October 4, 2004
Item 1 on the Agenda: Meeting called to order – Roll Call.
Present: Council & Staff Present:
Ms. Abbott Scott Wingerson, Assist. City Manager
Mr. Davis Mayor Wayne Beer
Absent: Ms. Lowe
Item 2 on the Agenda: Pledge of Allegiance.
Chairman Hill led the group in reciting the Pledge of Allegiance.
Item 3 on the Agenda: Approval of September 7, 2004 Minutes.
Motion by Ms. Newsom, second by Mr. Revenaugh to approve the September 7, 2004 minutes as submitted. The minutes were approved as submitted.
Item 4 on the Agenda: Communications from the Audience.
Item 5 on the Agenda: PUBLIC HEARING: Consideration of a Special Use Permit at 2201 NE 56th Terrace. Applicant: Joyce Vogt. (#1236)
Chairman Hill asked for the staff report.
Mr. Wingerson reported that this is a renewal for a special use permit that was approved in 2003 for a period of one year to allow operation of a nail salon from the home. He drew their attention to a letter placed at their seats tonight from the applicant which explains her business. The key point in that letter is that her neighbors are asking when she is going to start the business. There was one call of concern; the resident didn’t really have any reasons for the concern and was invited to attend the public hearing tonight. He is not sure she is present. Staff recommends approval of the request for a term of five years.
Chairman Hill asked the applicant to step forward.
Joyce Vogt, 2201 NE 56th Terrace addressed the Commission. Ms. Vogt stated that she was not aware that someone called in opposition because as far as she knew all her neighbors are fine with it. Most of them do not even have a clue that she works there. She stated that she is seeing one client at a time; her parking is pretty much hidden from everyone and she stays within the hours. Business is really bad so she is working a lot less hours. Ms. Vogt added that she has done a lot of work to the house and it looks much better than it did before, therefore she thinks she is an asset to the neighborhood. She would like to have a term of at least five years before the next renewal.
Ms. Newsom asked the applicant if there are any other proposed changes to the conditions other than in the staff report.
Ms. Vogt said she hasn’t seen the report, but there are no changes.
Mr. Wingerson replied that the conditions are the same as last year.
Ms. McGuire said that she knows Ms. Vogt personally and has been friends with her for many years. She watched her through the process; she sold her the house. She has done a fine job and she has done what she said she would do. She has painted the house, worked on her deck, cuts the yard and takes care of it and the neighbors seem happy.
Mr. Revenaugh announced that he knows the applicant and therefore will be recusing himself from the vote.
Ms. McGuire said that it is her understanding that because she a friend to the applicant and not related to her she doesn’t need to recuse herself from the vote. She asked if that was true. She remembers going over that in one of her training classes.
Mr. Wingerson said that although Counselor Ramsay is not present he believes that if there is any perception of personal gain or benefit on behalf of the Commissioner or the applicant then the Commissioner should recuse themselves. That is not necessarily the legal opinion, although in this case he would recommend that both Commissioners recuse themselves and Counselor Ramsay can clarify that at a future time.
Chairman Hill asked for anyone in favor of the application to step forward. Seeing no response he asked for those in opposition to come forward. There was no response. He then asked if there was any further discussion from the Planning Commission. The public hearing was closed.
Ms. Newsom said that seeing that things have gone well this last year, there have not been any complaints from neighbors and conditions remain the same she would make a motion.
MOTION: By Ms. Newsom, second by Ms. Abbott to approve the Special Use Permit at 2201 NE 56th Terrace with the recommended conditions stated in the draft ordinance for a period of five (5) years.
Chairman Hill stated that it appears we have an in-house use here that has not negatively impacted on the neighborhood therefore, he will voting in favor of it.
VOTE: Ms. Abbott Yes
Mr. Davis Yes
Mr. Dillingham Yes
Chairman Hill Yes
Mr. Kiser Yes
Ms. McGuire Abstain
Mr. Revenaugh Abstain
Mr. Steffens Yes
Mr. Whitton Yes
8- Yes, 2- Abstain
Chairman Hill announced that this application would move forward to the City Council on October 11, 2004 with a positive recommendation.
Item 6 on the Agenda: Other Business (The posted agenda was changed shortly before the meeting began making item 6A: Creative Arts Academy.)
6A. Creative Arts Academy
Mr. Wingerson said he would go ahead and start with an update so that everyone is starting at the same place. There are three issues at Creative Arts Academy that currently exist. One is the banners that are located on a privacy fence that was constructed on the north property line. Mr. Wingerson said that the banners will be removed at some point in the future. He would caution the Planning Commission, City Council and residents since the actual use of banners is allowed under the City’s current sign ordinance, however, Ms. Raisher has agreed to remove those. The second item is the recycling dumpsters located in the parking lot. Those actually belong to the Church and have been used as a fundraiser for youth activities. The Church has agreed to work with Ms. Raisher to find another location that is better screened from public view.
Mr. Wingerson continued by saying that the third issue, the gate, is a lot more complicated that it appears. The gate would go through the privacy fence from Creative Arts Academy to some residences to the north for access to their rear yards. He has met with Ms. Raisher probably four times and spoke with her on the phone an additional four times and she is willing to seek to solve this issue, however right now she is not able to obtain property insurance that would allow that free passage between the properties. Mr. Wingerson said that he knows like that doesn’t sound difficult, but in her business, gymnastics training, there are only two companies in the country that will insure that type of business. There are serious and even deaths associated with her business, so it’s not something that most insurance companies will even consider. Ms. Raisher is not opposed to the money of a gate or even the access of the neighborhood; it’s an insurance issue.
Mr. Davis said that the motion that the Planning Commission approved in April required a significant buffer and there was a lot of discussion on what a significant buffer was. The minutes mention the fact that they talked about a buffer wide enough so that the parking could be a good distance away from the rear yards of the residents. They also talked about the possibility of trees and shrubbery and other things in that buffer. Instead of those things, there is a fence that is on her property line roughly the length of a lawn mower away from the lots that adjoin it. You can run a lawnmower most of the distance, but not the entire distance, behind it, but you can’t turn it around. It’s clear that the fence violates the intent of their discussion regarding a significant buffer. He has had a chance to discuss this at length with the adjoining property owners and they have told him that in their opinion the major issue is the gate. Their concern is that in discussions before this and when Ms. Raisher discussed the special use permit the neighbors agreed not to oppose it, in fact one of them even supported it, because they were assured that there would be gate provided that would be wide enough for a truck to go through it. When she made that commitment to the neighbors she did not say “If I can obtain insurance...” She just said that she would do it. Mr. Davis said the second thing is the issue of the buffer which is obviously inadequate and does not comply with what they approved. He’s not concerned about the other two issues because Mr. Wingerson assures him that the signage will be corrected and the recycling will be corrected. He hopes that we can resolve this to the satisfaction of the neighbors which means that he would recommend to his fellow Commission members that if Ms. Raisher would agree to provide the access that she promised maybe they can be satisfied with a buffer that obviously meeting their conditions. There are only two issues here: Who protects the neighbors when an applicant makes a commitment to the Planning Commission and it becomes a part of the motion? When an applicant makes a commitment to adjoining property owners, who protects the adjoining property owners? Ms. Raisher is out of compliance with what she promised to do. Mr. Davis believes we have reached the point where somebody needs to look at this proposal and realize that we approved this six months ago, it’s obviously not in compliance and it’s time to withdrawal the special use permit.
MOTION: By Mr. Davis, second by Mr. Kiser to initiate the action needed to withdraw the special use permit.
Mr. Kiser stated that he seconds this motion because both himself and Mr. Davis were at quite length involved with the discussion that took place with the neighbors and he agrees that he left that evening with the understanding that the desire of the neighbors would be satisfied.
Ms. McGuire asked if a gate causes that much trouble for insurance, her concern is that if a gate is put in…we all think we live in a nice neighborhood…but couldn’t someone hide behind that and be able to get access to the parking lot fairly easily? She’s seen the fence and you can’t see through it. She asked if it might be better just to move that fence to the south to allow enough space that a guy could travel carrying some logs or lumber or whatever you have to do for firewood…or mow it.
Mr. Davis said that the concern was getting a truck in there, so a gate allowed that. If Ms. Raisher could move the fence 10’ so that you could get a truck in there that would be fine, but he doesn’t think she wants to move the fence.
Chairman Hill said that there was a neighbor in the audience that would like to speak.
Christine Selig, 1807 NE 57th Street addressed the Commission. Ms. Selig said that she is directly behind the Church. She stated that she has never been opposed to Ms. Raisher’s being there. Ms. Raisher has always been very nice, but the first night they met she told her that she didn’t have a problem with a fence and a gate and that would in fact be better for her so her people don’t bother them. Ms. Selig said that she feels like they’ve been lied to by Ms. Raisher. They feel as though she got the neighbors to agree to it and now she’s just doing this…and she has the fence there…she got what she wanted but she doesn’t feel like the neighbor’s needs have been met. Her next door neighbor, Nancy, has firewood that is delivered. They have to either throw it over the gate or they have to carry it all the way from the front to the back and that costs a lot more money when you hire somebody to do that. Ms. Selig said that when she borrows her father-in-law’s mower they can’t get it in the backyard because they always came through the back gate since their side gate isn’t wide enough. It’s just kind of a hassle. If you walk down that, there is any alley-way that goes all the way down, but there’s not enough room to get anything in and out. They are very disappointed and feel that they have been neglected. They are willing to work with anything, but they feel like their needs need to be met also.
Chairman Hill thanked Ms. Selig for her comments. Without legal counsel here tonight, Chairman Hill said that he is at a little bit of a loss. He does not think that they are in a position to make any motions or take any motions because there has not been appropriate notice given to the holder of the special use permit. He suggested deferring this and letting City legal counsel provide the Commission with advice. His own thoughts are that his understanding of the transaction is that Creative Arts Academy bought a portion of the premises. The fence is not located on the premises that they own.
Mr. Wingerson stated that it is.
Chairman Hill asked if Ms. Raisher bough the parking lot.
Mr. Wingerson said they did.
Chairman Hill and other Commissioners said that they thought they were going to have some kind of 50-year agreement with them.
Mr. Wingerson said that turned out to not be acceptable to either party and after the Planning Commission’s recommendation they negotiated a purchase and it was presented to the City Council as Ms. Raisher would own an “L-shaped” piece of property (about half of the north parking lot).
Ms. Newsom suggested that the discussion be terminated and at the next Planning Commission (or what’s legally appropriate) they be provided with the minutes from those meetings and public hearings being discussed. She feels about a bit blind-sighted by this. Ms. Newsom said that she did call in to City Hall about the banner on the fence, but she didn’t know any of the rest of this was coming up. She thinks that it is inappropriate for them, as a body, to move forward on something without the applicant present to provide her side of the story and get everyone up to speed on what exactly took place. Ms. Newsom said she voted against it because she thought it was a poor use of the property at that point and time, so she did not attend to some of the details like she would have if she would have voted yes.
Mr. Wingerson said that is absolutely what will be done. He was going to take Chairman Hill’s comments a step further and suggest that the Commission not take action on the motion made by Mr. Davis and Mr. Kiser because there is a 15-day notice period. The motion tonight would authorize a public hearing. It will be at least two Planning Commission meetings from now should they vote on that motion tonight. His suggestion would be for staff to provide the Commission with the information Ms. Newsom requested but for them not to take action on the motion, with permission of Mr. Davis and Mr. Kiser, and give staff two more weeks to update Ms. Raisher on the Planning Commission’s conversation tonight. At that point if the Commission would like to move forward with revoking the special use permit, they can make that motion in two weeks and staff will publish it for public hearing.
Mr. Davis said he is comfortable with that if Mr. Kiser is. Mr. Kiser agreed.
Chairman Hill said that he would also like to see the minutes from the City Council public hearing. He would also be interested in seeing the documents regarding the sale of the parking lot to Ms. Raisher, which opens up other issues like the recycling dumpster and the Church’s parking requirements. He also strongly cautioned all the Planning Commissioners that if the Commission is considering any type of an action affecting this special use permit there should be no contact with the applicant or the neighbors outside of public hearings. What is considered needs to only be done at meetings and the Commission should proceed very carefully and very formally in this matter. This makes all actions a part of public record.
Mr. Davis said that he was not aware of the purchase of the parking lot by Ms. Raisher. He also has great concern regarding the tax status of this. He wants to make sure the City is at least obtaining a property tax value from the Creative Arts Academy since it’s now apparently on private property. She was renting church property, which is tax exempt.
Chairman Hill asked Mr. Wingerson if staff could even give appropriate notice for the next meeting.
Mr. Wingerson said that would not be enough time for a public hearing notice. It would require 15 days notice. If the Commission would just like a report back in two weeks that would be fine, but the public hearing would have to take place in four weeks.
Chairman Hill agreed to have staff report back in two weeks and at that time the Commission can decide how they would like to proceed.
Mr. Wingerson said that if the Commission should choose to proceed to a public hearing at that point it would be four weeks from then (six weeks from tonight).
Mr. Davis said that he would like to make it perfectly clear that he is concerned with getting the problem resolved. He’s not concerned with penalizing this person. If Ms. Raisher finds a way to comply with what she committed to the property owners and to the Planning Commission then he’s satisfied and he would not make a motion to revoke the special use permit.
6B. Rules of Procedure
Mr. Wingerson said that he provided the Commission with an updated draft at the places this evening which Counselor Ramsay provided based on the comments at the last meeting. When the Commission is ready to discuss it further, staff is prepared to do that.
Chairman Hill asked if staff had copies of other cities rules of procedures that might be similar.
Mr. Wingerson answered that he believes the draft was modeled after Independence, but he would have to check with Counselor Ramsay. He did a lot of research on these types of things based on the City Council’s input as well as what other Planning Commissions are doing. There’s a limited number of Planning Commissions out there like Gladstone’s, so not all cities rules would apply.
Ms. Newsom said she would like to have some time to read it before she discusses it.
Item 7 on the Agenda: Communications from the City Council and the City Staff.
Mayor Beer said that he believes we had a pretty successful Gladfest although no official numbers have come in.
Mr. Wingerson drew the Commission’s attention to a memo placed at their seats tonight regarding a follow to items discussed at their last meeting. There are also some public hearings coming up as well. He thanked Chairman Hill and Ms. Newsom for taking leadership roles during Gladfest and also to others who volunteered over the weekend.
Ms. Newsom had a question for Mr. Wingerson. She quoted from the memo regarding Burnett’s Lighthouse “… appears that the area is well maintained and reasonably safe…” After dealing with the School District for all these years and having playground standards, impact areas, etc…
Mr. Wingerson said that because he is not the safety advisor it looked reasonable safe to him.
Ms. Newsom asked if their liability insurance covers the playground.
Mr. Wingerson said it does; he did ask.
Item 8 on the Agenda: Communications from the Planning Commission Members.
Ms. Abbott said that the Bell’s driveway is not fixed, the curbs aren’t in yet and the trees are still there from the tornado.
Mr. Davis said that he would like to apologize in advance, but he will not be able to attend the next meeting.
Chairman Hill asked what the deal was with the Hobby Lobby trailers parked out front.
Mr. Wingerson said that staff talked to them and they were supposed to be gone.
Chairman Hill said they are gone now. He also asked what the status of the construction trailer was in Prospect Plaza.
Mr. Wingerson said that is for Sheridan’s and it is gearing up to start again. The contractor just has the trailer there waiting.
Item 9 on the Agenda: Adjournment.
Chairman Hill adjourned the meeting at 8:10 P.M.
______________________________________ Approved as submitted _____
Becky Jarrett, Recording Secretary
______________________________________ Approved as corrected _____
Brian Hill, Chairman