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HomeMy WebLinkAboutNovember 3, 2004 C/C Minutes Meridian City Council November 3,2004 Page 16 0162 Roll-Call: Bird, yea; Rountree, yea; Wardle, absent; Donnell, yea. MOTION CARRIED: THREE AYES. ONE ABSENT. Item 14: AP 04-003 Request to appeal the decision and order of the Planning and Zoning Commission denying the Preliminary Plat of Kinasbridae Subdivision by Vision First, LLC - 4070 South Eagle Road: De Weerd: Thank you. Item 14 is AP 04-003 and I will ask, Anna, to briefly introduce this application and, then, ask our city attorney to explain the process or do we want to reverse that order? Nary: It's your preference, Madam Mayor. De Weerd: Well, we will start will you, Mr. Nary. Nary: Okay. De Weerd: Since you're so amenable tonight. Nary: Madam Mayor, Members of the Council, this matter before you here, Item 14, is not a Public Hearing, it is an appeal of a decision by the Planning and Zoning Commission denying the preliminary plat. That is the decision to grant -- or to approve or deny a preliminary plat is within the purview of the Planning and Zoning Commission. In their decision and order they list a number of reasons for their denial and one of the those reasons is based on a legal premise that, in my opinion, is in error. Their belief that the denial was appropriate for the plat was because they had. recommended denial of annexation, because there was an issue that was raised at the Planning and Zoning hearing regarding some covenants between an adjoining property, as Well as some issues regarding the applicability of an Ada County ordinance to this property. The Planning and Zoning Commission made this decision in regards to the Ada County ordinance in error, because the Ada County ordinance would not apply to the City of Meridian if this property were to be annexed. So, basing that premise as a reason for recommending denial of the annexation and, therefore, recommending denial of the preliminary plat, is, in my opinion, an error and so that is something that you would need to consider in this appeal tonight. Again, it's not a Public Hearing, so what I recommend, Council, for you to do is to put on the record the reasons that are here in front of you tonight, so the record is clear. Again, one of those -- the rest of the conditions that they listed are within their purview, it's just the one that was based on a faulty legal premise that I believe is in error. If you concur with that decision, then, I would give the applicant an opportunity to also make comment and, then, Council, you can make the decision on whether you agree with that or not and, then, I would recommend the following action: If you chose to grant the appeal, that you re-notice all of these matters for a hearing later and not tonight, because the plat itself has not initially been -- been noticed, because, again, it was not a Public Hearing and continue all of these matters for one hearing in front of this body. You also have the option to Meridian City Council November 3,2004 Page 17 0162 remand this matter back to the Planning and Zoning Commission for their review if you'd like, although they did address it very briefly at their meeting in October when this was requested for reconsideration. So, you're not obligated to send it back, you can hear it again. Or, in the alternative, you can deny the appeal of this matter entirely and if you do that, it's not necessary for you to hear the annexation and zoning or the CUP, but you can certainly hear those if you wish and make a decision separately on those applications. So, you have a couple of different options in front of you, but that's - process-wise that's how we are here at this point and how you can go forward. De Weerd: So, Mr. Nary, I guess the item that you think kind of leaves us open legally, is that -- Nary: It's in their decision and order -- yes. Decision and order, it is C-1-B and that, again, deals with -- is an issue that was raised at the Public Hearing at the Planning and Zoning Commission regarding some discrepancies -- or at least belief by the -- the members of the public about some covenants in regards to the adjoining property, that, in my opinion, aren't relative to whether or not you choose to annex. If you hear this matter, you still have within your discretion the decision on whether to annex this property, whether to zone it as it's being requested, to grant the conditional uses with the changes to the subdivision that are being requested and to approve the subdivision as it's designed. All of those are within your discretion. My only point is that the decision -- or the premise that was based at the annexation should be denied because of the applicability of the Ada County ordinance to this property, once it's annexed to the City of Meridian, is wrong. It is not applicable to the city once you annex it. The other premise that the covenants of a different subdivision may apply is not the city's battle, that is -- that is a -- if a lawsuit is to stem from that, that is between that adjoining property and this property. That's not the city's fight and that's not within the city's purview to decide on when making a decision whether to annex this property or not. De Weerd: Okay. Council, do you have any questions for Mr. Nary? Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: Mr. Nary, you indicated in process that one of the options is the possibility of continuing the hearings that we have scheduled tonight. Is that the right word or would we table them or just re-notice all of the hearings pursuant to this matter? Nary: Madam Mayor, Council-member Rountree, we would be required re-notice them anyway, because of the -- because the plat itself hasn't been noticed. Mr. Berg's office can re-notice all of these -- these hearings in one notice anyway. So, I'm not as hung up as the prior counsel on which word is more appropriate, but you could certainly set all of these matters over, notice them up in one -- in one notice to all the property owners as required by statute and you would be fine. To a specific date. And you can Meridian City Council November 3, 2004 Page 18 0162 certainly pick that date tonight, so assist Mr. Berg in getting that notice out, but you could certainly do that. De Weerd: I think all property owners are here, so that would be easy. Nary: It appears there are certainly many of them here. De Weerd: Okay. Well, I think counsel -- Mr. Nary did a good summary, so I will save Mrs. Canning from that. Would the applicant like to add any further information to this appeal? If you will, please, state your name and address. Elliott: Thank you, Madam Mayor, Members of the Council. My name is Ken Elliott. E-I-I-i-o-t-t. I'm resident legal counsel for the applicant Vision First, Limited Liability Company. Our address is 661 South Rivershore Lane, Suite 120, Eagle. 83616. Randy Cuarno, the CEO of Vision First and the managing member of the LLC, is here with me this evening and is prepared to answer any questions that the Council might have. Just to briefly follow up on what the city attorney said, by filing this appeal we are not asking the City Council to make a quick interpretation of this Dartmoor covenant and support the Council's judgment for the conclusions of the Planning and Zoning Commission. We are just asking the City Council to conclude that the interpretation of the private covenant is outside the scope of the City Council's decision when finding if annexation is in the public interest. As the city attorney recommended, we think that the decision by declaring that the city takes no position and makes no findings or conclusions on that private covenant or it's continued enforceability, would take the city out of the middle of any potential litigation between the applicants and the Dartmoor residents and would leave it to us to resolve as a private matter, either amicably or with some assistance from the district court. We are prepared to do that and we think that the city's decision as to public interest and the grounds for annexation and plat approval should be based on the Comp Plan and the area of impact agreement between the city and Ada County and we would respectfully ask the City Council, as Mr. Nary has recommended, to grant our appeal and, then, to reschedule these three files for a combined hearing at the City Council at a later date. Thank you very much. If you have any questions I would be happy to answer them. De Weerd: Council, any questions? Bird: I have none, Mayor. Rountree: I don't have any. De Weerd: Okay. Thank you. Okay. Council? Bird: Madam Mayor? De Weerd: Yes, Mr. Bird. Meridian City Council November 3,2004 Page 190162 Bird: Just the legality. What we need to do is -- you have not opened the public hearings on 15 and 16, we are just dealing with 14 right now; am I not right? Nary: Yes. That's right. Bird: So -- and we need to table all three to a certain date and get them re-noticed, all three of them. Is that not right, Mr. Attorney? Nary: Yes. Bird: Thank you. Nary: We have to make a motion on the appeal. Bird: We will have to make a motion on the appeal separate. Nary: Correct. Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: Point of clarification on the last comment, that we would have two separate motions in the event that that's what we are going to do? Nary: Madam Mayor -- Rountree: A motion on the appeal and, then, a motion to set the matter aside or hear it tonight or whatever. Nary: Madam Mayor, Members of the Council, Council-member Rountree that is correct. You would need to make one motion on the appeal on whether you choose to grant the appeal or deny that and, then, a second motion as to whatever action you wish to take, setting all of these three matters over to a date certain for -- and direct that they be noticed up as required, remanding it if you wish - I guess those would be your two options. De Weerd: Mr. Nary, I guess just because I'm not going to try and explain what you have already explained, because we have already been down that road, but the whole reason the 15 and 16 -- items 15 and 16 would make sense to re-notice and continued is they should accompany the plat and because the plat has not been noticed, it cannot be heard tonight. Nary: Madam Mayor, Members of the Council, that is exactly right. Meridian City Council November 3, 2004 Page 20 0162 De Weerd: Okay. Well, you explained it very well. And it was also your recommendation that the appeal be considered because of the legality issue? Nary: Yes, Madam Mayor. De Weerd: Of one of the -- Nary: Yes, Madam Mayor. De Weerd: Okay. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: If we don't have anymore discussion, I will try this. The attorney might have to help me along here, but I would move that we grant the appeal of the decision and order of the Planning and Zoning Commission, AP 04-003, denying the preliminary plat of Kingsbridge Subdivision by Vision First, LLC. I guess that's all I have to say on that one. Rountree: I will second that. De Weerd: Okay. Mr. Bird, just to clarify, the appeal is to -- your motion was to approve the appeal to hear the presentation on the preliminary plat. Bird: Yes. De Weerd: Not to approve the preliminary plat. Bird: Not to approve the preliminary plat, to approve the appeal of the decision and order. De Weerd: Okay. Okay. Is there any further discussion? Mr. Berg. Roll-Call: Bird, yea; Rountree, yea; Wardle, absent; Donnell, yea. MOTION CARRIED: THREE AYES. ONE ABSENT. Item 16: Continued Public Hearing from October 19, 2004: AZ. 04-023 Request for Annexation and Zoning of 76.72 acres from RUT to R-4 zone for proposed Kinasbridae Subdivision by Vision First, LLC - 4070 South Eagle Road: Continued Public Hearing from October 19, 2004: CUP 04-032 Request for a Conditional Use Permit for a Planned Development Item 15: Meridian City Council November 3, 2004 Page 21 of 62 consisting of single-family residential lots with reductions to the minimum requirements for lot size, street frontage and request to exceed the maximum block length allowed for proposed Kinasbridae Subdivision by Vision First, LLC - 4070 South Eagle Road: De Weerd: Thank you. Bird: Now, Madam Mayor, I will try all three of them. I move that we re-notice on Items 14, 15 and 16 -- 14, 15 and 16, Kingsbridge Subdivision, to set the date of November 30th, 2004. Donnell: I second that. De Weerd: Okay. It's been moved and seconded to re-notice Items 15 and 16 and the preliminary plat, Item 14, for November 30th. Is there any discussion? Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: I'd just point out that if we act favorably on that motion, that you cannot imply that this is an approval of this application or this annexation, it's simply a matter to bring it back before Council as a package. De Weerd: Okay. Bird: And I agree with that statement. That's very good. De Weerd: So noted. Mr. Berg, will you call -- oh, I don't need to ask you to do that. All those in favor say aye. All ayes. Motion carries. MOTION CARRIED: THREE AYES. ONE ABSENT. Canning: Madam Mayor, before the applicant leaves, we did -- as staff we did want to point out that we have received the full copies of the revised preliminary plat, so staff will need those as soon as possible if they are going to prepare any kind of response to that. Berg: Madam Mayor? De Weerd: Mr. Berg. Berg: We will need that also for the notice, if we are going to send out a notice. I'm sure the public would like to see the most current plat that's going to be before you in their application. Meridian City Council November 3, 2004 Page 22 0162 De Weerd: Okay. Thank you. And so I guess all of those that are here on those items, the date has been -- we really like seeing you here and we appreciate your patience, but -- so we will hear this item, then, on November 30th. There is no more appeals or anything, so public testimony will be taken on the 30th of November. Item 18: Public Hearing: CUP 04-029 Request for a Conditional Use Permit for a daycare facility for 30 to 40 children in an R-B zone for Condra Steeves Davcare Center by Condra and Donald Steeves - 1258 East Cougar Creek Drive: De Weerd: Okay. I will go ahead and open the Public Hearing for Item 18, CUP 04-029 with staff comments. Canning: Madam Mayor, Members of the Council, I was not here for the reconsideration hearing, but this is a reconsideration item for this day care. The conditional use permit came before you for -- it was for 30 children, that's what would be supported by the lot layout. The applicant did request reconsideration and Mr. Bird did change his motion, I believe, to -- or Mr. Rountree, I'm sorry. Rountree: I will admit to it. Canning: And staff does not have any -- we do not have anything regarding the proposed changes to the initial recommendation, so I'm going to let the applicant present those to you. De Weerd: Okay. Any further comments? Okay. Would the applicant like to come forward? Steeves: Madam Mayor, Members of the Council, Condra Steeves, 7035 North Linder Road, Meridian. De Weerd: Thank you. Steeves: We are actually going to tag team it tonight, because I am doing a part and they are doing whatever. I don't -- anyway, for the reconsideration, we had first asked for 30 to 40 students and the preschool noted as it's set as a day care, but in the preschool we have now changed our request from 30 to 40 to 27, which is our current enrollment, dropping to 25 at reenrollment. And that changes it 30 percent in our numbers that we have gone down. There was two main issues, the size and the safety, and we are willing to drop down to those numbers that we had talked about. That also could be extrapolated to traffic, too, 30 percent decrease, and that -- in the safety issues we have passed our Central District Health inspection, they have done their safety stuff on it, we have passed our fire marshal thing and -- I mean inspection and we also have talked to the police department and have gotten some good tips on how to secure the home. There would not be anyone living in it after hours. We are 9:00 to 3:00 and,