August 14, 2007

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 Hack presiding and members Amyx, Dever, Chestnut and Highberger present.

RECOGNITION/PROCLAMATION/PRESENTATION

With Commission approval Mayor Hack received a presentation regarding a gift from Hiratsuka delegation.

At the applicant’s request, the development at the northeast corner of 6^th and Wakarusa Drive was deferred until August 28^th.  

CONSENT AGENDA

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to receive the Community Commission on Homelessness meeting minutes of May 8, 2007 and June 12, 2007; and the Neighborhood Resources Advisory Committee meeting minutes of May 10, 2007.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve claims to 539 vendors in the amount of $1,572,340.97.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve the Drinking Establishment License for Cadillac Ranch, 2515 West 6^th Street; and Stone Creek, 3801 West 6^th Street.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve sale of surplus equipment and vehicles on Gov Deals.  Motion carried unanimously. (1)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve Change Order No. 1 to contract with LRM Industries for KLINK Resurfacing, Iowa, and 6th Street to Yale Road and Irving Hill Road to 23^rd Street.  Motion carried unanimously.          (2)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to authorize the City Manager to enter into a contract with the design/build team of CAS Construction/Professional Engineering Consultants, in the amount of $100,000 for preliminary field investigative services for the construction of conveyance system to the new 7.0 MGD BNR Wakarusa Water Reclamation Facility (WWRF).  Motion carried unanimously.                      (3)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to authorize the City Manager to enter into a contract with the design/build team of Black & Veatch/Grimm Construction, in the amount of $134,100 for preliminary field investigative services for the construction of the new 7.0 MGD BNR Wakarusa Water Reclamation Facility (WWRF) and improvements to the Four Seasons Pump Station and Excess Flow Storage Facility.  Motion carried unanimously.                                                                                            (4)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to authorize the City Manager to enter into a contract with Restoration & Waterproofing Contractors, in the amount of $266,059, for construction first-year repairs to the Kaw Water Treatment Plant.  Motion carried unanimously.                                                                       (5)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to authorize the purchase of a six-month supply (90,000 pounds) of Polymer, a water treatment chemical, to GS Robins Chemical Company for $49,500.  Motion carried unanimously.             (6)

The City Commission reviewed the bids for one (1) half ton pickup for the Parks and Recreation Department.  The bids were:

BIDDER                                              BID AMOUNT           

Laird Noller                                                                  $15,439.50

            Shawnee Mission Ford                                               $15,600.00

            Olathe Ford                                                                $15,736.05

            Crown Chevrolet                                                         $18,213.33

            Jim Clark Motors                                                         $19,000.00

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to award the bid to Laird Noller, in the amount of $15,439.50.  Motion carried unanimously.           (7)

The City Commission reviewed the bids for one skid steer loader for the Parks and Recreation Department.  The bids were:

BIDDER                                              BID AMOUNT           

Berry Tractor & Equipment                                         $24,345.00

            Berry Tractor & Equipment, angle broom                    $4,014.00

            Berry Tractor & Equipment total bid                      $28,359.00

KC Bobcat                                                                  $24,578.96

            KC Bobcat angle broom                                               $4,142.74     

            KC Bobcat, total bid                                                 $28,721.70

Victor L Phillips                                                           No Bid                                                

            Martin Tractor                                                             No Bid

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to award the bid to KC Bobcat, for the total amount of $28,721.70 because the low bid from Berry Tractor & Equipment did not meet specifications.  Motion carried unanimously.                     (8)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to place on first reading Ordinance No. 8141, rezoning approximately 1.623 acres known as Lot 2A, Block 2, a Lot Split of Lot 2, Block 2, a Final Plat of Wakarusa Place Addition, from PRD-2 District to OS District.  Motion carried unanimously.                                                                     (9)

Ordinance No. 8132, a Joint City Ordinance and Country Resolution No. ______, to add Chapter 14 – Specific Plans to Horizon 2020, CPA-2007-01, was read a second time.     As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                                                                                                                                      (10)

Ordinance No. 8129, establishing the maximum assessments for the development of Oregon Trail Park, was read a second time.          As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                                                        (11)

Ordinance No. 8139, adopting and appropriating by fund the 2008 City of Lawrence budget was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                                                              (12)

Ordinance No. 8131, establishing solid waste service rates for 2008 was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                                                                                                                                (13)

Ordinance No. 8133, establishing water service and sewage disposal rates for 2008 was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                                                                                             (14)

Ordinance No. 8134, establishing system development charges for water utility and wastewater utility connections for 2008 was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                   (15)

Ordinance No. 8140, noting the necessity of appropriating/budgeting property tax revenues for 2008 in excess of that which was appropriated/budgeted for 2007 was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt the ordinance.  Aye:  Amyx, Dever, Chestnut, Hack, and Highberger.   Nay: None.  Motion carried unanimously.                                                                                                              (16)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt Resolution No. 6724, requesting the Board of County Commissioners of Douglas county find and determine that the “island” annexation of approximately 536.88 acres, located south of the Wakarusa River near the intersection of North 1175 and E. 1600 Roads, will not hinder or prevent the proper growth and development of the area of that of any other incorporated city located within Douglas County.  Motion carried unanimously.                                                (17)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt Resolution No. 6734, ordering the transfer of funds from the equipment reserve fund to the transportation fund.  Motion carried unanimously.                                                       (18)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to adopt Resolution No. 6735, authorizing the sale of general obligation temporary notes, Series 2007-I and general obligation bonds, series 2007-A.  Motion carried unanimously.                 (19)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve amendment request from Landplan Engineering for TA-06-11-07 to amend Section 20-403, the Nonresidential District Use Tables to permit “Quality Restaurants” in the IL District.  Motion carried unanimously.                                                                                                             (20)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve amendments to Section 20-218 of the Development Code for TA-06-12-07 to modify the Access Standards of the GPI District.  Motion carried unanimously.                                (21)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve variance request (City Code Section 19-214B) allowing a private sanitary sewer service line in Lot 2, Greenbrier Addition, to be located in a City public right-of-way for greater than 15 feet.  Motion carried unanimously.                                                                                                  (22)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to approve variance request (City Code Section 19-214B) allowing a private sanitary sewer service line for 1105 and 1117 West Hills Parkway, to be located in a City public right-of-way for greater than 15 feet.  Motion carried unanimously.                                                                              (23)

As part of the consent agenda, it was moved by Amyx, seconded by Chestnut, to receive communication from Freedom’s Frontier National Heritage Area and direct staff to review and place on City Commission Agenda for August 28, 2007.  Motion carried unanimously.                                                                                                                                     (24)

Commissioner Highberger requested the first reading of Ordinance 8142 and 8143 be pulled from the Consent Agenda for a separate vote. 

It was moved by Chestnut, seconded by Amyx, to place on first reading Ordinance No. 8142, rezoning approximately 2.186 acres known as Lot 2B, Block 2, a Lot Split of Lot 2, Block 2, a Final Plat of Wakarusa Place Addition, from PRD-Wakarusa Place District to PCD-6Wak District, with restrictions.  Aye: Amyx, Chestnut, Dever, and Hack.  Nay:  Highberger.  Motion carried.                                                                                                                            (25)

Commissioner Highberger requested first reading of Ordinance 8143 be pulled from the Consent Agenda for a separate vote.  It was moved by Chestnut, seconded by Amyx, to place on first reading Ordinance No. 8143, rezoning approximately 15.789 acres known as Lot 3 and Lot 4, Block 2, a Final Plat of Wakarusa Place Addition, from PCD-6Wak District (with restrictions) to PCD-6Wak District (with restrictions).  Aye: Amyx, Chestnut, Dever, and Hack.  Nay:  Highberger.  Motion carried.                                                                                                     (26)

CITY MANAGER’S REPORT:

During the City Manager’s Report, David Corliss said Commissioner Highberger had some questions about historic trends in assessed valuation which were addressed in the report.  Corrections were made to the building permit reports and new construction was substantially down this year compared to last year. 

He said Solid Waste crews were cleaning up increased loads of garbage from the student “move out” which presented a significant challenge to the Sanitation Division.  He was very appreciative of the work those crews did around the community. 

Finally, he said regarding the mill and overlay program, they were substantially rebuilding some of the sections that were decaying in the streets which was a wise investment of City resources, particularly on heavily traveled streets.                                                               (27)

REGULAR AGENDA ITEMS: 

Receive staff reports regarding: 1) entertainment venue licensing and 2) special use permits for drinking establishments and cereal malt beverage retailers.

David Corliss, City Manager, said Scott Miller, Staff Attorney, was responsible for research and review in preparation of the information on the entertainment venue licensing proposal.  John Miller, Staff Attorney, was responsible for the work of the draft information regarding special use permits.  Also, a memorandum was added from Chief Olin that talked about some of the additional resources that were put into downtown safety over the past few weeks.  Finally, correspondence was added that was received recently in trying to respond to some of the questions from the public and City Commission.  

Scott Miller, Staff Attorney, presented the staff report on entertainment venue licensing.  He said the proposed ordinance was a business licensing scheme aimed at entertainment venues as that term was defined in the ordinance.  Those venues were places that charged money for playing music or any other audio visual type of activities; having live music; patron dancing; allowing presentations of audio or visual materials with a D.J., disc jockey, moderator, to name a few.  The initial concern was the definition was too broad or was going to cover educational activities and things that happen when people presented Power Point presentations in board rooms, and activities of that sort, but there was an exception in the ordinance for that type of activity. 

The focus of the entertainment venue license was purely public safety.  Other cities that have this licensing scheme broaden it to deal with anything that could be considered a public nuisance such as crowds and traffic control.  The imposition on the front end of a licensing scheme were lighting requirements, security requirements, mandatory training for security officers, but none of that was contained in the ordinance. 

The sole purpose of the ordinance was to stop what would be perceived as a significant and persistent public safety problem of the venue.  He said in order to understand what type of problems, he read from the draft ordinance:

“Crimes that are considered in determining whether there is substantial criminal activity were:

(a)        Any crime involving the unlawful killing of another person.

(b)        Any criminal violation related to the unlawful distribution of controlled substances.

(c)        Any sex crime involving nonconsensual sexual activity or sexual activity of someone who is without the legal capacity to consent to such activity.

(d)        Any gambling offense occurring within or on the premises of the entertainment venue.

(e)        Any crime involving prostitution or the solicitation of prostitution.

(f)         Any crime involving brawling, physical violence, the threat of physical violence or rude, insulting or angry physical contact.

(g)        Any crime involving the intimidation of a witness.

(h)        Any crime involving the kidnapping or unlawful confinement of an individual.

(i)         Any crime involving intentional damage to the property of another.

(j)         Any crime involving the unlawful taking of property.

(k)        Burglary or aggravated burglary of any structure or vehicle.

(l)         Any crime involving the unlawful possession or use of firearms, explosives, or other weapons.

(m)       Crimes involving unlawful assembly, remaining at an unlawful assembly, or riot.

(n)        Unlawfully providing aid to a person who has committed or is committing a crime.

(o)        Any crime involving the interference with a law enforcement officer or firefighter in the discharge of his or her duties.

(p)        Any unlawful attempt to commit any of the crimes listed in this section.”

 He said they were not talking about littering, traffic violations, or DUI’s committed by a customers of a drinking establishment, but about things that could be tailored to meet the goal of addressing public safety concerns.  The people those activities would be measured for were employees, owners, independent contractors, and of course the patrons of the establishments that were licensed to be entertainment venues. 

He said there was virtually no obligation on the front end to do anything for a licensee other than apply for a license.  The license would last for 3 years and cost $25.00 for the three year period of time.  He said the direction he received from the previous City Commission was that they did not want this to be a moneymaking endeavor for the City.  The licenses were mandatory issued by the City Clerk and part of the licensing process was to check and see if there were any violations with the fire code or zoning laws.  If one could not be issued within 10 days, a provisional license was issued within that 10 day period.   The City Clerk and City Commission had no discretion in deciding whether or not to issue a license to someone who met the minimum criteria that was specified in the ordinance.  Once the license was issued, unless there was a problem at the entertainment either with an accumulation of certain types of offenses or substantial criminal activity that was disproportionate to the activity one would expect from such a venue, then nothing would happen and the entertainment venue did not need to do anything.  If substantial criminal activity took place, at that point the City Manager, or his or her designee, had the opportunity to send a Notice of Intent to Take Licensing Action.  Possible licensing actions would be to offer a probationary license which would have conditions and terms attached to it which were aimed at trying to prevent what was causing the problems that were perceived, or a suspension or revocation of the license. 

In the case of temporary licenses, if someone only had a temporary event, they could receive a one day license under the ordinance for $5.00.  The only possible remedy was rescission of that license and the only effect was to attempt to keep the person from getting future licenses for a period of time. 

If the licensee did not agree with the recommended disposition on the license, then a hearing panel was convened.  The hearing panel would consist of three people and one of the people would be someone else who was a licensee from an entertainment venue to be chosen randomly out of those who would be willing to serve.  The other two people were people appointed by the Mayor out of five people and two of those people would be appointed to make a decision based on the information the City would present by a preponderance of the evidence.  If that hearing panel decided that action should be taken, they could do what the City Manager proposed and impose their own judgment and do something more or less stringent than what the City Manager proposed.  If the entertainment venue licensee was not happy with the result of the hearing at the panel level, at that point, the full City Commission could be involved as a matter of appellate right.  If the City Commission’s decision was not lawful, court review could take place on the City Commission’s decision. 

Commissioner Highberger asked if there would be any reason in making this entertainment venue licensing applicable to businesses that did not have drinking establishment licenses.

Miller said right now the ordinance would be applicable to other places, like movie theatres.  He said he thought there was a reason.  If the justification for imposing this sort of licensing scheme was based upon crowds of people arriving in one area and causing harm to the public or the City, in that circumstance, based upon the minimal up front requirements, there was probably a justification for entertainment venue licensing.

Commissioner Highberger said he did not know of any incident where they had problems related to venues that did not serve alcohol and it seemed like the combination of large crowds and alcohol was always the contributing factor to some of the problems the City had.

Miller said part of the reason he drafted the ordinance the way he did was to make it clear this ordinance was not an attempt to impose a second and potentially illegal licensing scheme based upon the sale of alcohol.  The draft ordinance was based upon the entertainment activities and not the sale of alcohol.  He said as he noted in the memo to the ordinance he prepared, if the entertainment licensee did sell alcohol and lose their entertainment license, they could still sell alcohol, but could not host entertainment.

Commissioner Amyx said the 16 crimes Miller listed to be used to determine substantial criminal activity were against state law now.  

Miller said every single item he listed.

Commissioner Amyx said if any business had any one of those crimes happen, specifically an entertainment venue or a business with an alcohol license, he asked if there was no other procedure that would allow a business to not obtain a liquor license.  

            Miller asked if he meant from Alcohol Beverage Control (ABC).

            Commissioner Amyx said yes.

Miller said the indication staff had initially was concerns about things that took place in the business, things occurring outside the business, and the surrounding environs.  The indication staff received from the ABC staff attorney was the ABC was not interested and their letter suggested the City adopt a business licensing scheme. 

He said certainly individual offenders could be prosecuted and that was effective involving individual offenders.  He said when one business consistently had those individual offenders show up and impact the public safety then it was a policy decision the Commission would need to make in determining if this was the right solution to that problem. 

Vice Mayor Dever asked how this ordinance came to be drafted and did Miller consult other municipalities. 

Miller said over the last year and a half he researched this topic extensively.  He took a look at what other cities had done and was not fully happy with what other cities had done, given the direction he had been getting from the City Commission, so the proposed ordinance was drafted from scratch based on policy choices he thought reflected what the prior City Commission would be in favor of.  Most of the policy choices could be revisited, up to the extent the law allowed. 

Commissioner Amyx said if someone was found guilty of one of those infractions and the businesses entertainment license was pulled, that business was still able to operate as a drinking establishment, but could not have entertainment.

            Miller said yes, those businesses could conduct anything other than the entertainment activities.

Commissioner Amyx asked if entertainment was the problem.

            Miller said he did not know whether exactly one factor could be isolated out of several factors as the definitive problem.  He said in taking a look at criminal activity that crossed his desk everyday, he noticed certain entertainment venues had a highly disproportionate amount of criminal activity that was associated with those venues.  Other states had made that link before as well.  In a previous memo he quoted from a Pennsylvania case from the 1950’s where a very similar circumstance was observed by one of the courts.  He said he could not definitively say that entertainment was the one and only thing that was causing those problems because he did not know if it was entertainment, alcohol, or any number of things, but this particular ordinance gave a lever, the City was currently lacking and a way to control those activities. 

He said getting back to the previous question regarding if there was anything else the City could potentially do, from a legal perspective, the City could file an independent public nuisance action and that action would take a couple of years to run through the courts until a decision was made as to whether any individual activity met a given jury or judge’s view of what a nuisance was.  It was less definitive about conduct.  There were other things that could be done, but this ordinance had advantages and disadvantages, compared to other things.

Mayor Hack said once complaints were received and the City Manager indicated to the licensee that action against that license would be taken, she asked about the steps.

Miller said a first notice had to be sent.  Basic due process considerations required that anyone who was going to have their property rights taken away, be given notice and an opportunity to be heard.  Staff would provide notice of the City Manager’s proposed activity and the person who was a licensee could either accept that proposed activity, in which case time would pass, the period for requesting a hearing would pass and whatever happened would happen.  The license would be suspended or conditions would be placed on the license.  On the other hand if a licensee was not happy with that decision, and he expected very few people to be happy with that decision, the licensee could request a hearing.  A hearing panel was made up of two people for the board that the Mayor appointed, two citizens from the community, and one person who was already a licensee who agreed to serve any entertainment venue licensing that did not have a substantial conflict of interest.  They would have two citizens and one other person on the board that would have to explain things from a licensee’s perspective.  None of the language in the licensing scheme was mandatory when it came to imposing any remedy for problems.  The language was discretionary and the board or City Commission, even if a problem existed, could determine there was not a great link between the entertainment venue and in this circumstance it would not be appropriate to impose any type of license discipline. 

Mayor Hack asked Miller to explain the proposal for the board, its makeup, and the function of the board.

Miller said the board was five people, appointees by the Mayor, and were appointed on a yearly basis.  That board would not have any function other than to hear some of those hearings.  At any given hearing, two of the five people would be on the hearing panel, similar to civil service.

Commissioner Chestnut said Miller went through the hierarchy of the felony offenses, which was per se definition of what substantial criminal activity was, but there was also a general criminal activity that was included in this ordinance.  He said there were two sides to this.  If the board that was appointed would make a decision there was substantial criminal activity, regardless of whether there was a “per se” violation, they could still cite a violator. 

            Miller said yes, the way it was currently written.

Commissioner Chestnut asked if the City was able to substantiate incidences or activity within 500 feet of entertainment venues and the response was, right now, not accurately.  He said there had to be a process from a police reporting standpoint to make this ordinance work.  He said he was concerned because he did not think in this case, if they had a per se violation, they wanted to be vague about where those activities occurred. 

Miller said any of the constituted offenses that would constitute a per se violation, for example, the violation would be having three aggravated batteries that would happen inside the venue or in proximity within 500 feet.  He said for each one of those violations, the City would have to substantiate it was an employee, owner or patron and not just a patron who happened to patronize the business two months ago, but someone who was there who was at the entertainment venue on that evening or going away from the entertainment venue or waiting in line in front of the entertainment venue on that evening.  He said it would need to be documented by the police in every case.  He said when he was talking about training it was similar to what they had to do with the disorderly house ordinance that was passed.  They had to conduct training to the fact that police officers who investigate factors like minors in possession and party calls, they had to ask the additional question for the person who might be a minor in possession and ask why they were on the property.  Those things were not elements of the criminal offense they were investigating and not an element the criminal offense of aggravated battery, whether the person at the bar was a patron or not.  That would need to be documented within the police report in order for this to function correctly.  If it was not documented, then that incident could not be used against the entertainment venue licensing. 

Commissioner Chestnut said regarding the 500 feet, he guessed that in certain parts of town those were going to intersect one another and would have more than one entertainment venue where an area might intersect three, four or five different venues.

He said implementation was part of the issue that needed to be determined, especially if there was a particular offense with folks that had been to several of those venues as far as making the determination as to whom the culprit would be. 

Miller said the way the ordinance was written, it was the last place the person was present.  He said that was another function of the adjudicated process of the hearing panel.  The hearing panel would hear an explanation and it turned out that someone was in the neighborhood for an entertainment venue, but went wandering up and down the street for a couple of hours, and happened to be 500 feet within the last place they were present, the panel could take that into consideration and find that it was unreasonable to attribute that to the entertainment venue and the Commission did not need to take action on that situation.  On the other hand, if it was two minutes after leaving the entertainment venue because someone decided to go to their car, grab a gun, go back and shoot someone that might be a little bit more attributable to what happened in the venue.  

Vice Mayor Dever asked if Miller felt uncomfortable with the ability to have enough surveillance or have enough information to determine if there were many places close by each other.

            Miller said if there was a failure in that regard, the failure would not enable the City to take action.  If there was a failure in the investigative process, it was not held against someone in that regard.  Only if the City fully investigated the case could it be held against the entertainment venue licensee if the City asked the appropriate questions.

            Vice Mayor Dever asked, if in Miller’s research other municipalities were having difficulties determining who was at fault and what establishment might have been the last one visited.

            Miller said other municipalities tended to use much more general language than what he was offering.  He said most municipalities used language very similar to the public nuisance standard, which was any condition that was detrimental to the public’s health, welfare or well being.  He said he did not think, based on the comments of the previous City Commissioners and public comment that anyone would be comfortable with that language.  He said the language he used was more specific generally than what other cities did. 

            Commissioner Highberger asked about the rationale for using a newly appointed board for review rather than a court.

            Miller said he thought the boards could review any quasi judicial decision that was made on behalf of the City and licensing procedure.  He did not think there was any right to make a court make that decision on the first level.  He did not think the City could empower the district court to hear those actions.

Commissioner Highberger asked if it would work with the Municipal Court.

            Miller said municipal court was an option. 

Mayor Hack asked Commissioner Highberger if the board had a contested decision, it would go to Municipal Court rather than an elected body.

Commissioner Highberger said if the board had a contested decision that decision would go to Municipal Court on the first instance.  The City Commission could set up a scheme if wanting to take action against a license it could be done through Municipal Court as opposed to the board or City Commission. 

Miller said that idea was possible and other cities practiced that action such.  He said the 500 feet distance was an arbitrary number and if the City Commission felt another number was more appropriate, staff could insert that distance into the ordinance.  

John Miller, Staff Attorney, presented the staff report on Special Use Permits.  He said in addition to the entertainment venue licensing that Scott Miller was discussing, staff was also proposing the use of Special Use Permits for licensed premises in the development code.  In general that concept would be that licensed premises, as defined under the development code, would be required to receive a Special Use Permit with certain development and performance standards in order for that facility to be allowed to continue to be used as licensed premises at that location with those zoning regulations. 

Currently, under the development code the City had Special Use Permits for telecommunications towers and quality restaurants.  Staff proposed to expand the scope for Special Use Permits to include all licensed premises.  A licensed premise, in the development code, was defined as a premise with alcoholic liquor or cereal malt beverage or both by the individual drink as defined by Kansas statutes and was served or provided for consumption or use on the premises with or without charge.  This term included drinking establishment, Class A private clubs, Class B private clubs, and cereal malt beverage retailers all as defined by Kansas statutes and amendments thereto.  He said it did not include cereal malt beverage retailers for off premise consumption or retail liquor stores for off premise consumption.  It would only be licensed premises as defined under the development code. 

The State of Kansas has given municipalities authority to create Special Use Permits in zoning regulations.  The City of Lawrence’s development code under 20-1306 granted the City the ability to create Special Use Permits and that section of the code already listed a variety of conditions the Planning and City Commissions could consider when approving a Special Use Permit for those uses.  Part of the proposal was that for licensed premises there would be additional development and performance standards for a licensed premise in order to receive a special use permit to continue in operation at that location. The additional standards included:

• Occupancy determinations.
• Hours of operation.
• Impact on surrounding Neighborhoods.
• Overcrowding of land or undue increase in population.
• Security and crowd control.
• Exterior fencing requirements, if applicable.
• 3 year special use permit period for first time applicants.

5 year special use permit period for renewals.

20 year period for hotels/motels or similar structures.

He said a licensed premise would still be required to receive a City license through Chapter 4 beverage section and would still be required to receive a state license.  Alcohol Beverage Control would still have to grant a yearly license to all licensed premises.  He said that would be one of the conditions in order to qualify to receive the Special Use Permit. 

He said there were approximately 120 businesses currently with a drinking establishment and private club licenses and 16 establishments with cereal malt beverage licenses.    

Commissioner Amyx asked what the process was for the review of the Special Use Permit. 

John Miller said an establishment would need to go to the Planning Department and fill out a Special Use Permit application form.

Commissioner Amyx said if a business obtained a Special Use Permit and someone wanted to file a complaint, what procedure needed to be followed.

            John Miller said they would specifically look to the code, but generally under 20-1306, if the business or property was granted a Special Use Permit at that location and were in violation, the City could revoke the Special Use Permit and could not continue to do that activity at that location.  The City Commission had that ability, currently, under the development code, and with a licensed premise would be able to do the same.

            Mayor Hack asked about the procedure.

John Miller said the complaint would go to the Planning Commission, and the Planning Commission would make a recommendation to take away the Special Use Permit, and then would come to the City Commission for review, similar to the application process.

Mayor Hack asked if the complaint from a citizen or adjacent property owner would be filed with staff.  She asked at what point a complaint generated the review process.

David Corliss, City Manager, said staff had not had many complaints, but thought the complaint could be placed on the City Commission agenda to initiate the process where they would go to the Planning Commission and get the Planning Commission’s recommendation and then come back to the City Commission. 

He said staff looked at extending Special Use Permits, for example, the Lawrence Community Shelter, because it was approved for a certain date and then the date was extended and then picking it up on that extension date and reviewing it.

John Miller said in newspaper articles and in talking with other communities, if there were violations of the conditions of the Special Use Permit they would go through their code process and withdrawn that Special Use Permit and not allow them to do that activity at that site.

Mayor Hack asked if there was a certain trigger that brought attention to staff to put it on the City Commission agenda. 

John Miller said as an example, if the Planning and City Commissions agreed on particular hours of operation and it came to staff’s attention they were in violation of those hours of operations that were granted under the Special Use Permit, and staff would take that information and bring it to the City Commission.  Then it would potentially take away their Special Use Permit based upon their violation of hours of operation.  Those conditions were creating proposed additional performance standards.  If they were in violation of what was currently under 20-1306 or what would be in the proposed additional standards, then staff could come back to the City Commission and address those violations.  

            Commissioner Amyx said in looking at a special use permit, there was the opportunity for the owner of that establishment to abate the problem prior to going through the process.  It gave an appointed or elected body the final decision when in truth it should be a court matter.

John Miller said there was an opportunity for a licensed premise with a Special Use Permit to abate the problem.  He did not know if the City would deny someone who had applied and received a Special Use Permit, the ability to abate the concern that was raised.  That abatement might be subject to the Planning and City Commission’s review. 

As far as the second part of the question, there might be additional standards that would be unrelated to public safety issues and there would not necessarily be a similar public offense issue involved. 

Commissioner Amyx said the problem he had with a Special Use Permit was if a place was required to have a SUP and one of the conditions might be violated an elected or appointed body could simply slap them on the hand and tell them not to do it again and did not have a lot of teeth.

John Miller said from a policy standpoint, one potential way to resolve that issue would be to reduce the number of years of the Special Use Permit.  He said that was from a practical standpoint from staff’s perspective in processing the number of Special Use Permits. 

Commissioner Amyx said if staff was hit with 120 Special Use Permits and staff had to come up with language that would govern each one of those SUP’s along with City Commission review, the language was going to change during renewals which seemed like a lot of work for staff.

John Miller said there were initial discussions about the workload for staff.

Vice Mayor Dever asked if the additional standards listed were unnecessarily vague and could those standards be questioned by people who would be subject to those standards.  He said in reading the standards, those standards seemed open ended.

John Miller said he did not think the standards were overly vague.  Some of those conditions came out of the beverages section where staff had attempted to provide conditions on the premise.  He said in this draft, he tried to see what they had currently that they might be able to convert into a standard for a Special Use Permit.  He said he reviewed other communities standards to see what other additional standards those communities had for Special Use Permits in general and special use permits specifically related to a licensed premise.  He said he took the occupancy issues from the City of Olathe.  He said all of those conditions were things the City Commission could consider and were not conditions the City Commission or Planning Commission would impose.  He said if there were 136 potential licensed premises, there might be a variety of conditions depending upon location, business, and those types of things. 

Mayor Hack asked what staff’s recommendation was on imposing the special use permit and when would it apply to existing or new businesses. 

Corliss said that needed to be discussed on the Planning Commission level.  He said given some of the needs as far as the procedural requirements it made sense to phase it in over time and would eventually apply to existing establishments at the time of license renewal or some other triggering event.  He said there were some legal requirements that had to be met. 

Ron Olin, Police Chief, presented a report on the Summer Safety Initiative (SSI).  He said staff had continuous discussions, over time, on how to best address the issues downtown.  One of the solutions was throwing resources at the issue.  He said they were in discussions continuously with the City Manager’s Office on how to use those resources and perhaps restructure their patrol assignments to make another shift or some sort of a change in the way they did business, but realistically, staff could not change the way they did business.  The patrol shifts today basically occupied more than 80% of their time and any time there was that type of saturation, there was very little time for self initiated activities and also did not have time to take from those shifts and create a new entity unless they put an undue burden on the remaining officers on those shifts.  He said staff was looking for the best time for some type of test and found it at the end of school with their school resources officers being freed up and with the creation of the Neighborhood Resource Officers.

He said staff decided to put together a 10 officer team and basically ask for volunteers.  He said Special Projects Sergeant, Dan Ward, immediately volunteered to lead the endeavor.  They transferred all the School Resource Officers to Sergeant Ward, one of the Neighborhood Resource Officers, two detectives who volunteered and an officer out of the drug unit.  They had a core group of 10 people and it was their intent to have those 10 people do a six weekend assignment for 12 days, 96 hours, during the summer to see whether or not they could impact and make a difference downtown.  He said it was an interesting point that they were not able to maintain the integrity of the 10 officer team between sicknesses, vacation, family emergencies and training time they had to use 17 people to staff those 10 positions during the 6 week time period from June 29^th to August 4^th. 

They also received assistance during this initiative from three outside agencies; the Douglas County Sheriff’s Office, the Division of Alcohol Beverage Control from Topeka, and a Kansas City area law enforcement agency. 

He said SSI began on each Friday and Saturday night starting on the 29^th of June and went out on early evening hours.  It was their intent to get out of cars and not use traditional patrol, but to use foot patrol and bicycle patrol until the entertainment venues heated up, and then transfer from the foot patrol back into traditional patrol cars to try and see how many ways they could impact neighborhoods, venues, and conduct bar checks. 

During their 96 hour deployment, 10 officers wrote 226 Notices To Appear or made custodial arrests within those 226 actions.  They had 207 traffic enforcement actions during that time period and conducted 169 bar checks in 55 establishments throughout the City.  He said staff was trying to put together more analytical and intelligence types of information for internal use, but anecdotally there were interesting things from his perspective from the officers’ observations on the street. 

First, during the early hours each evening downtown, the officers were extremely overwhelmed with positive citizen interaction.  The citizens said they were happy to see the officers and the officers were able to interact with families and children and able to interact with people downtown.  He said he thought the concept of having a safe downtown was essential.  Anecdotally, staff also had comments from the midnight shift patrol officers because those officers were happy they had backup.  The midnight shift officers, in spite of the initiative were also doing routine calls, normal activities, bar checks, traffic stops and making arrests.  It did not slow down the regular activity that was going on routinely on a Friday or Saturday night. 

He said his staff was pleased, but thought it was merely coincidental there was no street crime reported during the initiative.  They did not know whether they had impact because of their presence, but it did work out that way.  It was expressed by the people they arrested for possession of firearms they were extremely agitated when arrested and when they found out what the bond and fine was for possession of a firearm near a bar, lightened up and said it was less than the cost of the cover charge in some of the bars they frequented. 

He said of the 55 establishments bar checked, many of those bars and drinking establishments did not have problems and did not routinely call for police service.  There were a number of bars that were being run appropriately. 

He said one entertainment venue asked for consultation with the Police Department on how to reduce the possibility of violence and to be better neighbors.  He said he thought that was a very pleasant point and his staff worked with that bar to try to reduce their issues and the neighbors’ issues and they were still waiting to see if that was a successful intervention.

He said they noticed that there was a dramatic decrease in the numbers of minors in possession (MIP) in establishments after the first weekend of the initiative.  The bars themselves actually tightened up and did a good job of reducing MIP’s inside the buildings.  Oddly, there was a dramatic rise in MIP’s in neighborhoods and complaints in adjacent areas.

He said during SSI, officers observed, in very limited numbers, open drug use and gang activity inside establishments.  Because of the numbers of officers available and number of patrons in circumstances in which they encountered those situations, they chose not to create a riot and did not take any enforcement action.  It was telling they were able to observe those kinds of activities. 

He said during the context of enforcement activities, any time they encounter someone from out of town, they ask first if they had any reason to be in Lawrence.  If the answer was no, they continued to try and ask questions such as, “Why are you here.”  He said oddly enough, almost all of the people who responded to the questioning said either that they liked Lawrence or it was safe in Lawrence.  He said that was their reason for being in Lawrence for an entertainment venue. 

Their program cost approximately $33,000 and they tried very hard to do flex time to minimize the expenditures to the City budget and did not permit any overtime except for report writing in cases where major cases were made and reports had to be forwarded to the District Attorney in an immediate fashion. He said the $33,000 did not include the costs of the outside agencies that assisted Lawrence in this endeavor.  He said they appreciated their assistance. 

Commissioner Highberger asked Olin to summarize his conclusions. 

Olin said with the overall conclusion, they were not going to address this issue only with police officers and police presence in any one location.  They needed to have cooperation from owners, patrons and the ability to make an impact beyond simple enforcement.

            Mayor Hack called for public comment.

Rob Farha, owner, The Wagon Wheel, asked if the 120 drinking establishment licenses included places like Applebee’s and Chili’s because those establishment had the same type of license as a small owner.  He said if this entertainment venue licensing passed, he asked where the money went to.

Mayor Hack said the $25.00 would reside in the City Clerk’s Office because of the additional staff time.

Farha said if the entertainment venue licensing did pass, he would like the City Commissioners and Mayor to consider that money going to where the resources were needed, to the Police Department.  Also, the “entertainment” word was thrown around loosely and the types of entertainment.  He said his statement might bring smirks to faces, but thought it was very serious as well, which was the 6 or 7 home football games was a large entertainment venue that had plenty of alcohol and if the drinking establishments had to obtain an SUP, then it might be appropriate to require an SUP at that level as well.  He said football games was another resource for income because the City’s officers needed to be at those games and did not get paid for that extra time.

Peach Madl, Sandbar, said Olin’s report was probably the nicest thing they heard about their community downtown in a long time because it was a safe and fun place.  Lawrence was a tourist destination and she was proud being in downtown Lawrence.  She hated it because there were one or two bad actors that were being focused on and it was hurting the rest of the establishments.  She urged the City Commission to do what they could with existing laws to stop the bad actor or the people that were causing the problems and protect the rest of the industry. 

She said she thought about how her business was different than other businesses.  As a tavern owner, since she has conducted business, the zoning changed to C-3 with a zoning restriction.  If she ever closed her business down and reopened, she would need to abide by the 55% food sales requirement, but the building was too small and she would never be able to sell 55% in food sales.  As a tavern owner she could not use the sidewalk like other restaurants and bars could.  She said with the smoking issue they had the problem of facilitating their guests who would like to go outside and have a cigarette plus maintaining the occupancy and making sure those people who go out for a cigarette could get back in to the establishment.  If those people smoking did not return in a few minutes, she had the obligation to let someone else into her establishment.  They were only allowed 49 people in the Sandbar at any one time. 

She said because she was a tavern owner, the State of Kansas required that she could never have a DUI, never have a morals charge, gambling, or else she would lose her ability to re-license.  Because she was a tavern owner, due to this proposed legislation, the random acts of other people could place her livelihood at risk.  She asked how they could create an environment where responsible business people would want to conduct this business.  It was a great business, but they were adding regulation and risk where they would only encourage the major risk taker to participate.  They wanted the respectable businessman to be in their industry.   

She asked the City Commission to do what they could with existing laws, to take care of the bad operator and not affect the other businesses that were working very hard and were a very important part of the City of Lawrence, tourism and the students and residents.

Terry Taylor, Independent Promoter, said a particular movie theater alleviated its weekly problems with juveniles causing problems in their parking lot, breaking into cars, and other mischievous things by hiring a guard from Milspec Security and the theater did not fall into a licensing category.

He said he had been an independent promoter in Sioux Falls, South Dakota, in which the City enforced a dance license, similar to what the City of Lawrence was proposing.  Any place with live music had to apply for a license every time they had a live band or DJ for a cost of $5.00 and gave Sioux Falls the power to regulate those clubs.  The three main establishments in that City closed down because those establishments were abused by police presence and citations issued.  Like Downtown Lawrence, a lot of the clubs were associated and it was hard to differentiate whose patron was going to which club and where.  After a year and a half, the three clubs closed down which killed the music scene, entertainment scene, and everything in the town.  He said they tried to restart the entertainment scene, but they could not get any cooperation.  Two years after that licensing was passed, the public revolted because there was no entertainment in Sioux Falls and the City had to overturn the act.  It was in 2000 and seven years later the City never rebounded from the entertainment aspect of the town, but there were still other types of businesses in their downtown area. 

He said he moved to Lawrence because he loved the culture in Lawrence and thought of all the places in the world, losing entertainment would never happen to Lawrence because of its art and entertainment.  He said he felt like he was reliving the same situation.  He moved to Lawrence with a couple of friends who never intended to go to college but were at KU now, also worked in Lawrence, and loved it.  He said he felt like he was having a déjà vu about what he went through in Sioux Falls. 

He said his first year of living in Lawrence he lived on 19^th Street close to campus and that first year his house and car was broken into, no where near downtown.  He said he did not drink, worked a lot, and did not associate with many people.  He thought they were random acts of people wandering the street causing vandalism.  He thought there was trouble all over the City, not just downtown, and to enforce something that centered on entertainment was really broad and pigeon holing something that did not need to be in town. 

Brad Ziegler, owner of some drinking establishments and restaurants, asked the City Manager if the City had ever brought a public nuisance suit for any bar in town.  He said according to the ABC, they would get involved if there was a criminal conviction and would assist the City in denying the license.

Corliss said one time about 35 years ago the City Commission wanted to close down a bar and directed the Police Chief to grab a license off the wall of a drinking establishment and closed down the bar and the City was introduced to due process that way.  He said he did not think, in recent history, the City had tried to bring a public nuisance suit against any bar.  There was a state statute that provided for a City to initiate the general nuisance action.  He said as Scott Miller indicated, it was likely to be a months, if not years, consuming process and staff was not certain about its outcome and it might be costly as well.  It was more likely to be costly in time as far as that type of action.  Staff’s recommendation was to give the authority for licensing and possible license revocation to the City Commission where they had more control over the time and outcome.  It all had to be conducted under various legal premises and to some extent some of the items that would fall under a nuisance action would be similar to the ordinances that both John Miller and Scott Miller had drafted.  Staff had some parallels as far as the disorderly house ordinance where staff worked with property owners where they might be able to get them in Municipal Court for different citations.

Ziegler said he thought the public nuisance suit would be a good place to start because either way, the City was going to end up in court.  He said everyone in the room wanted the people causing problems out.  He said the owner of the particular establishment had fought the City for a long time and was going to fight the City to the end.  He did not think this licensing scheme would get rid of the problem the City was dealing with which was people coming into the downtown and causing problems outside the establishments. 

If there was a way to go after whoever the City Commission deemed as causing the problems with a public nuisance, he thought it would be worth exploring and they should at least try it because either way they were going to be in court, whether they did it now or later.  He said all of the establishments were being lumped in and getting a lot of bad press.  He thought some of the numbers, in the newspaper, were skewed on the violence downtown because he did not think it was as bad as some of the reports showed and the newspaper was selective in what was chosen to report.  He said Lawrence had a great downtown and their industry was valuable to the City.  It was sad to see their industry being dragged through the mud and hopefully there was a better solution than this ordinance.

David Johanning, Manager of the Sandbar, said he was at the Sandbar all the time and very rarely he felt unsafe.  A lot of it had to do with the Police Department and thought they were doing a wonderful job.  He said when he saw the effects of the downtown initiative with all the police officers he thought it was a very positive thing.  The Sandbar had the ABC come through several times and he was not worried because they were doing nothing wrong.  He said that was where he thought having a license might have an effect on the Sandbar because they were not doing anything wrong.  He said if a business was not doing anything wrong, that business should not need to worry about it.  He said he did not know how to solve the issue they were having and thought the issue was limited times and was not as big of a problem as the way he saw it. 

Mayor Hack said Commissioner Amyx had another option to discuss.  She knew staff had not had a chance to look at this option and there might be combinations of things the City Commission could address.  She said the option went back to what Brad Ziegler was suggesting.

Commissioner Amyx said he took the opportunity to work with someone away from City Hall to not burden staff with additional information that was going to be provided to the City Commission.  He said the disorderly house ordinance was interesting from a business standpoint, not specific to any business, whether it was his business or any other business.  If the goal was to control a disorderly business, procedure needed to be set forth that gave the flexibility to deal with a business on an individual basis.  He had the opportunity to visit with several people in the bar industry.  He said quite a bit of work had gone into the disorderly house ordinance and you could almost change the name from disorderly “house” ordinance to disorderly “business” ordinance.  He said a disorderly business ordinance would do a lot of the same things rather than setting up a Special Use Permit licensing ordinance.   He said they could set up an abatement program that allowed conditions to be set on that abatement time period if a violation occurred.  He said staff recommendation would be needed, if the City Commission wanted to consider this item, to the types of penalties that could be put in place to revoke an individual’s ability to stay in business.  He said setting up a panel to review this issue through the City’s Director of Legal Services and set in motion conditions that could be placed on that business for a certain period of time on through to the municipal court stage.  He said there were fines that could be imposed, but would not go after any particular business, but looked at businesses in general.   He thought it was important that if the disorderly business ordinance was something the Commission wanted to review, that a panel be set up with people in the community to review and bring their recommendations back in a few weeks.   

Mayor Hack asked if this suggested disorderly business ordinance was posted on the City’s website.

Corliss said he did not understand Commissioner Amyx’s direction to post the proposed ordinance, but staff could.

Mayor Hack said she had concerns about putting the fate of businesses operating and fulfilling all of their legal requirements, in the hands of elected officials in what could be a political statement to revoke or continue licenses.  She said she did not think future Commissioners would have the agenda to do that and hoped that they would not, but she was concerned about that step in putting it in the City Commission’s hands as opposed to perhaps a body that could be made of appointed people, licensees, and legal staff.

She said she also had concerns about the timing of the process. She did not know how long from complaint to a resolution.  She assumed there would be a lag time, but would like to shorten that lag time up.

She said she believed licensing had some real value because it gave the City some tools, but it placed the City in a very awkward position for the City to be in on either side.  She was most concerned about public safety and the law enforcement personnel and they had some situations where neither was guaranteed. 

Overall, she agreed that downtown was a safe, wonderful place to be.  She knew there were instances where downtown was not safe and was unfortunate that was the umbrella under which they had to look.

Commissioner Highberger said he thought everyone agreed there was a limited problem and needed the right tool to address a problem without having the negative effects on everyone else, but the Commission had not figured out what that tool was yet.  He said he called the Mayor in Athens, Georgia, which was another big music town, to ask what that town did regarding this type of issue.  He said that town could take action on a liquor license.  He said they could go to their municipal court judge, present the facts, and have a license suspended or modified.  If the City of Lawrence had that authority under state law, he did not think this would be an issue. 

He said Commissioner Amyx’s suggestion was worth taking a look at after staff review to see if that proposed ordinance would be potentially the right tool for the job.  He was not interested in looking at Special Use Permits at this point.  He was not interested in imposing another license on anyone because they had too many licenses already.  He said Scott Miller took a stab at what the Commission directed in making a minimal impact on people doing their jobs and doing it right and trying to give the Commission the tools to take action when people were not doing their job right. 

He said he wanted to wait to see staff review of Commissioner Amyx’s proposal before moving forward.  He said over regulation could kill the music scene downtown, but not taking action and having the perception that there were guns downtown could also kill the music scene downtown.

Commissioner Chestnut said this was a difficult issue because public safety had to be one of the main commitments he had as a Commission, yet making sure the Commission created an environment that was conducive to business.  He said he would like to look at Commissioner Amyx’s proposed ordinance.  He said regarding the special use permit, he was having a difficult time seeing what value that added in the process.  He said there was value in the entertainment venue license, but there were two things he found problematic. 

One issue was the general definition of “substantial criminal activity” and the per se definition which created a significant broad brush latitude that he was not comfortable with as far as how that was administered.  He said it went back to Mayor Hack’s comments that it left a lot of room for interpretation that could be adverse in the future. 

He said secondly, before the Commission considered anything in the entertainment venue arena, the Commission needed to have a process by which they would take incidences and sort through them.  He was not comfortable with the 500 feet limit and did not know where it was going to go.  He said they continued to struggle with this because everyone agreed conceptually in trying to get something done, but did not know how to do it without creating adverse circumstances for the bar owners and also promote better safety.

He agreed with Commissioner Highberger that if it was a new and improved proposal by Commissioner Amyx, he would like to see what the ordinance had because it provided a broader, overall business and got away from targeting a particular business.

Vice Mayor Dever said he was not in favor of any more regulations at this point in time and would like to look at Commissioner Amyx’s proposal.  He thought they needed to summarize to the public what tools the City had at its disposal to help solve this problem currently and make sure that everyone was clear there were not a lot of things they could do right now to solve this problem.  There was a perception the City was doing nothing, but that was not the case because he thought everyone knew there was not much to be accomplished with what tools the City had. 

He also agreed that they should consider prosecuting people, even though it might take awhile and might not come to a conclusion in a short period of time. He said at least that type of activity might reduce the likelihood of this happening in the future.  He said if they could attack the problem instead of throwing a big blanket over the entire industry it would be more beneficial in his eyes than creating more regulation.

Commissioner Chestnut said he was perplexed in trying to figure out where the possible avenue with the ABC left them because it was clear from his reading in ABC’s correspondence that they were guiding the city in this direction and by the body of the document said there was no recourse outside the licensed premise.  He said that was an unworkable situation in this particular circumstance in a concentrated area with a lot of entertainment venues.

There had been other comments and letters received in recent days that said there were other things that could be done and part of it was raising the level of visibility about the interaction the City was having with the ABC on particular situations.  Maybe that dialogue needed to be increased and maybe that had been pursued diligently.  He was confused about the ABC’s position.  The City needed to give something else to law enforcement, but did not know what it was.

Commissioner Amyx said he wanted Chief Olin and members of the public to understand that public safety for people that go to the entertainment venues was the highest on his list, but he wanted to make sure the officers sent in any situation were protected.  He said he would like Olin’s response to anything that might come forward from documents he presented or from staff.  He said it was important to understand the Police Department were the people who had to carry out any legislation passed.

Mayor Hack said public safety and safety of the City’s law enforcement personnel was high priority.  If it came to a situation that whatever the Commission chose to do and it was not correcting the problem and they continued to have extremely dangerous circumstances, she would not be unhappy coming back with some much stiffer consequences.  She said the City could not continue to place law enforcement officer’s lives in jeopardy, but thought they were in some cases.      

She said she would like to accompany staff to the Alcohol Beverage Control Division to see what page they were on. 

Corliss said in addition, staff needed to take a look at existing licenses that were up for renewal and when there are violations, the City would file against those licenses.  

Mayor Hack said she would ask staff to review what Commissioner Amyx was proposing and post the document on the City’s website.   After everyone reviews the document, she would like to review the document with staff.

Commissioner Chestnut said he wanted to echo Commissioner Amyx that they wanted to find the right circumstances to support the law enforcement.  He spoke to a couple of officers and they described the scene and something needed to happen.  He said regarding the renewing of licenses, he encouraged the Commission to make the community aware of what was coming up and what the situations were to get more public comment at that level.               

Commissioner Amyx said he and staff needed the opportunity to discuss the legal aspect of his proposed ordinance before posting the ordinance on the City’s website.              (28)

Steve Stamos, Fairfield Residential, said they were asking the City Commission to table or defer the related items regarding the Southeast corner of 31^st Street and Ousdahl Road.  He said there were issues that recently came up and they were working with staff, but there were still unresolved issues.  He said one of the main issues was that they were purchasing the entire property and now they would need to be dedicating all of the right-of-way along with doing all of the benefit districts.  He said they still did not have the zoning for the southern half of that area, but they had developed a new site plan and would like to come back to the City Commission’s agenda as early as possible.  He said they were trying to meet the September 5^th submittal date for the October Planning Commission and come back to the City Commission in November with the entire site.  He said worst case scenario was their submittal date might slip, but they could come back to the Planning Commission in November and the City Commission in December.

Moved by Amyx, seconded by Dever, to defer the consideration of the items on the southeast corner of 31^st and Ousdahl Road until the Planning Commission had the opportunity to consider the revised plan.                                                                                                      (29)

Consider approving Z-11-28-06, a request to rezone a tract of land approximately .954 acres, from RS10 (Single-Dwelling Residential) to RS5 (Single-Dwelling Residential), located at 523-543 Rockledge.

Mary Miller, Planner, presented the staff report.   She said this item was heard by the Planning Commission in December 2006 and it voted 5-2 to recommend denial of the rezoning request.  The original plan presented to the Planning Commission, at that time, was for the development of 6 residential lots.  The item was forwarded to the City Commission and the applicant requested that it be returned to the Planning Commission so they could consider the revised concept plan, which was for five residential lots. 

The neighboring property owners were opposed to both the six and five residential lots.  However, the Planning Commission voted on July 25^th, 2007 by a vote of 4-2 to recommend approval of the rezoning request.  The neighbors’ opposition to the development was primarily based on their concerns with the negative impact it might have on the character of their neighborhood due to the increased number of houses. 

She said Planning recommended approval of the rezoning based on the types of land use in the area, but also had recommended conditions be placed on the rezoning to allow it to be compatible with the existing development.  She said a valid protest petition had been filed regarding the rezoning and a super majority vote would be required by the City Commission to approve the rezoning.  The applicant had been working with the neighboring property owners.  She believed they worked out a compromise which was in her memo.  The applicant agreed to rezone to RS-7 using the lesser change table.  This zoning district was more similar in size of lots to the RS-10 and the development would be more compatible, therefore many of the conditions could be removed from the rezoning.  The conditions that would be remaining could be the peripheral set backs being 10 feet because those would be the same as the existing development and the building envelopes be shown on the preliminary plat.  Those conditions could be met at the preliminary platting stage and would not need to be applied to the zoning.  Conditions that could be removed would be the restructuring to 3 curb cuts since they have four lots and have four curb cuts and RS-7 lots usually have their own curb cut and the one additional curb cut probably would not be a large issue.  She said previously the development was restricted to five lots; however the size of the development itself would be impossible to develop more than four lots in an RS-7 zoning so that condition could be removed.  The landscaping condition where they were requiring streetscape landscaping was to ensure to maintain the streetscape of the neighborhood.  However, since they were rezoning to a more compatible lot size, it would be more compatible that way and the landscaping requirement would not be required.  The City legal staff informed her that the City Commission could approve the rezoning to RS-7 and change the conditions with a super majority vote.

Commissioner Amyx asked if this constituted the substantial change and would have to go back to the Planning Commission process.

Miller said no, that was what she asked the legal staff.

Commissioner Highberger asked the net square footage of the property.

Miller said the net square footage of the property was .954 acres and the right-of-way had already been dedicated so it would be the same.

Commissioner Highberger asked if no more than four RS-7 lots could be at that location.

            Miller said yes.  It was because the minimum lot width in RS-7 had to be at least 60 feet wide and the amount of width for the property there would be no way to get more than four lots in.  The depth would be enough to where they would need more than 7,000 square feet, but could not place more than four lots at that location.

Commissioner Amyx said regarding the .954 acres, he asked if those lots would be around 10,000 square feet or less.    

Miller said the applicant needed to address that question because the applicant would be changing some of the lots and she had not seen the exact concept plan to go along with the compromise.

Commissioner Amyx said those lots could not be compatible with the lots to the north and east along the hill because those were good sized lots.

Miller said many of those lots were combined and those lots would not be exactly the same, but those lots would be compatible with the existing zoning.

Jeff Arensberg, applicant, presented the plan on the new in-fill development on Rockledge.  He said they wanted to express their sensitivity to the surrounding property owners and the concerns of the Planning Commission.  He said they understood that any time new development was proposed for ground that had set vacant in an established area for many years, there was always a chance, without careful consideration of its effects, the wrong approach might be proposed.  He said they wanted to ensure the City Commission their project was one that would enhance the neighborhood, conform to its existing character, and make sense in its overall place in the area.  He said they were not the type of developers who desired to build anything other than a well thought out quality project that would be desired in the market place and attractive to the neighbors.  He said they brought a proposal that had been logically conceived based on input from the Planning Staff, the Planning Commission and the neighbors with the utmost concern for compromise to make the development one that fit in and compliments the character of the neighborhood.

Although the current zoning was RS-10, which was zoned in 1935, they felt that developing it as this type of property went against the character and tone of the surrounding properties.  There had been many changes to the surrounding properties and to Rockledge Road since the property was platted and zoned.  Considerable commercial and multifamily development had occurred over the last several years that made the current zoning obsolete and Rockledge had since become a connection between I-70 and Highway 40.  History had been given by the adjacent property owners and the planning staff that Rockledge Road was a gravel road during the time the property was zoned and that was prior to I-70 being constructed.  In the 1950s Rockledge was made a connection road for the new I-70 Turnpike to Highway 40.  This obviously increased traffic on the street and at that time was zoned RS-10.  Today it would never be zoned as such with the commercial properties across the street and the considerable amount of traffic on Rockledge.  While the size of the land lent itself to more units they were proposing, they felt as though their plan struck an appropriate balance between the surrounding residential zoning and the extremely dense and highly commercial apartment and hotel developments across the street.  He said by developing a size appropriate single family project, they could successfully buffer the intense commercial and apartment projects across the street.  From the single family homes that abut their ground to the west in which they were in the process of a major renovation of a home and enhance the value of existing properties on Rockledge while bringing quality housing and new residential vitality to the area.

He said they proposed taking a stretch of land that had languished for years in a state of neglect overgrown with weeds, trees and brush, and turning it into a place where residents could enjoy an exciting type of infill development in this convenient location.  As referenced before, there would always be concerns, particularly from existing residents, when infill development was proposed, however they felt this project exemplifies the definition of a thoughtful approach with a true sensitivity to compromise that made a perfect fit for the character and future stability of the neighborhood. 

He said they had a lot at stake on what was going to be done on this property and were in the process of renovating a 5,000 square foot home directly behind the subject property that was originally built in 1930.  Just like the grounds, the house had been neglected and their goal was to bring it back to the type of property it deserved to be.  He said they wanted to make a return on their investment, which had considerable risks, but were looking at much more than profits.  He was committed to keeping the development as a quality and viable place to live and to enhance the area that coincides with the surrounding properties and strengthened the vitality of the area. 

Nathan Kolarik, Rockledge resident, said he would like the developer or architect to comment further on the setbacks foreseen for this development, both front and back as well as to the sides.  

Miller said the front yard setbacks were the same for RS-7 and RS-10 districts which was 25 feet in front and 10 feet on the peripheral and either side.  The interior side yard would be 5 feet and the outer side of the four lots would be 10 feet.

Vice Mayor Dever said in looking at the plat, the road was not in the center of the right-of-way on Rockledge.  He said the right-of-way could not be developed and the front setback was going to be fairly substantial because of the existence of the right-of-way.

Miller said the rear set backs would be 30 feet.

Commissioner Amyx said there had been substantial improvement in the plan.  The property owner and developer took the concerns raised last year into consideration because they wanted to be good neighbors in developing that property.     

Moved by Amyx, seconded by Chestnut, to overrule the Planning Commission’s recommendations and approve the request for rezoning as amended (Z-011-28-06) of approximately .0954 acres, from RS10 (Single-Dwelling Residential) to RS5 (Single-Dwelling Residential.  The property is located at 523-54 Rockledge; and, direct staff to prepare the appropriate ordinance, subject to the following revised conditions:

1. Staff recommends conditioned zoning with the following conditions:

a.   Additional setbacks required: 10’ peripheral side yard setback (southern side of Lot 1 and northern side of Lot 4).

b.   Building enveloped must be shown on the plat.

2. Recording of a final plat prior to publication of the rezoning ordinance.

Motion carried unanimously.                                                                                           (30)

PUBLIC COMMENT: None

FUTURE AGENDA ITEMS:

8/21/07	●         No meeting
8/23/07 Thursday	●           9 a.m. Short Meeting followed by study session with Library Board
8/28/07	●           Convention & Visitor’s Bureau / National Heritage Area Proposal ●           6^th and George Williams Way intersection improvement special assessment public hearing
TBD	●           Chapter 7 of Comprehensive Plan (Industrial Chapter) ●           Staff report on Intangibles Tax and Impact Fees, requested by City Commission on August 7

    (31)                                                                 

Moved by Chestnut, seconded by Amyx, to adjourn at 9:00 p.m. Motion carried unanimously.                                                                                                                                                             

APPROVED:                          

_____________________________

Sue Hack, Mayor

ATTEST:

___________________________________

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF AUGUST 14, 2007

1. Sale of surplus equipment –  Vehicles on Gov Deals.

2. Contract – Change Order No. 1- LRM industries for KLINK Resurfacing, 6^th to Yale & Irving Hill to 23^rd.

3. Contract – CAS Construction, $100,000 for preliminary field investigative services for Wakarusa Water Reclamation Facility.

4. Contract – Black & Veatch/Grimm Construction, $134,100 for Wakarusa Water Reclamation Facility & Four Seasons Pump Station & Excess Flow Storage Facility.

5. Contract – Restoration & Waterproofing Contractors, $266,059, 1^st year repairs to Kaw Water Treatment Plant.

6. Purchase – GS Robins Chemical Co. for $49,500, 6 month supply of Polymer

7. Bid – Laird Noller Motors for $15,439.50 for 1 half ton pickup.

8. Bid – KC Bobcat for $28,721.70 for 1 skid steer loader.

9. Ordinance No. 8141- 1^st Read, rezone 1.623 acres from PRD-2 to OS, Wakarusa Place

Add.

10. Ordinance No. 8132 – 2^nd Read, (CPA-2007-01) to Ch. 14-Specific plans of Horizon 2020.

11. Ordinance No. 8129 – 2^nd Read, Public Hearing- Maximum assessments for development of Oregon Tail Park.

12. Ordinance No. 8139 – 2^nd Read, 2008 City of Lawrence budget.

13. Ordinance No. 8131 – 2^nd Read, Solid Waste rates for 2008.

14. Ordinance No. 8133 –  2^nd Read, Water service & sewage disposal rates for 2008.

15. Ordinance No. 8134 – 2^nd Read, System Development Charges for water utility &

wastewater utility connections. 

16. Ordinance No. 8140 – 2^nd Read, property tax revenues for 2008.

17. Resolution No. 6724- Cnty Commissioners determine “island” annexation, 536.88 acres

S of Wakarusa River near intersection of N. 1175 & E. 1600 Roads, not hinder or prevent growth &             development.

18. Resolution no. 6734- Transfer funds, equipment reserve to transportation.

19. Resolution No. 6735- GOB Temp Notes, Series 2007 & GOB, Series 2007-A.

20. Amendment – Landplan for TA-06-11-07, 20-403, “Quality Restaurants” in IL District.

21. Amendment – TA-06-12-07, Access Standards of GPI District.

22. Variance – Private sanitary sewer service line, Lot 2 Greenbrier Addition.

23. Variance – Private sanitary sewer service line for 1105 & 1117 West Hills Pkwy.

24. Communication – Freedom’s Frontier National Heritage Area.

25. Ordinance No. 8142- 1^st Read, rezone 2.186 acres from PRD to PCD, Wakarusa Place

Add.

26. Ordinance No. 8143- 1^st Read, rezone 15.789 acres from PCD to PCD, Wakarusa Place

Add.

27. City Manager’s Report.

28. Entertainment venue licensing & special use permits – Drinking est. & cereal malt beverage retailers.

29. Defer - SE corner of 31^st & Ousdahl Road until the Planning Commission considered revised plan.        

30. Rezone (Z-11-28-06) – .954 acres, RS10 to RS5, 523-543 Rockledge.

31. Future Agenda Items.