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Public Hearing of BZA-A-2000-01, Appeal of a
decision of the Zoning Administrator by Terry Presta, of Presto Oil, at 2035
N. Andover Road, Andover, Kansas.
ANDOVER BOARD OF ZONING APPEALS
Agenda
Item No. 9
CHECKLIST FOR CONDUCTING A PUBLIC HEARING ON AN APPEAL FROM THE
DETERMINATION OF THE ZONING ADMINISTRATOR
CALL TO ORDER BY BOARD OF ZONING APPEALS CHAIRMAN
McEACHERN:
It is 10:09 p.m. and I now call Agenda Item
No. 9 which is a public hearing on Case No. BZA-A-2000-01 pursuant to Section
10-106 of the City Zoning Regulations as an appeal from a determination of
the Zoning Administrator with respect to the interpretation, application or
enforcement of the Zoning Regulations. We would like to welcome everyone
interested in this hearing and lay out a few ground rules:
1. It
is important that you present any facts or views that you have as evidence at
this hearing so that findings can be made as a basis of facts for the
decision of this Appeals Board.
- This
Board is authorized by state statutes to make a decision appealable only
to District Court and not to the Governing Body.
- I
will call upon the Zoning Administrator to describe his determination
and then the appellant to make his appeal. After them, we will hear
from other interest parties. After all have been heard, each party will
have an opportunity for final comments. The Board will close the
hearing to further public comments and they will then consider their
decision during which time they may direct questions to the Zoning
Administrator, appellant, the public, and staff or our consultant.
- In
presenting your comments, you should be aware that the Board may affirm
or reverse, wholly or partially, or may modify the order, requirement,
decision or determination appealed from, and my make such order,
requirement, decision or determination as ought to be made, and to that
end shall have all the powers of the Zoning Administrator. Furthermore,
the Board may issue or direct the issuance of a zoning permit and/or
occupancy certificate. Conditions may be attached to such a decision
that could have otherwise been available to the Zoning Administrator in
making the initial decision. The Board shall render a written decision
in the form of a resolution on the appeal without unreasonable delay after
the close of the hearing, but within at least 45 days after the close of
the hearing.
- You
should also be fully aware that if the appellant chooses to describe
various aspects of their appeal, the City can only enforce those
provisions which are covered in zoning and other City codes.
Anyone
wishing to speak must be recognized by the Chairperson and give their name
and address.
DISQUALIFICATION DECLARED AND QUORUM DETERMINED:
Before
we proceed with the hearing, I’ll ask the Board members if any of them intend
to disqualify themselves from hearing, discussing and voting on this case
because they or their spouses own property in the area of notification or
have conflicts of interests or a particular bias on this matter. No member
disqualified themselves.
NOTIFICATION:
According
to the Secretary, a notice for this hearing was published in the Andover
Journal Advocate on August 24, 2000 and notices were mailed to the appellant
and the real property owners of record in the area of notification on August
22, 2000. Unless there is evidence to the contrary from anyone present, I’ll
declare that proper notification has been given.
EX PARTE COMMUNICATIONS:
I
will now ask the Board members if any of them have received any ex parte
verbal or written communications prior to this hearing which they would like
to share with all the members at this time. As you know, it is not necessary
to disclose the names of the parties, but to share important information.
(If any written communications are presented, such material might better be
read just before the close of the hearing.)
BACKGROUND FACTS:
There
are certain preliminary background facts which we need to determine.
1. Was the appeal made
within 30 days of the decision by the Zoning Administrator?
Yes.
2. Has the Appellant
submitted a statement specifying the grounds for appeal? Yes.
3. If requested by the
Chairperson, has the Appellant submitted a drawing attached to the
application?A drawing was not requested.
4. Has the Zoning
Administrator transmitted to the Chairperson all the record upon which the
appeal is based? Yes.
5. Have all legal
proceedings, if applicable, been stayed in accordance with Section 10-106 C
of the Zoning regulations? Yes.
ZONING ADMINISTRATOR’S
DETERMINATION:
I will now call on our
Zoning Administrator, Les Mangus, to provide us with a brief factual
background report on his determination.
Les Mangus stated that the
appellant is protesting the following items:
1. Construct
a 6 foot cedar fence trash dumpster screening area at the southeast corner of
the building with protective ballards at the corners of the concrete slab on
property zoned as the B-3 Central Shopping District.
2. Construct
a blue metal fascia on the West side of the building to match the existing
north and east sides of the building.
3. Place
six 5-6 foot evergreen trees along the south edge of the parking and gas pump
area, and six 5-6 foot evergreen trees along the west edge of the site.
4. Construct
hard surface paving of the areas south and west of the building used for
truck traffic circulation, or close the access to those areas if left
unpaved,
Les Mangus also stated that the Zoning Regulations
charge the Planning Commission to require a paved driveway to a public
street. Mr. Mangus stated that Joe Freeman, Chairman of the Site Plan Review
Committee is here to support the conditions of the Site Plan Review
Committee. Les Mangus asked if any of the Commissioners had any questions
for him, there were none.
APPELLANT’S APPEAL:
I now call upon the appellant to come to the podium
and make his presentation on the appeal.
Terry Presta, the president of Presto Oil, 15434 Ironhorse Circle of Leawood, Kansas, is the appellant. He stated he has been in the
convenience business for 20 years. He has known Bill and Charlotte King
since the early 80’s. Approximately 3 years ago Bill King approached Mr.
Presta about doing business in Andover. Mr. Prests signed a lease
approximately 2 years ago.
When his company pulled permits for the remodeling,
they were informed of the Site Plan Review Committee. He was surprised as he
didn’t think that would apply with a remodel. He had never seen that
before. There was a rush on getting the permits and such as they had to get
a permit from the EPA by the end of December, 1998. The EPA extended the
deadline and they got the EPA approval and got the tanks done. Mr. Presta
stated that he spent $750,000 to remodel the two stores to bring them up to
Presto standards, as they have a long term lease. The diesel fuel was at the
Central store. He wanted to discontinue the diesel altogether however the
King’s persuaded him to keep the diesel and he chose to move it to the north
store.
When the store went in front of the Site Plan Review
Committee it was plain that one member in particular did not like the
presented plan. After discussion, a motion was made for approval so the
building permit could be pulled with final comments to come back with a final
landscaping plan. Mr. Presta feels it is odd to require that a person is to
landscape the city right of way. When Mr. Presta came back before the Site
Plan Review Committee for landscaping they came with a very detailed plan.
Mr. Presta stated that the landscaping was completed and very costly. He
doesn’t feel they should have to landscape city property. Mr. Presta
discussed the 4 items he is appealing as follows:
1. Construct
a 6 foot cedar fence trash dumpster screening area at the southeast corner of
the building with protective ballards at the corners of the concrete slab.
Mr. Presta stated he has no problem with the screening but feels the paving
issue should be addressed prior to his doing any screening.
2. Construct a blue
metal fascia on the West side of the building to match the existing north and
east sides of the building. Mr. Presta stated that he was coming for
landscaping and this was added later and this should not have been added.
3. Place
six 5-6 foot evergreen trees along the south edge of the parking and gas pump
area, and six 5-6 foot evergreen trees along the west edge of the site. Mr.
Presta stated that he has leased part of the property and his lease states he
cannot block any egress on the property. He stated this is on Mr. King’s
property, not in his leased property and Mr. King doesn’t want the trees on
his egress.
4. Construct
hard surface paving of the areas south and west of the building used for
truck traffic circulation, or close the access to those areas if left
unpaved. Mr. Presta states that this is a zoning issue, as has been stated
many times by others. He wants the driveway open for truck traffic. He has
invested a lot in the property. Mr. Presta feels the issue is between Mr.
King and the City of Andover. Most of this is on Mr. King’s property. He
also stated he has told Mr. King he would pay half or up to $20,000 for the
hard surface.
Mr. Presta feels it is
unfortunate to make this large of an investment and have the Site Plan Review
Committee add so many items not under their control. Mr. Presta contends that
these issues are not under landscaping, however he would do the screening if
the rest could be worked out.
John McEachern asked what
diesel has to do with the road. Mr. Presta stated that the diesel is at the
far south pump. The location makes it easier for the drivers to come from
the rear of the building and pull up to the pump. The majority of the diesel
business is from the Andover school district and he feels that the Commission
will give no consideration for the school district buses if the Commission
requires paving.
Mr. Presta states he is trying
to run a good business and doesn’t want to “be put through the paces” by the
Site Plan Review Committee. He also summarized and stated that he disagrees
with these 4 conditions, as they were not part of the original approval.
PUBLIC COMMENTS:
There were no comments from
the public.
Les Mangus asked Joe Freeman,
the Site Plan Review Committee Chairman to address the Planning Commission
about this issue. Mr. Freeman stated that he reviewed the minutes from the
Site Plan Review Committee for the past 18 months. He stated that the
initial review was a sketchy plan that the Site Plan Review Committee members
deemed inadequate for landscaping but approved the structure to allow the gas
islands, and the applicant was to return to the meeting for the following
month with the landscaping plans. Mr. Freeman stated that the applicant came
back several months later, in September with a site plan. The items normally
asked for in the review process includes screening, trees, driveway
information, etc. Mr. Freeman stated that the Committee felt the tracking of
mud on the city streets was a detriment to the community, the screening was
an attempt to soften the hard exterior, and the facia needed to continue
around the building so as to present a nice entrance into Andover on 21st Street from the West. Mr. Freeman stated that that Presto’s agent revised
the plans, and came back in October. He stated that no action was taken by
the Site Plan Review Committee in October and the September plan is the
approved one. He stated that no objections were raised on the fascia at that
time. Quentin Coon asked what was the action in October. Mr. Freeman stated
that the revised plan deleted the cedar trees, provide for a paved road.
This was not acted upon, and the September plan was kept in place.
Joe Robertson asked if the
facia was necessary or could the stripe be painted on the building. Joe
Freeman stated that the facia needs to match existing to look like a continuous
band around the building. Joe Robertson asked if paint would work. John
McEachern stated paint would not work as the facia is projected above the
eave of the roof and is at an angle. The facia helps to cover the roof top
equipment.
Joe Robertson asked if the
trees in question were on Mr. King’s land. Mr. Freeman stated the trees
should be on the applicant’s property or on the street right of way. He also
stated that the Site Plan Review Committee tries to get the landscaping
inside the property line but if there is no area it can go on the right of
way.
ZONING ADMINISTRATORS
RESPONSE TO APPELLANT’S APPEAL AND PUBLIC COMMENTS;
Les Mangus stated that the
site drawings received have never been accurate. Some drawings have
dimensions but there were no accurate drawings and dimensions. There was no
drawing done of the extents of the leased land. John McEachern asked if we
can get an accurate drawing done of the leased land.
APPELLANT’S RESPONSE TO ZONING ZDMINISTRATOR;S
DETERMINATION AND PUBLIC COMMENTS:
Terry Presta feels the Site
Plan should either block the entrance or pave the entrance. Mr. Presta’s
problem is that Mr. King won’t allow the entrance to be blocked. He also
stated the buses will have problems with egress. Mr. Presta also stated that
his lease does not allow for the egress to be blocked. Mr. Presta stated
that there were color pictures in March. He stated he would prefer entrances
to be kept open. These entrances would enhance the traffic circulation. Mr.
Presta does not feel this is a Site Plan Review issue, it is a zoning issue
as Mr. Kimble stated in the past, according to the minutes from the Site Plan
Review Committee.
WRITTEN COMMUNICATIONS:
There were none.
FINAL PUBLIC COMMENTS:
There were none.
CLOSE PUBLIC HEARING:
Chairman McEachern closed the
public hearing.
APPEALS BOARD
DELIBERATIONS:
Chairman McEachern
complimented Mr. Freeman, chairman of the Site Plan Review Committee for his
input and also Mr. Presta for doing was what requested. The back of the
building is the problem. The rest of the store is very attractive. Chairman
McEachern asked if the City can block the driveways. Mr. Mangus stated we
cannot deny access to any property. Mr. Mangus stated that the Planning
Commission is charged with determining the reasonableness of the 4 issues
being appealed. Mr. Mangus stated that Mr. Kimble’s comments probably were
when he learned the traffic flow was not on Mr. Presta’s leased property.
The Commission agreed that
there is a need for a map with accurate boundaries. Lynn Heath asked if the
Commission could address items 1 and 2 and address the others later. Les
Mangus stated that it is the Commission’s to address the reasonableness of
all 4. Mr. Presta stated he would prefer to address all 4 issues at once.
The Commission asked that Jeff Bridges ask the City attorney an opinion on
the impact of private lease in regards to public land use.
Mr. Presta stated that the
land has been used as a drive for 10 years. Les Mangus stated that when the
property was modified it changed the traffic pattern to make it more inviting
for them to use than the other entrances.
Chairman McEachern asked that
we get the opinion of the City attorney regarding if a lease can override
zoning regulations and if the City can block off a driveway. He also asked
for an accurate survey of the property in question. He also asked for Mr.
Bridges, Mr. Mangus, Mr. Presta and Mr. King to have a meeting to talk the
issues of this meeting over and see what the options are to resolve these
issues.
DECISION:
Having discussed and reached
conclusions on our findings of fact, I now call for a motion:
Having considered the
evidence at the hearing and the findings of fact, I Lynne Heath move that
Case No. BZA-A-2000-01 be continued until the next meeting of the Board of
Zoning Appeals on Tuesday, October 17, 2000 at the Andover Civic
Center, in this same meeting room. He stated he would like the following
items addressed prior to the next meeting:
1. The
opinions of the City of Andover City Attorney regarding if a lease can
override zoning regulations and whether the City can block off a driveway or
not.
2. An
accurate survey of the property in question.
3. A
meeting between Mr. Bridges, Mr. Mangus, Mr. Presta and Mr. King to talk over
the issues of this meeting and see what the options are to resolve these
issues.
Ron Roberts seconded the
motion. Motion carried 7-0.
CLOSING REMARKS:
Chairman McEachern thanked the
participants.
Motion was made by Ron
Roberts to adjourn the Board of Zoning Appeals and reconvene the Planning
Commission. Joe Robertson seconded the motion. Motion Carried 7-0.
The Planning Commission reconvened at 11:17 p.m.
Chairman McEachern stated that the zoning checklist was not gone over in case
Z-2000-06, the Decker/Kiser Preliminary General Planned Unit Development.
The Chairman asked that the Commission go over the checklist.
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