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HomeMy WebLinkAboutCastlebrook Sub No. 3 MI 04-008 BEFORE THE MERIDIAN CITY COUNCIL CIC 10/5/04 IN THE MATTER OF THE APPLICATION TO MODIFY THE CONDITION OF APPROVED. PRELIMINARY PLAT REGARDING THE 5-FOOT WIDE ASPHALT P A THW A Y WITHIN NAMPA MERIDIAN IRRIGATION DISTRICT'S EASEMENT FOR CASTLEBROOK SUBDIVISION NO.3. LOCATED EAST OF NORTH BLACK CAT ROAD AND SOUTH OF WEST CHERRY LANE CASE NO. MI-04-008 ORDER OF CONDITIONAL APPROVAL OF MISCELLANEOUS APPLICATION This matter coming before the City Council for Miscellaneous Application approval pursuant to Meridian City Code for Miscellaneous Application, and the Council finding that the Administrative Review is complete fTom Anna Canning, Meridian Planning and Zoning Department Director, for the Planning and Zoning Department, to the Mayor and Council, the Council takes the following action: IT IS HEREBY ORDERED THAT: 1. The subject application by Liberty Development, Inc, is approved subject to those comments as presented by staff to the Mayor and City Council at the October 5, 2004 City Council hearing, a copy of the minutes from this public hearing is attached hereto marked Exhibit "A", and by this reference incorporated herein. 2. Meridian's City Council at their October 5, 2004 City Council hearing voted unanimously to modify the condition of final plat approval for Castlebrook ORDER OF CONDITIONAL APPROVAL OF MISCELLANEOUS APPLICATION FOR A PATHWAY IN ANMID EASEMENT FOR LIBERTY DEVELOPMENT, INC (MI-04-008) Page 1 of3 Subdivision No. I Item MI 04-008, condition 1.13 to remove the reference to approval of final plat conditioned upon the agreement with Nampa Meridian and that the city recognizes and works with the applicant and Nampa-Meridian Irrigation District so they understand it will be a public pathway. NOTICE OF FINAL ACTION AND RIGHT TO REGULATORY TAKINGS ANALYSIS The Applicant is hereby notified that pursuant to Idaho Code 67-8003, the Owner may request a regulatory taking analysis. Such request must be in writing, and must be filed with the City Clerk not more than twenty-eight (28) days after the final decision concerning the matter at issue. A request for a regulatory takings analysis will toll the time period within which a Petition for Judicial Review may be filed. Please take notice that this is a [mal action of the governing body of the City of Meridian, pursuant to Idaho Code § 67-6521. An affected person being a person who has an interest in real property which may be adversely affected by this decision may, within twenty-eight (28) days after the date of this decision and order, seek a judicial review as provided by Chapter 52, Title 67, Idaho Code. By action of the City Council at its regular meeting held on the (ÔI rfL -/ day of ?lc~ ,2004. Attest: ~~ By' . Tammy eerd Mayor, City of Meridian ORDER OF CONDITIONAL APPROVAL OF MISCELLANEOUS APPLICATION FOR A PATHWAY IN A NMID EASEMENT FOR LIBERTY DEVELOPMENT, INC (MI-O4-008) Page 200 By: ~a. J::1 \ 0..1J'(U City Clerk's Office Dated: \O-..J5-04- ORDER OF CONDITIONAL APPROVAL OF MISCELLANEOUS APPLICATION FOR A P ATHW A Y IN A NMID EASEMENT FOR LIBERTY DEVELOPMENT, INC (MI-O4-008) Page 3 of 3 Item 16: Public Hearing: MI 04-008 Request to modify the condition of the approved Preliminary Plat regarding the 5-foot wide asphalt pathway within Nampa Meridian Irrigation District's easement for Castle brook Subdivision No.3 by Liberty Development, Inc. - east of North Black Cat Road and south of West Cherry Lane: De Weerd: Okay. Clear as mud? Okay. Item 16 is a Public Hearing for MI 04- 008. I will open this Public Hearing for all those wishing to testify with staff comments. Canning: Madam Mayor, Members of the Council, we -- you had an opportunity to discuss this issue, actually, a few weeks ago as related to Chesterfield, which is just south of here, and the issue was the applicant offered as a -- offered an off-site improvement as part of his application for Castlebrook Subdivision No.2 preliminary plat and that offer was to -- I think I have a -- yeah -- was to construct an off-site pathway within the Nampa-Meridian Irrigation District easement and at that time we assumed that it would just fall within other easements that we have or other arrangements that -- other arrangements that we have with the Nampa- Meridian Irrigation District. When Mr. Amar went to go plat the third final plat, this issue came up -- I'll show you that. No, I can't show you the third final plat. Sorry. It covers a portion -- this portion of the pathway. And the Nampa- Meridian Irrigation District said, no, you can't build a private pathway in that easement, it has to be a City of Meridian pathway and -- he needs to take out the pathway. So, the question before Council tonight is would you like to take over ownership of that pathway when it connects. We will have one on the north side of the drain and on the south side of the drain. So, we will have two pathway systems. There is a bridge connecting to the park at this location. So, that's one option and that wouldn't require modification to the preliminary plat necessarily. The other option would be to just relieve him of the requirement to construct a pathway. De Weerd: Okay. Counsel, questions? Bird: I don't have any questions. Canning: I'm sorry, Madam Mayor. In Chesterfield I believe what -- I might have to go back and look up the exact wording and maybe Mr. Amar could help me, but I believe the decision was that the homeowners association would take care of maintenance of the property until such time as the City of Meridian was ready to assume those responsibilities. And that's similar to language we have throughout the city. The intent is always that the city will eventually take over maintenance of those pathways. Now I'm done. Sorry. De Weerd: Thank you. Council, now do you have any questions? Okay. Rountree: Madam Mayor? "Exhibit A" Page 1 of 8 De Weerd: Yes, Mr. Rountree. Rountree: Not a question. Maybe a concern if we don't have any comments from parks and recreation folks who would have to take this on within their budget and their resources, I assume, at some point in time in the future. Canning: Madam Mayor, Members of the Council, I was a little dismayed that -- the no comment stamp that came back from Mr. Strong. De Weerd: Would the Council liaison like to comment? Wardle: Madam Mayor, I'm not going to comment on the specific actions of the department head in regards to this, as far as it wasn't discussed with myself or -- in the scope of his duties. We are going to hear from the applicant in just a minute; right? De Weerd: Uh-huh. Wardle: I'll hang onto my comments until then. De Weerd: Okay. Is the applicant here? Amar: In body. De Weerd: Were you sworn in? Amar: No. De Weerd: Is the testimony you provide tonight the truth, the whole truth, and nothing but the truth, so help you God? Amar: Yes. De Weerd: Thank you. Amar: Thank you, Madam Mayor, Council Members. For the record, Kevin Amar. I'll make this really brief. De Weerd: And your address. Amar: 114 East Idaho, Suite 230. De Weerd: Thank you. "Exhibit A" Page 2 of 8 Amar: This is similar to the application in Chesterfield. In Chesterfield, as well as this one, this is something that was not required by the city, it's not a portion of a PUD -- in fact, Castlebrook is not a PUD, it's a straight subdivision. It is something that we had requested doing to improve that area that's always left open to weed -- weeds and nuisances. At the time we went forward Nampa- Meridian had the policy of allowing a pathway, public or private, on their -- in this case their land. This is not an easement, they actually own the property. Since, then, their policy has changed and they require that it be a public pathway. So, our request and our hope is not that it be removed, I still want the pathway and I still want it landscaped, make it a public pathway and we will maintain it until the city tells us they don't want us to maintain it anymore. So, as far as I believe Councilmember Rountree's question of does the parks department have the money in the budget, in my opinion if the parks department never wants to take it over, they don't have to. That will be a determination by the parks department. Some day they may want to, but if they don't have it in the budget, we are setting it up and it's always been our intent to have the homeowners association maintain it anyway. So, whether it's public or private, the homeowners association was still going to maintain it. Rountree: So, I guess my question is Nampa-Meridian District's position is public in the sense that it's open to anybody or public in the sense that it's owned and operated or operated by a public entity? Amar: In a conversation that we had -- and I believe, Anna, were you in that meeting when we spoke with Bill Hinton? He didn't care who maintained it, he just wanted a public pathway. The pathway maintenance and -- I believe in Chesterfield we talked about that, it can be sent out to whatever private entity to maintain a pathway, but it's a public pathway. De Weerd: Okay. Mr. Wardle. Wardle: Madam Mayor, just to clarify, I believe the condition that Nampa- Meridian Irrigation puts on is something that they are -- this is a new policy for them. If the city is willing to take the ownership, certainly, the homeowners association could maintain it and I think it's something that maybe -- I'm not sure if we have to look into it legally or if this is -- the policy has begun because of some of the state statutes for open recreation and those kinds of things as far as liability is concerned and I think it's at least worth looking into for future developments to look at -- and especially this one, but if the city needs -- is going to get pathways -- and we had a pathway comment earlier, we need to do some creative things and this is one of the -- one of the things -- this developer wants a pathway, thinks it's an amenity, I agree, and if we can make it available we should and we should maybe look into doing this on future projects if the opportunity arises with the development community and the irrigation district. "Exhibit A" Page 3 of 8 Amar: I could comment about the preliminary plat. I think all of mine should just be approved, I don't need to -- 'lIleave that for your discretion. But I also don't always get what I want. Rountree: With staff conditions. Amar: I just want to throw it out there. De Weerd: Well, thank you for that -- Amar: I have sat here that long, I expect my voice to be heard. Not listened to, but heard. De Weerd: Your time is up. Anything else? Amar: Thank you. Watson: Madam Mayor? De Weerd: Yes. Watson: I know it's late and I hate to prolong the agony. I just want to be clear. His plat has been hung up in my office for months because of this last lingering issue. What will need to happen, in realty, is that the city will have to approve and sign on the dotted line an addendum to the license agreement. That's what I'm reading anyway. Amar: Can I address that? De Weerd: You bet. Amar: Condition number three of the Findings of Facts and Conclusions of Law state the pathway shall be constructed prior to the issuance of the first certificate of occupancy permit of any lots adjacent to the pathway, which, to me, indicates that the final plat will be recorded and we can be building houses. The pathway just has to be constructed prior to a certificate of occupancy. So, I don't think that would be hung up in your office. Watson: Madam Mayor, I don't have those conditions in front of me, but the construction I don't think is the issue. I think we required that you have a license agreement for the pathway prior to plat signature. But that license agreement couldn't be obtained between your company and Nampa-Meridian and so I think we are headed into a direction where you're willing to be the contact, so to speak, on the operation and maintenance, but the city is the licensee. So, it puts the city in a position of being the contact for the irrigation district and enforcing the "Exhibit A" Page40f8 maintenance with the homeowners association, unless I'm misunderstanding this. Amar: I don't see the license agreement, I'm just looking real quick, though. So, I could be -- I have been heard, just not listened to. De Weerd: Mr. Nary. Nary: I also -- Madam Mayor, Members of the Council, I don't have the conditions in front of me, but it would appear to me that they are going to have to have some amendment to the condition to make sure that it's clear as to where the future ownership and maintenance of this pathway is going to be and that's the condition we are amending tonight. Once that's done, then, I don't think there is a particular hold up. There should be some acknowledgment from Nampa- Meridian at that juncture that that meets their satisfaction to allow that pathway to be there. Amar: I was wrong, it does say that the license agreement shall be signed prior to the signature on the final plat. I guess I would -- Bird: That's the condition put on it. Amar: Correct. I guess I would ask for some consideration. We have been sitting in Brad's office for a long time. Or remove the condition of the pathway. I guess that -- I want the pathway there, I would be happy to move forward, but modify a condition so can be out of Brad's office and get onto the Priester's office -- on the Priester, Don Priester. I'm still more than willing to put in a pathway, I just want to move forward with the project. De Weerd: Okay. So, Mr. Nary, what do we need to do so this can all happen? Nary: Madam Mayor, Members of the Council, I guess what I -- what I guess it is is still up to Mr. Amar. I mean what I thought your testimony was that you're willing to construct it and the only condition that the City of Meridian has to agree to is that at some point in the future, if the city really wants to, they can take over ownership. With that acknowledgment of -- if the Council is willing to do that tonight, I guess I don't know how much more delay there would be with Nampa- Meridian. I would assume it wouldn't be much and, then, Mr. Watson could sign your plat. Amar: Or the license agreement with Nampa-Meridian, which could take two to three months, so -- Nary: And your only other option, then, is to -- to not agree to that condition and remove the condition to build the pathway there, which you're saying you want "Exhibit A" Page 5 of 8 anyway. You were saying if you remove the condition, you will just build it anyway? And, then, the Council doesn't -- and, Mr. Watson, I -- Amar: Accept it as public. I guess -- I guess I'm a little confused on the semantics. If the city is saying that we have to -- they are not going to issue -- in the conditions they won't issue any certificate of occupancies for those lots adjacent to the pathway prior to the pathway being constructed, can we sign the final plat and move forward? That holds a number of lots for me to sell those lots, which gives me guarantee or effort to construct this pathway. It still moves the process forward, everybody gets what they want, but the process isn't delayed on my behalf for another couple of months while I'm waiting for semantics. mean we are -- guess that's what I'm asking. I'm not trying to be difficultly, I'm not trying to be anything, I'm sure Anna's tired of me calling and asking and I'm sure Brad is also. It's an issue we have been talking about for months. Nary: Madam Mayor, Members of the Council, I guess, Mr. Watson, I mean what -- what's your thoughts on what he's asking? He's simply saying if there is a condition that, instead, deals -- allows you to sign the plat now and there is some other conditions later that still assure the performance of having the pathway constructed, would that be satisfactory. Watson: Madam Mayor, yes, I guess it boils down to whether you want the pathway there. If the answer is yes, then, that condition tied to the final plat signature could be deleted and the construction of it could be tied to another milestone, such as COs on those lots backing up to it. Amar: Which it is tied to that already. Watson: Right. De Weerd: Okay. Nary: So, you can do that? Watson: Yes. De Weerd: Any further clarification, Council, on what's being requested? Rountree: Probably for specificity, if Brad has the condition number and the modification, I assume, would be to -- if we want to do this, to allow the signature of the final plat, without agreement with Nampa-Meridian, all other conditions to be complied with. Watson: Madam Mayor and Councilmember Rountree, it's in 1.13 of the order of conditional approval. Submit a signed license agreement with Nampa-Meridian "Exhibit A" Page 6 of 8 Irrigation District for the pathway and culvert foot bridge prior to signature on the final plat. That's the way it reads right now. You could probably delete that whole sentence. Rountree: Okay. And still accomplish the path. Watson: There will need to be a license agreement at some point in the future. Rountree: Actually, you could leave the first part of that sentence and just strike the signature of the final plat. Watson: Sure. Rountree: Okay. De Weerd: Okay. Okay. Well- Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: I move that we close the Public Hearing on Item No. 16. Bird: Second. De Weerd: It's been moved and seconded to close the Public Hearing. All those in favor say aye. All ayes. Motion carries. MOTION CARRIED: ALL AYES. Rountree: Madam Mayor? De Weerd: Yes, Mr. Rountree. Rountree: I move that we modify the condition of final plat approval for Castlebrook Subdivision No.1, Item MI 04-008, condition 1.13, to remove the reference to approval of final plat conditioned upon the agreement with Nampa- Meridian. Bird: Second. Rountree: Just remove that last portion on the final plat. Bird: Second. Rountree: And that the city recognizes and works with the applicant and "Exhibit A" Page70f8 Nampa-Meridian Irrigation District, so they understand that it will be a public pathway. Bird: Second agrees. De Weerd: Okay. Is there any further discussion? The motion is to approve Item 16. Hearing no further discussion, Mr. Clerk. Roll-Call: Bird, yea; Rountree, yea; Wardle, yea. MOTION CARRIED: ALL AYES. "Exhibit A" Page80f8