November 18, 2003

 

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 Dunfield presiding and members Hack, Highberger, Rundle, and Schauner present.  Lawrence High School representative Jacob Gage was present.   

With Commission approval Mayor Dunfield proclaimed November 17 – 21, 2003 as “U.S. International Education Week”; and November 19, 2003 as “Geographical Informational Systems Day.“  

CONSENT AGENDA        

            As part of the consent agenda, it was moved by Highberger, seconded by Rundle,  toapprove the Board of Electrical Examiners and Appeals meeting minutes of October 1, 2003; the Grant Review Board meeting minutes of September 8, 2003; the Neighborhood Resources Advisory Committee meeting minutes of October 9, 2003; the Public Incentive Review Committee meeting minutes of October 30, 2003; the Public Library Board meeting minutes of October 20, 2003; and the Parks and Recreation Advisory Board meeting minutes of October 14, 2003.  Motion carried unanimously.

            As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to approve claims to 378 vendors in the amount of $2,234,268.01            and payroll from November 2, 2003 to November 15, 2003 in the amount off $1,324,726.80.  Motion carried unanimously.

As part of the consent agenda, it was moved by Highberger, seconded by Rundle,  to approve the Drinking Establishment License for the Granada, 1020 Massachusetts; Uno Chicago Grill, 3333 Iowa Street; and  Fatso’s, 1016 Massachusetts Street (Contingent Upon State License). Motion carried unanimously.

As part of the consent agenda, it was moved by Highberger, seconded by Rundle,  to concur with the recommendation of the Mayor and appoint Travis Atwood to the Airport Advisory Board, to a term which will expire May 31, 2006; appoint Patrick Shepard to the Board of  Electrical Examiners, to a term which will expire March 31, 2006; appoint Derek Felch to the Convention and Visitors Bureau Advisory Board, to a term which will expire July 1, 2006; appoint Barbara Betrand to the Lawrence-Douglas County Advocacy Council on Aging, to a term which will expire December 13, 2004; reappoint Shon Qualseth to the Community Development Grant Review Board, to an additional term that will expire December 31, 2006; and reappoint Alan Bowes to the Housing Trust Fund, to an additional term that will expire December 31, 2006.  Motion carried unanimously.

The City Commission reviewed the bids for one backup tape autoloader for the Information Systems Department.  The bids were:

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to award the bid to Tallgrass Technologies in the amount of $58,593.55 because the low bid from AOS did not meet specifications, they did not bid the required redundant power supply.  Motion carried unanimously.                                                                                                                             (1)

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to award Phase 2 of Police Investigations and Training Center mechanical renovations to Huxtable L.T. Services, Inc., in the amount of $58,890.  Motion carried unanimously.                                   (2) 

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to award mechanical renovations to the City Hall server room to Huxtable L.T. Services, Inc., in the amount of $24,900.  Motion carried unanimously.                                                                                   (3) 

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to approve the purchase of forensic video analysis system equipment in the amount of $12,553.75 to match federal funds to Byrne Grant, in the amount of $37,659.75.  Motion carried unanimously.                                                                                                                                 (4)

 As part of the consent agenda, it was moved by Highberger, seconded by Rundle,  to authorize the City Manager to execute a contract with LHW Architects for the 2003/2004 Kaw Water Plant Workspace Improvement Project, in the amount of $26,775.  Motion carried unanimously.                                                                                                                                  (5)

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to approve the payment to Heart of American Teen Challenge, in the amount of $15,000 for the acquisition of various property interests for the improvement of O’Connell Road.  Motion carried unanimously.                                                                                                                                  (6)

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to set a bid opening date of December 9, 2003, for the Comprehensive Rehabilitation Loan Program for: 1649 Edge Hill Road, 1235 Kentucky Street, and 1345 New Jersey Street.  Motion carried unanimously.                                                                                                                     (7)  

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to set a bid opening date of December 9, 2003, for 21^st Street, Kentucky Street to Baker Court, Phase 2 (19^th Street and Learnard Avenue) box culvert improvements.  Motion carried unanimously.                                                                                                                                  (8)

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to set a bid opening date of December 16, 2003, for 13^th Street and Oregon Street stormwater improvements.  Motion carried unanimously.                                                                     (9)

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to set a bid opening date of December 9, 2003, for the improvements to Fire Station No. 3, 3708 West 6^th Street.  Motion carried unanimously.                                                                    (10)

As part of the consent agenda, it was moved by Highberger, seconded by Rundle,  to place on first reading Ordinance No. 7725, establishing “no parking”, Monday-Friday, 8 a.m. to 5 p.m., along the north side of 7^th Street between Comet Lane and Monterey Way and “no parking” along the north side of Quail Crest Place.  Motion carried unanimously.                    (11) 

As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to place on first reading Ordinance No. 7726, establishing a new bus zone along the north side of 15^th Street, from 330 feet west of Naismith Drive, west 35 feet, and removing existing Bus Loading Zone along the north side of 15^th Street from a point 294 feet west of the west curb line of Naismith Drive to a point 329 feet west of said curb line.  Motion carried unanimously.        (12)

Ordinance No. 7595, authorizing the codification of the general ordinances of the City, was read a second time.  As part of the consent agenda, it was moved by Highberger, seconded by Rundle, to adopt the ordinance.  Aye:  Dunfield, Hack, Highberger, Rundle, and Schauner.   Nay: None.  Motion carried unanimously.                                                                (13)

 As part of the consent agenda, it was moved by Highberger, seconded by Rundle,  to adopt Resolution No. 6510 and Resolution No. 6511, authorizing affiliation with KPERS for optional group term life insurance for the City’s KPERS and KP&F eligible employees, respectively.  Motion carried unanimously.                                                                                (14)               Commissioner Rundle pulled from the consent agenda, the Drinking Establishment License approval for Its Brothers Bar and Grill for separate discussion.

Frank Reeb, Administrative Services Director, said when the Drinking Establishment License approval for the City Commission’s agenda came out last week, coincidentally the City Clerk’s Office received a letter from a business owner along the 1100 Block of Massachusetts.  He said in that letter there were concerns expressed about trash, broken windows, and other issues.  He since had communication with that individual and that individual requested that this item be pulled.  Since that communication, he talked to Marc Fortney, owner of Its Brothers Bar & Grill, who was currently in the audience.  He said there had been some meetings with the bar owner and business owners, along the 1100 Block of Massachusetts, regarding those issues and it appeared that the owners of that bar were willing to address any issues that came about as a result of the location of their bar.       

Leroy Young, Kwality Comics,1100 Massachusetts, said he received a letter from Its Brothers lawyer which the content, intent, and timing seemed to be not apropos, but he suspected that most of this issue could have been avoided both with expense and otherwise if there had been open communications. 

He had presented his letter to the Commission concerning this matter.  The original letter was done considerably before the cover letter that was added to that letter.  The initial complaints involved trash, urination, sexual activity, and damage to property.  He had discussion with Fortney concerning that matter and Fortney paid for the damage to his window at that time.  He said Fortney had said that he wanted to make an obvious effort to try to do what was right because he wanted to be a good neighbor.   He said no one in the 1100 Block wanted to see anyone put out of business.  He said perhaps Fortney perceived that issue as a direct attack of their company, but in reality all those businesses were doing was looking out for their own investment as well.  He said everyone he knew in that area had been pleased with It’s Brothers efforts in addressing those issues. 

He said the biggest concern the businesses in that area had was, “what would happen when the crowd came back.”  He said they realized that Its Brothers was damaged about as bad as anyone in that area with the shooting incident in the 1100 block of Massachusetts.

Young said staff from Its Brothers had come down to wash windows for the businesses on the 1100 Block of Massachusetts.  He said they had been going above and beyond the call of duty as far as cleanup and for a while, when the crowds were gathering on the busy nights, Its Brothers had staff out there with the crowd until they were really busy and then staff disappeared.  He said there was originally discussion about the possibility of them hiring a security staff or off-duty police officer to help crowd control on busy nights.  Unfortunately, he had not heard anything back on that issue. 

He said what he thought most of the other people were interested in was not damaging their business because they had suffered already, but they would like to see some restrictions that might force crowd control once the crowds come back.  He said their intent was not to damage Its Brothers, even though they might have perceived that as a lashing out, but to protect their investment in their businesses.                

 Marc Fortney, It’s Brothers Bar & Grill, said the first time he saw the letter dated, August 28, 2003, was yesterday. He said Young dropped off a bill to the manager of Its Brothers for a glass window.  He said the next time he was in town he took care of that bill immediately and had discussions with Young about the concerns of the neighborhood businesses in that area.  Fortney said they had made serious adjustments in that he replaced the manager with a seasoned veteran from one of their Wisconsin locations that had been employed by him for five years.

The second issue they addressed was immediate neighbor relation problems in making sure they were being good neighbors in which they opened the dialogue in communication with all of their neighbors.  At that time they implemented a policy in which they would speak to all of their neighbors on Mondays and Tuesdays. 

He had policies with the previous general manager, who was based in Lawrence, in which staff was required to clean up the entire block at the end of the night.  Not just in front of their store front, but around the entire block and established a nightly sweeping and cleaning routine.  They also hired a local professional cleaning crew to take care of the windows once a month.

He also individually spoke to the neighbors and told them, whether it was his crowd or not his crowd, he would not argue the point.  He said there were seven drinking establishments within a half of block of his establishment along with a campus behind him.  He said for any reason those businesses on his block had any type of vandalism, such as a broken window, they would pay for that damage.  He said they had made a substantial investment in their business and had a 25 year long lease.

Fortney said he was disappointed in receiving the letter that was most recently issued to the Commission because that was the first indication that they had any issues prior to his conversations in August.   He reiterated that they wanted to be good neighbors.

Commissioner Highberger asked if the Commission had the option of placing additional restrictions on a drinking establishment license.

Dave Corliss, Assistant City Manager/Legal Services Director, said yes.  He said staff would need to give appropriate notice to the licensee for a hearing. 

Commissioner Schauner said it was his assumption that there was the same food/alcohol relationship required to maintain that license.

Reeb said there was no food sales requirement for that location.  He said they were in the C-3 zoning area that required 55% food sales.  However, Tin Pan Alley was a drinking establishment at the time that this food sales ordinance came into effect and therefore, they were grandfathered out of that food sales requirement. 

Commissioner Schauner asked if they had the authority to impose a food percentage requirement as a condition of reissuing that license.

Corliss said the food sales requirement was a zoning code requirement and there would be some difficulty in imposing that on a property that was a legal non-conforming use and essentially taking that legal right away from them.  He said they might have difficulty in imposing that requirement.  He said if the Commission was going to impose any condition of a particular establishment, they obviously needed to follow the legal aspect of treating similar situations the same.  He said they had dealt with that code requirement in the past.  One of the challenges to the Commission’s authority of imposing an additional restriction, was how would they be dissimilar from other establishments in the community.

Commissioner Schauner asked what additional requirements could be required of that licensee.

Corliss said when staff had dealt with that issue in the past in regards to other establishments, in the past, was litter pick up and control, private security, and other issues.

Commissioner Schauner asked if there was specific information, putting aside the shooting incident that took place at that location, on the history of police calls to that location as compared with other drinking establishments in the general proximity.

Corliss said he was not aware of any report that had provided that analysis.

Vice Mayor Rundle asked about the legal non-conforming uses and what happened when that use went away.

Corliss said in the zoning code, if there was a discontinuance of the use for 6 consecutive months then the legal non-conforming use status was determined to be abandoned.  He said he believed that it was Reeb’s review of the licenses since Tin Pan Alley that there had not been a license gap any greater than 6 months.                     

Reeb said correct.  He said the longest gap had been approximately 60 days, at least from license to license.

Commissioner Schauner asked if it was the license gap that was critical as opposed to operational gap.

Corliss said it was the “use.”   He said there was a question of whether the “use” was discontinued for 6 consecutive months.  There was also an issue of the ability to monitor that “use.”  He said there were certain legal requirements for an establishment to get a license.

Mayor Dunfield said the Commission had not heard anyone asking to change the fundamental nature of that business.  He said there were some concerns that had been addressed in the past and there were concerns about possible problems in the future.  He said Commissioner Highberger’s question about whether the Commission could impose regulations at any time during the process, after the license was granted, was relevant.  The reasonable course of action was to encourage the owners of Its Brothers to continue to work with their neighbors and communicate as well as possible.  He said he was urging the neighbors to let the City Commission know if there were problems that arise in the future so they could take appropriate measures to deal with them.  At this point, he did not see an argument for not granting the drinking establishment license.       

Hack concurred with the Mayor. She said she was encouraged by the actions of the owner and it all boiled down to communication.

Commissioner Schauner asked Young, other than the issues that he heard from the business owners, were there other concerns that had not been addressed.

Younger said no.  He reiterated that no one on that block was interested in putting that establishment out of business.  In fact, those businesses had been happy with the trash pick up and policing of the area.  He said the only concern was what would happen when the crowds came back.  He said those businesses were interested in track record and not a few weeks or months of effort.      

Vice Mayor Rundle said he appreciated all the efforts made by the owners of Its Brothers and he hoped they would continue to satisfy Young.     

Moved by Rundle, seconded by Schauner, to approve the drinking establishment license for Its Brothers Bar & Grill. Motion carried unanimously.                                            (15)

CITY MANAGER’S REPORT

During the City Manager’s report, Mike Wildgen said there was an excellent increase in ridership for the “T”, which had nearly 30,000 riders last month.  He said MV Transportation and the Employee Union had reached an agreement and had both approved a new contract.   

Commissioner Schauner asked about the length of the agreement with the “T.”

Wildgen said he did not know, but he would inform Commissioner Schauner as soon as he found out.

Also, during the City Manager’s Report, Commissioner Highberger reported that there was an ad hoc committee that was being formed to study the proposed bike helmet ordinance.             

     (16)

Consider adoption on second and final reading of Ordinance No. 7724, amending Horizon 2020 to update Economic Development Element (CPA-2003-4).  Adopted on first reading on November 11, 2003.  Commissioner Rundle indicated that additional Commission discussion of this item would be appropriate on consideration of second reading.

           

Vice Mayor Rundle suggested a minor change that was suggested at the Planning Commission level and discussed at the Economic Development Advisory Board meeting.  The suggestion was to put under priority 7.1 which was to continue the role of Douglas County Economic Development Board clarifying statement to communicate that economic development was a partnership between the City/County and Chamber of Commerce.  Often times, people thought it was just the Chamber.  He said one member of the Economic Development Advisory Board thought it was a good educational tool to inform citizens of the partnership.     

Linda Finger, Planner, said as long as the Commission was making a minor revision, she wanted to point out that staff was aware of some minor wording revisions that the County Commission had requested.  She said the change was on Policy 6, priority 6.1, second paragraph.  She said the only addition was the words “and its communities” to replace those two phases, “the communities of” and “within those communities”

Moved by Rundle, seconded by Hack, to adopt Ordinance No. 7724, amending Horizon 2020 to update Economic Development Element (CPA-2003-4).  Motion carried unanimously.                                                                                                                                (17)

Consider adopting findings of fact, approving rezoning requests, and authorizing the drafting of ordinances for placement on a future agenda:

 

Sandra Day, Planner, presented the staff report on the rezoning requests for property that is generally located south of West 6^th Street between K-10 Highway.  She said those requests originally came to the Commission a year ago and at that time the City Commission directed staff to go back and look at the entire intersection to include all 4 corners in its evaluation for land use considerations and recommendations.  She said as a current Planner, she appreciated that process greatly because it allowed the opportunity to have other staff members to look at that area and validate the work she had done approximately one year ago to see if it was still appropriate in its recommendations.  The nodal plan was considered by the Commission last week. 

The request included a single-family zoning district on the southern portion of the properties which was 6^th Street along the northern side and George Williams Way extended up to the eastern leg of this property.  Included in that request were single-family, RM-1 which was a multi-family district, residential office district, RM-2 which was another multi-family district, and then the frontage along West 6^th Street was proposed for PCD-2 or planned commercial development.   

She said when staff looked at those request, they also had a preliminary plat that was looked at for the entire property which laid out the individual lots, street and road configurations, as well as some of the easements in limitation of that property.  She said they were able to look at that property in the context of its various pieces as well as its relationship to the adjacent properties. Staff also knew that they could easily extend municipal services to cover this property.  She said this was a compellation that accompanied the request that was provided by the applicant that showed the different pieces and the street configuration which was the RM-1, RO, RM-2, and PCD requests. 

The recommendations forwarded to the City Commission from the Planning Commissioner were all affirmative recommendations for approval.  There were unanimous recommendations for the residential and residential office pieces and a split vote on the planned commercial piece.  That went back to the fact that the applicant only provided a preliminary plat and not a preliminary development plan.  Staff’s recommendations for approval of those properties was specific to require approval of a final plat to be recorded, prior to publication of the zoning which allowed staff to make sure all of the boundaries match up and to make sure all of those lot configurations were appropriate to what the zoning request was. 

The PCD portion which came to the City Commission with a split vote for recommendation was conditioned on provision and approval of a preliminary development plan which would go back to the City Commission as well as a final plat.  There were lots of conversations with the applicant about access, obviously direct access to 6^th Street was prohibited and certainly access to George Williams Way would also be substantially limited through that platting process.                        

Highberger asked how many tracts the Commission was being asked to approve.

Day said there should be five tracts.  She said it appeared that the RS-2 request which was the southern most part was missing.

Commissioner Schauner asked if the Commission was being asked to review that fifth item as well.

Wildgen said it was not on the agenda and would need to come back to the City Commission.

The City Commission acknowledged that a fifth rezoning request had inadvertently been left off of the agenda.    

Day said the preliminary plat was something that the Commission has not seen and typically it would not come before the City Commission.  She said the Commission would see it as a final plat when the applicant gets through that part of the process and that would establish a series of streets.  She said the street configuration changed slightly to the interior in that configuration.  There was a major utility easement bisecting that commercial piece and there would be a lot of drainage easement dedications as they see that property platted.  

Commissioner Schauner asked, to the west of what was proposed to be RS zoning, if there was outlet to the west from that developed area.

Day said that was the SLT and there would be no connection of that property back to the SLT.  Ultimately, they would need to look at providing access back through that development in appropriate locations.  She said it would ultimately have access back to the south toward 15^th Street.  Staff did not have plats on those properties so staff looked at those properties conceptually.  She said those were certainly elements staff was aware of and they had been making sure as the properties were developed that they had adequate opportunities to provide street and specific pedestrian connections.        

Commissioner Schauner asked if there had been a zoning request for that property.

Day said the Planning Commission initiated a change in zoning for that property. Staff did not do as good as job as they should have in terms of contacting that property owner proactively so that initial conversation was somewhat stressed.  A lot of that activity was deferred when the action was postponed and they pursued the nodal plan.  She said staff thought it was appropriate to initiate zoning so that they did not end up with a mismatch based on what actions the City Commission took on that property.

Commissioner Schauner asked if there was a proposed zoning change.

Day said staff recommended single-family zoning.

Commissioner Hack asked if the Diamond Head Development area map included the entire area.

Day said yes.  That was the map that staff used to talk about how that property related to the overall area and to look at how they might extend streets. 

Commissioner Hack asked if the diagram for road connections to the west of that property were thoughts about how to connect those roads.

Day said yes.

Commissioner Hack asked if there were 3 access points to George Williams Way, no access to 6^th Street and no access to Harvard Road except at the intersection of Harvard.          

Commissioner Schauner asked if the County had acted upon the nodal plan for that intersection.

Day said it was her understanding that the County had not acted on the nodal plan. 

Finger said that issue was on the County Commission’s agenda on Monday and no action was taken other than to receive the document they had.   They did not accept to take an affirmative action because they wanted to discuss several different items.  She said the County Commission had requested a joint meeting between the City and County to talk about several different issues and that was one of the issues they had questions about. 

Commissioner Schauner asked if commercial allocation at that intersection was one of the issues.

Finger said that issue came up in their discussions.  She said the County Commission was interested why there wasn’t any on the incorporated portions.  She said their interest was not within the City, but within the western two quadrants of the nodal area.   

Commissioner Schauner said the nodal plan restricted commercial space development on all four corners, at least, conceptually.   

Finger said the nodal plan restricted commercial development at that node to two corners on the east side.

Commissioner Schauner asked if that would ultimately prove to be achievable or not since the City did not have any kind of County buy in to that concept.    

Finger said the only thing staff new, at this point, was that for it to be developed within the City or incorporated boundaries it would be restricted to those two corners.

Commissioner Schauner asked “if” and “when” the west side of that intersection was annexed, the City would be faced with property owners having an interest in the highest and best use for their ground.

Finger said once the property was annexed, the property would come under the adopted plan that the Commission adopted last week.  The expectation hopefully would not be different once the two bodies meet and discuss that issue.  The other complication for the County Commission was that they had not received a presentation or discussed the commercial chapter and the reason for that was because they were trying to take one item at a time, rather than too many different items.  She said the County was dealing with the urban growth boundary which they hoped to finalize tomorrow. 

Mayor Dunfield called for public comment.      

Vernon Jarboe, Attorney, spoke on behalf of the applicant Diamond Head LP.   This was one of those rare opportunities where there was approximately 100 acres of land that a single developer had put together a comprehensive concept.  The concept of the nodal plan in waiting for the development of the nodal plan actually came about when their project came before the Commission the first time.  He said this project had been tabled waiting on the nodal plan and its development.   He said they saw that development as a model community that was initiated about 3 years ago by Diamondhead when they first starting working on development concepts and did involve elements of office, multi-family, single-family, and commercial development.  Both the staff and the Planning Commission had reviewed the plan in multiple phases because they had the preliminary plat, they had been through the zoning process with the Planning Commission and back through the Planning Commission with the nodal plan.     

He said as staff pointed out, the Commission needed to think about the fact that before the PCD development actually occurred there would need to be a preliminary and final plan with actual uses shown.  Even though the plan had already been reviewed, it would be subject to Commission review in the future.

He said another important element was that particular piece of property that was annexed into the City was included in a sewer benefit district.  The owner had a year or two to pay off those sewer benefit costs to bring sewers into the vicinity of those properties.  He said unlike some of the other properties on the west side of the SLT that property had public utilities already. 

In addition, George Williams Way on the east side of their property and City staff was interested that area extended north to 6^th Street so that it was ready to go when 6^th Street was finally finished.   The developer was willing to dedicate the right-of-way as a part of that plat and the preliminary plat had already been submitted and approved.  He said they would like to see the actual street plans so they would know how it affected the property, but conceptually they were in agreement with the 4 points of access that staff discussed.  He said they also agreed to comply with the other suggestions that came about as a part of that preliminary plat in terms of staff’s requirements.

He said another important issue was that this plan had found to be in general conformity with Horizon 2020 and the nodal plan so that they were not proposing something that was different.  The project was supported by the Planning Commission in each of those 5 rezoning request.  He said they thought the reason for that support was because they had incorporated the buffering concepts and transitional uses.  He asked the Commission for their support on those proposed rezoning request.

Commissioner Highberger asked about the PCD.  He asked about the approximate retail square footage projected for that area.

Jarboe said the amount of square footage would be hard to tell at this time.  He said it would depend on the users.  He said the zoning request was for approximately 32 acres, but when backing out all of the areas that could not be used, there were only 20 or 21 acres left.

Commissioner Highberger applauded staff and Diamond Head LP for their efforts. He said they had taken steps toward working with issues such as pedestrian, connectivity, integration with surrounding areas that had not been platted yet. 

He said his only concern was with the PCD because he wanted a better idea of the specific uses.

Commissioner Rundle asked about Policy 1.7 in Horizon 2020 that asked for some assessment of commercial rezoning against existing rezoning.   He asked if the Commission gave a consensus on still wanting that policy in the Commercial Chapter.

Finger said the tool for assessing market evaluation was in the document that the City Commission approved for Chapter 6.  She said there was a matrix and method proposed.  Staff had not carried that on since that document had not been adopted and published.

Commissioner Rundle asked if the City Commission would need to give staff instruction or approve that method.

Finger said when that was adopted and published then that matrix was what staff would use, unless the City Commission wanted staff to use something else.  That language that said they should use a marketing tool, was still in Horizon 2020, Chapter 6, but the actual tool that staff would use was also provided in the revisions to Chapter 6 and that was what staff anticipated in using.

Mayor Dunfield asked if Chapter 6 had been through the final adoption, would that Chapter had feed into that rezoning application.

Finger said Chapter 6 had gone through public hearings and reviews.  If Chapter 6 was in place, prior to this request, then staff would have done what they could, but they did not have square footage.  She said when the Commission would see those proposed codes, they would see reconnection of the zoning with the development plans for commercial area.

Mayor Dunfield asked in the proposed chapter, did the market analysis come into play at the stage of zoning or after the zoning.

Finger said after the zoning because they would not have square footages until they had a site plan or development plan.

Commissioner Hack said that would become a check on the rezoning requests.  She said it could be rezoned, but then the check like the use of square footage for commercial property then the Commission would have the opportunity to look at that at a later date.

Finger said correct.  She said staff could do the overview approach which looked at the acreage when the rezoning request came in, but then there would be an additional review.

Commissioner Hack asked what happened when there was a square footage proposal.

Finger said there would be two views, a broad view and a more specific view.        

Commissioner Schauner asked to what extent were they limited in their second look after it had been zoned commercial or PCD.

Finger said based on Chapter 6, as drafted and adopted by the City Commission, there would still be a comprehensive plan. 

Finger suggested having more discussions about that marketing tool.      

Commissioner Schauner echoed Commissioner Highberger’s statements.   He said he did not have any particular issue with any of those rezoning requests, but he had a concern about the commercial rezoning.  He said that node was likely to be the largest single development, both commercial and otherwise that would be seen in the City for quite some time and a very large community center.  He would rather the Commission take that commercial piece slowly so that the Commission understood exactly what they were doing and they would not end up trying to retrofit or to satisfy a lot of competing interests down the road.  He would like the Commission to get this issue right this time rather than later.

Commissioner Rundle concurred and said especially if the County wanted to discuss the allocation of commercial to that intersection.  If the City Commission changed what they had sent to the County, it might not fit that nodal plan. 

Finger asked if there was a general concern about acreage itself because she wanted to know if any of those other items could move ahead.

Commissioner Hack commented on that commercial piece.  She said the City Commission had asked the applicant for a mini-comprehensive plan of that area.  She said it seemed that there were transitional areas and buffers and the thing that was always of a concern was commercial area backing up to a neighborhood.  She said when those things were put into place from the beginning, then those people who were going to buy property in that area had a clear understanding of what was going to be there.  She thought Diamond Head had done everything that the Commission had asked them to do and it was a good plan.

Commissioner Dunfield said he agreed with Commissioner Hack that having the comprehensive view of that node was not what the Commission asked for.  He said he did not have any desire to delay those rezoning requests, but the fact was they did not have an adopted commercial chapter of Horizon 2020, at least not one that this Commission had agreed with.  The County Commission had not agreed to the nodal plan the City Commission did not know what kind of changes they might be suggesting when they get together do discuss that issue. 

Although he thought that those rezoning request, including the PCD, should be approved, he did not think he was ready to approve that portion tonight. 

Jarboe said they could not stand for those rezoning request to be considered not as a whole because it was all interrelated.  He said they had done everything the City Commission had asked them to do.   He asked that the Commission approve the other rezoning requests, but he did understand that the single-family would need to be addressed later and he was not concerned about that.  He said those rezoning requests needed to be considered all together because those rezonings had tremendous effect on one another. He hoped the Commission would consider those rezonings tonight because they had done a lot of hard work to get those issues to the City Commission. The nodal plan was carefully thought out and everyone had said they were in conformity with the nodal plan and Horizon 2020.  He said they did not want to consider this issue piecemeal, but they hoped the Commission would consider it favorably.     

Vice Mayor Rundle asked Finger what the County was talking about in terms of the allocation of commercial space.

Finger said the County Commission’s concern was of not being part of the process and the development of the plan.  The First United Methodist Church made a presentation on their quadrant and talked about potential uses and they had not gotten a clear indication from the City Commission what they could or couldn’t do.  The County Commission operated in a different forum.  She said the County Commission wanted a lot of interaction between all property owners, particularly those within the unincorporated area about the nodal plan.   The County Commission also had a concern that since this was such a large node, why was the commercial only on the City’s portion of the plan.   

Commissioner Schauner said he recognized that the developer/landowner had spent a lot of time, energy, and money on this issue, but on the other hand this was not unlike a business transaction between those representing the public’s business and interest in this issue.  He said the Commission owed it to the citizens of Lawrence to not look at those 100 acres as if it was the “be all” and “end all” for that node.  There were 3 other corners and a lot of other property owners who would have an equal interest in maximizing their property’s value.  To the extent that the PCD portion of that had an impact on those corners being incorporated or unincorporated ground, it was worth not acting on this issue at this time.  He said the landowner preferred that the City Commission act on this issue as a unit so he preferred to defer the issue.

Vice Mayor Rundle said the nodal plan that the City Commission sent favored that project in that there wasn’t commercial on the other intersections.  If the County wanted to reallocate that acreage, it could reduce the acreage on the corner and it was the City Commission’s job to convince the County that they had a sound basis for making that recommendation. 

Mayor Dunfield said when this item was placed on the City Commission’s agenda this week, the assumption was that there would be an approved nodal plan and that the Commission would be following that plan in the actions of the proposed rezoning requests.  He agreed with Commissioner Schauner in that this issue should be deferred until that nodal plan was finalized so that the Commission would know if they were talking about commercial on only the east or whether they would be distributing that acreage in some other fashion.   

Commissioner Hack asked Finger about a timetable for this nodal plan.  She said the City Commission was placing undo hardship on the developer/property owner.   

Mike Wildgen, City Manager, said that Craig Weinaug, County Administrator, said they would like to have a study session with the Commission soon. 

Mayor Dunfield said they did not want to delay this issue indefinitely and again the assumption was that the City Commission would have had that nodal plan in place, but they didn’t.  He said the Commission would set a study session date as soon as they could, to try and get that resolved. 

Moved by Rundle, seconded by Schauner, to table the rezoning requests south of west 6^th Street, until after the study session with the County Commission.  Motion carried unanimously.                                                                                                                                (18)

Consider performance agreement with Prosoco concerning tax abatement.

David Corliss, Assistant City Manager/Legal Services Director, presented the staff report.  He said there was a draft performance agreement between the City and Prosoco.   When the Public Incentives Review committee discussed having a performance agreement with Prosoco at their meeting on October 30, 2003, they indicated that their recommendation to the City Commission was an agreement that did not contain automatic reduction in a tax abatement, but would provide for discretion to the City Commission on how to proceed.  There was non-compliance with the particulars of the tax abatement.  He said this tax abatement was approved by the City Commission under the previous tax abatement policy.  When the Commission approved tax abatement in the future, which was the next agenda item, he suggested drafting a similar agreement for future tax abatement, but make clear that there were provisions in the tax abatement ordinance that provided for automatic consequences for the failure to comply with the wage floor and health insurance requirements of a tax abatement.  The minutes from the Public Incentive Review Committee spoke for themselves as far as the various issues with the performance agreement.               

Mayor Dunfield called for public comment.

After receiving no public comment, Vice Mayor Rundle asked if the previous and current policy stated average wages and occupational categories.   

Corliss said the previous policy indicated that a qualifying criteria was that the company would pay at or above the average wage per position pursuant to the Kansas Department of Human Resources annual wage survey. 

The performance agreement language talked about the applicant executing a performance agreement.  He said the agreement indicated that the applicant would pay wages, have a certain number of jobs, and make the capital investment pursuant to their original application.   

Vice Mayor Rundle said he would like to see the performance agreement parallel the policy, rather than fix those wages.  He said those companies should be following along with average wages as they changed every year.    

Commissioner Hack said she did not see anything in the policy that talked about those wages as a floating amount, but the policy stated a qualifying amount. 

Vice Mayor Rundle said his assumption was that the qualification was that those wages were being paid throughout the abatement. 

Commissioner Schauner asked if the City Commission received a report about compliance with the abatement.

Frank Reeb, Administrative Services Director/City Clerk, said in both the new ordinance and the previous resolution there was references to an annual report.  He said staff solicits information from all of those businesses receiving tax abatements at the first of the year.  The information was then put together in a report that contained information on the capital investment, wages, number of jobs and other information.  That information was then sent to the Public Incentive Review Committee (PIRC) which was due by May 1^st of every year.   He said for this year, that information went to the Public Incentive Review Committee and during the April PIRC meeting, the Mayor asked that the report be revised.  He said the report for this year still needed to come to the City Commission.               

Commissioner Schauner asked when that report would come before the City Commission.

Reeb said the report should be forthcoming and well in advance of the December 10^th study session where the Commission would be considering those types of issues.

Vice Mayor Rundle said he wanted to see a provision of some type of claw-back language which he thought was the whole point of having a performance agreement to be able to enforce that agreement.  He hoped the PIRC would include some type of language that should the company be judged out of compliance, that the City Commission would have the right to consider recovering some of the abated taxes.

Mayor Dunfield said the claw-back was extensively discussed when this policy under which this abatement was granted was being developed and it was not included in that policy.  This City Commission clearly had some questions about the tax abatement policy that needed to be discussed and resolved and there was a date set to start that process.  He said in the interim that performance agreement came to the City Commission with a strong and positive recommendation from the PIRC.  He thought the City Commission should approve that tax abatement and move forward.

Commissioner Schauner said he attended the PIRC meeting when that matter was discussed and although he did not like that performance agreement because of some things that were not there, he did recognize that the things he would like to see in a performance agreement weren’t part of the tax abatement policy at the time that this particular abatement was granted.  He supported that performance agreement and strongly suggested to consider including claw-back language when looking at refining the current abatement policy and some other refinements that needed to take place.

He said he thought Prosoco’s argument was a good one at that meeting.  He said Prosoco went into this arrangement with a particular understanding and there was no discussion of claw-back.  He said it would be unfair to Prosoco to impose a condition now which wasn’t part of the consideration at the time the City entered into an agreement with them.

Commissioner Highberger concurred with Commissioner Schauner.  He said there were issues about that performance agreement that he did not like.  He preferred the original formula. 

Vice Mayor Rundle said the points were well taken about the claw-back not being part of the prior policy, but common sense would mean that the Commission should follow the average wages.  He said he was not going to cast a negative vote based on that issue, but he hoped the City Commission would concur with that particular clause because it parallels the policy. 

Commissioner Schauner said it should be part of the City Commission’s discussion.

Commissioner Hack said that was one of the issues that PIRC looks at in the evaluation.  She said PIRC was looking at those qualifying factors that allowed the company to apply for and grant an abatement.  She said it was not if those wages were not a significant part of the PIRC analysis.  She agreed there were issues that people have indicated.  She said the credit system was another issue that the City Commission needed to address in talking about tax abatements.

Vice Mayor Rundle said it was a mixed message that it was part of the analysis when performing the annual review, but it was not part of the agreement.                             

Moved by Hack, seconded by Rundle, to authorize the Mayor to execute an agreement with Prosoco concerning tax abatement. Motion carried unanimously.       (19)     

Conduct a public hearing on the proposed property tax abatement for AMARR Garage Door Group.  Receive recommendation from the Public Incentive Review Committee. 

 

Mike Wildgen, City Manager, said that issue had been to the Public Incentive Review Committee.  The City Commission had those minutes which contained the cost benefit analysis and that abatement had a favorable recommendation from the PIRC.   

Delbert Phlipot, AMARR Garage Door Group, presented a slideshow showing the history of the company and a review of its products.  He said AMARR Garage Door Group started out in 1951 as a local building supply company in Winston Salem, North Carolina.  During the next 15 years AMARR began to get involved in distributing garage doors.  He reviewed with the City Commission the history of AMARR as the following:

• 1969 - Became a manufacturer of wood doors.
• 1978 - Opened its second manufacturing facility in Alabama, producing wood sectional doors. 
• 1983 - Opened its first Door Center in Dallas, Texas which was a distribution center that distributed the product that they produced today to a lot of the small installers in the area.  He said also in 1983, AMARR opened its first steel door manufacturing facility in Kansas City, Missouri, and that as a partnership venture of three different garage door manufacturers out of Denver, Colorado; Kansas City, Missouri; and Winston Salem, North Carolina.  He said in 1983 steel raised panel garage doors began to develop.  AMARR was not in that business and did not have the equipment or the facility to manufacture raised panel steel doors, but through that partnership with the assistance of Capital Equipment and also property of the 3 ventures were able to get into that business.
• 1989 - Opened there 20^th Door Center in Knoxville, Tennessee and in December of 1989 AMARR constructed and moved into a new manufacturing facility in Lawrence, Kansas from Kansas City.
• 1994 - Introduced new products, put in a new production line, further developed their existing equipment in Lawrence with more automation and at the same time opened up their 40^th Distribution Center in Cleveland, Ohio.
• 1995 - Doubled the size of the facility in Lawrence by adding an additional 120,000 square feet to the facility.  In December 1995, they opened their first International Door Center in Mexico. 
• 1998 - Began producing a high end product in Mexico referred to as a carriage house product.
• 1999 - Developed a joint, special hinge, and special bottom brackets that allowed a more safe and operational door to the consumer.  He said today, they were the leaders in the industry in promoting a pinch resistant product for a safer operational door system.  In August of 1999, they opened their 60^th Door Center in Milwaukee, Wisconsin.
• 2001 - Celebrated its 50^th Anniversary.
• 2003 – Opened their third International Door Center in Hungary. 

Today AMARR had over 60 Door Centers nationwide with over 800 employees and 438 in the Lawrence facility alone and over $12,000,000 in payroll.  He said they had invested another $14,000,000 in the plant and equipment.

He said their future in Lawrence, Kansas, was to continue to focus on maintaining their employer of choice status, continue to be an outstanding corporate citizen, to introduce new products, expanding their manufacturing facility, and reviewing other acquisitions for opportunities.

The proposed expansion would consist of adding 120,000 square feet to their existing 240,000 square feet.  The expansion would be to the west end of their facility of about 20,000 square feet and the remaining expansion would be to the east end of the facility.

He said in closing, Lawrence has been good for AMARR and AMARR has been good for Lawrence.  He said Lawrence was a great place to work and live.  He said together they could work together to support each other in making Lawrence the community of choice.  On behalf of AMARR and its 435 team members, they encouraged the Commission to support and approve their abatement request.  He said it was important for them for the City to assist them in competing in their industry to maintain their growth.  He said it was AMARR’s intent to continue to invest in its operations and team members and enhance its position in their industry.             

Larry McElwain, Chairman, Lawrence Chamber of Commerce, Board of Directors, said   he supported the tax abatement request from the AMARR Garage Door Group.  He said the Chamber thought they were an excellent provider of basic jobs for the Lawrence community.  He said they presently employ 438 people, and they wanted to add 80 new employees which would bring new money to this community.  He said this was a partnership between their team members (workers) the company and this community and they saw it as a win/win situation.     

He said AMARR had a 14 good year history with Lawrence and they continued to see the reasons why to invest in Lawrence.

He said AMARR had survived through ups and downs in the local and national economy.  They were a prime example of why this City needed to continue to move forward with the credit system of giving companies some flexibility to deal with the ups and downs in the economy.      

He said AMARR has helped our economy to keep good manufacturing jobs.  He said the Chamber thought it was in the best interest of this City to retain a balance of manufacturing, distribution, service, and tech jobs of all sectors.  He said this was a company that has invested in this country and especially in this community. 

He said some of the areas in the cost-benefit analysis that they thought were important was $14,000,000 of current investment in this community which translated into tax dollars.  AMARR wanted to add 9.4 million dollars in new equipment and their square footage would be increasing which would affect their assessment on that site. Those were all part of the cost-benefit analysis, but those were important things for determining the worth of this business to this community, tax base, and to the workers.  He said the AMARR group has the best interest for Lawrence in mind and not necessarily just for their company.  He said the Chamber encouraged the City Commission to approve AMARR’s tax abatement request.        

Keith FolKmann Director of Plant Operations, Sauer Danfoss said the City Commission might wonder why he was there speaking in support of the AMARR Garage Door tax abatement application.  He said it would create 80 quality jobs at competitive wages for a reputable company.

He said there were some good reasons to approve that tax abatement application.  He said they had been successful in creating a diverse portfolio of manufacturing companies in Lawrence in Douglas County.  That diversity has provided for greater stability through the economic turns everyone has been experiencing.  Having some companies in a growth mode while others were not has allowed them to keep qualified manufacturing workers in the community and in fact, causes them to continue investing in training more people to meet those needs.  He said this was a situation that did not exist in every community, for example in Wichita where the community felt the benefit for the pain of the flocculation’s in one main industry.         

He said he also believed that creating more manufacturing jobs was healthy for the existing manufacturing companies.  It caused a “positive tension” or a “higher competitiveness” to attract the best candidates for job openings.  It would cause all of the existing companies as well as new prospects to do a better job at being the right choice for the company to work for. 

He said helping AMARR Garage Door successfully expand their existing business in Lawrence was the right decision and he urged the City Commission to support the recommendation from the Public Incentive Review Committee. 

Frank Male, Lawrence Landscape, spoke in support of the tax abatement.  He said Lawrence Landscape started in 1987 and since then they had worked for AMARR Garage Door Group, Mallinckrodt Veterinary, ProVanguard, Kinedyne, NCS Pearson, Prosoco, Sauer Danfoss, Reuter Organ, Lawrence Paper Company, K-mart Distribution, Berry Plastics, Heinz Pet Foods, Communicolor, HP Pelzer in Eudora.  He said with all those firms, they had done all the initial landscape installation or helped maintain the property in one way or another or both.  He said most, if not all of those companies had at one time or another received a tax abatement or an industrial revenue bond. 

He said the contracts that he described represented a sizable amount of revenue for a small locally owned contractor.  It was Lawrence Landscape’s case that work was worth roughly a half a million dollars.  He said the story did not stop there, he said on those jobs, more often then not, he would see the same contractors at the job sites such as Chaney Plumbing, LRM, R.D. Johnson Excavating, Huxtable and Associates, Bud Jennings Carpets, Kennedy Glass, Lawrence Asphalt Improvement, Penny’s Redimix, and Cloud Heating and Air.  He said if doing business in this town those were all names that were recognized. 

He said it would not be much of a stretch to assume that most of those local contractors had their insurance needs taken care of by Charlton Manley or Calvin, Eddy, Kappleman and they drive Ford pickup trucks with Laird Noller logos on the door.  They buy tires from D&D Tire and burgers from Bucky’s.  Most likely those were other business names that were recognized. 

One thing that all local contractors and many of the vendors have in common was they paid local property and sales taxes.  The tax abatement like AMARR’s was requesting helped prime the pump of the local business economy.  He asked the Commission to help local businesses, not only survive, but prosper.  He asked the City Commission to approve AMARR’s tax abatement.

Moved by Schauner, seconded by Highbinder, to close the public hearing.  Motion carried unanimously.  

Commissioner Highberger said he agreed that having basic manufacturing jobs in this town was important and it was crucial in keeping the kind of diversity that everyone valued in this community. 

He said with this particular abatement there were questions that he wanted to ask, but he was not sure it was appropriate under the current policy.  He said they had talked about the “but for” analysis when this expansion happened without a City tax abatement. 

He said the concern they had was illustrated by the previous experience the Commission had with Prosoco where the Commission granted the tax abatement and a year later the Commission was talking about the performance agreement.  He said he would like to see both of those pieces done at once.  He said while he was prepared to support the request for AMARR’s abatement, he would like to defer approval until such time as it came back with a draft performance agreement.

Commissioner Schauner said he agreed with Commissioner Highberger.  He said it was only fair to AMARR as well as to the City that they understood upfront what the terms of the performance agreement was so PIRC did not end up a year from now having the same kind of discussion that it did a few weeks ago about what the terms of that performance agreement ought to be.  He was prepared to support the abatement request, but he believed as a condition, that the City Commission should have in writing, the performance agreement as a piece of that.

 Commissioner Rundle said he reluctantly supported AMARR’s abatement.  The interpretation of the revised policy as communicated to AMARR did not match the understanding he had when he voted for the current policy on the previous City Commission.  He felt the Commission needed to do a better due diligence on behalf of the taxpayer, but he did not feel that they could hold AMARR hostage to this debate.    

Commissioner Hack appreciated Male’s comments.  She said those comments showed how economic development benefited so many people in the Lawrence community.  She said Corliss indicated exactly how this new performance agreement would be constructed based on the previous performance agreement and adding the compliance requirements for the wage floor and insurance that was required in the new ordinance.  She said she understood that while some Commissioners might have concerns with the current abatement ordinance, they were not in existence at this point and to put anything other than what the City Commission had agreed upon in the ordinance, in the performance agreement was not appropriate at this point.  She said the major changes, in terms of the abatement policy, was those of the wage floor and compliance and those would be addressed in the performance agreement as per Corliss’ conversation.  She enthusiastically supported AMARR’s tax abatement.

Commissioner Schauner said it was not his intention that the performance agreement drafted by Corliss would add anything that was not already contained in the City’s tax abatement policy, but as anyone going into a business relationship, he wanted to see that in writing before he said it was okay.  He said the Commission owed it to AMARR and the taxpayers of the community that the Commission see that document in writing as a precondition of approving the abatement.

Mayor Dunfield asked if it would be fair to say that it was the City Commission’s intention to enter into an agreement with AMARR because the performance agreement was the contract between the City and the company and there was no tax abatement until that contract was signed.

Commissioner Schauner said he did not have any problem with stating the Commission’s intentions conditioned upon the drafting of and the approval of a performance agreement that was approved by this body.

Commissioner Hack said the policy reads that when the abatement was approved by the City Commission then a performance agreement was drafted and accepted.  She said there was no reason to have a performance agreement unless there was an abatement.                

Commissioner Highberger said he did not want to see the City Commission in a situation that they were in with Prosoco where the company had made investments based on the City Commission’s commitment to a tax abatement and then a year later, there were arguments about the terms of that agreement.

Vice Mayor Rundle said generally there was a delay because the project had to be built before it had a value that could be assessed.  He said the Commission did not know how much an 80 percent abatement was until there was a final value.  He said there wasn’t anything strange about that one year delay because the Commission could not do the official abatement that was then sent to the Board of Tax Appeals until the project was completed.  He said it was for the City Commission to determine what went in and what was left out of the performance agreement.  He said for the Commission to interpret and apply the policy obviously, they did not want to put anything into the policy that was not in the perimeters of the policy. 

 Wildgen reminded the City Commission that Serological would be applying for a tax abatement and that was going to be similar to the Prosoco situation.   

Corliss said he would give the City Commission copies of the recently adopted tax abatement policy that included the wage floor.  He would include sections 24 and 25 that were in the tax abatement ordinance, in the agreement.  He said it sets out the requirements for non-compliance for the wage floor, made it clear that the performance agreement should also require the monitoring of the average wage criteria by the Department of Human Resources and talked about the annual review. 

Commissioner Schauner asked if that document would use the annual report from PIRC as one of the measures of whether performance had been satisfied.

Corliss said yes.     

Commissioner Schauner said what the Commission would need was a timely annual report from PIRC as a part of the process of determining whether performance had been satisfied.

Corliss said that was correct, but to keep in mind that the wage floor requirements that the Commission approved in the past few weeks essentially had an automatic consequence if that wage floor was not paid.  It was depended upon reporting in which PIRC would do and monitor, but it was not depended upon a recommendation.

Commissioner Schauner said the Commission would need the report from PIRC timely filed so the Commission would know whether or not that wage floor had been satisfied.

Corliss said correct.

Wildgen said it might not be until 2006 before the Commission saw that first report. 

Commissioner Schauner asked if there would be benchmarks along the way with respect to progress on the physical construction of the site.

Wildgen said typically there were no reports on their construction. 

Moved by Hack, seconded by Schauner, to accept the recommendation of the Public Incentive Review Committee and approve the tax abatement request, subject to the execution of performance agreement.  Motion carried unanimously.                                                        (20)

Conduct a public hearing on a request by Rick Younger, owner of Rick’s Place, requesting that the City Commission waive the distance limitation in City Code Section 4-113(A) prohibiting the sale and serving of alcoholic liquor within 400 feet of a school or church.

 

Mayor Dunfield called the public hearing.

Frank Reeb, Administrative Services Director, said this public hearing was being held pursuant to Chapter 4, City Code, City of Lawrence.  He said within that chapter there was a location restriction that prohibited a drinking establishment from operating within 400 feet of a church or a school.  Within that same section of that chapter there was express authority for the Governing Body to waive that restriction in the event it made the finding that the proximity of the drinking establishment to the particular school or church was not adverse to the public welfare or safety.  Those were the basic code provisions that were at issue.  He said the owner was seeking to relocate his establishment, Rick’s Place, from its current location on the 600 Block of Vermont to 846 Illinois.  He presented an area photograph that showed the area that was being discussed.  He said the owner would be in Suite F and the St. Sophia’s Church was located in Suite A which was a book store, but it held Bulgarian Orthadox services throughout the week at that location. The area in question was approximately 150 to 175 feet from Suite A to Suite F.  The action of the Commission was to conduct a public hearing and direct staff how to proceed.       

Rick Younger, owner of Rick’s Place, said he owned a home 801 Arkansas which was in Old West Lawrence neighborhood.   He said he bought that house 8 ½ years ago and planned on being at that location for quite some time. 

He said as far as his business went in Lawrence, he had purchased Bogart’s back in 1990 and then in 1992 he changed the name to Rick’s Place and moved to 623 Vermont.  Before that, Bogart’s was located at 611 Vermont.  He said over the last 14 years, he had over 5 dozen employees, 3 dozen of those employees had graduated from K.U. and Haskell and he continued to employee students and local people in Lawrence. 

He said he was asking the City Commission to grant a waiver because he would be within 400 feet of a Church.  He said the bookstore that was at that location was also called St. Sophia Church.  He said he had spoken to the president of the congregation on 4 different occasions and the president wished him luck and he was happy to be his neighbor and hoped to visit with him many times in the future.  He also had spoken to everyone else in that strip mall and they were all pleased with the situation.

He said having his businesses at 623 Vermont, he had Reverend Paul Gray at the Heartland Community Church as a neighbor and the Reverend also wished him luck and that he had been a wonderful neighbor.

He said a lot of neighbors were going to have questions about problems that he might have because they would be a neighborhood establishment.  He said his establishment was not like the Palladium, Power Plant or a disco.  He said they did not run a place that was a haven for heathens and renegades, but for the local people in Lawrence.  He said when looking at his clientele one evening there were school teachers, bank president, financial planner, mutual funds accountant, Fireman/EMT, Utility employee,  2 professors from the University of Kansas, an engineer, landscape architect, house painter, university students from K.U., Police Officer, Physician, Psychologist, Historian, Poet/Musician, carriers from the Post Office, construction worker, nurse, two manager’s of locally owned businesses, an attorney from the State of Kansas, and an art instructor from the Lawrence Arts  Center.  He said that was a cross section of the clientele he had at Rick’s.  He said at times, they had Bridge games on Saturday afternoons.           

He said the new place that he was asking the Commission for a waiver was going to be a smaller place and have approximately 82 occupants.  He described the entertainment he would have in his establishment.  He said there would also be a high tech smoke eating system so that they could make sure that anyone that wanted to come to his establishment could. 

He said when he moved back to Lawrence in 1988, he made a decision to come to this town and live here a long time.  He asked the City Commission to grant the waiver.

Commissioner Hack asked at what point Younger decided to open at that particular location.

Younger said September 15, 2003.

Commissioner Highberger said his concern was the difference between the current location and the location that he was planning on going to.  He said the neighbors had raised concerns about what would happen on football game days.  He said those neighbors have had bad experiences with clubs in their neighborhood.

Younger said he had not looked that far down the road.  He said he needed to speak with the owner of that property because the owner might chain off that area and use it for parking areas.  He said if the team continue to play well, then it would probably become an issue, but at the present time, he did not have any specific plans one way or the other.

Commissioner Hack said she understood that Younger had some similar business practices in terms of working with neighbors and keeping the area clean.

Younger said he had already met with his staff and they would make certain that at closing time everyone was out timely and orderly.  He said also they would make sure the parking lot was policed and trash was picked up.  Again, he had spoken to all of those businesses in the area and they were happy to have that business at that location.  He said he had a 20 year lease.  He spoke of all of the money they helped raise for charities and Lawrence functions throughout the years for this community.   

Nicki Christopher, State of Kansas Attorney, said it was important to remind the City Commission that Younger was going into an established business corridor and he was not creating a business where there wasn’t one before.  She said Younger was going into a property that had been a liquor store in the recent past and also a past bar.  She said he was not forging new territory for sales of alcohol in Lawrence nor was he forging a territory for additional commercial development where there was none. 

She understood the neighborhoods concerns, but it was important for the Commission to be aware that this was not a typical Lawrence kid bar.  She said Younger did not sell jello shots or have 3 for 1 night.  If the Commission wanted facts, they could check with the Police Department on the complaint rate on Rick’s Place and the Commission would find that it was almost non-existent.  She said she was not going to try and convince anyone that that could not be convinced that Rick’s Place would not be a troubled spot for the neighborhood.         

She said the big part of the Commission’s job was to foster vitality and manage growth at the same time.  It was important to hold onto the businesses that were well run and had a history of success.  Especially, an establishment that did not make a practice and specialty out of funneling excess alcohol in under aged kids.  The support that the Commission could show for the more moderate establishments in town was a vote of support for moderation and more reasonable way of entertaining ourselves. 

She said the Commission would not make everyone happy if they waived the ordinance requirement, but that did not mean it was a bad decision because any Commission decision they made, made everyone happy.   She said the Commission had the ability to waive the distance requirement because they needed the flexibility to ensure that businesses could continue to be vital.  The well being of our community was guaranteed by such flexibility for its inhabitants and businesses which included schools and churches.  She said she understood that the Church, in question, was not raising any concerns and they did not wish to place that on record.  The concerns of the neighborhood were understandable and it was important for the City Commission to listen and to take their concerns under consideration, but the Commission needed to keep in mind, Rick’s Place willingness to work with the neighborhood and the existence of the whole body of existing ordinances that were designed to facility good relationships between neighborhoods and the adjacent businesses should guide the Commission’s decision and judgment.  She said the Commission needed to keep in mind, as they listen to a lot of those neighbors, that they were elected by the entire community to act and make decisions for the community as a whole.  She understood that the Commission had made it a priority to preserve local businesses and to help make the unique character of Lawrence vital and healthy. 

She said a lot of people who patronize Rick’s Place thought it was special and it was her belief that Rick’s Place was not special because it was in Lawrence, but Lawrence was special because of places like Rick’s Place.  She urged the Commission to grant the waiver on the distance limitation and let Younger move on with the task of relocating his business.

Commissioner Highberger asked when there was a bar at that location.

Christopher said that bar was hearsay.  As the friends had been talking about what all had been in that location, it was her understanding that at one time there was a sandwich/bar shop, but she might be mistaken.  She said she knew there was a liquor store at that location for quite a number of years.

Steve Neher, owner of the Old Towne Square property, location where Younger wanted to relocate, said there was a liquor store when the bookstore signed a contract.  He pointed out that one of the largest liquor stores in Lawrence, Cork and Barrel, was also within that 400 foot zone.

As the property owner, he said to address some the concerns that the community might have, they had recently installed “state of the art” digital surveillance equipment that covered the entire front of the building and most of the parking lot.  The parking lot was well lit at night and they also had written language in the contract that they had with Younger that the parking lot would be cleaned up after each business day. 

In regards to the football game issue, they did police the parking lot on football game days to allow parking for the customers and businesses at that location.      

Mayor Dunfield asked how many parking spaces were in the lot.

Neher said there were approximately 38 to 40 parking spaces.

Commissioner Highberger asked if alcohol was served in that space at any time.

Neher said they purchased that property last year and he did not know the history of that location.

Anne Thompson, Kansas City, affirmed that Younger ran his establishment as a delightful place for top players for bridge.  She said Younger maintained and required good conduct of the patrons.  She said the bridge player from Kansas City had enjoyed coming to Rick’s Place and it was acquiring a good reputation regionally.

Nathan Webb lives in the 800 block of Illinois. He said because of his proximity to those businesses and the fact that he has lived in the 800 block for the past 4 years, he felt compelled to talk with the City Commission.  He originally intended to prepare comments rather than to voice his strong opposition to that waiver. 

He did not want his opinion to be an indictment of Younger because he thought Younger was a good guy.  In fact, he was not opposed to bars.  He said his concerns were not about the way he ran his establishment, but based on his experience that there was a certain amount of inappropriate misbehavior that accompanied a bar. 

He said in the past 3 years, he had called the Police on a half a dozen occasions because people were doing inappropriate things on or around his property.  He said he dealt with a number of issues including, peeping toms, highly intoxicated people, repeated vandalism,  and his wife had been verbally accosted by people that were loitering in that parking lot.  He said there had been a liquor store at that location up to the last 6 months and when that liquor store went out of business that inappropriate activity almost completely ceased.           

Among his other concerns was that in an 8 block radius this establishment was going to be the only bar.   Their area was an historic neighborhood and was almost entirely residential.  Of the 12 houses on his block, 4 of those houses had young children. Again, he had concerns, which was not with Younger, but with the encroachment of a drinking establishment in an almost entirely residential neighborhood. 

He said Younger was a Lawrence original and a colorful character and he appreciated that, but nonetheless, he did not believe that a waiver was appropriate under those circumstances.  He said if the City Commission did decide to grant a waiver, he suggested that limitation on the hours of operation might be worth considering.

Peter Thompson, Linwood, Kansas, spoke in support of the waiver request.  He said he had been going to Rick’s for 3 to 4 years.  He worked in a very high pressured job, and he and other people from his work always looked forward to going to Rick’s Place on Friday to unwind.  He said he had never seen any kind of altercation or argument.  He said the average age of patrons in Rick’s Place was 50 years old.      

Diane Chamberlain spoke in support of the waiver request. She said from the information reported in Lawrence Journal World, the Old West Lawrence Neighborhood Association opposed that relocation.  She said not everyone who lived in Old West Lawrence belonged to that association.  She said some of the neighbors that lived in the area welcomed that local neighborhood bar into their area.  

She said the clientele at Rick’s Place were far from the other types of bars that were in downtown Lawrence.  She saw professional, career oriented individuals who had a place to stop off before going home to relax, to have some conversation, and a little bit of fun.  Those people were not ruffians looking to cause trouble and they were not out to disturb the peace of the neighborhood or interfere with any other businesses or entities that resided in that small shopping mall area. 

If it was up to Younger, he would probably stay where he was, but unfortunately he was unable to do that, as his lease was not going to be renewed due to a buyout of his property.  She said all Younger wanted to do was to relocate his business and to continue serving his loyal customers.  She said let us not forget that this was a business and a “yes” vote from the Commission to waive the distance limitation would let Rick’s Place relocate to that area.  She said a “no” vote however, would possibly put Younger out of business and she did not believe that the City wanted to see yet another business fail  but  she hoped the Commission would listen through the voice of good economic practice and retain the businesses Lawrence had established.       

A person from the public who lived on the 800 Block of Alabama opposed the waiver.  She said a retail business being turned into a place that served alcoholic beverages would not benefit her home. 

She said at one time she had lived a short distance away from a bar in a college town in upstate New York.  The bar was quiet and well ran, but that person retired and the bar was sold to local kids who had ties to their community.  The bar became loud with music and it became impossible to make be heard to someone 3 feet away.

She said allowing that waiver for Rick’s Place meant that the Commission would be allowing waivers for other establishment elsewhere.  The law would become hollow and would not hold up.  She said this code section seemed to prohibit the “sale” and “serving” of alcoholic beverages.             

 Caleb Morse, Chair, speaking on behalf of Lawrence Association of Neighborhoods (LAN), spoke against the waiver request.  He said this had nothing to do with Younger or the way he maintained his business.  He said LAN advocated for mixed use development and for redevelopment of business vacancies in older neighborhoods, especially those that serve the residents of their immediate environs.  A successful maintenance of historical mix uses would contribute measurable to the continued vibrancy of their older neighborhoods, ensuring that they remain convenient and desirable places to live.

LAN also strongly supported the efforts of the local business owners recognizing that the health of the local economy in Lawrence’s unique character were directly tied to the success of local businesses.  However, recent history had shown that bars were often not compatible with residential neighborhoods.  This was especially true when such business become concentrated in neighborhoods as they had elsewhere in west Lawrence.    He said there was only one bar in the northwest side of Old West Lawrence and the neighborhood was bordered on its north and south sides by three package liquor dealers.

He said approximately 2 years ago, residents of Old West Neighborhood Association (OWL)  were successful in down zoning much of their neighborhood to single family residential which was an achievement that would go a long way toward ensuring that this fragile neighborhood remained a desirable place to live for the coming years.

Redevelopment of the strip mall at 9^th and Illinois with neighborhood oriented businesses would be another game for OWL.  On the other hand the presence of another bar would not help serve to meet the diversity of the neighborhood.  To the extent a bar or a liquor store served the neighborhood in which it was located, that bar would probably not serve OWL any better than the existing businesses did.  It was clear that the hours of operation of a bar and the nature of the business were often at odds with what the needs of the residential neighborhood such as Old West Lawrence.      

Elsewhere in eastern Lawrence, the presence of bars in residential neighborhood had resulted in decline of the quality of life for adjacent residents and a decline in the value of their property. 

He said LAN sympathized with Younger’s plight and they were disappointed to see local business owner lose their lease in downtown Lawrence.  He urged the City and the citizens of this community to take appropriate action to ensure that this would not become epidemic.  He said LAN joined with OWL to ask the City Commission to deny this request and urge Younger to look for an acceptable location to move his business.

Jim Joyce who lived in the 800 Block of Arkansas, spoke in support of the request. He did not see what the problem would be having Rick’s Place in the neighborhood.  He had spoken with people on his block and they were offended by what was put out by OWL.  The neighborhood association issued their statement and a number of people on his block and other blocks in Old West Lawrence were not aware of what was happening because no one contacted them to get their opinions.  He said not everyone felt the way OWL felt.

He addressed issues with football games.  He said the greatest problem he had with football games was the trash when people came to park for those games.             

Dale Slusser, President, speaking on behalf of Old West Lawrence, addressed the way the neighborhood made a decision on that issue.  According to OWL’s bylaws they had block workers who were appointed to represent that block.  In cases where they felt there was not sufficient time to call a general meeting which this was one of those cases, they notified those block workers by email or a telephone call.  He said they received responses from a good number of those workers.  A meeting was held and at that time, there was a unanimous vote to oppose granting the waiver.  He said a flyer was distributed over the weekend to those blocks announcing that this meeting would be taking place and encouraged those residents to come and speak on that issue.  He said OWL did not feel that a bar was appropriate in their residential neighborhood.       

Mike Goans, 700 Block of Maine, spoke against the waiver request. He said he had discussions with Father Mack at St. Sophia’s and he had expressed concerns about safety, sharing a parking lot with a bar.  At the same time, Father Mack expressed a philosophy of non-confrontation and he believed that Father Mack would also have wished the neighborhood association success with this issue. 

He said earlier in the evening, the Commission discovered that when they grant a waiver for issuance of a liquor license that license became grandfathered.  He said in the event that Younger was no longer the owner of that establishment, that license would be grandfathered.  He said they should not be basing this decision on Younger’s personality, but on the merit of the case.

He came before the City Commission approximately 2 years ago, at that particular time, that City Commission, Planning Commission, and Historic Resources Commission all recognized that this area at 9^th and Illinois should be a residential area and voted to rezone that area as RS-2 and there was not one negative vote from any member on any Commission.

He said they were not asking the City Commission to restrict the rights of the property owner or the lease holder of this property.  There appeared to be no dispute over the fact that the applicant was asking for a waiver from the City Code and asking for special treatment.  The code did not allow a bar without a waiver.  They were asking that the City Commission to not grant a variance from the City Code.  A waiver was not in the best interest of the Church, the neighborhood, the schools, or the City-at-large.  A waiver would adversely affect the 9^th and Illinois area forever.

Larry Fullerton lived in the 800 block of Illinois. He said he had lived in the area since 1970.  He said when there were bars in the area, there were people running through his yard, jumping fences, and yelling and screaming at all hours of the night.   He was representing some of his neighbors to oppose the granting of a variance.  He suggested that Younger go somewhere else with his bar and that this bar should stay in Lawrence, just not in his neighborhood.

Geraldine Slater lived in the area.  She said she lived in North Lawrence several yeas ago and lived close to a bar.  There was a constant stream of annoying events such as, urinating in yards, noise late at night and trash cans stolen.    She said they were concerned about excess traffic and she did not think it was good idea to place a bar in residential neighborhoods.  She asked the City Commission to deny the request.

Sven Alstrom spoke in support of the waiver request.  He was a new local architect returning back to Lawrence.  He said he found this establishment to be a unique bar and Rick’s Place provided the vitality and a responsible resource that had a harmonizing effect.  This was an establishment that was trying to be mindful of its neighbors.  He said the neighborhood had a respectful, mindful operator that would step up to the plate and address the concerns of the neighborhood.  He encouraged the City Commission to look at this as a new tenant in a commercial area.  He did not believe that the church issue should be focused on because it was a book store and a tax paying business enterprise and not specifically a church. 

Burdett Loomis, Treasurer, Old West Lawrence Association, said he lived on 7^th Street.  He said it was easy to go to sleep around 11:00 p.m., but at 2:00 a.m., they were woken up by foot and mobile traffic and now, if Rick’s Place wavier was granted, there would be even more traffic.  He said they did not wish Younger ill will at all, but this has been a neighborhood that had been fragile and this would be a small step in the wrong direction.

Jerry Neverve, Lawrence, said the zoning on this property was proper for Rick’s Place. He spoke in support of the waiver request.

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

Vice Mayor Rundle said he had friends that were “for” and “against” Rick’s Place at that location and he stood with his friends.  He was enthused when he heard that bar was coming to the neighborhood, but that was tempered by the letters that came following that idea against the allowing the waiver.  He was anxious to hear the persuasive comments from his fellow Commissioners.

Commissioner Highberger said one important concern was raised about having a good establishment, but then there was a change of ownership.  He asked if the Commission could condition the approval of the waiver on current ownership.  

Corliss said he anticipated that questions.  He said the code restriction, in section 4-113, on the restriction of location, was silent as to whether or not the Commission had the authority to condition the waiver.  Silence was neither good nor bad, but it could be a potential problem.  He said it had been in the City’s practice to liberally construe the Commission’s powers and he thought the Commission had the authority to condition the waiver.  He said the waiver could be conditioned upon ownership or other items as well.  Whether or not that was good public policy, he had not had a chance to reflect on that issue.  He reiterated that the Commission did not have code authority that told them one way or the other.   

Commissioner Highberger said following that section the code talked about restriction could be placed on a licensure.  He asked if that was where the Commission’s authority might be found.

Corliss said the Commission could adhere to that as authority.  When the City Commission, at that time, adopted the provisions it was in response to some of the concerns that was discussed this evening. It was a tour of a number of the drinking establishment neighborhood clashes that they had in recent years to give the Commission additional code authority to place conditions on drinking establishment licenses if the Commission deemed that was within the public interest.  That location restriction predated that and it had been in the code for a number of years and even had some of its antecedents in the Kansas statutes that gave cities certain location restriction authority for drinking establishments or their predecessors which were the clubs.  He said he did not know if it made sense to condition the license on an annual review. 

Younger said the lease that he had signed was a 5 year lease with a 20 year option with the first right of refusal.  He reiterated that he did not plan on going anywhere.  He said the last thing that he wanted to do was to bring harm to his neighborhood. 

Vice Mayor Rundle asked if the license was in that establishments name.         

Reeb said correct.

Vice Mayor Rundle asked if licenses were transferable.

Reeb said no, under state and city codes drinking establishment licenses were not transferable.  If one establishment ceased to operate any subsequent establishment would need both a city and state drinking establishment license.

 Commissioner Schauner said the question was whether that proposed business was within 400 feet of a school or a church.  The statue created a presumption that the business was inappropriate if it was within 400 feet of school or a church.  However, the presumption was rebuttable which the Commission could find that if the establishment would not be adverse to the public, welfare, or safety, they could rebut the general presumption that it was an inappropriate location for that business. 

The question of whether St. Sophia’s was a church or not was not for the Commission to decide.  If they thought they were a church, act like a church, then they were a church. 

He said at one time he lived in a historic neighborhood near the center of a city and he knew how difficult it was to maintain the integrity of older neighborhoods.  There was a lot of pressure to redevelop, modernize, and keep homes owner occupied.  He said those issues were compounded by the fact that this particular location was a quick walk from campus or where students live. 

He said an unanswered question in his mind was whether Rick’s Place moving to this location would have some change in the clientele of Rick’s Place.  He said the presumption of this being an inappropriate location pursuant to the ordinance had been rebutted by those who spoke in support of the establishment being permitted to operate at that location.

Commission Highberger said this was a classic “lose/lose” situation.  He suggested approving with license restrictions on the drinking establishment license and condition the waiver on the continuing of ownership of that establishment by Younger.  He came to the Commission fairly sure that he was going to vote against granting the waiver and now he was unsure.

Vice Mayor Rundle said except for the waiver requirement was there anything to prevent that establishment f