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HomeMy WebLinkAboutApril 18, 2006 C/C Minutes '. Meridian City Council April 18. 2006 Page 73 of 99 Item 19: Public Hearing: VAR 06-002 Request for a Variance for two access points to Eagle Road SH / 55 for Gateway Marketplace by landmark Development - southeast corner of Ustick Road and Eagle Road: De Weerd: Okay. Item 19. Rountree: I need to recuse myself. De Weerd: Okay. Mr. Rountree is recusing himself, so I will open Item 19, Public Hearing V AR 06-002 with staff comments. Canning: Madam Mayor, Members of the Council -- actually, I should probably go back to the one I was just at. Sorry. The applicant -- this is the request for the variance. The applicant is proposing two access points to Eagle Road. My notes are incorrect once again. Sorry about that. One would be a full access point located here. The other one is right-in, right-out only. That's the northern of the two proposed access points. This access point would have lined up with the Bienville access point across Eagle Road. I am going to briefly go through some of the reasons why staff is recommending denial of the various application. The development agreement clearly states that no access points were proposed or addressed as part of the annexation application and the development agreement between the applicant and the city requires, again, as we have already discussed, either a public or a private street backage road that would be constructed parallel to Eagle Road and ACHD -- this is another twist on that. One of the reasons that that collector road is so important is also that ACHD has stated that -- I'm sorry. I'm getting confused. That ACHD with that has -- we do have these three access points, so the need for the two on Eagle Road are diminished. They have two going onto Ustick and they will have three going out to Allys Way. The access points do not meet ITD policy standards for being at the half mile. ITD specifically stated their opposition to access at this site in 2003 and the City of Meridian incorporated their recommendation into the consideration for annexation. Now, the letters received from ITD during 2003, 2004, do talk about approving access points, but they make no guarantees that any would be approved. Most recently ITD has said they will conditionally approve the access points if the City Council approves the variance. This- - when we started talking about the frontage, backage road with ACHD, ACHD also pointed out that the reason they acquired the property that they did to build the collector road was to alleviate the need for access points onto Eagle Road. If Council does approve a number of additional access points to Eagle Road between Ustick and Fairview, ACHD may decide that it's not in the best interest to provide the separate road system, since everyone will be just accessing Eagle from their access points. So, this is kind of the other half of that -- that collector road story is that for that to be a viable investment from the highway district, there needs to be limited access on Eagle Road, so that people are actually using those collector road systems for what they were intended, which was to relieve pressure from Eagle Road. Moving on. In this instance the City Council is specifically on record during the 2004 hearing process opposing access points in Eagle Road for the eastern side of the development and you did require the frontage road access only. In Councilmember Bird's motion it said -- he ! Meridian City Council April 18.2006 Page 74 of 99 stated: We are basically just annexing the property. We are not giving any go ahead on anything or any design. So, with that said I would move that we approve the request for Kissler and moved on from there. So, there wasn't specific approval of the access points or any of the development with the annexation request. Again, as I pointed out earlier today, the traffic data from 2004 -- we don't have updated 2005 numbers yet, but it would support not approving the variance for safety concerns. Our greatest number of traffic accidents do occur along Eagle Road. The sixth reason for recommending denial of the variance, the access points are not shown on the Eagle Road corridor study, nor are they shown on the Eagle Road arterial study, which was an alternate study. And, finally, the request does not meet the standards for access approval as required by the UDC and they don't meet the variance findings from the UDC as well. So, you do have Finding before you tonight. Those are for denial. And with that I will answer any questions that Council may have. De Weerd: Okay. Council, any questions? Bird: I have none now. De Weerd: Okay. Would the applicant -- Thompson: Madam Mayor, Members of the Council, my name is Tamara Thompson, landmark Development Group, 1882 Taluka Way in Boise. Just for the record, I'd like to give you my background and credentials. I have worked with and for commercial retailers and developers since 1982, assisting in site planning, site development, site selection, entitlements, construction and operations. I have specialized knowledge in access issues as it relates to retail developments. We are proposing two access points on Eagle Road at approximately 850 feet and 1,350 feet from Ustick Road. Those dimensions are from the center line of Ustick Road. The existing development agreement discusses in several areas the potential connection and access to Eagle Road. But specifically it states that the applicant and property owners are to work with ITD for access. Immediately after the development agreement was executed in April of '04, the property owner was Mr. Kissler, which he still owns a portion of the property today. He immediately started working with ITD and Mr. Kissler was issued an e-mail from ITD in October of '04 stating approval and the details for access onto Eagle Road at the two locations that we are currently proposing. In his mind he thought access was done and, I'm sorry, Anna, could you go forward a few? I have -- right there. One back, please. That one. Yes. This is a letter that Mr. Kissler received from ITD, which, I'm sorry, I'm not able to read. I have submitted this to the city. Back in February I gave the city a copy, so I don't know if you were given a copy of it. But, basically, it was a meeting between several members of ITD, including Chuck Winder and Mr. Kissler and the outcome was that -- number one says full access with the construction of a deceleration lane will be granted at the southern edge of the parcel approximately a quarter mile from the intersection, to be either shared with the adjacent property owner or a cross-access agreement shall be given to that owner. And number two is a right-in, right-out access with the construction of a deceleration lane will be granted at the appellant's preferred location within a minimum distance of 780 feet from the south edge Meridian City CounCil April 18,2006 Page 75 of 99 of Ustick to the north edge the approach to a maximum of 930 feet. The right-out movement controls the minimum distance. If you want a right-out -- I'm sorry, a right-in only access, we can reevaluate it and get it more southern along the property. And there is a couple other things there. Hopefully you have a copy of that. But at that point that -- that e-mail is dated October 25th of '04. Mr. Kissler thought the access was a done deal. The existing development agreement language should grandfather this project, since it was executed over a year prior to the new ordinance. The ITD access executive committee re-approved the proposed access points on March 22nd. The City Council should feel comfortable that ITD's review and analysis of our traffic impact report that was prepared by Stanley Consultants is adequate and ITD did review that report to come up with their decision. The design for the Eagle Road corridor shows the proposed approaches. One forward, please. Go to the next one and, then, stop. One more, please. These are getting fairly small. This is -- this is Lowe's here. This is the Eagle Road concept plan. I went to ITD, they gave me copies of their pull-outs, so they have a binder, then, they have kind of some pull-out aerials that go along with that. This design was presented to the public at an open house at the Hilton Garden Inn on June 15th and 16th of 2005. And the -- I'll get my copy, so I can tell you exactly what it shows. What this shows is that there is access here and access here. And there and there. And on the opposite side of the road there is access right there and at that location and at that location and it does not show anything here on the northwest corner, which subsequently has been given three access points. But at the time of this it was not. So, this is for the north side of the road. And this is for the -- for the median design going in. Once the median goes in this gets -- from the full access that they have right now to a right-in, right-out and, then, this one you can see there is some channelization in the median, where they would be given a left-in, right-in, right-out and, then, this property here with that channelization would have a left-in, right-in, right-out. One more, please. In front of our site the two -- and I'm sorry you can't see this. The two access points that we are proposing here for a right-in, right-out and here for a full access, you can see that -- that they have accommodated that in their design of the median and, basically, what this has is it's a channelized left-in and, then, a channelized left-out. So, you can't go straight across. But it's not the same as what the -- like south of Fairview where all the accidents are occurring that -- you know, it's not just a free for all, that it is, actually, more controlled. And, again, that's -- these designs were presented to the public on June 15th and 16th of 2005. Both the northeast corner, which is Lowe's, and the northwest corner, which is the proposed Kohl's, utilize backage roads and multiple access points onto Eagle Road. Go backwards. Right there is fine. Mr. Unger stole my exhibit before, by the way. The Lowe's sits here and they do have a backage road that gets them to their full access point here and, then, Mr. Moore in his development is required to put in an access point, plus he has three accesses onto Eagle Road. Lowe's has two access points there. So, both the northeast corner and the northwest corner utilize backage roads and multiple access points onto Eagle Road. We are asking for the same access at the same locations. So, basically, the distance off of Ustick is consistent for the access points that we are requesting. What we are asking for is that the playing field be level. It's an issue of fairness and the exact same accesses have been granted on the north corners. Eliminating access on Eagle Road will destroy the convenience factor of the site. Failure to grant access will substantially Meridian City Council April 18,2006 Page 76 of 99 impair its access for its highest and best use. Factors contributing to the site's highest and best use of high density commercial retail include its superior visibility. It's a large, relatively flat, rectangular parcel with significant state highway frontage located at a signalized intersection of a state highway and a principal arterial. It's located on the going home side of the state highway. It's in close proximity to 1-84. It is mixed use regional land use designation and general commercial zoning designation. It's located in an area of ongoing intense development. The existing public services are sufficient to service this use and ITD's 2004 and 2006 approval to -- of the two approaches on Eagle Road. Reasonable access for this site consists of two accesses on Eagle Road and two on Ustick Road and an access to the future backage road. With these accesses the property will accommodate a retail center. Denial of the property's two Eagle accesses will unreasonable burden the site. Access to Ustick only does not constitute reasonable access. With the elimination of access onto Eagle Road the developability of the site will be limited due to increased congestion. The overall square footage of the project will be -- will need to be reduced. The use down graded to office and there is a high probability that the site or a portion of the site will sit vacant. The highest and best use for the property changes dramatically for high intensity retail commercial to that of a much lower value use of an office park development with a minor secondary retail commercial component and our brokers are estimating that, basically, the retail component of this project would go down to ten percent of the size, so roughly 20,000 square feet, instead of -- yeah, 25,000 square feet, instead 250,000. Convenient access -- convenient Eagle Road access for trip capture is critical for commercial purposes. The variance finding -- the variance does not grant special right or privilege that is consistent with all the other commercial centers along Eagle Road and specifically at this corner. It relieves undue hardship. The access to the backage road of Allys Way and at the half mile point -- I'm sorry, Anna, could you go back one. Ultimately, the backage road will connect to the half mile point. We -- like I said, we have cross-access, but we don't necessarily have a construction easement, but this only gets here. So, even with access to this backage road we still ultimately only have access to Ustick, which we already have two accesses onto Ustick. So, it doesn't help us much until this road gets through all the way, which is the future plan, but we are at the mercy of other land developers and that would limit our ability to develop anytime soon. So, that would potentially down grade the site or put on hold indefinitely. Also, the site has two deeded access points onto Eagle Road and we have to proceed per the 2004 development agreement stating to work with ITD, which this property owner did immediately. And the variance shall not be detrimental to public health, safety, and welfare. ITD has analyzed our traffic impact study and it's comfortable that the access can be designed safely, which I have shown you with the channelized accesses. And our traffic impact study shows that the level of service at the Ustick and Eagle intersection operates at a better level of service with Eagle Road access. With that I will turn over the microphone to Patrick Dobie, our traffic consultant. De Weerd: Okay. Just to note the time is very short. Please state your name and address. "- Meridian City Council April 18, 2006 Page 77 of 99 Dobie: Madam Mayor, Members of the Council, my name is Patrick Dobie. My address is 777 Heartstone Drive in Boise. Let me give you a little bit of the background on this site. In 1995 the Idaho Transportation Department acquired additional right of way to widen the highway. The current -- the owner of the property at that time was Fearless Ferris company. They sold the right of way to ITD for some compensation and two access points. Those access points were included in the right of way contract and they were deeded access easements, which was a substantial portion of the compensation to the right of way that was taken by the state. Early in the planning process, around February of 2004, we attended a workshop with the Idaho Transportation Department to look at a concept study for a median divider on Eagle Road. Following that meeting we prepared a traffic impact study and reviewed with the staff at ITD the needs of the project and the transportation impacts that could be created by restriction of access. The state reviewed that study which contained a finding that the site could not provide -- that without a direct access to Eagle Road reasonable access to the site could not be accommodated. Reasonableness was quantified with the objective criteria that dealt with a level of service, on site queue lanes, delays, internal circulation problems, and the loss of access to pass-by -- De Weerd: Sir, if you will, please, summarize and conclude. Dobie: Okay. If I may, the -- based upon commonly accepted engineering criteria -- and for the record I'm going to submit three documents. One is the Access Management Manual of the Transportation Research Board, the Traffic Engineering Handbook of the Institute of Transportation Engineers, and the Policy of Geometric Design for Highways and Streets by the American Association of State Transportation Officials. In addition to that, a copy of the letter that Mr. Kissler received from the Idaho Transportation Department approving the locations of the driveways. What these documents show is that the proposed access do not create any safety or operational impacts on the highway and that they can be improved without any interference or any detriment to public health. Thank you. De Weerd: If you will submit those to the city clerk. Thank you, Okay. This is a Public Hearing. Is there any public testimony? Strite: Madam Mayor, Members of the Council, Billy Ray Strite, and I am a member of the public. However, I come on behalf of Mr. Kissler, so I hope you will give me just two or three seconds. De Weerd: I'll give you three minutes. How about that? Strite: Three minutes. That's excellent. Thank you very much. He asked me to pose two questions to the Council as it related to the access approval process. The first of which is that is a variance actually necessary considering the fact that we proposed, we submitted, and were approved an annexation and a rezone which were all tied together, if you will, by a concept use plan. That concept use plan delineated the two deeded access points onto Eagle Road. So, his contention is since this preceded the UDC, that Meridian City Council April 18, 2006 Page 78 of 99 is, in fact, a variance even necessary. Similarly, he has asked me to suggest that under the policy, development along federal and state highways in the UDC 11-3-H-3, the decision-making body may consider and apply modifications to the standard of this section upon specific recommendation of the Idaho Transportation Department. It makes no reference to the requirements for a variance. So, I will make this very quick. I'd like to propose and I'd like make part of the record the original concept plan delineating the two required access points that were approved under the March 16th date of '04, I believe, Mr. Nary. The development agreement and the Findings of Facts. And, lastly, Mr. Kissler would suggest that if, in fact, the variance is required, should he not be granted the same Findings of Facts as the Kohl's approval dated in March of '05. With that I will hand you these documents. Any questions, if you might have them? Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Mr. Strite, I -- as you testified, Mr. Kissler feels that the motion of the annexation and the development agreement back when it was done was giving approval to these -- entries -- these two entries on and off Eagle Road; am I not right? Strite: Madam Mayor, Councilman Bird, I think that the parcel annexation sketch, which was the zone use map, that was actually requested by the staff and the Council at the time, became part and a parcel, if you will, to the approved development agreement and the final Findings of Facts and Conclusions of Law of 3/16/04. And if you -- Will, if you could pass those out, I don't think that this thing reads very, but you will note that the two access points delineated as B on this map refer to as ITD approved access points. And it's our contention that this plan, which was requested by this Council -- a previous Council, was part and parcel to those agreements. And, thus, it's Mr. Kissler's contention that a variance, in fact, wasn't even needed. Or, certainly, if a variance is needed, the Findings of Facts and Conclusions of Law should be consistent with that of the Kohl's application, which was approved a year later. And that's all I have. I will paraphrase Councilman Wardle and that's my last word. De Weerd: Is there any further testimony on this application? Okay. Any final word? Dobie: Madam Mayor -- De Weerd: If you will just restate your name and address. Dobie: It's Patrick Dobie, 777 Heartstone Drive. The city has adopted, you know, an access control plan for the state highway system through the city and it's a very progressive, far thinking proposal and -- but there are -- there are instances where variances from that policy are appropriate. Restricting access to the highway creates problems that need to be considered. It increases u-turns at intersections. It takes green time allocation away from the through movements on the highway and assigns it to side streets. This decreases the efficiency of the highway. As far as safety is Meridian City Council April 18, 2006 Page 79 of 99 concerned, in looking at the safety of a road -- or an intersection, generally it's compared to what the base rate is for similar facility within the state of Idaho. For the intersections along Eagle Road the base rate is .58 accidents per a million vehicles. The accident rate at the intersections on Eagle Road is .62 accidents per million vehicles. It's roughly ten to 15 percent higher than similar facilities around the state and, quite honestly, there aren't a lot of similar facilities in the state that have this high of traffic volume, you know, on a five lane urban road. The segment accident rate, on the other hand, is quite different. Now, these are -- these are the driveways and this is the spacing between the signalized intersections. The base rate for the state is 3.44 accidents per million vehicle miles, but the segment of Eagle Road adjacent to the site is only 1.70, approximately half of the base rate. So, the driveway regimen that exists on the road is actually safer through the same facilities than other parts of the state, which indicates -- and I'm sure this was a consideration that ITD weighed in in making their decision to approve these driveways. Allowing a few driveways and allowing driveways at the spacing that was approved for this site actually improves the safety and improves the operational efficiency of the highway. And these are the criteria that ITD uses to grant variances, they are included in their access policy manual, and they are included in the IDAPA standards. Now, as far as the access policy manual of ITD, it recommends that on type four urban principal arterials, that the intersections be limited to half mile spacing, except if a frontage road is involved. In the case of a frontage road, full movement driveways can be approved at a quarter mile spacing. And the proposed entrance to the site at the south driveway location is the quarter mile point. In the planning that was done for the median divider on Eagle Road, a break in the median is being proposed and left turns are being accommodated through that movement. I'm sorry. That location. This is consistent with ITD's policy and since your ordinance reflects ITD policy, it should be consistent with your ordinance or at least it should be the grounds for granting a variance. Thank you. De Weerd: Thank you. Any questions, Council? Okay. Any other comments? Bird: I have none, Mayor. Borton: Madam Mayor? De Weerd: Yes, Mr. Borton. Borton: A question for legal counsel. Can you clarify succinctly, briefly, clearly -- the question, as I see it, is whether or not the variance is -- should or should not be granted, not whether or not a variance is even necessary in this situation. Can you clarify the legal basis for needing to get a variance for this access? I mean there has been discussion -- I don't like hearing concerns from applicants about whether or not there was prior agreements or prior understandings. I empathize with those frustrations. But when there is discussion about a belief that a variance isn't even required, that that's not accurate. Can you sort of spell that out? . Meridian City Council April 18,2006 Page 80 of 99 Nary: I'll try. Madam Mayor, Members of the Council, Councilmember Borton, it seems like we have heard a lot of testimony in regards to some grandfather right and I think what the planning director stated initially is correct, is that you don't have a grandfather right to a concept plan. You have a grandfather right to a use that's already been approved. All that this property had approved is an annexation. The findings in the minutes reflective at the time indicated that the concept plan was merely that. This is sometimes referred to in some settings as a bubble drawing and this is not a -- a transportation plan, this is not a circulation plan, this is not anything other than a concept of where the annexation parcels are. So, there is no grandfather right. All of the development agreements that the city has require you to comply with the laws of the city when you apply for further development. Annexation is one part of the puzzle and that's all that's been accomplished on this parcel prior to this request for this preliminary plat. So, it appears that the development agreement at the time and the minutes reflect that, that the intent was that the concept plan was adequate for the comfort level of the Council in office -- seated at the time to annex the parcel, but there was clear direction, both in the minutes and the development agreement, that access was not resolved or decided. It was placed on the record that they still needed to bring back all of the -- all of what's in front of you today in regards to a plat. It's, I guess, my opinion that the city is the land use agency, not the Idaho Transportation Department. The decision on the plat and the access to the roadway is the city's decision, not the highway district. They grant approval to access, contingent upon your decision that the access goes there. So, it's -- so there is no grandfather right that's being -- being impinged on here. There was no right that the applicant had prior to making this request for this parcel. The other properties which is being raised north of Ustick, the property immediately north of this parcel where the Lowe's currently sits and the other development of that, all of that application and all of those approvals occurred prior to the UDC being approved. It's not relevant to this application. The other parcels the Council made a consideration at the time when the application was made and the information was brought forward that Council did consider that to be adequate for approval of those requests. Each of them are independent of one another. Granting an access to one parcel does not mean you are obligated to grant an access to another. The condition -- or the information that was brought by the applicant as to the highest and best use is not a legal standard in regards to granting a variance. That the applicant may have to down grade their site is not a legal standard that's required to be made and is not really a consideration for a variance. Looking at this drawing, it appears that where they believe the access site goes means that the same argument can be made for the property that's immediately to the west of this parcel, which the Council had previously considered as an access point to that parcel and denied it and that was not appealed. So, again, I don't -- I understand their arguments. I don't think they have legal merit in what this Council needs to consider as to the variance requirements. So, the short answer is -- De Weerd: I knew we would get to that. Nary: The short answer is there is no grandfather right. The variance is the appropriate standard that they need to meet today, because of what they are applying for today, is that's the current city code that they have to meet. The decision this Council has is ! Meridian City Council April 18, 2006 Page 81 of 99 does it meet the standards for a variance and the issues about economic viability and marketability and highest and best use are not the standard that is before you to make that decision. De Weerd: Thank you for the short answer. Nary: The long and the short of it. De Weerd: The long and short. Did that-- Borton: That answered it. De Weerd: Okay. Borton: Thank you. De Weerd: Okay. Anything else, Council? Okay. Bird: Council, anybody need anymore public input? Madam Mayor, with that I would move we close the Public Hearing on Item No. 19. Wardle: Second. De Weerd: Okay. I have a motion to close the Public Hearing on Item 19. All those in favor say aye. All ayes. Motion carries. MOTION CARRIED: THREE AYES. ONE ABSENT. De Weerd: Okay. Any discussion? If not, do I have a motion? And you all know I can't make one; right? Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: I will go forward with it. Whether it gets a second or not, we will find out. I move denial of V AR 06-002, request for a variance of two access points of -- on Eagle highway, on Eagle Road, State Highway 65, for Gateway Marketplace by Landmark Development and while making that motion I'd like to also say that when the motion was made in '03 by myself, there was no plan and it was stated that all we were doing was annexing and zoning. We weren't approving any accesses. That's the motion. Borton: Second. De Weerd: Okay. I have a motion and a second to deny the VAR 06-002 for Item 19. Is there any discussion? Okay. Mr. Berg. Meridian City Council April 18, 2006 Page 82 of 99 Roll-Call: Bird, yea; Rountree, absent; Wardle, yea; Borton, yea. MOTION CARRIED: THREE AYES. ONE ABSENT. Item 20: Public Hearing: VAR 05-027 Request for a Variance to UDC 11-3.H requirements for access to State Highway 69 for Meridian Gateway by White-Leasure Development Company - 1601 South Meridian Road: De Weerd: Thank you, Mr. Berg. Item 20 is a Public Hearing on VAR 05-027. I will open this Public Hearing with staff comments. Nary: Madam Mayor? De Weerd: Mr. Nary. Nary: I might make a note for the record, Councilmember Rountree had previously recused himself on this matter. I could get him to come back and say that on the record or we could make note of that. De Weerd: Council recognizes there is a conflict and so Mr. Rountree is absent for Item 20 as well. Canning: Madam Mayor, Members of the Council, this is the Meridian Gateway project. It's located at the southwest corner of Meridian and Overland. You did hear this application previously and make a decision. There was some confusion as to what the final motion for approval was. I have included the minutes from that in my short notes for you tonight and there were several clarifications to the modification -- or to the motion, as well as discussion about the signal in there. So, there is some question as to whether you approved one access point or two for this property. The two proposed access points right now -- I'm sorry, staff put in the wrong drawing. I know the applicant has an updated site plan. Sorry I didn't catch that before we brought this in. The applicant is currently proposing an access point to the southern portion of the property and, then, one in this general location here. I'll get that up for you soon. I have asked you to reconsider this item, one, to either clarify the motion or to reconsider the -- granting the request for the two access points on this piece of property. I'm not going to go into a lengthy discussion, but I do want to kind of hit some of the highlights why staff was proposing denial of the variance application. One, again, we have an ITD initial response that says that access points are only allowed at the half mile. Then, you have a separate staff report -- or staff response in request to specific access points, where they felt they have needed to grant approval of those access points if the Council grants the variance request. The development agreement for this property does note, similar to the last application, that -- that the access points to Eagle -- or to Meridian Road don't meet the ITD policy and in this case it specifically says in compliance with the Meridian Comprehensive Plan no curb cut shall be allowed in Kuna-Meridian Road, State Highway 69. There is also additional language about the type four access as approved