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Council Minutes 02/21/2002 CITY OF AMMON February 21, 2002 Minutes of the Regular Meeting of the Mayor and City Council: The meeting was called to order by Mayor C. Bruce Ard at 7:30 P.M. in the City Building, 2135 South Ammon Road, Ammon, Idaho, with the following City Officials present: Mayor C. Bruce Ard Councilmember W. Lee Bean Councilmember Karen Y. Anderson Councilmember Leslie Folsom Councilmember Randy G. Waite Attorney Brian Tucker Engineer Bill Manwill Public Works Director David Wadsworth Fire Chief Clarence Nelson City Clerk Aleen C. Jensen Others Present: Von and Jason Crofts, 4310 Mason Street, Ammon Stephanie Affleck, 3950 Wanda Street, Ammon Tom Hunsaker, 2925 Carolyn Lane, Ammon Marla Bezold, Tiebreaker Elementary School Ray and Ivy Berry, 3750 Georgia Lane, Ammon Darlene Wenczel, 3720 Georgia Lane, Ammon Teresa L.Sturm, Attorney representing Todd and Terri Johnston Absent: Attorney W. Joe Anderson Councilmember Waite led the Pledge of Allegiance to the Flag, and Councilmember Anderson offered a prayer. Marla Bezold, a teacher at Tiebreaker Elementary School, promoted an Arbor Day Celebration on April 26, 2002. The Idaho Department of Lands has announced the 2002 Grant Program to promote the observance of Arbor Day in Idaho. Fifty grants of $150 each are available to support Arbor Day celebrations in Idaho communities. Applications must be on file in the Coeur d'Alene office of the Idaho Department of Lands by 4:30 p.m. on March 15, 2002. Mrs. Bezold invited City of Ammon to celebrate Arbor Day with Tiebreaker Elementary and to apply for the grant. She explained the details of the grant application. Councilmember Folsom moved to authorize Mayor Ard to sign the grant application and to allow Marla Bezold to complete the application for the grant. Councilmember Waite seconded the motion. Roll call vote: Folsom - Yes; Waite - Yes; Bean - Yes; Anderson - Yes. The motion carried unanimously. City Council Meeting, February 21,2002 - Page 2 Attorney Brian Tucker introduced Ordinance No. 304 by title, AN ORDINANCE OF THE CITY OF AMMON, BONNEVILLE COUNTY, IDAHO VACATING CERTAIN UTILITY WATER EASEMENTS IN BLOCK 6 OF RICKS FARMS, DIVISION NO. 2 ADDITION TO THE CITY OF AMMON, BONNEVILLE COUNTY, IDAHO; PARTICULARLY DESCRIBING THE WATER UTILITY EASEMENTS TO BE VACATED; AUTHORIZING THE VACATION OF SUCH UTILITY EASEMENTS; PROVIDING FOR AN EFFECTIVE DATE. The ordinance was read in full. Councilmember Folsom moved that the City Council dispenses with the rule requiring the reading of the ordinance on three different days and that the three readings of Ordinance No. 304 be waived. Council member Anderson seconded the motion. Roll call vote: Folsom - Yes; Anderson - Yes; Bean - Yes; Waite - Yes. The motion carried unanimously. Attorney Brian Tucker introduced Ordinance No. 305 by title, AN ORDINANCE TO AMEND THE ZONING CLASSIFICATION AND THE ZONING MAP FOR CERTAIN LANDS LOCATED WITHIN THE CITY OF AMMON; PARTICULARLY DESCRIBING SAID LANDS AND DECLARING THE CLASSIFICATION OF ZONING FOR EACH SUCH PARCEL OF LAND; PROVIDING FOR AN EFFECTIVE DATE (WESTWOOD ADDITION, DIVISION NO. 1 -- 2130 AND 2150 South Ammon Road). The ordinance was read in full. Councilmember Folsom moved that the City Council dispenses with the rule requiring the reading of the ordinance on three different days and that the three readings of Ordinance No. 305 be waived. Councilmember Waite seconded the motion. Roll call vote: Folsom - Yes; Waite - Yes; Bean - Yes; Anderson - Yes. The motion carried unanimously. Councilmember Folsom moved the adoption of Ordinance No. 305 as an ordinance of the City of Ammon on its third and final reading. Council member Waite seconded the motion. Roll call vote: Folsom - Yes; Waite - Yes; Bean - No; Anderson - Yes. The motion carried. Tom Hunsaker, Chairman of the Planning and Zoning Commission explained that the zone change does not mean they can have an apartment in the basement at this time. It is necessary to follow procedures to change the requirements of the R-2 zone to allow one unit on top of another unit. David and Dana Russell, 1730 Falcon Drive, have a home occupation permit for a day care. They have inquired about adding to their permit for D and D Marketing. They eventually want to eliminate the day care and to have D and D Marketing only. In the meantime they want to know if they need a second home occupation permit. The City Council would like the Russells to attend a meeting to explain the details of their plans. City Council Meeting, February 21, 2002 - Page 3 The Association of Idaho Cities 2002 Planning and Zoning Workshop is scheduled for March 16 at the Pocatello City Hall. Three of the Commission members have expressed an interest in attending. The City Clerk asked the City Council if there was a limit in the number of Commission members they wanted to register for the workshop. Councilmember Anderson said the training is very beneficial and she thought there should not be a limit. The new members of the Commission should be encouraged to attend. Also, any of the other members who have not had the training should be invited to participate. The Planning and Zoning Commission requested input on proposed changes to City Code 10-5-23, Required Parking and Loading Areas. Ron Folsom prepared an information packet, which included: (1) A summation of his findings; (2) A copy of the section of the Code marked with proposed deletions, changes, additions, notes; and (3) Parking information on a number of Ammon businesses. In regard to retail establishments, the proposal recommends one (1) parking space for each two hundred (200) square feet of building floor area as a change from one (1) for three hundred (300) square feet of building floor area. Council member Anderson thought this was not a change because her copy of the zoning ordinances already specified one (1) space for two hundred (200) feet. The City deals mostly with retail parking. Councilmember Anderson further commented that she did not think she could support the proposal at this time. Her reason was because, when you look at cities that have problems with parking, the problems are big problems to have to try to deal with. They can substantially cripple business areas when there are parking problems. If we do not get the parking right, we could have problems with all the new commercial development. If we are going to redo our parking, and we should, we need to come up with the best guess of what will be needed. Parking problems are really hard to overcome. Residents of Ammon want less density. The majority of Ron Folsom's proposal requires more parking spaces than the surrounding communities have required. Councilmember Bean commented that the problem is not so much the larger businesses as it is with smaller businesses. One parking space for every employee on the greater shift needs to be built in to the requirements. We need to consider where the employees are going to park and where the public is going to park. Tom Hunsaker added comments regarding student parking. Fire Chief Nelson brought the City Council up-to-date on what is going on with the Fire Department. Grants are available from the Department of Lands, the Bureau of Land Management, Wal-Mart, State of Idaho, and Federal Emergency Management Agency. A wish list includes SCBA equipment, training, a smoke fan, and more hose. The Department plans to work up some grant applications. Councilmember Anderson originally thought that maybe the City Council ought to reconsider the vote of the Council on January 17 regarding Todd and Terri Johnston's City Council Meeting, February 21,2002 - Page 4 home occupation permit. However, when she read Roberts Rules of Order, she discovered that reconsideration of the motion should have been done at the next regular meeting after January 17. She received a number of telephone calls about the Council's decision. When she tried to explain, she wondered if the Council made a mistake. Johnston's were making plans to rebuild their home. They asked, if they added a gymnastics room to the home, would it meet the home occupation square footage requirement. It did not, but it was proposed to change the ordinance to increase the square footage requirement. There are a lot of people in Ammon who do not think we should change our ordinance to allow for larger home occupations. People want to be heard about changes to the requirements. Councilmember Bean hoped we could open up the discussion for two reasons. One, he was not at the meeting on January 17, and he has some objections to what was done. We are outside the bounds of what our existing ordinance calls for. Terri Johnston has had a home occupation permit to teach gymnastics in her garage. We need to base our decision on the merits of this time and not what was done before. When you have a completely new facility, you have to reapply. In essence Terri Johnston was reapplying for the home occupation permit. She was saying that she was coming back in for a home occupation permit. Once the home is built we decide if the home qualifies on square footage. We operated outside of the bounds the ordinance requires in terms of 25% of the ground floor of the dwelling. The decision was based on a sketch of what the Johnstons propose to build. Council member Anderson was instructed to take the proposed change to the Planning and Zoning Commission to initiate the public hearing process. You can not take something to public hearing when you have already voted to change it. Attorney Teresa L. Sturm represented the Johnstons. She found nothing in City of Ammon's statutes or ordinances that allows proceeding in this manner by posting an agenda notice on the door that the Council is going to reconsider a vote taken at the last meeting. The Johnstons have received nothing resembling a reasonable notice to be at the meeting to defend their case. Johnstons are in the process of formulating house plans. Their home occupation has not been revoked, reviewed, restudied, or otherwise voided. The Council voted to let Terri Johnston go on based on what she presented as a reasonable facsimile of what they intended to do. They have gone to considerable expense and effort to adjust the building of their new home to match what the Council has told them at the last three meetings. It was not acceptable for Terri to build a separate building to house her gymnastics program. It would be acceptable to add on to the home an acceptable number of square feet, which would fit the home occupation requirements. Johnstons have now started to design a home that will fit the criteria learned in prior proceedings. Terri intends to add on to her house an area, which she will use for a family room, basketball court, and gymnastics. This should make the square footage of the house well over the requirement for a home occupation. City Council Meeting, February 21,2002 - Page 5 Councilmember Anderson reviewed the procedures to reconsider or amend a motion. No motion was made to reconsider or amend the decision of the City Council because it had to be done at the next meeting. That date has passed. Legal procedures were discussed. The Johnstons are entitled to due process. There were differences of opinion about whether or not Terri Johnston has a valid home occupation permit at this time. She had a home occupation permit on a home that no longer exists. Councilmember Bean recommended that the City Council clarify what we are doing with the ordinance. If Terri falls outside the requirements, we need to have Terri come in to discuss the things with her. We can not make any decision when we really do not know where we are heading with the ordinance. We need to look at whether the ordinance should be changed for the whole City and not just for one case. Teresa Sturm pointed out the Johnstons' situation. The Johnstons have to rebuild their house, and they have to be occupying it by September. They need to move forward. They have responsibilities to live within the existing ordinances. The City Council voted "Yes" and the Johnstons have started the process to rebuild their home. Sundberg and Associates are designing the home. It would change the plans considerably if Terri were not allowed to use an adequate area in her home for the home occupation. There was talk about giving Terri the right to respond and a reasonable notice. In all fairness, the neighbors want to have an opportunity to respond. Some of the neighbors were present. Council member Bean said he would like to hear their feelings about the plans and why they are opposed. If there is new evidence that it would be reasonable to reconsider, then the Council ought to do so. If the neighbors simply do not want the home occupation in their neighborhood, that is different. Everyone has a reason for something not to happen whether it is personal or otherwise. If there are reasons that indicate that the City Council neglected, failed or did not have the proper evidence, then the Council needs to reconsider. There was additional discussion on proper procedures. Attorney Tucker advised, if the City Council is going to act differently than Terri may have been led at the prior hearings, then the Council would want to do so in a timely fashion. There is still time to correct the alleged wrong. Terri may have had some minor damage, but things are only going to get worse from here on out. If she was led to believe the City was going to change the ordinance, it should be done right away. Councilmember Anderson contended Terri Johnston's home occupation permit is invalid now because she no longer has a home. The Mayor said just because the home was destroyed does not invalidate the permit. If she puts the home back within the guidelines, the permit continues. Attorney Tucker advised, if Johnstons build a new structure, they ought to come back to have a home occupation permit approved based on the new structure. City Council Meeting, February 21, 2002 - Page 6 Teresa Sturm stated a permit is personal to an individual. You can not grant a permit on an object. Things outside the Johnstons' control happened which does not allow Terri to use the permit at the address at this time. There are conditions that govern the permit based on the new structure. The plans of the Johnstons were discussed. Council member Waite added that one problem the City Council has always had in calculating square footage is they have never had a dimensioned plan. It has been a sketch. The City Council has calculated the square footage in their heads. Council member Anderson said the square footage of the second and third floors was added together to determine the percentage. If the area Terri intends to encompass in her house and utilize as a recreation area for her children and her gymnastics is included on the main floor of her house, the square footage is considerably more than the main floor of the old house. The recreation or gymnastics area is actually planned as a double floor. The floor is in the basement and the walls are seventeen (17) feet high. Council member Bean repeated that he would like to hear from the neighbors who were present. Attorney Sturm objected because the Johnstons had not had proper notice for a hearing and they are entitled to be present. It was noted that the meeting was not a public hearing. Attorney Tucker advised that the City Council did not plan to take any action at the meeting. The people could speak if they so desired. If the Council takes action, it should be scheduled on the agenda for another meeting, and everyone should be notified. Darlene Wenczel, 3720 Georgia Lane, stated she and her husband built a home on Georgia Lane twenty-three years ago. There were protective covenants that said there would not be businesses. She opposed a business on a residential street. You do not bring in over 100 students to classes and not increase traffic. The business will devaluate Wenczel's home. Councilmember Anderson asked Mrs. Wenczel, that since it is believed the home occupation is against the protective covenants, do you think the neighborhood would consider taking legal action? If legal action were taken after the Johnstons rebuilt their house, it would be much more grievous than to stop action now. Mrs. Wenczel thought it would be a consideration. Councilmember Bean asked Mrs. Wenczel how much the traffic had increased. She did not know how to determine. Mayor Ard reminded that the home occupation is planned to be the same as it has always been. The homes in the area have all lost property value because of the explosion. The facility is going to be bigger and nicer so it is reasonable to think there will be changes. City Council Meeting, February 21, 2001 - Page 7 Council member Folsom pointed out that the explosion was an accident. She wondered why that would have any relevance to the home occupation. Council member Bean did not recall any complaints or concerns about Terri's home occupation until she decided to build a bigger building. Mrs. Wenczel added that the neighbors have tried to be good neighbors and tolerate, but that does not mean there were no problems. Stephanie Affleck, 3950 Wanda Street, asked for a definition of a home occupation or a home business. She thinks of a home business as a piano teacher or someone doing computer work. She does not think of it as something that will generate a lot of traffic. Council member Anderson asked her if she would be in favor of changing the square footage requirement to allow more space for a larger home occupation. She answered that larger occupations should go out on 1 ih Street and not in a residential area. Ivy Berry, 3740 Georgia Lane, stated it is important for the neighbors to approve of changes to the requirements for a home occupation permit. Berry's house was damaged when the Johnston's house exploded, and they are experiencing trouble negotiating with the insurance company over the damage. Mayor Ard pointed out that Johnsons have the right to rebuild their house. They can build what they want as long as it meets the zoning requirements. The only thing the City has control of is how much of the home is used for the home occupation. Ivy Berry said the City Council is responsible to both sides. They should act fairly to Johnstons and fairly to the neighbors. The decisions should be open to everybody. Councilmember Bean asked Ivy Berry why she was opposed. She had concerns that requirements get changed. She was upset because it seems that things are done "behind everyone's back." That is not right. Another thing, the traffic was bad and Berrys did not say anything. Council member Anderson said she agreed with Ivy that if the City changed the ordinance it should be changed for everybody. Then she asked Ivy: "Do you think we should change the ordinance?" Ivy answered, "No." Ray Berry, 3740 Georgia Lane, commented that it seems there is a problem about how the home occupation is stated. It says, "No more floor space than the equivalent of twenty-five (25) percent of the ground floor area of the dwelling shall be used in the home occupation." It sounds like, if I want to build an Albertsons, as long as I live in it and say that is my living space too that is only 25%. If I say I want to build a big gym, as long as I live in the gym, I'm under 25%. The 25% is for business only. Otherwise, if you are living in the house that is part of your house and it is 0%. He heard the City had changed the ordinance or planned to change it. He thought that called for a public hearing. Council member Bean asked Teresa Sturm if she had the square footage. The area planned for the gym is about ten (10) square feet bigger than the area of the garage City Council Meeting, February 21, 2002 - Page 8 which Terri was using. The footage is near the same, but the gym will be built into their house. The plans are still rough draft. Ray Berry pointed out that a previous hearing indicated the Johnstons were in non- compliance. The square footage of the house was estimated to be 1300 square feet and the garage was 977 square feet. That was over 25% for the home occupation permit. Councilmember Anderson said there were some inconsistencies but the Council acted on an estimated 28%. The percentage was never reconciled. There was confusion because the Council looked at the issue and it appeared to be fine. However, now it is changed. Teresa Sturm wanted the Council to understand that she has not advised the Johnstons to jump into this, build a building, and think we will take care of the problem down the road. The Johnstons are fully aware that they need to come within a very close parameter of the ordinance. They plan to comply with the existing ordinance. The Council discussed how to proceed. Various opinions were expressed. Attorney Tucker summarized that Terri Johnston has a home occupation permit based on the home that blew up. Obviously she is not going to be operating in that facility any more. She may have a permit according to the Council decision in January on the sketch plans. If that ends up not exactly what is being built then that permit is probably limited to the sketch. If they build something new, which it sounds like they are going to, they probably do need to get a permit for the new building. It was agreed that Terri left the City meeting with the impression that everything would be okay based on the sketch plans. If those plans have changed, the City needs to know. She needs to come back with the actual plans when they are finalized. The City Council has an obligation to administer the permits that it issues. The City Council deferred any action until their meeting on March 7, 2002. Teresa Sturm wondered if someone was going to call Stephanie Arguello, 3505 Rich Lane, to tell her that she is using more than 25% of her home for her day care. The City Council granted Stephanie a home occupation permit for a day care on January 17, 2002. The Council did not pay much attention to the 25% requirement. This was the same meeting that Terri Johnston requested the City Council to approve her plans. The City has tried to stress the 25% requirement to all applicants. We have not gone to the house to make an actual check. If there are any complaints, we do review the permit. Reports: David Wadsworth reported for Public Works. The crew has been working on the roads to try to get them to drain. Council member Anderson reported she has been working with the Fire Department on some ideas for remodeling at the fire station to improve the heating. They are putting together a plan and getting bids. The details have not been finalized, but it appears they will be able to do the remodel within the amount budgeted. City Council Meeting, February 21,2002 - Page 9 Also, Councilmember Anderson has talked to several people about bartender permits. Captain Campbell of the Sheriffs Office has decided that he will give our applications for a bartender permit a better review. He will stamp them approved or disapproved. He had some thoughts on bartender permits to pass on to the City Council. He thinks our ordinance is not what he would recommend because it does not give any time period for alcohol related offenses. Another thing, it used to be that every entity required a bartender license/permit, but nearly everyone has dropped the bartender licensing. As far as getting a more in depth background check, we can not look in the Idaho Falls data base and we can not look in the State or National base unless we go through he FBI. Our ordinance does not have the correct wording for us to use the FBI database. They promised to send some information about the FBI database. In addition to the Bonneville County check we now have available, there are two options. We can go more restrictive where we use the FBI database and charge $100 for an annual fee. The other option is to not require bartender permits. If we want to change from our present system, it would probably be best to change at the end of the year. Until we resolve something better, we should obtain a County background check and have a review by the City Council for final approval. The bartender permits, which were issued following the last City Council meeting, need to be reviewed by the Council. Engineer Manwill reported that the businesses in Doyle Beck's subdivision questioned what their zip code should be. He did not think the City could do anything but use the zip code assigned to that area which is 83401. Another item, the County has been paying the power bill for the streetlights in Tiebreaker Division No. 10. The County has changed it with Utah Power so that City of Ammon will be billed. Councilmember Bean reported on the Sunnyside Road project. Roger Hill called to find out what the City planned to do about the drainage pond. He was advised that it was still an issue on open discussion. A request was made to Roger to have the School District prepare a statement of what they want for the Council to consider. Council member Anderson moved to approve the minutes of City Council Meeting held January 3, 2002. Council member Folsom seconded the motion. Roll call vote: Anderson - Yes; Folsom - Yes; Bean - Yes; Waite - Yes. The motion carried unanimously. The City Office should continue to bill the developers of The Cottages for the power on the booster pump. Claims were approved. The Council decided to meet at 6:30 P. M. before the Council Meeting on March 7 to review the ordinances. This pre-meeting should be posted on the meeting agenda. Councilmember Folsom moved to adjourn the meeting, and Councilmember Anderson seconded the motion. The meeting was adjourned at 9:50 P.M. Mayor Attest