1991 07-09
A G E N D A
MERIDIAN PLANNING & ZONING
JULY 9, 1991
ITEM:
MINUTES OF THE PREVIOUS MEETING HELD JUNE 11, 1991: (APPROVED)
1: PUBLIC HEARING: REQUEST FOR CONDITIONAL USE PERMIT FOR DAY CARE BY TAt+IERA
PERKINS: (FINDINGS TO BE PREPARED)
2: PUBLIC HEARING: REQUEST FOR CONDITIONAL USE PERMIT FOR MULTI-FAMILY DWELLING
BY HEPPER HOMES: (APPROVED)
3: PUBLIC HEARING: PROPOSID AMII4AMENTS TO THE ZONING & DEVII(JPMENT ORDINANCE:
(FINDINGS TO BE PREPARED)
MERIDIAN PLANNING & ZONING JULY 9, 1991
The Regular Meeting of the Meridian Planning & Zoning Commission was called to order
by Chairman Jim Johnson at 7:30 P.M.:
Members Present: Jim Shearer, Moe Alidjani, Charlie Rountree, Tim Hepper:
Others Present: J. Frederick Mack, Mona Dobaran Mack, Karin Hagon & Parents, Layne
Saxton, Ray Fisher, Mary Louise Aguirre, Neal & Inez Hudson, William Berg, Ted Hepper,
Jessie Jackson, Tamera Perkins, Mark Burnham:
MINUTES OF THE PREVIOUS MEETING HELD JUNE 11, 1991:
The Motion was made by Alidjani and seconded by Rountree to approve the Minutes of the
previous meeting held June 11, 1991 as written:
Motion Carried: All Yea:
ITEM #1: PUBLIC HEARING: REQUEST FOR CONDITIONAL USE PERMIT FOR DAY CARE BY TAMERA
PERKINS:
Johnson: I will now open the Public Hearing, is there anyone present who wishes to
testify on this request, if so please come forward and be sworn.
Fred Mack, 1117 S. Owyhee, Boise, was sworn by the attorney.
Mack: I am here tonight representing Tamera Perkins with reference to her applying
for a Conditional Use Permit. Explained that a six foot high fence had been installed
about six months ago. Tamera does.:agree to pay fees involved. Presented an aerial map
of the Fran Meridian Subdivision and a plat map showing where the property is located.
Photographs of Tamera Perkins back yard were also presented. Affidavit and testimony
of Jessie Jackson were entered into the record. Also testimony of Deanna Berry and
affidavit of Trudy Hadley. Excerpts from the Minutes of June 14, 1988, Planning &
Zoning Meeting were read. Read from Sharon Bixby's affidavit, "the data reflects that
parents in Ada County prefer to have their children cared for in the homes of the Day
Care providers located near their own homes and children's schools." With respect
to Meridian's particular circumstances according the the United States Census Bureau
as of 1980, 47~ of the woman in Meridian with children under the age of six were in
the work force. The medium family income in Meridian was 16,472.00, child care connections
calculations based upon this data indicate that 282 children ages 0 to 4 years, and 346
children ages 5 to 9 years living in Meridian needed child care. This number undoubtedly
is larger in 1990, a decade later. She further went on to say that in 1989, 62~ of the
Meridian parents calling child care connections expressed a preference for a home
environment rather than a commercial center. She also indicated the income levels of
the Meridian residents limit the type of care that they can afford. 63~ of those contacting
child care connections in 1989 earned less than $20,000. annually. I think that this
data is very important and there are also graphs that she has set out that really support
that there is a real need within your community to allow this kind of service to be
done. Next I have an affidavit of Loa Kay Brown. She has resided in the City of Meridian
for seven years, both she and her husband work. I think it is important in this
affidavit that we note what she is showing is the quality of care that the applicant has
given. She is very complimentary about how she cared for her children over the last
five years and the quality of care. For example she said we have visited homes of
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #2
women other than Tamera who care for children in their homes and we have also been
dissatified with the quality of the care evidence. They also indicate it is difficult
to find a care provider who will have flexible schedules to allow them to come and
go at later times in the evening, all of which the applicant has been willing to do
for them. So again that shows the willingness and the need of this individual to
act responsibly for the care of these children. Next I have some testimony from a Barbara
Knapp. She has basically had Tamera caring for her daughter for the last five years and
she also is very complimentary about the care that has been provided in this facility.
She has also indicated that her impression of the noise level from the school is quite
loud during recesses and that she has never Noticed any problem with noise from the
applicant's facility. She did make one interesting observation, it says do you have
an impression of how many children are in the neighborhood or in that area? Then it
says by neighborhood, do you mean just around my home or the entire subdivision? Oh I
would think there would be a couple hundred that live in the subdivision. That really
supports that this area has alot of younger children and alot of families that can
benefit from this type of use. Again she has an opinion as to the quality of the care
she has received for her child and she indicated that that was excellent. Finally I've
submitted a decision and order from the District Court, mostly that's for historic
respective and to set forth the standards that the District Court has previously
enounciated. There is one portion of that language which is found on page 153 of the
exhibit thatI've provided you that I think is really pertinent here today and the court
stated there moreover in this case where the court actually listened to the neighbors
and their concerns it is clear that some conditions on the use would be more than
adequately protect the neighbors real interest. The significance of that statement
by the court is the conflict that was previously arisen of whether or not a child care
facility should be established and the objections of various individuals in the community
have already been addressed. We actually have the benefit of history for us here tonight
because that issue has already been presented to a court and this court has indicated
that under the information they had before that the Conditional Use Permit should
be granted. In summary I would submit that based upon the data being provided to you
in wrotten form and the testimony that I have given here today that we have satisfied
all the elements of your Ordinances to qualify for a Conditional Use Permit. I would
request, not knowing what kind of response we are going to get here tonight that I be
allowed to respond after any objections that have been raised concerning this
Conditional Use Permit.
Johnson: In your testimonies that you have presented in the affidavit's you seen to
zero in on one issue, which was noise. There was no comment made regarding traffic.
Mack: Actually I did mention that.
Johnson: You mentioned something about egress but that had nothing to do with testimony
you presented as I recall.
Mack: I think it's all part of the same thing. The issue of traffic is whether or not
the location of the facility is such that traffic would create a burden on the existing
street system in the subdivision. As our map clearly indicates you have at least
two and probably three exit points which would prevent any congestion. I also read you
the affidavit of one of the mother's that indicated that a number of the children walked
to the facility rather than having parents driving. So I would think that in this case
I actually probably have better minimal traffic problems than 2 would have in a normal
circumstance because of the unusual number of points of ingress and egress from the
subdivision which would prevent any traffic problems in the area. Secondly.
•
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #3
C~
Johnson: You say they walk to the facility, but I assume that they still have to be
picked up.
Mack: Well I would say that if they can walk to the facility they can walk home.
Johnson: Not necessarily, if they are walking from school, that was one of the points
I wanted to make. The other thing is, I was referring specifically to the three in the
green, and there was no comment there regarding traffic as I recall.
Mack: The affidavit's do not make reference specifically to the traffic.
Johnson: That was my point. Any questions of the Commission?
Shearer: I presume that there are no real changes in the number of children or anything
else in the facility since it began in 1984.
Mack: There's been no significant changes. My only point on limiting the number was
the issue that was brought up between your Ordinance verses the State statute.
Rountree: You've indicated as Jim said a number of times that this isn't a noisy
situation, is that in fact a perceived problem? They also indicated a disturbance with
the Day Care Center, has that been a problem?
Mack: I guess in some ways I'm anticipating if there's any objections to the hearing.
We have one either advantage or disadvantage depending on how any of us want to look
at it and that is we've already had a courts intervention into the factual basis of
that and the disputes that were arisen were those two and that's why I was enunciating
those up front.
Rountree: You indicated that one of the advantages of this particular group care situation
was the flexibility of the hours and I think you mentioned the availability of later
times, what is the proposed operating schedule?
Mack: Tammy, do you want to respond to that.
Perkins: Currently the operating hours are from eight to six but during school year
they run from six to six.
Mack: His question is do you allow flex time. If a parent needs you to take care of
a child until nine o'clock at night, are you willing to do that?
Perkins: I have done it on occcasion but not very often.
Rountree: It's not standard procedure?
Perkins: No, because of the amount of hours that I am currently working.
Hepper: You said there is another Day Care right next door, at what point of density
would you think that the number of Day Cares would begin to have an impact on the
neighborhood?
Mack: Adversly?
Hepper: Right.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #4
Hepper: You've got another one there and your proposing another one right
beside it, potentially we could have another one right beside that.
Mack: I think it's a question of need for starters and the ability of whether or
not each successive applicant can qualify under the standards that you set under
your Ordinances. Addressing the need issue, we know from the data I've already
given you that there is somewhere between, there is an estimate somewhere between
(in-audible) children that actually live physically on the block where Tamera is
located. We know that and we also have the testimony that within the whole subdivision
we have over two hundred. Since you have limitations of a maximum of twelve I would
submit that there's plenty of need within your system to warrant that. I think the
primary key though is whether or not the individual applicants in the future can
qualify to the requirements that you have already set, and your going to have to look
at those on a one to one basis on whether their individual qualifications are met.
Hepper: As you said, one of the things that might be brought up is the noise and
traffic congestion. If you have twelve kids there and the one next door has
twelve kids, potentially we have twenty four drop offs and pick ups.
Mack: First I do not even think, and this is my perception, but I don't think that
traffic is even close. I think that you for whatever reason the applicant in this case
is fortunate to have the ability to have automobiles come into this subdivision at three
different points set forth on this map. You come in off of Maple Avenue, you can come
in off of Cherry Lane or you can come in on Cherry, so you have all kinds of ingress and
egress points, to have congestion, roads are designed for residential standards and
these roads being designed for residential standards there certainly is nothing
indicating that there is a congestion of cars. Second the limitation on the number
of children that she can have during the day and part of them walking would seem to me
that that isn't even a close call. The noise factor is, your always going to have some
noise, nobody can livein a house and not have any noise. I don't think the standard for
anyone to look at is that noone has the right to say that I get to live in a noise free
environment, because none of us do. What happens if you live on a major street as I
do in Boise. I live on Kootenai, I mean on Kootenai Street I got twelve thousand cars
there a day, I hate it but I don't have any rights to say cars can't go down the street.
So it's not a question of not having noise, the questions is is that noise greater than
what is reasonable,.. and we would say one it is not and secondly the pecular nature of
this neighborhood is such that you have the Elementary School literally a couple hundred
feet away that's got seven hundred children which obviously create a tremendously
greater amount of noise than twelve children in this house. So I don't think that's a
problem.
Johnson: There is a difference in hours though. When those children are there and
when the children are at the Day Care.
Mack: 2'm sorry I don't understand that.
Johnson: Well you talk about noise during the day and noise at night when you are at
home are two different things to most people.
Mack: What the applicant testified to is that on rare occassion to accomodate a parent
she would do that. You have to remember that at that point and time of the day all the
other children have gone home. So her hours are set basically Z assume what your work
hours are and it's only in an unusual circumstances to accomodate a parent who is working
MERIDIAN PLANNING & ZONING • •
JULY 9, 1991
PAGE #5
that she does keep it, that's one child that's not twelve children. One child
isn't going to make an appreciable amount of noise to bother anybody.
Atty Crookston: I'd just like to clarify one issue that I think was raised which
I see as a non-issue and that's the quality issue. I don't think that is an issue
before us, because we don't have a Day Care Licensing. I appreciate the testimony
but I don't think this Commission needs to get into whether she is a good or bad
Day Care Operator, that's outside of the issue. Would you agree with that, quality
is not an issue?
Mack: No I would not Wayne. The reason I would not is I think it goes to the
Comprehensive Plan and the concept behind the Comprehensive Plan that municipalities
should be self contained and be able to provide the quality and the services that
that Community needs to benefit all of the people in your community. My view and the
only reason I'm giving you that is to show that we are fulfilling that concept. No I
will agree with you that I can't go to your eight lists of criteria to say that it
falls directly within one of those, although I think it's collateral.
Crookston: You didn't raise his for the Commission's benefit, in the past there has
been some concern about the drop off facilities, can you explain to the Commission
how that has worked in the past and how it will work in the future, what kinds of
facilities they have for parking, things of that nature.
Mack: Okay Wayne, I'm not sure that I understand what a drop off facility is.
Crookston: Well, do you have an open driveway, do you have a separate entrance, do
you have a fifty foot wide driveway with alot of room for cars?
Mack: What it is is a standard. residential house where you drive into a single
driveway with a garage. In front of the house there is room for three cars to be
parked and the applicant keeps her car in the garage. So if you were coming to drop
off a child you'd have three parking places in front'of the house.
Crookston: Off street or on street?
Mack: On street, curb side parking.
Crookston: How long is her driveway, what I'm looking for is off street parking,
how much off street parking?
Mack: How many cars can her driveway hold?
Crookston• Yes.
Mack: Tammy?
Perkins: I'm sure just one.
Mack: Maybe two if you parked them side by side and the person didn't want to qet out
of the passenger side. I would submit it's a standard driveway within that subdivision.
Rountree: Is there going to be anybody else employed in this operation?
Mack: Just Tammy.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #6
Hepper: It states here on the comments by the City Engineer that reportedly the
applicant has three off street spaces which would meet the requirements of the
City and apparently that's wrong, there's only one off street parking.
Mack: I'm not sure what off street to the City Engineer is. I think you can get
three cars in front of the house and I think you can get one or two in the driveway.
Hepper: I don't know if you've seen this by the City Engineer, it states that
City Ordinances require one space for each vehicle used in the conduct of the Day
Care, for example one space for the owner and one for each staff person. Ideally
one space should also be provided for children drop off and pick up reportedly the
applicant has three off street spaces which meet the requirements if there was only
one staff person.
Mack: I guess to respond to that in this case, she has no staff people. She can
park her car in the garage that would be one I guess, she could although it would
be tight put two cars in her driveway and three on the front, curb side parking.
Johnson: This is a garage used for parking right, when I was over there it didn't
look like that to me.
Mack: She parks her car in it.
Johnson: Any other questions? This is a Public Hearing is there anyone else here
to testify?
Layne Saxton, 1319 W. 7th, Meridian, was sworn by the attorney.
Saxton: I'm here to speak on behalf of my grandparents, Neil & Inez Hudson who
oppose zoning to allow the purchase of a Conditional Use Permit to operate a Day Care
applied for by Tamera Perkins. I have here six copies of petitions to oppose the use
of the Day Care in that area, there are 31 signatures there. The Hudson's built
their home 35 years ago at 232 W. Washington with the intent of retiring in this home.
The Hudson's property is located directly behind Tamera Perkins, it is only 39 feet
from the back of the Hudson's home to the Perkins back yard. The noise from a Day
Care fcan not be avoided. The Perkins home is located right next to the Hadley home
which also has a Day Care. Not only two weeks ago a two year old baby got out of
the Perkin's Day Care and wondered unnoticed to a neighbors house accross the street.
The children are placed in the back yard and are simply not supervised to say the least.
The noise from the two Day Cares is greater than the noise £rom the Elementary School.
Alidjani: These thirty one signatures that you got approximately how close are these
people?
Saxton: They are immediate neighbors.
Rountree: You've indicated a problem with noise is there any particular time of the
day this happens, morning or afternoon?
Saxton: Mainly morning and afternoon.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #7
Rountree: Your grandparents have obviously been there for quite some time, back
in 1989 when we had a hearing for the E3adley care center as my memory serves me,
I don't remember much if any objections to that situation. It seems to me that
there is more here than just what I'm hearing.
Saxton: Just the added noise to the Day Care. It's a total of up to 24 children
at one time between the two places.
Rountree: To your knowledge has there ever been any communication between your
grandparents and Perkin's with regard to this problem.
Saxton: I know that they have tried talking to one another about the noise.
Johnson: Anyone else to testify?
Mary Louise Aguirre, 238 w. Washington, was sworn by the attorney.
Aguirre: I live right behind Tamera Perkins, kitty corner right beside the Hudson's.
I've lived there for nineteen years and I could give you a little history on this in
the sense that yes it has been going on for seven years and as far as I concerned
as representing some other people on our street, we've tried to work with them and
it got to the point we had to work with the police with them. There must be a reason
for Ordinance #430 which states that you are supposed to get 75~ approval from the
neighbors around you. You can't get those people .around there to sign this. There
must be a problem if the majority of the people in that area won't sign the petition.
This whole thing is a family affair and it's costing the tax payers alot of money.
Alidjani: Have you signed this petition that was turned in?
Aguirre: Yes I have.
Rountree: You've indicated you've signed the petition, the petition doesn't say
anything other than opposition. You've addressed noise -
Aguirre: I think there is alot of traffic problem. The noise starts in at in the
morning and continues. Many of us signed in favor of the Hadley Day Care because it
is a well operated Day Care, this is not.
Rountree: Is the noise particularly a problem at any certain time of the day?
Aguirre: Like I say it runs from seven in the morning and continues many times
when the parents work late, like she said until nine at night.
Rountree: Have you observed more than one individual at those late hours?
Aguirre: Yes I have.
Johnson: This petition is not dated, can you tell me when these signatures were obtained?
Aguirre: We ran two petitions, we ran one in January of 1990 and this petition was
started approximately about a month and a half ago.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #8
Johnson: The numbers that they gave regarding the number of children in the immediate
block would you agree with those figures?
Aguirre: Absolutely not, our neighborhood is an old established neighborhood.
There are very few children on our streets. Those numbers are far exagerated.
Johnson: Anyone else to testify?
Bill Berg, 231 W. Washington, was sworn by the attorney.
Berg: I have some questions for the Commission? One, is this a business, is a
business required to get signatures from the neighbors and so forth?
Crookston: The signature requirement was held to be invalid by the court. It is
technically a business but there is no requirement for signatures.
Berg: Does that mean that anybody can start up anything they want in our subdivision?
Johnson: No it doesn't mean that, they still have to have the approval of the City
Council.
Berg: I just don't like something crammed down my throat. Mrs. Hadley came
around and was very nice about it.
Johnson: Anyone else to testify? Is there anyone else that has testified that
would like to add additional statements?
Mack: The unfortunate problem we have here today is we really have some neighbors
pitted against one another and unfortunately for all of us in my view that
occurred because of the litigation that was involved in this. None of us here today
can do anything to get rid of that prejudice unfortunately because it's already
occurred. What I'd like to do is just briefly try to show you that some of the
presentation that you just heard from these complaining witnesses is not accurate.
Number one we had an individual discuss here that the Hudson's view that the fence that
was put up by my client and applicant actually causes an echo effect. What they_are
trying to tell you here today, that the Hudson's are saying is the fence we put up to
help any possible concerns with the neighbors is acutally caused a problem to them.
There was a trial on this issue and not unforceable the three individuals that were
here today we also participants in that trial. Mr. Hudson was cross-examined at that
trial. Let me tell you what Mr. Hudson said about the noise factor. Mr. Hudson you
testified in the last month there hadn't been a problem with the noise from the children,
has anything happened in the last month with respect to your yard and the defendents?
Answer - I put a six foot fence, a cedar fence in in the last month. Since the fence
was put up have you had any problem with trespassing? No. So what he said under oath
gentlemen is the fence mitigated noise, so if there was any noise that noise was mitigated.
This man testified under oath.
Johnson: Excuse me, I didn't hear you mention noise, I heard you mention trespass.
Mack: Okay, I'll read it again for you Mr. Johnson. Mr. Hudson you testified in the
last month there hadn't been a problem with the noise from the children. Had anything
happened in the last month with respect to your yard and the defendents? I put up a
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #9
six foot fence, a cedar fence in the last month.
Johnson: What was the next sentence?
Crookston: That is a little problem, whose the "I"?
Mack: Well he, yes when it was transcribed obviously he was referring to my client
that did it. It's misleading, the important point here is he testified under oath he
testified the fence cured the problem. Now -
Johnson: I don't understand it. What was the next sentence?
Mack: The next sentence is, since the fence was put up have you had any problems with
trespassing? No. Number one I want this in the record, number two I'm referring to
page 106 of the transcript of the trial and I would request that it be deemed part of
the record. Secondly, it's infortunate that we have to get to this but I think it's
important that you gentlemen understand that with this neighbors being pitted against
one another you've got to make a decision of who is telling the truth and who isn't.
What I'm telling you is this person testified under oath contrary to what you just heard
and that's inappropriate. Secondly you had heard testimony from Mary Louise Navarro,
basically she is making comments that my client is not a well run operation and secondly
there is noise and disturbing activity because of this Day Care Center. Number one
it appears to me that she doesn't live on the Street so there wouldn't be any traffic
problems that she indicated because she doesn't live on the street. Two I would like
the record to reflect that all of the affidavit's that I have submitted to you gentlemen
that I read to you tonight are people who live on my clients street and made no observations
of problems with traffic. Thirdly at the trial she basically made the same kind of
representations that she made here to you today. So we are talking again a court proceedings
where we are talking the same issues here today and at that point there was testimony
given by Mary Ann Hart who was a prior employer of this individual, and the answer to
that was during, and what it shows is whether or not you should believe the creditability
of this individual. The testimony was as follows: "During the period of times that
she worked for you were you able to form an opinion as to whether or not she is a truthful
individual? Answer - Yes. What is that opinion? I don't believe she is truthful.
Given that opinion would you believe Ms. Aguirre Navarro under oath? No. So what we
have here is court sworn testimony that this individual does not tend to tell the truth.
Secondly I would like to submit to you that the decision that you have in the file that
I have previously submitted to you also talks about the issue of the testimony by Mrs.
Navarro. Here's what the court said on page 153 and you have that opinion before you.
The court said, "the unusual and peculiar responses that Ms. Navarro cast considerable
doubt upon the reasonableness of her objections." So what do we have here? We have
one advantage and that is we have the advantage of insight, we've had a trial on this
issue and we have the court making a decision addressing the specific individual. So
I would submit to you that the comments by Mary Louise Navarro are not creditable and
should not be relied upon. In support of that for record purposes, I would like to
augment the record with the testimony of Mary Ann Hart that I just previously testified
to. Gentlemen what we really have got to get here today is has my client complied with
the statutory requirements of your Ordinance. I would submit to you that the answer
to that is yes. I've seen nothing before you this evening that tells me that she has
done anything but comply with your requirements. I do not believe the noise issue is
a factor and that has also been ajudicated or at least stated for by a court in a previous
action on this. I believe that it is unfortunate that the people that have testified
here today have personal animosity but the issue before you is has nR' client complied
with the requirements. This is not a popularity contest, my client is not here to say
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #10
I got fifteen people who want to have a Day Care Center and I got twenty who don't.
That is not the standard that we have to meet or that this group should rule from.
We're not talking popularity, we're talking has my client complied with the rules and
regulations of your Ordinance and I would submit that she has and I would request that
you grant her a Conditional Use Permit.
Alidjani: Is this true that your client is having business hours from 6:00 A.M. to
6:00 P.M., is that correct?
Mack: Six to six, yes.
Alidjani: And is it true that you told us that your client does not have a helper during
those hours?
Mack: She does not have a full time staff person or employee, no she does not.
Alidjani: So, is it alright if I say that it is impossible for a person working twelve
hours without eating, freshing up and do other things in twelve hours without help.
So there is going to be somebody helping her within that twelve hours, is that correct?
Mack: She's in her own home so if she has to use the facilities or if she wants to
eat she can eat during the same time the children are eating. I think she can operate
her facility on an individual basis while she's there. The advantage she has is she's
in her own home, now if she was in an office building or something and had to do this
your right, she'd have to go down the hall or whatever. She lives in her house and
she operates out of it.
Alidjani: At the time that she is in the wash room washing her hands who is taking
care of the children?
Mack: Technically she is. Hopefully she's got them in the living room or the back
yard so they are taken care of.
Alidjani: See the point I'm bringing up. There has got to be somebody else in that
facility to take care of the children at the twelve hour basis. There has got to be
two people there.
Mack: I disagree with that. I think your asking are the children unattended whey-
she goes to use the facilities, the answer would be she has the duty to make sure that
they were properly supervised while she goes and uses the facilities. The issue of
quality which I think is what your getting at sir is if the quality is appropriate as
a State licensing question and not a land use question then we are here before this
group - -
Alidjani: My question was, you said there's no other full time help or part time help
or any kind.
Mack: There's not.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #11
Johnson: We have thirty one signatures within close proximity of the residence, how
do you account for that number being opposed other than a popularity contest?
Mack: You mean in this particular case?
Johnson: Well yes, that's the case we are talking about.
Mack: I think the problem Mr. Johnson that has arisen has been that this case has polarized
people in this community. The reason it is polarized is because it went to litigation,
now that's unfortunate, none of us wanted that.
Johnson: There was a petition opposing it prior to litigation.
Mack: If there was I don't have any personal knowledge of that. I don't think it's
relevant. I don't think you can - -
Johnson: It's relevant to me.
Mack: Well it shouldn't.
Johnson: This isn't a court. That's why I asked the question because it's relevant
to me.
Mack: My answer to that is there are people who are opposed to what she is doing because
they have either been influenced by other individuals or they don't like what is going
on there. My real answer to your questions is from a Council view or from a Commission
view is that it isn't relevant. We don't look to make decision for land use based on
popularity.
Johnson: Well I tend to differ with that. History shows we have made alot of decisions
based on public objection.
Mack: I would defer to your legal counsel for whatever advise he wants to give you
concerning that. I'm saying that I don't think that is a proper standard.
Crookston: Mr. Rountree asked if the numbers would be different. What has happened
in the past, she has had up to thirteen, fifteen kids throughout the day. Now if your
meeting our ordinance there will only be twelve so wouldn't there be a lessing of impact
because of the number of kids? Do you see what I'm getting at?
Mack: No I don't.
Crookston: It would appear to me that there would be less impact the fewer number of
kids. If you meet our ordinance then she will be allowed fewer kids than I understood
she has taken care of in the past.
Mack: The information that I have and what 2 testified to is that she has up to twelve
a day, which complies with your standards. I believe this is compliance with your rules
and regulations in your ordinance which she is willing to do. I don't have any personal
knowledge that she had more than twelve. I'm saying that she will only have up to twelve.
Crookston: I appreciate that.
MERIDIAN PLANNING & ZONING • •
JULY 9, 1991
PAGE #12
Johnson: Anyone else from the public who would like to respond?
Aguirre: I'd like to speak on behalf of myself and Mr. Hudson. I think fast Freddy
was a little inaccurate in terms of things around so to clarify those in that Hudson
testified and knows the answers to that question but not to mislead you the board as
you can tell from Layne's testimony and my testimony the fence has caused a greater
problem for us. As far as whatever Mrs. Hart or whoever, I was on a management board
and I wrote her up and if there is vindictiveness and she is a personal friend of these
people that's her perogative to say what she says. There must be a reason that she
can't get 75~ so we'll let the numbers speak for themselves.
Mona Mack, 1117 S. Owyhee, Boise, was sworn by the attorney.
Mack: I'd like to offer some points just as clarification. I've been in a position
where I've been involved in this matter at least since 1988 so I have some particular
insight that perhaps Mr. Mack is lacking. Starting backwards perhaps with respect to
Mr. Crookston's question regarding compliance with the ordinance and whether or not
that will serve to minimize the impact of the operation upon the neighbors. It is true
that in the past prior to being made aware of the City's interpretations of it's laws
that the defendant, that the applicant Ms. Perkins calculated on the number of children
per the state requirement. Because some children were not there during the entire day
she would acutally have more than the twelve children throughout the day on her property,
although not more than twelve at any one time. Since she will now be having only twelve
children throughout the day upon her property that should lessen the impact. Also just
by point of clarification, although the application is for a group child care home in
reality Ms. Perkins usually has far fewer than twelve children on her property at any
one time. Often there are only three or four children, especially during the school
days when some of the children that she cares for are in school and she only keeps them
in the late afternoon hours until the parents return home from work. Let me also clarify
this flex time reference that was made earlier in one of the affidavits. When that
parent was talking about flex time and I think she acutally referred to the flexible
schedule of Ms. Perkins what she was eluding to was the willingness of Ms. Perkins
to take children for only part of a day. Many operators because of economic considerations
unless they have the child on the premises for a full eight hours won't even agree to
care for a child. Mr. Perkins has again been willing to care for them only if it's
for three or four hours in the afternoon. Frankly because of the restrictions on the
number of children throughout a day that may not be something that occurs in the future.
I'd like to refer to some of the testimony that was presented during the trial. Although
the issue is really not that court proceeding related to certain ordinance provisions
there was a full array of testimony presented by both sides with respect to the impact
of this impact on the neighbors. I would testify under oath having listened to Mr.
Hudson's testimony that although the excerpt that was read is not entirely clear that
it was at least my understanding during that court proceeding that what Mr. Hudson was
testifying to was that there was a lesser impact upon his property after that fence
was put up, and needless to say that was the entire purpose of putting up the fence
was to attempt to accommodate the neighbors. During that proceeding Ms. Aguirre testified
to a number of things. Things that we haven't heard about fortunately in this proceedings,
but I'm going to elude to them because again I think it again may help you access the
creditability of what's going on here. There were accusations made about the children
smoking in addition to the accusations of thievery which she has eluded to. The testimony
at one point became quite bazaar. She testified that the children were throwing vegetables
over the fence and that one of the problems created by this day care operation were
that stray animals would prowl at night to consume this food. It`s that sort of testimony
U
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #13
that the court is eluding to when she indicated that there was some peculiar responses
that made her question the reasonableness of this particular neighbors objections.
I would also note that in response to one of Ms. Aguirre's complaints regarding noise
that the City has sent an officer to the sight. Officer Musser testified in court upon
the time of the response in response to that particular complaint arriving at the scene
there were children out in the back yard playing but there was not any undue or excessive
noise that those children were creating. Also with respect to the reasonableness of
the neighbors complaints. Mr. Crookston has followed up I think quite deligently when
the Hudson's have complained to him. In one particular instance after they had contacted
Mr. Crookston, he contacted me and I contacted Ms. Perkins regarding allegedly excessive
noise from the children in her home. On that particular day that particular time
nobody was at home. The children weren't there nor was Ms. Perkins. They were at a
completly different home in Ada County. This was something that was substantiated,
they had appointments that day and so the children been kept at her parents home. Part
of the problem that has arisen is with respect to these noise complaints in many instances
it hasn't been clear where the noise has been coming from. Again there are children
throughout this neighborhood and they are all making noise and it's not always even
certain when the children in the homes next doors are playing or even accross the street
whose children they are in some instances. Lastly I want to comment upon the petition
and the Hadley Conditional Use Permit. In response to Truman Johnsons question when
he was searching for reasons as to why some of these neighbors would have signed this
petition. If you look at the question that's posed, the petition that they are signing
is whether or not they would agree or think it is agreeable to have another day care
when there is already one in existence. Given the way that question is phrased I think
any number of individuals are going to sign it and say no we've already got one why
would we want another one. I don't think that that has any bearing in terms of a number
of the criteria with respect to whether or not this is an appropriate use on that property.
I would also note that Ms. Hadley principly if not exclusively cares for infants in
her home. We don't have a duplication of services being provided in that she doesn't
traditionally care for older children although her conditional use permit does not preclude
her from doing so. I believe that when Ms. Hadley's application was circulated that
was the (in-audible) that was made in terms of securing some of those necessary consent
signatures. Mr. Crookston can correct me if I am misrepresenting what my understanding
was but I had been under the impression that Ms. Aguirre contacted Mr. Crookston to
inquire specifically if Ms. Hadley's conditional use permit was granted whether or not
Ms. Perkins would be allowed to have one. So part of what's going on in terms of this
conditional use permit process and Ms. Hadley having secured one before Ms. Perkins
I believe was a deliberate attempt orchestrated by Ms. Aguirre and perhaps in conjunction
with Mrs. Hudson to preclude Ms. Perkins from obtaining a conditional use permit. Because
of the requirement at that time and those neighbors we deemed after the City Clerk had
prepared a list of neighbors whose consent had to be obtained at the outside it appeared
quite impossible for Ms. Perkins to obtain the necessary consent because among those
who's consent's were necessary were Ms. Aguirre's and Mrs. Hudson's. I do not think
in any way that this applicant should be penalized because of her inability to comply
with that ordinance requirement to get a conditional use permit application in and considered
at the same time while Ms. Hadley's was under consideration. Those were the rebuttal
remarks that I wished to make and would answer any questions.
Johnson: In your opinion do the residents of a neighborhood have any say or feel or
concern or do they have any right to be concerned about what takes place in their neighborhood
with respect to increased traffic, with respect to noise?
Mack: Of course. We ourselves, our neighbors are going to be concerned about what
happens in our neighborhood. Our expressions of concern should be and need to be voiced
PLANNING & ZONING MEETING
JULY 9, 1991
PAGE #14
and there should be a quorum in which to voice them,
is my opinion with respect to voicing those concerns.
you my legal thought in terms of what you -
all of that is appropriate. That
I'd like to go further and give
Johnson: I didn't ask for that, I just wanted a personal opinion.
Mack: I would like to say then in clarifying that remark and that is that when those
expressions of concern are expressed you have the difficult task of determining whether
or not they are reasonable. I'm going to echo what was said earlier, to the extent
of those expressions of concern determine whether or not, and it becomes simply a popular
vote. Determine whether or not a conditional use permit is granted or denied, that's
increditably inappropriate and wrong. Because what you are talking about is land use
and this body is a judicial body. Your sitting as a court in essence when you consider
this application.
Crookston: I'd like to hear the legal opinion.
Mack: Mr. Crookston with respect to the input that neighbors have and how it's to be
considered, the decision that was rendered in City of Meridian vs. Perkins really is
very much on point. What the judge says in that decision and it's echoed throughout
numerous Supreme decisions in Idaho is that the neighbors are definitely entitled to
input but you can not take that input and have essentially those neighbors determine
for you whether or not a permit or any other zoning application should or should not
issue or be granted. You can not put these matters up to a popular vote because there
are always going to be other considerations beyond what is appropriate for the community,
what your community needs, the appropriateness of the use in that area and those are
the sorts of things you need to be looking at. When you put something up to a popular
vote in terms of circulating a petition and granting or denying a use of property based
upon that petition you take away property rights. If I went to every individual on
that petition and approached them on this conditional use permit and sat down and talked
with them about it and asked them to take their names off that petition for me personally
or maybe even gave them money I could change that petition dramatically. That's the
problem with petitions. In section 418 when you list those points as you prepare in
your findings of fact and conclusions of law as you did for Trudy Hadley. When you
list those points and consider whether or not this is an appropriate use looking at
those nine different factors, that's what your decision is all about. It's not whether or
not somebody next door wants it. If you look at this petition now it's no different
than what was just struck down as being void before.
Crookston: I do one other question that related to your initial remarks. How long
has Tammy been down to the not more than twelve throughout the day?
Mack: I would have to refer that to Tammy.
Perkins: It's been that way from the very beginning. There were more children listed
on the roll sheets, but all that means is that they can walk in the door because they
are enrolled. They may only come one day a month:-
Mack: I think that those food sheets that were prepared, I don't know if you went into
those in any detail at all - -
Crookston: I did but it seems like I recall some testimony when we went through the
amendment to the zoning ordinance to begin with that there was seventeen children.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #15
Mack: The confusion there was that, there were never seventeen children on her property
throughout the day. With that number related when she had a roster of children that she
would care for sometimes on different days. It was never a throughout the day number,
it was simply a number of children on what she called an enrollment at different
times throughout the week.
Crookston: With that understanding how long have we been dealing with twelve throughout
any one day?
Mack: I think that since the school year has ended she has only five or six, but
even prior to that throughout the course of the court proceeding she only had twelve.
Johnson: Anyone else from the public?
Saxton: I was sworn in before and what I said was not purgering myself, I told the truth
to the best of my knowledge. I personally work for the Meridian School District which
is in my opinion maybe the second largest day care in the State of Idaho. What we
are saying is the ccmmunity may'need another day care but not at this facility. As far
as what Mary Navarro says I support everything she has said here tonight.
Johnson: Any other comments?
Aguirre-Navarro: I would just like to clarify a few inaccuracies and one that there
is no children, she's supposed to have twelve children on licensing. We want to show
you a video we got it, there's more on the property than that at the same time. So
we offer that at proof, we also offer when the Idaho Statesman came to take a picture
of you, did you not take three children off your property so you would not be over
the number?
Johnson: You have to be talking to us.
Aguirre-Navarro: She said Hadley does not have older children, that's an inaccurate
statement also. She does have older children, she's a day care and she has them from
very young to older. She's saying the testimony of a police officer, she forgot to
tell you this is a guy testifying for her, how about all the other police officers that
had to come down there?
Johnson: Thank you all for all your testimony. I'm going to close the Public Hearing
now.
The Motion was made by Shearer and seconded by Hepper to have the attorney prepare
the Findings of Fact and Conclusions of Law for the Perkins application.
Motion Carried: All Yea:
There was no recommendation to pass on to the City Council at this time.
ITEM #2: PUBLIC HEARING: REQUEST FOR CONDITIONAL USE PERMIT FOR MULTI-FAMILY
DWELLING BY HEPPER HOMES:
Hepper: Mr. Chairman, at this time I'd like to step down due to a conflict of interest.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #16
Johnson: I will now open the Public Hearing, is there anyone who would like to
testify?
Ted Hepper, 1440 E. Ustick, was sworn by the attorney.
Hepper: We would like to have a conditional use permit for a three unit townhouse on
a piece of property on King Street west of E. 1st. It's a three unit townhouse with
a two car garage for each unit.. We'd like to ask for a variance from the ACHD
requirement.
Alidjani: Could you educate me as to what you mean when you say townhouse?
Hepper: A townhouse is a individual living quarters. They are a single family
dwelling and there is a two hour fire wall in between each unit but they are
connected.
Alidjani: Are they two story or one?
Hepper: We are planning on one story.
Rountree: You've indicated you want a variance for the 16' pavement of the alley and
also a variance on any improvement on King Street, in that regard would you be
willing to contribute to ACHD's fund for future improvements on that particular street
at such time they come in with an improvement situation or improvement district?
Hepper: Yes we'd be willing to at the time but right now it goes no place and ends
no place.
Shearer: What's Meridian Street got, are they turning the corner with the new plan?
Clerk Niemann: Yes.
Discussion Held. (Tape on File)
Shearer: How wide is that lot?
Hepper: 90x140.
Rountree: You've read the City Engineer's comments and you don't have a problem
with them?
Hepper: No problem.
Johnson: Anyone else from the public to testify?
Joan Hagon, 38 E. Ada, was sworn by the attorney.
Hagon: I represent my daughter and my father who both own property on Ada Street.
I have no objections to what your doing or anything but I want to know my daughter
or my father could do the same thing?
Clerk Niemann: If they want to file an application.
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #17
Hagon: Is this a whole zoning change?
Clerk Niemann: No, this is just for this specific piece of property.
Hagon: This complex will upgrade the neighborhood.
Johnson: Anyone else to testify?
Mark Burnham, 42 E. King, was sworn by the attorney.
Burnham: I hope the members of the Conunission will grant the variance to Mr. Hepper.
We aren't going to stand in the way of progress at all. Our only request is that
Mr. Hepper save all of those trees. I think this project will really be an asset
to our community.
Johnson: Anyone else to testify? Hearing no response I will close the Public Hearing.
The Motion was made by Rountree and seconded by Alidjani to amend the Findings of
Facts and Conclusions of Law to allow the variance for not paving the alley and not
doing the street curb, gutter and sidewalk improvements as indicated by ACRD requirements.
Roll Call Vote: Alidjani - Yea; Shearer - Yea; Shearer - Yea; Rountree - Yea:
Motion Carried: All Yea:
The Motion was made by Rountree and seconded by Shearer that the Meridian Planning
and Zoning Commission recommends to the City Council that they approve the Conditional
Use Permit for Multi-Family Dwelling by Hepper Homes.
Motion Carried: All Yea:
ITEM #3: PUBLIC HEARING: PROPOSED AMENDMENTS TO THE ZONING & DEVELOPMENT ORDINANCE:
Johnson: I will now open the Public Hearing, is there anyone present to testify?
Hearing no response I will close the Public Hearing.
Discussion Held: (TAPE ON FILE)
The Motion was made by Rountree and seconded by Alidjani to have the Findings of Fact
and Conclusions of Law prepared.
Motion Carried: All Yea:
The Motion was made by Shearer and seconded by Rountree to adjourn at 9:20 P.M.:
Motion Carried: All Yea:
(TAPE ON FILE OF THESE PROCEEDINGS)
MERIDIAN PLANNING & ZONING
JULY 9, 1991
PAGE #18
APPROVID:
~,
JIM JO SON, .CHAIRMAN
ATTEST:
pc: Mayor & Council, P & Z Members,
Atty., Eng., Bldg., Police,
Gass, Stuart, Ward, Fire,
ACHD, CDH, NMID, Settlers,
Statesman, Valley News
Mail (3)
File (3)
~''
BEFORE THE MERIDIAN PLANNING AND ZONING COMMISSION
HEPPER HOMES, INC
CONDITIONAL USE PERMIT
LOTS 20, 21, AND 22, BLOCK 1
BOWER'S ADDITION TO MERIDIAN
MERIDIAN, IDAHO
PRELIMINARY
FINDINGS OF FACT AND CONCLUSIONS
The above entitled matter having come on for public hearing
July 9, 1991, at the hour of 7:30 o'clock p.m., the Petitioner
appearing in person, the Planning and Zoning Commission 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 Conditional
AMBROSE,
FITZG ERALD
B CROOKSTON
Attorneys ena
COUnMlora
P.O. Box e3T
Mer101en, Idaho
ese.s
Telephone 888~~81
Use Permit was published for two (2) consecutive weeks prior to
the said public hearing scheduled for July 9, 1991, the first
publication of which was fifteen (15) days prior to said hearing;
that the matter was duly considered at the July 9, 1991, 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
Meridian and is owned by Clareta V. Smith and Shannon Smith and
the Applicant has an agreement to purchase said property which is
described in the application which description is incorporated
i~~ • ~
herein.
3. That the property is zoned Old Town (OT), which requires
a conditional use permit for the construction, placement and
operation of R-15 Multi-family residential dwelling units which
the application requests; that in Old Town conditional uses are
generally required for any use where the property was not
previously used for that purpose.
4. That the 0-T District is described in the Zoning
Ordinance, 11-2-408 B. 10 as follows:
(0-T) OLD TOWN DISTRICT: The purpose of the
~0-Tj ~6istrict~is toto accommodate and
encourage further expansion of the historical
core of the community; to delineate a
centralized activity center and to encourage
its renewal, revitalization and growth as the
public, quasi-public, cultural, financial and
recreational center of the City. A variety
of these uses integrated with general
business, medium-high to high density
residential, and other related uses is
encouraged in an effort to provide the
appropriate mix of activities necessary to
establish a truly urban City center. The
district shall be served by the Municipal
Water and Sewer systems of the City of
Meridian. Development in this district must
give attention to the handling of high
volumes of traffic, adequate parking, and
pedestrian movement, and to provide strip
commercial development, and must be approved
as a conditional use, unless otherwise
permitted.
AMBROSE,
FIT2G ERALD
SCROOKSTON
Attorneys end
Counaeioro
P.O. Boa t2]
MariGiAn, IEAtto
83tM2
TalapKOna BBBdMt
5. That the use proposed by Applicant is an allowed
conditional use in the 0-T district both under 11-2-408 B.10. and
under 11-2-409 A. Residential, Zoning Schedule of Use Control.
6. That the property in the area is used commercially and
residentially; that the properties to the south are a vacant lot
and a grocery store; the property to the east is a parking lot for
the grocery store; the property to the west is a residence which
has also been used commercially under a conditional use permit and
farther to the west across Meridian Street is industrial property;
the properties to the north are residential.
7. That proper notice has been given as required by law
and all procedures before the Planning and Zoning Commission have
been given and followed.
8. That the property is presently vacant
9. That the area is a moderate traffic area fronting on
King Street but having East First Street and Meridian Street to
the East and West which are highly travelled.
10. That sewer and water is available to the property, but
the use will require additional charges or fees to meet the
requirements of the water and sewer ordinances of the City of
Meridian.
11. That the City Engineer has not submitted comments as of
the preparation of these preliminary findings but if and when he
does they shall be incorporated herein as if set forth in full
herein.
12. That the Ada County Highway District (ACHD) has not
AMBROSE,
FITZG ERALD
dCROOKSTON
Altornsya ~n0
Counsalore
P.O. Bow 117
MarlElAn, IEAOo
83NI
TelePlionB 88&Net
submitted comments as of the preparation of these preliminary
findings but if and when they do they shall be incorporated herein
as if set forth in full herein.
13. That the Applicant did not need to submit petitions
signed by at least 75% of the people owning property within 300
feet of the property indicating their approval of the use of the
property as requested by Applicant since the property is in the
AMBROSE,
FITZGERALD
B CROOKSTON
Attomeye en0
Counsnlorn
P.O. Box /Z]
Merltlien, Idaho
83612
T611phon68B8-N81
Old Town District.
14. That these Preliminary Findings have been prepared prior
to hearing and they may need to be amended as a result of 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; that obtaining the consent of 75% of the owners of
property within 300 feet of the external boundaries of the
Applicant's property is not required.
2. That the City of Meridian has authority to grant
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;
3. That the City of Meridian has authority to place
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;
4. That 11-2-418(C) of the Revised and Compiled 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; 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
is required by ordinance.
b. The use would be harmonious with and in
accord with the Comprehensive Plan but the
Zoning Ordinance requires a conditional use
permit to allow the use.
c. The use apparently would be designed and
constructed, to be harmonious in appearance
with the intended character of the general
vicinity.
d. That the use would not be hazardous nor
should it be disturbing to existing or future
neighboring uses.
e. The property has sewer and water service
available.
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.
h. That sufficient parking for the property
and the proposed use will 6e required.
i. The development and uses will not result
in the destruction, loss or damage of a
natural or scenic feature of major
importance.
5. That the comments of the City Engineer and the Ada
AMRROSE,
FIT2G ERALD
acROOKSroR
Attorneys an0
Gounaelon
p.o. ap. ~zT
Msrlo W, IOSAo
B3M2
TalspMna BaBMat
County Nighway District if and when submitted must be met and
complied with.
6. That these Preliminary Conclusions have been prepared
prior to hearing and they may need to be amended as a result of
AMBROSE,
FITZGERALD
B CROOKSTON
Mtomaye ana
Counselors
v.o. ao. ezT
M.r~ei,n, iaeno
eae.z
TelepNOne BBBL181
the hearing.
APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS
The Meridian Planning and Zoning Commission hereby adopts
and approves these Findings of Fact and Conclusions.
ROLL CALL
COMMISSIONER HEPPER
COMMISSIONER ROUNTREE
COMMISSIONER SHEARER
COMMISSIONER ALIDJANI
CHAIRMAN JOHNSON (TIE BREAKER)
V 0 T E D~AZJv~,OY+-~~~
VOTED~f~A~,
VOTED y~E~~/~~
VOTED ~~
VOTED
DECISION AND RECOMMENDATION
The Meridian Planning and Zoning Commission hereby recommends
to the City Council of the City of Meridian that they approve the
Conditional Use Permit requested by the Applicant for the property
described in the application with the conditions set forth in the
Findings of Fact and Conclusions of Law and that the property be
required to meet the water and sewer requirements, the fire and
life safety codes, and the Uniform Building Code, and other
Ordinances of the City of Meridian.
MOTION:
APPROVE
DISAPPROVED:
i
BEFORE THE MERIDIAN PLANNING AND ZONING COMMISSION
JULY 1991 APPLICATION TO AMEND
THE ZONING ORDINANCE AND THE
SUBDIVISION AND DEVELOPMENT ORDINANCE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The above entitled application to amend the Meridian Zoning
Ordinance and the Subdivision and Development Ordinance having
come on for public hearing on July 9, 1991 at 7:30 o'clock p.m.,
and the Planning and Zoning Commission having heard any and all
testimony that was submitted, which there was no testimony,
including the taking of judicial notice of matters of which it may
take judicial notice, and including its knowledge of existing
conditions and prior findings of fact and conclusions of law
adopted on prior amendments to the Ordinances and having duly
considered all the evidence, officially noticed evidence and the
facts of the Ordinances, the Local Planning Act of 1975, the
Comprehensive Plan of the City of Meridian, the Planning and
Zoning Commission makes the following:
FINDINGS OF FACT
1. That the Application was submitted by the Planning and
AMRROSE,
FITZG ERALO
6CROOKSTON
Attomeye entl
Couneelore
P.O. Boy ~Z]
Meritllen, ItlNo
e3e.s
Telsp~one 588~0~81
Zoning Commission and is an amendment proposed by the Commission
after holding a special work session with the City Council which
was duly noticed.
2. That there are two specific types of amendments involved
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1
AMBROSE,
FITZGERALD
d CROOKSTON
Attorneys and
Counselor
P.O. Bor ~Z7
Merlolan, IENo
aaeez
TelspMne BSSJSBt
in the Petition which are i) context, procedural, definitional and
text amendments to clarify and 2) substantive amendments.
3. That there are no amendments that pertain to one
specific parcel of land nor are there amendments to the zoning
boundaries of any Zoning District.
4. That the amendments are legislative and do not
specifically involve the owners or users of any specific property
or of the specific uses of any property.
5. That at the public hearing held before the Planning and
Zoning Commission there were no public comments or testimony or
evidence submitted on the Petition to amend objecting to the
amendments.
6. That the definition changes are, in large part,
clarifications to existing definitions or the addition of
definitions which the Planning and Zoning Commission believe to
be helpful in understanding and interpreting the Ordinances.
7. That one definitional change in "district or Zone" and
one substantive change in 11-2-407 C., Official Schedule of
District Regulations Adopted, is the deletion of the Agricultural
zone; that this change is to reflect that the City does not now
have, nor did it since 1984, have any land zoned Agricultural
although there are parcels that are used agriculturally but under
grandfather rights; that agricultural uses are generally in
conflict with urban uses.
8. In the definition of Impact Area the language deleted
from the definition improperly stated that the Area of Impact was
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2
governed by the zoning and development ordinances of the City; the
Impact Area, pursuant to Impact Area Agreements, is governed by
the Ordinances of Ada County.
9. That the change in 11-2-404 C and the addition thereto
is to reflect that the terms of the Commission are in fact six
years and to add to the Commission's powers the ability to appoint
a hearing officer to hear certain matters as allowed under the
Local Planning Act which the Commissions deems appropriate to
assist it in its duties. likewise the ability to appoint hearing
officers by the City Council, as allowed under the Local Planning
Act, is deemed to be appropriate and of administrative efficiency.
10. That in numbers 5. and 7. of the Petition to Amend, the
Planning and Zoning Commission finds that such matter would be
more economically and efficiently handled under the variance
procedures rather than the conditional use procedures.
11. That there are several amendments to reflect that the
initial Zoning and Subdivision and Development Ordinances were
passed on April 2, 1984, and that such date should be inserted to
reflect that that date is determinative of grandfather related
rights; the Planning and Zoning Commission finds that such
amendment reflects the actual policy in existence.
12. That the changes pertaining to the R-4 Residential
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District, and the uses allowed therein, are amendments to more
stringently retain the residential nature and quality of
residential life in the single-family dwelling neighborhoods of
the City and to restrict the use of single-family dwellings to
FINDINGS OF FACT AND CONCLUSIONS OF LAW 3
that use only rather than business or commercial ventures which
such uses are hereby found to be intrusions of incompatible non-
residential uses as presently prohibited under 11-2-408 B. 1., Low
Density Residential District.
13. That some of the amendments pertain to specific changes
which were ordered by the Fourth Judicial District Court regarding
the prior conditional use procedures of the City, specifically
pertaining to the applicant paying for cost of publication,
attorney and engineering fees, granting a lien to secure payment
of the costs, making a statement that the use does not violate
covenants or deed restriction, and requiring the applicant to
obtain the consent of 75% of the property owners within 300 feet
of the applicant's property.
14. That the Court mandated changes required the City to
make other changes, particularly in changing the responsibilities
of who gives notice and who mails the notices.
15. That the fee schedule was required to be deleted and the
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City Council authorized to set the fees by resolution in that new
fees need to be adopted to reflect that many of the costs of
processing some applications cannot now be passed on to the
applicant; additionally it was necessary to state that if the
filing fees for applications were not paid that the City could
revoke the permit or use granted; this is an enforcement device
to insure that the reasonable fees of the City are paid.
16. That it is necessary to amend the illustrations for
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fences to show the areas where utility accesses are to be located
FINDINGS OF FACT AND CONCLUSIONS OF LAW 4
AMBROSE,
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BCROOKSTON
Attorneys and
Counselors
F.O. Box IRT
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and show sufficient area so the fence does not interfere with
access to the utility access.
17. That there have been problems with the location of
fences and it is necessary to provide guidance and standards for
the placement of those fences.
18. That additional governmental agencies have requested
copies of development applications and therefore the number of
copies required to be filed needed to be increased, and only 4
copies of conceptual engineering plans were necessary and
therefore a change was required.
19. That it is desireable for well planned subdivisions to
have the locations of street lights shown on the plans.
20. That the Meridian Transportation Committee has indicated
that 80 foot road rights-of-way are required for section line road
and therefore that requirement needed to be added to the
subdivision requirements.
21. The covenants of subdivisions are actually reviewed at
the Council level and the ordinances should reflect that.
22. That the City had in the past a requirement for tiling
or fencing ditches; that for better safety it is found that tiling
of ditches will provide better safety and thus this requirement
is being added back into the Subdivision and Development
Ordinance.
23. That it is found that there have been occasions where
developers have not constructed improvements that were shown on
the plans; that an enforcement and responsibility provision needed
FINDINGS OF FACT AND CONCLUSIONS OF LAW 5
to be enacted to place responsibility on the owner and developer
to install and construct the planned improvements.
24, That the City has been requiring irrigation systems to
be installed in subdivisions to provide sprinkling water at
cheaper rates and to save City water; that this requirement has
worked in some cases but there has been objection to it; that an
alternate method to pressurized irrigation would be to have
developers construct or contribute to construction of new City
wells.
CONCLUSIONS OF LAW
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PITZGERALD
6 CROOKSTON
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1. That the requirements of the local Planning Act, Title
67, Chapter 65, Idaho Code, including all notice and hearing
requirements have been met; that the Planning and Zoning
Commission has authority to recommend changes to the Zoning and
Subdivision and Development Ordinances.
2, That the Application was initiated by the Planning and
Zoning Commission and not by any individual or private party.
3. That the Commission may take judicial or official notice
of existing conditions in the City, County and State, and of
governmental actions, policies and ordinances and of its own prior
findings in other land use Applications and those of the City
Council.
4. That the function of adopting and amending the Zoning
and Subdivision and Development Ordinances, is a legislative
function mandated by the Local Planning Act itself, Burt vs. The
FINDINGS OF FACT AND CONCLUSIONS OF LAW 6
City of Idaho Falls, 105 Idaho 65, 665 P.2d 1075 (1983). That
even though this is a legislative function, the Local Planning Act
requires that the procedures of 67-6509, Idaho Code, be met and
thus Findings of Fact and Conclusions have been made.
5. That the Application itself is concluded to meet the
requirements of the Local Planning Act.
6. That the Commission concludes that the facts presented
and the officially noticed facts, the Commission's knowledge of
how the City currently processes applications, the Court rulings,
current conditions in the City, and the Findings of Fact are
sufficient and support amendments to the Zoning and Subdivision
and Development Ordinances.
7. That it is in the best interest of the City and its
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citizens to amend the Zoning and Subdivision and Development
Ordinances as set forth in the Petition.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 7
APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS
The Meridian Planning and Zoning Commission hereby adopts
and approves these Findings of Fact and Conclusions.
ROLL CALL:
Commissioner Hepper
Commissioner Rountree
Commissioner Shearer
Commissioner Alidjani
Chairman Johnson (Tie Breaker)
RECOMMENDATION
Voted /~~<~
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Voted!~~
Voted ~`r/'`:%!_~~'
Voted
The Meridian Planning and Zoning Commission hereby recommends
to the City Council that the Planning and Zoning Commission's
proposed Amendments to the Meridian Zoning and Subdivision and
Development Ordinances should be approved and adopted.
MOTION:
APPROVED: I" ~'%'__ DISAPPROVED:
~.
AMBROSE,
FA2G ERALD
6 CROOKSTON
Attomsys sntl
Counselors
P.O. Box 62]
MBrltlian, Itlafto
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FINDINGS OF FACT AND CONCLUSIONS OF LAW 8