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CC - Applicant's Supplemental Submittal to City re Development Agreements (10-18-19)Geoffrey M. Wardle (208) 388-3321 gwardle@clarkwardle.com Via Email October 18, 2019 Meridian City Clerk (cityclerk@meridiancity.org) 33 E. Broadway Avenue, Suite 104 Meridian, Idaho 83642 Kevin Homes, Associate Planner (kholmes@meridiancity.org) City of Meridian, Suite 102 33 E. Broadway Avenue Meridian, Idaho 83642 Re:H-2019-0091, Victory Commons MDA CW Matter No.: 23695.0 Dear Clerk and Kevin: We represent the Applicant, BVA Development, LLC, and the Owner, Kuna Victory, LLC, in relation to the request to modify an existing development agreement, H -2019-0091, for the project referenced as Victory Commons. To follow up on the deferral of this matter by the City Council on October 15, 2019, we make the following supplemental submittal. A.Supplemental Materials and Condition This application is supplemented as follows: 1.Recognizing the concerns that had been articulated by the Mayor and City Council at the hearing on October 15, 2019, we enclose for reference is the current elevation of the proposed flex buildings. It is my understanding that the Applicant has transmitted these to neighboring property owners that had requested them previously. To clarify further, dimensional information has been provided indicating that the parapets for the proposed flex buildings are approximately 28 feet in height and the roofs in the rear are approximately 22 feet in height. 2.The Applicant and Owner are amenable to agreeing to a height limitation for the property as part of this amended development agreement. The existing C -G zoning designation for the property Supplemental Submittal H-2019-0091, Victory Commons MDA October 18, 2019 Page 2 S:\Docs\BVA -Victory Commons\BVA -Victory Commons -General\LTR\Supplemental Submittal To City Re Development Agreements (10-18-19).Docx establishes the maximum building height of sixty five (65) feet. We propose the following additional condition be included in the development agreement in the conditions set forth Section VIII, that provides as follows: CONDITIONS COVERING DEVELOPMENT OF SUBJECT PROPERTY: 5.1 Owner/Developer shall develop the Property in accordance with the following special conditions: . . . 14.No building on the property shall have a maximum building height that exceeds 40 feet, measured in accordance with UDC 11-1-5B(1). We believe that this is a reasonable compromise in light of the fact that the existing development agreement, as amended, imposes no additional limitation on maximum building heights. The existing R-4 zoning designation for the residential properties to the east establishes the maximum building height of thirty five (35) feet. The proposed height limitation of forty (40) feet is consistent with the allowable building height above grade plane under Chapter 5 of the International Building Code. The foregoing additional condition gives the Applicant and Owner flexibility in developing the site, the adjoining residential neighbors assurance that the height would be comparable to what would be permitted within their neighborhood, and the City Council assurances that it will not have to revisit building size and height. 3.Recognizing concerns regarding mechanical systems on the roofs, the Applicant is also amenable to ensuring that such mechanical systems are screened consistent with Meridian’s UDC. We propose the following additional condition be included in the development agreement in the conditions set forth Section VIII, that provides as follows: CONDITIONS COVERING DEVELOPMENT OF SUBJECT PROPERTY: 5.1 Owner/Developer shall develop the Property in accordance with the following special conditions: . . . 15.Outdoor mechanical equipment shall be installed consistent with UDC 11-3A-12. B.Supplemental Analysis. In light of the foregoing we provide certain additional analysis in support of our clients’ application. Supplemental Submittal H-2019-0091, Victory Commons MDA October 18, 2019 Page 3 S:\Docs\BVA -Victory Commons\BVA -Victory Commons -General\LTR\Supplemental Submittal To City Re Development Agreements (10-18-19).Docx 1. Existing Development Agreement Permits the Proposed Structures. First, it is important to note that this property was annexed in 2004 and zoned C-G at that time subject to a development agreement. The then existing comprehensive plan had contemplated commercial development at this site since at least 2002. The 2006 amendment to the development agreement incorporated certain additional changes to the development standards applicable to the property. They did not impose any height limitation. Pursuant to the 2006 amendment to the development agreement, the Owner could in fact construct buildings that were sixty five (65) feet in height with no further approvals, if such had “sloped metal roofs, with overhanging eaves that are supported by posts” and met certain other requirements regarding materials. The only dimensional limitations under the 2006 amendment to the development agreement imposed limitations on maximum building footprints. 2. Consideration of Views are Irrelevant to this Application. Next, to the extent that concerns were expressed regarding the impact upon views from property to the east, Idaho does not recognize the “right to a view” or the right to be free from visual obstructions under either its common or statutory law. Idaho neither recognizes a right to a “view” absent an obligation created by contract or regulation, nor does Idaho recognize any legal basis to object to the construction of a structure solely on the basis of its aesthetics, except to the extent recognized in the statutes and case law. The limitations that have been recognized as to the type and configuration of structures that can be constructed on property, are very narrow and are inapplicable in this instance due to the long existing zoning. The first restriction on the construction of a structure on property arises from Idaho’s statutorily created cause of action for nuisance. In Idaho Code § 52-101, a “nuisance” is defined as: Anything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. It is unlikely that in light of Idaho’s definition of nuisance that construction of commercial buildings that comply with the underlying zoning standards could ever constitute a use that is so offensive that it would “interfere with the comfortable enjoyment of life or property.” The second restriction on the type and configuration of structure on property arises from a series of decisions by Idaho’s courts regarding “unsightly” structures. In White v. Bernhart, 241 P. 367, 368 (1925)(modified in part by Sundowner, Inc.v. King), the Idaho Supreme Court held that: Supplemental Submittal H-2019-0091, Victory Commons MDA October 18, 2019 Page 4 S:\Docs\BVA -Victory Commons\BVA -Victory Commons -General\LTR\Supplemental Submittal To City Re Development Agreements (10-18-19).Docx The fact that [a structure] is unsightly or out of harmony in construction with adjacent buildings, and therefore not pleasing to the eye would not make it offensive to the senses … so as to warrant a holding that the building is a nuisance… (Emphasis added). The fundamental holding remains unchanged today. In Sundowner, Inc., v. King, 95 Idaho 367, 39 (1973), the Idaho Supreme Court modified White slightly: “. . . no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. . . . The rule announced herein is applicable only to structures which serve no useful purpose and are erected for the sole purpose of injuring adjoining property owners.” (Emphasis added.) Constructing a commercial building on a commercially zoned property does not fall within the narrow limitations of either White or Sundowner. 3.The Existing Provisions of the UDC Govern this Application. Finally, it is well established in Idaho that the rights of an applicant for a land use permit or rezoning of property are determined by the ordinance in existence at the time of filing an application for such. Payette River Property Owners Ass'n v. Board of Comm'rs of Valley Co., 132 Idaho 551, 555, 976 P.2d 477, 481 (1999). As noted by the Idaho Supreme Court in Ready-to-Pour, Inc. v. McCoy, 95 Idaho 510, 513, 511 P.2d 792, 795 (1973) " the applicant's rights are measured under the law in effect at the time of the application." All applicants have a clearly recognized right to have their land use applications evaluated and measured under the ordinances in effect at the time of initial application. Payette River, 132 Idaho at 556, 976 P.2d at 482. In this instance, the flex space proposed on a portion of the property is absolutely use permitted by right in the C-G zone, UDC Table 11-2B-2; the maximum height of any building in the C-G zone is sixty five (65) feet, UDC 11-2B-3; and the flex space proposed on a portion of the property far exceed all setback requirements. Our clients are well versed in Meridian’s UDC and can assure staff and the City Council that all specific use standards relating to flex space set forth in UDC 11-4-3-18 will be satisfied and complied with. C.Conclusion The Applicant and Owner are in agreement with the staff report and recommended conditions of approval. In order to address the concerns raised on October 15,2019, the Applicant and Owner are amenable to the incorporation of the attached elevations in the development agreement, and to the inclusion of the additional conditions set forth above limiting the height of buildings on the property to Supplemental Submittal H-2019-0091, Victory Commons MDA October 18, 2019 Page 5 S:\Docs\BVA -Victory Commons\BVA -Victory Commons -General\LTR\Supplemental Submittal To City Re Development Agreements (10-18-19).Docx forty (40) feet and requiring screening and installation of mechanical equipment consistent with the UDC. We request your approval of this application. Sincerely, Geoffrey M. Wardle Enclosure CC: J. Thomas Ahlquist Tonn Peterson