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PROCEDURAL REMINDERS FOR COUNCIL 1-20-11 LMS

Last December, after a public hearing and review of city codes, the City Planning and Zoning Commission recommended that a Conditional Use Permit request from William Schlenk be denied.

As per a required step by step process, the P&Z recommendation and Findings of Fact documents were then forwarded to the Salmon City Council for review and a final decision. The council conducted an advertised public hearing January 19th to gather further comments on Schlenk’s Conditional Use Permit request.

City Planner Dan Maiyo confirmed that all required paper work was in place and that 26 property owners in the immediate vicinity of Schlenk’s Tendoy Street home had been notified of the proceedings. Maiyo said the Conditional Use Permit was being requested so that an already existing metal carport would be allowed to remain in place even though 25 foot city code set back requirements are not being met. The structure is located on the Tendoy Street side of the Schlenk home.

Schlenk explained the choice of placement had to do with a medical condition and that not only has this permitting process been a new experience for him, it has been a very long one. He said in July of 2010 he was told the carport would not meet set back codes if placed where planned and his building permit request was denied. Earlier he had been told the set back requirements would be met however those measurements were based on an erroneous assumption a fence line represented the actual property line.

In between set back distance being in compliance and not in compliance the prefabricated car port had been ordered and Schlenk lost his deposit when that order had to be cancelled.

Based on what he called ‘citizenry’ input he then applied for a Conditional Use Permit and in October, not wanting to lose another deposit, he had a metal carport installed on his property. That action placed him in non-compliance with city code due to the carport not being placed the proper number of feet from his property line.

Schlenk’s attorney Chase Slavin said his client is a retired school teacher and a good member of this community. He told the City Council that Schlenk was trying to follow proper procedure and did take the steps he was advised to take. Slavin reminded the council that the ‘conditional use’ would automatically end if Schlenk were to move or the home’s ownership were to change and said he hoped the council would allow Schlenk’s carport to remain where it is.

During the public testimony portion of the hearing Maiyo read two written comments in favor of allowing the carport and three speakers in attendance expressed their support citing the medical need, the well kept appearance of Schlenk’s property and his being an asset to the community. There were no neutral comments and no one spoke in opposition to the existing carport.

The hearing was officially closed and members of the council began clarification and deliberation discussions. Councilman Jim Kluesner asked if present city codes took medical conditions into consideration and Maiyo replied, “There is nothing in the code that addresses medical.” He said that in its deliberations the P&Z Commission could not make a finding based on medical issues because there is no criterion. Maiyo said the commission had to go strictly by code in making its determination.

The City Council has the authority to not accept P&Z recommendations however its reasoning for not accepting must be backed with a ‘findings of fact’ conclusion based on established codes.

City Attorney John McKinney had declared a conflict of interest due to having been Schlenk’s personal attorney for years and therefore would not participate in any discussions involving specifics related to Schlenk.

McKinney could however address procedural protocol to which, by oath of office, the council must adhere. He stated, “Any decision you make you’ve got to give your reasons and support them with conclusions of law. You’ve got to follow your [city] code to support your decisions.”

Several council members continued to maintain that medical aspects are a good reason to issue the Conditional Use Permit and they were repeatedly told that since there are no codes pertaining to medical situations, medical cannot be used as a basis to either set aside a P&Z recommendation or to grant a Conditional Use Permit. McKinney said, “You can’t do that. There’s nothing in the code to allow that.”

By law, the council now has 35 days in which to rule on Schlenk’s appeal. The council voted to make its decision at the February 2nd Salmon City Council meeting.

That meeting will begin at 6 PM February 2nd in the Salmon Valley Center Meeting Room.


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