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12-12-95KALISPELL CITY -COUNTY PLANNING BOARD AND ZONING COMMISSION MINUTES OF MEETING DECEMBER 12, 1995 CALL TO ORDER The regularly scheduled meeting of the Kalispell City -County AND ROLL CALL Planning Board and Zoning Commission was called to order at 7:03 p.m by Chair Therese Hash. Board members present were Fred Hodgeboom, Robert Sanders, Walt Bahr, Milt Carlson, Bob Lopp, Michael Conner and Tere Hash. Michael Fraser arrived at 8:00 p.m. Pam Kennedy had an excused absence. The Flathead Regional Development Office was represented by Tom Jentz, Acting Planning Director, and Narda Wilson, Planner II. The City of Kalispell was represented by Brian Wood, Zoning Administrator. There were seven (7) people in the audience. APPROVAL OF The minutes of the November 14, 1995 meeting were approved as MINUTES written on a motion by Bahr, second by Carlson. All members present voted aye. NELSON Hash introduced a request by Montana Land Reliance on behalf of CONSERVATION Helen and Van Kirke Nelson for a conservation easement on 330 EASEMENT acres of land generally located south of the Old Steel Bridge on the west side of Old Steel Bridge Road approximately two miles east of Kalispell. Staff Report Jentz gave a brief overview of Conservation Easement Report #FCE-95-3. Jentz briefly described the Flathead River Partnership which was formed about 3 years ago to serve as a citizens organization to watch over the Flathead River from Hungry Horse to the Lake. The purpose is to address issues pertaining to the river, and to give direction to the county, state and federal organizations that manage that river. All major landowners along the river corridor were contacted and invited to attend meetings. Conservation easements were explained as a private method of protecting resources. Dr. Nelson is the first to donate a conservation easement which comprises approximately 3/4 mile of river frontage on the Flathead River. Discussion The Board expressed many accolades to Helen and Van Kirke Nelson for their contribution to the community. Carlson referred to a recent issue of the High Country News which covers land trusts that offer farmers and ranchers a variety of tools to achieve overlapping goals to keep land in agriculture, preserving open space, wildlife habitat and providing 1 income and estate tax relief. One instrument can do all these things. Motion Carlson moved to authorize the Planning Director -to act on behalf of the Planning Board by stating to the Montana Land Reliance that the Nelson conservation easement will further the goals of long-range planning and the Planning Board is in full support of the conveyance. Lopp seconded. On a roll call vote all members present voted resoundingly in favor. MILLSPAUGH Next, Hash introduced a request by Nels and Virginia L. Millspaugh ZONE CHANGE / for a zone change from SAG-10, a Suburban Agricultural zoning SAG-10 TO district with a ten (10) acre minimum lot size, to SAG-5, a SAG-5 a Suburban Agricultural zoning district with a five (5) acre minimum lot size. Approximately 21.086 acres is being proposed for rezoning which is located west of Airport road between Rocky Cliff Drive and Cemetery Road south of Kalispell. The property can be described as a portion of the Amended Plat of Lot 13, Wapiti Acres, which is located in the SW4 of the NE4 of Section 31, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. n Staff Report Wilson gave a presentation on the Millspaugh's request for a zone change. She noted that when report #FZC-95-14 was written, staff had recommended denial of the zone change, until some of the site specific issues could be adequately addressed. Since that time, I had a pre -application conference with the engineer for the project, who discussed a development proposal that the planning office could support, and we could provide the Planning Board with a favorable recommendation. A copy of a letter to Dan Brien, with Hersman Land Survey, the surveyor for the project, from Jean Johnson, the engineer for the project, showing the proposal for development of the site, was submitted to the Board. It is proposed to be a two -lot subdivision. One lot would be approximately 7.06 acres, and the remaining 15.83 acres would be retained by the Millspaughs with their residence. With this change of events, I will go over the staff report from the beginning and present the amended findings of fact. Please note that the Wapiti Acres Subdivision is nonconforming in the SAG-5 zoning district, with regards to the lot size. Wilson gave a detailed overview of the existing land uses in the area and the nature of the .request, as set forth in report #FZC- 95-14. There has been discussion, which is not included in the report, regarding obtaining access through the county parkland. Per discussion with Bob Norwood, he stated that it was the position of the Parks and Recreation Board, that not now or at any time in the near future would access be granted through this ( parkland, nor would it be put up for sale, as this is the only 2 piece of public land between there and Foys Lake. Access through the park is not an option. What the property owner is proposing for access is a 40 foot ROW along the south boundary, where the Millspaugh residence is located, with a cul-de-sac. The access would meet the subdivision standards for a 3 lots or less subdivision. It appears the 8% road grade could be met. Staff proposed the following amended findings based on the proposed 2-lot subdivision: EVALUATION BASED ON STATUTORY CRITERIA The statutory basis for reviewing a change in zoning is set forth by 76- 2-205, M.C.A. Findings of fact for the zone change request are discussed relative to the itemized criteria described by 76-2-203, M.C.A. 1. Does the requested zone comply with the Master Plan? The Kalispell City -County Master Plan designates this area as "Agriculture / Silviculture." In general terms, the proposed SAG- 5 zoning is in compliance with -the master plan for this area. *2. Is the requested zone designed to lessen congestion in the streets? Access to this site is off of Airport Road -to Juanita Way and Dale Drive. Airport Road is a paved County road; Juanita Way and Dale Drive are County gravel roads. They are adequate with regard to right-of-way and road width. Under this proposal, one additional lot would be created, which would generate an additional 10 vehicle trips per day, which would be a minimum impact on congestion in the area. 3. Will the requested zone secure safety from fire, panic, and other dancers? The Department of State Lands has rated this area as a "moderate" fire risk area. Although there is no secondary access from this site, the roadway lengths would be in substantial compliance with what is allowed under the Flathead County Subdivision Regulations. The property is within the South Kalispell Fire District and access is generally good. The County Sheriff's Office would provide police protection for this area, although routine patrolling would not occur. No significant impacts could be anticipated with regard to safety hazards, fire or other emergency situations. 3 M. Will the requested change promote the health and Fceneral welfare? Assuming that the parcel is developed as proposed, the minimum lot width requirements and the minimum road requirements of the Zoning and Subdivision Regulations can be met. These standards are developed to ensure that the public health and safety is promoted. If this site is developed as proposed, this zone change would meet those goals. 5. Will the requested zone provide for adequate light and air? Adequate light and air would be provided both by the low density allowed in the district and the setback requirements for structures. *6. Will the requested zone prevent the overcrowding of land or undue concentration of people? Assuming the property is developed as proposed, with one additional lot, there would not be undue crowding of land because of the minimum lot width requirements. *7. Will the requested zone facilitate the adequate provision of ( -�) transportation, water, sewerage, schools, parks, and other public requirements? It appears that there are adequate public facilities to serve this property with regard to water, sewer, schools, fire and police protection. With one, or even two additional lots, there would be adequate roadway width to serve the development on this site. *8. Does the requested zone grive consideration to the particular suitability of the property for particular uses? This property proposed for rezoning would be well suited for smaller lot development because it is close to urban services and is accessed by way of a good transportation system. With one or two additional lots on this parcel, these lots and sizes would be suitable for this property, and the large tract residential character of this area. The moderate slopes along the eastern boundary provide good building sites, while the forested areas would typically remain undisturbed. Because of the high visibility of this hillside from Highway 93, there would be significant visual impact if it were to be logged. 4 *9. Does the requested zone give reasonable consideration to -the character of the district? The general character of this area is large tract residential development. The proposed zone change is consistent with other zoning and development in the area. The development plan addresses design standards and access. One additional lot would be consistent with the character of the area. *10. Will the proposed zone conserve the value of buildings? The proposed zoning and development would conserve the value of buildings in the area, because the uses and development standards for SAG-5 and SAG-10 are similar and consistent with current development in the area. *11. Will the requested zone encourage the most appropriate use of the land throughout the jurisdiction? The most appropriate land use in this area appears to be the low - density residential development which could be achieved under the SAG-10 or SAG-5 zoning. The development plan which has been proposed has addressed the zoning and access issues. There are C� potential visual impacts from development of the hillside, however this site is well suited for low density residential development because it is close to urban services. This provides a good transition between outlying rural areas of the planning jurisdiction and -the more dense urban uses. In summarizing my report, since the initial writing of this report, the engineer has contacted the surveyor to address the zoning and subdivision issues. Access can be provided along the eastern portion of the lot by way of Dale Drive. It appears that they have adequately addressed the zoning issues with regard to the minimum lot width and the road standards. I should note, that if the zoning should pass, and should this property be sold at some point in the future, there is a potential for four lots on the 15 acre parcel, under -the cluster provision. However, FRDO would recommend that the Kalispell City -County Planning Board and Zoning Commission adopt amended FRDO staff report #FZC-95-14 as findings of fact, and based on the findings, recommend to the Board of County Commissioners that the requested zone change from SAG-10 to SAG-5 be approved. Questions Hash asked if this proposal was received in enough time to be able to rewrite the findings? Wilson replied that she did. These issues were discussed at the pre -application meeting the previous week, so she had time to do a thorough analysis. 5 Lopp asked if the notice to the adjacent property owners reflected the latest changes to the staff recommendation? Wilson said that when notice of a public hearing is sent out, the staff report has not been prepared with a recommendation. Therefore, when notice is sent out, they only know what is being requested. They do not know what staff's recommendation will be. No one called to inquire about this request. Public Hearing The public hearing was opened to those in favor of the requested zone change. In Favor Jean Johnson, with Stokes & Associates, representing the Millspaughs with this petition. For the most part, we agree with Narda's findings of fact. I would like to go over a couple of items. The historical background on this. This occurred by virtue of some bad advise to a property owner by two professionals, both a in the legal profession and in my business. We would not be involved with this project if they did not elect to make a boundary line adjustment of this parcel. It just devastated anything that can be done, now. So, we are trying to address how best to adjust to that. The Millspaughs have been living in Wapiti Acres for many years. Their house is there, they have a nice little acre. Along comes somebody who proposed 300 houses behind you, so all the neighbors get together and buy chunks of land to prevent this. That is how this came about. The Millspaughs have caused themselves some financial burdens, because they have 20 acres of land that they really don't want. The best scenario for them is to go back to their little lot in Wapiti Acres and no one behind them. We can't do that. They do not want 6 lots, with all the -traffic going back and forth, but they have a financial obligation to meet this commitment. They selectively logged this. They are making horrendous house payments on this parcel. That doesn't justify a zone change, but that's the background. We came up with a development procedure that we think will accomplish what they want to do and still preserve the integrity of the area. This gets confusing because on this parcel of land there are two different zones. The original tract was 1.80 acres plus the 20+ acres that they purchased. Under the current zoning, a total of two parcels could be created. They want to create one parcel to market and keep the rest with their home on it. Under the current zoning under the cluster provision, there could be three parcels created, but that still encounters restrictions with access, lot width, etc. Under the proposal, four lots could be created, and six lots under the cluster provision, but that is impossible because of the terrain, and it defeats their goals. There are restrictions with the BPA easement, the slope, sanitation, and so the best scenario is what is presented. I would like to address the letter you received from the Roberts. (1) regarding overlogging the area. I talked to Ron Buntenmeier of Stoltze Land and Lumber, and they do a lot of private logging. Their first consideration is -to take out dead and diseased trees. a If they cannot maintain a minimum of 20 separation between trees, then they will take trees out to get that separation. This prevents crowning in the event of forest fire. (2) addressing knapweed. Animals are more likely to be responsible for the spreading of knapweed than logging. Seeds get caught in their coats and get distributed. (3) aquifer deterioration. I have had my drilling license for 8-9 years, I've been involved in the building industry for 30 years, and I was involved with a study of salt water intrusion in the Seattle area of the freshwater aquifers. You cannot deplete an aquifer. There is not a little machine down there that creates a 100 gallons per day and if you get too many wells then the machine can't handle it. That isn't how it works. We have reviewed 13 wells in the area. They are all in fractured metamorphic rock, which means it is being charged somewhere on the mountain going through these fractures. This is the source of the water. It is not a defined aquifer that we are drilling into. (3) You cannot build under the BPA transmission lines. (4) The reference to the small streets and crowding. Any subdivision will have to meet county standards. (5) cramming 4 houses in there, we will put in 2 at the most, one is already existing. (6) Wildlife -- with the controlled logging situation, we have enhanced the wildlife habitat. No one else spoke in favor of the requested zone change. The public hearing was opened to opponents of the zone change request. Opposition Gary Crowe, attorney representing Loy and Francie Roberts, who are opposed to the requested zone change. They own over 140 acres and live on Orchard Ridge Road. They own 50% of the boundary around this area. They have not received notice of the amended proposal. First, the adjacent land owners, including my clients, were not given proper and adequate notice, because of this llth hour amendment. The notice that went out was based on the proposal at that time, which was denied. With an 11th hour amendment, she is now speaking in favor of this proposal. The notice was not properly and legally tendered to the affected landowners as required by law. In addition, Orchard Ridge Subdivision is sitting on top of the ridge. I am also here as a landowner and the president of the Orchard Ridge Homeowner's Association. I have 25 acres above the affected area. There has never been any notice given to any Orchard Ridge residents. Secondly, this area was zoned SAG-10 in 1993 and all of these people are detrimentally relying on this zone, such as my clients, the Roberts, such as the Orchard Ridge residents. Buying their properties, making their developments, investing their money, and then two years later, have a developer tell you they are having financial difficulties. So, because of their financial difficulties, they ought to be allowed to turn this into SAG-5. What about all C.JI these other people who have financial measures on the line. I also know about the history of this affected area. It was RRR and they were going to put in 300 lots. There was a buy -sell on the property and I alerted the owner in Enterprise, Oregon, as to 7 what was proposed. The sale fell through, and there were 5-6 landowners in the area who bought the property. At that time, they had the opportunity to buy as much acreage as they wanted. The Millspaughs bought 21 something acres. They could have bought 25 or 30 acres, in 1994. They bought the property from Mr. Holleran, because they wanted to keep it from being developed. When they bought the property, it was zoned SAG-10, and they knew that when they bought it. Now, it isn't our fault as citizens, or your fault as the Planning Commission, that they got bad legal advise, and bad professional advise. Neither is their financial difficulty. It is not fair to everyone who drives along Highway 93 and look up at that hill and look at the devastation that is going to go on to allow this to go through. There are two houses up there now that look atrocious. In addition, we are talking buffer zone. That is why this SAG-10 was created. If we allow it to be continually chipped away at, then where is the buffer zone going to be? Let's stay with -the plan. There are no hydrologic studies done in this area. We have a gentleman from Seattle whose area of expertise is desalination of water. I don't see any hydrologic studies of this area, period. There are no wildlife studies. There is a conservation easement nearby. Knapweed is very severe problem in our area. The seeds are not spread by livestock, they are carried by wind and vehicles. My client, Mr. Roberts owns six title companies, and had done extensive research on this property before purchasing it. He relied, detrimentally, on the SAG-10 zoning around his property. I would contend that their financial considerations in their home and property would outweigh -the Millspaughs ability to make their house payment. This proposal would push development higher up the ridge. There are already two houses up there, which are atrocious. These are 25% slopes here. There is fire danger and the aquifer is being depleted. The point here, is that when this area was zoned in 1993, you did a good job. The problem is when you change it. There being no further opposition to the proposal, the public hearing was closed and it was opened to Board discussion. Discussion Fraser apologized for arriving late, and asked about the change in the staff recommendation. Wilson commented that the initial proposal was a zone change from -) SAG-10 to SAG-5. There was no development plan that went along (� with that proposal. There has been no change in the original proposal for a zone change. That is what -the adjoining property owners were notified of. They were notified in compliance with the county and state regulations. The development plan that was put together by the engineer, the applicant and the surveyor, was 0 an attempt to address some of the access and zoning issues that came up during the evaluation of the request. Lopp noted that discussion needs -to focus on whether this zone change is appropriate for the area or not. He felt there was exaggeration on both sides of the question. There are significant points that I am concerned with. (1) This area was zoned in 1993. (2) The property was purchased in 1994, knowing what the zoning was. Being thoroughly involved in what were community goals for that property. (3) This description means absolutely nothing, because the proposed development plan is not part of the zone request. Once we have granted the zone change, they can draw any kind of sketch they want. They can do whatever the county regulations permit. There is nothing that we do tonight that would require them to follow this plan. Nor do we have any plan right behind it. Usually, if we have a development plan, we act on the zone change request, and the next thing is the development plan. (4) I am concerned about hydrology in the area, despite what Mr. Johnson said. In our subdivision, we are faced with putting in a second well, doubling our tank storage area, because of a drop in the water table, and we are upstream from this area by quite a ways. (5) The issue of the finances of the property owner cannot be considered in zoning. I don't feel that enough work has been done on this. Any time a change comes in on the day of -the public hearing, is asking too much of the staff to try to react. The adjacent property owners affected by this have not had an opportunity to react to it, and prepare for it. I am still confused as what the maximum allowable density is on the site. From the staff report, I see that under the cluster provision, six units are permitted under the County regulations. That is what I have to go with. Whether the Millspaughs are the owners or they sell it. Once the zoning is changed, everything permitted in that zoning designation is a possibility. I cannot support this. Fraser clarified that this is one parcel consisting of 22.889 acres, part of which is SAG-5 and part is SAG-10. He said that he remembers that most of the Planning Board members were involved when this area was zoned in 1993. We have grave concerns with slope, fire hazard, access problems. We zoned Wapiti Acres SAG-5, even though the lots were not that size, simply because it existed. I would agree that changing -the zone and having the implications in the change in density, when we looked at that at great length and came to that determination. It went through the proper process. Because of the limitations of the site, it is probably suitable for the zoning that is currently there. The issues that were brought up during the public process regarding the development plan, the hydrology, those issues are specific to a subdivision, and we are looking at planning issues, not specific �J site design and details. Conner agreed that based on the information provided us, and the lack of information, with this 11th hour change. 0 l) �J Wilson suggested the Board could also continue the matter to give the applicant an opportunity to prepare a preliminary plat to go with the zone change request. Hash commented that we can, as a Board, act on the zone change request tonight. One of the strongest principles for denying the zone change, is that this was recently zoned SAG-10, with a lot of controversy, a lot of input from the public, from the very landowners affected, it involved many staff hours, and many volunteer hours. It was determined that SAG-10 was appropriate. That was in 1993. Mrs. Millspaugh bought -the property knowing that zoning, and now due to her own actions, they now wish to change that, to bail themselves out. I have a problem with changing a zone. This does not consider the whole, -the good of the community, the consensus of what is good for more than just one. Motion Lopp moved to adopt the original report #FZC-95-14 as findings of fact, and based on the findings, recommend to the Board of County Commissioners that the requested zone change from SAG-10 to SAG-5 be denied, as the original report stated. Bahr seconded. On a roll call vote Bahr, Lopp, Sanders, Hodgeboom, Carlson, Conner, Fraser, and Hash voted aye. The motion carried unanimously to deny the Millspaughs' zone change request from SAG-10 to SAG-5. OLD BUSINESS There was no old business. NEW BUSINESS Wood handed out the new Extension of Services Plan which was adopted by the City Council, to be included in the Board's notebooks. Jentz announced that Bob Sanders and Mike Conner were reappointed to serve on the Planning Board. The new County appointee is Joe Brenneman. The member -at -large position will be filled at the January meeting. The two interested applicants are Dave Mason, a city resident, and Jean Johnson, a city resident. There will be one item at the January meeting. Jentz suggested having an educational work session at the January meeting, since it is a short agenda. Carlson had extra copies of the High Country News featuring conservation easements. Carlson suggested that the "-takings" issue be discussed at a work session as it pertains to land use. Conner announced that the Montana Land Reliance has a 14 minutes video on conservation easements, and could make that available for the Board, if they were interested. The Board expressed an interest in further discussion of impact fees. John Parsons had provided study reports, done in Gallatin County, and they would like to hear more about it. 10 Michael Fraser and Robert Lopp will be leaving the Planning Board. The Board expressed appreciation for their years of service. ADJOURNMENT There being no further business, the meeting was adjourned at 5:45 p.m. •,I Therese Fox Hash, President izr i Ontko, Recording Secretary I APPROVED: 0W 1 �/