HomeMy WebLinkAboutMinutes-3 /13/2006• •
March 13, 2006
The Council of the City of Waterloo, Iowa, met in Regular Session at City Hall Council
Chambers, Waterloo, Iowa, at 5:30 p.m., on Monday, March 13, 2006. Mayor Timothy J.
Hurley in the Chair. Roll Call: Kincaid, Welper, Greenwood, Getty, Cole, Schmitt.
Absent: Gunderson.
Moment of Silence.
Pledge of Allegiance:
123115 - Schmitt/Kincaid
Councilperson Ron Welper.
that the Agenda, as amended to move Item li from the Consent Agenda to Item No.
17 on the regular agenda, for the Regular Session on Monday, March 13, 2006, at
5:30 p.m., be accepted and approved. Ayes: Six. Absent: Gunderson. Motion
carried.
123116 - Schmitt/Kincaid
that the Minutes, as proposed, for the Regular Session on Monday, March 6,
2006, at 5:30 p.m., be accepted and approved. Ayes: Six. Absent: Gunderson.
Motion carried.
Mayor Hurley read a Proclamation declaring March 19-25, 2006 as National
Agriculture Week.
CONSENT AGENDA
123117 - Schmitt/Kincaid
that the following items on the consent agenda be received, placed on file and
approved:
a. Resolutions to approve the following:
1 Resolution approving Schedule AP640, pp. 1-74, dated March 13, 2006, in
the amount of $656,526.86, a copy of which is on file in the City Clerk's
office, together with recommendation of approval of the Finance Committee.
Resolution adopted and upon approval by Mayor assigned No. 2006-186.
2. Communication from Police Chief transmitting request of Easter Seals Camp
Sunnyside to hold Pony Express Ride on April 14, 2006, with route to begin
along Lafayette Road from the city limits of Evansdale/Waterloo to 6th
Street near the Black Hawk County Courthouse then to Mulberry Street to
the front entrance of City Hall.
Resolution adopted and upon approval by Mayor assigned No. 2006-187.
3 Communication from City Clerk transmitting request of John W. Miller for
an exception to burning yard waste to burn approximately 2% acres of
prairie grass located on South Kimball Avenue behind 145 Blaine Road on
the edge of the city limits during March/April 2006, together with
recommendation of approval of Leisure Services Director, Fire Chief and
Superintendent of Waste Management Services.
Resolution adopted and upon approval by Mayor assigned No. 2006-188.
b. Motion -to approve the following:
1. Communication from Mayor Hurley transmitting reappointment of Terry Kuntz
to the Water Works Board, with term expiration date of January 12, 2012.
2. Communication from Mayor Hurley transmitting appointment of Noel
Thornberry to the Telecommunications Commission, with term expiration date
of December 1, 2008 and reappointment of Daniel Evanson, with term
expiration date of December 1, 2008 and reappointment of Janet Longus,.
with term expiration date of December 1, 2007.
3. Mike Moore, Fire Department Instructor, to teach Confined Space class in
Mason City, Iowa on March 6-8, 2006, with costs not to exceed $260.00,
including use of city vehicle.
4. Steve Grimm, Fire Department Instructor, to teach Technician Level
Recertification Class in Boscobel, Wisconsin on March 15-16, 2006, with
costs not to exceed $300.00, including use of city vehicle.
March 13, 2006 Page 2
Consent Agenda continued
5. Missy Ludwig, Police Officer, to attend 2006 Multi State Conference on
Drugs, Violence and Victims in Dubuque, Iowa on April 11-13, 2006, with
costs not to exceed $380.40, including use of city vehicle.
6. Donna Lesyshen, Waterloo Housing Partnership Coordinator, to attend
NeighborWorks Training Institute in Dallas, Texas on April 2-8, 2006, with
costs not to exceed $2,705.00.
7. Lou Ball, Firefighter, to make a FIRE PALS presentation in Atlanta,
Georgia on March 22-24, 2006, with costs not to exceed $1,105.00.
c. Beer License Permit Application
Class B
The Grand Hotel, 300 West Mullan Avenue (Renewal) (Expires 4/12/07) (Includes
Sunday Sales)
d. Beer/Liquor License Permit Application
Class C
Catherine Doyle's Pub, 504 Sycamore Street (Renewal) (Expires 3/7/07)
(Includes Sunday Sales)
e. Beer/Wine License Permit Application
Special Class C
Waterloo Bucks, 850 Park Road (Renewal) (6 months -3/20/06
(Includes Sunday Sales)
9/20/06)
f. Liquor License Permit Application
Class A
Sunnyside Country Club, 1600 Olympic Drive (Renewal) (Expires 4/13/07)
(Includes Sunday Sales)
g.
Outdoor Service Area Application
Waterloo Bucks, 850 Park Road
Sunnyside Country Club, 1600 Olympic Drive
BJ's Bar and Billiards, 110 Ida Street
h. Outdoor Cafe Application
CU And The Cellar, 320 East 4th Street
i. Fireworks Display Application
Waterloo Bucks Baseball Club, Riverfront Stadium, on June 1, June 17, July 8,
August 11, 2006
j. Bonds.
Ayes: Six. Absent: Gunderson. Motion carried.
HEARINGS & BIDS
123118 - Kincaid/Welper
that proof of publication of notice of public hearing on F.Y. 2006 East Side
Sanitary Sewer Interceptor, Contract No. 707, as published in the Waterloo
Courier on February 24, 2006, be received and placed on file. Ayes: Six.
Absent: Gunderson. Motion carried.
123119 - This being the time and place of public hearing, the Mayor called for written
and oral objections and there were none.
Schmitt/Kincaid
that the hearing be closed. Ayes: Six. Absent: Gunderson. Motion carried.
123120 - Kincaid/Welper
that "Resolution confirming approval of plans, specifications, form of contract,
etc. in conjunction with F.Y. 2006 East Side Sanitary Sewer Interceptor,
Contract No. 707", be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-189.
123121 - Kincaid/Welper
that "Resolution ordering construction in conjunction with above said project",
be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-190.
• •
• •
March 13, 2006 Page 3
Hearings & Bids continued
123122 - Kincaid/Welper
to receive, file and instruct City Clerk to open and read bids and refer to City
Engineer for review:
Bidder Bid Bond Bid Amount
Van Hauen & Associates, Inc., Clive, IA 5W $572,993.00
Ayes: Six. Absent: Gunderson. Motion carried.
123123 - Getty/Cole
that proof of publication of notice of public hearing on F.Y. 2006 Street
Reconstruction Program, Contract No. 705, as published in the Waterloo Courier
on February 24, 2006, be received and placed on file. Ayes: Six. Absent:
Gunderson. Motion carried.
123124 - This being the time and place of public hearing, the Mayor called for written
and oral objections and there were none.
Getty/Schmitt
that the hearing be closed. Ayes: Six. Absent: Gunderson. Motion carried.
123125 - Getty/Schmitt
that "Resolution confirming approval of plans, specifications, form of contract,
etc. in conjunction with F.Y. 2006 Street Reconstruction Program, Contract No.
705", be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-191.
123126 - Getty/Schmitt
that "Resolution ordering construction in conjunction with above said project",
be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-192.
123127 - Getty/Schmitt
to receive, file and instruct City Clerk to open and read bids and refer to City
Engineer for review:
Base + Alt A Base + Alt B
Bidder Bid Bond Bid Amount Bid Amount
Aspro, Inc. & Subsidiaries, Waterloo, IA 5% $3,057,099.01 No Bid
Peterson Contractors, Inc., Reinbeck, IA 5% $3,128,757.18 No Bid
Ayes: Six. Absent: Gunderson. Motion carried.
HEARINGS
123128 - Cole/Schmitt
that proof of publication of notice of public hearing on request of Jerry Quint
and Stacey Folkers to rezone from "A-1" Agricultural District to "R-1"
Residential District property generally located at 5640 Kimball Avenue for the
purpose of residential development, as published in the Waterloo Courier on
February 28, 2006, be received and placed on file. Ayes: Six. Absent:
Gunderson. Motion carried.
123129 - This being the time and place of public hearing, the Mayor called for written
and oral objections and there were none.
Cole/Schmitt
that the hearing be closed and recommendation of approval of Planning,
Programming and Zoning Commission be received and placed on file. Ayes: Six.
Absent: Gunderson. Motion carried.
March 13, 2006 Page 4
Hearings continued
123130 - Cole/Schmitt
that "an Ordinance amending Ordinance No. 2479, as amended, City Zoning
Ordinance by adding Subsection No. 377 to Section 2A-5, Rezoning Certain
Property", be received, placed on file, considered and passed for the first
time. Ayes: Six. Absent: Gunderson. Motion carried.
123131 - Cole/Schmitt
that rules requiring ordinances to be considered and voted for passage at two
prior meetings be suspended. Ayes: Six. Absent: Gunderson. Motion carried.
123132 - Cole/Schmitt
that "an Ordinance amending Ordinance No. 2479, as amended, City Zoning
Ordinance by adding Subsection No. 377 to Section 2A-5, Rezoning Certain
Property", be considered and passed for the second and third times and adopted.
Ayes: Six. Absent: Gunderson.
Ordinance adopted and upon approval by Mayor assigned No. 4799.
123133 - Welper/Kincaid
that proof of publication of notice of public hearing on request of Michael
Beckman to rezone from "R-2" Residence District to "C-2" Commercial District
property generally located at 504 Riehl Street for the purpose of an auto sales
display lot on a portion of the existing parking lot, as published in the
Waterloo Courier on February 28, 2006, be received and placed on file. Ayes:
Six. Absent: Gunderson. Motion carried.
123134 - This being the time and place of public hearing, the Mayor called for written
and oral objections and there were none.
Councilperson Getty asked about a PA system and if the lighting would be placed
so it is not directed into the residential areas.
Don Temeyer, Community Planning and Development Director, responded the
ordinance does address the lighting, and the applicant cannot direct the
lighting toward the residential areas.
Mike Beckman, 1011 Barrington, Cedar Falls, responded there would be no outside
PA system.
Welper/Kincaid
that the hearing be closed and recommendation of approval of Planning,
Programming and Zoning Commission and oral comments be received and placed on
file. Ayes: Six. Absent: Gunderson. Motion carried.
123135 - Kincaid/Cole
that "an Ordinance amending Ordinance No. 2479, as amended, City Zoning
Ordinance by adding Subsection No. 378 to Section 2A-5, Rezoning Certain
Property", be received, placed on file, considered and passed for the first
time. Ayes: Six. Absent: Gunderson. Motion carried.
123136 - Welper/Kincaid
that rules requiring ordinances to be considered and voted for passage at two
prior meetings be suspended. Ayes: Six. Absent: Gunderson. Motion carried.
123137 - Welper/Cole
that "an Ordinance amending Ordinance No. 2479, as amended, City Zoning
Ordinance by adding Subsection No. 378 to Section 2A-5, Rezoning Certain
Property", be considered and passed for the second and third times and adopted.
Ayes: Six. Absent: Gunderson.
Ordinance adopted and upon approval by Mayor assigned No. 4800.
0
• •
March 13, 2006 Page 5
Hearings continued
123138 - Schmitt/Cole
that proof of publication of notice of public hearing on Amendment to Zoning
Ordinance, Ordinance No. 2479, as amended, to eliminate the 2 -acre minimum tract
size for "C -P" Planned Commercial District requests that are within the
Consolidated Urban Revitalization Area (CURA) or Enterprise Zone area, as
published in the Waterloo Courier on March 3, 2006, be received and placed on
file. Ayes: Six. Absent: Gunderson. Motion carried.
123139 - This being the time and place of public hearing, the Mayor called for written
and oral objections and there were none.
Don Temeyer, Community Planning and Development Director, stated over the years
as areas were zoned commercial, neighborhoods wanted to be more active and
wanted guarantees if the plans changed they will have input into the proposed
changes. In a Planned Commercial area if they changed the conditions of the
site plan, the change would have to go before the Planning, Programming and
Zoning Commission, and the neighborhoods and council would be able to review it.
That works very well in areas like the Crossroads where there might be lots the
size of 10 or 20 acres or maybe a 100 acre development, but in the older parts
of the community the blocks are 2 acres. This amendment will encourage in -fill
development in the older parts of the community, and at the same time allow the
neighborhoods input and allow the council to review the plans as they change.
Schmitt/Kincaid
that the hearing be closed and recommendation of approval of Planning,
Programming and Zoning Commission and oral comments be received and placed on
file. Ayes: Six. Absent: Gunderson. Motion carried.
123140 - Schmitt/Kincaid
that "an Ordinance amending Ordinance No. 2479, as amended City Zoning
Ordinance, by eliminating the 2 -acre minimum tract size for "C -P" Planned
Commercial District requests that are within the Consolidated Urban
Revitalization Area (CURA) or Enterprise Zone area", be received, placed on
file, considered and passed for the first time. Ayes: Six. Absent:
Gunderson. Motion carried.
123141 - Schmitt/Cole
that rules requiring ordinances to be considered and voted for passage at two
prior meetings be suspended. Ayes: Six. Absent: Gunderson. Motion carried.
123142 - Schmitt/Cole
that "an Ordinance amending Ordinance No. 2479, as amended City Zoning
Ordinance, by eliminating the 2 -acre minimum tract size for "C -P" Planned
Commercial District requests that are within the Consolidated Urban
Revitalization Area (CURA) or Enterprise Zone area", be considered and passed
for the second and third times and adopted. Ayes: Six. Absent: Gunderson.
Ordinance adopted and upon approval by Mayor assigned No. 4801.
UNFINISHED BUSINESS
123143 - Greenwood/Welper
that communication from Superintendent of Traffic Operations transmitting
recommendation of award of contract in the amount of $36,806.00 to Witham Auto
Center of Waterloo, Iowa in conjunction with Purchase of Full Size Pickup Truck
and Service Body, be received, placed on file and "Resolution approving award of
said contract", be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-193.
123144 - Greenwood/Welper
that communication from Superintendent of Waste Management Services transmitting
recommendation of award of contract in the amount of $137,300.00 for two
Curbtender boxes to Wayne Engineering of Cedar Falls, Iowa to correct amount
awarded on August 22, 2005 in conjunction with Purchase of Two Automated Garbage
Trucks for Waste Management Services, be received, placed on file and
"Resolution approving award of said contract", be adopted. Ayes: Six. Absent:
Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-194.
March 13, 2006
REPORTS
123145 - Welper/Kincaid
that communication from
notification of letting of
I-380 from I-80 North to U
file. Ayes: Six. Absent:
DOCUMENTS
123146 Cole/Schmitt
Page.6
Iowa Department of Transportation transmitting
a Portland Cement Concrete (PCC) patching project on
.S. 218 on March 21, 2006, be received and placed on
Gunderson. Motion carried.
that communication from Senior Planner transmitting request of Betty Seamans for
tax exemptions totaling $47,800.00 for 1735 Lafayette Street located in the
Consolidated Urban Revitalization Area, together with recommendation of
approval, be received, placed on file and "Resolution approving said request",
be adopted and City Clerk instructed to notify Black Hawk County Assessor of
same. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-195.
123147 Cole/Schmitt
that communication from City Planner transmitting an agreement with Thomason and
Associates of Nashville, Tennessee to provide professional services at a cost
not to exceed $24,490.00 to prepare a Comprehensive Historic Preservation Plan
to set goals and priorities for identification, evaluation and treatment of
historic properties within the city, be received, placed on file and "Resolution
approving said agreement", be adopted and Mayor authorized to execute same.
Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-196.
123148 - Cole/Schmitt
that communication from Community Planning & Development Director transmitting
Quit Claim Deed from Isaiah LaBeaux III for acquisition of property located at
205 Independence Avenue, be received, placed on file and "Resolution accepting
said deed", be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-197.
123149 - Cole/Schmitt
that communication from Community Planning & Development Director transmitting
Quit Claim Deed from Mary Louise Bryant Wilder and James Wilder for acquisition
of property located at 502 Mobile Street, be received, placed on file and
"Resolution accepting said deed", be adopted. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-198.
NEW BUSINESS
123150 - Schmitt/Greenwood
to instruct Leisure
form of contract,
received, placed on
carried.
123151 Schmitt/Greenwood
Services
etc. in
file and
Director to prepare bid documents, specifications,
conjunction with 2006 Right of Way Mowing, be
approved. Ayes: Six. Absent: Gunderson. Motion
that bid documents, specifications, etc. in
Mowing, be received and placed on file.
Motion carried.
123152 - Schmitt/Greenwood
conjunction with 2006 Right of Way
Ayes: Six. Absent: Gunderson.
that "Resolution preliminarily approving bid documents, specifications, etc. in
conjunction with above described project", be adopted. Ayes: Six. Absent:
Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-199.
• •
• •
March 13, 2006 Page 7
New Business continued
123153 - Schmitt/Cole
that "Resolution setting date of hearing on bid documents, specifications, etc.
as March 27, 2006 at 5:30 p.m. in the City Hall Council Chambers and taking of
bids on above described project", be adopted and City Clerk instructed to
publish notice of same. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-200.
123154 - Schmitt/Greenwood
to instruct Superintendent of Waste Management Services to prepare bid
documents, specifications, form of contract, etc. in conjunction with Chemical
Feed System for Biosolids Filter Building Operations at Easton Avenue Wastewater
Facility, be received, placed on file and approved. Ayes: Six. Absent:
Gunderson. Motion carried.
123155 - Schmitt/Greenwood
that bid documents, specifications, form of contract, etc. in conjunction with
Chemical Feed System for Biosolids Filter Building Operations at Easton Avenue
Wastewater Facility, be received and placed on file. Ayes: Six. Absent:
Gunderson. Motion carried.
123156 - Schmitt/Greenwood
that "Resolution preliminarily approving bid documents, specifications, form of
contract, etc. in conjunction with above described project", be adopted. Ayes:
Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-201.
123157 - Schmitt/Cole
that "Resolution setting date of hearing on bid documents, specifications, form
of contract, etc. as March 27, 2006 at 5:30 p.m. in the City Hall Council
Chambers and taking of bids on above described project", be adopted and City
Clerk instructed to publish notice of same. Ayes: Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-202.
123158 - Schmitt/Greenwood
to instruct Superintendent of Central Garage to prepare bid documents,
specifications, form of contract, etc. in conjunction with Purchase of Eight
Patrol Cars, be received, placed on file and approved. Ayes: Six. Absent:
Gunderson. Motion carried.
123159 - Schmitt/Greenwood
that bid documents, specifications, form of contract, etc. in conjunction with
Purchase of Eight Patrol Cars, be received and placed on file. Ayes: Six.
Absent: Gunderson. Motion carried.
123160 - Schmitt/Greenwood
that "Resolution preliminarily approving bid documents, specifications, form of
contract, etc. in conjunction with above described project", be adopted. Ayes:
Six. Absent: Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-203.
123161 - Schmitt/Cole
that "Resolution setting date of hearing on bid documents, specifications, form
of contract, etc. as March 27, 2006 at 5:30 p.m. in the City Hall Council
Chambers and taking of bids on above described project", be adopted and City
Clerk instructed to publish notice of same. Ayes: Six. Absent; Gunderson.
Resolution adopted and upon approval by Mayor assigned No. 2006-204.
123162 - Greenwood/Schmitt
that the Theater License Application for Fantasy Island Amusements, 1850 Airline
Highway, be approved.
March 13, 2006
New Business continued
Prior to a vote on the above motion, the following comments were heard.
Welper/
Page 8
that the above theater license application be tabled indefinitely due to the
pending lawsuit and to investigate further if this is the proper license.
Jim Walsh, City Attorney, stated it is his understanding there is a pending
application that has never been withdrawn for the same address by the same
applicant and now it has been re -filed as a theater license application. Mr.
Walsh stated there is a conflict between the pending applications or at best the
ambiguity of the applications. Mr. Walsh stated there have been at least some
preliminary discussions to clear up that ambiguity, but the applicant has
declined to clear it up, and at this point this conflict is still in existence
and it is not clear whether this is an adult use facility or not an adult use
facility.
Robert Hearity, 524 Mulberry Street, attorney representing Earl Baugh and
Fantasy Island Amusement, stated there is no confusion, and the city has been
totally advised as to what the second application is about. Mr. Hearity stated
that he sent a letter to Dave Zellhoefer many weeks ago. Earl Baugh and Fantasy
Island Amusement is using the property at Airline Highway, in addition to what
they applied for which is now wrapped up in litigation, as a theater. They are
not duplicate licenses nor duplicate applications but separate, and Mr. Baugh
wishes to have a license for a theater at that location. Mr. Hearity stated he
advised Mr. Zellhoefer through the mail what Fantasy Island Amusement intends to
do with that theater, and there certainly is no confusion in their minds about
what is legal there now and what is subject to pending litigation with the Board
of Adjustment. Mr. Hearity stated he does not understand what Mr. Walsh is
indicating, but the document is for a license to have a theater out there. Mr.
Hearity stated Mr. Baugh has a great facility for a theater and can't use it.
Mr. Hearity stated this license is not for adult use.
Councilperson Schmitt stated that the letter from Mr. Hearity to Mr. Zellhoefer
says that Mr. Baugh intends to show movies and put on other productions and
asked what other productions are we talking about.
Mr. Hearity responded they have not begun negotiations with either UNI or the
University of Iowa, but the facility would be a great place to put on live
performances, but they would not put on anything that is not within the law or
within the regulations.
Mr. Walsh stated there is an application pending for the same applicant for the
same building as an adult use, and there is an ambiguity. The city has asked
them to clear it up and there are different ways they could do it, but as of now
they have not chosen to do that.
Mr. Hearity stated they told in the letter what they intend to do with this
license. The subject of the adult use application is a special permit which is
being litigated with the Board of Adjustment. Mr. Hearity stated if they are
successful with the application through the Board of Adjustment litigation that
would be separate.
Mayor Hurley noted that they are asking for a license for one part of the
building that would allow them to not only have live productions but have films
that are within the legal parameters of the State of Iowa and the existing
ordinances of the City of Waterloo. Mr. Hearity responded that is correct.
Mr. Walsh stated he doesn't think there has been a designation of different
areas in the building on the application. The request is for the entire
property. Mr. Walsh stated everybody understands there is a spirited certainty
that everyone is well intentioned on both sides. The debate about where the
constitutionality lines are drawn in matters like this, and he doesn't know
where this is going to end up, but right now there are conflicting applications
by the same applicant for this property, and he doesn't know how we can proceed
unless they say what they want to use it for. Right now they have declined to
say. They have one application for an adult use and one application they say is
not for adult use. Mr. Walsh recommended the council have the applicant clear
it up one way or the other.
Welper/Cole
that the above theater license application be tabled indefinitely.
• •
• •
March 13, 2006 Page 9
New Business continued
Prior to a vote on the above matter, the following comments were heard.
Mr. Hearity stated if they are successful with the litigation the whole property
will be used as that, but until then Mr. Baugh would like to use it for a
theater.
Councilperson Welper read the following last paragraph in the letter from the
Senior Planner: "It should be noted that the 25 percent adult use provision
does not apply to theaters, and thus the showing of any adult movies meeting the
definitions of the City of Waterloo Zoning Ordinance would be illegal and
subject to appropriate legal action." Councilperson Welper commented that is
why he is asking to table this item indefinitely.
Mayor Hurley asked if Mr. Baugh received approval for the theater license
application would that theater be showing G to R rated movies like we find in
our other theaters. Mr. Hearity responded they would pass on each movie as it
came down the pipe until they have sufficient experience to be able to make a
decision as to whether or not they would also want to ask that they make it G to
R or G to X, but no Triple X rated. Mr. Hearity stated the only grey area is
whether they are a R, RR, a cable R, a cable RX or a NC17. Mr. Hearity stated
they don't have enough experience now to tell the Planning and Zoning staff
whether they want to go pass the X, and they can't do that until they open up
and look at the actual inventory, but they are not going to show Triple X and
there is no adult stuff being contemplated at this stage with this application.
Mr. Hearity stated if and when they are successful with the litigation with the
Board of Adjustment, then the whole place becomes adult. Mr. Hearity stated he
believes July 5, 2006 is the hearing date on the litigation with the Board of
Adjustment. If they are successful with that and the court determines the Board
of Adjustment has made an illegal decision, then they would move on at some
later point to a damage hearing.
Mayor Hurley stated this is not a court room and council is being asked to weigh
legal argument and that would be better done outside this chamber.
Councilperson Welper stated to help Mr. Baugh out he would change his motion to
table this item for two weeks.
Mr. Hearity stated he is not guaranteeing that they won't file a lawsuit
tomorrow morning. Mr. Baugh has applied for a license that does not have
anything to do with adult entertainment and he is being stopped. Mr. Baugh has
the right to have his theater, and the council is stopping it for no good
reason. There is no confusion between what he wants to do with his theater and
what is subject to litigation on the adult side as they are two separated
distinct animals. One was applied for, it was denied and is being litigated..
One is applied for that involves no adult.
Mr. Walsh stated they have exercised their right to go to court before and they
certainly can do so again. Mr. Walsh stated the only reason he is recommending
that this matter be delayed via a tabling is because they have a pending,
contradictory application for the same premises. There has been no separation
of the premises, and they have declined a responsible offer to clarify exactly
what these special performance they are talking about are going to be. Mr.
Walsh stated as long as there is a pending application for an adult use, he
believes the council is within their right to table.
Mr. Hearity stated one is in court for adult use and one is for a theater that
does not ask for any adult use.
Mr. Walsh stated if Mr. Hearity wants to withdraw his pending application for an
adult use, then he would withdraw any suggestion that the council not approve
this application. Mr. Walsh stated the city would probably have to put somebody
on theater duty to watch the films. The application by itself as a theater use
only and not an adult use at all is probably something that can be approved if
the Fire Department is okay with it and everything else is okay out there.
Mr. Hearity stated the Fire Department has approved it and everything is done,
everything is approved except for the council's approval. Mr. Hearity stated
Mr. Baugh does not deserve this kind of behavior. If the city wants to send
somebody out there to sit 24 hours a day, then they should come out. Mr. Baugh
has been in compliance with all the rules and regulations that have been imposed
upon him since the beginning, and he has told you in a letter and he is telling
you today and he has never given any reason to doubt that he is going to do
nothing but comply with the rules and laws as they currently stand. Mr. Hearity
stated Mr. Baugh has the right to use his property, and he is asking the city
for a theater license to do so.
March 13, 2006
New Business continued
Page 10
Mayor Hurley asked what is the distinction between what we understand the movie
rating system from G to X and Triple X, etc. Mr. Hearity responded as a rule of
thumb adult has penile penetration of some orifice. Mr. Hearity stated the
litigation is about what they can have in the juice bar. Mr. Hearity sated that
what they are asking for tonight is to have a license for a theater and not for
adult use. Mr. Hearity stated that G through N17 are things you can see in any
movie theater, not a Triple X. Mr. Hearity stated there is no confusion in
anybody's mind as to what is being litigated and as to what is being asked for
tonight.
Councilperson Schmitt stated he thinks there is because Mr. Baugh added to his
request not only to show movies but to put on other productions. Other
productions sound like there is a conflict because he is going the route of the
juice bar in Mount Joy that went the first amendment route, changed their name
to the Southern Comfort Theater for the Performing Arts because they were a
theater. Councilperson Schmitt stated he does not see any difference here, both
applications are the same.
Mr. Hearity stated one is for if they were going to have nude performances like
dance performances or a juice bar that would be legal in their opinion and that
is why they are litigating. Mr. Hearity stated they are not going to be doing
that, they are going to comply with the law as it currently stands, not as it
would be if the Board of Adjustment permitted them to do an adult use out there.
Mr. Hearity stated they are not asking the council to approve an adult use as
they are not going to be doing an adult use out there. Mr. Hearity stated if
they wanted to bring in a director's department from the University of Iowa or
UNI and have them come in and say let's see if we can put together a play, use
this theater and see if they can attract an audience, they are ready to do that.
Mr. Hearity stated that is what they are talking about when they say live
performances. Mr. Hearity stated as they said in their letter they are not
going to do anything illegal. Mr. Hearity stated if the city wants to send
somebody out there every day for 24 hours, they should do so and they will see
very soon they will not have adult use.
With approval of the mover and the seconder, the motion to table indefinitely
was withdrawn.
Welper/Cole
that the above theater license application be tabled for two weeks.
Prior to a vote on the above motion, the following comments were heard.
Mr. Walsh stated he will get together with Planning and Zoning to see what needs
to be done, if there are going to be different areas of the building used for
different things, and see if there is clarification to be made in the
application. Mr. Walsh stated that given what Mr. Hearity said tonight, we may
be able to come back in two weeks and say fine. On the other hand, Mr. Hearity
may take this delay as something he can't tolerate and bring some action across
the street. If so, the council can still act on it in two weeks.
Following comments a vote was taken on the above motion with the following
result. Ayes: Six. Absent: Gunderson. Motion carried.
ADJOURNMENT
123163 - Getty/Schmitt
that the Council adjourn at 6:35
carried.
p.m.
Ayes: Six. Absent: Gunderson. Motion
r3z.le}:e
Nancy Eckert, CMC
City Clerk
• •