|Councilmembers Present||Staff Present|
|Councilmember Pflumm||City Manager Gonzales|
|Councilmember Neighbor||Deputy City Manager Charlesworth|
|Councilmember Jenkins||Assistant City Manager Killen|
|Councilmember Kemmling||City Clerk Powell|
|Councilmember Vaught||Finance Director Rogers|
|Councilmember Meyer||City Attorney Rainey|
|Councilmember Sandifer||Planning Director Chaffee|
|Councilmember Kenig||Parks and Recreation Director Holman|
|Development Services Dir. Wesselschmidt|
|Public Works Director Whitacre|
|IT Director Bunting|
|Chief Codes Administrator Thompson|
|Street Project Manager Bowman|
|Senior Project Engineer Lindstrom|
A. ROLL CALL
COUNCILMEMBER MEYER: Good evening. Welcome to tonight’s Council Committee meeting. My name is Stephanie Meyer. I am a Councilmember from Ward III, and the Chair of this Committee. Besides myself, the Councilmembers here tonight are Jim Neighbor of Ward I; Dan Pflumm, Ward I; Eric Jenkins, Ward II; Mike Kemmling, Ward II: Jeff Vaught, Ward III; Mickey Sandifer, Ward IV; and Brandon Kenig of Ward IV.
Before we begin our agenda, I'd like to explain our procedures for public input.
During the meeting I will offer the opportunity for public input. If you would like to speak to the Committee at any of those times, please go to the podium. I will ask that you state your name and address for the record, you may offer your comments. So that members of the audience can hear you, I would ask that you speak directly into the microphone. By policy, comments are limited to five minutes. After you are finished, please sign the form on the podium to ensure we have an accurate record of your name and address.
I would also like to remind Committee members to wait to be recognized and to turn on your microphone when you would like to speak so we can get a clear and accurate record. And please remember to turn it off when you’re done. I think we have a max of five mics on at one time so it’ll trick everyone up if we don’t.
B. ITEMS FOR DISCUSSION
1. DISCUSS POOL ENCLOSURES AND SAFETY DEVICES.
COUNCILMEMBER MEYER: We have three items on tonight’s agenda. The first is to Discuss Pool Enclosures and Safety Devices.
Staff has identified a conflict between the Zoning Regulations and the 2012 International Building Code regarding the means to secure residential swimming pools. Planning Director Paul Chaffee will present several options to correct the conflict.
MR. CHAFFEE: Thank you. Paul Chaffee, Director of Planning. The purpose of the presentation this evening is not to address any specific issue, but rather to provide you with an opportunity to come up with a broad policy as to how we want to administer the current regulations that we have. So the PowerPoint will make note of what our current requirements are, sort of give you a review of what pool covers are, how they’re installed, what requirements that they have, issues regarding fencing around such enclosures or just fencing around pools in general, provide information on what other cities do for their requirements and then present you with some options that you may want to consider in the broader picture for our use in the future.
So, as Chairman Meyer stated, we’ve identified a conflict between the Zoning Regulations and the 2012 International Building Code regarding the available means to secure residential swimming pools. First of all, the Additional Use Regulations for Residential Zoning Districts, and they’re the same for all of them, whether it’s R-1, RS, RE, require that swimming pools be contained within a fence extending from ground level to at least six feet above grade. The 2012 International Building Code requires that the top of a barrier for a residential pool be not less than 48 inches above grade measured on the side of the barrier that faces away from the pool. So here’s sort of the first conflict we have. The Zoning Regulations require a six-foot fence where the Building Code would only require a four-foot fence, or minimum a four-foot fence. The Building Code also provides an exception that a swimming pool or spa with a power safety cover complying with ASTM F 1346, which is an industry standard for swimming pool covers, need not comply with the regulations between of 3109.41 through 3109.43, which talks about fencing requirements. The chief building official may approve the use of a power safety cover if satisfied it meets those conditions. So, if the safety meets the conditions of the Building Code, it does not have to be fenced, that the safety cover provides the secure documents.
The Building Code further provides guidance regarding the construction of the barrier when it’s used and the Zoning Regulations do not provide additional guidance other than it needs to be a six-foot fence. And I think the intent of the Zoning Regulations is pretty clear that the six-foot fence is designed to keep people out, from getting into the pool area. Specifically, the Building Code addresses the distance between vertical members of the barrier as well as the clearance between the barrier and the ground. So, the parts of the fence that don’t go up and down, that go sideways, there’s a difference in height and then how wide the slats can be between those barriers.
So, if the fence -- if the vertical members are less than 45 feet in height, then the cutouts can’t exceed more than 3¼ inches, and the size is based on the foot width of a young child that’s intended to keep and reduce the potential for a child to gain a foothold that attempted to climb the fence. If the distance is more than 45 inches, then the slats can be four inches apart. And the reason for that is the Building Code figures that once the slats get to be four feet, or over 45 inches in height, then it’s less likely that a child could use the vertical members to be a ladder to help climb over the fence.
The vertical clearance between members at grade and the bottom of the barrier should not be more than two inches measured from the side of the barrier away from the pool. So, the bottom of the fence to the ground can be no more than two inches high, and the vertical spacing of the members of the barrier to prevent young children from being able to squeeze through or climb over the fence to gain entry to the pool area.
The Building Code also addresses gates. And it states that access gates are to be equipped to accommodate a locking device. A pedestrian access gate shall open outward away from the pool and shall be self-closing and self-latching. And additionally, the Building Code states that barriers are located so as to prohibit permanent structures or similar objects from being used to climb over the barrier. So, if there’s an outhouse or a pool house or a cabana that’s on the outside of the fence, the fence needs to be a certain distance away from them, so someone can’t use that to jump over or climb over the fence.
Then the standard for pool covers for their performance requirements is that pools with a diameter of greater than eight feet shall be able to hold a weight of 485 pounds, the pool cover. Pools of less than eight feet diameter shall hold a weight of no less than 275 pounds, and that the cover shall drain substantially all standing water from the cover within a period of 30 minutes after cessation of a normal rainfall. So here’s a picture of a pool cover that’s holding a family so the pool cover did meet the standards, it would have to hold the weight of at least 485 pounds. Generally pool covers are made of a fabric or a mesh material. The sides are guided on and off the pool by tracks placed along each side of the pool, and I have a couple pictures that will show you that. The tracks can be mounted to the top of the deck or hidden along the top edge of the inside of the pool. And two types of controls are available to activate the pool cover for its opening or its closure, either by weatherproof toggle switch or a touch pad control switch. This is a picture of a pool cover where the track is on the outside of the pool and it just runs along a little cog system and pulls itself out from one into the other. And here is one that’s installed under the lip of the pool.
Staff did a survey of the Building code departments and planning departments to determine how other cities handle fences for swimming pools. In Blue Springs, there’s no specific requirement for height of fence around a pool, although there’s just a minimum height requirement for all fences. In the Building Code the pools do need a fence and do they allow a cover in lieu of a fence and they do not. In Leawood, the fences and pools are in the Zoning Regulations, the exception for the pool cover has been removed from the Building Code and so the pool cover is not allowed in lieu of a fence. In Lee’s Summit, the regulations are not included in the Zoning Regulations. They’ve removed the exception and so they do not allow a pool cover in lieu of a fence, so they require that they be fenced even if they have a pool cover. Lenexa, the requirements are in their Zoning Regulations. They’re also in their Building Code and they’re also allow cover in lieu of a fence and they found themselves, when we made the call down to Lenexa, they’re in the same situation that we’re in, that they have conflicts in codes and didn’t realize it until we started asking some questions, so they’re sort of in the same position we are. In Olathe, the requirements aren’t in the Zoning Regulations. They are in fences and covers are in the building code and they do allow for the exception for if a pool cover is provided, they do not have to provide a fence and the same is for Overland Park, they follow the same regulations.
So what we have are three options that we may wish to consider. The first one would be to remove the fencing requirement from the Zoning Regulations and keep the Building Code requirements. With this option a fence would not be required if a pool cover that meets the manufacturer’s standards is installed.
The second option would be to amend the Zoning Regulations to reduce the minimum fence requirement to four feet and add clarifying language about the fence and gate requirements to match the Building Code. And amend the Building Code to remove the exception for the alternative. With this option, even if a pool cover is installed, the Building Code and Zoning Regulations would still require a four-foot fence to be constructed.
And another option would be to amend the Building Code to remove the exception alternative and change the fence requirement to six feet. With this option, even if a pool cover is installed, the Building Code and Zoning Regulations would still require a six-foot fence.
And to make note, if we make any changes or recommend any changes to the Zoning Regulations, those would be accomplished through a public hearing through the Planning Commission, and then they would forward their recommendations onto the Governing Body as any text amendment is to the Zoning Regulations. However, if we want to make an amendment or remove the exception from the International Building Code, that can just be undertaken by an ordinance by the Governing Body and doesn’t have to go through the Planning Commission.
COUNCILMEMBER PFLUMM: So, that’s Item Number 3?
MR. CHAFFEE: That’s Item Number 3.
COUNCILMEMBER MEYER: Thank you, Paul.
MR. CHAFFEE: You’re welcome.
COUNCILMEMBER MEYER: Is there any discussion from the Council? Dan and then Mickey.
COUNCILMEMBER PFLUMM: If I can get this thing to stay on. I kind of like Item Number 3 there, to keep the six-foot fence. So that would be my first preference.
COUNCILMEMBER MEYER: Mickey.
COUNCILMEMBER SANDIFER: Well, I’ve told a few people, you know, there’s been question about the strength of the material. Now, whether it would age and get weaker, I don’t know. I don’t -- a lot of people don’t probably realize it, about four or five years ago there was a young lady from Shawnee and they were driving, I believe it was in Kansas City, Missouri. They got lost. It was snowing, I don’t know how many inches, six to eight inches of snow on the ground. I believe they slid off the road and were walking through back yards to get up and try to find some help. They stepped on one of these through the snow and actually fell through. One of them didn’t make it. One of them didn’t go all the way through it and was able to get away from it, but her friend didn’t make it. I’m in favor, as Dan said, I’ve seen too many kids drown in these pools. And you have, too. I know you have relatives. And I’d say the six-foot fence -- if they want to put a cover on the pool to keep the leaves out and keep stuff out, they can put a cover on their pool. For safety issues, you know if we allow them not to put a fence in, that doesn’t mean that, well, I’ll come back in 30 minutes and put the -- pull the pool cover back up. All it takes is one time for that child to walk over there. All it takes is once. You know and we do not have to comply with the International Building Code. You know, we can pull it or we can stay exactly the way we are. I don’t have a problem allowing them to put covers on, but I don’t want to get rid of the fence ordinance. That’s where I stand.
COUNCILMEMBER MEYER: Right before Eric jumps in, I would say that is an incredibly sad story, Mickey, absolutely. Nobody wants that to happen. But I think I’m torn on it because we don’t actually really know the circumstances. It could have just been a plastic pool cover that was not meant to be doing what it was doing and that these girls stumbled upon. I mean it just doesn’t -- to me that doesn’t jive. I’ve seen these pool covers. Our Codes people are going out and looking at them. You could practically drive a car on one of these things and I can’t see in my mind how something that is closed by a lock and key that you can walk over, that you can drive over without falling in is in any way less safe than a fence. I would say that it was more.
COUNCILMEMBER SANDIFER: I will agree. If somebody wants to drive a car through it, you can drive though any fence. But how do you know what kind of material is under the snow? You know, you have no idea if somebody put -- if it was old. The material that they say has to carry 485 pounds, in ten years it may not carry 485.
COUNCILMEMBER MEYER: And in ten years a fence could be deteriorated to the point that you could just walk right through it or just pull a slat off, I mean where do we go with that? Eric.
COUNCILMEMBER SANDIFER: I don’t even want to argue with you on it.
COUNCILMEMBER MEYER: All right.
COUNCILMEMBER JENKINS: I have just a couple comments on this, I am in the process of putting a swimming pool in my back yard, so I looked at these automated covers where you can just cover the pool, and they’re really wonderful and all that kind of thing, maybe. I hear to the contrary too. It’s kind of hard baling all the leaves out of these sunken ones and stuff once you get it in there. But the bottom line was for me that I think the covers are great. You can walk on it, do whatever, but the problem is, are they going to actually close it every time they get out of the pool. And I don’t know too many people that are really good about just making sure that everything is shut down every time they quit using something. So, a cover is only as good as the owner and their willingness to practice good safe procedures and close that pool cover every time that they leave. I don’t think that’ll happen, and I hate having to insure against the maybes, but the bottom line is that’s a pretty strong maybe there that that pool will often not be covered with the automated pool cover and a fence would be very useful at that time. And if you’re going to have a fence, I don’t see you doing a four foot fence, I see you going to the six. I know that I was very comfortable in looking at my pool in whether I wanted a four foot or six foot and the six foot was required anyway, so I looked at that and I’m happy with that myself because it gives me that little bit of added safety measure. I’m the owner of that pool. I sure don’t want to have to pull some kid out of there someday that made a mistake of jumping in there and got hurt or something so for me, it’s kind of a no brainier. I would like to see the Item Number 3 there, amend the Building Code to remove the exception alternative and change the fence requirement to six feet.
COUNCILMEMBER MEYER: Jim and then Jeff.
COUNCILMEMBER NEIGHBOR: Yeah. I would -- first of all, I checked with my insurance agent, which is American Family and also with State Farm and both of them, if you have swimming pools, obviously there’s a liability and both of them ask if they know that you have a pool, they want you to have a fence around it of some sort. I agree with the others, I support the six-foot fence. My daughter has one of these covers, she lives in Lawrence, on her pool. It’s nice. It works. You put it back and forth, but the thing, as you saw the people standing on the pool, when you stand on it, it goes down. And I have also seen Sam’s pool, as you saw there when it was hooked to the side, actually you could get maybe two, or three, or four inches of water in the pool trapped there before it starts to run off. And if you have a young person and also the other part is, you know its fine when its new, but you get out there if it’s wet and its slippery and its dirty, they’re going to have a hard standing up and I would offer that if you have a small person gets out there and slips and falls, they can drown in six inches of water just as well as they can drowned in eight. So, I think they’re a good idea, but I think they’re a convenience, but I’d go with the others. I go for Item Number 3.
COUNCILMEMBER MEYER: Jeff.
COUNCILMEMBER VAUGHT: I would just say on that, and I’m not huge fan of the covers. I would just say on the fence though we need to -- I believe my association, if I’m not mistaken, we can’t build over a five-foot fence. So, I think we need to kind of look at our fence height and say either, I mean I wouldn’t be opposed to a four-foot around a pool. It’s a little bit easier to jump over, but maybe instead of six foot or a maximum allowed by the association language or something to that effect or maybe a five foot. I think most of the City associations are a five-foot fence, is it, Paul, I think, isn’t that correct?
MR. CHAFFEE: There are many that are the 48 inches.
COUNCILMEMBER VAUGHT: The max 48?
MR. CHAFFEE: Max of 48.
COUNCILMEMBER VAUGHT: So we, couldn’t, you know, you would say that you can’t build it. Every time they did they’d be coming in for a variance on a fence or they’d have to go to their -- this would be forcing them to go in front of their association and getting approval to build a taller fence, so I don’t know how we address that. I mean do we -- I don’t know. Anybody else’s guess.
COUNCILMEMBER JENKINS: Well, Paul, wouldn’t that be inappropriate because the homeowners association can’t have a less restrictive requirement than the City? They can have a more restrictive requirement, but you can’t go the opposite direction. They couldn’t have a lower fence requirement than that’s what’s mandated by City ordinance.
MR. CHAFFEE: That’s correct. The City can’t enforce homes association deeds and declarations that are not --
COUNCILMEMBER JENKINS: I mean, the point is moot really. I mean --
MR. CHAFFEE: -- that do not meet the City’s standards.
COUNCILMEMBER VAUGHT: Well, I would just say then I would prefer, and I’m fine with a fence, I just think you see a lot of wrought iron fences now but somebody’s going to build a wood fence/ I think a six-foot fence is pretty restrictive, maybe a five foot. We have a little bit of line of sight over the top of it or you end up getting neighbors who, and I said I don’t know if a foot is going to be a big -- we have an eight-foot wrought iron fence around our pool at Crimson Ridge and kids jump over that, so whether it’s four foot, five foot, six, or eight foot, if a teenager wants to go over it, they’re going to go over it. Two year olds don’t go over it, and I know where you’re going with that. I’m not worried about the teenager clearing the fence, I’m worried about the two year old. So, I think with, I mean, I think maybe five foot makes a little bit more sense but whatever you guys want to do.
COUNCILMEMBER MEYER: Mickey.
COUNCILMEMBER SANDIFER: And Mr. Neighbor made a point there. Being slick and slippery, now if you have a cover on the pool, what does 12 inches of snow weigh? So, if you’ve got 12 inches of wet snow on a pool and somebody stands in it and you’ve already got 550, 650 pounds of snow on it and somebody steps in it, what’s that going to do? You know back to that, what the weight of the cover would hold. You know, so.
COUNCILMEMBER MEYER: Yeah. And I know a lot of these, if not all of these covers have a little sort of water cleanup device that goes around and as soon as there’s any water that starts collecting on the top of this pool they don’t want that to ruin the track on their system so it goes around and cleans up the water too. I don’t think that there’s going to be a foot of standing water any more than there’s going to be a foot of standing water in a frigging curb that a kid could drown in.
COUNCILMEMBER SANDIFER: (Microphone off) -- the ground. That was wet sticky snow. It was not melting, running off. You couldn’t go over there and scoop up the water or suck it out of there. That was heavy wet snow. If that was 12 inches deep that would have probably ripped one loose and if you would have put a hundred pound person with it, you have a very good possibility somebody could have went through it.
COUNCILMEMBER SANDIFER: Brandon.
COUNCILMEMBER KENIG: I’m just going to make a comment. I think in terms of the fence I would go for a four-foot fence, because I think that four foot versus six foot, it still provides a barrier and it establishes the same objective and I think it provides some leeway. When I think of six-foot fences, I think of privacy fences and that seems a little bit restrictive for me. So, if we’re going to go for a fence, I’d like to provide some leeway. Because I think a four-foot fence provides a buffer, provides a barrier ultimately to prevent accidents, and so I think that accomplishes the goal. Just my two cents.
COUNCILMEMBER PFLUMM: If we don’t have a lot more comments I’d just make a motion that we go with –
COUNCILMEMBER MEYER: Well just a sec. I think we have people who want to speak yet.
COUNCILMEMBER PFLUMM: All right.
COUNCILMEMBER MEYER: No, you’re fine. You’re fine. So given that, is there anyone from the audience who would like to speak to this item?
Sir, if you want to come up to the podium here and state your name and address. And I would emphasize that this is talking about a general policy issue rather than a particular situation that you might be familiar with. Thank you.
MR. MARTIN: They moved the podium. My name is Grant Martin, (Address Omitted), Shawnee. I guess all I have to say is I tend to agree with Mr. Sandifer and Mr. Jenkins over there. And if you every watch some enterprising three and four year olds, they can push something up against a fence, plus if they live in the house, in the residence where you can put a chair, a small stool, and if it’s four feet they have enough strength to get over that. Six feet is going to be a lot more difficult. The other thing too, is a lot of times you have to look at the material these covers are made out of. Over a period of time they can experience ultraviolet degradation which makes them brittle. And another thing I’ve also seen plasticized material when it gets under subzero weather it becomes very brittle. That doesn’t mean that what’s being sold out there is going to do that, but I’ve seen plastic material, it doesn’t behave the same as when the temperature is 70 or 80 degrees. So that’s all I’ve got to say.
COUNCILMEMBER MEYER: Thank you sir. And if you’ll sign the sheet on the podium there, there should be one maybe.
MR. MARTIN: I’m not – this is something new for me.
COUNCILMEMBER MEYER: If there’s nothing there, you’re fine. I think, Brandon, do you see it? Nope. All right. Never mind, sir. All right.
Still adjusting to the new system a little bit. Thank you, sir.
MR. TUBBESING: Hi, everybody. Kevin Tubbesing, (Address Omitted), Shawnee. Is this working?
COUNCILMEMBER VAUGHT: Yeah.
MR. TUBBESING: I don’t know if that works. So, there’s probably a number of pictures -- do I have to push something? The master controller. You know, I’m not -- I’m just going to show you a few pictures that are, you know, kind of on here of -- you already saw that one. I like this one the most. You know all of these -- Dawn and I have been looking into this as we’re looking at us building a new home. And I mean the reality is that the pool covers, yes, I mean obviously UV light over an extended period of time can degrade the pool cover, you know, but the fence falls apart. Cedar fences fall apart, you know, after five to ten years as well. What I’m hearing, and, you know, this is not opposition to anybody’s viewpoint, but what I want everybody to think about though is that for an extended period of time the code structure that the City has adopted over the years, you know, has been dealt with by the Uniform Code that goes through hundreds of thousands of hours of experts determining, you know, what should be allowed or what’s safe and what’s not. And whereas, the City of Shawnee for years has done, you know, has made exceptions to either accept the code or not accept the code. It’s the 2012 code, you know, that we live by now and there’s 2015 that is one that’s current right now. I mean I think that to look at all of our expertise with pool covers as opposed to maybe our personal feelings, maybe discounting the actual basis by which Shawnee has chosen to regulate itself in the form of codes. And this code which is pulled from the 2015 code as Paul mentioned, does clearly allow for an automatic pool cover to replace a fence. A couple other things I guess you know just to point out along the way, you know the example of snow and somebody or a foot of water even, however you want to look at on top of the pool cover, quite frankly, I think it’s a whole lot better than the six feet of water that they would land in. So let’s not look at you know that as a, I mean the pool cover is still better than no cover at all from that perspective.
The code, the regulations and everything else that we’re looking at, none of that requires an automatic gate closure or anything that closes the gate to the fence. It actually doesn’t even speak to, I mean how many times, if staff would be able to answer this, over the history of Shawnee have we actually gone and enforced a code post facto, a house being built and the pool being installed of the integrity of that fence? I don’t think there is an example. So, to actually think that the -- a fence of any type, be it four feet or six feet, and that the City wants to actually you know kind of enter the realm of maybe a homeowner association, for example, wishes to put a code into place that’s of a, not a code, but rules, if you will, within their subdivision, that’s of higher standard than that of the City, that’s reasonable. And anyone of us that lives in a home association has to live by that standard.
The reality is though I believe that another thing that the Council should consider here tonight is whether or not there is perhaps an acreage exception. I mean if you’re over three acres or over five acres or what-not of land, and you’re not just a couple, you know, 15 feet from your neighbor, which all you know pretty much single family subdivisions are, should there be an exception within the structure that you’re asking for in the code or in whether its regulation or code that you’re going for. So, I guess what I’m asking for tonight is for you to look past the examples that have been given tonight. You know, Eric, I understand you looked into pool covers and so did I, and quite frankly I found them to be exceptional. You know the pool covers that were attached firmly on the sides that were not just put on there by bungee straps, I mean these ride metal rails. You can’t get into the sides of them whatsoever. Like anything else in the home that is a safety issue, be at your roof all the way down to your sidewalk, quite frankly, there’s going to be maintenance in a home, so after 15 or 20 years is that pool cover going to have to be replaced? Possibly. And again, I’ll ask you how many cedar fences, which is the standard of fencing that we use in this area, how many of them after even ten years has true integrity without maintenance? So number one I would ask for a large lot exception that if an automatic pool cover is used be considered. Number two, I would ask that the thousands of hours that are put into the code structure that we adopt as a City be highly considered as we go about this decision as opposed to using our personal feelings, frankly as not experts, but maybe rely on those that we’ve chosen to print our codes for. So, thank you very much.
COUNCILMEMBER MEYER: Thank you. And if you’ll sign the paper on the podium. There may be one now.
MR. TUBBESING: The one that’s here.
COUNCILMEMBER MEYER: Thank you.
MR. TUBBESING: I think you know where to find me.
COUNCILMEMBER MEYER: Is there anyone else who would like to speak on this item?
Come on up, and if you’ll just state your name and address for the record.
MR. KNAPPENBERGER: I’m Scott Knappenberger, (Address Omitted). And I have two young children at home, one is four months of age and the other is three years of age and we currently live next door to a house with a pool cover that does not have a fence in it. As a physician, I’ve dealt with seeing many children die and it’s an awful thing. So, when I looked into the safety aspect of this, the CDC number one cause of death in children under the age of four that is not congenital is drowning. The majority of these happen in residential pools. And if you look at the CDC.gov website they highly recommend a barrier fence around the pool. If you look at, I don’t know how this works. This is poolsafety.gov or The Consumer Protection Safety Division. Let me read that correctly. U.S. Consumer Products Safety Commission has specific safety barrier guidelines for residential pools. And I understand that thousands of hours go into those research, and in the medical field we rely on things like the CDC to guide us. And you know they say, you know, this is not safe and we need fences around the pools and the U.S. Consumer Protection, which is a government agency, says we need fences around the pools and it’s to protect these children. And I, you know, can give pictures of standing water on this particular pool cover that I’m speaking of. I know you guys said not to speak about specifics, but at the same time I have pictures as recently as Thanksgiving when we had that torrent rain over the Thanksgiving holidays of standing water on the pool cover. And I just don’t feel that it is my responsibility, you know, to you know, worry about my children’s lives about -- so that my neighbor can have a pool cover instead of a fence. And that’s basically what I have to say.
COUNCILMEMBER MEYER: All right. Thank you, sir. If you’ll sign the podium. Mickey.
COUNCILMEMBER SANDIFER: Maybe. Mr. Neighbor, you talked to some insurance companies and they said that – in order to insure them they would -- that they require fences?
COUNCILMEMBER NEIGHBOR: Yes, I spoke -- American Family’s policy is if you have a pool, you have a fence. And State Farm says they want you to have a fence as well if they know in fact that you have a pool. Some people add pools after they’ve -- and they haven’t seen the house in a number of years, in that case there might not be a fence. But that was the case of both of those people.
COUNCILMEMBER SANDIFER: Okay.
COUNCILMEMBER NEIGHBOR: I would offer, you know, the ultimate thing is it’s a liability issue of the owner. It’s what it boils down to. So again, and Murphy says if it can, it will happen.
COUNCILMEMBER SANDIFER: I agree.
COUNCILMEMBER MEYER: I would say any pool is a liability of the owner regardless of the setup. Eric.
COUNCILMEMBER JENKINS: We listened to Mr. Tubbesing talk about the quality of the covers and the fact that they would withstand a substantial amount of weight and all that kind of stuff, and I’m not disagreeing with that at all, I think they’re great. The problem I’m having is what I’ve stated earlier, is that I’ve got no assurance that the homeowner is even going to close that cover. It would be nice if the last person out of the pool triggered some kind of electrical impulse that shut the pool cover, that’d be pretty failsafe. I think it’d be awfully hard for any child to fall into that pool at that point and drown. The standing water issue that was brought up by the physician, I think that was a significant topic and wanted to be listened to. But other than that but just talking about the integrity of the pool cover itself I think it’ll hold. We’ve got pictures we’ve seen motorcycles on it and everything else. That’s not the issue. Owners mean well and I think they intend to do a good job, but that doesn’t mean they’re going to close that cover when they get out of the pool. So here we’ve got a pool with no fence, little kids right there in the neighborhood and here we’ve got an open pool with nobody observing it and they can just wander right in there. And I find that to be a risk that I’m not willing to take when we’re talking about children’s lives. That’s just taking too much risk. It may be very small, but it can’t get small enough. Zero is the only alternative. I guess you could say it’s not going to be zero anyway, they could climb a fence too. Little kids are going to have a hard time climbing that fence and teenagers will climb anything. Yeah. They can get in. Give me a break. They go out and have a couple of beers with their girlfriends or whatever and decide to go skinny dipping in my pool and I’m asleep, I’m probably not going to know it. I’m not – that’s not quite as fearful of some teenager drowning themselves as a three or four year old or a two year old or a six month old or whatever. And I think that’s where my focus is on those small children, those little toddlers and stuff and I think a six-foot fence would do the job. I do appreciate the comment about, yeah, kids, they’re not -- their brains aren’t completely grown, but they’re amazingly cunning and sly. I remember reading that when I was looking at the officers guide the first time, beware the noncoms because they’re exceedingly cunning and sly. That was the advice to the officers. But these kids can be -- and they’re also faster than greased lightning. Any of us that have had kids can turn around and poof that kid is all the way over there. How’d they do that? I don’t know how they do it. It looks like they can just vaporize and reappear somewhere else sometimes. It’s amazing. But I still feel very, very strongly that we should keep the fence requirement and I’m pretty comfortable with the fact that we should have a six-foot fence as well.
COUNCILMEMBER MEYER: I guess I’m failing -- I see all the points. I’m failing to see the difference in us governing personal responsibility versus somebody closing their pool cover or somebody closing their fence, because it’s just as likely that someone is going to leave a fence open and I don’t think that it’s a fair equation to say, well, we don’t think these pool cover guys are as responsible as someone with a fence. And you know if the fence is open, then you’ve got an open fence and a pool with no cover. It doesn’t make sense to me.
COUNCILMEMBER PFLUMM: Well just to address that comment I mean most of the people have pools have fences with the spring loaded gate. Okay? And they close and they latch automatically. It may not be locked but the lock on a six foot fence is way up here. For a toddler, it’s difficult for him to get it. He may still be able to get it. But the whole thing is probability. If you get your calculator out and you create some probabilities, the probability of having an accident is low, okay? But it happens just like the doctor said with fences, but it’s a higher probability with a, you know, nobody is going -- if they go inside from their pool to eat, they are not going to put the cover on the pool. It just ain’t going to happen. There’s just no way. I mean I know a lot of people with pools and I just know that there’s a lot of people in and out and during the day time if you go inside to eat or something, there’s 50 people there and everybody’s in eating, there’s nobody watching that pool. My son just about drowned when he was two years old, similar deal. Fifty people there. They’re going to do their, you know, everybody’s doing their due diligence, but he falls in the pool. Nobody sees him. Boom, finally they get him out. You know, I’m driving up and the ambulance is at my house. So it’s serious. And so, you know, it’s not our job to make sure that that guy puts his pool cover on, but, you know it’s a good idea to have a six-foot fence. If we don’t do that, we’re probably not doing our -- what we should be doing. So, that’s just my opinion and --
COUNCILMEMBER MEYER: And I understand, and I understand the concerns. I think that we’re thinking about this pool covers as if it’s some tarp that we’re coming in and dragging over. These things ten seconds to push a button and they’re closed. I think it’s a different --
COUNCILMEMBER PFLUMM: The more times you do it the more times you’re going to have a failure. What happens if you have a failure?
COUNCILMEMBER MEYER: Right.
COUNCILMEMBER PFLUMM: The power goes out for a week.
COUNCILMEMBER MEYER: I think there was someone else from the audience who would like to speak. Yeah. Come on up. And if you’ll state your name and address for the record.
MRS. MARTIN: My name is Nancy Martin. I live at (Address Omitted). And as I was listening to this discussion I remembered when my little girl was about three years old, we had a fenced yard, and she kept getting out of the yard. And we had a gate that had a latch on the outside of the gate, a lock. We couldn’t figure out how in the world that child kept escaping. We thought somebody, another child in the neighborhood was letting her out. Well, we finally caught her. She was pulling her tricycle up to the gate and standing on that tricycle and leaning over and getting out of the gate. So, what somebody else said is so true. If you’ve raised little children you have seen other incidents like I’m telling you about. They’re really clever. And I don’t know how in the world she stood on that tricycle without it scooting away and her getting hurt, but she’d been doing this for a long time. And that’s why I certainly feel you need a six-foot fence. That’s much harder for that to happen. I just wanted to share that with you because I think it’s really important.
COUNCILMEMBER MEYER: Sure. Thank you, ma’am, and it looks like you’re signing, so thank you. Was there someone else that wanted to speak? Yeah, come on up. And if you’ll state your name and address for the record. Thank you.
MRS. TUBBESING: Sure. It’s Dawn Tubbesing, (Address Omitted) Shawnee, Kansas. My husband Kevin spoke earlier and anybody who knows Kevin and I at all knows that we’re probably going to see things a little differently most of the time. In this case, I see our new house having beautiful wrought iron black fences and could not wait to see them surrounding everything. Funny enough that is in complete conflict with what I think the Council should be looking at here. I’ve sat in your seats and I’m seeing three things that I find interesting and would love if the Council would consider when they’re looking at a policy Statement, which is what this is about. The first thing I would say is one, the fence is a false sense of security. We just listened to the lady who’s in favor of fences talk about her younger child was able to get in and out of them all the time like a magician, so when they get in and out of that fenced-in pool area like a magician and there’s no cover on it, what sense of security do we have? I know, Mickey, you’re a hundred percent right. Somebody who wasn’t expecting to come across a pool in the middle of a backyard is the most tragic event I can think of, but the reality of it is having the pool covers like they’re talking about in this, would stop that from happening just as much as it would a fence. In fact, somewhat potentially, possibly more because if the requirement is a fence and somebody’s let it deteriorate and its fallen down, or it’s torn apart, is there a possibility that they wander past, they don’t pay attention it, they climb over it thinking they’re going to the next thing and then boom, the pool is still there. So you don’t get a true sense of accomplishment and security by requiring a fence, you get it by being a reasonable, responsible pool owner. And that falls on us regardless of who it is or where it is. The second thing about it is, if you look at B, when you talk about it, look up drownings in a pool. Google it. You’re going to see them come up right away. You’re going to see a two-year-old girl who died in Shawnee County. You’re going to see a child, a four year old that died in Leawood. You’re going to see somebody, an adult man who died in Overland Park. You’re going to see another person who died just outside of Shawnee County. You’re going got see all of those happened in fences, that were either community fenced, that were a community pool that were fenced or a home pool that were fenced. They happen when one, when the mother was in the pool with her kids, wasn’t paying enough attention to the kid at one end and the child drowned. You’re going to see one where a man, an adult man, drowned in a pool while other people were still in the neighborhood in the vicinity. You’re going to see another where a little girl went inside, everybody went inside from her parents’ house where they were hosting a birthday party where a pool had a fence and guess what, they didn’t have an automatic fence that immediately closed and locked into place and that little girl went back outside and drowned in that fence. Guess what wouldn’t have happened? In a pool where you have an automatic cover where you push the button and it closes back in and it requires a lock and a key to get it back open, that little kid could not have went back outside after that birthday party and drowned. It couldn’t have happened. The doctor is right. There are a large number of drownings that happen to children. He’s right, those numbers are huge. What he doesn’t talk about is whether there’s a difference between how many of them happened because of a fence and how many of them happened in a modern new kind of pool cover. Which is kind of my second point is looking at the difference in the pool covers. I googled the first thing that I could see on what is the difference between pool covers versus pool fences. And the first thing that it comes up with is a picture of an above ground pool that has a pool cover on it. And this is actually coming from a company who wants to sell you a pool fence. I’m sorry.
COUNCILMEMBER VAUGHT: Dawn, can you (Inaudible)
MRS. TUBBESING: I don’t know if you can see it that way or not, sorry. What it shows you is that it’s actually the kind of pool cover that you see. That’s the first thing that company who wants to sell you a fence shows you. And then what it says on it is a pool safety cover comes with heavy duty straps, attaching anchor brackets to the deck surface. No it doesn’t. The pool covers they’re talking about in this code come with metal tracks, heavy duty lines and engaged pieces that can’t come off each time. They don’t sink under the same amount weight. They don’t fall apart and you can’t just go and accidently forget to close them. So, I think it’s something it’s something to consider is whether or not you’re talking about the different kinds of pool covers. Because I agree with you, if you’re talking about the kinds of pool cover which is what I imagined happened to this poor girl, which is the regular pool covers that people put on to keep leaves out of their pool, those sink. Those hold water on top of them. Those retain weight. And when you get two inches of water it sinks down and it adds more water to it. That’s where a little kid would walk into six inches of water, have it become eight inches of water and drown.
COUNCILMEMBER MEYER: Mickey.
COUNCILMEMBER SANDIFER: You know, Dawn, I think the world of you.
MRS. TUBBESING: I know, hon.
COUNCILMEMBER SANDIFER: I’m still falling back on the point you said responsible pool owners. We’re dealing anymore with a lot of people that aren’t quite as responsible anymore.
MRS. TUBBESING: Agreed.
COUNCILMEMBER SANDIFER: And they don’t like to have to do a lot of work, and what -- from the history of what I’ve had with this particular incident, the vote that I have to make is if I could make this vote and one child doesn’t drown over my decision I can answer for that, but I wouldn’t feel good about it.
MRS. TUBBESING: Mickey, I’m glad you say that because I’m guessing if that’s how you feel about it, then you will probably agree with me that the right answer is somewhere between where you guys are talking about and what I think should be a slightly stronger statement that should have a slight exception in it. I agree. I think the way you’re going to stop a child from drowning is not going to be guaranteeing a fence because responsible people don’t always close the gate. The way you’re going got stop a child from drowning is not going to be allowing it just too just have a pool cover. I think what you’re going to have to – what I would suggest would be the thing that the Council look at is the alternative to it is has the two pieces to it. And it’s going back a little bit on where it is, that personal responsibility. I remember sitting on the Council with Councilmember Pflumm once, and I remember talking about our skate park. And I find it almost ironic to hear that the reason why Councilmember Pflumm thinks that we should have a pool cover is because one little kid could get hurt, it could be bad, we have to take additional responsibilities, we have to make sure that we cover the kind of insurance that’s necessary for it and we have to make sure that everything that the City can do in order to engage children’s safety is done. But Councilmember Pflumm thought that we shouldn’t have to require in our skate park kids to wear helmets.
COUNCILMEMBER MEYER: Let’s stay focused on the pool cover thing.
MRS. TUBBESING: It is actually, Stephanie. The reason I say that is because if what we’re saying as a Council is that it’s not the personal responsibility of somebody to do a specific action, but now it is, you can’t play both sides of the fence. You have to be about policy, not about feelings on it and that’s what I’m saying. If the answer is you can’t have a pool cover that sinks in, allows water to be retained, then the easy answer to this is simple, you allow the exception to the pool cover, with an automatic pool cover cleaner, which is the stuff you talk about going go across the top that removes the additional excess water, and you allow them if they’re an automatic pool cover that is on some sort of a track. That way you alleviate the bungee cords. That way you alleviate the dipping. That way you alleviate the lesser amount of weight that it can handle. That way you alleviate the potential of not having it in place, and it covers both of them. So my suggestion would be is that you look at the difference in the pool covers.
COUNCILMEMBER PFLUMM: She’s out of time, Ms. Meyer.
COUNCILMEMBER MEYER: Yeah, I think you are.
MRS. TUBBESING: Yeah, I am.
COUNCILMEMBER MEYER: Your five minutes are up. I gave a little more because –
MRS. TUBBESING: And I apologize, but I think it was Mickey, so I’m (inaudible) closing.
COUNCILMEMBER MEYER: Yeah.
COUNCILMEMBER PFLUMM: But I do have to address something.
COUNCILMEMBER MEYER: Yeah. And I agree. Just for one second. Thank you, Ms. Tubbesing. And I just want to remind the Council that we discussed at a previous retreat that we weren’t going to engage speakers in the middle of their testimony. So that’s that. Dan, though she did mention you specifically, so, yes, go ahead.
COUNCILMEMBER PFLUMM: She mentioned me specifically and was one hundred percent incorrect. I was the person that wanted helmets at the skate park and our Fire Department had indicated that they hadn’t had. And the rest of the Council indicated that they did not want. Dan Pflumm was the one that brought that up that wanted helmets, so I just wanted to address that. Thank you.
COUNCILMEMBER MEYER: Fair enough. Jeff.
COUNCILMEMBER VAUGHT: You know, when did IBC -- 2010 is when they came out with covers?
UNKNOWN SPEAKER: 2012, sir.
COUNCILMEMBER VAUGHT: 2012. So, in 2000, just turned 16. I guess my issue would be this, we can look at statistics to say that, well, there’s no statistical evidence that pool covers aren’t safe, but they’ve only been really allowed by IBC for three years. We have, I don’t know, I grew up with a pool and we lived in Colorado, so you know, late 70s, six-foot fence around it, so people have putting pools in their back yards for many, many years and we have you know 50, 60, 70 years of statistics to look at the safety of fencing a pool versus the safety of a pool cover with no fence. So we could sit here and easily say that, well, you know, there’s really no drowning incidents with pool covers, but the reality is, well, no, because there’s not a whole lot of them out there that aren’t in a fenced-in area that have been tested by a multitude of children or high traffic or whatever. I mean I think it’s just a tough one. I personally, I don’t want to be the councilman that says, no, let’s take the fence away and let’s roll the dice. I hate to say it. I love modern technology. I love new advances. I love to see things come along that -- I’m not a big fan of fences. I don’t like wood fences. I don’t like restricting views. You know I love my wrought iron fences because it’s nice to be able to see through it. I don’t like boxed in areas. That’s why a lot of associations don’t even allow wood fences anymore. But I have two small children, too, so I mean I got a couple things to pull from here, I have two small children, I have a friend in my neighborhood whose small child was a flight risk. They had to put locks on the tops of their drops two to three years old. She’d just walk out the front door and just take off and go wander the neighborhood. And I, you know, just a couple of years ago my neighbor who lives just on the other end of the neighborhood, I’m looking out my back window and here comes a – he’s about 2½ years old driving his John Deere green battery-powered truck. Turns off the sidewalk, drives through my back, neighbor’s back yard, my backyard, heading on down across and he’s just out for a drive. And kind of clueless where he’s going and I’m going, okay, you know, could he have driven onto a pool cover? Yeah. Would he have fallen through? No. Would a fence have been better at stopping him? Yeah. I’m going to say it again, I think a six foot is, especially when people are building wood fences, I don’t notice it much, I’m six-foot tall, but if I’m 4½-5-foot tall those 6-foot tall fences become very sight restrictive. If everybody’s bent on six foot, we can do it. I think a five-foot fence is sufficient. The whole idea of a tall fence I think is to deter people from jumping the fence, but teenagers are jumping an eight-foot fence in my neighborhood so they’re going to jump a five foot, six foot. I think five foot gives us the security we need but like I said, I’m not going to lose any sleep over that one, I just think it’s an aesthetics issue more than anything with me. But I just don’t think -- I personally don’t think we have enough years of experience looking at pool covers to say that this is just as safe alternative. I don’t think they’ve been time tested, so they might be the greatest thing. And I think as the years go on we’ll find out with communities that have allowed them, but I think you know if we allow it, I don’t want to be the guy that says, no, let’s do this and next year a kid drowns and I got someone sitting out here looking at me saying why did you allow this? I just, I don’t think we’ve got enough evidence and enough historical data to really to go that direction. So, I support the fences. I’d rather see a five foot. You know, we can pass it through the Committee and everybody can think about that one and deal with it when we come to the Council. But I just, you know, I think we just look at the aesthetics of it.
COUNCILMEMBER PFLUMM: I would like to make a motion now if that’s –
COUNCILMEMBER MEYER: Sure, I just want to make sure. Sir, come on up. If you’ll state your name and address for the record.
MR. WHEELOCK: Sean Wheelock, (Address Omitted) Shawnee. I am a person who has a pool cover, and I will tell you first though, and I’ll preclude this by saying I’m a sworn officer of the state of Kansas. The reason that’s relevant, I’m on the Athletic Commission appointed by Governor Brownback. Our chief mandate is health and safety. My mom is here. We’re natives of Shawnee Kansas. I was raised in Shawnee with a single mom. We didn’t have a lot of money, so when I was in a position to build a pool I wanted to do what was safe. I have two small children, four and ten. When started construction of the pool they were two and eight. I had never heard of a lockdown pool cover, I thought we were going to do a fence. I saw the discrepancy between a four foot and a six-foot fence with zones and with codes. Also as Mr. Tubbesing pointed out correctly, under Zoning, you do not have to have a lock on your fence, you only have to have a latch, so I don’t see safety in that. I chose to do the more expensive thing and what I felt was the safer thing for no other reason than I wanted to keep my children safe. The cost of my pool installation was a little over -- a pool cover instillation, I beg your pardon, was a little over $11,000, much more than any type of fence. I think there’s confusion, with all due respect, and Mrs. Tubbesing pointed this out, what these tarpaulins are, which were probably sold for a couple hundred dollars, is completely polar opposite of what I have which cost a little over $11,000. It’s a lockdown system. It’s a lockdown system, there is a key. It cannot be breached, its safety weighted to over 4,000 pounds, as Mr. Thompson from Codes who I spoke with can testify to. We did the safer thing. We did what we felt was the thing number one for our children. That was our soul priority in putting that. I did my due diligence and I did my research. If can address please also the issue of the standing water. Our lockdown pool cover comes with something and the best analogy I can give you is a Roomba. It lives when the pool cover is locked, it sucks up the water, it moves around. I saw you had a 30-minute exemption. Ours is far less than that. When it rains, obviously water collects, this thing moves around and sucks off the water. There is a hose that’s attached which goes across our yard, sidewalk, and into the drain, so there’s no standing water for long periods of time on that. I understand the concerns of people who are irresponsible and people who don’t close their pool covers. I would also say if people don’t close their fences or if people choose to get a latch fence as allowed by code and don’t have a locking fence. So I understand the confusion, I had incredible confusion on this. But in doing my research and doing my due diligence I came to the safer and the vastly more expensive option because I wanted to protect my children. And I’ll sign in. Thank you.
COUNCILMEMBER MEYER: Thank you. Is there anyone else from the audience who would like to speak on this item? Seeing none, I believe, Dan, you might have a motion?
CITY MANAGER GONZALES: Ms. Meyer, if I could just make a comment too. Realizing any change to the Zoning Code would go to the Planning Commission, that they also would come back to you all with a recommendation and that would also be a public meeting with some public input opportunities, so knowing if you’re going to make a motion that would include the Planning Commission just would provide some other input on that fence height if the Council would want it.
COUNCILMEMBER MEYER: Sure thank you. Dan.
COUNCILMEMBER PFLUMM: I would like to make a recommendation that we move Paul’s Item Number 3 with the six-foot fence forward to the Council with the recommendation for approval.
COUNCILMEMBER SANDIFER: I’ll second it.
COUNCILMEMBER MEYER: All right. I have a motion and a second. All those in favor say aye.
COUNCILMEMBERS PFLUMM, NEIGHBOR, JENKINS, KEMMLING, VAUGHT, SANDIFER, KENIG: Aye.
COUNCILMEMBER MEYER: Opposed nay. I’m a nay. So Stephanie Meyer is the nay. (Motion passes 7-1). The motion passes.
(Shawnee Council Committee Meeting Adjourned at 8:40 p.m.)
I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above-entitled matter.
/das January 12, 2016
Deborah A. Sweeney, Recording Secretary
Stephen Powell, City Clerk