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Minutes - 2001 - Planning & Zoning - 12/03/2001 - Regular ORIGINAL EAGLE PLANNING AND ZONING COMMISSION December 3, 2001 6:30 PM The Planning and Zoning Commission met in regular session on December 3,2001 Chairman Franden presiding. 1. CALL TO ORDER: 2. ROLL CALL: The following members were present FRANDEN, DECKERS, NORDSTROM, Absent: BLOOM, CADWELL. A quorum is present. 3. CONSENT AGENDA: A. Minutes of November 19, 2001. B. Findin2:s of Fact and Conclusions of Law for CU-9-01 & PP-4-01 - Ancona Commercial Subdivision -Ancona Group LLC: Ancona Group LLC, represented by Colin Connell, is requesting conditional use and preliminary plat approval for Ancona Commercial Subdivision. The 5.08- acre, 7-lot commercial subdivision is located on the south side of State Highway 44, approximately 1/2-mile west of State Highway 55. Deckers removes the minutes from the consent agenda. Nordstrom moves to approve the Consent Agenda as amended. Seconded by Deckers. ALL AYE. ..MOTION CARRIES. Nordstrom moves to approve the minutes as amended. Seconded by Deckers. ALL A YE...MOTION CARRIES. 4. UNFINISHED BUSINESS: A. FPUD-3-01 & FP-6-01 - Final Development Plan and Final Plat for Picadillv Villa2:e PUD Subdivision - PO Ventures: PO Ventures, represented by Robert C. Unger with Hubble Engineering, is requesting final development plan and final plat approval for Picadilly Village PUD, a 19-1ot (16-residential, 2-commercial, and I-common) subdivision. The 6.87-acre site is located on the southwest comer of State Highway 55 and Hill Road. Franden introduces the item. Deckers recuses himself from this item. Bob Unger with Hubble Engineering, 701 S. Allen St. Suite 201. Representing the applicant concurs with the staff report and discusses the letter from ACHD which states that they will not approve the stub street connection into Great Sky Estates. Page 1 of 6 K:\P&ZIMINUTESITemporary Minutes Work AreaIPZ-12-03-01 min. doc Bill Vaughan, city staff presents the staff report. Discussion between Vaughan and the Commissioners. Chairman Franden asks Mr. Evans to address this application. John Evans, 5699 N. Ripple Way Garden City, the developer of Great Sky Subdivision comments on his concerns about seeing this project completed. Mr. Evans states that he has no objections to the pathway. Bob Unger stands to address the Commissioners questions on working with ACHD to see about widening the planter strip. Bill Vaughan provides additional comments on the aesthetics of the block wall. Nordstrom moves to continue FPUD-3-01 & FP-6-01 - Final Development Plan and Final Plat for Picadilly Village PUD Subdivision - PO Ventures_until the December 17, 2001 Planning & Zoning Meeting, at this time the applicant can provide additional information on the retaining wall. Seconded by Franden. ALL A YE...MOTION CARRIES. (Deckers abstained). B. PP-8-01 - Once Upon a Subdivision - Northwest Development LLC: Northwest Development LLC, represented by Matt Munger with Hubble Engineering Inc., is requesting preliminary plat approval for Once Upon a Subdivision. The ll.ll-acre, 35-lot (33-buildable, 2-common) residential subdivision is generally located north of West State Street, approximately 300-feet west of Eagle Glen Lane at 386 W. State Street. (This item was continued from the November 19, 2001, Planning & Zoning Meeting). Franden introduces the item. Jeff Lowe states that the public hearing was closed on this item but he is available for any questions. Deckers asks Vaughan how the proposed transportation network was decided. The Commission reviews the site specific conditions. Matt Munger with Hubble Engineering, 701 Allen Street, Meridian, states that the lomar has not been submitted. Discussion amongst the Commission on the stub street. Kristen Van Engelen, 4090 State Street Boise, the applicant answers the Commissioners Page 2 of 6 K:\P&ZIMINUTES\Temporary Minutes Work AreaIPZ-I2-03-011llÌ11.doo question on the proposed fencing. Deckers moves to approve PP-8-01 - Once Upon a Subdivision - Northwest Development LLC with staff recommendations and the following changes to the site specific conditions of approval: . Ssc #5, Strike from - prior to city clerk...to the remainder of the condition. . add 3 conditions between #5 & #6, recommended by staff in their November 29, 2001 memo to the Commission. . Ssc #9, strike from -OR...through the remainder of the condition. . Ssc #10, add to the condition that the portion of this area that is driveway adjacent to homes shall not be included as open space calculations. . Ssc #13 add, "this easement is to be maintained by the Home Owners Association" . . Ssc #14, Lot 21, Block 1, the developer may use it the open space calculation to aid in satisfying ssc #9. add new condition "Enchantment street shall be stubbed to the west as shown". Seconded by Nordstrom. Discussion. Deckers amends his motion to include: . Ssc, #4, strike from - UNLESS...on to the remainder of the condition. Add to the motion: Instruct staff to include in the Findings & Conclusions of Law that the Commission feels that the connections from Enchantment is critical for this area to development as part of the inner city downtown feel and aids in the inner connection. It will also help for the future development of Park Lane to transition into being part of the CBD. We think we are at a critical juncture in the connectivity in the city. The City Council can determine whether or not to seriously maintain the connectivity to the downtown, to the subdivision, and over to State Street. Second concurs. ALL A YEmMOTION CARRIES. Franden calls a brief break. 5. PUBLIC HEARINGS: A. CU-I0-01-115-foot hi2:h Personal Wireless Facility - Cricket Communications: Cricket Communications, represented by Neil Hattenburg with Crown Castle International, is requesting conditional use approval to install a 115-foot high monopole to accommodate a personal wireless facility. The site is generally located on the southeast comer of Floating Feather Road and North Ballantyne Road within the ACHD right- of-way (drainage pond) at 1156 North Ballantyne Road. Franden introduces the item. Kevin Maloney, 277 N 6th Street, an attorney with Givens Pursley representing the Page 3 of 6 K:\P&ZlMlNUTESITemporary Minutes Work AreaIPZ-I2-03-01 min.doc applicant presents the application. Mr. Maloney uses visual aids to help in his presentation. States that they are willing to reduce the height of the cell tower from 115 feet to 112 feet. Jeff Lowe, city staff presents the staff report. Franden opens the public hearing Deckers ask City Attorney, John McFadden to comment on the health issues from electromagnetic rays and the fact that you cannot use this in your deliberation. Jason Gibson, 2217 W. Bums Street Eagle. Mr. Gibson states cell towers are eyesores and devalue property values. Feels that Cricket should compensate the neighbors for their loss of property value, or use some type of camouflage to disguise these towers. Mike Malterre, 1795 W. Floating Feather, owns the adjoining property and is opposed to this project. The cell tower will affect his property values and states they will move if this goes through. Sarah Tregay 2217 W. Bums Street, recently purchased a home in Eagle. Ms. Tregay states that life is not about technology but a simple life. Not opposed to technology but a drainage pond is not the place to put a cell tower. Mike Plunkett, 843 Ballantyne, asks the question "do you need the set back in case the cell tower falls"? Mr. Plunkett also wonders why the applicant would pick an area in the 100 year flood plain. Worries about any type of chemical storage and has a concern about this in the floodway. Asks how can you issue a building permit on an area that was condemned? Gregg Pierce, 1601 W. Floating Feather. Mr. Pierce states that a tower of this height will be an eyesore and is concerned about his property values. Jay Camp, 2190 Bum Street. Thinks that the high school would be a perfect site for another cell tower. Mark Butler, 1640 W. Washam, Mr. Butler is representing five other people in opposing this application. Thinks this in an inappropriate sight even though he wrote the code on this. Mr. Butler give a brief history of this site. Mr. Butler suggests the city hire a consultant to decide if this is an appropriate place. Do not let this tower be over 50 feet and place conditions on this site. Kevin Maloney provides a rebuttal Before tonight no one has complained about the condition of this property. States that the tower at Eagle Island State Park is full. The high school is to far to the east for a good cell tower sight. Provides a propagation map to aid in his discussion. William Moore, 4170 Quinn Drive Carson City, Nevada, Mr. Moore with Cricket Page 4 of 6 K:\P&Z\MlNUTESITemporary Minutes Work ArealPZ-I2-03-01 min.doc Communication answers the Commissions question on whether they have considered the high school site? Mr. Moore states that this site will not get very good coverage. Discussion on the site suitability between Mr. Moore and the Commission. Franden closes the public hearing. Nordstrom does not think a cell tower can go on this site. Franden agrees completely with Nordstrom. Deckers states that there is not enough good locations for cell towers because the city is trying to protect the aesthetic values. He would like to see some other options. Discussion amongst the Commission. Kevin Maloney stands to answer Nordstrom's question on whether they would be willing to work with the city and explore other options or would they want a denial. Deckers moves to continue CU-I0-0l-115-foot high Personal Wireless Facility- Cricket Communications to the January 14,2002 Planning & Zoning Meeting, the applicant will look for alternatives to a full height location and alternate locations and co-locations. Other things to consider, If a tower is to be built in this area the Parks and Pathway Committee should have a look at this applicant because that is a potential future park location. Also, landscaping and the appropriate hardscaping should be a part of this application. Seconded by Nordstrom. ALL A YE...MOTION CARRIES. B. ZOA-7-01- Zoninf! Ordinance Amendment to establish a public tree fund - City of Eaf!le: - The City of Eagle is proposing to amend Eagle City Code to add Title 8, Chapter 2A, Section 7-0-3, to provide for the creation of a public tree fund to be used as an alternative method of compliance relating to landscaping and buffer requirements. Franden introduces the item. Jeff Lowe City staff presents the staff report. Discussion. Nordstrom moves to approve ZOA-7-01- Zoning Ordinance Amendment to establish a public tree fund - City of Eagle, as proposed. Seconded by Deckers. ALL A YEmMOTION CARRIES. 6. NEW BUSINESS: None 7. REPORTS: Nordstrom would like to publicly thank Steve Deckers for all his work on the Commission and states that they will really miss him. Page 5 of 6 K:\P&Z\MlNUTESITemporary Minutes Work AreaIPZ-12-03-01 min.doc 8. ADJOURNMENT: Nordstrom moved to adjourn at 10:45 p.m. Seconded by Franden. ALL A YEmMOTION CARRIES... RESPECTFULLY SUBMITTED: ~" .... 0' lt4 (j ~~ 80"".~:( 6- ."'. 0 It :\~ I ~t ..t,. : Ii.4C ~ J . *: _e- * ~..,:....~...~.....EA.L.......J . ,'i;", .t:::d.1i ~~~~.r;.- # ~~ Of ~~ SHARON K. MOORE ClTY CLERK/TREAS URER A TRANSCRIBABLE RECORD OF THIS MEETING IS A V AILABLE AT CITY HALL. Page 6 of 6 K:\P&ZIMlNUTESITemporary Minutes Work AreaIPZ-12-03-01 min.doc EAGLE PLANNING & ZONING COMMISSION PUBLIC HEARING SIGN -IN SHEET Subject: CU -10-01 - 115 -foot high Personal Wireless Facility - Cricket Communications December 3, 2001 6:30 P.M. PLEASE PRINT LEGIBLY NAME rl /<'U)V1 fl;IilO/ Ntillak\DA)Irg; /,{J//i,,, Rodre_ te,C, S Q ra h -TrP30.� 7//ee AnA..??4/ ADDRESS 2 17 W. Rev t' n s EaSk 1-D 936I& 7q5 W. log ^y ?-,ftei 53614 a77 til C 5 -t-- S cd, s e 10 S370g, 1o21r k/U. .rncrAl& 4'170 Qv ;An fJf, ✓p 2-11 kl. -��-�w 5t'e_;-,}— !X(); (10 -zzr� (Jo.rs 54: F_n S (-e. 536 k, 8V3 1),9-�/ s = i 1(0o I w itAccibu, Vi4u, Page 1 of 2 TELEPHONE PRO? L739 - 510 `1 ciM-070 356 - 4200 (oSC')30 7/19 x CON? EAGLE PLANNING & ZONING COMMISSION PUBLIC HEARING SIGN-IN SHEET Subject: ZOA-7-01 — Zoning Ordinance Amendment to establish a public tree fund December 3, 2001 6:30 P.M. PLEASE PRINT LEGIBLY NAME ADDRESS TELEPHONE PRO? CON? Page 1 of 1 LAW OFFICES GIVENS PURSLEYLLP MEMORANDUM TO: City of Eagle, Planning & Zoning Department FROM: Kevin T. Maloney Franklin G. Lee RE: "In -lieu -of' Condemnation Exemption to City of Eagle Subdivision Ordinance DATE: December 3, 2001 QUESTION rcccive.Q by. CI /y a-1- �,sle n� , 3j vl Is the parcel of land at the southeast corner of Ballantyne Road and Floating Feather Road for the Ada County Highway District drainage pond (the "ACHD Parcel"), which was created by a Warranty Deed dated January 26, 1998, an illegal land division created in violation of the City of Eagle Subdivision Ordinance? CONCLUSION No. The Drainage Pond Parcel was lawfully created through an exemption in the Subdivision Ordinance for parcels created through an unwilling sale of land pursuant to condemnation under the Idaho Code. FACTS According to Neil Newhouse, in-house counsel to Ada County Highway District, the ACHD Parcel was purchased from the Garoutte Family Limited Partnership on January 26, 1998 as a deed in -lieu -of condemnation. Mr. Newhouse has agreed to provide a letter to the confirming the facts above, if requested by the City of Eagle. MEMORANDUM S.\CLIENTS16008\27\2001-11-03 FGL Memo re Condemnation.frm Page 1 ANALYSIS Under Idaho law, subject to exceptions not relevant here, before any public entity can file a condemnation action to take private property for public use, it must first certify to the court that its has sought in good faith to purchase the property to be taken from the private landowner, but it was unable to make any reasonable bargain. See Idaho Code § 7-707(6) (attached). Therefore, the first step in any condemnation action is to inform the landowner that the parcel (or portion of a parcel) desired by the public will be taken by law if the public entity and landowner can not agree on a reasonable price. Under the threat of condemnation, most landowners recognize the public's right to take the land and unwillingly agree to sell the land to the public for a reasonable price, under threat of condemnation, rather than engage in an expensive, and probably unsuccessful, litigation to stop the condemnation. This is commonly referred to as a "deed in -lieu -of condemnation." Furthermore, if the landowner unreasonably fights the condemnation action in court, the landowner may be held responsible for the public agency's attorneys' fees. The Eagle City Code contemplates deeds in -lieu -of condemnation by exempting land sales forced under threat of condemnation from the City of Eagle Subdivision Ordinance ("Subdivision Ordinance"). Specifically, the Eagle City Code § 9-1-6 declares that the Subdivision Ordinance "does not apply to . . . [t]he unwilling sale of land as a result of legal condemnation as defined and allowed in the Idaho Code." Eagle City Code § 9-1-6 (exemption "C" under the definition of "Subdivision") (attached). The policy behind this exemption is to reduce the time and expense of condemning a portion of a parcel of land for public use by simplifying the condemnation process and limiting the potential for severance damages that the public must pay to the private landowner. If the condemnation process were required to comply the Subdivision Ordinance, then the cost to the public would increase dramatically because the public would have to compensate the private landowner for the time, expense and trouble of going through the subdivision process and the risk of that the land division requested by the public might not be approved. Under the facts of this case, the ACHD Parcel was sold by the private landowner to ACHD under threat of condemnation and therefore is exempt from the requirements of the Subdivision Ordinance. Through this exemption, any lot created by such a forced sale would be a separate legal lot recognized by the City and is eligible for any use or permit it is otherwise qualified for. MEMORANDUM S:ICLIENTS1600812712001-11-03 FGL Memo re Condemnation.frm Page 2 543 EMINENT DOMAIN 7-707 easement condemnation proceeding. 23 A.L.R.4th 631. Eminent domain: compensability of loss of view from owner's property — state cases. 25 A.L.R.4th 671. Eminent domain: unity or contiguity of sep- arate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel. 59 A.L.R.4th 308. Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use. 29 A.L.R.5th 36. 7-707. Complaint. — The complaint must contain: 1. The name of the corporation, association, commission or person in charge of the public use for which the property is sought, who must be styled plaintiff. 2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants. 3. A statement of the right of the plaintiff. 4. If a right of way be sought, the complaint must show the location, general route and termini, and must be accompanied with maps thereof. 5. A description of each piece of land sought to be taken, and whether the same includes the whole, or only a part, of an entire parcel or tract. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the option of the plaintiff, but the court may consolidate or separate them to suit the convenience of the parties. 6. In all cases where the owner of the lands sought to be taken resides in the county in which said lands are situated, a statement that the plaintiff has sought, in good faith, to purchase the lands so sought to be taken, or settle with the owner for the damages which might result to his property from the taking thereof, and was unable to make any reasonable bargain therefor, or settlement of such damages; but in all other cases these facts need not be alleged in the complaint, or proved. [C.C.P. 1881, § 857; R.S., § 5216; am. 1907, p. 322, § 1; reen. R.C. & C.L., § 5216; C.S., § 7410; I.C.A., § 13-7071 Cross ref. Abbreviations and numbers, use in pleadings, I.R.C.P., Rule 10(a)(3). Contents of complaint in actions in district court, I.R.C.P., Rules 7 through 9. Pleadings to be in English language, I.R.C.P., Rule 10(a)(3). See notes, § 7-701. Cited in: Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910); Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912); Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, 155 P. 680 (1916); State ex rel. Moore v. Howell, 111 Idaho 963, 729 P.2d 438 (Ct. App. 1986); State ex rel. Moore v. Howell, 111 Idaho 963, 729 P.2d 438 (Ct. App. 1986). ANALYSIS Burden of proof. Description of land. Designation of owners. Evidence. Nature of condemnation proceeding. Offer to purchase. Parties. Purpose of condemnation. Sufficiency in general. Burden of Proof. Where landowners specifically alleged that the condemnors had alternative means of access and produced evidence of such alterna- tive means of access, including one road then in use by the condemnors pursuant to a li- cense agreement it was then incumbent upon the condemnors to prove that the alternative means of access were not available to them or that such means of access were not reason- ably adequate or sufficient for their purposes. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978). Description of Land. In action brought to condemn right of way through a farm or a legal subdivision, such right of way should be described in complaint 9-1-6 9-1-6 SUBDIVIDER: SUBDIVISION: The individual, firm, corporation, partnership, association, syndicate, trust or other legal entity that executes the application and initiates proceedings for the subdivision of land in accordance with the provisions of this Title. The subdivider need not be the owner of the property; however, he shall be an agent of the owner or have sufficient proprietary rights in the property to represent the owner. The result of an act of dividing an original lot, tract or parcel of land into more than two (2) 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 subdivisions", "major subdivision? and "large-scale developments", 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 change the original number of lots in any block of the recorded plat; B. An allocation of land in the settlement of an estate of a decedent or a court decree for the distribution of property; C. The unwilling sale of land as result of legal condemnation as defined and allowed in the Idaho Code; D. Widening of existing streets to conform to the Comprehensive Plan; E. Acquisition of street rights of way by a public agency in conformance with the Comprehensive Plan; and City of Eagle 696 (L66 l -E L-9 `176Z 'RIO) uoqoasqns OT v l!cut.4xp