BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS
ADDRESSING THE COMMISSION: Public comment will be taken for each regular agenda item as each item is discussed. Individuals will be limited to one comment per agenda item.
Individuals are asked to come to the microphone, sign in, and state their name. We ask that you sign in so that we can get the spelling of your name correct in the minutes of the meeting. Speakers should address all comments/questions to the Commission.
WEDNESDAY, JULY 17, 2019
5:30 p.m. BUSINESS MEETING
(1) (a) Consider approval of Commission Orders;
(b) Consider approval of the minutes for June 12, 2019; and
(c) Accounts payable.
(2) CUP-19-00219: Consider a Conditional Use Permit for EZ Storage, a Boat Storage and Mini-Storage facility, located at 1803 E 1200 Rd. Submitted by Anthony Fanello, property owner of record.(Mary Miller)
(3) Continued discussion on the 2020 Budget. No backup material provided.
(4) Executive session to discuss personnel matters of non-elected personnel.
(5) General Public Comment
General Public Comment will be at the end of each meeting with a limit of one comment per person and keep their comments brief. Individuals may not give unused time to other speakers. As a general practice, the Commission will not discuss/debate these items, nor will the Commission make decisions on items presented during this time, rather they will refer the items to staff for follow up, if necessary.
(6) Committee Reports
(7) Commissioner and/or Administrator Miscellaneous
July 17, 2019
Derusseau called the Regular Session to order at 5:30 p.m. on Wednesday, July 17, 2019 with all Commissioners present.
CONSENT AGENDA 07-17-19
Kelly moved approval of the following Consent Agenda:
► Minutes of June 12, 2019; and
► Accounts payable in the amount of $4,006,194.03 to be paid on 07/18/19.
Motion was seconded by Thellman and carried 3-0.
The Board considered CUP-19-00219, a Conditional Use Permit (CUP) for a Boat Storage and Mini-Storage facility, located on approximately 28.68 acres at 1803 E 1200 Road. The application was submitted by Anthony Fanello, property owner of record. Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
Miller discussed the “golden factors” as setup in the Findings of Fact. There was a valid protest petition certified with the County Clerk requiring a unanimous vote for approval. Miller addressed public concerns that the property is located in the Urban Growth Area (UGA) and has direct access to a paved collector road or higher. The property owner will provide secured fencing and lighting with no glare. Miller stated additional conditions can be added regarding lighting and screening, if needed. However, there are existing trees along the north and west side of the property that should provide adequate screening from residences to the north and northwest. She received confirmation from Westar there would be no impact on electrical utilities for the area. The Zoning and Codes office did not have concerns regarding drainage on the site. The Planning Commission voted 5-5 to forward the item to the Board of County Commissioners with a recommendation for approval and voted 5-5 for a motion recommending denial. Therefore, there is no recommendation from Planning Commission.
Staff recommends approval of the CUP-19-00219, based on the proposed findings of fact:
I. Zoning and land uses of surrounding properties. Zoning in the area is split, with agricultural zoning west of E. 1200 Road and industrial zoning to the east. Two nearby residential properties which were annexed into the City of Lawrence were assigned single dwelling residential zoning until development is proposed. The floodplain overlay district cuts through the area north/south along the west border of the subject property. The area is primarily agricultural in nature, with small rural residential parcels located along N. 1800 Road/County Route 438. The proposed use would be compatible with the industrial and agricultural uses and zoning. The facility could have a visual impact and should be oriented and designed to minimize any negative impacts on nearby residential land uses.
II. Character of the area. The area contains a mix of urban and rural uses with the dividing line being generally E.1200 Road. Industrial zoning and land uses are located to the east of E.1200 Road, with some residential uses along N.1800 Road/County Route 438 and agricultural and residential uses are located primarily to the west of E.1200 Road. Higher classification roadways access this area with N.1800 Road/County Route 438 providing a connection through the area from east to west and E. 1150 Road and E.1200 Road, south of N.1800 Road, providing north/south access.
III. Suitability of subject property for the uses to which it has been restricted. The subject property is well suited to agricultural use and has been used for agriculture. The property owner originally inquired about dividing the land and building another residence, but this did not comply with the recommendations in the approved long-range plan, which will be discussed in Section VII of this report. Boat Storage and Mini- or Self-Storage uses are permitted in the A District when approved with a conditional use permit. The property, with its access to the higher classification road system, is suitable for the proposed storage use.
IV. Length of time subject property has remained vacant as zoned. This property is not vacant. The Douglas County Appraisers records note that the residence was built in 1900.
V. Extent to which removal of restrictions will detrimentally affect nearby property. The standards for the mini-storage use provided in the Zoning Regulations are intended to facilitate the operation of the facility and to minimize the impact on nearby properties. The proposed facility is compliant with these standards and should not detrimentally affect nearby properties. The visual impact of the exterior boat and RV storage will be reduced with the existing and proposed landscaping.
VI. Relative gain to the public health, safety and welfare by the destruction of the value of the petitioner’s property as compared to the hardship imposed upon the individual landowners. As the facility is compliant with the standards established in the Zoning Regulations for a Mini- or Self-Storage use and is compatible with the character of the area, little benefit would be gained from the denial of the application. The hardship for the applicant would be the need to pursue another, perhaps a more intrusive use, permitted in the ‘Office/Research’ land use category recommended in the K-10 and Farmer’s Turnpike Plan or to submit an application for an amendment to the plan to revise the land use recommendations.
VII. Conformance with the comprehensive plan. The conditional use permit is in conformance with the recommendations in the Compre-hensive Plan, including the specific future land use recommendations in the adopted area plan.
VIII. Professional staff recommendation. Staff recommends approval of the conditional use permit subject to the condition that an annexation agreement and consent to annex be executed and submitted to the Planning Office. This will facilitate annexation when infrastructure has been extended to the area and annexation is desired and determined to be appropriate.
And, subject to the following conditions:
1) The applicant shall provide an executed annexation agreement, including consent to annexation, to the Planning Office prior to the release of the conditional use site plan to the Zoning and Codes Office for processing of building permits.
2) The access point on E.1200 Road will be revised, if necessary, to meet Wakarusa Township requirements and a revised plan reflecting these changes will be provided to the Planning Office prior to the release of the plan to the Zoning and Codes Office.
Derusseau said staff commented that they looked at the suitability of property for uses in the “A” District and said the property was well suited for residential and ag uses, but yet the applicant was told they couldn’t go that direction. Miller responded the property is not well suited for an additional residence.
Derusseau noted that everything around it is going to be low, medium or high density residences going forward with the exception of the east side of the road. According to the map, the people living on the south side of 1800 Road are zoned for heavy industrial, and the people to the north are setup for office and research. Derusseau asked if Miller anticipates everyone leaving in the next 20 years and the property will then be targeted for industrial development. Miller said people could leave. When property gets annexed into the City it is usually development driven. Many times developers purchase property or buy landowners out. It’s possible some industrial proposals could go through and the residences remain. She feels that is why it important not to approve additional residential properties. Miller stated E 1200 Road is the dividing line based on what is there currently with industrial zoning on the east and agricultural zoning on the west. The long-term plan determined the zoning by the natural barriers, by having residential housing on one side of the natural green space and industrial on the other.
Kelly said the policy for the Farmer’s Turnpike Plan specifically says no out-door storage. He asked Miller how she reconciled that with her recommendation. Miller responded that when this property is annexed into the City it will be a simple matter to remove the boat storage as it is not a permanent facility.
Kelly asked why we wouldn’t start with annexation into the City first especially when we already have island annexed parcels in the area. The K-10 Farmer’s Turnpike Plan is designed for “as the UGA expands”. Kelly said if annexation is development driven then this seems to be a development that would require annexation. Miller said annexation is considered when a development needs services. This proposal would not require any services yet, and the City is not ready to extend services and be financially responsible. They want the development to pay for it itself. Miller said the City is taking a slow look at annexation. They want to develop within the City limits.
Derusseau stated the land split request could have been allowed. These maps are guidelines and there is no formal ordinance or resolution that prevented the applicant requesting to amend this or gone ahead with a Certificate of Survey. Miller said the applicant could have gone ahead with a Certificate of Survey but the Planning Office would have denied the request, and she assumed the County Commission would have denied it also.
Thellman said the new Comprehensive Plan is not adopted yet, but it’s been four years in the making. We are all fairly well aware of the direction it is trying to take us and it is important to acknowledge this parcel is a Tier 3 parcel, which means the City doesn’t anticipate developing/annexing into the City boundaries in the lifetime of the new Plan 2040. Thellman added we are in an awkward moment transitioning from an old Sector Plan to a new plan and with a different way of thinking about this area.
Miller said if you want to develop in Tier 2 you need to annex. In Tier 3 you will not expect to develop with urban services because the City does not intend to annex you. She said the Long Range Plan 2040 still maintains this area plan.
Thellman stated with that new plan, a lot of the intention is to revisit some of these sector plans. Miller stated she is not aware that was part of the conversation but anyone can ask to initiate a change to a plan, either the applicant or the County Commission.
Kelly asked if moving slowly on services includes roads. Miller stated, yes, if a developer came in with an annexation request northwest of town, the developer is primarily required to develop the roads themselves.
Kelly asked who would be responsible for the wear and tear on 1200 Road to access this facility, since traffic would not take access off Farmer’s Turnpike. Miller responded the township would be responsible. She stated a township official visited the site to make sure vehicles could turn into the property without damaging the road.
Thellman stated she watched the video of the Planning Commission meeting regarding this item and this project was described as a good interim project because in the future it could be mini-storage units, and the open boat storage could be converted to warehousing, which would be appropriate for office research designation. As an interim use, it would not be the highest use for that category but it could be turned to an appropriate, acceptable use. But, the “residential office” designation use would also be an appropriate option for the office research. Miller said she was not sure if that was an allowed use.
Lance Adams, Architect, stated two partners with multiple businesses in Douglas County purchased property with the hope of dividing the property to each build a home. The City was adamant that they could not add another residence to the property. They reevaluated to find another use for the property. Mini-storage would be allowed with a Conditional Use Permit under industrial research, per Horizon 2020. This property is right on the edge of the Farmer’s Turnpike/K-10 development corridor. The buildings are light for the site. The trees being requested will almost be as tall as the buildings. Adams said the real issue with this discussion is, “Do we, as the City and County, want to support Horizon 2020 or do we want to support Horizon 2040?” He said if the City and County cannot come to grasps whether this should be industrial then the Farmer’s Turnpike/K-10 Corridor needs to be removed from the Horizon 2020 and 2040 plans. According to the Planning Commission vote of 5-5, they were unsure what to do. It is the County’s opportunity to make a decision. He said this is not about boat storage; it’s about what the property designation should be.
Thellman stated that designation came from a Sector Plan that was adopted in 2011. The 2020 Plan was adopted in 1998 and it’s a plan that has been added to.
Adams stated the property owners need a decision. They have been dealing with this for a while. They have wasted time and money.
Anthony Fanello, property owner, stated he has owned the property since October. It has been quite a process to figure out what can be done with the property. He would like to have a decision on what direction to go.
Thellman asked if the County could find a way to go back to the residential option would they be interested to have more of an agricultural future.
Fanello stated when they initially bought the property, the plan was to split it to build two residences. In the meantime, they have made other living arrangements and invested their time and money into this project. However, if that were an option, he would be willing to give some feedback.
Derusseau opened the item for public comment.
Larry Bartz, 1819 E 1200 Road, stated this property is in the floodplain. If this were to be built in the City limits, it would be required to have retention ponds, but the County doesn’t require that. He feels taking out terraces, flattening the ground and eliminating brome will cause runoff. He said the plan for Farmer’s Turnpike requires all industrial development to be on the Turnpike, not on another road. He also stated concerns about traffic. He asked that the Board deny the application.
Derusseau asked Bartz if he or his family were ever informed that his property was going to be rezoned to Office/Research land use on the Sector Plan. Bartz replied, “no.” His property was split off his mother’s property in 1993 and he was not aware if she had been notified.
Miller stated the Long-Range Planning Committee holds advertised public meetings before plans go to the Planning and County Commissions for approval.
Derusseau asked if property owners are notified once a decision is made to change the future land use of a property. Would the Realtor know when they sold the property that the future land use would be different then what it currently is? Miller responded, yes, if the realtor did their background search as they should. Realtors normally check current zoning, if there is floodplain and any future land use plans.
Thellman said she was a new Commissioner when all of this happened as a result of the City’s attempt to island annex land along Farmer’s Turnpike. The neighborhood organized a campaign against the attempt to annex. There was litigation up to the Supreme Court where the annexation was rejected, and then went to a lower court. The neighborhood won. That brought about a compromised Sector Plan. Things have changed since the Sector Plan was created. The thought process behind the drive to identify industrial land has shifted to a new view on economical development, with an awakening of the value of agricultural land. Thellman said that area is a tight-knit residential farming community that doesn’t take land value for granted.
Evert Shockley, 1215 N 1800 Road, stated he lives 850 feet from the proposed site and in a well-established neighborhood. The K-Mart Distribution Center brought lots of traffic. He is concerned about increased traffic, the road is not designed for heavy traffic, drainage concerns, and the cost to the township for road maintenance.
Derusseau asked Shockley if he was notified his property was targeted for future industrial use. Shockley responded, “no.”
Lyric Bartz, 1819 E 1200 Road, stated she built her house in 1993 and was not notified of the proposed change in zoning. If she had known, she would not have built in that location. She said the 2040 Plan recognizes growth, but this business would only supply maybe two jobs. And, she was concerned that the facility is proposed to route all traffic onto a 20 ft. township road. Bartz said it is not possible to turn within the radius and stay in her lane with her horse trailer. She also stated concerns about the drainage systems, flooding and supports the County maintaining its rural character.
Derusseau closed the public comment.
Thellman stated the K-10/Farmer’s Turnpike Plan (184.108.40.206) offers a “Residential Office” land use. She added if a boat storage proposal could be considered an interim option for future development, so could a residential use with an office. Thellman said there might have been a creative way to work with the client in the very beginning of this process to provide the residential use. It seems to make a lot of sense for the land and this neighborhood. Thellman said she is disappointed especially knowing we are in between plans. One is adopted and the official guideline and the other is very close. She said though it is unofficial, it is still very much a part of our conscious to preserve the rural nature of our community as much as possible and still be reasonable when it comes to economic development without superseding the value of the character of the rural area. Thellman said there is one thing she keeps going back to, citing Page 19 of the K-10/Farmer’s Turnpike Plan. “The plan outlines future land uses for the planning area to be used as a guide for urban development only after annexation into the City of Lawrence occurs.” Thellman said it’s a guide to future development only after annexation into the City. Thellman said she knows the wisdom of preserving the thought of what the future zoning might be. But we are holding an entire area, homeowners and new buyers captive to something the City doesn’t even foresee doing in the Plan 2040. She added even in Tier 3 annexation is not envisioned.
Miller stated it’s a guide for development that would occur after annexation.
Thellman said the question is “Is that guide regulatory or law; is it what has to be or is it a strong suggestion?”
Miller responded for a while the Comprehensive Plan was viewed as a guidebook, until the Commissions voted it was not a guidebook. Staff was to go by what it says until something requires an amendment. Miller said it is possible to change the plan, it’s just not possible for planning staff to vary in interpretation. The most straight forward way to make changes would be to amend the plan.
Thellman said as a Commission it’s important to recognize we may be at a pivot point in terms of this particular Sector Plan and need to look at this agricultural valley with different eyes as it’s becoming an increasing important site for agritourism, for very productive farming and new types of business and agricultural research.
Kelly stated for many years the Planning Commission was told that the Comprehensive Plan is a dynamic document that is always changing. He said he was disappointed to hear it is considered “code” because that is not what he had been told. He agreed with Commissioner Thellman, we are at an interesting point. He said if this is in Tier 3 and Plan 2040 passes, doing a transition use at this time doesn’t make a whole lot of sense. Kelly said he feels for the property owners but he believes they do have some options. The County Commission or the applicant can initiate a change to the Comprehensive Plan or do a Certificate of Survey. He said there are a number of ways we can look at this property differently. Kelly said we are changing the way we are looking at development. He said he struggles with changing the zoning of this property without annexation, which is what this plan is for, as listed in the second paragraph of the purpose of the plan. He feels changing the zoning is premature. He doesn’t see the current plan supporting it, nor the policy coming forward supporting it. There are other ways to get to land uses the applicant may be able to use. Kelly added this seems out of context for our long-term plans.
Thellman said even with the Plan 2040 coming forward, she would still find the boat storage a negative development for this particular area and would vote against it. She said she does know the area, the value of the rural character of the area, and how important it is for our future in Douglas County. She agreed with Commissioner Kelly there are ways to be helpful on the previous residential proposal. Thellman said she wishes the Commission knew about the situation early on. There has not been the kind of conversation between City and County that could have saved time and money.
Derusseau said she did not plan to support the request. She had concerns about how this could be presented as suitable for the area and that is why we are looking at a CUP. She said the two-mile stretch from E 1200 Road and E 1000 Road is either open space or some sort of residential land use. Derusseau stated she does not see how this fits in. She was disappointed to hear the applicant’s original request was denied. She feels those type of decisions need to come before the Commission.
• The Board could vote to initiate a plan amendment and give staff direction on what the Board wants staff to look at;
• The Board could recommend a Certificate of Survey and make a finding that the Planning Director made an error in his interpretation and determine in the Findings of Fact that the process was not compliant and then revise within the standards to move forward with a residential office.
Kelly asked what Residential Office use is in the County use tables. Miller said there cannot be a residential office use today as we don’t have a CUP that offers that. You can make a building with the intent for it to become a residential office. This route might be quicker.
At 7:05 p.m., the Board took at 5-minute recess.
At 7:10 p.m., the Board returned to regular session.
Sarah Plinsky, Interim County Administrator, advised that based on discussion during the open meeting, the Findings of Fact to deny the application could be summarized as follows:
1. The development is premature at this time.
2. It is out of character.
3. The Long-Range and/or Sector Plans need to be updated to reflect current understanding; and
4. The suitability of the site.
Thellman moved to deny the application based on the four Findings of Fact as outlined by Sarah Plinsky, Interim County Administrator. Motion was seconded by Kelly and carried 3-0.
It was the Consensus of the Board for staff to work with the applicant on what options are available and give them enough time to think about how they want to proceed. Kelly added he doesn’t want the Board to get ahead of themselves in redesigning Sector Plans before they look at Plan 2040 because some of the decisions made there may influence some of the Sector Plans. He would like to have staff come back before the Board at that time to discuss the impact.
The Board continued discussion on the 2020 Budget. Items discussed included:
• Lawrence-Douglas County Fire and Medical (LDCFM) training tower. The full cost presented by the City of Lawrence included over 8.5 acres, which belong to the City. The Training Center makes up 40% of the property. There was a question on whether the County should be responsible for more than 40% of the costs, which is approximately $11,980. Also questioned whether the County would be charged for trees at the park.
• It was the consensus to put the entire proposed amount of $307,000 in the CIP to proceed with setting the mill levy. However, it was not a guarantee the County would approve the full project costs. The County would continue negotiations with LDCFM.
• It was the consensus of the Board that they would consider a 0.379 mill levy increase.
• No action was taken on the budget.
• It was the consensus of the Board for staff to publish the Budget Hearing date as August 14, 2019, which is the last date the Commission can lower the mill levy.
• The Tower Project will come back to the County Commission for approval at a later date.
• The Board directed staff to informally communicate with the City budget staff what is included in the recommended budget for 2020 for all City/County projects and arrangements.
EXECUTIVE SESSION 07-17-19
Derusseau moved to recess into executive session to discuss personnel matters of nonelected personnel in order to protect the privacy of the individual(s) involved. The Board will convene the open meeting in this room at 8:00 p.m. (25 minutes). Motion was seconded by Thellman and carried 3-0. Attendees included: Commissioners Derusseau, Thellman and Kelly.
At 8:00 p.m., Derusseau extended the executive session for an additional 5 minutes, to return at 8:35 p.m.
The Board returned to regular session at 8:35 p.m. No action was taken.
GENERAL PUBLIC COMMENT 07-17-19 - None.
APPOINTMENTS 07-17-19 – None.
Thellman moved to appoint Jenny T. Muller to the Heritage Conservation Council for a three-year term to expire 05/31/2022.
COMMITTEE REPORTS 07-17-19
· Upcoming attendance for Board members included pie judging at the Douglas County Fair on August 2 at 9:30 a.m.; and judges luncheon on August 23 at noon.
COMMISSIONERS AND/OR ADMINISTRATIVE MISCELLANEOUS 07-17-19
• Kansas Historic Sites Board of Review Meeting: August 3, 2019 at 9:00 AM in the Kansas Museum of History – Museum Classrooms (6425 SW 6th Ave., Topeka, KS)
• Lawrence-Douglas County Health Board Meeting: August 19, 2019 at 5:00 PM at the Community Health Facility (200 Maine Street)
• 44th Annual KAC Conference: November 12-14, 2019 in Wichita/Sedgwick County
• The Lawrence-Douglas County Health Board met July 15. (The minutes are included in the agenda backup)
• The Kansas Historic Sites Board of Review met on August 3 (The minutes are included in the agenda backup)
• The Kansas Association of Counties (KAC) is asking for the completion of the Certificate of Voting Delegate for one voting delegate, along with a first and second delegate for the 44th Annual KAC Conference. These certifications must be filed no later than October 25, 2019. A brochure with complete information about the annual conference has been distributed and registration is open.
• May 28, 2019 Tornado Recovery Update: Douglas County Public Works is winding down operations for picking up woody debris for residences. To date, over 9,000 cubic yards of woody debris has been picked up to be chipped by the contractor. Construction and demolition (C&D) debris pickup is ongoing. To date, over 488 tons of C&D debris has been picked up and staff estimates that over 1,000 tons will be collected through July 24, the last day for pickup. Staff is working to get the message out to the community that C&D debris in the right-of-way can be picked up, but it excludes concrete foundations. On July 23, Douglas County staff will host a meeting of other public sector entities that were involved in the response and recovery; and the Kansas Department of Emergency Management (KDEM) will prepare for our meetings with the Federal Emergency Management Agency (FEMA). This meeting will be preliminary and exploratory. After the meeting with KDEM, staff anticipates hearing from FEMA in the next 60 days. There may be delays because of the number of disasters and events in our FEMA area. The agriculture sub-committee and the financial assistance sub-committee are discussing what proposals could be developed and submitted to the Community Foundation. The Community Foundation has indicated that funds will be granted to agencies not individuals. As those proposals are developed and submitted for consideration, staff will keep the Commission updated. 2-1-1 is still receiving calls for assistance from impacted citizens. The largest areas of need are tree removal and clean up from large properties. Areas near residences have largely been cleaned up, but there is significant damage to trees along streams, windbreaks, and outlying trees. The sub-groups are going to brainstorm some opportunities or proposals to assist with that need, if possible. The next meeting is scheduled for August 13 at 2:00 p.m. in EOC-A.
Derusseau adjourned the meeting at 8:23 p.m.
Michelle Derusseau, Chair Patrick Kelly, Vice-Chair
Jamie Shew, County Clerk Nancy Thellman, Member