September 6, 2005

The Board of Commissioners of the City of Lawrence met in regular session at 6:35 p.m., in the City Commission Chambers in City Hall with Mayor Highberger presiding and members Amyx, Hack, Rundle, and Schauner present.  

RECOGNITION/PROCLAMATION/PRESENTATION:

The Sister City of Eutin, Germany student delegation and teacher gave a presentation to the City Commission.

With Commission approval Mayor Highberger proclaimed September 4 – 10^th as “Suicide Prevention Week”; the week of September 5 – 11^th as “Lawrence Literacy Week”; and September 7^th – October 8^th as “Lawrence Indian Arts Show Days in Lawrence.”

CONSENT AGENDA

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve the City Commission meeting minutes of August 16, 2006 and August 23, 2005.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to receive the Planning Commission meeting minutes of July 25, 2005 – July 27, 2005; the Historic Resources Commission action summary meeting minutes of July 21, 2005; the Human Relations Commission meeting minutes of June 1, 2005; the Lawrence-Douglas County Housing Authority meeting minutes of July 25, 2005; the Aviation Advisory Board meeting minutes of June 9, 2005; the Convention & Visitors  Bureau Advisory Board meeting minutes of June 27,2005 and July 6, 2005; the Hospital Board meeting minutes of June 15, 2005; and the Mental Health Board meeting minutes of July 26, 2005.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve claims to 954 vendors in the amount of $14,973,584.15 and payroll from August 21, 2005 to September 3, 2005 in the amount of $1,459,258.49.  Motion carried unanimously.     
As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve the Drinking Establishment Licenses for the Slow Ride Roadhouse, 1350 North 3rd; Johnny’s Tavern, 401 North 2nd; Eight One Five, 815 New Hampshire; Harbour Lights, 1031 Massachusetts; Qdoba Mexican Grill, 947 Massachusetts; Holiday Inn Lawrence, 200 McDonald Dr; Louise’s Bar Downtown, 1009 Massachusetts; the Retail Liquor License for Mass Beverage, 3131A Nieder Road, (New License); and the Cereal Malt Beverage License for Pizza Shoppe, 1520 Wakarusa, Ste: F (New License).  Motion carried unanimously.

The City Commission reviewed the bids for a Siemens Hipath telephone system for the new Fire and Medical Station No. 5, located at 19^th and Stewart Avenue for the Fire/Medical     Department.  The bids were:

BIDDER                                              HIPATH MODEL                         BID AMOUNT           

Kansas Communications                               3800                                                    $30,819

Kansas Communications                               3750                                                    $31,564

Dynamic Computer Solutions                                    3750                                                    $32,322          

Dynamic Computer Solutions                                    3800                                                    $32,459          

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to award the bid to Kansas Communications, in the amount of $30,819.  Motion carried unanimously.                                                                                                                                            (1)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to authorize the City Manager to execute an agreement with ETC Institute to assist City staff with the 2005 Employee Satisfaction Survey in an amount not to exceed $21,300.  Motion carried unanimously.                                                                                                                                (2)

The City Commission reviewed the bids for various scrap surplus items for the Utilities Department.  The bids were:

#1  Scrap Copper & Brass
Vendor	Bid
James Reiners	$  1,910.00
Nichols & Starkebaum	530.00
#2  Miscellaneous Scrap Iron
Vendor	Bid
Nichols & Starkebaum	326.00
#3   Obsolete Water Meters
Vendor	Bid
James Reiners	$5,850.00
Nichols & Starkebaum	2,490.00
#4   Sharp SF2214 copier	No Bids
#5   Sharp SF2027 Copier	No Bids
#6   Three (3) computer desks	No Bids
#7   Two (2) computer side desks	No Bids
#8   Unitron stereo microscope
Vendor	Bid
Pharmaceutical Consulting	$26.52
Carrody Buchhorn	8.52
#9   Fisher Accu-Lite bacteria colony counter	No Bids
#10  Hach PH meter
Pharmaceutical Consulting	$26.52
Carrody Buchhorn	8.52
#11  Orion conductivity meter	Bid
Pharmaceutical Consulting	$77.37
#12  Bausch & Lomb balplan microscope	Bid
Pharmaceutical Consulting	$26.52
Carrody Buchhorn	8.52

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to award the various bids to the highest bidders.  Motion carried unanimously.                    (3)

Ordinance No. 7822, rezoning (Z-06-25-04) 1.3363 acres from A (Agricultural District) to O-1 (Office District) (property is generally described as being located at the southwest corner of West 6^th Street and Folks Road) was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                 (4)

Ordinance No. 7906, amending the Standard Traffic Ordinance for Kansas Cities, 2004 Edition, enacting sections 17-103.1 and 17-107.2 of the Code of the City of Lawrence, Kansas, 2003 Edition and amendments thereto, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                     (5)

Ordinance No. 7901, concerning installation and maintenance fee for landscaping at traffic calming devices, was read a second time.  As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.  Nay: None.  Motion carried unanimously.   Motion carried unanimously.                                                                                                                                                        (6)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-07-25-05) for Fox Chase South No. 3, a proposed 98-lot residential subdivision containing approximately 42.532 acres (the property is generally described as being located north of Longleaf, south of Fox Chase South, and west of Fox Chase East Addition); and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Submission of public improvement plans to the Public Works Department prior to recording of the Final Plat with the Register of Deeds Office, for all public utilities, streets, sidewalks [including pedestrian connections within the development adjacent to public streets and connecting to the city park property];

2. Provision of a revised Final Plat;

a. To include revised language for the conveyance of tract A, B and C per the approval of the Director of Legal Services prior to recording of the Final Plat with the Register of Deeds Office;

b. Revised MEBO table to include Lots 30 & 31, 39 & 40, 47 & 48;

3. Pinning of the lots in accordance with Section 21-302.2 of the Subdivision Regulations.

4. Execution of a Temporary Utility Agreement;,

5. 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;

c. Provision of a master street tree plan.

d. Provision of street sign fees.

Motion carried unanimously.                                                                                                          (7)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve a Temporary Use Permit Upon Review (TUPR-08-26-05) for a late night promotion utilizing a search light at McDonald’s, 901 West 23^rd, from September 15, 2005 to September 25, 2005 and December 22, 2005 to January 1, 2006.  Motion carried unanimously.        (8)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve a Temporary Use Permit Upon Review (TUPR-08-25-05) for a late night promotion utilizing a search light at McDonald’s, 3241 Iowa Street, from September 15, 2005 to September 25, 2005 and December 22, 2005 to January 1, 2006.  Motion carried unanimously.        (9)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to receive the staff report concerning the proposed Transportation Enhancement Project applications to the Kansas Department of Transportation for the following categories:  Pedestrian/Bicycle Facilities; Burroughs Creek Recreational Path; Scenic/Environmental; Downtown Streetscape Improvements; and Historic Brick Street Renovation.  Motion carried unanimously.                                                                                                                                (10)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to authorize the Mayor to sign a Release of Mortgage for Loman H. Lathrom, 524 North 7^th Street.  Motion carried unanimously.                                                                                                          (11)

As part of the consent agenda, it was moved by Amyx, seconded by Schauner, to approve alteration of a plat public improvement condition and authorize the issuance of building permits for Monterey No. 8 Subdivision upon completion of necessary waterline and Monterey Way improvements, as recommended by staff.  Motion carried unanimously.                 (12)

CITY MANAGER’S REPORT:

During the City Manager’s Report, Mike Wildgen reported that three City Utility Department employees would be deployed this week to a location north of New Orleans.  Also, a City Planner had been contacted to help assist with disaster relief in the Louisiana area.  He said staff would meet tomorrow with area organizers to determine what needed to be accomplished to respond to the Governor’s call for city support throughout the state.      

REGULAR AGENDA

Consider accepting dedication of easements and rights of way on PF-05-20-05: Final Plat for Sherylville Estates; a Replat of Lot 1, Baker Addition.  This proposed nineteen-lot residential subdivision contains approximately 5.71 acres.  The property is generally described as being located between 1600 and 1800 Riverridge Road.

Mary Miller, Planner, presented the staff report.  She said the Sherylville plat was a nineteen lot residential subdivision surrounded by medium density residential on all sides except for the south side.  The Preliminary Plat was approved in September 2004 and the Final Plat was approved with conditions in August 2005.  She said the applicant requested that condition No. 2 of the Final Plat be addressed which required a temporary solution to the sanitary sewer issue and also wanted to discuss the issue of placing in escrow, their share of the money, for future improvements that would be required.      

Miller said the developer had proposed a temporary solution to accommodate the flow from Sherylville Estates to redirect the flow from pump station No. 35 that currently flowed to pump station No. 28 to another pump station No. 46 with sufficient capacity to handle this flow on a temporary basis.

Dave Davison, speaking on behalf of the applicant, asked the City Commission to reconsider the requirement of placing in escrow, the sum of $42,600 to be used toward a future pump station improvement.  He noted that pump station improvement was already scheduled to be upgraded in 2009 and financed with the Capital Improvement Plan. 

He said before the project was started, he and the applicant met with the Planner of the Day, Brian Dyer, to discuss the possibility of this subdivision.  He said Dyer stated that all utilities were in place as well as sanitary sewer.  Since this area would be an infill development, Dyer felt there would not be any problems approving this development and therefore, the applicant setout to purchase the property and proceed with the development.  He said the applicant was told after the purchase of a portion of that property, during the preliminary platting stage, that sewers would not be available for this project and later after some meetings were held, that sewers would be available.  Finally, after numerous meetings with Planning, Utilities, and City management, a compromise was reached.  He said the applicant’s development would be able to hook up to the City sewers, if the applicant paid for all the costs associated with that compromise which was the pump station short-cut that was mentioned earlier.  The applicant agreed to pay $45,000 out of pocket.  The compromise would take approximately 61 units off of pump station no. 28 in addition to 74 units that were removed last year by adding a new pump station to the north of Northfield Subdivision for a total of 135 units removed. 

After the last meeting, when the compromise was reached, they were told about the wording addressing the compromise in which the applicant would not protest any future benefit district and that language would be on the final plat for approval.  It was not until four days before the Planning Commission meeting, that they were made aware of the requirement that they place $42,600 in escrow for future improvements.  He said never before had anyone had to place money upfront in an escrow account to fund a project that might not take place for 10 or 15 years that had not even been designed yet. 

He said a new subdivision called Northfield Estates, which was a block down from their development, did not need to pay any of the costs associated with the new pump station that Northfield Estates hooked up to other than to extend a trunk line and purchase easements.  

Davison asked that the City Commission to reconsider removing condition No. 2 and substituting language stating the applicant would agree not to protest the formation of a benefit district for pump station 28.  Again, the pump station upgrade was scheduled for 2009 regardless whether the applicant proceeded with his development.   

He said another idea would be to place a timeframe on the escrow money so that if the work was not completed by January 2010, the applicant would receive a full refund.  He also suggested reviewing the estimated costs of the pump station upgrade because they thought those costs were twice the amount as those costs should be.  He said they felt those two choices were fair and equitable and in accordance with past practices.  He pointed out that the development would produce approximately $34,000 a year in real estate taxes.

Vice Mayor Amyx asked if the applicant was willing to accept all of the conditions on the plat with a change in not-to-protest a benefit district for the improvement of the pump station no. 28.

Davison said yes.

Mike Wildgen, City Manager, said the agreement not-to-protest was a condition on the plat and not for the developer, but for the future property owners.

Vice Mayor Amyx asked about that condition on the plat and asked if the future benefit district was only for that piece of property to make those improvements to pump station no. 28.

Wildgen said as he understood it, the benefit district would pertain just to that development.   He said there was a possibility that a larger area could be formed for a benefit district, but he did not anticipate that happening at the present time.  

Vice Mayor Amyx asked if the entire project was based on those 19 lots.

Wildgen said no, the City at large would be included as part of the Capital Improvement Plan for the wastewater side.

Commissioner Schauner asked if the $42,600 represented some fractional share of the cost of the pump station upgrade.

Wildgen said yes, for the future upgrade of that station.  He said this was a capacity issue and was related to the watersheds in that area and where the pumps were located.

Vice Mayor Amyx said the applicant made a purchase based on information that staff might have provided, but a year and a half later, staff found out that pump station was at capacity.  He asked why that information was not caught earlier in the process.

Wildgen said when citizens discuss issues with the City’s Planner of the Day that would not be the time when decisions were made.  He said it would be a wrong decision to base land purchase decision on one discussion with the Planner of the Day.  He said at the same time this issue was going on, the City was building the northern pump station that served the area north of Riverside.  He said at some point in time staff became aware of the capacity issue after staff did the work and looked at the various pump stations.

Vice Mayor Amyx asked if it was staff’s recommendation that after City Commission approval that land should be bought at that time.

Wildgen said no.  He said land purchasers should meet with the proper departments and one of those departments would be the Utility Department before making that type of decision.

Commissioner Rundle asked if there was a basis for apportioning those costs.

Dave Wagner, Assistant Director Wastewater, said staff looked at a couple of recent projects for a pump station approximately that size and came up with proportional costs.

Mayor Highberger said if this project was to wait until 2009 or 2010, he asked if what the developer was proposing to spend on that connection would not be necessary.  

David Corliss, Assistant City Manager/Legal Services Director, said if they waited until 2009, the substitute temporary solution would not be needed and the applicant would save that cost.  He said a benefit district would either be created or the applicant would pay for their capacity along with the 2009 Capital Improvement.   

Wagner said basically the applicant would be doing that twice, once in interim and if their engineering solution satisfied the City as proposed.  He said at the same time the applicant would have the option of doing their interim solution and then participate in the final improvements  or wait until the City was ready to go with the final solution.    

Mayor Highberger said even if this development was to go in after the upgrade of pump station no. 28, that $42,000 would be assessed to that property. 

Wagner said that was staff’s estimate at this time.

Commissioner Schauner said if the money was not escrowed now for the purchase of an equity position in that pump station, the ultimate consumer of lots and houses on that property would ultimately be paying special assessments or some other fee to essentially purchase that equity position.

Wagner said that was staff’s concern was that at a later date it would be very difficult to probably convince the City Commission that a benefit district was needed.  He said in a few years most of those people in that area would have no concept of a sewer upgrade for that area.  He said he assumed those people would be paying for the interim solution in the purchase price and then paying for another benefit district for what the City would be proposing in 2009.

Commissioner Hack said the owners of the property, knowing that $42,000 was needed for those improvements, would apply that cost to the cost of the individual lots.  She said those property owners to those individual lots would either pay for those improvements up front or pay later as a benefit district.  She said one of her concerns was the issue of timing and what was said because it seemed that was one of the concerns that the City Commission heard about a lot and that was that other requirements needed to be met later in the game which put a wrench in the project.

She said she understood Wildgen’s comment concerning purchasing decisions not being made based on one discussion by a Planner.

Linda Finger, Planning Director, said a Planner of day’s duties was to look at a broad overview of whether there were sewers available and/or water available, or if those types of improvements needed to be requested.  She said not being a part of the conversation that Davison had with Dyer, she could not say for sure, but what the Planner’s typically did was look at the maps to point out sewers, upgrades on sewers, lift stations, and water which were general issues.  She said the Planner’s would not know, at that time, the actual capacity or even the proposed number of lots at times.  The details were worked out once an application was submitted based upon timing issues and it would go back to the adequate public facilities types of questions.  She said if a Planner talked to someone several months away, it would be very difficult for the Planner’s in a general conversation to do the analysis type of work that needed to be done to answer a capacity issue.

Wagner said concerning determination of capacity that was if a developer came in at the preliminary plat stage, the developer should provide staff with detailed information and analysis of their situation, what the contribution might be, and their proposed solution.  He said in this case, while staff did not see that information at the initial plat stage, the developer came in with a solution.  He said eventually they did come to an interim engineering solution that would work in the interim if the developer wanted to proceed.  It was just of a matter of who was going to pay those costs.

Commissioner Rundle said if the scenario had played out differently and the developer had gone to the Utility Department and had a conversation, would the developer consistently get an answer that this was something that could be forecasted or would this be addressed on a case by case situation.

Wildgen said many times it was a case by case situation.    He said sometimes the area was raw ground and staff did not know how many units would be built or how many platted lots that would be involved.  Staff tried to work with everyone to let them know what the challenges were for every piece of property that was proposed.  He said that big project to the north of this proposed project was underway at that time and was a factor for any type of development in that area. 

Charles Steinbacher, retired, EBH Engineers, said he had handled the plat for the applicant from the beginning of this project.  He said during the development of the Preliminary Plat, there were conversations about solutions to the sewers which were to take a gravity sewer line all the way to the north which was shown on the Preliminary Plat.  He said the Preliminary Plat was approved in September 2004 and in November 2004, the applicant had found out that a new pump station had been built in that area and that 74 lots were removed from that pump station no. 28.  Because of the removal of those lots, they thought things were going well due to the fact that they would only place a total of 17 lots back on that pump station.   He said the applicant was told by removing the 74 units as well as the additional 61 units, there would be adequate room.      

Schauner asked Steinbacher if all of the communications he spoke about occurred after the purchase of the ground.

Steinbacher said yes.

Commissioner Schauner asked what the cost was of servicing that area by gravity line to the north. 

Steinbacher said it was very expensive because they were dealing with rock.   

Commissioner Schauner asked if the cost was more than $90,000.

Steinbacher said yes, the cost was high.

Commissioner Schauner asked if Steinbacher’s client was prepared to sewer by gravity north if that was the way to make this project work.

Steinbacher said he could not answer that question.  He said there had been conversations about abandoning the project and wait for the lift station because of the rock and the easement problem going north. 

Commissioner Rundle asked staff to comment on the idea of taking lots off the pump station.

Wagner said it was determined that they did not want that alignment to go that way and also the developer found out that it would be very expensive to take those lots off of the pump station.   He said just because there were 74 lots taken off of the pump station did not mean that 17 lots could be put back on because those 74 lots needed to come off and the station was sill not where staff wanted it to be as far as capacity.

Vice Mayor Amyx asked the current capacity of pump station 28.

Wagner said he would need to look at those figures.

Mayor Highberger asked about the pump station capacity relative to projected inflow and design factors such as 3 times projected flow versus 5 times. 

Wagner said 3 times is a KDHE minimum design standard and you cannot go any lower. 

Commissioner Schauner asked if peaking factors were affected by wet weather.

Wagner said yes.  He said inflow and infiltration was a relatively complex theoretical calculation based on the number of connections.  He said the area as well as factoring in a 10 year return interval storm to determine the level of protection and it determined a calculated engineering peaking factor for the number of units in the area. 

Commissioner Schauner asked Wagner about other City staff asking him to participate in discussions about attachments to pump stations and so forth, and asked Wagner if he preferred to be involved in that discussion at an earlier point in time.

Wagner said right now there was a capacity study with a preliminary plat at that stage in time.  It probably would depend on how fast a developer might want to go if they submit the preliminary and final plats.  That might not be time enough for staff to analyze extension of a sewer system or what they provided staff information wise to analyze whether or not staff agreed or disagreed.

Commissioner Schauner asked if Wagner would like different or more complete information from Planning staff that would tell the Utilities Department how quickly the applicant wanted a development on-line.

Wagner said he was not sure who would be responsible to provide that information whether it was Planning or the developer.  He said the earlier staff knew information, the better staff could serve the developer and give them the answers that they were looking for.  He said the disadvantage of providing information too early was that if something changed, then the development process would need to be looked at all over again.  He said once the developer talked with the Utility Department, a project needed to be set.        

Commissioner Hack asked how long the temporary solution would work for.

Wagner said he did not have an answer.  He said that pump station was on the Capital Improvement Plan for 2009.

Commissioner Schauner said at the minimum, the short-term proposal would be sufficient to handle the flow until at least 2009.

Wagner said unless someone came up with extra acreage for a high rise, multi or single-family dwelling units in that area. 

Vice Mayor Amyx said the City Commission’s action would be to accept the dedication of easements and rights-of-way subject to the conditions that were placed on the plat.  He said the request was to make a change on condition No. 2, of the final plat. 

He asked about condition No. 3 that addressed sanitary sewer improvements needing to be escrowed before a plat was filed.  He asked if in condition No. 3, the sanitary sewer improvements were for the existing hook-up.

Corliss said condition No. 2 was the language that he tried to work with that would indicate that they would escrow an amount equal to the property’s proportionate share for the future costs for sewer improvements.  He said condition No. 3 referred to a separate r requirement relating to the fact that if they were going to do internal sanitary sewer improvements, they would need to make sure those costs were paid for as well.  He said there were going to be internal lateral lines in that location as well and those would be developed and financed accordingly.

Vice Mayor Amyx said he did not have a problem changing the language in condition 2 to allow a notice not-to-protest a benefit district in the future.

Commissioner Schauner said he could not agree with that change in condition 2.  He said he did not want to put a future homeowner in the position of an unexpected, rather expensive bill to participate in a benefit district to improve a system that was working properly.  He said the Commission had been faced with that very dilemma multiple times in the past couple of years.  The best recent example was the 31^st and Kasold Homeowners Association that was faced with a substantial bill to improve the water flow through that drainage basin.  He said their argument was that no one ever told them that they were going to have this rather monumental on-going task to keep that field mowed.  

He said he did not know if this had been totally fair to this applicant and he understood the applicants concern.  On the other hand, it was a pay us now or pay us later and the applicant would in fact pass those costs on upfront to purchasers and he thought it was a more upfront and honest distribution of costs than to permit the creation of a future obligation not-to-protest on persons whose names no one knew today.  He said he did not love this idea, but it was the better of the two courses because it was fairer and upfront.

Mayor Highberger said he concurred with Commissioner Schauner.  He said he was afraid if this money was not escrowed that it would come back as a cost to the city-at-large.  Again, he shared Commissioner Schauner’s concerns about fairness to the applicant and hoped the City could improve their process. 

He said basing a land purchase on a one hour conversation with a Planner of the Day, he was not sure that placed obligation on the City.  He said if the purchase decision was made after an extensive conversation with the City’s Utility Department, he would take a whole different position on this matter.  He supported the condition No 2 language as drafted.

Commissioner Hack said she was concerned about the fairness of this process.  She said while she understood that purchase decisions should or should not be made based on conversations with Planning Staff, unless that was something that was given in terms of information up front, that did make it more difficult for the applicant. 

She said she did share the issue of the future costs and fairness to the 17 property owners that would come before the City Commission at a future time, but what the City Commission had before them was also an issue of fairness to the public.  She said this issue was one of the things the Commission was trying to remedy by having greater communication among the City’s departments from the very beginning of a project so that it did not become a moving target to have requirements placed in at the last moment. 

She said she could not support the apparent motion Commissioner Schauner was prepared to make.  She said the applicant had two options, remove the condition for the pump station and agree not-to-protest a benefit district.  She said she understood the difficulty with those options because they were not the developer or benefit district holders.  She asked about the issue of the work not being completed by 2010, that the escrow money would be returned.

Corliss said that money would need to be refunded because money could not be kept in escrow for an indefinite period.  He said it would need to be for a specific project and a specific time period and if it was not used for that project then that money would need to be refunded to the party that provided that money.

Mayor Highberger said if that idea was not paired with an agreement not-to-protest then the City would be left holding the bag on the future improvement.

Corliss said the one point concerning sanitary sewer special assessment benefit districts was that state law allowed you to create a benefit district for sanitary sewer improvements and there was not ability of the property owners to protest out.  The value of an agreement not-to-protest was that it forecasted to those property owners in their title commitment and hopefully in their conversations with their seller and realtor that this was a future financial obligation on the property.  That was the value of the agreement in this instance.  He said it was valuable if the Commission wanted to proceed that way to have that agreement.  The issue was if the City Commission wanted the funds escrowed up front now or did they want the agreement not-to-protest and establish a benefit district in three to five years when the Capital Improvement Project was planned in the City’s Master Plan.     

Commissioner Hack said it seems a little unfair to ask for funds to be escrowed upfront and then held for a period of four to five years.  She said if they did have the ability to place an agreement not-to-protest a benefit district and if state law did not allow people to not protest out and they would not have those 17 people coming to a future Commission, seemed that might be the solution.   

Corliss said that idea could be done.  The other comment was if a future Commission would have difficulty assessing property owners for sanitary sewer improvements when those property owners already had that improvement.  He said they did benefit districts, but in many cases it was for streets that the property owner would see built and would directly benefit because it was an improved surface.  Here the surface would remain the same and it was the internal issues that the Utility Department made happen behind the scenes which that improvement was a necessity.

The other alternative was that the property owner waited until 2009 and then paid their capacity share for the improvements and then moved down the line.

Vice Mayor Amyx asked if staff was afraid that the only time a property owner on one of those lots would be notified that there was an encumbrance on their property was through their title insurance policy.

Corliss said that thinking was a valid concern.  He said that would need to be weighed along with the other issues.  He said he was afraid, but it was a likelihood that most people would not know about it, but he could not guarantee that.

Commissioner Rundle said this was not a pleasant choice, but he supported the proposal of Commissioner Schauner.  He said this discussion and other discussions of this type amplified the urgency to keep on top of the City’s adequate public facilities process that was underway, continue to look at the City’s Capital Improvement Project process, and the City Commission’s goal that long range planning be performed to keep ahead of development and the coordination of departments so that the Commission did not need to have those types of discussions.        

Moved by Schauner, seconded by Rundle, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-05-20-05) for Sherylville Estate replat of Lot 1, Baker Addition, a proposed nineteen-lot residential subdivision containing approximately 5.71 acres, located between 1600 and 1800 Riverridge Road; and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Provide the following revisions on the final plat:

a.         Provide a 10’ utility easement for Westar along the back of Lots 6-11 in Block 1;

b.         Revise Planning Commission Chair’s name to Terry Riordan;

c. Minimum elevation of building openings must be shown on Lots 6 and 7; and

d.         Revise Note 1 to include this text: “The 10% increase in gross square footage or property value is a single or cumulative increase within an 18 month period.”

2. Provide note on plat that states:

“”Prior to the issuance of any building permit on the property in the Final Plat, the applicant shall install sanitary sewer improvements, pursuant to City standards and requirements, required to serve the property and shall escrow funds with the City in an amount equal to the property’s share of the estimated costs of future sewer improvements that will serve the property and the sanitary sewer watershed. The current and future sewer improvements shall be in accordance with the City’s sanitary sewer master plans;”

3. Sanitary sewer improvements must be escrowed before the plat is filed;

4. Submission of public improvement plans for all public improvements per approval of the Public Works Department including:

a.         Interior sidewalks within pedestrian easements;

b.         Water lines;

c.         Sanitary sewers;

d. Streets, curb & gutter profiles including driveway approaches,

e.         Sidewalks; and

f.          Storm drainage system.

5. Pinning of the lots in accordance with Section 21-302.2 of the Subdivision Regulations;

6. 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;

c. Provision of a master street tree plan; and

d.         Provision of street sign fees.

Aye: Highberger, Rundle, and Schauner.  Nay:  Amyx and Hack.  Motion carried.             

Receive presentation from Kansas Drug Policy Forum of Kansas requesting an ordinance banning the possession of marijuana and drug paraphernalia in the City of Lawrence by adults

Laura Green, Executive Director, Drug Policy Forum, presented a report.  She reminded the Commission that many cities around Kansas and around the Country had already enacted ordinances that diverted those types of prosecutions into Municipal Court.  She said there had also been some misconceptions from the Journal World.  She said a poll conducted by LJW asked the question “Should the City create an ordinance dealing with marijuana possession so that the offense would be treated more like traffic tickets.  One of the options the LJW gave on their website was “no it’s a crime and needed to be prosecuted as such.” 

The ordinance that she was asking the City Commission to adopt, diverting the prosecutions to Municipal Court, would have the exact same penalty as there was in the District Court.  Today the penalty was that it was a Class A misdemeanor and punishable by a fine of up to $2,500 and a year in jail.   In a way, she found this a bit misleading and led people to believe that she was asking for decriminalization.  Decriminalization means removal of a criminal penalty.  She said she was not asking for that to be removed and Kansas law would prohibit the Commission from enacting an ordinance as such.

She said she had also asked the Commission to make marijuana enforcement a low priority.  This issue had also received a lot of attention especially from the Journal World and she wanted to clarify that statement.  She said today people had a misconception that no one was arrested for marijuana, that it was not that big of a deal, and law enforcement was not out prosecuting.  She said that was not true, in fact marijuana arrests had risen so dramatically in the last 10 years that heroine and cocaine which used to be the primary drug that drug enforcement units were targeting, had gone down, but marijuana had risen.  She said there had been a lot of speculation about this issue, but the bottom line was that marijuana use had remained steady along with heroine and cocaine use.  She said when she said “low priority” she meant in relation to other drugs.  She said the City’s Drug Enforcement Unit had at least three full time officers.  If they were going by any of those statistics then marijuana enforcement would indeed be their target. 

She said in the future, an administration could take an ordinance, such as the proposed ordinance, set up road blocks, speed traps, or raid dorm rooms, because it happened all over the country.    

She said the top ten crimes that were written up by police were theft, criminal damage, burglary, battery, disorderly conduct, forgery, and domestic battery which made up 55% of the crime in Lawrence.  She said if taking the crime in Lawrence and dividing those offenses by type of offense with alcohol, crimes against children, drug crimes, crimes against people and property crimes, 5.36% of the charges on the reports were drug offenses and if breaking that down further by what type of drug offense it would be found that 85% of drug offenses in Lawrence were for possession of drugs or paraphernalia.  She said if 85% was marijuana, then they needed to find who was selling the drugs.  She said there was a misconception that low priority meant no enforcement and people might come to Lawrence and think it was okay to smoke, but that thinking was not true.         

She said another question that was raised was if Municipal Court could handle all the cases.  She said Municipal Court handled 41,000 citations which was not counting parking tickets.  Last year, in the district court case loads, the number of people charged on every report was 13,000. 

Leslie Eldridge, Community Affairs Director of the KU Student Senate, said last week at their Student Senate meeting they addressed a possible ordinance banning marijuana possession and paraphernalia.  She said they wholeheartedly supported the adoption of the proposed ordinance.

She said the Higher Education Act of 1997 had a provision which was called the “drug provision,” which was section 484R and it denied or delayed a minimum of one year students with drug convictions from receiving Federal financial aide.  Those students who were current students at the University of Kansas would have their financial aide suspended and those applying would be unable to receive financial aide from at least one year depending on the severity of the conviction.  She said this did not apply when drug charges would be tried on a Municipal level.  Since they were the student senate they were supporters of student rights and they believe that all students had the right to have an education and to keep their financial aide.  Through the adoption of this proposed ordinance, more students could keep their financial aide and students would not be barred from applying for financial aide for any specific amount of time. 

She read a “be it resolved” clause in their resolution:  “Therefore be it resolved by the University of Kansas Student Senate here assembled that they support action by the Lawrence City Commission to move jurisdiction over first time marijuana and paraphernalia possession cases to Lawrence Municipal Court with the proposition of a City ordinance on marijuana and paraphernalia possession.”  She said they supported this specifically because it would prevent students from losing financial aide and this was also a student rights issue.  She asked the City Commission to consider the proposed ordinance.

Donald Yahn Sutherland said he would like to see marijuana somewhat decriminalized.  He said drugs were detrimental to Lawrence’s problems with burglaries, thefts, and alcohol.   He said Municipal Court should handle the marijuana problems in this community.

Kim Richter, Lecompton, Kansas, said she was very much in favor of protecting students from losing their student financial aid.  She said she was a researcher and did research on how to help people quit smoking and she focused on people with a history of drug treatment.  She said she was very well acquainted with drug affected families.  She said she would hate to see the Police stop addressing this issue at all or for treatment options to become less available as a result of a change or introduction of an ordinance. 

She said some of her concerns were what would happen to someone right now when they were brought to district court; what type of treatment options were available; and what different things happen with adults versus children, and the changes that would occur with the adoption of an ordinance. 

Green said this ordinance would not cover anyone who was a juvenile so whatever happened currently would continue to happen. 

Richter said if the ordinance did not address children under the age of 18 years old, how would it help those kids avoid losing their financial aide. 

She said concerning treatment options, Senate Bill 123, diverted prosecutions of people in district court into treatment and currently that Bill provided a sum of money to the counties for use.  She said the prosecutor’s office said the money would still apply.  Even though the person was in Municipal Court, they still had every corrections option.  She said there would not be any severing of treatment options.       

Commissioner Rundle said this was a great issue to line people up on sides and decide whether Commissioners were crazy or were thinking things through.  He said he would support this issue and he hoped people would take the time to think those things through rather than taking a quick reaction to a poll in the newspaper.  He said what was persuasive was the impact on peoples lives if they were subjected to the penalties that were harsher than they needed to be.  The ability for people to have a second chance to continue on some course that made them productive, contributing members of society was lessened whenever there were not those harsh penalties.

He said he was reminded of first Bert Nash Mental Health Summit held on the occasion of the 50^th anniversary of the City’s local community Mental Health Center.  One of Saturday’s speakers was the Director of Public Health Practices at Harvard University and she also had experience out on the streets as well.  He said her focus was on crime among young people and children and focused on the trend at that time of the three strikes your out approach and how in that case where young people made mistakes, it did not acknowledge the opportunity for them to learn from their mistakes, to be forgiven and given the opportunity and support to turn themselves around.  He said they needed to be more responsive in that kind of way.  She had developed 40 developmental assets for childhood development.  The focus was on prevention instead of the crisis response.  He said this ordinance still had penalties and consequences and repeat offenses could follow a parallel course of what existed now.  He said this ordinance would afford people the opportunity to step back, reconsider, and start over. 

Commissioner Hack said she would not take a position one way or the other since they do not have an ordinance to do anything with.  Given the information that was presented, she asked staff to make recommendations and she would like to see what other communities had done and make some comparisons.  She also wanted to know the fine structure. 

She said on one hand this issue should not be a low priority with law enforcement personnel and at the same time if they placed those infractions in Municipal Court that would allow law enforcement personnel to investigate and work with District Court to prosecute that large number of more serious crimes was saying polar opposites.  She said if they were looking at her to say that this issue would be a low priority if it was moved to Municipal Court, she would not support that issue under those circumstances.     

Commissioner Schauner said Commissioner Hack said it well in that they did not have an ordinance in front of them and there were a lot more questions than answers at the moment.  He asked for some analysis of what the cost impact had been to the cities that had introduced ordinances like this type of issue, did they need additional personnel, and had it been a zero sum game in terms of revenue versus expenses. 

He said he did not think that this Commission was in the business of telling the Police Department how to prioritize law enforcement questions.  He said he would like to have more information about this issue as a concept, what other ordinances looked like, and whatever staff input there was.

Vice Mayor Amyx said he agreed that this issue should never be a low priority because it was illegal.  He said if someone was prosecuted in Municipal Court, he asked what would come out of that prosecution would be different than what came out of district court as far as how it affected student loans in the future.  He suggested having discussion about what would be the minimum fine.  He said the City’s Municipal Court was very efficient and did a good job.

Mayor Highberger said he supported the proposal to draft a City marijuana ordinance.  He said moving those prosecutions to Municipal Court made a lot of sense.  He said it was his understanding that it would be for a first possession charge and a second possession charge was a felony prosecutable only in District Court.  The effect of the Higher Education Act was too harsh for an offense like this type because it was not three strikes your out, it was one strike and you were out.  He said they were talking about a rehabilitation law.  A chance for college education was one of the best things that could be done for rehabilitation.  He said it would be a much more efficient use of their judicial and law enforcement resources to prosecute those things in a simpler fashion through District Court and he strongly supported the proposal.

Vice Mayor Amyx asked if there would not be anything on a person’s record after the year of the diversion. 

David Corliss, Assistant City Manager/Legal Services Director said there would be a record of the diversion.

Vice Mayor Amyx said if a person completed a diversion and for some reason that person was charged with another offense at the end of a year, would it be a second offense and would it automatically go to district court.

Corliss said he did not think so.  He said a typical requirement of a diversion was that person should not commit an offense during the diversion time or the diversion would be revoked.

Scott Miller said if it was a DUI prosecution, as opposed to a drug prosecution, there was a specific provision in the state statutes that counted the first DUI prosecution as a prior offense for the purposes of sentencing enhancement.  In the situation of drug prosecution there was no provision in State law that had that same effect.  If a person was charged after the expiration of the diversion period, that would be a first time offense and it would not be shipped to district court as a felony under existing State law.

Moved by Rundle, seconded by Schauner, to receive the presentation from the Kansas Drug Policy Forum of Kansas and refer to staff for a report on possible implementation and draft ordinance for placement on a future agenda.  Motion carried unanimously.                   (14)

Moved by Rundle, seconded by Schauner, to recess for 5 minutes.

Receive recommendation regarding a Library Programming Consultant.

Bruce Flanders, Lawrence Public Library, said he wanted to present to the City Commission a recommendation from a committee that had been working diligently to review a possible consultant to assist them in the Library Expansion Project.  He said they were coming to the City Commission after their deliberations and recommending that Jeffrey Scherer, who would be the principal consultant who worked for Meyers, Scherer and Rockcastle, Ltd – Minneapolis, be engaged to provide library program consulting work for the Library expansion project and respectfully asked for approval by the City Commission of that consultant work.       

Mayor Highberger called for public comment.

After receiving no public comment, Mayor Highberger said he was on the committee that did the selection and the committee was very thorough and he highly supported the decision that was made.

Commissioner Schauner said he not only supported the decision, but would like to continue ramping up public support for this project.  He said it was a vital project and Lawrence needed a 25^th Century Library and the City would get one if they continued on this path.

Commissioner Hack said this move was a step forward and supported the project.

Moved by Hack, seconded by Schauner, to authorize the City Manager to execute the agreement.                                                                                                                                   (15)

Consider consulting engineering agreement with Black and Veatch for siting study for the water reclamation facility to be located near the Wakarusa River. 

Mike Wildgen said this issue was a follow up to staff’s recommendation for the siting study consulting services.  He said the project was ready to proceed and would lead the City to a second Wastewater Treatment Plant. 

Mike Orth, Black & Veatch, said this new Wakarusa facility was planning into the future.  He said the growth projections were out there and the planned development of the southern portion of Lawrence within the Urban Growth Area and the western portion that this facility was going to handle was going to have a lot of significant issues that were going to require a lot of public engagement.  He said that was what their project approach was focused on was how to engage the general public and every stakeholder which might be a property owner to every rate payer within the City.  He said they had outlined in their scope a very comprehensive approach to gather that initiative from the very get go and they encouraged that the City Commission be active in that process.  He said they would have established static kiosks with information for public dissemination, an active website, various stakeholder meetings, various workshops, web broadcasts, advertisements within the local news media outlets that were planned for a wide broadcast of information to gather opinions because all those issues related to how the facility was going to be used, what it would look like, and what treatment process was going to acceptable to the adjacent landowners and community were vital answers that they needed to gain input on for this project to be a success.

Commissioner Schauner asked what role unknown and perhaps unknowable land use decisions would have on the siting work.  He assumed there was some connection between what land uses were proposed along the river that would have some impact on their siting work.

Orth said Horizon 2020 led by Planning set the footprint for what that land use was going to look like.  He said they would be engaged with City staff to be an important stakeholder along with some of their comparison partners on the County Commission. 

There were elements within the Horizon 2020 plan that they would need to abide by. There would be issues that would come up regarding floodplain development and what the current City standard was versus County standards because the City standard was more rigid than what the current County standard was.  He said they would look at all the issues and attempt to identify with a broad based stakeholders group that had insight into what all those plans looked like in the future and try to encapsulate those issues for the governing body and City staff to help assist in making those decisions.  Their role in this project was the person who was pulling all of that information together and getting the group acting together as a cohesive unit.          

Commissioner Schauner said if Orth viewed Horizon 2020 as the guiding document for the siting work.

Orth said Horizon 2020 was the starting point.

Vice Mayor Amyx asked if this siting study would give them the site once this portion of the agreement was completed.

Mike Wildgen, City Manager, said yes.  He said Black and Veatch would recommend a site, but would not include the purchase or acquisition of the site.

Moved by Hack, seconded by Amyx, to authorize the City Manager to execute an agreement with Black and Veatch for siting study for the water reclamation facility to be located near the Wakarusa River.  Motion carried unanimously.   `                                                    (16)

Receive proposed ordinance regulating blasting from the Uniform Fire Code Board of Appeals

Tom Waechter, Chair of the Fire Code Board of Appeals, said this issue was first brought to the board back in August 2004.  The major changes since the November version was that they looked more closely at several issues such as:

·     Enhanced notification requirements:  Notice to owners of real property or utility lines located within 1500 feet of the blast site will be sent by First Class U.S. mail.  Notice to owners of real property and utility lines located within 500 feet of the blast site will be sent by certified mail return receipt requested;

·     Informational Meeting with Property and Utility Line Owners Within 500 Feet of the Blast Site:  Permit applicants are required to schedule a meeting to discuss the blasting operations with affected property owners in advance of receiving a permit;

·     Posting Weather-Protected Copy of Map at Site:  The site map, along with the City blasting operations permit, and the state permits for on-site personnel will be posted at the site;

·     Review of Blasting Plan By Expert:  Anytime blasting occurs within 500 feet of a structure or utility line, the applicant shall hire a blasting expert to review the blasting plan and advise the Fire Marshal whether the plan complies with the City Code;

·    Copies of Pre-Blast Surveys Will Be Available to the Property Owner Requesting the Same.  The actual cost of reproducing the survey may be charged to the party requesting the copies;

·     Minimum Liability Insurance Coverage Amounts Are Increased to be consistent with industry standards; 

·     Seismology Equipment Must Be Calibrated:  The applicant must show proof that the seismology equipment to be used at the blast site has been calibrated and certified within one year of the proposed blasting;

·     An Application Fee of $100 per Permit Shall Be Collected;

·    Air Blast Limits From the N.F.P.A. (National Fire Protection Association) Are Inserted; and

·     An Application Checklist is inserted into the Code to advise the public as well as prospective permit applicants of the requirements for a blasting operations permit from the City.

He said in terms of reorganization of the ordinance, he identified a few key items that staff used to reorganize and update the document.  He said working with staff they were able to reorganize the proposed ordinance around International Fire Code Language.  The previous documents both existing ordinance and the proposed draft that was brought to the Commission in November were still built around Uniform Fire Code Language.  He said that seemed to be a prudent move because of the knowledge that their board would be moving to adoption of a new code eventually and it would eliminate one step in revisiting this ordinance.

Also, the ordinance was organized by least restrictive to most restrictive requirements.  When reviewing the ordinance, it started out with the areas that were 1500 feet or beyond, 500 to 1500 feet, and then within 500 feet in terms of the requirements.     

Mayor Highberger called for public comment.

Jes Santaularia, Lawrence, developer of a 99 unit condominium project located at 4500 Bob Billings Parkway, said if and when this ordinance or any modified ordinance was adopted by the City Commission, he asked that the Commission provide a deferral period so that developers who had projects that were in the pipeline had the opportunity to complete their projects or at least the present phases of their projects under the present ordinance rather than having a ordinance that was adopted, therefore, making them recertify, re-comply, and re-bid those particular projects.  He asked that the City Commission defer the ordinance at least three to six months to give those projects in the pipeline the opportunity to get started and completed.    

Commissioner Rundle asked Santaularia what he would need to redo at this point.

Santaularia said in their first phase they had quite a bit of rock on their project, in fact, they had to remove approximately 1,200 yards of rock and they had bid that project under the existing ordinance.  If the ordinance were adopted, then they would need to re-bid the project as the contractor would then have new rules and regulations with which to comply, a new notice period, and would extend the time, therefore increasing the cost of the first phase of their project which would be in excess of $100,000 and that was a significant amount of money. 

Commissioner Rundle asked if Santaularia had sent out notices.

Santaularia said they had not sent out notices, but they would want to do the notices under the existing rules, not under the new rules and that was the way the project had been bid to them. 

Commissioner Rundle said if the notices were not completed, he did not see the significance.

Santaularia said the rules associated with the new ordinance were significantly different than the present ordinance.  He said if they were to receive a permit today to get started, they were not ready to permit this project, but would be ready in the next few weeks. 

Mayor Highberger asked Santaularia if he had to re-bid the project would their total extra expense would be in excess of $100,000 under the new rules.

Santaularia said that was correct.  He said it was the cost of the blasting and the extenuating time associated with compliance with the rules.

Steve Glass, President, LRM Industries, said Toni Wheeler, Staff Attorney and Rich Barr, Fire Marshall, deserved a lot of credit as did the Board for creating an ordinance that was more readable and usable.  He said having said that, he did not like the rules.  He said he had three points that he wanted to make. 

The first point was that the ultimate effect of this change was going to mean that in some instances, rock would be removed by breakers which were large, mounted hammers. That type of procedure was much more expensive and was done much more slowly in terms of the actual breaking, but that procedure could be done without having to go through that process.  He said particularly those developers who wanted to move ahead quickly with a project and not encounter going through that process were going to say that they would eat the extra money to get the project moving and end up with a breaker.  He said if people did not like blasting wait until they had a breaker in their backyard.

The other issue to expand on was that the effective date of the ordinance be set some point in the future whether it was a month or three months rather than the effective date being the date the ordinance was published in the paper which was the standard procedure.  He said this would allow projects, such as the project Santaularia was planning to develop, to continue under the rules which those projects were bid.  He said as a contractor they bid that project three or four weeks ago and they could only assume that the rules in effect at the time they were bidding were the rules that they should operate under.  He said they could not anticipate when this issue was coming before the City Commission or when the effective date might be.  A similar project with the same kind of issue was the project that the City took bids on Monterey Way and Peterson Road.  He said it was not just Santaularia project that was impacted by this issue.  He asked the City Commission to give some time period to allow those projects that were in the pipeline to precede the way they had been conceived and bid then that was a fair and equitable approach. 

     Secondly, he said that any project that was started under the existing ordinance should be allowed to finish under the existing ordinance.  He said it was his understanding that this was typically the way it had been done such as when new building or plumbing codes were adopted or projects that were in the midst of construction were not suddenly told to forget about what was already approved and that there was a new set of rules.

Mayor Highberger asked if there were any provisions in the proposed ordinance that were particularly unreasonable.

Glass said the spreadsheet that was presented showed that this proposal was, in just about every category, more restrictive than in surrounding communities.  He said part of what bothered him about those changes was that no one had told him, so far, of a problem that had existed other than the natural human concern when mentioning blasting.  He said he was not aware of damage that anyone had suffered and it had never been identified to him.  He said in his opinion, they were solving a problem that did not exist.  He said it was reasonable to make sure people were well notified because when hearing that boom it was human nature to have some concern, but when they needed to start notifying people 1,500 feet out in certain parts of town that was an awful lot of people and a lot of those that were 1,000 to 1,500 feet away were never going to know about the blasting, if they had not received the notice.  Certainly those people within 500 feet should have an opportunity for the pre-blast inspection and the meeting because it was not particularly onerous, but everything that was done along this line adds time and costs.

Commissioner Hack asked Glass to discuss the need for a blasting expert.

Glass said they did not do blasting themselves, they subcontracted that blasting out.  He said Russ Pilshaw typically handled any blasting for his company and Pilshaw was probably better able to address the questions regarding blasting experts.  He said there were engineers around that were very knowledgeable that dealt with blasting on a regular basis and were very capable of supervising the operation.     

Commissioner Schauner asked if it would generally be true that even with the additional costs associated with those changes as proposed in this new ordinance, that in most circumstances that it would be still less expensive to comply with those changes than to use a breaker method to remove rock.

Glass said that would depend on the extent of rock on the job and where it was located.  He said if you were located well west of town out in an open field then it would be cheaper to blast, but the closer you get to existing development and the more rock their was, then it would be a bigger issue.  He said if there were 500 cubic yards of rock on a project, then that might be a breaking point where it was not worth the headaches and that area could be done with the breaker method.   Each project would be different and would depend on the type of rock. 

Commissioner Schauner asked if for each project, was an analysis performed to determine whether that project passed the tipping point and became more expensive to blast or more expensive to break. 

Glass said yes.  He said in order for Pilshaw to move his equipment in whether it was under the current or proposed ordinance, there were certain costs that were fixed for a project and the bigger the project, some of those costs expanded.  He said the more pre-blast surveys that were performed, the more that expert would charge.  He said he was not suggesting changing the ordinance because a pre-blast survey was not needed for breaking rock.  He said he had not performed an analysis to say this was the breaking point.

Commissioner Schauner said whoever was doing the work would make some decisions or investigation where that tipping point was.

Glass said typically they would rely on the contractor who had given the price and the contractor might give them an option if they wanted the rock broken, they could start tomorrow, but it would cost “x” dollars more.  If they wanted to blast, there was going to be a delay period so it came down to a time versus money situation.  He said he had enough trouble running his own business and he did not try to run the developers’ businesses.          

Commissioner Rundle said he was trying to get a handle on increased costs.  He said the expanded radius for notification meant there were more mailings. The certified mail for the people that were closest, he was having trouble figuring out why those mailings would add so much time and costs.  He said they had to do some kind of notification anyway and also a pre-blast survey.  

Glass said because within 500 feet everyone had the right to ask for a pre-blast survey and that meant the expert had to visit and photograph every house that asked for the pre-blast survey which took time.  He said typically, the expert was not sitting around waiting for calls and the expert would need to work those surveys into his schedule.  He said each day the developer was paying interest on the land they bought and other costs.

Commissioner Rundle asked if there was no pre-blast survey requirement in the existing ordinance.

Glass said there was a pre-blast survey.  However, he said his concern was with this ordinance and with the additional notification they were going to be scaring a lot of people unnecessarily, but he was not saying that they should be secretive about this issue.  One of the issues with blasting and even breaking at times was people perceive that they might be some damage when in fact there had not been any damage.  He said when that would happen someone would need to deal with that issue and it ultimately would add costs.  He said it might not be to that project, but it might be on the insurance rate that the blasting expert would need to pay to be in the blasting business. 

Commissioner Rundle said in comparison of the pre-blast radius for all of those different communities, he asked if all those communities were similar in that if that person was in the pre-blast radius that they would need to offer a pre-blast survey.         

Glass said he could not answer that question because he did not work in most of those cities.

Commissioner Rundle said it seemed as though 5 out of 7 cities surveyed were the same as ours and it did not seem as though they were increasing the number who could possibly have a pre-blast survey.

Rich Barr, Fire Marshall, gave a comparison of the old code and proposed ordinance.  He said in the existing ordinance they required occupied dwelling units within a 1500 feet radius to be notified, but there was no criterion on how they were notified.  Under the new ordinance it stated that notification needed to be by U.S. mail.  In the existing ordinance and the proposed ordinance pre-blast surveys were required within a 500 feet radius. He said the requirement for the expert was a change from the existing ordinance to the new.  That expert’s job responsibility would be to review all of the documentation and review the pre-blast survey logs and to ensure that they were meeting all the points of this proposed ordinance.  He said the expert would not be sitting on site watching blasters load holes.  He said with the issue that brought this issue to the forefront, they ended up requiring a blasting expert to be on-site whenever blasting was occurring within 500 feet of an occupied dwelling and at that time, they did observe the loading of holes.  He said through their discussions with the Board, the Board felt that this review made more sense, a review of the total package before the blasting occurred.  He said that was a fairly significant change.  The notification of people within 500 feet now was required to be done by certified mail. 

He said he was trying to provide information because he was not going to get into a discussion on the financial aspects of this issue, but he was not sure where the $100,000 was coming from.  He said they were not requiring a blasting expert to sit on site all day, everyday when shots were going off within 500 feet of a dwelling.  He said those experts would review the blast plan and give their authorization, was his interpretation of how the Board came up with that proposal.  He said there were baseline similarities between the existing ordinance and the proposed ordinance.

Commissioner Hack asked how long the current ordinance had been in effect. 

Barr said the ordinance had been in effect since 1989.

Commissioner Hack asked if there were damage reports as a result of the current ordinance due to blasting.

Barr said there had been no substantiated claims of damage since he had been writing permits.  He said he heard people talk, but he had not witnessed any damage or had been provided with documentation that damages had occurred due to blasting. 

Commissioner Amyx said concerning notification, he asked what would happen if an emergency arose where there was a need to go through rock.

Barr said if there was an emergency situation where it had to occur it would go before the City Commission and that would be within a week and the City Commission would consider whether it was worthwhile or not.  

Commissioner Rundle asked if that type of emergency ever happened in the past.

Barr said no, not to his knowledge. 

Russell Pilshaw, Pexco Co., said they did some of the drilling and blasting in Lawrence.  He said the City of Lenexa’s current blasting ordinance did not require the pre-blast surveys, but those surveys were encouraged.  He said that was the entire Lenexa blasting ordinance.  He said what was being done here was trying to reconstruct over 1,500 pages of federal, state, and county regulations on explosives and he did not think it was necessary. 

He was asked last time this discussion was brought forward if he thought he could live with this law and he said he could live with this law, but the costs were going to be astronomical.  As far as the delayed time in a project, he had down time on project in Lawrence because of verbiage that had ended up costing him.  He said this regulation spelled out how he needed to communicate the blasting to the neighbors and as a result, there was going to be at least a 15 day delay in any new projects that came up because of timing for pre-blast surveys and the communication of the neighbors. If there was any response from a utility company that wanted to delay the project, that utility company could delay that project.  He said that would occur even he if he had his equipment on site and was scheduled to be at that location and the utility company could still delay that project.  He said according to the new regulation, he had to somehow place on the drawing all utility lines.  He said what was spelled out in the law was anything such as cable and phone had to be accurately drawn on that map.  He said there was no way he could live with that regulation because he would need to hire engineers to come in and get people to survey all of the power lines, telephone lines, and gas lines to put those on the City’s geographical information systems map because those types of utility lines were not on the map today.  He asked Barr if that thinking was correct.

Barr said no.

Pilshaw said that the ordinance stated that he had to have a drawing with the lines.

Barr said he had to have distances from the blasting from all those utility lines which was stated on the permit application.

Barr said what needed to be done was that Pilshaw needed to offer pre-blast survey’s to utility lines that were within 500 feet.  That was the extent in which Pilshaw had to indicate utility lines.  Barr said he and Pilshaw had discussed that issue.

Pilshaw said he thought that was taken out of the ordinance.

Commissioner Rundle said he thought the City was providing the GIS maps which would have the utility and the property lists.

Pilshaw said in the blasting plan, he needed to have a designation of the proposed pre-blast survey structures and utility lines within 500 feet so those lines needed to be on the map.

He said there were 15 pages of an ordinance that did not say anymore than that because that was covered under state and federal regulations.  He said if the Fire Code changed, that would change. 

He said they were working on a project that would hopefully be permitted next week for the Monterey Way, Peterson Road project.  He said this project had 246 pre-blast survey structures and over 1,100 letters had to be sent to residences telling them about the blasting to build a road. 

He said if a person was going to be in construction or any type of business then insurance was needed to keep in that business.  He said a business would not stay in business if that business had a lot of claims.  The entire reason for insurance was to protect the consumer.  He said if he did not have insurance he could not receive a permit from federal agencies to purchase explosives and he could not get a permit from the state agencies to detonate the explosives.  He said he did not understand the redundancies. 

Glass said Pilshaw’s point was accurate.  He said it was very clear on page 11 of the ordinance that the blasting plan said that a scaled drawing with distances to structures which structures was defined to include utilities, and designation of proposed pre-blast survey structures and utility lines within 500 feet of the blast site.  He said at least the application checklist required those guidelines, which was part of the ordinance.   He said whether the verbiage in the ordinance did or not, he had not had time to re-read that ordinance.

Commissioner Rundle asked Glass about page 4 of the ordinance under “c”.  He said it still looked as though the City was trying to help as much as they could by providing the scaled drawing that had all the information that was available in terms of structures and utilities that was in the City’s GIS system.

Glass said he did not know what the City had in the way of information about cable lines or underground electrical lines. He said certainly the City had stormsewers and water lines, but he did not know if the City had that additional information.   

Chuck Soules, Public Works Director, said the City had streets, water, sewer and stormsewer lines on the GIS system, but the City did not have private utility information.

Wildgen said staff could give out the information on how to contact those private utility companies.

Glass said everyday, he received locates on utilities where utility companies did not know where those lines were located.    

Barr said as was always the case, when reading something a person could always find some issues that were not the intent of the Board and one issue was specifically utility lines.  He said the Board had lengthy discussions about the need for determining putting utility lines on scaled drawings and the Board had found that there was no mechanism for placing those utility lines on drawings.  He said the City’s GIS did not have utility lines and in his conversations with the GIS Coordinator many of those utility companies could not or were reluctant to give out that information.  He said the Board clearly understood the utility lines were not going to be something that could be placed on the map and that was one of the reasons why the definition of structure that was placed in the proposed ordinance did not include utility lines.  He said there was a separate definition for utility lines and if looking at the proposed ordinance they put structure and utility lines when they wanted to talk about both.  The Board’s intent was not to require scaled drawings of utility lines.  The Board’s intent was to ensure through the locate system, that when they had utilities within 500 feet of the blasting, that those utility companies would be notified that blasting was occurring and then they would also require those utility companies to respond back in writing to authorizing that blasting and if they did not respond back within 10 days, that was basically giving them permission to issue a permit.

Glass said he was not sure that he agreed or understood where Barr was coming from because when reading page 2 of the proposed ordinance, the definition of structure did not exclude utility lines.  He said the ordinance read: “a structure shall mean a combination of materials or piece of work built or composed of parts joined together in some definite manner for occupancy use or ornamentation.”  He said that phrase to him stated it was a utility line.  He said there was a separate definition of utility lines, but in that definition he did not read that it was automatically different from a structure.  He said he did not know that this was an issue that he recalled specifically addressing before and obviously an oversight on his part, but that was something that needed to be addressed in the verbiage.         

Commissioner Rundle asked Barr if there was any problem with specifically excluding utility line from structure, such as adding under structure this did not include utility lines.

Barr said he did not see any problem with that idea.  He said typically in code speech, if there was a general definition and then a specific definition, the more specific definition always ruled.  He said in this case, since there was a specific definition of utility lines that would apply because it was a more detailed definition than the definition of a structure.  

Commissioner Rundle asked if the language in the proposed ordinance did say that utilities were excluded from the requirements of the drawing.  He said the language in the ordinance simply did not mention utility lines or he asked did it exclude those utility lines from not being required.

Barr said the ordinance mentioned structures and utility lines wherever the Board chose to have both of those terms as far as the drawings.  He said if they needed to change that to say structures with the exception of “utility lines” defined below, they could do that because he did not believe it was the Board’s intent to put utility lines in with the definition of structure.    

Mayor Highberger suggested a legal opinion on that question.

Toni Wheeler, Staff Attorney, said on page 3 of the proposed ordinance, subsection 3, addressed blasting within 500 feet, the application had to be accompanied by the blasting plan and the blasting plan included those items.  Under subsection C, the distances to the structures needed to be shown to the extent that information was available to the City and then there was the designation of a proposed pre-blast survey structure and utility lines.  The Board wanted to give utility companies the option to request a pre-blast survey if those companies thought that was in their best interest.   She said it was not the Board’s intent to have the map show every utility line or telecommunication line because they had found that they did not have the information to have that required.  She said the Board wanted to make it a provision to a utility company that they could request a pre-blast survey and if they requested that survey, they wanted the contractor to makes sure that survey occurred.         

David Corliss, Assistant City Manager/Legal Services Director, said staff’s interpretation was that structure and utility lines were separate elements, but Commissioner Rundle’s suggestion that staff add a sentence to the definition of structure to indicate, for purpose of this ordinance, structure shall not include utility lines, could be added. 

He said one of the principles of drafting was that when defining certain terms, staff’s interpretation would be that structure and utility lines were separate because they were defined separately.  He said to help clarify those terms, staff could make if very clear that the definition of structure shall not include utility lines and that should respond to that concern.     

Commissioner Rundle said he would hate to be responsible for the type of cost overrun that was raised earlier.  He said he was still having trouble believing that there was that much difference in cost.  He said one of the key elements for him was that even under the current ordinance, it required notification and unless that was done by registered mail, you could not guarantee that people were notified.           

Mayor Highberger said the proposed ordinance placed the City on the high side of requirements and he did not see anything that would make him vote against that idea.  Also, he did not have any problem deferring the start date for people who had bid projects based on the current ordinance.

Commissioner Hack said what had been done in the past with moratoriums on an area excepted things that were in the pipeline or even phases of a project that had already started in fairness to the applicant.  She said there was precedent and it had been done before to delay the effective date of that ordinance or make accommodations for those projects that were already in the pipeline. 

She said the process for notification was fine, but she had questions about the necessity for a basting expert because she was not sure that was essentially overkill.  She said that would be added expense that was perhaps not necessary.     

Commissioner Schauner said he thought what started this whole process was the perception on the part of a number of people in West Lawrence that blasting was taking place close to their backyard and that those people believed there was a rather casual approach to notifying people about that blasting.  He said people who worked in blasting on a regular basis would think that this issue was not a big deal, but for the average citizen, if telling those citizens that rock would be blown apart 600 feet behind their house, it would get the average citizen excited and was an emotional issue.         

He agreed with Mayor Highberger that this ordinance was on the high side on a couple of issues, but he noticed with respect to pre-blast radius the City was pretty consistent with the other communities. Notification radius seemed to be a little on the high side, third party monitoring would be high, informational meetings were high, posting a notice in weather proof area, this City was the only one, but they did not seem to have great costs associated.  He said this was a little on the high side, but he could not think of a reason not to approve the ordinance.  He said as he thought through this process if time was money that would still be a significant shorter period of time than going out with a breaker and tearing rock out manually.   He said this ordinance accomplished the common task of community safety and efficiency for the project.   He supported the ordinance as written and he did not have any objection of finding a way to delay its implementation to satisfy projects currently in the pipeline.           

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

Vice Mayor Amyx said he had the opportunity to be involved in a number of blasting projects in his tenure as County Commissioner.  He said he did not know if the regulations needed to be so strict, but the most important part of the proposed ordinance was a notification process and how that could be implemented.  He asked about an acceptable effective date to this ordinance.     

Commissioner Rundle suggested January 1, 2006.

Commissioner Hack asked if there was a difference between an effective date and projects that were already in the pipeline. 

Corliss said there were two questions which were: when would this law be effective for new requests for permits; and what would be done with existing permits or projects and in some cases, being phased over time.  He said it would be helpful for the City Commission to indicate what day they wanted this ordinance to be effective which might be January 1, 2006 for new permit applications to Barr’s office and the rules and regulations would be enforced under the new ordinance.  He said if someone had applied for a permit before that time then staff understood that they would then be allowed to use that permit even into 2006 for blasting purposes.  He asked Barr if that thinking would work for him. 

Barr said the issue for him was when that time started.  He said he heard conversation about Bella Sera and he knew that issue was coming up but no one had approached him on blasting in that area at all.  He said the only current blasting issue was the Peterson and Monterey Way area.  He said he had also heard about Hutton Farms and Fall Creek from talking to people, but there had not been any approach for a blasting permit.  He asked when a project would be in the pipeline.  He said when they would request the GIS map was when he thought the process was started for blasting.  He said it was not when he received the permit application because many times the permit application came in when they had completed the per-blast surveys and when they received the GIS map, notifications, and everything had been completed was when they were wanting the permit in hand.  The application did not come to him 30 days in advance or 15 days in advance, but when they were ready for the permit and they provided the whole packet of information.  He said the pipeline needed to be defined.

Corliss said the one thing he wanted to point out was Monterey Way and Peterson were one year projects.  If they wanted staff to follow this new ordinance for that project, staff would need to get a change order request from the contractor saying that those were the costs that were fairly attributable to complying with this new ordinance.  He said the Commission had control over Peterson and Monterey Way if they wanted to have that ordinance impact that project. 

Commissioner Schauner said when a project was put out to bid and there was a rock issue that was either going to need to be hammered or blasted, he asked if someone was notified in the City government on a site plan or some other document that would reflect that need.

Santaularia said typically as a developer they would not notify City government because in the original site planning process they did not know exactly how much rock was there and the best method to take it out.     

Glass said from a contractor’s perspective, they thought the developers were hoping they did not figure out the rocks and then they would bid a cheaper price.   He said Santaularia was right, it was not typically the developer’s responsibility.  What the developer typically did, although it was not always done, was to provide borings of the soil or rock which then gave the contractor sufficient information to calculate the amount of rock they would anticipate would be at that location.  Typically then they were at risk after that, but nothing would be filed with the City and Santaularia’s project was a perfect example.  He said if they were successful on that project, they would be a subcontractor to a general contractor.  He said until that contract was resolved, he would not have a contract and until he had a contract Santaularia would not have a contract and there was some time that passes.  He said it was different from a City project somewhat in that in a private project you would typically give the owner or developer a price and then they might need to go finalize their financing or make some changes.  The City took bids and the next week they bring those bids to the Commission for approval and then everything began.  He said the private projects moved slower. 

He said the January 1^st date was a reasonable date as long as there was a condition that those projects that had applied for a permit by January 1^st were then allowed to continue to operate under the current ordinance for the duration of that project. 

Commissioner Schauner asked by permit did Glass mean a building permit or blasting permit.

Glass said a blasting permit.  He said Barr was correct that the filing for the blasting permit wasn’t the first step of the process, but it was probably the only conclusive step that there was in fact going to be blasting.  He said that gave them as developers or contractors essentially 4 months and might move some developers along faster and certainly encourage the contractors to get their request promptly filed.

Commissioner Rundle said since the application required that a person should identify where there was a pre-blast survey it seemed like Barr’s original suggestion that was when to notify them that you wanted the GIS map.  He said under the City’s existing regulations, he asked if all that information could be gathered in a month.

Glass said it depended on when someone signed a contract with a general contractor, but that would give him some inducement to move expeditiously.      

Commissioner Hack said in an effort to move things forward, she asked if it was a good idea to state whether the City Commission would support the ordinance as presented and then hand to staff the issue of timing projects.

Mayor Highberger asked if they had the votes to adopt this without a guarantee of a delayed starting time.  He said if the Commission did what Commissioner Hack had suggested and if the ordinance needed some fine tuning, he asked if that could be done on second reading. 

Corliss suggested to the City Commission that they might want to indicate that the ordinance would be effective January 1, 2006, and if there were projects that had applied or given a written indication to the Fire Marshall that they were going to apply for a building permit by requesting a map before that time they would be considered to be in process and if there were circumstances that they could not see, in the next four months, then they could come to the City Commission and ask to be considered within the pipeline.  He said he did not think there were that many projects that were going to be impacted.  It was important that the City Commission come up with an effective date.

Commissioner Rundle said it was important that they had something that was an official letter that requested something like GIS.    

Dan Wilkus, Fire Code Board of Appeals member, said the existing rules did not allow for the use of the GIS map anyway.  He said it would compound a problem for Barr because if they wanted to follow the existing rules until January 1, 2006, but existing rules required that this extensive site drawing to be produced.  He said it was a dilemma because if a person applied for a GIS drawing, but the existing regulation as it stood now, did not allow that.  That was why it would be advantageous to adopt the new rules to allow the use of the GIS which would make the process simpler.   

Commissioner Schauner said he thought he knew how he was going to vote until the previous speaker spoke.  He said he was concerned that there was an interest in protecting projects that had begun, but if they were going to create a situation where they would say that they would be protected and then not give them a tool to protect themselves with, he asked what would they have created. 

He preferred to put this issue off for a week to allow staff to recommend how they would find a transition method for the next four months.

Wildgen suggested to the City Commission to adopt the ordinance on first reading and next week staff could have a plan at that time to adopt on second reading.  

Moved by Highberger, seconded by Amyx, to receive from the Uniform Fire Code Board of Appeals a proposed Ordinance 7925 regulating blasting and adopted the ordinance on first reading with an effective date of January 1, 2006.  Motion carried unanimously. (17)

Commissioner Rundle said one of the big complaints was the requirement of an extensive drawing because that was a time consuming process.  He asked staff for some feedback on that issue next week. 

Receive letter from General Counsel, Kansas Department of Transportation concerning proposed zoning and subdivision text amendments on the subject of governmental takings and land use setback requirements. 

Sally Howard, KDOT General Counsel, said what they were asking the City Commission to consider was potentially amending the City’s variance ordinance, Chapter 21-1202.  The reason they were requesting that the City Commission consider that amendment related to some of the landowners that had been affected by the improvements on 6^th Street. 

She said there had been a strip taking on each side of 6^th Street and they understood at that time that there might be a potential for consequential damages to the landowner because their remainder of property would not comply with the City’s setback requirements.  She said neither  the City nor KDOT had any desire to create this type of damage.  She said if the type of use that the developer had in mind was consistent with the City’s long-term plan there was never any intent on the part of the City or KDOT to impact that use.

She said KDOT, in consultation with the City, changed the way that it typically described the permanent easement that it is acquiring.  Instead of describing it as right-of-way, they described it as a permanent easement for public use and utilities.  She said their thought was because setback requirements were measured from the edge of right-of-way and they did not acquire any new right-of-way that there should not be any impacts to setback requirements because the point should remain from which you measure that setback. 

She said they had thought they had had resolved the problem and unfortunately, Judge Malone disagreed with the action they took.  In essence, the Judge said he did not care what they called it, but what was taken was right-of-way.  She said that meant because they had taken the easement, based on the Judge’s ruling, the property, Westgate and Northland would now have setback requirements.  She said again, they did not intend to cause any consequential damages so they decided to proceed and obtain a variance and that was the point when the landowner said that there was a provision in the City’s current ordinance for variance that the landowner believed would require them to demonstrate an absolute depravation of use and that likely could not be satisfied.  She said that was the part of the variance issue that they would suggest the City consider changing and in essence to say that a governmental taking automatically satisfied that requirement because there would still be the other requirements for whether or not to grant a variance that being was it still a harmonious use with the land uses around it and every other planning part of that variance would still be considered.  She said the landowner when faced with a governmental taking would not need to demonstrate the complete depravation of use.

Moved by Schauner, seconded by Rundle, to extend the meeting time to 10:30.  Motion carried unanimously. 

Commissioner Rundle said if the language was changed governing right-of-way and easements, would the Judge still think that it would not matter how it was defined in the ordinance, it was still right-of-way.    

Howard said she thought the Judge was focused on what KDOT could do with a permanent easement that it took. She said she believed that the Judge felt that regardless of what they called it, they could potentially do anything they wanted with that permanent easement, including placing roadway on that permanent easement.  She said if they could in fact place roadway on that permanent easement, she asked how it could be distinguished what they were calling a permanent easement for public use and utilities from what had been traditionally known as right-of-way.

Commissioner Rundle asked if this opened them up if they said “a taking” constituted hardship. 

Howard said yes.

Commissioner Rundle asked if it was easy enough to say indeed there was “a taking” and “no” that was not a taking in another case so there was no confusion on the hardship issue.

Howard said that could be clarified to say whether it was a condemnation action filed.  She said she would not suggest making it that limited.  She said you would not want to limit it to simply to formal condemnation, but under threat of condemnation.

Mayor Highberger called for public comment.

After receiving no public comment, David Corliss, Assistant City Manager/Legal Services Director said the next step would be for the Planning Commission to consider the text amendment, then the Planning Commission would conduct the public hearing on the text amendment and then it would come back to the City Commission.  He said as a matter of calendaring it, they put it on the September Planning Commission Agenda already. 

He said this issue got into one of the major issues in the City’s Development Code concerning non-conforming uses and how they wanted to treat those and clarify that item for the good of not only the City, but just as important, property owners.   

Commissioner Schauner said the one concern he would express was that they did not want to fix this problem and cause some unknowable or unintended future consequence that would be equally difficult to deal with and he was confident that Corliss and other counsel would guide the City Commission in the proper direction.

Howard said she wanted to make sure the City Commission understood that there was a sense of urgency.  She said the last trial was scheduled for October 14^th.  However, they would move for a continuance of that trial date to allow the parties to try and reach an agreement.  She said their end goal was not to cause this type of harm to the landowner and that was how they proceeded the entire way.  She said it seemed it would make the most sense to allow whatever amendments to the ordinances that was necessary and to allow the variance process to take place before the trial.  If a variance could not be granted, then they would go to the trial knowing that those were the damages that should be awarded.

Commissioner Rundle asked if it would be useful for the City Commission, subject to staff’s support, to draft a resolution stating that they were going to do this because this did have a timeline that went beyond.

Corliss said it was a good idea, if it was the consensus of the City Commission that this issue was worthy of expedition as far as the processing and considering of it, not necessarily the deciding of it.  He said if it was the Commission’s desire that there was an expedited review of this matter then that would be appropriate for the minutes to reflect that idea and that would convey the sense of urgency. 

The idea that those takings were to drastically affect the economic viability of this property was counter to what he had interpreted as the City‘s position.  One of the reasons for spending $13,000,000 on this road was to be able to provide safe and convenient access to this property and all of the other properties up and down the street.  He said they were not trying to harm the property, but enhance its economic viability and the safety of the traveling public.           

Mayor Highberger pointed out that this was an extraordinary setback requirement and it was the only place in the City where there was a 50 foot setback requirement along 6^th Street.  He said he was not convinced that it was in the City’s best interest to have a setback requirement like that and would it be appropriate to consider changing that at the same time with this or should that be a separate process.    

Corliss said he would ask that they not consider it at this time because that was a larger issue and likely to involve a number of other considerations.  He said when looking at the property on the north side of the street, he thought they had that very discussion, did they really want to have a 50 foot setback along this corridor.  He said that was a good question considering all the issues about new urbanism and density, but he did not think that could be focused on.  He said this was more, what was the appropriate standard for considering a variance in the case of a governmental taking and that was the narrower issue.       

Commissioner Hack asked if Corliss would recommend that the City Commission work toward a resolution immediately or just have the minutes reflect the City Commission’s intent to pass this issue on to the Planning Commission.

Corliss said their request was for the City Commission to ask the Planning Commission to have an expedited review of the issue of the 50 foot setback issue and any other appropriate setbacks regarding governmental takings and that the Planning Commission explore it appropriately and provide a recommendation to the City Commission so they could decide how to proceed with this matter.  The issue of the 50 foot setback that was established in the late 80’s early 90‘s from Monterey Way all the way out to County Road 13 which was now the SLT, was an issue of future discussion that they should not ignore, but he would hate to see those tied together because he did not think they would get the expedited review that was being sought.

Moved by Rundle, seconded by Schauner, to authorize the initiation of consideration of necessary text amendment in an expedited manner.  Motion carried unanimously.  (18)

Moved by Amyx, seconded by Hack, to extend the meeting to 10:40.  Motion carried unanimously.

PUBLIC COMMENT:

Ed Tato, Lawrence, said he was present with a real estate client who was a HOOT (Home Owners Out of Tenants) Program participant.  He said he felt they were trapped in the bureaucracy.  He said the object of the program was to put the low income person in the house, but the conditions that had to be met in the program for his client were almost preventing that from happening. 

Jeroldine Ironwhiteman said she was getting discouraged about being part of the HOOT Program because instead of them helping her find a home, which she was eligible for, she felt they were preventing her from buying a home and making it hard for her to purchase a home because of the guidelines.  

Wildgen said staff would address the issue and get back with her.

COMMISSION ITEMS:

Vice Mayor Amyx said he spoke with the City Manager about a plan for conserving fuel in light of the price of gasoline.   He suggested that there be discussions about the purchase of SUV’s of any size because he did not think that was wise because of the size. 

Moved by Hack, seconded by Schauner, to extend the meeting to 10:45.  Motion carried unanimously. 

 Commissioner Hack said she would like to make a request to place on a future agenda the question of whether or not to reopen the RFP process for the Carnegie Building.     .

Moved by Schauner, seconded by Amyx, to adjourn at 10:45p.m. Motion carried unanimously.                                                                                                                                          

APPROVED:

_____________________________

Dennis Highberger, Mayor

ATTEST:

___________________________________                                                                       

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF SEPTEMBER 6, 2005

1. Bids – Siemens Hipath telephone system, to Kansas Communications for $30,819.

2. Agreement – ETC Institute, assist City staff with 2005 Employee Satisfaction Survey not to exceed $21,300.

3. Bid – Scrap Surplus to highest bidders.

4. Ordinance 7822 – 2^nd  Read, rezone (Z-06-25-04) 1.3363 acres, from A to O-1, SW corner of W 6^th & Folks.

5. Ordinance No. 7906 – 2^nd Read, STO, 2004 Edition, Section 17.103.1 & 17-107.2.

6. Ordinance No. 7901 – 2^nd Read, landscaping & maintenance fee requirements regarding traffic circles

7. Final Plat – (PF-07-25-05) Fox Chase S No. 3, 42.532 acres, N of Longleaf, S of Fox Chase S, W of Fox Chase E Addition.

8. TUPR – (TUPR-08-26-05) McDonald’s, 901 W 23^rd, Sept 15 – Sept 25 & Dec 22 – Jan 1.

9. TUPR – (TUPR-08-26-05) McDonald’s, 901 W 23^rd, Sept 15 – Sept 25 & Dec 22 – Jan 1.

10. Transportation Enhancement Project – KDOT

11. Mortgage Release – 524 N 7^th, Loman Lathrom.

12. Plat public improvement condition – issue bldg permits for Monterey No. 8 Sub, after waterline & Monterey Way improvements. 

13. Final Plat – (PF-05-20-05) Sherylville Estate, 5.71 acres, located between 1600 & 1800 Riverridge.

14. Kansas Drug Policy Forum of Kansas.

15. Library Expansion Project Prime Consultant.

16. Engineering Agreement –  Black & Veatch for siting study, water reclamation facility. 

17. Ordinance No. 7925 – 1^st Read, Blasting Regs.

18. Zoning & Subdivision text amendments – Governmental takings and land use setback requirements.