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HomeMy WebLinkAbout2006-09-05city council minutesBOOK 47 REGULAR MEETING SEPTEMBER 5, 2006 7:00 P.M. The Meeting was called to order by Mayor Nancolas. PAGE 141 Mayor Nancolas welcomed everyone and asked Pastor Don Renschler from Canyon Hill Church of the Nazarene to lead in prayer. Mayor Nancolas asked that everyone remain standing for the Pledge of Allegiance to the Flag. The Roll of the City Council was called with the following members present: Blacker, Oates, Hopper, Callsen, Dakan and Wells. Absent: none. SPECIAL PRESENTATIONS None. ADDITIONS OR DELETIONS TO THE AGENDA MOVED by Hopper, SECONDED by Oates to amend the agenda by adding Item #15 under the Consent Calendar to approve resolution authorizing the execution of an Option to Purchase Right -of -Way Agreement with MLCB Investments, L.P., Alfred W. Wing, and West American Finance Corporation. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED AUDIENCE PARTICIPATION None. CONSENT CALENDAR: The Mayor presented the following items on the Consent Calendar for approval by Members of the City Council: 1. Approve acceptance of the minutes from the meeting of the Caldwell Industrial Airport Commission held on August 3, 2006, the Caldwell Golf Board held on August 16, 2006, the Caldwell Planning & Zoning Commission held on May 9, 2006, the Hearing Examiner held on May 16, 2006, and the Caldwell Housing Authority held on July 18, 2006; 2. Accept the resignation of Scotty Crandlemire from the Caldwell Industrial Airport Commission; 3. Approve Order of Decision for Case No. SUB- 96(1)F -03 (Quail Ridge No. 1); 4. Approve Order of Decision for Case No. SUB- 84(3)F -03 (Apple Creek No. 3); 5. Approve Order of Decision for Case No. SUB- 94(3)F -03 (Four Seasons No. 3); 6. Approve Order of Decision for Case No. SUB- 94(4)F -03 (Four Seasons No. 4); 7. Approve Resolution No. 120 -06 accepting a temporary well easement from Howell- Murdoch Development Corporation for Sienna Hills Subdivision; 8. Approve Resolution No. 121 -06 accepting a temporary well flushing discharge easement from Howell- Murdoch Development Corporation for Sienna Hills Subdivision; 9. Approve Resolution No. 122 -06 accepting a temporary ingress - egress easement from Howell- Murdoch Development Corporation for Sienna Hills Subdivision; 10. Approve Resolution No. 123 -06 accepting dedication of sewer main, water main, storm drain, and street lights in Apple Creek Subdivision No. 2; 11. Approve Resolution No. 124 -06 accepting dedication of sewer main, water main, storm drain, and street lights in Windsor Creek Subdivision No. #1; 12. Approve Resolution No. 125 -06 authorizing the destruction of semi - permanent and temporary public records; 13. Approve and authorize the City Engineer to execute a letter of intent to condemn property with regards to the Franklin Sewer Project; 14. Approve the Award of Bid to BDP Industries in the amount of $119,530 for acquiring a 1.5 meter gravity belt thickener at the Wastewater Treatment Plant; 15. Approve Resolution No. 126 -06 authorizing the execution of an Option to Purchase Right -of -Way Agreement with MLCB Investments, L.P., Alfred W. Wing, and West American Finance Corporation. MOVED by Oates, SECONDED by Blacker to approve the Consent Calendar as amended. Roll call vote. Those voting yes: Oates, Hopper, Callsen, Dakan, Wells, and Blacker. Those voting no: none. Absent and /or not voting: none MOTION CARRIED OLD BUSINESS (CONSIDER BILL NO. 43 [ORDINANCE NO. 26181 THE APPROPRIATION ORDINANCE FOR FISCAL YEAR 2006 -2007 WITH THE REQUEST TO WAIVE THE THREE READING PROCESS AND PASS ON THE FIRST READING BY TITLE ONLY) The Mayor introduced this bill and read Bill No. 43 (Ordinance No. 2618) by title only: BOOK 47 PAGE 142 AN ORDINANCE ENTITLED APPROPRIATION ORDINANCE FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2006 APPROPRIATING THE SUM OF $54,082,362 TO DEFRAY THE EXPENSE AND LIABILITIES OF THE CITY OF CALDWELL, IDAHO, FOR SAID FISCAL YEAR, AUTHORIZING A LEVY OF SUFFICIENT TAX UPON THE TAXABLE PROPERTY AND SPECIFYING THE OBJECTS AND PURPOSES FOR WHICH SAID APPROPRIATION IS MADE. MOVED by Hopper, SECONDED by Blacker to suspend the rules and consider Bill No. 43 on its first reading Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED MOVED by Hopper, SECONDED by Dakan to sponsor Bill No. 43 and move for its passage. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (CONSIDER BILL NO. 27 [ORDINANCE NO. 26021 REGARDING THE ANNEXATION OF JORDAN MEADOWS WITH A REQUEST TO WAIVE THE THREE READING PROCESS AND PASS ON THE FIRST READING) The Mayor introduced this bill and read Bill No. 27 (Ordinance No. 2602) by title only: AN ORDINANCE DETERMINING THAT CERTAIN LAND LAYS CONTIGUOUS TO THE CITY LIMITS OF THE CITY OF CALDWELL, COUNTY OF CANYON, STATE OF IDAHO, AND THAT SAID LANDS SHOULD BE ANNEXED TO THE CITY OF CALDWELL, IDAHO, AS PART OF THE R -1 [SINGLE- FAMILY RESIDENTIAL] ZONE; DECLARING SAID LANDS BY PROPER LEGAL DESCRIPTION AS DESCRIBED BELOW TO BE A PART OF THE CITY OF CALDWELL, CANYON COUNTY, IDAHO; REPEALING ALL ORDINANCES, RESOLUTIONS, ORDERS OR PARTS THEREOF IN CONFLICT HEREWITH; DIRECTING THE CITY ENGINEER AND COMMUNITY DEVELOPMENT DIRECTOR TO ADD SAID PROPERTY TO THE OFFICIAL MAPS OF THE CITY OF CALDWELL, IDAHO; AND DIRECTING THE CLERK OF THE CITY OF CALDWELL TO FILE A CERTIFIED COPY OF THE ORDINANCE AND MAP OF THE AREA TO BE ANNEXED WITH CANYON COUNTY, STATE OF IDAHO AND THE IDAHO STATE TAX COMMISSION, PURSUANT TO IDAHO CODE, SECTION 63 -2219. MOVED by Hopper, SECONDED by Blacker to suspend the rules and consider Bill No. 27 on its first reading Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED MOVED by Hopper, SECONDED by Blacker to sponsor Bill No. 27 and move for its passage. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (CONSIDER BILL NO. 42 [ORDINANCE NO. 26171 TO VACATE A PORTION OF SOUTH MICHIGAN AVENUE AND CEDAR STREET WITH THE REQUEST TO WAIVE THE THREE READING PROCESS AND PASS ON THE FIRST READING) The Mayor introduced this bill and read Bill No. 42 (Ordinance No. 2617) by title only: AN ORDINANCE RECITING PETITION FOR VACATION AND RECITING APPROPRIATE NOTICE WAS GIVEN OF PUBLIC HEARING; DETERMINING THAT VACATION OF SAID PUBLIC RIGHT -OF -WAYS IN THE CITY OF CALDWELL, CANYON COUNTY, IDAHO, DESCRIBED BELOW, SHALL BE MADE; AND DETERMINING THAT VACATION OF SAID FOLLOWING RIGHT -OF -WAYS ARE IN THE BEST PUBLIC INTEREST FOR THE CITY OF CALDWELL, CANYON COUNTY, IDAHO. MOVED by Hopper, SECONDED by Dakan to waive the rules and consider Bill No. 42 on its first reading. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Blacker, and Oates. Those voting no: none. Absent and/or not voting: Wells. MOTION CARRIED MOVED by Hopper, SECONDED by Dakan to sponsor Bill No. 42 and move for its passage. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Blacker and Oates. Those voting no: none. Absent and/or not voting: Wells. MOTION CARRIED NEW BUSINESS (MAYOR'S RCOMMENDATION FOR APPOINTMENT OF THE PLANNING & ZONING DIRECTOR FOR THE 2006 CALENDAR YEAR) The Mayor presented Brian Billingsley for the appointment of the Planning & Zoning Director. His appointment is effective August 21, 2006 through December 31, 2006. BOOK 47 PAGE 143 MOVED by Hopper, SECONDED by Blacker to approve the appointment of Brian Billingsley as the Planning & Zoning Director for the remainder of this year. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and not voting: none. MOTION CARRIED (CONSIDER DECLARATION OF INTENT, PURSUANT TO IDAHO CODE 50 -1402, TO OFFER FOR SALE REAL PROPERTY LOCATED SOUTH OF PURPLE SAGE GOLF COURSE AND DECLARE A VALUE OR MINIMUM PRICE FOR REAL PROPERTY) E1Jay Waite, City Finance Director, commented on the game of golf in the Treasure Valley and the current condition of Purple Sage Golf Course. He updated Council on the financial status of the golf course and indicated that the Caldwell Golf Board has brought this request forward for consideration. The proceeds from the land sale will be returned directly to the course to reduce the debt, to purchase new equipment, to create an endowment fund to sustain golf course improvements long term, and leave the course competitive with reasonable rates as it was intended when it was first put into place. He requested that the property be declared as surplus property and authorize an appraisal to determine its value. Mark Hilty, City Attorney, advised Council on the process of declaring this property as surplus and proceeding with the sale of property. The Mayor gave a brief history behind this request and the intended benefits of selling this property. MOVED by Dakan, SECONDED by Oates to authorize staff to assess the fair market value of this property and to bring assessment forward for Council consideration at a public hearing. Roll call vote. Those voting yes: Dakan, Wells, Blacker, Oates, Hopper, and Callsen. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (CONSIDER ACCEPTANCE OF NEW FEES AND INCREASED FEES IN EXCESS OF 105% OF FEES LAST COLLECTED PURSUANT TO IDAHO CODE 63 -1311A AND SET A PUBLIC HEARING FOR SEPTEMBER 18, 2006 DURING THE REGULAR CITY COUNCIL MEETING) E1Jay Waite, 411 Blaine, City Finance Director, presented the schedule for new fees and increased fees for fiscal year 2006 -2007. MOVED by Oates, SECONDED by Blacker to set the Public Hearing for September 18, 2006 during the Regular City Council Meeting to consider increased fees in excess of 105% of fees last collected pursuant to Idaho Code 63- 1311A. Roll call vote. Those voting yes: Oates, Hopper, Callsen, Dakan, Wells, and Blacker. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (CONSIDER AMENDMENTS TO APPROPRIATION ORDINANCE NO. 2561 AND SET A PUBLIC HEARING FOR SEPTEMBER 18, 2006 DURING THE REGULAR CITY COUNCIL MEETING) E1Jay Waite, 411 Blaine, City Finance Director, presented the amendments to Appropriation Ordinance No. 2561. He noted that in the general fund, it is proposed that Council increase expenditures $1,234,000 and he outlined items that are included in this amount. The amended budget is $52,252,203 in expenditures as compared to $51,018,203. MOVED by Hopper, SECONDED by Blacker to set the Public Hearing for September 18, 2006 to consider amendments to Appropriation Ordinance No. 2561. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (PROTEST HEARING: REGARDING FORMATION OF LID 06 -01 TO CONSIDER BILL NO. 44 [ORDINANCE NO. 26191 TO CREATE LID 06 -01 FOR THE CONSTRUCTION OF SANITARY SEWER IMPROVEMENTS FOR OAK STREET WITH A REQUEST TO WAIVE THE THREE READING PROCESS, PASS ON THE FIRST READING AND APPROVE FOR PUBLICATION) The Mayor declared the public hearing open. Gordon Law, City Engineer at 621 Cleveland Blvd., gave the staff report and purpose for the formation of this LID. He noted that there would be a total of seven participants, of those seven —five are in favor. Gordon submitted a protest letter from David Root of Root Rents. The Mayor read protest letter from David Root of Root Rents, 2602 Cleveland Blvd., Caldwell, dated August 12, 2006 into the record. Councilman Wells asked Mr. Law that if Mr. Root is stating that his system is working fine, then why does the City want to change the system. Mr. Law stated that any parcels that could ultimately benefit by the improvements have been included in this submittal to Council. Mr. Law indicated that the basis of the petitioner's request is that the line has failed or is in the process of failing. BOOK 47 PAGE 144 Doug Dodson, 2123 E. Oak Street, stated that he is one of the participants of this LID. He stated that he is already on the system and does not understand why he is being asked to pay hook -up fees. Mr. Law replied that Mr. Dodson is correct and he is not required to pay this fee. Odrico Loya, 2203 E. Oak Street, asked if there were an early payment penalty. Mr. Law replied that there is the ability to pay offthe LID early. However, there is an early payment penalty, which is one year's interest penalty. The Mayor labeled Mr. Root's letter as CC -1000. MOVED by Hopper, SECONDED by Blacker to close the public testimony portion of the hearing. Those voting yes: unanimous. MOTION CARRIED The Mayor entered into evidence: the ordinance, the sign up sheets, and CC -1000 (a protest letter from David Root) MOVED by Hopper, SECONDED by Blacker to approve the evidence list as presented. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED MOVED by Hopper, SECONDED by Blacker to close the public hearing. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED The Mayor read Bill No. 44 by title only: AN ORDINANCE CREATING LOCAL IMPROVEMENT DISTRICT NO. 06 -01 OF THE CITY OF CALDWELL, IDAHO; DESCRIBING THE IMPROVEMENTS TO BE MADE HEREIN, DESCRIBING AND SETTING FORTH THE BOUNDARIES OF SAID DISTRICT; PROVIDING FOR THE IMPROVEMENTS TO BE MADE THEREIN; APPOINTING AN ENGINEER; AUTHORIZING THE ADVERTISING FOR BIDS FOR SAID WORK; PROVIDING FOR THE ASSESSMENT OF COSTS AND EXPENSES OF SAID IMPROVEMENTS AGAINST THE PROPERTY WITHIN THE DISTRICT BENEFITED THEREBY AND THE METHOD OF ASSESSMENTS; PROVIDING FOR THE ISSUANCE OF LOCAL IMPROVEMENT DISTRICT BONDS AND WARRANTS; PROVIDING SEVERABILITY; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE OF THIS ORDINANCE. MOVED by Hopper, SECONDED by Blacker to waive the three reading process and consider Bill No. 44 on its first reading. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED MOVED by Hopper, SECONDED by Blacker to sponsor Bill No. 44 and move for its passage. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (PUBLIC HEARING [QUASI - JUDICIAL]: CASE NO. ANN - 125 -06, A REQUEST BY SALLIE PALLERIA AND BRETT ANTHON FOR ANNEXATION OF .33 ACRES LOCATED AT 1005 W. LINDEN WITH AN R -1 [ SINGLE - FAMILY RESIDENTIAL] ZONING) The Mayor explained the quasi - judicial process and asked those that were signed up to speak to stand and be sworn in by the City Clerk. David Richey, Planner at 621 Cleveland Blvd., acknowledged being sworn in and gave the staff report Councilman Hopper asked Mr. Richey if the property has curb, gutter and sidewalk on it. Mr. Richey replied that it does not at this time. Councilman Wells pointed out that in the staff report under streets — it states that construction of curb, gutter and sidewalk improvements will be required in accordance with City standards. Councilman Hopper asked Mark Hilty, City Attorney, if the City could enforce a curb, gutter and sidewalk requirement at this point unless it was a condition of the annexation. Mr. Hilty responded that this was correct. Councilman Hopper continued that this condition would have to be added above and beyond this general statement in the staff report. Mr. Hilty stated that this was correct. Anne Marie Skinner, 2310 Wood Springs, acknowledged being sworn in and stated that she concurred with the staff report. She indicated that, as previously discussed by Councilman Hopper, there would be no curb, gutter or sidewalk required on this piece of property because the building permit was already issued under Canyon County and this was also discussed at length with the Hearing Examiner. Councilman Hopper stated that certainly as a condition of the annexation, the City could require that this condition be there. Hopper asked that if this were a requirement, would she still want to connect to City services. Ms. Skinner replied BOOK 47 PAGE 145 no, that this would not make any sense. She stated that nothing on either side of this property has curb, gutter or sidewalk and nor in the foreseeable future would. Councilman Hopper added that this particular piece of property was presented to the City Council a number of years ago, along with the adjacent properties as a subdivision. City Council at that time insisted that the development concur with City standards, which included curb, gutter and sidewalk. When the applicant was told that this was a requirement that the City was not willing to waive, the applicant stated that she would develop underneath the County's standards. He stated that this is clearly an attempt to take this property and bring it back into City services without the requirement of curb, gutter and sidewalk. Councilman Callsen stated that he agrees with Councilman Hopper. Councilman Dakan stated that the City struggles with a number of streets in the city that don't have paving or don't have curb, gutter and sidewalk and the City struggles with trying to bring them into compliance. The determination was made a long time ago that the purpose of curb and gutter was to maintain the integrity of the roadway. MOVED by Hopper, SECONDED by Blacker to close the public testimony. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED EVIDENCE LIST: The Mayor presented the Evidence List: sign up sheet, staff report, and the request for annexation included in the staff report. MOVED by Hopper, SECONDED Blacker to approve the evidence list as presented. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED COMPREHENSIVE PLAN ANALYSIS: MOVED by Hopper, SECONDED by Blacker to adopt the Comprehensive Plan Analysis as put forth in the staff report. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED FINDINGS OF FACT: MOVED by Hopper, SECONDED by Blacker to accept the facts as outlined in the staff report, the public testimony given this evening, the evidence list that has been approved, and noting that this property has, in a previous life, come to Council for approval for annexation and at that time the applicant was not in agreement with the condition of curb, gutter, and sidewalk and withdrew the application from the City as a result. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED CONCLUSIONS OF LAW: MOVED by Hopper, SECONDED by Blacker that Council has the authority to hear this request and order that it be approved or denied. The hearing was legal noticed and posted and was held under the requirements of Idaho codes and City ordinances. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED ORDER OF DECISION: MOVED by Hopper, SECONDED by Callsen that based on the Findings of Fact and Conclusions of Law, the Caldwell City Council orders that Case No. ANN- 125 -06, a request by Sallie Palleria to annex a .33 -acre parcel of land located at 1005 W. Linden into the City of Caldwell with R -1 (Single - Family Residential) zoning is hereby approved with the condition that the property construct curb, gutter, and sidewalk along the street borders. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, and Blacker. Those voting no: Wells and Oates. Absent and/or not voting: none. MOTION CARRIED MOVED by Hopper, SECONDED Blacker to close the public hearing. Those voting yes: unanimous MOTION CARRIED (PUBLIC HEARING [LEGISLATIVE]: CASE NO. OA- 76 -06, A REQUEST BY THE CALDWELL ENGINEERING DEPARTMENT TO ADOPT A STORM WATER MANAGEMENT MANUAL TO REPLACE THE CURRENT MANUAL DATED MAY 2006) BOOK 47 PAGE 146 David Richey, Planner at 621 Cleveland Blvd., introduced this item and relayed that the one condition that the Planning & Zoning Commission placed on this as a recommendation was that the water used for testing the storm retention ponds be taken from irrigation facilities or from some other source rather than potable water. Gordon Law, City Engineer at 621 Cleveland Blvd., gave a brief history behind this request. The only difference between this document and the one that was adopted in May is a request by the Planning & Zoning Commission that potable water not be used for proof testing of the ponds. The basis for this is concern about the waste of potable water. The Engineering Department has concerns about this limitation as there are seasons of the year in which proof - testing water is available out of the ditches and seasons of the year when it is not. A typical size of a pond to be tested is approximately 10,000 cubic feet and the dollar value of the water for testing this pond would be approximately $72. Mr. Law requested that Council revisit this requirement. There was discussion about potable and non - potable water and the proposed changes to the manual. MOVED by Hopper, SECONDED by Oates to adopt the change to the manual, but adjust the language as it reads in 8.2 of the staff report that storm water holding areas should be tested with irrigation surface water when available. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED MOVED by Oates, SECONDED Hopper to close the public hearing. Those voting yes: unanimous. MOTION CARRIED (PUBLIC HEARING [QUASI - JUDICIAL]: CASE NO. ANN - 123 -06 AND SUB /PUD- 152P -06, A REQUEST BY ONE LP LLC FOR ANNEXATION OF 21.12 ACRES LOCATED AT 1420 E. USTICK ROAD WITH A C -2 [COMMUNITY COMMERCIAL] AND R -1 [SINGLE - FAMILY RESIDENTIAL] ZONING, A DEVELOPMENT AGREEMENT, AND PRELIMINARY PLAT AND PLANNED UNIT DEVELOPMENT APPROVAL OF RIM ROCK SUBDIVISION) David Richey, Planner at 621 Cleveland Blvd., acknowledged being sworn in and gave the staff report Ron Sargent, 1883 N. Wildwood Street, Boise, acknowledged being sworn in and spoke in support of this development. He referred to the staff report, page 3, section 2.7.4 — staff recommends a stub street to the east; however, on page 6, public works proposes a stub street to the west. The applicant proposes only one stub street to the south for safety of the senior citizens in this development. Sargent continued: The staff report requests that the applicant pay 24% of the off -site signal light (page 7). The applicant requests that they get a dollar amount for this. Lastly, the staff report calls for more open space. As there are primarily going to be seniors, staff felt that this was adequate amount of open space if it was primarily designed for seniors. Councilman Blacker asked Mr. Sargent about two -story homes and asked if he would have a problem with a condition that would restrict him from building two -story homes. Mr. Sargent replied that that would be fine. Dan Sosnovske, 3220 State Street, Salem, OR, acknowledged being sworn in and spoke in support of this development MOVED by Dakan, SECONDED by Hopper to close the public testimony portion of this hearing. Those voting yes: unanimous. EVIDENCE LIST MOTION CARRIED The Mayor presented the Evidence List: staff report, sign up sheets, the preliminary plat, and the large exhibit of Rim Rock Subdivision. MOVED by Hopper, SECONDED by Blacker to approve the evidence list as presented. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED COMPREHENSIVE PLAN ANALYSIS FOR ANN- 123 -06: MOVED by Hopper, SECONDED by Blacker to adopt the Comprehensive Plan Analysis as outlined in the staff report Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED FINDINGS OF FACT FOR ANN- 123 -06: MOVED by Hopper, SECONDED by Blacker to accept the facts as outlined in the staff report, the general testimony that was given, the evidence list that was approved, and note that there was no objection to the application. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED BOOK 47 CONCLUSIONS OF LAW FOR ANN- 123 -06: PAGE 147 MOVED by Hopper, SECONDED by Blacker that the Caldwell City Council has the authority to hear this case and order that it be approved or denied. The public notice requirements were met and the hearing was conducted within the guidelines of applicable Idaho codes and City ordinances. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED ORDER OF DECISION FOR ANN- 123 -06: MOVED by Hopper, SECONDED by Callsen that based on the Findings of Fact and Conclusions of Law, the Caldwell City Council orders that Case No. ANN- 123 -06, a request by One LP, LLC for annexation of 21.12 acres into the City of Caldwell with 10.29 acres containing R -1 zoning and 10.83 acres containing C -2 zoning designation and ratification of a development agreement spelling out the terms and arrangements of the rezone, be approved with the conditions as outlined in the staff report. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED COMPREHENSIVE PLAN ANALYSIS FOR SUB /PUD- 152P -06: MOVED by Hopper, SECONDED by Blacker to adopt the Comprehensive Plan Analysis as found in the staff report at Roman Numeral V. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED FINDINGS OF FACT FOR SUB /PUD- 152P -06: MOVED by Hopper, SECONDED by Blacker to accept the facts as outlined in the staff report, the public testimony given this evening, the evidence list that was approved, and noting that there was no objection to the preliminary plat or the planned unit development application. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED CONCLUSIONS OF LAW FOR SUB /PUD- 152P -06: MOVED by Hopper, SECONDED by Blacker that the Caldwell City Council has the authority to hear this case and order that it be approved or denied. The public notice requirements were met and the hearing was conducted within the guidelines of applicable Idaho codes and City ordinances. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED ORDER OF DECISION FOR SUB/PUD- 1 52P-06: MOVED by Hopper, SECONDED by Oates that based on the Findings of Fact and Conclusions of Law, the Caldwell City Council hereby orders that Case No. SUB /PUD- 152P -06, a request by One LP, LLC for a preliminary plat and planned unit development approval of Rim Rock Subdivision, consisting of 52 single family residential lots, a 208 -unit senior housing complex, 16 commercial lots, and 7 common area lots is hereby approved with the conditions listed in Section 12 of the staff report, striking condition 12.30 and indicate that the stub streets to the west and to the south indicated in the preliminary plat are adequate. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED MOVED by Hopper, SECONDED by Oates to close the public hearing. Those voting yes: unanimous. MOTION CARRIED The Mayor declared a 5- minute recess. (PUBLIC HEARING [QUASI - JUDICIAL]: CASE NO. ANN - 122 -06 AND SUB- 151P -06, A REQUEST BY LANDMARK ENGINEERING & PLANNING FOR ANNEXATION OF 126.96 ACRES LOCATED SOUTH OF MARBLE FRONT ROAD BETWEEN KCID ROAD AND SMEED PARKWAY WITH AN R -1 [SINGLE - FAMILY RESIDENTIAL] ZONING, A COMPREHENSIVE PLAN MAP AMENDMENT, A DEVELOPMENT AGREEMENT, AND PRELIMINARY PLAT APPROVAL FOR MARBLE CREEK SUBDIVISION) David Richey, Planner at 621 Cleveland Blvd., acknowledged being sworn in and gave the staff report. Wendy Kirkpatrick, 104 9"' Avenue S., Nampa, acknowledged being sworn in and spoke in support of this development. She noted that there were a couple of issues in the staff report that she wanted to touch on. The first has to do with Dew Drop Way and the extension of it. The Planning & Zoning Commission did not recommend that this be extended. They are recommending, and Planning & Zoning has recommended, that we just retain one access point across the slough. The BOOK 47 PAGE 148 second issue is the canal. They are providing a standard 8 -foot pathway on one side of the canal and on the other side of the canal they are providing another pathway to the slough crossing. Kirkpatrick continued: The third issue is the dedication of the right -of -way on Smeed and Marble Front There are a couple of reasons why it is not feasible to provide this right -of -way or to do roadway improvements. The first reason is that a chunk of the property is not the parent parcel for this development. There is no connection between this piece of property and the development of this property. They have made an agreement with one of the neighbors that they would provide the additional right -of -way so that they can do the full road improvements along KCID. She noted that there was a home adjacent to Smeed that has an existing garage, which is actually located in the right -of -way. The do not have the ability to get this right -of -way. Kirkpatrick continued: She noted parts of the staff report that addressed these issues. The first issue addressing Dew Drop Way is section 2.74 on page 3. The issue addressing the out parcels and the right -of -way dedication is section 2.75 on page 4. There is also a general condition addressing right -of -way, which would need to be modified, that is condition 12.13. Also, condition 12.30 addresses the pathways on both sides of Solomon and where the City is requesting that they do a full pathway on the west side and a partial pathway on the east side. She also noted that they were recommending not connecting the roadway as stated in section 12.32. In section 12.34, she wanted clarification on the affidavit for the parcels. They are willing to go in and have an agreement with the property owners of the parcel on KCID, but on the northwest corner it is virtually impossible for them to go in and take the additional right -or -way. Kevin Harris, 1059 E. Iron Eagle Drive, Eagle, declined to speak at this time Kirby Clendenon, 4520 Marble Front Road, acknowledged being sworn in and raised concerns about this development as it abuts his property and about the development of the road next to this property. Jerry Rose, 4511 Marble Front Road, acknowledged being sworn in and raised concerns about the holding ponds being a habitat for West Nile Virus. Gordon Law, City Engineer, spoke about the retention ponds and the new storm water manual that was adopted tonight. Mr. Law indicated that Smeed Parkway would be paved by the developer. Don Clendenon, 4500 Marble Front Road, acknowledged being sworn in and asked about the improvements to Marble Front Road and Smeed Lane. David Weaver, 4825 Marble Front Road, acknowledged being swom in and asked about the second exit onto Marble Front Road. He asked if Smeed Parkway was going to be paved. He is concerned about the increased traffic and indicated that a signal light would be needed at the intersection of Hwy 20 -26 and KCID. Ms. Kirkpatrick gave the rebuttal. They will do single story homes on the lots that are next to Mr. Clendenon's property and asked to reserve the right to build bonus rooms on the single story homes. The developers would potentially be willing to do road improvements if the right -of -way was dedicated by the property owners. It is difficult because the Clendenon's have existing structures, a shop, tennis courts, and a property owner that would be requiring the developer to purchase this right -of -way. Ms. Kirkpatrick addressed the concerns of Mr. Rose and indicated that this is a changing area and a developing area With regards to the ponds, they will be designed so that they are approved by the Engineering Department. She indicated that there will be improvements to Smeed Road and they are proposing that they not provide a connection where Smeed Road would connect with Marble Front. Ms. Kirkpatrick addressed the concerns of Mr. Weaver about the stub streets onto Marble Front Road. It is their recommendation that they not build this stub street onto Marble Front Road. Mark Hilty, City Attorney, addressed issues that were raised concerning the out parcel and dedicated right -of -way. He agreed that the City cannot impose a condition on the development that is out of the developer's control, but then to go ahead and annex the property and approve it on those conditions. He suggested that before this property is annexed, Council needs to find out if the right -of -way is something that the parties can work out between them and if it is not, then Council will need to make a potentially difficult decision on whether this property is appropriate for annexation. The Mayor noted that in testimony tonight, he heard both a willingness from Mr. Kirby Clendenon as well as Mr. Don Clendenon that they would be willing to enter into discussions about this piece of property. He suggested that Council continue this until these two parties can get together to discuss this and to see if there is something that can be worked out. Councilman Hopper and Gordon Law discussed the connection of Dew Drop Lane, Lasser Lane, and Borcher Lane. Ms. Kirkpatrick stated that if the Clendenon's were willing to dedicate 5 feet of right -of -way on Marble and Smeed, that would enable them to complete the road sections and they would put in the road if the Clendenon's would, free of charge, dedicate the 5 feet of right -of -way. Ms. Kirkpatrick asked Council if they would give clear direction on the issues that they want resolved. The Mayor indicated that the issues are the improvements along the Clendenon's property on both Smeed and Marble Front Road. The issue of Oasis connecting and the entrance onto Marble Front Road as an access point, where Mr. Weaver has indicated that he does not want this road facing directly into his property. Are there options to move it down or away from his property or does it need to be there at all? There is concern about Dew Drop Lane and other connections such as Lasser Lane or Borcher Lane. Councilman Hopper raised concerns about pathway requirements for Solomon Drain. BOOK 47 PAGE 149 MOVED by Oates, SECONDED by Hopper to continue this public hearing to a time and date certain, which would be September 18, 2006 at 7:00 p.m. at the Regular City Council Meeting. Those voting yes: unanimous. MOTION CARRIED (PUBLIC HEARING [QUASI - JUDICIAL]: CASE NO. SUP- 270A -06, AN APPEAL BY JERRY AND TERRI TIMMONS REGARDING THE HEARING EXAMINER'S APPROVAL OF A SPECIAL USE PERMIT ALLOWING THE CITY OF CALDWELL TO CREATE A PUBLIC PARK IN A C -2 [COMMUNITY COMMERCIAL] ZONE LOCATED AT THE CORNER OF KIMBALL AVENUE AND ARTHUR STREET) Mark Hilty, City Attorney, 1303 12"' Avenue Road, Nampa, acknowledged being swom in and introduced this item. He gave a background on this site and explained the appeal process. The specific intent when the City acquired this site was to remove the dangerous condition, to remove the blight, and to help further the efforts that have been undertaken to revitalize the downtown. The initial plan is to develop a small park, sometimes called a pocket park, at this location with new sidewalks, landscaping, park benches, etc. Hilty continued: There have been concerns that have been raised that are relevant to a land use decision and there have been a lot of concerns that have been raised that are not relevant to a land use decision. He noted that this matter is the subject of pending litigation. He listed issues related specifically to this appeal request and discussed the relevance and /or lack of relevance of issues raised by the Timmons. He emphasized that this appeal is based on a land use decision. Councilman Wells asked Mr. Hilty if he had a visual of what the park is expected to look like. Mr. Hilty presented a site plan and the Mayor labeled it as CC -1000. There was discussion about sidewalks and easements at this site. Ron McWilliams, 110 N. 9"' Street, acknowledged being sworn in and stated that he agrees with Mr. Hilty that regardless of the decision that Council makes tonight, this case remains in litigation. He asked that Council reserve their decision on this until the questions are answered in the proper forum. He noted that prior to the backfill and prior to the water coming into the basement and expanding the mud, there were no cracks. There were small, tiny cracks in the Timmons' wall, but they were of no consequence. Now, after this has happened, these cracks have significantly expanded and water pours at times into this basement. He stated that the irrigation requirements to water the landscaping of a park would do further damage to the Timmons' building. McWilliams continued: In terms of opinions that have criticized the design of this backfill, he has an opinion from an engineer with Tru- Engineering that was submitted to the Hearing Examiner. He recollected that the written opinion stated that the design was faulty and that it does cause lateral pressure on the Timmons' wall, which could ultimately result in a wall failure. He asked Council to reserve judgment on this because the Council does not have all the necessary information. Councilman Hopper asked Mr. McWilliams for the last date when water was pouring into the Timmons' building. Mr. McWilliams stated that off the top of his head he could not give him an exact date, but he could tell him that it was sometime this last spring when there was significant rain. Essentially, whenever there is any significant amount of moisture introduced onto this ground, you can see it, water just drips through the cracks and accumulates on the floor causing other problems. Councilman Wells asked Mr. McWilliams if anything would change if this were to wait for a court hearing. Mr. McWilliams replied that aside from the fact that the dirt is already in the hole and damages have probably already been incurred, nothing would change. Just letting this property sit over the winter would not damage the City. Dick Winder, 2810 Morning Mist Lane, acknowledged being sworn in and asked that Council consider turning this proposal down as there are valid reasons to do so. As early as June 2005, American Geotechnics stated in a letter that the City of Caldwell was going to build a park on this site. In July 2005, the Caldwell Economic Development Council wrote a letter to Mr. C's stating that the City of Caldwell was going to build a park at this site. For more than a year the City has known that a park was going to go here and that a special use permit was required. The City's code, section 10- 02 -02, which is the land use schedule, requires that a special use permit be acquired for all other public uses. He believes that the City has been in violation of the ordinance every since the project started. He would like to see Council deny the request, establish some reasonable standards for development for a private owner to go into this lot, and then to sell the lot to a private owner so that the City can accomplish what the Economic Development Department is trying to do with the downtown. Jerry Timmons, 22243 Rio Vista, acknowledged being sworn in and spoke about the history of this lot and the attempts of filling in the hole at this location. He stated that he met with City staff and he wanted a concrete retaining wall poured up against his building. He can't see where pouring another retaining wall, right flat up against his building, is going to damage his wall anymore than the water and moisture that it has in it now. The Mayor responded to Mr. Timmons that they went back out to try and find the best mechanism to protect his property and to try to fill in this area so there was no blight. One of the concerns raised in the engineering study was that it was not only lateral pressure that had to be taken into consideration, it was concern over continued settling of his building. The concrete retaining wall was heavy enough that there were fears expressed in this engineering study that a concrete retaining wall would actually cause damage to his building by settling. The action that the City took was far more expensive than putting in a retaining wall. Mr. Timmons stated that he understood it was just the opposite. Terri Timmons, 22243 Rio Vista, acknowledged being sworn in and asked Council if they had thought about what will happen if a sprinkler line breaks. She stated that if a sprinkler pipe breaks, then it would be her that discovers it after it has done damage to her property. She asked if Council were ready to pass this tonight with all of these legalities that do stand in the way. BOOK 47 PAGE 150 Jason Timmons, 3711 Brennan Drive, Nampa, acknowledged being sworn in and stated that he has nothing further to add. He stated that he is in agreement with the comments made tonight. He referred to the property line and asked that if there were any question at all, should it be the Timmons' responsibility of the City's responsibility to find out where the property line exists. Mr. Hilty replied that it is the Timmons that have asserted that the property line exists one inch outside the wall; however, there has been no proof of this. Legally, it would be the Timmons' burden to prove this. Mr. McWilliams stated that this is being addressed in litigation and he would speak with Jason Timmons if he has further questions regarding this. Mark Hilty gave the rebuttal and a summary of the testimony given. He indicated that the issues and concerns brought up tonight would be there regardless of what Council does with the site. It is the City's position, based on good engineering evidence that the water conditions at this site are going to be dealt with based upon the construction dynamics. There was the opinion that was offered by the Timmons' engineer. This engineer is now going to go before the Board of Engineers on whether that was an appropriate opinion to issue. The City has constructed the project in a way that was recommended to them by two engineering firms. Mr. Hilty continued: He stated that he does have the letter that was submitted by Tru- Engineering and he will enter it as an exhibit. He noted that Mr. McWilliams indicated in his testimony that the letter calls into question the lateral loading. The letter does not; it talks only about the water. The Mayor labeled this letter as CC -1001. Mr. Hilty continued: The one thing that is clear at the site is that the Timmons' walls on the north and south are not retaining walls. Wherever the requirement for a retaining wall comes from, it did not apply to the Timmons. The City initially looked at a reinforced concrete retaining wall at this location. It is tremendously heavy and it creates dramatic vertical loading. All of the engineers that have looked at this have said that this would accelerate the settling and this would cause the Timmons to be damaged. This was all explained to the Timmons. They were told that the City had considered the retaining wall and that it would not work. The City showed the Timmons the foam block design that was being recommended by the City's project engineers. The Timmons did not like this design and said they wanted the retaining wall. The City offered to put the retaining wall in if the Timmons would indemnify the City from the damage that it would cause. The Timmons refused to do this. The Timmons were insisting upon construction dynamics that the City knew would cause a problem at the site; yet they were unwilling to indemnify the City. Mr. Hilty continued: What this case really hinges on tonight is whether or not Council feels that the use of the property for a park is different from the concerns that the Timmons have raised in the litigation. All of the same concerns that the Timmons are voicing tonight would exist with virtually any use of the property and, in fact, exist with no use of the property. Mr. Hilty submitted the American Geotechnics response letter and a letter dated February 24, 2003, which is a result of Steve Hasson's inspection of the property that shows some of the cracking and water damage that existed almost two years prior to the time that the City commenced the construction. The Mayor labeled the letter from American Geotechnics as CC -1002 and the letter from Steve Hasson as CC -1003. Councilman Oates asked Mr. Hilty that if Council takes action, as he has recommended tonight, what exposure does Council face should the court rule against the City and in favor of the Timmons in their litigation. Mr. Hilty stated that there are damages that are alleged more or less as a result of the construction that has occurred. He does not know how the lawsuit changes if the surface is developed into something that looks like a park because the thrust of the case is the negligent construction in design plans. He is not sure that the City's exposure changes at all. The Mayor asked Mr. Hilty that throughout this process has the City asked for his guidance as the City Attorney to make sure that the City follows our own rules and regulations. Mr. Hilty replied yes. The Mayor asked if the City at any time violated any City codes or ordinances in this process. Mr. Hilty replied no, not that he is aware of. The Mayor asked if there were any permit that the City should have sought that the City did not obtain. Mr. Hilty replied no. The Mayor asked if there were any City action that should have been obtained, but did not. Mr. Hilty replied no. Councilman Wells suggested that Council consider not making a decision tonight, but rather be allowed the time to read the information that was provided and make a decision when the time is not as late. Councilman Callsen stated that if nothing is pressing on this, then why is Council making a decision until after this has gone to court. The Mayor replied that the reason this was requested to be moved forward is because of construction season and with all the efforts going on to revitalize downtown, this has been considered an area of blight for eleven to twelve years now. There have been numerous complaints from downtown business owners about the condition of this site. It has been recommended by the City's consultants to make improvements as we try to rejuvenate downtown. It is simply a matter of downtown revitalization and to clean this up and try to catch the construction season or not. MOVED by Hopper, SECONDED by Dakan to close the public testimony Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED EVIDENCE LIST: The Mayor presented the Evidence List: staff report, sign up sheets, CC -1000 (site plan), CC -1001 (letter from Tru- Engineering to Jerry Timmons dated July 19, 2006), CC -1002 (letter from American Geotechnics), and CC-1003 (letter from Steve Hasson). MOVED by Hopper, SECONDED by Dakan to approve the evidence list as described. BOOK 47 PAGE 151 Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED COMPREHENSIVE PLAN ANALYSIS: MOVED by Hopper, SECONDED by Dakan to adopt the comprehensive plan analysis as found in the staff report. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED FINDINGS OF FACT: MOVED by Hopper, SECONDED by Dakan to accept the facts as outlined in the staff report, the public testimony given this evening, and the evidence list that has been approved. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED CONCLUSIONS OF LAW: MOVED by Hopper, SECONDED by Dakan that the Caldwell City Council has the authority to order that this appeal be approved or denied and the special use permit to be approved or denied. The public notice requirements were met and the hearing was conducted within the guidelines of applicable Idaho codes and City ordinances. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED Councilman Oates asked Mr. Hilty about the future development of this property should the City decide to sell it. The Mayor indicated that this is truly intended to be an interim step. It is much better looking with grass and trees with downtown enhancements than it is with a hole in the ground or a piece of dirt. Hopefully, someone will want to build on this piece of property as time moves on. Councilman Wells stated that he needs to review the evidence and he is not sure that he can make an informed decision. The Mayor asked Mr. Hilty if Council could delay a decision. Mr. Hilty replied yes. ORDER OF DECISION: MOVED by Hopper, SECONDED by Oates that this public hearing be continued to a time and date certain, which would be September 18, 2006 during the Regular City Council Meeting. Roll call vote. Those voting yes: Hopper, Callsen, Dakan, Wells, Blacker, and Oates. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (FINANCE AND HUMAN RESOURCE REPORTS) Councilman Callsen reported that the Finance Committee has reviewed current accounts payable in the amount of $1,009,127.21 for the period ending August 30, 2006 and a net payroll in the amount of $221,152.54 for the pay period ending August 19, 2006. MOVED by Callsen, SECONDED by Hopper that accounts payable in the amount of $1,009,127.21 represented by check numbers 37580 through 37885 and the total payroll in the amount of $221,152.54 represented by check numbers 10919 through 10999 and direct deposits be accepted, payments approved, and vouchers filed in the Office of the City Clerk. Roll call vote. Those voting yes: Callsen, Dakan, Wells, Blacker, Oates, and Hopper. Those voting no: none. Absent and /or not voting: none. MOTION CARRIED (COUNCIL COMMENTS) Councilman Hopper reported that on the new park there is a sign that says the park closes at 10:00 p.m. As he envisions a downtown with an active nightlife, he wonders if closing this park at 10:00 p.m. is really a long -term position the City wants to be in. The Mayor indicated that there are residents that are sleeping there overnight and there have been numerous complaints; hence the sign. Councilman Hopper requested an Executive Session tonight. Councilman Blacker suggested that those who have not read the packet on Phase II of Indian Creek to read it. He thinks that Council needs to go back and readdress where the new City Hall is going to go. Councilman Wells requested that maybe sometime in the future there could be a workshop that would deal with out parcels so that Council understands them a little bit better. 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