SU-2006-05: Special Use
requested to establish a Fitness/Sports performance training facility in the
I-1 Industrial District located at 317 E. Commerce. This case has been
returned to the Planning Commission from the City Council for further
Mangus Memo: The Governing Body has returned this case for further
consideration after an extended debate about the fate of the Andover Industrial Park. No conclusions were reached from these debates, and the Promote
Andover group stands firm that the Park should retain the industrial/heavy
commercial uses. The applicant desires to convert the existing industrial
building from office and storage uses to a fitness/sports performance training
facility. All of the zoning documents suggest against the intermingling of
industrial and non-industrial uses. The intent and purpose of the I-1
Industrial District is to provide for light industries, with retail and
service businesses which provide a particular service or convenience to
industrial uses or employees thereof. The Comprehensive Plan suggests against
the conversion of industrial land to other uses. The proposed use is not
necessarily incompatible with the existing industries, but could cause some
concern for conflicts with future industrial uses at this location in the
middle of an industrial park. Staff supports the original recommendation that
the application be denied based on the suggestions of the intent and purpose
of the I-1 Industrial District and the Goals of the Comprehensive Plan. If at
some point comprehensive changes to the current zoning of the entire
Industrial Park are made the proposed use could be re-evaluated.
Coon asked if the City Council had any comments or further information that
the Planning Commission is to use in the reconsideration. Les said there has
been discussion in both the City Council workshop and regular meetings about
the changes in the use of the Industrial Park in its entirety. He said there have
been lots of opinions because the park has been fairly slow moving. There
were no specific instructions; they were just open to some changes in the way
the park in its entirety is used. Les said both the Comprehensive Plan and
the existing zoning would need to change to allow this special use.
Heath said there needs to be more
stated the applicant can request the change of the zoning of the property
they control; only the Governing Body or the Planning Commission can strike
up a zoning change in mass with multiple owners.
Martine said he thinks the City
Council sent this case back to the Planning Commission because they are
searching for further information. David continued to share his ideas for
placement of light vs. heavier industry in the remaining Industrial Park. He
also mentioned allowing mixed uses in this Industrial Park.
Syrios stated the special use request
needs to be dealt with tonight. Jeff does not think approval of this request
would send a message to the City Council that the Planning Commission wants
the property to be rezoned, he preferred the Planning Commission file for a
zoning change. He does not want to see a zone recrafted by allowing special
uses, and reminded the members it is their duty to guide this zone.
Heath stated there are other locations
in Andover this business could be located.
Stout was concerned about the amount
of time this applicant has to wait until this issue is decided. He also named
other existing businesses in this area that have had special uses granted.
Coon did not agree that the zoning of the Industrial Park needs to change.
Janice Cox agreed with Quentin.
Jessen said he feels from watching the last City Council meeting that Mayor
Lawrence is in strong support of the Industrial Park changing to a business
Syrios asked Les for more information
to expedite this process for the applicants. Les said he feels the Planning
Commission is willing to take a hard look at changing the look of the
explained that both the Planning Commission and City Council have taken split
votes on the handling of this special use case. He said it needs more time to
make a responsible decision. Les has heard the following 3 opinions for
the entire park to B-6 zone which is the same uses as the I-1 zone, it
just has some restrictions.
buffering of the residential neighborhood to the south which has grown
against the boundary of the Industrial Park. Allowed uses would still be
unacceptable to the abutting neighborhood to the south.
covenant that is filed on the existing platted Industrial Park lots,
will take the signatures of all the owners of all the lots to change the
allowed uses. The recorded covenant says the only things that are
allowed in the park are businesses or industries that produce something,
and includes research. To override the covenant would take action of the
Byron Stout asked if the
vacant lots in the Industrial Park are owned by the city. Jeff Bridges said all but 2 are. Les said there are multiple owners of the other lots. Les said
it would take an agreement of all the owners to change the allowed use of
Jeff Bridges said PAI has an
agreement with the City of Andover in the transfer of land that the City will
consult with PAI on all activities related to the park, and all decisions
related to the park. General discussion continued about some members of PAI
owning some property in the Industrial Park.
Jeff Syrios asked Les if he
had ideas for possible solutions. Les asked the Commissioners to consider:
up a zoning case to change the zoning on someone else’s land. (Strip of B-6
with a Protective Overlay as a buffer to Crescent Lakes)
of remainder of park- move the B-6 line on Andover Road back further.
(Currently 175’) Suggested 500’- 700’.
allow all the uses that are allowed in the zone, not those that the covenant
has cherry picked. The City of Andover has 1 vote in the change of the
David Martine stated 1 out
of 5 of the existing businesses in the Industrial Park today is in compliance
with the covenant.
There was further discussion
whether the current City Council is in favor of changing the plans for the
Industrial Park. Les said if any of the current owners chose to take up a
suit in District Court, they could sue against this use that is contrary to
the covenant. Folgers Gymnastics is removed from this discussion because the
covenants exclude that lot.
Byron Stout wanted to insure
the applicants understand their exposure to legal action if they pursue this
Quentin Coon asked if the
Planning Commission would be setting the city up for liability if a motion
was approved that contradicted the covenant. Les said the city is not bound
to uphold a covenant and any liability issues would have to be addressed by
the City Attorney. Les said a breach of the covenant does not make it null
Discussion continued about
the interpretation of the covenant.
Ray Jessen asked why the
property owner of this lot offered it for sale when they knew the proposed
use would not comply with the existing covenant.
Quentin Coon stated any process
for changes made to the Comprehensive Plan is open to public input. Les said
that even though the Comprehensive Plan suggests against conversion of
industrial land, the change could be substantiated and can be made contrary
to that plan.
Lynn Heath suggested a
committee be formed to study the issue of change for the Industrial Park.
Jeff Bridges stated this
park was purchased in 1995-1996. The area on 13th owned by Pratt
& Lambert was purchased in the 60’s. Byron Stout suggested the buyers of Crescent Lakes had prior knowledge of the Industrial Park and its uses before expanding
their development. Jeff Bridges stated there were numerous conversations with
Bob Whittaker as to the future of this industrially zoned property.
Byron Stout stated the City
of Andover is speaking for itself by the uses currently being allowed within the
Industrial Park. Jeff Bridges said the citizens let this happen, but it is
the duty of the Planning Commission to “plan” for the future growth of the
community. Most cities preserve some opportunity for high paying, high tech,
manufacturing jobs. If this area is not preserved for that, then some other
suitable property needs to be obtained.
David Martine asked how many
acres are undeveloped up to the platted lots. Les said there are 50+ acres
still unplatted. Only 8 lots are platted today.
Jeff Bridges said there is
plenty other land available for this type of use. There is no other property
already zoned as industrial that already has utility lines run to it. General
Discussion continued about
allowing mixed uses in the Industrial Park. Jeff Syrios asked the members if
they are dead set against changing the allowed uses in this area. Jan Cox
said yes she is. Lynn Heath said he wants to study the issue before approving
the special use request tonight. Quentin Coon stated he is in favor of
looking at changes.
Jeff Syrios stated although
he would like to see the property owners have their own way, proper research
and procedures must be followed. David Martine stated several applications for
special use prior to this one have been decided by this board on a
case-by-case basis. Les stated the application is not for one listed but
under “all the others”. From the zoning regulations Article 4, Section 115
special uses not otherwise specifically listed which are in keeping with the
intent of Section 4-115 and compatible with the uses permitted in Section
4-115A, except that uses of a more intensive type may be allowed at selected
locations if acceptable environmental conditions are specified. Such other
uses may also include retail and service businesses which provide a
particular service to the industrial uses or serve as a convenience to the
The applicant asked if he
would be allowed to speak. Quentin Coon stated initially this was not
scheduled as a public hearing, but the Commissioners did want to hear any
helpful information from interested parties and would create time soon.
Byron Stout wanted to know
if the applicant was willing to take the risk of legal action because they
are not in conformance with the covenant.
Chairman Coon asked the
applicant to approach the podium and state their name and address for the
Paul Driver of 12410 E.
Meadow said he is confused about who PAI is. He was under the impression the
Planning Commission was to base their decisions on the best interests of Andover, not of the PAI group. He continued to express his opinion that there is no room
available, nor is it suited for any industry at this point because the city
has grown around this land. Paul said he has provided letters of support for
his company from surrounding business owners in this area. Paul stated the
existing Sherwin Williams Co. does not “make” anything either. The Planning
Commission has previously approved the bus barn, college, and others. Why
turn down a fitness center? He said the question really is, do you really
want to develop this land because this land is a business park already.
Kevin Cedarburg of 753 Bramerton
asked why the commission would not be in favor of changing the zoning of this
park to B-6. Jan Cox said this is the first time the request has been made. He
then asked several questions about the power of the covenant, enforcement of
it, previous special use applications. Les explained about the bus barn not
being part of the Andover Industrial Park covenants, it is a separate piece
of property that was platted and zoned as the Andover Industrial Park. The
covenant in question only applies to part of the 8 platted lots. It will not
apply to the undeveloped 50+ acres. Les said the enforcement of covenants is
between the owners. The bus barn is permitted by the zone even though it is
contrary to the covenant. Les stated the bus barn is a special use in the I-1
zone because it is a public building.
Kevin Cedarburg asked Jeff Bridges about the consultation agreement between PAI and the City of Andover on all lots
sold in the Industrial Park. Jeff said Mayor Lawrence has asked the city
attorney to review that agreement and find out obligations the city has
related to that agreement.
Kevin Cedarburg said their group was not informed of the
covenant prior to this. Jeff Bridges explained the covenant was established
by PAI as landowners. The PAI partnership is a public-private partnership
between the City of Andover and the other directors of PAI. The city holds
seats as directors on the PAI board. Jeff said he is an ex-officio member of
the board with no voting authority. Kevin Cedarburg asked for the definition
of high-tech/ high-paying jobs in an industrial park. Questions and answers
continued. Jeff Bridges said the Sherwin Williams aerospace research
laboratory would apply. Kevin said he did not agree with having industrial
zoning along the busiest street in the city.
Tim Simoneau of 1018 Park Road, Rose Hill, Kansas said he did not understand the covenant. He asked further
questions about possible consequences of continuing with this special use
application. He was very critical of this process and the lack of information
they as property buyers were given prior to signing the contract. Quentin
Coon reminded Mr. Simoneau the duty of the Planning Commission is to guide
land use. Tim agrees with Kevin Cedarburg that this Industrial Park area will
never be developed if the owners are waiting for only industrial users.
General discussion continued.
Caroline Hale asked if the
original piece of land that they were looking at is part of the 8 platted
lots that are operating under this covenant. Jeff Bridges said yes.
Byron Stout asked further
questions about covenants. Jeff Bridges said it will take further
consultation with the attorney. Les said covenants are meant to transfer with
the sale of the land as recorded by the Register of Deeds and cannot be
changed without an agreement of all parties.
Ray Jessen asked why the
discovery of the covenant is not part of the application process. Les said
this should have been brought up between the buyer and seller. Les explained
he had a discussion with the City Attorney on this matter and was advised to
check the covenant.
Byron Stout asked the
applicants if they are withdrawing the case. They said no, they want to hear
the final ruling of the City Council.
Wes Sawyer of 14921 Sharon Lane asked why Folger’s Gymnastics is not part of this conversation regarding
their use. Les said Folger’s is a completely different zone and he is not
sure they are part of the covenant. Les said he did not know it their use was
designated prior to platting or not. David Martine asked for the zoning of
Folger’s. Les said it is B-3 Central Business but sits on an Industrial Park
platted lot. Wes asked for the zoning of the Collision Center of Andover. Les
said it is B-6 Business District. Wes asked for the zoning of the bus barn.
Les said it is I-1 Industrial District with a special use for a public building.
Discussion continued about uses allowed under the covenant and the various
visions of community leaders for the Industrial Park. There was discussion
about “research” facilities being allowed. Les stated these applicants need
to obtain a copy of the covenant.
Wes asked if the City of Andover owns land in the Industrial Park. Jeff Bridges said yes. He asked if the City of Andover intended to enforce the covenant it has on its land against the other users in the
park that don’t meet the covenant of the land the City of Andover owns. Jeff Bridges said that will be a question for the City Council. Jeff said considering PAI board
has City Council members on it, and City planning commission members on it,
the city has been familiar with the covenant since its creation. The covenant
was adopted in agreement with the City Council that sat at the time in 1995.
Wes asked the Planning Commission and City Council to move forward to make
the Industrial Park more of a business park.
Tim Simoneau returned to ask
what would constitute a “research” facility. Discussion continued about this
fitness and training facility being designated under the pretense of
Jeff Bridges explained PAI’s
vision for this property has been more broad than just I-1 zoning. Tim continued
to explain this proposed facility will not be just a gym but a state of the
art performance training center.
Les said these are ambiguous
terms in the covenant restrictions. The covenant states “Each lot shall be used only for manufacturing, processing,
storage, wholesale, office, laboratory, professional, and research and
development activities”. Les said the definition of research will have
to come from the District Court. Jeff suggested the applicants return to PAI
board to discuss the research activity on this lot. Jeff also cautioned these
applicants whether the businesses submitting letters of support, legally had
the authority to do so. Discussion continued.
Tim Simoneau asked if this
application could be considered as a research facility. Jan Cox said the
applicant could reapply under the status of a research facility if that is
Caroline Hale asked how many
lots are owned by the City. Jeff said all the vacant lots except for the 2 on
the south side. Jeff continued to explain that rezoning this lot to B-6 will
not provide this applicant any relief.
Les Mangus read from the
zoning regulation definitions: “The intent and
purpose of the I-1 Industrial District- this district is designed for light
industrial uses which do not require large amounts of land, generate modest
amounts of traffic, are consistent with the capacity and availability of
public and private service, create limited environmental problems in the way
of odor, smoke, dust, glare, vibrations, or sound, and do not permit the
intermixing of residences”. Les quoted the permitted uses: #20.
Research Laboratories- From Webster’s Dictionary: “A systematic search for facts- scientific investigation”.
David Martine made
a motion to approve this special use as presented and send it back to the
council and let them decide the future of the Industrial Park based upon #6
& #10. Lynn Heath seconded the motion. General discussion continued about
sending a message from the Planning Commission to the City Council that we
would like change. David Martine continued to ask for this special use to be
approved based upon the surrounding owners support and the lack of evidence
to prove this business will not be bad for the community. There was
continued discussion about the methods to change the zoning in the Industrial
Park by private party action or by Planning Commission action.
Les Mangus said what is
before you today is an application for a fitness/ training facility. If they
want to come back tomorrow and apply for a zoning permit for a research
laboratory, we will ask for more information and will make a determination
based upon that information. Les said he does not have enough information
tonight to make a decision. If the applicant disagrees with Les, they could
be heard by the Board of Zoning Appeals for review.
Motion failed 3/4 with
Jan Cox, Lynn Heath, Quentin Coon, and Jeff Syrios opposition.
Les explained there are 3
options at this point:
a new recommendation back to the City Council changing your position.
another motion to deny it based upon some new factors.
do nothing, to say that the original motion stands.
Jeff Syrios asked for more
direction from Les about the next motion that needs to be made. Les said a
motion to strike up a zoning case must be very specific, define the boundary
of the land area, and define the change just to the land or to the text of
the zoning regulations and change to the land.
David Martine made
a motion to create a joint committee of the Planning Commission and City Council
to revisit the issue of rezoning the Andover Industrial Park. Jeff Syrios seconded the motion.
Lynn Heath made a
friendly amendment to the motion for the study committee to include members
of PAI. David Martine accepted the friendly amendment to his motion. Byron Stout seconded the amended motion. Motion carried 7/0.
Jeff Syrios made a
motion to let the original motion for denial of the special use application
for case SU-2006-05 stand. Lynn Heath seconded the motion. Motion carried 4/3
with Byron Stout, Ray Jessen, and David Martine in opposition.