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Home My WebLink AboutLetter from Tim Wallace Moffettt Thomas MOFFATT THOMAS BARRETT ROCK & FIELDS, CHTD. RECEIVED OCT 11 2004 Boi" Idaho Falls Pocat,lIo Eugene C. Thom~ John W. Bumt R. B. Rock Rich,cd C. Pidd, Rob", E. B.k" John S. Simko John C. W"d D.J,m« M,nning G")' T. D'nce L",yc. Hunt" R,nd']! A. P"'tmm MukS. Pm'yn,k; S"phen R. Thom~ Glenn. M. Ch,i"en"n G""ld T. Hu,ch Scott 1. c..mpbdl Rob", B. Billn' J=" c. D.Je Mich.d E. Thom~ P",iei. M. OI"on J.m" C. doG!" Brndley J Willi.m, 1oe R,dfncd Mich"l O. Roe J),vidS.Jen"n J,m"1.M,,,in c. a.yton Gill D"id P. Gudn" Juli.n E. G.bio!. Angd. Sch", K,ufm.nn City of Meridian City Clerk Office US Bank Plaza Building 101 SCapitolBlvcl10thFI PO Box 829 Bol". Idaho 83701 0829 Kimbe'¡y D. Enn, Roo, Benj.min H. Schw.rt, Jon A. S"nqui" E,icM.Bu,",e B"dley J. Dixon J~on G. Mut"y M"k C. P"",oa Andccw J. W.td", Sh.wn C. Nunley Trl" J. Ande"an Roo,,11 G. Mctcili Mo,g.n W. Rich.cd" ofmu",e} October 11,2004 via Hand Delivery 208 345 2000 800 422 2889 208 385 5384 Fax www.moffattcom Will"CMo¡¡;'cc,1907-1980 K"k R. He}vie, 1956-2003 City Clerk, City of Meridian Meridian City Hall 33 East Idaho Avenue Meridian, Idaho 83642 Vision First, LLC; Proposed Kingsbridge Subdivision; City of Meridian File Nos. AZ-O4-023, PP-O40-030, and CUP-O4-026 MTBR&F File No. 19-898.0 Re: Dear MayoT and City Council Members: We represent the residents of the Dartmoor Subdivision ("Dartmoor"), which adjoins the proposed Kingsbridge Subdivision ("Kingsbridge") and which would include the most directly impacted properties from the development of Kings bridge. In connection with our representation ofDartmoor, we have reviewed, among other documents, a letter from Edward Miller with the law firm Givens Pursley, dated September 16, 2004, that is included in the record presented to the Meridian Planning and Zoning Cornmission ("P&Z"). This letter is intended to address and correct some of the statements included in Mr. Miller's letter. At the hearing before the City Council on October 19, 2004, you will hear testimony from the Dartmoor residents regarding the representations that they received at the time they bought their lots from the developer of Dartmoor with respect to the future development of Lot 11, Block 2 ("Lot 11"), which lies adjacent to Dartmoor and comprises a significant portion of Kingsbridge. Some of these residents will undoubtedly share with you the fact that they were assured that Lot 11 would be developed with one to two acre lots in a manner consistent with the large lots in Dartmoor. Most all ofthese residents will nndoubtedly share with you the fact that they were assured that Lot II would remain open space and not be developed at all until at least 15 years after the recording ofthe plat for Dartmoor. As discussed below, the recorded record establishes the indisputable truth with respect to the IS-year moratorium on development and, as a matter of equity, fairness, good government, and prudence, Dartmoor therefore requests BOI_MT2:559522.1 City Clerk, City of Meridian October II, 2004 Page 2 that the Meridian City Conncil refrain from approving any development of Kings bridge at least until the IS-year moratorium has run on March 3,2009. Site Specific Condition No.2 of the September 13, 2004, Staff Report to P&Z proposed the following condition of approval to the Kingsbridge applications: Approval of the plat is conditioned on the applicant demonstrating written approval by a majority ofthe lot owners in Dartmoor Subdivision of the subdivision and development, or as an alternative, a favorable final decision by the District Court for the Fourth Judicial District of the State ofIdaho declaring that the applicant has the right to subdivide and develop the property notwithstanding the nonbuild restriction placed on the property by Ada County. Such approval shall be required prior to submittal of any final plat applications or issuance of any building permits. Mr. Miller, on behalf of his client, argues that "Vision First already meets Condition No.2 because each and every lot owner in Dartmoor Subdivision has already consented to the resubdivision and development of Lot 11." Miller letter at p. 1. Mr. Miller points to the following language contained in the third paragraph of Article II to the Dartmoor CC&Rs (copy attached to Miller letter) to support his argument: As provided in Section 5.28 of this Declaration, Lots 1 and 11, of Block 2, are excluded by the Grantor from coverage of this Declaration. By accepting a Deed to a Lot within Dartmoor Subdivision, each Owners shall be conclusively deemed to have waived any objection to the exclusion of said Lot 1 and 11, Block 2 and consents to the re-subdivision and development thereof in accordance with the zoning ordinances then in force and effect and applicable to Lot 1 & 11, Block 2, including such re-subdividing and/or development as shall require that access to Lot I and 11, Block 2 will be provided by the public right(s)-of- way within Dartmoor Subdivisions, and that the utility facilities located within Dartmoor Subdivision may be extended to serve said Lot 1 and 11, Block 2, including a re-subdivision thereof. (Emphasis added.) There are at least three fundamental problems with Mr. Miller's argument. First, as discussed further below, the argument ignores the other applicable (and controlling) provision in the Dartmoor CC&Rs that proscribes any development of Lot 11 for a minimum of 15 years. BOI_MT2:559522.1 City Clerk, City of Meridian October 11, 2004 Page 3 Second, and as also discussed further below, the argument ignores the limitation in the Dartmoor plat that proscribes any development of Lot 11 for a minimum of 15 years. Third, the argument ignores the fact that Lot 11 was expressly excluded from the Dartmoor CC&Rs and that therefore the implied consent thereby granted by the Dartmoor residents to the development of Lot 11 was personal to Skyline Development Company ("Skyline"), the developer of Dartmoor, which had promised the Dartmoor lot purchasers that no development of Lot 11 would occur for at least 15 years and that when development did occur it would be done in a manner consistent with the development of Dart moor. In other words, because Lot 11 is excluded from the Dartmoor CC&Rs, the consent (which is neither a covenant nor a restriction) for the development of Lot 11 contained in the CC&Rs runs only to Skyline,' which, of course, would be limited by its prior representations to how it might develop Lot 11 once the IS-year moratorium on development expired. In sum, because there is a complete lack of privity (or contractual relations) between Vision First and the Dartmoor residents, Vision First cannot sever the cornmitrnents made by Skyline (i.e., development limited in time and density) from the very benefits Skyline obtained for making these cornmitrnents (i.e., consent to limited development). Above and beyond the foregoing "privity" argument, however, are the matters contained in the Dartmoor CC&Rs and plat concerning the development of Lot 11 that are not subject to dispute. Thus, Article V, Section S.OI(b) of the CC&Rs specifically provides as follows: ODen Space Lots: The following Lots shall be used for agricultural purposes, subject to the limitations as provided in this Declaration (hereafter "Open Space Lots"): Lot 11, of Block 2, Dartmoor Subdivision, according to the Plat thereof. (Emphasis added.) Or as otherwise indisputedly promised, Lot 11 is to be used for open space "according to the Plat thereof." And, in this regard, Note 9 to the Dartmoor plat (copy of plat attached to Miller letter; blowup of Note 9 attached hereto) expressly provides: LOT 11 BLOCK 2 IS A DEED RESTRICTED LOT AND MAY ONLY BE USED FOR OPEN SPACE AS DEFINED IN THE NON-FARM DEVELOPMENT SECTION OF THE ADA COUNTY CODE, SECTION 8-4B-7 AND IN THE PLANNED DEVELOPMENT PROVISIONS OF THE ADA COUNTY CODE FOUND IN TITLE 8, CHAPTER 9, THE DEED RESTRICTED LOT MUST ALSO ONLY BE USED IN THE MANNER SPECIFIED IN THE CONDITIONS OF APPROVAL ISSUED BY ADA COUNTY'S DEPARTMENT OF BOI_MT2:559522.1 City Clerk, City of Meridian October II, 2004 Page 4 DEVELOPMENT SERVICES. THIS LOT MUST BE USED IN AFORESTATED MANNER FOR A PERIOD OF NOT LESS THAN FIFTEEN (15) YEARS FROM THE RECORDING DATE OF [3/3/941 (Emphasis added.) Thus, the plat states without restriction of any kind that Lot 11 must be used for open space through at least March 3, 2009. It is this express recorded restriction that the Dartmoor residents are asking the Meridian City Council to respect. Mr. Miller argues that this deed and/or plat restriction should be ignored because to respect the recorded promise relied upon by the Dartmoor residents would effectively give these residents "veto rights," which, of course, is exactly what the Dartmoor CC&Rs and plat were intended to accomplish. Mr. Miller next argues that this restriction should be ignored because Ada County changed its zoning ordinances after the plat was recorded; however, the final sentence of Note 9 to the plat specifically provides that Lot 11 shall be used for open space for not less than 15 years, and does not provide for a shortening of this moratorium on development in the event of a change in Ada County's ordinances. Mr. Miller finally argues that this restriction should be ignored because it "runs contrary to the City of Meridian's exclusive power to control the zoning and development ofthe lands within its corporate limits" -- which argument, the Dartmoor residents respectfully submit, is really the point here at issue. The Dartmoor residents understand that the Meridian City Council holds broad and expansive legislative power in connection with land use matters, including deciding the Kingsbridge applications. Having great power, however, also instills a great obligation on the Meridian City Council to ensure that private property rights are respected. And, in this regard, there can be no question that the Dartmoor residents were promised by both Skyline and Ada County that they could build their homes in Dartmoor with the assurance that Lot 11 would remain open space for at least 15 years. If the Meridian City Council approves the Kingsbridge applications it will subject the Dartmoor residents (and possibly the City of Meridian) to needless and costly litigation to stop the project in court -- which the Dartmoor CC&Rs and plat give the Dartmoor residents the absolute right todo. Thus, the central question presented by the Kingsbridge applications is whether concerns with equity, fairness, good government, and prudence should prevail over the given fact that the Meridian City Council may have the power to approve the applications pending before it. The Dartmoor residents respectfully submit that the foregoing governmental concerns over the exercise of power should clearly prevail under the present circumstances, and they therefore plead they be spared by the Meridian City Council from litigating to enforce their indisputable private-property rights. BOI_MT2:559522.1 City Clerk, City of Meridian October 11,2004 Page 5 In sum, the Dartmoor residents would respectfully ask: What possible end can be achieved by approving a project proscribed by its recorded plat from being constructed other than subjecting all concerned parties to costly and time consuming litigation? Dartmo.or can think of none other. And for this reason alone the Kingsbridge applications should be denied. Very truly yours, /i~f3- RBB/kdp Attachment cc: Tim Wallace (via E-mail) Rick Stott (via E-mail) BOI_MT2:559522.1 "\ I "1~r- I : ~ ~ 1 "" TEN (10) FOOT WIDE E,,"SEMENr IS HEREBY RESERVED ,,"DJACENr TO ALl LOT ONES CONI/ON ~:::. TO A PUBUC RIGHT-OF-WAY -'NO ADJACENT TO 'J1oIE SUBDIVISION BOUNDAR~ FOR PUBUC UTlUTlES, DRAIN,,"GE, AND IRRIGATION FAClUTlES. 'J1oIIS EASEMENT SHALl NOT PRECLUDE 'J1oIE CONSTRUC'IION OF HARD SURFACE DRIVEWAYS AND WALKW,,"YS TO EACH LOT. ~ 1(1 LOT NUMBER \ NOTES '" ¡;¡- 2 BUILDING SETBACKS -'ND DIMENSIONAl STANDARDS IN IliIS SUBDIVISION SHALL CONPL Y WIlli I ~,. 'J1oIE ","PUC,,"BLE ZONING REGULATIONS OF' ADA COUNTY IDAHO. I I ~5 J ANY RESUBD1VlSION OF IliIS PLAT SH""LL COMPLY WITH THE ","PUCABLE ZONING REGULATIONS 8 8 IN EmCT AT THE lI...E OF IliE RESUBDIVISION. ~ I '" 4 DEVELOPER SHALL COMPLY WI'J1oI IDAHO CODE SECTION 31-380~ RElATING TO IRRIGATION RIGl-fTS. TRANSF'ER -'ND DISCl.OSURE. 11 121' <.>}: eo' EASÐAENT FOR 1IIE TEN !lILE LATERAl -L - S A STRIP OF lAND SHALL BE RESERVED Al.ONG EACH CONIION INTERIOR PROPERTY BOUNDARY UNE 'MTHIN THIS SUBDIVISION F'OR THE PURPOSE OF TRANSPORTATION Of' PROPERTY DRAIN,,"GE, AND/OR THE INSTALLATION OF "" PRESSURE IRRIGAlION SYSTEII. SAID STRIP OF lAND SHALl BE A TOTAl OF TWENTY (20) FEET IN WIDTH, BEING TEN (10) FEET ON BO'J1ol SIDES OF PROPERTY ONES. 6 LOT 1 BLOCK I, LOT 2 BLOC( 2, AND LOT Ig BLOC!( 2 ARE HEREBY DESIGNATED ""S NON-BUILDING LOTS. NO PERII-'NENT STRUCTURES REQUIRING" PERMIT SH"LL BE CONSTRUCTED UPON SAID LOTS. 7 Lor. I BLOCK I, LOT. 2 BLOc!( 2, -'NO LOT 19 BLOc!( 2 ARE CONMON ARE"S ro BE OM!ED AND MAINTAINED BY THE HOIIEOM!ERS' ASSOCIATION AND ARE NOT DEDICATED TO THE PUBUC Bur ARE RESERVED FOR USES ""S ST"TED WlIliIN THE RESTRICTIVE COVENANTS FOR TIlE SUBDIVISION. S FLOOD IRRIG"TlON SHALl NOT BE ALlOI'ED 'MTHIN TEN (10) FEET OF " DR"INF'lELD OR SUBSURFACE SEWAGE DISPOS"L SIlt. '" 9 LOT 11 BLOCK 2 IS A DEED RESTRICTED LOT AND MAY ONLY BE USED F'OR OPEN SPACE AS DEFINED IN THE NON-F'ARM OE\IElOPMENT SECTION OF THE AD" COUNTY CODE, SECTION 11-48-7 ANO IN THE PlANNED DEVELOPMENT PROVISIONS OF THE ADA COUNTY CODE FOUND IN Tln.E a. CHAPTER 9. THE DEED RESTRICTED LOT MUST ALSO ONLY BE USED IN THE M"NNER SPECIFIED IN 'J1oIE CDIIDITIONS OF ","PROV,,"L ISSUED BY ADA COUNTYS DEPAR'I\IENT OF DEVELOPMENT SERVICES. IliIS LOT MUST BE USEO IN AFORESTATED MANNER F'OR A PERIOD OF Nor LESS 1Ii-'N fll'1E£N (15) '('EARS F'ROII IliE RECOIIDING DATE OF' 10 WITH THE EXCEPTION OF LOTS I AND /0 OF' BLOCK 2, DIRECT VEHICULAR ACCESS ONTO EITHER EAGLE ROAD OR DARTMOOR DRIVE F'ROM ANY RESIDENTIAL LOT IN THIS SUBDIVISION SHALL BE PROHIBITED. 11 A 60' WIDE EASEMENT FOR THE TEN MILE LATER"L IS HEREBY RESERVED AS SHOM!. 12 'J1oIIS DE\IElOPMENT RECOGNIZES SECTION 22-4503 OF IliE IDAHO COD£. RIGl-fT TO F'ARM "cr. \/MICH STATES: ."No "DRICULTURAl OPERAlION OR -'N ","PURTEN"NCE TO IT SH"LL BE OR BECOME A NUISANCE, PRIVATE OR pueue, BY ANY GI-f-'NOEO CONDITIONS IN OR Mour l1iE SURROUNDING NONAGRICULTURAl AClIVlTlES AFTER THE SAME ItÞ.S BEEN IN OPERATION FORI,ORE 'J1oIAN ONE (1) YEAR. \\HEN THE OPERATION WAS NOT A NUIS-'NCE "r l1iE nME'lliE OPERATION BECAN: PROVIDED, l1iAT l1iE .PROVlSlONS òF IliIS SECTION SHALl NOT "'"PLY 'o\HENEIIER A NUISANCE RESULTS FROII THE II,PROPER OR NEOUG£NT OPER"TION OF' ANY AGRICULTURAl OPERAlION OR ","PURTEN-'NCE TO IT." ~ ".-....----. -.--- Numerical Subdivision Plats - Bk64 Pg6539 DARTMOOR SUB Asr# 173456, Scale: 1 inch = 1.18lnctesl SE CORNER "..... . .............~ .......... ...................... ,~'" ....... NW 1/4 SEC'T10N 28 EIIsln.... - SUrY8)'O1'O - Landplannore =tICTIVE COVENANTS' CP&F NO. 8117799 4619 Emerald Street SuIt. 0-2