August 4, 2004
The Board of Commissioners of the City of Lawrence met in regular session at 6:35 p.m. in the City Commission Chambers in City Hall with Mayor Rundle presiding and members Dunfield, Hack, Highberger, and Schauner present.
With Commission approval Mayor Rundle proclaimed the week of August 1 -7, 2004 as “Breastfeeding Awareness Week.”
CONSENT AGENDA
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to approve the City Commission meeting minutes of July 20, 2004. Motion carried unanimously.
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to approve the Sesquicentennial Commission meeting minutes of June 2, 2004 & June 23, 2004; the Parks & Recreation Advisory Board meeting minutes of June 8, 2004; the Board of Zoning Appeals meeting minutes of March 4, 2004; April 1, 2004, and June 3, 2004; the Sign Code Board of Appeals meeting minutes of March 4, 2004; April 1, 2004. and June 3, 2004; the Historic Resources Commission Action Summaries of March 18, 2004, April 15, 2004, and June 17, 2004; the Planning Commission meeting minutes of March 17, 2004; May 26, 2004, and June 23, 2004; the Board of Plumbers and Pipe Fitters meeting minutes of May 19, 2004 and June 16, 2004; the Grant Review Board meeting minutes of April 12, 2004; the Housing Trust Fund Board Meeting minutes of February 19, 2004; the Neighborhood Resources Advisory Board meeting minutes of June 17, 2004; the Practitioners Panel meeting minutes of January 15, 2004 and April 1, 2004; the Task Force on Homeless Services meeting minutes of April 20, 2004 and June 15, 2004; the Lawrence Memorial Hospital Board meeting minutes of June 16, 2004; the Recycling and Resources Conservation Advisory Board meeting minutes of June 9, 2004; and the Convention & Visitors Bureau Advisory Board meeting minutes of May 25, 2004. Motion carried unanimously.
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to approve claims to 644 vendors in the amount of $2,672,421.38 and payroll from July 11, 2004 to July 24 2004 in the amount of $1,391,838.34.
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to approve the Drinking Establishment Licenses for Plum Tree, 2620 Iowa; Molly McGees, 2412 Iowa; Stone Creek, 3801 West 6th; Tanner’s Bar & Grill, 1540 Wakarusa; and the Retail Liquor License for Myers Retail Liquor, 902 West 23rd. Motion carried unanimously.
The City Commission reviewed the bids for a Continuously Operating Reference Station for Information Systems. The bids were:
BIDDER BID AMOUNT
Seiler Instruments $18,090.00
A&D Technical Supply $21,269.60
Laser Specialists, Inc. $22,852.00
Geomatic Resources $25,000.00
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to award the bid to Seiler Instruments, in the amount of $18,090. Motion carried unanimously. (1)
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to authorize the City Manager to enter into a contract with ESS, Inc., for $98,900 (pending FAA grant approval) for Schedule I ($782,110.75), Schedule II ($83,085) and Schedule III ($116,705) for the reconstruction project of runway 1-19, If all three (3) schedules are approved by the FAA and subsequently funded, the City’s share of the construction costs would be $49,095. Motion carried unanimously. (2)
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to authorize the City Manager to execute the Engineering Services Agreement with BG Consultants in the amount of $56,731.40 for Project No. 28-CP8-604(BD) Lake Pointe Drive, Clinton Parkway to 22nd Terrace including the design of a roundabout at the intersection of Clinton Parkway and Lake Pointe Drive. Motion carried unanimously. (3)
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to place on first reading, Ordinance No. 7751, rezoning (Z-11-40-03) a tract of land approximately 41 acres from A (Agricultural District) to RS-1 (Single-Family Residential District). The property is generally described as being located east of George Williams Way at Harvard Road. Motion carried unanimously. (4)
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to place on first reading Ordinance No. 7802, amending Chapter 9, Articles 2, 4, and 6, of the Health and Sanitation Code. This ordinance reflects City Commission direction on the environmental code standard and furniture on porches. Motion carried unanimously. (5)
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to approve the site plan (SP-06-34-04) for 1416 Tennessee, a site plan for a change of use and remodel of an existing residence for a boarding house located at 1416 Tennessee, subject to the conditions of approval related to other public review actions (HRC and BZA) are in effect and are related conditions of approval. Motion carried unanimously. (6)
As part of the consent agenda, it was moved by Highberger, seconded by Schauner, to authorize the Mayor to sign a Release of Mortgage for Jeremy and Kelly Brakenhoff, 2704 Ann Court. Motion carried unanimously. (7)
CITY MANAGER’S REPORT
During the City Manager’s Report, Mike Wildgen reported that staff had drafted a memo on the various controversial items concerning the blasting issues in West Lawrence. The memo outlined staff’s recommendations on those blasting issues and those recommendations would be sent to the Fire Board Code of Appeals. He said a meeting would be set and the public would be invited to make additional comments.
REGULAR AGENDA
Consider approving, subject to conditions, SP-07-59-04, a site plan for Wisconsin Apartments located at 1710 West 7th Street.
Linda Finger said the staff report was unchanged since the last time this was submitted by the applicant. She said staff recommended approval of the site plan with the following conditions:
1. Execution of a site plan performance agreement per Section 20-1433;
2. Agreement not to protest the formation of benefit districts for Wisconsin or W. 7th Streets;
3. Correction of identified zoning district on the face of the site plan from C-4 (General Commercial) District to C-5 (Limited Commercial) District to the north of subject property.;
4. Applicant to provide calculations to support revised grades in the detention basin;
5. Applicant to submit drainage study revisions to support the current grading plan;
6. Applicant to provide handrails on all walls exceeding 30” in height. (UBC code requirement);
7. Applicant to label the storm sewer to be constructed on Wisconsin Street from the site to a point 280’ to the north;
8. Applicant to provide public improvement plans for the detention basin and downstream storm sewer work for review prior to release of the plan to the building inspector; and.
9. Applicant to obtain an approved SWP3 prior to release of the site plan to the building inspector.
Mayor Rundle called for public comment.
Price Banks, Attorney representing the applicant Harold Sheppard, said at the last meeting there was discussion about Horizon 2020 and discussion about the density, in particular, as set out in Horizon 2020. He said there was a request for the density to be lowered considerably. He said there were a number of other recommendations in Horizon 2020 including infill development. This project met all the requirements for site planning. Horizon 2020 was the City’s Comprehensive Plan and one of the implementation tools was the zoning ordinance. The zoning was in place and if the density was to change, he suggested that it would require a change in the zoning ordinance rather than just using Horizon 2020 requirements.
The zoning ordinance provided that the development in the RM-2 district have a minimum lot area of 2,000 square feet per dwelling unit. The site plan complied with that zoning ordinance. He said that was the formula used in designing that site. The requirement for a lower density on that site would fly in the face of the statute. He said K.S.A. 12-756 required that zoning regulations be uniform for each class, type of building, or land uses throughout each district. There were many examples in Lawrence nearby this site where property was developed to the maximum density permitted in the district. He said his client invested in the property in reliance of the ordinance’s provisions and those provisions should not be changed without a change in the zoning. The plan conformed to all applicable regulations and the requirement to lower density would impose a serious hardship on the property owner.
He said the architect had designed the project and changed the design from time to time to comply with staff requirements. The project now met those requirements and there were no objections to the conditions set forth in the staff report. He urged the City Commission to approve the site plan.
Harold Sheppard, Lawrence, said he had been trying to get a site plan approved that was friendly to all the neighbors in the area. He said Banks and the architect worked to make sure the project was in compliance with all ordinances and requirements.
He said this proposal would improve the area and he urged the Commission to approve the site plan.
Laura Berger, Pinckney Neighborhood resident, read a prepared statement on behalf of the Pinckney, Old West Lawrence, and Hillcrest Neighborhood Associations. She noted the three main concerns which were:
(1) The plan did not meet 2 of 7 conditions required for approval of a site plan;
(2) The plan contradicted the fundamental principles of H2020; and
(3) Approving the site plan would set dangerous precedent and would contradict the area plan.
She said those objections were intended to be positive and there were many constructive comments in the past. She said, as they pointed out before, Pinckney, Hillcrest, and Old West Lawrence Neighborhood Associations were not anti-development and they did not oppose multi-family housing. She said they would encourage the developer to come back with a plan that was more compatible with the neighborhood and positive for the City of Lawrence.
In conclusion, they hoped that the City Commission would stand by their position they had previously taken and decline to approve this site plan.
Vice Mayor Highberger said he had the same concerns as last time this site plan was before the Commission. He said he did not think the plan was compatible with the existing uses and the plan violated another code section which was Chapter 20-1428 which required the plan to promote safety and convenience to the public and preserve property values to surrounding properties. He opposed the plan.
Commissioner Hack said she appreciated the comments concerning infill development because that type of development was the most efficient type of development for managed growth as well as from an infrastructure standpoint, but that was the most difficult type of development. She said Horizon 2020 was a guide in which the City operated, but the portion of Horizon 2020 that rang true, dealt with transitions and clearly the issue of transitions was paramount. She said to go from a dense situation to single-family, with only 7th Street as the buffer, was not acceptable. She encouraged the applicant and the neighborhoods to work together to submit a proposal that satisfied the both of them.
Commissioner Dunfield said the word “transition” was a good word that expressed a lot of the difficulties concerning this issue. Compatibility was the basic word that came around as he looked through comments from neighbors and in looking at Horizon 2020. He asked what compatibility meant, how that word would be defined, and how was that expressed or not expressed in this particular site plan.
He said the code section that Vice Mayor Highberger referred to, Chapter 20-1428, stated, “Compatible arrangements of building off-street parking, lighting, landscaping and other issues.” He said he felt that this site plan was not compatible and for support for that belief, he thought there were numerous paragraphs, statements, policies, and goals in Horizon 2020 that could be cited.
Commissioner Schauner said the last time the City Commission addressed this issue the plan seemed to have met both minimum code and maximum density requirements which were incompatible with both the code section cited by Vice Mayor Highberger, but also incompatible with the driving document for all of the City’s zoning which was Horizon 2020. He said he did not think one could read one plan without reading the other plan.
He echoed Commissioner Hack’s comments about the developer and neighbors working together to come up with a proposal that would satisfy their infill needs and the developers needs to take advantage of his property purchase.
He said this particular development did not fit, was not compatible, and there was a lack of transition. The public welfare was not satisfied by this site plan and he did not support the site plan based on that rationale and the rationale of his fellow Commissioners.
Mayor Rundle said he was not in favor of this site plan for the same reasons that the Commission was prepared to vote the last time this issue was discussed.
Commissioner Dunfield asked staff about the Kansas statute on uniformity of application of zoning. He said clearly the intent was denial of the site plan and he also asked for guidance from staff about how that could be formulated.
Corliss said he would like to draft proposed findings of fact supporting a denial based on City Code requirements for the site plan and have that placed on another Commission agenda to confirm that was the Commission’s general findings pursuant to the Code and have that adopted as part of the letter of denial that the Commission was directing staff to proceed with.
He said there was a requirement in the State enabling statutes that within each zoning district that the requirements for a particular zone be uniform throughout the community. He said there was a requirement for this zone that the property had to be site planned. The site plan code requirements indicated that Planning Staff was to review the site plan for conformance with those regulations in Chapter 20 and Chapter 21 which were the implementing tools for the Comprehensive Plan in that they would prepare a report with recommendations to the City Commission. After receiving the site plan review from staff, the City Commission shall:
1. Approve the site plan with or without conditions;
2. Deny the site plan; or
3. Defer the site plan for further study.
He said it was his recommendation, if the City Commission was to deny the site plan that staff would point to code provisions where that site plan was not meeting those code requirements. He said a way to determine compatibility was in the zoning ordinance and what uses were allowed. He said the City Commission had determined compatibility with this property and it was zoned for that use.
He said there were other values of compatibility such as building height which the neighborhood indicated that it was not compatible to have a multi-story structure next to a neighborhood. He said there was some opportunity for the City Commission to breathe life into terms such as what was and was not compatible and he thought the City Commission could do that in denying the site plan. He said they would need to see the actual findings and whether those findings were genuine to the facts at that location.
He said if that was the City Commission’s direction, he would talk with other members of the City’s Legal Department, including the City Attorney, Jerry Cooley, to confirm that the City was comfortable in proceeding in that manner. He said he would also talk with the Planning Staff to make sure the City was on track for their understandings of how they defined those terms. He said one of the important legal requirements was that the Commission was consistent in interpreting the City Code. If the Commission said this site plan was incompatible, the Commission would need to look at other situations whether or not the Commission viewed that term in a similar situation. He said staff would look at that idea and come back to the City Commission with a report probably on August 24th.
He said the findings of fact would need to be provided to Shepard, Banks and the neighborhood representatives and staff would need to provide the best justification for denying the site plan pursuant to the law.
Commissioner Schauner added that Vice Mayor Highberger’s reference to 20-1428 was a significant ingredient of his own thinking with respect to that site plan. He said it was difficult, having viewed the property, having looked at the site plan, and having looked at the letters and correspondence from the Neighborhood Association and then try to read all those together with 20-1428. He believed that was not a compatible project in a manner that would promote safety and convenience for the public and would preserve property values for the surrounding properties. He said that was the zoning embodiment of Horizon 2020 and that was the direction that the Commission’s finding should be moving toward because that provided the overarching rationale for denial of the site plan.
Corliss said there was support for that statement. He said if zoning was the only tool that determined compatibility, he asked why would there be site plan requirements for compatibility. He said there were site plan compatibility requirements as they related to how that use integrated.
He said staff had placed a lot of value on the purpose statement in 20-1428. He said the conditions of approval in 20-1432 were also important. He said the code was referring to the entire chapters of Chapter 20 and 21. He said they needed to be genuine to the law and not look for nuances that were not there, but for requirements that were there and how that site plan failed to meet those requirements.
Moved by Schauner, seconded by Highberger, to direct staff to prepare findings of fact and rationale supporting a denial of a site plan (SP-07-59-04) for Wisconsin Apartments located at 1710 West 7th Street. (9)
Receive staff report concerning wood shingles/wood shakes as roofing material on residential homes.
Dave Corliss said a citizen, Stu Nowlin, brought to the City Commission’s attention the issue of restrictive covenants which required property owners to maintain wood shingles/shakes on their residential property. He said staff provided a report that highlighted some of Nowlin’s concerns. He said staff reviewed the fact that those roof covering materials were acceptable materials under the City’s currently adopted building code.
He said the National Fire Protection Association was not supportive of that type of roof covering materials because of some of the fire spread concerns that were associated with that type of construction.
He said staff reviewed the law on restrictive covenants which were private contracts sometimes referred to as “private land use control.” He said the usual trajectory of those situations was where a developer that owned that property restricted the uses of materials and details of the ownership for that property. He said as the property was developed, those restrictive covenants were enforced by the fellow property owners and could only be amended as the restrictive covenants were set out by the property owners. He said roofing materials was one of the more familiar restrictive covenants.
He said municipality authorities did not have the legal authority to enforce restrictive covenants. He said staff had looked at litigation of legislation concerning restrictive covenants and there had been some attempts, including local attempts, to prohibit the establishment of persons with restrictive covenants that would permit wood shingle/shakes, but did not allow for asphalt shingles.
He said there was a specific ordinance that the City of Shawnee adopted that stated that if there were restrictive covenants that required wood shake/shingle roofing materials that a person would need to allow for asphalt shingles. When looking at the cost comparison, asphalt shingles were less expensive and did not have those fire spread concerns that were associated with wood materials. He said that was the subject of current litigation.
He said he talked to the City Attorney in Shawnee and the United States District Court found that ordinance violated the Contract Clause provisions of the U.S. Constitution which was not a frequently used area of the law, but provided rationale for the opinion for why that was inappropriately local legislation and why it interfered with that private contract. He said that litigation was on-going.
He said there were some jurisdictions, including the State of Texas, that had prohibited restrictive covenants that had provisions that required the use of wood shingle or wood shakes. That idea raised an interesting policy dilemma. He said the property owner would be stuck with the rest of the restrictive covenants which might include clay, tile, and slate. He said he was not an expert on roof materials, but it was his understanding that those materials could be expensive and there could be issues about the roof supporting that heavy of a material. He said that was not the best policy choice in taking away the wood materials and essentially leaving it for the more expensive materials. He said it could raise questions concerning fire safety. If legislation was limited simply to restrictive covenants and if the materials were not safe, why not ban the materials.
He said staff had not had the opportunity to share this information with the building community, neighborhood association, or boards.
Vice Mayor Highberger asked if the City Commission would be on safer ground to adopt an overall prohibition rather than trying to overturn existing restrictive covenants.
Corliss said yes. He said if there were some rationale as to why certain materials were not safe for building materials you would rely on the National Fire Protection Association recommendation not to use those types of materials. He said he thought the Commission was on solid legal ground, under police powers, to regulate for public health and safety. If the City Commission was simply adopting an ordinance that would prohibit those private contracts, the Commission would not be on a strong rationale because you were not achieving that goal.
Commissioner Schauner asked what type of fire history Lawrence had that would support the serious consideration of such a total ban on wood roof projects.
Rich Barr, Fire Marshall, said by memory he could only think of 2 or 3 instances where they had fire spread to roofs that had shake construction.
Commissioner Schauner asked over what time period were those 2 or 3 fire incidents.
Barr said approximately 20 years.
Corliss said when talking about fire spread, they were talking about fire that might start with one structure and then spread to another structure. He said the fact that there were those types of roofing materials enhanced the likelihood of that fire spread.
Commissioner Schauner asked Barr to supply that data concerning fire incidents to the City Commission.
Stu Nowlin, Lawrence, presented material to the Commission which read:
“The first document is the state fire marshal’s report on wood roofs. Of all roof materials wood roofs are about 20% of the total. However, in Kansas, they have roughly 2/3rds of the damage from fire for the total of all roofs.
The second attachment is a copy of the ordinance I originally requested you to consider for adoption. This model would have allowed the homeowner a choice of materials available. Objections to this approach are aesthetic and economic. That is, the PERCEPTUAL value added to this roofing material in the ‘70’s by developers and real estate salespersons has been transformed into monetary value by some. They believe their homes would lose value.
The third is from the Lawrence Journal World from March 12 of this year. The Federal Emergency Management Administration has stated in areas with strong winds, such as Kansas, other materials for roofing, such as asphalt shingles, be used in place of wood to better enable the home to protect its occupants.
The fourth attachment is a story from the Kansas City Star dated Jan. 11, 2002. An electrical fire destroyed the home of a builder causing between $800,000 and $1,000,000 in damage. The blaze was fueled by wooden shingles. “When these things get going” fire department spokesman Marty Dashiell said, “ it’s almost as if they’ve been soaked in premium gasoline and there’s almost no stopping it.” Mr. Dashiell added, “I can’t find anything in my experience that I can think of that burns more quickly than wood roofs.”
The fifth document is an editorial from the Lawrence Journal World of May 5, 2004. Addressing this commission the writer said that since no disasters have occurred the city commissioners should leave this matter to the homeowners. The writer continued saying of the petitioner, me, that I might be seeking a cheaper roof or that I wanted to save on my homeowner’s insurance. The writer concluded, “…allowing people to break housing covenants PRIMARILY [emphasis mine] because they want to save money would be a bad precedent to get.”
When I was last before the commission I argued for safety and the safety of our neighbors. In SUPPORT of this I stated that insurance companies, who are in the business of assessing risk and making a profit from this, either charged homeowners in Kansas a surcharge (my surcharge is 17%) or that they would not insure a home with a wood roof. They reasoned that the exposure to risk with these roofs was due to the increased damage they sustained compared to other roofing materials and to their fire hazard.
Other appeals to you have argued that I didn’t read my contract and because of MY MISTAKE [emphasis added] I have asked for an ordinance. This assumes knowledge they cannot have and is incorrect. SINCE I read my contract, very carefully I might add, and signed it, I have learned from the press and from my own insurance company about the dangers associated with wood roofs.
The Kansas State Insurance commissioner’s office made some observations paralleling my own company’s experience. In addition to the obvious fire hazard there is increased damage from hail, freezing & thawing, icing, sun and wind.
My insurance company stated that even with fire retardant treatment wood roofs was still a fire hazard more so than any other roof. Further, the treatment needed to be reapplied yearly to offer any fire retardancy.
When new data becomes available it is our responsibility to assess it and act, if that is required. Building materials have been banned when a health risk was demonstrated. Lead based paint, which gives a durable and pleasing finish, has been banned. Asbestos, an excellent fire retardant, is very tightly regulated.
Our own fire marshal and fire chief are on record opposing the use of wood materials for roofs. They supplied staff with considerable documentation on this matter.
My opponents argue that since massive fires have not happened here we should not bother with this matter. The best I can say about this argument is that it is irresponsible.
Others have argued that signatories to these covenants have made their bed and now they must lie in it. Covenants, like all contracts, are modifiable for a variety of reasons. For example, covenants that discriminated against minorities, racial or religious, have been banned. Still others argue that they will see a decrease in theirs home’s value if other materials are allowed their neighborhoods. Well, no in Lawrence! I live on a street that has shake on one side of the street and asphalt on the other. Comparable homes sell for comparable prices on both sides of the street.
The sixth attachment shows a recent change in roofing materials that presents very well indeed and looks similar to shake. It also has the very highest fire classification. It is just one of many examples of new products giving aesthetic qualities to a roof. There are more products under development.
The seventh and last attachment is from the Kansas City Star dated July 11 of this year. It is a lengthy article on roofing materials. The byline? “New materials push fire-prone wood shingles out of favor.” The article continues, “The fire dangers have received attention in recent years and have prompted some cities to take action. ‘The issue we have with the wood roof is fire spread,’ Overland Park Fire Chief Dennis Meyers said. ‘The wood roofs are our biggest fire risk in Overland Park.’”
Our own fire experts agree. Insurance companies doing business in Kansas charge more to cover these known risks.
The District Court for the District of Kansas in civil action number 03-2041-CM argued, on page 14, “If wood shake shingles and other roofing materials rated less than Class C truly ‘ present a substantial threat to public safety,’ the City should pass an ordinance specifically directed at keeping those roofs from being installed on homes built within the City’s borders. Simply put, if the problem is wood shingles, the City should ban them. Another alternative would be to enact an ordinance similar to the Texas code, which would void deed restrictions that require the use of wood shingles. These types of ordinances would be directed specifically at the use of wood shingles and would, therefore, be of a character appropriate to the City’s stated public purpose.”
I would like to ask you to consider a ban on all future wood roof installations in Lawrence on new construction and on replacement roofs for existing buildings. A ban makes it equal for everyone. A ban would no materially change property values. Please consider a ban similar to the ones in other cities or the one used for the State of Texas.”
Commissioner Dunfield asked how the covenant on Nowlin’s house would be affected if the City Commission were to ban wood shingles.
Nowlin said the restrictive covenant only allowed for wood roofs and no other choices.
Commissioner Schauner used his case as an example. He said his restricted covenants prohibited asphalt, but permitted wood, slate, clay tile, and other materials. He asked what impact that would have on someone with that type of restricted covenant.
Nowlin said they would have a more expensive material to put on their roof and they would need to approach their Homeowners Association because it would be an aesthetic change. The association would approve on the basis on what they considered to be an appropriate roof for the community for the look that they desired to have in that particular community.
He said also it could be argued that new products coming along should be allowed if those products would get you close to the look you wanted and give you safety for your home and family.
Commissioner Schauner said if he was unsuccessful in convincing his Neighborhood Association to permit some change in those restrictive covenants, he asked where he would be.
Nowlin said land contracts in Kansas were looked at closely by the courts.
Commissioner Schauner asked what would Nowlin’s position be if the City were to ban future use of wooden roof materials, but made no ban about the replacement of existing wooden roofs in existing neighborhoods.
Nowlin said he did not like that idea because it did not apply equally to everyone. If the issue, as the court had argued, was about public safety and the City’s responsibility for public safety, then it should apply equally. He said that was made in the case in Shawnee.
Hack asked if he had met with the Quail Run Neighborhood Association about his concerns.
Nowlin said he had met with neighbors a number of times, but the discussions had been informal. He said they had not gotten together to discuss this issue to come up with a proposal to be brought to the City Commission. He said the genuine concern of the neighbors was what would happen if someone put an inexpensive roof from a discount store on their home.
Bill Mitchell, Lawrence, said he lives in an area with restrictive covenants, but their covenants did not cover roofing materials. He said statistics were shown that 2/3 of roof fires were on wood roofs, but his question was how many roofs was that. He said Barr had mentioned that in the last 20 years there were 2 or 3 cases of roof fire spread on wood roofs. He asked how that compared to the number fires that were caused by candles, kitchen stoves, or faulty extension cords. He said that was really apples and oranges because wood roofs did not cause fires. He pointed out that wood was a renewable resource, but asphalt was not.
He said covenants running with the land had been agreed to by consenting adults, but one of those consenting adults was now trying to engage the Commission as an accomplice to his breach of contract. He said what the City Commission did was precedent. He said if the Commission helped Nowlin abrogate his covenants, he asked where that left his covenants. He said covenants were neighborhood enhancers and he would expect this Commission to be doing everything it could to strengthen their covenants.
Mayor Rundle said in his opinion this should go to the appropriate Code Boards before the Commission weighs in on this item.
He said the various codes were reviewed every two years and he asked Barr if this was something that came up among the amendments that were proposed at the National Fire Protection Association.
Barr said fire and building codes were reviewed and republished every three years. He said as far as the shake discussion, he said the current building code allowed the use of those shakes, but he was not sure the 2003 Code prohibited those shakes.
Mayor Rundle asked Barr to look into whether or not this was something that was on the radar screen from time to time for the NFPA.
Barr said staff would review those proposals and if those proposals were related to wood shingles, and why they were defeated.
Mayor Rundle said it seemed that the various Code Boards, right now, had their plates full with the review of the International Code. He said he did not know if staff could add this idea to their workload as other issues were cleared off. He said it was staff’s recommendation that this issue received wide public review and he was in favor of that.
Commissioner Schauner asked Corliss the status of the City of Shawnee litigation.
Corliss said the district court decision was a preliminary injunction. He said when he talked with their City Attorney, the attorney indicated that they were trying to solidify the record for appeal, but that had not occurred yet. He said there was some concern that there might be additional litigation if they tried to follow the Texas model as opposed to the model that they had already talked about adopting. He said he did not believe that that issue was pending before the 10th Circuit.
Commissioner Schauner asked if there had been a trial on the merits of this case.
Corliss said no. He said there was testimony presented at the injunction hearing, but there was no trial.
Commissioner Schauner said he agreed with the Mayor in that his preference would be to wait until the smoke cleared on the Shawnee litigation as well as whatever other input the Neighborhood Associations and Code Boards wanted to provide the City Commission before they did anything further with this issue.
Commissioner Hack said she would follow staff’s recommendation to ask that this issue go through the Uniform Fire Code Board of Appeals and the Uniform Building Code Board of Appeals.
She said she was not unsympathetic to Nowlin’s situation because she knew how much he cared for his home and neighborhood. She said she wanted to make sure that there were not any unintended consequences of this action with each neighborhood covenant being different.
Commissioner Schauner asked if there would be a problem if the Commission was to ban the future use of wood roofing materials as opposed to interfering with any existing covenants. He asked if that idea would change the legal landscape.
Corliss said he did not think so. He said when talking about police power, that was the general authority of state and local governments to regulate on behalf of public health, safety, and welfare concerns. A traditional police power item would be to prohibit the use of something based on a public safety concern such as a fire spread concern. He said the prospective ban was the most protective from a legal standpoint. He said whether or not that would achieve all the Commission’s policy goals he did not know because there were concerns about those that would be required to follow maintenance issues.
Vice Mayor Highberger said he agreed with all the previous Commissioner comments. He said he appreciated Nowlin’s research on this matter and he did not question Nowlin’s motives.
He said he did not share Mitchell’s enthusiasm for restrictive covenants especially the way those covenants proliferated, but they were contractual arrangements and he did not think the contact should be interfered with unless there was a compelling public policy reason. He would prefer to wait on this matter and wait for comment by the Code Boards.
Commissioner Dunfield said he would like to be a little more specific on this issue. He said it did not seem that they would not want to get into interfering with restrictive covenants because those were private contracts. He said if talking about a public safety issue, then they would be talking about restricting the use of materials and that had nothing to do with covenants in particular neighborhoods, but the use of those materials on houses or structures within the City of Lawrence.
He suggested as the Boards looked at this issue to keep the issue in that context and keep the issue of restrictive covenants and the Commission interference of those covenants out of the picture.
Commissioner Schauner said he did not see how to do one without directly impacting the other. He said if the covenant spoke to a particular type of roofing material that was required, banning that material had a direct impact on that covenant. He did not know how the Commission would disengage themselves from that Shawnee style argument. He said that was why he asked about a future ban as opposed to a retro-active ban that would have an interference argument about existing covenants. He said the Commission needed more information.
Mayor Rundle asked Corliss if a future ban on wood roofs was implemented, would it be through zoning regulations and if so, would it end up causing non-conformity.
Corliss said it would be a building code requirement that would indicate that on future construction or maintenance, in which the word “maintenance” would need to be defined, that certain materials would not be allowed from a construction standpoint.
Commissioner Dunfield said when the issue was put into that context it would come back to Mitchell’s point about what was the relative risk. He said they talked about public safety but obviously there was always some degree of risk and the point was made was how serious was that risk in the scale of all the other issues that were out there that created risks. He said he would like to see that issue considered in that context.
Mayor Rundle concurred with Commissioner Dunfield.
Corliss said it sounded as if the Commission would like those Boards to look at the pro’s and con’s of the public safety risk of those materials and look at the pro’s and con’s of an ordinance banning wood roofing materials in addressing the issue of new construction or maintenance.
Commissioner Schauner said what he was trying to avoid was the covenant question because that was a deep expensive hole to engage in trying to interfere with restrictive covenants. He said if it was just prospective use of that material on new construction, he did not have a problem with that idea being the focus of the investigation. (10)
PUBLIC COMMENT: None
COMMISSION ITEMS:
Commissioner Schauner said he continued to get comments from citizens about road construction project delays. He said he would like a report from staff about recent major road construction projects such as the West 6th projects and the 19th and Barker because those projects drug on longer than those citizens felt was reasonable. He said he would like a report about those projects, why those projects were delayed past the anticipated completion dates, and why those delays took place. He said that would be good information for him to share with citizens when they raised those concerns and issues.
Mayor Rundle said there was some background material that he had gone over with staff. He said Chuck Soules, Public Works Director, intended to do some additional work and look at a specific project as a case to expand on the information on the initial report.
Commissioner Schauner said staff was looking at incentives for completing some of that work.
Mayor Rundle said that idea was the context of that background material and that issue should be brought back in the next 6 weeks or so.
Commissioner Hack said she hoped people would look at the results of 6th Street, 19th and Barker, and 15th Street because staff had done a remarkable job of providing a much such safer transportation foundation for this community.
She said the City needed to make sure they were getting every dime of work they paid for.
Moved by Schauner, seconded by Dunfield, to adjourn at 8:00 p.m. Motion carried unanimously.
APPROVED:
_____________________________
Mike Rundle, Mayor
ATTEST:
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Frank S. Reeb, City Clerk
CITY COMMISSION MEETING OF AUGUST 4, 2004
1. Bid – Continuously Operating Reference Station to Seiler Instruments for $18,090.
2. Airport Contract – reconstruction of runway 1-19 to ESS, Inc., for $98,900.
3. Engineering Service Agreement – BG Consultants for $56,731.40 for Lake Pointe Dr., Clinton Pkwy to 22nd Terrace & roundabout at intersection of Clinton Pkwy & Lake Pointe Dr.
4. Ordinance No. 7751 – 1st Reading, Rezone (Z-11-40-03) 41 acres, A to RS-1, E of GWW at Harvard.
5. Ordinance No. 7802 – 1st Reading, Health & Sanitation Code amendment, (Chpt 9) environmental code standard and furniture on porches.
6. Site Plan – (SP-06-24-04) 1416 Tennessee, remodel boarding house.
7. Mortgage Release – Jeremy & Kelly Brakenhoff, 2704 Ann Ct.
8. City Manager’s Report.
9. Site Plan – (SP-07-59-04) Wisconsin Apts, 1710 W 7th.
10. Wood Shingles/Wood Shakes as roofing material on residential homes.