H1. Res. 6008 Woodland Apartments 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
Resolution 6008 — City Council Decision on Woodland Apartments LLC
Appeal of Site Review Committee Determination
December 21, 2020
DISCUSSION: Pursuant to Kalispell Municipal Code §27.20.120(4) Woodland Apartments LLC
appealed to the City Council to overrule a specific condition placed on the appellant by the Kalispell
City Site Review Committee. That condition was that a building permit would not be issued until the
appellant removed the reference to inverse condemnation made by the appellant in a calculation
document it submitted. The appellant was thereby asserting that it is an act of inverse condemnation by
the City to require a portion of the appellant's property be dedicated to the City for the purposes of
providing the public infrastructure of an urban street cross section as required by the City's Design and
Construction Standards.
On December 7, 2020, the City Council held a duly noticed hearing in which it reviewed the record
and heard from the appellant as well as the response from the City staff. After discussion of the
matters presented and orally setting out their findings and rationale, the City Council determined to
deny the appeal. Resolution No. 6008 is provided to the City Council to follow the requirements of
KMC §27.20.120(4) by setting out the Council's specific findings of fact, rationale, and determination
in the form of a written resolution.
RECOMMENDATION: The City Council should pass Resolution No. 6008 after it has carefully
reviewed it and determined that it correctly represents its determination. Any changes to the resolution
should be made by a motion to amend, considered, and voted upon by the City Council.
ATTACHMENT: Resolution No. 6008
RESOLUTION NO.6008
A RESOLUTION OF DECISION ON APPEAL BY WOODLAND APARTMENTS LLC
FROM A SITE REVIEW COMMITTEE DETERMINATION PURSUANT TO KMC
§27.20.120(4)
WHEREAS, in June 2019, Woodland Apartments LLC submitted an application to the City for
a conditional use permit [CUP] to construct a nine (9) unit apartment complex at
23 Woodland Park Drive/517 Shady Glen situated in a B-1 (Neighborhood
Business) zone which requires a conditional use permit for such multifamily
residential use (KMC §27.12.030); and
WHEREAS, the City Planning staff reviewed the application and provided a staff report KCU-
19-03 to the City Planning and Zoning Board which considered the application and
planning report prior to the duly noticed hearing on the matter held on July 9, 2019;
and
WHEREAS, during the public comment portion of the hearing, six members of the public spoke
in opposition to the application request, expressing their apprehensions over
increased traffic, pedestrian safety, garbage enclosure location and the general
intensity of the multi -family use in close proximity to the single-family residential
uses; and
WHEREAS, when the public hearing was concluded the City Planning and Zoning Board
adopted the staff report KCU-19-03 as its findings of fact and transmitted its
recommendation to the Kalispell City Council that it also adopt the staff report as
its findings of fact and to approve and issue a CUP to Woodland Apartments LLC
as requested with all 12 conditions as recommended by the staff report as well as
one additional condition involving the shielding of the trash receptacles; and
WHEREAS, the matter was duly noticed for public hearing and City Council action on August
5, 2019 at which time the Council heard public comment, considered the
transmitted recommendation of the City Planning and Zoning Board as well as the
staff report KCU-19-03 and after a motion to adopt the staff report as its findings
of fact and approve the recommendation of the Board, the City Council considered
and approved the CUP with the 13 conditions recommended by its City Planning
and Zoning Board; and
WHEREAS, the applicant, Woodland Apartments LLC, through its representative Paul Bardos,
was present at the City Planning and Zoning Board hearing and action as well as at
the City Council hearing and action and voiced no protests or concerns about any
of the conditions imposed in the CUP; and
WHEREAS, in March 2020 Woodland Apartments LLC submitted partial plans for its project
and staff began to review the project pursuant to condition 3 of the CUP which
states, "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
WHEREAS, among the considerations that the Site Review Committee attended to was to ensure
compliance with the Kalispell Transportation Plan, a planning document previously
adopted by the City Council designating Woodland Park Drive as a Minor Arterial
and Shady Glen as a local street as well as condition 8 of the CUP which states,
"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"; and
WHEREAS, after considering the impacts upon the development and granting a number of
deviations that were within its authority, the Site Review Committee determined
that compliance with the Transportation Plan and the City Construction and Design
Standards would, in order to place the necessary improvements of sidewalks, curb
and gutter, street trees and boulevard adjacent the applicant's property within the
right-of-way, require 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 to be dedicated by Woodland Apartments LLC to the
City; and
WHEREAS, Woodland Apartments LLC, through its representative Paul Bardos, then objected
to the required dedication, declaring that he was previously unaware this would be
a requirement and he therefore made reference in the recreational amenity
calculation he submitted, pursuant to condition 9 of the CUP, to the required
dedication as a "city inverse condemnation Shady Glen widening"; and
WHEREAS, the Site Review Committee granted a conditional approval to issue a building
permit on October 22, 2020 with condition 4 stating that the applicant must,
"Update recreational amenity calculation to remove reference to condemnation
prior to issuing a building permit"; and
WHEREAS, on November 12, 2020 Woodland Apartments LLC filed an appeal to condition 4
of the determination of the Site Review Committee to the City Council pursuant to
KMC §27.20.120(4); and
WHEREAS, on December 7, 2020 the City Council held a duly noticed hearing on the appeal
and considered the written and oral presentations of the appellant, Woodland
Apartments LLC and of the appellee, the Site Review Committee of the City; and
WHEREAS, when the hearing was completed the City Council considered the matter on the
record and orally made its findings of fact, as set forth below, and determined to
uphold the actions of the Site Review Committee, directing the City Attorney's
Office to present the same as a resolution for consideration by the City Council at
its regularly scheduled meeting on December 21, 2020.
HAVING FULLY CONSIDERED the appeal of Woodland Apartments LLC from the
condition 4 of the Site Review Committee's conditional approval to issue a building permit, the
City Council makes the following Findings of Fact:
1) The appellant, Woodland Apartments LLC, asserts that the Findings of Fact, as expressed
by the staff report KCU-19-03 and adopted by the City Planning and Zoning Board and by
the City Council is inconsistent with the evidence presented. The appellant points to the
comment made by a planning staff member during the hearing that the roads serving the
property were adequate to carry the increased traffic predicted to accompany the Woodland
Apartments development. This statement, however, must be considered in context with all
other evidence presented and available in the matter. Public comment, including neighbors
of the property, expressed concern about how the increased traffic would negatively impact
these roadways which are currently constructed as a rural cross-section, lacking curb,
gutter, boulevard, or sidewalk. Taken in context, the staff member seems to have been
addressing this public comment as a reassurance to the concerned public that the roadway
would be improved to address their concerns for the safety of pedestrians as well as for the
vehicular travelers.
Further, the purposes of the design and construction standards for city streets, approved
and adopted by the City Council, go beyond the extent to which the city streets can
adequately carry vehicular traffic. The design of the city streets must also take into account
a safe separation of pedestrian and vehicular traffic with sidewalks and the additional
function of boulevards which serve as space for snow storage. The curb and gutter serve to
direct storm water properly, not only for the safety of vehicular travel but also to reduce
the potential damage to private and public property. The appellant presented no evidence
to refute this.
The City has taken the further steps to consider and adopt a studied Transportation Plan
that takes into account the traffic patterns within the city to determine the most appropriate
design and construction standards for its various roadways. The requirements of the
roadways that serve the property proposed to be developed by appellant have therefore
been considered by the City Council within the Transportation Plan. The appellant
presented no evidence to contest the designation of these roadways or the appropriateness
of the design and construction standard required therein.
Therefore, the staff report KCU-19-03 approved and adopted by the City Council as its
Findings of Fact is consistent with the evidence and the record before the City Council.
2) The appellant, Woodland Apartments LLC, further asserts that certain conditions of the
CUP should not apply to its development, or, to put it another way, that the conditions
imposed by the City Council are somehow inconsistent with its Findings of Fact.
The particular condition of the CUP apparently contested by the appellant is number 7
which states, "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." Although the appellant specifically only
appealed the requirement to remove his written reference to an inverse condemnation of
his property and that is all that is necessary for the Council to address in this appeal, he did
argue extensively that, as a matter of policy, the City Construction and Design Standards
should not apply to a small multi -family development such as the Woodland Apartments.
This argument belies the fact that the purposes of the standards that require "sidewalks,
curb and gutter, street trees and boulevard adjacent the applicant's property" remain the
same regardless of the size of the multi -family development and these purposes serve the
health, safety and welfare of the residents of the appellant's development as well as the
neighboring properties and the traveling public in general.
All developments are required to comply with the City of Kalispell Design and
Construction Standards (Section 4.1. LA), as adopted by the City Council, and extend
necessary improvements to the far property line of the development (Section 4.1.I.C).
Except for single-family and duplex building permits, any subdivision or other
development must make the designated upgrades to comply with the Transportation Plan
and the Design and Construction Standards. The appellant's property is zoned as B-1
(Neighborhood Business) in which single-family and duplex residences are a permitted
use. It is therefore the appellant's election whether or not to develop the property beyond
the permitted uses and to accept the conditions placed upon the conditional use or to
develop a permitted use.
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 KMC §27.33.080
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 KMC §27.33.090, the burden
of proof for satisfying review criteria rests "with the applicant and not the City Council.
The granting of the CUP 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 upon the record,
the Council can approve, conditionally approve, or deny a CUP request under KMC
§27.33.030(3), provided that it does not abuse its discretion. It is therefore necessary that
the City Council not abuse its discretion by arbitrarily waiving conditions it places on other
developments as a matter of its own regulation.
The Conditions imposed by the City Council in the CUP issued to Woodland Apartments
LLC are therefore consistent with the Findings of Fact that it adopted.
3) The appellant, Woodland Apartments LLC, asserts that the condition proposed by the Site
Review Committee that requires a dedication to the City of a certain portion of his property,
as stated above, is an unreasonable taking of his property without just compensation under
the analysis set forth in Dolan v. City of Tigard - 512 U.S. 374, 114 S. Ct. 2309 (1994).
The Dolan analysis requires the City to make some sort of individualized determination
that the required dedication is related both in nature and extent to the impact of the proposed
development. Although the court provides no precise mathematical calculation to use, it
does require some consideration by the City, even if it is a rough proportionality of impacts
upon the property owner.
The City Council notes that the Site Review Committee has appropriately applied the City
of Kalispell Design and Construction Standards as well as the Kalispell Transportation Plan
in this matter. The appellant disagrees with the result and considers this to be a matter of
inverse condemnation. He is therefore asking the City Council to consider the nature and
extent of the dedication requirement impacts upon his development and to determine
whether or not his property is bearing a larger proportion of the burden of meeting the
standards than it equitably should.
The applicant's objection seems to go to the dedication of his property to meet the
requirements of providing the area to meet the street cross-section width. This amounts to
a dedication of 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. The City's Design and Construction Standards in this matter do not require
the landowner to make any improvements to the roadways beyond the length of his
property. Nor is the landowner being required to provide the sidewalks, curb and gutter,
street trees and boulevard on the other side of the street from his property or anywhere else
beyond the extent of his property. As stated above, these urban street cross sections do
provide a significant increased level of safety, health and welfare to the abutting properties
in the matters of pedestrian and vehicular traffic safety, storm water direction and the
preservation of private property and public infrastructure serving the properties. The City
Council concludes that the nature of the impact to the appellant's property is proportional
to the benefits the improvements will provide to the appellant's property as compared to
the benefits the improvements will provide to the neighboring properties and to the
traveling public.
The Site Review Committee further considered a number of other matters within its
discretion under the City's Design and Construction Standards that would otherwise have
increased the extent of the impacts to the development. 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 City Council agrees with these
deviations made by City staff and concludes that they were appropriate. Through this
means the City has been able to assure that the extent of the impacts to the appellant's
property remain roughly proportional to benefits it is receiving.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION 1. That the appeal of Woodland Apartments LLC to overrule the Site Review
Committee's determination that the Appellant dedicate 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 to
the City is hereby denied.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS 20 DAY OF DECEMBER, 2020.
Mark Johnson
Mayor
ATTEST:
Aimee Brunckhorst, CMC
City Clerk