Linda Paddock CUP
AMBROSE.
FITZGERALD
& CROOKSTON
Allornays and
Counselors
P.O. Box 427
Meridian, Idaho
83642
Telephone 8118-«61
8
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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
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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:
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Attorneys and
Counselors
P,O. Box 427
Meridian, Idaho
83642
Telephone 8118-4461
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"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
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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
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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
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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
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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;
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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,
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& 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
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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
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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.
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(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
~
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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: