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HomeMy Public PortalAboutMinutes_CCSpecialMeeting_06292010SPECIAL CITY COUNCIL MEETING JUNE 29, 2010, 7:00 P.M. PUBLIC HEARING; MCARTHUR CONDITIONAL USE PERMIT. IONA COMMUNITY CENTER PRESENT: Mayor Brad Andersen, Council President Jane Shaw, Council member Bruce Case, Council member Dan Gubler, City Clerk Robyn Keyes. VISITORS: Dennis McArthur, Linda McArthur, Adrian Beazer, Kathy McNamara, Terry McNamara, Stephanie Rockwood, Sherisse Pettingill, Bart Stoddard. Mayor Andersen welcomed everyone and went over the procedure for the hearing. Mayor Andersen read the letter of recommendation from Attorney Storer. The letter stated the nature of the hearing, which was to re -open the hearing as a limited discussion for Council member Gubler to disclose the nature of his conversations with the McNamara's and others regarding the McArthur's hearing, for the McArthur's to rebut, for the Council to accept the findings of facts, and to reissue a decision. The Attorney also stated that the general purpose of any hearing was to listen to the evidence presented at the hearing then decide if the applicant had satisfied the prerequisites of the ordinance based upon the evidence presented at the hearing. The Attorney said if a Council member undertakes gathering of evidence, visit with witnesses, or make inspections at a sight outside of the public hearing; such extra judicial investigation was a clear violation of the applicant's procedural due process rights since the applicant would not have opportunity to present testimony in opposition of the extra judicial investigation. Attorney Storer said Council member Gubler's failure to disclose the substance of his extra judicial investigation on record would constitute a violation of Mr. McArthur's procedural due process rights, and in turn constitutes a basis for the Council to set aside its decision. Attorney Storer said Council member Gubler's extra judicial investigations with the McNamara's and others did not necessarily demonstrate bias, but rather demonstrated Council member Gubler's lack of awareness regarding the quasi-judicial nature of the hearing. Mayor Andersen said as per Attorney Storer's recommendation, the Council had made a motion to set aside the previous decision, re -open the hearing, and reissue a decision. Mayor Andersen turned the time over to Council Member Gubler. Council member Gubler said he had several discussions with the McNamara's because they are friends; however the only question the McNamara's ever asked him was regarding past minutes. Council member Gubler said he did not give the minutes to the McNamara's and provided no further information outside what was in the minutes. Council member Gubler said the discussions he had with the McNamara's were based solely upon the minutes. Council member Gubler said when Mr. McNamara asked him what his feelings were toward the issue, the Council member said he told Mr. McNamara 1 that he would not discuss how he was going to vote or the reasoning at that point. Council member Gubler said that to assume that he was influenced by the McNamara's was unsubstantial. Council member Gubler said regarding disclosure; he said he was in a meeting with Scott Long and Mr. Long asked the Council member when the date of the McArthur hearing was, so he told him. Council member Gubler said he supposed that discussion was also breaking a law. Mayor Andersen said that if that was the extent of the conversation with Mr. Long, there was not a violation. Council member Gubler said that was the gist of all of the conversations he had with anyone in the town. Council member Gubler turned the time over to Mr. McArthur. Mr. McArthur said that all of the Council members had received a letter from the attorney one Friday and early on the following Monday the McNamara's were in the City office asking for a copy of the letter. Mr. McArthur asked Council member Gubler if he had informed the McNamara's of the letter from the attorney. Council member Gubler said he did not know about a letter and he did not know about the appeal until he received a phone call from the City Attorney. Mr. McArthur said in the entire information Council member Gubler received... Council member Gubler interrupted Mr. McArthur and asked him to explain what information Mr. McArthur was referring to. Mr. McArthur said he was reasonably certain that the McNamara's had talked to Council member Gubler about their (the McNamara's) beliefs and concerns regarding the hearing. Mr. McArthur asked Council member Gubler if that was an accurate assumption, Council member Gubler said it was. Mr. McArthur asked Council member Gubler if he had agreed with any of the McNamara's concerns. Council member Gubler said for Mr. McArthur to ask the McNamara's if he (Council member Gubler) had commented to them regarding their concerns and comments. Council member Gubler said there were things in the past that he had agreed with the McNamara's. Mr. McArthur asked Council member Gubler if he had ever agreed with them in current conversations, Council member Gubler said he had not. Council member Gubler said he did not talk politics with Mr. McNamara. Mr. McArthur asked Council member Gubler if he was aware of the letter before hand that the McNamara's had presented to the Council. Council member Gubler said he did not believe the McNamara's wrote the letter. Mr. McArthur said he had asked Mrs. McNamara where she had received the information from the letter and he said she had replied that she got the information from talking to Mrs. McArthur. Mrs. McNamara said she did not write the letter and did not know who wrote the letter. 2 Mr. McArthur said the letter was erroneous, slanderous, and did not contain facts. Mr. McArthur thanked the Council for their time and said the process had been difficult on many people. Mr. McArthur said he believed that the controversy over his conditional use permit request was based on misunderstandings. He said he had never tried to hide what he had done. Mr. McArthur said many people in Iona had built homes with second kitchens in the basement and outside access, and what difference did it make. Mr. McArthur said he was confused as to the reason why those that were concerned about his property were not adjacent neighbors to him, and that all of his neighbors that lived 300 feet from him have signed more than once their approval of his conditional use permit. Mr. McArthur said he sensed a double standard when some people that were protesting his conditional use permit were also present at another hearing and they stated that it was not anyone's business what happened in their backyards. Mr. McArthur said he found it ironic that the person that protested his conditional use permit because they were against high density housing was the same former Council member that was in favor of allowing a contractor to develop an entire field of 1/7 acre lots. Mr. McArthur noted another conditional use permit granted by the Council that allowed two separate and unrelated families to share a house, and that property did not meet the code requirement. Mr. McArthur said the Council didn't worry about those issues because the neighbors for the property did not mind that the people were renting their home, and they weren't hurting anyone. Mr. McArthur said his application met all of the requirements for a conditional use permit. Mr. McArthur asked the Council to think about what would happen to the all of the people in the town that were renting a home and had a room mate to share the expenses. Mr. McArthur said none of the neighbors were complaining, and sharing a home with one or two other individuals did not impact the neighborhood. Mr. McArthur asked the Council to think about how they would define family and that there were all sorts of reasons people shared a house. Mr. McArthur said the long-term master plan the City created years ago stated the City needed to create more available housing for young people just getting started. Mr. McArthur said his home and property met the requirements for a conditional use permit allowed by City Code, and his neighbors were in support of his request. Mr. McArthur said the issue had been sidetracked by other people. Mr. McArthur turned the time back over to the Council. Mayor Andersen asked Mrs. McNamara if she had anything to do with the anonymous letter written in December. Mrs. McNamara said she did not. Mayor Andersen said he would like to give Mrs. McNamara the opportunity to address some statements that involved her. The Mayor asked Mrs. McNamara if she had called any of Mr. McArthur's neighbors regarding the issue. Mrs. McNamara said she did not but, that some of the neighbors called her instead. 3 Mr. McArthur said he had specific neighbors that said Mrs. McNamara had called them. Council member Gubler said the McNamara's have a right to call everyone in town if they choose to regarding this issue. Council member Gubler said Mr. McArthur had been accusing him and the McNamara's of all sorts of unfounded things. Council member Gubler also said that it was Mr. McArthur that kept bringing up the past and had accused the Council member of attending a Planning and Zoning meeting that the Mayor told him to attend. Council member Gubler said he sat at the back of the room during the public hearing and did not participate and he was only at the meeting to discuss the Comprehensive Plan with Planning and Zoning. Mayor Andersen said the Comprehensive Plan was finished before Council member Gubler took office. The Mayor also said he had written a letter informing the Council members they should not attend Planning and Zoning meeting during public hearings. The Mayor said he did not ask Council member Gubler to go to the hearing on his behalf. Council member Gubler said he had witnesses that have heard the Mayor ask Council member Gubler to attend the Planning and Zoning meetings. Council member Gubler said the meeting he attended was for the impact area, not the Comprehensive Plan. Mayor Andersen said that was correct, Council member Gubler was instructed to go to meetings regarding City business and the impact area, but not during public hearings. Mr. McNamara said that Council member Gubler and himself were not plotting against the McArthur's and that he did not go to Council member Gubler for information. Mrs. McNamara said she came to the City office and read on the notice what Mr. McArthur was requesting, that is how she received her information. Mayor Andersen said the notice did not say anything about a letter from the Attorney. Mrs. McNamara said the notice said a letter was requested by the Attorney, so she asked for the letter. Council member Gubler said this entire procedure has been about assumptions. Mayor Andersen said he could see how assumptions could be made. Council member Gubler asked the Mayor if he (the Mayor) had talked with Mr. McArthur regarding the issue. Mayor Andersen said he had, and he had also talked with all of the other Council members as well regarding this issue and City matters. Adrian Beazer accused the Mayor of violating open meeting laws, and asked why Mr. McNamara and Council member Gubler could not talk about the issue and the Mayor and a Council member could. Mayor Andersen said the nature of the conversation was different. Mayor Andersen said Council members and Planning and Zoning members can talk to each other one on one but, if more than two elected officials talk it would be 4 subject to the open meeting law. The Mayor said good judgment must be used when discussing matters with each other and the public. Mr. McArthur asked the Council to look at his request and base the decision upon whether he met the conditions and the fact that his adjacent neighbors were in support of his request. Mayor Andersen closed the public portion of the hearing and opened discussion for the Council. Council President Shaw explained that the hearing was very emotionally charged and she believed no one had set out to intentionally hurt someone else however, emotions were overrunning the facts. President Shaw said she still stood behind her original decision that the McArthur's have met the conditional as described in the Code Book and they should be granted their request. President Shaw said the Code allowed for what the McArthur's were asking, and by attaching a conditional use permit the City would have more authority in regulating the use, otherwise the City would need to change the Code. Council member Case said he had several concerns, that the people needed to be treated fairly, and the Council couldn't say yes to one person and no to another for the same issue. Council member Case said he realized that a conditional use permit could not set precedence, and cited an occasion where other people were misusing their conditional use permit, but there was no enforcement. Council member Case said if the City denied the McArthur's then the City would need to enforce the rule with everyone throughout the community. Council member Case said he was on the Council to represent the people, and at the last McArthur hearing there were many people in attendance that were against the McArthur's request for different reasons such as, high density housing and compromising the integrity of the neighborhood. Council member Case said some of the people in attendance were former Council members, and many of them cited the reason they were against the request was because they were against high density housing however, none of those former Council members had been in attendance for any of the other conditional use hearings since they left office, furthermore, they were the same Council that approved 1/7 acre housing on 50th; so why was it that so many of them happened to be present for the McArthur hearing. Council member Case said he was not making any accusations, he just found the situation curious. Council member Case said during the last McArthur hearing he voted in a way that he thought he was doing what the majority of the people present wanted. Council member Case said two weeks after the McArthur hearing, there was another hearing for regulating vehicles and the majority f the people in attendance of that hearing were saying that it was not any one else's business what they did on their own property. Many of those people were the same people against the McArthur's doing what they wanted. Council member Case said he realized that he might have made a mistake with his McArthur decision because of the sharp contrast between hearings. 5 Council member Gubler said the City worked hard on the Comprehensive Plan stating that high density housing was not part of the City plan. Council member Gubler said Council member McArthur worked on and approved the Comprehensive Plan. Council member Gubler said 11-8-1 (A-7) in the Code Book stated conditional use permits must be cohesive with the Comprehensive Plan. The Councilman said just because Mr. McArthur met the conditions for a conditional use permit didn't mean the City had to give him the permit. Council member Gubler said his objection to Mr. McArthur's request was because it wasn't following the Comprehensive Plan, not because he had people living in his house. Council member Gubler said he agreed that people had a right to do whatever they wanted with their property to a certain point, but he didn't want to see everyone begin to rent their homes and have the area become run down. Council member Gubler said a conditional use permit did not set precedence, but it did create a perception, and if the City gave one person permission to do something that perception would go out to other people. Council member Case said he agreed with the sacredness of the R-1 zone but, the reason the City issued Conditional Use Permits was to regulate the activity within the zone. The City was not required to grant all requests, but in the McArthur's case all of his adjacent neighbors were alright with his request, he was not negatively affecting anyone, and the people against the request did not live next to him. Mayor Andersen said the person that created the Comprehensive Plan also said it was important to encourage high density and diverse housing in the original core area of the town to help keep the area alive as new growth drew people away from the downtown area. Mayor Andersen said he and the Council were doing the best they could, they were not professional attorneys or politicians, but they had the City's best interest at heart. The Mayor said if he didn't know something, he would admit to not having the answer and would seek advice from professionals. The Mayor said he wanted on record that on March 24, 2008 he asked the City's attorney if people could have other people living in their home that were not family members. The attorney responded that such activity was allowed depending on the City's zoning ordinance and definition of family. The attorney said even the Supreme Court did not want to define family and in many cases the Fair Housing Act allowed such activity. Council member Case disclosed that Lynn McKinlay had approached him to discuss the hearing because Mr. McKinlay said he would not be present for the hearing. Council member Case said he recommended Mr. McKinlay contact the City Clerk, or write a letter to be presented at the hearing. Mayor Andersen said the best thing to do when people want to talk about these types of issues is politely tell them you cannot discuss the matter with them. 6 Council member Shaw said to tell the people if they have something to say they can be heard at the public hearing. Council member Gubler said the Attorney told him there only needed to be a revote if enough evidence was brought forward to constitute one. Mayor Andersen read the letter from the Attorney that stated at the conclusion of the limited hearing; the Council should then deliberate again and reissue its decision. Council member Gubler disagreed with the intent of the Attorney and said the Attorney told him they did not need to reissue a decision. Mayor Andersen said if the Council wanted to uphold its original decision it would vote the same as the original decision, but if the Council believed there was enough evidence to change its vote, they had the opportunity to do so. Council member Gubler said Mr. McArthur's letter specifically requested that Council member Gubler recuse himself. Council member Gubler said the attorney said he did not have to do so therefore, Council member Gubler said he would not be recused. Council member Case asked if his decision needed to be based solely upon the new evidence heard. Mayor Andersen then called Attorney Storer on the phone and the Attorney said to reissue a decision and base that decision on last month's hearing, this month's hearing, and the new evidence. Mayor Andersen entertained a motion from the Council. Council member Gubler made a motion to uphold the original decision from the last hearing. No one seconded the motion, so the motion was declared dead. Council President Shaw made a motion to approve the McArthur's conditional use permit. Council member Case seconded the motion. Mayor Andersen asked if there were any further discussions. Council member Case said he did not see any conditions applied for the permit. Council member Case said he remembered an adjacent neighbor stating that they did not want the McArthur's to leave the home and rent both the upstairs and downstairs to other people. The Council deliberated the conditions for the permit. 7 Mr. McNamara asked if he or the general public could have a say in setting the conditions. Mayor Andersen said in a conditional use permit the adjacent home owners could have a say in setting the conditions. Mayor Andersen entertained a new motion from the Council. Council President Shaw made a motion to approve the McArthur's permit with the following conditions; if the McArthur's leave the home, they cannot rent both the upstairs and the basement, they cannot rent to more than 2 adults and 2 children and a time, they must pay two water bills, and the permit must be reviewed annually. Council member Case seconded the motion. Roll call as follows: AYE: Council President Shaw, Council member Case NAY: Council member Gubler Motion carried 2:1 Request approved. Hearing closed 8:30 p.m. I / Q /l � � i I CrV 1� 8 PUBLIC NOTICE The Iona City Council has scheduled a public hearing on the evening of June 29, 2010 at 7:00 P.M. at the Iona Community Center, which is located at 3548 North Main Street, Iona, Idaho. The reason for the hearing is to open a limited discussion for a fellow Council member to disclose the nature and purpose of discussing public hearing issues with the general public during the hearing process, for the Council to accept the Finding of Facts for McArthur's Conditional Use request, and reissue a decision. If you have any comments concerning this request, they will be considered at the public hearing. Comments may be made in writing, but must be received by the City Clerk seven (7) days before the public hearing. Dated this 8th day of June, 2010 Respectfully yours, r Rob yi eyes, City Clerk Publish: Fifteen (15) days prior to hearing