HomeMy WebLinkAboutCCMinutes_2008_03_25 27
Brookings City Council
March 25, 2008
The Brookings City Council held a meeting on Tuesday,March 25,2008 at 4:30 p.m., at City Hall
with the following members present: Mayor Scott Munsterman, Council Members Julie Whaley,
Mike Bardey, Ryan Brunner,Tim Reed, Gingex Thomson, and Tom Bezdichek (arrived at 5:15
p.m.). City Manager Jeffrey Weldon, City Attorney Steve Britzman,and City Clerk Shari Thornes
weYe also present.
4:30 P.M. WORK SESSION
Report from Council Member Tim Reed on NLC Conference Council Member Tim Reed
gave a report on the National League of Cities Conference he attended March 8-12,2008 in
Washington. He attended woxkshops on the National transpottation bill, the fedexal budget
process,issues and questions, safe xoutes to school, and lobbying the federal delegation. He also
met with Senators Johnson and T'hune and Congresswoman Herseth-Sandlin's staff regarding local
issues. He delivered the innovation campus proposal on funds for infrastructure. He noted that
thexe wasn't much opportunity during the conference to share issues with other cities. The £ocus
was to lobby. He recommended sending one to two council members per year. He felt it was
impoxtant to be in front of oux Federal delegation at least once per year and to stay in touch with
their staff inembers on a regular basis. He noted that we're lucky to have the access that we have to
our federal delegation.
Project Insi ng� t Renorts from Council Members. Several universiry communities agreed to
participate in the City of Brookings "Project Insight" survey. Council members were assigned
communities and specific repxesentatives to contact. The Council members reviewed what
information they learned from their assigned communities.
Munsterman suggested that each member highlight what they have learned and then have a
discussion on how to use the information. He will be attending an update on the SDSU Master Plan
on April 15`and plans to use some of that information at that meeting.
Thomson gave the following re�ort on Missoula,Montana•
Economic Develo�ment:
1) Has your City established specific steps,programs, ox incentives to help gxow your economic
base? Missoula does not have anything specific. They have relied on tax increment
financang (TIF� districts especially for downtown which has rejuvenated the area xesulting in
an expansion to west and south of downtown. They have a fairly strong agency that
manages it with theix own board, director and staff of five. Missoula's re-development
agency employees axe employed by the city. They have invested a lot into theix riverfront
and a park gathering place with a pavilion and carousel,which was all done with TIF. A
Fartners Market is also located downtown. They have an improved sidewalk system -which
does not have bump-outs because it is a state highway system.
Missoula has its own economic development corpoxation which assists in the funding for .
special projects.
Missoula is the economic hub o£western Montana. Their retail trade area services a
population of approximately 150,000. (Missoula itself is about 68,000;and with suburbs it is
approximately 90,000. The university has an enrollment of about 12,000).
2) Does your City have a formal economic development plan/strategy in place? Missoula does
not specifically have a formal economic development plan/strategy.
3) Does the City have an affordable housing and/or other housing development strategy?
Missoula is trying to develop a more proactive approach to this issue. They have a housing
authority which is independent of the city. However, they are trying to promote the housing
problem and have created a video they show to public boards, agencies, and service gxoups.
The video is speaking about the problem,not necessarily offering a solution. The median
house is out of reach for typical mid-level income. Their new mayor is tryuig to figure out a
solution,trying to find more land, etc.
2 �
Code Enforcement:
1) What is your City's plan for Code Enforcement and its implementation? Three of their city
offices (building inspection, zoning and engineering) have individuals that enfoxce various
provisions of the codes.
2) Does your City perform proactive enforcement or is it complaint basis only? The City
operates on a complaint basis only, not a proactive approach.
3) With respect to rentals, how does the City address the number of"unrelated"people within
a structure (i.e. non-family households)? How many are allowed per unit? The City formerly
had a code that defined"family",which was taken to court and declared illegal. They
currently don't have restrictions regarding who can occupy a house. This is a problem as
enrollment at the university has grown from $,000 to 12,000 in the last few years.
Personally,his own neighborhood has gone from single family to numerous rentals. Since
they cannot restrict occupancy,Missoula xesponds to complaints about conditions. 'I'hey are
currendy considering an ordinance which would create a program where landlords could
agree to a voluntary inspection,and they would in turn receive a seal for corrrpliant rental.
Promote to students "Look for the Seal" and you can be assured of some minimal safety.
The average rental has about five students. They do have a community police officer who
"specializes"in that area.
Development itn�act and other fees:
1) How does your City finance new subdivisions and developments? Developers are required
to build the infrastructure that immediately serves the site and the city has a stringent
standard. T'he City has struggled with offsite infrastructure development. Four years ago
they adopted impact fees fox police, fire,parks, and community services. To assist in the
process, they hired a national consultant. State law now states that you must have an expert
analyze the incxemental cost of the development. Sewex has collected the impact fee for 20
years. They do not own the water system,however,they wish they did. Developers praise
the city's sewer development fee. They implemented a new impact fee for transportation.
They assess it with the building permit, even new commercial pays. Single dwelling went
from about$1,000 to $2,000 in fees. A park impact fee is also included. Commercial is
quite a bit more. Construction of a 10,000 SF office building used to be $7,000 in impact
fees. It will now be$20,000 with the transpoxtation impact fee,which went into effect in
January. Missoula is still only assessing about half of what they could. T'heir Chamber of
Commerce is quite opposed for obvious reasons,but the city counters that the infrastructure
is necessary to serve new business and industry.
2) Who pays for replacement of arterial toads? They ate dependent on federal and state
gas tax and is deficient in funding,which is why they look to the transportation unpact fee as
an aid to it.
3) Does your Ciry use ttaditional bonding and assessments, fees systems, or development
impact fees? Historically,Missoula has used special improvement districts which allow them
to bond the cost over 20 years. The biggest use has been residential wastewater system and
also stoxrnwatex. They have used another law which allows them to bond curb and sidewalk
assessments to property owners (they finance over 12-20 years and pay municipal bond rate
interest).
4) Does your ciry have design guidelines to protect community aesthetics such as signage and
landscaping for new developments? Yes. The guide]ines have been fairly xestrictive which
has been a continuous controvexsy. T'hey have always required a certain percentage of a
commexcial lot to be landscaped. The downtown area has a city-owned parking district with
structure.
Financial:
1) What type of incentives does your Ciry provide for economic development? Missoula
mainly provides TIFs and they have their non-profit economic development corporation.
2) Does your Ciry have any housing projects subsidized by tax increment funding? Yes.
Missoula has a housing authoriry that ovexsees the projects.
29
Town& Gown:
1) What municipal services do you provide on campus (fire,police, public transpoxtation,
other)? The university has their own police depaxtment which is supported by the city when
necessary. The city provides fite pxotection. The university does not pay the city for these
services. The community and university use an independent bus system,not private. The
bus organization collaborates with the university.
2) Does the university pay the city for these services? The university subsidizes the bus
transportation.
Li�:
1) In what ways does your public library participate in economic and/ox cultural growth? They
have a county library.
2) Does your public library share common resources with the University or Public School
District? There may be minox collaboration with the University or Public School District.
Event Center:
1) Does your community have a multi-purpose facility, arena or convention centex?
■ If so,is it city,county,university owned?
■ If city owned,is it managed by the City or a management company?
■ Does it cash flow?
They do not have one. However, they axe considering a performing arts centet. The
university has a center that is used primarily for sports. It seats about 8,000 and they've had
Elton John pexform twice. The Rolling Stones have pexformed in their football stadium
which seats about 20,000.
PaxtneYShi�s:
1) Cite any examples of unique successful partnership arrangements your City has between
Univexsities/Colleges.
■ (i.e. comtnunity Park and Recreation agencies in the area of joint
development/management of recreation or wellness facilities,physical education or
sports facilities, arts and cultuxal facilities ox programs)
There are no specific examples. They work haxd to communicate with each other and to
know what the other is doing.
Reed gave the following report on Grand Forks,North Dakota•
The Mayor is part-time,has no adixiuustrative duties. Those duties are the responsibility of the city
administrator. The Mayor seems stronger then our form of government and has a full-time
assistant.
Economic Develo�ment. Grand Forks does have an established plan and programs to help grow
their economic base. The city has funded a growth account that is used by the Regional EDC. It
currendy stands at$4 million. T'he account can be used to puxchase land, fund infrastructute
improvements, spec buildings,and also for incentives.
Grand Forks has completed an axea of 20 affordable homes where the entire infrastructure was paid
for by the ciry. It has been very successful and they are moving on with phase 2 for another 20
homes.
Code Enforcement. Grand Foxks rezoned ateas close to campus to avoid having too many rentals
in one area. The city enforces code by complaint and proactive inspections. If a landlord receives 3
complaints their xental license is revoked. They allow 4 unrelated people in a unit.
Develo�ment im�act and other fees. In new areas marked foY development 50%of the
infrastructure costs are paid for by the developer and 50%axe paid for by the city and then assessed
back to the property when fully developed.
Grand Forks has very strict guidelines for development,which are enfoxced.
30
Town and Gown. Grand Forks is responsible fox fixe, stoxm dxainage control,and building and
health inspections on campus. The city gave the university$100,000 per year for five years as seed
money to hire professors/researchers that in turn would be able to get research grants.
The full Council meets with the full Student Body Government quarterly and leaders of both entities
meet monthly.
They have a"Just Say Hi"program to get students to know neighbors,which has been very
successful.
Event Center. The Alerus Center is owned by the city. The city has a '/a% sales tax that funds the
capital it required to do the center and the ongoing e�cpenses. Although it is now cash flowing, they
are charging a paxking fee and that gives them the additional revenue to covex expenses.
Their Mayor offered meeting half way.
Reed gave the following r�e ort on Stillwater,Oklahoma:
He had a conference call with Mayox Roger McMillian,and he would like to receive a copy of the
fixll report if we do one.
Economic Develo�ment. Stillwater does not have any proactive Economic Development Plan.
Although the Mayor explained how they woxked with Mercury Marine to build an expansion on the
current plant located in Stillwater instead of in China,most of the incentive package was in utilities
concessions. The city owns the electric utility.
Affordable housing is a issue that they are trying figure out. A large percentage of the wage earners
commute to Stillwater. OSU employment is around 4,800 and 45-48%live outside of Stillwater
because of housing costs. When a development was created with some modified standaxds to
reduce the price, they found that the people still stayed or purchased homes in oudying
communities.
Code Enforcement. Stillwater code enforcement is both proactive and complaint based. When
OSU received a gift of over$400 million for a new athletic village they removed 850 homes (23
acres)which happened to be the most substandard housing in town. Recendy more issues have
arisen and the city is becoming more proactive.
Develo,�ment im�act and other fees. Developers pay 100% of the infrastructure needs.
Stillwater recendy adopted a new set of development guidelines that has been in the making for 10
years. It has taken a lot of compxomising with pro and con development.
Town and Gown. The university didn't do a good job with communicating the new athletic village
with the town's people and the city. So the T&G relationship has been strained and many in the city
are asking more from the University. The Mayor felt that the pressure has made the city look to the
Universiry to pay more of their own way. Over 40% of fire calls are located on campus. OSU
received a break on water and that has been recendy reversed.
Event Center. Stillwatex does not own any event or convention center.
Brunner gave the following report on Laramie.W�oming;
Economic Devel�ment. They did not provide many specifics on economic development. They
don't have any affordable housing ot housing strategies in place. This community appears to be
fairly independent and most were privately operating with no government involvement.
The City doesn't finance new developments and the main roads are state highways. The collectoxs
are handled by the city. 'They don't currendy have impact fees,but would consider them in the
future.
'They have limited guidelines on development standards fox aesthetics.
Code Enforcement. Laxamie's code enforcement consists of nuisance responses on a complaint
basis. Rentals are similar to Brookings,which is three or less unrelated are allowed. However,in the
R3 zone they allow 4 unrelated.
31
LaYamie does not have a public libxary.
Event Centex. The Convention Center is owned by the University.
Partnexshi� They cited partnerships in golf and tennis.
Town and Gown. The City provides the University with emexgency services,review of building
plans, and fi.te inspections at no cost. Ambulance service is provided on campus,but at cost. The
universiry contributes one percent to the annual fire budget and also contributed to the cost of fire
trucks.
Whaley gave the following report on Logan Utah:
Economic Develo�ment.
#1 -Logan does have a process in place to offer incentives to businesses or developers that bring
pxojects that meets the city's economic goals which includes job creation,wage levels, capital
investment, catalytic effect, etc. The majority of such incentives are limited to pxojects occutring in
the city's s�Redevelopment Ptoject Areas or its one Economic Development Project Area. A 12-
member Economic Development Committee makes xecommendations that are presented to theix
Redevelopment Agency Board. They are also in the process of seeking local approval to use CDBG
funds for the establishment of a Business Development Fund for pxojects in theix historical
downtown. They respond to dixect inquiries as well as those that come thxough the state economic
development department.
#2 -Logan does have an economic development strategy in place to guide the work of their
economic development department and committees. While it is not formal in the sense of its being
approved by the city legislative leaders,it is in harmony with the city's general plan which has been
formalized.
#3 -The city works with providexs of affordable housing to ensure that there is an adequate supply.
Roughly 20% of all redevelopment/economic development project axea revenues are eaxmaxked to
assist such projects get off the ground. They assist those projects that axe appropriately-funded and
for which there is a market to support it,be it units for veterans, £or the eldexly, etc.
Code Enforcement#1/#2: The city has a Code Compliance Inspector and a Neighborhood
Improvement Coordinator for the enforcement of commercial and residential code issues. The
residential side is currendy completely complaint-driven,while the commercial side is a combination.
Being a universiry town,there is a fair nutnber of illegal xental units and the ciry will be embarking
on a ptoactive effort to curb this problem by primaxily focusing on illegal parking in the rights-of-
way.
#3 -The city addxesses the number of unrelated people in rentals by allowing up to three (3)
unrelated individuals to live in any given structuxe.
Develo�ment im�act and other fees
#1 -Typically, the city would like to see the land developer pay for roads and other infrastructure
going into new developments. If only one side of the street is being developed,many times the ciry
will cover half of a road and then get teimbursed once the opposite side is developed.
#2 -Roads typically would be dedicated to the city and then the city would carry the expense to
maintain and replace them,if necessary.
#3 -The City has used bonding where it wanted to lead the development. Impact fees were
implemented about a year and a half ago. Building pernut fees have been in place for years.
Assessments have been used. For example,in the downtown area,property owners are assessed
based on lineal frontage or square footage, the majority of the cost to install new streetscape
improvements.
#4- The city does have design guidelines to protect community aesthetics. These can be found on
their website www.loganutah.org and then select the Community Development Department,
followed by clicking on the Land Development Code link.
32
Financial
#1 -Logan primarily offers tax increment xebates associated with their redevelopment and
economic development project areas. In the past,however, other incentives such as cost of
infxastructure and sales tax rebates have been given.
#2 -Yes, the city has subsidized affordable housing projects with tax increment revenues.
Town& Gown. The city responds to fire and medical emergencies at the university. According to
the city fire marshal,the city does not require the university to pay for this service. The university
has their own fire marshal. The universiry has their own police force,but the city has e�ertise that
it would lend if needed (i.e. SWAT, homicide investigation, etc.).
Libra . The library maintains on its website information about events of historical significance in
Logan's history as a means of preserving our cultural heritage. A communiry calendar also keeps
citizens apprised of various cultural events that axe happening. The library is an anchor to
downtown Logan. As such,it is a player in the economic development of the downtown.
Currendy, the library is being explored as to how it can contribute to the economic vitality of the
downtown area to a greater degree.
Event Center. Logan does have an axena which is owned by the university. The city does not have
a convention centex. However, a private developer is curxendy in the process of building a 31,000
square foot conference center. The city provided an incentive through its redevelopment agenry,
however the OjM expenses will be fully carried by the developer/operator.
PartnersT The university has an electrical power producing turbine. The University purchases
power from the city's electrical power department because it is cheaper than what they can generate
on their own. However,the city purchases some of its peak power from the university as it has a
better rate than some of the power available on the open market.
Munsterman gave the following report on Manhattan, KS•
Economic Develo�ment:
1) Has your City established specific steps,programs, or incentives to help grow your economic
base? They have a copy of the economic development model and recendy modified it.
2) Does your City have a formal economic development plan/strategy in place? Yes.
3) Does the City have an affordable housing and/or other housing development strategy?
Manhattan is struggling with the defuution of affordable housing. They have a military post
18 miles away. T'he valuations have gone thtough the roof in the last 6-7 years. A housing
development map is updated every month. Platted,developers,etc... axe on one source.
Code Enforcement:
1) What is your City's plan for Code Enforcement and its implementation? No comment.
2) Does your City perform proactive enforcement or is it complaint basis only? Manhattan has
su�enforcement officers under their ftre department. They ate sending a copy of their
policy.
3) With respect to rentals,how does the City address the number of"unrelated"people within
a structure (i.e. non-family households)? How many are allowed per unit? Four unrelated
people per structure is the limit. Landlords are not required to register. Down zoned areas
around campus to residential (multi family overlay district).
Develo�ment im�act and other fees:
1) How does your City finance new subdivisions and developments? New subdivisions and
developments are under a special assessment process. T'he city pays for the upfront cost,
and then the costs are apportioned to each land owner. Specials added on to the lot buyer
include water, sewer, and street. Instead of the developet paying upfront,it is bonded over a
20 year period,then it is assessed to buyer for the remaining 19 years on the lot. This
process allows new subdivisions and developments to be affordable.
2) Who pays for replacement of arterial roads? In the ciry limits the ciry replaces the arterial
roads. The technical paxk is provided for by a joint agxeement between the city and the
county.
33
3) Does youY City use traditional bonding and assessments, fees systems, ot development
impact fees? Cutxendy,Manhattan utilizes all of the above with the exception of
development impact fees. However, they ate looking into the application of these fees.
3) Does youx city have design guidelines to protect community aesthetics such as signage and
landscaping for new developments? Yes, there are zoning regulations to maintain the
aesthetics of the community.
Financial:
1) What type of incentives does your City provide for economic development? The City and
County split a one-fourth sales tax fox economic development.
2) Does your City have any housing projects subsidized by tax incxement funding? Manhattan
does not subsidize housing projects;however,a downtown redevelopment project is
subsidized.
Town& Gown:
1) What municipal services to you provide on campus (fire,police,public ttansportation,
other)? Fire service is provided on campus;police service is not. Governed by a law board
city/county joint venture. They will send us a good example they are looking in Kearney
Nebraska... shaxe resources but operate separately.
2) Does the universiry pay the ciry for these services? Fire—yes,but$8,000 per year (minimal).
Also the laxgest false alarm agencies in town.
I.i�:
1) In what ways does your public library paxticipate in economic and/or cultural gxowth?
2) Does your public library shaxe common resources with the University or Public School
District?
Event Center:
1) Does your community have a multi-purpose facility,arena or convention center?
i. If so,is it city, county,university owned?
u. If city owned,is it managed by the City ot a management company?
iu. Does it cash flow?
Partnershi�s:
1) Cite any examples of unique successfixl partnetship axrangements your City has between
Universities/Colleges (i.e. community Park and Recreation agencies in the area of joint
development/management of recxeation or wellness facilities,physical education or sports
facilities, arts and cultural facilities or programs). A City built incubator is on KSU in order
to use K State research. There are three paxtnexs and it has been woxking well.
Batdey and Bezdichek with provide their xeports at a later date.
Liquor Application Presentations. The City of Brookings accepted applications for its one
remainuig unrestricted liquor opexating agxeement. Proposals were submitted by BraVo's, the
Shamrock, Gonz Productions, Inc., and Stax Hospitality. Representatives of each were present to
make their formal request to the City Council.
Dean Gulbranson, Star Hospitality,Yequested to speak first because now that the Governor has
approved Senate Bill 126 cxeating restaurant licenses,it has shed a diffexent light on the futute usage
of the liquor licenses. Gulbranson said he and his associates had talked about the Swiftel Center
expansion project fot a long time. Not knowing what the process would be and the status of the
pxoposed legislation,he and his associates stepped forward to proceed with acquiring the last
rema.ining license. He said he believes in the Swiftel Center expansion project and feels it's an
opportunity fox the communiry of Bxookings. When all studies are done and the City is ready to
proceed with a convention center, his company will be ready to proceed with the opportunity of a
full service motel to service that project. He believes the convention center and attached
motel/restaurant will open doors for Brookings to larger events that come due to those facilities.
He said with that in mind (studies must be completed) his company would not need a liquor license
for an extended period of time. He could come back in July when the city will react to Senate Bi,ll
34
126 by passing an ordinance that could allow for additional liquor licenses. Gulbranson announced
that his company was withdrawing their request fox the available liquor operating agreement.
Kip Pharis,BraVo's owner, asked if it would be possible that everyone could have a liquor license
the first of July.
Steve Britzman, City Attorney, said that would be possible, the ciry can addxess the ordinance ahead
of time and as of July 1S`that law would be in effect,and the City can pass an ordinance in
anticipation of that effective date. He didn't know if the City has done that too often to tie in with
the actual day that the law allows an activiry to occur,but he thought in this case we could.
Pharis said the question he has is because of a letter from the Governor a6out the law going into
effect July 1 S`and in talking with the Governor's staff they indicated there's no reason it can't go into
affect July 1 S`or a week later. He commented that this is Brookings and everyone here wants to
build a better Brookings. He commented that one business is not better than another and asked if
everyone could work together on this issue. He asked with this one liquor license,if it is important
that there are different restrictions verses something else. He asked according to law, does it say you
have to give this one away before you give the other ones away. If so, then do it consecutively. He
urged the council to consider that everyone receive a license the fixst week in July. Munsterman
asked Pharis if he was suggesting the city council not issue this one tonight. Pharis said he was
"game" for that. He also noted that all the applicants have money invested in Brookings.
Mike Bartley commented that the current liquor operating agreement could be issued on a
temporary basis until July when another license was issued and the Council could also place
additional restrictions or conditions on that agreement to make it look like the restaurant bill then
convert it later. He noted that there are diffexent ways to go at it. If there's a desire and a need to
issue sometivng this evening, the Council has the capability of doing that and didn't think it was a
large detriment to everyone if it all happens in July. The Council will have an ordinance to pass, and
if the Council could get started soon so the ordinance is ready by July 15`. Until then, the Council
could issue the remaining license on a temporary basis and make it look like the restautant bill. He
said the city could anticipate additional licenses in 2010 based on population for the full liquor
licenses and not restricted, such as this one. The Council has some options to award this tonight if
they choose to do so.
Munsterman asked Pharis if he was asking the Council to hold until July 15L. Pharis said he just
wanted what was best for Brookings. Pharis said he had heard it could take as long as October 1 S`
before the restaurant licenses were available and didn't want to leave anyone behind. Everyone that
applied should get a license. It depends on what the Council wants and set the criteria for what they
want for this community and BraVo's may fit this perfectly. He urged the Council to expedite the
process as soon as possible and requested it be fair fot everyone. His company employs 120 people
and has been open for 5 '/z months. He feels it plays an important part that Pizza Ranch has been in
town for eight years,and now adding BraVo's,provides something that was lacking in the
community. He was for giving all at once or whatever is fair for everyone. He's been open without
a liquor operating agreement for 5 '/a months and feels others can do the same.
Tim Reed asked if Pharis intended to allow smoking on the patio. Pharis said he hadn't determined
that, but commented that it's just a matter of one to two years befote smoking is banned statewide. -
Reed noted that the new restaurant licenses will not pertnit smoking anywhere on the premises.
Clarification was asked regaxding this issue.
Britzman said the new licenses define the premises for consumption of alcohol. Normal liquor
licenses allow for consumption on the patio;however,with the new licenses "no smoking"is tied to
the definition of premises. If smoking were allowed on the patio then alcohol could not be served.
With that clarification Pharis said that smoking would not be allowed on the patio.
Reed commented that the available license is less restrictive than the new ones available in July. He
asked which license is the best fit.
Pharis said it would be nice to have the license that allows smoking.
Jay Bender thanked the City Council for their work on getting the liquor bill passed and for trying to
make a decision on issuing the remauung license. He found out how the City of Siou�c Falls does it
with a lottery system and doesn't make decisions. He urged support of awarding the unxestricted
35
license to BraVo's, citing that he felt that this is what Brookings needed—a top class xestaurant. He
agreed with the no smoking. With BraVo's he now has a place to bring his clients to. He suggested
issuing the license tonight to BxaVo's and the Council could add xestrictions on this license and
swap it out on July 1S`for the new restauYant license. In his opinion, the new restaurant licenses
were designed fox this xestaurant and maybe everyone who has applied qualifies for the new licenses.
He encouraged the Council to issue this remauung liquor license to one of the three applicants,
noting that all are gxeat and deserving and that BraVo's meets the criteria for the new bill.
Mike Baaley, co-owner of the Sharnrock, asked if the"special events license" could be used at the
Shamrock. He said that between now and July 15`, the Shamxock has 23 private parties booked and
of those there's the potential to average $35,000 in liquox sales between now and July 15C. He asked
if the Sharr�ock could use a special events license until the new licenses ate available and then
everyone get the licenses at the same time.
Britzman said provided the Shamrock is eligible as a convention hall,which he thought they met the
definition of that as defined in the past, then they would be eligible to apply fox tempotary on-sale
liquor licenses as a convention hall. We have a ciry ordinance that spells out that procedure.
However, the facility would have to be on the official"convention"list. With that defuution
available,it would indicate if their facility would qualify.
Thomson asked if there was a limit on the number of temporary licenses issued to the same party.
Britzman said no,but it is subject to approval unless they paxtnex with an on-sale licensee. It would
be subject to public heaxing and come before the city council for approval under the city ordinance.
Reed noted that was what the city does with the Swiftel Center. Britzman said that approval has
been turned over to the city managex. Reed asked if that was something we could do for all o£them.
Britzman said it would require an ordinance change. It is driven by state statute that requires a
public heaYing before the city council unless the applicant is an on-sale licensee.
Bardey asked how soon an ordinance could be drafted. Britzman said it would take probably 45
days to complete the ordinance process. It would be a diffexent process to create a convention
facility. Baxtley asked if the second step would be for authorization for the city manager to sign off
on the licenses. Britzman noted that because the Shamrock would be serving,a public hearing and
council action would be requixed for each event date,but all could be done in one hearing.
There was discussion on the process regarding the Swiftel Center. T'he City Clerk xead the local
ordinance peYtaining to its designation: "A public hearing on the issuance of the temporary
convention hall on-sale alcoholic beverage license shall be held during a regular meeting of the city
council except that no public hearing is required if the person applying for the license holds an
operating agreement for a municipal on-sale alcoholic beverage�icense or if the Swiftel Center is the
applicant. The issuance of the convention hall tempoxary on-sale alcoholic beverage license is at the
discretion of the city council."
(BeZdichek arrived)
Bailey said that most of the booked events start the middle of May. He asked when the new licenses
become available if the City could switch his convention designation to the unrestricted license,
- noting that many of their events stay late into the evening.
Bardey clarified that the time restrictions were taken out of the final bill and there are no operational
hours that are different in the restaurant license. However, the City could create different hours for
those licenses by ordinance.
Reed asked if the Shamxock would need a public hearing fox every day they want to pxovide service;
but if they know all the dates could this all be done in one hearing. Britzman said yes.
Britzman said the distinction with the Swiftel Center is that it alxeady has an on-sale license because
it's owned by the City. Therefore, a public hearing isn't required.
Munsterman asked if the creation of a convention facility and the hearings on the dates could be
done in one step. Britzman said yes, the Shamrock could submit their requests fox all the dates and
the Council could take action on all of them.
36
Jeffrey Weldon, City Manager, asked if designating the Shamrock would set precedence for similar
facilities, noting a number of businesses that rent out space that could fall under the same category
being discussed.
Ginger Thomson said she thought the temporary license was a good option and expressed
willingness to go that route assuming the Shamrock met the basis requirement of a convention
facility.
Munstexman asked with the new law in July,if all the applicants tonight qualify for those licenses.
Britzman said he hasn't reviewed the law and a line-by-line analysis is needed to draft the city's
ordinance. It appeared to him that the Shamrock and BraVo's met the basic requirements of the
ordinance. However, he noted that it would be nice for the City Council to work theit way through
the ordinance. The process would be to convert the new law to a draft ordinance and then receive
feedback from other municipal attorneys for a more complete understanding of how this new
restaurant license would work. He has not yet started the process. Those two applicants appear to
fit within the basic requirements;however, he reiterated it would be nice to have the opportunity to
fully analyze and draft the ordinance fitst.
Reed asked if the Council action to award a liquor agreement was referable. Britzman said no, the
issuing of a license is an administrative act and is not subject to referral. It's not setting a policy that
affects a wide number of people and it's not permanent.
Reed said these businesses have events and it would be important to know if they will have a license.
He suggested the City do the ordinance process as much as possible prior to July so all the
applicants will know when the licenses are available and can plan their businesses around it.
Bardey commented that it is important the Council understands that the new ordinance would be
referable. It is also important to understand that the ordinance to establish restaurant licenses has
not been drafted and the law doesn't tell us how to draft it. The city will have to be extremely
careful that it isn't challengeable. We need a model dxaft bill that treats everyone fairly and stands
the test of time. That process will take one to two months to complete,but could be completed by
J�y 15�
Britzman said the oxdinance isn't that complicated,but there was the desire of the cities to share and
coordinate in this process. Britzman has volunteered to start the process in motion. Draft
ordinances should be done within a month.
Brunner said if the City models the ordinance after the new legislation, the precedence we'd be
setting would be one which no one else would want to follow, as they would just apply for the
license. The precedence would match the new law.
Reed said he's assuming Brunner is referring to other rental facilities such as Old City Hall, 311
Center,and Old Sanctuary and if temporary licenses would be granted to them or not. He's not sure
if they'd qualify,because they don't have food service onsite. It's good to pause and get through this
process to have a better understanding of it.
Bartley suggested additional restrictions, such as square footage,be placed in the convention
designation xesolution which would eliminate the smaller facilities.
A1 Gregg asked for clarification on the defuution of a"full service restaurant" and about the new
convention center bill of 35,000 people or more. Britzman cited the new state law regarding the
restaurant definition: "Full-service restaurant," any restaurant at which a waiter or waitress delivexs
food and drink offered from a printed food menu to patrons at tables,booths, or the bar. Any
restaurant that only services fry orders or food and victuals such as sandwiches,hamburgers, or
salads is not a full-service restaurant...".
Regarding Gregg's convention question,Britzman said that was earlier language in the new bill that
was removed.
Garner Hansen, owner of Gonz Productions, said his business along with rest of those applying for
the liquor license is deserving. His proposed restaurant/bar would be similar in qualities to the
Shenanigan's in Sioux Falls and Aberdeen. He expressed concern about the food and alcohol
percentage split for the restaurant licenses. He said the Sioux Falls location is not a 60/40 food to
liquor and is not sure if Aberdeen is either. Both locations axe very populax. Those businesses also
37
allow smoking and he would like to as well. He asked to be considexed for the one xemauung
"unrestricted"license because that would pertain to most of the businesses in the axea where he's
located. His business is very diffetent from the othex applicants by being located downtown, citing
other downtown competitors.
Ryan Brunner asked Hansen when he expected Shenanigan's would open. Hansen said he has been
watching the Streetscape project and felt that the summextime when the street is torn up would be a
good time to focus on the interior. However, he is waiting on a decision from the City Council
befoYe moving ahead with that investment.
Brunner asked if the City could issue the current license temporarily, swap it out in July for a
restautant license and then reissue as an unrestricted license on July 15t. Britzman said that was
conceivable.
Thomson asked Hansen if he had a business plan with a business description that addressed target
demogxaphics, competitors, etc. Hansen said those items wexe addressed in the business plan the
Council had and has had for some time.
Hansen distributed menus from another Shenanigan's as an example of a future menu.
Hansen said based on what he's seen in Sioux Falls,where he works four days a week,the license
that would suit him best would be the unrestricted. He didn't think his business would make it past
the one year"check-up" on the food/liquor ratio if given the "restaurant"license. He felt the other
two applicants would best fit in the 60/40 ratio. He plans to run entertainment in the evenings aftex
the supper cxowd. He firmly believed that it's the unrestricted license that he needs. He clarified
that Shenanigan's is not a franchise in South Dakota and has no restrictions. He also has a close,
peYSOnaI relationship with the owner of the other two locations.
Thomson asked if the menu would be similar. Hansen said yes,but would make some changes.
Maybe not as many televisions and would make it a fun atmosphere for entertainment after supper
(band,kaxaoke show, etc.).
John Gustafson asked what the xestrictions would be for the new restaurant licenses. Britzman said
60% of the income must come from food and liquor would not exceed 40%of total sales, the
closing time would be the same at 2:00 a.m.,and no smoking would be allowed.
Gustafson noted that the Elks and VFW both have unrestricted licenses,but are open only a few
nights. Would they qualify for restaurant licenses? He suggested the Council could look at taking
back those licenses,which would free up two unrestricted licenses. He noted that he was present to
speak on behalf of the Shamxock's application,noting the owners had made a huge investment into
the community.
Matt Kurtenbach felt thexe were nice options presented,noting that Hansen was not up and running
yet and the temporary designation was an option for the Shamrock. He urged the Council to
pxoceed with awaxding the remaining unrestricted agreement to BraVo's until the new oxdinance was
developed. This way the license could generate some revenue.
Reed asked if the Council pxoceeds with issuing the liquor operating agreement on a temporary basis
and goes forward tonight,would there involve time to negotiate and put the lease together and then
come back to the City Council for approval. Reed asked how long it would take to go into effect.
Bxitzman said at the next Council meeting in order to give the public a chance to be informed of
that action item. Reed asked if there would be a waiting period. Britzman said no,it would take
effect on Apri115`h
Dave Kneip commended the Council on woxking hard to achieve the new liquor legislation. He
commented that the special event permit for the Shamrock was a good idea. He endoxsed BraVo's
for the available license. He also noted that he knows Garner Hansen well and that he's a nice kid
who has worked hard. He cautioned the Council not to scrutinize too haxd that he is not a national
franchise;the company he's working with is a good company.
Carol Hansen urged the Council to award the unrestricted license to Gonz Productions. She noted
that Garner also has the Main Street Pub and with the street being torn up this summer, they'd like
to serve liquor up until that point and then gut the building this sununer. The new Shenanigan's will
be the place to go with sports and entertainment including some local bands. She urged the Council
3 �
to issue the unrestricted license to Gonz Productions and retain after July 15`because the 60/40
criteria would not work for his business.
Mike Bailey, Shamrock, said he may want the unrestricted license as well citing concerns that the
60/40 percentage may be difficult for his business with the wedding parties and liquor sales.
Bardey said room rentals would also count towards the 60%non-alcohol sales. He thought video
lottery sales could also count in the 60% category.
Reed asked what the definition of a"printed menu"meant in the new resta.urant legislation. Bartley
said that could be a wall board.
Hansen said he understood the Shamrock's desire to serve alcohol now for theix events because he
knows what type of money and the types of events they stand to lose without liquor. He hoped that
the City could figute something out to help their business. He suggested the convention designation
for the Shamrock,leaving the unrestricted license for his business or BraVo's. He said he wouldn't
mind being able to sell drinks tomorrow and thought Pharis felt the same. Either way,he would
need the unrestricted license after July 1$`. His proposal would need the unrestricted]icense and
BraVo's has indicated they would take the restaurant license.
A motion was made by Munsterman, seconded by Bartley, to place for action on the regular action
agenda a decision on the operating agreement in place;to enter into negotia,tions for that agreement
with criteria in place and action on the negotiated agreement on April 15`�. Di.rcu.r.rion: Action on the
negotiated agr�ement svould occur on April 1 S`�. BritZman urged the Council to knorv hoav the nerv lalv work.r befor�
taking action on dicenring i.rsue.r. He recommended the Council�vork their way thrnugh the ne2v law He.raid the
Council u�ould be free to ir.rue the unrestricted licen.re on a temporary ba.ri.r Hosvever, he felt it rvould be he pful to
have the nesv ordinance laid out before any action i.r taken. It wa.r noted that thi.r i.cruance svould be on a temporary
ba.ri.c only. Bartley said i.r.ruance rhould be�ective until the nerv re.rtaurant cla.cr licen.re.r are i.r.rued. Tho.re licen.re.r
u�ould be non-tran.rferable,i.rrued only to tho.re burine.c.re.r and non-.rmoking. Reed asked if the temporary licen.re would
be until July 1j',a definite time�ieriod, and then re-i.r.rue. Mun.rterman a.rked if the City�'ounczl could take actzon on
the.re t�vo item.c tonight lvithout it being on the publi.rhed agenda. Brit�man.raidye.r, the public ha.r been informed on
thi.r.rubject matter. The action taken by the Council on Apri11 S'b rvould be a�.rolution authoriring the city manager
to sign an agreement. The re.rolution ivould be to is.rue the current o�erating agreement on a temporary ba.ri.r until July
1 f`to BraVo's and:vould have�imilar re.rtriction.r to the neu�re.rtaurant licen.re.r and the Counczl would begin the
proce.r.r to de.rignate the Shamrock a.r a convention hall and i.csue temporary licen.re.c. Motion was withdrawn by
Munsterman and Bardey. No action was taken.
City Council Meeting Action Meeting
Consent Agenda: A motion was made by Reed, seconded by Thomson, to approve the consent agenda
with the following additions: #6A: Action to proceed with issuing a liquor operating agreement and#6B
action to place on the Apri115`h agenda the designation of a convention hall with restrictions as identified
and issuance of temporary licenses and hearing.
A. A.genda, as amended.
B. Action to approve City Council Minutes from the March 11 Meeting.
C. Action on Resolution No. 26-08,appointment of Election Judges for Apri18,2008
municipal/school election.
Resolution No.26-08
Appointment of Election Judges
WHEREAS,a City of Brookings Municipal Election will be held on April 8,2008 for the positions of
three Council members and one School Board member;and
WHEREAS,as xequited by SDCL 9-13-16.1,the City Council must appoint Election Superintendents and
Deputies and set their rate of compensation;and
WHEREAS,the following superintendents and deputies are hereby appointed at a rate of$8.50 per hour
for superintendents,s8.00 per hour for deputies,and a tlat fee of�15.00 for the Apri17,2008 Election
School:
Resolution Board:David Peterson and Larry Hult. Altemate-Karen Cook;PRECINCT 1 -
Tompkin's Alumni Center-Harold�dvey,Supt.,LaRayne Wahlstrom,Richard Wahlstrom,alternate
Madeline Francis;PRECINCT 2-First Lutheran Church-Neva Jean Corlett,Supt.,Norma Linn,
Leslie Tlustos,Maicella Hadley,alternate;Lillian Pengra-alternate,PRECINCT 3-City Hall-Verle
Barg,Supt.,Batb Woolworth,Linda Santema,Russell Lokken,alternate;PRECINCT 4—Ascension
Lutheran Church-Sue Knutzen,Supt.,Marilyn Foeistex,Sharon Anderegg,Kaxen VandexWal,
alternate,PRECINCT 5—Bethel Baptist Church-Carleen Dixon,Supt.,Marlqs Berkland,Sue
Karolczak,Hazel Hauff,alternate;PRECINCT 6—United Church of Christ-Charlene Forsythe,
SupC.,Robert Kortlever,Delores Canaday,Mary Peterson-alternate.
39
D, Action on an Abatement request from Gulbranson Development Company,
Inc. to abate a portion of the 2007 taxes in the amount of$588.00 for NE'/4,
NE'/4 excluding exceptions but including S80' N1430'W238'34-110-50
(Timberline).
E, Action on Resolution No. 27-08, STP—Urban System Priority List.
Resolution No.27-08
STP-Uxban System Priority List
WHEREAS,the City of Brookings has designated cextain streets to be included in the STP-Uxban
System of Streets as defined by the SDDOT;and
WHEREAS,the SDDOT has designated certain funds,Federal and State to be used for construction,
reconstruction and major repaix of the STI'-Urban System Streets;and
VUFIEREAS,the City of Brookings has been requested to establish a priority list of projects to be
considered fox funding by the SDDOT;
NOW,THEREFORE,the Ciry of Brookings hereby resolves that the following projects be
considered in the order listed:
Priority Bid
No. Project Location Year Tyge of Work Lengt�,(�l �iZst
1. 34�'Ave from
US 14 to Prince Drive 2010 Grading,Curb&Gutter, 0.7 $1,250,000
2. Medaty Ave.S. from
20�'St.S.to 32^d St.S. 2012 Milling&Asphalt Ovetlay 1.6 $1,000,000
&Pavement Matkings
F. Action to extend the Temporary Fixed Based Operating Agreement for an additional
60 days and approve $715 per month for an additional two months.
On the motion, all present voted yes;motion carried.
Addition: Lic�,uor O�erating Agreement. A motion was made by Thomson, seconded by
Brunner, to pxoceed with issuing the liquor operating agreement to BxaVo's on a temporary basis
until July 15`. Bardey suggested amending the motion to state: "issuing the license until the new
xestaurant licenses are issued." Both accepted the change as a friendly amendment.
Di.rcuuion: Whaley.raid 2ve'�i.r,ruing the licen.re on a temporary basi.c to BraVo'.r. Her concern i.r that the Cfty ha.r
accommodated the Bailey.r'2vith the temporary licen.reng option. She'd like to.ree.rtated in thi.r operating agr�ement
when the temporary licen.re for BraVo'c e.x7�ire.r, it be awarded to Shenanigan's.ro Han,ren can create hi.r bu,rine.cs.
She.raid BraVo'.r i.r up and running. The Shamrock i.c up and running. Both are doing well. We're ald here to get
bu.rine.r.re.r going. Thi.r licen.re would give Gon�Production.r the opportunity to ventu�into hi.r bu.rine.rs knosving he
a�ill have the unre.rtricted licen.re.ro he can continue on with hi.r avork.
I�eed e.xpre.r.red concern that he�va.rn't >00%.rure that the Shamrnck facility urill�vork norv and into the future under
the neiv re.rtaurant licen.re.c and he�vould need to know that for.cure before is.cuing the unre.ctricted licen.re to another
bu.rine.r.r. The re.rtaurant i.r.rue.rtill bother.r him becau.re the Shamrock i.r a convention facility. He a.rked the City
Attorney to double check the 60/40 food to liquor criteria in order to make.rure the Council fully understanc�r thi.r
i.c.rue and go through thi.r proce.r.r before itgive.r up the la.rt unre.rtricted licen.re.
IYlhaley said.rhe didn't think the Council.rhould give out the dicen.re at all until it had gone through the proce.cr of
defining the new re.rtaurant ordinance,par�icularly.rince the comment ha.r been made that the Shammck may not fit
the criteria. She.raid the City Council i.r here to he p Brooking.r grow and make it po.r�ible for bu.rine.r.re.c to getgoing,
and we have tsvo up and running but are putting the handcu�'.r on another. She noted that the City Council ha.r bcen
lvorking on the liguor licen.re is.rue for S to 6years and ther�'.r been one per.ron here every time lvhen thi.c liquor license
i.r.rue ha.r come up (Garner Han.ren)and the City Council har never made a direct que.rtion to him. She.raid the City
Council ha.r an.nvered everyone else'r gue.rtions, but not his, and i.r not comfortable urith i.r.ruing to BraVo'c urith
condition.r a.r they are.
Brunner a,rked how long it would take to clari�y the.re i.r.rue.r. BritZman.caid he could prnvide re.rponre.r at the April
15`h meeting.
Bartley.raid he didn't think the Shamrock'.r bu.rine.r.r plan war a bar;it°c a convention and banquet facility. A.r.ruch,
he didn't think it would have any i.r.rue meeting the 60/40 rule. If it can't meet the 60/40 rule, then it'r a bar by the
liquor definition. Mo.rt of the chain re.rtaurant.r rej�ort liquor revenue i.r 30%or le.r.c ofgros.c.rale.c i.r liquor and 70%
or higher i.r their food. He didn't think there'd be that i.r.rue�ith tbe Shammck. He 2va.r comfortable they uridl meet
the criterza for 60/40 food to liquor percentage for the re.rtaurant licen,re. He.caid that 1va.r an i.r.rue that�va.r hotly
40
debated in committee and they were a.r.rured that it doe.r. Until the test of time, the reporting requirement.r are there
and they unll have to reporZ the percentage of food and non alcohol receipt.r.
Bartley related to i.r.ruing to Shenanigan'r reque.rt, the Council could continue to i.r.rue the agreement to Bravo'r and
take additional action to i.r.rue that licen.re to another, Shenanigan'.r or not, after the April 1 S'h Council meeting and
that u�ould.rtill allow adequate time. He noted that the City would then be creating a non-re,rtricted licen.re which doe.r
require food. The City Council would have to look at the Shenanigan'.r a�j�lication in a d�rent light. Bartley said
Han.ren:vouldn't have to open a Shenanigan.r he could open a.rtraight bar and tbat.r the i,rsue the Council urill need
to resolve. Do we open creating an agreement that i.r unre.rtricted and then re.ctrict it� He thought it could be done.
Hozvever, once the Council move.r doavn that path, it u�ill need to be careful becau.re the other operating agreement.r the
City ha.r doe.rn't have tho.re re.rtriction.r. He felt thi.r wa.r an entirely d�erent di.rcu.crion regarding i.r.ruing the licen.re in
an unre,rtricted manner.
Thom.ron asked Hansen for clarification if the rea.ron he u�anted the unre.rtricted licen.re after Juy �J`u�a.r to allow
smoking. Han.ren reiterated that the Sioux Fall.r and Aberdeen location.r don't fzt the 60/40 food to liguor
percentage;both being in the 55 to 45 percent food, de�iending on the time ofyear. He felt he ar�ould be in the.rame
.rituation in doivnto2vn Brooking.r, �vhich is very d�erent than either e.rtabli.chment(Shdmrock and BraVo'r). Hi.r
cu.rtomerr come do�vntoum to play during evening hou.re.r. To give him a licen.re that doe.rn't allow.rmoking when all the
other bu.rine.rse.r dolvntown do, svould hinder hi.r bu.rines.r. He ha.r put in an application for a licen.ce for the pa.rt four
year.r. He.raid he need.r to know come Jury �I`if he 2vill have a licen.re. Everyone seems to be in agreement that the
other two 2vi11 get a licen.re and it°r not fair to hold thi.r licen.re and open it uj�to another.ret of people. He.raid it's
only fair to get an an.rwer on thi.r licen.re.
Thomson a.rked if there svas a reuieu�,proce.r.r if the citygranted the unrestricted licen.re and in ayear'.r time at didn't
become the place the Council thought it would become.
Be�dichek raid he felt the City could, with every one of the liquor licen,re,r;on an annual revierv they could rerbke any
licen.ce at any time. He.raid thatju.rt becau.re a bu�ine.r.rget.r a licen.re, it doe.rn't mean the.re licen.re.r are forperpetuity.
Maybe the City need.r to do better to make certain each e.rtabli.rhment i.r doing svhat they.raid they would do� Are
there any uiolation.r� He felt the city could pull any licen.re.r at any time and not ju.rt at the annual review It could be
done mid-.rtream, midyear, if the burane.cr doe.rn't meet the city'r e.xpectation.r. He cited the Old Sanctuary a.r an
examj�le. A oneyear r�vieu�Wa.r di.ccu.r.red and he argued that the City ha.r the right to review all licen.re.r at any time.
He felt if a bu.rine.r.r sva.r not doing what they have told the City they u�osrld do for the betterment of Bmoking.rye.r, the
City could pull them.
Aeed noted that the City ha.r never�iulled a license, even a temporary one;and the city never took it back. He fedt the
City zvould need a major rea.ron to revoke a license.ruch a.r law.r broken, a felon, or too many complaint.r. He felt once
the City makes a decision to award a licenfe;it'c for life. Othenvi.rc, in Sioux Fall.r they sell them;that°r u�here the
difference i.r.
W/eddon arked if the City could i.crue a licen.re norv to a.►pecific appdicant to take�ect on Judy in. BritZman.raidye.r,
but he'd want to knoav the type of licen.re. The City could ret the future effective date for the operating agreement
because they a�ourr to set the term.r. IY>eldon noted that the rules are�ective on Juty �f`. Brit�man cautioned that it
would be premature to do that u�ithout e.rtabli.rhing an ordinance to guide the City in doing.ro and doe.rn't feel the
Council could do that�ectively without everyone reading that ordinance and then acting. Weldon noted how it
u�ouldn't be fair to the applicant becau.re they�vouldn't knoav tvhat rule,r they'd have to follow.
On the motion with the friendly amendment"to pxoceed with issuing the liquor operating
agreement to BraVo's on a temporary basis until the new restaurant licenses are issued." All present
voted yes;except Whaley voted no;motion caxried.
Convention Designation/Shamrock. A motion was made by Reed, seconded by Thomson, to
take action on April 15`�'a resolution designating the Shamrock as a Convention Facility with squaxe
footage requirements and a public hearing and action on the temporary liquor license. Di.rcu.r.rion:
Brunner a.rked if the research on the pr�rriou.r guertion.r from the liquor agreement di.rcu.r.rion coudd be done in time for
the next meeting. Brit�rnan u�ill have information ready at that time regarding horv to tran.rfer the licen.re back from
BraVo's to the City and then to Gon�Pmduction.r. On the motion,all present voted yes,motion carried.
1"Reading—Orclinance No. 12-08. First reading was held on Ordinance No. 12-08,an
Ordinance Revising the Composition,Appointment and Criteria fox Appointment of Members of
the Brookings Health System Board of Trustees. Public Hearing.• April 15�
18t Reading—Ordinance No. 13-08. First reading was held on Ordinance No. 13-08,an
Ordinance Amending Article II of Chapter 22 of the Code of Ordinances of the City of Brookings
4 �:
and Pertaining to the Adoption of the 2006 International Building Code and the 2006 International
Residential Code with Certain Amendments Thexeto. Public Hearing.• April 15'�
1S`Reading—Ordinance No. 14-08. First reading was held on Ordinance No. 14-08, an
Ordinance Amending the Joint Jurisdiction Area Zoning Ordinance pertaining to a private stable as
a special exception in the Residence R-1A District. Public Hearing: April 15th
2"a Reading—Ordinance No. 11-08—Budget. A motion was made by Brunner, seconded by
Bardey, to approve Ordinance No. 11-08, an Ordinance Entided"An Ordinance Authorizing a
Supplemental Appropriation to the 2008 Budget fox the Purpose of PYOViding for Additional Funds
for the Operation of the City. All present voted yes;motion carxied.
Building Upon the Public Right-of-Way—dba dhr Design Services LTD. Discussion was
held on a Request for Building Upon the Public Right-of-Way fxom Donna Ramsay, dba dhr Design
Services LTD, at 310 4th Street, Brookings, South Dakota.
Donna Ramsay,applicant,introduced her attorney Chaxlie Laxson who was to speak on het behalf.
Larson noted they were hexe a month ago and was asked to gather additionai information so the city
council could make a decision on Donna Ramsay's xequest for a building permit and a vaxiance to
build on the public right of way to encxoach on the city sidewalk. He noted that he has that
additional information and requested an opportunity to review the information and asked the
council gxant the variance and building permit at the end.
Larson commented that there are some other issues that have come up, such as if the downstairs
bathrooms are ADA compliant. He said they could discuss this,but it has absolutely nothing to do
with the reason he is present. They are asking fox a variance to encroach in the public right-of-way
and asking for a building permit to pexmit the deck that is currently constructed. In the interest of
time, he suggested those items be left out.
At the conclusion of the February 26,2008 council meeting he had asked if thexe were any concerns
with the 11 criteYia that Mrs. Ramsay has been asked to comply with. The city council discussed and
noted the 3 criteria;one was related to insurance and doesn't know if that's still an issue,another
was criteria #3 which was to provide an adequate site plan. He has provided a site plan containing all
the necessary measurements and critexia,which the city should have received last Tuesday. He
asked if there were any questions and if it met the criteria?
Greg Millex,building inspector, said the site plan was adequate.
Reed asked if this was as-built or if it was the actual plan. This is post construction. Yes,this is as-
built.
Larson said the largest issue was with criteria#1,which was "the applicant shall explore other
altexnatives that would remove the need for the use of public propexty."
Larson said he provided the Council with a Preservation Brief(PB) from the Department of the
Interior. He asked as the council reviews the various changes,he'd like for them to keep some of
these points in mind. The PB reiterates that the passage of the ADA grants a civil right to a.11
individuals. The PB also states that the solution shall provide the greatest amount of accessibility
and that all changes should be reversible. Reversible means that if the new feature wexe later
removed, the essential form and integrity of the building would still be there. The PB states multiple
times that the door everyone should pursue to be located at the front door so people with disabilities
can use the same access as the general public. It is common sense to not require someone to go to
the back door. On Page 7 of the PB,it states that the doorframes should not be widened. The
reason for that is on histoxical buildings,widening the doorframe can disturb the historical integrity
of the building and can change the way the building looks. He quotes the PB, stating that most
historic buildings are not exempt from providing accessibiliry,and with caxeful planning,historic
pxopexties can be made moxe accessible so that all citizens can enjoy our nation's diverse heritage.
Larson said that's what his client is trying to do. She's trying to make the building accessible for
everyone, both fox safety reasons and access for everyone.
Larson referred to the Historic Buildings City Hall Supplemental Analysis and Code Review, dated
March 16, 2008 which reviewed each door option. The repoxt narrative on each doorway is cited
below.
42
"Door No. 1: Cutrent doorway 30 inches wide and is too narxow to meet IBC code or
ADA guidelines as an exit. The minimum width is to be 36 inches. Furthermore the
opening would require a change in the door to swing out in the path of egress. As you can
see from the photo,widening of door may not be feasible without consulting a structural
engineer to analyze the suppoxt of the curved arch lintel over the door and adjacent window.
This modification requires destruction of exterior brickwork,window sill and possibly the
scrollwotk keystone at the center of the arch. Also the opening does not meet the spirit of
ADA or NPS Brief No. 32 for its approach as the "back door" to the facility. If a ramp
were constructed to serve this door, the xamp would need to be located towards the xear of
the building where the existing parking spaces are currently. The accessible route from the
"public way"would require the route to cxoss behind parking spaces (where the current deck
is now) along the alley which is an unsafe condition and should be avoided."
Larson referred to the photograph. The top of the door is an arch that would have to be removed
and this would disturb the historical integriry and make the entrance look different. He noted this
isn't the front entrance,which is not in keeping with the spirit of the ADA. He said they felt Door
#1 has problems. He noted from the report, that this location would require people to go behind
the parking spots to enter the building. Someone in a wheelchair would run the risk of someone
backing ovex them because they couldn't be seen. They would have to litexally go behind the
parking spots to access this door.
Bartley asked if the access to this doorway was half way down the building and that that wasn't
desirable. Yes, that is correct. Bardey asked if it wasn't true that the ramps are currendy there start
half way back on the building. Laxson said the ADA doesn't mean whexe people access the ramp;
it's where they enter the building. They don't want to subject people with disabilities to have to go
through the back entrance. It's not in the same Iocation.
"Door No. 2: Current door is 35 inches wide. Door is too narrow to meet IBC or ADA
guidelines as an e�cit. Widening will xequixe saw cutting of concrete structutal wall. The
steps are poured-in-place concrete integral with the surrounding floot system. Modifications
to this entixe section of the building make any work in this area undesirable. As you can see
by the photo the door sill height can not be raised to the level of the uppex main level
because of a lack of head clearance beneath the steps which serve the second floor. The
landing also serves as a landing fox the stairs existing up from the lowex level. To modify
any portion of this doorway or the stairs to connect the two levels of the main floor would
require considerable structural modifications, the destruction of the cast iron rail and newel
posts o£the interior stair and may in fact create othex code violations."
It's too narrow to meet the IBC,which requires 36"inches. It would require reconstruction of the
door by widening,which would xequire cutting into poured concrete and would effect the integrity
of the building. The biggex reason this door won't work is the height. There's not enough clearance
to get through, so you can't raise the level for a ramp because there wouldn't be enough head
clearance. The architect pointed this out in his report that modifications to this door would result in
other code violations.
Munsterman requested staff comment on each option as we go.
Miller said he didn't have any issue with doors #1 or#2. With door#2, 35"is wide enough but the
location of the door isn't very good. Miller clarified that 35" does meet ADA and IBC standatds.
"Door No. 3: Opening is a modern aluminum storefront set in a modern aluminum
skinned insulated panel wall that is installed at the approxirnate location of the original side
entrance doorway. The current configuration is too close to last interior step and does not
provide ample landing area at the bottom of the steps. From the exterior photo you can
verify that the door system can be raised approximately 34 inches to be level with the upper
main floor but the system should not move towards the exterior fa�ade very far in order to
maintain the exterior brick-work and stone detailing. To make this doorway work,a raised
floor system would need to be constructed over the steps and another exterior landing can
connect to an exterior xamp system. All modification can be made without impacting any
historic fabric. However this location does not meet the spirit of ADA or NPS Brief No. 32
for this approach can be seen as the"back door" to the facility. Satisfying the requirements
of this door to make it an accessible entrance does not however guarantee an compliant
accessible route because not only does this door or door#1 need to be accessible,but also
43
door #4 would need to meet accessibility requirements as well for this to qualify as an
accessible route."
Larson said door#3 will cause many problems. There's a set of steps inside that doox. This would
requixe raising the door 34" and build a ramp to get people up to the doox. Then there would be a
platform where the steps inside. This would result in someone going up a ramp, through the door,
and inside to a level area. This will affect the outside of the building because it will require moving
the door up four feet. Also, this isn't the fxont door so it doesn't meet the ADA criteria. The
biggest issue with Door #3,is if you do option #3, then you must do option #4. He recommended
addressing both issues. Doox #3 won't destroy the historical integrity of the building,but option
#4 will cause significant problems.
Larson said door#4 is an interior door. The front entrance where the deck is currendy on the
northeast side. As one enters that door,it requires a turn to the south to door #3. There are two
ways the architect feels this could be done,but neither one is advisable. The first way is to move the
interior doox to the left, so it would require litexally cutting a new door in and close the wall up
where the doox is now. The reason for that is thexe are steps coming down for the apartments
upstairs, and for fire egxess the door can't swing towards the staixs because that causes fire safety
violation. The doox must swing out to accommodate ADA,but in order to do that it becomes a fire
violation. The architect proposed moving the door. Moving that door would result in having to
move the original electrical service and voice data texmination block. It would be very expensive to
move and is an original feature of the building. These would xesult in non-reversible changes to the
building that would alter the historic integrity. It would require a structural engineer to determine if
it could be done.
The second option is to move the door towaxds the north which would require building a new
room. It would require an alcove with 3 walls and a ceiling. It would xesult in two small unusable
rooms. This would allow the door to swing out,but putting in a new wall causes issues with a
historic building. The demolition to the e�sting concrete wall would be a major project.
He said in oxdex to do door#3, option#4 would also be required, either A or B.
Weldon commented that he didn't believe that cost was a legitimate hardship when considering a
vatiance under state law. He asked the Council to look at Door#3. He asked why that door
couldn't be raised, noting the archway and false alcove, to accommodate the raised elevation. He
said it looked like it would take a less intrusive ramp than is currendy there.
Larson said if you raised this,you would have to do one of the options with door#4. It would still
requite people to get in and out. The architect said that this is possible,but it must include one of
the options with door#4.
Weldon asked Larson if he was saying that door#4 can't swing into room#18. Larson said no,it
cannot swing out because it's a fire safety problem with the apartments upstairs. The egress for fixe
safety is down the stairs. The door would open into their path of travel and the exterior door is to
the left. The swing of the door would cause additional code violations.
Swinging into the room doesn't meet ADA as it needs to be an egress door from that space.
Larson made fixrther clarifications regarding the problems with door#4,citing it swings into the
room. ADA requires it swing the other way, out, for an egress door. It swings inside now. To
swing out,it would result in blocking egress in the stairway.
Weldon asked where the egress fox the apartments was located. Larson said the aparttnent tenants
use the stairs.
Weldon asked what was wrong with leaving door#4 the way it is;that way it doesn't block the steps
or the egress. Laxson said then it wouldn't be ADA compliant. If they made door#4 with ADA
egress, it would have to swing the other way, and they would also have to do just door#4. Just
doing doox #4 gets someone into the xoom.
Weldon commented that it isn't compliant now as built? Larson said it was compliant because of
door #6.
Larson said the axchitect was asked to address the other alternatives and determine if any of the
other doors and alternatives could be used as an ADA egress. He said they are trying to satisfy
44
criteria#1. He looked at the other doors. Doors #1 and #2 won't woxk foY various Yeasons. Door
#3 would require doing#4 as well. The two go together. All that door#4 does is allow one to get
into the room where the exit is,but doesn't allow egress. Door#6 allows someone to get through
and get out of the building and the door swings outward.
"Door No. 4: This door serves as the main secondary exit from the upper main level. The
opening is 36 inches wide. If the doorway was to serve as the main accessible exit the swing
would need to be reversed to swing in the path of the egxess. Doing so creates an obstacle
to those exiting down the stairs (visible just through the door. Door number 3 is just
outside this door and to the left.) To meet accessibility requirements as an entrance/e�t this
opening would be xequired by code to be relocated to eliminate this conflict
Possible solutions:
A) Move door to the east (left in photo) awap from stait to provide adequate landing
area for those individuals coming down the stairs. Within the section of wall to the
left is the,now disconnected, original electrical service entrance (visible in the photo
of door#3) and a voice/data termuiation block currently in use. The option to cut a
new door into the wall could be prohibitively expensive to move due to cutting a
hole into a solid concrete wall with unknown structural implications can not be
determined at this time. The unique historic qualities of the original electric service
panel should be saved if other solutions are possible. Tize relocation of the
voice/data termination block for the building would also be prohibitively expensive
to xelocate if other solutions are available.
B) The doorway could be moved to north (towards the viewer) into room to allow the
egress swing to swing out and not impede into e�t stair. T'his would require the
construction of three walls and a ceiling within the room to create an alcove to recess
the door. An alcove would effectively divide the room and reduce its available floor
area and the ability to use it as an gathering space. The room would become a large
entry vestibule. The change would xequire the demolition of approximately 18 to 24
inches of the e�cisting structural concrete wall that the current door resides in. It can
not be determined if this change is feasible witthout a structutal analysis. This
additional wall demolition is to accommodate the ADA maneuvering cleaxances for
approaches of swinging dooYS (refer to Exhibit 2 of the original report). As stated
for door#3 this option must accompany either option at Door No. 1 or poor No. 3
to create an accessible route for the use of this space as an entrance/exit."
Miller said door#3 could be raised up and it's not compliant as it sits because there's not enough
banding at the bottom for people to walk in and out, so the city staff felt the ramp could have been
put in that doot with it raised. Then the situation with doox#4,the axchitect has used that as an e�cit
to exit people out of the space because the occupant load is greater than door#6 could handle, so
half of the people would have to exit out of Door#4. That situation already exists where the door
swings in;it's already non-compliant as it sits. It doesn't make a difference whether it's ADA or
egress for fire,that's irrelevant. It doesn't swing in the direction of travel for ADA,it swings in the
direction of travel for a fire or for emergency exit. The swing of the door has nothing to do with the
ADA.
Munsterman asked Miller if this was to be the main entrance with the platform with door#3, does
door#4 swing need to change? Miller said the e�cisting building code in the historical building
section of the IBC would allow that door to swing in so as to not change and/or damage the
integriry of that historical building. The city could allow that door to swing in as long as there's one
other door that swings out of that space. The door that goes out from that space does not have to
be ADA compliant. One of the exits would have to meet ADA.
Munsterman asked where that would be in this situation if the landing was in door#3 and door#4
was the way that it is,where would be the other egxess? Miller said the other egress would be doot
#6,but that doesn't have to necessarily be the ADA exit. You have an ADA exit somewhere else.
Munsterman clarified that this satisfies the ADA on one end and egress on the othet. Miller said that
was correct.
Larson asked Miller if he agreed that if door#3 were the ADA entrance would that cause problems
with door#4. He said if he understood it correctly,the City would grant an exception for that door
because it's an historic building. Millex said that was coxxect.
45
Larson said that begs the question,why can't his client get a variance if the city will allow an
exception on the inside, all his client is asking for is a variance which is an exception. He noted that
the deck is constructed, so if his client were to get an exception fox door#4,it would tequire tearing
down the deck,move this dooY up four feet,put a ramp in,put some block on the inside to go up
the staixs, just to get an exception which is all his client is asking fox now. Door#3 cannot be ADA
compliant without door #4,which has been established. But,because it's a historical building
there's a question whether or not his client has to comply with the ADA and he thinks that she
does. The ADA states that any time you make a change you have to make the building as accessible
as possible and historic buildings are not exempt from that. Door #6,is as accessible as possible,
and won't make a code violation for fite safety. He said we all agree that door#3 cannot be made
ADA compliant without door#4 being changed and wouldn't be fixe egYess safety compliant.
Miller noted that door#4 isn't compliant now as it e�sts.
Larson asked which is it; does his client have to comply with ADA or doesn't she. Miller said when
referring to that door not being compliant, the city is authorized to allow it to swing in to a historic
building. Larson asked because it's a historic building, his client can have an exception. Miller said
that was correct and it's part of the code. It's not part of the exception staff makes;it's an exception
the code gives. Larson said the code also states the building be made as accessible as possible. Miller
said yes.
BaYdey noted that the code grants the exception for that door swing. It's not an issue as it exists
because it's a historic building. Laxson said no;as it is now, the Preservation Brief, citing the ADA
and the Department of the Interior, `historic properties are not exempt from the Americans with
Disabilities Act requirements. To the gxeatest extent possible,historic buildings must be as
accessible as non-historic buildings."
Larson said if door#6 couldn't be made compliant, then there would be an exception that no doors
would need to be made compliant,but they can. Door#6 swings out satisfying fire safety and
ADA. The building is as accessible as possible without destroying the historical integrity of the
building ox without causing othex code violations. Because you have a historic building,you don't
get a free pass but you do get a little leniency if it's not feasible. Here, door#6 only required the
installation of a ramp. Door#6 allows entrance and it's also the front doox,which is what the ADA
says is the best door to do.
Munsterman asked if the Disability Committee was in the loop on this. He asked if we had any
information on this.
Shari Thornes, City ADA Coordinator, clarified that the Brookings Committee for People with
Disabilities role is to advocate for people with disabilities and one of their activities is to provide
informal technical assistance. She noted that the technical assistance is intended to be informal
guidance only. She did facilitate the Committee's interaction with this private business and the
Committee made a recommendation to the City Manager as that time in 2004 to review the City's
policies and ptactices to provide for a resolution to at least look at a variance ptocess. That was
done by the Committee making a recommendation to Alan Lanning, the City Manager at that time,
and the city went foxward and drafted a resolution with Steve Britzman involved. That resolution
went to the Historic Preservation Commission and they made some changes to it and now the
Council has the final product before them.
Munsterman asked if they went thxough that process.
Thornes said the Committee looked at this issue and felt a review of the City's policies was needed
and to create a xesolution and the City did so. That was the Committee's recommendation related to
this project.
Reed asked Miller when he is doing an inspection and making decisions based on historic or ADA,if
that was actually a variance or something else. It seems like it's at two diffetent levels of variances.
The variance that the Council gtants is for a bigger issue.
Britzman agreed that this issue can be confusing. Thexe are different types of variances and we
understand that variances need to be looked at where we have an ADA problem. He noted that the
ADA is also fle�ble. Not only does the city have to be fle�ble in looking at variances of its rules;
the ADA also allows a person some room of fle�bility so that for example Mrs. Ramsay's building
was new construction, then door#6 wheYe the current deck structure is located would have to meet
46
specific issues. The ADA requirements would be xeviewed and be somewhat different. It would
have to meet the criteria of new construction. However,with a historic building that deck can be
made as ADA compliant as readily achievable. That would not necessarily lead to the same xesult if
you had a new building. It's to do the best you can under the circumstances to make it ADA
compliant. If constructing a deck on a historic building,in the location where the deck is now, she
needed to come all the way to the lot line in order to make it as accessible as possible and the city
had a setback and tequired 3 inches away fxom the lot line, the city would need to look at a variance
to make it accessible. On the other hand, he said he thinks thexe's a distinction between the types of
variances. Granting that type of variance might be one within the setback or property. That is a
policy decision of the council or building official. The distinction and the real crux of the issue
before the Council is whether the city is required to go beyond granting a variance and actually
conveying a property interest. Does the law require the City to convey property in order to meet the
ADA? He thinks that conveying pYOperty is different than gYanting a variance. That is the legal
position he would take is that it is different to require a city to convey a property interest. In this
case,we have a property line (lot line) and the ADA would look at that deck and if it was located
within or on the property line as surveyed,it would still be the best that could be accomplished
under the ci�cumstances if it was right on the lot line. It's a matter of small distance to get back to
the lot line. It would only shave a cextain amount of the deck off and would likely be functional for
those with disabilities and meet the ADA requirements because there the property owner would
have done everything that is readily achievable within the property ownership interest that she has.
To him, that would be ADA compliant if kept within the lot line. That's why he doesn't feel that
going over the lot line is necessary to comply with the ADA. You don't have to grant a variance at
that particulax location to comply with the ADA. He questioned if the ADA is hard and fast and
you have to have a deck with this many square feet? That's not the case with a historic building,but
could be the case with a brand new building. In this case,if she does all that is readily achievable for
her, the key words—"readily achievable," it's to make it usable for people with disabilities. The one
advantage we have is that thexe isn't that much distance involved and trimming it back to the
property line would not make it not accessible or usable by people with disabilities. He illustrated
these points to show how far does the city have to go in accommodating this request.
Thornes stated that she had reviewed all the findings and xeports from staff and the ciry attorney
and would agree with all of them related to both historic preservation references and the ADA. She
commented that from both the preservation aspect and from an accessibility aspect it's
commendable that Mrs. Ramsay would wish to improve the accessibility to her building,but historic
buildings present challenges in accessibility. She agreed with Mr. Miller in that a xemodel does
require spaces be made accessible but to the maximum extent feasible. In the historic building and
in many cases that just isn't possible. In many cases providing access through the front door isn't
possible either. In a historic building its desirable to provide access to all the spaces;however,not
all like spaces have to be made accessible under the ADA in a historic building. It's all about
programming and pxactices. Accessibility can be provided through modified business practices and
programs. Back to the historic structure and the integrity of the building,reversible is desirable but
alternations including widening a doorway can be done to pxovide access and the National Park
Service would allow it. A good example that she pointed out to the Council is the former Carnegie
Library,which is a city owned facility providing access to a National Register individually listed
building,which provided access,but not thYOUgh the front door. That was done with modifications
of a window made into a door with a three stop elevator on the side of the building. Access through
the fxont door was not technically feasible.
Larson said there's a difference between the example Thornes cited and Ramsay's building because it
is feasible and she's done it. The greatest extent feasible. It is feasible through door #6 and cutting
out a window isn't necessary. He agreed that the ADA does grant leeway,but it says to the greatest
extent feasible making it as accessible as non-historic buildings and that was done here. It didn't
require moving a window,or rebuilding walls,all it requires is a couple inches of the city sidewalk.
He agreed with Britzman in that it's just a few inches. His client isn't asking for the entire sidewalk.
As for the property interest,by no means is Donna Ramsay asking for a pxoperty interest in that
pxoperty. One of the other criteria,if the building was destroyed,removal of the deck would be
required. She agreed and is not claiming a property interest. She is just asking for a variance. As for
shaving a few inches off,it's not going to matter to him,but it would matter to someone in a
wheelchair. He'd hate to see someone have go to a different door ox see someone carried up over a
few inches. He agreed that it's not much;it's just a few inches. He pointed out an earlier illustration
a month ago. T'he case could not have been any closex. It involved a historic building in a
downtown district that required a ramp on the city sidewalk to be ADA accessible. That memo said
the city has to grant the variance and that was for the entire tamp to sit on the sidewalk. His client is
asking for 10 inches and feels it's dramatically different and the way she's doing it is so minor. Just
47
asking for a little leeway. One of the earliez things is for the betterment of Bxookings—grant
accessibility for historic buildings. Allow people to come in and out and it's safe to do so. That's
the betterment of Brookings. The building code is to pxotect people and that's all they are asking
for.
"Door No. 5: This door as an e�t,let alone as an accessible exit is completely impossible to
modify to meet any code and can only be seen as an e�sting condition and left as-is. The
passage is too narrow. There are head clearance issues which can not be overcome without
modifying another set of staixs which serve the upper floor and a tequired exit stair from the
lower level. All the doors are 30 inches wide and because all of the walls are poured-in-place
concrete,with structural ties between walls, floors and stair construction,this area cannot be
widened without major structural engineering and construction expense."
Bardey commented that the historical significance isn't in play at this time. Larson clarified that the
door isn't the issue;the historical significance issue that he's been xeferring to is the cutting out of
bxick into the building. Laxson noted that the ADA doesn't focus on the door itself;it focuses on
the building. That's why revexsible changes are bettex.
Larson closed by referring to a television commercial he's seen with someone in a wheelchair who is
unable to access the voting pxecinct through the front and has to use the side door. The message in
the comtnercial is to "do the right thing" and Laxson said that's all his client is asking for is fox the
City to do the right thing. It's not just on Donna's wish, the federal goveYnment does require
variances when it's reasonable to do so when it won't inflict hardship on the city. He didn't believe
gxanting a variance cxeates a hardship on the city.
Public comment:
Doris Roden, 727 Main Avenue, said with the passage of the ADA act, access to all properties open
to the public is now a civil right and under Tide 3, owners of places where the public is invited must
make readily achievable changes. That means changes that can be easily accomplished without
much expense. When alternations,including rehabilitation and restoration work axe made, then
specific accessibility requitements are triggered. Those requitements were triggered fox this building
—they're necessary. ADA states whenever possible, access should be through a primary public
entrance. To even suggest that original steps at the front of this building should be replaced doesn't
make sense to her. The steps occupied more space in the public right-of-way and forced people
with limited mobility to a secondary entrance. Roden said she attended the trial of the City of
Bxookings vs. Ramsay and what she witnessed was the judge's frustration that the two parties could
not work out a vaxiance for accessibility into a building with zexo setbacks,which most of the
buildings in the Commercial Historic District are. He admonished both sides that they should woxk
together to make that happen. If the existing ramp and deck need to be modified with specific
details or by a matter of inches to accommodate the needs of people with limited abilities,then she
asked the City to work with the propeYty owner to make that happen. She suggested the Council
members put themselves in that position. Roden said she interpreted a denial of the application as
unwillingness on the part of the City to work with the properry owner to support changes at the
primary entrance to accommodate individuals with limited abilities.
Tom Bozied commented that he couldn't believe the City was still talking about this issue five yeaxs
later. He said about five or six yeaxs ago he had a piece of property and on the west side of the
property the lot line was on the street and the city asked if they could have an easement to put a
sidewalk in. He said he didn't undexstand why some common sense couldn't be put into play here.
It seems to him that if the city can ask fox property through an easement,then why can't it go the
other way? He said the only thing he can think of is common sense.
Karen Cardenes, 316 17`t'Avenue South, stated how pxoud she was of Donna Ramsay. She didn't
know Donna until a couple yeaxs ago and came late to this issue. She agreed with Bozied and
doesn't understand why we're still at this issue. Donna did something that a lot of the owners of
downtown historical building owners have never attempted to do,which is to make theiz properties
accessible. She has a personal background. Her late husband was disabled. When she taught at
USD she served on a corYUnittee that was working on making that institution accessible. One reason
she served on that committee was once she attended a faculry meeting and heaxd comments from
colleagues suggesting there be one accessible campus out of all the state's universit�es, and all of
them can go to that campus and the rest of us won't have to worry. One of the issues they had at-
USD was a lot of historic buildings and it was difficult to make them accessible. In the course of
working on that committee she met a lot of people including a pexson from Siou�c Falls who was
4 �
quadriplegic. He came on campus one day when there was heavy snow and she learned very fast
you can have all the curb cuts you like,but a 4" snow drift won't make much difference. He
reviewed various accessibility features,he noted that most disabled people have been told for so
long that they have no right and they have had to fight so haxd to get to whexe they are. You don't
have to worry about the little tiny things,but you have to try to make accessibility as much as you
can. At SDSU, they make education accessible. If there's a classroom that's not accessible they
move the class to an accessible location. You can't do that in the entertainment business. If you
hold a wedding or reception, the event can't be moved somewhexe else.
Brunner asked staff for backgYOUnd on the court niling, the lawsuit, and the appeal that already took
place, and review it so he makes sure he understands the stop work order that was issued and how
the process played out.
Munsterman asked staff to review from square one. He didn't know when Donna came to talk
about her deck.
Greg Miller provided chronological history. It came to light in spring of 2004. Mrs. Ramsay came
into his office. She called Greg and asked Steve to come and inspect the deck. When he went to do
that he looked for a building pernut and thexe had not been one issued to build that. He brought
that up to her and that's when this started. She came in to get the building permit. At that time the
deck was framed up,but without the ramp. The deck and stairs were framed without any railing ox
decking at that time. She requested he look at the framing to do an inspection on it and he
commended her for calling his office because she felt she had a pernzit and had been using the same
permit from 2000. He couldn't find there was any mention of the deck on the permit that was
issued in 2000. From there, she wanted the City to issue a building permit for that deck and in
looking at it they didn't have any way of deter+„ining where the property line was because there
wasn't a plat dxawing that showed where the building sat on that properry. So his office asked for
that,like they do for any building permit,asked for a site drawing on how this structure would sit on
the pxopexty within the line. That is what was asked for at the time and did not get one. So the city
said they could not issue a building permit without having the set of plans. From thexe, over the
course of possibly a year, there were several letters sent by his office to 1VIrs. Ramsay. In 2005 they
were starting to build the ramp onto the deck and at that time he went ovex and issued a stop work
ordex. They were working at the time. He put the tag on the side of the deck and said until this gets
tesolved on the pxoperty line and a building perniit in place,work needs to stop. They continued to
build over the tag and built the ramp, and from there went on to court.
Britzman said it was in the fall of 2004 that the issue was brought to the City Council which
promoted the establishment of these criteria. Following that, there was quite a bit of discussion
about the criteria and lot line. Then a series of letters occurring aftex that time period requesting
Mrs. Ramsay come in to get the building permit and then it reached a point in time where the
construction continued,as indicated by Miller,and work continued on the deck after sending the
letters. That prompted the City to take legal action to enforce our building code because we didn't
have a building permit and we made it clear that we needed one in the correspondence. This is
consistent with the facts that the Supxeme Court found, and that was that there was not a building
perxnit issued on this property for this deck. The Court found in the trial the stop work order had
been violated. And, the building/deck was constructed on public property without prior
permission. The complaints that gave rise to that case all were issued long after we had a discussion
in the Council Chambers about the problems with the locations of the structure. The case was
affiYmed by the Supxeme couxt and won't disagree that the Court suggested, as mentioned by Roden,
that it would be ideal for the parties to get together and communicate,and that was probably lacking
along the way in terms of open communications on this particular issue. For whatever reason, the
dialogue was not established satisfactorily. The couxt case has been concluded and affirmed
convictions on those three ordinance violations and the issues before the council now are just
somewhat affected by that paxticular case,because the City Council has a real narrow issue before it
and it's no doubt that it's a complicated legal issue. We formed an opinion that may be technical
and may not solve the decision that each city council member must make. Oux opinion is that the
deck does not have to be the same dimensions to satisfy the ADA. We felt the deck could be
constructed in such a way that it would not encroach upon the public right-of-way,and now we
unfottunately have an encroachment. Tom Bozied made the comment that it's not a large
encroachment and Britzman said that we all know that. At present the deck does not have to be its
current size to comply with the ADA. He said he thinks it has been a legitimate question if it will
meet ADA standards, and thinks there is no doubt that the deck does not have to be that size to
meet ADA standards.
� 49
Brunnex asked Larson and Ramsay if they agxeed with that timeline and asked if there were any
discrepancies in that timeline as pxovided.
Larson said the story doesn't start in 2004 when Greg MilleY went to check on the deck. Larson said
Donna Ramsay went in to get a building permit in 2001,working with Ray Froehlich and Pete
Bolzer to make her building ADA and fire safery compliant. He noted that Froehlich was not called
to testify at her criminal txial and there's no testunony on this,but it's never been refuted that
Froehlich worked with Ramsay to get where they're at. She clearly thought there was a building
permit for the deck. She's the one who cailed and requested an inspection before install.ing the
boards,illustrating that she wasn't trying to hide anything. Larson said the other important point is
that Donna went in and filed for a building permit and was denied. She was told at that time that
thexe was no way that the city engineer would provide a variance. That wasn't true, there was a
method. Two months before Donna requested a variance,Robb Rasmussen (Sioux Rivex Cyclery)
requested a variance for ornamental reasons and Dan Hanson sent a letter saying go ahead. It was
xeally that sunple. So Donna was required to go in front of the City Council and the Council
develops the criteria after she has already applied and that's why we're here. Much of the
chronology was right, but was trying to fill in the blanks.
MunsteYman requested claxification on the variance.
Miller said the difference on the Rasmussen building was they were putting a new fa�ade on the
building so they encxoached by the thickness, almost half the thickness of a brick. There is some
language that allows enctoachment for a fa�ade.
Munsterman said the variance that we're talking about two diffexent sets of criteria.
Miller said that the city didn't have a variance procedure to allow something to be built on someone
else's property. A variance procedure is allowing one to build within a setback which is still within
the owner's property, not on someone else's property. The city doesn't have a vaxiance procedure in
place to build outside of the property line other than what the City Council came up with in 2005.
Munsterman commented that this is a real defuung point that Britzman was trying to make. When
the Disability Conunittee looked at this they made the recommendation and the Council approved
the variance to allow someone to build on someone else's properry,rather than within their property
line. That's the variance process the City Council was asking Ramsay to go through in 2005?
Britzman said true. Ramsay appeaxed in front of the Council,but the criteria was not satisfied the
fitst time she appeaxed, and was invited to come back but she did not. He thinks the testimony at
the trial was that she didn't desire to pxoceed under that criteria.
Larson noted a letter from Dan Hanson granting permission to build on the city right-of-way, 4
inches, for ornamental facing. He asked if the distinction was that for ornamental reasons you get a
letter,but for the ADA you have to comply with 11 criteria? He said he didn't understand the
distinction;we're building on the city right-of-way either way. Othex than one is fot ornamental
reasons and one's to comply with the ADA,he didn't see the distinction.
Britzman said he knows that distinction does exist. That fa�ade does not begin at the ground level,
but raised where that occurs. There are technical distinctions for intrusions on the right of way that
are distinguishable.
Larson disagreed that the fa�ade intrusion, stating it is on the sidewalk and Hanson's letter says it
only applies to the first story, so it can't go four inches above ground level.
Britzman noted that Dan Hanson has addressed the distinctions between the two issues. He
believes that there is a distinction between that issue and this particular request.
Larson asked for clarification from Britzman on the size of the deck. Britzman said the size of the
deck is determined as to what is readily achievable. Assuming the property line was a private
property owner,Ramsay would not be required to comply with ADA to build the deck on hex
neighbor's properry.
Larson didn't think that was a good analogy because the ADA requires that cities make exceptions
to their policies and procedures and that's what they are asking for.
50
Britzman noted with the policies and procedures, there's a dist between conveying. Is the city of
Bxookings required to convey a property interest of some sort or right to occupy the city's pxoperty?
That's a legal distinction.
Laxson said he's never seen anything that required the city to convey that property. His client is
asking for a variance and not asking to convey property.
Britzman asked if the deck could be made smallex and still comply with the property line. The deck
would still be ADA compliant,wouldn't it?
Larson said that was his point;that the deck cannot be made smaller. It could be reduced but it
would not be ADA compliant. •
Britzman disagreed that the deck would be ADA compliant because with a historic building the
standaxds for ADA is as large a deck is as xeadily achievable and that's all the way up to the property
line.
Larson said it was the ciry's responsibility to meet the "readily achievable" test by granting variances
to their policies and procedures. Latson said obviously door#6 is readily achievable,and didn't
think it was productive to argue back and forth at this point.
"Door No. 6: This opening is the current main entrance and is a modern aluminum
storefront door. It is 36 inches wide and is considered the"front" doox to the building and
is thus the most desirable to maintain that function as an accessible entrance as well. In the
current configuration no modifications are required to the opening or the door leaf itself.
However the accessible route will require a ramp and deck surface to meet the requirements
of current building codes. The curxent deck constructed on site very nearly meets current
codes with some modifications fox the addition of handrails,modified tread nosings and
walking surface demarcation required to bring the structure into compliance with ADA
guidelines. Upon field measurement it was found that the deck railing was installed 74
inches in a perpendicular measurement fxom the face of door. Per ADA guidelines,chapter
4.13.6. Figure 25 (see original report's Exhibit 2)when a door is approached from the side as
the front entry is, an area 54 inches wide by the width of the door,plus 24 inches is required.
Field measurement of existing ornamental brick around the door shows that the brick
projects 10 inches into this clearance. It could be argued that the effective appxoach to the
door could be required to be 64 inches (54 inches plus the 10 inches of bxick projection)
instead of the current 74 inches. The projection of the deck could be reduced by 10 inches
and if the AHJ would make a ruling on the oxnamental brickwork at the front entry, this
projection could be reduced even further. However to meet the code minimum, the deck
landing area/door approach would require the deck to project onto the sidewalk."
Britzman said the architect�.vould probably agree that it would still satisfy the ADA if you reduce the
deck size.
Thomson asked if what is being suggested about reducing the deck size is to shave off the area that
encroaches on the public right-of-way. Britzman said also on the alley side,to be technically
compliant. An ADA officer auditing the building would say that you've done all you can do within
your property.
Bardey asked what the encroachment was on the sidewalk. Miller said 1'4"or 1'6" onto the north
sidewalk. T'here was discussion regarding exact measurements,but Miller felt it was over a foot.
Larson asked if Mille=would agree that the encroachment is less than 30% of the width of the
sidewalk,which is one of the criteria. Miller said yes.
Bartley asked for exact measurements ox a range. It was noted that the different surveys give
different measurements. He agreed with Bozied that it seems this gets a bit ridiculous. He asked
what the encroachment was on the alley;how many inches, feet?
Larson said it is 1'S" on the sidewalk. Miller said a survey shows 4" on the alley side. He noted that
the city had a survey done that shows somewhat different,but both are over the property line.
Bartley asked if the alley was not an ADA compliance issue to narrow that. Miller said that was
correct and the deck could be narrower to satisfy the city issue with the encroachment on the alley.
51
Bardey noted that the encxoachment on the alley xight now has nothing to do with the ADA,it
would be required to be corrected. Millex agxeed that he would want that corrected.
Bardey said a paYt of this variance would be to allow or remove the alley encroachment. Larson said
there are two different ways to do it. One survey flnds a 2-3 inch encroachment and the other
survey finds no encroachment. He noted that the landmarks downtown are not all to scale. The
surveyor conducted two diffetent methods; one resulted in none and the other was two inches. To
be fait to the Council,Larson said he provided the one with two inches. He noted that it's less than
30% and not a safety issue.
Miller said from a local surveyor verifying that the deck is encxoaching 6"into the alley and 8" at the
end. There is a discrepancy in the two surveys.
Bardey said there seems to have been a communication issues on both sides of this issue and if both
sides are going to give a litde on this particular one,he personally doesn't like the encroachment into
the sidewalk as far as it does and maybe splitting the difference for half. The party would have to do
reconstruction on the deck to bxing it into compliance with that variance and coxrect the alley
completely. If we're going to make a compromise,both paxties have to suffer somewhat in the
solution. One party has to xeconstruct the deck and the other has to give up a little variance. He
asked Britzman if that would be possible
Britzman said that would be entirely possible,but it would be up to the Council.
Bxitzman asked Millet if there would be any problem with the city if the encroachment was reduced
by half. Miller said he didn't have a problem with it and could vexify where that is. The other issue
is bringing the ramp up to code. Right now it is not compliant with the code,which he discussed
with the architect. The slope is adequate,but it's without railings and the ramp surface must be
addressed.
Laxson urged the Council to grant the building pexmit and agreed that there are some problems
because his client stopped building and was crimuially convicted, so she does need to do more work.
He urged the Council to grant the pexmit and if Ramsay doesn't comply within a reasonable amount
of time, then she can come back. It's not a xeason to prevent it;it's a reason to grant the variance so
she complies with the building permit.
Baxdey asked for clarification on what issues the Council needs to resolve,asking if the council
would take action on granting a variance and issuing a building pernut. Miller said staff was looking
at two issues of the alley side and the sidewalk. Staff didn't feel there was any reason for the deck to
encroach over the pxoperty line on the alley. It doesn't serve any purpose and was built after the
fact over the alley. The other issue is up the council (related to the sidewalk encroachment).
Bardey asked as to the proceduxe this evening to grant a variance and a request for a building permit.
Britzman said it would be action to grant a variance under the criteria to allow a structure to remain
on the public right-of-way. That is the decision fox the Council.
Bartley asked if the Council makes that decision this evening, then the building permit could be
gxanted. Britzman, said yes, that would be correct.
Bezdichek asked Bardey to think of it as accessibility within the building. The lower level cannot get
to the top level and now we're talking about getting accessibility to the top level,but the top level
can't get to the lower level. So the person in the top level will have to go out the same door they
came in,go down the ramp to go to the bottom level. He asked Bardey why we aren't trying to fix
this on the inside. We can get to the lowet level but can't get to the top and now we can get to the
top, but can't get to the lower. He questioned if this was reasonable. He said it just doesn't make
sense. F�it inside. Now we're at the top,what are we going to do for a variance to get that person
down to the bottom? Bardey said it appears that they'll have to go outside and down through the
bottom door.
Larson noted that Ramsay bought a$3,000 ramp to get people from the bottom to the top,but
couldn't install it for logistical reasons. Larson said she tried.
Bardey said we will fight this thing foxever,but if we grant some sort of variance,meeting in the
middle, but requiring the distance off the alleyway be maintained. It will cost them some money to
52
bring the ramp into compliance anyway, so let's just make it correct. If we feel that reducing the
encroachment by half would allow fox decent access to that front door and Donna agrees to that,
obviously thexe'd be some expense,but he'd feel better if it encroached by half of the distance rather
than the full distance. The amount could be debated,but the compromise would solve the issue at
this point.
MAIN MOTION: A motion was made by Bardey, seconded by Munsterman, to reduce the
encroachment on the north side by the sidewalk by 50 percent, that we eliminate the encroachment
on the alley, and that the deck be brought into compliance with the building code and ADA.
Di.rcu.r.rion:
Larson re.►ponded to Bartley's comment that both.rides.rhould.ru�'er. He.raid Aam.ray ha.r.rpent thou.rand.c of dollarr
on thi,r i.r.rue, .rhe'.r been criminally convicted, rhe'.r been humiliated, .rhe's been in the pre.rr: .rhe'.r.ru.jf'ered. It'r hard for
him to.cay 2vhat is j�ropo.red i.r rea.ronable becau.re Kam.ray ha.r already.ruffer�d. And no:v sve'r�a.rking for a variance.
The deck i.r tvhat it is and he doe,rn't really underrtand�vhy it'r in the middle and u�hy it.r not one or the other. If at'r
not a.cafety i.r.rue, it i.r j�urely compmmi.re becau.re you don't rvant it to go on forever.
Bartley said part of it is comp�nmi.re, but reducing it a full foot and a half doe.r make it a little ADA acce.r�ibde.
Taking.rix inches o�in.ctead of> %2 feet maybe make.r it mor�acce.r�ible and.rtzll meet.r the criteria to a certafn degree
and the applicant asked for our con�ideration for the people�vho are di.cabled and half the di.rtance i.r a con�ideration
on their behalf.
Keed.raid u�hen we look at this i.rsue and hou��ve are going fonvard, that deck doe.rn't exi.rt. He.raid that°r u�hat we
need to brzng it back to—there i.r no deck ther�. He noted he ivent through the.rame mi,rtake per.ronally rvhen he put
in a driveway that encroached too far into a frontyard, and a,r he went fonvard he inve.rtigated how much it u�ould co.rt
to cut it back even though he�va:c going for a variance. Even though he kne�v that a mi.rtake rva.r made and,ro�vhen
he approacbed for a variance, he didn't approach that it's there, can we change it. He said he apprnached from thi.r i.r
:vhat I u�ar thinkin� applied for a variance, and ignored the fact that it�vas already done.
Beed.raid a.r the Council i.r talking about thi.r, he felt the compmmi.re tva.r reasonable, but cited the March 2008 TSP
report(page 8)that.rugge.rted the deck landing could be reduced by 10 inche.r and.rtill meetADA. He.raid thi.r i.r
the comprvmf.re the Councid i.r talking about and it'.r in the TSP rzport. I,YIe did need to go through each i.r.rue and
receive comment.r fir.rt from.rtaff I�eed a.rked Miller if he agreed rvith that.rtatement in the report. Miller.raid ye.r, he
didn't personally mea.rure it, but the architect did.ray it could be reduced 10 inches fmm the exi.rting.rtate and.rtill
meetADA. That's 10 inche.r at the 90%angle from the door. It u�ould probably leave a little encmachment, a
matter of a couple incbes, according to the architect. Larron.raid to clarijy theguidelines, it'.rgoing to pull the diagonal
part back and part of the deck would.rtill be at that 1 S inch encroachment. Reed.raid the point is that thi,r type of
rvork should have been done at the beginnin� but in.rtead the deck rva.r continuously u�orked on. I�hat he come.r back
to i.r thi.r i.r the kind of agreement we.rhould have had in the fir.rt place. If we u�ant to negotiate how far it i.r, he'c okay
uiith that. The que.rtion wa.r all or none, but he felt the point is are ive going to do u�hat can be done and that.rhould
have been done before the deck sva.r built. The deck doe.rn't exi.rt.
SUBSTITLJTE (withdxawn): A substitute motion was made by Reed, seconded by Whaley, that we
follow the recommendation that is provided on page 8 of the TSP report, that the deck could be
reduced by 10 inches. Di.rcu.r�ion on substitute motion: Thomson asked if it wa.r 10 inche.r on north.ride and
nothing on thealley.ride. Keed.caid the alley doe.rn't matter. Bartley had nn problem to reduce to 10 inche.r. Bartley
,rugge.rted making it an amendment rather than a.rub.rtitute.ro that the other item.r could remain in the motion. Reed
and Whaley withdrew the substitute motion. NO ACTION WAS TAKEN.
FRIENDLY AMENDMENT: Reed made a motion to amend stating,"to follow the
recommendation that was provided on Page 8 of the TSP Report dated March 2008 in the design of
the deck as drawn being reduced by 10 inches." Bardey and Munsterman accepted the amendment
as friendly.
ACTION: A motion was made by Bartley, seconded by Munsterman, to grant a variance to
allow for a structure to remain in the public right-of-way by reducing the encroachment on
the north side/sidewalk side by foUowing the recommendation that was provided on Page 8
of TSP report dated March 2008 report in the design of the deck as drawn being reduced by
10 inches,eliminate the encroachment on the alley, and bring the deck into compliance for
building code and ADA.
Di.rcu.r.non:L.arron a.rked to clarify, because it may be t�vo d�erent thing.c He.raid the architect explained it to him
that the 10 inche.r u�a.r from the door out so it would pul!in the diagonal part but not affect the other�art of the north
�ide. It u�ould reduce the encroachment, but not everything ivoudd be pulled in 10 inche.r and 1va.r concerned there u�a.r
53
d�erent interf�retation.r. If thir i.r purruant to the architect'r report that'r one thing, but if it'r to pull everything in 10
inche.r, that'.r another. Mun,rterman.raid the Council ha.r made the motion pur.ruant to Mr. Wie.rkamp'.r report and
believed that iva.r identified.
Lar.ron sugge.rted a counter pmpo.ral. I�amsay zva.r urilling to pull in the north.ride by 10 inche,r pursuant to the
report, but the ea,rt.ride that encroache.r by an inch or tsvo he reque.rted to leave it 2vhere it i.r becau.re the co.rt would be
prohibitive. It ivould require cutting off theentire,ride of the deck and rej�lace it for tu�o inches and the north.ride is an
ea.rier fix. In the,rpirit of compromi,re, �ve're a.rking to do that and Donna would appreciate it and maybe we could get
thi.r thing re.rolved. [Y/eldon asked if the deck rail would have to be adju.rted any2vay. Miller.raid the guard rail would
have to be rai.red. Larron.raid that tvouldn't include cutting ttvo inche.r o�of the deck. Miller said it would have to be
moved to cut two inche.r off Lar.con.raid a.r far a.r bringing it up to code,grant the permit,grant the variance,give u.r a
rea.ronable amount of time to bring it up to code, that 2von't be an i.r.rue.
Bartley.raid it.reem.r to him that the City avould tvant to remove the encroachment on the alley a.r a matter of
�iracticality Gecau,re the city may have reque.rt,c in the future and there are other things happening that encroach into the
alley and he 2vould hate to.ree the city go doum the.rlij�pery.rlope of allo�ving orre and.raying no to otherr after that.
He recommended the Council.rtand fa.rt on removing the encroachment(in the alley)and agreed that it i.r an additional
e.�en,re but,co i.r going to.Federal Court, .ro he hoped 1ve could re.rolve thi.r and cut a coupde inche.r o�the deck and
replace the railing becau,re zve need to anyzvay. He'd feel more comfortable if we modified that and granted a fesv inche.r
in the front(.ridewalk.cide).
Larron.raid a.r for a.rl'rppery.rlope, I�obb I�a.rmu.rsen wa.r granted a four inch variance for ornamental rea.con.r and
they re a.rking for t�vo inches here. It°r built, and he didn't think people wauld go out and.rtart buidding deck.r that are
ADA compliant that encroach into the city.ride�valk. He think.c the counter jiropo.rad i.c more than reaaonable and
2villing to give in. She's fought thi,r for fouryearr and noiv i.r 2villing to comply with the architect'r report. He noted
that the Council ha.r the ability to grant that variance and u�ed them to do.ro and a.rked that they not make herjump
through any more hooj�s and cut the re.rt of that deck o�'
Mun.rterman a.rked if we are nx inche.c or two inche.r into the alley. Miller.raid it'.r either 6/10 or 8/10 of a foot.
I�haley.raid.rhe wa.r looking at thi.r a.r more of a�iroblem in the alley with.rnow and carr, that'f a tremendou.r
amount. With having to get the deck back onto Ram.ray'.r pmper y, having to com�ily with the one in the frnnt, and
ave're,rtill encroaching out farther than.rix inche.r which i.r far2her than Basmu.r.ren'.r She.rugge.rted it may be ea.rier to
remove the deck and.rtart over u�hen you're talking about the a�nount of time, �ort, and materia!it would take to get
the deck out of the right-of-way. It may be easier to.rtart over to make it.rmaller.
L,arson.raid nou�sve're talking about the d�erence in the t2vo.ruruey.r u�hich wa.r tu�o inches. Bamsay sva.r todd she
couldn't u.re the city'.r.ruruey. He que.rtioned if,rhe couldn't u.ce it then, why are 1ve u.ring it nou�. Mun.rterman a.cked
u�hy.rhe sva.r told that,rhe couldn't u,re the.ruruey. Larron,raid he didn't knoav, it,rhould have been a matter of public
record, but,rhe?va.r told that.rhe could not.rubmit the City'.r.ru�vey to.rati,►jy criteria#3. Midler commented that the
City paid for a.rurvey for the court ca.re. The.rurve,y svasn't done prior to going into courl
Whaley agreed with BeZdichek and'noted that 7ve have thi.r big deck in the alley and it encroache.r on the.rideu�alk, but
in order to go dosvn to the banquet in Section A2 you have to go out,ride, around, and come back in. She felt it iva.r
ea.rier to.rtart over frnm day one a.r af the deck doe.rn't exi.rt and everything goe.r back to.rteps like it'.c.ruppo.red to and
everything i.r folloTVed from there.
Thom.ron.raid,rhe svant.r to.ree a ramp that alloiv.r acce.r�ibility up to that level, but.rhe doe.rn't want to.ree it
encroaching on public right-of-�vay. Aegarding the earlier comment made about accommodating.rtudentr attending cla.r.r
at hi.rtoric building.r by moving the cla.r.r location, could adro be.raid about event.r held in thi.r buildfng. She.rugge.rted •
rather than the upper level, an event could be rhifted to the main level that allow.r them to acce.c.r the buidding like able
bodied j�eople can.
I�eed,raid the�vay zve're looking at it, �ve a�trying to work torvardr�ADA and to say we're not friendly to it i.r
unfaar, becau.re it wa.r a proce.r.r i.r.rue and we're trying to zvork thmugh it and that's rvhy he r�commended it the�vay
that he did. He reiterated that the Council.rhould look at tha.c is.rue a.c if the deck didn't e.xi.rt and ho�should it be
done correctly.
Brirnner Agreed with Bartley about finding a com,bromi.re;the.rolution urith the ten inche.r on the north and foldowing
the TSP re�iori Hozvever, he i.r not a,r ympathetic to the additional cut.r to the alley becaure there tva.r a.rto�i u�ork
order i.r.rued that 2va.r not follo�ved, and had.rome of thi.r been taken care of a feivyear.r ago zve may not have had the
additional co.rt.r of the alley encroachment. That i.r a.rticking point for him;the proce.r.r with the lack of the permit and
.rto�i work order i.crued andyet the deck wa.r completed. He commented that the mea.rurement discrepancle.r fn the adley
were.romething�ve.rhould have.rolved a feu�yearr ago. He liked the pm�iosed comj�rnmue becau.re it i.r�vorkable, it
54
.rtill meet.r ADA compliance and i.r.rtill cogni�ant of the need.r of.romeone in a wheelchair. It may mean a little more
zvork on the atley.ride of the deck, but it.rtill meet.r the need.r of tho.re 2vho need the ADA compliance and at the.rame
time not encroaching on the alley.
L.ar.ron a.rked for clarification on the motion the lvay it read.r now.
Larron noted that per the judge's order, the deck ufas to be removed by April 15J�. He doe.rn't kno:v what Bam.ray
svill do. He a.rked if he could u�ork on.rome agreement to extend that deadline. Brit�man said that timeline coudd be
extended. It'r for the.ru.rpen.rion of the fine.r, but the judge did order the tu�o partie.r to communicate but we�vere
delayed a bit rvith additional information and that.rbouldn't work agafn.rt Mr.r. Ram.ray. Brit�man recommended 2ve
could:vork out an arrangement on the timing to comply svith the.ru,rpended fine.r.
Weddon asked if the city,rhould have a date to get an an.ru�er fiom the j�ropery osvner if thi.r propo.ral wa.r acceptable.
Ho�long u�ould.rhe have to comply if the motion u�a.r approved�vith action taken? Mun.rterman thought once the
council vote.r, that deci�ion i.c made and compliance would have to occur.
BritZman a.rked ho2v long ivould rhe have to comply if this motion i.r approved�vith the action that�ve're taking
tonight. i,Y>e can work out arrangement.r on the fine.ru.rpen�ion i.r.rue if the city counci!alloiv,r him to do that.
Miller recommended 30-60 days regarding the timefiame to is.rue the permit. Bartley asked horv long once a permit i,r
i.rsued is normal to comply, or doe.r the Council need to e.rtabli.rh that time addre.cred in a motion. Miller said it is
until completion, or until u�ork ha.r stopped for 180 day.c. After that the permit i.r revoked.
Thom,ron.raid.rhe think.r the City Councid i.r a rea.ronable grosrp and.rhe�vanted to impre.r.r on people that
communication i.r key to any kind of j�mgre.rs that take.r�ilace. She noted that.ro many people, zvhen they have an
issue before the Council, .ree each of the Council memberr individually�vhich give.r the Counci!a better underrtanding of
the i.crue. She hoped that if anyone ha.r any i.csue.r an the future, that they ar�afraid to communicate�vith the Council
members individually.
Bartley commented to addre.cr Weldon'r que.rtion. If the Council pa.rse.r the motion that.ret.r the building permit
parameterr in place,Mr.r. I�nm.ray�vould have to apply for that permit in a timely fa.rhion to avoid the court ordered
fine.r Wlould that be an admfni.rtrative deci.rion? Weldon a.rked�vhen we would get an an.rtver if it i.r acceptable to the
pmper y owner or not.
Lar.ron said it will take time to obtain a contractor and e.rtimate.r. Donna svidl have to think about thi.r. If the
building permit i.r granted and if Donna reject.r the variance, then the building permit i.r gone. We want to make.cur�
that all vote.r are done tonight and they don't have to come back before the Coxncil. He e.rtimated it rvould take.rix
month.r to fini.nc�on.rtrarction.
Brit�man a.rked if.comeone unll be advi.red if,rhe decide.r to not pmceed.
L.arron a.rked for 30 days to decide u�hat to do. .
Bartley a.rked how doe.r that fit urith the court.r. BritZman and Lar.ron would need to r�ach an agreement on the fine
.ru.rpen.rion. With the appeal, the time period tva.r.ru.rpended. Where sve ar�at right noav is hou�much time i.r on the
fine,r. Thi.r i.r a.reparate i.rsue and notguiding u.r here. It i.r a perronal matter for I�am.ray. Brit�rnan noted that the
applicants met the expectation of the court to bring thi.r i,rsue to the Council.ro�ve.rhould svork out a rea.ronable
timeframe to proceed with the deck and removal proce.r.c. Bartley a.rked if thi.r.rhould be an amendment or a.re�iiarate
motion. A.reparate motion zvoudd be ea�zer.
ON THE MOTION: All present voted yes;except Bezdichek voted no;motion carried.
ACTION: A motion was made by Brunner, seconded by Reed,that the property owner has thirty
(30) days to respond back to the city in terms on whether she will proceed. All present voted yes;
except Bezdichek voted no;motion carried.
Liquor License Process. Reed said the City Council has had one liquor operating agreement on
the shelf until a decision was made,which was done tonight. However,he was concerned what
happens with that license after July 15C . Does it go back on the shelf?He'd like the Council to come
back and discuss that process as to what happens to that license. ACTION: A motion was made by
Reed, seconded by Whaley,to place discussion on the Apri115,2008 work session regarding the
process for the unrestricted liquor license after the restaurant licenses are issued. Munsterman asked
if the ordinance would take a montb. BritZman.raid he could have a draft for the Apri!15`b meeting. Bartley
.raid hi.r full intention i.r that rve'll i.r.rue that licen.re once it come.r back. He thinks u�e.rhould and if Shenanigan'.c i.r
55
the pro�ier vehicle then sve should addre.r.r that, but.ctill need a di.rcu.c.rion to a.r.re.r.r if we need to adverti.re again or not.
All present voted yes;motion carried.
Larson noted that the building permit issue hadn't been addressed. Munstexman said the building
pexmit would not be council action. Britzman asked staff if any further information or
documentation was needed to pxoceed with the pernut. Miller said they would need to work out the
encxoachment on the east side noting there is a pin across the alley by the corner of the Fite Building
and maybe that can be verified by measurements in comparison with the survey. Miller said he
didn't know if it's 2 or 6 inches and that's a lot of difference, and he wants to know which survey he
is supposed to follow. No further council action is needed.
AdJourn. A motion was made by Thomson, seconded by Reed, to adjourn. All pxesent voted yes;
motion carried. Meeting adjourned at 9:16 p.m.
CITY OF BROOKINGS
�
o��f c�?Y oFe cott D. Munsterman,Mayor
z fA... .�.
Z: �'q o:z
�� 1 99 .y
�n; � f
n�1�' f•. �� ' <���
0
ari Thornes,City Clerk