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Howell/Marcum VAR~"~fGfNAL FINDINGS OF FACT AND CONCLUSIONS The above entitled variance request having come on for consideration on December 5, 1995, at approximately 7:30 o'clock p.m. on said date, at the Meridian City Hall, 33 East Idaho Street, Meridian, Idaho, the Applicant appearing through Tracey Persons, and the City Council having heard and taken oral and written testimony, the City Council of the City of Meridian makes the following: FINDINGS OF FACT 1. That notice of the public hearing on the variance was published for two consecutive weeks prior to the scheduled hearing for December 5, 1995, the first publication of which was fifteen (15) days prior to said hearing; that the matter was duly considered at the December 5, 1995, hearing; that copies of all notices were available to newspaper, radio and television stations. 2. That notice of public hearing is required to be sent to property owners within 300 feet of the external boundaries of the land being considered pursuant to 11-2-416 E., 11-2-419 D., and 11- 9-612 B. l.b of the Revised and Compiled Ozdinances of the City of Meridian; that this requirement has been miet. 3. That Ordinance 11-9-605 M., PIPING OF DITCHES, requires all irrigation ditches, laterals or canal, exclusive of natural FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 1 waterways, intersecting, crossing or lying adjacent and contiguous, or which canals, ditches or laterals touch either or both sides of the area being subdivided, shall be covered and enclosed with tiling or other covering equivalent in ability to restrain access to said ditch, lateral or canal. 4. That the project site is approximately 4.21 acres and is zoned I-L; that a conditional use application to allow for the construction of an automobile/recreational vehicle repair shop on approximately 1.49 acres has been submitted before the Planning and Zoning Commission; that the Eight Mile Lateral crosses Franklin Road through a 72" pipe arch, exceeding the 48" standard established by Meridian City. 5. That the Applicant is requesting that it be granted a variance from the above ditch piping requirements and be allowed not to pipe the Eight Mile Lateral; that the Eight Mile Lateral runs along the entire northerly boundary of this site; that previous variance requests allowing canals, ditches, or laterala not to be tiled that required more than a 48" pipe to the have been granted. 6. That the Applicants propose, as a portion of the Conditional Use Permit, to fence the perimeter of the entire site so there will be no safety hazard posed by not tiling lateral. 7. Tracey Persons, the Applicant's representative, testified, stating again what Bill Henson, of the Nampa & Meridian Irrigation District, had made comment to, that the 48 inch existing pipe would not support the water flow at this site; that a 72 inch FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 2 round pipe would support this flow. 8. That the comments received from the Nampa Meridian Irrigation District stated that the Eight Mile Lateral at this location has flows of about 5,000 miners inches of water and that it is doubtful whether this amount of could or would flow through a 48 inch pipe. 9. That Kevin Howell and Dirk Marcum are the owners of the property. of the property. 10. That the Meridian Fire Department, Police Department and Meridian City Water Department submitted comments regarding this application and they are incorporated herein as if set forth herein in full. 11. That no other testimony was heard at the hearing. 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 Applicant's property. 2. That the City has authority to grant variances pursuant to Section 11-2-419 of the Zoning Ordinance and pursuant to Section 11-9-612 of the Development Ordinance. 3. That the City Council has judged this application by the guidelines, standards, criteria, and policies contained in the Subdivision and Development Ordinance upon which it may take FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 3 judicial notice. 4. That the City Council may take judicial notice of its own proceedings, those of the Commission, governmental statutes, ordinances, and policies, and of actual conditions existing within the City and the State. 5. That the following provisions of Section 11-9-605 M, PIPING OF DITCHES, of the Subdivision and Development Ordinance are noted which are pertinent to the Application: "All irrigation ditches, laterals or canals, exclusive of natural waterways, intersecting, crossing or lying adjacent and contiguous, on both sides of the area being subdivided, shall be covered and enclosed with tiling or other covering equivalent in ability to detour access to said ditch, lateral or canal. The City may waive this requirement for covering such ditch, lateral or canal, if it finds that the public purpose requiring such will not be served in the individual case. Any covering program involving the distribution system of .any irrigation district shall have the prior approval of that affected district. ." 6. That the City Council is considering changing the Ordinance regarding the piping of large ditches if the piping would require a pipe larger than 48 inches; that the Ordinance may be changed. 7. That the specific requirements regarding a variance that must be evidenced and found by the City Council are as follows: No variance shall be favorably acted upon by the Council unless there is a finding, as a result of a public hearing, that all of the following exist: a. That there are such special circumstances or conditions affecting the property that the strict application of the provisions of this Ordinance would be clearly impracticable or unreasonable; in such cases, the subdivider shall first state his reasons in writing as to the specific provision or requirement involved; FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 4 b. That strict compliance with the requirements of this Ordinance would result in extraordinary hardship to the subdivider because of unusual topography, the nature or condition of adjacent development, other physical conditions or other conditions that make strict compliance with this Ordinance unreasonable under the circumstances, or that the conditions and requirements of this Ordinance will result in inhibiting the achievement or objectives of this Ordinance. c. That the granting of the specified variance will be detrimental to the public welfare or injurious to other property in the area in which the property is situated; d. That such variance will not violate the provisions of the Idaho code; and e. That such variance will not have the effect of nullifying the interest and purpose of this Ordinance and the Comprehensive Development Plan. 8. That there does appear to be a specific benefit, profit, economic gain or convenience to the Applicant if this variance is granted; however, to require tiling of the ditch would cause extreme hardship to the Applicant, and the Council is considering amending the ditch tiling ordinance so that ditches of this size would not be required to be tiled; the City has previously granted variances where the size of the the would be greater than 48 inches and for the Eight Mile Lateral. 9. That the requirement of tiling ditches is a health and safety requirement; that in a prior variance application it was stated that it may be more hazardous to have the ditch tiled than it would be not to have it tiled and it appears that to require tiling of this ditch would not achieve the safety purpose for which tiling is required in the Ordinance. 10. That the irrigation district affected has not demanded FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 5 that this ditch be tiled. 11. That regarding Section 11-9-612 A. 2., regarding the tiling of ditches, it is specifically concluded as follows: a. That there are special circumstances or conditions affecting the property that the strict application of the provisions of the ditch tiling Ordinance would clearly be unreasonable. b. That strict compliance with the requirements of this ditch tiling Ordinance would result in extraordinary hardship to the Applicant. c. That the granting of a variance would not be detrimental to the public's welfare or possibly injurious to the public. d. That the granting of this variance would not violate the Idaho Code. e. That the variance would not have the effect of altering the interests and purposes of the ditch tiling Ordinance which is included in the Subdivision and Development Ordinance for safety purposes. 12. That it is concluded that the Application for a variance from 11-9-605 M, PIPING OF DITCHES, should be granted. 13. That as a condition of granting the variance, the Applicant shall place, and maintain, landscaping along the Eight Mile Lateral to improve the aesthetics of the property. APPROVAL OF FINDINd3 OF FACT AND CONCLUSIONS The City Council of the City of Meridian does hereby adopts and approves these Findings of Fact and Conclusions. FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 6 ROLL CALL: COUNCILMAN MORROW COUNCILMAN YERRINGTON COUNCILMAN CORRIE COUNCILMAN TOLSMA MAYOR KINGSFORD (TIE BREAKER) ~ ~'. VOTED `/'~ /.~ VOTED ~ /` VOTED `~ r~'~ VOTED VOTED DECISION That it is decided the Application for a variance from 11-9-605 M is granted; that the Applicant shall not ~/~ the Eight Mile Lateral; that the Applicant shall place and construct landscaping along the Eight Mile Lateral as a condition of being granted the xvari~nce. APPROVED: /` ?~ 'r DISAPPROVED: FINDINGS OF FACT AND CONCLUSIONS OF LAW HOWELL/MARCUM - VARIANCE Page 7