Agenda

6:30 P.M. BOARD OF TRUSTEES MEETING

Mayor Marlin Sibell called the Regular Meeting of the Board of Trustees of the Town of Monument, El Paso County, Colorado, to order at 6:30 P.M. on Monday, April 3, 2000 at the Town Hall.

CALL TO ORDER
ROLL CALL

Mayor Sibell stated that the meeting is being moved to Grace Best Elementary School, 66 Jefferson Street due to over capacity. After gathering at the Grace Best Elementary School Cafeteria, Mayor Sibell continued with the agenda.

PLEDGE OF ALLEGIANCE

EXECUTIVE SESSION

Conference with the Town Attorney for the Purpose of Receiving Legal Advice Concerning the Application of -Transit Mix for Consideration of a Final PD Site Plan

Trustee Tenney moved to strike this Executive Session and the discussion item immediately following pertaining to the Transit Mix Application because the item has not been noticed as a proper public hearing; seconded by Trustee Schutz. Mayor Sibell stated that a public hearing is not needed for Executive Session. Trustee Schutz asked Town Attorney James Folkestad if Transit Mix has brought any legal action against the Town as of this date. Folkestad responded that they have not taken such action. Trustee Schutz voiced her opinion that the Board had taken final action on Transit Mix on February 28, 2000 and if Transit Mix has not yet taken legal action against the Town, they have missed their 30-day window of opportunity to do so. Folkestad stated that final action was not taken at the February 28, 2000 Board of Trustees meeting. A public hearing was held on the matter, and since this is a public meeting, it does not need to be noticed again as for public hearing. Trustee Bailey stated that a motion with several conditions attached was voted down, but this does not mean that the entire Application was denied. Trustee Schutz stated that it was clear that the motion showed that Transit Mix was denied, and she stated that she would like to delay discussion of this item until another legal opinion is given (since the Board has received a letter from Attorney Colvin with a legal opinion differing from Folkestad's.)

Mayor Sibell asked Folkestad whether a final decision was made or not on February 28, 2000 regarding Transit Mix and Folkestad responded that in his opinion it was not, and the 30 days does not start until the final decision has been made. Trustee Bailey stated that a motion must be made to either approve or deny Transit Mix to finalize it. Trustee Tenney questioned why the Board could not hold another properly noticed public hearing on this item to maintain public trust. According to Trustee Tenney, to receive further input and evidence on the matter would be wrong without a properly conducted public hearing. The vote on Trustee Tenney's motion to strike the Executive Session failed on a vote of 3 for and 4 against, with Mayor Sibell, Trustee Bailey, Trustee DeLaney and Trustee Vankekerix casting the dissenting votes. Trustee DeLaney moved to go into Executive Session for a conference with the Town Attorney for the purpose of receiving legal advice concerning the application of Transit Mix for consideration of a Final PD Site Plan; seconded by Trustee Bailey; the vote was 4 for and 3 against, with Trustee Tenney, Trustee Smith and Trustee Schutz casting the dissenting votes. Town Attorney James Folkestad informed the Board that they can not move into Executive Session because the motion did not receive at least two-thirds (5 votes) of the Board's support.

Trustee Bailey moved to discuss this Executive Session item in open session; seconded by Trustee Vankekerix. Trustee Tenney moved to amend this motion by Trustee Bailey to discuss matters of procedure only, not matters of substance; seconded by Trustee Smith; the vote failed on a vote of 3 for and 4 against, with Mayor Sibell, Trustee Bailey, Trustee Vankekerix and Trustee DeLaney casting the dissenting votes. Trustee Smith moved to indefinitely postpone this entire discussion; seconded by Trustee Tenney. A discussion followed. Folkestad stated that the Board needs legal advice on the issue and since the motion to go into Executive Session failed, this can be done in open session if the Board so directs. Trustee Bailey stated that bits and pieces of a previous Executive Session came out and were not properly stated, and this should be discussed in open session to prevent this from happening again. The vote on Trustee Smith's motion to postpone this discussion indefinitely failed on a vote of 3 for and 4 against with Trustee Bailey, Trustee DeLaney, Trustee Vankekerix and Mayor Sibell casting the dissenting votes. The vote on Trustee Bailey's motion to discuss the item in open session passed on a vote of 5 for and 2 against, with Trustee Smith and Trustee Tenney casting the dissenting votes.

Folkestad informed the Board that the Town has no "deemed denied" Statute or Ordinance and so the Board must make an affirmative motion to approve or deny Transit Mix. He has prepared two Resolutions, one for denial and one for approval, either of which the Board may amend if they so choose. Trustee Bailey asked Folkestad if he found adequate findings of fact against the proposal and Folkestad responded that the Resolutions for or against were prepared using criteria set forth in the Town Code, and it is up to the Board to decide whether the criteria have been met or not by the Applicant. Based on the facts presented at the public hearing, in the staff report or otherwise the Resolutions will support either of the findings the Board would like to make, but they may not necessarily be persuasive. Trustee Tenney questioned why the findings of fact were not prepared for the February 28, 2000 meeting and Folkestad responded that it is very difficult to draft findings of fact prior to a hearing and prior to the evidence revealed. Trustee Tenney asked whether the findings were made for the positive motion, and Trustee Schutz reminded that Mayor Sibell had written those findings. Trustee Schutz questioned why the Board is receiving the findings tonight and Folkestad responded that the findings have been in preparation for the entire month. Mayor Sibell asked Folkestad what the appropriate method is to resolve this question and Folkestad responded that the Board should either pass a Resolution to approve or a Resolution to disapprove Transit Mix. Mayor Sibell asked for a motion to disapprove the application for Transit Mix.

Trustee Tenney informed the Board that in the audience another Attorney is present who has written some legal advice to the Board, and he asked to hear from him concerning this matter. Trustee Tenney moved to hear another legal opinion from the audience; seconded by Trustee Schutz; the vote passed on a vote of 6 for and 1 against with Trustee Bailey casting the dissenting vote. Jim Colvin, Attorney retained by the Tri-Lakes Coalition stated his opinion that the Town is not required to take further action in denying the Transit Mix Final PD Site Plan. Colvin stated that the motion to approve failed 4 to 3 and then Mayor Sibell declared the meeting adjourned, constituting the end of the action. According to Colvin, the matter was quasi-judicial, the public hearing was properly noticed, it was discussed thoroughly, record was made, evidence was heard, the Board made findings and so the Board does not need an affirmative motion to deny the Transit Mix Final PD Site Plan. Colvin further stated that strict legalistic findings by Town Boards are not a prerequisite for how the Town conducts its business. Trustee Schutz stated that at the February 28, 2000 meeting she had cited five criteria from the Town Code that Transit Mix did not meet, and she questioned Colvin whether these were findings of fact. Colvin responded that he believes these constituted a finding of fact, and the 30 day period for Transit Mix to take legal action has expired.

Trustee Vankekerix asked Colvin whether he is representing the Tri-Lakes Coalition, and Colvin stated that he is retained by them. Trustee Vankekerix stated that the Tri-Lakes Coalition web page says that Trustee Vankekerix, Trustee Bailey and Mayor Sibell brought this item but this is not true. John Heizer, 17160 Colonial Park Drive, who created said web page affirmed that his web page said this and he gathered such information from people around Town. Folkestad stated that this item was brought back by the recommendation of legal counsel. Trustee Vankekerix stated that the Tri-Lakes Coalition needs to 'get its facts straight,' and Mayor Sibell stated that he did not see this item on the agenda until he received his agenda packet. Heizer apologized for the misrepresentation on his web page. Trustee Tenney stated that Trustee Bailey, Trustee Vankekerix and Mayor Sibell had an opportunity to vote tonight to continue this indefinitely for a proper public hearing but did not; however, the Board may reconsider that motion and take the item off of the agenda.

Attorney Vince Lindon, representing Bob Brewster of Transit Mix stated that regarding the 30 day rule, they respect the protocol put forth by the Board and they have had discussion with the Town's counsel regarding what was the final administrative action taken on February 28, 2000. In reviewing the Minutes of said meeting, it was determined that a motion was passed so that the Application with conditions did not pass but no denial motion was made. During the 30 day time period, they were advised that the item would be on the agenda for tonight and because final action has not been determined they have not made an appeal. They are requesting that the Board now approve or deny the application. Trustee Schutz questioned how Brewster could not believe that the application was denied when, in her opinion, clearly the message sent was that it was denied. Lindon stated that he understands this but he did not see it reflected in the Minutes that a motion was passed to deny the application, and they need a final determination included on the record stating the findings. Colvin stated his opinion that if the Board takes legal action the Applicant may go further and consider taking legal action, but if the Board takes no action, the 30-day period to file a lawsuit has run out and the Applicant has missed the deadline. Furthermore, according to Colvin if the Board approves the application, the entire February 28, 2000 hearing would be questionable. Trustee Tenney reiterated his opinion that if the Board notices this item again as a public hearing they would be on much firmer ground on the issue.

Mayor Sibell again asked Folkestad for a legal opinion and Folkestad stated that final legal action did not take place. He has advised the Applicant's attorney of this (in writing also) and this is what he has consistently been advising the Board. Folkestad does not see a real alternative but to go ahead with an affirmative motion. He set forth the example that had a motion been made to deny Transit Mix and the motion failed on a 4 to 3 vote, there would be no argument stating that it was approved. Trustee Tenney questioned what the harm is in having another public hearing to prevent any appearance of impropriety, and asked what the rush is. Mayor Sibell stated that he has deferred to legal counsel, and legal counsel has given his opinion. Mayor Sibell then asked for a motion to disapprove the Transit Mix application.

Trustee Bailey moved to approve Resolution 10-2000 approving the Transit Mix application, amended to include the following verbage to the first "Now Therefore" paragraph: "…and other public meetings Applicant is further limited to the amount of water usage based on the testimony by the Water Engineer at the Public Hearing of February 28, 2000, as well as agreeing in writing not to drive through Town for deliveries to the South end of Monument…" (read in its entirety into the record by Town Clerk Audrey Auer.) This motion was seconded by Trustee Vankekerix. Trustee Tenney stated that the following objections were made at the February 28, 2000 public hearing: traffic safety issues were inadequately addressed (would violate State access permits on and off Highway 105,) water usage amounts and availability of water were of concern (but were now addressed by Trustee Bailey in his motion) and the proposed intended upgrades required a Special Improvement District (people should be properly notified and given opportunity to present their ideas of how to be involved in this, but it has been done without notification of those who may be affected.) Trustee Smith moved to postpone this item indefinitely so as not to take action on it tonight; seconded by Trustee Schutz. Trustee Vankekerix voiced his opinion that the Town Attorney is paid to advise the Board and therefore they should heed his advice. Trustee Tenney again questioned what the urgency is and why it could not be properly noticed first, and Trustee Bailey stated that to do so would be to stall the Applicant, who has followed all of the guidelines and who deserves to be given a definite answer. Trustee Schutz voiced her opinion that she voted to deny the Application and the Applicant's 30 days have expired. Trustee Tenney stated that the Town people who would like a chance to say something should be given an opportunity to do so. The vote on Trustee Smith's motion to indefinitely postpone this item failed on a vote of 3 for and 4 against, with Trustee Vankekerix, Trustee DeLaney, Trustee Bailey and Mayor Sibell casting the dissenting votes. Trustee Bailey moved to stop discussion on the topic; seconded by Trustee Smith; motion carried unanimously. The vote on Trustee Bailey's motion to approve the amended Resolution 10-2000 failed on a vote of 3 for and 4 against, with Trustee DeLaney, Trustee Tenney, Trustee Schutz and Trustee Smith casting the dissenting votes.

Trustee Tenney moved to approve Resolution 11-2000 with the following additional findings of fact: the proposal violates the State's traffic permit for traffic on and off Highway 105, such a proposal requires a Special Improvement District which was not properly addressed by the Applicant (including not proper notification to all those property owners who were to be included,) the water situation was not properly addressed by the Applicant's proposal and the proposal inadequately addressed the traffic safety issues in reference to the intersection at State Highway 105 and North Washington Street; seconded by Trustee Schutz. Trustee Schutz requested that this motion be amended to also include the following finding: the proposed use would not meet the following purposes of a PD Planned Development District as listed in Town Zoning Ordinance Section 13-11-010: "To conserve the value of land, lessen the burden of traffic on streets and highways, and to provide for safe industrial sites involving a minimum strain on transportation." Trustee Tenney consented to the amendment to his motion as made by Trustee Schutz; the vote was approved with a vote of 4 for and 3 against, with Trustee Bailey, Trustee Vankekerix and Mayor Sibell casting the dissenting votes.

Mayor Sibell read a flyer which he found around Town regarding voting out of office those officials who voted for Transit Mix. The flyer stated that Trustee DeLaney voted for Transit Mix, but Mayor Sibell wanted to clarify that this was not the case and Trustee DeLaney voted against Transit Mix.

PUBLIC INPUT

None.

CERTIFICATION OF AGENDA

None.

REPORTS

Finance Committee

PPACG/Urban Area Policy Committee

Mayor Sibell informed the Board that an application was received by Georgette Elliot Van Egeren expressing her desire to serve on the PPACG. He suggested that this be discussed at the April 17, 2000 Board meeting.

Cemetery Committee

Parks and Landscape Committee

Public Works Committee

Trustee Tenney informed the Board that the next Public Works Committee meeting would be on Wednesday, April 5, 2000.

BRRTA Committee

Trustee Schutz informed the Board that at the last BRRTA Committee meeting, they discussed the safety issue of Leather Chaps Drive and Baptist Road, the intersection at Baptist Road and I-25 and Wal-Mart's obligation to help pay for upgrades to Baptist Road if they open a store at the Baptist Road location.

Town Manager

Rick Sonnenburg, Town Manager informed the Board that Michael Shoback, Town Treasurer has a brief report to the Board. Shoback stated that he has distributed reports on the Town's cash flow and cash balance changes for the months of January and February 2000 for the General Fund, Cemetery Fund, Water Fund, Petty Cash and Staff Cash Advances. Also included were reports on General Sales Tax collected for 1997 through 2000, both including Tri-View's portion and excluding Tri-View's portion. Furthermore, Shoback stated that he has prepared reports on Capital Investments year-to-date for Fiscal Year 2000 as well as those carried forward from prior years (the Board will receive such report monthly.)

Sonnenburg informed the Board that the U.S. Department of Justice requests that the Board approve a motion to continue funding the Grant-Funded Patrol Officer positions. According to Police Chief Al Sharon, currently three officers are Grant-Funded: one of them expires in October, 2000 and two of them continue to be Grant-Funded for a 3-year period, and one of the conditions of the Grant Program is to continue employing the Grant-Funded positions. Trustee Bailey moved to approve continuing to fund these three Patrol Officer positions; seconded by Trustee DeLaney; motion carried unanimously.

Secondly, Sonnenburg reminded the Board that at their last meeting, he was directed to contact the Colorado Municipal League (CML) regarding providing orientation for several area towns' new Board members here in Monument. According to Sonnenburg, CML declined this request, but there are two options: travel to Denver ($65.00 per person) or hiring an orientation speaker for the Town. The Board agreed that both options could be pursued, and staff was directed to research the costs involved in bringing a speaker in.

Next, Sonnenburg informed the Board that he has researched Historical Pictures of the Town and included in their packets is one which he personally prefers, but the Board may select a picture of their choice. Mayor Sibell suggested getting the public involved in the selection process of a picture to represent the Town and he directed Sonnenburg to research this and create a selection process for this purpose.

Sonnenburg informed the Board that the City of Colorado Springs Police Department's Domestic Violence Enhanced Response Team (DVERT) Program has a 100% grant for a "rural area" Crime Analyst. The analyst would be an employee of the Town housed in Colorado Springs and fully paid by the City of Colorado Springs. Sharon stated that once the grant expires, the Town would be under no obligation to continue this position. Trustee Bailey moved to approve authorizing Chief Sharon to: accept this position and to amend the Monument section of the memorandum of understanding to reflect this acceptance of this position; seconded by Trustee DeLaney; motion carried unanimously.

Another item which Sonnenburg brought to the Board's attention is that for the purchase of new vehicles, the Town may opt to lease purchase or cash purchase them. Both Shoback and Sonnenburg feel that the lease option is the better choice for the Town since the numbers are pretty much the same either way. Trustee Vankekerix moved to approve the lease purchase option for the purchase of new Town vehicles; seconded by Trustee Schutz; motion carried unanimously.

Sonnenburg informed the Board that included in their packets is a Well #8 tap sales report.

Lastly, Sonnenburg informed the Board that he has prepared a comparison of pay plan concepts, also included in their packets. Trustee Bailey suggested postponing discussion of this item until the April 17, 2000 Board meeting, and the rest of the Board agreed with this suggestion.

Town Attorney

Town Attorney Jim Folkestad informed the Board that the Monument Lake bill is continuing through the legislature, and should be on the floor of the Senate by next week. In addition, Folkestad stated that included in their packets is a memo regarding Public Notice requirements as well as a memo on the Board of Adjustments.

Council Comments

Trustee Vankekerix thanked Town staff for their hard work and voiced his opinion that they are going in the right direction.

Trustee Smith informed the Board that she had spoken with some residents of Jackson Creek who gave great compliments on the Police presence there.

PUBLIC HEARING

CONSENT ITEMS

Trustee Schutz moved to approve Consent Items A-C, which include the following: Minutes of the March 20, 2000 Regular Meeting of the Board of Trustees, Acknowledgment of the Minutes of the March 27, 2000 Regular Meeting of the Planning Commission and expenditures in the amount of $48,322.48; seconded by Trustee Bailey; motion carried unanimously.

DISCUSSION

Monument Skate Park

Robert Owens, Monument Skate Park Chairman informed the Board that the Committee has prepared a letter with a timetable of their plans for completion of the Skate Park (they hope to have it completed this summer.) Trustee Schutz also asked whether a Labor Day target date would be fair for the completion of the Skate Park, and Owens responded that this would be reasonable. Trustee Schutz questioned whether the Committee has enough funds to complete the project, and Kurt Ehrhardt of the Skate Park Committee responded that they have enough funds to finish the concrete portion of the project but the Town would need to follow through on their commitment and finish the parking lot, curb and gutter. The Board directed the Committee to work together with Sonnenburg regarding the Town's commitment on the project.

Tri-Lakes Cable – Mr. Stan Searle

Stan Searle, owner of Tri-Lakes Cable informed the Board that they have been in business since 1983 and they now wish to transfer control of their company to Adelphia Communications Corporation but they must receive Board approval in order to do so. Sonnenburg informed the Board that staff just received the letter this evening and he has not had a chance to review it. He suggested that the Board allow staff time to review Adelphia Communication Corporation per the Town's Franchise Ordinance and report to the Board on the matter at the April 17, 2000 meeting. The Board agreed with this suggestion. Steve Delgado of Adelphia Communication Corporation was also present at the meeting and informed Sonnenburg that he can address any questions that he may have regarding the company.

LIQUOR BOARD

Renewal of Liquor License for Columbine Gardens

Trustee Bailey moved to adjourn the Town Board and convene as the Liquor Board; seconded by Trustee Schutz; motion carried unanimously.

Mayor Sibell stated that a report from Patricia Fox, Police Department Clerk shows that there have been no liquor-related incidents at the establishment in the past year.

Trustee Bailey moved to approve the renewal of the liquor license for Columbine Gardens, Monument, Inc.; seconded by Trustee Schutz; motion carried unanimously.

Trustee Bailey moved to adjourn as the Liquor Board and reconvene as the Town Board; seconded by Trustee Schutz; motion carried unanimously.

EXECUTIVE SESSION

Trustee DeLaney moved to go into Executive Session for the consideration of the purchase of an interest in real property and for the consideration of the acquisition of a leasehold interest in real property; seconded by Schutz; motion carried unanimously.

There being no further business, at 9:45 p.m. Mayor Sibell moved to adjourn the meeting of the Board of Trustees.

Respectfully submitted,

Audrey Auer

Town Clerk