November 8, 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.  Lawrence High Student Commissioner Anthony Frei was present.

RECOGNITION/PROCLAMATION/PRESENTATION:

Mayor Highberger recognized city employees who have served or are currently serving in the Armed Forces.

With Commission approval Mayor Highberger proclaimed November 11, 2005 as “Veterans Day”; November 12, 2005 as “Buddy Poppy Day”; and the week of November 14-20, 2005 as “Children Book Week.”

CONSENT AGENDA

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to approve the City Commission meeting minutes of October 25, 2005.

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to receive the Hughes Carnegie Center Group meeting minutes of October 24, 2005.  Motion carried unanimously. 

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to approve claims to 305 vendors in the amount of $2,328,596.79.  Motion carried unanimously.          
As part of the consent agenda, it was moved by Amyx, seconded by Hack, to approve the Drinking Establishment Licenses for Last Call, 729 New Hampshire; and Mad Greek, 907 Massachusetts.  Motion carried unanimously.   

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to concur with the recommendation of the Mayor and appoint Barbara Hogue to the Community Commission on Homelessness, to a term which will expire December 13, 2007.  Motion carried unanimously.

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to authorize the City Manager to enter into a contract with Nutri-ject Systems, Inc., for $49.34 per dry ton for the removal of lime from the lime storage lagoon.  Motion carried unanimously.      (1)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to authorize the City Manager to sign a scope of services and engineering contract from Black & Veatch to complete a two phase update to the 2003 Wastewater Master Plan to evaluate the impacts of growth in the northwest area and the implications of additional flow to the sanitary sewer collection system for a not-to-exceed amount of $80,500.  Motion carried unanimously.  

(2)

The City Commission reviewed the bids for the plastic manhole replacement project for the Utilities Department.  The bids were:

BIDDER                                  BID AMOUNT           

McLouth Excavating                                        $146,000

                        Nowak Construction Co. Inc.                          $170,650

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to award the bid to McLouth Excavating, in the amount of $146,000.  Motion carried unanimously.                 (3)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to approve the site plan (SP-09-74-05) for Lake Pointe Villas, a 60-unit duplex residential development located at 2221 Lake Pointe Drive, subject to the following conditions:

1. Provision of the following documents:

a. Execution of a site plan performance agreement.

b. Execution of an encroachment permit with Southern Star Gas.

c. Provision of an addressing scheme from Lake Pointe Drive for individual dwelling units.

d. Provision of a photometric plan for the off-street parking areas not immediately associated with specific dwelling units prior to release of the site plan for issuance of a building permit.

2. Dedication of an access easement within the interior of the development and show the deed book and page on the face of the site plan.

3. Approval of downstream sanitary sewer study by the City Utilities Department.

4. Submission and approval of public improvement plans as required for sanitary sewer, water, and storm sewer prior to issuance of building permits.

5. Approval of the drainage study by the City Public Works Department.

a. Provide drainage easements by separate instrument if applicable with public improvements plans for the proposed storm sewer. Provide a note with the deed book and page for drainage easements to serve this development as applicable (if required for drainage easements, per City staff approval).

b. Provision of a note on the face of the site plan that states: 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

6. Provision of a revised landscape plan to include following changes: (Per staff approval)

a. Include mixture of plants, berms, and fencing around boundary of property along with English Box Hedge. preferably native or adaptable to create a layered, natural look of multiple heights and widths, include some evergreen and deciduous.

b. Recommend use of groupings of screening directly behind the buildings and smaller trees evergreen shrubs.

c. Provision of additional screening abutting the off-street parking areas across from the office building and between buildings 23 and 24 and north of building.

7. Provision of a revised site plan to include the dimension of office building and list square footage.

8. Provision of notes regarding the swimming pool to state:

a. Swimming pool construction shall comply with city code Chapter 19, Article 11 and

b. Show and note how will pool shall provide for accessible access.

 Motion carried unanimously.                                                                                                         (4)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-08-28-05) for Stoneridge East, a proposed residential subdivision containing approximately 14.716 acres, and includes 13 single-family lots and one multi-family lot, located at the southeast corner of West 6^th Street and Stoneridge Drive (extended); and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Submittal of a downstream analysis for wastewater services and approval of this analysis by the City Engineer prior to scheduling of the Final Plat on the City  agenda for acceptance of easements and rights-of-way;

2. Submission of a public improvement plan for Lots 2-14 prior to recording of the Final Plat with the Register of Deeds office;

a. Provision of a note on the face of the Final Plat to state: “Submission of a public improvement plan is required for Lot 1 prior to recording of a Final Development Plan for Lot 1;”

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; and

d. Provision of street sign fees.

6. Execution of an agreement that defers any development of Lot 1, Block 1 of Stoneridge East until the completion of Stoneridge Drive to the north property line and including an intersection with W. 6^th Street.

Motion carried unanimously.                                                                                                         (5)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-08-26-05) for Green Tree Subdivision No. 2, a replat of all of Block One, Lots 16-19, Block Two, all of Block Three and all of Block Four, Green Tree Subdivision, a proposed 68-lot residential subdivision containing approximately 13.048 acres, property is generally described as being located at the northeast corner of George Williams Way and Harvard Road; and accept the dedication of easements and rights-of-way subject to the following conditions:

1.         Submittal of a downstream analysis for wastewater services and approval of this analysis by the City’s Utilities Department prior to scheduling of the Final Plat on the City  agenda for acceptance of easements and rights-of-way;

2.         Provision of a note on the face of the Final Plat restricting building and fences in drainage easements;

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

4.         Execution of a Temporary Utility Agreement; and

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; and

c. Provision of a master street tree plan.

Motion carried unanimously.                                                                                                          (6)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-08-27-05) for Fall Creek Farms 12^th Plat, a proposed 20-lot single-family residential subdivision containing approximately 16.09 acres, property is located west of Kasold and south of Peterson Road; and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Lots 1 through 8, Block One, of the final plat for Fall Creek Farms approved 03/14/95 shall not be allowed building permits until such time as sanitary sewer capacity issues are resolved for KR-2 to the satisfaction of the city. The city anticipates that, subject to the completion of the aforementioned sewer capacity study for KR-2 in the spring, 2006, more definitive information will be available concerning the city’s ability to allow building permits for these lots;

2. Provision of the following fees and recording documentation:

a. A current copy of a paid property tax receipt;

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

c. A completed Master Street Tree Plan in accordance with Section 21-7081.3.

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

4. Submittal of public improvement plans for the construction of Fall Creek Drive (extended) and Wilderness Way, sidewalks associated with both streets, and extension of sanitary sewer, stormwater, and water mains;

5. Inclusion of a note on the final plat, stating: “Adjacent property owners will be required to maintain all drainage easements. Structures, fences and/or cut/fill operations are prohibited within drainage easements;” and

6. Inclusion of a note on the final plat, stating: “The temporary turn-around on Lots 8 and 9, Block One, will be removed with the permission of the city engineer when Fall Creek Drive is extended to the north of the platted property.”

Motion carried unanimously.                                                                                                          (7)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to concur with the Planning Commission’s recommendations to approve the Final Plat (PF-09-34-05) for Westwood Hills, replat of Lots 29 and 30A, a proposed 2-lot residential subdivision containing approximately .416 acres, property is generally described as being located at 5208 and 5204 Brown Lane; and accept the dedication of easements and rights-of-way subject to the following conditions:

1. Provision of the following fees and recording documentation:

a. A current copy of a paid property tax receipt.

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

c. A completed Master Street Tree Plan in accordance with Section 21-708a.3.

Motion carried unanimously.                                                                                                          (8)

As part of the consent agenda, it was moved by Amyx, seconded by Hack, to authorize the Mayor to sign a Release of Mortgage for Shari Bradt, 422 Mississippi Street.  Motion carried unanimously.                                                                                    (9)
As part of the consent agenda, it was moved by Amyx, seconded by Hack, to authorize the City Manager to sign a Memorandum of Understanding for the Safe Winter Walkway Program.  Motion carried unanimously.                                                     (10)
Barbara Sabol requested that Ordinance 7942 be pulled from the consent agenda for separate discussion.  She said she appeared before the Commission in August discussing a project she was attempting to complete at 500 Florida Street. She understood from that last discussion that the moratorium would not be extended.  She said she was denied an exemption at that time and that discussion led her to believe that the moratorium would not be extended.  She said she was curious about how that change happened.  She said the City Commission meeting minutes stated that if the Commission were to extend the moratorium, they would grant the exemption at the time the moratorium was extended.
JR Demby, Lawrence, referred to the August 9th City Commission meeting minutes.  He said there were comments made by Commissioners Rundle, Schauner and Highberger, all relating to the fact that there would not be any additional support for the continuation of that moratorium.  As he understood the moratorium, it started July 2004 and there had been 2 extensions and the City Commission was being asked to approve an additional moratorium.  Quite frankly this was one particular property that this owner had tried to develop, and for whatever reason, there was not any communication about this issue.   
One of the comments made by Commissioner Rundle was that it would be nice if the neighborhood made contact or stayed in contact.  However, there had been absolutely no contact.  He said Sabol joined the neighborhood association and there was a nominal fee of $2.00 to receive the newsletter and they had also tried to make email contact.  
He said Sabol spoke to Steve Braswell, Pinckney Neighborhood Association, after the meeting and a promise was made that they would stay in contact with Sabol, but there had been no contact.  He said the point was that they were back again having to face another moratorium, which he understood would be in effect until February 1st and there was no guarantee that there would not be another extension of a moratorium.  There came a point in time when someone needed to stand up and state that enough was enough.  He said all Sabol wanted to do was to build a similar property.  Financially, Sabol had committed a lot of money on this project and this was not some conglomeration, but one individual trying to do something to help alleviate the homelessness in this community.  He said they had redesigned this project three times and had gone from a four-plex to a tri-plex and now a duplex.  He said they had been negotiating with Community Living Opportunities (CLO) in order to provide a custom design building that would accommodate the clients of CLO.   He said this project had nothing to do with the neighborhood association, but what came from Sabol’s heart and what she was trying to accomplish.  
He said whatever the City Commission did, the Commission already indicated that there was no more support for the moratorium, let that go and allow Sabol to apply for a building permit.  He said his client had spent a lot of money on the architectural plans as well as other preparations on the lot, to only be told that even though she was trying to do what was right, it could not be done and to this moment he did not understand why it was necessary to deny Sabol the opportunity to build this property. He respectfully requested that the moratorium not be extended.                
Gwen Klingenberg, Pinckney Neighborhood Association, requested the approval of Ordinance 7942, continuing the HOP building permit moratorium because they had found that out of all of the missed match of zoning and uses, there were seven houses that needed to be protected.  She said she had not heard from some of those owners, but she had now.  She said from the owners that she heard from they were excited about the chance to undo the damage that was done many years ago when they were summarily dropped into multi-family zoning.
She said Sabol’s property at 500 Florida was not found to be in that area so they had no problem with whatever the Commission needed to do in order to help Sabol, but they would like to see that the moratorium continued for at least those seven homes.  She said she would like to clarify that they had a moratorium for the whole entire HOP area that did stop and then a moratorium was put in place on three specific parts of the neighborhood and it was not the same moratorium and not a continuous situation for the same moratorium.  
She said they had a case in which one of the seven houses that they were discussing was up for sale and if the moratorium were to drop and someone bought that property and tried to construct multi-family then that would totally destroy the other six property owners from being able to keep their single-family homes as a single family zoning.  She asked that the City Commission continue the moratorium. She said she had been told that this section and several other houses should be considered historical and they needed to protect the single-family homes.     
Commissioner Rundle asked if this property was within the moratorium area.
Michelle Leininger, Planner, said the property that Sabol was discussing was within the current moratorium, but was not included in the recent initiations for rezonings that were brought before the City Commission.  
Commissioner Rundle said the basic point was that the new ending of the deadline corresponded with the end of the planning timeline for those rezonings to get through that process. 
Mayor Highberger said he understood that they could grant a wavier to the moratorium and if so, he asked how long it would take to go through that process.  
David Corliss, Assistant City Manager, said the Commission could grant a wavier to the moratorium, but they could also amend the moratorium ordinance on second reading to only apply to the property that they were seeking to have rezoned.   
Commissioner Schauner asked Klingenberg if the zoning for Sabol’s property was not going to be changed as a result of the work that the Pinckney neighborhood had done.
Klingenberg said no, it would stay the same.  
Commissioner Schauner said by amending out all the Pinckney property other than the seven properties, would not interfere with the work that the Pinckney neighborhood had been doing the past several months.
Klingenberg said she did not believe so.  She said those were the only seven properties that they would be able to down zone. 
Commissioner Schauner asked if that idea was based on a concern from City staff about spot zoning.
Klingenberg said yes. 
Commissioner Rundle asked if there was any problem with amending the ordinance to take that single property out.  He said if something happened in the area nearby because the zoning looked at adjacent properties, would that have an effect on that area.   
Finger said it should not impact that area.   
Mayor Highberger said he apologized to Sabol and Demby.  He said they were correct that he had expressed his unwillingness to extend the moratorium and when the issue came up last week he did not say anything.  He said he supported staff’s recommendation in extending the moratorium on the areas where rezonings had been initiated and allow the moratorium to lapse in the rest of the area.     
Commissioner Hack said she was not a fan of moratoria anyway and this issue had gone way beyond what was appropriate.  She said she understood the need to protect the neighborhood, but she also understood the on-going need of property owners to protect their own property.  She agreed with the Mayor that this was a situation that they should apologize to Sabol and Demby.   She said being transparent in communicating was something that they needed to work on.
Corliss suggested repealing the remainder of the moratorium ordinance because the moratorium did not expire until December 10th.  He said if it was the Commission’s desire to have the moratorium in place for the property that had sought rezoning, then that property would be removed so that if Sabol or others similarly impacted would seek to get a building permit before December 10th, they would be able to do that.            
Moved by Highberger, seconded by Schauner, to place on first reading Ordinance No. 7942, as amended, continuing the HOP building permit moratorium until February 1, 2006 for those properties of which rezoning has been initiated and repealing all other sections of the current moratorium ordinance.    Motion carried unanimously.                                                   (11)
Commissioner Schauner said he knew this had been a long process, but at the same time the people had been doing the leg work had been volunteers.  He said he did not want the volunteers who did this work to think that the Commission was taking a slap at them.  He said they were underappreciated and unrecognized in this effort.  He thanked everyone in the entire HOP area for their work in this process.
Commissioner Rundle agreed.  He said the Commission needed to apologize for not keeping Sabol informed, but planning took the time it took and he did not think they needed to apologize for those paces.       

CITY MANAGER’S REPORT:

During the City Manager’s Report Mike Wildgen said concerning the building codes, there were several Board meetings taking place this month and the City Commission would be seeing a draft of those code changes.                                                                                          (12)

REGULAR AGENDA ITEMS: 

Conduct a public hearing to consider the vacation of a 15’ drainage easement centered on the property line of Lots 54 and 55, Block 1, Deerfield Woods Subdivision No. 8.  

Chuck Soules, Public Works Director, presented the staff report.  He said the easement was dedicated on the plat as a drainage easement.  The storm sewer was constructed and installed between lots 54 and 53 and this easement was not necessary.  He said staff did not have a problem with the request and no utilities had been located in that easement.    

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 approve the Order of Vacation of a 15’ drainage easement centered on the property line of Lots 54 and 55, Block 1, Deerfield Woods Subdivision No. 8.  Motion carried unanimously.                                                                    (13)

Consider and direct staff concerning possible reconstruction options of Kasold Drive, between Bob Billings Parkway and Clinton Parkway.

Commissioner Rundle said he requested this agenda item because he changed his position on his support of the more expensive option that was going to back away from the properties affected especially because of its impact on the sidewalk.  He said it was very important to get those sidewalks when they could.  He said it moved the sidewalk closer to traffic and made it a six foot sidewalk instead of an eight foot sidewalk.  He said if they were going to put in that amenity then it would be better to be as safe and as useful as possible.  He said he would rather support Option 5.

Mayor Highberger called for public comment.

Price Banks, Lawrence, said we were dealing with a project that puzzled him because it was another case where the reduction in scale increased the cost.  He said what they had was nine feet of concrete before the curb began and that was not a six foot sidewalk, but a nine foot sidewalk.  It had two feet of exposed aggregate concrete, six feet of regular concrete, and one foot of exposed aggregate concrete. 

He said there was an initial proposal to drop Kasold into a trench with canyon walls on both sides and industrial railings.  He said most recently it was suggested that in order to scale down the project, the design costs were going to be $80,000.  He said he collaborated with an engineering firm in Kansas City and he would like that firm to have a crack at that design if the City Commission would be so kind to open the bidding process again.  It was astounding that they were talking about $80,000 to make a relatively minor change in the project.  Even if they were talking about $80,000 there was something missing in Option No. 5.  Option No. 5 never considered the acquisition of any construction easements along the west side.  Option No. 5 could not be done without acquiring construction easements and if the construction easements on the west side did not cost at least $80,000 or more like $100,000 then his neighbors were not paying attention because they should not be giving the City that land and not allow them to come onto their property and rip out mature shrubbery.  He suggested that he had 100 trees and shrubs on his property and that was not going to be cheap and the City needed to take it in order to erect those retaining walls.  Increasing the scale of this project would not save any money, but cost money.  The way to save money would be to forget about dropping Kasold into a trench, leave it at the same grade level, and maybe put in the nine foot sidewalk, six foot of pavement and three more feet of exposed aggregate.  He said to enlarge the project as an engineering challenge and to increase the construction budget did not make any sense.

Carol Gilmore, Lawrence, said her back property line was on the Kasold hill.  She said either design left her with challenges in terms of the property so she would go with the will of the group.  She said she would like consideration for the fencing on top of the retaining wall if Option 5 was selected.  The fencing was proposed to be a wooden fence.  Her property line was 50% larger than any other property owner and she would bear the expense of maintenance and replacement.  She said with professional consultation with a landscape architect, she would have more option if she had metal railing as opposed to a wood fence on her portion of the street.  She said there was currently not a fence on her property and putting a railing that would marry up against a wood fence for the properties north of her would be fine because she planned on using plant materials against a railing as opposed to having to deal with a wood fence. 

She said she had concern about the construction easement because she took out most of her vegetation, some of which would not bother her and some of it would so she had some concerns about how far into her property the workers would be because she was only 30 feet from the drop-off on one edge of her home.      

David Springe, Lawrence, said he lived on the edge of this project.  He said he did not have property issues, but he was concerned about the sidewalk.  He said he did not feel strongly one way or another about where the sidewalk went, but living where they did, they had great bike paths on the 23^rd Street side and going out to the lake. He said a person could not go from 23^rd to 15^th Street anywhere between Iowa Street and Inverness.  He said there needed to be a good path whether it was a wide sidewalk up the west side.  He said he had seen other alternatives that actually cut down through the KU land, but he did not know the status of those alternatives.  Again, one good pathway was needed going from 23^rd Street to 15^th Street and if the sidewalk was on the west side this project so be it, but make sure that path was there for those who like to get out and bike and walk.        

George Catt, Lawrence, said he thought this was all resolved and there was a decent compromise.  He said Banks brought up a good point that if the Commission approved the higher walls and wider sidewalks the City would need to acquire construction easements and he promised those easements would not be given to the City, but the City would need to extract those easements.     

Richard Gaito, Lawrence, said if Option No. 5 was approved, they needed to make sure there were good sidewalks because there needed to be good flow to the north.  When people jog, they jog down the middle of the median or on the roads.  He said this road was not for the select few people that lived on Kasold, but for the citizens of Lawrence.      

Jim Craft, Lawrence, said he agreed with many of the things previously said.  He said this was a very difficult issue and he could appreciate the Commission’s struggle.  He said he had conflicting thoughts about this issue since it started.  He agreed that a sidewalk was needed.  Just recently a car hit a bicyclist in front of his house.  He said he rode a bicycle a lot and people were risking their lives coming from Clinton Parkway up that hill heading toward 15^th Street.  He said he thought they needed a wide sidewalk and also, if they lost that greenspace in the middle of Kasold Drive, they would be sacrificing a lot of aesthetic value to that street.  He said for every improvement that the City made, that street got uglier.  He said that strip of greenspace in the middle which would be preserved on Option No. 5, but lost on Option No. 6 was important.  He urged the Commission to go with Option 5.

Commissioner Schauner said in earlier discussions there was discussion about construction easements.  He asked what was Soules’ view concerning the need to have construction easements under Option No. 5.

Soules said either option would have construction easements.  On Option No. 6, because those driveways would need to be tied back in, the way they were going to build the wall, it would be structurally reinforced and it could be built vertically at that property line.  He said it was their intent to replace all of the fences so that they would all be consistent.  If the owners did not want that consistency to happen, then it did not need to be done.

Joe Caldwell said, regarding the issue with the construction easements, there was a utility easement along that corridor and their conversations with staff had always came back to, because the utility easement was there, utilities would be relocated into that easement so they had to avoid those easements because they did not want to relocate those easements twice.  He said if they used one or two feet to get the fences put back that would still be within that existing utility easement and they would not be going beyond any easements. 

David Corliss, Assistant City Manager/Legal Services Director, said they would still need to obtain a construction easement even if it was just for a two foot band to be able to do what Soules talked about. 

Commissioner Schauner asked if they would need a construction easement for Option No. 5 or Option No. 6.

Soules said it appeared that on the west side that they would need some construction easements.

Commissioner Schauner asked if that idea was for both options, or just one option.

Soules said just Option No. 5.

Commissioner Schauner asked who determined the value of the construction easements.

Corliss said what was usually done was to obtain appraisals from qualified appraisers within the community and offer that appraisal to the property owner and if they were not able to come to a negotiated settlement, then they could go to court and through the administrative process, the court appointed appraisers would tell them the amount that they needed to pay in order to get that property interest.

Vice Mayor Amyx asked about the timeframe of that idea.  

Corliss said if going straight to court, it was approximately 2 ½ months if the Commission asked staff to go get those temporary construction easements and they had the correct legal descriptions and filed a soon as possible.

Commissioner Schauner asked if they needed to wait until they had the final price before the work could commence.

Corliss said they would need the court appointed appraisers to tell staff the dollar amount and that day staff could deliver a check to the court and on that day they would own that property interest and could occupy it pursuant to that property interest.

Commissioner Schauner asked if that court appointed appraisal could be subject to a challenge.

Corliss said yes.  He said there could be a full-blown case in district court to challenge the value of the property interest that was acquired.  The court had already determined in the proceedings that the city would have the legal interest to use its condemnation powers to acquire those easements.  The issue in court later on was the value.           

Commissioner Rundle asked if the property acquisition costs were already included in the current estimated costs.

Corliss and Soules both said no. 

Commissioner Hack if the median issue could be addressed and what the length of the solid concrete median was in Option No. 6.

Caldwell said they were talking about north of Augusta about 150 foot to north of Scioto another 150 feet.  All total there was a total of 1100 or 1200 feet where there would be a narrow concrete median section.       

A member of the public asked how much in total was that idea.

Caldwell said the project length was 4200 to 4300 feet which was roughly 20% to 25%.  

Mayor Highberger asked if the fence would be on top of and attached to the retaining wall under Option No. 5.  He said he was surprised to hear that Gilmore would have maintenance responsibilities.

Soules said under Option No. 5, there would be a wood privacy fence, but staff could work with Gilmore on the type of fence she wanted.  He said the fence would not be on top of the retaining wall.

Mayor Highberger said with the approval of Option 5, he asked if staff could work with Gilmore.

Soules said yes.

Commissioner Schauner said he was not sure he heard an answer to the question about whose responsibility it was to maintain the wooden fence on top of the retaining wall on Option No. 5.  

Soules said it would be the property owners’ responsibility. 

Tom Wilcox, property owner on Augusta Drive, said he had some concerns about the median strip.  The way it was built at this time offered protection for people who were trying to make turns along Kasold whether it was down by the apartment complex or any of the other streets.  He said they would like to have the median for protection allowing time to be able to turn through traffic.  He said the median was not just for aesthetic purposes, but has safety importance as well. 

Vice Mayor Amyx said he looked at three issues which were: 1) they needed to rebuild a road; 2) provide a sidewalk; and 3) protect the property owners’ on the west side.  He said Option No. 6 accomplished all of those issues.  He said Option No. 6 took care of the objectives of the entire project and he supported that option.   

Commissioner Schauner said he voted against Option 6 the last time this was discussed.  He said he still had a concern about the width of the sidewalk that would be created on the west side of the road.  One of the concerns that was expressed frequently was that it was a busy street with a lot of fast traffic.  He said the further they could put people on that sidewalk away from traffic, the safer he believed that was.  He said this was in fact a public infrastructure improvement, one that was designed for the general traveling public whether they traveled on foot, on bike, or on four wheels and he thought the greater public good was served by Option No. 5.  He suggested working with the property owners to see what sort of fence or rail they had an interest in.        

Commissioner Rundle said his basis for changing his support was stated in introducing this item.  He said he agreed with Commissioner Schauner’s comments.  He said the bicycle advisory committee looked at the sidewalk widths and they preferred a 10 foot sidewalk.  He said the bicycle advisory committee thought that an 8 foot sidewalk was a compromise that they could live with, but they were strongly urging that the Commission maximize safety.  He said for money spent, he was leaning toward getting a good sidewalk out of this project. 

Commissioner Hack said she could not add a lot to what Commissioner Amyx stated.  She said she had a sensitivity toward the lack of greenspace.  She said she supported Option No. 6 from the beginning and still felt that way.  She said it was a compromise and many decisions the City Commission made were a series of compromises.   

Mayor Highberger said with all due respect to Commissioner Amyx, he said there were extensive discussions about this matter before Commissioner Amyx was on the Commission and Option No. 5 was a compromise.  He said he deeply regretted the impact that this project would have on some individual property owners, but they as Commissioners had to weigh the public good against the impact on individuals and in this case, Option No. 5 did that the best. 

He said they absolutely needed a good walking and bicycle transportation path through that corridor and this was their only chance in this generation to do that.  He said if they were going to spend that kind of money, they needed to do it right.  He said he hated changing gears after a decision had been made, but he felt strongly that their initial decision was not the right one.  He supported Option No. 5.      

Moved by Schauner, seconded by Rundle, to direct staff to proceed with Option 5 and amend the contract with Bartlett and West as noted.  Aye:  Highberger, Rundle, and Schauner.  Nay:  Amyx and Hack.  Motion carried.                                                                                         (14)

Commissioner Rundle said a staff memo indicated that construction sequence had been settled and traffic would be carried through construction as physically practical.  He asked about that staff memo and whether there were any updates. 

Soules said they were still always conditioning it because he did not want to mislead the City Commission, but he thought they worked through that.

Caldwell said at the time Soules had written that staff memo they hadn’t gotten far enough with construction sequencing plans to know what they could do.  At this point, he was comfortable in saying that they would be able to keep a lane open in each direction throughout the project. 

Commissioner Schauner said they were also going to make sure they make it as difficult as possible for the non-residents of that neighborhood to travel through that area.

Soules said staff could do that.

Consider adopting on first reading Ordinance No. 7938, creating a City Code prohibition on the possession of marijuana.

Scott Miller, Staff Attorney, presented the staff report.  He said there was nothing new to add to the presentation.  He said Jerry Little, City Prosecutor, provided the City Commission with supplementary information regarding the treatment issue and how fines would fit within the City’s fine structure.

Mayor Highberger called for public comment.

A person from KU Student Senate said she had previously submitted a copy of the Student Senate Resolution in support of the proposed ordinance.  She said the whole reason they supported the ordinance was because making this a municipal issue would cut down on students needing to go to district court which in turn would cut down on students being denied and having their financial aid taken away.  

Laura Green, Drug Policy Forum of Kansas, said she had brought this issue to the City Commission on the 6^th day of September.  She said they undertook a study of the 50 largest cities in the State of Kansas because they thought it was important to see what other cities were doing and submitted that study for Commission consideration.  There were 29 of the 50 cities that were studied, that had the same ordinance that they had proposed.            

Mayor Highberger said it was his understanding that they basically approved the concept of this ordinance at their last meeting and the only reason this ordinance was not on the consent agenda was because they had to settle the question of whether there was a minimum fine included in the ordinance.  He said the current draft ordinance did not include a minimum fine.

Vice Mayor Amyx said he saw no reason that would make him change his mind from his earlier position for a $300 minimum fine.  He said for him to be able to support the change from taking this issue from District Court to Municipal Court, he believed it was necessary to establish a rule and the rule for him was a $300 minimum fine.

Commissioner Hack said there was conversation about placing an ordinance on the City’s books that they did not enforce as strongly as others, but she could not do that nor did she think it was important for them to monitor the arrests that pertain to the violation of this ordinance any more than they would any other ordinance.  If they were going to place an ordinance on the books, then they needed to enforce it in the manner they enforced the rest of the City’s ordinances.

She said she could not condone minimizing the possession of an illegal substance because she spent too much time talking with kids about illegal substances.  She said she believed there needed to be a minimum fine.  If there was a minimum fine of $250 for a stormwater violation, then it seemed that a $300 minimum fine for possession of an illegal drug was not out of line.  She said she did not want to step on anyone’s toes, but it was important to realize that one of the ways that students could keep their financial aid was to not use an illegal substance and find themselves in a position of having a court record.   She said she appreciated the financial implications and she wanted kids to stay in school, but she could not support the ordinance without a minimum fine.  She agreed with Vice Mayor Amyx that a $300 minimum fine was appropriate for this type of violation.      

Mayor Highberger said state law did not include a minimum fine.  The fines under District Court were left under the discretion of the judge.  He said there was far too much erosion of judicial independence in our jurisprudence over the last generation.  He would prefer leaving this matter up to the decision of a judge to apply whatever fine he felt was appropriate given the individual circumstances.  The only way he could support a minimum fine was if the fine was lowered by $50 to $100.  He said places like Topeka did not have a minimum fine and he did not think Topeka had become a hot bed of drug abuse.  Overall this was a very minor policy change and he personally did not think the minimum fine was necessary.  

Commissioner Rundle said there had been a lot of discussion about the City Commission taking a more lenient approach, but just as there was no minimum fine at the state level, the City Commission was not changing the penalties that were in place in the other jurisdictions and he thought people should get that message.  He said the fact was that so many other cities had practiced this idea of relieving the load of the District Court.   He said young people needed to make sure that they don’t do things that jeopardized their education.  He said he was not interested in having that harsh approach of cutting students off from financial aid because that had a social cost in the long run that far outweighed the cost of putting this issue through Municipal Court on a first offense.    

Commissioner Schauner said he wanted to take a slightly different approach.  The public comment he had received was there was apparently a belief that by moving this offense to the District Court they were somehow decriminalizing the activity and that was simply not true.  He said he was interested in sending a clear message to the general public that he did not detect any interest on this body to decriminalizing the possession as it was defined in the city’s ordinance or the state statute.  On the other hand, he agreed with the Mayor that he hated to get so in the way of judges doing their jobs that they really could not be a judge.  He said what he would like the Commission to consider was a $300 minimum, but give the judge the authority to depart from that minimum if the judge made certain findings in their ruling.  

Corliss said that idea could be done.  He asked if Commissioner Schauner had any suggestions about what those findings would be.

Commissioner Schauner said he would like to hear some recommendations from either the City’s Prosecutor, Jerry Little, or David Corliss, about what that departure set of guidelines might be.  He said he had two goals which were making sure the public understood that the City Commission was not trying to decriminalize or minimize the possession of marijuana, but at the same time he liked the idea of giving judges authority to deal with each defendant with regard to their peculiar circumstances.  He said he could say what those circumstances might be for departure, but he would very much like some discussion about departure criteria that the City’s municipal court judge could use.

Corliss said staff could try to come up with something now or later. He said he did not know the will of the majority of the Commission.  He said it could be something as general as if it was in the best interest of justice of the community or the best interest of the defendant or they could have something more specific.

Jerry Little, City’s Prosecuting Attorney, said it was safe to say that based upon mitigating factors the judge might impose a lesser fine than the mandatory minimum assuming they could set out what the mitigating factors might be.

Commissioner Hack asked Little to restate his opinion for the wording of the motion.

Little said suggested the wording might be, “The minimum fine shall be $300 except with the discretion of the judge the fine may be lowered based upon mitigating factors.”  He suggested that they could list mitigating factors or leave it to the discretion of the judge what the judge believed the mitigating factors would be.

Corliss said Commissioner Schauner indicated that the interests of the community and the interests of the defendant would be among those mitigating factors.  He said staff could work with that language.  He said Little made a point that they did not want to use the word “departure” because that might have a different procedural and legal connotation. 

Commissioner Schauner said he was not trying to imply that they would end up with motions for departure because that was not his point. 

Vice Mayor Amyx said his concern was placing the judge and prosecutor in a situation of needing to make that decision based on those mitigating factors of having to pick and choose who was going to receive a lesser fine.  He said he believed there should be a minimum penalty of $300. 

Commissioner Schauner said he did not think that the prosecutor would be in the position of making that decision about mitigating factors because that decision would be the judge’s and judges were in the business of making decisions about mitigation all the time.  The presumption was the minimum would be $300 absent a finding of mitigation, not that there would automatically be a lesser fine than $300.

Vice Mayor Amyx said in all types of ordinance with state recommendations through statutory authority, they had to accept the state as being the minimum and they could always come up with greater situations no matter what it was because that was their role.  He said his belief was that there should be a $300 minimum.

Commissioner Rundle said it seemed that from the last discussion, Vice Mayor Amyx was concerned about recouping costs for drug test.

Vice Mayor Amyx said yes.

Commissioner Rundle said he thought that was not a cost borne by the City.        

Little said correct.  If the drug had to be tested that was the cost that they passed on to the defendant assuming the defendant was found guilty otherwise there would not be a drug test cost.            

Commissioner Schauner said he wanted to repeat something he had said earlier.  He said he wanted the record to clearly state that his belief was that the minimum fine should be $300 unless and until the judge made a finding that there were sufficient mitigating circumstances, either community based or individual defendant based, on which the judge could reduce that fine.     

Moved by Schauner, seconded by Rundle, to place on first reading, Ordinance No. 7938, creating a City Code prohibition on the possession of marijuana and subject to a minimum fine of $300, with the discretion of the judge to reduce the minimum fine based on a finding of mitigating factors of the best interests of the community and the best interests of the defendant.    Aye:  Rundle and Schauner.  Nay: Amyx, Hack, and Highberger.  Motion failed.

Motion by Highberger, seconded by Rundle, to adopt Ordinance No. 7938, illegalizing the possession of marijuana and drug paraphernalia with no minimum fine.   Aye:  Highberger and Rundle.  Nay:  Amyx, Hack, and Schauner.  Motion failed.

Commissioner Hack said she would like to see examples of what those mitigating factors would be. 

Little said he would discuss the issue with Judge McGrath.

Moved by Hack, seconded by Schauner, to defer the first reading of Ordinance No. 7938, creating a City Code prohibition on the possession of marijuana, until the November 29^th meeting.  Motion carried unanimously.

Receive a draft Request for Proposals for Case Management Services in response to Task Force on Homeless Services recommendations.

Margene Swarts, Community Development Manager, presented the staff report.

Vice Mayor Amyx said in reading the RFP it stated that the Case Managers would be managed by one agency.

Swarts said yes.

Vice Mayor Amyx asked if that agency had been determined and how was that decided.

Swarts said that agency would be an opportunity for whoever wanted to put forth a RFP.  She said the City or Commission would determine who would manage that based on the proposal.

Vice Mayor Amyx said if an agency came forward and had need for the various case workers, they would be the employer.

Mike Wildgen, City Manager, said they would have a contract for services.     

Commissioner Rundle asked if the case workers might work in other agencies.

Swarts said correct.  She said it would be community based.

Commissioner Schauner said the case management people would be selected by the City Commission.

Swarts said correct.  It was a contract with the City. 

Mayor Highberger called for public comment.

After receiving no public comment, it was moved by Hack, seconded by Amyx, to approve the dissemination of the Request for Proposal for Case Management Services.                (16)

Conduct De novo Hearing on the following Preliminary Plat: PP-06-15-05: Preliminary Plat for Cypress Park Addition. The property is generally described as being located at 1801 Learnard Avenue.  This proposed five-lot single-family residential subdivision contains approximately 2.229 acres

Paul Patterson, Planner, presented the staff report. He said the preliminary plat was seeking to divide the property into five lots.  He said this item was heard before the Planning Commissioner on July 25^th and was denied by a 6-1 vote as indicated by the reasons in the memo and in the staff report. 

Commissioner Rundle asked if it was possible to come back with another proposal that would essentially offer this type of housing, but address the concerns that had been outlined.

Patterson said there were several ways that would be applicable to layout the subdivision in a different manner that would be in conformance with Horizon 2020 and the city’s subdivision standards.

Commissioner Rundle asked if those layouts would still offer the same amount of houses.     

Patterson said the layout staff suggested could result in nine lots but the same number could also be built.

Commissioner Hack said when looking at staff concerns, she asked what concern stood out the most.

Patterson said probably the flag lot configuration.  He said they were proposing to have shared access off the flagged lots.  The lots were sized in such a manner in that zoning district with a minimum of 7000 square feet per lot and that made it difficult for an applicant down the road to attempt to re-divide the property.  He said there would need to be some variances for accesses.  It was not a standard type of configuration that could be seen in an urban setting, but more of a rural setting that would be seen in smaller communities. 

The other item was the larger property to the west and platted and as that developed in the future you need to see how many lots could be divided off and how these could tie together to this plat and make more of a cohesive community.

The other item discussed was the close proximity to Johnson Avenue to the south and Forrest Avenue on the north was approximately 1200 feet without an east-west connection between the streets.

Vice Mayor Amyx asked if it was staff’s recommendation that a future street could tie from Learnard Avenue, back to the west to Barker Avenue to provide access for future development.

Patterson said there was that possibility because the proposed layouts could be designed in such a manner that that could allow an east-west street to be platted.

Vice Mayor Amyx asked what type of roadway would be designed at that location.

Patterson said the standard street right-of-way was 60 feet.  He said at this point there was no design.  There was nothing from the City as far as plans to have the street come forward.     

Mayor Highberger called a De novo hearing for a preliminary plat for Cypress Park Addition.

Curtis Harris, Peridian Group, representing the owner of Cypress Park Addition, said he wanted to bring attention to an important item related to the way this Preliminary Plat was denied by the Planning Commission.  City regulations stated that the Planning Department should give written notice to the sub-divider of the action of the Planning Commission.  If the Preliminary Plat had been disapproved or conditionally approved, the notice shall specifically state the ways in which the Preliminary Plat failed to conform to those regulations.  He said City Code went on to say that this must happen within 60 days.  He said on June 15^th, Steve Standing, owner of Cypress Park Addition, filed a Preliminary Plat.  On July 25^th it was heard before the Planning Commission and on July 26^th, Standing received notice of denial stating the reasons why.  There were no specific reasons given, but only that the Planning Commission was favorable to in-fill development in this area, and the Commission would like Standing to explore other possibilities that would not utilize flag lots.  He requested that the City Commission review the code and find where flag lots were not a conforming use of land.

He said in the City Code, there was a 60 day rule that stated that the Planning Commission had to tell an applicant within 60 days the reason for denial and if that was not done, it seemed reasonable to assume that the plat was approved.  The reasoning was not specific, but the code stated the reason needed to be specific.  The reason came back with the idea that the Planning Commission did not like flag lots and they were asked to take another look and come back with something else.  He said this was not an out-of-state developer coming into a neighborhood who was trying to plop something down.  This was a resident that lived in this community who was hoping to develop that piece of property in a way that the neighborhood would be extremely supportive of. 

He said the City Commission had the power to approve the preliminary plat based on the Planning Commission’s lack of ability to follow the rules.  He said the Planning Commission did send notice to Standing on August 31^st, in which his math said that was 76 days after Standing filed the preliminary plat listing some specific items.  Again, the rule stated 60 days and the Planning Commission should be aware of that and follow that and he hoped the City Commission would take that into consideration.     

Steve Standing, property owner, said in deciding how to plat that property, he wanted to do something his neighbors approved of and that he would be proud of when the project was completed.  He said he checked out the various possibilities including the removal of the existing home that he had been living in, creating a larger space perhaps to include a street.  He said he looked at that possibility and it proved to be uneconomical on a property of that size.

He said at the advice of Paul Patterson, Planner, he looked at a much higher density configuration and after doing some research he concluded that this property would not economically support the building of the street and all that went with it even with ten or more buildable lots.  Furthermore, each neighbor he discussed this issue with stated that they would accept the four larger lots as proposed, but not a high density solution.  He said therefore, he looked at a lower density configuration with four new building lots, plus the existing home near the center of the frontage on Learnard Avenue.  The property was nearly square and one challenge was to gain some utility from the rear portion of the land rather than cut long 60 foot wide and 283 foot long strips which he was led to believe, could be approved. 

He said by using the flag lot design with shared driveways, four new generously sized building lots could be created which utilized all of the space.  He said it was his understanding that flag lots were not prohibited in the current subdivision regulations.  He said his plan included a water retention pond which met the floodwater requirements.  Several existing homes in the area have houses behind them so there was not a precedent being set.  He said his plans allowed for extensive landscaping to separate the properties. 

In answer to the concern about future further division of the larger lots, a deed restriction could be added to prevent that future division of the individual lots.

He said the land at 1801 Learnard Avenue was 2.23 acres.  It was too small to carve up into many small lots and it was too big to remain unused for needed infill residential property.  The argument had been that the lots would be too large for typical RS-2 zoning of 7,000 square feet, but the 7,000 square feet was a minimum and there was no maximum.  Four other properties between 15^th Street and 19^th Street contained more than 2 acres and many others were a half acre or more in size.  He said his proposal was for an average size of 0.45 acre.  There was a wide diversity of sizes along Learnard which gave it a rural feeling.  He said his plan would help to maintain that diversity.  Therefore, he believed his proposal did satisfy residential development policy 3.3(c) which stated: “In-fill development should conform to lot size of the area in which it is proposed.”  He said it really just depended on where you look in the area.

He said in today’s newspaper there was an article about new urbanism and this property was situated such that it was in walking distance to several destinations such as a grocery store, downtown, and Kansas University.  He said it would conform in someway to those kinds of ideas that were being thought about now. 

He concluded by respectfully asking the City Commission to vote in favor of Cypress Park Addition for the reasons he stated. 

Commissioner Rundle asked if there was pedestrian access to the west.

Standing said there was no access to the west.  Barker Avenue was the next street to the west and it was really a double block and was more than 600 feet from Learnard Avenue to Barker Avenue.  New York Street was never extended beyond 15^th Street.  He said there was a unique situation where there were deep lots.  He said it seemed like there should be some way to get some use out of that space.  He said his proposal took advantage of the whole space and it did it in a responsible way.  He said many people had stated that they would prefer the rear lot for the seclusion that it might afford.  

Russell Livingston, a neighbor, spoke in support of the preliminary plat for Cypress Park Addition.  He said Learnard Avenue was a very unique situation in this community.  It was a highly prized street by all the people that live on that street for its rural feel.  Many times capital improvement projects had been brought before the City Commission to be approved for various reasons in that area and the neighbors had shown up in unanimous support against that idea because they liked the feel of their neighborhood.  He said he was present as an individual neighbor in support of Standing’s proposal to develop that property on Learnard Avenue.  The proposal before the City Commission was an example of creativity and openness in communication.  He said Standing had gone out, before he brought the idea to the City Commission, and asked his neighbors how they felt.  The net affect was that he received input from his neighbors prior to putting his design plan together and that was an important factor in deciding in favor of this development.  He said Standing surveyed the current residents in the neighborhood to express their wishes for the development in this area.  Both the neighbors and community at large had shown overwhelming support for Standing’s approach to integrate new development within an existing neighborhood. 

He said Standing was proposing to build modest homes with functionality and ease of maintenance and each on appropriate sized lots that would use energy efficient renewable resources and would include front and rear yards.  In doing so, those homes would integrate and conform to the overall density and character of the current Barker neighborhood.  The proposed development would have minimal impact on the existing resources and would not require future major infrastructure improvements.  Those homes would be barrier free by design using renewable sources such as cellulous insulation made from recycled newspaper.  Though choosing energy efficiency hot water heat source and high SEER cooling were not the normal approach to construction, those choices had merit and consideration.  Additionally, a lower density, lower development which used a common driveway would reduce the impermeable surfaces increasing greenspace and reducing run-off. 

He said Standing could build far less in terms of quality and design, but that was not Standing’s intent.  Standing’s goal was to develop high quality environmentally conscious homes that would integrate within a diverse neighborhood at a modest cost to the consumer, the Barker neighborhood, and the Lawrence community as a whole.  He respectfully asked the City Commission to vote to support this project.             

Faye Watson, Lawrence, said the previous speaker said everything she wanted to say. She said she had forwarded comments to the City Commission.  She said she wanted to make sure that the City Commission personally knew what was being proposed.  She said she visited a home that Standing was constructing at 1131 New Jersey and the home was absolutely beautiful.  It was the type of home that so many people needed, but was not available in town.  She said if the homes that Standing were proposing on Learnard Avenue were anything like that well-built home on New Jersey, they would be an asset.   

Jim Carpenter, Lawrence, said he was in support of the proposed preliminary plat.  He said he was in support of this proposal.  Although it did not exactly comply with the zoning codes and the project called for something specifically different, this was a unique part of town.  He said there were homes that range up to 110 years old in this area.  The development over the years had gone through many different styles, standards, and codes.  There was everything from very large lots such as Standing’s and Livingston’s lots and most of the lots between Forrest and Johnson Avenues bordered by Learnard and Barker Avenues were large and deep lots.  Learnard was still basically a County road with ditches.  He said the neighborhood had consistently spoken in opposition of widening that street, primarily because of the number of mature trees that would be lost.  He said they would like to see a sidewalk someday, but that was not possible unless the street was widened, therefore they would like to keep the street the way it was.  He said Standing’s proposal did a lot to preserve the feel of the Barker neighborhood specifically along Learnard and the Barker area as a more rural setting.  Although there were small city lots that meet none of the current procedures along Forest and Johnson right now.  In fact, one of the lots that backed onto Standing’s property was right now a flag lot.  On the 1800 block of Barker there was a house on Barker and there was a shared driveway to what were chicken coops at one time and were now four apartments. 

He said he had reviewed the Planning Commission meeting minutes and it seemed that a primary concern was if this project would be precedent setting. He said he did not believe it would be precedent setting if the findings were specifically narrowed as to why the City Commission would approve this project.  He said this was a very unique situation in a unique part of the town and he did not see how this would apply to very many other areas, especially if it was limited to plot size, approval by neighbors, and existing conditions in the neighborhood.  The City Commission could make their findings such that they did not set a precedent.

He said this project was preferred in their neighborhood because it did limit the number that was coming in.  He said there were those large lots that had the potential for people purchasing, razing the existing building, and coming in requesting a PRD or PUD to ask for many more houses which would aggravate the situation on this street which would force widening the street to address the traffic and those were all types of issues that the neighborhood had consistently opposed in the past.  By voting in favor of allowing this type of development, the City Commission was preserving the character and the historical values that were in the Barker neighborhood.           

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

Commissioner Schauner said there were some notes in the Planning Commission minutes about, “It was verified that the new subdivision regulations would address flag lots but no specific language was written.”  He asked if any specific language had been written since that meeting.

Linda Finger, Planning Director, said staff was working on the draft language at this time which included a definition of a flag lot. She said the definition came from another communities regulations.

Commissioner Schauner asked if it would be a permitted subdivision approach.

Finger said it would not be a permitted activity.

Commissioner Rundle said that was a concern of the League of Women Voters.  He said if those were flag lots those lots were liable to have standards and regulations.  He said in the case that Finger was talking about, would that simply not be allowed.

Finger said correct.

Commissioner Rundle said the League of Women Voters’ letter also stated that this was not good planning.    

Finger said flag lots tended to place one residence behind another and that was not considered good planning.  It could also, in a rural setting, provide much like a private road and it changed the physical appearance of a neighborhood because there were mail boxes that did not associate with a building, therefore there was no street presence.  She said staff had heard from other communities that had a proliferation of flag lots, that they were difficult for emergency services to locate.  A flag lot had an address off the street frontage.  There were several areas where it was not considered a desirable design.  She said she would not tell the City Commission that in all cases flag lots could not work, but it was not the preferred design approach for a street layout with homes behind other homes.        

Mayor Highberger said he did not understand why that idea was significantly different from rear accessory dwellings, which were permitted under the code.

Finger said because accessory dwellings actually would have a presence that they took with the large residence, they would be smaller, and limited to one individual.  It (accessory dwellings) had to do with the amount of occupancy.  The way the code was written today, was that your residence was primary and the accessory dwelling was secondary and you still had that street presence, singular access and identity.  That was a large part of where flag lots were not found to be acceptable.   

Commissioner Schauner said so the accessory dwelling was an accessory dwelling to the primary dwelling as opposed to the flag lot which was two separate distinct individually free standing homes.

Finger said correct.

Commissioner Hack asked Finger to address the issue that Harris brought up concerning the timing and lack of the information that was given. 

Finger said the 60 days was related to the Planning Commission’s action and they did receive a letter about the Planning Commission’s action, but because the Planning Commission minutes take awhile to process and review, staff did not have details that they could provide until those minutes had been approved by the Planning Commission.  She said what staff did was provide the information from staff’s notes as to the general discussion.  As the minutes were reviewed and approved by the Planning Commission, staff provided the details of what was discussed. 

Commissioner Hack asked if that process took 76 days.

Finger said Harris was counting from when it was originally submitted, not from the date that the action was taken.  She said it took a full month to get from the Planning Commission back around to another Planning Commission for those minutes to be reviewed.

Vice Mayor Amyx said when discussing good planning principles simple math told him that this property, if they were to use 7,000 square feet for residential subdivision in that area, was probably 10 or 11 parcels of property on 2.29 acres.

Finger said there was probably a total of 7 to 8 lots when eliminating street rights-of-way.

Vice Mayor Amyx said the area from 15^th and Learnard Avenue, south, was an area that worked and there were probably not “good planning principles” anywhere along that area.

Finger said she would not say that, but it probably did not conform to the current zoning regulations because they were written for a subdivision type development which encouraged sprawl.

Vice Mayor Amyx said this was a case where there was a small subdivision that probably did not conform to any of the new or old codes, but might work.

Finger said yes.  She said she thought this was the appropriate body for the project to come to.  The discretionary authority to grant something that was not outlined within the subdivision regulations was fairly limited even for the Planning Commission and certainly for staff because staff tried not to make discretionary decisions.

Vice Mayor Amyx said Planning staff had to follow what the City Commission set forth through adoption of various ordinances.  He said the Planning Commission would always make a recommendation based on the code because they could not make the type of decision the City Commission made, but if this development made sense even though it was outside the scope of the code, then the City Commission would be able to make that decision at the City Commission level.

Commissioner Schauner said one of the concerns that was raised in the Planning Commission meeting had to do with the ability to protect against additional subdivision of this ground in the future.  There was also discussion about a covenant which it was suggested by staff would not offer any real protection since the City would not be a party to that covenant. He asked if there were other ways that the City could protect future planning and land use interests that could be attached to that proposal.        

Mayor Highberger said by approving this layout it would make it very difficult to subdivide the lots.

Commissioner Schauner said he did not know if that was true, but it might be true.

Finger said by approving this layout it would make it fairly difficult to subdivide those lots in the future.  What the County Commission had done on some of their plats, where they did not want to see additional division of property, or where they did not think it was timely for additional division to occur, was to place a note on the plat and the intent of that note was that this was the development intent and the lots were not to be divided for “x” number of years.  She said she did not know the legality of that statement, but she knew that note was on several plats that were felt to be premature in the density they proposed in the rural areas.

Corliss said it was important to keep in mind it was going to be difficult for the City Commission to bind a future governing body in whether or not it could change both the subdivision regulations which the City Commission would be considering in the near future, but also change a future plat.  If there was a note on a plat and someone wanted to replat it, it might be difficult to say that the City Commission did not have that authority to change that type of condition.  He said he did not know if the City Commission could do anything that would bind a future governing body from having them replat a certain way.  Clearly, once there were structures at that location, on a plat like this, the physical reality would be difficult for it to be replatted in a certain way, but Commissioner Schauner was asking if there was a legally binding way to make sure that something did not happen in the future.  He said he was just providing the observation that the rules could change in the future and the City Commission could change its desires in the future.     

Commissioner Schauner said he noticed also in the Planning Commission minutes that there was a proposal for a homeowners association and the driveways would function as private drives and he assumed that meant those drives were not built to City standards.

Corliss said the City’s driveway standards, but not City street standards.

Commissioner Rundle said he would be happy to support this project.  He said this was truly a unique situation.  The street was not completed from 19^th to 23^rd.  In the same area in both cases between 19^th and 23^rd Streets and 19^th and 15^th Streets the streets were capped off by existing development.  The likelihood of a street ever going in that area was virtually zero.   He said a development of this character was going to be the deterrent to future redevelopment.  He said there would be a value established on this development that he thought people would want to preserve in the future.  He said he had a similar hesitation against a redevelopment of a large lot up on University Drive.  He said he was not on the Commission at the time, but one of the Commissioners at that time pointed out that in all likelihood that would be the final development.  He said he did not think there was a risk in the future of the kind of development that this neighborhood did not want to see.  He said he supported the preliminary plat, but the Commission needed to discuss conditions that were asked for by staff.        

Commissioner Hack echoed many of the things Commissioner Rundle stated.  She said she was supportive of this project.  She said she looked at how the petition read which discussed the larger lots versus the narrow strips, the shared driveways, and the created in-fill lots.  She said the issue of in-fill was always difficult.  Some of the most difficult issues that the City Commission dealt with were in-fill because they were problematic, but in-fill was great because in-fill did not put something in a new section. 

She said this was going to be a great and unique project that was going to be placed in an extremely unique neighborhood.  She commended Standing for talking with the neighbors.             

Commissioner Schauner said only time will tell whether others would use this issue as a precedent for projects that they describe as unique, one of a kind, and consistent with the neighborhood. 

He said he was troubled by one of the comments made at the Planning Commission meeting, “It was unreasonable to allow a tasteful development based on what happens in the future.”  He said that was the whole point of planning, was to try to minimize the unknown in the future and try to regularize the process so the people have an understanding about what to expect in their neighborhood. 

He said he did not think this was a bad project because it served a lot of good purposes as had been enunciated by the both the public and members of the Commission.  He said he would like the record from his point of view to reflect that the Commission did not consider this issue to be a precedent.  He said this was a unique property with a unique limitation on its use and it was based on those unique features that he would gladly support the project.  He was concerned, however, that they not look back on this particular event as one of those incremental decisions that they had been talking about as part of their new urbanism discussion.  He said he did not think this was a new urbanism project.  He said he hoped they did not start using that phrase in ways that it probably did not fit.            

He said he was also concerned that the Commission did not receive any feedback from the Fire Department about this issue.  He said he did not know if those back lots would be easy to service from a fire perspective or not. 

He said he would vote to move forward with the project and the positives outweighed possible negatives.

Vice Mayor Amyx said ever since Standing had brought him into this project it was a project that seemed to make a whole lot of sense even though it probably did not make sense to staff in their recommendation on flag lots, but here was a case were it made sense, mostly because of the neighborhood acceptance of everything that had gone on and here again, as many had said, was a direct reflection on Standing in his willingness to go out and seek input from his neighbors.  He said he was very happy to support this project and he appreciated all the work Standing had done.  He said it sounded as though the City Commission was going to approve the preliminary plat and that the City Commission must come up with conditions for seeking concurrence from the Planning Commission.  He asked Finger to define that statement.

Finger said the way the code was written on a de novo hearing, was that the City Commission would be returning this issue to the Planning Commission, giving the Planning Commission the opportunity to look at this issue from the City Commission’s perspective and concur.  She said that was not a requirement to make the City Commission’s decision final.     

Vice Mayor Amyx asked if there was any possibility that this could come back with a recommendation to deny a final plat.

Finger said if the final plat was submitted significantly consistent the City Commission approved preliminary plat, then the subdivision regulations gave very little flexibility to change.  The Planning Commission did not have latitude to deny the final plat.  She said it might be a tight vote from the ten members of the Planning Commission, but it should come forward to the City Commission in one form or another with conditions.  She said staff would make sure they would contact the fire department to get a specific recommendation and she did not know why the fire department did not comment on this preliminary plat.  She said staff would work with the applicant to make sure that it complied with the rules and regulations.  The City Commission should see this plat back for acceptance of easements and rights-of-way within 45 days after it was submitted for review and approval.         

Vice Mayor Amyx asked if staff would be able to get findings from the comments that were made or did the findings need to be specific.

Corliss said the code indicated that the City Commission needed to state its decision and the reasons therefore in writing and submit the decision and plat to the Planning Commission seeking concurrence.  He said he did not know if the minutes of the meeting would be sufficient or not.    

Finger said the Planning Commission would meet two times next week on November 14^th and 16^th.  If the City Commission wanted to take a look at the City Commission minutes and then approve them on November 15^th, staff could take the findings to the Planning Commission on November 16^th.  

Mayor Highberger said he was generally supportive of in-fill and density, but he certainly thought that in-fill had to be done to preserve the character to existing neighborhood and this proposal did that.  He said he was more than a little reluctant to overturn the Planning Commission and a staff recommendation, but he certainly did not think this should be a model for new development.  Given the existing conditions, it was a fairly good approach to this situation. 

Commissioner Rundle said if they did have a street through where it would have originally been platted, they would have two rows of houses and he thought that was part of the justification for the Planning Commission.  He said staff asked for an agreement not-to-protest a benefit district for improvement to Learnard Avenue. 

Finger said an agreement not-to-protest a benefit district was a standard condition.  She said the neighborhood was consistently not happy with that alternative.  She said the City Commission could not add that as a condition if they desired.

Commissioner Rundle said he wanted to reinforce as one of the findings that this was not precedent setting because of the identification by the neighborhood of other cases.  He said he also wanted to add encouragement, even though the City was not a party to the covenants because Standing was willing to establish a covenant on not dividing the lots in the future and he would not want to discourage that thinking.  He said the neighbors valued the character of the neighborhood and they would be vigilant and seek to enforce those covenants against dividing lots. 

He said he also would encourage Standing to see if there was any way to find a pedestrian access to Barker Avenue because it would be a valuable amenity for people from Learnard to be able to get to Barker Avenue.  He said he did not know if that idea was feasible, but it would be nice for Standing to look into that idea.            

Moved by Amyx, seconded by Hack, to approve the preliminary plat (PP-06-15-05) for Cypress Park Addition, (the property is generally described as being located at 1801 Learnard Avenue), subject to the findings that will be approved next week, and to refer to the Planning Commission for concurrence. Motion carried unanimously.                                         (17)

Consider motion to recess into executive session for the purpose of discussion of personnel matters of non-elected personnel.  The justification for the executive session is to keep personnel matters confidential. The regular meeting will resume in the City Commission meeting room in 30 minutes.

Moved by Schauner, seconded by Amyx, to recess into executive session at 8:55 for 30 minutes.  Motion carried unanimously.                                                                            (18)

The Commission returned from executive session at 9:25 p.m.

Moved by Amyx, seconded by Schauner, to adjourn at 9:30 p.m. Motion carried unanimously.                                                                                                                               

APPROVED:

_____________________________

Dennis Highberger, Mayor

ATTEST:

___________________________________                                                                        

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF NOVEMBER 8, 2005

1. Contract – Remove lime from lime storage lagoon to Nutri-ject Systems, for $49.34 per dry ton.

2. Service & Engineering Contract – 2003 Wastewater Master Plan, Black & Veatch.

3. Bid – Plastic Manhole Replacement Project for Utilities to McLouth Excavating for $146,000.

4. Site Plan – (SP-09-74-05) Lake Pointe Villas, 2221 Lake Pointe Dr.

5. Final Plat – (PF-08-28-05) Stoneridge E, 14.716 acres, SE corner of W 6^th & Stoneridge.

6. Final Plat – (PF-08-26-05) Green Tree Sub No. 2, 13.048 acres, NE corner of George Williams Way & Harvard.

7. Final Plat –  (PF-08-27-05) Fall Creek Farms 12^th Plat, 16.09 acres, W of Kasold & S of Peterson.

8. Final Plat – (PF-09-34-05) Westwood Hills, .416 acres, 5208 & 5204 Brown Ln.

9. Mortgage Release – 422 Mississippi, Shari Bradt.

10. Memo of Understanding – Safe Winter Walkway Program.

11. Ordinance No. 7942 – 1^st Read, HOP bldg permit moratorium, Feb 1, 2006.

12. City Manager’s report.

13. Vacation Order – Deerfield Woods Sub No. 8.

14. Reconstruction Options – Kasold between Bob Billings & Clinton Pkwy.

15. Ordinance No. 7938 – 1^st Read, prohibition on the possession of marijuana.

16. RFP – Case Mgmt Svcs, Task Force on Homeless Services.

17. Prelim Plat – public hearing De novo, Cypress Park Addition.  (denied)

18. Executive Session.