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HomeMy WebLinkAbout1988-12-12 41 MINUTES OF THE MEETING OF THE CITY COMMISSION BOZEMAN, MONT ANA December 12, 1988 ************************ The Commission of the City of Bozeman met in regu lar session in the Commission Room, Municipal Building, December 12, 1988, at 2:00 p.m. Present were Mayor Stiff, Commissioner I Hawks, Commissioner Vant Hull, Commissioner Martel, Commissioner Goehrung, Acting City Man- ager Gamradt, City Attorney Becker and Clerk of the Commission Sullivan. The meeting was opened with the Pledge of Allegiance and a moment of si lence. None of the Commissioners requested that any of the Consent Items be removed for dis- cussion. Minutes It was moved by Commissioner Hawks, seconded by Commissioner Vant Hull, that the min- utes of the regular meeting of November 28, 1988 be approved as amended. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hawks, Commissioner Vant Hull, Commissioner Martel, Commissioner Goehrung and Mayor Stiff; those voting No, none. Mayor Stiff requested that action on the minutes of the regular meeting of December 5, 1988 be deferred for a period of one week. Award bid - Improvements to the Lyman Creek water supply This was the time and place set for the award of the bid for improvements to the Lyman Creek water supply. Acting City Manager Gamradt submitted to the Commission a letter from Sanderson/ Stewart/Gaston Engineering and Surveying recommending that the bid be awarded to Nelcon, Inc., Missoula, Montana, in the bid amount of $633,379.90, it being the lowest and best bid re- ceived. He noted that Director of Public Service Forbes has reviewed and concurred in that I recommendation. The Acting City Manager then reminded the Commission that this project is to be funded through a Depa rtment of Natural Resources and Conservation loan. He noted that the State has previously approved a loan which would cover a portion of the costs; and the City is now seeking authorization to increase the loan to cover all of the costs. He recommended that the Commission award the bid to Nelcon, Inc., contingent upon finalization of financing papers with DNRC. It was moved by Commissioner Vant Hull, seconded by Commissioner Martel, that the bid be awarded to Nelcon, Inc. , Missoula, Montana, in the bid amount of $633,379.90, it being the lowest and best bid received, contingent upon final ization of the financing papers with the De- partment of Natural Resources and Conservation. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull , Commissioner Martel, Commissioner Goehrung, Commissioner Hawks and Mayor Stiff; those voting No, none. Decision - Conditional Use Permit - Suzanne Anderson - allow the operation of a private elemen- tary school on Tract B, Amended Subdivision Plat of Lots 1-12, Block 20, Butte Addition (1422 South Willson Avenue) This was the time and place set for the decision on the Conditional Use Permit requested by Suzanne Anderson to allow the operation of a private elementary school on Tract B, Amended Subdivision Plat of Lots 1-12, Block 20 of the Butte Addition. The site is more commonly located at 1422 South Wi Ilson Avenue. Acting City Manager Gamradt reminded the Commission that the public hearing on this re- I quest was conducted at last week's meeting. He then noted that included in the packet was a memo from the Planning staff addressing the three conditions which were discussed during last week's meeting, as well as a letter of support from Mr. Edward Dratz. He reminded the Com- mission that the public hearing has been closed and that additional testimony is not to be con- sidered. Planning Director Andy Epple stated that Condition No. 5 as recommended by the Zoning Commission requires that the structure be brought into compliance with the appropriate Uniform Building and Fire Codes. He noted that, per Commission request, the staff has researched this condition and determined that a two-story structure cannot be used for a school unless it is one- 12-12-88 42 hour rated throughout or has a sprinkler system. He noted there are a number of other Bui Id- ing and Fire Code-related issues which must be addressed; however, they are more minor in na- ture. The Planning Director stated that the life safety issues addressed in the Uniform Building Code and the Uniform Fire Code are requirements which cannot be overlooked, and recommended that the Commission require that those items be met. He stated that the Bui Iding Official and the Fire Marshal have suggested that the applicant be given an adequate amount of time to ad- I dress these items, noting that to require them to complete the improvements prior to opening of school next fall may be adequate. He then stated that the staff is willing to support the pro- posals to change the requirement for a "crossing guard" to "crossing assistance" and to install a sign which states "no parking during school hours". Commissioner Hawks asked if there are any recommended square footages of open space and school room space per student to use in determining the maximum occupancy possible in the building. Planning Director Epple stated that research revealed standards for preschools and day care facilities, but none for private schools. He noted the only standards uncovered were for occupancy loads, as determined by the Fire Marshal and the Bui Iding Official; and this structure would be adequate for the proposed 32 students. Commissioner Hawks noted that schools are appropriate in the R-2 zone if they are pre- planned; however, he stated that converting a residential structure to school use could cause an adverse impact on the surrounding neighborhood. The Planning Di rector noted that schools are a conditional use in residential districts, which allows for review on a case-by-case basis. He stated in this instance, the proposed use is low-density with a substantia I amount of open space around the facility, which minimizes neighborhood impacts. He noted the No. 1 concern is the safety of the students and the faci 1- ities, as well as pedestrian safety and off-street parking for loading and unloading. Commissioner Martel stated that to bring the structure into compliance will involve sub- stantia I costs. He then asked what risk the City may incur if this application is approved and I the applicants determine that the structure revisions are too costly before next fall. Planning Director Epple stated the staff has reviewed this item and determined minimal immediate risk would be incurred, although no risk should be allowed when dealing with the life safety of children. Commissioner Martel then noted there are other private elementary schools in the commun- ity which should perhaps be reviewed to ensure the life safety of the children. Planning Director Andy Epple stated the staff is prepared to review those private schools to ensure that they meet the same code provisions required for this school. He noted they will also be given the same amount of time in which to comply, if the Commission agrees. Commissioner Martel once again asked about what responsibility or liability the City would assume by allowing schools to remain open which do not meet the code requirements. City Attorney Becker stated it is the City's responsibility to enforce the uniform safety codes. He indicated that Fire Marshal Figgins has stated that this subject school poses minimal risk and, if brought into compliance prior to next school year, should pose no significant liabil- ity to the City. He noted the Fire Marshal has suggested that the applicant be required to in- stall fire extinguishers in every room at this time. Fire Marshal Dan Figgins stated the Uniform Building Code and the Uniform Fire Code contain a provision that as long as the situation does not create a threat to the health of the oc- cu pants, it can continue to exist. He noted that does not address the request to increase the number of students allowed in the structure; however, he feels that to provide a nine-month period in which to complete the necessary work would be appropriate. I Commissioner Goehrung asked if some of the improvements such as another exit from the second floor shou Id be required immediately to ensure the safety of the children. The Fire Marshal indicated the second exit is definitely needed immediately. Commissioner Hawks asked what the maximum occupancy of the first floor would be. The Fire Marshal responded that the Uniform Building Code does not address educational occupancies. He noted there is a requirement for 20 square feet per child for exiting; and the first floor does provide that. 12-12-88 43 Commissioner Martel asked if the Uniform Fire Code provides any specific timeframes for bringing a building into compliance. Fire Marshal Figgins stated the UFC does establish a timeframe for bringing a structure for an existing occupancy into compliance; however, that does not apply in this situation since this would be considered a new use. Commissioner Goehrung noted that a conditional use lapses if the use is vacated for a I period of ninety days. He then asked if this structure would revert to residential use if that occurred; the Planning Director indicated it would. Commissioner Vant Hull noted that the proposed use is a good one; however, she feels the life safety issue must be considered. She further noted that the number of students would be increased substantially under this application and expressed concern that future requests may be made for addi tiona I students, which wou Id have an impact on the neighborhood. She then s ta ted support for allowing the school to remain at 20 students under the existing Conditional Use Permit. Mayor Stiff asked Ms. Suzanne Anderson if she still agrees to the conditions for approv- ai, in light of the above discussion, or if she wishes to withdraw the application from further consideration. Ms. Anderson stated she cannot make a decision on whether she would wish to proceed with meeting the requirements of Condition No. 5 at this time, since she does not know the costs involved. She then indicated she does not wish to withdraw the application at this time, but asked that the Commission take action on it. Mrs. Dratz asked about the requirement for security for an improvements agreement, and the timeframe for that process. Planning Director Andy Epple stated that a financial guarantee in the amount of 150 per- cent of the estimated cost of required improvements not installed prior to filing of the final site plan is required. He noted that in this instance, a financial guarantee would be required within 45 days; and the major improvements are to be installed within nine months. He then stated I that he feels the departure from the standard timeframe is justified because the proposed use already occupies the structure and because life safety issues are involved. Commissioner Martel asked if the school would be viable if the improvements were very costly. Mrs. Lombard indicated they do not know the costs; therefore, she cannot respond at this time. She noted that installation of a sprinkler system could be less costly than replacing the sheetrock; and they may be able to afford that improvement. Commissioner Goehrung asked about the status of the school at the present time. Planning Director Epple stated that under the existing Conditional Use Permit, the appli- cant may operate a school for up to 20 students. He indicated that since the application was submitted after the school year started, the school has been allowed to operate while this pro- cess was being completed. He stated that the staff indicated that no zone code violation would be cited for the school unless it is not successful in this application. Commissioner Goehrung noted that this private school operates as a business. He then questioned to what extent a business is allowed to expand in an area which is primarily residen- tial. He also noted that the conditions will require an extensive amount of cash outlay; and the school would need to operate in that location for several years to make the investment feasible. He stated the staff has indicated that when the Conditional Use Permit lapses, the structure will return to its residential use; however, remodeling of the structure to meet school requirements cou Id extend that reversion process. Commissioner Vant Hull stated the previous requests for private schools have been for a I limited number of students on one floor. She stated she is uncomfortable with the safety of the students and the integrity of the neighborhood because of the number of students involved in this request. Commissioner Martel asked if the existing water service to the structure would support a fire sprinkling system. Fire Marshal Figgins stated that the requirements for sprinkling must be calculated hy- draulic/y; therefore, he cannot respond at this time. He indicated that if a residential sprinkler system would be sufficient, the existing water system may be adequate, but the calculations must be done before a definitive answer is available. 12-12-88 44 Commissioner Hawks noted that during the public hearing, a study concerning the defi- ciency of the sewer line was mentioned. He then asked if the same sewer line sti II exists; Plan- ning Director Epple indicated it does. Commissioner Hawks then reminded the Commission that a request to construct an apart- ment complex on South Willson Avenue was denied several years ago, primarily because of the inadequate sewer line, and questioned if this school would have a negative impact on that sys- tem. I Planning Di rector Epple indicated that the staff did not resea rch that issue when re- viewing this application. It was moved by Commissioner Martel, seconded by Commissioner Goehrung, that, in view of the life safety code concerns for chi Idren, the Commission deny the Conditional Use Permit requested by Suzanne Anderson to allow expansion of the operation of a private elementary school on Tract B, Amended Subdivision Plat of Lots 1-12, Block 20 of the Butte Addition, to 32 children; however, the operation will be allowed for the remainder of this school year for the existing students only. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Martel, Commissioner Goehrung, Commissioner Hawks, Commissioner Vant Hull and Mayor Stiff; those voting No, none. Request for classification of use - bronze foundry in an M-1 district Acting City Manager Gamradt stated that a memo from Planning Director Epple and a statement from Greg Morgan, attorney representing the residents in Block 52 of the Northern Pacific Addition, were included in the packets. He then briefly reviewed the history of this is- sue. He noted that Planning Director Epple initially determined that the requested bronze foun- dry was the same as or so similar as to be considered the same as the manufacture of light con- sumer goods, which is a listed permitted use in the M-l, Commercial--Light Manufacturing, Dis- trict. Subsequently, the property owners in Block 52 of the Northern Pacific Addition appealed that decision to the Board of Adjustment, which upheld the Planning Director's decision. He stated the property owners then requested that the Commission classify the use; but the Com- I mission indicated the Board's decision must be appealed to the District Court. He noted that Judge Olson recently considered the appeal, and voided the actions of the Planning Director and the Board of Adjustment and remanded the issue back to the City Commission for a classification of use. Planning Director Epple stated that, pursuant to Section 18.06.050 of the Bozeman Mun- icipal Code, the Commission has the authority to determine whether a particular use may be in- terpreted to be the same as a listed permitted or conditional use, reviewing four specific cri- teria. He stated this issue arose as a result of an application for a building permit from Bozeman Bronze to construct a bronze foundry within the M-l zone. He indicated the proposed structure is 3,000 square feet with a 300-square-foot side structure to house the furnace. He noted the site plan shows vegetation in the front of the structure; and the small dwelling on the property is to remain. The Planning Director stated that a bronze foundry is not a speCifically listed permitted or conditional use in the zone code, but that manufacturing of light consumer goods is. He then indicated that Bozeman Bronze is currently located at 610 North Ida Avenue, which is one block from the proposed site and within the M-l zone. He noted that a building permit was formerly issued by the City for that site. Mr. James H. Goetz, attorney for the appl icant, submitted to the Commission a written statement concerning this issue. He then cautioned the Commission that this is not a zone change hearing, but is a request for classification of use. He noted the subject property is zoned M-1, Commercial--Light Manufacturing; and Mr. Campeau relied upon that zoning when he I purchased the subject property. He further noted that at the present time, there is no petition pending to change the zoning designation, even though the residents in that block have the right to initiate a petition under Section 18.68.010 of the Bozeman Municipal Code. Mr. Goetz reminded the Commission that a few years ago, the staff proposed rezoning of Block 52 of the Northern Pacific Addition from M-l, Commercial--Light Manufacturing, to R-3, Residential--Medium-density, to more accurately reflect development of the area; however, the residents and property owners protested that change and stated they would consider rezoning to R-l, Residential--Single-fami Iy, Low-density. He noted that to rezone the property to R-l 12-12-88 45 would constitute spot zoning since there is no other R-l zoning in that area; and that is not le- gal. He noted that many of those who protested the R-3 zoning are those who are protesting this request for classification of use, indicating that excerpts from that testimony have been in- cluded in his written statement. Mr. Goetz stated that Section 18.34.010 of the Bozeman Municipal Code specifically states, II Residences shall not be permitted in this district. II He indicated, therefore, that all res- . . . I idences in this district are non-conforming uses, which cannot be replaced if they are substan- tially destroyed or impaired. Mr. Goetz then presented to the Commission a large map of the subject block, showing the location of the subject property. He also noted that included on the map are pictures taken of uses in the blocks immediately surrounding Block 52, indicating that many commercial build- ings and warehouses are shown in those pictures. Mr. James Goetz stated the property owners in Block 52 are concerned about the quality of their homes and neighborhood and concurred that the issue should be adequately aired. He noted that Mr. Campeau has tried to work with the residents of that block on the location of the structure. Mr. Goetz reminded the Commission that the issue to be addressed is whether a bronze foundry is appropriate and compatible with the listed uses in the M-l zone. He indicated that the impact of a bronze foundry is minimal, noting that no complaints have been received about the bronze foundry located just one block away for the past eight years. He indicated that is- sue was addressed in District Court when Judge Olson asked why the neighborhood shou Id be allowed to bring this issue to the City Commission when they have not previously complained about the operation. He stated that before the previous building permit was issued in 1980, Mr. Campeau asked what district would be appropriate for this use; and then Bui Iding Official Don Barrick indicated the M-l zone. Mr. Goetz stated the neighbors have expressed concerns about various aspects of the op- eration, including toxic substances such as carcinogens and noise levels. He noted those issues I have not been raised in the eight years that the foundry has existed in that area. He further noted that the level of toxic substances must also be considered; and in this instance, those le- vels are quite low. Mr. James Goetz then raised the issue of estoppel doctrine in Montana. He noted that if a local government leads a person to take action by representation of what is allowed in a zone and a person makes an investment and begins a project, the City is estopped from thereafter de- nying that use. He reminded the Commission that in this situation, Mr. Campeau approached the City before beginning his initial foundry eight years ago in the same M-l district. Mr. Goetz then requested that the Commission consider the issue before them, considering the four criteria set forth in Section 18.06.050 of the Bozeman Municipal Code in determining the classification of a particular use. Break - 3:25 to 3:31 p.m. Mayor Stiff declared a break from 3:25 p.m. to 3:31 p.m., in accordance with Commission policy established at their regular meeting of March 14, 1983. Request for classification of use (continued) - bronze foundry in an M-l district Mr. Ray Campeau indicated he is the spokesman for Bozeman Bronze, which is owned by three individuals, including himself. He stated that at the present time the foundry is located in one-third of a large warehouse structure. He noted that the entire 6,000 to 7, OOO-square-foot bui Iding must be heated to 70 degrees in the winter; and the costs are becoming prohibitive. I Mr. Campeau stated that when he approached former Bui Iding Official Don Barrick in 1980 about where a bronze foundry could be located, he was told that an M-l or M-2 zone would be appropriate. He noted that he found the present location and received a bui Iding permit to add a 300-square-foot building at the back of the existing structure. Mr. Campeau stated that he has been looking for a site within an M-l zone for relocation to decrease his operating costs; and he purchased the subject site with that in mind. He indi- cated that he talked to the people within Block 52 prior to his purchasing the site. He stated that he has attempted to address the concerns of those individuals when determining the location of the structure and its configuration as well as landscaping on the site. 12-12-88 46 Mr. Campeau then stated he was told he could pick up the building permit for his new building; however, a complaint was fj led by the neighborhood before he was able to do so. He noted that legal proceedings have taken place from that time to now; and the delay has caused a financial hardship on those in the corporation. He noted that they purchased the site in good faith and have been making payments on it as well as on a loan for construction of the building for the past three months. Mr. Ray Campeau reminded the Commission that a residential structure cannot be con- I structed on the subject property because it is located in an M-l zone; however, the residents in that block protest development of M-l uses. Mr. Campeau then reviewed the pictures of the surrounding uses. He noted that the building to be constructed will be more insulated than his existing structure; and he feels that the noise from his facility will be very minimal except on Mondays, when the furnace is fired. He then showed the Commission the 90-pound crucible which is used for firing. He also showed the Commission a 10-pound block of the by-product from that firing, noting that is the amount which usually escapes during the process. He noted the remainder is recaptured. He briefly reviewed the process which is followed during bronze casting, showing the Commission the sands which are used prior to firing. Mr. Campeau stated the burn-out furnace is 28 inches in diameter and 3t feet deep. He noted that it burns at 1500 to 1600 degrees, which is about 300 degrees lower than the kiln lo- cated on the property immediately to the north. He stated that the pieces which are cast are usually small. He stated that some Jarger pieces have been done, including the Jeanette Rankin piece in Washington, D.C., by creating it in small pieces. Mr. Campeau stated that this entire protest process has created a hardship on him and his partners. Mr. Bob Murray, one of the partners in Bozeman Bronze, stated he lives in Butte. He indicated the neighbors are expressing fear and denial about the proposed relocation of the foundry. He then stated the residents in Block 52 are totally responsible for choosing to live there, realizing that the area is zoned M-l. He noted that they have expressed concern in pre- I vious proceedings about exposu re to carcinogens; however, he feels those concerns and the others they have expressed are basically unfounded. He then requested an opportunity to prove that they can be good neighbors. Mr. Jim Dolan, artist in Bozeman, stated he is familiar with the area in which the foundry is proposed, since he lived there for two years. He noted that the subject area is a viable area for artists, especially since numerous artists are already located there and it is one of the least expensive parts of Bozeman to live. He then stated he has been looking for property in that area upon which to establish a business similar to Mr. Campeau's. He stated he supports Mr. Campeau's proposal, expressing concern that this has become an emotional issue. Mr. Mitch Billis, Northwest Casting, stated he has a bronze foundry similar to Mr. Campeau's near the Bear Canyon exit. He stated his house is located about 40 yards from the metal shop and 75 yards from the burning facility. He indicated that during casting, which is done once each week, he burns three to five times; and there is heavy smoke from the facility for about five minutes each time the burn is started. He noted that smoke usually dissipates quickly and doesn't affect his residence. Mr. Harvey Rattey, artist living at Bear Canyon, stated he operated a foundry for almost fifteen years; and he does not feel it is a dirty operation. He indicated that the proposed lo- cation is a good one in which to have this type of business, noting it will be good for artists in this area. Mr. Greg Morgan, attorney representing many of the residents in Block 52, stated oppo- sition to the proposed foundry at the subject location. He stated that Mr. Campeau does operate I a good business; however, he does not feel that Block 52 is the appropriate place for the found- ry. He stated that Block 52 is currently a residential block, with no commercial or industrial uses. He concurred that Mr. Campeau has made an investment in the subject site; however, the residents in that block have also made an investment. Mr. Morgan questioned whether issuance of a previous building permit requires the City to continue to allow a foundry in the M-l zone, suggesting that it does not. He stated there is no question that Mr. Campeau will move from his current location; however, he indicated it is not appropriate for him to move to Block 52, which is entirely residential. 12-12-88 47 Mr. Morgan then stated that Mr. Campeau purchased the subject property relying upon representations from the Planning staff; however, he did not request a building permit until af~ ter he had purchased the property. He stated that he does not feel the Commission is estopped from making the appropriate decision on the request before them at this time. Mr. Greg Morgan stated the Commission must consider the effect that a foundry would have on the character of the neighborhood. He stated that to rezone Block 52 to a residential I zone would not be spot zoning, since it is adjacent to an R-3 zone. He noted that the residents in the subject block opposed the Planning staff's proposal to rezone it to R-3 in September 1987 for the same reason it is currently opposing the foundry. He stated they a re opposed to the construction of a large, high building in that block, whether it be a four-plex or a foundry, be- cause it would dominate the area. He then questioned whether the Commissioners would I ike to have a foundry constructed in their own back yards. Mr. Morgan stated that many of the residents in that block have refurbished their homes; and they take pride in their homes and the neighborhood. He also stated that the Planning staff has acknowledged the character of the area, noting that the staff report from September 1987 indicates that rezoning of Blocks 51 and 52 would not significantly decrease the amount of M-l property avai lable in the city. Mr. Morgan stated the Zoning Commission has directed the staff to review the area and propose an appropriate rezoning; but that has not been done to date. He suggested the Com- mission should consider the proposed rezoning and subsequent discussions between the staff and residents in making their decision, even though the zoning designation has not yet been changed. Mr. Greg Morgan noted that foundries are not listed as a permitted use within any dis- trict; and he does not feel they are appropriate in an M-l zone, particularly in the subject lo- cation. He further noted that any manufacturing use in this zone is to be made compatible with the residential area which it borders; howeve r , this proposed use would be in the middle of a residential area. He also noted that the neighbors are concerned about the carcinogenic gases I and wastes which would be given off during the burning process. He then expressed concern that the applicant may wish to expand his operation, which would result in burning more than one day each week; and that would further impact the neighborhood. Mr. Morgan then requested that the Commission find that a foundry is not a listed use in the M-l zone. Mr. Rich Devers, 712 East Peach Street, stated he walks by the existing foundry every day on his way to and from work. He indicated that Mr. Campeau approached him last summer about building an art studio on the subject parcel; but he did not real ize it was to be a bronze foundry until August 31. He stated he has noticed the heavy smoke from firing while walking to work; and he has heard noise from the foundry. He then stated he does not want the smoke or noise in his back yard, nor does he want a 50-foot by 60-foot bui Iding behind his 605-square- foot home. Mr. Devers then stated that many of the residents spend time in their back yards; and they will not be comfortable doing so with a foundry there. He noted that his home was ap- praised at $35,000 when he purchased it four years ago; and he makes approximately $16,000 a year. He expressed concern about wastes falling into the residents' back yards, noting most of them have gardens. Mr. Devers indicated that he opposed the proposed rezoning to R-3 in September 1987 be- cause the person who owned the property that Mr. Campeau just purchased wanted to construct a four-plex or an apartment building. He noted that following denial of the zone change, the staff was directed to create a special zone for the area, which has not yet been done. I Mr. Jim Barnaby, 716 East Peach Street, stated the proposed bronze foundry would be located 34 feet from his property. He indicated he is vehemently opposed to the proposed re- location of the foundry because of the impact from the loud noises and the furnace. Mr. Barnaby stated that Mr. Campeau had previously indicated that he would not compromise the open space in that block; however, the proposed location and size of the building will. Mr. Barnaby stated that after learning about the proposed relocation, he visited the existing Bozeman Bronze foundry. He noted that power tools are used; and they create a sub- stantial amount of noise. He indicated that the neighbors contacted the Occupational Health and Safety Board in Helena; and they sent a machine to monitor the decibel levels of the operation. 12-12-88 48 He noted that Ms. Barbara Vaughn, a local individual qualified to operate the machine, did so and submitted the information to the neighbors. He stated that he also tried to contact Mr. Campeau to discuss the proposed relocation but was unable to reach him. Mr. Barnaby stated that he feels relocation of the bronze foundry to Block 52 would have a negative impact on his lifestyle as an artist. He then indicated that his annual income is $4,000; and stated he has lived in that location for fifteen years. Mr. Jim Barnaby stated that following the public hearing in September 1987, he contacted Bill Murdock, former member of the Planning staff, on two separate occasions. He noted that I Mr. Murdock assured him that the staff was working on developing a zoning designation for that area. Mr. Sam Rogers, Chemistry teacher at Montana State University, indicated he works in the area of genetic toxicology. He stated that a carcinogen is a compound which has a a mate- rial or agent which can be damaging to a human DNA; and that can cause cancer over a period of time. He noted that in a bronze foundry there are known carcinogens; and adding those pro- ducts to the air in this residential neighborhood should be avoided if possible. Mr. Greg Morgan presented to the Commission a number of pictures taken in the subject block. He also submitted a picture showing the smoke from a bronze foundry. Mr. Bi II Ming, resident of Block 52, ind icated he has lived there for seventeen yea rs, stating that he is retired and living on Social Security. He noted the proposed foundry would be constructed 25 feet from his back yard; and the smoke would blow across his garden area due to the prevailing winds. He then expressed concern about access to the parking area being through the alley immediately behind his home; and the additional traffic this use would create. Ms. Linda Tawney, 724 East Peach Street, stated she went to Northwest Casting and took pictures of the smoke, one of which has been submitted to the Commission. She stated she was amazed at the amount of smoke and noise from the furnace, noting the workers were wearing protectors as they worked. She noted that one of the partners in the operation indicated that a bronze foundry does not belong in a residential neighborhood. Mr. Ray Campeau stated the workers do use earplugs to protect their ears from the high- I pitched sounds of the hand tools. He noted that they also use headsets for entertainment whi Ie working. He then indicated he has not discussed the foundry with any of the residents since they began legal proceedings because he did not wish to compromise his position. Mr. James Goetz briefly reviewed some of the testimony which the Commission has re- ceived from the opponents. He noted there was no substantial information to indicate that car- cinogens from the proposed use would be harmful to the residents in the area. He then remind- ed the Commission that the subject area is zoned M-l, even though there are currently residen- tial uses in the block. He then stated the M-1 zoning of the area should be the basis upon which the Commission makes its decision. Ms. Linda Klenn stated that in the September 1987 hearing, it was noted that this is a special neighborhood and needs a special zoning. She noted that the homes are small and need to be protected. She then indicated that a bronze foundry is not a light industrial use and should not be allowed. Planning Director Andy Epple stated that the staff began work on the proposed zoning for the subject block; however, staff turnover has slowed the process. He noted that any re- zoning of this area will not take place for several months; and that potential rezoning does not affect this application in any way. Commissioner Martel asked how long the subject site has been zoned M-l; Planning Direc- tor Epple responded at least since 1973, when the new zone code was adopted. He noted the housing stock in that area was deteriorating unti I a few years ago, when people began renova- tion of their properties. I Mayor Stiff noted that when a commercial or industrial use is located on the fringe of a residential area, more stringent requirements are placed on that use. He then asked if such a use in the middle of a residential area is addressed. The Planning Director indicated that the intent statement for the M-l district addresses impacts on residential development. He noted that the residential development in this block is located in the M-l zone; therefore the screening requirements don't apply. 12-12-88 49 Planning Director Epple then reminded the Commission that the question before them is whether the proposed use is the same as or so similar as to be considered the same as a listed permitted use in the M-l zone, such as manufacturing of light consumer goods. Commissioner Goehrung asked if this determination is applicant specific or site specific, or if a generic determination is to be made. The Planning Director stated that the District Court has remanded this item to the City I Commission, to make a determination based on the four criteria listed in the zone code. He in- dicated that in this type of action, the code allows the Commission to consider the neighborhood in making its determination. He stated that in this instance, the size of the foundry and its op- eration may be considered in making the decision. Commissioner Hawks asked how the Commission could limit the size of a bronze foundry in this area. He stated that a la rger casting facility, where casting is done every day of the week, should be located in a heavy industrial area. He noted, however, that a small scale oper- ation, where casting is done one day a week, would be compatible with the lighter industrial designation. He also asked if it would be possible to allow foundries as a conditional use in the M-l and a permitted use in the M-2 zone. The Planning Di rector stated that the Commission may determine that a foundry is the same as or so similar as to be the same as a listed permitted or conditional use. He noted that if that is not possible, the Commission could initiate a zone code amendment to list foundries specifically. Mayor Stiff expressed concern about any compounding effect that more than one foundry may create in an area. Planning Director Epple stated that if the Commission determined that this foundry was the same as or so similar as to be the same as a listed permitted use in the M-l zone, the staff must then allow any other foundry with the same or a very similar design, of the same size in the same block if such a request is made. Commissioner Vant Hull asked for an opinion from City Attorney Becker concerning the I estoppel issue which has been raised. Commissioner Goehrung requested that the Planning staff prepare a list of the alternatives which the Commission may consider in its deliberations. Planning Director Epple stated he will work with the City Attorney in preparing a memo containing those alternatives. Mayor Stiff stated a decision will be made at next week's meeting. Break - 5:32 to 5:42 p.m. Mayor Stiff declared a break from 5:32 p.m. to 5:42 p.m., in accordance with Commission policy established at their regular meeting of March 14, 1983. Commission Resolution No. 2732 - establishing a policy regarding vacation of streets and alleys Acting City Manager Gamradt presented Commission Resolution No. 2732, as prepared by the City Attorney, entitled: COMMISSION RESOLUTION NO. 2732 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MON- TANA, ESTABLISHING THE PROCEDURE FOR THE VACATION OF ANY STREET, ALLEY OR PORTION THEREOF. The Acting City Manager reminded the Commission that they had tabled action on this resolution at last week's meeting for a period of one week, unti I a full Commission was present. He noted that the City Attorney has prepared two versions of this resolution, the first providing I for recovery of costs involved and the second providing for recovery of costs plus a fair market value payment for the property vacated. He reminded the Commission that the City Attorney has found no statutory provision for requiring a fair market value payment for vacated proper- ties. Mayor Stiff asked if the difference in forms of government has any impact on the proce- dure to be followed in street and alley vacations; the City Attorney responded that it does not. Commissioner Hawks stated he does not accept the argument that because the land may have been dedicated to the City at no cost, it has no value at this time. He stated he feels the 12-12-88 50 City should dispose of its property as it sees fit, asking if there is some way to accept monies for the vacated property with those monies being earmarked for purchase of other properties for rights-of-way. City Attorney Becker reviewed the statutory provisions for disposal or lease of municipal properties as well as for vacating or discontinuing of streets and alleys. The City Attorney then stated that "vacation" is also referred to as "abandonment"; but "selling" is not referred to as a pa rt of the process. He noted the statute does allow for recovery of the costs incurred, I but no additional compensation. Commissioner Martel noted that the only reason to vacate a street or alley is because it has no benefit to the City. Commissioner Hawks noted the property vacated has value to the person requesting the vacation, even if it doesn't to the City. City Attorney Becker stated that the general statutes for disposal of property allow for sale of those properties. He then noted that the specific statutes for vacation of streets and alleys allows for recovery of costs only. He stated that the statutory construction states that if general and specific statutes apply, the specific statutes govern. The City Attorney then re- minded the Commission that it may vacate a street or alley; however, it is not required to do so. The City Attorney stated that even if a street or alley is vacated, there are usually util- ities located in that area; and a utility easement is required. He noted that such an easement does not allow for construction of a bui Iding on that area, which has a substantial impact on the value of the property. Acting City Manager Gamradt suggested that if the Commission wishes to establish a fair market value for vacated streets and alleys, it may want to consider approaching the legislature about a change in the statutes. Following discussion, a majority of the Commissioners concurred that the first version, allowing for recovery of costs, is the one which should be adopted given statutory restrictions. It was moved by Commissioner Goehrung, seconded by Commissioner Hawks, that the Commission adopt Commission Resolution No. 2732, establishing the procedure for the vacation of I any street or alley. The motion carried by the following Aye and No vote: those voting Aye be- ing Commissioner Goehrung, Commissioner Hawks, Commissioner Vant Hull, Commissioner Martel and Mayor Stiff; those voting No, none. Commission Resolution No. 2733 - certif assessments as of November 30, 1988 to t e County The Acting City Manager presented Commission Resolution No. 2733, as approved by the City Attorney, entitled: COMMISSION RESOLUTION NO. 2733 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MON- TANA, DECLARING ANNUAL AND SEMI-ANNUAL SPECIAL ASSESSMENT INSTALL- MENTS DUE AND PAYABLE NOVEMBER 30, 1988, AND UNPAID AS OF THAT DATE, DELINQUENT, AS PROVIDED BY CHAPTERS 2.32 AND 3.04 OF THE BOZE- MAN MUNICIPAL CODE, AND DIRECTING THE DIRECTOR OF FINANCE TO CERT- IFY THE SAME TO THE GALLATIN COUNTY TREASURER FOR COLLECTION. The Acting City Manager stated this resolution certifies all delinquent assessments as of November 30 to the County for collection. He noted that payments received since December 1 are not reflected in this listing, but releases for those payments will be submitted to the County along with this list. He stated that a memo listing the total assessments and total delinquencies for the past five years has been included in the packets for comparison purposes. The Acting City Manager then recommended that the Commission adopt this resolution. I It was moved by Commissioner Hawks, seconded by Commissioner Vant Hull, that the Commission adopt Commission Resolution No. 2733, certifying delinquent assessments as of No- vember 30, 1988 to the County. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hawks, Commissioner Vant Hull, Commissioner Martel, Commis- sioner Goehrung and Mayor Stiff; those voting No, none. 12-12-88 51 Authorize writinq off of uncollectible utility accounts as of December 31, 1987 - $4,897.82 Acting City Manager Gamradt submitted to the Commission a listing of 70 uncollectible utility accounts as of December 31, 1987, totalling $4,897.82. He noted that the writing off of uncollectible accounts clears the City's accounts receivable for audit purposes; but the City still continues its attempts to collect those monies. Commissioner Vant Hull expressed concern at some of the larger bills, asking if there is I some way to decrease them. The Acting City Manager indicated that letters are sent to the customer when the balance is 60, 90 and 120 days old. He stated that after 120 days, the water is turned off; and the bill is usually turned over to a collection agency at that time. He then noted that one bill to be submitted to the legislature during the upcoming session would allow delinquent water bills to become a lien to the property, which should help address this concern. It was moved by Commissioner Vant Hull, seconded by Commissioner Martel, that the Com- mission authorize the writing off of uncollectible utility accounts as of December 31, 1987, in the total amount of $4,897.82. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull, Commissioner Martel, Commissioner Goehrung, Commissioner Hawks and Mayor Stiff; those voting No, none. Discussion - FYI Items Acting City Manager Gamradt presented to the Commission the following "For Your I nform- ation" items. ( 1 ) A memo from the Acting City Manager concerning establishing of fair market val- ues for the lots in Valley Unit for the upcoming tax deed sale. He then distributed to the Com- mission a memo from Former City Attorney Planalp on this issue. (2) An invitation to attend a luncheon meeting with Governor-Elect Stan Stephens to be held on Wednesday, December 21, in Helena. (3 ) Commissioner Hawks indicated he will give a report on the NLC Congress of Cities I at next week's meeting. (4) The Clerk of the Commission reminded the Commissioners of the District 10 meeting Tuesday night with the legislators. (5) Commissioner Vant Hull asked if the Commission should discuss the City Attorney's response to Mr. Connell's letter. The City Attorney stated he has requested information from the City of Missoula, noting that community is one with litigation expertise on this issue. He stated that information should be available within two or three weeks, and could possibly be discussed after that. (6) Commissioner Goehrung stated that he rode with one of the police officers on Fri- day night, noting the City is served well by its officers. (7) Commissioner Vant Hull asked if the Commission shou Id request information con- cerning the problems incurred at the Rocking R Bar the night of the Christmas Stroll. City Attorney Becker indicated that was not the only location to have problems that night. Consent Items Acting City Manager Gamradt presented to the Commission the following Consent Items. Building Inspection Division Report for November 1988 Claims It was moved by Commissioner Martel, seconded by Commissioner Goehrung, that the Com- mission approve the Consent Items as listed above, and authorize and direct the appropriate per- I sons to complete the necessary actions. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Martel, Commissioner Goehrung, Commissioner Hawks, Com- missioner Vant Hull and Mayor Stiff; those voting No, none. Adjournment - 6:22 p.m. There being no further business to come before the Commission at this time, it was moved by Commissioner Goehrung, seconded by Commissioner Hawks, that the meeting be adjourned. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Goehrung, Commissioner Hawks, Commissioner Vant Hull, Commissioner Martel and Mayor Stiff; 12-12-88 52 those voting No, none. ALFRED M. STIFF, Mayor ATTEST: ROBIN L. SULLIVAN I Clerk of the Commission I I 12-12-88