BROOKINGS – The Brookings City Council voted Tuesday to establish criteria for building in the public right-of-way. 

Mayor Keith Corbett and Deputy Mayor Patty Bacon were absent, so Councilor Dan Hansen presided.

City Engineer Jackie Lanning explained the resolution to the council, starting with background.

The city council adopted criteria in 2004 concerning the right-of-way, which is a legal right of passage over another person’s ground, according to Merriam-Webster. 

Prior to 2004 in the City of Brookings, a person was not allowed to build in the public right-of-way. The council also adopted an amendment to the city ordinance allowing construction, Lanning said.

The way the resolution and ordinance work together, the ordinance stipulates when somebody would be allowed to build in the right-of-way and the process to do that. The resolution outlined the specifics to the construction in the right-of-way, Lanning said.

“We’ve been talking with a potential developer who is looking at building in the right-of-way,” Lanning said. She did not identify the developer.

When they reviewed the criteria, it was questioned why the criteria was listed at granting no more than 30% of the width of the sidewalk measured between the property line and the back of the curb. It was also stated that in no instance shall the encroachment be greater than 36 inches, she noted.

“So at that time, it must’ve been the philosophy of have about a third of the sidewalk as an encroachment, two-thirds of the sidewalk would be open to the public,” Lanning said.

With that criteria, it wouldn’t be possible to have a stoop outside of a door, especially in the downtown area, because it would not meet the requirements for the Americans with Disabilities Act, she said.

Her office brought the information to the Development Review Team. City Attorney Steve Britzman and other staff reviewed it, to see if the encroachment proposal could be allowed on a case-by-case basis by the council, as long as it meets ADA requirements, Lanning said.

“We were proposing this language for a little more flexibility, especially as you look in the downtown area, trying to provide accessibility to buildings in the right-of-way, leave enough room for public sidewalk ADA-accessibility, as well as provide accessibility within the buildings,” Lanning said, asking for feedback from the council and whether councilors were comfortable with the proposed language.

Councilor comments

Councilor Leah Brink said she was curious about the language and she had concerns about the case-by-case criteria.

“If we say yes to one, I feel like we’d have to say yes to literally every project,” Brink said. “It’d be hard to say no, if we’ve said yes and they meet the other things.”

“It’s the merit of each project that you have to look at to see how it’s advantageous for the public and the property owner or the business,” Councilor Ope Niemeyer said, adding he assumed this would mostly affect the downtown area. “How wide does the sidewalk have to be to meet ADA?”

Both Lanning and Hansen confirmed it needed to be 4 feet.

Lanning cited the ordinance and section, acknowledging the proposal would apply to any case in the public right-of-way. 

“But that’s where we get the biggest questions is in the downtown area, because most of the buildings are right on the property line,” Lanning said. “Either have to do it internally on their private property or out into the public right-of-way.”

The fixed dimension was not flexible enough, “given some of the nooks and crannies of downtown,” Britzman said. 

“I’m not sure that we’d establish any precedence if we’re looking at a unique space. Obviously, we have to apply the criteria with the objective of achieving ADA compliance, if possible,” he added.

City Manager Paul Briseno said there are different examples.

“I know in some places in the downtown, sidewalks are wider than others, so it depends on the project in that area,” he said, adding the locations of streetlights, overhangs and planters would have to be considered as well. “That’s why it would be case-by-case.”

Hansen wanted to make sure people would only have to make one appearance before the council, instead of coming back multiple times. 

“We would try to have it all in one package for the city council. Usually a remodeling, it’s all done at one time,” Lanning said, adding that the applicant does need to show in the application that they have explored other alternatives to using the public right-of-way. 

“They need to have a narrative, so the city council knows they at least looked, explored those alternatives on their own private property,” she said.

Contact Jodelle Greiner at jgreiner@brookingsregister.com.