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HomeMy WebLinkAbout2008_09_23 CC PKTCity Council Packet September 23, 2008 Brookings City Council Tuesday, September 23, 2008 City Hall Council Chambers 311 Third Avenue NO WORK SESSION 6:00 p.m. ~~ Council Meeting Mission Statement The City of Brookings is committed to providing a high quality of life for its citizens and fostering a diverse economic base through innovative thinking, strategic planning, and proactive, fiscally responsible municipal management. 6:00 P.M. REGULAR MEETING 1. Call to order. 2. Pledge of Allegiance. 3. City Clerk records council attendance. 4. Action to approve the following Consent Agenda Items * A. Action to approve the agenda. B. Action on Resolution No. 79-08, awarding bids for the 2008-123 Subdivision Utilities and Grading Project (for Sieler Addition, Cardinal Drive and Remington). C. Action on Resolution No. 80-08, awarding bids for the 2008-10SSI Timberline Detention Pond Grading Project. D. Action on Resolution No. 81-08, authorizing the City Manager to sign a Wine Operating Agreement renewal with Guadalajara’s. E. Action to cancel the November 11th council meeting. F. Action on Resolution No. 82-08, a Resolution authorizing Change Order (CCO#1 Final) for 2008 purchase of concrete sand for Edgebrook Executive Nine Greensoil Mix, Contract Date August 12, 2008 to L.G. Everist, Inc., Brookings, SD. G. Action on Resolution No. 83-08, A Resolution Concurring in the Placement of Stop Signs at the Intersection of 8th Street and 13th Avenue. Action: Motion to approve, request public comment, roll call * Matters appearing on the Consent Agenda are expected to be non-controversial and will be acted upon by the Council at one time, without discussion, unless a member of the Council or City Manager requests an opportunity to address any given item. Items removed from the Consent Agenda will be discussed at the beginning of the formal items. Approval by the Council of the Consent Agenda items means that the recommendation of the City Manager is approved along with the terms and conditions described in the agenda supporting documentation. Presentations/Reports/Special Requests: 5. Open Forum. 6. SDSU Report. 1 City Council Packet September 23, 2008 Ordinances – 1st Readings **: 7. Ordinance No. 38-08, An Ordinance Amending Section 6-4 Of The Revised Ordinances Of The City Of Brookings And Pertaining To The Sale Of Alcoholic Beverages On Sunday In The City Of Brookings. Public Hearing: October 14th 8. Ordinance No. 39-08, An Ordinance establishing a conditional use to establish an apartment on the W ½ of the W ½ of Lots 1 – 4, excluding Lot H-1, Block 11, Skinners Second Addition (1016 6th Street). Public Hearing: October 14th 9. Ordinance No. 40-08, An Ordinance rezoning Lot 3, Nelson Eighth Addition from an Agricultural A District to a Residence R-1B District (15th Street South and Medary Avenue area). Public Hearing: October 14th ** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced. Public Hearings, Second Readings, Ordinances: 10. Ordinance No. 37-08, an ordinance providing for the sale and consumption of alcoholic beverages upon property adjoining a licensed premises in the City of Brookings, South Dakota (Sidewalk Sales). Action: Motion to approve, request public comment, roll call 11. Ordinance No. 36-08, an ordinance amending and revising various building, property maintenance and nuisance ordinances of the City of Brookings, South Dakota. Action: Motion to approve, request public comment, roll call Alcohol Licenses: 12. Action on Resolution No. 84-08, authorizing the City Manager to enter into a Wine Operating Agreement for Hagman’s Bakery, 307 & 311 Third Street, Doug & Pam Hagman, owners. Action: Motion to approve, request public comment, roll call 13. Action on an on-sale malt license for Hagman’s Bakery, 307 & 311 Third Street, Doug & Pam Hagman, owners. Action: Motion to approve, request public comment, roll call Other Business: 14. Presentation of the Final 2007 City of Brookings Audit by Dick Ellis, Wohlenberg Ritzman & Co. LLC. Informational 15. Discussion and adoption of the Storm Water Master Plan. Action: Motion to approve, request public comment, roll call 2 City Council Packet September 23, 2008 16. Executive Session for purposes of discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, where public discussions would be harmful to the competitive position of the business. Action: Motion to enter executive session – voice vote Motion to leave executive session – voice vote 17. Adjourn. Brookings City Council Scott Munsterman, Mayor Tim Reed, Deputy Mayor Mike Bartley, Council Member Tom Bezdichek, Council Member Ryan Brunner, Council Member Mike McClemans, Council Member Julie Whaley, Council Member Council Staff: Jeffrey W. Weldon, City Manager Steven Britzman, City Attorney Shari Thornes, City Clerk View the City Council Meeting Live on the City Government Access Channel 9. Rebroadcast Schedule: Wednesday @ 1pm, Thursday @ 7 pm , Friday @ 9 pm and Saturday @ 1 pm The complete City Council agenda packet is available on the city website: www.cityofbrookings.org If you require assistance, alternative formats, and/or accessible locations consistent with the Americans with Disabilities Act, please contact Shari Thornes, City ADA Coordinator, at 692-6281 at least 3 working days prior to the meeting. 3 City Council Packet September 23, 2008 6:00 P.M. Meeting CONSENT AGENDA #4 A. Action to approve the agenda. B. Action on Resolution No. 79-08 awarding bids for the 2008-123 Subdivision Utilities and Grading Project (for Sieler Addition, Cardinal Drive and Remington). C. Action on Resolution No. 80-08, awarding bids for the 2008-10SSI Timberline Detention Pond Grading Project. D. Action on Resolution No. 81-08, authorizing the city manager to sign a Wine operating agreement renewal with Guadalajara’s. E. Action to cancel the November 11th council meeting. F. Action on Resolution No. 82-08, a Resolution Authorizing Change Order (CCO#1 Final) for 2008 purchase of concrete sand for Edgebrook Executive Nine Greensoil Mix, Contract Date August 12, 2008 to L.G. Everist, Inc., Brookings, SD. G. Action on Resolution No. 83-08, a Resolution Concurring in the Placement of Stop Signs at the Intersection of 8th Street and 13th Avenue. Action: Motion to approve, request public comment, roll call City Manager Recommendation - Approve 4 City Council Packet September 23, 2008 CONSENT AGENDA #4 4B. Action on Resolution No. 79-08 awarding bids for the 2008-123 Subdivision Utilities and Grading Project (for Sieler Addition, Cardinal Drive and Remington). This project entails the construction of streets in the Sieler Addition, located north of the Hunters Ridge Addition in the southern part of Brookings. The streets included in this project are Cardinal Drive, Cardinal Drive Circle and Remington. This construction project is a TIFF project which includes water mains and services, sanitary sewer mains and services, grading, gravel, curb & gutter and either asphalt or concrete paving. This project was bid to have the water and sewer to be installed on the all of the streets by November 15, 2008 and the Remington curb & gutter installed by November 15, 2008. The Cardinal Drive and Cardinal Drive Circle curb & gutter and the street pavement are scheduled to be completed by June 30th, 2009. The project has been bid with two schedules and one alternate: • Schedule A includes the street grading and concrete pavement • Alternate A-1 is an asphalt pavement alternate • Schedule B includes the water and sanitary sewer utilities The plans were mailed to several area contractors and 2 builders exchanges. The bid letting was held on Tuesday, September 16, 2008 and the City received the following bids: Schedule A (Grading): (Engineer’s Estimate, CDI, $334,097.40) Clark Drew Construction Co., Brookings, SD $317,329.50 Bowes Construction, Inc. Brookings, SD $323,948.57 Rounds Construction Co., Inc., Brookings, SD $330,185.24 Alternate A-1(Asphalt Pavement): (Engineer’s Estimate, CDI, $46,944.00) Clark Drew Construction Co., Brookings, SD $61,867.98 Bowes Construction, Inc. Brookings, SD $61,867.98 Schedule B (Utilities): (Engineer’s Estimate, CDI, $90,710.00) VJ Ahlers Excavating, Inc., Brookings, SD $101,383.44 Prunty Construction Co., Inc., Brookings, SD $103,493.20 Runge Enterprises, Inc., Sioux Falls, SD $119,123.09 Unerground Developers, Inc., Sioux Falls, SD $119,625.93 The low Schedule A (Grading) bid was approximately 5% lower than the engineer’s estimate (CDI, Inc.) of $334,097.40. The two Alternate A-1 (Asphalt Pavement) bids were approximately 32% higher than the engineer’s estimate (CDI, Inc.) of $46,944.00. The low Schedule B (Utilities) bid was approximately 12% higher than the engineer’s estimate (CDI, Inc.) of $90,710.00. 5 City Council Packet September 23, 2008 This project was designed with concrete street pavement under Schedule A, which was a cost of $146,306.25. If bid Alternate A-1 (Asphalt Pavment) is awarded for the asphalt street pavement, the cost of the concrete pavement would be deducted form Schedule A. It is my recommendation that the City allow the TIFF funds to pay for the standard residential street cost, which is for an asphalt pavement design. Staff recommends that the developer pay for the additional cost for concrete street pavement if that is their choice of pavement materials. This will allow the TIFF funds to be utilized on an equitable basis among developments. Staff recommends awarding: 1) Schedule A (Grading) to the low bidder Clark Drew Construction Co, in the amount of $317,329.50. The low bid for Schedule A (Grading) portion of this project included a price of $146,306.25 for concrete pavement for the streets. 2) Alternate A-1, (Asphalt Pavement), to Clark Drew Construction in the amount of $61,867.98, which would result in a deduct of $146,306.25 for Schedule A. This would be a net cost savings of $84,438.27 to the TIFF project. 3) Schedule B (Utilities) contract in the amount of $101,383.44 to the low bidder VJ Ahlers Excavating, Inc. 6 City Council Packet September 23, 2008 Resolution No. 79-08 Resolution Awarding Bids on Project 2008-123STI Sieler Addition Subdivision Utilities & Grading Project Whereas, the City of Brookings opened bids for Project 2008-123STI Sieler Addition Subdivision Utilities & Grading Project on Tuesday, September 16, 2008 at 1:30 pm at Brookings City Hall; and Whereas, the City of Brookings has received the following bids for Project 2008-123STI Sieler Subdivision Utilities & Grading Project: Schedule A (Grading): Clark Drew Construction Co., Brookings, SD $317,329.50 Bowes Construction, Inc. Brookings, SD $323,948.57 Rounds Construction Co., Inc., Brookings, SD $330,185.24 Alternate A-1(Asphalt Pavement): Clark Drew Construction Co., Brookings, SD $61,867.98 Bowes Construction, Inc. Brookings, SD $61,867.98 Schedule B (Utilities): VJ Ahlers Excavating, Inc., Brookings, SD $101,383.44 Prunty Construction Co., Inc., Brookings, SD $103,493.20 Runge Enterprises, Inc., Sioux Falls, SD $119,123.09 Unerground Developers, Inc., Sioux Falls, SD $119,625.93 Now Therefore, Be It Resolved that the low bid of Clark Drew Construction, Co, Brookings, SD for Schedule A (Grading) of $317,329.50 with the bid Alternate A-1 (Asphalt Pavement) of Clark Drew Construction Co. of $61,867.98 be accepted; and that the low bid of VJ Ahlers Excavating, Inc., Brookings, SD for Schedule B (Utilities) $101,383.44 be accepted. Passed and approved this 23rd day of September 2008. CITY OF BROOKINGS ________________________________ Scott D. Munsterman, Mayor ATTEST: _________________________ Shari Thornes, City Clerk 7 City Council Packet September 23, 2008 CONSENT AGENDA #4 4C. Action on Resolution No. 80-08, awarding bids for the 2008-10SSI Timberline Detention Pond Grading Project. This project entails construction work on the east detention pond in the Timberline Addition. The work includes final topsoil grading, mucking the bottom of the pond and placing pit run, rip rap, seeding, and installation of a 5-wide concrete valley gutter in the bottom of the pond. This project has a November 15, 2008 completion date. The Forestry Department will plant trees around the pond, and sidewalk is scheduled to be installed adjacent to the pond in 2009. The plans were mailed to several area contractors. The bid letting was held on Tuesday, September 16, 2008 and the City received the following bids: (Engineer’s Estimate: $47,350.80) Bowes Construction, Brookings, SD $51,905.54 Prussman Contracting, Inc., Brookings, SD $74,685.95 Rounds Construction Company, Inc., Brookings, SD $119,141.90 The low bid was approximately 10% higher than the engineer’s estimate (CDI, Inc.) of $47,350.80. Recommend awarding the contract in the amount of $51,905.54 to Bowes Construction, Inc. Resolution No. 80-08 Resolution Awarding Bids on Project 2008-10SSI Timberline Detention Pond Project Whereas, the City of Brookings opened bids for Project 2008-10SSI Timberline Detention Pond Project on Tuesday, September 16, 2008 at 1:30 pm at Brookings City Hall; and Whereas, the City of Brookings has received the following bids for Project 2008-10SSI Timberline Detention Pond Project: Bowes Construction, Brookings, SD $51,905.54 Prussman Contracting, Inc., Brookings, SD $74,685.95 Rounds Construction Company, Inc., Brookings, SD $119,141.90 Now Therefore, Be It Resolved that the low bid of Bowes Construction, Inc. for $51,905.54 be accepted. Passed and approved this 23rd day of September 2008. CITY OF BROOKINGS ________________________________ ATTEST: Scott D. Munsterman, Mayor _________________________ Shari Thornes, City Clerk 8 City Council Packet September 23, 2008 CONSENT AGENDA #4 4D. Action on Resolution No. 81-08, authorizing the City Manager to sign a Wine operating agreement renewal with Guadalajara’s. The City of Brookings enters into operating agreements for a ten-year period. After five (5) years, that agreement is subject to a five-year renewal. Guadalajara’s, located in the Village Square Mall on 6th Street, entered into an operating agreement with the City in 2003. Resolution No. 81-08 would allow the City Manager to enter into the remaining five years of the agreement. Resolution No. 81-08 Guadalajara’s Wine Operating Agreement BE IT RESOLVED by the City of Brookings, South Dakota, that the City Council hereby approves a Lease Agreement for the Operating Liquor Management Agreement for Wine between the City of Brookings and the Guadalajara’s for the purpose of a liquor manager to operate the on-sale establishment or business for and on behalf of the City of Brookings at Village Square Mall #1. BE IT FURTHER RESOLVED that the City Manager be authorized to execute the Agreement on behalf of the City, which shall be for a period of five (5) years and renewal for another five (5) years. Passed and approved this 23rd day of September 2008. CITY OF BROOKINGS Scott D. Munsterman, Mayor ATTEST: Shari Thornes, City Clerk 9 City Council Packet September 23, 2008 CONSENT AGENDA #4 4E. Action to cancel the November 11th council meeting. City Council action is required to hold a special meeting or cancel a meeting. A number of Council members will be attending the Annual National League of Cities from November 10-14. This action will cancel the November 11th council meeting. The following is the revised council schedule for the remainder of 2008: October 14, October 28, November 18, December 9 and December 16. 10 City Council Packet September 23, 2008 CONSENT AGENDA #4 4F. Action on Resolution No. 82-08, a Resolution Authorizing Change Order (CCO#1 Final) for 2008 purchase of concrete sand for Edgebrook Executive Nine Greensoil Mix, Contract Date August 12, 2008 to L.G. Everist, Inc., Brookings, SD. A routine Change Order to reflect actual quantities delivered for materials bid on August 5, 2008. Bid was based on an estimate of quantity. RESOLUTION NO. 82-08 A Resolution Authorizing Change Order (Cco#1 Final) For 2008 Purchase Of Concrete Sand For Edgebrook Executive Nine Greensoil Mix, Contract Date August 12, 2008 To L.G. Everist, Inc., Brookings, Sd ORIGINAL CONTRACT BID PRICE 900 ton concrete sand @ $7.50 per ton = $6,750.00 ACTUAL QUANTITY PURCHASED 891.98 ton concrete sand @ $7.50 per ton = $6,689.85 REDUCTION TO CONTRACT $ 60.15 BE IT RESOLVED by the City Council that the following Change Order be allowed for purchase of concrete sand: CCO Number 1 (Final) – Adjust contract with a reduction of $60.15 Passed and approved this 23rd day of September, 2008. CITY OF BROOKINGS ___________________________ Scott Munsterman, Mayor ATTEST: ____________________________ Shari Thornes, City Clerk 11 City Council Packet September 23, 2008 CONSENT AGENDA #4 4G. Action on Resolution No. 83-08, A Resolution Concurring in the Placement of Stop Signs at the Intersection of 8th Street and 13th Avenue. The City received a request from South Dakota State University to install stop signs at the intersection of 8th Street and 13th Avenue, to form a 4-way controlled intersection. This intersection currently has stop signs on 13th Avenue, as the vehicles approach 8th Street. Currently, there are no stop signs on 8th Street at this intersection. SDSU has been making internal campus changes to become a more pedestrian friendly campus. One recent change was to vacate a portion of 12th Avenue, north of 8th Street. SDSU now routes vehicles toward 13th Avenue where they may enter onto the campus, and pedestrians are also encouraged to enter the campus using the sidewalks along 13th Avenue. 12th Avenue is completely blocked off north of 8th Street, and vehicles can no longer enter the campus on 12th Avenue. This change has created traffic back-ups both for the east bound vehicles on 8th Street, and the north and south bound vehicles on 13th Avenue. However, as of this memo, there have not been any serious accidents at this intersection due to this change. The Traffic Safety Committee discussed this request at their September 11th, 2008 meeting. The committee discussed the traffic flows at the 8th Street & 13th Avenue intersection, and reviewed the Manual of Uniform Traffic Control Devices, Section 2B.05, Stop Sign Applications. The committee felt this intersection justified the need for 4-way stop signs because of the following reasons: • need to control left-turn conflicts • need to control vehicle/pedestrian conflicts near locations that generate high pedestrian volumes • an intersection of two residential neighborhood collector (through) streets of similar design and operating characteristics where a multiway stop control would improve traffic operational characteristics of the intersection Because of these needs, the Traffic Safety Committee voted unanimously to approve 4- way stop signs at the intersection of 8th Street and 13th Avenue. This resolution will authorize the installation of two new stop signs at the intersection of 8th Street and 13th Avenue. 12 City Council Packet September 23, 2008 Resolution No. 83-08 Concurring in the Placement of Stop Signs at the intersection of 8th Street and 13th Avenue WHEREAS, Section 82-373 of the Revised Ordinance of the City of Brookings, provides for approval by the City Council for placement of stop signs in locations other than along through streets. NOW, THEREFORE, BE IT RESOLVED that the City Council concurs in the recommendation of the Traffic Safety Committee and the City Manager and approves the placement of stop signs on 8th Street at its intersection with 13th Avenue. Passed and approved this 23rd day of September 2008. CITY OF BROOKINGS ________________________ Scott D. Munsterman, Mayor ATTEST: ________________________ Shari Thornes, City Clerk 13 City Council Packet September 23, 2008 BROOKINGS TRAFFIC SAFETY COMMITTEE City Hall meeting room Thursday, September 11, 2008 12:10 p.m. The Brookings Traffic Safety Committee held its monthly meeting on Thursday, September 11, 2008, at 12:10 pm in the City Hall meeting room. Members Present: Brad Whaley, Skip Webster, Jackie Lanning, Connie Bridges, Daryl Englund, Louis Skubic, Matthew Nelson, Members Absent: Dennis Bielfeldt, Tim Heaton, Brian Lueders, Keith Bruinsma, Becky Thompson, and Mike Fossum. Others Present: Bryan Gums, Dean Kattleman, Jim Weiss Call to Order: Daryl called the meeting called to order. Jackie/Brad moved to approve minutes of the July 10th meeting. All present voted aye. Motion carried. New Business: • Request to install 4-way stop signs at 8th Street and 13th Avenue. City Engineer Jackie Lanning passed out a map showing the 8th Street and 13th Avenue area. SDSU made a request and Dean Kattleman discussed the overall SDSU master plan and the goal to become a pedestrian friendly campus. Kattleman stated that vehicles entering the core of campus need to enter through 13th Avenue. He stated that this will be the only way you will be able to enter and exit the heart of campus. Vehicles will also be able to enter at other areas such as 16th Avenue and 11th Street. SDSU would like to see a four-way stop sign at the corner of 8th and 13th Avenue. He stated that is nearly impossible to turn left on 8th Street onto 13th Avenue and vehicles also have a difficult time heading north and south on 13th Avenue and 8th Street. He stated that from 7:45am until 8:30am, at noon and at 4:00pm are the most difficult times for vehicular traffic. SDSU is continuing to grow and SDSU is also planning a new 450 person dormitory in that area which will add even more congestion to that corner. Kattleman felt a 4- way stop sign at the intersection of 8th Street and 13th Avenue will create a better flow of traffic. He also mentioned that all of the SDSU advertisements in conjunction with the City are advertising the traffic route into campus is 6th Street to Medary Avenue to 8th Street, and east on 8th Street to 13th Avenue. SDSU does not want to route vehicles through any more residential areas. SDSU also encourages vehicles to use Medary Avenue or use 22nd Avenue. Whaley mentioned that 8th Street is a very busy street and he can see a real need for a four way stop at 13th Avenue. Skubic also mentioned that there is also a lot of pedestrian traffic in that area too. Bridges asked if the committee was okay with having stop signs at both 12th Avenue and 13th Avenue. Kattleman thought that both intersections having 4-way stop signs will actually make traffic flow more smoothly. Chief Gums asked if 9th Street will be open to get to administration building and Katteman stated yes. Vehicles would use 13th Avenue and then turn left onto 9th street for right now, but in a year from now 9th Street will probably be closed. Lanning passed out the MUTCD chapter on four way stop signs. Our city ordinance requires us to use the MUTCD manual for placement of traffic controls. Lanning mentioned that the MUTCD is a guide on traffic signing but it is not mandatory. They are guides so people can make decisions equally in municipalities. Lanning noted that warrant “D: An intersection of two 14 City Council Packet September 23, 2008 residential neighborhood collector (through) streets of similar design and operating characteristics where multiway stop control would improve traffic operational characteristics of the intersection”. Lanning felt is intersection would have similar design and operating characteristics where multiway stop control would improve traffic operational characteristics of the intersection. This would be the situation for the north/south vehicles on 13th Avenue trying to cross 8th Street. She talked to an engineer from HDR in Sioux Falls and asked if they always do a traffic study when they do four way stop signs. She was concerned that MUTCD refers to a traffic study with traffic counts and we don’t have that data or an engineering study for this situation. She wanted to be cautious because we wouldn’t want an accident to cause a liability situation. The people from HDR said that most times they do an engineering study for traffic warrants although it is not required. If you don’t have the traffic study, they recommended to have good press releases and good advertisements. Lanning said that you should normally meet several warrants and not just one. Kattleman felt this situation meets two or three warrants. The other warrants that would apply in this situation were: • need to control left-turn conflicts • need to control vehicle/pedestrian conflicts near locations that generate high pedestrian volumes Whaley also agreed with Kattleman, and the committee discussed the three warrants. Englund thought we should make sure City Manager Weldon concurred with the committee’s recommendation. Lanning clarified that the committee seemed to be in agreement with the warrants under A, B, and D stated above. Skubic/Whaley made the motion to place a four way stop at the intersection of 8th street and 13th avenue. All present voted aye. Motion carried. 15 City Council Packet September 23, 2008 Presentations/Reports/Special Requests: 5. INVITATION FOR A CITIZEN TO SCHEDULE TIME ON THE COUNCIL AGENDA FOR AN ISSUE NOT LISTED. At this time, any member of the public may request time on the agenda for an item not listed. Items are typically scheduled for the end of the meeting; however, very brief announcements or invitations will be allowed at this time. 6. SDSU REPORT. 16 City Council Packet September 23, 2008 Ordinances – 1st Readings **: ** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced. 7. Ordinance No. 38-08, An Ordinance Amending Section 6- 4 of the Revised Ordinances of the City of Brookings and pertaining to the Sale of Alcoholic Beverages on Sunday in the City of Brookings. Public Hearing: October 14th Attached for first reading are amendments to the Sunday Sales Ordinance pertaining to the sale and consumption of alcohol within the City limits of Brookings. The revisions were prepared by the City Attorney and reviewed in draft form at the City Council’s September 9th work session. Note that the draft changed from that review. Pursuant to earlier discussions of the Liquor Ad Hoc Committee, the start time was revised from 11:00 a.m. to 10:00 a.m. to accommodate various special promotions currently provided by local businesses (“champagne brunch”). Sec. 6-4. Sunday sales permitted by the holders of operating agreements light wine licenses, the municipal off-sale licensee and off-sale malt beverage and certain other licensees. (a) Notwithstanding any of the other provisions of this chapter, any holder of an operating agreement may sell, serve and allow to be consumed on the premises covered by their operating agreement, alcoholic beverages between the hours of 10:00 a.m. 11:00 a.m. and 12:00 midnight on Sunday with the serving of food where the holder of the operating agreement who applies for a Sunday sales permit has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least 50 patrons. (c) (b) Notwithstanding any of the other provisions of this chapter, any holder of retail malt beverage license or on-sale wine license may sell, serve and allow to be consumed on the premises covered by their license, malt beverages and wine between the hours of 10:00 a.m. 11:00 a.m. and 12:00 midnight on Sunday. (e) Notwithstanding any other provisions of this chapter, any holder of a special malt beverage retailers’ license and a special retail on-sale wine dealers’ license may sell, serve and allow to be consumed on the premises on Sunday between the hours of 10:00 a.m. and 12:00 midnight on Sunday for consumption on the premises where sold. 17 City Council Packet September 23, 2008 ORDINANCE NO. 38-08 An Ordinance Amending Section 6-4 Of The Revised Ordinances Of The City Of Brookings And Pertaining To The Sale Of Alcoholic Beverages On Sunday In The City Of Brookings. Be It Ordained And Enacted By The Council Of The City Of Brookings, State Of South Dakota, As Follows: I. Sec. 6-4. Sunday sales permitted by the holders of operating agreements light wine licenses, the municipal off-sale licensee and off-sale malt beverage and certain other licensees. (a) Notwithstanding any of the other provisions of this chapter, any holder of an operating agreement may sell, serve and allow to be consumed on the premises covered by their operating agreement, alcoholic beverages between the hours of 10:00 a.m. 11:00 a.m. and 12:00 midnight on Sunday with the serving of food where the holder of the operating agreement who applies for a Sunday sales permit has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least 50 patrons. (b) Notwithstanding any of the other provisions of this chapter, any owner or operator of a restaurant which holds a license as an on-sale dealer in wine for Sunday under SDCL 35-4-2(12) may sell, serve and allow to be consumed on the premises covered by the license, the beverages permitted by such license, between 12:00 p.m. and 12:00 midnight on Sunday with the serving of food. The term “restaurant” as used in this section shall mean only a room regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation which has suitable table accommodations for at least 50 guests therein at one and the same time, and a kitchen connected therewith containing conveniences for cooking sufficient to provide meals in a bona fide manner for 50 guests at one and the same time. (c) (b) Notwithstanding any of the other provisions of this chapter, any holder of retail malt beverage license or on-sale wine license may sell, serve and allow to be consumed on the premises covered by their license, malt beverages and wine between the hours of 10:00 a.m. 11:00 a.m. and 12:00 midnight on Sunday. (d) (c) The municipal off-sale licensee and licensed off-sale malt beverage and off-sale wine retailers may sell and allow to be sold malt beverages and wine on Sunday after 7:00 o’clock a.m. for consumption off the premises where sold. (d) Notwithstanding any other provisions of this chapter, any holder of a special off-sale package wine dealers license may sell and allow to be sold wine manufactured by a farm winery that is licensed pursuant to Chapter 35-12 on Sunday after 7:00 a.m. for consumption off the premises where sold. 18 City Council Packet September 23, 2008 (e) Notwithstanding any other provisions of this chapter, any holder of a special malt beverage retailers’ license and a special retail on-sale wine dealers’ license may sell, serve and allow to be consumed on the premises on Sunday between the hours of 10:00 a.m. and 12:00 midnight on Sunday for consumption on the premises where sold. (f) Except as permitted in this section, no person within the city shall sell, offer for sale, serve or allow to be consumed on the premises covered by a state license any alcoholic beverages on Sunday. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: September 23, 2008 SECOND READING: October 14, 2008 PUBLISHED: October 17, 2008 CITY OF BROOKINGS, SOUTH DAKOTA Scott D. Munsterman, Mayor ATTEST: Shari Thornes, City Clerk 19 City Council Packet September 23, 2008 -- Clean Copy -- ORDINANCE NO. 38-08 An Ordinance Amending Section 6-4 Of The Revised Ordinances Of The City Of Brookings And Pertaining To The Sale Of Alcoholic Beverages On Sunday In The City Of Brookings. Be It Ordained And Enacted By The Council Of The City Of Brookings, State Of South Dakota, As Follows: I. Sec. 6-4. Sunday sales permitted by the holders of operating agreements and certain other licensees. (a) Notwithstanding any of the other provisions of this chapter, any holder of an operating agreement may sell, serve and allow to be consumed on the premises covered by their operating agreement, alcoholic beverages between the hours of 10:00 a.m. and 12:00 midnight on Sunday with the serving of food where the holder of the operating agreement who applies for a Sunday sales permit has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least 50 patrons. (b) Notwithstanding any of the other provisions of this chapter, any holder of retail malt beverage license or on-sale wine license may sell, serve and allow to be consumed on the premises covered by their license, malt beverages and wine between the hours of 10:00 a.m. and 12:00 midnight on Sunday. (c) The municipal off-sale licensee and licensed off-sale malt beverage and off-sale wine retailers may sell and allow to be sold malt beverages and wine on Sunday after 7:00 o’clock a.m. for consumption off the premises where sold. (d) Notwithstanding any other provisions of this chapter, any holder of a special off- sale package wine dealers license may sell and allow to be sold wine manufactured by a farm winery that is licensed pursuant to Chapter 35-12 on Sunday after 7:00 a.m. for consumption off the premises where sold. (e) Notwithstanding any other provisions of this chapter, any holder of a special malt beverage retailers’ license and a special retail on-sale wine dealers’ license may sell, serve and allow to be consumed on the premises on Sunday between the hours of 10:00 a.m. and 12:00 midnight on Sunday for consumption on the premises where sold. II. Any or all ordinances in conflict herewith are hereby repealed. 20 City Council Packet September 23, 2008 FIRST READING: September 23, 2008 SECOND READING: October 14, 2008 PUBLISHED: October 17, 2008 CITY OF BROOKINGS, SOUTH DAKOTA Scott D. Munsterman, Mayor ATTEST: Shari Thornes, City Clerk 21 City Council Packet September 23, 2008 Ordinances – 1st Readings **: ** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced. 8. Ordinance No. 39-08, An Ordinance establishing a conditional use to establish an apartment on the W ½ of the W ½ of Lots 1 – 4, excluding Lot H-1, Block 11, Skinners Second Addition (1016 6th Street). Public Hearing: October 14th Applicant: VPMN Partners Proposal: Construct a mixed use commercial building with offices and an apartment Background: A single-family dwelling has existed on this lot for many years. The remaining north half of this block has a bank, a movie rental store, an office/apartment use and two residences. The entire half block is zoned B-2. Specifics: The B-2 District permits an office use, by right, and an apartment by conditional use. The proposal is to have offices on the main level with up front parking. The second level will have an apartment with parking off the alley. An existing approach off 6th Street would be shared by the bank and office. Adjacent properties consist of a mix of retail, office, and residential uses. This proposed use would be similar, and the impact of the development on the adjacent properties would likely be minimal given its design and size. Recommendation: The Planning Commission voted 0 yes and 4 no, with one abstention, to recommend that this Conditional Use not be approved. 22 City Council Packet September 23, 2008 Ordinance No. 39-08 An ordinance pertaining to an application for a Conditional Use for an apartment use in the Business B-2 District. Be it ordained by the governing body of the City of Brookings, South Dakota that said Conditional Use shall be approved for an apartment on the West ½ of the West ½ of Lots 1, 2, 3, and 4, Block 11, Skinner’s Second Addition with the following conditions: None All sections and ordinances in conflict herewith are hereby repealed. FIRST READING: September 23, 2008 SECOND READING: October 14, 2008 PUBLISHED: CITY OF BROOKINGS __________________________ Scott D. Munsterman, Mayor ATTEST: __________________________ Shari Thornes, City Clerk 23 City Council Packet September 23, 2008 Planning Commission Brookings, South Dakota September 2, 2008 OFFICIAL MINUTES Chairperson Greg Fargen called the regular meeting of the City Planning Commission to order on September 2, 2008 at 7:00 PM in the Council Chamber at City Hall. Members present were, Al Gregg, Al Heuton, Curt Ness, Larry Fjeldos, and Fargen. Stacey Howlett, Mike Cameron, David Kurtz, and John Gustafson, were absent. Also present were Wade Price, Colleen Vukovich, City Engineer Jackie Lanning, City Manager Jeff Weldon, Toby Morris, Wayne Wagner, Beverly Dobbs, City Planner Dan Hanson, and others. Item #4 – VPMN Partners has submitted an application for a Conditional Use on the following described real estate: the west 1/2, W 1/2 of Lots 1, 2, 3, and 4, excluding Lot H-1, Block 11, Skinner's Second Addition, also known as 1016 6th Street. The request is to establish an apartment use in the Business B-2 District. (Ness/Heuton) Motion to approve the conditional use. (Heuton/Ness) Amendment to the motion to require a landscape area abutting 6th Street to include a 30 to 40 square foot area for plantings. Ness and Heuton voted aye. Gregg and Fjeldos voted no. Fargen abstained. AMENDMENT FAILED. The motion was voted on. All present voted no except Fargen abstained. MOTION FAILED. SUMMARY OF DISCUSSION Item #4 – Wade Price, representing VPMN Partners, stated the apartment would be on the second floor and contain three (3) bedrooms. Heuton was concerned about the location of the building on the lot. He also felt the community’s image was important regarding the redevelopment of the block. He recommended that approval should be subject to additional landscape requirements since the block had little landscaping now. Price noted that he would like to save the evergreen tree, but the elm trees would go. Fargen asked if parking off the alley was for the apartment. Price replied yes. Fjeldos felt the project was too large for this size lot. He favored clustering businesses in other areas versus packing them in on 6th Street. Fargen remarked that the current number of property owners on the half-block was too numerous to think that a unified plan could be attained. Colleen Vukovich, another partner, stated their project would make the block more attractive, but they could not control other properties. 28 City Council Packet September 23, 2008 Ordinances – 1st Readings **: ** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced. 9. Ordinance No. 40-08, An Ordinance rezoning Lot 3, Nelson Eighth Addition from an Agricultural A District to a Residence R-1B District (15th Street South and Medary Avenue area). Public Hearing: October 14th Applicant: City of Brookings Proposal: Establish a low-density residential district Background: The City of Brookings purchased this property from an abutting landowner in 1998. Land to the north, west, and southwest has been developed for low- density residential uses. Land to the east is in a high-density district but is currently undeveloped. Specifics: The lot contains 3.3 acres and fronts on 15th Street South. An R-1B District designation would allow for four to possibly eight housing units depending upon the subdivision design. It would also be compatible with adjacent land use patterns. An existing drainageway would need to be retained along the east side. A drainage easement over this area would be established prior to the sale of the property. Recommendation: The Planning Commission voted 5 yes and 0 no to recommend approval of the rezoning. 29 City Council Packet September 23, 2008 Ordinance No. 40-08 An Ordinance To Change The Zoning Within The City Of Brookings: BE IT ORDAINED BY THE CITY OF BROOKINGS, SOUTH DAKOTA: Section 1. That the real estate situated in the City of Brookings, County of Brookings, State of South Dakota, described as follows, to-wit: Lot 3, Nelson Eighth Addition be and the same is hereby rezoned and reclassified from a/an Agricultural A District to a Residence R-1B District. In accordance with Section 94-7 of Article I of Ordinance 25-02 of the Code of Ordinances of Brookings, South Dakota, as said districts are more fully set forth and described in Articles III and IV, Chapter 94 of Ordinance No. 25-02 of the City of Brookings, South Dakota. Section 2. The permitted use of the property heretofore described be and the same is hereby altered and changed in accordance herewith pursuant to said Ordinance No. 25-02 of the City of Brookings, South Dakota. Section 3. All sections and ordinances in conflict herewith are hereby repealed. FIRST READING September 23, 2008 SECOND READING AND ADOPTION: October 14, 2008 PUBLISHED CITY OF BROOKINGS ________________________ ATTEST: Scott D. Munsterman, Mayor _________________________ Shari Thornes, City Clerk 30 City Council Packet September 23, 2008 Planning Commission Brookings, South Dakota September 2, 2008 OFFICIAL MINUTES Chairperson Greg Fargen called the regular meeting of the City Planning Commission to order on September 2, 2008 at 7:00 PM in the Council Chamber at City Hall. Members present were, Al Gregg, Al Heuton, Curt Ness, Larry Fjeldos, and Fargen. Stacey Howlett, Mike Cameron, David Kurtz, and John Gustafson, were absent. Also present were Wade Price, Colleen Vukovich, City Engineer Jackie Lanning, City Manager Jeff Weldon, Toby Morris, Wayne Wagner, Beverly Dobbs, City Planner Dan Hanson, and others. Item #6 – The City of Brookings has submitted a petition to rezone Lot 3, Nelson Eighth Addition from an Agricultural A District to a Residence R-1B District. (Heuton/Fjeldos) Motion to approve the rezoning. All present voted aye. MOTION CARRIED. SUMMARY OF DISCUSSION Item #6 – Hanson stated that the 3.3 acre parcel was considered surplus land. The city would prefer to rezone it prior to any sale. A drainage easement would be retained along the east side. 31 City Council Packet September 23, 2008 Sec. 94-125 RESIDENCE R-1B SINGLE-FAMILY (a) Intent. This district is intended to provide for areas of residential use with a gross density of approximately five dwelling units per acre or less. The district permits single-family dwellings and supportive community facilities such as parks, playgrounds, schools, libraries and churches. (b) Scope of Regulations. The regulations set forth in this section or set forth elsewhere in this title, when referred to in this section, are the district regulations of the Residence R-1B Single-Family District. (c ) Permitted Uses. Single-family dwelling including accessory uses incidental thereto such as private garages, parking areas, etc. (d) Permitted Special Uses. A building or premises may be used for the following purposes in conformance with conditions prescribed herein: 1. All permitted special uses and conditions as stated in Section 94-124(d)(R-1A). 2. Private school of general instruction. a. One of the frontages of the premises shall abut upon an arterial or collector street. 3. Family day care. a. Restricted to 12 or less children at any one time. (e) Conditional Uses. 1. Vocational or trade school 2. Retirement or nursing home 3. Two family dwelling 4. Group home 5. Major home occupation 6. Public recreation facility 7. Non-municipal library, museum, art gallery, 8. Private lake 9. Bed and breakfast establishment (f) Density, Area, Yard and Height Regulations. The R-1B district regulations shall be as follows: Per Min Min Min Min Min Max Unit Lot Lot Front Side Rear Hgt Density Area Width Yard Yard Yard Sq.Ft. Sq.Ft. Single-Family 10,000 10,000 75' 30' 8' 25' 35' Two-Family 6,200 12,400 90' 30' 8' 25' 35' Other Allowable Uses 10,000 75' 30' 10' 25' 35' Density per family requirements shall not apply to dormitories, fraternities, sororities, nursing homes or other similar group quarters where no cooking facilities are provided in individual rooms (g) Accessory Uses. Accessory uses and building permitted in the R-1B District are buildings and uses customarily incidental to any of the permitted uses in the district. 35 City Council Packet September 23, 2008 (h) Parking Regulations. Parking, loading and stacking within the R-1B District shall be in conformance with the regulations set forth in division 4 of article VI of this chapter (i) Sign Regulations. Signs within the R-1B District shall be in conformance with the regulations set forth in division 5 of article VI of this chapter (j) Other Regulations. Development within the R-1B District shall be in conformance with the regulations set forth in article II of this chapter 36 City Council Packet September 23, 2008 Public Hearings, Second Readings, Ordinances: 10. Ordinance No. 37-08, an ordinance providing for the sale and consumption of alcoholic beverages upon property adjoining a licensed premises in the City of Brookings, South Dakota (Sidewalk Sales). This ordinance is pursuant to another change in state law related to alcohol laws. Former House Bill 1203 allows a city or county to allow for the On-Sale Licensee to have the sale and consumption of alcoholic beverages on sidewalks and walkways that abut the building of the licensed premise. A local ordinance must be passed before the City can allow for sidewalk sales. City Attorney Steve Britzman prepared the enclosed ordinance, with input from various city staff, to provide for this service. The Liquor Ad Hoc Committee has reviewed the ordinance and provided comments. NOTE that this ordinance has been revised by the City Attorney and staff from first reading to the current form to provide consistency with other city ordinances. Action: Motion to approve, request public comment, roll call City Manager Recommendation - Approve 37 City Council Packet September 23, 2008 ORDINANCE NO. 37-08 An Ordinance Providing For The Sale And Consumption Of Alcoholic Beverages Upon Property Adjoining A Licensed Premises In The City Of Brookings, South Dakota. Be It Ordained And Enacted By The Council Of The City Of Brookings, State Of South Dakota, As Follows: I. Sec. 6-9. Sidewalk Café Alcoholic Beverage Sales and Consumption regulations (a) General Provisions. 1. Any holder of an operating agreement, on-sale malt beverage license or on-sale wine license may apply for a sidewalk café permit for the sale and consumption of alcoholic beverages which the licensee is authorized to sell on a sidewalk or walkway subject to a public right-of-way abutting a licensed premises, provided that the license holder derives more than fifty percent of its gross receipts from the sale of prepared food for consumption on the licensed premises. 2. The sidewalk or walkway subject to a public right-of-way shall be immediately adjacent to and abutting the licensed premises. 3. This section does not apply to any Federal-aid eligible highway unless approved in accordance with the applicable requirements for the receipt of Federal aid. 4. The hours of authorized sale and consumption on the sidewalk or walkway subject to a public right-of-way as provided by this section shall be consistent with the hours permitted for the license held by the sidewalk café permittee. 5. A violation of any provision of Title 35 by an alcoholic beverage license holder conducting business on a sidewalk or walkway subject to a public right-of-way pursuant to this section constitutes a violation of Title 35 as if the violation had occurred in or on the licensed premises. (b) Definition. Sidewalk Café. A sidewalk café is an outdoor area located on a public sidewalk or walkway which is operated and maintained by an establishment, coffeehouse, tea shop, restaurant or bar. 38 City Council Packet September 23, 2008 (c) Applicable Procedure. 1. An application for a sidewalk café permit shall be filed with the City Clerk. There shall be a one-time application fee of $100.00. The application shall include a site plan which identifies the location of tables, chairs, umbrellas, trash receptacles, heaters and barricades. 2. A. The location of the sidewalk café must be directly in front of the business operating the café, and may not extend beyond the side property lines. A unobstructed path of travel with a minimum width of four (4) feet shall be REQUIRED for the general public upon the public sidewalk. Tables, chairs, benches and food and beverage carts and equipment shall be located so that they do not impede, endanger or interfere with pedestrian traffic, with a minimum width of six (6) feet of unobstructed passage for pedestrian traffic on Main Avenue and a minimum width of four (4) feet of unobstructed passage for pedestrian traffic on side streets. B. Equipment of the sidewalk café may not be attached permanently to the sidewalk or public right-of-way. No fixtures or devices on which food or beverages are sold or consumed shall be attached to the sidewalk or other public area. The property owner is responsible for the restoration of the sidewalk or public right-of-way if any damage is caused by the sidewalk café. Physical barriers may not exceed four feet in height. Bolting a barrier to the sidewalk is not considered permanent as long as the method of bolting allows the barrier and the bolts to be readily removed. C. Lighting for sidewalk cafes is subject to approval during the permitting process. Tabletop lighting may include candles and battery-operated fixtures. D. Physical barricades are required if alcoholic beverages are sold at the sidewalk café. 3. All services provided to sidewalk café patrons as well as all patron activity must occur within the designated sidewalk café area. No alcoholic beverages may be stored or mixed in the sidewalk café. 4. The permit holder is responsible for proper supervision of the sidewalk café in order to ensure the requirements of this section are met. 5. Every sidewalk café permit holder shall furnish a certificate of insurance proving commercial insurance coverage of at least $1,000,000 for bodily injury, death, disability, and property damage liability. The City of Brookings shall be named as an additional insured on a primary, noncontributory basis for any liability arising directly or indirectly from the operation of a sidewalk café. In the event that the insurance is cancelled, the permit holder has 24 hours to reinstate the insurance or the permit shall be revoked. 6. Permit holders must ensure that the requirements for operation are met. These include: A. Patrons must wear shoes and shirts at all times. 39 City Council Packet September 23, 2008 B. All sidewalk cafes must maintain at least one opening for ingress and egress at all times. All sidewalk cafes shall abide by all requirements of the currently adopted International Building Code and the American’s with Disabilities Act. C. To the extent applicable, sidewalk cafes must adhere to all regulations of the City pertaining to food and beverage service as set forth in Ordinance Section 74-40. 7. All areas within and surrounding a sidewalk café must be maintained in a clean, neat, and sanitary condition. 8. All permit holders shall be required to abide by all federal, state, and local laws. 9. A sidewalk café permit may be revoked for failure to maintain the standards required for the initial permit. A notice of intent to revoke a sidewalk café permit shall be given in writing 10 days prior to actual revocation and shall specify the area or areas of continued failure to meet requirements and maintain conditions the city may have imposed. If, during that period, proof of compliance is made by the holder of the permit, the permit shall be continued in force. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: September 9, 2008 SECOND READING: September 23, 2008 PUBLISHED: September 26, 2008 CITY OF BROOKINGS, SOUTH DAKOTA Scott D. Munsterman, Mayor ATTEST: Shari L. Thornes, City Clerk 40 City Council Packet September 23, 2008 -- Clean Copy -- ORDINANCE NO. 37-08 An Ordinance Providing for the Sale and Consumption of Alcoholic Beverages upon Property Adjoining a Licensed Premises in the City of Brookings, South Dakota. Be It Ordained And Enacted By The Council Of The City Of Brookings, State Of South Dakota, As Follows: I. Sec. 6-9. Sidewalk Café Alcoholic Beverage Sales and Consumption regulations (a) General Provisions. 6. Any holder of an operating agreement, on-sale malt beverage license or on-sale wine license may apply for a sidewalk café permit for the sale and consumption of alcoholic beverages which the licensee is authorized to sell on a sidewalk or walkway subject to a public right-of-way abutting a licensed premises, provided that the license holder derives more than fifty percent of its gross receipts from the sale of prepared food for consumption on the licensed premises. 7. The sidewalk or walkway subject to a public right-of-way shall be immediately adjacent to and abutting the licensed premises. 8. This section does not apply to any Federal-aid eligible highway unless approved in accordance with the applicable requirements for the receipt of Federal aid. 9. The hours of authorized sale and consumption on the sidewalk or walkway subject to a public right-of-way as provided by this section shall be consistent with the hours permitted for the license held by the sidewalk café permittee. 10. A violation of any provision of Title 35 by an alcoholic beverage license holder conducting business on a sidewalk or walkway subject to a public right-of-way pursuant to this section constitutes a violation of Title 35 as if the violation had occurred in or on the licensed premises. (b) Definition. Sidewalk Café. A sidewalk café is an outdoor area located on a public sidewalk or walkway which is operated and maintained by an establishment, coffeehouse, tea shop, restaurant or bar. 41 City Council Packet September 23, 2008 (c) Applicable Procedure. 3. An application for a sidewalk café permit shall be filed with the City Clerk. There shall be a one-time application fee of $100.00. The application shall include a site plan which identifies the location of tables, chairs, umbrellas, trash receptacles, heaters and barricades. 4. A. The location of the sidewalk café must be directly in front of the business operating the café, and may not extend beyond the side property lines. Tables, chairs, benches and food and beverage carts and equipment shall be located so that they do not impede, endanger or interfere with pedestrian traffic, with a minimum width of six (6) feet of unobstructed passage for pedestrian traffic on Main Avenue and a minimum width of four (4) feet of unobstructed passage for pedestrian traffic on side streets. B. No fixtures or devices on which food or beverages are sold or consumed shall be attached to the sidewalk or other public area. The property owner is responsible for the restoration of the sidewalk or public right-of-way if any damage is caused by the sidewalk café. Physical barriers may not exceed four feet in height. C. Lighting for sidewalk cafes is subject to approval during the permitting process. Tabletop lighting may include candles and battery-operated fixtures. D. Physical barricades are required if alcoholic beverages are sold at the sidewalk café. 3. All services provided to sidewalk café patrons as well as all patron activity must occur within the designated sidewalk café area. No alcoholic beverages may be stored or mixed in the sidewalk café. 4. The permit holder is responsible for proper supervision of the sidewalk café in order to ensure the requirements of this section are met. 5. Every sidewalk café permit holder shall furnish a certificate of insurance proving commercial insurance coverage of at least $1,000,000 for bodily injury, death, disability, and property damage liability. The City of Brookings shall be named as an additional insured on a primary, noncontributory basis for any liability arising directly or indirectly from the operation of a sidewalk café. In the event that the insurance is cancelled, the permit holder has 24 hours to reinstate the insurance or the permit shall be revoked. 6. Permit holders must ensure that the requirements for operation are met. These include: A. Patrons must wear shoes and shirts at all times. B. All sidewalk cafes must maintain at least one opening for ingress and egress at all times. All sidewalk cafes shall abide by all requirements of the currently adopted International Building Code and the American’s with Disabilities Act. 42 City Council Packet September 23, 2008 C. To the extent applicable, sidewalk cafes must adhere to all regulations of the City pertaining to food and beverage service as set forth in Ordinance Section 74-40. 10. All areas within and surrounding a sidewalk café must be maintained in a clean, neat, and sanitary condition. 11. All permit holders shall be required to abide by all federal, state, and local laws. 12. A sidewalk café permit may be revoked for failure to maintain the standards required for the initial permit. A notice of intent to revoke a sidewalk café permit shall be given in writing 10 days prior to actual revocation and shall specify the area or areas of continued failure to meet requirements and maintain conditions the city may have imposed. If, during that period, proof of compliance is made by the holder of the permit, the permit shall be continued in force. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: September 9, 2008 SECOND READING: September 23, 2008 PUBLISHED: September 26, 2008 CITY OF BROOKINGS, SOUTH DAKOTA Scott D. Munsterman, Mayor ATTEST: Shari L. Thornes, City Clerk 43 City Council Packet September 23, 2008 Public Hearings, Second Readings, Ordinances: 11. Ordinance No. 36-08, an ordinance amending and revising various building, property maintenance and nuisance ordinances of the City of Brookings, South Dakota. Staff and City Attorney Britzman have reviewed the current ordinances pertaining to code enforcement. The changes more clearly define who has the authority to execute and enforce the regulations, and identify the manner of abatement and billing for violations. The following amendments are being proposed: Chapter 22: Buildings and Building Regulations The definition of the Building Official was amended to grant enforcement authority to any city official who is designated by the City Manager and charged with the administration or the enforcement of Chapter 22. This allows the phrase “or its authorized representative” to be removed from several paragraphs since it is stated in the definition. The language under Section 22-341 was changed from comparing the level of maintenance to the surrounding properties to whether the condition is “injurious to the health, or to be indecent or offensive to the senses, or to interfere with the comfortable enjoyment of life or property.” This language allows more latitude in determining the level of maintenance required on properties. Chapter 42: Health and Sanitation In general, the language was changed in this chapter to grant enforcement authority to any city official who is designated by the City Manager and charged with the administration or the enforcement of Chapter 42. The language in Section 42-175 was also revised to allow the City to utilize municipal or State law abatement procedures or use of civil action. This would allow the City to determine the best option for abatement. Chapter 62: Parks, Recreation, Vegetation, and Forestry In general, the language was changed in this chapter to grant enforcement authority to any city official who is designated by the City Manager and charged with the administration or the enforcement of Chapter 62. The language was updated to allow the City to bill for the costs of tall and undesirable grass or noxious weeds. The collection of the fees may be recovered through municipal or State law abatement procedures or by use of other collection procedures, including a civil action. Chapter 74: Streets, Sidewalks, and Other Public Places In general, the language was changed to all for the collection of the fees may be recovered through municipal or State law abatement procedures or by use of other collection procedures, including a civil action. This ordinance will adopt these new changes Action: Motion to approve, request public comment, roll call City Manager Recommendation - Approve 44 City Council Packet September 23, 2008 ORDINANCE NO. 36-08 AN ORDINANCE AMENDING AND REVISING VARIOUS BUILDING, PROPERTY MAINTENANCE AND NUISANCE ORDINANCES OF THE CITY OF BROOKINGS, SOUTH DAKOTA. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, THAT THE FOLLOWING SECTIONS OF THE CODE OF ORDINANCES OF THE CITY OF BROOKINGS ARE HEREBY AMENDED AS FOLLOWS: I. CHAPTER 22, BUILDING AND BUILDING REGULATIONS ARTICLE V. PROPERTY MAINTENANCE Division 1. Generally SECTION 22.291. Definitions. Building official means, as used in this article, the director of solid waste management, the housing officer, the fire chief, the building official, their respective authorized representatives, or any other any city official authorized designated by the city manager to enforce city ordinances who shall be charged with the administration and or enforcement of this article. SECTION 22-292. Purpose of article. The purpose of this article is to protect, promote and enhance the welfare, safety, health and property of the general public. by prohibiting the keeping or maintaining of properties at variance with and inferior to the level of maintenance of surrounding properties. (Code 1996, § 10-71) SECTION 22-293. Right of entry. (a) Whenever necessary to make an inspection to enforce any of the provisions of this article, or whenever the building official or its authorized representative has reasonable cause to believe that there exists in any building or upon any premises, any condition which is prohibited under this article, the building official or its authorized representative may enter such building or premises at all reasonable times to inspect or to perform any duty imposed upon the building official by this article; provided, however, that if such building or premises is occupied, the building official shall first present proper credentials and demand entry; and if such building or premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and demand entry. If such entry is refused, the building official or authorized representative shall have recourse to every remedy provided by law to secure entry. (b) No owner or occupant or any other person having charge or care of any building or premises shall fail or neglect, after proper demand made as provided in this section, to properly permit entry therein by the building official or its authorized representative for purpose of inspection and examination pursuant to this article. 45 City Council Packet September 23, 2008 Division 3. Standards and Requirements SECTION 22-341. Maintenance of premises and buildings generally. It shall be unlawful for any person owning, leasing, occupying, or having charge or possession of any buildings or premises in the city to keep or maintain such building or premises in a manner which is at variance with and inferior to the level of maintenance of surrounding properties so as to be injurious to the health, or to be indecent or offensive to the senses, or to interfere with the comfortable enjoyment of life or property. (Code 1996, § 10-73) SECTION 22-342. Enumeration of conditions constituting nuisance. A building or premises is maintained or kept in a manner so as to be injurious to the health, or to be indecent or offensive to the senses, or to interfere with the comfortable enjoyment of life or property. which is at variance with and inferior to the level of maintenance of surrounding properties and is declared to constitute a public nuisance where there exists upon any building or premises any of the following conditions: (1) Buildings which are abandoned, boarded up, partially destroyed or partially constructed and uncompleted subsequent to the expiration of a building permit. (2) Buildings with deteriorating or peeling paint that allows the exterior building coverings to deteriorate or to permit the effects of sun and water penetration so as to encourage decay, dry rot, warping and cracking. (3) Broken windows, doors, attic vents and underfloor vents. (4) Overgrown vegetation which is unsightly and/or likely to harbor rats or vermin. (5) Dead, decayed or diseased trees, weeds and other vegetation. (6) Trash, garbage or refuse cans, bins, boxes, bags or other such containers permanently stored in front yards visible from public streets. (7) Lumber, junk, trash, tires, debris or salvage materials maintained upon any premises which is visible from a public street, alley, or adjoining property. (8) Abandoned, discarded or unused furniture, stoves, sinks, toilets, cabinets or other household fixtures or equipment stored so as to be visible at ground level from a public alley, street or adjoining premises. (9) Premises having a topography, geology or configuration which as a result of grading operations or improvements to the land causes erosion, subsidence, unstable soil conditions or surface or subsurface drainage problems as to pose a threat to or be injurious to adjacent premises. (10) Abandoned, wrecked, dismantled or inoperative trailers, campers, boats and other motor vehicles which are accumulated or stored in yard areas. (11) Building exteriors, walls, fences, driveways, or walkways which are cracked, broken, defective, or deteriorated, in disrepair or defaced. (12) Any like and similar conditions. II. 46 City Council Packet September 23, 2008 CHAPTER 42, HEALTH AND SANITATION ARTICLE IV. NUISANCES AND OFFENSIVE CONDITIONS DIVISION 2. ABATEMENT SECTION 42-171. Notice to abate. (a) Issuance. Whenever the board of health, deputy health officer, zoning officer or director of solid waste management, or any person designated by the city manager who shall be charged with the administration and or enforcement of this article, shall find a nuisance exists within the city, it shall give written notice to the person creating, permitting or maintaining such nuisance to abate the nuisance within a reasonable time as provided in such notice. (b) Noncompliance. It shall be unlawful for any person who is served a written notice to abate a nuisance under the provisions of this article to fail to do so within the time allowed in such notice. (Ord. No. 7-00, §§ 18-39, 18-40, 3-27-2000) SECTION. 42-172. When notice waived. Whenever the owner, occupant or agent of any premises in or upon which any nuisance may be found is unknown or cannot be found, the board of health, deputy health officer, zoning officer or director of solid waste management, or any person designated by the city manager who shall be charged with the administration and or enforcement of this article, may proceed to abate the nuisance without notice. In either case, the expense of such abatement shall be collected from the person who may have created, caused or permitted such nuisance to exist. (Ord. No. 7-00, § 18-41, 3-27-2000) SECTION 42-173. By board and city officials. If a person shall fail to abate any nuisance created, permitted or maintained by them following written notice to them so to do, the board of health, deputy health officer, zoning officer or director of solid waste management, or any person designated by the city manager who shall be charged with the administration and or enforcement of this article, shall cause such nuisance to be abated. (Ord. No. 7-00, § 18-42, 3-27-2000) SECTION 42-175. Recovery of expenses. The city may recover the expenses incurred by the board of health in abating any nuisance under the provisions of this article, including costs and attorney's fees, from the person creating, permitting or maintaining the nuisance through municipal or State law abatement procedures or by use of other collection procedures, including in a civil action suit instituted for such purpose. or by city ordinance or according to SDCL. (Ord. No. 7-00, § 18-44, 3-27-2000) SECTION 42-176. Notice of condemnation of premises unfit for human habitation. (a) Whenever the health officer, deputy health officer, any zoning officer or director of solid waste management or any person designated by the city manager who shall be charged with the administration and or enforcement of this 47 City Council Packet September 23, 2008 article, finds that any house, building or premises within the city constitutes a hazard to the health, safety or welfare of the occupants, or to the public, because it lacks maintenance, or is dilapidated, unsanitary, vermin-infested, rodent-infested, or because it lacks the sanitary facilities and equipment required by the city health and housing maintenance ordinances or state law, they, or either of them, may condemn such building or premises as unfit for human habitation. If any house, building or premises, or any part thereof, (is occupied by more families than provided by the city ordinances, (or is erected, altered or occupied contrary to law, such house, building or premises shall be deemed an unlawful structure) and the health officer, deputy health officer, any zoning officer, or the director of solid waste management may cause such house, building or premises to be vacated. It shall be unlawful to again occupy such building until it or has been made to conform with applicable law or is otherwise fit for human habitation. (b) Any house, building or premises condemned as unfit for human habitation shall be posted with a placard of condemnation by the health officer, the deputy health officer or any zoning officer or by the director of solid waste management, or any person designated by the city manager who shall be charged with the administration and enforcement of this article, (c) Whenever the health officer, deputy health officer, zoning officer or director of solid waste management, or any person designated by the city manager who shall be charged with the administration and or enforcement of this article, has condemned a house, building or premises as unfit for human habitation, notice shall be given to the owner of such condemnation and the building or premises shall be placarded as unfit for human habitation. Such notice shall: (1) Be in writing; (2) Include a description of the real estate sufficient for identification; (3) Include a statement of the reasons why it is being issued; (4) Include a description of the repairs and improvements required to bring the condemned house, building or premises into compliance with the provisions of health, housing maintenance or other applicable ordinances of the city or state of South Dakota. (d) Service of notice of condemnation shall be made by delivery to the owner personally, or by depositing the notice in the United States mail, addressed to the owner at its last known address, or by posting and keeping posted for 24 hours, a copy of such notice in placard form in a conspicuous place on the condemned premises. (Ord. No. 7-00, § 18-48, 3-27-2000) SECTION 42-177. Vacation of condemned houses, buildings or premises. Any house, building or premises which has been condemned and placarded as unfit for human habitation by the health officer, deputy health officer, any zoning officer or director of solid waste management, or any person designated by the city manager who shall be charged with the administration and or enforcement of this article, shall be vacated within a reasonable time as required. No person shall occupy any house, building or premises which has been condemned and placarded by the health officer, deputy health officer, any zoning officer or director of solid waste management enforcing officer or its 48 City Council Packet September 23, 2008 representative after the date set forth in the placard of condemnation. No person shall deface or remove the placard from any dwelling or dwelling unit which has been condemned and placarded as "unfit for human habitation." Such placard shall only be removed by the enforcing officer or its representative. (Ord. No. 7-00, § 18-49, 3-27-2000) SECTION 42-178. Right of appeal from health official's determination. The owner or any other person affected by a determination that a house, building or premises has been condemned as unfit for human habitation shall have a right of appeal to the board of health for investigation and review of the determination of condemnation. Such appeal shall be in writing, shall state the objections of the person filing the appeal, shall be filed with the city clerk within the ten days after the date of either posting, publishing, serving or mailing of the notice of condemnation, and shall be presented to the board of health at its next regular meeting. The board of health shall determine by resolution whether the city official proceeded correctly, or whether any modification is necessary, and its decision shall be final and conclusive. (Ord. No. 7-00, § 18-50, 3-27-2000) Secs. 42-179--42-210. Reserved. SECTION 42-179. Historic Landmarks. Prior to the abatement of any nuisance upon property, it shall be determined whether the property has been designated as a state, local or national historic property. If it is determined that the property which is the subject of nuisance abatement is a state, local or national historic property, then the abatement may proceed provided the provisions of Article III of Chapter 46 of the Code of Ordinances are addressed prior to the commencement of nuisance abatement procedures. III. CHAPTER 62 PARKS, RECREATION, VEGETATION AND FORESTRY ARTICLE III. VEGETATION DIVISION 2. WEED CONTROL* SECTION 62-87. Notice to remove weeds or grass. The director of parks and recreation, The A code enforcement officer or any person designated by the city manager who shall be charged with the administration and or enforcement of this article is authorized to notify, by any reasonable means, provide written notice to the owner of any such lot, place or area within the city, or the agent of such owner or the occupant of such premises, to cut, destroy or remove any such nuisance weeds or grass found growing, lying or located on such property or upon the sidewalk abutting same. Such notice shall be by certified first class mail addressed to the last house address of such owner, agent or occupant. (Code 1996, § 26-32) 49 City Council Packet September 23, 2008 SECTION 62-88. Action upon noncompliance. Upon failure, neglect or refusal of any owner, agent or occupant notified to comply with the provisions of this division within five days after the mailing thereof, the a director of parks and recreation code enforcement officer or any person designated by the city manager who shall be charged with the administration and or enforcement of this article is authorized and empowered to provide for the cutting, destroying or removal of such weeds or grass and to defray the cost of the destruction thereof by billing the owner, agent or occupant or by special assessment use of other collection procedures , including civil action, as provided in this division. Code 1996, § 26-33) SECTION 62-89. Costs for grass and weed removal subject to collection. (a) The director of parks and recreation city manager or a city official designated by the city manager shall cause an account to be kept maintained against each lot for the destruction of tall and undesirable grass or noxious weeds upon such lot under the provisions of this division. Failure to remit payment of the balance of the account within 30 days of billing shall constitute a violation of this division, and the property owner or occupant shall be subject collection procedures in accordance with this division. (b) In the event of special assessment, the city clerk shall thereupon add such assessment to the general assessment against such property and shall certify such special assessment together with the regular assessment to the county auditor to be collected as municipal taxes for general purposes. Such assessment shall be subject to review and equalization the same as assessments or taxes for general purposes. (Code 1996, § 26-34) SECTION 62-90. Recovery by civil action of expenses. In lieu of assessing The cost of the cutting or destruction of such noxious weeds under the provisions of this division against such property, such amount may be recovered through municipal or State law abatement procedures or by use of other collection procedures, including a civil action instituted for such purpose. in a civil action or according to SDCL against the owner or occupant of such property. IV. CHAPTER 74 STREETS, SIDEWALKS AND OTHER PUBLIC PLACES ARTICLE V. SIDEWALKS DIVISION 2. SNOW AND ICE REMOVAL SECTION 74-213. City's cost assessed. The city manager or a city official designated by the city manager shall cause an account to be maintained for the property owner or occupant of each lot which requires city snow removal. Charges incurred will be billed by the street department. Failure to remit payment of the balance of the account within 30 days of billing shall constitute a violation of this division, 50 City Council Packet September 23, 2008 and the property owner or occupant shall be subject to lien and collection procedures in accordance with this article. (Code 1996, § 33-74) SECTION 74-214. Hearing for approval of assessment. If such bill for snow removal is not paid before April 1 of each year, If the city manager determines that an unpaid account for city snow removal shall be collected by special assessment, the city official designated by the city manager shall prepare an estimate of the assessment against such lot for the removal of snow which has not been paid by the owner or occupant and shall submit the estimate to the city council for its approval in accordance with the procedure for special assessments. on or before April 15 of each year and shall publish in the official newspaper a notice to property owners of the time and place when and where the city council will meet for the purpose of approving such estimate. Such notice shall be published at least one week prior to the date set for such hearing. SECTION 74-217. Recovery by city. In lieu of spreading The cost of snow removal as a special assessment against property under this division, in the discretion of the city such amount may be recovered through municipal or State law abatement procedures or by use of other collection procedures, including a civil action instituted for such purpose. in a civil action or according to SDCL against the owner or occupant of such property. (Code 1996, § 33-78) V. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: September 9, 2008 SECOND READING: September 23, 2008 PUBLISHED: September 26, 2008 CITY OF BROOKINGS, SOUTH DAKOTA Scott D. Munsterman, Mayor ATTEST: Shari L. Thornes, City Clerk 51 City Council Packet September 23, 2008 -- Clean Copy -- ORDINANCE NO. 36-08 AN ORDINANCE AMENDING AND REVISING VARIOUS BUILDING, PROPERTY MAINTENANCE AND NUISANCE ORDINANCES OF THE CITY OF BROOKINGS, SOUTH DAKOTA. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, THAT THE FOLLOWING SECTIONS OF THE CODE OF ORDINANCES OF THE CITY OF BROOKINGS ARE HEREBY AMENDED AS FOLLOWS: I. CHAPTER 22, BUILDING AND BUILDING REGULATIONS ARTICLE V. PROPERTY MAINTENANCE Division 1. Generally SECTION 22.291. Definitions. Building official means, any city official designated by the city manager who shall be charged with the administration and or enforcement of this article. SECTION 22-292. Purpose of article. The purpose of this article is to protect, promote and enhance the welfare, safety, health and property of the general public. (Code 1996, § 10-71) SECTION 22-293. Right of entry. (a) Whenever necessary to make an inspection to enforce any of the provisions of this article, or whenever the building official has reasonable cause to believe that there exists in any building or upon any premises, any condition which is prohibited under this article, the building official may enter such building or premises at all reasonable times to inspect or to perform any duty imposed upon the building official by this article; provided, however, that if such building or premises is occupied, the building official shall first present proper credentials and demand entry; and if such building or premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and demand entry. If such entry is refused, the building official shall have recourse to every remedy provided by law to secure entry. (b) No owner or occupant or any other person having charge or care of any building or premises shall fail or neglect, after proper demand made as provided in this section, to properly permit entry therein by the building official for purpose of inspection and examination pursuant to this article. Division 3. Standards and Requirements 52 City Council Packet September 23, 2008 SECTION 22-341. Maintenance of premises and buildings generally. It shall be unlawful for any person owning, leasing, occupying, or having charge or possession of any buildings or premises in the city to keep or maintain such building or premises in a manner so as to be injurious to the health, or to be indecent or offensive to the senses, or to interfere with the comfortable enjoyment of life or property. (Code 1996, § 10-73) SECTION 22-342. Enumeration of conditions constituting nuisance. A building or premises is maintained or kept in a manner so as to be injurious to the health, or to be indecent or offensive to the senses, or to interfere with the comfortable enjoyment of life or property. and is declared to constitute a public nuisance where there exists upon any building or premises any of the following conditions: (1) Buildings which are abandoned, boarded up, partially destroyed or partially constructed and uncompleted subsequent to the expiration of a building permit. (2) Buildings with deteriorating or peeling paint that allows the exterior building coverings to deteriorate or to permit the effects of sun and water penetration so as to encourage decay, dry rot, warping and cracking. (3) Broken windows, doors, attic vents and underfloor vents. (4) Overgrown vegetation which is unsightly and/or likely to harbor rats or vermin. (5) Dead, decayed or diseased trees, weeds and other vegetation. (6) Trash, garbage or refuse cans, bins, boxes, bags or other such containers permanently stored in front yards visible from public streets. (7) Lumber, junk, trash, tires, debris or salvage materials maintained upon any premises which is visible from a public street, alley, or adjoining property. (8) Abandoned, discarded or unused furniture, stoves, sinks, toilets, cabinets or other household fixtures or equipment stored so as to be visible at ground level from a public alley, street or adjoining premises. (9) Premises having a topography, geology or configuration which as a result of grading operations or improvements to the land causes erosion, subsidence, unstable soil conditions or surface or subsurface drainage problems as to pose a threat to or be injurious to adjacent premises. (10) Abandoned, wrecked, dismantled or inoperative trailers, campers, boats and other motor vehicles which are accumulated or stored in yard areas. (11) Building exteriors, walls, fences, driveways, or walkways which are cracked, broken, defective, or deteriorated, in disrepair or defaced. (12) Any like and similar conditions. II. CHAPTER 42, HEALTH AND SANITATION ARTICLE IV. NUISANCES AND OFFENSIVE CONDITIONS DIVISION 2. ABATEMENT 53 City Council Packet September 23, 2008 SECTION 42-171. Notice to abate. (a) Issuance. Whenever the board of health, deputy health officer, director of solid waste management, or any person designated by the city manager who shall be charged with the administration or enforcement of this article, shall find a nuisance exists within the city, it shall give written notice to the person creating, permitting or maintaining such nuisance to abate the nuisance within a reasonable time as provided in such notice. (b) Noncompliance. It shall be unlawful for any person who is served a written notice to abate a nuisance under the provisions of this article to fail to do so within the time allowed in such notice. (Ord. No. 7-00, §§ 18-39, 18-40, 3-27-2000) SECTION. 42-172. When notice waived. Whenever the owner, occupant or agent of any premises in or upon which any nuisance may be found is unknown or cannot be found, the board of health, deputy health officer, director of solid waste management, or any person designated by the city manager who shall be charged with the administration or enforcement of this article, may proceed to abate the nuisance without notice. In either case, the expense of such abatement shall be collected from the person who may have created, caused or permitted such nuisance to exist. (Ord. No. 7-00, § 18-41, 3-27-2000) SECTION 42-173. By board and city officials. If a person shall fail to abate any nuisance created, permitted or maintained by them following written notice to them so to do, the board of health, deputy health officer, director of solid waste management, or any person designated by the city manager who shall be charged with the administration or enforcement of this article, shall cause such nuisance to be abated. (Ord. No. 7-00, § 18-42, 3-27-2000) SECTION 42-175. Recovery of expenses. The city may recover the expenses incurred in abating any nuisance under the provisions of this article, including costs and attorney's fees, from the person creating, permitting or maintaining the nuisance through municipal or State law abatement procedures or by use of other collection procedures, including a civil action instituted for such purpose. SECTION 42-176. Notice of condemnation of premises unfit for human habitation. (a) Whenever the health officer, deputy health officer, director of solid waste management or any person designated by the city manager who shall be charged with the administration or enforcement of this article, finds that any house, building or premises within the city constitutes a hazard to the health, safety or welfare of the occupants, or to the public, because it lacks maintenance, or is dilapidated, unsanitary, vermin-infested, rodent-infested, or because it lacks the sanitary facilities and equipment required by city ordinances or state law, they, or either of them, may condemn such building or premises as unfit for human habitation. It shall be unlawful to again occupy such building until it or has been made to conform with applicable law or is otherwise fit for human habitation. 54 City Council Packet September 23, 2008 (b) Any house, building or premises condemned as unfit for human habitation shall be posted with a placard of condemnation by the health officer, the deputy health officer the director of solid waste management, or any person designated by the city manager who shall be charged with the administration and enforcement of this article, (c) Whenever the health officer, deputy health officer, director of solid waste management, or any person designated by the city manager who shall be charged with the administration or enforcement of this article, has condemned a house, building or premises as unfit for human habitation, notice shall be given to the owner of such condemnation and the building or premises shall be placarded as unfit for human habitation. Such notice shall: (1) Be in writing; (2) Include a description of the real estate sufficient for identification; (3) Include a statement of the reasons why it is being issued; (4) Include a description of the repairs and improvements required to bring the condemned house, building or premises into compliance with the provisions of health, housing maintenance or other applicable ordinances of the city or state of South Dakota. (d) Service of notice of condemnation shall be made by delivery to the owner personally, or by depositing the notice in the United States mail, addressed to the owner at its last known address, or by posting and keeping posted for 24 hours, a copy of such notice in placard form in a conspicuous place on the condemned premises. (Ord. No. 7-00, § 18-48, 3-27-2000) SECTION 42-177. Vacation of condemned houses, buildings or premises. Any house, building or premises which has been condemned and placarded as unfit for human habitation by the health officer, deputy health officer, director of solid waste management, or any person designated by the city manager who shall be charged with the administration or enforcement of this article, shall be vacated within a reasonable time as required. No person shall occupy any house, building or premises which has been condemned and placarded by the enforcing officer or its representative after the date set forth in the placard of condemnation. No person shall deface or remove the placard from any dwelling or dwelling unit which has been condemned and placarded as "unfit for human habitation." Such placard shall only be removed by the enforcing officer or its representative. (Ord. No. 7-00, § 18-49, 3-27-2000) SECTION 42-178. Right of appeal. The owner or any other person affected by a determination that a house, building or premises has been condemned as unfit for human habitation shall have a right of appeal to the board of health for investigation and review of the determination of condemnation. Such appeal shall be in writing, shall state the objections of the person filing the appeal, shall be filed with the city clerk within the ten days after the date of either posting, publishing, serving or mailing of the notice of condemnation, and shall be presented to the board of health at its next regular meeting. The board of health shall determine by resolution whether the city official proceeded 55 City Council Packet September 23, 2008 correctly, or whether any modification is necessary, and its decision shall be final and conclusive. (Ord. No. 7-00, § 18-50, 3-27-2000) Secs. 42-179--42-210. Reserved. SECTION 42-179. Historic Landmarks. Prior to the abatement of any nuisance upon property, it shall be determined whether the property has been designated as a state, local or national historic property. If it is determined that the property which is the subject of nuisance abatement is a state, local or national historic property, then the abatement may proceed provided the provisions of Article III of Chapter 46 of the Code of Ordinances are addressed prior to the commencement of nuisance abatement procedures. III. CHAPTER 62 PARKS, RECREATION, VEGETATION AND FORESTRY ARTICLE III. VEGETATION DIVISION 2. WEED CONTROL* SECTION 62-87. Notice to remove weeds or grass. A code enforcement officer or any person designated by the city manager who shall be charged with the administration or enforcement of this article is authorized to notify, by any reasonable means, the owner of any such lot, place or area within the city, or the agent of such owner or the occupant of such premises, to cut, destroy or remove any such nuisance weeds or grass found growing, lying or located on such property or upon the sidewalk abutting same. SECTION 62-88. Action upon noncompliance. Upon failure, neglect or refusal of any owner, agent or occupant to comply with the provisions of this division a code enforcement officer or any person designated by the city manager who shall be charged with the administration or enforcement of this article is authorized and empowered to provide for the cutting, destroying or removal of such weeds or grass and to defray the cost of the destruction thereof by billing the owner, agent or occupant or by use of other collection procedures , including civil action, as provided in this division. Code 1996, § 26-33) SECTION 62-89. Costs for grass and weed removal subject to collection. (a) The city manager or a city official designated by the city manager shall cause an account to be maintained against each lot for the destruction of tall and undesirable grass or noxious weeds upon such lot under the provisions of this division. Failure to remit payment of the balance of the account within 30 days of billing shall constitute a violation of this division, and the property owner or occupant shall be subject collection procedures in accordance with this division. (Code 1996, § 26-34) SECTION 62-90. Recovery of expenses. 56 City Council Packet September 23, 2008 The cost of the cutting or destruction of such noxious weeds under the provisions of this division against such property may be recovered through municipal or State law abatement procedures or by use of other collection procedures, including a civil action instituted for such purpose. IV. CHAPTER 74 STREETS, SIDEWALKS AND OTHER PUBLIC PLACES ARTICLE V. SIDEWALKS DIVISION 2. SNOW AND ICE REMOVAL SECTION 74-213. City's cost assessed. The city manager or a city official designated by the city manager shall cause an account to be maintained for the property owner or occupant of each lot which requires city snow removal. Failure to remit payment of the balance of the account within 30 days of billing shall constitute a violation of this division, and the property owner or occupant shall be subject to lien and collection procedures in accordance with this article. (Code 1996, § 33-74) SECTION 74-214. Hearing for approval of assessment. If the city manager determines that an unpaid account for city snow removal shall be collected by special assessment, the city official designated by the city manager shall prepare an estimate of the assessment against such lot for the removal of snow which has not been paid by the owner or occupant and shall submit the estimate to the city council for its approval in accordance with the procedure for special assessments. SECTION 74-217. Recovery by city. The cost of snow removal in the discretion of the city such amount may be recovered through municipal or State law abatement procedures or by use of other collection procedures, including a civil action instituted for such purpose. V. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: September 9, 2008 SECOND READING: September 23, 2008 PUBLISHED: September 26, 2008 CITY OF BROOKINGS, SOUTH DAKOTA Scott D. Munsterman, Mayor ATTEST: Shari L. Thornes, City Clerk 57 City Council Packet September 23, 2008 Alcohol Licenses: 12. Action on Resolution No. 84-08, authorizing the City Manager to enter into a Wine Operating Agreement for Hagman’s Bakery, 307 & 311 Third Street, Doug & Pam Hagman, owners. Doug and Pam Hagman, owners of Hagman’s Bakery, have applied for both a wine operating agreement and malt beverage license for their expanded business located at 307 & 311 Third Street. A letter explaining their business plans is enclosed. An operating agreement is required for wine licenses. Resolution 84-08 allows the City Manager to enter into the first five years of the 10-year agreement effective through 2013. This license would be subject to annual state renewal in December. The Brookings Police Department does not have any concerns regarding this application. If approved, the application would be forwarded to the State Department of Revenue for final action and issuance of the license. Listed below is specific information related to a wine license request and other procedures that are following with an application. Note that restaurant requirements for wine have been eliminated in state law. City Ordinances: Listed below is Chapter 5, Article 2, Section 5-20 of the City Code of Ordinances pertaining to Application Review Procedure. The City Council shall review all applications submitted to the City for available On-Sale Alcoholic Beverage Agreements and for On-Sale Malt Beverage and Wine Licenses in accordance with SDCL 35-2 and in accordance with the following factors: (a) Type of business which applicant proposes to operate: On-Sale Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. (b) The manner in which the business is operated: On-Sale Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. (c) The extend to which minors are employed in such a place of business: On-Sale Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. (d) The adequacy of the police facilities to properly police the proposed location: 58 City Council Packet September 23, 2008 The City Council shall inquire of the Police Chief whether the Police Department can adequately police the proposed location. (e) Other factors: The hours that business is conducted shall be considered by the City Council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale malt beverage and wine licenses Action: Motion to approve, request public comment, roll call City Manager Recommendation - Approve 59 City Council Packet September 23, 2008 Resolution No. 84-08 Hagman’s Bakery Wine Operating Agreement BE IT RESOLVED by the City of Brookings, South Dakota, that the City Council hereby approves a Lease Agreement for the Operating Liquor Management Agreement for Wine between the City of Brookings and the Hagman’s Bakery for the purpose of a liquor manager to operate the on-sale establishment or business for and on behalf of the City of Brookings at 307 and 311 Third Street. BE IT FURTHER RESOLVED that the City Manager be authorized to execute the Agreement on behalf of the City, which shall be for a period of five (5) years and renewal for another five (5) years. Passed and approved this 23rd day of September 2008. CITY OF BROOKINGS Scott D. Munsterman, Mayor ATTEST: Shari Thornes, City Clerk 61 City Council Packet September 23, 2008 Alcohol Licenses: 13. Action on an on-sale malt license for Hagman’s Bakery, 307 & 311 Third Street, Doug & Pam Hagman, owners. Doug and Pam Hagman, owners of Hagman’s Bakery, have applied for both a wine operating agreement and malt beverage license for their expanded business located at 307 & 311 Third Street. This license would be subject to annual state renewal in June 2009. The Brookings Police Department does not have any concerns regarding this application. If approved, the application would be forwarded to the State Department of Revenue for final action and issuance of the license. Listed below is specific information related to a malt license request and other procedures that are following with an application: City Ordinances: Listed below is Chapter 5, Article 2, Section 5-20 of the City Code of Ordinances pertaining to Application Review Procedure. The City Council shall review all applications submitted to the City for available On-Sale Alcoholic Beverage Agreements and for On-Sale Malt Beverage and Wine Licenses in accordance with SDCL 35-2 and in accordance with the following factors: (a) Type of business which applicant proposes to operate: On-Sale Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. (b) The manner in which the business is operated: On-Sale Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. (c) The extend to which minors are employed in such a place of business: On-Sale Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 62 City Council Packet September 23, 2008 (d) The adequacy of the police facilities to properly police the proposed location: The City Council shall inquire of the Police Chief whether the Police Department can adequately police the proposed location. (e) Other factors: The hours that business is conducted shall be considered by the City Council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale malt beverage and wine licenses State Law Information: SDCL 35-2-1.2 provides all applications for retail licenses …shall be submitted to the governing board of the municipality within which the applicant intends to operate…The governing board: “shall have discretion to approve or disapprove the application depending on whether it deems the applicant a suitable person to hold such license and whether it considers the proposed location suitable.” SDCL 35-2-6.2 provides the “character” requirements for alcoholic beverage licensees: “Any license under this title…must be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers thereof must have like qualifications.” Summary: SDCL and case law support the premise that the decision to issue an alcoholic beverage license is discretionary. The City can assess the character of the applicant and whether the location is suitable. A person convicted of a felony is prohibited from applying for a license; therefore, a convicted felon would fail the character test. In determining suitable location, the Council may involve the determination of whether the location is suitable consistent with the procedure developed through South Dakota Case Law. This includes the manner in which the business is operated; the extent to which minors frequent or are employed in such place of business; the adequacy of the police facilities to properly police the proposed location, and other factors associated with the sale of alcoholic beverages. Action: Motion to approve, request public comment, roll call City Manager Recommendation – Approve 63 City Council Packet September 23, 2008 Other Business: 14. Presentation of the Final 2007 City of Brookings Audit by Dick Ellis, Wohlenberg, Ritzman & Co. LLC. Mr. Dick Ellis, from the firm of Wohlenberg, Ritzman & Co. LLC., will present the final 2007 City of Brookings Audit to the Council. Enclosed please find a letter from their firm summarizing the audit review. A copy of the audit has been provided as a separate document from the agenda packet. A copy will be available for public inspection at the City Clerk’s Office or on the city website at www.cityofbrookings.org. Informational 64 ANNUAL REPORT FOR CITY OF BROOKINGS AS OF AND FOR THE YEAR ENDED DECEMBER 31, 2007 GOVERNMENTAL FUNDS General 2nd Penny Sales Other Governmental Total Fund Tax Fund Funds Governmental Funds Beginning Balance 6,368,771 6,121,382 3,468,046 15,958,199 Revenues and Other Sources: Property Taxes 1,850,106 1,850,106 General Sales and Use Taxes 4,953,567 4,944,944 675,854 10,574,365 Amusement Taxes 1,824 1,824 911 Telephone Surcharge 150,000 150,000 Penalties and Interest on Delinquent Taxes 2,334 2,334 Storm Drainage Tax 485,253 485,253 Licenses and Permits 221,929 221,929 Federal Grants 47,332 47,332 State Grants 28,460 422,000 450,460 State Shared Revenue: Bank Franchise Tax 82,474 82,474 Liquor Tax Reversion 105,180 105,180 Local Government Highway and Bridge Fund 199,392 199,392 County Shared Revenue: County Road Tax (25%)3,978 3,978 County HBR Tax (25%)63,434 63,434 County Wheel Tax 17,980 17,980 County Payments in Lieu of Taxes 25,000 25,000 Charges for Goods and Services: General Government 320 320 Public Safety 4,410 22,793 27,203 Public Works 10,959 10,959 Health 12,031 12,031 Culture and Recreation 675,096 1,354,373 2,029,469 Other 55,800 55,800 Court Fines and Costs 67,883 67,883 Library 28,352 28,352 Investment Earnings 270,544 255,155 40,038 565,737 Rentals 49,918 49,918 Special Assessments 62,398 62,398 Contributions and Donations from Private Sources 116,130 77,000 193,130 Sale of Municipal Property 800 800 Other 255,569 72,400 1,288 329,257 Total Revenue and Other Sources 9,066,650 5,372,292 3,275,356 17,714,298 Expenditures and Other Uses: Legislative 108,688 108,688 Executive 370,873 370,873 Financial Administration 519,547 519,547 Other General Government 736,748 736,748 Police 2,202,197 2,202,197 Fire 532,695 532,695 Other Protection 23,914 339,122 363,036 Highways and Streets 1,787,485 726,381 2,513,866 Engineer 530,861 530,861 Animal Control 81,045 81,045 Recreation 715,032 155,000 36,438 906,470 Parks 1,904,294 1,904,294 Libraries 822,478 26,239 848,717 Auditorium 1,754,373 1,754,373 Historical Preservation 18,878 18,878 Economic Development and Assistance (Industrial Development)231,783 1,945,527 2,177,310 Debt Service 233,264 2,381,589 2,614,853 Total Expenditures and Other Uses 10,587,999 2,768,372 4,828,080 18,184,451 Transfers In (Out)3,047,882 (993,419)785,037 2,839,500 Changes in Reserves 1,603 410,835 412,438 Increase/Decrease in Fund Balance 1,528,136 1,610,501 (356,852)2,781,785 Ending Balance: Reserved 5,502,112 4,000,500 2,840,069 12,342,681 Undesignated 2,394,795 3,731,383 271,125 6,397,303 Governmental Long-term Debt 18,604,848 PROPRIETARY FUNDS Other Enterprise Electric Health System Telephone Funds Beginning Balance 26,874,888 34,950,936 18,544,462 32,528,244 Revenues 16,675,576 28,085,221 35,848,274 17,030,553 Expenses (14,294,572)(25,578,338)(33,905,174)(14,101,180) Transfers In (Out)(966,000)0 (1,350,559)(1,148,500) Ending Balance: Restricted 17,042,400 16,663,368 (322,476)24,356,183 Unrestricted 11,247,492 20,794,451 19,459,479 9,952,934 Long-term Debt 6,094,674 0 29,559,764 2,359,689 The preceding financial data does not include fiduciary funds or internal service funds. Information pertaining to those activities may be obtained by contacting the municipal finance officer at 697-8639. Municipal funds are deposited as follows: Depository Amount First Bank & Trust 33,774,386 FHLB (First Bank & Trust Wealth Mgmt)8,275,000 Wells Fargo 10,332,092 Dacotah 3,324,604 Metabank 2,670,478 BankStar 500,000 Home Federal 6,246 Security National 27,884 Other Business: 15. Discussion and adoption of the Storm Water Master Plan. Troy Thompson, President of Ecological Resource Consultants, Inc. of Evergreen, Colorado, presented the draft results of the storm water master plan for the City of Brookings at the June 17th, 2008 Brookings City Council meeting. The master plan results are based upon a comprehensive storm water study utilizing the SWMM model and the plan included options for storm water improvement projects throughout Brookings. The consultant incorporated comments into the plan and the Master Plan has been finalized and is ready for adoption by the City Council. This motion will adopt the City of Brookings Storm Water Master Plan. A copy of the plan has been provided as a separate document from the agenda packet. A copy will be available for public inspection at the City Clerk’s Office or on the city website at www.cityofbrookings.org. Action: Motion to approve, request public comment, roll call City Manager Recommendation - Approve 69 Executive Session 16. Executive Session for purposes of discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, where public discussions would be harmful to the competitive position of the business. SDCL 1-25-2. Executive or closed meetings. Executive or closed meetings may be held for the sole purpose of: 1. Discussing the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee. The term “employee” does not include any independent contractors; 2. Discussing the expulsion, suspension, discipline, assignment of or the educational program of a student; 3. Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters; 4. Discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, where public discussions would be harmful to the competitive position of the business. However, any official action concerning such matters shall be made at an open official meeting. An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion. Nothing in 1-25-1 or this section may be construed to prevent an executive or closed meeting if the federal or state Constitution or the federal or state statutes require or permit it. A violation of this section is a Class 2 misdemeanor. Action: Motion to enter executive session – voice vote Motion to leave executive session – voice vote 70 71 17. Adjourn.