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HomeMy WebLinkAboutJuly 22, 2003 City CouncilMeridian City Council Meeting July 22, 2003 Page 56 of 78 Nary: No. Cook: It was not. Okay. Item 14: Public Hearing: FP 03-038 Request to amend conditions of approval on the Final Plat for Packard Acres No. 2 by the City of Meridian -east of North Wingate Lane and south of East Ustick Road: Corrie: Item Number 14 is a Public Hearing, request to .amend the conditions of approval on the Final Plat for Packard Acres Number 2 by City of Meridian, east of North Wingate Lane and south of East Ustick Road. I will open the Public Hearing and invite staffs comments. Hawkins-Clark: Thank you, Mr. Mayor, and Members of the Council this application was an application that was initiated by the city. The application is to amend a Final Plat. The plat for Packard Acres No. 2 is shown in bold on the screen. Ustick Road is on the -- the north, Wingate Lane is called out here, and it doesn't reflect graphically on here, but certainly does connect to Ustick Road and comes down along the eastern boundary of this Packard Acres Phase Number 2. The public street that is shown here on the south boundary is -- is East Challis and that is a public street that was approved to cross Wingate Lane. I have submitted a number of different items into the public record that give the history and background on the project, which I think probably the Council and the majority of the public that are here are well apprised of the background to the project, so I won't -- unless you need me to, to go into that. It is there with the three or four attachments as I was included. The -- just a couple of photographs are shown here as well for the Council. Wingate Lane is currently gravel, which is shown here on the upper left picture and, then, the bottom right picture here shows a picture of East Challis crossing Wingate, which is in between the two fences here and it is paved 30 to 40 feet back from East Challis. East Challis does -- is certainly paved and sidewalked, curb, gutter across the distance there. In the application that you have there is a cover letter dated June 10, which addresses a couple of conditions that start on page two and the conditions are pulled from the Final Plat order of approval that the Council placed on Packard Estates, LLC, which was the developer of -- of the Packard Subdivision. Exhibit A in the application has a copy of the order that has all of the conditions listed there. Council did, on February 11th, have aPre-Council Meeting where Mr. Dale and Helen Sharp, which are owners on Wingate Lane, which is this five- acre, parcel here on the bottom of the screen that's currently shown RUT. It is Ada county zoning, reside, and they did testify at that Pre-Council Meeting that they had some concerns about how the city, particularly, the Planning and Zoning Department, was enforcing a couple of conditions. At that meeting the Council, as you may recall, sort of sent staff away with the instructions to kind of address this. We did send a letter to the Sharps that addressed what we felt was Council's direction, particularly the issues that are at hand on this application tonight, our proposal to remove two conditions, one of those has to do with a gate across East Challis. The conditions that are currently on this plat say that the developer was to construct a gate on both sides of Challis to keep vehicular traffic from moving east west. It would preserve an opening for pedestrians, Meridian City Council Meeting July 22, 2003 Page 57 of 78 but that was -- that was the extent. The Highway District did have a meeting subsequently, they chose to remove that condition. They said that they do not -- they did not feel that they were within their legal rights to obstruct the public right of way. Therefore, the developer was asked to remove those gates. The condition remains in the city's conditions, so we are proposing to remove that on the basis that the Highway District has the jurisdiction over public rights of way. Essentially, we are saying we don't and we are going to remove that, because of the Highway District's decision. Then, the second condition on this Final Plat is condition Number 22. It has to deal with developers or contractors repairing damages that they cause to the lane and that has also gotten some discussion. There is input into the public record as well, that the -- we feel that there is very little grounds it's a fairly unenforceable condition the way that it was approved. How does the city have evidence of the exact conditions of the lane prior to the approval and we would need to sort of track the maintenance of that street throughout the development and at this point we don't feel that we have the staff, nor the -- really, the understanding of how to enforce the condition. We certainly agree with the owners that there is -- it is a lane that shows up on some maps. It certainly is going to get used by people that do not have the right to access the private lane. That Wingate is not unusual in that regard, there is a number of lanes in the city that -- or not in the city, that, you know, the homeowners on that lane who are the primary users of the easement have the responsibility to maintain and sign the lane, et cetera, so that it gets used by only those that have the right to use it. I think, in summary, that's what this application is for is to help to bring this project to a place where we feel all the conditions are enforceable or have already been met. I think that's all I have at this point. Corrie: Thank you, Brad. Any comments, questions from Council? Okay. Is the developer or representative here this evening? Is the testimony you are about to give the truth, the whole truth, and nothing but the truth, so help you God? Wyrick: It is. Corrie: Name and address, please. Wyrick: Stacy Wyrick, Packard Estates Developers, LLC. Place of business 6223 North Discovery Way, Boise. 83713. I would like to state that on condition Number 20, which was putting up the gates across Challis Road, we did meet the conditions of the city and, then, it was, as Brad stated, overruled by ACHD, at which point we took down the gates. There were two meetings that were held and one work session that was held in discussion of taking down these gates. I was not personally there. However, what came about from that was that the developer would agree to put up an electronically operated gate on the Wingate Lane side to decrease traffic flow for them. However, for him to put that up or us to put that up, the users on Wingate Lane needed to sign a maintenance agreement stating that they agreed that once this mechanically operating gate was up, they agree that it was their maintenance responsibility. The developer's attorneys drafted said maintenance agreement and has yet to ever be given back to the developer, so he has never put up the gate. However, he has gone through and put up Meridian City CounGl Meeting July 22, 2003 Page 58 of 76 signage along Wingate Lane saying that that is not access, for the homeowners not to enter that lane, it's a private lane, do not eriter. On condition Number 22, it's really a non-issue. We have contributed to the maintenance on Wingate Lane and the developer has also agreed to contribute again. He owns property along Wingate Lane and so he contributes through that fact and he has agreed with the person that runs the fund, so to speak that they contribute to this maintenance he's agreed to contribute to that also. Do you have questions? Cowie: Any questions? Okay. Thank you. We have one, two, three, four, five, six people signed up for -against this. Is there anybody for it at this point? Okay. I'm going to have athree-minute time limit on this. We have been through this many many times. I think we are well aware of what's going to be said, but let's -- we want to hear if there is anything new about this, so we will give the people here that signed tonight, or anybody else that would like to testify, you have athree-minute time limit on this. With that understanding, we will start with Dale Sharp first. Is the testimony you're about to give the truth, the whole truth, and nothing but the truth, so help you God? Sharp: Yes. Cowie: Thank you. Name and address, please. Sharp: Dale Sharp. 4445 Wingate Lane. First off, I want to object to changing any of the conditions being proposed for change here and the thing to remember here is that the City of Meridian, ACRD, developers, and contractors are responsible for their decisions and accountable for their actions. In regard to Item Number 2, repair of damage to lane, quote the Planning and Zoning Department is fully prepared to enforce the conditions, but only after we have the appropriate evidence to support our position, photos and so forth. The City of Meridian's fundamental responsibilities are to insure the safety of its citizens in their private property. It is only -- it is not the responsibility of ordinary citizens to monitor or even provide evidence that conditions established by the city through numerous Public Hearings are being carried out, as the citizens do not have enforcement authority. This is empowered to public officials. The City of Meridian had ample opportunities to enforce these conditions as their vehicles traveled up and down Wingate Lane daily from Ustick to access Packard Estates on both the east and west side of Wingate Lane. Furthermore, we contacted enforcement officials by phone on numerous occasions to observe conditions of the lane as a result of development activities. We also sent letters requesting information on how to proceed with enforcement of rulings by the City of Meridian and this went -- on September 9th we sent one to Mayor Corrie and a copy of it went to the City Council and on November 15th to Mayor Corrie or City Council and a copy to the Ada County Commissioners. We said -- on this one we said the conditions for approval of the Packard Subdivision were thoroughly discussed and agreed to during public meetings. What happens when the conditions placed on a subdivision are not followed? We are requesting the developers of Packard Estates Subdivision to be held into compliance with agreements reached during public meetings or be subject to legal action by the City of Meridian. No response to any of this. After the fact, we received information during our February 11, Meridian City Council MeeOng July 22, 2003 Page 59 of 78 2003 Pre-Council Meeting saying we should provide pictures and, again, on February 24th stated that we should have had pictures, but not -- this request was not made before that. In regard to the conditions of the lane, steel posts, large boulders and rocks were left on the easement after development activities and I rolled those rocks and boulders aside and I put the steel posts off the easement against the telephone poles, so people wouldn't run over those and damage their cars or other -- we had to -- Kiwis had identical language in their contract to repair any damage, Mr. Nary. We had had 12 -- about nine years of this and now we have got three months -- three minutes to rebut. I would request a little bit more time. Corrie: I'll give you one more minute and, then, you stop. Sharp: Qwest had identical language in their contract and they repaired that without us having to say to them go out and take care of this. The City of Meridian repaired damage to the lane when they crossed at the sewer by the slough and we didn't to have supply photos to get that done and it was very obvious -- damage to the lane was from all the development activities beyond normal wear and tea and so we are saying that this should stand, this condition should stand, and any contract would have the repair from damage from development. Corrie: Okay. Thank you, Mr. Sharp. Helen Sharp. Is the testimony you are about to give the truth, the whole truth, and nothing but the truth, so help you God? H. Sharp: Yes. Corrie: Name and address, please. H. Sharp: Helen Sharp, 2445 Wingate Lane and, I, like my husband, I feel that we should be entitled to a little bit more than three minutes, especially when we have sat here all evening listening to those that have gone on and on and we do feel that we have a little bit new information. The big question to me is why, why are they amending a Final Plat after all this time once the subdivision has started. The City of Meridian, after aPre-Council Meeting, told the city -- Planning and Zoning they had to adhere to all conditions, not part, but all of them, and when nothing was done, Iwrote -- contacted Brad -- he probably got tired of me -- saying why aren't these things being adhered to and nothing was done. It goes on and on. Of course, there was -- I'm referring especially to condition 20 that states until two five acre parcels, the one known as Reichart and ours is developed, there would be fencing along Wingate Lane from the north boundary to the south boundary, with emergency gates across Challis Road. This was known by the developer's way back in 1995 when the issue was started and we had meetings with Ada County Highway District and they agreed to it. Now that the -- as Isay, now that they have started, then, they want to change that and I don't think that's right. It's like any law. I realize that there is supposed to be a law now similar to, but not the same as, a ruling in Sandpoint, Idaho, where Ada County Highway -- or the highway district is supposed to have jurisdiction. There is also other legislature that I have here that says if it's new, than the city or Ada County has jurisdiction, otherwise, Meridian City Council Meeting July 22, 2003 Page 60 of 78 the road district has the jurisdiction. Oh, they also said that when they changed their mind on the meeting of February 27th, 2002, that was not a Public Hearing. There was a letter written stating that it was for the residents of Wingate Lane, developers, and their people, but it was not a Public Hearing. The City of Meridian was not included in that. I cannot believe, then, that they could go ahead and change -- 48 hours later the gates were down and Challis Road became a public road. Another thing, too, is Ada County has got to have some say. Their description of a private lane is you cannot have a public road to the north, Ustick and Challis. From Ustick to Challis it cannot be a private lane. Are they addressing it as a private lane or are they addressing this as a public lane. If it's private, they will have to put the fencing back on and make sure it's private and Ada County also says you cannot have a gate across Wingate Lane, which they said that we agreed to. We did not. Some the residents were in favor of a gate across Wingate. The only ones that would be jeopardized, so to speak, by it is us. We are the dominant, the developer is servient to us. That also goes back to a ruling here that I looked up in the law library, the Idaho law book, private land use or arrangement, KS 657, K67, 1990, S406, interference by the servient owner, the developer, they are servient to us, that states the servient owner may make any use of his land which does not interfere with the reasonable use of the easement. It also says that the servient owner can do nothing to diminish the use of the easement or make it more inconvenient, costly, or hazardous. It has made a tremendous hazard there and that has been confirmed by Captain Musser of city of police Meridian -- city police. He has been out there and checked and found out it is a very serious condition and that has not been addressed either. We also have -- if it's a public lane -- if it's a public lane, then, it has -- a public road, then, it has to be brought up to standard and that was not done. We have also been told repeatedly that if there are more than four houses on the lane that's over 400 feet, it has to be -- the fifth house has to bring it up to standard. We have eight houses on the lane and, of course, it has not been brought up to standard. We -- the question is is it going to -- is it a private lane? We have a private road agreement that I'm sure you're aware of that was - like I say, we sat here all evening listening to others for hours, the Council included -- that states that it's a private road agreement from 1913 and that everybody knew about. The Ada County Highway District, the developers, and everybody knew that by joining those two there was going to be problems. They could have designed that with cul-de-sacs, they could have put stub streets. Have you ever gone to a subdivision that didn't have cul-de-sacs? What do they do when they got a cul-de-sac they go around? The question is why -- why should they at this point in time take away from us the residents on Wingate Lane? My husband and I have been there since 1968 and we have -- since they opened that up and made Challis a public road, there have been residents from the subdivision that use it. It's been posted private lane, no trespassing, but, obviously, if we can't teach kids to read, we can't teach adults either, because they do not abide by it. We have -- one of the neighbors, I'm sorry to say -- Corrie: Mrs. Sharp, your time is up. H. Sharp: I'm sorry, sir, but it just doesn't make sense -- Meridian Ciry Council Meetlng July 22, 2003 Page 61 of 78 Corrie: I said your time is up. H. Sharp: That's not fair. That's just not fair. Corrie: There is more out there that -- H. Sharp: That's not fair. When we sat here and listened to them spout off for ten or 15 minutes and we get four minutes, that's just not right. Corrie: No, they didn't spout off for ten or 15 minutes. Sit down, please. H. Sharp: Yes, they have. Yes, they have. Corrie: Okay. Billie. Is the testimony you are about to give the truth, the whole truth, and nothing but the truth, so help you God? Premo: Yes. Corrie: Thank you. Name and address, please. Premo: Billie Jo Premo. 3045 Wingate Lane. Corrie: Thank you. Premo: I would just like to enter into the testimony how much our lane is impacted, so you realize that it is affecting not just the Sharps, but all the rest of us who are on the lane. I teach at a year around school, so I'm not home during the daytime a lot and haven't seen as much as some of the others who are on vacation who would be here if they were here, but -- in town, but Ilive -- one of the northernmost people on the lane and so we get the traffic by our place all the time. We get everyone who comes down the lane passed our property and the amount of traffic has -- well, I can't even enumerate the amount of traffic that has -- you know, the volume has picked up so much. Just a couple of incidents. We know of people down in the subdivision who are giving directions to their place to people who are coming to work, because it's easier to give them directions, so they come down the lane, even though they know they are not supposed to use the lane. Yesterday I was out working in my garden and one of the big construction trucks came through with all of the debris from the construction zone, they know they are not supposed to do that, but they are doing it all the time. It is just an endless -- we see people go in with the logos on their -- on their trucks that say, you know, they are construction people, they go down, we watch them go and turn and go into the new area that's being developed and we are at your mercy, you know, what do we do? We have a speed limit zone posted. They say that on a private lane you can't have -- legally you can't have a speed limit, but we are asking for 15 miles an hour and people go by 35 to 50, because it's such a straight shot, you know, it's a half mile long, and they get to roaring down there, even though it is a gravel lane and we just -- we are at your mercy, because we don't have any rights. We pay for it, it's my land, I pay taxes Meridian City Council Meeting July 22, 2003 Page 62 of 78 on it, but I have no control over it and we are so frustrated, we are so frustrated. We have been at every meeting for almost -- well, a good eight years and every time people say we will make provisions for you, we will do something, and, then, the next meeting it's like you haven't even said anything, because you're trying to change it again and we are frustrated because we have been promised things for eight years and almost every promise has been broken and we have a terrible problem that we stated was going to be a problem the first time that we came in here and it has just plowed ahead as though we have no rights at all and that's our concern and that's why we wanted to come and restate our concerns. Thank you. Corrie: Thank you. Nary: Mr. Mayor? Nichols: Mr. Mayor?. Corrie: Mr. Nichols. Nichols: Mrs. Premo? Premo: Yes. Nichols: I'll defer to the Council Member first. Nary: Well, I was just going to ask you, Mrs. Premo, that Ms. Wyrick had stated that there was a discussion with the homeowners about putting an electronic gate and, then, the homeowners maintaining that gate going forward and, then, that had never been agreed to and hadn't been -- Premo: That has not been signed and I cannot speak for everyone, but I felt like this issue about the gates and the issues that the Sharps were addressing should come first. I, as -- the land I sit on was the original homeowner that granted the easement to go down to the Sharps and I feel that I need to honor that until such time as I'm not under that moral obligation to them anymore and, therefore, I stand until we are told that East Challis must stand and that you don't have to stand up to the agreement to have that gated until that property is sold. I feel that I am morally obligated to them to stand with them and not sign anything that would take the burden off of you. Nary: Well, Iguess -- I guess I understand your point, but I also think that part of your concern that I have heard was the traffic that's using it -- Premo: Oh, it is very definitely a -- Nary: And that could be solved by having a gate there Premo: It could also be solved by cutting off Challis. Meridian City Council Meeting July 22, 20D3 Page 63 of 78 Nary: I understand, but what I'm saying is -- so, then, what you're telling me, then, is if agree with the staff that we can't gate off Challis, because it is a public road and the highway district has control over that, you would, then, rethink on whether or not to provide that electronic gate that would only allow access to the Wingate Lane residents and that would cure your traffic problem. Premo: That would address my problems, except for my moral obligation to the Sharps. Nary: I understand. At least it would address your traffic problem better than what you have today. Premo: Yes. We have no control today. Nary: Thank you. Premo: Yes. Cowie: Mr. Nichols? Something Lee Roberts? I'm sorry. I don't do too good a job of reading names. Is the testimony you are about to give the truth, the whale truth, and nothing but the truth, so help you God? Roberts: Yes. Corrie: Okay. Roberts: Dixie Lee Roberts at 2855 Wingate Lane. I really have a lot of concerns with the gating not going up on the lateral side of Wingate Lane. It is a private lane. We pay for the maintenance of it and it's tripled, the traffic that comes down through there. I also work during the day, but I have recently had surgery and so I had an opportunity to stay home for a couple months and I would watch the workers come down on the Wingate side of my house and, then, I have a big window on the west side and I seen them go around and park where they are doing their construction and large trucks come down through there and they just barrel down through there and they are the supplies for the subdivision and it's really a problem as far as the children the pets and people just come down through there at 50 miles an hour and late at night and it's really a problem. I know the gate across Wingate, they have proposed that, but, like Billie Jo, I just don't feel like it's fair to the Sharps, they are at the end of the lane and it would cause them problems and I want to be supportive of Dale and Helen and that's my take on it and I really feel like they promised us the gates on the lateral, each side of Wingate Lane, and I just feel like that isn't being honored. Cowie: Okay. Any questions? De Weerd: No. Thank you. Meridian City Council Meeting July 22, 2003 Page 64 of 78 Nary: Mr. Mayor? Corrie: Mr. Nary. Nary: Mrs. Roberts? Roberts: Yes. Nary: Where do the Sharps live? Right here? Roberts: No. Clear down. Nary: Right here. Roberts: Yes. No. Clear on down. Right there. Yes. Nary: So, I guess I'm curious, what I was understanding is what the developer is saying is they'd put a gate right here. Roberts: I don't know. Is that where? Is that Challis right -- Nary: On the north and south side of the lane, not the east and west side of the lane. Okay? Roberts Okay. Nary: So, I guess what I heard you and I heard Mrs. Premo say, ycu have this moral obligation to the Sharps, but if there is a gate here -- but all we are talking about is gates here. I mean this is all -- this is all Packard Estates but they would put gates here right. I guess I don't see any point from what you're telling me. What you have said to us was your concerns about the Sharps and I'm just asking you, not the Sharps. They have had their opportunity, but what -- what prevents them from accessing their property if there is a gate here and not across Challis, but here -- they can access this southern part of the lane and they can get to their property. Why does that concern you? Roberts: Well, because they want usage down to Ustick down the lane and I think they have the right to have that. Nary: Okay. Nichols: Mr. Mayol'? Corrie: Mr. Nichols. Nichols: Mr. Mayor, before we go any further in testimony, I think it would be appropriate to get Ms. Wyrick back up and have her indicate where these gates would -- Meridian City Council Meeting July 22, 2003 Page 65 of 78 how many gates, where it would be, that sort of thing, so that you understand what that proposal was. Roberts: Thank you. Corrie: Okay. Thank you. Where are these gates? Take that microphone with you right there. This one right here. Wyrick: Can I just clarify? The gate that we are speaking of right now would be the gate that the developer would be willing to put in to not have traffic on Wingate Lane; am I correct. Nat the gates that we put up across Challis to prevent cross-access. The private lane gate would be right here. Thereafter, this traffic -- there is no -- there is not a way out down here nobody would be coming down here. It would prevent any traffic from going up to Ustick Road, which is what the head of the lane people are having problems with is the traffic going out to Ustick or Ustick down to Challis and this is Challis right here. Essentially, the Sharps would be the only folks using this gate to access their property. Nary: Mr. Mayor? Corrie: Mr. Nary. Nary: I know we have other folks to listen to, but since Ms. Wyrick is here, I did have one question from one of the testimony -- and you will get another chance, too. What it says in Condition 22 is besides the issue of the repairs, was the developers have agreed that no construction will be allowed to access Wingate Lane and what I heard one lady say was they are continuing to access Wingate Lane now. That's something the developer does have control over and what are they doing to alleviate construction traffic, because it sounded to me, at least from one person, that they are still doing it. Wyrick: Well, right now we can't block off their lane, we can't block off access for them. Nary: No. No. No. No. You can control the developers and the construction traffic. You have to -- Wyrick: We have communicated with our --our builders to let their subcontractors know that they can't use Wingate Lane, they are only to use the public streets, you know, we have communicated that to them. Corrie: But they are still using it. Nary: But they are still doing it. Wyrick: Okay. Meridian City Council Meeting July 22, 2003 Page 66 of 76 Nary: I guess you're not doing enough. That's what I guess my point is. It sounds to me like you need to be more diligent, because that is part of the condition here that they are not supposed to continue to use construction traffic. If we separate out the issue of repair of the lane from when it was initiated, it was a continuing obligation to alleviate constnaction traffic and at least what we have heard previously from the Sharps, as well as tonight, was that's not being addressed either, and that the developer isn't taking very diligent steps to assure no construction traffic down that, is sort of -- not you personally, but that the developer is sort of thrown his hands up saying, well, I told them and they just use it and that's the way it goes. That doesn't seem like enough. Wyrick: I don't know if it's appropriate for me to ask what the Council would so suggest that we do. Nary: Would you do more than what you have been doing now? More than what you're doing now. If it's not working, then, you're going to have to be more diligent. Maybe not pay those people, maybe get signed agreements from them not to use that lane. Maybe police it. Use an off-site manager. I mean I'm not trying to -- Wyrick: Well, we can certainly put it on our option agreement, absolutely, that, you know, they are not to use that lane. Once a builder has purchased the property, of course, you know, we have our interaction with the builder and we strongly encourage that. Nary: But whose condition is this and who is it that has the continuing obligation under these conditions, the builder you sell it to or does your client? Wyrick: Understood. Corrie: Vern Alleman. Is the testimony you are about to give the truth, the whole truth, and nothing but the truth, so help you God? Alleman: I do. Corrie: Thank you. Alleman: My name is Vern Alleman, I live at 2101 East Ustick, Meridian. I have given a great deal of thought to this situation and I'm deeply troubled at what is being proposed. You may ask why I should be concerned, as I do not live along Wingate Lane and this does not impact me one way or the other. Let's examine this. In 1913, neighbors got together, wanted a lane, and said we are willing to dedicate part our land for this purpose and we will maintain same. The understanding being that it would be a private lane for the benefit of those dedicating the land. Now, I'll give you the definition of private. Private: Not open to, intended for, or controlled. by the public. Let's see. Understand this was not public land and there has not been any public funds used for this lane. Not only that, but the people continue to pay taxes on the land so dedicated this is truly -- this truly verifies the privacy of this lane. Let me say the real reason this Meridian City Council Meeting July 22, 2003 Page 67 of 78 concerns me is government taking private property rights away from people. You may say this is just a small thing and it doesn't -- it doesn't affect me, so why worry about it. The way we lose our freedoms is by one small incident at a time. Where is the integrity of the county and the city? What is a Final Plat? When is a Final Plat not final and when is a Final Plat final? Who decides when a Final Plat can be changed? Can you site me an instance when individuals have been allowed to change a Final Plat? There were a number of hearings on this situation and it was always agreed and stated that Wingate was to be gated. This was agreed to by both the county and the city. The road across Wingate Lane should never have been allowed. Remember, this is private property. I ask each of you what you are going to do when the government invades your private property. This lane can and should be gated just as gated communities are, which allow emergency vehicle access. I ask you to put yourself in these people's position and not change the Final Plat. Please do the honorable thing and implement the plan you agreed to and at least give it a try before you say it won't work. Corrie: Thank you, Vern. Any questions, Council? Okay. Thank you. I believe the next one is Audrey Bentley. Is the testimony you are about to give the truth, the whole truth, and nothing but the truth, so help you God? Bentley: Yes, it is. Corrie: Thank you. Name and address, please Bentley: Audrey Bentley, 624 East Wakely Court, Meridian, Idaho. 83642. I think we are all pretty frustrated here. I know I'm frustrated. This is the first meeting I have been to, but the Sharps are my parents and I have watched them deal with this for nine years and I'm pretty -- getting pretty mad, mad at Ada County Highway District, mad at the developers, mad at the City Council, my parents had to go out and get lawyers -- I don't know how much time my mom has researched, gone to the law library, and nobody seems to listen, nobody seems to care. First of all, Ordinance 389 says there it no gates or other travel way obstacles shall not be allowed on a private lane. It is a private lane. Ada County Highway District illegally crossed it, there is a lawsuit on that going right now, as you should know. The question is what are we going to do. You asked why don't we put a gate right in front of the Sharps? The Sharps have grandfather rights the people on the lane are subservient to the Sharps. Why should the Sharps be the only one who has to deal with the gate, because we all know electronic things, they break down, so who is going to fix the gate when it breaks down? The Sharp? I don't think so. Why should that be their responsibility? As far as safety, Meridian police has been out there, they say it's a safety hazard, because it is a safety hazard. People speed down Challis, they speed up turning up to the lane, which I have almost had people hit me, hit my children on their bikes, so when it comes down to it, if something happens to anybody of my family or anybody on the lane, you will take responsibility, Ada County Highway District will take responsibility and the developers will take responsibility. The gate should be up on Challis. You guys made that decision in the last Council meeting. You guys need to do your job and enforce your decisions. Quit -- you just -- you make these decisions -- how -- where in the business world is it that if Meridian City Council Meeting July 22, 2003 Page 68 of 78 you don't like what somebody told you, you just go make a million changes. That's what's going on, change after change after change. Why don't we do our job and enforce what you have decided? That's all we are asking you to do. Everybody is so scared of Ada County Highway District. They are not God. They can be brought down. Enforce what you decided. That's all we are asking you to do. Thank you. Corrie: Thank you very much. Is there anybody else that would like to issue testimony? Okay. The developer is up next. You can -- anything that's come up you can have the last word here. Wyrick: I don't know that we really have a rebuttal, other than that we are -- we have put the offer out there several times to try and compromise with what ACHD has said their jurisdiction is over and that's to cross Challis and we have tried to provide what seems like the right thing to do for the parties involved. Corrie: Okay. De Weerd: Mr. Mayor? Corrie: Mrs. de Weerd. De Weerd: I know our staff and our attorney have looked at several different options and -- and I hope that Mr. Nichols can address this as well, but from my understanding of what they have found out is the city doesn't have the authority over roads and it's a condition in our finding, but because ACHD went the process -- and I guess until this lawsuit is settled, we have to -- and I guess this -- I would like to be corrected if I'm wrong -- go with the decisions of Ada County Highway District. The law supports that. The cases that I know the Sharps have brought up, we've had our attorney look into, and it still shows that the jurisdiction goes to the Highway District. We feel like our hands are tied. I also agree with neighbors and I really admire that they are standing to the agreements that were made in 1913, that the Sharps definitely have grandfather rights, in my opinion. I don't see why a gate should have to go on Challis to inconvenience the Sharps when they were the first ones there. Unfortunately, I'm not the one that makes the decisions on those gates and what opened Challis up. I guess the lawsuit is going to make those decisions. What our staff was looking at in trying to change this out of our findings is that it's something that we can't enforce, because we don't have the authority to do it. Believe me, Mrs. Sharp, if I see that we have the authority to do it, then, that's something that we can do. What our staff has found and from the counsel of our attorney is that we do not have the legal authority to enforce those conditions. We are kind of looking at another way of adopting the findings of Ada County Highway District in a way that -- that we can have an effect on as a city and what we can't have an effect on as a city. I understand your dilemma. I think that we have a dilemma, too, and until I'm told differently, I -- I have to agree with you that it's not fair, but I don't know what we as a city can do to suggest it. I know -- I've seen Mr. Alleman at these annexation hearings, we don't want to force annex and so we look at grandfather rights and say certain things shouldn't happen until those grandfather rights Meridian City Council Meeting July 22, 2003 Page 69 of 78 are transferred, because someone has sold their property, and I know the Sharps have said that. I don't know what the answer is, but I don't know if we can enforce a condition that we have no legal authority over, and that is why the staff has brought that in front of us. I guess my question to the attorney is if you can address the legal ramifications of enforcing a condition that we don't have jurisdiction over. Nichols: Mr. Mayor, Members of the Council, the issue is -- is one of competing jurisdictions and where ACHD has, by state law, jurisdiction over the rights of way in this county, the city's role with regard to streets is limited. They have some role over how streets are placed, how streets are designed, such as the last Preliminary Plat that preceded this one as far as the Council denying that plat because of inadequate street design. The city can't -- the city tried with regards to that condition, but ACHD pulled the trump card is what it boiled down to. Now, perhaps through the lawsuit we will find out something different, but I don't believe that that's the case. The other thing that I think needs to be emphasized here, Mr. Alleman, the developer to the subdivision had access rights to Wingate Lane. The Wingate Lane agreement from 1913 does not state a limited number of residences, it doesn't do anything other than state the width and the property that benefits from the easement. The developer could have insisted on access to the lane, but chose not to, and I think one of the conditions was we required that the developer release any interest in that easement. In terms of enforceability, the two conditions that the application before you requests to be removed from the Preliminary Plat -- or, excuse me, from the Final Plat. The first is condition Number 20, which is the condition which required gates, which would be parallel to Wingate Lane and cross Challis and that is the condition. which ACHD has denied the enforceability of and required the gates be removed. The second condition has to do with repair of damages to Wingate Lane from the development activity. The easement holders have a private cause of action for any damages that they wish to prove with regard to that. If I understood Ms. Wyrick's testimony correctly, the developer is poised or ready to participate in the maintenance of the lane. The issue of unauthorized construction traffic is also one that there is a private right of remedy for. If the developer has, in fact, released the easement for the property under the development, then, those contractors and material suppliers have absolutely no right to use that lane and, therefore, they are trespassing. Wingate Lane is, for the most part, county property and I think the sheriff would have jurisdiction over those that have no right to be there. Certainly, a preliminary injunction, temporary restraining order, from a private lawsuit would be available to those lot owners that have rights on Wingate Lane, if that's what they prefer. I think Councilman Nary's suggestion that there are other things the developer can do to put some teeth in it. When we see the XYZ lumber truck come down the lane, the ABC truss company truck come down the lane or the Joe's plumbers come down the lane, unless they are going to the Sharp's house to fix the sink, then, I think there is some things that Mr. Groves and the others involved in the development can do. Require the builders to agree to and maybe impose some penalties that -- that would require -- you know, I mean contractors are a difficult bunch. You know, we see the signs of the subdivisions, no loud music, no dogs, no this and that, and they don't always obey them, but I think there is -- the developer is the one who has some control and perhaps -- I don't know if this particular development is one that's open to all builders or only Meridian City Counal Meeting July 22, 2003 Paga 70 of 78 select builders and there are means at the developer's disposal to enforce that, but I'm not sure that's the city's business to do it at this point. If you believe it is, then, I would revise condition Number 22 to modify and delete all but the last sentence, which would require the developer to come up with a plan for reducing or eliminating construction traffic along that lane. Perhaps even impose in that condition that if they do not, that the dominant estate holders in Wingate Lane have a private cause of action, make them third-party beneficiaries, and they have a private cause of action against the developer. Nary: Mr. Mayor Corrie: Mr. Nary. Nary: I wholeheartedly agree with what Mr. Nichols said and I think that the best that I can see out of this hornet's nest that exists is on condition 20, that we would consider amending it to include the language: If allowed by law. Because, I agree, I don't believe it is allowed by law. If someone tells us differently, then, the condition could be enforced. It isn't enforceable today in the current state of the law. I don't have an objection and I guess I'm going to propose here in a second, unless someone else has an alternative, that on condition 20 that the developer install -- construct and install gates on the north and south of Wingate Lane if it will be maintained by the property owners of Wingate Lane. It's just me, but I would not have put up with this for eight years. I admire the Sharps to be so diligent in this in not giving up, but I wouldn't have put up with it for eight years if I had one alternative that at least would eliminate it, although I recognize it's inconvenient, I would at least have eliminated the problem and still address the issue, as they are attempting to do. If the homeowners on that lane will maintain a gate so that that could be repaired, that will alleviate the traffic problem and at least resolve a piece of the issue. On condition 22, I agree with Mr. Nichols, I would recommend -- or at least what I'm going to propose is that we eliminate all of the language but the last sentence. I think what has happened here in just my short time here in listening to this is that that sentence got swallowed up by the whole issue of the initial development of this property and it really hasn't been addressed very much in the last five or six years and that has allowed the situation to exacerbate to where these neighbors are justifiably frustrated that this has not been addressed fairly at all by the developers. I think the developer should have to provide a plan to the city as to how to alleviate or eliminate construction traffic on Wingate Lane to include, but be limited tc signage, gates, or any other alternatives to be approved by the Planning and Zoning Department and that the private landowners have the opportunity -- have the private cause of action to enforce it as well if it isn't being adhered to besides the city. There are only so many things that we can enforce, but I think that's something we can address better than has been addressed to this point and I think some plan which has been nonexistent to this point needs to be done, but I don't think anything else in that condition regarding the preexisting condition of the lane is enforceable eight years later. I don't think there is any way anyone can enforce that. I don't think that's something that really needs to continue to be in there. That's my thoughts on those two things, that I think we need to amend them both and try to address some of these concerns, but some of this stuff we can't enforce it. Meridian City Council Meeting July 22, 2003 Page 71 of 76 McCandless: Mr. Mayor? Corrie: Mrs. McCandless. McCandless: I have a great deal of empathy for the people who live on Wingate Lane and the problems that they have found, but in listening to our attorney, I don't know that we can do an awful lot about it. I think it has to be done by private -- what did you say, private attorneys that can solve those things or attempt to solve them. ACHD -- we fight with them ourselves. They have so much authority and we can't cross them as far as their authority with the public roads, but I do feel that you people have a very good complaint. I honestly don't know what we can do about it, other than what Councilman Nary has said, but we haven't ignored it like we have been accused of doing. We only have so much authority when it comes to those private roads and things of that sort. We can't do anything else. De Weerd: Mr. Mayor? Corrie: Mrs. de Weerd. De Weerd: I guess in comment to Councilman Nary's suggestion, if we can't impose the gates on Challis, I guess the only other option would be the gates on Wingate, but -- and lunderstand the Sharps' objection to it. I really do. What I -- and that would have to be acceptable to the residents on Wingate Lane. My concern is the gates were to go on Challis and they would have been maintained by I don't know who, either ACHD or the homeowners association. Why, if you put gates on Wingate do the Wingate residents have to maintain them? They didn't ask for the opening on Challis. Why would that, then, be their burden? Just a question. Corrie: The only thing I can say it's their lane, it's not a public lane, so the public should not have to do it. I can see your point that if it's a private lane and they don't want a gate there, they don't have to put a gate there, but they are not going to stop traffic if they don't. I mean we have no jurisdiction over a private lane. That's theirs. They can go to court and the court can settle it and it's been -- I think debated enough that they are going to have to go to court if they want to get the street the way they want it and I don't think they will get that either. It's just -- that's the law. I think if I hear Mr. Nary right, they are going to -- you would eliminate condition 22, except for the last sentence, and put it on the developer to -- that no construction traffic means no construction traffic. It's a private lane. Then, they will have to have the sheriff to come out there and get anybody that wants to, I guess that's on their property, but we can't do it, we can't even send our Police Department out there and enforce the law on a private lane. I think that it's going to have to be settled in a court of law and that's the way it's going to have to be. If there is no other discussion, I will entertain a motion to close the Public Hearing, if the Council has nothing else to say on the Public Hearing. Nary: Mr. Mayor, I did have one more question for Ms. Wyrick. Meridian City Council Meeting July 22, 2003 Page 72 of 78 Corrie: Okay. Nary: Ms. Wyrick, Council Member de Weerd sort of asked the rhetorical question about the original gates that were on Challis. Those were installed by the developer and removed when ACHD required them to be removed. Wyrick: That is correct. Nary: Who was maintaining them? Wyrick: They would have belonged to the homeowners association, Packard Estates homeowners association, just as the homeowners association maintains the perimeter fencing. Nary: So, then, why was the obligation put to the Wingate Lane association to maintain the gates that are moved? If we move them from east to west to north and south, why wouldn't Packard Estates just maintain them again? Wyrick: The gates that were put up on the homeowners association property were more a cedar fencing style gate and the gates that will be put up, should the members of Wingate Lane choose to accept the developer's offer, are more of a mechanical, more in the lines of a 10,000 dollar gate that would be mechanical and used only by them. The gates that were going to be -- that were actually installed across Challis were for emergency purposes only, they weren't to be opened or closed, or -- other than a pedestrian crossway, which had a lock on it. I'm not sure if I -- Nary: Other than the value of the gates, the principle of maintaining it was the obligation of the developer. When did -- why would the principle change of who maintains it, just simply because the cost of the other gate is more extensive? If you were obligated to maintain them previously, why would you still not be continued to be obligated to maintain them now? Just because they are more expensive really isn't the issue. Wyrick: I understand. The gates that were put up were for emergency purposes only. That's what we were told to put up was something that an emergency vehicle could crash through. Otherwise, the property would have had perimeter fencing, just as the City of Meridian requires us to put up and there would have been no gates at all. Nary: But it was also intended not just for emergency -- I mean it was for emergency access to get through them, but the purpose of putting them there in the first place -- I mean I can understand your point if we were only talking about a gate on the west side of Wingate Lane, but they were required to put -- and I wasn't here, but there was a requirement to put a gate on the east side of Wingate Lane. That wasn't for emergency access, that was to prevent traffic from driving down Wingate Lane; right? Meridian City Counal Meeting July 22, 2003 Page 73 of 78 Wyrick: I didn't understand it that way -- oh, too -- Nary: You would only need it on the west -- if all it was was for emergency access, you would only need a gate on the west side of the lane; correct? Wyrick: Sure. I understand your point. Nary: So, once you put it -- once it was required to put it on the east side of the lane, it only goes to assume that it was also intended to prevent the traffic from driving on there. Now that we have moved the gates to a different location, why would the obligation to maintain them change? Wyrick: I'm sorry, I can't answer your question. Nary: Okay. Thank you. Nichols: Mr. Mayor? Corrie: Mr. Nichols. Nichols: Mr. Mayor, Members of the Council, I don't know if -- piggybacking on that last question, if you want to continue the hearing to allow Ms. Wyrick to inquire of the developer if -- so there could be a response to the question. Another alternative would be that the gate would be maintained by the homeowners association until the last lot is developed and sold and built upon or some other issue that could have some termination date for that maintenance responsibility that would be coincident with the developer continuing to sell those lots coincident with the need to eliminate construction traffic on that lane. Nary: Mr. Mayor? Corrie: Mr. Nary. Nary: I guess I don't have an objection to continuing it to get a better answer to that question, but I guess when Ms. Wyrick goes back, if we do that, if Ms. Wyrick goes back to talk to her client, I guess the answer I want is if we had the legal authority to require them to put the gates on the west and east boundaries of Wingate Lane and for them to maintain it, why don't we have the legal authority to put it on the north and south of Wingate Lane and for them to maintain it. Now, I understand homeowners don't necessarily want that there and if they don't want it, then, they don't have to have it, but if they want to eliminate the traffic, that is the only way to eliminate the traffic. There isn't any other altemative better than that. The issue of maintenance, I think as Council Member de Weerd raised, is is why should they be obligated to maintain them. The whole intent initially was to eliminate the traffic on that lane, so if the authority existed to impose it, I don't see why there isn't authority to make it be on the north and south, instead of the east and west, so -- but I'm all in favor of continuing it if they can get a Meddian City Council Meeting July 22, 2003 Page 74 of 76 better answer to that question and if we don't have the legal authority to impose that, then, Mr. Nichols can tell us that and the developer's attorney can tell us that, but I don't know the answer to that. De Weerd: Mr. Mayor? Corrie: Mrs. de Weerd. De Weerd: Then, I have a question for the attorney. If we have the legal authority to ask that gates be put on on the north and south, why don't we on the east and west? Is it because of the right of way issue or -- which I'm assuming that's the case or -- or what? Nichols: Mr. Mayor, Members of the Council, we have to look at the issue. A lot of times these conditions are imposed to try to achieve a compromise and the developer agrees to them and they are put into the -- either the development agreement or the findings are agreed upon by the developer as a way to compromise an issue and that doesn't necessarily mean that it would be an independent way to impose the condition. We'd have to look at that. De Weerd: It just seems that expense wise and the developer had already done it, they put gates up on the east and west side of Challis. Nary: Yes. They were just wooden -- De Weerd: And that was -- well, they were wooden fences, but they solved the issue that the developer needed to do and they addressed the desires of the residents. If we have the legal authority to do it north and south, we should have the legal authority to do east and west and I guess that's what I want further clarity on. Nary: Mr. Mayor? Corrie: Mr. Nary. Nary: Yes. I guess I'm not -- I don't believe we do have the legal authority. A gated community is not like a very complicated issue. They can have a gate across that roadway if the developer requests it and ACHD agrees to it. It's nc different than any other gated community. I don't think we have the right to impose it. I think ACRD has the right to allow it. One of the things that I haven't heard from anybody in this is that the developer asked to put the gate there. They actually wanted to remove it and ACHD said, yes, it's a public street, take it out. No one's ever asked that Packard Estates be gated from that point that I know of. I don't know why the developer, to help resolve this issue, hasn't requested -- and maybe they have, but I don't know this -- why they haven't requested of ACHD the authority to gate off Challis Street at that location with gates. That's a public street. That doesn't have a tremendous necessity, at least from what we are looking at up there, there is plenty of access, you can provide gated Meridian City Council Meeting July 22, 2003 Page 75 of 76 access both to the Wingate Lane people, as well as the Packard Estates people and they can get out onto Challis Street in that location if they want to or they can proceed through the other ways to get out of that subdivision, but I don't think I have ever heard anybody say they have asked for it and I think if they ask for it and ACHD agrees to it they can do it. There are gated communities all over the place. Nichols: Mr. Mayor, Members of the Council, I don't know, maybe Brad can help me out on this, but the gated communities I have seen are private streets and so if you're talking about gating off Challis, as opposed to gating off Wingate, I'm not -- Nary: And I don't know that. Yes. I agree, there may be an issue there, too, but I think those are the questions that really haven't been answered. There has been a lot of rhetoric that we have heard about the frustration everyone's felt and the anger they have had and the traffic that continues and all these other things, but, you know, the real brass tacks is what can we do to resolve this and I don't know that there is a good answer that everybody is going to like, but I haven't heard anybody talk about whether that's a possibility, whether or not it has to be a public street, whether or not it can be rededicated as a private street, whether or not there is any of those things that have been explored -- I don't know. To me, if we are going to continue this, then, those are the kinds of issues that we at least want to talk about a little further. If we are going to carve out something that nobody's going to like, I'd at least like to have as much information as we can get. De Weerd: I agree. Mr. Mayor? Corrie: Mrs. de Weerd. De Weerd: I don't even know if ACHD can talk about it at the time, since they are in a lawsuit. How long do you continue it? Nary: Well, the developer can. I mean he can at least give us more information as to what's been done to this point, so that we have -- again, if we are going to carve out something from what we have right now, we at least need a little bit more information and Ms. Wyrick needs to really talk to her client to get a better sense of what exactly has been done. I don't know, but I think the Sharps and the rest of the neighbors don't feel like a lot's been done and I don't know that we have heard a lot, so that's all I've got. De Weerd: When do you want to continue it to? Nary: At least two weeks. Mr. Mayor? Corrie: Mr. Nary. Nary: I guess I would suggest at least two weeks, if not three. Mr. Bird, I think, would like to have the opportunity to read the transcript or listen to the tape, and get up to Meridian City Council Meeting July 22, 2003 Paga 76 of 78 speed. I think he certainly would like to participate in this discussion and I don't know whether two weeks is cutting it close for him to do that, if three weeks would be better. Corrie: I would say three. I won't be here -- Nary: Oh, right. Three weeks might be better. The 12th of August might be better to continue this to try to get some of that information. Again, we may not have much more than we have today, but I think at least we have to give some opportunity to get a little bit more information than what we have and, then, Mr. Bird also can be prepared to participate. De Weerd: Okay. Well, I would make a motion to continue this Public Hearing until August 12th, 2003. Nary: Second. Corrie: Okay. Motion has been made and seconded to continue the Public Hearing until August the 12th, 2003. Any further discussion? Okay. All those in favor of the motion say aye. Opposed no? All ayes. Three ayes. Motion carried. The Public Hearing will be continued to August the 12th, 2003, for the developer to get the answers to those questions. MOTION CARRIED: THREE AYES. ONE ABSENT. Item 15: Continued Public Hearing from June 24, 2003: Fire Department Plan Review and Inspection Fees: Corrie: Okay. Item 15 is a continued Public Hearing from the June 24th, 2003. Fire Department Plan Review and Inspection Fees. De Weerd: Mr. Mayor? Corrie: Mrs. de Weerd. De Weerd: I believe that we -- I know Joe is out of town and I think that we had continued this to August 12th. August 12th? Okay. Corrie: August 12th, then. Berg: Mr. Mayor, there is a memo from Chief Bowers that says that Joe will be back off vacation August 12th. Corrie: Okay. Seeing nobody in the audience, I will entertain a motion to continue the Public Hearing on Item 15 until August the 12th. De Weerd: So moved.