CITY OF SHAWNEE
COUNCIL COMMITTEE MEETING
October 4, 2016
(Shawnee Council Committee Meeting Called to Order at 7:00 p.m.)
|Councilmembers Present ||Staff Present|
|Councilmember Neighbor||City Manager Gonzales|
|Councilmember Jenkins||Deputy City Manager Charlesworth|
|Councilmember Kemmling||Assistant City Manager Sunderman|
|Councilmember Vaught||City Clerk Powell|
|Councilmember Meyer||City Attorney Rainey|
|Councilmember Sandifer||Finance Director Rogers|
|Councilmember Kenig||Development Services Dir. Wesselschmidt|
|IT Director Bunting|
|Councilmembers Absent||Planning Director Chaffee|
|Councilmember Pflumm||Fire Chief Mattox|
|Police Chief Moser|
|Assistant City Attorney Dehon|
|Assistant City Attorney Torline|
|Stormwater Manager Gregory|
A. ROLL CALL
COUNCILMEMBER MEYER: Good evening everyone. 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 Committee members here tonight are Jim Neighbor of Ward I; Eric Jenkins, Ward II; Mike Kemmling, Ward II; Jeff Vaught, Ward III; Mickey Sandifer, Ward IV; and Brandon Kenig of Ward IV. Councilmember Pflumm is absent this evening.
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 these times, please go to the podium. I will ask that you state your name and address for the record, then 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 turn on your microphone when you would like to speak so we can get a clear and accurate record.
1. DISCUSS THE EXCISE TAX ABATEMENT AGREEMENT
COUNCILMEMBER MEYER: There are four items on tonight’s agenda. The first is to Discuss the Excise Tax Abatement Program. On December 22, 2014, the Governing Body passed Ordinance No. 3117, extending the excise tax abatement program until March 20, 2017. Planning Director Chaffee will present an overview of the Excise Tax and discuss options for consideration.
MR. CHAFFEE: Good evening. Paul Chaffee, Planning Director. I’ll give a brief overview of the Excise Tax Program, and then what we’ve done in regards to an abatement of the excise tax over the past four years.
Basically the purpose of the excise tax is to provide a major funding source for major street improvements to offset the cost related to bonding from the General Fund and to provide a means for developers to directly assist in the costs of constructing or improving arterial and major collector streets. And that can be a residential developer or commercial developer. And the whole basis for the excise tax is that as development occurs there are more cars that are on the roads, and in many situations where it’s a newly developed area that we to provide a means to improve those to a higher standard.
Briefly, in August of 1998, the City of Shawnee along with Leawood, Lenexa, Overland Park, Olathe adopted an excise tax. And all of us started at $.13. And as you can see over the years we increased the excise tax several times and now we’re at 21½ cents a square foot. And along the way we made some tweaks to our excise tax ordinance that other cities didn’t necessarily do. We set a cap on a residential lot. So, if it was a three-acre residential lot, they only paid an excise tax as if it were an acre and a half. That basically came to $14,000 which seemed a lot more reasonable than $28,000 for just a single family home.
The other thing we did was we exempted land that’s platted by the city or the county or the school district. It would sort of double-dipping out of public funds in a way.
In 2013, we began the conditional abatements and that was for a two-year period ended March 20 of 2015. And then in December of 14 we extended the conditional abatements until March of 2017.
So, we’re on top of the time that the excise tax abatements are set to expire. We have developers are interested in whether or not the program is going to be extended or not as they make their plans for developing and platting other properties.
We have a series of exemptions I won’t go through all of them. But basically you don’t pay the excise tax on ground that perhaps excise tax has already been paid for because it’s a re-plat of a property. Or if it’s a plat of a property that’s already fully developed, it may have originally been developed as unplatted ground. And then for one reason or another to require easements or right-of-way so grounds get platted, so we don’t collect the excise tax on those basically because the traffic generated is already there.
[Calculation and Collection slide]
The way we calculate it, the calculations based on the gross square footage within the plat, then we take out right-of-way that may be for arterial and major collector streets, and then the payment is made prior to the Mayor signing a final plat.
[Credits from Calculation slide]
For credits we have different means that there will be a credit for a developer. If the property that’s being platted is in a benefit district or we collected money from the Peripheral Street Fund, which was the precursor to the excise tax, or if the developer makes improvements to arterial or major collector streets, the cost of those improvements is deducted back out of the excise tax calculation.
[Conditional Abatement slide]
For the conditional abatement, the developer can request a conditional abatement of the excise tax upon acceptance of the final plat by the Governing Body. And a lot of times what we try and do is the meeting that we would have a final plat where the excise tax applies, we try to have the excise tax abatement agreement later on in the same meeting. Or occasionally if we don’t get the signatures in, it may lag a meeting behind.
The abatement is for the entire amount that would normally be collected. There are some public improvements that are usually associated with plats and those have to be completed by a specific date as well as private improvements regarding building construction that would need to be completed by a specific date. And usually those are two or three years out. We work with a developer to determine how they think it’ll take for a building to get constructed and occupied and the final certificate of occupancy. And then the abatement agreement is filed with the Register of Deeds.
[Excise Tax Collections and Abatement slides]
Briefly, this graph shows excise tax collections since 1999 through 2016. The blue bars are when we collected the excise tax, general dollar amounts. And then the red is the amounts that have been abated over the years. You can see when the recession hit in 2009 through 2012 there weren’t very many new plats that came through the line. And unfortunately some of those subdivisions, although we had preliminary plats on them, they didn’t follow through as quickly as you would have expected. And several of the abatements have been for other phases of those subdivisions that were started that just hadn’t been platted yet.
Between 1999 and 2012, $8.4 million in excise tax was collected. And between 2013 and September of ‘16, about $3 million in excise tax has been conditionally abated.
[Other Considerations slide]
Some other considerations as we consider what we want -- how we want to proceed is the state legislature in 2005 passed K.S.A. 12-194, which prohibited cities from enacting an excise tax on development after January 1, 2006. And those who had an excise tax were able to keep it in effect.
And excise tax that was in effect as of July 1, 2006, can’t be increased without the proposal on a vote for a scheduled election. So, that’s why you haven’t seen any of the cities increase their excise tax over the last ten years.
Our peer cities, all of us are at the 21.5 cent excise tax. Lenexa also collects what they call a traffic impact fee on new development.
And then if the excise tax is abolished, it can’t be reinstated.
So, we have four options that we can take a look at. One is to extend the suspension beyond March 20 of 2017. One would be to extend the suspension and to any tweak or change that we may want to do to that. The third option is just in the suspension as of March 20, 2017, and then start collecting the excise tax again. And then the final one would be to eliminate the excise tax.
And the March 20 of 2017 date is important because the plat has to be recorded at the county prior to that date, so that’s why we’re looking about five months ahead of time to get anybody through who needs to get through the process.
That concludes my presentation.
COUNCILMEMBER MEYER: All right. Thank you, Paul. Is there any discussion from the Council? Jim.
COUNCILMEMBER NEIGHBOR: I have just one question. Do we have a number that would affect the development that we have had has come to Shawnee from the fact that we’ve had this excise tax abatement?
MR. CHAFFEE: What we’ve had excise tax abatement-wise over the years, over the past years, there’s 24 different abatements that we’ve undertaken. Some are small single family developments such as Cherry Park or Clare second plat. Some are a little larger like the Estates of Highland Ridge. Then we have some commercial developments. We have the Federal Rural Co-Op with their new office building that they’re building, Centra, which is building in the parking lot down there at Shawnee Mission Parkway and Nieman Road. Out at Westlink we have the two industrial buildings that have been developed. And then some of the newer ones the public improvements are still underway and those subdivisions will be opening up this spring and so construction will be starting along that line.
COUNCILMEMBER SANDIFER: And we’re having office buildings [inaudible; talking off mic], don’t we?
MR. CHAFFEE: Possibly.
COUNCILMEMBER MEYER: Eric and then Jim.
COUNCILMEMBER JENKINS: Paul, we came up with one of these not long ago. We were discussing it and then I discussed the idea of why are we even doing the excise tax. So, it was clear that we are still requiring though in many cases that the developer contribute substantially toward improving the roads in the vicinity of the development. So, that’s kind of a trade-off with the excise tax. So, the excise tax abatement is not really giving away $3 million, it’s actually -- I don’t know. I’d like to see what the real numbers are kind of about -- how much they contribute in terms of, you know, improving or building roads, you know, adjacent to the subdivisions or to the developed property.
MR. CHAFFEE: Right. Well, the $3 million in excise tax is that we go ahead and run those calculations for the developers. So, there are some subdivisions like Greens of Chapel Creek where they’re doing improvements to Clare Road and they’ve done some improvements to Gleason and 67th Street. Those are already credited back out.
COUNCILMEMBER JENKINS: Out of the $3 million. So, you’ve already credited those out, so.
MR. CHAFFEE: Of the $3 million. So, the $3 million would I guess be the net rather than a gross.
COUNCILMEMBER JENKINS: Okay. So, there’s a net different of $3 million?
MR. CHAFFEE: Right.
COUNCILMEMBER JENKINS: Okay.
MR. CHAFFEE: I think the important thing for us to consider is to always keep in mind is if we eliminate the excise tax, then we don’t have an ability at a future date to go back in and enact an excise tax again.
COUNCILMEMBER JENKINS: Yes. I think that point was stated pretty clear. But what I’m concerned with is that it seems almost now to be a rubberstamp sort of thing. That it’s almost an automatic granting of an abatement of the tax. I think the tax does -- the excise tax does have some very useful purposes. And, in fact, since I raised the issue in the first place there were a couple instances came up where you could see, well, yeah, the excise tax is appropriate to still be in place because -- for these specific types of situations it could be very appropriate. But if we’re just going to rubberstamp all of them and just say, yeah, you’ve got an abatement it does get a little crazy at this point. So, maybe there should be some additional criteria to justify the abatement of the taxes and, you know, more of a, say some sort of a, yeah, criteria list essentially saying, okay, if you meet the following or it’s almost like a variance to a certain extent. You know, you have to come up some reasons why we’re giving this abatement. And I think in a couple cases it was obvious because I think one of them we did was the land was very difficult to develop due to the topography and so on. Okay. I can see why we’re doing it in a case like that. But, you know, have some reasons for doing it other than just the fact that, yeah, we want to encourage development, so you all get tax abatements. I mean, I think that’s probably not the way to go.
COUNCILMEMBER MEYER: Jim.
COUNCILMEMBER NEIGHBOR: Paul, did you have back there in one of your earlier slides a list of the criteria, or did I see that somewhere else?
MR. CHAFFEE: No. The criteria is basically that we calculate it on the square footage. But some of the criteria we have is more the exemptions.
CITY MANAGER GONZALES: [Inaudible; talking off mic] in the agreement.
COUNCILMEMBER NEIGHBOR: Okay. Yeah. I must have seen it.
MR. CHAFFEE: The conditions that we placed on the agreement are that they will do the public improvements that are required. And then also not just do the public improvements, but do them in an expedient manner so you don’t get an excise tax abatement and the not do anything for six years and then come in and do the work. And then also not only public improvements, but some private improvements too, that you have -- if you’re a residential subdivision, you have to build a certain number of homes without that period of time. Or with Federated, obviously they are just one office building, so their excise tax abatement agreement is that they build the 36,000 square foot office building in a two-year period of time. And it also encourages getting these properties back on the tax rolls rather than being on the tax rolls as vacant ground, they’re on the tax rolls as either residential developments or commercial or industrial developments.
COUNCILMEMBER MEYER: I have Jeff and then Mickey, sorry, and then Brandon.
COUNCILMEMBER VAUGHT: I have always supported eliminating the excise tax. It was one of the ideas I brought up years ago and I brought it up when we had a very sluggish economy. And it kind of sets us apart. Just something to keep in mind everybody is when we talk about excise tax, yes, our other Johnson County cities collect one, but our neighbors to the north don’t. And we talk about industrial development, which industrial affects -- excise tax affects industrial development more than anything. You’re dealing with smaller rent numbers. When you start drilling down to that you’re competing for, I mean, an industrial, a 100,000 square foot industrial user, he’ll go from one location to another for $.05 a square foot because at the end of five or ten years that number compounds dramatically. So, we could look at a lot of different things. But the reality is, is that that number on a development becomes a very large number when you start developing very large properties. And it just increases our cost. I’ve never supported an excise tax. And really to me what it is, is we’re taxing someone for the privilege of developing in Shawnee. And the reality is while we have a few projects going on in Shawnee, if we look around to our neighbors we’re getting killed. You’ve got lines of -- you’ve got planning commissions with 15 developments on the agenda and we have a couple. And so when we’re sitting here talking about, well, let’s bring back and excise tax, or maybe we do, I mean, I look to people’s benefit. And when we look at residential even, you look at what happened out there I think on west of Clare I think or someone that split a lot. They had a couple acres. They split and built another house and it saved them $9,000. And so, you know, is it better we collect that $9,000 for them to build another house, or is it better that they build another house and increase our density to help drive our retail and put another house on the tax rolls so that we can start collecting a larger tax base.
Another interesting one as we all know, it’s not private anymore, is Menard’s. So, let’s look at Menard’s on 35, 32-acre site. There’s a lot of vacant ground on K-7, including Lenexa. So, did they choose that site because, well, we can save 300,000 or 350,000 in excise tax here? You know, they’re probably a half a million dollar a year generator between sales and property tax. Do you want to lose them over 300,000 in excise tax?
I’ve always said before I’d rather explore impact fees. If we have development that’s going in where it’s going to be a major impact to traffic, yes, we as a city should not necessarily pick up the tab for traffic issues that a development is going to impose, so then let’s look at impact fees. And that’s when you talk about what you’re saying, Eric, instead of saying let’s selectively apply the excise tax, no, let’s just get rid of the excise tax and selectively apply impact fees on a development that this is going to create some issues, so it’s going to cost you. And then impact fees have been around for a long time. It can impact traffic. It can impact parks. It can impact -- it can have an impact on all kinds of services that we can say that this is going to be an impact to our budget. And until you get rolling or we see a return, I mean, it’s going to be some dollars.
So, you know, the big one everybody needs to consider on this is Westlink. And if, you know, anybody wants to pick up a phone and talk to the developer and the owners of that, he absolutely pulled the trigger on that development because of the abatement of the excise tax. That made all the difference. He could not make the numbers work and compete until we did that. And within a week or two weeks of him -- of us doing that, he called Andrew and said we’re ready to roll, let’s put the numbers together, my proforma works. That’s how tight those industrial numbers are. This works. And a lot of what we’re seeing future development, yes, we have some green fields for retail and for other things and obviously for residential. But when we start looking at that K-7 corridor down where Westlink is and on the other side, Eco-Commerce, you know, if you have an excise tax on that, then that puts that project even further out of reality. It’s going to take everything we have to make that happen.
So, I, you know, said before I support eliminating it completely. I know that a lot of people are nervous about doing that, so I would say, you know, I’d support extending it. But I’d also like to get some information on even what Lenexa is doing on impact fees and see what other cities are doing. Because I would say if we’re going not do this, but a development affects us enough, then I don’t have a problem looking at impact fees.
COUNCILMEMBER SANDIFER: Yeah. I do not want to eliminate it. I would like to extend it possibly. And what I just heard was that we’re using this as a tool. I didn’t know that we were putting conditions like with this insurance company office at Renner. If they don’t build within two years the excise tax goes into effect?
MR. CHAFFEE: Correct. Or they can ask you for an extension.
COUNCILMEMBER SANDIFER: Can we do that with that hotel that’s going up down here?
MR. CHAFFEE: Jay-Shree-Ram. They have an excise tax abatement agreement also, a suspension agreement.
COUNCILMEMBER SANDIFER: They sure have been taking their time there. But if we can use this for some type of a tool as a condition, I mean, if somebody comes in and buys up a piece of property and they want an abatement, they need to build within a certain period of time. So, this is also a tool. So, I think it would work great just to extend it and use it as -- with the conditions like what Paul is using.
COUNCILMEMBER MEYER: Brandon.
COUNCILMEMBER KENIG: Yes. Two questions and a comment. Paul, I think you answered this earlier, but if you could clarify. So, the conditions, the criteria, it sounds like those are relatively consistent, so those don’t -- those are different project to project for the most part? Are those fairly standard?
MR. CHAFFEE: Correct. Those are -- the public improvements are the public improvements that would be required, your stormwater, whatever.
CITY MANAGER GONZALES: And I think they’re very unique to each development --
MR. CHAFFEE: They’re unique to each one.
CITY MANAGER GONZALES: -- depending on what the plan is.
MR. CHAFFEE: Right. Like Federated, it’s one building on one lot, so they’ve basically building everything where more when you get into the residential type of developments we visit with the developer. Obviously we don’t want to put them in a situation. But generally if they can get 20 percent of their lots built and completed in an expedient manner that’s fine. One of them like Cherry Creek, which is just a little three lot in-fill development up on 47th Street, the improvements were there. All they needed to do was get their permits, get the sewers extended and they can build the homes. So, we do look at each one. It’s not just a boilerplate that we make.
COUNCILMEMBER KENIG: So, there is latitude there. I mean, if there is a joint -- I mean, depending on what’s surrounding the area, if there’s going to be something kind of unique to that space you can put within that -- put conditions in place to address that.
MR. CHAFFEE: Correct. And in the excise tax abatement agreements that we provide the Governing Body in the packets, it’s all listed out what the public improvements and private improvements and the timeline is. And we try to cover that in the staff report.
COUNCILMEMBER KENIG: Okay. And the second question I have is are adjoining cities, Lenexa, Overland Park, Leawood, have any of them suspended their excise tax in the past?
MR. CHAFFEE: No. They’re all still collecting it.
COUNCILMEMBER KENIG: Okay. And so that’s actually fairly good. That’s a point of differentiation for us. I know that we’re always trying to be competitive in terms of the incentives and tools that we have in place, so having this tool just kind of adds to our toolkit in terms of trying to entice development within our city. And so I would be a little bit hesitant to eliminate it completely just not knowing, you know, 10-20 years down the road since it’s a permanent change what could happen and if there was something we needed. But I think a suspension for as long as possible makes sense. And it would be probably would be difficult to quantify, and it’s probably all anecdotal, but I would bet that there is a number of businesses who would say that it was probably a number one or a number two factor in terms of their development here in the city. And again, there is many other incentives, many other items that come into play. But it is a tool and I think it could be a very important tool, so I am definitely in favor for extending it.
COUNCILMEMBER MEYER: Jim and then Eric.
COUNCILMEMBER NEIGHBOR: Yeah. In listening here, I remember when we had the discussion, what, four years ago when Jeff originally brought it up we had a lot of discussion. I think that it has served us extremely well and I would support extending it to March 19th of 2018, with a review in October of 2017, much like we’re doing now. See what we’re doing, if, in fact, we do need to tweak it, so it stays a very viable program in our toolkit.
COUNCILMEMBER MEYER: Eric.
COUNCILMEMBER JENKINS: Yes. I was interested in some of the comments made by Councilman Vaught about an impact fee. To me that sounds like a pretty good alternative. You can address each project on a case by case basis and assess impacts as to the community and take actions accordingly. I’m not really all hung up on getting rid of the excise tax necessarily, but I like that concept of perhaps pursuing that, looking at what an impact fee, what we could do with an impact fee. I wouldn’t even mind seeing a compare and contrast kind of side by side on how that would, you know, affect revenues and so on and how that would shake out as we try to make a decision on that because that could be valuable. I do have some reservations on the impact fee from the standpoint that sometimes it -- I wonder if it leaves us open to charges of favoritism. We favor this project. Gave them the goodies and we didn’t give this guy the goodies. And, you know, it just kind of -- that doesn’t look good from that perspective. But since we haven’t examined all these ins and outs yet of other options -- when are we up on this as far as the extension, Carol? When would it need to be done at the latest to extend it?
CITY MANAGER GONZALES: Well, I think what Paul is saying is we really need to decide now so that developments that are coming in would know for this year.
COUNCILMEMBER JENKINS: As of tonight. So, yeah. That would lead me to believe maybe a one-year extension at this point just to keep the options open and the avenues open. But I would like to explore this in the next year before this comes up again on what some of these other options may be and how they may be effective because if you’re just going to continue to suspend it, it gets kind of silly after a while. Why are we doing this, you know? I mean, you either get rid of it or let’s have it, one or the other. But, you know, I think Councilman Vaught had some good ideas there for perhaps looking at case by case review.
COUNCILMEMBER MEYER: Mickey.
COUNCILMEMBER SANDIFER: If we suspend it, Paul can’t use it for a tool like for this piece of property that they just sold that they build within two years or they’re going to have the excise tax on it. Now, that will give them an incentive to make sure that it’s built within the two-year period.
COUNCILMEMBER JENKINS: Actually we have that [inaudible; talking of mic].
COUNCILMEMBER MEYER: Yeah. That’s what we have now.
COUNCILMEMBER VAUGHT: We’re talking about [inaudible; talking off mic]
COUNCILMEMBER SANDIFER: No. I’m saying if you eliminate it.
COUNCILMEMBER VAUGHT: You said suspend it.
COUNCILMEMBER MEYER: Right.
COUNCILMEMBER SANDIFER: I’m sorry. But if you eliminate it, we won’t be able to use it for a tool down the road?
COUNCILMEMBER JENKINS: That’s correct.
COUNCILMEMBER SANDIFER: So, I think it has its benefits by leaving it in the system to let Paul use it as a tool also.
COUNCILMEMBER JENKINS: I mean, there’s conditions on that for approval [inaudible; talking off mic]. It’s not like you don’t have any leverage at all. We do have [inaudible; talking off mic]. And, you know, why they aren’t meeting those deadlines [inaudible; talking off mic].
COUNCILMEMBER SANDIFER: But when it’s getting into their pocket like an excise fee, they will get into it a little bit faster than just letting something else lapse.
COUNCILMEMBER JENKINS: Perhaps.
COUNCILMEMBER SANDIFER: That’s my point.
COUNCILMEMBER MEYER: Brandon.
COUNCILMEMBER KENIG: Yeah. Just a question just to expand upon what Councilmembers Jenkins and Vaught said. I think the idea of an impact fee is interesting because I think it would allow us to still have leverage when it comes to establishing criteria and some of these conditions. So, that was my concern about completely eliminating, you know, the -- when it comes to suspension of the current fee that’s in place. But with the impact fee, would that be assessed, is that assessed differently because I thought, and maybe I’m wrong, but I thought that that could be assessed annually, that that’s not a one-time fee. Is that --
CITY MANAGER GONZALES: I think there are many ways to do it. And I think cities do it all sorts of ways, you know, based on traffic trips, impact to surrounding properties. So, we can do some research and bring something in the spring to talk about it more.
COUNCILMEMBER KENIG: And I guess that points to a limitation too of using the excise tax abatement as a tool for, you know, a conditional tool because that -- there’s a set amount of time. So, you know, if something happens after that time it’s not -- there is no leverage to use. But an impact fee, depending on how that’s assessed, there could be an ongoing, you know, responsibility there instead of criteria especially with large scale projects. But it’s interesting. But it sounds like there’s a number of ways to go about it. But I think that there is probably very specific projects that that could be pretty beneficial for.
COUNCILMEMBER MEYER: Jim.
COUNCILMEMBER NEIGHBOR: Just a rhetorical question. Was the driveway tax in Mission, was that considered an impact fee? And, in fact, didn’t it get turned down or thrown out?
CITY MANAGER GONZALES: I don’t know. Ellis or Melisa might know better. I don’t know if they would really call it an impact fee. It was more of a user fee similar to our stormwater utility fee would be my very off-the-cuff response.
COUNCILMEMBER NEIGHBOR: It was just an academic question.
MR. RAINEY: I would much rather read the case and give it to you, I’m sorry. But my recollection was it was determined to be a user fee that was not rationally connected to the underlying purpose of the fee and that’s why the court did not uphold it. I don’t believe it was an impact fee.
CITY MANAGER GONZALES: It was based on -- the amount was based on trips generated. So, in that regard you could say it was based on the impact of the use, but it also wasn’t based on new development where traditionally I think the impact fee that we are talking about here is more about when a new development comes in, so.
MR. RAINEY: There was no uniform application or something like that. I’d be happy to look at it real quick and get you a copy of it.
COUNCILMEMBER MEYER: Any other discussion from the Council? Mike.
COUNCILMEMBER KEMMLING: Well, it’s not every day, but, Jeff, I agree with what you’re saying over there.
COUNCILMEMBER VAUGHT: [Inaudible; talking off mic]
COUNCILMEMBER KEMMLING: Mark that down. Now, I agree with you. I’d be in favor of getting rid of it altogether. Brandon, you had said it’s a point of differentiation from us and the other Johnson County cities and I agree with that. I think it’s a way to make us seem a little bit more enticing and so we do have that. So, I would be for getting rid of it. If that’s not going to happen, then I would extend the abatement if possible going forward. As far as the impact fee, I hadn’t really thought about it much before tonight. So, I’m not sure a hundred percent where I’d stand on that. But I do like the fact that Shawnee is able to use this abatement of the excise tax.
COUNCILMEMBER MEYER: Okay. Jim.
COUNCILMEMBER NEIGHBOR: With all that having been said --
COUNCILMEMBER MEYER: Hold on. Hold on. Is there anyone from the audience who would like to speak to this item? I know where you’re going. Okay. Seeing none, go ahead, Jim.
COUNCILMEMBER NEIGHBOR: Okay. I would move that we forward this, now how am I going to say it? I would move we forward the extension of the excise tax abatement program until March 19, 2018, with a review no later than October 2017, to include the impact -- that’s not the right. To include the effect of what -- something about impact fees and how it would enter in the conversation going forward so, in fact, we want to change it. That’s not the whole motion by the way.
COUNCILMEMBER MEYER: It is very long.
COUNCILMEMBER NEIGHBOR: So, that if we wanted to change it, we would have things in place in October a year from now that everybody would be up to speed.
COUNCILMEMBER SANDIFER: Second. I’m not going to ask you to repeat it.
COUNCILMEMBER NEIGHBOR: Thank you. I couldn’t do that.
COUNCILMEMBER MEYER: I have a very long motion and a second. All those in favor say aye.
COUNCILMEMBER MEYER: Oppose nay. All right. The motion passes.
[Therefore, the motion was made by Councilmember Neighbor and seconded by Councilmember Sandifer to Extend the Excise Tax Abatement Program to March 19, 2018, with a review no later than October 2017, with a discussion also to include options such as an impact fee. The motion passed 7-0.]
2. DISCUSS REVISIONS TO TRAFFIC REGULATIONS AND THE UNIFORM PUBLIC OFFENSE CODE.
COUNCILMEMBER MEYER: The second item is to Discuss Revisions to Traffic Regulations and the Uniform Public Offense Code. Assistant City Attorney Torline will review proposed updates to the City's traffic regulations and Uniform Public Offense Code.
MS. TORLINE: Thank you. Good evening. My name is Karen Torline. I’ve been here 15 years and I think this is actually my first committee meeting, so always new stuff. I’m sure you’ve read it all and everything I have is really basic. I’m going to go pretty fast. If you want me to interrupt, or stop me, please go right ahead.
Updates to the Uniform Public Offense Codes and Traffic Codes
[SMC 10.04.025 slide]
One of the suggested changes to SMC 10.04.025 just has to do with giving basically on a hit and run, you are required to show proof of insurance if you strike another person or another property. And this allows you to do so on the electronic device. We didn’t have that previously. That’s in our insurance statute ordinance, but not in the duty to provide information.
[SMC 10.04.030 slide]
SMC 10.04.030, on the DUI, we currently have a provision -- the law changed a couple years ago to allow municipal courts to prosecute a third DUI that is a misdemeanor. Some third DUIs are felonies. We kept that on our books, but have decided to remove that and just send those to the county. We were doing those at the county level anyway, so we just wanted to get those off the books.
We have requested the removing of any references to refusing -- any reference that has to do with refusing to submit to a test to determine the presence of drugs or alcohol. The Kansas Supreme Court has ruled that unconstitutional. More on that in a second.
COUNCILMEMBER MEYER: Hey, Karen.
MS. TORLINE: Yes.
COUNCILMEMBER MEYER: I think we have a question.
MS. TORLINE: Yes.
COUNCILMEMBER KEMMLING: Well, you actually just said more on that in a second. That’s where I was going to go.
MS. TORLINE: Okay. So, let me do that and then if you still have the question, let’s circle back to that.
COUNCILMEMBER KEMMLING: Okay.
COUNCILMEMBER MEYER: All right.
MS. TORLINE: I am also requesting repealing the entire section of the crime of refusing to submit to a drug or alcohol test.
So, previously there was a new law in Kansas that said if you are in a DUI investigation and you are given, it’s called the DC-7. It’s an implied consent form. It’s a very long, detailed piece of paper. And if you read everything on that piece of paper, one of the things that piece of paper says is if you refuse to submit to a breath, blood or urine test and this is your second time that you have refused to do so, then you can be charged with the crime, a separate crime of refusing to give blood, breath or urine upon request. The penalties for that are the same as a DUI. So, that crime has been found to be unconstitutional by the Kansas Supreme Court. That was done in April in two different cases that came down by the Kansas Supreme Court in April of 2016. Really interesting. In June of 2016, the U.S. Supreme Court agreed with some of that and disagreed with that. So, the Kansas Supreme Court put a stay on their cases. Thursday, after I had already turned in my materials to repeal the section because it was found to be unconstitutional by the Kansas Supreme Court, Thursday of last week the Kansas Supreme Court has granted the state’s position, the Attorney General, the state’s request to re-hear that and reconsider their ruling. So, it’s really interesting. The issue is up in the air. Even the Kansas Attorney General’s Office cannot tell you what the current law in the state of Kansas is on this issue. So, I had previously said it was ruled unconstitutional, let’s take it off our books. Now, what I’m saying to you is, in the packet that comes to you at the Council meeting, I suggest I leave that in there until the Kansas Supreme Court rules upon that issue. We can either repeal it later. We may have to come back and make changes, or it may stay the same and then we have it on our books. So, it’s fascinating. Any follow-up questions on that, Dr. Kemmling?
COUNCILMEMBER KEMMLING: Just one. So, if this -- the way it is now if nothing changes, or if it’s still a crime, let’s put it that way, if it’s your second refusal to take a Breathalyzer, you can get a DUI and be charged with the crime of refusing in the same incident?
MS. TORLINE: I wouldn’t say the way it is now because the Kansas Supreme Court said that was unconstitutional to do so.
COUNCILMEMBER KEMMLING: The way prior to February 2016?
MS. TORLINE: Yes. Yes. So, you could have two charges, a DUI and a crime that carries the same penalties of refusing to give blood, breath or urine upon request of the officers.
COUNCILMEMBER KEMMLING: All right. Thank you.
MS. TORLINE: Yes. You’re welcome.
[10.04.059 Stop signs and yield signs slide]
Stops signs and yield signs. Some of these traffic issues are things that we have come across, occurring in the field. And then when we read the ordinance we go, it’s not as clear as it could be based upon the situation as you come across it. So, we kind of keep a running tally of those. Roundabouts, for example, we’re having some issues with roundabouts. So, I just thought, you know, if it’s clear people are failing to yield to both lanes, they don’t understand that that other lane, the inside lane might sometimes go straight as well. So, just some basic clarifications. We can’t do a lot of changes within traffic, but we can do some basic changes that I think are simpler revisions to the code that make it more clear. So, that’s just a requirement that we add a fail to yield that is clear to both lanes of travel in the roundabouts.
[SMC 10.04.144 slide]
Lighted lamps, SMC 10.04.144 was not clear that if you have your wipers going, you are also required to have your headlights on. Just the way it’s written is confusing. And I just simplified that as well to make that more clear.
[SMC 10.04.177 slide]
Windshield must be unobstructed. We had a guy actually driving with his hood up. And another situation where you go, okay, well, let’s look at the section that applies. And you read the section that applies and you go it somewhat does apply, but we can make it better and make it more clear. So, we just added some language that would also make it clear that that situation applies. So, that’s where that came from.
COUNCILMEMBER VAUGHT: [Inaudible; talking off mic]
[SMC 10.04.194 slide]
MS. TORLINE: Driving while suspended, it does apply to private streets. And I just added, and it’s our private street section as well. I just added that to the driving while suspended. And then made some changes on this as far as mandatory jail penalties that are currently in there and just kind of expanded some of those references. And then I also removed any reference again to the crime of refusing the breath test because that’s included in the driving while suspended.
COUNCILMEMBER VAUGHT: A question. The language would apply to private streets. Would you explain a little bit what did you do?
MS. TORLINE: In SMC 10.04, is it 144 private streets? I don’t remember the number of that. It’s at the very beginning of 10.04, we list the crimes that apply on private -- not crimes, traffic violations that apply on private streets. Driving while suspended is listed in there. Even it wasn’t, it’s actually -- there’s state law, case law from the Supreme Court that says that driving while suspended also applies, not just private streets, but private property as well. So, I just added that since I was doing a driving while suspended. Just added that language in that section as well to make that clear.
COUNCILMEMBER SANDIFER: So, if you’re on a farm [inaudible; talking off mic] on a suspended [inaudible].
MS. TORLINE: Private property. Yeah. If that’s the definition of private property which I would think, yeah, unless there’s some exemption for farming that I don’t know about.
A few changes to --
[Committee conversation off mic.]
2016 Uniform Public Offense Code
[SMC 9.01.010 slide]
MS. TORLINE: Okay. So, breach of privacy §3.12 has been expanded by state law to include the use of a drone. So, that is in our Shawnee Code. I added that language to be consistent.
Minor in possession. I’m sure you’ve probably heard about this. It is in our Section 5.8. State law has added some exemptions to that that says that if you are requesting -- if you’re a minor and could otherwise be charged with an MIP, if the police came, if you are trying to get medical attention for another minor that needs that, then they have some exemptions for that to try to encourage kids to call if their friends are really intoxicated and really need some medical attention.
Theft is our Section 6.1. State law amended the maximum dollar amount for a misdemeanor theft from $1,000 to $1,500. They added enhancement, same language for a felony and then two prior convictions. Previously the third theft conviction was a felony. They have added the language that the two prior convictions to make this one a third has to be within five years. And the new theft that you commit to be a felony has to be a minimum of $50. There was no minimum previously. So, I’ve just adopted all that same language in our code.
[SMC 9.03.020 slide]
Unlawful Interference. We had a section in our Shawnee Code. There was also another section that was separate in the UPOC and I have just combined them to cover all of those situations into one code. And then I’m going to move to delete that out of the UPOC.
[SMC 9.03.040 slide]
Battery against law enforcement officers. State law added judges, prosecutors, probation staff, etc., but we have people that were not covered under that at the local specific municipality level. For example, contract probation officer. So, I just adopted the same language, but extended it to make sure it’s clear that our local level people are covered as well for battery.
[SMC 9.06.010 slide]
Possession of a controlled substance. State law has taken the maximum penalty, which was an A, which is a maximum jail penalty of 12 months, and has reduced the maximum for marijuana only to be six months instead of 12 months. We really talked about whether or not that’s something we wanted to do, but I don’t really see a downside to doing it and being consistent with state law. We rarely put somebody in jail for more than six months anyway, especially for, you know, a marijuana we don’t -- so at any rate, we are asking to reduce the penalty to be consistent with state law on our marijuana as well.
[SMC 9.12.010 slide]
And window peeping, another one of those instances that came up. And then when you really sit down and read the ordinance, which I don’t think I had ever actually read that ordinance, at least not for years, it was drafted I think it’s in the early 90s and it really wasn’t even a full complete sentence. Again, nothing has changed about it, except we actually hopefully made it simpler and clearer of what the changes are of what window peeping is.
COUNCILMEMBER MEYER: All right. Thank you, Karen. Any questions or discussion from the Council? Okay. Is there anyone in the audience who would like to speak to this item? Okay. Seeing none, staff is recommending that this item be forwarded to the Governing Body for approval. Do I have a motion?
COUNCILMEMBER NEIGHBOR: So moved.
COUNCILMEMBER VAUGHT: Second.
COUNCILMEMBER MEYER: I have a motion and a second. All those in favor say aye.
COUNCILMEMBER MEYER: Opposed nay. The motion passes.
[Therefore, the motion was made by Councilmember Neighbor and seconded by Councilmember Vaught to forward to the Governing Body for approval the Revisions to the Traffic Regulations and the Uniform Public Offense Code. The motion passed 7-0.]
COUNCILMEMBER VAUGHT: Can I just say something right here?
COUNCILMEMBER MEYER: Yes, sir. Go ahead, Jeff.
COUNCILMEMBER VAUGHT: I just had a question about it. You know, we were talking about the roundabouts. Could we look into -- because I run the one out on Johnson Drive all the time and that is confusing for a lot of people on the two lanes. Is there signage where we can say instate of yield, yield to all traffic or yield to both lanes, or is that being done anywhere? Because the problem with, and I’ll just here roundabouts I think they’re great. And when I go to the east coast with my wife they’re all over. But people grew up with them and so it’s going to take generations of the Midwest to really grasp them. But I think understanding that is how do we get people to understand that through education and signage and so --
CITY MANAGER GONZALES: Actually our new Traffic Engineer Kevin Manning has been looking at that roundabout because of some of the issues that Karen alluded to also. So, he’s going to be tweaking some things with some painting, moving some of the paint. And I don’t know if there is additional signage involved, but we should be seeing some changes soon.
COUNCILMEMBER VAUGHT: I think even on the yield signs. If it just said yield to all traffic or yield to both lanes, or yield, because I think you’re right. I’ve been watching a lot people. Because I’ll come around the inside lane a lot of times and people will just yield into that outside lane and you’re trying to kind of slide off to the right and you’re kind of right there and you’re going, really? I mean, so.
MS. TORLINE: And that’s one of the specific things we’ve asked him, that we’ve talked to him about and suggested that exact language on the yield signs, which is why we prompted to also put it in the ordinance. So, I know he’s looking at that, adding that language to the yield that just says both lanes of travel or something. And he’s looking at some other stuff, too. So, we’ve had some issues.
COUNCILMEMBER MEYER: Thank you, Karen.
3. DISCUSS ALCOHOL ORDINANCE AND PROPOSED REVISIONS.
COUNCILMEMBER MEYER: The third item is to Discuss Alcohol Ordinances and Proposed Revisions. City Clerk Powell will present information on the various Alcohol and Liquor licenses issued by the City and discuss proposed revisions.
Alcohol Ordinance Review
CITY CLERK POWELL: Thank you very much. Stephen Powell, City Clerk.
I have a few slides to kind of go over some just general licensing provisions of the various liquor licenses that we issue as well as some proposed updates to the code based on new state laws and things like that.
[General Overview slide]
So, first of all some of the liquor laws can be confusing for not only our business owners, but also for staff in the clerk’s office who have to explain all the provisions. The state issues some, but not all. We issue all. So, in 2015, you may remember we updated all of our liquor laws to consolidate them into one chapter of our code so that it’s easier for people to find the information because before it was kind of spread out over three different chapters. So, some of this will be proposed to be updated.
[Cereal Malt Beverages slide]
So, the first license I’ll talk about is our cereal malt beverage license. Cereal malt beverage by state law is defined as alcohol that’s 3.2 or below. And the state sets the regulations for cereal malt beverages, but they don’t issue any licenses for them. All of that is done through the city. So, we issue the license. We enforce all the rules and regulations for that. Our Police Department performs background checks on all the applicants. Legal and Planning review everything. It all comes to the City Council for approval for both new --
COUNCILMEMBER MEYER: I think we have a question. Sorry.
COUNCILMEMBER JENKINS: Just a clarification on this where the CMB is less than 3.2 alcohol volume. So, I would say that if you’re drinking that seven or whatever you’re drinking hard liquor? Is that what it’s telling us because that’s a cereal beverage? I mean --
CITY CLERK POWELL: Yeah. If it’s above 3.2 percent it would be considered liquor under the state statute?
COUNCILMEMBER JENKINS: So, pretty much they sell over at Johnny’s is liquor instead of beer, huh? Okay.
[Councilmembers talking off mic]
CITY CLERK POWELL: So, the City Council, you all approve new and renewal licenses. And there’s two types, the on-premises and the off-premises. So, that would be on-premises obviously a restaurant, off-premises would be a convenience store or a grocery store.
[Liquor Store slide]
Next, we have liquor stores and liquor sales. Liquor stores sell liquor which is obviously above 3.2 percent. The state sets all the regulations. They issue a state license. They also actively enforce it through the Alcohol and Beverage Control Division of the Department of Revenue. We also issue a city license for those. Those are approved by the City Clerk. They’re a two-year license, whereas the CMB is a one-year license. And it’s for off-premises consumption, only unless they’re doing a tasting and the state kind of regulates all of that. An example in Shawnee would be Diamond Liquors, Merigold, just we have quite a few liquor stores in the city. In order to get their city license they have to present a valid state license first.
[Private Club slide]
Private clubs. We have a couple of private clubs in the city. They’re similar to a liquor store where as the state sets the regulations. They also issue a state license and then we issue our city license. They are also two-year licenses. And private clubs are a little bit unique as opposed to a drinking establishment, which we’ll talk about next, in that, they’re not open to the general public. You have to have membership to enter a private club. There’s two types, an A and a B. So, an A is a non-profit fraternal, veteran organization. That would be like our American Legion. And then a Class B is a for-profit or corporate. And the only one in Shawnee that we have is the Ribbon Room for Class B.
[Drinking Establishment slide]
So, a drinking establishment. A lot of this is going to be the same. The state regulates it, issues the state license. They get a city license as well. It’s a two-year license. The drinking establishments are open to the general public. They can serve liquor that’s over 3.2 percent. But they can also serve CMB, cereal malt beverage as long as they also get a cereal malt beverage license. And we have a couple of drinking establishments that have done that. Examples of a drinking establishment would be like Chili’s and Applebee’s and Barley’s.
We also have a couple of caters in the city. And these are not folks who cater food, they are folks who cater alcohol, or liquor I should say. Again, the state sets up all the regulations, enforces it. They have to get a state license and then they get a city license as well. It allows a caterer who has a caterer’s license to go onto an unlicensed premises and sell/serve alcohol or liquor. So, that would be an event space or maybe a conference. If you’ve gone to a conference and gone to the open bar, that most likely a caterer that is selling and serving that alcohol. So, the Hereford House has a caterer’s license.
[Farm Wineries/Outlets slide]
Next, we have farm wineries and outlets. Again, the state sets all the regulations for these. They also have to get a city license. These are open to the general public. They can sell unopened original containers for off-premises consumption, but they can also have a tasting room, a tasting area, but that has to be separate from the sales area. And that’s all part of the state law. We don’t have any here in Shawnee yet. And I say yet because I think there is -- has been talk about one coming into town for quite a while. So, hopefully soon we’ll have a farm winery.
We also have a -- the farm winery can also sell at a farmers’ market. And right now we don’t have any doing that. But essentially the state issues a farm winery farmers’ market permit, and then they also have to get a permit from the clerk’s office to do that as well. And they can only sell at an approved farmers’ market. It has to be in an unopened original container. You can’t consume on the premises. And they have a little bit more stringent requirements for the folks who actually work the farmers’ market. So, you have to be a family member or an employee who is 21 years of age or older. And we don’t have any yet.
[Temporary Permits slide]
We also have various temporary permits. Again, most of these are all set by the state. So, these would be more for like one day or very short-term events where someone wants to sell alcohol just for one or two days at an event. And all of these are issued by the Clerk’s office or the City Manager’s office.
The last one, extension of premises. The state does all of that on their own, but they do have to get authorization from the City Clerk to extend that premises, but the state actually regulates all of that.
[Consumption on Public Property slide]
We also have a provision in our code about consumption on public property. And it’s generally prohibited. There are a few exceptions to that rule. Anything that -- any public property the Governing Body can approve that. We’ve done two recently for folks who wanted to have alcohol out at Erfurt Park. Also at the Johnson County Parks and Rec facilities where the Board of County Commissioners has passed a resolution authorizing alcohol to be sold on that premises. We also have city-sponsored events, the Civic Centre, Town Hall. And then we’re proposing to add the Erfurt Park pavilion as an exception so that if someone else wants to come in and do, you know, a fundraiser or have alcohol, they would still have to get a permit from the city, but it wouldn’t require the Governing Body to approve it. And most people like that really big pavilion out there to facilitate. And it’s really the only other facility that we have that would be amenable to having an event like that.
All of our licenses cost money. Most of them are $500 for two years. And for our CMB licenses, although the state doesn’t really do anything with it, we do have to collect a $25 state fee and then remit that to the state every month.
There are penalty and enforcement provisions. So, we’re proposing a couple of tweaks to this just to make it consistent with some of the Uniform Public Offense Code provisions that Karen went over. For instance, serving to minors. We want those to be the same in both places. So, we’re going to have our alcohol code just reference the UPOC. But again, the City can enforce all the provisions in our code. The state can also enforce many of those through the Alcohol and Beverage Control. The Governing Body could suspend or revoke a CMB license because you all approve those. But the state would revoke a liquor license or a private club or a drinking establishment, things like that. And if you are found guilty of a violation of that state drinking control act, then you would be ineligible to have those other permits. So, that’s kind of why we don’t have a revocation process for those.
[Zoning/Distance Requirements slide]
There are also various zoning and distance requirements for some of those liquor licenses. Everything has to comply with our current zoning regulations. But cereal malt beverage, liquor stores and farm wineries have some additional distance requirements from churches or schools, and I’ve listed those there.
[Blue chart slide]
And then we put together this table because there’s a lot of just other components to our liquor laws that are just kind of all over the board. And we thought rather than doing one slide, we would just show them all up here. But it has to do with controlled activity, when you can sell, when you have to close, how old employees have to be, things like that.
COUNCILMEMBER MEYER: Jeff.
COUNCILMEMBER VAUGHT: This reminded me of something. So, I recently had a conversation, and I don’t know if the rest of Council is interested in talking about this. So, we close our bars, drinking establishments at 1:30 a.m., right? So, last call is what, one? We have the last call requirement. Do they have to be closed and clear at 1:30?
CITY CLERK POWELL: Yeah.
COUNCILMEMBER VAUGHT: So, they’re doing last call at one. And I know Merriam is two, I believe. And there’s other cities that are two. And it doesn’t make sense for us to be 1:30 because what happens in our bars, and I didn’t realize this. He talked to Jenny up at Jake’s. So, we call last call at 1:00 and everybody goes, let’s go to Merriam. So, the bar clears out at one o’clock. They’ve been drinking all night and they take off across Shawnee. And so then they go to Merriam and they drink more because they get an extra half hour and then, of course, they drive back home through -- that’s crazy. If our surrounding neighbors are two o’clock, then let’s just be two o’clock so we don’t have one o’clock flight. Everybody is out of here and then driving -- go down pound down as many as you can and then having them drive back through the city. It’s like wouldn’t we rather just have them sit there? Their revenue loss, and we make money off that. And she kind of estimated revenue loss off that. And, you know, for a big bar it can be sizeable. When you’ve got -- when you have a lot of people bolt out at one, in that extra half hour, you know, some of them might, yeah, obviously you’re going to stop and go home, but there’s a certain amount that, you know, they’re going to bolt to the neighboring city and do we want to do that? I mean, I don’t know. I mean it just doesn’t -- if we’re going to compete in that realm and be kind of that city of, you know, competing with everybody else around us, I would think that we don’t want to push everybody out at one and send them down the street to the next city.
CITY CLERK POWELL: Yeah.
COUNCILMEMBER VAUGHT: I don’t know if somebody maybe wants to talk about it now.
CITY CLERK POWELL: And I believe it’s 1:30 because back in the day the voters voted for that, for those times. I’m not sure if they could be changed.
COUNCILMEMBER VAUGHT: When you say back in the day, like what, 20 years ago?
CITY CLERK POWELL: It’s been a while ago. Do you remember when that --
[Inaudible; talking over one another]
COUNCILMEMBER VAUGHT: All right. I think we have to look at the time. It would be interesting.
CITY CLERK POWELL: We can look into that and bring it back if it goes onto Council for you.
COUNCILMEMBER JENKINS: Yeah. That would make it consistent with the time of the caterers have, they have till two a.m.
COUNCILMEMBER MEYER: Sure.
COUNCILMEMBER KENIG: And I would just echo what Jeff said. I think that probably many people leave even before last call because a lot of, I mean, especially that goes out with groups pretty heavily on the weekends, they know when bars close in different cities. And so they’re going to get out even earlier. That’s more revenue loss for the bars in our city. And it’s not exactly hard to get to another bar because we live in a very dense area of 22 municipalities, and so you just hop on over. Sometimes you don’t even have to go less than a mile to be in another bar. So, something to consider.
COUNCILMEMBER MEYER: Jim.
COUNCILMEMBER NEIGHBOR: I would just ask rhetorically for Chief Moser. Is this a problem as far as enforcement? I mean, I agree with it in principal. I’m just curious from your standpoint what you see?
POLICE CHIEF MOSER: Yeah. It’s going to -- interesting thought. It’s just going to push the end of night activity we have at bars a half hour later I think, probably. So, it would take some research to see, you know, about DUIs or anything if that’s true alluding to people driving back to Shawnee after going to Merriam and drinking some more and come back through. It would take research to see if that’s going on. I don’t know -- have any opinion on that. But we have an end of the evening bar ending crowd that activity picks up a little bit. And so it would just push it back a half hour later is all I can see.
COUNCILMEMBER NEIGHBOR: Thank you.
COUNCILMEMBER MEYER: Mike.
COUNCILMEMBER KEMMLING: It must be a good day, Jeff, because I’m agreeing with you again.
COUNCILMEMBER MEYER: Oh, my goodness. Did you guys come from the bar?
COUNCILMEMBER KEMMLING: Exactly.
[Inaudible; talking over one another]
COUNCILMEMBER KEMMLING: But we were talking about competitiveness earlier on the abatement and I agree here as well. Thirty minutes, why not be competitive with the other areas so that we can continue to recapture some of that sales tax. The money is going to be somewhere, might as well be here.
CITY CLERK POWELL: Sure.
COUNCILMEMBER KEMMLING: Are you done because I have a question on something else? Are you still going?
CITY CLERK POWELL: I just have a couple, but.
COUNCILMEMBER KEMMLING: It was going to be on powdered alcohol. Were you going to hit that?
CITY CLERK POWELL: I was going to say that it’s illegal and that was it.
COUNCILMEMBER MEYER: That was easy.
COUNCILMEMBER KEMMLING: So, I hadn’t heard of it before I read our packet here. Is it illegal in the state?
CITY CLERK POWELL: Yes.
COUNCILMEMBER KEMMLING: Okay. So, we’re just being in compliance?
CITY CLERK POWELL: Yes.
[Licenses in Shawnee slide]
This chart shows the number of licenses for the various types of businesses that we currently have in the city.
[Proposed Revisions - SMC slides]
And then some of the proposed revisions that we’re offering up would be to clarify some of our definitions. The state added a couple and we just tweaked a couple. We updated residency requirements for an LLC that is wanting to become a CMB, or get a CMB license so that it mirrors state law. We’re also, as Dr. Kemmling alluded to, mirroring state law as it relates to powdered alcohol.
COUNCILMEMBER JENKINS: I just had another question, just to clarification.
COUNCILMEMBER MEYER: Eric.
COUNCILMEMBER JENKINS: Steve, just another point of clarification now. Some establishments that only have a CMB license, they’re going to close down at midnight. So, I guess we’re going to have the flight to the other bar where they can drink some stronger stuff until two as we go there. Am I categorizing that correctly?
CITY CLERK POWELL: Some of that is prescribed by state law. So, when we come back to the Council we’ll show you kind of what that state law exactly says on the hours and then what could be changed. Because I think there probably is some areas to make those hours a little more consistent.
COUNCILMEMBER JENKINS: I guess where I was really going to is that if they have both licenses, which they have, then they can -- can they continue to sell CMB until the closing time, or do they have to switch over? No, you can’t have another Bud Light, you’re going to have to drink a Dunkel’s or something now because you’re after midnight. I’m just trying to clear that up.
CITY CLERK POWELL: I believe they would have to stop selling, or do you think they could keep selling until --
MS. TORLINE: I think they can keep selling as long as they have that dual --
COUNCILMEMBER JENKINS: As long as they’re a multi-purpose one.
CITY CLERK POWELL: Because I know the Drinking Establishment Act specifically says that a drinking establishment can sell CMB with a CMB license.
COUNCILMEMBER JENKINS: I mean that makes sense. I was just trying to be sure of that, just trying to see if that was correct.
CITY CLERK POWELL: We’ll double-check that and get you an answer just to be clear.
We’re also clarifying that the farmers market, a farm winery, if we ever got one, could sell at is the Shawnee Farmers’ Market because the state amended the law to make it a little more vague than what it was before. So, we want to be clear that it is the Shawnee Farmers’ Market and not, you know, the fruit stand, you know, down the road.
And then we talked about including Erfurt Park Pavilion as one of the exceptions to having alcohol on public property. And then we talked about changing the violations for serving to minors to mirror or reference the Uniform Public Offense Code.
[Proposed Revisions PS-56 slide]
And then also, sort of not related to alcohol, but all of our alcohol fees are in PS-56, which is our City Licensing Fee Schedule. And we need to add the food truck license fee in there. So, that would just be one little amendment to add the $100 fee for the food truck license.
And that is all I have prepared.
COUNCILMEMBER MEYER: Thank you, Stephen. Mike.
COUNCILMEMBER KEMMLING: Sorry. One more technicality here. On the hard cider, why is there a limitation to the level of carbonation?
CITY CLERK POWELL: You want to take that one?
MS. TORLINE: We have no idea. I’m going to guess that some farm wineries started making hard cider and so they’re looking to regulate it. But I don’t know anything into the scientific reasons behind how they’re categorizing and that it’s categorized as a wine. I’m going to assume that there is -- the process in making it may be similar to a wine. Obviously maybe that’s what wineries are doing, but we don’t have one.
Also I just want to say with the farmers’ market permit, it’s important to have because a farm winery outside of Shawnee can come and ask for a farmers’ market permit, so we want to have that in place, even though we don’t have a farm winery here in Shawnee.
COUNCILMEMBER KEMMLING: Good point. So, a follow-up then on that. It says hard cider is less than 8.5 percent. If it’s a higher concentration is it called wine, or do we have an idea on that? No.
CITY CLERK POWELL: I mean, the law says if it’s above 3.2 percent it’s liquor.
MS. TORLINE: Right. I mean --
CITY CLERK POWELL: So, I think it’s unclear. I mean it’s inherently confusing. When we say -- when we have someone who comes in and says I want to serve beer at my restaurant, we always ask are you serving 3.2 beer, or do you want to serve anything above. And they go, well, why, what’s the difference. So, I mean, the law, if you read the handbook, it is a little unclear just because they call it something different than what we would call it just as hard cider or wine or beer. So, we try to clarify some of that in our code.
COUNCILMEMBER KEMMLING: So, if you would possibly, I would like to see some of the comparisons to us and the surrounding cities. Like I didn’t know about the 2:00 versus the 1:30 thing. So, if it’s possible when this goes to Committee, or to the Council meeting, if you could provide just some of those comparisons I’d be curious how our fees compare to fees around us.
CITY CLERK POWELL: Oh, fees.
COUNCILMEMBER KEMMLING: Not just fees for the establishment, but things like hours. Like I said, I wouldn’t have thought about something like that.
CITY CLERK POWELL: Sure.
COUNCILMEMBER KEMMLING: So, if there’s other ways just to see how we stack up, it’d be interested in that as well.
COUNCILMEMBER MEYER: Jeff.
COUNCILMEMBER VAUGHT: Hopefully the state gets on the program. With farm wineries and microbreweries and it’s going to be such a change in the environment in the years to come. It’s going to be constantly evolving. But let me add something. So, I have a tenant now as we know that does the art parties. And I’m trying to figure, and so I guess that’s more state regulated. I mean, what’s our -- I’m trying to kind of go through all these trying to figure out what one of these would even affect her. But, you know, there’s a lot of places in other, and I don’t know if they happen in other communities here, possibly in the metro. But I know in other parts of the country where there’s facilities exactly like hers where you can go in and the owner provides wine for the participants. You pay a fee and you get to learn art, you know, how to paint something or a craft and you sit there and drink wine. She’s not able to serve it apparently. And I believe it was -- I’m assuming that’s state law then because you can’t give away alcohol even -- that’s why we don’t have free drinks anymore, buy one get one because of the whole happy hour rule. So, I mean, is that -- but I always assumed if you paid a fee and then the wine was included in that, then you’re not necessarily giving the wine away, it’s part of the program. But what does that fall under? How does that, I mean, she’s under the assumption that she actually can’t do it. And I’m thinking, well, there’s got to be a way to -- I don’t know.
CITY CLERK POWELL: Yeah. Well, without having more details about what the other -- the business you’re comparing that one to, they could have a temporary alcohol permit, which the state and the city both issue those. They have to get their state permit first and then they get their city permit. And it would allow that business to sell alcohol or liquor for -- like an event.
COUNCILMEMBER VAUGHT: But you’d have to do one for each event.
CITY CLERK POWELL: You do.
COUNCILMEMBER VAUGHT: I mean, every time she would do one, you know, five nights a week you’re not going to go buy one for --
[Inaudible; talking off mic]
COUNCILMEMBER VAUGHT: I just mentioned on our side of it and then you obviously know the state laws pretty well, and it would take me forever to figure that out. So, I mean, this is a growing business. And she’s doing a lot of business and there’s a lot of these people wanting to pop up. And it’s a great concept just to, you know, I mean, I’ve had some ideas on how to go around the issue where you could have wine tastings where you bring in a rep and they’re doing a wine tasting at your event. But that gets very convoluted. And it would just make sense if she could go -- because all you really serve is wine. Or maybe if the husband is coming with her, you can sit and drink beer and wine, but regardless, just being able to serve. I mean, nobody is sitting around doing shots. It’s just a very casual basically wine event. But I don’t know, it’s trying to figure out how to do it.
COUNCILMEMBER MEYER: I think the state legislature actually might have addressed this last year and clarified it because there was a place down in Wichita [inaudible]. So, I think it might be settled. But I don’t know how it came out.
CITY CLERK POWELL: We’ll get you some more -- we’ll definitely get you some more info on it.
COUNCILMEMBER VAUGHT: [Inaudible; talking off mic.]
COUNCILMEMBER MEYER: Okay. Any other discussion from the Council? Okay. Is there anyone from the audience who would like to speak to this item? Seeing none. Thank you, Stephen.
Staff is recommending this item be forwarded to the Governing Body for approval. Do I have a motion?
COUNCILMEMBER VAUGHT: So moved.
COUNCILMEMBER NEIGHBOR: Second.
COUNCILMEMBER MEYER: I have a motion and a second. All those in favor say aye.
COUNCILMEMBER MEYER: Opposed nay. Motion passes.
[Therefore, the motion was made by Councilmember Vaught and seconded by Councilmember Neighbor to forward to the Governing Body for approval of Alcohol Ordinances and Proposed Revisions. The motion passed 7-0.]
4. DISCUSS THE STORMWATER MANAGEMENT PROGRAM IMPLEMENTATION PLAN.
COUNCILMEMBER MEYER: The final item is to Discuss the Stormwater Management Program Implementation Plan. On July 25, 2016, the Council voted to increase the annual Stormwater fee. Public Works Director Whitacre will review the proposed implementation plan for 2017, which has been updated to reflect the additional revenue.
MR. WHITACRE: Good evening. Doug Whitacre, Public Works Director. Tonight I wanted to take you through, with the additional revenue that you approved in July, we want to kind of show you how we would like to put those additional funds to be utilized in the Stormwater Program going forward. And so I’ll just kind of go through some background information and then look at that review and then show you the implementation plan that we’re planning.
Stormwater Management Program Implementation Plan
Just real quick. Back in March, we kind of presented to you the present and future challenges that we face with the Stormwater Program and provided you with three alternatives if you remember on how we could attract the problems here with those situations.
We gave some additional information in May of this year and then in July, you voted to double the fee from $36 to $72 per ERU on an annual basis.
[Program Review slide]
The funding approved provided a portion of the identified need for the alternative three that we presented to you. And so with that we took -- we compared the approved funding that is set for 2017 to Alternative 3 and had to, you know, it needed to identify the highest priorities of work that we need to try to accomplish the Stormwater Program.
And the three areas that we looked at and prioritized was one, reduce the backlog of CSRs that we’re facing. And currently, just so that you understand where we’re at, we have 59 CSR work orders that we’re working on that are in backlog. And those are actual items that we’ve issued a work order to the service center to go out and complete those items or repairs that need to be done. In addition, we have right now approximately 77 service requests. That those are the initial request that comes in. We have to go out and research it, see what the need is, what’s the repair that’s needed and review and analyze. And then in many cases those would turn into work orders of work that needed to be completed. Not all of them will, but many of them will.
The second area obviously is we needed to -- we feel is a high priority obviously is to address the pipe replacement and repairs. And that’s based on the information we provided of the four-rated pipes out there where we know we’ve got close to ten percent of our CMP pipe is rated 4, which with 100 miles that’s close to ten miles of pipe that we know right now that we need to replace, or do major repairs on.
And then the third area for the program would be to increase our video inspections so that we get that completed in a more timely manner to give us more information on where our stormwater system stands at this point.
[Backlog of CSR’s slide]
So, in looking at each one of these, we look at the backlog of CSRs. And as we evaluated the service portion of the organization for Public Works, we identified two positions that would help increase the work output within there to handle those backlog of CSR’s and also improve the level of service out there to our citizens. And the first area would be in the area of the actual maintenance crews. Currently we have three crews that do nothing but stormwater work. We have two four-man crews and one three-man crew. And what we’re looking at is, is to add an additional maintenance worker where we would turn that three-man crew into a four-man crew. And from the standpoint there is just to the four-person or four-man crew is more efficient from the standpoint of operations because if you take, and let me back up. On a crew, when I say a crew there’s a working supervisor. So, we have a supervisor with each crew, but it is a working supervisor. It’s not a case that they just stand out there and tell them what to do. They actually are working --
COUNCILMEMBER VAUGHT: Not a union supervisor.
MR. WHITACRE: That’s right. They’re actually out there working with it. And so from an operational standpoint having four in a crew gives you an operator, a truck driver and then actually two people that actually can work down in the hole or wherever you’re working because primarily the stormwater you’re in the ground all the time. So, from that standpoint that’s where we felt we needed that additional person on that three-man crew to just help with the efficiency and get work done quicker.
The second area that we’ve identified is I worked with the crews and sat down and went through the analysis of where -- how we’re doing work today, is adding a -- I’ve got a management, but more of a management, project management position that actually manages those stormwater crews. And that would be through the scheduling of work, the property owner communication because in many cases we’re working on private property and an easement, material ordering. And then which would also allow the crew supervisor to actually stay with his crew. Right now our crew supervisors are actually having to come back as they get -- they’ll get the crew started. They have to come back and start doing the communication, etc. to try to get to the next work order and what all they need to do. This person would actually have the expertise to be able to management that project from a project management standpoint. A better term is their head is above the trees. They can kind of see what’s out there and be able to coordinate the work and actually pull some jobs in together where the crew supervisor is more just invested right in the actual project he’s working on at that time.
Also this person or this position would provide field technical expertise. When you’re dealing with these stormwater issues out there in the field, as we all know when you do any kind of rework or remodeling or whatever, when you start uncovering things you find things that you’re not -- you weren’t expecting. And somebody has to make a decision basically to make sure, number one is is that, you know, water flows downhill. And so you want to make sure that what you do is correct. And so this person would have the technical expertise or this position to be able to make those decisions quickly so that those crews can keep working rather than having to pull off. Because right now what’s happening is they’re calling back into Stormwater Administration back here at City Hall. They may be tied up in another project, then they got to go out. This would keep them working and try to keep things moving forward.
Another is we get CSRs. And every time it rains we get more CSR call-ins. A lot of times somebody needs to go review them, as I said, to understand what’s going on at the situation and, you know, is it a failure or what’s the issue. And this individual would -- could actually go out, help assist with looking at those. And if it’s something minor, can make -- work it into the schedule land get things taken care of I think in a more prudent way rather than we just add it to the list like we have so much in the past.
And then also the last item I have there was to collaborate, basically work with the Stormwater and Administration back here to make sure that we’re all working together since we’ve got small projects and large projects.
The one additional item that happened is is that the senior engineering tech that is back here that has been trying to do all of this work, it would free him up to where he could just deal with the major pipe repairs that’s going on because we’re doing video analysis, prioritizing of what major pipes do we need to go out, and then the contacts and construction from that standpoint. So, that’s the part from this backlog of CSRs.
[Pipe Repair and Replacement slide]
The next would be in the pipe repair and replacement, which is obviously the big one. What we’re looking at here is we would increase, we would be able to with these additional funds, increase what is really the capital line there, pipe replacement. We’ve been doing $600,000-$700,000 a year. For ‘17, we could increase it to a little over $1.1 million with a goal to try to set aside in an emergency fund for emergency repairs because we know we’re going to have them of a million dollars. And the reason we’ve kind of set it as a million dollars is we’ve already addressed three in 2016 that’s cost $1.5 million. So, those are just, you know, there that we’ve looked at. The only caveat that I want to bring out tonight is our goal, as I worked with Finance, was to try to set up a million dollars. We’ve already identified that at Johnson Drive and Mund there’s nine pipes that could fail. Some of them are already starting to, and that’s a cost of about $790,000 for that project. So, working that in with all of the other pipe repairs that we have needed for mill and overlay projects and also larger projects that we would bid out that are in private easement, or in public easements on private property, we will be bringing that final plans in the next -- for bid purposes, we’ll be able to identify. But I’m guessing somewhere that maybe we’ll end up having to do about 500 in reserve to put aside this year and get the rest of it in ‘18, just because we’ve already identified this large project that we know we need to take care of.
Going forward that would, you know, once we get our reserves set up, and again, the reserve is an emergency reserve just so that we can handle and don’t have to go look for funds elsewhere, would be to increase the replacement budget. We’d be able to then move up to about $2 million a year that we’d be able to put into pipe replacements. This also assumes that the $8 million debt-funded project that was included in the debt service fund forecast will happen, which included five major projects and about over a little around 5,000 feet of the 4-rated pipe that needed to be replaced.
We are also looking at once that project was completed, which is out in the 2019-2020 realm, is that we might then be able to drop our reserve from a million down to $500,000. But because we would feel like we were starting to get a little bit ahead of all these emergency repairs that we’ve been facing.
[Johnson Drive and Mund Pipe Repair slide]
This just looks at -- this is that Johnson Drive and Mund. You can see the red line. There’s nine pipes. Crosses Johnson Drive twice out there. And if you look in the two pictures there in the left-hand corner you can see that there is not a whole lot of pipe left in the bottom. And usually what happens is those pipes will fail and squeeze together. That’s what happened on Quivira. That’s what started to happen there just a little bit east of this at Lakecrest and Johnson Drive. And so it’s just -- we know we need to address it. And without -- we don’t want to lose the road because obviously if we lose the road, then we’ll be facing a lot more than the $789,000.
[Video Inspection and Analysis slide]
The last area is the video inspection and analysis was a priority for us. And that basically is to do more inspections. And the goal is to complete all of the remaining pipes would be video inspected within seven years. And that’s a reasonable goal from just the amount of -- you’ve got to video it. You’ve got to analyze it and then try to prioritize it. And we’ve got about 25 percent completed in the scale that we had or the schedule that we had would probably be another 15 years. We’re saying let’s cut that in half and get that information because obviously it’ll help us better prioritize projects and also would identify the problem areas much more quickly than if we just let it keep prolonging.
[Stormwater Implementation Plan slide]
And then this is just -- we kind of did a -- from a financial aspect for you just the current program and the proposed Alternative 3. That portion of the chart you had seen before when we did our alternatives to you back in March. We added the 2017 there on the right, approve budget. And just to show that where we’re, you know, and the general maintenance has gone up some to cover the two positions. But then the next line there is video inspection. You can see that we’ve greatly increased that money, the dollars and the video inspection portion. Obviously we’ve got the repair of the pipe. We’ve got the million dollars there and then the million dollars that we’re setting in the emergency fund reserve to add up. So, that basically is the -- basically the plan to show how this is how we want to use the dollars going forward. We’re trying to put as much of everything obviously in the pipe and get it replaced out there and address the CSRs. And so we’re asking for your approval to move on with the implementation plan.
COUNCILMEMBER MEYER: Thank you, Doug. Was there any discussion from the Council? I agree. Is there anyone from the audience who would like to speak to this item? Okay. Seeing none, staff is recommending this item be forwarded to the Governing Body for approval. Do I have a motion?
COUNCILMEMBER VAUGHT: Move for approval.
COUNCILMEMBER SANDIFER: Second.
COUNCILMEMBER MEYER: I have a motion and a second. All those in favor say aye.
COUNCILMEMBER MEYER: Opposed nay. The motion passes.
[Therefore, the motion was made by Councilmember Vaught and seconded by Councilmember Sandifer to forward to the Governing Body for approval the Stormwater Implementation Plan. The motion passed 7-0.]
COUNCILMEMBER VAUGHT: Can I ask a quick question real quick?
COUNCILMEMBER MEYER: Yep.
COUNCILMEMBER VAUGHT: Metal pipe. So, what was, you know, we look at all this metal pipe that was put down. And I know there’s a lot of communities that at the same time we’re putting down metal pipe, it’s my understanding there was communities that were requiring concrete pipe which would still be in the ground and wouldn’t be failing. Whose decision, how was that decision made? Was that a Council decision to reduce the burden on developers? Was it a policy decision? I mean, how did that come about where -- because I know it’s my understanding is there’s communities that at the same time that weren’t allowing metal pipe, that were saying, no, you’re going to do concrete. And so, you know, my kind of curiosity is how did we get here. And how much cheaper would it have been, I mean, if it was 30 percent higher cost then, it would have been saving us millions of dollars today and this concept of not kicking the can down the road and stepping up to the plate and making sure we don’t do these, you know, make these mistakes again, but, I mean, do you know -- how would that decision would come about?
CITY MANAGER GONZALES: I don’t know. Mr. Wesselschmidt might have a little more history than I do. Obviously he does.
MR. WESSELSCHMIDT: I’d just address as long as I’ve been here, which is, you know, right at 30 years. So, when I came here we and a number of the other communities were using concrete and pipe, I’m sorry. Concrete and metal pipe. Metal pipe being a less expensive option. So, I can only surmise that it was not only a less expensive option for developers, but it was a less expensive option on city projects as well. And at the time I started here Overland Park was the only one I’m aware of that is, and still are, concrete only. Now, some time ago, as we see plastics being used in all kinds of different parts in the industry, plastic pipes were developed and some of the cities started switching over to that. Even that was a little controversial because the metal pipe suppliers were talking about all kinds of catastrophic failures with plastic pipe. So, after we got very comfortable with some of the plastic pipe installations, then we changed our specs which we brought that to the Council to basically disallow metal pipe through our specifications, disallow metal pipe and allow the plastic pipe.
COUNCILMEMBER MEYER: All right. Thank you.
COUNCILMEMBER MEYER: That concludes our agenda. I will accept a motion to adjourn.
COUNCILMEMBER SANDIFER: Motion to adjourn.
COUNCILMEMBER KENIG: Second.
COUNCILMEMBER VAUGHT: Second.
COUNCILMEMBER MEYER: A motion has been made and seconded on this item. All those in favor say aye.
COUNCILMEMBER MEYER: Oppose nay. The motion passes. We are adjourned. Thank you.
[Therefore, the motion was made by Councilmember Sandifer and seconded by Councilmember Kenig to adjourn. The motion passed 7-0.]
(Shawnee Council Committee Meeting Adjourned at 8:28 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 October 17, 2016
Deborah A. Sweeney, Recording Secretary
Stephen Powell, City Clerk