Planning Commission Meeting Minutes
June 18, 2001
PRESENT: Mike Davis (Chairman), Rich Zimmerman, Bill Smith, Deb Coleman, Connie Otteson, Kurt Eidam, Rod Dalling, Karen Lords (P&B Administrator) and Sue Sommer (P&Z Secretary).
OTHER ATTENDEES: Jerry Woods (District 7 Health Dept.), Rick Byrem (Developer for Eagles Nest Ranch), Dean Bawden (Owner, Eagle’s Nest Ranch), Tim Hopkins (Attorney Representing Bob Cowan on Eagle’s Nest Subdivision), Dave Shipman (Attorney Representing Bob Cowan on Eagle’s Nest Subdivision), Marvin Smith (Attorney Representing Eagle’s Nest), Rodney Eastvold (Fremont County Consultant), Lance Steinmann (Representative for Atlas Engineering Cell Tower/Hobbs’ Property) and Steven Crain (Representative for Clear Talk Cell Tower/Dick Nedrow’s Property).
WELCOME: Mike Davis called the meeting to order at 7:10 p.m.
MINUTES: Minutes were reviewed and no changes need to be made. Rich Zimmerman motioned to approve the minutes as written. Kurt Eidam seconded the motion and it was approved unopposed.
PUBLIC HEARING –EAGLE’S NEST SUBDIVISION – 80 ACRES/20 LOTS Karen Lords advised that proper notice was mailed out, posted and published as required. The Board Members declared that there was no conflict of interest and, therefore, the Public Hearing can go forward. Karen Lords distributed and read the P&B Administrator’s Memo submitted by Rodney Eastvold. Afterwards, Chairman, Mike Davis, asked the Board if they may have any questions on this report and they had none.
Karen Lords provided in the packets copies of the Public Notice, the Class II Permit Application, Development Review Checklist, area maps, letter dated May 22nd, 2001 from Marvin M. Smith to C. Timothy Hopkins and Penny Stanford, permit proposal letter dated May 17th, 2001 from Marvin Smith, letter dated June 12th, 2001 from Marvin Smith to Karen Lords, letter and Lee Nellis’ e-mail from C. Timothy Hopkins, Plan and Development Review along with site maps of the proposed project.
Rodney Eastvold read the letter addressed to the P&Z Chairman and the Board Members from C. Timothy Hopkins, (Attorney for Bob Cowan) dated June 12, 2001 and the attached e-mail from Lee Nellis (former ‘Contracted Consultant Employee,’ who was hired to advise and set-up the initial Fremont County Development Code). Mr. Eastvold subsequently read his rebuttal Memo (with backup documentation). During Mr. Eastvold’s presentation, he pointed out and read the requirements in scoring on the Development Review (Chapter V-Performance Standards for Development Review pages 18 & 19, Sections C & D of the Fremont County Development Code book). Mr. Eastvold reviewed with the Board Members the steps used to determine the scoring, which was denoted on the Development Review Checklist.
Chairman, Mike Davis, asked if there were any questions that the P&Z Board may have on this report. Board Member Rich Zimmerman stated, ‘looking at the plat and the building envelopes, it looks like the developer has tried to move the envelopes away from the heavy sloped areas. I don’t know if the Commission wants to get into rating this over and beyond what Karen and Rod have done, but I see that they have gone over and above what they needed to do. It’s not that they haven’t done anything, but they took into consideration that there are slopes out there and they’ve put these building envelopes in the right spots. I see no problem with the way this project has been rated already by Mr. Eastvold and Ms. Lords.”
Chairman, Mike Davis, asked the Board if they would like to score this project themselves or if are they happy with the current score. Kurt Eidam stated that he was perfectly satisfied with the current scoring given. All Board Members agreed with the current scoring and did not feel a separate scoring would be necessary. With no further questions from the board, Chairman Davis asked the developer or its representative to speak on this project. Mr. Marvin Smith, Attorney for Mr. Bawden, spoke next. Mr. Smith assured the Board and the P&B Administrator that there has been no circumvention attempted or acted upon by his clients, as to the intended use of the contiguous property to this project. From the beginning of this new proposed subdivision, the P&B Administrator has been advised of the proposed usage of the contiguous property to the development. The visually sensitive areas of the project was addressed according to the Development Code and the developer has gone beyond the minimal requirements of the code as the developer realizes that this is a ‘drawing’ feature for future residents in this subdivision. Chairman Davis asked if there were any questions for Mr. Smith and there were not.
Dean Bawden spoke next about the background of the original acquisitioned property that was planned to be separated off as personal property that was owned by the Family Trust (which included Mr. Bawden, his wife, and four adult children)… that is the property to the East of the development… and that property was never intended for development, nor intended to be looked upon as part of the development, because it is under different ownership. The property to the west of the proposed project is owned by Dean Bawden, personally, as sole proprietor of Eagle’s Nest and was purchased for the sole purpose of development. Mr. Bawden thanked the Board for giving him the opportunity to briefly speak about the history of this property.
Rick Byrem, developer, explained the proposed development and explained how he has gone ‘above and beyond’ the requirements of the Fremont County Development Code. He asked if there were any questions and nobody had any questions.
Mr. Davis opened the Public Hearing stating that to please keep the talk down to 3 minutes or a maximum of 5 minutes.
DEAN BAWDEN: No further comments.
TIM HOPKINS: (Attorney for Bob Cowan) Mr. Hopkins placed maps in visual range of the Board. Mr. Hopkins stated that he believes that the Commission has a responsibility to address the issues that they raise to them and believe there are issues that deserve their very conservative attention in this matter. “While we believe it is the intent of the developer to withdraw the Class II permit that has been issued and approved by this P&Z Commission and the Fremont County Commissioners – that has not been done so far as we know. We’ve received no formal application for its withdrawal, no action on the behalf of County Commissioners to void or otherwise remove the effectiveness of this Class II Permit.” Mr. Hopkins stated that an appeal to the District Court has been made from issuance of that permit. The appeal is still pending there, until there is a formal withdrawal or voidance of the original Class II Permit. Mr. Hopkins asked that the P&Z Commission discontinue any further action with respect to this application, until such time as that application that was previously approved and resulted in a Class II Permit has been voided.
Chairman Davis stated that there are, currently, two letters from Marvin M. Smith. One is dated May 22nd, 2001 to Timothy Hopkins and Penny Stanford along with a subsequent letter dated June 12th, 2001 to the Fremont County Planning & Building Administrator, Karen Lords, stating the intent to initiate a new application and to discontinue the previous application. The May 22nd, 2001 letter, also, stated that ‘it would be in its best interest not to pursue or defend the present or prospective appeals; but rather to initiate a new application and request for plat approval. The new application should render the appeal moot.’ This letter further stated that ‘if the parties decide not to pursue the appeal, it would be my suggestion that Mr. Hopkins’ office prepare the necessary stipulations and proposed orders for the court in this matter.’ Mr. Hopkins stated that “his office cannot take THAT action and that the action must be taken by the County Commissioners of Fremont County and until that is done it is inappropriate for us to withdraw the appeal in this matter.”
Chairman Davis asked Karen Lords if the letter of withdrawal is acceptable. She stated that she ‘has to accept it as a withdrawal from the developer and has no choice.” As long as she has a letter from the developer that they are withdrawing their previous application, she HAS to accept and void the original application. Considering the information provided by the developer/representative/Marvin Smith to the Planning & Building Administrator, the Board Members agreed that old Class II Permit application has obviously already been considered withdrawn.
Mr. Hopkins focused on the critical areas of this new application. He reviewed Mr. Lee Nellis’ e-mail letter. Wetlands, Slopes, Envelopes were discussed at length. Several times Chairman Davis had to re-direct Mr. Hopkins to the current application and to stop referring to the original old Class II Permit. Mr. Hopkins stated that the Water Quality Vulnerability area is the most critical part of this development. He presented maps indicating the areas of most vulnerability. He referred back to the Henry’s Fork Sub-basin Assessment of 1998 – which indicated that Hotel Creek is identified as a most vulnerable area. Several times, Mr. Hopkins reviewed the sub-division guidelines, checklist requirements, etc. in detail. Wildlife habitat was indicated on a color-coded outlined map and previewed with the Planning & Zoning Board Members. Mr. Hopkins indicated that his job is to ‘persuade’ the Board into believing that this is a vulnerable area and that the decision the Board makes will indicate whether they are ‘thumbing their noses’ at these visually and water sensitive areas or not. Mr. Hopkins stated, “ I’m not asking for an amendment of the Comprehensive Plan, but asking you for the application of ‘common sense,’ which I think this county and this commission are possessed of in enormous quantities. ‘Common sense’ is all we’re doing here.”
Chairman Davis reminded Mr. Hopkins that he had already used 25 minutes in this presentation and that the Chair is trying to be generous because of their situation or position in this matter. Chairman Davis asked that he ‘please, wrap up this discussion.’
Hopkins, again, re-itinerated the pristine environment in the Island Park area and the necessity to preserve this environment. Mr. Hopkins stated “Mr. Eastvold had signed a petition along with 200 other people on the last go-around that were opposed to this proposed development ….how ironic, I guess.”
Chairman Davis asked if there were any questions and Kurt Eidam responded that “the water quality issue is one that is monitored and controlled by the State of Idaho Dept. of Health and Welfare as the septic and sewer permits are applied for. Mr. Jerry Woods has always been known to uphold the requirements of the State of Idaho and he has been known as one who would not hurt NOR ignore the ecological system in Island Park or Fremont County. He is a very wise man and has been doing that for many, many years. So you have to give him and also the State of Idaho, who developed that code, just a bit of credit because we are not sewer experts here, where people working for the State of Idaho who do have that knowledge. An additional comment, ‘what about a central sewer system in the Cowan Sub-division?’ Would they be willing to go the expense and cost for this essential sewer system? That subdivision has very small lots. It’s so difficult for this Board to see Cowan Sub-division with 79 lots in a much smaller area than in this proposed development and, yet, in Cowan Subdivision let the sewer run free and then for a five-acre lot require them to have a central sewer system. These are the type of situations and problems this Board has to deal and make decisions on. We, as a Board, do the best we can and we DO realize that our purpose is to promote the health, safety and general welfare of the people of Fremont County. We cannot ‘pick and choose’ how to interpret the code for a particular type of development.”
Mr. Hopkins responded to the integrity of Jerry Woods and the State of Idaho, but also suggested that this particular subdivision needs more scrutiny than the existing State of Idaho criteria states. Board Member, Rich Zimmerman, responded that if this is the case, then the Board should put a Building Moratorium on the Cowan Subdivision and NOT allow any further construction in that subdivision until they put a central sewer system in.
Mr. Hopkins responded that he is the attorney for Bob Cowan, not for the Cowan Subdivision, and he admitted that there is a major problem with the Cowan Subdivision, but that the Board should not be compelled to compound the situation by approving another subdivision in the area.
Rich Zimmerman commented that in reviewing the projected plans that are sitting before him, the developer has met each and every requirement. The developer has gone above and beyond the code requirements and he, as a Board Member, believes that the Board cannot stop development JUST BECAUSE. The Board’s job is to manage progress with a plan and with best interests in mind.
Chairman Davis asked the Board if there were any further questions for Mr. Hopkins. No one had any questions.
BOB COWAN: Mr. Cowan spoke on the water quality, the visual effects and wildlife detriment because of this proposed subdivision. He stated that the concerns he had almost a year ago, on this project, are the same concerns he has today. He stated that if it hadn’t been for him last year, the Jackson Landing road would have been closed because of this development. He had concerns about the developing being done under false statements to prospective buyers. There were signs posted stating “lots for sale” signs. They had no permits and Mr. Cowan stated that he had to file a lawsuit to get the signs taken down. Furthermore, the developers are advertising that the property has ‘paved road access’ to this property, when in fact there is NOT. Rod Cameron stated to Mr. Cowan that he had purchased the five acres and now who owns it? Mr. Cowan stated that at the opening of the meeting the question was asked as to if there was any conflict of interest by the Board. Mr. Cowan pointed to Mr. Eastvold and stated that Mr. Eastvold had signed a petition opposing Eagle’s Nest development. Mr. Eastvold stated that he does not have a conflict of interest and does not vote. The ‘voting’ is done by the Board Members only. Mr. Cowan counter-responded by stating “and what you have to say has no influence on what they do? Yeh, right!”
Mr. Eastvold responded to the accusations by stating that he ‘does not speak to the Board to influence, but only to state the facts of the code requirements and the Board makes the decisions on ALL matters presented before them.’
Chairman Davis asked the Board if they had any further questions for Mr. Cowan and they did not.
JACK CRELLIN: Mr. Crellin stated that he was the original purchaser of the first lot sold in the Cowan Subdivision. The Forest Service owned all the property around the Cowan Subdivision and for many years they’ve enjoyed to peace and quiet of the surrounding area. The cabins being built now in the Island Park area are not costing only $15,000 as they did back then, but much more. Over the years the Cowan’s have asked the county to pave the road to the subdivision. The county has only recently decided that the area needs a paved road and, supposedly, the county is trying to accomplish this task within the next year or so. He expressed his concern over the public accessing the lake through the Cowan subdivision on their privately maintained and owned roads. People using these roads have no concerns over leaving litter and messes on the property. He wanted assurances that the people living in this proposed subdivision not be trespassing through the Cowan Subdivision to access the waterfront and/or reservoir. This subdivision is going to increase the county’s tax base but it is, also, going to impact the existing private property located in direct path to the reservoir. He pleaded with the Board to take into consideration the lengthy ownership of property owners already living in the proximity of this development and the impact it would make on their property.
Chairman Davis asked if there were any further questions for Mr. Crellin. Board Member, Rich Zimmerman, as an observation only, stated that the proposed subdivision would probably be more of a buffer to keep the general public out of the area. Kurt Eidam tried to explain to the public that the Boards duty is to review the proposed development, make sure the proposed development is abiding by the applicable codes and safety issues and if they are NOT, make suggestions or changes prior to beginning development. The Board’s duty does not promote restricting any development, but their duty is to guide development in a direction of planning ahead, taking safety issues into consideration, abiding by state, county and city regulations and/or guidelines when applicable.
TERRY CRELLIN: Stated that his first concern is that future development does not, regrettably get looked back on as a big mistake. He reflected back at the mistakes that happened with Cowan Subdivision. He was advocating a public sewer system on all future development in the Island Park area. Mr. Crellin, also, stated that he did not trust Rodney Eastvold in any decision-making issues, especially with this particular development.
ERIC NOYES: Mr. Noyes is opposed to the proposed development. He stated that ‘two wrongs do not make a right.’ (He was referring to Jacob’s Ranch, Cowan Subdivision and Centennial Shores)
CLEN ATCHLEY: Mr. Atchley compared the development in Island Park to the Teton Basin/Jackson Hole area. “We do not want to make the same type of mistakes. When the development codes were drafted, we did not realize that in the future the government (the Forest Service) would be involved in land exchanges and/or swaps. Having been a past P&Z Board Member, all Forest Service property is considered visually sensitive and it would be a very difficult nowadays to determine a practical strategy when these lands are traded to private ownership.” Mr. Atchley promoted the very careful thought over the allowing of development on these types of lands. “Please do not make the same mistakes as we did with Cowan’s Subdivision.”
Chairman Davis asked if there were any questions or comments and there were none.
LETTERS OF COMMENT:
Karen Lords read the ‘Letters of Comment’ from the following people: Julie W. Martin of Blackfoot, ID Robert E. Wilkins of Island Park, ID
RICK BYREM: Mr. Byrem explained the proposed project and acknowledged the fact that the proposed area has been identified in previous studies to be located in a Water Quality Vulnerable area. Because of that fact, the project had been modified by reducing the number of lots to 20, enlarging the size of the lots and applying building envelopes on the plat – this project more than exceeds the basics to protect the environment from raw sewage. As the District Health Department has stated and has documented, the requirement of mandating a community septic system in this project would not be any more superior than an adequately and properly installed individual septic system and drain field according to the code. The size of these lots, are far larger and accommodating than the original Cowan Subdivision building lots.
Mr. Byrem read a letter dated in May of 2000 from the Idaho Fish & Game addressing the Critical Wildlife area. In this letter encouraging suggestions were made to improve less disturbance of the Critical Wildlife. From the beginning of this project, those comments and suggestions were taken into consideration. The letter had complimentary statements reference to the placing of building envelopes in the less sensitive area of the lots. He assured the attendees that there has never been any ‘underhanded’ dealing on this project. Mr. Bawden has suggested putting up fencing to keep the public from damaging this proposed property. Mr. Byrem suggested the combination of the two abutted subdivisions in ‘joining up’ in the barricading of their private access roads from the public. The buffering of two subdivisions in direct line of the reservoir would be twice as effective to defer public access traffic.
MARVIN SMITH: Mr. Smith discussed the access at the northeast corner of the project. The score sheet on this project speaks for itself and the Water Quality Vulnerability of this proposed property has been carefully considered in the planning. As far as Mr. Cameron and the allegations there, there was an agreement and based on the attitudes and proceedings, Mr. Cameron decided to graciously bow out of the transaction. There was nothing secretive about the proposed transaction, but because of the attitudes expressed, as they are being expressed tonight, he elected to ‘bow out.’ Mr. Smith stated that this proposed development is not perfect, as no development is perfect, but he asked that the Board approve this application.
Chairman Davis asked if there were any questions of Mr. Smith and there were none. He asked if there were any rebuttals for clarification and Jerry Woods spoke.
JERRY WOODS: Mr. Woods agreed that septic systems are “Permits to Pollute.” He described the soil types on this project. 80 acres of property with 80 septic tanks is acceptable according to Idaho Code and this particular project has 20 individual wells and has proposed 20 individual septic systems with drainage fields. In Island Park area, the water quality is exceptionally challenged and, therefore, the need for stricter rules. District 7 Health will continue to do the on-site test hole inspections and abide with the State Technical Guidance Manual Code. Mr. Woods spoke, in detail, on the water vulnerability of the Island Park area and the need for good future planning and he commended the Board on the concerns they have developed while dealing with any new development. It’s a hard job to make decisions that can affect the future of your community and this committee has combined ‘common sense’ with coming up with right solutions in developing and, yet, abiding by the existing Fremont County Development Codes.
Chairman Davis asked if there were any questions of Mr. Woods and Bill Smith asked to comment. Mr. Smith suggested that the in-common subdivisions and/or developers should have an open door policy for discussion of common problems, rather than bickering separately and having no common cure or goal. As a Board Member he felt that the developer in this case has gone above and beyond the requirements and 20 homes on this property vs a possible 30 building lots allowed clearly shows a true attempt to improve and maintain the water quality, the wildlife activity and protect the environment and/or safety of the area.
Mr. Eastvold commented on the possibility of future adoption of impact fees in Fremont County. The developer would be assessed a fee to cover a study being done on the affect a proposed subdivision would have in the community/area. This fee would cover costs for assessing the extra costs to cover necessary fire protection, community septic systems, emergency services, libraries, schools and/or safety issues based on the added subdivision residences, etc.
Chairman Davis closed the meeting to public comment. Board Members were encouraged to speak among themselves about the topics brought before the Board by the public.
Mike Davis commented that he agreed with the public comments relevant to private property. The Board is, however, guided and directed by a code. “It may be imperfect, but it is the best we’ve got.” He stated that he did not know what the answer is and where you put a moratorium on it and say “NO MORE.” Mr. Davis agrees that the Board needs to use common sense and look at all of the issues and then make a decision. Subdivisions were done totally different in the past and the guidelines today are much more strict, because of way the old subdivisions have impacted us these many years later. “We hope that the newer guidelines and the process we go through nowadays, is an improvement over what we previously did. At least we are striving to do it with good judgment and with the future in mind.”
Rich Zimmerman stated that the future is his utmost concern. He lives in Island Park and he is very pro-development oriented. Having dealt with this particular developer, Rick Byrem, it is quite obvious that he is detail oriented and seriously considers the environment, safety and wildlife issues when preparing any proposed projects.
Kurt Eidam commented on working in the Island Park area. He stated that every person he has dealt with in Island Park has a true concern on preserving the environment in the pristine condition that it is in. Their concern is shown in the type of development that is going into this area. The majority of newer homes/cabins in the Island Park area have impeccable yards, up-to-date in safety structure, built naturally nestled in the trees (and most invisible from the main roads) and, obviously, desirous for preserving their summer residents/cabins. These people appreciate our gift from god. Their actions clearly express the concern over maintaining the country attribute and I feel they have a right, as well as I, to live where they want to live.
After a lengthy discussion on this proposed project, Rich Zimmerman motioned to accept the Eagles Nest Subdivision proposal. Kurt Eidam seconded the motion. Bill Smith declined (abstained) to vote. The balance of the Board Members agreed to accept the proposed subdivision.
PUBLIC HEARING – ATLAS ENGINEERING CELL TOWER – CLEAR TALK WIRELESS - LELAND HOBBS’ PROPERTY – ST. ANTHONY, IDAHO – LANCE STEINMAN, REPRESENTATIVE Karen Lords advised that proper notice was mailed out, posted and published as required. The Board Members declared that there was no conflict of interest and, therefore, the Public Hearing can go forward. Lance Steinmann provided pictures of the proposed tower. Afterwards, Chairman Mike Davis asked the Board if they had any questions on this report and they had none.
Karen Lords provided in the packets copies of the Public Notice, the Class II Permit Application, Development Review Checklist and site map of the proposed project.
Mr. Lance Steinmann described the proposed cellular tower project and asked if there were any question.
Karen Lords read the P&B Administrator’s Memo and asked if there were any questions about the report.
Chairman Davis opened the meeting to Public Comment. There was no Public Comment and, therefore, Chairman Davis closed the meeting to Public Comment.
The Board Members briefly discussed the proposed tower and agreed that this cell tower should meet the FAA and FCC regulations and conditions. Kurt Eidam also suggested the ‘tear down’ clause in the lease agreement and Karen Lords stated that this is a condition that is usually put on the lease agreement with the landowner.
Rich Zimmerman motioned to accept the cell tower as long as they meet the conditions listed on the Administrator’s Report. It was seconded by Connie Otteson and accepted unanimously.
SKETCH PLAN – CELL TOWER - CLEAR TALK WIRELESS ON DICK NEDROW’S PROPERTY – ASHTON, IDAHO In the packet there was provided a Sketch Plan Review, a legal description of the proposed development and a proposed site plan for the development along with a photo of a similar tower being proposed for this site.
Steven Crain spoke in behalf of Clear Talk Wireless and explained the proposed project. This cell tower will handle coverage from St. Anthony to West Yellowstone. The balance of the towers, are located on Forest Service property. Each tower will have the potential to hold 4 carriers. Ubiquity has approached them as their first carrier.
The Board Members briefly discussed the proposed tower and agreed that this cell tower should meet the FAA and FCC regulations and conditions as the previously approved cell tower. Deb Coleman, also, suggested the ‘tear down’ clause in the lease agreement. Kurt Eidam emphasized the concern to share and/or cohabitate multiple carriers.
After a short question and answer session, Kurt Eidam motioned to accept the Sketch Plan and proceed with Public Hearing on this project. Deb Coleman seconded the motion and it was approved unopposed.
SKETCH PLAN – SUBDIVISION – 13 RES. LOTS ON 35.8 ACRES - JUDY HOBBS, REP. FOR SID KELLER’S PROPERTY AT 500 N & 2400 E – ST. ANTHONY, ID In the packet there was provided a Sketch Plan Review of the proposed development, a legal description and Ms. Lords displayed a plat map, showing the proposed subdivision.
Judy Hobbs described the proposed subdivision, which is proposed to have ‘stick built’ homes with the majority being manufactured homes, which will be within the City of St. Anthony impact area and will need to be presented before the City board. The proposed development meets all county requirements with minimum one acre lots with nine lots running along the highway on 500 North and four larger parcels located in the back.
Jerry Woods spoke about the process to hook into the City Sewer. If building is started before city sewer is connected, the installed systems will need agreements to ‘cap & fill’ upon hookup into the city. Until then, county codes apply. Test holes will be required because of flood season and sub-water existence. (April, May, June & July)
Rich Zimmerman motioned to accept the sketch plan. It was seconded by Bill Smith and was approved unopposed.
ADMINISTRATOR’S REPORT Karen Lords announced that one of the cell towers that had been proposed for the Piece of the Rockies property has been put on hold. That cell tower company has approached the City of St. Anthony to possibly lease property at the landfill.
Because the Public Hearings took so much time tonight, the Draft Cell Tower Regulations that Ms. Lords passed out will be discussed next month. Please take the draft regulations home, review and think of some additional suggestions and/or changes. Referring to the tax issue mentioned by Pat McCoy at the last meeting, Prosecuting Attorney Trent Grant is further researching, but feels that this issue would open a ‘can of worms’ for the P&Z Board and should NOT be addressed at our level.
ADJOURN Bill Smith made a motion to adjourn the meeting and it was seconded by Rich Zimmerman and approved unopposed. Meeting was adjourned at 11:10 p.m.