HomeMy WebLinkAbout11-4-98 City Council Packet• •
MERIDIAN CITY COUNCIL MEETING: NOVEMBER 4 1998
APPLICANT: ROBERT L. PHILLIPS ITEM NUMBER: 5
REQUEST• APPEAL OF P 8 Z RECOMMENDATION OF CONDITIONAL USE PERMR FOR DAKOTA
COMPANY INC.
AGENCY COMMENTS
CITY CLERK: SEE ATTACHED APPEAL
CITY ENGINEER:
CITY PLANNING DIRECTOR:
CITY ATTORNEY:
CITY POLICE DEPT:
CITY FIRE DEPT:
CITY BUILDING DEPT:
CITY WATER DEPT:
MERIDIAN SCHOOL DISTRICT:
MERIDIAN POST OFFICE:
ADA COUNTY HIGHWAY DISTRICT:
ADA COUNTY STREET NAME COMMITTEE:
CENTRAL DISTRICT HEALTH:
NAMPA MERIDIAN IRRIGATION:
SETTLERS IRRIGATION:
IDAHO POWER:
US WEST:
INTERMOUNTAIN GAS:
BUREAU OF RECLAMATION:
OTHER:
Ali Materials presented at public meetings shall become property of the City of Meridian.
• •
Appeal of Decision of
Applicant:
Address:
Phone Number:
Nature of
REcErvED
OCT 28 1998
CITY OF MERIDIAN'
Fee: 100.00
APPEAL APPLICATION FORM
Zoning Administrator
City Engineer
Building Department staff
P&Z Commission
Other (Specify)
~~ ~'
r'
Signa e ~,
~'
~~--f ~,~
• • REcErvED
O C T 2 8 1998
Appeal of Meridian CITY OF MERIDIAN
Planning and Zoning Commission Recommendation
I. Basis for the Appeal
This is an appeal of the Findings of Fact and Conclusions of Law and
Recommendation to City Council in the Matter of the Application of Hermes Associates
and Dakota Company, Inc., the Application for Conditional Use Permit for a Regional
Shopping Center ("Application"), South East Corner of Eagle Road and Fairview
Avenue, 74.74 Acres, Pazcel One and Pazcel Two, Tax Pazcel Numbers 51109233945
and S 1109212467, Meridian, Idaho ("New Findings"). The New Findings aze dated
October 13, 1998.
This appeal is being made consistent with Sections 11-2-418 G and 11-2-416 G of
the Meridian Zoning and Development Ordinance. Consistent with those sections, this
appeal is being properly filed within fifteen (15) days after the Planning and Zoning
Recommendation.
I am awaze that the City Council does not grant a hearing associated with this
appeal, and no such hearing is being requested.
II. Aggrieved Party
My name is Robert Phillips and my address is 3437 Presidential Drive, Meridian,
Idaho. I live in the CrossRoads Subdivision and my property abuts the regional shopping
Appeal of P&Z Recommendation
•
center proposed in the Application. I attended and testified at several of the public
hearings held by the Planning and Zoning Commission.
III. Reason for the Appeal.
I want the Council to know that I thought about this matter at length before
making this appeal. I understand and appreciate the considerations given this matter by
our Planning and Zoning Commission. The Commission patiently listened to a
significant amount of testimony. Although I appreciate their efforts, the New Findings
approved deeply trouble me. The New Findings aze not consistent with the City of
Meridian's Zoning and Development Ordinances, Subdivision and Development
Ordinances, Comprehensive Plan, and the specific development plan approved by the
City Council for the property described in the Application.
IV. Background
The Crossroads Subdivision and the proposed regional shopping center aze in a
Light Industrial zone (I-L) at or neaz the comer of Eagle Road and Fairview. Neither
commercial nor residential uses aze allowed in this zoning. However, such uses may be
allowed in an I-L zone through a mixture of uses under a Planned General Development.
The Planned General Development is defined as:
Planned General Development (PD-G) - A development not otherwise
distinguished under Planned Commercial, Industrial, Residential Developments,
or in which the proposed use of interior and exterior spaces requires unusual
design flexibility to achieve a completely logical and complementary
conjunction of uses and functions. This PD classification applies to essential
public services, public or private recreation facilities, institutional uses,
community facilities or a PD which includes a mix of residential, commercial or
industrial uses.
Appeal of P&Z Recommendation 2
• •
Meridian Zoning and Development Ordinance, Section 11-2-403 B Planned Development
General D-G). (emphasis added).
A Planned General Development requires a conditional use permit, and such a
permit was granted in 1991 to GemTone, the owner of the property. See Findings of
Fact and Conclusions of Law, approved by Meridian City Counsel, March 19, 1991
("Original Findings"). The Original Findings discussed commercial and industrial uses
although residential uses could be allowed under a Planned General Development as
stated in the Original Findings. See Original Findings, paragraphs 2, 6.
In 1993, GemTone and a residential developer proposed a plat as part of the
development plan. This plat included residential and commercial uses as depicted in
Exhibit A. When asked by the Planning and Zoning Commission why the development
plan was now including residential, the following discussion took place:
Crookston: What's the reason for the change from the commercial industrial to
the residential?
Tom Wright, 1412 W. Idaho, Boise, was sworn by the attorney.
Wright: I'm part owner of GemTone, the owner of the property. The answer to
Mr. Crookston's question is I would say strictly mazket demand.
Crookston: What kind of commercial aze you going to endeavor that's not going
to interfere with residential living?
Wright: We're going to covenant as to color, height, types, landscaping, lighting,
hours of operations, etc., in order to protect and in essence enhance the residential.
We won't allow major heavy industrial use. I would call it light commercial and
office type uses.
Minutes, Meridian Planning and Zoning, May 11, 1993, page 23 (emphasis added).
Appeal of P&Z Recommendation
In front of the City Council, similar representations were made as to restrictions
on the commercial use. The residential developer confirmed his understanding of the
proposed commercial uses adjacent to the residential development as follows:
Yorgason: To address the question of screening between the residential and
commercial. Number one, by covenant we will have in the commercial area it
will be GgLt commercial and there will be screening on their side as well as a
we'll be putting a fence on our side. As the commercial goes in there will be
shrubbery that will go between that as well.
Minutes, Meridian City Council, June 15, 1993, page 7 (emphasis added).
Both the Planning and Zoning Commission and the City Council were told that
the types of commercial uses would be "light commercial" uses. In fact, the residential
developer told City Council that a significant part of the screening was the "light
commercial" use. This was his first response to screening before he mentioned other
buffers.
After the approval by both the Planning and Zoning Commission and City
Council, a single family residential subdivision was built with approximately two
hundred and fifty (250) homes. Such homes were built under a development plan stating
"light commercial" uses would be built adjacent to the subdivision. Realtors sold homes
and made representations to residents about the types of uses that would be next to the
subdivision. See e.g., various home owners testimony in the Minutes, Planning and
Zoning Commission, August 11, 1998, pages 61-64, 65-66. Given the public hearings in
1993, such representations appear consistent with the development plan and its
objectives. Hundreds of people including both homeowners and Realtors have based
their decisions on the development plan that emphasized light commercial uses.
Appeal of P&Z Recommendation 4
•
V. What is light commercial?
Commercial uses include a variety of things from professional offices to retail
uses. The Meridian ordinances contain several different types of commercial zoning
districts where various uses aze allowed at different levels of intensity. The five most
prevalent aze Limited Office District (L-O), Neighborhood Business District (C-N),
Community Business District (C-C), Regional Shopping Center Business District (RSC),
and General Retail and Service Commercial (C-G). See generally Meridian Zoning and
Development Ordinance, Section 11-2-408 B.
Although "light commercial" is not defined in the Meridian ordinances, commercial
uses. aze allowed in various districts depending on their use and intensity. The ordinances
sometimes indicate which uses aze more compatible with other uses. For example, the L-O
and C-N uses discuss such districts compatibility to residential uses. An L-O is specifically
"designed to act as a buffer between other more intense non-residential uses and high
density residential uses, and is thus a transitional use." Meridian Zoning and Development
Ordinance, Section 11-2-408 (7).
Additionally, certain uses aze less intrusive and allowed in a variety of districts.
For example, professional and sales offices aze allowed in all five commercial districts
and some high density residential districts. Meridian Zoning and Development
Ordinance, Section 11-2-409 B.
With regards to shopping centers, there aze three types: Neighborhood Convenience
Center (Commercial); Community Shopping Center (Commercial); and Regional Shopping
Appeal of P&Z Recommendation
i
Center (Commercial). The Neighborhood Convenience Center is approximately 30,000 to
200,000 square feet. Meridian Zoning and Development Ordinance, Section 11-2-403 B
Neighborhood Convenience Center (Commercial). The Community Shopping Center is
generally about 100,000 to 400,000 square feet. Meridian Zoning and Development
Ordinance, Section 11-2-403 B Community Shopping Center (Commercial). The
Regional Shopping Center is over 750,000 square feet. Meridian Zoning and Development
Ordinance, Section 11-2-403 B Regional Shopping Center (Commerciall.
In contrast to lighter commercial uses, a regional shopping center is one of the
most intense commercial uses and is the most intense shopping center use. Its location is
restricted to the Regional Shopping Center Business District. Meridian Zoning and
Development Ordinance, Section 11-2-409 B. Although there could be some debate, over
what "light commercial" might mean, there is no way a regional shopping center would
ever qualify under any reasonable defuution.
VI. Planned Developments require a Development Plan.
The Planned Development Section of the Meridian Planning and
Development Ordinance is a powerful tool. It provides great flexibility to achieve certain
objectives. Even modifications to Meridian ordinances are allowed so long as they meet
certain criteria of the Planned Development Section. See Meridian Planning and
Development Ordinance, Section 11-9-607 E.
The essential key to a planned development is a development plan. The developer
is required to provide City Council with a rendering of the completed development and
Appeal of P&Z Recommendation
J
go through the normal subdivision process. See Meridian Planning and Development
Ordinance, Section 11-9-607 D. A Development Plan is defined as:
Development Plan (Preliminary and Final Development Plans) -All plates, plans
and/or submissions by a subdivider or developer in whole or in part describing a
development and considered by the Commission and Council.
Meridian Zoning and Development Ordinance, Section 11-2-403 B Development Plan
(Preliminary and Final Development Plans).
The completed development plan allows the Planning and Zoning Commission
and the City Council to comment on the completed plan. Modifications to zoning
ordinances may be allow only if such modifications are part of the Final Development
Plan, meet the objectives of the planned development, and comply with other
requirements of the Planned Development Section.
VII. The Development Plan did not include a Regional Shopping Center.
The Original Findings did not describe what types of commercials uses would be
on the property. However, a plat for about one hundred and sixty (160) acres on the east
side of Eagle Road was submitted to City Council in 1993 as a part of the development
plan. See Exhibit A. The plat contained areas designated for commercial uses. These
designated areas were described as "light commercial and office type uses." See
Minutes, Meridian Planning and Zoning, May 11, 1993, page 23. The development plan
did not include a regional shopping center.
Appeal of P&Z Recommendation
The New Findings seem to imply that the residents had knowledge of and
accepted the risk of the commercial uses on the adjoining property. The New Findings
state in pazagraph 10 on page 4 that:
Several residents of the adjoining residential subdivision testified in opposition to
the project. Such residents did at all relevant times, however, have knowledge
either actual or constructive that the subdivision was developed as part of a
planned unit development within a Light Industrial Zone (I-L).
Please note that there is a significant difference between knowledge of a planned
unit development that allows for "light commercial and office type uses" as part of the
development plan and knowledge that a regional.. shopping center would be built on
adjacent property in a manner not consistent with the development plan.
Moreover, the development plan is part of a Planned General Development, which
is defined as:
Planned General Development (PD-G) - A development not otherwise
distinguished under Planned Commercial, Industrial, Residential Developments,
or in which the proposed use of interior and exterior spaces requires unusual
design flexibility to achieve a completely logical and complementary
conjunction of uses and functions. This PD classification applies to essential
public services, public or private recreation facilities, institutional uses,
community facilities or a PD which includes a mix of residential, commercial or
industrial uses.
Meridian Zoning and Development Ordinance, Section 11-2-403 B (emphasis added).
A Planned General Development is a mixture of logical and complementary uses.
The CrossRoads subdivision is a low density use. It was presented to City Counsel as
approximately two hundred and fifty-six (256) single family residential lots, with a net
density of about 3.3 lots per acre. Minutes, Meridian City Council, June 15, 1993, page 6.
Appeal of P&Z Recommendation
•
This low density residential use is similaz to the Low Density Residential District (R-4).
See generally Meridian Zoning and Development Ordinance, Section 11-2-408 B (3).
In contrast, the proposed regional shopping center is very dense. Regional
shopping centers have over seven hundred and fifty thousand square feet (750,000 s.f.)
and are located on a site greater than seventy-five (75) acres. Meridian Zoning and
Development Ordinance, Section 11-2-403 B Regional Shopping Center (Commercial).
The Application's site is slightly less than seventy-five acres, but requests an additional
ninety-eight thousand square feet (98,000 s.f.). This makes it thirteen percent (13%)
more dense than the normal regional shopping center.
Put simply, it is difficult to see how a low density residential subdivision twenty
(20) feet away from a regional shopping with greater density than normal can be either
logical or complementary.
In summary, a regional shopping center was not a part of the development plan.
In fact, the development plan was to have light commercial uses. The residents did not
have constructive notice that the owner could build a regional shopping center on the
adjacent property. Moreover, it is neither logical. nor complementary to build two such
extreme uses on adjacent ground.
VIII. The Application is not allowed under the Meridian Zoning Ordinances
The Meridian Zoning and Development Ordinances do not allow a regional
shopping center if it is not a part of a planned development. The Application requests a
conditional use permit fora "Multi-tenant Regional Shopping Center." See Application.
Under the Meridian Ordinances, a regional shopping center can only be built in a
Appeal of P&Z Recommendation 9
Regional Shopping Center Business District. See the Schedules in Section 11-2-409 B,
City of Meridian Zoning and Development Ordinances attached hereto as Exhibit B
(underlining added). The property in the Application is an I-L zone, not a Regional
Shopping Center Business District. Without a planned development, a regional shopping
center is not allowed by conditional use permit.
IX. The Applicant's request is not consistent with City Policy.
The Applicant's request is not consistent with the City Policy. The New Findings
state in Paragraphs 16-17 on page 5 that:
16. The uses proposed within the subject application will in fact, constitute a
conditional use as determined by City Policy.
17. The proposed uses within the subject application will be harmonious with and
in accordance with the Meridian Comprehensive Plan and the City of
Meridian Zoning and Development Ordinance.
Section VII of this appeal shows how the Application was not a part of the
development plan and is not consistent with a Planned Development General. Section
VIII of this appeal shows how the Application is not allowed under Meridian Ordinances
if it is not a part of the Development Plan.
In addition, the Application is not consistent with the Meridian Comprehensive
Plan. The Meridian Comprehensive Plan states the following regarding commercial
development objectives:
Encourage new development which reinforces the City's present development
pattern ofhigher-density development within the Old Town area and lower-
density development in outlying azeas.
Appeal of P&Z Recommendation 10
•
Meridian Comprehensive Plan, Section 1.4U. This is the biggest shopping center in
Meridian and one of the biggest in the state. It is thirteen percent (13%) more dense than
a normal regional shopping center, and the location is not old town but in an outlying area
where lower-density development is to be encouraged under the Meridian Comprehensive
Plan.
Moreover, with regards to residential uses, the Meridian Comprehensive Plan
states the following objectives:
Protect and maintain residential property values, improve each neighborhood's
physical condition and enhance its quality of life for residents.
Meridian Comprehensive Plan, Section 2.3U. The Planning and Zoning hearings during
July, August, and September of 1998 provided amply testimony about the adverse impact
on property values and quality of life issues posed by a regional shopping center of this
intensity. The Applicant has even stated on more than one occasion that this regional
shopping center will have an impact on the residents. Minutes, Meridian Planning and
Zoning Commission Meeting, September 8, 1998, page 43.
All of this shows that the New Findings are not consistent with the Meridian
Comprehensive Plan or the City policy.
X. Regional Shopping Center is not permitted even under the flexibility of Section
9-607-E.
The New Findings state that:
The Planned Unit Development provisions contained within the City of Meridian
Subdivision and Development Ordinance, Section 11-9-607 (E) provide flexibility
to the Meridian City Council and the Planning and Zoning in approving a
conditional use permit within a Planned Unit Development, and more specifically
states as follows:
Appeal of P&Z Recommendation 11
11-9-607 (E): "A PD shall be allowed only as a conditional use in each
district subject to the standazds and procedures set forth in this Section. A
PD shall be governed by the regulations of the district or districts in which
said PD is located. The approval of the Final Development Plan for a PD
may provide for such exceptions from the district regulations governing
use, density, azea, bulk, pazking, signs, and other regulations as may be
desirable to achieve the objectives of the proposed PD, provided such
exceptions aze consistent with the standazds and criteria contained in this
Section.
New Findings, pazagraph 7, pages 8-9.
Although this is a very powerful section, it is important to understand the general
rule that guides the Section and the limitations on any exceptions to that rule. The
general rule is to follow the standards of the districts. A regional shopping center is only
allowed in a Regional Shopping Center District. See Meridian Zoning and Development
Ordinance, Section 11-2-409 B. A Regional Shopping Center Business District is not
allowed in a Planned General Development (PD-G). See Meridian Zoning and
Development Ordinance, Section 11-2-409 C attached hereto as Exhibit C (please note
the mazking is my notation). One even questions if a regional shopping center is ever
allowed in a Planned Development General.
An exception to the general rule may be granted only if it passes all three of the
following tests: (1) the exception is part of the Final Development Plan; (2) the
exceptions are desirable to achieve the objectives of the Planned Development; (3) the
exceptions aze consistent with the standazds and criteria of the Planned Development
Section. If one of these test fails, the exception cannot be granted.
A regional shopping center violates all three tests and should not be granted,
First, a regional shopping center was not part of the development plan. See Section VII
Appeal of P&Z Recommendation 12
•
above. Second, the regional shopping center is not consistent with the development
plan's objectives of having "light commercial and office type uses." See Section VII
above.
Finally, placing a regional shopping center next to aloes-density residential area
fails the purposes of a Planned Development as contained in Section 9-607 A.
Specifically, it is not consistent with the Comprehensive Plan and does not provide a
development pattern which preserves neighborhood development and stability.
Moreover, the extreme mix of low density residential directly adjacent to high density
commercial does not provide a more convenient pattern of commercial and residential
uses. A Neighborhood Convenience Center or perhaps the right kind of Community
Shopping Center may be convenient, but not a regional shopping center of this intensity.
XI. Other Issues.
The Sections above provide sufficient reasons to deny this particular conditional
use permit. However, there are several other issues that you should consider.
A. Transfers of conditional use permits require a hearing before City
Council.
Conditional use permits outside of Old Town require notice and a hearing before
City Council. The ordinances state:
Non-Old Town -Conditional Use Permits for Land in any other district other than
Old Town may be transferred from old owners to new owners or old occupants to
new occupants for the same use for which the original conditional use was granted
by petitioning the City Council. The City Council shall hold a public hearing on
the petition after notice of said hearing having been mailed by certified mail to all
property owners within three hundred feet (300') of the external boundaries of the
subject land.
Appeal of P&Z Recommendation 13
•
Meridian Zoning and Development Ordinance, Section 11-2-418 J (2).
From the Applicant's statements before Planning and Zoning Commission, it
appears that the intent of the Application was to transfer the original conditional use
permit granted in 1991. See Minutes, Planning and Zoning Commission, July 14, 1998,
pages 25-26. However, a hearing before city council was never held on this matter.
Moreover, the New Findings do not address the transferability of the conditional use
permit.
B. Anew conditional use permit for a regional shopping center would not be
allowed under the Meridian ordinances.
There was some discussion before planning and zoning that this was an
application for a new conditional use permit or at least partially new permit. See e.g.,
Minutes, Planning and Zoning Commission Special Meeting, September 24, 1998, pages
43, 48. Anew conditional use permit raises a lot of new concerns and issues. A Planned
Development currently exists on the property, and changes to that plan would have a
detrimental effect on the adjacent owners who relied on the original plan.
Additionally, a new conditional use permit would not be consistent with the
Meridian ordinances. If a new conditional permit is being applied for without being part
of a planned unit development, such a use would not be allowed in an I-L zone. See
Section VIII above.
If a new conditional use permit is being applied for as a new Planned General
Development, it is not allowed because there is no mixture of uses. See Meridian Zoning
and Development Ordinance, Section 11-2-403 B Planned Devel~ment General (PD-G).
Appeal of P&Z Recommendation 14
•
The reason there is no mixture of uses is because the Application only applies to the
property identified in the Application. The property identified in the Application is
approximately 74.74 acres and is intended only for commercial uses. The adjacent
residential property was not included in the Application, nor did they consent to it. The
Application cannot piggyback the nonconsenting, adjacent residential owners to qualify
as a mixed use in a new Planned Development General.
Moreover, a new Planned General Development was not requested in the
Application rather a regional shopping center was requested. The approval of a new
Planned General Development would bring into question the validity of the notices
provided to residents.
C. A regional shopping center will change the character of the area and
disturb existing uses.
Several of the New Findings do not accurately reflect the impact of the regional
shopping center. The residents provided amply testimony during the Planning and
Zoning public hearings as to concerns about the impact of the proposed center. The
Applicant stated on more than one occasion that this shopping center would have an
impact on the adjacent property owners. Minutes, Meridian Planning and Zoning
Commission Meeting, September 8, 1998, page 43.
In contrast, the New Findings state that the proposed uses will not change the
intended essential chazacter of the same azea, and will not be hazardous or disturbing to
existing or future neighboring uses. See New Findings, Pazagraphs 19, 20, page 6,
Paragraph 8, pages 9-10. Such findings are not supported by the record. Although efforts
Appeal of P&Z Recommendation 15
i
to mitigate the impact aze appreciated, they do not change the fact that a regional
shopping center will change the chazacter of the azea, be inconsistent with the
development plan, and disturb the existing neighbors.
XII. Conclusion
The bottom line is the Application is not consistent with Meridian ordinances or
the planned development approved by Meridian. The New Findings supporting the
Application aze not consistent with the Meridian ordinances, the Meridian
Comprehensive Plan, and do not accurately reflect the impact of the regional shopping
center on adjacent residents. Moreover, it is not good policy to put two such extreme
uses so close to each other. Ask yourself, would you have allowed a regional shopping
center to be approved adjacent to the residential subdivision in 1993 as part of the
development plan? If your answer is no, why would you allow it to be approved
now? The residential subdivision was approved as part of the development plan in 1993
by the Planning and Zoning Commission and City Council. The regional shopping center
was not.
My intent in drafting this appeal is not to create conflict, though I realize it may.
It is not to criticize the Planning Zoning and Commission, because I truly appreciate their
time and efforts. This appeal is intended to achieve a better decision and minimize the
adverse impacts on hundreds of residents such as myself. By denying the Application we
encourage a better land use policy consistent with the Meridian Comprehensive Plan.
The Applicant should be encouraged to present a new proposal that is less intense
and more consistent with the city ordinances and the development. Such a proposal, if
Appeal of P&Z Recommendation 16
planned correctly, may be able to comply with Meridian ordinances, be consistent with the
development plan, and be complementary to the adjacent residents. As I have said before, I
would be willing to work with the Applicant in the future to see if we can find common
ground and fmd a better solution.
Appeal of P&Z Recommendation 17