September 13, 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:

Mayor Highberger recognized retiring Department Directors, Roger Coffey, Utilities Director and Jim McSwain, Fire Chief, for their years of service to the City of Lawrence.

Mayor Highberger introduced Mr. Shigeru Katsuyama, guest from Sister City Hiratsuka, Japan.

With Commission approval Mayor Highberger proclaimed Friday, September 11 – 17, as “POW/MIA Recognition Week” and Friday, September 16, as “POW/MIA Recognition Day.”

CONSENT AGENDA

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to receive the Sign Code Board of Appeals meeting minutes of August 4, 2005; the Board of Zoning Appeals meeting minutes of August 4, 2005; the Sesquicentennial Commission meeting minutes of August 17, 2005; and the Hughes Carnegie Center meeting minutes of August 15, 2005 and August 29, 2005.  Motion carried unanimously.

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to approve claims to 263 vendors in the amount of $1,703,274.48.  Motion carried unanimously.   
As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to approve the Drinking Establishment Licenses for The Hawk, 1340 Ohio, and Biggs Bar & Grill, 2429 Iowa.  Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to approve the agreement with BG Consultants for design of Phase II of downtown (700 and 800 block of Massachusetts; 9th Street, Kentucky to Vermont) waterline improvements in the amount of $115,936.21.  Motion carried unanimously.                                                                             (1)

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to authorize the City Manager to execute an architectural services agreement with GLPM Architects, Inc., in the amount of $69,900 for Phase II renovation work for the Carnegie Library building at 9^th and Vermont.  Motion carried unanimously.                                                               (2)

Ordinance No. 7925, regulating blasting, was read a second time.  As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to adopt the ordinance.  Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                                                                                          (3)

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-07-44-05), a tract of land approximately .99 acre from M-1 (Research Industrial District) to RO-2 (Residence-Office District) (the property is generally described as being located between East 19^th and Homewood Streets, east of Bullene Avenue, and commonly known as 927, 931, and 935 Homewood Street, and 934 and 938 East 19^th Street) and, direct staff to prepare the appropriate ordinance. Motion carried unanimously.      (4)

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to approve the text amendment to TA-07-02-05: to Chapter 21 of the City/County Subdivision Regulations regarding concurrent submissions of preliminary and final plats.  Motion carried unanimously.                                                                                                                                    (5)

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to approve a Temporary Use Permitted Upon Review (TUPR-08-27-05) for Bella Sera at the Preserve, 4600 Bob Billings Parkway for a tented display to promote proposed development on September 23-24 and October 1-2, 2005 from 12:00 p.m. to 5:00 p.m.  Motion carried unanimously.                                                                                                                                          (6)

As part of the consent agenda, it was moved by Schauner, seconded by Rundle, to approve as “signs of community interest” temporary trailblazer signs for the September 24-25 and October 1-2 2005 Home Builder’s Association Fall Showcase of Homes.  Motion carried unanimously.                                                                              (7)

CITY MANAGER’S REPORT:

During the City Manager’s Report, Mike Wildgen said David Osborne, Utility Department Project Inspector for the 600 Block water line project followed up with the business in the area and received good feedback from those businesses.                                                          (8)

Vice Mayor Amyx said one of the comments missing from the comments from businesses was the work that went into getting that area cleaned up before the sidewalk sale.   He said the merchants appreciated the hard work.

REGULAR AGENDA

Receive final report from Sesquicentennial Commission.

Fred DeVictor, Parks and Recreation Director, presented the final report from the Sesquicentennial Commission.  He introduced members of the Sesquicentennial Commission.  He said Clenece Hills, Sesquicentennial Commission Chair, and her committee worked tirelessly to make sure this event was a milestone in the community.  He said they had begun planning development work for Phase 1 at Sesquicentennial Point based on the amount of money that had been raised.   

Bruce Roberts, Sesquicentennial Commission Secretary, said as of 5 p.m. today the Sesquicentennial Commission had raised $202,685 which was enough money to begin the project.  He said there was a growing awareness and interest in helping to support this effort as a gift to Lawrence.   He said people who were interested in sponsoring this project could send contributions to Parks and Recreation Department.    

Clenece Hills, Sesquicentennial Commission Chair, said several months ago she came to the City Commission to consider appointing a group of people to have an annual event to celebrate Lawrence’s birthday so that when we get to the year 2054, this event would be an expectation and people would be used to thinking of the 3^rd Sunday in September as Lawrence Day.

She said the City had applied to be a host city for a presidential debate, an idea that she had not dropped.  She said Chief McSwain was phenomenal about offering all of his services and validating all of their claims when they made that application.   

She thanked other members of the Sesquicentennial Commission.

She said they would give the City Commission some official papers as soon as their audit was completed and they fully intended to comply with all the regulations of the City.  She urged the City Commission to make the 3^rd September an annual event to celebrate Lawrence’s birthday.        

                The Commission recessed for 5 minutes.                                                                                                           (9)

Receive bids for general obligation bonds and temporary notes.  Approve lowest responsible bidder.  Declare an emergency allowing for adoption on first and second reading.

Ed Mullins, Finance Director, said First Albany Capital Inc., submitted the lowest net interest costs on the temporary notes and Stern Brothers had the lowest interest costs on the bonds.  He said staff was asking the City Commission for approval of the low bids and to declare an emergency and adopt on first and second reading, Ordinance No. 7926 in order to get the bonds sold.  

Commissioner Schauner asked how those numbers on interest rates compared to the previous interest rates.

Mullins said those rates were up a bit.  He said there were nine bids on the bonds and he could not remember the last time the City received that many bids on a bond sale.   The last time a bond sale was authorized a year ago those net interest costs were approximately 3.20% to 3.30%.

The City Commission reviewed the bids for General Obligation Bonds, Series 2005-A, for $11,095,000.  The bids were:

BIDDER                                              Average Annual

                                                                                                True Interest Cost (%)

            Stern Brothers & Co.                                                  3.545427%

            George K. Baum & Co.                                               3.567157%

            Harris N.A.                                                                   3.574475%

            LaSalle Financial Services Inc.                                   3.590494%

            Piper Jaffray & Co.                                                      3.607353%

            Legg Mason Wood Walker Inc.                                  3.609163%

            Wells Fargo Brokerage                                               3.640478%                 

            Commerce Capital Markets                                        3.655235%

            Citigroup Global Markets, Inc.                         3.706967%

Moved by Rundle, seconded by Hack, to award the bid to Stern Brothers & Co., for the Average Annual True Interest Cost of 3.545427%.  Motion carried unanimously.            (10)

The City Commission reviewed the bids for General Obligation Temporary Notes, Series 2005-I, for $22,128,000.  The bids were:

BIDDER                                              Average Annual

                                                                                                Net Interest Cost (%)

First Albany Capital Inc.                                              2.946851%

            Banc of America Securities LLC                                2.988011%

            Piper Jaffray                                                                2.991602%

            Parker Hunter Inc.                                                       3.0473%

Moved by Rundle, seconded by Hack, to award the bid to First Albany Capital Inc., for the Average Annual Net Interest Cost of 2.946851%.  Motion carried unanimously.              (11)

Moved by Rundle, seconded by Hack, to declare an emergency and adopt on first and second reading Ordinance No. 7926 authorizing the sale of General Obligation Bonds, Series 2005-A .    Aye:  Amyx, Hack, Highberger, Rundle, and Schauner.  Nay: None.  Motion carried unanimously.                                                                                                                                     (12)

Moved by Rundle, seconded by Hack, to adopt Resolution No. 6610, authorizing the sale of General Obligation Bonds, Series 2005-A, in the amount of $11,105,000.  Motion carried unanimously.                                                                                                                                  (13)

Moved by Rundle, seconded by Hack, to adopt Resolution No. 6611, authorizing the sale of General Obligation Bonds/Temporary Notes, Series 2005-I, in the amount of $24,125,000.  Motion carried unanimously.                                                                                    (14)

Conduct de novo hearing for PP-06-12-05:  Preliminary Plat for Mary’s Lake Addition. The property is generally described as being located north of 31^st Street and east of Haskell Avenue.  This proposed residential subdivision and city parkland contains approximately 15.98 acres.

Mayor Highberger called a de novo public hearing for the Preliminary Plat (PP-06-12-05) for Mary’s Lake Addition.

Lisa Pool, Planner, said the proposal was for 39 single homes which would sit on 8.253 acres.  She said 5.862 acres would be conveyed to City for future park land from Mary’s Lake Properties.  She said lot 38 and 39 were to be conveyed to Mary’s Lake Properties from the City. 

She said 2 variance requests were associated with the plat, one variance pertained to the lot depth of lot 1 which did not meet the minimum lot depth requirement of 100 feet and the other variance pertained to the cul-de-sac that exceeded the 1,000 foot length by 184 feet. 

Staff had recommended denial of the lot depth variance and approval of the cul-de-sac variance.   Also, staff was recommending approval of the plat subject to the conditions as listed in the staff report.  

Commissioner Schauner said one of the conditions was to ensure there was sufficient sanitary sewer pumping capacity.  He said he understood that a new pump would be installed fairly soon.

Mike Wildgen, City Manager, said the work had not been started yet, but it would need to be done before any connections were made.

Commissioner Schauner asked if the physical site of the pump was sufficient to handle the additional capacity required by the 39 new homes.   

Debbie Van Saun, Assistant City Manager, said the pump station was currently at 50% capacity and it had nothing to do with this development or any future development.  She said that was one of the concerns was that it was not working at capacity now.  The idea was to try and install this new pump to see if that would remedy the situation and provide the level of capacity that the station was designed for.

Commissioner Schauner said the 39 new units would not cause the pump station to be beyond its design capacity.

Van Saun said that was her understanding.

Mayor Highberger asked how the Planning Commission acted on those issues.

Pool said the Planning Commission denied the cul-de-sac variance 4-5, approved the lot depth variance 9-0 and denied the plat 5-4.

Tim Herndon, LandPlan Engineering, said he would like to clarify that the Planning Commission acted to recommend approval of the rezoning.  He said the reason why they were at this meeting was to request that the City Commission approve the preliminary plat that was denied by the Planning Commission 5-4 and approve the variance request that was denied by the Planning Commission. 

Herndon then discussed the evolution of the project.  He said relative to what was platted the subject ground that was being proposed was lot 4 of King Industrial Subdivision.  He said currently that area was zoned light intensity industrial.   

He said Mary’s Lake existed adjacent to the property and within the boundaries of the property was the existing portion of the nature trail that served the Prairie Park Nature Center.  Also a good portion of that area, although platted and zoned industrial, was heavily vegetated.

He said over the past 2 years it was in late 2003 that the applicant approached his firm requesting that they begin to plan for the development of that property.  He said they went through a series of potential design configurations and some of the physical attributes that were of a concern was the fact that in order to connect with 31^st Street, it had to be a collector street because 31^st Street was a proposed arterial.  He said they could not connect an arterial with a local street without a variance.  He said as they went through that concept evolution while they dealt with the need for a collector standard street connecting to 31^st Street, they still had the issue of residential lots that would take access to that collector street, also not allowed by subdivision regulations, because they could not have driveway access on collector streets. 

As they continued to work through that concept and weigh their options in terms of which variance to ask for and what must be addressed versus what might be overlooked or compromised, they came up with an ultimate solution that they thought best met all the criteria.  He said they took a collector street access on to 31^st and connect to Harper and 28^th Terrace and when they entered the subdivision from either end, there would effectively be traffic calming by having a t-intersection in both places, stopping traffic or slowing that traffic down.  The issues that were obvious were addressed by this plan. 

As they increased their resolution and moved on to the next step of design development, they turned this into a computer drawing.  He said they did have a dialogue with the City throughout the course of the project thus far.  One of the things the City had strongly expressed was their desire for a portion of this ground to be reserved for park land so that a margin around Mary’s Lake could be better preserved and as much of the existing trail that existed off of the City’s site and on to private property could be preserved as possible.  This option also dealt with the intersection to 31^st Street by having a collector standard street, no residential lots or taking direct access to the collector.  He said it started to work well, but they still had a portion of the existing trail that would need to be relocated.  He said they still had a portion of the subdivision that would abut the existing park land. 

He said as they continued to work with the City and Parks and Recreation Department, he was urged to consider yet another option that would preserve even more of the park land, 6 acres to be conveyed to the City, preserving all of the existing trail, creating an approximate 1.6 acres of an out lot that would be zoned residential office that would represent a buffer between the single family residential and 31^st Street to be constructed in the future.  He said with this layout, their cul-de-sac was the conventional length and they did not have any variances to request, the interest of the City was protected and there was even a little bit of small berry jam smeared on the top by the fact that they could provide a little buffer area between residences and 31^st in the future.

He said when it came time to produce and submit a preliminary plat that was exactly what they did.  Again, the RO-1A lot to the south, the 6 acres of park land to the east, the trail was entirely preserved, as part of this an existing tract of land owned by the City would be conveyed to Mary’s Lake partners for development in lots that did not directly front the proposed cul-de-sac and they were off and running.

He said when they received the departmental review comments from the City, City staff pretty much spoke with a unified voice and what had not came to light in the previous approximate year and a half of design development was the City’s position that 31^st Street shall have no direct access onto it.  In response, they revised their plan.  He said he wrote to City staff indicating that if those were the rules, they would play by those rules, but City staff needed to understand that there was a cul-de-sac that was going to exceed what the subdivision regulations stipulated which was 184 feet and they would appreciate staff’s support.

He said they believed that this plan was a plan that balances all of the issues and in his experience as a planner, engineering consultant, development consultant, and a designer whether it was Centennial Park or something a little bit more pedestrian like this, they realized that not every little aspect of a project could be perfect. 

He said with all things considered they ended up with a cul-de-sac that was 1,184 feet in length when the subdivision regulations stipulated a maximum of 1,000 feet.  He said this came to the Planning Commission with Planning Staff’s recommendation for approval and they believed that they had met all the criteria for the granting of variances.  He wanted to do his best to avoid speaking for anyone that was not present to speak for themselves, but as best as he could interpret from the Planning Commission proceedings, there was an overriding prejudice against the granting of variances and that the vote was 5-4 that they should not grant something to this project that they did not grant to every project.  He said this was not every project, but this project. 

Again, responding to the access issues and the preservation of 6 acres of greenspace to incorporate into the park, the preservation of the trail, the creation of a long series of entry level homes that were going to have park land frontage.  He asked how many medium or modest priced home sites had that benefit.  The home sites that were adjacent to the existing low intensity industrially zoned property were extra deep, feature a 20 foot wide landscape easement, and they had immediate access to the Prairie Park Nature Center to parking lot into the nature center and to the trail. 

Finally, he said they were also asked by staff to provide a pedestrian connection from the tip of that cul-de-sac bulb out to what would be the future 31^st Street.  He said there were pro’s and con’s to having that 24 hour, 7 day a week, open invitation for people to walk between neighborhood homes from a future arterial street into a vast neighborhood.    

Fred DeVictor, Director of Parks and Recreation, said he wrote a letter to the Planning Commission about this Preliminary Plat.  He said it has been about 20 years since the City began acquiring land for a park.  He said there were about 4 or 5 different parcels of land that they combined to make a very unique park and Mary’s Lake was one of those.  He said there was currently approximately 71 acres of land at that location.  He said there was a unique natural environment in an urban setting which lent itself nicely to the program that they offered in this community. 

He said that buffer zone between what formerly was the Honeywell property and Mary’s Lake, staff was concerned about the run-off and preserving that wooded area.  He said as they negotiated, a previous City Commission did authorize staff to move ahead and acquire the 6 acres in that area.  The letter that he had written addressed the issue that staff did not recommend any type of a trail easement through that buffer zone.                 

Mayor Highberger said he understood the Parks Department intention would be to fence off the parkland from the homes adjacent to the parkland.

DeVictor said preserving the buffer between the potential residential and the lake was very important and staff felt it was important to construct a fence so there would not be any access through that area. 

Commissioner Rundle asked if any school children that lived within that development would use that pedestrian access to get to the school that was to the east.

DeVictor said there was a trail that went across the dam and up through that area to the school.  He said he did not know if the use of that pedestrian access would be any closer.  He said because that area was a natural setting and staff did not anticipate any lighting along the trail, he suggested that it would be safer to use the other route, but they could use that trail.    

Commissioner Hack asked what was the Parks & Recreation Advisory Board’s position on the park land and trail.  

DeVictor said the Parks & Recreation Advisory Board did support the acquisition of that 6 acres.

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

Commissioner Rundle said when he reviewed the subdivision regulations on this de novo hearing requirement, he did not see any requirement to make specific findings such as was required for the Board of Zoning Appeals.

David Corliss, Assistant City Manager/Legal Services Director, said correct.  He said in Section 21-801, Subdivision Regulations that provided that: 

“The subdivide of a proposed subdivision may appeal to the governing body decisions made in the enforcement or interpretation of these regulations by the planning department, planning commission or the appropriate engineer.  Any such appeal shall provide a hearing de novo.  In the event the governing body sustains such decisions, the prior enforcement or interpretation shall be final, except as otherwise provided by law.  If the governing body overrules the planning commission, the governing body shall state its decisions, and the reasons therefore, in writing, and submit the decision and plat to the planning commission, seeking concurrence.” 

He said there needed to be reason and rationale and not so much findings.  He said they could point to the minutes or be more articulate if they decided to do so.

Mayor Highberger said there were things about this design he did not like, actually he liked one of the earlier designs, but he realized given the current rules, it was not possible.  He said they needed to take a look at some of those rules and make sure those rules were doing what they wanted them to.  He said he did not like 1,184 foot cul-de-sacs and in fact, he did not even like 500 foot cul-de-sacs, but our rules did allow cul-de-sacs of up to 1,000 feet at this time. 

He said he liked the acquisition of park lands and he thought they should reserve the easement for the pedestrian access to 31^st Street although, he concurred with staff that they might not want to install it immediately.     

He said he would reluctantly vote to overrule the Planning Commission recommendation and accept the preliminary plat.

Vice Mayor Amyx said none of us like 1,184 square foot cul-de-sacs, but the development of this property would take care of a few issue.  First, it cleaned up the remainder of the M-1A zoning that was adjacent to the former Honeywell Plant; it provided for a 20 foot buffer on the west side of the property for a landscape area to protect the west side of the property; and it provided the nature trail. 

He said he had some concern placing public access through those lots off of the cul-de-sac because of the potential for people cutting through yards 24-7. 

One of the main concerns was the 50 foot radius that was required in the cul-de-sac for the fire department and emergency services.  He said this was a very difficult site and they had not even discussed the question of affordable housing.   He said he supported this version of the preliminary plat.              

Commissioner Hack said the trail, entry level housing, and preserving park land were all positive attributes of that area.  She said she knew granting variances was difficult because if variances were granted all the time then what would be the point in having the requirements in the first place.  However, what made this site so unique was that it was an in-fill development and each site had its own individual characteristics.  While applying regulations universally might work an enormous percentage of the time, in this case it did not.  She supported overturning the Planning Commission’s denial of this variance.         

Commissioner Rundle said he shared some of the reluctance of the Mayor, but he was going to mention the in-fill aspect of this area.  He said in the original proposal where there was a regulation size cul-de-sac in an RO zoned area, he asked if there was any chance of getting access to the west. 

Herndon said no.

Commissioner Rundle said he also joined the Mayor in wanting to preserve that pedestrian access because it was a good idea to wait until 31^st Street was constructed, but connectivity was an issue.    

Commissioner Schauner said he did not know the affordability of what those homes would be.  He also said this property was unique in that it was long and narrow and had access issues.  He said one of the issues that he did not hear much conversation about was the impact on the access neighborhood along 28^th Street and what the impact would be with the residents of 39 houses going in an out of that area would have on that street. 

The sidewalk access between those two properties, if they were going to do that then he thought they should do it before the houses were built so that owners of those two houses know exactly what they were going to get because if they did not, they would be attending a Commission meeting stating that they did not want that between their yards.

He said if this was a perfect world, he would rather the City own all that property so the City could make that entire area an extension of the Mary’s Lake Nature Preserve.  He said it was the best result and the fact that Herndon had to go through 6-10 ideations of what that area might look like spoke volumes to the difficulty of doing anything commercially successful with that property. 

He said with Herndon’s experience on the Board of Zoning Appeals, he knew from time to time Herndon voted against granting variance.

Lastly, he was reluctant, with the little bit of information and evidence the City Commission had, to overturn the Planning Commission’s recommendation.  He said he thought the Planning Commission’s recommendation deserved more deference than just a 15 minute discussion.  Recognizing the balance of interests he was confident that the Planning Commission took into account, and that the City Commission was being asked to take into account, he was going to support the Planning Commission.  He said it was not going to make any difference in the outcome it was more a vote of principle than it was a vote that would make a difference.  The message he would like to send to the Planning Commission was that he appreciated their willingness to take a stand on a hard question and do what they thought was the right thing to do.  He said he would very much like to see the pathway either taken out all together or be required to be installed early in the process so that prospective homeowners would know what they were buying when they buy it.

Wildgen suggested that the Commission encourage the developers to use porches.  He said they tried to encourage that in other in-fill situations especially with the length of this cul-de-sac. 

Commissioner Rundle said he hoped various groups could work with those neighbors to try and mitigate the impact on the natural area trying to use as little chemicals and pesticides as possible in the care of their backyards. 

He said the Planning Commission was under a more rigorous standard in granting a variance.  They did need to meet all three of the criteria listed in the ordinance.  He said it was appropriate that the Planning Commission tossed this issue to the City Commission because there were political reasons to be more flexible. 

He said he was also persuaded to go along with the suggestion of a pedestrian access so that people were aware of the situation up front.  He said they had difficulty in getting new pedestrian access in various places.  

Commissioner Hack asked DeVictor if it was the Parks & Recreation Advisory Board that suggested that the connection to the south not be placed until after 31^st Street was completed. 

  DeVictor said it was because more people would park along a section of the street and use this area to access the lake for fishing and other needs.

Commissioner Schauner said DeVictor’s concern was not the timing, but the fact that there was an easement.

DeVictor said when 31^st Street is constructed that would be good access to that street.  He said they could also extend a fence in that area.

Commissioner Schauner said perhaps it would be possible to fence that off in a way that would let people know there was an easement at that location, but might not be fully accessible until 31^st Street was extended.  He said to the extent they could let people know in advance what they were buying he thought it was helpful and more upfront with those prospective buyers.

Mayor Highberger said in the hearing they did not address the issue of the minimum lot depth on lot one.  He said he recommended approving that variance also. 

Corliss said he thought the City Commission was indicating that this area was good infill development; appropriate for the City to acquire the park property; residential use was appropriate; and the concerns about the cul-de-sac length. 

He said Commissioner Rundle pointed out that the Planning Commission needed to meet certain variance requirements and by the City Commission conducting a de novo hearing, essentially the City Commission did not need to do that.  He said each different body has their different roles.  The access point was important but all of those issues were being articulated in the minutes.  He said they could come back with a more concise statement and have the City Commission approve that statement.

Commissioner Rundle asked if any of the findings of fact would be made invalid by the action of approving this preliminary plat.

Corliss said no.  He said the finding of fact apply more to the zoning.

Commissioner Highberger asked about the front porch issue in the past.

Wildgen said the Villo Woods project had more specific design and the 15^th and Haskell project was the same way.  He said all they could do was to show that those projects were very successful in those locations.

Commissioner Rundle said Villo Woods development provided some façade illustrations that they could perhaps share with the applicants.   

Bill Fleming, attorney for the applicant, asked if there were two items for approval which was the variance and the plat.

Corliss said he thought there was one item.  The City Commission would be approving the Preliminary Plat as it was submitted and proceeding with all of those requirements and they were not needed to grant a variance.

Commissioner Rundle asked if that included the pedestrian easements.

Corliss said what was before the City Commission was the preliminary plat as the applicant had submitted it.  He said the City Commission could approve, deny, or approve that plat with conditions.                                               

Commissioner Rundle said this would go back to the Planning Commission if approved by the City Commission for their concurrence.  He said if the Planning Commission did not concur, he asked if there was anything special they needed to do.

Corliss said the decision of the appropriate governing body shall be final.  

Wildgen said the only condition he heard was that the Commission wanted the easement constructed before those end cul-de-sac houses were constructed.

 Commissioner Rundle said the way he read this was if they sustained the decision, the recommendation stood, but if they overruled the Planning Commission they shall state their decision, and submit the decision to the Planning Commission.   He asked if it was the final plat that they would concur with.

Linda Finger, Planning Director, said it was a courtesy issue in submitting it back to the Planning Commission, but it was for their acknowledgement of the action the City Commission had taken.    

Moved by Amyx, seconded by Hack, to approve the preliminary plat (PP-06-12-05) for Mary's Lake Addition (the property is generally described as being located north of 31st Street and east of Haskell Avenue) and accepted the preliminary plat as submitted with staff’s recommended conditions and with the additional condition that the pedestrian access be constructed before the homes at the end of the cul-de-sac are constructed, subject to the following conditions:

1. Submittal of written documentation from the Utilities Department, stating the provision of adequate sanitary sewer service.

2. The revision of the plat to include the following:

a. The addition of a 20-foot landscape easement along the subdivision’s western edge, directly east of the 15-foot utility easement and west of the rear yard setback lines.

b. The addition of a note, stating additional trees will be planted within the landscape easement if existing trees are not available to serve as a buffer.

c. The addition of minimum elevations for building openings (MEBO’s) on all lots adjacent to drainage easements.

d. The addition of a sidewalk section, which extends around the eastern side of the cul-de-sac bulb, connecting the sidewalk along Harper Street (extended) to the sidewalk between Lots 17 and 18.

e. The revision of the site summary to accurately reflect the site’s gross area, right-of-way area, Tract A area, and net area.

Motion carried.  Commissioner Schauner voted No.                                                                  (14)

Consider adopting findings of fact, approving rezoning requests, and authorizing drafting of ordinances for placement on future agenda for Z-06-36-05: A request to rezone a tract of land approximately 8 acres from M-1A (Light Industrial) District to RS-2 (Single-Family Residential) District. The property is generally described as being located south of Harper Street and east of Haskell Avenue.

Consider adopting findings of fact, approving rezoning requests, and authorizing drafting of ordinances for placement on future agenda for Z-06-37-05:  A request to rezone a tract of land approximately 2.09 acres from M-1A (Light Industrial) District to RS-2 (Single-Family Residence) District. The property is generally described as being located north of 31^st Street and east of Haskell Avenue.

Lisa Pool, Planner, presented the staff report.  She said these were two rezoning requests from Light Industrial District to Single-Family Residential District, 10.09 acres, north of 31^st Street and south of Harper and east of Haskell.  The character of the area was residential and included light industrial uses and parkland.  The Prairie Park Nature Center was located to the northeast of the subject area.  The two areas were being considered separately because the south 2.09 acres was originally submitted for rezoning to the R1-A District.  As the property was not allowed access to 31^st Street through the 31^st Street Corridor Study, the applicant chose to rezone the entire area to residential.

She said staff was recommending approval of both of those rezonings subject to the conditions as listed in the staff report.

Mayor Highberger called for public comment.

Tim Herndon, LandPlan Engineering, asked a question about timing because the property owners were concerned about the discussion about these rezonings going back to the Planning Commission and other concerns.

Linda Finger, Planning Director, said this was the approval date.  As of today, they could submit based on the deadlines.  She said those rezonings would go back to the Planning Commission for receipt of that information and then the Planning Commission could concur, take no action or stand with what they originally believed, but the action of the City Commission was final.

Moved by Hack, seconded by Amyx, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-06-36-05) a tract of land approximately 8 acres from M-1A (Light Industrial District) to RS-2 (Single-Family Residential District) (the property is generally described as being located south of Harper Street and east of Haskell Avenue); and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                                             (15)

Moved by Hack, seconded by Amyx, to concur with the Planning Commission’s recommendations to adopt the findings of fact and approve the request for rezoning (Z-06-37-05) a tract of land approximately 2.09 acres from M-1A (Light Industrial District) to RS-2 (Single-Family Residential District) (the property is generally described as being located north of 31^st Street and east of Haskell Avenue); and, direct staff to prepare the appropriate ordinance.  Motion carried unanimously.                                                                                                           (16)

Consider approving, subject to conditions and use restrictions, PDP-07-06-05:  Revised Preliminary Development Plan for Mt. Blue Addition No. 3.  This proposed planned industrial development contains approximately 4.25 acres.  The property is generally described as being located south of K-10 Highway and east of Franklin Road. 

Sandra Day, Planner, presented the staff report.  She said this item was forwarded to the City Commission from the Planning Commission’s August agenda. This was for a revised preliminary development plan.  The property was currently zoned PID and was an industrial development property.  She said Thomas Court was the center street that served most of those lots as well as 25^th Street

The reason for the revised preliminary development plan was an intent to develop the two center lots on the north side of Thomas Court that also abutted 23^rd Street. 

Part of the requirements in the review of this particular application included acknowledgment of certain conditions that surrounded this property, future improvements to the intersection of Franklin Road and East 23^rd Street.   She said that resulted in a number of conditions to reflect those future improvements, the dedication of easement and the participation in certain benefit districts.   She said this issue had a lot of discussion from the applicant and staff during the meeting and the Planning Commission at their Monday meeting asked staff to work on conditions and come back because the Planning Commission was not able to come to a conclusion that they could support.

She said they met again and brought forward revised conditions and through some continued discussion at the Planning Commission, a fifth condition was added.  The minutes that were received in the packet actually were short one page and the correct minutes were given to the City Commission.  She said there were a number of different motions made and a number of different votes taken.  Ultimately this issue was recommended for approval by a vote of 8-2.  Those 2 dissenting votes were a reflection of the fifth added condition which was an agreement not to protest the formation of a benefit district.

She said when staff looked at preliminary development plans, the entire property within the district of that plan was included.  The focus of this property had been the center north 2 lots and staff would be looking at a revised final development plan. The City Commission would also be seeing in several weeks a revised final plat that combined those 2 lots into 1 single lot and addressed some existing utility easements that would need to be vacated through that process.

Part of the function of a development plan was to also review preliminary plat requirements and that was where staff took up some of the easement issues.                     

Commissioner Schauner asked Corliss if the agreements not-to-protest went with the property.

Corliss said yes.  He said those agreements were recorded with the Register of Deeds and those agreements should show up in future title commitments as an encumbrance on the property.  

Mayor Highberger called for public comment.

After receiving no public comment, Commissioner Rundle asked if staff had any concern about being able to get the proper changes to any streets that might be deemed necessary in the future.  

Corliss said he and Planning Staff had worked on this item and what they were trying to do was to respond to the important change that the City and Planning Commission had made that Franklin Road was going to be an arterial street and they needed to provide access points that reflected that.  He said they were also trying to be fair to the property owner that had already installed Thomas Court and had paid for Thomas Court.  He said what was done was that they had indicated that future development in the parcel that was primarily to the east side of the development would pay for that improvement of a road off of East 25^th Street and that seemed to be a good path to accomplishing all those goals and allowing them to proceed.  How Franklin Road was going to be done as an arterial street and how it would interface with 23^rd Street were significant future issues for this Commission and future Commissions, but staff was trying to plan appropriately.

He said regarding Commissioner Rundle’s question, he thought staff was forecasting that requirement appropriately and as development came in the Commission might need to have discussions with them, but at least it was forecasted that the change was made and they would need to access off of 25^th Street.

Vice Mayor Amyx said concerning the access coming from the south and the owner of Thomas Court paying for that piece of development, he asked if the City was going to make the owner pay for it again.                  

Corliss said the project they were currently discussing was for an agreement not-to-protest a benefit district to Franklin Road, but there was not a requirement that they participate in the future north/south street.

Day said that was the fifth condition that was added.  She said it did not require that improvement to be made at this time.  Certainly, as they continued to move through the development process for those other lots that would be the time that staff would look at that.   She said there had been discussion whether it should be a street or an access easement, but both would work in terms of providing access.  The easement would allow for more flexibility of the property owner and more use of the ground because of the way the setback was calculated rather than actual road right-of-way through that area.

The fifth condition was added by the Planning Commission which read:

“Execution of an agreement not-to-protest the formation of a benefit district for improvements to the connection of Thomas Court to 25^th Street.” 

She said it was specifically for Dean Penny for the two lots that he controlled and that had been the compromise because they had initially talked about Penny’s application being subject to all the property owners being committed to that particular agreement.   The compromise was to make that a condition of Penny specifically because they were looking at those two lots in the development proposal.  As they completed the process this condition would very likely be repeated as those other lots come in for their final development plan.

Commissioner Schauner said his question when back to their lengthy discussion about the Auto Exchange property at 33^rd and Iowa where they ended up with a piece of property that did not have cross access easements and they had issues about access to 33^rd Street. He said what he wanted to be clear about was that they had a process in place that would avoid having land locked lots to either Franklin Road or 25^th Street.

Day said that was what staff was doing.

Corliss said staff had that process, but staff would need to follow through when those additional lots came in for redevelopment and indicated that they would follow this plan to have this connection onto East 25^th Street.  One of the original proposals that was suggested was that for this particular development, it could not proceed unless there was right-of-way dedicated along that new north/south street.  He said through discussions it was determined that that might be a little bit burdensome on this particular development, but they were forecasting it for all the future development that that was going to be a requirement.  He said that would make sense because they were contiguous to that necessary dedication.

Commissioner Schauner asked how staff would be able to tag those future lots for conformance with the bigger picture plan.

Day said this was a building block type process.  The preliminary development plan was one of the most important tools in that process and that was why that plan came to the City Commission as well.  Each and every final development plan has a touch stone to come back to those preliminaries.  Each individual lot that staff would look at staff would go back and compare it to that preliminary, the necessary notes, design work, all of those requirements are the ones that staff would come back with.  If staff had missed something now, it was much more difficult to try and recapture it at that final stage.

Commissioner Rundle asked if the notes were for the entire area that was outlined.

Day said the notes were applicable to the entire development plan.  The execution of the agreement was applicable to just those two lots right now because that was the piece that was kind of driving that project.  She said it was somewhat compartmentalized in their department they knew that they were looking at a preliminary development plan for the whole thing and they were both looking at the macro and micro issue of this development.

Vice Mayor Amyx said that was why they had two agreements not-to-protest the formation of benefit districts to cover both of those improvements.

Day said correct.         

Moved by Rundle, seconded by Schauner, to concur with the Planning Commission’s recommendation to approve a Preliminary Development Plan (PDP-07-06-05) for Mt. Blue Addition No. 3, a proposed planned industrial development containing approximately 4.25 acres, (the property generally described as being located south of K-10 Highway and east of Franklin Road),  subject to the following conditions:

1.         Execution of an agreement not to protest the formation of a benefit district for future Franklin Road improvements;

2.         Provision of a revised Preliminary Development Plan to label the top of wall elevations around the detention basin;

3.         Provision of a note on the face of the Preliminary Development Plan that states:

a.         “Per City Code Section 9-903(B), a stormwater pollution prevention plan (SWP3) must be provided for this project.  This project will not be released for building permits until an approved SWP3 has been obtained. Construction activity, including soil disturbance or removal of vegetation shall not commence until an approved SWP3 has been obtained;” and

b.         “The intersection of Thomas Court and Franklin Road will be rebuilt when intersection improvements are constructed at Franklin Road and K-10 Highway.

4.         Provision of a revised Preliminary Development Plan to provide:

a.         Future dedication of a 30’ wide public access easement will be required between Thomas Ct & E 25^th Street to be developed at which time properties adjacent to easement are brought in for development of Franklin Road is improved;

b.         The location of a future cul-de-sac bulb shall be constructed as shown by notation on a revised development plan; and

c.         Provision of a corrected required parking citation to reference parking group 17 requirements.

5.         Agreement on the part of the applicant to participate in a future benefit district for improvements to the connection of 25^th Street and Thomas Court shall be required for development.

Motion carried unanimously.                                                                                                       (17)

Conduct public hearing regarding Anna Tappan Way special assessment benefit district maximum assessment.

Mayor Highberger called a public hearing on the proposed special assessments for Anna Tappan Way.

David Corliss, Assistant City Manager/Legal Services Director, said earlier this year the City Commission successfully adopted the resolution establishing the benefit district for the improvement of Anna Tappan Way which would be a new local street between Haskell Avenue and Hanscom Road on the north side which was 15^th Street. 

This benefit district was necessitated primarily because it involved more than one property owner.  Part of the area was owned by Hansom Tappan Addition 2^nd Plat which was a project they were familiar with to the north. The unplatted property was owned by another property owner.  The City Commission had successfully created the benefit district and the design had been presented to the Public Works Department. 

What the Commission would be doing this evening, would be to conduct the public hearing and if appropriate, upon the conclusion of the public hearing, adopting an ordinance establishing the maximum special assessments that would be assessed onto those properties. 

Pursuant to State law and the City’s policies, staff had notified the property owners and the proposed maximum assessments that were set out in the ordinance.  He said at the conclusion of the hearing the City Commission’s action would be to adopt the ordinance establishing those maximum assessments.

Mayor Highberger called for public comment.        

Upon receiving no public comment, it was moved by Hack, seconded by Rundle, to close the public hearing.  Motion carried unanimously.                                                           

Moved by Hack, seconded by Schauner, to place on first reading, Ordinance No. 7924, establishing the maximum special assessments for the Anna Tappan Way benefit districts.  Motion carried unanimously.                                                                                        (18)

The Mayor said he thought the name of Anna Tappan Way should be changed to 16^th Street which was a subject he wanted to address when they address the subdivision regulations.  He said in order to have a coherent neighborhood, there should be a coherent street naming policies.

Consider adoption of Ordinance No. 7927, amending the City’s ordinance regulating smoking in enclosed places.  

David Corliss, Assistant City Manager/Legal Services Director, said the smoking ban ordinance became effective July 1, 2004.  Since that time, there had been good and effective enforcement in compliance with the ordinance. There was a year history of the ordinance and staff thought the amendments were necessary for its continued effectiveness. 

The City was in litigation on this ordinance and staff anticipated it would proceed into the fall and staff thought those amendments were also appropriate given that litigation as well. 

Scott Miller, Staff Attorney, presented the staff report.  He said there were 5 changes in the ordinance presented.  The first change was aimed at trying to prevent any interpretation of the ordinance that would view it as limiting the power of the Police Department to enforce all of the ordinances of the City.  It explicitly sets out the Lawrence Police Department could enforce this ordinance even though they did place the primary burden of enforcement of the smoking ban ordinance on the fire department.

The second change was the change to language defining owner liability for individuals in control of property who allow smoking to occur on that property.  The language that the City now had made it illegal for a person to allow smoking on his property and allowing smoking was defined as having knowledge that smoking was occurring and under the totality of the circumstances acquiescing to the smoking that allowed both evidence of direct consent to the smoking behavior and what they had termed as a “head in the sand” approach where a person just ignored what was going on in properties as opposed to actively encouraging it or giving consent to it.

The third change to the ordinance changed the definition of smoking which was not a major change.  He said the definition focused on one aspect of the smoking process that was necessarily present in every circumstance when smoking is illegal – the possession of cigar, cigarettes, pipes, and other smoking devices.

The fourth change was a deletion of the phrase vehicles from the “places of employment.”  The ordinance as it was written was not designed around the idea of regulating vehicles and there were some enforcement problems that resulted from language that currently existed.  First, the Fire Department did not have any authority to stop motor vehicles and they were the people who were charged with enforcing this ordinance.  Second, the nature of motor vehicles the fact that there nature could change from time to time almost instantaneously and the fact that the vehicle were not marked as places of employment necessarily made it difficult just looking at the vehicle and deciding whether or not an ordinance violation had occurred. Third, there was some concern because Interstate 70 ran through this City as do several major state highways and there was concern individuals who were traveling through this City might run afoul of the ordinance and would not have any type of notice. 

Lastly, there were several changes to minor provisions in the ordinance. Changing the language so it was consistent from one provision to another and generally trying to make the ordinance read better.                 

Dan Owen, Attorney speaking on behalf of the Licensed Beverage Association, said he was not going to suggest that the City did not have the power to ban smoking.  It was a valid exercise of police power for developing safety and he was not going to suggest the City did not have the power to enforce that ban on smoking by writing tickets and bringing criminal liability on people that break that law.  Likewise, the City in their view could impose duties on property owners and business owners and subject them to criminal penalties if they did not do what they were supposed to, for example, posting signs that inform people of those policies.        

He said there were two major problems with this ordinance.  The proposed amendments in their view did not cure either of them in fact they made one of those problems worse.  The first problem was that he strongly doubted that City staff could write the City Commission a legal memo and find another ordinance in this country that had been actually upheld by a court that made one human being liable for failing to stop another human being from committing a crime.  When a person was going to be criminally liable for the criminal conduct of another they need either conspire with that other person, solicit with that other person to do that crime, or aiding and abetting that other person. Those were the three principles of what was called vicarious liability, liability for the crimes of another.  He said this ordinance went so far outside that thinking by making bar owners liable for failing to prevent another person from committing a crime.  He said he sat down with City staff and through this discussion and they were not in agreement and he suggested very strongly that the City Commission direct staff to try and give it some examples of making a human being liable for the crime of another where they did not participate, ask for it, condone it, or conspire to do it.  He said the City had to dismiss the only enforcement actions that were ever brought against a property owner.  He said this legal issue went to the District Court and the City dismissed the charges and he respectfully suggested that this approach was no better.  He said they did try to agree with City staff on some language that they thought was better than the previous ordinance and better than the original proposition for the amendments.  The basic concept of making one person criminally liable for the act of another that they did not participate in, was not found anywhere.

Commissioner Schauner asked Owen how he would differentiate this issue with a dram shop law.

Owen said in a dram shop law, the key liability was that the owner was actively providing the controlled substance to the person.  He said it was the act of providing it to the intoxicated person, the owners act.  He said if sitting in a dram shop and patron A pulled out a marijuana cigarette and gave it to patron B and the owner of the dram shop was liable for not preventing the transfer of marijuana, that would be unconstitutional and that was the type of issue at hand.  The owner was being held liable for failing to prevent the crime of another.  In other words, the owner was being made a mini law enforcement officer.  He said there were all types of other problems that when along with that such as how much force was used to prevent that act.

He said City staff and he hashed out this issue in great lengths and tried to come to some conclusion, but the whole concept was wrong.  He said the City could enforce this ordinance by writing all the tickets to people who illegally smoked and that would cause enforcement.  He said they could also write tickets to premises owners that fail to comply such as failing to post signs, adopt the policies or failing to do anything the ordinance stated, but the idea of holding the premises owner vicariously liable for someone wanting a cigarette was so far outside of anything that could be found in American law and he would challenge City staff to try to give him some legal briefing to the contrary. 

He said the second problem was much more serious.  The problem had to do with the idea there were going to be exceptions made for some businesses and not others. The law needed to be uniform to similarly situated businesses and there should not be any exceptions unless those were clearly related to the purposes of the law.  If that was not the case, it was going to violate the equal protection that was guaranteed in the constitutions.  He told the City Commission where this law got off on the wrong foot.  He said anytime staff, Commissioners, or anyone that sat down at a table and started to craft an exception to a law that only applied to one business that confers a benefit or detriment on only one business and they carefully write that law so that only one business was going to suffer the benefit and detriment and others that were similarly situated did not get the benefit or separate detriment, they would be off on the wrong foot and that was exactly what was done in this situation.  A quite reasonable exception in one sense was made for Hallmark Cards where that business had a separately ventilated area that employees did not need to go into and so all the purposes of the law were fulfilled. Innocent people were not exposed to second hand smoke and employees were not required to work in an environment filled with second hand smoke and yet people that chose to voluntarily expose themselves could go ahead and smoke and no violence was done to the purpose of the statute by making the Hallmark exception.  The reason he was present was for the economic interest of his clients.  The bar owners, club owners, members of and the Licensed Beverage Association, who could economically benefit from allowing their patrons to continue to smoke in an environment where two things were present: 1) members of the public were not involuntarily exposed to second hand smoke; and 2) employees were not required to work in an environment filled with second hand smoke. 

He said what they were asking for was that the City Commission send this issue back to staff to study the idea of taking exactly the same language that set out the requirement for the Hallmark exception for separately ventilated smoking areas where employees need not go during business hours and allowing those club owners who would flip the bill and spend thousands of dollars to create that type of atmosphere.  He said if that was not allowed, the completely arbitrary distinction that they were going to let Hallmark have that separate smoking section and nobody else, he respectfully suggested that it was going to render this law infirm in a court of law. 

He said there were other exceptions in that law.  For example, a person could have a room in a hotel where people were smoking in a meeting room, but an employee could not walk in because the purpose of the law would be violated.  He said there were exceptions that made even less sense for example, smoke shops.  He said he did not know why the lung tissue of employees and patrons in smoke shops was worth any less than anybody else and the vehicle exception really did not make any sense because the enforcement problems of a vehicle were no worse than the enforcement problems of that office building.  The Fire Department did not patrol for that violation and it could only be enforced if there was a complaint just like a vehicle.  He said he was asking that the same kind of consideration that was given to Hallmark where they had spent thousands of dollars to create a separately ventilated negative pressure area so that people who chose to smoke could, yet the purposes of the statute were still fulfilled.  He was asking that the same consideration be given to people who ran public establishments like those clubs.  He said their economic interest depended on it a lot more than Hallmark’s did.  He said he would also like to suggest that although City staff was going to say it was a rational basis test, there really was no rational basis for differentiating between smoking at Hallmark and smoking in a club, lung tissue was lung tissue and the purpose of the statute was the purpose of the statute.                                   

Commissioner Schauner said if he followed Owen’s analogy and if he accepted Owen’s premise then the other way they could resolve the issue was to remove the Hallmark exception.

Owen said he thought that was correct, that all exceptions should be removed.  He said not everyone that he represented wanted to hear him say that, but he thought if they put an across the board smoking ban, that had to be enforceable. 

Commissioner Schauner said with respect to vehicles, if one person was in a vehicle smoking, he asked Owens if that would not be a violation of the ordinance that was currently written that did include vehicles.

Owen said it would be a violation because as he read the ordinance, if there was one person in an office smoking that would be a violation. 

He said concerning someone driving through Lawrence not knowing about the City’s laws, he said people came into town to work all the time and a copy of the law was not handed to those people at the city limits.  He said there were thousands of examples of people coming into Lawrence and not knowing what the law was so those two rationales really did not make any sense.  He said neither police nor fire wanted to enforce those issues.  He said the question was if the City Commission was going to make exceptions, if they could still uphold the purposes of smoke free workplaces and safety from the public from second hand smoke, why wouldn’t the City Commission make the same exception for people whose economic livelihood was impacted.

Mayor Highberger said a number of communities had passed smoking bans that applied to restaurants, but not drinking establishments.  He asked if that would violate the Equal Protection Clause as well.

Owens said that depended on how the law was written because it certainly might.  He said if there was a rational basis for the distinction.  He said when talking about a health and safety issue where lungs were damaged just as equally whether inhaling that smoke in a manufacturing plant, retail establishment, office setting, or other public places, he found it very difficult to articulate a rational basis for those differences.

Commissioner Rundle said he understood that the Hallmark smoking room existed before that ordinance was contemplated.  He said he called to mind that anytime zoning regulations were changed they did not require all housing to meet the new codes if they were properly built under the previous code and many of those issues were health and safety related.  He this was basically grandfathering in something that was already in existence.

Owen said he and City staff had extensively discussed the grandfathering point and argument.  There were a couple of reasons it did not make any sense in this context.  The first reason was when talking about future prospective benefits from health and safety you were talking about on-going health issues. The same grandfathering argument could not be held to apply.  He said you were not going to make an older home any safer unless you do something non-economic such as tearing the home out.

The other reason he did not think it applied was that “grandfathering” was typically done even when it was done environmentally.  For example, older power plants that did not need to meet new standards.  That was to prevent a sunk cost from being lost and this ordinance instantly destroyed the value of tens of thousands of dollars worth of smoke eater equipment that had been installed and the value of physical improvements that were created in order to create some separate smoking areas that already existed.  The idea that they wanted to “grandfather” Hallmark because they had sunk costs in their smoking room, made no sense from an equal protection standpoint because no one else received that consideration.

He said the City should have a perfectly clear conscience about allowing smoking at Hallmark because the purposes were met.  Employees did not need to go into that room and no visitors would be inadvertently exposed to second hand smoke.  He said the City could equally have a clear conscience if they were to let Rick Renfro, owner of Johnny’s Tavern or Jerry Neverve, owner Red Lyon Tavern, create the same type of negative air pressure smoking lounge in their establishments.              

Rick Renfro, Johnny’s Tavern, said the argument he heard about why smoke shops were allowed to have smoking was that smoking was a major source of their revenues.  He said even though he had only lost 20% of his revenue, that still was a major part of his revenue.  He also did not see the logic concerning the vehicle issue.  He said he just wanted a level playing field.  If the ordinance could not be enforced across the board, it was not fair or right.  He said the Clean Air Group realized that this ordinance would not be able to be enforced all the time, but they wanted the majority of the people to get behind the smoking ban and enforce it and he thought that was what happened.   He said he could not see how the City Commission could pick and choose what places could and could not smoke.            

Jerry Neverve, Red Lyon Tavern, said there were some problems with the ordinance that need to be addressed.

Dr. Steven Bruner said the reason there was an indoor smoking ordinance concerning bars and restaurants was that people were willing to put up and jeopardize their health to be in social environments when there were people smoking not realizing the severity of the risk they were taking, but knowing that it was unpleasant and that there was some risk.  If it had only been the smokers that patronize bars and restaurants, they would have gone out of business a long time ago.  He said they depended upon the tolerance of non-smokers to stay in business when they allowed indoor smoking.  He said the people in the age group of 20’s typically think they were immortal.  The sum total of the risk to their life depends on the sum total of their lifestyle over the previous 20 or 30 years.  He said if we were all rational in protecting our own health and well being we might not need governmental health and environmental regulations at all.  

He said Hallmark Cards was “grandfathered” and maybe it was a good idea and maybe it was a bad idea or maybe it could have been “grandfathered” out over a certain number of years as they had done in other place such as Austin, Texas allowing them to recoup their investment.  The fact that company was “grandfathered” in no way meant that someone should try to get around the law and the public health implications of the law by setting up those independent environments. 

He said concerning the vehicle issues, he knew there was a problem in enforcing that issue.  If the problem was enforcing that particular part of the ordinance, and it placed the ordinance as a whole in jeopardy, he was in favor of getting indoor smoking in vehicles out of the ordinance. But if that was the case he suggested revisiting that issue as a separate ordinance with its own separate set of compliance provisions because that individual in that closed environment with three other smoking employees should have the law on his or her side.  He or she should be able to complain and expect some action on the part of the City.  He said the most important thing right now was to make this ordinance, which was working extremely well, continue to be the law of the City and not be overturned for some technicality in a court of law.  He thanked the City Commission for making this a healthier, livable and prosperous city. 

He said in the first eight months there was 4 million dollars in increased revenues to the hospitality industry, as a whole compared to the economy of this city as a whole.  The effect on liquor sales had been negligible and the effect on food sales had been substantial and positive.               

Kathy Bruner, Clean Air Lawrence, said in conversation with Rich Barr, Fire Marshall, they found that enforcement had not been a huge problem.  She said they performed an undercover sting, the weekend of the 4^th of July and the weekend afterwards.  They sent people out in plain clothes and found only a few people that were not complying with the ordinance, but overall this had been a wonderfully positive ordinance for this community.

She said in listening to the three previous speakers what they were asking for was no exceptions and that was something the City Commission might want to think about as far as Hallmark. 

The Association for Heating and Air Conditioning performed all of the studies and provided equipment, but they would not accept any liability because they knew they could not make those smoke free ventilation rooms work. 

This issue had been complaint driven and there had not been that many complaints and the positive aspects were phenomenal.  She thanked the City Commission for staying steadfast on this issue.

Mayor Highberger asked staff to address the comments raised by Owen, particularly the equal protection argument.

Corliss said staff’s general response to that comment was that staff had reviewed the court decisions and case law interpreting similar ordinances to the City’s prohibition on smoking in most public places and staff felt very comfortable that they had an ordinance that would be sustained.  The distinctions that were made in the City’s ordinance were very similar to those that had sustained elsewhere, but Owen had a different opinion.  He said Owen even had a different opinion two weeks ago, but staff disagreed with Owen’s opinion.     

Mayor Highberger asked about the vicarious liability argument.

Corliss said it that was the same issue.  He said staff thought that if someone was opening up their premises to the public, they had a responsibility and the law could put that responsibility on that owner or operator that was controlling that premises and if that owner or operator knew there was a violation and they acquiesce on the violation, staff thought they could be held legally responsible for it.    

Commissioner Schauner asked staff to address the Hallmark Cards exception and how it might be related to the equal protection argument.

Corliss said as he understood the argument, they did have an exception in our ordinance that indicated that if complying with the requirements for a smoking/break room for employees and that room was in existence at the time of the adoption of the ordinance they were allowing that smoking to continue.  He said Owen’s argument would be that they were treating similarly situated properties or businesses differently.  He said they were, but they thought the law allowed them to do that, given the different exceptions that were stated.  He said this reflected the fact that this was a state-of-the-art facility as far as smoking was concerned that they had similar sized facility where there was no smoking as far as a break room and it listed all the other different qualification as to why they thought it made sense to recommend that exception to the City Commission.

Mayor Highberger said because there were no protected classes involved all the City Commission needed was a rational basis to have the ordinance withstand scrutiny.       

Corliss said all the City Commission needed was a rational basis, but there were legal requirements.  He said they needed to be able to sustain why they had allowed this to exist and not allowing something similar to that.  He said they made the investment into that facility.  The problem that the evil of the ordinance was trying to prescribe was employees or patrons having to breathe smoke from smokers and that was not happening in those types of break rooms.

Miller said concerning the vicarious liability comment, the liability that Owen’s was talking about would apply if for example, they made it a requirement that any citizen of the City of Lawrence who saw someone else smoke had to take enforcement action at the time they saw someone else smoke illegally.  He said there was a difference between that thinking at this situation because in this situation they were imposing liability on behalf of a property owner for what happened on their property.  The law had numerous examples, but a quick review of the law showed seventeen different Kansas statutes that use the word “allow.”  He said K.S.A. 41-2604 applied specifically to the liquor industry and it dealt with people who allow drinking to occur in violation of the act.  He said because they were owners of a business and they allowed things to go on in their for-profit business, he thought the City had the opportunity to legislate regarding what occurred on that for-profit business.  He said it was not a situation where you were dealing with normal vicarious liability principles.  It was very analogous to what was done with the City’s nuisance house ordinance.  He said they made it the responsibility of a property owner for the acts that occur on their property and that occurred all over the law and he could cite those counter examples that Owen’s said that the staff would not be able to do.                    

Commissioner Schauner asked staff to address the smoke shop issue.

Corliss said he was not aware of any court cases on that specific issue.  He said he was trying to think of the language in other court decisions that have upheld similar smoking bans where those types of exceptions had existed.  He said he did not know if that issue had been specifically litigated. The rational basis could be articulated sufficiently to sustain a challenge on that issue.    

Commissioner Rundle asked if staff knew of specific ordinances that had been successfully litigated that prohibited smoking in work vehicles. 

Corliss said he was not aware of any of those types of litigations.  He said there might have been some of those types of litigation in other communities.  He said there had been a number of challenges across the country on smoking bans in public places and places of employment that might have included vehicles, but he did not know.  He said it was fair to say that last year when this ordinance was enacted, the issue of smoking of commercial vehicles was not front and center and was not a great deal of their deliberation and quite frankly was not a great deal of staff’s analysis as far as their ability to either enforce it or to have a clear link to the purposes behind the ordinance.

Commissioner Rundle said this ordinance was written to apply to all workplace situations for the reasons of fairness, uniformity, and a level playing field.  He said he was willing to go the opposite direction.  He said he had not understood the exceptions of the smoke shops although it was found in a lot of other model ordinances.  Also, in those model ordinances, smoking in vehicles was prohibited and he would like to know if that had ever been successfully litigated

He said an employee from Hallmark had informed him that their administration complained often about health care costs and that the City Commission should not let Hallmark have the exception.    

Mayor Highberger said he saw no equal protection problems.  He said the City Commission had gone out of their way to try and make this ordinance so that it did not unnecessarily impact different businesses differentially.  He said he understood there was some businesses that had suffered sales losses and he regretted that, but his fear was if they had a smoking room exception people who could afford to install smoking rooms and fancy ventilation equipment would have an advantage over smaller businesses that could not afford it and also it would be impossible to enforce.  He said there was absolutely no way to have a smoking room in a drinking establishment or restaurant and not have employees in that room a fair amount of time. 

He said he did not have any problem removing the vehicle requirement.  He said anyone who was in a vehicle with a smoker could ask that smoker to not smoke and if that smoker continued to smoke, he thought everyone knew words for those types of people.  He supported the ordinance as drafted by staff.    

Commissioner Hack said the City Commission was looking at amendments to the City’s existing ordinance.  She said this amendment remedied two of the concerns she had with the vehicles as well as the liability issues. 

She agreed with the Mayor in no matter what anecdotal evidence the City Commission heard for the general entertainment industry, she said she knew there were businesses that had done better and that there were people happy with the smoking ban and that there were still businesses that were suffering which had always been a concern and would always remain a concern because those were Lawrence’s small local businesses and the City Commission put into place something that had hurt them.  She said she nevertheless would support those two amendments.        

Commissioner Schauner said he has heard anecdotes that there were some places that late at night the smoking lamps were lit and he suspected that probably did happen.  He said he did not think this ordinance was one-hundred percent enforceable anymore than the 30 mph speed limit down some street in town was one-hundred percent enforceable.  He said he did not think any legislative rule or regulation that the City Commission, State, or Congress passed was going to be honored a hundred percent of the time.  He supported this ordinance in the beginning and he supported the amended Ordinance 7927.  He said he would prefer to see the exception for Hallmark eliminated.   He said it at least created an impression of favorite treatment even though he suspected there was not an equal protection argument problem.   He said he supported the changes as proposed.              

Commissioner Amyx said he had discussions with people in the entertainment industry, drinking establishment industry, and people from Clean Air Lawrence, and it seemed that one of the issues was that this had gone from a time when they were going to clean up the ordinance and also add the conditions for safe harboring.  He said he did agree that the enforcement was never going to happen one hundred percent of time.  He said he thought he would hear from the folks in the bar business forever until this Commission or a future Commission made a change and allowed smoking to happen, but he did not think that would happen.  He said he had discussed with some citizens, the idea of letting people smoke in establishment that just sold alcohol.  He said he would support the ordinance, but if there was something specific that anyone wanted the City Commission to consider, he asked that that item be brought to the City Commission for consideration.            

Commissioner Rundle said the model ordinance in other areas required the owners to post signs to inform people that smoking was prohibited and ask them to leave if they did not comply.  He asked if the City would be requiring staff to go beyond that general level of enforcement or would there be a separate penalty.

Corliss said there was probably an argument that staff did go beyond the enforcement described in the model ordinances.  If the owners had knowledge that smoking was occurring on the premises that they control or manage and they acquiesce in the smoking under the totality of the circumstances that they see it, know it and they did not do anything about it then they were essentially allowing it to continue.  Therefore, staff had, under this ordinance, the ability to attempt to prosecute them in Municipal Court for a violation of the ordinance.            

Moved by Amyx, seconded by Schauner, to place on first reading Ordinance No. 7927, amending the City’s ordinance regulating smoking in enclosed places.  Motion carried unanimously.                                                                                                                        (19)

PUBLIC COMMENT:  None

Moved by Schauner , seconded by Amyx  , to adjourn at 9:20p.m. Motion carried unanimously.                                                                                                                                         

APPROVED:

_____________________________

Dennis Highberger, Mayor

ATTEST:

___________________________________                                                                       

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF SEPTEMBER 13, 2005

1. Agreement – Phase II of 7 & 8 block of Mass, for waterline improvements to BG Consultants for $115,936.21.

2. Agreement – Carnegie Library architectural services to GLPM Architects fro $69,900.

3. Ordinance No. 7925 – 2^nd Read, blasting regs from UFC.

4. Rezone – (Z-07-44-05) .99 acre, M-1 to RO-2, between E 19^th & Homewood.

5. Text Amendment – (TA-07-02-05) Subdivision Regs, concurrent submissions of preliminary & final plats. 

6. Temporary User Permit – (TUPR-08-27-05) Bella Sera at the Preserve, 4600 Bob Billings Pkwy, tent display, Sept 23-24 & Oct 1-2.

7. Signs of Community Interest – Home Builder’s Assoc Fall Showcase 

8. City Manager’s report.

9. Sesquicentennial Commission’s final report

10. Bid - GOB/Temp Note           

11. Ordinance No. 7926 – 1^st/2^nd Read, GOB, Series 2005-A.

12. Resolution No. 6610 – Series 2005-A for $11,105,000.

13. Resolution No. 6611 – GOB/Temp Note Series 2005-I for $24,125,000.

14. Prelim Plat – (PP-06-12-05) Mary’s Lake Add, N of 31^st & E of Haskell, 15.98 acres.

15. Rezone – (Z-06-36-05) 8 acres, M-1A to RS-2, S of Harper & E of Haskell.

16. Rezone – (Z-06-37-05) 2.09 acres, M-1A to RS-2, N of 31^st & E of Haskell.

17. Prelim Dev Plan – (PDP-07-06-05) Mt. Blue Add No. 3, 4.25 acres, S of K-10 & E of Franklin.

18. Ordinance No. 7924 – 1^st Read and Public Hearing – Benefit District, Anna Tappan Way.

19. Ordinance No.  7927 – 1^st Read, smoking in enclosed places.