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HomeMy WebLinkAboutDecember 4, 2007 C/C MinutesMeridian City Council December 4, 2007 Page 59 of 77 Bird: Keep going, David. Zaremba: I move we approve CPA 07-010. Period. I'm sorry. To include all staff comments. Rountree: Second. De Weerd: I have a motion and a second on Item 20 to approve. Any discussion? Hearing none, Mr. Berg, will you, please, call roll. Roll-Call: Bird, yea; Rountree, yea; Zaremba, yea; Borton, yea MOTION CARRIED: ALL AYES. Berg: And, Madam Mayor, just to clear my thought, by approving the staff comments on that motion, more or less accepted the withdrawal in a text change amendment; correct? The applicant wanted that, but now we have got to do that motion. Zaremba: I still would make a separate motion. I move that we accept the applicant's withdrawal of CPA 07-015. Rountree: Second. De Weerd: I have a motion and a second approving the withdrawal of Item 21. Can I do that by voice? Mr. -Berg, just call roll. Roll-Call: Bird, yea; Rountree, yea; Zaremba, yea; Borton, yea. MOTION CARRIED: ALL AYES. Item 22: Public Hearing: PP 07-014 Request for Preliminary Plat approval for 34 commercial /retail building lots and 1 common lot on 17.84 acres within the C-G zone for Emerson Park Commercial by Kuna Victory, LLC - 2910 & 3030 South Meridian Road and 110 East Victory Road: De. Weerd: Item 22 is a Public Hearing on PP 07-014. I will open this Public Hearing with staff comments. Canning: Madam Mayor, Members of the Council, this is the Emerson Park commercial project. It's located 2910 and 3030 South Meridian Road and 110 East Victory Road on the northeast corner of Meridian Road and Victory Road. The application before you tonight is a preliminary plat. The development includes 34 commercial retail building lots Meridian City Council December 4, 2007 Page 60 of 77 and one common lot on 17.84 acres in an existing C-G zone. We do have some elevations before you tonight. No, we don't. We did the last time you had this hearing. I'm sorry, I thought they were on here. You did approve elevations along with a development agreement modification last year and those are still tied to the site. Commission recommended to approve this plat at their September 6, 2007, Public Hearing. Chris Tverdy and Oaas Laney spoke in favor of the application. No one spoke in opposition or commented or provided written testimony. Key issues of discussion by the Commission were the existence of the buffer along Victory Road within the right of way, rather than on the property, as required by the UDC. The existence of a previously approved parking lot for the 2-M building -- and that's down on the southeast corner of the property, within the required buffer area along Victory Road. The widening of the existing five foot sidewalk along Meridian Road to a ten foot wide sidewalk, as required by the UDC along state highways. The key Commission changes to staff recommendation were to strike the requirement for the ten foot wide pathway along Meridian Road. To modify condition 1.1.66 requiring a 25 foot wide buffer along Victory Road and, instead, require alternative compliance. To provide a 15 foot wide buffer where there is adequate room available on the site and also alternative compliance application to be submitted prior to or concurrently with the final plat application. To strike the condition requiring a ten foot wide pathway be depicted on the landscape plan. To modify condition 1.17 to require a minimum 15 foot wide buffer again, instead of the 25 foot wide required. And the reason for that -- those modifications to the required buffer is that Victory Road used to be classified as a -- not as an arterial. It is now an arterial and, therefore, we had a -- with reclassification came the requirement for a larger landscape buffer. The fifth issue of discussion was to allow for the relocation of the existing access from Meridian Road to the north, if agreeable with the owners of Double D, ITD, and City Council. A variance is required be approved by City Council for the relocation of the existing access point. Modify condition 1.2.2 allow the pond to remain, but required to have recirculating water be maintained, so that it does not create a mosquito breeding ground. Modify condition 2.1 to read staff will work with the applicant to draft a reimbursement agreement that will go before City Council for approval and that was with regard to the sewer extension, I believe. And to modify condition 3.7 to allow for the option of incorporating the required emergency access into the requested stub street along the northern boundary of the property and to modify condition 1.1.1 to require that applicant to apply for a miscellaneous application to amend the DA to reflect the conditions of approval for the preliminary plat. So, the Meridian City Council heard these items on -- heard this item on October 2nd and 23rd of 2007 and at the Public Hearing on the 23rd of October you approved the subject preliminary plat request. It is at that hearing, your first hearing on this -- this is a reconsideration hearing. At your hearing -- again Chris Tverdy spoke in favor of it, as did Oaas Laney and Tim Mussell. No one spoke in opposition, commented, or provided written testimony. Key issues of discussion by the Commission were the removal of the requirement for a ten foot wide pathway along State Highway 69 or Meridian Road. Removal of the temporary access road to State Highway 69 for Victory Greens at the Meridian City Council December 4, 2007 Page 61 of 77 northern end of the site and the requirement for a variance application for the continued use of the access road. And relocation of the existing access point to Highway 69 for Double D further north through a variance application process. The key Council changes to staffs recommendation were to modify condition number 1.1.12 to specify that the existing driveway needed to be removed prior to the first final plat for the application. Since that staff report was written and since your hearing we have received written testimony dated October 31st 2007, from Richard Andrus on behalf of the applicant. Staff responded to that letter in a memo from Sonya Watters dated November 19th, 2007. So, the outstanding issue before Council tonight is condition 1.1.12 to allow the northern driveway to continue use until the third phase of development is complete, whereas it currently reads the first phase. This issue was, again, the focus of the discussion at the original hearing, but I will go through Mrs. Watters response to the attorney's testimony -- that was Richard Andrus, the attorney for the applicant. So, with regard to that, we submit the following: During the annexation hearing the applicant's representative Dave McKinnon stated that they would like to keep the access point to State Highway 69, Meridian Road, open at the northern boundary of the site temporarily until such time as this area redevelops and access can be provided internally. At that time they would close down the access point. The development agreement for the site approved in 2004 with the annexation of Mussell Corners states that the applicant shall be allowed to use as a temporary access onto State Highway 69, which is located at the far northern portion of the proposed project, until such area redevelops. Per the UDC, connections to a state highway are only allowed at section line roads and half mile mark between section line roads. Although temporary access to State Highway 69 was allowed until such time as the site redevelops, approval of a permanent access point to the highway was never granted and would require approval of a variance. Because the driveway access is not allowed by UDC, it is deemed nonconforming. As a nonconforming use, the use may continue as long as the use remains lawful and is not expanded or extended. With development of the first phase of Emerson Park, the use will. be expanded, thus, the use shall not be allowed to continue without specific approval of a variance. We have consistently applied the nonconforming use code in this manner. So, basically, the use on five acres wants to annex to the city and divide the property such that that nonconforming use is now on two acres. We insist that the nonconforming use come into compliance with our code. This interpretation of the code is fundamental to achieving compliance, particularly with older businesses and homes that annex into the city. The preliminary plat condition of approval for Emerson Park states the access driveway at the north end of the site to Meridian Road that is currently being used for the loading for Victory Greens shall be removed and the use discontinued prior to signature and as amended by you at your first hearing on the first final plat. Finally, per the letter submitted to the city by Richard Andrus of Spink Butler, dated October 31st, the applicant believed that this access would be allowed to remain open until the portion of the property including the access develops. With each application in regard to this corner staff has vigorously advocated that the access be discontinued and that the site be brought up to the standards of the code. We maintain Meridian City Council December 4, 2007 Page 62 of 77 that the condition to allow the temporary access was intended to terminate upon first subsequent development application on this site. The applicant's own testimony states that until such time as the area redevelops and access can be provided internally. The first phase of Emerson Park will provide public street access to the landscaping business. There is no need to continue the direction access to State Highway 69. Our concern is that each temporary approval of the access point is a lost opportunity to have that access closed. If Emerson Park only develops one phase, we will have missed our opportunity to improve the safety of the traveling public on Meridian Road and to close down this access point. Therefore, because of the statement made by the applicant at the original hearing, the existing DA, and the fact that this is a nonconforming use, staff recommends that condition approval 1.1.12 be upheld as originally approved by City Council. I'd like to also point out that the landscaping business has now been annexed to the city for over three years. The original application was over four years ago and it's still not in compliance with our development standards. Typically you do require compliance concurrent with the initial development of the property. With that I'll answer any questions. De Weerd: Council, any questions? Would the applicant like to come forward. Good evening. If you will, please, state your name and address for the record. Andrus: Madam Mayor, Members of the Council, I'm Richard Andrus, associated with Spink Butler at 251 East Front Street in Boise. And I actually have a depiction that I'd like to pass out to you. I'm sorry I didn't get it to staff sooner. Just to clarify, I don't think there is any disagreement that the applicant in this case doesn't mind giving up a valuable deeded existing access in order to develop, they'd just like to have the consideration of the timing of when that access is given up. Because we are talking about the access, I'd like to give you a little bit of history as to how it came about and how it's been used. As you can see on the -- the depiction that I handed you, that temporary access is on the far north end of the property and access is State Highway 69, Meridian Road. The -- what would be phase three would include that access. You can see here on the plat that's up there I have highlighted phase one to demonstrate, really, the difference and the distance between these two areas. This access, as I said, is a deeded access. There were three access points that ITD originally deeded to Tim Mussell, the owner of Victory Greens, back in the '80s. This was done in exchange for right of way. He gave up property in exchange for these access points. Just to clarify the use in the past and the use moving forward, Victory Greens is the only business that's located within this area that has used this access point. Moving forward, Victory Greens will be the only business using this access point. There will not be a change in use. There will not be an increase in intensity. I believe the section of the Meridian ordinance that staff has discussed, 11-3H-4-B2, defines a nonconforming use as one that increases the intensity and changes the use. As I said before, the applicant is willing to give up this existing deeded access, but they just request that it's done at a different time frame than staff has requested. To give a little more background on the Meridian City Council December 4, 2007 Page 63 of 77 2003 application, this is a -- the Emerson Park plat is a replat of the Mussell Corner application from 2003. At that time ITD, who has jurisdiction over State Highway 69, submitted their feedback on new construction for new access points, but as I said before, this is an existing access point. Staff, then, I think rightfully concerned that they needed to have a mechanism to close down the access point and the question is, then, what is that mechanism. At that time Council adopted the following language included in the development agreement. The applicant shall be allowed to use as a temporary access onto State Highway 69, which is located in the far northern portion of the proposed project, until such area redevelops. I believe if you had a chance to look through the letter, we discuss in there that at the prior approval of this application, staff had indicated that a variance would be a good alternative and a good compromise to allow this -- this access to remain temporarily in place. We are concerned with that requirement, because under Idaho law a variance is improper for this type of request and it would essentially be setting the applicant up for a request that the City Council can't grant and the access would be lost and make the project not viable. I think there is also some practical implications to this. We are here in a situation where the Council can craft the condition of approval so there is a mechanism to close down the access point. We request that it be the phase that actually encompasses that access. I don't have anything further at this point, but I'll -- if there is any questions -- I know there were some representations in the memo, maybe, that need some clarification, maybe perhaps we have a different perspective than staff on a few of the underlying facts and interpretation of the ordinance, but, as I said, if you have any questions I'd be happy to answer them. De Weerd: Council, any questions? Borton: Madam Mayor? De Weerd: Yes, Mr. Borton. Borton: Richard is there a disagreement over whether or not there is access provided to the property with phase one? Internal access? Regardless of the consequence of that, but is that -- Andrus: I think there is two ways to view this, just being completely honest. It's -- there is no more additional access in phase one -- and correct me if I'm wrong, we also have Chris Tverdy here that could -- could provide some clarity on this, but there is no more additional access when phase one is built out than existed when the application was made in 2003. The north access is an integral part of Victory Greens as it exists today. It's what allows it to -- to stay on site and, to be quite honest with you, makes this project long term viability a possibility. Meridian City Council December 4, 2007 Page 64 of 77 Borton: Madam Mayor. So, if I said the first phase of Emerson Park will provide public street access to the landscaping business, is that -- is that true or false? I'm just trying to get myself clear on -- Andrus: Again. I'm sorry. Borton: The first phase of Emerson Park will provide public street access to the landscaping business. Andrus: There is already public access off of both Victory and Meridian Road. So, yes, it's -- it's accurate. Our position is that northern access is necessary, though, to continue. Borton: Okay. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Richard, is that northern access right-in, right-out or is it full access? There is cross -- but it is -- so it is a full access? Andrus: As a side note to that, there is also a condition in the approvals that this access will actually be made into a fire access with a knocks box and a locked gate. One of the concerns in -- and I'm sorry I didn't hit on this earlier, but right here is where the road into phase one will end -- or the phase one road will end and I think the copies of the depiction you have show this a little better. There will be a locked gate there and so to say that this property will have access off this road is a stretch at best. Victory Greens is located over here, as I recall. Chris could probably do a better of describing it. He's the guy that's been on site. Tverdy: Chris Tverdy. 519 West Front Street. I work with Oaas Laney as a project manager on this project, here representing Eric Oaas, who is traveling today and also Tim Mussell, who is traveling, but they are not together. They probably wanted me to expressly make that point. The access point to the property that is -- is correct today, the traffic for Tim Mussell's Victory Green business enters in through here, into their property -- they actually enter through this driveway right here to the store front and they exit primarily -- there might be some entrance, because it's not marked as a right-in, right-out today, but there could be some entrance coming in here, but the primary access point coming into the property is right here. There is a -- Tim's business is set up such that there is a booth down here where as customers come in and load their material and purchase stuff, that they check out through this box as they leave the property. So, it's a critical entry point for Tim and his business there. And, in fact, you Meridian City Council December 4, 2007 Page 65 of 77 made a very key point that when they put that kiosk in down here and made it more convenient for the traffic to come through the property and exit onto the highway, it made a substantial positive impact in his business. So, he is quite adamant that removing this access point hear is going to have a substantially negative impact on his business. The point that we want to make loud and clear that we do not agree with staffs position on is that there will be an expanded use of that access point. There will not be, as a result of this business here -- or as a result of this development here. This is -- will be maintained and improved -- be a nice driveway onto the property. Tim Mussell will put in a gate entering his property there. It will be gravel. It will be just like the property that you may have visited today is. It is not an access point for clients of these buildings and such to travel through the property. In the evenings at business hours that gate will be locked -- that gate will be locked to protect the inventory that Victory Greens has out there, just like they do today. To the point that Richard made about emergency access point, this is the same point that we are going to maintain for emergency access to the site, as emergency services folks requested. So, I guess I would just close by saying that-- that we feel strongly that -- we agree that the long term use of this action will be closed down and be emergency use only. We agree -- you know, we -- I guess I should say we don't agree that this is an expanded use. It is not. When the use expands because of the development of phase two and in phase three, we agree that the access point will be vacated, except for emergency use, and we just would request that the Council honor the agreement that is put in place -- development agreement has put in place that is the purpose of -- or I mean the business activities around there are there because of those business agreements that were done past and until those uses change, the uses expand, we should leave those access points the same. So, with that I can stand for questions. Zaremba: Madam Mayor? De Weerd: Council: Yes, Mr. Zaremba. Zaremba: A comment and, then, some questions. The reason the intensity increases is that the same use, even if the use doesn't change on less property, just makes it more intense. If you have 20 acres conducting a business and you cut ten of those acres off and conduct the same business, it is more intense. You -- you're not spreading the same amount of work over the same space. It is more intense. The other question I guess I have is when this was annexed there were a number of things that were not in compliance, even with the county ordinances and on the promise of the applicants, the city went ahead with annexation and some of the things the applicant promised was to fix faulty wiring into an auxiliary shack. I'm not sure whether that ever happened. The shack is no longer there, because new buildings have been built. The other promise was to shield the view from State Highway 69 of the rock piles and the bark -- landscape rock and landscape bark and stuff for sale. That's still visible from the road and the discussion was whether a fence would be put there or whether there could be Meridian City Council December 4, 2007 Page 66 of 77 enough trees put there to shield it, neither of which have happened. Do you have any idea when that's going to be complied with? Tverdy: Oh, it's difficult for me -- I'd like to respond to a couple of points, kind of in order. The first item is the vacation of the property, as we say, that we are consolidating as the existing business to fewer acres, increase or expands the use, I'm not sure agree with that point -- Zaremba: Intensifies the use. Tverdy: Because what he's doing is storing inventory there and that inventory will just go away. So, the clientele, the number of car trips -- I don't think you can characterize those as expanding the use and, in particular, we are talking about exit points onto a highway and I don't think that you could make that same point, if I understand your point right. But, anyway, to go onto the development agreement, in preparing for these hearings that we have had, I went back and read through the -- all the text and I do understand the points and I read through the testimony from those meetings back four years ago before I was around and -- and I believe that those were all addressed during that time frame or specific items that the county -- because it was a county property at that point -- required them to meet, enabling them to be annexed into the city. And so I'm not sure what the -- from reading through that, the discussion back then, I'm not sure what was concluded as to what screening was going to be required there and so I don't know if you can clarify that. I can certainly take those back to our tenant and work for a resolution on that. I don't know what was decided, though. I kind of thought that they put tree inventory there to screen it. Zaremba: As I recall, the end suggestion was that there be enough trees to screen that area. There are not enough trees to screen the area. Tverdy: And the area that you're concerned with is the -- I would say the northern portion of the property where they have the bins set up with the bulk gravel and bark and that type of stuff. Zaremba: What sparked my memory of it was -- was stafFs comment that it still is not in compliance with our development standards and perhaps Iwill -- I see Director Canning is quickly looking some things up. And those were the ones that I remembered off the top of my head, but I -- since the comment was made -- Tverdy: I find it difficult to -- to -- you know, we are the property owners there and Mr. Mussell is a tenant on the property, so it is our responsibility to get it in in compliance. have -- I find it a hard time to commit on his behalf on what we will do, but -- but we certainly will take the appropriate steps to make sure the property's in compliance and that's -- you know, we -- and if Eric Oaas were standing here, he would be doing a lot to Meridian City Council December 4, 2007 Page 67 of 77 make sure that there is a clear delineation between Oaas Laney and development and the projects we have done, versus the history associated with the property. So, we will take the appropriate steps to make sure that those items are cleaned up appropriately. Zaremba: Thank you for your promise. De Weerd: Any further questions from Council while Anna continues to search? Bird: I don't, but, Anna, do you have a -- a site -- an overall area site deal that would show the west side of 69? Yeah. That's what I thought. I believe the church exit -- or enters and exits right across from that and it's a full blown deal. So, we have granted one on the west side, but we want to grant one on these, uh? ITD I should say. Tverdy: If I may add, if I'm allowed to, I think it is -- it is germane to the discussion that when this development agreement and when these letters with ITD and such were in place, that stop light was not in place and we have since installed the stop light there at the corner of Victory Road and Meridian. And so I mean -- you know, the traffic is much much slowed down from where it was when this project was originally in front of -- in front of your consideration. Canning: Madam Mayor -- De Weerd: Yes. Canning: -- Members of the Council, just to remind the Council that the applicants do have an access from State Highway 69 where there wasn't one on the other side. Both applications came in prior to the code amendment for the -- prior to the UDC adoption, but it was an ongoing concern for both sides of the highway. I did find the applicable provisions. The applicant was tied to meeting the landscape requirements at the time of certificate of zoning compliance approval, but it does note a 20 foot wide landscape buffer on Victory and a 35 foot wide landscape buffer on State Highway 69. I do remember that discussion, Commissioner Zaremba, and I think we did put it to the certificate of zoning compliance, because there was no preliminary application at the time. Zaremba: Okay. Thank you. Canning: Madam Mayor, Members of the Council, sorry, I misspoke. There was a preliminary plat application. This is the final plat. I was confused for a moment. I'm sorry. Zaremba: I'm sorry, I didn't understand that. What we are doing tonight is a preliminary plat; right? Meridian Ciry Council December 4, 2007 Page 68 of 77 Canning: It's a -- it's a re-subdivision of the first preliminary plat. The first one was Mussell Corner Subdivision, so that did come in with an annexation. De Weerd: Council, any other questions? Mr. Zaremba, did you have that question answered? Did you feel there was an answer in there, because maybe -- Canning: Madam Mayor, probably not. I think this is the way it goes. Zaremba: I guess the remaining -- De Weerd: I have been thinking, well, maybe I just didn't get it. Canning: Typically what -- Zaremba: I had it -- I had it addressed and discussed and what still remains is staff comment that it's still not in compliance. I don't remember all the things it was supposed to be in compliance with, but -- Canning: Right. Typically what happens is you come in with a preliminary plat. When they come in with the final plats for an area, we require the landscape buffer at that time. It was put as a conditional -- on the conditional use application, it was required with the CZC. On the preliminary plat we just get it as the final plats come through, but this area is being re-preliminary platted, but has not yet gone through a final plat. Does that make sense? I don't believe it has. Perhaps I'm wrong. Zaremba: So, what you're saying is it does not yet need to comply with the things that are out of compliance. Canning: I'm not sure at this point. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Anna, it isn't being replatted, is it? It's being resubmitted because of the conditions on the north entry, exit, whatever you want to call it. Canning: No. They have proposed a detailed preliminary to you, but it's a -- it's a new preliminary plat on an area that I don't believe is final platted yet. It's not a lot in a subdivision. Bird: Isn't this the same plat that we seen before? I thought it did, but I'm not -- Meridian City Council December 4, 2007 Page 69 of 77 Canning: It's the same one you saw on October 23rd. Bird: Okay. Canning: But in 2004 you approve Mussell Corner Subdivision. Bird: Oh. No. No. No. I realize that. It wasn't one from 2004. No. Andrus: Madam Mayor? De Weerd: Yes. Andrus: Commissioners. Councilman Zaremba. I wanted to just clarify a point. We have put in the 35 foot wide buffer the entire length of the property down Meridian Road and the area that -- you know, I think that you can see in I think is -- the highway is elevated. The property is a good element below the -- below grade of the highway. So, I think that's probably why you could see in there, but the improvements that were required when we did the Mussell Corner Subdivision a couple years ago, required that all be put in. So, it is put in per the requirements there. So, now I still think that you have a concern that we need to go and take a look at, which we will do. But I believe we have met those requirements and I'd love Anna to comment, if she disagrees. Canning: I'm slowly -- Zaremba: Well, I know there has been some landscaping done and it looks nice, I'm not being unappreciative. Canning: Madam Mayor, Members of the Council, I'm slowly getting up to speed on this one. Sorry. The legal description for this preliminary plat does list it as Lots 1, 2 and 4 of Block 1 of Mussell Corner Subdivision. So, the project has gone through final plat approval. We typically require the -- look for the landscape buffer at that final approval time. I can only anticipate that we checked it and it met our minimums. I'm not sure without doing a lot of research on it. I'd have to go back to the final plat applications and see what was exactly approved, so I apologize. De Weerd: Council, do you have the information that you need, in addition to what we have already discussed or heard? Is there any further testimony? Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Anna, what was -- what was the final plat on? What -- Meridian City Council December 4, 2007 Page. 70 of 77 Canning: I believe the went through the prelin three of those lots, one, Bird: Thank you. entire property that was part of the Mussell Corner annexation Binary plat and the final plat process. This is a resubdivision of two and four. De Weerd: Council, do you want to have discussion? We still have an open Public Hearing. Or I'll just be quiet and wait until you talk. Bird: Well, Madam Mayor, Ineed -- I need -- I want to make sure I'm clear on my pea brain. What we are actually ruling on tonight is the preliminary plat and the condition of leaving the north entry-exit there until the development of the final stage, is that what I got they have requested or -- and does that change, then, we have to make amotion -- do we have to change the development agreement at that time? Canning: Madam Mayor, Members of the Council, if the -- the issue may be able to be decided on the question of what constitutes redevelopment of the area, without the need to change the development agreement. The findings that you have before you tonight are, actually, the findings that were prepared based on your last hearing, so they require the access to be removed with the first final plat. Does that answer your question, sir? Bird: Yeah. And if we don't -- are you comfortable if we don't change the development agreement to state that? Canning: Madam Mayor, Members of the Council, Councilmember Bird, the -- the approval, I would imagine, would note what the concept of redevelopment is and, then, that would decide the issue. Bird: You're comfortable -- Canning: I'm not comfortable with you -- no. I'm sorry. Never mind. Bird: Well, Madam Mayor, just to follow up, I -- I don't see how you can -- and I believe - - Idon't know. These people can tell me, but I believe that that north thing is right across from the main entry into the new Valley Shepherd Church and it's a full blown deal and if -- you know, if we have -- if we allow it there and they are not wanting this as permanent, they are asking this to -- and I understand why they do. You go out there and I -- the little bit I have been seeing out there and stuff, you go buy your stuff and they go out there and they load you up with your rock and stuff and, then, instead of having to come back through the deal, you can go out and turn right and go out. I don't Meridian City Council December 4, 2007 Page 71 of 77 know. I have a hard time justifying denying something that's right across the street that's just been put in within the last couple of years and this --this has been there for ages. De Weerd: Anything further from Council? Just thought I'd ask. Rountree: Madam Mayor? De Weerd: Yes. Rountree: I have a lot of questions running around upstairs. It's late and it's hard to get them out. But I just want to make sure that I understood the applicant correct when he indicated that when phase two and three went forward that the access would be closed. I have heard that it would stay open until three was done and -- and, then, my follow-up question to that is if we never see phase two and three, what on-sight measures would be made to minimize the idea of eight new potential sources of vehicle traffic would not find their way to that access to the north, as opposed to go out on Victory Road and I don't believe the fact that it may not be improved would hinder that, because I can take you to several places in town where people have found short cuts over hill and dale that aren't paved and they are driving through mud to get around fences. So, you know, anyway, I think that's -- that's my concern about what happens if. Andrus: Madam Mayor, Councilmen, to address those points, the -- our argument with the north access is to protect the tenant's business there, the Victory Greens business, and where we have phase one set aside or -- we already have an agreement that Mr. Mussell will move his business out of that corner, so that we can redevelop. His business really can't continue there on less acreage than what is -- currently he's consuming on phases two and three. So, yes, we would like the most flexibility as possible to tie the vacation of that access point to phase three. Practically, it will happen when Tim's business is no longer viable there on that sight and that, really, is phase two and three. So, I don't- want to kind of, you know, be to fuzzy about what I talk about, that's really just the way that it will play out. Rountree: Reality and what you want are just a little bit different. Andrus: Yeah. Then -- I'm not sure I can address your last point. lunderstand -- understand your point. You know, is there something we can do, a signage or something -- we would certainly entertain any and all of that, if that's what is necessary to make everyone feel comfortable that that -- that that traffic will not be going out that entrance. Rountree: If that particular tenant decided to find another way of making a living or retire or whatever for himself, would you contemplate doing something with the access between their business office and that parcel to the north that is utilized for storage? In Meridian City Council December 4, 2007 Page 72 of 77 other words, there would be no need for the exchange and the movement of people and materials from Block 2 to the north. Andrus: Gosh, I'm not a hundred percent sure I understand your question. If the business for some reason next year was to cease to exist, would we vacate that north entrance; is that what you're asking me? Rountree: Uh-huh. Andrus: We would -- we would go into a more aggressive development of phase two and three in that event and I think that, yes, we would. Rountree: Yes, you would. Zaremba: Madam Mayor? De Weerd: Mr. Zaremba. Zaremba: This may have been asked during the October hearing and I have forgotten the answer, that the lease that the tenant has has how much longer to run on it? Andrus: Well, it's kind of complicated, but there are -- there are two leases on the property, both of them expire in two years, so 2009 and I think it's like May of 2009. One lease deals with the property toward phase one. It's not a clear break, but it's pretty close. That one is not renewable unless the landlord gives the option for him to renew it for an additional five years. The property to the -- what would generally be phase two and phase three, is renewable for five years at the tenant's request. So, the way that stacks up, then, is there really is a two year lease -- given our plans, there really is a two year lease on the area related to phase one and a seven year lease related to areas of phase two and three, if the tenant wants to take it that long. Zaremba: Thank you. Andrus: There is a whole lot of discussion associated with what I just summarized there that I feel a little uncomfortable representing Mr. Mussell on that, but that's the contract that's in place today. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: On that -- getting back up to that temporary access, did you say there was a gate with a lock on it? Meridian City Council December 4, 2007 Page 73 of 77 Andrus: Yeah. After business hours the -- the property is locked currently that the entry point is right there and we would move it to there and there is gate right here that is closed and locked and that's basically during his business hours and that's how he controls traffic coming on and off the site and he made it very clear to me that he would want to maintain that because of inventory theft. Bird: Yeah. I can understand that. De Weerd: Council, anything further? Any final remarks? Staff? Okay. Bird: Madam Mayor? De'Weerd: Mr. Bird. Bird: Before we close this -- we didn't close the Public Hearing, did we? De Weerd: No. Bird: Anna, I got a question. Are we -- are we allowed, seeing. how this is state highway, are we allowed, if we wanted to put a stipulation of that access being right-in, right-out only? Is it -- can we legally do it? Canning: Madam Mayor, Members of the Council, Councilmember Bird, the way I describe this to folks when they come into us is that you have got kind of two gates that you have got to get through to get to the highway. You -- you can tell folks what they can do as far as coming off of their property and, then, the state has the authority to say what they do coming onto the property. So, if you were to require some improvements be made on their property side that would limit them to physically basically being only able to do a right-in, right-out, that's -- that's something you could do. Bird: That's what I thought you was going to tell me. Madam Mayor? De Weerd: Mr. Bird. Bird: I guess everybody's done needing to hear any Public Hearing. I hope everybody -- anybody else wants to testify, if they don't, I move that we close the Public Hearing on PP 07-014. Rountree: Second. De Weerd: I have a motion and a second to close the Public Hearing on Item 22. All those in favor say aye. All ayes. Motion carries. Meridian City Council December 4, 2007 Page 74 of 77 MOTION CARRIED: ALL AYES. De Weerd: No one needs me ask if we have a motion. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: I'll try one. I move that we approve PP 07-014, request for preliminary plat approval for 34 commercial retail building lots and one common lot on 17.84 acres within a C-G zone for Emerson Park Commercial by Kuna-Victory, LLC, at 2910 and 3030 South Meridian Road and 110 East Victory Road. And to change condition of approval 1.1.12 to state that northern access shall be discontinued at -- at the phase -- the final plat of phase three, I guess. Rountree: Two. Bird: Phase two or three, whichever. Rountree: Which one? Bird: I want three. I said three to start with. De Weerd: I have a motion. Do I have a second? Borton: Second for discussion. De Weerd: We have a second for discussion. Discussion. Borton: Would the motion maker be inclined to amend the motion to make it phase two? Bird: You know what, (would -- yeah, (guess. (would -- the motion maker would agree to phase two. De Weerd: Does second agree? Borton: Second that amended motion. De Weerd: Any further discussion from Council?