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Council Minutes 09/06/2001 CITY OF AMMON September 6, 2001 Minutes of the Public Hearing before the City Council acting as the Board of Adjustment to consider a Conditional Use Permit, the 2002 Fiscal Year Budget Hearing, and 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 Council member W. Lee Bean Council member Harvey L. Crandall Council member Leslie Folsom Councilmember Ira K. Hall Attorney W. Joe Anderson Engineer Bill Manwill Public Works Director David Wadsworth City Clerk Aleen C. Jensen Others Present: Alan Cunningham, Mountain River Engineering Kenneth Lembrich, 2640 Salmon Street, Ammon Teresa Sturm, Attorney for Terri Johnston David Benton, Benton Engineering Ron Folsom, 2750 Sawtooth Street, Ammon Elaine McGary, 3255 Meadow Lane, Ammon Richard Groberg, Groberg Real Estate, Idaho Falls Todd and Terri Johnston, 3760 Georgia Lane, Ammon Clayton Ogilivie, 355 Ninth Street, Idaho Falls Corey Smith, Eastgate Drug Deidre Smith, 3600 Stonehaven Drive, Ammon Ray A. and Ivy Berry, 3740 Georgia Lane, Ammon Chris Blower, 3795 Georgia Lane, Ammon Richard Birch, 2865 South Ammon Road, Ammon Stephanie Egbert, 3785 Georgia Lane, Ammon W. C. and Carleen Geyer, 3835 Georgia Lane, Ammon Jeff Freiberg, Harper-Leavitt Engineering Harold Loveland, 3210/3220 Romrell Lane, Ammon Jolene Reeder, 3725 Georgia Lane, Ammon Joe Groberg, Groberg Real Estate, Idaho Falls Jay Johnston, 2125 Cabellaro Drive, Ammon Douglas Smith, Eastgate Drug Darlene Wenczel, 3720 Georgia Lane, Ammon Karen Anderson, 755 Tie Breaker Drive, Ammon City Council Meeting, September 6,2001 - Page 2 Councilmember Folsom led the Pledge of Allegiance to the Flag and Councilmember Crandall offered a prayer. Mayor Ard opened the Public Hearing of the City Council acting as the Board of Adjustment to consider the request for a Conditional Use Permit (aka Special Use Permit) to allow a separate building for Terri Johnston to teach gymnastics at 3760 Georgia Lane. Notice of the Hearing was published in the Post Register on August 21 and August 28, 2001. Also notices were mailed to property owners within three hundred (300) feet and to other interested parties. Mayor Ard swore in the individuals who desired to present testimony. Terri Johnston, 3760 Georgia Lane, has lived in Ammon for about twelve years, and she has operated a gymnastics business for ten years. She has had a license (Home Occupation Permit) to teach in her garage at her home for about three and one-half years. Prior to buying their lot, they talked to one of the members on the City Council, and he indicated there was a chance this would go through. So they went ahead and bought the lot. She has been teaching in her garage, but they would like to move the gymnastics classes in to a building out back of their house. A professional contractor has helped with the plans for the building. He supplied a site plan and copies were available at the meeting. It shows where the building will set in relation to their house. It is done to scale. They live in an RPA zone, and they understand they can build the building. They need a Special Use Permit so they can teach gymnastics out there. They believe the proposed use is harmonious with the general objectives of the Ammon Comprehensive Plan and with the zoning ordinances. The zoning ordinances allow them to operate a gymnastics business out of their home under specific conditions. They are not proposing to expand the business by expanding the number of children or the number of hours during which the business will be conducted. In fact, she has cut the afternoons in half since she came in and got her permit to teach in her garage. She only teaches two days a week not four. She teaches each morning for an hour before school. "We are not asking for a change in any of the conditions placed on the operation of a home occupation except that we want to move the business out of the garage and into a building out back." City Council Meeting, September 6, 2001 - Page 3 Terri passed around a few pictures of buildings in their neighborhood. The proposed building will not be much different than those pictured. It will have white siding like their house. They do not believe it will interfere or change the existing character of the neighborhood. By simply moving the business to a building on their property, it won't be hazardous or disturbing to existing or future neighboring uses. In fact, if there is a disturbance, it would be less of a disturbance out there. It allows more parking space because their cars can go in their garage. Along their street there are at least four other houses that have a strip along the road that is paved or has gravel so cars can park out there. That is what they would like to do to make sure that, if people want to park on the street, they could park in front of Johnston's house rather than the neighbor's. It is not believed that parking will be much of an issue. "We have previously been served by essential public facilities such as highways, streets, police, and fire protection. Because the character of our business will not be changed if we move into the proposed building, we anticipate those services will continue to serve us well. We do not believe there will be any additional requirement at public cost if we are allowed to move the business into a separate but adjacent building. The business is a benefit to the economic welfare of our community. I generate income from the business. I pay taxes to the City and to the County. It brings money into the community. Nothing will change there." Approximately 100 children take lessons from her every week. It has been more or less than that in the past. She does not advertise. She takes whoever comes. She does not hire any employees or assistants. Her children help her with whatever she needs. She teaches different groups of children at different times. She overlaps classes so there is never one class leaving at the same time another class is coming. A lot of kids come on the school bus after school. In the mornings parents drop children off at 7:30 A.M. for class, and when class is over they get in Johnston's car and Terri takes them to school. She observes all the regulations pertaining to the operation of a home business as required by the City of Ammon ordinances. With the exception of moving the business into an adjacent building, she will not change the manner in which the business is conducted. She would be happy to have the Board of Adjustment condition a Special Use Permit on the requirement that she continue to comply with the ordinances regarding a home occupation except as to moving the location. She has talked to her neighbors about using an adjacent building for the business. She supplied the Planning and Zoning Commission with a statement that had signatures of the neighbors. She tried to get one person from each home on her street and any property owner that abuts up to her lot on the back. Some of the City Council Meeting, September 6, 2001 - Page 4 neighbors are concerned that, if a permit is granted, a precedent will be set which will ruin the neighborhood. Others may have an idea similar to Terri's. The City Council has the opportunity to review each application and make a decision. Each application should be decided on its own merit and not whether some one has or has not done the same thing in the past. It has been very convenient to run the business out of her home. She is with her children. It is convenient for the people who come to her. She can earn an income and teach girls. There are a lot of girls who can not afford to go to more costly gyms. It has worked out well for a lot of people. She intends to keep the classes small because she has to have hands on for gymnastics. If she is able, she plans on teaching until her youngest child leaves home in about twelve years. After that the building will probably become a shop for her husband. She would appreciate it if she can have approval so they can complete their plan for their home by putting in a building and getting the yard landscaped. She called for questions from the Council. Councilmember Folsom: You said you were teaching approximately 100 kids now and it has been more. What is the more? Probably 110 or maybe a little over 110. Councilmember Folsom: When you talked about parking and how being able to do the front would alleviate some of the parking situation, I'm interpreting that to mean you have parking problems? Parking has been mentioned. However, I don't feel there has been a parking problem. I have talked to the people who come, and they do not seem to think so either. If someone has concern with parking, then that is what we would do about it to make sure no one does have a problem. Berrys were at the Planning and Zoning meeting and they said they did not even know she had a business. Berrys live right next door on the driveway side. It can't have been too bad. Councilmember Folsom asked for a clarification of when classes are taught. She does one class each morning on Monday through Friday. Then she teaches on Mondays and Wednesdays. When she first started teaching, she taught four afternoons a week and then she cut back to three. Now she tries to keep Tuesdays and Thursdays open for her children's activities. She teaches classes in the afternoon after school until about 6:30 P.M. She has taught in the garage for about three and one-half years. She taught there before they moved in. The landscaping has not been done because of other inside priorities. They want to use the topsoil from the pit, which will be in the building, to fill in the yard. The pit is a big hole in the gym that students can tumble into. The pit is one reason for a separate building. City Council Meeting, September 6, 2001 - Page 5 The minutes show that Terri applied for a home occupation permit May 21, 1998. She moved into her house on Georgia Lane the first part of 1999. Chris Blower, 3795 Georgia Lane, lives a few houses down from Terri on the north side of the street. She understands a City Council is allowed to issue licenses, Special Use Permits, etc. That is the Council's job to weigh everything. The protective covenants are private issues. Terri wants to build a building in her backyard. That is great. Other residents of Georgia Lane have buildings in their backyards. She read from the Barbara Jean Estates protective covenants and/or restrictive covenants about having a building in their yards. Every person who purchases a lot in the Barbara Jean Estates has this covenant, and they agreed to abide by the words of the covenant. Item No. 2 on the front page reads under use of land, cost, frontage "none of said land or fraction thereof shall be improved, used or occupied for any purpose other than private, residential purposes." Taking your home business and putting it in your backyard does not seem to be a private, residential purpose. It is a business. If the City grants a Special Use Permit for Terri, it puts the residents in an awkward situation. The only way the residents can defend their private covenants is to go through a lawsuit. She asked the City Council to take into consideration the wording of the restrictive covenants. Chris Blower had her signature crossed off the petition submitted to the Planning and Zoning Commission at their meeting. She originally signed the petition not realizing about the covenants. They need to keep their covenants in tact and the integrity of the neighborhood in tact. It is not neighbor against neighbor. It is issue against issue. It puts the residents of Georgia Lane in an uncomfortable situation. Council member Folsom asked Chris Blower a question. Terri has mentioned there has not been a parking problem. You live a little ways down from Terri, have you or have you not had a parking problem? Where I am at, I have not. Ray Berry, 3740 Georgia Lane, lives next door to the Johnstons. He had prepared a letter stating several reasons why they are against the request. The letter is attached to these minutes as Exhibit A. Mr. Berry did not address the first reason because Chris Blower covered that. During the Planning and Zoning Commission meeting a petition was presented with names of residents where at least one of the spouses signed. Berrys did not see the petition at that time. Since that time, they have become aware of at least two families where one spouse signed and the other one refused to sign. It is not a clear indicator that everyone is in favor. Also since then, some of those who signed said they did it because of what was told to them by Terri Johnston. They now believe that the information or the intent was misrepresented to them at that point. City Council Meeting, September 6, 2001 - Page 6 Council member Hall asked for names or numbers? Dixie Cutforth said that. Phil Affleck said that, and he has prepared a letter, which he has asked Darlene Wenczel to read because he could not be at the meeting. The issue is whether or not this commercial venture is a legitimate cause to override the existing zoning ordinances and protective covenant restrictions or rather that the requester has enough friends or customers to make it a popularity contest. Mr. Berry read the letter to point out the other reasons for their objecting to the request. Council member Folsom asked Ray Berry if they had any parking problems. He answered Yes. There have been several occasions where customers were parking on Berry's lawn. There are no sidewalks. The street is narrow enough and to get off the street people park on the lawn. Johnston's just have mud in front of their house in the winter because there is no grass. To get off the street it makes less mess to park on the lawn. At the Planning and Zoning meeting it was said their teenagers' friends come over sometimes and they park on the lawn. There is a difference between guests parking on your lawn and your neighbor's customers parking there. It has been stated that Berrys did not know that it was a business. It is not that Berrys did not see it was there, but no one ever told them that it was an official licensed business. He knew there was gymnastics there, but he did not know it was a licensed business with a home occupation permit. Darlene Wenczel, 3720 Georgia Lane, stated she felt personally that you do not mix commercial and residential. Once you allow it, even though this is a good business, what are you going to do with a bad business? She read the letter from Phil and Sharon Affleck. (Exhibit B) Councilmember Bean asked Darlene Wenczel if she signed the petition. "I did not." Were you approached to sign the petition? "I was." Were you told similar to Mr.Affleck that the size was 25? "To be honest I can't remember the numbers. I was told that it would not increase in size from what it is now." Councilmember Folsom asked what else Terri told Darlene Wenczel. Probably the big thing she was told was that Terri already had a business and that she would continue to have this business. There was nothing to do about the fact that she had a business. She just wanted to build a big building. She was told "the reason I did not sign it was because I didn't think residential and commercial areas were a good idea. I want to sell my home in a few years and to get as much out as I can. I told her that I did not want her business to keep it from being sold." Council member Folsom also asked about parking. Parking has not affected Wenczels but the Berrys have expressed that it has affected them. City Council Meeting, September 6,2001 - Page 7 Council member Bean addressed a question to Terri Johnston. There are two signatures on the petition that he did not recognize. One signature is from Nikki Gillins. He wanted to know where they live. Terri explained about the signatures. Ivy Berry, 3740 Georgia Lane, seconded what her husband said. Johnstons first approached Berrys when she and her husband were on their way out of town. Ray told Ivy that Terri just came by to tell them that they are building a building behind their house so they can house gymnastics. It did not matter whether the Berrys sign or not because the City has already given permission to do it. The second time was when Ray was doing something on the lawn and Johnstons asked him when he got through to come talk to them. They did not go talk. Ivy Berry's concern was that people think the City has already given permission. She understood the building is to be around 2400 to 2500 square feet. That is bigger than any house on the street, and that is way too big. The City has the right to grant the request. However, if you do it for one person, you need to do it for others. The reasons they moved out of the city was to live in a neighborhood with no commercial. We need to be a city and to have rules and regulations. She does not want to live in a business park. A home occupation permit should stay in the house. The Council has an awesome responsibility to decide, but they should consider the integrity of the neighborhood. Mayor Ard asked for a report from the Planning and Zoning Commission. Karen Anderson, Vice Chairman, reported that the Commission voted four against recommending approval and five in favor. The Chairman did not vote, but if he did say that if he voted, he would have voted against it. So the vote was basically split five to five. Their official recommendation was to approve the Special Use Permit. In addition there was a second vote that recommended stipulations. This should be approved for a three- year period only and to be evaluated after three years. A privacy fence should be required from the front of the house to the rear of the proposed building. There would be no employees except for family members living in the home. Karen added that it might be useful to include a little bit of the discussion involved. Planning and Zoning had some discussion over whether this was a special use or what kind of a permit this was. She thought they narrowed it down to a Special Use Permit for either commercial or school depending on how viewed. That was probably the reason why the split in Planning and Zoning. Those who looked at it as a school thought it might fit in a residential area. Those who looked at it as commercial did not think it would fit in a residential area. Those who voted against reviewed the list of reasons for granting a Special Use Permit the same as Mr. Berry read. The Commission wondered if it met reasons 2, 3, and 4. They tried to decide whether or not it was disturbing to neighbors. There was also concern, if the permit was granted, that it would set a precedent for granting others. Basically it is against the ordinance in Ammon to have a business in a residential area. If all the neighbors do not agree should the City grant the request. The Commission also wondered if Terri was currently within the realms City Council Meeting, September 6,2001 - Page 8 of a home occupation permit because a garage is most likely more than 25% of the living space. Council member Crandall interpreted that, if you have a building equal to the size of the home and that home is used for a business enterprise and you have a 25% limitation, it would seem we are already in violation of a home occupation. Teresa Sturm, an attorney with Hopkins, Roden, Crockett, has been working with Todd and Terri Johnston for a number of years on multiple different issues. Johstons asked her to help them with the Special Use Permit. The Planning and Zoning Commission heard this request. It is important to correct what may have been a misunderstanding about what happened at the Planning and Zoning meeting, and she hoped records were kept. There were actually two votes made. The first motion had to do with refusing the Special Use application. That motion failed because it did not have a sufficient number of votes and that motion was the one addressed by Mr. Maeser when he said, "I'm glad there is not a tie so I don't have to vote." The second motion was brought by Mr. Murray. That motion stated, "I move that we forward the recommendation for approval to the City Council of the Special Use Permit. I further recommend that this be re-evaluated in three years to be certain that Terri continues to comply with all other aspects of the home occupation ordinances. I would suggest that the parties be requested to do privacy fencing to the rear of their building. I would recommend that there be no employees or a verification that there are no employees other than immediate family members and I would also suggest again that the parties consider privacy fencing." There were five Yes votes to that motion. Mrs. Anderson voted No. Mr. Maeser abstained. As this Council is well aware, an abstention is not a No vote. It is not a Yes vote. It is a voluntary withdrawal from participation in the process. Therefore, the record should accurately reflect the report on the recommendation for accepting this application for a Special Use Permit was 5 Yes and 1 No. It is very important that be clarified. Five members of the Planning and Zoning Commission expressed positive support recognizing that changes will result from a Special Use Permit but the changes are not necessarily bad changes. Terri does not plan a large business. She prefers to operate as a home occupation permit or as a neighborhood business. She is interested in maintaining a beautiful neighborhood. Terri has no problem with conditioning a Special Use Permit to require that she comply with all of the rules and regulations regarding a home occupation, except she would prefer to run her occupation out of an adjacent building as opposed to running it out of a building attached to her home. City Council Meeting, September 6, 2001 - Page 9 There has been a lot of misconception about the petition that Terri sent around. "If people were confused by what Terri intended or what Terri was doing when she sent the petition around, we apologize." It was noted there were none of the people present nay saying. If it was a huge concern, they should have probably come to this meeting. The purpose of the meeting is to appear, clarify misconceptions, clarify confusion, and state what you believe to be the correct manner in which this decision should be made. There was a lot of conversation at the Planning and Zoning meeting, and there have been considerable conversations at this meeting, about setting a precedent. That is a legitimate concern for individuals in the neighborhood. Ms. Sturm cited from Idaho Code 67-6512, which is a law of the State of Idaho applicable to municipalities. It says quite specifically that a Special Use Permit shall not be considered as establishing a binding precedent to grant other Special Use Permits. In layman's terms, because you grant one Special Use Permit, you can not be forced to grant any others. It is not binding on you. It does not force you to grant additional Special Use Permits. The City of Ammon ordinances very clearly state that it is at the discretion of the Board of Adjustment whether a permit will be granted or not. It is discretional with this group. Each application for a Special Use Permit is discretional and should be determined on its own merit. You have the protection of the laws of the State of Idaho that you can not be forced to grant another permit simply because you have granted one in the past. If that were the case, you could dig up any number of Special Use Permits that have been granted by this very Board in the past. You could say, if you did it once, you have to do it again. That is not a legitimate argument. The City Council is authorized by Title 10, Chapter 9, Section 8 to grant an application in whole or in part and with whatever conditions believed to be appropriate under the circumstances. Discretion means you will not act arbitrarily. It means you will act within the bounds of a reasonable individual request making a reasonable decision. "We expect a reasonable decision will be made by this Board tonight. We expect that you will not act arbitrarily. We expect that you will consider factors such as stated in your zoning ordinances 10-1-2 that you are to promote orderly growth and development in the City of Ammon, you are to reduce congestion and waste in the City of Ammon, and you are to foster industry in the City of Ammon. Those are the goals of the ordinances. Those are the goals this Board is to pursue in making this decision. Actually I have read the Comprehensive Plan. It is very long and does not make a lot of sense if you do not know too much about city planning. However, the Comprehensive Plan does include much of the same language. The purpose of the City and the purpose of the Board of Adjustment is to promote organized growth and to allow individuals to live in the City and pursue those means they believe are reasonable under the circumstances. Since you have crossed the line and allowed home occupations, I don't believe, at this point, that you can make any decision based on the fact that you do not want any businesses on Georgia Lane. It is too late to do that. The ordinances already indicate that a permit for a home occupation can be granted in the RPA zone. The protective City Council Meeting, September 6, 2001 - Page 10 covenants for Barbara Jean Estates are contrary to what the City of Ammon ordinances provide." Attorney Anderson advised that the ordinances are not controlled by the covenants. They are separate and independent and mutually exclusive. There is an action for the covenants even in spite of what the ordinances say or vice versus. Attorney Sturm added that would be a private action by members of Barbara Jean Estates. If they choose to enforce their covenants, they would certainly have the opportunity to do so. The use Terri Johnston proposes to make is not inharmonious with the neighborhood use. It is there. It is in place. There were several statements made before Planning and Zoning that folks did not even realize there was a business operating out of Terri's garage. This is an indication that she has not been disturbing the peace a great deal. What she would like to do is create an area where she can teach gymnastics. She wants an area where she can take some of the more gifted gymnasts that she teaches and help them improve their skills. One way to do that is to build a pit. A pit is a big hole in the building filled with foam rubber and you do tumbling routines into the pit. It keeps children from getting hurt. She would also like to spread out a little more so they can do more complicated tumbling routines. She has no objections to conditioning a Special Use Permit on her not increasing the size of her business or not increasing to make it a commercial enterprise with traffic coming and going. "We respectfully request that you grant the Special Use Permit and you may condition it as you believe appropriate under the circumstances. We thank you very much for your time." Chris Blower stated that she understood the protective covenants are a private issue, but if a Special Use Permit is granted, it puts the residents in that awkward bind where we have neighbor against neighbor. It makes it uncomfortable. She urged the Council to please consider that type of situation. There are other neighbors against, but they were afraid to come because they did not want to harbor the bitter feelings of neighbors. The bitter feelings still exist because of the prior problem on Georgia Lane with the bridle path. It has taken a long time to go away. Council member Bean had a question for Terri. If you were to get this Special Use Permit and move into the building, do you still consider it as a home occupation? Yes. Tom Hunsaker, 2925 Carolyn Lane, remembered the debate they had in Planning and Zoning. They talked about whether or not this was a home occupation. Our ordinance and the state ordinance from which ours was taken both specifically state that a home occupation can take no more than the equivalent of twenty-five (25) percent of the ground floor the residence. A pit can not be held in something that small, so it goes beyond the realm of a home occupation permit. It has to be a Conditional or Special Use Permit. City Council Meeting, September 6, 2001 - Page 11 Council member Bean asked Terri if the building was going to be used for commercial purposes only. The primary purpose of the building is commercial. Mayor Ard called for more questions. There were none. The Public Hearing was closed, and the meeting was opened for Council discussion. Councilmember Hall stated the Planning and Zoning Commission determined this could not be a home occupation because it was out of the house and included much more than twenty-five (25) percent of the living area. He asked if Attorney Anderson agreed. Attorney Anderson agreed that the request would not meet the space requirement of a home occupation. It would need to be considered as a Special or Conditional Use Permit. Council member Bean reviewed the tapes of the May 1998 City Council meeting when the original home occupation permit was granted to Terri Johnston. A comment was made that a building cannot be built on the outside. There were concerns at that time if it really met the home occupation requirements. No where did it indicate in the discussion that there would be 100 or 110 students. Council member Hall said he was supposedly the person Terri Johnston talked to before Johnstons purchased the property for their home. He did not deny the conversation, but he did not recognize it. He couldn't believe that he said a separate building would probably pass, based on his opinions in the past. This information was presented to clarify the person that Terri talked to. Councilmember Bean said, if a vote were to be taken, he would probably vote no because it does not meet the true definition of home occupation. According to C.C. 10-7-8 "a home occupation shall mean any occupation or profession which may be conducted within a residential dwelling, or an allowed appurtenant building." C.C. 10- 9-8 (C), which talks about Conditional Use Permits, specifically states "the Board may require the written consent of all property owners who own property contiguous and adjacent to the subject property and may require the notification of all land owners." It is only good practice on the Council's part that they have the consent of all property owners that are at least contiguous or adjacent. In this case, we do not have the consent of the Berrys or the Wenczels. There are other residents, who do not consent, but they are not contiguous or adjacent, however, they are within the neighborhood. Also, it does not meet the square footage. In determining footage, we have always used the living area on the main floor excluding the garage. According to Terri on the tape, the garage is 912 square feet and the main level of the house is 1300 square feet. So we are significantly over the 25% in the permit already granted. Schools may City Council Meeting, September 6, 2001 - Page 12 be allowed by Conditional Use Permit in any zone, but they are to be public or parochial in public and semi-public use. The ordinances do not show that the Council has authority to issue a Conditional Use Permit for a commercial business in a residential zone. It has been indicated this will be a commercial building. These are the reasons for voting No. Councilmember Folsom also listened to the tapes. Terri mentioned that she had been teaching in the soccer arena. Her main concern was to be able to be closer to the children in the garage. Councilmember Folsom had real conflicts because she does not feel it is harmonious with the RPA zone. It is not fulfilling the purpose for which the original purchasers purchased their land. She agreed with Council member Bean in voting No. Council member Hall agreed with Councilmember Bean and Council member Folsom. It has been indicated that there are some residents in disagreement and some that has signed the petition but is no longer in favor. People want to be nice. They do not want to have a conflict in the neighborhood. The zoning ordinances of the City protect the people. The decision should be made on what the ordinance says and then no one has to take sides. This is in the RPA zone. Within his tenure on the City Council, home occupations were once not allowed in the RPA or RP zones. It is the Council's responsibility to administer the ordinances strictly in the way they are written, unless there are extenuating circumstances. Councilmember Bean moved to deny the Special Use Permit for Terri Johnston, 3760 Georgia Lane, for the reasons stated by Council member Bean earlier and to authorize Attorney Anderson to issue a findings of fact and conclusions based on those conditions. Councilmember Hall seconded the motion. Roll call vote: Bean - Yes; Hall- Yes; Crandall- Yes; Folsom - Yes. The motion to deny carried unanimously. Karen Anderson reported on the recommendations of the Planning and Zoning Commission from their meeting of September 4, 2001 . The Commission recommended approval of the rezone from R-3A to C-1 for property on the corner of Midway and East 1 ih owned and planned for development by Eastgate Drug. Two requests for rezone of property in front of Kmart were scheduled for public hearing, but the hearings were not held because the requesters were not owners and did not have owner consent. The request for rezone from R-1 to R-1A and from R-1A to PB in the Briarwood Addition was recommended for approval with two conditions. In their sitE3 plans they are to address buffering because there is residential next to the professional business. Also, they need to adjust some boundaries because one lot is part PB and part R-1A. The Fifth Amended Plat of the Ricks' Farm was recommended for approval, and they asked that the site plan address access on to City Council Meeting, September 6, 2001 - Page 13 Sunnyside Road because the approved access is so close to a busy intersection. An acceleration and a deceleration lane may help to solve the problem. On the Preliminary and Final Plat of Trailwood Village Division No. 2 there was a split vote of four to four. The problem was that a lot on the cul-de-sac is zoned part R- 1 and part R-2A. At a prior meeting, Planning and Zoning asked the owner/developer to request a rezone to R-1 because three sides of the cul-de-sac are zoned R-1, but the owner does not want to change the zoning from R-2A. (Exhibit C - Motion from September 4, 2001, Planning and Zoning Commission Meeting) The City Council reviewed the recommendations of the Planning and Zoning Commission. Regarding the request to rezone the Eastgate Drug property from R- 3A to C-1, Councilmember Crandall moved to waive a second hearing before the City Council, to accept the recommendation of the Planning and Zoning Commission to approve the rezone, and to authorize Attorney Anderson to draw up an ordinance to change the zone. Council member Hall seconded the motion. Roll call vote: Crandall - Yes; Hall - Yes; Bean - Yes; Folsom - Yes. The motion carried unanimously. Jay Johnson, developer, explained the request for rezone in the Briarwood Addition from R1 to R-1A and from R-1A to PB. At first the request was to rezone a lot to PB for a proposed Post Office, but it was recommended to include a bigger section along Ammon Road and to clean up the zoning and to extend the R-1 to R-1 A along the proposed John Adams Parkway. The Council was oriented to the exact area. Karen Anderson explained the area to be buffered. There was one little corner that needed to be in the R-1A zone rather than the PB zone. The engineer for the project was asked to prepare an amended legal description to be approved by Attorney Anderson and Engineer Manwill to assure that the zoning is established properly. The request was initiated in case there is a possibility for a Post Office in Ammon that there will be a place ready for it. Council member Hall moved to waive the second public hearing on the request for rezone from R-1 to PB and for R-1 to R-1A in Briarwood, to accept the recommendation of the Planning and Zoning Commission to approve the request with the change shown on the map that the PB zone goes to the south border of John Adams Parkway, that the R-1 zone be changed to R-1A on the north end of the property as indicated by the map, and to authorize Attorney Anderson to prepare an ordinance for the change. The motion was clarified so that the R-1A goes to the south side on the west end. Councilmember Bean seconded the motion. Roll call vote: Hall - Yes; Bean - Yes; Crandall- Yes; Folsom - Yes. The motion carried unanimously. Alan Cunningham of Mountain River Engineering presented the Fifth Amended Plat for Ricks' Farm. This plat covers the south end of the Teton Spectrum property on the corner of Sunnyside Road and Hitt Road. The Planning and Zoning Commission City Council Meeting, September 6, 2001 - Page 14 recommended approval. The Commission had concerns about the traffic and the Engineers are working to try to simplify the traffic pattern. This is a portion of the previously recorded Ricks' Farm plat. Plans are to develop the property with a convenience store. Mountain River Engineering is providing the improvement drawings for Ann Avenue, but they will not be doing the site plan. Council member Bean suggested that the site plan be reviewed with the developer before it is approved. There is some frontage on Hitt Road that needs to be addressed and ironed out. Also, he had some concerns about accesses on Sunnyside Road. The Planning and Zoning Commission discussed acceleration and deceleration lanes, but they have to be part of the site plan. The developer plans to develop Ann Avenue. AI Cunningham explained the Fifth Amended plat separates a lot. Councilmember Crandall moved to approve the Fifth Amended Plat of Ricks' Farm, Lot 2, Block 4. Councilmember Bean seconded the motion. Crandall- Yes; Folsom- Yes; Bean - Yes; Hall- Yes. The motion carried unanimously. Engineer David Benton presented the Preliminary and Final Plat for Trailwood Village Division No.2. Council member Bean asked for clarification. When a lot is split by zone which zone does the lot take? Do you take the most restrictive zone or the zone of the largest portion? This brought about a discussion. In the Trailwood Village Division No. 2 there are some lots with split zone. The Grobergs, the developers, do not want the property rezoned. They are ready to move ahead, and they believe what they have planned will fit on the lots with two zones. Council member Bean said he did not have a problem with approving Groberg's plan and then develop a policy of how to treat such lots in the future. Ron Folsom stated that the Planning and Zoning Commission recommends that a lot have only one zone. In the essence of time, Grobergs agreed to go ahead with development, but at a later date to clean up the zoning so there is only one zone per lot. Council member Hall moved to approve the Preliminary and Final Plat for Trailwood Village Division NO.2 as platted with the stipulation that only Lots 55 and 56 of Block 4 would access on John Adams Parkway. Councilmember Folsom seconded the motion. Roll call vote: Hall - Yes; Folsom - Yes; Crandall - Yes; Bean - Yes. The motion carried unanimously. Jeff Freiberg of Harper Leavitt Engineering explained that, when he last attended City Council meeting, we discussed the proposed Wal-Mart property and revising the Oak Ridge plat to exclude Chasewood Drive heading to the west. The Council asked if Chasewood could be stubbed in to the back of the Wal-Mart property. Jeff Freiberg presented revisions to the plat to show how the developers propose to stub Chasewood in to the back of the Wal-Mart property. Tom Arave and the Wal-Mart City Council Meeting, September 6, 2001 - Page 15 people would prefer that it be a private drive. Engineer Manwill did not have a problem if it was a private drive or a public drive. Wal-Mart would maintain it as part of their parking lot. This would be the First Amended Plat of Oak Ridge. The Council was oriented to the plat. Council member Bean moved to approve the First Amended Plat of Oak Ridge Division No.1. Councilmember Hall seconded the motion. Roll call vote: Bean - Yes; Hall- Yes; Crandall- Yes; Folsom - Yes. The motion carried unanimously. Diedre Smith, 3600 Stonehaven Drive, expressed concern about the students crossing Sunnyside Road from the Stonehaven Addition to Hillcrest High School and Sand Creek Middle School. Her daughter recently had a near accident while attempting to cross Sunnyside Road when she was coming from Sand Creek Middle School. A driver came around cars stopped for the crosswalk and nearly hit her. There needs to be a safe route for students from the Stonehaven Addition to get to and from school. The sixth, seventh, and eighth grade students are especially at risk because they are not bussed. Elementary students are bussed. The Council discussed the issue at length and considered safe options. Mrs. Smith has tried to figure out a better way, but she did not have a solution. She plans to start a petition of the residents. Possible solutions discussed were flashing lights, better signage, using crossing flags, and crossing guards. Randy Waite, Ken Lembrich, Elaine McGary, Karen Anderson, and Tom Hunsaker gave input. Engineer Manwill advised, if the crossing is signalized, that is where all the pedestrian crossing should be because it would delay traffic. There should be only one crossing area not three. Mrs. Smith was encouraged to take her concerns to the School Board. The School Board has stressed safety in all the Owen Street planning, but it seems there is a bigger safety issue now that needs to be addressed. The residents of Stonehaven feel like the safest route would be bus transportation. Mrs. Smith plans to attend a School Board Meeting, and she will come back to a City Council meeting to report and/or address the issue further. Ken Lembrich, 2640 Salmon Street, had somewhat the same concerns as Deidre Smith. He is interested in safety reasons since the changes on Owen Street. He believes the School Board and the City Officials need to sit down to hammer out the details. The turn around has been taken out at the end of Owen Street so now people who want to drop their kids at the High School from Owen street are directed to the Middle School area for drop off. Then High School kids have to cross the street and walk through the buses. Also, the buses can not go down Carolyn Lane although it is twice as wide as Western Avenue and it has sidewalks on both sides. Council member Bean explained we are dealing with traffic issues and the traffic study indicated the action taken. Engineer Manwill pointed out that the Carolyn Lane intersection was causing the problem. Before Carolyn Lane went in, Western Avenue was used consistently by the buses. The School is not allowing cars to go down to the LDS City Council Meeting, September 6, 2001 - Page 16 Seminary cul-de-sac. Jay Johnson explained about the traffic patterns by the Seminary. Ken Lembrich's concerns developed from problems he experienced with dropping his High School student off from Owen Street. Drop off issues and enforcement ideas were discussed. Council member Bean agreed to discuss the issue with Roger Hill of the School District. The School District appears to not be following through on solutions agreed upon during the Owen Street project. Concerns have been expressed to the City about the conditions of the property owned by Richard Birch at 2865 South Ammon Road. Mayor Ard explained Richard was invited to meet with the City Council to talk about his house, how he is progressing on construction, the condition of the property, and his plans. Richard stated he had brought about 55 or 60 loads of dirt in this summer. It is stock piled around, and he is paying on it. His logs for the house are almost paid for. He is finished with the logs except paying for them. He has the north side of the roof to put on. He has not been able to get a loan because of a glitch in his credit. He has it worked out, but it will be a while before anyone will extend credit to him. He was hoping to do some landscaping this fall or in the spring. He has about enough dirt to create a berm and he wants to plant trees or put up a fence for a privacy buffer. He has loaned part of his property to Kvarfordts to use for pasture. He has traveled a lot this summer, and he has one more show to do in Salt Lake City. When he finishes the show, he wants to do some clean up. He asked the Council to give him another two or two and one-half months and then touch base again with him. Hopefully there would be some improvements by then. He wants to work with the City the best way he can. He appreciates the patience extended to him. He is tired of the deal, and he would like to see some improvements. Council member Bean explained there are two issues, which have been brought to the City. One issue is the extended length of time it has taken to build. The second issue is the property. If the property can be cleaned up, the first issue may go away. Richard lives in the basement. The sheds will be staying until they can be replaced. He would like to do some berms, fencing, or trees so the public doesn't see. Councilmember Folsom wondered if replacing the storage units would not be cheaper than the berms, fences, etc. This may be more appealing to the citizens who have complained. Elaine McGary commented on the long period of time he has been working on his project. Richard Birch responded that he is a 100% disabled VietNam combat veteran. "What you see, to some degree, is a product of that. I have a legitimate disability. You enjoy your freedom at somebody else's expense and that is what you are seeing." City Council Meeting, September 6, 2001 - Page 17 The Council asked Richard to come back in two months. He does not do much trapping any more. He still sews the furs, and that is what he takes to shows. Jay Johnson offered to send equipment and an operator to help him spread the dirt. Mayor Ard opened the Public Hearing to consider the proposed increase in swimming pool fees for the 2002 season and the Annual Budget for Fiscal Year 2002. The tentative budget was approved by the City Council on August 23, 2001. Notice of the Hearing was published in the Post Register on August 30 and September 5, 2001. (Exhibits D and E) There was no public input for or against. The Public Hearing was closed. Council member Bean explained that the budget has not changed in terms of total figures since it was tentatively approved and published. We may need to adjust some line items. Councilmember Bean moved to approve the increase in the swimming pool fees as proposed. Council member Hall seconded the motion. Roll call vote: Bean - Yes; Hall - Yes; Crandall- Yes; Folsom - Yes. The motion carried unanimously. Council member Bean moved to accept the budget as proposed for the fiscal period October 1, 2001, through September 30, 2002 (2002 FY), to authorize Mayor Ard to certify the property tax to the Bonneville County tax roll, and to authorize Attorney Anderson to prepare the Annual Appropriation Ordinance. Council member Crandall seconded the motion. Roll call vote: Bean - Yes; Crandall - Yes; Hall - Yes; Folsom - Yes. The motion carried unanimously. Engineer David Benton distributed copies of the computer analysis generated from the water system study. It was determined that we have a sufficient water supply. Generally our distribution system is adequate. There was a problem getting adequate data to put in. It was recommended that a flow meter and recording device be installed on Well NO.6. Well NO.6 pumps into a reservoir. During the study, Well NO.7 and Well NO.8 were down for a while. Well No. 8 has installed an automatic recording chart to keep track of peak day demands and averages. The flow charts need to be changed on a day to day basis, but this has not been done. The state law requires a flow meter on all wells. This is not so essential on smaller wells other than to know the total usage and/or the efficiency of the pump. Assumption was based on average demands. No pump curves were available. The known capacity of all the pumps was put in the charts, statistical use was put in, and an average use of 1.5 gpm per residence was used. Based on this information there was no problem serving the whole City properly. City Council Meeting, September 6, 2001 - Page 18 A situation has developed regarding extending waterlines to Quail Ridge. A reservoir put out there at 4900 feet elevation could be filled with pumps we have in town. Using Well No. 8 on a basis of 4725 feet elevation the variable pump would keep the pressure up at 4900 feet elevation. Mountain River Engineering has done a good job of designing the system. The pressure in town will not serve the upper edges of Quail Ridge. The developer proposes to put a well up there and a pressure tank. This will raise the pressure 100 feet above the 4900 feet elevation to serve Quail Ridge. The City will provide backup. Engineer Benton discussed distribution lines and made recommendations for new developments. Line sizes are recommended to meet present and future demands. Engineer Bill Manwill said these recommendations need to be specified in the report in an understandable form. All the maps and information is to be provided on electronic data. This was part of the agreement. The City Council needs a summary of each analysis in laymen language. Councilmember Hall moved to approve payment of 90% of the billing for the water system study ($16,400 X 90% = $41,760) based on the delivery at this meeting subject to the City receiving the electronic data for all the information, particularly the maps. Councilmember Folsom seconded the motion. Roll call vote: Hall - Yes; Folsom - Yes; Bean - Yes; Crandall - Yes. The motion carried unanimously. As soon as the electronic data is received and Engineer Manwill checks the information, the payment can be released to David Benton. Council member Folsom explained the status of the liquor licenses in possession of Dan Ruddell. Mr. Ruddell was given a ninety-day extension by the State to put the licenses in use. Now he has been granted another sixty-day extension or an appeal. There is a difference between an extension and an appeal. He has the right to an appeal. However, if they granted him another extension, he can appeal after the second extension. Ron and Leslie Folsom plan to talk with Attorney Anderson concerning more research about our legal rights and the possibility of writing a letter to say we are not going to put up with it any longer. Ron Folsom clarified what has transpired. As a result of Representative Lee Gagner's involvement, a letter was received from the Attorney General's office to outline the facts on the liquor licenses for City of Ammon. In 1980 there were 4669 people in Ammon, and there were four available liquor licenses. In 1990 there were 5002 people in Ammon, and there were four available liquor licenses. In 1994 there were 5804 people, and there were four available liquor licenses. In 1999 there were 6274 people, and there were five available liquor licenses. The letter also stated who held the licenses.