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HomeMy WebLinkAboutCity Council Minutes 04.07.1998Minutes of the City Council of Laurel April 7, 1998 A regular meeting of the City Council of the City of Laurel, Montana, was held in the Council Chambers and called to order by Mayor Chuck Rodgers at 7:02 p.m., on April 7, 1998. COUNCIL MEMBERS PRESENT: Gary Temple Miles Walton Norman Orr Bud Johnson Dirk Kroll Ken Olson Gay Easton William Staudinger COUNCIL MEMBERS ABSENT: MINUTES: Motion by Alderman Kroll to approve the minutes of the regular meeting of March 17, 1998, as presented, seconded by Alderman Johnson. Motion carried. CONSENT ITEMS: a. Claims for the month of March. Correspondence Memo from MMIA Memo from Montana League of Cities & Towns Five letters of protest and one in favor of the re-zoning of the north school lot. Mayor Rodgers asked if there was any separation of consent items? There was none. Motion by Alderman Johnson to approve the consent items as presented, seconded by Alderman Orr. Motion carried. SCHEDULED MATTERS: a. Home Occupation - Todd McKeever, continued from March 17, 1998 council meeting. Todd McKeever, 804 West 4th Street, has applied to have a home embroidery machine business in his home. The embroidery business will be part time, he and his wife will continue to work their full-time jobs. He stated there will be no retail business, no inventory stocked, or traffic coming and going. They plan to keep the integrity of their home. Planning Board recommends approval. city/county planning jurisdiction.) (Outside city limits, but within the Motion by Alderman Johnson to grant approval to Todd McKeever for a home occupation, seconded by Alderman Staudinger. Motion carried. b. Public Hearing - Zone Change This being the time and place advertised, a public hearing was held regarding a zone change to community commercial, First Avenue Subdivision, S9, T2S, R24E, P.M.M., Yellowstone County Montana, more specifically Block 1, Lots 1-20 (old north school lot). Mayor Rodgets explained the ground rules for the public hearing. He stated the council's decision on the zone change will be on April 21, 1998 at the council meeting. Public hearing is opened. Cal Cumin, Laurel Planning Consultant, gave a presentation on the zone change. The zone change has gone through the Planning Board twice. The first time the Planning Board recommended denial. There was a technicality and it was sent back to the Planning Board. They held a second public hearing and have recommended approval of the zone change to the city council. Spot zoning is one issue that has been a concern. A zoning issue only becomes "spot zoning" when such zoning action is found to be illegal. A finding by a court of "spot zoning" usually requires all three issues that page 2 Council Minutes of April 7, 1998 were addressed in his report to the council be present, not just one, which is an important issue. The state and federal governments give local governments, such as Laurel, board powers regarding zoning and zoning administration. If the city council follows the established legal process for changing zoning districts within its jurisdiction, it would be extremely difficult for a court to overturn it. This is why the city attorney indicated he would have no trouble defending council approval of this application. Cal referred to the first submittal to the Planning Board which was denied verses the second submittal of Ricci's. The major difference between the two submittals is the revised site plan and accompaniments offered by the applicants (Riccis) to mitigate perceived negative impacts. These include the location of the building on the lot, rearranging of accesses, professional traffic analysis, landscaping improvements plan for the entire site, and written contract specifying planned improvements to the site, to be entered into with the City of Laurel. Cal went over the reason for the change of recommendation by the Planning Board (from denial to approval). The first submittal was a plain request by Riccis for community commercial zoning for a planned grocery store. The city could approve or deny it. The Planning Board and the city could not stipulate changes or requirements for the project that might mitigate perceived negative impacts or make the project more suitable. That is "contract zoning" which is illegal. The applicants could, however, modify their proposal and incorporate changes or enhancements to make their project more suitable to the public and mitigate possible negative impacts. The Riccis are now presenting a package that has been through the Planning Board and is now before the council. The council will review the specifics of the project. The package is not just for a zone change to community commercial, but for a designed site with a facility on it with improvements, access, pavement and parking. If it is approved, the Riccis will be locked into what they have proposed and any changes in access, building location, landscaping, etc. will require approval by the city council. This is an important aspect of this particular application and one that was not available in the original submittal. Laurel provides for public input by providing two public hearings, both advertised in the newspaper, before it makes decisions on a rezoning project. State law only requires one. There is a fear of "Grand Avenue Syndrome", the bleeding of more commercial uses up and down First Avenue. The city controls its zoning. It makes decisions based on recommendations from the Planning Board, as noted, after two public hearings. This has become such a sensitive issue, so Cal suggested that the council consider a moratorium on any zone changes or zone change applications for up to ayear as part of the commercial zoning codes, to allow the community breathing room if the Riccis application is approved. A moratorium will assure neighbors that additional commercial zoning is not eminent and provide for study of possibly more suitable zoning alternatives for the neighborhood. A moratorium can go into effect April 21, 1998 after a public hearing and can last up to one year. PROPONENTS: Vince Ricci, addressed the council requesting a zone change on the north school lot from public to community commercial. Vince and Debbie Ricci own and operate Ricci's Thriftway. They will show that the provisions for this project will be a community plan and the building of the store will help to support the promotion and development of this property. Their intent is to place an inefficient land use back on the tax rolls for revenue. They are not asking for any residential area to be rezoned, therefore, there will be no loss in residential zoning. They are not asking for a loss of homes to make additional commercial zoning but are asking for an unused public zone to be changed to a usable zone. Vince introduced Carl Pit, representing Associated Foods, Salt Lake City Division. He addressed the market feasibility of the project and the consumer research that was done in relation to the questions proposed to page 3 Council Minutes of April 7, 1998 the project. The market feasibility of the project would indicate that in relationship to the Laurel market, currently 35% to 38% of the volume of grocery store sales within the market are captured by convenience stores. This number can be reduced by taking a secondary market, which is what Ricci's is to the Laurel market and converting it more toward primary dollars. The only way to accomplish this is to build a new facility. The current facility, in relationship to parking and to what the consumer public wants to see from their grocery store dollars, cannot be accomplished by remodeling the old store. The market study indicates that the way to accomplish this is to build a new store. Associated Foods has built approximately 62 stores within the last five years and within a seven state area. Many of those stores are in rural communities or communities much like Laurel. It is not unique to have neighborhood locations. The reason neighborhood centers work strongly favors neighborhood centers. top three items that consumers favor close proximity to their homes. These which is first, second, or third. The well is because consumer coverage National statistics show that the are good produce, cleanliness, and top three items vary each year as to definition of a neighborhood center is a store that is close to the roof tops of where the consumer public lives or in direct proximity to their traffic patterns going home. This new store will meet that category, with a lot of population directly around the location. Associated Foods has no indication that this store will fail. They have not experienced one failure with the last 60 stores that they have built, within the last six years and they are not anticipating any failures. A consumer research study was done on the market. Three questions were asked regarding how people feel in relation to a new store on this site, what are the shopping patterns of the people that are in the market, and what stores do they shop the most? Three hundred seventy eight responded to the study. The study was done by an automatic dial program to make sure there was a random selection as to the phone numbers called. Sixteen hundred homes were called over a three day period. Fifty-three percent of the respondents live within a half mile or less to the location. Forty-seven percent strongly favored or somewhat favored the location. This is one of the strongest responsesin favor of the site that they have seen, in relationship to two others. Thirty-eight percent said the reason they wanted the new store was for proximity, second was for choice, and etc. The reason for opposing the new store was to keep the area residential. He felt this was not a direct response to favoring the new store's location, but rather in keeping the area residential. Traffic was the second reason to oppose the store. The conclusion of the study showed that response from consumers who shop at the closest store to their home were more likely to favor the building of a new store while those that traveled farther are more likely to oppose the building of a new store. This was an intensive study that was done according to generally accepted market research standards. Vinci Ricci introduced Bob Marvin of Marvin and Associates in Billings who did the traffic study for the proposed development. They started by counting traffic on First Avenue and Seventh and Eighth Streets in October. They had automatic counters on all three streets during the peak afternoon and evening hours. They were informed that school was not in session when they made the counts so counts were then taken during the high school peak period around 3:00 p.m. Both counts were made so they could tell the difference between the normal background of traffic and those during the school peak hours. Then they did a trip generation analysis for the new store. It was done by first counting the trips into and out of the existing store. They compared the analysis to the national average. The trips would actually double, with the new store being twice the size of the old store. The results indicated that they would have 3700 vehicles on a peak Saturday, 120 pedestrians, and approximately seven bicycles. On an average Saturday, the site development would add 2254 trips to the surrounding street system. A total of 74 new trips would be added during the peak evening hour and 161 page 4 Council Minutes of April 7, 1998 new trips during the peak hour on Saturday. From the analysis they concluded that First Avenue, in front of the store, would increase by about 18% of the existing traffic volume. Seventh and Eighth Streets would increase by 35% and 105% respectfully, which is about 200 cars a day. They did an analysis for traffic projections in the year 2017 by looking at the historic growth on First Avenue. They projected that in 2017 the site would generate 7% of the traffic. A safety analysis was done on crosswalks and pedestrian groups. It was found that according to Montana Department of Transportation standards for pedestrian crossing protection, these crossings are adequate as they exist and would be adequate after the new store is developed. From the analysis, they looked at the total development and made recommendations to change the circulation within the block and to provide one access on First Avenue plus eliminate parking along First Avenue and portions of Seventh and Eighth Streets due to sight distance requirements. They do not foresee any problem with development on this site. Alderman Walton questioned if the traffic study included Second Avenue? He also questioned whether there should be traffic enforcement such as speed bumps to deal with the amount of traffic on Second Avenue? Bob Marvin replied that the volume increase would approximately be five additional cars during the peak hours. He stated the volume of cars was low to begin with, about twenty cars during the peak hours. He asked if they included the traffic on First Avenue between 7:30 to 8:30 a.m. when there are school kids and also parents traveling to and from the schools verses just 3:00 p.m.? Bob stated the morning traffic was counted with traffic counters and the morning traffic is well below the afternoon traffic on First Avenue, during school hours as well. Vince Ricci introduced Jim Wertman, Architect for the site plan. He was asked to develop some concep~ional drawings to help the Riccis work with the neighbors and explain in graphic terminology what they can do with a grocery store in the neighborhood by blending in and enhancing its value. Jim showed drawings to the council and pointed out highlights. They worked with the neighbors on keeping the receiving area and back of the store away from Second Avenue and changed the front of the store to face north. The receiving area and garbage collection will now take place on the corner of Seventh Street and First Avenue, directly across from the post office, which being a commercial business would not find it as bothersome. The size of the store and it's placement on the site, with the parking, was established by the market survey and warehouse. They came in and established the size of a full service grocery that could be supported by the size of this community. They started with a 22,000 square foot store on the main level and 1500 to 2000 feet on the upper level for office areas and probably some mechanical space. In comparison, this store is half the size of the Buttery's or Albertson's stores in the area. In addition to turning the store, they are proposing landscaping of grass and a hedge along Second Avenue to accommodate the neighbors. Riccis will maintain the landscaping and it would not be the responsibility of the city. They are proposing that the other areas become pedestrian oriented with colored concrete, trees, and benches. They would like to commit to following the concept that is being presented here but they are willing to work with the city council and neighbors to better the interest of the store and the community of Laurel. Debbie Ricci showed a map that illustrated the support from the petition that they had. Ward II, where the lot is located, has the highest amount of support from signatures on the petition. The most important and interesting result from the petition is not the fact that they got eight hundred and some signatures, but rather that the scattering of support is even and consistent throughout town. Pins marking the map show that they have very solid and even support in this town. The numbers reflect Ward III with 130, Ward IV with 121, Ward II with 146, and Ward I with 135. page 5 Council Minutes of April 7, 1998 The zoning that they have applied for is called community commercial. The community commercial classification is primarily to accommodate the community retail service and offices that operate under a greater variety that would normally be found in a neighborhood or convenience retail development. Facilities that generally serve an area within a one and one half mile radius are proportionate with the purchasing power needs of the present and potential population within the trade area. She showed a chart with a circle drawn to include the area and it totally encompasses Laurel. The north school lot is within the center of town. The circle encompasses the trade area and this is the best location for their business and for proximity to the people of Laurel. One of the concerns that they have heard from the neighbors, is that if drastic zoning changes are needed, then the master plan first needs to be updated with the input of Laurel citizens. She would like to address the drastic change that is being referred to. The lot is zoned public. Public zoning has twenty-three usages. Of those twenty-three, fourteen can also be under the community commercial zoning. She does not feel this is a drastic change but is light zoning to light zoning, one public and one commercial. There are folks that have said they would rather have residential there, but in the ordinances there are zero like usages under residential. She said they are not asking for a drastic change in the use of this land. Public zone reads that the public zone is intended to reserve land exclusively for public and semi-public uses in order to preserve and provide adequate land for a variety of community facilities which serve the public health, safety, and general welfare. Their usage would be a commercial usage but what is more basic then providing the service of the needs of community by selling groceries. Their service provides for the public health and the general welfare. She said they just happen to fall under the commercial categories. She repeated that public zoning does not have any like uses with residential zoning and there is no drastic change in the use that they are asking for. Another point that she made was regarding the comprehensive plan. The comprehensive plan is general in order to provide flexibility and development and because of the ability of a rapidly changing area to grow to unanticipated levels. It also stated the general use of the land use plan strongly reinforces by its goals and objectives to provide harmony to the growth of Laurel, protect its citizenry and permit the community to develop progressively, economically, and in an orderly manner. This plan alreadyprovides for the protection of its citizens, harmony and growth for Laurel. This plan does not require updating. Debbie stated that the folks felt that the citizens of Laurel should be allowed input. She explained that there have been two public hearings for input and three meetings with them asking for their input. The comprehensive plan states that elected officials, city planners, and area residents should have some understanding of the characteristics of the population of the city to allow them to set priorities and develop the facilities and services for this area. She said they have done that with their phone survey and have provided that information. The phone survey showed, along with the petition of seven hundred plus signatures, 47% in favor and 15% not in favor of supporting this change. All the business community, the unions, and the general public and this is considerable public input. Debbie said she knows that these calls and letters have been received because people have told them they have been calling and writing on their behalf. She addressed the council and said that they have been hearing from their constituents. She said the council is responsible for allowing growth. The comprehensive plan also reads that if the city council makes land subdivision difficult within the community, the growth will be curtailed, if not stopped. Also, if city fathers do not provide adequate land in various zoning classifications for residential and industrial expansion, growth may not be able to take place. It is not the council's choice to stifle growth but to encourage it. She read, under special development, that the council should encourage maximum compatibility among different types of housing and between housing and other neighborhood facilities such as schools, parks, and shopping. She said this can happen. They are compatible and this is not something that is not allowed. Shopping, parks, and schools go together. page 8 Council Minutes of April 7, 1998 In the introduction of the comprehensive plan, it reads that the City of Laurel must function properly, providing the essential needs of the citizenry: light, air, water, food, efficient circulation, waste disposal, recreation, and employment. There must be continuous redeveloping, reshaping, and rebuilding of the city's physical form. The comprehensive plan also encourages cooperation with the county, school district, and with the state and federal governments. She asked how more cooperative can one be by allowing land use that would increase the taxes to Yellowstone County and will bring the taxes up to $ 43,798.00 a year? How much more cooperative can one be to allow the school district to obtain $ 15,000.00 more a year in taxes that they are not receiving now? She said this is cooperation. The comprehensive plan also reads that the planning data book is a combination of four years of work, reviews, and public hearings by the Planning Board and governing bodies. The amount of time to develop the comprehensive plan was four years. It is unrealistic, economically impossible, and highly discriminatory for the council to expect them to wait for a new comprehensive plan. They fall well within the boundaries of the plan and ordinances in place, at the time of application. It would place a huge hardship on them, their employees, and their business, especially when this is an appropriate use for the lot under any plan. The facility will fulfill the requirements of any good zoning plan. The protesters are not guaranteed, by any stretch of the imagination, that they can pick what this lot should be zoned. Debbie said they were asked before the city/county planners, do they really want a grocery store across from the park? She said the answer is yes. They have the petitions, the phone survey, the support and letters from the council's constituents that say "Yes" this is what is wanted by the citizens of Laurel. Along with the zoning ordinances, there is concern for the interest of health, safety, and general welfare. In that area they fit every criteria. They promote health, are not a safety issue, and they do promote the general welfare of the community. It is also to promote and guide development and to prevent waste and inefficiency in land use. The lot has sat empty for thirty years, which is inefficient. The purpose of zoning is also to provide adequate land and space for the development of commercial and industrial uses and to encourage such development in locations calculated to benefit the community at large. She said they fall within that one and one half mile zone. She stated that Vince and herself have taken to heart the neighborhood. They have heard their concerns after three meetings that they initiated with them. It is their intention to continue to have an open relationship with them. They have shared and allowed all the information that they have to them. She said even their competitor has been given every bit of information. They have nothing to hide and want to maintain an open and honest relationship. She said they will not go out of business and have asked themselves over and over again why are they doing this? The answer is because it is the natural progression of a successful business. Most importantly, it is because they know they have so much more to offer and can serve the community better. She challenges the city council to be remembered as the council that brought about a positive change to Laurel, the council that encouraged growth, prosperity, cooperation, and unity. She said they have fulfilled every request, they have relieved or mitigated every impact, they have proved that they are not a threat to public safety. They have received a recommendation from the City/County Planning Board that this is a great project. There is no benefit to the City of Laurel or to the school district to leave this land zoned as it is. She said they are asking the council to vote "yes" for progress. vince Ricci stated that they have looked for other places to build but there is not another one. He said they cannot stay where they are presently located. The north school lot is unique, it is the first time it has been offered for sale. It has no buildings remaining on it and it is located next to a busy street. He said the lot is on the edge of residential, in a multiple use area, and on a state highway. He heard that the post office went through the same opposition, but during the time he has been in Laurel, he has not heard that it is a bad location for the post office. He has not heard that it is hard to get in and out of. He has not heard that there is a traffic problem there or that it is an inconvenience, but it is acceptable. page 7 Council Minutes of April 7, 1998 Vince said that he has heard discussion on how little they paid for the land. According to the high school district's appraisal, the value of this property would be less than half it's value as commercial property. Their request for commercial zoning is what gives this property it's value. He feels they need this property to be successful. They cannot be put out on the east end of town, as it has been suggested, and be successful. He feels the decision needs to be based on the facts and the respondents from the survey show 47% in favor and 15% opposed, which is more than 3 to 1 in favor of it. They are the only ones that have shown serious interest in the land and have put earnest money down on it and have paid interest to the school district since signing the buy/sell contract. They are prepared to close on this land. He feels it is not spot zoning, but does fit in the comprehensive plan and is allowed in the city's ordinances. They have addressed the traffic concern. The zone change will allow them to build a new supermarket that Laurel can be proud of. It can better serve and provide for the needs of the people of Laurel. It will provide convenient shopping and access to the post office, parks, and schools. It will provide new taxes for the city and school district. It will create new union jobs. The union understands the importance of new jobs and that's why they support their efforts. They now employ twenty people, not counting Debbie and himself. Ten are full-time and ten are part-time with six of the full-time being the head of households and one is a single mother that supports two children, so every job is important. Five of the ten part-time employees are high school students who are able to work in Laurel and do not have to drive to Billings to work. The zone change will allow Ace Hardware to move to our current location and expand his business, provide parking for his customers and not have to encroach on city sidewalks. He will also hire new employees, if his business grows. Vince said these are the facts, if they are granted the zone change. Otherwise, the lot will stay empty and continue to deteriorate because there will be no residential activity at that site. Vince stated he has been in the grocery business since 1978. Debbie and himself purchased Wold's Thriftway in 1989. They are Laurel residents and are committed to make Laurel a better place for all its residents. They enjoy serving the people of Laurel and by building a new supermarket, will be better able to serve them now and in the future. They have visited with the neighbors to hear their concerns and proposed different site plans to lessen the change of the neighborhood. They want the chance to be good neighbors. This is why they have proposed entering into an operating agreement. They are a core business in Laurel and enjoy helping out with school and community activities. They need this location to continue to do this. Debbie Ricci referred to the letters of support that they have received from the unions. These unions know the importance of jobs, importance of allowing communities to progress, and allowing growth. Vince and Debbie want to thank them for their support. Mayor Rodgers asked for a show of hands from the supporters of the zoning change. There were a number of hands shown. Bruce Teeters, 420 First Avenue South, owns the Laurel Creamery and feels that Laurel, as any city, will lay stagnant if they do not progress to the future. Laurel could be a bedroom city of Billings or a slum of Billings. He stated this is positive growth for Laurel. He has always been in support of Laurel growing and progressing and feels it is the council's duty to do anything they can to help the Ricci's bring a three million dollar project into the town of Laurel and make it successful. Doug Poehls, 119 Yellowstone, is a grocery broker who works out of his home and distributes specialty foods to grocery stores. He feels Ricci's and Jan's bring a spice of life to this community, but there always needs to be competition and variety. He feels it is important for Laurel to grow and develop as a community. Michael Haney, 306 4th Avenue, owns Michael's Electronics. Last fall he did a business proposal and researched expanding his business into a full- page 8 Council Minutes of April 7, 1998 time operation. He found Laurel had no buildings available to rent. He feels this ties in with the case at hand right now because by building a grocery store, this would show the direction that Laurel has to grow. Laurel is locked in on one side by the railroad and interstate and he agrees that laurel can either lay stagnant or grow. Ricci's would be a step towards this growth. Teresa Brohaugh, 310 1st Avenue, does not live far from Ricci's Thriftway now, but would like to see a new grocery store on the north school lot in order to have a larger store to shop in. She said that she hears more noise from the railroad or traffic up and down First Avenue then she does from living close to the store. She is in favor of the new store. Council recessed from 8:13 p.m. to 8:27 p.m. OPPONENTS: Diana Walker, 613 2nd Avenue, reminded everyone that this is not about a store, but about zoning. She referred to table 17.20.010 showing three different zoning changes, community commercial, public, and residential professional. There is not a lot of difference between residential professional and public, but a huge difference between community commercial. She presented a graph showing the possible number of uses for each. Residential professional had sixteen uses, public had nineteen, and community commercial was up to 80 uses out of 148 uses or categories. According to the table, parks, playgrounds, play fields, golf courses, community center buildings operated by public agencies, and neighborhood or homeowners associations are allowed in agricultural, residential professional and public but are not allowed in any community commercial. The grocery store will be across the street from the busiest park in Laurel and which has the most activity with the swimming pool, tennis courts, ball fields, playground and picnic areas. She feels if commercial business is allowed in this area it will change the face of Laurel and increase traffic in an area that is north of town. She noted that the areas south of town are split off from the business district and asks why are we splitting it off again. Does it really need to be split in three different places? Laurel is not that big. She said the phone call survey more than likely covered within a one half- mile area. She referred to the traffic study that was done in October and asked what about the summer traffic? She said there is a lot of foot traffic, skate boards, bikes, and roller blading going into the park. She pointed out that young children get excited about going to the park and do not pay attention to traffic. She has heard comments about the convenience of having the shopping close to the post office as well as hearing comments from people saying they do not care as long as it is not anywhere near their house. There are a lot of people with that attitude. Diana feels they did an excellent job of keeping the phone study unbiased, but does not think it was unbiased because it gave the location. If there had been more than one choice of location, it would have seemed more unbiased by giving a person an option, rather than just the one location in their front yard. She is certain that the proposed store is not expected to fail, but how many people take on an adventure with that kind of expectation? She referred to the new store that Jan's IGA built on West Main that is not being used as the grocery store it was originally intended for, but turned into a fertilizer store. She said there is no guarantee, if there is a zone change to community commercial, what type of business may be there in the future. This is uncertain with changing of businesses such as a fertilizer store operating where Jan's IGA proposed a grocery store or where Ace Hardware will be moving to Ricci's present store. She is not saying these businesses are bad but if the zone is changed to community commercial, there will be no guarantee as to what type of business could be in the area. She referred to the fact that the taxes if Ricci's stay in an area that is already commercial. was sold and used in a way rather than community commercial, also be taxes to benefit the school and city. school and city will still benefit from If the land there would page 9 Council Minutes of April 7, 1998 She has done reference work with real estate agencies and she has learned that if the area goes to community commercial, chances are the property value will drop. This is not a guarantee, but most of the time it drops. She noted that if property values drop then taxes will drop and the city will receive less taxes. Diana referred to the real estate purchase and sale agreement. She feels that the school could possibly have gotten a better price from another buyer. She pointed out that under hazardous substances and inspection indemnity, she reads the school is responsible for cleaning up hazardous substances from the boiler room in the school building that once sat there. She checked with the ETA and because of the type of chemicals that would have been used in the boiler room, two thousand dollars could easily be spent just for the testing, not considering the cleanup. Where is the benefit if the school is responsible for this? She pointed out that the school obviously did not feel the need to sell it because it was not on the April 14, 1997 agenda in the newspaper. It was not mentioned until theApril 28, 1997 agenda that the north school lot was considered for sale. The school accepted bids after the April 14, 1997 meeting where Mr. Ricci expressed interest in purchasing it. If the school needed the money, it would have tried to sell it before there was an interest shown to buy it. She pointed out that there was another buyer in the past and the school told them they were saving it for their use. Diana pointed out that by bringing in more traffic and people to the area, crime will go up. She said if this happens, she would not want to see her daughter or son's face on a flier for missing children. With more people in a residential or a park area where it is a lot easier to case the neighborhood and the children, there is more chance of it happening. She asked how much has business changed in the last few years? Has it changed a great deal so that the city really needs to move its downtown area or just improve it. She does not understand how it will make it better by moving it five blocks. She questioned the fact that there is not another location available. She knows that the Ricci's have considered the Martin property behind the present grocery store. She cannot express enough that the north school lot will not always remain an empty lot. She feels there are alternatives to what is being proposed now that are acceptable to many people and that would not require a zone change or a change of residential. Examples of things that would fit with the rest of the neighborhood are an art gallery, museum, school administrative building, boys and girls club, community center, additional park and recreational facilities, apartments and homes. She does not think people realize what can go in that lot if it is zoned community commercial. She does not wish the Ricci's bad luck and a grocery store is not the worst thing in the world but the truth is that if they fail or move on, there would be an empty building and the neighbors would have no protection against what could go in there next. At this time, the city can prevent something undesirable from moving in if it is not zoned community commercial. She said the council has the power to stop commercial interest from compromising the integrity of a residential area and the safety of children in the multi-recreational parks and schools. She quotes Cal as saying, "I guess we can say we should have started to do this kind of planning earlier, but none of those factors are convenient at this point and time. This has prompted the community to take a look at itself and understand a need for planning a new segment." Diana suggests taking a look at that first. What if First Avenue is not the best place to put a commercial business? First Avenue is a state highway. Rimrock Road is also a highway and is residential. She and others want the power to control it. She stated it is not true that there is a small minority of people that want to keep it the way it is. She said that more and more people are coming to them because they believe in their cause. If it was just her that believed in it, she would have given up in frustration and anger but the truth is, there are too many people that are at stake. People that page 10 Council Minutes of April 7, 1998 invested time, money, and memories into their homes. There are people that want to be close to schools and parks, but not to commercial businesses. Kathleen Baumgartner, 601 2nd Avenue, addressed the council and stated that they did not think that lot would be empty forever. When they bought their house, they heard a school administration building may be built on the lot or even apartments and they accepted that. They could have bought closer downtown by Ricci's but chose not to. They moved behind the post office accepting the fact that the lights would shine in her child's bedroom and that the mail truck comes at five in the morning, but that was her choice. She did not mind because the post office is not open seven days a week. To live a block from a grocery store was not her choice. She addressed the parking issue on the traffic study. It was suggested to eliminate parking along First Avenue. First Avenue is where people park to take their children swimming. There would be three to six hundred feet of parking space at the park. Eliminating the parking on First Avenue in order to accommodate the traffic at a store is not beneficial to the city, as far as parking goes. People will dash back and forth across First Avenue and increase the safety problems, as they do between the Credit Union and Ricci's now. It is illegal but is done all the time. People seldom walk to the corners and back. She referred to the exit onto Seventh Street for the delivery trucks and said there is a city ordinance that prohibits this. It is the traffic ordinance 10.44.010 and says all commercial delivery trucks in excess of two tons, trucks delivering sand, gravel, concrete, dirt, rocks, building supplies, furniture, any and all other commercial products shall, when delivering within the city, use the main thoroughfare: First Avenue, north and south, and Eighth Avenue. So the lot opening for delivery trucks would have to be on First Avenue and according to the traffic study, it is not such a good idea. She said there had been discussion of commercial zoning bleeding up and down First Avenue and other businesses moving in. It was said this could not happen because people would have to sell two lots and could not sell just one lot. She can see someone on a corner saying they are ready to sell and a fast food place would say I'll give you three thousand dollars more than market value. The homeowner would approach the city council and say they want to sell to a fast food restaurant to get three thousand more dollars and it would be a good benefit because it is across from the school and kids would not have to go clear down south. She covered the fact that nobody would sell out two houses at a time. There is an ordinance 16.24.050 that says corner lots with residential use should be extra wide to permit appropriate building setbacks from an orientation to both streets. Because of that, in her neighborhood, all the corner lots are at least two lots, if not three. Those lots could be sold for commercial use. She referred to someone saying parking would be a problem for commercial businesses. In ordinance 17.08.340, a drive-in restaurant means a use whose retail character is dependent on a driveway approach and parking space for motor vehicles so as to either serve customers while in the vehicle or permit consumption of food or beverages obtained on the premises, in a vehicle. As far as parking for a restaurant that size, Ordinance 17.40.909 (F) says restaurants, including bars, taverns, nightclubs, lunch counters, diners and all other similar dining and drinking establishments - one space for each four seats provided for patron use. Taco John's has no seats, so they do not need a parking space, but they would need a driveway, so they could fit on a corner lot. Kathleen stated there were some concerns with the potential binding agreement with the city. As far as a contract stands, it is only as strong as the two people doing it. If both parties decide to change it, they can. That is the nature of a contract. Her concern is that if Riccis build this building and six months down the line they might say they cannot make their payments and they need to go twenty-four hours to compete with IGA. They will come to the city and say they really need to go twenty-four hours. Will the city say no? No, they will say we want you to succeed so go twenty-four hours. There goes one part of the contract, then what is next? She remarked on the fact that Ricci's is making a sacrifice to do the landscaping and referred to a city ordinance that reads any place with page 11 Council Minutes of April 7, 1998 3 twenty-two thousand square feet has to, by law, donate 10% of their property to landscaping. She agrees it will look nice but not because it was a big sacrifice. Kathleen commented on the comprehensive plan showing a red dot that specified some sort of business. She said that in the comprehensive plan it reads that it is in a general site. She is not sure how the council wants to interpret general, but that dot is over a mile from the proposed north school lot. She referred to discussion in 1978 when the comprehensive plan was adopted. At the April 26, 1978 Planning Board meeting John McMartin of Cumin Associates handed out the land use element for immediate study and commented that this will be the handout for the public hearing. They discussed First Avenue residential. Mr. McMartin was to provide a zoning ordinance for medical and dental clinics in the residential areas. First Avenue is arterial but it is a residential arterial much like Rimrock Road in Billings, which is an arterial with no businesses up and down it. Kathleen spoke on the finances of building a two and a half million dollar grocery store and said that business is very risky and she does not want her neighborhood to be forced to take this risk. She does not want them to just pop it into place and say here it is. If there is going to be commercial risk, then do it right and look at the comprehensive plan. If there will be commercial business up First Avenue then put it there and she can sell her property at a commercial rate. She found that since 1960 Laurel has grown by 1085 people. That is 271 people per decade. In the comprehensive plan, it mentioned building all the various transportation methods. We are already in phase two of constructing the west Laurel interchange on 1-90. As we try to do an orderly progression of zoning where we provide service to the areas that are growing, we are planning on growing to the west and east. Kathleen introduced David Dietrich, Dietrich Law Offices, who is a specialist in land use. He addressed the council to provide some basis for the legal issues that they may face in making a decision. He said this issue is a recurrent problem in land use planning. The Riccis, who are obviously upstanding members of the community, wish to expand their business and provide additional jobs, services, and increase the city's tax base. On the other hand the surrounding residents, who he represents, are clearly opposed to the proposed zone change. He commented on some of the information that was presented tonight that he feels technically would not be permissible. First is the telephone survey that was done in early August and the petition. The reason that these would not be admissible in a court of law is because they are classic hearsay. The reason the hearsay rule is not a matter of evidence is because there is not the opportunity to cross examine Dr. Wilson, MSU Professor, who made the pole. The reason he wanted to point this out is because he does not think Dr. Wilson's poll is necessarily wrong, but it is not a substitute for the council's own determination of what is in the public interest and what kind of public opposition there is here. The other thing he pointed out is that the poll was done in early August which, he understands, was before a lot of the change protests were actually filed. The poll was done early on and he wonders what the results of the poll would be if done again today. He hoped the council would consider this in their determinations tonight. He feels issues here tonight are of growth for the purpose of enhancing jobs and services, the tax base, and the issue of controlled growth. He feels the comprehensive plan needs to be looked at and determine if there is anything that anticipates this type of growth. He referred to the red dot that was pointed out as kind of floating out there and the issue has been raised before the planning board. He said there is not anything in the comprehensive plan that specifically addresses commercial development on north south arterial, mainly First Avenue. He said the only evidence that he has been able to find in the comprehensive plan in favor of commercial development in the north part of Laurel is the red dot which, Kathleen stated earlier, is far removed from the proposed site of the grocery store. ~ page 12 Council Minutes of April 7, 1998 He pointed out that at the beginning of the project the City Planner, Cal Cumin, did himself warn the city council that this appeared to be spot zoning. In the September 11, 1997 Planning Board minutes Cal recommended that the proposal be denied on the basis of spot zoning. He is not comfortable with the legal aspects of changing the zoning and feels he can condifdently advise the council on these aspects that have been established in the courts around the United States. David asked what has changed from then to now that has not made this spot zoning? He would submit that the repositioning of the store and traffic study does not remove it from being spot zoning. He will also submit that the high quality of landscaping that they are proposing does not remove it from being a spot zoning issue. David referred to spot zoning and presented copies of two cases relating to spot zoning. The big case in Montana is the Little case out of Kalispell. He quoted from an actual supreme court decision "There is no single, comprehensive definition of spot zoning applicable to all fact situations. Generally, however, three factors enter into determing whether spot zoning exists in any given instance. First, is the requested use significantly different from the prevailing use in the area? Second, the area in which the requested use is to apply is rather small. This test, however, is concerned more with the number of separate landowners benefitted by the requested change than it is with the actual size of the area benefitted. Third, the requested change is more in the nature of special legislation. In other words, it is designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public." It went on the explain whether it has to fall within all three areas for it to be spot zoning. David went on to quote," In explaining the third test, the list is not meant to suggest that the three tests are mutually exclusive. If spot zoning is invalid, usually all three elements are present or, and another way, the three statements may merely be nuances of one another. This qualification use be heeded because any definition of spot zoning must be flexible enough to cover the constantly changing circumstances under which the test may be applied." The Little case is where they wanted to put a shopping center in an area where 99% of the adjacent area that was inside the city of Kalispell was residential. David submits to the city council that this is very similar to what is happening in Laurel because if one looks at the surrounding neighborhood, there is a 270 degree radius, with the exception of the post office, where it is clearly residential. The other uses that are immediately adjacent: the school, park, and post office are not as intense as the proposed use, if one looks at the analysis of community commercial verses public zoning that Diana walker explained. He submits that Laurel clearly falls under the first category of spot zoning. The second spot zoning question is whether the area for which the requested use is to apply is rather small. Here they are talking about whether there is a small number of people that are requesting this change. This is where David got back to his issue of the inadmissibility of the poll and the inadmissibility of the petition. He thinks the council should listen to the evidence and testimony tonight from the proponents and opponents and make their determination based on that. The polls are somewhat subject to question. Another thing that is quite apparent is that the Riccis themselves, stand to gain the benefit from this. They admittedly operate a good grocery store and will provide a valuable service to this community, but it is clearly designed to benefit one land owner, which is the Riccis. The third test talks about whether it is in the nature of special legislation. He said it is tempting for him to enact what he thinks is special legislation because of the quality of what CTA has shown, the quality in Ricci's grocery store and the fact that they have been owners of this business since 1978. He submits to the council that this is precisely what spot zoning is designed to prevent. He did not think there was a need to get into the specifics of the comprehensive plan because he wanted to state that this is where the analysis relating to the comprehensive plan comes in. In analyzing the third test, one has to decide whether or not it is in compliance with the comprehensive plan. There has been a lot of bantering about the comprehensive plan tonight. He pointed out that in the comprehensive plan, under goals and objectives, it encourages commercial and industrial developments to develop in a manner which is compatible with the surrounding neighborhoods. He questions, even page ~ Counci~ Minutes of April 7, 1998 with their valid protest, whether this is in fact compatible with the surrounding neighborhood. One of the other goals of the comprehensive plan is to enocurage new growth to occur in a logical manner only where urban services can be efficiently and economically extended rather than permitting development to occurring in a random and haphazard manner. David feels that Cal has given the council a wise observation of putting a moratorium on zoning for a year after this, but also submits to the council that this signals that it is going to be a continued problem on this arterial. There will be other owners with zone change applications before the council in the next several years. David said they use this argument in law about the flood gates. He said this is a classic example of this kind of intensive use of an arterial and other zone applicants which will come before you in the future. The council's determination tonight is whether they want this to continue. He submits that the comprehensive plan does not address this issue, except with the roaming red dot that does not seem to have any real site. This is something the council may want to consider in an amended comprehensive plan. He does not think the comprehensive plan is specific enough to address commercial development in this area and he feels it is not specific enough because of the other concerns of spot zoning, the council should error on the side of protecting the resident's property rights. He said a twenty two thousand square foot building is being dealt with here and when he drove around the neighborhood and looked at the homes, he saw that the average square feet of the homes is not greater than fifteen hundred to two thousand square feet. The proposed facility to be developed is very close to a residential area that is probably as least ten times as great in size. This is a large change in the neighborhood. In the Little case in Kalispell where the property was not zoned for a shopping center, he believes that it is now an assisted living facility similar to the Mission Ridge development that is on Rimrock Road in Billings. There are other uses for this property that would be less intrusive to the neighborhood. David referred to another case that is the most recent spot zoning case of the Montana Supreme Court, Boland vs. City of Great Falls. This is a case where the neighborhood lost. They fought to stop a multi-family condominium complex in the middle of their R9600 zoning classification. In this case, he agrees with the Montana Supreme Court in some respects because there were ample similarities between single family residential and multi-family residential. He finds the Boland case interesting and read from the case document that the proposed condominium project consists of single family attached units on the interior of the property and single family detached units on the perimeter to act as a screen between the existing single family dwellings adjacent to the property and the rezoned area. The city required the developer and the owners to enter into a zoning contract that included a number of restrictions in order to preserve the residential integrity of the property. The requirement that the condominium units on the perimeter of the property be single family detached units, along with the other restrictions required by the city, insured that the new development will be compatible with the surrounding area. Daivd proposes that this is what Vince Ricci is attempting to do in this case. It is a fair effort to imitate what happened in the Boland case, but he does not thing it is the same thing. What they have, fundamentally, is a very diffent use, in terms of a more intensive use of the property. He agrees with Kathleen and Diana's observation about the fact that this contract presents all sorts of problems. This contract, Development Agreement with the City of Laurel, would not be necessarily binding. It is a specific effort to deal with the neighborhood's concerns but by a legal perspective, would not be binding. It is an attempt to comply with the recent grounds of the Montana Supreme Court but David does not think that the use is the same as in the Boland case because of the difference between a twenty-two thousand square foot building in a resential area and the fact that there are many provisions of this contract that would be very difficult to enforce upon a successor or even on the Riccis, themselves. He exercises real caution in voting for the zoning proposal. David has tried to point out some of the basic provisions of spot zoning and why he thinks this is a classic spot zoning case. Judge Treweiler, in page 14 Council Minutes of April 7, 1998 his consideration of the Boland case, asked why are there different zoning classifications if this is not called spot zoning? David feels this is the type of case where this argument is very palpable. There are different zoning classifications, public and resident to community commercial that are in fact, very different and if. granted, he does think this would constitute spot zoning. He feels the council should defer their decision on the zoning change until they have had a chance to reconsider the master plan. This would be the most responsible thing. It may be somewhat of a financial hardship on the Riccis but the larger issue here is how does this impact Laurel as a whole and how does it impact development on the north side of town? He does not feel a master plan is something that is adopted and changed on a case by case basis. The master plan was done in 1978 and submits to the council that the master plan needs to be reviewed. He stated this is not an issue of whether the Riccis will fail, if that property is developed. They will not fail. They are very successful people and have given a very high quality presentation tonight. The issue is compatibility. This is what the council has the power to decide, with jurisdiction over the zoning within the city. He raises questions about the survey done in August, before this problem reached its peak. He feels the council is in the position to determine what is the public's interest, not a professor from MSU-B. He pointed out to the council that if they were within one hundred fifty feet of that area, they would have very strong opposition, but that is why it requires a three quarters council override. David submits that many of the people that signed the petition and answered the poll did not have the concern of whether the fair market value of their property was going to decline. The Riccis have a contract that they have to close by May 1, 1998 with the school district. If they do not meet the financing contingency, they can get out. They have not argued that they will be bound by it. They do not own the property and can get out of the contract, however, the people whose property surrounds it will be impacted for a long time. He invites the council to consider what it will do the the property values of the houses on the seven hundred block of 2nd Avenue, in terms of the market value and whether or not the comprehensive plan specifically directs them to have commercial property on the north side of Laurel. He hopes the council will look and consider the big picture of what will be happening in north Laurel in general and to this neighborhood, in particular, if they do adopt this zone change. Donna Kilpatrick, 814 1st Avenue, spoke in opposition to this proposal. She asked the council not to abandon the zoning comprehensive plan that is in place. She asked them not to let the emotion of this proposal coax them into acting prematurely and allow themselves to make a good quality decision that is in the best interest of the city. If in time they find they want First Avenue to be strip commercial, then give it the study it deserves and depending on the results, make their decision. She asked them not to put the cart before the horse. There is no state law or city ordinance that prevents a grocery store which would deal in beer and wine sales from being located close to a park and school, but planning could prevent this. A retail operation is not what the city needs in their park and school area. She asked the council to give this much serious thought in making their decision. Lydia Frank, 812 2nd Avenue, has lived there since 1951. When they built their home, it was residential zone and prays that it stays a residential zone because there is enough traffic with the church, nursing home, school, and the post office. She asked the council which one of them would like to have a supermarket built across from their home or close to their neighborhood. She would not. She stated that at the first meeting with the Riccis in the tent on the north school lot, she asked Debbie Ricci how she would like to have a supermarket built across from her home and she said she would sell. She does not want a supermarket in her neighborhood. Lydia read from a clipping she found in the Billings Gazette. The clipping talked about a person who lived in a good area but property values on their street and a couple adjacent streets were going down because two big construction projects have doubled the traffic. They asked if they could appeal their property tax bill because the extra traffic has hurt her property value and are they out of luck because the city approved both page 15 Council Minutes of April 7, 1998 projects? The answer was that they should definitely appeal their tax bill. The fact that city officials approved the projects that doubled traffic in their neighborhood does not hurt their chances of winning the appeal, in fact, the city's actions may actually help their efforts to have the tax bill reduced. She prays that the council will consider this and place themselves in the shoes of those who live in that area. They have a nice neighborhood with a lot of traffic but would like to leave it the way it is. REBUTTAL Comments from a gentlemen in the audience who spoke regarding some alternatives that may go in the north school lot such as motorcycle or auto repair shops and he does not think they would fit in the area. What he sees is a professionally designed business that will increase the look of the area. He mentioned land values. He said he lives two blocks away on the corner of third and Maryland. This area has a post office, beauty shop, day care, school, and nursing home with semi-trucks coming and going on a daily basis. It has not decreased his land value at all. He said his land value has doubled in the last ten years. He feels the future growth of Laurel will be to the north, west, and northeast. He stated that if there are five or six housing developments to the north then the traffic will be more congested at the underpass as people try to get to IGA. He feels a grocery store in north Laurel will relieve that congestion of traffic. He mentioned the zoning is designed to work with each area so it is better designed to take care of the citizens. He feels the grocery store will be closer to the neighbors and senior citizens and feels this will benefit Laurel today and in the future. Mike Dockery, attorney representing Riccis from Crowley and Associates in Billings, touched on a number of issues raised by the opponents and Mr. Dietrich. He referred to their opening statement that this was a question of zoning in which they put up a chart showing the disparity in the number of uses that could be allowed in community commercial verses the other types including residential. He pointed out that this is one of the reasons that the Riccis have proposed the development agreement to eliminate some of these concerns and reduce the number of uses so that it is consistent with the project that they proposed and would be consistent even though it is a community commercial zone. He pointed out a couple of items regarding the traffic study done by Bob Marvin. He is a professional traffic engineer and does his study based on statistical analysis. Mike does not think it is important that it was done in October and he feels his traffic studies are accurate. The point of the traffic study was not that there would be an increase in traffic as a result of this project, but that it would not be an adverse increase on the traffic. He said to remember that the proposed changes from the highland improvements are going to increase the traffic on First Avenue anyway. Those changes are going to come but not as a result of the Ricci's project or any other project on this site. As Bob Marvin has suggested regarding First venue, there will not be any negative impact. As far as 2nd Avenue and Seventh and Eighth Streets, they already have adequate compacity to handle the traffic and there would be very minor increases to these streets. He referred to the parking on First Avenue and pointed out that for this project the parking on site would be adequate to serve the customers. Mike stated there was a question of having this site sold for other uses. He said there were no other bidders for this property when the school district put it out for bid. The Riccis were the only ones that bid on it. The school's appraiser sited commercial use as the highest and best use of that property, based on a number of factors including the surrounding land uses, as well as the traffic on First Avenue. He said it is not realistic to stand before this council and suggest that some other use should be made of it. There were no other bidders and it probably would not be an appropriate site for residential use because of the current traffic on First Avenue and the significant increase that will occur regardless of what happens to this site. There were a number references to the possibility that the Riccis would fail and he would point out that the argument presumes that the Riccis are proceeding recklessly. He would suggest that the number of studies that they have made, the analysis, and the help they have gotten from other page 18 Council Minutes of April 7, 1998 professionals show that this is not true. They are not proceeding recklessly. They would not proceed with a project of this size and magnitude if they were not absolutely confident that when completed, it would be a successful business. There has been a lot of talk as to whether the zone change is consistent with the comprehensive plan. There is certainly the red dot in the comprehensive plan which has been explainedby Cal cumin who is also one of the authors of the plan to indicate that there was a need and possible location for a commercial site within that residential area. The exact site for this could not be specified, but at least there was a need, as is always true of a comprehensive plan, that the concept must remain flexible. Things must occur after the plan has been adopted in conjunction with the development of a city and its growth. A commercial site within that area is consistent with the comprehensive plan as Cal Cumin has said. This is not inconsistent with either the comprehensive plan or the zoning ordinance that recognizes that community commercial should occur in island rather than strip development. He said this is a perfect example of how that could occur because this would be an island commercial use designed to serve the residential area surrounding it and is not inconsistent with the other uses of the school, post office, park, and pool. This is not completely surrounded by single family residential property and is not an inconsistent use. Suggestions have been made to delay this until the comprehensive plan can be rewritten. He would like to say the ordinances recognize that. Occasionally, property needs to be rezoned for a number of reasons, primarily because as the city grows and changes there has to be some flexibility in those ordinances. The comprehensive plan itself, says that it is intended to be a flexible document. The question the council needs to consider is whether they have enough information on the project to make the decision that they are being asked to make. Do they have enough information on the site and the surrounding uses, on the streets and traffic patterns, changes to First Avenue and increases of traffic that will occur anyway, benefits that will flow to the community and the residential areas in north Laurel, and information on the impacts and litigating measures that are being taken by the Riccis on the project. He would submit to the council that they have all this information, a significant amount of information and more than enough to make the decision that is being asked of them. So this project can go forward. He would submit that it is not necessary to delay and rewrite the comprehensive plan. This is the same comprehensive plan that already contemplates that a commercial use is not only consistent with the plan but also consistent in this area. There is an argument that if this community commercial zone is allowed it will open the flood gates and there will be community commercial up and down First Avenue. This council has complete control over those decisions and as Cal Cumin has pointed out in his report, there are minimum appropriate sizes to the parcels in the rezoning decision. He would suggest that if the council considers this unrealistic, they would lose control and discretion to consider other rezoning applications with every bit of indulgence. He knows there are citations to a number of zoning ordinances regarding use and development of property. This project, as with any project, must comply with all those ordinances and to the extent there might be small discrepancies between the site plan presented. Those discrepancies would be corrected in whatever project is built and these must comply with the ordinances. In reference to the question about the binding affect of the development agreement, the agreement has been presented to the council in order to address the number of concerns that have been raised. It details how the property will be developed, used, and what litigating measures will be taken. It is a binding and legal document. It can be enforced by the council in the event of a breech by any legal and equitable remedy, including specific performance. In conjunction with this is the suggestion that if the agreement is entered into, this council will be compelled to authorize changes. The draft agreement clearly stipulates that the only changes that can occur are with this council's expressed written consent. He submits that this is no different than saying you have no control over the zoning. The council certainly has control whether they will allow any amendments or changes to page 17 Council Minutes of April 7, 1998 that development agreement. Turning to legal issues, there was discussion by Mr. Dietrich about admissibility of certain issues. Mike said that council should be aware that the rules of evidence do not apply to a proceeding such as this. It is clearly the preannouncment of the courts that decide these issues. The council is entitled to consider hearsay evidence, but is not bound by the technical rules of evidence as Mr. Dietrich and himself would think of them. He told the council they are entitled to consider that poll and go whichever way they want. He would point out that Dr. Wilson was not able to testify tonight because of another engagement, but he did testify at the two prior public hearing and answered questions. Mike assured that Dr. Wilson's study, because he is a professional, was done with the level that one would expect and results are what they say they are. It does not mean that there are no tiny discrepancies or if another poll is taken that there might be slightly different results. They are saying that the poll, at the time it was taken, represents the feelings of the citizens of Laurel and those surrounding site. There is a discussion of spot zoning. Mike completely disagrees with Mr. Dietrich. He said this is not spot zoning. He also said they want you to focus on the benefits to this site and focus on the benefits to the Riccis, because then it might be spot zoning. They want you to ignore the benefits that flow to the school district, to the city and county in terms of taxes and other benefits to the city in terms of increased employment and jobs. There would also be increased jobs and employment to other businesses that do business with Riccis. They want you to ignore the benefits that flow to the residents of the city and particularly the residents of the north residential area in terms of access to a grocery store. Mike said that in the materials before the council, the case requested a change that was clearly inconsistent with the comprehensive plan and that is what troubled the Montana Supreme Court. In this case, the requested zone change is clearly consistent with the comprehensive plan. Mike pointed out that the council should not take legal advise from himself or Mr. dietrich as they stand before the council and give their legal analysis. They are here to advocate the interest of their clients. Mike stated that Joe Leckie clearly said that under the circumstances presented and the evidence and materials not only before the planning board but before the city council, that he felt entirely comfortable in defending the decision against spot zoning. Mike suggested that the council listen to the advice of Joe Leckie, as he has already spoke on that issue. Debbie Ricci clarified that the trustees of the School District No. 7 looked out for the best interest of the people and renegotiated after a sealed bid was filed. She said they had the only bid of $84,633.00 and the school district came back and negotiated on the people's behalf to $100,000.00. She said the buy-sell that Diana had is the original one and is not valid. It is not the buy-sell in affect. The school district is also receiving six hundred and some dollars a month in interest for an extended closing date. Debbie said that the folks have to get their information straight. Three- fourths of the problems are because there is only half of the truth and no facts presented. She responed to the missing child issue. She said they are also victims of crime. They do not create crime. She can say that folks living behind the post office have as much possibility of running into a disgruntled post office employee with a machine gun as a little girl being picked up outside a grocery store. Public comments are closed. Mayor Rodgers thanked everyone for conducting themselves in a good manner and for their input and concerns. Mayor Rodgers opened discussion and questions between the council and the speakers. There were none. Council recessed from 9:48 p.m. to 9:54 p.m. COMMITTEE REPORTS: --BudGet/Finance Com~nittee minutes of March 17, 1998 were presented. page .18 Council Minutes of April 7, 1998 Motion by Alderman Easton to enter the Budget/Finance Committee minutes of March 17, 1998, into the records, seconded by Alderman Kroll. Motion carried. --Budget/Finance Committee minutes of March 24, 1998 were presented. Motion by Alderman Johnson to enter the Budget/Finance Committee minutes of March 24, 1998, into the record, seconded by Alderman Orr. Motion carried. --Budget/Finance Committee minutes of March 31, 1998 were presented. Motion by Alderman Johnson to enter minutes of March 31, 1998, into the record, Motion carried. the Budget/Finance Committee seconded by Alderman Temple. --Budget/Finance Committee minutes of April 6, 1998 were presented. Motion bv Alderman Temple to enter the Budget/Finance Committee minutes of April 6, 1998, into the record, seconded by Alderman Orr. Motion carried. --City Council Committee of the Whole minutes of April 6, 1998 were presented. Motion by Alderman Orr to enter the Whole minutes of April 6, 1998, into the Staudinger. Motion carried. City Council Committee of the record, seconded by Alderman --Park Committee minutes of March 26, 1998 were presented. Motion bv Alderman Easton to enter the Park Committee minutes of March 26, 1998, into the record, seconded by Alderman Staudinger. Motion carried. --Police Committee minutes of March 31, 1998 were presented. Motion bv Alderman Kroll to enter the Police Committee minutes of March 31, 1998, into the record, seconded by Alderman Orr. Motion carried. UNSCHEDULED MATTERS: Mayor Rodgers appointed Jim Stevens as Fire Chief, Terry Ruff as 1st Assistant Chief, Steve Wegner as 2nd Assistant Chief, Rob Harris as 3rd Assistant Chief, Matt Hoppel as Training Officer, Alan Gradwohl as Fire Marshall, John Meeks as Fire Prevention Officer, and Miles Walton as Safety Officer. Motion by Alderman Johnson to confirm the appointments, seconded by Alderman Orr. Motion carried. Mayor Rogers appointed Brent S. Peters as a fireman to the Laurel Volunteer Fire Department. Motion by Alderman Johnson to confirm the appointment of Brent S. Peters as fireman to the Laurel Volunteer Fire Department. Mayor Rodgers introduced Cindy Allan as the new part-time council secretary. Alderman Temple reported on the firemen's practice session. There was a good turnout and was well received by the young firemen. Alderman Johnson introduced the subject regarding commercial businesses flooding First Avenue. He would like to have discussion on holding a public hearing to place a moratorium on the development or zone changes on First Avenue. Cal Cumin mentioned he has heard concern on how there can be control of developing commercial business. He said there can be control but one way to assure people is to put a moratorium on applications to changing the Laurel commercial zoning. It would give the city the opportunity to get the community involved. Now that the people have been introduced to the commercial zoning on First Avenue, there could be good input. page 19 Council Minutes of April 7, 1998 Motion by Alderman Temple to hold a public hearing on April 21, 1998 for a moratorium on commercial growth, seconded by Alderman Johnson. Motion carried. There being no further business to come before the council at this time, the meeting was adjourned at 10:01 p.m. Donald L. Hackmann, Clerk/Treasurer Approved by the Mayor and passed by the City Council of the City of Laurel, Montana, this 21st day of April, 1998. Charles Rodgers, Attest: Donald L. Hackmann, Clerk/Treasurer