HomeMy WebLinkAbout1999-04-26 Minutes, City Commission
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MINUTES OF THE AGENDA MEETING/WORK SESSION/SPECIAL MEETING
OF THE CITY COMMISSION
BOZEMAN, MONTANA
April 26, 1999
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. The Commission of the City of Bozeman met in agenda meeting, work session and
special meeting in the Commission Room, Municipal Building, on Monday, April 26, 1999, at
3:00 p.m. Present were Mayor Stiff, Commissioner Smiley, Commissioner Rudberg,
Commissioner Frost, Commissioner Youngman, City Manager Johnson, Assistant City Manager
Brey, City Attorney Luwe and Clerk of the Commission Sullivan.
The meeting was opened with the roll call, Pledge of Allegiance and a moment of
silence.
Agenda Meeting - for reaular meetina and Dublie hearings to be held on Mav 3. 1999
Since this is an agenda meeting, only those issues requiring staff action are contained
in the minutes.
City Manager Johnson briefly reviewed the background information which was included
in the Commissioners' packets.
(6) City Attorney Luwe gave a brief overview of this ordinance, noting that it
supplants the statutory requirements pertaining to distances from churches and schools for
restaurant licenses only. He stressed that the licenses will still be subject to the conditional use
. process, at which time specific locations can be considered and a determination made on
whether the application is appropriate.
(7) City Manager Johnson stated that under this ordinance, the billing for collection
of solid waste is changed from annual to monthly, on the water and sewer bill.
(13, 14) Historic Preservation Planner Derek Strahn gave overviews on these two
items, characterizing them as straight forward. He indicated that staff has recommended
approval of both.
(15) Historic Preservation Planner Strahn stated that staff has worked closely with
applicant over the past several months, in developing a project which staff can support. He
gave a brief overview of the project, which includes removal of non-historic additions and
features and sensitive restoration of the building, along with conversion of the structure to
offices. He stated that on-site parking and a duplex for families in transition are also to be
constructed on the site, in a manner which preserves as much of the green space in the
northwest and southwest corners as possible. He then indicated that the Planning Board has
recommended the deletion of Condition No. 9 as proposed staff and the addition of language
pertaining to a loading zone, particularly in light of the testimony received from business
owners in the immediate area.
. Commissioner Rudberg noted the photos accompanying the application were very
beneficial.
Responding to Mayor Stiff, the Planner stated that staff supports the requested deviation
for two parking spaces for several reasons. He noted that the plan as submitted preserves the
only green space in this immediate area to the greatest extent possible, while providing more
on-site parking than most other businesses provide, with the exception of Owenhouse
Hardware. He stated that 21 parking spaces are to be provided on site, leaving either four or
six to be acquired through the cash-in-lieu process, depending on whether or not the
Commission approves the requested deviation.
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(16&17) Assistant Planner Joni Killebrew gave an overview of these applications for
annexation and zone map amendment, noting that the subject property currently contains a
single-family residence; and a church is proposed to also be constructed on the site, with
subdivision a possibility in the future. She stated the zoning is to be changed from "RS" to
"R-1 ", which is consistent with the urban residential land use designation in the master plan.
She indicated that the Fire Marshal has proposed the addition of one condition for annexation.
Work Session - (A) Presentation from Chamber of Commerce re activities and use of
. accommodations tax monies: and 18) Uodate re oroiects to be comoleted dQring Qocoming
construction season - City Engineer Brawner
(A) Presentation from Chamber of Commerce re activities and use of
accommodations tax monies
Included in the Commissioners' packets was a copy of the Bozeman Area Marketing Plan
for Fiscal Year 1999/2000, along with a copy of the proposed budget for the Convention and
Visitors' Bureau (CVB).
Mr. David Smith, Executive Director of the Bozeman Area Chamber of Commerce,
reminded the Commission that the 4-percent accommodations tax, or "bed tax", was enacted
in 1986. Under very specific criteria, nine different areas in the state qualify to receive monies
from this tax, and Bozeman receives approximately $60,000 per year to spend on marketing
the community. He briefly highlighted the distribution of the funds, noting that the Montana
Department of Commerce receives approximately 65 percent, Yellowstone Country receives
22 percent and Bozeman receives 11 % percent. He stated that, because of the growth in the
hotel market in Big Sky and West Yellowstone, the numbers for Bozeman are down this year.
Mr. Smith highlighted some of the figures pertaining to the importance of tourism to the
community. He noted the average tourist spends 4.3 days in an area; in Bozeman, the average
stay is 5.2 days. He also noted that the average spending for a family of four is $93 per day;
. in Gallatin County it is $115. He stated that, on a per capita basis, the revenue is in the
$2,000 range; in Gallatin County it is $4,900. He recognized that these higher figures are due,
in large part, to the beautiful area and the amenities.
Ms. Gwen Peterson, Director of the Convention and Visitors' Bureau, reviewed the
budgeting process and the marketing plan for the upcoming fiscal year. She stated the
Convention and Visitors' Bureau Committee is comprised of a cross section of people in the
community, and they develop goals upon which the budget for the year is then based. She
noted that those goals include increased tourism in the spring, fall and winter; promoting films
and commercials; and attracting meetings and conventions. She stated that, through
cooperative advertising with the State, the local monies can be stretched further.
Ms. Peterson noted that Bozeman's proximity to Yellowstone Park is beneficial, and the
two ski areas also draw people. She stated there are other outdoor recreational opportunities,
historic features and cultural attractions which draw people to Bozeman. She noted that
Bozeman's weaknesses included the increased construction and expansion of other hotels in
the general area, the lack of a large convention facility, and the image of cold winters.
Ms. Peterson briefly identified some how the $60,000 is to be spent this year, noting
that 20 percent can be used for administrative costs. She indicated that the Chamber is
working with Historic Preservation Officer Strahn to print a brochure for an historic walking tour
. downtown, which will highlight different stores and sites. She stated they will also continue
with the Internet site development, promote filming in the area, advertise in places like the
Minneapolis airport, participate in trade shows, and advertise in various publications.
Responding to Commissioner Rudberg, Mr. David Smith stated that the Chamber kept
what it had during the recent legislative session. He recognized that, unlike the general position
of the industry regarding the accommodations tax, he feels it could be increased to 6 percent
with the additional 2 percent being split between local infrastructure improvements and
possibly a reduction in local property taxes.
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Further responding to Commissioner Rudberg, Mr. Smith noted that under the legislation,
as written, the City designates who will receive the funds from the accommodations tax and,
in all instances in the state, the Chamber has been identified. He noted that the City of
Bozeman appoints a member of the Yellowstone Country board, which is the next higher level.
Mr. Smith indicated that the Chamber contributes approximately $55,000 toward
tourism, and that amount is combined with the $60,000 from the accommodations tax. He
then stated that the Chamber's books are audited annually to ensure that the monies are
properly spent.
. In response to Commissioner Rudberg, Mr. Smith stated the Chamber encourages
tourists to visit the downtown area and the Museum of the Rockies. He stressed that these
referrals will not change with the relocation of their office.
Responding to Mayor Stiff, Mr. Smith stated that, with the existing hotel convention
facilities, Bozeman can attract conventions with a maximum of 350 for a banquet. He noted
that the Student Union Building can accommodate more; however, the Chamber is "not high
in the pecking order" there. He stated that good sized convention facilities have recently been
constructed at Big Sky and West Yellowstone, but it's difficult to find people with private
monies who want to construct a larger convention facility than what currently exists. He also
noted that the air service makes bringing conventions to Bozeman very challenging because of
the price and the need to change planes.
The Commission thanked Mr. Smith and Ms. Peterson for their presentation.
(B) Update re projects to be completed during upcoming construction season -
City Engineer Brawner
Included in the Commissioners' packets was a copy of the accomplishments of the
Engineering Department during Fiscal Year 1999.
. City Engineer Craig Brawner distributed to the Commission a listing of .Summer 1999
Infrastructure Projects", dated April 24, 1999. He also posted a map depicting the water line
projects, sewer line projects and the street projects which will impact vehicular movement
through the community during the summer construction season.
The City Engineer briefly highlighted each of the projects on the list, noting that the
extension of Oak Street between North 7th Avenue and North Rouse Avenue is anticipated this
summer. He noted that the acquisition of right-of-way for the project is nearly complete, and
staff has approached the low bidder from over a year ago to see if he is willing to undertake
the project at the amount of the bid. He stated that if the bidder is willing to do so, staff will
move forward with the contract; and if he is not, staff will proceed with the rebidding process.
He then indicated that traffic will encounter possible disruptions at the tie-in points, and some
of the businesses in the immediate area may incur some access problems at various times.
The City Engineer then turned his attention to the 1999 Water Renovations Project,
which is a $750,000 project. He stressed that most of the lines are not new; rather, they are
replacement lines. He then briefly reviewed the streets which will be impacted by this project,
including portions of Front Street, Tamarack Street, North Bozeman Avenue, North Montana
Avenue, South Black Avenue, South Willson Avenue, South Tracy Avenue, West Peach Street,
and North 6th Avenue. He noted that most of these replacements are designed to address
. undersized lines and to improve fire protection flows. He stressed that the water system is
generally in good shape, with a relatively low breakage rate; and it is important to remain
proactive in addressing undersized lines and potential problem lines before they become an
issue.
In response to questions from City Manager Johnson, the City Engineer stated that
minimal disruptions in service should occur during the renovation of the water lines because
temporary services will be installed. He then indicated that those services are above ground
lines, generally connected from headers on the fire hydrants to the hose bibs on the houses,
and they do not run through the meters.
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City Engineer Brawner stated that no chip seal is planned for this year; however, milling
and overlay will occur on several sections of street. He stated that, with the increased monies
being earmarked for capital improvement program items, coordination of water, sewer and
street projects is imperative, to ensure that newly-constructed or rehabilitated sections of street
are not immediately torn up. He noted that, as a result, street improvement projects are being
held to a minimum. He then indicated that, through a GIS grant, software for a pavement
management system is to be acquired, and that software will help to identify needed street
improvements as well as water and sewer improvements.
. The City Engineer stated that the construction of West Beall Street between North 23rd
Avenue and North 25th Avenue should proceed quite rapidly after the bids are awarded, and
traffic disruptions should occur only at the tie ins.
Under sewer renovations, the City Engineer stated that the 1998 project will be
completed this summer. He noted that the remaining work involves Insitu, which is a form of
slip lining. He stated that, because of the good price received for this work, 1,000 feet of line
has been added. He noted that this work results in minimal traffic disruptions and, generally,
the disruptions to sewer service will be for short periods of time when the slip line is being
installed and before the router is used to cut the openings for service lines. He indicated that
residents in the affected area will be contacted ahead of time and asked to minimize sewer
usage since their capacities will be limited to the size of the service line.
City Engineer Brawner stated that the installation of the Northwest Waterline will result
in some traffic disruptions, particularly along Simmental Way and Baxter Lane. He also noted
that this project could impact Valley Center Road and Commerce Way. He stated that West
Oak Street, west of North 19th Avenue, will also be impacted by this project as well as by
construction traffic during the summer.
The City Engineer then briefly highlighted some of the street projects pertaining to
specific projects, including the small extension of Arnold Street, development of a portion of
. North 8th Avenue, paving of West Beall Street between North 7th Avenue and North 8th
Avenue, and the southward extension of South 11 th Avenue and addition of turning lanes on
Kagy Boulevard.
City Engineer Brawner noted that improvements are anticipated on North 19th Avenue,
including two additional lanes and a turning lane between West Oak Street and Baxter Lane,
the installation of traffic signals at West Oak Street and Baxter Lane, and enhancement of the
signal and intersection at Durston Road.
In response to questions from Commissioner Frost, Director of Public Service Phill Forbes
reviewed the various sources of funding for the North 19th Avenue improvements from West
Oak Street to Baxter Lane, which is anticipated to cost between $700,000 and $800,000. He
indicated that urban funds, which are administered by the
Montana Department of
Transportation, is one of the sources and contributions from private developers is another.
City Manager Johnson noted that $155,000 in impact fees was to be used for the
project, but those funds have now been frozen. He stated that the private developers have
indicated a willingness to split that portion of the costs among themselves and are requesting
a 100-percent credit for those costs if impact fees are determined valid and remain in place.
City Engineer Craig Brawner stated that Story Mill Road is now being improved from
Mcllhattan Road to the landfill, and the temporary access to the landfill is being used. He
. projected that the road will be closed for three to four weeks. He noted that Manley Road may
also be widened this summer as part of the Gallatin Park Subdivision project.
The City Engineer noted that the 1998 ordered sidewalk project and ordered repair
project will be bid as a single package next month and should be constructed later this summer.
He noted that this package includes the installation of sidewalks around Christie Fields and
along Langohr Park; and cautioned that CTEP monies have been earmarked for this project,
which may result in delays in this project.
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Commissioner Rudberg asked that the timing of the sidewalk installation be carefully
considered in light of the heavy usage of Christie Fields for youth sports.
The City Engineer noted that a significant amount of private subdivision projects are
being undertaken at this time, encouraging the Commissioners to "just look north of Durston
Road".
Responding to questions from Mayor Stiff, City Engineer Brawner turned his attention
to Durston Road between North 7th Avenue and North 19th Avenue, noting that during the
. preliminary budget presentations in February, the Commission directed him to proceed with that
project. He noted that the preliminary design report has been received, and staff has prepared
a three-page response. He then indicated that staff will raise the priority of this project and be
prepared to submit a report back to the Commission in June.
Commissioner Rudberg voiced her concern about the installation of turn lanes on Durston
Road, noting that vehicles waiting to turn help to slow traffic along that roadway. She noted
that if turn lanes are installed, this road will be like North 19th Avenue.
Commissioner Rudberg then encouraged staff to publish the various traffic disruptions
throughout the summer, noting it will help people plan their movements around the community.
The Commission thanked the City Engineer for his report.
Discussion - Commissioner croiects
Commissioner Youngman stated that the Director of the Food Bank has requested a
proclamation for the food drive being conducted by the mail carriers on May 8.
The Commissioners agreed to add the proclamation as a line item on next week's
. agenda, so those involved can be acknowledged.
Discussion - FYI Items
City Manager Johnson presented to the Commission the following "For Your
Information" items.
(1 ) Letter from Willis Vandiver, 1020 West Story Street, dated April 22, thanking the
City for picking up additional compost materials.
(2) Letter from Valerie Harms, 3701 Ravalli, dated April 20, regarding the proposed
Parkway Place Condominium project.
(3) Copy of the plan for the proposed Burke Park parking lot.
(4) Copy of Resolution 1999-15, as adopted by the County Commission on April 20,
1999, amending the boundary to include the Bozeman extraterritorial planning jurisdiction and
establishing a county zoning district.
(5) Copy of a press release from SkyWest Airlines announcing a new commuter flight
between Salt Lake City and Bozeman, beginning July 1.
. (6) Letter from the Gallatin Valley Land Trust, dated April 21, inviting the
Commissioners to attend dedication of a segment of the Highland Ridge Trail for Chris Boyd,
founder of the Gallatin Valley Land Trust.
(7) Agenda for the Downtown Bozeman Improvement District Board meeting which
was held on April 22, along with minutes from their meetings of February 18, March 25 and
April 13.
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(8) Agenda for the Montana Transportation Commission meeting to be held on May
12 in Libby.
(9) Agenda for the Development Review Committee meeting to be held at 10:00 a.m.
on Tuesday, April 27, in the Commission Room.
(10) Agenda for the Design Review Board meeting to be held at 3:30 p.m. on Tuesday,
April 27, in the Commission Room.
. (11) Agenda for the County Commission meeting to be held at 1 :30 p.m. on Tuesday,
April 27, at the Courthouse.
( 12) City Manager Johnson submitted the following. (1) Stated that he and Dennis
Burr gave a presentation to the Montana Municipal Clerks, Treasurers and Finance Officers
Institute and Elected Officials Workshop on Thursday afternoon. He noted that they provided
some late breaking information on legislation as it impacts local government revenues, although
not all of those effects are known even yet. He stated that initial figures suggest Bozeman will
lose $89,000 in revenue, largely due to restructuring of the vehicle registration fees. He noted
that many questions remain about the State's reimbursement and whether it will continue, and
concluded by stating it appears that the actions taken during this legislative session have
repealed 1-105. (2) Stated that he and Administrative Services Director Gamradt are working
on an educational advertisement to be placed in the newspaper regarding the water and sewer
rate increases.
( 13) The City Manager stated he has received a letter from Lowell Springer, dated April
21, requesting Commission clarification on some of the conditions of approval of the
conditional use permit for the StoneRidge Planned Unit Development. He indicated a
willingness to develop a staff report for Commission consideration in conjunction with this
request.
. Following discussion, the Commissioners indicated a willingness to consider this request
if staff is unable to satisfactorily clarify the condition and resolve the issues.
(14) Assistant City Manager Ron Brey provided a brief report on his recent trip to the
Greater Open Spaces City Management Association (GOSCMA) Conference, held in Moscow,
Idaho, on Wednesday, Thursday and Friday last week. He noted that this region focuses on
training, and characterized this year's as better than past sessions. He noted that the topics
covered included cultural tourism, leadership, and community planning, and gave a brief
synopsis of each of those topics.
( 15) City Attorney Luwe stated that he has undertaken a reorganization in his office,
under which his attorneys have been assigned to various departments. He characterized this
as a subtle change in the way his department operates, and is designed to create better
working relationships with specific departments and should result in better efficiencies.
Break - 4:53 to 5:03 p.m.
Mayor Stiff declared a break from 4:53 to 5:03 p.m., in accordance with Commission
policy.
. Sian in a of Notice of SDecial Meetina
Each Commissioner, in turn, signed the Notice of Special Meeting.
Continued consideration of staff request for revocation of Kennel License issued to Ellvn
Murohv. 506 North Bozeman Avenue
Ms. Ellyn Murphy distributed copies of the testimony she submitted at last week's
meeting.
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Mr. Robert Kolesar continued his testimony, reminding the Commission that he is doing
so because of Ellyn's disabilities and difficulties with speaking. He stated they did not attend
the Commission meeting at which the original kennel license was issued because they were not
notified; and they were also not notified of the restrictions since they were not reflected on the
face of the license and no other notice, written or oral, was forwarded until they requested a
copy of the minutes from the original approval as they prepared for this hearing.
Mr. Kolesar stated that when his wife's father asked, she agreed to take the third dog
and, when complaints were received, they were promptly addressed. He then stated that
. continued and repeated howling is not allowed at their house, although there are other dogs
in the neighborhood who do keep on barking. He also indicated that the dogs, at this time,
have been trained not to bark at other dogs or people along the fence and, if they do so, he
immediately takes the proper steps to chastise them and take them into the house.
Mr. Kolesar observed that most dogs bark at times, and he doesn't know how to stop
that natural tendency. He stated that, in fact, many of the other dogs in his area are not as
well trained as his, and bark when someone passes by the fence.
Mr. Kolesar stated that in January 1999, Mr. Shields complained to the Animal Control
Officer about non-stop barking. He noted that Ellyn followed up on that complaint by leaving
Mr. Shields a note that she wanted to get along, but received no response. He then indicated
that Ellyn cannot solve problems she knows nothing about, and it is difficult to cooperate with
someone who will not communicate.
Mr. Kolesar stated that his wife was disabled in a devastating 1989 rock climbing fall;
and she has since learned to walk and talk. He noted that rehabilitation has been a lengthy
process, and she has recovered further than the doctors had indicated would be possible. In
fact, he showed the Commissioners pictures of Ellyn on top of the Bridger Mountains recently,
noting that she reached the top under her own power. He stated that their "therapy dogs"
provide her with protection on their walks in the woods, ensuring that she does not encounter
wild animals from which she is unable to run. He then indicated that it is important for the
. dogs to bark, particularly when warning them of danger and, as a result, he does not believe
bark collars are a viable option.
Mr. Kolesar stated that the simple act of caring for the dogs and being responsible for
them is good therapy for his wife. He stated that having the kennel license is an important part
of the therapy, since it helps to integrate his wife into society and gives her responsibilities.
Mr. Bob Kolesar stated he has a tape showing Ellyn howling with her dogs in the house
on a Sunday afternoon and indicated that this is part of her speech therapy because it
strengthens her voice and improves the clarity of tone. He then asked if this type of activity
is to take place inside the house, or if they could do these exercises in the yard as well. He
encouraged the Commissioners to identify reasonable rules, particularly in light of the
therapeutic value to his wife. He indicated that, in exchange for retaining the kennel license,
he is willing to take further reasonable steps to address Mr. Shields' problems. He stated a
willingness to construct a solid wood fence to baffle the sounds and to keep his dogs from
seeing other dogs. He also indicated a willingness to agree to keep their dogs in the house
during the day when no one is home, and stated he has no problem with the prohibition against
leaving them alone overnight or longer. He asked that agreed upon quiet hours be identified,
recognizing that 9:00 p.m. to 9:00 a.m. are traditionally recognized as quiet time. He also
indicated that he could work with Animal Control Officer Lien and possibly the City's ADA
person to affirmatively and immediately address any other problems that Mr. Shields may have
. or which might arise in the future. He concluded by encouraging the Commission to allow
them to retain the kennel license.
Ms. Helene Orenstein, attorney representing Ms. Murphy, stated that Mr. Kolesar has
testified to the facts in the case, and her purpose is to review the law. She noted that she
prepared a brief which has been submitted to the Commission; however, after preparing that
brief, she received a copy of the new animal control ordinance. As a result of that new
information, she has updated her brief, copies of which she distributed to the Commissioners.
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Ms. Orenstein stated that the Americans with Disabilities Act is very pertinent to this
situation, indicating she feels that those provisions apply and that her client is entitled to
certain protections and rights under that act. She stressed that one of those rights is her
privilege to have a kennel license. She recognized that Ellyn must comply with the license but,
under the ADA regulations, the City has the obligation to work with her and to help her
succeed. She indicated that her client is more than willing to work with Mr. Shields and others
in the neighborhood and asked that the Commission provide adequate direction to ensure
success.
Ms. Orenstein noted that Ms. Murphy characterizes the dogs as "her children" and
. stressed their importance to her. She stated that the ADA requirements state the City, or
public entity, is obligated to make reasonable modifications in policy and practices or
procedures to avoid discrimination on the basis of the disability. She asked the Commissioners
to carefully read the brief she has submitted.
Ms. Orenstein recognized that her client's dogs may not be $5,000 dogs for a blind
person, but they clearly assist her and are important to her. She noted they provide
companionship and a lot of enjoyment, as well as providing safety for her. She indicated that
the dogs help Ellyn with her communication skills, her speech therapy and her physical therapy.
Ms. Orenstein noted that Mr. Kolesar was a very successful attorney in the community
when Ms. Murphy had her accident, and gave up that practice to assist in his wife's
rehabilitation. She characterized the rehabilitation as successful, attributing much of that
success to his efforts. She noted that, while last week's testimony reflected the strides that
Ellyn has made in her speech therapy, it also demonstrated the need for continued therapy.
Ms. Orenstein asked the Commission to consider Ellyn's situation when making the
decision on this kennel license, reiterating her position that the City has an obligation to help
Ellyn succeed with reasonable modification.
Ms. Orenstein then reviewed the revised ordinance as it pertains to nuisance, stressing
. that it references "neighbors" as plural, not singular. She stated that continued and repeated
howling, barking or whining is considered illegal conduct, but barking that is not continued or
repeated is not considered a nuisance and is not illegal. She then reviewed the statutory
definition of criminal nuisance, which includes the requirement that the nuisance interferes with
the comfortable enjoyment of live or property by an entire community or neighborhood or by
a number of persons. She forwarded her position that the barking on the tape shown by Mr.
Shields does not reflect continued or repeated barking and is not disturbing to a considerable
number of persons or a neighborhood.
Ms. Orenstein stated that "one neighbor's noise could be another neighbor's nuisance".
She noted that this can include mowing lawn early in the morning or noisy children in a
restaurant.
Ms. Helene Orenstein stated the sounds and noises that Ellyn makes might be offensive
to those who don't know her, but they reflect a significant amount of progress to those who
know her, and Bob Kolesar understands everything she says.
Ms. Orenstein stated she hopes the Commissioners will not hold Mr. Kolesar's long hair
against him or consider it when making a decision on this kennel license, noting that he did not
have long hair when he was practicing.
. Ms. Orenstein stated that when her client obtained the new third dog, she was not
aware of the conditions that had been imposed on the original kennel license and, in fact, did
not learn of those conditions until she requested information from the City Attorney in
preparation for this hearing. She stated that, because Ellyn did not know about the restrictions
on the kennel license, she agreed to accept the new dog when her father was no longer able
to keep it. She characterized Ellyn's father as a very important figure in her life, and being able
to take his dog gives her a purpose in her life and makes her feel needed, both of which are
important factors in her rehabilitation.
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Ms. Orenstein stated the tape shown by Mr. Shields was approximately five minutes
long and showed the dog sitting and making his noise. She stated that if Ellyn had been
notified of this noise, she would have attempted to work with Mr. Shields and resolve the
situation. She noted that Animal Control Officer lien also indicated that her clients are willing
to address the problems when they are identified and brought to their attention.
Ms. Orenstein stressed that this is not a dog free neighborhood, as evidenced by the
map shown by Mr. Kolesar. She then concluded by asking that the City give Ms. Murphy an
opportunity to address the issues and problems that have been identified.
. Animal Control Officer Connie lien characterized this as a "difficult situation for a lot of
years", noting that it has been ongoing for approximately eight or nine years. She stated that
she has tried to work with the parties involved to resolve the situation, noting she has talked
to Mr. Kolesar numerous times, has talked to Ellyn a few times and has talked to Mr. Shields
in excess of twenty times. She noted that when she left messages for Mr. Kolesar, he always
called back, and he was willing to cooperate and try to resolve the problems.
Animal Control Officer Lien stated that she has witnessed the dogs barking on several
occasions, although she cannot confirm that the barking is frequent. She noted that when she
has contacted Mr. Kolesar about the dog barking, he has admitted the dog does bark, but he
is frequently gone. She suggested that Mr. and Mrs. Shields have a reasonable and rational
complaint, noting they should have a expectation of peace and quiet. She recognized that the
confining nature of city life makes dog ownership difficult, particularly when small yards are
involved.
The Animal Control Officer noted that the number of complaints has increased since the
new dog was acquired, and its unique bark makes it easily identified. She indicated that, with
those increased complaints and Mr. Shields' willingness to make a formal statement, she felt
a general nuisance exists and needs to be addressed through the revocation process, thus the
reason she submitted her request to the Commission. She reviewed a portion of the definition
of "nuisance", which states"... any animal that unreasonably annoys humans, endangers the
. life or health of persons or other animals, or substantially interferes with the rights of citizens,
other than their owners, to enjoyment of life or property..." She noted that Mr. Shields has
mentioned lost sleep, which is a health issue, in addition to the disruption of his peace and
inability to enjoy his property.
The Animal Control Officer stated that Mr. and Mrs. Shields approached the subject
kennel license in good faith, noting that when the initial kennel license application was
processed in 1996, she anticipated that they would oppose the license. She noted, however,
that Mr. Shields indicated he would not oppose the license, in anticipation that it could actually
improve the situation with the three existing dogs. She concluded by stating that she has
talked to Mr. Kolesar and Ms. Murphy on many different occasions about the complaints. She
stressed that she has tried to make this situation work, but realizes it does not seem to be
possible, so she has sought revocation.
Responding to City Attorney Luwe, Animal Control Officer Connie lien confirmed that
she did not provide notification of the conditions for approval of the kennel license to the
Kolesars; however, she stated the Finance Department provides that information in conjunction
with the issuance of the license.
Mr. Fred Shields stated that what Mr. Kolesar has described as "a minor problem" is a
violation of his rights. He expressed concern that neither Mr. Kolesar nor the City has done
. anything to address the disruptions that these dogs have created, stating he does not know
how many times over the last seven or eight years he has talked to different City personnel
without results. He noted that this "minor problem" has caused his health problems and has
caused his wife to change her way of living, including her hours of work because she cannot
sleep during the day and work at night. He stated that the dogs are left outside and bark a lot
during the day, and Mr. Kolesar is gone much of the time, so he is not aware of it. He noted
that the video tape showed only five minutes of the barking that takes place on a regular basis,
noting that the Police Department can verify other times that barking has occurred.
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Mr. Shields noted that Mr. Kolesar has accused him of cursing at Ms. Murphy. He
stressed that he has never cursed at Ms. Murphy; however, he has cursed at the dogs in front
of her, but not threatened to kill them. He noted that Mr. Kolesar has indicated the three dogs
are needed to protect his wife; however, he Questioned how much protection they provide
when Mr. Kolesar takes them with him.
Mr. Shields noted there has been a lot of testimony about ADA and Ellyn Murphy's
rights. He suggested that, just because Ms. Murphy was injured, he and his wife have not lost
their rights. He stated that they have a twelve-year-old grandson who has muscular dystrophy
. and is truly disabled. and they will never see him throw a baseball or football or see him walk
with a dog. He noted, however, they do not want to see him use his disability as a reason or
an excuse for causing someone else to lose his Quality of life or take away his right to peace
and Quiet and the enjoyment of his own yard and home.
Mr. Robert Kolesar reiterated his position that it is not always his dogs that create the
noise which disturbs Mr. Shields. He also Questioned how he is supposed to solve a problem
that he does not even know about.
Ms. Helene Orenstein stated Ms. Murphy is not taking advantage of the situation,
stressing the importance of incorporating disabled persons into the system, which is the
purpose of the ADA. She concluded by stating her clients are willing to work with the City and
asked that they be given a chance to do so.
Mayor Stiff closed the public hearing.
Commissioner Rudberg indicated she has some problems with the arguments that have
been forwarded, particularly since her step-daughter is a Downs Syndrome child and her son
has hair longer than Mr. Kolesar's. She stressed that this hearing is about a nuisance dog, and
a problem that has existed for a number of years. She noted that the minutes from when this
kennel license was considered in 1996 list the conditions of approval, and those conditions
include placing the dogs in a kennel or at the home of the person tending them, and that the
. license is for the three existing dogs. She stated that bringing a new third dog into the home
under this license was inappropriate.
Commissioner Rudberg stated that she has encountered problems with dogs barking in
her own area, and she has a problem with non-stop barking and difficulty enjoying one's own
back yard. She noted her biggest concern is allowing this license to continue, when the
fundamental purpose of the license is to protect the peacefulness of the neighbors. She stated
that a dog has to abide by what is acceptable in the community, and in this instance she does
not feel that has been accomplished. She concluded by stating she cannot support the
continuation of this kennel license.
Commissioner Smiley stated that, as a social worker for 28 years, she has worked with
all types of people, including those with long hair and those who have had strokes and other
ailments; and she is very familiar with service dogs. She noted that service dogs are highly
trained and do not bark. She stated, however, she does recognize the validity of the argument
for barking when one is walking through the woods. She noted that Mr. Kolesar and Ms.
Murphy have indicated a willingness to work with the City, but this situation has gone on for
years and years. She stated that a service dog must operate under the City laws. She
concluded by noting that, in light of the length of time that problems have existed at this site,
she cannot support continuation of the kennel license.
. Mayor Stiff noted that, as a handicapped person for most of his life, he has attended
many meetings for the handicapped. He stated that he has empathy for Ms. Murphy; however,
this situation has gone on for a long time, and he cannot support continuation of the kennel
license.
Commissioner Youngman voiced concern that, with revocation of the license, the City
will have less control and the ability to solve the situation constructively for the neighborhood.
She noted that with a kennel license, conditions can be established, and expressed concern
that the barking problems could continue with two dogs rather than the three dogs. She noted
that the video tape revealed at least two of the three dogs bark. She agreed that the problem
04-26-99
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has been allowed to continue for years too long. She stated that it should not have taken so
long to reach this point in the hearing process, noting that the hearing has been rescheduled
a number of times. She suggested that a solid wood fence could help to alleviate some of the
noise problems, and a requirement that the dogs remain in the house when no one is home
could help further. She voiced an interest in providing a 90-day timeframe in which Ms.
Murphy and Mr. Kolesar could pursue solutions that would completely resolve the problem.
She then indicated her concerns about the comments on bark collars, stating that her
observations have revealed that bark collars stop dogs from barking when they are wearing
them, but don't seem to have any impact on the dogs when they're not wearing them. She
. suggested that hiring a professional trainer for all three dogs. who would verify the completion
of the training, could be another option to consider. She recognized that many of these options
should have already been tried, but suggested that delaying revocation of the license could
result in a better situation than revocation at this time.
Commissioner Frost stated that he, too, has many concerns about this situation, noting
that there are a significant number of dogs in the neighborhood. He stressed that this situation
should not have been allowed to continue for so long, noting that some good ideas for
mitigating the noise have been identified today but have never been attempted even though the
problem has existed for years. He voiced his support for revocation of the kennel license with
ninety days to implement mitigation measures. He noted that if that mitigation occurs, then
the license could continue but if problems arise again, it would be revoked.
Responding to Mayor Stiff, City Attorney Luwe stated that revoking the kennel license
only means that the third dog must be removed, but the other two can remain; and, if they
continue to bark, it would be an enforcement issue rather than a kennel license issue. He then
noted that Commissioner Youngman's suggestion is one way to address the issue.
Commissioner Rudberg asked who will monitor the situation during the 90-day period.
She then indicated that if this approach is to be considered, she cannot support a 90-day period
but might consider a 60-day period. She then questioned what steps might be available if the
revocation is delayed and the day after that period is up, the problems recur.
. City Attorney Luwe stated that if revocation is delayed. the next step will be to
determine if the mitigation is acceptable. He noted that if the problem arises again, the
Commission once again has the opportunity to revoke the kennel license or refuse to renew the
license at the end of a calendar year.
Commissioner Rudberg stated that she does not want to revisit this issue at the end of
60 days, and asked what action is required at this time to avoid that possibility.
City Attorney Luwe stated that revocation of the kennel license, with that revocation
being effective 60 days from today, would accomplish that. He noted that Mr. Kolesar and Ms.
Murphy would then have an opportunity to mitigate the problem, and if they can demonstrate
this mitigation works, the Commission would need to accept input from everyone involved and
make a determination on whether it is acceptable.
Responding to Commissioner Youngman, City Attorney Luwe stated that the intent of
the animal control ordinance was not to require that more than one neighbor file a complaint
to pursue a nuisance. He noted that to require multiple complaints, the language in the
ordinance should be revised to reflect "neighborhood" or "entire community".
Responding to comments and questions from the Commissioners, the City Attorney
. stated that at some point, the Commission must make a decision on whether the mitigation
efforts are adequate. He cautioned that the decision should be made in a manner that does not
automatically result in revocation based on just one complaint from one individual, without
taking the reasons for that complaint into consideration. He noted that, under what the
Commission has suggested, at the end of sixty days, the Animal Control Officer will report back
to the Commission and give the parties an opportunity to tell if the problem is mitigated or not;
and if it has been, the Commission could vote to reconsider the issue. He cautioned that the
mitigation options identified by the Commission during this discussion address only a portion
of the reasons for the requested revocation, but all of the issues must be addressed.
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It was moved by Commissioner Rudberg, seconded by Commissioner Frost, that the
kennel license issued to Ellyn Murphy, 506 North Bozeman Avenue, be revoked unless, within
the next sixty days, adequate mitigation measures are implemented to resolve the complaints
and problems that have been identified. The motion carried by the following Aye and No vote:
those voting Aye being Commissioner Rudberg, Commissioner Frost, Commissioner Youngman,
Commissioner Smiley and Mayor Stiff; those voting No, none.
Adjournment - 6:35 D.m.
. There being no further business to come before the Commission at this time, it was
moved by Commissioner Rudberg, seconded by Commissioner Frost, that the meeting be
adjourned. The motion carried by the following Aye and No vote: those voting Aye being
Commissioner Rudberg, Commissioner Frost, Commissioner Youngman, Commissioner Smiley
and Mayor Stiff; those voting No, none.
AL~o;?S~tc I~
ATTEST:
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ROBIN L. SQWVAN. _
Clerk of tRe-Co.riHni~~JDn
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