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11-14-96KALISPELL CITY -COUNTY PLANNING BOARD AND ZONING COMMISSION MINUTES OF MEETING NOVEMBER 14, 1996 CALL TO ORDER The regularly scheduled meeting of the Kalispell City -County Planning AND ROLL CALL Board and Zoning Commission was called to order at 7:02 p.m. by President Therese Hash. Board members present were Fred Hodgeboom, Pam Kennedy, Jean Johnson, Bob Sanders, Joe Brenneman, Walter Bahr, Mike Conner, Milt Carlson and Therese Hash. The Flathead Regional Development Office was represented by Narda Wilson, Planner II, and Steve Kountz, Senior Planner. The City of Kalispell was represented by Diana Harrison, Zoning Administrator. There were approximately 15 people in the audience. APPROVAL OF The minutes of the meeting of October 8, 1996, were approved as written MINUTES on a motion by Bahr, second by Johnson. .All members present voted aye. SAMARITAN President Hash announced that a letter was received from Sister June HOUSE / Kenny on behalf of the Samaritan House, requesting a continuance on the CONDITIONAL request for a conditional use permit to allow the construction of a O USE PERMIT / homeless shelter. The public hearing will be rescheduled to the December Request for meeting. Continuance SOMERS LAND The first public hearing was introduced on a request by Dennis Carver on COMPANY ZONE behalf of Somers Land Company for annexation into the City of Kalispell CHANGE / FROM and initial zoning from County R-4, Two -Family Residential, to City R-4, COUNTY R-4 TO Residential. The property proposed for annexation is west of Airport CITY R 4 Road in the southwest area of Kalispell and will be known as Ashley Park, Phase II. The subdivision which is proposed for annexation contains approximately 8.24 acres. The property can be described as a portion of Assessor's Tract 4+ located in the north half of the southeast quarter of Section 19, Township 28 North, Range 21 West, P.M.M., Flathead County. Staff Report Wilson presented an overview of report #KA-96-5. The applicant's request for an initial zone of R 4 upon annexation into the City of Kalispell is a condition of preliminary plat approval. The request meets all the necessary criteria, and staff recommended that a favorable recommendation be sent to City Council granting the rezone from County R-4 to City R-4 upon annexation. Public Hearing The public hearing was opened to those in favor of the requested zone change. No one spoke either in favor or in opposition to the requested zone change upon annexation into the City of Kalispell. Motion Bahr moved to adopt report #KA-96-3 as findings of fact, and recommend to City Council that the initial zoning from County R 4 to City R-4 be granted upon annexation. Johnson seconded. On a roll call vote, all members present voted aye. The motion carried unanimously. SOUTH The next public hearing was introduced on appropriate zoning WOODLAND/ designations for South Woodland / Greenacres area proposed for GREENACRES annexation. This area contains approximately 308 acres and is generally ZONE REQUEST located in southeast Kalispell. Zoning is a mix of R 2 and R-3, single - UPON family residential; B-2, general commercial; I-1, light industrial; and P-1, ANNEXATION public for County park. Staff Report Wilson gave a presentation of the South Woodland / Greenacres Annexation and Zoning report #KA-96-6. Part of the process for annexation is to consider the appropriate zone classification when the property goes from the County into the City. Based on evaluation of the statutory criteria established for review of a change in zone, the recommended zoning classifications were intended to comply with the Master Plan and newly adopted Neighborhood Plan. Staff recommended a favorable recommendation to the City Council to adopt the zoning as presented in Exhibit B of report #KA-96-6. A letter from Jim and Sandi Vashro, and Ben and Anne Taylor was entered into the record which expresses concern about annexation. Public Hearing The public hearing was opened to those in favor of the zoning designations as proposed for the South Woodland / Greenacres area. In Favor Dennis Dortch, President of Greenacres West Homeowners Association, which is proposed for R-2 and R-3 zoning, and those classifications meet the character and lifestyles we want out there. We do have a homeowners park in the area that is under consideration to be taken over as a City park. That probably should be zoned P-1. No one else spoke in favor of the proposed zoning. The public hearing was opened to those opposed. Opposition Sally Delby, 1740 Woodland Avenue, whose property was proposed to be zoned R-2, noted that there are several properties on that corner and south from her property that meet the requirements for an R-1 designation. The lots are quite large, with livestock, and for that reason she requested that City R-1 be considered as that allows agricultural / horticultural uses, and other listed uses in the R-1 zone. The City R-1 would be more applicable to what exists there. 2 Bob Meerkatz, 1604 South Woodland, stated that he is trying to protect himself and is perhaps at the wrong hearing, but he is opposed to being annexed into the City. He is concerned with City taxes on undeveloped sections of land. It has taken me 35 years to acquire the piece of property, and now I may be forced to sell it because I can't afford to pay the taxes on it. I would hate to be penalized with all the work I've done to afford to buy this piece of property and now it will be taxed over my means of paying for it, as I am retired. No one else spoke in opposition to the proposed zoning. The public hearing was closed and it was opened to Board discussion. Board Discussion The Board discussed the request for City R-1. The R-1 designation in both the County and the City allows livestock. It would be appropriate to zone that R-1 and the existing uses and lot size would be in conformance with the zone. It would help maintain the rural character of the neighborhood as identified in the neighborhood plan. The allowed and conditional uses are similar in both the City and County R-1 zones. The Board supported the request and determined the boundaries for the R-1 designation, to be the large lots from Ergasia Corner on Woodland Avenue, south on Willow Glen to Lot 8 of Greenacres Original. The large C� lots south of that in Greenacres Block One would not be appropriate for an R-1 zone, as there are two mobile home parks in that vicinity. The request to zone the homeowners park as P-1 was reasonable, and the Board agreed to that amendment to the recommendation to City Council. Motion Kennedy moved to adopt staff report #KA-96-6 as findings of fact and forward a favorable recommendation to City Council to adopt the zoning as proposed in Exhibit B upon annexation into the City of Kalispell with the amendments to change the zoning from R-2 to R-1 from Ergasia Corner to Section 9 and to zone the homeowners park P-1. Carlson seconded. On a roll call vote Johnson, Brenneman, Bahr, Carlson, Conner, Kennedy, Sanders, Hodgeboorn and Hash voted aye. The motion carried 9-0 in favor of the recommended zoning classifications for the South Woodland / Greenacres area upon annexation into the City of Kalispell. The City Council meeting on this issue is scheduled for December 2na RINKENBACH The next item on the agenda was a request by W. H. Rinkenbach for text TEXT amendments to the Kalispell Zoning Ordinance. The primary amendment AMENDMENT / (Section 27.07.020) would be to add "Accessory Single -Family Dwelling" TWO DETACHED as a permitted use in R-4 Residential zoning districts, which essentially SINGLE FAMILY would allow two detached single-family houses on one lot subject to 1 HOUSES ON ONE specific performance standards. LOT IN R-4 ZONE 3 Staff Report Kountz gave a detailed presentation of report #KZTA-96-3. Based on evaluation of the necessary criteria, staff recommended approval of the amendments to the Kalispell Zoning Ordinance as set forth in report #KZTA-96-3. Public Hearing The public hearing was opened to those in favor of the text amendment. In Favor Brian Wood, 2220 Dillon Road, Columbia Falls, representing the applicant W. H. Rinkenbach, submitted a petition signed by 38 people to be entered into the record, in support of the text amendment as proposed in the R-4 district. The applicant has no problem with expanding into the other zones. Discussions have been ongoing since May with the City, FRDO and myself. We appreciate the favorable staff recommendation, however, there are three items in the recommendation that causes some concern. On page 7, under the Recommendation, subparagraph 2iii, the last line states "The location of an existing structures shall not be considered a special condition or circumstance that justifies the granting of a variance from these setback requirements." On page 8, 2v, "If a lot with ay single family dwelling is subdivided, the existence of the second dwellin shall not be considered a special condition or circumstance that justifies the granting of a variance from the prope development standards of Section 27.07.040." It is our position that State law very clearly defines the criteria that the Board of Adjustment uses in considering variance requests. The City Zoning Ordinance also clearly defines the powers and duties of the Board of Adjustment. We feel that each application for a variance should be based on its own merits and this type of a blanket statement is not necessarily appropriate when considering this text amendment. On page 7, 2 iv, "An accessory single family dwelling may not be rented or leased as a separate residence unless the prope owner maintains permanent residence in the rpm dwelling." Aside from being a difficult enforcement task, as was acknowledged, it is also somewhat questionable as to the legality of that type of a requirement. I spoke with the City Attorney about it and he is not comfortable with the condition. What I would like to ask staff to do is get a formal opinion from Glen Neier. It would also be a radical change from anything the City has done in the past. At this time, someone can build a duplex in any of the R-4 districts and rent to whomever they choose. We would respectfully request that the Board delete the last line of subparagraph (iii) on page 7, all of (iv) on page 7, and all of subparagraph (v) on page 8, and forward a favorable recommendation to City Council. No one else spoke either in favor or in opposition to the proposed text amendment, the public hearing was closed and the meeting was opened to Board discussion. 11 1 Board Discussion The Board discussed how to determine the primary dwelling and the enforceability of the ordinance was questioned. Staff replied that, as in many instances, enforcement would be through complaints if there is a problem. Kennedy had grave concerns about the ramifications of this text amendment, which would effect the majority of Kalispell. The city has been aggressively addressing affordable housing in the community, however, she did not believe that moving in substandard housing is looking out for affordable housing in our community. I do not agree that this is not the same as a duplex. I have a real problem with all the substandard homes coming into the City from out in the County. I cannot support this proposal. With this being a permitted use, with the owner not on the property, we are setting it up where the west side of Kalispell will be further damaged than it is now. Carlson was opposed to extending this to all the residential districts. Secondly, I think it should be a conditional use so that it can be reviewed. He made an observation, that sometimes when a person retires, they want a smaller place for themselves, and rent out the larger one to help them stay in the area and maintain some revenue. Hash was also opposed to the text amendment. She questioned why it was requested for just R-4, as that was obviously what zone the property owner has. She had a problem with substandard size lots, as it often becomes an issue when it goes to subsequent owners. There are two residences and the lot cannot be split. I would suggest that it be a conditional use. I think it is important that in the regulations, it indicates that such an existence of an ancillary structure is not a special condition. I agree that the Board of Adjustment has their own criteria, but I would be more comfortable with that language maintained. Areawide, I think it would help with the issue of affordable housing, but overall, I don't think it would be good for the city as a whole, and would not be in favor. Hodgeboom could support this as a conditional use in all of the proposed zones. It wouldn't be a widespread occurrence. There are good reasons for having an ancillary dwelling. Kennedy countered that there are good reasons, but the majority will become rentals, and we have to be concerned about overcrowding on city lots. The names on the petition are from all around the high school, and you can't find a place to park in that area. Brian Wood addressed the questions of the Board regarding their request. The reason it was requested as a permitted use is that they felt the performance standards addressed the concerns. They have no problem �`— with -it being a conditional use. They do not have a problem with applying for a variance. We did not want the existence of a building to determine whether it was granted or not. That shouldn't be the consideration for granting a variance: State law specifically spells out the criteria that the Board of Adjustment uses. We did not want to add another criteria to their consideration,. We don't know whether we can. The Board was concerned about what a broad area of Kalispell that this text amendment applies to. Kennedy asserted that what has happened on the west side of Kalispell is that there has been development of larger lots where older housing stock is being moved in from out in the county. You will see many older homes on new foundations. What you will end up with is two substandard homes on a lot, rather than taking down a substandard home and building a duplex. Brian Wood said that he does not know what is being referred to as substandard. In the City of Kalispell there are two house movers who are licensed. The building code requires certain standards be met on any house moved into the city. Craig Kerzman is diligent in ensuring that that occurs. O Kountz responded to some of the concerns regarding substandard housing being moved in. I echo Brian in that it does need to comply with public safety standards for the Uniform Building Code and Fire Code. If aesthetic standards are the concern, I would urge you to consider design standards in the city, or set standards that they fit into neighborhoods. That is a citywide issue that does not relate to accessory structures. Regarding Brian's concern on the variance, the proposed performance standards would not add an additional criteria that would be looked at for a variance. One of the criteria that is looked at is that if there are special circumstances or a hardship that would justify the variance. These performance standards state that the existence of this accessory unit is not a circumstance that could be used to justify a variance. It is very reasonable to require a conditional use permit, so that these can be addressed on a case by case basis. Whitefish adopted something a bit more controversial in that they allowed both accessory houses and a guest house in the single family district. They have more of an affordable housing problem there. I have looked at 6-7 conditional use permits for accessory apartments or guest houses, and none of them were controversial in the neighborhood. No one opposed them and it took a lot of time. Therefore, I did not propose it as a conditional use, but it would make it more reasonable as a test case to look at each on a case by case basis. } Motion Hodgeboom moved to adopt report #KZTA-96-3 as findings of fact and recommend approval of the text amendment as outlined in the report, on C� except that it be changed from a penny to a conditional use in #1 and #2. Brenneman seconded. Amended Motion Carlson moved to amend the motion to limit the text amendment to R-4 only. Bahr seconded the amendment to the motion. On a roll call vote for the amendment to the motion, Bahr, Johnson, Conner, Sanders, Kennedy, Carlson, and Brenneman voted in favor of limiting it to R-4. Hodgeboom and Hash voted nay. The motion carried 7-2. Roll Call Vote on A roll call vote was taken on Hodgeboom's motion which includes all the Motion as Amended proposals in the staff report, with the amendment to apply the text amendment to the R-4 zone only, and that it be a conditional use rather than permitted. Carlson, Hodgeboom, Brenneman, Sanders, Bahr, Conner, and Johnson voted aye. Kennedy and Hash voted nay. The motion carried 7-2. GARDNER The next public hearing was introduced on a request by Gardner Auction AUCTION SERVICE Service for an amendment to the Kalispell Zoning Ordinance. This / TEXT proposal would amend Chapter 27.25; Non -Conforming Lots, Uses and AMENDMENT Structures; of the Kalispell Zoning Ordinance by adding a new Section, "Changes Permitted to Non -Conforming Uses which would allow a change to a different non -conforming use which would have an equal or less impact. Staff Report Wilson gave a detailed presentation of report #KZTA-96-4. The text amendment proposal was reviewed in accordance with the necessary statutory criteria, and based on the findings, staff recommended the text amendment as proposed be denied. Questions Johnson noted that the building became non -conforming when zoning was imposed, and thus created a financial burden. In my opinion; this should be a two-step process inasmuch as the City has imposed this zoning and created a financial burden on individuals. There should be some mitigation available. If the building were torn down and the property sold, obviously there will be a differential. If the City were not willing to do that, then the property owner should be able to apply for another conditional use. The Board discussed the options for the specific non -conforming use under discussion, as an example. Public Hearing The public hearing was opened to those in favor of the proposed text amendment. In Favor Todd Gardner, Gardner Auction Service, 1896 Airport Road, stated that they purchased their property in 1978, and at that time, it was unzoned. In 1994 we purchased property on Highway 93 South. When we looked 7 into leasing our building to sell it, we discovered that we had been zoned RA-1, and that our uses, continued uses, or different uses of the building were limited. The City approached us and were interested in buying it. After the better part of a year, it didn't work out. We approached the FRDO for a zone change to I-1, Light Industrial, which fit everything that we have there. At that time, they were rezoning the Airport across the street, and we were told that we could be included in the zoning of the Airport Plan. We waited for that, and it didn't happen. I have a letter from the City responding to a letter from Brian Wood, which he handed out to Board members, stating that the City felt that they had enough land zoned light industrial since they rezoned their own property. In the letter, they state that they feel they could support a text amendment. The text amendment is what is before you. We aren't asking for any special favors. It is a way to protect property value. This amendment would not be a free rein. It states an "equal or lesser impact" at the discretion of the Zoning Administrator. This language is verbatim of what is in the zoning ordinances for Flathead County, Columbia Falls and Whitefish. The Kalispell City -County Master Plan does not objectively address adaptive reuse of existing buildings. As far as lessening congestion, and other impacts. The auction is quite an impact to a neighborhood — especially on Monday nights. On a scale of 1-10, the auction impact is probably about 9 to 10. If we move another business into this building, it will be equal or lesser impact. For instance, we had a signed offer on our building of $400,000 subject to the zone change. The existing zoning scared them off, and they are now looking in Evergreen. This business was manufacturing food substances — very low impact to the neighborhood. One of the criteria which is reviewed asks Will the proposed zone conserve the value of buildings??. We are trying to preserve the value of our buildings. We would appreciate your consideration of this request. Devar Gardner, testified that we need to do something with this property. We have a lot of money invested in it. Rather than this text amendment, we would have liked to have seen the zone change. That would have been ideal. The community around us is not residential. There is a Christmas tree operation next to us, the veterinary clinic is down the road, and residential just doesn't fit where we are. I don't know how it got zoned RA-1. We are having a public hearing just to do something with a piece of property. I bought it as a working business, and now I'm between a rock and a hard spot. How can they come in and do that to me without me even realizing it? I was busy trying to make payments. We had a lease for $4000 per month on the building, with a $400,000 purchase price in five years, with only $1000 a month of the lease going towards the purchase price. The tenant was going to spend $100,000 remodeling it and bringing it up to his standards with offices, etc., with a K. `.� use that probably no one would even know was there. It was all signed, but we could not guarantee that we could get the zone changed. We lost it, and that hurts. I could have done a lot with that. It would have really eased my mind as to what I am going to do for the rest of my life. Brian Wood, testified that the language proposed works in the County and Columbia Falls jurisdictions. I think it would be a good idea for Kalispell, as well. There were no other proponents of the text amendment. The public hearing was opened to those opposed. No one spoke in opposition to the proposed text amendment. The public hearing was closed and opened to Board discussion. Board Discussion Kennedy asked why a zone change on this specific piece of property, to I-1, which is the type of zoning that is directly across the street, necessitate a master plan amendment as referred to in the letter from Craig Kerzman to Brian Wood? Wilson replied that it was a collective decision by the committee, and pointed out on the map that this particular piece of property is master planned as residential apartment. C� Kennedy felt that a zone change would be more appropriate and the direction that the Gardners wish to go. I wish that somebody other than Site Review Committee had been informed with regards to this. I have serious misgivings about allowing non -conforming uses to prolong for an indefinite period of time, and would favor seeing a change in non- conforming uses be subject to a conditional use permit. Hash agreed that she also had a problem with a text amendment that affects the entire planning jurisdiction with regards to a non -conforming use, which one is trying to phase out. Hodgeboom questioned how a spot of RA-1 zone got there in the first place. It is right across the street from the airport, the sewer treatment plant, a ball field, and it is zoned RA-1. It appears that it was singled out for a more restrictive zone that doesn't fit with any of the uses in the area. It looks like a spot zone. Bahr agreed that it appears to be a spot zone. Adjacent property zones better fit the uses of the land. That area will probably develop more towards business along Airport Road, rather than residential apartments. The Board generally supported a zone change to I-1 in the area, and ( further discussed why the City would not support a zone change or a �J master plan amendment, as indicated in the letter from Craig Kerzman. 9 The letter indicates the City would support a text amendment and now it is being denied. Motion Bahr moved to adopt staff report #KZTA-96-4 as findings of fact and send to City Council an unfavorable recommendation for the text change for the three (3) reasons set forth in the report. Kennedy seconded. Discussion on Motion Discussion ensued as to what this action would entail for the Gardners. Since a text amendment, affecting the entire planning jurisdiction, and a zone change for a particular piece of property are two different processes, the Gardners would have to submit another application with a fee for a zone change. Conner expressed his frustration with what has happened, that the Gardners have been led down the wrong direction. From a moral standpoint, I am having a real hard time dealing with this. Especially, spending more money on this, when they have been led in different directions thinking that something is going to happen, and it hasn't happened, and not understanding why they got RA-1 in the first place. Wilson said that staffs position would be to not support a zone change to I-1, Light Industrial, from the standpoint that staff — both city staff and FRDO — having looked at this situation. a Kennedy suggested that if this Board were to make a recommendation to the City Council, that (1) we are denying the text amendment and (2) we would like the City of Kalispell to look at a zone change in that area, then the City of Kalispell would become the petitioner. Therefore, that would alleviate the fee to the Gardners, would send a message to City staff that this Board feels a zone change would be appropriate. City Council can address an area that was perhaps inappropriately zoned, at a work session. Hash noted that if the City does not want to be a petitioner and we vote on this report, the Gardners application would be denied. I would suggest that we table this particular issue as a stop gap. I am amazed that staff would recommend a blanket text amendment on non conforming uses, instead of dealing with a zone change for a particular area. I am hearing that the Board would support the continuance of a non -conforming use as a conditional use. Johnson asked how the Site Review Committee got into making recommendations on zoning issues. It is a closed Board and there is no discussion. This letter came from the Site Review Committee where the determination was made to go this route. I am suggesting that we, in a public forum, and FRDO in their expertise, are better qualified to make Jthat determination than the Site Review Committee. 10 Brenneman also sympathized with the Gardners, but the issue is whether or not we should make this text amendment change. I believe the Gardners have played the game, but the bases have been changed on them. I agree, that morally, we should be helping them out of their dilemma. Personally, I would be extremely frustrated, as well. The issue with this motion, however, is to change the zoning text. Apparently, this works well in other jurisdictions. Roll Call Vote A roll call vote was taken on the motion to adopt the findings of fact in report #KZTA-96-4 and recommend the text amendment be denied. Carlson, Brenneman, Kennedy, Bahr, Sanders, Johnson, Conner, and Hodgeboom vote aye. Hash voted nay. The motion carried 8-1. Discussion followed on the Board action taken to deny the zoning text amendment. Motion Kennedy made the motion that the Planning Board forward a recommendation to City Council to review the zoning on Airport Road at the site of the Gardner Auction, at 1896 Airport Road, currently zoned RA-1. That City Council petition for a zone change to I-1, Light Industrial, as it is in the immediate vicinity, directly across the street, and we feel it is appropriate to do a Master Plan amendment and zone change request with the City being the petitioners. Conner seconded. On a roll call vote Hodgeboom, Carlson, Johnson, Bahr, Conner, Brenneman, Sanders, Kennedy and Hash voted aye. The motion carried unanimously in favor. OLD BUSINESS Kountz gave an update on the information gathering for the Kalispell Master Plan update. NEW BUSINESS Board terms expire on December 31, 1996 for five of the Board members. Letters of interest need to be sent, so the appointments can be made in December. Johnson brought up under new business that the Commissioners will not approve a final plat unless utilities are extended to each lot under 5 acres. Flathead Electric Co-op has put out a directive that they will not extend utilities to each lot until lots are sold and people request the utility. At this time, we cannot get final plat approval. Johnson wanted to know why Site Review Committee has expanded into making suggestions of procedures. I, personally, have a problem with what happened with the Gardners. They got a letter that should not have happened. They should have gotten a recommendation from FRDO and gone through the process. Within the Committee, absences are normal, and they tend to make decisions on matters they aren't really familiar with. 11 Wilson felt that was part of their role, as it affects everyone on staff, how they do their job, different elements that go into land use and land development in the City. ADJOURNMENT There being no further business matters to discuss, the meeting was adjourned at 9:50 p.m. Therese Fox Hash, President abeth Ontko, Recording Secretary i .APPROVED: �M U, After the meeting was adjourned, David Greer, Montana Planning Consultants, gave an update on the progress in developing the West Valley Neighborhood Plan, which will come to the Planning Board for public hearing in December. Part of the area is in the Kalispell planning jurisdiction. 12