April 18, 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 Amyx presiding and members Highberger, Hack, Rundle, and Schauner present.
RECOGNITION/PROCLAMATION/PRESENTATION
With Commission approval Mayor Amyx proclaimed the week of April 17 – 23, 2006, as “National Community Development Week”; and the week of April 23 – 29, 2006 as “National Volunteer Week in Lawrence.”
CONSENT AGENDA
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve City Commission meeting minutes from April 4, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to receive the Aviation Advisory Board meeting minutes of December 15, 2005; the Parks & Recreation Advisory Board meeting of March 14, 2006; the Public Health Board Meeting of February 20, 2006; and the Traffic Safety Commission meeting of April 3, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve claims to 331 vendors in the amount of $1,559,802.90 and payroll from April 2, 2006 to April 15, 2006 in the amount of $1,541,079.06. Motion carried unanimously.
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve the Drinking Establishment Licenses for Chipotle Mexican Grill, 911 Massachusetts; 75th Street Brewery, 3512 Clinton Parkway; Jade Mongolian Barbeque, 1511 West 23rd; and Buffalo Bob’s Smokehouse, 719 Massachusetts. Motion carried unanimously. As part of the consent agenda, it was moved by Hack, seconded by Schauner, to concur with the recommendation of the Mayor and reappoint Frank Lewis to the Board of Plumbers and Pipefitters, to a second term which will expire April 30, 2009; reappoint Bonnie Lowe and Willie Amison to the Douglas County Community Corrections Advisory Board, to additional terms which will expire May 31, 2008; reappoint Bonnie Lowe to the Mental Health Board, to a term which will expire April 30, 2010; reappoint David Kingsley to the Special Alcohol Fund Advisory Board to a term which will expire April 30, 2009; and appoint Jim Woods and reappoint John J. Ziegelmeyer, to the Traffic Safety Commission to a term which will expire April 30, 2009. Motion carried unanimously.
The City Commission reviewed the bids for the 2006 Overlay and Curb Repair Program Phase 2 for the Public Works Department. The bids were:
BIDDER BID AMOUNT
Engineer’s Estimate $1,490,820.75
R.D. Johnson Excavating Co. $1,306,130.25
Kansas Heavy Construction, LLC $1,309,600.00
LRM Industries, Inc. $1,373,899.00
Miller Paving and Construction, LLC $1,706,204.55
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to award the bid to R.D. Johnson Excavating Co, in the amount of $1,306,130.25. Motion carried unanimously. (1)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to set a bid date of May 2, 2006, 2:00 p.m., for Kasold Drive and Peterson Road Traffic Signal Improvements Project. Motion carried unanimously. (2)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to place on first reading Ordinance No. 7989, authorizing the consumption and possession of alcoholic beverages at Eagle Bend Golf Course on Friday, May 5, for the Lawrence Chamber of Commerce Start Here Golf Tournament. Motion carried unanimously. (3)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to concur with the Traffic Safety Commission’s recommendation to establish “no parking” along the west side of Stewart Avenue from 19th Street, south 500 feet. Motion carried unanimously. (4)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to concur with the Traffic Safety Commission’s recommendation to establish “no parking” along the south side of 9th Street between Pennsylvania Street and New Jersey Street. Motion carried unanimously. (5)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to place on first reading Ordinance No. 7992, establishing “no parking” along the west side of Stewart Avenue from 19th Street, south 500 feet, and establishing “no parking” along the south side of 9th Street between Pennsylvania Street and New Jersey Street. Motion carried unanimously. (6)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to adopt Resolution No. 6643, authorizing the issuance of General Obligation Bonds in the amount of $700,000 for certain main trafficway improvements. Motion carried unanimously. (7)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve a Temporary Use Permit Upon Review (TUPR-04-07-06) for a Motorcycle Show at Slow Ride Road House, 1350 North 3rd Street, scheduled for June 10, 2006 from 11:00 a.m. to 3:00 p.m., subject to the following conditions:
1. Temporary sign permit must be obtained from Neighborhood Resources Office, if temporary signs are used;
2. If signs are displayed in conjunction with this use they shall comply with City sign regulations and shall not be located on public right of way. Signs for this activity can only be displayed during hours of operation;
3. Display area or tent may not be within 25’ of public right-of-way.
4. Tent must be certified flame retardant.
5. A 2A1OBC portable fire extinguisher must be provided.
6. “No Smoking” signs must be posted and enforced.
7. Two exits must be provided as well as exit signs and emergency lighting if tents have walls (are not just canopies).
Motion carried unanimously. (8)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to authorize the Mayor to sign a Subordination Agreement for Retha Beebe, 2708 Rawhide Lane. Motion carried unanimously. (9)
As part of the consent agenda, it was moved by Hack, seconded by Schauner, to authorize the City Manager to execute project agreements for HPF 20-06-21519-004 for a Design Review Intern ($12,782) and HPF 20-06-21519-005 for Downtown Design Guidelines ($10,211). Motion carried unanimously. (10) The item concerning confirmation of the April 13, 2006 study session was pulled from the consent agenda by Vice Mayor Hack for clarification. She said this was a summary of the action items discussed at the study session. In the summary, under the Community Commission on Homelessness, it indicated that the CCH would review funding requests and issues (outside agencies, alcohol fund requests, related City budget items) and provide recommendations to the City Commission. She asked how deep the CCH assessments of funding requests would go.
David Corliss, Interim City Manager, said it would be helpful to clarify that the CCH would speak toward the funding request and issues related to homelessness and not all of the items that might come before the Alcohol Board, outside agency listings, or other City budget items and that could be made clearer in the summary so that it was clear that the Commission was not asking for recommendations on items that did not relate to homelessness. Mayor Amyx said the request from Margene Swarts, Community Development Manager, was to go through an inventory of all items that specifically dealt with homelessness needs.
Corliss suggested restating in the summary: “funding requests and issues related to homelessness.”
Moved by Hack seconded by Schauner, to confirm the April 13, 2006 study session staff directions with the clarifications made by staff. Motion carried unanimously. (11)
CITY MANAGER’S REPORT:
During the City Manager’s Report, Chuck Soules, Public Works Director, highlighted some of the work that had been accomplished to date on the Crack Sealing Program. The contractor, Vance Brothers, had completed Phase 1 which included the area east of Iowa Street and south of 15th Street. The contractor had used approximately 1/3 of the crack seal material. Therefore, additional streets would be crack sealed after Phase 2, which was anticipated to be completed before June.
In addition, City Street Department crews were also crack sealing streets such as the airport and areas on West 6th Street. Staff would continue to crack seal those streets as opportunities arose.
Mayor Amyx said when Soules explained the importance of crack sealing during the budget session, he was convinced that it was very important, from a maintenance standpoint, to make sure those streets were sealed which would save the City money in the long run.
Soules said staff was not only sealing cracks in the streets, but also those curbs and gutters which he thought would be further effective.
Commissioner Schauner asked if Soules intended to bring the City Commission a plan to carry further this improvement program as the Commission contemplated the 2007 budget. Soules said staff just forwarded to the Interim City Manager, staff’s plan for 2007 which included carrying on the Crack Sealing Program.
David Corliss, Interim City Manager, said it was staff’s hope to present a draft of that plan so the Commission could begin discussions on that issue during the budget study session. He said street maintenance for 2007 was going to be one of their major budget items and staff was looking at giving the City Commission multiple options and policy paths so the City could achieve the goal of improved street improvement.
Also, during the City Manager‘s Report, Corliss acknowledged and thanked Lynne Zollner, Historic Resources Administrator, for her work on the Historic Preservation Conference. In addition to all of Zollner’s other duties, she was serving as one of the hostesses for that important conference that was going to bring a lot of attention to Lawrence. He encouraged the Commissioners to attend the conference.
Zollner said information about the conference could be found at: visitlawrence.com. (12)
Mayor Amyx noted that for those people who did not generally attend City Commission meetings, public comment was allowed during discussion of regular agenda items. The protocol was to first be recognized by the Mayor, step up to the microphone, state your name and address, and address all comments and questions to the City Commission.
REGULAR AGENDA ITEMS:
Consider recommendation from the Traffic Safety Commission to install stop lines on each approach to the intersection of 9th Street and Connecticut Street. (Motion carried 5-2).
Chuck Soules, Director of Public Works, presented the staff report. He said on March 6th the Traffic Safety Commission heard a request to consider marking a crosswalk at the intersection of 9th and Connecticut Streets.
The Traffic Safety Commission considered the following facts:
1. Crosswalks are generally only marked at signalized intersections and at Official School Crossings;
2. The intersection of 9th Street and Connecticut Street is controlled by an ALL-WAY STOP;
3. Connecticut Street is a two-lane street and carries approximately 8000 vehicles per day.
4. A recent study of 2000 crosswalks in 30 cities across the country found that on a two-lane street, the crash rate at marked vs. unmarked crosswalks was identical.
5. A crosswalk can be marked at this intersection, but the justification used should be applied at similar intersections throughout the city.
After discussion, the Traffic Safety Commission moved to recommend to the City Commission the addition of stop bars at this intersection. That motion was carried 5-2 which was why this issue was brought before the City Commission for discussion and recommendations or approval.
Mayor Amyx asked if those stop bars would be placed behind a normal crosswalk area from where the sidewalk was located.
Soules said yes. The vehicle would stop as it approached the intersection, so the pedestrian way would not be obstructed. He said it would be approximately in the same location as those crosswalk bars.
Mayor Amyx asked that once the stop bars were put in place, did staff need to mark the crosswalks.
Soules said no. The TSC did not recommend marking the crosswalk independently because the stop bar would be in place.
Commissioner Schauner said if there was there was no statistical advantage to having a marked crosswalk on a two lane street like Connecticut, he asked what the advantage to a pedestrian was for adding a stop bar of.
Soules said either way, whether it was a stop bar or a crosswalk, it would not stop a vehicular accident. The Traffic Safety Commission concern was that children were typically under the impression that a crosswalk was safer than an unmarked crossing.
Commissioner Schauner said he was trying to understand how a painted line on the street provided any less false sense of security than a painted crosswalk.
Soules said since it was a marked crosswalk, pedestrians could proceed while vehicles stopped because it would be a four way stop. He said the stop bar was an area identified for vehicles to stop and then approach into the intersection.
Mayor Amyx asked if the design for the stop bars was for the protection of the pedestrian or to try and eliminate personal property loss to the accident of two vehicles.
Soules said the stop bar was to identify where the driver needed to stop before entering into the intersection which would be behind where the pedestrian would be stepping out into the trafficway.
Commissioner Rundle said he understood the purpose of the stop line was as an additional signal to the drivers.
Soules said absolutely.
Vice Mayor Hack asked if additional signage would be something to consider.
Soules said if a crosswalk was marked there would be advanced signage.
Mayor Amyx said with the school being on the east, he did not want to give anyone a false sense of security to think those vehicles would stop. He suggested there should be discussion about receiving more help to control that area.
Mayor Amyx called for public comment.
After receiving no public comment, Commissioner Schauner said he did not want to do something that would make it a less safe environment than what there was now. He said he did not have a sense of whether putting a stop line or stop bar at that location would make it better, worse, or just the same. He said he did not have any particular objection to a stop line.
Commissioner Highberger said, as someone who used the sidewalks in that area, he thought it was a good signal for drivers to stop. He said he was not absolutely convinced of the wrongness of using crosswalks. He said he would like to be consistent if crosswalks were used. He said the crosswalk at 11th Street was a concern because there were no stop signs. He supported the recommendation by the TSC.
Commissioner Hack said she would be interested in additional signage when approaching a pedestrian crosswalk. She agreed that she did not want to give anyone a false sense of security. The only thing that might work was a physical impediment for the car to go from point A to point B.
Commissioner Rundle said he did not know if people were aware that pedestrians have the right-of-way because the majority of drivers did not act like it. He said he did not know if the City’s traffic unit could place this issue as a higher priority of ticketing people who did not yield the right-of-way to pedestrians. He said in other states where there was a high level of enforcement, people did get the message and stopped for pedestrians. He said that it was an uphill battle changing such a pervasive behavior.
Mayor Amyx said people used Connecticut and 9th Streets as a north/south roadway to get to the east side of town. He said those streets were becoming major collector roads to the east side. The four way stop at 9th and Connecticut had been in that location for a long time. Anything that could be done to indicate to drivers where they needed to stop would not hurt. People needed to recognize what that road has turned into and those stop lines were a way to address that issue.
Moved by Schauner, seconded by Hack, to approve the recommendation to install stop lines at 9th and Connecticut Streets. Motion carried unanimously. (13)
Receive staff report concerning evaluation process for the responses to the Request for Proposals for the possible expansion of the Lawrence Public Library.
David Corliss, Interim City Manager, presented the staff report. He said Bruce Flanders, Director, Lawrence Public Library and Steve Clark form Gould Evans Architect who was serving as the lead consultant, would help determine how best to proceed with considering possible improvements or relocation of the library in the downtown area
He said a Request for Proposals had been sent to hopeful submissions that would allow the development community to provide their views in potential projects for the possible expansion of the library. The deadline for the RFP submissions was May 4th. Staff had met last week to discuss the evaluation process after the receipt of those proposals and recommended that an evaluation team be established that would help staff determine the pros and cons of the various proposals, better articulate the goals of the process, and identify issues that would come up with the review of the proposals. As the City Commission reviewed those proposals, the Commission would have the benefit of the views of the evaluation team.
He said concerning the membership of the evaluation team, he expressed the need to have one or two of the City Commissioners on that evaluation team. He said the role of the evaluation team was not to have the evaluation team make a recommendation, stating that this was the winning proposal, but to give good articulation of the pros and cons, advantages and disadvantages, and possible issues with a number of different proposals so that those issues could be honed and focus the discussion.
He said he anticipated that there would be extensive and rigorous discussion with any of the developers or even if it was decided to not use a developer and go on their own as far as further honing the project. He said this evaluation process would allow the project to keep moving forward and allowed for late Spring and early Summer focus on the next path the City Commission wanted to proceed with on this project.
Bruce Flanders, Library Director, said Corliss’ comments were a good summary of the recommended process.
Corliss said that it would be helpful to start planning the study session and that could be done now or under calendar items. He said late Spring and summertime was a calendar challenged time for Commissioners. Staff wanted to allocate an initial time that would work for all of the Commissioners to give the City Commission an opportunity to hear those proposals and hear the evaluation team’s comments.
Commissioner Schauner said he had not heard any discussion about private fundraising as a component of this project. He said the Topeka model raised a substantial amount of money and that was followed on by a public vote concerning the level of general obligation bonds to pay the remaining balance of the project. He said as part of this process, he would like to have some discussion on putting together a group of influential citizens who could put together a drive to raise private money that would defer some of the public expense on this project. He said he would like to see public support in this project besides the five of them or the other people who had been involved in this project to date. He said this might not be the appropriate time to have that discussion in detail, but he would like to raise the issue for future discussion.
Vice Mayor Hack asked if he was thinking about something similar to the Arts Center.
Commissioner Schauner said yes.
Commissioner Schauner asked if he missed any discussion about that private fundraising effort.
Flanders said there had been some limited discussion about private fundraising effort by the New Direction Task Force. He said there had been more discussion among the Lawrence Public Library Foundation Board of Directors. There had been extensive discussions in the last two or three quarterly meetings by the board about the best process to embark upon a capital campaign to do just what Commissioner Schauner had mentioned. He said there had been some discussion.
Mayor Amyx said since some of the project was going to be financed by general obligation bonds they would be looking at an election component. He asked what the timing would be for this project.
Flanders said they believed that through this Request for Proposal process there was an opportunity for the City Commission to review the private developer proposals that came forth by the end of May or the first part of June, then they would like to see where that discussion led. He said there would need to be a subsequent architectural study to come up with the design for building at that point and come up a project budget. He said without that key information there could not be an informed election process. He said it seemed to him personally that a November 2006 election item involving the library and possible bond issues was an aggressive timetable because it took a considerable period of time to put together a design of that nature. He said April of 2007 seemed like a more distinct possibility, but he would not rule out November as a possible early target. He said he was trying to keep an open mind and move as quickly as they could while still being thorough about the process.
Mayor Amyx said the reason he asked about the timing was that he was trying to place priorities on what the public could afford and what needed to come first. He said there were two other levels of government in this community between the county and the school district that had big project needs. He said the City Commission needed to come up with a solution to the library project, but needed to make sure that it was at a time that it could be afforded.
Flanders said he understood that concern and could not even begin to conceive of the plate the City Commission had in terms of all of the City’s needs. He said it was not inconceivable that one of the private developer projects that came back might have some additional funding components that might lessen the need for a bond issue in support of the library, which was something he hoped to see. He said when looking at this project, they were continuing to look at the current library location and if that was the best option, it would be an entirely publicly funded option as opposed to working with a private developer in some other portion of downtown that might be a mix of private funds or other forms of revenue in addition to the public bond issue kind of funding. He said they would know a lot more a month from today, when they start to evaluate some of those developer responses.
Mayor Amyx said he appreciated how Flanders had stayed on top of this project along with Clark and the other consultants.
Commissioner Schauner said he would be happy to serve on the committee.
Vice Mayor Hack said she would also volunteer to serve on the evaluation team.
Moved by Highberger, seconded by Schauner, to approve the establishment of the evaluation team as recommended in the staff memo; and to appoint Vice Mayor Hack and Commissioner Schauner as representatives to the evaluation team. Motion carried unanimously. (14)
Mayor Amyx said the study session would be scheduled for June 8th, at 9:00 a.m.
Receive staff report on City noise ordinance and consideration of possible amendment to noise ordinance concerning construction noise issues. This memorandum follows up on a public meeting on general noise ordinance items conducted in March and the construction noise issue which has been discussed for a number of months.
Scott Miller, Staff Attorney, presented the staff report. He said after the meeting that took place on March 10th, former Mayor Highberger requested staff to produce several different options for the City Commission to consider regarding the noise ordinance. He said he thought it was fair to say this issue came to the attention of the City Commission based upon a proposal by the KU Chapter of the ACLU who proposed a different enforcement regimen that might include a decibel base standard for a noise ordinance.
The three different options that were discussed were: 1) preserve the current ordinance; 2) adopt a decibel based standard in accordance with the ACLU’s proposals; 3) adopt a plainly audible standard, which was probably more objective than the current standard, but less onerous to enforce than a decibel based standard.
Either the plainly audible standard or the preservation of the current noise ordinance would be the recommendations of staff, at this point, and he discussed why staff was not recommending the adoption of the decibel based or performance standard.
He said currently, in Chapter 14-414, of the City Code, Disturbing the Peace, made it unlawful for any person to create noise which endangered or injured the health, peace, or safety of other people of ordinary sensitivity within the vicinity of the noise. He said the reason the term “ordinary sensitivity” was important was because without that term this ordinance would be vague and constitutionally be subject to court attack because of the Kansas Supreme Court’s decision in the Luna case. That case involved the City of Ulysses in that if there were no persons of ordinary or reasonable sensitivity standard that the ordinance would be no good, essentially from a vagueness standpoint and was not objective enough.
However, because they had people of ordinary sensitivity language, it was staff’s opinion the City’s ordinance could stand up to legal attack based upon the Kansas Court of Appeals case in the City of Wichita vs. Smith which was decided after the Luna decision. He said that case basically decided that because the City of Wichita incorporated a reasonable person standard into their noise ordinance, that it made it okay from a vagueness standpoint and that the ordinance was valid.
Currently, it appeared the City’s ordinance was working appropriately to handle the issue of noise within the City of Lawrence. Last year there were 334 cases filed under the noise ordinance, 62% of those resulted in guilty pleas, a significant number were diverted, a few were found guilty at trial, and several were dismissed. He said when he talked to Jerry Little, City Prosecutor, about why the cases were dismissed, Little said mostly the dismissals were a result of witnesses not being available for trial. Often, the case of noise ordinance violations, were from witnesses who were not police officers and had to show up to court and take time out of their schedule for successful prosecution to take place.
He said the objection to the existing law by the ACLU was the term “person of reasonable sensibility or ordinary sensitivity” while it was more objective than having nothing, the ACLU believed it was not objective enough. He said it was the idea that a person could not define with mathematical precision where the different boundaries of the ordinance were and that should make it invalid or at least make the decibel based standard more appropriate. He said when first looking at a decibel based standard, it did look like something that would work fairly effectively until analyzing the cost of the decibel based standard and the things that were created by the standard that made enforcement of the ordinance difficult, and close to impossible in certain circumstances.
First of all, regarding the cost, there were approximately 23 patrol units that would need to be equipped with decibel meters in order for the City of Lawrence to have full coverage with decibel meters, without having to call additional units and incurring the time and waste of resources that would take. He said his original conservative estimate for each decibel meter was $500 to 1,000 per unit. He said he did some subsequent research and noticed that the City of San Antonio, Texas, had recently purchased decibel meters which cost approximately $2,200 a piece. He said if using the San Antonio numbers, the capital investment would be over $40,000 to kick off this program to purchase the decibel meters, which was probably not counting the cost of the training of the officers, either by an outside party or by someone who could train the trainers. He said it did include the calibration equipment necessary to make certain the units were working properly and the data logging equipment that was necessary for those units to be accepted in Court. He said he has seen some more reasonably priced units that if added with calibrators, would be in the $500-$2000 range. He said he had not investigated those units except to determine they were ANSI (American National Standards Institute) certified units therefore, perhaps the cost might be less, but staff knew San Antonio spent that much money.
He said about 100 police officers would have to be trained in order for every police officer who might be called upon to use one of the decibel meters to actually have the training experience necessary.
He said a more important challenge were the challenges that arose in the Court system and when the police officers were out in the field, regarding enforcement, to make this a strategy or scenario that they would not recommend.
One of the biggest difficulties with enforcement and the use of decibel readings was there was no Kansas case that recognized the decibel meter technology as something that was accepted in the scientific community as reliable. The reason that was important when using technological evidence with lay operators could be illustrated by taking a look at a couple of other scenarios when that takes place. He said they used Radar or Lidar in order to measure the speeds of moving vehicles or the use of the Intoxilyzer 5000 or an Intoxilyzer machine to measure blood alcohol contents in DUI’s. In each of those circumstances, there was case law that existed that had been litigated to that point to the extent that judges were directed to certain requirements and the results of those tests should be admitted as evidence. He said as things stood in the decibel meter context, there was no such case in the State of Kansas. He said to some extent, they were talking about a crap shoot. Since the admission of evidence was something that was discretionary, on behalf of a Court, the City could invest in the decibel meter technology and not have a Court who would admit our police officers’ results as evidence without expert testimony showing that those test were reliable in any particular case. He said that would be the worst case scenario, but it was possible under the rules of evidence.
He said another problem with the enforcement issue when it was a little more practically oriented, was the fact that taking a decibel meter reading took time. He said the police officer would need to get out of their vehicle, approach the source of the noise, make sure the unit was properly calibrated, operate the unit correctly, all in a dynamic environment where nothing was standing still. He made an analogy to speed enforcement. He said when people see police running radar they typically reduce the level of their offending activity, which would probably be a problem in this circumstance as well.
There were other problems regarding citizen understanding. He said when expressing sound in decibels most people would not know what 60 or 70 decibels sounded like. He said unlike a situation where measuring temperature where each degree had a constant value, in the case of decibels, they were based upon a logarithmic formula. He said when going up 10 decibels, the actual energy involved was increased 10 fold, however, because of the way your ear perceived sound, the loudness of the sound increased 2 fold or doubled. He said this information was a little more technical, but it was something to consider because as a member of the public sitting in their home faced with a decibel based standard, the public was left with either guessing as to what the decibel reading would be or they were left in a position where they had to spend $50 to have decibel meter that might tell them that a persons behavior was lawful or unlawful. He said that was not an improvement over the current ordinance in terms of citizen understanding.
He said staff viewed a lot of problems that existed with the decibel based standard, but the question from former Mayor Highberger was if there was a more objective standard that could be adopted if choosing to do that which would be acceptable from an enforcement standpoint. He said he thought the answer to that was the plainly audible standard was a lot more acceptable and what the plainly audible standard was based upon was time and distance measurements. For example, in residential areas between the hours of 10 p.m. and 7 a.m., if hearing any sort of sounds emanating from a property 50 feet from the property line, that was a violation of the ordinance. He said it dealt with things that were a lot easier to get a grasp on for an average citizen such as distances and times. It also allowed the police department to enforce things based on a more common sense standard without having to deal with increased technical training and expensive purchasing decibel meters. A lot of cities had adopted a plainly audible or clearly audible standard. For example, in the memo, he referenced New York, New York, was now moving away from decibel based standard somewhat and embracing a plainly audible standard. He said that even some of the cities that had decibel based standards like Los Angeles and Boston, had backups written into their ordinance that allowed enforcement not based upon the decibel based standard. He said in Boston, they used a backup that was plainly audible and in Los Angeles, they used a backup that had a reasonable person standard closer to the City’s ordinance that existed right now.
He said if the City Commission wanted to amend the noise ordinance, there were solutions that were preferable to all those reasons to the decibel based/performance based standard.
He said in addition to deciding what standards should be adopted in the noise ordinance, if it should change at all, a couple of other things should be considered because there were issues not related to the ACLU memorandum, but there were issues that had come up and been placed into consideration of the City Commission and city staff. One of those complaints or considerations was the current exception for construction noise that existed in the City’s noise ordinance.
Currently under the noise ordinance, construction noise was wholly excluded from any sort of application of the ordinance. He said that meant, at this time, if a construction project was taking place at 3:00 a.m. and was very noisy, the noise ordinance would not cover that issue at all. He said that Gwen Klingenberg, Lawrence Association of Neighborhoods, was present and was the person who was doing the analysis on the noise reports that the City had in the past. He said there had been some complaints related to construction noise, but statistically, there appeared to be very few complaints. He said only a handful during the period that Klingenberg analyzed.
He said to some extent, there was a need to pare back the exception, but on the other hand, there was a potential that the people in the construction industry were being very reasonable in how they approached construction noise. He said most cities other than Lawrence did have some limitations on their construction noise and an exception to their noise ordinance. Predominantly, those started somewhere between 7-11 p.m. and go through the night hours. He said many cities that had those limitations also had permit systems or had some sort of exception that could be granted in either an emergency situation or for construction project that was not practical to conduct during the day.
He said that within the analysis of the noise ordinance, staff suggested the exceptions, including the construction noise and the other exceptions, be considered at the same time to determine whether they were still appropriate.
Commissioner Schauner asked if he would describe the Boston approach as a belt and suspenders approach since they were using the decibel standard and reasonable person standards.
Miller said that approach was used in many of the places that had decibel meters. He said he had some familiarity with the idea of decibel based enforcement because he worked for the City of Overland Park for several years as prosecutor and their noise ordinance right now has a decibel based component in it. He said the other half of the equation was plainly audible or clearly audible standard and that was the one that was used in enforcement for the police officers. He said the decibel based standard, as far as he knew, had never been used to successfully prosecute a case in that city and his information were current as of last month.
Mayor Amyx said the Commission’s action tonight was to receive the staff report. He asked if staff needed direction from the City Commission.
Miller said staff’s preference would be to direct staff to leave the ordinance alone or provide direction on which direction to proceed.
Bobbie Flory, Lawrence Homebuilders Association, said last summer she attended a meeting in the conference room with representation from the construction industry, neighborhoods, and various city departments, which was a very informative meeting. She said they learned there was a lack of documentation for construction related noise complaints. Most city departments only had anecdotal information, but none indicated that the construction related complaints were frequent. The representative from the Police Department recalled a few complaints, but noted that they were easily resolved by contacting the building contractor.
She said Gwen Klingenberg had submitted that there were 2,796 noise complaints, according to police records, of which only 16 were construction related. She said that equated to approximately .5%. She said that was an extraordinary small percentage of complaints when one considered the amount of road construction and building activity in Lawrence. The construction industry was not abusing the notion of reasonableness of peace and quiet in the neighborhoods. To quote from Scott Miller’s report, he said, “Nonetheless, the number of construction related noise complaints received by the police force demonstrates that the vast majority of people conducting construction operations within the city do so responsibly even without facing the threat of prosecution.” She said what she thought Miller was saying was that there might be very few complaints, but in general, the construction industry was acting responsibly in this community. As she stated in a previous City Commission meeting, the reason it was important to the members of the Lawrence Home Builders Association to maintain the construction exemption in the noise ordinance was because there were situations when working outside of the typical work day hours was necessary. Weather and safety were driving factors in those situations. She said the Lawrence Home Builders Association did not support a change to the construction exemption in the noise ordinance at this time.
Justin LaMort, Lawrence, said last year the City of Lawrence had changed both the noise ordinance and the Nuisance House Rule, making it easier to prosecute and the punishment stricter. He said since that time, a number of prosecutions had dramatically increased, to triple and quadruple the number of the year before. He said those punishments included hundreds of dollars worth of fines, possible eviction, and jail time. He said if they were going to have such strict punishments, they must also have strict definitions to know what those laws were.
He said they did not oppose a law being enforced, but only wished to ensure it was done fairly, justly, and objectively. After extensive research from previous months and discussions with the community, they believed the best way was to enacting either the one first practice, but much more sensibly, the decibel limit that treated everyone equally.
The vast majority of situations could be resolved outside of court with one conversation, be it from a person being bothered or an officer. Unfortunately, just as there was a minority of neighbors that were too loud, there were those who use institutional means to harass.
He said what was acceptable on one day, might be criminal on the next. He said what was alright in one neighborhood, could cost hundreds of dollars two blocks down the street and good law should not work that way.
Concerning the increase of violations, there were nearly 20% of cases being dismissed, and hundreds of names on those petitions prove there was a desire in this community to make a sensible change. He said they strongly disagree with Miller’s finding on the decibel based standard. This method was being used in cities across America as a common solution to problems, using technology was only becoming more effective and more efficient. It was neither costly nor unenforceable, and the contradictions they saw in the report, went along with the research they had been doing for the last few months.
He said that Miller claimed New York City was an example of it not working, but they had been using it for 30 years before considering changing to the plainly audible standard, which quite frankly, was still better than the standard the City had.
He said Miller mentioned San Antonio willing to spend tens of thousands of dollars and they were spending that kind of money because it was a better way, but he did not believe it would cost the city that much. He said cities of comparable size to Lawrence found this was a sensible way to strike the balance between what was right to enjoy their property to the right to peace and quiet.
He said a City Attorney from Tuscaloosa, Alabama stated: “It had worked acceptably well. We use a decibel limit suggested by Professors of the University. It keeps student partying noise down, but it does not prevent them. It was the only objective standard they believe could survive Court challenges, plus it is easily to enforce when you put meters in patrol cars.”
He said this was exactly what they had been saying; it was a sensible solution to solve this problem.
He said the fact that Miller seemed to oppose this approach, he would like to address some points. He said the three points were the cost, enforcement, and citizen understanding.
He said Miller’s first objective of cost was somewhat superficial. He said this approach would cost more than the status quo, but it was a much better method. He said with 200 plus convictions and diversions, constituting hundreds of dollars in fines, a small portion of that money could be locked into purchasing those devices. He said in their research it was found that it would not cost $2200 a unit, but $500 at most. He said they would not need to put them in all patrol cars because generally a small number of patrol cars handled such noise disturbances and other such related issues and it was usually one or two officers that were assigned to the vast majority of cases in an area.
He said if the Lawrence Police Department could figure out how to use a radar gun, they could figure out how to use a sound reader. He said he did not believe training would be that difficult since it was being used across the country.
The other two issues were enforceability and citizen understanding. He said as a proponent of sensible change, he would continue to use radar gun analogy. He said an officer used a commonly acceptable device to measure accurately to see whether or not it exceeded defined limits, which made sense. The reason cities in Kansas started using the radar gun was because it was better. The reason people in Kansas started using the DUI test or breathalyzer was because it worked and it was better. He said someone had to be the first to use those decibel readings and he thought Lawrence should step up to the plate.
The current noise ordinance was outdated and vague, and this message was time tested and fair. The biggest opposition of this plan did not seem to be citizen awareness because he had read the noise ordinance and still did not know what it meant. He said the biggest problem he saw was the problem of the fear to change. After seeing the increase of the charges, seeing the possible punishments of the charges, he thought change was needed. He said that maintaining the current ordinance should not be an option. They had presented the failing of this subjective law, the communities desire for change, and a sensible solution with real world experience that proved their merit.
National news coverage showed that Lawrence was not the only city with this problem. He said Lawrence has an opportunity to set an example of how this issue could be dealt with effectively and Lawrence should not waste that opportunity. If officers already gave warnings 99% of the time, why not put that into practice and make it policy, to make sure it was happening. If there was a better way to strike a balance with the noise ordinance that respected the rights of everyone without prohibitive costs or enforcement issues, he asked why that should not be practiced. He said he had petitions that showed community support for changes to the noise ordinance. He presented those signed petitions to the Commission.
Gwen Klingenberg, Lawrence Association of Neighborhoods, said the construction noise topic was an issue requested by a Commissioner, not a request by the neighborhoods, and the issue was construction in residential areas. She said at a meeting that was held on that noise issue, it was said that Public Works, Neighborhood Resources and the Planning Department heard complaints, but they did not track those complaints and did not know the number of complaints. She said that with infill development occurring with commercial in the middle of a neighborhood or residential in a neighborhood, it was going to cause problems. The weather and workers were important factors to take into consideration, but people in those neighborhoods also had jobs and kids that had to get up the next morning and construction noise 24/7 was something they did not want going on.
Steve Glass, Lawrence, said he was present to discuss the noise ordinance from a construction perspective which was slightly different than a home building perspective from which Flory discussed. He said he was not familiar with the enforcement of the current noise ordinance and was not aware there had been significant problems, but his initial thought would be why change something that seemed to be working reasonably well. If the ordinance was changed, it seemed to make the most sense to go to the most objective approach, which would be the sound meters. He said he disagreed somewhat with Miller’s perspective on those sound meters because those meters were used in industry. OSHA imposed sound requirements on their operations and all manufacturing type of operations and it was not quite as unusual. He said if the City Commission was going to make a change, he encouraged the Commission to go the direction of the sound meters because it seemed if going to the plainly audible idea, would be less objective than what they currently had and certainly no more objective.
The second issue was construction noise. He said the point was made by Flory and Miller about the small number of construction complaints and he knew there were other reports of comments or complaints received by other departments, but he recollected that City staff stated those complaints were very minimal and were always resolved through a phone call or a quick contact with the people involved. He said he thought that all aspects of the construction industry were acting appropriately and where violation or excessive noise occurred, they were trying to be good citizens and deal with that issue.
He said that several types of construction work for numerous reasons needed to be done in nontraditional work hours such as paving on major arterials and major collectors streets that the City preferred the paving be done at night because of lower traffic levels and less impact on the larger segment of the community. He said it did impose some noise for one or two nights on those who lived immediately adjacent to the street being paved, but typically those streets were paved 8, 10, 15 years apart so it was hardly a regular imposition on people.
There were some types of construction work that, simply for technical reasons or logistical reasons, needed to be done during nontraditional hours. Concrete pourers and bridge decks were often poured at night to facilitate the appropriate performance of the product and he asked the Commission to keep that information in mind if the Commission was considering eliminating the construction exception.
He said it seemed there were several exceptions, other than construction that were not discussed such as trash pickup was and personal and commercial mowing. It seemed that noise was noise whether it came from trash trucks, construction equipment, or lawn mowers. He asked why one industry would be singled out and others industries allowed to continue. He said if the City Commission was going to eliminate exceptions, he suggested eliminating everything except emergency situations.
Concerning the Hutton Farm situation mentioned by Klingenberg working 24/7, he said he had been in this business for 40 years and that was the first project in the City of Lawrence that he could recall being built on a 24/7 basis. He said to cite that situation as an example that the City Commission should govern against, seemed to be somewhat unreasonable and suggested that would not be an issue in the long term.
Tom Harper, Centennial Neighborhood Association, said he was present to urge the Commission to retain the current noise ordinance as written. He said he was not surprised that there had been an outcry about the ordinance being enforced. He said nobody liked fines, jail time, or feeling like they had been persecuted in an unfair way. He said he became involved with this issue 6 years ago when he actually sold his house because of a group of four young men who lived very close. He said it was quite disrupting and there were no easy solutions to this problem, so they ended up moving. He said back then, the noise ordinance was not being enforced and he did not know anything about the noise ordinance. He said it could be very disruptive if someone was living on top of it, if not, it was not a problem.
He said he also became more sensitive about this issue when a neighbor came to the Neighborhood Association with a problem of being sandwiched in between two homes that had students living in them with constant late parties. He said the association got involved and looked into the noise ordinance and the Disorderly House Nuisance Ordinance. The association worked hard to encourage the City and Police Department to enforce this ordinance. The police department had been stepping up to the plate and dealing with complaints. He said in a meeting the Chief of Police he stated this was a complaint driven ordinance and the police were not riding around in their vehicles looking for people to cite. Also, they had the professionalism to use their discretion and cite people when they felt it was necessary. He said he would like to let the police do their job and trust they were trained and could enforce the noise ordinance efficiently and effectively. He viewed this issue as really simple in that if someone was disturbing the peace, that was an action and it deserved a consequence. He said the system that was set up was finally working in protecting neighborhoods and would like to see the noise ordinance left alone.
Commissioner Rundle asked Harper what proposed changes he viewed as having a downside.
Harper said the plainly audible was the change that he heard being discussed along with noise meters. He said he concurred with Miller’s arguments regarding the noise meter. He said he trusted that Miller did his homework because it sounded reasonable. He did not know if he understood the plainly audible idea and the difference between that versus what they had now. He said he liked what was in place now because it was working.
Conrad Henderson, Centennial Neighborhood resident, said he had called the police during high school parties in which there were fights on the front lawn, but he had not had much trouble with University students. He said he did not know how sound could be measured, but for some reason the low beats of music rattle the walls of his house and he suggested that the City Commission take that issue into consideration.
James Dunn, Oread Neighborhood Association, said his association was comfortable with the current ordinance, but the association would be interested in any proposed changes.
Mayor Amyx said the City Commission had multiple choices that could be considered. He said concerning Miller’s comments, he asked the Commission if they would like to take any action other than what was presented by Miller. The first step would be to discuss the Commission’s support of the current noise ordinance and whether a change was necessary. He said he had heard great comments from both sides. Concerning the plainly audible standard, he thought Harper brought up a good point in that a better definition of how it was different might be something the Commission might want to look at, but he thought the current ordinance should be addressed first.
Commissioner Highberger said he talked to a group of students from Delta Force earlier this year in which they presented the concept of a more objective noise ordinance. He liked that concept and encouraged those students to attend a meeting to suggest the other noise issues with KU and neighborhood representatives. When he was first introduced to the idea it looked good, but after hearing about more experiences in other places, he was not sure he was ready to move there yet.
He said he appreciated the involvement of the students wanting to make a positive change in city law and he would like to see it done more often. The reason prosecutions had gone up was because there was serious problem before. He said he lived in student neighborhoods for years and had seen a steady increase in un-neighborly behavior. He said that City Commission had reached a point where they had to do something and he thought the new ordinance was working and wanted all the ordinances to be fair and did not want people to be harassed for living their lives. He said many students had jobs where they had to get up in the morning and it was hard to get some of those things to happen in his neighborhood. He said he did not support a change at this point and he was a worried to the change of plainly audible to the alternative because they might end up with something more restricted than what they had now and it was not necessary.
Commissioner Rundle said he did not see a clear demonstration that one method was more just than others. He said they did need to pay attention to that concern that it was evenly enforced, objective, and fair.
He said he did favor placing a construction noise limitation into the noise ordinance as the majority of other cities had. He said it was a courtesy to have construction noises limited during a time when normally people were sleeping. He said clearly, there could be exceptions and there should be a process to apply for exemption which addressed the concern of the construction community and if the construction community had a pressing need, then there should be a way to receive temporary relief from that ordinance.
Commissioner Hack echoed what Commissioner Highberger comments. She said she appreciated the community being present and hoped they would continue their involvement in local politics because that was critical to the Commission.
She said she believed there had been some issues with neighborhoods and the good neighbor issues that Commissioner Highberger was discussion was something the community needed to be concerned about. She said, at this point, she was not interested in any changes in the ordinance.
She said the plainly audible idea had some complications. The current ordinance worked and had made life in neighborhoods more livable for everyone.
As far as the construction piece of this issue, she was not ready to consider pulling construction out of the exempt section of the current ordinance.
Commissioner Schauner said one of the most difficult issues in the University setting was trying to find a way to manage the inherent exuberance of college life with the day to day demands of raising a family. He said he thought there were some competing interests among those groups and he was impressed with the group that came to the City Commission meeting because the group conducted themselves admirably.
He said he had not heard enough to warrant a change to the ordinance at this point. He said in a year from now, he would like to see if the complaints were up, down, or about the same. He said he thought there was a culture change that needed to occur and people needed to have some sense of what acceptable behavior in a neighborhood so they could operate under the golden rule.
With respect to the construction exception, he was not ready to support a change, but he would like additional discussion about that issue. He said he knew the West Lawrence Neighborhood Association had a lot of concern about the build out of West 6th from Wakarusa to K-10. There was a lot of noise early that went on for weeks if not months. That might be an extraordinary circumstance that might not require doing anything at this point, but he wanted further discussion with the construction community to figure out if there was an issue that needed to be given further consideration.
At this point, he was not willing to take construction out of the exceptions, but he would also like to have more information about how staff might be able to integrate what other cities had done, into the City’s policy that would provide additional protection to neighbors.
Commissioner Rundle said there were people who did not called the appropriate intervening agency that did not document those complaints. He said he knew some people were informed that construction was exempt so those people dropped their complaint and did not initiate future complaints. He said he did not think it was just a West Lawrence issue where they had heavier amount of new construction with infill projects. He said even with general repair people sometimes picked odd hours for those projects. He thought construction scheduling could be controlled so that the less noisy things were being done during those off hours. Again, when there was a clear need for exemption, it should be provided.
He asked staff to look into those communities that did have construction noise limit provisions to get some sense of detrimental impact on construction in those communities that regulate construction noise.
Mayor Amyx said this was not an issue that was pin pointing KU students, but an issue that spanned across the entire community. There were problems not only with student housing, but other housing with noise complaints.
He suggested additional discussion about the plainly audible standard and how it had been applied in other cases.
The decibel meter issue had a cost that would be fairly prohibited for the City of Lawrence, at this time. He said he was not interested in making a change to the noise ordinance, at this time.
He said suggested further input from the University community and he would like more information about what other cities were doing with their noise ordinances. He suggested tracking more noise complaints to see if the City might need to go to a different standard and he would be opened to that type of plan.
Commissioner Highberger said as to the construction noise exception, he was not convinced there was an issue, but he was willing to look at issue. He said there needed to be clear exceptions for emergencies.
Commissioner Schauner said he did not know whether a decibel level on low hertz sound registered the same as decibel level on a high hertz sound. He said the very low range sound which tended to reverberate he suspected did not have the same high decibel level that a higher pitch sound would have.
Miller said some of the research he had read stated that when people were tested, most decibel ranges fell within the rule of thumb that he had discussed, but when getting lower sounds, there was a magnifying effect as to how potentially loud those sounds sound. He said what he saw today was two times per 10 decibel increase for most sounds, but in that range it could be between 16 and 25 times.
Commissioner Schauner said the volume was not high, but if the plates were shaking on the shelf, it might be just as disturbing to someone’s sleep as a high pitch sound outside someone’s window.
Miller said the City already used a plainly audible standard when it came to enforcing the vehicle noise violations. If there was a vehicle 50 feet away that was the sound source producing that noise would be a violation of the City’s noise ordinance.
Commissioner Rundle said he would like to see information on what other communities did with construction noise by regulating the noise.
He asked if there was anyone who regulated those low frequency sounds.
Miller said he never had contended that decibel meters were a new technology. The problems that he discussed were problems with the application of the technology in court, but there were different weightings in decibel meters. He said there was more complicated decibel meters that read specific octaves of sound which was what the Commission was discussing in doing a more detailed analysis. He said some cities did that type of complicated analysis.
Commissioner Hack said she liked Commissioner Schauner suggestion to have a meeting of the stakeholders on the construction issue.
Mayor Amyx said if the Commission was going to open up the construction issue, they should open up the entire issue. He said he was willing to accept the additional information that was requested by Commissioner Schauner and others.
Commissioner Schauner said he would like to hear from the neighborhoods if the noise ordinance was working on not working and was there a reduction in the objectionable noise in the neighborhoods.
Moved by Rundle, seconded by Hack, to receive the report and direct staff to provide information on what other communities do regarding construction noise and whether there are any limits on the construction industry, and any differences for residential construction and heavy construction and with the understanding that before any proposed ordinance would be drafted that there would be a stakeholders meeting. Motion carried unanimously. (15)
PUBLIC COMMENT:
James Dunn, Lawrence, said he was pleased the Traffic Safety Commission was looking at some of the intersections in the downtown area and he encouraged that the TSC be directed by the City Commission to look at all of the intersections in the downtown area for pedestrian safety. He said there were some intersections that were particularly dangerous such as 7th and Tennessee. He said there were a number of intersections in the downtown area that were heavily used by pedestrians that needed to be studied. He said there were questions about the procedure with stop lines and suggested that they try to find a good way of identify where people would be safe walking.
Mayor Amyx suggested that Dunn meet with the Chuck Soules, Public Works Director, to give Soules and idea of all the problem locations and pass that information on to the Traffic Safety Commission for their recommendation. (16)
REGULAR AGENDA (CONT’D):
Consider motion to recess into executive session for approximately 30 minutes for the purposes of: 1) discussion with attorneys for the City on matters which would be deemed privileged under the attorney-client relationship; and 2) matters related to employer-employee negotiations. The justification for the executive session is to keep confidential matters privileged under the attorney-client relationship and. The regular session of the Commission will resume in the Commission meeting room.
Moved by Highberger, seconded by Hack, at 8:35 to recess into executive session for approximately 30 minutes for the purposes of: 1) discussion with attorneys for the City on matters which would be deemed privileged under the attorney-client relationship; and 2) matters related to employer-employee negotiations. The justification for the executive session is to keep confidential matters privileged under the attorney-client relationship. Motion carried unanimously. (17)
The Commission returned from executive session and resumed the regular session at 9:05 p.m.
Moved by Schauner, seconded by Highberger, to adjourn at 9:10 p.m. Motion carried unanimously.
APPROVED
_____________________________
Mike Amyx, Mayor
ATTEST:
___________________________________
Frank S. Reeb, City Clerk
1. Bid – 2006 Overlay & Curb Repair Phase 2 to RD Johnson for $1,306.130.25.
2. Bid Date Set – Kasold Dr & Peterson Traffic Signals, May 2, 2006, 2:00 pm.
3. Ordinance No. 7989 – 1st Read, Temp Alcoholic Beverages, Eagle Bend Golf Course, May 5th
4. TSC – “No Parking” W side of Stewart from 19th, S 500’.
5. TSC – “No Paring” S side of 9th between Penn & New Jersey.
6. Ordinance No. 7992 – 1st Read, “No parking” W side of Stewart Ave from 19th, S 500’ & “No parking” S side of 9th between Penn & New Jersey.
7. Resolution No. 6643 – GOB $700,000 for main trafficway.
8. TUPR-04-07-06 – Motorcycle Show, Slow Ride, 1350 N 3rd.
9. Subordination Agreement – 2708 Rawhide Ln, Retha Beebe.
10. Project agreements - HPF 20-06-21519-004 for Design Review Intern and 20-06-21519-006 for Downtown Design Guidelines.
11. Study Session Confirmation – April 13th
12. City Manager’s Report
13. TSC - Install stop lines, each approach to the intersection of 9th & Conn.
14. RFP - Evaluation process for expansion Lawrence Public Library.
15. Noise Ordinance – Amend concerning construction noise issues.
16. Public Comment
17. Executive Session/Commission Items