On behalf of the owner, Lynette Woods seeks to rezone this property on S. Scott Avenue from R-12 to R-18/PUD in order to retain a third dwelling unit in the building. This property has been zoned R-12 and contained a two family dwelling for several decades. The structure had a 1917 and 1919 S. Scott Avenue address for many years. However, according to utility billing records, in 2017 the previous owner somehow established a 1917-B S. Scott address and set up a utility account. In 2017, an electrical permit was issued to upgrade the electric service at 1917 and 1919 S. Scott. However, according to building permit records going back over 20 years, no permits were applied for or issued to change the existing duplex into a triplex. A few months ago, staff became aware of the upstairs dwelling unit and advised the applicant that this unit could not be occupied as it was not legally established. The Multiple Listing Service for this property identifies it not only as a triplex but also states that additional income opportunity exists by renting the detached 3 car garage on the property.
The duplex is a red and white wood frame structure with matching halves of the building. In addition to the main building, the site also contains a free-standing garage for two vehicles in the rear yard, along with a small shed. On the north side of the property is single-wide driveway that extends nearly the depth of the property, about 120 feet, and can parking for at least five cars, over the minimum required by Code.
A preliminary development plan is required in conjunction with this type of rezoning application. In this case, as the building and site improvements are existing, and no changes are planned, the aerial photograph of the property along with a photograph of the building will serve as the plan. As changes to the site or building may require a revised site plan.
Current/Proposed Zoning: The current R-12 zoning permits one and two family dwellings along with churches, schools and a few other related uses. R-18/PUD allows for duplexes, apartments, multi-unit houses, churches and schools also, and an assortment of group living situations with a Special Use Permit.
Comprehensive Plan: The City’s new Imagine Independence 2040 Comprehensive Plan envisions ‘Residential Neighborhood’ for the vicinity. One of the guiding principles of the Comprehensive Plan is to preserve the integrity of existing neighborhoods. Changing the zoning to allow a higher density would start changing the character of the neighborhood.
Adjacent Land Use and Zoning: The site is surrounded by R-12 zoning on all sides, with all the properties containing mostly single family residence with the exception of 4-plexes at the southwest corner of Linden and Norton.
Public Utilities: As the site contains an occupied structure, all public utilities are available on the site.
Historic and Archeological Sites: There are no apparent historic issues with this property.
Review Criteria: Recommendations and decisions on rezoning applications must be based on consideration of all of the following criteria:
1. Conformance of the requested zoning with the Comprehensive Plan – The Comprehensive Plan envisions Residential Neighborhood uses for this area. A guiding principle of Imagine Independence 2040 is to preserve the integrity of existing neighborhoods. This rezoning would begin to change the character of the neighborhood.
2. Conformance of the requested zoning with any adopted neighborhood or sub-area plans in which the property is located or abuts – There are not any sub-area plans for this site.
3. The compatibility of the proposed zoning with the zoning and use of nearby property, including any overlay zoning –– The proposed zoning classification and use of the site, as proposed by the applicant, is not consistent with nearby properties. The area is mostly single family residences, many of which are owner-occupied. The R-18/PUD zoning would allow other uses that would not be compatible with single family residential.
4. The compatibility of the proposed zoning and allowed uses with the character of the neighborhood – This multi-family residential zoning is not compatible with the neighborhood. This rezoning would begin to change the character of the neighborhood by allowing additional density (with the potential to increase even more by converting the detached 3 car garage).
5. The suitability of the subject property for the uses to which it has been restricted under the existing zoning regulations – Until recently, the site contained a two family dwelling, which was consistent with the property’s R-12 (Two Family Dwelling) zoning classification. The current property owner would be allowed to continue this use.
6. The length of time the subject property has remained vacant as zoned – For the most part, the two main units in the building have been continuously occupied. It was recently converted into a triplex without obtaining the necessary building permits.
7. The extent to which approving the rezoning will detrimentally affect nearby properties – The rezoning would increase density in an otherwise single family neighborhood, but also introduce other uses that would not be compatible with single family residences.
8. The gain, if any, to the public health, safety and welfare due to denial of the application, as compared to the hardship imposed upon the landowner, if any, as a result of denial of the application – If denied, the structure could still be utilized as a duplex as it had for many years and would not begin to change the character of the neighborhood. The previous owner converted the structure into a triplex without obtaining the necessary permits.
Planning Commission Action: At its February 12, 2019 Planning Commission meeting, the motion for approval passed 4-2, after consideration of the following facts:
1. That, the rezoning is consistent with the review criteria listed in Section 14-902-01 of the City Code.
- That, a public hearing was held pursuant to a notice duly published according to law, at which time all interested parties were given the full opportunity to be heard.
- That, the R-12 zoning classification allows for single- and two-family dwellings and various other uses (cemeteries, schools, government facilities and some agricultural activities).
- That, the proposed R-18/PUD zoning permits two-family, multi-family dwellings and other civic and governmental uses.
- That, at the Planning Commission hearing, no one spoke in opposition to the rezoning application.
- That, at the hearing, no protest petition was submitted in opposition to the application.
Draft Planning Commission minutes:
1. Case 19-100-03 – Rezoning – 1917 and 1919 S. Scott Avenue.
Stuart Borders presented the case. Mr. Borders presented the Commission with a vicinity map, noting the surrounding area and surrounding zoning. Mr. Borders presented the Commission with an aerial map showing the area and explaining the surrounding uses.
Chairman Ashbaugh asked how the City found there was an illegal unit at the residence. Mr. Borders stated the City wasn’t aware a unit was created upstairs until the owner requested separate power service. Mr. Borders stated there are occasions when an extra meter is provided, but not for additional units.
Commissioner Preston stated he feared this rezoning would change the character of the neighborhood. He asked if the Planning Commission could issue a Special Use Permit instead of rezoning the property. Mr. Borders stated the Special Use Permit could not be used for this case.
Lynette Woods, 8309 E. 104th Street, Kansas City, MO, stated she is a real estate broker. She stated the property was advertised as a tri-plex and there was a tenant in the upstairs apartment when she looked at the house. Ms. Woods stated while the sale was taking place, there was no tenant. When they attempted to get power to the upstairs apartment, they were notified that they needed an Energizer Permit. Ms. Woods stated she was then told by the City that the unit was illegal. Ms. Woods stated the City issued a permit to rent the upstairs unit through the Rental Ready program and asked why that would have been approved if it was an illegal unit. She stated she now knows to check the zoning when purchasing properties and asked how the City can prevent this from happening in the future.
No public comments.
Chairman Ashbaugh asked if the owner can use the property with three units. Mr. Borders stated he doesn’t know how long the unit has been there, but he went back through the mid 1990’s, and the only permit he found was a roof permit. Mr. Borders stated the City gets calls weekly from appraisers asking if units are legal during real estate sales. There are times that homeowners extend electrical service, but it is done illegally. Mr. Borders stated the inspection Ms. Woods mentioned was done through the City’s new Rental Ready program.
Commissioner Preston asked how this investor would have known this was an illegal unit. Mr. Borders stated appraisers and real estate agents commonly call and ask questions.
Commissioner McClain stated it sounds like this property was not disclosed properly.
Chairman Ashbaugh asked what makes this illegal. Mr. Borders stated this property is zoned R-12 and has been for a very long time. This zoning only allows two units.
Ms. Woods stated there were two appraisals done and no issues were brought to her attention.
Commissioner Preston asked Ms. Woods if she checked the zoning of the property. Ms. Woods stated she did not check the zoning and thought the MLS system was correct when it was advertised as a tri-plex.
Commissioner McClain stated she hopes the Rental Ready program will start catching these illegal units.
Commissioner Preston asked how the Energizer Permit caught this problem. Mr. Borders stated the Energizer Permit and Rental Ready are both new. He stated the Energizer Permit is required when a unit is unoccupied for more than 90 days.
Commissioner Preston stated the Planning Commission and City Council are being asked to rectify a fraudulent or misrepresented sale.
Commissioner McClain stated she is not in favor of this case because it will change the neighborhood.
Commissioner Preston stated he is usually in favor of what applicants want and need; however, he is torn on this case. He stated no one from the neighborhood has come forward as being in opposition.
Chairman Ashbaugh stated he is sympathetic to the situation; however, spot zoning is not preferred and can change the character of the neighborhood.
Commissioner Preston stated out of 21 neighbors notified, no one came forward in opposition.
Ms. Woods asked what is being done about illegal units. Chairman Ashbaugh asked Mr. Borders if the City is doing anything about illegal units. Mr. Borders stated the City doesn’t have a list of non-conforming units. He noted the Rental Ready program will help find these units. Mr. Borders stated he commonly get calls from appraisers asking if units are legal.
Commissioner Preston made a motion to approve Case 19-100-03 – Rezoning – 1917 and 1919 S. Scott Avenue, with the conditions provided by staff. Commissioner Ferguson seconded the motion. The motion passed with four affirmative votes.