BOARD OF ZONING APPEALS
Minutes
October 22, 2002

The regular meeting of the Board of Zoning Appeals of the City of Wichita, Kansas, was 
held at 1:30 p.m., on October 22, 2002, in the Planning Department Conference Room, 
Tenth Floor of City Hall, 455 N. Main, Wichita, Kansas.
	
The following Board members were in attendance:
JAMES RUANE, JAMES SKELTON, JOHN ROGERS
RANDY PHILLIPS, BICKLEY FOSTER, and ERMA MARKHAM in at 1:47 p.m.

SHARON DICKGRAFE – Assistant City Attorney present
J. R. Cox -- Office of Central Inspection present.

The following Planning Department staff members were present: 
DALE MILLER Secretary, 
SCOTT KNEBEL Assistant Secretary, 
ROSE SIMMERING, Recording Secretary.

JAMES RUANE, BZA Board Chair:  Brings BZA meeting to order at 1:30 p.m.  We 
are here to determine only one issue today, which I assume must be of great importance 
to all of you or you wouldn't be here.  We have some procedural and other housekeeping 
items that we will go through first, but this is an unusually large crowd for us.  I really 
want you all just to remember to be respectful of others, and not to interrupt, not to try to 
speak over them.  We need to take a very precise record of these proceedings, and that 
will be impossible if more than one person is speaking at a time.  

ROSE SIMMERING:  Calls role.  There is a quorum.

RUANE:  First Item on our Agenda is approval of minutes from our meeting of 
September 24, 2002, any discussion or modification to those minutes as submitted?  If 
not let's have a quick motion and move on.

ROGERS moves SKELTON seconds to approve BZA meeting minutes of 
September 24, 2002.

MOTION carries 5-0.

RUANE:  Therefore, we now move onto Item 2 on our Agenda.  This is BZA Case 2002-
00061.  It is an Appeal of an administrative interpretation by the Zoning Administrator 
dated, August 22, 2002 regarding Recreation and Entertainment, Indoor (Dickinson 
Theatre) for DP-104, that is the Community Unit Plan for Oak Cliff Estates.  Scott from 
city staff will begin this and will outline the protocol as far as the sequence of events.

SCOTT KNEBEL, Planning Staff:  The item before you, as you mentioned, is an 
Appeal of an Administrative Interpretation of DP-104, which is the Oak Cliff Estates 
Community Unit Plan.  This property is zoned "LC" Limited Commercial, and is located 
at the northwest intersection of Maple and Maize, as shown here.  The subject property is 
outlined in black.  It is a portion of Parcels 2 and 3 of this Community Unit Plan.  You 
can see from the aerial that the property is currently vacant.  It has commercial uses to the 
south, commercial and multi-family uses to the east, and then lower density duplex type, 
and condominium type development immediately to the west, and to the north, and then 
some single family uses in the area surrounding it that are just barely in the picture here.  

This is the plan.  You can see the two large parcels are Parcels 2 and 3 on that plan.  This 
is looking at the property.  This is the west half of the property.  This is looking east 
across the property towards Maize Road.  This is the commercial property that is located 
on the north side of Maple, just immediately south of the property, and these are the 
commercial uses on the south side of Maple.

RUANE:  Scott, let me interrupt for a moment.  Can you all see?  Would you dim the 
lights please?  Is that the problem, or is it angle?  I would encourage you to get up and 
move that way so that you can see.

KNEBEL:  This is looking down at the properties on the southwest corner, and then 
these are the residential uses west of the subject project, and then the residential uses to 
the north.  

Let me go through the packet that you have of material.  The first item that you have is a 
memo from the Board of Zoning Appeals Attorney that summarizes the issues, and 
outlines the Boards options.  Essentially, the Board has the options of affirming the 
interpretation, reversing the interpretation, or modifying the interpretation, to put it 
simply.  

It is a little more complex than it is outlined in the memo there.  To that end, there are 
sample motions both to reverse and to affirm in this.  Those motions would need to be 
based on specific facts that are going to be forthcoming at this hearing that you would 
need to make as a part of that motion.  

After those sample motions is the letter of appeal from the applicant's agent, Austin 
Miller, and it outlines the basis upon which they are filing this appeal.

Then there are a couple of letters that are the interpretation.  There is a letter dated 
September 13, 2002, which essentially states that the letter dated August 22, 2002, is the 
interpretation that the Zoning Administrator for the City of Wichita made, and that letter 
was written in response to a letter dated September 3, 2002, from Austin Miller 
requesting further clarification of the interpretation that was written on August 22, 2002.  

The interpretation letter dated August 22, 2002, outlines in pretty specific detail the 
reasons behind the interpretation, and essentially at the end of the letter it states that the 
C.U.P. DP-104 Oak Cliff Estates does not allow theaters by right on Parcels 2 or 3, and 
that a C.U.P. Administrative Adjustment or C.U.P. Amendment would be required to 
allow that use on this property.  So that is the issue that is being appealed today.  

The next letter in your packet is the original request for the interpretation that outlines, 
from the Appellant's standpoint, the reasons that they feel like the Zoning Administrator 
should have interpreted that the theater or indoor recreation uses are permitted uses in the 
C.U.P.  There is a restrictive covenant in the packet that the Appellant has offered, as I 
guess, I am not really sure what the purpose is there, I guess just to demonstrate that the 
Appellant is willing to mitigate some of the negative impacts that this theater use might 
have.  

There is a number of materials that the Zoning Administrator used to base his 
interpretation upon, including the Building Permit application, some typewritten 
transcript of some notes that the Zoning Administrator took, and then the handwritten 
version of notes regarding comparable Community Unit Plans that were reviewed.  Then 
there is information from the Traffic Engineer regarding the traffic impact, and then 
copies of the C.U.P.'s that are referenced in those notes.  Then at the end of our packet is 
the Oak Cliff Estates Community Unit Plan, and it's associated adjustments that have 
occurred since it was adopted back in 1982.  

The appeal process works such that after I introduce the item, which I am about to wrap 
up here, the Appellant is given 15 minutes to state their case.  The way that the appeal 
process works is that the Zoning Administrator is presumed to be correct in their 
interpretation, and it is the burden of the Appellant to demonstrate to the Board through 
this hearing process that the interpretation was not correct.  

After the 15 minutes that the Appellant is given to state that case, the Zoning 
Administrator is then given 15 minutes to respond to the Appellants presentation, and 
then after that it is open to public comment, and each speaker is given 5 minutes.  Then 
the hearing is closed, and the conversation is among the Board, and then the Board would 
then make it decision.  

I believe this is correct, right Sharon, the Board has up to 40 days to render a decision.  It 
is not a requirement that a decision be made today.  The Code does provide for a time 
period of 40 days to render a decision?

SHARON DICKGRAFE, Assistant City Attorney, BZA Attorney:  That is correct.

KNEBEL:  You do have a request from the Appellant that he be afforded 5 minutes of 
rebuttal time at the conclusion of the Zoning Administrators presentation, and then 5 
minutes of rebuttal at the close of the public comment section.  That is not provided for in 
the Board's Bylaws and would require that the Board make and pass a motion to set aside 
their rules of procedure to add this, if that is the will of the Board.  With that I will close 
my comments and take questions if you have them.

RUANE:  Any questions from the Board for Scott?  Thank you Scott.  We need to make 
a decision with regard to the request for rebuttal time.  Question of the applicant, Tim, 
would you be willing to use any of the 15 minutes allotted under our general rules for that 
rebuttal?  

AUSTIN MILLER, INC., %TIM AUSTIN, 142 N. Emporia, Wichita, KS 67202:  I 
would prefer to have 5 additional minutes because it is a fairly complicated issue and I 
feel that I will take the full 15 minutes just making my presentation.  

RUANE:  So, 15 minutes, and plus 5 minutes, and then plus 5 more minutes?

AUSTIN:  Yes, the 5 minutes after the neighbors is just kind of iffy.  It depends on what 
Mr. Ferris says, so I have a chance to respond to him.  Other than that I am not sure that I 
will need more time, maybe a couple of minutes.

RUANE:  I wanted to understand your request.  

AUSTIN:  Thank you.

BICKLEY FOSTER:  Mr. Chairman, do you need a motion now to decide that?

RUANE:  No, I am trying to figure out what the request is.  Kurt, on behalf of the City of 
Wichita would you request or do you need any additional rebuttal time?  

KURT SCHROEDER, SUPERINTENDET OF CENTRAL INSPECTION:  If he is 
going to get the rebuttal time.  I don't think that I need 5 minutes, but maybe just 2 or 3 
minutes possibly if some other question arose that I might want to address.

RUANE:  Okay, Thank you very much.  Now I will bring the comments up here.  Scott 
has done a very good job of describing what our general rules are.  Rose do you have a 
question?

SIMMERING:  It is hard to hear today.  I don't know is the volume up?  I know Mr. 
Ruane when you speak the arrow is not going as high as it should.

RUANE:  Who runs the soundboard?

MILLER:  Maybe if the Board would be sure to speak into the microphones.

RUANE:  Is that better?

SIMMERING:  Yes, Thank you.

RUANE:  For the Board, we need to determine what if any exception to our general rules 
to make in response to this request.  I would first like to hear us discuss before we go 
right to a motion.

FOSTER:  This is an important topic, and it certainly deserves to take the time necessary 
to do it.  This request has been studied by the staff and by the applicant for some time.  It 
seems to me that it is not an unreasonable request.  We only have one item on the Agenda 
here today.

JAMES SKELTON:  I believe everything is reasonable as well.

RUANE:  Everything including their rebuttal time?

SKELTON:  Yes, sir.

JOHN ROGERS:  I would like to see the time allowed to both parties be equal.  

RUANE:  Implied within this is a determination or a question of who will have the last 
word.  Are there any sentiments about that from the Board?  Let's make a plan so that we 
can get started.

FOSTER:  Procedure I believe has generally been to allow the applicant to have the last 
say, and we can always ask questions of the staff as part of our job.  

DICKGRAFE:  It would be my thought that because this can be reviewed on appeal that 
the Board would want to give both sides the adequate opportunity to make the record. 
Since it is the applicant's burden, it would probably be appropriate for him to have last 
say or the last word to the Board unless there were additional questions.

RUANE:  Thank you for that advice.  Following up on that it seems a motion would be 
in order.

ROGERS moves FOSTER seconds, to give both parties an additional 5 
minutes at the end for additional comments.

RUANE:  Okay, can you expand on that?  Each party, appellant and city staff, would 
each have 15 minutes?

ROGERS:  Plus an additional 5 minutes.

RUANE:  In what sequence?

ROGERS:  15 minutes first, and 5 at the end. 

RUANE:  But of the 5 minutes in what sequence would those follow under your motion?

ROGERS:  It would be as Sharon stated, from the applicant the last 5 minutes.

RUANE:  Okay, does everyone understand the motion? Any further discussion?

ROGERS moves FOSTER seconds, to give both parties an additional 5 
minutes at the end for additional comments with the applicant going last.

MOTION carries 4-1.

RUANE:  So that you understand the procedure, first we will hear from Mr. Austin, for 
15 minutes on behalf of the applicant.  Then we will hear from Kurt Schroeder on behalf 
of the Zoning Administrator's office for 15 minutes.  Then we will hear from Mr. Ferris 
representing a group of landowners.  Then we will hear from others who have signed in 
on the sign in sheet.  If you have not already done so, I would encourage you to do so 
now.  I remind you at this point that when you address us, you need to come to the 
podium.  You will need to introduce yourself, provide us with your address, etc., for our 
minutes and for the record keeping that we need to do.  I think I have covered it all, and 
these rebuttals will follow the homeowners or landowners comments and they will go in 
order of Kurt first and Tim second.  It would then appear that we are ready for the 
statements of the applicant.  

Erma Markham in at 1:47 p.m.

TIM AUSTIN:  There is one bit of housekeeping that I would like to discuss, Mr. 
Chairman. It has come to my client's attention that Mr. Randy Phillips may be the 
architect of record for Warren Theaters.  We certainly respect Mr. Phillips' ability in the 
community.  He is very well respected.  But my clients are a little uncomfortable that 
there may be a perception that something would be amiss.  We are not sure if Mr. Phillips 
is comfortable making a decision on our presentation, and we would ask that we discuss 
that before I begin my presentation.  We would like Mr. Phillips to recuse himself.

RUANE:  The request for Randy Phillips to recuse himself from the Board today?  
Procedurally how would that be determined?  Is that for the Board to make?

DICKGRAFE:  Generally, it is going to be up to Mr. Phillips to make a determination as 
to whether or not he has a conflict of interest.  Generally, an economic interest in another 
business is not necessarily an absolute factor for him to declare a conflict of interest.  The 
Bylaws provide that the member declaring a conflict of interest ask that they abstain from 
voting.  So it is entirely up to Mr. Phillips as to whether or not that he believes that there 
is a conflict of interest and any interest that he feels needs to be disclosed to the Board 
before he votes on this matter should he determine to vote.

RUANE:  Thank you for that information.  Randy, what say you?

RANDY PHILLIPS:  I have looked at this, and I don't feel that there is a conflict of 
interest. I can appreciate their stance.  For the record, we have represented Mr. Warren's 
interest as far as architects for almost all of his projects.  At the same time, we were also 
involved in the North Rock where we represented Dickinson Theatre at that time.  As far 
as I am concerned, I am not trying to rule on whether it is an appropriate project or 
whether it should be there or not.  I am here basically to cast a vote either for or against 
the interpretation as the appeal.

RUANE:  Record has been made.  Let's start with your 15 minutes of allotted time.

TIM AUSTIN:  As part of my initial presentation, one thing that I would like to do is 
just clarify some things that we believe to be erroneous.  I would refer you to our August 
12th letter to Mr. Schroeder; the first page, paragraph one.  Specifically, the request was 
"In accordance with Sections V-E.15 and V-H of the Unified Zoning Code for Wichita-
Sedgwick County, we request the use of Recreation and Entertainment, Indoor, be 
permitted by the Zoning Administrator on Parcel 2 and 3 of the community Unit Plan.
 
I think it is very important that we understand that while Dickinson Theatres is involved 
and quite likely will build a theatre at that site should we be successful in our appeal,  
technically the request is for Recreation and Entertainment, Indoor.  A theatre is a use 
that falls under that category, but so do bowling alleys, bingo parlors, video arcades and 
some other uses.  

We feel that point needs to be clarified, and to that extent Mrs. Dickgrafe's memo on the 
front page the numerated paragraph #1 states, "Failing to conclude that the proposed 
theater was similar and no more intensive use than those allowed by the language in the 
CUP" again the request is not about a theatre, it is about Recreation and Entertainment, 
Indoor.  

Under Recreation and Entertainment, Indoor under the Zoning Code, page 26, if you care 
to follow along, Recreation and Entertainment, Indoor as defined in the Zoning Code 
means a privately-owned establishment offering recreation, entertainment or games of 
skill to the general public or members that is wholly enclosed in a building.  Typical uses 
include bowling alleys, indoor theaters, bingo parlors, pool halls, billiard parlors, video 
game arcades, racquetball and handball courts, and amusement rides.  It does not include 
buildings typically accessory to a subdivision that are for use by the subdivision's 
residents and their guests.

Again the theatre is just one identified use; however, under those uses that are all lumped 
in under Recreation and Entertainment, Indoor, those uses are all treated equally.  None 
of the uses anywhere in the Zoning Code are identified separately or treated differently in 
any fashion.  An example of that might be a car wash.  If you are familiar with car 
washes they are allowed by right in "LC" Limited Commercial Zoning except for when a 
car wash is within 200 feet of residentially zoned property.  Then it becomes a 
Conditional Use subject to conditions and a public hearing.  

Again, that is a very important distinction.  City staff has, and their position has been, that 
it is about a theatre, and that is more intensive, and our feeling is that if the theatre was so 
much more intensive of a use historically when the Zoning Code was developed, that it 
would have been identified separately as a separate use which under "LC" Limited 
Commercial zoning.  There are 83 uses that are listed.  Theatre is not one of those.

We believe that based on language of the C.U.P., where it states that a shopping center is 
allowed, that Recreation and Entertainment, Indoor is an allowed use under shopping 
centers.  To that extent I have a handout that shows typical uses within a shopping center.  
One thing that you will note under the Zoning Code that shopping center in and of itself 
is not defined.  Many of the older community unit plans that were established in the late 
1970 early 80's and even a little bit into the early 90's included language for shopping 
centers, but shopping center itself is not defined under the Zoning Code.  The handout 
that I have given you is a document that is from a book called "Shopping Center 
Development Handbook" that was published in 1977 by the Urban Land Institute, and 
you can see that on the second page of that handout there are tenant classifications for 
shopping centers, and I have noted on there that typical uses included in shopping centers 
do include Recreation and Entertainment, Indoor uses and to the bottom of that page, I 
have arrowed bowling alley, cinema, service station, ice skating rink, and arcade, 
amusement center, so we believe that to be important.

The question then becomes are those uses that I have identified, or that are identified by 
this book, the Urban Land Institute book, consistent with shopping centers and uses that 
have been developed in the City of Wichita?  I have another handout.

RUANE:  For the record, all of these handouts, as well as the most recent 
correspondence that was on top of our booklets as we walked in, will be made a part of 
the record on this item.

AUSTIN:  The handout is a spreadsheet that I have developed in doing some research of 
some community unit plans.  On the far left column you will see that there is CUP # that 
is identified.  There is an approval date in the second column, as to when that community 
unit plan was adopted, the name of the community unit plan, its general location, the 
parcel number in question, the second to the last column is just what the uses were from 
that C.U.P. and the last column is the Recreation and Entertainment, Indoor use that has 
either existed in that shopping center or is presently in existence today.  

Just to read it into the record, the first one was DP10, approved in 1988, and that may be 
when it was first amended, Wichita Mall Shopping Center, on east Harry, Parcel #1, the 
uses include Shopping Center including department stores, drug stores, clothing stores, 
variety stores, jewelry shops, and restaurants. Many of you will remember that there was 
a theatre located in that building.  That C.U.P. was never adjusted nor amended to include 
that use it was just a function of shopping center.  

The second one was DP12, approved in 1987, the Kellogg Mall Commercial, and that is 
Towne East, the northwest corner of Kellogg and Rock Road, Parcel 11, is the Village 
Fashion Center, the uses from the Community Unit Plan are Retail sales, offices, 
restaurants (exclusive of fast food types) and private clubs.  Again you can see that the 
Recreation and Entertainment, Indoor use that was located there for a number of years 
was the kids Discovery Zone.  

The third one was DP16, which was approved in 1984, Seneca Square Shopping Center, 
northwest corner of 31st & Seneca, Parcel 1 the uses are simply Shopping Center, and 
related uses.  Currently there is a Bingo Parlor that is operating in that shopping center.  
Again review the records for the city.  There was never any administrative adjustments or 
amendments to allow that use.  

The fourth one was DP21, which was approved in 1985, The Westway Shopping Center, 
southwest corner of Pawnee and Seneca, Parcel 1 the language for that particular Parcel 
is almost verbatim for the one for ours.  It talks about shopping center and you can read it 
there.  Shopping Center and associated tires, batteries, and accessories stores, 
supermarkets, financial institutions, offices, personal services, and retail sales as 
permitted by zoning district.  Again, there was a theatre in operation in the early 80's in 
that shopping center.  

The fifth on was DP43, approved in 1981, The Kincaid Community Unit Plan, most of us 
know that as the Pawnee Plaza Shopping Center, at the southeast corner of Pawnee & 
Broadway, Parcel 2, simply says Shopping Center and the recreation, entertainment use 
that was allowed there was a 4 screen theatre that was actually operated by Dickinson for 
many years.

Lastly, was DP67, approved in 1987, which is the Northbourgh Shopping Center, 
otherwise know as Brittany Center, located at the southeast corner of 21st & Woodlawn 
Parcel 2, states Shopping Center and/or offices, professional, personal services, 
comparison and convenience shopping, and parking. A racquetball club was located there 
for a number years and currently there is a business that operates the laser tag.  Those 
would fall typically under recreation entertainment uses.  Again, with all the ones 
previous to it, there was never any administrative adjustments or amendments to allow 
those uses in those.

Given the historical nature of shopping centers not only locally, but nationally, and the 
types of uses, we believe Mr. Schroeder erred to that extent.  Just as a confirmation for at 
least some of the theatres, I will hand out a page out of the yellow pages in the 1982 
Southwestern Bell Telephone Book, which just shows that the theatres were in existence.  

There has been some discussion about historical interpretation based on the history of 
community unit plans in this community.  One thing that I would note that the way that 
we do community unit plans, or the way that they were done in 1977 and early 1980's, is 
different than how we do them today.  When they were developed in the 1980's, typically 
uses were identified and they were fairly limiting.  They might name only 8 or 9 uses out 
of the typical 80 permitted by the commercial designation.  Today's commercial 
community unit plans usually say all "LC" uses except for, and we generally exclude out 
those items that are typically viewed as undesirable.  So, I would submit to you that in the 
last five years there have been 15 commercial community unit plans that have been 
approved by the Planning Commission, and also by the City of Wichita and the Sedgwick 
County, and every one of those commercial C.U.P.'s would allow a theatre in there, or 
Recreation and Entertainment, Indoor, in there by right.  I think that is a statement that 
says basically that the types of uses with Recreation and Entertainment, Indoor are 
acceptable for these types of commercial developments.  Many of those C.U.P.'s, which 
our firm has worked on a number of them, are surrounded by residential property, and we 
believe this to be consistent with the findings of the Planning Commission and the 
Zoning Code.  

Another area where we believe Mr. Schroeder erred, we believe Recreation and 
Entertainment, Indoor to be less intensive than the allowed uses.  We base that upon a 
definition of intensity, which is on page 19, of the Zoning Code.  If you had a chance to 
read Mrs. Dickgrafe's memo it talks about references to less intensive or more intensive 
uses refer to the zoning districts in which such are first permitted.  Use "X" is to be 
construed as more intensive than Use "Y" if Use "X" is first permitted by-right in a 
zoning district that is less restrictive than the district in which Use "Y" is first permitted 
by-right. The City's point, or Mr. Schroeders' point, is that definition is not applicable to 
properties that have a community unit plan on them.   We disagree with that.  What the 
definition says is that those community unit plans or other special purpose districts, are 
not included in the hierarchy, but the "LC" or the underlying zoning is in fact included in 
the hierarchy.  The zoning can exist without the special purpose districts, but the special 
purpose districts cannot exist without the zoning, so we believe that to be consistent.  

Furthermore, if you go to the portion of the Zoning Code where the Planning Director on 
Administrative Adjustment to the Zoning Code, under that section he is specifically 
referred to the definition of intensity in the Zoning Code.  While Mr. Schroeder may not 
believe that the Zoning Administrator does not have to rely on the definition, certainly 
the Planning Director, which is another administrative process certainly has to rely on 
that definition.  That definition is black and white.  It is not subjected to opinion.  It is 
very straight-forward, and we believe it to be correct.  That administrative adjustment 
criteria can be found on page 199 of the Zoning Code.  Also, one of the letters that was 
submitted to you, or was faxed up for you to take a look at ahead of time, was from 
David Yearout, who is an AICP planner and former employee of the Metropolitan Area 
Planning Department.  He writes zoning regulations for various communities, and his 
letter was one of support of our request.   

RUANE:  Tim, you have less than one minute left.

AUSTIN:  Thank you.  His professional opinion was that we were correct in our 
interpretation.  Again he is a former employee and handles this type of work 
professionally.  The other thing that we think Mr. Schroeder erred on was not 
acknowledging the restrictive covenant.  The community unit plan, as it currently exists, 
is one of the older ones.  It has less restrictions.  It could have a 90,000 square foot 
shopping center on it with none of the buffering that we have offered to do should you 
find our request to be acceptable.  I could probably address some of those other issues on 
the rebuttal, but basically that is our case.

RUANE:  Why don't you stay there.  Are there any questions for Tim at this point?   
Tim, in the exhibit that you provided that inventories the community unit plans approved 
involving shopping centers, and theaters are all of those theaters interior, inside the 
shopping center?

AUSTIN:  I believe that is probably correct.

RUANE:  You mentioned that there could be a 90,000 square foot shopping center built 
on this C.U.P.?

AUSTIN:  That is correct.

RUANE:  As things exist right now?

AUSTIN:  As things exist today, yes.

PHILLIPS:  Since you brought up the question about the type of theaters and whether 
they are inside or freestanding, how many of them exist today?

AUSTIN:  At present, none of them exist today.

PHILLIPS:  When they did exist, what size of facility are we talking about, number of 
screens versus square footage?

AUSTIN:  I believe the largest one was at Pawnee Plaza, which was four screens.  As far 
as square footage I am not aware of what those are.

PHILLIPS:  We are talking about an 18-screen theatre here?

AUSTIN:  A 12-screen theatre.

RUANE:  In your opinion, is there a difference between an indoor theatre and a movie 
theatre complex?

AUSTIN:  No.  I think in answer to your question, and I thought about this a little bit,  
about a theatre being part of a shopping center, free standing, and is there a difference?  
Just as an analogy, one of the CUP's that I looked up previously was DP-63, which was 
at the northwest corner of 13th & Tyler.  The uses on that CUP are similar to the rest of 
them, and it was approved in the late 80's, but it talks about shopping center, but as we 
know it is a free standing Dillons grocery store, so if there is going to be a distinction 
between free-standing or a theatre as a part of a shopping center then in my opinion there 
has already been a distinction made between a free standing grocery store and one that 
may be part of a shopping center.  I don't think that there is a difference based on my 
research.  

FOSTER:  Mr. Austin, when this C.U.P. was approved, we are talking about what year?

AUSTIN:  I believe it was approved in 1982 or 1983.

FOSTER:  Have you done any research to see what the "LC" district looked like at that 
time?  

AUSTIN:  I have not.  

FOSTER:  I will reserve that question to ask staff later on.  Would you say that your 
main point is that your tie between the C.U.P. and the theatre is from the shopping center 
to the Recreation and Entertainment, Indoor definition within the present "LC", that that 
is the tie… the point that you are making?

AUSTIN:  That would be one connection, certainly.  That would be true because theatres 
are under "LC" in the current Zoning Code, and absent the C.U.P., if it was zoned "LC", 
the theatre could build there by-right.  The second part of that connection, though, is that 
consisting interpretation of the Zoning Code on how it has been applied within the City, 
and that was the purpose of that handout when you look at Recreation and Entertainment, 
Indoor uses.  Can you make that same connection, and certainly with the examples that I 
have given you, especially with respect to like Seneca Square where there is a Bingo 
Parlor, it would be consistent with what has transpired.  

FOSTER:  In your research and going through the different C.U.P.'s that you showed us, 
did you find that any of them had been decided by the Board of Zoning Appeals or by an 
adjustment or where they simply applied and got a permit to do it?

AUSTIN:  On the ones I gave you, there was no indication of any administrative 
adjustments or BZA actions.  As you know the City staff typically notes that on the face 
of the C.U.P. document, and there were no notations on any of those.

RUANE:  No other questions at this time?  Thank you Mr. Austin.  Mr. Schroeder we 
would like to hear from you now please.

KURT SCHROEDER:  I guess I will try to reply to some of those things that Tim 
talked about and maybe add a couple of other comments here.  I think one of the key 
issues that he has talked about is this idea of intensity of uses within a community unit 
plan as opposed to simply within a zoning district classification.  I think in your handout 
that you have from Sharon Dickgrafe we have basically been reading this intensity of use 
definition where it says "Special purpose based districts and overlay districts are not 
included in the Zoning hierarchy" to mean something different than what Mr. Austin is 
talking about in his presentation to you. 

We basically see all the special overlay districts, and you can see that as you read the 
purpose of the community unit plan is to more strictly control the development on the site 
and it always has been.  Even though it may be zoned general commercial or limited 
commercial there would be more restrictions on the uses in that community unit plan.  It 
kind of depends on what is around that community unit plan when it is developed, how it 
is developed, what are on the out parcels, what kind of buffers there might be.  In fact, in 
the purpose statement in the blue memo, it talks about the character of the development 
should be appropriate to the neighborhood and conditions and safeguards should be 
provided to ensure that the development will minimize any diminution, if any, to value of 
surrounding property.  So right there it talks about the purpose of the C.U.P. and that you 
do have to take into account the surrounding neighborhoods more than you might with 
general or limited commercial zoning that it is not controlled by any protective overlay.  

So that is a big difference, and I think that gets a lot to the argument about the Recreation 
and Entertainment, Indoor.  The general definition that came into the Zoning Code when 
it was adopted in 1996, it gives a lot of samples.  Well obviously in an Aladdin Palace is 
an example that might be inside of the Towne East Mall.  It is a very small, 3,000 square 
foot facility you could classify that as Indoor Entertainment by the definition.  However, 
is that the same intensity?  Is it similar to a 12 screen or 14 screen or 18 screen theatre in 
terms of traffic generations, in terms of the comings and goings at night time and those 
types of things, and by our estimation it is not at all.  

So when I looked at this, and my interpretation I had to look at the matter of degrees in 
those types of uses within Indoor Entertainment.  So, that is kind of why I got and 
focused my interpretation on theatres per-se.  In the development as we knew it, as 
proposed, and we have seen it with 12 screens.  We seen it with 14 screens.  In the paper 
recently, it talks about 18 screens.  I don't know if that is what is intended here or not, ut 
12 and 14 screens is what we have seen, with anywhere from 1,800 seats to 2,200 seats or 
so.  That is quite a large use on that piece of ground there.  

Historically, Mr. Austin, and his references, historically when C.U.P.'s have been 
developed and they have included theatre complexes or theatres, they have for the most 
part been specifically set out separate and apart from the other listed uses like shopping 
centers, like regional shopping centers, like Towne East mall, and Towne West mall.  
Like personal care services, taverns, drinking establishments, theatres have shown up 
separately in nearly all of the community unit plans that have been approved prior to 
1996 when the Unified Zoning Code was adopted.

Part of what was in your packet was a number of the community unit plans.  I copied like 
the front page to show you the area and then some of the writing out of that community 
unit plan.  The ones before 1996, and you can see in there most of those are very similar 
in language to what is in this one, do expressly also say theatres as an allowed use 
separate from a shopping center or a services oriented shopping center, or car washes or 
whatever that might be.  So that is how we have historically reviewed these.  I did not 
review every one that he mentioned, but some of these very old community unit plans, 
like Pawnee & Seneca, I do believe that there is a little bit of difference, when again if we 
are talking about degrees, two theatres or four theatres inside of a shopping center that 
might only be 10,000 square feet as opposed to a large cinema is quite different in terms 
of a community unit plan.  

So that is kind of how I looked at that, and that is why I looked at a lot of these older 
C.U.P's when I kind of did some evaluation of this and from meetings that I have had 
with Mr. Austin back in June to discuss this matter.  One the newer C.U.P.'s, again in 
your packet, you can see I went through a number of those.  I think there are 17 or 18 
there that I looked at over that last five years that have been approved, and while it is true 
that there are probably two or three that had been approved not excluding indoor 
entertainment, I think you have to look at the whole picture again that went through the 
public hearing process, and you have to look at the whole site plan to get a true picture of 
how that effects the surrounding neighborhood.  Many of those are buffered by GO or 
some B Multi-family or some other kind of zoning to buffer between the out parcels 
where there might be indoor entertainment and an actual neighborhood.  So you really 
have to look at that whole thing in context.  Many of these have been developed with 
large reserve areas, lakes, K-96 highway cuts across them and serves as a major barrier so 
that is why I wanted you to see some of those notes, and I did look at those issues, and of 
course, those have been publicly disclosed and approved by the MAPC, and have gone 
through that hearing process, and those are the kind of issues that they look at in more 
detail, particularly since 1996.  

On the administrative adjustment process, when you talk about the administrative 
adjustments, I think you talked about on page 199 in the Zoning Code.  When it talks 
about adjustments to C.U.P.'s, which is usually the next step beyond an interpretation, or 
frequently is what needs to be done.  An adjustment to the C.U.P. says the Planning 
Director with the concurrence of the Zoning Administrator may approve minor 
adjustments to approved C.U.P.'s unless finding that the proposed development would 
have one or more of the negative impacts stated in Section V-I.6, but in no event shall the 
Director approve an adjustment that allows any of the following, and in that list is a 
change in a use to any use that is more intensive.  So he has kind of left out the part about 
in no event shall the Director approve an adjustment that allows any of the following, so 
you have to keep that in mind when he is talking about adjustments.  It just says in no 
way can the Planning Director or the Zoning Administrator ever approve an adjustment 
that does that.  It would have to go through an amendment process in that situation, so I 
think that is real critical for you to know.  

It also refers to Section V-I.6 in that same statement there.  In that Section it talks about 
Zoning adjustment criteria which kind of refers back to a lot of the things that I looked at 
in the interpretation.  Things like would it adversely affect the safety and convenience of 
vehicular, pedestrian circulation, in the vicinity of a certain tract, including traffic 
reasonably expected to be generated by the proposed use.  So that is one of the things you 
have got to look at even for an adjustment.  It creates adverse impacts on existing uses in 
surrounding areas than that reasonably might result from development of the site with 
strict compliance with the adjusted standard.  We looked at that particularly as related to 
traffic circulation and those things which are in your packet.  The traffic engineer did 
look at some studies and will tell you in looking at that no matter what studies you look at 
in the evening hours for a theatre, cineplex with 12 or 14 screens you have a whole bunch 
more traffic than might be generated by even a fully built out site here that is allowed of 
91,000 square feet in typical retail uses.  So that was a tremendous factor in our 
reasoning. The area would be compatible with existing or permitted uses in abutting sites 
and in terms of the building height, setback, bulk and scale, things of that nature.  Again, 
with a theatre complex we are talking about a lot of nighttime use. I was taking into 
consideration in my interpretation letter, and I think set forth fairly clearly, that this site 
was very tight.  It is surrounded by residential uses all on the west and on the north very 
close by.  This will be very tightly packed in those uses, and if you looked at that 
particular item, the setbacks, the open space and the sheer bulk, and nighttime use here 
you could say that is just not appropriate if you were considering an administrative 
adjustment to this community unit plan.  So he mentioned that.  I kind of wanted to walk 
through that with you.  

I also did want to talk a little bit about my letter and what I see as some of the key things 
that were highlighted.  First of all, he had mentioned in his appeal that he filed that I 
didn't, and he mentioned here today, that maybe I did not really speak directly to the 
similarity of the intensity, and I think I did specifically talk to that in the second bullet 
and in the sixth bullet of my letter on page 2 and page 3 of my letter.  Where it talks 
about allowance of theatres in older C.U.P.'s, theatres have been consistently identified 
and approved separately and distinctly from other proposed uses such as shopping 
centers, neighborhood shopping centers, personal improvement services, tire and battery 
stores, and convenience and service orientated retail.  This would clearly indicate that 
theatres have previously been viewed to be a significantly intense use that is not 
necessarily similar to or equal intensity to these other proposed uses, and a theatre should 
be listed reviewed, and approved separately from other such uses.  I think for the most 
part history from the City of Wichita will bear that out, and as I said, I probably missed 
two or three of those very old C.U.P.'s.  I have only been here 11 ½ years.  I didn't even 
remember a couple of those.  There may have been theatres in place when those C.U.P.'s 
were developed actually, and now if you go back and look at those, they may have been 
existing already.  I think most of them are 2 or 4 screens inside, so we could get more 
detail on that if you need that.  

Also, in this particular C.U.P., if you are familiar with it, the uses out there have 
developed a very limited retail and office type scale.  You have a bank, and maybe some 
of you have looked at this.  There is a Tutor Time daycare, a small gymnastic academy 
out there.  There is a little office, a clinic of some kind there on the north end that is 
developed.  But basically this is a neighborhood type oriented community unit plan the 
way that this has been developed.  

In our Sedgwick County Comprehensive Plan, this is bullet three in my letter, and you 
probably read this, it says very clearly, "Guide auto sales lots and other types of 
infrequent purchase or non-neighborhood serving commercial uses to areas (exiting or 
planned) containing similar uses, and away from neighborhood commercial areas."  The 
City would look at theater complex like this with 12 screens or 14 screens or whatever it 
is as a regional type of use not designed on a neighborhood scale, and if you drive this 
area, you can see that the character is very much neighborhood-oriented services out 
there in this area.  So I think that is a very important point to be made.  

Just to emphasize again, a community unit plan, I think the Code clearly tells us, that we 
look at that differently than the way that we would look at a typical zoning interpretation 
where there is no overlay.  That is a real key component to this interpretation today.  It is 
a matter of degree, and even though theatre is an indoor use that is allowed in a limited 
commercial district, it doesn't mean that it is the same as an Aladin Palace inside of a 
shopping center or necessarily a bingo hall that might be inside of some shopping center, 
3,000 square feet or something of that nature.  We would have to look at these things and 
consider the degree and intensity and similarity of that use to these other kinds of uses.  

I think that answered most of the items that he brought up.  I would say that the handout 
that he gave out, we have had some shopping centers that have had theatres in them, but 
our Zoning Code is driven by local needs and development for our planning process, so I 
think that is something to note.  That is probably a nice guideline as you are developing a 
Comprehensive Plan for some cities, but obviously every city develops these things 
different, and historically theatres have been looked at as a very intense use in this city.

RUANE:  Thank you Kurt, and I am sure we are going to have some questions.

FOSTER:  Mr. Schroeder, do the zoning regulations itself actually define a difference 
between the different indoor theatres in terms of 10, 12, 14, 16 individual movies?

SCHROEDER:  No, it does not.  It just lists them as a sample in today's Code of indoor, 
entertainment types of uses, and theatres could be one of those.

FOSTER:  So there is nothing in there from the standpoint of the "LC" district where it 
would list recreation entertainment and so forth?  Nothing defined in there that would 
limit the size of the theatre?

SCHROEDER:  There is not in today's Code.  Now I think someone provided that in the 
blue memo that definition for you, so it should be in front of you.  You did ask a question 
about the past Zoning Codes.  Theatres were always in "LC", and they were called 
theatres or places of public entertainment, separately from shopping centers and retail.  
All of these are in the same category, and they did not have a size classification 
necessarily either.  C.U.P.'s always have been separate for the most part.

FOSTER:  Let me make sure that I am understanding what you are telling me.  In 1983, 
or 1982, when this C.U.P. was processed the "LC" district defined theatres as something 
separate?  Did it not have a general category like the recreation entertainment thing?

SCHROEDER:  It did.  It had a couple of different items in it.  I think I have that here 
somewhere, but it had a big list of things that are in "LC".  Shopping center, personal 
care services, it had something called indoor, recreation, I believe, which was like bingo 
parlors, gymnastics, workout centers, and then it had theatres and public places or public 
entertainment was another one.  What happed in 1996, those kind of all came together in 
one definition.

FOSTER:  Does it stretch your memory to go back to 1983?  Was there a definition to 
any of these that you are talking about the theatre or the recreation part?

SCHROEDER:  Just what I just mentioned.  I believe that it probably was in the 1983 
addition of the Code in the "LC" district listed about 20-25 items.  Shopping centers, 
retail, etc., theatres and places of public entertainment and separately things like indoor 
recreation, bingo parlors, and a number of uses.  So that has been in the Code that way 
for a long time prior to 1996.  

FOSTER:  Is it fair to ask you, in 1983, when you weren't there, would the actual 
presentation at that time include a theatre due to the fact that it mentioned a shopping 
center in your opinion?

SCHROEDER:  You mean for this particular C.U.P.?

FOSTER:  Yes, in 1983, when this was processed, could one have foreseen when they 
had the zoning case that a theatre might have been included as one of these uses?

SCHROEDER: I don't know.  I would have to look at minutes and things of that nature, 
but as I said most of these older C.U.P.'s when there were theatres anticipated they were 
listed separately along with shopping centers, neighborhood shopping centers, and all the 
other things that are in this C.U.P.

FOSTER:  You agree when you were talking about an adjustment and so forth, this is 
not an adjustment, right?

SCHROEDER:  This is not an adjustment.

FOSTER:  You are just using that as an example?

SCHROEDER:  He brought it up, and he mentioned it in his letter to you about 
administrative adjustment criteria, so I just wanted to clarify that he left out some of the 
wording.

FOSTER:  We should probably ignore that as not being relevant to the situation here, in 
your opinion?

SCHROEDER:  I think you need to focus on the interpretation more than the adjustment 
process.

FOSTER:  You broke down, as well as Mr. Austin, the different factors as if this was a 
zoning case like MAPC was hearing it and so forth, were you responding just because he 
did that, or did you feel that was part of this kind of decision?

SCHROEDER:  I was really trying to respond and clarify some of what he said, because 
he was trying to focus on indoor entertainment only, and I am trying to make a case that 
in a community unit plan there is a matter of intensity, similarity in degree of the 
development that you really have to look at and consider.  So C.U.P.'s are a whole 
different animal then a typical "LC" zoning lot.

FOSTER:  Would you say that this is an issue that is purely based on an interpretation of 
how the regulations are written, and the C.U.P. is written, and not an issue of whether a 
theatre is desirable or not desirable at this location?

SCHROEDER:  I am trying to base my interpretation on our history with what I think 
this City has seen in C.U.P.'s, and how they have tried to control C.U.P.'s, and how they 
viewed a theatre complex in terms of its intensity and affect on surrounding 
neighborhoods.  That is how I have tried to look at this, from an historical perspective, 
and its affect on the way this corner has developed to date as it relates to our 
Comprehensive Plan, as the interpretation guidelines say that I need to do.

FOSTER:  Have you had a chance to look at the list that Mr. Austin provided of the 
shopping centers that have gone in under community unit plans that have put in theatres 
or related uses?

SCHROEDER:  That is not all of them by any means.

FOSTER:  Right, because these were a sample of them I presume.  Do you recall or can 
you tell us whether any of those have gone in because of administrative adjustments or 
interpretations, or were they simply allowed by right?

SCHROEDER:  I probably couldn't without looking at a little more detail at those 
records.  I know that for example he indicated the Towne East Mall, he talked about the 
Discovery Zone going in there.  I believe that was an administrative adjustment, as I 
recall.  I think I remember doing that.

FOSTER:  In order to allow a theatre?

SCHROEDER:  No, to allow an indoor Discovery Zone.  That little smaller type of 
facility.  That is indoor gymnastics for smaller children.

FOSTER:  Which is now gone.

SCHROEDER:  Which is now gone.

RUANE:  Kurt, my question is, in the original C.U.P., can you show me what if any 
residential property was included within that?

SCHROEDER:  There wasn't any in the original C.U.P.?

RUANE:  Am I reading it correctly that it goes north to Douglas and includes Texas 
Street?

SCHROEDER:  Okay, yes, two family dwellings, three or four families on Parcel 4.  
Then, two family dwellings in Parcel 5.

RUANE:  What relevance does that have?

SCHROEDER:  Well again, I think to me, it doesn't have a lot because of the way that 
thing has developed in looking at this in light of the Comprehensive Plan as I am suppose 
to.  The neighborhood nature of that particular community unit plan as it is developed and 
then the overall affect of intensity on that overall area not just on a few houses there.

RUANE:  Do you agree that a C.U.P. is like overlay zoning that a tract under common 
ownership agrees to?

SCHROEDER:  Yes, it is overlay zoning.

RUANE:  Once those parcels are divided out and split as these have, do those tracts 
within the C.U.P. have greater right than the general public to assert protection of the 
C.U.P.?

SCHROEDER:  I don't necessarily think so. I think the reason we have a lot of these 
community unit plans and protective overlays is to protect the surrounding and adjoining 
neighborhood.  While you are trying to control development within that C.U.P., you are 
also approving it up front with a lot of controls to protect the adjoining neighborhood.

FOSTER:  Mr. Schroeder, do you feel that there are passages in the present zoning 
regulations that provide an opportunity that instead of looking at the "LC" in 1983, that it 
keeps moving all the time and it changes whenever the "LC" changes?  In other words, 
when this was done in 1983 and adopted, the light commercial zone at that time, and is 
there something in the zoning regulation that allows that to be continually updated, so to 
speak, so that we are now looking at it in this year a whole different list or something?  In 
other words, we are going to have a lot of these cases aren't we if this keeps up, in other 
words, 20 years from now "LC" is going to be different than it is now but the C.U.P. is 
going to be the same?  But you are using the current "LC" to judge this, so to speak.

SCHROEDER:  No, I am using both historic perspective of what the Zoning Code 
talked about and allowed back when this was developed in addition to what has happened 
since 1996 in terms of the Unified Zoning Code.  I looked at both of those.

FOSTER:  Do you feel the Code has provisions in the present Code to view it as a new 
use as terms of the present "LC"?  Does that run with it, so to speak, no matter what if the 
"LC" was totally dropped in some future zoning regulation?  Does that mean what 
happens to these underlying zones for the C.U.P.'s?

SCHROEDER:  We would probably have to go back and look at what was in place 
when the C.U.P. was adopted.

FOSTER:  I agree with you.

SCHROEDER:  There is also an administrative adjustment process you mentioned.  The 
Discovery Zone, when that first started coming about that was 8 to 10 years ago, that was 
kind of a new concept.  There really wasn't anything for that in the Zoning Code, so we 
looked at that use and the intensity, and I believe that we did an adjustment for the one 
that was mentioned here in the Village Fashion Center, and probably a couple of others 
around town.  It is kind of a new use.  It hadn't really been thought of much.

MARKHAM:  Do you have an amendment processes or some kind of an addendum that 
would allow the C.U.P. to be in line with things that are changing for like future use?  Is 
there a process of updating?

SCHROEDER:  There are several processes.  Number one is the interpretation process. 
Sometimes things come about that are not quite written into the C.U.P. exactly.  Is it or is 
it not the same as or less intense or whatever?  The second is the administrative 
adjustment process, which we mentioned here today.  It is a little bit simpler process; 
although, it is somewhat public.  It is administrative, for the Zoning Administrator and 
the Planning Director have to concur on an adjustment to the C.U.P.  It is done in writing. 
A letter goes out.  Public is given a couple of weeks to comment with the sign out on the 
site.  Then something can be adjusted or updated or added into that community unit plan 
to clarify something.  Then, finally, if it is beyond all that, maybe it is a use that was 
never anticipated in the C.U.P. at all or it is an use that is extremely intense or much more 
intense then anything that was listed, there would be the amendment process.  That would 
come to the Planning Commission through public hearing and then go onto the Council 
or Governing Body for final approval.  In fact my letter talked about that in the final 
paragraph.  You can appeal this or you can also request adjustment to the C.U.P. to 
clarify, or go through the amendment processes if necessary.

FERRIS CONSULTING, %Greg Ferris, P. O. Box 573, Wichita, KS 67201:  I reside 
not to far from this area.  Contrary to what you may have heard or read, I do not represent 
that neighborhood in this situation. I represent myself, and a few individuals who have 
asked me to represent them.  One is an elderly gentleman that is a family friend that lives 
directly behind the property there.  I will not be speaking for the entire neighborhood; 
although, I did submit today 430 signatures of resident that we gathered within the last 
four days of folks in this area that are very concerned.  

However, that issue is not an issue that you need to address today.  It is, however, an 
issue that probably should be recalled and remembered because the applicant has 
recourse to file for an amendment to the community unit plan.  The community unit plan 
is not one that is vague.  It is very clear that it does not allow theatres.  It does not say that 
it does in the community unit plan, and the entire purpose of a community unit plan is to 
tell you what is allowed there, otherwise, we would just zone the whole property, and that 
would be the end of it.  

I would agree with virtually everything Mr. Schroeder said with one exception. I do 
believe that the people who live on Texas Street who bought their homes and most of 
those homes, about 80% of them are owner occupied, that are a part of this community 
unit plan.  They are part of the community unit plan and do have some right to rely on 
what the community unit plan says.  They have that right to rely on that.  

The community unit plan does not say that intensive uses such as bowling allies, theatres, 
and bingo parlors, and I am not just talking about theatres here, even though Mr. Austin 
can come up and say that we are really not talking about theatres here, we wouldn't want 
a large bowling alley on that property.  We wouldn't want a large bingo parlor, and the 
reason is it is clearly a more intense use than is allowed.  Why is it more intense?  It is 
more intense because of the traffic patterns are far different than a normal retail 
establishment.  It is more intense because the time of day that traffic is attracted to 
theatres and to bowling allies and to bingo parlors is significantly different than would be 
attracted to a shopping center or a battery and tire store.  As you go through the list and 
look at what is allowed, it is significantly different, so when we are talking about our 
opposition our opposition, is because this clearly could not be in anyway mistaken that 
the use that they are requesting is more intense than what is allowed in the community 
unit plan.  

I agree with Mr. Schroeder.  It does not matter what the Zoning Code says as far as what 
is allowed in light commercial because the community unit plan tells you what is 
allowed. That is the whole purpose for them.  The purpose for those in those days when 
we did the commercial and residential community unit plans was so that the people who 
developed the residential and bought those lots had a reliance on what was going to be 
next to them.  

One of the other elements that Mr. Austin mentioned in his appeal was that staff failed to 
take into consideration the landscape buffering, the restrictive covenants if you will, and I 
have looked through those restrictive covenants they are not really very restrictive at all.  
A 20 foot landscape buffering might go and wouldn't reach the end of this table from the 
wall, and that is not what is normally seen in community unit plan when you are talking 
about intense uses.  The reason this community unit plan doesn't require it is because it 
anticipated in its dialogue, in its approval, it anticipated neighborhood oriented uses not 
regional oriented uses.  Regional oriented uses are more intense uses.  You do not survive 
in a bowling alley from just attracting from the nearby neighborhood.  You do not survive 
in a theatre from what is attracted in a nearby neighborhood, but if you look at a battery 
and tire store, but if you look at the neighborhood type of uses that are allowed, 
convenience stores, they do rely.  

Finally, the last point that I would like to make is that Maple Street has developed as a 
residential corridor.  It is not a heavily traveled commercial corridor.  This would change 
that dramatically.  The intensity here would change that dramatically, and we in no way 
are willing to believe that a theatre, bowling alley, bingo parlor, major complex of that 
type would not destroy the integrity of what this community unit plan says. The 
interpretation that has been rendered by staff should be upheld today.  Let's put this to 
rest.  Give the applicant a chance, if they would like, to go through the process that is laid 
out clearly in the Zoning Code for changing the intensity in use.  They can file that case 
and do that in public and not in a way that they have done that.  I will be glad to answer 
any questions.

RUANE:  Any questions for Mr. Ferris?  Let's take a five-minute break.  We assure you 
that we will not discuss anything material to this matter amongst ourselves, and none of 
you will discuss with us as well.  

Okay, we are back on the record continuing with Item 2 on our Agenda.  This portion is 
were individuals who have signed up on the sign-up sheet are each allowed as much as 5 
minutes to address us with their thoughts, opinions, or concerns with regard to this item.  
I ask that you come to the podium, give us your name and address and make it clear 
which side of this issue you are on and then make your remarks, and if your points have 
already been made by someone earlier, you need not repeat them for us but merely state 
that you echo them rather than run through them.  To get this process started I am going 
to pick on Mr. Hall, since he is so familiar with microphones and public speaking.  

DON HALL, 120 S. MAIZE ROAD, TOWNHOUSE #9, Wichita, KS:  I am 
representing the folks at the Rolling Hills Country Clubs Estates.  We are for not having a 
movie complex being built there.  We did not sign a petition, but in a unanimous vote, I 
am representing 61 people in the 36 townhouses. We comprise the east side of the street 
on Maize Road.  We are built just north of Viewgate Enterprises, and we comprise 156 
South Maize all the way up to 166 North Maize Road.  

As mentioned, the buildings that you see in that area do comprise dentists, florists, gas 
stations, banks, dry cleaners, and there is no high traffic entertainment in that area.  We 
have noticed just over the last several months, and years, the traffic flow on Maize Road 
due to the building of the complex on 21st and Maize.  If you have ever been at a given 
time either on Texas or Douglas trying to turn north or being in our complex trying to 
turn south or north, there has been a tremendous increase traffic flow because of people 
living south of Kellogg or using Maize Road to go to the complex at 21st and Maize.  So 
we do see a lot of the traffic that goes there, and we feel that a movie theatre that would 
have 12 or 14 screens would just intensify the traffic that is on Maize Road.  That is our 
concern.  I am representing the 61 people.  I don't know if the decision today was a 
shopping center that I would be here.  People would probably agree to a shopping center, 
those 61 people.  Maybe even a bingo parlor, they would agree to, but when you are 
looking at a movie theatre that has movies starting at 1:00 in the afternoon and that 
special mid-night showing on the weekends, again that is just going to intensive the 
amount of traffic that we will see on Maize Road at that time.  

Also a concern of ours is the age of the people that live in that area with Maple Gardens 
as a retirement home.  We have quite a few people that are senior citizens that live in our 
development that average age between 64 and 66.  It does make a burden to get out of our 
complex and go to the south, and many times to go to the north, and do some shopping 
with the amount of traffic that we currently have.  We would like to see the people 
develop that property.  We would like to see the owners sell it.  We would like to see 
something go on there.  We like to see the weeds and grass cut down and have something 
nice there, so we are interested in something that would go in on that location we simply 
don't want to see a movie theatre that would have that much traffic, and again, it would 
only compound the problems that we have currently on Maize Road at that time.

VERN LAMBERTZ, 812 N. WACO AVE, Wichita, KS:  I have been in the real estate 
business since 1952.  We have developed many of the shopping centers, office buildings, 
etc., including some that have been named today.  I have never experienced a problem of 
putting a theatre in a shopping center.  It is generally taken as a given.  It is normal.  Not 
all centers have movie theatres, but some do. My development work has been done in 
other towns in the state of Kansas, as well as Wichita.  

VERN IMES, 6654 N. Hillside, Wichita, KS:  I am against the proposed intensive 
usage of that area.  I own the property here (pointing).  Those are nice twin-homes.  They 
are brick, with shake roofs, double car garages, and so before you would allow any use 
like that, I would ask you to go out and stand anywhere along those areas and imagine 
what kind of light pollution would come from high light standards in such usage.  The 
kind of noise pollution from the automobiles coming and going.  The trash pollution just 
caused by people, and the omissions from all of those automobiles what that would smell 
like versus what it smells like right now.  I guess I have some questions of you.  If it is 
permitted to be used as they propose, what kind of proposal have they made on the buffer 
zone?  How high would the wall be, trees planted, grass and that kind of thing?  Do you 
know that today?  

RUANE:  Have you seen the restrictive covenant that was proposed?

IMES:  No, I haven't.  Could I get a copy of that?

RUANE:  I am certain that you can.  Tim do you have an extra copy of that?

IMES:  Who would enforce their offer to put in that kind of a buffer zone?  Who would 
enforce the maintenance of it and so forth?

RUANE:  I am going to allow Mr. Austin to respond to that in his rebuttal.

IMES:  That is all I have to say.  Look at the environmental situation out there and how it 
will affect the people who live out there.


BILL DEMOSS, 10507 W. Texas, WICHITA, KS:  I don't know how to work the 
slides, but could I get the slide that shows the houses around the proposed site?  I live 
right next to the property.  My house is right here (pointing), and as you can see there is 
an extension there and my fence is right on the property line within 10-15 feet.  I wasn't 
there in 1983. I bought the property about 5-6 years ago, and the last two years I have 
spent approximately $50,000 adding a sunroom full of glass looking over the back and 
about $20,000 worth of landscaping on the back to enjoy the peace and quite of the 
neighborhood, knowing that it had a chance of having some commercial development.  I 
thought similar to what is currently there.  The plan that is proposed is the most hideous 
thing that I could imagine going into that area.  I think that it would greatly diminish my 
property values, but more importantly I would fear more for both our way of life as well 
as our safety.  I understand there would be people there at night on Saturday's and 
Sunday's.  There is going to be unlimited traffic that is all going to be within 40 feet of 
my bedroom, and it is all just unimaginable. 

RUANE:  That completes our list of who has signed-up.  Is there anyone else that has 
changed their mind that would very much like to be heard today on this issue?

KELLY HOPKINS, 10505 W. TEXAS, WICHITA KS:  I live near Mr. DeMoss. 
Again, my property backs up to this property, and we are against this proposal, and we 
support the staff's recognizing of the more intensive use and would like you to know that 
I am here to support the staff's point of view.

RUANE:  Sticking with the outline that we had proposed, Kurt Schroeder for 5 minutes 
followed by Tim Austin for 5 minutes or less.

SCHROEDER:  There are just a couple more things I would like to reflect on.  Tim did 
talk about the restrictive covenants in his application to you and I think that is important 
to note it does talk about in the Zoning Code looking at other documents that maybe 
deemed relevant.  Typically that would be the Comprehensive Plan, Zoning Code those 
kind of big policies and types of documents.  I try to focus on the interpretation and what 
it was about in the C.U.P.  I didn't look at that extremely closely in my interpretation; 
however, I think there are things looking at that to me don't protect that neighborhood 
very well in terms of the setbacks, the buffering and those kinds of things.  I did want to 
mention that again because of the neighborhood scale of this development in this C.U.P.  
I think that comes into play.  

Also, just historically, let's talk about this C.U.P.  There have been three adjustments 
made to this C.U.P., and just to refresh your memory, in 1988 that was for a single-bay 
car wash, what is now a Amoco, well away from any of the residential.  An adjustment 
was done to allow that single-bay attachment to the allowed service station.  That is how, 
historically, that has been viewed.  The daycare center, I think that it has 180 students 
maximum, an administrative adjustment was done to allow that use, which I think most 
anybody in this room would agree is much less intense then the proposed theatre 
complex.  Also, an administrative adjustment was done in 2002, as recent as February 
this year, to allow a car wash on a Parcel on this C.U.P. that was at least 350 feet away 
from the closest residential, and they went through an administrative adjustment process, 
and it was not interpreted that that was allowed by right.  So that gives you some kind of 
a feel for the neighborhood scale of this community unit plan.  

I just want to emphasize again, and Mr. Ferris brought it up, and I want to re-iterate again 
looking at the Comprehensive Plan, it does say focus on areas that have developed as 
neighborhood type serving commercial corners should be kept that way and try to keep 
away the regional type developments as they are much more intense and have much more 
affect on the neighborhood.  I think that is a real important factor in this particular 
interpretation.  

RUANE:  Any questions for Kurt?

TIM AUSTIN:  I want to take this opportunity to discuss a little bit on the intensity.  It is 
very convenient for the City to talk about intensity in a very subjective opinion.  When 
Mr. Ferris stood up here, he talked about some things, but quite frankly there is no facts 
in terms of the intensity.  The traffic counts that they were talking about, the Traffic 
Engineer, I met with him, and basically, he said the traffic generation is the same for the 
shopping center that could be built there and for the theatre complex.  While it is true that 
the peak times for theatres might occur later in the evening, the reality is that a shopping 
center would create a greater impact on the facility in terms of the aerterials on Maple 
and Maize than a theatre would, and that is because the peak times for a shopping centers 
occur when it is the commuting time. So from an intensity standpoint how do you judge 
it?  It is very subjective.  I would like to re-emphasis again that the Zoning Code is very 
plain about the definition of intensity.  I don't want to get sidetracked about the 
administrative adjustment process.  When I brought that up, and Kurt clarified that really, 
the only reason why I brought that up is because in that administrative adjustment process 
it talks very specifically that the Planning Director has to consider intensity in that 
administrative adjustment process, and that is one of many things.  But the point is that he 
has referred to the definition of intensity.  Mr. Schroeder doesn't want to abide by the 
definition of intensity.  He wants to cloud the issue.  He wants to talk to about impacts, 
perceived impacts on his part, perceived impacts that quite frankly we don't agree with.  
Intensity is black and white.  It is in the Zoning Code, and quite frankly if you look under 
the uses under the Zoning Code page 123, most of you are probably fairly familiar with 
the matrix on commercial uses or residential uses.  It has across the top the various 
zoning districts and it lists on the left hand side the various commercial uses.  If you will 
follow with me recreation and entertainment indoor in someway can be construed to be 
less intense than a shopping center because recreation and entertainment indoor is a 
Conditional Use in Rural Residential.  Again, maybe it is with respect to other types of 
recreation entertainment indoor uses, but quite frankly, there is a whole host of issues 
there, and the fact of the matter is if we were going in rural residential while it would be 
subject to a Conditional Use, we would have the right to apply for that use.  A shopping 
center couldn't go into Rural Residential.  They would have to do a zone change first, so 
it just depends on which agenda you have as to which definition of intensity is applicable.  
The historical perspective is interesting, and I am glad Mr. Schroeder clarified that 
theatres were allowed in "LC" uses in the early 80's.  It seems to be again that if it was 
separately defined, whether it was or wasn't and then it was lumped in with the 
recreation, entertainment indoor in 1996, and if it was to be so much more intense then 
those other uses such as a bowling alley or bingo parlor or if they felt that two screens 
was okay maybe four screens but 12 or 14 screens weren't appropriate, there was 
certainly an opportunity to address that issue at that time in 1996.  So what you have is 
the City staff attempting to re-write the zoning regulation.  That is what it is all about.  
We are talking about use, and it doesn't matter how many screens there are.  It is simply 
whether it is a recreation entertainment, indoor use, and given the information that we 
have provided you, we think that we are correct in our interpretation of the Zoning Code.  
Just because we have done administrative adjustments in the past doesn't necessarily 
mean that it is right, and it doesn't mean that it is legally correct.  For those of you that 
are involved in the process, when it comes to development time is money.  Certainly if 
we felt that an administrative adjustment would have been successful to go that route, and 
it would have resulted in a more timely decision, a less expensive decision, maybe we 
could have went that route, and sometimes those are just business decisions.  It doesn't 
mean that they are a policy.  It doesn't mean that they are right or wrong.  It is just a 
business decision.

The last thing I would say that if you tend to agree with Mr. Schroeder's argument, again 
the traffic is no more.  It will occur at a later time when it has less impact on public 
facilities.  The bulk of the requirements are actually going down.  The restrictive 
covenant limits the building size to 40,000 square feet as opposed to 91,000 square feet, 
and I don't know, Mr. Ferris talks about the buffers being inadequate, I did a zone change 
amendment to a C.U.P. for the Home Depot out west.  It has less buffering than what we 
had in this case, or are proposing, and Mr. Ferris was on the Council at that time and 
approved it.  Those buffers are there and they are more intensive than many of the buffers 
that you find in C.U.P.'s.  If you go to the Sterling Farms C.U.P., it has less buffers than 
this one.  I will be happy to answer any questions.

RUANE:  One short question.

FROM THE AUDIENCE:  On intensity, you had a 4:30 show letting out say around 
6:30 and a show starting at 7:00 on 12 screens.  How many cars would be coming in, and 
how many cars would be coming out of that complex?

SIMMERING:  For the record your name, sir.

DON HALL, 120 S MAIZE ROAD TOWNHOUSE #9 from audience:  The question 
again.  If a 4:30 p.m. show lets out around 6:00 and another show is going to start at 7:00 
p.m.  How many cars would be leaving the complex, and how many would be coming in 
if 12 screens were operating?

TIM AUSTIN:  I think that information has been provided to the Board of Zoning 
Appeals, and let me see if I can figure that out for you Mr. Hall.  In the 4:00-6:00 p.m. 
time frame?

DON HALL:  No, I am saying between 6:00 p.m. and 7:00 p.m.  If a 4:30 show let's out 
and people are leaving between 6-7:00 and you have more people coming into your 
complex for the 7:30 show, within one hour how many cars are leaving, and how many 
cars are coming in?  What is the intensity?

TIM AUSTIN:  I don't have that information, I am looking at what the traffic engineer 
generated, and I had met with him, but I can tell you overall traffic counts for the two are 
very comparable.  Again it is just a matter of when that peak occurs.  Ultimately at the 
end of the day…

RUANE:  Let me try to wrap this up, and I would encourage either Kurt or Tim to let me 
know if I mistake this.  According to the materials submitted, the traffic counts indicate 
that with 12 screens, the average vehicle trip ends in the 4-6 period would be 534.

AUSTIN:  That is an amount of total vehicles generated that includes trips in and trips 
out.  There is not a break out between in or out.  

RUANE:  In the 7:00 to 8:00 period, that is separated, and the information is bracketed 
separately and that's 1,073 weekday and 1,077 Saturdays, and that is also again computed 
on total trips in and out from the information submitted.  Is that correct?

SCHROEDER (away from podium):  And a shopping center from 7:00 p.m. to 8:00 
p.m. was 320 weekday, and 456 Saturdays for that same time period.  So there are 
different studies depending one-half to 3 or 4 times traffic generated.

RUANE:  I think that concludes the presentations today.  We will bring it up to the 
Board for our discussion. I appreciate your patience and going through this in a way that 
is slow but also ensures fairness.  As I begin our discussion, I need to remind us, and 
everybody, that it really is not our choice here today as to whether or not we would like 
the theatre complex to be there our not, whether for it or against it.  It is a much more 
specific question than that, and it really has to do with whether or not we think Kurt 
Schroeder was right or wrong in the interpretation that is written up.  That is really the 
subject, and the basis for all of this.  His opinion was that the proposed theatre complex 
did not fall within the proposed uses allowed in the community unit plan that we have 
been talking about.  This body has three options.  We can come to the conclusion that we 
don't have enough information from which to make a decision and send it back for 
further study and additional and more sessions like this, or we can determine that we 
agree with Kurt's decision, or that we do not agree with Kurt's decision.  We are a quasi-
judicial body, and there are appeals, perhaps, that may be taken from our decision but it is 
important that we make a decision on the right issue.  Sharon have I correctly stated the 
scope of reasoning?

DICKGRAFE:  Yes, generally you can affirm, you can reverse, you can modify his 
interpretation.  Given that criteria, I think that it is important that the Board focus on the 
limited issue, which is his interpretation of the C.U.P. language as well as his 
responsibilities under Article V-E.15 in interpretting C.U.P.'s as far as what is permitted 
in that the uses are similar to and no more intensive than the uses listed in the C.U.P., and 
there have been some discussions by both applicant and Mr. Schroeder regarding that 
provision.

FOSTER:  I would like to see one other item discussed, and maybe added to your point, 
and that, this case is not a side of the neighborhoods.  I am sure that nobody wants to hear 
that but it is not a vote of the neighbors.  Mr. Ferris has presented a list, not to us but I 
guess to the staff, of 400 names, and Mr. Hall mentioned 61 people.  There are a lot of 
people here today, but zoning, as I understand it, is not a vote of the number of people 
that are concerned about it.  It is a factual question of interpretation.  Am I right on that 
Sharon?

DICKGRAFE:  Yes, this is unlike a variance case where emphasis on the neighborhood 
is a factor.  This Board's goal, or purpose, is to look at Kurt's interpretation and 
determine whether or not it is consistent with the language of the C.U.P. as well as the 
purposes of the C.U.P., which have been outlined in my memo to you, and determining 
whether or not that interpretation is reasonable.  But Bickley is correct that neighborhood 
opposition, certainly they have the right to be present, they have the right to appeal any 
decision as an interested party; however, that is really not a factor that this Board needs to 
determine in looking at whether or not this interpretation was reasonable.

RUANE:  Point well taken.  Let me throw this out as a tool to begin the discussion.  Is 
our decision as simple as whether Kurt's conclusion was reasonable that an indoor theatre 
or theatre is a less intensive use than a proposed theatre complex.  Is it that simple?

FOSTER:  Would you repeat that again?

RUANE:  Well, could it be as simple as the question is, "Was Kurt Schroeder reasonable 
in his interpretation of the C.U.P. to conclude that an indoor theatre would be a less 
intensive use then a proposed multi-screen theatre complex?"

FOSTER:  It seems to me that might be the ultimate questions, but I suppose there are 
others that proceed that don't you agree?  I think it is an interesting thought to think about 
that the people make C.U.P. in 1983, and if the applicant had appeared and said by the 
way I want to put a theatre in the shopping center, I doubt if there would be single person 
here that was here today that would have shown up.  We are talking maybe one or two 
screens, and people would really be asking when does it open.  What the real issue is that 
conditions have changed, and we are now in 2002, and we have mega screens and 16 of 
them and traffic that is talked about, and yet the zoning has probably not kept up with 
that.  So, I enlarge upon your issue Mr. Chairman, that the question is do we look at this 
back when the applicant filed the C.U.P. in 1983 what the intent was, and I think history 
is a part of all this, or do we look at it as today?  I think that is what makes this a very 
interesting and difficult question.  I do have two or three questions that I would still like 
to ask the staff, Mr. Chairman, that are purely factual questions to determine something 
in the zoning regulations.  Would that be appropriate.  Mr. Knebel could you join us at 
the podium and bring your book with you?

May I assume that we both agree that the C.U.P. provides for an overlay on the "LC" 
district?  That there is wording to that affect in the zoning regulations?

KNEBEL:  Correct, the C.U.P. is an overlay district.  That is correct.

FOSTER:  Where do we find, and is it in the zoning regulations, that the "LC" that was 
laid out in 1983, and where does it tell us that we can use the "LC" of 2002?

KNEBEL:  The property is zoned limited commercial and the Code, if you look at the 
second page of the Zoning Code, the Zoning Code is applicable to all properties within 
the zoning jurisdictions of the City of Wichita.  

FOSTER:  Well, isn't this a little vague as to whether the "LC" travels with it for 27 
years or something like that?

KNEBEL:  No, I don't believe so. I believe that when the Zoning Code is amended, it 
then is applicable to the properties that the book says that it is applicable to, and in this 
case, it says that it is applicable to all properties within the zoning jurisdiction of the City 
of Wichita, which this property is.

FOSTER:  I assume Scott, that we have to be careful that we are not talking about 
something as vague.  Is it something, do you have any wording in there that tells us that 
or is that something, that has always been assumed and something that has been used in 
C.U.P. for years?

KNEBEL:  You are confusing me.  Before you were talking about the applicability of 
the "LC" Limited Commercial zoning district.  Now you are asking a question about the 
community unit plan.

FOSTER:  I didn't hear you.

KNEBEL:  Before you were asking a question about the applicability of the Limited 
Commercial zoning.  Now you are asking me if there is something in the Zoning Code 
about the community unit plan wording?

FOSTER:  That it travels, in other words, where does it say that we are not using the 
1983 "LC"?  What tells us that we are using the 2002 "LC"?  

KNEBEL:  That is the same question that you asked previously.  The Zoning Code, 
when it is amended, is listed in the Zoning book on page 2.  There is a list that says what 
the Zoning Code is applicable to and it says that this Code shall apply within the zoning 
jurisdictions of the City of Wichita and if this Code is amended, in other words the "LC" 
zoning district is amended, then it applies within the Zoning jurisdiction within the City 
of Wichita.

DICKGRAFE:  Bickley, if I am understanding your question, it is not going to make 
any difference in this particular case.  I mean "LC", this property has been "LC" since the 
C.U.P. was developed in 1982, and in 1982 theatres were allowed in "LC"; although, 
there was not a definition of theatres in the Code in 1982, so even if you utilize the Code 
in 1982 it is not going to provide you any assistance or change the analogies as to 
whether or not the theatre was a permitted use.  It would have been permitted in "LC", 
but for the C.U.P. overlay, which is what the Board needs to interpret is the language in 
the C.U.P., if that clarifies your question or what I think your question is.

RUANE:  Because the C.U.P. is overlay zoning which replaces the Zoning Code and its 
typical applicability while it may chose to use terms familiar or pulled from the Zoning 
Code, it is placed on the land as is, and amendments to the Zoning Code do not amend 
the C.U.P.

FOSTER:  That is what Scott is saying.  He is saying that we use the 2002 version rather 
than the prior version.  

KNEBEL:  You are confusing the two issues, I believe, Mr. Foster.  The two issues are 
the property is zoned "LC" Limited Commercial.  That "LC" Limited Commercial 
zoning district, and the zoning district standards as those zoning district standards are 
amended; they do apply to this particular property.  Now there may be uses that are 
established on that property, but then are non-conforming with this zoning district.  There 
is a whole separate section in the Zoning Code that addresses how those non-conforming 
or grand-fathered uses are addressed.  However, the community unit plan, unless it is 
specifically amended by the Planning Commission or the governing body depending on 
the type of application that is made or by the staff through an adjustment, it remains in 
place and does not change even if the Zoning Code of the City of Wichita is changed.

RUANE:  We are making a record here and it is important that things proceed in the 
right way.  Is Scott's understanding correct that the overlay zoning does not supplant the 
Zoning Codes applicability?

DICKGRAFE:  It is an overlay.  I mean you are going to look at the language of the 
C.U.P.  That should be consistent to the underlying zoning of the area to try to get your 
compatibility between the two.

RUANE:  Thank you.  That answers my questions.

FOSTER:  Scott, how did we get to the idea of intensity and so forth?  How can an 
analogy be brought in about the intensity of these uses?  Where do we look in the Zoning 
book to figure that out so to speak?  We are interpretating the Zoning book in terms of 
Mr. Schroeder's view of it.

KNEBEL:  I think the appellant has correctly pointed out the location of the definition of 
intensity.

FOSTER:  I see the definition of intensity, but how does it relate to a C.U.P. here?

DICKGRAFE:  It comes into play in this case because under Article V, Section E-15, 
which is in my memo, Kurt has the authority to interpret the Code so long as those 
permitted uses are similar to and no more intensive than the uses allowed by the C.U.P., 
which is where the whole intensity issue becomes an issue.  Is Kurt's interpretation 
regarding whether or not this is, one, permitted by the language if it is not permitted, then 
two, whether or not this use is more intensive than those permitted, which is how the 
intensity issue arises in this particular interpretation.  

RUANE:  I would suggest that is the sequence that we should address these questions if 
we are going to get to a decision, any other questions of Scott?

FOSTER:  Doesn't seem that if we wanted to do this in some orderly way, and by the 
way we can have a closed session to discuss this, but I don't see any need for it in this 
particular case.  It seems to me that we first ought to discuss are we talking about the 
expectations of people that signed onto this back in 1983 and what they anticipated as 
what they would have if they bought into this area.  Or are we talking about it changing 
over a period of time in terms of what the Zoning regulations provide for now?  And then 
interpret that in terms of intensity?  Are we going to, I think you can look at either way.  
You can look at in 1983 or look at now and in 1983.  You wouldn't be talking about 
intensity.  

RUANE:  If answers to those rhetorical questions would lead to one result versus another 
result, and I would be happy and encouraged to wrestle those to the ground, but I am not 
convinced that they are entirely relevant for one.  But, I leave it up to the Board.

PHILLIPS:  My feeling is that we are not a regulatory Board.  I think we have a fairly 
small duty to do today, and that is to basically either agree or disagree, and if somewhere 
in between that we feel like we need more information, which I think maybe all of this is 
about, if we need more information, we can take that option, and we can render a 
decision at some other point.  But at some point we are going to have to vote, and for me 
having had some experience in these areas, because, as Mr. Austin pointed out, we have 
been involved in designing movies theatres for 20 years, and we have been involved with 
regional as well as neighborhood shopping centers, and we have also, in the process of 
doing that, have had to deal with staff and looked at the way that they have interpreted 
things, and I think the majority of this Board has been long enough, with Ms. Markham's 
exception, that if she has no other questions or needs anything clarified, I think at some 
point we need to basically do our duty, and that is confine the discussion to this Board, 
and at some point I think, expeditiously or judiciously, we make a decision.  

I think that it is a complicated enough question at this point that I can see where some of 
the questions and concerns come from, and I think as it was pointed out very early that is 
a matter of affirming or reversing Mr. Schroeder's interpretation.  Now if  we are going 
to try and interpret his interpretation, I really think that we have taken it to far.

RUANE:  In particular because the burden of persuasion is by City Code on the applicant 
to convince that Kurt's opinion was wrong.

PHILLIPS:  I think that was the way that it was presented to us. I think that is the way 
that it is written, and I think if we perceive it any other way we are not doing what this 
Board is really convened to do.  I think Mr. Foster has a great deal of understanding in 
Zoning, and some of the interpretation, so I think he probably has a little bit of an edge on 
us in that regard, and I appreciate his ability to try and clarify some of the issue, but I 
think I have to keep coming back to what the basic issue is.  Do we agree or disagree with 
Mr. Schroeder's interpretation, and I think we have to make that decision based on the 
information presented by Mr. Austin because that is all we have to go on, and I speak not 
only as an architect with experience in these things, but I live within a 2 ½ mile radius of 
the property so I know the area very well, and I know a lot of the people in the audience.  
At some point, I think we have to sit down and do what we are suppose to do.

FOSTER:  Could we get the sense of the Board?  First of all Mr. Austin has raised the 
question of adding restrictive covenants, which would provide some buffer and 
landscaping and so forth.  In my opinion that should not be added. I do not think that 
C.U.P. can be amended, so to speak, to add the amenities to it and so forth. I would like 
to get some idea of the Board's feelings whether that is an issue anymore.  And then the 
second one Mr. Austin brought up, and used the different, and the audience may not 
know that the factors that Mr. Austin brought up and Mr. Kurt Schroeder responded to 
are the factors used by the Metropolitan Planning Commission when they consider a 
rezoning case or a C.U.P., case and I raise the question whether that is even an issue at 
all.  I am saying they are not an issue.  It is my thought that neither the restrictive 
covenants is not an issue to be considered nor is it a question of factors as whether this is 
good or bad for the area in effect and that kind of thing. I think those two thoughts should 
be eliminated.  

SKELTON:  I agree Mr. Chairman.

RUANE:  If you want to make a motion we could take action on it.

FOSTER:  I would move that the two factors, one the restrictive covenants proposal and 
the issue of whether the factors support or turn down the proposal, be removed from our 
consideration as not being part of our analysis.

RUANE:  I request a friendly amendment that you split that into two motions and we 
vote on each separately.

FOSTER moves SKELTON seconds, that to aid in our discussion that we 
would eliminate the idea that it is possible to consider a restrictive covenant 
as being added to the C.U.P. of the 1983.

RUANE:  There appears to be no discussion.  Let's call the questions.

MOTION carries 5-1 (Ruane opposed).

FOSTER moves to determine that an analysis of factors made by both the 
applicant and Mr. Schroeder which are to determine whether zoning should 
be approved or not approved are not germane to the decision that we should 
make.

RUANE:  Utilizing the typical factors that we use to approving a variance?

FOSTER:  I am saying that the eight or nine factors that were used are part of the 
rezoning and C.U.P. material.  They are not part of the Board of Zoning Appeals 
thinking.  I think that we ought to eliminate so the audience knows that the issue of 
whether this is desirable or not desirable is not an issue for us in that sense.

DICKGRAFE:  I am not sure that the Board needs to make a motion and vote on those 
issues.  The Board needs to make its determination based on everything that has been 
contained in the record either by the applicant or Kurt.  The weight to be given to those 
facts and the analysis of those facts really is up to each individual Board member and if 
we start cutting these things out of the record, we are not going to consider this or we are 
not going to consider, that it will make it very difficult for the applicant and or the City, 
should this be appealed later, to utilize all of the information that has been contained in 
the record.  So I guess I would caution the Board if we are going to start picking apart the 
record, that may not be an appropriate function of this Board right now.  I think you can 
discuss what is in the record, and I think that Bickley can make his arguments of what 
should or should not be considered.  I will be happy to respond to any of those questions 
that would be asked, but if you start cutting out, we are not going to consider this, we are 
not going to consider that, it will make this record essentially worthless and very difficult 
for anyone to try to appeal, and for this Board, when we get to a motion stage, to set forth 
in that motion the facts that it did rely on in making this determination.

FOSTER:  But, Sharon wouldn't you agree that there are actually three decisions that 
could be made, and the Chairman mentioned those, and one is to…

RUANE:  Let's try not to backtrack.

FOSTER:  One is to even modify, and that would be a possibility to.  

DICKGRAFE:  That is correct.

FOSTER:  I leave my motion that we should not be considering the factors that decide 
whether a theatre is desirable or not desirable, so to speak, at that location.  That is what 
both the applicant and Mr. Schroeder is speaking to.

RUANE:  I understand your motion is there a second.  With no second the motion dies 
for lack of a second.  Any commentary or motion toward reaching the ultimate decision 
that is our task?

SKELTON:  I think what I am going to do is to vote to affirm Mr. Schroeder's decision. 
His letter dated August 22, 2002 to Mr. Austin clearly spells it out to me, and placing 
emphasis on the first two paragraphs on the second page, and I do think his interpretation 
is reasonable.  

RUANE:  Thank you.  Any other questions or comments?  As we put together a motion 
be mindful of the facts that we must make specific findings of fact that would support our 
decision one way or the other, so as a motion comes forward be thinking of those, and 
perhaps we can work as a committee to come to a vote.  Would there be a motion at this 
time?

PHILLIPS moves MARKHAM seconds, TO AFFIRM THE DECISION OF THE
ZONING ADMINISTRATOR

	HAVING CONSIDERED THE ENTIRE RECORD REGARDING THIS 
MATTER AND HAVING HEARD THE EVIDENCE AS PRESENTED TO THE 
BOARD HERE TODAY, I MOVE THAT THE BOARD MAKE THE 
FOLLOWING FINDINGS:  

1.	That the Board of Zoning Appeals has jurisdiction to hear this 
appeal, pursuant to K.S.A. 12-759(d) and Section 2.12.590 of the 
Code of the City of Wichita, Kansas; 

2.	That the Board makes the following finds of fact:  

a)	That the Zoning Administrator, pursuant to Article V, Sec. H 
(1) of the Wichita-Sedgwick County Zoning Code, had the 
authority to make the interpretation of the zoning code issued 
on August 22, 2002.  

b)	That the language of the CUP (DP-104) limits the use of the 
parcel at issue  to those proposed by the express language of 
the CUP.  

c)	The interpretation made by Kurt Schroeder was supported by 
the language contained in Wichita-Sedgwick County Unified 
Zoning Code and the express language of the CUP defining the 
allowed uses.  

d)	The proposed use of the parcels as an indoor theater is not a 
similar or less intensive use than those allowed by the express 
language of the CUP.  

e)	The restrictive covenants for adjacent property do not provide 
sufficient mitigation for any adverse impacts caused by the 
proposed use of the property.   

3.	The Board further finds that the interpretation of the Zoning 
Administrator as set forth in his letter of August 22, 2002, was 
reasonable and is supported by the evidence presented at this 
hearing.  

4.	The Board further finds that the appellant has not met his burden 
of proof to show that the interpretation was in error.  

THEREFORE, BASED UPON THE FOREGOING, I MOVE THAT THE 
INTERPRETATION OF THE ZONING ADMINISTRATOR HEREIN BE 
AFFIRMED.  

DICKGRAFE:   I may make one point of order that the motion with the language 
regarding the restrictive covenants would seem to be inconsistent with the Board's prior 
ruling indicating the restrictive covenants was not going to be considered and just make 
that a point of order for the Boards determination as to how they wish to proceed.  

RUANE:  Any change to motion?

PHILLIPS:  The only change would be to recognize that note.  

FOSTER:  What was his position or what are reading his position on the restrictive 
covenants?  Is he including them in his analysis in your opinion?

PHILLIPS:  I am moving to affirm that his interpretation was valid.  

FOSTER:  Are you saying that he took into account the restrictive covenants to make 
that determination?  Do they immoderate the problems related to putting a theatre there or 
not?

RUANE:  His says that the restrictive covenants do not provide sufficient mediation.  So 
it is considered not to be sufficient.  So I think that it can be read as internally consistent 
and hope anyone else looking at this issue sees it the same.  We have a motion and 
second, further discussion?

FOSTER:  As much as I would like to agree with Mr. Schroeder.  The zoning 
regulations are not supposed to be vague, and I have not heard or not read, and I have 
read every word of this, that I do not find a clear understanding that the Zoning 
Administrator has the opportunity to at this time in history to review this any different 
than they would back in 1983 as to the intensity and so forth, and I see no connection to 
this question of intensity, and I so I also do not agree that the Zoning Administrator has 
an opportunity to consider the restrictive covenants which are offered. I don't think that 
you can come back at this late date and add restrictive covenants and have them even be 
considered.  I don't think that his analysis using the analysis of MAPC like a rezoning 
case is germane to this.  So I feel that it is rather an inconsistent statement as much as I 
would like to agree with him, but I don't think that it is very clear that is possible to take 
this and interpret that particular use today differently than it was in 1983, when it would 
have been allowed, so I will vote against the motion.

RUANE:  I understand your comments, but things change.  In 1982 no one ever even 
dreamed that there would be a 14 screen mega-plex movie theatre.  I think the Crest 
theatre may have even been still open.  That was kind of our idea what going to a movie 
was like.

FOSTER:  I am saying that the zoning regulations have not kept up with it in terms of 
making this kind of determination.  You heard Mr. Schroeder say that it does not define 
the differences between the different sizes of theatres. I am saying that we have a 
deficiency in the wording in the zoning regulations to clearly give us direction in this.  I 
would like to see the decision made otherwise, but we ought to have it clearly in the 
zoning regulation.  We have a whole list of shopping centers here that are allowed 
theatres, and we have heard nothing to the contrary that they were not allowed as part of 
shopping center.

MARKHAM:  Mr. Foster, you are saying that in coming to this conclusion, I am trying 
to understand what you are saying, in reaching his conclusion then the administrator was 
correct but you are saying that he should not use restrictive covenants in intensity as 
supportive evidence in his decision.  Is that what you are saying?

FOSTER:  A little larger than that.  One, I don't think that he should use restrictive 
covenants because I don't think they can be brought into it, and number two, I don't think 
that he can use the eight or nine factors as an analysis as to whether it is desirable or not 
desirable, and I don't make the connection between the analysis of intensity today versus 
what it might be in 1983.  You heard Mr. Lambertz indicate he has probably developed 
more shopping centers then anybody in this room, and he includes a theatre in those 
shopping centers and that is what was done years ago.  We wouldn't have even had a 
meeting today, and so I think that people ought to expect what they bought into.  They 
bought into a C.U.P. that at the time that it said if we looked at it when people bought 
their land and so forth, it would have allowed a theatre at that time, and I am saying the 
zoning regulations did not keep up with that.

RUANE:  I will argue back with you.  If I bought one of those houses on Texas Street, 
which was within this C.U.P., and I got my title work as I was trying to go to closing. I 
would read that on these tracts of land there could not be anything other than an indoor 
recreation such as a theatre which would be indoors.  

FOSTER:  That is what this is.  This is not a drive-in movie theatre.

RUANE:  What other discussion do we have?  Is there objection to calling the question?  
We have the motion and it is a motion to affirm the decision of the Zoning Administrator. 
We have a second.  We have had a spirited discussion, and it appears that we are ready to 
cast our votes.

MOTION TO AFFIRM ZONING ADMINISTRATORS DECISION vote 5-1 
FOSTER OPPOSED.

RUANE:  So this means that the administrative interpretation by the City stands.  Now 
you are free to leave and thank you for being so patient and kind.  We still have other 
items to take care of, so if you will please leave quietly, we will keep cranking through.  
J.R. what is the report from Central Inspection with compliance with requirements of 
various cases.

COX:  I will be more than happy to wait until the next meeting.

RUANE:  I think that is a great idea.

SKELTON moves PHILLIPS seconds:  To table J.R.'s report until the next 
meeting.

MOTION CARRIES 6-0

MEETING ADJOURED 3:54 p.m.
BZA MINUTES                   OCTOBER 22, 2002                    PAGE 37