HomeMy WebLinkAbout1979.09.19 CITY COUNCIL MINUTESRE: CITY ATTORNEY READ ORDINANCE 605
RE: ORDINANCE N0. 605
Barton Jensen
Jim Morris
AN ORDINANCE ENTITLED THE ANNUAL APPROPRIATION ORDINANCE OF THE CITY OF REXBURG,
IDAHO, FOR THE FISCAL YEAR OCTOBER 1, 1979, TO SEPTEMBER 30, 1980, AND APPROPRIAT-
ING TO THE SEVERAL DEPARTMENTS, OFFICES AND FUNDS OF THE SAID CITY GOVERNMENT
FROM THE REVENUE DERIVED FROM TAXES LEVIED FOR SAID FISCAL YEAR, AND ALL OTHER
SOURCES, SUCH SUMS AS MAY BE NECESSARY OR DEEMED NECESSARY BY THE MAYOR AND CITY
COUNCIL TO DEFRAY THE EXPENSES AND LIABILITIES OF SAID CITY FOR THE FISCAL YEAR
ENDING SEPTEMBER 30, 1980, ALSO SPECIAL APPROPRIATIONS FOR TEDRO FEDERAL FUNDS
FOR SAID FISCAL YEAR.
Thereupon it was moved by Councilwoman Darlene Blackburn and seconded by Warren
Porter that the rule regarding ordinances of a general and permanent nature to
be fully and distinctly .read on three different days be dispensed with atYd that
said Ordinance be numbered 605 and be passed and adopted as read.
Thereupon the Clerk was ordered to call the roll on said motion and the roll
call upon said motion was as follows:
Those voting AYE:
Those voting NAY:
Darlene Blackburn
Nile Boyle
Warren Porter
Morgan Garner
None
Absent:
The Mayor thereupon declared that the motion, having been passed by not less
than three-fourths of the Council, had been duly carried, and that said Ordinance
No. 605 was duly passed and adopted.
The City Clerk was directed to publish said Ordinance No. 605 in at least one
issue of the Rexburg Standard-Journal, a newspaper published in the City of
Rexburg, Idaho.
RE: ADJOURNMENT
Moved by Warren Porter, seconded by Morgan Garner and unanimously carried, that
the meeting adjourn.
//.~
Rose Bagley Ci erk
,7/)
Mayor John C. Porter
MINUTES OF THE. CITY COUNCIL MEETING
September 19, 1979
State of Idaho)
County of Madison(ss
City of Rexburg)
A meeting of the City Council for the Cite of Rexburg, Madison County, held
September 19, 1979, at the City Hall.
Present were the following: Mayor: John C. Porter
Councilman:
Councilwoman:
Jim Morris
Warren Porter
Barton Jensen
Morgan Garner
Nile Boyle
Darlene Blackburn
'~~'i Also Present: Mary Smith,
City Attorney
Rose Bagley,
City Clerk
RE: DOROTHY LANE ABUSE OF THE CITY SIDEWALKS
Dorothy Lane, a resident of Village Community Gardens, was present to complain
about the abuse of the City sidewalks. Ms. Lane walks back and forth to the
college and complained the sidewalks were constantly blocked by cars, bikes,
toys, garden hose, mud, .grass, and other debris. She also complained that.
people constantly were sprinkling the sidewalks when they water their yards.
She stated that it was hard to cross the road on the corner of Center and 1st
North because of the great number of cars using 1st North. She felt like there
should be a traffic light at that corner. Mayor Porter told her that the police
had made a number of traffic counts on that corner, and the number of cars counted
did not justify a light. Ms. Lane was told that a traffic light would cost
about $30,000. The Mayor told her that another study would be made and the City
would try to work something out. He suggested that she ride the senior citizens
bus. The police would be instructed to ticket cars that were parked on the
sidewalks, and contact the people in that area regarding debris on the sidewalks.
RE: RAY OAKEY REQUEST TO ABANDON STREET
Ray Oakey was present with a request to abandon th
Insurance Building and Ray Oakey's Service Station
that the new street going past the mall has taken
instructed to prepare an ordinance to abandon that
for utilities.
RE: CITIZENS PROTEST BEER LICENSE
e street between Farm Bureau
Mayor Porter pointed out
its place. Mary Smith was
street with a right-a-way
A group of citizens was present to protest the beer license that was issued at
the last Council Meeting to Brent Hebdon. The group's main objective was that
the senior citizens center, the Golden Living Center, is within 200 feet from
the proposed tavern and is a church because LDS church meetings are held there
regularly. They felt that on that basis alone the license should not be granted.
Roger Hoopes, attorney was representing the group. Brian Stanton was spokesman
for the group. He presented a petition by the people asking the council to
revoke the beer license. (attached) The group of citizens had had a previous
meeting to discuss it. Mr. Stanton read a statement that the group had prepared.
(attached)
President Rydalch of the Rexburg Stake was present to read a statement which he
had prepared stating that the people who live in the Golden Living Center have
been considered a church unit for many years. They nave their own meeting
schedule which is published in the Rexburg Standard-Journal newspaper along with
other church schedules. (statement attached)
The group of citizens, Presedent Rydalch, and their attorney stated that because
the Golden Living Center holds church services it could be declared a church,
making it against the law to have a bar that close to a church.
Roger Hoopes also stated that the Viking Motel is an accomodation for travelers,
making it Illegal to have a bar that close to the Viking Motel. Mayor Porter
said the Council has always thought that sentence referred to mibile home courts
and playgrounds. The old Idamont Hotel, now known as the Small Mall in Rexburg
had a tavern inside for years and it was for the accomodation of tourists and
travelers. The ordinance has never been applied to hotels and motels.
Attorney Roger Hoopes asked the Council to revoke the license or at least to
suspend it until the legal issues can be ironed out.
Mr. Hebdon's lawyer, Roger Cox, from Idaho Falls told the council that Mr. Hebdon
had complied with the laws for putting in a bar and had expended considerable
funds to start the business. He stated that the laws were to protect the minority
groups. He challenged the issue that the Golden Living Center was a church, but
that it is a privately owned commercial business. He questioned the fact that
the group was opposed to this tavern or just a tavern in Rexburg. Mr. Cox said
that he had written to the General Authorities at Salt Lake City to get a written
statement that the Golden Living Center was an authorized branch of the L.D.S.
Church, rather than a convenience. If it is a branch he would like to know who
is the branch president and secretary. He doesn't believe that the building has
a chapel, and has ever been dedicated as a church or has the tax exempt status
of a church.
Looking at the law, it stated that a church is dedicated primarily for church
purposes, he stated.
Mary Smith stated that the city code allows the council to revoke a license only
if the holder is convicted of a violation of city, county or state laws concern-
ing the license or bisiness.
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1
A Statement prepared and submitted by concerned citizens to the Rexburg
- City Council September 19. 1979•
The group of citizens that asked for a hearing on the proposed tavern
have asked me to read a statement for them.
First, we thank you for letting us come now. As you know, we are ozrli-
nary citizens who do not make a habit of reading legal notices the way
lawyers do. We have to have a more effective means of drawing our
attention to proposed city actions. For this reason we were unaware that
the council was considering issuing a beer license at this location.
We interpret the Council's granting us this time on the agenda as a sin-
cere desire to learn all things pertaining to the granting of this license
and a willingness to correct a prior decision if it be for the public
good. We believe that the interests of the public would be served if
the license were revoked for three reasons: The proposed tavern adjoins
a place of worship. The proposed tavern provides cause for the denial
of the license. The proposed tavern is not in a suitable location.
Let us begin by considering the issue of the church. From the Idaho
Legal Code 23-1011B we read, "No license shall be issued for, any place
where beer is sold or dispensed to be consumed on the premises, whether
conducted for pleasure or profit, that is within three hundred (300)
feet of any public school, church yr any other place of worship." Sec-
tion 13 of the City Ordinance 341 states, "No license shall be issued
to any retailer to sell or deliver draught beer, or bottled or canned
beer to be consumed on the premises where sold, at or in any place or
room within the distance of two hundred feet from the county court house,
or the Rexburg City Building, or any public library, schoolhouse, room
or place in which ary ka~nd of instruction or training is given to classes
of children of legal school age (as defined by the laws of Idaho), or
place provided for high school or college students to assemble for
receiving instruction or training of any kind, or any school or college
dormitory; or within two hundred feet of any church, or church building,
or any public park or playground, or any public campground, or premises
where camp cabins or cottages for housing or accomodation of tourists or
travelers are maintained.
These being the laws of the state and city, the question is whether the
Golden Living Center Branch of the Church of Jesus Christ of latter-day
Saints is a church or whether the place where forty to fifty residents
of the Golden Living Center worship each week is indeed a place of worship.
fio help answer that question, Dr. Larry Thompson, the most erudite scholar
in the Ricks College English faculty, prepared this statement on the
meaning of the word church.
2
The word "church" has a broad definition etymologically.
In fact, it has little to do with actual or specific structure
or dedicated edifice. '~cclesia," the Greek and Latin
original for our English wont "church" simply means "assembly"
or a "gathering of people" (Kittel's Theological Dictionary,
111, 501-536}. The German equivalent,-for example, also supports
a..broad reading of the word church: Gemeinde, an "assembly"
or "convention" of people (cf. Kassel's German Dictionary).
In the days of Paul both German and Greek definitions are
richly illustrated by reference to Acts 2: 46-~7. Notice the
specific structure, the "temple," and its functional equiva-
lent, "house" or "home " (see marginalia, King James version
in the same chapter) .
"And they (members of the church) continued daily
with one accord, in the tem le, and breaking bread
from house to house, did eat their meat with gladness
and singleness of heart.
Praising God, and having favour with all the people,
and the Lord added to the church daily such as should
be saved."
Here it is the Christians who are a church, not an edifice.
This fact is born out by Paul's epistles. For example, in his
first epistle to the Thessalonians he says, "Paul, and Silva-
neous, and Timotheus, unto the church of the Thessalonians
which is in God the Father and in the Lord Jesus Christ:
Grace be unto you and peace, from God our Father and the Lord
Jesus Christ."
Paul did not waste his time writing to a building, Indeed,
the early Christians did not have any buildings.
The Idaho Legal Code seems to support this broad definition
of the word "church" with its careful renderings
"No license shall be issued .where beer is sold
. .within:; three hundred (300) feet of a-Y public
school, church, or a_~ other Ulace of worshi ."
(see 23-1011B for full text, italics added .
The Rexburg Journal lists the Golden hiving Center in its Church
Directory.
President Rydalch, President of the Rexburg;Stake would like to make
a statement about the Golden Living Center Branch.
3
Insert President Rydalch's statement here
And one last statement, if a church building were destroyed. by flood
as in the case of ~ilfoni, Idaho, would there still be a church in
Wilford. I believe that members of the Wilford Want would say, "Yes."
Gentlemen, the Golden Living Center Branch of the Church of Jesus Christ
of latter-day Saints is a church, and the place where the members of the
church worship is a place of worship. Your actions should be in harmony
with these facts and laws.
Let us continue by considering whether the proposed tavern provides
cause for the denial of the license. The city ordinance 341 which I quoted
earlier was written in January of 1940, in a time before nursing, rest,
and retirement homes were common. We believe the city fathers drafted
this ordinance to protect the county court house, the city hall, schools,
churches, parks and tourists from the effects of a tavern. ~le.~.lso
believe they would have wanted to protect future residents of nursing,
rest and retirement homes. Another cause is that minors normall~r pass
and~also patronize the Hebdon's Little Giant. Patrons of the proposed
tavern would share the same parking lot with those of the drive-in, and
there would undoubtedly be some people who would leave the tavern to
eat in the drive-in. This mixing of patrons is not good. Also the
pro posed tavern adjoins a residence where six children live. At this
same residence is an apartment approved for Ricks College housing.
All of these provide you gentlemen with cause to revoke the license.
Let us conclude by considering whether the proposed tavern would be
built in a suitable location.
The block containing the proposed tavern on Second West is primarily
a residential block. Its eighteen residences contain one hundred and
twenty-seven people. It presently contains two businesses that require
commercial zoning, Taco Time and Hebdon's Little Giant.
The block immediately south of the proposed tavern is also primarily a
residential block. Its twenty-eight residences contain one hundred
and eleven people. It also contains the Third, Ninth, and Thirteenth
Ward. Chapel. There has been a corner grocery store, but it is no longer
in business.
The block immediately East of the proposed tavern is also a primarily
residential block. Its twenty residences contain four hundx~d and sixty-
seven people. Many of these private homes contain apartments for college
students. Arai there are three large apartment houses for students. The
4
largest would only be one half of a block from the proposed tavern.
There are three businesses operating in this block, Viking Motel, Blair's
Service, and Summers Upholstery. The Viking Motel is anly one hundred
and forty-seven feet from the property of the proposed tavern. Since
the Viking Motel provides accomodations for tourists or travelers, it is
added reason for denial of this license.
The Block Southeast of the proposed tavern is also a primarily residen-
tial block. Its thirteen residences contain five hundred and twenty-two
people. Most of the people living on this block are college .students.
The block contains Sober Scoiety Pizza, the Calaway Motel and a Used
Car Lot belonging to Erikson Pontiac.
This four block area surrounding the proposed tavern contains nearly
one thousand three hundred residents who would be adversely affected and
annoyed by the tavern, In addition, the block immediately north of the
proposed tavern is one of the city parks. The block northeah~t of the
proposed tavern is mostly college housing with three businesses, Circle K,
R and B Drive-in, and Ray Oakes Gas Station. This location is not the ~.
place to have draught beer.
The number of people living in this area means constant foot travel
that would be in the way of the increased traffic in and out of the
proposed tavern area, an area where visibility is hindered by the
Hebdon's Little Giant, which is close to the street, and the frequent
parking of semi-trucks near this spot. In addition, it is only one half
of a block to a very large college housing complex, and only one block
to Ricks College .
Councilman Garner in a recent newspaper article was quoted as saying that
the granting of the Hebdon license was inconsistent with prior decisions.
"There are only two other businesses on the block though the area is
zoned commercial. It's actually mostly a residential area. Mickelson's
tavern was refused on the same basis-- it was too near residences."
The new findings of our resident3.~1 survey indicate the correctness of
Councilman Garner's judgment To deny one application on the chiefly
residential issue and not another would not be consistent.
On the prior application you made the right decision, and the court
upheld you. Please do not put yourself in opposite and contradictory
positions on taverns in chiefly residential areas. Not to be consistent
in judgment would involve the city in two law suits, but defending
opposing positions.
We sincerely appreciate•~ the . open- mindedness- of`the~ mayor a~._ city
council in allowing us to present our views. We feel we represent the
overwhelming majority of residents in our area.
5
In summary, let me enumerate our position: We believe that the interests
of the public would be best served i~ the license were revoked. The pro-
posed tavern adjoins a place of worship. The proposed tavern provides
cause for the denial of the license. The proposed tavern is not in<a
suitable location. In addition, due to the unique characteristics of the
Golden Living Center understood by those living in and around it, but
noir understood by all to be a permanent home for these people, a place of
worship, and a place to receive their grandchildren, Ricks College students,
and other youthful visitors, we suggest that you revoke the Hebdon license.
Here is a petition from these good people to this effect. If you respond
to it, you will be in harmony with existing city and state orci3.nances.
You, as the city council, are authorized to use your discretion to protect
the citizens whom you represent. We await your vote tonight.
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OFFICE OF THE PRESIDENT
Septernber 19, 1979
Mayor John Porter
and Members of the City Council
City of Rexburg
Dear Mayor Porter:
RICKS
COLLEGE
I understand that tonight the City Council will be considering, perhaps
for the final time, the application that has been made to license a
tavern at 248 South 2nd West. The College Administration has been
approached by the citizens who oppose the granting of this license to
ask whether we have any position on this issue.
I am not sufficiently well versed in the language and precedents of the
city ordinances to know the exact nature of the City's authority in
granting or denying licenses. However, assuming that some authority
exists to implement the will of the Council under the circumstances of
this case, perhaps it may be helpful in your deliberations to know the
nature of our interest.
All students and employees at Ricks College have agreed to abide by the
School's Code of Honor, which, among other things, does not permit the
consumption of alcoholic beverages. In addition, one of the most important
characteristics of this school is the wholesome environment within which
the students study and live. Many of the students are sent here by
their parents precisely because of that environment. For many years,
one of the tremendous advantages of the College's being located in Rexburg
is that the community environment is so supportive of the desired school
environment. That community environment has played no small part in the
housing policies of the College, which have kept to a minirnum the construction
of on-campus dormitories and other facilities in view of the availability
of desirable off-campus housing in wholesome neighborhoods near the
campus.
Both the Administration of the College and representatives of our Board
of Trustees are very concerned about any change in either-the appearance
or the nature of the present city environment, particularly near the
places where our students live in off-campus apartments. Because the
location of the proposed tavern is so close to both the campus and
certain student housing units, we would urge the council not to approve
the proposed license.
Rexburg. Idaho 83440 /Telephone: Area Code 208-356-201 1
Mayor John Porter
September 19, 1979
Page 2
I realize that Ricks College is a private institution dedicated to
educational and charitable purposes. For that reason, we are generally
reluctant to speak out actively on the variety of matters that come
before the City Council. In this case, the interests of the School and
its students seem directly enough affected that we would not want any
silence on our part to be interpreted as a lack of concern. I also
realize that we have no authority to speak for the LDS Church either to
Church members or others on this issue. What I have said is simply the
view of the College Administration, but I hope our view will be entitled
to whatever weight it deserves as a segment of the community that has a
very large stake in the outcome of any decision affecting the local
environment.
Thank you for your consideration.
Sincerely,
h ~.c ~- -~~t~~~
Bruce C. Hafen
President
BCH/so
W2
Mr. Hoopes stated that in the new City Municiple Code book it stated that no
license shall be issued to sell beer in a residential district. The council
told him that it is zoned commercial not residential.
Mr. Hoopes cited Idaho Code 23-lOllb which was passed by the Idaho Legislative
in 1978 and governs tavern licensing. He said it isn't old enough for the courts
to have interpreted it yet. But its restriction on churches is much more loosly
worded than Rexburg's municipal ordinance and can easily pertain to the Golden
Living Center. It prohibits a tavern being licensed within 300 feet of a church
or any other place of worship.
The Council admitted it wasn't aware of the law when considering Hebdon's license.
Mayor Porter pointed our the statute goes on to say a license can be granted within
300 feet of a church with the approval of the governing body of the minicipality,
the City Council in this case. So the Council is within the bounds of the law
because it gave its approval when it granted the license.
Mayor Porter pointed out that when the Council approved the Hebdon's beer license,
it was unaware of the possible status of the Golden Living Center as a church or
place of worship. He noted that the council could not legally revoke the license,
since Hebdon has not violated any laws.
Mayor Porter also stated that the circumstances were different than when Darwin
Mickelson was denied a license for a beer bar on West Main, because Mickelsens
property was abutted on two sides by residential zones. Hebdon's property is
surrounded on four sides by commercially zoned property.
Brent Kinghorn, vice president of community services at Ricks College, read a
letter from Bruce Hafen president of the Ricks College. (letter attached) The
letter ask the council not to issue the license because the bar would alter the
wholesome enviroment of Rexburg for students. The letter stated that he was
speaking only for the college administration and not for the LDS Church.
Mayor Porter said that he thought the court would have to decide whether it is
a church. A motion was made by Nile Boyle that Mr. Hebdon be notified tomorrow
that there is a possibility that his beer license may be in violation of a State
Law and will have to be revoked if the Golden Living Center is proved to be a
church. Warren Porter seconded, All Aye.
RE: VERNON JENSEN REQUESTS PERMISSION FOR DAY CARE CENTER
Vernon Jensen was present to request permission to put a pre-school Day Care
Center in the old Peterson House of Carpets building on West Main. The Council
told him that if he had adequate parking and if it was in compliance to the fire
code the council would approve it. Mr. Jensen was advised to meet with the build-
ing inspector to make sure that it meets with the requirements.
RE: STREET IMPROVEMENTS
Dan Moulton and Morgan Garner gave a list of street improvements to the council
that need to be done, Total cost will be about $35,000. (list attached) Mayor
Porter said he would get in touch with Ned Sauers with H & K and see if the City
could extend the LID. That would make it possible to start immediately to repair
the streets. Nile Boyle moved that if the LID can be extended, that arrangements
be made to have H & K repair the streets, seconded by Morgan Garner, All Aye.
RE: CROSSING PROBLEM AT THE ADAMS SCHOOL
The principal of the Adams School and a concerned parent were present to discuss
the crossing problem at the Adams School. They would like to have a crossing
guard. The Mayor explained that with the 1% the City could not pay the entire
cost of a crossing guard, tha*_ the school would have to pay part of the cost.
The parent in attendance suggested that the parents help with the cost. Mayor
Porter suggested that maybe the Highway Department could program the light so
that the children would have more time to cross before the light changed, It
was decided that Chief Blair Siepert, Jerry Virgin and Mayor Porter would meet
and come up with a solution.
RE: SHERWOOD HILL SUBDIVISION
A motion was made by Darlene Blackburn and seconded by Jim Morris that the Plat
of the Sherwood Hills Subdivision with the approved changes be approved. All Aye,
RE: BILLS
Warren Porter made a motion to approve the bills. Jim Morris seconded. All Aye.
RE: ADJOURNMENT
Darlene Blackburn made a motion to adjourn. Nile Boyle seconded. All Aye.
Mayor John C. Porter
Hose Bagle
Clerk