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Linda Paddock CUP AMBROSE. FITZGERALD & CROOKSTON Allornays and Counselors P.O. Box 427 Meridian, Idaho 83642 Telephone 8118-«61 8 8 BEFORE THE CITY COUNCIL OF THE CITY OF MERIDIAN LINDA PADDOCK REZONE AND CONDITIONAL USE PERMIT 1717 CRESTMONT DRIVE MERIDIAN, IDAHO FINDINGS OF FACT AND CONCLUSIONS The above entitled matter having come on for public hearing July 3, 1990, at the hour of 7:30 o'clock p.m., the Petitioner appearing through Guy Walker, the City Council of the City of Meridian having duly considered the evidence and the matter makes the following Findings of Fact and Conclusions: FINDINGS OF FACT 1. That a notice of a public hearing on the Rezone Application and the Conditional Use Permit was published for two (2) consecutive weeks prior to the said public hearing scheduled for July 3, 1990, the first publication of which was fifteen (15) days prior to said hearing; that the matter was duly considered at the July 3, 1990, hearing; that the public was given full opportunity to express comments and submit evidence; and that copies of all notices were available to newspaper, radio and television stations; 2. That this property is located within the City of Meridi an and the Appl icant has an agreement to purchase the property which property is described in the application which description is incorporated herein; that the property to the south is zoned C-N and is used for an insurance office and another parcel of property to the south is a vacant lot and is AMBROSE. FITZGERALD & CROOKSTON Attorneys and Counselors P.O. Box 427 Meridian, Idaho 83642 Telephone 888-4461 8 48 zoned C-N; that one parcel of property to the east is zoned C-N and is used as a convenience store; the property to the west is used predominantly for single family dwellings; the property to the north is used for multi-family dwellings. 3. That approximately one-half of the property is already zoned Neighborhood Commercial and one-half is zoned R-4 Residential; that the Applicant requests that the portion zoned R-4 be rezoned to C-N; that both of the zones require a conditional use permit for the operation of a day care center caring for thirteen (13) or more children, which is the use the application requests; that such use requires a conditional use permit in any zone where allowed. 4. That the C-N District is described in the Zoning Ordinance, 11-2-408 B. 2 as follows: (C-N) Neighborhood Business District: The purpose of the (C-N) District is to permit the establishment of small scale convenience business uses which are intended to meet the daily needs of th~ residents of an immediate neighborhood (as defined by the policies of the Meridian Comprehensive Plan); to encourage clustering and strategic siting of such businesses to provide service to the neighborhood and avoid intrusion of such uses into adjoining residential districts. All such districts shall give direct access to transportation arterial or collectors, be connected to the Municipal Water and Sewer systems of the City of Meridian and shall not constitute all or any part of a strip development concept. 5. That the property i s contained in CAIRNS the neighborhood as designated on the Policy Diagram at Page 7 of the Meridian Comprehensive Plan; neighborhoods are defined in the Plan at Page 6 and states as follows: AMBROSE. FITZGERALD & CROOKSTON Attorneys and Counselors P,O. Box 427 Meridian, Idaho 83642 Telephone 8118-4461 8 8 "Definition: The neighborhood is a residential area with uniform characteristics of a size comparable to that usually served by an elementary school or a small business convenience center or a local park. Although neighborhoods occur in various shapes and sizes, a section of the City measuring one-half to one and one-half miles across is usually used for planning purposes. It has facilities within easy walking distances and provides the basis for community identification." 6. That the use proposed by the Applicant is set forth above and the Applicant proposes to care for 45 to 50 children and indicates that she will be state licensed. 7. That the day care use proposed by Applicant is an allowed conditional use in the R-4 or the C-N districts; that the can d i t ion a lu s e pro C e d u res in 11-2-418, requires the Appl icant to state that the proposed use does not violate any subdivision covenants or deed restrictions; that Guy Walker, representative of the Appl icant, stated at the Planning and Zoning hearing that there were no covenants applicable to the property which would prohibit the use but the Applicant did not state in her Application that her use would not violate subdivision covenants or deed restrictions; that the covenants do state as follows: Ilea) Lot 1 of Block I, and Lot 1 of Block 2, and the South 40 feet of Lot 2 of Block 2, are to be zoned IICII Commercial, ...11 (b) All other lots are to be residential or to be used for multiple units by combining several lots or portion of lots, II . . .. , that the Applicant submitted a letter from Jack C. Riddlemoser, Attorney at Law, opinioning that the covenants did not restrict the use of North one-half of the lot for other than the AMBROSE, FITZGERALD & CROOKSTON Attorneys and Counselors P.O. Box 427 Meridian, Idaho 83642 Telephone 8118-«61 8 8 residential purposes. 8. That the subject property is presently vacant but has been used in the past as a shelter home for the elderly and for those in need of supervised care; that the structure on the premises is designed as a single-family dwelling; that the property is fenced; that the property has no irrigation canals or facilities that there are no visible on the property; hazardous areas on the property. g. That at the time of the Planning and Zoning hearing the property did have immediate direct access to a not transportation arterial or collector but was only approximately 110 feet from Cherry Lane which is a principal arterial and the property has good access to Cherry lane; that subsequent to the Planning and Zoning hearing the Applicant obtained the ability to use a lot West of Lot 1, Block 2, Tedi Subdivision, which Applicant now proposes to use for parking of visitors and as a drop-off/pick-up area for children; this new lot has direct access to Cherry Lane which is a major arterial; that vehicular access should not be a problem and the proposed use does not require greater access. 10. That sewer and water is already connected to the property, but the use may require additional charges or fees. Also, City Engineer submitted which are comments the incorporated herein as if set forth in full herein; that the comments specifically address, in addition to the possible increase in water and sewer fees, the need for off-street parking and screening of parking from adjacent the the 8 8 residential developments. 11. That the applicant was not required to obtain the signatures of owners of lots within 300 feet of the subject property showing approval of the application if the rezone is granted since the conditional use would not be a residential district; if the rezone is not granted, but the Applicant still desires to operate the day care center, the Applicant would have to submit the required approvals. 12. That there was testimony submitted in opposition to the application; that a petition was submitted in evidence which objected to the granting of the conditional use for a day care center; that the reasons cited in the petition as grounds for objecting relate to traffic; testimony was also given objecting which objections centered on requesting that the area maintain its peaceful and quiet residential character, concern over adequate parking, and concern over the possibility of increased noise from the day care, all of which may reduce property values. At the Planning and Zoning hearing there was one individual testifying in favor of the Application and he owned the property to the immediate south of the subject parcel which is used for his insurance office. He testified that he did not think that the traffic would be a problem and thought the application should be granted. 13. That the proposed use now includes a drop-off and AMBROSE. FITZGERALD & CROOKSTON pick-up area that would have access directly to Cherry Lane; this area would also be used for visitor parking. Attorneys and Counselors 14. Applicant's representative testified that the parking P.O. Box 427 Meridian, Idaho 83642 Telephone~1 AMBROSE. FITZGERALD & CROOKSTON Attorneys and COunselors P.O- Box 427 Meridian, Idaho 83642 Telephone 8118-«61 8 8 area East of the parcel would only be used for employees and would not be used for child drop-off or pick-up. CONCLUSIONS 1. That all the procedural requirements of the Local Planning Act and of the Ordinances of the City of Meridian have been met including the mailing of notice to owners of property within 300 feet of the external boundaries of the Applicant1s property. 2. That the City of Meridian authority to grant has conditional uses pursuant to 67-6512, Idaho Code, and, pursuant to 11-2-418 of the Revised and Compiled Ordinances of the City of Meridian; and 3. That the City has the authority to take judicial notice of its own ordinances, other governmental statues and ordinances, and of actual conditions existing within the City and state. 4. That the City of Meridian authority to place has conditions on a conditional use permit and the use of the property pursuant to 67-6512, Idaho Code, and pursuant to 11-2- 418(D) of the Revised and Compiled Ordinances of the City of Meridian, Idaho; t hat t he C i t Y a f Mer i d i an has aut h 0 r i t Y to place conditidns upon granting a zoning amendment. 5. That 11- 2 - 418 ( C ) of Revised and Compiled the Ordinances of the City of Meridian sets forth the standards under which the Planning and Zoning Commission and the City Council shall review applications for Conditional Use Permits; 8 8 that upon a review of those requirements and a review of the facts presented and the conditions of the area, the Planning and Zoning Commission concludes as follows: a. The use, would in fact, constitute a conditional use and a conditional use permit would be required by ordinance. b. The use would be harmonious with and in accordance with the Comprehensive Plan but the Zoning Ordinance requires a conditional use permit to allow the use. c. The use is designed and constructed to be harmonious in appearance with the character of the general vicinity. d. That the use would not be hazardous nor should it be disturbing to existing or future neighboring uses; that traffic should not increase significantly because of the proposed day care center, and due to the drop-off and pick-up area having access from Cherry Lane, the residential area North of the parcel should not see an increase in traffic due to this proposed use. e. The property has sewer service already connected. and water f. The use would not create excessive additional requirements at public cost for public facilities and services and the use would not be detrimental to the economic welfare of the community. g. The use would not involve a use, activity, process, material, equipment or conditions of operation that would be detrimental to person, property or the general welfare by reason of excessive production of traffic or noise. Atlomeys and Counselors h. That sufficient parking for the property and the proposed use will be required and the parking layout in the Application will meet the requirements of the City ordinance due to the change in the parking and pick-up and drop-off area. l. The development and uses will not result in the destruction, loss or damage of AMBROSE, FITZGERALD & CROOKSTON P.O. Box 427 Meridian, Idaho 83642 Telephone 886-4461 AMBROSE. FITZGERALD & CROOKSTON Attorneys and Counselors P.O. Box 427 Meridian, Idaho 83642 Telephone 8B8-4461 8 8 a natural importance. scenic major feature of or 6. The conditional require that the use procedures Applicant state that the use does not violate covenants or restrictions; that the Applicant's representative stated at the Planning and Zoning hearing that the use did not violate the covenants; the restrictions set forth in in the covenants paragraph 7 of the Findings of Fact are not clear whether the use would violate the residential restrictions; it is clear that the South 40 feet of the subject parcel may be used commercially under the covenants, but it is not clear whether the rest of the lot may be used commercially; the language does not specifically address the northern portion of the subject parcel or its allowed uses. The language is ambiguous as to whether the north portion of the subject lot is included in the allowed commercial area or whether the north portion is included in the language lIall other lotsll since it is only a part of the lot and the southern part is specifically allowed to be used commercially. It is generally held that where an ambiguity in restrictive covenants exists, that since such covenants impede the free use of land and restrict commerce and trade, that the ambiguity should be resolved in favor of the least restriction. It is therefore concluded that due to the ambiguity regarding the allowed use of the northern portion of the subject parcel that the residential restriction should apply and the not covenants do not barr the proposed use. Such construction is also in line with the opinion of Jack C. Riddlemoser, submitted by the Applicant. It is also concluded that it is in the best AMBROSE, FITZGERALD & CROOKSTON Attorneys and Counselors P.O. Box 427 Meridian. Idaho 83642 Telephone 8118-«61 8 8 interest of the City to have uniformity of zoning for one small parcel of ground and since the property has been used in the past commercially as a shelter home that it is logical to have the entire lot zoned commercial, rather than residential. 7 . That the City has judged this Application for a zoning amendment upon the basis of guidelines contained in Section 11- 2-416 of the Revised and Compiled Ordinances of the City of Meridian and upon the basis of the Local Planning Act of 1975, Title 67 Chapter 65, Idaho Code, the Comprehensive Plan of the City of Meridian, and the record submitted to it and the things of which it can take judicial notice. 8. That 11-2-416 of the Revised and Compiled (K ) Ordinances of the City of Meridian sets forth standards under which the City shall review applications for zoning amendments; t hat u p 0 n are vie W 0 f tho s ere qui rem e n t san d are vie w 0 f the facts presented and conditions of the area, the Planning and Zoning Commission specifically concludes as follows: (a) The new zoning would be harmonious with and in accordance with the Comprehensive Plan and no Comprehensive Plan amendment is required. (b) The area is in the CAIRNS neighborhood which is designed for residential and other uses which support residential needs and a mix of those uses and a rezone of the subject property is in line with that designation, particularly since one-half of the parcel is already commercially zoned. (c) It is difficult to determine whether the area included in the proposed zoning amendment was or was not intended to be developed in the fashion that would be allowed under the new zoning but the fact that the other one-half of the lot is already zoned C-N indicates the new zoning would not be contrary to the allowed uses in the area and would be in line with existing adjacent developments in the area. 8 8 (d) The access to Cherry Lane is good and Cherry Lane meets the requirement of the C-N district that 1 and zoned C-N have access to a collector or an arterial and thus the property lends itself to a rezone. (e) That the property is designed and constructed to be harmonious with the surrounding area. (f) The proposed uses should not be hazardous or disturbing to the existing or future uses of the neighborhood. (g) The property will be able to be adequately served with publ ic faci 1 ities, and connection to municipal sewer and water is completed. (h) The proposed use would not create excessive additional requirements at public cost for public facilities and services and would not be detrimental to the economic welfare of the community. (i) The proposed use should not involve any detrimental activity to any person's property or the general welfare. (j) Development should not cause a significant increase in vehicular traffic and should not interfere with surrounding traffic patterns. (k) That this rezone will not result in the destruction, loss or damage of any natural or scenic feature or major importance. (1) The proposed zoning amendment is in the best interest of City of Meridian. 9. I t i s further concluded that the comments, recommendations and requirements of the City Engineer will have to be met and complied with. AMBROSE. FITZGERALD & CROOKSTON Attorneys and Counselors P.O. Bo. 427 Meridian, Idaho 83642 TelephOne 888-4461 "' AMBROSE, FITZGERALD & CROOKSTON Attorneys and Counsalors P.O. Box 427 Meridian, ldeho 83642 Telephone~1 ~ 8 8 APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS The Meridian City Council hereby adopts and approves these Findings of Fact and Conclusions. ROLL CALL COUNCILMAN RON TOLSMA VOTED ~ VOTED VOTED*- VOTED~ VOTED COUNCILMAN BERT MYERS COUNCILMAN BOB GIESLER COUNCILMAN ~ YERRINGTON GRANT P. KINGSFORD (TIE BREAKER) DECISION The Meridi an City Counci 1 hereby approves the Rezone and the Conditional Use Permit requested by the Applicant for the property described in the application with the conditions set forth in these Findings of Fact and Conclusions of Law and that the be property required to meet the and water sewer requirements, the fire and 1 ife safety codes, and the Uniform Bui lding Code, and other Ordinances of the City of Meridian, including that all parking shall be paved. The areas conditional use should be subject to annual review upon motion by the City, and the conditional use is granted subject the parking area on the east be used solely for employee parking, and that all children, except employee's children, be dropped off and picked up in the parking area south of the subject parcel and which has access on Cherry Lane. The City attorney is directed to prepare an ordinance for the rezone. MOTION: APPROVED: to DISA.PPROVED: