Haase's Appeal

Former Planning Commissioner, John Haase, filed an appeal to the Board of Zoning Appeals (BZA) on March 03, 2024 regarding the administrative interpretation of Lawrence's floodplain regulations.  Haase helped craft the floodplain regulations during his time on the Planning Commission. His appeal is based on how the H&H study was carried out by the New Boston Crossing (NBCO) developer and the City's acceptance of the non-compliant study which results in the City breaking its own floodplain regulation code.  

The specific concern is about the interpretation of the floodplain regulations for the City of Lawrence, specifically code 20-9A04 (c)(1)(v) which states: "The study shall assume full development of the watershed based on the current comprehensive land use plan or other reasonable assumptions of impervious cover. "Full development of the watershed shall be assumed in all calculations, for either existing conditions or proposed modifications." The H&H study only included approximately 2300 feet upstream of the US-59 Highway and 2500 feet downstream of the development. E-mails between Haase and Kyle Gonterwitz found here show that Gonterwitz found the interpretation of the whole watershed under full development to be irrelevant since "the majority of the watershed is outside the area designated in the City of Lawrence's comprehensive land plans or urban growth tiers." This is false. The Wakarusa watershed, for the purposes of the City of Lawrence in context to their 2040 plan, extends approximately from West 6th street, cuts South along Wakarusa Dr, keeps North approximately of 31st until O'Connell Rd, and encompasses 23rd Street/K-10 past 1700 Road. This includes a massive amount of Tier 1 and 2 land that the City is considering for full development under our current Comprehensive Land Plan 2040. Additionally, Haase countered that the H&H study incorporated a tract of land that was not within the City's comprehensive land plans or urban growth tiers, so this reasoning by Gonterwitz is defective. 

Another argument that needs serious consideration, is the fact that Clinton Dam could encounter a breech which would qualify as one of the "other factors" referenced in 20-9A04(c)(1)(vi). Clinton Dam is considered a high-risk hazard dam, a dam that, if it were to fail, would cause significant property damage and extensive loss of life.  A 2009 Kansas Biological Survey found that the Clinton Reservoir is silting 70% faster than projected in 1977 when the dam was established, and the dam itself is approaching 50 years old, increasing its potential for failure. While currently there are no indications of dam failure, excessive rain forces the USACE to flood the Lower Wakarusa watershed to alleviate water levels in the reservoir causing flooding complications downstream of Clinton. This happened in 2019 when USACE did not shut off the spillway from Clinton Reservoir until 8 am on August 1st, 2019 despite torrential rain starting during the night. USACE says that they would not be able to get permission for overnight staff, so there is a real possibility this could happen again in the near future. 

By approving the Conditional Floodplain permit FP-23-00358 on February 16, 2024 Haase argued that the City violated it own floodplain regulations for the reasons stated above. The hearing for the BZA was scheduled for May 2nd, 2024, however, on April 24th the hearing was cancelled.  The NBC developer had an attorney tell the Lawrence Planning Department that Haase did not have standing and to pull his appeal. City Planning followed the attorney's directive.  John Haase was not given the proper due process by the City of Lawrence and the City effectively shut down 2 instances of public input and public comment. 

When Haase filed the appeal for BZA, the BZA accepted the appeal and planned a date for the appeal, May 02, 2024. However, according to the City Attorney the city staffers pulled the BZA appeal agenda after being persuaded by the developer's attorney that Haase did not have standing, therefore the BZA did not have jurisdiction over the appeal to begin with. However, Katherine Weik's email dated April 22, 2024, admits that the "The Planning Director has also consulted with City legal staff for analysis of the claim and determined that the “aggrieved” status required under the parties eligible to appeal the referenced floodplain development permit has not been met"  However, nowhere in the Land Development Code does it authorize the Planning Director or the City Staff to determine whether an applicant has standing. If the Planning Director or the city staff were allowed to determine who has standing to file an appeal to a quasi-judicial board this would be a situation ripe for abuse and corruption. This is consistent with the powers of the BZA outlined in the Land Development Code 20-1402(f) which states "the Board of Zoning Appeals shall administer the details of appeals..." which means the BZA itself can determine if the appellant has standing. Additionally, the city staff indefinitely deferred the appeal on their own misinformed authority, they removed the appellant's ability to file an appeal to the District Court within 30 days, as outlined in City Code 20-1311(j). Whether or not Haase has standing is an issue that must be determined by the BZA, NOT the City staff or the Planning Director. If the City of Lawrence is committed to transparency, they would not allow such activities behind administrative decisions without public oversight. The public, justifiably, might interpret this as corruption. Unfortunately the BZA refused to take this matter up and John Haase has passed, leaving the appeal in a forever limbo

What's interesting to note is that the developer had their own BZA appeal filed on December 4, 2023. This appeal was on the docket for a BZA meeting on February 1st, 2024 but was subsequently pulled by the developer, resulting in no BZA meeting. The basis was about the administrative determination by the Planning & Development Services Director, Jeff Crick. This is the same Planning Director who determined that John Haase had no legal standing for a BZA appeal concerning the H&H permit as persuaded by the developer's legal team.

• B-23-00432: Consider an appeal filed by Watkins Law Office, representing 3500 Iowa Holdings, LLC, property owner of record of the real property at 3500 Iowa Street. The appeal challenges an administrative determination dated November 16, 2023, by the Planning & Development Services Director. The appeal challenges the Planning Director’s interpretation of the no-rise standard as expressed by Section 20-1204(a)(1) of the Land Development Code. The appeal was filed under the guidelines of Section 20-1311 in the Land Development Code of the City of Lawrence, Kansas, 2018 edition.  Reasons for filing this appeal are cited by the appellant in their appeal packet dated December 4, 2023, and received in the Planning Office on December 4, 2023.