February 21, 2006

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 Highberger presiding and members Amyx, Hack, Rundle, and Schauner present.  Student Commissioner Frei was present. 

RECOGNITION/PROCLAMATION/PRESENTATION:

Mayor Highberger recognized Van Go Mobile Arts Inc., for receiving The Coming Up Taller Awards, a national award juried by the NEA, the NEH, the President’s Committee on the Arts and Humanities, and the Institute of Museum and Library Services, recognizing and supporting outstanding community arts and humanities programs that celebrate the creativity of America's young people, providing them learning opportunities and chances to contribute to their communities.

CONSENT AGENDA

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve the City Commission meeting minutes of February 7, 2006.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to receive the Historical Resources Commission meeting minutes of December 15, 2005; the Lawrence-Douglas County Health Board meeting minutes of December 19, 2005; the Parks and Recreation Advisory Board meeting minutes of January 10, 2006; and the Human Relations Commission meeting minutes of November 16, 2005.  Motion carried unanimously. 
As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve claims to 312 vendors in the amount of $2,322,645.81 and payroll from February 8, 2006 to February 18, 2006 in the amount of $1,554,788.76.  Motion carried unanimously.     
As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to concur with the recommendation of the Mayor and appoint John Reeves to the Lawrence Arts Commission to a 3 year term which will expire January 31, 2009.  Motion carried unanimously. 
As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to authorize the City Manager to execute a farm lease agreement with Roger and Ralph Kitsmiller for $76/acre/year payable for approximately 55 acres adjacent to the City Wastewater Treatment Plant.  Motion carried unanimously.                                                                                                                              (1) 
As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to set a bid date of March 7, 2006 for the 2006 Overlay Program, Phase 1.  Motion carried unanimously.                                                                                                                        (2) 
As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve the sole bid from Hillcrest Wrecker for towing service with the option to renew in the amount of $38,180.  Motion carried unanimously.                                                                   (3) 

Ordinance No. 7977, allowing possession and consumption of alcoholic beverages on certain city property pursuant to a Mad Greek Restaurant Sidewalk Dining License, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                  (4)

Ordinance No. 7964, rezoning (Z-10-75-05A) .146 acre from C-5 (Limited Commercial District) to RO-1A (Residence-Office District), located at 705 Arkansas Street, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                  (5)

Ordinance No. 7965, rezoning (Z-10-68-05) 2.458 acres from C-5 (Limited Commercial District) to RM-2 (Multiple-Family Residential District, located between West 6^th and West 7^th Streets, east of Iowa (north half of 2001 and 2021 West 6^th Street), was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                                                                  (6)

Ordinance No. 7966, rezoning (Z-10-70-05) 1.60 acres from RM-2 (Multiple-Family Residential District) to RO-1A (Residence-Office District), located between West 6^th and West 7^th Streets, east of Wisconsin Street (1618-20-22-24, 1610-12-14-16, 1602-04-06-08, and 1617-19-23-25 West 6^th Terrace, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                            (7)

Ordinance No. 7967, rezoning (Z-10-71-05) 2.27 acres from RM-2 (Multiple-Family Residential District) to RO-2 (Residence-Office District), located north of West 7^th Street, west of Florida Street (1611-1613, 1603-1605 West 6^th Terrace, and 1416 West 7^th Street, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                          (8)

Ordinance No. 7968, rezoning (Z-10-73-05) .58 acre from RM-3 (Multiple-Family Residential District) to RS-2 (Single-Family Residential District), located north of the intersection of West 8^th Street and Avalon Road (1611 West 8^th Street, northwest portion), was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                  (9)

Ordinance No. 7969, rezoning (Z-10-74-05) .84 acre from C-5 (Limited Commercial District) to RO-1 (Residence-Office District), located at the northeast corner of Florida and West 7^th Street (616, 620, & 624 Florida Street), was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously. (10)

Ordinance No. 7970, rezoning (Z-10-76-05) 3.0 acres from C-5 (Limited Commercial District) to RM-3 (Multiple-Family Residential District, located at the southeast corner of West 7^th Street and Lynch Court (1407, 1411, 1421, and 1431 West 7^th Street, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                                                                    (11)

Ordinance No. 7971, rezoning (Z-10-77-05) .51 acre from C-5 (Limited Commercial District) to RO-2 (Residential-Office District), located at the southwest corner of Michigan and West 7^th Street (701 Michigan Street), was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.   Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                    (12)

Ordinance No. 7976, making illegal the possession of certain weapons within or in close proximity to drinking establishments, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                   (13)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to authorize the distribution of the Request for Proposals for Coordinated Public Transporation Plan, in conjunction with the University of Kansas.  Motion carried unanimously.                    (14)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve the site plan (SP-10-72-04-conditions had been met) for a one-year extension request of previously approved site plan for a new church (Seventh-Day Adventist Church) to be located at the southwest corner of West 6^th Street and Branchwood Drive  Motion carried unanimously.                                                                                                                                                         (15)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve the site plan (SP-11-94-05) for an addition to the existing Central Jr. High School, located at 1400 Massachusetts.  Motion carried unanimously.                                            (16)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-06-39-05) of approximately 12.329 acres from I-1 (Limited Industrial District) and A (Agricultural District) to RM-2 (Multiple-Family Residential District) (the property is generally described as being located south of East 23^rd Street/K-10 Highway between O’Connell Road and Franklin Road) and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                     (17)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-06-41-05) of approximately 17.889 acres from I-1 (Limited Industrial District) and A (Agricultural District) to M-1 (Research Industrial District) (the property is generally described as being located south of East 23^rd Street/K-10 Highway between O’Connell Road and Franklin Road) and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                                       (18)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner,  to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-06-42-05) of approximately 28.833 acres from B-1 (Neighborhood Business District) to I-1 (Limited Industrial  District), and A (Agricultural District) to C-5 (Limited Commercial District) (the property is generally described as being located south of East 23^rd Street/K-10 Highway between O’Connell Road and Franklin Road) and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                  (19)

Commissioner Schauner pulled from the consent agenda, the site plan (SP-01-08-06) for a 42-unit single-family residential development, located at 2221 Lake Pointe Drive.

Mayor Highberger said there had been previous discussion by the City Commission concerning how to handle items that were pulled from the consent agenda.  He said it was a consensus from the Commission that without giving proper notice to all the parties involved, it would be better practice to defer the item so that everyone had a chance to know that that item would be placed on a future agenda for discussion.

Moved by Rundle, seconded by Schauner, to defer for one week, the site plan (SP-01-08-06) for a 42-unit single-family residential development, located at 2221 Lake Pointe Drive.  Motion carried unanimously.                                                                                                              (20)

CITY MANAGER’S REPORT:

During the City Manager’s Report, Mike Wildgen updated the City Commission on the construction work at 8^th and Kentucky involving a collapsed portion of a sewer line.  He said Douglas County Bank had been cooperative in giving the City an easement that helped with that construction.  Both City staff and several contractors worked over the weekend to get a lot of the major work completed.  He said staff anticipated that it would be completed by the end of this week or early next week.                                                        

Also, he presented to the Commission, the Downtown Beatification Report which would be on the City Commission’s agenda next week for discussion.

Finally, Wildgen said that the police reports concerning accidents were now on-line and were free to the public.  The web address is:  www.lawrencepolice.org

Commissioner Schauner asked about the Plastic Manhole Project Report and whether staff no longer permitted the installation of plastic manholes in the future.

Wildgen said he needed to check with Dave Wagner, Assistant Director of Wastewater, on that answer, but given the conditions that those plastic manholes were in, he suspected that was correct.   He said it might have been just the specification for those particular plastic manholes.                                                                                                                                  (21)

REGULAR AGENDA ITEMS: 

Consider adopting findings of fact; approving rezoning requests; authorizing drafting of ordinances for placement on future agenda:

a) Z-12-78-05:  A request to rezone a tract of land approximately 8.19 acres from RS-2 (Single-Family Residential) District to RM-D (Duplex Residential) District.  The property is generally described as being located north of Harvard Road and east of George Williams Way.

Sheila Stogsdill, Acting Planning Director, presented the staff report.  She said this was a recommendation for denial based on a 6-3 vote for this rezoning that was proposing to rezone this strip of land just east of George Williams Way and north of Harvard Road from RS-2 to RM-D.  The developer had previously requested the entire subdivision to be rezoned to RM-D due to changes in the market, but then backed off of that request and replatted the lots to the east for smaller lot, single-family development.  The Planning Commission was split partly due to the fact that they recognized there was a need to have a mix of housing within neighborhoods and provide a little bit more of a range in terms of entry level homes. The concern that was expressed was that this was not necessarily planned from the beginning when the subdivision plat was first brought forward to be an integrated mixed development and there had been multiple property owners who had purchased homes in the recent past based on the fact that this was portrayed as a single-family neighborhood.

Mayor Highberger called for public comment.

Alan Cowles, West Lawrence Neighborhood Association, said not many of their members had been over the details of this particular project, but nevertheless, they had consistently opposed this type of rezoning in the middle of a single-family residential area and was also an example of incremental rezoning.  He said when they saw that type of rezoning, they should be alert as to whether or not there as a good reason for it. For instance, had there been a change in the land, surrounding area, or needs of the community and the answer was no in this instance and they did not see a good reason for this incremental rezoning.  He said the association recommended that this rezoning be turned down just as the Planning Commission’s recommendation for denial.   He said at the same time, he hated to say anything against the builder and developer because there had been good communication with the association. 

Vice Mayor Amyx said the Planning Commission did a thorough investigation on this rezoning.  He said it was apparent that the applicant was making that decision based on economic changes in the market and as much as he believed that economics did play an important role in how zoning would change.  This was a case where zoning dropped in an entire area where the zoning did not fit that area.     

Moved by Amyx, seconded by Schauner, to concur with the Planning Commission recommendation to deny the rezoning and adopt the findings of fact.  Motion carried unanimously.                                                                                                                                     (22)

b) Z-10-67-05:  RM-2 to RS-2; 2.15 acres north of W. 5^th Street between Wisconsin and Michigan Streets (1620, 1612, 1604, 1512, 1508, 1500 W. 5th Street; 446 Florida Street.

Sheila Stogsdill, Acting Planning Director, presented the staff report.  She said this rezoning request along the north side of west 5^th Street in the Pinckney neighborhood was one of the rezonings that resulted from the HOP Plan (Hillcrest, Oread, and Pinckney).  She said the recommendation was to rezone seven properties from RM-2 to RS-2 (single-family).  During the course of staff’s work on this rezoning, staff was informed that one of the properties, 1512 West 5^th contained two single-family homes and rezoning would have made that property non-conforming. That issue was not known at the time the rezoning was initiated and the property owners presented their case to the Planning Commission.  Staff had not actually recommended that that area be rezoned to single-family because there was a lack of transition between RM-2 to the south, RM-2 to the north, and RM-1 to the south.  The HOP Plan had also recommended that properties be rezoned to their current land use designation and there were compelling reasons to move forward with those rezonings.

She said staff met with the property owner at 1512 West 5^th Street and with Gwen Klingenberg, Coordinator for Pinckney Neighborhood Association, and had worked out a compromise. She said the City Commission’s packet included a letter from the Pinckney Neighborhood Association which suggested only rezoning the eastern three properties to RS-2 and those specific property owners were in favor of having their single-family homes down zoned.  There was also a protest petition for 1512 and 1612 and to rezone to RS-2 would require a supermajority vote to override that protest petition.  The compromise was that the City Commission would not do any sort of zoning action tonight on those four western properties and what the Neighborhood Association would like to do was to leave the door open and come back with a larger look at the RM-2 area to look to see if RM-1 as a more reasonable transition and would be appropriate which was part of the early discussions that staff had for that area.  She said Klingenberg had stated that the property owner on the far west end of the block had indicated he was not opposed to RM-1, he just did not want to be rezoned once and then rezoned again.  She said the owners of 1512 West 5^th were not opposed to eventually being rezoned to RM-1 which would allow their uses to remain as legal uses.  The recommendation was to rezone and there was a request to rezone only a portion and to simply withdraw the request for the remaining four properties on the west side.  Since the City Commission initiated the rezoning, that could be done.

Commissioner Rundle asked if that did not require a supermajority vote.

David Corliss, Assistant City Manage/Legal Services Director, said a supermajority vote was needed in order to approve the Planning Commission’s recommendation because of the protest petition.  He said what could be done was that on the eastern properties, if it was the Commission’s desire, they could override the protest petition which applied to all of those rezonings and approve the Planning Commission’s recommendation for those properties that wanted the RS-2 zoning.  On the remaining properties the City Commission would need to take a vote on the recommendation.   He said the protest petition requirement could be defeated by a supermajority vote, but he did not think that would be the will of the Commission for the western property if the Commission wanted to follow the property coordinator’s recommendation.  He said the City Commission’s best course of action would be to withdraw the matter which would close the file.

Commissioner Rundle said the neighborhood also wanted the City Commission to proceed as quickly as possible with the initiation of the review of the alternatives.

Stogsdill said Klingenberg had indicated that they wanted to take some time to really look at the land use pattern at that location.  She said Klingenberg also wanted to express her appreciation on the Neighborhood Association’s behalf for the City Commission enacting the building permit moratorium.  She said their association had no intention of asking for an additional moratorium and they appreciated staff’s support and would continue to work with staff to identify an area and then notify those property owners before coming back to the City Commission for an initiation.

Mayor Highberger said he thought the proposal was to move ahead with the rezoning of the eastern three properties.

Corliss said by a supermajority vote the City Commission could move the eastern properties.  He said his difficulty was that the Planning Commission was giving the City Commission a recommendation and he had a concern about the City Commission not acting upon that recommendation even though there were intervening facts that indicate that they wanted to proceed down a different course.  He said the City Commission’s best action would be for the Mayor to ask for a motion to approve the rezonings, but that motion might die for a lack of a second.  The Commission could take that vote as a lack of action and then withdraw it.  He said he was concerned about the precedent of not acting upon a Planning Commission recommendation.  That was something that needed to be put on the table as a body.  The Mayor could ask for a motion to approve what had been given to the City Commission from the Planning Commission and if there was no motion, then they could say, as the applicant, they would withdraw it, if that was the City Commission’s will, with the understanding that within the next few months, the neighborhood was going to come forward with a more global look at it.

Commissioner Schauner said by doing that, that would not give them rezoning on the eastern three properties.

Corliss said the City Commission would act to override the protest petition for just those parcels.

Schauner said the City Commission could disaggregate by a motion, the seven properties.

Corliss said that was a reasonable thought.

Vice Mayor Amyx asked if the Commission could consider it separately.

Corliss said yes.

Vice Mayor Amyx said if the City Commission disagreed with the Planning Commission, he asked if that issue would need to go back to the Planning Commission.

Corliss said the City Commission was not disagreeing with the Planning Commission on the eastern properties, but only on the western tracks because they would be indicating that they did not want to down zone to RS-2.  The City Commission’s action was either to approve what they wanted, override by a supermajority, or refer it back with a majority vote.

Commissioner Schauner said he was concerned about whether the City Commission had the authority to take the Planning Commission’s common motion, action common to all seven properties, and pull those apart and vote independently on those properties. 

Corliss said in most cases rezonings were at the property owner’s request.  He said he had been concerned about those multiple rezonings because it also added to the issue of protest petitions.  Property could be aggregated in such a way that it would not allow for a successful protest petition.  In this case there was a successful protest petition.  Given the fact that those property owners on the eastern part wanted that rezoning, the City Commission was safe to proceed.  The best action for the City Commission was to send back the remaining tracts to the Planning Commission.

Commissioner Rundle said it seemed that he remembered an applicant withdrawing a rezoning request, at the point of seeing that it was going to be denied, and if that was correct it seemed like there was precedent.

Corliss said they had allowed property owners to do that as a courtesy.

Mayor Highberber called for public comment.

There was no public comment.

Commissioner Rundle said it sounded as though there had been a proposal that was going to be mutually agreeable to all parties.  He suggested approving the rezonings for the easternmost properties and withdrawing the other rezonings on the westernmost properties.

Corliss said that was the most expeditious idea given the property owners acquiescence in those actions.  He said the City Commission was not voting to rezone the property in a way that was contrary to the property owners’ positions.  He said he thought the opportunity for challenges would be remote.

Mayor Highberger said he had some concerns about creating such a small pocket of RS zoning although he did support the goal of preserving the single-family housing that was in that area. 

Moved by Rundle, seconded by Amyx, to concur with the Planning Commission’s recommendation to adopt the findings of act and approve the rezoning for the easternmost properties which were 446 Florida,1500 West 5^th, and 1508 West 5^th Street to RS-2; and direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                (23)

Corliss said if the Commission had a supermajority vote the rezoning request could be killed by overriding the Planning Commission’s recommendation, if the City Commission voted to deny that request.  He said that vote to deny the request could be coupled with a request that staff work with the neighborhood association to study the RM zoning of that entire neighborhood and report back to the Planning Commission for an additional initiation.         

Commissioner Rundle said his concern was that they had a one year moratorium unless there was a substantially different proposal.  He asked if the proposal that people had advanced going to RS-1 was substantially different.

Stogsdill said yes.  When proposing to rezone to a different zoning category that was typically considered enough of a difference.   

Moved by Schauner, seconded by Hack, to concur with the Planning Commission’s recommendation to adopt the findings of fact and deny the rezoning for 1512, 1620, 1612 and 1604 West 5^th and to instruct staff to work with the neighborhood association.  Motion carried unanimously.                                                                                                                                  (24)

Consider accepting dedication of easements and rights-of-way on the following plat:

PF-11-43-05:  Final Plat for Cypress Park Addition.  The property is generally described as being located at 1801 Learnard Avenue.  This proposed five-lot single-family residential subdivision contains approximately 2.229 acres. 

Paul Patterson, Planner, presented the staff report.  He said this particular plat divided the property into five lots.  This item was heard and denied as a preliminary plat before the Planning Commission on July 25^th, 2005.  On November 8, 2005 the City Commission approved the Preliminary Plat through a de novo hearing and on December 12, 2005, the Planning Commission concurred.  Since then the final plat had been submitted and the planning Commission heard this item on January 23, 2006, and they approved the final plat subject to 5 conditions listed in the staff report.  He said the matter before the City Commission was the acceptance of the road right-of-way and dedication of the easements.  

Commissioner Rundle asked about the road right-of-way.

Patterson said there was 60’ of road right-of-way for Learnard Avenue.

Mayor Highberger called for public comment.

Patricia Sinclair, Lawrence, said her front porch view would look out to this proposed addition.  She said she was personally upset at the course that this issue had taken through this de novo appeal.  He said there were flag lots that were going out with the new city code and a de novo appeal process that she questioned whether that was still a legal statute.  She said it was based on a 1981 statute and the whole process was going to be out in the new city code as well. 

She said essentially what happened was that the Planning Commission considered this final plat in July and denied it because there were a number of concerns.  One big concern was stormwater.  There were concerns about shared driveways, possible other subdivision in the future, traffic on to Learnard which did not have sidewalks, and other concerns.  She said this subdivision seemed out of the character of the neighborhood.  Barker neighborhood had a mix of properties and homes, larger and smaller lots, but she did not think a need for infill housing should destroy a character of a neighborhood.  This might be the best plan they could get, but she did not know that.   She said she also did not feel reassured that what was shown today was what they would get. 

She said there was a section in the code that called for a de novo appeal directly to the City Commission where they could consider a matter that the Planning Commission had denied for subdivision.  She said it was odd that there could be those parallel universes where she was required to be notified when it came before the Planning Commission, but no such notice was required when it came before the City Commission so all they saw were people that the developer and the owner brought along and the neighbors who favored that subdivision.  She said the property owners claimed to have met with the neighbors, but that was false.  She said the property owner never contacted her although he knew about her opposition.  She confirmed that one of the people who was closest to the detention pond submitted comment to the Planning Commission in July and did not approve of that subdivision. 

She said it was shocking in terms of the lack of notice that when it comes to the Planning Commission there was a whole series of conditions that were looked at and when it came before the City Commission, there was no such list of conditions generated.  It also seemed that appeal process, even if that 1981 statute was in effect, she could find no basis in Kansas statutes.  She said no reason was given as to why they were appealing the Planning Commission action. 

She said there had been a subdivision that had been approved with no notice to the people who usually had notification and when it went to the Planning Commission they could vote any way they wanted to, but according to a section of the City Code, on the de novo appeal, it would not matter what the Planning Commission determined.  She said she did not find out about this issue until she received a notice for the second Planning Commission meeting in January and she did not get notification of the first Planning Commission meeting in December, apparently that was not required. 

She said she and David Corliss, Assistant City Manager/Legal Services Director, had a brief conversation about this issue before the meeting and she got confused talking to Corliss because he was drawing distinctions bringing something to the City Commission as a preliminary plat as opposed to a final plat.  She said she had raised the issue of a number of Kansas statutes on zoning and subdivisions seemed to be redone in early 1990’s.  She said on issue, in the state statutes, was KSA 12-752.  She said in her non-lawyer reading of that statute it seemed to say that “here is the way we must do subdivisions in the state.”  The statute basically stated that:

“No building or zoning permit shall be issued for the use or construction of any structure upon any lot, tract or parcel of land located within the area governed by the subdivision regulations that has been subdivided, resubdivided, or replatted after the date of the adoption of such regulations by the governing body or governing bodies but which has not been approved in the manner provided by this act.”

She said she interpreted that to say don’t give him a building permit. The first part of the act discussed what they were normally used to seeing in subdivisions that was having the applicant go to the Planning Commission and all the things that were associated with that and what happened if the Planning Commission said “yes” or what happened if they said “no.” 

She said specifically they had a lot of concerns about drainage in their neighborhood and they were close to floodplain, that dead end on Johnson Avenue part of that area was floodplain as it abutted the land for The Woods.  One of the neighbors in that area already had problems with run-off from Mr. Standing’s property.

She said the City had lost their Stormwater Engineer and his comments were very clear.  She said the Stormwater Engineer stated that: “The final plat dated 11-17-05 cannot be reviewed based on the status of drainage study."  She said the City Commission had expressed concern that this had not been reviewed by the Fire Department and she did not have any knowledge that it had been yet. There were a lot of concerns about those shared drives and who they actually belonged to.    

She said she read the City Commission minutes from the November meeting when this item was considered.  At the conclusion, after the vote to approve the Preliminary Plat, it said the motion was subject to the findings that would be approved the following week and to refer to the Planning Commission for concurrence.  She said she looked through all the following City Commission meetings and she was unable to find any time when this came before the Commission again to give that list of findings or conditions of approval.   It seemed that even if it were a working piece of City Code, the appeal process was so vague in that it did not give a time limit, but it did seem that a person would need to say why they were repealing it and she did not hear the applicant say why he felt he was abused by the Planning Commission.  She said the plat had no additional conditions addressing the concerns that were expressed by the Planning Commission and it disregarded many areas required by our planning code and she asked, “Does the de novo hearing allow the City Commission to decide matters ordinarily considered by the Planning Commission without regard for our code and plan?”

She said drainage was extremely important.  In addition to resubmitting the drainage study, the Stormwater Engineer also said, “Verify that the proposed detention concept works with the road crossing elevation downstream.  Verify that the controlled area actually will reach the basin. 2. The downstream neighborhood does not have adequate drainage paths. It is critical that this development provide control of runoff. The proposed detention concept should be modified to also direct the Learnard Avenue northwest roadside ditch through the detention basin. 3. The final plat dated 11-17-05 cannot be reviewed based on the status of drainage study." 

She said she conferred with both the developer and the planner just before the meeting and they indicated that there had been no change from the Preliminary to the Final Plat.  She assumed those concerns were not addressed because they were experiencing so many problems that were not addressed, or things that change from the preliminary to actual case just east in The Woods development, made her look at this with some level of skepticism if things were not nailed down.

There was also this non-conforming building on that property and the Planning Commission said that building would be a non-conforming use because of the lot size.  She said the owner of the property, she understood, was a contractor and had his vehicles stored all over the property and appeared to use that building as a work related building.

The entire project appeared to ask for exception after exception to the required planning procedures and it did not seem like a very modern approach.

She hoped that they could still consider whether this was a wise decision and was it a legal procedure in terms of the lack of notice and the lack of the ability of the Planning Commission to override the City Commission’s decision.  She said she was not aware of any time that the Commission met about this issue after their first meeting and came up with findings that were supposed to be approved by the City Commission before it went to the Planning Commission.   She asked that the City Commission let her know if she was mistaken about that.

Mayor Highberger asked Corliss to comment on the question about the legality of the procedure for the approval of the de novo review and the preliminary plat.

Corliss said subdivision regulations Section 21-801 stated, “The subdivider of a proposed subdivision may appeal to the governing body decisions made in the enforcement or interpretation of these regulations by the planning department, planning commission or the appropriate engineer.” In this case, the Planning Commission voted to deny the Preliminary Plat.  That action by the Planning Commission was appealed pursuant to this provision of the subdivision regulations to the City Commission and the City Commission then sent back to the Planning Commission the plat indicating that it should be approved.

He said as he understood Sinclair’s inquiry, Sinclair pointed out that in the statutes for the platting proceedings, the Planning Commission determined whether or not the plat conformed with the Subdivision Regulations and the City Commission was the governing body that then accepted or refused the dedication of land for public purposes.  What they styled on the City Commission’s agenda was the acceptance of the dedication of easements and rights-of-way. 

He said in this instance, he believed the Planning Commission action was the denial of the Preliminary Plat.  The Preliminary Plat did not have any statutory authority and did not exist as a statutory document pursuant to the code.  It was essentially an extra ordinary planning proceeding that they had to determine what the initial subdivision, rights-of-way and some cases the public improvement would be and other items related to the eventual platting of the property.  The City Commission’s action in sending back the preliminary plat was not related to an action on the final plat in that regard.  He said Sinclair made the responsive argument to what he just illustrated by saying that while that might be true, the Planning Commission then had their hands tied because they had to approve a final plat that was in accordance with a preliminary plat which was following the subdivision regulations that indicated they went ahead and approved it by a majority vote.                     

He said he did not have a specific attack on the subdivision regulation that provided case law directly on point.  There was case law, in fact Lawrence created the major case law in this area, Moore v, the City of Lawrence, that indicated that the Planning Commission was the body that approved the plat.  The City Commission or the governing body was the body that accepts the rights-of-way and easements.  That said, the City Commission’s action was to accept the rights-of-way and easements. 

He said he tried to understand Sinclair’s arguments. He thought that appeals process in the subdivision regulation could arguably be contrary to state law if it was essentially a means around approving or disapproving what the Planning Commission did where the Planning Commission was the statutory body for approving plats and the City Commission was the statutory body for accepting easements and dedications.     

In the absence of anything finer, as far as any type of litigation on this type of point and also because the action was the preliminary plat which was an extra ordinary planning document, he did not see that this violated the state law.  He did think that 21-801 had some problems in relationship to the state law direction about who approved plats.  The City Commission had the ability in the City Code to override the Planning Commission’s action on a plat that seemed to run counter to the state law that said that the Planning Commission approved plats and the City Commission accepts easements and dedications.

Commissioner Rundle asked what the subject of the de novo hearing was.

Corliss said the subject was the preliminary plat.

Commissioner Rundle said the City Commission’s action on that preliminary plat was the easements and rights-of-way.

Corliss said the preliminary plat showed essentially everything that was eventually on the final plat.  It probably showed more than what was on the final plat as far as public improvements.  There wasn’t really much in the way of other surrounding property, everything else was built out.  Preliminary Plats were not seen by the City Commission ordinarily.  It was a document essentially just to the Planning Commission to plan a broader area generally then what was finally platted, but in a number of cases, which this was one those cases, the preliminary plat and the final plat match up exactly.

Commissioner Schauner said their motion that night was to, “approve the preliminary plat for Cypress Park Addition, property was generally described as being located at 1801 Learnard Avenue, subject to the findings that would be approved next week and to refer to the Planning Commission for concurrence.  Motion carried unanimously.”  He asked if their findings were approved on November 15^th and if not, what was the import of that.  Secondly, by approving the preliminary plat and directing the Planning Commission to concur, was the City Commission, in fact, acting in derogation of the statutory authority granted to the Planning Commission by taking that de novo action and giving such direction.         

Corliss said staff would review the minutes concerning the findings.  He said that was the argument that the City Commission was acting in violation of because the blessing of the preliminary plat required the Planning Commission to approve a final plat.  The preliminary plat did not have any statutory standing.  He said he was also reluctant to point to a City Code provision and on his own state that it clearly violated state law where the Planning Commission could interpret it in a way that did not violate state law.  If the City Commission believed the action was to tell the Planning Commission that this was the final plat that they needed to approve, then that was probably was a violation of state law because it was not the City Commission’s role to approve final plats.      

Commissioner Schauner said he had heard Corliss state that it was not unusual for the final plat and preliminary plat to be the same thing.

Corliss said it was not unusual for those plats to be the same, particularly on in-fill development where everything else around it was owned by other property owners and was already developed.  A number of preliminary plats that the Planning Commission addressed were for larger areas and the developers indicated that they wanted to preliminary plat the entire area that he owned.  He said the developer was requiring that so they could do larger scale planning, but they would only final plat a certain aspect.    

Commissioner Schauner said he was looking at the agenda from November 15^th and he did not find any reference to making findings of fact.  He said he would like to table this matter until they could have a more definitive review of records to see if they followed what they said they were going to do and what they had asked staff to do in providing the Commission with those findings.  He said he would like explanation from staff about how they viewed the relationship between the statutory restrictions on the planning process and how this matter had been handled.  He suggested stepping back from this issue so they did not make a mistake that they would not be able to correct later.

Corliss said he would advise not only Sinclair, but also the applicant as to when this issue would be placed back on the agenda.

Moved by Schauner, seconded by Rundle, to table this matter for three weeks to allow for additional consideration.  Motion carried unanimously.                                                       (24)

Receive request for City financial participation and creation of special assessment benefit district for Delaware Common project, an area generally bordered by Delaware Street, 13^th Street and 12^th Street.

Rich Minder, Treasurer, Lawrence Co-housing Group, LC, Delaware Street Commons, said in year 2000 a group heard a presentation about the concept of co-housing which was a kind of intentional community. In 2001, they purchased a property between 12^th and 13^th on Delaware and proceeded to invest on the development of a co-housing project.  Since then, they had the project rezoned and a preliminary development plan went through twice and then a final development plan was approved and extended.

Now, having completed the development drawings and all of the pre-development work, in 2004 as a group of citizens set out to finance the construction of this project and they had been working on that financing since then and were pleased to be far enough along with that financing that they would be moving forward in the next month.  He said they were very proud as a group of local residents to have had the opportunity and support of City staff in the development of this project over the last five years.  He said they were also very pleased and proud of their financing arrangements that had stepped forward to invest in this project. 

As sort of pioneers of how urban design and community development was done, what they wanted from the City in terms of support was to take advantage of the legal opportunity to include in their project financing a special assessment benefit district so they could, as a matter of financing mix, include City participation in that way.  He said this method of financing was something that would round out their financing package in a way that would complement the work that other entities had done.  In addition, they were asking for participation by the City-at-large in the financing of the public improvements.  He said this was a bold project and a bold proposal and request, but nevertheless it was fitting for a bold project that would put co-housing in Lawrence.  He said to the extent there were a lot of people around the country who were looking for new ways to do urban design and community development, he thought it was exciting that the City of Lawrence would be placed on the national map in this regard and that in itself was public purpose enough to participate in the public improvements in this unique and innovative design project.  He said his intention was to start out that discussion with the City about what that participation might look like.  He said his initial proposal was 90% of the public improvements in the benefit district and wanted to proceed from that point.

Commissioner Rundle said in terms of the bank’s perspective, he asked if there was some breakpoint that the amount of assessments from the benefit district would affect their ability to make a loan.

Minder asked if Commissioner Rundle was asking if they did not get the financial participation in terms of the special assessment benefit district or in terms of participation.

Commissioner Rundle said in terms of percentage of public improvements.  

Minder said they would not go elsewhere.  They intended to go forward one way or the other.  The best way to characterize the mix of financing and the project development as it went was in the process of developing the project there was a number of value engineering opportunities that they had explored that enabled them to continually readjust their mix.  In terms of their financing mix, at this time, they had a pretty firm proposal from Sunrise Credit Union which was a national credit unit affiliated with the Fellowship with Intentional Communities and local investors of various cash and collateral that the bank would need and First State Bank and Trust participation in the project.

If all went according to plans, there were still a few more conditions with the bank that they needed to address and the builder’s final bids before they would feel completely comfortable with this fixed cost contract that they prepared estimates for their initial proposal to the bank.  It would be interesting to point out that he had asked their builder what would be the builder’s liberal estimate of what those public improvements would cost and those cost were coming in at approximately $90,000.  He said the builder was quick to point out that this was not certain until all the bids were in, but Public Works’ estimates were before the City Commission which were substantially higher.  He said they thought that the costs would be somewhere in between their builders estimate and Public Works’ estimate.

Mayor Highberger said Minder was an elected official and Minder knew that the City Commission could not just make those decisions on a random basis.  He asked about the policy justification for City participation in this project and not other projects.

Minder said they, as a group of private developers, were developing a neighborhood for their use.  They were not dedicating the parking lot for public use or making a park for people to come and visit.  He said the public purpose was that there were a number of people who were looking to develop property to create communities that were livable.  He said there was a development going out west that was under the new urbanism concept that anticipated a lot of integrated land uses.  It would be developed as a profitable venture for the developers involved with that project.  This project was an in-fill project in an older part of town on a unique property driven by people to create a neighborhood within a neighborhood that provided an alternative model of how to do community development.  As a matter of public policy, encouraging and supporting that kind of development was a large enough public purpose to place Lawrence on the Midwest map as a City that was open to diversity, innovation, and citizen driven development.  He said he could go back to 150 years ago when people began working in this country when pioneers came to Kansas for free land and if they worked that land for five years, that person would own that land.  There was a group of citizens working on this land for five years and they were asking for a little participation to support this pioneering spirit and that did distinguish this project from a development that was primarily driven by housing and community development as a commodity for profit.

Mayor Highberger said that did answer his question, but he was not sure it gave him enough basis to give them what they wanted. 

Minder said that was as good as explanation as he could give.  He said this was a part of town and everyone knew how the market worked with regard to how land prices were responsive to development pressures and they had worked well with the neighborhood and community to provide property that was right now appraised at $455,000 and all the property sales figures pan out to what they expected, they would see $3.6 million dollars.  In terms of tax value that came to the community in a part of town that could use whatever kind of revitalization it could get. 

Vice Mayor Amyx said the City’s estimate was about $160,000 and they were asking for 90 percent of that.  He said the City Commission had another project coming before the City Commission asking for City participation. 

Mike Wildgen, City Manager, said he anticipated that the developers for the project at 8^th and Pennsylvania would be asking for 95% participation.

Vice Mayor Amyx said his initial reaction was that this was a lot of money and it probably would not happen.  He suggested that the City Commission could look at this project and the project that was coming forward to see if the requests were similar and if there could be participation on common ground for both projects, but looking at this project on an individual basis, this was a bold request.

Minder said he agreed and that was why they were starting with 90% participation.

Commissioner Rundle asked Minder to restate the total value of the project. 

Minder said appraisal as a project before build was appraised at $3.35 million.  He said their plan was that the revenue would exceed pre-development appraisal.  Minder said the last time it was appraised two years ago, the land and property was appraised at $455,000.  The appraisal of the project today, before it was built, was $3.35 million.  When it was built part of the entrepreneurial endeavor was that they thought that after it was built the total appraised value of all of the properties in it would exceed $3.35 million and that was the risk they were all taking.

He said he did not want to imply that their request for a benefit district which was another way of isolating this discussion, was mutually exclusive with participation, if the City Commission opted for Vice Mayor Amyx’s proposal of zero participation, they would still want to keep alive the benefit district for this financing.

Commissioner Hack said every benefit district that was created was unique, but staff had indicated in their report that there were times that the City had participated in some in-fill projects.  She asked about examples of those projects that included City participation.

Wildgen said the most recent project was west of Maine on 3^rd Streets where the Tenants to Homeowners had a project and the City Commission agreed to improve 3^rd Street.  He said he thought that amount was 75% City-at –large and the Commission deferred payment for the property on the north side and the City was absorbing that cost until it was redeveloped.

Commissioner Rundle asked if Tenants to Homeowners serve lower income.

Wildgen said yes, but the applicant needed to qualify.  

Commissioner Hack asked if the City was asked to participate in the Bauer Farm project in terms of a benefit district.

Wildgen said he did not believe so. 

Corliss said the City Commission participated in the financing of Folks Road as well.  He said he did not know if that was in-fill or the importance of connecting that collector street between Harvard and 6^th Street.  He said to respond to Minder’s last comment, if the City received a special assessment benefit district request that did not require city-at-large participation, staff would simply prepare the resolution and the City Commission would conduct the hearing and proceed and that procedure was what the City’s development policy had previously directed staff to do.  

Commissioner Hack said she agreed that those types of in-fill project were unique and the Commission did want to support those types of projects, to the extent they could, because those projects were creative and innovative.  She said she hoped the Commission could receive options that both sides could live with.  She said she was not at zero percent participation, but she was not at 90 either.

Mayor Highberger said he thought it was a great project and he wished Minder the best of luck, but he had not found the rationale for making an exception that would not cost the City millions of dollars over the next 10 or 20 years.  The Tenants to Homeowners project on 3^rd Street was to benefit properties that would be land trusted and permitted affordable housing.  He said there were great benefits to cooperative living and co-housing, but he could not see large scale City participation.  He said the Commission would be having discussions about sidewalks and they might decide that there should be City participation in sidewalks and he was certainly willing to participate in those sidewalks, but otherwise he could not support this project.  However, he said he would support the creation of the special benefit district.

Commissioner Schauner said he had spoken out a number of times about spending unbudgeted money to put CIP project, one project in front of others.  He said this would be a great project if they had adopted a neighborhood revitalization area as permitted by statute.  If the number were right in going from $455,000 to $3.35 million the tax revenue benefit to the City was substantial.  He said this ground had sat vacant for a long time and for Minder and his co-workers to hang in there for 5 or 6 years was terrific.  He said the developers of this project were different than those people who did development for a living. 

The Pennsylvania project was going to come to the City for participation apparently by people who did this for a living.  He said those people were in a different category of a requestor for city-at-large participation than this project.  He said he would like to find a way to provide some assistance to this project.  This project deserved to be rewarded and to encourage others to do similar types of projects in the City’s more difficult to in-fill areas.  He said this struck him as the kind of individual initiative that much of this community would benefit substantially from. He said he was somewhere in the 25-30 percent participation area to provide them with city-at-large assistance.  He asked the City Commission to give this issue serious consideration for something more than zero and something in the area of 25-30 percent participation.

Commissioner Rundle said he appreciated the suggestion of coming back with some options.  He said he was reminded that they had discussed trying to use the incremental taxes on some project that was adjacent to an existing neighborhood such as East Lawrence which would be a true benefit to that neighborhood, but he did not know if this project fit the mold that the City Commission had discussed.  He said getting this project underway would get that revenue stream generated.  He said he would have been more persuaded if Minder would have indicated that this approval was necessary to make the project go, but he thought there was some basis for some City support.       

Commissioner Schauner said this project and conversation reinvigorated his interest in getting a neighborhood revitalization program put together.  If the City had a program like that then this was the kind of project which would fit nicely into the public purpose that those revitalization areas were supposed to promote and would probably save the developers more money than the cost of those improvements over time.  The project that he had seen the neighborhood revitalization act project could abate up to 90% of the improvement in the property’s value.  He said 70% to 90% of the difference between $455,000 and $3.35 million as long as 10 years was a big chuck of money.

Mayor Highberger asked if Commissioner Schauner was referring to the value of the taxes.  He said he did not think they were talking about millions of dollars.       

Commissioner Hack said if they looked at that data even without the taxes, maybe that was a place to start in terms of conversation about those types of projects.  If they looked at value added to the community in terms the taxable property because it was in the same sense something they looked at with tax abatements.  If the cost benefit analysis indicated that it was better for them to help with a tax abatement then it was to not help that was good information to have.  She said she thought that would be a good idea to at least use that thinking in some of the calculations of some opportunities to explore.

Commissioner Rundle asked if it was too late to identify this project as a revitalization area.

Corliss said he could look at the time provisions on the Kansas Neighborhood Revitalization Act.  He said staff had looked at that act in a number of different issues.   He said he did not think about that act for this project, but it might provide some additional information of interest to the City Commission.  He said he would look at the timeframe and get the City Commission some additional information.  He said he and Ed Mullins, Finance Director, could easily come up with something that would give some idea of what the property tax rebate would be per taxing jurisdiction based on the figures that Minder had provided and the City Commission could get an idea of the possibilities of that program whether or not it would work for this project or not.    

Vice Mayor Amyx asked for information regarding the percentage and use of Minder’s build out appraisal and what the City would realize in tax benefit. 

Corliss said one of the things they could do concurrently was to publish the resolution establishing the public hearing date and then at that public hearing date, the only change would be the City Commission’s direction on any city-at-large participation.   The rest of the benefit district property that was in that benefit district would be just the property that the Delaware Street Common’s project owned. The scope of the improvements was identified with those three items, sidewalks, sanitary sewer, and storm sewer.  The City Commission would then need to give staff direction on city-at-large participation.

Commissioner Schauner said he had received an email from Tenants to Homeowner’s expressing a concern about a lot that they had purchased on the north end of that area.

Minder said the entire PRD (Planned Residential Development) included 3 properties, Delaware Street Commons, Tenants to Homeowners and a lot that they had a contract sale on.  The Tenants to Homeowners lot was to be developed in Phase 2, a future phase by Tenants to Homeowners as affordable housing.  He said he understood that they would like to place that lot into the land trust concept.  He said the sanitary sewer and stormwater improvement that extended down 13^th Street to the Oregon Street drainage were improvements that only benefited Delaware Street Commons. The topography was such that it was not benefiting Tenants to Homeowner’s and they were not proposing that they be included.  However, the sidewalk went all around the PRD and that would be a benefit to Tenants to Homeowners project and they proposed including that in their proposed benefit district of Delaware Street Commons, but their residents would not participate in the benefit district, but they would benefit.

Commissioner Schauner said he would like Minder to provide Corliss any copies of official bids that he had received and any estimates on as built, valuations, or any other information that would be instrumental in substantiating his comments.

Minder said he could provide the appraisal that the bank was using and also their builder would have bids completed on March 1^st.  He said they could provide the breakout for those public improvements by March 3^rd.  He said he knew the practice with the City was to participate in doing their own bidding, but their builder was bidding this project as hard as anybody was going to bid anything.  He said he was not sure spending a lot of time and resources bidding this project was going to find anything less than they would receive with their bidder.

Mike Wildgen, City Manager, said it was public money when financing it and the City had a bid procedure that staff typically followed.

Commissioner Schauner said he just wanted staff to do due diligence on the numbers.

Wildgen said the City took bids every week this spring so staff would have some comparisons.

Moved by Schauner, seconded by Hack, to direct staff to set a hearing date for creation of a special assessment benefit district for the Delaware Commons project, the area generally bordered by Delaware Street, 13^th Street and 12^th Street.  Motion carried unanimously.

(25)

Receive update on proposed Phase II of the Clinton Water Treatment Plant Expansion

Mike Orth, Black & Veatch, presented the update.  He said the project budget was as follows:

•           Construction Cost Estimates - $13,710,000

•           Engineering, Legal, and Admin Costs - $1,750,000

•           Opinion of Probable Project Cost - $15,460,000

•           Approximately 50% Greater than Master Plan   

            30% Attributable to Inflation

            20% Attributable to Reliability Improvements.

He informed the City Commission of the project schedule which was.

•           Delayed one Year from Master Plan Recommendation

•           Water Demand had not matched projections

•           Allowed time for full evaluation of improvements.

Commissioner Schauner asked if the fact that the City Commission would delay this expansion for a year meant that they had more money in their utility fund with which to pay more cash and therefore decrease the amount of any bonds.  

Mike Wildgen, City Manager, said the source funding was a combination of cash and debt and staff had anticipated issuing debt on the majority of the project.  Certainly, by delaying the project they should be able to build up more cash, but there were a couple of other projects that were bouncing around out there and looked liked those projects would be pulled ahead such as Pump Station 16. That gap would help with other projects before they started this project.    

Vice Mayor Amyx said he would like to see some sort of a fund balance summary and what staff anticipated that balance would be used for. 

Wildgen said staff prepared that summary for this project because they saw those numbers going up and staff wanted to make sure that they could finance this project over the same period of time. 

Vice Mayor Amyx asked if Wildgen anticipated that the entire $15 million for this project was going to be debt financed.

Wildgen said he believed most of the project would be financed with debt.  He said Black & Veatch’s design contract would come before the City Commission soon.

Commissioner Schauner said concerning fund balances and the Utility Department, it would be helpful to not just have those balances, but a list of those projects they anticipated having to do.

Wildgen said staff had that information.  That information was part of the water rate study and master plan.

Moved by Hack, seconded by Amyx, to authorize staff to proceed with the Final Design work.  Motion carried unanimously.                                                                                           (26)

The City Commission recessed for 10 minutes

Receive status report on Kasold Drive, Bob Billings Parkway to West  22^nd Street, Street, Storm Sewer, Waterline Improvements. 

Chuck Soules, Public Works Director, presented the staff report.  He said plans were completed and staff was ready to proceed to set a bid date for Kasold Drive.    

He said staff had been working with the residents to obtain temporary construction easements. 

As far as utilities, the waterline was included in the project and phone and cable were complete with their relocations and Westar had a large steel pole that needed assembled at the corner of 15^th and Bob Billings Parkway which should be done in the next couple of weeks. 

Staff had discussions with Aquila about a completion date of April 14^th and there were no sanitary sewer issues.  

Soules then reviewed the following project schedule:

February 21	City Commission sets bid date of March 14. Funding resolution. Ordinance establishing City policy on maintenance of sidewalk and retaining wall.
March 8	Pre-Construction Meeting
March 14	Bid Opening
March 28	City Commission considers bids.
May 1	Notice To Proceed issued.
Phase 1	Construct temporary crossover at north and south end.  Install waterline along frontage road.  This phase should take approximately 4-6 months.
Phase II	Move traffic to the west side (southbound lanes), complete waterline on east side, and reconstruct the northbound lanes (east side).  This phase will take approximately 6 months.
Phase III	Construction of the medians should take approximately 6-8 weeks.
Phase IV	Construction of the west side (south bound lanes), sidewalk and retaining walls.  This phase should take approximately 6 months.
September 1, 2007	Completion date

He said Kasold was a major arterial street and the standard was to charge liquidated damages for each day whether it was calendar working days or past the completion date that a contractor did not finish their work.  He said staff had discussed providing an incentive to encourage early completion of the projects.     

He said Hy-vee Grocery suggested that it was a substantial cost to close Kasold for their business and staff arranged the traffic control so they could keep one lane open in each direction.  Kasold was a main artery in this community and if the Commission desired, staff could use incentives to encourage an early completion date.   He said staff was recommending a $2,000 a day incentive with a maximum of $100,000.  If the contractor finished late, then there would be liquidated damages of an equal amount.

Staff recommended 4 actions which were:

1. Approval of plans for the reconstruction of Kasold Drive from Bob Billings Parkway (15^th Street) to W. 22^nd Street.

2. Adopt funding Resolution No. 6630.

3. Adopt Ordinance No. 7978 establishing City policy on maintenance of sidewalk and retaining wall.

4. Establish bid date of March 14, 2006 at 2:00 p.m.

Mayor Highberger called for public comment.

Jack Rose, Lawrence, said he appreciated the fact that the Commission agreed to keep one lane open each way. 

Vice Mayor Amyx said keeping Kasold open during the construction period would help those businesses in that area.  He said he was ready to move on with this project.   

Commissioner Schauner asked Rose and his neighbors to inform the Commission if there was an abundance of traffic on streets in their neighborhood involving cut-through traffic.  

Commissioner Rundle said he added up all the timing of the phases and he came with 26 weeks, but from May 2006 to September 2007 was approximately 66 weeks.   

Soules said those phases should have added up to 4 to 6 months instead of weeks.

Moved by Schauner, seconded by Hack, to approve the plans for the reconstruction of Kasold Drive from Bob Billings Parkway (15^th Street) to West 22^nd Street.  Motion carried unanimously.                                                                                                                                     (27) 

Moved by Schauner, seconded by Hack, to adopt Resolution No. 6630, ordering the improvement and authorizing the issuance of general obligation bonds for certain main trafficway improvements including, but not limited to milling, overlay, curbing, guttering, paving, acquiring rights-of-way and easements, sidewalk and pedestrian path construction, installation of traffic control devices, including signs, signals, cabinets, controllers and related equipment, and all related design, engineering and inspection work.  Motion carried unanimously.                 (28)

Moved by Schauner, seconded by Hack, to place on first reading, Ordinance No. 7978, establishing City policy on maintenance of sidewalk and retaining wall.  Motion carried unanimously.                                                                                                                                         (29)

Moved by Schauner, seconded by            Hack, to set a bid date of March 14, 2006 at 2:00 p.m., for Kasold Drive from Bob Billings Parkway (15^th Street) to West 22^nd Street.  Motion carried unanimously.                                                                                                                    (30)

Receive staff report concerning implementation of “2^nd Generation Parks and Recreation Facilities.” 

Mike Wildgen, City Manager, presented the staff report.  He said staff wanted to bring forward this set of Capital Improvement Projects that were in the 2006 Budget under the Capital Improvement portion.  The first 6 projects listed in that plan were related to the City’s Parks and Recreation Master Plan; the fifth project, Two Rivers Trail, was related to the matching of a TE Grant; and projects 7 through 10 were long-term maintenance projects such as the skate board facility that the Mayor had interest in for some time.  He said the bonds for the outdoor pool were paid off and the concept was to use that same capacity for another bond issue.  Those were general obligation bonds, but were paid with sales tax revenues and it should not have an affect on the mill levy because it was a separate way to fund those projects.  

Vice Mayor Amyx asked if there was a sunset clause on the sales tax provisions.

Wildgen said no.

Commissioner Rundle said the total of $2,440,000 would be bonded and asked about the annual payment.

Wildgen said in using $2,000,000 the annual payment would be approximately $240,000 a year.

Commissioner Rundle said the revenue exceeded that amount by quite a bit.  He asked if that was the amount that would be freed up.

Wildgen said that was the concept.  He said this year there was another portion of a larger bond issue that would be paid off and he did not have those numbers, but he believed they were in the range of a half million dollars a year.  He said that was a separate bond issue and it was a portion of the Aquatic Center and the Softball Complex.  He said there would be a reduction going into 2007 based on that being paid off this year.      

Commissioner Schauner asked when the half million dollars of payment would become available.

Wildgen said it would be in 2007 because this was the last year in 2006 that the payment would be made.

Commissioner Schauner asked what that the half million dollar payment amounted to in terms of bonded indebtedness.

Wildgen said probably in the range of 4 to 5 million.

Susan Chai said she was a resident that lived in the West Lawrence neighborhood where part of that proposal was to build a green belt trail and a small park in that area.  She said they were pleased last year when the City Commission voted in favor of the concept of the park and the green belt area.   A lot of work went into that concept and they were really excited about that project and hoped the City Commission would support that project.   

Steve Braswell, Pinckney Neighborhood Association, said he was pleased to see that this issue was moving forward regarding expanding City parks.  He said those parks would be a public asset that he thought deserved the City’s support.  He said Clinton Park was very deserving of support, but it was a little different in that it was on the original plat of the City of Lawrence.  He said he was present to express their desire that the City Commission support this project.             

Paula Pepin, West Lawrence Neighborhood Association, said the small area of the park would serve a large area.  She said Lawrence was not about gated parks, private pools, or gated communities, but about public spaces and public places for people to gather.  

Nancy Yost, Lawrence, said as a new resident to Lawrence, she loved the parks.  She said in looking at the proposal there needed to be some serious reconsideration of the walking path and send the path down the middle to make maximum use of what was there.  She said by holding off the project for reevaluation, it provided a couple of benefits.  One there could be more representation from new residents who never had a voice throughout this planning process and two, there was going to be a change in terrain and the City might need to reroute paths in the future which would be expensive.  She said it was a wonderful plan and the Langston Hughes area park was needed, but they needed to rethink where those walkways would be placed.    

Raquel Alexander, Lawrence, spoke in support of the proposed greenspace and the proposal before the City Commission.  She was a resident of a neighborhood that was very near the Langston Hughes Elementary School and near the park and was very supportive of that park to have as a safe place to play.  However, she requested that the City Commission consider the nature trail separately and decouple that nature trail decision from that overall funding decision for the parks.  The neighborhood met with the Parks Department, but it was before their side of the neighborhood was developed.  Stonecreek side of that greenbelt had been developed and those residents had an opportunity to meet in 2004. The homes in their neighborhood had not even begun in 2004 and frankly, most of those were lots at this point.  She said they had no opportunity to provide input on the location of the trail.  Furthermore as a citizen and a taxpayer in Lawrence, she would like to see some type of economic analysis that compared the cost of the nature trail location and which side it was more advantageous on economically, to have it done on the Stonecreek side in which the development was already done and the drainage was well established or on the Waverly side in which development still continued and the drainage had not been as well established.  As you know building was going to continue on that side for at least several years from now and the issue of drainage revolving as contractors came in and excavated and also come in and do fill.   She said it was premature to make a decision about the nature trail at this juncture.  She recognized that this was a classic case of “not in my back yard,” however, if the City and the Parks Department was committed to having input from the citizens they should include those citizens who were going to have the nature trail in their backyard.                

Mark O’Lear, Lawrence, spoke in support of proceeding with the greenbelt park.  He said he was in favor of the nature part of this project as well.  He said the area outside of Langston Hughes was a neat concept for the neighborhood.      

Alan Cowles, West Lawrence Neighborhood Association, said this was the most popular project in their area.  He said there were a few neighbors that the park would back up to their walkway and were understandably anxious.  He said the way to take care of this was to take their anxiety seriously and make sure those areas were done well.  The minimum size of the dedicated area for the walkway was 100 feet in width and the back yards were wide too.  In addition, the walkways would be relatively down in and there was a considerable amount of separation between the homes and that area and walkway.  He said Doug Stephens, a person that had a lot of experience with this type of issue, said that the people who tend to object to this concept, eventually come around to like that concept. 

He said by far the greater good would be to go ahead with this project as soon as possible because there were hundreds of homes in this area and it was the only park and walkway area of this size that far out on the west side of Lawrence.  He said this parks area would also be good for business.  He said this would eventually be able to tie in to that long walkway which parallels K-10 on the southwest side of Lawrence and all together that would make a marvelous set of walkways.  Again, he said this was the most popular project and one that the City Commission could be remembered by.

Mayor Highberger asked what stage was the design work for that park.

Fred DeVictor, Director of Parks & Recreation, said part of their interest in this particular park was to preserve as much of that open space as possible.  What had been done was a conceptual plan and had not been engineered.  That would be one of the first things they would do was to enter into contracts with engineers to specifically look at the type of terrain and how wide a trail could be and where those trails would go and they would intend to have public input in that process.  He said this was Phase 1 of this project and he could not say that they could get all the trails in all the way around that greenbelt area, but they would go as far as the money would take them.     

Vice Mayor Amyx said there were a lot of wonderful ideas with those second generation parks, but he said at this time, he simply wanted to receive the report.  The reason was because of the list of other things the City Commission had at this time.  He said the City Commission needed to have discussion about priorities.  He was not ready to direct staff to implement this entire program knowing other needs of this community.    

Mayor Highberger said he certainly understood Vice Mayor Amyx’s concerns about projects.  However, this was one of the priority justifications for implementation of sales tax.  He said the City had a great park system, but maintaining the greatness of that park system was crucial to maintain for the quality of life.  There had been a reasonable effort for selecting those projects.  He said he hoped for the future that the City’s adequate public facilities discussion would identify funding for parks facilities for a new development which he hoped would free up some of that money for other uses.  In the meantime, he would like to direct staff to proceed.

He said he understood the concerns about the trail, but there was still time for public input.  Again, he supported moving forward with that part of the system and it would be a great amenity not only for the people in the area, but others.  He said after initial opposition, people tended to like those types of things and he thought they would see the same type of situation with the Burroughs Creek Rail Trail in the eastern part of town.  He said he would like to move forward at this time.  

Commissioner Hack agreed with the Mayor and his assessment in terms of the design.  She also agreed with the Vice Mayor that the City Commission would have a list of things to do.  She said when the sales tax was voted on to fund Parks and Recreation, the jail, the mental health facility, and property tax relief, that was on the ballot and that was what people voted for.  She said she truly believed that this was the way they needed to go as a community and have the parks protect and enhance the City’s park system.

Commissioner Rundle said he had a folder of the promotional materials and the language was broader because the phrase of “or any public purpose.”  He said the projects that the City was working on were developed after the ballot was initiated.  He thought they needed to prioritize and he was probably the most optimistic commissioner in terms of being able to do more within the same resources that they had up to recent events when they started to see the looming infrastructure needs that the City would be facing.  He said he thought the greenbelt park was the top priority of this list because that area of town had so little amenities of that type.  He said he wanted to proceed, but not necessarily full speed ahead on this list of projects.  Certainly when it came to allocating that money that would be freed up in the next series of bonds that would be paid and he thought they would need to put that into a larger context of where it was going to be applied.        

Commissioner Schauner said he lived out west and it struck him that people were buying $200,000 plus houses West of Wakarusa where all the new houses were being built and there were no amenities.  He said he thought there needed to be another way to acquire that land than simply using sales tax dollars to acquire it. He said the ring park was his top priority because of the lack of public park amenities in that part of town.  He said he had a concern about the safety of children coming and going from the east side of George Williams Way to the west side because of that traffic in that area.  He suggested that Parks and Recreation staff visit with the school district about how to make that crosswalk safer.  He said the ballot initiative for the sales tax did provide for a broader use of that money than just Parks and Recreation.  He said not to diminish the importance of Parks and Recreation, but Parks and Recreation was one of the important community cultural assets that they had a need to fund and protect. 

If this item was approved in some form, he would like the message from the City Commission to be that they would not consider that 1% sales tax to be for Parks and Recreation forever.  There were other uses that the community had and Parks and Recreation, though it was important, was not always the number one priority.  He said he was not excited about going ahead and doing every one of those projects and committing the $2.4 million dollars.  He said at a minimum he would like to delete the open space acquisition until they had better information on the City’s adequate public facilities report and perhaps find another way to acquire that ground in the future.  He said the idea of acquiring that land should be more of a long term plan.

Commissioner Hack said as they did the planning for the west of the SLT, she assumed that one of the components of that plan would be park land.  She said there were places to go and certainly the Nature Trail was among those places to go, but it seemed that should be part of that plan.  She said the problem with waiting on acquiring land was that land should be acquired before it became valuable which required thinking into the future.

She said she did not want to spend the time going through each one of those projects they agreed with or did not agree with, but she suggested having further conversation with staff to clarify their feelings about those projects rather than having a thumbs up or thumbs down on each one.   

Student Commissioner Frei said his home backs up to Wakarusa Street and with the lack of parks in the area it was a valuable asset to have greenspace in that area.  He thought the City Commission should take action to get the boat rowing. 

Mayor Highberger said he did not sense a majority in favor of directing staff to proceed.

Vice Mayor Amyx said if those parks and improvement to those parks were the number one item for Lawrence, those parks should be done, but when he considered the problem Lawrence was having with the sewer system, then parks should not be the number one item.     

Mayor Highberger said sewer systems were not financed out of sales and property tax revenues.

Vice Mayor Amyx said money the City had available at this time should be considered all on the table.

Commissioner Hack said there were several different tiers and some of those were maintenance to existing parks.  She said they certainly did not want to loose what parks they had and it did not make any sense to not protect the City’s investment.  She said she agreed that the greenbelt park was a huge priority because it was around a grade school, in an area that did not have a park and a growing area.  She said receiving more information on the details would help the City Commission make decisions.  

Mayor Highberger asked Commissioner Rundle to elaborate on his comment about moving forward, but not full speed ahead.

Commissioner Rundle said he was confused because some of those items he did not find in the CIP.  He said it seemed to be an additional $500,000.  He said to the extent that this item was approved as part of the City’s 2006 budget process, he thought there was a similarly implied commitment.  He said that pushed him to want to proceed on those that were clearly approved in the budget process.

Wildgen said those projects had come up in further evaluation of the infrastructure that the City had such as the skate board facility.    

Commissioner Hack said Commissioner Rundle was correct that if some of those projects were part of the CIP then the approval of the CIP would indicate to move forward with those projects made sense.

Commissioner Rundle said he would put the park and open space acquisition on hold because of the discussion with ECO² before they duplicated those efforts. 

He said the Two Rivers Trails was something they needed to move forward. 

Commissioner Schauner said they had a long and growing list of projects.  He said it would be an easier decision if they had a more complete list of those things which would be facing the City Commission whether they were capital projects with long term bonding requirements, or shorter term projects that would be paid for with cash.  He said he was not opposed to moving forward with the first five projects on the CIP.  He said as the City Commission began to discuss the 2007 budget or perhaps even before that budget discussion, it would be helpful to have a more complete detailed projection and analysis of what their long term expenses and costs were going to be.       

Vice Mayor Amyx suggested that staff provide a general account of everything the City had to take care of those maintenance problems would be helpful.

Mayor Highberger said with regard to the park and open space acquisition, it was basically a place holder.  He said one thing he thought was good about the plan as presented was that it spread the projects around the City well.  He said if they excluded some of those projects, then they would be cutting out big sections of town.  He said there would not be money spent in North Lawrence for instance.  He said his preference would be to direct staff to move ahead with this plan and he would make a motion to that effect.

Commissioner Rundle said he probably would support the motion, but he thought they needed to be much more conscious about where they acquired open space and not just having executive sessions about an opportunity that had came up that was not in the context of an already designated area they were trying to acquire.

Mayor Highberger agreed with Commissioner Rundle, but he also agreed with Commissioner Hack that acquiring space ahead of development, they could acquire more property.  He said he would like to see the City continue to acquire property, but not build all their planning around specific sites.          

Commissioner Schauner said he was going to vote against the motion, but not because he was against those first five items, but because those projects had been discussed and were approved in the CIP. 

Commissioner Rundle said the estimated costs stated that based on previous projects and they just received a report that stated that the cost for the water treatment plant had suddenly gone up because of the Katrina effect and cost of materials.  He said he thought they needed to have a better handle on the costs of those proposed projects before he moved ahead.   

Moved by Highberger, seconded by Hack           , to direct staff to proceed with implementation of the plan presented by staff.  Aye:  Hack and Highberger.  Nay:  Amyx, Rundle, and Schauner.  Motion failed.

Moved by Schauner, seconded by Rundle to move forward with projects listed as 1-6 on the CIP Projects List.  Aye: Schauner, Rundle, and Amyx.  Nay: Highberger and Hack.  Motion carried.                                                                                                                       (31)

Mayor Highberber said there were some very serious needs identified in the last four items. 

Wildgen said they would attack those projects as revenue was available.

Mayor Highberger said he was surprised that deferred maintenance was not a priority.

Commissioner Hack said she hoped that staff would give the City Commission additional information on projects 7-10.    

PUBLIC COMMENT

Steve Braswell said Mark Hecker, Parks and Recreation, had worked with Pinckney neighborhood in coming up with the plans for Clinton Park.  He also thanked the City Commission for working with the neighborhood on the HOP area plan. 

Patricia Sinclair, Lawrence, said last week the Mayor had mentioned about her concern about the Woods development.  She said there was an item that came to the Planning Commission and they deferred that item to get a legal opinion in which they would be voting on tomorrow.

She was told that there would be a full review of this project and she was asking to be included to the extent that she could because she had a deep knowledge of the subject of The Woods Development.  She said the item before the Planning Commission struck her as bizarre that The Woods LLC was asking for their escrow funds back that were kept aside to build a pedestrian bridge over Burroughs Creek to the dead end of Johnson Avenue.  She said this project came to the Planning Commission in March 2003 and then in May the City Commission saw the final plan and accepted the easements and rights-of-way in June 2003.  She said it was not clear to her what happened after June and also what their options were.

Consider a motion to recess into executive session for 15 minutes the purpose of consultation with attorneys for the City for matters privileged under the attorney-client relationship. The justification for the executive session is keep confidential matters privileged under the attorney-client relationship. The regular session of the Commission will resume in the Commission meeting room.

Moved by Schauner, seconded by            Rundle, to recess into executive session at 10:00 p.m. for 15 minutes the purpose of consultation with attorneys for the City for matters privileged under the attorney-client relationship with the justification for the executive session to keep confidential matters privileged under the attorney-client relationship.  Motion carried unanimously.                                                                                                                                (32)

Moved by Schauner, seconded by Rundle, to extend the meeting to 10:20 p.m. Motion carried unanimously.     

The Commission returned to regular session at 10:15. 

Moved by Schauner, seconded by Amyx to adjourn at 10:20.  Motion carried unanimously.   

APPROVED:

_____________________________

Dennis Highberger, Mayor

ATTEST:

___________________________________                                                                        

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF FEBRUARY 21, 2006

1. Farm Lease Agreement – Kitsmiller for $76/acre/yr. for approx 55 acres, adjacent to Wastewater Treatment Plant.

2. Bid Date Set – 2006 Overlay Program, Phase 1, March 7, 2006.

3. Sole Bid – Towing service to Hillcrest Wrecker for $38,180.

4. Ordinance No. 7977 – 2^nd Read, allow alcoholic beverages for Mad Greek sidewalk dining.

5. Ordinance No. 7964 –  2^nd Read, Rezone (Z-10-75-05A) .146 acre, C-5 to RO-1A, 705 Arkansas.

6. Ordinance No. 7965 – 2^nd Read, Rezone (Z-10-68-05) 2.458 acres, C-5 to RM-2, between W 6^th & W 7^th, E of Iowa.

7. Ordinance No. 7966 – 2^nd Read, Rezone (Z-10-70-05) 1.60 acres from RM-2 to RO-1A, W 6^th & W 7^th, E of Wisconsin.

8. Ordinance No. 7967 – 2^nd Read, Rezone – (Z-10-71-05) 2.27 acres  RM-2 to RO-1, N of W 7^th, W of Florida.

9. Ordinance No. 7968 – Rezone, (Z-10-73-05) .58 acre from RM-3 to RS-2,  N or intersection of W 8^th & Avalon.

10. Ordinance No. 7969 – Rezone, (Z-10-74-05) .84 acre from C-5 to RO-1, NE corner of Florida & W 7^th.

11. Ordinance No. 7970 – Rezone, (Z-10-76-05) 3.0 acres from C-5 to RM-3, SE corner of W 7^th & Lynch Ct.

12. Ordinance No. 7971 – Rezone, (Z-10-77-05) .51 acre from C-5 to RO-2, SW corner of Michigan & W 7^th.

13. Ordinance No. 7976 – 2^nd Read, making illegal certain weapons in close proximity to drinking establishments.

14. RFP – Coordinated Public Transportation Plan, conjunction with K.U. 

15. Site Plan – (SP-10-72-04) 1 yr extension for new church, SW corner of W 6^th & Branchwood Dr. (7^th Day Adventist)

16. Site Plan – (SP-01-08-06) 42 units single family residential, 2221 Lake Pointe Dr.

17. Site Plan – (SP-11-94-05) addition to Central Jr. H.S., 1400 Mass.

18. Rezone – (Z-06-39-05) 12.329 acres, I-1 & A to RM-2, S of E 23^rd/K-10 Hwy between O’Connell & Franklin.

19. Rezone – (Z-06-41-05) 17.889 acres, I-1 & A to M-1, S of E 23^rd/K-10 Hwy between O’Connell & Franklin.

20.  Rezone – (Z-06-42-05) 28.833 acres from B-1 to I-1 & A to C-5, S of E 23^rd/K-10 Hwy between O’Connell & Franklin.

21.  City Manager’s Report.

22. Rezone – (Z-12-78-05) 8.19 acres, RS-2 to RM-3, N of Harvard & E of George Williams Way.

23. Rezone – (Z-10-67-05) 2.15 acres, RM-2 to RS-2, N or W 6^th between Wisconsin & Michigan.

24. Final Plat – (PF-11-43-05) Cypress Park Add, 2.29 acres, 1801 Learnard Ave.

25. Benefit District – Delaware Common project.

26. Final Design – Clinton Water Treatment Plant Expansion.

27. Reconstruction Plans – Kasold from Bob Billings Pkwy t W 22^nd.

28. Resolution No. 6630 – GOB, main trafficway.

29. Ordinance No. 7978 – 1^st Read, Policy Maintenance of sidewalk & retaining wall. 

30. Bid Date Set – Kasold Dr form Bob Billings Pkwy to W 22^nd.

31. 2^nd Generation Parks & Rec Facilities.

32. Executive Session.