METROPOLITAN AREA PLANNING COMMISSION MINUTES December 21, 2000 The regular meeting of the Wichita-Sedgwick County Metropolitan Area Planning Commission was held Thursday, December 21, 2000 at 1:30 p.m., in the Planning Department Conference Room, 10th floor, City Hall, 455 North Main, Wichita, Kansas. The following members were present: Chris Carraher, Chair; James Barfield, Frank Garofalo; Bud Hentzen; Bill Johnson; Richard Lopez; Ron Marnell, John W. McKay, Jr., Jerry Michaelis; George Platt; Harold Warner; and Ray Warren. Susan Osborne-Howes and Chris Anderson were not present. Staff members present were: Marvin S. Krout, Secretary; Dale Miller, Assistant Secretary; Donna Goltry, Principal Planner; Scott Knebel, Senior Planner; Barry Carroll, Associate Planner, and Karen Wolf, recording secretary. 1. Approval of meeting minutes for November 9, 2000 CARRAHER "Are there any addition or corrections to the minutes?" PLATT "Yes. I would like to amend Page 86 to show that on Item No. 12, I abstained." CARRAHER "Okay. Without objection, so ordered." HENTZEN "On Page 74, about a third of the way down the page, it quotes me as saying 'in fact, regarding the school district, the citizens of Wichita approved a $184 million bond issue'. That should actually be $284 million. I don't know if I said it wrong, but it should be $284 million." CARRAHER "Okay. Without objection, so ordered. Are there any other additions or corrections to the minutes? With that in mind, I will yield the floor to Mr. McKay." MOTION: That the Metropolitan Area Planning Commission approve the minutes of October 9, 2000 as amended. MCKAY moved, GAROFALO seconded the motion, and it carried unanimously (11-0). ------------------------------------------------------------------- CARRAHER "Are there any items on the subdivision agenda that need to be pulled for reconsideration?" MCKAY "I would like to comment on Item 3/1." CARRAHER "Why don't we go ahead and take care of the subdivision items and then we will move on to the vacation items?" MCKAY "Okay." CARRAHER "Seeing as how there isn't a need to pull either Item 2/1 or 2/2, I would open the floor for a motion to approve the subdivision items as presented." Subdivision Items 2/1 and 2/2 were approved subject to the Subdivision Committee recommendations. MARNELL moved, LOPEZ seconded the motion, and it carried unanimously (11-0). 2/1. DED2000-00034 - Dedication of a Utility Easement from Rhonda and Neil Widener, on property described as: The east 2 feet of the west 10 feet of the west 100 feet of Lot 30, Third Clarkdale Subdivision, Sedgwick County, Kansas. Located east of Seneca, north of 61st Street South. PURPOSE OF DEDICATION: This Dedication is a requirement of Lot Split No. SUB 2000-101 and is being dedicated as a requirement by City Engineering to increase the 8-foot easement to the 10-foot standard. Planning Staff recommends that the Dedication be accepted. ------------------------------------------------------------ 2/2. DED2000-00035 - Dedication of a Utility Easement from Louis Confessori, for property described as: The west 2.0 feet of the east 10 feet of the south 90 feet of the west 150 feet, Lot 10, Block 8, Parkwilde Addition to Wichita, Sedgwick County, Kansas. Generally located south of Central, west of West Street. PURPOSE OF DEDICATION: This Dedication is a requirement of Lot Split No. SUB 2000-96 and is being dedicated as a requirement by City Engineering to increase the 8-foot easement to the 10-foot standard. Planning Staff recommends that the Dedication be accepted. -------------------------------------------------- 3/1. VAC2000-60 - Request to vacate a portion of the platted 25-foot utility easement, on property described as: The south 4.00 feet of the north 30.00 feet of the west 80.00 feet of the east 105.00 feet of Lot 24, The Havens, an Addition to Wichita, Sedgwick County, Kansas. Generally located on the southwest corner of Central and Cedar Downs Circle. The applicant is requesting to vacate a portion of the platted utility easement to expand site width for proposed home. SUBDIVISION COMMITTEE'S RECOMMENDED ACTION: The Subdivision Committee recommends approval subject to the following conditions: 1. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. BARRY CARROLL, Planning staff, "This particular case was considered on December 14, 2000. There was considerable discussion associated with this case. The Water and Sewer Department representative expressed a concern about this particular case and ultimately the Subdivision Committee voted to approve a vacation with a modified Hold Harmless Agreement. The agent was supposed to get with the staff of the Water Department and work out the terms of that prior to that meeting. As I understand it, that has not been completed. The agent is here today. The Water and Sewer Department does not support a vacation for this particular case. They are asking for a Hold Harmless Agreement, due to the proximity of this sewer line to the house. Consequently, we are supporting that same position, not to support a vacation, but a Hold Harmless Agreement. There should not be both, as I understand it, both a vacation and a Hold Harmless Agreement. I will respond to any questions that you might have." MICHAELIS "Mr. Carroll, maybe you can refresh my memory, and Mr. Lopez might be able to help me here, but I thought that we voted to defer that. We didn't vote to approve it with, we voted to defer it, based on the applicant working out an agreement." CARROLL "As I understood it, we were to go forward with it, and they were trying to work the details out prior to this meeting." MICHAELIS "I think Mr. Lopez had made a motion, and then I made a substitute motion to defer it. Unless I am way off base." CARRAHER "Do we have Subdivision Committee minutes or anything that can clarify this issue? It seems like we are at kind of an impasse here, and I would like to be sure how to approach this." CARROLL "As I recall, the agent had asked that we go forward to the request." PLATT "My recollection is that we approved the vacation, subject to a Hold Harmless Agreement being worked out with the Water Department and approved by Legal. I voted against it because I felt it should have been deferred, and that the Subdivision Committee should see the Hold Harmless Agreement before it was moved forward. But my recollection was, though, that the intent of the motion was that it would not appear before the Planning Commission until that had been agreed upon." LOPEZ "I think that is correct. We talked about the deferral and then we continued the discussion that until they had that Hold Harmless Agreement worked out, it wouldn't come back to us. I believe that is how it went. We originally went for a deferral, and then went on past that because we weren't going to get that passed." MICHAELIS "Okay." CARRAHER "With that in mind, and I believe a consensus reached, we will continue on with this issue. I believe, before we discussed this that Mr. Carroll was ready to stand for questions. Are there any questions for staff regarding this issue?" MARNELL "The agreement that you referred to, has it been reached or not?" CARROLL "As I understand it, it has not." MARNELL "Then what is it doing here." KROUT "The day after the Subdivision Committee, we prepare the agendas and mail them out so we put it on the agenda, assuming that it could get worked out within the next week. I guess we didn't know until today whether or not it would be worked out. So we are reporting to you that it is not worked out." LOPEZ "Correct me if I am wrong, but I think we agreed, when we made the motion that it wouldn't come back to us for any movement until the agreement was worked out. I had asked if it was going to be on the agenda next week at the meeting, and they stated that it would be on the agenda, but if it isn't worked out, it won't be coming forward." CARRAHER "So is the chair to assume that right now, this issue has not been worked out to where it should be presented before us at this time? The chair is at a loss here on how to approach. I am hearing to defer it." MCKAY "Let's hear from the applicant. We have only heard from the staff. The applicant is here." CARRAHER "That is a good idea. Would the applicant like to speak?" PHIL MEYER "I am with the Baughman Company, agent for the applicant. I think we are asking this to be before you today because I don't think we can work out a Hold Harmless Agreement. You asked us to try to work one out. The impasse we are at, and there are two representatives from the Water and Sewer Department here and Vicky Huang from the Engineering Department, who was at the Subdivision Committee meeting is here. The Water and Sewer Department, and I am speaking for them, so they can correct me, have changed their minds and no longer wants any of the easement vacated. They want only a Hold Harmless Agreement. Warren arrived at 1:40 p.m. The Subdivision Committee's motion was to vacate the easement, which is what we want, in conjunction with a Hold Harmless Agreement, in case the house is damaged. We feel that we have to have the easement vacated. We don't want that cloud on the title to follow this piece of property every time it is sold. In my mind, and I will go into as much detail as you want, there is no reason why the vacation case shouldn't be approved. We have adequate distance from the sewer to the edge of the easement. The distance from the edge of that easement to the sewer is no different than anywhere else in town. I went back to my office and tried to figure out why you guys ever platted a 25-foot easement. It should have been a 20-foot easement. That is all we put sewers in are 20-foot easements. Once upon a time in our design, we had a storm sewer in that same easement. We do go to 25 foot when we have a storm sewer and a sanitary sewer together. Somewhere along the process, we pulled the storm sewer out of the design. They switched it to a 25-foot utility easement, rather than a 20-foot. Rather than reducing the size of it. If we would have made that change, this thing would never be in front of you and that sewer would be in the exact same location out there in the field. We met with Engineering before ever filing the case in front of you. We had the support of the Engineering Department to do the vacation cases. We originally requested to vacate 5 foot of the utility easement. Vicky came back to me and said she couldn't support that. She said she would support 4 foot, but I can't do the extra foot, they needed the clearance for the sewer to match it like it is all over town. So we agreed with that. We were revised our footprint, pulled a foot out of the house, and proceeded on with the 4 foot vacation case for the utility easement. Since then, and after the meeting at which there was such a debate on this, Vicky went back to Mike Lindebak, who is the City Engineer, and showed him the case and said 'here is the stance I took--here is what I did. What do you think? He also told her that he was okay with that. I called him yesterday and got permission to stand here and tell you, from him, that he is okay with the vacation case. That the way Vicky supported it when I worked it out with her was adequate to him, and he supported it. So what I have is the two different departments in disagreement here. I would like to ask the Planning Commission today to approve the vacation case just as we presented it--as we started it. Water and Sewer is going to want to come up here to the podium and tell you that there should be no vacation at all, that it should be just a Hold Harmless Agreement. I am going to tell you that I've got adequate distance between that sewer to the edge of the easement, to maintain it, to repair it. No different than anywhere else in town. There are a lot of instances where there is this much clearance from a sewer to an edge of an easement with a structure sitting there. With that, I will answer any questions you might have. Or, I will come back up after you hear some more conversation from the city staff." CARRAHER "I am going to have you stand for questions, Mr. Meyer." BARFIELD "Was it your understanding that this was approved with a condition that the agreement had to be in place?" MEYER "It was clearly my understanding that the vacation case was approved, subject to us working out a Hold Harmless Agreement that had adequate wording in it." BARFIELD "Well, I just want to be sure that that is the same understanding that the staff had. I am asking this of Barry. Was it your understanding that it was approved with a condition that the Hold Harmless Agreement be in place?" CARROLL "It was my understanding of the motion. That the vacation, plus I think the term was used 'modified Hold Harmless Agreement'. They were to work it out and the Law Department was to review it. If it was okay, then that was how it would be." BARFIELD "If that was the understanding we had, I don't see how we could possibly move forward with this." MEYER "I think the Water and Sewer Department is asking you to change your original motion that you made at the Subdivision Committee hearing. Because that motion was to support the vacation. Now they are saying 'no vacation at all'." MICHAELIS "Mr. Meyer, I think we need to point out, too, and correct me if I am wrong, but I think at Subdivision, you made a point of the fact that that is the normal procedure you go through on a vacation. You typically go to Engineering and get their permission, and then from there, in this case, with their permission, you went down and were granted a conditional building permit, based on them saying 'okay'. So you did the normal policy that you normally do." MEYER "I followed what I consider my standard operating procedure. I got Engineering's approval before we ever went forward. We even modified our original request a little bit, to match what Vicky felt comfortable with." KROUT "First, I probably want to tell the Planning Commission that I think the staff is going to have to talk about this and see if we need to modify our practices so that we don't get into this situation of Water and Sewer and Engineering not agreeing. At the Subdivision Committee, and I don't recall exactly what the twist was, but you said that you wanted to do a modified Hold Harmless Agreement. Can you remind the Planning Commission what was the modification, and have you talked to Water and Sewer about that?" MEYER "Yes. I think my original comment was that I didn't want any Hold Harmless Agreement, but if the Subdivision Committee felt that was necessary to support the vacation, I would agree to it, if we could modify it. The Hold Harmless Agreement, generically off of the shelf, basically says if anything goes wrong with that sewer and that easement, it is the homeowner's responsibility to repair and maintain it. That is really an unfair liability to strap this lot with. So my comment was, if we have to have a Hold Harmless Agreement, let's at least modify it so that it is fair to this homeowner. I think Rob (Younkin) had made some statements that he was concerned that maybe the backhoe would hit the house and maybe they were too close, and something like that. We were going to modify that Hold Harmless Agreement to where, if something happened to the house, the city was not held liable. I still stand behind my original comment--I don't want any Hold Harmless Agreement. But if that is the way the Planning Commission feels it has to be approved, that is fine. But we need the easement vacated for clear title purposes. There is no reason the easement shouldn't be vacated. We have adequate separation between the sewer and the edge of the easement." JOHNSON "Mr. Meyer just hit on the point that I think the real discussion was about. I am sure that Water and Sewer will get up here and talk in a minute, but I think their concern was about a hose breaking on a backhoe, and the arm swinging around and hitting the house. The city didn't want to be liable for that because of the tight quarters. It wasn't that they couldn't get in there and do the work. I think that is what the Hold Harmless was about. It had to do with the city and what could happen to the house. I guess I would agree. I wouldn't want that on the title that in the event that anything goes wrong with that sewer. He already kind of hit on that." MEYER "There are locations all over town where there are sewers that close to the edge of an easement and a structure up against the edge of that easement. This isn't a unique thing in my view. It never was when I first filed this and it still isn't." MARNELL "I think you may have just answered the question I was going to ask. What are the real clearances in this case from the proposed plans, and are they typical of what you would see in sewers. I happen to have a sewer that runs beside my house. I am one of the people that have a rare, side sewer easement. So I am very familiar with building requirements getting next to that." MEYER "We occasionally put sanitary sewers in side lots. Not a whole lot, but occasionally we've got them running through blocks. We are constantly putting storm sewers in side easements. In my opinion, there is not a whole lot of difference between the two on getting into it and repairing it and taking care of it. It is not unusual." MARNELL "But the same concerns that Water and Sewer expressed that a hose could break on a backhoe. It would happen in any number of places in town if they were working on sewers that are just as close as this would be." MEYER "It could happen downtown here. Look at all of the buildings with the sewers running in the alleys." CARRAHER "Are there any further questions of the applicant? Thank you, Mr. Meyer. Before I open it up to the gallery, since we do seem to have an impasse here between the two departments. First of all, I would like to have a representative of the Water and Sewer come to the podium and state their case. After that, a representative from the Engineering Department." ROB YOUNKIN "I am here for the Water and Sewer Department. We are opposed to the vacation. The reason is that the Hold Harmless Agreement is a vehicle to allow encroachment into an easement. You have a situation here where, unfortunately, a basement has been poured and a portion of the third car garage is encroaching into an easement. It is unfortunate that it is there, but unfortunately it is there. The vehicle that we have in place is a Hold Harmless Agreement, which will allow that encroachment, while at the same time, it holds us harmless in case we bang into that house or do damage to whatever is encroaching. By the same token, that encroachment is also very close to the sewer. He says it is adequate. Our opinion is that it is not adequate, quite frankly. Because when you take into consideration that the roof is overhanging that, it is our opinion that we are closer than what they showed in the sketch that they provided. The Hold Harmless Agreement vehicle, besides allowing the encroachment, it says that in the event that their construction or whatever they have encroached on that easement, if that causes damage to the facility that is in there, in this case, a sanitary sewer, because they caused the damage, they should be liable for the cost to repair it. It is simply a matter, in our prospective, that we are looking to protect the interest of the city and the interest of the department and the interest of the rate payer. If we have to ago in there later, after they have constructed the house where that is located, if we have to dig down in excess of 8 feet to get to the sewer and we are only 3 or 4 feet away, in all likelihood, there is going to be some kind of damage to that property. But by the same token, to do that kind of work, one of two things would probably have to happen. If we have the equipment to go out there and do that work, that is fine. That would reduce some of our costs, but we are still going to have to look at some form of type sheeting on whatever excavation we have to do. If it is too close and we are uncomfortable, we may have to hire a contractor to do that work. Then that is an extraordinary cost. The Hold Harmless Agreement says that in the event that those extraordinary costs occur, that the property owner is responsible. The easement was shown and has been platted there since the plat was done. We went out and looked at the site and what is encroaching is the third part of a three-car garage. The typical property out there has a two-car garage. Without the third car garage, this property would be sitting there outside the easement and we wouldn't be having this discussion at all if they had built a simple two-car garage and built the same kind of home which is typical out there. We went through the neighborhood. There are very few single-family homes there with the three-car garage. Those are at the south end of the properties. Next door to this property and the next few houses down are all typically two-car garages. Across the street from those are twin homes with typically two-car garages. In this case, they have a two-car garage lot that they are trying to put a third car garage on. It is the third car garage that is encroaching. It is not our fault that they built that. The Water and Sewer Department was not involved in the early discussions. If we would have been, we would have said no from square one because even though yes, we will be 5 feet or so from the edge of the easement when they are done, and that is typically where we are. We are 5 feet from the edge of an easement, but that easement is typically running along the backside of a back yard, or in your case, you probably have some side-yard set back that you had to observe. That easement would probably be within the side yard set back. But the edge of your house would not be 3 feet from the sewer. The sewer would not be within 3 feet of a house, it would be within 5 feet of a back yard, or 5 feet from a side yard. It is not typically within 5 feet of a house." CARRAHER "Are there an questions for Mr. Younkin?" JOHNSON "Being out there, looking at the residence adjacent to this where you said there are two car garages, would there be space where they could add a third garage on some of these lots?" YOUNKIN "I think generally probably so." MARNELL "Do you have a copy of the site plan with you there?" YOUNKIN "Not with me, no." MARNELL "When I look at this drawing, unless I am misinterpreting, it looks like I can see where the sanitary sewer runs with respect to the easement lines on these properties. There is one lot marked as 24, which is the one we are concerned with. But when you go to the right, which would be the lot to the east across Cedar Downs Circle, it looks like the sewer is much closer to the property line there than it would be to this vacated piece here." YOUNKIN "That is correct. The sewer is skewed as it goes through. Across the street from Lot 24 is Lot 3. If you look at the plat, Lot 3 is much larger than Lot 24." MARNELL "It would appear to me that we already have a situation right across the street that is totally legitimate that is actually closer than what the applicant is asking for." YOUNKIN "That is correct, but the property across the street is a much larger lot. The house that is on it is further south and there is much more clearance between the easement and the house." MARNELL "I guess in the case of property rights, what does that have to do with anything? It would be the right to build up next to that easement line. That property owner on Lot 3 could build right adjacent to that line as long as they never crossed into that." YOUNKIN "That's right. They could build up to the edge of that easement. That is correct." MARNELL "It would be closer to the actual sewer than Lot 24 would be." YOUNKIN "That is correct, but they are not encroaching into an existing easement. The easement was there when they were ready to build the house. We would have liked to have been involved in the early discussion, but unfortunately, we were not." MCKAY "I would like to take it in reverse. You said earlier that the depth of this sewer was 8 feet? It is 8 feet deep?" YOUNKIN "Yes, sir." MCKAY "And you also went into detail to say 'well, if it was 8 feet deep the chances of it caving off because it is so close to this' and everything else, I think that the OSHA standards are if it is anything over 6 feet you have to shore up to begin with. Isn't that correct?" YOUNKIN "That is correct." MCKAY "And I guess I am having a real problem, having been around here for a couple of years, that all of a sudden we are starting now to…I look at it that if go the way you want to do this, that we are going to do away with vacation of easements whatsoever." YOUNKIN "Ideally, that would be correct." MCKAY "I understand where you are coming from, but I am having a real problem with the fact that all of a sudden here now, you want a Hold Harmless Agreement, we don't want to do vacation of easements anymore. You've got 25 feet plus the right-of-way of Central to go in there and work. I am having a real problem with this, Rob. I can't support your stance." YOUNKIN "One thing that is not shown on this…do you see the wall easement? There is a masonry wall that is approximately 5 feet tall, it is a laid up brick. As it approaches Cedar Downs Circle, the street, it also swings to the south and encroaches the easement on that side, which we will be addressing at a later date with Phil again. But the drawing is probably to scale and it doesn't look bad here, but when you get out there and you see the confines that we actually have to work in, it is much more difficult. It is much tighter than what you are seeing because what you are looking at is basically a sewer that is as deep as from the ceiling to the floor and we are (indicating) that far from a house. That is the problem. And if something happens to that house, even though we have a Hold Harmless Agreement that says that the property owner agrees to waive all claims of law, what will happen is that we will still probably be sued. That would be my guess." MCKAY "Has that happened in the past?" YOUNKIN "We have not been sued yet. But by the same token, for a number of years, Hold Harmless Agreements were handed out fairly easily for a number of items. We were basically giving away access to utilities, not just ours, but the other utilities and easements, who are in those easements because those easements because those easements were granted to have public services and provide access and service to the public. If we allow different facilities or different people to encroach, we are losing the ability to access our facilities, making it more difficult to provide service. It is definitely more difficult to maintain. If something would happen to that in the near future and we had to go in there and try to tear up his side yard to work on it, No. 1 it is going to slow us down trying to be so careful and not damage the property, and if there is damage, then that is going to be a mess to go on. The biggest thing, too, is that the only part of this house that is encroaching is the third car garage. They could eliminate that third bay of that third car garage and they wouldn't be encroaching in any way. We would have tight confines, but we would still be able to get in and maintain it at a reasonable level at reasonable expense. But with that third car garage encroaching the way it is, and that is the only part of this property that is encroaching, it makes it very difficult to maintain that sewer in that location." MCKAY "But the flip side of a Hold Harmless agreement is that you don't have to be careful then. Your guys can go out there, swing the backhoe around, hit it, back into it, do anything else. You have no responsibility because you have a Hold Harmless Agreement. So where does the responsibility stand?" YOUNKIN "Well, that has to deal with good customer service. We would not go out there willy nilly and slam into the house just because we can. We try to avoid that." MCKAY "I didn't say that. I am saying that by the same token if you tell your guys 'you've got to be within these certain confines and you can't be reckless' they will do so. But if you've got a Hold Harmless Agreement, the flip side of it is that. You can do anything you want to and there is not a thing in the world that the owner can do." YOUNKIN "We would not do that. Whoever we would send out, our people or our agent, to go out and do the work, they would be careful. But in the event that something happens, like if the hose breaks on a backhoe, and it swings into the house, that is an accident. It is for those accidents that the Hold Harmless is supposed to hold us harmless. If that house was not there and the hose broke, we wouldn't hit the house and there would be no problem. If that third car garage was not there and the hose breaks and the bucket swings, we still don't hit the house. But with that third car garage there, there is a good chance that we could hit the house." CARRAHER "We are going to move on to a new line of questioning. Mr. Hentzen." HENTZEN "The third bay of the garage. How much does it encroach upon the present easement?" YOUNKIN "Approximately 4 feet." HENTZEN "Approximately 4 feet." YOUNKIN "Right. Which is the part that they want to vacate." HNTZEN "Sure. And do you know, builder get a permit from the permit people?" YOUNKIN "The builder was able to get a conditional permit from OCI to do some footing of some foundations. They do not have the full permit." HENTZEN "A conditional permit to put the foundations in. Do you know if they were restricted to stay out of that easement by that information on the permit?" YOUNKIN "I do not. A representative from Central Inspection could probably give you the answer to that, but I don't know." CARRAHER "Are there any further questions for the speaker. Thank you, Mr. Younkin. Now, I would like to hear from a representative of the Engineering Department." VICKY HUANG "I am representing City Engineering. Like Phil said, before he filed the vacation case, he did come in and talk to me. We agreed that we can support the vacation case and based on that, he went and got Central Inspection to give them a Conditional Permit to start construction. The reason I agreed--I guess there are three reasons that I look at. One is the existing easement is 25 feet, and they request to vacate 4 feet. We still have 21 feet, which meets our minimum standard for easement, which is 20 feet. The sewer is about 8 to 9 feet deep in that location, which is a typical depth of a sewer. Pretty typical all around the City. The third reason is that there are, all over the city, where some sewers go through side yards between two houses. In those instances, typically we have a 20 foot easement centered on the lot line and the sewer will be on the center of one side, which makes it 5 feet from the edge of the easement. A house could be built, in many cases, 5 feet from the sewer. That was my reasoning in agreeing to this vacation case. I think Engineering still holds that position. We would not object to the vacation of the easement in this instance." CARRAHER "Are there any questions for Ms. Huang?" MICHAELIS "Just a point of clarification that I think is very critical here. Even with the 4 foot vacation that they are asking for, do you still feel that you have technically one foot more than you typically do in your other easements?" HUANG "Well, because the 1 foot extra is from the standard width of 20 feet, but the sewer, since it is closer to the edge, when they vacate 4 feet, the sewer is still 4 to 5 feet away." MICHAELIS "Which is the normal practice?" HUANG "Yes." MICHAELIS "Okay. Thank you very much." PLATT I hate to sound like the Supreme Court, but you said, and I think I am correct, that you think it is still the position of the Engineering Department. Is it or isn't it? Do you support the vacation or don't you?" HUANG "We are not opposed to this vacation case." PLATT "I just wanted to be sure." KROUT "Vicky, do you recall, have we vacated easements to leave 4 feet of distance between the sewer and the side line?" HUANG "I would be very consistent. I want to protect this standard for the easements, so if there are some people who want to vacate an easement and make it less of a standard easement, we have always been in the position of not agreeing to the vacation of any of the easement to leave us with less than standard easement." CARRAHER "Are there any further questions of the speaker? Thank you, Ms. Huang. Is there anyone in the gallery who is wishing to speak either in favor or in opposition to this item? Seeing none, Mr. Meyer, you have an opportunity for rebuttal if you so chose." MEYER "I think the point I would like for the Planning Commission to understand today is that I am not out there asking for something really unique. I am not out there trying to slip something by and slide it through that is not appropriate. If anything, the thing should have only been platted as a 20-foot utility easement in the beginning. If that would have happened, the sewer would be in the exact location, my house would be where it is at, if not a foot north, and we wouldn't be having this discussion. Vicky mentioned, and I was going to point it out to you, when you run sewers through side yards, you have a 20-foot utility easement. The sewer sets, usually, 5 foot off of the center line; five foot from the edge of the easement. You have 6 foot side yard setbacks, so at that point, your side yard setback doesn't control where the house goes, the easement controls where the house goes. That house sets on the edge of that easement. I think just about every subdivision that is platted has that situation in it. Those sewers have got to run through side lot lines occasionally, to get to the other block. It doesn't happen a lot, but it happens on almost every subdivision. I just want you to know that we are not asking for any big favors here--we are not trying to slide anything past anybody. We really felt like we did our homework. We took the easement back to where it probably should have been, and we would like to ask for your support today in approving this." CARRAHER "Are there any questions of the speaker." WARNER "Mr. Meyer, were you aware that you were going to encroach on the easement before you got your conditional permit and put the foundation in?" MEYER "No. We pulled our conditional permit after we met with the Engineering Department and had their support." WARNER "Then you are telling me that you were aware that you were going to be on the easement." MEYER "Yeah." WARNER "You didn't find this out after that." MEYER "We didn't go build it and then find it. We are not trying to correct the situation. No. We knew that. We pulled our condition based on the support to complete the vacation." WARNER "That was my point. This is not after the fact." MEYER "No. We are not trying to correct a mistake." CARRAHER "Are there any further questions of the speaker? Thank you, Mr. Meyer. We will move it back to the Commission. Are there any further questions of commentary regarding the item?" MCKAY "I think, like I said earlier, that by us coming in and asking for a Hold Harmless Agreement, that is almost like what an easement is anyhow. The city or utility companies have the right to come in and work on stuff when they do something, you know, tear up a fence or hit a house or something. It is part of the whole idea. So I have a problem with that. I think we are setting a precedent that from now on any time there is an easement vacation that we are going to have to put up a Hold Harmless agreement. With that, I am ready to make a motion." MOTION: That the Planning Commission recommend to the governing body that the request for the easement be approved as originally requested, without the Hold Harmless Agreement. MCKAY moved, MICHAELIS seconded the motion. CARRAHER "Are there any further questions regarding the motion, or any commentary regarding the motion?" WARREN "What he is saying is that he is moving to vacate the easement as requested by the applicant without a Hold Harmless Agreement?" MCKAY "Right." JOHNSON "After hearing this case last week for I don't know how long, and I don't know how long we have been on it today, I have to agree with Commissioner McKay, but I think the real thing that I have a problem with is here two departments for the City of Wichita is in disagreement and we are going to get to choose which one is right and which one is wrong, which I don't like. I wish it hadn't come to this. I think it is kind of unique. Being on here for a couple of years myself, I have seen some cases where somebody has gotten off and got a basement in an easement and we have vacated them, and as far as I know, we haven't had any Hold Harmless Agreement. Now, on this case, when they were asked before they ever took a permit out and being in the construction business, I have seen what you sign when you take a conditional permit out, so I am not so sure that isn't why this came back like this. Like I said, I am going to support the motion, even though I don't feel comfortable about it because I think we are trying to decide which one of the department of the city is right. I hope that this doesn't happen again." CARRAHER "Thank you, your point is well taken." MICHAELIS "The only comment I would like to make, too, is kind of along those same lines. I think it is kind of hard for us to change the rules in the middle of the game. If we have a policy in effect that has been used and utilized for a number of years, there is no reason, all of a sudden, to try to penalize somebody for using that. If we don't like the policy, let's change the policy from here on out, but I don't think it is fair to ask this person to be a scapegoat." GAROFALO "I am looking here at the Subdivision's vote. It was 5-1. Apparently there were 5 who favored the Hold Harmless Agreement at that time. I am kind of curious as to what is changing their minds at this point. Can you enlighten us on that?" MICHAELIS "Primarily the main reason is because the applicant was saying that he would defer it than have it defeated. This was the solution to go through there. So it wasn't a question, necessarily, that we supported the Hold Harmless, it was a question of if that could be worked out between them, then that would be okay. Obviously, that hasn't been worked out between them. But that was the reason for it." PLATT "I agree with Mr. Johnson. I don't like the position that we are in today at all. But those things happen, so we have to live with it, I guess. I am not going to support the motion though. It seems to me that the arguments for it are well taken. I guess my approach is that the lot was platted, the easement was established, the building plans were based on that, and now, we are, in essence, asked to make an exception here. It seems to me that when someone wants an exception that they have to also assume some of the responsibilities for granting the exception. It seems to me here that that is where the Hold Harmless Agreement is legitimate and should be executed. I would support the vacation with the Hold Harmless Agreement, but not without it." CARRAHER "Is there anyone else who would like to speak to this item?" VOTE ON THE MOTION: The motion carried with 9 votes in favor (Michaelis, Warren, Warner, McKay, Johnson, Hentzen, Lopez, Marnell, Carraher) and 3 in opposition (Platt, Garofalo and Barfield). KROUT "This will go to the City Council for a final decision and we will try to get the two departments together to discuss this before we schedule that City Council agenda item." ----------------------------------------------- 3/2. VAC2000-00061 - Request to vacate a protection drainage ditch, described as: A Tract of land, 130 feet wide, extending 65 feet on each side of a center line, described as follows: Beginning at the center of the South line of the N1/2 of the SE1/4 of Section 24, Township 28 South, Range 1 West, and extending thence Northwesterly along a 3 degree, 20 minute curve to the left, to the center of said section, and containing 6¼ acres, more or less. Generally located near 47th Street South and Meridian. REASON FOR REQUEST: To correct an error in the description of the protection drainage ditch right-of-way which will be relocated on the proposed Hidden Creek Addition to match existing improvements. To correct an error in the description of the protection drainage ditch right-of-way which will be relocated on the proposed Hidden Creek Addition to match existing improvements. 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 November 28, 2000, 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 drainage dedication, 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 drainage dedication described in the petition should be approved subject to the following conditions: 1. This Vacation request shall be placed on the same City Council agenda as the Hidden Creek Addition is considered. 2. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. SUBDIVISION COMMITTEE'S RECOMMENDED ACTION: The Subdivision Committee recommends approval, subject to 1. This Vacation request shall be placed on the same City Council agenda as the Hidden Creek Addition is considered. 2. Any relocation or reconstruction of utilities made necessary by this vacation shall be the responsibility of the applicant. CARRAHER "Is there anyone in the gallery who is here to speak on this item? Okay, there is someone here to speak. Mr. Carroll, I am going to yield the floor to you." BARRY CARROLL, Planning staff "This is a request to vacate a protective drainage ditch. It is simply to correct an error in the description and it will be relocated on the proposed Hidden Creek Addition, to match existing improvements. We are in support of this request." CARRAHER "Are there any questions of staff? Thank you, Mr. Carroll. Is the applicant here?" BRAD RILEY "I am with Southborough Partners. This is pretty simple; it is just as he said. We just want to correct the legal description of the improvements there. We are not changing anything. Just so that this is recorded correctly on the new plat." CARRAHER "Okay. Are there any questions of the speaker? Thank you, sir. I am assuming there is no one in the gallery who wishes to address this item either in favor or in opposition. Okay, then I will move it back to the Commission. What is the pleasure of the Commission?" MOTION: That the Planning Commission recommend to the governing body that the request be approved. JOHNSON moved, WARNER seconded the motion, and it carried unanimously (12-0). ----------------------------------------------------------------- CHRIS CARRAHER, 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. ------------------------------------------------------------------------------------ ZONING: 4. Case No. ZON2000-00049 - Caywood, LLC, c/o Matt Eck; Phil Meyer, Baughman Company, P.A. request zone change from "SF-6" Single-Family Residential to "TF-3" Two-Family Residential on property described as: Commencing at the NW corner of the S 1/2 of the SW 1/4 of Sec. 13, Twp. 28-S, R-1-W of the 6th P.M., Sedgwick County, Kansas; thence S00deg 16'59"E along the west line of said SW 1/4, 50.00 feet for a point of beginning; thence continuing S00deg 16'59"E along the west line of said SW 1/4, 519.15 feet to a point 754.00 feet north of the SW corner of said SW 1/4; thence N 90deg00'00"E parallel with the south line of said SW 1/4,208.71 feet; thence S00deg16'59"E parallel with the west line of said SW 1/4, 135.00 feet; thence N90deg00'00"E parallel with the south line of said SW 1/4, 391.29 feet; thence S00deg16'59"E parallel with the west line of said SW 1/4, 619.00 feet to a point on the south line of said SW 1/4; thence N90deg00'00"E along the south line of said SW 1/4, 511.43 feet; thence N00deg16'59"W parallel with the west line of said SW 1/4, 110.00 feet; thence N05deg25'49"E, 60.27 feet; thence N00deg16'59"W parallel with the west line of said SW 1/4, 185.00 feet; thence N90deg00'00"W parallel with the south line of said SW1/4, 213.43 feet; thence N00deg16'59"W parallel with the west line of said SW 1/4, 230.00 feet; thence N12deg26'56"W, 81.93 feet; thence N90deg00'00"W, 114.24 feet to a point on a curve to the left; thence northwesterly and westerly along said curve, having a central angle of 70deg31'36" and a radius of 207.00 feet, an arc distance of 254.80 feet, (having a chord length of 239.02 feet bearing N54deg44'12"W), to the P.T. of said curve; thence N90deg00'00"W parallel with the south line of said SW 1/4, 111.25 feet to the P.C. of a curve to the right; thence westerly and northwesterly along said curve, having a central angle of 62deg57'51" and a radius of 68.00 feet, an arc distance of 74.73 feet, (having a chord length of 71..02 feet bearing N58deg31'04"W), to the PRC. Of a curve to the left; thence northwesterly along said curve, having a central angle of 25deg35'32" and a radius of 207.00 feet, an arc distance of 92.46 feet; thence N00deg16'59"W parallel with the west line of said SW1/4, 285.57 feet; thence N46deg53'56"W, 112,43 feet; thence N89deg56'55"W parallel with the north line of the S 1/2 of said SW 1/4, 266.29 feet to the point of beginning, all being subject to road rights-of-way record. Generally located on the northeast corner of 47th Street South and West Street. BARRY CARROLL, Planning staff, pointed out land use and zoning; and showed slides of the general area. He reviewed the following staff report: BACKGROUND: The applicant is requesting a zone change from "SF-6" Single-Family Residential to "TF-3" Two-Family Residential for a 12.2-acre tract located on the northeast corner of 47th Street South and West Street. The property is currently being platted as the "Angel Fire Addition. The property is undeveloped. This area was recently annexed and is now within the corporate limits for Wichita. The application area is adjacent to Sedgwick County. 47th Street South is the southern boundary between the City and Sedgwick County. The applicant intends to construct 30 "twin homes" (duplexes) or 60 dwelling units on the site. The application area is a "L" shaped parcel. Duplex development is first permitted in the "TF-3" Two-Family zoning district according to the Unified Zoning Code (UZC). Access to the site will be from one opening along West Street and two openings along 47th Street South per the platting process. The application area is characterized by mixed uses. The "Cotton Wood Grove" manufactured home park is located to the north and zoned "MH" Manufactured Housing. To the east is open ground and further east is a residence that is zoned "SF-20." The area located to the west is zoned "LC" Limited Commercial. To the south is a residence and further south is a nightclub that is zoned "SF-20. CASE HISTORY: The property is currently being platted into 30 lots as the "Angel Fire Addition." The MAPC Subdivision Committee approved the final plat on July 13th, 2000. ADJACENT ZONING AND LAND USE: NORTH: "MH" Manufactured Housing Manufactured Home Park EAST: "SF-20" Single Family Agriculture/Residential SOUTH: "LC" Limited Commercial Residential/Nightclub WEST: "LC" Limited Commercial Undeveloped Open Ground PUBLIC SERVICES: Access to the property is via West Street and 47th Street South, two-lane arterials paved to county standard. Traffic volumes along West Street in 2000 were low, rated as 4,866 ADTs for the segment north of 47th Street South. Volumes are predicted to increase to approximately 6,565 by 2030. Traffic volumes along 47th Street South, east of West Street, in 2000 were low, rated as 4,312 ADTs. Volumes are predicted to increase to approximately 5,407 by 2030. There are no improvements included in the C.I.P. for 2000-2009 for 47th Street South near West Street or vise versa. City water and sewer services are not available to the application area at the current time. Municipal water and sewer services will be extended from the "Cotton Wood Grove" manufactured home park that is located north of the application area. CONFORMANCE TO PLANS/POLICIES: The "Wichita Land Use Guide" in the 1999 Update to the Wichita-Sedgwick County Comprehensive Plan identifies this area as appropriate for low-density residential use, and places it within the 10 Year Urban Service Area and also within the 30 Year Urban Service Area. The Plan encourages residential semi-attached dwelling units such as duplexes and town homes. Medium-density residential lots may serve as a transitional land use between low and high residential uses, as well as serve to buffer lower-density residential from commercial uses. The area to the north is shown for commercial uses, east for residential, and west of the application area is shown for commercial. The area to the south is identified as remaining in low-density use. RECOMMENDATION: Based on the information available prior to the public hearing, MAPD staff recommends the application be APPROVED, subject to platting within one year. This recommendation is based upon the following findings: 1. The zoning, uses and character of the neighborhood: The surrounding area is on the urban fringe of Wichita along West Street and 47th Street South. A mixture of commercial and residential land characterizes the land use. The "Cotton Wood Grove" manufactured home park is located to the north and zoned "MH" Manufactured Housing. To the east is open ground and further east is a residence that is zoned "SF-20." The area located to the west is zoned "LC" Limited Commercial. To the south is a residence and further south is a nightclub that is zoned "SF-20. The character of the neighborhood will be one of mixed residential and commercial uses. 2. The suitability of the subject property for the uses to which it has been restricted: The site is zoned "SF-20" Single-Family District that is currently undeveloped. The site could be developed as zoned. However, this area has seen an increase in platting and zoning activity to urban density. Rezoning of this property to "TF-3" would not detrimentally impact adjoining property and would provide for a more appropriate density of development. 3. Extent to which removal of the restrictions will detrimentally affect nearby property. Adjacent properties are zoned "SF-20" Single-Family Residential or "LC" Limited Commercial. Rezoning of this property to "TF-3" Two- Family District will not introduce any new potential uses to the area. 4. Conformance of the requested change to the adopted or recognized Comprehensive Plan and Policies: The request is consistent with the statement that the application area is appropriate for "low-density residential." The Plan encourages the use of medium and high-density residential development as buffers to commercial uses located at intersections. The site is located near the intersection of West Street and 47th Street South. The Plan also discourages the commercial "stripping out" of arterials. 5. Impact of the proposed development on community facilities: Platting should ensure that sufficient street right- of-way is provided on West Street and 47th Street South for future expansion. Other community facilities should not be adversely impacted. CARROLL "The area you see in red is already zoned 'LC'. The application area, as you can see, is around that. To the northeast is undeveloped land at this point. This is technically in the County. There is a nightclub nearby and a residence. To the west is the Sedgwick County yard; and a trailer park to the northeast, and West Street is to the north. The agent, Phil Meyer, with Baughman is here today. The area in question is 12.2 acres. The request is for 30 twin homes or 60 dwelling units. Access to the site will be from one opening along West Street and two openings along 47th Street South. The Angel Fire plat has been completed and the City Council has approved it. You have been provided a fax from an individual who had expressed some concerns about drainage and I am assuming that these drainage issues were addressed in the platting process. The application area is characterized by mixed uses. There is the Cottonwood Grove Manufactured Home Park to the north, zoned 'MH' Manufactured Housing; to the east is open ground zoned 'SF-20'. The area located to the west is 'LC'; to the south is the residence and nightclub we mentioned before. Currently city water and sewer services are not available, but will be extended from the Cottonwood Grove Manufactured Home Park to the north. The Sedgwick County Comprehensive Plan identifies this as appropriate for low density residential uses and it is within both the twelve year urban service area and also within the 30 year urban service area. The plan encourages residential dwellings such as duplex and town homes. Consequently we are recommending approval of this, subject to platting, which is to be completed within 1 year. I will stand for questions." CARRAHER "Are there any questions for staff regarding the item? Thank you, Mr. Carroll. Now we will hear from the applicant." PHIL MEYER "I am with the Baughman Company, agent for the applicant. I think Barry presented this very well. We are requesting duplex zoning on this. The plat hasn't been completed. We have platted the lots large enough for duplex zoning, labeled them 'proposed duplex' when we ran the plat through there. With the commercial zoning in the corner, the industrial zoning across the street, the manufactured home zoning to the north, this is a nice buffer from the commercial and industrial uses to the rest of our subdivision and it just completes our overall development plan. With that, I will answer any questions you may have." CARRAHER "Are there any questions of the applicant? Thank you, Mr. Meyer. We will move it to the gallery. Is there anyone in the audience who is here to speak in favor of this item? Is there anyone in the gallery who wishes to speak in opposition to the item?" KAY ORR "I live at 4905 S. Knight. I believe we have been deleted from the map that is up there. We live on the Ditch. I am not crazy about any more buildings around us, but probably that is what people thought when we moved out there. But my main concern is drainage. We have lived out there since 1977 and we have had water, water and more water, and more water. And we are on septic tanks and wells. We are concerned about that and our basements. Now they have done some work down on the Cowskin, but we have no way of knowing whether it did any good or not. It may have solved our problem we have now, but we are the lowest people around there, and the water is going to come there. We have black gumbo dirt that will hold water for ever, but it will not go down. I just don't know what we can do with any more water, and I am really concerned about this, not only of the drainage, but of the surplus water, because there aren't ditches around there along the roads. They keep telling us they are going to put ditches along West Street, but they never have." CARRAHER "Are there any questions of the speaker? Thank you, Ms. Orr. Is there anyone else in the gallery who is here to speak in opposition to the item?" CLINTON ORR "I live at 1001 West 51st Street South. That was my Mother, so I have some interest in this property we own. It is an acreage, so there is possible future development. Just to reiterate what she said, the drainage is bad. This outline you have of the area here is actually 'the ditch'. I was surprised that there would be any development accepted on that. When I first saw it, I told her that that couldn't be right--that is the ditch. That is a gully that is outlined there. Maybe on either side of it. The photos you have been shown don't show the actual property. They showed the farmland on either side of it, but not what it really looks like because of the ditch. The future run-off in that area, I don't know where you are going to take the water, but as she said, with it being developed out there, the run-off is increased. It used to never get up into the outbuildings and it is now quite extensive. They have done a little work on the lower end and Commissioner Hancock said they would try to relieve where it runs into what the remnants of the Cowskin is there on the east side of West Street. But he didn't know if it was in the C.I.P. or not, but it really should be taken down West Street to what is the Cowskin Creek because it shouldn't be going through here any more. Something needs to be done in the future. And now, we are going to build in the middle of this ditch and increase the run-off. Over the years, you can see the increase in it. And, I am in opposition to the twin-homes. With the proliferation of the mobile home and manufactured homes in that area, I would like to see more of a mixture of the single-family dwellings to protect that part of the area." CARRAHER "Are there any questions of the speaker? Thank you, Mr. Orr. Is there anyone else in the gallery who wishes to speak in opposition to this item?" BOB SMITHWICK "I live at 4922 South Mt. Carmel, Stonebriar Addition. I am not opposing the rezoning of the property in question. What I am here for is the drainage. I have found out, through Chris Carrier, Vicki Huang and Mr. Jennings of the City, that there are two restrictions downstream on the Cowskin Creek that is causing the water to back up into like my area, the Stonebriar Addition and these folks' homes, and stuff like that. Some farmers have put a road across the Cowskin Creek, which makes the water back up. It doesn't let the water flow on through, plus going into the big ditch, the flapper valve there is too small to handle the water. Mr. Carrier is, right now, trying to get these restrictions removed from the creek, but we don't know how long it is going to take. August of last year, during that 8 inch rain we had, there was a bunch of houses that got flooded in the new housing addition where I live because of this restriction. What I am concerned about is that Vicki Huang told me that in this new addition here that they are going to build some retaining ponds. Well, what happens to this access water that comes over the retaining ponds and down the ditch onto Cowskin Creek? She also told me that they are going to make the ditch on the south side of 47th Street on the east deeper, which the water will also run east into our area, into this Stonebriar addition, which is lower than about anyplace there. It is about 4 to 5 foot lower from 47th Street to the south end. Before anything else goes on, I would like to see the Cowskin Creek opened up, cleaned out, dug a little bit deeper to handle all of the water and stop the flooding. As I have said before in other meetings here, I don't want another West Wichita on the south side of town. That is what is happening right now. It happened in August of 1999, it happened on Halloween night of 1998 and I just don't want to see more flooding. I would like this creek corrected; all of the drainage corrected before anything else is done. Also, I would like to ask the developer why, as of Tuesday, where they got their land right here (indicating). As of Tuesday, they had it all laid out to the session to the east of where there is sand. They got the stakes and everything. It is right across the street from 9th Street. It is still there as of Tuesday of this week. There were no stakes or anything else on this part where they are talking about. I would like to know about that. Did they get it mixed up with the wrong area, or what? Also, I would like to know, if these retaining ponds are put in, how do we know, in that area that they won't become mosquito infested ponds, like this north area where they are wanting to build, up by the trailer home. I would like for this Commission and whoever else, to make sure that the drainage is taken care of, the mosquito problems are taken care before anything else is done. Thank you all." CARRAHER "Are there any questions of the speaker?" LOPEZ "Where does the Cowskin run through there?" SMITHWICK "The Cowskin Creek runs….it doesn't show it on this map here, but it runs way down here (indicating) back behind. My area is not even on the map here. It is way back here." LOPEZ "Is that the Cowskin to the left up there in the blue?" SMITHWICK "No. Well, the Big Ditch runs right down through here somewhere (indicating) and the Cowskin Creek runs down through here. Downstream of where I am at, the farmers have put in culverts and put a road over those culverts which is too small to handle the water flow. As I said, in August of last year, we had a bunch of houses to get flooded out in those new homes there. Like I said, I don't want to see another West Wichita on the south side of town. I want to make sure that everything is correct before anything is built and the creek is taken care of." CARRAHER "Are there any further questions of the speaker? Thank you, Mr. Smithwick. Is there anyone else in the gallery who wishes to speak in opposition to this item?" SMITHWICK "I do have some pictures I would like for everyone too see, showing what the water looks like in the back yards in that neighborhood." CARRAHER "Do you want to submit those for the record? Those do become the property of the Commission, do you know that? Okay, if you would just pass those pictures on the end, or give them to Mr. Carroll. Okay, Mr. Meyer, the floor is yours for rebuttal." MEYER "Our office is very aware that drainage is a concern on this. This project has been through the Planning Commission already. The plat has been through City Council although Neil is still holding it right now. We have not recorded it. We know it is a drainage concern because we have worked with both the City Engineering and County Engineering. We have annexed this property into the city; it is in the city limits. Vicki approved our drainage plan as it went through the Subdivision Committee and the Planning Commission. We went and met with the County--Jim Weber and several of his people because he was concerned about the drainage and he asked to review and approve it also. We worked with his department. I am not going to stand here and tell everybody in the audience that we are going to solve their drainage problems because we are not. We are going to help it a little bit because right now that water is shooting right through this property on down to them and we are going to do some detention, which is going to help a little, but there are too many other factors contributing to their drainage problem that we are not going to solve it. What we have done meets the subdivision regulations with our detention ponds and will help their drainage a little bit. I just can't stand here and tell them that their drainage problem is solved because there are too many issues contributing to their drainage problem for us to solve it. I can tell you that both the City and County Engineering departments were concerned about this and watched the drainage plan and worked with our office all the way through the process. I will answer any questions." CARRAHER "Are there any questions of the applicant?" MEYER "I can address his one question. The stakes to the east of this zone change are our first stage, which is the single-family portion. It is our first phase of development, which is all of the single-family portion. That is why the stakes are sitting east of what he saw outlined. It is just our Phase I." CARRAHER "Any other questions? Thank you, Mr. Meyer. I will bring it back to the Commission. Are there any questions or commentary by Commission members with regard to this item? What is the pleasure of 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: The surrounding area is on the urban fringe of Wichita along West Street and 47th Street South. A mixture of commercial and residential land characterizes the land use. The "Cotton Wood Grove" manufactured home park is located to the north and zoned "MH" Manufactured Housing. To the east is open ground and further east is a residence that is zoned "SF-20." The area located to the west is zoned "LC" Limited Commercial. To the south is a residence and further south is a nightclub that is zoned "SF-20. The character of the neighborhood will be one of mixed residential and commercial uses. The suitability of the subject property for the uses to which it has been restricted: The site is zoned "SF-20" Single-Family District that is currently undeveloped. The site could be developed as zoned. However, this area has seen an increase in platting and zoning activity to urban density. Rezoning of this property to "TF-3" would not detrimentally impact adjoining property and would provide for a more appropriate density of development. Extent to which removal of the restrictions will detrimentally affect nearby property. Adjacent properties are zoned "SF-20" Single-Family Residential or "LC" Limited Commercial. Rezoning of this property to "TF-3" Two-Family District will not introduce any new potential uses to the area. Conformance of the requested change to the adopted or recognized Comprehensive Plan and Policies: The request is consistent with the statement that the application area is appropriate for "low-density residential." The Plan encourages the use of medium and high-density residential development as buffers to commercial uses located at intersections. The site is located near the intersection of West Street and 47th Street South. The Plan also discourages the commercial "stripping out" of arterials. Impact of the proposed development on community facilities: Platting should ensure that sufficient street right-of-way is provided on West Street and 47th Street South for future expansion. Other community facilities should not be adversely impacted.) I move that we recommend to the governing body that the request be approved, subject to staff recommendations. MARNELL moved, WARNER seconded the motion. MICHAELIS "I would just like to make a general comment, especially to the people who took the time to come here and speak on this. Thank you for that because we know that it does take time out of your day. But typically, development is not necessarily a bad thing. It can take some drainage issues that are uncontrollable and make them controllable. So as a general rule, just because something is going to go in there does not mean it is bad. The Engineering Departments do look at that pretty hard." CARRAHER "Are there any further commentary or questions by the Commission?" WARNER "I would like to make a comment, too. This is a zone change. It is already zoned Single-family. They can go in there and do the same thing, basically, now, without coming here. What we are doing today doesn't add any more or any less to whatever water problems there are there now. That is why I seconded the motion." CARRAHER "Is there any further commentary? Seeing none, we will move into a voice vote." VOTE ON THE MOTION: The motion carried unanimously (12-0). ------------------------------------------------------------------------ 5. Case No. CON2000-00056 - Cherrywood Construction (applicant); Savoy, Ruggles & Bohm, Mark Savoy (Agent) request a Conditional Use to permit a neighborhood swimming pool, described as: Lot 19, Block C, Tara Falls Addition, Wichita, Sedgwick County Kansas. Generally located on the southwest corner of 127th Street East and Harry. BARRY CARROLL, Planning staff, pointed out land use and zoning; and showed slides of the general area. He reviewed the following staff report: The applicant is requesting a Conditional Use to permit a neighborhood swimming pool on a platted .29-acre tract of land of the "Tara Falls Addition." The application area is a trapezoid shaped parcel and is located at the southwest corner of 127th Street East and Harry Street. The site plan shows a 16-foot by 32-foot swimming pool in the southeast corner of the property. Parking is shown west of the swimming pool with parking slots for eight (8) vehicles. A storage and restroom building is located west of the pool; a tot pool is located to the north and a playground to the southwest (see site plan). Use of the facilities will be limited to residents of the Tara Falls Addition. Access will be from one opening along the east side of Tara Falls Court. This property is zoned "SF-6" Single-Family Residential and is currently undeveloped. Neighborhood swimming pools can be a "use-by-right" if the site is identified at the time of platting and a site plan is submitted for review and approval. After the plat is recorded, a Conditional Use is required. The Unified Zoning Code (UZC) requires "one parking slot per 100 square feet of pool area, plus one slot per 100 square feet of clubhouse area" for a "swimming pool, private/neighborhood." The parking stalls, as shown in the plan, are both within the required 25' front setback from Tara Falls Court. It is estimated that the pool will be 16' by 32' (512 square feet). The bathhouse building is shown to be 12' by 10' (120 square feet) and will be located northwest of the pool. Based upon the projected square footage of the pool and bathhouse [512+120=632 square feet], the UZC requires six (6) parking slots. According to the submitted plan, there are eight (8) parking slots provided, including one handicapped slot. Consequently, there are two more parking slots than is required by the UZC. Many of the patrons will likely walk to their neighborhood pool. Both streets are designed to accommodate on street parking on both sides if needed. An Administrative Adjustment will be required to permit parking within the front yard setback. There is a playground and a kid's pool shown east of the pool. Use of the facilities will be limited to residents of the Tara Addition. There will be access to the site from the east side of Tara Falls Court. The adjoining properties are zoned "SF- 6", Single-Family Residential. The lots, to the north, east and west are all single-family dwellings. The land to the south is undeveloped. The hours of operation for and maintenance of the pool will be determined by the homeowners' association by restrictive covenant. The lighting for the pool will be shielded from the adjacent single family dwellings. There will be a six-foot wrought iron fence surrounding the pool. Paying members of the homeowners association will be given access to the pool. CASE HISTORY: The current site is platted as part of the "Tara Falls Addition" that was approved on June 9, 1998. ADJACENT ZONING AND LAND USE: NORTH: "SF-6" Single-Family Residential Single-Family Residences EAST: "SF-6" Single-Family Residential Single-Family Residences SOUTH: "SF-6" Single-Family Residential Undeveloped WEST: "SF-6" Single-Family Residential Single-Family Residences PUBLIC SERVICES: Tara Falls Court is a two-lane residential street. Traffic volumes are not rated. Water/sewer and other municipal services will be provided to the site. CONFORMANCE TO PLANS/POLICIES: The Land Use Guide of the Comprehensive Plan identifies this property as "low density residential." This residential category provides for the lowest density of urban residential land use and consists of traditional, single-family detached homes, zero lot line units and cluster subdivisions, as well as schools, churches and similar uses found in such areas. One of the objectives of the Plan is to "develop and maintain a system of parkland, open space and recreational facilities which provide a diverse set of recreational opportunities for existing an future residents." RECOMMENDATION: Based on the information available prior to the public hearing, MAPD staff recommends the application be APPROVED, subject to the following conditions: 1. An Administrative Adjustment will be required to permit parking in the front yard setback to eight feet. 2. The applicant shall submit a Landscaping Plan to be reviewed by the Director of Planning. 3. The property will be developed in general conformance with the site plan submitted to and approved by the Board of Zoning Appeals. 4. Development and use of this site for a neighborhood association swimming pool shall be in accordance with all applicable codes, including building and construction codes, landscape ordinance, health codes and operational standards. 5. Violation of the foregoing conditions shall be cause for declaring this Conditional Use null and void. This recommendation is based on the following findings: 1. The zoning, uses and character of the neighborhood: The subject property is situated in the middle of a developing residential area. Surrounding properties are all zoned "SF-6." Access to the site is from a residential street. The lot is within walking distance from the surrounding single-family homes, and the off-street parking requirements minimize the number of parked cars on the local street. Small private areas like this are becoming more commonplace in new subdivisions. 2. Extent to which removal of the restrictions will detrimentally affect nearby property. Locating a neighborhood swimming pool along a local street with residential development will introduce more noise for the nearby residential properties. However, this use is limited by definition to subdivision residents and their guests, and the development of the property in accordance with requirements of the Conditional Use will minimize these problems. 3. Conformance of the requested change to the adopted or recognized Comprehensive Plan and Policies: The Land Use Guide of the Comprehensive Plan identifies this property as "low density residential." This residential category provides for the lowest density of urban residential land use and consists of traditional, single-family detached homes, zero lot line units and cluster subdivisions, as well as schools, churches and similar uses found in such areas. One of the objectives of the Plan is to "develop and maintain a system of parkland, open space and recreational facilities which provide a diverse set of recreational opportunities for existing an future residents." 4. Impact of the proposed development on community facilities: The proposed swimming pool will increase trips to the site, but the impact should be minimal. The neighborhood association will regulate the pool's hours, and access to the facility will be limited to neighborhood residents and their guests, thereby minimizing the need for additional police patrols. With approval of this project, the projected impact on community facilities will be minimal. CARROLL "This is a Conditional Use to permit a neighborhood swimming pool. It is located on the southwest corner of 127th Street East and Harry. It is largely undeveloped. That is the sign--it says 'site of the future pool'. This site is approximately 2.9 acres, currently zoned 'SF-6' Single-Family. It is part of the Tara Falls Addition. This is pretty typical neighborhood pool. You have been provided a site plan. The site plan shows a 16 x 32 foot swimming pool with 8 parking slots. According to our calculations, you would only be required 6 slots and there is shown to be 8 parking slots on this plan. One correction I would like to bring to your attention, on Page 2, about the fourth paragraph down, I had said that a variance would be required to permit parking. That should have read 'an Administrative Adjustment will be required to permit parking within the front yard setback'. One of the objectives in the Comprehensive Plan states 'to develop and maintain a system of parkland, open space and recreational facilities, which provide a diverse set of recreational opportunities'. We feel that this plan meets that, so we are recommending approval with the correction regarding that the Administrative Adjustment would be required. I will stand for any questions that you might have." CARRAHER "Are there any questions for staff regarding this item? Thank you, Mr. Carroll. Now we will hear from the applicant." RANDY JOHNSON "I am with Savoy, Ruggles and Bohm, here on behalf of the applicant. Basically, we agree with the revised recommendations of staff." CARRAHER "Are there any questions of the applicant? Okay, we will move to the gallery. Is there anyone in the audience who is wanting to speak in favor of this item? Is there anyone in the gallery who wishes to speak in opposition to this item? Seeing none, we will move it back to the Commission. What is the pleasure of the Commission?" MOTION: Having considered the factors contained in Policy Statement No. 10; taking into consideration the staff findings (The zoning, uses and character of the neighborhood: The subject property is situated in the middle of a developing residential area. Surrounding properties are all zoned "SF-6." Access to the site is from a residential street. The lot is within walking distance from the surrounding single-family homes, and the off-street parking requirements minimize the number of parked cars on the local street. Small private areas like this are becoming more commonplace in new subdivisions. Extent to which removal of the restrictions will detrimentally affect nearby property. Locating a neighborhood swimming pool along a local street with residential development will introduce more noise for the nearby residential properties. However, this use is limited by definition to subdivision residents and their guests, and the development of the property in accordance with requirements of the Conditional Use will minimize these problems. Conformance of the requested change to the adopted or recognized Comprehensive Plan and Policies: The Land Use Guide of the Comprehensive Plan identifies this property as "low density residential." This residential category provides for the lowest density of urban residential land use and consists of traditional, single-family detached homes, zero lot line units and cluster subdivisions, as well as schools, churches and similar uses found in such areas. One of the objectives of the Plan is to "develop and maintain a system of parkland, open space and recreational facilities which provide a diverse set of recreational opportunities for existing an future residents." Impact of the proposed development on community facilities: The proposed swimming pool will increase trips to the site, but the impact should be minimal. The neighborhood association will regulate the pool's hours, and access to the facility will be limited to neighborhood residents and their guests, thereby minimizing the need for additional police patrols. With approval of this project, the projected impact on community facilities will be minimal.) I move that we recommend to the governing body that the request be approved, subject to staff comments. BARFIELD moved, GAROFALO seconded the motion, and it carried unanimously (12-0). ---------------------------------------------------------------------- 6. Case No. ZON2000-00052 - Matthias F. Eck (Owner/Applicant); Baughman Company PA c/o Terry Smythe (Agent) request zone change from "SF-6" Single-Family Residential to "LI" Limited Industrial on property described as: The North 630 feet of that part of the Northeast Quarter of Section 20, Township 26 South, Range 1 East of the 6th P.M., Sedgwick County, Kansas, lying West of the West line of the Atchinson, Topeka, & Santa Fe Railroad right of way, subject to street right of way on the North and west. Generally located on the southwest corner of 53rd Street North and Arkansas. SCOTT KNEBEL, Planning staff, pointed out land use and zoning; and showed slides of the general area. He reviewed the following staff report: BACKGROUND: The applicant requests a zone change from "SF-6" Single-Family Residential to "LI" Limited Industrial on a 3.6 acre unplatted tract located at the southwest corner of 53rd Street North and Arkansas. The subject property has right-of-way on three sides with Arkansas Avenue to the west, 53rd Street North to the north, and the Atchison, Topeka, and Santa Fe rail line to the east. The applicant proposes to develop the site with industrial uses such as a machine shop. The applicant also has offered a protective overlay to limit the permitted uses on the subject property (see attached). The surrounding area is characterized by a mixture of commercial/industrial and residential development. The commercial/industrial development is interspersed among residential development along 53rd Street North. The properties east of the site across the railroad tracks are zoned "LI" Limited Industrial and are primarily developed with industrial uses interspersed with several single-family residences. The properties west of the site across Arkansas are zoned "SF-6" Single-Family Residential and "LC" Limited Commercial and are developed with single-family residences and a vacant commercial business. The properties north of the site across 53rd Street North are zoned "SF-6" Single-Family Residential and are developed with single-family residences. The property south of the site is zoned "SF-6" Single Family Residential and is undeveloped. The applicant owns the property south of the site and has indicated an intention to develop the property with single-family residences. CASE HISTORY: The subject property is unplatted. ADJACENT ZONING AND LAND USE: NORTH: "SF-6" Single-family SOUTH: "SF-6" Undeveloped EAST: "LI" Industrial, single-family WEST: "SF-6" & "LC" Single-family & vacant commercial PUBLIC SERVICES: The site has access to Arkansas. The site also has frontage along 53rd Street North; however, access is blocked by a utility substation. Arkansas is a two-lane arterial street with traffic volumes of approximately 2,800 vehicles per day. The 2030 Transportation Plan projects that traffic volumes for Arkansas will increase to approximately 3,500 vehicles per day. The projections in the 2030 Transportation Plan assumed that the subject property would develop with single-family residential uses. The "LI" Limited Industrial zoning requested would permit high traffic generating uses such as convenience stores, service stations, drive-thru restaurants, and other auto-related uses. Were the site to develop with these high traffic generating uses, the traffic volumes could increase by as much as 3,600-4,500 vehicles per day. Municipal water service is available to the site via a 12" water main running parallel to Arkansas. Municipal sewer service is not available to site without extending a sewer main from further south along Arkansas. Planning staff recommends that the site be platted to address the potential for the site to generate high traffic volumes and the lack of currently available municipal sewer service to serve the site. At the time of platting, planning staff will be recommending right-of-way dedication, dedication of access control, guarantees for traffic improvements, and guarantees for sewer service extension. CONFORMANCE TO PLANS/POLICIES: The Land Use Guide of the 1999 Update to the Comprehensive Plan identifies this area as appropriate for "Low Density Residential" development. The Industrial Locational Guidelines indicate that industrial development should be located in close proximity to support services and be provided good access to major arterials, city truck routes, belt highways, utility truck lines, rail spurs, airports, and as extensions of existing industrial areas. The Industrial Locational Guidelines also indicate that industrial development generally should be located away from existing or planned residential areas so as not to generate industrial traffic through less intensive land use areas. The request conforms to these locational guidelines since it has access to an arterial street, is located along a rail line, is an extension of the industrial area to the east, will not generate traffic through residential areas, and is recommended for development with site design features that will limit detrimental affects on existing and planned residential development. RECOMMENDATION: Based upon the information available prior to the public hearings, planning staff recommends that the request be APPROVED, subject to platting within one year and the following provisions of a Protective Overlay: 1. The following uses shall not be permitted: correctional facility; correctional placement residence, general; correctional placement residence, limited; cultural group; hospital; recycling collection station, private; recycling collection station, public; recycling processing center; reverse vending machine; airport or airstrip; wireless communication facility; funeral home; heliport; hotel or motel; kennel, boarding/breeding/training; marine facility, recreational; microbrewery; monument sales; night club; pawnshop; recreation and entertainment, indoor; recreation and entertainment, outdoor; secondhand store; tavern and drinking establishment; vehicle and equipment sales; outdoor; vocational school; asphalt or concrete plant, limited; asphalt or concrete plant, general; freight terminal; gas and fuel storage and sales; landfill; mining or quarrying; oil or gas drilling; research services; rock crushing; solid waste incinerator; storage, outdoor; transfer station; vehicle storage yard; wrecking/salvage yard; grain storage; and adult entertainment. 2. The development of this property shall only be permitted if municipally-supplied water and sewer services are provided. 3. A 6 foot high masonry wall shall be constructed adjacent to the south property line. A 15 foot deep landscaped buffer shall be provided along the south property line. The landscaped buffer shall be planted with 1 shade tree or 2 ornamental trees per 30 lineal feet. 4. Light poles shall be limited to a maximum height of 14 feet. 5. Building exteriors shall share uniform architectural character and shall be predominantly earth-tone colors with vivid colors limited to incidental accent. Extensive use of backlit canopies and neon or fluorescent tube lighting on buildings shall not be permitted. This recommendation is based on the following findings: 1. The zoning, uses and character of the neighborhood: The surrounding area is characterized by a mixture of commercial/industrial and residential development. The commercial/industrial development is interspersed among residential development along 53rd Street North. The properties east of the site across the railroad tracks are zoned "LI" Limited Industrial are primarily developed with industrial uses interspersed with several single-family residences. The properties west of the site across Arkansas are zoned "SF-6" Single-Family Residential and "LC" Limited Commercial and are developed with single-family residences and a vacant commercial business. The properties north of the site across 53rd Street North are zoned "SF-6" Single-Family Residential and are developed with single-family residences. The property south of the site is zoned "SF-6" Single Family Residential and is undeveloped. The applicant owns the property south of the site and has indicated an intention to develop the property with single-family residences. 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 accommodates moderate-density single-family residential development and complementary land uses. Properties at the intersection of arterial streets typically do not develop with single- family uses. 3. Extent to which removal of the restrictions will detrimentally affect nearby property: Detrimental affects should be minimized by securing traffic and utility improvements through platting and by the recommended site design features and limitations on permitted uses. 4. Length of time the subject property has remained vacant as zoned: The subject property has remained vacant while the adjacent properties have been developed since the 1950s. 5. Conformance of the requested change to the adopted or recognized Comprehensive Plan and policies: The Land Use Guide of the 1999 Update to the Comprehensive Plan identifies this area as appropriate for "Low Density Residential" development. The Industrial Locational Guidelines indicate that industrial development should be located in close proximity to support services and be provided good access to major arterials, city truck routes, belt highways, utility truck lines, rail spurs, airports, and as extensions of existing industrial areas. The Industrial Locational Guidelines also indicate that industrial development generally should be located away from existing or planned residential areas so as not to generate industrial traffic through less intensive land use areas. The request conforms to these locational guidelines since it has access to an arterial street, is located along a rail line, is an extension of the industrial area to the east, will not generate traffic through residential areas, and is recommended for development with site design features that will limit detrimental affects on existing and planned residential development. 6. Impact of the proposed development on community facilities: Community facilities should not be adversely impacted as long as sufficient right-of-way, access controls, traffic improvements, and utility extensions are provided for through the platting process. KNEBEL "The applicant proposes to develop this site with industrial uses--the likely possibility is a machine shop or some other type of Limited Industrial use. The applicant has also offered a Protective Overlay, which is attached to the staff report to limit the permitted uses. As you can see by the zoning, the surrounding area has some existing Industrial Zoning. Further to the west, there is some more industrial-type uses that are not shown on this. Across Arkansas Street to the west there is a single-family residence, a vacant commercial building. There are single-family residences to the northwest. To the north are the railroad tracks and the drainage canal. To the northeast is some industrial uses as well as to the east, and to the south is vacant farm ground. The Limited Industrial zoning requested in addition to permitting industrial development would also permit some high traffic generating uses such as convenience stores, service stations, and drive through restaurants. Those types of uses, were this site to develop with those uses, it would generate a significant increase in traffic over and above the traffic that exists on the two streets today, which are roughly in the 2,500 to 3,500 vehicles per day range. That traffic would likely double were the site to be developed entirely with those types of uses. In addition to that issue, the site is not currently provided municipal sewer service. The staff report, as it was written, has a recommendation for approval, based on an indication from the applicant that they would be willing to extend sewer service to the site. Since the time the staff report was prepared, the agent for the applicant has contacted his applicant who has indicated that the cost of that sewer extension is too high and he is not willing to bear that. Based on that, it is a significant change in circumstances and staff is changing our recommendation from approval with conditions to a recommendation for denial. This recommendation for denial is based on some changed findings based on the substantial change in circumstances. Those are listed on the memo that I provided to you. I will go through those briefly. The first is the extent to which the removal will detrimentally affect nearby properties. As some of your are probably aware, the groundwater is already polluted from industrial uses in the area. Permitting industrial development on the site without a sanitary sewer system would further exacerbate that problem. As far as conformance to the Comprehensive Plan, the locational guidelines for industrial uses indicate that they should be located in close proximity to support services such as sewer and water and those types of uses. The site, without the extension of sewer to it would not be located in close proximity to those support services and therefore does not comply with that locational guideline. In addition to that, on a site that is not quite on the aerial, located a little bit less than a mile south of here are some municipal water wells that are used for municipal water supply. Permitting industrial development on this site without proper sanitary sewer service; it runs the risk of contaminating that municipal water supply and would have a significant impact on community facilities. Based on those findings, staff is recommending the request be denied." CARRAHER "Are there any questions for staff regarding the item?" MCKAY "How far is the Park City sewer plant from here?" KNEBEL "I don't know the answer to that question specifically. It is probably a little bit closer than the trunk line for the City of Wichita sewer system." MCKAY "Well, it isn't very far at all." KNEBEL "Yeah. It may be half a mile." MCKAY "I think you are just barely missing it there where your 'north' sign is. It is just on the other side of that, I think. Has the applicant been approached on maybe using Park City's sewer line? Or will we not let them use the Park City sewer line?" KNEBEL "I discussed the extension of sewer service to the site with the agent for the applicant. They agreed that they would be willing to do that. As far as the policies regarding who would provide the sewer service, that is beyond anything that I decide. The absence of sewer service is the thing that concerns us." WARREN "Scott, is the major purpose in your change of position here from approval to denial having to do with that Protective Overlay? In other words you would stay with your original if the Protective Overlay would remain in place?" KNEBEL "That is correct. As presented in the staff report." WARREN "And it is his objection to that Protective Overlay that made the change?" KNEBEL "The particular condition in there that the site would not develop without sewer service." WARREN "Okay. And now you are saying he has withdrawn the offer of the Protective Overlay?" KNEBEL "Well, the only offer of the Protective Overlay was a limitation of uses from the applicant. The other four items were developed by staff, including the issue of extending the sewer service." CARRAHER "Are there any further questions of staff in regards to this item? Thank you, Mr. Knebel. We will now hear from the applicant." TERRY SMYTHE "Good afternoon. I am with the Baughman Company, here in behalf of the applicant. When we originally filed this case, we offered the Protective Overlay, which is the uses. There are a variety of uses that we felt was offensive to a lot of areas, and we eliminated them. The issue, I think, that has come up, and the reason why staff's support has been withdrawn is the issue of sanitary sewer. When myself and the applicant first looked at providing sewer, and I will take the blame for this, I was unaware that the sewer was over a mile south. We thought it was a little closer than that. Rough numbers tell me that it is going to cost over a quarter of a million dollars to get the sewer up to this location. To me, the issue is here, I guess, is we kind of have an infill site. This is a piece of property that has been overlooked for years. We are trying to fill it up with something. Now, how do you do this? A lot of infill sites have water and sewer to the site already. In this particular case, because it was originally in the county, it developed in the county, all of the uses that are up there are not on municipal sewer system. They all have their own lagoons or septics or some other method of doing it. How do we encourage that kind of infill? Well, it would be nice if this applicant could afford a quarter of a million dollar sewer, run it up there, give it to all of the homeowners, let them hook to the west. They will have some costs themselves, but I think that the issue is a fairness and equity issue. This landowner is willing to join a petition for sanitary sewer. He has the piece of property and you can see it a little bit to the south here (indicating). He has about a 20 to 25 acre site south of here that we are looking at trying to develop residentially. We can't do that without sewer either. I kind of look at it, I guess, from a win/win standpoint. Here we have a landowner that is willing to join a sanitary sewer benefit district, sign today, get his property on board, is willing to pay his fair share of the cost to get sewer up here. Now, obviously If I was an owner to the west, that would make me nervous, because there is a lot of cost, quite frankly, to hook up to municipal sewer. If I lived up there for years and had a septic or lagoon system that worked fine for my single- family dwelling, I wouldn't be encouraged to join up either, quite frankly. I think the issue is, how do you do it fairly for everybody's benefit. Since the uses today up there are all on their own, so to speak, in terms of sanitary sewer, what I am offering you, I guess, is the ability to develop this 3.6 acre site with a Sedgwick County approved system, whether that be a pump station that lifts it out or some other kind of lagoon system. Allow them to build that. See if we can generate some momentum up in this area. Some people who want to come up here to help develop this infill piece of property. This landowner has the residential to the south. He is not going to risk that land to the south by trying to slip a little 3.6 acre Limited Industrial site on the north. He needs sewer. He just can't afford a $250,000 sewer project himself. What I am offering, I guess, today is that it is a timing matter. You could grant us the zoning today per the original staff report that I agreed to, that we wouldn't develop this site until we had sewer. That may be 5 years from now, it might be never, quite frankly. It depends, I guess, on who is brave enough to stand in front of all of the land owners and say 'let's run a benefit district up here and let's have you pay for it'. I don't know if anybody is that brave to do that. That is one option. He could take this zoning today, agree to the original staff comments and just sit there and bide his time. Or, two, we could try to encourage this kind of infill property--allow him to try to find a user for the site, subject to the use limitations, build it with a Sedgwick County approved sewer system for that one user and then see if, because of his willingness to run a benefit district sewer petition on his side, if there is enough momentum to maybe encourage the folks to the west to do that. That is a tough sell. I can't disagree with that 100%. If I was over there, it would be a tough sell. When I suggest that now, I am tempted to duck. But if you want people on sanitary sewer, at some time, you've got to bite the bullet. Will the city do it on their own ticket? I don't know. I doubt it, but I don't know. It is kind of like paving the unpaved roads in town. There are a lot of them in town, but nobody wants to pay to get it paved. So I guess I am offering two different solutions to this. One, grant us the zoning, subject to platting and subject to somebody dragging a sewer a mile away. Give us the zoning and we will just wait and see how long it takes to develop this infill piece of property. Or two, allow us to build with a Sedgwick County or the Health Department approved sewer system and try to get some momentum up here and see if we could encourage sanitary sewer to be pulled up this far. If there is no real great demand, I don't think you are going to get a whole lot of cooperation of everybody up here to pay more money. I wouldn't. But if you want to get people on a sewer system, at some point in time, you've got to bite the bullet. This applicant is willing to spend some of his money and participate in a benefit district. That is the two options." HENTZEN "Mr. Smythe, has this property been annexed lately, or has it been in the city for a long time?" KROUT "It has been in the city about three years." HENTZEN "Uh, huh. Arkansas Street doesn't go anywhere north of there, does it? It stops." SMYTHE "It stops at 53rd Street." HENTZEN "Yeah. You know what looking at this Overlay you offered, it lists 43 items that you have agreed to not let go in there if they let you have this zoning. I have never seen one with that many limitations. I don't know how you feel about it, but I can't imagine that that owner and the next owner and all of them could ever live with that many exemptions from the zoning that you requested. You understand what I am saying?" SMYTHE "Oh, I understand." KROUT "The $250,000 that you quoted. Is that the total cost of bringing the main up to this property and the laterals to serve the property, or is it just to bring the main up to this property?" SMYTHE "We assume that the sewer was about 37th Street. According to the last sewer maps I looked at, that is about where it stops. I just had one of our engineers look at running a sewer from 37th Street to 53rd Street, kind of like the main. And then everybody else would have hook-up fees. The folks to the west, if you were going to pull them into a benefit district, they would have some laterals going into their back yards--so there would be some additional costs. That is just covering the main. And that is a rough number." CARAHER "Are there any further questions of the applicant?" WARREN "I understand any time you go industrial and you think in terms of a lagoon, you start thinking 'what is going to go into that lagoon'? But in addition to what you have already agreed to restrict yourself from, what can you perceive that the Health Department would be concerned about if we were to approve this with a lagoon and to go ahead and start construction?" SMYTHE "I think the issue is that anything that is done wrong is a potential problem. If I have a machine shop up there, or say if I have a warehouse district there, and if I have people that don't do things properly, people who are throwing 55 gallon barrels on the ground somewhere, it is a potential problem. It is anywhere you have those issues. I don't believe, with the standards nowadays, and with the applicant owning the property to the south, that that would happen. If everything is done properly, it shouldn't be a problem, in my opinion." WARREN "Haven't you pretty well restricted those things that would allow for grease or oils or run-offs of that type out of here? Or are you withholding some of those that you would like to have?" SMYTHE "Well, traditionally a machine shop has the oil and the grease. You need that to manufacture the parts. Those are the things that aren't put down sanitary sewer pipes. If you look at 53rd Street, and it is a very unusual street because you have a very good mix of uses. I don't want to call it the 1950s new urbanism, but you have machine shops, you've got radiator shops, you've got a house, you've got a flower shop. At one time you had a Quik Trip on the corner. It is pretty well a good mix of uses up there, and it seems to do all right. There may be some homeowners out here that will correct me, and I encourage them to do that, but you've got uses that have been there for a long time. As long as I have been in town. They seem to work okay the way they are now. I think with the new health standards in requirements for the lagoons, or whether it is a lagoon or a lift station, I think that that would take care of any potential pollution issue, in my opinion." KROUT "Have you talked to Park City about extending sewer?" SMYTHE "No. I just assumed that since it was in the City of Wichita that we were there." KROUT "I know that when the City of Wichita annexed this area, Park City initially indicated that they were interested in annexing it, but Park City also said, afterwards, that they would be glad to serve this area with sewer. They are always looking for customers. I don't know that the City of Wichita Sewer Department would reject that out of hand because of the distance that 53rd Street is from the newest sewer. I am not saying that they would or wouldn't, but it seems like, at least it is something to explore and it certainly would be less costly for you to extend sewer to the plant." GAROFALO "Mr. Smythe, does the applicant have a potential use for this at this point, or is this just speculative?" SMYTHE "The owner is a real estate agent and he has been approached by a number of people looking for a location for a new machine shop. Nothing is definite. He has just had enough feelers that he is looking for a piece of property that would accommodate that, but there is nobody on the line." CARRAHER "Are there any further questions of the applicant? Thank you, Mr. Smythe. We will now move it to the gallery. Is there anybody in the gallery who wishes to speak in favor of the item? Is there anyone in the gallery who wishes to speak in opposition to the item?" GENE WILSON "I live at 731 West 49th Street North. This piece of property, right now is a catch-all for water. If they build that up, it is going to flood worse on my property, between 49th and 50th Street on Arkansas. There was twenty inches of water over the whole property the last time we had a big rain, and it all came across the street from that property you are talking about. This 44 acres. But that end of it would have to be filled enormously and there is no industrial on this in the City of Wichita. It is all in Park City. I don't think it is quite right to ask people to get Park City to come over and take their sewer off of the Wichita company. If you want it, get it from the City of Wichita." CARRAHER "Are there any questions of the speaker? Thank you, Mr. Wilson. Is there anyone else in the gallery who wishes to speak in opposition to this item?" CHAPMAN MURDIS "I live in the middle of the 40 whatever acres. My house is in that area. I have the farm property there and the farm house. I have three acres in here (indicating). That is my house (indicating) and this encompasses my property. Like Gene said, the drainage would have to come back this way somewhere if they build that area up. There is nowhere for it to go. It is either going to flood the properties to the west or it is going to have to go back out on 53rd Street. There is nowhere for water to go off of that property, and like Gene said, during the last big rain, it did flood back across that street and head over into some of that addition across the street. There is nowhere for water to go there. It never was planned that way. There is a drainage ditch behind there. Everywhere they are talking about commercial properties or heavy industrial, that is completely behind the drainage ditch. There are the tracks, then a drainage ditch, then the industrial. So I mean that is kind of misleading in the way they are talking about it on the deal there. This is the same area that they tried to propose a trailer court in there, and I don't know that there isn't some underhandedness in trying to get a sewer up there so they can do that in the future or do something else, you know. But no matter what they do for drainage or sewer, it doesn't have anywhere for water drainage and it has no way to go. It is right where you thought it was, pretty close up there to where that north line is. Not far anyway from the Park City plant. I don't think it is right for them to bring the sewer line over when they are draining Wichita water into it. I know when they ran the main in there, I had a Park City main there and then they tied it in with the City of Wichita main on water and then they sent me a deal saying it was going to cost me almost $10,000 because I have so much frontage on that property, to hook onto that main, and I had to do it because they contaminated the water coming down through there. But I ended up tying in on city water anyway. I had just put a new septic system in with infiltrators and a new septic tank at about $8,000 this year. So I would be one opposed to putting the sewer line up through there because they would have to come through my front yard. That is my stand on it." MCKAY "Would you point out exactly where your house is?" MURDIS "Well, it is not pictured on there." MCKAY "Just go up and point at approximately where your house is." MURDIS "Well, I would be right down in here (indicating)." MCKAY "So the 25 acres they have been referring to is just north of your place?" MURDIS "Straight north, yeah." BARFIELD "Is your opposition to the development or to the drainage problems there?" MURDIS "Well, we were trying to get a lagoon, which I think is a little nicer than a septic system. They wanted lots in there for single-family dwellings, and it wasn't good enough for a septic system. I don't know what it is going to do on a lagoon system there either. If you go down 8 feet it is all sand, and if the land is already contaminated, I just don't think lagoons will work either. Because, like you said, the well is on to about a mile to the south there that services Park City and other places." CARRAHER "Are there any further questions of the speaker? Thank you, Mr. Murdis. Is there anyone else in the gallery who wishes to speak in opposition to this item? Seeing none, the applicant has two minutes for rebuttal if they choose to take it." SMYTHE "Just a couple of quick comments. Obviously, any time you take a piece of property that is undeveloped and start developing it, you have drainage requirements by the city or the county and you will have requirements for detention ponds if that is what is needed. You will have a lot more cooperation, I think, on trying to get water down along the railroad properties. I guess any time you start developing property, people ask a lot of questions, which is good, and then you start solving some of the issues. As Phil told you earlier, will we solve everybody's problems? No. Hopefully, but I don't see that happening. We will develop under the normal standards that there are today. Detention requirements, if they are applicable, we will abide by them and when the property around Mr. Murdis develops single-family, the same thing will happen there. We will have some detention requirements that we will have to try to honor and we will honor those requirements. We aren't trying to do anything sneaky. We just understand the potential cost of a sewer system, whether it is for a single family owner or for this tract. It is awful darn expensive for somebody to pay for. And if there is anything that is fair and equitable, it is for everybody to pay for it. We are not encouraging a benefit district to be established. We would agree to be in it because I think, in the long-run, it is beneficial for people to be on sewer systems. But as Mr. Murdis said, and if he spent that much money on his system, I think I would be in his same position myself." WARREN "Where you are developing this, as I understand it, is somewhat speculative. Would you think that your client might go along with something like if we allowed a lagoon in there that you would be limited with a Protective Overlay to Light Commercial until such time as sewer was available. Then your 'LI' would kick in. Would something like that work?" SMYTHE "As they say in the (unable to hear) industry, that one has a lot of hair in it. The uses that this applicant is being approached by, I don't believe would be allowed in Limited Commercial zoning." WARREN "But I think I heard you say I would like to have the Industrial zoning even if we can't use it. I thought I heard you say that." SMYTHE "I believe my comment was that we would like to have the zoning in place if we can't drag sewer up there. In other words, we would be willing to wait for 5 or 10 years until somebody hits the horse and gets a benefit district for that use up there. We would be willing to wait." WARREN "All I am saying, though, is instead of waiting 5 or 10 years, you would have a secondary option of land use under Light Commercial, which somebody may come along with that use in mind and you could use your lagoon for that use. I don't care if you want to let it set there for 10 or 12 years. That would be fine." CARRAHER "Are there any further questions of the applicant? Thank you, Mr. Smythe. We will now move it back to the Commission. Are there any questions or commentary regarding the item?" WARREN "I think we do need to encourage infill and I think we need to take a look at that piece of land and say we have to give him some right of use to that piece of land. I don't think we can deny all applications. I would hope that we could work out some kind of a compromise where until such time sewer is available, there would be some limited use of that land with a full extent of economic use kicking in when sewer was available. I would hope that we could work something like that out so that we could encourage the infill and encourage maybe some limited use of it now and full use of it at a later time." GAROFALO "Could I ask Mr. Smythe another question? Mr. Smythe, will you clarify for me and maybe some of the others, are you saying now that you are willing to wait if, say we approve this zoning change with the requirement that nothing be developed until they have sanitary sewer service?" SMYTHE "Yes, that would be an option. That would be the No. 2 option." GAROFALO "Well, I understand that. The reason I am asking is because here staff says that your original agreement to that was recanted. Now you are saying that that is an option." SMYTHE "The recantment part, if that is a word.." GAROFALO "It is a word." SMYTHE "It kind of sounds religious, doesn't it? Recantment. The recantment part was the client's inability to pay that much money. I wasn't aware that the sewer was a mile away, so I recanted that part of it, saying that we would not be able to do that." GAROFALO "That he wouldn't be expected to put it in?" SMYTHE "Yes." GAROFALO "Okay. That answered my question." BARFIELD "Is the Quik-Trip building still standing?" KNEBEL "The building is still there, it appears that it is being used as some sort of storage building." BARFIELD "Then I don't quite understand how that corner could have an 'SF-6' zoning." KNEBEL "The Quik-Trip has Limited Commercial. It is on the southwest corner. The staff report is in error saying it is on the southeast corner." MCKAY "This piece of property sits right over the Equus beds where we get a lot of our water supply for the City of Wichita. I don't feel very comfortable…I am not opposed to the zoning, but I am opposed to the zoning with a septic tank. The statute is 4.5 acres for single family to have a lagoon and this is 3. something in industrial. I don't care where they get the sewer." 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: The surrounding area is characterized by a mixture of commercial/industrial and residential development. The commercial/industrial development is interspersed among residential development along 53rd Street North. The properties east of the site across the railroad tracks are zoned "LI" Limited Industrial are primarily developed with industrial uses interspersed with several single-family residences. The properties west of the site across Arkansas are zoned "SF-6" Single-Family Residential and "LC" Limited Commercial and are developed with single-family residences and a vacant commercial business. The properties north of the site across 53rd Street North are zoned "SF-6" Single-Family Residential and are developed with single- family residences. The property south of the site is zoned "SF-6" Single Family Residential and is undeveloped. The applicant owns the property south of the site and has indicated an intention to develop the property with single-family residences. 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 accommodates moderate-density single-family residential development and complementary land uses. Properties at the intersection of arterial streets typically do not develop with single-family uses. Extent to which removal of the restrictions will detrimentally affect nearby property: Detrimental affects should be minimized by securing traffic and utility improvements through platting and by the recommended site design features and limitations on permitted uses. Length of time the subject property has remained vacant as zoned: The subject property has remained vacant while the adjacent properties have been developed since the 1950s. Conformance of the requested change to the adopted or recognized Comprehensive Plan and policies: The Land Use Guide of the 1999 Update to the Comprehensive Plan identifies this area as appropriate for "Low Density Residential" development. The Industrial Locational Guidelines indicate that industrial development should be located in close proximity to support services and be provided good access to major arterials, city truck routes, belt highways, utility truck lines, rail spurs, airports, and as extensions of existing industrial areas. The Industrial Locational Guidelines also indicate that industrial development generally should be located away from existing or planned residential areas so as not to generate industrial traffic through less intensive land use areas. The request conforms to these locational guidelines since it has access to an arterial street, is located along a rail line, is an extension of the industrial area to the east, will not generate traffic through residential areas, and is recommended for development with site design features that will limit detrimental affects on existing and planned residential development. Impact of the proposed development on community facilities: Community facilities should not be adversely impacted as long as sufficient right-of-way, access controls, traffic improvements, and utility extensions are provided for through the platting process.) I move that we recommend to the governing body that the request be approved, subject to the following: APPROVED, subject to platting within one year and the following provisions of Protective Overlay District #85: 1. The following uses shall not be permitted: correctional facility; correctional placement residence, general; correctional placement residence, limited; cultural group; hospital; recycling collection station, private; recycling collection station, public; recycling processing center; reverse vending machine; airport or airstrip; wireless communication facility; funeral home; heliport; hotel or motel; kennel, boarding/breeding/training; marine facility, recreational; microbrewery; monument sales; night club; pawnshop; recreation and entertainment, indoor; recreation and entertainment, outdoor; secondhand store; tavern and drinking establishment; vehicle and equipment sales; outdoor; vocational school; asphalt or concrete plant, limited; asphalt or concrete plant, general; freight terminal; gas and fuel storage and sales; landfill; mining or quarrying; oil or gas drilling; research services; rock crushing; solid waste incinerator; storage, outdoor; transfer station; vehicle storage yard; wrecking/salvage yard; grain storage; and adult entertainment. 2. The development of this property shall only be permitted if municipally-supplied water and sewer services are provided. 3. A 6 foot high masonry wall shall be constructed adjacent to the south property line. A 15 foot deep landscaped buffer shall be provided along the south property line. The landscaped buffer shall be planted with 1 shade tree or 2 ornamental trees per 30 lineal feet. 4. Light poles shall be limited to a maximum height of 14 feet. 5. Building exteriors shall share uniform architectural character and shall be predominantly earth-tone colors with vivid colors limited to incidental accent. Extensive use of backlit canopies and neon or fluorescent tube lighting on buildings shall not be permitted. MCKAY moved, GAROFALO seconded the motion. WARREN "So that I understand the motion, I think you are saying let's approve the zoning and that the use of the land in support of the building permit would be subject to sewer. I don't think the zoning is subject to sewer. I think the zoning is approved. The ability to build on it is subject to sewer. Is that what I am hearing?" MCKAY "Right. In other words, they can't do anything with it until the sewer line is there." WARREN "But the zoning is approved." MCKAY "I am saying approve the zoning but it can't be used until public sewer is available, regardless of where it comes from." CARRAHER "Are there further questions or commentary regarding the motion on the floor?" JOHNSON "These conditions that are in the staff report are also included in that?" MCKAY "Yes, I am taking the original staff recommendations. That is what I am referring to." VOTE ON THE MOTION: The motion carried unanimously with 12 votes in favor. ------------------------------------------------------------ 7. CON2000-00055 - Willard Crigler Sr. (Owner); GF Enterprises c/o Greg Ferris (Contract Purchaser); Horizon Telecommunications, Inc. and Cricket Communications, Inc. (Applicants); Ferris Consulting c/o Greg Ferris (Agent) request a Conditional Use on property described as: That part of Lot 2, Crigler Addition, Wichita, Sedgwick County, Kansas described as commencing at the S.E. Corner of said Lot 2; thence N 19 degrees 28'46"E, along the southeasterly line of said Lot 2, 264.04 feet; thence N 20 degrees 49'21" W, along the northeasterly line of said Lot 2, 30 feet; thence S 69 degrees 10 '39"W, 15 feet for a place of beginning; thence S69degress 10'39"W, 50 feet; thence N 20 degrees 49'21"W, 60 feet. thence 69 degrees 10'39"E, feet; thence S 20 degrees 49'21"E, 60 feet to the place of beginning. Generally located north of 24th Street North and east of Gentry. PLATT "As I have in the past antenna cases, I will step down from this one because of the conflict of interest." SCOTT KNEBEL, Planning staff, pointed out land use and zoning; and showed slides of the general area. He reviewed the following staff report: BACKGROUND: The owner is seeking a Conditional Use to permit the construction of a 125-foot high monopole tower (see attached elevation rendering) by Horizon Telecommunications, Inc. for use by Cricket Communications, Inc. The proposed site is zoned "SF-6" Single-Family Residential. Wireless Communication Facilities over 65 feet in height in the "SF-6" Single-Family Residential zoning district may be permitted with a Conditional Use. The proposed tower would be sited on a 3,000 square foot area located north of 24th Street North and east of Gentry on a vacant residential lot. The site plan (attached) depicts a 60-foot by 50-foot compound with the tower located in the center of the compound and the ground-level communication equipment located in the northern portion of the compound. The site plan depicts a chain link fence around the entire compound. The site plan shows that existing trees on the site will be maintained and supplemented by shade trees along the south property line, shade trees north of the compound, and evergreen trees along the northern and southern boundaries of the compound. The site plan shows that