REGULAR COUNCIL April 17, 2017

Transcription

1 REGULAR COUNCIL Mayor Henry called the meeting to order at 6:30 p.m. Clerk made note that Councilmembers Skaug, Haverfield, Gibbons, Bruner, and Raymond were present. Councilmember Levi was absent. Mayor Henry amended the agenda by adding Findings of Fact, Conclusions of Law Decision and Order Denying Application for Midland and Cherry to unfinished business and by changing the wording for item #35 from utility extensions and connections to sidewalk repairs. MOVED by Haverfield and SECONDED by Raymond to approve the Consent Agenda with the above mentioned amendments; Regular Council Minutes of April 3, 2017, and Special Council meeting Minutes of April 11, 2017; Bicycle and Pedestrian Advisory Committee Minutes; Board of Appraisers Minutes; Airport Commission Minutes of March 14, 2017; Planning & Zoning Commission Minutes; Library Commission Minutes; IT Steering Committee Minutes; department reports, bills paid; The City Council dispenses with the three (3) reading rule of Idaho Code for all ordinances; final and preliminary plat approvals: 1) None; and authorize the following public hearings: 1) Annexation and zoning to RS-6 at the south end of South Florence Street just past East Dakota Avenue for Blake Wolf; Authorization to Proceed with the Bidding Process: 1) Zone C Sewer Rehabilitation FY17; Renewal of Agreements and Authorize the Mayor to Sign: 1) None Monthly Cash Report: 1) None; Resolutions Disposal of Property with Value Under $1,000.00: 1) Disposal of Surplus Property from Central Services; 2) Disposal of Surplus Property for Wastewater; and Licenses: (all licenses subject to police approval): See list; Pawnbrokers None; Used Precious Metals None; Alcohol Tiny s Lounge, th Avenue South, on-premise beer, wine and liquor; Italian ToGo Co, th Avenue South, on-premise beer and wine; Airport Inn, 3111 Garrity Boulevard, on-premise beer and liquor; Brick 29, th Avenue South, on-premise beer, wine and liquor; Denny s #6640, 607 Northside Boulevard, on-premise beer, wine and liquor; Jalapeno s Mexican Restaurant, 1921 Caldwell Boulevard, on-premise beer, wine and liquor; Little Saigon Vietnamese, nd Street South Suite 100, on-premise beer and wine; Monkey Bizness, st Street South, on-premise beer, wine and liquor; Nampa Gusher, 324 Third Street South, off-premise beer and wine; Red Robin America s Gourment, 2222 Cassia Road, onpremise beer, wine and liquor; Smoky Mountain Pizzeria Grill, 2007 North Cassia, on-premise beer, wine and liquor; Walgreens #05648, th Avenue South, off-premise beer and wine; Walgreens #10672, th Avenue Road, off-premise beer and wine; Walgreens #12483, 932 Caldwell Boulevard, off-premise beer and wine; El Rodeo Restaurant, 910 Third Street South, on-premise beer; Miscellaneous Items: 1) None; approval of the agenda. Mayor Henry asked for a roll call vote with all Councilmembers present voting YES. Mayor Henry declared the Fire Chief Phil Roberts introduced Deputy Fire Chief Kirk Carpenter. Mayor Henry read the oath of office to Kirk. Chief Roberts said that he is excited to bring Chief Carpenter aboard and move him up the ladder. It was a little over a year ago that he was promoted to Division Chief of training so he has exceeded himself in that capacity and with the opportunity of our department and the opening that came up

2 he has proven himself. One thing, as a Chief that I am looking forward to is proven leadership and stability and integrity, he has seen adversity, it has come against him, and he has handled it with grace and integrity. He has served for many years as a firefighter and also the Airforce and he comes from a firefighter family. Kirks wife Nicole and his children, Josh, Leah, Justin, Jolene and Jacob. Nicole pinned his new badge on him and his mom and dad pinned his new lapel pins on (4 bugles). Kirk thanked his family for the sacrifice in allowing him to do his job. He thanked the chiefs for taking him under their wings and mentoring him. To all the firefighers that in taking this job that in hopes of representing you well. I want to promise you that I will never forget where I came from, I will always have my eyes forward, there will never be a day that when I won t be willing to make a decision, and I hope you will give me the grace to know that you are always at the base of where I am making them from. Public Works Director Michael Fuss presented a staff report to update the council on current projects as follows: Wastewater Program Phase I Upgrades, Project Group A Construction Update City Staff is providing a regular status update of Phase I Upgrades Project Group A as requested by City Council. City staff and the WPMT have been diligently tracking this project since construction started in early June Project Status The project has been under construction for 23 months: Notice to Proceed issued June 2, 2015 The Contract Time Completed is currently at 70% The Contract Work Completed is currently at 81% Key activities and milestones achieved since the update to City Council on February 21, 2017, include: Continued operation of three new Primary Effluent Pumps to support regular operations at the plant Operation of the upgraded Aeration Basin 1 and Aeration Basin 2 system. Continued stabilization of the system is being performed; staff has observed decreased phosphorus concentrations are below interim NPDES permit limits Continued progress to construct Aeration Basin 3. The improved weather conditions since February have allowed concrete pouring at Aeration Basin 3 to resume. Concrete pouring takes place approximately twice per week Page 2

3 Submitted 757 submittals since the Beginning of Project: Technical submittals, as well as information required for compliance to the City s State Revolving Fund (SRF) Loan with the Idaho Department of Environmental Quality (IDEQ), have been received. Staff and the WPMT strive to respond to submittals as quickly as possible. Average response time is currently 18 days Based on the current project schedule, the following is the major work item expected to be completed in the near future: Continued construction of Aeration Basin 3. This work is scheduled to be completed in late 2017 The following photos show the progression of work at the site: Figure 1 Concrete pouring progress for the new Aeration Basin 3 Figure 1 Concrete pouring progress for the new Aeration Basin 3 Page 3

4 Figure 2 New Aeration Basin 3 wall construction Financial Report The following table shows current financials for Phase I Upgrades Project Group A: Original Budget Current Budget Change Order Rate Spent Percent Spent Project Group A Ewing $12,494,000 $13,008, % $10,508,403 81% Phase I Upgrades $1,500,000 $985,912 N/A N/A N/A Contingency TOTAL $13,994,000 $13,994,000 N/A $10,508,403 75% Wastewater Program Phase I Upgrades, Project Group B Construction Update Progress continues for Phase I Upgrades at the Nampa Wastewater Treatment Plant (WWTP) to achieve the interim phosphorus limit in the City s new National Pollutant Page 4

5 Discharge Elimination System (NPDES) permit. Project Group B, the second of three projects for Phase I Upgrades, will construct a new, Solids Handling Facility at the WWTP. The bid period for Project Group B commenced on February 27, Staff and the Wastewater Program Management Team (WPMT) conducted two site tours for prospective contractors on March 15 and March 29. A total of 11 general contractors and 2 subcontractors attended. Attached is a current plan holders list (see Exhibit A). Staff and the WPMT will conduct bid openings on Thursday, April 27, at 2:00 p.m. in Council Chambers at Nampa City Hall. Anticipated award of contract will be recommended to City Council May 15, Construction for Project Group B is expected to begin in early June. Engineering Division Fiscal Year 2017 Project Bidding Second Quarter Report - Tom Points, P.E., City Engineer, Engineering Division, will present the attached Fiscal Year 2017 Project Bidding Second Quarter Report on the day of this staff report (see Exhibit B). Mayor Henry presented a request for the decision to adopt the Northeast Nampa Gateway District Plan. MOVED by Haverfield and SECONDED by Bruner to adopt the plan as presented. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. The Mayor declared the The following Resolution was presented: RESOLUTION PURSUANT TO IDAHO CODE (c) ADOPTING AMENDMENTS TO THE MAP COMPONENT OF THE COMPREHENSIVE PLAN FOR THE CITY OF NAMPA, IDAHO, AN IDAHO MUNICIPAL CORPORATION. MOVED by Haverfield and SECONDED by Raymond to pass the resolution as presented. Mayor Henry asked for a roll call vote with all Councilmembers present voting YES. Mayor Henry declared the resolution passed, numbered it , and directed the clerk to record it as required. Page 5

6 Mayor Henry presented a request to approve the Civic Center contract with Spectra and authorize the Mayor to sign the contract. Tim Savona and Rick Hontz, Regional Vice President from Spectra addressed the Council. Tim wanted to thank everyone for the opportunity. We have been very busy behind the scenes in preparation of the of moving forward. Rick thanked the Mayor and Council for allowing the partnership. Spectra has a lot still to do in Nampa. The Ford Idaho Center is going in the right direction. I have to thank Tim Savona who we brought in as our GM. We are looking forward to the opportunity to continue this and bring it to the Civic Center. This is our sweet spot, this market, this type of facilities, we are looking forward to get going and see a lot of opportunity. MOVED by Skaug and SECONDED by Haverfield to approve and authorize the Mayor to sign the contract with Spectral for the Civic Center. Mayor Henry asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Mayor Henry presented the Findings of Fact, Conclusion of Law Decision and Order Denying the Application for the Midland and Cherry Lane project. City Attorney Mark Hilty presented a staff report explaining that I have encourage Robert and he and I worked together on putting this together. It is a formal findings of fact and conclusions of law and decision where there was an annexation redevelopment deny. Given the size of the opposition and the number of people interested in it, I thought that it was appropriate to do this. It is customized to that issue, and recites the facts, the findings and the conclusions. MOVED by Skaug and SECONDED by Haverfield to accept the Findings of Fact, Conclusion of Law Decision and Order Denying the Application for the Midland and Cherry Lane project. Mayor Henry asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Mayor Henry presented a request for authorization to hire a building inspector supervisor. Building and Safety Director Patrick Sullivan presented a staff report explaining that the request is to reinstate the position of inspector supervisor that was last filled three years ago. Page 6

7 In the last three years, our number of inspections have steadily increased. In the interim of that three years both myself and the current building official have filled the gap and it is getting with the volume of work it justifies hiring this position back in order to manage the work load of the 7 supervisors they can also do fill in inspections in whatever field they might have. Our projections for this year s current revenue will cover the costs for this position. We are an enterprise fund, we bring in building permit fees, electrical, plumbing permit fees and then we use those fees in a direct cost to off-set to do plan review and inspections. Councilmembers asked question of staff. MOVED by Haverfield and SECONDED by Bruner to authorize the Building Department to hire a building inspector supervisor. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. The Mayor declared the Mayor Henry presented a request to discussion of the transfer of a 20 Ft. No-Build Easement on the Northwesterly Property Boundary of the Amity Dog Park to All Seasons Storage. City Attorney Mark Hilty presented a staff report explaining you can see the dog park on the bottom left of the exhibit and then there are some structures which is the current footprint of the Storage facility. They are expanding to the SE towards the dog park. As they build additional structures, they have an issue when they get adjacent to the property line, if the buildings are within 20 feet of adjoining buildings and this is my understanding of the City code requirements. They would have to leave that ground vacant or build fire rated walls which increases their cost of their construction. With trying to maximize the use of their property they are looking across the fence and wondering if they City is ever going to build. If the City does not build on the dog park property then they would be able to construct buildings without fire rated walls closure to the property line. They asked Darrin if they were ever going to build and the answer is no. There is a access road there. The property is used as a dog park and we don t anticipate the need for building within that 20 feet. When this came to me my concern was, without going into all the details that arises from the lending credit clause which prohibits the City s assets, even to granting a limitation on its use of its property and conveying that to benefit private interest. Page 7

8 What I have discussed with the project engineer was, who is Will Mason, I think that this can be presented to Council, my concern from a legal standpoint was that we are clearly authorized to grant the easement if they want to do than and it is a discretionary issue, I do think that there needs to be fair compensation paid and when the City is out acquiring easements for sewerlines and different types of things we certainly pay private parties their just compensation and we are required to do that. The owner of all Season Storage, Keith Jones is here tonight and his builder on the project who is also named Keith Jones, he is also here and can answer any questions. We have not negotiated a price and that may involve hiring an appraiser and sitting down at the table and trying to figure out how to value a 20 foot no-build easement. We don t want to go through all of that if the City Council is not interested. There is a separate issue that came up as part of the construction which is underway at the site the dog park fence was damaged. The fence has been damaged and there is no dispute about that All Seasons will fix it. It is currently sufficient as is to contain dogs on the dog park and as they proceed with their project they will get it fixed. MOVED by Bruner and SECONDED by Gibbons to allow staff to discuss with All Season on this issue and bring it back to Council at a later date. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. The Mayor declared the Mayor Henry presented a request for CDBG Reallocation Discussion. Economic Development Director Beth Ineck presented a staff report explaining that during prior CDBG Program Years City Council awarded funds to projects that are not moving forward. In Program Year 2012 $50,000 was allocated for the façade restoration of the historic Mercy Hospital on 16 th Avenue. In Program Year 2013 $60,000 was allocated toward a job creation set aside to assist with infrastructure projects tied to job creation. In Program Year 2015 we ended the year not expending $33, in administrative expenses. HUD requires that all funds are expended within eight years of grants awarded to the City otherwise funds are returned to the US Treasury. The total amount necessary to reallocate now is $143, Staff recommends that City Council consider allocating the funds to the design, engineering, and construction for the Stoddard Pathway. The City expended $18,413 in 2011 for initial design work for the pathway when Union Pacific was abandoning the rail line. Just as the City is required to expend CDBG funds within an eight-year time frame we are also required to demonstrate community benefit for funds expended for design services rendered in a timely manner. We have Page 8

9 until October 1, 2018 to establish a usable trail on the Stoddard line to demonstrate the community benefit from the design project in It is recommended that Council direct these available funds to this project to allow for the engineering and design work to be completed in 2017 as well as initial grading with the creation of a nature trail that can begin to be used immediately with full construction and development taking place as funds are available. Following direction from Council, staff will initiate the process to amend the appropriate CDBG Action Plans for the funding reallocation. Councilmembers asked staff questions. MOVED by Haverfield and SECONDED by Gibbons to direct staff to proceed to amend the 2012, 2013, 2015 and 2016 CDBG Action Plans to incorporate the reallocation of funds and authorize a public hearing for the plan amendments on June 5, Mayor Henry asked all in favor with all Councilmembers present voting AYE. The Mayor declared the Mayor Henry presented a request to authorize staff to proceed with Bronco Motors Contract for Fire Department Vehicles. Fire Chief Phil Roberts presented a staff report explaining that the Fire Department is requesting to enter into a 3-year lease agreement with Bronco Motors for 7 staff vehicles. The lease would mirror exactly what the Police Department is currently doing with their staff and detective vehicles. The Fire Department would use these vehicles for similar purposes. 1 Chief vehicle and 6 vehicles for the use of our Deputy Fire Marshals and Training Captains. For a total of 7 vehicles. Because of the lease agreement we would be limited to labeling the vehicles by removable window stickers or magnetic doors signs. Both would be acceptable to the leasing agency. Our current fleet is past the age that is recommended by our fleet services division. I have been working with Doug Adams to work through the details of the lease. The lease agreement would cost between $ to $ per year but no more than 30K. The reason for the variable is that we will be equipping the light duty trucks with bed liners and shells to cover the truck beds. Bronco motors will be installing that equipment and it will be included in the lease agreement. The current fleet of vehicles we are using now will be sold at auction and the projected sales of these units according to fleet services should bring in enough revenue to cover the cost of the first year's lease agreement. Page 9

10 MOVED by Bruner and SECONDED by Raymond to authorize staff to proceed with Bronco Motors Contract for Fire Department Vehicles. Mayor Henry asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Mayor Henry opened a public hearing for Create Local Improvement District No. 162 for City Utility Extensions and Connections and Authorize Public Hearing for. Daniel Badger presented a staff report explaining that LID 162 will provide a funding mechanism for property owners within the identified boundaries, as shown on Exhibit "A" to reconstruct curb, gutter, sidewalks, pedestrian ramps and drive approaches The area identified in exhibit "A" contains approximately 5,036 parcels Per City Council's direction to improve sidewalk conditions in Nampa and to search for 100 participants in this year's LID, Engineering has completed the following: o Sent letters to the approximately 5,000 property owners November 4th inviting property owners to volunteer to participate o Letters were also sent to the property owners with the 100 worst sidewalks in zone C, notifying them they may be required to participate in the LID due to the condition of their sidewalk Engineering has met with over 100 property owners regarding the LID program (see Exhibit "B") o Currently the Engineering Division has signed agreements to participate from: 29 property owners who volunteered to participate 42 property owners identified by the Staff to participate o An additional 29 property owners have been contacted and provided an estimate for the needed sidewalk work but have not signed the paperwork to participate 7 property owners have stated they wish to have the work completed by their own contractor Staff recommends leaving these properties in the LID Ordinance, we will leave these properties till the end of construction and if the improvements are not completed by that time we will complete them within the LID The Resolution of Intention to Create LID 162 was adopted by the City Council on March 20, $366,500 is the total estimated cost for the improvements. An estimated $300,000 of this total will be assessed to property owners for the cost of improvements. $50,000 of the funds will be provided by Street Division for pedestrian ramps and alley approaches, and $16,500 will be provided by a special LID assessment fund for legal fees. Page 10

11 No one appeared in favor of the request. Those appearing in opposition to the request were: Diana Thompson, 7673 Track Road; Michael Beckman, nd Avenue South; Tabatha Reems, 2016 Second Street South. David Yates, 335 Davis Avenue asked questions about the pedestrian ramps. Daniel Badger answered questions brought forward in testimony. Councilmembers asked questions of staff. MOVED by Haverfield and SECONDED by Bruner to close the public hearing. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. Mayor Henry declared the Councilmembers made comments and asked questions. Mayor Henry addressed some of the questions that were raised by Council. Finance Director Vikki Chandler made comments on the involuntary LID request. MOVED by Bruner and SECONDED by Skaug to authorize the creation of LID 162 for the purpose of constructing certain improvements to the City's sidewalks, pedestrian ramps, drive approaches, curbs, gutters and other related street improvements and that if there is a foreclosure that it come back to council. Councilmembers made comments on the request. Mark Hilty addressed some of the questions that were brought up by Council. The Mayor asked for a roll call vote with all Councilmembers Haverfield, Raymond Skaug and Bruner voting YES and Councilmember Gibbons voting NO. The Mayor declared the Mayor Henry opened a public hearing to consider sale of property at 2305 E. Amity via Public Auction. Michael Fuss presented a staff report explaining that the right-of-way acquisition for the Amity Avenue reconstruction project included total buyouts of five parcels. In each case, right-of-way Page 11

12 needs diminished the value of the parcel to the extent that federal rules required the City to purchase them. The project is now complete and closed out. That enables the City to divest itself of these parcel remainders. That process is dictated by Federal Highway Administration (FHWA) rules since original purchases were made with FHWA funds. Steps required by FHWA supersede local and state procedures when in conflict. Per FHWA requirements, Staff arranged for an appraisal of the property at 2305 East Amity Avenue (see Exhibit A), resulting in a value of $70,000. Council subsequently declared the property at 2305 East Amity Avenue to be surplus and offered it in writing at the appraised price ($70,000) to all adjacent landowners, none of whom indicated any interest. Per FHWA requirements, this public hearing was set to discuss if the City Council desires to sell the property. Staff recommends selling the property. No one appeared in favor of or in opposition to the request. MOVED by Skaug and SECONDED by Haverfield to close the public hearing. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. Mayor Henry declared the MOVED by Raymond and SECONDED by Bruner to declare the property at 2305 East Amity as surplus and authorize the sale of the property. The Mayor asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Mayor Henry opened a public hearing for assessment roll for voluntary LID 161 for Utility Extensions and Connections. Michael Fuss presented a staff report explaining that this LID was voluntary and implemented upon homeowner s request to provide a mechanism to assist individuals pay their pressurized irrigation, domestic water, and or sewer hookup fees through a property assessment with a longterm payment plan and relatively low interest rates. Page 12

13 Council adopted Resolution No declaring their intention to create an LID on February 1, A public hearing concerning creation was held and, with no protest, Ordinance 4236 was passed, under suspension of rules March 7, Throughout the course of 2016 as property owners requested connection to city services they were given the opportunity to pay in advance or pay the hook-up(s) via the LID. The Water Division made utility connections for pressure irrigation and domestic water for homeowners requesting services. Homeowners who requested hookup to sewer services hired licensed plumbers to connect to City sewer. The Final Report and Summary was presented and approved at the March 6, 2017 Council meeting. At this same time, Council authorized a public hearing for. Notice of Public Hearing, a letter of explanation and the draft assessment roll were mailed to individual property owners on March 10, 2017 notifying them of the assessment to their property and public hearing to be held on. Notice of the Public Hearing was published in the Idaho Press Tribune March 14, 15 and 16, All assessments were for voluntary, standard utility extensions and connection fees in the total amount of $22, (see exhibit A ). Staff recommends Council confirm the assessment roll No one appeared in favor of or in opposition to the request. MOVED by Bruner and SECONDED by Haverfield to close the public hearing. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. Mayor Henry declared the MOVED by Raymond and SECONDED by Bruner to approve the assessment roll for voluntary LID 161 for Utility Extensions and Connections and authorize the City Attorney to draw the appropriate Ordinance. The Mayor asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Page 13

14 Mayor Henry opened a public hearing for agreement to transfer personal property (Material Covered Tent at Wastewater Treatment Plant) between Ada County Highway District and City of Nampa. Deputy Public Works Director Nate Runyan presented a staff report explaining that on April 3, 2017, City Council authorized the advertisement of a public hearing to consider the sale of a material covered tent previously used for biosolids handling at the Wastewater Treatment Plant (WWTP). The public hearing is scheduled for, and Idaho Code requirements have been satisfied to consider the sale of this City owned property (see Exhibit A). Staff has received offers from City of Nampa Streets Division and Ada County Highway District (ACHD) to purchase the tent. Streets needs 160 and the remaining 120 will go to ACHD. Staff determined the value of the tent to be $100, Streets will pay $53, and ACHD will pay $46, Engineering Division is preparing the bid documents for removal of the tent. City of Nampa and ACHD have developed an agreement to split the tent removal costs based on each parties portion of the tent (See Exhibit B). Staff recommends moving forward with the sale of the tent. Councilmembers asked questions of staff. No one appeared in favor of or in opposition to the request. MOVED by Skaug and SECONDED by Haverfield to close the public hearing. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. Mayor Henry declared the MOVED by Haverfield and SECONDED by Skaug to approve sale of WWTP material covered tent, previously used for biosolids handling, to the City s Street Division and Ada County Highway District, for Wastewater Division, and authorize Mayor to sign Agreement to Transfer Personal Property, between Ada County Highway District and the City of Nampa, in the amount of $46, and pro rata share of City s cost to dismantle the material covered tent. The Mayor asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Page 14

15 Mayor Henry opened a public hearing for vacation of a portion of the 80 Ft. Right-of-Way of W. Hemingway Blvd, West of the Intersection with N Bingham Dr, within Cossell Commercial Subdivision in Order to Improve the Vacated Right-of-Way Area as Part of the Development of the Adjacent Commercial Lot at 2005 N Bingham Dr. Within a BC Zoning District for Stephen Kren. Stephen Kren presented the request. Councilmembers asked questions of the applicant. Planning and Zoning Director Norm Holm explained that the request is for a vacation of that portion of the right of way of West Hemingway Boulevard adjacent 2005 North Bingham Drive which is in a BC zone for Stephen Kren. Mr. Kren is developing the commercial lot at 2005 North Bingham Drive with improvements to the proposed vacation area. He indicated the following reasons for the vacation. 1) If vacated this will allow me to clean up the area keeping it free of weeds and debris. 2) Making improvements to the curb and gutters. 3) Stopping the illegal dumping of trash and dead animals etc 4) Having full access to my property without cars and trucks blocking the access. 5) I also have a consent letter from the property owner of Lot2 Block 3 of Cossell Commercial Subdivision General Information Applicable Regulations State law requires the consent of adjoining property owners. Mr. Kren and Hogan LLC are the only property owners adjacent either side of the proposed right of way vacated area. Hogan LLC has provided letter of consent. Description of existing Uses the right of way is open but not fully developed or used for access to the adjoining properties. Special Information Planning & Zoning History: This portion of W. Hemingway Blvd. was originally planned to be extended to the west. In the last 35 years, the areas to the west have been developed with no plan for a continuation of the roadway. The applicant owns the property to the north of 2005 N. Bingham Dr. at 2015 N. Bingham Dr. and has operated his electrical contracting business from the location. Page 15

16 Vacation Purpose: The owner/applicant desires to vacate the unimproved right-of-way to improve the proposed vacation area as part of the development of the adjacent commercial lot to the north at 2005 N. Bingham Dr. Public Utilities: An 8" sewer main is in N. Bingham Dr. A 6" water main is in N. Bingham Dr. and an 8" water main is in the proposed to be vacated area of W. Hemingway Blvd. No irrigation mains are in the proposed vacation area. Environmental: Approval of the vacation will have no effect on properties other than those adjacent along either side of the vacation area. Correspondence: As of the date of this staff report no objections have been raised by any utility companies or surrounding property owners concerning the proposed vacation. Fire, Building, and Engineering Departments do not oppose the right-of-way vacation. The owner of the property to the south at 1901 N. Bingham Dr. has provided the required consent for the vacation and is granting their portion of the vacation area to the applicant. Staff findings and discussion Planning staff sees no reason why this section of the right of way or West Hemingway Boulevard should not be approved. The vacation will facilitate of the development and utilization of the applicant s property to the north. Recommended Approval Conditions If the City Council following the public hearing determines to approve the requested vacation of Hemmingway Blvd. the Engineering Division has no concerns with recommending approval with the following conditions: 1) The City will retain a 15' wide easement over the existing water main as proposed and shown on the approved civil plans for the applicant's new shop building; or 2) At his expense, the applicant shall remove the water main and plug it off just past his new water service connections. Therefore, no easement will be required. No one appeared in favor of or in opposition to the request. MOVED by Bruner and SECONDED by Haverfield to close the public hearing. Mayor Henry asked all in favor say aye with all Councilmembers present voting AYE. Mayor Henry declared the Page 16

17 MOVED by Skaug and SECONDED by Haverfield to approve the vacation of the 80 Ft. Rightof-Way of W. Hemingway Blvd, West of the Intersection with N Bingham Dr, within Cossell Commercial Subdivision in Order to Improve the Vacated Right-of-Way Area as Part of the Development of the Adjacent Commercial Lot at 2005 N Bingham Dr. Within a BC Zoning District for Stephen Kren with staff conditions and authorize the City Attorney to draw the appropriate Ordinance. The Mayor asked for a roll call vote with all Councilmembers present voting YES. The Mayor declared the Mayor Henry opened a public hearing for vacation of the southerly one ft. of the five ft. utility easement located on the North Side of 5018 S Lava Springs Loop on the South Side of W Locust Lane and West of Southside Blvd, Within an RS-6 PUD Zoning District for Jerry Smith of Young American Homes AND Variance to City of Nampa Zoning Ordinance Section D Requiring a Five Ft. Side/Rear Yard Setback for Property Located at 5018 S Lava Springs Loop within an RS-6 P-U-D Zoning District, on the South Side of W Locust Lane, west of Southside Blvd. for Jerry Smith of Young American Homes. Jerry Smith, Young American Holmes presented the request. Councilmembers asked the applicant questions. Norm Holm presented a staff report explaining that the request is for a variance to Nampa City Zoning Codes of one foot to the required five foot rear yard setback per N.C.C D in a RS 6 PUD Zone (Single-Family Residential, 6,000 sq. ft. min. lot size) Zone with a Planned Unit Development overlay; and, a vacation of the southerly one foot (1 ') of a rear five foot (5') wide/deep by 11 O' long, platted, general utility and irrigation easement. Both actions appertaining to the same property addressed as 5018 South Lava Springs Loop for Jerry Smith of Young American Homes. Variance Applicable Regulations : (Variance) Purpose: The council is empowered to grant variances in order to prevent or to lessen practical development difficulties, unique site circumstances and unnecessary physical, geographical hardships inconsistent with the objectives of zoning as would result from a literal interpretation and enforcement of certain of the bulk or quantifiable regulations prescribed by this title. A variance shall not be considered a right or special privilege, but may be granted to an applicant only upon a showing of undue hardship because of: a) special characteristics applicable to the site which deprive it of privileges commonly enjoyed by other properties in the same zone or vicinity, and b) the variance is not in conflict with the public interest. Hardships must result from special Page 17

18 site characteristics relating to the size, shape or dimensions of a site or the location of existing structures thereon, from geographic, topographic or other physical conditions, or from population densities, street locations or traffic conditions or other unique circumstances. Variances are not intended to allow something that others do not have a permitted right to do. The purpose of a variance is to provide fair treatment and to see that individuals are not penalized because of site characteristics beyond their control. (Ord. 2140; and. Ord. 2978) : Actions: A. Granting Of Variance Permit: The council may grant a variance permit with respect to requirements for fences and walls, site, area, width, frontage, depth, coverage, front yard, rear yard, side yards, outdoor living area, height of structures, distances between structures or landscaped areas as the variance was applied for or in modified form if, on the basis of application, investigation and evidence submitted, the council concludes the following: 1. Literal interpretation and enforcement of the regulation would result in practical difficulty or unnecessary physical hardship inconsistent with the objectives of the zoning ordinance. 2. There are extraordinary site characteristics applicable to the property involved or to the intended use of the property which do not apply generally to other properties classified in the same zoning district. 3. Literal interpretation and enforcement of the regulation would deprive the applicant of privileges enjoyed by the owners of other properties classified in the same zoning district. 4. The granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties classified in the same zoning district. 5. The granting of the variance will not be detrimental to the public health, safety or welfare or materially injurious to properties or improvements in the vicinity. Staff Findings and Discussion I. Variance Introduction: Variances are traditionally offered zoning tools used as remedies to seek jurisdictional waivers or reductions of quantifiable, measurable development code requirements (e.g., setbacks, property dimensions, height standards, min. or maximum quantities or sizes, etc.) with which compliance in a given situation could not be attained due to site constraints (such as unusual topography) inherent to a property, rather than being the result of an applicant's own action(s)/development desires. Normally, economic considerations or "self-imposed hardships" or predicaments are not qualifying grounds to support a Variance application or its approval. As noted in the planning text The Practice of Local Government Planning (ICMA, 1988, 2nd ed.), "Many requests for variances are for minor bulk variances in existing neighborhoods: for example, expansions of patios or carports one or two feet into Page 18

19 designated side-yard setbacks. On such matters the zoning board becomes a sort of neighborhood arbitration board, dealing with physical hardships. Although these hardships are rarely great, this should be weighed against the extent of the public sector's stake in the somewhat arbitrary determination that a 10-foot- side yard is superior to a 9-foot one." In Nampa, in order to justify a Variance Permit request, an applicant is tasked with arguing successfully to the City's Council that there is some aspect of the Property that physically, topographically or based on code requirements puts them at a disadvantage in trying to accomplish what they wish in comparison to like properties, especially in the surrounding area. If the Council believes that there is no real topographical hardship associated with a Variance application (e.g., a river, a highway or a mountain in the way, etc.}, then left to the applicant is the opportunity to argue that there is a "unique site circumstance" sufficient to justify their request. In times past, Variance Permits have been issued on a case by case basis where a unique situation could be determined to exist that pertained to a Variance application. Thus, historical matters, errors by the City or County, demonstrated lack of knowledge concerning a code by an applicant or their contractor, common sense "solutioning", development precedent and a variety of other mitigating factors have been evaluated in conjunction with these kinds of applications for relief from quantifiable, measurable standards adopted as law via Nampa's zoning ordinance. Council is at liberty to approve or deny a Variance. And, their vote should not necessarily be construed as setting precedent -- for nothing binds them to vote the same way twice other than their own perceptions and those of others that they may be concerned with. Still, consistency is a desirable goal when dealing with case by case Variance requests. As a Variance decision is a "quasi-judicial" matter, any vote to approve or deny should be accompanied by a reasoned statement listing the rationale for the decision made. II. This Application: As Variance Permits have been used to provide opportunity for an applicant to seek relief from a dimensional or quantifiable, metric standard, this request was received to ask the Council to consider allowing a reduced rear yard setback to allow a house to remain where it has been placed on the Property rather than being required to move it to a code compliant location one foot (1 ') south. As this is a Variance request, it is the obligation of the Applicant to present such facts and persuasive arguments as to convince the Council that there exists some form of hardship or other unique site circumstance to justify issuance of the requested permit. The review criteria the Council is to use in assessing the application are those in bold font listed at the beginning Page 19

20 of this report under the heading of "Applicable Regulations", "Actions" 1-5. Those criteria serve as the "Conclusions of Law" to be associated with this matter. III. General, Possible Finding: 1. The Property (legal description within City case file VAR ) made the subject of this Variance request is located within the incorporated limits of the City of Nampa; and, 2. The Applicant has a controlling interest in the Property and is authorized to represent the same or allow another party to represent the same in this matter; and, 3. The Applicant proposes a reduced rear yard setback (4' in lieu of 5') in conjunction with their intent to retain, in its current position, a house already constructed on the Property; and, 4. As authorized and mandated according to Idaho statute, the City has adopted a comprehensive zoning ordinance that applies to all properties within the City's incorporated limits, and (by limited form and fashion) to areas within its negotiated Impact Area; and, 5. The City's zoning ordinance requires that properties (i.e., lots or parcels) in the RS 6 [PUD] Zone comply with all relevant zoning code requirements appertaining thereto (including conformance to any requisite setbacks); and, 6. That the City's adopted zoning ordinance defines the rear property line of a lot or parcel thusly: 7. That the City of Nampa defines a "setback" in part as: "SETBACK, YARD REQUIREMENTS: The distance (typically expressed in measurements in feet) that buildings or uses must be removed from the property lines of the lot or parcel upon which they rest or will be placed. Setbacks are to be measured from property lines."; and, 8. That among RS zoning regulations, properties in that land use district within the City of Nampa are required to provide/yield a five foot (5') wide/deep rear yard setback in accordance with N.C.C D within which no building improvements may be emplaced; and, 9. That a planned unit development (PUD) permit or overlay, as applicable, may reduce setbacks pertinent to a development, but such allowance was not exercised for the greater Lava Springs Subdivision within which the Property lies; and, 10. The Applicant seeks a Variance Permit from the City of Nampa in order to allow a house, already apparently placed one foot (1 ') within the required five-foot (5') rear yard setback to remain, by effectually, reducing the required five-foot (5') setback to four feet (4') from the rear property line to the nearest wall of the home; and, 11. The Applicant has submitted to the City a complete Variance Permit Application together with the requisite fee, and the City has received the application; and, Page 20

21 12. The Variance Application is being processed in conjunction with procedures compliant with the Local Land Use Planning Act, and Nampa Zoning Ordinance standards appertaining to such an application type; and, 13. Variances, as a rule, are not to be issued simply for economic reasons or convenience; they "shall not be considered a right or special privilege, but may be granted to an applicant only upon a showing of undue hardship because of: a) special characteristics applicable to the site which deprive it of privileges commonly enjoyed by other properties in the same zone or vicinity"; and, 14. Further, a statement has been provided that attempts to justify the Variance request as some type of topographical or other physical site hardship or "unique site circumstance"; and, 15. Adjacent property owners have not provided comment regarding the application; and, 16. The City's Engineering Division has expressed that they are not opposed to the application; and, 17. The Nampa Highway District has expressed that they are not opposed to the application; and, 18. No direct physical impact on the "general public" by this request is foreseen by virtue of this request were it to be approved; expected impact would be center, rather, on the question any approval raises as to its propriety, possibly including a perceived setting of precedence for similar setback code deviations given compliance to setback standards demonstrated by other persons/parties in the City; and, 19. Attached to this report is all of the information Staff had by the time this report was ready to go to print (12 noon, 12 April)... IV. Analysis/Opinion: In Nampa, as pertaining to land use Variance Permit requests, a burden rests upon an applicant to argue persuasively to the City's Council that one or more conditions related to the property they represent interfere(s) with the applicant's use of their land in manner and form commensurate with that enjoyed, most particularly, by their neighbors or other properties in a similar situation and zoning district as that applicant's land. Alternatively, they may argue that there is otherwise an "unique site circumstance" attendant their situation (e.g., historical matters, errors by the City or County, demonstrated lack of knowledge concerning a code by an applicant or their contractor, common sense "solutioning", development precedent and a variety of other mitigating factors). Each Variance application is reviewed on a case by case basis and the merits of the matter are weighed in the public venue. Public testimony is received and the opinions of City departments or outside agencies submitted to the Council for their consideration. With respect to the matter made the subject of this report, Applicant, per their narrative argues for their Variance requests, essentially as follows: Page 21

22 A) That the applicant maintains that at the time they built the house, they used (and the City plan reviewer apparently as well) a different plat version than is recorded to generate the site plan that depicted the proposed position of the house made the subject of the variance application. Accordingly, the house was sited per the plan but it was later discovered such was in error; and Noting the understandable argument made by the Applicant, Staff also observes as follows: A) That Staff has not received expressions of opposition to the Variance request from City Department/Divisions, outside agencies, or the public; and B) That there are no City (public) utility lines on or crossing the property according to City GIS information; and That considering (but notwithstanding) the fore-going, Staff opines as follows: Rear Yard Setback Relief Request: Favorable Recommendation As to the requested/proposed, reduced side yard setback (five feet [5'] down to four feet [4']), Staff believes the same to be reasonable for consideration for approval). The Applicant is truly left with a choice to obtain a Variance Permit or move/remove the house. Given the findings stated in this report, we consider the request to be fair and reasoned given the situation they are confronted with and the nature of what is sought. The Variance request is of a truly de-minimis nature and, if approved, will "uncloud" the title as far as zoning conformance is concerned. Easement Vacation Respecting easement vacation requests, our code states that, : Amended Plats; Vacations C. Vacations: Vacation approval shall be required in order to either erase some or all of an easement or right of way. Vacation approval shall be required in order to move the location of all or part of an already platted and recorded right of way or easement. Processing of vacation requests for easements and/or rights of way shall be executed in accordance with provisions of Idaho state code. Right of way vacations shall be done by ordinance of the city council and approved first by the same during a public hearing. Alternatively, a re-plat of a subdivision may also serve to vacate easements and/or rights of way when filed, approved by the city, and then recorded. (Ord. 3573, ) General Information/Narrated Findings Page 22

23 Easements, in part, provide a superior right of land use or access to a beneficiary. Easements are distinct from "setbacks" -- though having a similar effect [sometimes] in establishing areas wherein structure construction is not allowed. In the case of subdivisions developed in Nampa, easements of varying dimension are routinely reserved by the City around the periphery of their lots to protect drainage, grading, and utility line interests. State law indicates that, "Easements shall be vacated in the same manner as streets." ( ). Idaho Code Section requires that in order to vacate a street, among other prerequisites, "the owner or owners of the property abutting said public street... have been served with notice of the proposed abandonment in the same manner and for the same time as is now or may hereafter be provide for the service of the summons in an action at law." This appears distinct from a situation where a plat is being proposed for vacation and wherein lie one or more utility easements where a different set of notification requirements appertain (I.C (A) (5)). Some time ago, the subdivision ordinance section of the City's zoning code was amended with respect to vacation requests. Previously, the code indicated that Staff [could] review and approve utility easement vacation requests. In such instances, we customarily opted for review by City Council given requirements in state law that govern notification of easement vacations viewed as potentially "trumping" our code. (Legal counsel approved of causing Council review of easement vacation applications after having met with Staff in January of 2013 to re-visit how we handle/process vacations of easements, etc.) In short, it was determined that convening a public hearing gives all interested parties/neighbors a chance to find out what is being proposed ( concurrently satisfying State mandated notification requirements), and, to provide information regarding the endeavor to the City which may be of use/concern. No set criteria govern the appropriateness of a vacation request; the decision being left to the discretionary judgment of the authority hearing the request. The need to protect an easement to serve a public (or other vital or prevailing interest) may serve as rationale to reject a vacation proposal. The Property is circumferentially encumbered by easements. The Applicant has constructed a house on the Property which apparently encroaches a foot (1') into a portion of an easement area that runs adjacent to, and parallel with, the northern boundary of the lot. The Engineering Division of the City of Nampa administers the protection of subdivision easements. Their representative has indicated that they are not opposed to the Vacation request. No public utilities reside within the affected easement. Staff notes that (excepting the setback intrusion made a part of the companion Variance Permit request associated with the/this Easement Vacation petition) the house on the Property otherwise conforms to required zoning setbacks and easements appertaining to the lot in so far as we are aware. Page 23