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HomeMy WebLinkAbout2003-09-15 Minutes, City Commission MINUTES OF THE MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA September 15, 2003 ***************************** The Commission of the City of Bozeman met in regular session in the Commission Room, Municipal Building, on Monday, September 15, 2003, at 7:00 p.m. Present were Mayor Steve Kirchhoff, Commissioner Marcia Youngman, Commissioner Lee Hietala, Commissioner Jarvis Brown, Commissioner Andrew Cetraro, Acting City Manager Ron Brey, Director of Public Service Debbie Arkell, Planning Director Andy Epple, City Attorney Paul Luwe and Clerk of the Commission Robin Sullivan. The meeting was opened with the Pledge of Allegiance and a moment of silence. None of the Commissioners requested that any of the Consent Items be removed for discussion. Minutes - Januarv 18. 2000. and June 10. July 14. Auaust 11. Auaust 25. SeDtember 2. SeDtember 8 and SeDtember 10. 2003 It was moved by Commissioner Youngman, seconded by Commissioner Hietala, that the minutes of the meetings of August 25 and September 8,2003, be approved as submitted. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Youngman, Commissioner Hietala, Commissioner Brown, Commissioner Cetraro and Mayor Kirchhoff; those voting No, none. Mayor Kirchhoff deferred action on the minutes of the meetings of January 18, 2000, and June 10, July 14, August 11, September 2 and September 10, 2003 to a later date. Consent Items Acting City Manager Brey presented to the Commission the following Consent Items. Commission Resolution No. 3619 - authorize City Manager to sian Change Order No. 4 for Wastewater Treatment Plant modifications - Williams Plumbing and Heatina. Inc.. Bozeman. Montana - add $3.710.04 and 1 calendar day COMMISSION RESOLUTION NO. 3619 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, APPROVING Al TERATION/MODIFICATION OF CONTRACT WITH WilLIAMS PLUMBING AND HEATING, INC., BOZEMAN, MONTANA. Acknowledae receiDt of aDDlication for annexation of 59.823 acres between Durston Road and West Oak Street. immediately west of Diamond Estates Subdivision No. 1 - McDonald land COmDany: refer to staff Authorize Actina City Manager to sian - Road Right-of-Way Easement - from City to John M. Mandeville and Donna R. Mandeville - SO-foot-wide riaht-of-way across Tract 1A. cas No. 2153 for access to Tract 2. cas No. 1723 lextendina west and south from Red Wina Road} Building InsDection Division report for Auaust 2003 Claims It was moved by Commissioner Hietala, seconded by Commissioner Brown, that the Commission approve the Consent Items as listed, and authorize and direct the appropriate persons to complete the necessary actions. The motion carried by the following Aye and No vote: those voting Aye being 09-15-03 - 2 - Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff; those voting No, none. Presentation re DroDosed discounts for senior citizens. Administrative Services Director Gamradt Administrative Services Director Miral Gamradt noted that staff has responded to Commission direction to pursue the possibility of discounts for senior citizens. He checked with the other large cities in Montana to determine what programs they have in place, and found that Great Falls has low-income discounts for sewer, offers senior citizen rates for garbage collection and 1 O-percent discounts for water; Helena has a low-income solid waste collection rate based on HUD criteria; Kalispell eliminated the base rate for water for all users with the idea that senior citizens probably don't use the full amount of water included in the base rate; and Butte provides a half-rate senior citizen bus fare. The Director stated it was his intent to identify a program that is simple to administer and does not require the City to verify information provided. The program he previously proposed was to eliminate the base rates for water and sewer for senior citizens upon submittal of an application certifying the age of the individual and a fixed income below a certain level. He noted the City Attorney has expressed legal concerns about the proposal and his research has revealed City Attorneys in other communities share those concerns, which revolve around discrimination based on age and/or income level. He suggested an alternative would be to fund the difference from the General Fund. Other options include seeking an Attorney General's opinion or legislative change. Responding to Mayor Kirchhoff, City Attorney Luwe stated that his primary concerns revolve around discounts for water and sewer services, particularly since State statute requires the rates be uniform for all users, noting that discounts for solid waste collection appear to be easier to accommodate. He then expressed his interest in seeking an Attorney General's opinion, which he cautioned could take approximately 120 days. He indicated that, if the Commission wishes to implement a discount program, monies could be taken from the General Fund to cover those costs. Further responding to the Mayor, Administrative Services Director Gamradt confirmed that senior citizen discounts would have negligible effect on the water and sewer funds. He cautioned, however, if that low-income discounts are implemented instead, the impact would be dependent upon the threshold established. He then noted that a review of discounts granted under the program for solid waste collection under the old billing system revealed that less than 100 were requested annually. Responding to Mayor Kirchhoff, the Director stated that the General Fund is the hardest to balance, so he cannot characterize any impact on it as negligible. He noted, however, that he does not believe using General Fund monies to make an enterprise fund whole would be a budget breaker. Responding to Commissioner Youngman, City Attorney Luwe stated that the statutes about which he is most particularly concerned apply to water and sewer services only and not to solid waste. Mayor Kirchhoff asked the Commissioners to indicate whether they support the City Attorney seeking an Attorney General's opinion; based on that input, the Mayor indicated they support seeking that opinion. Mayor Kirchhoff then asked if the Commission wishes to proceed with a discount program with the General Fund paying the discounted portion of the bill. Commissioner Hietala indicated he agrees that seniors deserve a break, but proposed that the base rate be eliminated; Mayor Kirchhoff cautioned that would have a substantially different impact than the discount program proposed. Commissioner Youngman noted that if the base rate is lowered, other rates will need to be increased and seniors will not see the type of reduction proposed. She then stressed it is important to recognize the base rate is to support the overall system and maintain the infrastructure; and she does not believe it would be in the City's best interests to lower that rate. Commissioner Brown indicated his support for the concept of reducing rates for seniors on fixed incomes if a legally viable approach can be identified. He stated that it is premature to take monies from 09-15-03 - 3 - the General Fund to support a discount program, noting he prefers to wait for the Attorney General's opinion before taking action. Commissioner Cetraro stated his support for seeking an Attorney General's opinion and then pursuing a discount program that would be defensible. Commissioner Youngman expressed her discomfort with waiting to implement a discount program, noting that it was first broached in May and to wait for an Attorney General's opinion would mean delaying it until at least next March. Based on the above discussion, Mayor Kirchhoff noted further discussion will be delayed until after an Attorney General's opinion has been received. City Attorney Luwe indicated he will place a high priority on seeking the Attorney General's opinion. Appellate hearing - reauest to overturn administrative decision to allow a dUDlex to remain on Lot 1. Block 1. Brunton-Palffv Rearrangement Subdivision - Harrv Townes. 514 North 10th Avenue. for DroDertv at 526 North 11th Avenue (C-03003) This was the time and place set for the appellate hearing requested by Harry Townes under Application No. C-03003, to overturn the administrative decision to allow a duplex to remain on Lot 1, Block 1, Brunton-Palffy Rearrangement Subdivision. The subject property is located at 526 North 11th Avenue and is owned by Scott Chelendinas. Mayor Kirchhoff opened the appellate hearing. Planning Director Andy Epple presented the staff report, beginning with a history of the property. He noted the subject property is located at the southeast corner of the intersection of Durston Road and North 11th Avenue and is zoned "R-2", Residential-Single Household. The house was built as a single- family structure in 1972, and it appears the house remained in single-family status until 1992, when the Polk directory lists two separate addresses. He stated the conversion to a duplex occurred without any record of a building permit being issued, and characterized that as not unusual in a college town. It appears the property operated as a duplex until 1999, when then Code Enforcement Officer Roy Beall received a complaint because the garage had been converted to a third dwelling unit. Mr. Beall wrote a letter to Ms. Daniela Lewkowicz, then owner of the property, advising her that the property was not zoned for multi- plexes and that the home was to be restored to single-family status. Following several discussions and negotiations, the owner agreed to remove the garage apartment, and Mr. Beall concluded that the duplex was a legal non-conforming use. That decision is the subject of this appeal. Planning Director Epple stated that the situation remained relatively quiet until the Fall of 2002, when Mr. Chelendinas purchased the property. In December 2002, a complaint was lodged with now Code Enforcement Officer Vicki Hasler about the garage apartment, and the new property owner was informed that it was unlawful and the property must revert to duplex status. Mr. Chelendinas was informed of his options and chose to pursue a conditional use permit to legitimize the garage apartment. That application met with a substantial amount of opposition and, as a result, Mr. Chelendinas withdrew it and agreed to eliminate the garage apartment. An inspection in June of this year revealed that the former garage apartment had been removed and the space was being used for storage. Planning Director Andy Epple stated that, after the conditional use permit application was withdrawn, Mr. Harry Townes requested the City require the subject property to revert to single-family status; and staff responded that it intended to honor the prior conclusion. As a result, Mr. Townes filed an appeal on behalf of the neighborhood on July 8, 2003. The Planning Director turned his attention to the role of the Commission in this appeal, as set forth in the Bozeman Municipal Code. He indicated that, at the conclusion of the public hearing, the Commission is to either uphold or overturn the administrative determination to allow continued use of the subject property as a duplex, noting that if the determination is upheld, the property will be considered a legal non- conforming use. 09-15-03 ._____.____.__._._n..__.... . - 4 - In response to Mayor Kirchhoff, Planning Director Epple stated he does not know how many other properties have uses that depart from the underlying single-family residential zoning designation. He noted, however, that Mr. Townes is bringing a similar appeal before the Commission at next week's meeting from this same neighborhood. Mr. Harry Townes, appellant, stated that Mr. Beall had no basis for declaring the subject property a legal non-conforming use. He cited from the staff report that there is "no record of criteria used to make this decision, nor of the compliance inspection having been done." He noted that Mr. Beall's letter dated June 1, 1999, specifically states".... the City of Bozeman recognizes the subject property has been used as a rental property for many years and that the downstairs has been rented as a separate dwelling unit. This property is, therefore, considered a 'legal non-conforming use' for the purposes of zoning." Mr. Townes reviewed the history of the subject property. He noted that a building permit was issued for a single-family residence on August 8, 1972, to Mr. George Miller. The records at the Clerk and Recorder's Office show that Jerry and Sue Waller owned the property from 1973 to July 1975 and that Patrick and Kathy Hayes owned it from July 1975 to 1992. Also, for a short period of time, the Montana Conference of Seventh Day Adventists owned the subject property. Mr. Townes stated a telephone to Dr. Hayes' office revealed his family did not use the property as a duplex and did not convert it into a duplex; thus, there was no history of prior use as a duplex and no grandfather status under the zone code adopted in 1973. He indicated that Mr. Beall's action eliminated the public process is generally followed in granting approval of a non-conforming or a conditional use. Mr. Townes suggested that Mr. Beall's action was essentially spot zoning and reviewed the three criteria established by the Montana Supreme Court for determining spot zoning. He noted that this requested use is different from the prevailing use, which is single-family residential; it involves a rather small area, one property; and it was designed to benefit one landowner at the expense of others. He stated the resulting use is incompatible with the surrounding properties and will hurt property values. He also noted it will created increased pressure for additional duplexes in the area. Mr. Townes concluded by asking the Commission to reject the prior administrative decision and to order the property at 526 North 11th Avenue to be brought into compliance with the "R-2" zoning designation. Responding to questions from City Attorney Paul Luwe, Mr. Townes stated he was never sure that the subject property was being used as a duplex, although he suspected it. He noted, however, that he became suspicious when the back yard was turned into a parking lot, probably three or four years ago. Responding to Commissioner Hietala, Mr. Townes stated he has nothing in writing from either the Wallers or the Hayes family. Ms. June Crawford stated she lives in the second house from the subject property. She voiced her concurrence with Mr. Townes' presentation, noting she helped him do the research. She then drew the Commissioners' attention to the traffic in this area, on both Durston Road and North 11th Avenue. She concluded by encouraging the Commission to support this appeal. Mr. Maurice Quanbeck, 520 North 11th Avenue, stated that the subject property is being used as a rental property. Since four unrelated adults can live in a dwelling unit, allowing this to remain as a duplex will allow up to eight unrelated adults to reside on the site. He feels that is too much and results in a situation that is out of control. Mr. William Gibson, 509 North 10th Avenue, expressed concern that allowing this type of change in use eliminates the protections afforded by zoning. He also cautioned that the infrastructure in the area has not been improved to accommodate a change in the number of dwelling units allowed. Ms. Jean McReynolds stated she lives a block away from the subject property but hears the noise from it. She asked that the property be converted back to a single-family residence. Ms. Victoria Drummond, 515 North 10th Avenue, distributed her written comments to the Commission, noting that her husband's family purchased the property in 1965. She voiced concurrence with Mr. Townes' presentation, noting she is concerned about property values and the quality of life in this neighborhood. She asked the Commission to reverse the administrative decision and return the property back to a single-family dwelling. 09-15-03 - 5 - Ms. Drummond acknowledged that an accessory dwelling unit is allowed in the "R-2" zoning district, but that is not what is occurring on the subject property. She then turned her attention to the covenants for this area. She acknowledged that they cannot be considered during this hearing, but suggested that neither good planning nor good zoning contradicts covenants. She concluded by noting the pictures attached to her comments show the rear yard has been turned into a parking lot, with a little sliver of grass. Responding to City Attorney Luwe, Ms. Drummond stated her mother-in-law remembers the subject property being used as a rental, but she cannot recall when it may have been converted to more than a single unit. Mr. Scott Chelendinas, property owner, stated he has owned the property for a little over a year, and purchased it with the understanding that the City had declared it a legal rental unit. He noted that two legal duplexes are located on the opposite end of the block. Mr. Chelendinas posted a landscape plan from Cashman Nursery, noting he plans to implement that plan for the site. He also plans to upgrade the property by painting, installing new gutters, a new deck and a new parking area. He then stated he would be much more concerned about renting this six-bedroom house as a single unit than as two units, noting he currently has three people upstairs and two people downstairs. He has given his telephone number to Mr. Quanbeck and has encouraged him to call if there are any problems and, to date, he has received no calls. He concluded by requesting the Commission allow the duplex to remain, noting that he feels the improvements he intends to make will result in a win/win situation for everyone. Responding to Commissioner Youngman, Mr. Chelendinas stated he lives down the street from the subject property and purchased it as a rental. Responding to City Attorney Luwe, Mr. Chelendinas stated he purchased the subject property without going through a realtor; and it was represented to him as a legal rental. He began the transaction when he was in Alaska and finished it upon his return to Bozeman. At that time, he assumed the third unit could also be rented and found it could not be when he attempted to validate its use. He then expressed concern that he is faced with a potential burden since he purchased the property with the understanding that the second unit was legal. Mr. Harlan Wells, 1405 South 5th Avenue, stated that, as a college student with friends who live in basement apartments, he is concerned about the potential of losing that type of housing if neighborhoods decide to pursue eliminating those that did not receive the proper approvals. Planning Director Andy Epple stressed that a single-family residence can be either owner-occupied or a rental unit under the zone code. He noted that the subject house may be been rented as a single-family unit for some time and then later converted to a duplex, with both units being rented. He indicated that staff research revealed when Ms. Lewkowicz owned the property, she did not live there but rented both units. He confirmed that an accessory dwelling unit would be allowed in this zoning district, but the owner must reside on the property, and the accessory dwelling unit may be occupied by no more than two persons. Responding to Mayor Kirchhoff, the Planning Director confirmed that, as a duplex, up to eight people may reside on this property; and with an accessory dwelling unit, four people could reside in the main unit and two in the accessory unit, for a total of six people. Mr. Harry Townes stated the other duplexes on the south end of the block are zoned properly. He also indicated he has no problem with rentals, but noted that they should be single-family rentals and not duplexes in the "R-2" zone. He encouraged Mr. Chelendinas to make the proposed site improvements regardless of tonight's decision. He voiced concern that the owner purchased the property without checking the zoning but depended on assurances from the seller. He concluded by acknowledging the City does not enforce covenants, but he believes the Commission would not want to be a party to breaking covenants. Since there were no Commissioner objections, Mayor Kirchhoff closed the public hearing. Commissioner Hietala noted the covenants have been in place since 1961; the property was zoned "R-2" in 1973; and it is unclear when this became a duplex unit. He feels that the facts in 1999, when Mr. Beall made his decision, are still relevant. As a result, he supports the administrative decision. 09-15-03 n....________ - 6- Commissioner Brown stated he, too, is prepared to uphold the administrative decision, noting it is clear a person in authority told the owner in 1999 that this property could be used as a duplex. Commissioner Youngman noted the Commission does not know when the property was converted to a duplex but, according to the staff report, it is clear that occurred after single-family zoning was in place. She noted Ms. Daniela Lewkowicz claims the unit was a duplex in 1992, which potentially conflicts with Mr. Townes' testimony that it was not a duplex when Dr. Hayes owned it. Regardless of those conflicts, it is obvious the home was a single-family residence until at least 1975. Commissioner Youngman expressed concern about starting a wave of reporting apartments in the middle of a school year, when people rely on that income and students rely on those affordable units so they can remain in school. She is also concerned about opening a can of worms and destabilization of the rental market, and about the applicant who innocently and in good faith bought a duplex. She stated, however, the evidence supports the neighborhood concerns, which are founded in the zone code. As a result, she feels the administrative decision should be overturned; however, she could support an application for an accessory dwelling unit on this site. Commissioner Cetraro indicated his support for upholding the administrative decision made in 1999. Mayor Kirchhoff stated his concurrence with Commissioner Brown's comments. He noted that the use of the property since 1975 is inconclusive; and Mr. Chelendinas purchased the property in good faith. He noted that the difference between an accessory dwelling unit and a duplex is insignificant and, as a result, supports the staff decision. Commissioner Brown noted that, by upholding the 1999 administrative decision, the Commission, in essence, denies the appeal. It was moved by Commissioner Brown, seconded by Commissioner Cetraro, that the Commission uphold the administrative decision to allow a duplex to remain on Lot 1, Block 1, Brunton-Palffy Rearrangement Subdivision. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Brown, Commissioner Cetraro, Commissioner Hietala and Mayor Kirchhoff; those voting No being Commissioner Youngman. Possible cancellation of September 29 Commission meetina Commissioner Youngman noted that, with so much on recent Commission agendas and meetings running so late, it has been difficult to schedule comprehensive discussions. As a result, she is concerned about cancelling a meeting when such discussions could be scheduled. She indicated that a comprehensive discussion on the unified development ordinance is critical, and suggested that if the public hearing is closed on September 22, the September 29 meeting would be an opportune time for that discussion. Acting City Manager Brey reviewed some of the items to be included on next week's agenda, noting some of them could result in continued discussions on September 29. Commissioner Cetraro noted that he has found the Commission will fill all allotted meeting times, although Mayor Kirchhoff has done a great job of moving the meeting along. He stated that the Commission has attempted to cancel fifth Monday meetings whenever possible, and he feels it is appropriate to do so once again. Mayor Kirchhoff indicated his support for cancelling the September 29 meeting, particularly in light of the Commission's "penchant for scheduling additional meetings." Commissioner Brown stated his support for cancelling the meeting, which is an afternoon session only. It was moved by Commissioner Cetraro, seconded by Commissioner Youngman, that the September 29 Commission meeting be cancelled. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Cetraro, Commissioner Brown and Mayor Kirchhoff; those voting No being Commissioner Youngman. Commissioner Hietala abstained. 09-15-03 _n _m...u___..". - 7 - Public comment No one submitted any comments under this agenda item. Discussion - FYI Items The following "For Your Information" items were forwarded to the Commission. (1) Memo from Associate Planners Chris Saunders and Jody Sanford, dated September 10, forwarding additional public comment and staff responses to the issues identified during the public hearings on the unified development ordinance, in preparation for the continued public hearing and discussion at the September 22 Commission meeting. Planning Director Epple asked the Commissioners to contact staff during the upcoming week if the information provided in the memo doesn't adequately address all of the questions and concerns they have previously raised. (2) E-mail message from Roger Koopman, Chamber of Private Enterprise, requesting that they be scheduled for a presentation to the Commission on September 22. Acting City Manager Brey asked if the Commission wishes to reconsider its grant to the Gallatin Valley Independent Business Alliance, as requested by Mr. Koopman. Commissioner Youngman suggested that, rather than receiving a presentation on reconsideration, the Commission encourage the Chamber for Private Enterprise to become involved as the Commission discusses criteria and implements priorities for the future use of development impact fees from large scale retail. She stated that, while she is comfortable with the Commission's previous decision, she feels it is important to set the criteria and procedure before allocating any more monies. Commissioner Cetraro stated that, while he was comfortable at the time the Commission made its decision, in part because a business plan was included, he acknowledges it may have been a hasty one. He then suggested that the Commission ask staff to submit a proposed procedure and criteria for consideration, rather than the Commission trying to draft one. He noted that special interest groups see the City as deep pockets, and it is important to have staff and the Commission involved in determining the policy and procedure to be followed. Commissioner Youngman expressed her support for having staff involvement in the process. She then noted the Commission has often asked for reports from those organizations to which it has given monies. Commissioner Brown indicated he is not willing to reconsider the Commission's previous decision. Mayor Kirchhoff noted there is no monitoring system in place, and it is important to establish a mechanism for oversight by the City. Commissioner Cetraro noted he feels an unbiased staff report on a request for funds is important prior to Commission action. Based on the discussion, Mayor Kirchhoff stated there is not adequate Commission support to reconsider its previous decision, but there is support for developing a system for considering future requests and monitoring the use of those monies. (3) Information on the Northern Rockies Bioneers Conference scheduled for October 17 through 19 at the Emerson Cultural Center. Responding to Acting City Manager Brey, several of the Commissioners characterized this as an interesting conference, but not one for which the City should provide financial support. (4) Updated list of planning projects to be considered at upcoming meetings, dated September 12. 09-15-03 - 8- (5) Notice of the public hearing on the Downtown Bozeman Transportation Improvement Study, scheduled before the Bozeman Area Transportation Coordinating Committee at 7:00 p.m. on Wednesday, September 24, in the Commission Room. (6) Copy of a draft resolution re the Gallatin National Forest, as submitted by Staff Attorney Cooper. (7) Agenda for the County Commission meeting to be held at 9:00 a.m. on Tuesday, September 16, at the Courthouse. (8) Agenda for the Development Review Committee meeting to be held at 10:00 a.m. on Tuesday, September 16, at the Professional Building. (9) Memos from Planning Secretary Carol Schott announcing that both the City Planning Board and Zoning Commission meetings for September 16 have been cancelled due to the lack of agenda items. (10) Acting City Manager Ron Brey noted that during the appellate hearing, Commissioner Youngman commented on questionable rentals within the community and described enforcement action as opening a can of worms and possibly destabilization of the rental market. He noted that, in the past, the Commission has chosen not to pursue those units on a systematic community-wide basis because of the potential of eliminating a large amount of the available affordable housing. He concluded by concurring that identification of rental units is difficult, and enforcement can be an extremely tough issue. (11 ) Planning Director Epple showed the Commission a copy of the Bozeman Center, a new mixed use development proposal on which Mr. Thomas Mosser is seeking input. He noted that the plan includes a 41-story tower and a 28-story tower, and does not seem to be responsive to the Commission's input on the previous plan. In light of Commissioner comments, the Planing Director indicated he will talk to the City Manager about the next step in the review process. (12) Planning Director Epple announced that the hospital board and the Recreation and Parks Advisory Board will participate in a mediated discussion on October 8. (13) City Attorney Paul Luwe stated that he attended a meeting in Helena on Thursday and Friday at the MMIA office. He noted that he provided a power point presentation on the MMIA program to a group of executives from the insurance industry, and offered to provide that presentation to any interested Commissioners. (14) Commissioner Youngman stated that she and Mark Evans, Executive Director of the Southwest Montana Building Industry Association, met last week to discuss ideas for implementation of the first time homebuyers' program. She noted that Mr. Evans identified Glacier Bank as having a nice single- family financing program; and he offered to ask representatives to make a presentation to the Community Affordable Housing Advisory Board. Adiournment . 9:11 p.m. There being no further business to come before the Commission at this time, it was moved by Commissioner Hietala, seconded by Commissioner Brown, that the meeting be adjourned. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff; those voting No, none. ATTEST: STd KI~F' Ma;or - ~J~ R IN L. SULLIVAN Clerk of the Commission 09-15-03 ------..------