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Home My WebLink AboutCouncil Workshop Minutes 04.29.2014 MINUTES COUNCIL WORKSHOP APRIL 29, 2014 6:30 P.M. COUNCIL CHAMBERS A Council Workshop was held in the Council Chambers and called to order by Mayor Mark Mace at 6:30 p.m. on April 29, 2014. COUNCIL MEMBERS PRESENT: _x Emelie Eaton _x Doug Poehls (6:40 p.m.) x Bruce McGee x Richard Herr Chuck Dickerson _x_ Scot Stokes x Tom Nelson x Bill Mountsier OTHERS PRESENT: Heidi Jensen, CAO Shirley Ewan, Clerk/Treasurer Monica Plecker, Planning Director Sam Painter, Civil City Attorney Jeff Key, Robert Peccia & Associates Scott Randall, Robert Peccia & Associates Public Input (three - minute limit): There was no public input. General items: • Laurel Ambulance Service Appointments: Miranda Story and Keriann Nemitz The appointments will be on the May 6 council agenda. Executive Review: • Discussion — Pay off water loan Shirley Ewan explained that the water department plans to apply for a TSEP Grant and a loan in 2016. Shirley stated that the purpose of this item is to ask the council for approval to pay off one of the loans in June, as the water department currently has additional operating cash. By paying off the loan, there would be a high possibility that rates would not need to be increased in 2016 for the sed basin project. Shirley, along with Great West Engineering and the Public Works Director, recommend that the city pay off Loan #WRF- 10209R, which has $247,000 still owing. The loan was taken out in 2009 for one of the phases at the Water Treatment Plant and the loan was refinanced last year at a lower rate of 1.25 percent. The fund has an excess of operating cash that he needs to be moved into capital or used this way. Emelie thanked Shirley for being on top of the city's financial matters. • Resolution — Intent to adopt a Schedule of Fees and Charges Heidi Jensen stated that the council adopts the Schedule of Fees and Charges on a yearly basis. She explained the changes in the schedule, including the addition of fees for non - commercial and Council Workshop Minutes of April 29, 2014 commercial dog kennels, ambulance charges, a floodplain permit, and a fee for review of buildings for lease or rent. The water, wastewater, and solid waste rates will be taken out of the Schedule of Fees and Charges, as they are set by separate resolutions. There will be a reference to see the current resolution. There was a question regarding dog kennels. The Emergency Services Committee has identified some issues in the animal ordinance that need more additional review and will discuss them at upcoming meetings. • Resolution — Adopt Long Range Transportation Plan (Public hearing) Heidi stated that City Planner Monica Plecker, and Scott Randall and Jeff Key from Robert Peccia & Associates attended to give a presentation. Jeff Key stated that he presented the draft plan to the council on March 1 1th, the public comment period began on March 31s and the public comment period ended on April 21S No comments were received until last week when a letter was received from CHS. They met with CHS today to discuss their comments on the draft plan. Jeff stated that Laurel has not had a Transportation Plan for 30 some years. In 1978, there was an attempt at a plan, and that was 36 years ago. The Federal government encourages long range transportation plans. Because Laurel is one of 19 urban areas, the city was eligible for funding, and the city also contributed funding. Jeff stated that this high level plan is a planning document that is a blueprint for what this community should start chipping away at as funds become available. The Montana DOT is spending a fair amount of money in the Laurel community on their miscellaneous projects. The plan has tried to set the framework for the next two decades. As money becomes available and as development happens, the plan includes ideas that are multi - mobile ideas. Jeff explained the public comments received from CHS. There were five categories of comments for which they wanted additional clarification or suggested changes to the plan. There were some general comments about the West Laurel Interchange. These included when it is going to be built, what does it involve, and does it provide a connection to the south of the interstate. This plan discusses all of those items. It discusses the scope of the West Laurel Interchange as MDT is proceeding. The plan makes a recommendation to have a south connection in the future. Fortunately, the interchange is being designed such that it could happen in the future, as the grade of what they are doing does not prohibit a connection to the south. The second comment CHS made was the importance of West Railroad Street. Their trucks, their contractors, and even some of their employees use the facility. They recognize that it really needs to be something different than what it is right now. The plan has identified West Railroad Street as a project sometime in the future. Railroad Street is an urban route, so urban funds could be used for this road, although it will take years to build up enough to do something on the road. That was a concern expressed by CHS. The other three concerns are tied to US 212 directly in front of the refinery. He referred to a picture of the refinery. The message that he took from today's meeting had to do with the mix of traffic on US 212, the speed of the traffic and the need for overall access of the refinery's trucks and deliveries. CHS would like to see a speed reduction in front of the facilities on US 212. Jeff informed CHS about the required process to reduce speeds on roadway facilities. The process starts with the County 2 Council Workshop Minutes of April 29, 2014 Commission writing a letter to the MDT District Administrator in Billings or the Montana Transportation Commission requesting a reduction in speed and that a speed study be undertaken. When that letter is received, it raises the issue to the MDT Program and Speed Study considering it. The next issue was the intersection of US 212 and Bernhardt Road, which is just south of the refinery property. CHS is in the process of adjusting how their trucks are delivering and how their facilities are moving across the street and they see Bernhardt Road as being more important to them. CHS has put some money into some facilities on the back side on the east. Jeff stated that trucks have different operating characteristics than cars, as it takes trucks longer to accelerate, longer to decelerate, and they have different turning maneuvers. The request with that intersection is that someday they would like a traffic signal contemplated for that intersection. A traffic signal has to meet traffic signal warrants. One of nine warrants has to be met before it is even considered. Jeff stated that consideration of signalization at this intersection as traffic changes or as warrants are met could be an addition to the plan. It puts the commitment on MDT to do a traffic signal warrant analysis there every two or three years. The last item was a concept of Bernhardt Road and a south frontage road. Jeff is not sure how Robert Peccia & Associates feels about this concept. The concept is planning land use in connectivity with roadways so they actually make sense and work together. The concept that was brought up in today's meeting was, if Bernhardt Road became a more pronounced access point and this roadway got improved a little bit, could there ever be a frontage road situation out here that would continue a mile or two down the roadway. The roadway is in various states of disrepair. Jeff is not sure that analysis would support the concept of recommending a two mile south frontage road. Jeff stated that the first four of the five things that CHS brought out are fairly clear, but the fifth item about the frontage road is not so clear. The letter from CHS could be slipped into the document as public comment received on the draft or it could be separate for the file. Jeff stated that they have worked on this document for twelve months and they think it is good for the Laurel community. If the city or MDT ever contemplates a roadway project, the transportation plan will provide more weight for federal funding programs. There was discussion regarding the need to update the plan every ten years, using the plan to support requests for grants, the credibility and momentum provided as a result of having the Long Range Transportation Plan, possible expansion of CHS Refinery, and MDT's review of the administrative draft and the public draft of the plan. MDT was a funding partner for the development of the Long Range Transportation Plan. Mayor Mace thanked Jeff for the presentation. • Presentation on Riverside Park buildings Heidi gave a PowerPoint presentation regarding the buildings in Riverside Park. A copy of the presentation is attached to these minutes. Following the presentation, there was council discussion regarding future use of the camping sites, the needed repairs of the buildings, the need to get estimates for roof replacement, the rent charged with the leases, the intentions of the clubs to lease the restored buildings, the current process for payment 3 Council Workshop Minutes of April 29, 2014 for use of the shelters in the city parks, the possibility of future flooding in Riverside Park, and the need for a set of rules to govern all of the city's buildings. Emelie asked for further discussion regarding restoration of the buildings, estimates for roof repairs, and repair of the waterline to the park at the next council workshop. • Council Issues: o City Attorney — Public hearing process Sam Painter spoke regarding the general rules for a public hearing and conducting a public hearing. A copy of the information is attached to these council workshop minutes. Sam explained a change to the format of the public hearing. In the past, the Mayor would introduce the item, ask the staff for comment, staff would present their introductions and presentations, and then the applicant would introduce themselves and provide testimony. He supports the notion that it is better to open the public hearing sooner rather than later. He has advised staff of the procedure that the Mayor would introduce the item, open the public hearing, ask staff to present the item, and then hear the public comments. A public hearing is different than an item that the council is making a decision on under Scheduled Matters. For a resolution, the process has been that a council member makes a motion to approve the resolution, it would be seconded, and then there is council discussion. When discussion is concluded, the question is called and the vote is taken. A public hearing is intended to allow the public the time and ability to provide testimony, written evidence and their point of view on a specific subject. It is the public's time to provide the council a record, and that record is supposed to be what the council makes its decision based upon. In some recent council minutes, there was a lot of council discussion during the public hearing. If a decision is challenged in court, the court would review the public record in the minutes to see what the council based its decision on. Sam emphasized the need for a clear record of who is testifying in the council minutes. He urged the council to sit back and listen to the testimony when the public is here to testify, as that is the basis of the council's decisions. When the record is closed, all evidence stops for the council. Until the decision is made, the council should not listen to any more evidence, no more testimony, no more phone calls, and no more letters. The decision is based on the record, which is the best way the attorney can defend the city if a decision is ever challenged. The council holds public hearings for ordinances, and often the public does not attend. Sam stated the importance of the council sitting back and listening during public hearings in order to have a clear record when the contentious issues arise and the public attends. It is important to give the citizens the opportunity to tell the city council what they think, and the city council needs to listen and let the record get made. After the record is closed and the item comes up for council consideration under Scheduled Matters, the council can discuss the issue and have council debate. Under Montana law, the public has the right to observe the deliberations of the decision makers. The council cannot make a decision during the public hearing because the record is still being made. It is important to fully develop the record, close it and then make the decision when it comes up on the agenda, usually under Scheduled Matters. Sam explained one change to the public hearing process. Typically, during a public hearing, citizens ask questions regarding an issue. In the past, those questions went unanswered until the next meeting or so. Staff has proposed that they jot down the questions and answer them for the record at the end of the public testimony. This process is more defensible because it is conclusive rather than 4 Council Workshop Minutes of April 29, 2014 exclusive. Questions will be answered by staff at the public hearing so everyone knows and can read it in the minutes. Mayor Mace asked if questions and statements should still be directed to the Mayor. Sam stated that the Mayor is the chair of the public hearing and everything must run through the chair, including the public comments, any council questions, and responses from the star If the council has a question, they should write it down or direct it to the Mayor so he can ask for clarification from staff. Council discussion should not be mixed into the public hearing, as it is just for evidence by the citizens and the staff position. There was a question regarding the council member asking the public questions when they are speaking, or if the council members just should not talk to each other during the public hearing. Sam stated that, during a public hearing, the key word is "hearing ". It is important for the council to sit back and listen and it is not the time to debate with the citizens. It is their opportunity and right to provide their testimony to the council. He mentioned that the testimony should be relevant to the issue, or the chairman should stop them from speaking. If numerous citizens state the same thing, the chairman should state so and ask if someone has something different to present. If a citizen has a written document, the chairman should ask the citizen if he /she would like to submit the document as part of the final record. Any letters or documents received after the record is closed cannot be part of the public record or considered as evidence by the council. Sam reiterated that the best practice is to listen to the public and then have the council debate later. There was discussion regarding the appropriate time for the council to discuss items. Under Scheduled Matters, a council member motions to approve the item, followed by public comment and council discussion. There was further discussion regarding the council's options and procedure to suspend the rules and delay a vote on an issue to a specific date. Sam encouraged the council to contact him or Heidi with any questions. o LMC 2.10.030 D — Quorum (Bruce McGee) Bruce stated that LMC defines a majority and a supermajority vote, which can make a difference in how a vote of the council determines something. He wondered if the council wanted to change the ordinance or keep it the same, at least understanding the rule better now than before. Sam suggested the need to go through the city code and identify when the super majority vote is required and cross reference that with Montana Code to determine if they could or could not be changed, because sometimes state law requires the supermajority. He also suggested the need for staff to inform the Mayor and council when a supermajority vote is required. Mayor Mace stated the importance of council members informing him when they cannot attend a meeting. Sam will prepare some information for the council. o Loophole in permits /variance process (Bruce McGee) 5 Council Workshop Minutes of April 29, 2014 Bruce suggested the need to change the permits and variances in which the due process could be denied because people did not follow the need to get permits and ask for a variance until after construction. He thought that could be satisfied with an addition to the ordinance stating that "if you construct without a permit or without a variance, you cannot double back to the City - County Planning Board and the city council to request a variance" in order to emphasize that the process needed to be followed. Sam prepared a one -page summary of zoning variances and perceived loopholes, a copy of which is attached. He stated that the request has some merit. Saying that there should be no opportunity to apply for a variance if you have already broken the law is a harsh remedy, but it's an absolute remedy that probably has to be considered. Sam stated that variances are the exception to zoning. Variances are not something that gets approved every time an applicant has a problem with the zoning. They are exceptions and are extremely hard to get. The Laurel Code is very clear that the Zoning Commission cannot even entertain variances unless they can satisfy the first three criteria, as shown on the summary page. If the first three criteria are all satisfied, then the applicant has to satisfy the next seven elements. Every one of the elements has to apply and if one is missing, the variance is denied. If a variance issue were to go to court and the variance was approved without meeting one or two criteria, the judge would look at the criteria and the evidence and send it back saying an error was made and the variance was not granted. Sam stated that it is important for everyone to realize that variances are not the rule, they are the exception and they are very hard to get. He will get the Planning Board on board with addressing every element and sticking to the law. Heidi asked Sam if the staff should review and revise the two -step process into a streamlined one -step process and also include Council Member McGee's idea to not allow a variance after the fact. Sam stated that the two -step process is very strange. The three elements come from case law developed by the Supreme Court. The other seven elements come out of what he considers cooking down the ordinance or the state code. Other communities combine them into one list, which is a uniform way of doing it. Sam agreed that staff should propose some changes and the absolute ban. He emphasized that, if a person is entitled to a variance and they can prove it, they have a process to get one and an appeal process if a variance is denied. There was discussion regarding the information presented to the council from the City- County Planning Board, the need for a clear cut answer as to how the Planning Board satisfied each of the individual criteria, and the staff report that is included in the minutes. Sam stated that the Planning Board minutes should include documentation of the testimony received during a public hearing and the staff report that provides the evidence and some recommendations. Typically, there would be some language that the applicant cannot satisfy some criteria, which should be a red flag to the council. The law says the applicant has to satisfy all seven criteria in order to meet the burden for a variance. Sam again stated that variances are not the rule, they are the exception to the zoning law and they are hard to get. Sam and Heidi will work on this item. o Insurance Committee (Tom Nelson) 6 Council Workshop Minutes of April 29, 2014 Tom spoke regarding the Benefits Committee and the way it is currently laid out. He suggested that the CAO should be the chair, as it should be somebody who is knowledgeable about the city's insurance and how it works. Heidi explained that the resolution for the Insurance Committee was drafted before the city had a CAO position. She stated the need for somebody to chair this group that can keep the group together. The committee is for the betterment of the employees to make sure that the insurance offered is fair and equitable. The chair needs to be someone who can put the items on the agenda, who can schedule the meetings, and who is available to talk to the insurance vendors. The benefits coordinator needs to be involved in this committee as she is administering the benefits. Heidi stated the need to change the resolution to more accurately reflect the current employees in order to make the committee work better. She offered to revise the resolution to accurately reflect the needs of the city at this time, as directed by the mayor. Tom and Doug asked for review of the structure of the Insurance Committee. Sam and Heidi will work on this issue. o Lease Task Force update There was no further discussion. o Update on 2011 Yellowstone River flooding event Heidi stated that FEMA is conducting the environmental assessment review at this time. Other items • Resolution — Contract with Sanderson Stewart for a TIFD Development Strategy Plan Heidi asked Monica to present a resolution for a contract with Sanderson Stewart for the development of a Strategic Plan in the Tax Increment Finance District. Monica stated that she and Heidi have been busy helping LURA in the last few months and feel that the group is making strides. The TIF District has a sunset date of 2022, so it is important that the city maximize what is done. In the past, LURA has dabbled in some small grants for facade improvements and technical assistance, but there is more that LURA can be doing to maximize the dollars that they are capturing. Just because the TIFD sunsets in 2022, it does not mean that it has to. One way to keep TIF Districts going is to have bondable projects. Heidi and Monica cannot serve at the leisure of LURA, as they have other jobs. At the direction of the LURA board, they recently put out an RFP twice and had five firms submit proposals. The proposals were reviewed by Heidi Jensen, Judy Goldsby, the chairman of LURA, Steve Arveschough, Big Sky EDA, Luke Wallawander, Beartooth RC &D and Steve Zeier, who is working on behalf of the TIF District. Through that process, it was clear that Sanderson Stewart had a lot to offer the TIF District. The scope of work is highlighted in the contract provided. The TIF District is looking for suggested projects that would benefit the TIF District. Questions include: Do we need to invest in underground projects? Do we need to add storm water in some places? Do we need to focus on wayfmding signage to make sure that people are coming under the underpass as well as Southeast 4th Street? This also includes learning what types of businesses are most effective with the vacant properties that are currently available in the TIF District. What businesses are most likely to succeed 7 Council Workshop Minutes of April 29, 2014 there, based on the characteristics of the property and the TIF District? This information is needed in order to keep the TIFD going. The total amount of the contract is $82,730. Beartooth RC &D helped the city get a $26,000 grant through the Big Sky Trust Fund, which will brings down the TIFD dollars toward the project. The TIF District has money to contribute to this project. The completion date for the project is October 30, 2014. Sanderson Stewart is ready to start the project. Staff is not looking for multi - million dollar projects, but is looking for projects that can benefit the TIF District in the best way to make it more alive and vibrant. Heidi stated that, once the plan is developed and has been vetted by her and Monica, it will be a good measuring stick that can be used for the city's contracted Economic Development Coordinator. His job is to implement the plan and to see success. With that contract coming up for review every year and the council needing to see some sort of bondable project if the TIF District is to continue, Heidi stated that this is the achievable goal and the standard to which the city can hold the Economic Development Coordinator. It provides another measuring tool to make sure that the TIFD stays on track, that the Coordinator stays on track, and that the LURA board keeps moving in the right direction. Monica mentioned that LURA substantially paid down a debt last year and the money that is coming in annually needs to be used for projects in the district. There was discussion regarding the cost for the proposed one -time contract, the goals that the plan should provide for the TIF District, the need for direction for the LURA board, the ongoing involvement from the Planner, the CAO and the Economic Development Coordinator, the composition of property owners and business people that serve as volunteers on the LURA board, and the need for some substantial projects in the TIF District. Review of draft council agenda for May 6, 2014 • Poppy Day Proclamation — May 23, 2014 • Public hearings: o Long Range Transportation Plan o Ordinance No. 014 -01: Fence heights Attendance at the May 6, 2014 council meeting Council Member Nelson will not attend. Announcements There were none. The council workshop adjourned at 8:40 p.m. Respectfully submitted, Cindy Allen Council Secretary NOTE: This meeting is open to the public. This meeting is for information and discussion of the Council for the listed workshop agenda items. 8 I. Public Hearing Governance: General Rules: A. Public hearing is the chance to provide members of the public their opportunity to provide comment, testimony or written evidence regarding an item of City business. B. Public hearing is conducted to create a clear record of evidence on which the City Council bases their subsequent or upcoming decision upon. If an appeal or lawsuit results, the minutes and record of the public hearing must be absolutely clear as to the evidence gathered as part of the record. C. Since a Court will be reviewing the record, clear and effective minutes are an absolute necessity. Therefore it is imperative that the Mayor conduct the meeting in an orderly fashion. Any questions or comments during the hearing must be directed to the Mayor as the Chair of the meeting. D. The City Council's purpose during a public hearing is to "listen to the testimony and evidence" provided during the hearing. E. There is no council discussion during the public hearing. Council discussion is an important part of the public's right to observe the deliberations of the City Council prior to a decision. The City Council must hold their comment and debate since no decision is made during the public hearing. F. After the public hearing is closed, no new evidence shall be heard, considered or entertained by the Council prior to its discussion and decision. II. Conducting the Public Hearing: A. Mayor: Announce the subject or item of business scheduled for the public hearing: Example: "This is the time and place set for the public hearing on the proposed changes to City Ordinance 014 -100: Business Licenses" B. Mayor: I am opening the public hearing and would first ask Staff to present the item prior to hearing the public comments. C. Staff presents the item to the public and council through a short and concise oral report. If there is a written staff report it is also submitted as part of the public hearing record. D. Mayor: The Applicant (if applicable) may introduce him /her self and summarize the issue or action sought. E. Mayor: I will open the floor for public comment: (read rules if desired) 4.u> lk Rivor LAW O F F I C E PLL.P. Majel M. Russell • Sam S. Painter • Georgette H. Boggio MEMORANDUM To: Mayor Mace and Council From: Sam S. Painter, Civil City Attorney Date: April 29, 2014 Re: Zoning Variances and perceived loopholes in zoning The Laurel Municipal Code (LMC) provides the authority and standards for granting a variance. A variance is defined as "permission to depart from the literal requirements of a zoning ordinance by virtue of a unique hardship do to special circumstances regarding a person's property." In Laurel, the City- County Planning Board is authorized to act as the City's Zoning Commission. The Zoning Commission must conduct a public hearing and make a recommendation regarding the approval /disapproval of the requested variance to the City Council. The City Council has reserved the final approval / disapproval authority to itself pursuant to LMC Chapter § 17.60.10 and 17.60.020(A). The LMC authorizes the Zoning Commission to recommend approving a variance only if the variance: 1. Is not contrary to the public interest where due to special conditions, a literal enforcement of the zoning ordinance would result in an unnecessary hardship; 2. The spirit of the zoning ordinance is observed; and 3. Substantial justice done. If the above three factors are not met, then the Zoning Commission may not recommend the approval of a variance. However, if the variance is able to meet or satisfy the three standards, the Zoning Commission shall not recommend approval to the City Council unless the Zoning Commission finds: 1. The denial would constitute an unnecessary and unjust invasion of the right of property; 2. The grant relates to a condition or situation special and peculiar to the applicant; 3. The basis is something more than a mere financial loss to the owner; 4. The hardship was created by someone other than the owner; 5. The variance would be within the spirit, intent, purpose and general plan of this title; 6. The variance would not affect adversely or injure or result in injustice to others; and 7. Ordinarily unless the applicant owned the property prior to the enactment of this title or amendment. Again, a variance may not be recommended for approval by the Zoning Commission or approved by the City Council if all seven factors are not satisfied. 145 Grand Avenue, Suite #5 • P.O. Box 928 • Billings, Montana 59103 Telephone: (406) 259 -8611 • Facsimile: (406) 259 -3251 elkriverlaw @elkriverlaw.com www.elkriverlaw.com 1 111D NNE . . vi m tat 0 I 11, 1 , . . , il l imi• • rim Eml II (D ,, • ,,,,,...,. ,,,,, . „, ..„... „,.. . .....,..... , 1:1) ---i I , t ;'. ff , . int . . .. Nis I 1 3 c - r _ .,i, u , c=, - ..., • co E . ii ... CU limiiiiiiii . 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