Staff ReportSTAFF REPORT
HEARING DATE: September 27, 2011
TO: Mayor and City Council
FROM: Bill Parsons, Associate City Planner
(208) 884-5533
E IDIAN~-
IDAHO
SUBJECT: MDA-11-008 -Spring Creek Ustick (aka Ashtyn Park)
I. SUMMARY DESCRIPTION OF REQUEST
The Applicant, Douglas Clegg, is requesting to terminate the recorded development agreement
(instrument #107022433) approved with the Ashtyn Park annexation and the amended development
agreement (#1 1 1 00 1 079) approved with the Spring Creek Ustick Assisted Living Facility. The
original DA was amended to construct the assisted living facility in lieu of a six (6) building office
complex as originally proposed. The facility is now constructed and open and the applicant wishes to
terminate both agreements in order to finalize the sale of the property.
II. SUMMARY RECOMMENDATION
Staff recommends approval of the application as detailed in Section VIII of the staff report.
III. PROPOSED MOTION
Approval
After considering all Staff, Applicant, and public testimony, I move to approve File Number MDA-
11-008, as presented in Staff Report for the hearing date of September 27, 2011, with the following
changes: (insert any changes here). I further move to direct Legal Department Staff to prepare a
Development Agreement for this site that reflects the changes noted in Section VIII.
Denial
After considering all Staff, Applicant, and public testimony, I move to deny File Number MDA-11-
008, as presented during the hearing on September 27, 2011. (You should state why you are denying
the request.)
Continuance
I move to continue File Number MDA-11-008 to the hearing date of (insert continued hearing date
here) for the following reason(s): (you should state specific reason(s) for continuance)
IV. APPLICATION AND PROPERTY FACTS
A. Site Address/Location:
The site is located on the southwest corner of Ustick Road and Meridian Road in the northeast '/
of Section 1, Township 3 North, Range 1 West
B. Owner(s):
David and Charlie Price
2291 N. Greenview Court
Eagle, ID 83616
C. Applicant/Representative:
Doug Clegg
253 E. Calderwood, Suite E
Meridian, Idaho 83642
Spring Creek Ustick MDA-11-008 Page 1
D. Applicant's StatementJJustification: Please see applicant's narrative for this information (Exhibit
A.4).
V. PROCESS FACTS
A. The subject application is a request for a development agreement modification. Per Meridian City
Code, a public hearing is required before the City Council on this matter.
B. Newspaper notifications published on: September 5, and 19, 2011
C. Radius notices mailed to properties within 300 feet on: September 1, 2011
D. Applicant posted notice on site by: September 16, 2011
VI. LAND USE
A. Existing Land Use(s) and Zoning: This site is developed with a 28,100 square foot assisted living
facility, zoned L-O.
B. Character of Surrounding Area and Adjacent Land Use and Zoning: This site is currently
surrounded by a mix of uses that include single family residences, a city park, a developing office
complex and a church.
North: Settlers Park, zoned L-O
East: Single-family residential properties in Eastbrook Village Subdivision and a Single Family
Residence, zoned R-8 and R-4
South: Rural Residence, zoned RUT in Ada County
West: Church, zoned L-O
C. History of Previous Actions:
• In 2006, this property was annexed (AZ-06-034) with an L-O zoning district. A development
agreement (DA), instrument #107022433, was recorded as a provision of annexation.
• In 2010, the applicant received a development agreement modification (MDA-10-006),
conditional use permit (CUP-10-004) and certificate of zoning compliance (CZC-10-052)
approval to proceed with developing the site with an assisted living facility. The facility is
now completed and certificate of occupancy has been issued for the building.
• In 2011, the Director issued a determination letter stating that all requirements for developing
the assisted living facility have been completed.
D. Utilities:
1. Public Works:
Location of sewer: Not applicable to this application.
Location of water: Not applicable to this application.
Issues or concerns: None
VII. AGENCY COMMENTS MEETING
No other comments were received by the Planning Department for the subject application.
VIII. STAFF ANALYSIS
The applicant is requesting Council to terminate both development agreements (DA) that govern the
property. On September 6`h, the applicant was before Council discussing the options for terminating
such agreements (see Exhibit A.2). Council's decided that the termination or modification of the
agreements should remain part of the public hearing process as outlined in the UDC and not approved
Spring Creek Ustick MDA-11-008 Page 2
administratively.
On August 29, 2011, the Director issued a determination letter to assist the applicant on concluding
the sale of the property (see Exhibit A.3). The letter was meant to satisfy the lending institution by
stating that the applicant had complied all of the provisions in both DA's and stated that a certificate
of occupancy (CO) had been issued thus verifying that all applicable conditions approved by the City
have been met and remain in effect for the subject property. The letter did not accomplish a
satisfactory outcome for the applicant who then decided to proceed with the modification.
Staff has reviewed the recorded DA's with the approved CUP and CZC to ensure that any DA
provisions that were not codified in the UDC at the time are now in place to govern the development
before recommending termination of the DA's. In particular, staff had concerns with recommending
termination since the applicant was to provide cross access and sewer connection to the adjacent
church property and comply with a specific concept plan and building elevations.
Per the requirements of the CUP and CZC, the applicant was to provide recorded sewer maintenance
and cross access agreements and comply with the site plan, landscape plan and building elevations as
conditioned in the recorded DA's. Further, Staff has a copy of the recorded documents in the file that
address cross access and sewer connections between the two properties.
Staff is of the opinion that many of the recorded DA provisions are either codified in the UDC or
conditioned with the CUP and CZC. The approved CUP Findings, CZC and CO are evidence the
project complies with all conditions. For these reasons, staff is supportive of terminating the recorded
development agreements as requested by the applicant.
However, development agreements are meant to run with the land. This issue encountered by the
applicant has lead to a larger discussion on how the City is to proceed with future requests for
termination of development agreements. Based on Council's direction, Staff has met to discuss the
standard development agreement language contained in the City's template. Because this issue has
been raised, the City's Legal Department has agreed to modify the standard DA language so that it
clear to future owners/developers that the DA is meant to run (not be terminated) with the land and
can be modified at the request of the applicant once provisions are completed to the satisfaction of the
City during the public hearing process.
IX. EXHIBITS
A. Maps/Other
1. Vicinity/Zoning Map -Property Subject to Development Agreement
2. Applicant's Narrative
3. Director's Determination Letter
Spring Creek Ustick MDA-11-008 Page 3
Exhibit A.1 -Vicinity/Zoning Map
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Spring Creek Ustick MDA-11-008 Page 4
Exhibit A.2 -Applicant's Narrative
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INDEPENDENT • ASSISTED WING • ASSISTED LIVING PLUS
August 30, 2011
Dear City Council and Mayor:
We are requesting that our existing development agreement for the Spring Creek Assisted Living Facility
located at 3165 Meridian Road be terminated. This request is in compliance with the language in the
development agreement that was previously approved by the city council. Because this project has a
certificate of occupancy, is fully compliant as noted in the Directors Determination Letter, and has no
additional phases, the need for this development agreement has expired.
Commercial loans for projects of this nattue are usually between five and seven years before they mature.
Most municipalities including the City of Meridian have changes with staff and elected officials within this
time period. There have been instances when these changes, create a different view of the intent of an
approved development agreement after a project has been completed. These differing views can vary from
the original intent of a development agreement due to a lack of participation in discussions and
negotiations that are part of their creation.
Because of what has happened recently with many lenders in this market, they along with title officers
have become increasingly detailed about underwriting procedures. When a development agreement has
language as outs does that grants permission for termination upon completion and compliance,
underwriters are seeking termination of these agreements. This termination insures lenders and potential
buyers that the project is not only compliant with existing staff and elected officials, but is without risk of
misinterpretation with future staff and elected leadership.
It is our hope that the City Council will agree that the termination of this development agreement was
approved by them when the agreement was entered into before construction of this new facility. This
development has completed all the requirements to satisfy this agreement as noted in the Directors
Determination. Consequently, it imposes a perceived risk to lenders and potential buyers. We are
t~equesting that the city approve the termination of the agreement as previously agreed too. We look
forward to discussing this at the next normally scheduled meeting on September 6~h and thank you in
advance for your consideration.
Reslfully,
~/
Dougl ~ Clegg
CEO
Spring Creek Idaho
surrnu.xmanorcora Ct&braaing SearorA[omniu
Spring Creek Ustick MDA-11-008 Page 5
Exhibit A.3 -Director's Determination Letter
(~~E IDIZ IAN,-
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August 29, 2011
Doug Clegg
283 E. Calderwood
Unit E
Meridian, ID 83642
Mayor Tammy de Weerd
Cky Council Members:
Keith Bird
Brad Hoaglun
Charles Rountree
David Zaremba
ItE: Completion of recorded Development Agreement(DA) #107022433 and Addendum #110078719
Dear Mr. Clegg:
This response is to your request for a Director's Determination set forth in your IetOer dated August 23,
2011. Specifically you are requesting the City to verify that you have complied with the original and
amended development agrcements approved with the annexation and development of the assisted living
facility located at 3165 N. Meridian Road.
As indicated in your request, there is a recorded DA and one recorded addendum associated with the
subject property. Our records indicate the following two (2) recorded documents:
• Instrument #107022433 (original DA)
• Instnunent #110078719 (addendum)
To summarize your request, the Planning Department has researched the aforementioned documents to
determine if any DA provisions have not bcen completed. Provided below is a detailed analysis of the two
recorded documents.
1. Ashtm Park Annexation (A.7~06-0341_DA~107022433
The original DA contains sixteen (16) DA provisions that requsre cmnpliance with the following:
• a concept plan (# 1);
• building elevations (#8);
• other related development requirements (#2,3,4,5,6,7,13,14,15 dr 16);
• landscape buffers (#9 do # 10) and;
• access management(#I1 & 12).
After reviewing the sixteen (16) provisions in the original DA, it appears many of the provisions (#2, 3, 4,
5, 6, 7, 9, 10, 11, 12 & t5) are requirements in the Unified Development Code (i7DC) and would be
required with development of the property regardless of the DA.
The original concept plan and building elevations (# 16c 8) were requirements of the development
agreement have been amended with the DA modification (file #IvIDA-10-006).
Planning DeparGnent . 33 E. Broadway Avenue, Meridian, ID 831342
Phone 208-884-5533 . Fax 208-888854 . www.meridiencify.org
Spring Creek Ustick MDA-11-008 Page 6
Doug Clegg
Page 2
~. Spring Ustick Develolxnent Agt~xment Modificati~ (bIDA-10-006) # l 10078719
>n 2010, several of the DA provisions approves with the original DA were amended to develop the site
with an assisted living facility in lieu of the office park. Specifically, the City Council approved a new
concept plan, new building elevations and modified several other provisions that addressed the uses and
hours of operation in the I,-O zone, a pressurized irrigation system, and a penmancet sewer easement for
the church property to west. The DA modification did not establish the assisted living facility use on the
property; that required the procurement of a conditional use permit.
In 2010, the property received conditional use permit (CUP-10-004) approval for the assistai living
facility. Compliance with the above referenced development agreements were part of the review for the
project. The approved CUP Findings for the project is evidence the project compliat with the applicable
DA provisions.
Other DA provisions required compliance prior to the issuance of a certificate of zoning compliance
(CZC) or building occupancy. In 2010, the certificate of zoning compliance (CZC-10-052) was issued by
the Planning Department followed by the issuance the certificate of occupancy (CO) to opmate the
assisted living facility. 71re issuance of the CO is the final process verifying that all City requirements
have been completed.
In summary, I have concluded that the project complies wiW all of the DA provisions and conditions of
approval associated with the property. Further, the approved CUP and CZC are indicators that the DA
provisions are complete as the site is now developed and approved for occupancy. To the best of our
knowledge there are no outstanding issues remaining for the property however, the developed properly is
still subject to the conditions of approvals associated with the approved CUP and CZC. Future
development of this property will have to comply with all city ordinances in effect at the time of
development.
Spring Creek Ustick MDA-11-008 Page 7