06/14/99 SP City Council Minutes1463
A SPECIAL MEETING OF THE KALISPELL CITY COUNCIL WAS HELD AT 6:30
P.M. MONDAY, JUNE 14, 1999, IN THE COUNCIL CHAMBERS AT CITY HALL IN
KALISPELL, MONTANA. MAYOR WILLIAM E. BOHARSKI PRESIDED. COUNCIL
MEMBERS JIM ATKINSON, NORBERT DONAHUE, JOHN GRAVES, DALE HAARR,
DUANE LARSON, GARY NYSTUL, DOUG SCARFF, RON VAN NATTA AND CITY
ATTORNEY GLEN NEIER AND CITY MANAGER CHRIS KUKULSKI WERE PRESENT.
Mayor Boharski called the meeting to order.
AGENDA APPROVAL
Haarr moved approval of the Agenda as presented. The motion was
seconded by Nystul.
There was no discussion.
The motion carried unanimously upon vote.
HEAR THE PUBLIC
John Dudis, Attorney with Crowley, Haughey, Hanson, Toole &
Dietrick, said he is appearing on behalf of their client, Pack &
Company. He said the Crowley Law Firm has spent considerable time
over the past few days preparing a legal opinion concerning the
possible de -annexation of the Pack & Company property and has
submitted the opinion in a letter form for the record. Dudis said
their legal opinion is that the annexation passed on May 17, 1999
is irrevocable, subject only to a thirty day window for its
effective date. He said if the Council wished to de -annex the
property, there are procedures to do so under the Montana Code
Annotated, but those procedures have not been followed. Dudis
stated any attempt to take action that is not in compliance with
those annexation procedures will not be legal or valid. Dudis said
Pack & Company has spent a considerable amount of money getting
this property ready for sale based on the fact that this property
has been annexed. He said if his client loses the sale, or suffers
other damages, he may have to look at recourse against the City for
compensation in regard to that amount.
Tom Tornow, Attorney representing Citizens for a Better Flathead,
said Citizens for a Better Flathead first wanted to say that
Citizens ran an ad in the Sunday newspaper applauding the Council's
denial of the PUD application. (Copy submitted for the record)
Tornow said concerning the environmental concerns, he received a
copy of the Environmental Assessment on the property and the study
indicates there's a significant potential for contamination. Tornow
said the study reported the Montana Department of Transportation
site is "a large quantity generator of hazardous material." He
said the study notes numerous potential hazardous waste sites and
recommends a Phase II Environmental Assessment. (Copy submitted for
the record) Tornow said on behalf of Citizens for a Better
Flathead, he suggests the Council go back to square one and start
fresh and make sure all regulations are followed.
Pamela Kennedy, 1036 6th Avenue W., Pack & Company employee,
encouraged the Council to leave the annexation in place and approve
the zoning. She said it's the nature of cities to grow and with
that growth obtain a good tax base. Kennedy said this is an
opportunity to encourage business growth within the City limits of
Kalispell and to have sewer and water extended from FVCC to West
Reserve. She asked if the City is really working with developers or
is the City becoming known as not being business friendly. Kennedy
said this development has continued to "hop through the hoops
supplied by the City of Kalispell". She said the changes to the
PUD were minor and were made to meet the City's concerns. Kennedy
asked the Council to leave the land annexed and move forward with
finishing the zoning.
Jim Lynch, Pack & Company President, said he wasn't going to speak
but he's upset that Tornow once again questioned his honesty and
straight forwardness in front of the Council. Lynch said the
Environmental Assessments were done as a condition of the purchase
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agreement and are never a condition of an annexation or zoning
request. He said Pack & Company and the State will be required to
remove the underground storage tanks and any contamination, not the
City of Kalispell or the developer. Lynch said his firm has never
been dishonest in the presentations or representations to the
Council and have actually gone beyond to provide any information
requested. He recommended the Council not rescind the annexation
and said they are still willing to enter into a B-2/PUD agreement
with all of the conditions set forth.
Colleen Semple, 1413 6th Avenue E., said she was proud of the
Council at the last meeting because of what she sees as the
direction the City is taking. Semple said the City is "on the
right track" by developing inside the limits and making Kalispell
a city people want to visit. She said she agreed with Atkinson
that the Council was voting on a strip mall and development isn't
wrong, but the area doesn't need more retail space at this time.
Semple said a development like this will kill the downtown.
RESCINDING RESOLUTION 4476 - A RESOLUTION ANNEXING THE DOMESITE
Van Natta moved Resolution 4485, a resolution rescinding a vote
taken at the Council meeting of the 17th day of May, 1999, and
repealing Resolution No. 4476, which provided for the annexation of
Domesite Addition No. 290. The motion was seconded by Nystul.
There was discussion.
Van Natta asked Neier to comment on Dudis' letter.
Neier said the reason his office has a problem with this annexation
as it exists without the zoning or PUD in place, is that Montana
Law provides under all of the annexation procedures that in a case
of annexation under Montana Law, services must be provided
according to a plan provided by the municipality as specified in
§7-247-32, except in first class cities where otherwise mutually
agreed upon by the municipality and the real property owners of the
area to be annexed. He said because the ordinance approving the PUD
agreement failed, the City doesn't have an agreement with anyone
regarding the delivery of those services and from his office's
point of view, it's not safe at this time to proceed with the
annexations. Neier said once the resolutions go into effect, the
City has no way of ascertaining the delivery of those services and
they could be made at total City's expense. He said as far as
Dudis' letter, State Law authorizes that a municipality with
general government powers has a legislative power, subject to the
provisions of State Law, to adopt, amend and repeal ordinances and
resolutions. He stated generally ordinances become effective
thirty days from and after their final passage and resolutions
become effective immediately unless a delayed date is specified in
the resolution. Neier said when annexing government property, the
effective date of the resolution must be thirty days following
passage, so in order to conform to that law, a delayed effective
date was placed on both resolutions. Neier said in summation, that
is why he's recommending the Council rescind that action and repeal
the resolutions to give everyone time to come to a "meeting of the
minds." He said by repealing the resolutions, it simply returns
the City to the status it was at on May 16th, the day before the
resolutions were passed. Neier said when an agreement is reached,
the matters can be brought back before the Council for final
action.
Haarr commented it would be better to extend the effective date of
the resolutions rather than rescinding them because if Dudis'
interpretation of the law is correct, the Council is taking a risk.
He said furthermore, he feels rescinding the resolutions would be
a disincentive to reach agreement on the PUD and the City is back
to a "bureaucratic situation where the concern of the developer and
the time frame is kind of irrelevant." Haarr said he would like
"to hold our feet to the fire to get this agreement put together".
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Neier said there may be a disincentive to reach agreement if the
resolutions are repealed, but on the other hand, there may be a
disincentive on the part of the developer if they're not repealed.
Kukulski said in discussions on Friday, he hopes he made it clear
to the developers that the advice to repeal the resolutions was in
no way meant to show the City's lack of support for this project.
He said it simply had to do with the fact that the annexation and
the PUD agreement should be approved in a parallel fashion.
Kukulski said he thought most of the issues had been settled at the
first reading, but after sitting down at the table "it became
abundantly clear there were more misunderstandings about this
agreement than we thought." He said if it wasn't for those
misunderstandings, we wouldn't still be conversing about the
agreement, it would be word for word the way that it was after the
first reading. Kukulski said after talking with a registered
parliamentarian, he discovered the Council couldn't just reconsider
its vote and so "in essence we've been forced to wipe the slate
clean with regard to the PUD ordinance." He said the Council has
to go back to a first and second reading of the ordinance and the
recommendation is the annexations should run parallel to that.
Larson said he can see no clear advantage to delaying the action
and thinks rescinding the resolutions is the cleanest way to go.
He said if an agreement is reached, the Council can re -annex the
property as soon as the next meeting or even a special meeting.
Larson said if by repealing the resolutions the Council was sending
Lynch back to the Planning Board, then he would seriously consider
Haarr's idea, but he said if the Council is just going back to the
day prior to annexation, then that's the cleanest and best way to
go.
Donahue said some of the concerns he had when he voted against the
ordinance on June 7th have been met, and even though other
questions still haven't been answered, he doesn't feel it isn't
anything that can't be ironed out. He said he has asked many
people over the last few days what they see for that property and
most of them don't have an alternative. Donahue said it's apparent
that property will develop in some fashion and Lynch is entitled to
have it develop. He said the argument by Dudis is persuasive, but
the argument by Neier is also persuasive, and to protect the City,
he suggests the Council go ahead with the de -annexation on the
advice of the City Attorney and continue to work with the
developers in good faith to get an agreement settled.
Boharski said Neier referred to a section of law requiring the City
to provide services unless an agreement is made otherwise. He
asked if it would be possible to enter into a simple agreement with
Lynch so the City wouldn't be liable for extending services to the
site.
Neier said the PUD agreement provides for the extension of
essential municipal services and if the agreement is settled,
that's all the City needs.
Boharski said there's a tremendous feeling amongst investors in the
community that "this is a very difficult body and a very difficult
City to deal with". He said he believes that's why the City didn't
receive a single response on the offer to sell Daley Field.
Boharski said an individual with millions of dollars at stake
doesn't like to wait. He said he agrees with Haarr that the Council
has other alternatives to protect the citizens of Kalispell without
sending the "chilling effect" that de -annexation will send.
Boharski said the City could enter into a one paragraph agreement
that states the developers, Pack & Company and the City of
Kalispell agree that it's not the responsibility of the City to
extend services to the site. He said the other conditions could be
reached a year from now if necessary. Boharski said the other
option would be to amend the effective date. He said both are
perfectly acceptable options for the Council to take and would send
a message to investors that this is a body that can be worked with.
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Dudis said when Lynch entered his law firm, he asked if the action
being proposed by the City of Kalispell is in compliance with
Montana law. He said the research was done and he doesn't read the
law the same way as Neier does. Dudis said §7-2-408 and §7-2-4802
requires certain actions regarding notices, hearings and petitions
before any land can be excluded from the City of Kalispell. He said
it's the law firm's opinion that this land is already annexed to
the City, and any action to exclude that land has to be in
conformity with these laws.
Larson said if the law firm believes the property was annexed on
May 17th, what about the thirty day waiting period.
Dudis said the thirty days is viewed only as administrative and not
as anything substantive, and in their opinion, thirty days later,
regardless with what happens, the land has become part of the City
of Kalispell.
Boharski said assuming the Council amends the effective dates of
the resolutions to July 6th, would that prevent any legal action
between now and that time.
Dudis said that's a business decision for Lynch to make, but his
legal opinion remains that June 17th is it.
Boharski said he's asking because if the City ends up in Court,
nobody wins. He asked Lynch if the date is changed, would that
resolve any concerns with the Council.
Larson said if the Council goes by Dudis' opinion, he doesn't see
how the date can be changed. He asked Neier if the Council has
legal standing to amend the resolution.
Neier said under Robert's Rules of Order, the Council can amend the
resolution, but if Dudis is right, then the Council has no
authority to change anything at this point in time.
Kukulski said he would hope the Council has faith in its own legal
staff. He said the Council has a legal opinion from its own City
Attorneys on what can or can't be done and he would hate to think
a decision would be made based on someone else's paid staff. He
said his other concern is legal threats. Kukulski said if the City
is getting threats about lawsuits with someone we're trying to
enter into a good faith agreement with, he just doesn't believe
that's what Lynch really wants to do.
Boharski said by extending the effective date, the Council would be
relying on Neier's legal advice. He asked if extending the date
would place Lynch and the developer in a more amenable position to
negotiate a PUD.
Lynch said he can't speak for the developer but they've always been
willing to negotiate. He reminded the Council that five of the
eight drafts were to correct typos and the other three were to
correct language. Lynch said on advice from his attorney, he can't
agree on any extension. He said the City isn't giving any
guarantees the issue will pass at the later date and their
contention remains the property is annexed into the City of
Kalispell.
Donahue moved to amend the motion adopted at the May 17th meeting
by changing the effective date of Resolution 4476 to July 6th. The
motion was seconded by Haarr.
The motion was deemed out of order until the original motion is
withdrawn.
Van Natta withdrew the original motion. The second concurred.
There was discussion.
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Kukulski said if the Council's decision is to extend the date, then
a longer time period needs to be given to settle the agreement.
Donahue agreed to change the effective date to July 20th. The
second concurred.
There was discussion.
Atkinson said he still doesn't understand why the Council would
extend the effective date. He said it appears members are
responding to a non -negotiation on the part of the developer, and
responding against the recommendation of the City Attorney.
Van Natta said he feels if the original thirty days is legal, then
extending it is also legal.
Atkinson said he feels by extending the date, the Council isn't
taking the recommendation of its counsel, or the counsel of the
developer. He said it appears members are making up their own
scenario that will not keep the City from a lawsuit, or help the
City in a lawsuit if the Council doesn't take the City Attorney's
recommendation.
Larson said he agrees because if Dudis and Lynch stick with their
legal opinion, as of the 17th they can file suit in Court and
request the services. He said if their opinion is right, then the
City is obligated whether the date is extended or not.
Boharski thanked Donahue for his motion and said he was making a
bet that if this passes, the City won't end up in Court if an
agreement can be reached.
Nystul said he would like to make two points. First he said he
would like to reemphasize that the City Attorney has recommended
the resolutions be rescinded and he agrees. Second, he said
Council members have yet to sit down and go through the PUD
agreement and have it explained by legal counsel so an intelligent
decision can be made. Nystul said for "those who have their
fingers in the pot, I would recommend whatever time frame that you
have, to give us time to look at it".
Donahue commented that the City's attorney has said the Council can
amend the effective date and be no worse off than we are now. He
said he feels the motion gives everyone an opportunity to iron out
any differences and come to a consensus on the project.
Atkinson asked Neier if he has to go to Court, would he rather
defend the rescinding of the resolution, or the extension.
Neier said he can't answer that. He said tell him what to do and
he'll do it the best that he can.
Atkinson said Neier is hired by the Council, serves the Council,
but also has to interpret the law and he would like to give Neier
every possible benefit in Court by following his first
recommendation.
The motion carried upon roll call vote with Donahue, Graves, Haarr,
Scarff and Boharski voting in favor, and Atkinson, Larson, Nystul
and Van Natta voting against.
RESCINDING RESOLUTION 4477 - A RESOLUTION ANNEXING STATE SHOP
ADDITION NO. 286
Neier said before a motion is made, he feels it would be
appropriate to take a similar action on both resolutions.
Donahue moved to amend the motion adopted at the May 17th meeting
by changing the effective date of Resolution 4477 to July 20th.
The motion was seconded by Haarr.
There was no discussion.
1468 The motion carried upon roll ca�i vote with Donahue, Graves, Haarr,
Scarff and Boharski voting in favor, and Atkinson_, Larson, Nystul
and Van Natta voting against.
ADJOURN
The meeting was adjourned at 8:00 p..m.
Wm. E. Boharski
Mayor
ATTEST:
heresa White
City Clerk
approved June 21, 1999
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Citizens for a Better Flathead
Thank You
Kalispell City Council!
We applaud your decision to deny
on the DomeSite project be cause:
• The dome is NOT a part of this project. It is big
box stores that displace smaller locally owned
downtown businesses with no real benefit to our
city tax base.
• The developer failed to provide critical and
required reports to you or the public.
• This is an industrial site used for making asphalt.
Water quality and hazardous waste studies were
not provided to the city or the public.
• City staff has not been given essential informa-
tion to determine the cost of providing needed
city services.
• Developer -proposed design standards are serious-
ly inferior to those the city approved for Buffalo
Commons and the State Lands commercial de-
velopment. You should insist on high -quality
standards.
• The developer has failed to agree to city -proposed
cash bonding. It has offered the gravel pit and
land as collateral.
The public has been kept in the dark about
this project for too long. Thank You City
Council for seeing that this development
was not a good one for the community or
the taxpayers.
VO 1 IIip rtxaIlt, kw
1
1
1469
Thomas T . TornOW .Actor+pet,-at-Law
100 Seconj Street E3st
LWitefish, MT 59937-2489
Telephone (4CE i 863-4888
Facsimile i406�e63-4e89
Mcbile ; 406 i 253-4888
tomes @cyberporl net
,lung 14. 1991)
Sandy Straehl
Montana Department of Transportation
P.O. Box 201001
Helena, MT 59620-1001
FAX: 1-406-444-7643
RE: Vallev Done, LLCktn!a Domesile. LLC
Dear Sandy:
I am writing to confirm our telephone conversation of Wednesday. June 9, 1999, %X)ncerling
the above referenced matter.
In that conversation, I asked you if it was correct tltat an cnvironrrie» tal assessment had been
completed on the Mutton Pit. You advised me that your ot?ix had no inKirmatiorl that such an
assessment had been completed. You also advised me that there have been no start up meetings with
your office and none of the contact or coordination that would be expected if such an analysis %vere
to be undertaken. Finally. you reconfirmed your Depatvrtent's position that. you cannot consider the
proposed exchange until the MEPA analysis is completed.
If 1 have misunderstood our conversation, p1case contact the at once.
As stated in my prior letters to your Department, please keep me advised as to the status of
the proposed exchange and provide me with copier of any documents related to the exchange,
including. but not limited to draft agreements and correspondence.
If I may be of any further assistance, or if you desire any additional intonation, please
contact me at your convenience.
Sincerely,
Thomas T. Tortow
TTT-'rkh
cc: Citizens for a Better Flathead
Licensed to Practice in Colorado & Montana
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