Six examples showing why the city is reviewing development rules

How’s this for a deal, downtown business owners?

Buy a couple of parking meters for the city — the fancy, automated ones — and the city will let you use a few parking spaces for some outdoor dining at your restaurant.

That’s the offer city officials considered for Elliot Nelson’s Elgin Park Brew Pub across the street from ONEOK Field.

That is, until they thought better of it and put the offer on ice.

“I think many people, if not most  — maybe even all  — have kind of agreed that maybe a license agreement is not the tool for us to use” on that project, said city Planning Director Dawn Warrick.

City leaders are also scratching their heads over another development project. The owner of  Harrington Lofts, 724 S. Main St., was told he would have to get a license agreement before he could build a concrete stairway on the sidewalk on the south side of the building.

His architect even sent a letter to the city saying construction of the sidewalk would not begin until the permit was issued.

But that’s not how it went down. The concrete stoop was built before the owner applied for a license agreement, city records show. Now the city is trying to decide how to handle it.

The options aren’t great: Make the property owner remove the stairway, or let him keep it and extend the sidewalk south, knocking down an old, healthy tree in the process.

These incidents, along with several other downtown development projects that didn’t quite go as expected, are what prompted the city to step back and take another look at how license agreements are handled, city officials acknowledged last week.

They’re also looking to other cities to see what legal arrangements they have with private property owners who encroach on public property.

Don’t misunderstand: City leaders love development, especially downtown. They love the vitality and sales tax it brings to the city. Except when those shiny new buildings — or renovated ones, for that matter — extend onto public property, often onto sidewalks.

That’s why a couple of weeks ago, City Engineer Paul Zachary held a press conference to explain that the city is reviewing its procedures for issuing license agreements to make them more consistent and uniform.

A license agreement is essentially a permit issued by the city that allows a property owner to use a piece of public property. The agreements must be approved by the City Council.

Historically, license agreements have dealt primarily with relatively minor — and often temporary — encroachments into the public right of way. Common examples include awnings extending over sidewalks or tables and chairs placed on the sidewalk for outdoor dining.

The intent of the agreements is simple: If someone wants to use city property for a private purpose, that person needs to get the city’s permission.

Tulsa is in the midst of a downtown revitalization, with grand visions of creating a walkable city where residents and visitors alike can stroll the streets enjoying the sights, sounds and smells.

Most everyone — from the business owners to the hippie granola crowd — is on board. Making that vision a reality, however, takes some planning and looking out for everyone’s rights.

City officials are trying to balance the competing interests. They want to encourage downtown development, but they want it done in a way that respects and encourages pedestrian traffic — especially for the handicapped — and allows for future infrastructure projects as needed.

They also don’t want core functions of a private building, such as a stairway, built on public property, unless a hardship can be shown.

Which brings us back to the license agreements. City officials had begun to notice that some developers were constructing things on public property they either weren’t told about, didn’t learn about until after the project was completed, or knew about but didn’t require a license agreement as they should have. Many of these encroachments are on sidewalks.

The city, for example, has no record of a license agreement ever being issued for Ti Amo’s, 219 S. Cheyenne Ave.

The city has addressed one part of the problem. In the fall of 2015, it changed its building permit process to require that developers have license agreements in hand before a building permit can be issued. Prior to that, the city issued building permits with instructions to the developer that he or she needed to get a license agreement or risk having that piece of the project removed at the developer’s expense.

Still, issues linger. Zachary told The Frontier that a possible outcome of the city’s review would be to use other types of agreements, including leases, to ensure that private property owners compensate the city when they use public land to add permanent structures that are integral to the function of the building, such as stairways and handicap-access ramps.

“Is a license agreement even the proper instrument to use to do this?” Zachary said.

The following projects have been cited by various city officials as examples of what prompted the city’s review of its license agreement procedures:

Elgin Park Brew Pub

216 N. Elgin Ave.

This project did not go through the normal licensing agreement process.

In a meeting on the 15th floor of City Hall, city officials, including Warrick, agreed to allow Nelson to remove four parking spaces directly east of the building and replace them with an expanded sidewalk that could be used for outdoor seating.

Warrick said the deal was done with the best interests of the city in mind, not as a favor to a big-time developer.

“I think it was a recognition that the city and the private entity could both benefit by modifying the street edge,” Warrick said.

The developer benefits by getting an outdoor patio and the city benefits from additional sales tax revenue and improved walkability, Warrick said.

“This business is now going to have a dozen more additional seats, tables. You turn over a two-top pretty quickly in a pub … and every time you turn over a two-top and generate more revenue, that’s more tax for the city,” Warrick said. “It’s a trade off.”

Nelson said his discussion with the city began at a time when officials were trying to figure out how businesses could lease parking spaces on a permanent basis for valet service and other uses. The city is trying to put together such policies while at the same time increasing parking revenue, Nelson said.

So he made an offer.

“I said, ‘Look, why don’t we fund a couple of meters so we help the overall parking eco-system and help generate more revenue for the city, and we’ll file the (permit) for this sidewalk and just go,'” Nelson said. “And that’s what we did.”

Nelson said he understands how some people might think he was given special treatment by the city, but he doesn’t see it that way. He noted, for example, that when the Police Department needed bicycles for its officers, his company purchased one.

“Right now, downtown needs to figure out our parking meter system,” he said. “So yeah, we just said we’ll donate some meters to do that.”

Nelson noted that the lost parking spaces were new, seldom used and without meters, meaning the city was making no money off them. Elgin Park will have parking in the back of the building that will more than offset the loss the four parking spaces, Nelson said.

“They (the city) approved the everything to pave it, now they’re not sure they want to let us use it,” Nelson said.

Planners and consultants always point to sidewalk seating and downtown activity as vital to the development of a city’s urban core, Nelson said. He said that is what he is trying to accomplish with the outdoor patio at Elgin Park.

“We just want to see that happen,” he said. “Whatever it takes.”

Elgin Park’s application for a license agreement was initially opposed by several city departments, including Planning, Traffic Engineering and Streets and Stormwater, city records show. City officials and the developer eventually settled on the parking meter proposal. The two meters are valued at $12,600.

The deal never went through because of concerns that a license agreement was not the proper legal instrument for such a transaction. City officials are working to determine whether a lease or other type of agreement would be a better way to handle situations where developers compensate the city for the use of public land.

“We shouldn’t be including an exchange of value in a license agreement,” Zachary said. “It really should be a lease or a contract or something.”

Warrick insists the proposal, the first of its kind offered by the city, was not a quid-pro-quo. But she said she understands how people might interpret it that way.

“We made a decision as to how the edge of that site was going to be treated,” she said. “They don’t have to be tied together, like a tit for tat.”

Every case is different and must be looked at individually, Warrick said, adding that some properties are more restricted than others when it comes to options for outdoor dining.

“If we had had a policy in place, we would have had a better understanding of what instrument to use to accomplish the outcome and what we the expectations are from the city and establish that in a predictable way for the development community,” she said.

Nelson agrees.

“Right now, downtown needs to figure out our parking meter system, so we just said, ‘We’ll donate a couple of meters to do that.'”

He added: “If somebody thinks we’re getting special treatment, tell me. I’ll do whatever the rule says I need to do. But in the absence of rules, I can’t just sit around and wait forever.”

Harrington Lofts

724 S. Main St.

Warrick said the city notified the developer of the Harrington Lofts in 2013 that he would have to get a license agreement for the stairway he planned to construct on the sidewalk along the south side of the building.

A letter from the developer’s architect states that construction of the stairway would not begin until the license agreement was approved by the city.

The developer did not apply for the service agreement until the stairway was constructed.

Engineering Services recommended denial of the licensing agreement because the sidewalk amounts to an unreasonable obstruction of the public way, taking up about 50 percent of the sidewalk, Zachary said.

The city would perhaps have looked at the stairs differently if they were put in to meet the Americans with Disabilities Act requirements, but that was not the case, Zachary said.

Harrington Lofts’ license agreement application states that the new stairway on the street is needed to create a new entrance into the building. However, building documents show that there was once a internal entrance  — not on public property  —  to the building at the exact location where the exterior stairway was built.

After presenting the case to City Council, Engineering Services was asked to come up with a solution that would preserve the stairway. One idea being floated is to keep the stairway in place and extend the sidewalk south, knocking down an old, healthy tree in the process.

One Place

15 East 5th St.

The license agreement for this project pertains to two handicap access ramps along Denver Avenue. The agreement includes language that requires the applicant, One Property Management, to fill in the planters near the doorways on the sidewalk along Denver Avenue to maximize the remaining sidewalk.

City records show the property manager was notified of the terms of the removal on Aug. 5, but as of Tuesday the plants had not been removed.

The developer is operating under temporary certificates of occupancy until such time as he meets the requirements of the license agreement.

The city has said it cannot issue a permanent certificate of occupancy until the plants are removed.

Hodges Bend

823 E. 3rd St.

This popular Pearl District bar did not apply for its license agreement until June, long after a partitioned outdoor dining area was created along Lansing Street, on the east side of the building.

According to the license agreement application, the outdoor dining area extends out 96 inches from the east wall of the building, leaving a sidewalk 36 inches wide.

Engineering Services has made Hodges Bend aware of its objections to the license agreement application and given the bar time to respond before it makes its recommendation to City Council.

GreenArch building

10 N. Greenwood Ave.

The original plans for this building called for no ADA-compliant ramps along Archer Street because there were no entrances to the building along Archer, according to city officials. However, a late change of tenants required two entrances be constructed along Archer and thus the need for access ramps.

Engineering Services officials say they did not learn of the ramps along Archer until they were made aware of them by the city’s Streets and Stormwater Department as they were being constructed; other city officials say they were aware of the need for the ramps before they were constructed.

Engineering Services eventually recommended approval of the license agreement and it was approved by City Council.

The fact that Archer Street has a wide sidewalk made it easier for the city to accept the encroachment into the sidewalk, Zachary said, because there is still plenty of room for pedestrians to walk by.

Lefty’s on Greenwood, a tenant in the building, received its license agreement in 2014.

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