H3. Woodland Apartments Site Review AppealCity of Kalispell
Charles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
TO:
FROM:
SUBJECT:
DATE:
MEMORANDUM
Doug Russell, City Manager
Charles Harball, City Attorney
Tel 406.758.7709
Fax 406.758.7758
charball@kalispell.com
Woodlands Apartments LLC Appeal of Site Review Committee
Determination
December 7, 2020
DISCUSSION: Pursuant to KMC §27.20.120(4) Woodlands Apartments LLC has appealed a specific
determination of the Kalispell City Site Review Committee to the City Council. The City Council
shall hear from the appellant as well as the response from the City staff, and shall further review the
record and then make its ruling which shall be put in the form of a resolution to be acted upon by the
City Council at its next meeting.
The specific determination of the Site Review Committee that is being appealed is as follows:
4) Update recreational amenity calculation to remove reference to condemnation prior
to issuing a building permit.
This is the sole issue that is before the City Council on appeal.
Development Services Department
201 1s` Avenue East
Kalispell, MT 59901
Phone: (406) 758-7940
Fax: (406) 758-7739
www.kalisnell.com/plannine
SITE DEVELOPMENT REVIEW APPEAL APPLICATION
Any applicant may file an appeal when aggrieved by a decision or interpretation made by the Site
Development Review Committee.
1. A written appeal and payment of fee as prescribed by the City Council must be received in
the office of the City Manager within 30 days from the time the officer(s) charged with the
enforcement of Section 27.20.120 of the Kalispell Zoning Ordinance have made a written
interpretation or determination on the site plan application.
2. The City Manager shall review the appeal and transmit the appeal and associated material
to the City Council.
3. The City Council shall act on the appeal within 30 days following receipt of the appeal by
the City Manager.
4. Decisions by the City Council shall be made my Resolution. The basis for the decision on
each appeal and a detailed summary of the facts and basis support such determination
shall be recorded on the decision and shall constitute a part of the record thereof.
Contact Person:
Owner & Mailing Address:
Name: Paul Bardos Woodland Apartments, LLC
Address: P.O. Box 7485 Same
Kalispell, MT 59904
Phone No.: (406) 309-8080
LEGAL DESCRIPTION OF PROPERTY (Refer to Property Records):
Street: Sec. Town- Range
Address: 517 Shady Glen Dr, Kalispell, MT No._08 ship_28 No. 21
Subdivision
Name:Woodland Apartment
Current Zoning: B-1
Specify the decision or interpretation appealed:
Item 44 of the attached Site Review conditional approval.
Tract Lot Block
No(s). No(s). No.
1
State why you believe the decision or interpretation is erroneous (attach additional page if necessary):
CAUSE FOR APPEAL
In the case of Woodland's submittal, Public Works Department has broadly interpreted the Council's
approvals to include an authority for a taking of private lands for the purpose of widening Woodland
Park Drive and Shady Glen without Just Compensation. This is despite findings of facts by decision
makers at public hearings beforehand to the contrary. Their authority for the taking was articulated in a
letter prepared by the city attorney's office dated August 18, 2020 a copy of which is attached to this
appeal. The closing sentence in paragraph 3 on page 1 of that letter summarizes the authority for the
taking as arising from "one of the conditional uses of the property, a multifamily use, that increases the
density of use within the neighborhood and to the transportation system. " This controversy has
culminated in item 94 of Site Review's conditions of approval a copy of which is also attached to this
appeal and it is only item #4 of Site Review's conditional approval that is before the Council in this
appeal. In addition to the taking of private property Public Works has added additional requirements to
gain permit approvals that will be discussed in greater detail at the Council meeting.
CUP APPROVALS AND HEARING TESTIMONY
During hearings Staff gave expert testimony together with hearing local residents' comments regarding
traffic impacts on the adjacent streets. A copy of the Planning Commission's minutes of approval
summarizing testimony and their approvals are attached to this application. At the Planning Commission
meeting on July 9, 2019 Commissioners heard several resident's concerns about additional traffic from
the project. Staff responded to neighbor's comments by providing evidence that the trip counts contained
in their report supported minimal traffic impacts. Staff also countered that the driveway of the parking
lot would encourage traffic onto Woodland Park because of its proximity and because traffic was
unlikely to travel east on Shady Glen. A copy of staffs report is included with this appeal.
Despite neighbors voicing concerns, and scrutiny by Staff no increased traffic impacts were found to
exist during the hearings and Staff s conclusion contained in their report was that "The width and quality
of Shady Glen Drive and Woodland Park Drive are more than adequate to handle the additional traffic
load. " [Emphasis Added] Accordingly Staff s report was included as a finding of facts in Woodland's
approvals by the Planning Commission including the negative traffic impacts from the project. Both
Planning Commission and City Council went on to unanimously approve the project. The testimony at
hearing clearly demonstrated that a finding was made that no additional impacts beyond the existing
traffic carrying capacity of the streets was found that warranted a taking to widen city streets.
WOODLAND'S RELIANCE ON EXPERT TESTIMONY AND FINAL APPROVALS
Applicant Woodland Apartments, LLC ("Woodland") has an Investment Backed Expectation in the
purchase and development of its property based upon public testimony given and findings made during
public hearings. At the time of those hearings Woodland could have exercised its option in its purchase
agreement to abandon the purchase should it have found reason to do so. However, and based upon the
findings unanimously granting CUP approvals that traffic impacts did not necessitate a taking, Woodland
proceeded and purchased the property. Had Woodland known its property would have been diminished
and partially taken for the benefit of the public without compensation it would have acted differently in
the purchase. That option is foreclosed upon on Woodland and it is no longer available to it as a business
decision.
ION
SUMMARY AND CONCLUSION
It is important to note the following factors when considering the issues involved in this appeal: (1) the
authority for the right-of-way taking from Woodland is proposed through government regulation. The 5t"
Amendment to the US Constitution does not mention regulatory takings.' However more importantly the
ROW taking is concurrently being proposed without Just Compensation. While it is true governments
may take property through eminent domain, inverse condemnation proceedings or by regulation, such
takings require government to justly compensate according to principles set out in the 5t' Amendment to
the US Constitution; (2) the taking for right-of-way in this instance is a physical taking that "eviscerates
the owner's right to exclude others from entering and using the property perhaps the most fundamental
of all property interests."Z; (3) moreover, the property is an aggregation of less than 5 parcels and
therefore exempt from subdivision requirements that would typically include the creation and granting of
public right-of-ways; (4) no subdivision request has been applied for in the development of the parcel
that might otherwise warrant a voluntary taking; (5) a portion of the land being taken falls outside city
limits and is under the jurisdiction of Flathead County and where City powers could only infer hegemony
without statutory jurisdiction; and (6) the property is an existing and legally created parcel through prior
governmental applications and public reviews through to their subsequent approvals establishing the
parcels. No review or modification of the current subdivision map is at issue here.
COMMENTARY
While the taking of private land is a significant issue in Woodland's appeal, it is the consequences of the
taking adversely affecting the community as a whole that Woodland also protests. Small infill lots suffer
the greatest harm from rigid or excessively applied standards because the ratio of cost to develop to
capacity to absorb or spread those costs is disproportionately burdensome on the infill builder. This
imbalance of cost to develop on small parcels discourages private investment into the community, favors
large tract builders over small infill development projects, and unfairly penalizes small businesses who
are attempting to succeed and grow their businesses as has been the pattern and practice of the
community over the past 125 years. Particularly during these times of Covid the burden on small
businesses grows only greater.
Moreover, since the time of Charles Conrad, homes and businesses in Kalispell have been built by small
builders one at a time. It is clear that the beneficial growth over the past 125 years by those same small
builders demonstrates environmentally sound practices were employed — compare that we have some of
the cleanest water in the nation — and these successful practices have led to future demand on the area to
develop into currently the 2nd fastest growing city in the state. These successes of past small builders has
created a charming town center, interest in the area, and demand for housing for thousands of new
residents and visitors to the community. The simple truth is that application of these new standards is
simultaneously deterring that historic pattern while altering the character of the community driving small
businesses from their past successes in favor of larger more financially affluent entities proposing ever
bigger projects. Not only is the small builder overly impacted in this process, but all of the other
synergistic businesses that depend on them suffer too. These would include engineers, surveyors, glass
companies, home furnishing enterprises, building material suppliers just to name a few.
As we all are aware land and housing costs are escalating at a pace that many in the community cannot
keep up with. One nearby city has met these cost increases by imposing restrictions and additional costs
to make housing more affordable. Engineering standards clearly play a key role in development costs for
new housing and businesses and therefore their application or misapplication can alter the community's
1 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 n.15 (1992).
z Lingle v. Chevron U.S.A., 544 U.S. 528, 539 (2005); See Dolan v. City of Tigard, 512 U.S. 374,
384 (1994); Nollan v. California Coastal Comm'n, 483 U.S. 825, 831-832 (1987); Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,433 (1982); Kaiser Aetna v. United States,
444 U.S. 164, 176 (1979)
3
growth patterns and past building precedents. As an example, Woodland will give up approximately
30% of its income revenues to support the governmental standards being imposed to permit the project.
Woodland has reached out to others in the engineering community who have expressed an interest in
developing other viable engineering solutions to even the playing field and lessen the financial load on
the community. Such alternative could include pilot programs to examine the feasibility of pervious
surfaces in lieu of more expensive underground drainage structures to mitigate storm water requirements.
Pervious paving is a known alternative recognized throughout the state of Montana and elsewhere. How
vegetated areas are calculated prior to and after development can also drastically influence costs to name
another area where one size fits all standards create an uneven playing field.
In summary I would ask the Council to direct Staff to open discussion with local stakeholders to explore
pilot programs, how standards may be applied in a way that preserves the inherent hard work and
determination of small businesses that have provided the community's needs and that we all enjoy today.
Additional comments will be provided at the Council meeting.
Submittal requirements are as follows (an appeal application is not considered complete unless the
following information is provided):
(a) If the appeal involves a specific piece of property, please attach a dimensioned site plan, drawn
to scale, showing all existing and/or proposed improvements (buildings, utilities, driveways and parking
areas, trees, landscaping, etc.) on both the subject property and adjacent parcels. The site plan must also
include adjacent right-of-ways and any easements.
(b) If the appeal involves a sign or signs, that site plan must include the location of all existing and
proposed signs, as well as the size (in square feet) of each such sign. Complete dimensioned drawings,
drawn to scale, of the sign(s) must be submitted including height, type of sign (e.g. freestanding, wall,
etc.), color, material structural supports, and electrical/lighting components.
(c) Additional information may be necessary based on the specific issue presented.
(d) An application fee of $250.00, made payable to the Kalispell Planning Department must
accompany a complete application submittal. Incomplete or inaccurate applications will not be accepted.
s/ Paul Bardos November 10, 2020
Applicant Signature
Date
0
From: PJ Sorensen
To: Paul
Cc: Doug Russell; Charlie Harball; Rachel Ezell; Jarod Nvaren
Subject: Woodland Apartments
Date: Thursday, October 22, 2020 2:35:58 PM
Attachments: imaae002.wa
Paul -
Thanks for coming to the Site Review meeting earlier today. As you are aware, the Site Review
Committee conditionally approved the project today. All of the conditions would need to be
addressed prior to issuing a building permit. Looking at our permit program, it also looks like you
need to obtain your driveway and construction stormwater (how you will handle runoff during
construction) permits from Public Works. You will need to get those prior to the building permit as
well. The conditions of the site review approval were as follows:
1. Aggregate the parcels, with the aggregation to be recorded prior to issuing a building permit.
The survey needs to be corrected to show an accurate street address (571 Shady Glen rather
than 23, which would be the Woodland Park side).
2. Deed dedicating right-of-way to be recorded prior to issuing a building permit. You need to
correct the legal description in the first paragraph to the new amended plat (As a note, the
block number in the current version is incorrect, but the new legal would remedy that).
3. Record Waiver of Protest of Stormwater SID prior to issuing a building permit. Waiver must be
the current version used by the City. Please send a scan of the signed document you intend to
record to Public Works prior to recording so that they can review it.
4. Update recreational amenity calculation to remove reference to condemnation prior to issuing
a building permit.
5. Prior to issuing a building permit, submit a detailed layout of the recreational area including
pergola dimensions, setbacks from buildings and property lines, concrete area, and details on
types and specific location of other improvements, including, but not limited to, the barbeque.
6. Landscaping in the clear vision triangles shall match the adjacent landscaping.
In terms of providing our sign -off on the aggregation and the deed, we need to have items (4) and (5)
addressed prior to providing our approval letter for the Clerk and Recorder.
If you wish to appeal the conditional approval from Site Review, I believe that the City Manager
outlined the process for you to follow in his email of October 19. You have 30 days from today to file
the appeal if you choose to do so. Please let us know if you have any questions.
KALISPELL
PJ Sorensen, Esq.
Senior Planner
Development Services Department
201 1"Ave East
Kal ispel I. MT S9901
(406) 7SS-7940
psoren senokal isoell _corn
Messages and attachments sent to or from this e-mail account pertaining to City of Kalispell
business may be considered public or private records depending on the message content. The
City is required by law to protect private, confidential information. Emails that contain
confidential information such as information related to individual privacy may therefore be
protected from disclosure under law. However, these communications are also subject to the
Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and may be considered a
"public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its
sender and receiver, and the contents may be available for public disclosure and will be
retained pursuant to the City's record retention policies. Any unauthorized review, use,
disclosure or distribution of this e-mail or its attachment(s) is prohibited. If you are not the
intended recipient, immediately contact the sender by reply e-mail and destroy all copies of the
original message.
City of Kalispell
Charles A. HarbalE Office of City Attorney
City Attorney 312 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
August 18, 2020
Paul Bardos
595 Daley Lane
Kalispell, MT 59901
Re: Response to Request ofAuthority
Dear Mr. Bardos:
Tel 406.758.7708
Fax 406.758.7771
charbali@kalispell.com
kalispell.com
You have requested to know the authority of the City of Kalispell, in response to your
request for a conditional use permit, to require that you convey some ownership interests in a
small amount of your property to the City of Kalispell in order to widen the public roadway
abutting your property that will serve the occupants of the apartments you wish to construct and
their guests as well as the neighboring properties and the traveling public in general.
The City of Kalispell, as a duly formed municipality of the State of Montana, derives its
powers from the laws of this state. The City has the general powers provided to all
municipalities as outlined in MCA §7-1-4123. More specifically to your question, it has the
authority to regulate the land uses within the City "for the purpose of promoting health, safety,
morals, or the general welfare of the community." MCA §76-2-301. These zoning regulations
must be designed to facilitate the adequate provision of transportation, water, sewerage, schools,
parks, and other public requirements. MCA §76-2-302.
The property that you own and on which you have petitioned for a conditional use received
its zoning designation based upon the overall growth policy, the existing uses of the neighboring
properties, and the character of the public facilities that serve it. The primary permitted
residential use of your property could therefore be developed accordingly without necessary
upgrades to the transportation system that serves your neighborhood and your specific property.
You have requested one of the conditional uses of the property, a multifamily use, that increases
the density of use within the neighborhood and to the transportation system.
The approval of a conditional use is a discretionary determination by the City, but it must
not abuse its discretion. Flathead Citizens for Quality Growth, Inc. v. Flathead County Bd. of
Adjustment, 2008 MT 1, 341 Mont. 1, 175 P.3d 282. The City must be able to determine that the
proposed conditional use would not, under the circumstances of the particular case, be
detrimental to the health, safety, peace, morals, comfort, and general welfare of the zoning
district. Botz v. Bridger Canyon Planning & Zoning Commn, 2012 MT 262, 367 Mont. 47, 289
P.3d 180 It must therefore consider whether there are facts sufficient to support the conditional
Paul Bardos
August 18, 2020
Page - 2
use and what conditions may be appropriate to ensure that adequate provisions are made to offset
any negative impacts of the conditional use. This necessitates an evaluation of the existing
public infrastructure and whether it is sufficient to serve the neighborhood.
The City has therefore evaluated the zoning district your property is in as well as the
surrounding neighborhood and determined that an improvement of the roadway to urban
standards will be required if the density is increased with a conditional use you requested. The
Conditional Use Permit that was granted for this property on August 5, 2019 therefore carried the
following conditions:
3. To ensure the traffic flow and access with Kalispell Design and
Construction Standards, the development shall receive Site Review Committee
approval prior to issuance of the building permit.
7. Shady Glen Drive and Woodland Park Drive shall be upgraded to an
urban standard in accordance with the City of Kalispell Construction and Design
Standards the length of the property. Upgrades include sidewalks, curb and
gutter, street trees and boulevard adjacent to the applicant's property.
The City is not requiring you to increase the density of use for your property, but rather this
is your request. It is therefore not a "taking" for the City to agree to your request only upon the
condition that you provide the necessary property to the City in order to comply with the urban
standard roadway in accordance with the Construction and Design Standards of the City.
cc: Jarod Nygren
PJ Sorenson
Sincerely,
Charles A. Harball
City Attorney
Office of City Attomey i
== City of Kalispell—�l'—F
RECREATIONAL LAND VALUE CALCULATION 23 WOODLAND PARK DR
LAND AREA
ALLEYWAY
NET LAND AREA
CITY INVERSE CONEMNATION SHADY GLEN WIDENING
14,880
612
15,492
-500
NET LAND AREA AFTER TAKING
14,992
LAND PRICE/SQ FT
$
4.20
4500 SQ FT X $4.20/SQ FT =
$
18,900.00
PLAY AREA LAND @ 1080 SQ FT
$
4,536.00
BAR-B-QUE & PERGOLA (14'X14')
$
14,500.00
TOTAL VALUE IMPROVEMENTS
$
19,036.00
$19,036 > $18,900 ok
SCARIFY VEGITATION 1080 SQ FT & DISPOSE
$
975.00
IMPORT 100 CU YARD CLEAN FILL
$
1,050.00
COMPACTAND FINE GRADE 1080 SQ FT 90%
$
1,125.00
PCC PAVING @ 244 SQ FT
$
1,830.00
LANDSCAPE IRRIGATION 1080 SQ FT
$
1,600.00
LANDSCAPE GRASS 1080 SQ FT
$
850.00
ROUGH AND FINISH ELECTRICAL
$
1,150.00
ROUGH AND FINISH PLUMBING (GAS SUPPLY)
$
1,320.00
PERGOLA SHADE STRUCTURE 196 SQ FT
$
3,850.00
BAR-B-QUE GRILLE
$
750.00
TOTAL IMPROVEMENT COST $ 14,500.00
WOODLAND APARTMENTS
REQUEST FOR A CONDITIONAL USE PERNHT
KALISPELL PLANNING DEPARTMENT
STAFF REPORT #KCU-19-03
June 28, 2019
This is a report to the Kalispell City Planning Board and Kalispell City Council regarding a request for a
conditional use permit for the construction of a 9-unit apartment building located at 23 Woodland Drive. A
public hearing on this matter has been scheduled before the Planning Board for July 9, 2019, beginning at 6:00
PM, in the Kalispell City Council Chambers. The Planning Board will forward a recommendation to the
Kalispell City Council for final action. Approval of the conditional use permit only authorizes the proposed
land use and does not waive the requirement to obtain the required permits from applicable City of Kalispell
departments.
BACKGROUND INFORNIATION: A request from Woodland Apartments, LLC for a conditional use
permit for multi -family housing within the B-1 Zoning District. Multi -family housing is permitted within
the B-1 Zoning District provided a conditional use permit is obtained per Section 27.12.030 of the Kalispell
Zoning Ordinance. The multi -family project would include one 9-unit building, parking, walkways, trash
disposal area, landscaping, BBQ/Pergola area and bike racks. The proposed building is 2-story (30 feet tall)
with five units on the first floor and four units on the second floor. The units will consist of two efficiency
units approximately 580 square feet, and seven two -bedroom units approximately 1,060 square feet.
Applicant: Woodland Apartments, LLC
P.O. Box 7584
Kalispell, MT 59901
Location and Legal Description of Property: The subject property is located at 23 Woodland Drive. The
property can be legally described as the southern 25 feet of Lot 8 and Lot 9, Block 1 of the Plat of Phillips
Addition to Kalispell in Section 8, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana.
Size: The subject property is .34 acres (14,964 SF)
Existing Land Use and Zoning: The property is undeveloped grasslands with a number of large mature
trees.
The property is located within the B-1 (Neighborhood Business) Zoning District. The Kalispell Zoning
Ordinance describes the intent of this district:
"A business district intended to provide certain commercial and professional office uses where
such uses are compatible with adjacent residential areas. The district would typically serve as
a buffer between residential areas and other commercial districts. Development scale and
pedestrian orientation are important elements of this district. This district is also intended to
provide goods and services at a neighborhood level. The district is not intended for those
businesses that require the outdoor display, sale, and/or storage of merchandise, outdoor
services or operations to accommodate large-scale commercial operations. This zoning district
would typically be found in areas designated as neighborhood commercial or urban mixed use
on the Kalispell Growth Policy Future Land Use Map".
Adjacent Zoning: The zoning surrounding the subject property is as follows:
West: City P-1
North: County B-1
East: County R-5 and City R-3
South: County B-1
Adjacent Land Uses: The land uses surrounding the subject property are as follows:
West: Woodland Park
North: One single-family residence and Conrad Complex
East: Single-family residences
South: Storage facility
Relation to the Growth Policy: The subject property is within the Commercial land use category, which
provides the basis for the B-1, Neighborhood Commercial Zoning. The growth policy would anticipate a
variety of uses under that designation, including, but not limited to, apartments, offices, retail, and other
commercial uses. The requested conditional use permit is an appropriate land use for the property.
Utilities/Services: Sewer service:
City of Kalispell
Water service:
City of Kalispell
Solid Waste:
Private Disposal
Electric:
Flathead Electric Cooperative
Gas:
Northwest Energy
Phone:
CenturyLink
Police:
City of Kalispell
Fire:
City of Kalispell
Schools:
School District 95, Hedges Elementary
A. EVALUATION OF THE REOUEST
This application has been reviewed in accordance with the conditional use review criteria in the Kalispell
Zoning Ordinance. A conditional use permit may be granted only if the proposal, as submitted, conforms to
all of the following general conditional use permit criteria, as well as to all other applicable criteria that may
be requested:
1. Site Suitability:
a. Adequate Useable Space: The property is .34 acres and is adequate in size in order to
accommodate the proposed buildings, parking, trash, recreation area, and stormwater
facilities. A majority of the subject property is flat with a small rise at the northern property
boundary making the majority of the site developable. There are a number of large trees that
will have to be removed in order to allow for the development of the site.
b. Height, bulk and location of the building The structure is proposed to be 2-story with a building
footprint of 4,500 square feet. The proposed building height of 30 feet is well below the 35 feet
2
maximum height permitted. The B-1 Zone and design standard requirements give due
consideration to the height, bulk and location of the proposed apartment building.
C. Adequate Access: The apartment building will be gaining its access via a private driveway that
connect to Shady Glen Drive, an improved public roadway. The private driveway is required
to meet the minimum 24 feet width requirement for ingress and egress.
d. Environmental Constraints: There are no known environmental constraints, such as steep
slopes, streams, floodplains, or wetlands, on the property, which could affect the proposed use.
2. Appropriate Design:
a. Parking Scheme/Loading: The development shall comply with the Off -Street Parking
and Design Standards as set forth in Chapter 27.24 of the Kalispell Zoning Ordinance. The
project consists of two efficiency units, which require 1 parking space each and seven units
with more than 1 bedroom, which require 1.5 parking spaces each. As configured, the 9-unit
building requires 12.5 parking spaces. The parking standards also allow for a parking reduction
of one parking space for every bicycle rack (minimum space for five bicycles) provided. The
applicant is providing one bike rack, reducing their parking requirement to 12 spaces. The
project site plan shows 12 parking spaces, therefore, meeting the minimum parking requirement
for the number of units proposed.
b. Lighting: Chapter 27.26 of the Kalispell Zoning Ordinance sets standards for all outdoor
lighting on commercial or residential structures. Exterior lighting installed in conjunction with
the development will be reviewed for compliance with the zoning ordinance during site
development review.
Traffic Circulation: The apartment will gain their access via a private driveway that connects
to Shady Glen Drive. Shady Glen Drive connects to a network of streets in the vicinity,
providing adequate traffic circulation.
d. Open Space: The proposed apartment is required to meet the setbacks required by the B-1 Zone,
which provides for open spaces around the units. There is also additional open space between
the proposed units and Shady Glen Drive that totals about 1,200 square feet and landscaping to
the east of the building that equals about 1,000 square feet.
e. Fencin Screenin Landscaping: To ensure the property is fully landscaped and is compatible
with the surrounding neighborhood, a landscape plan for the entire site shall be submitted along
with the building permit. The landscape plan shall be approved by the Parks and Recreation
Department prior to issuance of the building permit.
Fencing for the units will have to comply with Section 27.20.040 of the Kalispell Zoning
Ordinance.
Signage: The development shall comply with all of the sign standards as set forth in Chapter
27.22 of the Kalispell Zoning Ordinance. At this point no signs are being proposed.
3
3. Availability of Public Services/Facilities:
a. Police: Police protection will be provided by the Kalispell Police Department. No unusual
impacts or needs are anticipated from the proposed multi -family use.
b. Fire Protection: Fire protection will be provided by the Kalispell Fire Department. There is
adequate access to the property from the public road system and the buildings will be
constructed to meet current building and fire code standards. Station 61 is 1 mile from the site
and response time will be good.
C. Water: City of Kalispell water infrastructure is located within the west side of Woodland Park
Drive to the southwest. The developer will be required to pay the cost for service line
connections for the proposed units. The developer is also required to pay the cost for the water
main extension from the existing main to the east property line of the subject property.
d. Sewer: City of Kalispell sewer infrastructure is located within Shady Glen Drive to the south.
The developer will be required to pay the cost for service line connections for the proposed
units.
e. Storm Water Drainage: Storm water runoff from the site shall be managed and constructed per
the City of Kalispell Construction and Design Standards. Prior to receiving a building permit
the developer will need to submit a construction stormwater management plan to the Public
Works Department. The applicant has not clearly shown the location of the required stormwater
system, however, underground stormwater facilities are a possibility provided the city water
quality and detention requirements are also provided. Storm water installed in conjunction with
the development will be reviewed for compliance with the city standards during site
development review.
Solid Waste: Solid waste pick-up will be provided by a private company. There is sufficient
capacity within the landfill to accommodate the additional solid waste generated from the
subdivision.
g. Streets: The proposed apartment fronts Shady Glen Drive on the south and Woodland Park
Drive on the west. Both Shady Glen Drive and Woodland Park Drive need to be improved to
city standards including curb, gutter, boulevard, sidewalk, and trees along the property
frontages of those streets.
h. Sidewalks: Sidewalks are not currently available, however, as part of the building permit
process the developer will be required to improve the adjacent right-of-ways to city standards,
which will include sidewalks. Sidewalks will also be required to connect from the building to
the sidewalk system being constructed with the public right-of-ways.
Schools: This site is within the boundaries of School District #5. A very minor impact to the
district may be anticipated from the proposed apartments depending on the demographics of
the residents. On average four students K-12 would be anticipated from nine dwelling units.
Parks and Recreation: Section 27.34.060 of the Kalispell Zoning Ordinance requires 4,500
square feet of recreational land or a combination of equivalent recreational amenities based on
4
500 square feet of land per residential unit based. The site plan indicates 2,200 square feet
landscaped recreational area, pergola, and BBQ area. The recreational value will be determined
by the Parks and Recreation Director at time of building permit.
4. Neighborhood impacts:
a. Traffic: The apartments will not have a significant impact on the traffic generated in the area.
It is anticipated that each unit will produce approximately 9.57 trip ends/day (Per TTE trip
generation model). The nine units would generate approximately 86 trips per day cumulatively.
The width and quality of Shady Glen Drive and Woodland Park Drive are more than adequate
to handle the additional traffic load.
b. Noise and Vibration: Other than during construction, the apartments will not create any
objectionable noise and vibration beyond what would normally be associated with residential
housing.
C. Dust, Glare, and Heat: Other than during construction, the apartments will not create any
objectionable dust, glare, and heat beyond what would normally be associated with residential
housing.
d. Smoke, Fumes, Gas, or Odors: Other than during construction, the apartments will not create
any objectionable smoke, fumes, gas, or odors beyond what would normally be associated with
residential housing.
e. Hours of Operation: Hours of operation does not apply to this project since it is for residential
purposes. If a home based occupation were to occur the residents would have to comply with
the home based occupation section of the zoning ordinance, outlined in Section 27.20.060 of
the Kalispell Zoning Ordinance.
5. Consideration of historical use patterns and recent changes: All of the properties located along
Woodland Park Drive are commercial, as they provided a buffer between the arterial roadway and the
lower density residential development further to the east. The proposed multi -family housing is an
appropriate use within the commercial zone and will function as a transition from the arterial roadway
into the single-family residential development to the east. A market study conducted by Property
Dynamics — Mill Creek, Washington, indicated that in the summer of 2017 indicated there was a
0% vacancy of multi -family units within the Kalispell area, indicating a strong need for additional
housing options. Although the study is nearing two years old, there has been no indication that the
vacancy rate within Kalispell has improved.
6. Effects on property values: No significant negative impacts on property values are anticipated as
a result of the requested conditional use of the property. It can be assumed that property values will
increase since city services to the property are being added and the property is currently
undeveloped.
B. RECOMIVVIENDATION
The staff recommends that the Planning Board adopt staff report #KCU-19-03 as findings of fact and
recommend to the Kalispell City Council that the conditional use permit be approved subject to the conditions
5
listed below.
CONDITIONS OF APPROVAL
That commencement of the approved activity must begin within 18 months from the date of
authorization or that a continuous good faith effort is made to bring the project to completion.
2. The building permit application site plan and elevations shall substantially comply with the approved
site plan.
3. To ensure the traffic flow and access comply with Kalispell Design and Construction Standards, the
development shall receive Site Review Committee approval prior to issuance of the building permit.
4. The developer shall submit to the Kalispell Public Works Department for review and approval a
stormwater report and an engineered drainage plan that meets the requirements of the City of
Kalispell Construction and Design Standards.
5. The developer shall submit water and sanitary sewer plans, applicable specifications, and design
reports to the Kalispell Public Works Department with approval prior to construction.
6. The developer shall submit to the Kalispell Public Works Department prior to construction an
erosion/sediment control plan for review and approval and a copy of all documents submitted to
Montana Department of Environmental Quality for the General Permit for Storm Water Discharge
Associated with Construction Activities.
7. Shady Glen Drive and Woodland Park Drive shall be upgraded to an urban standard in accordance
with the City of Kalispell Construction and Design Standards the length of the property. Upgrades
include sidewalks, curb and gutter, street trees and boulevard adjacent the applicant's property.
8. To ensure the property is fully landscaped and is compatible with the surrounding neighborhood, a
landscape plan shall be submitted along with the building permit. The landscape plan shall be in
substantial compliance with the submitted renderings and approved by the Parks and Recreation
Director prior to issuance of the building permit.
9. A minimum of 500 square feet of land per unit which has recreational value as determined by the
Kalispell Parks and Recreation Director, or recreational amenities equivalent to the fair market value
of 500 square feet of land shall be provided on -site.
10. A letter from the Public Works Department shall be submitted to the Building Department stating
that all new public infrastructure has been accepted by the City of Kalispell.
11. The bike rack shall provide a minimum area for five bicycles.
12. The two lots shall be consolidated into one lot prior to building permit issuance.
2
KALISPELL CITY PLANNING BOARD & ZONING COMMISSION
MINUTES OF REGULAR MEETING
July 09, 2019
CALL TO ORDER AND ROLL CALL
The regular meeting of the Kalispell City Planning Board and Zoning
Commission was called to order at 6:00 p.m. Board members present were Chad
Graham, Doug Kauffman, Kurt Vomfell, Joshua Borgardt, Rory Young, George
Giavasis & Ronalee Skees. Tom Jentz represented the Kalispell Planning
Department.
APPROVAL OF MINUTES
Kauffman moved and Skees seconded a motion to approve the minutes of the
May 141h & May 22"d, 2019 meetings of the Kalispell City Planning Board and
Zoning Commission.
VOTE BY ACCLAMATION
The motion passed unanimously on a vote of acclamation.
PUBLIC COMMENT
None.
KCU-19-03 — WOODLAND
File # KCU-19-03 — A request from Woodland Apartments, LLC for a
APARTMENTS CONDITIONAL USE
conditional use permit for multi -family apartments with the B-I (Neighborhood
PERMIT
Commercial) Zoning District.
STAFF REPORT
Jarod Nygren representing the Kalispell Planning Department reviewed Staff
Report #KCU-19-03.
Staff recommends that the Kalispell City Planning Board and Zoning
Commission adopt staff report #KCU-19-03 as findings of fact and recommend
to the Kalispell City Council that the conditional use permit be approved subject
to the conditions listed in the staff report.
BOARD DISCUSSION
Board discussed layout of the site and location of the trash bins, parking,
sidewalks and buffers. Young inquired about the partial alley on the east side of
the property and whom it belongs to. Staff advised it currently belongs to the
county.
PUBLIC HEARING
Mary McLoy — 525 Shady Glen Dr. — opposed to proposed trash location, feels
it is too close to her property and his concerned about the smell.
Randy Davis — 529 Shady Glen Dr. — concerned with additional traffic.
Chris McLoy — 525 Shady Gen Dr. — opposed to trash location and additional
traffic.
Shane Komenda — 533 Shady Glen Dr. — concerned with additional traffic in
regards to pedestrian safety.
Brian Topp — 1496 Whalebone Dr. — family friend of the McLoy's, spends a lot
of time at their home, and is concerned with additional traffic.
Denise Stone — 529 Shady Glen Dr. — concerned with safety of children with
increased traffic.
MOTION (ORIGINAL)
Vomfell moved and Skees seconded a motion that the Kalispell City Planning
Board and Zoning Commission adopt staff report #KCU-19-03 as findings of
fact and recommend to the Kalispell City Council that the conditional use
permit be approved subject to the conditions listed in the staff report.
BOARD DISCUSSION
Board discussed the possibility of screening or shielding the trash enclosures.
Staff advised the board that it is within their purview to add a condition to
require that the trash enclosures be enclosed to screen from the neighbor directly
to the east. Borgardt inquired about the partial alley that is owned by the county
and if it would help with the trash location if it was annexed into the city. Staff
advised that the owners could petition to have it abandoned if they so choose.
Kalispell City Planning Board
Minutes of the meeting of July 9, 2019
Page ll
MOTION (ADD COND. #13)
Skees moved and Graham seconded a motion to add condition #13 to require
that the applicant completely enclose the trash containers to include walls, doors
and a roof.
BOARD DISCUSSION
None.
ROLL CALL (ADD COND. #13)
The motion passed 6-1 on a roll call vote. Rory Young is opposed to adding the
condition.
ROLL CALL (ORIGINAL)
The motion passed unanimously on a roll call vote.
OLD BUSINESS
None.
NEW BUSINESS
Jentz updated the board on the August 13 agenda.
ADJOURNMENT
The meeting adjourned at approximately 7:25pm.
NEXT MEETING
The next meeting of the Kalispell Planning Board will be on Tuesday, August
13, 2019 at 6:00 p.m. and is located in the Kalispell City Council Chambers,
201 151 Ave East.
� �16' -"� Lk:q-o w
Chad Gra am
President
APPROVED as submitted/amended
Kari Hernandez
Recording Secretary
Kalispell City Planning Board
Minutes of the meeting of July 9, 2019
Page 12
City of Kalispell
Charles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
TO:
FROM:
SUBJECT:
DATE:
RESPONSE TO APPEAL
BY WOODLAND APARTMENT LLC
TO SITE REVIEW DETERM[NATION
Doug Russell, City Manager
Charles Harball, City Attorney
Tel 406.758.7709
Fax 406.758.7758
charball@kalispell.com
Woodland Apartments LLC Appeal of Site Review Determination
December 3, 2020
Basis of Appeal: In June 2019, Woodland Apartments LLC, the applicant, applied for a conditional
use permit to construct a nine -unit apartment complex at 23 Woodland Park Drive/517 Shady Glen
which is in a city B-1 (Neighborhood Business) zone. On August 5, 2019 after considering the
materials provided by staff as well as the recommendations of the planning board, and considering the
oral testimony offered, the City Council adopted the staff report as its findings of fact and issued a
conditional use permit subject to 13 conditions. Among the conditions are compliance with Kalispell
Design and Construction Standards which includes upgrading sidewalks, curb and gutter, street trees
and boulevard adjacent to the applicant's property. The standard oversight by the Site Review
Committee was also included in the conditions.
Because of the layout of the applicant's property, in order to fit the necessary public infrastructure
improvement upgrades called out by the Kalispell Design and Construction Standards within the right-
of-way, approximately 2.5 feet along Shady Glen and a triangle containing approximately 135 square
feet in the northwest corner of the property along Woodland Park Drive owned by the applicant were
required to be dedicated to the City. Dedication requirements for public infrastructure along and
serving a private development are not unusual.
The applicant responded to this dedication requirement by deducting it as a government taking of this
portion of his property without just compensation in the Recreational Land Value Calculation used for
parkland requirements. He was notified by the Site Review Committee that, among other requirements,
he must, "4. Update recreational amenity calculation to remove reference to condemnation prior to
issuing a building permit." It is from this requirement that the applicant now appeals.
Issues of the Appeal:
1) Are the findings made by the Council, incorporating the staff report, consistent with the
evidence provided in the report and by oral testimony?
2) Are the conditions of the Conditional Use Permit consistent with the Council's findings?
3) Is the required dedication of applicant's land related both in nature and extent to the
impact of the proposed development?
RESPONSE TO APPEAL BY WOODLAND APARTMENT LLC
TO SITE REVIEW DETERMINATION
December 3, 2020
Page - 2
Argument:
1. Are the findings made by the Council, incorporated in the staff report, consistent with the
evidence provided in the report and by oral testimony?
In considering this application for a conditional use permit the City Council had before it the complete
staff report of the project with a recommendation for approval under a set of conditions, as well as the
transmittal letter and minutes from Kalispell Planning Board with a recommendation for approval
under the same set of conditions recommended by the city staff (other than the addition of shielding
trash containers). Oral testimony was also given by staff to augment the staff report.
The minutes of the Planning Board contained the testimony of several neighbors concerned about the
increase in traffic that would be produced by the intensity of the development as well as for the safety
of the pedestrians. The conditions recommended by the city staff were to require compliance with the
City's approved Design and Construction Standards which includes upgrading sidewalks, curb and
gutter, street trees and boulevard adjacent the applicant's property. The City has adopted a
Transportation Plan through a public process that included the full consideration and action of the City
Council. This Plan also addresses improvements to those streets adjacent to the applicant's property
that would be required upon development of the property.
The applicant makes particular note of the fact that a planning staff member testified that the streets
adjacent to the applicant's development would be able to handle the increased traffic caused by the
increased density of the project. This testimony was a response to the concern expressed by some of
the neighbors and was also reflective of the fact that these concerns would be addressed through
compliance with the design and construction standards and transportation plan.
Prior to approving the conditional use applied for by the applicant and issuing the Conditional Use
Permit containing the conditions that required compliance with its previously approved standards, the
City Council received no evidence or request from the applicant to deviate from those standards. The
City Council's findings were therefore consistent with the evidence it was provided.
2. Are the conditions of the Conditional Use Permit consistent with the Council's findings?
The City Council adopted the staff report as its findings of fact. The conditions included in the
Conditional Use Permit that it issued were also consistent with the conditions recommended in the
staff report, as amended by the Planning Board (added shielding to trash receptacles). The basis for
the applicant's appeal to the Site Review Committee's disallowing the reference to the condemnation
of his property by the City is his own legal conclusion that the dedication of a portion of his property
for public infrastructure is inconsistent with the City Council's findings that the conditional use he was
requesting was otherwise appropriate. Such a conclusion ignores the many findings and actions of the
City Council in the development and approval of its design and construction standards and
transportation plan. As there was no specific evidence ever presented to the City Council that would
recommend that its design and construction standards and transportation plan should not be applied to
this specific development, the Conditional Use Permit was consistent with the Council's findings.
Office of City Attorney
City of Kalispell
RESPONSE TO APPEAL BY WOODLAND APARTMENT LLC
TO SITE REVIEW DETERMINATION
December 3, 2020
Page - 3
3. Is the required dedication of applicant's land related both in nature and extent to the impact of
the proposed development?
Although general design and construction standards and transportation plans are important guidelines
to consider when evaluating a specific private development, consideration must also be given
whenever a dedication of private land is required for public infrastructure. The rule established by
Dolan v. City of Tigard - 512 U.S. 374, 114 S. Ct. 2309 (1994) and which applies to the issue of this
appeal is that although no precise mathematical calculation is required for a rough proportionality test,
a city must make some sort of individualized determination that the required dedication is related both
in nature and extent to the impact of the proposed development.
The nature of the impact in this case is that the existing transportation infrastructure is essentially a
rural road cross section and therefore has a lack of proper roadway width and sidewalks to support
much additional residential density. These concerns were expressed by the neighbors who opined that
nine more residential units on that short stretch of roadway would add the incremental density to
compromise the safety of the residents. The transportation plan and design and construction standards
of the City would address these concerns requiring the adequate widening of the roadway and add
sidewalks to separate the pedestrian and vehicular traffic.
The extent of the impact upon the applicants property was limited to the dedication of approximately
2.5 feet along the Shady Glen length of the property and a triangle containing approximately 135
square feet in the northwest corner of the property along Woodland Park Drive. This limited impact
was accomplished through the reasonable concessions of the City to only require the applicant to
provide enough right-of-way along Woodland Park Drive to provide a minimum of 6 feet of boulevard
for snow storage and although the road would be improved by installing curb and gutter and sidewalk,
it was not required to be widened beyond its existing width. In order to bring Shady Glen Drive up to
minimum city Standards, it would have been necessary to widen it by approximately 5 feet. The
applicant, however, was only required to widen his side of the street by 2.5 feet with the additional
widening to be provided as some later date, when the property on the other side of the street is further
developed. The City further reasonably approved five other deviations on the development, taking into
consideration the limitations in lot size.
Based upon these actions the City clearly applied a reasonable individualized determination regarding
the extent of the impact the required public infrastructure dedication has on the applicant's property.
The City Council should therefore find that the required dedication of applicant's land relates both in
nature and extent to the impact of the proposed development.
Attachments:
Report from PJ Sorenson, Senior Planner, Development Services Department
Report from Keith Haskins, City Engineer, Public Works Department
Office of City Attorney
City of Kalispell
CITY OF
KALISPELL
REPORT TO: Doug Russell, City Manager
FROM: PJ Sorensen, Senior Planner
Development Services Department
201 1st Avenue East
Kalispell, MT 59901
Phone: (406) 758-7940
Fax: (406) 758-7739
www.kalispell.com/planning
SUBJECT: Site Review Appeal — Woodland Apartments
MEETING DATE: December 7, 2020
BACKGROUND:
Site Review Process
New commercial, industrial, and multi -family developments, as well as additions and
remodels with a change of use, go through our city Site Development Review Committee. The
purpose of site review is to promote the general health and welfare by encouraging attention to
site planning and giving regard to the natural environment, creative project design, and the
character of the neighborhood.
Site Review consists of representatives from most of the departments in the City and
MDOT. Meetings are held every week. It is an effort to coordinate plan reviews by the different
departments under existing regulations such as the zoning ordinance, Public Works design and
construction standards, fire code and the landscape ordinance. In situations where there is a
conditional use permit granted by the City Council, it is an opportunity to ensure that those
conditions are met.
The process typically begins when an applicant submits a building permit application to
the Building Department. It is then placed on the site review agenda while each department
conducts their individual review. It remains on the agenda until all of the reviews are completed
to ensure that any issues have been addressed and that there are no conflicts between any
approvals. Site review needs to be completed prior to issuing the building permit for the project.
Section 27.20.120(4) allows an applicant to appeal any decision made by Site Review to the City
Council through the City Manager.
Woodland Apartments Conditional Use Permit
In June 2019, Paul Bardos (Woodland Apartments) submitted an application for a
conditional use permit to construct a nine (9) unit apartment complex at 23 Woodland Park
Drive/517 Shady Glen. The conditional use permit is required due to its location in a B-1
(Neighborhood Business) zone. The matter was considered by the Planning Board at its July 9,
2019 meeting and was granted by the City Council at is August 5, 2019 meeting subject to 13
conditions.
Conditional use permits are discretionary, as opposed to permitted uses, which are
allowed as a matter of right. They are subject to review criteria contained in Section 27.33.080
of the zoning ordinance which are intended to ensure that the proposed use has no more impact
on the neighborhood than generally permitted uses in the zoning district. Under Section
27.33.090, the burden of proof for satisfying review criteria rests "with the applicant and not the
City Council. The granting of the Conditional Use Permit is a matter of grace, resting in the
discretion of the City Council and a refusal is not the denial of a right, conditional or otherwise."
Based on the record, the Council can approve, conditionally approve, or deny a conditional use
permit request under Section 27.33.030(3), provided that it does not abuse its discretion.
In other words, a conditionally permitted use is typically a higher intensity use than what
is normally found in a given zone, and has a review process which allows an applicant to show
that any impacts on the neighborhood are appropriately mitigated through the specific design of
the project and any conditions that might be attached. Based on the application, the record, the
Kalispell Planning Department staff report, and its due consideration, the Council granted the
conditional use permit subject to 13 conditions without objection from the applicant. Included
within those conditions were the following:
3. To ensure the traffic flow and access comply with Kalispell Design and
Construction Standards, the development shall receive Site Review Committee
approval prior to issuance of the building permit; and
7. Shady Glen Drive and Woodland Park Drive shall be upgraded to an urban
standard in accordance with the City of Kalispell Construction and Design
Standards the length of the property. Upgrades include sidewalks, curb and gutter,
street trees and boulevard adjacent the applicant's property.
The basis for the upgrade for the two streets begins with the Kalispell Transportation
Plan, which is a document previously adopted by the City Council. It shows Woodland Park
Drive as a Minor Arterial and Shady Glen as a local street:
Shady Glen
PRINCIPAL ARTERIAL
MINORAMERIAL
COLLECTOR
---- TRANSPORTATION PLAN BOUNDARY
- FUTURE HWY 939YPASB
The minimum right-of-way width is 80 feet for an arterial and 60 feet for a local street.
Each includes a standard profile with a sidewalk, boulevard, curb/gutter, and other
improvements. Besides handling vehicular traffic, those improvements address other impacts
such as pedestrians and storm run-off. Under the City of Kalispell Design and Construction
Standards, previously adopted by the City Council, all developments need to comply with these
standards (Section 4.1.1.A) and extend necessary improvements to the far property line of the
development (Section 4.1.1.C). Except for single-family and duplex building permits, any
subdivision or other development would need to make these upgrades to comply with the
Transportation Plan and the Design and Construction Standards. In order to fit the necessary
improvements within the right-of-way, approximately 2.5 feet along Shady Glen and a triangle
containing approximately 135 square feet in the northwest corner of the property along
Woodland Park Drive need to be dedicated to the City.
Woodland Apartments Site Review
The applicant submitted partial plans in March 2020 and staff began to review the
project. There were a number of review comments and resubmittals culminating in a conditional
approval on October 22. The site review approval had six conditions which needed to be
satisfied prior to issuing a permit. Condition number 4 is the specific condition appealed by the
applicant, and per the appeal application "it is only item 94 of Site Review's conditional
approval that is before the Council in this appeal."
Condition number 4 stated:
Update recreational amenity calculation to remove reference to condemnation
prior to issuing a building permit.
The recreational amenity is a code requirement reflected in condition 9 of the CUP which
requires a minimum of 500 square feet of land per unit with recreational value, or recreational
amenities equivalent to the fair market value, to be provided on -site. The recreational amenity
calculation submitted by the applicant noted a "city inverse condemnation Shady Glen widening"
and "net land area after taking." The reason for requiring the removal of the language is to
prevent any explicit or implicit inference that the City would agree with that interpretation,
which the City clearly does not.
During the course of the review, staff worked with the applicant to make deviations from
other standards where allowable under the city regulations to fit improvements on the property
with the new boundaries. Public Works granted 5 deviations relating to the location of the storm
drainage facilities, including the setback from the right-of-way. The Planning Department
granted an administrative adjustment to reduce a required buffer between the parking and right-
of-way line. These deviations minimized any potential impact on the site design which may
have occurred with the right-of-way dedication.
The other site review conditions include three documents to be recorded (lot aggregation,
right-of-way deed, and a waiver of protest to an SID). They are ready to be recorded once
condition 4 is addressed. The other remaining condition relates to a final design of the
recreational amenity. The sixth condition was a landscaping detail which has been satisfied.
Otherwise, the permit has been ready to be issued for some time.
Conclusion
The Woodland Apartments project was appropriately considered by the City Council
when it issued the conditional use permit for the apartments. The permit included conditions
related to upgrades to the adjacent streets. Site Review reviewed the submitted plans under
existing regulations as well as the conditions placed on the project by the Council. Site Review's
conditional approval of the project was reasonable, appropriate, and consistent with city
regulations and the Council conditions.
RECOMMENDATION: The appeal of condition 4, which requires the removal of the
condemnation reference from the recreational amenity calculation, should be denied.
ALTERNATIVES: Grant the appeal and allow the permit to be issued with the assertion of the
condemnation claim.
Report compiled: November 17, 2020
Aimee Brunckhorst, Kalispell City Clerk
Public Works Justification for Right -of -Way at Woodland Apartments
Applicable Provisions from Planning Documents, Standards, Ordinances, and Resolutions:
1. Per the Kalispell Transportation Plan (current at the time of review):
• Woodland Park Drive is classified as a Minor Arterial
• Shady Glen is classified as a local street
PRINCIPAL ARTERIAL
MINORARTERIAL
COLLECTOR
•••• TRANSPQRT-;TIQHPLAN 9QLJNOARY
� FUTURE H'A"' M BYPASS
2. Per the City of Kalispell Design and Construction Standards:
• All subdivisions and developments shall comply with the CK Subdivision Regulations and
these Standards. §4.1.1.A
• Roadways and utilities shall be constructed from the existing facilities to the far
property line of the development or such other point within the development that may
be specified by the City Engineer.§4.1.1.B
• Obtain and provide the City with all easements and right-of-ways necessary to extend
roadways and utilities to the far property line of the development. §4.1.1.0
• Roadway systems, including private roadways, shall be designed in accordance with the
current edition of the Standards, the current Manual on Uniform Traffic Control Devices,
the current Kalispell Area Transportation Plan, and the CK Subdivision Regulations. Any
conflicts or differences in these documents shall be resolved in favor of the Standards.
§8.1.1.A
• All roads within a proposed subdivision shall be designed by a professional engineer and
approved by the City Engineer. § 8.1.1.B
• Minimum right of way: Arterial = 80 ft; Collector = 60 ft; Local = 60 ft (Table 7, pg 94)
10'
60' RICAT OF WAY
10' 5' fi' 17' 17' —6.15 10'
�•+•77
77.•+•�
Ln L ,
x E,1SEKIENt . • x ' , , • x y
a - ADA SI WALK � r
RASAP, TYP.
—PAVEMENT MARKINbs
AS :REQUIRED,
$" WHIT CRC$$IYA4r
-PAVEMENT MARKING$
AS REQuiREI],
24" WHITE FLOP kR — —
STREET hNg
SrOP $IGN, rrP.
w w w wOE �, w
$70P6A5 Arn GAH
4 s
6G' RIGHT OF WAY
PROPEM LINE FILLET,
•I 5' x 5'
80' x EV CLEAR
MIS ON TRWICLE
*I
10'
SIDEWALK CURB AND
GUTTER
BDULEVARD 17' 17'
2 2°
T4" ASPHALT
6 CRUSHER SASE
VY, svD-eaSE
40'
(DSEE ROAD CONSTRK7I0N GENERA- NOTES FOR WTERIAL SPECIFICATIO.'IS
UTILITY NOTE'
ALL NEW UTILI-IE5. SHALL BE PLACED UNDERGROUND. EXCEPT FOR SEWER AND WATER, UNDERGROUftD
UTILITIES, IF PLACED IN RICITI- OF WAY OR E:A5EMENT SHALL BE LOCATED BETWEEN THE dALCK OF SIDEWALK
AND EASEMENT LINE. NO UNDERGROUND UTILITIES SHALL BE PLACED IN 7HE BOULEVARD BETWEEN T-1E
E�XCK OF CURa AND 510F.WALK.
j + /� `{shy + {gyp
1T_1 URBAN COLLECTO'C
Figure 1- Standard Detail for an Urban Collector
10'
60' RIGHT OF WAY
14' 5' 9' 14 14' 9 5' 10'
I t
EASEMENT I SIDEWALK
EASEMENT
�5—L t� ADA SI DEWW1{ 4;L0'- ir1"
RIGHT OF 'NAY
SIDEWALK CURB AND
GLMER
BOULEVARD Ih'Jib-
2% 29
14" ASPHALT�
' CRUSIIED DOSE
SUS —SASE
34'
(*)SEE ROAD CDNSTR::CT1ON GENER+V- NOTES FOR MATERIAL SPECIFICATIONS
ZILfTY NQTE:
ALt NEW UTUDES $HALL BE PLACED U"DER ROUND. EXCEPT FOR SEWER AND WATER, UNDERGROUND
UTILITIES, IF PLACED IN WHT OF WAY OR EASEMENT SHALL BE LOCATED BETWEEN THE BACK 4F $Ip ml-K
AFAR EASEMENT UNE, NO UNDERGROUND UTILITIES SHALL BE PLACED IH THE 80UlEV RD BETWEEN THE
BACK OF CURB AVID SIDEWALK.
ST,3 URBAN LOCAL
Figure 2 - Standard Detail for a Local Street
3. Per the City of Kalispell Extension of Services Plan (Resolution 4937 — 2004)
• It is the responsibility of the developer or property owner to design, construct and
finance all new public or private infrastructure. This would include but not be limited to
the water and sewer systems mains, reservoirs, pump stations, culverts, storm water
drainage systems, roadways, sidewalks, curbs, gutters, landscaping, street lighting and
necessary right-of-way extensions. These would be designed and constructed in
accordance with the Kalispell Extension of Services Plan and Kalispell Standards for
Design and Construction. Infrastructure improvements shall be of adequate size and
design to accommodate the needs of the proposed development. In the even that a
development creates impacts requiring off -site improvements, the Kalispell City Council
will determine whether the developer shall wholly or partially bear the costs of such
improvements. (Chapter 6 — General Policies — Item 1— pg 22)
4. Per the Zoning Ordinance:
• Major Site Plan Approval — Commercial, Industrial, and multi -family developments and
remodeling of existing structures when a change in use or structural expansion would
result ... § 27.20.120.3
• Review Authority for Major Site Plan Approval. A "Site Development Review
Committee" has the authority to review and require revisions to any major site plan.
Said committee shall consist of the head of each department in the city or his/her
designee and any other staff members so designated by the city manager.
§27.20.120.(3)(c)
• Power to Amend Plans. When approving an application for a site design and use, the
Site Development Review Committee will include any or all of the following conditions,
if they find it necessary to meet the intent and purpose and the criteria for approval of
this ordinance: §27.20.120(3)(d)
• Require new developments to provide limited controlled access onto a public street by
means of traffic signals, traffic controls and turning islands, landscaping, or any other
means necessary to insure the viability, safety, and integrity of the public street as a
true corridor. In some cases, the city may require the developer to provide off -site
improvements and right-of-way consideration, including but not limited to water,
sanitary sewer, storm drainage, street improvements, pedestrian ways, lighting and
signalization. The city may require the developer to also furnish the city with
appropriate engineering studies regarding the various impacts that the development
might have on the city's public facilities as per the City's standards for design and
construction.§27.20.120(3)(d)7
5. Per the Subdivision Regulations (although this is not a subdivision, developments are referenced
in the Design and Construction Standards as previously listed in Item 2 above)
• When a subdivision abuts an existing local, collector or arterial street, this street shall be
upgraded as follows:
If the required R/W for the abutting street is deficient, the subdivider shall
provide at a minimum one-half of the required R/W to bring the road up to a
minimum standard for the design classification of the street.
ii. The subdivider shall at a minimum bring the abutting road profile up to city
standards including sidewalk, boulevard, street trees, curb and gutter on the
subdivision side of the street.
iii. The subdivider shall upgrade the travel surface to the centerline of the street
but in no event shall the overall street travel surface be less than the minimum
required travel surface for a full street. §28.3.141
Findings:
1. Woodland Park Drive is classified in the Transportation Plan as a Minor Arterial, requiring a
minimum of 80' of right-of-way and minimum pavement width as approved by the City Engineer
(Collector Street = 34' TOC to TOC) per the Design and Construction Standards.
• Current right-of-way varies along the length of the property frontage.
• Current width is approximately 26' (EOP to EOP)
2. Woodland Park Drive is not centered in the right-of-way. In order to improve the road to
minimum standards on the development's half of the street, the roadway would have to be
moved west. This would be necessary to provide a full boulevard for snow storage and room for
the sidewalk installation. The road is currently without curb, boulevard, or sidewalk.
3. Shady Glen Drive is classified in the Transportation Plan as a local street, requiring a minimum
right-of-way width of 60' and minimum pavement width of 28' (TOC to TOC) per the Design and
Construction Standards.
• Current right-of-way is 55 feet. Per the Subdivision Regulations adopted by City
Standards for development, 2.5' of right-of-way will be required to be dedicated on the
development's side of the street.
• Current street width is approximately 22' (EOP to EOP)
4. Shady Glen Drive is currently without curb, boulevard, or sidewalk.
5. Per ITE Trip Generator, a Land Use Code:220 — Multifamily Housing (Low -Rise) has the following
associated trips:
• Weekday:66 RZ=0.96
• Saturday:73 RZ=0.93
• Sunday:57 RZ=0.96
6. Because the number of trips is calculated to be under 300 vehicle trips per day, per City
Standards a Traffic Impact Analysis is not required.
Discussion:
Per the "Applicable Provisions from Planning Documents, Standards, Ordinances, and Resolutions" listed
above, the development was found to require upgrades to meet minimum City Standards for both
Woodland Park Drive and Shady Glen Drive. Both Streets are currently constructed to a rural cross
section lacking curb and gutter, sidewalk, boulevard, street trees, ext.
In order to bring Woodland Park Drive up to minimum City Standards, the road needs be widened to a
minimum of 34' pavement width and 38' from back of curb to back of curb. Preliminary discussions with
the engineer for the project indicated that Woodland Park Drive was offset to the east side of the right-
of-way. To bring the street up to minimum standards, the entire street would have to be offset to the
west and rebuilt. This upgrade would require offsite construction to make the street match back into the
existing road.
In lieu of requiring Woodland Park Drive to be rebuilt in the center of the existing right-of-way, Public
Works ultimately agreed to only require the development to provide enough right-of-way to provide a
minimum of 6 feet of boulevard for snow storage. The road would be improved by installing curb and
gutter and sidewalk. However, the road was not required to be widened beyond its existing width.
These concessions only required a triangular right-of-way dedication in the northwest corner of the
property to as necessary to install curb and gutter, 6' of boulevard, and sidewalk upgrades on the
development side of Woodland Park Drive.
To bring Shady Glen Drive up to minimum city Standards, the development side of the street (north side)
needs to be widened by approximately 5', curb and gutter installed, a 9' boulevard provided, and a 5'
sidewalk installed. The current right-of-way width is 55'. To get up to the required minimum width of
60', each side of the street needs to dedicate 2.5' of right-of-way. The 2.5' on the other side of the street
would be dedicated with a future project.
Other Discussion:
Commercial sites in the City of Kalispell often require upgrades and right-of-way dedications. Two recent
examples of this are the Glenwood Apartments and the Crossings at Spring Creek which are both
adjacent to 2 Mile Drive. Both projects were/are required to upgrade the street to minimum City
Standards including curb and gutter and sidewalk. Additionally, the Glenwood Apartments project
dedicated a similar amount of right-of-way (about 4'). These improvements not only bring the street up
to the standard expected by the public of the City of Kalispell, but also provide the infrastructure
necessary to for the City of Kalispell to provide an equitable level of service into the future. The
boulevard is critical for snow storage during winter operations and allows placement and access to city
infrastructure such as curb stops, meter pits, fire hydrants and street lights. Curb and gutter and storm
sewer improvements transmit storm water to catch basins which the city is equipped to maintain.
Sidewalk provides necessary pedestrian facilities as the development occurs, keeping pedestrians out of
the streets and ditches and providing pedestrian connections.
The Public Works Department approved 5 deviations on this project in consideration of the limitations in
lot size.
1. Deviation in the required setback of storm water facilities from a building foundation.
2. Deviation in the size of maintenance access ports for the underground infiltration system.
3. Deviation in the required setback from infiltration facilities.
4. Deviation to not require an emergency spillway on the underground infiltration facility.
5. Deviation from the required setback from stormwater facilities to the property line (in this case
the street right-of-way).