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10/17/83 City Council Minutes133. THE REGULAR MEETING OF THE KALISPELL CITY COUNCIL WAS MELD AT 7:30 P.M. MONDAY, OCTOBER 17, 1983 IN THE COUNCIL CHAMBERS AT CITY HALL. MAYOR MCDOUIELL PRESIDED. ALL COUNCILMEN WERE PRESENT. APPROVE MINUTES Councilman Zauner moved that the minutes of the special meeting of September 26, 1983-and the regular meeting of October 3, 1983 be approved as presented. Seconded by Councilman Grainger. Motion carried. CITY OFFICIAL REPORTS Treasurer for August 1983 City Judge for September 1983 Police Chief for September 1983 Building Official for September 1983 Fire Chief for 3rd Quarter 1983 Councilman Nystul moved that all city official reports be accepted. Seconded by Councilman Saverud. Motion carried. PUBLIC HEARING - BUFFALO HEAD TOWNHOUSES (Resubdivision of Buffalo Head Addition No. 92). Request is for Council approval of the preliminary plat of Buffalo head.Townhouses, the resubdivision of hots 2-9, 11-15, 21-24 and adjacent Common Areas of Buffalo Head Addition No. 92. Mayor McDowell asked for proponents. Stan Pine, Developer, stated that his request has been reviewed by the City -County Planning Board and the Annexation Committee. He is not asking for any additional units. The problem is that townhouses follow the property line and do not allow for setbacks, whereas -a condominium or apartment house does not. When the area was sub- divided in 1978 no one anticipated that this would be problem. This is the first sub- division of its kind in the State and in talking to various persons, no one really knew what.would happen when development started. This plat is simply to clarify pre- cisely how to resubdivide the lots into the same number of units that were originally contemplated. Mr. Pine asked the Council to approve the preliminary plat with the same recommendation as set forth by the CCPB, namely: 1. That all roads and streets be named and appropriate signs posted and further that an adequate unit marking system be provided. 2. That the original lot lines be shown on the final plat(s). 3. That all the requirements of Section 3.05, bulk and dimensional re- quirements of the Kalispell City Zoning Ordinance be waived; further, the off-street parking requirements of Section 4.02 shall be met prior to the issuance of building permits. 4. That the title report be reviewed by the City Attorney for any encumbrances. 5. That final covenants reflect the appropriate lot identification to meet the approval of the City Council prior to approval of the final plat s). 6. That preliminary plat approval be granted for three years in accord- ance with 76-3-610 (M.C.A.) as amended October 1, 1973. Mayor McDowell asked for further proponents. No one responded. Mayor McDowell asked for opponents. Marlene Keller, 375 Grandview Drive, stated that'she realized this had already been approved at one time, but case is now and she is very unhappy with this subdivision in a semi -rural area. She stated there should be consideration on the number of units for the number of lots because there is going to be practically no area for the recre- ational vehicles that home owners will have. There is'a provision for parking cars. Other than the property that was donated to the City for the park, which may be 25 years down the road, there is no area for playing, for children, and with just the units he has built so far, the children are using our facilities. Mrs. Keller stated that there will be an increase in traffic by at least 150 cars. There are only two access roads,.sunnyview and Grandview Drives. The Baptist Church is going in, which will increase traffic again, plus the college, and there should be some consideration to this. She stated she was not opposed to planned unit development, but is opposed to density. It averages out to be approximately 15" units per acre. The other de- velopments are already providing their own recreation and green belt areas. She 134. stated that she finds it does not.involve property devaluation, but life-style deval- uation. The road is now used by joggers and, it really adds a very world feeling to the area. If traffic increases, -.joggers will not be able to use the road and there is no sidewalk. It is a narrow road for school children and Mrs. Keller thinks some thought should be given to.ths. Jim Portnouw, 309'Harrison .Blvd. stated that"he was opposed .to the concentration of the e arm townhouses in.tha't particular area which referred to the fact that. he fe�rot meeting the: ratio of fPoor.area to the lot area. and you can see"'that "some of that -is going .to be right behin& my lot:. He:felt„-the Council ought" to stand• is ground and force the d'eve'1 Doer to get :the proper variances before they.approve any:such"plans. As it stands now, he does not -believe that this pr,oposa,l`':me6ts the:zonzng,mao of that area. Dr. Wild'gen',.691.3uffalo Hill .Road,, stated that he lures across the_road there have -?been three"_nzce.units:htilt.and no one'"liv�ng,in,.them. If he:were to build on his_property he"could put aboui~. 150 units on his 71 acres:. :He'stated`.he.`6annot imagine that number of people in that' atourtt .:of " space Uri thout creating ;a -i"re-mendous environmental impact on that section.bf our town" He'. stated that the env_ o mental impact,:the small road, the slough down. below and."no place, for kidis to play/arty. er"e'are already kids having trouble playing., because one of : diem starter a, fire on his place,., iiurned off a "good one-half acre. Mr.Fino is'a"goad:developer but>thatjs too many" people.for that size area. Even downtown, there are„not.that maAy'people in"that.small.an'area. There will be so many children in the area given for park land that you.wili:have to .patrol it, especially if they continue to :start fires, close t.o".his house: Mayor McDowell asked if. there. were.o-ther".opponents. Hearing none.,. the public hearing was,' declared closed .and the-ieeting -turned, .,:.over fo.t CaunciT,,discussion. 'Counc_ltiiiart Paizger':state'd''t�at `he has attended•. three h+aarings 'on the. request -and is. •quite familiar with the -prohlem. .the subdiv_sion:was apprgved for"4 and 6.pl.exes and:it,Js pre- ferabl'e to -have 1nd:ivi.dual. owners rather; than: ,tr.anszen:t:s RESOLUTION ,#35.'00 Coonei:Lman Polder moved .rto adopt llesolu'tion #'1500: a resolution .to approve the preliminary - .plat for Bpff416 Head 'townhouses'sub;lec"t tb alitide condi:t on_s of the-Flanning Board. Seconded by Councilman Rutz: Councilman Nystul asked"if it would resolve the.quesp,i.on on issuing building permits. If adopted with all CCPS recomniendat'io'ns", it 'would. City Attorney Neier:has.r"eviewed the situation and presented the following facts, uestions- and-pon-sidle -solo- Lions: TO: Mayorand'Gity Council FROM, Glen Neier, City Attorney RE: Buffalo Head Town Houses DATE: October 14,. 1983 The City'Counci1 will .be reViewing,the above -entitled Preliminary Plat at a public hearing 'on:October 1.7, 1983. The'City-County.Planning Board.co.nside"red,"the Preliminary Plat on October 11., 19,83, at its regularly scheduled meeting and approved the Preliminary Plat. As.•part of the approval, the City -County Planning Bo'ard..waived the"recommende.d.requirement that the De-. veloper .comply. with. Section,,,3.05 Kalispell Zoning ordinance (Bulk and' dimens iona 1 requirements). This memo will:.deal-with the:.problems faced by the City Council. in'con`sidering.the Preliminary Plat. Buff ato Head Addition No.92 was originally approved by the City Council (Resolution No.3201) on the 1.6th day of Octobe.r,'197$_. As part of the approval, the City Council, provided that:. {c1 That the Dve"loper.limit the units (91) within the eisting unitplan to single family detatc.hed and row. -house units an,d.the design concep.t'as submitted and an RA-1 zoning be es- tablished in accordance with the new.City ordinance._ Section 3.05, Kalispell Zoning ordinance, sets forth the bulk and. dimensional requirements of ; the .vari.ous" zones within the City of Kalispell. Section 3..05 Kalispell Zoningordinance states with regard.to RA-1 zone; hW VL%NIMM LOT REq, O ARHA wIDTn DISTRICT (.v. ft.) ffee1) RA-1 1. No T� 1 TABLE 3-2 UIULR. DIMENSIONAL AND GENERAL REQUIREMENTS _ MINIMUM YARD MAYJUM MAf[=u OP!-STP.EET KAMMU14 LOT 9UMDWG HatUr PARRDIO 5BNCE LOWS G■MMEE T MAXIMUM xWomM IMOUP. AREA OPEN SPACE HINOn1AI LIVING SPACE WNt"Uu ?EEC EA?lO` R UIRE-Mmm COVERAGE fee! —__1tF _ fief RE [UIRFJSQN?6 PATIO RATIO RA777 SPACE RAT[ Preou -15 Side - f e■. N/A 35 see S■m u R-! N: A "Wrm ■d .377 I.! L.3 ,y! Side Carnes _U eec11rs1 Amme" 4.02 Re . r'11h PI&D wabfl■hea vpr &%aea alley■ - S ' - ■n1■euea To, Rmr, Wwwat . ee46n■hed aRoM .0 In a letter dated November 20, 1979 to.the City Attorney, the Current Planner of the APO stated: Resolution No. 3201, Section 3 (c), "That the De- veloper limit the units (91) within the existing plan to single family detatched and row house units and the design concept as submitted and an RA-1 zoning be established in accordance with the new City ordinance. This 'statement would lead me to believe that the City .has given approval to'all land uses and struc- ture placement as indicated on the "site plan". With:this.belief, I assume the developer should have the right to develop the properties involved without any further need for "variances" -or "con- ditional use permits". The City Attorney responded on December 4; 1979 and stated: I agree with his conclusions on all questions pre- sented. That is, that the Council did approve the :- design concept by Resolution No. 3201 (c)'and no further need for variance or conditional use permit exists as long as the plan is followed. Neither the Preliminary Plat or the Final Plat of Buffalo Head Addition No.92 place the "row house" units on the approved lots or set forth any configuration.- The Final Plat as submitted merely limited the Developer to 91 units on 24 lots. All references to the "site plan" were based up- on documents which are not part of the official record in the Clerk and Recorders Office of Flathead County. Since the approval of Buffalo Head Addition No.92, the Developer has con- structed two "townhouses" in the subdivision, using the minor subdi.vi- lion review process of the subdivision regulations. -The plats for those subdivisions have been duly approved and recorded. -- 2- 136. The resubd.iviso.n now under.cons,ideration .involves -the subdivision of 17 lots within the original,.Buffa:lo Head.No.'92:And the construction bf 78 "town house'."'units oft the original lots. The "town house" uunits,�de- picted on'the'Pre.liminary,Plat:.are the building lines of the proposed structures As submitted, the "town: house"' units do .not purport to comply with the set back 'and floor area 'ratio. required 'in RA-1 zones. The Developer has...stated that .,prior approval of.the Buffalo Head Addi- tion N0.92 and:subsequent action by the City ._and Developer effectively relieved him from.the require.ment.'of Section.,3.45, Kalispell Zoning Ordinance. He has further stated that he is following the "site plan" by limiting the development to 91 units on 24 lots and the resubdivision as presented does not vary:from what was envisioned in the original development. The Developer has installed 5:11.b.. N0.3.28., all .required public utili- ties and paved streets, both;public and private. The installation.of utilities and streets has effectively limited what the Developer can do with the property. The City -County Planning Board's action,,,ori''the.,Preliminary Plat, .at the October 11th Meeting was in the.form of a recommendation of the Board:. There remains a real question,of authority as to whether or not the City - County Planning Board has..the.power to even consider City zoning matters. The problem with the Boa.rd's,.authority stems primarily from the fact .that the Board and the City Zoning. Commission. have concurrent;:membership and therefore authority and'decisions ofte5,..,bverlap. The above -stated authority problem does not reduce the importance of the. fact that the Kalispell Zoning'.Ordinance'..s.,; and should be, enforced by the City Council acid their designated Boar:ds.':and officers. The zoningof the. various areas,o.f the city is :a function of the:Council.. Variances and exceptions tothe ordinances enacted are powers delegated by statute to the Board of Adjustment.. As stated before; Buffalo Head;Additi.on No.92 was approved with RA-1 zoning. The Developer, on the:face,of the --Preliminary Plat, cannot com- ply with the requirements of.the.RA-1 zone. The questions faced by the Council are two: (1),Should .the Developer be required to re -design the 'Preliminary Pl,at(reduce in size and alter con- figuration): so as, to' meet .the.' set back and floor area ratios: of the RA-1 zone? (2) Did'the.approval of the Buffalo Head.Addi- ti.on No:.. 92 and :sub.sequent action „by the City, the APO.,and the Developer cause the Developer to believe his property subdivision was finally approvedand he could proceed to build? 137. 1 1 The Council, if it determines that the Developer should comply with the requirements of RA-1 zoning, leaves the Developer with no choice except to proceed to the Board of Adjustment with a.varianc.e request. The City Counci:.l does not have the authority to grant'a. vari.ahce.'to the Zoning ordinance. (S.ection 6.10 Kalispell City Code:).. The Council, presumably, had the authority to determine.that the appzo--. val of Buffalo Head Addition NO.92 with the "site plan" effectively allowed the Developer to proceed with the resubdivision and subseguent,ly build without the need for further "variances" or "conditional use per- mits". If the Council determines that the Developer can proceed, the Building Department of the City will not be able to enforce the. Zoning Ordinance With respect.to set backs and floor area ratio in the Buffalo Head T-own House's subdivision. Neither decision by the Council frees the City from possible civil lia- bility for its action. The Developer, if the decision runs contrary to his interest, may sue - claiming his reliance on prior commitments made by the City. If the Council allows the Developer to proceed, the -residents of neigh- boring subdivisions may sue, claiming that the failure of the city to literally enforce its Zoning Ordinance, has led to a reduction in their property values. Either decision of the Council will be defended. However, it is impera- tive that the Council makes its decision clear and concise in order that the various departments in the City be given proper direction. Without a -determination of the Council on the issues, no city officer and/or employee will be in a position to determine City policy. ms G. N. _4_ Councilman Vidal asked what would be the policy if a subdivision.is approved, then the zoning adopted before it is fully developed. City Attorney Neier stated that the Developer has expended time and funds, is grand fathered in and the commitment of the City is valid. Councilman Saverud stated that he cannot remember the 1978 decision to approve but the"Council must have acted in good faith and asked what we are changing.' Dean Jellison, Attorney for Mr. Pine, explained that the concept of townhouse con- struction is that a lot size is the foundation size. Surveying people say you cannot do a preliminary plat before building., You deed the building after it is built and both the building and the land belong to the owner. The subdivision regulations adopted by the County and City do not deal with this. ,The covenants on file state the number of units to be built. To make a townhouse concept work, you put them in clusters. Then a final plat is designed, showing each one. At first there was no problem, now you are saying we are creating a new subdivision. That interpretation is inconsistent with the law. He has checked in Helena] where they say you build, then prepare the final plat. We are asking that the pr;liminary plat be approved now and then do a_final plat. Mr..Pine.explained that Jiri Mohn, the City Ata orney, and Council reviewed and ap- proved'eVerything-in 1978.. Even though there/no .setbacks, there has. always been a common area ybu will;not find in regular housing. There are two acres of public roads,.five.acres'for a,park, three acres for a church site, four and a half to five acres of common area and three and a half to four acres fors the planned housing. The language in Resolution.#3201 is exactly as the CCPB and Annexation Committee desired and it was adopted by the Council. No setbacks were required and former City Attorney Donahue agreed. $300,000 has been spent in improvements, two townhouses have been built and look nice. Because of the common area, you are asking for double setbacks. 138. Councilman O'Boyle stated that Mr. Pine -should go to the BOA and ask for a vari- ance. At the time of the first approval the c6ncern was from Park View Terrace residents about height. Councilman Saverud stated that if this is purposely constructed to not conform with the new zoning then it is an adtinistfative. or judicial,.but not a legislative de- cision. City Attorney Neier repeated that the Council can decide if it is strictly a power of the BOA. It is not an administrative decision. The.Council should make a policy so there is something to follow. Building Official Petersen has to know if Lots l and 10 meet subdivision requirements. Councilman Ruiz spoke against the resolution because this plan is different than the first. City Attorney Neier stated that you can accept, reject or accept with conditions. Then the Developer can either get a variance or comply. Attorney Jellison stated that they could Z.ive with setbacks, but they would then be building condominiums or apartment houses and their intention was to keep'the build- ings low. They started with the concept that they could go ahead and tried to work with the County and City. City -County Planning Board Director Verma said this would.make it easy. They have paid twice and still sitting here. :? He stated that they have three ways to go: 1) go with the setback and go higher; 2) absorb more time and expense with the BOA; or 3) go to court. Councilman Grainger stated that he thought the original RA-1 zoning is contradictory to the resolution. language. Mr. Pine stated that there had to be a zone and this was the closest one that would fit the situation. Councilman Palmer asked if it would be agreeable to vote. -.on the preliminary plat and delete the waivers. Mr. Pine stated that he would preferto table the request until the next meeting so that the Council members would have more time to study. Councilman Nystul moved to table the motion to adopt a resolution for further study. Seconded by Councilman Ruiz. Motion carried. 9:15 P. M. Meeting recessed. 9:27 P. M. Meeting reconvened. ADDRESSING THE COUNCIL Mayor McDowell made three calls for anyone wishing to address the Council. No one responded.,, COMMITTEE REPORTS FINANCE Councilman Nystul reported that the Finance Committee met.and with power to act awarded the bid for gasoline and diesel fuel through June 30, 1984 to City Service. Councilman Nystul reported a request from ..Terry Bugg to abate the Special Assess- ments on South Meadows Addition fot the years 1979 and 1980. Councilman Nystul moved that the City;Clerk inform the County Treasurer that the City Council has abated the Special Assessments for 1979 and 1980 on South Meadows Addi- tion. Seconded by Councilman Ruiz. Motion carried.' EMPLOYMENT Councilman Zauner had no report. ANNEXATION RESOLUTION #3501 Councilman Palmer moved to adopt Resolution #350.1 a resolution of intention to annex certain streets. Seconded by Councilman Nystul: There are streets that were one-half within the City and one-half in the County. -Surveyor Zavodny has worked on the property description of some of these streets .and received_ a quitclaim deed from the County so that they now=,fully belMg to _-� - dit . but not' annexed. Roll call vote. All voted aye. RESOLUTION #3502 Councilman Palmer moved to adopt Resolution #3502 a resolution of intention to annex wholly surrounded land. Seconded by'Councilman Nystul. This is an area adjacent on the west to the Junior High School and completely surrounded'by City area. Roll call vote. All voted aye. 139. BAKER PLAT REVIEW 1 1 1 Councilman Palmer moved to approve the amended boundary within the Baker plat sub- ject to.review by City Attorney Neier. Seconded by Councilman O'Boyle. This involves a property owner whose garage sets 3' on another property and wants it corrected. Motion carried. Councilman Palmer moved that the Annexation Committee be authorized to draft and present an ordinance for adopting a Planned Unit Development (PUD). Seconded by Councilman Grainger. Councilman Vidal voted nay. All others voted aye. Motion carried. Councilman Palmer set an Annexation Committee meeting for 4:00 P.M. Tuesday, November 1, to discuss PUD and Buffalo Head. STREET & ALLEY Councilman O'Boyle stated that the Bethel Baptist Church, at 4th Avenue West and loth Street, has requested a restricted parking or loading zone on 4th Avenue West for senior citizens and bus loading and unloading. It would be restricted to Sunday mornings. It is about 60 feet in length and between two driveways to their parking in back of the church. After discussion it was decided that the church and Police Chief Stefanic should work out a plan for temporary signs that the church could place and remove and try for six months. Councilman O'Boyle reported a request from Flathead Industries for the Handicapped for an easement for placement of a phone line. The area is excavated at this time and would be less expensive to place the line now than.later. Councilman Nystul moved that Mayor McDowell be authorized to sign an easement for the phone line. Seconded by Councilman O'Boyle. Motion carried. PARKS Councilman Vidal asked the audience, Council and mddia to assist with publicity for the pool bond issue. 40% of the registered voters must turn out and this will require cooperation from everyone. COMMUNITY DEVELOPMENT Councilman Saverud reported that the City has just received word from the .State Department of Commerce that we have been successful in obtaining a 1.5 million dollar grant over the, -next 3 years. The Elrod Project and commercial redevelopment projects will continue and in addition, there will be assistance for.the Flathead Industries for the -Handicapped to.start a plastic molding injection plant. Thirty-five entities applied for grants, 15 were successful. Applications.wexe graded on -accumulated points. Kalispell received the highest number of points. Councilman Saverud thanked Director Gallagher for the fine work he and his staff has done.: SAFETY Councilman Grainger reported that the Safety Committee met on Friday,=October 7th, and with power to act, awarded the bid for two police cars to Roy Stanley Chevrolet. Councilman Grainger -shoved that Fire Chief Doty be authorized to .call for bids for two fire -department vehicles, a station wagon and a pickup. Seconded by Councilman. Palmer. The rationale for the station wagon is that whenseveral firemen go for school- ing, only one vehicle will be needed. Motion carried. SEWER & WATER Councilman Ruiz announced a Sewer and Water Committee meeting for 4:00 P.M. on Monday, October-24th. MISCELLANEOUS Councilman Zauner moved to confirm the Mayor's appointment of Helen:Smith to the Board of Adjustment to replace Marian O'Neil, who has resigned. Seconded by Councilman Palmer. Motion carried. 140. Mayor McDowell asked if the Finance Committee is contemplating a sewer audit in the near future so that we will comply with Ordinance #859, which states we must have a sewer audit annually within 120 days after the close of the fiscal year. Council- man Nystul stated that in the past we have done an annual sewer audit but the bonding company has agreed to a standard audit every two years. Councilman Grainger moved to adjourn. Seconded by Councilman Palmer. Motion carried. Meeting adjourned at 10:10 P.M. Approved as presented November 7, 1983. ATTEST: MarjorGiermann; City Clerk -Treasurer u:: l� �*04911011 r! 2:00 P. M. OCTOBER 18, 1983 MAYOR'S OFFICE CITY RADL Present were Mayor McDowell, Police Chief Stefanic and City Attorney Neier. Councilmen Zauner and Grainger -absent.. Request is for a gaming license for the Log Cabin Bar. The existing license was issued in the name. of Royalene.Wilkerson, former manager of the bar. The Eagles Investors Corporation now own The .Log Cabin Bar and adjacent Kalispell Bar and the two have a connecting door. Donald and Janis Singers, two members of the corporation were present. The transfer fee has been paid. Stephen Cooney, third memberof the corporation was out of town and unable to return, in time for the meeting. Mayor McDowell questioned the Kalispell Bar sign being up when the place is known as The Log Cabin. Chief Stefanic stated that they should not be conducting gambling in both places even though they are connected. City Attorney Neier stated that the signs indicate two bars. Chief Stefanic stated he had some questions to ask Mr. Cooney. Members of the gambling Committee decided to continue the hearing at a later date to enable Mr. Cooney and the other members of the committee to be present. Mayor McDowell told them to go ahead with business as usual and to let him know when Mr. Cooney returns so that a date can be set to continue this hearing. Meeting adjourned at 2:20 P. M.