January 6, 2004

The Board of Commissioners of the City of Lawrence met in regular session at 6:45 p.m. in the City Commission Chambers in City Hall with Mayor Dunfield presiding and members Hack, Highberger, Rundle, and Schauner present. 

CONSENT AGENDA

            As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve the City Commission meeting minutes of December 30 , 2003.  Motion carried unanimously.

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to approve claims to 241 vendors in the amount of $1,097,715.42.  Motion carried unanimously.       

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the recommendation of the Mayor and appoint Chris Cobb, Laura di Routh, and Tracy Candelaria to three year terms which will expire December 31, 2006 and also, appoint Celeste Fish to an un-expired position which would expire on December 31, 2004, all to the Recycling and Resources Conservation Advisory Board.  Motion carried unanimously.

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to set a bid opening date of January 27, 2004 for the Children’s Learning Center Parking Lot Expansion Project for the Neighborhood Resources Department.                                                         (1)

The City Commission reviewed the bids for Habitat Neighborhood Addition No. 4, fence and property gates project for the Neighborhood Resources Department.  The bids were:

BIDDER                                  BID AMOUNT           

Mc Elhaney Fence                                          $17,550

                        Apex Fence Company, Inc.                            $22,053

                        Estimate                                                          $22,895                      

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to award the bid to Mc Elhaney Fence, in the amount of $17,550.  Motion carried unanimously.             (2)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the City Manager to enter into a contract with Black & Veatch for $52,000 to provide water and wastewater cost of a service rate study.  Motion carried unanimously.                           (3)

Ordinance No. 7734, establishing installation of “stop signs” on 4^th Street at Perry Street  (traffic on 4th Street is required to come to a complete stop at Perry Street, and traffic on Perry Street is required to come to a complete stop at 4th Street), was read a second time.  As part of the consent agenda, it was moved by Rundle, seconded by Hack, to adopt the ordinance.  Aye:  Dunfield, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                                                                  (4)

Ordinance No. 7735, establishing a “35 mph speed limit” on Michigan Street between 2nd Street and Riverridge Road, and establishing a “35 mph speed limit” on Monterey Way between 6th Street and 15th Street, was read a second time.  As part of the consent agenda, it was moved by Rundle, seconded by Hack, to adopt the ordinance.  Aye:  Dunfield, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                             (5)

Ordinance No. 7736, establishing “no parking” along the west side of Belle Haven Drive between 25th Street and Belle Meade Place (re-establish parking along the east side of Belle Haven Drive between 25th Street and Belle Meade Place), was read a second time.  As part of the consent agenda, it was moved by Rundle, seconded by Hack, to adopt the ordinance.  Aye:  Dunfield, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                                                                  (6)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to approve a revised Final Plat (PF-04-10-02) of “The Sanctuary at Lake Alvamar”, a 22-lot, large lot residential plat containing 28.99 acres and includes a 1.289 acre tract that provides direct access for residents to the lake;  (the property would relocate the Sanctuary Drive/Clinton Parkway intersection 230’ west of the current location), and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Provision of the following fees and recording documentation:

a. Copy of paid property tax receipt;

b. Recording fees made payable to the Douglas County Register of Deeds; and,

c. Provision of a Master Street Plan.

Motion carried unanimously.                                                                                                          (7)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-11-20-03) for Foxfire Addition No. 5, a replat of Lots 9 and 10, Block 2, Foxfire Addition No. 4 and an unplatted tract, a 25-lot single-family residential subdivision containing approximately 20.644 acres; (the property is located south of West 15^th Street and west of Research Park Drive), and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Provision of the following fees and recording documentation:

a. Current copy of paid property tax receipt at the time of submittal of the final plat for filing; and

b. Recording fees made payable to the Douglas County Register of Deeds.

2. Execution of a Temporary Utility Agreement;

3. Pinning of the lots n accordance with Section 21-302.2;

4. Submittal of public improvement plans to the City Public Works Department prior to filing of the final plat;

5. Provision for Block 1, Lot numbers 1 and 2, and Block 2, Lot numbers 18 and 19 to be included in the MEBO Table; and

6. Filing of Homeowner’s Association for Tract “A” (Bylaws and Articles of Incorporation) immediately to follow the filing of the Final Plat for Foxfire Addition No. 5. 

Motion carried unanimously.                                                                                                          (8)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-11-21-03) for Sedlock Addition, a replat of Lot 22 and vacated 11^th Street in Western Hills Suburban Rancheros Subdivision Riverside Business Park, containing approximately 1.09 acres; (the property is located at 1101 Wagon Wheel Road), and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Execution of a Temporary Utility Agreement;

2. Pinning of the lots in accordance with section 21-302.2;

3. Submission of public improvement plans prior to recording of the final plat; and

4. Provision of the following fees and recording documentation:

a. Copy of paid property tax receipt;

b. Recording fees made payable to the Douglas County Register of Deeds; and

c. Provision of a Master Street Tree Plan.   

Motion carried unanimously.                                                                                                         (9)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-10-34-03A) portions of Lots 7-11 and 20-22, Block 2, Stonegate Subdivision from RS-2 (Single-Family Residential District) to RM-D (Duplex Residential District); (the property is generally described as being located west of Kasold Drive and north of Peterson Road) and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                                                                (10)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-10-34-03B) portion of Lots 35-44, Block 1, Stonegate Subdivision from RM-D (Duplex-Residential District) to RS-2 (Single-Family Residential District); (the property is generally described as being located west of Kasold Drive and north of Peterson Road) and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.   (11)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-11-39-03) of approximately 5,000 sq. ft. along the southern property lines of Lots 1 and 2, College Motel Addition from RM-2 (Multiple-Family Residential District) to C-5 (Limited Commercial District); (the property is described as being located at 1703/1711 West 6^th Street) and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                                        (12)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-10-35-03) approximately 1.05 acres from PCD-2 (Planned Commercial Development District) to PCD-4 (Planned Commercial Development District) with revised restrictions to include contractor or construction office/shop in Phase O; (the property is generally described as being located south of West 6^th Street at the end of Comet Lane); and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                  (13)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to concur  with the Planning Commission’s recommendation to approve a Revised Preliminary Development Plan (PDP-10-10-03) for 6^th and Monterey Way PCD (Planned Commercial Development), for a contractor/construction shop and office area on approximately 1.10 acres;  (the property is generally described as being located south of West 6^th Street at the end of Comet Lane), subject to the following conditions:

1.         Separate cross access-easements for subject property and lot immediately east of subject property must be filed;

 2.        Add note to the preliminary plat that restricts use of parking lot.  Construction materials, trailers, recreational vehicles and/or boats, mechanical equipment and other miscellaneous objects shall not occupy any parking stall or paved area associated with the contractor or construction office/shop; and

3.         Fencing shall be located on the west and south sides of the building, in coordination with the landscape plan.  Such fence shall be view obstructing if the topography of the area makes it functional.       

Motion carried unanimously.                                                                                                        (14)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the City Manager to sign Firefighters Grant Program documents.  Motion carried unanimously.                                                                                                                                   (15)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the Mayor to sign a Release of Mortgage for Ben Graham, 822 Alabama.  Motion carried unanimously.                                                                                                                  (16)

As part of the consent agenda, it was moved by Rundle, seconded by Hack, to authorize the Mayor to sign a Release of Mortgage for Peggy Sullivan, 2236 East Drive.  Motion carried unanimously.                                                                                                                       (17)

As part of the consent agenda, it was moved by Rundle, seconded by Hack,  to adopt Resolution No. 6522, requesting that the County Commission approve the annexation of a one acre tract owned by the City for the purpose of a sanitary sewer pump station, located at the north end of East 1338 Road (Minnesota Street).  Motion carried unanimously.                   (18)

CITY MANAGER’S REPORT

During the City Manager’s Report Mike Wildgen said Ed Mullins, Finance Director, received an award for financial reporting achievement from GFOA (Government Finance Officers Association).

Chris Stewart, Assistant Director of Utilities, updated the City Commission on the status of the Lime Residuals Project.  He said staff had reached substantial completion of the project. 

He said in 1992 the Department of Health and Environment came to all the major water treatment providers along the Kansas and Missouri River and told them to cease discharging lime residuals into those rivers.  Stewart informed the City Commission on their current process of discharging lime residuals. 

He said several years ago they retained Black and Veatch to complete a study looking at different alternatives for removing those materials.  He said there were two sides to this issue which were temporary and long-term disposal of those materials.  The best idea provided by Black and Veatch was to take the material from the Kaw Plant and pump it to the Wastewater Treatment Plant.  He said this was the best alternative because of economics, operational benefits, and an existing infrastructure.  He said the cost of the project was 5.6 million dollars, but the City received a 20 year loan at approximately 4 ½ percent interest. 

He said concerning the long-term disposal of the material, there were three options which were: 1) mono-fill the material costing approximately $120,000 a year; 2) beneficial reuse of the material costing approximately $220,000 a year; 3) taking the material to a landfill costing approximately $320,000 year.

He said one of the reasons the mono-fill options was a good idea was because 17 ½ acres were available at the Wastewater Plant which would provide approximately 26 years of storage for those materials.                                                                                                                (19)

REGULAR AGENDA

Conduct a public hearing on a request for a waiver of the restriction of the sale and serving of alcoholic liquor within 400 feet of a school or church, pursuant to section 4 -113(a) of the Code of the City of Lawrence, Kansas regarding the proposed drinking establishment at 1001 Massachusetts Street.

Mayor Dunfield called a public hearing.

Frank Reeb, Administrative Service Director/City Clerk, presented the staff report.  He said within Chapter 4 there was a provision that prohibited a drinking establishment from being within 400 feet of a school or a church.  Within that same chapter was a section that allowed the City Commission to waive that restriction following a public notice, a public hearing and also, a finding by the Commission that the proximity of the establishment was not adverse to the pubic welfare or safety.

He informed the Commission that those business partners that were requesting that particular wavier were proposing to purchase the Masonic Temple building at 1001 Massachusetts.  He said they were seeking to have a venue for live music, pool hall, theater, and wedding receptions.     

Reeb said there were two churches within 400 feet of that Masonic Temple building which were the United Methodist Church on the northeast corner of 10^th and Vermont and the Trinity Episcopal Church on the southwest corner.  He presented an aerial photograph of that area to the City Commission.    

He said staff had properly and timely notified the churches as required by City code and he had not had any contact with representatives from either one of those churches. 

Mayor Dunfield clarified that those issues were on the agenda strictly because of the distance to the churches.  Those other issued that might arise would come to the Commission at a later time if those projects moved forward.

Reeb said correct.  He added that the drinking establishment license was also not on the agenda.

Mayor Dunfield asked if the food sale requirement was tied to the drinking establishment licensing.

Reeb said correct.

Mayor Dunfield called for public comment.

Jerry Johnson, applicant requesting the distant restriction waiver for the Masonic Temple, said his partners in this venture were Brad Ziegler and Jim Womack.  He said they met with the Pastor from the First United Methodist Church and the Father from the Trinity Episcopal Church to discuss their plans for the building as well as their intention to be good neighbors.  In those meeting both Pastor Howell and Father Jensen indicated their support for that this project. 

The Masonic Temple building consisted of an auditorium which was similar in layout to Liberty Hall, but smaller.  On the lower level was a dining hall type of a room.  He said their plan was to operate the auditorium as a performance venue for live music, wedding receptions, benefits, theater and other types of venues, similar to how Liberty Hall functions, only smaller audiences.  On the lower level their plans were to have a retro-style billiards hall and restaurant and operate during normal bar and restaurant hours and the upstairs would be open for events only.  This proposed used of the Masonic Temple required few changes to the exterior and interior as far as the makeup of the building.  He said they saw it as preserving the nature of that structure.  He said they were excited about the opportunity to opening up that building for the public to enjoy.

Vice Mayor Rundle asked if the proposed use for events would be scheduled every week.

Johnson said as often as they could schedule those events.

Commissioner Highberger asked how their business plan addressed the 55% food requirement.

Johnson said their intention was to satisfy that requirement.  He said the bar/restaurant area downstairs would serve food as well as upstairs with events such as dinner theater and wedding receptions food would also serve food.

Commissioner Highberger asked if that building was currently used frequently for large functions.

Johnson said it was his understanding that the Masons do several dinners for the Boys and Girls Clubs and other types of clubs.

Patricia Sinclair, Lawrence, asked if it was inappropriate to ask the name of their corporation or partnership.

Mayor Dunfield said that question would be followed up.

Sinclair said it was her opinion that the City needed a moratorium on new drinking establishment licenses downtown.  One reason that had been sited was whether the City had a legitimate right to regulate and license such establishments and would come before the State Legislature for a decision. 

She said one fear would be while looking at this as a place that would satisfy the food requirement at this time, if it was decided that the City could not regulate the food sales then the establishment would not need to fulfill that requirement. She said it was a tenuous time to be adding additional licenses.  She said once a license was granted at that location there was no guarantee as to what type of functions or the nature of the activities and the City would lose control over that building.

She said she asked Reeb how many businesses were considered to be grandfathered under the food sales requirement.  She said she received a list of 27 businesses which did not include cereal malt beverage license holders.  She said were 10 additional businesses that had been licensed over the last 10 years. 

She pointed out that there were five additional churches that were in near proximity to the Masonic Temple.     

She said everyone would like the Masonic Temple to have a continued life as a landmark building, but there was no significant parking.  When talking to the members of the congregation, they already have a lot of trouble with parking.  She said if there was a wedding reception planned at the same time there was a wedding at any one of those churches it would be a great inconvenience and certainly a public safety issue in terms of traffic.

Sinclair said she tried to reach the Father from Trinity Episcopal Church and unfortunately he had left town.  In speaking with members from that church, she found no one who had any knowledge of any letter or understanding that there had been an agreement within the church body to support that waiver.  She said the timing of this meeting was unfortunate in that respect.  She said being a minister’s daughter, she thought the minister did not have the right to speak for the whole congregation and those issues usually go through a board of trustees.

She said historically the City had granted churches, schools, and sometimes other places within the community those particular zones of quiet, safety, and respectability.  This buffer zone was granted to those institutions to serve the community as a whole.  She said while she might not be a member of any one of those congregations, the City as a whole felt that within this City, there were areas where children were safe to walk home from school which was a general benefit to the community.  She said as a community they had a voice in saying that they supported maintaining those buffer zones.  She said in her Barker neighborhood there was a problem with a dirty book store around the corner from Cordley Elementary School and little kids had to walk home past that store.   

She said she did not know how granting that waiver would serve the public good.  She said there were no guarantees that the food sales requirements would be enforced, what activities would take place at that location, or who the owners would be over time because the City had no control over those issues.         

She said this building was enormous, landlocked, and the building was in the area that should be highly protected from further encroachment of night clubs and late night activities.  She said she hoped the City Commission would consider these issues even though she was not speaking on behalf of any of those churches.

Johnson addressed the issue of the business partnership.  He said they had not formally formed a business entity with regard to this issue.  He said they had a contract to purchase that property that had a contingency on obtaining a liquor license for that property.  The idea was to not spend the money on attorney’s to form that business entity until they were reasonably sure that the contract would go through.  He said all the business partners were present to show that they were a group whose intention were to form that partnership once that issue was clear.

Moved by Highberger, seconded by Hack, to close the public hearing.  Motion carried unanimously.              

Mayor Dunfield asked about the ownership question and how that played into the City Commission’s actions.

Reeb said he did not know if that ownership question played into the City Commission’s actions.  He said if the Commission did approve the waiver, then the Commission might want to approve it subject to a particular entity that had requested that waiver whether it was an individual or individuals in a particular legal entity such as a partnership or corporation.  He suggested some record of who the City Commission was giving the waiver to if it was approved.

Mayor Dunfield asked about the potential State action on city control of liquor licenses.

David Corliss, Assistant City Manager/Legal Services Director, said Chapter 41, in the Kansas Statutes Annotated, set out the state laws for intoxicating liquors and beverages.  He said those laws spoke briefly to the authority of cities and counties in regards to the regulation of alcoholic beverages.  Chapter 41 gave cities quite a bit of licensing authority for cereal malt beverage that was sold on premises.  He said drinking establishments had alcoholic liquor licenses.  He said the state statutes had never explicitly recognized statutory authority for cities or counties to issue licenses.  He said the state law referred to the $250 license fee as an “occupation tax” and did not use the term “license.”  He said cities contend that there was dual licensing system in Kansas.  He said a drinking establishment had to have a license that was issued by Alcohol Beverage Control Division of the Department of Revenue and also a city license.  The absence of statutory authority to issue licenses did not preclude this City from exercising their home rule authority to have a local licensing scheme.  He said this City believed that they had that local licensing authority and that was what the code contemplated.  Alcohol Beverage Control did not recognize a local license.  In the past there had been attempts to clarify that both legislatively and through litigation.  The most recent litigation involved the City of Wichita where they increased their “license fee” from the statutory $250 to approximately $1,000.  He said the City of Wichita was unsuccessful when that issue went to the Kansas Supreme Court in persuading the court that Kansas laws allowed the City of Wichita to have license fees of that amount.  The Kansas Supreme Court pointed back to the statute that said they could have an occupation tax of $250.

He said there had also been successful attempts to charter out of not the drinking establishment laws, but the Liquor Control Act to allow for Sunday sales.  He said that issue was likely to be pursued during the legislature session this year as far as whether or not the State Legislature wanted to do something about that issue.

He said this City had home rule authority to license drinking establishments and condition those licenses.  He said when this issue was reviewed 10 years ago, in creating the food sales requirement, it was staff’s recommendation that this City pursue that requirement through the zoning code.  He said the City had the power under state law to zone property and to segregate and condition certain uses.  He said in that situation, under the C-3 zoning district, there was a 55% food sales requirement.  He said 55% of the sales had to be food compared to alcohol.  He said they did not look at any other sales such as cover charges that might be sold inside an establishment.  The idea being that was one way to get at the issue of too many bars or taverns in the downtown area.  He said he was more comfortable in that zoning arena then he was in saying that the City had complete power in the ability to dictate requirements for drinking establishments.

He said if the legislature would ever actively pursue rewriting Chapter 41, they might have the opportunity as cities to say that they wanted clear statutory authority to condition local licensing based on local needs.  Not so much on what they might sell or how they advertised, but based on the neighborhood nuisance types of issues.  He said when the City enacted that requirement he thought they were careful in saying that there might be arguments the other way.                                       

Mayor Dunfield said in a similar sense to the way the zoning authority was used to establish the food sales requirement, in the recent Rick’s Place discussion, the City Commission conditioned that waiver and that was not directly concerned with the State’s licensing authority and those issues.

Corliss said correct.  He said the Commission had statutory authority for that language that was being addressed.

Mayor Dunfield asked if the Commission determined that a waiver was appropriate, they could condition  that waiver on ownership, business plans, or other items.

Corliss said the Commission could have reasonable conditions related to why the Commission was granting the waiver which was because of the proximity issues and some of the neighborhood type of concerns and how their business operations might affect their neighbors.  He believed the Commission had the authority to condition the waiver.

Commissioner Schauner asked how many drinking establishments or cereal malt beverage establishments were in the area of 10^th and Massachusetts.  He said he received an email that there were 10 or 11 establishments in that block.

Corliss said there were 6 establishments on that block. 

Commissioner Schauner said he had an overarching concern about both of those waiver requests because of the mass of drinking establishments and cereal malt beverage establishment on Massachusetts.  He said his suspicion was that there were 30 to 35 places that sold alcohol.  He said at some point, the aggregate mass of drinking establishments and/or cereal malt beverage establishments, did or would have a negative impact on the economic retail vitality of that street.  He said he would like to see some rehab of the Masonic Lodge because it was in the best interest of downtown.  He said he would like the Commission to look at their ability to zone that street’s future economic development in a way that would put some type of realistic cap on the number of places that could serve alcohol on Massachusetts.  He said he thought no one wanted Massachusetts Street to become Aggieville or some place where the majority of the activity was drinking.  He said he did not have any objection to those people who drink, but he thought there was a larger City interest which was maintaining some sense of retail vitality on this street and not just an entertainment venue. 

He said he was also concerned about the lack of detail in the proposal and he had not heard enough from the applicant to believe that he could form an informed opinion about whether it would have negative impact on the churches that were within 400 feet.

Lastly, the fact that the Commission had not heard anything from those churches did not tell him much about the churches position.  He said he was not willing to assume that there silence was acquiescence.  He said based on all those concerns he could not support the request from either application for waivers.

Commissioner Hack said in December the Commission asked staff to look at that issue and what other communities had done.  She did not think that issue applied because the Commission was looking at specific waivers.  She asked the applicant if he had met specifically with those individuals from those churches and that those individuals had not expressed concerns.

Johnson said yes.  He said the Pastor from the First United Methodist Church indicated to him and Ziegler that she would be writing a letter to her board to recommend that they support their efforts.  He said the Father from the Trinity Episcopal Church toured the Masonic Temple and was very supportive.  He said the Father did not indicate whether he would write a letter, but was in support of what they were trying to do.  He said the Father’s support was contingent on not causing a parking problem on Sunday morning.  He said his assurance to the Father was that he suspected that they would not have a lot of concerts on Sunday mornings.           

Commissioner Hack said she was looking at this issue the same as the Commission did with Rick’s Place.  She said she was relying on the honesty of the people making the application that they met with the officials from those churches.  She said that would indicate that there was not silence on the part of the church and it was a confirmation that there were no concerns.  She supported the waiver and hoped that it solved a problem with a lack of venues for receptions and benefits.

Vice Mayor Rundle asked Commissioner Schauner if he was interested in deferring this issue so that the Commission could get a definitive response from those churches.

Commissioner Schauner said he would like to see this matter deferred until there was some direct conversation, a letter, or a phone call from the churches and also until the Commission could have some better information from staff about what other cities had done to control their downtown environment. 

Commissioner Hack said she would have a hard time changing horses in the middle of the stream because those applications had came in under the City’s current situation.  She said she was not opposed to looking at what other cities did with this type of issue, but it was not right to hold applicants hostage to something that the Commission might choose to do in the future.  She said the Commission would be in hot water if they did that.  

Commissioner Schauner said he did not see the Commission as holding anyone hostage, but attempting to develop a reasonable public policy about the appropriate use in C-3 zoning for downtown.  He said this was a very slippery slope.  Before the Commission could get the wheels of this process turning until the Commission received a policy or ordinance, the City could have 3 or 4 more applications for waivers.  Once those businesses were in place then they would have a difficult time dislodging them from that occupation.  He said this was the moment at which the Commission could make a policy decision about what was going to be good for downtown.  He said it would be nice to have another venue, but he asked if Massachusetts Street was the right place.  He did not want to see the downtown area become all cereal malt beverage and drinking establishments.

Mayor Dunfield said he did not think that any of the Commissioners wanted to see that happen.  He said Commissioner Schauner was painting with an awfully broad brush.  He said any restaurant was going to want a drinking establishment license and to say that having another restaurant open was somehow damaging the retail environment downtown struck him as extreme.  In fact, if looking at the history of the north end of downtown Liberty Hall and Free State were the anchors of that end of town that actually developed the interest that brought fresh retail to the intersection of 7^th and Massachusetts Street.  He said the Commission needed to be cautious about painting any drinking establishment with the same brush.  In this particular case, there were some very significant arguments that haven’t been made concerning this historic property. 

One of the first standards that were in the Secretary of Interior’s Standards concerning historic properties had to do with maintaining the use of the property.  Obviously, a Masonic Temple was a specialized use, but the fact of the matter was that it was a gathering place with theater type seating.  He said this was a positive step in the right direction in that this proposed owner had a use that proposed to maintain the interior of that main space intact and use it in a fashion that would be recognizable to the folks that built the Masonic Temple.  There was harm to the historic fabric when spaces like that were chopped up and turned into retail stores or what ever other types of uses someone might make of it.  He said that was a very significant consideration and it was hard for him to picture a venue whether it was for receptions or dinner theater or musical performances that did not serve alcohol as  part of their way of doing business.  He said he would like to see the Commission grant this waiver and condition it on ownership and the nature of the business plan.

Commissioner Schauner said the Commission was talking about everything except the real purpose of this public hearing.  He said the purpose of this public hearing was to determine whether pursuant to Chapter 4, this business being within 400 feet of a church or school was consistent with the health and welfare of that area.  He said all of those other issues the Commission would have a chance to talk about when they had a specific request for a drinking establishment license with a 55% food requirement.  He said he was guilty himself for talking about those issues in his comments, but the narrow issue for the Commission was whether this use, within 400 feet of those two churches was consistent with the public welfare of those churches.  He said he had heard nothing from the applicant to suggest that churches had approved.  He said Johnson had a conversation with one of the ministers and she told Johnson that she would write a letter to her board which suggested that she believed she did not have any authority to make a decision on behalf of her group. 

Mayor Dunfield said that was why the Commission held public hearings, but in terms of the public welfare issue, he was convinced that the preservation of that building including the preservation of the historic interior of that building was in the public welfare. 

Commissioner Highberger said he shared Commissioner Schauner’s concerns about downtown and he was as concerned about the proliferation of chain stores downtown as a proliferation of drinking establishment licenses.  He was in favor of changing the policy to make sure the Commission did not go any further down the incorrect path. 

He said the ordinance stated that the Commission could grant a waiver only if they found that the proximity of the establishment was not adverse to the public welfare or safety.  Having no negative impact from either church, it was hard to make a finding like that. 

He also shared the Mayor’s concerns about the historical integrity of the building.  He said from a business perspective, he did not see any use of that building in its current form that would not involve a drinking establishment license to make it viable.  He agreed with the Mayor in that the Commission should exercise their authority to condition the wavier on the ownership of the building the current applicants and perhaps other appropriate conditions.  He favored the granting of the waiver.

Vice Mayor Rundle asked Johnson what was the capacity of the Masonic Temple.

Brad Ziegler said he walked through that building with Rich Barr, Fire Marshall, and the building  did not have a current occupancy load established.  He said that was the first time Barr had been in that building because it had not been opened to the public.

Vice Mayor Rundle asked how many seats were in the balcony.

Ziegler said there were approximately 125 fixed seats in the balcony and approximately 2000 downstairs.  He said there was an open area, but he was not sure how the occupancy load was established. 

He said additional exiting was discussed which would be necessary in that building.  He said this was the first step in their business venture to get through this process before they went to the architects to have plans drawn.                              

Vice Mayor Rundle said he was prepared to approve the waiver, but it would be nice to have direct confirmation from the congregations that did approve of this issue.  He said he did not know if the Commission could add that as a condition.  He said the points about preservation were well taken and he was pleased that they were preserving the interior. 

Commissioner Hack agreed with Mayor’s comments about the conditions that were similar to Rick’s Place with ownership and perhaps a plan as was outlined by Johnson with performance and large group benefit type events on the top floor and the restaurant and billiards in the basement.

She said she read the report from Barr and she knew there was a lot of work to do to make the building safe.  She moved to grant the waiver with the conditions of ownership and staff working with the applicants on a business plan.

Mayor Dunfield suggested an outline of the proposed uses.

Moved by Hack, seconded by Highberger, to approve the waiver conditioned on: 1) ownership; 2) the business plan as presented this evening.  Aye:  Dunfield, Hack, Highberger, and Rundle. Nay:  Schauner.  Motion carried.                                                                            (20)

The City Commission directed staff to work with the applicant to outline the proposed uses of that building.

Corliss said the next step was that staff would work out specific wording on the ownership requirement and the business plan aspect of that operation.  He said actual verbiage was needed because the intent of conditioning the waiver was if they did not meet those conditions, the waiver expired and they would not be entitled to a drinking establishment license.

Vice Mayor Rundle asked if the motion was to direct staff to come back with that proposed language.

Wildgen suggested bringing this issue back to the Commission with that language.

Commissioner Schauner asked how long the waiver would be good for.

Corliss said the waiver was good unless one of the conditions expired such as ownership change or change in thee business plan. 

Mayor Dunfield agreed.  He said it was entirely appropriate that issue come back to the  City Commission so they could review that language.

Commissioner Schauner asked if the Commission would be asked to grant a drinking establishment license at some point in the future.   He said that would be another step and at that point, the City Commission would need to be satisfied that there was some realistic belief that they would be able to accomplish a 55% food sale requirement.

Wildgen suggested that the applicants articulate that requirement in the business plan. 

Conduct a public hearing on a request for a waiver of the restriction of the sale and serving of alcoholic liquor within 400 feet of a school or church, pursuant to section 4 -113(a) of the Code of the City of Lawrence, Kansas regarding the proposed Mexican Grill (drinking establishment license request)  at 947 Massachusetts Street.

Frank Reeb, Administrative Service Director/City Clerk, presented the staff report.  He said the same code provisions in that previous public hearing were at issue for this establishment.  The specific request was by an entity known as Kansas Mexican Grill LLC, a company from Franklin, Tennessee.  They were seeking to place a Mexican restaurant at that location by the name of Qdoba Mexican Grill and as part of their business plan they wanted to serve alcohol along with their food for their clientele.  He said they were requesting a waiver of distance restriction.  He said right across the alley was the First United Methodist Church.  The Church was timely notified by letter. 

Mayor Dunfield called for public comment.

Darin Harris, representing Kansas Mexican Grill LLC, said they were a franchise of Qdoba Mexican Grill and they were currently in the process of relocating to Kansas.  He said they were requesting a waiver to sell alcohol at that location. 

He said they were a restaurant concept and 98% of their sells were food, 2% was alcohol in which they believed was a key component of a Mexican restaurant that they wanted to offer to their customers as part of their dining experience. 

He said they had spoken to Sue Morgan at the First United Methodist Church and her response was that it was okay with the church and they would not protest.  He said Morgan also talked to the Reverend and their response was the same.

Patricia Sinclair, Lawrence, said again, there was a third party response about what the churches response was.  She said Sue Morgan was the office manager at the First United Methodist Church and Sinclair doubted that Morgan spoke for the Church. 

She said the previous applicant had this business plan since May and it was a contingency of their purchase.  She said apparently the previous applicant approached the Pastor during the holiday season and it seemed that they were putting this off until the last minute and then they wondered why there was no church response.     

She spoke on behalf of churches downtown.  She said she knew there were at least two churches and probably more that had spent a lot of money recently to remodel to continue to maintain their presence in the downtown community.  It was really easy for churches to flee the urban environment as parking and other issues would become problems.  She said Plymouth Church hosted AA meetings and made their rooms available for other community meetings. 

She said when Commissioner Hack spoke of other people coming in and requesting this waiver under the City’s current policy and it not being fair for the City to change horses, this was not the current policy, the applicant was asking for a waiver of our City Code. There was nothing about those two requests in denying them that would establish a new policy for the City.  She said the City would be reiterating that the City stood by what the City Code said.  For people to make business plans with the assumption that they would get something changed might had been the way things had gone in Lawrence in the past, but it was not an entitlement of a business person to make that assumption that they could receive rezonings and waivers. 

She said it was also a sad commentary that the only way the City could think of maintaining an historic building was through the use of alcohol.  She said what the City was saying to the community, children, and those who were trying to setup cultural and other educational services within the community, when the City said that this building could not be salvaged unless alcohol was sold. 

Based on what Corliss said, a drinking establishment license went with the establishment.  She said the Commission just heard a business plan that said that they were a restaurant with 90% food and 10% alcohol.  If the Commission gave them a drinking establishment license, it could mean they could sell the corporation to someone else and there would be a different concept. 

She said she was not clear because she had not seen any plan.  She said if the address was 945 and 947 in one building she did not know if anyone could tell her where the entrance was and whether it was a Massachusetts entrance.  She said if it was a side entrance than that would affect the 400 foot notification area which might include Plymouth Church and Trinity Church and it could be found that there had been improper notification. 

She said downtown was one of the most alluring things to her when she came to Lawrence with the homegrown and non-chain stores.  Now, it has become a night time playground and it was not a safe or fun environment.  She suggested that the Commission defer this issue until they heard from the appropriate people if they had been notified properly.                 

James Dunn, Lawrence, said one concern came up when Mayor Dunfield made comments about the Masonic usage and the use being a Liberty Hall type use.  He said he had observed that Liberty Hall had huge busses that came to bring the artist and performers.  He said as he looked at the Masonic Temple area he wondered where all those busses would be parking.  He said if they were going to park in front of the Methodist or Trinity Episcopal Churches on Sunday mornings, those churches might have something to say about what would be happening at that corner because of the additional congestion. 

He said having lived in this community a long time, he went back to when that particular location was the Duckwall Store which was handy for people who lived in the neighborhood because it was a variety store.  He said he was beginning to wonder if there was a skewing in such a way that the City had skewed to allow so many liquor places and night venue and not so many day things because the of the way the meters were used.  He said the City did not monitor the meters after 5:30 p.m.  Basically, anyone operating a business in the day time was operating at a disadvantage. 

He asked how trash would be handled in that area.  He said if those new entities came in and chose not to do any recycling, then there would be more trash.           

Moved by Hack, seconded by Rundle, to close the public hearing.  Motion carried unanimously.                     

Vice Mayor Rundle said for consistency purposes and because of the concerns, he asked if it would be appropriate to make this waiver conditional as well.

Corliss said conditional on ownership and/or business plans would be entirely appropriate because the Commission had that authority if they wanted to proceed in that fashion. 

Commissioner Schauner said he wanted to talk about an issue that Sinclair raised.  He said it was his understanding that those businesses which were in operation on or before 1994 were grandfathered in and would not need to meet the 55% food sales requirement.  He said that grandfathering was essentially was given to the place not the exact business that was in operation at the time.

Corliss said correct.

Commissioner Schauner said if the Commission granted a drinking establishment license to the Masonic Temple group, Qdoba or others, he asked if there business plan changed and they were out of business for 6 months or more, their drinking establishment license would no longer be in existence.

Corliss said their non-conforming use status would be extinguished after 6 months of non-use.  In the case of those two applicants, they were not non-conforming uses and they would need to comply with the food sales requirement.

Commissioner Schauner said as a conforming use, he asked how that property might lose its wavier under the church/school matter or any other way.

Corliss said as the Commission approved the wavier at the Masonic Temple location, if their ownership changed, then they would lose their waiver.  If their business plan changed, which needed to be articulated more comprehensively, then they would lose their waiver.  If they lose their wavier they were not entitled to a City license and that drinking establishment license operation would be ceased.

Commissioner Highberger asked if there was more flexibility to condition the waiver because this authority was explicitly granted in state statute.  

Corliss said there was state statue authority for the Commission to speak to the location of establishments that sold alcohol and their proximity to churches and schools.

Vice Mayor Rundle said a future owner would need to go through the process again if they wanted to establish that type of use.

Corliss said correct.

Commissioner Schauner said if there was a side entrance at the Qdoba Mexican Grill, did that change the number of people that needed to be notified of the public hearing.

Reeb said potentially it might.  He said it was important to remember, according to the code, that the distance was measured, not necessarily from any public entrance, but the primary public entrance.  He said he was measuring from the public entrance along Massachusetts Street.  Assuming the primary public entrance was the entrance along 10^th Street then perhaps it could affect Trinity Episcopal Church.  He said as he recalled, going from the entrance along Massachusetts Street, Trinity Episcopal Church was approximately 420 feet which was just outside the 400 foot.  He said the question was for the applicant, was the primary public entrance along Massachusetts Street.

Harris said the primary entrance was on Massachusetts Street.

Commissioner Highberger asked if the Commission could add that as an additional condition on the waiver.

Reeb said he thought so.

Wildgen pointed out that Qdoba had sidewalk dining in their business plan which had not been approved and was a separate issue.               

Corliss said there was a site plan requirement for sidewalk dining.  He said if the Commission decided that they did not want the sidewalk dining at that location, they did not have to grant that license.

Commissioner Highberger said absent from commentary from any church or member of the church, he did not see a solid ground for finding that the proximity of the establishment was adverse to the public welfare or safety.  He approved the waiver condition on ownership staying with the current applicant, maintaining consistency with the business plan filed at the time of the application and on the primary entrance remaining on Massachusetts Street.

Commissioner Schauner said he was somewhat less troubled with this application then the prior application because there was a better sense of what their business plan was and their history suggested that they did 98% food and 2% alcohol.  Contrary to the Mayor’s earlier comments, he did not have a problem with restaurants, but he did think restaurants could serve an effective function for maintaining the vitality of downtown.  Curiously enough, this was a chain restaurant as opposed to a local restaurant.

Commissioner Highberger said the Commission did not have any authority to deny that waiver on that basis. 

Commissioner Schauner said he was not suggesting that the Commission deny the waiver because it was chain, because he thought at some point there was a sufficient aggregation of drinking establishments downtown that it could not help but have a negative impact on the churches that were within the 400 foot radius.  To be consistent, he could not support that waiver either.

Vice Mayor Rundle said just as the Commission recognized the previous applicant for the preservation of the building, he was guardedly optimistic about the statement they made about restoring the building to its original use.  He said it was hoping that was true because often people don’t take the time to think about those changes and try to accommodate the historic character.  

Moved by Rundle, seconded by Hack, to direct staff to bring back a waiver to the City Commission outlining language that the waiver was conditioned on the ownership staying with the current applicant, maintaining consistency with the business plan filed at the time of the application, and that the primary entrance remain on Massachusetts Street.  Aye:  Dunfield, Hack, Highberger, and Rundle.  Nay: Schauner.  Motion carried.                                            (21)

Conduct a public hearing concerning the garage structure at 933 Rhode Island.

Mayor Dunfield called a public hearing.

Lynne Braddock Zollner, Historic Resources Administrator, said the City came to the Historic Resource Commission to look at the demolition of that ancillary structure located at 933 Rhode Island Street to make sure that it would get the appropriate historic review, should the City chose to pursue its demolition on safety issues.  This demolition would require two separate reviews by Historic Resources, one based on the state statute that they had an agreement with the State Historic Preservation Office on a local level and that was an environs issue as to the effect that the demolition of that structure would have on a property located at 945 Rhode Island which was a State registered listed property.

An additional review that the demolition would need to undergo was done administratively by City staff for compliance with Chapter 22 which was the Historic Resources Code.  It had a different set of standards and was more specific in the effect of what exactly would be harmful to the environs of the locally listed properties. 

The reason for this public hearing was so the City Commission could determine whether or not to affirm the Historic Resources Commission’s decisions that the demolition of this structure would in fact encroach upon, damage, or destroy the historic property at 945 Massachusetts Street or decide based on the consideration of all relevant factors that there was no feasible and prudent alternative to the proposal.  Also, that the program included all possible planning to minimize harm to such historic property resulting from the demolition.  Should the City Commission decide that was the choice, staff had provided a resolution that would address that issue.

Linda Finger, Planning Director, said the draft resolution was one digit off from being accurate.  The resolution number was 6515 rather than 6516.  She said this resolution was based on the presumption that the City Commission found that all feasible and prudent alternatives had been met.  She said it did not reaffirm the HRC determination.              

Vice Mayor Rundle said one of the issues that had come up in the past was that he did not see, from the material that was presented to the City Commission, that there were alternatives outlined, such as minimal repairs on the building.   He asked if there was some process that was not being followed to get those alternatives.

Zollner said there was a clause in Chapter 22 that discussed maintaining structures so that demolition by neglect would not occur.  That clause only pertained to locally listed properties and it did not include properties within the environs.  She said she understood that they did not have any way at this time to force and individual to put the money into the property to maintain that property.  She said the resolution addressed some of those issues.  Ultimately staff would like to see the structure restored, but they did not have the authority from the Historic Review perspective.  Those alternatives would come from the property owner.  She said a letter was sent to the property owner asking him to respond with any alternatives that he had proposed for that property.  He did not respond directly to staff, but staff was copied on a letter from the neighborhood that stated, at one point, he had intended to rehab the structure.

Mayor Dunfield called for public comment.

Carol Von Tersch, speaking on behalf of the Lawrence Preservation Alliance, said this was a situation where the Neighborhood Resources Department was seeking a permit to repair or remove a barn like structure due to its unsafe condition.  The condition of this structure was the direct result of the lack of maintenance for approximately the past 20 years.  She said the City had an ordinance designed to prevent demolition by neglect and the City was now in an awkward position trying to work at cross purposes.  On the one hand trying to protect citizens from unsafe conditions and on the other hand, the City seemed to be encouraging the demolition by neglect. 

She said this issue was before the City Commission right now because the Historic Resources Commission refused to be an accomplice to the destruction of the environs of those three listed properties.  The HRC applied the standards for evaluating the effect of projects on environs and they determined that demolition would encroach, damage, or destroy the environs.  She said the structure was originally a barn and then a garage.  She said it was a rental property and it was certainly rentable in that neighborhood as a garage.  She said it could have been rented as a garage for the past 20 years and the rental income could have been used to maintain the structure.  Apparently the owner chose not to do that.  She believed the interior of the structure was gutted in 2000 in an effort to create another living rental unit on that site.  When that project proved to be too costly or the appropriate approvals were not granted, the project was abandoned.  However, the owner still could have rented that structure as a garage and could have maintained it, but chose not to do so.  She said it appeared that this was not an economic issue.

She said there were two choices.  First, the City Commission could grant the demolition permit and send the bill to the owner, but by doing so the Commission might be destroying the effectiveness of any ordinance designed to prevent demolition by neglect.  Second, was to repair the structure and send the bill to the owner or there might be a third alternative which was to replace the structure with a like structure and send the bill to the owner and that would be in keeping with the Department of Interior Guidelines, “when severity of deterioration requires removal within the environs, compatible reconstruction shall occur.”   She said the problem was that they needed to figure out a way to stop this negligence earlier.  The City needed to force repair in the same way they could force demolition.  She suggested ordering the work and the bill sent to the responsible party.  She said another approach would be to tie proper maintenance to licensing requirements.  She said incorporate maintenance into rental licensing requirements.                

She said the Lawrence Preservation Alliance wanted to go on record as absolutely opposed to demolition by neglect and opposed to the City trying to solve those problems by demolishing, instead of enacting and enforcing appropriate ordinances.

Ed Tato, President, East Lawrence Neighborhood Association, said they had not discussed this issue at one of their regular meetings, but it was addressed in their neighborhood plan.  He said this issue was started by neglect.  He said he was not familiar if the City had an ordinance that addressed demolition by neglect, but if they did not have some way of dealing with this issue, what they were essentially doing was undercutting a state law. 

He addressed the HRC staff report.  He said the report stated that “Every reasonable effort shall be made to provide compatible use for a property.”  He said when looking at the memo from Victor Torres, Director of Neighborhood Resources, to Corliss, every reasonable effort was not made. 

He said the HRC report also addressed the removal and/or repair or replacement of this structure.  He said the HRC found that there was no alternative, yet in the resolution, it sited K.A.R. 118-3-1, (e)(i) and (j).  He said those conditions were the ones that could not be met, but they did not provide any evidence as to why they could not be met.  Neither City staff nor Morning Star Management had submitted any materials saying those could not be met.  He said the City Commission’s job was to make a finding of fact that those alternatives could not be done.    

He said the staff report indicated that repairs were preferred over replacement.  He said if repairs could not be done, then he thought replacement should be looked at.

Tato said the design criteria said “Exceptions are allowed only if a structure has been substantially damaged through fire or deterioration.  Again, they needed to look at what was the state of this property when the owner bought it and how had it deteriorated under his ownership. He likened that issue to a variance.  He said the City did not grant variance to people who impose their own hardship.      

He said he did not understand how City staff could say they had all the information they needed to go ahead and make the finding of fact that would allow that structure to be demolished.

K.T. Walsh, resident of East Lawrence, said she would like to ask the City Commission to ask the property owner to repair the barn, rather than demolish it.  She said this barn was in a fragile area and an area soon to be made a historic district.  The barn itself was a beautiful structure and it was now featured in the large second story windows of the new Arts Center dance studio.  It provided the buffer between that institutional use and the neighbor’s back yards. It was a reminder of the town of Lawrence’s more rural beginnings. 

She said there was not enough information about feasible and prudent alternatives.  She said there was discussion about the possibility of rehabbing and renting out covered garage spaces to the owners tenants or to business people in Lawrence.  She said there were ways that a business person could make money off of that barn that had not been looked at.  The owner seemed opened to discussing possibilities.

She said there would also be tax benefits when and if it became an historic district and those would be available to the owner. 

Marci Francisco, owner of two properties across the street from 933 Rhode Island, said she wanted to reiterate the concern that there had not been facts and figures given about feasible and prudent alternatives. 

She said one concern she had with the City’s procedure was that she understood that they were working with them to try and eliminate blight and to initiate some repair of that structure.  She said there was an environmental code that had been changed so the structure of the building could be addressed as well as issues of public health and safety.  She said it seemed that the environmental code should be used.  Rather than saying that structure needed to be torn down, say that structure needed to meet code.

She said this was rental property in a single-family district.  She asked, why would the City be continuing to give rental licensing to properties that did not meet the environmental code?  She said there were other things that could be used as leverage to see that this was done, particularly if the Historic Resources Commission had determined that demolition would be an encroachment on the historic property. 

Denise Modin, Rhode Island, said allowing demolition of that structure would not only affect that structure, but also her garage as the structure shared a common wall.   Allowing the demolition would affect her on several levels. 

Dayna Carleton, East Lawrence resident, said that barn structure was beautiful and Lawrence needed to cherish their old buildings and not tear them down.   

Paul Horvath, owner of the property in question, said he wanted to take his share of the responsibility for allowing the situation to get to where it was.  He said there was more that he could and should have done over the years.  He said his intention was never to allow the property to deteriorate to the point where it was not viable to restore.  He said when he purchased the property in 1993 there was an apartment upstairs and his intention was to renovate into the use that it was when he had bought the property.

He said when he was first notified that he needed to either restore or demolish the property, he tried a couple of times to secure a permit and there was some resistance in the Building Inspection Department in that they felt it wasn’t worth restoring.  He said when he pushed the issue of stating that it was up to the property owner rather to restore a property or not, he was sent to the Planning Department to get a determination on whether the property was properly grandfathered in and whether he could restore it for the use that he thought was permissible and historic.  After working with the Planning Department it was determined that he could not show that it was ever a legal non-conforming use so they agreed to disagree that they should proceed with getting the property permits to restore the property until the issue of whether he could rent it out was resolved.  He was then sent to the Historic Resources Commission and worked to get permission to restore the building.  Once that was secured, he said he took the steps to start restoring the structure.  He said there were a couple of carpenters that worked for him and were quite capable, but at a certain point they felt like it was beyond the scope of what they were capable of doing.  He said he asked City staff to come out and look at the structure and their feeling was that the structure should be taken down. 

He said concerning compatible reconstruction, he stated at one point that it would be easier to take the structure down and rebuild something similar.  He said City staff told him that he would need to go through the whole permit process again.  He said he then found a person who he thought had the expertise to restore that building without taking it down, but the cost was high.  Staff recommended that he apply for a variance to offset the cost. 

Finger said there was no such thing as a use variance and it was illegal in Kansas.

Horvath said he was not aware of that.  He said City staff should have explained that and if City staff did, it did not take.

He said he visited with some of his neighbors and he thought there were some alternatives that could be looked at that might offset the cost of reconstruction.  He said personally, he would like to see his building saved.

Vice Mayor Rundle asked Horvath when he talked about reconstruction was he talking about as a garage and storage.

Horvath said yes.  If a variance was not possible, he would rent out garage space to off-set the funds that it would take to reconstruct the building.  He said what he was hearing from the neighbors was an interest in maintaining the structure.  As a landlord, he felt a responsibility to the neighborhood and he wanted to be responsive to what the neighborhood would like. 

Moved by Highberger, seconded by Rundle, close the public hearing.  Motion carried unanimously.  

Mayor Dunfield said this first issue was to consider the question of feasible and prudent alternatives.  He said the City Commission had a resolution before them based on a different premise.

Finger said the resolution was not needed if the City Commission’s determination was that there was a feasible and prudent alternative.  What the Commission would need to do was to proceed with the applicant to determine how they reached that feasible and prudent alternative to rehabilitate and restore the structure.

Moved by Schauner, seconded by Rundle, that the proposed demolition of the garage structure at 933 Rhode Island would encroach upon, damage or destroy the Schalor Eldridge House (945 Rhode Island) and found that there are feasible and prudent alternatives to the proposed demolition.  Motion carried unanimously. (22)

Vice Mayor Rundle said in terms of feasibility, if the historic district when through, then there were both federal and state tax incentives where the cost of renovating, repairing, and improving an income producing structure were deductible from income taxes.

Commissioner Hack asked about the timeframe.

Finger said the hearing at the Kansas Sites Board was  February 21, 2004.  She pointed out that based on the structures current condition, it was listed in the survey as non-contributing.  Non-contributing monies were not eligible for funding.  Once it was brought up to some ability of stability, it could then be reevaluated.  Once the structure was contributing, it would be eligible for those tax funds. 

Vice Mayor Rundle said his point would be to consult and do careful planning so they could defer expenditure on those renovations and to take maximum advantage if possible.            

Mayor Dunfield called a public hearing for the consideration of adopting Resolution No. 6521, establishing reasonable time for repair/demolition of the garage structure at 933 Rhode Island.

Julie Wyatt, Environmental Inspector, said the reason why this issue was brought before the City Commission was because of staff’s concern for the public safety.  She said the pictures clearly indicated that the structure was not secure and the majority of the weight was on jacks.  She said there was no lateral support and if there was a strong wind storm, she would have concerns.  She said whether it was remodeling or removing the structure, their main concern in the Code Enforcement Office was safety for the public.  She hoped some order be given to the property owner that a timeline be stipulated.  She said she had been working on this issue for quite some time and that was why it was brought out at this point.  She said the structure had been in the same condition since July of 2003.  One way or another there needed to be a resolution so that the structure was not unsafe.

Barry Walthall,  Code Enforcement Manager, talked about what it would cost to secure the structure to a point that it would be in a safe condition.  He said it was estimated at $25,000 based on the cost per square foot of construction for a new structure.  He said an engineering/consulting fee was also added.  He said staff had talked to an engineer and the best option that staff received was dismantle and rebuild the structure.

Francisco said she hoped the City Commission looked at the wording of the resolution and since the City Commission found that there were feasible alternatives that they take out “removed” and leave in “repair.”    She hoped they could find an affordable way to keep that structure.  She said the discussion should include a reasonable timeline.

Horvath said Wyatt had been good and patient to work with.  He pointed out that there was wire mesh fencing doubled decked to keep people out.  He said he tried to secure the stairs so no one could get up those stairs.  He said there were people who specialize in dismantling barns and reassembling them elsewhere.  He believed that he had a person who could address this barn issue and they would need to find a way to reasonable support those costs.

Corliss asked Horvath if there was a party wall agreement between him and the owner of the other structure.

Horvath said not that he was aware of. 

Tato said a timeline needed to be addressed.  He said Horvath had obviously spoken with someone who was familiar with the structure and knows what needed to be done.  As far as waiting for what was the best economic solution, $25,000 sounded like a lot of money, but if adding in storage and renting bays for automobile parking would defrays some of those costs.  Also, adding value to the property seemed that recouping that $25,000 over a term was not  outrageous.  He said this issue needed to be addressed quickly and there was a basic economic benefit from renting those garages to the tenants or to someone else. 

Moved by Highberger, seconded by Hack, to close the public hearing.  Motion carried unanimously.       

Commissioner Hack said having purchased an older house and lived in many growing up she knew that when buying houses of a certain age, a person needed to be prepared for the tender loving care that went with that and they pay back with the joy of living in them.  She said she was concerned that when this property was purchased, it probably was not in the best shape and to have let it decline to where staff was extremely concerned about safety for the public.  She said the timeline needed to be as quick as possible. 

She also thought the whole issue of demolition by neglect and making it possible for an individual to buy property and have it deteriorate to a point where the community was in this position was something this whole community did not want.  She suggested that the City Commission look at beefing up the environmental code.

Commissioner Highberger asked if staff had a recommendation on a timeline for stabilizing that structure.

Walthall said as soon as possible.  This structure would fall down at some time.  He said he would recommend 30 days.

Commissioner Schauner asked if it was possible to stabilize that structure without that $25,000 expenditure so that additional time could be made available to develop a specific plan for its repair. 

Walthall said it was possible.  The scenario that he would recommend would be to have an engineering evaluation done on that structure.  The structure was in a state that a reasonably competent person was not able make repairs that would have any certainty of stabilizing that structure. 

Wildgen asked when the City Commission would like a report back.

Vice Mayor Rundle said he did not think that an engineering estimate was needed.  He said framers could probably look at the building for suggestions on stabilization. 

Finger suggested that the City Commission give staff three weeks to perform a walk through with Historic Resources, Building Inspection, the property owner, and his architect.  She said staff could come back to the City Commission with a report as to what needed to happen.   

Walthall said he would like to see the owner take some steps on his own and make some improvements to stabilize the building.  He was not comfortable with saying that in 3 weeks that building was still going to be there.  He was not willing to say that this structure was going to remain standing for any length of time.  He said the structure was in a dangerous state. 

Commissioner Schauner asked if the staff could instruct the owner to put up barricades around the building with an indication that this was an unsafe structure.  He thought it was a reasonable request to ask the owner to do tomorrow.

Commissioner Hack said with the shared garage there might be problems.

Walthall said staff could take that step.  He said staff had posted notices on the building.  He said Horvath had put the plastic construction fencing around the structure.   He said staff could take the extra step of putting up a more permanent type of barrier like a chain link fence.

Mayor Dunfield said he would like this issue back on the City Commission agenda in three weeks with a report.  He said there was as significant difference between a theoretical engineering knowledge of structures and experience with building that were in a deteriorating  state.  He said there were people in this community who had that type of experience in working with structures that were from a structural engineer’s point of view, as this one was, in a state of collapse and had been brought back and had done so without resorting to quite the extreme measures that might seem to be necessary from a professional point of view.  He urged Horvath to seek out information from the preservation community and try to incorporate some of that experiential knowledge into the report that would come back to the Commission in 3 weeks.         

 Commissioner Schauner added something that Commissioner Hack said that was right on target and that was if something was missing in the City’s environmental code that has hampered staff from being better able to, in a timely fashion, cause that structure to be better maintained or repaired, then he wanted feedback from staff about what tools were missing so the Commission could help staff do that work.  He said the City Commission wanted to provide staff with the tools to prevent a reoccurrence of this type of issue.                                           (23)

Consider a request from Lawrence-Douglas County Metropolitan Planning Commission for the City Commission to consider adopting a policy for city land acquisitions or purchases for parks and community facilities.

Linda Finger, Planning Director, said the Planning Commission felt an obligation to provide advice to the City Commission on donations of land which might be sizable and could impact neighborhood planning and/or community planning.  She said it was not their intent to become an impairment or obtuse, they wanted to provide additional advisory authority. 

She said where there were parks and/or community facilities being planned, that the Planning Commission have the opportunity to provide the City Commission with advice and/or input to look at those in relationship to the Land-Use Plan specifically in relationship to parks.  She wanted it clearly understood they did not want to assume any of the authority of the Parks and Recreation Board and they did not want to look at what it meant to the Comprehensive Parks Plan, but from a  land use standpoint.  She said they wanted to serve as an additional advisory capacity and not a replacement for that board because they had high regard for that board and their expertise. 

If the City Commission believed that this was a worthy endeavor then she suggested that they talk about a process that should be followed similar to an annexation request over ten acres so it was clearly understood what the City’s  process was and also that there was an acreage minimum. 

Mayor Dunfield said there was some discussion in the agenda meeting about what exactly a community facility was and whether they were opening themselves up to discussion of every right-of-way acquisition, but the ten acres or greater idea would seem to keep them out of that territory.

Finger pointed out that neighborhood parks were probably 5 to 10 acres.  She said she thought they would want to be involved in a park particularly if it was associated with a school site. 

Commissioner Schauner said the mentioning of schools prompted him to ask what input the Planning Commission had with respect to school location.

Finger said the Commissions had a joint meeting annually with the City/County and School District and they talked in general about land use planning and community facilities, but specific to school sites, staff worked together more one on one than they did Commission to board. 

Commissioner Schauner asked what guided staff in site location for schools.

Finger said they had only been involved in two and those sites had already been determined prior to consideration for Planning input which were Free  State High School and Langston Hughes. 

Commissioner Hack said some of that land was purchased years ago for a potential school. 

Commissioner Schauner said when thinking about the urban growth area south of Wakarusa where there was in the neighborhood of 20,000 additional people, the master planning for that area essentially identifying specific locations for schools in what they planned out as that growth area.  He would like to be a head of the curve with respect to all of those issues and essentially have planning, with appropriate input from County/City and School District Commissions, make those decisions in advance about where those things would be appropriately located.

Mayor Dunfield said that was a good point and at that last joint meeting they talked about some of those planning issues and they would make sure they take up schools as they did that.

Commissioner Schauner said going back to this particular issue, the expertise of Planning Commission might be real helpful in terms of park acquisition or community facilities acquisition. 

Mayor Dunfield called for public comment.

Commissioner Hack said when the Planning Commission discussed the issue, she asked Finger if the City Commission had the minutes to the meeting.

Finger said not at this time.

Commissioner Hack asked if this was a unanimous decision from the Planning Commission.

Finger said she thought it was a unanimous decision.  She said it was actually a continued discussion from several different meetings that came about as a result of other long-range planning issues that the Commission was dealing with. 

Gwen Klingenberg, West Lawrence Neighborhood Association, said she would like to see the Planning Commission get involved, especially in the neighborhood and the five acres issue.  She said somewhere along the way there was land given or the City bought that was a green circle, but it was a drainage ditch.  She said this was not appropriate for a park and there was no way that it would ever be a safe place for kids. 

Wildgen said to develop the parkland was west/east of Langston Hughes, the narrower part was never intended to be park, but open space with a trail.

Fred DeVictor, Parks and Recreation Director, said schools in general  did not have the standards for acreage for elementary schools like parks did.  He said staff had worked with the local school district well in following a “school park concept.”  He said where they looked for parks, they tried to involve the school district and to see if they need schools in that area.  For example, one of the new parks that was purchased in the far southeast portion of town was approximately 40 acres, but with the idea that if the school district needed an elementary school site there, they could sell a portion of those acres to them. 

He said they would welcome as much input they could receive in where parks were located.  He said by City Code, the Parks and Recreations Advisory Board made recommendations for a variety of things including park acquisition.  He said some of the sensitivity issues were the timeliness. 

Commissioner Schauner mentioned the circular area that Klingenberg referred to earlier, he asked what plan was there for that ground.

DeVictor said that was a 40 acre site that they purchased which was a circular area and about 15 acres was across the street from Langston Hughes Elementary School which would be the future neighborhood park and a trail system would connect from the neighborhood to the park and school.  There was a street that crossed through that land and they had worked out some easements for trail connections.  The idea was preservation of some of that green space and open space in that area.                    

Commissioner Schauner asked if the presence of a gas line presented any safety issues.

DeVictor said early on they had communicated with them and he had it in writing that they could put a trail along that easement.  He said the important thing was to follow the urban growth area.  He said as they go to the south of the Wakarusa River they should look for park land in that area.

Commissioner Schauner said he hoped the Planning Commission and the City Commission would provide specific direction about where those infrastructures should be built rather than simply reacting to developer proposals that might come forward.  He preferred the City Commission to be a more pro-active participant in that which included the parks and parks location.

Commissioner Highberger thanked DeVictor for looking ahead and looking forward in buying parkland in new areas.  He thought the Planning Commission could play a vital role in making sure that the acquisition was sited and were inconsistent with the long-term planning process.  He would like to see it go to five acres because planning for neighborhood parks was an important part of the process.

Mayor Dunfield concurred.  He said he would like to see the five acres specifically referred to neighborhood parks so they did not get into an issue of rights-of-way and other things that could be called community facilities.

He said the Commission needed to be mindful and plan carefully and also need to be able to seize opportunities that arise.  He did not want a process like this to cause them to miss good opportunities when they did arise. 

Wildgen said staff would write some policy statements that helped that process to be clear.

Commissioner Hack said the City had a very forward looking Parks Department.        (24)

Moved by Schauner, seconded by Rundle, to adjourn at 9:40 p.m. Motion carried unanimously.

APPROVED:

_____________________________

David M Dunfield, Mayor

ATTEST:

___________________________________                                                                       

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF JANUARY 6, 2004

1. Bid Date Set – Jan 27, 2004 for Children’s Learning Ctr Parking Lot Expansion.

2. Bid – Habitat Neighborhood Addition No. 4, fence & property gates to Mc Elhaney Fence for $17,550.

3. Contract – Provide water & wastewater cost of a service rate study to Black & Veatch for $52,000.

4. Ordinance No. 7734 – 2^nd Reading, “stop signs” on 4^th at Perry.

5. Ordinance No. 7735 – 2^nd Reading, “35 mph” Mich between 2^nd & Riverridge & “35 mph on Monterey Way between 6^th & 15^th.

6. Ordinance No. 7736 – 2^nd Reading, “no parking” W side of Belle Haven Dr. between 25^th & Belle Meade Pl.

7. Revised Final Plat – (PF-04-10-02) The Sanctuary at Lake Alvamar, 28.99 acres, to relocate the Sanctuary Dr/Clinton Pkwy intersection 230’ W of current location.

8. Final Plat – (PF-11-20-03) Foxfire Add No. 5, 20.644 acres, located S of W 15^th & W of Research Park Dr.

9. Final Plat – (PF-11-21-03) Sedlock Add, 1.09 acres, located at 1101 Wagon Wheel Rd.

10. Rezone – (Z-10-34-03A) Stonegate Sub from RS-2 to RM-D, located W of Kasold & N of Peterson.

11. Rezone (Z-10-240-03B) Stonegate Sub from RMD to RS-2, located W of Kasold & N of Pererson.

12. Rezone – (Z-11-39-03) College Motel Add, approx 5,00 sq. ft., located at 1703/1711 W 6^th.

13. Rezone – (Z-10-35-03), 1.05 acres from PCD-2 to PCD-4, located S of W 6^th at he end of Comet Ln.

14. Revised Prelim Dev Plan – (PDP-10-10-03) 6^th & Monterey Way PCD, 1.10 acres, located S of W 6^th at end of Comet Ln.

15. Firefighters Grant Program.

16. Mortgage Release – 822 Alabama, Ben Graham.

17. Mortgage Release – 2236 E Drive, Peggy Sullivan.

18. City Manager’s Report.

19. Public Hearing – waiver, located within 400’ from church or school, Masonic Temple, 1001 Mass.

20. Public Hearing – wavier, located within 400’ from church or school, Qdoba Mexican Grill, 947 Mass.

21. Resolution No. 6523 – 933 Rhode Island, making certain findings & determinations.

22. Resolution No. 6521 – establish reasonable time for repair or demo of 933 Rhode Island.

23. Policy for city land acquisitions or purchases for parks & community facilities.