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HomeMy WebLinkAboutSept. 7, 2004 C/C Mtg. Meridian City Council September 7. 2004 Page 110173 Bird: Second. De Weerd: It's been moved and seconded to approve Item 10 with the changes noted by Councilman Rountree. Any further comments? Mr. Clerk. Roll-Call: Bird, yea; Rountree, yea; Wardle, yea; Nary, yea. MOTION CARRIED: ALL AYES. Item 11: AP 04-002: Appealing the decision of the Planning and Zoning Commission denying the Preliminary Plat for Sadie Creek Subdivision by FOLIO, Inc. - 2935 North Eagle Road: Item 12: Public Hearing: CUP 04-023 Request for a Conditional Use Permit for a Planned Development for a mixed-use development consisting of 120 multi-family units, 28,660 square feet commercial/office space and 3.43 acres of open space on 10.05 acres in a C-G zone for proposed Sadie Creek Subdivision by FOLIO, Inc. - 2935 North Eagle Road: De Weerd: Item 11 is AP 04-002, appealing the decision of the Planning and Zoning Commission on Sadie Creek Subdivision. Canning: Madam Mayor, Members of the Council, I'm not quite sure how to proceed with this. Do you want me to give you an overview of the entire development and, then, explain the reasons why Planning and Zoning Commission denied it? Rountree: I would. Bird: I would like that. De Weerd: Yes. Canning: Okay. I apologize for that. I'm a little disorganized today. This is Sadie Creek Subdivision and Sadie Creek takes access off of Eagle Road, which would be just here off the edge of the screen. This property was zoned C-G as part of the Eagy, Ruwe, Kissler, Cobb annexation that was before the Council for a number of months. This is the Ruwe parcel. As you will recall, the Eagy parcel is to the north and has access along Ustick Road. The Cobb parcel is just up in the corner at the -- at the very corner of Eagle and Ustick Road. So, this property -- the only access is on Eagle Road. They have proposed a drive that's along their southern boundary and, actually, it would be built partially on the neighboring property on an easement. They have proposed seven commercial or office lots in the front and, then, they have proposed a number of multi-family four-plexes in this area. This one was actually removed in the center of the open space there and, then, all these are four-plexes. This was the concept plan that was approved by Council for the Eagy, Ruwe, Kissler, Cobbs annexation, minus the Eagy, eventually, as I mentioned before. This is the Eagy property. So, on the concept Meridian City Councii September 7. 2004 Page 12 0173 plan it was shown as transitional use or utility use here to buffer the existing residential uses, the Carol Subdivision. This was shown as multi-family residential and, then, commercial office. They showed a cross-access agreement going south, a cross- access agreement going south, at about mid property line there was a cross-access agreement going north and, then, on the western end of the property there was a cross- access agreement going north. If we go back to Sadie Creek Subdivision, you will see that there is a -- these drive aisles do stub to the north in these two locations, so they would have cross-access opportunities there. This drive aisle -- this landscape plan is out of date, but there would be a five foot -- or ten-foot landscape buffer between the Eagy property and this drive. And, then, of course, there is a public street toward the west end of the property and, then, the property just south of them has quite a bit of cross-access via the public street. They could just tie into the public street and would have access that way. This is shown as mixed use on the Comprehensive Plan and that is why we did ask for the concept plan as it went through to get the commercial zoning, because we did want to insure that there was a mix of uses, rather just all retail. I want to point out the Carol Subdivision, the next road immediately south -- next public road immediately south of this is the Carol Subdivision and it would -- it does connect up to Ustick. That will become important in the summary of the Planning and Zoning Commission. I will just quickly go through these. This is the floor plan for the multi- family units. They are quite nice units. Lots of roof planes, lots of modulation in the facade, they are not just a box. At the Planning and Zoning Commission -- I'm not going to go through the full hearing I think as we are trying to focus on the appeal at this point. I did want to go up -- there was quite a bit of neighborhood testimony. Part of it was the -- the issue of this road. There was a lot of concerns that because it is so difficult to make a left-hand turn on Eagle Road, that people would make a right-hand turn, make a right-hand turn and go through the subdivision. Then, there was just the general concerns about bordering multi-family on the large one acre lots that are part of Carol Subdivision. The Planning and Zoning Commission in their denial of the preliminary plat based it on that it was premature to develop this property without particularly this Eagy piece being developed, because it was just too limited access, having only access to Eagle Road at this time. Staff did anticipate that that would just be a temporary access until such time as the property north of there developed and there was access to Eagle Road and the applicant was in agreement with that. One of the -- one of the strongly stated statements by the Planning and Zoning Commission in the discussion was that when they saw the concept plan Eagy was still in there and, therefore, they were comfortable with this concept plan. They felt that when the Eagy parcel dropped out, it really made this not developable on its own at this time. So, that was the basis for denial. And, also, we had not heard what ITD was going to allow as far as an access. Tonight you do have a letter from ITD from Lance Johnson and going into the Planning and Zoning Commission hearing it just said that access would be considered on a case- by-case basis. Well, this was the results of the case-by-case basis. So, the access control on this section of highway is type four urban. Spacing requirements are not met. Property has no access, other than the highway. The property has two access points on the plans. City of Meridian will -- and that's because it was a split driveway. City of Meridian will eventually call for a road connecting Ustick west of Eagle Road. So, the district recommendation was that ITD purchase the access points on State Highway 55 Meridian City Councii September 7, 2004 Page 13 01 73 and supply this property with an easement across the property to the north, that's Eagy again, for the Ustick Road connection. And, then, comments to the district recommendations are, one, the applicant does not agree with the district recommendation and the City of Meridian agrees with the district recommendations. So, that is the appeal that's before you tonight. I guess I will end there and answer any specific questions you might have. De Weerd: Council, do you have any questions for Anna? Bird: Not at this time. DeWeerd: Mr. Attorney, I guess I have a question for you regarding the process. We have heard the summary from staff. Is it typical that the applicant present his appeal verbally or only if Council would like additional information? Nichols: Madam Mayor, Members of the Council, the applicant is entitled to explain their reasons for the appeal and what they contend was the error in the decision by the Planning and Zoning Commission. De Weerd: Okay. Is the applicant here this evening? name and address. If you will, please, state your Perison: I will. Madam Mayor, Members of the Council, Mark Perison with the law firm of William R. Snyder and Associates. My address is 2413 Ellis Avenue in Boise, and I have been hired by the applicant to present the arguments on appeal. De Weerd: Okay. Perison: Members of the Council, this is -- there is another item on the agenda that is related to this and it's pretty important, because the Conditional Use Permit is also up for hearing, although that, obviously, wasn't decided by the Commission, and one of the things that's going to be discussed at that -- or during that presentation is this new Department of Transportation recommendation and how that's going to impact this particular project. If you have had a chance to look at any of the minutes or look over on this file, I think you can see that a lot of the community opposition relates to the traffic issue. My client, obviously, followed the recommendations of the staff, was trying to abide by the development agreement that was entered into with this Council and was, obviously, very concerned about the traffic issue, because that's a big issue here, and I think that was one of the major stumbling blocks to approval of the -- of the preliminary plat below. Let me start off by saying that in reviewing this it became clear to me that there were really two issues that were central in Planning and Zoning's decision to go against their staff recommendation and deny it -- deny the preliminary plat. Those two areas were primarily the traffic issue, which I think is, you know, something that's going to come up frequently in a situation like this, but, then, there was also something that kept being tossed around and that was the idea of this project being premature. I haven't found anywhere -- and I have looked through just about every material that I Meridian City Councii September 7. 2004 Page 140173 could find, that there is really no basis for the Planning and Zoning Commission to decide when it's right or not right for somebody to develop a property. What is appropriate for them to do is to look at the proposed development, compare it to the Comprehensive Plan, to the governing ordinances, make determinations as to whether these things are compatible, and decide on that basis. I want to sort of address these two issues separately. And the first one is this traffic issue and what I'm going to do is -- in the second -- in the next item on the agenda Mr. Unger, who is the surveyor for this property, has a lot more information on that and he's going to present that to you, so you can understand exactly what's going on. But I think that issue is going to -- if not completely resolve, mostly resolve the traffic concerns that have been raised by various members of the community. Their obvious concern is traffic running through their neighborhood as a result of this right-in -- you can only turn -" the recommendation from ACHD was that the entrance to Sadie Creek be a right turn only in and right turn only out and the concern of the subdivision directly behind it was that people would elect to drive through their subdivision in order to get to the property. De Weerd: Excuse me for just a moment. Peri son: Sure. De Weerd: You do have 15 minutes to present your appeal, so I just wanted to let you know since this is a new item what that meant. Perison: Got you. And when it turns yellow that means I have one minute left or -- De Weerd: Thirty seconds. One minute. Perison: Okay. Well, I don't plan to take up the entire time. De Weerd: Okay. Well, I just wanted to let you know what that meant. Perison: Thank you. I appreciate that, Madam Mayor. So, after that traffic issue is raised, I think a lot of the concerns will be alleviated. My problem with the decision below was that there was no specificity as to what the traffic problems were. You can read the minutes and you can sort of garner from them what people were objecting to, but in this case there were no findings from the Commission, no conclusions -- no written conclusions and nothing to go on, other than the statements at the meeting. And I would submit that if the Commission is going to deny the preliminary plat based on a traffic concern, that it ought to at least tell us what it is, rather than leaving it up to us to try to figure out what it is, so that we can make changes and propose changes and come back and find out that that's not what exactly is the issue. I suspect I know what the issue is and I think you will be able to determine, too, from reading the minutes. The issue of the prematurity is a lot more troubling, because I think what has happened is the Planning and Zoning Commission was unhappy with how the development agreement was finalized and what it said. When you read the minutes you can see there is quite a bit of disappointment -- I think that was one of the words that was used Meridian City Council September 7. 2004 Page 150f73 -- that this development agreement was passed in form slightly different than they had recommended. The prematurity argument seems to be that, well, we kind of want to see what everybody else is going to do first and I certainly recognize that from a human standpoint that it would make more sense if all of this is going to be developed over time, that it would be nice to have it done all at the exact same time. Unfortunately, I don't think that's workable in a case like this where you're looking at rather large parcels and rather significant development. I think, ultimately, the concern that the Planning and Zoning Commission had about prematurity was not necessarily that this project was really premature, but that they didn't really like where it was going and so they elected to go ahead and deny the preliminary plat. I have read over the staff's recommendation, which initially recommended approval of the plat, along with certain conditions, and know that my client has been diligently working to meet -- was diligently working to meet those conditions and I believe they met most of them and so they were rather surprised when the Commission decided to go ahead and vote against the preliminary plat. What we would like the Commission -- what we would like the Council to do on this appeal is to -- either, one, simply overrule the Commission and approve the preliminary plat, so that we can keeping going with the process, obviously, subject to the conditions set forth in the staff report, or, two, after you have heard this new information about the -- from the Department of Transportation, consider approving this preliminary plat with additional considerations. I'm sorry. With additional contingencies or conditions. That would allow this project to go forward. I think most of the community concerns are going to be resolved and this development can go forward. Some of the community concerns simply will never be resolved. If someone doesn't want multi-family residences near their home, that's a valid concern. That concern should have been addressed and I believe was addressed at the rezoning hearing and it's not the appropriate -- this is not the appropriate place for those kinds of arguments to be made. But I certainly think everyone has the right to voice their opinions about this project. So, in summary, we'd like to -- we ask the Council to reverse the decision by the Planning and Zoning Commission, approve this preliminary plat or, alternatively, approve this preliminary plat with additional conditions, so that my client can move forward. Are there any questions? De Weerd: Council, do you have any questions? Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: Does the applicant intend to contest the decision from the Transportation Department? Perison: No. In fact, my understanding is that that statement was -- at the time that letter was written that was their understanding and my applicant -- or the applicant's position. But I believe it is no longer their position. I think they actually are going along with this new recommendation. That's why I made all these elusions to the next item on the agenda, because that -- the surveyor is going to be telling you about that and I Meridian City Council September 7. 2004 Page 160173 believe he will tell you that they do consent to that. And I don't know if it's even possible to withhold a vote until after you have heard the next item on the agenda, so that you can -- because I believe that information will be relevant. I would have presented it myself, but we got it this afternoon and it was, frankly, too technical for me to do an adequate job presenting to you. Wardle: Madam Mayor? De Weerd: Mr. Wardle. Wardle: Just a quick comment. I heard that -- you said that the time to -- for the neighbors to comment on a specific use was at the annexation and zoning hearing and what this Council said at that hearing was that the proper time for the neighbors to approve specific uses was at a conditional use hearing. And so if you have read the minutes from that, I think your comment there is potentially incorrect. Perison: Okay. Well, I appreciate that. That is -- I guess that is a final -- and you're right, for the Conditional Use Permit it would be the opportunity for the public to be heard and make their comments about it. With respect to this appeal in the preliminary plat that was the basis of my comments. Nary: Madam Mayor? De Weerd: Mr. Nary. Nary: I guess my concern is you have asked us for a result that I guess I don't read in our code that that's really what we are supposed to do. I mean you don't believe that the Commission has made a proper finding, which is part of what I heard you say, and we should remand it to the Commission to have them make a finding. I read the minutes and it seems that there -- that talk about premature was because there is no concept plan for the remainder of this property and, therefore, it doesn't address the health and safety concerns that the public raised, which is appropriate for the plat. So, if I take what you have said on one hand, we should just remand it and they can make a finding and, then, you can appeal it and we can decide whether or not they erred, but they have four -- five findings in which to make, which they didn't specifically address, but they certainly addressed the last one about health and safety in regards to the access points and the access into the other neighborhoods and all that, which does address the plat. So, if you could answer that one. Secondarily, if the other question is you want us to simply approve this plat based on the only information we have is what you just said and what's in this record -- and I don't have anything in this record that tells me we shouldn't make the same finding, because the prematurity is really the relationship of this to the other properties for access and those types of things. It wasn't that they just didn't feel they should develop it yet, it's because they felt that it should be developed in conjunction to fix all these other issues and concerns for the neighbors and so if you want to answer that for me as well, because I guess I'm not following you to give us anything to base an overrule on. Meridian City Councii September 7, 2004 Page 170173 Perison: I understand. And I struggled with the issue of what the proper procedure was in this case. You know, as a litigation attorney I do a lot of litigation in the courts. The court system is very well and clearly defined as to what remedies are available on appeal and what remedies are not. I searched through the code today, saw basically the section that says -- well, over the last few weeks -- that says that you can appeal a decision. It doesn't necessarily say if the -- if the Council acts in a purely review capacity and either remands or overrules or whether they have the power to make the determination themselves and I came to the conclusion that because the Commission is acting under the authority of the Council, that the Council could ultimately elect to approve it over the decision of Planning and Zoning if they chose. Remanding it for Findings of Fact is also a possibility. That was another issue that I struggled with. I did read the minutes and I know you folks have, too, and it doesn't really make it clear what particular traffic issue was being addressed. The final vote simply says unresolved issues regarding the transportation department. And so that sort of left us going, well, there were a couple different things. Was it the traffic that was going to go through the other neighborhood, was there not enough access here, was there -- the driveway's not appropriate -- it really wasn't clear to us what should have happened. As the final issue on the prematurity question, it's a difficult question. I understand that initially that that parcel was to be included and was to be part of the development agreement. However, it wasn't. It -- the owner of that property backed off, backed out at the last second and did not go through to the Council. So, I would suggest that what we should look at is the development agreement and the requirements placed on what we do have in front of us and use that as the basis. But I do understand what they were saying is they expected this whole thing to be done together and it doesn't look like that's going to happen at this point, but we still think that the project is viable and it should go forward. Now, what does the green flashing light mean? Nary: It means you had a couple minutes, but for now with questions we have turned that off. That's just for your initial presentation. Perison: Any further questions? De Weerd: Any further questions, Council? Rountree: I have none. Bird: I have none, Mayor. De Weerd: No. Thank you. Perison: Thank you. De Weerd: Okay. Council, do you need any further information from staff? Rountree: No. Meridian City Council September 7.2004 Page 180173 De Weerd: Or our attorney on process? Wardle: Madam Mayor? De Weerd: Mr. Wardle. Wardle: I have a procedural question for Mr. Nichols. The applicant had several proposals for us as to what we can do with this action. If we -- I guess my question is if we decide to deny this appeal, does that, essentially, uphold the Planning and Zoning Commission's decision? Nichols: Madam Mayor, Members of the Council, yes, and if you -- well, you call it whatever you want to call it, but I would say that you vote up or down on whether to basically uphold the Commission's action or to overturn the Commission's action. So, it's clear what you're doing there. Now, it could be that by overturning the Commission's action you could still proceed to hear testimony and so forth and make your own decision on the preliminary plat after additional information. I don't think the code precludes you from being able to do that, as I read it. I would caution you, though, if you were to vote to deny -- or essentially uphold the Commission's action, I would prefer that, instead, that you remand it for findings. So, if you're inclined to uphold the Commission's action, there needs to be specific findings and that opens up another appeal route, because it, essentially, would bring it in front of you again, most likely. Thank you. Nary: Madam Mayor? De Weerd: Thank you. Mr. Nary. Nary: I guess, Mr. Nichols, I'm -- I think as everybody knows, I'm a big stickler for process, too, but there isn't a -- I mean the problem in this case is that because there weren't findings made, but our code is somewhat silent to me as to what action we can take, I don't want to make it more belaborous than this has already been and I guess would you be comfortable, do you think, if we were to be able to hear all of it, rather than -- rather than pieces and parts? We have a lot of people here, I think most of them -- or a lot of them are here to tell us about whether or not the plat works and whether or not the Conditional Use Permit should be granted. We can certainly take that route, I think, as you just said, and remand it for findings and they can, then, come back and appeal that and we can just have all these folks come back again in a month and we can do this over. But it appears that we could also -- and that's what I wanted to ask your opinion, is we could also grant the appeal, because there aren't any findings, and they could, then, put on their case as to whether this preliminary plat -- because they haven't done that. I don't think I have enough to approve their plat, but at least to say they didn't really take care of this down below, we can hear all of it, we can hear all of these folks, and if we are going to get an appeal, then, we get one appeal and it just goes forward. Rather than an appeal of a part, an appeal of the plat, that's separate Meridian City Councii September 7. 2004 Page 190173 from the CUP -- it just seems very cumbersome to me. But is that -- is that viable or does it just seem like that would be so easy, but that doesn't make sense, so -- Nichols: Madam Mayor, Members of the Council, the requirement that you have for both the neighbors and for the applicant is one, essentially, procedural due process. That's a fair opportunity to be heard on the issues and to render a decision based upon the evidence, testimony that you have before you. So, if you grant the appeal solely for the purpose of allowing the preliminary plat and the Conditional Use Permit to be considered together, I think that would be a supportable decision and, then, you could -- it does not mean that you, by granting the appeal, are approving the preliminary plat, you could just simply say you're approving the appeal only for the purpose of making an independent decision whether it should be granted or denied because of the lack of findings as you said. Nary: Thank you. De Weerd: Okay. Just so I'm tracking this, the preliminary plat is not on our agenda, but we can consider it, even though it's not? Nichols: Madam Mayor, you have an appeal of the denial of the preliminary plat. Therefore, I believe the preliminary plat is at issue. You also have the site plan, landscape plan, and so forth associated with the preliminary plat that's part of the Conditional Use Permit application. And I don't know that this issue has been decided by the Supreme Court. I don't believe it has in this state. And so I think that you could look at it as everybody's here, it's certainly a lot earlier in the evening than the last time this issue came up and so it would -- and the applicant, I believe, is prepared to address the issues related to the preliminary plat -- is that not correct, Mr. Perison? Rountree: He's shaking his head yes. Nichols: Okay. So, Mr. Unger has nodded, yes, he's ready to proceed to make his pitch with regard to the design of the preliminary plat and those applicable conditions. De Weerd: Okay. So, Council, what would you like to do? Nary: Madam Mayor? De Weerd: Mr. Nary. Nary: I guess with one other caveat that if somebody has a compelling reason that they can't -- don't feel that they had adequate opportunity to be prepared, I guess they could raise that issue to us as well at the point their testimony was -- they needed more time to discuss that and we could consider that. But I guess I just want to pass the buck. We are going to end up with having to make a decision on this, we might as well just do it. Everybody's here, let's just go forward. So, I don't know that we need to close the Public Hearing -- we don't have a Public Hearing on the appeal, so I think unless Meridian City Councii September 7, 2004 Page 20 01 73 Council has more discussion, I would make a motion, but I'll wait to see if everybody is of the same mind. De Weerd: Mr. Rountree. Rountree: Having counsel on either side, its kind of hard to filter what's being said, but let me see if I understand. It seems we have three choices and maybe it's only two. One is to approve the denial on the part of Planning and Zoning of this preliminary plat. One is to remand it back to Planning and Zoning and that just continues the cycle. And three is to deny or overturn the denial of Planning and Zoning, offer the public an opportunity to comment, and the applicant an opportunity to comment and, then, act on the preliminary plat. So, is that the correct read or if remanding and upholding the Planning and Zoning is one and the same? De Weerd: Mr. Nichols, is that a correct summary? Rountree: Sorry I asked. Nichols: Madam Mayor, give me a minute to look at the code, please. De Weerd: Okay. Wardle: Madam Mayor? De Weerd: Yes, Mr. Wardle. Wardle: Just a question to help clarify what Councilman Rountree is talking about. Not being of legal counsel myself. As I understand it, the Planning and Zoning Commission has the ability to hold a plat -- or to deny a plat and not bring that forward to the Council, which is why we don't have a plat, but we do have a Conditional Use Permit, which we are going to hear anyway. Mr. Nichols, would that be a correct assumption? Nichols: Madam Mayor, Members of the Council, the specific language in the code says this: If the plan - the preliminary development plan or plat is denied, it is not forwarded to the Council. But, then, it says down below: A person who appeared in person before -- before the Commission or subdivider -- in this case the applicant -- may appeal in writing the decision of the Commission relative to the final action taken by the Commission. So, I believe that puts this preliminary plat at issue before you. So, even though it's held, it's really only held at the Commission level if no appeal is taken. Once the appeal is taken, it places the decision in front of the elected officials of the city. Nary: Madam Mayor? De Weerd: Mr. Nary. Nary: Mrs. Canning -- Meridian City Councii September 7, 2004 Page 21 0173 Canning: Oh, heavens, don't ask me. I'm sorry. Nary: The question I would have is that if we were to go forward on this tonight with the plat, which wasn't forwarded, would you be able to be -- present anything on that tonight? Canning: Well, I gave the -- Madam Mayor, Members of the Council, I gave a brief summary. We have the staff report, which included the recommendation and findings for approval for the preliminary plat that staff originally did, so we do have findings for approval and I apologize not having prepared the findings for denial, that slipped through the process and so that was an error on our part. So, we have the basis for a recommendation for you either way that you would want to go or -- we have the basic information. The applicant has a Powerpoint presentation, they can describe the project to great detail, so I wasn't concerned about that portion, but we do have the findings -- the staff report that has the recommended findings for approval. Does that answer your question? I feel comfortable going forward with it. I don't -- Wardle: Madam Mayor? De Weerd: Mr. Wardle. Wardle: Just another question for Mr. Nichols. If we were to approve the appeal for the purpose of hearing the preliminary plat with the CUP, it would not approve the preliminary plat; correct? Nichols: Madam Mayor, Members of the Council, if that's your deCision, that's the basis on which you're hearing additional evidence, you just simply table your decision on the appeal and say you want to take additional evidence outside of what's already in the record. I mean it -- in other words, I guess what I'm telling you, Mayor, Members of the Council, is we can make it fit. The whole thing is that folks are here that have the ability to raise their issues to you, both from the applicant's side and from those who may be opposed or may support the project, but there is - obviously, based on the number of people in the room, there are a fair number of folks that have taken time out to have an opportunity to address you. De Weerd: So, Mr. Attorney, I will ask you one more question. Sorry, nothing's easy up here. If they uphold the denial and provide their own findings, can that be done? Nichols: Madam Mayor, yes. De Weerd: So, they can provide their own findings and, then, the CUP would be mute without a preliminary plat. Nichols: Madam Mayor, Members of the Council that would be a factor in denial of the Conditional Use Permit. The one thing in addition, though, is that because it's a permit, Meridian City Council September 7.2004 Page 22 0173 the state statute asks that you outline what, if anything, the applicant can do to achieve approval and so I don't think you want to say just based on the preliminary plat, you would have to address specific issues in the Conditional Use Permit application and how it could be modified or changed to achieve approval. De Weerd: And since the Planning and Zoning minutes are part of the public document, you can go based on what is already in front of us. Nichols: Madam Mayor, Members of the Council, all of the proceedings, all of the letters, all of the minutes, everything is the record upon which you base your decision. De Weerd: Okay. So, Council, you have a number of options of what you can -- the direction you can go. What is your desire? Nary: Well, Madam Mayor? De Weerd: Mr. Nary. Nary: I mean I don't -- I don't know if we ever answered Councilman Rountree's questions as to what's before us. To me, what I understand is before us is we can either grant the appeal for the purposes of hearing this preliminary plat and the applicant has already indicated his willingness to go forward. If anyone else raises an objection, say they haven't had adequate opportunity, we can consider that on whether or not we, you know, continue this matter over after everybody's still had an opportunity to testify tonight who thinks they can or we can grant the appeal c- or deny the appeal, but Mr. Nichols' recommendation is to simply send that back for findings, since no findings were done, that means they would likely re-appeal that, we just hear this again and drag all these people out here again. So, I guess for me, I'd rather not do that. If we are going to hear it, let's just hear it and I'm only cautious from Mr. Nichols' recommendation about tabling the appeal and taking more evidence, just because I don't know what a court is going to do with us not hearing that appeal, hearing evidence, not making a decision, and, then, if we go back and deny it based on the evidence that's subsequent .to the appeal, I don't know if a court's going to have an issue with that. So, I guess I'd rather just -- I mean it's a guess, but I guess to me if we are going to get appealed, let's just get appealed on the whole thing and not a piece of it. So, based on that I would move to grant the appeal by the applicant for the purpose of hearing the preliminary plat and the Conditional Use Permit together. I think that's it. Wardle: Second. De Weerd: Okay. Nichols: Madam Mayor? De Weerd: Yes, Mr. Nichols. Meridian City Councii September 7. 2004 Page 23 01 73 Nichols: Madam Mayor, Members of the Council, Councilman Nary, do you want your motion to include that by granting the appeal you're not approving the preliminary plat as it was presented at the Commission level? Nary: Yes. And I guess I can make that clear. That is my intent is that it is not to approve the plat as presented, but simply to hear the presentation by the applicant to both approve the plat and its Conditional Use Permit as he initially requested. So, it is not to approve it, simply to grant the appeal, because there were no findings from below, and allow us to hear all of that at once. Rountree: As well as the public? Nary: As well as the public. Wardle: Second agrees. De Weerd: Okay. The motion is to do what he said, to hear both the preliminary plat and the CUP and in public forum. Is there any further discussion? Mr. Clerk, will you call roll. Roll-Call: Bird, yea; Rountree, yea; Wardle, yea; Nary, yea. MOTION CARRIED: ALL AYES. De Weerd: Okay. So, procedurally, I would open up the Public Hearing on Item 12 to hear the CUP and the preliminary plat? Nichols: Madam Mayor, I would -- yeah, I would still, even though the appeal has been granted for the purpose of taking additional testimony, I'd open them both up, call it a Public Hearing on both matters and proceed accordingly. De Weerd: Okay. Do we need five minutes to collect your thoughts or do we want to just delve right into this? We will take a five-minute break and reconvene. (Recess.) De Weerd: I will go ahead and call this meeting to order. Now, someone needs to give me a gable, but they won't let me have it, so -- I will go ahead and call this meeting back to order. It has been requested by the neighbors to continue this application to next week and the applicant has agreed to doing that. He would like to take a couple of minutes just to present the ITD report, so the neighbors have that additional information for consideration for their testimony next week. So, if Council has no objection to that? Any comments? We will safe the staff and applicant presentation until next week when we hear public testimony. Would the applicant like to come forward? It is a Public Hearing and I will need to swear you in. Is the testimony you provide tonight the truth, the whole truth, and nothing but the truth, so help you God? Meridian City Council September 7. 2004 Page 24 01 73 Unger: It is. De Weerd: Thank you. Please state your name and address. Unger: My name is Bob Unger, I represent the developer on the project. Our address is 988 Longmont. That's a new address, so that's a tough one. Longmont Avenue. Boise. 83706. De Weerd: Thank you. Unger: And we can check that later to be sure. Madam Mayor and Council, I'm going to just very briefly review the ITD memo dated September 2nd 19 -- or 2004. Anna, could I get you to put just the master plan back up, please? Canning: Mr. Unger, do you have one on your -- on your presentation, because I, actually, switched over to you awhile ago. Unger: Yes, I do. Yes. The next one, I believe. That will do fine. Thank you very much. Canning: Okay. Unger: What ITD has -- their staff has recommended -- and this is from Chris Canfield, who is the district assistant traffic engineer, and who I met with today, also city staff has discussed this with him today also. Once again, we have the five items that the -- the access control to this section of highway is a type four, which urban spacing requirements are not met. When they talk about spacing requirement, they are talking about they would only allow accesses every half mile within this stretch of Eagle Road, which, of course, we all know that they have gone way beyond that. The property has no access other than this highway and that is true, we are land locked without that. The property has two access points on the plans, which, of course, we were proposing that this street go north ultimately to Ustick and, then, still the access there on Eagle Road. And, then, the City of Meridian will eventually call for a road connecting Ustick west of Eagle Road. And, once again, that's the street that we are talking about there. The staff -- the district staff recommended to ITD that they purchase the access points along State Highway 55. Now, there is one access point on this corner parcel. The Eagy property, I believe, has two accesses, we have two accesses, and this property down here has one or two accesses. So, I believe there is five to six accesses there. And what their staff is recommending is all those accesses be bought and that ITD purchase an easement to extend our proposed road to Ustick and that as development occurs over here, of course, we would tie in these driveways over to Ustick also, which ITD staff understands that. And the big issue, of course, would be ITD actually purchasing the easement to Ustick. We discussed that today, I discussed that with Mr. Canfield, and he said that he would also entertain an interim right-in, right-out access to Eagle Road untillTD is able to acquire the easement to Ustick. And in their concurrences and Meridian City Council September 7. 2004 Page 25 01 73 comments, it says the applicant does not agree with the district recommendation. Actually, he didn't contact us before he made his recommendation; it was based upon our initial letter requesting the access and the right of way permit. Once he and I met today, in our discussions we really don't have a problem at all with their proposal. All right? As long as -- as long as they can give us an interim access here until they are able to acquire the easement to extend our proposed road to Ustick and Mr. Canfield said he would support the interim access. So, in a nutshell, that's where we are with ITD, ITD staff, and we really feel that is a good proposal and a good recommendation from their staff. So, I just wanted to clarify that point is that we do agree with their comments and recommendations. I am prepared -- I do have a letter prepared, which would be delivered to Mr. Canfield at ITD tomorrow, supporting their recommendations to the board. And that pretty well covers what we wanted to cover on this. We wanted to make sure that all the folks that are here this evening had all the full information as far as ITD's staff recommendations and our concurrences with those. And, then, we will be more than glad to see you next week. De Weerd: Thank you, Mr. Unger. And the letter from ITD is on file in the clerk's office, should anyone need a copy of it. So, we appreciate that and per request -- Nary: Madam Mayor? Could I ask a question of Mr. Unger before we continue -- De Weerd: Mr. Nary. Nary: - it, based on just this -- what he just put on the record? Mr. Unger, I have read the letter, but it doesn't give me any time frame. Did he give you any time frame -- part of why we are here is because the person above there doesn't want to be a part of this project, so there is no real expectation -- or at least I don't have anything to show me any expectation that they are going to acquire that easement, other than through condemnation, which could take a long time. Unger: Madam Mayor, Mr. Nary, first of all, I asked him time frame on getting the board decision on their recommendation. He said it could be one to two months. If we concur with their comments, probably a month. So, we are hoping to have, you know, their final decision at that time and, you're right, he really -- he couldn't give me any kind of a ballpark time frame as to acquiring the easements or condemning whatever it takes to do that. He is -- and it's not just him, they have a committee that actually reviews these requests and the committee recognizes the fact that we are land locked and that they can't take away our access without providing us alternate access. So, you know, they are well aware of that, but as far as time frame, he couldn't give me one and you're an attorney, you probably have a better idea than I do as to how long it might take. Nary: Thank you. Unger: I wish I could give you better than that. Anything else? De Weerd: No. Oh, I'm sorry. Anything else, Council? Meridian City Council September 7, 2004 Page 26 01 73 Wardle: Madam Mayor? De Weerd: If -- it is a Public Hearing, but if we open it up for testimony -- I guess if you have a question you can ask staff tomorrow or you can ask the applicant or you can provide testimony tonight and you will not provide testimony next week. You can make a request of staff. Do you need to make a request of Council? Council? Rountree: Sure. Bird: Let's go for it. De Weerd: It is a Public Hearing and I do need to swear you in. Is the testimony you provide tonight the truth, the whole truth, and nothing but the truth, so help you God? Thurston: Yes, it is. De Weerd: Thank you. Please state your name and address. Thurston: My name is David Thurston, I live at 1470 Leslie Way, Meridian, Idaho. 83642. De Weerd: Thank you. Thurston: The request I have is to continue this not in one week, but in two weeks. We have over 50 homeowners that we have to try to get organized and try get to information to. If you would give us an additional week, it would help us in the preparation for coming back here before the Council being prepared. We appreciate your indulgence here and we are not trying to stonewall this, we are trying to be cooperative, but we want to be informed. That's all. De Weerd: Thank you, Mr. Thurston. Okay. Council? Mr. Wardle. Wardle: Madam Mayor, thank you. I move that we continue the Public Hearing for Item No. 12, CUP 04-023 and the preliminary plat, which we added to 7/21 of 2004 -- or, I'm sorry, nine -- September 21 st, 2004, two weeks from today. Rountree: Second. Bird: Second. De Weerd: Okay. It's been moved and seconded to continue CUP 04-023 and PP 03- 023 to September 21st, 2004. All those in favor stay aye. All ayes. Motion carried. Thank you all. MOTION CARRIED: ALL AYES.