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HomeMy WebLinkAbout1993-01-04 ccm ,..-00..:: .__u____.. --. , , ,I MINUTES OF THE MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA January 4, 1993 ***************************** . The Commission of the City of Bozeman met in regular session in the Commission Room, _ Municipal Building, January 4, 1993, at 3:30 p.m. Present were Mayor Swanson, Commissioner Frost, Commissioner Stiff, Commissioner Vincent, Commissioner Knapp, City Manager Wysocki, City Attorney Luwe and Clerk of the Commission Sullivan. The meeting was opened with the Pledge of Allegiance and a moment of silence. Minutes - December 7. 14. 21 and 28. 1992 It was moved by Commissioner Frost, seconded by Commissioner Stiff, that the minutes of the regular meetings of December 7 and 14 be approved as amended, and that the minutes of the regular meeting of December 21, 1992 be approved as submitted. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Frost, Commissioner Stiff, .commissioner Vincent, Commissioner Knapp and Mayor Swanson; those voting No, none. Continued DubUc hearing - DroDosed revisions to the zoning ordinance as initiated bv the City Commission and the City-County Planning Board (Z-92140) This was the time and place set for the continued public hearing on the proposed revisions to the zoning ordinance initiated by the City Commission and the City-County Planning Board, as contained in Application No. Z-92140. Mayor Swanson reopened the continued public hearing. Planning Director Andy Epple presented the staff report. He stated that, included in the Commissioners' packets, was a memo dated December 29, 1992, forwarding staff responses to the various issues raised at the public hearing which was opened on December 7 along with the .roposed revisions to the building height portions of the code as a result of meetings with the Design Review Board and representatives from the Southwest Montana Building Industry Association. The Planning Director stated that the Design Review Board reviewed the building height issue at its meetings of December 15 and December 22, after which they prepared recommended 01-04-93 ____.__._.u_.. . , . ' - 2 - modifications to the Planning Board's recommendation. He stated that the DRB is proposing that the building heights be adjusted to reflect three roof pitches instead of two: one for flat roofs, which range from flat to a maximum pitch of 3: 12; one for medium-pitched roof, or those which are between a 3: 12 pitch and a 6: 12 pitch; and one for steep roofs, or those with greater than a .6:12 pitch. He stated that the DRB recommended that the height for flat roofs remain at 24 feet. that the maximum height for medium-pitched roofs be set at 28 feet and for steep-pitched roofs it be set at 32 feet for urban-density residential districts. He stated that this revision in height restrictions recognizes the differences in mass and impact between flat-roofed and steep pitch- roofed buildings. He then indicated that for buildings with more than one roof form, each form will be subjected to its appropriate height restriction. The Planning Director stated that with these revisions, the steep pitch roofs can be two feet higher than proposed in the Planning Board's recommendation; and that additional height can accommodate the newer styles as well as the energy trusses now being used. He noted that in many of the newer homes, nine- and ten-foot ceilings are being utilized in addition to the steeper pitched roofs. . Planning Director Epple stated that the height restrictions for medium- and steep-pitched roofs are set two feet higher for residences in the A-S and R-S zoning districts, recognizing the larger lots and 25-foot setback requirements in those districts. The Planning Director stated that the DRB also recommended that the method of measuring be changed slightly. He expressed that measurements will essentially be from the lowest point of the ground to the peak of the roof. He noted that if the lot slopes, additional height will be allowed in the ratio of 1 to 1, to a maximum of six feet. He concluded that both the Planning Staff and the Southwest Montana Building Industry Association feel this is a simplistic solution that provides acceptable results. Commissioner Knapp stated she is still concerned about ensuring adequate light and air . to the neighbors and asked if the proposed changes address that issue. The Planning Director responded that this proposed revision will address the issue better than the current code provisions do. Planning Director Epple reviewed the remainder of his memo of December 29. He stated that staff would recommend that most of the revisions remain as recommended by the Planning Board in its resolution. He suggested, however, that Section 18.52.050 be amended to refer to 01-04-93 ----.. -. . ....-.. ------------- . , . ' - 3 - "applicant-requested deviations", thus allowing the possibility for deviations to be recommended by the Design Review Board to remain. Commissioner Frost asked about the proposal to amend the code to require that school districts, county and state lands be developed in accordance with the code. . The Director responded that the issue of development of public lands is specifically addressed in the State statutes. He noted there is a provision that a public hearing must be held before the Board of Adjustment; however, that provision further stipulates that the Board may not deny or condition the project. He stated that the school district, county and state have tried to address any concerns raised during such hearings, as a gesture of good faith. Commissioner Frost asked about the issue of allowing apartments in garages and carriage houses in the R-3a zoning district, which was one of the original intents of the new zone code. The Planning Director stated that while he feels that would be a good idea, it is not an issue that was addressed in this batch of amendments. He suggested that it could be considered at a future date, and cautioned that one of the major concerns is that this revision could result in a lot of second homes being located in back yards throughout the community. . Commissioner Frost asked about revising the scope of the Design Review Board to include reference to "site design" instead of "site". The Planning Director explained a preference for the current language, noting that it provides the latitude that the DRB needs while eliminating the potential for confusion. Mr. Dan Kamp, Southwest Montana Building Industry Association, stated appreciation for the opportunity to work with Planning staff and the Design Review Board to develop a proposal that seems to be acceptable to everyone. He noted the DRB's helpfulness, while ensuring that broader community concerns were considered and adequately addressed. Mr. Kamp stated that members of the industry are satisfied with the proposed revision, feeling that it provides a workable situation. He suggested, however, that the projects completed . under this new code provision be reviewed after a year to determine if it is as workable as it appears on the surface. He noted that it may be necessary to slightly revise the provisions following that review. Mr. Jim Syth, 2115 Baxter Drive, stated the primary purpose of the new zone code was to simplify the process and make it more easy to understand. He stated that he feels this revision is a good middle-of-the-road approach that will generate desirable results. He then indicated that 01-04-93 ---- - - -- - --- --- ------------ --- -------- - I ' . - 4 - he has been overwhelmed by the Commission's willingness to allow the SWMBIA to be a part of the process and work with the staff and the Design Review Board to develop a solution. He recognized that there are "always exceptions to the rule"; however, he feels that the appropriate adjustments can be made with the tools provided in the code. . City Manager Wysocki entered into the record a letter from Jerry DeMarco. dated December 29, to the City Commission. No one was present to speak in opposition to the proposed zone code amendments. It was moved by Commissioner Stiff, seconded by Commissioner Vincent, that the public hearing be closed. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Stiff, Commissioner Vincent, Commissioner Knapp, Commissioner Frost and Mayor Swanson; those voting No, none. Mayor Swanson closed the public hearing. It was moved by Commissioner Vincent, seconded by Commissioner Knapp, that the customary one-week waiting period for land use decisions be waived. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vincent, Commissioner Knapp, ~Commissioner Frost, Commissioner Stiff and Mayor Swanson; those voting No, none. .., Commissioner Frost stated that when the new zone code was first adopted, there were many grumblings that it was "written in stone" and would be extremely difficult to change. He noted, however, that in reality it has been changing since it was adopted; and the document has become better with those changes. He then thanked those who worked on this batch of amendments and their willingness to become involved in the process. Mayor Swanson stated his appreciation to Planning Director Epple for the work he has done. He also thanked the Builders and the Design Review Board for their efforts in addressing the issue of building height, which has resulted in what he feels is a solution that is acceptable to all groups. . It was moved by Commissioner Knapp. seconded by Commissioner Frost. that the Commission approve the proposed revisions to the zoning ordinance initiated by the City Commission and the City-County Planning Board, as contained in Resolution No. Z-92140 adopted by the Planning Board, and as revised by the memos prepared by Planning Director Epple dated December 7 and December 29. The motion carried by the following Aye and No vote: those 01-04-93 --. -----. ~~' --.. . ' - 5 - voting Aye being Commissioner Knapp, Commissioner Frost, Commissioner Stiff, Commissioner Vincent and Mayor Swanson; those voting No, none. City Attorney Luwe stated that staff will bring back an ordinance next week, so the Commission can begin the process of officially adopting these amendments. . Break - 4:10 to 4:18 p.m. Mayor Swanson declared a break from 4:10 p.m. to 4:18 p.m., in accordance with Commission policy established at their regular meeting of March 14, 1983. Discussion - Drocess for evaluation of City Manager Mayor Swanson stated the importance of the Commission evaluating the City Manager later in this meeting, commenting it has been postponed long enough. He reviewed the dictionary definition of "privacy" as "not open to or controlled by the public", stating it is important to remain cognizant of that definition while considering the evaluation process and the possibility of issuing a summary. ~ The Mayor read excerpts from the minutes of the meeting of July 6, at which .., Commissioner Vincent objected to closure of the meeting and subsequently left. He also distributed highlighted excerpts of those minutes to the Commissioners. He emphasized the right to privacy which both of the Commission's employees have available to them under the Montana State Constitution and the State statute. The Mayor expressed extreme concern that, prior to his leaving, Commissioner Vincent violated those rights to privacy by publicly submitting his statement that he felt both employees were doing "an outstanding job" rather than respecting their requests that evaluations be conducted in closed session. He indicated that those public evaluations have caused both of the Commission's employees "undue stress and anxiety" and that such actions are demoralizing to them. He further noted the oddity of having the media indicate support for a . Commissioner's position, as reflected in the July 6 minutes, particularly on this type of issue. Mayor Swanson reviewed the minutes from the meeting of December 14, at which time Commissioner Vincent once again indicated his intent to leave if the session were closed, after forwarding his public evaluation that the City Manager is doing an "excellent job". He stated that these public evaluations must stop, since they trample the rights of the employees and place the Commission in serious jeopardy with the State Constitution and the law. 01-04-93 ---.....---.-. - 6 - Mayor Swanson registered his grave concern that open evaluation of the Commission's employees could seriously weaken the commission/manager form of government to the point that the City could not attract or keep a manager of high quality for any length of time. He then questioned whether it might be Commissioner Vincent's intent to weaken this government to the .point that the structure might be changed. At Mayor Swanson's request, City Attorney Luwe reviewed his memo, dated December 28, 1992. He stated that this memo was written in response to Commissioner Vincent's original evaluation proposal, submitted prior to his meeting with Commissioner Knapp. He stated that for the process to work, the City Manager must waive his right to privacy. He was concerned that even with that waiver, some of the written comments may contain information about other employees of the City who had not waived their rights to privacy. City Attorney Luwe went on to say that in the case The Missoulian versus the Board of Regents, the Montana Supreme Court recognized the privacy issue not only for the President but for his employees and citizens of the community as well. The Attorney then cautioned that any written information to be released must be carefully reviewed to ensure that all privacy issues are . considered. He also noted that any written evaluations must be released by the City Manager each time. The City Attorney stated that review of the December 14 minutes reflected two issues that must be addressed: (1) whether Commissioner Vincent has a duty to participate in the evaluation process, and (2) if Commissioner Vincent absences himself from the evaluation, does it constitute an unexcused absence? He stated another issue to be addressed is whether the City Manager's employment agreement requires evaluation by all five Commissioners. The City Attorney informed the Commission that a third issue not previously raised is whether the presiding officer is required to close the meeting if an individual chooses not to waive his rights of privacy. He suggested that this issue should be resolved before January 1994, when Commissioner Vincent .is seated as Mayor, particularly in light of his philosophical statements. He then indicated his willingness to address the issue of the employment agreement language, since that is a local issue; however, he suggested that the issues of duty and whether The Missoulian case compels the presiding officer to close the meeting be forwarded to the Attorney General's office for an opinion. Responding to Mayor Swanson, the City Attorney indicated it might be possible to include some different forms of summaries for the Attorney General's review and possible comment. He 01-04-93 -.--......- __.__.m__ .... --- - _______.___.._....u.... - . ' - 7 - cautioned, however, that the Attorney General typically does not become involved in what appears to be a very specific local issue. Commissioner Stiff stated that Commissioner Vincent received a summary of the evaluations which the other four Commissioners completed. He questioned if the evaluation .process is being flawed because it is not being carried out by all five members of the Commission, particularly in light of the City Manager's employment agreement. He stated that he was a part of the negotiating team when City Manager Wysocki was hired and his initial employment agreement developed. He noted that at that time, there was no thought that any less than the full Commission would participate in the evaluation process. Comissioner Vincent stated he feels that City Attorney Luwe did a good job in preparing his memo; and he feels that all of the questions raised should be addressed. He stated that he fully realizes that if the City Manager says nothing will be released, that is the end of the discussion. He informed the Commission that his actions don't violate the City Manager's right to privacy. He noted that if he can be convinced that his actions violate the Montana State Constitution or the State statutes in any way, he will reconsider those actions. . Commissioner Vincent contended that he has not violated the City Manager's right to privacy by any of the comments he has made in open meeting, stating that he has made the same comments in open meeting as he has made to people on the street. Commissioner Knapp asked if the Commission has any ability to deny its employees the ability to ask for their rights to privacy; the City Attorney responded they cannot be denied; and if the presiding officer determines that the merits of public disclosure outweigh an employee's right to privacy, the employee must then decide if he wishes to participate in the evaluation or pursue some type of court action. At Mayor Swanson's request, Commissioner Knapp briefly highlighted her meeting with Commissioner Vincent on Wednesday afternoon. She stated that after an hour-long meeting, she . felt they reached nothing conclusive other than the fact that the Commission cannot deny the City Manager his right to privacy and that Commissioner Vincent must act according to his personal philosophies. She then stated she feels that the Commission has spent a tremendous amount of time, far in excess of what is necessary or proper, on this issue. Commissioner Vincent stated that Commissioner Knapp has summarized the results of their Wednesday meeting very well. He noted that they also agreed to work together on reviewing 01-04-93 ------.--.-,... - __n______. .. __ . ,.___.__._.___ ---.- ..._.~_._.._-_....- -- , , , ' - 8 - the evaluation instrument, possibly considering a goal type of evaluation format rather than the current format. Mayor Swanson asked for Commission direction on the issues raised in the City Attorney's memo. The Commissioners concurred that an Attorney General's opinion should be sought on -- whether a Commissioner has the duty to partipicate in the evaluation of the City Manager under ~ law and, if so, whether failure to participate constitutes an unexcused absence; and whether the Montana Supreme Court decision in The Missoulian versus the Board of Regents compels the Mayor to close the meeting if the employee does not waive his right to privacy. The Commission concurred that the City Attorney should address the issue of whether the City Manager's employment agreement requires that all five Commissioners participate in the evaluation process. Commissioner Stiff asked if the Commission retains the ability to override the Mayor if he does not close the meeting to preserve the employee's right to privacy. City Attorney Luwe indicated that the Attorney General's response on the Supreme Court decision should address that issue. Mayor Swanson expressed his great discomfort with issuing a summary without first ~ having a legal opinion. - - -..-.. Commissioner Vincent stated that he has researched what the City of Great Falls and the City of Billings do in releasing information on the City Manager's evaluation. He noted that in Great Falls, a blank evaluation form is released to the press; the evaluation is conducted in executive session; and the aggregate composite score of the evaluation is released to the press through the designated spokesperson from the Commission. He stated that in Billings, a blank evaluation form is released to the press; the evaluation is conducted in executive session; and a word evaluation is released to the public, i.e., "falls between outstanding and very good". He then forwarded a suggestion that this type of process and summary report be considered in lieu of the proposal he had forwarded on December 21. He stated that if the Commision and the City Manager are willing to consider this format, he is willing to participate in the evaluation process. . Commissioner Stiff stated that the format just outlined by Commissioner Vincent is essentially the format that past Commissions had used, without the release of a numeric score. He then suggested that to reimplement that process would probably address Commissioner Vincent's concern. He also noted the importance of Commissioner Vincent participating in the process, so that the full Commission's input is received and considered. 01-04-93 . . , ' - 9 - Commissioner Vincent stated his interest in participating in the evaluation process. He noted that his second proposal represents a further compromise on his part, to reach a solution that can be acceptable to all parties concerned. He then stated that if the City Manager indicates a willingness to release an aggregate composite statement of his evaluation, he will agree to .particiPate in this executive session. He informed the Commission that if the research requested reflects that more information can be released to the public, he will push for a more open process at some time in the future. Commissioner Stiff emphasized the fact that he does not wish to release a numeric score, but definitely prefers a verbal description. Commissioner Knapp stated that, no matter what the Cities of Billings and Great Falls do, , the Bozeman City Commission must respect their employees' rights to privacy. She noted that in this process, the Commissioners have no rights to assert. She explained that she is not comfortable with asking an employee to accept the release of a summary of the evaluation, since that places the employee in an untenable position. She then stated she feels it is important that the Commission allow the employees to come forward with a request for release of information, eto ensure the integrity of the process. Commissioner Frost stated his whole-hearted support for Commissioner Knapp's position and comments. He noted that if the Commission endorses a plan and submits it to the City Manager and Clerk of the Commission, it places undue pressure on them. He then read an excerpt from the Supreme Court decision, in which it recognizes the importance of privacy, even though public disclosure may provide for some "sensational news copy". Mayor Swanson questioned why, if this issue is so important, the Commission didn't hear anything from Commissioner Vincent between the time he walked out in July and the time he threatened to walk out in December, before the evaluation was delayed. Commissioner Vincent responded that he did not feel his philosophical viewpoint would . create such a sticking point for the Commissioners. The Commissioners continued their discussion, reiterating many of the points and issues which they had already raised and which are reflected in these minutes. During the discussion, Mayor Swanson, Commissioner Frost and Commissioner Knapp all reiterated their extreme discomfort with requesting that City Manager Wysocki authorize a written summary of the current evaluation. Commissioner Vincent reiterated his position that a written summary is necessary if 01-04-93 --..- . , - 10 - he is to participate; and Commissioner Stiff reiterated his position that re-implementation of a previous practice would resolve the issue. Ordinance No. 1358 - vacatina and abandoninG that portion of Nikles Drive aDDroximately 180.20 feet lona and lying east of the Gilkerson Drive right-ot-wav. located in the McChesnev Industrial .park Subdivision City Manager Wysocki presented Ordinance No. 1358, as approved by the City Attorney, entitled: ORDINANCE NO. 1358 AN ORDINANCE Of THE CITY COMMISSION Of THE CITY Of BOZEMAN, MONTANA, VACATING AND ABANDONING THAT PORTION OF NIKLES DRIVE APPROXIMATELY 180.20 fEET LONG AND LYING EAST Of THE GILKERSON DRIVE RIGHT-Of-WAY, LOCATED IN THE McCHESNEY INDUSTRIAL PARK SUBDIVISION. The City Manager reminded the Commission that they had provisionally adopted the ordinance at their meeting of December 21 and recommended that it be finally adopted at this time. It was moved by Commissioner Frost, seconded by Commissioner Stiff, that the Commission finally adopt Ordinance No. 1358, vacating and abandoning a portion of Nikles Drive .IYing east of the Gilkerson Drive right-of-way in the McChesney Industrial Park Subdivision. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Frost, Commissioner Stiff, Commissioner Vincent, Commissioner Knapp and Mayor Swanson; those voting No, none. Claims City Manager Wysocki stated that claims are the only Consent Item. He recommended that the Commission approve the claims as listed and order the same be paid. It was moved by Commissioner Stiff, seconded by Commissioner Vincent, that the Commission approve the claims as listed, and order the same be paid. The motion carried by the .fOIlOWing Aye and No vote: those voting Aye being Commissioner Stiff, Commissioner Vincent, Commissioner Knapp, Commissioner Frost and Mayor Swanson; those voting No, none. Discussion - fYI Items City Manager Wysocki presented to the Commission the following "For Your Information" items. 01-04-93 ---- ._---- ---.... ,..--..- . , - 11 - (1 ) Draft copies of the by-laws for the Beautification Advisory Board and an ordinance creating the board, as prepared by Assistant City Manager Brey. Commissioner Knapp indicated that she has reviewed these documents and forwarded comments to the Assistant City Manager. She requested that these items be placed on next . week's agenda for action, so the board can be created and appointments made as quickly as possible. (2) A "project program" sheet, as requested by the Commission and prepared by Administrative Services Director Gamradt, listing the projected cash flow from future assessments and notes receivable in the Valley Unit Subdivision and proposed community projects which could be funded with those monies. The City Manager requested that this item be placed on next week's agenda for discussion, so that a proposed program can be developed upon which public input may be received as quickly as possible; and some projects could be undertaken this year if the opportunity arose. (3) Memo from Clerk of the Commission Sullivan, dated December 31, requesting that the date for the joint meeting with the County Commission regarding transportation .enhancement monies be changed to 3:30 p.m. on Tuesday, January 19, at the County Courthouse. The Commissioners concurred in the requested change. (4) Letter from Kate Vidales, 324 West Lamme Street, dated December 8, regarding the intersection of Fifth and Lamme. (5) Memo from the Chamber of Commerce Governmental Affairs Committee, dated December 28, announcing that January 12 is legislative day in Helena. (6) Copy of a letter from Don McLaughlin, architect for the Law and Justice Center project, to Taylor Construction, dated December 29, regarding possible modifications to that project. (7) Copies of Certified Arborists certificates awarded to Ryan Stover and Tom Bay, .emPloyees of the City. (8) Agenda for the Development Review Committee meeting scheduled for 10:00 a.m. on Tuesday, January 5, 1993. (9) Agenda for the Design Review Board meeting scheduled for 4:00 p.m. on Tuesday, January 5, 1993. (10) Agendas for the County Commission meetings of December 29, 1992 and 01-04-93 ------.... __n______._. __.__._____ _ ...u... _ ___".._____ _ n. ___..__ _ ____., . . , - 12 - January 5, 1993, along with daily minutes for the weeks of December 14 and December 21, 1992. (11 ) The City Manager submitted his weekly report, as follows. (1) Noted that snowplows have been busy the past few days. He indicated that the City and the State will work together tonight and tomorrow night to plow snow into furrows and then remove it from . Mendenhall, Babcock and Main Streets. (2) Noted that staff worked diligently this week to complete the spread sheet submitted earlier under this agenda item. (3) Announced that Local Government Day has been scheduled for Friday, January 22. He indicated that the Bozeman delegation will leave town around 8:00 a.m. to spend the day with legislators. He noted that in the evening, delegations from the Cities of Bozeman, Kalispell and Missoula and legislators from those areas will meet for dinner and to discuss items of mutual concern. (4) Noted that he and County Commissioner Jane Jelinski will address Leadership Bozeman on January 21, which is a day-long session set aside for local government. (5) Noted that City crews are spending time in Bozeman Creek to keep the ice cleared. He indicated the potential of a budget amendment to fund drilling of more wells along the creek, since introducing warmer water into the creek can reduce the amount of ice chopping that is required. (6) Stated that there are several requests for .qUalifications to update the water and sewer studies that were previously completed for the City as well as for the development of a household hazardous wastes disposal program. (7) Stated that the City has applied for another year of funding through the Department of Justice grant program for the local DARE program. (12) Commissioner Frost submitted the following. (1) Noted that he has a registration form for the Chamber of Commerce lip sync contest, for any interested Commissioners. (2) Noted an article on the front page of the Bozeman Daily Chronicle a couple of weeks ago concerning the increased number of tourists expected in Bozeman this year. He noted that the article appears to be upbeat; however, on page 12 of that same newspaper is an article on how tourism has negatively impacted Santa Fe, New Mexico. He suggested that the Commission begin to think .about this potential problem and possibly consider different methods of ensuring adequate affordable housing is provided. Mayor Swanson stated that he had read that same article in a different newspaper, distributing copies of it to the Commission. He encouraged the Planning staff to review the article, looking at the various alternatives they have considered to ensure adequate affordable housing is provided in conjunction with the new expensive housing. 01-04-93 ------- ------ . , . ' - 13 - (13) Commissioner Knapp indicated that she will be unable to attend Local Government Day in Helena. She noted, however, that she will be in Helena twice this month and will check to see if any messages or written materials need to be transmitted to the legislators while she is there. . (14) Commissioner Vincent read an excerptfrom a recentarticle aboutthe new master plan for Seattle, noting that the plan encourages an old-fashioned community with well-defined neighborhoods and discourages suburban sprawl. He then stated his intent to acquire a copy of that master plan, to see if there are some elements of the plan that could be used by or adapted for Bozeman. ( 15) City Attorney Luwe stated that he spent the past two weeks addressing various litigation issues, including filing of a motion for dismissal in the Nichols case. (16) Mayor Swanson distributed information sheets on the Governor's proposed budget cuts. He indicated that he has a booklet which provides a more comprehensive review of the proposed budget revisions, for review by any interested Commissioners. Commissioner Vincent stated that during his 16 years in the House of Representatives, . he participated in the budgeting process for eight budgets. He noted that the final budget passed by the Legislature varied from the Governor's total proposed budget by an average of .2 percent, although the figures within the budget may have varied quite dramatically. ( 17) Mayor Swanson distributed copies of a letter he wrote in support of the Gallatin Valley Land Trust's efforts to obtain a grant from the DuPont Corporation to study looping trail systems along the Story Mill Trail. Recess - 5:40 D.m. Mayor Swanson recessed the meeting at 5:40 p.m., to reconvene at 7:00 p.m. for the purpose of conducting the scheduled public hearings and completing the routine business items. .Reconvene -7:00 p.m. Mayor Swanson reconvened the meeting at 7:00 p.m. for the purpose of conducting the scheduled pUblic hearings and completing the routine business items. 01-04-93 ~ . . - 14- Public hearing - Commission Resolution No. 2898 - intent to create SID No. 656 for the DurDose of accomDlishinG the enGineerinG desiGn. construction. inspection and engineerina certification of a 10-inch water main extension to the Burrup Annexation This was the time and place set for the public hearing on Commission Resolution No. 2898, as approved by the City Attorney, entitled: . COMMISSION RESOLUTION NO. 2898 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONT ANA, DECLARING IT TO BE THE INTENTION OF THE CITY OF BOZEMAN TO CREATE SPECIAL IMPROVEMENT DISTRICT NO. 656 FOR THE PURPOSE OF ACCOMPLISHING THE ENGINEERING DESIGN, CONSTRUCTION, INSPECTION AND ENGINEERING CERTIFICATION OF A 10-INCH WATER MAIN AND ALL NECESSARY APPURTENANCES TO SERVE ALL LOTS AND TRACTS LOCATED IN THE BURRUP ANNEXATION TO THE CITY OF BOZEMAN, MONTANA. City Manager Wysocki stated that, included in the packets, were several letters regarding this proposed special improvement district; and another was placed on the Commissioners' desks at the beginning of the meeting. Mayor Swanson opened the public hearing. City Engineer Craig Brawner presented the staff report. He stated that the City received a petition signed by approximately 59 percent of the property owners within the proposed special . improvement district, requesting that a district be created for the purposes of installing a 10-inch water main to the Burrup Annexation, to provide fire protection and domestic water service to that area. He informed the Commission that the Burrup Annexation includes 78 acres, divided into 14 tracts and lots, with ten separate ownerships involved. The City Engineer stated that a representative for one of the property owners, owning approximately 10 percent of the property, has indicated support for the proposed special improvement district but has not signed the petition or submitted any written support. He further noted that one property owner has indicated opposition to the proposed district; and no comments have been received from a percentage of the property owners. Responding to Commissioner Frost, City Engineer Brawner stated that the Burrup .Annexation is located east of the East Main Street interchange, and is the long, narrow parcel lying between the Interstate and Frontage Road. He then indicated that the water main currently ends on East Main Street at Haggerty Lane and must be extended under the interstate to reach the subject property. Ms. Diane Stewart, representing Anthony Wayne Corporation, stated that they recently 01-04-93 --.-- ,,- - - -- ---..- ------...... . . - 15 - purchased the six-acre parcel just east of Dick Walter Motors to construct a building for ILX Lightwave. She noted there is very little vacant M-1 zoned land in the community which has water and sewer services and which can readily be developed. She went on to say that the Burrup Annexation was annexed in 1979; and sewer services have been extended to the area. She . encouraged the Commission to approve this special improvement district so that water services can be provided. Mr. Don Thiesen, owner of the Sunrise Campground, stated support for the proposed SID. He noted that federal regulations on water quality are becoming more stringent, requiring more testing at this time. He expressed concern that those regulations will become even more stringent, resulting in a need for him to either provide his own water treatment system or tie into the City water system. Mr. Keith Belden, Morrison-Maierle/CSSA, indicated that he has done some preliminary design work and cost estimates for the project. He stated a willingness to respond to any technical questions that the Commission may have about the requested district. Mrs. Dixie Swenson, Executive Director of the Gallatin Development Corporation, stated . her concern about the lack of vacant M-1 zoned properties with City services available for development. She then the Commission to approve creation of the district, noting that it would alleviate some of those problems which economic development projects currently encounter. Mr. Neal Ganser, 32404 Frontage Road, stated he is apparently the minority protesting the creation of this special improvement district. He noted that he and his wife purchased their current home and business location in September 1978, before the area was annexed. He stated that he has two wells which net 90 gallons per minute; and he does not need City water to meet his personal or business needs. He stated that he has five children, three of whom will be entering college within the next four years. He informed the Commission that he has avoided the costs of constructing an addition to their three-bedroom home to accommodate his large family; however, . creation of this SID would generate the same amount of debt to him personally that he has chosen to avoid in the past. Mr. Ganser stated that when his property was included in the Burrup Annexation, he was assured that he would not be subjected to any SID except a sewer SID to which he had agreed. He noted that his eight-acre parcel would incur approximately $86,000 in principal and interest over a twenty-year period for retirement of the debt for this SID, which translates to approximately $360 01-04-93 . , , - 16 - per month. He stated that he is an independent businessman who has developed his business without subsidy from city, county, state or federal programs; and he questions the need for him to incur costs to enable his neighbors to construct a building for a business which has already received substantial federal sUbsidy through the CDBG program. He further commented that the . City has a vested interest in ensuring the success of this business since those CDBG monies are repaid to the City. Mr. Ganser stated he does not wish to stop development in the area or the installation of a water main to support that development; however, he reiterated his position that he does not feel he should be required to subsidize the effort. To that end, he forwarded some suggested alternatives, to avoid the problems that might be encountered if the City proceeds with creation of the special improvement district as proposed. He stated that if the City does create the district as currently proposed, he will, in all likelihood, proceed with some type of legal action. He suggested that, to avoid that process, the City could revise the boundaries to exclude all of his property; or, in the alternative, he would be willing to allow the approximately 1 Y2 acres of M-1 zoned property to be within the district along with a provision that would allow him or a successor . property owner to tie onto the water main for the remainder of the 8-acre parcel through a payback agreement. He concluded that with those stipulations and changes, the process could essentially move forward as proposed without creating any undue financial strain on his property. Mr. Jim Screnar, attorney representing Mr. Ganser, stated that he also represented Mr. Ganser during his protest of the annexation in 1978 and 1979. He stated that he pulled his files from the archives for that issue an reviewed his notes, particularly for those taken during the Commission meeting held on January 3, 1979. He reviewed the minutes for the meeting, which reflect that Mr. Ganser would withdraw his protest provided that there would be no SID's for the next 2 Y2 to 3 Y2 years and that future SID's would be paid for only by those subdivisions within the Burrup Annexation that wanted those services. The minutes further reflect that, with assurances .that future subdivision developments would not involve SID's for utilities or streets that would impact the entire annexation, he agreed that Mr. Ganser would probably withdraw his protest to the annexation. Mr. Screnar stated that a review of the original protest file for the Burrup Annexation, in his protest, he was unwilling to allow annexation to go forward unless he received assurances that no other SID's would be placed on Mr. Ganser's property, and with that assurance, he withdrew 01-04-93 . . .-.. .--. - -.--..........-...... - 17 - the protest. City Manager Wysocki reminded the Commission that the minutes from the meetings of December 6, 1978 and January 3, 1979 are the official record of the City, distributing copies of those minutes of the Commissioners for their review. He also distributed copies of the City .Manager's notes to the Commission for those items, noting there is no different indication in those notes than what appears in the minutes. He noted that Mr. Screnar did, indeed, represent Mr. Ganser and his 3 %-acre parcel at those meetings. The City Manager reminded the Commission that under the current zoning designation, the Burrup Annexation can be developed with light manufacturing and business park type activities; and City utilities should be sized to accommodate the fire protection and domestic services for those potential activities. He further noted that Mr. and Mrs. Cowdrey were required to sign a waiver of right to protest the creation of special improvement districts as a condition of approval for developing their site. He informed the Commission that the issue of ensuring adequate water for fire protection and domestic use was discussed at length during review of the major site plan for Dick Walter Motors. He suggested that the Commission would make a mistake if it did not .create the SID when 70 percent of the property owners have indicated their support, possibly even placing the City in a liablous position. At Mayor Swanson's request, Mr. Screnar reviewed his position, reading the notes that he wrote following the January 3, 1979 Commission meeting. He noted that he indicated that Mr. Ganser would not object to being annexed and paying the City taxes or participating in an SID for sewer services only. However, he did object to being required to participate in any other SID's for capital improvements, such as water and streets. He noted that, following a "large" discussion regarding any other capital improvements and assurances by the City Manager and the City Commission that no SID's would flow for the next 2% to 3 years, and that only subdivision developments would be required to participate in water, sewer and street SID's, he indicated that . Mr. Ganser would probably agree to annexation. He stated that he did not see the minutes for that meeting until Mr. Ganser obtained a copy just before Christmas. Responding to Commissioner Frost, Mr. Ganser stated that the M-1 zoning line splits approximately 1 Y2 acres along the west side of his lot from the remainder. He reiterated his willingness to allow that part of the lot to be within the district boundaries, since there is some potential for additional development of that portion of the site even though he has no such plans 01-04-93 . - 18 - at this time. Responding to Commissioner Stiff, Mr. Ganser stated the original parcel contained 3.86 acres, and he has since purchased 4.2 acres, for a total of 8 acres. He noted that the additional property is currently vacant; and he purchased it to avoid development between his home and the ~interstate. ~ Responding to Commissioner Vincent, Mr. Ganser stated that creation of this SID as proposed would result in assessments totalling approximately $4,500 per year for his property. He then indicated that he would probably pursue legal action against the City because of what he feels is an undue burden. He reiterated his interest in not taking this step, but in cooperating in the establishment of a district that would allow those interested in obtaining water service to continue the process without negatively impacting him. He went on to say that this would also serve to meet the original intent stated in 1978 and 1979, with each subdivision development bearing its own costs. He concluded that he had anticipated this type of problem before the area was annexed; and that is why he approached the annexation process the way he did. Responding to Commissioner Knapp, City Engineer Brawner stated there are fourteen .parcels, varying in size from just under % acre to 13.8 acres in size, in ten ownerships. Five of those parcels have been developed, including three residences and four business developments. Mayor Swanson asked Mr. Ganser if he feels that additional four acres he purchased are covered under the 1979 agreement for annexation. Mr. Ganser responded he had not really considered that issue. He reiterated his position that he had purchased the vacant property to enhance his residence, which is the portion he wishes to have eliminated from this proposed SID. Responding to Mayor Swanson, Mr. Screnar stated that the actions surrounding the Burrup Annexation pertain to only 3.5 acres of Mr. Ganser's property. He noted that he cannot respond to whether the language which protects that portion of Mr. Ganser's property would extend to the 4.5 acres acquired later. . Mr. Ganser stated that if subdivision developments were required to pay their own way. the newer portion of his property would be exempt from SID costs until a development proposal was forwarded. Responding to Commissioner Frost, the City Engineer indicated that the extension of the water main is to occur in the Frontage Road right-of-way. He indicated that there is one parcel in 01-04-93 . . - 19 - the proposed district lying east of Mr. Ganser's. He noted that service lines must be run from the water main to each individual parcel under a separate process. Further responding to Commissioner Frost, the City Engineer estimated that assessments under the proposed district will be $5,000 per acre; and deleting 6% acres would increase the per- . acre cost. City Manager Wysocki noted that a number of options are available, which the Commission may wish to consider after the public hearing has been closed. He forwarded some of those options, cautioning that if the Commission decides to adjust the boundary, the process must be started over. He then suggested an alternative might be to leave the boundaries, with the understanding that the City will pay the assessments on 6% acres of Mr. Ganser's property until such time as someone wishes to develop that parcel. He noted that at that time, the property owner could repay the assessment amounts to the City through a payback agreement. Responding to Commissioner Stiff, the City Manager stated that, based on square footages, Mr. Ganser's protest represents 10 percent of the property within the district. He noted that under State statute, it takes over 50 percent protest to kill a proposed special improvement .district. Responding to Commissioner Knapp, Mr. Ganser stated that the parcel to the east of his is currently undeveloped; however, the property owners are interested in this SID so they can develop the property. Responding to Mayor Swanson, City Attorney Luwe stated each special improvement district is unique. He suggested that this one may be different because Mr. Ganser has indicated he has a past agreement with the City and its former administration regarding the creation of special improvement districts. He then noted that property owners may protest the creation of the district, the extent of the district, or both; and Mr. Ganser appears to be protesting both. He stated that after the public hearing is closed, the Commission must make a determination on whether that .protest is sufficient to kill the district and, if not, direct staff to prepare a resolution of creation. Responding to the Mayor, the Commissioners expressed an interest in keeping this public hearing open. Commissioner Frost indicated that his concern is the understanding which Mr. Ganser has about the annexation of his property. He expressed an interest in possibly including only the M-1 zone portion of the property in the district or some variation on that idea. He also stated interest 01-04-93 -~- --.. . . - 20- in a payback agreement in conjunction with that option, with the cost of tying into the water main being the same as the total assessments would have been under this special improvement district. Commissioner Stiff stated he feels the project as submitted is a viable one. He stated an interest in having City Attorney Luwe review the issues carefully, particularly the comments .forwarded by Mr. Ganser and Mr. Screnar. He feels that in the long run, it would be in the best interests of the community and of Mr. Ganser to keep the whole project in place if at all possible. Commissioner Vincent stated an interest in having all possible viable options forwarded for Commission consideration. Commissioner Knapp asked for a sketch map showing which parcels are developed and which are undeveloped, where the water main extension would be located and details about the cost. She also asked for a tabulation of the costs of running the line under the interstate as well as any other unusual costs that might be incurred in this project. Mayor Swanson stated he is not interested in starting the process over again. He expressed an interest in considering the various options listed by the City Manager as well as any others than may appear viable, including the possibility of a payback for future hook-ups. . Mayor Swanson continued the public hearing to 3:30 p.m. on Monday, January 11, 1993. Continued DubUc hearina - zone maD chanae - RS to B-2 - Wal-Mart Stores. Inc. for Georae Westlake and Kav Martinen - change zonina on 14.2 acres located in the NEY-. of Section 1. T2S. R5E. MPM (south of 1-90. east of North 7th Avenue and north of West Oak Street) This was the time and place set for the continued public hearing on the zone map change from RS, Residential Suburban, to B-2, Community Business, requested by Wal-Mart Stores, Inc., for George Westlake and Kay Martinen under Application No. Z-92134, on 14.2 acres located in the northeast one-quarter of Section 1, Township 2 South, Range 5 East, Montana Principal Meridian. The subject parcel is more commonly located south of Interstate 90, east of North 7th Avenue and north of West Oak Street. City Manager Wysocki submitted to the Commission a memo from Associate Planner . Arkell, dated December 23, forwarding the applicant's request that this public hearing be continued to January 19, so it can be considered the same evening as the annexation request. He then recommended that the Commission acknowledge the request and continue the hearing as desired. Mayor Swanson reopened and continued the public hearing to 7:00 p.m. on Tuesday, January 19, 1993. 01-04-93 --.- _._-~_.. -.... . .-.....--.--.--- .-... . , - 21 - Public hearina - variances to Sections 18.10.030 and 18.50.110(A) . Golf Course Partners. Inc. - to allow a 2.68-acre tract to be divided from the remainder of the 287-acre Darcel described as a portion of cas No. 1356. located in the NE% and SE% of Section 31. T1S. R6E. MPM (1265 Story Mill Road) (C-922Q) This was the time and place set for the public hearing on variances to Section 18.10.030 and 18.50.110(A) of the zoning ordinance, as requested by Golf Course Partners, Inc., under .PPlication No. C-9220, to allow the creation of a 2.68-acre tract which does not meet the minimum lot area or width in the A-S, Agriculture Suburban, zoning district and does not front on a public street. The subject parcel is located in Certificate of Survey No. 1356, and is more commonly known as 1265 Story Mill Road. City Manager Wysocki submitted to the Commission a memo from Associate Planner Debbie Arkell, dated January 4, 1993, indicating that the applicant withdrew this application this afternoon. He recommended that the Commission open the hearing, acknowledge receipt of this memo, and close the hearing. Mayor Swanson opened the public hearing, entered Planner Arkell's memo of January 4 into the record, and closed the public hearing. Since the applicant had withdrawn the application, the Commission determined that no action was necessary. . Break - 8:03 to 8:06 p.m. Mayor Swanson declared a break from 8:03 p.m. to 8:06 p.m., in accordance with Commission policy established at their regular meeting of March 14, 1983. Discussion (continued) - Drocess for evaluation of City Manaaer Commissioner Stiff asked for further discussion on the process for evaluation of the City Manager, stating he feels that the issue remained unresolved at the end of the afternoon session. He then stated he feels that the Commissioners, City Manager and Clerk of the Commission should be able to develop a solution that is acceptable to all parties involved prior to tonight's evaluation .ession. City Manager Wysocki noted that under the previous process to which Commissioner Stiff has alluded, he never waived his rights to privacy; however, he never objected to the release of information, either. He then stated that if this type of process is to be implemented, he wishes to reserve the right to review any information for dissemination and approve it. He further noted the 01-04-93 - 22- importance of understanding that he reserves the right to make the determination for every evaluation; and he is not providing a blanket approval through any action at this time. The City Manager reminded the Commission that no one has yet directly asked him the basic question of whether he is willing to waive his right to privacy and allow a written summary to be published ..~ following his evaluation or not. . Commissioner Vincent stated that the City Manager has been quoted in the newspaper as saying he would not object to a written statement being issued after the evaluation is complete. Commissioner Knapp reiterated her position that she will not support requesting the City Manager and the Clerk to authorize release of a written statement. She stated that she is willing to consider the option if the employees request such a release of information. Commissioner Frost stated he has no problem with a written statement if approved by the employee. City Manager Wysocki stated the awkward position this situation has placed him in, given the Commissioners' positions. He indicated that he would be willing to allow a written statement for this evaluation; but he emphasized the fact that this determination must be made each time an . evaluation is conducted. He also stated he wants to review and approve the written statement before it is released. He cautioned the Commission that this is his .bottom line. position; not a position of negotiating for more openness in each subsequent evaluation session. He announced to the Commission that he is not interested in having any Commissioner issue a "minority report" in addition to the written summary, noting the media's tendency to contact individual Commissioners for additional information following a press release. Mayor Swanson questioned whether this discussion is centered more around the issue of power rather than the issue of right to privacy versus the public's right to know. He noted that the City Manager should not have to make a decision on whether to release a written statement on the evaluation process until after the process has been fully completed. He stated that, in that light, the Commission does not know before the executive session whether any information will be .. . released; and all Commissioners must approach the session with that in mind. Following additional discussion on the process, the Commissioners agreed to conduct the City ~anager's evaluation in executive session, with the expectation that at the end of the session, the City Manager will make a determination on whether he will allow a written statement to be 01-04-93 ----" - , , .. . - 23 - released. They further recognized that if the City Manager does not waive his right to privacy, no information will be released following the evaluation. Possible executive session - evaluation of City Manaaer 6 At 8:43 p.m., Mayor Swanson stated this is the time set for evaluation of the City "WI' Manager. He stated that, pursuant to Section 2-3-203(3), Montana Code Annotated, he, as presiding officer, has determined that the individual involved has not waived his right to privacy. City Manager Wysocki confirmed his desire to exercise his right to privacy. Mr. AI Knauber, reporter for the Bozeman Daily Chronicle, stated his opposition to the closure of the meeting. He indicated that open government should be utilized in every aspect of the Commission's work, even on issues which the law allows to be closed. Mayor Swanson called an executive session for the purpose of evaluating the City Manager and requested that all persons except the Commissioners, City Manager and Clerk leave the room. At 9:30 p.m., Mayor Swanson closed the executive session and reconvened the open ~meeting. .'W' Adjournment - 9:30 D.m. There being no further business to come before the Commission at this time, it was moved by Commissioner Vincent, seconded by Commissioner Knapp, that the meeting be adjourned. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Vincent, Commissioner Knapp, Commissioner Frost, Commissioner Stiff and Mayor Swanson; those voting No, none. .ATTEST: ~/~ ROBIN L. SULLIVAN Clerk of the Commission 01-04-93 -