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Home My WebLink AboutLetter from Attorney Gary Tanner MARK 0, PERISOW WILLIAM R SNYDER GARY W TANNER + WILLIAM R. SNYDER &, ASSOCIATES, P.A. ATTORNEYS AND COUNSELORS 520 WEST FRANKLIN STREET, UPPER LEVEL BOISE, IDAHO 83702 MAILING ADDRESS POST OFFICE BOX 2338 BOISE, IDAHO 83701-2338 , Admitted in idaho and Caifornla (208) 336.9080 - TELIOPHONE (208) 343-4539 - FACSIMILE WWN.wrslegal,com + lL.M. in Real Estata law .". '''''(''' ~\>.-"~ . .J ' ." -" ,. ." -,~~ November 27,2006 . .;. \',1' .t,; ;:. '......... ~ '-' ,",,,, :._~ ,-" ,.......,~'- ---~ .,~, -~ ',_.' ...., -- Re: CUP 06-037, Pamela Minshew, Pammy Cakes Childcare VIA HAND DELIVERY Meridian Planning and Zoning Commission c/o City Clerk 33 E. Idaho Avenue Meridian,ID 83642 Phone: (208) 888-4433 Fax: (208) 888-4218 Dear Commissioners: This office has been retained by Bedford Place Owners Association, Inc., (hereinafter the "Association"), regarding the application CUP-06-037 of Pamela Minshew for a Conditional Use Permit for a group daycare for up to 12 children for Pammy Cakes Childcare located at 672 E. Baldwin Street, Meridian, Idaho. I write on their behalf to evidence the Association's opposition to Pamela Minshew's application. Under Idaho law, when the Minshews purchased the property within the Bedford Place Subdivision located at 672 E. Baldwin Street, Meridian, Idaho 83646 (hereinafter the "Property"), they purchased it subject to the terms, restrictions and conditions of the Master Declaration of Covenants, Conditions, Restrictions and Easements for Bedford Place Subdivision, recorded in the official records of Ada County Idaho as Instrument No. 95068758 (hereinafter the "CC&R's") and other governing docwnents, including without limitation, the Association Bylaws and rules and interpretations promulgated by the Association, and are therefore bound and obligated by their terms, conditions and restrictions. Meridian Planning and Zoning Commission November 27. 2006 Page 2 It is my understanding that the Minshews have recently submitted conditional use application CUP 06-037 (the "CUP") for a group daycare facility that they intend to operate on the Property, and that a public hearing is scheduled on December 7, 2006 to address the application. It is also my understanding that the Minshews intend to operate the daycare facility on the Property without residing thereon. It is also my understanding that the Minshews met with the Association board of directors prior to purchasing the Property and were instructed by the Association board of directors that such use was in direct conflict with the terms of the CC&R's and would not be approved by the Association. Notwithstanding the restrictions contained in the CC&R's and the position of the Association board of directors, the Minshews proceeded to purchase the Property. This Commission must deny the CUP because the use for which the Minshews intend to use the Property under the CUP is prohibited by the terms of the CC&R's, including without limitation, for the following reasons. First, the sole purpose for which the Minshews intend to use the Property is for commercial or business activity. Section 5.13 of the CC&R's specifically prohibits such use and activity. Section 5.13 reads in part, "No lot shall be used at any time for commercial or business activity." A group daycare facility is a business activity and because the Minshews do not intend to reside on the Property, their use can only be characterized as a commercial use. Second, the Minshews do not intend to use the Property for residential purposes, therefore the use for which they intend to use the Property is also prohibited under the CC&R's. Section 5.01 of the CC&R's limits the use of lots located within the subdivision to residential purposes. Section 5.01 reads in part, "Lots shall be used only for residential purposes and such uses as are customarily incidental thereto and Common Area. As used herein and elsewhere in this Master Declaration. "residential" shall mean the use of the improvements on a Lot for living accommodations by not more than two (2) unrelated persons, excluding guests of the principal occupant(s). which guests may reside therein on a temporary basis." Third, Section 5.04 of the CC&R's prohibits uses that may be or become an unreasonable annoyance or nuisance to the other owners within the subdivision. Section 5.04 reads in part, "nor shall anything be done thereon which may be or become an unreasonable annoyance or nuisance to the Occupant(s) of the other Lots within the Property by reason of . . .. r the 1 excessive emission of . . . . noise." The use for which they intend to use the Property will be or become an unreasonable annoyance or nuisance to the occupants of the other lots in the subdivision by reason of the excessive emission of commercial noise and traffic resulting from the proposed use. Such use and noise will create a nuisance to the other residents of the subdivision and will decrease property values resulting in harm to the other owners. Lastly, the Meridian Planning and Zoning Commission November 27, 2006 Page 3 Association has the authority and intends to strictly enforce the terms of the CC&R's. Therefore, approval of the CUP will result in time consuming and expensive litigation that will place a financial burden on the owners within the subdivision and will negatively impact their general welfare. This Commission must understand that the Association has a duty to enforce violations of the CC&R's, and that the Association has the same burden as the City of Meridian: It must follow the rule of law. The Association cannot permit Mrs. Minshew or any other owner in the Subdivision to use a property in a manner that violates the CC&R's. The City of Meridian requires written covenants regulating allowable uses of subdivision properties to be recorded as a part of the subdivision platting process so that all future owners will have advance notice of restrictions regarding property uses. This fact alone requires the Commission to take into consideration the restrictions set forth in the CC&R's when reviewing a conditional use application. Mrs. Minshew is simply not entitled to carry on her intended business activity on the Property under the CC&R's. The Association expects the City of Meridian to support the very process it set in motion. Aside from the clear CC&R violation that approval of the CUP would create, the Association is also concerned about the adverse effects of the proposed business activity on the Association. The Association's insurance will not cover claims resulting from commercial or business activities conducted on the Property or the Association Common Areas. Such use will most certainly involve the use of the Association Common Area (e.g. play equipment) and the Association will likely be required to purchase additional insurance coverage if this business activity is allow to operate as it presents a different insurable risk. The Association believes that it would be an unreasonable tax to impose on all owners for the benefit of Mrs. Minshew, even if the CC&R's allowed such business activity. In addition to the reasons set forth above, the Council must deny the CUP for the following reasons: (1) Pursuant to Section 11-5B~6(E)(3) of the Meridian City Code, the proposed commerdal use is not compatible with the other uses in the general neighborhood and with the existing or intended character of the general vicinity, and such use will adversely change the essential character of the same area; (2) pursuant to Section 11-5B-6(E)(4) of the Meridian City Code, the proposed commercial use will adversely affect the other property in the vicinity; and (3) pursuant to Section 11-SB-6(E)(7) of the Meridian City Code, the proposed commercial use will involve activities and conditions that will be detrimental to the other owners or their general welfare by reason of the excessive production of commercial traffic and noise. Meridian Planning and Zoning Commission November 27, 2006 Page 4 Thank you for your consideration and attention to this matter. Should you have any questions or comments please feel free to call me at your convenience. Otherwise I will be happy to answer any questions you may have and discuss the matter in more detail at the public hearing. Sincerely, ~---- Gary W. Tanner GWT/dd cc: David Crandall