Monday, October 13, 2014

Shawnee County Annex

6:00 PM


Roll Call and Announcement of Hearing Procedure:  Mr. Jacques, Chairman, called the meeting to order and announced the Board of Zoning Appeals would convene first and after conclusion of business, would adjourn and reconvene as the Planning Commission.  Mr. Jacques asked for roll call to be taken.


Members Present:  Brian Jacques, Lynn Marolf, Nancy Johnson, Matt Appelhanz, Dave Macfee and Patrick Tryon.  With six members present a quorum was established and the meeting was called to order.  Christi McKenzie arrived after roll call was taken.


Members Absent:  None.


Staff Present:  Barry T. Beagle, Planning Director; Anna Ortega, Zoning and Floodplain Administrator and Joelee Charles, Administrative Assistant.


Communications:  There were no communications from staff.


Ex Parte Communication by Members of the Commission:  There were no Ex Parte communications expressed by members of the Commission.


Declaration of Conflict of Interest by Members of the Commission or Staff:  Mr. Tryon stated he lived in the subdivision on the subject property but didn’t consider his participation a conflict of interest.


Public Hearing:


1.    VR14/01 by Mike & Vickie Manns requesting a variance to decrease a side yard setback from 7-feet to 3.7-feet on property located at 4600 SW Shenandoah Road in Mission Township.


Mr. Beagle stated the applicant (landowner) owned a 1.46 acre parcel platted as Lot 4, Block B in Woodland Heights Subdivision #2.  The lot was subject to a 50 foot building setback along both 46th Street and Shenandoah Drive as well as a 6 foot utility easement on the south property line.  In 2013/2014, the applicant constructed a home addition that encroached into the required 7 foot side yard setback by 3.3 foot and did not obtain the required building permit.  The applicant was now requesting to reduce the side yard setback from 7 foot to 3.7 foot.


Mr. Beagle reviewed the functions/criteria they would consider for the variance request.  He said state law stipulated any county who adopted zoning regulations must also establish a Board of Zoning Appeals.  Their job was to review the situations where there was a demonstrated hardship associated with a property.  He said the zoning regulations established rules governing the use and development of land which were to be applied uniformly.  At times, the strict application of the regulations may cause an unnecessary hardship due to some unique physical condition of the property.  The applicant would then need to demonstrate what the unique condition was in order for a variance to be granted.


Mr. Beagle said the criteria were rigid for approving a variance because all the same zoning standards had to be met.  The standards should not be relaxed as a matter of convenience or financial gain but as a result of a unique condition that prevented all beneficial use of a property.


Mr. Beagle said there were five tests set forth in the state statute that would need to be met in order for the Board to grant a variance such as:

  1. There was a condition unique and not ordinarily found in the same zoning classification and created by the zoning regulations and not by the property owner or applicant’s actions.
  2. It would not adversely affect the rights of the adjacent property owners or residents.
  3. Strict application of the provisions of the regulations would constitute an unnecessary hardship upon the property owner or applicant.
  4. It would not adversely affect the public’s health, safety, morals, order, convenience, prosperity or general welfare.
  5. It would not be opposed to the general spirit of the zoning regulations.


Mr. Beagle made the following points:

It was the builder’s responsibility to take the appropriate measurements to confirm compliance with the dimensional requirements.


Mr. Beagle provided his comments regarding the five tests as follows:


In summary, Mr. Beagle said it was important to realize the encroachment into the required side yard was, in Staff’s opinion, entirely avoidable.  The hardship was entirely self imposed and not as a result of a physical condition unique to the property.  There was nothing associated with the property that would have prevented compliance with the side yard requirement and platted utility easement at the time of construction.  Not having secured the necessary permit prior to construction, the applicant did not have the best interest in the addition as constructed.  After conferring with the County Counselor’s office, the County may pursue legal action to remove the offending portion of the addition from the easement and required setback should the request be denied.


Mr. Jacques asked Mr. Beagle if the builder and the applicant were related.  Mr. Beagle said they were not.  The applicant/owner was the Manns and the builder was Mr. Fruits.  Mr. Jacques asked if the appeal from the Zoning Board would go to the District Court and bypass the County Commission.  Mr. Beagle agreed.  Mr. Macfee asked for clarification.  Mr. Jacques said the Board of Zoning Appeals decision would be final and any further review would be handled by the District Court.


Mr. Jacques asked if the applicant was present.  The applicant was not present.  Mr. Beagle said the applicant was sent the staff report along with the notification of the hearing.


Ms. Johnson asked Mr. Beagle if the addition was completely finished.  Mr. Beagle said it was.


Mr. Jacques said there was a similar issue before the Planning Commission that was continued for one month to allow the applicant to be present.  Mr. Jacques said he would like to give the applicant the opportunity to be heard since it would be a final decision.  He asked if the applicant could be contacted to inform them that it was continued.  Mr. Beagle said the applicant would be contacted if that was the action of the Board of Zoning Appeals.


Mr. Macfee asked if the notification sent to the applicant was certified.  Mr. Beagle said it was sent out by regular mail.  He said the applicant was aware as they had talked about getting a variance.  They were informed of the schedule and the necessity to attend the meeting.


Mr. Jacques commented on the lack of information that was completed on the application and had indicated there was no unique condition.  Ms. Johnson asked if the applicant completed the form.  Mr. Beagle said the applicant had completed it.


Mr. Jacques said if they were going to continue the item, he would continue it before comments were made.  If they were going to hear it and make a decision, they would proceed.  He asked if someone wanted to make a motion.


Mr. Marolf said he felt there were people who came to the meeting to speak to the issue and asked if they could proceed and hear their comments and then decide whether to table it or not.


Mr. Jacques asked if there was a motion.  If not, then they would proceed to public comments.  There was no motion.


Mr. Jacques opened the public hearing and called for comments in regard to the proposed variance.


Mr. Don Long, 930 NE 43rd Street, Topeka, KS  66617.

·         Owns the property at 4612 SW Shenandoah Road, next door to the applicant.

·         Talked to someone who indicated the Manns were in the process of buying their property.

·         Said the Manns indicated an interest but had not received an offer.

·         Said they would entertain an offer if they wanted to buy it.

·         Said it was 3 ½ feet of an easement which was not part of their property.

·         Has owned rental property in Illinois and Kansas.

·         Never occurred to them to just go ahead and do something without getting permits.

·         Assumed they had the permits.

·         Didn’t know if he was strongly opposed to it.

·         More interested in how it affects them.


Mr. Jacques said he wasn’t sure if it would be negative.  It wouldn’t change the Long’s property.  He asked if any other members had any questions for Mr. Long.


Mr. Beagle said Ms. Ortega had received a letter from the builder on May 29.  Ms. Ortega read the letter which stated the builder was trying to buy the property at 4612 SW Shenandoah Road to move the property line three foot; the property was vacant; the builder was negotiating with Ms. Peggy Long; and a contract for purchase was sent to Ms. Long but did not have a signed deal when the letter was sent.  Mr. Beagle asked the Longs if they received the letter.  They indicated they had not.


Ms. Peggy Long, 930 NE 43rd Street, Topeka, KS  66617.

·         Talked to two men, one was Mr. Tom Bailey and someone else who said he would do the work.

·         Didn’t know who the other guy was and didn’t get a name.

·         Met with them and showed them the property.

·         He called her once and gave her a range of what he thought he might want to do as far as price.

·         Mr. Bailey called again a few weeks ago and she requested they put something in writing.

·         She hadn’t received an offer in writing to date.


Ms. Susan Long, 930 NE 43rd Street, Topeka, KS  66617.

·         Said she was the daughter and said she had lived at 4612 SW Shenandoah Road with her brother.

·         Said they had taken liberties with their yard by driving trucks in and out over their grass.


Mr. Beagle asked if they had ever received any contract.  The Longs indicated they had not.


Mr. Jacques asked if there were any other comments.  With no further comments, Mr. Jacques closed the public comments.


Mr. Jacques then called for comments from commission members.  There was no discussion on the motion.


Ms. Johnson asked Mr. Beagle if they needed to indicate a reason.  Mr. Beagle said it could be something as simple as that they find in concurrence with Staff’s comments and it did not conform to the state statutes.


Mr. Macfee asked Mr. Jacques if a yes vote was to disapprove.  Mr. Jacques said it was.


Ms. Johnson moved for disapproval of the variance, seconded by Mr. Marolf and with a vote of 7-0-0, the variance was Denied.


There was no public comment on non‑agenda items and no discussion of planning items.




Mr. Jacques moved to adjourn the Board of Zoning Appeals hearing, seconded by Ms. McKenzie and with a unanimous voice vote the meeting was adjourned at 6:30 p.m.