorry, it isn't that one, it is Section 1-C." Barfield arrived at the meeting at 1:31 p.m. MICHAELIS "That is still saying that it has until 2004 though." DURANLEAU "Oh, it is 1-A. I'm sorry." GOLTRY "I know it is there somewhere." DURANLEAU "It is in 1-A. It says 'Section 1 above shall not apply to a sexually oriented business if said sexually oriented business first locates at a particular premises after June 28, 2000. That is the date of the enactment of the Code. And the church, school, public park, residential dwelling, another adult establishment or an alcohol establishment moves into the 1,000 foot area after the sexually oriented business has commenced operations on the premises. So it is 1-A." MICHAELIS "So do I understand that to mean, then, that if this was there before June 28, 2000 that they will fall under this exemption, or where will they be then?" DURANLEAU "If they were there before that business.." MICHAELIS "If they were in business before June 28, 2000, and then somebody moves in next to them, are they going to be required to move, or can they stay?" DURANLEAU "That one is addressed in Exception 'C', 'a sexually oriented business may remain at a location within 1,000 feet of a church, etc., until June 30 of 2004 if that business was operating as one of those sexually oriented businesses before March 1 so long as it is in compliance with the provisions of the Code. Humm….Did we get this one in there, Donna?" MICHAELIS "I wonder, too. I am totally confused now. Because it seems to me like the only time they can stay is if they were there after June 28, 2000, the way this is written, or the way I understand it." DURANLEAU "I am sure that was there. (To man in the audience) Do you see that one, Allen?" MICHAELIS "It almost seems easier if we wouldn't put a June 28, 2000 in and just say anything that is already existing." DURANLEAU "If it is consistent with the Adult Entertainment Code, then I believe we do have a provision in the Adult Entertainment Code that says that if a school, church, park, etc., moves into that area, that that doesn't prevent that club from continuing to operate." MICHAELIS "Right, but then we come back to paragraph C, and it says that they only have until June 20, 2004,…." DURANLEAU "Yes, it does." MICHAELIS "Where the first exception says that if they were there after June 28 of 2000, they could stay indefinitely." GOLTRY "That is right." MICHAELIS "Well, my question is what happens before June 28, 2000?" GOLTRY "If it was a legal establishment and it is in compliance between 1997 and June 28, 2000, that is where you have the amortization." DURANLEAU "Right. They would fall within that amortization section. They would need to be out by then." GOLTRY "That is the way it was explained to me." MICHAELIS "So any pre-existing business that was located prior to June 28, 2000 and a church or a park moves in next to them, then they are going to be required to relocated by the 2004 date?" DURANLEAU "I agree that that is the way it reads here. Our Code does have provisions that don't require a club to move because someone moved in next to them." MICHAELIS "I think that one needs some rework. I don't think it is at all fair to ask somebody that was there in 1998 to relocate when somebody comes in and puts up a brand-new building June 29, 2000 and they don't have to relocate." DURANLEAU "I agree and I apologize. I thought I caught everything on the revisions, but apparently that one slipped through." KROUT "I think that to the point that if it came in after June 28 of 2000, the only way it could have come in is if it meant the 1,000 foot requirements." DURANLEAU "Right." KROUT "And if it met the requirements of the Adult Entertainment Code." DURANLEAU "Right. So in other words, we are making a current requirement that they cannot locate there. We are accepting only the ones that are currently within 1,000 feet of those until 2004." KROUT "But this does apply if there is one out there today that was established before June 28 of 2000, if it met and it still meets all of the requirements of the 1,000 foot requirements today and then tomorrow a residence comes in within 1,000 feet that it is subject to amortization. I am not sure, why should it matter whether it was established before or after June 28?" DURANLEAU "That is when the new Code came into effect, or was adopted. I do agree that that is not entirely what we meant and we may need to re-word that if it is not acceptable to the Commission. I agree that it is not clear." KROUT "I know that the County Commission is anxious to get this on their agenda. Is it possible that maybe the County Counselor's office can do some more research and work and come back later on our agenda this afternoon?" DURANLEAU "We will be happy to do that." JOHNSON "I want to take a little different approach and ask staff, once this is in place and we have a piece of property that has a business in it if there is an application for something within that 1,000 feet, will staff's position have to be that they will not support it because it is within 1,000 feet of one of these adult entertainment centers?" KROUT "No. But the implication of you approving something that is within 1,000 feet, if that use was established before June 28, the impact would be that that use has to go. But I don't think that would be a reason for us to necessarily recommend denial of a use." JOHNSON "As well as if the owner of one of the businesses comes in protesting the approval of one." KROUT "Yes, he might." WARREN "If this is passed, obviously, it passed anything that deals with I suppose, in this case, that deals with the 1st and 5th amendment, it is going to probably be subject to a test of constitutionality. Was this drafted from some ordinance that has already been tested?" DURANLEAU "Certain sections of the County's Adult Entertainment Code was borrowed from a code that was enacted by another city. To my understanding, that was still not an established code, but the County consulted with several constitutional lawyers and one of the drafters of the Code is here today. Every attempt was made to not restrict their first amendment rights. And yes, we do expect our Code to be challenged. It is just the nature of the beast. It is one of those things that will probably be challenged, but we have done everything that we could think of to place safeguards in effect for the 1st Amendment rights." WARREN "If you chose then, for whatever reason, instead of making this a 1st amendment item, was to make it a property rights item, I think." DURANLEAU "Like I mentioned, the County has the power to make regulations for the health, safety and welfare of their citizens, which is traditionally called 'police power'. The County has that power in addition to the statutory power that I mentioned, KSA 12-77. B. It does specifically authorize the County to enact sexually oriented businesses that are not conforming. We can eliminate those. It does allow that. So we have several different authorities to enact under, and this is another one of our authorities that we are attempting to regulate." WARREN "I have no good feeling about sleaze or this kind of business at all and I would do everything I could to oppose it. I do question, though, whether it is really a land use issue. But that is something that could be resolved later. I really think it is a 1st amendment issue." GAROFALO "I, too, am real confused on all of this date business. Is the intent here that as of June 30, 2004, none of these places can be within 1,000 feet?" DURANLEAU "Yes, that is the intent of it." GAROFALO "I would think that you could say it a lot planer than some of the ways you have got it here." DURANLEAU "Well, we had to make the general rule that they could not be there at that location and then make exceptions—you know, they are accepted until June 30, 2004. They can remain there, that they don't have to move right now." GAROFLAO "But everybody has to move if they are there no matter when they went in, in 2004, they have to be out." DURANLEAU "That is what we are going to work on this afternoon, to make sure that it is in conformity with the Adult Entertainment Code. It is my understanding that there is an exception in the Adult Entertainment Code to schools that move in next to, let's say, an adult business. They haven't, in essence, waived that in moving in next to that place." GAROFALO "So they can remain?" DURANLEAU "That is my understanding with the Adult Entertainment Code, and I will research that and come back. If it would make the Commission feel better about it, I would certainly want this to in conformity with the Adult Entertainment Code." MCKAY "I have two or three things. No. 1, I am confused about the four years. You say four years and then you say before June of 2004." DURANLEA "Four years from the date that the Adult Entertainment Code was enacted." MCKAY "So it really isn't four years from the time this portion is approved, it is from when the other one was. So this is like an amendment to it?" DURANLEAU "Well, this isn't really an amendment to the Adult Entertainment Code, it is another enactment of the County's power. It is not really an amendment to it, but I am speaking of the four years. That is when the Adult Entertainment Code was enacted." MCKAY "This portion of it was not adopted, so by using four years, if I am reading this, I am thinking of four years from the date of adoption, and not something that happened a year and a half ago." I think we have beat the grandfather portion of it to death, and you are going to re-write that. But I agree with Ray. I think we are using zoning to regulate morality and I agree that I don't think it is something that has to do with zoning." DURANLEAU "Well, like I said, we have done very thorough research, and this is not a moral issue, it is an issue that has been raised by many citizens that they don't like the way that these businesses are having effects on their communities. They are diseases and the secondary effects can go on and on about what types of diseases these places harbor and encourage. The effects on children going to school, people trying to worship; you can say that they are morality, but there are so many other things that they effect. As I said, the County could have had a complete ban on public nudity. The City of Wichita did that, and the County chose not to. It is just a matter of separating the alcohol and the nudity. We tried to tailor it so that it is not completely prohibited. The Statute gives us the authority to do this and it is just another avenue that we would like to have available." MARNELL "Could I suggest that we leave this subject now if we are not going to vote on it? Then when they have made the modifications, we can take it back up." MICHAELIS "Well, let's say if you have a question about the date issue, then no, but if we have some other questions, we might just as well do them now." PLATT "Yes, in case they have to change something else." MARNELL "I have a question that has to do with the amortization is purely fixed on a date in the past, so if we go five years forward and a business locates, builds a building somewhere and is operating lawfully and next to them happens to be, we will say some farm land or if a person builds a residence within 1,000 feet of it, are they immediately out of business?" DURANLEAU "That is one of the provisions that I need to check on to make sure that our proposed Code amendments match to the Adult Code." MARNELL "Yes, because I understood that you said that the amortization is based on the specific date, not a period of time." DURANLEAU "Right. It is based on the June 30 date. We used the same dates and we did intend on getting this finalized with the Commission before now, so it may be the time lag—we are coming up on a year—so that is why we used that date is what I am saying, we used the date of June 30 of 2004 and that is why I keep saying four years because it is four years from the date that it was enacted by the Board of County Commissioners. There is, I believe case law and cases that have been tested successfully on a two-year amortization, and so we didn't want to come that close, so we chose the four years to amortize." MARNELL "What I am asking though, is that once you get past that specific date, and someone is operating a lawful business and a residence goes in within 1,000 feet, it makes them in violation immediately." DURANLEAU "That is what I am going to work on. We are working on an exception on that. I agree that that would not be fair to make them move. I just have to make it in conformity with our Adult Code, and I am sorry that I didn't catch that earlier." HENTZEN "I want to ask about that amortization, too. On a broader sense, we have probably at least hundreds or maybe even thousands of non-conforming legal businesses in this county. Do you feel that we, as the City and the County together can amortize any non-conforming business in the non-conforming legal business? I am thinking of a junkyard or something else that we are tired of but they have been there for 40 years. Can we do that to them like we are doing it to these people?" DURANLEAU "I am not an expert on all Zoning Code issues, but it seems to me—and there would be case law, I am sure, in each individual circumstance—but I would think so. Amortization is so that we don't immediately deprive them of a property right, and by giving them that time to locate, then we are balancing out our takings, the Government takings and giving them that time period. I can't claim to be an expert on all case law or every situation that exists, but just my gut feeling is that that would be okay." OSBORNE-HOWES "I have two questions. I came in late, so maybe somebody has already addressed this. The first one is that let's say that I have an adult-oriented bookstore out in the County and I had had it for 10 years. In the year 2003, someone locates a residence next to me. Would I then have to go out of business?" MICHAELIS "That has been the big debate. That is what she is going to try to work out." OSBORNE-HOWES "Okay. Good. Secondly, is Sedgwick County basically saying to us that they want this law to be in existence and we are just trying to create conformity with the zoning? Because I have the same question, I think that some of the other people have had." DURANLEAU "We feel that it would be just simply more of a conformity with each other so that one hand doesn't conflict the other hand and both bodies of law go together and are not in conflict with each other." OSBORNE-HOWES "Are you saying that you want to have conformity in this area?" DURANLEAU "Yes. That is very important. And, as I said, we do expect this to be challenged, and we would like to be as prepared as possible in all avenues, and this is one of them." WARREN "In response to Bud's concern about amortization and how far can you take it in terms of a legally non- conforming business, probably the closest thing is working its way through the court system right now is that they have done this on road signs where they wanted to abandon road signs. Marvin, I think you are quite familiar with some of the cases. They want to get rid of the billboards, so they are giving them a number of years to amortize those out four or five years, and those are working their way through the system, I think headed for the Supreme Court. Is that legal that you can take a guy's business and wipe it out simply by declaring it amortization?" KROUT "I don't want to extend this any further than necessary, and there may well be court cases dealing with billboards because billboards are special issues and signs are special issues and they deal with the constitutional issue of speech. But there is case law throughout the country of using the Zoning Code to amortize, over a reasonable period, where the property owner can recover his investment, you can terminate non-conforming uses. The State of Kansas hasn't had that provision until several years ago, when it was adopted. I would be glad to have the County Law office provide you with numerous cases where that has been upheld. I think that normally communities are very cautious about when and what kinds of uses they put it to. I remember a very difficult case involving a lead smelter that was within a residential neighborhood in Dallas, and that use was terminated and it was contested, and it was upheld, and I know that others are, too. So I don't think that this is an untested area in the courts. I think that there is clear statutory provision and there is a lot of case law that backs it up as long as the decisions are reasonable as applied to a particular property." MICHAELIS "Okay. When you can bring this back, we will work it in." DURANLEAU "All right. We will." ------------------------------------------------- 2. Approval of minutes for February 22, 2001. MOTION: That the Metropolitan Area Planning Commission approve the minutes of February 22, 2001 as presented. GAROFALO moved, BLAKE seconded the motion, and it carried unanimously (13-0). --------------------------------------------------------------------- 3. Consideration of Subdivision Committee recommendations MICHAELIS "We are going to pull Item No. 3/1. Are there any other ones that need to be pulled out? If not, we can take a motion on items 3/2, 3/3, 3/4 and 3/5. Is there anyone here in the audience to speak on any of these items?" Subdivision items 3/2, 3/3, 3/4 and 3/5 were approved subject to Subdivision Committee recommendations. WARREN moved, COULTER seconded the motion, and it carried unanimously (13-0). 3/2. SUB2001-06 – Final Plat of SCHULTE COUNTRY STORAGE ADDITION, located north of K-42 and MacArthur Road, west of Maize. A. Since neither municipal water nor sanitary sewer is available to serve this property, the applicant shall contact the Environmental Health Division of the Health Department to find out what tests may be necessary and what standards are to be met for approval of on-site sewerage facilities and water wells. A memorandum shall be obtained specifying approval. Health Department has required a guarantee to abandon the existing lagoon upon the extension of sanitary sewer and water services. B. City Engineering has required petitions for future extensions of sanitary sewer and City water. C. If improvements are guaranteed by petition, a notarized certificate listing the petitions shall be submitted to the Planning department for recording. D. County Engineering needs to comment on the status of the applicant's drainage plan. A floodway reserve is needed across Lot 1, Block A, Schulte Country Store Addition. and should be established by separate instrument. A letter shall be provided from KDOT indicating their agreement to accept drainage occurring onto K-42. E. Access to this site is proposed from K-42, through an existing driveway located on the adjoining property to the southeast. A cross-lot access agreement will need to be granted by separate instrument. The face of the plat shall indicate, "Access control except two openings as shown on Schulte Country Storage Addition." County Fire Department has required construction of the access drive prior to any structures. F. The applicant shall submit an avigational easement covering all of the subject plat and a restrictive covenant assuring that adequate construction methods will be used to minimize the effects of noise pollution in the habitable structures constructed on subject property. G. A Protective Overlay Certificate shall be submitted to MAPD prior to City Council consideration, identifying the approved Protective Overlay (referenced as P-O #78) and its special conditions for development on this property. H. The applicant is reminded that a platting binder is required with the final plat tracing. Approval of this plat will be subject to submittal of this binder and any relevant conditions found by such a review. I. On the final plat, the MAPC signature block needs to reference "J.D. Michaelis, Acting Chair". J. The plattor's text shall include language that a drainage plan has been developed for the plat and that all drainage easements, rights-of-way, or reserves shall remain at established grades or as modified with the approval of the applicable City or County Engineer, and unobstructed to allow for the conveyance of storm water. K. The applicant shall install or guarantee the installation of all utilities and facilities which are applicable and described in Article 8 of the MAPC Subdivision Regulations. (Water service and fire hydrants required by Article 8 for fire protection shall be as per the direction and approval of the Chief of the Fire Department.) L. The applicant's engineer is advised that the Register of Deeds is requiring the name(s) of the notary public, who acknowledges the signatures on this plat, to be printed beneath the notary's signature. M. To receive mail delivery without delay, and to avoid unnecessary expense, the applicant is advised of the necessity to meet with the U.S. Postal Service Growth Management Coordinator (Phone 316-729-0102) prior to development of the plat so that the type of delivery, and the tentative mailbox locations can be determined. N. The applicant is advised that various State and Federal requirements (specifically but not limited to the Army Corps of Engineers, Kanopolis Project Office, Rt. 1, Box 317, Valley Center, KS 67147) for the control of soil and wind erosion and the protection of wetlands may impact how this site can be developed. It is the applicant's responsibility to contact all appropriate agencies to determine any such requirements. O. The owner of the subdivision should be aware of the fact that the development of any subdivision greater than five (5) acres in size may require an NPDES Storm Water Discharge Permit from the Kansas Department of Health and Environment in Topeka. Further, on all construction sites, the City of Wichita requires that best management practices be used to reduce pollutant loadings in storm water runoffs. P. Perimeter closure computations shall be submitted with the final plat tracing. Q. Recording of the plat within thirty (30) days after approval by the City Council and/or County Commission. R. The representatives from the utility companies should be prepared to comment on the need for any additional utility easements to be platted on this property. S. The applicant is reminded that a disk shall be submitted with the final plat tracing to the Planning Department detailing this plat in digital format in AutoCAD. This will be used by the City and County GIS Department. ------------------------------------------ 3/3. SUB 2001-19 – Final Plat of WHEATLAND COMMERCIAL ADDITION, located on the south side of MacArthur Road, on the west side of Hoover Road. A. Municipal water services are available to serve the site. City Engineering has required a guarantee for sanitary sewer extension for Lot 2. B. As this site is adjacent to Wichita's City limits, the Applicant shall submit a request for annexation. C. If improvements are guaranteed by petition, a notarized certificate listing the petitions shall be submitted to the Planning department for recording. D. City/County Engineering needs to comment on the status of the applicant's drainage plan. City/County Engineering has approved the drainage plan. Improvements will be required at time of site development. E. The plat proposes one access opening both Hoover Road and MacArthur Road. County Engineering requests a cross-lot access easement within Lot 1 for the benefit of the adjoining unplatted lot to the north. F. The cross-lot access easements shall be established by separate instrument. Initial construction responsibilities and future maintenance of the driveways within the easements should also be addressed by the text of the instrument. G. The applicant shall submit a copy of the instrument which establishes the pipeline easements on the property, which verifies that the easements shown are sufficient and that utilities may be located adjacent to and within the easements. H. Based upon the platting binder, property taxes are still outstanding. Before the plat is scheduled for City Council consideration, proof shall be provided indicating that all applicable property taxes have been paid. I. On the final plat tracing, the MAPC signature block needs to reference "J.D. Michaelis, Acting Chair". J. The plattor's text shall include language that a drainage plan has been developed for the plat and that all drainage easements, rights-of-way, or reserves shall remain at established grades or as modified with the approval of the applicable City or County Engineer, and unobstructed to allow for the conveyance of storm water. K. The applicant shall install or guarantee the installation of all utilities and facilities which are applicable and described in Article 8 of the MAPC Subdivision Regulations. (Water service and fire hydrants required by Article 8 for fire protection shall be as per the direction and approval of the Chief of the Fire Department.) L. The applicant's engineer is advised that the Register of Deeds is requiring the name(s) of the notary public, who acknowledges the signatures on this plat, to be printed beneath the notary's signature. M. To receive mail delivery without delay, and to avoid unnecessary expense, the applicant is advised of the necessity to meet with the U.S. Postal Service Growth Management Coordinator (Phone 316-729-0102) prior to development of the plat so that the type of delivery, and the tentative mailbox locations can be determined. N. The applicant is advised that various State and Federal requirements (specifically but not limited to the Army Corps of Engineers, Kanopolis Project Office, Rt. 1, Box 317, Valley Center, KS 67147) for the control of soil and wind erosion and the protection of wetlands may impact how this site can be developed. It is the applicant's responsibility to contact all appropriate agencies to determine any such requirements. O. The owner of the subdivision should be aware of the fact that the development of any subdivision greater than five (5) acres in size may require an NPDES Storm Water Discharge Permit from the Kansas Department of Health and Environment in Topeka. Further, on all construction sites, the City of Wichita requires that best management practices be used to reduce pollutant loadings in storm water runoffs. P. Perimeter closure computations shall be submitted with the final plat tracing. Q. Recording of the plat within thirty (30) days after approval by the City Council and/or County Commission. R. The representatives from the utility companies should be prepared to comment on the need for any additional utility easements to be platted on this property. S. The applicant is reminded that a disk shall be submitted with the final plat tracing to the Planning Department detailing this plat in digital format in AutoCAD. This will be used by the City and County GIS Department. -------------------------------------------- 3/4. SUB2001-21 – Final Plat of BIG FOOT ESTATES, located on the north side of 55th Street South. West of 231st Street West. A. Since sanitary sewer is unavailable to serve this property, the applicant shall contact the Environmental Health Division of the Health Department to find out what tests may be necessary and what standards are to be met for approval of on-site sewerage facilities. A memorandum shall be obtained specifying approval. A restrictive covenant is required that limits Lot 1 to non-domestic uses on the site until public sewer is available. A site plan is also required. B. The site is currently served by Rural Water District No. 4. The applicant shall contact this water district to determine the ability of this property being platted to connect to their water line and submit a letter from the water district to that effect. C. If improvements are guaranteed by petition, a notarized certificate listing the petitions shall be submitted to the Planning department for recording. D. County Engineering needs to comment on the status of the applicant's drainage plan. A Master Drainage plan needs to be submitted. E. County Fire Department needs to comment on the proposed access easement for Lot 2. No building shall be constructed on Lot 2 until the driveway is built. F. To provide for access to Lot 2, an access easement needs to be established by separate instrument. Initial construction responsibilities and future maintenance of the driveway within the easement should also be addressed by the text of the instrument. County Engineering has required a 50-ft access easement, which will be relocated by the applicant to the west property line. G. The applicant shall submit a copy of the instrument which establishes the pipeline easements on the property, which verifies that the easements shown are sufficient and that utilities may be located adjacent to and within the easements. H. The applicant's agent shall determine any setback requirements for the pipelines by researching the text of the pipeline agreements. If a setback from the pipeline easements is provided for in the pipeline easement agreements, it shall be indicated on the face of the plat. I. On the final plat tracing, the MAPC signature block needs to reference "J.D. Michaelis, Acting Chair". J. On the final plat tracing, the platter's text shall include language that a drainage plan has been developed for the plat and that all drainage easements, rights-of-way, or reserves shall remain at established grades or as modified with the approval of the applicable City or County Engineer, and unobstructed to allow for the conveyance of storm water. K. The applicant shall install or guarantee the installation of all utilities and facilities which are applicable and described in Article 8 of the MAPC Subdivision Regulations. (Water service and fire hydrants required by Article 8 for fire protection shall be as per the direction and approval of the Chief of the Fire Department.) L. The applicant's engineer is advised that the Register of Deeds is requiring the name(s) of the notary public, who acknowledges the signatures on this plat, to be printed beneath the notary's signature. M. To receive mail delivery without delay, and to avoid unnecessary expense, the applicant is advised of the necessity to meet with the U.S. Postal Service Growth Management Coordinator (Phone 316-729-0102) prior to development of the plat so that the type of delivery, and the tentative mailbox locations can be determined. N. The applicant is advised that various State and Federal requirements (specifically but not limited to the Army Corps of Engineers, Kanopolis Project Office, Rt. 1, Box 317, Valley Center, KS 67147) for the control of soil and wind erosion and the protection of wetlands may impact how this site can be developed. It is the applicant's responsibility to contact all appropriate agencies to determine any such requirements. O. The owner of the subdivision should be aware of the fact that the development of any subdivision greater than five (5) acres in size may require an NPDES Storm Water Discharge Permit from the Kansas Department of Health and Environment in Topeka. Further, on all construction sites, the City of Wichita requires that best management practices be used to reduce pollutant loadings in storm water runoffs. P. Perimeter closure computations shall be submitted with the final plat tracing. Q. Recording of the plat within thirty (30) days after approval by the City Council and/or County Commission. R. The representatives from the utility companies should be prepared to comment on the need for any additional utility easements to be platted on this property. S. The applicant is reminded that a disk shall be submitted with the final plat tracing to the Planning Department detailing this plat in digital format in AutoCAD. This will be used by the City and County GIS Department. ------------------------------------------------ 3/5. SUB2001-35 - One-Step Final Plat of APEX ENGINEERING ADDITION, located west of Main Street between 11th and 12th Streets. A. Municipal services are available to serve the site. The utility easement covering the sanitary sewer lines should be increased to 20 feet where it is not located under the structures. B. If improvements are guaranteed by petition, a notarized certificate listing the petitions shall be submitted to the Planning department for recording. C. City Engineering needs to comment on the status of the applicant's drainage plan. The drainage plan is approved. D. The plat proposes three access openings along Main Street. Complete access control shall be dedicated along Main for the northerly lot (Apex property). The face of the plat shall indicate on the appropriate segments "access control except one opening" and "complete access control". E. The plat needs to indicate the right-of-way widths for abutting streets. F. Dimensions need to be added for the east line of Lot 1, Block 1; the east line of Lot 1, Block 2; the south line of Lot 1, Block 2, and the south line of Lot 2, Block 2. G. The legal description needs to be revised to accurately portray the land being platted. H. The applicant needs to contingently dedicate 5 feet of street right-of-way for Main Street to meet the standard 50-ft half street right-of-way. This dedication needs to be referenced in the plattor's text. I. On the final plat, the MAPC signature block needs to reference "J.D. Michaelis, Acting Chair". J. The applicant shall guarantee the closure of the alley returns or construct the vacated alley returns to a private driveway standard. K. The applicant is reminded that a platting binder is required with the final plat. Approval of this plat will be subject to submittal of this binder and any relevant conditions found by such a review. L. The plattor's text shall include language that a drainage plan has been developed for the plat and that all drainage easements, rights-of-way, or reserves shall remain at established grades or as modified with the approval of the applicable City or County Engineer, and unobstructed to allow for the conveyance of storm water. M. The applicant shall install or guarantee the installation of all utilities and facilities which are applicable and described in Article 8 of the MAPC Subdivision Regulations. (Water service and fire hydrants required by Article 8 for fire protection shall be as per the direction and approval of the Chief of the Fire Department.) N. The applicant's engineer is advised that the Register of Deeds is requiring the name(s) of the notary public, who acknowledges the signatures on this plat, to be printed beneath the notary's signature. O. To receive mail delivery without delay, and to avoid unnecessary expense, the applicant is advised of the necessity to meet with the U.S. Postal Service Growth Management Coordinator (Phone 316-729-0102) prior to development of the plat so that the type of delivery, and the tentative mailbox locations can be determined. P. The applicant is advised that various State and Federal requirements (specifically but not limited to the Army Corps of Engineers, Kanopolis Project Office, Rt. 1, Box 317, Valley Center, KS 67147) for the control of soil and wind erosion and the protection of wetlands may impact how this site can be developed. It is the applicant's responsibility to contact all appropriate agencies to determine any such requirements. Q. The owner of the subdivision should be aware of the fact that the development of any subdivision greater than five (5) acres in size may require an NPDES Storm Water Discharge Permit from the Kansas Department of Health and Environment in Topeka. Further, on all construction sites, the City of Wichita requires that best management practices be used to reduce pollutant loadings in storm water runoffs. R. Perimeter closure computations shall be submitted with the final plat tracing. S. Recording of the plat within thirty (30) days after approval by the City Council and/or County Commission. T. The representatives from the utility companies should be prepared to comment on the need for any additional utility easements to be platted on this property. U. The applicant is reminded that a disk shall be submitted with the final plat tracing to the Planning Department detailing this plat in digital format in AutoCAD. This will be used by the City and County GIS Department. ------------------------------------------------ 3/1. SUB2001-05 – Final Plat of ECK SEVENTH ADDITION, located on the south side of Central, east of 183rd Street West. A. Since sanitary sewer is unavailable to serve this property, the applicant shall contact the Environmental Health Division of the Health Department to find out what tests may be necessary and what standards are to be met for approval of on-site sewerage facilities. A memorandum shall be obtained specifying approval. Standard soil testing is required. B. The site is currently served by Rural Water District No. 4. The applicant shall contact this water district to determine the ability of this property being platted to connect to their water line and submit a letter to MAPD and Health Department from the water district to that effect. C. City Water and Sewer Department requests a petition for future extension of City water services. D. If improvements are guaranteed by petition, a notarized certificate listing the petitions shall be submitted to the Planning department for recording. E. County Engineering needs to comment on the status of the applicant's drainage plan. A master drainage plan is needed for review. The 20-ft drainage easements need to be increased to 40 feet. F. The plat proposes one joint access opening along Central between Lots 1 and 2. The final plat shall reference the access controls in the plattor's text. County Fire Department requests the increase of the width of the access opening from 30 to 40 feet. G. The applicant shall guarantee the installation of the proposed streets to the 36-ft rock suburban street standard. County Fire Department has required the installation of the streets prior to any construction. H. The plattor's text shall state that the contingent street dedication shall become effective upon the platting of any adjacent subdivision having a street connecting thereto." I. The joint access opening shall be established by separate instrument. Initial construction responsibilities and future maintenance of the driveway within the easement should also be addressed by the text of the instrument. J. On the final plat, the signature line for the County Commissioners Chair needs to indicate, "Carolyn McGinn". K. On the final plat tracing, the MAPC signature block needs to reference "J.D. Michaelis, Acting Chair". L. The County Fire Department needs to comment on the plat's street names. The cul-de-sacs should be named West 179th Street Court. M. The south line of 179th St. West abutting the contingent street dedication should be indicated by a bold line. N. On the final plat tracing, the plattor's text shall include language that a drainage plan has been developed for the plat and that all drainage easements, rights-of-way, or reserves shall remain at established grades or as modified with the approval of the applicable City or County Engineer, and unobstructed to allow for the conveyance of storm water. O. The applicant shall install or guarantee the installation of all utilities and facilities which are applicable and described in Article 8 of the MAPC Subdivision Regulations. (Water service and fire hydrants required by Article 8 for fire protection shall be as per the direction and approval of the Chief of the Fire Department.) P. The applicant's engineer is advised that the Register of Deeds is requiring the name(s) of the notary public, who acknowledges the signatures on this plat, to be printed beneath the notary's signature. Q. To receive mail delivery without delay, and to avoid unnecessary expense, the applicant is advised of the necessity to meet with the U.S. Postal Service Growth Management Coordinator (Phone 316-729-0102) prior to development of the plat so that the type of delivery, and the tentative mailbox locations can be determined. R. The applicant is advised that various State and Federal requirements (specifically but not limited to the Army Corps of Engineers, Kanopolis Project Office, Rt. 1, Box 317, Valley Center, KS 67147) for the control of soil and wind erosion and the protection of wetlands may impact how this site can be developed. It is the applicant's responsibility to contact all appropriate agencies to determine any such requirements. S. The owner of the subdivision should be aware of the fact that the development of any subdivision greater than five (5) acres in size may require an NPDES Storm Water Discharge Permit from the Kansas Department of Health and Environment in Topeka. Further, on all construction sites, the City of Wichita requires that best management practices be used to reduce pollutant loadings in storm water runoffs. T. Perimeter closure computations shall be submitted with the final plat tracing. U. Recording of the plat within thirty (30) days after approval by the City Council and/or County Commission. V. The representatives from the utility companies should be prepared to comment on the need for any additional utility easements to be platted on this property. KGE and Southwestern Bell have requested additional easements. W. The applicant is reminded that a disk shall be submitted with the final plat tracing to the Planning Department detailing this plat in digital format in AutoCAD. This will be used by the City and County GIS Department. MILLER "At the Subdivision Committee meeting, for those who don't sit on the Subdivision Committee, we had an issue over where staff was asking for a pathway to be dedicated along with a drainage easement, and after two motions to approve without it, it ended up with a 3-3 vote to deny. So the applicant is appealing it to the full Planning Commission. In between the Subdivision Committee meeting and today, staff has met among ourselves and decided that we would drop that request at this point and take a look at that Parks and Pathway layout and make sure that the pathway is in the most advantageous position. So, for the time being, we are going to drop that request. Now we just need for the Commission to consider the full plat and do whatever you want to do with it." MICHAELIS "Okay. What does that mean?" KROUT "You were recommending approval without the requirement of a pathway." PLATT "Mr. Chair, we need to clear up also, are we increasing drainage easement or not? I want to know what staff is recommending." MICHAELIS "Okay. Do we need to open this up and hear from the applicant?" KROUT "I would say so." MICHAELIS "Why don't we ask Neil?" NEIL STRAHL, Planning staff "That was a County Engineer requirement, increasing that drainage to 40 feet." MICHAELIS "Okay. Let's hear from the applicant." RUSS EWY "I am the agent for the applicant, with Baughman Company. That is correct, there were several issues; one was the attempt by the agent to waive the requirement to petition water, or to provide a water petition for future extension, when and if City water ever becomes available. The other one was the County Engineer's requirement to increase several utilities easements going from the ends of the cul-de-sacs to the east, from 20 feet to 40 feet. That was agreeable." MICHAELIS "Are there any questions?" WARREN "So I take it you are in full agreement of the staff comments with the exception of Item J that cover those parks and pathways?" EWY "That is correct." MICHAELIS "Is there anyone else to speak on this item? So, Item J has been withdrawn by the staff, is that correct?" KROUT "Correct." MICHAELIS "Okay. I will bring it back to the Commission." MOTION: That the Planning Commission recommend to the governing body that the request be approved, subject to staff comments, with the exception of Item J, which has been withdrawn. MCKAY moved, HENTZEN seconded the motion, and it carried unanimously (13-0). ------------------------------------------------- JERRY MICHAELIS, Acting Chair, read the following zoning procedural statement, which is applicable to all City of Wichita zoning cases: Before we begin the agenda, I would like to take this opportunity to welcome members of the public to this meeting of the Metropolitan Area Planning Commission. Copies of the agenda for today's meeting, the public hearing procedure, and copies of staff reports on zoning items are available at the table nearest to the audience. The Commission's bylaws limit the applicant on a zoning or subdivision application and his or her representative(s) to a total of ten minutes of speaking time at the start of the hearing on that item, plus up to two minutes at the conclusion of that hearing. All other persons wishing to speak on agenda items are limited to five minutes per person. However, if they feel that it is needed and justified, the Commission may extend these times by a majority vote. All speakers are requested to state your name and address for the record when beginning to speak. When you are done speaking, please write your name and address, and the case number, on the sheet provided at the table nearest to the audience. This will enable staff to notify you if there are any additional proceedings concerning that item. Please note that all written and visual materials you present to the Commission will be retained by the Secretary as part of the official record. If you are not speaking, but you wish to be notified about future proceedings on a particular case, please sign in on that same sheet. The Planning Commission is interested in hearing the views of all persons who wish to express themselves on our agenda items. However, we ask all speakers to please be as concise as possible, and to please avoid long repetitions of facts or opinions which have already been stated. For your information, the Wichita City Council has adopted a policy for all City zoning and vacation items, which is also available at the table with the other materials. They rely on the written record of the Planning Commission hearings and do not conduct their own additional public hearings on these items. I would like to remind the members of the Planning Commission that our bylaws require you to disclose any ex-parte contacts that you may have had regarding any of the applications on today's agenda. So I would ask you to please remember to disclose the nature of any such contacts you have had before we open the hearing on each case, and what if any impact that information may have on your opinion of the request. ------------------------------------------------------------------------------------ 4/1. VAC2001-00009 – Roger Lowenstien, Kurt Holland, Nancy Tsai Hill and Bryan Legally request to vacate Doris Street, described as: That part of Doris Street described as follows: Beginning at the SE corner of Lot 17, Block B, Eck 4th Addition, Wichita, Sedgwick County, Kansas; thence S89deg44'25"W along the south line of said Lot 17, 30.00 feet to the west line of Doris contingent street dedication as platted in said addition; thence N00deg00'00"E, 270.00 feet to a point on the north line of Lot 1, Block B of addition, said point being the west line of Doris contingent street dedication as platted in said addition; thence N89deg44'56"E, 30.00 feet to the NE corner of said Lot 1; thence easterly 30.00 feet to the NW corner of Lot 1, Carl Smith 2nd Addition, Wichita, Kansas; thence southerly 270.00 feet to the SW corner Lot 1, Block 1, Replat of Part of Lots 23 and 24, R.A. Morris Tracts, Wichita, Kansas; thence westerly 30.00 feet to the point of beginning. The section of Doris Street generally located between 11th Street North and Memory Lane. The applicant proposes to use the street for him and the other 3 abutting landowners. The applicant has stated that all the abutting landowners have maintained the Doris Street ROW since the development or ownership of their respective properties; Lots 1 & 17, Blk. B, Ecks 4th Addition, Lot 1, Carl Smith 2nd Addition and Lot 1, Block 1, (Replat of Lots 23 & 24) RA Morris Tracts. The Ecks 4th Addition Plat (approved July 29, 1997, by the WCC) identifies Doris as "contingent street dedication shall become effective in the event that the City of Wichita determines the need for the right-of-way for any street related purposes. This contingent dedication shall be a covenant running with the land and shall be binding on all heirs and subsequent owners of all parts of said property covered by said dedication." There is no reference to 'Doris contingent street dedication' in the dedications of the Replat of Lots 23 & 24, RA Morris Tracts or the Carl Smith 2nd Addition The vacation would not dead-end Doris or any other street, in fact Doris Street (north of 11th Street N) currently dead- ends into Lots 4 & 5, RA Morris Tracts. Access to 11th Street N and Memory Lane for the 4 lots abutting Doris would be off the existing Smith Street. No properties would be denied access to existing streets by the vacating of Doris Street. Based upon the information available prior to the public hearing, staff recommends the MAPC make the following findings and recommendation to the City Council: A. That after being duly and fully informed as to fully understand the true nature of this petition and the propriety of granting the same, the MAPC makes the following findings: 1. That due and legal notice has been given by publication as required by law, by publication in the Wichita Eagle of notice of this vacation proceeding one time March 15, 2001, which was at least 20 days prior to this public hearing. 2. That no private rights will be injured or endangered by the vacation of the above-described utility easement, and the public will suffer no loss or inconvenience thereby. 3. In justice to the petitioner(s), the prayer of the petition ought to be granted. B. Therefore, the vacation of the utility easements described in the petition should be approved subject to the following conditions: 1. City Public Works recommends that the Doris contingent street dedication and the Doris Street ROW be vacated. 2. Utility Representatives request that 30-ft utility easement in the Doris contingent street dedication be retained. 3. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. 4. Traffic Engineering recommends that the Doris contingent street dedication and the Doris Street ROW be vacated. SUBDIVISION COMMITTEE'S RECOMMENDED ACTION: 1. City Public Works recommends that the Doris contingent street dedication and the Doris Street ROW be vacated. 2. Utility Representatives request that 30-ft utility easement in the Doris contingent street dedication be retained. 3. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. 5. Traffic Engineering recommends that the Doris contingent street dedication and the Doris Street ROW be vacated. BILL LONGNECKER, Planning staff, "This is a request to vacate Doris Street. The location of the request is between Memory Lane and 11th Street that abuts four lots. The reason for the request is that the abutting landowners would like to use this undeveloped right-of-way and this contingent dedication of Doris Street. The Subdivision Committee heard the request and considered it on March 29. Staff recommended approval to the Subdivision Committee recommendation based with the four following conditions: 1. City Public Works recommends that the Doris contingent street and the Doris Street right-of-way be vacated. 2. Utility Representatives request that 30-foot utility easement in the Doris contingent street dedication be retained. 3. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. 4. Traffic Engineering recommends that the Doris contingent street dedication and the Doris Street right-of-way be vacated. The Subdivision Committee concurred with staff's recommendations and conditions attached to the recommendations. Are there any questions?" MICHAELIS "Thank you, Mr. Longnecker. We will hear from the applicant, please." ROGER LOWENSTEIN "I live at 5125 West 11th Street, abutting the property that we are asking to be vacated." MICHAELIS "Are there any questions of the applicant. Is there anyone else in the audience wishing to speak on Item 4-1? Seeing none, I will bring it back to the Commission." MOTION: That the Planning Commission recommend to the governing body that the request be approved, subject to staff comments. PLATT moved, JOHNSON seconded the motion, and it carried unanimously (13-0). --------------------------------------------------------------------- 4/2. VAC2001-00010 – Kingman State Bank requests to vacate 100-foot and 35-foot building setback lines, described as: A 35-foot building setback between Lots 1 and 2 and the 100' building setback along Maple and 135th Street West, all on Lot 1 of Auburn Hills Commercial 2nd Addition, Wichita, Sedgwick County, Kansas. Generally located southwest of the 6th Street South and 135th Street West intersection. The applicant is requesting to vacate the 35 foot building setback between Lots 1 and 2 and the 100' building setback along Maple and 135th Street West, all on Lot 1 of Auburn Hills Commercial 2nd Addition, Wichita, Sedgwick County, Kansas. The proposed building will encourage on both setbacks; the 35-ft setback on the west and south sides and the 100-ft setback on the east side. This particular development is an approved Community Unit Plan (CUP), development Plan 225. Any change to the recorded Building Setback Lines (the 35-ft and 100-ft Building Setback Lines) will require the applicant to submit an adjustment (as shown on 4 accompanying plans reflecting the to the proposed adjusted setback lines, for review by the Planning Director). Based upon the information available prior to the public hearing, staff recommends the MAPC make the following findings and recommendation to the City Council: A. That after being duly and fully informed as to fully understand the true nature of this petition and the propriety of granting the same, the MAPC makes the following findings: That due and legal notice has been given by publication as required by law, by publication in the Wichita Eagle of notice of this vacation proceeding one time March 15, 2001, which was at least 20 days prior to this public hearing. That no private rights will be injured or endangered by the vacation of the above-described access control, and the public will suffer no loss or inconvenience thereby. In justice to the petitioner(s), the prayer of the petition ought to be granted. B. Therefore, the vacation of the utility easement described in the petition should be approved subject to the following conditions. 1. Utility representatives request that the applicant retain a 20-ft x 20-ft area generally located on the north side of the plat, halfway between Lots 1 and 2, on the west side of Lot 2. They request the applicant also retain a 10-ft utility easement along the west side of Lot 1. 2. The applicant shall submit an adjustment to CUP-DP 225, reflecting no less than the minimum setback requirements for Community Unit Plans, as stated in the Wichita Sedgwick County Unified Zoning for review by the Planning Director. 3. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. 4. All improvements shall be according to City Standards. SUBDIVISION COMMITTEE'S RECOMMENDED ACTION: 1. Utility representatives request that the applicant retain a 20-ft x 20-ft area generally located on the north side of the plat, halfway between Lots 1 and 2, on the west side of Lot 2. They request the applicant also retain a 10-ft utility easement along the west side of Lot 1. 2. The applicant shall submit an adjustment to CUP-DP 225, reflecting no less than the minimum setback requirements for Community Unit Plans, as stated in the Wichita Sedgwick County Unified Zoning for review by the Planning Director. 3. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. 4. All improvements shall be according to City Standards. BILL LONGNECKER, Planning staff "This is a request to vacate a 100-foot and a 35-foot building setback line by the Kingman State Bank, located southwest of 6th Street and 135th Street West. The applicant is requesting the 100-foot and 35-foot building setback lines to be vacated because of a proposal to build a 4,000 square foot bank and an 8,400 square foot building that will be used for mixed retail. The zoning is Limited Commercial. The Subdivision Committee heard staff's recommendation on March 29. Staff recommended approval of this request with the following conditions: 1. Utility representatives request that the applicant retain a 20-ft x 20-ft area generally located on the north side of the plat, halfway between Lots 1 and 2, on the west side of Lot 2. They request the applicant also retain a 10-ft utility easement along the west side of Lot 1. 2. The applicant shall submit an adjustment to CUP-DP 225, reflecting no less than the minimum setback requirements for Community Unit Plans, as stated in the Wichita Sedgwick County Unified Zoning for review by the Planning Director. 3. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. 4. All improvements shall be according to City Standards. The Subdivision Committee concurred with staff's recommendations and the attached conditions? Are there any questions?" MCKAY "I have a conflict of interest on this item. I own property around this." MICHAELIS "Okay. Are there any questions of staff? All right, thank you, Mr. Longnecker. The applicant, please." ROB HARTMAN "I an with P.E.C., here on behalf of the applicant. We are in agreement with the staff comments. I also agree that this adjustment has already been made on the CUP back in November." MICHAELIS "Are there any questions of the applicant? Okay, thank you. Is there anyone in the audience wishing to speak on this item? If not, I will bring it back to the Commission." MOTION: That the Planning Commission recommend to the governing body that the request be approved, subject to staff comments. WARREN moved, COULTER seconded the motion, and it carried unanimously (12-0-1). -------------------------------------------------------------- ZONING: 5a. Case No. ZON2001-00013 – Sally and Lowell Loesch (owner and applicant) request zone change from "SF-6" Single-family residential to "GO" General Office; and 5b. Case No. CON2001-00021 – Sally and Lowell Loesch (owner and applicant) request a Conditional Use to permit animal care, limited (small animal veterinary clinic) on property described as: LOT 1, BLOCK 1, RAINBOW LAKES WEST SECOND SECOND ADDITION, SEDGWICK COUNTY, KANSAS EXCEPT PART TAKEN FOR ROAD ON SOUTH. Generally located north of west Central, 1/4 mile east of 135th Street West. DALE MILLER, Planning staff, pointed out land use and zoning; and showed slides of the general area. He reviewed the following staff report: The application area is a 1.5 acres platted lot located on the north side of west Central, ¼ mile east of 135th Street West. The owners are seeking a zone change from "SF-6" Single-family Residential to "GO" General Office with a Conditional Use to permit "animal care, limited" (small animal veterinary clinic). The site is currently developed with single-family residence with one point of access to Central Avenue. The applicant indicates he would like to convert his garage – approximately 800 square feet – to a small animal veterinary clinic. The garage is located on the east end of the residence. The application area is located next to an "S" curve in Central Avenue. There have been instances where vehicles have failed to negotiate the curve and have ended up on the applicant's property. The applicant indicates that on a typical day his current practice sees 10 – 20 clients a day. He also states he needs only a small sign less than 2 square feet. The only kennels he intends to have will be indoors. Hours of operation are to be 7:30 A.M. to 5:30 P.M. Monday thru Friday. The applicant's site plan depicts a 4,000 square foot structure with access off Central and with parking located east of the house. Land surrounding the application area is used either for single-family residential or is in agricultural use. All surrounding property is zoned "SF-6" Single-family Residential or "SF-20" Single-family Residential. There is a pond located west of the house that appears to be part of the Dry Creek drainage system. The closest of these residences is approximately 300 to 400 feet from the home on the application area. The "Unified Zoning Code" first permits "animal care, limited" in the "GO" General Office district with a Conditional Use subject to the following conditions: No noise or odors shall be discernable at the property line; treatment is limited to dogs, cats and other small animals; and all animals are to be harbored indoors. Parking requirements for "animal care, limited" are 1 space per 250 square feet of space. If the applicant uses only 800 square feet, then 4 parking spaces will be required, one of which must be a handicapped stall. Should the existing home be converted to animal care use, then 16 spaces would be required. All parking and drives must be paved with asphalt, asphaltic concrete or concrete. (A more detailed parking plan will have to be submitted and approved by the Zoning Administrator, per Article IV-A 13. Parking lot lighting and screening will also have to comply with code requirements, per Article IV-B.) If this request is approved, the applicant will also need to comply with landscape ordinance requirements. The Sign Code permits 32 square feet of signage in the "GO" district. CASE HISTORY: Rainbow Lakes West Second Addition was platted in December 1977. The site was annexed in 1998 and zoned "SF-6" Single-family Residential at that time. ADJACENT ZONING AND LAND USE: NORTH: "SF-20" Single-family Residential; agricultural SOUTH: "SF-6" Single-family Residential; single-family residences EAST: "SF-6" Single-family Residential; single-family residences WEST: "SF-6" Single-family Residential; single-family residences PUBLIC SERVICES: The lot has platted access control allowing only one opening along Central. Traffic counts are not available at this location. Central is scheduled in the City's CIP to be improved to a four-lane urban arterial in 2008. Neither municipal sanitary sewer or water serve this site today. Water is scheduled to be available in 2006. CONFORMANCE TO PLANS/POLICIES: The "Wichita Land Use Guide" depicts this site as appropriate for "low density residential" uses that provide for the lowest density of urban residential land use plus schools, churches and other similar uses. "Office Location Guidelines" contained in the "Comprehensive Plan" state that office uses should: generally be located adjacent to arterial streets; local, service-oriented offices should be incorporated within or adjacent to neighborhood and community scale commercial development and low-density office use can serve as a transitional land use between residential uses and higher intensity uses. RECOMMENDATION: Based upon information available prior to the public hearings, planning staff recommends that the request be DENIED, however if the Commission feels this request is appropriate, the Conditional Use shall be subject to the following conditions: A. The site shall be developed and maintained in conformance with a revised site plan approved by the Planning Director, and in conformance with Supplementary Use Regulations found in Article III-D 6 c of the Unified Zoning Code. As part of the site plan review, the applicant may be asked to move the location of the drive to a different location that would function better with respect to the "S" curve in Central. B. Uses permitted on the site shall be limited to "animal care, limited" and those uses permitted in the "SF-6" Single- family Residential district. The "animal care, limited" use shall be limited to a maximum size of 1,000 square feet of area. C. All applicable permits, including but not limited to those dealing with health, building and zoning, shall be obtained before the use can begin operation. D. Signage shall be limited to a maximum size of 6 square feet, which is not to be illuminated. E. A landscape plan shall be submitted and approved by the Planning Director prior to beginning clinic activities. F. Any violation of the conditions of approval shall render the Conditional Use null and void. This recommendation is based on the following findings: 1. The zoning, uses and character of the neighborhood. Land surrounding the application area is used either for single-family residences or is in agricultural use. All surrounding property is zoned "SF-6" Single- family Residential or "SF-20" Single-family Residential. The character of the area is large-lot residential and agricultural. 2. The suitability of the subject property for the uses to which it has been restricted. The site is zoned "SF- 6" Single-family Residential which permits single-family residences, churches and schools. The site is developed with a single-family residence that is occupied, appears to be well cared for, and appears to have maintained its value as a residence. The site is suitable for the uses for which it has been restricted. 3. Extent to which removal of the restrictions will detrimentally affect nearby property: Approval of the request will introduce a zoning district and a use that is not currently present in the general area and is not in character with existing nearby uses. 4. Conformance of the requested change to the adopted or recognized Comprehensive Plan: The "Wichita Land Use Guide" depicts this site as appropriate for "low density residential" uses that provide for the lowest density of urban residential land use plus schools, churches and other similar uses. "Office Location Guidelines" contained in the "Comprehensive Plan" state that office uses should: generally be located adjacent to arterial streets; local, service-oriented offices should be incorporated within or adjacent to neighborhood and community scale commercial development and low-density office use can serve as a transitional land use between residential uses and higher intensity uses. This application is not consistent with plan recommendations for office uses since this location is surrounded by residential or agricultural uses and is located at mid-mile. 5. Impact of the proposed development on community facilities: Because of the relationship between the curve of Central and this site, traffic should be minimized at this location to avoid further potential for accidents. The proposed use limited to the garage conversion will increase the daily trips from 10 to 20 to 30. If the residence is remodeled or redeveloped to 4,000 square feet of office use, it would generate 50 to 80 daily trips. MILLER "This is a request for 'GO' General Office zoning with a Conditional Use to permit animal care limited for the purpose of having a small animal veterinary clinic. As you can see on the map, the application area is located just north of Central and 135th. Central runs along here (indicating) makes the 'S' curve and then goes back over to 119th Street. This is part of the Rainbow Lakes area. The application area is approximately an acre and a half in size. As you can see from this 1997 aerial, there are a number of single-family homes that are developed in the Rainbow Lakes Additions there. The land to the north, as best I could tell is used for farm ground. It looked like there were cows being pastured. What the applicant proposes to do is to convert the garage into the small animal clinic. There is a site plan attached to your staff report that depicts how that would work. Upon our inspection of the site, it appears to be the way the property is pretty much laid out today. There is a driveway that comes north off of Central, just as you get past the 'S' curve and then they are showing parking to the east of the garage area in that site plan. (Indicating) This is a look at the application area. This is the home that is shown on the site plan; this is the garage area that would be converted. We pulled into the driveway here as this 'S' curve goes through. That is what people see as they come down Central to the west and then make that curve. The applicant has indicated that in his current practice, he sees between 10 and 20 clients on a typical day. His hours of operation are 7:30 a.m. to 5:30 p.m. The surrounding area is zoned either 'SF-6' Single-Family residential or 'SF-20' Single-Family. The Code first permits 'animal care, limited' in the 'GO' General Office district with a Conditional Use and is subject to 3 conditions. Those are that the noise and odor cannot be discernable at the property line; that the practice has to be limited to dogs, cats and other small animals; and any animals that are harbored on site have to be harbored inside. So you can't have any outdoor kennels. The 'GO' district permits a 32 square foot sign and the applicant has indicated that if this were to be approved, he doesn't think he needs much more than a couple of square feet. Central is scheduled to be improved to a four-lane street in 2008. There isn't any municipal sewer or water service out there today. Water is scheduled to be available in 2006. The office location guidelines contained in the Comprehensive Plan indicate that offices should generally be located adjacent to arterial streets and that local service oriented offices should be incorporated within or adjacent to neighborhood and community scale commercial development and low density office use can serve as a transitional land use between residential uses and higher intensity uses. The Planning staff is recommending denial for this request, primarily because this is a mid-mile location. It is surrounded on three sides by existing single-family homes and to the north is an agricultural use. This did go to the DAB board on Monday night and there were at least three homeowners' associations that were represented there and they are all in opposition to the request. The DAB did recommend denial for the request. However, if you think it is an appropriate use, there are some conditions contained on Pages 3 and 4 under 'a' through 'f' that we would recommend be attached to the Conditional Use. With that, I would try to answer any questions." OSBORNE-HOWES "How will the re-do of Central affect this? I can't remember what is going to happen there." MILLER "They are going to four-lane it. The last word that we had was that the 'S' curve was not going to be modified. I don't know whether that will be by the time they actually get ready to do it, because it has not been designed. I think design is set for 2003 or 2004. The folks I talked to in Public Works said that at this point they didn't think that was going to be modified." OSBORNE-HOWES "Is he currently operating? Is that why you said that he is seeing 10 to 20 clients per day?" MILLER "He has a clinic at another location." OSBORNE-HOWES "Oh, okay." JOHNSON "Dale, here a while back we had a case, if I remember right at Central and 135th. What is the status of all of that zoning in that area now?" MILLER "The Dugan property over here (indicating), that one has been approved and has been platted and is in the process. (Indicating again) this one was for Neighborhood Office if I remember right, and I think they just got a platting extension because the husband died, so it is in process and has not been completed yet." JOHNSON "And then across the north of Central on the west side, was there one there, too?" MILLER "No, they are going to re-align this (indicating) so it comes around." JOHNSON "I know at the time there was a lot of concern about that whole area east of 135th with drainage and flooding and we saw lots of pictures from that neighbor. Do you remember? It seems like there was even water around this residence?" MILLER "Well, of course, the pond where Dry Creek runs right through here (indicating) and that is what has been backed up to create that pond. I haven't actually seen the revised FEMA maps but it is my understanding that they have revised this area, so I am sure that the floodway in there is probably larger than what it was originally." WARREN "As we moved west on Central and modified Central so that it eventually ties back into now unimproved Central, didn't that little piece we created become 'LC' though?" MILLER (Indicating) "This part is 'LC'. It is part of Dugan's project." WARREN "The one right across the street from it is 'GO' subject to platting, right?" MILLER "I think it is 'NO' Neighborhood Office. I think they asked for 'LC' and they got bumped down to 'NO' if I remember right." WARREN "Okay. But if the zoning has been approved, it is subject to some platting." MILLER "Right. Once the plat is done, then the zoning would be effective." COULTER "In Part A, you mentioned about changing the drive location. Where would you propose a better location to be?" MILLER "I did talk with the Traffic Engineer late yesterday and because of the way this curve is, there have been at least three instances where people have not been able to traverse the curve and have come off and either landed on his property or maybe even into his house. So we thought that the location of this driveway here might not be the best location given the geometry there. But according to the Acting Traffic Engineer, he says that is the best place for it, given the locations. So we would not be asking for that to be moved, at least under the current Traffic Engineer." MICHAELIS "Are there any further questions of staff? Thank you, Mr. Miller. May we hear from the applicant, please?" DEAN LOESCH "I am a veterinarian here in town. I have a practice at 13th and Meridian, which I am in the process of selling due to heart surgery, etc., a couple of years ago, I plan on semi retiring. That is the reason I want to operate a small animal clinic out of my home on a limited basis type situation. I understand the need to isolate a business from the local residences, etc. I think, as you can tell by the pictures there, and I have some pictures here if you would like for me to pass them around, that do a better job of showing how well my property is isolated from the surrounding neighborhood. There is a dairy farm; he uses that for his dry cows and there is a bog hole down there that washes into the Cowskin Creek that creates quite a bit of odor and it is undesirable to look at. But I have lived with it for 17 years because he was there before I was. I have no complaints with it. But it doesn't make it real good for the rest of the neighborhood necessarily. I am isolated from the neighborhood to the east and to the south by Central and also by a grove of trees. I took some pictures off of the top of my house today, pointing all four directions from my house. Even now, with all of the leaves off of the trees, it is very hard to see any other residence. The closest residence to my house is about 350 feet. Central is definitely an arterial, and like they said, they are going to be enlarging it to four lanes. It was my understanding, the last time I talked to them was that when they do that, Central is going to stay the 'S' curve, and the road will be moved to the south rather than to the north. Not moved, but the other two additional lanes will go on the south side of the road, rather than on the north side of the road. But, of course, that is subject to change. I am isolated from the neighbor to the west of me. That is the one that has the best shot of my house. He has the best shot of the best side of my house, which has quite a bit of landscaping and stuff done to it, but we are isolated from him by a pond as well as trees. Like you said, there is Neighborhood Office and Light Commercial right down the street on 135th Street. Due to my ignorance, back in 1983, I operated a small animal clinic mobile practice out of my home. I had between 3 and 7 clients coming twice a day, morning and evening to my home and I made house calls during the day. At that time, I was in the County and was unaware of the fact that I needed to have County zoning to run a business out of my home, but I did it for 10 years due to my ignorance and the ignorance on the part of the officials that would have shut me down. They didn't know I was doing it, I guess. None of my neighbors complained, several of them used my facilities that had pets. That is all I have to say." MICHAELIS "Are there any questions of the applicant?" MCKAY "Sir, will you have outside runs or storage or anything?" LOESCH "No. Not at all. My understanding is that I can't have those at my present facility at 13th and Meridian and those are illegal anyplace in the city limits, regardless of the zoning." MICHAELIS "Are there any further questions? Thank you, sir. Is there anyone else in the audience wishing to speak in favor of this item? In opposition? Seeing none, we will bring it back to the Commission." OSBORNE-HOWES "I have a question. A veterinarian cannot do anything out of his or her home?" KROUT "It is specifically listed as a home occupation, but it is not permitted in a residential district." WARREN "Well, I went out and looked at the property, too, and I would have to think that I don't see this use that he is asking for as being any more intense than a home occupation, say of a hairdresser, and I am sure that we would allow that. If he is going to use it as kind of a semi-retired type business, I surely have no opposition to it. I think it is a reasonable use of that land." PLATT "I have a lot of problems with this case. To begin with, it violates the whole concept of trying to put commercial activity in the middle of what we have set up as the mile intersections, where it belongs. Once you start one, then the next one comes in, and the next one, and as the DAB folks say, 'there goes the neighborhood'. With the residents completely opposed to it, it seems to me that we are violating a very, very fundamental land-use principal if we should support this. Secondly, I am very, very nervous about having a clinic in an area not served by water and sewer. It seems to me that would raise some problems. I don't think I am going to support this." OSBORNE-HOWES "I am familiar with that, but I still drove by it again and looked at it. I don't believe I will support it either, although I certainly understand why someone in a semi-retirement situation would want to have something like this out of their home. I have sympathy for that, and I thought about it, but you really will have commercial activity moving all the way through there. I know all of the long discussions we have had with neighborhoods about wanting to limit the commercial activity, even at the intersection. This really isn't at an intersection, it is halfway through and it will strip that out, and for that reason alone. And I also wondered why there was a need to have 'GO' for the entire lot if he was just going to use part of it." JOHNSON "If this thing is approved, would there be parking requirements by Central Inspection, or would this just end here?" KROUT "There is a parking requirement. I don't think they striped it out in their site plan, but by the Conditional Use, if he uses it for a clinic, it would be limited to 1,000 square feet and I think the parking requirement a minimum of four spaces. Because it would have a base zoning of 'GO', he would have the ability to convert any amount of the house to office use and then for every 250 square feet of office, he will have to provide one parking space." WARREN "I have a little trouble when we talk about commercial and then we talk about 'GO'. I have a little trouble relating to those two. One is a lot harsher than the other. The other thing is, do I understand, Marvin, that this would be applicable, maybe to a Protective Overlay, which if we would give him this 'GO', subject to a Protective Overlay that would limit his use of that to this specific use?" KROUT "Yes, you could. That is an option for the Commission. You could either limit it to this use or you could limit it to 1,000 square feet for any use that is permitted in General Office. I guess I would just caution the Commission that not every case ought to become a Protective Overlay or we are going to create an administrative nightmare for the zoning enforcement people when every tract of land has its own conditions." WARREN "Except that if that is the difference between the man being able to use this land as he would like or not, why then…..I don't think he has any intent to do anything with that land, from what I can see, than for what he is requesting. So if we could accommodate that need with a Protective Overlay, I certainly wouldn't have any problem with it." MARNELL "This one bothers me as well, because that is sitting right square in the middle of a residential area. This isn't adjacent or a quarter of a mile away. If it ends up being zoned General Office, it is zoned General Office. I don't think I can be in favor of it." MICHAELIS "I think I would echo that sentiment. A lot is based on Dr. Platt's comments, but this is a tough deal. I am also like Ms. Osborne-Howes. I have sympathy for the individual that wants to do it and everything else, but it is just probably not a good location for it. Are there any other comments?" MCKAY "I have a question. This couldn't be left the same zoning it is and give a Conditional Use?" KROUT "No. We don't specify Conditional Uses in residential districts and we don't have one for a Vet Clinic in residential." MCKAY "And it doesn't qualify under home occupation?" KROUT "Right, it doesn't qualify as a home occupation." HENTZEN "It doesn't? Why?" KROUT "There is a list of prohibited uses. If you like, I could read them to you. There are about 8 or 10 uses. Office-type uses are permitted as home occupations, and if you think that maybe a Vet Clinic ought to be one that ought to be permitted, then I think you could revisit it at some point in the Zoning Code, but there is a list of uses that are specifically not permitted in the residential districts and they include animal care, auto and other vehicle repair, funeral homes, kennels and stables, medical and dental clinics or hospitals, renting of trailers, cars or equipment, restaurants, tattooing and body piercing, which we talked about at one time as a home occupation; tourist homes and contractor's storage. Some of those uses are permitted in rural areas where we have larger lots, but not in the urban 'SF-6' zone." MICHAELIS "Are there any further comments? I would entertain a motion." MOTION: Having considered the factors as contained in Policy Statement No. 10; taking into consideration the zoning, uses and character of the neighborhood; the suitability of the subject property for the uses to which it has been restricted; the extent to which removal of the restrictions will detrimentally affect nearby property; conformance of the requested change to the adopted or recognized plans and policies; and impact of the proposed development on community facilities; I move that we recommend to the governing body that this application be denied. OSBORNE-HOWES moved, GAROFALO seconded the motion, and it carried with 12 votes in favor. Warren opposed. ------------------------------------------------------------ 6. Case No. ZON2001-00014 – Sedgwick County Zone Change from "LC" Limited Commercial and "SF-20" Single-Family Residential to "LC" Limited Commercial and "OW" Office Warehouse for a construction yard. Generally located north of Pawnee approximately 1/8 mile east of Webb Road. MICHAELIS "We need to defer this case. Is there anyone here in the audience wishing to speak on this item?" MOTION: That the item be deferred until the May 10 meeting. JOHNSON moved, LOPEZ seconded the motion, and it carried unanimously (14-0). -------------------------------------------------------------- 7a. Case No. ZON2001-00008 – Sun Chancellor, L.P., dba Claremont Companies (owner); Robert W. Kaplan (agent) request zone change from "MF-18" Multi-Family to "LC" Limited Commercial; and 7b. Case No. CUP2001-00004 DP- 62 Amendment #7 – Sun Chancellor, L.P., dba Claremont Companies request an amendment to DP-62 Chelsea Station C.U.P. to create Parcel 13 for commercial use on property described as: ZON2001-00008 That part of Lot 3, Block 1, E.E. Jabes Addition to Wichita, Sedgwick County, Kansas described as follows: Beginning at the Northeast corner of said Lot 3; thence South 00 degrees 33'13" East along the East line of said Lot 3, 820.00 feet to the Southeast corner of said Lot 3; thence South 89 degrees 26'47" West along the South line of said Lot 3, 250.00 feet to the P.C. of a curve to the right in said South line; thence Westerly along said curve, having a central angle of 18 degrees 25'33" and a radius of 350.53 feet, an arc distance of 112.73 feet, (having a chord length of 112.24 feet bearing North 81 degrees 20'26" West), to the P.C. of a curve to the left; thence Northerly along said curve, having a central angle of 27 degrees 55'39" and a radius of 340.00 feet, an arc distance of 165.73 feet, (having a chord length of 164.09 feet bearing North 13 degrees 38'43" East), to the P.T. of said curve; thence North 00 degrees 19'07" West, 93.98 feet; thence North 89 degrees 40'53" East, 2.71 feet; thence North 00 degrees 52'58" West, 74.81 feet; thence North 01 degree 08'58" East, 22.27 feet to a corner of a 20 foot water easement (Film 374, Page 1195); thence North 00 degrees 00'15" East along the West line of said 20 foot water easement, 265.00 feet to a corner of said 20 foot water easement; thence South 89 degrees 59'45" East along the North line of said 20 foot water easement, 13.75 feet; thence North 00 degrees 15'48" West, 187.07 feet to a point on the North line of said Lot 3; thence North 89 degrees 26'47" East along the North line of said Lot 3, 299.94 feet to the point of beginning. CUP2001-00004 Lot 3, Block 1, E.E. Jabes Addition to Wichita, Sedgwick County, Kansas. Generally located on the northwest corner of Rockhill and Rock Road. DONNA GOLTRY, Planning staff, pointed out land use and zoning; and showed slides of the general area. She reviewed the following staff report presented at the MAPC meeting held February 22, 2001, and the memo dated April 5, 2001. BACKGROUND: The applicant is requesting that Parcel 9 be divided into two parcels. Parcel 13, the new parcel, would be 5.96 acres in size and be located along the west side of Rock Road, north of Rockhill. It would be zoned "LC" Limited Commercial. The remainder of Parcel 9, which is 7.34 acres, would keep its current zoning classification of "MF-18" Multi-Family. Also, the applicant is requesting that a second point of access be allowed on the northern edge of the tract along Rock Road. Currently, Parcel 9 is developed with Sundance Apartments. The applicant proposes to raze the clubhouse and the ten apartment buildings nearest to Rock Road. The property would be redeveloped with the following commercial uses: retail, general; restaurants, excluding drive-in and drive-through; banks or financial institutions; ATM; offices; medical services; personal care services; and personal improvement services. Maximum gross floor area would be 31,167 square feet (12 %), with a maximum of four buildings and a maximum building height of 35 feet. DP-62 is part of a large Residential and Non-Residential Community Unit Plan begun in the 1970s. Total size of the C.U.P. is 160 acres. It is a mixed-use development with uses ranging from single-family residential to the shopping center located at the intersection of 21st Street North and Rock Road. The shopping center is now anchored by Best Buy, but includes a site for a discount store, small retail and service businesses, and two restaurant pad sites. The C.U.P. has another apartment complex along 21st Street North, as well as a day care and offices. There are also offices along Rock Road south of Rockhill. Rockhill/Broadmoor serves as the collector through the C.U.P. The residential uses south and west of Rockhill/Broadmoor include duplexes, single-family residences and townhouses. The property to the east of Rock Road is developed with three restaurants and the Bradley Fair Shopping Center. CASE HISTORY: The application area is platted as Lot 3, Block 1 of E.E. Jabes Addition, recorded June 5, 1974. The C.U.P. was originally approved in January 29, 1974. An administrative adjustment was approved on January 25, 1979, to increase the combined number of dwelling units permitted on Parcels 8 and 9 from 491 to 495 dwelling units. As a condition of this administrative adjustment, the two parcels were tied together as a unit and the developer guaranteed to keep the seven acres on the northern half of Parcel 9 (Lot 4, Block 1, E.E. Jabes Addition) as open space for recreational purposes of the apartments and other residential uses nearby (Restrictive Covenant dated April 29, 1979, inuring to the benefit of the City of Wichita and remaining in full force and effect until April 25, 2004). ADJACENT ZONING AND LAND USE: NORTH: "LC" Limited Commercial Shopping Center, restaurants EAST: "LC" Limited Commercial Bradley Fair Shopping Center, restaurants SOUTH: "GO" General Office Offices WEST: "MF-18 Multi-Family Apartments, townhouses, duplexes, single-family PUBLIC SERVICES: The site has access directly onto Rockhill, where there is a signalized intersection with Rock Road, and is allowed one point of access onto Rock Road. This access point is located near the center of the parcel's frontage on Rock. The applicant has asked for a second point of access near the northern edge of the property. This segment of Rock Road has one of the highest levels of traffic of any arterial street in Wichita. Average daily traffic in 1997 was 28,709 vehicles per day. This is projected to increase to 37,948 by 2030. A traffic study ("Bradley Fair Shopping Center Traffic Impact Study, Wichita, Kansas," HWS Consulting Group Inc., February 3, 1999) identified improvements on Rock to handle the large traffic volumes. One of these improvements is to put a raised median with lengthened storage for left-turns from Rock to Bradley Fair Parkway. When this raised median is installed the existing entrance to Parcel 13 would become right-in/right-out only. The requested second point of access also interferes with the storage lane for the left turns. CONFORMANCE TO PLANS/POLICIES: The Wichita Land Use Guide to the 1999 Update to the Wichita-Sedgwick County Comprehensive Plan shows this area for high-density residential use. RECOMMENDATION: High-density residential uses generate significantly lower volumes of traffic than commercial activities. The apartments generate about 1000 trips per day. If the application were developed with a quality restaurant, a high-turnover restaurant, some general retail, and a bank, the estimated traffic would be three times the rate generated by the apartments. While the change may seem to be relatively minor with respect to the amount of commercial development already located along the North Rock Road corridor, it could compromise the effectiveness of the public improvements slated for Rock Road. This would worsen the situation on North Rock Road, and be contrary to the efforts underway as a result of the HWS traffic study to alleviate traffic congestion. These improvements involve eliminating several left-turn movements in order to move traffic on North Rock Road without as many points of conflict. Further, any additional opening is moving in the opposite direction of improving traffic flow on Rock Road. The applicant has not provided an update to the HWS traffic study or suggested any additional traffic improvements to compensate for the diminished level of service that could result from this intensification of development. The applicant has indicated that they intend to replace the apartments removed along North Rock Road with more apartments on the northern portion of Parcel 8 along Broadmoor. Yet this is the area governed by the Restrictive Covenant that tied development of the two parcels together as a single development and pledged not to convert the seven acres of open space into apartment use. Staff feels apartment development using this seven-acre area is contrary to the approved C.U.P. and should not be allowed unless the C.U.P. is amended to specifically permit this change. To date, the applicant has not filed a request to amend the C.U.P. in this manner. Further, should the C.U.P. be amended and the commercial development also be permitted, this would simply add more traffic in the vicinity along North Rock Road and 21st Street North. Based on these conditions, plus the information available prior to the public hearing, Staff recommends the request be DENIED. However, should MAPC choose to approve the request, Staff would recommend approval be subject to the following conditions: A. APPROVE the zone change (ZON2001-00008) to "LC" Limited Commercial, B. APPROVE the Community Unit Plan Amendment #7 (DP-62), subject to the following conditions: 1. Access on North Rock Road shall remain as one point of access only, as shown on the C.U.P. and the subdivision plat. This point of access would become right-in/right-out upon completion of the scheduled improvements to North Rock Road. 2. Complete access control shall be provided on Rockhill for 250 feet from the intersection with Rock in order to allow storage length at the traffic signal. 3. Additional right-of-way shall be dedicated along Rockhill to allow additional lanes and to match with lanes opposite the intersection on Bradley Fair Parkway. 4. The traffic signal at Rock and Bradley Fair/Rockhill shall be upgraded to provide for left-turn phasing. 5. No apartment units shall be constructed on the northern seven acres of Parcel 8 unless the request is filed and approved for such amendment to the C.U.P. 6. General Provision #1 shall be revised to reflect conversion of Parcel 13 from a residential to a commercial parcel. 7. General Provision #7A shall be revised to require a six (6) to eight (8) foot solid or semi-solid wall constructed of stone, masonry, architectural tile or other similar material (excluding wood or woven wire) on the west property line of Parcel 13. 8. General Provision #7E shall be added to require that landscaping on Parcel 13 be provided per the Landscape Ordinance. 9. General Provision #8 shall be revised to add Parcel 13. 10. General Provision #10 shall be revised to add: For Parcel 13, all freestanding signs on Rock Road and Rockhill shall be monument type with a maximum height of 20 feet, and shall be spaced a minimum of 150 feet apart regardless of leasing or ownership of the parcel. No sign shall exceed 150 feet in size. No flashing or moving signs shall be permitted. No portable or off-site signs shall be permitted. 11. Add a general provision to state that trash receptacles and roof-top equipment shall be screened to reasonably hide them from ground level view, with screening being constructed of materials and/or landscaping compatible with and complementary to the exterior of the buildings to which they provide service. Loading docks and service areas shall also be screened from Rock Road, Rockhill and the residential areas to the west with screening walls and/or landscaping approved by the Planning Director. 12. Add a general provision to state that a plan for a pedestrian walk system shall be a requirement of the C.U.P. The walk system shall link proposed buildings with the sidewalks along Rock Road and Rockhill. 13. Add a general provision to state that all buildings in Parcel 13 shall have similar materials, color, and texture. Metal shall not be used as a predominate exterior building material on any facade. 14. The development of this property shall proceed in accordance with the development plan as recommended for approval by the Planning Commission and approved by the Governing Body, and any substantial deviation of the plan, as determined by the Zoning Administrator and the Director of Planning, shall constitute a violation of the building permit authorizing construction of the proposed development. 15. Any major changes in this development plan shall be submitted to the Planning Commission and to the Governing Body for their consideration. 16. The transfer of title of all or any portion of the land included within the Community Unit Plan does not constitute a termination of the plan or any portion thereof, but said plan shall run with the land for commercial development and be binding upon the present owners, their successors and assigns, unless amended. 17. The applicant shall submit 4 revised copies of the C.U.P. to the Metropolitan Area Planning Department within 60 days after approval of this case by the Governing Body, or the request shall be considered denied and closed. This recommendation is based on the following findings: 1. The zoning, uses and character of the neighborhood: Commercial uses on property zoned "LC" Limited Commercial are located to the north and east of Parcel 13. Office uses are located on the "GO" General Office tracts to the south. The properties to the west are zoned "MF-18" and developed with a variety of residential uses, including single-family, duplex, townhouses, and apartments. 2. The suitability of the subject property for the uses to which it has been restricted: The site is already in use as the Sundance Apartments and could continue to be used in this manner. 3. Extent to which removal of the restrictions will detrimentally affect nearby property: The conversion of the property from apartments to commercial uses would generate more traffic and would deteriorate the level of service on North Rock Road. If left-turn movements in and out of Parcel 13 to Rock Road are allowed, it will jeopardize the planned improvements by conflicting with left-turn storage for the signalized intersection at Rock and Bradley Fair/Rockhill. 4. Conformance of the requested change to the adopted or recognized Comprehensive Plan and Policies: Commercial use is not in conformance with the Comprehensive Plan, although the properties to the north and east are shown for commercial use. 5. Impact of the proposed development on community facilities: The conversion from apartments to commercial use will add significant traffic to Rock Road and 21st Street North, and contribute to a detrimental impact on the level of service for Rock Road. GOLTRY "This case was heard on February 22. It is the case to convert 10 units of apartments on Rock Road that are now the "Sundance Apartments" into retail types of uses, asking for 'LC' Limited Commercial zoning. If you recall the hearing we had six weeks ago, the issues circled around whether or not the addition of this 31,000 square feet of additional retail space would cause detrimental impacts on the flow of traffic along Rock Road, particularly in view of the fact that the city is expending a lot of funds for additional improvements, and whether this would be an appropriate land use. I believe I have placed, at your table today, a memo that is the result of our transportation staff analysis of the traffic impacts on Rock Road. I am going to ask Jamsheed Mehta, and James Johnson to present some results on a simulation that will demonstrate that once we looked at the traffic impacts, it does look as if Rock Road can accommodate the additional traffic that would be generated from this land use. So staff is now recommending approval, subject to replatting; and approval of the CUP amendment, subject to revised transportation improvements that would be compatible with ensuring this adequate traffic flow. The remaining conditions that are contained on your memo on Pages 2 through 4 are the same conditions as were presented in the original staff report on February 22. The findings are revised to reflect a recommendation for approval, based on the re-analysis of the traffic flow. At this point, I will turn it over to Jamsheed. James Johnson and Jamsheed Mehta from Planning Staff presented a computer simulation of the effect of traffic on Rock Road from Rockhill to 21st Street. Three time periods were analyzed and presented. The first scenario used existing conditions (present geometry and existing land use). The second scenario reflected improvements on Rock Road as approved by the City Council and also reflected a change in the land use (as proposed) from multi- family apartments to mixed retail/commercial. The period reflected in this scenario was assumed to be 2002-2003. The third and final scenario used projected traffic reflecting the year 2030 with fully utilized land uses along the study corridor. The main objectives of the analysis are (1) to see if left turns into the proposed property can be safely accommodated; (2) the best location for a private driveway, if one were allowed; and (3) what will the impact of the change in land use, and therefore the trip generating characteristics of the proposed land use, have on the street system. Assuming that the majority of northbound traffic into the proposed site will be arriving from the south, and will use the existing signalized intersection at Rockhill/Bradley Fair Parkway, therefore, there will be some gaps in traffic if low volumes are assumed for the northbound left turn into the site at a location across from the "Outback-Eddie Bauer" entrance. This location was deemed to be relatively safer on Rock Road and further away from the Rockhill intersection so that back-up queues from the signalized intersection are not impacted. Left turn movements out of the site are not recommended as it would be unsafe and as it would lower the expectations of the City's access management and traffic flow improvements plans on this stretch of Rock Road. The impact of this change in land use at the 21st and Rock Road interchange is minimal assuming that the total floor area in this proposal is about 32,000 square feet. Obviously, if the number of apartments lost due to this change in land use were subsequently replaced later, then a separate study would be required to compute the impact. The analysis provide specific transportation related recommendations: 1. One point of access will be allowed on Rock Road, and will be located near the north property line and across from an existing driveway. 2. The existing driveway serving the apartment complex will be removed. 3. A left-turn storage lane shall be installed in the center median on Rock Road with a 150-foot storage length to allow northbound left turn movements into the proposed site. 4. A standard acceleration/deceleration lane shall be provided to the Rock Road driveway. 5. As per City of Wichita regulations, the median opening may be closed at any point in time if the traffic conditions so warrant. 6. The main entrance to the site will be from Rockhill Road, through a driveway that will be located approximately 250 feet west from the Rock Road intersection. 7. If the applicant desires to locate an additional driveway closer to the signalized intersection, then that driveway will serve the right-turn-in only movement, and a raised center median will need to be installed back from the Rock Road intersection to ensure that there are no left turns permitted. A deceleration lane should serve such a driveway from Rock Road, and this lane should be terminated at the driveway. 8. Additional right-of-way shall be dedicated along Rockhill Road to allow the additional lane and the raised center median, and these lanes will match the lanes opposite the intersection on Bradley Fair parkway 9. The traffic signal at Rock and Rockhill shall need to be upgraded to accommodate the geometric changes. 10. A left-turn storage lane of 150 feet (plus taper) shall be installed on Rockhill Road for eastbound-left turn movements at the signalized intersection. MICHAELIS "Are there any questions of Jamsheed?" PLATT "Show me where the raised medials are going to be on Rock Road. Are you going to require the raised medials on Rock Road?" MEHTA "No. The proposed City Council approved plans—whatever you see in red on the screen is the new feature added to the configuration, so beginning from here (indicating), this is a very short left-turn lane. It is going to be elongated, so they have to extend that median all the way to come up in line with the existing median. So you will have a median all the way from Bradley Fair and Rock Hill Road to what I am calling the Outback entrance. In order to accommodate a left turn this way (indicating), you will have to cut a part of that median and provide storage lanes over there, about 150 feet deep. Over here (indicating), there are some other median breaks, but what they are going to do is elongate this storage length all the way down. When they do that, they are getting into the storage for this northbound-left movement, which is in conflict with movement, turning east into Bradley Fair. In order to accommodate that left turn, we will have to stop that movement from happening or any of the other left turns in and out of these sites. Leaving only one left turn movement, the only one to serve what is Best Buy and used to be ShopKo and some of the others over there. If you didn't allow them any left turns, they don't have any other way of getting in there because you have another problem over here (indicating) This left turn lane, this opening would be blocked by dual left-turns going all the way far back. That would be an only exception. The original plan of the City of Wichita Public Works and their engineers was not to allow for that opening either for Dillon's and MacDonald's, but that was not eventually approved. WARREN "Jamsheed, as I understand, you are recommending approval, subject to certain conditions that you have outlined here. Those conditions would be that the Best Buy entrance would be then a full functional intersection for this application?" MEHTA "No. Not Best Buy. The one that we are calling Sundance or Outback is the one. (Indicating) This is Best Buy and this is Sundance." WARREN "I thought you were closing Sundance, though, for them." MEHTA "Sundance would have not a full-movement intersection." WARREN "But Sundance is there now, in this location, isn't it?" MEHTA (Indicating) "This leg is not. It is at the intersection. It is going to be blocked by this long median. The only other opportunity to have a full movement intersection is allowing for right-ins, right-outs, left-ins, no left- outs." WARREN "Okay, what about the other side of the street. Would they be doing the same thing, then?" MEHTA "They have a left-in and a left-out today. By the time this is all done, that left-out movement will be restricted." WARREN "Uh huh. And then clear down at the south end on Rock Hill, then you are saying a complete access control back to what, 250 foot?" MEHTA "The initial recommendation to you from a month ago was no openings to 250 feet back, so you are replicating what is on the Bradley Fair Parkway side, which is you go back to 250 feet and you get your opening. Anything in between, there are some exceptions where you can have a right-in, right-out. In this case, they were seeking to find a right-in movement at 100 feet and you look to that. If it is a right-in only and if it is protected by a median across, then we are okay." WARREN "And then their next opening would be on west?" JAMSHEED "Further west at 250 feet back from Rock Road." WARREN "And that would give them a right-in, left-out?" JAMSHEED "That will give them all movements." BARFIELD "So, the traffic, in order to make a left turn over into Bradley Fair would have to go all of the way down, you are saying, to Rock Hill?" MEHTA "Northbound, making a left turn, goes into Bradley Fair. At Rock Hill over here and Bradley Fair Parkway on the other side. The same street, yes." BARFIELD "But there is none between Rock Hill and 21st Street?" MEHTA "Entrances do you mean?" BARFIELD "Right." MEHTA "There are quite a few." BARFIELD "For a left turn, southbound." MEHTA "Into Bradley Fair, left turns will be restricted, that is correct. Right now, they can make lefts here (indicating), here, here and they can make lefts at the signalized intersection of Bradley Fair. In the future, they cannot make one here; this is open for now, and the left-in stays, but the left-out will be restricted and the next one is a left-in and left-out at this location." BARFIELD "I thought I understood you to say that there would not be any left turns in between 21st and Rock Road." MEHTA "This would allow it. Left ins would still be allowed." COULTER "So at the Sundance entrance that you propose, those and some of the others would still not be signaled, they would just be a stop sign?" MEHTA "Yes, they would be driveway entrances off of Rock Road so the stop sign is on the driveway side and Rock Road continues as it is." OSBORNE-HOWES "Are these recommendations just based on the application, or are these in the works anyway?" MEHTA "Our recommendations take into consideration the geometry as approved by the City Council and what they are planning on doing in the next year, and the applicants 31,000 square application for commercial in place where there are 160 dwelling units." OSBORNE-HOWES "But if that application isn't approved, then you would not be supporting those?" MEHTA "If they make something more intense than what would be coming out of those 31,000 square feet, then it would change somewhat. All of this is predicated on a lot of assumptions. We are assuming the minor movement being at that left turn, turning into their entrance." OSBORNE-HOWES "I am just trying to get this straight. If we approve this application today, this means that, based on your recommendations, that means because of this new application we would have some changes made to getting into Bradley Fair?" MEHTA "No. Bradley Fair. The improvements on Rock Road are happening anyway. Our recommendations aren't affecting that. I guess we showed you a lot more than was needed." OSBORNE-HOWES "That's okay. I just wanted to get clear on that." MICHAELIS "Are there any other questions? Thank you, Jamsheed. Can we hear from the applicant?" BOB KAPLAN "I am representing the applicant. We accept those conditions. This is one of those cases where the granting of deferrals worked to everyone's advantage and Mr. Krout's staff was extremely cooperative and generous with their time. We had many, many meetings with staff and with my consultants, and we have come to an accommodation on all of this." MICHAELIS "Are there any questions of the applicant? Okay. Is there anyone else in the audience wishing to speak in favor of this item? In opposition to? Seeing none, I will bring it back to the Commission." MOTION: Having considered the factors as contained in Policy Statement No. 10; taking into consideration the staff findings (The zoning, uses and character of the neighborhood: Commercial uses on property zoned "LC" Limited Commercial are located to the north and east of Parcel 13. Office uses are located on the "GO" General Office tracts to the south. The properties to the west are zoned "MF-18" and developed with a variety of residential uses, including single-family, duplex, townhouses, and apartments. The suitability of the subject property for the uses to which it has been restricted: The site is already in use as the Sundance Apartments and could continue to be used in this manner. Extent to which removal of the restrictions will detrimentally affect nearby property: The conversion of the property from apartments to commercial uses would generate more traffic but does not seem to deteriorate the level of service on North Rock Road. If left-turn movements in and out of Parcel 13 to Rock Road are allowed, it does not significantly impact the planned transportation improvements along at Rock Road. Conformance of the requested change to the adopted or recognized Comprehensive Plan and Policies: Commercial use is not in conformance with the Comprehensive Plan, although the properties to the north and east are shown for commercial use. Impact of the proposed development on community facilities: The conversion from apartments to commercial use will add traffic to Rock Road and 21st Street North. That the request be approved, subject to the following: A. APPROVE the zone change (ZON2001-00008) to "LC" Limited Commercial subject to replatting. B. APPROVE the Community Unit Plan Amendment #7 (DP-62), subject to the following conditions: 1. The applicant shall guarantee the following improvements on Rock Road: a) Access on North Rock Road shall be limited to one point of access directly across from the opening between Lots 5 and 6 on Bradley Fair Addition. b) The existing opening into the proposed Parcel 13 (existing Parcel 8) shall be closed. c) In order to allow the northbound left-turn entrance into Parcel 13, a storage lane of 150 feet plus the taper shall be provided. d) Standard accel/decel lanes shall be provided to the opening. e) As per the existing City of Wichita regulations, a medial closure can be done at any point in time if traffic conditions so warrant. 2. The applicant shall guarantee the following improvements on Rockhill: a) In the event the developer desires an opening closer to the intersection than 250 feet, a continuous decel lane from Rock Road to the first opening, with a taper on the west side of the opening shall be provided. b) A raised median on Rockhill Road extending from Rock Road shall provided to restrict left turns across from any opening within 250 feet of the intersection. c) A storage lane of 150 feet plus taper on Rockhill shall be provided for eastbound left turns. 3. Additional right-of-way shall be dedicated along Rockhill to allow additional lane/medials and to match with lanes opposite the intersection on Bradley Fair Parkway. 4. The applicant shall guarantee to upgrade the traffic signal and related improvements at Rock and Bradley Fair/Rockhill. 5. No apartment units shall be constructed on the northern seven acres of Parcel 8 unless the request is filed and approved for such amendment to the C.U.P. 6. General Provision #1 shall be revised to reflect conversion of Parcel 13 from a residential to a commercial parcel. 7. General Provision #7A shall be revised to require a six (6) to eight (8) foot solid or semi-solid wall constructed of stone, masonry, architectural tile or other similar material (excluding wood or woven wire) on the west property line of Parcel 13. 8. General Provision #7E shall be added to require that landscaping on Parcel 13 be provided per the Landscape Ordinance. 9. General Provision #8 shall be revised to add Parcel 13. 10. General Provision #10 shall be revised to add: For Parcel 13, all freestanding signs on Rock Road and Rockhill shall be monument type with a maximum height of 20 feet, and shall be spaced a minimum of 150 feet apart regardless of leasing or ownership of the parcel. No sign shall exceed 150 feet in size. No flashing or moving signs shall be permitted. No portable or off-site signs shall be permitted. 11. Add a general provision to state that trash receptacles and roof-top equipment shall be screened to reasonably hide them from ground level view, with screening being constructed of materials and/or landscaping compatible with and complementary to the exterior of the buildings to which they provide service. Loading docks and service areas shall also be screened from Rock Road, Rockhill and the residential areas to the west with screening walls and/or landscaping approved by the Planning Director. 12. Add a general provision to state that a plan for a pedestrian walk system shall be a requirement of the C.U.P. The walk system shall link proposed buildings with the sidewalks along Rock Road and Rockhill. 13. Add a general provision to state that all buildings in Parcel 13 shall have similar materials, color, and texture. Metal shall not be used as a predominate exterior building material on any facade. 14. The development of this property shall proceed in accordance with the development plan as recommended for approval by the Planning Commission and approved by the Governing Body, and any substantial deviation of the plan, as determined by the Zoning Administrator and the Director of Planning, shall constitute a violation of the building permit authorizing construction of the proposed development. 15. Any major changes in this development plan shall be submitted to the Planning Commission and to the Governing Body for their consideration. 16. The transfer of title of all or any portion of the land included within the Community Unit Plan does not constitute a termination of the plan or any portion thereof, but said plan shall run with the land for commercial development and be binding upon the present owners, their successors and assigns, unless amended. 17. The applicant shall submit 4 revised copies of the C.U.P. to the Metropolitan Area Planning Department within 60 days after approval of this case by the Governing Body, or the request shall be considered denied and closed. MCKAY moved, WARNER seconded the motion, and it carried unanimously (14-0). ------------------------------------------------------------------------ Warner left the meeting at 2:50 p.m. McKay left the meeting at 2:50 p.m. 8. Case No. CON2001-00020 – Fierro's Tire Repair requests a Conditional Use to allow used car sales on property described as: Lot 8, Block 4, except the West 10 feet for street, Goldens Gardens, together with the North Half of vacated 10th Street on the South, except for the West 10 feet for street, Sedgwick County, Kansas. Generally located on the southeast corner of Zoo Boulevard and West Street. Lot 8, Block 4, Golden Garden Addition. BILL LONGNECKER, Planning staff, pointed out land use and zoning; and showed slides of the general area. He reviewed the following staff report: BACKGROUND: The applicant, Fierro's Tire Repair, is requesting consideration and recommendation for a Conditional Use to allow used car sales on property zoned "LC" Limited Commercial. The property (approximately 16,000 square feet) is described as Lots 8, Block 4, Golden Garden Addition, located on the southeast corner of the Zoo Boulevard and West Street intersection. Zoo Boulevard fronts the east side of the property and West Street fronts its west side. The Unified Zoning Code requires a Conditional Use for vehicle and equipment sales, outside in "LC" Limited Commercial zoning. The applicant is requesting consideration of used car sales on this property, which contains an active tire, brakes and muffler repair shop. The applicant proposes to continue the current business and add car and truck sales to it. The site has 3 existing entrances/exits; 2 on Zoo Boulevard and 1 on West Street. The site has an existing building for the current business, of approximately 1,512 sq.-ft. There are 2 canopies (792 sq.-