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HomeMy WebLinkAboutDakota Company, Inc. APP,. A i 1 •` A ~ ~~~., - .~ ~: MERIDIAN CITY COUNCIL MEETING: NOVEMBER 4, 1998 APPLICANT:- ROBERT L. PHILLIPS ITEM NUMBER: 5 ~' REQUEST: APPEAL OF P & Z RECOMMENDATION'OF CONDRIONAL USE PERMIT FOR DAKOTA COMPANY INC. AGENCY COMMENTS CITY CLERK: SEE ATTACHED APPEAL CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY: CITY POLICE DEPT: CITY FIRE DEPT: CITY BUILDING DEPT: "CITY WATER DEPT: MERIDIAN SCHOOL DISTRICT: MERIDIAN POST OFFICE: ADA COUNTY HIGHWAY DISTRICT: ADA COUNTY STREET NAME COMMITTEE: "CENTRAL DISTRICT HEALTH: ;~ NAMPA MERIDIAN IRRIGATION: "SETTLERS IRRIGATION: IDAHO POWER: US WEST: INTERMOUNTAIN GAS: BUREAU OF RECLAMATION: ~,s~ r~~ ~'a.~ ~`~, ~~J~ a~'~ ~ ~u~~' OTHER: All Materials presented at public meetings shall become property of the City of Meridian. ' ~ ~~ RECE'~D o c Y z $ ~~~s APPEAL APPLICATION FORM CI'I'I' OF N~RI~~V' Appeal of Decision of: Zoning Administrator City Engineer Building Department Staff P&Z Commission Other (Specify) Applicant: Address: Phone Number: Nature of Anpe d ~~~~~ I~~ S ' ~ _ ( ~~~ - g sa ~ ~-~~-~ -~~~ 1 --~ ~s~~~ ~GfI7Z/ ' / `1J ~~r1Yv CJ ~ ~ V /~CJ ~ ~ ~ w YL-' . I G%~~C~G~J C/ / ~/ ~ _ _~~_ G LAG-~C._O~G~! Lc~7~l~ ~~~ / slg[la a f~ ~. _ ~°• 'f~(Y+ oixr < i .: yria f,~ .. ,~,,~. s i~v,. asiyr ^'c MERIDIAN CITY COIL MEETING ~ - -~ „_ ~s NOVEMBER 4, 1998 PAGE 9 MOTION CARRIED: All ayes. ITEM NO. 5: APPEAL OF CONDITIONAL USE PERMIT FOR,DAKOTA~ COMPANY=INCA BY ROBERT L. PHILLIPS: Rountree: The request has been received by the city to withdraw that particular appeal, probably need a motion from council to get that off the table and to accept that. Bird: !move that we accept that withdrawal of the appeal on the-request for withdrawal and dismissal of appeal in the matter of Hermes Associates and Dakota Company Inc. Anderson: Second. Rountree: It's been moved and seconded to remove the withdrawal for the appeal of conditional use for Dakota and Company, all those in favor? MOTION CARRIED: All ayes. ITEM N0. 6: APPOINTMENT OF DEPUTY CITY CLERK BY MAYOR: Rountree: I have no information on that so I'm going to request that you folks table that. Bentley: Incase that the mayor gets here, do we just want to move it. Rountree: Why don't we move it to the end of the agenda an if he shows up, we can move on it. Bentley: So moved ' Bird: Second Rountree: All those in favor of moving item no. 6 to the end of the agenda? MOTION CARRIED: All ayes. ITEM NO. 7: WATER/SEWER/TRASH DELINQUENCIES: Rountree: This is to inform you in writing if you choose to-you have the right to a predetermined hearing at 7:30 P.M. Wednesday, November 4th before the mayor and the city council to appear in person to be judged on the facts and defend. the claims made by this city that your water, sewer, or trash bill is ~. f ~ .. ~~ Appeal of Meridian Planning and Zoning Commission Recommendation I. Basis for the Appeal This is an appeal of the Findings of Fact and Conclusions of Law and gEcE~D OCT 28 1998 CITY OF MERIDIAN Recommendation to City Council in the Matter of the Application of Hermes Associates and Dakota Company, Inc., the Application for Conditional Use Permit for a Regional Shopping Center ("Application"), South East Corner of Eagle Road and Fairview Avenue, 74.74 Acres, Parcel One and Parcel Two, Tax Parcel Numbers S1109233945 and S 1109212467, Meridian, Idaho ("New Findings"). The New Findings are dated October 13, 1998. This appeal is being made consistent with Sections 11-2-418 G and 11-2-416 G of the Meridian Zoning and Development Ordinance. Consistent with those sections, this appeal is being properly filed within fifteen (15) days after the Planning and Zoning Recommendation. I am aware that the City Council does not grant a hearing associated with this appeal, and no such hearing is being requested. II. Aggrieved Party My name is Robert Phillips and my address is 3437 Presidential Drive, Meridian, Idaho. I live in the CrossRoads Subdivision and my property abuts the regional shopping Appeal of P&Z Recommendation 1 center proposed in the Application. I attended and testified at several of the public hearings held by the Planning and Zoning Commission. III. Reason for the Appeal. I want the Council to know that I thought about this matter at length before making this appeal. I understand and appreciate the considerations given this matter by our Planning and Zoning Commission. The Commission patiently listened to a significant amount of testimony. Although I appreciate their efforts, the New Findings approved deeply trouble me. The New Findings are not consistent with the City of Meridian's Zoning and Development Ordinances, Subdivision and Development Ordinances, Comprehensive Plan, and the specific development plan approved by the City Council for the property described in the Application. IV. Background The Crossroads Subdivision and.the proposed regional shopping center are in a Light Industrial zone (I-L) at or near the corner of Eagle Road and Fairview. Neither. commercial nor residential uses are allowed in this zoning. However, such uses-may be allowed. in an I-L zone through a mixture of uses under a Planned General Development. The Planned General Development is defined as: Planned General DeveloQment (PD-G) - A development not otherwise distinguished under Planned Commercial, Industrial, Residential Developments, or in which the proposed use of interior and exterior spaces requires unusual design flexibility to achieve a completely logical and complementary conjunction of uses and functions. This PD classification applies to essential public services, public or private recreation facilities, institutional uses, community facilities or a PD which includes a mix of residential, commercial or industrial uses. - Appeal of P&Z Recommendation 2 Meridian Zoning and Development Ordinance, Section 11-2-403 B Planned Development General (PD-G). (emphasis added). A Planned General Development requires a conditional use permit, and such a permit was granted in 1991 to GemTone,. the owner of the property. See Findings of Fact and Conclusions of Law, approved by Meridian City Counsel, March 19, 1991 ("Original Findings"). The Original Findings discussed commercial and industrial uses although residential uses could be allowed under a Planned General Development as stated in the Original Findings. See Original Findings, paragraphs 2, 6. In 1993, GemTone and a residential developer proposed a plat as part of the development plan. This plat included residential and commercial uses as depicted in Exhibit A. When asked by the Planning and Zoning Commission why the development plan was now including residential, the following discussion took place: Crookston: What's the reason forahe change from the commercial industrial to the residential? Tom Wright, 1412 W. Idaho, Boise, was sworn by the attorney. Wright: I'm part owner of GemTone, the owner of the property. The answer to Mr. Crookston's question is I would say strictly market demand. Crookston: What kind of commercial are you going to endeavor that's not going to interfere with residential living? Wright: We're going to covenant as to color, height, types, landscaping, lighting, hours of operations, etc., in order to protect and in essence enhance the residential. We won't allow major heavy industrial use. I would call it light commercial and ..office type uses. Minutes, Meridian Planning and Zoning, May 11, 1993, page 23 (emphasis added). Appeal of P&Z Recommendation In front of the City Council, similar representations were made as to restrictions on the commercial use. The residential developer confirmed his understanding of the proposed commercial uses adjacent to the residential development as follows: Yorgason: To address the question of screening between the residential and commercial. Number one, by covenant we will have in the commercial area it will be light commercial and there will be screening on their side as well as a we'll be putting a fence on our side. As the commercial goes in there will be shrubbery that will go between that as well. Minutes, Meridian City Council, June 15, 1993, page 7 {emphasis added). Both the Planning and Zoning Commission and the City Council were told that ` "the types of commercial uses would be "light commercial" uses. In fact, the residential developer told City Council that a significant part of the screening was the "light commercial" use. This was his first response to screening before he mentioned other buffers. After the approval by both the Planning and Zoning Commission and City Council, a single family residential subdivision was built with. approximately two hundred and fifty .(250) homes. Such homes -were built under a development plan stating "light commercial" uses would be built adjacent to the subdivision. Realtors sold homes and made representations to residents about the types of uses that would be next to the subdivision. See e.g., various home owners testimony in the Minutes, Planning and Zoning Commission, August 11, 1998, pages 61-64, 65-66. Given the public hearings in 1993, such representations appear` consistent with the development plan and its objectives. Hundreds of people including, both homeowners and Realtors have based their decisions on the development plan that emphasized light commercial uses. Appeal of P&Z Recommendation 4 V. What is light commercial? Commercial uses include a variety of things from professional offices to retail uses. The Meridian ordinances contain several different types of commercial zoning districts where various uses are allowed at different levels of intensity. The five most prevalent are Limited Office District (L-O), Neighborhood Business District (C-N), Community Business District (C-C), Regional Shopping Center Business District (RSC), and General Retail and Service Commercial (C-G). See generally Meridian Zoning and Development Ordinance, Section 11-2-408 B. Although "light commercial" is not defined in the Meridian ordinances, commercial uses are allowed in various districts depending on their use and intensity. The ordinances sometimes indicate which uses are more compatible with other uses. For example, the L-O and C-N uses discuss such districts compatibility to residential uses. An L-O is specifically "designed to act as a buffer between other more intense non-residential uses and high density residential. uses, and is thus a transitional use." Meridian Zoning and Development Ordinance, Section I 1-2-408 (7). Additionally, certain uses are less intrusive and allowed in a variety of districts. For example, professional and sales offices are allowed in all five commercial districts and some high density residential districts. Meridian Zoning and Development Ordinance, Section 11-2-409 B. With regards to shopping centers, there are three types: Neighborhood Convenience Center (Commercial); Community Shopping Center (Commercial); and Regional Shopping Appeal of P&Z Recommendation ~J Center (Commercial). The Neighborhood Convenience Center is approximately 30,000 to 200,000 square feet. Meridian Zoning and Development Ordinance, Section 11-2-403 B Neighborhood Convenience Center (Commercial). The Community Shopping Center is generally about 100,000 to 400,000 square feet. Meridian Zoning .and Development Ordinance, Section 11-2-403 B Community Shopping Center (Commercial). The Regional Shopping Center is over 750,000 square feet. Meridian Zoning and Development Ordinance, Section 11-2-403 B Regional Shopping Center (Commercial). In contrast to lighter commercial uses, a regional shopping center is one of the most intense commercial uses and is the most intense shopping center use. Its location is restricted to the Regional Shopping Center Business District. Meridian Zoning and Development Ordinance, Section 11-2-409 B. Although there could be some debate, over what "light commercial" might mean, there is no way a regional shopping center would ever qualify under any reasonable defuution. VI. Planned Developments require a Development. Plan. The Planned Development Section of the Meridian Planning~and Development Ordinance is a powerful tool. It provides great flexibility to achieve certain objectives. Even modifications to Meridian ordinances are allowed so long as they meet certain criteria of the Planned Development Section. See Meridian Planning and Development Ordinance, Section 11-9-607 E. The essential key to a planned development is a development plan. The developer is required to provide City Council with a rendering of the completed development and Appeal of P&Z Recommendation go through the normal subdivision process. See Meridian Planning and Development Ordinance, Section 11-9-60'1 D. A Development Plari is defined as: Development Plan (Preliminary and Final Development Plans) -All plates, plans and/or submissions by a subdivider or developer in whole or in part describing a development and considered by the Commission and Council. Meridian Zoning and Development Ordinance, Section l 1-2-403 B Development Plan (Preliminaryand Final Development Plans). The completed development plan allows the Planning and Zoning Commission and the City Council to comment on the completed plan. Modifications to zoning ordinances may be .allow only if such modifications are part of the Final Development Plan, meet the objectives of the planned development, and comply with other requirements of the Planned Development Section. VII. The Development Plan did not include a Regional Shopping Center. The Original Findings did not describe what types of commercials uses would be on the property. However, a plat for about one hundred and sixty (160) acres on the east side of Eagle Road.was submitted to City Council in 1993 as a part of the development plan. See Exhibit A. The plat contained areas designated for commercial uses. These designated areas were described as "light commercial and office type uses." See Minutes,. Meridian Planning and Zoning, May 11, 1993, page 23. The development plan did not include a regional shopping center. Appeal of P&Z Recommendation C~ • The New Findings seem to imply that the residents had knowledge of and accepted the risk of the commercial uses on the adjoining property. The New Findings state in paragraph 10 on page 4 that: Several residents of the adjoining residential subdivision testified in opposition to the project. Such residents did at all relevant times, however, have knowledge either actual or constructive that the subdivision was developed as part of a planned unit development within a Light Industrial Zone (I-L). Please note that there is a significant difference between knowledge of a planned unit development that allows for "light commercial and office type uses" as part of the development plan and knowledge that a regional shopping center would be built on adjacent property in a manner not consistent with the development plan. Moreover, the development plan is part of a Planned General Development, which is defined as: Planned General Develo ment (PD-G) - A development not otherwise distinguished under Planned Commercial, Industrial, Residential Developments, or in which the proposed use of interior and exterior spaces requires unusual design flexibility to achieve a completely logical and complementary conjunction. of uses and functions. This PD classification applies to essential public services, public or private recreation facilities, institutional uses, community facilities or a PD which includes aAmix of residential, commercial or. industrial uses. Meridian Zoning and Development Ordinance, Section 11-2-403 B (emphasis added). A Planned General Development is a mixture of logical and complementary uses. The CrossRoads subdivision is a low density use. It was presented to City Counsel as approximately two hundred and fifty-six (256) single family residential Lots, with a net density of about 3.3 lots per acre. Minutes, Meridian City Council, June 15, 1993, page 6. Appeal of P&Z Recommendation This low density residential use is similar to the Low Density Residential District (R-4). See generally Meridian Zoning and Development Ordinance, Section 11-2-408 B (3). In contrast, the proposed regional shopping center is very dense. Regional shopping centers have over seven hundred and fifty thousand square feet (750,000 s.f.) and are located on a site greater than seventy-five (75) acres. Meridian Zoning and Development Ordinance, Section 11-2-403 B Regional Shopping~Center (Commercial. The Application's site is slightly less than seventy-five acres, but requests an additional ninety-eight thousand square feet (98;000 s.f.). This makes it thirteen percent (13%) more dense than the normal regional shopping center. Put simply, it is difficult to see how a low density residential subdivision twenty (20) feet away from a regional shopping with greater density than normal can be either logical or complementary. In summary, a regional shopping center was not a part of the development plan. In fact, the development plan was,to have light commercial uses. The residents did not have constructive notice that the owner could build a regional shopping center on the adjacent property. Moreover, it is neither logical nor complementary to build two such extreme uses on adjacent ground. VIII. The Application is not allowed under the Meridian Zoning Ordinances The Meridian Zoning and Development Ordinances do not allow a regional shopping center if it is not a part of a planned development. The Application requests a conditional use permit fora "Multi-tenant Regional Shopping Center." See Application. Under the Meridian Ordinances, a regional shopping center can only be built in a Appeal of P&Z Recommendation 9 ~~ Regional Shopping Center Business District. See the Schedules in Section 11-2-409 B, City of Meridian Zoning and Development Ordinances attached hereto as Exhibit B (underlining' added). The property in the Application is an I-L zone, not a Regional F-.. Shopping Center Business District. Without a planned development, a regional shopping center is not allowed by conditional use permit. IX. The Applicant's request is not consistent with City Policy. The Applicant's request is not consistent with the City Policy. The New Findings state in Paragraphs 16-17 on page 5 that: 16. The uses proposed within the subject application will in fact, constitute a conditional use as determined by City Policy. 17. The proposed uses within the subject application will be harmonious with and in accordance with the Meridian. Comprehensive Plan and the City of Meridian Zoning and Development Ordinance. Section VII of this appeal shows how the Application was not a part of the development. plan and is not consistent with a~ Planned Development: General.., Section; 4 VIII of this appeal shows how the Application is noYallowed under Meridian Ordinances. if it is not a part of the Development Plan. In addition, the Application is not consistent with the Meridian Comprehensive Plan. The Meridian Comprehensive Plan states the following regarding commercial development objectives: Encourage new development which reinforces the City's present development pattern ofhigher-density development within the Old Town area and lower- density development in outlying areas. , .,. Appeal of P&Z Recommendation to +z Meridian Comprehensive Plan, Section 1.4U. This. is the biggest shopping center in Meridian and one of the biggest in the state. It is thirteen percent (13%) more dense than a normal regional shopping center, and the location is not old town but in an outlying area where lower-density development is to be encouraged under the Meridian Comprehensive Plan. Moreover, with regards to residential uses, the Meridian Comprehensive Plan. states the following objectives: Protect and maintain residential property values, improve each neighborhood's physical condition and enhance its quality of life for residents. Meridian Comprehensive Plan, Section 2.3U. The Planning and Zoning hearings during July, August, and September of 1998 provided amply testimony about the adverse impact on property values and quality of life issues posed by a regional shopping center of this intensity. The Applicant has even stated on more than one occasion that this regional shopping center will have an impact on the residents. Minutes, Meridian Planning and Zoning Commission Meeting, September 8, 1998, page 43.' All of this shows that the New Findings are not consistent with the Meridian Comprehensive Plan or the City policy. X. Regional Shopping Center is not permitted even under the flexibility of Section 9-607-E. The New Findings state that: The Planned Unit Development provisions contained within the City of Meridian Subdivision and Development Ordinance, Section 11-9-607 (E) provide flexibility to the Meridian City Council and the Planning and Zoning in approving a conditional use permit within a Planned Unit Development, and more specifically states as follows: Appeal of P&Z Recommendation 11 ~~ • 11-9-607 (E): "A PD shall be allowed only as a conditional use in each district subject to the standards and procedures set forth in this Section. A PD shall be'governed by the regulations of the district or districts in which said PD is located. The approval of the Final Development Plan for a PD may provide for such exceptions from the district regulations governing use, density, area, bulk, parking, signs, and other regulations as may be desirable to achieve the objectives of the proposed PD, provided such exceptions are consistent with the standards and criteria contained in this Section. New Findings, paragraph 7, pages 8-9. Although this is a very powerful section, it is important to understand the general rule that guides the Section and the limitations on any exceptions to that rule. The general rule is to follow the standards of the districts. A regional shopping center is only allowed in a Regional Shopping Center District. See Meridian Zoning and Development Ordinance, Section 11-2-409 B. A Regional Shopping Center Business District is not allowed in a Planned General Development (PD-G). See Meridian Zoning and Development Ordinance, Section 11-2-409 C attached hereto as Exhibit C (please note the marking is my notation). One even questions if a regional shopping center is ever allowed in a Planned Development General. An exception to the general rule may be granted only if it passes all three of the following tests: (1) the exception is part of the Final Development Plan; (2) the exceptions are desirable to achieve the objectives of the Planned Development; (3) the exceptions are consistent with the standards and. criteria of the Planned Development Section. If one of these test fails, the exception cannot be granted. A regional shopping center violates all three tests and should not be granted. First, a regional shopping center was riot part of the development plan. See Section VII Appeal of P&Z Recommendation 12 above. Second, the regional shopping center is not consistent with the development plan's objectives of having "light commercial and office type uses." See Section VII above. Finally, placing a regional shopping center next to aloes-density residential area fails the purposes of a Planned Development as contained in Section 9-607 A. Specifically, it is not consistent with the Comprehensive Plan and does not provide a development pattern which preserves neighborhood development and stability. Moreover, the extreme mix of low density residential directly adjacent to high density commercial does not provide a more convenient pattern of commercial and residential uses. A Neighborhood Convenience Center or perhaps the right kind of Community Shopping Center may be convenient, but not a regional shopping center of this intensity. XI. Other Issues. The Sections above provide sufficient reasons to deny this particular conditional use permit. However, there are several other issues. that you should consider. A. Transfers of conditional use permits require a hearing before City Council. Conditional use permits outside of Old Town require notice and a hearing before City Council. The ordinances state: Non-Old Town -Conditional Use Permits for Land in any other district other than Old Town may be transferred from old owners to new owners or old occupants to new occupants for the same use for which the original conditional use was granted by petitioning the City Council. The City Council shall hold a public hearing on the petition after notice of said hearing having been mailed by certified mail to all property owners within three hundred feet (300') of the external boundaries of the subject land. Appeal of P&Z Recommendation 13 Meridian Zoning and Development Ordinance, Section 11-2-418 J (2). From the Applicant's statements before Planning and Zoning Commission, it appears that the intent of the Application was to transfer the original conditional use permit granted in 1991. See Minutes, Planning and Zoning Commission, July 14, 1998, pages 25-26. However, a hearing before city council was never held on this matter. Moreover, the New Findings do not address the transferability of the conditional use permit. B. Anew conditional use permit for a regional shopping center would not be allowed under the Meridian ordinances. There was some discussion before planning and zoning that this wa"s an application for a new conditional use permit or at least partially new permit. See e.g., Minutes, Planning and Zoning Commission Special Meeting, September 24, 1998, pages 43, 48. Anew conditional use permit raises a lot of new concerns and issues. A Planned m Development currently exists on the property, and change`s to that plan would have a detrimental effect on the adjacent owners who relied on the original plan. Additionally, a new conditional use permit would not be consistent with the Meridian ordinances. If a new conditional permit is being applied for without being part of a planned unit development, such a use would not be allowed in an I-L zone. See Section VIII above. If a new conditional use permit is being applied for as a new Planned General Development, it is not allowed because there is no mixture of uses. See Meridian Zoning and Development Ordinance, Section 11-2-403 B Planned Development General (PD-G). Appeal of P&Z Recommendation 14 i • The reason there is no mixture of uses is because the Application only applies to the property identified in the Application. The property identified in the Application is approximately 74.74 acres and is intended only for commercial uses. The adjacent residential property was not included in the Application, nor did they consent to it. The Application cannot piggyback the nonconsenting, adjacent residential owners to qualify as a mixed use in a new Planned Development General. Moreover, a new Planned General Development was not requested in the Application rather a regional shopping center was requested. The approval of a new Planned. General Development would bring into question the validity of the notices provided to residents. C. A regional shopping center will change the character of the area and disturb existing uses. Several of the New Findings do not accurately reflect the impact of the regional shopping center. The residents provided amply testimony during the. Planning and Zoning public hearings as to concerns about the impact of the proposed center. The Applicant stated on more than one occasion that this shopping center would have an impact on the adjacent property owners. Minutes, Meridian Planning and Zoning Commission Meeting, September 8, 1998, page 43. In contrast, the New Findings state that the proposed uses will not change the intended essential character of the same area, and will not be hazardous or disturbing to existing or future neighboring uses. See New Findings, Paragraphs 19, 20, page 6, Paragraph 8, pages 9-10. Such fmdings are not supported by the record. Although efforts Appeal of P&Z Recommendation 15 ~i ~I. to mitigate the .impact are appreciated, they. do not change the fact that a regional shopping center_will change the character:of the area, be;inconsistent-with the development plan, and disturb the existing neighbors. F XII. Conclusion The bottom line is the Application is not consistent with Meridian ordinances or the planned development approved by Meridian. The New Findings supporting the Application are not consistent with the Meridian ordinances, the Meridian Comprehensive Plan, and do not accurately reflect the impact of the regional shopping center on adjacent residents. Moreover, it is not good policy to put two such extreme uses so close to each other. Ask yourself, would you have allowed a regional shopping center to be approved adjacent to the residential subdivision in 1993 as part of the development plan? If your answer is no, why would you allow it to be approved now? The residential subdivision was approved as part of the development plan in 1993 by the Planning and Zoning Commission and City Council. The regional shopping center was not. My intent in drafting this appeal is not to create conflict, though I realize it may. It is not to criticize the Planning Zoning and Commission, because I truly appreciate their time and efforts. This appeal is intended to achieve a better decision and minimize the adverse impacts on hundreds of residents such as myself. By denying the Application we encourage a better land use policy consistent with the Meridian Comprehensive Plan. The Applicant should be encouraged to present a new proposal that is less intense and more consistent with the city ordinances and the development. Such a proposal, if Appeal of P&Z Recommendation 16 .l J~ • ~~~ `u~ i~ 4- QS ROBERT L. PHILLIPS, ESQ 3437 E. Presidential Drive Meridian, Idaho 83642 Telephone: (208) 884-8158 ~~_ ~ s Pro Se Appellant ~a~.~ ~/lve2er;(~ REcE~D 0 ~ - 4 1998 CITY OF MERIDL41v ~~~ ~ IZ.'16~ BEFORE THE MERIDIAN CITY COUNCIL IN THE MATTER OF THE APPLICATION ) OF HERMES ASSOCIATES AND DAKOTA ) COMPANY, INC., THE APPLICATION FOR ) CONDITIONAL USE PERMIT FORA ) REGIONAL SHOPPING CENTER, SOUTH- ) EAST CORNER OF EAGLE ROAD AND ) FAIRVIEW AVENUE, 74.74 ACRES, PARCEL ) ONE AND PARCEL TWO, TAX PARCEL ) NUMBERS S 1109233945 ANDS 1109212467, ) MERIDIAN, IDAHO ) APPELLANT' S REQUEST FOR WITHDRAWAL AND DISMISSAL OF APPEAL COMES NOW the above named Appellant, Robert L. Phillips, appearing Pro Se, and hereby notifies the Meridian City Council that his Appeal filed October 28, 1998 regarding the October 13, 1998 Findings of Fact and Conclusions of Law and Recommendation to City Council issued by the Meridian Planning and Zoning Commission is hereby withdrawn and requests that o said Meridian City Council immediately dismiss said appeal, with prejudice. DATED this ~day.of November, 1998. ,~~< ~.;, Robert L. Phillips Pro Se Appellant APPELLANT'S REQUEST FOR WITHDRAWAL AND DISMISSAL OF APPEAL -Page I \J ~~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this ~ day of November, 1998, I caused to be served a true and correct copy of the foregoing instrument, by the method indicated below, and addressed to the following: Cumer L. Green GREEN LAW OFFICES 1505 Tyrell Lane P.O. Box 2597 Boise, ID 83701 [ ] First Class Mail, Postage Prepaid [ ~ Hand Delivery [ ] Telecopy ~' ~~~,/ J 2/~ Robert L. Phillips APPELLANT'S REQUEST FOR WITHDRAWAL AND DISMISSAL OF APPEAL -Page 2 ~• ROBERT & MICHELLE PHILLIPS 3437 E. Presidential Drive Meridian, ID 83642 November 4, 1998 VIA Hand Delivery Meridian City Council c/o William Berg, City Clerk 33 E. Idaho Avenue Meridian, Idaho 83642 Dear Council: ~~ct ~e~~>1~~~ REcENED N 0 Y - 4 i99~ CITY OF~M~ER,IDIAN /~v`'~ ~2 ` i~ P~- We hereby formally withdraw the Appeal of the Meridian Planning and Zoning Commission Recommendation that we filed on October 28, 1998. We have had several direct discussions with the Developer and arrived at some compromise solutions that benefit the Developer and the homeowners of the Cross Roads Subdivision. We appreciate your consideration of this matter. Sincerely, '~ ~~ Robert L. Philli s P ~,, Mi el, L. Phillips ~ CC: Larry Durkin (via Hand Delivery) 1 ~, y_~ • Gr~r:LN LAVV O~~IC:FS R0. Box 2597 l~- ¢- Hoist, ldnho 83701-2597 Telephone: (208) 342.891 Tclca~ricr: (208) 342-271R ~~-- S November 3, 1998 Mr, Will Berg, Clerk City of Meridian Meridian, Idaho Re: Appeal of Findings of Fact and Conclusions of Law and Recommendation to City Council in the Matter of the Application of Hermes Associates and Dakota Co., Inc., the Application for Conditional Use Penrnit for a Regioaal Shopping Center, Southeast Corner of Eagle Road and Fairview Avenue, -74.74 Acres, Parcel One and Parcel 'I~vo, Tax Parcel Nos. 51109233945 and 51109212467, Meridian, Idaho. Dear Mr. Berg: REcE~D ~JO~ - '~ 19ag CITY OF MERIDIAN On behalf of Hermes Associates and Dakota Co., Inc., (Applicants), I am in receipt of a copy of the above referenced Appeal. On behalf of my clients, I request that the City Council deny the Appeal on the grounds that it is without merit. If the Council desires to receive additional authority or written or oral argument prior to making its decision in this regard, then we request the opportunity to furnish such. Would you kindly advise in these regards so that we may appropriately respond. G W OFFICES umer een CLCr:df cc: Mr. Larry J, Durkin (via fax) William F. Crigray, Jr. (via fax) NOV 03 '98 1?~13 3422718 PAGE. 02 x~ CERTIFICATE OF MAILING OR DELIVERY I HEREBY CERTIFY That I served a copy of the foregoing instrument upon the following petitioner by mailing a true and correct copy thereof, prepaying the postage thereon, or by having a true and correct copy thereof personally delivered, this 3rd day of November, 1998: Robert L. Phillips, Esq. [ ] First Class Mail - 3437 E. Presidential Drive Postage Prepaid Meridian, ID 83642 [ ] Hand Delivery [ X] Telecopy Cumer ~. Green ' NOV 03 '98 17 13 3422718 PAGE.03 _~_,. . • ~t ' MERIDIAN CITY COUNCIL MEETING: NOVEMBER 4, 1998 APPLICANT: ROBERT L. PHILLIPS ITEM NUMBER: 5 REQUEST: APPEAL OF P ~ Z RECOMMENDATION OF CONDITIONAL USE PERMIT FOR DAKOTA COMPANY INC. AGENCY COMMENTS CITY CLERK: SEE ATTACHED APPEAL CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY: CITY POLICE DEPT: CITY FIRE DEPT: CITY BUILDING DEPT: CITY WATER DEPT: MERIDIAN SCHOOL DISTRICT: MERIDIAN POST OFFICE: ADA COUNTY HIGHWAY DISTRICT: ADA COUNTY STREET NAME COMMITTEE: CENTRAL DISTRICT HEALTH: NAMPA MERIDIAN IRRIGATION: SETTLERS IRRIGATION: IDAHO POWER: US WEST: INTERMOUNTAIN GAS: BUREAU OF RECLAMATION: OTHER: ~ All Materials presented at public meetings shall become property of the City of Meridian. k i ~ REcE~D O C T 2 8 199 Appeal of Meridian CITY OF iV1ERIDIAN Planning and Zoning Commission Recommendation I. Basis for the Appeal This is an appeal of the Findings of Fact and Conclusions of Law and Recommendation to City Council in the Matter of the Application of Hermes Associates and Dakota Company, Inc., the Application for Conditional Use Permit for a Regional Shopping Center ("Application"), South East Corner of Eagle Road and Fairview Avenue, 74.74 Acres, Pazcel One and Parcel Two, Tax Pazcel Numbers 51109233945 and S 1109212467, Meridian, Idaho ("New Findings"). The New Findings are dated October 13, 1998. This appeal is being made consistent with Sections 11-2-418 G and 11-2-416 C7 of the Meridian Zoning and Development Ordinance. Consistent with those sections, this appeal is being properly filed within fifteen (15) days after the Planning and Zoning Recommendation. I am aware that the City Council does not grant a hearing associated with this appeal; and no such hearing is being requested. II. Aggrieved Party My name is Robert Phillips and my address is 3437 Presidential Drive, Meridian, Idaho. I live in the CrossRoads Subdivision and my property abuts the regional shopping Appeal of P&Z Recommendation center proposed in the Application. I attended and testified at several of the public hearings held by the Planning and Zoning Commission. III. ~ Reason for the Appeal. I want the Council to know that I thought about this matter at length before making`this appeal. I understand and appreciate the considerations- given this matter by our Planning and Zoning Commission. The Commission patiently listened to a significant amount of testimony.. Although I appreciate their efforts, the New Findings approved deeply trouble me. The New Findings are not consistent with the City of Meridian's Zoning and Development Ordinances, Subdivision and Development Ordinances, Comprehensive Plan, and the specific development plan approved by the City Council for the property described in the Application. IV. Background The Crossroads Subdivision and.the proposed regional'shopping center aze in a Light Industrial zone (I-L) at or neaz the corner of Eagle•Road and Fairview. Neither commercial nor residential uses are allowed in this zoning. However, such uses may be allowed in an I-L zone through a mixture of uses under a Planned General Development. The Planned General Development is defined as: Planned General Development (PD-G) - A development not otherwise distinguished under Planned Commercial, Industrial, Residential Developments, or in which the proposed use of interior and exterior spaces requires unusual design flexibility to achieve a completely logical and complementary conjunction of uses and functions. This PD classification applies to essential public services, public or private recreation facilities, institutional uses, community facilities or a PD which includes a mix of residential, commercial or industrial uses. Appeal of P&Z Recommendation Meridian Zoning and Development Ordinance, Section 11-2-403 B Planned Development General (PD-Gl. (emphasis added). A Planned General Development requires a conditional use permit, and such a permit was granted in 1991 to GemTone, the owner of the property. See Findings of Fact and Conclusions of Law, approved by Meridian` City Counsel, March 19, 1991 ("Original Findings"). The Original Findings discussed commercial and industrial uses although residential uses could be allowed under a Planned General Development as stated in the Original Findings. See Original Findings, paragraphs 2, 6. In 1993, GemTone and a residential developer proposed a plat as part of the development plan. This plat included residential and commercial uses as depicted in Exhibit A. When asked by the Planning and Zoning Commission why the development plan was now including residential, the following discussion took place: Crookston: What's the reason for the change from the commercial industrial to the residential? Tom Wright, 1412 W. Idaho, Boise, was sworn by the attorney. Wright: I'm part owner of GemTone, the owner of the property. The answer to Mr. Crookston's question is I would say strictly market demand. Crookston: What kind of commercial are you going to endeavor that's not going to interfere with residential living? Wright: We're going to covenant as to color, height, types, landscaping, lighting, hours of operations, etc., in order to protect and in essence enhance the residential. We won't allow major heavy industrial use. I would call it light commercial and office type uses. Minutes, Meridian Planning and Zoning, May 11, 1993, page 23 (emphasis added). Appeal of P&Z Recommendation In front of the City Council, similar representations were made as to restrictions on the commercial use. The residential developer confirmed his understanding of the ~ k ! 5 proposed commercial uses adjacent to the residential development as follows: Yorgason: To address the question of screening between the residential and commercial. Number one, by covenant we will have in the commercial area it will be light commercial and there will be screening on their side as well as a we'll be putting a fence on our side. As the commercial goes in there will be shrubbery that will go between that as well. Minutes, Meridian City Council, June 15, 1993, page 7 (emphasis added). Both the Planning and Zoning Commission and the City Council were told that the types of commercial uses would be "light commercial" uses. In fact, the residential developer told City Council that a significant part of the screening was the "light commercial" use. This was his first response to screening before he mentioned other buffers. After the approval by both the Planning and Zoning Commission and City Council, a single family residential subdivision was built with approximately two hundred and fifty (250) homes. Such homes were built under a development plan stating "light commercial" uses would be built adjacent to the subdivision. Realtors sold homes and made representations to residents about the types of uses that would be next to the subdivision. See e.g., various home owners testimony in the Minutes, Planning and Zoning Commission, August 11, 1998, pages 61-64, 65-66. Given the public hearings in 1993, such representations appear consistent with the development plan and its objectives. Hundreds of people including both homeowners and Realtors have based .~ _ their decisions on the development plan that emphasized light commercial uses. Appeal of P&Z Recommendation 4 • V. What is light commercial? Commercial uses include a variety of things from professional offices to retail uses. The Meridian ordinances contain several different types of commercial zoning districts where various uses are allowed at different levels of intensity. The five most prevalent aze Limited Office District (L-O), Neighborhood Business District (C-N), Corrimunity Business District (C-C), Regional Shopping Center Business District (RSC), and General Retail and Service Commercial (C-G). See generally Meridian Zoning and Development Ordinance, Section 11-2-408 B. Although "light commercial" is not defined in the Meridian ordinances, commercial uses aze allowed in various districts depending on their use and intensity. The ordinances sometimes indicate which uses are more compatible with other uses. For example, the L-O and C-N uses discuss such districts compatibility to residential uses. An L-O is specifically "designed to act as a buffer between other more intense non-residential uses and high density residential uses, and is thus a transitional use." Meridian Zoning and Development Ordinance, Section 11-2-408 (7). Additionally, certain uses are less intrusive and allowed in a variety of districts. For example, professional and sales offices are allowed in all five commercial districts and some high density residential districts. Meridiari'Zoning and Development Ordinance, Section 11-2-409 B. With regards to shopping centers, there are three types: Neighborhood Convenience Center (Commercial); Community Shopping Center (Commercial); and Regional Shopping Appeal of P&Z Recommendation Center (Commercial). The Neighborhood Convenience Center is approximately 30,000 to 200,000 squaze feet. Meridian Zoning and Development Ordinance, Section 11-2-403 B Neighborhood Convenience Center (Commercial). The Community Shopping Center is generally about 100,000 to 400,000 square feet. Meridian Zoning and Development Ordinance, Section 11-2-403 B Community Shopp~g Center (Commerciall. The Regional Shopping Center is over 750,000 square feet. Meridian Zoning and Development Ordinance, Section 11-2-403 B Regional Shopping Center (Commercial). In contrast to lighter commercial uses, a regional shopping center is one of the most intense commercial uses and is the most intense shopping center use. Its location is restricted to the Regional Shopping Center Business District. Meridian Zoning and Development Ordinance, Section 11-2-409 B. Although there could be some debate, over what "light commercial" might mean, there is no way a regional shopping center would ever qualify under any reasonable definition. VI. Planned Developments require a Development Plan. The Planned Development Section of the Meridian Planning and Development Ordinance is a powerful tool. It provides great flexibility to achieve certain objectives. Even modifications to Meridian ordinances aze allowed so long as they meet certain criteria of the Planned Development Section. See Meridian Planning and rt Development Ordinance, Section 11-9-607 E. The essential key to a planned development is a development plan. The developer is required to provide City Council with a rendering of the completed development and Appeal of P&Z Recommendation 6 ~ K' go through the normal subdivision process. See Meridian Planning and Development O~ dinance, Section 11-9-607 D. A Development Plan is defined as: DeveloQment Plan (Preliminary and Final DeveloQment Plans) -All plates, plans and/or submissions by a subdivider or developer in whole or in part describing a development and considered by the Commission and Council. Meridian Zoning and Development-Ordinance, Section 11-2-403 B Development Plan (Preliminary and Final Development Plansl. The completed development plan allows the Planning and Zoning Commission and the City Council to comment on the completed plan. Modifications to zoning ordinances may be allow only if such modifications are part of the Final Development Plan, meet the objectives of the planned development, and comply with other requirements of the Planned Development Section. VII. The Development Plan did not include a Regional Shopping Center. The Original Findings did not describe what types of commercials uses would be on the property. However, a plat for about one hundred and sixty (160} acres on the east ~` side of Eagle Road was submitted to City Council in 1993 as a part of the development plan. See Exhibit A. The plat contained areas designated for commercial uses. These designated areas were described as "light commercial and office type uses." .See Minutes, Meridian Planning and Zoriing, May 11, 1993, page 23. The development plan did not include a regional shopping center. ;. Appeal of P&Z Recommendation 7 k' The New Findings seem to imply that the residents had knowledge of and accepted the risk of the commercial uses on the adjoining property. The New Findings state in paragraph 10 on page 4 that: Several residents of the adjoining residential subdivision testified in opposition to the project. Such residents=did at all relevant times, however, have knowledge either actual or constructive that the subdivision was developed as part of a planned unit development within a Light Industrial Zone (I-L). Please note that there is a significant~difference between knowledge of a planned unit development that allows for "light commercial and office type uses" as part of the development plan and knowledge that a regional shopping center would be built on adjacent property in a manner not consistent with the development plan. Moreover, the development plan is part of a Planned General Development, which is defined as: Planned General Development (PD-G) - A development not otherwise distinguished under Planned Commercial, Industrial, Residential Developments, or in which the proposed use of interior and exterior spaces requires unusual design flexibility to achieve a completely logical and complementary conjunction of uses and functions. This PD classification applies to essential public services, public or private recreation facilities, institutional uses, community facilities or a PD which includes a mix of residential, commercial or industrial uses. Meridian Zoning and Development Ordinance, Section 11-2-403 B (emphasis added). A Planned General Development is a mixture of logical and complementary uses. The CrossRoads subdivision is a low density use. It was presented to City Counsel as approximately two hundred-and fifty-six (256) single family residential lots, with a net density of about 3.3 lots per acre. Minutes, Meridian City Council, June 15, 1993, page 6. Appeal of P&Z Recommendation r t P This low density residential use is similar to the Low Density Residential District (R-4). See generally Meridian Zoning and Development Ordinance, Section 11-2-408 B (3). In contrast, the proposed regional shopping center is very dense. Regional shopping centers have over seven hundred and fifty thousand square feet (750,000 s.f.) and aze located on a site greater than seventy-five (75) acres. Meridian Zoning and Development Ordinance, Section 11-2-403 B Regional Shopping Center (Commercial). The Application's site is slightly less than seventy-five acres, but requests an additional ninety-eight thousand square feet (98,000 s.£). This makes it thirteen percent (13°l0) more dense than the normal regional shopping center. Put simply, it is difficult to see how a low density residential subdivision twenty (20} feet away from a regional shopping with- greater density than normal can be either logical or complementary. In summary, a regional shopping center was not a part of the development plan. In fact, the development plan was to have light commercial uses. The residents did not have constructive notice that the owner could build a regional shopping center on the adjacent property. Moreover, it is neither logical nor complementary to build two such extreme uses on adjacent ground. VIII. The Application is not allowed under the Meridian Zoning Ordinances The Meridian Zoning and Development Ordinances do not allow a regional shopping center if it is not a part of a planned development. The Application requests a conditional use permit fora "Multi-tenant Regional Shopping Center." See Application. Under the Meridian Ordinances, a regional shopping ceriter can only be built in a Appeal of P&Z Recommendation Regional Shopping Center Business District. See the Schedules in Section 11-2-409 B, City of Meridian Zoning and Development Ordinances attached hereto as Exhibit B (underlining added). The property in the Application is an I-L zone, not a Regional Shopping Center,Business District. Without a planned development, a regional shopping center is not allowed by conditional use permit. IX. The Applicant's request is not consistent with City Policy. The Applicant's request is not consistent with the City Policy. The New Findings state in Paragraphs 16-17 on page 5 that: 16. The uses proposed within the subject application will in fact, constitute a conditional use as determined by City Policy. 17. The proposed uses within the subject application will be harmonious with and in accordance with the Meridian Comprehensive Plan and the City of Meridian Zoning and Development Ordinance. Section VII of this appeal shows how the Application was not a part of the development plan and is not consistent with a Planned Development General. Section VIII of this appeal shows how the Application is not allowed under Meridian Ordinances if it is not a part of the Development Plan. In addition, the Application is not consistent' with the Meridian Comprehensive Plan. The Meridian Comprehensive Plan states the following regarding commercial development objectives: Encourage new development which reinforces the City's present development pattern ofhigher-density development within the Old Town area and lower- density development in outlying areas. Appeal of P&Z Recommendation 10 • Meridian Comprehensive Plan, Section 1.4U. This is the biggest shopping center in i Meridian and one of the biggest in the state. It`is thirteen percent (13%) more dense than a normal regional shopping center, and the location is not old town but in an outlying area where lower-density development is to be encouraged under the Meridian Comprehensive Plan. Moreover, with regazds to residential uses, the Meridian Comprehensive Plan states the following objectives: Protect and maintain residential property values, improve each neighborhood's physical condition and enhance its quality of life for residents. Meridian Comprehensive Plan, Section 2.3U. The Planning and Zoning hearings during July, August, and September of 1998 provided amply testimony about the adverse impact on property values and quality of life issues posed by a regional shopping center of this intensity. The Applicant has even stated on more than one occasion that this regional shopping center will have an impact on the residents. Minutes, Meridian Planning and Zoning Commission Meeting, September 8, 1998, page 43: ~, Y All of this shows that the New Findings aze not consistent with the Meridian Comprehensive Plan or the City policy. X. Regional Shopping Center is not permitted even under the flexibility of Section 9-607-E. The New Findings state that: The Planned Unit Development provisions contained within the City of Meridian Subdivision and Development Ordinance, Section 11-9-607 (E) provide flexibility to the Meridian City Council and the Planning and Zoning in approving a conditional use permit within a Planned Unit Development, and more specifically states as follows: k Appeal of P&Z Recommendation 11 11-9-607 (E}: "A PD shall be allowed only as a conditional use in each district subject to the standazds and procedures set forth in this Section. A PD shall be governed by the regulations of the district or districts in which said PD is located. The approval of the Final Development Plan for a PD may provide for such exceptions from the district regulations governing use, density, area, bulk, parking, signs, and other regulations as may be desirable to achieve the objectives of the proposed PD, provided such exceptions are consistent with the standards and criteria contained in this Section. New Findings, pazagraph 7, pages 8-9. P Although this is a very powerful section, it is important to understand the general rule that guides the Section and the limitations on any exceptions to that rule. The general rule is to follow the standazds of the districts. A regional shopping center is only allowed in a Regional Shopping Center District. See Meridian Zoning and Development Ordinance, Section 11-2-409 B. A Regional Shopping Center Business District is not allowed in a Planned General Development (PD-G). See Meridian Zoning and Development Ordinance, Section 11-2-409 C attached hereto as Exhibit C (please note the mazking is my notation). One even questions if a regional shopping center is ever allowed in a Planned Development General. An exception to the general rule may be granted only if it passes all three of the following tests: (1) the exception is part of the Final Development Plan; (2) the exceptions are desirable to achieve the objectives of the Planned Development; (3) the exceptions aze consistent with the standards and criteria of the Planned Development Section. If one of these test fails, the exception cannot be granted. A regional shopping center violates all three tests and should not be granted.. First, a regional shopping center, was not part of the development plan. See Section VII Appeal of P&Z Recommendation 12 • above. Second, the regional shopping center is not consistent with the development plan's objectives of having "light commercial and office type uses." See Section VII above. Finally, placing a regional shopping center next to aloes-density residential azea fails the purposes of a Planned Development as contained in Section 9-607 A. Specifically, it is not consistent with the Comprehensive Plan and does not provide a development pattern which preserves neighborhood development and stability. Moreover, the extreme mix of low density residential directly adjacent to high density commercial does not provide a more convenient pattern of commercial and residential uses. A Neighborhood Convenience Center or perhaps the right kind of Community Shopping Center may be convenient, but not a regional shopping center of this intensity. XI. Other Issues. The Sections above provide sufficient reasons to deny this particulaz conditional use permit. However, there aze several other issues that you should consider. A. Transfers of conditional use permits require a hearing before City Council. Conditional use permits outside of Old Town require notice and a hearing before City Council. The ordinances state: Non-Old Town -Conditional Use Permits for Land in any other district other than Old Town may be transferred from old owners to new owners or old occupants to new occupants for the same use for which the original conditional use was granted by petitioning the City Council. The City Council shall hold a public hearing on the petition after notice of said hearing having been mailed by certified mail to all property owners within three hundred feet (300') of the external boundaries of the subject land. Appeal of P&Z Recommendation 13 Meridian Zoning and Development Ordinance, Section 11-2-418 J (2). `From the Applicant's statements before Planning and Zoning Commission, it appears that the intent of the Application was to transfer the original conditional use permit granted in 1991. See Minutes, Planning and Zoning Commission, July 14, 1998, pages 25-26. However, a hearing before city council was never held on this matter. Moreover, the New Findings do not address the transferability of the conditional use permit. B. Anew conditional use permit for a regional shopping center would not be allowed under the Meridian ordinances. There was some discussion before planning- and zoning that this was an: application for a new conditional use permit or at least partially new permit. See e.g., Minutes, Planning and Zoning Commission Special Meeting, September 24, 1998, pages 43, 48. Anew conditional use permit raises a lot of new concerns and issues. A Planned Development currently exists on the property, and changes to that plan would have a detrimental effect on the adjacent owners who relied'on the original plan. Additionally, a new conditional use permit would not be consistent with the Meridian ordinances. If a new conditional permit is being applied for without being part of a planned unit development, such a use would not be allowed in an I-L zone. See Section VIII above. If a new conditional use permit is being applied for as a new Planned General Development, it is not allowed because there is no mixture of uses. See Meridian Zoning and Development Ordinance, Section 11-2-403 B Planned Development General (PD-G1. Appeal of P&Z Recommendation 14 The reason there is no mixture of uses is because the Application only applies to the property identified in the Application. The property identified in the Application is approximately 74.74 acres and is intended only for commercial uses. The adjacent •.~ residential property was not included in the Application, nor did they consent to it. The Application cannot piggyback the nonconsenting, adjacent residential owners to qualify as a mixed use in a new Planned Development General. Moreover, a new Planned General Development was not requested in the Application rather a regional shopping center was requested. The approval of a new Planned General Development would bring into question the validity of the notices provided to residents. C. A regional shopping center will change the character of the area and disturb existing uses. Several of the New Findings do not accurately reflect the impact of the regional. shopping center. The residents provided amply testimony during the Planning and Zoning public hearings as to concerns about the impact of the proposed center. The Applicant stated on more than one occasion that this shopping center would have an impact on the adjacent property owners. Minutes, Meridian Planning and Zoning Commission Meeting, September 8, 1998, page 43. In contrast, the New Findings state that the proposed uses will not change the" intended essential character of the same azea; and will not be hazardous or disturbing to existing or future neighboring uses. See New Findings, Paragraphs 19, 20, page 6, Paragraph 8, pages 9-10. Such findings are not supported by the record. Although efforts Appeal of P&Z Recommendation 15 r to mitigate the impact are appreciated, they do not change the fact that a regional shopping center will change the character of the area, be inconsistent with the development plan, and disturb the existing neighbors`. XII. Conclusion The bottom line is the Application is not consistent with Meridian ordinances or the planned development approved by Meridian. The New Findings supporting the Application are not consistent with the Meridian ordinances, the Meridian Comprehensive Plan, and do -not accurately reflect the impact of the regional shopping center on adjacent residents. Moreover, it is not good policy to put two such extreme uses so close to each other. Ask yourself, would you have allowed a regional shopping center to be approved adjacent to the residential subdivision in 1993 as part of the development plan? If your answer is no, why would you allow it to be approved now? The residential subdivision was approved as part of the development plan in 1993 by the Planning and Zoning Commission and City Council. The regional shopping center was not. My intent in drafting this appeal is not to create conflict, though I realize it may. It is not to criticize the Planning Zoning and Commission, because I truly appreciate their time and efforts. This appeal is intended to achieve a better decision and minimize the adverse impacts on hundreds of residents such as myself. By denying the Application we encourage a better land use policy consistent with the Meridian Comprehensive Plan. The Applicant should be encouraged to present a new proposal that is less intense and more consistent with the city ordinances and the development. Such a proposal, if Appeal of P&Z Recommendation 16 • planned correctly, may be able to comply with Meridian ordinances, be consistent with the development plan, and be complementary.to the adjacent residents. As I have said before, I would be willing to work with the Applicant in the future to see if we can find common ground and find a better solution. 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H O+ y N ~ ~ ((~~,, C-' ~ ~ ~ a. ~ ` 2 C 'L3 a+ ~ ~ ~ C C v V u "' ^O C C W y C i C pp U o ~ ~'b ~ ~ " rJ C ~ rJ ° ° N Ll.. '-' C ~ ~ ^~ a w -b ~ ~~ o.. o o cn ~ E O ~ • a~ ~ .~ 'b ~ ~ ~•-..c o0 W '-~ 'a, C a v~ Q' ~ ~ W Q N ..D O ~ ~y y a1 0~ ~"' y ~ ~ 3 00 H C [~ ~ -~ c6 ~" ~ ~ td ~ y 6 q ~ ~ ~ U •L ~ ~-n -v oA ~ ~ •y ~ ~ C ~ ~ o 3 ~' cn (~ H ~ ~' o c is p C a . C ~ ~ ~ o V ~, r. .~ ~ ~c .b b _ ~ ~ O Oaa aa aa.u: a:v~v~3 O cn N ~ (~ o ~ o N ~ N -98- • r i r r r r N b c L •~ 'v .. ~ a U n n a V ~, `~ I LJ ~ 1 ~ ~ 2-416 G APPEALS OF ACTION OF COMMISSION. AND COUNCIL 1. Appeals of Action of Commission: Appeals of the action of e`' the Commission concerning the Administration of this -~ Ordinance may be taken by any aggrieved person. All appeals shall be filed with the Council within fifteen (15) days after the action of the Commission and shall specify the grounds upon which the appeal is filed. Upon receipt of an appeal of the action of the Commission, the Council shall __ reach a decision to uphold or overrule the action of the Commission. The Council may uphold the action of the Commission by vote of a simple majority of the entire membership of the Council. The Council may overrule the - action of the Commission by a vote of a majority of the entire membership of the Council. No public hearing shall be held on an appeal to the Council. If the appeal is denied, the applicant may appeal the Council's decision pursuant to 2-416G2. If the appeal is granted, the Council ~ , shall send the matter back to the Commission for further ' consideration and findings in light of the Council _ decision. The matter shall then be processed through the application process'"as if there had been no app eal. • 2. Appeals of Action of Council: Appeals to the action of the Council concerning the administration of this Ordinance may be taken by any aggrieved person. Within thirty (30) days .after notice of the Council action has been given to the applicant pursuant to 2-416I (and after all remedies have been exhausted under this Ordinance), an aggrieved person may seek judicial review of the Council's action under provisions provided by Section 67-5215(b) through (g) and 67-5216, Idaho Code. H STAY OF PROCEEDINGS An appeal stays all proceedings in furtherance of the action taken' unless the Administrator certifies to the Council (after notice of appeal is filed} that by reason of facts stated in the application, a stay would, in his opinion, cause i mminent peril of life and propert y. In such- case, proceedings shall not be -~ stayed other than by a res training order which may be granted by the Council or by a court based upon an application, with notice _. showing due cause. I NOTIFICATION OF APPLICANT within ten ( 10 ) days after a decision has been rendered by the Council, the Administrator shall communicate to the aggrieved ~: applicant of the Council's decision relative to the appeal. J. SUPPLEMENTARY CONDITIONS AND SAFEGUARDS, (APPEALS) ~;; In granting an appeal, the Council may prescribe appropriate conditions and safeguards in conformity with this Ordinance. j.. f• i9s -7 5- _ ~- -_~ w • ~~ x Violation of such conditions and safeguards when made.a part of ' the terms under which the appeal is granted shall be deemed a violation of this Ordinance. K GENERAL STANDARDS APPLICABLE TO ZONING AMENDMENTS The Commission and Council shall review the particular facts and circumstances. of each proposed zoning amendment in terms of the following standards' and shall find adequate evidence answering the following questions about the proposed zoning amendment: 1. Will the -new zoning be harmonious with and in accordance with the Comprehensive Plan and, if not, has there been an applicat-ion for a Comprehensive Plan amendment; _. -••• 2. Is the area included in the zoning amendment intended to be rezoned in the future; 3. Is the area included in the zoning amendment intended to be developed in the fashion that would be allowed under the new zoning - for example, a residential area turning into commercial area by means of conditional use permits; 4. Has there been a change•in the area or adjacent areas which may dictate that the area should be rezoned. For example, have the streets been widened, new railroad access been developed or planned or adjacent area being developed in a fashion similar to the proposed rezone area; 5. Will the proposed uses be designed, constructed, operated and maintained to be harmonious and appropriate in appearance with the existing or•intended character of the } general vicinity and -that such use will not change the essential character of the same area; 6. Will the proposed uses not be hazardous or disturbing to existing or future neighboring uses; 7. Will the area be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, water, sewer or that the person responsible for the establishment of proposed zoning amendment shall be able to provide adequately any of such services; 8. Will not create excessive additional requirements at public ,cost for public facilities and services and will not be detrimental to the economic welfare of the community; 9. will the proposed uses not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors; 193 ~') 6- ITY OF MERIDIAN "Hub of Treasure Valley" " 33 E. Idaho Meridian, Idaho 83642 888-4433 customer's ~o-Zy '-~~'s Order No. Date Name W ~ ~i~ J Address ~¢.> ~ ~' ~r"'2IiGZ~E'.~c`'~' -'~/~/v,~,..-/ (Jj ~33G~Z Phone: ~~^~~5~ SOLD BY CASH C.O.D. CHARGE ON ACCT. MDSE. RETD. PAID OUT ~L I ~~C C~ ~'v CG~_ i ~" I I I i I I I 32.E "` ,pii'claims:and returned goods,MUST a accompanieE by his bdl.~`, I TAX 0 010 3 5 4 ByCe1 TOTAL pa ;°-= GS•202-2 PRINTED IN U.S:A. ~~soi`r K p l I FL~6 ~~ I IN ,• i t r . - r -,,aP'-1" '~ ~.:~ ~II~tPI"~ ~ ~IliUi~s ' ~ ~ . ~It11P11P ~r1 ~f~illi}~s s2-72sa~32a, 3 2 5 9 . :~' z~ ~ e Lord is my strength song and m . ., 3437 1~. ~resi~rnti`ttl fir. ' / ~ " ~ ~~~ y ~ ,~ lA~eri`ditttt, Jib 83&42 , vale ~: •~ 8~4= 5S ' ~,~ ~ .. Pay to the Y , r order of ~~ ~'~~"~ ~ $ ~ O O ~"i ;; :.x: ~~P' C ~~ - '_"_ ..... ~, ' ~` ., s~~ ~~.BOISE TELCO FEDERAL"•;r~' ,'~ t ~ .:r~° ~-' `=-~k ~ ~;~CREDIT UNION~~~' F `~ '~~.T~6~ `~` ~~ ~,: x ,. ~ ~ C~~P:O BOX 190899 BOISE. IDAH03779-0899 ~ r+ tt ~ ~,y o .~ ~~~ - , . ~ °,~ . . ~:324L72r546i: 00005330311 3259 *i t99T TROMAS KINKADE. MEDIA ARTS GROUR. cAN JOSE iNOV-03-98 TUE 06 10 PM CUMERtGREEN FAX N0. 3422718 Gtt~;Ltt~LAVV OrrrricFs _~ - - -- -~ Gut~[:x L. GxLL"N ' ~ l ~ ~ " "~ R0. Boa 2597 ~ ~~-~"""%i Hoisr, id~ho 83701-2517 i Telephone:"(208) 342.8915 ~/_ Tclecoricr: (206) 342-27tR l f-~~ L Mr. Will Berg, Clerk City of Meridian , Meridian, Idaho !November 3, 1998 Re: Appeal of Findings of Fact and Conclusions of Law and Recommendation to City Council in the Matter of the Application of Hermes Associates and Dakota Co., Inc., the Application for Conditional Use Permit for a Regional Shopping Center, Southeast Corner of Eagle Road and Fairview Avenue, 74.74 Acres, Parcel One and Pazce1 Two, Tax Parcel Nos. 5 1 1 0923 3 945 and 5 ~ 109212467, Meridian, Idaho. Deaz Mr. Berg: P, '02/03 ~EcErvED NOV - 4 1998 CITY OF MERIDIAN On behalf of Hermes Associates and Dakota Co., Inc., (Applicants), I am in receipt of a copy of the above referenced Appeal. On behalf of my clients, I request that the City Council deny the Appeal on the grounds that it is without merit. If the Council desires to receive additional authority or written or oral argument prior to malting its decision in this regard, then we request the opportunity to furnish such. Would you kindly advise in these regazds so that we may appropriately respond, G$] W OFFICES umer een - GLCr:df cc: Mr. Larry J, Durkin (via fax) William F. Crigray, Jr. (via fax) NOU 03 '98 17 13 3422718 PAGE.02 NOV-03-98 TUE 06 10 PM CUMER!GREEN FAX N0. 3422718 P, 03/03 i CERTIFICATE OF MAILING OR DELIVERY I HEREBY CERTIFY That I served a copy of the foregoing instrument upon the following petitioner by mailing a true and correct copy thereof, prepaying the postage thereon, or by having a true and correct copy thereof personally delivered, this 3rd day of November, 1998: Robert L. Phillips, Esq. [ ] First Class Mail 3437 E. Presidential Drive Postage Prepaid Meridian, ID 83642 [ ] Hand Delivery [ X] Telecopy Comer ~. Green NOU 03 '98 1?~13 3422?18 PAGE.03 NOV-03-98 TUE 06 10 PM CUMER!GREEN FAX N0. 3422718 P. 01/03 • FAX TRANSMISSION COVER SHEET GREEN LAW OFFICES P.O. Box 2597 Boise, Idaho 83701 Telephone: (208) 342--8915 Fax No. (206) 342-2778 DATE- NO.OF PAGES: ~_ (Inchsing this page) GLOC FILE NO. DELIVER TO: FROIW: PLEASE DELIVER COPIES 70: SUBJECT: MESSAGE: ~?~ ~~n GCS/ ,~ir~A/cGG~+~id/ CONFlDENTiIWTY NOT1Cg: The i~terlals encbsed with Ibis facsimile tiansmisslon are private and conildenuat and trre the property of the sender. The lntormatlon contained in the material le prlvlleged acid is Intended only for the use of the Irdvldual(s) or antiiytiss) warned above. It you are not the Intended redpient, be advised died any urss~iltwrized disclosure, copyln~, dlsMtxrtlon, or the taldr~ at any adbn In reaanca on the contents of thts telecopled lnfonnatJon is as>icUy prohibited. If you have received this facslmlle transrNssbn In erm~, please Immediately notHy us by telephone to arrange for the velum of the forwarded documents m us NOU 03 '98 17 13 f 3422718 PAGE. 01 d ~. t, -- - _` G l~ ~ - ~S RECE~D ~`~-- ~ S N 0 V- 4 1998 CITY OF MERIDIAN ~~~ IZ ~ l6 ~~ ROBERT L. PHII,LIPS, °ESQ. 3437 E. Presidential Drive Meridian, Idaho 83642 Telephone: (208) 884-8158 Pro Se Appellant P .F. BEFORE THE MERIDIAN CITY COUNCIL IN THE MATTER OF THE APPLICATION ) OF HERMES ASSOCIATES AND DAKOTA ) COMPANY, INC., THE APPLICATION FOR ,) CONDITIONAL USE PERMIT FORA ) APPELLANT'S REQUEST REGIONAL SHOPPING CENTER, SOUTH- ) FOR WITHDRAWAL AND EAST CORNER OF EAGLE ROAD AND ) DISMISSAL OF APPEAL FAIRVIEW AVENUE, 74.74 ACRES, PARCEL, ) ONE AND PARCEL TWO, TAX PARCEL ) NUMBERS 51109233945 AND 51109212467, ) MERIDIAN, IDAHO ) COMES NOW the above named Appellant, Robert L. Phillips, appearing Pro Se, and hereby notifies the Meridian City Council that his Appeal filed October 28, 1998 regarding the October 13, 1998 Findings of Fact and Conclusions of Law and Recommendation to City Council issued by the Meridian Planning and Zoning Commission is hereby withdrawn and requests that said Meridian City Council immediately dismiss -said appeal, with prejudice. DATED this ~day.of November, 1998. ti ~ Robert L. Phillips K ~ Pro Se Appellant APPELLANT'S REQUEST FOR WITHDRAWAL AND DISMISSAL OF APPEAL -Page 1 ~; }, = ~ _ .• ~ i t CERTIFICATE OF SERVICE 4 x - ~ I HEREBY CERTIFY that on this ~- day of November, 1998, I caused to be served a true and correct copy of the foregoing instrument, by the method indicated below, and addressed to the following: Cumer L. Green ~ _ [ ] First Class Mail, GREEN LAW OFFICES Postage Prepaid 1505 Tyre11 Lane [ I,~ Hand Delivery P.O. Box 2597 [ ] Telecopy o Boise, ID 83701 J 2 Robert L. Phillips • R a APPELLANT'S REQUEST FOR WITHDRAWAL AND DISMISSAL OF APPEAL -Page 2 ' RECENED. ROBERT & MICHELLE PHILLIPS 3437 E. Presidential Drive Meridian, ID 83642 November 4, 1998 VIA Hand Delivery Meridian City Council c/o William Berg, City Clerk 33 E. Idaho Avenue Meridian, Idaho 83642 Dear Council: N 0 V - 4 1998 CITY OF MERIDIAN ~~~ ~2 ~ ~~ P We hereby formally withdraw the Appeal of the Meridian Planning and Zoning Commission Recommendation that we filed on October 28, 1998. We have had several direct discussions with the Developer and arrived at some compromise solutions that benefit the Developer and the homeowners of the Cross Roads Subdivision. We appreciate your consideration of-this matter. Sincerely, Robert L. Phillips L f Mi elf L. Phillips ,~~ CC: Larry Durkin (via Hand Delivery) 1 I~ - ~, i ~,. -' t' ., ~ a - - ' ~ _ _~ q T «.T,a. ...._. ~...~ ~ e , Y ~ .. _ f Y 'kj f 4 ~ i _f_, R r..».-... ..,.c». .. -. a a ' ~~ n x. ~ ~ ~ Sb. + ~ -~zwm ..z rr. ~. . . 9 ¢ ~ - a _ w _ ~s.p'^ „ „ a ~ rv "+ - A ~ .Y 4 _4-y ~. J ~~- r ~ .. `~'.. _ E _, ., s .4 ~ .~ .. ' ;~ _.. _ _ n ~., n Y W T I I ~ ` S ~ t i+ 4. R ~ s ~, i 5a"~ ,, s , n ~. a .- r. ~ . : +s =. ..v„v :., ss: x. . Nm ., a P. d ,.. ~ r- .w ~' ' tik __ . r n. r ra ~„ 1 Sfax. ~ « f. ~'. ....~ ... _~_- _ .- _ .« .. au~ a- w ,~~ .. _- a+ af.m ... .. ~~___ __._ y vu..p+ ..~~e+.._ a * z>. _._ . .` u. ~ .. ... .~.NA. w . a we.:ae..