Memorandum

City of Lawrence

Planning Department

TO:	David Corliss Debbie Van Saun
FROM:	Lynne Braddock Zollner
CC:	Linda Finger Sheila Stogsdill
Date:	June 2, 2005
RE:	June 7, 2005 Agenda Item

Please include the following item on the City Commission consent agenda for consideration at the June 7^th meeting:

N-04-03-05/SP-02-19-05: Free State Brewing Company, a site plan for an expansion of a non-conforming use for a sidewalk dining area located at 636 Massachusetts Street. Submitted by Hernly Associates for the property owners of record.

Project History. This request was originally placed on the April 19, 2005 City Commission agenda. At that meeting, the applicant requested the item be deferred indefinitely. The applicant wished to discuss the Staff Recommendations with staff before proceeding.

Applicant Concerns. The applicant raised concerns about the non-conforming use status and staff recommendations (a)Per City Code, surface cleaning water cannot be discharged to the storm sewer. The practice of hosing off the porch and sidewalk into the street is prohibited. Add a note to this site plan specifying that cleaning of the porch and sidewalk will comply with City Code 9-902. and (c) Remove bike parking from tree planters. The applicant did not want to be classified as a non-conforming use if they report food sales for the sidewalk dining. In addition, the applicant was concerned about the condition not to hose off the porch and sidewalk and had questions about how the business would maintain a clean area without this process. The applicant also indicated to staff that they had purchased and installed the bike racks in front of the business and the racks were frequently used. The applicant did not want to remove the bike parking.

Staff Response. Staff has reviewed the applicant’s concerns and submits the following:

(1) the non-conforming use status is related to the licensed premise that was in existence prior to 1994 when the City Commission approved Ordinance No. 6527 requiring licensed premises to derive from the sales of food consumption on the licensed premises not less than fifty-five percent (55%) of all the licensed premises’ gross receipts for a calendar year from sales of food and beverages on such premises. (20-1453) Because Free State has been a licensed premise with a valid liquor license since 1989 and has not been required to report food sales in relation to the 55% rule, it is considered to be a non-conforming use created by the adoption of Ordinance 6527 and is subject to the non-conforming use provision of the Zoning Code (20-1302-1303). The addition of the sidewalk dining area will be an expansion of a non-conforming use. The applicant contends that now, in order to have sidewalk dining, he must report food sales and therefore should not be considered a non-conforming use. Staff is of the opinion that the applicant, with the consent of the owner of the building, can request this change. However, once the licensed premise becomes conforming it can not revert to the non-conforming status. If at some time in the future the sidewalk dining area is removed, either by the applicant or the City, the licensed premise will be required to continue reporting food sales as identified by Ordinance 6527.

(2) The cleaning of the sidewalk area and porch area must comply with City Code 9-902. Methods exist that will allow for cleaning the area while meeting the requirements of the code.

(3) The addition of sidewalk dining to the proposed area creates a significant loss of pedestrian space when combined with the bike parking. City Staff is of the opinion that the bike parking can be relocated to the north or south, with the cooperation of those property owners. This will continue to meet the need for bicycle parking and will allow adequate pedestrian pathway adjacent to the sidewalk dining area.

Action Request. Staff recommends approval of the proposed site plan for an expansion of a non-conforming use with the conditions listed in the Staff Report dated April 19, 2005.