Loading...
HomeMy WebLinkAbout1982-11-01 ,.., I. ,) MINUTES OF THE MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA November 1, 1982 *********************** The Commission of the City of Bozeman met in regular session in the Commission Room, Municipal Building, November 1,1982 at 4:00 p.m. Present were Mayor Stiff, Commissioner I Weaver, Commissioner Anderson, Commissioner Mathre, Commissioner Vant Hull, City Manager Evans, Assistant Manager Barrick, Acting City Attorney Johnstone (for the first segment of the meeting), City Attorney Planalp (for the second segment of the meeting) and Clerk of the Commission Sullivan. The meeting was opened with the Pledge of Allegiance and a prayer by Commissioner Weaver. The minutes of the regular meeting of October 25, 1982 were approved as corrected. None of the Commissioners requested that any of the items listed under Consent Items be removed for discussion. Open bids - 20-inch sanitary sewer line to Waste Water Treatment Plant (EPA Project) This was the time and place set for the opening of bids for the construction of a 20-lnch sanitary sewer line to the Waste Water Treatment Plant. The City Manager noted that this is a portion of the EPA project for construction of the new addition to the Waste Water Treatment Plant. He also stated that the bids must be opened at this time in compliance with the EPA schedule of events. The affidavit of publication for the "Call for Bids" as advertised was presented. It was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the bids be opened and read. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor Stiff; those voting No, none. I The following bids were then opened and read: Total Base Bid Engineer's Estimate $311,532.50 Barnard Construction Company, I nc., Bozeman, Montana $244,586.00 COP Construction Company, Billings, Montana 222,496.00 D & J Pipeline Construction, Inc., Glendive, Montana 276,290.00 Johnston Excavating, I nc., Bozeman, Montana 196,862.00 Tom Roe and Son Construction, I nc., Big Timber, Montana 167,151.70 Sharbono Construction, Inc., Helena, Montana 262,330.00 Underground Construction, Bozeman, Montana 311,640.00 White and McNeil Excavating, I nc., Bozeman, Montana 258,489.50 It was moved by Commissioner Vant Hull, seconded by Commissioner Anderson, that the bids be referred to Staff and the consulting engineers for a recommendation to be presented at next week's meeting. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre, Commissioner Weaver and Mayor Stiff; those voting No, none. Introduction of Director of Public Service (Works) City Manager Evans introduced Mr. Richard C. (Dick) Holmes, the first Director of Public Service (Works) for the City of Bozeman, to the City Commission. He noted that Mr. Holmes has previously been employed by the State of Montana Department of Highways for nineteen years, the last eight years of which has been in the Bozeman division office. I Mayor Stiff welcomed Mr. Holmes to the City Staff. Application for Raffle License - The Great Bear Foundation of Montana - December 19, 1982 City Manager Evans presented to the Commission an application for a Raffle License, along with the required fee, on behalf of The Great Bear Foundation of Montana for a raffle to be held December 19, 1982. To be raffled is a Winchester Model 70 with a value of $389.00. 11-01-82 239 The City Manager noted that very little is known about this organization. The Com- missioners expressed a desi re to know whether or not this is a non-profit organization, what the organization represents and how they plan to monitor the raffle and awarding of the prize. City Manager Evans recommended that the Commission defer action for a period of one week so that the Staff may seek answers to the questions raised by the Commission. I City Mana~er's report - preliminary draft of the bond prospectus for $5 million Water System Revenue ond issue City Manager Evans stated that the preliminary draft of the bond prospectus for the $5 million Water System Revenue Bond issue has been prepared by Boettcher and Company in Denver, Colorado. He noted that the City Staff must now review the draft to make sure that the information is correct and is not misleading to a prospective bond buyer. The City Manager requested that any Commissioner finding any possible errors in the bond prospectus contact him so that he might review and make necessary corrections to the draft. Mayor Stiff asked if any errors have been found in the preliminary draft of the bond prospectus. Director of Finance Swan stated that she has found several typographical errors and has contacted Mr. Tuck Canzenmuller with those corrections. Also, Boettcher and Company has requested that the audited 1982 financial statements be included In the bond prospectus if possible. The Director of Finance stated that she would contact Mr. Nick Gray, Coopers and Lybrand, to see if it is possible to obtain the audited 1982 financial statements for the Water Enterprise Fund within the next week. If so, they will be substituted for those financial statements that appear in the draft. I f it is not possible to complete the audited statements by the deadline date for the bond prospectus, the statements currently listed in the preliminary draft will be used. DI rector of Finance Swan noted that completion of the bond prospectus and the subsequent bond sale should not be delayed for the audited 1982 financial statements. I City Manager Evans noted that the City is currently on a tight time frame for sale of the bonds. He stated that the current time frame provides for a bond sale on November 18, 1982 with construction bids to be opened on November 22, 1982. The City Manager noted that any bonds sold after January 1, 1983 will be registered bonds rather than bearer bonds. He noted that the registered bonds will not attract the broad span of investors that would be attracted under the bearer bond market. The City Manager also noted that a bond ordinance setting forth covenants on the bond issue must be adopted, and a resolution for the bond sale must be adopted prior to the bond sale. City Manager Evans stated that the company which insures bonds will contact the City on Thursday to state whether or not they will insure the bonds that the City will be selling. He noted that the amount that the company would charge to Insure the bonds can be trans- lated into a percentage, for consideration at the time of the bond sale. It was moved by Commissioner Anderson, seconded by Commissioner Mathre, that the Commission acknowledge receipt of the preliminary draft of the bond prospectus for the $5 million Water System Revenue Bond issue. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Anderson, Commissioner Mathre, Commissioner Weaver, Commissioner Vant Hull and Mayor Stiff; those voting No, none. Accountin Fund to SID 565 (downtown parking/ acqUIsItIon City Manager Evans presented to the Commission a request from Di rector of Finance I Swan to authorize an accounting entry to transfer an amount of $113,624.90 from the General Fund to Special Improvement District No. 565 (downtown parking/acquisition and construction fund) . The City Manager noted that this request is the result of an overrun in the Spring of 1979 on the SID 565 acquisition and construction fund. He stated that the requested accounting entry is necessary to provide for a zero balance in the SID account. Director of Finance Swan stated that the $113,624.90 has been spent and, under the old accounting practices in the City, the monies were taken from the General Fund. The 11-01-82 21 " _"i U deficit has not been acknowledged properly in the records. The Director of Finance requested Commission authorization to make the journal entry to adjust the balances to reflect the correct amounts. She noted that the district is currently being assessed at the maximum amount, or the amount listed in the resolution of intent to create the district, and the SID Revolving Fund monies can only be used for debt service, not for the acquisition and con- struction fund. The City also has not charged the 6 percent administrative fee on this SID because it has an overrun. The Director of Finance further noted that the City cannot I create another Special Improvement District to cover the overrun because it must first be petitioned by the property owners. City Engineer Van't Hul stated that Mr. Rick Mayfield prepared the plans for the Parking Commission and set the estimated cost of the project. He noted that if the City had been aware of the overrun, it could have proposed an additional SI D at that time. He further noted that the original plans included the purchase of a parcel which is currently a parking lot. That parcel still remains a private parking lot, rather than a City-owned parking lot. City Manager Evans stated that the City is not mandated to exceed the amount of money originally allocated for the Special Improvement District. He further noted that the City cannot exceed the budget unless the Commission authorizes the expenditure. The City Manager noted that the monies have been spent in the past and noted that the requested transfer will not affect the current bUdget. He then recommended that the Commission authorize the transfer from the General Fund to SID 565. . It was moved by Commissioner Mathre, seconded by Commissioner Weaver, that the Commission authorize the Director of Finance to complete an accounting entry to transfer $113,624.90 from the General Fund to Special Improvement District No 565 (downtown parking/ acquisition and construction fund). The motion carried by the following Aye and No vote: those voting Aye being Commissioner Mathre, Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson and Mayor Stiff; those voting No, none. Authorize Mayor to sign - agreement with Dr. Ronald N. Hecht re use of a portion of Beall I Street right-of-way between North Tenth and North Eleventh City Manager Evans presented to the Commission an agreement with Dr. Ronald N. Hecht regarding the use of a portion of West Beall Street between North Tenth and North Eleventh Streets. He noted that Dr. Hecht has proposed several improvements along the West Beall Street right of way, including filling and covering the ditch, planting grass and maintaining a lawn, building a fence along the North Eleventh Street sidewalk and providing two employee parking stalls along the alley. The City Manager noted that it would be in the best interests of the City to allow Dr. Hecht to make the requested improvements and recom- mended that the Mayor be authorized to sign this agreement. Commissioner Mathre noted that the ditch extends about half the length of the block. She noted that there is a culvert under the street and asked if this ditch may be needed for overflow. City Engineer Van't Hul stated that the ditch was the Westlake Ditch and was used for irrigation in the past. The ditch has now been given to the City and no longer carries any water. It was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the Commission authorize the Mayor to sign the agreement with Dr. Ronald N. Hecht regarding the use of a portion of West Beall Street right of way between North Tenth and North Eleventh Streets. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor Stiff; those voting No, none. I Centennial Committee report - approval of grant application for historic inventory Planning Director John Moss stated that the City-County Planning Board considered the approval of the grant application for a Historic Preservation Survey Grant at its regular meeting held on October 28, 1982, and voted to accept responsibility for administration of the application. He noted that the Planning Board expressed concern that an overload may be 11-01-82 241 created for the Staff with the completion of the Master Plan and the administration of a grant. City Manager Evans recommended that the Commission authorize and direct the Staff to submit a grant application. He stated that the $3,500.00 which the City would need to provide for matching funds could be made available for the project through a budget amendment. He noted that the budget amendment can be approved if the application for matching funds is approved. I Commissioner Vant Hull asked how much the Planning Staff would be overloaded with the administration of this grant. Planning Director Moss stated that he feels the Staff can handle the workload. He noted that he would not have recommended approval of the submission of a grant application if he had felt they could not handle it. He also noted that the overall program is an oppor- tunity for the city and the surrounding area. He stated that the survey will yield Infor- mation on all of the structures In the city; and the price is right for the City. He noted that the Planning Staff will be contributing some of its time and some of the floor space will be rented as an in-kind contributions for the project. It was moved by Commissioner Vant Hull, seconded by Commissioner Anderson, that the Commission authorize and direct the Staff to prepare and submit a grant application for a Historic Preservation Survey Grant. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre, Commissioner Weaver and Mayor Stiff; those voting No, none. Report on status of Mystic Lake Dam City Engineer Van't H ul stated that the contractor breached the dam last week, com- pleting the process on Friday afternoon. The cut was made as deep as the equipment and fill would allow, but not as deep as the Forest Service had originally requested. The Forest Service will review the breaching later In the week. The City Engineer noted that the base of the channel is of lighter dirt than anticipated; and the water should be able to go through I the channel faster without creating any major problems. He ordered some fabric to hang over the sides of the dam, but the wrong size was sent. That process should be completed later this week. City Engineer Van't Hul stated that the contractor did an excellent job on the breaching, and well within the amount allocated. The City Engineer stated that the DN RC has not yet received the report from the re- view team from California. The DN RC will not commit any additional funds for the installation of more monitoring equipment until the report has been submitted to them for review. Commissioner Mathre asked when the City would get information back if new slide in- clinometers are installed. City Engineer Van't Hul stated that if the DNRC approves the grant application. the holes can be drilled In November and the inclinometers installed, a reading can be taken six hours after installation and then one every three weeks. The City hopes to obtain three readings this Fall and one in the Spring. The City Engineer noted that the one inclinometer hole presently at the dam site survived the breaching and can still be used. Commissioner Anderson asked If plans for the repair of the dam would be discontinued if the reports indicate a mass movement rather than a local movement in the slide. The City Engineer stated that the engineers are not concerned with slight movements in the slide mass. They have noted the possibility of a change in the design of the dam If the mass is moving, rather than it being a local movement. Commissioner Vant Hull noted that a memo from Planning Director Moss indicates that the Montana Department of Commerce, which administers the CDBG grant monies, has heard I that the City is withdrawing its application for DNRC monies for repair of the dam. The De- partment of Commerce has requested that the City guarantee reconstruction of the dam by July 1, 1983 or withdraw the application for CDBG monies. The Planning Director has indicated that the application can currently be modified so that the project can still be considered for funding. City Engineer Van't Hul noted that the City does not want to jeopardize receiving those funds. He noted that the City must rebuild the dam and needs the funds to do so. 11-01-82 2. Lt / City Manager Evans noted that the City must maintain its two separate thrusts for funding of the rebuilding of the dam. He further noted that the City Engineer is responsible for the application for DNRC funds and subsequent information; and the Planning Director is responsible for the application for CDSG funds and subsequent information. Appointments - Committee to Study Low-Income Housing and Committee to Review Self- Government Powers Mayor Stiff stated that the Commission is making the appointments to these two new I committees, rather than the appointments being made by the Mayor with the concurrence of the Commission. He noted that of the 26 applicants for the Committee to Study Low-Income Housing, eight had received at least three votes from the Commissioners. The Mayor recom- mended that the Commission approve the appointment of these eight citizens to the Committee and appoint Commissioner Anderson and Commissioner Vant Hull as non-voting ex-officio Com- mission members to the committee. He noted that the Committee could then select its own presiding officer at its first meeting and can determine which members will serve one-, two- and three-year terms. It was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the Commission appoint the following eight citizens and two City Commissioners to the Citizens' Committee to Study Low-Income Housing: John R. Baker Robert G. Border Linda Brock Thomas W. Heafield-Mordan Wayne Jennings M. Glenn Lewis Edward Sypinski Marcia B. Youngman Commissioner Anderson, Ex-officio Commissioner Vant Hull, Ex-officio The motion carried by the following Aye and No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor I Stiff; those voting No, none. Mayor Stiff then noted that of the eight applicants for appointment to the Committee to Review Self-Government Powers, three had a majority of Commissioner votes. He recommended that the Commission appoint those three private citizens, Commissioner Vant Hull, Commissioner Mathre and City Manager Evans to the Committee. He noted that all members would be full voting members. It was moved by Commissioner Vant Hull, seconded by Commissioner Anderson, that the Commission appoint the following members to the Committee to Review Self-Government Powers: J. Robert Planalp Bradley C. Stratton Doris B. Ward Commissioner Vant Hull Commissioner Mathre City Manager Evans The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre, Commissioner Weaver and Mayor Stiff; those voting No, none. Discussion - proposed Business License Ordinance Assistant City Manager Barrick noted that he has responded to questions raised by Commissioner Mathre and Commissioner Vant Hull. I Commissioner Vant Hull noted that some of her questions involved the amounts of the fees established in the ordinance, including those charged for gaming tables. She does not feel that $250.00 per table is sufficient. She stated that she will prepare a memo for the other Commissioners so that they can consider possible questions or revisions to the ordinance. 11-01-82 2LI-3 Mayor Stiff noted that the proposed ordinance updates an ordinance adopted in 1933. He stated he feels that the ordinance should be reviewed more often. Assistant City Manager Barrick stated that it might be possible to set a time for updating the ordinance or provide for sunsetting of the ordinance. Acting City Attorney Johnstone stated that he can see no legal problem with either al- ternative. He noted that updating of an ordinance is simply a matter of time and money. He I stated that the fees may be the only portion of the ordinance that would need to be updated periodically, with the rest of the ordinance to be reviewed on a less frequent basis. Assistant City Manager Barrick stated that he will have an updated draft of the pro- posed business license ordinance prepared for next week's Commission meeting. He noted that all changed portions of the ordinance will be underlined for easy identification. Appointment of subcommittee of Commissioners to review Pledged Securities for the period ending September 30, 1982 Mayor Stiff appointed Commissioner Mathre and Commissioner Weaver to the subcommittee to review the Pledged Securities for the period ending September 30, 1982. It was moved by Commissioner Anderson, seconded by Commissioner Mathre, that the Commission concur In the Mayor's appointment of Commissioner Mathre and Commissioner Weaver to the subcommittee to review the Pledged Securities for the period ending September 30, 1982. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Anderson, Commissioner Mathre, Commissioner Weaver, Commissioner Vant Hull and Mayor Stiff; those voting No, none. City Manager's report - Urban Coalition City Manager Evans stated that a meeting of the Urban Coalition has been scheduled at 1:00 p.m. on Friday, November 5,1982, at the City-County Building in Helena, Montana. He requested that the Commission authorize his attendance at the meeting and invited the I Commissioners to attend also if they have an opportunity to do so. The City Manager also noted that the Commissioners have received a copy of the report on the Urban Coalition meeting held in Billings, Montana, on October 14-15, 1982. He stated that many Items were covered during the meeting, and those in attendance thought it would be better to have a written summary that would provide everyone with the same information. He noted that the Urban Coalition has drawn no opposition from the Association of Counties or League of Cities and Towns on anything that it has done. Commissioner Vant Hull noted that the counties are not allowed to license businesses located in the county outside the corporate limits of a city. She suggested that the Urban Coalition consider supporting legislation that would allow counties to license businesses and establish their own fees. City Manager Evans stated that he would present the suggestion to the Urban Coalition at the meeting to be held on Friday. Proclamation - IIAgricultural Appreciation Weekll - November 6-11, 1982 Mayor Stiff proclaimed the week of November 6 through 11, 1982 as "Agricultural Appreciation Weekll in the City of Bozeman and expressed the appreciation of the City of Bozeman to the farmers and ranchers of the Bozeman area for their contributions to our community. It was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the Commission concur in the Mayor's proclamation. The motion carried by the following Aye and I No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor Stiff; those voting No, none. Authorize Mayor to si n - Request for Reimbursement from EPA, Step 3, Phase I, WWTP - 21 ,065.00 City Manager Evans presented to the Commission a Request for Reimbursement from EPA, Project No. C300208-24 for Step 3, Phase I, of the Waste Water Treatment Plant, in the amount of $213,065.00. This is Partial Payment Request No. 15. 11-01-82 'Ii" ,1..... 1 It was moved by Commissioner Vant Hull, seconded by Commissioner Anderson, that the Commission authorize the Mayor to sign the Request for Reimbursement from EPA, Project No. C300208-24, Step 3, Phase I, Waste Water Treatment Plant, in the amount of $213,065.00. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre, Commissioner Weaver and Mayor Stiff; those voting No, none. Authorize Mayor to sign - Request for Reimbursement from EPA, Step 3, Phase II, WWTP - I $205,527.00 City Manager Evans presented to the Commission, Request for Reimbursement from EPA, Project No. C300208-26 for Step 3, Phase II, of the Waste Water Treatment Plant, in the amount of $205,527.00. This is Partial Payment Request No.8. It was moved by Commissioner Anderson, seconded by Commissioner Mathre, that the Commission authorize the Mayor to sign the Request for Reimbursement from EPA, Project No. C300208-26, Step 3, Phase II, Waste Water Treatment Plant, in the amount of $205,527.00. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Anderson, Commissioner Mathre, Commissioner Weaver, Commissioner Vant Hull and Mayor Stiff; those voting No, none. Claims Claims for the past two weeks were presented. The City Manager stated he had checked the claims and found them to be true and correct and recommended that the Director of Finance be instructed to Issue warrants in payment thereof. It was moved by Commissioner Mathre, seconded by Commissioner Weaver, that the claims be approved as submitted. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Mathre, Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson and Mayor Stiff; those voting No, none. File report - Broad Valleys Federation of Libraries - September 1982 I City Manager Evans stated that the monthly report for the Broad Valleys Federation of Libraries for September 1982 appeared to be in order and recommended that it be ordered filed. It was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the monthly report for the Broad Valleys Federation of Libraries for September 1982 be accepted and ordered filed. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor Stiff; those voting No, none. File report - Fire Division quarterly report for July to September 1982 City Manager Evans stated that the quarterly report for the Fire Division for the period July to September 1982 appeared to be in order and recommended that It be ordered filed. It was moved by Commissioner Vant Hull, seconded by Commissioner Anderson, that the quarterly report for the Fire Division for July to September 1982 be accepted and ordered filed. The motion carried by the following Aye and No vote: those voting Aye being Com- missioner Vant Hull, Commissioner Anderson, Commissioner Mathre, Commissioner Weaver and Mayor Stiff; those voting No, none. Recess - 5:35 p.m. I Mayor Stiff declared a recess at 5:35 p.m., to reconvene at 7:00 p.m. for items of public interest. Reconvene - 7:00 p.m. Mayor Stiff reconvened the Commission meeting at 7: 00 p. m. for the purpose of con- ducting the scheduled public hearings. 11-01-82 2 LrS Continued public hearing - Zone Code Amendment - to establish adult stores and theatres in the M-l and M-2 districts This was the time and place set for the continued public hearing on the Zone Code Amendment proposed by the Planning Staff to provide for adult book stores and adult motion picture theatres in the M-l and M-2 Districts. The proposed Amendment is to provide defini- tions to include Sections 18.06.021, Adult Book Store; 18.06.022, Adult Motion Picture I Theatre; 18.06.531, Specified Anatomical Areas; and 18.06.532, Specified Sexual Activities; and to amend Section 18.72.050, to permit adult book stores and adult motion plctu re theatres as conditional uses In the M-l, Commercial-Light Manufacturing District, and the M-2, Manufacturing and Industrial District. This public hearing was opened on October 4, 1982. Mayor Stiff opened the continued public hearing. Planning Director John Moss presented the Staff Report. He noted that after review, the Planning Staff considered the allowing of adult businesses as conditional uses in the B-2, Community Highway Business District, and B-3, Central Business District, as well as the M-l and M-2 Districts. The Planning Director then presented to the Commission a map showing where an adult store could be located In each of the four zones. Commissioner Weaver asked If the Planning Staff had reviewed the language in the pro- posed ordinance concerning printed material and paraphernalia. City Attorney Planalp stated that he has reviewed the language. He noted that the language of the proposed ordinance falls within the confines of the U. S. Supreme Court actions concerning the location of adult stores. Mr. John Parker, 1612 South Tracy, asked who will determine whether or not certain printed material or paraphernalia is obscene, and therefore prohibited in stores other than adult stores. City Attorney Planalp stated that the Court would determine whether or not a particular item is obscene, upon filing of a complaint by a private citizen under the Zone Code. He noted that the City Manager or City Attorney would make a discretionary decision on whether I or not to file the complaint with the Court. The City Attorney does not feel that the Commission would become involved In any way in determining whether or not an item is obscene. Commissioner Weaver asked if the City Attorney feels that the definition of obscenity In the proposed ordinance is so well defined because of case law that there is no question of what would be sustained In litigation. City Attorney Planalp stated that the Montana State Legislature has adopted a defini- tion of what is obscene. The definition in the proposed Zone Code Amendment ordinance Is an expansion of that definition. He noted that the definition currently in the proposed ordinance is untested at this point. However, the definition adopted by the Legislature has been upheld by the U. S. Supreme Court. Commissioner Mathre expressed reservations about expanding the definition adopted by the Legislature. She noted that the definition adopted by the Legislature, which is in the Montana Code Annotated, would suffice in defining that which is obscene. She feels that the definition listed in the ordinance should be limited to that which is listed in the State Code. She also suggested elimination of the sections dealing with specified anatomical areas and specified sexual activities. Commissioner Anderson asked how the definition of what is obscene in the State Code compares to the Miller definition of what is obscene. City Attorney Planalp stated that the definition listed in the Montana Code Annotated is based on the Miller decision. He noted that the State Code should be used when consider- ing a definition of what is obscene rather than the Miller decision. I Commissioner Mathre stated that the B-3, Central Business District, Is basically estab- lished to serve the needs of the fami Iy. She noted that adult uses and serving the needs of the family do not complement each other. She feels that the B-3 zone should be eliminated from the list of zones where adult stores can be located. Mayor Stiff stated concern about the proposed definition of what Is obscene. He noted that the definition would eliminate publications which are currently sold in grocery stores. If a new store were to open in the same zone and could not sell those same publications, it might create problems. 11-01-82 '); c"l City Attorney Planalp noted that the First Amendment of the Constitution protects all printed material except that which is obscene. He noted that the State Code defines what is obscene. The City Attorney noted that enactment of the ordinance does not necessarily mean that the City would be required to make a decision on what is obscene. However, he recom- mended that the definition in the State Code be inserted in the proposed ordinance. Planning Director Moss noted that the Planning Staff had researched the subject and is attempting to provide the Commission with as much additional information as possible. He I noted that the definition in the proposed ordinance was taken from the City of Detroit code. He noted that several other cities have adopted that definition, and it has been upheld by the U. S. Supreme Court. The Planning Director agreed with the City Attorney that the definition of what is obscene as listed in the State Code should be substituted in the ordinance. Commissioner Weaver asked what the proposed Zone Code Amendment is trying to ac- compl ish. Planning Director Moss stated that the Amendment attempts to prevent the concentra- tion of two or more adult businesses in close proximity and attempts to avoid the blatant adult businesses that stand out and create a carnival atmosphere. He also noted that adult businesses would be less in conflict with the M-l and M-2 Districts than any other zones. Mayor Stiff continued the public hearing to November 15, 1982 and requested that the City Manager and City Attorney revise the proposed ordinance by replacing the definition of what is obscene with the definition from the Montana Code Annotated and providing that the adult businesses be allowed as a conditional use in the M-l and M-2 Districts. Public hearing - Zone Map Change - M-2- T to M-l - Joseph W. Sabol - Lots 14, 15, 16, 17, 18 and 19 and a portion of Griffin nr'lve oT fne -aoraon lIfanaevllle State School ~ectlOn -Sub division This was the time and place set for the public hearing on the request on behalf of Joseph W. Sabol for a Zone Map Change from M-2- T to M-l on Lots 14,.15, 16, 17, 18 and 19, and a portion of Griffin Drive of the Gordon Mandeville State School Section Subdivision. I This tract of land contains six parcels and is approximately twenty acres in size. The site is located along the east side of North Seventh Avenue between Griffin Drive and the railroad overpass. Mayor Stiff opened the publ ic hearing. Planning Director John Moss presented the Staff report. He noted that the area con- tains commercial development at the present time. The Zoning Commission recommended that the Commission approve the requested zone change from M-2-T to M-l, with the "T" overlay to remain because the tract of land is located along a major entrance to the city. Mr. Joseph W. Sabol, Attorney representing the applicants, stated that he represents fou r of the six landowners. The other landowners include the State of Montana and an out- of-state corporation. Mr. Sabol also noted that this tract of land is known as the North Seventh Annexation, which was recently annexed to the City. Mr. Sabol stated that one of the questions on the application for a Zone Map Change is why do you want the change? He noted that the requested zone change would provide for the way that the area is currently developing and future contemplated trends. He noted that the businesses in the area are more light industrial than heavy industrial. He also noted that the area is mostly developed at the present time. Mr. Sabol also noted that the zone change would prohibit asphalt plants and concrete plants from building on a major entrance to the City. Mr. Sabol stated that the "T" designation was not requested because conversations with the Planning Staff revealed that the "T" designation was being studied and might be eliminated. Mr. Sabol stated that he would have no objection to the placing of a "T" deslg- I nation on the requested M-l zoning and noted that the "P' does serve a useful purpose. Mr. John Mandeville stated that he has a parcel of M-l property directly across the road from this parcel. He noted that the "T" designation was placed on his parcel of property and noted that with the current economic situation, the costs of development on a parcel with the "T" designation are prohibitive. He suggested that the Commission not place the "T" designation on the parcel of land In question. 11-01-82 2Lr 7 Mr. Dave Penwell, Attorney for Theatre Operators, Inc., stated that the Starlite Drive-In Theatre is located on the State-owned land within the tract of land being considered. He noted that recreational uses are listed as conditional uses. He further noted that a non- conforming use is void if the business has been closed for 90 consecutive days. Mr. Penwell stated that a drive-In theatre is closed for more than 90 consecutive days each year, and thus would lose Its Conditional Use Permit. I Mr. Penwell requested that the City provide him with a letter stating that the requested zone change would not affect the location of the drive-in theatre on the State-owned land. He noted that Theatre Operators, Inc., is requesting that it be placed in no worse nor no better position than it currently has in the present zone. Mr. Penwell stated that the Zoning Commission recommended that the City send a letter stating that the Starlite Drive-In Theatre would be allowed to continue operating in its present location. City Attorney Planalp stated that recreational uses are conditional uses In the M-l and M-2 Districts. He also noted that the function of a drive-in theatre is to be open during the summer months and be closed for more than 90 days during the winter months. He stated that the Commission could note that fact and consider the drive-in theatre as not being closed if it is open during the summer and closed during the winter. Mayor Stiff closed the public hearing. A decision will be forthcoming in one week. Public hearinq - Conditional Use Permit - Vicki A. Harvey for Carl F. and Robin C. Berger - allow a day care center on Lots 6, 7 and 8, Block E, Hoffman's Addition (515 South Black) This was the time and place set for the public hearing on the request for a Conditional Use Permit on behalf of Vicki A. Harvey for Carl F. and Robin C. Berger to allow a day care center on Lots 6, 7 and 8, Block E, Hoffman's Addition (more commonly known as 515 South Black) . Mayor Stiff opened the public hearing. Planning Director John Moss presented the Staff report. He stated that the alley I separates this parcel of land from the Longfellow School property. The Planning Director stated that the yard is unfenced and has one off-street parking space in front. Ms. Harvey has indicated that she will provide off-street parking from the alley for one employee. The Zoning Commission recommended conditional approval of the request. Ms. Vicki Harvey, applicant, presented to the Commission two pictures of the site. She stated that parking is restricted to the west side of the street, where the house is located. She noted that no cars were parked on the street when the pictures were taken, and there are usually four to five parking spaces open in front of her property. Ms. Harvey also presented to the Commission copies of the rules for parents; a daily schedule; a petition signed by residents of the area stating no opposition to the location of a day care center at her residence; and a letter from Mike Meagher, Principal of the Longfellow School, stating that parents may use the school parking lot during after-school hours. Ms. Harvey stated that she must purchase the house before she can install the fence. Also, Mr. and Mrs. Carl Berger, from whom she is purchasing the house, must close the sale on this house before they can close on the house which they are purchasing. She must also remodel the interior of the house prior to opening on December 1, 1982. She will be licensed by the State and will have an enrollment of about twenty children. She plans to remove the garage within the next eighteen months and install a covered parking pad with access from the alley. Ms. Harvey stated that parents will drop their children off between 7:30 a.m. and 8:30 a.m. and will pick them up between 4:30 p.m. and 6:00 p.m. Mr. Carl Berger, current owner of the property, stated that one of the residents in I the area had stated concern about the additional traffic that a day care center would create. Mr. Berger noted that South Black Street is a dead end street. Also, the parents tend to carpool, which would save cars traveling on the street. Mr. Berger stated that he would not sell his house knowing it would become a day care center if he felt It would cause any prob- lems. Mayor Stiff closed the public hearing. It was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the Commission waive the customary one-week interval prior to a decision due to the fact that no 11-01-82 Q) J:,~- .~:...~" . protests were received and the apparent need for additional pre-school facilities. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor Stiff; those voting No, none. City Manager Evans noted that the Zoning Commission recommended conditional approval of this request. The third recommended condition includes the provision for installation of a fence prior to the opening of the day care facility or the signing of an Improvements Agree- I ment. Ms. Harvey has agreed to Install the fence prior to the opening of the day care facility. It was then moved by Commissioner Vant Hull, seconded by Commissioner Anderson, that the Commission approve the request for a Conditional Use Permit on behalf of Vicki A. Harvey for Carl F. and Robin C. Berger to allow a day care center on Lots 6, 7 and 8 t Block E, Hoffman's Addition (515 South Black), subject to the following conditions: 1. That the yard or play area be fenced to confine the children's activities to the property. 2. That adequate off-street parking be provided in the back yard of the property and that it comply with the off-street parking requirements of the Zoning Ordinance. 3. That the fence be installed prior to the operation of the day care facility. If this cannot be accomplished, the applicant must enter into an Improvements Agreement with the City of Bozeman and supply an acceptable method of security equal to one and one-half (1 i) times the amount of its cost and installation. 4. That the Conditional Use Permit be valid for a period of eighteen (18) months following the approval of the use. Prior to permanent renewal of the permit at the end of that period, the site and application will be re-evaluated and a report made to the City Commission for their action. If the use is in compliance with the intent of the application and the conditions granted by the City Commission, the permit will be permanently renewed. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre, Commissioner Weaver and Mayor I Stiff; those voting No, none. Adjournment - 8:55 p.m. There being no further business to come before the Commission at this time, it was moved by Commissioner Weaver, seconded by Commissioner Vant Hull, that the meeting be adjourned. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Weaver, Commissioner Vant Hull, Commissioner Anderson, Commissioner Mathre and Mayor Stiff; those voting No, none. ALFRED M. STIFF, Mayor ATTEST: Clerk of the Commission I 11-01-82