07/02/84 City Council Minutes215.
THE REGULAR MEETING OF THE KALISPELL CITY COUNCIL WAS HELD AT 7:30 P.M. MONDAY, JULY 2,
1984 IN THE COUNCIL CHAMBERS AT CITY HALL. MAYOR MCDOWELL PRESIDED. COUNCILMEN SAVERUD
AND MANNING ABSENT. ALL OTHER COUNCILMEN WERE PRESENT.
APPROVE MINUTES
Councilman Grainger moved that the minutes of the regular meeting of June_ 18, 1984 be
approved as presented. Seconded by Councilman Nystul. Motion carried.
ADDRESSING THE COUNCIL
Howard A. Hurst, 340 W. Wyoming, addressed the Council regarding the proposed 5 year
street reconstruction program. Mr. Hurst commended the Council on the program, but
stated he had some concerns relating to how quickly the street department can complete.
It took 6 months to do two blocks on 5th Avenue W.N:.' and 60 days to do 200' on Sunny -
view Lane. At this rate, the program will not be completed. Mr. Hurst stated he
thought we have had poor management and under -financing. He cited the size and age of
our street equipment as being antiquated because of lack of management by past admin-
istrations. He asked that the City contract out the work so that a job is bonded,
penalized if not completed, and work done as specified.
Councilman Palmer, Chairman of Street & Alley Committee, replied that he agreed with
him 100%, and plans are to contract out a portion of the work and compare with City
cost.
Mr. Hurst was thanked for his interest in the street program.
Norbert Donahue, citizen, addressed the Council concerning the Flathead County Criminal
Justice Center. The 312 million dollar bond issue was defeated in the June election be-
cause 40% voter turnout requirement was not met and the issue itself defeated by about
2%. Because one Flathead County Commissioner would not agree to placing it on the
November ballot, it is necessary to obtain the authorized signature of 20% of the
registered voters, or about 6,600 signatures, to present it again. The Commissioners
have cut the bond issue. to 2 million dollars and will build the shell and complete it
on a pay-as-you-go basis. Mr. Donahue asked the -City Council to support the petition
effort.
Councilman Nystul moved that the City Council support the petition. Seconded by Council-
man Ruiz. Motion carried.
Mr. Gilchrest, Developer of Blue Chip Addition 4161, asked for a postponement on the
final reading of the ordinance for annexation. Council referred the annexation back to
committee.
Lana Koenig, 438 3rd Avenue East, addressed the Council concerning the proposed mental
health home, which would be located at 501 Third Avenue East. Mrs. Koenig asked that
the City of Kalispell appeal the decision of the District Court to allow the home.
City Attorney Neier gave the following background on the case - The Western Montana
Regional Mental Health Center agreed to purchase a home at 501 3rd Avenue East for the
purpose of establishing a community residential facility under our zoning ordinance,
Section 3.02 and which is also authorized by state law. In this particular area, the
zoning ordinance makes a group home a conditional use.
On May 29th, the Board of Adjustment met to consider the request for a conditional use
permit and after hearing proponents and opponents, denied the request. The Center
appealed the decision to the District Court and on June 27th, Judge Keedy overruled the
decision of the BOA. Attorney Randy Ogle represented the Center and City Attorney
Neier represented the City. Both presented briefs and short arguments. Judge Keedy's
decision was based on: 1) the BOA did not consider specific adverse effects, and 2)
did not document findings of fact as required by City ordinance. He then overturned
the decision of the BOA and granted a Conditional Use Permit, subject to the general
conditions set forth by the City Building Official, Fire Marshall and County Sanitarian.
The BOA met immediately thereafter and voted 4 to 1 to appeal Judge Keedy's ruling to
the Supreme;.Court. City Attorney Neier stated that he feels the appeal would have
only a 50-50 chance because this type of home is allowed by City ordinance and by
State.law in residential areas. A similiar case, Thelan vs The City of Missoula, has
already been heard -'in the Supreme Court and found in favor of the plaintiff.
Neier stated.he had researched every case he could find, one in the state and several
out of state, and believes the City would lose more than it would gain. The place has
been used as a single family dwelling but it is large enough, has the required parking
space, fits their needs, BOA did not record any findings of fact, Judge Keedy found no' -
substantial evidence against the use, and for these reasons, would recommend that the
BOA not appeal. The Council has the final say as to the appeal?to.ihe Supreme Court.
If the Council votes to appeal, I will do so, if not, I will inform the BOA and my
office will not be handling an appeal.
Councilman Springer asked if there were funds for the BOA to hire an attorney and was
told there was not. Councilman Springer asked how much it would cost to appeal. Neier
estimated 3 to 4 thousand dollars. Springer stated that these people have been dis-
criminated against for`so .long that the legislature has taken these steps to help them,:'
216.
Councilman Grainger asked how many group homes are on the East si.dd. Attorney Ogle
replied that there are three and if these people are denied, you are not treating them
the same.
Grainger stated that these homes seem to be concentrating in one area on the East side
until they feel totally boxed in with them. Grainger also stated that we have the BOA
and they try to do a good job and even if we do not know whether their decisions are
right, should we not back them?
Councilman Ruiz stated that if evidence is not documented properly, then we have to stand
on what has happened. You can not rule emotionally.
Councilman Schindler stated he had sat through the 5 hours of the BOA meeting and felt
there were specific adverse effects brought out if the court would read it all. Be also
agreed we must support our boards. He felt that it was not because of.the mental
health program, but rather parking and traffic problems.
Councilman Springer stated he would go on record as not supporting the request for an
appeal.
Councilman Schindler stated he would go on record as supporting the BOA appeal.
Frances Mad.ler stated that there is only one .lot and she shares the garage with this
home. She stated that she is not willing to share the garage with the proposed home.
Councilman Palmer stated that he has met with his constituents in Ward 4 about problems
with the group home on 8th Avenue East. People have paid premium prices for R-1 prop-
erty, but he has found that it is the state law that these homes be allowed and the
people just have to .live with it. He stated that the problems are not with the persons
in the home, but rather, traffic and other problems.
Harry Taylor, BOA Chairman, stated that he had chaired the 5 hour meeting and also the
meeting last Fridaywhen it was decided to apLbea.l. He stated that he was not sure that
City Attorney Neier is in sympathy with the Board. He stated that most of the meeting
dealt with devaluation of property in the immediate area. He stated that members of
the BOA serve without pay and try to make the right decisions and the Council and City
Attorney should back a 4-to-l.decision.
Pat Hensler, 405 3rd Avenue East, stated that she knows of one home that did not mater-
ialize because of this matter.
Mr. Taylor stated that the Board did not make a discriminatory decision. The Board
wants these people to have a home and would try to help them in any way possible.
Attorney Ogle stated that it was a fair hearing. The Board did not adopt proper
finds -of -fact as required .by ordinance and advised by the City Attorney and for this
reason, he would ask the Council to 1) consider very seriously the 3 or 4 thousand
dollars --nothing from tonight will be a part of the record, and 2) remember that Judge
Keedy gave you the permit with conditions, whereas the Supreme Court will not give you
any conditions and may declare a pdrtion"=of your zoning ordinance unconstitutional.
Mr. Taylor stated that this was just a matter of opinion. We have strikes against us,
but so do they. There are no cases in Montana to compare. Mr. Ogle reminded him that
there is the Thelan vs City:_.of Missoula case.
Mayor McDowell stated that the Council would .hear briefly from the area residents and
then the Council could state their views.
Karen Barbee, 414 4th Avenue East, stated that Cobrthouse East already makes a lot of
extra traffic in the area.
Elizabeth Paul, 419 4th Avenue East, discussed the traffic hazard in the area, which
she feels would worsen. She lamented the fact that she has lived there many years, paid
her taxes and now has no one to represent her
Bill Harris, Director of Western Montana Regional Mental Health Center, stated that in
1983 they started looking for a:Anew home. Their present home is too small. The state
allows 8 residents in a home. They began a search, found a place in August, and were
turned down by the BOA. This is our last straw - if we do not succeed with this place
we will not have a program. The program has made so many advances and it has worked
so well to place these people in communities that many of them are now living and
working independently.
Councilman Ruiz asked if this wast:hhe.'o&x.Jy community to have a home like.this. The
answer was that there are two in Missoula and one in Stevensville. Thb-staff resides
in Kalispell and serves the County.
Roger Wendt, 411 3rd Avenue East, stated that he feels this is reverse discrimination.
If they are serving the entire county, put the homes in other places. If you do not try
the appeal, we know we have .lost. If you are not going to support the BOA, do away
with it.
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Donna Wendt, 411 3rd Avenue East, stated that after all these years of paying taxes,
there is more sympathy toward prisoners than toward them.
Attorney Ast.le stated that it is not philosophical to say you cannot appeal because
there is no .money. You should proceed with their money in the name of the City. Allow
the process - support the BOA.
Tip Hayes, 435 4th Avenue East,, asked that the City appeal, and if it is turned down,
then take it from there.
Tom Ezell, 336 3rd Avenue East, stated that he does not believe in discrimination,
but would not want Hinkley living in his back yard.
Mr. Taylor stated that the Council should see from:-all--th.e.comments that there are
An overwhelming number of people whose life savings will be depreciated. We want
this to be a landmark case so we may have something to go by for Montana. Would
hope that City Attorney Neier would have time to prepare the appeal.
Norb Donahue stated that this type of home cannot be zoned out. Two types of use -
permitted with no restrictions or conditional use. The BOA has gone beyond the zoning
ordinance with their ruling.
Councilman Schindler asked if the Supreme Court would look at this as an individual
case or just go by their decision on the Thelan case.
Neier stated he has a notice of appeal ready to go if the Council so directs.
Councilman Schindler stated that taxpayers money is used for appeal after appeal for
murderers and we owe it to our taxpayers to go through with this appeal.
Councilman Palmer suggested that the Mental Health Department go on a 5 year basis -
stay 5 years, and then move so that an area does not get saturated with this type of
home.
Their answer was that they have been renting, they now have purchased and want to stay
on a permanent basis. Palmer stated that there are many areas in thb�,City which would
be suitable and not hurt anyone and they should be looking in these areas.
Mr. George suggested-that�_the Council has confused their program with the Flathead
Industries program,;:;whichr:does.have.several home within the City. Their program has
only one home in Kalispell. All the neighbors at their present home have testified
that there are no problems.
Councilman Nystul stated that he concurs with the neighbors that"the community housing
facility does cause an adverse impact, but, we employ competent legal counsel and that
is why we employ competent department heads so that we get competent advice and he
would hope that the record could be corrected so that the conclusions and findings of
fact could be entered into the record so that a more reasonable appeal could be made.
Councilman Ruiz asked the directok. how'they are.=funded. Answer was that they are a
non-profit organization and the majority of their funds come through a contract that
they have with the State of Montana. Secondly, they receive fees which they charge
for their services and thirdly, they receive a small amount of funds from the seven
participating counties. Ruiz asked if they had a budgeted amount for attorney fees.
Answer was that they do. Councilman Ruiz asked what it would do to their budget if
this is appealed. Answer was that it challenges it severely.
Councilman Ruiz stated that the other point he would .like to make is that people are
buying property and there is a difference between R1 and R5 and somewhere there is a
responsibility to tell them, but'it is not the City's duty to watchdog real estate
purchases. No one has any guaranty that something is not going to happen within the
area you live will decrease the value and by the same:,token, it might increase. The
thing that bothers the most is that the BOA made a mistake in denying this and it is
a serious mistake because it is a procedural mistake and I cannot see the Council
compounding this mistake by making another one. At the same time, the residdnts of
the City never seem to have anyone advocating their support. The Mental Health
people have funds for counsel which comes from taxpayers. On that basis alone,
although I am 90% sure we will lose this, I think these people are entitled to some-
thing. They have paid taxes for the last 25 or 30 years and have never needed fire
or police service and surely have not been given too much in the line of streets so
they are entitled to some consideration. Even if they .lose, there is a certain amount
of satisfaction that these people will derive from the fact that some attention has
been brought tb-their predicament and possibly down the road the Supreme Court will
.look at more and more of these and will reverse it somewhere along the line. I will
support the people.
Councilman Grainger moved to appeal the decision of the District Court to the Supreme
Court. Seconded by Councilman Schindler. Roll call vote. Councilmen Palmer, Ruiz
Sehihdl6n and Grainger voted aye. Councilmen Springer and Nystul voted nay. Motion
carried.
zls.
Meeting recessed at 9:20 P.M.
Meeting reconvened at 9:30 P.M.
John Burton, Flathead County Librarian, addressed the Council concerning funding from
the City for the .library. He stated that the Library Board met with the Finance Com-
mittee, exchanged perceptions and talked of problems. On a positive note, they were
asked to submit specifics and use tax increment funds. Also, they talked of the
possibility of a special city library .levy of 1.5 mills to be put before the voters.
Mr. Burton stated that the Board is requesting the City Council to pass a resolution
to put on the ballot or tell them how to proceed to petition to place on ballot.
Mayor McDowell asked how much the County would be giving. There is a 4.4 mill
countywide assessment. Their budget.is $474,000.00, but of course, this is not
approved until August.
Councilman Ruiz told him that the committee could not recommend any extra mill
levy on Kalispell residents. They already pay the CDunty's .levy and this would
be an additional tax on city property owners. Since the City operates under the
65 All -Purpose General Fund mill levy, it would,be illegal to add anything for the
:library. The City gave the present library building to School District #5, who
share it with the :library. The only thing the committee would consider is some
specific project that could be covered by tax increment.
Burton said he wou.ld:submit a .list of priorities. Ruiz said they would consider.
Burton concluded by saying he would have City Attorney Neier and the County Attorney
determine if it is legal to submit a mill .levy to the voters.
STREET & ALLEY
Councilman Palmer announced that the committee, with power to act, awarded the bid `
for gasoline and diesel fuel to City Service, Inc.
Councilman Palmer announded that the committee, with power to act, awarded the bid
for aggregate to McElroy & Wilken, Inc.
Councilman Palmer moved that DPW Hammer be authorized to call for bids for a sidearm
loader for garbage pickup, subject to refusal with good reason. Seconded by Council-
man Schindler.
Councilman Nystul moved to -:amend the motion to add "and associated containers".
Seconded by Councilman Springer. Motion on amendment carried. Motion carried.
jay
RESOLUTION 435-16
Councilman Palmer moved to adopt Resolution #35; a resolution ordering curbing and
sidewalks in the following areas: Curbing and Gutters -- Block 71, Lots 6 and 7;
Block 90, Lot, 12; Block 145, Lots 12 and 13:::.B.1ock 216, Lot 8A; Block 151, Lots
4 throu7h,6; Block 152, Lots 9 through 12; Block 235, Lot 12; Block 9, Lot 9 and
Block 12, Lot 12; Tracts 8V, 8AB, 8PB, BACB, BAQ, 8AQAA, 8AQA, 8AHD, 8-21C.-•
Sidewalks - Block 71, Lots 5 and 6; Block 90, Lots 11 and 12; Block 143, Lot 12.
Seconded by Councilman Nystul. Motion carried.
Councilman Palmer announced that the Eagles ParXsng Lot rate has been raised to 25�
per hour,.
SAFETY
Councilman Schindler had no report.
PARKS
Councilman Springer had no report.
EMPLOYMENT
Councilman Grainger had no report.
FINANCE
Councilman Ruiz moved approval of June claims. Seconded by Councilman Grainger.
Motion carried.
SPECIAL MEETING
Councilman Ruiz stated that either deliberately or inadvertently, he was not made aware
of the Special Meeting held at 2:00 P. M. Monday, ,Tune 25th. He was in town on Friday
and could have been given the notice. He purposely chose his time to be out of town
so that he would not be absent at any council meeting. At this meeting, the tax in-
crement pledge was doubled. These special meetings are called for special interests.
There were only 5 council people here and:'the vote was 4 to 1. If it had been held
with 8 people, it could have been a tie vote. Why do we suddenly have to conduct
219.
special meetings? You are disenfranchising me from my duty. Councilman Ruiz stated
that he objected to any more special meetings, which are mostly about the mall. He
stated he has not seen any site plans and we are digging deeper and deeper. We lose
all leverage and get to the place where we cannot say no.
.Councilman Grainger stated that he signed the notice on Friday. Mayor McDowell stated
that_he thought Councilman Ruiz was out of town on Friday and the question had to be
answered. Councilman Ruiz asked why we are continually operating under other's time
frame.
Councilman Grainger explained that there will be no funds expended without Council
approval. Councilman Ruiz stated that if he does not get to see the bills, there
will be no checks. Ruiz asked why are the grants not spent before City money.
Councilman Ruiz announced a preliminary budget meeting at 1:00 P. M. Thursday,.July
5th. All Council members are welcome.
SEWER & WATER
Councilman Nystul moved that Mayor McDowell be authorized to sign the Developer
Extension Agreement between the City and LMJ Enterprises for extended sewer and
water mains for Grandview Townhouses. Seconded by Councilman Ruiz. Councilman
Palmer abstained. Motion carried.
Councilman Nystul moved that Mayor McDowell be authorized to sign a contract for
engineering services with Thomas, Dean & Hoskins for a storm dtain study. Seconded
by Councilman Springer. Motion carried.
Councilman Nystul explained that a request of Bob Monk for water and sewer service
to his property south of the airport will mean that of the 2350' involved, 1600' of
the water .line will be on city property and 1800' of the sewer line is on city pro-
perty.
Councilman Nystul moved that the City participate in a D,eveloper',s Agreement.
Seconded.by Councilman Springer. A written
agreement will be referred to committee regarding financing. Motion carried.
Councilman Ny.stul reported that a draft of Volume II on the 201 Study for Evergreen
Sewer Study is ready.
ANNEXATION
After review and inspection, Councilman Palmer moved Council approval of the final
plat for Heritage Health Annexation #161. Seconded by Councilman Nystul. Motion
carried.
Councilman Nystul moved that Meridian Addition Zoning be referred to the City Zoning
Committee. Seconded by Councilman Springer. Motion carried.
EXTRA -TERRITORIAL BUILDING PERMITS
Attorney William Astle addressed the Council with an expression of appreciation for
all the time given to procedural change for building permits outside the city limits
but within our jurisdiction. Building Official Petersen has been unable to issue
some building permits because the area is either unzoned, non -conforming or some-
times there are other problems. Flathead County has been reluctant to zonerthis
area and the City gets caught in the middle.
RESOLUTION V V
. 5"A 3.3"2 6_1_�
Councilman Palmer moved to adopt Resolution # a resolution to clarify the City
of Ka.lispell's Extra -Territorial Building Permit Procedures, by requiring the City
Building Official to review Extra -Territorial Building Permit Application for com-
pliance only with the uniform Building Code, 1982, as adopted by the City of Kalispell;
and directing that the Building Official submit written requests to County Officials
for determination of compliance with Sanitary Regulations, Flood Plain Regulations
and the Comprehensive Plan, and declaring an effective date. Seconded by Councilman
Nystul.
The following changes were made: Section II. ten day period was changed to 10 work-
ing day period; add to the last sentence "shall forthwith issue the building permit,
unless a request for extension is received from County Officials". Section IV. de-
lete the last sentence "or repeal the County Zoning Regulations applicable within
the Kalispell Planning Area thereby allowing the City of Kalispell, to extend its
zoning jurisdiction under applicable Montana law outside the corporate boupdaries
of the City of Kalispell". Section V - first sentence - delete "or abrogate County
Zoning Regulations with the Kalispell Planning Area" and the last sentence - delete
"or City".
220.
Question called. Roll Cali vote. Councilman Schindler voted nay. All others voted
aye. Resolution adopted.
MISCELLANEOUS
There will be a brief meeting of the Employment Committee following this session.
Mayor McDowell reported that the auction on June 16th netted $10,908.00.
Councilman Grainger moved to adjourn at 11:05 P. M. Seconded by Councilman
Springer. Motion carried.
Approved as corrected July 16, 1984.
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ATTEST:
Marjorie ermann, City Clerk -Treasurer
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