Findings - CC - 2008 - RZ-20-07 MOD - Mod Cond Of Development Remove Requirmts To Re-Subdivide/4.73 Acre/600 N Balla
BEFORE THE EAGLE CITY COUNCIL
IN THE MATTER OF AN APPLICATION )
FOR A MODIFICATION TO THE REZONE )
WITH DEVELOPMENT AGREEMENT FOR )
JEOFFREY AND COLETTE NYBORG )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CASE NUMBER RZ-20-07 MOD
The above-entitled rezone with development agreement modification application came before the Eagle
City Council for their decision on October 14, 2008. The 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:
Jeoffrey and Colette Nyborg represented by Shawn Nickel are requesting a modification to
the development agreement (Instrument # 1 08061857) of Conditions of Development # 3.4
to remove the requirement to re-subdivide the existing lot and allow an administrative
parcel division. The 4.73-acre site is generally located on the northeast comer ofN.
Ballantyne Lane and Hereford Drive within Bakers Acres Subdivision at 660 N.
Ballantyne Lane.
B. APPLICA TION SUBMITTAL:
The application for this item was received by the City of Eagle on August 21, 2008.
C. NOTICE OF PUBLIC HEARING:
Notice of Public Hearing on this 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 September 29,2008. 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 October 19,
2008. The site was posted in accordance with the Eagle City Code on October 3,2008.
D. HISTORY OF RELEVANT PREVIOUS ACTIONS:
On April 29, 1975, the Ada County Board of County Commissioners approved and signed
the final plat for Bakers Acres Subdivision for Kenneth W. and Nona E. Baker.
On March 29, 1976, Ada County Local Planning Administration issued a Zoning
Certificate (ZC 76-350) to Ken Baker to construct a single-family dwelling on Lot 16,
Block 1, Baker's Acres Subdivision.
On August 25, 1976, Ada County Local Planning Administration issued a Zoning
Certificate (ZC 76-1008) to Ken Baker to construct an accessory structure (garage for
single-family dwelling) on Lot 16, Block 1, Baker's Acres Subdivision.
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On December 23, 1976, the Eagle City Council approved Ordinance No. 30 annexing
Baker's Acres Subdivision into the City of Eagle.
On September 8, 1977, Kenneth W. and Nona E. Baker sold the south 305' of Lot 15 and
16 of Baker's Acres Subdivision to Lester Phil and Lawana Nyborg.
On January 9, 1997, Lester P. Nyborg and LaWana Nyborg conveyed the south 305' of
Lots 15 and 16, Baker's Acres Subdivision to the "The Phil and LaWana Family Trust".
On April 7, 1999, Lester Phil Nyborg conveyed the south 305' of Lot 15, Bakers Acres
Subdivision, to Jeoffrey and Colette Nyborg.
On April 18, 2001, the Baker's Acres Subdivision Homeowners Association recorded and
amendment to the original Baker's Acres Subdivision CC&Rs recorded April 29, 1975
(Instrument #7508928). The amended CC&Rs recognized the subject property as two
separate parcels.
On January 8, 2008, the Eagle City Council approved a rezone (RZ-20-07) from A-R
(Agricultural-Residential) to R-E-DA (Residential-Estates with a development agreement)
for the south 305' of Lot 15 and 16 of Bakers Acres Subdivision for Colette Nyborg.
E. COMPREHENSIVE PLAN LAND USE MAP AND ZONING MAP DESIGNATIONS:
COMPPLAN ZONING LAND USE
DESIGNATION DESIGNATION
Existing Residential One A-R (Agricultural- Single Family Residential
Residential)
Proposed No Change R-E-DA (Residential- Single Family Residential
Estates with a development
agreement)
North of site Residential One A-R (Agricultural- Single Family Residential
Residential) Bakers Acres Subdivision
South of site Residential One A-R (Agricultural- Single Family Residential
Residential) Bakers Acres Subdivision
East of site Residential One A-R (Agricultural- Single Family Residential
Residential) Bakers Acres Subdivision
West of site Residential One R-2-DA-P (Residential with Single Family Residential
a development agreement, Subdivision (Countryside
PUD) Estates)
F. DESIGN REVIEW OVERLAY DISTRICT: Not in the DDA, TDA, CEDA or DSDA.
G. TOTAL ACREAGE OF SITE: +/- 4.73-acres
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H. APPLICANT'S STATEMENT OF JUSTIFICATION FOR THE REZONE MODIFICATION:
See applicant's justification letter attached to the staff report and incorporated herein by
reference.
1. PUBLIC USES SHOWN ON FUTURE ACQUISITIONS MAP: No map currently exists.
J. NON-CONFORMING USES: None are apparent on the site.
K. AGENCY RESPONSES:
The following agencies have previously responded with the original application (RZ-20-
07) and their correspondence is attached to the staff report and incorporated herein by
reference:
ACHD - Recommending that the applicant schedule a pre-application meeting prior to
submitting a development application.
DEQ - Request that all projects consider state, and federal rules and regulations for air,
water, waste, and overall environment
Central District Health - No objection
Chevron Pipeline - No objection
Eagle Fire Department - Addressing International Fire Code, Section 503.2.5 addressing
minimum fire flows for single-family dwellings
L. LETTERS FROM THE PUBLIC: None received to date
ST AFF ANALYSIS PROVIDED WITHIN THE STAFF REPORT:
A. COMPREHENSIVE PLAN PROVISIONS, WHICH ARE OF SPECIAL CONCERN REGARDING
THIS PROPOSAL:
The Comprehensive Plan Land Use Map, adopted February 13, 2007, designates this site as
Residential One:
"Suitable primarily for single family residential development within areas that are rural in
character. Maximum density of up to 1 unit per 1 acre".
6.5 Land Use Objectives
c. To discourage lot splits in approved subdivisions
B. ZONING ORDINANCE PROVISIONS, WHICH ARE OF SPECIAL CONCERN REGARDING
THIS PROPOSAL:
. Eagle City Code Section 8-1-2 defines Nonconforming Use as:
A building, structure or use of land existing at the time of enactment of this title, and
which does not conform to the regulations of the district in which it is situated.
. Eagle City Code Section 8-1-2 defines Lot of Record as:
A lot which is a part of a subdivision recorded in the office of the county recorder; or a lot
or parcel described by metes and bounds, the description of which has been so recorded.
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C. SUBDIVISION ORDINANCE PROVISIONS WHICH ARE OF SPECIAL CONCERN
REGARDING THIS PROPOSAL:
. Eagle City Code Section 9-1-6 defmes Lot as:
A parcel, plot, tract, or other land area of sufficient size to meet minimum zoning
requirements for use, coverage and area, and created by subdivision for sale, transfer, or
lease, and to provide such yards and other open spaces as are herein required. Such lot shall
have frontage, as may be required within this code, on an improved public street, or on an
approved private street, and may consist of:
A. A single lot of record;
B. A portion of a lot of record; and
C. A combination of complete lots of record, or of portions of lots of record.
. Eagle City Code Section 9-1-6 defmes Original Parcel of Land as:
Any unplatted contiguous parcel of land held in one ownership as of November 15,
1983.
. Eagle City Code Section 9-1-6 defmes Subdivision as:
The result of an act of dividing any lot, tract or parcel of land into two (2) or more parts
for the purpose of transfer of ownership or development, which shall also include the
dedication of a public street and the addition to, or creation of, a cemetery. Subdivisions
shall be divided into "minor subdivision", "major subdivision" and "large scale
development", as those terms are defined in this section. However, this title shall not apply
to any of the following:
A. An adjustment of lot lines as shown on a recorded plat which does not reduce the
area, frontage, width, depth or building setback lines of each building site below
the minimum zoning requirements, and does not increase the original number of
lots in any block of the recorded plat;
. Eagle City Code Section 9-2-8 Parcel Division:
Any time that an original parcel of land is divided or partitioned into not more than two
(2) parcels, thereby creating an additional parcel for the transfer of ownership or
development, the following application process and procedures shall be followed:
B. Procedure: Prior to approving an application under this section, the city council
shall make the following findings:
1. The minimum requirements under this code for acreage, density, lot area
and setback lines have been complied with;
2. The proposed parcel division is in conformity with the comprehensive plan;
and
3. The proposed parcel division is in the public interest and will not adversely
impact adjoining property interests.
D. DISCUSSION:
. The applicant is requesting a modification to the "Conditions of Development" for the
development agreement (Instrument No. 108061857) associated with RZ-20-07 for Colette
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Nyborg. The Nyborgs are requesting a modification of Conditions of Development # 3.4 to
remove the requirement to re-subdivide the existing lot and allow an administrative parcel
division. In the narrative submitted by the applicant's representative date stamped by the City
on August 21, 2008, the applicant is requesting the modification due to the improvements
required by the affected agencies is making the Nyborg's ability to split their property
financially impossible. Pursuant to Eagle City Code a lot within a platted subdivision cannot
be divided through an administrative parcel division hence the Condition of Development
placed in the development agreement requiring the re-subdivision of the property.
Condition of Development #3.4 reads as follows:
3.4 The applicants shall be required to work with adjacent property owners to the north to
complete a Lot Line Adjustment for Lot 15 and Lot 16, Block 1 of Baker's Acres
Subdivision. The applicant shall submit a preliminary plat application for the re-
subdivision of the southern half of Lot 15 and Lot 16, Block 1 to be reviewed and
approved by the City prior to an adoption of an ordinance to rezone the Nyborg Property.
F ai/ure to submit a preliminary plat application to the City within six (6) months from the
date of approval of a rezone shall cause all approvals of said rezone to be null and void.
. The aforementioned history of relevant previous actions describes the sequence of events that
led to the eventual creation of the parcels in question.
o On April 29, 1975, the Ada County Commissioners approved and signed the final plat for
Bakers Acres Subdivision for Kenneth W. and Nona E. Baker.
o On March 29, 1976, a Zoning Certificate (ZC 76-350) was issued by Ada County
Planning Administration to Ken Baker to construct a single-family dwelling on Lot 16,
Block 1, Baker's Acres Subdivision. It should be noted that the original home located on
the property prior to Bakers Acres Subdivision being platted was located on the same lot
the new single-family dwelling was being constructed; therefore upon completion of the
new single-family dwelling there were now two (2) single-family dwellings located on Lot
16.
I Lot 16 I
G
Original homesite
Const. 1937
I Lot 15 I
o
Hereford Drive
o On August 25, 1976, a Zoning Certificate (ZC 76-1008) was issued by Ada County
Planning Administration to Ken Baker to construct an accessory structure (garage for
dwelling) on Lot 16, Block 1, Bakers Acres Subdivision. This garage was constructed in
close proximity to the new single-family dwelling.
o The City of Eagle annexed Bakers Acres Subdivision on December 23, 1976, and gave it a
zoning designation of A-R (Agricultural-Residential- up to one unit per five (5) acres).
o Since there were then two (2) single-family dwellings located on Lot 16, Kenneth and
Nona Baker sold the new single-family dwelling and the south 305' of Lot 15 and 16
(warranty deed description) of Bakers Acres Subdivision to Lester and Lawana Nyborg on
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September 8, 1977. The parcel as described on the warranty deed met the minimum lot
size requirements of the A-R (Agricultural-Residential- up to one unit per five (5) acres)
zoning designation. The original platted line dividing Lot 15 from Lot 16 ran north and
south. Upon the sale of the property to the Nyborgs a new description of the parcel was
created through the warranty deed description describing the south 305' of Lot 15 and Lot
16 creating a property line bisecting Lot 15 and Lot 16 from east to west. It is unknown
why the County recognized the warranty deed description as a transferable lot within a
platted subdivision without an accompanying lot line adjustment record of survey. With
the sale of the property to the Nyborgs it addressed the issue of the two (2) single-family
dwellings located on Lot 16, and eliminated the non-conforming use by separating the two
(2) single-family dwellings onto separate parcels while addressing the minimum lot area of
the respective zone. The new single-family dwelling the Ada County Assessor's Office
assigned new parcel numbers to the four (4) parcels created through the warranty deed
description dividing the two (2) lots (Lots 15 & 16) from east to west. It should also be
noted that the parcels recognized by the Assessor's office did not meet the minimum area
requirements of the A-R (Agricultural-Residential- up to one unit per five (5) acres)
zoning designation. Normally when a lot line adjustment is reviewed and approved a new
record of survey showing the line to be adjusted and new legal descriptions for the
amended parcels are recorded. With the recordation of the record of survey and new legal
descriptions eliminates the creation of the additional parcels, as is the case with the
Nyborg property.
[3-1 Original homesite I - L
-
------------------ ------------------
-
Home
0- sold
to
Nyborg
6
I Lot 16 I
South 305' of
Lots 15&16
sold 1977
Parcel sold to
Jeoffrey and
Colette
Nyborg
Hereford Drive
o Due to the improper line lot adjustment and the new parcel numbers being issued by the
Ada County Assessors Office, Phil and LaW ana Nyborg received separate tax notices for
the south 305' of Lot 15 and the south 305' of Lot 16. Since Phil and LaWana Nyborg
were receiving separate tax notices they assumed the parcels were separate and sold the
south 305' of Lot 15, Bakers Acres Subdivision, to their son and daughter-in-law Jeoffrey
and Colette Nyborg, on April 7, 1999, and retained the south 305' of Lot 16 with the
existing home for themselves. Upon the sale of the parcel to Jeoffrey and Colette Nyborg
neither that parcel nor the parcel retained by Phil and LaWana Nyborg complied with the
minimum area requirements of the A-R (Agricultural-Residential - up to one unit per five
(5) acres) zoning designation; therefore two (2) non-conforming parcels were created.
o On April 18, 2001, the Bakers Acres Homeowner's Association (HOA) amended the
CC&R's to recognize Lots 15 & 16 as each consisting of two separate parcels of two and
one half (2 112) acres each. Although CC&R's may address the division of parcels or the
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adjustment of lot lines within platted subdivisions a HOA does not have the authority to
recognize parcel divisions for the purpose of transfer of ownership or development. The
amendment of the CC&Rs does not supersede Eagle City Code requirements of a rezone
and/or lot split approval. The CC&Rs also cannot recognize the parcels which were
created as "conforming" parcels eligible for building permit. Upon approval of a
preliminary plat and the subsequent approval of a final plat the separate parcels (lots)
owned by the Nyborgs will be eligible for building permits.
. The Ada County Assessor's office assigns parcels numbers pursuant to state statute. Although
parcels are created and then numbered the action is for identification and assessment purposes only
and not to be confused with whether or not they are transferable or developable. State statute
provides for subdivision of property to be controlled through local ordinances. The applicant's
states in the submitted narrative date stamped by the City on August 21, 2008, that the R-E
(Residential - Estates up to one dwelling unit per two (2) acres) zoning designation would allow
for a two (2) acre minimum lot size which would allow the Nyborgs the realization of the land use
that was expected.
Staff has the following concerns regarding the aforementioned statement, 1) why was the property
not sold to Jeoffrey and Colette Nyborg for approximately twenty-two (22) years after Phil and
LaWana purchased the property from Kenneth and Nona Baker; and 2) why were the Bakers
Acres Subdivision CC&R's not amended recognizing the separate parcels until twenty-four (24)
years after Phil and LaWana Nyborg purchased the property from Kenneth and Nona Baker and
two (2) years after Phil and LaWana Nyborg sold the property to Jeoffrey and Colette Nyborg?
It is unknown who initiated the amendment to the CC&Rs associated with the Baker's Acres
Subdivision recognizing Lots 15 and 16 to have two (2) separate parcels of two and on half (2 Y2)
acres each. Since the original plat of Baker's Acres Subdivision showed Lots 15 & 16, as two (2)
lots and not as four (4) separate parcels staff questions if at anytime one of the owners of Lots 15
& 16, ever contacted the city to ascertain whether or not the property was divided legally or if
building permits would be available to the additional parcels. With the sale of the south 305' of
Lot 15 separating it from the south 305' of Lot 16, are-subdivision of Baker's Acres Subdivision
has occurred without the going through the proper subdivision application process. It should also
be noted that the Baker's Acres Subdivision plat contains a statement on the first page in the lower
left hand comer indicating that any future resubdivision ofthis plat will comply with the
provisions of applicable laws and regulations in effect at the time of resubdivision. Therefore, with
the additional parcels being created and the subsequent amendment of the CC&Rs, the applicant
and the CC&Rs are not in compliance with applicable laws and regulations of the City of Eagle or
the recorded plat for Baker's Acres Subdivision.
. A preliminary plat application was submitted to the City of Eagle on May 8, 2008, for Blackbird
Subdivision pursuant to Condition of Development #3.4 of the development agreement. The
application was reviewed by staff and scheduled for a Planning and Zoning Commission public
hearing to occur on July 7, 2008. Staff requested the hearing to be continued to July 21, 2008, to
provide additional time for Ada County Highway District (ACHD) to provide comment. After
reviewing the affected agencies requirements for the subdivision the applicant requested that the
preliminary plat application be remanded to staff. Following the preliminary plat application being
remanded the applicant subsequently submitted the Development Agreement Modification
application.
. Pursuant to Condition of Development #3.4 the applicant was also required to work with the
adjacent property owner to the north to complete a Lot Line Adjustment for Lot 15 and Lot 16,
Block 1, of Baker's Acres Subdivision. The city was provided a copy of a letter on October 2,
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2007, addressed to SLN Planning, Inc., Shawn L. Nickel, from Toni Smith (adjacent property
owner north ofNyborgs) indicating if the Nyborgs were required to reconfigure their lots to justifY
the proposed rezone, that Toni and Jeff (Toni's husband) would be willing to work with them on a
lot line reconfiguration (Lot Line Adjustment). To date the applicant has not submitted a Lot Line
Adjustment application.
STAFF RECOMMENDATION PROVIDED WITHIN THE STAFF REPORT MEMORANDUM:
Based on the aforementioned concerns, Land Use Objectives within the Comprehensive Plan
discouraging lots splits within existing subdivisions, and requirements pursuant to Eagle City
Code, staff recommends denial of the development agreement modification as proposed.
PUBLIC HEARING OF THE COUNCIL:
A. A Public hearing on the application was held before the City Council on June 10, 2008, at which
time public 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 (not including
the applicant/representative)
C. Oral testimony in opposition to this proposal was presented to the City Council by no one.
COUNCIL DECISION:
The Council voted 4 to 0 to approve RZ-20-07 MOD for a modification to the Conditions of
Development of the development agreement (Instrument #108055908) for Jeoffrey and Colette
Nyborg, with the following strike through text to be deleted from the Conditions of Development
of the previously approved development agreement and underlined text to be added to the
Conditions of Development of the previously approved development agreement:
3.4 The applicants shall be req\:lired to work 'Nith adjacent prElperty owners to the Borth to
eomplete a Lot LiRe ,^.dj\:lstffient for Lot 15 and Lot 16, Blade 1, of Baleer's ,A.cres
S\:lbdiyision. The applieant sball s\:lbmit a preliminary plat application for the re
s\:lbdivisioR of the somhem half of Lot 15 and Lot 16, Bloek 1 to be reviewed and
approved by the City prior to an aaoptiofl of an ordinanee to re:wne the Nyborg Property.
Failure to s\:lbmit a preliminary plat applieation to the City within sh( (6) mostfls from the
date of approval of a reZOS6 shall eause all approvals of said rezone to be n\:lll and void.
The applicant shall submit a Parcel Division application to be reviewed and approved by
the City. Upon approval of a Parcel Division the applicant shall record the approved
record of survey showing the parcel division and provide a COPy to the city prior to the
issuance of a building permit on the southern half of Lot 15, Block 1.
3.6 The residential dwelling unit located at 660 N. Ballantyne Road shall be allowed to remain
at its current location. The front yard setback for the dwelling located at 660 N. Ballantyne
Lane is thirty feet (30'). Should the dwelling be replaced the new dwelling shall meet the
setback requirements for the R-E (Residential-Estates-up to one unit per two acres) zone.
3.7 The accessory structures adiacent to the western property line shall be allowed to remain at
their current locations. The side yard setbacks for the accessory structures located adiacent
to the western boundary line at 660 N. Ballantyne Lane is forty five feet (45'). Should the
accessory structures be removed or replaced, a new accessory structure shall meet the
setback requirements for the R-E (Residential Estates-up to one unit per two acres) zone.
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CONCLUSIONS OF LAW:
1. The application for this item was received by the City of Eagle on August 21, 2008.
2. Notice of Public Hearing on this 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 September 29,
2008. 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 October 19, 2008. The site was posted in accordance with the Eagle City Code
on October 3,2008.
3. The Council reviewed the particular facts and circumstances of this proposed rezone modification (RZ-
20-07 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 requested zoning designation ofR-E-DA (Residential-Estates with a development
agreement) is in accordance with the Residential One land use designation shown on the
Comprehensive Plan Land Use Map;
b. The proposed zoning designation ofR-E-DA (Residential-Estates with a development
agreement) will allow the existing parcels to meet the minimum lot size requirements
which will accommodate the placement and construction of a dwelling unit on the vacant
parcel;
c. The proposed zoning designation ofR-E-DA (Residential-Estates with a development
agreement) is compatible with the R-2-DA-P (Residential-two units per acre with a
development agreement, PUD) zone and land use to the west since that area contains
single family dwellings on lots as small as 11,000 square feet;
d. The proposed zoning designation of R-E-DA (Residential-Estates with a development
agreement) is compatible with the A-R (Agricultural-Residential - one unit per five (5)
acres maximum) zone and land uses to the north, south, and east, since those areas are
designated Residential One in the Comprehensive Plan and could be developed in a
similar manner; and
e. The land proposed for rezone is not located within a "Hazard Area" and "Special Area" as
described within the Comprehensive Plan; and
f. No non-conforming uses are expected to be created with this rezone.
g. The existing parcel configuration associated with the proposed rezone has existed since
1977 and is recognized as two (2) separate parcels of two and one half (2 Y2) acres each by
the adopted CC&R's as amended for Baker's Acres Subdivision; therefore, this rezone
shall not be considered as establishing a binding precedent to grant other rezones within
Baker's Acres Subdivision.
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DATED this 12th day of November 2008.
CITY COUNCIL
OF THE CITY OF EAGLE
Ada County, Idaho
Phil
ATTEST:
Jl~L_~
Sharotl K. Bergmann, agle City lerk
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