County Commissioners Present: Bob Workman, Common Chair; Kathy Campbell, Bernie Heier and Larry Hudkins
City Council Members Present: Jon Camp, Common Vice Chair; Jonathan Cook, Jeff Fortenberry, Bernie Heier, Cindy Johnson and Coleen Seng
Others Present: Kit Boesch, Human Services Administrator; Dave Johnson, Deputy County Attorney; Dana Roper, City Attorney; Kathleen Sellman, Kent Morgan, Mike Brienzo, Nicole Fleck Tooze, Planning Department; Roger Figard, Virendra Singh and Kelly Sieckmeyer, Public Works; Lynn Johnson, Parks & Recreation; Terry Wagner, Sheriff; Darrell Podany, Jon Camp's Office; Chris Hain, Lincoln Journal Star; Phyllis Hergenrader, general public; and Cori Beattie, County Board Secretary
APPROVAL OF MINUTES
Cindy Johnson moved approval of the June 16, 2000 Common meeting minutes; seconded by Campbell. Roll call vote. Ayes: Campbell, Cook, Heier, Hudkins, Johnson, Seng and Workman. Nays: None. Motion passed 7-0. (Camp and Fortenberry absent for vote.)
Heier moved approval of the July 6, 2000 Common Budget Hearing minutes; seconded by Hudkins. Roll call vote. Ayes: Cook, Heier, Hudkins, Johnson, Seng and Campbell. Nays: None. Motion passed 6-0. (Workman abstained from voting. Camp and Fortenberry absent for vote.)
APPROVAL TO FORWARD ROUND 13 OF KENO RECOMMENDATIONS
A handout outlining Round 13 keno allocations was distributed with Common packets prior to this meeting (copy attached; see Exhibit A). Boesch said 19 requests were received, totaling $122,018. (Fortenberry arrived at 8:17 a.m.)
The Keno Human Services Prevention Fund Advisory Committee chose to fund three old programs and five new programs (see Exhibit A). Boesch asked that these recommendations be forwarded to the individual governmental bodies for final approval.
Seng moved to forward Round 13 keno recommendations to the City Council and County Board for formal action; seconded by Heier. Roll call vote. Ayes: Heier, Hudkins, Johnson, Seng, Workman, Campbell, Cook and Fortenberry. Nays: None. Motion passed 8-0.
LONG-RANGE TRANSPORTATION PLAN (LRTP) UPDATE
The following handouts were distributed (copies attached):
(Camp arrived at 8:21 a.m.)
Morgan commented that the LRTP process began in January of 2000 and is on schedule. The need to update the LRTP came about for two reasons - a federal mandate stating that LRTP's must be updated every five years and the need to outline designated road improvements made since 1994 (year of last LRTP update). He added that a series of meetings have been conducted with City and County officials. There was also an organized public involvement process which included the formation of a nine-member task force to review the LRTP.
Morgan said an assumption was made during the process that the future land use plan was not changed. Also, a base network was developed which included all model runs and looked at where the deficiencies were in the system. Fiscal constraints were reviewed and a number of alternatives where considered before making recommendations. A particular set of evaluation criteria was used, i.e., economic and environmental issues. All this information was presented to the LRTP Task Force before deriving at a preferred network. The process is now at the point of public review and will eventually become part of the Comprehensive Plan/LRTP modification process.
Morgan noted that there are a number of controversial issues included in the review of the LRTP, one being the beltway. There has not been a decision on the beltway thus far, but plans had to move forward with the LRTP which would inevitably include the beltway. Therefore, with the agreement of the LRTP Task Force, the study used the south and mid-east alignments FOR ANALYSIS PURPOSES ONLY. Morgan said there has been NO RECOMMENDATION that these are the approved routes.
For study purposes, it was also assumed that the Antelope Valley project would be built in its entirety, that Interstate 80 would be expanded to six lanes and enhancements would be made to the basic core of the ridge network in the north and south fringe areas.
Morgan stated that a number of candidate options were reviewed in earnest. They included:
In reference to Exhibit D, Morgan reiterated that the two key elements of this process with regard to the LRTP are that the goals of the existing Comprehensive Plan did not change and the land use plan did not change. He went on to discuss the eleven highlights as outlined in Exhibit D, re-emphasizing that the beltway and Antelope Valley proposals REMAIN AS STUDIES - there have been NO DECISIONS on these issues thus far.
Camp questioned if City and County standards, i.e., the variance in road bids and related annexation, are in conformity as there may be some benefit to having this uniformity. Morgan said they are working with Don Thomas, County Engineer, on this very issue. Figard said the two primary differences between urban and rural roads are that rural roads are built higher with drainage ditches; urban areas generally have the road lower with curb and gutter, allowing the water to drain off the property and collect in the storm sewer system. As the City has grown, many of the older rural roads have been lowered to mesh with the urban roads. During the past 18 months, grading on newer rural roads has been lowered in anticipation of expansion. Discussion continues on ways to save dollars, effort and the County's infrastructure on future projects.
Figard stated that the beltway and Antelope Valley projects do continue to show "study" status with regard to updating the LRTP. He added that all decisions and recommendations made to date are predicated on the fact that the community will elect to move ahead with both projects. If throughout the planning process either project is eliminated, the heart of the LRTP would go away and the process would have to start over. He stressed that the projects need for public and government official approval.
In regard to Antelope Valley, Figard noted that August 29 is the deadline for the extended public response comment period on the draft environmental impact statement. Public hearings were held on August 1st and 2nd. Many comments were gathered and are being addressed. During the last week of September, an evening meeting of the Planning Commission will be held at which time the amended draft single package of the Antelope Valley plan will be presented. A vote would hopefully take place at the October Planning Commission meeting. The City Council could be seeing the issue on its agenda by the end of October or early November. Figard stressed the importance of making a decision on Antelope Valley by the first of the year so that funding from the Corps of Engineers would be available next spring.
In regard to the beltway, Figard said Mayor Wesely asked the beltway consultant team to do everything they could to have the draft environmental impact statement produced by the first of July. This did occur. Since that time, the State Department of Roads, the County Engineer's office, City staff, the beltway study team, the Federal Highway Administration and the Historical Society have been meeting and are close to having a draft document which can then be sent on to the merge agencies, i.e., Federal Transit Authority, the Environmental Protection Agency, etc., for their review prior to public release. The goal is that by the first to middle of October, this document would be signed by the federal government and sent to the merge agencies. By the first of next year, these agencies should have completed their review after which the beltway's draft environmental impact statement could be released to the public. This would start a 45-day window of open houses. Public hearings could be held the first part of February into March followed by a 15-day comment period. After this point, the beltway document would come back to the Planning Department/Planning Commission. Elected officials would then have all the information (social, economic and environmental) to begin the decision-making process regarding whether a beltway is consistent with future growth. Figard said an amendment would be needed at the Comprehensive Plan level, if not the transportation level, should the beltway be included in the Comprehensive Plan as a future strategy.
Figard noted that Antelope Valley is clearly a city-owned and sponsored project. On the other hand, there has not been a decision on whether the beltway should be considered a state highway, a city street or part of county infrastructure. This debate will need to be ironed out once the community agrees a beltway is consistent with future planning. He and Allan Abbott, Director of City Public Works & Utilities, will be meeting with the State next week to entertain discussions regarding this issue. Figard added that, in his opinion, the beltway should not be a city street. He feels it is more consistent with the state transportation system. If the Comprehensive Plan embodies the beltway, it would enable staff to work out details such as ownership, funding, schedules and construction.
Workman said he has asked that the beltway be discussed at the September and October Common meetings from the standpoint of keeping apprised of developments. He added that he is unsure what will exactly be addressed at that time but presumed that a simple question/answer session may be conducted.
In regard to the east beltway, Camp asked if any consideration was given to just doing three major arterials on section lines with a collection at the top and bottom to help avoid a lot of controversy. Figard said specifically or generically, yes. Part of the study included the question, "Do we truly need an expressway-type facility or can the existing arterial or mile-line roads meet that same need?" He said the study suggested that as the community grows, just widening mile-line roadways to four or six lanes will not necessarily satisfy the real needs of future traffic around that area. Camp said he spoke with Doug Bereuter recently who feels there is a real concern about getting the south beltway going and to maybe avoid more controversy by going even farther east. Figard said the next Common meeting may be a better time to discuss the beltway planning process and what might be priority for building it now versus later. He added that as Lincoln grows, every mile-line road (84th, 98th, 120th Streets) will still need to be improved, as well as an expressway constructed to circulate increasing traffic around the community since mile-line roadways will not fulfill this need and purpose.
In reference to Exhibit D, #9, "Needs Analysis Study Areas", Campbell said Yankee Hill Road is pictured as a four-lane arterial. There have been concerns from residents in the Wilderness Park/Highway 77/Yankee Hill Road area that this road will become the south beltway with truck traffic using it instead of Highway 2. She asked what time table is associated with the "Needs Analysis Study Area." Morgan said it will be part of the next Comprehensive Plan update. He added that Yankee Hill Road will really not be pulling traffic off of the beltway. Campbell asked that this concern be considered as the planning process moves forward.
Heier noted that the beltway is entering its sixth year of study even though a decision was supposed to be made last year. He asked how much longer before some decision is made as people have been very patient with the City and County during this process. Figard said while he is disappointed and embarrassed that the process has taken this long, he is confident that the only slack between now and the first of the year is how long it will take the federal agencies to review the environmental report. The Planning Department has done a good job and he is more confident this year that the project will stay on the latest schedule. He stressed that the decisions officials will be making this winter and spring will affect this community for the next 100 years and, therefore, should not be taken lightly. At the same time, this is no excuse for dragging out the process as long as it has been.
Hudkins said he is also dismayed that the decision is now scheduled for next February. He really hoped that a conclusion could have been made in November or December. In regard to Yankee Hill Road, he questioned why the improvement/widening of 14th Street to at least Saltillo or even the south bypass has not been mentioned. Figard said expansion in other areas provided adequate capacity. Hudkins asked staff to review this concept as residents and businesses in that area feel 14th Street is the best shot from Highway 2.
Fortenberry said one of the difficulties in choosing the east beltway route is the fact that there has not been a comprehensive look at the future of the east side of the community in terms of planning until recently. He wondered if these efforts shouldn't be so closely coordinated that they are almost inseparable because in moving to the east, the rural character of the area is so attractive. Urbanizing it will remove this desirability. Creative ways of preserving this rural character, i.e., agricultural and environmental needs, should be sought, while at the same time allowing for appropriate types of development and infrastructure improvement.
Figard noted that if an east beltway is constructed allowing people to get in, out and by the community, from a land use standpoint, there are mechanisms to not allow urban sprawl to happen. He added that there needs to be an agreement on why the beltway is being constructed - is it just to provide another area for new commercial development or for traffic to move around better? Just because a beltway may be constructed, this should not be an excuse to leap-frog development to that area.
Sellman said the Stevens Creek Basin initiative and the beltway decision are running parallel and will influence each other. Timing is good and will allow staff to look at land use specifics of both projects so no opportunities are precluded.
There was a question regarding Pennsylvania and Humphrey Streets (located north of Interstate 80, between N. 1st & N. 14th Streets). Morgan said it is virtually impossible to allow adequate traffic flow across Fletcher Street from 1st to 14th Street. He added that a great deal of commercial and residential development is going on in the area and Pennsylvania and Humphrey Streets need to help people access the area with through traffic utilizing Alvo to Highway 34. Improvements will be made on 14th Street to Superior Street. Morgan added that another issue to consider is traffic coming off Antelope Valley and the I-180 corridor.
Workman commented that he noticed an interim truck route was included along 84th Street while the beltway is being constructed. He inquired why 148th Street wasn't indicated as such and whether it was because it is too far from the City. Figard said he wasn't able to answer this question. Workman then said 98th Street from Cornhusker Highway to Waverly Road is designated to be paved in the future. He wondered if this is due to road counts or plans to make 98th Street a through street. Figard said the decision was not based on road counts. He added that for residents, this street is the one of few which goes all the way through and, therefore, should be preserved as a connection.
Figard said the public way corridor vision happens from two different directions - elected officials and the visual impact of those entering our community/infrastructure improvements. It was decided that corridors are needed which provide flexibility for the future in terms of landscaping, pedestrian movement and trails, as well as the visual pleasure of driving through a street. He added that corridors are intended to provide an avenue for the future regarding quality of life and reduction of agony if, in fact, growth suggests the need for wider roads. Work will be done with developers to set aside wider space or an agreement on an easement to prevent construction abutting rights-of-way. Cost and maintenance issues will also be addressed in the future.
Lynn Johnson said it must be made clear to developers that not every mile-line road will have a 140' right-of-way since many concerns from the community have been received. Figard said the public way corridor plan is broad visioned so that during the next 50-100 years, this concept can be applied, eliminating the tight corridors seen today. Seng said while this visionary approach is exactly what officials have been wishing for, the map outlining the corridors has been scaring people. She added that flexibility will be a key issue. Campbell said it should be made clear to the community that there will be some equity on both sides of a road and that there will be multiple ways to approach the project. Figard said staff will come up with a different map.
A joint hearing between the City Council and County Board regarding the LRTP will be scheduled in October.
By order of the Chair, the September 15th City-County Common meeting will begin at 7:30 a.m. (NOTE: Due to a scheduling conflict on the part of County Commissioner Larry Hudkins, the Common meeting on Friday, September 15, 2000 will begin at 8:15 a.m.)
Sellman commented that she met with the County Board who requested this issue be placed on the Common agenda because of a concern that future County regulations governing sexually oriented businesses be consistent with City regulations. She and City Attorney Dana Roper spoke with the City Council who provided the direction to limit the regulatory proposal at this time to live adult entertainment establishments. To date, no legislation has been drafted.
Sellman proposed that the County look at a resolution which would establish locations for live adult entertainment establishments. This would require the addition of three definitions for both City and County legislation: 1) adult cabaret; 2) specified anatomical areas; and 3) specified sexual activities. In the County's zoning resolution, an amendment would be made allowing this use only in industrial zoned districts. This could be done by a special use permit including a public hearing before the County Board OR a conditional use permit, whereby if the applicant comes forward and meets all requirements, the permit could be issued administratively.
Sellman indicated that there are eight industrial locations within Lancaster County. They tend to be long and narrow which causes the implementation of a separation requirement from different types of zoned districts surrounding industrial districts to be very difficult. The industrial zoned districts in the County could be designated and certain types of conditions established for a permit but, on the other hand, because of the shape and size, it may be that conditions cannot be established.
With regard to the City's proposal (including the three-mile zoning area), a look will be given to specific industrial and highway commercial districts where it may be appropriate to establish a permanent requirement. Again, this could be a special use permit (requiring a public hearing) OR a conditional use permit (issued administratively). Sellman felt the latter would be the most efficient way of handling these requests. It was noted that districts will have to be carefully established taking into consideration secondary affects, separating live adult entertainment businesses from each other, and separating these businesses from other zoned districts which may be less compatible (AGR and residential districts R-1 through R-8). Other users were identified which may be incompatible with live adult entertainment establishments: child care centers, hospitals, recreation areas, correctional facilities; and treatment centers.
Sellman noted that distance requirements are not consistent across the country, ranging from 200' to 1,000'. A map was prepared outlining I-1, I-3, H-3 and H-4 districts, although, she stated these are not the only ones which can be used. A 1,000' separation buffer was mapped from the edge of these districts and the AGR and residential districts. The buffer was also applied to any County zoning adjacent to these zoned districts within the three-mile area that indicates urban-type development is likely in the near future. A 600' buffer was also mapped. Sellman added that these models are not proposals - but are conceptual only.
If this process moves forward, Sellman said decisions will need to be made today regarding:
If the City and County proposals are to be before the Planning Commission on September 6th, answers to these questions will need to be known so the County's legal ad can be forwarded to the newspaper by August 21. The City's legal ad is due on August 23. If officials are not prepared to make these decisions today, another Planning Commission date will need to be considered.
Cook said he feels the zoning approach is the appropriate approach with regard to the City, but future litigation must be avoided, especially when an applicant meets all the necessary requirements but the application is denied anyway. He thought a conditional use permit may be the way to go, although, the County may desire a different approach. Also, highway, commercial and industrial districts seem appropriate areas for this type of business and a 600' (two block) spacing requirement is reasonable. He did find a zoning code in another city which placed restrictions on signage.
Sellman commented that new zoning requirements would apply only to new establishments; existing establishments, if operating lawfully, would not be affected to the extent that they remain the same size and operation. She said it appears that the location housing Cheetah's would have been affected by these regulations. If the business is operating lawfully at this time, it would become a lawful, non-conforming use under the proposed zoning scheme.
Heier stated that he wanted to make it clear to the public that government MUST allow this type of entertainment to exist in a specific area and that officials cannot ban live adult entertainment from the community. Sellman said there are court decisions which have tested this issue. The language which was handed down refers to "ample alternative avenues of communication" meaning that other properties do have to exist where these businesses could locate. She added that the hours of operation should be reasonable and public utilities must be available to these sites. Officials would really only have a say on time, place and manner of these businesses.
Fortenberry said City Attorney Dana Roper may be able to comment further
on Commissioner Heier's question with regard to the City because he did
not believe all the facts stated were correct. He added that he has a
problem pushing live adult entertainment businesses onto to those who
have invested in industrial areas. Also, he felt that today's
presentation is giving the impression that this is the direction the City
is going to take. There is a parallel discussion taking place on whether
the City ought to require, through a public nudity ordinance, more
stringent regulations, though, this may not help the County much in the
three-mile area. He went on to say that proceeding with zoning
regulations to aid the County is most appropriate but the County may want
to lobby the State for empowerment to pass more stringent public nudity
Fortenberry noted that Omaha does not seem to have any problems with this public nudity. Evidently, they have outlawed adult entertainment in liquor establishments but do not prohibit public nudity in juice bars. But because of vigorous enforcement, Fortenberry said Omaha has dealt with these businesses successfully. He suggested referring to these establishments as "sexually oriented businesses" instead of adult entertainment. He added that this issue has been terribly divisive and horrific to residents, therefore, officials need to act swiftly and strongly to prevent more sexually oriented businesses from cropping up in Lincoln and Lancaster County.
Roper commented that there are some legislative abilities as the Supreme Court has addressed "pasties and g-strings." There are also communities which have required more body parts to be covered and have not had their legislation challenged by the Supreme Court. He added that there has not been any change recommended to the B-4 district (downtown area).
Seng said she started out thinking zoning districts were the way to go but after seeing these areas mapped out, it would be really tough on the industrial zoned areas of the City to absorb all the sexually oriented businesses. Doing so could really hurt areas, such as Cornhusker Highway and West "O" Street, which are designated for entry way improvement. Sellman noted that there was a suggestion to separate adult businesses from each other by 1,500' to prevent clustering.
Camp indicated that he sees three levels for consideration:
Campbell indicated that from the County's perspective, she would want adult businesses to go through the special permit process as the public has the right to make comments. Cook said he understands the desire for public comment but worries about people having a false idea of what governing bodies can do with regard to these businesses. He added that this situation goes beyond what normal special permits would cover because it involves the freedom of speech issue and courts may have an extra level of scrutiny, i.e., is local government improperly censoring someone's ability to express themselves. Workman said he agrees with Campbell's comment regarding the special hearing; he also agrees with Fortenberry that adult businesses are terrible for our community. He questioned whether officials would want to go out on a limb by being creative and coming up with other requirements besides zoning.
Dave Johnson said the County only has powers which the State allows and, therefore, has less power than the City. There are some other possibilities - zoning being only one of them. He will continue to research options, trying to come as close as possible to what the City would like to approve. Workman asked if dress and age restrictions could be instituted. Dave Johnson said these issues may overlap law enforcement jurisdiction and should be kept separate. He added that there are a number of cases which indicate local government can have some regulations as long as they do not conflict with liquor statutes. Also, he asked officials to keep in mind that liquor, nudity and zoning issues are very different and would follow different case law.
Hudkins said the City does have zoning authority within the three-mile area and some of these residents feel that decisions are being made without direct elected representation. He agreed with Campbell that holding a public hearing on adult entertainment applications is the best route to go.
Sheriff Wagner said he is glad the City and County are discussing adult businesses because often times the ripple effect happens whereby if the City of Lincoln has too stringent of regulations, these businesses may move to other locations/communities in the County. He urged villages within the County to adopt similar legislation as to prevent this from happening. Officials should also be aware that businesses are attracted to rural areas to avoid the City's zoning restrictions and because they know the County does not have as many law enforcement resources as the City. In reference to juice bars, he said these businesses cater to the 18-20 year old crowd who have income potential but no place to go for adult entertainment since most places have liquor licenses.
Campbell said Sellman is looking for answers today and based on Fortenberry's and Camp's questions, legal advice is necessary. She said she understands the City is wrestling with the question of whether you can totally ban adult businesses. She suggested starting on a zoning tool, knowing that the other tools may have to come along later. The City Council was urged to discuss this issue on Monday during a pre- council meeting. The County Board will also discuss the issue again next week and forward answers to Sellman shortly thereafter. It was not sure if the September 6th deadline would be met.
Fortenberry said while the City does need to find a mechanism to help the County's immediate problem, zoning is not the long-run solution. He does not want to see a temporary solution end up being the long-run solution.
Cook added that delaying the process may provide for some missed opportunities, i.e., extra time could allow Cheetah's to open as a juice bar which would then be grand fathered under new legislation. He would like to see something move forward for the September 6th Planning Commission agenda even if it is not exactly what everyone likes - more detail could be added later. Seng commented that while zoning is just one piece of a very large puzzle, it should move forward. She requested copies of a map outlining the different industrial and highway zones. Workman also agreed on the zoning approach as a prelude to additional requirements.
Campbell asked the City Council to consider a change to zoning ordinances and to forward answers to Sellman's questions in the next couple of weeks so that by the end of September, the issue could be before the Planning Commission. Each body can review the issue with the Planning Department and respective legal staff and if in agreement, legislation could then be produced. If the City Council is not comfortable with this approach, they were asked to notify the County so the Board can proceed from their end.
Fortenberry inquired whether the zoning mechanism will help the County. Campbell said they do not know. Fortenberry said to keep in mind that zoning alone is not the final solution.
Cook commented that it seems the idea today is not to push for the zoning change to be on the September 6th Planning Commission agenda. He said his intent is to have something in place which will withstand legal scrutiny and get the job done under the circumstances. He added that amendments are always possible in the future.
Seng asked if Planning could get maps to the City Council by Monday. Sellman indicated that this would be possible. Fortenberry said he will try to schedule a pre-council meeting on adult business zoning for Monday, August 21, 2000.
There being no further business, the meeting ended at 10:10 a.m.
Cori R. Beattie
County Board Secretary