Spring Creek Ustick MDA-11-008CITY OF MERIDIAN
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND
DECISION & ORDER
~~ivl E IDIAN~--
IDAHO
In the Matter of the Request for a Development Agreement Modification to Terminate the
Recorded Development Agreement and the Recorded Addendum Approved with the Annexation
(fka Ashtyn Park), and Modified with the Spring Creek Ustick Project, Located on the Southwest
Corner of N. Meridian Road & W. Ustick Road, by Doug Clegg.
Case No(s). MDA-11-008
For the City Council Hearing Dates of: September 27, 2011 (Findings on October 11, 2011)
A. Findings of Fact
1. Hearing Facts (see attached Staff Report for the hearing date of September 27, 2011, incorporated
by reference)
2. Process Facts (see attached Staff Report for the hearing date of September 27, 2011, incorporated
by reference)
3. Application and Property Facts (see attached Staff Report for the hearing date of September 27,
2011, incorporated by reference)
4. Required Findings per the Unified Development Code (see attached Staff Report for the hearing
date of September 27, 2011, incorporated by reference)
B. Conclusions of haw
1. The City of Meridian shall exercise the powers conferred upon it by the "Local Land Use
Planning Act of 1975," codified at Chapter 65, Title 67, Idaho Code (LC. §67-6503).
2. The Meridian City Council takes judicial notice of its Unified Development Code codified at
Title 11 Meridian City Code, and all current zoning maps thereof. The City of Meridian has, by
ordinance, established the Impact Area and the Amended Comprehensive Plan of the City of
Meridian, which was adopted April 19, 2011, Resolution No. 11-784 and Maps.
3. The conditions shall be reviewable by the City Council pursuant to Meridian City Code § 11-SA.
4. Due consideration has been given to the comment(s) received from the governmental
subdivisions providing services in the City of Meridian planning jurisdiction.
5. It is found public facilities and services required by the proposed development will not impose
expense upon the public if the attached conditions of approval are imposed.
CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER
CASE NO(S). MDA-11-008
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6. That the City has granted an order of approval in accordance with this Decision, which shall be
signed by the Mayor and City Clerk and then a copy served by the Clerk upon the applicant, the
Planning Department, the Public Works Department and any affected party requesting notice.
7. That this approval is subject to the terms in the attached Staff Report for the hearing date of
September 27, 2011, incorporated by reference.
C. Decision and Order
Pursuant to the City Council's authority as provided in Meridian City Code § 11-SA and based upon
the above and foregoing Findings of Fact which are herein adopted, it is hereby ordered that:
1. The applicant's request for a development agreement modification to terminate the original DA
and amended DA is hereby approved in the Staff Report for the hearing date of September 27,
2011, attached as Exhibit A.
D. Notice of Applicable Time Limits
Notice of Two (2) Year Development Agreement Duration
The development agreement shall be signed by the property owner and returned to the City
within two (2) years of the City Council granting the modification.
A modification to the development agreement maybe initiated prior to signature of the
agreement by all parties and/or maybe requested to extend the time allowed for the agreement
to be signed and returned to the City if filed prior to the end of the two (2) year approval period
(iJDC 11-SB-3F).
E. Notice of Final Action and Right to Regulatory Takings Analysis
1. The Applicant is hereby notified that pursuant to Idaho Code 67-8003, denial of a development
application entitles the Owner to request a regulatory taking analysis. Such request must be in
writing, and must be filed with the City Clerk not more than twenty-eight (28) days after the
final decision concerning the matter at issue. A request for a regulatory takings analysis will
toll the time period within which a Petition for Judicial Review maybe filed.
2. Please take notice that this is a final action of the governing body of the City of Meridian.
When applicable and pursuant to Idaho Code § 67-6521, any affected person being a person
who has an interest in real property which maybe adversely affected by the final action of the
governing board may within twenty-eight (28) days after the date of this decision and order
seek a judicial review as provided by Chapter 52, Title 67, Idaho Code.
F. Attached: Staff Report for the hearing date of September 27, 2011
CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER
CASE NO(S). MDA-11-008
_2_
By action of the City Council at its regular meeting held on the day of ,
2011.
COUNCIL PRESIDENT DAVID ZAREMBA
COUNCIL VICE PRESIDENT BRAD HOAGLUN
COUNCIL MEMBER CHARLIE ROUNTREE
COUNCIL MEMBER KEITH BIlZD
MAYOR TAMMY de WEERD
(TIE BREAKER)
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City of
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Copy served upon Applicant, The Planning Department, Public Works Department and City Attorney.
B Dated: l~j I ~ ~.'0~0 ~,1
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CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER
CASE NO(S). MDA-11-008
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EXHIBIT A
STAFF REPORT
HEARING DATE: September 27, 2011
TO: Mayor and City Council E IDIAN*~^''
FROM: Bill Parsons, Associate City Planner I ~ A N o
(208)884-5533
SUBJECT: MDA-11-008 -Spring Creek Ustick (aka Ashtyn Park)
I. SUMMARY DESCRIPTION OF REQUEST
The Applicant, Douglas Clegg, is requesting to ternnate the recorded development agreement
(instrument #107022433) approved with the Ashtyn Park annexation and the amended development
agreement (#111001079) 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.
H. SUMMARY RECOMMENDATION
Staff recommends approval of the application as detailed in Section VIII of the staff report. Tltg
Meridian City Cnuncil heard this item nn September 27.2011. At the public hearine. the
ouncil approved the suhiect MDA request
as Summary of City Cnuncil Public Aearine:
j, Tn favor: Dung CIeQ¢
>li In opposition: None
Ili. Commenting: None
Ly. Written testimony: None
Y, Staff nresentinQ application: Bill Parsons
yI, Other staff commenting nn application: None
h. Kev Tssnes of Discussion by Council:
i. None
~, Kev Council Chances to Staff Recommendation
i. None
DI. 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
termination agreement for this site.
Denial
After considering all Staff, Applicant, and public testimony, I move to deny File Number MDA-11-
008, as presented during the heazing 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 heazing date
here) for the following reason(s): (you should state specific reason(s) for continuance)
IV. APPLICATION AND PROPERTY FACTS
A. Site Address/Location:
Spring Creek Ustick MDA-11-008 Page 1
EXHIBIT A
The site is located on the southwest corner of Ustick Road and Meridian Road in the northeast ~/a
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
D. Applicant's Statement/Justification: 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
VL LAND U5E
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.
• hi 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:
Spring Creek Ustick MDA-11-008 Page 2
EXHIBIT A
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°i, 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
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 ternination of the DA's. In particulaz, 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 lazger discussion on how the City is to proceed with the 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. EXHHIITS
A. Maps/Other
1. Vicinity/Zorring Map -Property Subject to Development Agreement
2. Applicant's Narative
3. Director's Determination Letter
Spring Creek Ustick MDA-11-008 Page 3
EXHIBIT A
Exhibit A.1 -Vicinity/Zoning Map
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Spring Creek Ustick MDA-11-008 Page 4
EXHIBIT A
Exhibit A.2 -Applicant's Narrative
~p~'111g Creek
INDEPENDENT ~ ASSISTEDLIVING • ASSISTED LIVING PLUS
August3Q 2011
Dear City Council and Mayor:
We are requesting that onr existing development agreemeot for the Spring Ct~ek Assisted Living Facility
lgcated at 3165 Meridian Road be tenninaled, This request is Incompliance With the language in the
development agreement that was previously apptnved bythe city council, Because [hiapinjeot hos a
eertificnte of occupancy, is fidly compliant as noted inthe Directors Determination Letter, and hasroo
additional phases, the need for [his development agieentent has expired..
Commercud loans fot• projects of this nahae ate usually between. five and seven years before they mafite.
Most munlcipallties including the City of Meridian have changes with staff and elected officials Wlthin this
time period. 'Chete have been instances when these dtanges, create a different view of [he intent of an
approved developmentagreement after a project has been completed. These differing views can vary from
the original intent ofa developmenk agtramen[ duo t0 a lack of patticipalionindiscussfons and
negotiations that ere part of tlrelr 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 bas
language es ours does that grants permission FoPtcrmination upctt completion mtd eompllance,
underwriters ate seeking termination of these egreemettts.'fhis termination insures larders and potential
buyers [hat the project is not only compliant with existing staff and elected officials, but is without risk of
misinterpremtion with ffimte staff and elealed leadership.
II isuur hopetha[ the Cily Council will agree that the-terminationof this development agreement was
approved by them when the agreement was entered into before consp action of this new facility, This
development hascotnpleted all the requirements to satisfy this ogreement as noted In the Dlrectots
Determination. Consequently, it imposesa perceived risk to lenders and potential buyers. We arc
requesting that [be city approve the terrninution of [he agreement as previously agiecd loo. VVc look
forward to discussing this nt the next normally scheduled meeting on September 6"`and thank you in
advance for your consideration.
Rasp e fully,
Dougl ,Clegg L~
Cro
Spring Creek Idaho
twmu8wrnriorrour Ce%binr(i~SmlouMareenrr
Spring Creek Ustick MDA-11-008 Page 5
EXHIBIT A
Exhibit A.3 -Director's Determination Letter
~~i'V` E IDIAN;--
August 29, 2011
Doug Clegg
283 E. Calderwood
Unit 6
Meridian, ID 83642
MayorTammy de Weerd
City Coundl Members:
Keith BIM
Brad Hoaglun
Charles Rountree
David Zaremba
RE: Completion of recorded Development Agreement(DA)#107022433 and Addendum#110078719
Dear Mr. Clegg:
This response is to yew request for a Director's Determination set forth in your letter dated August 23,
2011. Speclficelly you ere requesting tlta City to verify that you have complied with lha original end
emended development egrcemenls approved with the annexation and development of the assisted living
facility located et 3165 N. Meridian Road.
Aa indicated in your request, them Is a recorded DA and ooe recorded addendum associated with the
subject property. Our records indicam the following two (2) recorded documents:
• Instntment#107022433 (original DA)
• InsWment #110078719 (addendrun)
To summarize your request, the Planning Department has researohed the aforementioned documents to
determine if any DA provisions have not bean completed. Provided below Is a detailed analysis of the two
recorded documents.
1 Ashtyn Park Annexation (A2.06A34) DA #107022433
The original DA contains sixteen (16) DA provis[ons that require compliance with the following:
• aconcopt plan (#1);
• building elevations (#8);
• other related developmentrequirements(#2,3,4,5,6,7,13,14,158c 16);
• landscape buffers (#9 & #10) and;
• access management(#ll & 12).
After reviewing the sixteen (16) provisions in the origlnel DA, it appears many of the provisions (ill, 3, 4,
5, 6, 7, 9, 10, 11, 12 & 15) ere requirements in the Unified Development Codo (UDC) and would be
required with development of the property regardless of the DA.
The origlnel concept plan and building elevations (#] & 8) were requhemants of the development
agreement have been amended wiW the DA modification (file #MDA-10-006).
PWnnlnp Department . 33 E. Broadway Avenue, Merldlan, ID 83842
Phone 208-884-6633 . Fax 208-B88~8854. www.meddlencity.or0
Sprirrg Creek Ustick MDA-11-008 Page 6
EXHIBIT A
Doug Clegg
Page 2
2. Soring Ustick Develooment Aereement Modification lMDA-10-006)#110078719
In 2010, saverel of the DA provisions approved with the original DA ware amended to develop the site
with en assisted living facility in lieu of the office perk. Specifically, the City Council approved a new
concept plan, new building elevations amd modified several other provisions that addressed the uses end
hours of operation hr the I.,-O zone, a pressurized urigation system, and a permenem[ sewer easement for
the church property to west. Tha DA modifirafion did not establish the essiated living facility use oa the
properly; that required the procurement of a wnditional use permit.
In 201Q, the properly received conditional use permit (CUP-10A04) approval for the assisted living
facility. Compliance with the above referonced development agrcemonts were pert of the review for the
project. The approved CUP Findings for the protect Is evidence the project wmplied with the applicable
DA provisions.
Other DA provisions required compliance prior ro the issuance of a certificate of caning compliance
(CZC) or building occupancy. In 2010, the certificate of zoning compliance (CZC-10-052) was issued by
the Planning Department fol lowed by [he issuance the certificate of oceupency (CO) to operate the
assisted living facility. The issuanco of the CO is the final process verifying that ell City requirements
have been completed.
in sununary, I have concluded that the project complies witlr ell of the DA provisions and conditions of
approval associated with Ore property. Further, the approved CUP end CZC era indicetom that [he DA
provisions are complete as the site is now developed and approved for oaupancy. To the bust of our
knowledge them era no outstanding issues remaining for the property however Ura developed properly is
still subject to the conditions of approvals associaed with the approved CUP and CZC. I•ltluro
develapmrnt of Ihis property wit l have ro comply with all city ordinances in effect a[ the time of
development.
Spring Creek Ustick MDA-11-008 Page 7