Findings - CC - 2016 - AA-06-15/DR-17-14MOD - Removal Of Fence/Creek Water Subd Common AreaBEFORE THE EAGLE CITY COUNCIL
IN THE MATTER OF AN APPEAL OF THE )
DESIGN REVIEW APPLICATION REGARDING )
A MODIFICATION TO THE COMMON )
AREA LANDSCAPING WITHIN CREEK )
WATER SUBDIVISION PERTAINING TO THE )
DISALLOWANCE OF A FENCE AROUND )
THE IRRIGATION POND FOR BILL BARROS )
AND REQUEST FOR MEDIATION )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CASE NUMBER AA- 06- 1S/DR -17 -14 MOD
The above - entitled appeal came before the Eagle City Council for their action on January 26, 2016. The
above - entitled request for mediation came before the Eagle City Council for their action on February 23,
2016. The Eagle 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:
Bill Barros, represented by Hethe Clark with Spink Butler, is appealing the Design Review Board
decision regarding the requirement to remove the non - approved fence previously constructed
around the irrigation pond within the Creek Water Subdivision common area. The 12.7 -acre site
is located on the south side of West Floating Feather Road approximately'/ -mile east of Park Lane
at 3577 and 3395 West Floating Feather Road.
The design review modification application (DR -14 -17 MOD) and this appeal apply only to the
common area and fence located in the vicinity of the irrigation pond. All other common area
improvement approvals which were part of DR -17 -14 remain valid (reference Design Review
Board findings of fact and conclusions of law document, dated April 24, 2014, incorporated
herein by reference).
B. APPLICATION SUBMITTAL:
The City of Eagle received the design review modification application for this item on September
15, 2015.
The City of Eagle received the appeal application for this item on November 13, 2015.
C. HISTORY OF RELEVANT PREVIOUS ACTIONS:
On July 5, 2006, the Planning and Zoning Commission recommended approval of an annexation,
rezone with development agreement, and preliminary plat applications for Gray Eagle Subdivision
(A- 06 -06/RZ -06- 061PP- 06 -06).
On January 16, 2007, the City Council remanded the applications to staff for Gray Eagle
Subdivision (A- 06- 06/RZ- 06- 06/PP- 06 -06). Due to inactivity on these applications, the
applications were considered withdrawn.
On September 3, 2013, the Planning and Zoning Commission recommended approval of an
annexation, rezone with development agreement, and preliminary plat (A- 02- 13/RZ -03 -13 & PP-
03-13) for the Creek Water Subdivision.
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On October 8, 2013, the City Council approved an annexation, rezone with development
agreement, and preliminary plat (A- 02- 13/RZ -03 -13 & PP- 03 -13) for the Creek Water Subdivision
with the site specific conditions of approval and standard conditions of approval provided within
their findings of fact and conclusions of law document, dated October 22, 2013. The findings of
fact and conclusions of law are incorporated herein by reference.
On April 10, 2014, the Eagle Design Review Board approved a design review application (DR -17-
14) for the common area landscaping within Creek Water Subdivision with site specific conditions
of approval and standard conditions of approval provided within their findings of fact and
conclusions of law document, dated April 24, 2014. The findings of fact and conclusions of law
are incorporated herein by reference. The subdivision was constructed in accordance with this
approved plan, with the exception of the design of the irrigation pond and the installation of a fence
around the pond. No approval was granted for the design deviations to the pond nor for the
installation of the fence around the pond. The application was not appealed. The landscape plan
approval was considered final on May 9, 2014 (expiration of the fourteen (14) day appeal period
pursuant to ECC 8 -2A -14 APPEALS).
On April 10, 2014, Hernan W. (Bill) Barros signed the development agreement associated with the
Creek Water development.
On September 23, 2014, the Eagle City Council approved a final plat application for Creek Water
Subdivision (FP- 16 -14).
On June 15, 2015, the Design Review Board approved a design review sign application (DR -20-
15) for the subdivision entry monument signs for Creek Water Subdivision.
On October 22, 2015, the Eagle Design Review Board approved a design review modification
application (DR -17 -14 MOD) to modify the common area landscaping within Creek Water
Subdivision with the site specific conditions of approval and standard conditions of approval
provided within their findings of fact and conclusions of law document, dated November 12,
2015. The findings of fact and conclusions of law are incorporated herein by reference.
D. COMPANION APPLICATIONS: None
STAFF ANALYSIS PROVIDED WITHIN THE STAFF MEMORANDUM:
A. ZONING ORDINANCE PROVISIONS WHICH ARE OF SPECIAL CONCERN REGARDING
THIS APPEAL:
Eagle City Code Section 8- 2A -14: APPEALS:
A. Appeal Of The Design Review Board Decision: Any final decision by the design review board
may be appealed to the city council. Within fourteen (14) calendar days following the design
review board's adoption of findings of fact and conclusions of law, the appealing party shall file a
written notice of appeal with the city clerk before five o'clock (5:00) P.M. or close of business,
whichever occurs later, specifically identifying which requirements are appealed to the city
council and all reasons, factual and legal, why the decision of the design review board should be
overturned or modified.
B. Action By The City Council: Within twenty five (25) calendar days from receipt of the written
notice of appeal, the zoning administrator shall set a hearing date for the appeal to be heard by the
city council. The zoning administrator and the city attorney shall provide the appellant and the
city council with a written response to the notice of appeal, including any other documents filed
by the appellant, at least three (3) calendar days prior to the appeal hearing. After hearing the
appeal, the city council may approve, approve with supplementary conditions, or deny the appeal
as presented. Within fourteen (14) calendar days after a written decision has been rendered by the
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K. Planning Dcpi ER& ApplialiomlAPPEA ISl20iSAA -06-13 Appel u f DR- '.7.14 MOD Cradle talc knduapc plan ( rmac) ccr.doa
city council, the zoning administrator shall provide the appellant with written notice of the
decision.
• Eagle City Code Section 8 -2A -6: DESIGN REQUIREMENTS, OBJECTIVES AND
CONSIDERATIONS:
A. General Objectives And Considerations: The following apply to the entire design review
overlay district including the DDA, TDA, CEDA, and DSDA. Additional requirements for the
DDA, TDA, CEDA, and DSDA are set forth in subsections C through G of this section and, to
the extent there is a conflict with this section, the requirements for the DDA, TDA, CEDA, and
DSDA shall control. The following, including the provisions set forth in the Eagle architecture
and site design book, contains a listing of objectives applied to each application, and a listing of
matters which shall be considered by the design review board. The objectives are separated into
two (2) sections: site design and building design. Specific aspects of design should be examined
to determine whether the proposed development will provide a desirable environment for its
occupants as well as for its neighbors, and whether, aesthetically, the composition, materials,
textures and colors meet the intent of this article. The design review board shall consider the
following criteria in reviewing the application:
1. Site Design Objectives: The site plan design shall minimize impact of traffic on adjacent
streets, provide for the pedestrian, and provide appropriate, safe parking lot design.
a. The functional relationship of the structures and the site in relation to its surroundings;
b. The impact and effect of the site development plan on traffic conditions on contiguous streets
and adjoining properties or neighborhoods;
c. The site layout with respect to separation or integration of vehicular, pedestrian and bicycle
traffic patterns;
d. The arrangement and adequacy of off street parking facilities relative to access points, building
location and total site development to prevent traffic conflict or congestion;
e. The location, arrangement and dimensions of truck loading ramps, docks, and bays and vehicle
service facilities;
f. The access, parking lot, and interior roadway illumination plans and hours of operation;
g. The required driver, pedestrian and bicycle sight distance requirements of the project and their
relationship to adjacent streets, driveways and properties;
h. The coordination of the site development with planned right of way alignments, acquisitions
and street improvements;
i. The graphic delineation of traffic circulation patterns to avoid confusion, congestion and
conflicts;
j. The continued maintenance of traffic, parking and lighting systems;
k. The protection of views and vistas in relation to urban design and aesthetic considerations; and
1. The provision of safe pedestrian and bicycle connections between neighborhoods and
commercial areas.
2. Site Landscaping: The site landscaping shall minimize impact on adjacent properties through
the proper use of screening with sound and sight buffers, and unsightly areas shall be concealed
or screened and the design review board shall consider:
a. The location, height, and materials of walls, fences, hedges and screen plantings to ensure
harmony with adjacent development;
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b. The location and type of new plantings, with due regard to preservation of specimen and
landmark trees, and to maintenance of all plantings;
c. The providing of screen plantings or other screening methods reasonably required to conceal
outdoor storage areas, trash receptacles, service areas, truck loading areas, utility buildings and
other unsightly developments;
d. The installation of sound and sight buffers, the preservation of public views, light and air, and
the consideration of those landscape aspects of design which may have substantial effects on
neighborhood development, land uses, and amenities;
e. The design and use of open spaces and parks; and
f. The permanent maintenance of all landscaped areas and fencing.
• Eagle City Code Section 8 -2A -7 (E)(8)
8. a. Certification Of Completion: Upon the completion of the landscape installation, or other
improvement subject to design review approval, a written certification of completion shall be
prepared by the Iicensed landscape architect responsible for the landscape plan. The certification
of completion shall state that the installation of all landscape improvements is in substantial
compliance with the city approved landscape plan. This certification shall be submitted prior to
the issuance of a certificate of occupancy and is required as a part of, and not in lieu of, the
inspections performed and certificates issued by the city.
b. Report Of Deficiencies: In the event that deficiencies are present after the landscape
installation, or other improvements subject to design review approval, the licensed landscape
architect shall prepare and file with the city a report noting the deficiencies in the improvements.
The city will not accept a certification of completion, or issue a certificate of occupancy, until the
licensed landscape architect has verified that the deficiencies have been corrected.
B. DISCUSSION:
The following reflects the Design Review Board's deliberation on this matter:
The Board did not support the installation of the fence nor the cobble rocks that were installed around
the pond. They debated at length about the rocks around the pond but concluded to allow the applicant
to leave the rocks because of the financial hardship it would create to require the removal of the rocks
and to have the pond liner re- secured at the edges. The Board's preference would have been to have
the rocks removed and to have grass installed up to the edge of the pond. In an effort to compromise,
the Board asked that a revised landscape plan be submitted showing the addition of larger boulders
strategically placed around the pond to give it a more natural look and feel.
The Board unanimously agreed that the fence needed to be removed. There are large trees that were
retained and are located in close proximity to the irrigation pond and the fence detracts from the open,
park like setting of the area. Additionally, since the pond was approved as an aesthetic integral part of
the open space design for the subdivision, the Board concluded the fence needed to be removed to
preserve the integrity of the originally approved design. The Board understood the applicant's concern
regarding the risk of children playing in the pond, however, they concluded that the installation of a
fence was not the appropriate way of mitigating that concern and that the presence of the fence may
actually entice children to climb over the fence to explore and see "what is on the other side." The
Board was also concerned that, in the event of an emergency situation in or near the pond, the fence
would create an impediment and delay to the response time by emergency personnel.
Finally, the applicant stated that the slopes of the irrigation pond (and the pond's safety shelf) had been
constructed in compliance with the approved engineering plans (as evidenced by the design engineer's
certification). The Board concluded that, based upon the design (and certification by the design
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engineer) this pond is as safe as any other aesthetic, unfenced pond located within the City.
STAFF RECOMMENDATION PROVIDED WITHIN THE STAFF MEMORANDUM:
Based upon the information provided to staff to date, staff recommends denial of the requested appeal.
PUBLIC MEETING OF THE COUNCIL:
A. A meeting to consider the application was held before the Eagle City Council on January 26, 2016, at
which time the Council made their decision.
B. Oral testimony in opposition to this proposal was presented to the City Council by no one.
C. Oral testimony in favor of this proposal was presented to the City Council by no one (not including the
applicant/representative).
D. A meeting to consider a mediation request made by the applicant was held before the Eagle City Council
on February 23, 2016, at which time the Council made their decision.
COUNCIL DELIBERATION:
The Council discussed the safety issues raised by Bill Barros during his presentation with regard to the
rationale for constructing the fence around the pond. The Council felt the pond, as designed (including a
safety shelf with 3:1 slopes that was certified by the design engineer as being installed in substantial
compliance with the approved plans) poses no more of a public safety risk than any other pond in any other
subdivision within Eagle. The Council felt that allowing the non- approved fence to remain around the pond
within Creek Water Subdivision would set an inappropriate precedence within the community, indicating
that is okay to section off ponds from the rest of open spaces areas. Most, if not all, of the ponds within
developments previously approved within the City of Eagle are open with no fences and are free of
obstructions so that residents may experience their open spaces in the most natural setting possible. The
Council understood the fence was not approved with the subdivision's original landscape plan, they
understood the fence was constructed without approval, and felt the reasoning provided (to justify allowing
the fence to remain) was insufficient and based on no actual proof of a safety concern but only on the
applicant's personal opinion.
COUNCIL DECISION REGARDING THE APPEAL:
The Council voted 4 to 0 to deny AA- 06- I5 /DR -17 -14 MOD for an appeal for Bill Barros with the
following site specific conditions:
1. Comply with all applicable conditions of Creek Water Subdivision (A- 02- 13/RZ -03- 13/PP- 03 -13,
DR- 17 -14, and FP- I6 -14).
2. Provide revised landscape plans showing the fence around the irrigation pond removed and boulders
to be placed strategically around the perimeter of the pond to provide for a more appealing landscape
appearance. The revised landscape plan shall be reviewed and approved by staff and one member of
the Design Review Board prior to the issuance of any certificate of occupancy for any of the
residential dwelling units.
3. All ground mounted transformers, cable and phone boxes shall be screened by landscaping per Eagle
City Code.
4. Paint all electrical meters, phone boxes, etc. located on the building to match the color of the shed.
COUNCIL DECISION REGARDING THE MEDIATION REQUEST:
The Council voted 3 to 1 (Preston against) to decline the mediation request made by Bill Barrels.
CONCLUSIONS OF LAW:
L The Council reviewed the particular facts and circumstances of this appeal application (AA -06- l5`DR-
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K Plamling Depllr�nle AppliptiomlAPPEAlSL01 S)AA-06.15 Appeal of DR 17 -14 MOD Creek Wa1u 1arAscw plan (rencz) of docx
17 -14 MOD) with regard to the Eagle City Code Title 8, and based upon the information provided,
concludes that the proposed appeal is not in accordance with the Eagle City Code. Specifically, the
original landscape plan, date stamped by the City on February 26, 2014, for the Creek Water
Subdivision did not depict nor include a provision for the construction of a fence around the irrigation
pond. The design review application for the original landscape plan was not appealed and the approval
was final on May 9, 2014. Relief from any of the requirements and/or parameters of the approval must
have been sought before May 9, 2014.
2. Eagle City Code Section 8- 2A- 7(E)(8) requires a certification stating that all improvements, which are
subject to design review approval, have been installed in substantial compliance with the approved
landscape plan(s). To date, the City has not received said certification. The violation of ECC 8 -2A-
7(E)(8) will continue until certification is provided; certification is not possible until the non - approved
fence has been removed and compliance with the site specific conditions of approval and standard
conditions of approval as provided herein and within the Design Review Board's findings of fact and
conclusions of law document, dated April 24, 2014, for DR- 17 -14, have been achieved.
3. While Section 3.5 of the development agreement associated with the Creek Water Subdivision states
in part that, "...all fencing located adjacent to open space to be open -style such as wrought iron,
extruded aluminum (looks identical to wrought iron), or three- rail -type wooden decorative fencing. All
other fencing (ie. cedar fencing, vinyl, chain link) shall be prohibited," the development agreement
does not grant design review approval. Section 3.2 of the development agreement states, "Banos and
Hazen will develop their Property and Parcel subject to the conditions and limitations set forth in this
Development Agreement. Further, Barros and Hazen will submit such applications regarding 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 Agreement." The design review application for Creek Water Subdivision (DR- 17 -14) did not
include any fence, regardless of style, around the irrigation pond and, thus, one was not approved. Mr.
Barros' reliance on Section 3.5 of the development agreement to conclude a fence was permitted around
the pond is unsupported, as Section 3.2 of the development agreement more specifically identifies the
applications required for all improvements.
4. The Council further has reviewed the particular facts and circumstances of this appeal application
(AA- 06- 15/DR -17 -14 MOD) specifically with regard to Eagle City Code Section 8 -2A -13 (13)(2), and
based upon the information provided, concludes:
2. General Standards For Design Review: The zoning administrator or Design Review Board,
whichever is applicable, shall review the particular facts and circumstances of each proposed
design review in terms of the following standards and shall find adequate evidence showing that
such design review at the proposed location:
a. Will function in conformance with the applicable strategies of the Eagle comprehensive plan,
however, is not in accordance with the regulations of this code as identified in Conclusions of
Law Items 1 and 2 above;
b. Is not of a scale, intensity, and character that is in harmony with existing conforming and
planned development in the vicinity of the site because the pond area open space is not
accessible and usable (because of the placement of the non - approved fence) as was required;
d. Will interfere with the visual character, quality, or appearance of the surrounding area and city,
and will not enhance the continuity of thematically common architectural features because the
non - approved fence detracts from the open space theme approved in the original, approved
landscape plan by creating a barrier between the user and the aesthetic pond feature which was
included in the subdivision's open space calculations;
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e. The physical improvements have not been designed as a whole, when viewed alone as well as in
relationship to surrounding buildings and settings. Rather, the non- approved fence was installed
as an after- the -fact addition and was not proven to be compatible with the intended use of the
subdivision's common area open space; and
f. Will obstruct views and vistas in relation to artistic considerations as the non - approved fence
detracts from the visual aesthetics of the subdivision's common area open space as identified on
the original, approved landscape plan;
5. The Council further has reviewed the particular facts and circumstances of this appeal application
(AA- 06- 15/DR -17 -14 MOD) specifically with regard to Eagle City Code Section 8 -2A -6 (A)(2) Site
Landscaping, and concludes:
2. Site Landscaping: The site landscaping shall minimize impact on adjacent properties through the
proper use of screening with sound and sight buffers, and unsightly areas shall be concealed or
screened and the design review board shall consider:
a. The location, height, and materials of walls, fences, hedges and screen plantings to ensure
harmony with adjacent development;
The non - approved fence located around the pond open space area does not ensure harmony with
adjacent development(s) as no other developments have been allowed to construct fences
around open space ponds. Ponds in other developments in Eagle are open with no fences
whereby the residences are permitted to interact among all facets of the subdivision common
area open space thereby creating a harmonious environment.
d. The installation of sound and sight buffers, the preservation of public views, light and air, and
the consideration of those landscape aspects of design which may have substantial effects on
neighborhood development, land uses, and amenities;
The non - approved fence obstructs the public view of the subdivision common area open space
from the public street compared to what was envisioned and shown on the original, approved
landscape plan and thus, has a substantial negative effect regarding the overall usability of the
common area open space and the feeling of openness within the neighborhood.
e. The design and use of open spaces and parks;
The design and use of the open space was considered by the City to be open with no
impediments therein upon review and approval of the original landscape plan, which showed no
fence around the pond. The after -the -fact construction of the non - approved fence changes the
original intent and theme of the subdivision's common area open space.
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DATED this 841 day of March 2016.
CITY COUNCIL
OF THE CITY OF EAGLE
Ada County, Idaho
Stan f geway, , byor
ATTEST:
Sharon K. Bergmann, Eagle Citt Clerk
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Regulatory Taking Notice: Applicant has the right, pursuant to section 67 -8003, Idaho Code, to request a regulatory
taking analysis.
Reconsideration Notice: Applicant has the right, pursuant to Section 67 -6535, Idaho Code, to request a
reconsideration within fourteen (14) days of the final written decision.
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