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HomeMy WebLinkAboutNovember 25, 2003 C/C Minutes Meridian City Council November 25, 2003 Page 42 of 67 Item 17: Public Hearing: CUP 02-004 Request for Revocation of a Conditional Use Permit granted by the City of Meridian for John Nesmith for Meridian Automotive - 505 North Main Street: De Weerd: Okay. I will go ahead and bring us back from our recess and open up the Public Hearing 0 n Item NO.1 7, CUP 02-004, request for revocation - - 0 h-oh, I have Anna's thing. You know. Okay. I'll just open it and ask for staff comments. Nichols: Madam President, if I may, because this involves an application -- or a request to revoke a Conditional Use Permit, I'd ask that you swear staff in before the hearing in this one. De Weerd: Okay. Well, I can swear you both in at the same time. Is the testimony you provide the truth, the whole truth, and nothing but the truth, so help you God? Powell: Yes. Kirkpatrick: Yes, it is. De Weerd: Thank you. Do they have to state their name and address? Nichols: As they initiate their testimony, yes. De Weerd: As you initiate your testimony, please, state your name and address. Kirkpatrick: Wendy Kirkpatrick, 660 East Watertower, Suite 202, Meridian, Idaho. 83642. De Weerd: Thank you, Wendy. Kirkpatrick: And I think you all should know, I was here about a year ago and I'm Wendy Kirkpatrick, I'm a city planner with the planning department a nd, let's see, I'll start going through the staff report here. Meridian Automotive is located at the intersection of Main and Bower Street and here is a site plan of the project. Basically, we are here for the -- or staff is here supporting the revocation of the CUP application approved in 2002 for the expansion of the Meridian Automotive building. I'll go through - - I'll run through a brief history on the CUP permit. In 2000 -- actually, May 7, 2002, a Conditional Use Permit was approved for Meridian Automotive's expansion, which encompassed the construction of the western most building on the subject property and this CUP which was approved in 2002 superceded the CUP which was granted in 1997. And I'm not going to go into it, but there is a long history of the city taking action against John Nesmith, the owner of Meridian Automotive, because they have not come into compliance with the CUP which was approved in 1997 and to resolve that they went ahead and approved this new CUP in 2002 to encompass all of the things that had not been completed in 1997 and, essentially, wiped the slate clean and give the applicant a chance to come into compliance with the Meridian city code. There are a number of Meridian City Council November 25, 2003 Page 43 of 67 conditions 0 f t he 2002 C UP which were added 0 r modified from the 0 riginal CUP to bring the applicant in compliance, these include bringing landscaping up to standard, paving the parking lot where cars are stored near the Union Pacific right of way, a permit for t he sign, sidewalk needs to be installed 0 n Bower Street a nd the western most building, which was constructed in '97, does currently not have an occupancy permit and does not meet current building and fire code. A condition of the CUP for -- which was approved in 2002 stated that if all conditions of approval were not approved, the CUP would be revoked. That's why we are here this evening, and to go through some of the procedural things that brought us here this evening, on October 10th, 2003, the city sent John Nesmith a letter notifying him of the city's intent to revoc the CUP. On October 23rd John Nesmith responded to the city's letter requesting a hearing to contest the revocation and that's why we are at this hearing this evening. I'm going to go through some of the conditions that have not been completed by the applicant. Let's see, the building that we are -- that we will be referring to is the western most building, it's titled existing building to remain and it's a little bit confusing. In the CUP it's phrased as an expansion of the automotive building. It, actually, is not attached to the existing Quonset hut building you see off of the main street, it is a separate building, and I'll go through the conditions that haven't been completed and I also have some photos showing that these have not been completed. So, we have the sign permit that has not been obtained for the existing Meridian Automotive sign and this is the sign in question. We have landscaping that has not been installed in accordance with the approved landscaping plan. And there are a couple different areas where they have not come into compliance. Trees and shrubs were not installed to our specifications or to the approved plan on the southern edge of the property. The landscape buffer has not been installed on Main Street. And trees a nd shrubs have not been installed along Bower Street. And I have a photo -- this is actually just showing on Main Street where you can see that there haven't been trees and shrubbery - - 0 r t hat landscape buffer installed off of Main Street. This next item, the storage area and parking area located in and near Union Pacific Railroad right of way has not been landscaped and paved in accordance with the approved landscaping plan. And you can see this parking area has not been landscaped or paved. Okay. This one deals with facade improvements and landscaping that need to be completed prior to the occupancy of the western most building and I gave you all a couple of handouts before the hearing this evening, which I want to enter as -- enter as Exhibits 13 and 14. The first of these is a memo from Daunt Whitman, who is the city building official and the memo was sent to me Monday, November 24, that's why you're just getting it this evening. And this concerns the lack of an occupancy permit for -- I'll go ahead and show the building -- the lack of an occupancy permit for this building and this is when -- and Exhibit 14 refers to this. When this building permit was issued originally it was issued for a storage building and the applicant, whom I understand from previous applications and action taken against the applicant, the applicant has an arc welder and has been actually running an automotive shop out of this building, which was not permitted through the original building permit, so the building is not sprinklered. If they were to run these type of activities out of the building, the building code would require it to be sprinklered. And Daunt Whitman's memo addresses that and so does the original building permit they received in 1997. So, this is the shop that's in question. And another condition, Meridian City Council November 25. 2003 Page 44 of 67 sidewalks have not been constructed on Bower Street as required by the approved landscaping plan and this is some of the area along Bower Street where you can see it's still dirt, they haven't constructed sidewalks. A nd that's the end of the photos t hat I have. G 0 a head and put the site plan back u p. S 0, that concludes this part 0 f my presentation where I run through the conditions that have not been met. I think it's, actually, a pretty black and white matter. The conditions of approval for the CUP approved a year ago stated that if all conditions were not improved, the CUP was revoked, and there are a number of conditions that have not.been completed and in my opinion the most serious of these is that the building has not received an occupancy permit and is not -- has not been constructed to a standard where it would enable them to have the activities in the building, including the welding and auto shop that are taking place in the building. Are there any questions of staff? De Weerd: Wendy, can you tell us what improvements have been made since 2002? Kirkpatrick: Some landscaping has been put in. I believe some landscaping has been put in along Main Street and along the Union Pacific right of way. Not -- it doesn't meet the standard -- It doesn't meet the approved plan, but some landscaping has been put in and I believe also the fencing along -- along the storage area near the Union Pacific right of way is new. And I wasn't working here at that time, so I won't have a clear chronology of some of the improvements that have been made, but that's my understanding. De Weerd: Okay. Thank you. Anna, did you have anything to add? No? Okay_ Would the owner please -- Nary: Can I ask a question of staff before -- De Weerd: Oh. I'm sorry. Yes. Nary: Wendy, the way it's phrased in here about the welding operation, what evidence do you have that they are using it as welding? Kirkpatrick: From what I understand Daunt -- Duant Whitman has actually seen them gone .- has gone and done an inspection of the building and saw them welding in the building. Nary: Because his report doesn't say that. His e-mail says if they are welding it has to be compliant and I t's not. There is nor eport from code enforcement that they have been out to the site and inspected it and find it to be out of compliance. Powell: Madam President? De Weerd: Please state your name and address. Meridian City Council November 25, 2003 Page 45 of 67 Powell: Anna Powell, 660 East Watertower, Meridian, Idaho. 83642. Suite 202, the planning director for the city of Meridian. I believe that the memo from Daunt states that the cutting torch and welder that were present at the time of request for occupancy and I think he's stating there that he saw them there. Nary: Well, I can have a baseball bat in my house. It doesn't mean I play baseball inside. So, I mean did anybody go over there and see this activity occurring? Powell: Planning staff does not have any knowledge of it. We'd have to ask Mr Whitman. Nary: Okay. De Weerd: Thank you. Mr. Nichols, did you have something? Nichols: Madam President, I think it would be appropriate to just include in the record all of the exhibits that Ms. Kirkpatrick outlined on page seven of her staff report and include Mr. Whitman's memo, which would be No. 13. The copy of the building permit application would be No. 14. And the plan review dated October 11,1997, from Code Consultation Services of Idaho would be No. 15. De Weerd: Thank you. Is that sufficient, you're noting that, or do I need to specifically note it? Nichols: Well, you, as the presiding officer for the Council, have to include in the record whether or not you accepted or admit those exhibits to the record. De Weerd: Okay. Well -- thank you. We will admit the exhibits presented to us in our November 25th or our packet from Planning staff stamped -- or date stamped on November 21 st that had a list of exhibits, Exhibit Items 1 through 12. And, then, also the additional information that we received today noted as Item 13, which is the building permit application -- or, I'm sorry, 13, which is the e-mail from Daunt Whitman to Wendy. Fourteen, the building permit application. And, 15, which is the plan review from CCSI. Nichols: Madam President -- De Weerd: And we will just add that to the packet on page seven of the staff's packet. Nichols: Madam President, it also asks that you include in the record the copy of the notice of hearing as an additional exhibit, which would be No. 16. That's provided as part of your packet as well. De Weerd: Okay. The notice of the Public Hearing is admitted as Item 16 that is also in our packet of information. Nichols: Thank you. Meridian City Council November 25. 2003 Page 46 of 67 De Weerd: Thank you, Mr. Nichols. Nary: Madam President, can I ask one more question before Mr. Nesmith comes uP? De Weerd: You bet. Nary: On some of these things like landscaping, many times people bond for that. Was there no bonding or anything on this particular project? Kirkpatrick: From what I understand the applicant was discussing with the city bonding. They have not completed that bond for the landscaping. There is some correspondence going back and forth between the city and the applicant regarding the bond. Nary: Okay. Do you have any of that information for the record? Kirkpatrick: I have not included it in your packet. I do have that folder with that correspondence. Nary: Okay. Thank you. De Weerd: Any further questions? Bird: I have none. De Weerd: Okay. Would Mr. Nesmith step forward? Please raise your right hand. Is the testimony you provide tonight the truth, the whole truth, and nothing but the truth, so help you God? Nesmith: Yes. De Weerd: Thank you. Please, state your name and address. Nesmith: John Nesmith, 505 North Main Street, Meridian, Idaho. 83642. In response to __ one of the reasons why I wanted to revoke -- or not contest the revoking of this CUP is to, I guess, clarify some things. I had to go through the CUP process in order to know whether or not I could even do the project that I was proposing to do. I guess I'd just like to go through the list of issues and maybe I can clear up part of the issues. I have had a -- quite a time getting, I guess as previously discussed in other aspects of this Council meeting, that there is issues with downtown Meridian with drainage issues, sewers, and stuff like that and that it has taken me, admittedly, probably, because I'm doing it as a developer and not hiring it professionally done, I have hired an engineer, but they were contracted to work with ACHD to get the sidewalks done and that has taken a very lengthy time and several plan reviews to get that accomplished and I guess as of now I brought with them -- I just got them tonight, the current plans that are Meridian City Council November 25, 2003 Page 47 of 67 supposed to be approved to be able to get to the water drain down the Bower corridor into the drain thing that they got in the middle of the street, but -- and they also do not want to -- I have Scott Reidel's number at ACHD that you guys can contact if you want verification of that, that they also do not want the sidewalk still built for another three months, because they are going to have to lower the drain in the middle of the road in order to actually be able to drain water, because there is an elevation issue and we can't drain the water, because I guess it's just -- there is not enough fall between point A and point B. S 0, they want to lower t he d rain and they wanted me to construct the sidewalks at that time, I guess, to lessen the impact of the whole construction process and blocking the road. So, in order for me to get water to landscape the front of the property, I wanted to, in my infinite wisdom, wanted to use the sidewalk corridor to plumb water up in there, so I wouldn't rip a perfectly good parking lot up to get water there and -- so, in other words, I wasn't able to complete any land -- well, the landscape plan as it was set because of that. I have installed and it could be checked by the City of Meridian, the water department, an irrigation meter and it is sitting there waiting for this project to continue and be furthered on. It's got a pipe stubbed up, so I have water to use, so I can irrigate the front portion of the property. I guess I somehow like would get their record, because if there has been a constant defending my sign that was remodeled, there is not a need for that last time we went through that. Actually, there was not a sign permit for the one that's on the building and it was my -- the gentleman at Planning and Zoning said it wouldn't be an issue, I just physically haven't paid the permit fee to do it, but it is not the drive-by sign on North Main that is in question, it is the sign that's on the building, just for sake of clarification. The sign that was on North Main was remodeled and refaced, reduced in height, and I was told at that meeting that there was no issues with that sign. The storage area that has not been landscaped or paved, obviously, there are issues from me not landscaping it. I have also talked to Anna and I guess there has been a change in the way Meridian Planning and Zoning Department regards storage lots and they are now going to permit a more economical way of -- of coding that to where the dust abatement is handled in such a way that they are happy, but it was not going to require me to pave it and that is one of the things, you know, due to the downturn of the economy and uncertain economic times, but it's, obviously, a substantial -- a lot of money difference between paving and using reclaimed or recycled asphalt, which was originally approved by Planning and Zoning, but denied by City Council. I guess I'd like to clear up the statement from Daunt. I have had some, I guess, problems with poor communication in that department, he was in contact with my architect at the time and we were trying to get an occupancy permit and we, actually, h ad a heck 0 f a time - - I honestly believe I was being ignored and not taken care of the way that it should be. I did get a visit from Kenny Bowers -- and he's in attendance, which should clarify the fire classification and it was a surprise visit and I -- and this dates back in the '97, '98 area, that there was an issue with not wanting to have welding equipment or cutting equipment back there. In fact, in the gap of -- between the two buildings had several cylinders that have welding gas in them and when Kenny went want by -- I have known him for a long -- you know, several years and he said that he would rather see the welding cylinders moved, the welding equipment moved out of the shop and not be used and I complied and when he came back by -- and this has been five or six years ago when they spot checked it, it has not been there Meridian City Council November 25, 2003 Page 48 of 67 from then and it has never been there since then, as far as welding equipment. So, hence, I think -- I think Duant's memory or -- I don't know what the issue is, why he e- mailed that over, other than, to be honest with you, possibly to create me more problems, because there is definitely issues with Daunt and personality issues with -- you know, having a problem with my project. So, I think the occupancy is accurate, we are just purely exchanging parts and storing cars. The use has changed from '97 to now. It is -- obviously, I wrote down that I would be working on cars and I would be storing cars. It has changed. We are working on a lot more cars, the ratios have changed, you know, probably flip-flopped. But as far as when we built it, the firewall was put in, it was built in accordance to the current building codes and I do not believe that there is any problem with the way that it's being used as far as the way that it was designed and built, because we have a barrier between the two buildings on purpose, so we wouldn't have to sprinkler the building and we had extensive talks about that, so I guess in conclusion w hat I would like to do is, 0 bviously, a nswer a ny questions that have -- that you -- that the Council may have. But I would like to request some additional time to get the sidewalks completed, like I have attempted to do, and that way I can also -- what I had discussed with Anna was to submit either an application to revise the CUP, because I still want to do the landscaping and I still want to use the railroad corridor. With the uncertainty of the economic times I wasn't sure if I wanted to complete the building addition at this time and I -- like I said, I would still like to do all the things -- all the other improvements and I would like to, actually, just extend an additional six month to get the sidewalks done and completed, because of the winter aspect of it. I should have completed plans. ACHD told me that they were going to complete the drainage in the next three months, which I would be immediately -- got a contractor ready to go to work. In fact, if you could zip back on your plan as far as on Bower Street and show a slide on that, the one that's facing Main Street. Actually, you can probably see them there. We were stopped by ACHD. Actually, we have already done the saw cutting and when you -- facing Main Street you can also see the saw cuts going across the road, but we are stopped because of the drainage issue and the elevation issue, they stopped us right before they started excavating. So, I believe even though the timeline has extended, I really don't believe that there has been an impact on anybody by not getting this done as timely as I should have and I don't believe that -- I believe it will also have an impact as far as -- because I won't -- I will actually be in a noncompliance because of the use of the railroad property, so it will create more issues by revoking the Conditional Use Permit and so I would ask to have a time increase to get that solution worked out, so I can work with the city and in get a financially feasible solution for me that works for our company and the city as well. Thank you. De Weerd: Thank you. Questions, Council? Nary: Madam President? De Weerd: Mr. Nary. Nary: Mr. Nesmith, one of the things that's on here was the sign permit and what you have said is that it's a different sign than what's in the exhibit. Meridian City Council November 25, 2003 Page 49 or 67 Nesmith: Yes. Nary: But you know 18 months ago that you didn't have a sign permit. Nesmith: Yes. Nary: And you said you just hadn't paid for it. Nesmith: It was -- I did contact -- honestly, it was -- I was spinning -- you know, not only running a business and doing the things that you do that, I just, honestly -- I had talked to the gentleman at P&Z, it was just a matter of paying the money like I did for the fence permit and everything else that we had done and, honestly, I don't have an excuse for why I didn't get it handled, I just need to pay the permit fee. Nary: You know where they are. Nesmith: I know where they are. Exactly and I need to get it done and there is -- Nary: And you have had notice of this since June. Nesmith: Uh-huh. Nary: And now we are in November and you still haven't done it. Why would we think that you need more time to do that? Nesmith: On the permit side? Nary: Right. Nesmith: I -- you know, honestly, I guess -- I thought the picture was larger than the permit, I guess, as far as -- because I knew I had -- I did also -- I forgot I did post a bond for the sidewalks and there should be a copy of that in your -- at least there was a copy of that in my packet that I got, so -- but I guess that was -- issue was -- I guess it was a bigger picture than, I guess I wasn't focusing on that, not that it is something that needs taken care of, but I just didn't focus on it. Nary: I looked at these other -- you have talked a lot about the sidewalk, but unless I missed what you said, I didn't hear a lot about the landscaping. Is the sidewalk tied to the landscaping? Nesmith: Yes. In order to get water to the front of the -- because it's all been paved and where the water meter is, it's -- in fact, I had -- well, my option to put in a -- so I don't have to pay by the gallon to water the -- or at least pay sewer to water the plants, I put an irrigation meter in that is on -- located on Bower Street and needs to proceed up - Meridian City Council November 25, 2003 Page 50 of 67 - actually, well, it would proceed up Bower and, then, up to the middle of Main Street in order to get water there, so I could irrigate it. Nary: And you have some evidence, besides what you're telling us, about the problems with the sidewalk and why the landscaping can't be completed until the sidewalk's completed, do you have some evidence to that? A letter from the highway district? A letter from somebody saying don't put a sidewalk in here right now? Something? Nesmith: No. I guess that is my -- I guess is, quote, unquote, being the developer, that was my issue as far as trying to make it as economically feasible as I could to not do things twice. In other words, not put a trench across the parking lot to run water and, then, also put sidewalks in. Nary: Now, I'm assuming, Mr. Nesmith, you understand if we revoke your Conditional Use Permit you can't operate your business there. Nesmith: Well, from what I understood from Anna, that we would -- it would go back to the previous CUP, but I don't know all the -- Nary: No. I guess if my business was riding on it, I guess I might hire somebody to get it done or knows, you know, how to get this accomplished and I guess I'm curious why you didn't. Nesmith: I honestly thought I did at Arrow Engineering and in trying to get -- no, that's Gibson and Associates, that's the architect that I hired to get this done as well. Nary: So, are you telling, then, under oath, then, that this building is not used for welding or any other fire code types of concerns that's been expressed by the planning department -- Nesmith: Under oath -- Nary: Let me finish my question. T hen, it's only used for storage pursuant to your application from 1997. Nesmith: Under oath, this is used for storage and auto repair. No welding. Nary: Well, it's not for auto repair, it's for storage. That's what your application says from '97, it's for storing vehicles that are waiting to be worked on. After work is completed vehicles will be stored in the facility. On an occasional basis it will be used for -- work will be performed on vehicles when not in use for storage on an occasional basis. What is occasional, then? You told me auto repair. That doesn't sound occasional. Nesmith: At the time that was -- but like I said at the time now the use has changed. In other words, 0 bviously, s till I have -- if you want tog et technical, I have two people Meridian City Council November 25, 2003 Page 51 of 67 working in four locations, that means 50 percent of the time you're going to have storage. Nary: And there still is no occupancy permit for that facility. Nesmith: I can't get one. No. Nary: Because it's not storage? Nesmith: I can't get one, because I was not -- because I didn't get the sidewalks completed, even though I posted a bond, because, then, they tied -- it was a very confusing issue, because, then, they tied the current CUP and, then, they got into legalities, because I had completed it and, then -- so I spent time and effort fighting -- or not fighting, but trying to resolve legality issues, when I should have been spending time trying to get the project finished. But they tied the current CUP requirements -- in other words, if I hadn't completed all the current CUP requirements, they won't give me an occupancy permit, which didn't make any sense to me, but that's why -- that's the explanation I was given. Nary: Now, the staff's testimony was that you have not, actually, bonded for these things and Condition 12 says you shall bond for these things. Which is it? Nesmith: Well, I bonded for the sidewalks and I have a copy right there that shows that I did. Nary: Okay. But-- Nesmith: But I did not bond for the whole project. Nary: Okay. But I'm looking at Condition 12 of the Findings of Facts that were approved back in 2002, it says the applicant shall provide surety for all required improvements, including paving, landscaping, irrigation, facade improvements, sidewalks, fencing, et cetera, prior to formal approval of the Findings of Facts and Conclusions of Law or, at a nninimum, prior to obtaining building permits in the amount of 120 percent for an insurance bond or 110 percent for a letter of credit for a cash bond. Have you done that? Nesmith: No. But I have not applied for a building permit either. In other words, my thought was if I applied for a bond I would also be doing that in the process of asking for a building permit to do the building remodeling or expansion. It was very confusing and frustrating and I would like to somehow -- honestly, I guess I need some direction from the Council and I would like to somehow -- even though I haven't been very timely, but, you know, be able to -- I wanted to be able to finish the '97 CUP, because I was being held responsible for it. I don't know. It very much confused me. They wouldn't give me an occupancy permit, because I was being held -- in other words, I needed to do the '02 CUP in order to get an occupancy permit, which I should have been able to get one Meridian City Council November 25, 2003 Page 52 of 67 after I posted a bond for the sidewalks, because that's the only thing that I needed to finish from the '97 to be done. All the landscaping was done for the '97 CUP, to my knowledge and I guess I would answer questions if you had that. Bird: Madam President? De Weerd: Mr. Bird. Bird: Mr. Nesmith, I believe the reason we come in and redone the CUP in 2002 was because we were so far behind on the 1997 CUP, that -- it wasn't just sidewalks left in the 1997. We questioned you at quite length in 2002 about this, made sure that you understood all the findings, all the stuff. You were very positive with it. You were going right out and get it done. I don't know. It just seems like we -- I don't know what we have to do to convince you that when you come in and get a Conditional Use Permit and have all these plans to do something, you got to go do it. I mean everybody that gets one of these has to do it. It's just -- we are not picking on you. I mean you stood here and testified in 2002 on May 7th that, you know, you agreed to all these conditions and findings and now having your -- and how many months later we don't have them done. But that's what happened in '97, too. I wasn't on the Council in '97, but I sat here -- I was getting ready to run and had come to every Council meeting and I sat here and listened to this testimony in '97, the same thing. You go out and do it in 2000, 2001, 2002. It hasn't been done. So, we come back in with another one. Now, you're going to have to go get another one. And it's like Mr. Nary says, if we -- if we pull this, revoke this, you can't run your business over there and your business has got to come first. You need to get the CUP in order. Or not do -- you know, not get one. I mean, you know, just not -- redo the thing or something. But, man, when you get one of these you have got to -- you have got to live by the conditions like everybody else does. When we make these conditions, we try to make them agreeable to both staff and to the applicant and you agreed to all these things and now you're wanting to back out or wait or something else and we have give you over a year. I don't know. I just, you know -- and this is the second time we have had it. Nesmith: I guess -- can I state -- I guess there is a -- I guess maybe it's a mistake on my part. I was told that I had to go through the CUP process in order to be able to know whether or not I could do what -- what I was thinking about doing. In other words -- and there doesn't seem to be a process as far a s an applicant t hat if you go -- in other words, propose an idea -- in other words, it has to go -- in Old Town it has to go before City Council to be approved, because you can't ask P&Z in order to know whether or not you can even do a project, whether or not I agree with what the findings are and I guess that may be what part of my -- I question what part of the problem is. In other words, I had to kind of propose all this, go through all the issues and, then, we had just a slight twist, some economy uncertainty that made me go, well, you know, I want to do part of it and, then, you know, midstream, and, then, back out on just the building remodel. I didn't have a problem with all the landscaping and all the other issues and, then, obviously, I wasn't very timely. But that's why I went through the process is because I was told I had to in order to know what I had to do. Meridian City Council November 25, 2003 Page 53 of 67 Bird: You truthfully -- you do have to go through it, but if you're going to go through it and spend that money and do that stuff, I mean we give you six years from '97, we give six years and you haven't completed 40 percent of what are the findings. I don't know if you have completed that percent and, you know, if you're going spend that kind of money and stuff to come in and go through this process, you should be ready to go, whether it's -- you hire somebody to do it or you do it yourself, you should be ready to go. I mean I know you're a good businessman, run a good business, but, you know, I feel you're jerking our chain, if you want to know the truth. I feel you are abusing the city process and we don't -- we have never let any person that I have -- the six years I have been on the Council we have not let people get away with CUP -- not doing them like we have you. We give you six years to do this and, like I said, you have not done it, John, and you know that, as well as I do, and it's -- I mean we can sit and put all the excuses we want up there, but I guarantee you, I have heard a lot more and I just -- I'm having a hard time buying it. Nesmith: Keith, I guess I respectfully disagree on some aspects, but I don't -- and I guess that is on the completion of the original CUP, because, you're right, on the current one there isn't really anything accomplished, because we didn't really even start the project, but I was trying to, as you said, encompass and try to do a clean slate and start over. I did make some errors in judgment initially when agreeing to the sidewalk projects and stuff without really knowing the full scope of what I needed to do. I really did. And that was my mistake and I had no idea what it took to, you know, not only cost wise, but manpower wise and who to hire and what to do and I did ignore it and not go about it the right way. I did really attempt -- when we did the current CUP made an effort to hire the right people and to get it accomplished and, unfortunately, it took longer than what I expected to get the sidewalk project done and I guess that's what I focused my efforts on, so I could be in compliance with the major, I guess, requirements of what the city wanted to do as far as landscaping and sidewalks and that type of thing, you know. But I agree with you, I didn't make -- originally, I guess, is where I made my errors in judgment, because I mean the developers that now do sidewalks in a -- in like a -- like all the ones that we see, cost wise to develop the large land chunks probably spend as much as I am on 180 feet of sidewalk. I don't know. I'm not a developer. I don't know the exact numbers. But I'm investing 27,000 dollars in 180 feet of sidewalk and I had no idea I was agreeing to do that and I guess there was initially some, you know, resistance to that when you really found out what I agreed to do and that was, obviously, my issue, but that I know is the issues that we are dealing with, but I really I guess -- I'm not trying to blow smoke, I want to resolve the issues, I want to move on and move through this stuff and get on with my life and not be talking to -- you know, as far as these issues. I really do. Nichols: Madam President? De Weerd: Mr. Nichols. Meridian City Council November 25, 2003 Page 54 of 67 Nichols: Mr, Nesmith, you have in front of you some plans a nd you referred -- you pointed at them or touched them when you talked about the sidewalk plans. Do you intend to use -- submit those as an exhibit that show the extent to which you're prepared to put in the sidewalk or -- Nesmith: I didn't know if you wanted them, but I do have copies that I could submit of those plans, yes. I did not know if you wanted to see them. Nary: Well, it's your evidence. You do what you want. I mean we have to make a decision on what -- the evidence we have. You can give it to us or don't. I don't care. That's up to you. Nesmith: I guess I just wanted to show you the progress of the current state of plans. Nichols: Mr. Nesmith, you're going to have to go back to the microphone if you're going to speak, though, because we have to have the tape. Nesmith: Okay. I guess I'm submitting this plan as the current revision according to ACHD of the requirements for the Bower Street addition for sidewalks. De Weerd: So, those will be stamped in as Exhibit No. 17. Nary: Madam President? De Weerd: Mr. Nary. Nary: Mr. Nesmith, just so -- I guess I'm having a hard time following. What you're telling us is that all of this landscaping, the landscaping along the railroad right of way, the landscaping along Main Street, and the landscaping on Bower Street, are all tied to the sidewalk on Bower Street. You can't do any landscaping on any part of this property until you build the sidewalk on Bower Street? Nesmith: I have no pressurized irrigation. None. I got to get water to it if I want it to live. Nary: And you have never once asked to modify this -- these conditions because of that? Nesmith: I guess I didn't. I didn't know I could. Nary: And you submitted this landscape plan that we are talking about as referenced in these findings, you had a landscape architect prepare that and he didn't tell you there is no water for any of it? I mean you submitted a plan. That's what they are saying you're not in compliance with is your own landscape plan that you submitted. Meridian City Council November 25, 2003 Page 55 of 67 Nesmith: Well, I guess assuming that I was able to get the process done -- in other words, the sidewalk project done, then, the water wouldn't have been an issue, so there wouldn't have been an issue with getting the plan done. In other words, just I didn't think that the chronological issue with getting the approval through ACHD was going to be that lengthy. That was my assumption. Bird: Madam President, if Mr. Nary's done, I have got a question or two. De Weerd: Mr. Bird. Bird: Mr. Nesmith, you seen -- the sidewalk on Bower Street has all to do with all the landscaping, because 0 f getting the water to it. Now, h ow a re you going tor un the water down Bower Street and get it up Main Street -- you're going to have landscaping up there and stuff. I understood it was stated -- I don't know whether it was by you or by staff, that you didn't want to cut through your parking lot; is that right? Nesmith: Uh-huh. Bird: I don't think ACHD or anybody is going to let you go up underneath their sidewalk on Main Street. Nesmith: No. I didn't have to do that. In other words -- Bird: Why can't you get the water up to the north? Nesmith: Can you -- maybe go to the screen or something on the Main Street deal? Backwards. Bird: Yeah. There we go. Nesmith: Well, if you -- the meter is right there. You go up the sidewalk and, then, the sidewalk part that I'm installing here would go right up here. In other words, the sidewalk is right -- the existing sidewalk is here. In other words, the landscaping isn't -- you can go right underneath the portion that you're tearing up. Bird: Okay. I understand that. Nesmith: And, then, you can just proceed over, and I can -- there is an elevation issue here, so if I didn't want to trench across here, I could bore -- because this is quite high and this is low right here and you can easily bore right underneath that pavement to get to that. De Weerd: So, is there a reason you can't lay the line and where the sidewalk is going to go and cover it? Meridian City Council November 25, 2003 Page 56 of 67 Nesmith: No, there isn't. I mean I guess I was -- I was just trying to do things once, you know, not tunnel it and, then, tear it up and, then, redo it is all, because you got the freezing issue, so you got to have your waterline substantially down, from what I understand, and so that was just my own decision to do -- you could do that and, then, repatch the asphalt across where the sidewalk is going to go. Correct. But I was just trying to -- as far as construction goes, you know, just do it once. De Weerd: They are two separate processes anyway. Nesmith: Well, when you tear up and excavate, because it's all paved here and we got to cut back -- De Weerd: Did you say you already did that? Nesmith: The only thing they did is saw it, and, then, we got stopped -- De Weerd: Oh. Nesmith: -- because the drainage issue. In other words, it's just a little saw cut that's about an eighth of an inch wide. Otherwise, I probably would already be running water lines and digging it, because -- if the asphalt got tore up. De Weerd: I guess my issue here, John, is we were told we were fools to have approved this in 2002 without asking you to dot he things -- requiring you to dot he things that you were supposed to do in '97 and you stood in front of us and asked for us to have faith that you would get them done and you would get them done in the time period that we were allowing you and it is 18 months later and none of it's done. Nesmith: I guess the final product isn't -- De Weerd: And so now you're asking us to give you another half a year, where you already had a year and a half and didn't get anywhere. You know, we -- I think we kind of really hung ourselves out there when we did this a year and a half ago, because we wanted to have faith and you told us that you would do it and we went on that faith and it's -- I don't know, I almost think I hear my kids in front of me telling me why they haven't cleaned up their room, they have all kinds of excuses and you're admitting that you delayed it too long, but, you know, the consequences were laid out a long time ago. You knew what you were risking. Bird: Madam President? De Weerd: Mr. Bird. Bird: Have you got an estimate from any -- a total estimate of what it's going to cost to justify this CUP? Meridian City Council November 25, 2003 Page 57 of 67 Nesmith: The-- Bird: I mean in dollars. Is it going to cost 100,000, 200,000, 10,000, 5,000, approximately, or what? Nesmith: For-- Bird: For everything to do the CUP. Nesmith: As it is, yeah, I did. Two hundred forty thousand. Bird: Two hundred forty. Like Madam President was saying, we were told we were stupid for approving it in 2002 when you hadn't done '97's and now you're asking us to keep going on here. What kind of a time limit? Six months? You can get that done in six months now. You have had 18 months and haven't got a thing accomplished, but you can do it in six months? Nesmith: The -- I guess what I wanted -- not the building, because that's, obviously, unrealistic, but the sidewalk project and get the water line and landscaping improvements, I can get that done. What I wanted to do within that six months is redo, I guess, the CUP and something after getting -- because what I had to do was get the CUP done, so I could get cost estimates to know how much it cost me, so what I guess I wanted to do is try to do it in a phase, if you will, so I could do all the landscaping and everything and, then, later do the building if I so desired. Bird: That's a great idea, but I can tell you, I have been in the construction business 42 years and you could have an estimate on that whole job and you could have it the day you come in here for a CUP, a good estimate. You had a good architect. Mr. Gibson could have got you an estimate price within five minutes and we give you six years, John. It isn't just a year. We give you six years, another Council, and, then, this -- the three 0 f us, plus Cherie went 0 ut 0 n a I imb. A nd it's eighteen months I ater a nd we haven't seen a thing done. And like I said earlier, I think you're trying to pull the wool over the city's eyes. I hate to see anybody not be able to operate their business and I know you -- and I know you're a good businessman and -- but I still think you're hoodwinking us. I think -- I mean I want to -- I'd like to see some contracts entered into to do that stuff and all this stuff and get it done or -- I don't know where to go from here. I'm really -- I'm disappointed, if you want to know the truth, after 2002 when you come in here and -- like Madam President said, you know, we took you at your word, we asked you if all the findings and everything was okay, are you satisfied to it and everything and you said, yeah, and you'd get right on it and here it is 18 months later and we are revoking it. I don't know, I'm really disappointed and embarrassed, if you want to know the truth. Nesmith: Well, I guess I apologize for that. It was not my intention, truly. Mr. Gibson did not -- you know, I guess it's irrelevant whether 0 r not it took five minutes 0 r two weeks to get the estimate, but I guess what I would want to know is -- I guess what I Meridian City Council November 25. 2003 Page 58 of 67 wanted to -- there is some issues on landscaping that are not able to be completed. because there is an issue with the sidewalk deal, there is a right of way issue. The building is built into Bower Street right of way and Bruce knows those things. I had to enter into a right of way agreement and. then, there was extensive issues on how wide they wanted the street and they had to decide on how -- like far into it is. And, actually, here after there isn't a ny room to dot his landscaping as a greed on, because it's all going to be sidewalk and building. In fact, the existing landscaping that was done right here is going to have to be deleted. But, you know, I would be willing to, I guess, you know, work with Planning and Zoning and phase it. The only thing that I don't have -- I guess the issue with the -- this is -- the paving was a substantial cost increase over the P&Z's original issue with, you know, being able to use reclaimed and if we could use reclaimed asphalt, that could be done and accomplished quite easily and I could get everything else done, other than the building reasonably sure and I would do whatever you needed to do to have surety of that. Bird: I think Anna said that the reclaimed was okay with her, didn't she? Anna? Nesmith: Other than the fact that the Findings of Fact say paved, not -- so, we have to be here in order to fix it is the issue. In other words, so if I move forward without you guys making a -- or Members of the Council making a ruling that I can undo that paved word, I have to go to the letter of the Findings of Facts. I don't have a choice. In other words, if I -- Bird: That's one item. How about the other dozen items that's the finding? Nesmith: Well, actually, we have -- actually, have -- I mean according to their list, we have about five. Bird: I just threw out a number. Nesmith: Yeah. I know. I'm sorry, Keith. I guess I -- like you, I want to get this behind me and move on. Nichols: Madam President? De Weerd: Mr. Nichols. Nichols: Mr. Nesmith, on the plans for the sidewalk improvements, they are dated the 21 st of November and it references an ACHD revision dated November 21 st. Do you have a letter or anything from ACHD that says those plans are approved? Nesmith: No, sir. I have -- those plans need to be submitted to Scott for approval and I just got them today. But as far as I know, there was an inlet-outlet deal as far as all of it is an issue with -- with the elevation, because there was no drainage on Bower Street. From Main to where you needed to dump it in, they weren't able to drain water, you Meridian City Council November 25, 2003 Page 59 01 67 know, there wasn't enough fall to go into the inlet of the deal -- of the culvert or whatever it is. De Weerd: Do you have any correspondence from ACHD that can back up what you're saying? Nesmith: Scott told me that you could call him, but I did not think to get anything in writing. But I would -- I could give you that, but he did say if you had any questions, that -- you know, to call, but I didn't -- De Weerd: Is there a way to indicate how long you have been working with them on this project to get it done? Nesmith: I don't know. That's a good question. I don't know. I started on it after we got the CUP done with James Gibson and I don't know if he could write me a statement -- but, in other words, after we redid the CUP is when I moved forward on -- and said, hey, okay, let's get going on this project and get it done. Nary: Madam President? De Weerd: Mr. Nary. Nary: Maybe I'll ask even a more direct question, Mr. Nesmith. I mean you don't have any letter from ACHD from Mayor June of 2002 saying don't build this sidewalk yet, we want to do this? You don't have any correspondence from them? Nesmith: Not that -- that just -- honestly, that just happened. In other words, he just told me that. In other words, we had been dealing with right of way issues, drainage issues, they initially had me putting in a vault in the road to drain the stuff into, because there wasn't enough room and, then, they decided against that and then -- I mean, honestly, I had an engineer doing some of the corresponding and maybe Arrow would be able to -- Arrow Engineering could supply some of that, because I hired them to handle that, you know, so they really weren't talking to me. I just talked to Scott, because they stopped the -- in fact, I had a permit to do it and, then, they stopped it, because -- I guess because of this issue, because lowering the deal, but I just found that out a week ago or so. De Weerd: Its eems like - - Bruce might have information regarding the situation 0 n Bower and at some point we can ask Bruce to come up. Now might be a good time and, then, we can ask Mr. Nesmith any further questions. So, if you'll go ahead and have a seat while I ask Bruce to come up. Is the testimony you provide the truth, the whole truth, and nothing but the truth, so help you God? Mills: It is. De Weerd: Thank you, Bruce. Please state your name. Meridian City Council November 25, 2003 Page 60 of 67 Mills: Bruce Mills, Ada County Highway District, Garden City, Idaho. I am not intimately familiar with all the issues on this project. However, I do know that on Bower Street I have conversations with Scott Reidel of our staff and what Mr. Nesmith said is true, that Bower Street -- the storm drainage line in Bower Street is very high and it's very difficult to be able to drain into that line. In fact, I believe our maintenance crews are going to be coming forward and doing a project in the next couple of months. Maybe John can verify the timing, I don't know, but I don't remember all the details, but I do know that ACHD is going to come along on Bower Street and we are going to put a new storm line lower than the existing one is now and when that's completed, then, Mr. Nesmith will be able to drain his property into Bower Street and I believe that work is going to be scheduled in the next couple two to three months. I don't know the exact date, unfortunately. De Weerd: Thank you, Mr. Bird. Bird: Bruce, what kind of a project -- how long is this project? Is it a month or a week or two weeks or what to do on Bower Street that -- you guys' work. Do you have an Idea? Mills: Councilmember Bird, I believe it's probably maybe a two week duration. It's not a long project, it's just a short stretch to fix the problem we have. Bird: Thank you. Nary: Madam President? De Weerd: Mr. Nary. Nary: Mr. Mills, and so has this situation -- the knowledge of it in trying to resolve this situation, has it existed for 18 months; do you know? Mills: Council member Nary, I don't know. I have had a conversation with Scott when we were trying to see if we could make the drainage work on the higher existing storm drain line maybe a month and a half, two months ago, but I don't have any knowledge of how long he has been in the permitting process with ACHD. De Weerd: Thank you, Mr. Nichols. Nichols: Yeah. Madam President. On the plan that Mr. Nesmith submitted, there -- apparently some dates -- or ACHD letters referenced in the plan that date back to 2001. So, there is -- it looks like the plan has been revised three times in reference to different letters from ACHD and that's on the face of the plan. Is that the typical way, Bruce, that they submit a plan and you guys submit your comments back to the engineer for drawing changes or do you know? Meridian City Council November 25, 2003 Page 61 of 67 Mills: Madam President, Mr. Nichols, that is the proper way to do it, to start out and, then, every time that there is a revision, then, that is dated on those plans. Nichols: Okay. Thank you. De Weerd: Thank you, Bruce. Bird: Madam President? De Weerd: Mr. Bird. Bird: I have got a question and I don't know who can answer it. Why wouldn't we have seen that at the CUP in 2002 if this -- if the notes go back to 2001? I mean you guys are a lot smarter than I am. Can any of you answer it for me? Nary: Don't know. De Weerd: I think don't know works. Powell: At this point -- excuse me, Madam President, Members of the Council. At this point, no, we don't know. It could have been that the sidewalk improvements that -- staff doesn't know. Bird: Madam President, let me throw out a deal. De Weerd: Mr. Bird. Bird: We could sit here -- we could sit here until 1 :00 o'clock in the morning arguing and debating this. As I said earlier, I hate to see anybody be out of their business. But, in the same token, I think we have been hoodwinked long enough. Staff, would you have any -- if we was to delay this two weeks, give Mr. Nesmith time to get some estimates together and some dates that he can -- people start doing all this stuff -- we know the sidewalk and stuff is not going to happened for a little bit, until -- but I mean that's not the only finding that he hasn't done. I mean I'm having a hard time finding something he has done. Nary: I think they did the trash enclosure. Bird: The trash enclosure. De Weerd: But is there -- Bird: And we, if the Council so desires, we can change that from paving up there on the railroad property to what Anna said is fine, the reclaimed oil. I would have no problem with that. But this gives us two weeks and, like I said, I hate to see anybody lose their business. I know Mr. Nesmith and his brother are very good business people, but I'm Meridian City Council November 25, 2003 Page 62 of 67 tired of being hoodwinked. So, if he doesn't come in with a good plan that satisfies you guys in two weeks, it's revoked as far as this councilman is concerned, if the other Council buys in on this. De Weerd: Mr. Nichols? I guess I would ask -- I think it's probably a very reasonable suggestion to bring in a time frame, cost estimates. Can we ask for a bonding for the improvements as a part of this activity or this process? Nichols: Madam President, Members of the Council, I think that as a condition for continuing the Conditional Use Permit versus revoking it, that you can impose reasonable conditions that are designed to insure compliance with the conditions. If, in fact, the building -- metal building is not being used for any kind of hot work or doesn't violate fire code, then, issues don't currently present a public safety issue. They do present a compliance with the zoning code issue. So, if Mr. Nesmith comes back with cost estimates, for example, and you tell him that he has a certain period of time to do those things and order to insure that he will do them he has to post a bond or a letter of credit equal to the 120 percent or the 110 percent of those estimates, then, I think that would be a reasonable finding in connection with any non-revocation, if that's what you chose to do. Or you could simply even defer your decision to see if he's -- you know, those sorts of things. So, if you want to continue it for two weeks for him to submit additional evidence that the Council can consider in its decision, that's appropriate. De Weerd: So, that additional evidence can be a statement from ACHD on how long you have been working with them and submit a time frame for the improvements that need to be done, cost estimates, and contracts of the work to be done. Nichols: Yeah. Madam President? De Weerd: Mr. Nichols. Nichols: Perhaps a more problematic issue is the issue of landscaping and landscape plan that's shown along Bower Street in that if that's an impossible condition to meet, then, he needs to be prepared to come up with alternative compliance on the remainder of the site, which may require a revised landscape plan or at least some changes to it. Maybe not revised, but some changes. So, he needs to be prepared to address alternative compliance in the landscape plan if it's impossible to put landscaping on Bower Street, something in writing from ACHD that details the time lines that are involved, including what Mr. Mills testified to, maybe even what their construction schedule is and when they have got it slotted to be constructed. All of those things would be appropriate for you to have evidence of before you make your final decision. De Weerd: He could work with staff on ironing out some of that. Nary: Madam President? De Weerd: Mr. Nary. Meridian City Council November 25, 2003 Page 63 or 67 Nary: Yeah. I guess I would agree with what's been discussed. The only thing I would suggest is rather than two weeks is to have three. With the short week and a holiday, I don't want to come back in two weeks and say we didn't have enough time. But, you know, I guess my only comment, Mr. Nesmith, is part of what I heard you say was they are picking on me and Mr. Whitman doesn't like me and I think some of this is motivated. Put that aside, because this is ridiculous. I mean Mr. Bird is absolutely right, 18 months is absolutely ridiculous. Not only are we giving you one chance to bring in evidence to prove what you're saying, what Mr. Mills has said, and to show us that you really put your money where your mouth is, your good faith is really truly going to present when we come back in three weeks. But, secondarily, we need to consider filing criminal charges against you. If you can't do this and comply with the sign permit requirements, then, we should give you a ticket and you should go explain to a judge downtown and maybe go pick up trash on the weekend instead of wasting our time. De Weerd: Mr. Nary? Nary: What? Bird: Madam President? Nary: It is a criminal violation to violate our city code. Bird: Madam President? Nary: So, we should enforce that by giving him a citation. If he doesn't want to comply, then, he can go downtown and explain it to a criminal court why he can't comply. We prosecute these people all the time. This is ridiculous. We shouldn't be here 18 month later after you promised us you'd complete it and if you don't like it, then, we can consider revoking it and we can also consider criminal charges. It is a crime. Get this done. Bird: Madam President? De Weerd: Mr. Bird. Bird: And I agree word for word with what Mr. Nary said, too. And I think Mr. Nesmith does, too. John, does this give you -- if we go to the 16th, you understand what we are wanting: right? You get with Wendy or Anna and you come in with a plan the 16th that's going to satisfy us. And I will make a motion here to continue this. And, if not, we won't go past the 16th, if you don't have a plan. I won't. I can't speak for the other three. But I won't go past it and I'm like Mr. Nary, if you're out of compliance, you should be written up just like everybody else is. And it is a deal. So, with that -- as long as you understand that, Mr. Nesmith, what I'm saying. You understand? He's shaking his -- yes. Meridian City Council November 25, 2003 Page 64 of 67 Powell: Before you make your motion, just to make sure that I understand. Does that also -- does that plan for completing those improvements include a landscape -- a bond for all the work that is yet to be included? Bird: Yes, ma'am. And this is to be worked out with your guys at the staff. If you're not a hundred percent in agreement with it, then, we probably aren't going to be. Okay? Or I'm not going to be I should say. De Weerd: And I think there is no reason why the sign thing can't be solved before, then, as well. Bird: That's right. I think there are a lot of things that need to be solved before the 16th of December. And there better be a good secure plan -- and I mean a plan. Not somebody getting up here telling me something. Anyway, with that I would move that we continue Public Hearing CUP 03-004, the request revocation of a Conditional Use Permit granted by the City of Meridian for John Nesmith for Meridian Automotive, 505 North Main, to December 16th, 2003. Nary: Second. De Weerd: Okay. It's been moved and seconded to continue Public Hearing CUP 02- 004, to December 16th, 2003. All those in favor say aye. All ayes. Motion carried. MOTION CARRIED: THREE AYES. ONE ABSENT. De Weerd: Council, just wanted to remind you about the parade. Nary: Yeah. What are we going to do? De Weerd: We are going to have go-carts by Boondocks on December 6th. And our city clerk has asked about what the desires are on the meeting for December 23rd. Personally, I would prefer not to have it. Is that what this note was? Berg: Yes. Madam President, just because 0 f t he holiday season and not knowing everybody's schedules and being out of town, I just wanted to double-check what's going on, because I would rather prepare Public Hearing notices for the proper dates, than to be having to do special notices to continue things or -- and in the past we have done several things, depending on how the days fall and we have canceled meetings right before Christmas and we have also canceled meeting because of people being gone in between the two holidays, too. Powell: Madam President, I had asked about this earlier, because the agenda for the one previous to that is pretty light, they were pretty easy issues. Is there any possibility we could renotice those forward? Because I really think there would be time. De Weerd: Are there meetings already scheduled for the 23rd?