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ANDOVER CITY PLANNING COMMISSION /

BOARD OF ZONING APPEALS

January 16, 2007

Minutes

 

The Andover City Planning Commission met for a regular meeting on Tuesday, January 16, 2007 at 909 N. Andover Road in the Andover Civic Center.  Chairman Quentin Coon called the meeting to order at 7:00 p.m.  Commission members present were Jan Cox, Byron Stout, David Martine, Lynn Heath, Jeff Syrios, and Ray Jessen.  Others in attendance were City Council Liaison Member Caroline Hale, Administrative Secretary Deborah Carroll, Director of Public Works and Community Development Les Mangus, and Clerk/Administrator Jeff Bridges.

Call to order

 

 

Review the minutes of the regular November 21, 2006 Planning Commission meeting.

 

Janice Cox made a motion to approve the minutes as presented. Lynn Heath seconded the motion. Motion carried 7/0.

Review the minutes of the regular Nov. 21, 2006 PC mtg.

 

 

Communications:

Review the City Council minutes from the December 12, 2006 and December 26, 2006 meetings. The minutes were received and filed.

 

Review the minutes of the January 2, 2007 Site Plan Review Committee Meeting. The minutes were received and filed.

 

Review the minutes of the September 12, 2006 Subdivision Committee Meeting. The minutes were received and filed.

 

Review the Potential Residential Development Lot Report.

Communications

 

 

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 consideration.

 

Les 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.

 

Quentin 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.

 

Lynn Heath said there needs to be more comprehensive guidance.

 

Les 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.

 

David 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.

 

Jeff 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.

 

Lynn Heath stated there are other locations in Andover this business could be located.

 

Byron 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.

 

Quentin Coon did not agree that the zoning of the Industrial Park needs to change. Janice Cox agreed with Quentin.

 

Ray 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 park.

 

Jeff 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 Industrial Park.

 

Les 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 changes:

  1. Change the entire park to B-6 zone which is the same uses as the I-1 zone, it just has some restrictions.
  2. The 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.
  3. The 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 District Court.

 

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 this site.

 

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:

1.      Strike 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)

2.      Uses of remainder of park- move the B-6 line on Andover Road back further. (Currently 175’) Suggested 500’- 700’.

3.      To 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 covenant.

 

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 action.

 

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 and void.

 

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.

 

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 (C) 5:

Other 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 employees thereof.

 

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 record.

 

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 “research”.

 

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 correct.

 

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:

1.      Send a new recommendation back to the City Council changing your position.

2.      Make another motion to deny it based upon some new factors.

3.      To 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.

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.

 

 

Member items: none

 

 

 

Lynn Heath made a motion to adjourn the meeting at 9:15 p.m. Janice Cox seconded the motion. Motion carried 7/0.

Adjourn

 

 

Respectfully Submitted by

 

__________________________

Deborah Carroll

Administrative Secretary

 

Approved this 20th day of February 2007 by the Andover City Planning Commission/ Board of Zoning Appeals, City of Andover.