Findings - CC - 2007 - RZ-05-02 MOD - Mod To Da/#1050298058/Zoning Of Property
ORIGINAL
BEFORE THE EAGLE CITY COUNCIL
IN THE MATTER OF AN APPLICATION )
FOR A MODIFICATION TO THE )
DEVELOPMENT AGREEMENT FOR )
THE REZONE FROM RUT TO MU-DA )
FOR LAKEMOOR SUBDIVISION FOR )
DMB INVESTMENTS, LLC, AND EAGLE )
LIFESTYLE CENTER, LLC )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CASE NUMBER RZ-05-02 MOD
The above-entitled rezone modification application came before the City Council for their decision on
June 19,2007. The City Council, having heard and taken oral and written testimony, and having duly
considered the matter, makes the following Findings of Fact and Conclusions of Law;
FINDINGS OF FACT:
A. PROJECT SUMMARY:
DMB Investments, LLC, represented by Stephen Bradbury and Eagle Lifestyle Center,
LLC, represented by JoAnn Butler, are requesting modifications to the development
agreement (Instrument #1050298058) associated with the MU-DA (Mixed Use with
development agreement) zoning of the property. The I 78.52-acre, 240-10t (I 42-
residential, 53-commercial, 45-common) development is located on the east side of S.
Eagle Road approximately one-half mile north of Chin den Boulevard.
B. APPLICA TION SUBMITTAL:
The application for this item was received by the City of Eagle on April 12, 2007.
C. NOTICE OF PUBLIC HEARING:
Notice of Public Hearing on the application for the Eagle City Council was published in
accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City
Code on May 14, 2007. Notice of this public hearing was mailed to property owners
within three-hundred feet (300-feet) of the subject property in accordance with the
requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on May 2, 2007.
The site was posted in accordance with the Eagle City Code on May 18, 2007.
D. HISTORY OF RELEVANT PREVIOUS ACTIONS:
On January 28, 1992, the City Council denied an annexation, rezone, and preliminary plat
(A-911 R2-91/ PP-91) for Fall Creek Subdivision.
On January 4, 1993, the City Council approved an annexation, rezone, and preliminary
plat (A-911 R2-911 PP-91) for a revised version of Fall Creek Subdivision. That
preliminary plat approval has since lapsed.
On July 22, 2003, the City Council approved a Comprehensive Plan Amendment (CPA-
4-02) to change the land use designation on the Comprehensive Plan Land Use Map from
Residential Two (up to two dwelling units per acre) to Mixed Use, an annexation and
rezone (A-3-02 & RZ-5-02) from RUT (Rural Urban Transitional) to MU-DA (Mixed
Use with Development Agreement) and a rezone from R-2 (Residential-up to two
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dwelling units per acre) to MU-DA (Mixed Use with Development Agreement) for this
site for B.W. Eagle, Inc.
On May 10, 2005, the City Council approved the preliminary plat for Lakemoor
Subdivision a I 78.52-acre, 240-lot (I42-residential, 53-commercial, 45-common)
subdivision.
On February 28, 2006, the City Council approved the final plats for Lakemoor
Subdivision No.1 and Lakemoor Subdivision No.2 for DMB Investments, Inc.
E. COMPANION APPLICATIONS:
DR-22-07 - Retail and Restaurant Facilities within The Shops at Lakemoor for Robert
Brandon, Poag and McEwen Lifestyle Centers, LLC, represented by Jennifer Haskamp
with Landform Engineering Company.
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F. COMPREHENSIVE PLAN LAND USE MAP AND ZONING MAP DESIGNA TIONS:
COMPPLAN ZONING LAND USE
DESIGNATION DESIGNATION
Existing Mixed Use MU-DA (Mixed Use with Lakemoor Subdivision
development agreement)
Proposed No Change No Change "The Shops at Lakemoor"
commercial center, and a
mixed use corporate
campus or multi-family
development
North of site Mixed Use and R-I (Residential-one unit Rural Residences & Eagle
Commercial per acre maximum), C-I- Market Place
DA (Neighborhood
Business District with a
development agreement),
C-2-DA (General Business
District with a development
agreement)
South of site Residential Two MU-DA (Mixed Use with Coast To Coast Subdivision
development agreement), (Laguna Pointe
R-2-DA-P (Planned Unit Subdivision)
Development, Residential-
two units per acre
maximum with a
development agreement)
and R-E-DA-P (Planned
Unit Development,
Residential Estates one unit
per two acres maximum
with a development
agreement)
East of site Residential Two (up to RUT (Residential - Ada Rural Residences & Pasture
two dwelling units per County designation)
acre maximum) & Public I
Semi-Public
West of site Residential Two (up to MU-DA (Mixed Use with a Rural Residences &
two dwelling units per development agreement), Banbury Meadows
acre maximum) R-2 (Residential) & R-2-P Subdivision
(Residential PUD)
G. DESIGN REVIEW OVERLAY DISTRICT: Not in the DDA, TDA, CEDA, or DSDA.
H. TOTAL ACREAGE OF SITE: 178.52 acres
1. APPLICANT'S STATEMENT OF JUSTIFICATION OF A DEVELOPMENT AGREEMENT:
The applicant is requesting this development agreement modification to allow for a proposed
commercial development within Lakemoor Subdivision.
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J. A V AILABILITY AND ADEQUACY OF UTILITIES AND SERVICES:
The information provided at the time of preliminary plat from the agencies having
jurisdiction over the public facilities necessary for the site indicated that adequate public
facilities exist, or were required to be provided, to serve both residential and commercial
uses on this property under the proposed zone.
K. PUBLIC USES SHOWN ON FUTURE ACQUISITIONS MAP: No map currently exists.
L. NON-CONFORMING USES:
There are currently no non-conforming uses located on this site.
M. AGENCY RESPONSES:
The following agencies previously responded to the original application for the
comprehensive plan amendment, annexation and rezone (CPA-4-02&A-03-02&RZ-05-
02) and their correspondences are attached to the staffreport dated November 14, 2002.
Central District Health Department
Drainage District #4 (Ringert - Clark)
Eagle Sewer District
Idaho Department of Transportation
United Water
N. LETTERS FROM THE PUBLIC: None received to date.
STAFF ANALYSIS PROVIDED WITHIN THE STAFF REPORT:
COMPREHENSIVE PLAN PROVISIONS WHICH ARE OF SPECIAL CONCERN REGARDING
THIS PROPOSAL:
. The Comprehensive Plan Land Use Map currently designates this site as:
Mixed Use.
Suitable primarily for a variety of uses such as limited office, limited commercial, and
residential developments. Uses should complement uses within the Central Business District
(CBD). Development within this land use designation should be required to proceed through
the PUD and/or Development Agreement process, see specific planning area text for a
complete description.
Scenic Corridor
An Overlay designation that is intended to provide significant setbacks from major corridors
and natural features through the city. These areas may require berming, enhanced
landscaping, detached meandering pathways and appropriate signage controls.
. Chapter 5 - Economic Development
5.1 Background
The economic development component of the Comprehensive Plan presents a discussion
of the economics and employment in Eagle. The city encourages appropriate economic
development while retaining those attributes that give Eagle its special living and
working environment.
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. Chapter 12 - Community Design
12.3 Objectives
Enhance the appearance of the City's entry corridors. Design review procedures
should guide future development and redevelopment of existing uses. Depending on
land uses and buildings, more extensive landscaping and fewer points of access may
be required. The design review process will enable the City to address the special
features of each property and facility in a manner that will best address the overall
intent of enhancing Eagle's entryways. Eagle's entrance corridors may take on the
look of landscaped berms like those built adjacent to the Banbury and Lexington Hills
Subdivisions.
B. ZONING ORDINANCE PROVISIONS WHICH ARE OF SPECIAL CONCERN REGARDING
THIS PROPOSAL:
. Eagle City Code, Section 8-2-1 Districts Established Purposes And Restrictions:
The following zoning districts are hereby established. For the interpretation of this title
the zoning districts have been formulated to realize the general purposes as set forth in
this title. In addition, the specific purpose of each zoning district shall be as follows:
MU MIXED USE DISTRICT: To provide for a variety and mixture of uses such as
limited office, limited commercial, and residential. This district is intended to ensure
compatibility of new development with existing and future development. It is also
intended to ensure assemblage of properties in a unified plan with coordinated and
harmonious development which shall promote outstanding design without unsightly and
unsafe strip commercial development. Uses should complement the uses allowed within
the CBD zoning district. All development requiring a conditional use permit in the
MU zoning district, as shown in section 8-2-3 of this chapter, shall occur under the
PUD and/or development agreement process in accordance with chapter 6 or 10 of
this title unless the proposed development does not meet the area requirements as set
forth in section 8-6-5-1 of this title. In that case a cooperative development, in
conjunction with adjacent parcels (to meet the minimum area requirements), shall be
encouraged. Otherwise a conditional use permit shall be required unless the proposed use
is shown as a permitted use in the MU zoning district within section 8-2-3 of this chapter.
Residential densities shall not exceed ten (10) dwelling units per gross acre. When a
property is being proposed for rezone to the MU zoning district a development agreement
may be utilized in lieu of the PUD and/or conditional use process if approved by the city
council provided the development agreement includes conditions of development that are
required during the PUD and conditional use process.
· Eagle City Code, Section 8-2A-8 Sign Regulations defines Monument Signs as:
MONUMENT SIGN: A freestanding sign with a solid base, including rock signs, or with
supports that are designed to be structurally similar to the sign construction, and which
incorporate architectural features which complement the sign construction. Pole type
supports are not permitted.
· Eagle City Code, Section 8-10 Development Agreements
Eagle City Code, Section 8-10-1 Requirements and Restrictions:
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A. Purpose: Development agreements are a discretionary tool to be used by the council
as a condition of rezoning. Development agreements allow a specific project with a
specific use to be developed on property in an area that is not appropriate for all uses
allowed or conditional in the requested zone.
C. DISCUSSION:
. The previous application submitted by the applicant (RZ-05-02) included a concept plan
and development agreement with the site being developed with residential uses to the east
and commercial uses to the west adjacent to Eagle Road. On July 22, 2003, the City
Council approved the application with specific conditions to be included within a
development agreement. The applicant is now requesting a modification to the
application due to addition of an additional partner in the development and changes in the
vision of how the commercial and multi-family portion of the site is to develop.
. With this application and development agreement, the applicant is requesting the
following:
I) Amend and restate the development agreement and void the original development
agreement (Instrument # I 05029058)
2) Add Eagle Lifestyle Center, LLC, "ELC" as an additional owner to the
development
3) Designate which owner is responsible for specific areas of the development
4) Provide for a maximum height exception within specific areas of the development
5) Provide for reduced setbacks for Building 300 and Building 600
6) Increase the maximum size of buildings
7) Allow for multiple buildings on the same lot
8) Allow a maximum of 330,000 square feet ofretail space
9) Providing Site Design Guidelines ("ELC" Design Guidelines), Exhibit F
10) Designate the amount of required open space in specific areas
11) Defining the parking areas as not being concentrated between the buildings and
Eagle Road
12) Striking Conditions of Development, within the original development agreements
that are completed.
A development agreement allows a development to overcome certain obstacles or
provide innovative solutions that the ordinance may not be flexible enough to allow.
· Within the Conditions of Development, Condition #3.8, the applicant is proposing to
allow up to sixteen (16) units per acre for apartments or multi-family development in
Areas Hand 1. The Comprehensive Plan and Eagle City Code only allow for up to ten
(10) units per acre. The first sentence of Condition #3.8 should be changed to read as
follows: The Areas of the Property labeled H and I as depicted on Exhibit A2 are
encouraged by Eagle to be developed by DMB with apartments or multi-family
dwellings, with a maximum density of up to 10 units per acre.
· Within the Site Design Guidelines ("ELC" Design Guidelines), Exhibit F, Graphics, and
Signage, the Guidelines reference Pylon Signs. Per Eagle City Code Pylon Signs are
prohibited. The applicant should provide a revised Exhibit F with references to Pylon
Signs removed.
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STAFF RECOMMENDATION PROVIDED WITHIN THE STAFF REPORT:
Based upon the information provided to staff to date, staff recommends approval of the requested
modification to amend and restate the previously approved development agreement (recorded as
Instrument No.1 05029058) with the conditions as provided within the staff report.
PUBLIC HEARING OF THE COUNCIL:
A. A public hearing on the application was held before the City Council on June 19, 2007, at which time
testimony was taken and the public hearing was closed. The Council made their decision at that time.
B. Oral testimony in favor of this proposal was presented to the City Council by no one (other than the
applicants/representatives) .
C. Oral testimony in opposition to this proposal was presented to the City Council by one (I) individual
who indicated that he resides on the bluff overlooking the development and expressed concerns
regarding noise and light pollution. The individual indicated that this area should remain residential,
however he felt it was a great looking project.
COUNCIL DECISION:
The Council voted 5 to 0 to approve RZ-05-02 MOD for a modification to the development
agreement for DMB Investments, LLC, and Eagle Lifestyle Center, LLC, by amending and
restating the original development agreement (recorded as Instrument No. 105048971) to read as
follows:
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This First Amended and Restated Development Agreement (this "Development Agreement"),
made and entered into on the date as indicated herein, by and between the CITY OF EAGLE, a municipal
corporation in the State of Idaho ("Eagle"), DMB Investments, LLC, an Idaho limited liability company
("DMB") and EAGLE LIFESTYLE CENTER, LLC, a Delaware limited liability company ("ELC").
DMB and ELC are sometimes referred to herein, individually or collectively, as the context dictates, as
"Applicant." Upon recordation of this Development Agreement, that certain Development Agreement
recorded in the real property records of Ada County, Idaho, on March 10, 2005, as instrument number
105029058 (the "Original Development Agreement") shall be void and of no further force or effect.
WHEREAS, Applicant is the owner of record of certain real estate consisting of approximately
one hundred eighty three (I83) acres located south of the Boise River, and east of Eagle Road, Eagle,
Idaho, all as shown on Exhibits Al and A2 ("Concept Plan") and described on Exhibit B ("Property"),
which is the subject of an application for rezone, identified as Eagle Rezone Application No. RZ-5-02 and
which is subject to an application for modification of development agreement, identified as Eagle Rezone
Modification Application No. RZ-5-02-MOD; and
WHEREAS, the proposed development includes properties within an area that, at the time the
Original Development Agreement was recorded, were designated on the Land Use Map of the
Comprehensive Plan as Mixed Use and zoned "R-2, R-l, and RUT (Ada County Residential Zoning
Designation)"; and
WHEREAS, Applicant desires to develop the Property for office, commercial, residential and
open space purposes as generally shown on the Concept Plan; and
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WHEREAS, the City Council of Eagle has determined that the scope of any office, commercial
and residential project upon the Property should be limited to prevent undue damage to, and to otherwise
be in harmony with, the existing community; and
WHEREAS, the intent of this Development Agreement is to protect the right of Applicant to use,
enjoy and develop the Property while at the same time limit any adverse impacts of the development upon
neighboring properties and the existing community and ensure the Property is developed in a manner
consistent with Eagle's Comprehensive Plan and City Code; and
WHEREAS, Applicant has agreed to the use restrictions and other limitations set forth herein
upon the use and development of the Property and has consented to the Mixed Use District ("MU-DA")
zoning designation for the Property with the requirements set forth in the Original Development
Agreement as replaced by this Development Agreement; and
WHEREAS, this Development Agreement provides approval of a height exception as allowed by
Eagle City Code Section 8-2A-6(B)(6)(a) because this Development Agreement is approved in lieu of a
PUD as described herein; and
WHEREAS, the City Council has determined that, in accordance with Eagle City Code Section 8-
2-1, the Original Development Agreement as replaced by this Development Agreement is to be used in-
lieu of the PUD and conditional use process; and
WHEREAS, DMB and ELC as owners of the Property have previously provided Eagle with
affidavits agreeing to submit the Property to a development agreement pursuant to Eagle City Code
Section 8-10-1(C)(1); and
WHEREFORE, Applicant and the City of Eagle desire to enter into this Development Agreement
and for and in consideration of the mutual covenants contained herein, it is agreed as follows:
ARTICLE I
LEGAL AUTHORITY
This Development Agreement is made pursuant to and in accordance with the provisions of Idaho
Code Section 67-6511 A and Eagle City Code, Title 8, Chapter 10.
ARTICLE II
COMPREHENSIVE PLAN AMENDMENT
AND
ZONING ORDINANCE AMENDMENT
Eagle has adopted, by resolution, an amendment to the Land Use Map of the Eagle
Comprehensive Plan to designate the Property Mixed Use, as described in Chapter 6 of the Eagle
Comprehensive Plan.
Eagle has adopted an ordinance amending the Eagle Zoning Ordinance to rezone the Property to MU-DA,
subject to the provisions of this Development Agreement. Ordinance #510 became effective after its
passage, approval, and publication November 14, 2005, and the execution and recordation of the Original
Development Agreement and Ordinance #510 will continue to be effective after the execution and
recordation ofthis Amended and Restated Development Agreement.
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ARTICLE III
CONDITIONS ON DEVELOPMENT
3.1 DMB and ELC will develop the Property subject to the conditions and limitations set
forth in this Development Agreement. Further, DMB and ELC, as applicable will submit such
applications regarding floodplain development permit review, design review, preliminary and final plat
reviews, and/or any conditional use permits, if applicable, and any other applicable applications as may be
required by the Eagle City Code, which shall comply with the Eagle City Code, as it exists at the time
such applications are made except as otherwise provided within this Development Agreement.
3.2 The residential Area A ("Carriage Home Sites") as depicted on Exhibit A2 shall be
developed by DMB in a combination of attached town homes and detached patio homes at an
approximate density of five units per acre.
· Setbacks and Minimum lot size proposed for the Carriage Home Sites:
Front
Rear
Common Side (town home)
Interior Side
Additional Setback for
Multi-Story structures
Street Side
15 feet
I 0 feet
o feet
5 feet
5 feet
15 feet
Minimum Lot Size 5,000 square feet
Any reduction of lot sizes below the minimum lot size of the standard lot within
the MU-DA zone (7,000 square feet) shall require an offsetting increase of the
same square footage of open space. The specific calculation for the offsetting
increase of open space and such open space shall be incorporated into and shall
be reviewed with the preliminary plat for Area A.
The residential Area B ("Luxury Home Sites") as depicted on Exhibit A2 shall be developed by
DMB for single-family detached homes at an approximate density of two units per acre.
· Setbacks proposed for the Luxury Home Sites:
Front
Rear
Interior Side
Additional Setback for
Multi-story structures
Street Side
20 feet
25 feet
7.5 feet
5 feet per story
20 feet
The residential Area C ("Custom Home Sites") as depicted on Exhibit A2 shall be developed by
DMB in single-family detached homes at an approximate density of four units per acre.
· Setbacks proposed for the Custom Home Sites:
Front
Rear
Interior Side
20 feet
25 feet
7.5 feet
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Additional Setback for
Multi-story structures 2.5 feet per story - When the 2nd story wall section is
designed to be offset toward the inside ofthe house from the lower story so
that there is "break" in the plane of the wall sections between stories then the
second story setback may be reduced by 2.5 feet.
5 feet per story - When the first and second story wall
sections are designed as a flat, single plane then the side setback shall be
increased by 5 feet for a total side setback of 12.5 feet.
For the purposes of implementation of the setbacks noted herein, the first
story shall have a top plate no higher than ten feet (10').
Street Side
20 feet
The residential portion of this development proposal is recognized by Eagle and DMB as a
desired component to a mixed use development. A residential component substantially in conformance to
that depicted in the Concept Plan shall be maintained.
3.3 The Mixed Use Commercial Area 0 ofthe Property, as depicted on Exhibits A2 and A3,
is proposed to be developed by ELC with a combination of any commercial uses allowed within Eagle
City Code Section 8-2-3 "Official Schedule of District Regulations" under the MU zoning designation
(except as limited in Section 3.10 below), a copy of which is attached as Exhibit C. Buildings up to a
maximum 50,000 square feet each are permitted in Area D. The maximum height of commercial
buildings shall be 50 feet; non-habitable architectural elements shall be a maximum height of 60 feet. The
setback from East Eagles Gate Road for the buildings identified as Building 300 and Building 600 shall
be a minimum of 10 feet. Multiple buildings are permitted to be located on the same lot, provided
however, that the maximum lot coverage requirements stated in Eagle City Code are not exceeded.
3.4 Area E, depicted on Exhibit A2, may be developed similar to the commercial uses
proposed to be developed by ELC within Area 0 (except as limited in Section 3.10 below). If ELC or
DMB does so develop Area E, buildings up to a maximum 50,000 square feet each are permitted for this
Area E and multiple buildings are permitted to be located on the same lot, provided however, that the
maximum lot coverage requirements stated in Eagle City Code are not exceeded. The maximum height of
commercial buildings shall be 50 feet; non-habitable architectural elements shall be a maximum height of
60 feet. If Area E does not become an expansion ofthe commercial uses proposed to be developed within
Area 0, Area E shall be developed as provided in Section 3.5 below.
3.5 If Area E of the Property, as depicted on Exhibit A2, does not become an expansion of
the commercial uses proposed to be developed within Area 0 as provided in Section 3.4 above, Area E is
to be developed by DMB with a combination of any office and retail uses allowed within Eagle City Code
Section 8-2-3 "Official Schedule of District Regulations" under the MU zoning designation (except as
limited in Section 3.10, below), a copy of which is attached as Exhibit C. Buildings up to a maximum of
50,000 square feet each are permitted for this area. This square foot limitation does not apply to
Fitness/Indoor Recreation Facilities, Education Facilities, and Hotels. The maximum height of Hotels and
Office Buildings shall be 50 feet; non-habitable architectural elements shall be a maximum height of 60
feet. Multiple buildings are permitted to be located on the same lot, provided however, that the maximum
lot coverage requirements stated in Eagle City Code are not exceeded.
3.6 The Mixed Use Corporate Campus Areas F, G, H and I of the Property, as depicted on
Exhibit A2, are to be developed by DMB with a combination of any office and commercial uses allowed
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within Eagle City Code Section 8-2-3 "Official Schedule of District Regulations" under the MU zoning
designation (except as limited in Section 3.10, below). A privately owned and operated special events
facility and clubhouse, consisting of reception areas, meeting rooms, dining facilities, and indoor and
outdoor recreational facilities, which special events facility may also function as a clubhouse for the
owners of residential properties to be developed on the Property, shall be a permitted use in Area F.
Buildings up to a maximum of 100,000 square feet each are permitted for this area, except that retail
buildings shall be a maximum of 50,000 square feet each. This square foot limitation does not apply to
FitnesslIndoor Recreation Facilities, Education Facilities, Office Buildings and Hotels. The maximum
height of Hotels and Office Buildings shall be 50 feet; non-habitable architectural elements shall be a
maximum height of 60 feet. Multiple buildings are permitted to be located on the same lot, provided
however, that the maximum lot coverage requirements stated in Eagle City Code are not exceeded.
3.7 This Development Agreement approves the height exceptions enumerated in paragraphs
3.3, 3.4, 3.5 and 3.6 as allowed by Eagle City Code Section 8-2A-6(B)(6)(a) based on the Design
Guidelines, defined below, substantially in compliance with Exhibit E, attached hereto and incorporated
herein by reference, and the ELC Design Guidelines, defined below, substantially in compliance with
Exhibit F, attached hereto and incorporated herein by reference.
3.8 The total square footage of building area for retail uses allowed in ECC Section 8-2-3
within this development shall not in the aggregate exceed 330,000 square feet.
3.9 The Areas of the Property labeled H and I as depicted on Exhibit A2 are encouraged by
Eagle to be developed by DMB with apartments or multi-family dwellings, with a maximum density of up
to 16-units per acre. 15% open space within Areas H and I will be required if developed as multi-family
residential. However, the use of Areas H and I as indicated on the Concept Plan (office) is approved as
part of this Development Agreement. A change in the development of these Areas from office to multi-
family residential (as encouraged herein) will not require a modification to this Development Agreement.
This change may be considered at the time a design review application is made for these Areas.
3.10 All uses shown as "P" permitted under the MU zoning designation within Eagle City
Code Section 8-2-3 "Official Schedule of District Regulations," a copy of which is attached as Exhibit C,
shall be considered permitted uses. All uses shown as "C" conditional uses under the MU zoning
designation within Eagle City Code Section 8-2-3 "Official Schedule of District Regulations," a copy of
which is attached as Exhibit C, shall require a conditional use permit, except the residential portions of
the Property described in Section 3.2 shall not require a conditional use permit. In addition to all other
uses prohibited within said section of Eagle City Code and on the entire Property as noted above, the
following uses shall also be prohibited onJhe Property:
.
Residential, Mobile Home (Single Unit);
Residential, Mobile Home (Single Unit Temporary Living Quarters;
Residential, Mobile Home Park;
Commercial, Adult Business;
Commercial, automotive, mobile home, travel trailer, and/or farm implement
sales;
Commercial, Cemetery;
Commercial, Drive-In Theatre;
Commercial, Mortuary;
Commercial, Storage (fenced area);
Industrial, Railroad yard or shop;
Industrial, Terminal yard, trucking; and
Industrial, Truck and equipment repair and sales (heavy).
.
.
.
.
.
.
.
.
.
.
.
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However, if the permitted and conditional uses in the MU zoning designation are expanded, such
expanded uses shall be allowed as permitted or conditional uses as the case may be.
3.11 Except for the limitations and allowances expressly set forth above and the other terms of
this Development Agreement, the Property can be developed and used consistent with the Mixed Use
District land uses allowed by the Eagle City Code Section 8-2-3 "Official Schedule of District
Regulations", a copy of which is attached as Exhibit C.
3.12
following:
The conditions, covenants and restrictions for the Property shall contain at least the
(a)
An allocation of responsibility for maintenance of all community and privately owned
landscaping and amenities.
(b)
A requirement insuring compliance with the Design Guidelines or ELC Guidelines, as
applicable, approved with this Development Agreement.
3.13 All development within Areas A through C and F through I, as depicted on Exhibit A2,
shall be consistent with the Site Design Guidelines ("Design Guidelines") attached hereto as Exhibit E
and generally consistent with the Concept Plan attached hereto as Exhibits Al and A2. All development
within Areas 0 through E, as depicted on Exhibit A2, shall be consistent with the Site Design Guidelines
("ELC Design Guidelines") attached hereto as Exhibit F and generally consistent with the Concept Plan
attached hereto as Exhibits Al and A2. The Concept Plan attached hereto indicates the general nature
and relative location of certain elements for the Property. The intent of this Development Agreement is to
allow sufficient flexibility at the time of detailed planning and platting while still maintaining the general
intent of the Concept Plan with the requirements set forth in this Development Agreement. Specific
design elements shall be clarified during the platting and design review application processes. However,
the streetscape as shown on the concept plan (the round-abouts, center islands, and street trees) shall be
required design elements as part of the final design for the site and the open space for Area 0 and Area E
shall be 25% in the aggregate, and open space for Area F and G shall be 25% in the aggregate, and open
space in Area H and Area I (subject to Section 3.9 above) shall be 25% in the aggregate. For the purpose
of this Development Agreement, open space shall be defined as all areas other than buildings, parking
lots, roadways, and individual residential lots within Areas A, B, and C.
3.14 Applicant agrees all development and improvement of the Property shall comply with
applicable rules and regulations pertaining to regulated wetlands.
3.15 Applicant will comply with all applicable provisions of Title 10, Flood Control, of the
Eagle City Code.
3.15.1 Area K (as shown on the concept plan as a pond and is 6.2 acres in size) may be
used for flood water holding capacity and the area therein may be used as part of the
site's no net loss calculation if the area is included within the corporate limits of the City
of Eagle and is subsequently approved as part of the floodplain development permit
pursuant to Title 10 of the Eagle City Code for the overall development.
3.16 DMB shall construct a meandering six foot (6') wide (minimum) concrete sidewalk
within a one hundred-foot (100') wide landscape area (not including right-of-way) along the portion of the
Property adjacent to Eagle Road. The possible construction of a sidewalk connecting the sidewalk
required herein to the existing sidewalk located along Eagle Road approximately three hundred feet (300')
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south of the southwest corner of the Property was addressed as a part of the preliminary plat application
for the Property.
3.17 DMB shall provide and construct, in accordance with the provisions of Eagle City Code
Section 9-4-1-6 a minimum ten (10) foot wide public asphalt pathway in a landscaped strip located within
the Chevron Pipeline easement, the design and landscaping for which shall be reviewed and approved by
the Eagle Design Review Board prior to the submittal of the final plat application(s) wherein the pathway
is located. The asphalt pathway, but not the landscaped areas, shall be located in an easement or
easements which shall be dedicated to and accepted by Eagle as provided in Eagle City Code Section 9-4-
1-6:E.2, upon recordation of the final plat(s) wherein the pathway is located
3.18 DMB shall provide bus stops as may be recommended by Eagle.
3.19 Building placement shall be designed such that parking areas are not concentrated
between the buildings and Eagle Road. The parking areas depicted on the Conceptual Plan for Area 0
depicted on Exhibit A3 are not considered to be concentrated between the buildings and Eagle Road. The
side of any buildings facing Eagle Road shall be provided with architectural design elements and
architectural relief, as may be approved by the Eagle Design Review Board.
3.20 DMB shaH keep and maintain for use on the Property such irrigation water rights as are
reasonably required in order to provide a pressurized irrigation system or systems for all landscaped areas
on the Property. In the event that DMB desires to transfer, sell or convey any excess water rights (that is,
water rights not necessary to provide an adequate source of irrigation water for the landscaped areas on
the Property), DMB shall first submit to Eagle reasonable written evidence that such water rights
proposed for transfer are not necessary to provide an adequate source of irrigation water for the
landscaped areas on the Property, including Areas 0 and E, and reasonable written evidence of the
agreement to purchase said water rights by a third party purchaser and the price and complete terms
agreed to be paid therefor. Eagle shaH have forty-five (45) days after receipt of said notice within which
to elect, in writing, to purchase such water rights upon the same terms which DMB is to receive from said
third party purchaser, whereupon the water rights shall be sold to Eagle on such terms and conditions,
each party being bound thereby. In the event Eagle shall not have given written notice of its intent to
purchase the water rights within the said forty-five (45) day period, the first right of refusal created hereby
shall terminate and DMB shall be entitled to sell its water rights free of any right or claim of right by
Eagle. DMB shall have no obligation to Eagle hereunder in the event DMB sells, transfers or conveys
any such excess water rights to any person or entity affiliated with DMB. As used herein, an affiliated
person or entity is one which owns, is owned by, or shares any common ownership with DMB.
3.21 Subject to the conditions and limitations set forth herein, DMB shall provide a park site
along the eastern boundary of the Property in Area J as generally depicted in Exhibit A2 attached hereto
(hereinafter "Park Site") which Park Site is to be developed, owned and maintained by and at the expense
of Eagle. DMB's obligations to provide said Park Site shall be fulfilled as follows:
A. Upon recordation of a final plat of any portion of the Property, DMB shall enter
into an agreement to lease the Park Site to Eagle for use as a public park or for other public purposes
reasonably acceptable to DMB, such purposes and terms to be specified in the lease agreement. Said
lease agreement shall include, among other provisions acceptable to DMB and Eagle, a provision
permitting DMB to use and occupy the Park Site for grazing or other uses not inconsistent with this
Development Agreement and DMB's development project until such time as Eagle is prepared to fully
develop the public facilities thereon.
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B. Upon completion of a road or roads constructed to ACHD standards by DMB to
provide public access to the Park Site, DMB shall dedicate the Park Site to Eagle, which such dedication
shall be subject to the following restrictions and reservations:
I. The Park Site shall be restricted for use only as a public park and shall
act as a non-residential buffer for Boise City's waste water treatment facility and any expansions thereof,
located easterly of the Property.
2. Dedication of the Park Site shall be subject to all reservations,
restrictions and easements established of record or by use upon the Premises. Subject to the provisions of
subparagraphs 4 and 5 below, (a) no such reservations, restrictions and easements made by DMB shall
impair the future use of the Park Site by Eagle as described in this Development Agreement; and (b) the
Park Site shall not be made subject to any restrictive covenants DMB may impose upon any other portion
of the Property.
3. Eagle shaH obtain DMB's written approval for any and all improvements
to be made to the Park Site prior to the commencement of construction or installation thereof, such
approval not to be unreasonably withheld or delayed over thirty (30) days from the date sent to DMB.
Failure of the DMB to respond to the City within the 30-day period is deemed as approved by the DMB.
4. The dedication shaH be subject to a reversionary interest in DMB in the
event that at least fifty percent (50%) of the total area of the Park Site has not been developed for use as a
park or other public purposes reasonably acceptable to DMB within five (5) years after the date of
dedication thereof to Eagle. Once fifty percent (50%) of the total area of the Park Site has been
developed, the reversionary interest is extinguished.
5. The dedication shall be subject to a reservation of a public road right-of-
way of up to 100 feet in width along the southerly boundary of the Park Site as generally depicted in
Exhibits Al and A2 attached hereto for a public road connection to the east.
C. In the event Eagle shall desire to develop the Park Site (or a portion thereof) for a
use approved by DMB pursuant to the provisions of subparagraph B.3., above, prior to the completion of
construction of a public road as described in subparagraph B, above, Eagle may so advise DMB thereof in
writing and DMB shall dedicate to Eagle the portion of the Park Site which Eagle intends to develop and
shall provide Eagle a temporary easement for access thereto, subject to the following:
I. The location of the temporary access easement shall be reasonably
determined by DMB.
2. DMB shall, within 120 days of Eagle's request therefor, weather
permitting, rough grade a 20 foot wide temporary roadway in the temporary easement area. Eagle shall
be responsible for all other necessary roadway improvements as may be approved by DMB, such
approval not to be unreasonably withheld.
3. Eagle shaH be responsible for the maintenance and repair of the
temporary roadway and shall provide for dust abatement thereon.
4. DMB may, at DMB's cost, relocate the temporary roadway, provided
that such relocation shall not materially interfere with access to the Park Site.
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5. The temporary easement, or any unnecessary portions thereof, shall
terminate as construction of a public road providing access to the Park Site is completed.
6. Eagle shall defend, indemnify and hold DMB and its directors, officers,
agents, employees, successors and assigns harmless from any and all claims, actions, causes of action,
damages or liabilities of any description ("Claims") arising out of or in any manner connected with the
use of the temporary easement and roadway, except Claims arising out of the intentional or willful
misconduct ofDMB and its directors, officers, agents, employees, successors and assigns.
D. DMB's dedication of the Park Site shall include any and all water rights and/or
water shares or certificates evidencing the same, which are appurtenant to the Park Site, the amount or
number of which shall be calculated on a proportionate basis with the rights appurtenant to the Property;
provided that Eagle shall be responsible, at Eagle's sole cost and expense, to (a) deliver irrigation water to
DMB's property at the western boundary of the Park Site at such locations as may be required for the
continued flood irrigation of DMB's property, it being understood and recognized that DMB presently
has a right to receive irrigation water at three locations along the eastern boundary of the Park Site and,
unless otherwise agreed, will require delivery of irrigation water at three locations westerly thereof in the
locations depicted on Exhibit D attached hereto; and (b) to take such action as may be required in order
to prevent irrigation and other surface water from flowing, migrating or draining onto DMB's property
located westerly of the Park Site. DMB shall not sell or otherwise transfer any water rights/shares
appurtenant to the Park Site prior to its dedication to Eagle nor shall DMB impair or impede the existing
works which deliver irrigation water to the Park Site.
E. To the extent permissible under the law, DMB shall be entitled to claim any
available income tax benefits which may arise out of DMB's donation (and, if applicable, development)
of the Park Site as set forth herein, and Eagle shall cooperate with DMB in seeking any such tax benefits.
F. In the event Eagle shall desire to develop the Park Site (or a portion thereof) for a
use approved by DMB pursuant to subparagraph B.3., above, DMB shall, within 120 days of Eagle's
request therefor, weather permitting, provide rough grading and general contouring in conformance with
such approved plans on a phase by phase basis as the Park Site is developed. Nothing contained herein
shall be construed to require DMB to construct any improvements beyond rough grading and general
contouring, including but not limited to irrigation or drainage facilities nor shall DMB be obligated to
import any material to the Park Site in order to perform such rough grading and general contouring.
3.22 Considerations specifically regarding gravel extraction operations and stub streets to
adjacent properties will be addressed as part of the City's review of any preliminary and final plat
applications for the Property.
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
An affidavit of all owners of the Property agreeing to submit the Property to this Development
Agreement and to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section
8-10- I shall be provided and is incorporated herein by reference.
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ARTICLE V
DEFAULT
5.1 In the event Applicant or any successor fails to comply with the commitments set forth
herein, within thirty (30) days of written notice of such failure from Eagle, Eagle shall have the right,
without prejudice to any other rights or remedies, to enjoin such violation and otherwise enforce the
requirements contained in this Development Agreement or to terminate the Development Agreement
following the process established in Eagle City Code Section 8-10-1. However, if a default occurs after
the Property is divided, any termination shall only affect the lot or parcel in default and shall not affect
other portions of the Property.
5.2 If required to proceed in a court of law or equity to enforce any prOVISIOn of this
Development Agreement, the enforcing party shall be entitled to recover all direct out-of-pocket costs so
incurred to cure or enjoin such default and to enforce the commitments contained in this Development
Agreement, including attorney's fees and court costs.
5.3 If any term, provision, commitment, or restriction of this Development Agreement or the
application thereof incorporated for the benefit of Eagle shall be held invalid or unenforceable and not
voluntarily adhered to by Applicant and their successors notwithstanding any such invalidity or
unenforceability, the remainder of this instrument shall terminate and the zoning of the Property (except
that portion thereof for which a plat has been recorded or which has otherwise been improved in
accordance with the provisions of this Development Agreement) shall revert to the A-R (Agricultural
Residential) zoning designation, unless the portion of this instrument determined to be invalid or
unenforceable is re-negotiated in good faith between Applicant (or other appropriate party) and Eagle as
an amendment to this Development Agreement processed in accordance with the notice and hearing
provisions ofIdaho Code 967-6509 and Eagle City Code Section 8-10-1.
ARTICLE VI
UNENFORCEABLE PROVISIONS
Subject to terms of Section 5.3 above, if any term, provision, commitment, or restriction 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 shall nevertheless remain in full force and
effect and that portion determined to be invalid or unenforceable shall be re-negotiated in good faith
between Applicant (or other appropriate party) and Eagle.
ARTICLE VII
ASSIGNMENT AND TRANSFER
After its execution, the Development Agreement shall be recorded in the office of the County
Recorder at the expense of Applicant. Each commitment and restriction contained herein shall be a
burden on the Property and shall be appurtenant to and for the benefit of the Property and shall run with
the land. This Development Agreement shall be binding on Eagle and Applicant and owners, and their
respective heirs, administrators, executors, agents, legal representatives, successors and assigns; provided,
however, that if all or any portion of the Property is divided, each owner of a legal lot shall only be
responsible for duties and obligations associated with an owner's parcel and shall not be responsible for
duties and obligations or defaults as to other parcels or lots within the Property. The new owner of the
Property 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 commitments and other obligations arising
under this Development Agreement with respect only to such owner's lot or parcel.
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ARTICLE VIII
GENERAL MATTERS
8.1 Amendments. Any alteration or change to this Development Agreement shall be made
only after complying with the notice and hearing provisions of Idaho Code Section 67-6509, as required
by Eagle City Code Section 8-10-1.
8.2 Exceptions and Variances. Nothing in this Development Agreement shall be construed to
prevent Applicant, nor shall Applicant otherwise be prevented, from seeking, by appropriate application
thereof, approval for such waivers, exceptions or variances as may be authorized by the provisions of the
Eagle City Code.
8.3 Paragraph 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 of Idaho 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 Notices. Any notice which a party may desire to give to another party must be in writing
and may be given by personal delivery, by mailing the same by registered or certified mail, return receipt
requested postage prepaid, or by Federal Express or other reputable overnight delivery service, to the
party to whom the notice is directed at the address of such party set forth below.
Eagle:
City of Eagle
310 E. State Street
Eagle, Idaho 83616
With Copy to:
Susan E. Buxton
Moore Smith Buxton & Turcke, Chtd.
950 W. Bannock Street, Suite 520
Boise, Idaho 83702
DMB:
DMB, Inc.
Attn: Dennis M. Baker
250 S. Beechwood, Suite 120
Boise, Idaho 83709
With Copy to:
Stephen A. Bradbury
Williams Bradbury, PC
1015 West Hays Street
Boise, ID 83702
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ELC:
c/o Poag & McEwen Lifestyle Centers, LLC
6410 Poplar Avenue, Suite 850
Memphis, Tennessee 38119
Attn: Joshua D. Poag
cc: Robert L. Rogers, Jr.
With a Copy to:
Bass, Berry & Sims PLC
315 Deaderick Street, Suite 2700
Nashville, Tennessee 37238
Attn: Lori B. Morgan
Christopher L. Haley
And With a Copy to:
JoAnn C. Butler
Spink Butler, LLP
251 East Front Street, Suite 200
Boise, Idaho 83702
or such other addresses and to such other persons as the parties may hereafter designate as provided
herein. Any such notice shall be deemed delivered upon personal delivery twenty-four (24) hours after
deposit with Federal Express or other reputable overnight delivery service, or three (3) days after deposit
in the United States mail, if sent by mail pursuant to the foregoing.
8.6 Effective Date. This Development Agreement shall be effective upon recordation of a
fully executed and notarized original of this Development Agreement.
CONCLUSIONS OF LAW:
1. The application for this item was received by the City of Eagle on April 12, 2007.
2. Notice of Public Hearing on the application for the Eagle City Council was published in
accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on
May 14,2007. Notice of this public hearing was mailed to property owners within three-hundred
feet (300-feet) of the subject property in accordance with the requirements of Title 67, Chapter
65, Idaho Code and Eagle City Code on May 2, 2007. The site was posted in accordance with the
Eagle City Code on May 18, 2007.
3. The Council reviewed the particular facts and circumstances of this proposed rezone modification
(RZ-05-02 MOD) with regard to Eagle City Code Section 8-7-5 "Action by the Commission and
Council", and based upon the information provided concludes that the proposed rezone is in
accordance with the City of Eagle Comprehensive Plan and established goals and objectives
because:
a. The zoning designation ofMU-DA (Mixed Use with a development agreement) are in
accordance with the Mixed Use designation shown on the Comprehensive Plan Land
Use Map;
b. The information provided from the agencies having jurisdiction over the public
facilities needed for this site indicate that public facilities exist to serve any and all
uses allowed on this property under the zone.
c. The MU-DA (Mixed Use with a development agreement) zone has previously been
determined to be compatible with the zoning and land uses to the south, north, west
and east;
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d. The land is not located within a "Hazard Area" or "Special Area" as described within
the Comprehensive Plan; and
e. No non-conforming uses are expected to be created with this rezone if the
development agreement as proposed is required and subsequently complied with.
DA TED this 10th day of July 2007.
CITY COUNCIL
OF THE CITY OF EAGLE
Ada County, Idaho
:t:~~
ATTEST:
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--- Sharon . Bergmann, Eagle City C erk
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