Findings - PZ - 1995 - Rezone - Rezone From R1 To C2
ORIGINAL
CITY OF EAGLE
IN THE MATTER OF
WILLIAM HODGES/WESTERN REALTY
ADVISORS APPLICATION FOR
REZONE
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
This matter having come before the Eagle Planning and zoning
Commission on February 27, March 20 and April 17, 1995, pursuant to
public notice and hearing procedures set forth in Section 67-6509,
Idaho Code, and there being present applicant William Hodges
representing Western Realty Advisors requesting an ap~roval of an
application for a rezone from R1 to C2 district classlfication.
FINDINGS OF FACT
Having given due consideration to the application and evidence
presented, the Eagle Planning and zoning commission hereby makes
the following findings of fact:
1. That on February 27, 1995, a public meeting was conducted
by the Eagle Planning and Zoning Commission. The records in this
matter indicate all notices and publications occurred as required
by law for such hearing.
2. That the shopping center as proposed will be on the
northeast corner of the intersection of Chinden Boulevard and Eagle
Road. The existing zoning of the subject pro'perty is R1. The
rezone to C2 would change the district classiflcation.
3. That the existing land use in the area is presently
commercial, residential, and agriculture. The property, requested
to be zoned C2, is bounded by Chinden Boulevard to the immediate
south, commercial property to the west and residential/agricultural
uses to the north and east. The property immediately adjacent to
the west is currently zoned C2 and is proposed to be included as
part of the shopping center complex. The property to the west of
Eagle Road is Banbury Subdivision, a residentlal subdivision. The
property to the south across Chinden Boulevard is currently zoned
for commercial shopping, which zoning is contested in litigation.
4. That the records reflect that in response to the notice
of the public hearing sent to relevant public entities, including
Ada County Highway District, Idaho State Transportation Department
and Idaho Power. The City was advised by said entitles that
subject to certain conditions there was no objection to the zone
change. The following comments were received:
Eaqle Sewer Dist.: 2/15/95, This property is outside Eagle Sewer
District's area, service would be provlded by the West Boise
Treatment Facility.
- 1 -
Idaho Power: 2/17/95, Idaho Power has a proposed 138 kV power line
targeted for the right of way. "We have no obj ections to the
rezone as long as appropriate 25 foot setbacks for an easement are
included for the line corridor, appropriate NESC (National Electric
Safety Code) height restrictions are required, and provided that
the corridor is designated on the plat to give notice of the future
line development." Easements are suggested to be restricted open
space and to be incorporated into a future acquisition map.
ACHD:
2/14/95, SPECIAL RECOMMENDATIONS TO EAGLE AND ITD:
a.
Require the construction of a 5-foot detached sidewalk or a 7-
foot attached sidewalk on Chinden Boulevard abutting the
parcel.
Com~ly with requirements of ITD for State Highway 20/26
(Chlnden Blvd.) frontage. Submit to the District a letter
from ITD regarding said requirements.
b.
c.
stub streets to adj acent
If public streets are proposed,
parcels should be anticipated.
5. That the applicant ~resented testimony and drawings
depicting a neighborhood retall shopping center to include a
"country store," restaurants and other neighborhood businesses.
The applicant stated he would construct the site and limit
operation of businesses so as to minimize impacts to neighboring
properties. The drawings and exhibits presented by ap~licant are
hereby incorporated by reference into these factual flndings, as
showing a representative example of a "country store" architecture.
6. That testimony was presented by the following neighboring
property owners: testlffiony was given by Dwayne Didericksen, the
neighbor to the east of the proposed zone change opposing the
proposal, his concerns are negative sight, sound and smell impacts,
as his home would be adj acent to the back service area of the
proposed shopping center. Testimony was also given by Jan
Castaneda, a property owner in Banbury Subdivision to the west of
the proposal. Her concerns included lighting, signa~e,
landsca~lng, store delivery hours, noise, building heights, servlce
facilitles, parking and commercial use. Jan Castaneda testified
that a C1 zone might be more appropriate for this proposal. Ms.
Castaneda also presented written testimony to the same effect.
7. That the standards used in evaluating the application are in
the following sections of the Eagle City Code and Comprehensive
Plan.
ZONING DISTRICTS
8-2-1:
Districts established:
C-2: GENERAL BUSINESS DISTRICT: To permit the
establishment of areas for commercial uses allowed
in other commercial zones and commercial uses which
are more intensive than those permitted in other
commercial zones, such as large equipment sales, as
- 2 -
well as light manufacturing in conjunction with
retail sales.
Section 8-10-1-D:
1. The Council may require a development
agreement be executed to allow a rezone if, in the
opinion of the Council, approval of the requested
rezone does not satisfy the requirements set forth
in the Zoning Ordinance for rezone approval, but
the particular project or use contemplated has a
value to the community that would justify the use
of a development agreement. A development
agreement may not allow a use on the parcel that is
not an allowed or coordinated use in the requested
rezone.
EAGLE COMPREHENSIVE PLAN
LAND USE:
Medium Density, Residential
Suitable primarily for single family residential development
within an urbanized setting. Appropriate residential densities are
4 dwelling units or fewer per gross acre.
COMMUNITY DESIGN: (#7) New residential, commercial, and industrial
development shall be required to meet minimum design standards as
specified by City ordinances.
COMMUNITY DESIGN:
Comply with the Eagle Tree Plan.
The Comprehensive Plan land use map identifies this area as
medium density residential which is suitable primarily for single
family residential development within an urbanized setting. That
the Comprehensive Plan also establishes the following policies and
goals: to preserve the rural transitional identity; to promote
compatibility between zoning districts; and to allow the
development of businesses and professional services within the City
in a manner that is commensurate with the needs of community
residents.
CONCLUSIONS OF LAW
Based upon the foregoing findings,
Commission concludes as follows:
the Planning and Zoning
1. That the primary use of other property in the area will
remain residential per the Comprehensive Plan even though the
rezone is for a commercial use. A neighborhood shopping center can
provide a valuable service to these residential nelghborhoods, if
certain restrictions are placed upon it. These restrictions must
satisfy the Comprehensive Plan provisions for orderly growth with
buffer and transition zones between conflicting types of land use.
- 3 -
2. That the restrictions can be placed upon development of
the subject property through a development agreement. The
development agreement must provide limitations on allowed uses,
hours of operation, landscaping and general appearance to ensure
the commercial development is harmonious ln appearance with
existing residential uses and does not disrupt them. Required
landsca~ing, berms and masonry walls will help protect neighboring
propertles. These limitations will reasonably limit the noise and
odors caused by the use of the property. Allowing only the
"country store" architecture and limited types of businesses will
protect the rural transitional identity of Eagle while being
compatible with potential nearby commercial use on Chinden
Boulevard. A draft of an acceptable development agreement is
attached hereto.
3. That the development agreement must include the abutting
property presently zoned C2. Although the corner of Chinden and
Eagle roads is currently zoned C2, this project, with the
restrictions contained in the recommended development agreement
will limit the commercial development to approximately C1 uses. No
intensive commercial uses will be allowed. So limited, this
project will provide a positive transition to the property zoned
residential located to the north and east.
4. That the use limitations and other restrictions in the
development agreement will adequately protect the use and enjoyment
of nearby property owners. With such limitations and restrictions,
the development described as part of the rezone application will be
an asset as it will provide neighborhood shopping and restaurants
in an aesthetically pleasing project, and improve the safety of
access to the commercial businesses on the site.
5. That the proposed zone change with the development
agreement is in harmony with the general purpose of the City's
Comprehensive Plan and ordinances and will not be otherWlse
detrimental to the public health, safety and welfare. The terms of
the development agreement will sufficiently limit adverse impacts
so as not to conflict with the use of surrounding properties.
6. That the rezone is in accordance with the Comprehensive
Plan for the foregoing reasons, allowing for organized development
of the community and maintenance of a development pattern and
design in keeping with the rural transitional identity of Eagle.
At the termination of the development agreement, the property
will revert to an R1 zoning designatlon.
RECOMMENDATION
Based upon the foregoing findings of facts and conclusions of
law, the Eagle Planning and Zoning Commission recommends that the
application be approved contingent upon execution of a development
agreement as described herein. If limited by such a development
a~reement, the rezone proposed in the application is compatible
wlth surrounding propertles' zones and land uses, and is in
accordance with the Eagle Comprehensive Plan.
- 4 -
ADOPTED by the Eagle Planning and zoning Commission of the City of
Eagle, Idaho.
This 1st day of May, 1995.
.---
-,
'. --
c.
- 5 -
Recording Requested By and
When Recorded Return to:
Moore & McFadden, Chartered
Attn: John 1. McFadden, Esq.
999 Main Street, Suite 910
Boise, Idaho 83702
For Recording Pwposes Do
Not Write Above This Line
DEVELOPMENT AGREEMENT
This Development Agreement, made and entered into this - day of , 1995,
by and between the CITY OF EAGLE, a municipal corporation in the State of Idaho ("Eagle") by
and through its Mayor and members of the City Council and WESTERN REALTY ADVISORS,
INC., an Idaho corporation and BRYCE UNDERDAHL and VIOLET UNDERDAHL
("Applicants").
WHEREAS, Bryce and Violate Underdahl are owners of record of certain real estate on the
comer of Eagle Road and Chinden Boulevard which is the subject of an application for rezone in
Eagle, identified as Rezone Application No. ; and
WHEREAS, the proposed development includes properties both within the area under the
rezone application as well as adjacent land currently zoned C2; and
WHEREAS, the Applicants desire to develop a commercial retail project on the two above
described parcels the combination of which are herein referred to as the "Property;" and
WHEREAS, testimony was received at the planning and zoning hearing on February 27, 1994
wherein nearby property owners testified regarding concerns with a large commercial retail
development and offered several suggestions to minimize the impact of the commercial development
on nearby property owners; and
WHEREAS, the Applicants agreed to many of these changes some of which would restrict
the use of the property beyond what would be allowed under the City Zoning Code for property
zoned C2;
DEVELOPMENT AGREEMENT - Page 1
WHEREAS, the intent of this Development Agreement is to protect the rights of Applicants'
use and enjoyment of the property for the purpose of developing it into a commercial retail
development while at the same time limit the adverse impacts of the commercial development upon
residential property owners near the property; and
WHEREFORE, Applicants and Eagle desire to resolve the issues and concerns that have
arisen and for and in consideration of the mutual covenants contained herein, it is agreed as follows:
ARTICLE I
LEGAL AUTHORITY
1.1 This Development Agreement is made pursuant to and in accordance with the
provisions of Idaho Code Section 67-6511A and Eagle City Code, Title 8, Chapter 10.
ARTICLE n
ZONING ORDINANCE AMENDMENT
2.1 Eagle, contemporaneously with the execution of this Development Agreement will
pursuant to the previously filed Application and the terms of this Development Agreement, adopt an
ordinance amending the Eagle Zoning Ordinance so as to provide that the Property is zoned in
accordance with the Development Agreement.
ARTICLE ill
CONDITIONS ON DEVELOPMENT
3.1 Applicants will develop property as represented in the rezone application subject to
the conditions set forth in this Development Agreement. Further, Applicants will submit such
additional application regarding design review and any conditional use permits required as set forth
in the Eagle City Code.
3.2
The commercial development will be subject to the following conditions:
3.2.1 Landscaping. Applicants will install berms, decorative masolll)' walls and such
other landscaping so as to buffer properties located to the west of the property from undue
noise and visual eyesore associated with retail commercial development;
3.2.2 Lighting. All parking lot and area lighting for the commercial development
will be by high pressure sodium lighting of no more than 250 watts contained in a shoe box
fixture (or similar cut off fixture) installed on poles no higher than fifteen feet (15');
3.2.3 Signage. All signage for commercial businesses in the commercial
development will conform to Eagle City Code Title 7, Chapter 2 and comply with the
following height and location restrictions:
DEVELOPMENT AGREEMENT - Page 2
(i) Not more than one (1) center pylon sign not to exceed fifteen feet (15')
in height with up to 100 square feet of signage space may be erected along Chinden
Boulevard; provided said sign is at least 250 feet from Eagle Road and Chinden
Boulevard intersection;
(ii) A monument sign not more than eight feet (8') in height with up to 50
square feet of signage space may be erected on each separate pad ftonting Eagle Road
or Chinden Boulevard for the business being conducted in the building constructed
on said pad; and
(ill) No exterior or freestanding sign shall utilize flashing, moving, or
audible lights or appurtenances.
3.2.4 Desip and Height of Buildin¡s. Each building in the commercial
development, now and in the future, shall be of first quality construction and architecturally
designed so that its exterior evaluations (including, without limitation, signs, material and
color) will be architecturally anesthetic ally compatible and harmonious with other buildings
in the commercial development. Such construction shall conform to a "counti)' store" design.
All service facilities, including without limitation, trash and bottle storage areas, shall be
adequately screened with masolll)' walls fÌ"om adjacent properties and a masolll)' wall, not less
than eight feet (8') in height shall be constructed behind the loading docks located to the rear
of the in-line or primal)' building to screen the loading dock areas from adjacent properties.
3.2.5 Use Limitations. The following usage shall be prohibited within the
commercial development: a bar, tavern, billiard or pool hall, massage parlor, cocktail lounge
(except if incidental to a restaurant use), adult book or adult video store or other adult sex
shop, automotive maintenance or repair facility, car wash, mini storage, warehouse or
industrial uses, or facility for the renting, leasing for selling or displaying of any boat, motor
vehicle, recreational vehicle, trailer or camper.
3.2.6 Store and Delivety Hours. No business in the commercial development shall
be open for business to the public between the hours of 12:00 midnight to 6:00 a.m No
deliveries or service trucks may be permitted in the commercial development after 8:00 p.m
or before 6:00 a.m on weekdays and between the hours of 6:00 p.m to 8:00 a.m during
weekends and holidays.
DEVELOPMENT AGREEMENT - Page 3
ARTICLE IV
ZONING
4.1 The parties mutually represent that they have taken and will take action as may be
required to bring about the neces8al)' changes to zoning and subdivision plat approval of the property
and the amendments, exceptions, and variances, as may be necessary or proper in order to zone and
classifY the property so as to enable the same to be developed and used in the manner anticipated in
this Development Agreement.
ARTICLE V
UNENFORCEABLE PROVISIONS
5.1 If any term, provision, condition or covenant of this Development Agreement or the
application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable,
the remainder of this instrument, or the application of such term, provision, condition or covenant to
persons or circumstances other than those as to whom or which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Development Agreement shall be
valid and enforceable to the fullest extent permitted by law.
ARTICLE VI
DEFAULT
6.1 In the event either party should fail to comply with or enforce the covenants and
restrictions set forth herein, within thirty (30) days) after the receipt of written notice of such failure
by any party to the Development Agreement, the complaining party shall have the right, without
prejudice to any other rights or remedies, to cure such default or enjoin such violation and otherwise
enforce the covenants and restrictions contained in this Development Agreement. In such event, the
curing or enjoining party shall be entitled, in addition to any other remedies available at law or in
equity, to recover from the other party all direct out-of-pocket costs so incurred to cure or enjoin
such default and enforce the covenants and restrictions contained in this Development Agreement,
including without attorneys' fees and court costs.
ARTICLE VII
ASSIGNMENT AND TRANSFER
7. 1 Each restriction on the commercial development shall be a burden on the commercial
development, shall be appurtenant to and for the benefit ofthe property, adjacent property and other
residential property near the property and each party thereof and shall run with the land. This
Development Agreement shall be binding on and inure to the benefit of the parties hereto and their
respective heirs, administrators, executors, agents of the parties, legal representatives, successors, and
assigns; provided, however, that if Applicants sell all or any portion of its interest in the Commercial
Development, Applicants shall thereupon be released and discharged from any and all obligations as
the owner in connection with the property sold by it arising under this Agreement after such sale and
DEVELOPMENT AGREEMENT - Page 4
conveyance of title, but shall remain liable for all obligations arising under this Agreement prior to
the sale and conveyance of title. The new owner of the Commercial Development or any portion
thereof(including, without limitation, any owner who acquires its interest by foreclosure, trustee's
sale or otherwise) shall be liable for all obligations arising under this Agreement with respect to the
Commercial Development or portion thereof after the date of sale and conveyance of title.
ARTICLE VIII
GENERAL MATTERS
8.1 No Other Agreements. This Development Agreement and other documents expressly
incorporated herein by reference contain the entire and exclusive understanding and agreement
between the parties relating to the matters contemplated hereby and all prior or contemporaneous
negotiations, agreements, understandings, representations and statements, oral or written, are merged
herein and shall be of no further force or effect.
8.2 Amendments. Any alteration, change or termination of or to this Development
Agreement, or attachments hereto, in order to become effective, shall be made by written instrument
or endorsement thereon and in each such instance executed on behalf of each party hereto and duly
recorded in Ada County, Idaho. Notwithstanding the foregoing, no such alteration, change or
termination may be made without the prior written approval of Eagle.
8.3 Par~graph Headings. This Development Agreement shall be construed according to
its fair meaning and as if prepared by both parties hereto. Titles and captions are for convenience
only and shall not constitute a portion of this Development Agreement. As used in this Development
Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be
deemed to include the others wherever and whenever the context so dictates.
8.4 Choice of Law. This Development Agreement shall be construed in accordance with
the laws of the State ofIdaho in effect at the time of the execution of this Development Agreement.
Any action brought in connection with this Development Agreement shall be brought in a court of
competent jurisdiction located in Ada County, Idaho.
8.5 Attorneys Fees. In the event any action is brought by a party hereto, seeking
enforcement of any of the terms and provisions of this Development Agreement, the prevailing party
in such action shall be entitled, to have and to recover fÌ"om the losing parties attorneys' fees and
other expenses in connection with such action or proceeding, in addition to its recoverable costs.
8.6 Notices. Any notice which a party may desire to give to another party must be in
writing and may be given by personal delivel)', by mailing the same by registered or certified mail,
return receipt requested postage prepaid, or by Federal Express or other reputable overnight delivel)'
service, to the party to whom the notice is directed at the address of such party set forth below.
Eagle:
DEVELOPMENT AGREEMENT - Page 5
Applicants:
or such other address and to such other persons as the parties may hereafter designate. Any such
notice shall be deemed given upon receipt ifby personal delivel)', forty-eight (48) hours after deposit
in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after
timely deposit with a reputable overnight delivel)' service.
8.7 Effective Date. This Development Agreement shall be effective after delivel)' to each
of the parties hereto of a fully executed original of this Development Agreement.
IN WITNESS WHEREOF, the parties have executed this Development Agreement.
DATED this - day of
,1995.
CITY OF EAGLE, a municipal corporation organized
and existing under the laws of the State of Idaho
By:
ATTEST:
Steve Guerber, Mayor
City Clerk
DATED this - day of
, 1995.
WESTERN REALTY ADVISORS, INC.,
an Idaho corporation
By:
DATED this - day of
,1995.
Bl)'ce Underdahl
DEVELOPMENT AGREEMENT - Page 6
DATED this - day of
, 1995.
Violate Underdahl
STATE OF IDAHO)
: ss.
COUNTY OF ADA )
On this - day of , 1995, before the undersigned notal)' public in and for the said
state, personally appeared STEVE GUERBER, known or identified to me to be the Mayor of the City
of Eagle and the person who executed the foregoing instrument on behalf of said City and
acknowledged to me that said City executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
Notal)' Public for Idaho
Residing at:
My Commission Expires:
DEVELOPMENT AGREEMENT - Page 7
STATE OF IDAHO)
: ss.
COUNTY OF ADA )
On this - day of , 1995, before the undersigned notal)' public in and for the
said state, personally appeared . known or identified to me to be the
of West em Realty, and the person who executed the foregoing instrument on behalf
of said Corporation and acknowledged to me that said Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
Notal)' Public for Idaho
Residing at:
My Commission Expires:
STATE OF IDAHO)
: ss.
COUNTY OF ADA )
On this - day of , 1995, before the undersigned notal)' public in and for the
said state, personally appeared BRYCE UNDERDAHL, known or identified to me to be the person
who executed the foregoing instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
Notal)' Public for Idaho
Residing at:
My Commission Expires:
DEVELOPMENT AGREEMENT - Page 8
STATE OF IDAHO)
: ss.
COUNTY OF ADA )
On this - day of , 1995, before the undersigned notal)' public in and for
the said state, personally appeared VIOLATE UNDERDAHL, known or identified to me to be the
person who executed the foregoing instrument and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
Notal)' Public for Idaho
Residing at:
My Commission Expires:
DEVELOPMENT AGREEMENT - Page 9