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07/06/04 City Council MinutesA REGULAR MEETING OF THE KALISPELL CITY COUNCIL WAS HELD AT 7:00 P.M., TUESDAY, JULY 6, 2004, IN THE COUNCIL CHAMBERS AT CITY HALL IN KALISPELL, MONTANA. MAYOR PAMELA B. KENNEDY PRESIDED. COUNCIL MEMBERS JIM ATKINSON, BOB HAFFERMAN, BOB HERRON, RANDY KENYON, HANK OLSON AND JAYSON PETERS WERE PRESENT. COUNCIL MEMBERS KARI GABRIEL AND DUANE LARSON WERE ABSENT. Also present: City Manager Chris Kukulski, City Attorney Charles Harball, City Clerk Theresa White, Finance Director Amy Robertson, Fire Chief Randy Brodehl, Parks and Recreation Director Mike Baker, Police Chief Frank Garner, Public Works Director Jim Hansz, and Tri-City Senior Planner Narda Wilson. Mayor Kennedy called the meeting to order and led the Pledge of Allegiance. A. AGENDA APPROVAL Herron moved approval of the Agenda with the removal of Agenda Item E/17, Ordinance 1506, Salary Schedule. The motion was seconded. There was no discussion. The motion carried unanimously upon vote. B. CONSENT AGENDA APPROVAL 1. Council Minutes — Regular Meeting — June 21 2004 2. Council Minutes —Special Meeting — June 28 2004 NIPO, LLC is requesting a zoning designation of B-2, General Business, for approximately 9.33 acres of property located between Highway 93 South and Willow Glen Drive, north of Lower Valley Road. Ordinance 1501 passed on first reading June 21 st. 4. Airport Han ar Design Standards The Airport Advisory Board is requesting the Council adopt hangar construction and design standards for the City Airport. 5. Kalispell City Planning Board Work Program for Fiscal Year 2004-2005 Each year the City Planning Board recommends that the Council approve a list of work program projects for the upcoming fiscal year. Peters moved approval of the Consent Agenda. The motion was seconded. Hafferman moved to remove Consent Agenda Item #3, Ordinance 1501, from the Consent Agenda and place it on the main Agenda as item E/17. The motion was seconded. The amendment carried upon vote with Atkinson voting against. The main motion as amended carried unanimously upon roll call vote. Kalispell City Council Minutes July 6, 2004 Page 1 C. STUDENT ISSUES None. D. PUBLIC COMMENT Richard DeJana, attorney for KRDS and J&F Construction, read a letter concerning the Final Plat for Northview Heights Phase 2. (Letter is attached and by this reference is made a part of the official record. Exhibits are on record and on file in the office of the City Clerk) Michael Fraser, TD&H, Northview Heights Engineer, said Northview Heights was designed as a stand-alone subdivision for Phase 1, a stand-alone subdivision for Phase 2 and also for Phase 3. He said that allowed for each phase to meet design and subdivision standards in case something happened in the future. Fraser said tonight, the Council is being asked to approve the final plat for Phase 2 only, without imposing the conditions of Phase 3 requiring the completion of North Riding Road. Frank Stricklin, 272 Stillwater Road, stated he's one of the developers on Northview and to have the Council add a requirement for Phase 2 approval that should be included in Phase 3 is "absolutely absurd". He said since the creation of Northview, the Council has approved two other subdivisions in the vicinity and if they need North Riding Road completed they should be finishing it themselves. Susie Burch, 835 1st Avenue East, asked the Council to approve a request for a conditional use permit to build a small cottage in her backyard for her parents. Erica Wirtala, Sand Surveying, said she's available to answer any questions concerning the annexation and zoning for Tim and Kay Knoll, and the final plat for Ashley Park Phase 7. Russell Purdy, 241 Commons Way, said he's here on behalf of Bowser Creek Subdivision and three changes made at the planning board meeting. He said he is protesting the addition of a 60-foot easement, the reconfiguration of lots along the south border to all single family rather than townhouses, and the condition requiring a ten foot setback rather than the requested five feet in that area. Debbie Willis, 400 Marco Bay Road, requested approval of Willis Addition #3 stating this is a minor subdivision with only four lots. She noted the approach is being moved to across from Denver Avenue which she feels is a safer access. Dave Hofstad, 2845 Farm to Market Road, spoke in support of the preliminary plat for Stratford Village Phase 4. He said it's not right for the Council to now suggest mitigation of traffic impacts on Sunnyside Drive when the entire subdivision plat has already been approved. Hofstad said this subdivision has had a minimal amount of impact compared to the South Meadows Subdivision. E. REPORTS/RECOMMENDATIONS AND SUBSEOUENT COUNCIL ACTION E/I. RESOLUTION 4896 —PRELIMINARY PLAT— STRATFORD VILLAGE PHASE 4 aARLEDjAINEIM This is a request for preliminary plat approval of Stratford Village Phase 4, a 23-lot residential subdivision on approximately 3 acres in southwest Kalispell at the west end of Bluestone Drive. Kalispell City Council Minutes July 6, 2004 Page 2 Resolution 4896 was tabled June 7th because of concerns about potential additional impacts to area roads. Kenyon moved to remove Resolution 4896 (a resolution conditionally approving the preliminary plat of Stratford Village Phase 4, more particularly described as a portion of Assessor's Tract 6L located in Section 19, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana) from the table. The motion was seconded. The motion carried unanimously upon vote. Wilson explained the Council held a work session on June 28th to discuss potential financing options for upgrading impacted roads from subdivisions. She said there seemed to be a general consensus among council members for the staff to work with the Council, County Commissioners, and the local legislators to discuss different options. In the meantime, however, several subdivisions are corning before the Council that will impact roads and the only thing she can do is refer the Council to the original recommendations as provided by the Planning Board. Hafferman said the motion that passed on July 7th was that this project should be tabled until the developer addresses mitigation of the impacts on Sunnyside Drive. He said at the June 28th there was no discussion about Sunnyside Drive; the Council discussed revisions to the extension of services plan which requires developers to mitigate impacts on existing streets as a condition of approval. Hafferman said the City has to "start addressing the impacts on the roads, not how to fund it", and had the Council addressed the impacts with each project the City would be getting somewhere. Peters said he attended the June 28th work session and wonders what Hafferman would like the developer to do. He said funding mechanisms were discussed, but not exactly what the Council wants the developers to do to mitigate the impacts. Peters agreed with Hafferman that something has to be done, but until a decision is made he doesn't like changing something in the middle of a project. Hafferman said the general discussion is that "we have a problem on Sunnyside Drive" and until the Council addresses Sunnyside Drive directly, he can't vote for any more development that will put more vehicles on that road. Kukulski pointed out that Stratford Village Phase 4 is not contiguous to Sunnyside Drive and the Council shouldn't be holding up this subdivision over traffic concerns on Sunnyside. He said the Council needs to approve this phase and continue its discussion on financing methods for City roads. Olson agreed the Council can't stop this subdivision at this stage Mayor Kennedy stated Sunnyside Drive is an issue and the Council will continue to look at solutions for this road, however, she agreed it wouldn't be right to deny the subdivision at this time. Kenyon commented he's torn on the issue because he also feels the Council needs to start doing something about the roads and maybe denying subdivisions is a place to start. He added, however, that because this subdivision isn't contiguous to Sunnyside Drive he will vote in favor of the resolution. Kalispell City Council Minutes July 6, 2004 Page 3 The motion carried upon roll call vote with Atkinson, Herron, Kenyon, Olson, Peters and Mayor Kennedy voting in favor, and Hafferman voting against. E/2. RESOLUTION 4903 — ANNEXATION — LES & BARBARA PRICE Les and Barbara Price are requesting annexation of approximately .446 of an acre located on the west side of Meridian Road, south of Center Street. Kenyon moved Resolution 4903, a resolution to provide for the alteration of the boundaries of the City of Kalispell by including therein, as an annexation, certain real property, as more particularly described on Exhibit "A", located in Section 13, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, to be known as Price Addition No. 348; to zone said property in accordance with the Kalispell Zoning Ordinance, and to declare an effective date. The motion was seconded. Wilson gave a staff report and answered questions. The motion carried unanimously upon roll call vote. E/3. ORDINANCE 1502 — INITIAL ZONING — LES & BARBARA PRICE — 1ST READING The Prices are requesting an initial zoning designation of B-1, Neighborhood Buffer District, upon annexation of the above listed property which is currently zoned County R-5, Two Family Residential. Olson moved first reading of Ordinance 1502, an ordinance to amend Section 27.02.010, Official Zoning Map, City of Kalispell Zoning Ordinance, (Ordinance No. 1460), by zoning certain real property described as Lot lA Hollister's Meridian Tracts in Section 13, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana (previously zoned County R-5, Two Family Residential) to City B-1 (Neighborhood Buffer Zone), in accordance with the Kalispell Growth Policy 2020, and to provide an effective date. The motion was seconded. There was no discussion. The motion carried unanimously upon roll call vote. E/4. RESOLUTION 4904 — ANNEXATION — TIM & KAY KNOLL Tim and Kay Knoll are requesting annexation of approximately 1 acre located on the cast side of Denver Avenue north of Bluestone. Kenyon moved Resolution 4904, a resolution to provide for the alteration of the boundaries of the City of Kalispell by including therein, as an annexation, certain real property, as more particularly described on Exhibit "A", located in Section 19, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana, to be known as Knoll Addition No. 349; to zone said property in accordance with the Kalispell Zoning Ordinance, and to declare an effective date. The motion was seconded. Kalispell City Council Minutes July 6, 2004 Page Wilson explained the annexation of this property was a condition of final plat approval for Ashley Meadows Subdivision. Hafferman noted he will not vote for any additional annexations or projects that will add to the safety problems of Sunnyside Drive until this Council gets serious about addressing the problems and planning a solution. The motion carried upon roll call vote with Atkinson, Herron, Kenyon, Olson, Peters and Mayor Kennedy voting in favor, and Hafferman voting against. E/5. ORDINANCE 1503 —INITIAL ZONING — TIM & KAY KNOLL —1ST READING The Knolls are requesting an initial zoning designation of R-4, Two Family Residential upon annexation of the above listed property which is currently zoned County R-1, Suburban Residential. Atkinson moved first reading of Ordinance 1503, an ordinance to amend Section 27.02.010, Official Zoning Map, City of Kalispell Zoning Ordinance, (Ordinance No. 1460), by zoning certain real property described as Assessor's Tract 7AACAA located in Section 19, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana (previously zoned County R-1, Suburban Residential) to City R-4 (Two Family Residential), in accordance with the Kalispell Growth Policy 2020, and to provide an effective date. The motion was seconded. There was no discussion. The motion carried upon roll call vote with Atkinson, Herron, Kenyon, Olson, Peters and Mayor Kennedy voting in favor, and Hafferman voting against. E/6. RESOLUTION 4905 —ANNEXATION — BOWSER CREEK ESTATES Russell Purdy is requesting annexation of approximately 31 acres located northwest of Kalispell on the southwest corner of Three -Mile Drive and Stillwater Road. Peters moved Resolution 4905, a resolution to provide for the alteration of the boundaries of the City of Kalispell by including therein, as an annexation, certain real property, as more particularly described on Exhibit "A", located in Section 11, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, to be known as Purdy Addition No. 350; to zone said property in accordance with the Kalispell Zoning Ordinance, and to declare an effective date. The motion was seconded. Wilson gave a staff report on the annexation, zoning and preliminary plat requests for Bowser Creek Estates. She explained the subdivision will be developed in three phases with Three Mile Drive lying to the north and providing two accesses to the site. The first access will align with Stillwater Drive with the second access aligning with Blue Crest Drive into Blue Heron Subdivision. Wilson said part of the property does fall within the 100-year floodplain and the developers will have to do a detailed study to determine the exact boundaries of the flood area prior to starting on Phase 2. She noted a Planned Unit Development overlay is proposed, which will give the developer flexibility in lot sizes, housing types and site configuration. Wilson explained the subdivision was redesigned in response to concerns expressed at a previous planning board meeting about the number of townhouses, road crossings and floodplain. The staff recommended approval of the subdivision subject to conditions that include a reconfiguration of the lots along the south border from Kalispell City Council Minutes July 6, 2004 Page 5 townhouses to single family, and a reservation of right-of-way to access the property to the west and avoid an additional access onto Three mile Drive in the future. Kukulski asked the Council, when dealing with the preliminary plat, to consider adding a condition that property owners waive their right to protest the creation of an SID for the purpose of future upgrades to arterials and collector streets that are utilized by the subdivision. He said by doing so, the Council has the option in the future to deal with upgrades. Olson asked why the planning board recommended the 60-foot easement to the west instead of allowing for the 40-foot easement as requested by the applicant. Wilson answered the 40-foot easement would basically create a driveway parallel to Three Mile Drive. She said with the 60 feet to the south, a fully constructed City street could be built to serve the property to the west. Hafferman moved Exhibit A be amended by adding at the end of condition #8: "or other such impacts on Three Mile Drive resulting from this development as determined by the Montana Department of Transportation". The motion was seconded. White stated a point of order explaining Exhibit A for Resolution 4905, which strictly deals with the annexation, is the legal description of the property and does not include any conditions. She said the conditions Hafferman referred to are listed in the zoning ordinance and the resolution approving the preliminary plat. Hafferman withdrew his motion. The second concurred. The motion carried unanimously upon roll call vote. E17. ORDINANCE 1504 — INITIAL ZONING — BOWSER CREEK ESTATES — 1ST READING Russell Purdy is asking for a zoning designation of R-2, with a PUD overlay, upon annexation of the property listed above which is currently zoned County R-2, Suburban Residential. Atkinson moved first reading of Ordinance 1504, an ordinance to amend Section 27.020.010, Official Zoning Map, City of Kalispell Zoning Ordinance, (Ordinance No. 1460), by zoning certain real property as more particularly described on Exhibit "A", located in Section 11, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana (previously zoned County R-2, Suburban Residential) to City R-2 (Single Family Residential), with a Planned Unit Development overlay in accordance with the Kalispell Growth Policy 2020, and to provide an effective date. The motion was seconded. Hafferman moved condition # 8 be amended by adding at the end: "or other such impacts on Three Mile Drive resulting from this development as determined by the Montana Department of Transportation". The motion was seconded. There was no discussion. The amendment (1) carried unanimously upon vote. Kalispell City Council Minutes July 6, 2004 Page 6 Atkinson moved a condition be added (Condition #29) requiring property owners to waive their right to protest the creation of an SID for the purpose of future upgrades to arterials and collector streets that are utilized by the subdivision. The motion was seconded. Atkinson commented he feels this is a good first step in trying to find different ways in getting roads paid for. Mayor Kennedy asked if it wouldn't be appropriate to have the waiver placed on the face of the plat. Wilson agreed it would be appropriate. Atkinson agreed to include in his motion the stipulation to have the waiver placed on the plat. The second concurred. Peters said he understands Atkinson is trying to explore different opportunities for funding roads, but he's not very comfortable with "the whole notion of an SID". He said it's an opportunity, but is it really a realistic approach. Kukulski said SID's are not popular with the public, but it's one of the few tools the City has to make upgrades. He said without a charter, it's one of the only ways to provide a funding mechanism. Hafferman spoke against the amendment stating the mitigation of impacts on Three Mile Drive is supposed to occur at the beginning of the development. He said adding an SID is "double jeopardy". Peters agreed, stating he feels the impacts should be dealt with now and the issue should be postponed until the developer determines how to mitigate those impacts, not the City Council. Mayor Kennedy said she's confused with Hafferman's comments. She said he speaks so clearly about Sunnyside, an area the Council has had to deal with after the fact, and yet he speaks against an option to assist with future growth on a development that hasn't started. Mayor Kennedy asked Hafferman to elaborate. Hafferman said the regulations state that each developer has to take care of their impacts immediately as a condition of final plat approval. He said to make property owners in the future pay for SID would be "totally unfair" because the impacts should be mitigated at the beginning of the project. Herron said even though he seconded the motion, he's not convinced an SID is the right way to go and he doesn't think the Council is prepared to settle the matter this evening. Kukulski said Hafferman has commented that the City has the ability to force the developers to make the upgrades, however, past practice has shown that the Council hasn't required anything from developers other than deceleration and acceleration lanes. He said SID's are very difficult, but an SID is an option the Council should consider as a solution to the transportation problem on Three Mile Drive that won't be available in twelve months after another half dozen subdivisions are approved. Olson commented he doesn't think the Council should add the SID waiver to this development, but at the next work session set a date to make it a part of every subdivision from then on. Kalispell City Council Minutes July 6, 2004 Page 7 Peters said he appreciates that Olson wants to start with the next development, but this is the next development and if these issues are going to be addressed they need to be addressed at thebeginning of this project. Herron suggested voting the amendment down and then tabling the ordinance until this issue can be worked out. Atkinson spoke against tabling the ordinance, stating Purdy has the right to move ahead without the Council "holding him hostage" on this issue. Atkinson said placing the SID waiver on the plat doesn't mean it will ever be used, but it gives the City that option. Mayor Kennedy agreed stating right now time is of the essence for developers. She reiterated this amendment does not put the SID in place, it just gives a future Council an alternative. Herron said the last thing he wants to do is to delay this project, however, he wants to make sure everything is done right and this is something being thrown out at the last minute. The amendment (2) carried upon roll call vote with Atkinson, Kenyon, Peters and Mayor Kennedy voting in favor, and Hafferman, Herron and Olson voting against. There was further discussion and Wilson answered questions. Atkinson commented he doesn't have a problem with townhouses being built along the southern boundary. Atkinson moved Condition #16 be removed which states: "That Lots A and B,15A and B,16 A and B be reconfigured to accommodate single family dwellings". The motion was seconded. Atkinson said he feels the amendment would give the developer more flexibility and he feels the original design of having townhouses along the creek is a good idea. Mayor Kennedy spoke in opposition to the amendment stating there was a great deal of public comment about the townhouses and she sympathizes with the single family residents who live adjacent to this property. She said the planning board worked diligently trying to deal with the impacts of this subdivision and Condition # 16 was part of the compromise. Peters concurred, stating townhouses in other areas of this subdivision won't affect single family homes like it will in this area. In addition, he questions how high density the Council wants to get with subdivisions. The amendment failed upon roll call vote with Atkinson, Hafferman and Herron voting in favor, and Kenyon, Olson, Peters and Mayor Kennedy voting against. The main motion as amended twice carried unanimously upon roll call vote. E/8. RESOLUTION 4906 — PRELIMINARY PLAT — BOWSER CREEK ESTATES Russell Purdy is requesting approval of Bowser Creek Estates Preliminary Plat and Planned Unit Development to include 54 detached single family lots, 42 two -unit townhouse lots, and two neighborhood commercial lots. Kalispell City Council Minutes July 6, 2004 Page 8 Atkinson moved Resolution 4906, a resolution conditionally approving the preliminary plat of Bowser Creek Estates, more particularly described as Assessor's Tract 2 located in Section 11, Township 28 North, Range 22 West, P.iM.M, Flathead County, Montana. The motion was seconded. Hafferman moved Condition #8 be amended and Condition #29 be added to match exactly with the conditions as passed on Ordinance 1504. The motion was seconded. The amendments carried unanimously upon vote. Peters commented he has the feeling the Council is approving subdivision after subdivision without any thought on density, transportation problems and the look of the developments. He said he doesn't feel the Council is being very creative and that it doesn't have high expectations. Kenyon agreed. The motion as amended carried upon roll call vote with Atkinson, Hafferman, Herron, Olson and Mayor Kennedy voting in favor, and Kenyon and Peters voting against. E/9. RESOLUTION 4907 — PRELIMINARY PLAT — WESTVIEW BUSINESS CENTER This is a request for preliminary plat approval of a five -lot commercial subdivision on approximately four and a half acres located on the east side of North Meridian Road north of Three Mile Drive. Kenyon moved Resolution 4907, a resolution conditionally approving the preliminary plat of Westview Business Center, more particularly described as Lot 5, Hall Addition #82, located in Section 6, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. The motion was seconded. Wilson gave a staff report. Atkinson moved that "private road" be replaced with "public road" in Condition #5. The motion was seconded. The amendment carried unanimously upon vote. The main motion as amended carried unanimously upon roll call vote. E/10. RESOLUTION 4908 — FINAL PLAT —WILLIS ADDITION 3 This is a request for final plat approval of a 4-lot residential subdivision on approximately one and a half acres located on the north side of Sunnyside Drive. Kenyon moved Resolution 4908, a resolution approving the final plat of Willis Addition 3, described as a portion of Lot 5, amended plat of Sunnyside Park, located in Section 18, Township 28 North, Range 21 West, RM.M, Flathead County, Montana, and to accept the Subdivision Improvement Agreement. The motion was seconded. Kalispell City Council Minutes July 6, 2004 Page 9 Hafferman said he will vote against the resolution because he has been opposed to this annexation and increased density on Sunnyside Drive from the beginning. The motion carried upon roll call vote with Atkinson, Herron, Olson, Peters and Mayor Kennedy voting in favor, and Hafferman and Kenyon voting against. E/11. FINAL PLAT — NORTHVIEW HEIGHTS PHASE 2 This is a request for final plat approval of a 28-lot subdivision on approximately 8 acres located on the east side of North Riding Road and north of Three Mile Drive. Peters moved to approve the final plat for Northview Heights Phase 2 and accept the Subdivision Improvement Agreement. The motion was seconded. Harball explained three phases were anticipated when preliminary plat approval was given to this subdivision in 2002. Since then, Phase 3 has been sold which leaves the construction of North Riding Road in question. He said Rich DeJana described a preliminary plat or final plat as an agreement between the City and the developer. He said the main issue with this subdivision is the development of North Riding Road. Harball said Mike Fraser stated he believes the agreement shows that each phase is self contained and if one phase doesn't get built, the City has still received the infrastructure that was required with the other phases, however, staff doesn't feel that's correct regarding North Riding Road. He said even though Fraser believes the third section of North Riding Road can now be completed to rural standards, staff believes the agreement was that North Riding Road would be completed north to south through the subdivision with curbs, gutters and sidewalks. Harball said it's up to the Council to decide. Kukulski said the City has tried to be flexible by not requiring entire road systems to be constructed until the final phase. He said he's now concerned that the City is being "left to hold the bag" and the road will never be upgraded. Mayor Kennedy asked if the City is currently holding a bond for completion of the roadway. Fraser said realizing this would be a contentious issue and recognizing that the developers and the City are at an impasse, a second Subdivision Improvement Agreement is being offered guaranteeing the completion of North Riding Road. He said the Council has two options: accept Phase 2 of Northview Heights and allow for the contractual agreement between the developers and the owners of the land to fulfill the commitment to the City for the completion of North Riding Road, or accept Phase 2 and accept a partial bonding for Phase 3 which provides the security for the completion of North Riding Road. Fraser encouraged the Council to approve one or the other so they can proceed with the development. Harball recommended the Council accept the partial bonding by accepting the second Subdivision Improvement Agreement for Phase 3. There was further discussion Atkinson moved an amendment to also accept the Subdivision Improvement Agreement for North Riding Road. The motion was seconded. Kalispell City Council Minutes July 6, 2004 Page 10 The motion carried upon roll call vote with Atkinson, Hafferman, Herron, Olson, Peters and Mayor Kennedy voting in favor, and Kenyon voting against. There was no further discussion. The main motion as amended carried upon roll call vote with Atkinson, Hafferman, Herron, Olson, Peters and Mayor Kennedy voting in favor, and Kenyon voting against. E/12. FINAL PLAT — ASHLEY PARK PHASE 7 This is a request for final plat approval of Ashley Park Phase 7, a 36-lot residential subdivision on approximately eight and a half acres located on the west side of Airport Road at the west end of Merganser Drive. Peters moved the Council approve the final plat for Ashley Park Phase 7 and accept the Subdivision Improvement Agreement. The motion was seconded. Wilson gave a staff report. Olson asked Baker to comment on the cash in lieu of park land. Baker answered Phase 7 lies within walking distance to Begg Park and the $6,000.00 will be used to either improve Begg Park or help to develop a new park near Western Drive. The motion carried unanimously upon roll call vote. E/13. ORDINANCE 1505 — ZONING TEXT AMENDMENT —1ST READING The City of Kalispell has initiated an amendment to the Kalispell Zoning Ordinance to include day care centers as a permitted use in the B-2, General Business, zoning district. Atkinson moved first reading of Ordinance 1505, an ordinance amending the Kalispell Zoning Ordinance, (Ordinance No. 1460), by allowing day care centers in the B-1, General Business Zone, as a permitted use and declaring an effective date. The motion was seconded. Atkinson asked if this will allow adult day care as well as child. Wilson answered it would. The motion carried unanimously upon roll call vote. E/14. CONDITIONAL USE PERMIT — ARTHUR AND SUSIE BURCH The Burch's are requesting a conditional use permit to allow the construction of an accessory single family dwelling in an R-4 zoning district. Olson moved the Council approve the conditional use permit for Arthur and Susie Burch subject to conditions. The motion was seconded. Olson said he thinks it's a great idea. Kalispell City Council Minutes July 6, 2004 Page I I The motion carried unanimously upon roll call vote. E/15. RESOLUTION 4909 —BOARD OF INVESTMENTS LOAN— CITY HALL HVAC SYSTEM This resolution authorizes participation in the Board of Investments loan program for the cost of replacing the heating and air conditioning system for City Hall. Peters moved Resolution 4909, a resolution authorizing participation in the Board of Investments of the State of Montana Annual Adjustable Rate Tender Option Municipal Finance Consolidation Act Bonds (Intercap Revolving Program), approving the form and terms of the loan agreement and authorizing the execution and delivery of documents related thereto. The motion was seconded. Hafferman said he will vote "for this credit card purchase" because it was part of the budget. The motion carried unanimously upon roll call vote. E/16. RESOLUTION 4910 —STATE REVOLVING FUND LOAN— SEWER UTILITIES This resolution authorizes the City to borrow funds from the State Revolving Fund through the Department of Natural Resources and Conservation to install sewer utilities on Highway 93 south to Four Corners. Olson moved Resolution 4910, a resolution relating to $1,543,000 Sewerage System Revenue Bond (DNRC Revolving Loan Program), Series 2004; authorizing the issuance and fixing the terms and condition thereof. The motion was seconded. Hafferman said he will not vote in favor of this resolution because he can't vote for "an item that does not follow our rules and regulations". The motion carried upon roll call vote with Atkinson, Herron, Kenyon, Olson, Peters and Mayor Kennedy voting in favor, and Hafferman voting against. E/17. ORDINANCE 1506 —SALARY SCHEDULE —1ST READING (REMOVED) - Replaced with - ORDINANCE 1501— INITIAL ZONING —NIPO LLC — 2ND READING (MOVED FROM CONSENT AGENDA) Atkinson moved second reading of Ordinance 1501, an ordinance to amend Section 27.02.010, Official Zoning Map, City of Kalispell Zoning Ordinance, (Ordinance No. 1460), by zoning certain real property described as Four Corners Addition No. 321 and further described on Exhibit "A" located in Section 29, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana (previously zoned County B-2, General Business) to City B-2 (General Business), in accordance with the Kalispell Growth Policy 2020, and to provide an effective date. The motion was seconded. Kalispell City Council Minutes July 6, 2004 Page 12 Hafferman said he is voting against the Ordinance because he feels the City is "jumping out and creating a problem with our Fire District by annexing an area that is outside of our mile and a half zone". The motion carried upon roll call vote with Atkinson, Herron, Kenyon, Olson, Peters and Mayor Kennedy voting in favor, and Hafferman voting against. F. MAYOR/COUNCIUCITY MANAGER'S REPORTS (No Action) Mayor Kennedy read an announcement inviting everyone to take part in a community photograph for a "Not in Our Town Special" to be aired on PBS. She said the picture will be taken at 6:00 p.m, on Monday, July 12th at the Flathead Valley Community College. Kukulski announced the City and the Kalispell Police Association has reached a tentative agreement and that is why the salary ordinance was asked to be removed from the agenda. Kukulski complimented Olson for his business reader board stating "Give Your Wife a Hug" G. ADJOURN The meeting was adjourned at 10:34 p.m. ATTEST: eresa White City Clerk Approved July 19, 2004 amela B. Kenne Mayor Kalispell City Council Minutes July 6, 2004 Page 13 Richard DeJana & Associates PLLC KICEMBBEJANA, Esq. M6N. Meridian Rd.. P. 0. Box1757 KOspel/, AfP59903 Phone 406-M-4120 Emall rdejanaadigisys.net Fax 406-752-5015 To: Mayor Pamela B. Kennedy and The Kalispell City Council From: Richard DeJana, attorney for KRDS and J& F Construction (Developers) RE: Phase 11, Northview Heights Phase II (Formerly the Island) Date of Meeting: July 6, 2004 Madam Mayor and Members of the Council: This memorandum with the accompanying documentation will be submitted to you as a summary of the comments made by me during the portion of the Council meeting with the public interest you. I have previously delivered to the City Attorney a memorandum regarding this matter and I assume that memorandum is attached to your packets. In any event, I have attached a copy hereto. Tonight you do not face an issue of denial or acceptance of a final plat, but rather the issue of the extent of the bond which you will require for the completion of certain improvements. You have a memorandum from the City Manager and City Attorney, unfortunately that memorandum is inaccurate and misstates the facts before you. Therefore, I want to take an opportunity to review the history of this issue and discuss with you a lot relating to the same. On April 15th 2002, an application and preliminary plat were presented for review. The subdivision was to be developed in three phases. Those phases were designated on the plat, not in a time related manner, but by specific geographic area. That is the first point we need to make. Irrespective of what order the phases were developed, they still retain their phase designation. Nothing in the application or the approval makes the phasing time related. The application for the subdivision is attached as Exhibit 1. It provides in the Phasing Discussion on page 1 of its attachment. " PHASE III: 13 lots would include the looping of the water to Three Mile Drive and Garland street, a sewer main extension to Three Mile Drive and Garland Street, curb, gutter, sidewalk and adding sidewalk, curb and gutter to North Riding Lane from Phase I -II to Three Mile Drive. " The phasing was shown on page 2 of the preliminary plat. (See the phasing portion of that plat, Exhibit 2.) 2 Staff report KPP-02-2 recommended approval without any reservations about the phasing. The Planning Board did the same on May 14, 2002. On May 23, 2002, the Planning Board submitted it favorable report. (Exhibit 3). The Preliminary Plat and the "application" were approved on June 3, 2002. (Exhibit 4). As you are aware, once a preliminary plat is approved there can be no additional conditions placed on the developer in order to secure the final plat. (76-3-610, MCA). Your Kalispell Subdivision Regulations, at Section 2.07(B), require that if phasing is desired, the developer must propose, as part of the application process and as "part of the preliminary plat approval", the phases and a phasing plan. That was done and the preliminary plat and application were approved. Included in the phasing plan has to be various designated phases and the public improvements that were to be completed before final approval of each phase. As you are aware, the demand for roads and alike to be provided by the developer are what is known as an extraction. There must be an essential nexus between the development and the extractions sought by the city. The extractions must be related to the impact of the subdivision on the city. If not, then the extraction is subject to challenge as a taking and potentially a violation of due process and here a violation of equal protection. Contrary to the implication created by the City Attorney and the City Manager, the road at issue meets the requirements of the city for the number lots produced for Phase I and Phase II. It was planned that way. Should the developers of gone broke at the conclusion of Phase II and Phase I, the road at issue would meet the needs of the city with respect to those lots. (See: Construction Standards, City of Kalispell, SD-1, SD-2 and SD-3). Here, Phase III was later split off to one of the original applicants. It was not and still is not developed in accord with the plans for Phase III. The minutes of your December 16, 2002 meeting reflect the approval final approval of Phase I and a final approval for a plat for Bitterroot Heights which contains Phase III. (See Exhibit 5). During the review of the subdivision, the planning office sent a letter attached as Exhibit 6 to the developers' engineer. That letter specifically recognizes that the proposed subdivision included Phase M. (Item 1, page 1). It further recognizes that upon development of the subdivision, the requirements as found in the application for Northview would apply. (Item 3, page 2). Staff Report KWP-02-3 acknowledges in Section D on page 2 that the improvements necessary -- forming the essential nexus -- for the subdivision will be satisfied by the filing of the final plat for Northview Heights Phase I. Thus, contrary to the memo from the City Attorney and City Manager, Kalispell has already recognized that Phase III was included in The Bitterroot Heights Subdivision. Thus, the assumption of renumbering based on time approval has been shown to be incorrect. Further, the needs and the impact of Phase I, Phase II, and Bitterroot have been by the city's own admission been adequately met. So what is the problem? On August 4`h 2003, you approved a subdivision known as Raven Rock under Resolution 4822. (Exhibit 7). (the Preliminary Plat and then the "revised plat" are attached as Exhibit 8). You required that "[t]he proposed two accesses onto North Riding Road be consolidated into one access that aligns with the undeveloped subdivision road that lies immediately to the west in 3 Northview subdivision." (Condition 7). Thus, after the separation of Bitterroot and with the at least imputed knowledge that North Riding was only to the standards needed for Phase I and Phase H, you approved adding demand requirements to that road. The need — essential nexus — for the Phase III work does not exists in relation to Northview as it stands but rather Raven Rock as you approved it, having already separated Phase III and determined that the road meets the standards needed for that property. To request a bond and a completion of improvements that do not correspond to the nexus or the preliminary plat before granting final plat approval to Phase II, is an extraction not related to the impact of the Northview, but rather to the impact that the City knowingly caused because of Raven Rock. That is not an appropriate extraction. Based on the forgoing, about which you will get more detail, it is respectfully submitted that you cannot and more importantly should not impose the Phase III conditions on this final plat of Phase H.