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2005, 09-27 Regular Meeting MinutesMayor Wilhite called the meeting to order at 6:00 p.m., and welcomed everyone to the 75 meeting Attendance: Diana Wilhite, Mayor Rich Munson, Deputy Mayor Dick Denenny, Councilmember Mike DeVleming, Councilmember Mike Flanigan, Councilmember Gary Schimmels, Councilmember Steve Taylor, Councilmember MINUTES City of Spokane Valley City Council Regular Meeting Tuesday, September 27, 2005 City Staff: Nina Regor, Deputy City Manager Cary Driskell, Deputy City Attorney Ken Thompson, Finance Director Mike Jackson, Parks & Recreation Director Cal Walker, Police Chief Tom Scholtens, Building Official Carolbelle Branch, Public Information Officer "Bing" Bingaman, IT Specialist Chris Bainbridge, City Clerk INVOCATION: Father John Steiner, St. Mary's Catholic Church gave the invocation. PLEDGE OF ALLEGIANCE Mayor Wilhite led the Pledge of Allegiance. ROLL CALL City Clerk Bainbridge called roll; all Councilmembers were present. APPROVAL OF AGENDA It was moved by Deputy Mayor Munson, seconded by Councilmember Flanigan, and unanimously agreed to approve the agenda as presented. INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS COMMITTEE, BOARD, LIAISON SUMMARY REPORTS Councilmember Taylor: mentioned that last Friday evening's Valleyfest parade was a wonderful, well - attended event, and he enjoyed the parade and the next day's ribbon cutting and opening ceremonies at CenterPlace. Deputy Mayor Munson: stated that he also attended Friday's parade and opening ceremony at CenterPlace, and had a wonderful time throughout the weekend; that he also attended the Spokane Transit Authority meeting last week; and announced that due to his October 6 surgery, he will be out for the approximately three weeks, but hopes to have a telephone hook -up so that he can hear the meetings, although he will not participate in them. Councilmember Flanigan: said that he also attended several weekly ribbon cuttings and grand openings; he attended the monthly Health District meeting; the ValleyFest parade and celebration, and that attendance was estimated for the parade at 10,000; with 32,000 estimated attendance for ValleyFest. Councilmember Denenny: explained that he attended the Regional Health Meeting where housekeeping issues were discussed; that tomorrow the full group of the Spokane River Total Maximum Daily Load (TMDL) collaboration will meet and will be the first meeting to begin defining the various scenarios, and that he anticipates providers will have scenarios, as well as the Conservation District and Sierra Club; and commercial companies, and that the goal will be to try to blend all those together; and that they asked the Department of Ecology (DOE) not to come forward with a scenario of what they expect. Councilmember DeVleming• stated that he attended the 911 Board meeting this morning where they approved the budget recommendation to the County which includes an estimated 7% increase; that he attended a press release this morning regarding the Crime Check phone number that will be disconnected Council Meeting: 09 -27 -05 Page 1 of 5 Approved by Council: 10 -11 -05 October 1, and that the change has been challenging as the crime reporting number is receiving approximately 5,000 calls a month for information. MAYOR'S REPORT: Mayor Wilhite reported that she attended the Spokane Chamber's annual meeting; and the ribbon cutting at 24 -Hour Fitness; and she discussed a school project at West Valley where the children role -play in various community jobs; and she too attended the Valleyfest celebration. PUBLIC COMMENTS As noted below, certain agenda items provide an opportunity for public comment during the discourse of that agenda item, and public comment will be invited on those items as they come up on the agenda. Also as noted below, agenda items such as "Administrative Reports" and "Information Only" items do not allow for public comment during the discourse of those items; however, you may comment on those items now, as well as any other non - agenda items of interest to you. When you come to the lectern, please state your name and address for the record and limit remarks to three minutes. Mayor Wilhite explained the change in format for taking public comments, as noted above, and that this change is a result of a change in the Council's Governance Manual; and she invited public comment. Bill Gothmann, Planning Commissioner: he read his prepared September 27 letter concerning providing notice to landowners prior to taking comprehensive land use actions; and asked that Council consider adopting a notification policy or postpone consideration of the land use section of the draft Plan until such policy can be adopted and landowners can be notified. 1. PUBLIC HEARING: Proposed 2006 Budget — Ken Thompson Mayor Wilhite opened the public hearing at 6:21 p.m. Finance Director Thompson explained that tonight's public hearing is the first full hearing on the proposed 2006 budget, with an additional hearing set for October 11. In going through his PowerPoint presentation, Mr. Thompson explained that the budget is down a little from the 2005 amended budget; that the property tax revenue is down because the City no longer operates the library; and sales tax are up substantially due to refined estimates. He also mentioned that this is the first full year for CenterPlace operations; and he anticipates the numbers will change as the budget process progresses. Mayor Wilhite invited public comment; no comments were offered and Mayor Wilhite closed the public hearing at 6:27 p.m. 2. PUBLIC HEARING: Ordinance 05 -025, Extension of UR -1 Zoning — Marina Sukup Mayor Wilhite opened the public hearing at 6:28 p.m. Community Development Director Sukup explained that this hearing is for the benefit of the public; that the original ordinance establishing the UR- 1 zone expired and an ordinance extending that zone was passed and became effective September 6, 2005, for an additional six months, adding that this zone is for the Ponderosa and Rotchford neighborhoods. Ms. Sukup further explained that ordinance 05 -025, which was adopted and effective September 6, 2005, was done on an emergency basis in order to prevent any gaps between the original ordinance (04 -035), and 05 -025. She also mentioned that state statute requires that a hearing be held within 60 days of passing such ordinance. Mayor Wilhite invited public comment. Chuck Hafner, 4710 S Woodruff: gave some history of the need for the change; and stated that Spokane County previously arbitrarily assigned the area UR -7, which would allow up to seven houses an acre, duplexes, and no animals. Mayor Wilhite invited further comments; no other comments were offered and Mayor Wilhite closed the public hearing at 6:35 p.m. Council Meeting: 09 -27 -05 Page 2 of 5 Approved by Council: 10 -11 -05 VOUCHER LIST DATE VOUCHER Number(s) TOTAL VOUCHER AMOUNT 09 -13 -2005 7538 -7608 $511,531.35 09 -20 -2005 7617 -7670 $499,389.52 GRAND TOTAL $1,010,920.87 3. CONSENT AGENDA Consists of items considered routine which are approved as a group. A Councilmember may remove an item from the Consent Agenda to be considered separately. a. Approval of the Following Vouchers — Mary Baslington: b. Approval of Payroll of September 15, 2005 of $139,059.08— Jason Faulkner c. Approval of Amended Department Emergency Management Contract — Cal Walker d. Approval of Council Study Session Meeting Minutes of September 6, 2005 e. Approval of Council Regular Meeting Minutes of September 13, 2005 It was moved by Deputy Mayor Munson, seconded by Councilmember Taylor, and unanimously agreed to approve the Consent Agenda. NEW BUSINESS 4. First Reading: Proposed Ordinance 05 -027 Adopting Property Tax — Ken Thompson After City Clerk Bainbridge read the ordinance title, it was moved by Councilmember Taylor and seconded by Deputy Mayor Munson, to advance ordinance 05 -027, levying property taxes for the 2006 budget, to a second reading. Finance Director Thompson explained that this ordinance is required by state law in order to levy property taxes; that the City is limited to a maximum of $1.60 per thousand dollars of assessed value; and that Council can modify the ordinance to levy a rate between $1.51 and $1.60, adding that each one cent of levy rate generates approximately $50,000 in property tax revenues. Mayor Wilhite invited public comment. Chuck Hafner, 4710 S Woodruff: asked if the amount has gone up or down or equalized; and that it is not apparent if taxes are being raised or not. Dick Behm, 3626 S Ridgeview Drive: he asked how this compares with the existing rate; and how does that compare with Spokane County; he stated that if we keep the same rate and the assessed values increase, it makes it appear as if taxes are being raised; that the information presented tonight is insufficient and does not explain how this will affect taxes for the average homeowner, and he urged Council not to vote on this tonight. Mayor Wilhite invited further comments; no further comments were offered. Brief Council discussion ensued regarding acting within a reasonable time and moving this forward to a second reading, which will give staff additional time to gather more information, and allow the public further time to comment. Vote by Acclamation: In Favor: Unanimous. Opposed: None. Abstentions: None. Motion carried. 5. First Reading: Proposed Ordinance 05 -028 Adopting Initiative and Referendum After City Clerk Bainbridge read the ordinance title, it was moved by Deputy Mayor Munson and seconded by Councilmember Flanigan to advance Ordinance 05 -028 to a second reading. Deputy City Attorney Driskell gave the background of the proposed ordinance, as per his September 27, 2005 Request for Council Action form; and added that due to specific time requirements, Council would not be able to suspend the rules and adopt the ordinance tonight; but may advance the ordinance to a second reading if Council Meeting: 09 -27 -05 Page 3 of 5 Approved by Council: 10 -11 -05 that is Council's desire. Mayor Wilhite invited public comment; no comments were offered. Vote by Acclamation: In Favor: Unanimous. Opposed: None. Abstentions: None. Motion carried. 6. Motion Consideration: Contributions to Outside Agencies — Ken Thompson It was moved by Mayor Wilhite and seconded by Councilmember DeVleming to adopt the figures for outside agencies as presented at the last meeting. Finance Director Thompson gave a background of the issue and of what information they previously discussed, but added that rather than $1,000 each for Big Brothers /Big Sisters and for Chase Youth Commission, it was determined to combine the funds into $2,000 for youth activities, and to obtain a recommendation from our Student Advisory Council (SAC) on how to best use those funds. After brief discussion, including that there is no need to wait for the SAC recommendation before proceeding, it was moved by Deputy Mayor Munson and seconded by Councilmember Flanigan to amend the motion to reduce the EDC allocation by $9,000 and apply that to the International Trade Alliance making that $25,000 for ITA and $56,000 for the EDC. Vote by Acclamation: In Favor: Deputy Mayor Munson; Opposed: Mayor Wilhite, and Councilmembers Schimmels, Taylor, Flanigan, Denenny, and DeVleming. Motion failed. It was then moved by Deputy Mayor Munson and seconded, to increase the total allocation to outside agencies to $125,000 and apply that increased difference to the ITA. After brief discussion on the proposed increased amount, including Councilmember Flanigan's preference if additional funds are to be allocated, to allocate those funds to the Community Center for their various programs, the vote was taken: In favor: Deputy Mayor Munson, and Councilmembers Denenny and DeVleming. Opposed: Mayor Wilhite, and Councilmembers Schimmels, Taylor, and Flanigan. Abstentions: None. Motion failed. Mayor Wilhite invited public comment. Jennie Willardson, 12722 East 23 Avenue: spoke in support of Councilmember Flanigan's idea of further supporting the Community Center. Tony Lazanis, 10636 East Empire: cautioned Council to exercise restraint on granting funds, and to measure the benefits and not spend more than we can afford. Mayor Wilhite invited further public comment; no further comments were offered. Vote by Acclamation to adopt the figures for outside agencies as presented at the last meeting: In Favor: Mayor Wilhite, and Councilmembers Schimmels, Taylor, Flanigan, Denenny, and DeVleming. Opposed: Deputy Mayor Munson. Abstentions: None. Motion passed. 7. Motion Consideration: CenterPlace Sponsorship for EDC /Chamber Meeting — Mike Jackson It was moved by Councilmember Flanigan and seconded by Councilmember Denenny to allocate $450.00 to the Spokane Valley Chamber of Commerce for sponsoring the EDC Chamber of Commerce meeting at CenterPlace. Parks and Recreation Director Jackson stated that this motion consideration stems from a discussion at the September 6 study session concerning the possible sponsorship of the Economic Development Council (EDC) to hold a Chamber meeting at CenterPlace, and it was later determined it would be best to allocate those funds to the Valley Chamber rather than the EDC. Deputy City Manager Regor stated that we currently do not have a policy regarding discounts or not charging fees for events that serve a public purpose; but the belief that this meeting serves a public purpose is valid reason to grant those funds; adding that a policy will be developed in the near future. Further Council discussion included that there is no real impact to the budget as it is the use of a facility; that this is more of an accounting issue as there will be no cash outlay; and the importance of assisting in an annual event and showcasing CenterPlace, thereby bringing people in for this and future meetings. Director Jackson said the scheduled October 27 meeting will not bump anyone else from the facility. Vote by Acclamation: In Favor: Unanimous. Opposed: None. Abstentions: None. Motion carried. PUBLIC COMMENTS - No comments were offered. Council Meeting: 09 -27 -05 Page 4 of 5 Approved by Council: 10 -11 -05 In response to the accompanying memorandum for this agenda Information item #10, Councilmember DeVleming asked that staff gather additional information regarding the motorcycle track issue and would like the issue scheduled on an upcoming council agenda for further discussion. There being no further business, it was moved by Councilmember Flanigan, seconded by Deputy Mayor Munson, and unanimously approved to adjourn. The meeting adjourned at 7:12 p.m. ),_ Christine Bainbridge, City Clerk ackv \\Idi-lik Lo Diana Wilhite, Mayor Council Meeting: 09 -27 -05 Page 5 of 5 Approved by Council: 10 -11 -05 nn ue Spokane jValley Memorandum To: Dave Mercier, City Manager From: Mike Connelly, City Attorney; Cary Driskell, Deputy City Attorney CC: Nina Regor, Deputy City Manager Date: September 27, 2005 Re: Motorcycle tracks in the city limits 247 Intorm' lion C?nlyllci7i'°1l,I 11707 E Sprague Ave Suite 106 • Spokane Valley WA 99206 509.921.1000 ♦ Fax: 509.921.1008 ♦ cityhall ®spokanevatley.org The issue of whether a specific motorcycle track is allowed on private property was raised at the City Council meeting on September 13, 2005 by neighbors to a property near the eastem border of the City. Although the context of the question was in relation to one specific parcel of property, this situation is likely to arise again. Legal staff has provided this memorandum addressing the broader question of what the City can do to deal with off -road motorcycle activity in the City. ISSUE — Can the City regulate the existence of off -road motorcycle courses within the city limits? If yes what mechanisms are available for doing so? SHORT ANSWER — The City has authority under its general police powers to regulate, or prohibit such activity within the City's corporate limits. Various mechanisms currently exist for doing so, for example the City's nuisance provisions under SVMC 7.05 may prohibit such activity, and the City's criminal code provisions under SVMC 8.25 may impose criminal penalties under specific circumstances. Other additional means could be adopted by the City, such as listing off -road motorcycle riding as a prohibited use under some or all .zoning classifications in the City. It is not clear whether a violation of existing code provisions is present. Specific and detailed evidence will need to be collected prior to taking any enforcement action. A revision to the interim Zoning Code could be initiated immediately. Lastly, a civil suit could be filed by the neighbors under a common law nuisance theory. ANALi'SIS — The City currently has at least two regulatory mechanisms for addressing noise issues resulting from the operation of off -road motorcycles in the city limits. A. Nuisance Code - The City adopted SVMC 7:05, entitled "Nuisances ". "Nuisance" means the unreasonable or unlawful use by a person, or real or personal property, or the unreasonable, indecent or unlawful personal conduct which materially interferes with or jeopardizes the health, safety, prosperity, quiet enjoyment of property or welfare of others, 1 offends common decency or public morality, or obstructs or interferes with the free use of public ways, places or bodies of water." SVMC 7.05.020. Among the listed prohibited nuisances are ones resulting from noise. SVMC 7.05.040(0) includes: 1. Any noise or sound that intrudes into the property of another person that exceeds the maximum permissible noise levels as established in WAC 173- 60-040, as currently adopted and hereafter amended. 2. The frequent, repetitive or continuous sounding of any horn or siren attached to a motor vehicle, except as a warning of danger or as specifically permitted by law. 3. The creation of frequent, repetitive or continuous sounds in connection with the starting, operation, repair, rebuilding or testing of any motor vehicle motorcycle, off - highway vehicle or internal combustion engine within a residential zone, so as to unreasonably disturb or interfere with the peace and comfort of owner or possessors of real property. 4. The noise operation of any automobile, truck, motorcycle or other vehicle in such a non - emergency manner to cause the squealing of tires by the rapid acceleration of the vehicle; the loud and continuous grinding, thumping or grading noises from tnicks or other commercial vehicles; the engine compression noise from the =muffled or poorly muffled compression braking of trucks; the sound from any motor vehicle audio sound system such as tape players; radios, and compact disc players at volumes so as to be audible greater than 50 feet from the vehicle itself; and loud, excessive engine or exhaust noise from unnluffled vehicles or vehicles operating with inadequate muffler systems to prevent unreasonably loud noises. As can be seen, there are several ways the City can determine if a noise violation of the nuisance code has occurred which would provide the basis for a civil violation. If operation of the motorcycle track results in the volume of noise at a given tune, as measured by a decibel meter, exceeding 55 decibels, then a violation exists. Alternatively, a violation can occur even if the motorcycle activity (or any activity for that matter) is below 55 decibels, if the noise fits within the definition of subsection 3, above. :lf the noise is frequent, repetitive or continuous in connection with operating a motorcycle, so as to unreasonably disturb *or interfere with the peace and comfort of an owner or possessor of real property, then this provides a second means of violation the nuisance provisions. Alternatively, the City could file a civil action in Spokane County Superior Court for an injunction to preclude conduct that rises to the level of a chronic nuisance violation, pursuant to S \TMC 7.05.030. B. Criminal. Code — The City adopted SVMC 8.25.060. It states as follows: 2 As can be seen in 8.25.060(A) and (B), this employs a standard of what would disturb the peace, comfort, and repose of a reasonable person of normal sensitivity. In applying this to a motorcycle track, a sound that emanates from a track in continuous operation could give rise to a violation of 8.25.060, depending upon the circumstances. There are several exemptions from the criminal code that appear to be related to the situation (SVMC 8.25.060(3)(i) and (x), but they do not apply. Subsection "i" only applied to rnotor vehicles on roadways, and "x" does not apply in residential areas. matter. 1. It is unlawful for any person to make, continue, cause to be made, or to allow to originate from real property in the possession of said person,_in private rights of way, or in public rights of way, any sound which creates a noise disturbance. 2. For the purposes of this section, the following sounds are declared to be noise disturbances: A. Sounds created by use of a radio, television set, musical instrument, sound amplifier or any other device capable of producing or • reproducing sound, which emanate frequently, repetitively or continuously from any building, structure or property located within a residential area, and which annoy or disturb the peace, comfort or repose of a reasonable person of normal sensitivity; B. Any other sound occurring frequently, repetitively or continuously which annoys or disturbs the peace, comfort or repose of a reasonable person of normal sensitivity. This section shall not apply to tionconumercial public. speaking and public assembly activities conducted on any public space or public right- of-way for which a permit has been obtained. Additionally, this section shall not apply to noises produced by dogs, which are addressed in Ordinance 03 -056. The cited provisions in .SVIMIC 8.25.060 may preclude the type of activity at issue in this C. Zoning compliance — The City adopted Spokane County's Zoning Code as the City's Interim Zoning Code. The subject property is Urban Residential 3.5. The Interim Zoning Code contains a list of prohibited activities in residential zones. One prohibited activity is operation a "race track ". Unfortunately, "race track" is not defined within the Zoning Code. The information the City has is that the subject property is not utilized for racing. Instead, the primary activity is using jumps. As such, it is the opinion of this office, as well as Community Development Director Marina Sukup, that the activity currently occurring would not be considered as operating a "race track.." Under the City's Interim Zoning Code, operating a motorcycle on private property in a residential zone is not a listed prohibited activity. The City may want to consider amending the Interim Zoning Code to specifically preclude any recreational or conunercial operation of off - road motorcycles on private property in the City as a whole or in specific zones, such as residential areas. If the City chooses to amend the Interim Zoning Code in this manner, the City would want to include a phase -in period of between 6 -12 months to allow property owners sufficient time to find an alternative to being able to use the property right the City would be eliminating. D. Civil lawsuit by property owners — Another alternative exists for the property owners that does not involve the City. It is well established in Washington law that one private party can :sue another private party (two neighbors) to force the stoppage of nuisance activity. There was a series of four famous cases in Washington relating to nuisance, all involving Royal Riblet and his wife, and the cement plant below it. That property is now the Arbor Crest Winery, north of the Spokane River above Plantes Ferry Park. In the first of those cases (referred to as Riblet 1), the Supreme stated as follows: The general legal principle to be inferred from court action in nuisance cases is that one landowner will not be permitted to use his land so unreasonably as to interfere unreasonably with another landowner's use and enjoyment of his land. The crux of the matter appears to be reasonableness. Admittedly, the term is a. flexible one. It has many shades and varieties of meaning. In a nuisance case the fundamental inquiry always appears to be whether the use of certain land can be considered as reasonable in relation to all the facts and surrounding circumstances. Application of the doctrine of nuisance requires a balancing of rights, interests and convenience. Riblet v. Spokane - Portland Cement Co., 41 Wn.2d 249 (1952). (Overruled on other, grounds related to length of statute of limitations, not here applicable). As such, a court would look at the facts presented to determine whether they give rise to a finding of a nuisance or trespass violation, thus warranting injunctive and /or money damages relief. SUMMARY — In relation to the specific complaint the City received, the City's code compliance officers will interview the neighbors and view any videotape evidence they possess. If it appears to meet the requirements necessary to establish a violation of the City's nuisance provisions on noise, the City will provide Mr. Rose with written notice that it believes the conduct to constitute a violation, and request that he voluntarily abate the activity immediately. if the activity continues, then the City could issue a Notice and Order that assesses a monetary penalty and requires clean up of the property. That determination can be appealed to the City's Hearing Examiner., who will either uphold the decision or not. If the HE upholds the City's Notice and Order, then the property owner has the right to appeal the FIE's decision to Superior Court. 4 In the event this approach does not work, and the property owner continues an activity the City has determined to be a nuisance, the City would forward the information supporting the assessment of the Notice and Order, as well as any documentation showing a continuing refusal to comply, to the County Prosecutor for pursuit of a criminal charge. If the Council wishes to pursue legislative change to the Interim .Zoning Code, staff can begin drafting such amendments. If so, the Council should give staff some direction into which zones would be affected. 5 Good Evening: I wish to address the question of providing notice to landowners prior to taking comp land use actions. The Planning Commission recently completed its work and now the action moves to the Council. Although the draft Comp Plan does not provide zoning, it does redesignate land uses of a number of parcels resulting in changing their underlying zoning. This will become clearer in the examples that follow. There are three types of land actions that have been redesignated by the draft comp plan: 1. New designations have been created: office, mixed corridor use, and city center are examples. This will result in rezones such as changing UR -22 to Garden Office; commercial to mixed use zoning; and commercial to City Center zoning. 2. The staff has done a yeoman's job of identifying over 50 parcels of land that do not conform to their comp plan designation. As a result, the Planning Commission has made recommendations for redesignation for each of these. For example, the old comp plan designated Sunshine Gardens, the nursing facility located next to the old University High School, as low density residential. The draft Comp Plan redesignated it to high density residential. This will result in a zoning change of UR -3.5 to UR -22. 3. The designation of some parcels just did not make sense. For example, the old comp plan designated parts of Mirabeau estates as high density, but the layout of lots was low density. Thus, the PC, redesignated them low density. This will result in a zoning change to UR -3.5. As a result of each of these actions, a number of parcels have been redesignated. However, there is a loophole in the law that does not require notification to either the landowner or surrounding neighbors when a comp plan redesignation occurs because, technically, it is not a rezone: it will result in a rezone. It should be noted that this is precisely what happened to Ponderosa, Rotchford Acres, and North Greenacres prior to incorporation and created monumental problems for our City. i believe the Council needs to plug this loophole. The Council needs to adopt a policy that, whenever a comp plan redesignation occurs that will change the underlying zoning, notice will be sent to the landowner and the surrounding neighbors before the redesignation receives final consideration by the Council. In that way, the landowner will have a chance to present his case prior to action taken by the Council, rather than fighting an uphill battle after the redesignation action is completed. Hearings are scheduled for consideration of the draft comp plan starting October 18. Since no notice has been sent to the affected landowners, it is paramount that the Council either take immediate action to adopt a notification policy, or postpone consideration of the Land Use section of the draft Plan until such a policy can be adopted and land- owners have been notified. Thank you, Bill Gothmann Planning Commissioner Sept. 27, 2005