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Home My WebLink AboutLetter from Tim Wallace Moffitt Thomas MOFFATT THOMAS BARRETT ROCK & FIELDS, CHTD. RECEIVED OCT 1 1 2004 Boise Idaho Falls Pocatello Eug,n, C. Thom~ John W. Bocre" R. B. R=k Riohud c. Field, Robe" E. B.k" John S. Simko John C. W=I D. Juo" Mmoing GuyT. Dmœ Lucy C. Hun", Rond']l A. P'Wrnoo Muk S. P=yo,ki S"ph,n R. Thorn~ Gl,noo M. Ch'¡,ton"o Gomld T. HŒ,h S'"" L Cuopb,U Rob", B. Bmos Jom" C. D,], Mi,h"J E. Thom~ P",icio M. O1~oo Junos C. doG!" Bmdl,y J Williuo, Le, Rodfonl Mioh"IO.Rœ DovidS.J,n"n Juo"LM",in C. Cloy ton Gill Dovid P. Gudn" Jwion E. Gobio], Ang,lo Soh", Koufmmn City of Meridian City Clerk Office US Bank Plaza Building 101SCapitoiBlvdlOthFI PO Box 829 Boise. Idaho B3701 OB29 Kimb"ly D. Ev,", Roo, B,njomin H S,hwo'" Jnn^- S"nqui" E,i,M.Bo=, B"dl,y J. Dixon J~on G. Mm"y Muk C. Pot,"nn Anillow J W']d", Shown C. Nuw,y Ty!" J And","n RŒ"ll G. M"œlf October 11, 2004 via Hand Delivery 20B 345 2000 800422 28B9 20B 3B5 53B4 Fax www.moffattcom Mo'gm W. Ri,horos, of,""",,] w,lli, C MoH;<t. 1907-1980 Kirk R. H,]v",. 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 Mayor 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 Kingsbridge. In connection with our representation of Dart moor, we have reviewed, among other documents, a letter ITom 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 Commission ("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 Let 11, Block 2 ("Lot 11"), which lies adjacent to Dartmoor and comprises a significant portion of Kings bridge. Some ofthese 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 of these residents will undoubtedly share with you the fact that they were assured that Lot 11 would remain open space and not be developed at all until at least 15 years after the recording of the 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 11,2004 Page 2 that the Meridian City Council reITain from approving any development of Kingsbridge 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 of the 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 ofthe 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 OWTler 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 1 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 1 1, 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 1 1 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 commitments made by Skyline (i.e., development limited in time and density) from the very benefits Skyline obtained for making these commitments (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) ofthe CC&Rs specifically provides as follows: Open 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 Dartmoorplat (copy of pI at 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 DEVELOP:MENT 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 INTRE MANNER SPECIFIED IN THE CONDITIONS OF APPROVAL ISSUED BY ADA COUNTY'S DEPART:MENT OF BOI_MT2,559522.1 City Clerk, City of Meridian October 11, 2004 Page 4 DEVELOPMENT SERVICES. TH1S LOT MUST BE USED IN AFORESTATED MANNER FOR A PERIOD OF NOT LESS THAN FIFTEEN (15) YEARS FROM THE RECORDING DATE OF f3/3/94/ (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 of the 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 to do. Thus, the central question presented by the Kingsbridge applications is whether concerns with equity, fairness, good governlnent, 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 fÌom 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? Dartmoor can think of none other. And for this reason alone the Kingsbridge applications should be denied. Very truly yours, 4~- RBB/kdp Attachment cc: Tim Wallace (via E-mail) Rick Stott (via E-mail) BOl.MT2,559522.1 "I , "J~"" I.,; I I ~i 1 ~I , I 11 121' ~} eo' EASEIIENT FOR 1IIE 1EN ~ILE LATER"l -L' - LOT NUMBER \ NOTES "'w- 2 : I~i 3 ",¿ 4 I< TEN (10) fOOT 'MDE El<SEMENT IS HEREBY RESERIIEO I<DJI<CENT TO I<Ll LOT UNES COM"'ON TO 4 PUBUC RIQHT-Of-W4Y AND I<DJ4CENT TO '!HE SUBDIVISION BOUNDI<R~ FOf¡ PUBUC Ul1Ul1ES, DRI<INI<GE, I<ND IRRIG411ON F4C1Ul1ES, '!HIS El<SEMENT SHI<Ll NOT PRECLUDE '!HE CONSTRUCT10N Of' HI<RD SURF4CE DRJVEWI<YS "NO W"LI<W"YS TO E"CH LOT, BUILDING SETBACKS AND DIMENSiONAL ST"ND"RDS IN '!HIS SUBDIVISiON SH"LL COMPLY 'M'!H '!HE 4PPUC"BLE ZONING REGULAT10NS Of M>4 COUNTY ID"HO, ANY RESUBDIVISION Of THIS Pv.T SH"LL COMPLY 'M'!H THE 4PPUCMLE ZONING REGULAT10NS IN EffECT 4T '!HE T1ME Of' '!HE RESUBDIVISION. DE~OPER SHALL COMPLY 'M'!H ID4HO CODE SECT1ON 31-J80~ REL"l1NG TO IRRIGAT1ON RIGHTS, TR4NSF'ER AND DISCLOSURE, 5 A STRIP OF lAND SHAll BE RESERI/EO ALONG UCH COMMON INTERIOf¡ PROPERTY BOUNDMY UNE I\!'!HIN '!HIS SUBDIVISION FOR '!HE PUI\POSE OF TRANSPOf¡TAT1()t. OF PROPERTY DR4INI<GE. AND/OR !HE INSTAl.L1.110N OF A PRESSURE IRRIGI<lION SYSTEM. SAID STRIP OF LAND SHI<Ll BE A TOrAL OF MNTY (20) fEET IN \IID'!H, BEING TEN (10) fEET ON BO'!H SIDES OF' PROPERTY UNES. S LOT 1 BLOCK I, LOT 2 BLOCK 2, AND LOT IB BLOCK 2 ME HEREBY DESIGNATED AS NON-BUILDING LOTS. NO PERMANENT STRUCTURES REQUIRING A PERMIT SHALL BE CONSTRUCTED UPON SAID LOTS. . 7 LOT 1 BLOCK " LOT.2 BLOCK 2, AND LOT 19 BLOCK 2 ME COM"'ON AREAS TO BE OVoNED AND MAINTAINED BY '!HE HOMEOVoNERS' ASSOCIAT10N AND I<RE NOT DEDICATED TO '!HE PUBUC BUT ARE RESEltVED FOR USES AS ST"TED 'M'!HIN '!HE RESIRICTlVE COVENANTS FOf¡ '!HE SUBDIVISION. 8 flOOD IRRIG"110N SH4I.L NOT BE 4I.L0\\£D \II'!HIN TEN (10) fEET Of' I< DRAlNF'1ELD OR SUBSURFACE SEWAGE DISPOSAL SITE. '" 9 LOT 11 BLOCK 2 IS A DEED RESTRICTED LOT AND MAY ONLY BE USED fOR OPEN SPI<CE AS OEF'1NED IN 'litE NON-FARM DEVELOPIoIENT SECl1ON OF' THE M>" COUIITY COOE, SECTI()t. 8-411-7 ANO IN 'litE PlANNED DEVELOPMENT PROVISiONS OF '!HE M>I< COUNTY CODE fOUNO. IN TItlE 8, CH4PTER 9, '!HE DEED RESTRICTED LOT MUST 1<1.50 ONLY BE USED IN THE IoII<NNER SPECIF'1ED IN THE CONDIT1ONS OF 4PPROVAL ISSUED BY 1<01< COUNTYS OEPI<R1\IENT OF DEVELOPMENT SERVICES, '!HIS LOT MUST BE USED IN AfORESTI<TED IoI"NNER fOR " PERIOD OF NOT LESS TH"N F'lfTEEN (IS) ~S FROM THE RECMDINc D"TE OF 10 WITH THE EXCEPTION OF LOTS I AND 10 OF BLOCK 2, DIRECT VEHICULAR ACCESS ONTO EITHER EAGLE ROAD OR DARTMOOR DRIVE FROM ANY RESIDENTIAL LOT IN THIS SUBDIVI$ION SHALL BE PROHIBITED, 11 " 80' 'MDE E4SEMEIIT FOR !WE TEN IoIILE LATER"L IS HEREBY RESERI/EO "S SHO....,." 12 '!HIS OEIlELOPMENT RECOGNIZES SECT10N 22-4503 OF !WE IDAHO CODE, RIGf1T TO FARM ACT, \\HICH STAJ'Es. ."110 AGRICULTURAL OPERAliON Of¡ AN 4PPURTENANCE. TO IT SHI<Ll BE OR BECOIolE A NUISANCE, PRIVATE OR PUBUc, BY ANY CHANGED CONDITIONS IN OR ABOUT !WE SURROUNDING NONAGRICULTURAL ACTlVll1£S AFTER '!HE SAME HAS BEEN IN OPERAT1ON fORMOf¡E 'lltAN ONE (1) '/EAR, \\HEN '!HE OPERATION WAS NOT A NUISANCE AT THE nME'!HE OPERATION BEGAN: PROVIDED. 'lliAr !HE PROVISIONS OF THIS SECTION SHI<Ll NOT 4PPLY 'IotIENEIIEII A NUISANCE RESULTS FROM THE IMPROPER Of¡ NEGUCENT OPERATION OF' ANY AGRICULTURAL OPERAT10N Of¡ APPURTENANCE TO Ir.' ~ Ii! Numerical Subdivision Plats - Bk64 P9ëS39 DÄRTMOOR SUB AriT73456, Š~ale: 1 inch = 1.18 'ncresl SE CORNER n.... T ............... ......... ...--...................... ....... NW 1/4 SECTION 28 Engln..r. - Surveyor. - Landplann.r. ~ICTIVE COVENANTS' CP&F NO. 8117799 4619 Emerald Str..t SuIt. 0-2